Decision No. 346-W-1998

July 3, 1998

File No. W9125/I22/98-1

APPLICATION

Invest-Hyp Inc. (hereinafter Invest-Hyp) has applied to the Canadian Transportation Agency (hereinafter the Agency) for a review of Decision No. 259-W-1998 dated June 1, 1998. The application was received on June 9, 1998.

BACKGROUND

Invest-Hyp applied to the Agency pursuant to the Coasting Trade Act, S.C., 1992, c. 31 for a licence to use a foreign unnamed sailing catamaran to provide introduction to sailing excursions and twelve-day sail training cruises, departing from Montréal and sailing on the St. Lawrence River to Tadoussac, and on the Saguenay River to La Baie, Quebec during the period commencing on June 1, 1998 and ending on September 20, 1998.

Following receipt of the application, an offer of a Canadian vessel, the "Cata Fjord", was received from Nordest Marine Inc. (hereinafter Nordest Marine).

In Decision No. 259-W-1998, the Agency determined that a suitable Canadian vessel was available to perform the activity proposed in the application.

On June 9, 1998, Invest-Hyp applied for a review of Decision No. 259-W-1998 on the grounds that Nordest Marine had refused to sign a contract for the use of the vessel "Cata Fjord". Invest-Hyp stated that Nordest Marine should have signed an agreement with Le Centre marin les Blanchons. Invest-Hyp submitted a copy of a letter dated April 1, 1998 addressed to Nordest Marine which contained an outline of Invest-Hyp's intentions to promote sail training and sail excursions with a catamaran as support for its application.

The statements made and issues raised by Invest-Hyp in the application for review did not appear to be substantiated. As a result, by letter dated June 11, 1998, Invest-Hyp was requested to provide additional information and clarification of the application for review by 5 p.m. on June 12, 1998. Invest-Hyp was asked to explain in what way the outline of the sailing program in the April 1, 1998 letter constituted a new agreement between parties, to provide the terms of such a new agreement and evidence that such an agreement had been provided to Nordest Marine and had been refused by Nordest Marine.

On June 19, 1998, the Agency issued Decision No. 313-W-1998 concluding that there were no new facts or circumstances as contemplated under section 32 of the CTA to warrant a review of Decision No. 259-W-1998. In that decision, the Agency indicated that it had not received a reply from Invest-Hyp to the letter of June 11,1998.

On June 22, 1998, Invest-Hyp informed the Agency that it had replied to the letter of June 11, 1998 within the specified deadline. On June 22, 1998, the Agency examined its records of documents filed by fax and confirmed that a document had been received from Invest-Hyp on June 12, 1998. The Agency then proceeded to consider the information filed by Invest-Hyp.

JURISDICTION OF THE AGENCY

Pursuant to section 32 of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), the Agency may review, rescind or vary its decisions if new facts or circumstances have arisen since the issuance of its decisions.

It is important to stress at the outset that the review contemplated by section 32 of the CTA is not an open-ended authority for the Agency to review its decisions. The Agency's jurisdiction under this section is limited and only arises if there has been a change in facts or circumstances pertaining to the decision since its issuance. The Agency must first determine whether there has been a change in facts or circumstances pertaining to its decision and, if so, then determine whether such change is sufficient to warrant a review, rescission or variance of the Decision.

ISSUE

The issue to be addressed is whether or not the information submitted by Invest-Hyp in its letter dated June 12, 1998 constitutes a change in the facts or circumstances pertaining to Decision No. 259-W-1998 since it was issued.

ANALYSIS AND FINDINGS

In its response to the letter of June 11, 1998, Invest-Hyp provided a copy of a handwritten proposal dated November 3, 1997 and a copy of a typed proposal dated November 5, 1997 which Invest-Hyp states formed the basis of discussions with Nordest Marine.

The Agency has considered all the material submitted by Invest-Hyp and is of the opinion that there are no new facts or circumstances which would warrant a review of Decision No. 259-W-1998. The Agency notes that the letter of April 1, 1998 from Invest-Hyp to Nordest Marine was filed as part of the original application. Further to this, the material filed by Invest-Hyp in response to the June 11, 1998 letter dates from November 1997 and should have been filed with the original application.

Invest-Hyp has not provided evidence that a new agreement has been drawn up and refused by Nordest Marine since Decision No. 259-W-1998 was issued. As such, Invest-Hyp has failed to provide evidence to show that the "Cata Fjord" is not available.

CONCLUSION

The Agency concludes that the information provided by Invest-Hyp in its application for review of Decision No. 259-W-1998 dated June 1, 1998 does not constitute new facts or circumstances as contemplated in section 32 of the CTA.

Accordingly, the Agency hereby dismisses the application for review.