Letter Decision No. LET-W-15-2006

In accordance with section 52 of the Canada Marine Act, the mandate of the Canadian Transportation Agency is to carry out an investigation of complaints that there is unjust discrimination in a fee fixed by a port authority. On October 11, 2005, Neil Surry filed a form complaint that there was unjust discrimination in the passenger fees being levied by the Nanaimo Port Authority. This initial complaint triggered the Agency's mandate under section 52 of the Canada Marine Act and subsequently, additional form complaints were filed as well as a complaint jointly filed by Amigo Airways Corp. (Amigo) and Kenmore Air Harbor Inc. (Kenmore) The fast ferry operator out of the port, HarbourLynx later on requested and was granted intervener status in the proceeding.

Throughout the written submissions that have been filed to date, reference has been made to the section 50 of the Canada Marine Act and specifically to the portion describing allowable discrimination among users at a port. The Agency has examined the definition of "user" under section 5 of the Canada Marine Act and acknowledges that it includes persons who make commercial use of the port or provide services at a port.

In this case, the commercial users are service providers such as Amigo and Kenmore. While these operators collect the impugned fees, as given to them by their passengers, they do not, themselves, pay the fee. Rather, it is the passengers who pay the fee upon their making use of the transportation services provided. As such, they are not commercial users and, consequently, they are not statutory users within the meaning of section 50. Thus, section 50 of the Canada Marine Act does not apply.In view of this preliminary finding, the Agency is hereby providing the complainants and intervener an opportunity to submit comments on what in this case might be considered to be - or not to be - unjust discrimination among passengers or non-users at the port within the meaning of section 52 of the legislation.

Comments from the complainants and intervener in support are to be filed with the Agency no later than January 30, 2006, with a copy to be sent to the Nanaimo Port Authority at the same time. The Nanaimo Port Authority will then have until February 6, 2006 to file an answer to any such comments with a copy to the complainants and intervener at the same time.

As the complainants, Neil Surry et al are numerous and they have not replied to Agency correspondence following the filing of their complaints, the Agency shall notify each by regular mail of these proceedings and they will be advised that the full record is available upon request to the Agency.

Should you have any questions, you may contact Agency counsel Ron Ashley or Andray Renaud who may be reached at (819) 997-9324 or (819) 953-8941, respectively. The Agency may also be contacted by facsimile at (819) 934-0631.