Court File and Parties

Court File No.: Niagara Region 999 17 0976 Date: 2019-12-18 Ontario Court of Justice

Between:

Her Majesty the Queen (Respondent)

— and —

Great Lakes Stevedoring Company Ltd., Port Weller Terminal Inc., Bruce Graham, Kenneth Snider, and Denis Dupuis (Applicants)

Before: Justice J. De Filippis

Heard on: October 28 & 29, 2019

Reasons for Ruling released on: December 18, 2019

Counsel:

• Ms. K. Clements and Mr. R. Amarnath, counsel for the Respondent
• Mr. M. Rosenberg and Ms. Seaborn, counsel for the Applicants

Reasons for Ruling

De Filippis, J.:

1. Introduction

[1] The St. Lawrence Seaway is a marine highway that extends from the Atlantic Ocean to the Great Lakes and includes the Welland Canal. It is managed by Canada in partnership with the United States of America. The Welland Canal connects Lake Ontario and Lake Erie, allowing ships to overcome the Niagara Escarpment. This case concerns charges laid against three individuals and two companies involved in stevedoring at the canal.

[2] At the time of the alleged events, the Applicants' business structure was as follows: Great Lakes Stevedoring Company Ltd. was a private federal corporation. It was amalgamated with the Quebec Stevedoring Company Ltd., also a private federal corporation. Bruce Graham was the Vice-President of the former company. Denis Dupuis is Founder and Chairman of the latter one. At all material times, Great Lakes Stevedoring was a 50% shareholder in the Port Weller Marine Terminal Inc. Snider Marine Terminals Inc. was the other 50% shareholder and its President is Kenneth Snider. The sole business of the Port Weller Marine Terminal is stevedoring. It operates at the terminal in Port Weller, Ontario, on the Welland Canal and provides logistical services for the loading and unloading of cargo at the Terminal, including vessels that travel to and from foreign ports. Great Lakes Stevedoring acts as its broker.

[3] Pursuant to the Canada Marine Act and the Seaway Property Regulations, the St. Lawrence Seaway Management Corporation is the agent of the federal Crown. The terminal is located on lands owned by the federal Crown and form part of the St. Lawrence Seaway. Snider Marine Terminals leases the lands from the federal agent. Pursuant to a verbal sublease, Port Weller Marine Terminal stands in place of Snider Marine Terminal and pays the rent due to the federal agent.

[4] Federal White Cement Inc. bought cement clinker, which is a solid that becomes highly caustic when wet and can burn the eyes and skin. It shipped the cement clinker on a vessel called the "Puffin" to the terminal. Federal White Cement contracted with Great Lakes Stevedoring to handle the cement clinker through the terminal. The Puffin arrived at the terminal with the first shipment of clinker in April 2016 and with a second shipment of clinker in July 2016.

[5] Messrs. Dupuis, Graham, and Snider along with Great Lakes Stevedoring and Port Weller Marine Terminal are charged with discharging a containment into the natural environment contrary to s. 14(1) of the Environmental Protection Act and failing to report this discharge contrary to s. 92(1)(a) of the Act (collectively, the "Challenged Provisions"). These charges stem from two occasions in which stevedores engaged by one of the defendants unloaded dry bulk goods from a foreign ship on federal public property. It is alleged that clinker was discharged and fell on residential properties in the Port Weller neighbourhood (St. Catharines), depositing dust on the surface of homes, patio furniture and cars in a way that prevented normal use of personal property.

[6] The Applicants claim that the Challenged Provisions do not apply to them because their stevedoring activities, on federal public property, come within the exclusive core of federal jurisdiction. In the alternative, it is asserted that the application of the impugned provisions to these stevedoring activities frustrate the purpose of relevant federal legislation. These claims engage the doctrines of "interjurisdictional immunity" and "federal paramountcy".

[7] If interjurisdictional immunity or federal paramountcy applies, the remedy available to the Applicants is for me to decline to apply the Challenged Provisions. This would end the prosecution.

[8] These reasons explain why I have decided not to grant the remedy.

2. Constitutional and Legislative Provisions

[9] Sections 91 and 92 of the Constitution Act, 1867 assign areas of exclusive jurisdiction to the federal and provincial governments. The environment is not a separate head of power. Environmental regulation is subject to overlapping federal and provincial jurisdiction.

[10] According to the doctrine of interjurisdictional immunity, an exclusive jurisdiction can be protected from the effects of a law validly enacted by another level of government. For the doctrine to apply, the impugned provision(s) must trench on the core of an exclusive head of power under the Constitution Act such that it impairs the exercise of that power. According to the doctrine of federal paramountcy, when valid provincial and federal legislation are incompatible, the federal law prevails and the provincial law is declared inoperative to the extent of the inconsistency.

[11] The seaway is governed by various statutes, including the Canada Marine Act. The preamble to the Act refers to making "the system of Canadian ports competitive, efficient and commercially oriented" and for "the commercialization of the St. Lawrence Seaway". Section 4 provides as follows:

In recognition of the significance of marine transportation to Canada and its contribution to the Canadian economy, the purpose of this Act is to…,

(d) provide for a high level of safety and environmental protection;

(e) provide a high degree of autonomy for local or regional management of components of the system of services and facilities and be responsive to local needs and priorities;

(f) manage the marine infrastructure and services in a commercial manner that encourages, and takes into account, input from users and the community in which a port or harbour is located;

[12] The Regulations to the Act include the following provisions:

22 If, in the Seaway or on Seaway property, a person conducts an activity that is likely to have any of the results prohibited under section 5 and for which no authorization under these Regulations is required, the Manager may instruct the person to cease the activity or to take the precautions necessary to mitigate or prevent the result.

30 (1) The Manager may give a written authorization under this section to a person to conduct, in the Seaway or on Seaway property, an activity set out in column 1 of the schedule if an "X" is set out in column 3.

(2) On receipt of a request for an authorization, along with payment of the applicable fee, if any, and the information required under subsection 31(2), the Manager shall

(a) give its authorization;

(b) refuse to give its authorization if the results of the conduct of the activity are uncertain, or if the conduct of the activity is likely to have any of the results prohibited under section 5 and the results cannot be mitigated or prevented;

(c) if the conduct of the activity is likely to have any of the results prohibited under section 5, give its authorization subject to conditions that are designed to mitigate or prevent the results; or

(d) refuse to give its authorization if the person's insurance coverage is inadequate for the conduct of the activity.

[13] The relevant provisions of the Environmental Protection Act are these:

14 (1) Subject to subsection (2) but despite any other provision of this Act or the regulations, a person shall not discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment, if the discharge causes or may cause an adverse effect. 2005, c. 12, s. 1 (5).

92 (1) Every person having control of a pollutant that is spilled and every person who spills or causes or permits a spill of a pollutant shall forthwith notify the following persons of the spill, of the circumstances thereof, and of the action that the person has taken or intends to take with respect thereto, (a) the Ministry;

[14] Pursuant to section 1 of the Act, "adverse" means one or more of:

(a) impairment of the quality of the natural environment for any use that can be made of it,

(b) injury or damage to property or to plant or animal life,

(c) harm or material discomfort to any person,

(d) an adverse effect on the health of any person,

(e) impairment of the safety of any person,

(f) rendering any property or plant or animal life unfit for human use,

(g) loss of enjoyment of normal use of property, and

(h) interference with the normal conduct of business;

3. Constitutional Questions

[15] That the Environmental Protection Act is a law of general application which applies to federal lands and undertakings is not controversial. Accordingly, the Applicants' claims raise the following questions:

(1) Do the Challenged Provisions impair the core of a federal power (interjurisdictional immunity)?

(2) Do the Challenged Provisions frustrate the purpose of the Canada Marine Act and Seaway Property Regulations (federal paramountcy)?

4. Preliminary Procedural and Evidentiary Issues

[16] I am the assigned trial judge in this matter. At a judicial pretrial before one of my colleagues, two days were set aside for the determination of the constitutional questions with a trial to follow, if the defence motion fails. On receipt of the motion material from the Applicants and Respondent, I noted certain factual disputes that might be relevant to the constitutional questions. I contacted the parties to alert them to my concern about whether an appropriate evidentiary record had been put before me on the application.

[17] The Applicants' claim that it would be unconstitutional to allow their trial to proceed: that is, as a matter of interjurisdictional immunity, or by the application of the doctrine of federal paramountcy, I should instead declare that the impugned provisions of the provincial statute are inapplicable to the stevedoring activities at issue and quash the charges.

[18] The Respondent would have preferred to argue this constitutional issue at the end of the trial, if necessary, but states that at the judicial pretrial, my colleague accepted the Applicants' argument and directed that this application be heard before trial, based on the allegations. That is, I am to determine, should the allegations be found true at trial, whether the Challenged Provisions govern the Applicants' activities in question.

[19] I have reviewed the case management notes prepared by my colleague. It appears to me that in directing the parties to proceed as he did, my colleague anticipated that there would not be significant evidentiary or factual disputes with respect to the constitutional questions. Indeed, he noted that certain material, including "ASF" might be filed on the application. I take ASF to mean "agreed statement of facts". Such a document has not been prepared. However, there is voluminous evidence before me in the material filed on this application.

[20] At the commencement of this application, in response to the concerns I expressed, the parties reiterated their view about whether the constitutional questions should be decided before or after a trial. I noted that several months had elapsed since the judicial pretrial and that two days had been set aside for the motion. I agreed to proceed in the manner directed by my colleague, if there was an evidentiary basis to resolve any relevant factual disputes. In the event this was not possible, the parties might be directed to produce such evidence, or I might suspend a decision on the constitutional questions pending a trial.

[21] Having heard the submissions by the parties and reviewed the materials filed by them, I find that there is an adequate evidentiary record to decide the constitutional questions at this time.

5. Evidence Relevant to the Constitutional Issues

[22] Where relevant, I will refer to the evidence as part of the legal analysis below. However, it will be helpful review some of it at this time. The evidence includes statements, affidavits, correspondence, and emails. Several people were cross-examined on their affidavits. In this regard, the lengthier transcripts pertain to Mr. Gaudreau and Officer McConnochie. The former is the Legal Affairs Director for one of the Applicants, and the latter is a provincial investigator with the Ministry of the Environment, Conservation and Parks (the "Ministry").

[23] Officer Farrell, a provincial environmental officer, had received advanced notice of the arrival of the Puffin, and she warned the federal authorities (i.e. the St. Lawrence Seaway Management Corporation) on April 12 that it should ensure that Port Weller Marine Terminal took appropriate measures to control fugitive dust. Beginning on April 19, the latter company unloaded approximately 21,600 metric tonnes of clinker from the Puffin. On April 20, Officer Farrell went to the terminal and directed that the company provide the Ministry with a dust mitigation plan to ensure that its handling of clinker conformed with the Environmental Protection Act. Two days later, Lisa Allan, a federal investigator with the seaway management corporation, went to the terminal and directed Port Weller Marine Terminal to stop unloading clinker. After discussing the federal environmental obligations with the company, she authorized it to continue unloading clinker. Over the days that followed, Officer Farrell made several visits to the terminal and conveyed her concerns about the unloading of clinker to the seaway management corporation, which relayed them to the Applicants. In response, Port Weller Marine Terminal provided the federal and provincial authorities with a dust mitigation plan.

[24] On April 27, federal environmental officers went to the terminal to review the operations of Port Weller Marine Terminal and conduct tests. The St. Lawrence Seaway Management Corporation approved a revised dust mitigation plan on May 27 and authorized the company to unload clinker accordingly. Later that day, Officer Farrell, emailed Mr. Graham to provide further direction to company, stating that "[i]n accordance with s. 14 of the Environmental Protection Act (EPA), ensure your dust mitigation plans are in place (such as water misting) and remind staff that they have to monitor wind speed regularly to account for wind gusts (which could mobilize Clinker dust and debris resulting in off-site impacts)". She also told Mr. Graham that Port Weller Marine Terminal was required to report all spills to the provincial Spills Action Centre.

[25] Relying on the authorization given by the seaway management corporation, Port Weller Marine Terminal received another shipment of clinker aboard the Puffin, which began discharging at the terminal on July 26, 2016 and continued for three days. On July 28, Officer Farrell forwarded a dust complaint from an area resident to Steven Murray, a federal environmental advisor to the seaway management corporation. Mr. Murray went to the terminal that same day to follow up, advised Port Weller Marine Terminal that he was satisfied with the dust mitigation measures in place, and communicated this to the provincial investigator.

[26] August 12, 2016, Environment Canada warned the Applicants that they had violated the Fisheries Act by discharging contaminants in the water, but charges were not laid. In December 2017, shortly after the expiry of the one-year limitation period for charges under the Canada Marine Act, the provincial authorities laid the present charges. Officer McConnochie testified that "[w]e don't enforce the Environmental Protection Act unless the impact is offsite". He noted that the Ministry "would not treat a federal property differently than a privately owned or provincially owned or any other property". Nor would it treat stevedoring activities any differently". Officer McConnochie confirmed that the charges were recommended without consideration about whether Port Weller Marine Terminal was complying with the dust mitigation protocol approved by the federal authorities. Moreover, he did not consider the impact that these charges would have on the Applicants' respective businesses.

[27] The Applicants contend that the provincial officers directed Port Weller Marine Terminal to make "extensive changes to its operating procedures for offloading clinker" in order to comply with the provincial legislation. It is said that these changes significantly slowed the pace at which the company could unload the cargo, causing delay in deliveries and additional costs for labour and new equipment. Mr. Gaudreau testified that, in response, the company decided not to renew its contract with Federal White Cement. This decision resulted a 50% decrease in business.

6. Interjurisdictional Immunity

[28] Interjurisdictional immunity protects the core of each head of legislative power, rooted in ss. 91 and 92 of the Constitution Act. However, the impugned legislation must do more than intrude upon the other head of power. This test was confirmed in Western Bank et al v. Alberta. The Supreme Court held "…At this point, we should complete our reassessment begun in Irwin Toy and hold that, in the absence of impairment, interjurisdictional immunity does not apply." This approach looks to the legitimate interplay between federal and provincial powers. In this case, it is not enough that the Challenged Provisions incidentally affect the Applicants' stevedoring activities. The Supreme Court has held that interjurisdictional immunity will only apply if the law impairs the core of a federal power or undertaking:

"Impairment" is a higher standard than "affects". It suggests an impact that not only affects the core federal power but does so in a way that seriously or significantly trammels the federal power. In an era of cooperative, flexible federalism, application of the doctrine of interjurisdictional immunity requires a significant or serious intrusion on the exercise of the federal power. It need not paralyze it, but it must be serious.

[29] The Applicants claim that the Challenged Provisions impair activities that come within the federal power over two matters; navigation and shipping (s. 91(10) and federal public property (s. 91(1A)).

Navigation and Shipping

[30] The Respondent argues that the interjurisdictional immunity doctrine is not engaged because the activities in question do not go to the core of the federal power over navigation and shipping. I disagree. Parliament's exclusive jurisdiction over navigation and shipping includes stevedoring because the handling and dockside storage of goods at a port is integral to shipping. Indeed, the Canada Marine Act charges port authorities with regulating the "handling of goods and storage of goods", which includes stevedoring.

[31] The Applicants say the provincial legislation in question imposed the Ministry as a regulator of the way Port Weller Marine Terminal unloaded foreign ships on federal public property and dictated the terms on which it could provide stevedoring services. It is claimed that, as such, the provincial authorities directed significant operational changes that ultimately undermined the activity, resulting in impairment of protected core of federal authority. I disagree.

[32] The Challenged Provisions do not intrude on any matter that is indispensable for the Applicants to load and unload cargo from ships, or to remove cargo from a port. All that the Applicants are required to do is load and unload cargo in a manner that does not discharge contaminants into the natural environment, and to report such discharges if they occur. Discharges of the kind in question are not central to the business of shipping and the Challenged Provisions do not impair the practices of navigation and shipping or the federal power over this activity. In any event, I find that the Applicants have not established an evidentiary foundation for their claim.

[33] Mr. Gaudreau's description of the impact on the commercial enterprise suffered under cross-examination. He was confronted with the suggestion that the mitigation plan simply reinforced obligations arising from federal regulatory regimes. His answers can be fairly characterized as generalized assertions: He could not point to specific changes made to operational procedures undertaken by the Applicants' stevedoring operations as a result of the intervention of provincial authorities. He did not provide evidence identifying what new measures were required and what expenses were incurred to comply with the Challenged Provisions. Generalized claims that compliance with the impugned provisions could result in increased operating costs are insufficient to constitute impairment.

[34] I conclude that the Challenged Provisions do not impair the core of the federal power over navigation and shipping. I come to the same conclusion with respect to the matter of federal public property.

Federal Public Property

[35] In this case, the terminal is on lands owned by the federal Crown. The Applicants' correctly assert that "control over the planning and use of federal public property for the purpose of engaging thereon in an activity that falls exclusively under federal jurisdiction forms part of the 'core' of the power over federal public property within the meaning of s. 91(1A) of the Constitution Act." The Court of Appeal for Ontario has held that this means the federal Crown has "absolute jurisdiction over land uses on lands owned by the [the Crown agent] to be developed for shipping and navigation or harbour purposes". However, it does not follow that the Challenged Provisions impair that jurisdiction.

[36] The use or management of the property in question is not restricted beyond the general environmental requirements imposed on activities that take place on this land. The Challenged Provisions do not regulate how the land is used. This case is analogous to the National Battlefields case, in which it was held that provincial safety laws (of general application) applied on federal public property. Moreover, the Quebec Court of Appeal has observed that,

With some exceptions, a provincial normative scheme of general application that seeks to control or prohibit the release of contaminants in the environment….is not liable, in and of itself, to interfere with the core of the federal jurisdiction over public property. Any jurisdictional conflicts that may arise under such circumstances must be settled through the use of the doctrine of federal paramountcy, rather than the doctrine of interjurisdictional immunity.

7. Federal Paramountcy

[37] Federal paramountcy solves the problem that arises when a federal law and a provincial law are each valid and inconsistent. In such a case, the federal law prevails. The laws will be inconsistent if compliance with both laws is impossible, or if the effect of a provincial law frustrates the purpose of the federal law. Environmental regulation is within the competence of both the federal and provincial governments.

[38] The Applicants concede there is no operational conflict in this case. They assert that the Challenged Provisions frustrate the purposes of the Canada Marine Act and Seaway Property Regulations.

[39] The Supreme Court of Canada has stated that the paramountcy doctrine should be applied with restraint and that it is difficult to establish a frustration of federal purpose:

Under both branches of paramountcy, the burden of proof rests on the party alleging the conflict. This burden is not an easy one to satisfy, as the doctrine of paramountcy is to be applied with restraint. Conflict must be defined narrowly so that each level of government may act as freely as possible within its respective sphere of constitutional authority. "[H]armonious interpretations of federal and provincial legislation should be favoured over an interpretation that results in incompatibility…in the absence of 'very clear' statutory language to the contrary"…."It is presumed that Parliament intends its laws to co-exist with provincial laws"….[T]he application of the doctrine of paramountcy should also give due weight to the principle of co-operative federalism. This principle allows for interplay and overlap between federal and provincial legislation. While co-operative federalism does not impose limits on the otherwise valid exercise of legislative power, it does mean that courts should avoid an expansive interpretation of the purpose of federal legislation which will bring it into conflict with provincial legislation.

[40] In Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., the same court added these comments:

To prove that provincial legislation frustrates the purpose of a federal enactment, the party relying on the doctrine "must first establish the purpose of the relevant federal statute, and then prove that the provincial legislation is incompatible with this purpose"….The burden a party faces in successfully invoking paramountcy is accordingly a high one; provincial legislation restricting the scope of permissive federal legislation is insufficient on its own.

[41] The preamble to the Canada Marine Act declares that its purpose is to make Canada's ports "competitive, efficient and commercially oriented" and to provide for "the commercialization of the St. Lawrence Seaway". It expressly calls for a balance between these economic objectives and other interests, including environmental concerns. The Seaway Property Regulations create a regime in which the manager, as agent of the federal Crown, is charged with harmonizing the competing interests. Where an activity is likely to produce prohibited results, such as environmental harm, the federal manager has jurisdiction to either bar the activity or "give its authorization subject to conditions that are designed to mitigate or prevent the results".

[42] Ontario's Environmental Protection Act is focussed on environmental protection. Moreover, even with respect to the common interest in environmental protection, the federal and provincial statutes apply a different test. Section 14 of the Environmental Protection Act addresses actual outcomes, rather than likely results and allows the Ministry to authorize discharges that may, but are not likely to, cause an adverse effect – and which does not, in the result, cause an adverse effect. It is not surprising, therefore, that Officer McConnochie, the provincial investigator, confirmed that he did not consider the commercial implications in recommending charges against the Applicants. The Applicants claim that this is fundamentally at odds with the federal regime.

[43] The thrust of the Applicants' submission is this: The balancing exercise provided for in the federal regime is incompatible with the outright prohibition on adverse environmental effects as set out in the provincial legislation. The Applicants were charged for conduct that the seaway management corporation had approved, and which brought significant economic activity to the federal port lands. This frustrates the purpose of the federal legislation and the statutory mandate given to the federal agent. Counsel for the Applicants pressed this point with these words: "…the present case is an example of a flexible federal scheme running aground on a rigid provincial enactment and the doctrine of federal paramountcy must intervene to prevent this result".

[44] The Respondent argues that the Challenged Provisions do not frustrate the purpose of the Canada Marine Act. On the contrary, the prohibition and reporting requirements respecting the discharge of contaminants are harmonious with its purposes of safety, environmental protection, local or regional management, responsiveness to local needs, and considering input from users and from the community. Similarly, there is no inconsistency with the Regulations. The latter prohibit, without authorization from the federal manager, any activity on the seaway that will or is likely to result in specified adverse consequences. Authorization pursuant to these provisions is not frustrated by compliance with provincial environmental protection laws. Rather, the Challenged Provisions align with the federal Regulation's prohibitions against "jeopardiz[ing] the safety or health of persons in the Seaway or on Seaway property;" adversely affect[ing] sediment, soil, air or water quality; or "adversely affect[ing] Seaway operations or Seaway property". The Respondent submits that such "permissive federal legislation, without more, will not establish that a federal purpose is frustrated when provincial legislation restricts the scope of the federal permission."

[45] In opposing the claim that federal paramountcy applies, the Respondent relies on Quebec (Attorney General) v IMTT – Quebec Inc. The Quebec Court of Appeal held that

The general prohibition set forth in s. 20 of the EQA, which targets the release of any contaminant whose presence in the environment "is likely to adversely affect the life, health, safety, welfare or comfort of human beings, or cause damage to or otherwise impair the quality of the environment or ecosystems, living species or property," is entirely consistent with the Canadian port laws and regulations, particularly the Port Authorities Operations Regulations and the Canadian Environmental Assessment Act, 2012, which prohibit Canadian port authorities from approving a project in a Canadian port that is likely to cause significant adverse environmental effects.

[46] IMTT is instructive because the Quebec statute in question contains legislation that is similar to the Challenged Provisions. Moreover, the respective Regulations to both provincial statutes are analogous. The Applicants say that IMTT is distinguishable because it concerned a "project" as defined in s. 67 of the Canadian Environmental Assessment Act; that is, the construction of a physical work (large liquid storage tanks). This, it is said, is different than the unloading of a ship. Thus, the discretion given to the seaway management corporation, in the present case, to authorize activities on federal Crown property was not bounded by the Canadian Environmental Assessment Act. In any event, even if this Act imposed bounds on St. Lawrence Seaway Management Corporation, the latter can authorize activity that has a negative environmental impact, provided it is not significant, or if it is significant, provided the impact is not likely.

[47] In my opinion, the effort to distinguish IMTT fails. I do not consider the holding to be dependant on the definition of "project" and its applicability is not undermined by the discretion given to the St. Lawrence Seaway Management Corporation. Authorization by the latter is not frustrated by the Challenged Provisions. I am also guided by these additional comments by the Quebec Court of Appeal:

…solutions to conflicts between schemes established by different levels of government to control the release of contaminants into the environment do not consist in determining which of the two schemes applies to the exclusion of the other one, but rather how they can apply concurrently in a harmonious manner. As a result, such conflicts are rare.

[48] It is reasonable to interpret the purposes of the Canada Marine Act and Seaway Property Regulations in a manner that is consistent with the Challenged Provisions. The mere fact that federal authorities permit an activity does not mean the actors are excused from compliance with valid provincial legislation. There is no conflict, even if the provincial law is more restrictive than the federal law, unless the latter confers a positive right. The Supreme Court has said that in the absence of "very clear" statutory language to the contrary, courts should not presume that Parliament intended to "occupy the field" and render inoperative legislation in relation to the subject.

[49] The purpose of the Canada Marine Act is to balance the promotion of trade and commerce with other interests, including environmental concerns. The expression of this purpose in the Act does not reflect a firm Parliamentary intention to oust provincial jurisdiction over the environment. It might be said that this intention is expressed by the fact that – to use the words of the Respondent – "the Challenged Provisions align with the federal Regulation's prohibitions" and the Marine Act requires that the commercialization of the seaway "be responsive to local needs and priorities" and "takes into account, input from users and the community in which a port or harbour is located". In other words, it might be said that there is no room left for provincial concerns. However, the approach to these constitutional questions, as dictated by the Supreme Court, means it would take strong statutory language to support a finding that the diverse duties of the federal manager was intended to occupy the field. Such language is not present in the Marine Act.

8. Result

[50] I conclude that neither interjurisdictional immunity nor federal paramountcy applies. Accordingly, the application is dismissed.

[51] This case was well argued by both sides. I appreciate the fine advocacy demonstrated by counsel.

Released: December 18, 2019

Signed: Justice J. De Filippis