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Backgrounder – The Mandatory Requirements of the Canada Marine Act
The Canada Marine Act contains mandatory requirements for the appointment of directors: that

  • A consultation process with port users be followed, and
  • Aside from one nominee from each of the federal, provincial, and municipal governments, the rest of the directors must be appointed as a result of that consultation.

Transport Minister Baird has continued to totally disregard those requirements in his action today.
In fact, to the best of our knowledge, none of the directors are representative of any of the port users.
Here is s. 14 of the Canada Marine Act:

14. (1) The directors of a port authority shall be appointed as follows:


(a) the Governor in Council appoints one individual nominated by the Minister;
(b) the municipalities mentioned in the letters patent appoint one individual;
(c) the province or provinces mentioned in the letters patent appoint one or two individuals as mentioned in the letters patent; and
(d) the Governor in Council appoints the remaining individuals nominated by the Minister in consultation with users selected by the Minister or the classes of users mentioned in the letters patent our emphasis].


The Toronto Port Authority Letters Patent state (or at least they did, until they were apparently amended by Order-in-Council):

4.6 Appointment of Directors. The directors of the Authority shall be appointed to hold office as follows:


(a) the Governor in Council appoints one (1) individual nominated by the Minister;
(b) the City of Toronto appoints one (1) individual;
(c) the province of Ontario appoints one (1) individual;  and
(d) the Governor in Council appoints the remaining four (4) individuals nominated by the Minister in consultation with the users selected by the Minister, or the classes of users[our emphasis].

4.17 Nomination Process for User Directors. The classes of users established for the purpose of providing candidates for user director positions are listed in Schedule D [see below].


Each class of users is responsible for providing candidates for one such position. With a view to ensuring that the length of any user director vacancy is minimized, the chief executive officer of the Authority, or such other person who may be designated by the Board in the absence of the chief executive officer, shall facilitate and provide administrative support for the following process:


(a) within six months of the date that these Letters Patent become effective, the chief executive officer shall cause meetings to be held with each class of users specified in Schedule D for the purpose of notifying each class of users to establish a nominating committee to be comprised of not less than three (3) members and not more than five (5) members, which is to be responsible for the development of procedures for soliciting, receiving and reviewing the candidates proposed by their respective class of users; these procedures are to include the following:


(i) the use of public notices in newspapers and trade journals, and any other methods, to advertise the vacancy of a user director position and to solicit the submission of names of candidates to fill such position; and

(ii) the review of the candidates to ensure that each has the skills, background and experience required of directors of the Authority and that each is eligible to be appointed as a director under the Act;

(b) in the event of a vacancy for a user director position, or at least four (4) months in advance of an anticipated vacancy for such position, the chief executive officer shall contact the nominating committee of the appropriate class of users to request such nominating committee to provide candidates for the relevant user director position; the nominating committee shall then carry out its functions in accordance with the procedures established under subsection (a) above with a view to providing the Minister with a list of candidates within thirty (30) days of request from the chief executive officer;

(c) the Minister requires the following information in writing:

(i) a list of all the candidates who responded to the public notices and other methods devised under subparagraph 4.17(a)(i);

(ii) the curriculum vitae of each candidate listed in accordance with paragraph 4.17(c)(i) and any other information or document communicated by such candidates with a view to supporting their nomination;

(iii) a short list of candidates, comprising a minimum of two (2) and a maximum of four (4) candidates recommended by the appropriate nominating committee for the relevant user director position; and

(iv) a written confirmation by the nominating committee that each candidate on the short list is eligible to be appointed as a director under the Act.

4.18 Scope of Process. Nothing in the process described in section 4.17 is intended to or shall derogate from, interfere with, or substitute for, any consultation, inquiry, public input or process the Minister chooses to undertake in determining the candidates to be nominated by the Minister pursuant to provisions of paragraph 14(1)(d) of the Act. The Minister, in consultation with users[our emphasis], shall at all times have the flexibility and discretion to nominate as user directors persons other than those persons recommended by the classes of users to ensure an appropriate mix of Board members at all times.
And Schedule D to the TPA Letters Patent:

CLASSES OF USERS

CLASS 1
Port Related Activities/Operators
— Operators
— Shippers
— Carriers
— Brokers/Freight Forwarders

CLASS 2

Airport
— Airlines
— Fixed Bases Operators
— Training Schools
— Repairs
— Fuel providers

CLASS 3

Commercial Users
— Developers
— Crushers/Aggregates
— Hotel Operators
— Retail Business
— Other Non-marine, Non-air Shippers/Transporters
— Other Commercial Users

CLASS 4

Recreational Business
— Tour Boat Operators
— Marinas/Yacht Clubs
— Cultural Businesses
— Recreational Service Industries

Users may not be included in more than one class. Those who are members of a group or association may not vote individually. A company and any entity in which it holds an interest are treated as a single entity.

We understand a process was undertaken by the TPA some years ago, but the directors appointed by the Harper government were not the result of this process.