Acting Chief Justice Roxane George, SC yesterday dismissed an application by the Berbice Bridge Company Inc (BBCI) to quash a Toll Order by the Public Infrastructure Minister David Patterson which prevented it from implementing planned increases.
The Chief Justice, in dismissing the application, also ruled that the action by Patterson did not amount to a takeover of the bridge, as was claimed by the company in its application.
In 2018, the company announced plans to implement massive toll increases which were to take effect from November 12th, 2018.
Patterson, however, referred to the planned increases as unconscionable, and caused to be issued a Toll Order by which he froze the toll fares of the BBCI. BBCI, as a result, filed an application in 2018 claiming that Patterson is not required by law to approve toll increases, has no lawful authority to prevent the company from moving ahead with its planned increases, and asked for his action to be quashed.
The company had also asked that Patterson provide reasons for his actions.
The company had said the Toll Order amounted to a takeover of the bridge, and said the action prevented it from taking action to increase tolls which was necessary to sustain the bridge’s operations.
The company had also said in the press release that the increase was decided on after three applications to government for adjustment of the toll were refused.
In her decision yesterday, the Chief Justice took note of the general function and authority conferred on the Minister by section 3 (d) of the Berbice Bridge Act, which states that the Minister “shall” regulate the operation and maintenance of the bridge.”
The Chief Justice also pointed out that section 4(1) (d)(iii) operates to give the Minister the authority to, by toll order, determine the maximum amounts of the tolls that shall be charged during part of or the entire concession period regarding any persons or class of vehicles.
Further, the Chief Justice highlighted that section 4 (2) of the Act provides that while the concessionaire may specify different toll amounts in relation to the use of the bridge by reference to pertinent circumstances, such specifications, are required to be taken only after consultation with the minister.
The legal effect, and implication of those provisions, the Chief Justice emphasised, is that the BBCI could not, and cannot, change the toll unilaterally. She further noted that section 10 of the Act states that a toll order may authorise the Concessionaire to exercise such functions in relation to the bridge as may be specified in the order. On this point, the Chief Justice reasoned that though BBCI may come up with toll amounts, the requirement to consult with the Minister, and the fact that the Minister can set a maximum toll amount, means that he must first approve toll increases, and has lawful authority to prevent the company from moving ahead with any increases that are not approved.
The Chief Justice also noted that section 11 (b) of the Act provides that a function of the concessionaire may be exercised by the Government if the Minister determines that its exercise is necessary or expedient in the interest of public safety. In light of this, and the other provisions of section 11, the Chief Justice said that the argument by the BBCI that a takeover cannot take place cannot be sustained.
Furthermore, the Chief Justice said that a close examination of what transpired reveals that the fact that the toll order was gazetted does not amount to a takeover. Instead, Justice George said, when the toll order is read in its entirety, it is clear that the government, on the authority of section 11 (b) (iii), exercised the function ordinarily belonging to the Concessionaire, only to fix or set maximum tolls for the various categories of vehicles.
It did not, the Chief Justice clarified, take overall control of the bridge’s operations.
The issue, in these circumstances, the Chief Justice reasoned, was whether the function was indeed exercised in the interest of public safety, as is required by the Act. To determine whether it was, the Chief Justice examined the reasons given by Patterson for the toll order, including that the increase planned by the concessionaire was likely to create hardships for the members of the public who depend on the bridge, and could prompt persons to resort to the use of unsafe means to cross the bridge.
Patterson had also argued that the intended increases in such close proximity to local government elections risked raising tensions and disrupting elections. Counsel for the BBCI, however, had argued that there had not been a major protest in Berbice in fifteen years, and that there was unlikely to be one now.
All things considered, the Chief Justice decided that the decision taken by Patterson, having regard to his reasons, served a legitimate public purpose, and was therefore not unreasonable.
As such, having found that the Minister is permitted by the Act to approve, refuse, and influence bridge tolls by setting maximum tolls, the application by BBCI for an order of certiorari to quash the decision of the Minister was refused.
Solicitor General, Nigel Hawke, asked the court to grant minimal costs in the sum of $50,000, which counsel for BBCI, Nikhil Ramkarran, agreed to.
