Gateway Packers 1968 Limited (Applicant)
v.
Burlington Northern (Manitoba) Limited and
City of Winnipeg (Respondents)
Court of Appeal, Jackett C.J., Dumoulin and
Thurlow JJ.—Winnipeg, September 15, 16, 17,
1971.
Judicial Review—Railways—Decision of Canadian Trans
port Commission—Relocation of trackage for urban renewal
project—Approval by CTC—Whether relocation "required"
by railway—Whether relocation a "deviation" or "abandon-
ment" of trackage—Intervention by third person—Whether
natural justice denied—No open hearing asked for—No
request made for submissions of others—Railway Act,
R.S.C. 1952, c. 234, secs. 168, 181 and s. 53(2) (now R.S.C.
1970, c. R-2, secs. 106, 119, and National Transportation
Act, R.S.C. 1970, c. N-17, s. 64(2)), Federal Court Act,
1970, c. 1, s. 28.
A railway company applied to the Canadian Transport
Commission for permission to relocate certain of its track-
age in Winnipeg in furtherance of a contract for the sale of
certain of its property to the city for an urban renewal
project. A copy of the railway's application was served on
the Gateway company, which filed an intervention with the
Commission in accordance with the rules of the Commis
sion. Its intervention was based on two grounds: (1) under
s. 181 (now s. 119) of the Railway Act, that the relocation
was "required" not by the railway but by the city; and (2)
under s. 168 (now s. 106) of the Railway Act, that the
relocation was not a "deviation" but an "abandonment" of
trackage. No issue of fact was raised before the Commis
sion relating to these two grounds and no factual material
was put before the Commission by any other person in any
way bearing on those two grounds. The Commission
approved the application. The Gateway company appealed
from the Commission's approval and at the same timc
moved to set it aside under s. 28 of the Federal Court Act,
on the ground, in addition to these mentioned above, that
the Gateway company had been denied natural justice
because the Commission failed to grant it a public hearing
or permit it to answer submissions made by others, and
failed to receive evidence on disputed questions of fact.
Held, dismissing the appeal and motion:
1. The relocation was "required" by the railway within
the meaning of s. 181 (now s. 119) of the Railway Act.
2. The relocation was a "deviation, change or alteration"
of trackage within the meaning of s. 181 (now s. 119) of the
Railway Act even though it might also be an "abandon-
ment" thereof within the meaning of s. 168 (now s. 106).
3. The Gateway company could have obtained copies of
documents filed with the Commission by searching the
Commission's files or by requesting them, and under the
Commission's rules the Gateway company could have had
an open hearing if it had asked for one; and not having done
so it could not complain of having been deprived of a fair
hearing. Moreover, the Gateway company's intervention
was confined to the two grounds specified therein, and it
could not be doubted that the Commission in its considera
tion of the proceedings had concluded, as it was entitled to
do, that there was no dispute between the parties as to any
relevant fact.
Wiswell v. Winnipeg [1965] S.C.R. 512, distinguished;
Bell Telephone Co. v. C.N.R. [1932] S.C.R. 222,
applied.
APPEAL from order of Canadian Transport
Commission and application to set it aside.
P. Schulman and M. Schulman for applicant.
K. B. Peters and G. Anderson for City of
Winnipeg.
G. Kroft and D. Baizley for Burlington North
ern (Manitoba) Ltd.
M. Cuddihy for Canadian Transport
Commission.
JACKETT C.J. (orally)—This proceeding is a
combination of an appeal from Order No.
R-12160 made by the Canadian Transport Com
mission on July 12, 1971, and an application
under s. 28 of the Federal Court Act to set aside
that order.'
An application was made by the first
respondent (hereinafter referred to as "Mid-
land") by a solicitor's letter, bearing date Febru-
ary 1, 1971, and addressed to the Canadian
Transport Commission which, as subsequently
amended, reads, in part:
On behalf of The Midland Railway Company of Manitoba
application is hereby made under Section 181 of the Rail
way Act, Revised Statutes of Canada 1952, Chapter 234
and amendments thereto, for authority to relocate certain of
the Company's track and facilities located within the City of
Winnipeg.
The track in respect to which the said authority for
relocation is sought is shown marked in yellow on Plan No.
1. The proposed new location for the track and facilities is
shown marked in red on Plan No. 2. Both of the said plans
have been certified by the proper officers of the applicant
and have been previously filed.
The land upon which the track and facilities are to be
located is marked in green on Plan No. 2. All of this land is
presently owned by the applicant.
This application is being made pursuant to a contract
between the City of Winnipeg and the applicant whereby
the applicant has agreed to sell and the City has agreed to
buy all of the applicant's property lying East of McPhillips
Street in the City of Winnipeg, for the purpose of an urban
renewal project. As part of the said agreement the applicant
undertook to apply to the Railway Transport Committee of
the Canadian Transportation Commission for approval of
the necessary relocation.
The said relocation will involve the elimination of ten
street crossings now used by the applicant. The only new
crossings which will be required are over Pacific Avenue
and over the unopened and unused portion of Winnipeg
Avenue as shown on Plan No. 2. Approval of these cross
ings is hereby requested.
On July 12, 1971, the Railway Transport Com
mittee of the Canadian Transport Commission
made an order (Order No. R-12160), the opera
tive part of which reads, in part, as follows:
THE COMMITTEE HEREBY ORDERS THAT:
1. Plan No. 2 dated March 19, 1970, which is a plan,
profile and book of reference showing the location of the
relocated tracks and other railway facilities of the Applicant
Company, situated north of Notre Dame Avenue and west
of McPhillips Street, in the City of Winnipeg, is approved
and sanctioned.
2. The said relocated tracks will replace the existing
trackage, as shown in yellow on Plan No. I dated March 19,
1970.
The appeal and the application under s. 28 of
the Federal Court Act are in respect of the
order aforesaid.
The notice of the application under s. 28
states that the following are the grounds of the
application:
1. That the Commission failed to apply Section 181 of
The Railway Act, R.S.C. 1952, Chap. 234, in its interpreta
tion of said Section 181 of The Railway Act when it failed
to find that the said relocation by deviation of trackage was
not required by the Applicant to be made in the railway.
2. That the Commission failed to apply Section 168 of
The Railway Act in its interpretation of the sections of The
Railway Act, specifically 168 and 181, when it found that
the application of The Midland Railway Company of
Manitoba was one for relocation by deviation of trackage
and did not constitute an abandonment of a branch line.
3. That the Commission failed to grant the Intervener,
Gateway Packers 1968 Ltd. a public hearing.
4. That the Commission failed to permit the Intervener,
Gateway Packers 1968 Ltd. to consider and answerr submis
sions by other persons, namely:—
(a) The submission of the Mayor of the City of Winnipeg;
(b) The undertaking of the Midland Railway Company of
Manitoba "to develop the site of the relocated railway in
such a way as to permit Crescent Fruit Co. Ltd. to carry
on its fruit and produce business as soon as Crescent has
acquired new property and developed its new facilities in
the vicinity of the Applicant Company's new track.";
(c) All other submissions which were filed, including
those of the Commission's technical advisors;
(d) Relating to the availability of trackage to the Interven-
er, Gateway Packers 1968 Ltd. at The Midland Railway
Company of Manitoba's new location.
5. The Commission failed to receive evidence upon
which a decision could be reached, especially since there
were conflicting allegations of fact set out in the pleadings
filed.
6. The Commission deprived the Intervener, Gateway
Packers 1968 Ltd. an opportunity to adduce evidence in
support of the allegations contained in its pleadings and to
rebut the presumed allegations that The Midland Railway
Company of Manitoba's trackage at its new location would
be available to the Intervener, Gateway Packers 1968 Ltd.
The Notice of Appeal does not state the
grounds of the appeal,' but it would appear
from the applicant's Memorandum of Points of
Argument that the section 28 motion fairly out
lines the grounds upon which both the appeal
and the section 28 motion are based.
In effect, according to the section 28 notice
of motion, the applicant seeks relief on the
following grounds:
(a) it is alleged that the Commission erred in
law in sanctioning a "deviation" of trackage
under s. 181 of the Railway Act, which was
not "required" by the railway company';
(b) it is alleged that the Commission erred in
law in concluding that what the applicant
sought was a "deviation" within s. 181 of the
Railway Act and not an "abandonment" of a
"line of railway" within s. 168 of the Act;
and
(c) that the applicant, being a person who was
entitled to a hearing by the Commission
before the order was made, was not given
such a hearing in that
(i) the Commission failed to grant the appli
cant a public hearing,
(ii) the Commission failed to permit the
applicant to consider and answer certain
specified submissions,
(iii) the Commission failed to receive evi
dence upon which a decision could be
reached, especially since there were con
flicting allegations of fact, and
(iv) the Commission deprived the applicant
of an opportunity to adduce evidence in
support of allegations contained in its
pleadings and to rebut the "presumed alle
gations" that the railway company's track-
age at its new location would be available
to the applicant.
The Midland Railway Company was incor
porated by chapter 59 of the Statutes of
Manitoba of 1903, which statute authorized it
to "locate, ... construct, ... and operate, alter
and keep in repair" inter alia "a rail
way ... commencing at the City of Winnipeg
and running ... to a point on the international
boundary at or near the Town of Emerson".
(By Act of the Manitoba Legislature passed on
July 27, 1971, Midland's name was changed to
Burlington Northern (Manitoba) Limited.) By s.
2 of chapter 87, Statutes of Canada 1927, it was
enacted that: "The works which the Company,
by its said act of incorporation, is empowered
to undertake and operate, and the undertaking
of the Company, are hereby declared to be
works for the general advantage of Canada."
By virtue of s. 92(10)(c) and s. 91(29) of the
British North America Act, 1867, this had the
effect of bringing such "works" within the
legislative jurisdiction of the Parliament of
Canada.
Before coming to the actual questions to be
decided, it may be helpful to review in a general
way some of the statutory law that has to be
considered.
Following the pattern set by Railway Compa
nies Clauses legislation in England, the Railway
Act of Canada provides a Code to regulate the
construction and operation of railways that are
within the legislative jurisdiction of Parliament.
In effect, once legislative authority has been
granted to construct and operate a particular
line of railway, the authorizing Act must, if the
line of railway is within the legislative jurisdic
tion of Parliament, be read with the Railway
Act. The Railway Act has been made expressly
applicable to a railway that has been declared to
be a work for the general advantage of Canada.
See s. 7 thereof.
When considering the relevant regulatory
provisions of the Railway Act, it is necessary to
have in mind the provisions of the National
Transportation Act governing the Canadian
Transport Commission. As the order under
attack was made prior to July 15, 1971, when
the Revised Statutes of 1970 came into force, I
propose, in these reasons, to refer to the provi
sions of that Act and of the Railway Act as they
were before that time.
The Canadian Transport Commission was
constituted by the National Transportation Act,
chapter 69 of the Statutes of 1966-67. See s. 6
which reads, in part:
6. (1) There shall be a commission, to be known as the
Canadian Transport Commission, consisting of not more
than seventeen members appointed by the Governor in
Council.
(2) The Commission is a court of record and shall have
an official seal which shall be judicially noticed.
By s. 94 of the National Transportation Act
read with the Schedule to that Act, the Railway
Act is amended so as to substitute the new
Commission for the Board of Transport Com
missioners wherever the latter Commissioners
were referred to in that Act. Some of the provi
sions of the Railway Act that were not repealed
by the National Transportation Act and that
•
regulate the proceedings of the new Commis
sion are:
19. (1) The Commissioners shall sit at such times and
conduct their proceedings in such manner as may seem to
them most convenient for the speedy despatch of business.
(2) They may, subject to the provisions of this Act, sit
either together or separately, and either in private or in open
court; but any complaint made to them shall, on the applica
tion of any party to the complaint, be heard and determined
in open court.
20. Subject to the provisions of this Act, the Board may
make rules and provisions respecting
(a) the sittings of the Board;
(b) the manner of dealing with matters and business
before the Board;
(c) the apportionment of the work of the Board among its
members, and the assignment of members to sit at hear
ings, and to preside thereat; and
(d) generally, the carrying on of the work off the Board,
the management of its internal affairs, and the duties of
its officers and employees;
and in the absence of other rule or provision as to any such
matter, such matter shall be in the charge and control of the
Chief Commissioner or such other member or members of
the Board as The Board directs.
* * *
45. (3) The finding or determination of the Board upon
any question of fact within its jurisdiction is binding and
conclusive.
* * *
49. No order of the Board need show upon its face that
any proceeding or notice was had or given, or any circum
stance necessary to give it jurisdiction to make such order.
I turn now to the part of the Railway Act in
which are found secs. 168 and 181. It will be
remembered that s. 181 is the provision upon
which the Commission bases the order under
attack, and secs. 168 and 181 are the provisions
that the applicant says have been wrongly
applied.
The scheme of the legislation is that a railway
company's authority to construct a line of rail
way is to be found in a statute passed to author
ize the particular railway. However, by virtue
of s. 169 of the Railway Act, a company cannot
commence construction of a railway or any part
of it until, among other things,
(a) the "general location" has been approved
by the Commission as contemplated by s.
170, which reads in part as follows:
170. (1) The company shall prepare, and submit to the
Board, in duplicate, a map showing the general location of
the proposed line of the railway, the termini and the princi
pal towns and places through which the railway is to pass,
giving the names thereof, the railways, navigable streams
and tidewaters, if any, to be crossed by the railway, and
such as may be within a radius of thirty miles of the
proposed railway, and, generally, the physical features of
the country through which the railway is to be constructed,
and shall give such further or other information as the
Board may require.
* * *
(3) The Board may approve such map and location, or
any portion thereof, or may make or require such changes
and alterations therein as it deems expedient.
and
(b) the necessary "plan, profile and book of
reference" have been "sanctioned" by the
Commission as contemplated by secs. 171 to
173, which read, in part:
171. (1) Upon compliance with the provisions of section
170, the company shall make a plan, profile and book of
reference of the railway.
(2) The plan shall show
(a) the right of way, with lengths of sections in miles;
(b) the names of terminal points;
(c) the station grounds;
(ci) the property lines and owners' names;
(e) the areas and length and width of lands proposed to be
taken, in figures, stating every change of width; or other
accurate description thereof;
W the bearings; and
(g) all open drains, watercourses, highways and railways
proposed to be crossed or affected.
(3) The profile shall show the grades, curves, highway
and railway crossings, open drains and watercourses.
(4) The book of reference shall describe the portion of
land proposed to be taken in each lot to be traversed, giving
numbers of the lots, and the area, length and width of the
portion of each lot proposed to be taken, and names of
owners and occupiers so far as they can be ascertained.
* * *
173. (1) Such plan, profile and book of reference shall be
submitted to the Board, which, if satisfied therewith, may
sanction the same.
I now come to s. 181. Once a railway has
been located and "sanctioned", there may be a
"deviation, change or alteration" in the railway
or any portion thereof, "as already constructed,
or as merely located and sanctioned". This is
provided for by s. 181, which reads in part:
181. (1) If any deviation, change or alteration is required
by the company to be made in the railway, or any portion
thereof, as already constructed, or as merely located and
sanctioned, a plan, profile and book of reference of the
portion of such railway proposed to be changed, showing
the deviation, change or alteration proposed to be made,
shall, in like manner as hereinbefore provided with respect
to the original plan, profile and book of reference, be
submitted for the approval of the Board, and may be
sanctioned by the Board.
* * *
(3) The company may thereupon make such deviation,
change, or alteration, and all the provisions of this Act
apply to the portion of such line of railway, at any time so
changed or proposed to be changed, in the same manner as
they apply to the original line.
* * *
(5) Nothing in this section shall be taken to authorize any
extension of the railway beyond the termini mentioned in
the Special Act.
There is, moreover, a prohibition against any
such change, alteration or deviation until s. 181
has been complied with. See s. 182.
In addition to a "deviation, change or altera
tion" in the "railway" (as authorized by the
special Act), there is authority in the Railway
Act for a railway company, "for the purposes
of its undertaking", to "construct, maintain and
operate branch lines, not exceeding in any one
case six miles in length, from the main line of
the railway, or ... from any branch thereof".
See secs. 183, 184 and 185. There are also
provisions for industrial spurs (secs. 188 to
190) and stations (s. 191).
Once it has been located, statutory authority
to acquire land for the railway, by expropriation
or otherwise, is to be found in the provisions
following s. 192.
Finally, there are the provisions concerning
abandonment. The general provision, which was
first enacted by chapter 47 of 1932-33, reads as
follows:
168. The company may abandon the operation of any line
of railway with the approval of the Board, and no company
shall abandon the operation of any line of railway without
such approval.
By subsec. (2) of s. 314x of the Railway Act,
as amended by the National Transportation Act
in 1967, "no approval for the abandonment of
the operations of any line of railway shall be
given under section 168 except in accordance
with such regulations as the Governor in Coun
cil may make in that regard". Such regulations
were made by Order in Council P.C. 1968-1874
dated October 1, 1968. Such regulations contain
inter alia a provision reading as follows:
6. Where an application has been received by the Com
mission, the Commission shall hold such hearings with
respect to the application as, in its opinion, are necessary to
enable all interested persons to present their views on the
application.
In 1967, the National Transportation Act
added sections 314A et seq. to the Railway Act
under the heading "Abandonment and Rational
ization of Lines or Operations". For the pur
pose of these provisions, "branch line" is
defined to mean a "line of railway ... that, rela
tive to a main line ... , is a subsidiary, second
ary or feeder line of railway ..." In these sec
tions, very detailed provision is made for
abandonment of branch lines as so defined.
I turn now to the attacks that are made on the
order of the Commission in this proceeding.
The first attack made by Gateway on Order
No. R-12160 is rephrased in its Memorandum
of Points of Argument to read as follows:
In its interpretation of Section 119 (formerly 181) of the
Railway Act. It (that is the Commission) erred in law in
failing to dismiss the Application on the ground that the
Application was being made at the request of the City of
Winnipeg, and the Application was not required by the
Midland Railway for the purpose of its business.
When counsel for the applicant had completed
his submissions on this point, the Court indicat
ed that it was of the opinion that there was
nothing in it and would not call on the respond
ents with regard thereto.
In my view, the only arguable basis for the
point is that set out in paragraph 12 of the
Intervention, where it is said that "The Inter-
vener further states that no deviation, change or
alteration is required by the Company with
respect to the said track and facilities for the
purposes of its business but rather the Appli
cant is seeking abandonment of its track in
order to sell its land and facilities for a prof
it ..." It is a tenable view of s. 181 that, where
it says "If any deviation ... is required by the
Company to be made in the railway ... ," s.
181 has in mind a requirement for a "deviation"
arising exclusively out of the exigencies of the
railway business. That, however, in my opinion
calls for the reading into the section of a restric
tion which is not expressed and which is incon
sistent with the scheme of the legislation. When
the railway as originally authorized is first being
located under s. 170, there is no doubt in my
mind that the company and the Commission are
both bound to take into consideration how best
it may be located so as to integrate it into the
community of which it is to become a part so as
best to advance the interests of the community
as a whole. When, therefore, at a later stage, the
railway company finds that a re-location of the
railway is necessary in order to facilitate the
healthy development of the community, in my
opinion it becomes a "requirement" of the rail
way company to bring about such re-location
and this is so even though the company had to
be shown the light by government agencies
whose primary duty is to advance the develop
ment of the community. I do not wish to be
taken as defining the only classes of case in
which the railway company may have a require
ment for deviation or change in the location of
the railway. I do not, for present purposes, have
to express any opinion as to whether there
might be circumstances in which a company
might be motivated to apply under s. 181 in a
situation which would not fall within the words
of the section.
In this case, the application is made so that
the area to be vacated by the railway may be
sold to the City of Winnipeg "for the purpose of
an urban renewal project". Where a railway
company cannot continue to operate its railway
without blocking such a project unless it alters
the location of a part of its line in the City,
there is no doubt in my mind that the company
has a requirement to make such an alteration
within the meaning of s. 181.
I turn now to the second ground upon which
Gateway seeks relief in this proceeding. As
already indicated, this is that "the Commission
erred in law in concluding that what the appli
cant sought was a `deviation' within s. 181 of
the Railway Act and not an `abandonment' of a
line of railway within s. 168 of the Act".
The order of the Commission recites that the
Committee was satisfied that
the application is in fact one for the relocation of the
Midland Railway by deviation of the trackage, as shown on
Plan No. 1, to a location as shown on Plan No. 2, referred
to in the heading of this Order and does not constitute an
abandonment of a branch line in that trackage to serve the
industries above referred to will be available to them at its
new location;
and the substantive part of the order is an order
that falls within the four corners of s. 181. In
my view, what was thereby approved was a
"deviation, change or alteration ... in the rail
way" and it is therefore a valid order under s.
181. It may be that what is proposed, in the
circumstances of this particular case, also
involves an abandonment of "the operation of"
a "line of railway" that will call for an addition
al approval under s. 168. Upon this there is no
necessity to express any view in this case. It is
sufficient to say that no such approval was
sought, no such approval was granted by the
terms employed by the order and neither Mid
land nor any other party has suggested that the
order has the effect of granting any such
approval. If there is inherent in Gateway's sub
missions on this question a contention that s.
168 and s. 181 deal with mutually exclusive
situations, I can only say that I cannot accept
that view. I can easily conceive of a situation
where both s. 168 and s. 181 would apply. I
only have to refer to the hypothetical case that I
suggested during argument, of a company with
statutory authority to operate a railway from
Winnipeg to Vancouver which, having con
structed and operated such a railway through
Regina and Calgary for fifty years, applies
under s. 181 to change the railway so that it
would run instead through Saskatoon and
Edmonton. Such a change in the railway would
be within the limits of the statutory authority
and approval therefor could be granted under s.
181, but it would, I suggest, also involve the
abandonment of the "operation" of the line of
railway through Regina and Calgary and would
require an approval of such abandonment under
s. 168.
I turn now to the applicant's objection based
upon the contention that it has not been afford
ed the opportunity to put its case before the
Commission in the manner that is required by
the principles of natural justice.
The contention is based upon the fact that the
Commission had before it, when it made its
decision, communications from the City of Win-
nipeg, Midland, and its own officials that were
not brought to the attention of the applicant so
that it could comment on them or otherwise
make an answer to them and upon the fact that
there was no hearing of the application at which
Midland was required to lead evidence to sup
port the application and at which the applicant
was given full opportunity to lead evidence and
otherwise to seek to defeat the application.
Leaving aside an earlier decision under the
Railway Act, to which I shall refer later, I do
not find that any of the decisions on the princi
ples of natural justice to which we have been
referred precisely, or even roughly, indicate the
solution to the problem raised by this aspect of
this case. What creates my difficulty here is,
first, the fact that the applicant was neither a
person who was seeking an order in his favour
nor a person against whom an order was being
sought, but was rather an "intervenant" who
was not, in any strict sense, either seeking an
order or in jeopardy of having an order made
against him, and, second, the fact that what the
Commission was being asked to do was to give
its approval of a change by Midland in the
location of a railway within the limits of the
statutory authority that had been granted to it
for that railway and, while there can be consid
erable difference of opinion as to what is and
what is not an authority of an administrative
character, I should have little doubt that an
authority to exercise a supervisory and restrain
ing power over the manner in which a railway
company exercises its statutory powers is of an
administrative character. On the other hand, in
Canada at least, a proposal to make a change in
a railway or other transportation facility in such
a way as to deprive a business man of transpor
tation services on which he has become depend
ent is, from a practical point of view, just as
immediate and grave a threat to his interests as
is a proposal that would operate to impose a
legal obligation on him to which he was not
otherwise subject. In the absence of some spe
cial statutory direction, however, it has been
. held that persons affected in a similar way have
no right to be heard. See, for example, Franklin
v. Minister of Town and Country Planning
[1948] A.C.87, and B. Johnson & Co. (Builders)
Ltd. v. Minister of Health [1947] 2 All E.R. 395
(C.A.). There is, however, the decision that is
urged on us by Gateway as being to the con
trary effect, of the Supreme Court of Canada in
Wiswell et al. v. Metropolitan Corporation of
Greater Winnipeg [1965] S.C.R. 512.
Speaking for myself, I would be reluctant to
conclude, even though there were no special
provision therefor, that a person threatened
with the loss of transportation services had no
right to be heard on the question whether such
services should be terminated. I am, however,
relieved of the necessity of coming to a conclu
sion on that question here because, as I see it,
the matter is specially dealt with. The Commis-
sion has been given authority to make rules
respecting "the manner of dealing with matters
and business" before it (s. 20 of the Railway
Act) and it has made rules — the Canadian
Transport Commission General Rules — which
provide for an intervention by a "person inter
ested in an application to which he is not a
party" and, in my opinion, Gateway's rights in
connection with this application are no less and
no greater than the rights acquired by it under
those Rules as read with the Railway Act and
the National Transportation Act.
In the first place, having been served with a
copy of Midland's application in this matter,
Gateway filed an intervention under Rule 360
of those Rules, which reads as follows:
360 Any person interested in an application to which he
is not a party may intervene in order to support, oppose or
modify the application.
No proceedings having been taken before the
Commission to challenge Midland's status to
file such intervention or to challenge its right to
include in it everything that it did put in it, I am
of the view that it must now be accepted that
Gateway had a status to intervene and that it
had the right to put before the Commission
everything that is in its document of interven
tion. Any such challenge should be made at an
appropriate time. Compare the decision of the
Privy Council in M.N.R. v. Wrights' Canadian
Ropes Ltd. [1947] A.C. 109, per Lord Greene
M.R. at page 121.
At this point I think I should make a quick
review of the Canadian Transport Commis
sion's General Rules in so far as they are
relevant.
An intervenant is not one of the regular par
ties to an application under these Rules. The
first regular party is the applicant, who pro
ceeds under Rules 305 and 310, which read:
305 An application shall be in the form prescribed by the
Commission and, if no form is prescribed, shall
(a) contain a clear and concise statement of the facts, the
grounds of application, the name and section of the
statute under which it is made, the nature of the order or
decision applied for and its purpose;
(b) give all information required by the practice of the
appropriate committee;
(c) be divided into paragraphs, numbered consecutively,
each of which shall be confined as nearly as possible to a
distinct portion of the subject;
(d) be endorsed with the name and address of the appli
cant or of a solicitor acting for him in the matter, and, if it
is an application directed against another party, be
endorsed with notice as to service of answer as set forth
in the form of endorsement given in Schedule No. 1.
* * *
310 The applicant shall mail or deliver to the Secretary
the application and any document required to be submitted
to the Commission or which may be useful in explaining or
supporting the application.
The second regular party is the respondent who
is covered by Rules 325 and 340, which read:
325 Where the application is not for a licence or certifi
cate or an amendment thereto or cancellation thereof, or for
an Order contemplated in rule 315 and is directed against
one or more persons in adverse interest, herein designated
respondents, the applicant shall have a copy of the applica
tion served upon each such person.
* * *
340 A respondent who intends to oppose an application
shall mail or deliver a written statement containing his
answer to the application, together with any documents that
may be useful in explaining or supporting the answer, to the
Secretary, and serve a copy of the answer and documents
upon the applicant or his solicitor.
Note that Rule 360 concerning intervenants,
which I have already quoted, says that it is a
person interested in an application "to which he
is not a party" who may intervene. The interve-
nant's original step is governed by Rule 365,
which reads:
365 An intervener shall mail or deliver to the Secretary a
written statement describing his interest and containing his
approval of the application, his opposition thereto or his
suggested modification thereof, together with any docu
ments that may be useful in explaining or supporting the
intervention, and he shall also serve a copy of the interven
tion and documents upon the applicant and upon the
respondent, if any, or upon their respective solicitor and
such other persons as the Commission may direct.
By Rule 380, provision is made for the appli
cant to deliver a "reply" to a respondent's
answer or to an intervention.
It is to be noted that, while the applicant and
the respondent are each required to serve their
initial documents on the other and an interve-
nant is required to serve his initial documents
on both the applicant and the respondent, there
is no provision in the Rules for an intervenant
to serve his initial documents on any other
intervenant. Obviously, an intervenant can not
serve his initial documents on other interve-
nants before they have become intervenants
and, when the various possibilities are consid
ered, including the not improbable case where
there will be a large number of intervenants
whose sole purpose is to indicate the support or
opposition of interested persons to the applica
tion, it is not surprising that the Rules do not
impose any such requirement.
It is to be noted further that the Rules con
template that the applicant, the respondent and
the intervenant will each file with its initial
document any documents that may be useful in
explaining or supporting its position. So, at the
end of the stage during which each party files
its initial documents, the Commission has
before it the factual allegations and contentions
of the parties and their supporting documents.
At that stage any of the parties, including the
intervenant, can, under the Rules, if it feels that
something further requires to be done satisfac
torily to put its case before the Commission,
(a) obtain production and inspection of docu
ments from any other party (see Rule 550), or
(b) apply to the Commission for a hearing
under Rule 475.
Similarly, at that stage, the Commission has
various alternatives. See Rules 420 and 430,
which read:
420 The Commission may at any time require the whole
or any part of an application, answer, intervention or reply
to be verified by declaration under oath, by giving a notice
to that effect to the party from whom such declaration is
required.
If the notice is not complied with, the Commission may set
aside the application, answer, intervention or reply or strike
out any part not verified according to the notice.
* * *
430 The Commission may require further information,
particulars or documents from any party, and may stay all
formal proceedings until satisfied in that respect.
In addition, of course, the Commission may, at
that stage, order a hearing. I think it also goes
without saying that an intervenant, who under
the Rules is not entitled to be served with other
persons' interventions, will, if he is really inter
ested in pursuing his case, apply to the Commis
sion for copies of all documents that have been
filed other than those that he has received.
There can be no doubt that, the Commission
being a court of record, he would be supplied
with such copies if he applied for them.
I come back now to Gateway's complaint that
it has not been afforded the hearing required by
the principles of natural justice.
In the first place, I am of opinion that Gate
way is not entitled to anything that is not
assured to it expressly or impliedly by the Com
mission's Rules. It is to be remembered that this
is an administrative court of record with a very
large volume of business and with a set of rules
that have been carefully devised. Courts oper
ate on the basis that the rules afford a complete
opportunity to every party to obtain justice, but
such rules leave it to the parties to look after
their own interests. If a party wants to know
what has gone on on the Court file, it can
search the file. If it wants documents, it can
take the necessary steps. If it wants a hearing, it
can apply for a hearing. This is the position of a
party under the Commission's Rules. Each
party puts in its initial documents with support
ing documents. If it is content with that, it can
rest on its oars. If it thinks that there is some
thing else to be watched for or to be added, it
can take the appropriate steps under the Rules.
In this case, Gateway, represented by compe
tent solicitors, was apparently content with its
initial step. It failed to avail itself of the other
steps that it could have taken and it cannot now
complain of having been deprived of a fair
hearing.
In particular, I have in mind that Gateway did
not seek information from the Commission con
cerning other intervenants, although a perusal
of the part of the Rules under which its inter-
vention was filed must have made it clear to it
that an intervenant did not automatically
receive the initial documents filed by other
intervenants, and it did not ask for a hearing.
Having said that, I should like to suggest for the
consideration of the Commission and of mem
bers of the Bar practising before the
Commission
(a) that, where there is an intervenant, solici
tors for other parties should as a matter of
professional courtesy send to the intervenant
or his solicitor copies of any document being
filed with the Commission and of any com
munication addressed to the Commission
whether or not there is any provision in the
Rules requiring that to be done, and
(b) that a copy of any communication
addressed by the Commission to one of the
parties should be sent to the intervenant or
his solicitor, as well as to each other party.
I may say that, since the Registry of this Court
has started doing a substantial part of its busi
ness with litigants by correspondence, or by
telephone confirmed by correspondence, it has
become a rule of practice in our Registry that
when there is a communication received from
or sent to a party or its solicitor, the Registry
has a responsibility to see that each other party
has a copy of that communication sent to it.
While I am speaking in this vein, it might not
be out of the way for me to make the suggestion
to the Commission that, when it has contested
matters before it, it treat communications from
the litigant itself (behind the solicitor's back) or
from third parties as any ordinary court of law
would treat such communications. It is, of
course, important not only that the Commission
be impartial but that it avoid any impression of
having dealt with one party to a contested
matter without the other parties being kept in
the picture.
In my opinion, there is a second ground on
which the applicant fails on this branch of the
case. Where an interested party is permitted to
intervene to oppose an application before the
Commission, it is only entitled, in my view, to a
hearing on the grounds of opposition put for-
ward by its intervention document. As I read
Gateway's intervention in this case, it consists
of statements of facts designed to show (a) its
interest in the matter, and (b) an opposition to
the granting of the application based on two
separate contentions concerning the effect of
secs. 168 and 181 of the Railway Act. No
challenge was made to Gateway's interest. No
issue of fact was raised concerning anything
relating to the two contentions as to the effect
of the statute and no factual material was put
before the Commission in any way bearing on
those contentions by anyone other than
Gateway.
In so far as Gateway's intervention is con
cerned, I have no doubt that, in the course of its
consideration of the matter, the Committee of
the Commission before whom the matter came
reviewed the proceedings before it with a view
to ascertaining whether there were any ques
tions of fact relevant to the determination of the
application which had to be resolved by one of
the methods available to it under the Rules
before the application could properly be dis
posed of, and came to the conclusion, which
seems to me to have been open to it on the
proceedings, that there was no dispute between
the parties as to any fact that was relevant to
the questions it had to decide. In this connec
tion I have in mind the decision of the Supreme
Court of Canada in Bell Telephone Co. of
Canada v. C.N.R. [1932] S.C.R. 222, where
Rinfret J. (as he then was), speaking for Duff J.
(as he then was) and Lamont J., as well as for
himself, said at page 241:
We feel confident that the Board must have given proper
consideration to the written submissions so made and have
taken them into account in drafting the orders subsequently
issued. In an earlier part of this judgment, attention was
drawn to the fact that in these matters—as well as in any
number of similar matters constantly coming before it—the
Board is "dealing with what are obviously administrative
provisions" of the Railway Act. Circumstances imperatively
required that these matters may be disposed of with expedi
tion and simplicity of procedure. For that reason, no doubt,
the Railway Act provided that
the commissioners shall sit at such times and conduct
their proceedings in such manner as may seem to them
most convenient for the speedy despatch of business.
(Section 19).
They may sit either in private or in open court.
This is not to say that there would be no
recourse if there were a case where the Com
mission refused to enter upon an inquiry con
cerning facts that had to be determined in order
to reach a decision on the question that had to
be decided under the statute. In such a case, in
my view, consideration would have to be given
to the application of the principle that received
application in Toronto Newspaper Guild, Local
87, American Newspaper Guild v. Globe Print
ing Co. [1953] 2 S.C.R. 18.
To sum up my conclusions, they are that
Gateway has failed in its contentions that the
Commission erred in the interpretation of the
Railway Act in reaching its decision to make the
order attacked and has failed to show that there
was any failure by the Commission to give it a
fair hearing on any question bearing on its
opposition to Midland's application having
regard to the Commission's Rules or, indeed,
under the general principles that have been
established with reference to natural justice.
I am, therefore, of the view that both the
application under s. 28 of the Federal Court Act
and the appeal should be dismissed.
DUMOULIN J. (orally)—I am in complete
accord with the all-encompassing notes read by
the learned Chief Justice and also with the
summarized ones to be delivered by my brother
Thurlow.
The three main points at issue have been
adequately dealt with, namely: the nature and
source of the applicant's right to an interven
tion; and in holding affirmatively the applicabil
ity of s. 181 (now 119) of the Railway Act, and,
thirdly, that Gateway, as intervenant, was not
deprived of any recourse afforded it by the
relevant provisions of the pertinent statute and
the rules made thereunder.
THURLOW J.—I agree that the appeal and the
motion to review fail for the reasons which
have been given by the Chief Justice and I have
nothing to add to what he has said on the two
points raised by the applicant, Gateway Packers
1968 Ltd. as to the applicability of s. 181 (now
s. 119) and s. 168 (now s. 106) of the Railway
Act.
With respect to the main point argued—the
alleged denial of natural justice—in my view the
case of Wiswell v. Metropolitan Corporation of
Greater Winnipeg [1965] S.C.R. 512, on which
the applicant relied, is useful only for the pur
pose of resolving the initial problem whether
the authority of the Canadian Transport Com
mission under s. 181—whether characterized as
quasi-judicial, administrative or legislative in
nature—is exercisable without notice to a
person in the position of the applicant and with
out affording such a person an opportunity to
present its case. There, however, as I see it, the
resemblance of the Wiswell case to the present
case, and its usefulness for present purposes,
end since in the present case, unlike the situa
tion in the Wiswell case, the applicant had
notice of the proceeding and filed an interven
tion setting out its position.
Nor is this one of the long line of cases in
which the party complaining has been refused
access to some part of the material before the
person having authority to decide a matter or in
which the procedure by which the decision is
reached is not governed by a set of rules. Here
the applicant's solicitor could have seen the
material in the Commission's file for the asking
but did not ask, though a brief reflection on the
matter ought to have been sufficient to cause
him to realize that the file might contain materi
al filed by other persons interested in such a
matter which the rules did not require to be
served on him.
Moreover, though the rules—which were fol
lowed in filing the applicant's intervention—
gave the applicant the right to ask for an oral
hearing the applicant did not request such a
hearing but simply asked leave to appear at any
hearing that might be directed. I would infer
from this that the applicant's solicitor recog
nized that the matter might be dealt with with
out an oral hearing, as indeed it was. Even after
the order was made and the applicant became
aware of it no move appears to have been made
on its part to invoke, in accordance with the
rules pertaining thereto, the comprehensive
statutory power of the Commission to review,
rescind, change, alter or vary any order or deci
sion made by it. In these circumstances I do not
think the applicant's complaint of a denial of
natural justice is sustainable.
I would dismiss the appeal and the motion to
review.
Leave to appeal under s. 53(2) of the Railway Act,
R.S.C. 1952, c. 234, as amended by the Federal Court Act,
was granted on August 16, 1971, and that appeal, when
launched, was joined with the application under s. 28, which
was filed on July 27, 1971, by an order made on August 16,
1971, under Rule 1314. Having regard to s. 29 of the
Federal Court Act, it would seem that the Court may grant,
in this proceeding, any relief that might be granted by virtue
of s. 53 of the Railway Act read with s. 52(c) of the Federal
Court Act, or under s. 28 of the Federal Court Act read with
s. 52(d) of that Act.
2 In this case the leave to appeal was not limited to
specified questions, inasmuch as there is no basis in s. 28
for limiting an application thereunder and it was apparent
that there was going to be a joint proceeding.
3 The point here being that the occasion for "deviation"
of the railway was the "urban renewal" requirements of the
City of Winnipeg and had nothing to do with the business
requirements of the railway.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.