A-547-75
Seafarers International Union of Canada
(Appellant)
v.
Canadian National Railway Company (Respond-
ent)
and
Canadian Pacific Limited (Appellant)
v.
Canadian National Railway Company (Respond-
ent)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, January 20 and 23, 1976.
Judicial review and appeal CTC deciding not to disallow
proposed acquisition by respondent—Whether Commission
erred in law in not disallowing the acquisition because CN
lacked authority and in failing to consider other submis-
sions—Whether Commission misinterpreted s. 27(4)(b) of Na
tional Transportation Act—Whether Commission failed to
observe principle of natural justice, basing its decision on
information not disclosed to objectors—National Transporta
tion Act, R.S.C. 1970, c. N-17, ss. 22, 27.
These appeals and section 28 application are against a
decision of the Canadian Transport Commission not to disallow
a proposed acquisition of interest in two transportation compa
nies by respondent. Appellant S.I.U. submits that the Commis
sion erred in law (1) because CN did not have the authority to
enter into such transaction, and (2), in failing to consider other
submissions it had made which could have led to the conclusion
that the acquisition would be prejudicial to the public interest.
Appellant CP submits that (3) the Commission erred in its
interpretation of section 27(4)(b), acting on the assumption
that it was to assess the effect of the acquisition on the
objectors, not on the public interest and (4) the Commission
failed to observe a principle of natural justice, basing its
decision on information not disclosed to the objectors, depriving
them of opportunity to make representations or adduce
evidence.
Held, the appeals and section 28 application are dismissed.
(1) Under section 27(4), the Commission must form an opinion
on the consequences of the proposed acquisition, not on the
conditions precedent to its legal validity. (2) The Commission,
in rejecting the submissions, properly exercised its section 27(4)
powers. (3) The Commission took a proper view of its powers
under section 27(4). (4) If the Commission decides to hold a
hearing under section 27(4), it is nothing more than part of its
investigation. It does not transform the investigation into an
adversary contest. The decision of the Commission to hold a
public hearing could not create rights in the objectors that they
would not otherwise have. Appellant's contention that the right
to object under section 27(3) implies the right to be permitted
to contradict any information bearing on the objection obtained
by the Commission during its investigation, is based on the
false premise that the making of an objection creates a lis or
quasi -lis to which the objector is a party, and which cannot be
resolved without the objector having been given opportunity to
be heard. Under section 27, an objector can only object; the
section does not give him the right to participate in a trial.
Per Le Dain J.: There is no general duty to disclose all
material which is to form part of the basis of the decision,
including information of which a tribunal may take official
notice. The right to object conferred by section 27(3) on
persons affected by a proposed acquisition implies that the
investigation will be such as to afford a full and effective
opportunity to such person to object. Apart from the interest of
persons affected, there is a general public interest in providing
an effective opportunity to object since that is the Commis
sion's chief means of assuring itself of the necessary basis for its
determination. What a full and effective opportunity to object
will require will depend on the nature of the objection and
issues it raises. It is not true that the Commission can disallow
only if it decides that objections are valid. Once activated by an
objection, the Commission is not confined to determining
whether the objector has made a case. The issue is not to be
determined as between the party proposing the acquisition and
the objector; an objector is entitled to full opportunity to object,
but not to meet every consideration that may form the basis of
the decision.
Per Hyde D.J.: The investigation did not create a lis where
objectors were entitled to have Commission records laid out for
their examination. While there may be stages in the hearing
where proceedings approach a lis between certain participants,
in which the audi alteram partem rule might apply, it cannot
be invoked here.
Board of Education v. Rice [1911] A.C. 179 and Canadi-
an National Railways Company v. Bell Telephone Com
pany of Canada [1939] S.C.R. 308, applied. Magnasonic
Canada Limited v. Anti-dumping Tribunal [1972] F.C.
1239, distinguished. Knapman v. Board of Health (1957)
6 D.L.R. (2d) 81 and [1955] 3 D.L.R. 248 affirming
[1954] 3 D.L.R. 760 and [1954] O.R. 360; R. v. Ontario
Racing Commission [1971] 1 O.R. 400; Blois v. Andras
[1973] F.C. 182; Lazarov v. Secretary of State [1973]
F.C. 927; Local Government Board v. Arlidge [1915] A.C.
120; Errington v. Minister of Health [1935] 1 K.B. 249
and Volkswagen Northern Ltd. v. Board of Industrial
Relations (1964) 49 W.W.R. 574, discussed. B. Johnson
and Co. (Builders) Ltd. v. Minister of Health [1947] 2 All
E.R. 395, agreed with.
APPEAL and judicial review.
COUNSEL:
J. Nuss for Seafarers International Union of
Canada.
M. S. Bistrisky for Canadian Pacific Limited.
H. J. G. Pye, Q.C., and G. M. Cooper for
Canadian National Railways.
G. W. Ainslie, Q.C., and W. G. St. John for
Canadian Transport Commission.
SOLICITORS:
Ahern, De Brabant, Nuss & Drymer, Mon-
treal, for Seafarers International Union of
Canada.
Canadian Pacific Law Department, Montreal,
for Canadian Pacific Limited.
Legal Department, Canadian National Rail
ways, Montreal, for Canadian National
Railways.
Deputy Attorney General of Canada for
Canadian Transport Commission.
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: These are appeals by Seafarers
International Union of Canada and Canadian
Pacific Limited from the decision of the Canadian
Transport Commission not to disallow the acquisi
tion by the respondent of an interest in two trans
portation companies. The same decision was also
attacked by Seafarers International Union of
Canada under section 28 of the Federal Court Act.
The two appeals and the section 28 application
have been joined pursuant to an order of the Court
made on November 25th, 1975.
The decision under attack was made under sec
tion 27 of the National Transportation Act, which
reads as follows:
27. (1) A railway company, commodity pipeline company,
company engaged in water transportation, or person operating
a motor vehicle undertaking or an air carrier, to which the
legislative jurisdiction of the Parliament of Canada extends,
that proposes to acquire, directly or indirectly, an interest, by
purchase, lease, merger, consolidation or otherwise, in the
business or undertaking of any person whose principal business
is transportation, whether or not such business or undertaking
is subject to the jurisdiction of Parliament, shall give notice of
the proposed acquisition to the Commission.
(2) The Commission shall give or cause to be given such
public or other notice of any proposed acquisition referred to in
subsection (1) as to it appears to be reasonable in the circum
stances, including notice to the Director of Investigation and
Research under the Combines Investigation Act.
(3) Any person affected by a proposed acquisition referred
to in subsection (1) or any association or other body represent
ing carriers or transportation undertakings affected by such
acquisition may, within such time as may be prescribed by the
Commission, object to the Commission against such acquisition
on the grounds that it will unduly restrict competition or
otherwise be prejudicial to the public interest.
(4) Where objection is made pursuant to subsection (3), the
Commission
(a) shall make such investigation, including the holding of
public hearings, as in its opinion is necessary or desirable in
the public interest;
(b) may disallow any such acquisition if in the opinion of the
Commission such acquisition will unduly restrict competition
or otherwise be prejudicial to the public interest;
and any such acquisition, to which objection is made within the
time limited therefor by the Commission that is disallowed by
the Commission, is void.
(5) Nothing in this section shall be construed to authorize
any acquisition of an interest in any other company that is
prohibited by any Act of the Parliament of Canada. 1966-67, c.
69, s. 20.
On July 31st, 1975, the Canadian National
Railway Company gave notice to the Canadian
Transport Commission of its intention to acquire
part of the capital stock of two foreign transport
companies. The Commission thereafter gave the
notice required by section 27(2) and the two appel
lants, together with other persons claiming to be
affected by the proposed acquisition, objected to
the Commission against it. Acting through its
Water Transport Committee, the Commission
then conducted an investigation and, as part of
that investigation, held a public hearing at which
the two appellants and the other objectors were
heard. At the conclusion of its investigation, the
Commission decided not to disallow the proposed
acquisition. It is against that decision that these
proceedings are directed.
Counsel for Seafarers International Union of
Canada submitted two arguments. He said that
the Commission had erred in law in not disallow
ing the proposed acquisition on the ground that the
Canadian National Railway Company did not
have the statutory authority to enter into such a
transaction. He also argued that the Commission
had erred in law in failing to consider other sub
missions that he had made before the Commission
since the consideration of those submissions, in his
view, could have led the Commission to the conclu
sion that the proposed acquisition would be pre
judicial to the public interest.
As we indicated at the hearing, we are of opin
ion that those two arguments are devoid of merit.
Assuming that, as contended by counsel, the Com
mission failed to consider whether the corporate
powers of the Canadian National Railway Com
pany were sufficiently broad to enable it to enter
into the proposed acquisition, such a failure would
not, in our view, vitiate the decision of the Com
mission. Under section 27(4), the Commission
must form an opinion on the consequences of the
proposed acquisition not on the conditions prece
dent to its legal validity. We are also of opinion
that the decision of the Commission is not vitiated
by its failure to give effect to the other submissions
that counsel had made. All those submissions
tended to show that the proposed acquisition
would be prejudicial to the public interest. They
were considered by the Commission, which sum
marized them correctly in its decision. The Com
mission, however, rejected them because it found
them to be either irrelevant or ill founded. In
reaching such a conclusion, the Commission, in
our view, properly exercised its powers under sec
tion 27(4). That section imposes on the Commis
sion, not on this Court, the duty to form an opinion
whether a proposed acquisition would be prejudi
cial to the public interest; in order to perform that
duty, the Commission must determine what, in its
view, are the requirements of the public interest.
Counsel for Canadian Pacific Limited also sub
mitted two arguments which were, I must say,
adopted by counsel for the other appellant.
He first contended that the Commission had
erred in its interpretation of section 27(4)(b) of
the National Transportation Act. In support of
that contention, counsel referred to a passage of
the decision under attack which, in his view,
showed that the Commission had acted on the
wrong assumption that it had, under section 27(4),
to assess the effects of the proposed acquisition on
the objectors rather than on the public interest. A:
was said at the hearing, we are of opinion that this
argument is without foundation. When the passage
of the decision to which counsel referred is read it
its context, it becomes apparent that the Commis
sion, in expressing itself as it did, did not intend tc
describe the extent of its duties under section
27(4). When the whole decision is read, it
apparent that the Commission took a correct view
of its duties.
The second argument put forward by counsel foi
Canadian Pacific Limited was the only one or
which the Court considered it necessary to heat
counsel for the respondent and for the Commis
sion. That argument is that the Commission failed
to observe a principle of natural justice in that it
based its decision on information which was not
disclosed to the objectors who were thus deprived
of the opportunity of making representations of
adducing evidence in respect thereto.
That argument makes reference to the conclud
ing paragraph of the decision under attack, whicl-
reads as follows:
Having said that, we have carefully weighed the evidence
submitted in the course of the public hearing and fully con
sidered other information which has come to our attentior
during our investigation of this proposed acquisition, and con
cluded that, within our frame of reference, there is nothing
before us which demonstrates that this proposed acquisition
will unduly restrict competition or otherwise be prejudicial tc
the public interest. Accordingly, we do not disallow the pro
posed acquisition.
In support of his contention, counsel invoked the
authority of many well known decisions where the
courts have held that, in cases where a decision
cannot be made by an authority without first
giving to the party to be affected by it a faii
opportunity to be heard, that party does not gel
the fair hearing to which he is entitled if the
decision-making authority does not give him the
opportunity to contradict evidence prejudicial tc
him that has been obtained by the authority.
In my view, it is not necessary to examine the
decisions relied on by counsel on this point because
a careful reading of section 27(3) and (4) of the
National Transportation Act demonstrates that
they have no application here.
Under section 27(3), the sole right of a person
who is to be affected by a proposed acquisition is
to object to the Commission. Once an objection
has been made, the duty of the Commission is to
make the investigation that it considers necessary
or desirable in the public interest so as to be able
to form an opinion on the question whether the
proposed acquisition will unduly restrict competi
tion or otherwise be prejudicial to the public inter
est. The purpose of the investigation made by the
Commission is not merely to enable it to rule on
the validity of the various arguments raised by the
objectors in support of their objection; the duty of
the Commission is to form an opinion on the
effects of the proposed acquisition. If the Commis
sion decides, under section 27(4)(a) to hold a
public hearing, that hearing is nothing more than a
part of the Commission's investigation. The deci
sion to hold a public hearing does not have the
effect of transforming the Commission's investiga
tion into an adversary contest. I fail to see how the
decision of the Commission to hold a public hear
ing could create, in favour of the objectors, rights
that they would not otherwise have. The rights of
an objector cannot vary according to the decision
of the Commission to hold or not to hold a public
hearing.
The right of a person to object under section
27(3) may imply the right to adduce evidence and
submit representations in support of the objection.
This point does not need to be decided in this case
since it is common ground that the appellants were
given that opportunity. The contention of the
appellants is that the right to object under section
27(3) implies, in addition t9 the right to adduce
evidence and make submissions in support of the
objection, the right to be given an opportunity to
contradict any information bearing on the objec
tion obtained by the Commission during the course
of its investigation. This contention, in my view, is
based on the false premiss that the making of an
objection under section 27(3) creates a lis or qua-
si -lis to which the objector is a party and which
cannot be resolved without the objector having
been given a fair opportunity to be heard.
In my opinion, the sole right of an objector
under section 27 is the right to object against a
proposed acquisition (with everything that this
right may imply); that section does not give an
objector the right to participate in a trial for the
purpose of determining the validity of the objec-
tion. I must add that I do not see in this legislative
scheme anything that I consider unfair or contrary
to natural justice.
For these reasons, I would dismiss the appeals
and the section 28 application.
* * *
The following are the reasons for judgment
delivered orally in English by
LE DAIN J.: I agree with the reasons of my
brother Pratte and wish only to make some further
observations concerning the issue of natural
justice.
What is broadly in issue is the extent to which
an administrative tribunal is obliged by the rules
of natural justice to disclose to interested parties
the material which it proposes to take into con
sideration as the basis of its decision. There is no
general principle that can be formulated on this
issue. Each case must be considered in the light of
its particular circumstances and statutory context.
The two general considerations involved—the right
of an administrative tribunal to assemble the basis
of decision in a variety of ways, and the right of
interested parties to a fair opportunity to make
their case—are succinctly expressed in the classic
and oft quoted dictum of Lord Loreburn L.C., in
Board of Education v. Rice [1911] A.C. 179, at
182: "They can obtain information in any way
they think best, always giving a fair opportunity to
those who are parties in the controversy for cor
recting or contradicting any relevant statement
prejudicial to their view."
Obviously, a tribunal of this kind, particularly
where it is required, as here, to come to an opinion
upon issues of policy, as well as fact and law, may,
in the absence of statutory provision to the con
trary, base its decision upon a variety of material,
including, in addition to evidence and submissions
at formal hearings, information and opinion gath
ered by other means, material of which it may take
judicial or official notice, and its own accumulated
expertise. As Duff C.J. expressed it in Canadian
National Railways Company v. The Bell Tele
phone Company of Canada [1939] S.C.R. 308, at
317, with reference to the former Board of Rail
way Commissioners:
The Board is not bound by the ordinary rules of evidence. In
deciding upon questions of fact, it must inevitably draw upon
its experience in respect of the matters in the vast number of
cases which come before it as well as upon the experience of its
technical advisers. Thus, the Board may be in a position in
passing upon questions of fact in the course of dealing with, for
example, an administrative matter, to act with a sure judgment
on facts and circumstances which to a tribunal not possessing
the Board's equipment and advantages might yield only a vague
or ambiguous impression.
What is not so clear is the extent to which a
tribunal may in particular cases be obliged to
disclose the evidence, information and opinion
which it proposes to consider in coming to a deci
sion. It can not be said that as yet the case law has
given very clear indications as to the potential
scope of this duty of disclosure. It is far from
supporting the fullest possible literal application of
the principle expressed by Lord Loreburn "a fair
opportunity to those who are parties in the contro
versy for correcting or contradicting any relevant
statement prejudicial to their view". 1
Of course, a duty of disclosure only exists to the
extent that the requirements of natural justice
apply, or there is a duty to act fairly in a proce
dural as well as a substantive sense. What was said
by Lord Loreburn in Board of Education v. Rice
was said with reference to an administrative body
having a duty to determine questions of law and
de Smith, Judicial Review of Administrative Action (3rd
ed.) 1973, pages 182-183, speaking of the duty with respect to
the conduct of hearings of tribunals with broad powers concern
ing development of the basis of decision, states:
They are nevertheless obliged to act in accordance with
natural justice. And this means that, in the absence of
contrary intendment, they must not place a party at a
disadvantage by depriving him of an adequate opportunity of
commenting on material relevant to their decision if it is
gleaned from an outside source or in the course of their own
investigation, or from evidence given in earlier cases. As yet
the case-law gives no clear indication of the extent to which
they will be permitted to abstain from disclosing during the
hearing their own expert opinions, or information relevant to
the exercise of their discretion in so far as they can take
public policy considerations into account. But it is thought
that the courts will lean in favour of imposing judicial
standards as far as practicable, so that if a party is misled as
to the basis on which the tribunal is likely to decide and is
thus placed at a material disadvantage in putting his case, he
may be held to have been denied natural justice.
fact in a matter in which there could be said to be
a controversy or opposite "sides"—in other words,
a lis. In situations of this kind the courts have been
increasingly disposed to recognize a duty to dis
close reports of inspectors or others which are to
form part of the basis of decision.' There has also
been affirmation of the principle that a tribunal
must not receive evidence or submissions from one
of the parties behind the back of the other.' In
such cases, where individual rights or interests are
to be affected by a decision it has been recognized
that natural justice or fairness requires the disclo
sure of material that a party must be aware of if it
is to have an opportunity to meet the case against
it.
I know of no cases, however, supporting a gener
al duty to disclose all of the material which is to
form part of the basis of decision, including infor
mation of which a tribunal may take official
notice. It would seem obvious that a tribunal
cannot, as a practical matter, be expected to give
notice of its own expertise, or in other words, the
informed judgment and policy perspectives which
are the result of its special qualifications and
experience. Admittedly, the words "other informa
tion which has come to our attention during our
investigation of this proposed acquisition" imply
something different. They suggest information,
and possibly evidence, that has been received by
the Water Transport Committee in the course of
and as a result of its investigation, but we do not
know the nature of the "other information" to
which the Committee makes reference in its con
clusions, much less its relation to or bearing on the
specific objections of the appellants.
2 See, for example, Knapman v. Board of Health for Salt-
fleet Township [1954] O.R. 360, [1954] 3 D.L.R. 760
(affirmed [1955] 3 D.L.R. 248, and (1957) 6 D.L.R. (2d-) 81);
R. v. Ontario Racing Commission [1971] 1 O.R. 400, 15
D.L.R. (3d) 430; Blois v. Andras [1973] F.C. 182; Lazarov v.
Secretary of State of Canada [1973] F.C. 927. In this respect,
the courts appear to have moved some distance from the
position adopted by the House of Lords in Local Government
Board v. Arlidge [1915] A.C. 120, in which it was held that_
there was no right on an appeal to the Local Government Board
to see the inspector's report of the public local inquiry because
such a duty of disclosure would inhibit the candour of depart
mental communications.
3 See, for example, Errington v. Minister of Health [1935] 1
K.B. 249; Volkswagen Northern Ltd. v. Board of Industrial
Relations (1964) 49 W.W.R. 574.
The appellants relied particularly on the deci
sion of this Court in Magnasonic Canada Limited
v. Anti-dumping Tribunal [1972] F.C. 1239,
which held that the Anti-dumping Tribunal had
not conducted the inquiry required by the statute
because it had based its decision on information
that was not disclosed to the parties. What was
involved was an inquiry by the Tribunal as to
whether the dumping of certain goods had caused,
was causing or was likely to cause material injury
to the production in Canada of like goods. As in
this case, the inquiry consisted in part of a public
hearing and in part of other forms of
investigation.' It was said by Jackett C.J., deliver
ing the judgment of the Court [at page 1244]:
"The feature of this type of `inquiry' which is to
be noted is that, while the `parties' had full knowl
edge of the evidence adduced at the public hear
ing, they had no opportunity to know what other
evidence and information was accepted by the
Tribunal and had no opportunity to answer it or
make submissions with regard thereto."
The Court concluded as follows [at page 1249]:
Our conclusion is, therefore, that the Tribunal made the
decision under attack without having conducted the inquiry
required by the statute, in that it acted on information that was
not put before it in the course of hearings by the Tribunal or a
single member of the Tribunal such as were provided by the
statute, with the result that no opportunity was given to the
parties to answer such information (either as obtained or,
where based on confidential communications, as communicated
to them in some way that complied with section 29(3)) and no
4 The inquiry that was conducted was described by Jackett
C.J. [at page 1244] as follows:
The "inquiry" in this case consisted, in part, of a public
hearing, at which Magnasonic and other parties, all of whom
were represented by counsel, adduced evidence and were
given an opportunity to make submissions with reference to
the evidence presented at such hearing. However, this hear
ing was conducted on the basis that no person would be
required to give evidence against his will if he took the view
that it was "confidential". In part, the inquiry consisted in
the receipt by a member or members of the Tribunal or by
the staff of the Tribunal, otherwise than during a sittings, of
confidential evidence requested by the Tribunal or sent to it
voluntarily by the Deputy Minister or others. Finally, the
inquiry consisted in visits paid by one or more members of
the Commission or its staff to premises of Canadian manu
facturers and one or more interviews also conducted by
members or staff during the course of which visits and
interviews evidence and information was obtained.
opportunity was given to the parties to make submissions with
regard thereto.
The decision in the Magnasonic case appears to
have been based essentially on the conclusion that
the applicable statutory provisions indicated an
intention that the necessary inquiry would be con
ducted by means of hearings at which the parties
could be present and represented, and that as a
necessary implication of this, any evidence or
information that the Tribunal proposed to consider
as the basis of its decision would be disclosed to
the parties in the course of such hearings so that
they would have an opportunity to answer, by
evidence or argument, anything that they might
consider prejudicial to their point of view. Jackett
C.J. observed [at page 1247]: "A right of a party
to `appear' at a `hearing' would be meaningless if
the matter were not to be determined on the basis
of the `hearing' or if the party did not have the
basic right to be heard at the hearing." And he
further said [at pages 1248-49]:
We fully accept it that the Tribunal may conduct a programme
of amassing information relevant to a matter before it. What,
as it appears to us, the statute contemplates is that such
material, to the extent that it seems useful, be built into the
record of the matter during the course of the hearings in such
manner as the Tribunal chooses provided that it is consistent
with giving the "parties" an opportunity to be heard. (One
obvious way is to have commission counsel who submits evi
dence and makes submissions in the same way as counsel for a
party.)
The statutory right of objection and the statu
tory duty of investigation in the present case
appear to be rather different in their essential
nature. The Commission clearly has a discretion as
to the kind of investigation it will make in a
particular case and whether it will hold any public
hearing at all, which is sufficient to distinguish its
duty in respect of investigation from the view
which the Court took of the statutory duty of
inquiry in the Magnasonic case.
In my opinion, the right conferred by subsection
(3) of section 27 of the National Transportation
Act upon persons affected by a proposed acquisi
tion to object to such acquisition on the ground
that it will unduly restrict competition or otherwise
be prejudicial to the public interest implies that
the investigation conducted pursuant to subsection
(4) will be such as to afford such persons a full and
effective opportunity to make their objections.
Apart from the interest of persons affected by a
proposed acquisition, there is, as suggested by the
Chief Justice in the Magnasonic case, a general
public interest in providing an effective opportu
nity to make objections since that is the chief
means by which the Commission may assure itself
of the necessary basis for its determination or
opinion as to whether a proposed acquisition will
unduly restrict competition or otherwise be pre
judicial to the public interest. What a full and
effective opportunity to make an objection will
require in a particular case will depend on the
nature of the objection and the issues raised by it.
In some cases written submissions may be suffi
cient for effective assertion of the objection. In
others it may be necessary to adduce evidence and
to offer an opportunity for cross-examination, in
which case it will be necessary to hold a hearing.
In the present case the appellants were afforded a
full opportunity in a public hearing to adduce
evidence and make submissions in support of their
objections. They contend, however, that their right
to make objections necessarily included the right
to know and to meet anything in the way of
information that could be prejudicial to their
objections.
The right to make objections is one thing; the
right to have the issue determined upon the basis
of the objections is another. Although an objection
is necessary to give the Commission the jurisdic
tion pursuant to section 27 of the Act, the objec
tions do not define the extent of the issue before
the Commission. It is true that the same language
is used to describe the grounds upon which an
objection may be made and the question upon
which the Commission must come to an opinion.
This does not mean, however, that the Commission
can only disallow if it comes to the opinion that the
objections are well founded. It may not be per
suaded by the objections but by its own additional
investigation and consideration of the proposed
acquisition. Once the Commission has been
activated by an objection it is not confined to
determining whether the objector has made a case.
The issue is not to be determined as between the
party proposing to make the acquisition and an
objector. An objector is entitled to a full opportu
nity to make his objection but not to meet every
consideration that may form the basis of decision.
* * *
The following are the reasons for judgment
delivered orally in English by
HYDE D.J.: Having received objections from
various interests, including the two appellants
before us, the Commission was required by subsec
tion 27(4)(a) of the National Transportation Act
to:
... make such investigation, including the holding of public
hearings, as in its opinion is necessary or desirable in the public
interest.
and following such investigation it was empowered
by paragraph (b) to disallow such acquisition if in
its opinion it "will unduly restrict competition or
otherwise be prejudicial to the public interest".
It is clear that the Commission is not required to
hold any public hearing except where it may con
sider one necessary to make an investigation suffi
cient to enable it to reach its opinion on whether to
disallow or not.
If public hearings are held they would not neces
sarily constitute the sole investigation. This is evi
dent from the use of the word "including" with
reference to hearings in section 27(4)(a).
The nature of the Commission is difficult to
define. In general it is an advisory and regulatory
body charged, amongst other things, with the
study of many facets of transportation in Canada
and reporting to the Minister of Transport thereon
as set out in section 22 of the Act. 5
5 22. (1) In addition to its powers, duties and functions
under the Railway Act, the Aeronautics Act and the Transport
Act, the Commission shall
(a) inquire into and report to the Minister upon measures to
assist in a sound economic development of the various modes
of transport over which Parliament has jurisdiction;
(b) undertake studies and research into the economic aspects
of all modes of transport within, into or from Canada;
(c) inquire into and report to the Minister on the relation
ship between the various modes of transport within, into and
from Canada and upon measures that should be adopted in
order to achieve coordination in development, regulation and
control of the various modes of transport;
(d) perform, in addition to its duties under this Act, such
other duties as may, from time to time, be imposed by law on
the Commission in respect of any mode of transport in
(Footnote continued from previous page)
Canada, including the regulation and licensing of any such
mode of transport, control over rates and tariffs and the
administration of subsidies voted by Parliament for any such
mode of transport;
(e) inquire into and report to the Minister upon possible
financial measures required for direct assistance to any mode
of transport and the method of administration of any meas
ures that may be approved;
(J) inquire into and recommend to the Minister from time te
time such economic policies and measures as it cone: 1 :3
necessary and desirable relating to the operation of the
Canadian merchant marine, commensurate with Canadian
maritime needs;
(g) establish general economic standards and criteria to be
used in the determination of federal investment in equipment
and facilities as between various modes of transport and
within individual modes of transport and in the determina
tion of desirable financial returns therefrom;
(h) inquire into and advise the government on the overall
balance between expenditure programs of government
departments or agencies for the provision of transport facili
ties and equipment in various modes of transport, and on
measures to develop revenue from the use of transport facili
ties provided or operated by any government department or
agency; and
(i) participate in the economic aspects of the work of inter-
governmental, national or international organizations dealing
with any form of transport under the jurisdiction of Parlia
ment, and investigate, examine and report on the economic
effects and requirements resulting from participation in or
ratification of international agreements.
(2) The Commission may examine into, ascertain and keep
records of, and make appropriate reports to the Minister on,
(a) the shipping services between Canadian ports and from
ports in Canada to ports outside Canada that are required
for the proper maintenance and furtherance of the domestic
and external trade of Canada;
(b) the type, size, speed and other requirements of the
vessels that are and in the opinion of the Commission should
be employed in such services;
(c) the costs of marine insurance, maintenance and repairs,
and wages and subsistence of officers and crews and all other
items of expense in the operation of vessels under Canadian
registry and the comparison thereof with similar vessels
operated under other registry;
(d) the water transportation industry and undertakings and
services directly related thereto;
(Continued on next page)
In the course of the carrying out of its duties the
Commissioners and the staff of the Commission
undoubtedly acquire a considerable expertise and
vast documentary records which will assist them in
dealing with the matters entrusted to it, including
the formulation of the type of opinion which it was
called upon to make in this instance under section
27(4) (b).
The objections raised pursuant to section 27(3)
obliged the Commission to act under section 27(4)
(Continued from previous page)
(e) the terms, conditions and usages applying to transporta
tion of goods and passengers by water within, into and from
Canada;
(/) the work of international and intergovernmental organi
zations and agencies that concern themselves with the trans
portation of goods and passengers by water; and
(g) such other marine matters as the Minister may request
or as the Commission may deem necessary for carrying out
any of the provisions or purposes of this Act.
(3) The Commission shall
(a) exercise and perform on behalf of the Minister such
powers, duties or functions of the Minister under the Canada
Shipping Act as the Minister may require; and
(b) exercise and perform any other powers, duties or func
tions in relation to water transport conferred on or required
to be performed by the Commission by or pursuant to any
other Act or any order of the Governor in Council.
(4) In carrying out its duties and functions under this sec
tion, the Commission may consult with persons, organizations
and authorities that in the opinion of the Commission are in a
position to assist the Commission in formulating and recom
mending policy and the Commission may appoint and consult
with committees being representative of such persons, organiza
tions and authorities.
(5) The Commission may delegate, in whole or in part, to
any other body or authority subject to the legislative authority
of the Parliament of Canada any of the powers or - duties of the
Commission in respect of safety in the operation of commodity
pipelines and such delegated body or authority may exercise
and shall perform the powers or duties so delegated.
(6) Where a person who transports goods by a mode of
transport other than rail, charges a toll, expressed as a single
sum, for the carriage of traffic partly by one mode of transport
and partly by a different mode of transport, the Commission,
for the purpose of determining whether a toll charged is
contrary to any Act of the Parliament of Canada, may require
such person to declare forthwith to the Commission, or may
determine, what portion of such single sum is charged in
respect of the carriage of traffic by the mode of transport by
which such person transports goods. 1966-67, c. 69, s. 15.
but the "investigation" it made did not create an
adversary contest or a lis inter partes where the
objectors were entitled to have records of the
Commission, such as I have referred to, laid upon
the table for them to examine and explore.
With all the respect which I have for the princi
ple of audi alteram partem, which forms one of
the corner-stones of our judicial system, it must be
recognized that we are not dealing here with a
judicial contest.
In this I am strongly supported by the views of
Lord Greene M.R. in the decision of the English
Court of Appeal in B. Johnson & Co. (Builders)
Ltd. v. Minister of Health'. That case dealt with
an application by certain landowners to quash an
order by a local authority, confirmed by the Minis
ter of Health, under the Housing Act, 1936. The
applicants' grounds were that the Minister, in
considering their objections, was bound to act in a
quasi-judicial manner and that he had failed to do
so in not making available to the objectors the
contents of certain letters written to him before the
order was made. The trial court (Henn Collins J.)
quashed the order and the Minister appealed and
his appeal was maintained. The position of the
Minister in that case was very similar to that of
the Commission under our National Transporta
tion Act. The opinions of Lord Greene M.R. and
Cohen L.J. are well worth reading in their entirety
but I will limit myself to the following passage in
that of Lord Greene at pages 400-401:
It is not disputed by the respondents that the Minister, in
coming to his decision whether to confirm or not a compulsory
purchase order, is entitled to have his mind informed in a
number of ways. In other words, he is not limited to material
contained in the objections—not limited to arguments, evi
dence, and considerations put forward by the local authority for
the purpose of the considerations of the objections, or put
forward by the objectors themselves. It is obvious to anyone
who has any familiarity with the operations of government
departments that matters of high public policy, such as this,
are, or may be, under constant consideration and review by the
necessary Minister. The problem does not, so to speak, arrive
suddenly out of the blue by the putting forward by the local
authority of a compulsory purchase order for confirmation. The
housing conditions in great cities are the subject of continuous
e [1947] 2 All E.R. 395.
consideration, not merely by one Ministry, but by several.
Information may have arrived, reports may have been obtained,
representations and arguments may have been put forward by
other Ministries, and in a great many cases one would expect to
find a fairly bulky file, much of which, if not the whole of it,
may bear on some particular application. Obviously, it would
be absurd to say that a Minister, in considering whether to
confirm the compulsory purchase order, must exclude from his
mind information and considerations which have come before
him in that sort of way. It is on the obligation alleged, viz., to
disclose information of that kind, that the present controversy
turns. It is, not unfair to say that, generally speaking, the idea
that a Minister can be compelled to disclose to anybody
information of that kind, which he has obtained as a purely
administrative person, is alien to our whole conception of
government in this country.
I am not saying that there may not be certain
stages in the hearing where one comes close to a
"lis" between certain participants in which the
"audi" rule might be invoked to ensure a fair
hearing but I. am satisfied that applying the dicta
in the Johnson decision that it cannot be invoked
against the Commission in this instance.
For these and the reasons more fully set out by
Mr. Justice Pratte I would dismiss these appeals.
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.