T-3339-77
In re Order No. 1977-A-443 of the Air Transport
Committee of the Canadian Transport Commis
sion and in re the operation of a commercial air
service by Anishenineo Piminagan Inc.
Trial Division, Mahoney J.—Ottawa, September
15 and 19, 1977.
Practice — Application to rescind certificate re order of
Canadian Transport Commission — Alternatively, application
to stay order pending judgment in another action — Certifi
cate making order of CTC an order of Court by operation of
National Transportation Act — Whether or not that order can
be rescinded, and if so, whether or not it should be rescinded
— Alternatively, whether or not the order should be stayed —
Aeronautics Act, R.S.C. 1970, c. A-3, ss. 9(1), 10(1),(2), 17(1)
— National Transportation Act, R.S.C. 1970, c. N-17, ss.
4(b), 61(1),(2), 64(2) to 64(9) inclusive — Federal Court Rules
330, 1904, 1909.
An order made by the Canadian Transport Commission
pursuant to the Aeronautics Act was entered of record in the
Federal Court pursuant to and with the effect prescribed by the
National Transportation Act. Applicant seeks an order rescind
ing this order constituted by certificate pursuant to Rule 330.
Two issues are involved in this motion: firstly, is what is now an
order of this Court subject to rescission by this Court? and
secondly, if so, should it be rescinded? Alternatively, applicant
seeks an order pursuant to Rules 1904 and 1909 staying the
order until judgment is rendered in an action by applicant, as
plaintiff, against the Canadian Transport Commission.
Held, the applications are dismissed. Parliament has given
the CTC the option of following the "usual practice and
procedure" of the Court or of following the procedure it did in
this instance. It would be unreasonable to hold that if it chooses
the second, it is bound by requirements that pertain only to the
first. Parliament has prescribed, in unambiguous terms, a
procedure for making the orders of the CTC orders of this
Court, which, unlike the Court's own procedures, excludes
compliance with the principle audi alteram partem. That
procedure has been scrupulously followed here and, according
ly, the order is no more subject to rescission than had it been
registered after due compliance with the "usual practice and
procedure" of the Court. The Court has no doubt as to its
jurisdiction to stay this order following its usual practice and
procedure. The order sought to be stayed is a final order and
subsections 64(2) to 64(9) inclusive of the National Transpor
tation Act provide for an appeal from that final judgment to
the Court of Appeal. The proceedings taken for declaratory and
injunctive relief in this Court are not such an appeal. The
discretion of this Court to change the time fixed for compliance
with the order ought to be exercised only in circumstances
where the Court would vary or stay one of its own final
judgments in similar fashion. It would not do so unless an
appeal had been taken or, at least, an undertaking given that
one would be taken.
Public Service Alliance of Canada, Local 660 v. Canadi-
an Broadcasting Corporation [1976] 2 F.C. 151, distin
guished; International Brotherhood of Electrical Workers,
Local 529 v. Central Broadcasting Co. Ltd. [1977] 2 F.C.
78, distinguished; R. v. Star Treck Holdings Ltd. [1978] 1
F.C. 61, distinguished.
APPLICATION.
COUNSEL:
Walter O. Fedoryk for Canadian Transport
Commission.
Michael L. Phelan for Anishenineo Pimina-
gan Inc.
SOLICITORS:
Deputy Attorney General of Canada for
Canadian Transport Commission.
Herridge, Tolmie, Ottawa, for Anishenineo
Piminagan Inc.
The following are the reasons for order ren
dered in English by
MAHONEY J.: This is an application by Anishe-
nineo Piminagan Inc. (hereafter called the "appli-
cant") for an order rescinding the certificate of
this Honourable Court dated August 30, 1977 or
alternatively for an order staying the order con
stituted by that certificate until judgment in an
action commenced in this Court by the applicant,
as plaintiff, against the Canadian Transport Com
mission (hereafter called the "CTC"), as
defendant'. On August 24, 1977, the Air Trans
port Committee of the Canadian Transport Com
mission made Order No. 1977-A-443. On August
30, a copy of the order was entered of record in
this Court pursuant to and with the effect pre
scribed by subsections 61(1),(2) and (3) of the
National Transportation Act 2 . Order No. 1977-A
443 was made pursuant to section 10 of the
' Court No. T-3002-77, commenced July 21, 1977.
2 R.S.C. 1970, c. N-17.
Aeronautics Act 3 . The motion to rescind the
Court's certificate is made pursuant to Rule 330
and the alternative motion to stay pursuant to
Rules 1904 and 1909.
As to the first motion, there are two distinct
issues to be determined. Firstly, is what is now an
order of .this Court subject to rescission by this
Court? Secondly, if so, should it be rescinded?
Material provisions of the Aeronautics Act are:
9. (1) In this Part
"commercial air service" means any use of aircraft in or over
Canada for hire or reward;
"Commission" means the Canadian Transport Commission;
"hire or reward" means any payment, consideration, gratuity
or benefit, directly or indirectly charged, demanded, received
or collected by any person for the use of an aircraft;
10. (1) The Commission has full jurisdiction to inquire into,
hear and determine any matter
(a) where it appears to the Commission that any person has
failed to do any act, matter or thing required to be done by
this Part or by any regulation, licence, permit, order or
direction made thereunder by the Commission, or that any
person has done or is doing any act, matter or thing contrary
to or in violation of this Part or any such regulation, licence,
permit, order or direction, or
(b) where it appears to the Commission that the circum
stances may require the Commission, in the public interest,
to make any order or give any direction, leave, sanction or
approval that by law it is authorized to make or give, or with
respect to any matter, act, or thing that by this Part or any
such regulation, licence, permit, order or direction is prohib
ited, sanctioned or required to be done.
(2) The Commission may order and require any person to
do, forthwith, or within or at any specified time and in any
manner prescribed by the Commission so far as it is not
inconsistent with this Act, any act, matter or thing that such
person is or may be required to do under this Part, or any
regulation, licence, permit, order or direction made thereunder
3 R.S.C. 1970, c. A-3.
by the Commission and may forbid the doing or continuing of
any act, matter or thing that is contrary to this Part or any
such regulation, licence, permit, order or direction and, for the
purposes of this section, has full jurisdiction to hear and
determine all matters, whether of law or fact.
17. (1) No person shall operate a commercial air service
unless he holds a valid and subsisting licence under section 16.
Section 17 goes on to provide that its violation is
an offence and for penalties upon summary
conviction.
The full text of Order No. 1977-A-443 follows:
WHEREAS it has come to the attention of the Air Transport
Committee that an alleged commercial air service had been
commenced on or about July 1, 1977 between Winnipeg and
Island Lake, Manitoba using an ST-27 aircraft;
WHEREAS by letter of June 30, 1977, the Chiefs for the
Indian Bands of St. Theresa, Waasagamack, Red Sucker Lake
and Garden Hill submitted to the Chairman, Air Transport
Board [sic] that "Our organization does not intend to be an
"air carrier" within the meaning of Part II of the Act but we
are not quite clear as to the application of the definition of
"hire or reward" as related to a service owned and operated by
an organization for the benefit of its own membership. It is
clear that the operating costs must be defrayed in some way but
we are most anxious to do nothing which will infringe against
the Act or your regulations. We would accordingly appreciate
receiving your sanction and approval of our operation. If you
require any further information or assurances please be assured
of our complete co-operation.";
WHEREAS the Committee in a letter of July 12, 1977
requested from the Solicitor for Anishenineo Piminagan Inc.
responses to certain questions in order to determine whether the
service being operated was commercial in nature;
WHEREAS by telex of July 15, 1977, the Committee request
ed of the Solicitor for Anishenineo Piminagan Inc., on an
urgent basis, to respond to the questions set out therein not
later than Tuesday, July 19th;
WHEREAS no response was received from the Solicitor for
Anishenineo Piminagan Inc.;
WHEREAS by telex of July 20, 1977 to the Board of Gover
nors and the Solicitor for Anishenineo Piminagan Inc., the
Committee made a further request for the information sought
and also stated "However based on the material at hand and as
understood by the Committee a commercial air service is being
operated which is in violation of Section 17 of the Aeronautics
Act" ;
WHEREAS the Committee also directed in the aforesaid telex
"Accordingly said Corporation and those responsible should
cease and desist forthwith from engaging in the further opera
tion of commercial air services.";
WHEREAS the Solicitor for Anishenineo Piminagan Inc. has
now submitted a response to the questions posed by the
Committee;
WHEREAS the Committee has considered the matter and
confirms its previous order that Anishenineo Piminagan Inc.
should cease and desist forthwith from providing a commercial
air service in contravention of Section 17 of the Aeronautics
Act;
IT IS ORDERED THAT:
Pursuant to Section 10(2) of the Aeronautics Act Anishe-
nineo Piminagan Inc. is hereby ordered to cease and desist
forthwith the operations of a commercial air service.
Material provisions of the National Transporta
tion Act are:
4. This Act applies to the following modes of transport:
(b) transport by air to which the Aeronautics Act applies;
(Section 5 expressly makes the provisions of Part
IV of the Act, including the following sections,
applicable to proceedings before the CTC pursuant
to the Aeronautics Act.)
61. (1) Any decision or order, made by the Commission may
be made a rule, order or decree of the Federal Court, or of any
superior court of any province of Canada, and shall be enforced
in like manner as any rule, order or decree of such court.
(2) To make such decision or order a rule, order or decree of
any such court, the usual practice and procedure of the court in
such matters may be followed; or, in lieu thereof, the Secretary
may make a certified copy of such decision or order, upon
which shall be made the following endorsement signed by the
President and sealed with the official seal of the Commission:
To move to make the within a rule (order or decree, as the
case may be) of the Federal Court of Canada (or as the case
may be).
Dated this day of A.D. 19....
A.B.
[Seal.] President of the Canadian Transport Commission.
(3) The Secretary may forward such certified copy, so
endorsed, to the registrar, or other proper officer of such court,
who shall, on receipt thereof, enter it as of record, and the
decision or order shall thereupon become and be the rule, order
or decree of such court.
Subsection (3) would appear to apply only to the
alternate procedure authorized by the last portion
of subsection 61(2). That is the procedure which
the CTC elected to follow and, technically, it is
rescission of the certificate issued by this Court's
Administrator as to the entry of record of Order
No. 1977-A-443 that is sought. Rule 330 is
invoked as authority for such an order.
Rule 330. The Court may rescind any order that was made ex
parte, but no such rescission will affect the validity or character
of anything done or not done before the rescinding order was
made.
Presumably the effect of rescinding that certificate
would be to rescind Order No. 1977-A-443 as an
order of this Court. I intend, for conve
nience, hereafter to refer to what is sought to be
rescinded or, alternatively, stayed as the "order".
In arguing that the Court has jurisdiction, the
applicant relies on two decisions of this Court
dealing with registrations of orders under Part V
of the Canada Labour Code". In the earlier cases,
my brother Walsh struck out the registration of an
arbitrator's order effected, ex parte, under section
159 of the Code. My brother Cattanach, while
dealing with numerous other matters, adopted Mr.
Justice Walsh's decision in holding the ex parte
registration of an order of the Canada Labour
Relations Board under section 123 of the Code to
be a nullity 6 . Section 159 provides:
159. (1) Where any person or organization has failed to
comply with any order or decision of an arbitrator or arbitra
tion board, any person or organization affected by the order or
decision may, after fourteen days from the date on which the
order or decision is made, or the date provided in it for
compliance, whichever is the later date, file in the Federal
Court of Canada a copy of the order or decision, exclusive of
the reasons therefor.
(2) On filing in the Federal Court of Canada under subsec
tion (1), an order or decision of an arbitrator or arbitration
board shall be registered in the Court and, when registered, has
the same force and effect, and all proceedings may be taken
thereon, as if the order or decision were a judgment obtained in
the Court.
S.C. 1972, c. 18.
5 Public Service Alliance of Canada, Local 660 v. Canadian
Broadcasting Corporation [1976] 2 F.C. 151.
6 International Brotherhood of Electrical Workers, Local
529 v. Central Broadcasting Co. Ltd. [1977] 2 F.C. 78.
It is unnecessary to recite section 123. As Mr,
Justice Cattanach observed, at page 82,
Except for minor differences in the language in section 123
and section 159 dictated by the necessity of the subject mattes
... the language in each section is identical.
The ratio of Mr. Justice Walsh's decision is
expressed in the following passage commencing al
page 152:
Petitioner invokes section 159(2) of the Canada Labour Code.
arguing that the decision of the Arbitrator can be registered in
the Court without any prior notice and when so registered has
the same force and effect and all proceedings may be taken
thereon, as if the order or decision were a judgment obtained in
the Court. However this subsection cannot be read without
reference to subsection (1) of section 159 which provides for
the filing of such a decision after 14 days for registration in the
Court "Where any person or organization has failed to comply
with any order or decision of an arbitrator or arbitration
board". This is a condition which must be fulfilled before such
a filing for registration can be made and subsection (2) merely
sets out the effect of such a registration. Rule 321 of the
Federal Court Rules clearly provides that unless otherwise
authorized to be made ex parte motions must be served on the
opposite parties at least 2 clear days before the hearing, unless
this is dispensed with. Rule 319 requires that the motion shall
be supported by an affidavit setting out all the facts on which
the motion is based that do not appear from the record, and
that the adverse party may file an affidavit in reply, and that
by leave of the Court a witness may be called to testify in
relation to an issue of fact raised by an application.
While petitioner's motion for inter alla, the registration of
the arbitration award was accompanied by an affidavit setting
out that respondent has not complied entirely with the arbitra
tion award, no details were given as to which conditions were
not complied with, and more important it was not served on the
opposite party before the registration was effected so as to give
the respondent the opportunity to deny, as it does, that the
award was not complied with. This is contrary to Federal Court
Rule 321 and to the basic principle of equity audi alteram
partem. The establishment that the arbitration award has not
been complied with is a condition sine qua non of its registra
tion in this Court.
Parliament's prescription for the making of an
order of the CTC an order of this Court under
section 61 of the National Transportation Act is
quite different from its prescription for giving
similar effect to orders under sections 123 and 159
of the Canada Labour Code. It is unnecessary here
to consider the significance, if any, of the distinc
tion that, by subsection 61(3), a CTC order, upon
entry of record in the Court, "shall thereupon
become and be" the order, of the Court while
under the particular provisions of the Canada
Labour Code, an order, upon registration, "has the
same force and effect ... as if ... [it] were a
judgment obtained in the Court." The sections of
the Canada Labour Code prescribe no procedure
for effecting registration. In the absence of such
prescription, the procedures of the Court govern
with the result indicated in the decisions cited.
Section 61 of the National Transportation Act
does, however, prescribe procedure. The CTC has
the choice of following the "usual practice and
procedure" of the Court or it may follow the
procedure it did in this instance. Where Parlia
ment has given the CTC that clear option, it would
be unreasonable to hold that if it chooses the
second, it is bound by requirements that pertain
only to the first.
Parliament has, in unambiguous terms, pre
scribed a procedure for the making of orders of the
CTC orders of this Court which, unlike the
Court's own procedures, excludes compliance with
the principle audi alteram partem. That procedure
has been scrupulously followed here and, accord
ingly, the order is no more subject to rescission
than had it been registered after due compliance
with the "usual practice and procedure" of the
Court. The motion to rescind the order will be
dismissed and I turn now to the alternative motion
to stay it.
The order being, by virtue of subsection 61(3),
the order of this Court, I have no doubt as to this
Court's jurisdiction to stay it in accordance with
the usual practice and procedure of the Court. The
CTC argued that the recent decision in The Queen
v. Star Treck Holdings Ltd.' was on point to the
contrary effect. I do not agree that it is on point.
In that case the Crown sought an order amending
a certificate registered in this Court pursuant to
7 [ 1978l I P.C. 61.
section 223 of the Income Tax Acts.
223. (1) An amount payable under this Act that has not
been paid or such part of an amount payable under this Act as
has not been paid may be certified by the Minister
(2) On production to the Federal Court of Canada, a certifi
cate made under this section shall be registered in the Court
and when registered has the same force and effect, and all
proceedings may be taken thereon, as if the certificate were a
judgment obtained in the said Court for a debt off the amount
specified in the certificate plus interest to the day of payment
as provided for in this Act.
The Minister's certificate remains the Minister's
certificate notwithstanding that it "has the same
force and effect ... as if the certificate were a
judgment" of this Court; it does not, as does an
order to which subsection 61(3) of the National
Transportation Act applies, "become and be
the ... order" of the Court. The Minister's certifi
cate does not, by registration, become the Court's
certificate to amend; the CTC's order does become
the Court's order to stay or otherwise.
The stay is sought under Rules 1904 and 1909:
Rule 1904. (1) Notwithstanding that a judgment or order
requiring a person to do an act specifies a time within which the
act is to be ,done, the Court may make an order requiring the
act to be one within another time, being such time after
service of that order, or such other time, as may be specified
therein.
(2) Where a judgment or order requiring a person to do an
act does not specify a time within which the act is to be done,
the Court may subsequently make an order requiring the act to
be done within such time after service of that order, or such
other time, as may be specified therein.
Rule 1909. A party against whom a judgment has been given or
an order made may apply to the Court for a stay of execution
of the judgment or order or other relief against such judgment
or order, and the Court may by order grant such relief, and on
such terms, as it thinks just.
It is sought until judgment is rendered in an action
commenced by the applicant against the CTC in
this Court which seeks declaratory and injunctive
relief on the premise that the applicant is not
operating a commercial air service, a conclusion
8 S.C. 1970-71-72, c. 63.
contrary to the decision rendered in the order. The
action was commenced July 21; the CTC entered
an appearance and has filed a notice of motion,
which it proposes be dealt with under Rule 324,
seeking to strike out the statement of claim as
disclosing no reasonable cause of action and to
dismiss the action.
In addition to the action in this Court, there is
an action in the Manitoba Court of Queen's Bench
by a licensed commercial carrier against the appli
cant in which, it appears, the question of whether
the applicant is, or is not, operating a commercial
air service must be decided by that Court. The
trial has concluded. An interlocutory injunction
against the applicant has been refused. That court
has, it appears, asked for written arguments and
has reserved its decision. To complete the picture,
a prosecution against the applicant in the Manito-
ba Provincial Court under section 17 of the
Aeronautics Act has been stayed pending the out
come of one or the other or both of the actions in
the Court of Queen's Bench and this Court. The
evidence indicates it is the latter while, in argu
ment, counsel indicated it was the former. That
said, it is the action in this Court that is expressly
referred to in this motion.
The order sought to be amended or stayed is in
the nature of a final judgment; it is not an inter
locutory order. There is provision made, by subsec
tions 64(2) to 64(9) inclusive of the National
Transportation Act, for an appeal from that "final
judgment" to the Federal Court of Appeal. The
proceedings taken for declaratory and injunctive
relief in this Court are not such an appeal 9 . I am
of the view that the discretion of this Court to
change the time fixed for compliance with the
order, either by staying its execution or by fixing a
different time for compliance, ought to be exer
cised only in circumstances where the Court would
vary or stay one of its own final judgments in a
similar fashion. I do not see that it would do so
9 Indeed, in this case, those proceedings were commenced
before the order was made with the apparent intent of forestall
ing it.
unless an appeal had been taken or, at least, an
undertaking given that one would be taken. The
application must be dismissed and, in the absence
of that sine qua non, it is not necessary for me to
indicate the result I should have felt obliged to
reach on the basis of the other material before me.
ORDER
The application is dismissed with costs.
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