Judgments

Decision Information

Decision Content

A-9-77
Robert W. Blanchette, Richard C. Bond and John McArthur, as trustees of the property of Penn Central Transportation Company, Norfolk and Western Railway Company, Thomas F. Patton and Ralph S. Tyler, Jr., as trustees of the property of Erie Lackawanna Railway Company, Illinois Central Gulf Railroad Company and Missouri Pacific Railroad Company (Appellants) (Plain- tiffs)
v.
Canadian Pacific Limited (Respondent) (Defend- ant)
and
Canadian National Railway Company, Grand Trunk Western Railroad Company and Central Vermont Railway Inc. (Mis -en-cause)
Court of Appeal, Urie J. and MacKay and Kerr D.JJ.—Ottawa, November 18 and December 13, 1977.
Jurisdiction — Practice — Railways — Appeal from order to strike out statement of claim — Railway equipment leased by appellants but used by respondent with it paying lessor — Rate increase — Respondent's advising new schedule accept able, but continuing to pay lower rate — Appellants obliged to pay lessor the difference and sought to recover that amount — Whether relief claimed coming within provisions of Railway Act — Railway Act, R.S.C. 1970, c. R-2, ss. 2, 262, 263, 265, 269(4), 288, 301.
This is an appeal from an order of the Trial Division striking out appellants' statement of claim for want of jurisdiction. All parties are railway common carriers. Appellants leased a sub stantial amount of equipment and respondent paid the lessor for use of leased equipment supplied by appellants. After the lessor effected a rate increase, respondent continued to pay appellants at the lower rate even though it had advised appel lants that the new rates were acceptable. Appellants were obliged to pay the lessor the difference in rates and sought to recover that amount from the respondent. The sole question is whether or not the relief sought is found under the only applicable federal legislation in this case, the Railway Act.
Held, the appeal is dismissed. There is nothing in the Rail way Act giving a railway company a right of action against another railway company to recover allegedly unpaid, unau thorized tolls for the use of equipment. The rates were set by private agreement or arrangement independent of any au-
thority emanating from the Railway Act and any liability for payment of those charges flows not from the statute but from the agreement or arrangement.
Quebec North Shore Paper Co. v. Canadian Pacific Ltd. [1977] 2 S.C.R. 1054, applied. McNamara Construction (Western) Ltd. v. The Queen [1977] 2 S.C.R. 654, applied.
APPEAL. COUNSEL:
J. B. Claxton, Q.C., and D. H. Tingley for
appellants.
M. S. Bistricky for respondent.
P. Sevigny-McConomy for mis -en-cause
CNR.
SOLICITORS:
Lafleur, Brown, de Grandpré, Montreal, for appellants.
Canadian Pacific Limited, Law Department, Montreal, for respondent.
Canadian National Railway Company, Law Department, Montreal, for mis -en-cause CNR.
The following are the reasons for judgment rendered in English by
URIE J.: The appellants (plaintiffs), each of which is itself, or through the named trustees, an operator of lines of railroad and other works and undertakings in the United States and, in some instances, in Canada, are plaintiffs in an action brought against the defendants named in the style of cause. The respondent (defendant), Canadian Pacific Limited, moved to strike out the plaintiff's statement of claim as against it by reason of the absence of jurisdiction of the Trial Division in the matter, which motion was granted by an order dated December 10, 1976 [[1977] 2 F.C. 431, sub. nom. Blanchette v. Canadian National Railway Co.]. It is from that order that this appeal is brought.
A similar action was brought by different plain tiffs against the same defendants, plus one addi tional one, under Court file No. T-2002-76. Canadian Pacific Limited obtained an order in that action too, striking out the statement of claim
for the same reason. The appeal [A-8-77] from that order was heard at the same time by agree ment since the issues in each case are identical.
All of the parties hereto are engaged, inter alia, as common carriers in the railway traffic known as the Canada/United States Auto Trade (the "Auto Trade") which developed pursuant to the Canada/ United States Auto Pact of 1966. Specially equipped railway flatcars are used by the plaintiffs and defendants for the shipment of motor vehicles and their components manufactured either in Canada or the United States, to the country other than the country of manufacture or from point to point within the respective countries of manufaç- ture.
The plaintiffs and defendants are also engaged, inter alia, as common carriers in the railway traf fic known as Trailer on flatcar—Container on flatcar (the TOFC-COFC traffic) involving the inter-line transportation of motorized carrier-trail ers and containerized freight from the United States to Canada, from Canada to the United States and from point to point within each country.
A substantial portion of the equipment used by the plaintiffs in the Auto Trade as well as in the TOFC-COFC traffic is owned by the Trailer Train Company, a corporation having its principal place of business in Chicago, Illinois. In para graphs 27, 28, 29, 30, 31, 32, 33 and 34 of the statement of claim, it is alleged that:
27. Plaintiffs, as participating members in the use of railroad equipment furnished by Trailer Train Company, are obligated by contract to the Trailer Train Company for car hire charges according to published rates (the "Trailer Train Rates") and, further, Plaintiffs are primarily liable for all 'charges accruing on Trailer Train Company equipment while it is on Plaintiffs' lines and while it remains on the lines of non-participating carriers, such as Defendants, with whom such equipment has been interchanged.
28. Defendants paid Trailer Train in behalf of Plaintiffs the Trailer Train Rates for the use of equipment furnished by Plaintiffs from the inception of the Auto Trade in 1966 through December, 1970.
29. In October, 1970 the Trailer Train Company advised Plaintiffs and Defendants of a change of rates and published new schedules of rates which came into effect January 1, 1971.
30. In 1971, Defendants advised Plaintiffs and the Trailer Train Company that the said revised Trailer Train Rates were acceptable for the use of Trailer Train equipment.
31. Subsequently, in 1971, Defendants repudiated such advice and gave notice that they would continue to make settlement at the Trailer Train Rates in effect prior to January 1, 1971, and Defendants, except Canadian Pacific which began paying cur rent Trailer Train Rates in January of 1975, have continued to pay Trailer Train in behalf of Plaintiffs on this basis over the objections of Plaintiffs.
32. The Trailer Train Rates were further increased by approxi mately the following percentages on the following dates:
(a) February 1, 1972: 5%;
(b) April 1, 1973: 4.76%;
(c) April 1, 1974: 5%;
(d) December 1, 1974: 8%;
(e) August 1, 1975: 7%; the actual stated increased varying with the type of car and its accessory equipment; and advice of all such increases was given to Defendants.
33. Notwithstanding the said rates increases, Defendants have persisted in their refusal to pay them while at the same time advising Plaintiffs that they are prepared to pay reasonable rates for the use of Trailer Train equipment furnished by Plaintiffs.
34. Plaintiffs, as members of Trailer Train as alleged in para graph 27 above, have been and continue to be obliged to compensate Trailer Train Company for the difference between the Trailer Train Rates in effect prior to January, 1971 and the various rates subsequently from time to time in effect.
It should be noted that it is not alleged that the Trailer Train Company is a railway company and, as I understand it, it is common ground that it is not.
Paragraph (a) of the prayer for relief in the statement of claim reads as follows:
(a) It be declared that the Defendants are indebted to the Plaintiffs for the difference between the Trailer Train Rates in force prior to January 1, 1971 and the Trailer Train Rates from time to time in force since January 1, 1971;
The remainder of the prayer for relief sets forth the specifics of the claims against each defendant by each plaintiff.
The learned Trial Judge relied on the judgment of the Supreme Court of Canada in Quebec North Shore Paper Company v. Canadian Pacific Lim ited [1977] 2 S.C.R. 1054, in concluding that the respondent's motion to strike out the statement of claim, as against it, must be granted.
Among the passages in the reasons for judgment of Laskin C.J.C. in the Quebec North Shore case, to which reference was made by the Trial Judge, the following, found at pages 1063 and 1064 of the report, provides the two-fold test which must be met to enable the Federal Court to assume juris diction under section 23 of its enabling Act.'
Addy J. [the trial Judge] did not deal with the effect of s. 101 of the British North America Act upon s. 23 of the Federal Court Act, and appeared to assume that he had jurisdiction if the enterprise contemplated by the agreement as a whole fell within federal legislative power. As I have already indicated, the question upon which he proceeded is not reached unless the claim for relief is found to be one made "under an Act of the Parliament of Canada or otherwise". [Emphasis is added.]
And at page 1065 Chief Justice Laskin stated that:
Jurisdiction under s. 23 follows if the claim for relief is under existing federal law, it does not precede the determination of that question.
We agree with the learned Trial Judge [p. 436] that "Be it in contract or otherwise, it is clear to me that the claim for relief in this action is not one sought under specific federal legislation."
It was the appellants' contention that the Trial Judge erred in this conclusion and that the Rail way Act, R.S.C. 1970, c. R-2 provides the statu tory source for their claim for relief. Both refer to a number of sections as supportive of their respec tive contentions.
The definition of "company" contained in sec tion 2, in the context of this action, means "rail- way company" and as previously indicated, Trailer Train Company is not a "railway company" within this definition.
' 23. The Trial Division has concurrent original jurisdiction as well between subject and subject as otherwise, in all cases in which a claim for relief is made or a remedy is sought under an Act of the Parliament of Canada or otherwise in relation to any matter coming within any following class of subjects, namely bills of exchange and promissory notes where the Crown is a party to the proceedings, aeronautics, and works and undertak ings connecting a province with any other province or extending beyond the limits of a province, except to the extent that jurisdiction has been otherwise specially assigned.
Sections 262, 263 and 265 require a railway company, which term would include the respond ent, to provide accommodation for traffic and interchange facilities with connecting lines. Sec tion 288 prohibits a railway company from pre venting the carriage of goods from the place of shipment to the place of destination.
The appellants point out that while these sec tions do not specify the means by which the rail way companies furnish equipment and provide facilities, they do provide sanctions for their fail ure to do so by empowering the Canadian Trans port Commission to make directory orders. As a result, as pointed out in the statement of claim, the railway companies comply with the statutory requirements by allocating the burden of furnish ing a portion of the equipment to be provided for each model year among those railway companies engaged in the Auto Trade from the point of origin to the ultimate destination. In the TOFC-COFC traffic there is no such pooling of equipment but equipment moves from one railway interconnect ing with another as required by section 288.
Section 274 refers to the "tariffs of tolls" that a company is authorized to issue under the Act. It is not alleged that there is any applicable tariff in this case.
Counsel for the appellants submitted that not only because of the mandatory requirements of the Railway Act generally to provide the interconnect ing services to which we have just referred, which at least by inference recognizes the right to be compensated for equipment, facilities and services, claims for tolls may be enforced in the Trial Division of this Court by virtue of section 301 and the definition of "Court" set forth in section 2(1).
301. In case of refusal or neglect of payment on demand of any lawful tolls, or any part thereof, the tolls are recoverable in any court of competent jurisdiction.
2. (1) ...
"court" means a superior court of the province or district, and, when used with respect to any proceedings for
•
(a) the ascertainment or payment, either to the person entitled, or into court, of compensation for lands taken, or for the exercise of powers conferred by this Act, or
(b) the delivery of possession of lands, or the putting down of resistance to the exercise of powers, after compensation paid or tendered,
includes the county court of the county where the lands lie; and "county court" and "superior court" are to be inter preted according to the Interpretation Act;
Respondent's counsel on the other hand, said that for section 301 to apply the "lawful tolls" in question must be tolls of a railway company authorized under the Railway Act. Subsection 269(4) which reads as follows:
269. .. .
(4) Except as otherwise authorized by this Act, the company shall not charge any tolls except tolls specified in a tariff that has been filed with the Commission and is in effect.
clearly provides, in his submission, that for tolls to be lawful they must be "specified in a tariff that has been filed with the Commission and is in effect." That there are no such tariffs applicable to the Trailer Train Company charges is, as we understand it, common ground.
The sole question, it seems to us, is whether or not the relief sought by the appellants herein is found under the only applicable existing federal law, in this case, the Railway Act. This is the first of the two tests that must be satisfied, on the au thority of the Quebec North Shore 2 case, to ascer tain the jurisdiction of the Trial Division under section 23 of the Federal Court Act.
It is our view that there is nothing in the Rail way Act or any other existing federal law to which we have been referred, which gives a railway com pany a right of action against another railway company to recover allegedly unpaid, unauthorized
z Since that decision was handed down, but since the decision of the Trial Division was rendered, the Supreme Court of Canada again dealt with the question of the jurisdiction of this Court in McNamara Construction (Western) Ltd. v. The Queen [1977] 2 S.C.R. 654 and reiterated that the jurisdiction in this Court to try an action must be based on a cause of action found in existing federal law.
tolls for the use of equipment. That equipment was acquired by the appellants as appears clearly from the pleadings, pursuant to a private arrangement between them and the Trailer Train Company which, as above stated, is not a railway company as defined by the Railway Act. That this is a private arrangement is seen by the fact that the appellants are suing for the difference between the Trailer Train Company rates as at a specified date or dates and the rates which that non-operating company saw fit to charge at later dates. Those rates were set entirely by private agreement or arrangement independent of any authority ema nating from the Railway Act. Any liability for payment thereof, flows not from the statute but from the private agreement or arrangement be tween the parties. As a result, we agree with the learned Trial Judge that the Trial Division is without jurisdiction to adjudicate the claims. Accordingly, the appeal should be dismissed.
In light of this disposition of the appeal, it will be unnecessary for us to deal with the issue raised by the parties as to whether or not the Federal Court of Canada is a court of competent jurisdic tion within the meaning of sections 2 and 301 of the Railway Act.
* * *
MACKAY D.J.: I concur.
* *
KERR D.J.: I concur.
 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.