A-937-85
Canadian Pacific Limited (Appellant) (Appli-
cant)
v.
Canadian Transport Commission (Respondent)
A-938-85
Canadian National Railway Company (Appellant)
(Applicant)
v.
Canadian Transport Commission (Respondent)
INDEXED AS: CANADIAN NATIONAL RAILWAY CO. Y. CANADIAN
TRANSPORT COMMISSION (CA.)
Court of Appeal, Urie, Hugessen and MacGuigan
JJ.—Winnipeg, June 17, 1986.
Federal Court jurisdiction — Trial Division — Trial Divi
sion without jurisdiction to entertain applications for prohibi
tion and certiorari by CN and CP against Canadian Transport
Commission decision dismissing motions by CN and CP to
strike out applications by City of Regina under Railway
Relocation and Crossing Act — S. 29 Federal Court Act
depriving Trial Division of jurisdiction, s. 64(2) National
Transportation Act providing for appeal to Court of Appeal on
"question of law or jurisdiction" — Inappropriate to apply to
s. 64(2) criteria defining which type of "decision or order"
subject to judicial review — S. 64(2) focussing on "question of
law or jurisdiction", not on `decision or order" — S. 64(2)
appeal subject to leave — Application for leave assuring Court
of seriousness of issue and permitting Court to impose terms
to expedite appeal, to delay it until matter settled before
Commission, to allow Commission hearing to continue concur
rently with appeal or otherwise to ensure justice be done —
Emphasis of s. 64 on "question" reinforced by s. 64(5) require
ment Court certify its opinion to Commission — Appeal
dismissed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, ss. 28, 29 — National Transportation Act, R.S.C. 1970, c.
N-17, s. 64(2) (as am. by R.S.C. 1970 (2nd Supp.), c. 10, s.
65), (5) (as am. idem) — Railway Relocation and Crossing
Act, S.C. 1974, c. 12.
Transportation — Canadian Transport Commission dis
missing motions by CN and CP to strike out applications by
City of Regina under Railway Relocation and Crossing Act —
Trial Division rejecting applications for prohibition and cer-
tiorari against Commission's decision — Trial Division with
out jurisdiction to entertain applications in view of s. 64(2)
National Transportation Act — S. 64(2) providing for appeal
to Federal Court of Appeal on "question of law or jurisdic
tion" upon leave being obtained — National Transportation
Act, R.S.C. 1970, c. N-17, s. 64(2) (as am. by R.S.C. 1970
(2nd Supp.), c. 10, s. 65), (5) (as am. idem) — Railway
Relocation and Crossing Act, S.C. 1974, c. 12.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Canadian National Railway Co. v. Canadian Transport
Commission, [1982] 1 F.C. 458 (C.A.).
CONSIDERED:
Anti-dumping Act (In re) and in re Danmor Shoe Co.
Ltd., [1974] 1 F.C. 22 (C.A.).
REFERRED TO:
Attorney General of Canada (The) v. Cylien, [1973] F.C.
1166 (C.A.); British Columbia Packers Ltd. v. Canada
Labour Relations Board, [1973] F.C. 1194 (C.A.).
COUNSEL:
Winston F. Smith and A. Ludkiewicz for
appellant (applicant) Canadian Pacific Lim
ited.
G. H. Nerbas and Terrance Hall for appellant
(applicant) Canadian National Railway Com
pany.
M. Rothstein, Q.C. and M. Monnin for City
of Regina.
P. Noonan for respondent.
SOLICITORS:
Winston F. Smith and A. Ludkiêwicz, Win-
nipeg, for appellant (applicant) Canadian
Pacific Limited.
G. H. Nerbas and Terrance Hall, Winnipeg,
for appellant (applicant) Canadian National
Railway Company.
Aikins, MacAulay, Winnipeg, for City of
Regina.
Canadian Transport Commission Legal Ser
vices, Ottawa, for respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
HUGESSEN J.: These are appeals from two deci
sions of Pinard J. [Canadian National Railway
Co. v. Canadian Transport Commission,
T-842-85; Canadian Pacific Ltd. v. Canadian
Transport Commission, T-603-85, order dated
November 22, 1985, not yet reported] dismissing
applications for prohibition and certiorari directed
against a decision of the Canadian Transport
Commission; that decision in its turn had rejected
motions brought by the appellants, Canadian Na
tional Railway Company and Canadian Pacific
Limited, to strike out applications made to the
Commission by the City of Regina pursuant to the
Railway Relocation and Crossing Act (S.C. 1974,
c. 12) on the grounds that the Commission lacked
the jurisdiction to receive them in the form in
which they had been filed. Pinard J. held that
section 29 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10] operated to deprive the Trial
Division of jurisdiction because, in his view, the
impugned decision could be appealed to this Court
under the provisions of section 64 of the National
Transportation Act (R.S.C. 1970, c. N-17). We
are all in agreement with that result.
Subsection 64(2) of the National Transporta
tion Act [as am. by R.S.C. 1970 (2nd Supp.), c.
10, s. 65] reads as follows:
64....
(2) An appeal lies from the Commission to the Federal Court
of Appeal upon a question of law, or a question of jurisdiction,
upon leave therefor being obtained from that Court upon
application made within one month after the making of the
order, decision, rule or regulation sought to be appealed from or
within such further time as a judge of that Court under special
circumstances allows, and upon notice to the parties and the
Commission, and upon hearing such of them as appear and
desire to be heard; and the costs of such application are in the
discretion of that Court.
In our opinion it would be wrong to apply to the
interpretation of this text the same criteria as have
been developed by this Court for the purposes of
determining what sorts of "decision or order" are
subject to being reviewed and set aside under
section 28 of the Federal Court Act. (See, for
example, Attorney General of Canada (The) v.
Cylien, [1973] F.C. 1166 (C.A.); British
Columbia Packers Ltd. v. Canada Labour Rela
tions Board, [1973] F.C. 1194 (C.A.); Anti-
dumping Act (In re) and in re Danmor Shoe Co.
Ltd., [1974] 1 F.C. 22 (C.A.).)
In the first place we note that the focus of
subsection 64(2), unlike that of section 28, is not
on the "decision or order" but, significantly, upon
"a question of law, or a question of jurisdiction".
Indeed the only reference to the "order, decision,
rule or regulation sought to be appealed from"
comes, almost incidentally, in that part of the text
dealing with the calculation of the time within
which leave to appeal must be sought.
Secondly, and most importantly in our view, is
the fact that an appeal under subsection 64(2) is
subject to leave being obtained from the Court. As
a result many of the policy concerns which were
expressed or implied in this Court's jurisprudence
under section 28 lose much of their force. An
example of such concerns is Danmor Shoe (supra)
where Jackett C.J. said (at pages 34-35):
On the other hand, a right, vested in a party who is reluctant to
have the tribunal finish its job, to have the Court review
separately each position taken, or ruling made, by a tribunal in
the course of a long hearing would, in effect, be a right vested
in such a party to frustrate the work of the tribunal. On
balance, it would seem that the object of section 28 is more
effectively achieved by leaving the right to invoke judicial
review to the stage after the tribunal has rendered its decision.
There will then have been no unnecessary delay in cases where
the tribunal has been guilty of no error in its intermediate
positions and rulings and, even when the tribunal has erred at
an intermediate stage, in the vast majority of cases, such errors
will not have affected the ultimate result in such a way as to
warrant invoking judicial review. Admitting that there may be
problems that should be solved judicially at an intermediate
stage, surely no party should have the right to decide whether a
situation has arisen in which that should be done. It is not
without interest, in this connection, that Parliament has given
the tribunal the necessary discretion to deal with such prob
lems. See section 28(4) of the Federal Court Act, which
authorizes a tribunal "at any stage of its proceedings" to refer
"any question or issue of law, of jurisdiction or of practice and
procedure" to the Court for "hearing and determination".
On an application for leave to appeal under
subsection 64(2) this Court can not only assure
itself that the appellant has a serious point to urge;
it can also, where appropriate, impose terms
designed, for example, to expedite the hearing of
the appeal, to delay it until the matter is finally
concluded before the Commission, to allow the
hearings before the Commission to continue con
currently with the appeal, or otherwise to ensure
that justice is done.
Finally we note that on an appeal under section
64 the Court does not review or set aside the
impugned decision; rather, under subsection 64(5)
[as am. idem] it must "certify its opinion to the
Commission" which must then make an order in
accordance therewith. This reinforces our view
that the emphasis of section 64 is on the "ques-
tion", be it of law or jurisdiction, rather than on
the technical vehicle by which the matter was
dealt with by the Commission.
Accordingly we conclude that the Trial Division
was without jurisdiction to entertain the applica
tions for prohibition and certiorari because the
impugned decision of the Commission, although
simply an interlocutory ruling, raised a question of
law or of jurisdiction which could properly have
been made the subject of an appeal to this Court
under subsection 64(2) of the National Transpor
tation Act. We recognize that in so holding we
have gone further than was explicitly decided by
this Court in Canadian National Railway Co. v.
Canadian Transport Commission, [1982] 1 F.C.
458 (C.A.) but the facts of that case did not
require the Court to consider the broader aspects
of the question which we decide today.
For these reasons the appeals will be dismissed.
Counsel may speak to the question of costs.
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