National Aviation Consultants Limited (Appli-
cant)
v.
Starline Aviation Limited (Respondent)
Court of Appeal, Thurlow J., Bastin and Sweet
D.JJ.—Toronto, May 17 and 18, 1973.
Aeronautics—Judicial review—Grant of licence to operate
commercial air service—Opposition by competing carrier—
Proceedings before Air Transport Committee—Submissions
made in writing—No hearing—Appeal to Minister dis-
missed—Whether a denial of natural justice—National
Transportation Act, R.S.C. 1970, c. N-17, s. 25(1)—
Canadian Transport Commission General Rules Nos. 770,
775, 800, 810.
Applicant was licensed to operate a charter commercial
air service from Breslau, Ontario. In 1970, respondent
applied for a licence to operate a similar service. Applicant
intervened. The Air Transport Committee of the Canadian
Transport Commission denied the application. In November
1970 respondent applied to set aside the decision, alleging
inadequacies in applicant's service. Applicant filed a reply.
Subsequently, further submissions were filed by respondent
and further replies filed by applicant. Applicant did not
request a hearing. In February 1972 the Air Transport
Committee granted respondent the licence applied for.
Applicant appealed to the Minister under section 25(1) of
the National Transportation Act. The Minister dismissed
the appeal.
Held, an application by the applicant to set aside the
Minister's decision must be dismissed. The Minister did not
err in not reversing the Air Transport Committee's decision.
(1) There was new evidence before the Air Transport
Committee, as stated in the Minister's decision, which he
was entitled to take into consideration.
(2) The Air Transport Committee was not required to
hold a hearing or give applicant a further opportunity to
present evidence or argument in opposition to the grant of a
licence to respondent. Not only did applicant not raise this
as a ground of appeal as required by the Commission's rules,
but there was no statutory requirement and no principle of
natural justice that so required.
APPLICATION.
COUNSEL:
G. Brock and J. D. Coleman for applicant.
E. T. Nobbs, Q.C., and W. Clark for
respondent.
A. Garneau for Deputy Attorney General
of Canada.
SOLICITORS:
Brock and Coleman, Waterloo, for
applicant.
Nobbs and Clark, Toronto, for respondent.
THURLOW d. (orally)—This is an application
under section 28 of the Federal Court Act to
review and set aside a decision of the Minister
of Transport which dismissed an appeal brought
by the applicant under section 25(1) of the
National Transportation Act from decision
number 3319 of the Air Transport Committee of
the Canadian Transport Commission by which a
licence was granted to the respondent to operate
a charter commercial air service from a base at
Breslau, Ontario.
The applicant, which held a licence to operate
a similar service from the same base, had filed
an intervention in the proceedings before the
Air Transport Committee on the respondent's
application for a licence and by decision number
3044 dated October 7, 1970 the Committee had
denied the respondent's application. On the
same day, however, the Committee had imposed
on the applicant's licence certain conditions
relating to the maintenance of a base for its
operation under the licence at Breslau.
Thereafter, on November 12, 1970, the
respondent applied to the Canadian Transport
Commission under section 5 of the National
Transportation Act, section 52 of the Railway
Act and the General Rules of the Commission
made under the National Transportation Act to
review and reverse the denial by the Air Trans
port Committee of its application for a licence.
In its application for review the respondent
stated inter alia that since the making of the
orders of October 7, 1970, the main source of
business and main area of operation of the
applicant continued to be Toronto and St. Cath-
arines, that the applicant had not altered its
situation at Breslau and had continued to direct
its service to the Toronto-St. Catharines mar-
kets rather than the Kitchener-Waterloo market,
and that no one was providing the type of
service proposed by the respondent in the
Kitchener-Waterloo area. The application was
accompanied by an affidavit of the applicant's
solicitor stating that to the best of his knowl
edge and belief the facts contained in the
application were true and correct.
The applicant was served with a copy of these
documents and replied thereto in detail by a
letter dated November 24, 1970. In the letter,
which was largely argumentation, the applicant
challenged 'some of the assertions of the review
application, but did not deny some of the others.
On October 26, 1971, while the review
application was still pending the respondent
filed a supplementary submission stating that
substantial change had occurred since the filing
of the review application, that the applicant had
not based any aircraft at Breslau for several
months, had ceased maintaining an office or
staff at Breslau airport since October, no longer
maintained telephone service at the airport and
was not only no longer providing a service from
the Kitchener area but had made it impossible
for anyone to contact the applicant in that area.
The applicant filed a reply to this submission
dated December 10, 1971, by which it denied
the allegations made in the respondent's submis
sion, alleged a reorganization of its facilities
which commenced on November 17, 1971, and
asked that the denial of a licence to the respond
ent be confirmed. To this the respondent replied
by a letter from its solicitor dated December 13,
1971, which reviewed some of the facts already
mentioned and further disclosed the fact, which
is not disputed, that the applicant's licence had
been suspended by the Committee for 90 days
from November 23, 1971.
Neither in the applicant's intervention nor in
its letter replying to the review application nor
in its reply to the supplementary submission
was any request made for any further hearing.
Thereafter on February 24, 1972, the Air
Transport Committee issued its decision num
bered 3319 against which the applicant's appeal
to the Minister was later taken.
The decision read in part as follows:
AIR TRANSPORT COMMITTEE
February 24, 1972. DECISION NO. 3319
Ottawa
REVIEW of Decision No. 3044 dated October 7, 1970, of
the Air Transport Committee denying the application by
Starline Aviation Limited for authority to operate a Class
4 Group B Charter commercial air service and a Class 9-4
International Non-Scheduled Charter commercial air ser
vice from a base at Breslau, Ontario.
File No. 2-S515-1
Decision No. 3044 dated October 7, 1970, of the Air
Transport Committee, denied the application of Starline
Aviation Limited for a licence to operate the commercial air
services set out in the Title hereto, on the basis that Breslau
is a licensed base of the Waterloo-Wellington Flying Club
and National Aviation Consultants Limited from which both
are authorized to operate Class 4 services with Group B
aircraft.
On November 12, 1970, Starline Aviation Limited applied
to the Secretary of the Canadian Transport Commission for
a review of the said Decision on the grounds that new
evidence in support of the application was submitted to the
Committee.
The application for review was considered by the Review
Committee of the Canadian Transport Commission which
found that the application was reviewable and referred the
matter to the Air Transport Committee for its consideration.
The Committee has considered the Application for
Review and is satisfied that it would be in the public interest
to grant the application applied for. Decision No. 3044 dated
October 7, 1970, is therefore rescinded and the application
of Starline Aviation Limited for a licence to operate a Class
4 Group B Charter and a Class 9-4 International Non
Scheduled Charter commercial air services from a base at
Breslau, Ontario, is hereby approved. The Licensee is also
authorized to operate a Class 7 Specialty—Recreational
Flying—commercial air service from the same base.
The applicant's case, as I have understood it,
is that the Minister, whose decision is attacked,
erred in law in not reversing the Committee's
decision because (1) there was in fact no new
evidence as recited in the Committee's decision
and (2) because the Air Transport Committee
after referral of the review application to it by
the Review Committee did not hold a hearing or
give the applicant a further opportunity to
present evidence and argument in opposition to
the grant of a licence to the respondent.
As to the first of these points, I think it is
apparent from the sketch I have given of the
facts that there was material before the Com
mission relating to matters occurring after the
making of Air Transport Committee decision
number 3044 which was not denied and which
the Committees of the Commission were en
titled to take into consideration in reaching their
conclusions and that such material constituted
new evidence as referred to in Air Transport
Committee decision number 3319.
Turning to the second point it is to be
observed first that nowhere in the applicant's
notice of appeal to the Minister is the point
taken as a ground of appeal and in such circum
stances I do not think it can now be said that the
Minister erred in law in not having decided the
appeal upon a point which had not been raised.
The appeal to the Minister is governed by Rules
made by the Commission pursuant to section
25(4) of the National Transportation Act which
required that the notice of appeal set out the
grounds of the appeal. Vide Rules 800 and 810
which read:
800 An appeal to the Minister shall be instituted by serving
the Minister, the Secretary and, where applicable, the appli
cant, respondent and interveners by registered mail with a
notice of appeal.
810 A notice of appeal to the Minister shall set out
(a) the matter appealed against;
(b) the grounds of appeal; and
(c) the relief sought.
Regardless of this, however, no statutory
provision or Rule of the Commission was cited
as a basis for the alleged right of the applicant
to a further hearing. The Rules applicable to
review applications are Rules 770 and 775 as
substituted by General Order 1970-5. They pro
vide that:
770 Notwithstanding anything in these rules:
(a) subject to paragraph (c), the Review Committee shall
perform all functions and exercise all powers of the
Commission in respect of any application to review an
order or a decision of a committee pursuant to section 52
of the Railway Act, and for these purposes three members
of the Review Committee shall form a quorum;
(b) any such application shall be filed with the Secretary
within 30 days after the order or decision is communicat
ed to the parties unless the Review Committee enlarges
the time for the making thereof; and
(c) the Review Committee shall determine whether the
order or decision should be reviewed and may then, in its
discretion, either dispose of the application or refer it for
review to the committee that had made or issued such
order or decision.
775 Rule 770, so far as is not inconsistent therewith, applies
in respect of any reference, opinion or direction for review
given pursuant to any provisions of the National Transporta
tion Act or the Railway Act.
Nothing in these Rules appears to me to
require a further hearing by a committee to
whom a review application is referred pursuant
to Rule 770(c) and in my opinion there was no
legal requirement under the National Transpor
tation Act or the Rules of the Commission that
the Air Transport Committee afford the appli
cant any further hearing or opportunity to offer
evidence or argument before proceeding to
reconsider the application in the light of the
material before it including the replies filed by
the applicant to both the review application and
the supplementary submission. Nor is there any
principle of natural justice which would require
that the applicant be afforded any such further
opportunity to be heard.
As neither of the two matters upon which the
applicant relied appears to me to be well found
ed, it follows, in my opinion, that the attack on
the Minister's decision on the basis of his
having failed to give effect to them cannot suc
ceed but I should not part with the matter
without observing that regardless of what had
transpired earlier the applicant had and availed
itself of the opportunity to put before the Minis
ter on its appeal the matters which counsel now
says the applicant ought to have had a further
opportunity to put before the Air Transport
Committee on the review. It is apparent, how
ever, that such matters coupled with what the
applicant had put before the Commission were
not sufficient to persuade the Minister that the
decision should be reversed and in my opinion
there is no basis for a conclusion that the Minis
ter in dealing with the applicant's appeal did not
consider all the material that was put before him
by both parties or that he erred in law in reach
ing his conclusion.
I would dismiss the application.
* * *
BASTIN and SWEET D.JJ. concurred.
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.