Wardair Canada Limited (Applicant)
v.
Canadian Transport Commission (Respondent)
Trial Division, Walsh J.—Ottawa, May 25 and
28, 1973.
Jurisdiction—Prohibition—Tribunal refusing adjournment
of hearing—Application for judicial review by Court of
Appeal—Prohibition to Tribunal refused pending judicial
review—Federal Court Act, s. 28(3).
On May 23, 1973, the Review Committee of the Canadian
Transport Commission refused to adjourn a hearing of
Ontario Worldair Ltd.'s application for a licence. On the
same day Wardair Canada Ltd. commenced proceedings in
the Federal Court of Appeal to set aside that decision and
the matter was set down for hearing on June 14. On May 24
the Review Committee again refused to adjourn the hearing
of Ontario Worldair Ltd.'s application. Wardair Canada Ltd.
applied for a writ of prohibition.
Held, prohibition did not lie. The Review Committee had
jurisdiction in the matter and neither bias nor a breach of
natural justice had been shown.
APPLICATION.
COUNSEL:
W. A. McGillivray, Q.C., and L. R. Duncan
for Wardair Canada Ltd.
P. Wallis and G. W. Nadeau for Canadian
Transport Commission.
J. E. Smith for Attorney General of
Canada.
B. A. Crane for Air Canada.
J. B. Hamilton, Q.C., for C.P. Air Limited.
M. Rothstein for Transair Limited.
G. Gould, Q.C., for Quebecair Limited.
J. L. Jaskula for Ontario Worldair Limited.
D. W. Burtnick for the Ministry of Trans
portation and Communications of Ontario.
E. T. Nobbs, Q.C., for Nordair Limited.
SOLICITORS:
Fenerty and McGillivray & Co., Calgary,
for Wardair Canada Ltd.
G. W. Nadeau, Ottawa, for Canadian
Transport Commission.
Deputy Attorney General of Canada for
Attorney General of Canada.
Gowling and Henderson, Ottawa, for Air
Canada.
J. B. Hamilton, Toronto, for C.P. Air
Limited.
Aikins, MacAulay and Thorvaldson, Win-
nipeg, for Transair Limited.
G. Gould, Montreal, for Quebecair Limited.
J. L. Jaskula, Hamilton, for Ontario World-
air Limited.
D. W. Burtnick, Downsview, for the Minis
try of Transportation and Communications of
Ontario.
E. T. Nobbs, Toronto, for Nordair Limited.
WALSH J.—This application for a writ of
prohibition and such further and other relief as
might seem just to prohibit the Review Commit
tee of the National Transport Commission from
proceeding with the hearing for the review of
the application of Ontario Worldair Limited
until such time as the appeal and application of
Wardair Canada Limited as directed to be heard
by the Honourable Chief Justice Jackett on June
14, 1973 shall be determined by the Federal
Court of Appeal came on for hearing before me
at 4 p.m. on the afternoon of May 25, 1973. In
addition to counsel for applicant and for
respondent, counsel representing the Attorney
General of Canada, Air Canada, Canadian Pacif
ic Air Lines, Limited, Transair Ltd., Quebecair,
Ontario Worldair Ltd., and the Ministry of
Transportation and Communications of Ontario
appeared and were heard on the application.
On May 23, 1973 the Review Committee of
the Canadian Transport Commission refused to
grant an adjournment of a hearing fixed for that
date to consider the application of Ontario
Worldair Ltd. for a licence. As a result of this,
on the same day the present applicant, Wardair
Canada Limited, commenced section 28 pro
ceedings in the Federal Court of Appeal seeking
to have it review and set aside the decision or
order of the Review Committee refusing the
said application of Wardair Canada Limited for
an adjournment. On May 24, 1973 applicant
also appealed this decision and by leave of the
Honourable Chief Justice Jackett a notice of
appeal was filed on behalf of Wardair Canada
Limited on May 25, 1973 and by order of the
Honourable Chief Justice the notice of motion
pursuant to section 28 of the Federal Court Act
and the appeal were combined in one action and
an order was made directing the hearing of the
appeal before the Federal Court of Appeal on
June 14, 1973.
Following this, the Review Committee of the
Canadian Transport Commission convened on
May 24, 1973 at 2 p.m. and again on May 25,
1973 at 10 a.m. and heard submissions of coun
sel in which applicant supported by an applica
tion made on behalf of Canadian Pacific Air,
Limited, again sought an adjournment pending
the decision of the Federal Court of Appeal
following the hearing to be held on June 14,
1973. After hearing arguments of counsel in
favour of and against the adjournment, the
Review Committee again refused to adjourn the
hearing and as a result of this the present pro
ceedings by way of writ of prohibition were
brought. While counsel for applicant conceded
that by virtue of section 28(3) of the Federal
Court Act the Trial Division would have no
jurisdiction to grant a writ of prohibition if the
Court of Appeal has jurisdiction to hear and
determine an application to review and set aside
the decision or order complained of, it was
contended that while an application under sec
tion 28 has been brought against the original
decision -of May 23, 1973, refusing to grant an
adjournment of the hearing and that this
application together with the appeal has been
fixed for hearing by the Court of Appeal on
June 14, 1973, the decision of May 25, 1973
again refusing to adjourn the hearing until judg
ment has been rendered on this section 28
application and the appeal heard simultaneously
with same was a new and different decision and
that it is not subject to review under section 28
and that therefore the Trial Division has juris
diction to grant a writ of prohibition. It was
contended that it would not be in the interests
of justice to allow the hearing before the
Review Committee to proceed while the very
decision of the Committee to proceed with it is
under litigation before the Court of Appeal as,
in the event that the section 28 application or
appeal should be maintained, all the evidence
taken and everything done in the interval would
not only have been useless but would even be
deemed to have been improperly heard and
done, including any decision which the Review
Committee might make as a result of such evi
dence and hearing. It was also argued that this
was the only remedy possible to prevent the
hearing from proceeding (with the possible
exception of the alternative remedy of injunc
tion which would, however, also be subject to
the same prohibition against being heard by the
Trial Division by virtue of section 28(3) if that
section applies) since there is no provision in
the Act or the Rules for a stay of proceedings
pending an appeal. Rule 1213 providing for the
stay of execution of a judgment appealed
against appears in Division B of the Rules
headed "Appeals from Trial Division" and there
is no similar Rule in Division C headed
"Appeals from Tribunals or Authorities other
than the Trial Division", or Division D headed
"Application to Set Aside Decisions of Federal
Boards, Commissions and other Tribunals".
Section 50(1)(b) of the Act reads as follows:
50. (1) The Court may, in its discretion, stay proceedings
in any cause or matter,
(b) where for any other reason it is in the interest of
justice that the proceedings be stayed.
but it was common ground between counsel and
I agree that this section must only apply to stay
of proceedings in this Court and not to stay of
proceedings before another tribunal.
In the original application before the Review
Committee on May 23, it was allegedly argued
that the postponement should be granted
because in the transitional stage of the regula
tions respecting advanced booking charters it is
impossible for the applicant or others to reason
ably assess the market available for charter
operations and hence for applicant to properly
answer the application of Ontario Worldair Ltd.,
and further that since submissions would be
received and considered by the Air Transport
Committee, including the Review Committee, as
a result of a solicitation dated April 30, 1973
which would be material to the consideration of
the application and that Wardair Canada Lim
ited would have no opportunity to answer such
submissions or have access to same or to cross-
examine such submissions the adjournment
should therefore be granted. Against this it is
common ground that counsel for Ontario World-
air Ltd. and those opposing the application for
adjournment, including counsel for the Canadi-
an Transport Commission, for the Attorney
General of Canada and for the Ministry of
Transportation and Communications of Ontario,
stressed the urgency of proceeding with the
hearing in view of the approaching summer
travel season when charters have their max
imum use. The Review Committee accepted the
latter argument in refusing to grant the adjourn
ment and on May 25, 1973 when they again
considered the matter in the light of the now
pending section 28 application and appeal the
question of adjournment was again allegedly
fully argued by counsel for the respective par
ties and the Review Committee reaffirmed its
original decision not to grant an adjournment. I
have grave doubts as to whether either decision
is properly subject to a section 28 appeal. See
National Indian Brotherhood v. Juneau [No. 2]
[1971] F.C. 73 at p. 78 in which Chief Justice
Jackett stated:
I should have thought, however, that there is some doubt as
to whether those words—i.e., decision or order—apply to
the myriad of decisions or orders that the tribunal must
make in the course of the decision-making process. I have in
mind decisions such as
(b) decisions on requests for adjournments,
Any of such decisions may well be a part of the picture in an
attack made on the ultimate decision of the tribunal on the
ground that there was not a fair hearing. If, however, an
interested party has a right to come to this Court under s. 28
on the occasion of every such decision, it would seem that
an instrument for delay and frustration has been put in the
hands of parties who are reluctant to have a tribunal exer
cise its jurisdiction, which is quite inconsistent with the
spirit of s. 28(5).
And again at page 79:
I do not pretend to have formulated any view as to what
the words "decision or order" mean in the context of s.
28(1), but it does seem to me that what is meant is the
ultimate decision or order taken or made by the tribunal
under its statute and not the myriad of incidental orders or
decisions that must be made in the process of getting to the
ultimate disposition of a matter.
If this is so and no right of review exists, then
section 28(3) does not operate so as to prevent
the Trial Division from having jurisdiction by
way of writ of prohibition or injunction. How
ever, a section 28 application seeking a review
of the May 23 decision is already before the
Court of Appeal for immediate hearing on June
14 and if it should be found that a right to
review this decision does exist, then I do not
believe a real distinction exists between this
decision and the subsequent decision of May 25
again refusing the adjournment. While it is true
that this second application was based solely on
the grounds that the matter was now before the
Court of Appeal on a section 28 application and
the appeal, the resulting decision is still the
same, namely, to proceed with the hearing, and
if the first decision was subject to review then
the second decision to the same effect would
also be subject to the same right of review.
I do not need to base my finding, however, on
this somewhat tenuous ground of lack of juris
diction, since in any event I do not believe that
a writ of prohibition (nor the alternative remedy
suggested of an injunction) would lie in the
circumstances of this case. For a writ of prohi
bition to lie there has to be an indication of lack
of jurisdiction, bias, an error in law, or a breach
of natural justice in the finding of the tribunal
against which the prohibition is sought. In the
present case there was no suggestion that the
Review Committee did not have jurisdiction
when it made its decision nor that it showed
bias in making it. It was a decision which it was
legally entitled to make and I cannot find that a
decision to refuse to grant an adjournment, not
made in a capricious manner, but after hearing
full argument by counsel for all parties, consti
tutes a denial of natural justice to the applicant.
What the applicant is seeking to do is to use a
writ of prohibition to obtain a stay of execution
of a judgment which is under review and appeal
because there is no procedure in the Rules of
this Court for such a stay. The absence of such
Rule would not be sufficient ground for abusing
the use of a prerogative writ whether it be
prohibition or injunction. I might add that even
if a Rule permitting such a stay of execution did
exist, an order under such a Rule is always
subject to the discretion of the tribunal from
whom it is sought. There are cases when it
would evidently be very wrongful to proceed
with a hearing when the matter is under appeal
or review, such as when the very jurisdiction of
the inferior tribunal is attacked, but there are
also cases when it might be equally wrongful to
halt all proceedings in the inferior tribunal every
time an appeal is brought or a review sought of
some incidental decision during the course of
the proceedings before such inferior tribunal. If
this were done proceedings might be halted
almost indefinitely by a series of appeals from
minor decisions to the great prejudice of the
parties wishing to proceed with the hearing. It is
always a matter of discretion therefore whether
a hearing should be suspended or not. While I
am not called upon here to decide nor indeed
was the matter argued before me, whether the
Review Committee exercised its discretion
properly in deciding to continue with the hear
ing notwithstanding the pending review and
appeal of its earlier decision to continue with
same, it appears to me that this was a matter
within its discretion, and the exercise of this
discretion cannot be proper matter for the issue
of a writ of prohibition against it. Application is
therefore dismissed, with costs.
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.