A-538-78
Attorney General of Newfoundland for and on
behalf of the Queen in right of the Province of
Newfoundland (Appellant)
v.
Canadian National Railway Company (Respond-
ent)
Court of Appeal, Jackett C.J., Heald and Ryan
JJ.—Ottawa, October 27, 1978.
Jurisdiction — Appeal from decision of Motor Vehicle
Transport Committee dismissing application for order —
Order sought to suspend rate increase that would be effected
during period that must elapse before Commission can decide
whether or not to disallow tariff — Whether or not the
Commission has the power to grant the order sought —
National Transportation Act, R.S.C. 1970, c. N-17, s. 40(1),
(3).
This is an appeal from a decision of the Motor Vehicle
Transport Committee of the Canadian Transport Commission
dismissing appellant's application for an order that would have
the effect of deferring for a fixed period the effective date of a
tariff filed by respondent under section 40 of the National
Transportation Act in respect of its Roadcruiser Bus Opera
tions in Newfoundland. The application is, in effect, for an
order suspending the increase in rates that would be effected,
during a period that must elapse before the Commission can
reach a decision whether or not to disallow the tariff so that, if
it is found that the proposed increase should be disallowed, such
decision will have had full effect. The sole question involved is
whether the Commission has the power to grant the order
sought.
Held, the appeal is allowed. If the Board cannot make an
order suspending the proposed tariff for the purposes for which
it is sought, it cannot accomplish the same result for the same
purposes by amending a procedural order. The general power in
section 40(3) in the case of "disallowance" can only be exer
cised subject to the statutory conditions set out in paragraphs
(a) and (b). Prima facie, the word "disallowance" in this
context applies to any order, whether made before or after the
effective date of the tariff, whereby the tariff is made inopera
tive. That view, however, is subject to at least one qualifica-
tion—that an order providing that a tariff is inoperative for a
period after filing is not such a disallowance. It is also subject
to the qualification that it does not apply to an order, whether
made before or after the effective date of the tariff, suspending
the operation of the tariff for what is, in the Commission's
opinion, a bona fide reason related to proceedings leading to a
possible "disallowance".
APPEAL.
COUNSEL:
O. Noel Clarke for appellant.
H. J. G. Pye, Q. C., for respondent.
G. W. Nadeau for Canadian Transport
Commission.
SOLICITORS:
Martin, Easton, Woolridge & Poole, Corner
Brook, for appellant.
Law Department, Canadian National Rail
way Company, Montreal, for respondent.
Law Department, Canadian Transport Com
mission, Ottawa, for Canadian Transport
Commission.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an appeal from a decision
of the Motor Vehicle Transport Committee of the
Canadian Transport Commission dismissing an
application of the appellant for an order that
would have the effect of deferring for a fixed
period the effective date of a tariff filed by
Canadian National Railway Company (herein-
after called the "respondent") under section 40 of
the National Transportation Act, R.S.C. 1970, c.
N-17', in respect of its Roadcruiser Bus Opera
tions in the Province of Newfoundland. The sole
question involved is whether the Commission has
' Section 40, which is in Part III of the Act, reads, in part, as
follows:
40. (1) A person operating a motor vehicle undertaking to
which this Part applies shall not charge any tolls except tolls
specified in a tariff that has been filed with the Commission
and is in effect.
(3) The Commission may make orders with respect to all
matters relating to traffic, tolls and tariffs of a motor vehicle
undertaking to which this Part applies, and may disallow any
tariff of tolls, or any portion thereof,
(a) that the Commission considers to be not compensatory
and not justified by the public interest; or
(b) where there is no alternative, effective and competitive
service by a common carrier other than another motor
vehicle carrier or a combination of motor vehicle carriers,
that the Commission considers to be a tariff that unduly
takes advantage of a monopoly situation favouring motor
vehicle carriers;
and may require the person operating the motor vehicle
undertaking to substitute a tariff of tolls satisfactory to the
Commission in lieu thereof, or the Commission may pre
scribe other tariffs in lieu of the tariff or portion thereof so
disallowed.
power to grant the order sought.
The tariff in question was treated as governed
by an order made under section 40(3) with refer
ence to the bus operations in question by virtue of
which it is to "come into effect on the date stated
in the tariff which shall be at least 90 days after
the date of filing". That date is November 1, 1978.
The application to defer the coming into effect
of the tariff is, in effect, an application for an
order suspending the increase in rates that would
be effected thereby, during a period that must
elapse before the Commission can reach a decision
whether or not to disallow the tariff so that, if it is
found that the proposed increase should be disal
lowed, such decision will have had full effect.
While the application is, in terms, made in the
alternative
(a) for a straightforward order that the pro
posed effective date be postponed or suspended,
or
(b) for an amendment to the order already
referred to that governs the coming into effect of
such a tariff,
in my view, the Board's power to suspend the
increase in rates does not depend on how it might
frame an order for that purpose. In other words, if
it cannot make an order suspending the proposed
tariff for the purposes for which it is sought, it
cannot accomplish the same result for the same
purposes by amending a procedural order.
Reading the first part of section 40(3), it would
seem that the Commission has an unfettered
power to make orders "with respect to all matters
relating to ... tariffs of a motor vehicle undertak
ing" to which Part III applies. However, this
general power must, in my view, be read subject to
the fact that the latter part of subsection 40(3)
confers a specific power to "disallow any tariff"
conditioned on what is set out in paragraph (a) or
(b) thereof. It follows, in my view, that the general
power in the case of "disallowance" can only be
exercised subject to such statutory conditions.
The question to be considered, therefore, in my
opinion, is whether the suspension sought is a
"disallowance" within the meaning of that word in
section 40(3).
Prima facie, the word "disallowance" in this
context, as I understand it, applies to any order,
whether made before or after the effective date of
the tariff, whereby the tariff is made inoperative.
However, that view is subject to at least one
qualification, namely, that an order providing that
a tariff is inoperative for a period after filing is not
such a disallowance. With some hesitation, I have
come to the conclusion that it is also subject to the
qualification that it does not apply to an order,
whether made before or after the effective date of
the tariff, suspending the operation of the tariff for
what is, in the opinion of the Commission, a bona
fide reason related to proceedings leading to a
possible "disallowance".
I am of opinion that the appeal should be
allowed and an opinion certified to the Commis
sion accordingly.
* * *
HEALD J. concurred.
* * *
RYAN J. 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.