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A-879-77
Corporation of the City of Windsor, Robert Fran- cis Girard, Gordon Henderson and James Bricker (Applicants) (Appellants)
v.
Canadian Transport Commission (Railway Trans port Committee) (Respondent)
Court of Appeal, Urie and Ryan JJ. and Kelly D.J.—Toronto, June 12, 13 and 14, 1979.
Practice — Appeals rendered academic by decision made by Railway Transport Committee of Canadian Transport Com mission following completion of the very hearings appellants asked Trial Division to prohibit — Trial Division's refusal led to these appeals — Dismissal by this Court for leave to appeal on merits is a decision of the Court — Rule 1103(3) does not provide the Court with the requisite authority to rehear the application after the decision was rendered — Federal Court Rule 1103(3).
APPEAL. COUNSEL:
R. Rolls, Q.C. and R. G. Colantti for
applicants.
No one appearing for respondent.
N. A. Chalmers, Q.C. for Canadian Pacific
Limited.
SOLICITORS:
Fasken & Calvin, Toronto, for applicants.
Miss D. Silverstone, c/o Canadian Transport Commission, Ottawa, for respondent.
N. A. Chalmers, Q. C., Toronto, for Canadian Pacific Limited.
The following are the reasons for judgment of the Court delivered orally in English by
URIE J.: This appeal and A-95-78 which were argued together and upon which counsel for the respondent did not appear and counsel for Canadi- an Pacific Limited was not called, will be dealt with herein together. Notwithstanding the ingeni ous arguments of counsel for the appellants both on the question of the right of the appellants, in
the circumstances, to continue the appeals and on the merits thereof, we are all of the opinion that they must be dismissed. In our view, both appeals were rendered academic by virtue of the decision of the Railway Transport Committee of the Canadian Transport Commission rendered on December 21, 1977, which decision was made following completion of the very hearings which the appellants asked the Trial Division to prohibit. The refusal of Mahoney J. and Cattanach J., to do so led to these appeals.
In so far as the appellants' application that we rehear the application for leave to appeal the April 21, 1977 decision, is concerned, we are all of the view that the dismissal by this Court of that application on its merits is a decision of the Court and that Rule 1103(3) does not, as asserted by appellants' counsel, provide us with the requisite authority to do so after that decision had been rendered.
We are further of the opinion that since the intervener, Canadian Pacific Limited, did not raise the question of the appeals having become aca demic until opening of argument of the appeal, it ought not to be entitled to its costs of the appeals.
Accordingly, the appeals will be dismissed with out costs.
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