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A-573-79
Air Canada and C.P. Air (Appellants)
v.
Wardair Canada (1975) Ltd. (Respondent)
Court of Appeal, Heald, Urie and Ryan JJ.— Ottawa, October 29 and November 2, 1979.
Aeronautics — Appeal from decision of Review Committee of Canadian Transport Commission reversing Transport Com mittee's decision and granting respondent's application for consolidation of certain advance booking charter flights pur suant to Air Carrier Regulations, s. 43.37 — Whether or not the appeal has become academic because all flights that were the subject matter of the Review Committee's decision had been completed so that this Court's judgment would be nuga- tory — Air Carrier Regulations, SOR/72-145 (as amended by SOR/79-19), s. 43.37.
International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders' Exchange [1967] S.C.R. 628, referred to. Canadian Cablesystems (Ontario) Ltd. v. Consumers' Association of Canada [1977] 2 S.C.R. 740, referred to. Minister of Manpower and Immi gration v. Hardayal [1978] 1 S.C.R. 470, referred to.
APPEAL. COUNSEL:
C. K. Irving for appellant Air Canada.
J. Hamilton, Q.C. for appellant C.P. Air.
F. Lemieux for respondent.
G. W. Nadeau for Canadian Transport Commission.
SOLICITORS:
Courtois, Clarkson, Parsons & Tétrault, Montreal, for appellant Air Canada.
Hamilton, Torrance, Stinson, Campbell, Nobbs & Woods, Toronto, for appellant C.P. Air.
Herridge, Tolmie, Ottawa, for respondent. Campbell, Pepper, Laffoley, Legault & Longtin, Montreal, for British Airways Board.
The following are the reasons for judgment of the Court rendered in English by
URIE J.: This is an appeal brought pursuant to leave granted under section 64(2) of the National Transportation Act, R.S.C. 1970, c. N-17, from a decision of the Review Committee of the Canadian
Transport Commission dated July 27, 1979. By that decision the Review Committee reversed a decision of the Air Transport Committee of the Commission and granted the respondent's applica tion for the consolidation of certain advance book ing charter flights pursuant to section 43.37 of the Air Carrier Regulations, SOR/72-145 as amend ed by SOR/79-19.
At the outset of the appeal the Court raised with counsel the question as to whether or not the appeal had become academic by virtue of the fact that all of the flights which were the subject matter of the Review Committee's decision had been completed so that a judgment of this Court would be nugatory. Counsel for the appellants argued vigorously, supported by counsel for the respondent, that since authorization for advance booking charter flights is rarely given by the Com mission more than six months in advance of the flights, the review and appeal provisions of the National Transportation Act and the time delays occasioned thereby are such that no effective remedy could ever be available to an aggrieved party if the normal, well-settled rules applicable to appeals which have become academic or in which there is no longer any lis between the parties, were to be applied.
In seeking an exception from what was conceded to be the normal rule', counsel relied heavily on International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders' Exchange 2 . Reliance was also placed on the recent decision of Minister of Manpower and Immigra tion v. Hardayal. 3
The problem exposed in this appeal, counsel said, was an on-going one in that applications for consolidation of advance booking charters are being processed by the Commission regularly and it is important to the airlines and the public at large that the Commission correctly interprets and applies the Act and the Regulations. This fact, combined with the difficulty in ever getting the matter before this Court before the charter flights in question have been completed makes it impera tive, in their view, that the appeal fall within the
E.g. Canadian Cablesystems (Ontario) Limited v. Consum ers' Association of Canada [1977] 2 S.C.R. 740.
2 [1967] S.C.R. 628.
3 [1978] 1 S.C.R. 470 at 474-477.
principle enunciated by Cartwright J., as he then was, in the Winnipeg Builders' Exchange case.
Without, for the moment, discussing the merits of these submissions, the Court is faced with even a more formidable problem. Section 64(2) of the National Transportation Act authorizes an appeal to this Court upon a question of law or jurisdic tion, leave having been granted to do so. Section 64(5) spells out the powers of the Court. It reads as follows:
64....
(5) On the hearing of any appeal, the Court may draw all such inferences as are not inconsistent with the facts expressly found by the Commission, and are necessary for determining the question of jurisdiction, or law, as the case may be, and shall certify its opinion to the Commission, and the Commission shall make an order in accordance with such opinion.
It will be seen that this Court must certify its opinion to the Commission and "the Commission shall make an order in accordance with such opin ion". If the Court were to certify to the Commis sion in this case that the Review Committee erred in its interpretation of section 43.37 of the Air Carrier Regulations, what order could the Com mission make to rectify the error in view of the fact that all charter flights affected by that deci sion have been completed? We are all of the opinion that it could make no effective order and thus could not comply with the mandatory provi sions of the Act. The result would be that the Court would be in the position of giving an opin ion, the effect of which would be advisory only and, clearly, that is not what the Act contem plates. For this very practical reason, as well as for the generally accepted principle that it is not the function of courts of appeal to render judgments which are, in effect, opinions or are advisory in nature, we are of the view that the appeal herein has been rendered academic. We ought not, there fore, to render any opinion on or dispose of the appeal, on its merits.
Accordingly, the appeal will be dismissed with costs.
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HEALD J.: I agree.
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RYAN J.: I concur.
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