T-2354-79
Rudy Kiist and Donald Robertson on their own
behalf and on behalf of each and every other
holder of a permit book issued by The Canadian
Wheat Board pursuant to the provisions of section
19 of the Canadian Wheat Board Act, R.S.C.
1970, c. C-12 as amended, for the 1977-78 and
1978-79 crop years (Plaintiffs)
v.
Canadian Pacific Railway Company and Canadian
National Railway Company (Defendants)
and
The Canadian Wheat Board (Defendant without
liability)
Trial Division, Gibson J.—Toronto, October 11,
1979; Ottawa, February 11, 1980.
Practice — Motion to strike pleadings — Plaintiffs claim
damages based on breach of statutory duty — Whether plain
tiffs are "person's] aggrieved" — Whether plaintiffs are en
titled to bring a class action — Whether plaintiffs are entitled
to bring a derivative action against defendants — Whether the
Trial Division of the Federal Court of Canada has jurisdiction
in this matter — Application granted — Canadian Wheat
Board Act, R.S.C. 1970, c. C-12, ss. 16, 17, 18, 21, 25, 33, 34
— Railway Act, R.S.C. 1970, c. R-2, s. 262 — National
Transportation Act, R.S.C. 1970, c. N-17, ss. 55, 56, 58, 61,
64 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 23.
This is an application by the defendants for an order striking
out the statement of claim and dismissing the action on the
grounds that the Court is without jurisdiction to try the action;
that the statement of claim discloses no reasonable cause of
action; and that the action is not properly constituted as a class
action. The plaintiffs are grain producers, entitled to deliver
certain amounts of grain to the elevators, as prescribed by
permit books which are issued by The Canadian Wheat Board.
The plaintiffs claim damages based on an alleged breach by the
defendant railways of a statutory obligation to supply adequate
railway box cars to transport the excess grain produced by the
plaintiffs, but not authorized for delivery by The Canadian
Wheat Board, to ports. The issues raised are as follows: wheth
er or not the plaintiffs are "person[s] aggrieved" within the
meaning of section 262(7) of the Railway Act; whether or not
the plaintiffs are entitled to bring a class action; whether or not
the plaintiffs have a right to bring a derivative action against
the defendant railways; whether or not the plaintiffs have a
cause of action against The Canadian Wheat Board and wheth-
er or not the Trial Division of the Federal Court of Canada has
jurisdiction in this matter.
Held, the application is granted. By the enactment of section
262(7) of the Railway Act, in case of non-compliance, every
"aggrieved person" within the statutory meaning of these words
has a right to complain. A person usually is not considered
"aggrieved" within that section unless he himself can establish
he suffered particular loss and not merely because he has a
grievance. This rigid test of locus standi has been departed
from in certain situations and those situations appear to be
confined to actions against public authorities exercising statu
tory powers. The remedies are by way of certiorari, mandamus
and prohibition. These remedies are not available against non-
public authorities exercising non-statutory powers, and there
fore are not available against the defendant railways. While the
plaintiff producers and The Canadian Wheat Board in matters
that affect producers may have an "identity of interest", it is
not a "legal fiction" that the grain produced and originally
owned by the plaintiffs which was offered the railways for
carriage was the grain of The Canadian Wheat Board. In law it
was. And as to the so-called "excess" grain produced during the
relevant years by the plaintiff producers but not authorized by
"permits" to be delivered, such grain in fact was not delivered
(the statutory prohibition to the railways to accept it being
adhered to), and therefore in any event no duty arose as a
common carrier on the part of the railway under section 262 of
the Railway Act. There was therefore no contract express or
implied between the plaintiffs and the defendant railways by
which a right to demand might be inferred and there was no
statutory right to demand that the defendant railways accept
delivery of this so-called "excess" grain, not authorized for
delivery by "permits"; and further there was in fact no demand;
and as a consequence therefore, no failure to respond by the
railways so as to constitute a basis for an action for damages
against the defendant railways under section 262(7) of the
Railway Act for breach of any obligation of the railways
prescribed in section 262(1) and (2) of the Act. Accordingly,
the plaintiffs for the purposes of this action are not "person [s]
aggrieved" within the meaning of section 262(7) of the Rail
way Act. In the absence of specific statutory power, no deriva
tive actions lie. Neither the plaintiffs nor the class they purport
to represent have a cause of action against The Canadian
Wheat Board for any accounting. It would appear that "juris-
diction has been otherwise specially assigned" within the mean
ing of section 23 of the Federal Court Act. Jurisdiction to
determine in all its aspects a claim for damages under section
262(7) of the Railway Act arising out of failure to provide
adequate and proper traffic accommodations required by sec
tion 262(1) and (2) of that Act has been "specially assigned" to
the Canadian Transport Commission. Accordingly, the Trial
Division of the Federal Court of Canada does not have any
jurisdiction and the Canadian Transport Commission has sole
jurisdiction in relation to a properly constituted claim for
damages of this latter kind.
Jamieson v. Carota [1977] 2 F.C. 239, applied. Ex parte
Sidebotham; In re Sidebotham (1880) 14 Ch.D. 458,
referred to. R. v. Paddington Valuation Officer, Ex parte
Peachey Property Corp. Ltd. [1966] 1 Q.B. 380, referred
to. Arsenal Football Club Ltd. v. Ende [1977] 2 W.L.R.
974 (H.L.), referred to. Illinois Central Railway Co. v.
Baker (1913) 159 S.W. 1169 (Kentucky Court of Appeal),
referred to. Riske v. Canadian Wheat Board [ 1977] 2 F.C.
143, referred to. Norfolk v. Roberts (1913) 28 O.L.R. 593,
referred to. Meagher v. Canadian Pacific Railway Co.
(1912) 42 N.B.R. 46, referred to.
APPLICATION.
COUNSEL:
A. Golden, Q.C. and W. Bartlett for plaintiffs.
C. R. O. Munro, Q.C. for defendant Canadian
Pacific Railway Company.
L. L. Band for defendant Canadian National
Railway Company.
H. B. Monk, Q. C. and D. S. Sagoo for
defendant without liability The Canadian
Wheat Board.
SOLICITORS:
Golden, Levinson, Toronto, for plaintiffs.
Canadian Pacific Railway Company Law
Department, Montreal, for defendant Canadi-
an Pacific Railway Company.
Canadian National Railway Company Law
Department, Toronto, for defendant Canadi-
an National Railway Company.
The Canadian Wheat Board Law Depart
ment, Winnipeg, for defendant without liabili
ty The Canadian Wheat Board.
The following are the reasons for judgment
rendered in English by
GIBSON J.: This is an application by the Canadi-
an Pacific Railway Company and the Canadian
National Railway Company, defendants, and The
Canadian Wheat Board (described in the state
ment of claim as "defendant without liability") for
an order striking out the statement of claim and
dismissing the action on the grounds (1) that the
Court is without jurisdiction to try the action; (2)
that the statement of claim discloses no reasonable
cause of action; and also (3) that the action is not
properly constituted as a class action within the
meaning of Rule 1711 of this Court.
When the application first came on for hearing
in June 1979, after discussion with counsel, I
directed that memoranda of law be filed and
exchanged so that full and comprehensive argu
ment might be made. This was done. In essence,
therefore, this application is equivalent to an
application under Rule 474 in that the "Court has
accorded [all the] parties ... an opportunity for 'a
relatively long ... instead of a short and summary
hearing.' " (Cf Jamieson v. Carota.)'
The plaintiffs (who purport to represent them
selves and all other holders of a "permit book"
issued by The Canadian Wheat Board) submit
their cause of action is founded on statute law,
namely, section 262 of the Railway Act, R.S.C.
1970, c. R-2, alleging that they are "person[s]
aggrieved" within the meaning of section 262(7) of
that Act.
The plaintiffs bring this action as producers
entitled to deliver grains (wheat and barley)
during the crop years 1977-78 and 1978-79 pursu
ant to sections 16, 17, and 18 of the Canadian
Wheat Board Act, R.S.C. 1970, c. C-12, such
entitlement to deliver being evidenced by "permit
book[s]" issued by The Canadian Wheat Board,
which "permit book[s]" prescribe the quantum of
their respective quotas for delivery of such grain.
The Canadian Wheat Board is an agent of Her
Majesty whose purpose and reason for existence is
to provide the orderly marketing of grain products
produced in Western Canada in interprovincial
and export trade.
This is an action for damages, but the plaintiffs,
as noted, make no claim against The Canadian
Wheat Board for damages. Instead, the plaintiffs
claim damages only from the two railway
defendants.
The reason and motivation for this claim for
damages is found in the plaintiffs' view that in
respect to certain excess grain, (that is grain for
which the plaintiffs did not have an entitlement to
I [ 1977] 2 F.C. 239 at p. 244 per Jackett C.J.
deliver as evidenced by their "permit book[s]", but
which the plaintiffs produced in the crop years
1977-78 and 1978-79) that the defendant railways
were under a statutory obligation, which the rail
ways breached, to supply an adequate number of
proper railway box cars to carry and deliver this
excess grain to port which excess grain The
Canadian Wheat Board could have sold.
As to the statutory obligation which the plain
tiffs alleged the railways breached, the plaintiffs
submit that notwithstanding the statutory market
ing scheme enacted by the Canadian Wheat Board
Act, the plaintiffs, as producers, have a cause of
action for damages against the railways founded
on section 262(7) of the Railway Act as "person [s]
aggrieved" maintainable in the Federal Court of
Canada.
A short review of the origin and how The
Canadian Wheat Board operates may be helpful
background for the purpose of determining the
matter raised in these motions and is now made.
The Canadian Wheat Board was first estab
lished in 1935 at the urging of producers and
became a permanent Crown Corporation in 1967.
The genesis of this Board is found in the history of
grain growing in Canada; and the issues raised in
this action arise from that history.
When grain-growing became a major enterprise
in Western Canada in the 1880's, institutions to
market and move such grain were established by
the railroad companies, and principally in that era
the Canadian Pacific Railway Company became
involved in moving prairie grain to markets. When
the quantities to be marketed increased substan
tially in the 1890's a number of economic prob
lems arose with the producers. Two of these eco
nomic problems were, first, access to
transportation and second, transportation costs.
In partial satisfaction of the first issue, The
Canada Grain Act of 1912, S.C. 1912, c. 27,
among other things, provided for mandatory feder
al regulation of the box car allocation. In partial
satisfaction of the second issue, the Crow's Nest
Pass Agreement, S.C. 1896-97, c. 5, was entered
into and promulgated. This latter guaranteed in
perpetuity export rates on western grain. At that
time, on the other hand, the railways, especially
the Canadian Pacific Railway received substantial
concessions. And although the first Canadian
Wheat Board was not established arising out of
the two above issues, (of which the issue of access
to transportation is relevant in this action) at the
present time certain authority of the present
Canadian Wheat Board extends to access to
transportation.
Since 1967 The Canadian Wheat Board's au
thority generally in all its various matters has
remained essentially the same except that in 1974
western farmers were allowed the option of selling
feed wheat, oats and barley for non-human con
sumption in Canada through the open market. The
Board however remained and remains today as the
sole agent for the sale in international markets of
wheat, oats and barley that are produced in
Manitoba, Saskatchewan, Alberta and the Peace
River block of British Columbia.
The authority of The Canadian Wheat Board
however does not extend to and is not concerned
with transportation costs and specifically not with
subsidized transportation rates via the Crow's Nest
Pass Agreement.
Putting it positively, the authority of the Board
may be stated generally by saying that its objects
are namely: (1) to market as much grain as possi
ble at the best price that can be obtained; (2) to
provide price stability to prairie grain producers;
and (3) to ensure that each producer obtains each
year a fair share of the available grain market.
In implementing the Board's national policy
there is therefore provided equal market access,
orderliness and price stability for Canadian grain
producers.
In carrying out such national policy however,
the Board has not and does not function as a price
or income support agency. Instead, the price paid
to producers is that obtained by the Board from
both domestic and foreign customers.
In carrying out such national policy, the ability
of The Canadian Wheat Board to control the grain
market also does not arise from ownership of
facilities, but solely from the authority given to it
under the Canadian Wheat Board Act. Instead the
Board's authority to control the grain market
arises from the implementation of its powers to
impose quotas on deliveries. Quotas on deliveries
are the key to the Board's control.
By quota on deliveries is meant that, except for
grain produced and fed directly to livestock or
grain that is sold by grain producers to cattle
feedlot operators, grain in the main is delivered by
the producers to primary elevators. These primary
elevators are not owned by The Canadian Wheat
Board, but the Board is authorized and does con
trol the flow of grain through these elevators by
controlling the transportation by rail of all grains
from these primary elevators to terminal elevators
and to domestic processing plants and export ports.
The authority to control grain transportation is
sanctioned by The Canada Grain Act; and the
authority to control the quantities of grain deliv
ered by producers to elevators is by use and imple
mentation of a quota system sanctioned by the
Canadian Wheat Board Act.
As to the overall operations of the Board in
carrying out its statutory powers and duties, as I
understand it however, it may be said that the
Board implements its national grain marketing
policy by employing five policy mechanics,
namely: (1) by the use of year long price pools; (2)
by the use of marketing quotas; (3) by the man
agement of transportation; (4) by the use of the
Winnipeg Commodity Exchange; and (5) by the
use of a complex export selling system.
The policy mechanics (2) and (3) above referred
to, namely, the use of marketing quotas and the
management of transportation only are relevant to
the issues raised in the statement of claim in this
action.
The Use of Marketing Quotas
The quota system used by the Board is designed
to give each producer an equal opportunity to sell
his grain. By this quota system, The Canadian
Wheat Board controls the quantity of grain
(except for domestic feed grains) that each pro
ducer may deliver at any particular time. Each
producer is issued a permit. On that permit is
prescribed the amount of the grain or grains that
such producer holder of that permit is authorized
legally to deliver to a primary elevator. These
permits evidencing quotas are stated in terms of
the number of bushels per acre that a producer can
deliver and a particular kind or grade of grain.
Therefore, as part of this market quota system
control policy, the Board exercises exclusive
power: (1) to issue permit books to producers who
desire to sell grain; (2) to limit grain deliveries to
primary elevators to producers in possession of
permit books; and (3) to fix from time to time
quotas for each kind of grain that can be delivered
to primary elevators.
As a consequence, this quota system regulates
the type and quantity of grain entering the system
so to speak.
The Management of Transportation
As I understand it, in implementing its powers
as to the management of transportation, The
Canadian Wheat Board works with the railways
on grain transportation. This is done by consulta
tion at the senior levels and also on a more general
level on a day-to-day basis.
The primary elevator agents also report weekly
on the grain available (by grade) in elevators for
shipment.
It appears that grain cars are allocated to pri
mary elevators, loaded by the agents, and picked
up by the railway companies. This is done appar
ently pursuant to a shipping block system whereby
box car allocation to various shipping blocks is
determined jointly by The Canadian Wheat Board
and the railways.
It appears also that at least during the subject
years referred to in the statement of claim, namely
1977-78 and 1978-79 producers did produce more
grain than could be accommodated in the system
as outlined above and that part of the reason for
the inability to accommodate this excess grain was
the lack of sufficient railway box cars to transport
this excess grain to a market which market appar
ently was available. No permits were issued to
producers by The Canadian Wheat Board author
izing them to deliver this excess grain.
So much for a general historical and other
general overview of the factual and statutory
authorities which are relevant to a consideration of
the issues raised in the statement of claim in this
action.
For the purpose of this motion, however, it is
more convenient to recapitulate and put in a dif
ferent form some of the more salient of these
matters, and to set out others which are also
relevant.
First, The Canadian Wheat Board controls the
supply of grain that it must market by placing a
quota on delivery of grain by producers, not a
quota on production. (See section 21 of the
Canadian Wheat Board Act.)
Second, producers may produce all the grain
they wish, but may not deliver any grain produced
to any elevator or railway for sale in the interpro-
vincial or export market which has not been
authorized for delivery in a "permit" issued by
The Canadian Wheat Board.
Third, elevators and railways are prohibited
from accepting delivery of any grain from pro
ducers that is not authorized in such producers'
"permits". (See sections 17 and 18 of the Canadi-
an Wheat Board Act.)
Fourth, the Board is the sole marketing agent
for interprovincial and export trade in grains. (See
sections 33 and 34 of the Canadian Wheat Board
Act.)
Fifth, when producers deliver grain as author
ized by their respective permit books, title to such
grain passes to the Board. The Board buys such
grain. (See section 25 of the Canadian Wheat
Board Act.) The grain therefore, which is deliv
ered to elevators or put into the market system so
to speak pursuant to such marketing programme
after delivery is owned by the Board.
Sixth, in respect to such grain when delivered to
the railways, the duty of the railways as to car
riage of it for The Canadian Wheat Board, as
owner, is generally that of a common carrier as
further qualified by the provisions of the Railway
Act, R.S.C. 1970, c. R-2, as for example, section
262(1) and (2). Relevant to the allegations in this
action in particular is section 262(1)(b) and (e) of
that Act which reads:
262. (1) The company shall, according to its powers,
(b) furnish adequate and suitable accommodation for the
carrying, unloading and delivering of all such traffic;
(e) furnish such other service incidental to transportation as
is customary or usual in connection with the business of a
railway company, as may be ordered by the Commission.
As to the issues raised in the statement of claim
in this action, the burden of the allegations is that
the railways during the relevant years were under
a statutory obligation to the plaintiffs and they did
not comply with such statutory duty, namely, the
duty to provide sufficient and adequate railway
cars to move to market all the grain which the
plaintiff producers produced and The Canadian
Wheat Board could have sold; that thereby the
plaintiffs suffered damages which damages should
be paid to The Canadian Wheat Board only
because of and by reason of this statutory market
ing scheme enacted by the Canadian Wheat Board
Act; that this statutory scheme was not intended
by Parliament to "have the effect of insulating the
defendant railways from liability for breach of
their statutory duty to carry and deliver the grain
produced by the plaintiff' producers; and that
therefore the plaintiff producers have a cause of
action to recover such damages from the defendant
railways maintainable in this Court, as "person[s]
aggrieved" within the meaning of section 262(7) of
the Railway Act.
The plaintiffs plead at paragraphs 8 and 9 of
their statement of claim as follows:
8. The Plaintiffs are required to bear the costs of transporta
tion, including demurrage, handling and storage charges. The
surplus in which they share depends upon the quantities of
grain delivered pursuant to contract, as well as the costs of
marketing and delivery. The Plaintiffs further are called upon
to deliver grain under the statutory scheme on a quota system
dependant upon the sales made and planned by The Canadian
Wheat Board.
9. At all material times The Canadian Wheat Board arranged
with the Defendant railway companies for the carriage of grain
through the device of the Transportation Committee for fore
casting long-range requirements and through a Block Shipping
System for allocating rolling stock and related facilities on a
six-week shipping cycle. The Defendant railway companies
participated in the decisions so made and confirmed their
capacity to carry the grain in question. Each Defendant railway
company serves different and exclusive areas of the provinces of
Manitoba, Saskatchewan and Alberta as well as certain por
tions of British Columbia.
And at paragraphs 12 and 13, the plaintiffs
further plead as follows:
12. In the 1977-78 crop year The Canadian Wheat Board
contracted for the sale of approximately 23 million tonnes of
grain for export. Such sales were negotiated and contracted in
reliance upon the commitments of the Defendant railway com
panies, made as set forth in paragraph 9 above.
13. The Defendant railway companies failed to carry and
deliver approximately 2 million tonnes of grains referred to in
paragraph 12 above in accordance with their duties and obliga
tions under Section 262(1) and (2) of The Railway Act for
which default they are responsible to the Plaintiffs in damages.
And at paragraphs 17 and 18, the plaintiffs
further plead as follows:
17. The Canadian Wheat Board, although requested to do so,
has not taken any action against the Defendant Railway com
panies for the recovery of the damages set forth herein.
18. The Canadian Wheat Board is the appropriate recipient of
the damages claimed in this action and the Plaintiffs specifical
ly request that their recovery, exclusive of costs, be paid to The
Canadian Wheat Board to be dealt with according to the lawful
and appropriate procedures established by it.
Section 262(1) and (2) of the Railway Act
prescribe certain powers, duties and obligations of
railway companies as follows:
262. (1) The company shall, according to its powers,
(a) furnish, at the place of starting, and at the junction of
the railway with other railways, and at all stopping places
established for such purpose, adequate and suitable accom
modation for the receiving and loading of all traffic offered
for carriage upon the railway;
(b) furnish adequate and suitable accommodation for the
carrying, unloading and delivering of all such traffic;
(c) without delay, and with due care and diligence, receive,
carry and deliver all such traffic;
(d) furnish and use all proper appliances, accommodation
and means necessary for receiving, loading, carrying, unload
ing and delivering such traffic; and
(e) furnish such other service incidental to transportation as
is customary or usual in connection with the business of a
railway company, as may be ordered by the Commission.
(2) Such adequate and suitable accommodation shall include
reasonable facilities for the junction of private sidings or pri
vate branch railways with any railway belonging to or worked
by the company, and reasonable facilities for receiving, for
warding and delivering traffic upon and from those sidings or
private branch railways, together with the placing of cars and
moving them upon and from such private sidings and private
branch railways.
and section 262(7) of that Act reads as follows:
262....
(7) Every person aggrieved by any neglect or refusal of the
company to comply with the requirements of this section has,
subject to this Act, an action therefor against the company,
from which action the company is not relieved by any notice,
condition or declaration, if the damage arises from any negli
gence or omission of the company or of its servant.
A comprehensive transportation Act was enact
ed by Parliament in 1966-67 which gave wide
embracing powers to the Canadian Transport
Commission: National Transportation Act, S.C.
1966-67, c. 69 (and further amended since then).
Sections 55, 56, 58 and 61(1) and 64(9) of the
National Transportation Act, R.S.C. 1970, c.
N-17, prescribe certain of the powers given to the
Canadian Transport Commission as follows:
55. (1) The Commission may of its own motion, or upon the
application of any party, and upon such security being given as
it directs, or at the request of the Governor in Council, state a
case, in writing, for the opinion of the Federal Court of Appeal
upon any question that in the opinion of the Commission is a
question of law or of the jurisdiction of the Commission.
(2) The Federal Court of Appeal shall hear and determine
such question, and remit the matter to the Commission with the
opinion of the Court thereon.
56. (1) In determining any question of fact, the Commission
is not bound by the finding or judgment of any other court, in
any suit, prosecution or proceeding involving the determination
of such fact, but such finding or judgment, in proceedings
before the Commission, is prima facie evidence only.
(2) The pendency of any suit, prosecution or proceeding, in
any other court, involving questions of fact, does not deprive the
Commission of jurisdiction to hear and determine the same
questions of fact.
(3) The finding or determination of the Commission upon
any question of fact within its jurisdiction is binding and
conclusive.
58. Upon any application made to the Commission, the
Commission may make an order granting the whole or part
only of such application, or may grant such further or other
relief, in addition to or in substitution for that applied for, as to
the Commission may seem just and proper, as fully in all
respects as if such application had been for such partial, other,
or further relief.
61. (1) Any decision or order, made by the Commission
may be made a rule, order or decree of the Federal Court, or of
any superior court of any province of Canada, and shall be
enforced in like manner as any rule, order or decree of such
court.
64....
(9) Save as provided in this section,
(a) every decision or order of the Commission is final, and
(b) no order, decision or proceeding of the Commission shall
be questioned or reviewed, restrained or removed by prohibi
tion, injunction, certiorari, or any other process or proceed
ing in any court.
For this action to succeed, as stated, it must be
founded on breach during the relevant years by the
railways of a statutory duty to the plaintiff pro
ducers requiring the railways directly or through
The Canadian Wheat Board to accept delivery of
certain excess grain produced by the plaintiffs not
authorized for delivery by The Canadian Wheat
Board (pursuant to its exclusive power to so
authorize) in the plaintiff producers' "permits" for
transportation to domestic processing plants and
export ports for the purpose of sale in the interpro-
vincial and export markets.
After careful consideration of all the facts
alleged in the statement of claim, the very com
plete memoranda of law submitted by counsel for
all the parties, and the full oral argument of
counsel for all the parties, I have come to the
following conclusions in respect to the questions
raised:
The first question raised for determination is
whether or not the plaintiffs are "person [s]
aggrieved" within the meaning of section 262(7) of
the Railway Act above quoted.
By the enactment of that subsection, in case of
non-compliance, every "person aggrieved" within
the statutory meaning of these words has a right to
complain. Such right to complain may be to the
courts or to the Canadian Transport Commission.
A person usually is not considered "aggrieved"
within that subsection (as is also the case where
similar words are employed in other statutes)
unless he himself can establish he suffered particu
lar loss and not merely because he has a grievance.
(See Ex parte Sidebotham. In re Sidebotham. 2 )
This rigid test of locus standi has been departed
from in certain situations. In Regina v. Paddington
Valuation Officer, Ex parte Peachey Property
Corporation Ltd.' the plaintiffs were held to be
"person [s] aggrieved" so as to be entitled to cer-
tiorari or mandamus even though they could not
establish that they had suffered any particular
loss. Lord Denning at page 401 said: "The court
would not listen, of course, to a mere busybody
who was interfering in things which did not con
cern him. But it will listen to anyone whose inter
ests are affected by what has been done.... So
here it will listen to any ratepayer who complains
that the list is invalid". (See also Arsenal Football
Club Ltd. v. Ende 4 .)
This departure from the rigid test of locus
standi and the remedies thereby available appear
to be confined to actions against public authorities
exercising statutory powers. The remedies are by
way of certiorari, mandamus and prohibition.
These remedies based on the concept of this depar
ture from the rigid test of locus standi are not
available against non-public authorities exercising
non-statutory powers, and therefore are not avail
able against the defendant railways.
2 (1880) 14 Ch.D. 458 at 465.
3 [1966] 1 Q.B. 380.
4 [1977] 2 W.L.R. 974 (H.L.).
In any event, this action is not a claim for any of
these remedies but instead is a claim for damages
for alleged statutory default by the railways to
provide adequate railway box car accommodation
and transportation to port of the excess grain
produced by the plaintiffs but not delivered in the
system. This system The Canadian Wheat Board,
as stated, by virtue of the provisions of the
Canadian Wheat Board Act, has complete control
over. Such control extends over the entire market
ing process and includes the exclusive right to
determine who may deliver grain to the elevators
and put grain into the grain export market system
so to speak, and also exclusive control over the
transportation process.
In my view, while the plaintiff producers and
The Canadian Wheat Board in matters that affect
producers may have an "identity of interest" as
submitted by counsel for the plaintiffs, it is not a
"legal fiction" that the grain produced and origi
nally owned by the plaintiffs which was offered the
railways for carriage was the grain of The Canadi-
an Wheat Board. In law it was. (See section 25 of
the Canadian Wheat Board Act.) The provisions
of the Canadian Wheat Board Act in respect
thereto cannot be ignored. And as to so-called
"excess" grain produced during the relevant years
by the plaintiff producers but not authorized by
"permits" to be delivered, such grain in fact was
not delivered (the statutory prohibition to the rail
ways to accept it being adhered to), and therefore
in any event no duty arose as a common carrier on
the part of the railway under section 262 of the
Railway Act.
Recapitulating and putting it another way, the
plaintiffs do not allege that they offered for deliv
ery any grain (the so-called "excess" grain
referred to in these reasons) not authorized for
delivery by and in their respective "permits"
(issued by The Canadian Wheat Board) to the
defendant railways for carriage to the export and
interprovincial market from primary elevators to
terminal elevators and domestic processing plants
and export ports. The plaintiffs in fact plead that
they had no right to do so. And there was express
statutory prohibition to the railways to accept
grain not authorized by "permits".
And the grain authorized in such producers'
"permits" that was actually delivered in the rele
vant years was in law grain owned by The Canadi-
an Wheat Board.
There was therefore no contract express or
implied between the plaintiffs and the defendant
railways by which a right to demand might be
inferred and there was no statutory right to
demand that the defendant railways accept deliv
ery of this so-called "excess" grain, not authorized
for delivery by "permits"; and further there was in
fact no demand; and as a consequence therefore,
no failure to respond by the railways so as to
constitute a basis for an action for damages
against the defendant railways under section
262(7) of the Railway Act for breach of any
obligation of the railways prescribed in section
262(1) and (2) of the Act.
Accordingly, the plaintiffs for the purposes of
this action are not "person[s] aggrieved" within
the meaning of section 262(7) of the Railway Act.
(Cf. Illinois Central Railway Company v.
Baker 5 . )
The next question raised is whether or not the
plaintiffs are entitled to bring a class action.
Because neither the plaintiffs nor any of the
class they purport to represent are owed any con
tractual or statutory duty (of a type a breach of
either of which would sound in damages) by the
defendant railways under section 262 of the Rail
way Act and also because there is no allegation
that the defendant railways are otherwise vicari
ously liable in damages to the plaintiffs in this
matter, none of them has a cause of action against
the defendant railways under section 262(7) of
5 (1913) 159 S.W. 1169 (Kentucky Court of Appeal).
that Act. (Cf Riske v. Canadian Wheat Board 6 .)
The next question raised is whether or not the
plaintiffs have a right to bring a derivative action
against the defendant railways.
Counsel for the plaintiffs in their written memo
randum of law concede that the plaintiffs have no
right to bring a derivative action and do not pur
port to do so.
In any event, in the absence of specific statutory
power, no derivative actions lie. (Cf Norfolk v.
Roberts 7 .)
The next question raised is whether or not the
plaintiffs have a cause of action against The
Canadian Wheat Board.
The plaintiffs do not claim to have a cause of
action against The Canadian Wheat Board.
In any event, neither the plaintiffs nor the class
they purport to represent have a cause of action
against The Canadian Wheat Board for any
accounting, (cf Riske v. Canadian Wheat Board
(supra)); and accordingly The Canadian Wheat
Board should not have been joined as a party
defendant.
The final question raised is whether or not the
Trial Division of the Federal Court of Canada has
jurisdiction in this matter in any event if there was
a valid cause of action for damages for breach of
such statutory duty of the railways.
Section 23 of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, enacted that the Trial
Division of the Federal Court of Canada:
... has concurrent original jurisdiction as well between subject
and subject as otherwise, in all cases in which a claim for relief
is made or a remedy is sought under an Act of the Parliament
of Canada or otherwise in relation to any matter coming within
any following class of subjects, namely bills of exchange and
promissory notes where the Crown is a party to the proceed
ings, aeronautics, and works and undertakings connecting a
6 [1977] 2 F.C. 143.
7 (1913) 28 O.L.R. 593.
province with any other province or extending beyond the limits
of a province, except to the extent that jurisdiction has been
otherwise specially assigned.
It would appear that "jurisdiction has been
otherwise specially assigned" within the meaning
of the latter section in respect to the statutory duty
of the railways under section 262(1) and (2) of the
Railway Act.
The case of Meagher v. Canadian Pacific Rail
way Company' and section 58 of the National
Transportation Act support the proposition that
the Canadian Transport Commission has been spe
cially assigned and has exclusive jurisdiction to
consider and determine in all its aspects this kind
of claim, because of its nature, against the defend
ant railways under section 262(7) of the Railway
Act by "person[s] aggrieved" within the meaning
of that subsection.
The Meagher (supra) decision in respect to the
matter of jurisdiction to determine whether or not
there was breach by the railway of the statutory
duty to provide reasonable and proper traffic
facilities was that the Board of Railway Commis-.
sioners (now the Canadian Transport Commis
sion) has exclusive jurisdiction to determine
whether a railway has provided reasonable accom
modations and facilities for traffic as required by
section 284 and section 317 (now sections 262 and
265 of the Railway Act).
Section 58 of the National Transportation Act
assigns to the Canadian Transport Commission a
power that the Board of Railway Commissioners
did not have when the Meagher (supra) case was
decided, namely, the power to assess and award
damages as contemplated by section 262(7) of the
Railway Act in a properly constituted and action
able claim for damages against a railway for a
violation of its statutory duty to provide such
reasonable accommodations and facilities for traf
fic which by section 262 of the Railway Act the
railway is required to provide. Section 58 of the
National Transportation Act, R.S.C. 1970, c.
N-17, reads:
58. Upon any application made to the Commission, the
Commission may make an order granting the whole or part
only of such application, or may grant such further or other
8 (1912) 42 N.B.R. 46.
relief, in addition to or in substitution for that applied for, as to
the Commission may seem just and proper, as fully in all
respects as if such application had been for such partial, other,
or further relief.
Of course jurisdiction to try all other kinds of
claims arising under section 262 of the Railway
Act has not been assigned to the Canadian Trans
port Commission. Jurisdiction to try some of these
other claims lies exclusively with the courts. (Cf.
Meagher (supra) case, Barker C.J. at page 81.)
But jurisdiction to determine in all its aspects a
claim for damages under section 262(7) of the Act
arising out of failure to provide adequate and
proper traffic accommodations required by section
262(1) and (2) of the Railway Act has been
"specially assigned" to the Canadian Transport
Commission.
Accordingly, the Trial Division of the Federal
Court of Canada does not have any jurisdiction
and the Canadian Transport Commission has sole
jurisdiction in relation to a properly constituted
claim for damages of this latter kind.
In the result, therefore, the statement of claim
be and it is ordered that it is struck out, and the
action against all defendants be and it is 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.