Judgments

Decision Information

Canadian Pacific Ltd. v. Canadian Transport Commission

Collection	Judgments
Date	1980-04-10
Report citation	[1981] 1 F.C. 113
File numbers	A-407-79
Subjects	Railways

Decision Content

A-407-79

Canadian Pacific Limited (Appellant)

Canadian Transport Commission (Respondent)

Court of Appeal, Thurlow C.J., Heald J. and Kerr D.J. — Ottawa, March 25, 26 and April 10, 1980.

Railways — Appeal from a decision of the Railway Trans port Committee ordering appellant to re-file claims for subsi dies for 1970-1974 inclusive for uneconomic railway branch line designated as a branch line not to be abandoned — Minister of Finance had already paid the claims for the years in question — Whether the Commission has the power or jurisdiction under s. 258(2) of the Railway Act or otherwise to order the appellant to re-file its claims — Appeal allowed — National Transportation Act, R.S.C. 1970, c. N-17, as amend ed, ss. 21, 24(1),(3), 45(3), 49, 63, 64(2) — Railway Act, R.S.C. 1970. c. R-2, ss. 252(a),(b), 256, 258(l)(a),(b),(2), 261(6), 413(5) — Railway Act, R.S.C. 1952. c. 234, s. 52.

Appeal pursuant to subsection 64(2) of the National Trans portation Act, from a decision of the Railway Transport Com mittee (R.T.C.) of the Canadian Transport Commission, order ing the appellant to re-file claims for actual losses attributable to uneconomic railway lines for all years claimed regardless of whether payments had been made. The subject segment of the appellant's railway system was designated as a branch line that shall not be abandoned pursuant to paragraph 258(1)(a) of the Railway Act. The appellant claimed, and was paid by the Minister of Finance, subsidies for the years 1970 to 1974 inclusive, but withdrew its claims for the years 1975 to 1977 inclusive. The issue is whether the Commission has the power or jurisdiction under subsection 258(2) of the Railway Act or otherwise to order the appellant to re-file its claims.

Held, the appeal is allowed. The R.T.C. had no jurisdiction to require the appellant to re-file claims.

Per Thurlow C.J.: The Commission's earlier determination under subsection 258(2) of the Railway Act of the appellant's "actual loss" was an order or decision within the meaning of section 63 of the National Transportation Act, that, under that provision, the Commission had jurisdiction to review and to rescind, change, alter or vary. What is being required here is that the appellant file anew a revised claim in respect of losses which have already been claimed, determined and paid. There is no provision or rule under which the Commission can require or compel a railway company against its will to file a claim under subsection 258(2) of the Railway Act if the company does not elect to do so. For the same reason, the company cannot be compelled to file a new or different claim. Moreover,

it is not a new or different claim that may be reviewed and varied or changed under section 63.

Per Heald J.: Under section 258(2), the Commission per forms a very limited twofold function. Firstly, it is required to determine the actual loss of the railway company for the fiscal period being claimed and thereafter, to make a recommenda tion to the Minister of Finance with respect thereto. In the decision herein impugned, it seeks to order the appellant to re-file its claims for the period 1970 to 1974. There is no authority in section 258 or elsewhere in the Railway Act or the National Transportation Act upon which to base such an order. The power to review, rescind, change, alter, or vary orders or decisions conferred on the Commission by section 63 of the National Transportation Act must be confined to orders which the Commission is empowered to make.

Per Kerr D.J. dissenting: It should not be inferred that the Commission's power to review conferred in section 63 of the National Transportation Act does not apply to its prior deter minations of the losses on the Estevan subdivision in the years 1970 to 1974. The Commission's obligation under section 258 of the Railway Act is to determine actual loss and to make a recommendation to the Minister of Finance in that respect. If, after determining the loss, it seems to the Commission that the amount as determined by it was too small or too large, the Commission has power under section 63 to review the matter and make a new determination of the loss. Neither the Railway Act nor the National Transportation Act indicates the method or procedure to be followed by the Commission in discharging its responsibility to determine actual losses, nor the procedure to be followed by the Commission in reviewing a previous determination of that kind. The method and procedure must be largely left to the judgment, experience and expertise of the Commission. The Committee with good reason concluded that it should review its determinations of Canadian Pacific's Estevan subdivision losses for the years 1970 to 1974, and that its task of determining them correctly would be best served or at least facilitated by a re-filing of claims.

Toronto Transportation Commission v. Canadian Nation al Railways [1930] S.C.R. 94, affirmed sub nom. Canadi- an Pacific Railway Co. v. Toronto Transportation Com mission [1930] A.C. (P.C.) 686, referred to.

APPEAL. COUNSEL:

H. Christian Wendlandt and Terrence

Moloney for appellant.

Henry L. Molot for respondent.

SOLICITORS:

Law Department, Canadian Pacific Limited, Montreal, for appellant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

THURLOW C.J.: This is an appeal under subsec tion 64(2) of the National Transportation Act, R.S.C. 1970, c. N-17, as amended, from a decision of the Railway Transport Committee of the Canadian Transport Commission dated January 22, 1979. The decision relates to a large number of claims that had been made by the appellant and two other railway companies for subsidies under sections 256 and 258 of the Railway Act, R.S.C. 1970, c. R-2, in respect of losses incurred in the operation of uneconomic branch lines. Some of the claims had been disallowed. Others had been filed and were pending before the Commission. In gen eral what the decision purports to do is to establish principles on which the claims will be dealt with by the Commission. For this purpose, the Committee isolated and discussed three main issues viz. the main line/branch line issue, the segmentation issue and the bridge traffic issue. The present appeal is concerned only with the decision as it relates to the segmentation issue and with only that part of it which deals with claims which had been made by the appellant under section 258 for subsidies in respect of losses incurred in the operation of the Bienfait-Kemnay segment of its Estevan subdivi sion branch line for the fiscal years 1970 to 1974 inclusive. These claims, totalling 2.5 million dol lars, differed from the others in that they had been previously approved by the Commission and had been paid and further in that with respect to them the appellant had not proposed that they be re-computed on a different basis nor had it offered to re-file them. What is challenged in this appeal is the jurisdiction of the Railway Transport Commit tee to deal as it did with these claims.

The Committee's decision with respect to the segmentation appears from the following.

The Committee has made disallowance on all claims for lines which have been identified as segmentation cases, until this issue is resolved. Table III lists the lines which have been identified to date and the disallowances pertaining to each.

Approximately $25 million in disallowances are associated with the segmentation issue. However, the financial signifi cance of the issue is not fully reflected by this figure. Subsidy payments under Section 258 of the Railway Act have been made for Canadian Pacific Limited's Estevan Subdivision in respect of the years 1970 to 1974 inclusive. This line was later identified as a segmentation case and subsequent claims were disallowed in total. The final disposition of these past pay ments, amounting to approximately 2.5 million dollars, is also a subject of this decision.

Table III is entitled:

Disallowances up to and Including 1976 Under Section 258 of the Railway Act Made as a Result of the Segmentation Issue

(Millions of Dollars)

and includes the following item:

AMOUNT

RAILWAY SUBDIVISION DISALLOWED

CP Estevanw 3.32

and the note:

(1) All claims have been withdrawn from 1975 to present date, no future claims to be submitted.

The Railways have proposed that "the total set of Railway submissions must be filed in such a way that all railway lines, for which no submissions have been made, form an intercon nected railway network." This would appear to mean that a non-claimed segment must not be effectively isolated from the rest of the rail network. "Effectively isolated" means that abandonment of the claimed line or a portion thereof would result in one of the following:

—Traffic from a non-claimed line or portion thereof would not have access to the rest of the rail system.

—Traffic from a non-claimed line or portion thereof would have to be rerouted in an unreasonably circuitous manner to reach its destination.

This principle would apply to the outstanding claims as well as providing a guideline for future claim submissions. A number of outstanding claims may be retracted because no economic loss could be attributed to the claimed lines. Other claims would be refiled retroactively if a basis still existed for payment under Section 256 or 258 of the Railway Act.

Subsequent to the Railways' proposal, as above, Canadian Pacific Limited withdrew their claims for the Estevan Sub division for the years 1975, 1976, and 1977, these being claims which were disallowed due to the segmentation prob-

lem. Canadian Pacific Limited has not offered to refile the claims on the Estevan Subdivision in respect of years prior to 1975. It would therefore appear that a special case is being argued for the Estevan Subdivision and that the principle suggested for resolution of the segmentation issue should not be applied in a case where payments have been made.

Based upon the various arguments and interpretations placed before this Committee and following the detailed legal review above, it is hereby decided that, with the exception of past payments on the Estevan Subdivision, the Railways may file subsidy claims for segments of branch lines providing that any segment not claimed for subsidy would not be effectively isolated from the rest of the network, if the claimed segment of line were abandoned.

The Committee is of the opinion that where the abandon ment of part of a branch line will result in the de facto abandonment of another part of the branch line, common sense dictates that the application for abandonment must be considered in respect of both parts. In establishing this principle we are doing no more than ensuring compliance with the Railway Act which prohibits the abandonment of the operation of a branch line or a part thereof without the prior approval of the Committee.

In order to finalize past claims the Railways must refile all claims on lines where segmentation problems now exist. Furthermore, where this issue arises in future branch line subsidy claims, each line will be evaluated on a case-by-case basis and all factors which are relevant to a decision on each case will be considered.

Claims on CP's Estevan Subdivision are to be reified for all years claimed, regardless of whether payments have been made. No convincing arguments have been placed before the Committee to justify treating this line in a manner different from any other segmentation case, nor has Canadian Pacific Limited provided a compelling argument that claims for years prior to 1975 should be treated in a manner different from that for 1975 and subsequent years. Therefore, the Committee must reject Canadian Pacific Limited's proposal that they be allowed to retain all monies paid to date in respect of this Subdivision.

Section 258 of the Railway Act provides:

258. (1) Notwithstanding anything in sections 252 to 257, the Governor in Council may, from time to time, by order,

(a) designate branch lines that shall not be abandoned within such periods as the Governor in Council may prescribe; and

(b) designate areas within which branch lines shall not be abandoned within such periods as the Governor in Council may prescribe;

and branch lines so designated or within areas so designated shall not be approved for abandonment within the prescribed periods nor shall an application for the abandonment of any such line be made to the Commission within the prescribed period.

(2) Where a branch line or any segment thereof is being operated after the 22nd day of March 1967 at an actual loss and the company operating that line or segment thereof is unable to make an application for abandonment under section 253 by virtue of an order under subsection (I), the company may claim for such loss and the Minister of Finance, on the recommendation of the Commission and in accordance with such regulations as the Governor in Council may make in that regard, may, out of the Consolidated Revenue Fund, cause to be paid to the company an amount not exceeding the actual loss of the company, as determined by the Commission, attributable to the operation of that line or segment in the financial year of the company, or part thereof, for which the actual loss is claimed.

It is common ground that the Estevan subdivi sion of the appellant's railway was the subject of an order under subsection 258(1) and that no regulations have been made by the Governor in Council under subsection 258(2).

Under that subsection, the Commission has jurisdiction to determine "the actual loss of the company". In the absence of rules of procedure for the presentation of claims it would, in my opinion, be open to a railway company, under this subsec tion, to apply to the Commission to make such a determination and to request an appropriate recommendation to the Minister of Finance, whether or not the claim had been previously made directly to the Minister. In the present instance the record does not disclose what procedure was fol lowed but does indicate that the claims in question for the years 1970-1974 inclusive, in respect of the Estevan subdivision, had been paid. It is to be assumed, therefore, that at some stage "the actual loss of the company", for which the claims were asserted, had been determined by the Commission.

I have some doubt that what is contained in the Committee's decision with respect to the Estevan subdivision is a decision or an order within the meaning of subsection 64(2) of the National Transportation Act from which an appeal may be taken, since it is not a formal order of the Com mission and does not purport to determine "the actual loss of the company" in respect of which the

claims were made. It does, however, appear to have been intended to finally determine a method to be followed in re-computing the appellant's claims under subsection 258(2) in respect of the Estevan subdivision for all years, including years prior to 1975, and to require the appellant to re-file its claims for subsidies which, for the years prior to 1975, had already been approved and paid. In so far as this determination applied to claims for the years 1975 to 1977 inclusive, there is no problem. The railway companies had proposed a basis of computation and that the claims should be re-filed. Moreover, the appellant had subsequently withdrawn its claims. But in so far as the decision applied to years prior to 1975, the appellant had made no such proposal and it is now faced with a directive of the Committee which, whether or not it has been incorporated in a formal order, the appellant cannot ignore. No objection was taken in the memorandum of fact and law filed on behalf of the Attorney General of Canada that the decision was not a decision or order from which an appeal under subsection 64(2) would lie and I did not understand counsel to so argue on the hearing of the appeal. I propose, therefore, to deal with the matter on the basis that an appeal does lie from that part of the decision which requires the appel lant to re-file its claims for the years prior to 1975.

In the view I take, the Commission's earlier determination under subsection 258(2) of the Railway Act of the appellant's "actual loss" from the operation of the Bienfait-Kemnay segment of the Estevan subdivision for the years in question was an order or decision within the meaning of section 63 of the National Transportation Act.' I prefer to think of it as a decision rather than an order but the difference is not significant. What is significant is that it was an order or decision that, under that provision, the Commission had jurisdic tion to review and to rescind, change, alter or vary. Moreover, as the determination was one that the Commission had jurisdiction to make on the

I 63. The Commission may review, rescind, change, alter or vary any order or decision made by it, or may re-hear any application before deciding it.

application of the appellant, the initiation of a review of its correctness was a matter that the Commission had jurisdiction, under section 48 of the National Transportation Act, 2 to inquire into, hear and determine of its own motion. In the exercise of that jurisdiction, the Commission, in my opinion, has ample authority, under subsection 45(3) of the National Transportation Act, 3 to require the appellant to provide evidence of facts relevant to the matter to be determined. I see no reason to doubt that the Commission can also require the appellant to provide particulars which it considers necessary for the purpose of reviewing and determining whether any change or variation of the earlier determination ought to be made.

But that is not what, as I interpret it, is being required of the appellant. What, in my view, is being required is that the appellant file anew, nunc pro tunc, a revised claim in respect of losses which have already been claimed, determined and paid. The appellant is thus being forced to assert a claim which it does not choose to assert; one that, if asserted, would be in respect of an obligation that, from its point of view, has already been discharged and which, if it is to serve any purpose, will have to be computed on a different basis and be different from the claim or claims previously asserted.

There is, in my opinion, no provision or rule under which the Commission can require or compel a railway company against its will to file a claim under subsection 258(2) if the company does not elect to do so. The right to claim is its own, to be exercised or not as the company decides. For the same reason, in my opinion, the company cannot be compelled to file a new or different claim. Nothing in section 48 or section 63 author

2 48. The Commission may, of its own motion, or shall, upon the request of the Minister, inquire into, hear and determine any matter or thing that, under this Part or the Railway Act, it may inquire into, hear and determine upon application or complaint, and with respect thereto, has the same powers as, upon any application or complaint, are vested in it by this Act.

3 45. ...

(3) The Commission, as respects the attendance and exami nation of witnesses, the production and inspection of docu ments, the enforcement of its orders, the entry on and inspec tion of property, and other matters necessary or proper for the due exercise of its jurisdiction, has all such powers, rights and privileges as are vested in a superior court.

izes such an order. Moreover it is not a new or different claim that may be reviewed and varied or changed under section 63. What may be dealt with under that section is a previous order or decision of the Commission.

When a claim has been filed, the Commission may, no doubt, exercise its statutory powers with respect to that claim and in the process may call for whatever information it requires to carry out its functions. Further, when the information has been obtained, the Commission can proceed to deal with the claim in the manner that is appropri ate and under section 63 the Commission may subsequently review and vary or change its deci sion. But that is a different thing from requiring a claimant to assert at either stage a new and differ ent claim to take the place of the claim it has filed (and upon which the claimant may prefer to stand or fall in the event of an appeal from the Commis sion's decision) when the claimant has not consent ed or proposed, as was the case with respect to the other segmentation claims, to compute on a differ ent basis and to re-file its claims.

The foregoing is, in my view, sufficient to dis pose of the appeal. On the face of it, the other question raised by the appellant, viz., "Did the Canadian Transport Commission err as a matter of law or jurisdiction in that by the above-men tioned decision it decided that the appellant must repay the monies lawfully paid to it in the circum stances set forth ..." does not arise from the rejection by the Commission of the appellant's proposal or from anything else contained in the decision. There has been neither an order to repay nor a variation or change, under section 63, of the earlier determination.

I would certify to the Commission that, in the opinion of the Court, the Railway Transport Com mittee had no jurisdiction to require the appellant to re-file claims under subsection 258(2) of the Railway Act for subsidies in respect of its losses from its operation of the Bienfait-Kemnay seg ment of the Estevan subdivision of its railway for the years 1970-1974 inclusive and the appellant cannot be required, by the Commission, to do so.

Having regard to Rule 1312, there should be no

order for costs.

* * *

The following are the reasons for judgment rendered in English by

HEALD J.: This is an appeal pursuant to section 64(2) of the National Transportation Act, with leave of this Court, on questions of law or jurisdic tion, from a decision of the Railway Transport Committee (R.T.C.) of the Canadian Transport Commission dated January 22, 1979.

The relevant facts surrounding the proceedings before the R.T.C. may be summarized as follows. The Estevan, Saskatchewan subdivision of the appellant's railway system was designated by the Governor in Council as a branch line that shall not be abandoned, pursuant to the provisions of section 258(1)(a) of the Railway Act, R.S.C. 1970, c. R-2. 4

Pursuant to the provisions of section 258(2) of the Railway Act, the appellant claimed, for the

4 Said section 258 reads as follows:

258. (I) Notwithstanding anything in sections 252 to 257,

the Governor in Council may, from time to time, by order,

(a) designate branch lines that shall not be abandoned within such periods as the Governor in Council may prescribe; and

(b) designate areas within which branch lines shall not be abandoned within such periods as the Governor in Council may prescribe;

(2) Where a branch line or any segment thereof is being operated after the 22nd day of March 1967 at an actual loss and the company operating that line or segment thereof is unable to make an application for abandonment under sec tion 253 by virtue of an order under subsection (1), the company may claim for such loss and the Minister of Finance, on the recommendation of the Commission and in accordance with such regulations as the Governor in Council may make in that regard, may, out of the Consolidated Revenue Fund, cause to be paid to the company an amount not exceeding the actual loss of the company, as determined by the Commission, attributable to the operation of that line or segment in the financial year of the company, or part thereof, for which the actual loss is claimed.

years 1970 to 1974 inclusive, its actual losses attributable to the Bienfait, Saskatchewan to Kemnay, Manitoba portion of the Estevan subdivi sion rail line which, in its view, was a segment of a branch line within the meaning of said section 258(2). Pursuant to the provisions of section 258(2), the Minister of Finance paid to the appel lant approximately 2.5 million dollars in respect of the Bienfait-Kemnay portion of the Estevan sub division rail line for the years 1970 to 1974 inclusive.

By a letter dated May 30, 1978 to the R.T.C. the appellant withdrew its claims for actual losses for said portion of the Estevan subdivision rail line for the years 1975 to 1977 inclusive.

The question of the propriety of the method being used by the appellant (along with the Canadian National Railways and Northern Alber- ta Railways) to claim subsidies for branch lines "frozen" by Order in Council pursuant to section 258 of the Railway Act, was raised by the respond ent Commission at least as early as the summer of 1975. In October of 1975, the appellant requested the Commission to "re-examine this issue".

So far as the record before the Court discloses, 5 the next event relevant to this appeal, to occur, was the request by the appellant to the R.T.C., in the early summer of 1977, that it expedite the claim of the appellant under section 258 for the segment of the Estevan subdivision between Bienfait and Kemnay. The R.T.C. replied to this request by a letter to the appellant dated July 22, 1977. The pertinent portion of that letter reads as follows:

In analysing your final claim in respect of this line, it was noted, for the first time, that profitable traffic just beyond Bienfait on the Estevan Subdivision was excluded from the calculations since you had segmented the line so that the point of origin was not included in the segment claimed for. In addition, your working papers were incomplete as they did not reflect the actual routing of this traffic and we had therefore assumed that it was routed to the main line via the Portal Subdivision, whereas the indications now are that this traffic is in actual fact shipped via the Estevan Subdivision.

5 I became apparent at the hearing of the appeal that the record before us was incomplete in so far as correspondence and records of meetings and discussions between the parties is concerned.

A number of similar cases of branch line segmentation have been identified and payment of claims is pending a policy decision by the RTC regarding the methodology to be applied in these cases. You will be notified of the Committee's decision when such is rendered.

By letter dated September 7, 1977, the R.T.C. sent to the appellant a rather lengthy document entitled "Subsidy Determination—Legal Issues" which had been prepared in the offices of the R.T.C. In that letter the R.T.C. proposed certain procedures for dealing with the questions in issue, including the hearing of representations by the appellant and the other railway companies involved in these issues. The appellant replied on October 13, 1977 and sent to the R.T.C. its "posi- tion paper" on the R.T.C. document referred to supra.

Thereafter a number of meetings between offi cials of the appellant and the R.T.C. were held between October 14, 1977 and January 20, 1978 to discuss the matters in issue, one of which was the "segmentation" issue. On January 26, 1978, the appellant sent a telex to the R.T.C. summari zing its position with respect to the proposed han dling of branch line compensation claims. That portion of the telex relating to the Estevan subdivi sion reads as follows:

C.P. Rail will not file for this subdivision from 1978 onward until the status of this line has been determined pursuant to discussions to be held with the R.T.C. Claims from 1970 to 1977 will stand.

Under date of March 7, 1978, the R.T.C. replied to the appellant's telex referred to supra. In that letter, the R.T.C. observed that, in its view, there were inconsistencies in the approach of the rail ways in three areas. One of the three areas referred to was the appellant's approach in respect of the Estevan subdivision. In that regard, the R.T.C. stated:

Based on previous discussions with CP regarding the Estevan subdivision, the Committee was of the opinion that this item was resolved. The Committee now wishes to ascertain why this particular line should receive treatment different from that you propose for the other "segmented" lines.

The letter then closed with the following paragraphs:

We have received from our staff an exposition and analysis of your latest positions which indicate that we are very close to agreement, the exceptions being the three aforementioned areas. The Committee feels, therefore, that it would be helpful if the Railways would review these lines in preparation for a

meeting at which a final clarification of positions might be achieved.

1 shall be contacting you in the next few days to ascertain your views and to arrange for the meeting, if such is necessary at the earliest possible date.

The next development, so far as the record before us discloses, is the letter from the appellant to the R.T.C. dated May 30, 1978 and referred to supra in which the appellant withdrew its claims for actual losses for the Estevan subdivision for the years 1975 to 1977 inclusive. That letter reads as follows:

I understand that there has been some discussion recently between our Mr. Frank Wallace and Mr. A. Johanson of the R.T.C. staff about the position of C.P. Rail in respect to its past claims for compensation relating to the Estevan Subdivision.

In order that the matter may be clarified once and for all the Company hereby withdraws the claims it has made under Section 258 of the Railway Act relating to the Estevan Subdivi sion for the years 1975, 1976 and 1977, which claims were, as I understand it, in the following amounts:

1975 $1,196,956

1976 $1,400,413

1977 $1,304,628

With the removal of this seeming obstacle the way should now be cleared for settlement of the outstanding subsidy and related issues that were the subject of our meetings with the R.T.C. last fall, at least insofar as they relate to C.P. Rail, and 1 would be obliged if you would so confirm.

The R.T.C. replied to the appellant's letter of May 30, 1978, by a letter dated June 9, 1978. That letter reads as follows:

This acknowledges the receipt of your letter dated May 30, 1978, in which you withdraw Canadian Pacific's subsidy claims under Section 258 of the Railway Act relating to the Estevan Subdivision for the years 1975, 1976 and 1977.

Since no mention is made regarding claims for the Estevan Subdivision in respect of the years 1974 and prior, we assume you intend that these claims remain unaltered and payments be finalized without regard to the "segmented" traffic. This course of action is contrary to the method proposed by the railways for all other "segmented" lines, wherein you have agreed to re-file all claims so that "segmented" portions of lines are included in your claims.

The Committee is in the final stages of deciding the main line/branch line, bridge traffic and segmentation issues and will be informing you of its decisions in the near future.

Thereafter, the record before us discloses nothing in the way of further meetings, discussions, or

correspondence relevant to the issues in this appeal.

The next relevant occurrence in the record before us is the "Decision" of the R.T.C. dated January 22, 1979 (A.B. pp. 67 to 99 inclusive). That "decision" purports to deal with three mat ters, namely:

(a) the distinction between a main line and a branch line;

(b) the issue of segmentation; and

The purpose of this "decision" as stated by the R.T.C. was as follows (A.B. p. 68):

The issuance of this decision, which resolves these issues, will result in the disposition of previously questionable subsidy claims and will provide the Railways with guidelines for use in the preparation of future subsidy claims.

The only portion of the "decision" which is the subject of appeal in these proceedings is that por tion dealing with the segmentation issue (A.B. pp. 84 to 91 inclusive). After observing that the R.T.C. had disallowed all outstanding unpaid claims where the segmentation issue was pertinent, the Committee said:

Approximately $25 million in disallowances are associated with the segmentation issue. However, the financial signifi cance of the issue is not fully reflected by this figure. Subsidy payments under Section 258 of the Railway Act have been made for Canadian Pacific Limited's Estevan Subdivision in respect of the years 1970 to 1974 inclusive. This line was later identified as a segmentation case and subsequent claims were disallowed in total. The final disposition of these past pay ments, amounting to approzimately [sic] 2.5 million dollars, is also a subject of this decision.

Then, after a detailed discussion of the issue, in which the appellant's submissions were rejected, the Committee purported to make the following order:

Claims on CP's Estevan Subdivision are to be refiled for all years claimed, regardless of whether payments have been made. No convincing arguments have been placed before the Commit tee to justify treating this line in a manner different from any other segmentation case, nor has Canadian Pacific Limited provided a compelling argument that claims for years prior to 1975 should be treated in a manner different from that for 1975 and subsequent years. Therefore, the Committee must reject Canadian Pacific Limited's proposal that they be allowed to retain all monies paid to date in respect of this Subdivision.

It is this "order" or "decision" which is attacked in this appeal.

It is the submission of the appellant that the Commission does not have the power or jurisdic tion under section 258(2) of the Railway Act or otherwise to order the appellant to re-file its claims for subsidy for the years 1970 to 1974 inclusive.

A consideration of the relevant provisions of both the Railway Act and the National Transpor tation Act impels me to the view that this submis sion has merit.

For a proper consideration of this issue, it is instructive, in my view, to compare the provisions of section 258 of the Railway Act (supra) with section 256 of that Act. Section 256 reads as follows:

256. (1) In this section

"claim period" means, in relation to any uneconomic line of railway, the period

(a) beginning ninety days after the date the application to abandon the line has been filed with the Commission in accordance with the rules and regulations of the Commis sion, and

(b) ending on

(i) the date fixed by the Commission, or as varied pursuant to section 64 of the National Transportation Act, for the abandonment of the branch line, or the last operated segment thereof, as the case may be, or

(ii) the date upon which an order fixing a date or dates for the abandonment of the line is rescinded by the Commis sion under section 254,

whichever date first occurs;

"fiscal period" means the period commencing on the 1st day of April in any year and ending on the 31st day of March in the following year;

"uneconomic line of railway" means a branch line that has been determined to be uneconomic by the Commission under section 254.

(2) When an uneconomic line of railway, or any segment thereof, is being operated within a claim period, the company operating it may file a claim with the Commission for the amount of any actual loss of the company attributable to the line in any financial year of the company within the claim period, or, where only part of a financial year is within the claim period, in that part thereof within the claim period.

(3) A claim under this section shall be filed with the Com mission not later than three months after the commencement of the fiscal period next following the financial year of the com pany in which the actual loss was incurred.

(4) The Commission shall examine the claim and shall certify the amount of the actual loss, if any, that in its opinion was attributable to the line and the Minister of Finance, on the recommendation of the Commission, may, in respect of the loss, cause to be paid to the company out of the Consolidated Revenue Fund an amount not exceeding the amount of the loss as certified by the Commission.

(5) Where any payment has been made under subsection (4), notice of the amount of the payment and of the total amount of all such payments in respect of the actual losses of the company attributable to the line in earlier years, if any, shall, in accord ance with any regulation of the Commission in that behalf,

(a) be posted by the company in all stations on the branch line in respect of which the payment was made; and

(b) be published by the company in at least one newspaper circulating in the area served by that branch line.

(6) The Commission may authorize and direct an adjustment to be made in any payment to a railway company in one fiscal period for or on account of an underpayment or overpayment made under this section to that company in an earlier fiscal period.

(7) In the determination of any actual loss for the purposes of section 253 or this section,

(a) the Commission may, subject to paragraph (b), include therein or exclude therefrom such items and factors relating to costs and revenues as to the Commission seem proper; and

(b) the Commission shall, in determining for the purposes of this subsection the items and factors that may be taken into account by it relating to revenues, have regard to any pay ments received by the company under section 272.

(8) Nothing in paragraph (7)(b) shall be construed as restricting or otherwise limiting the Commission in determin ing, for any of the purposes of this Act, the items and factors that may be taken into account by it relating to revenues.

Section 256 deals with the procedure to be fol lowed by railways making claims for actual losses incurred in the operation of branch lines or seg ments thereof which have not been "frozen" by Order in Council under section 258(1).

Section 258(2) sets out the procedure to be followed when claiming for actual losses incurred in the operation of branch lines or segments there-

of which have been "frozen" by Order in Council under section 258(1).

A comparison of the two sections reveals signifi cant differences. A section 256 claim must be filed with the Commission within a specified time period. In section 258(2) there is no requirement that the claim be filed with the Commission. I infer, rather, from the language used, that the claim is to be made to the Minister of Finance who acts on the recommendation of the Commission after it has determined the company's actual loss. Section 256 requires the Commission to "examine the claim". No such precise language is to be found in section 258. Section 256(6) gives the Commission power to direct an adjustment to be made for or on account of an underpayment or overpayment made under the section to a railway company in an earlier fiscal period. No corre sponding power is given to the Commission under section 258. However, the Minister of Finance on the recommendation of the Commission, has a similar power of adjustment in respect of pay ments made under section 258 pursuant to the provisions of section 413(5) of the Railway Act. 6

Accordingly, it is clear to me, that under section 258(2), the Commission performs a very limited, albeit very important twofold function. Firstly, it is required to determine the actual loss of the railway company for the fiscal period being claimed and thereafter, to make a recommendation to the Min ister of Finance with respect thereto. In the case at bar, the Commission performed its section 258(2) functions, by determining appellant's actual loss at approximately 2.5 million dollars for the period 1970 to 1974 inclusive. It then recommended pay ment accordingly and the Minister of Finance made payment accordingly. In my view, at that juncture, the Commission's powers and duties under section 258(2) were exhausted and at an end so far as this particular claim was concerned. In the decision herein impugned, it seeks to order the appellant to re-file its claims for the period 1970 to

6 413....

(5) The Minister of Finance on the recommendation of the Commission may make an adjustment in any payment to a railway company under this section or sections 256, 258, 261 and 272 in or for one year for or on account of an underpay- ment or overpayment made under this section in an earlier year.

1974. I can find no authority in section 258 or elsewhere in the Railway Act or the National Transportation Act upon which to base such an order. Section 258(2) allows the appellant to file a claim. It did so and the claim was dealt with and finalized. There is nothing in the language of the section which gives the Commission authority to require the filing of a new claim.

The respondent submits that section 63 of the National Transportation Act 7 would give to the Commission the power to do what it seeks to do in this order. I do not agree with this submission. The power to review, rescind, change, alter, or vary orders or decisions conferred on the Commission by section 63 must surely be confined to orders which the Commission is empowered to make. If the Commission has no power to order a re-filing, then the section 63 power to review such an order is of no assistance to it. It is important to realize that what the Commission was really doing here was not making a new determination or a re-deter mination of the appellant's actual loss but, rather, ordering the appellant to re-file its claim for loss. It may well be that if the Commission had made a re-determination of appellant's actual loss, it would have been acting within the powers given to it under section 63. On this question, I find it unnecessary to express a concluded opinion since, in my view, the Commission here was not rescind ing or altering a previous order competently made by it but was making an order which it did not have jurisdiction to make and, accordingly, section 63 has no application to the situation.

The other portion of the R.T.C.'s order which is impugned in this appeal is the sentence quoted supra and reading as follows:

Therefore, the Committee must reject Canadian Pacific's pro posal that they be allowed to retain all monies paid to date in respect of this Subdivision.

As I read this sentence, I do not perceive it to be an "... order, decision, rule or regulation" which can be the subject of an appeal to this Court under

7 Said section 63 reads as follows:

63. The Commission may review, rescind, change, alter or vary any order or decision made by it, or may re-hear any application before deciding it.

section 64(2) of the National Transportation Act. It seems rather to be a rejection of a proposal and an expression of opinion rather than a binding order or decision. It is therefore my view that with respect to this sentence, the Court is without juris diction to certify an opinion to the Commission under section 64(2).

Accordingly, and for the foregoing reasons, I would certify to the Commission that, in the opin ion of the Court, the R.T.C. had no jurisdiction to require the appellant to re-file claims under section 258(2) of the Railway Act for subsidies in respect of its losses from its operation of the Bienfait- Kemnay segment of the Estevan subdivision of its railway for the years 1970 to 1974 inclusive, and the appellant cannot be required by the Commis sion to do so.

* * *

The following are the reasons for judgment rendered in English by

KERR D.J. (dissenting): This is an appeal from a certain portion of a 28 page decision (so en titled), dated January 22, 1979, of the Railway Transport Committee of the Canadian Transport Commission, which refers to and indicates that the Committee is reviewing claims made by Canadian Pacific for loss sustained by it in the years 1970 to 1974, inclusive, in respect of a segment of its Estevan subdivision, which claims had, prior to the decision, been paid by the Minister of Finance to Canadian Pacific on the recommendation of the Commission pursuant to section 258(2) of the Railway Act.

It is undisputed that:

(a) Canadian Pacific's Estevan subdivision was designated pursuant to section 258(1) of the Railway Act as a line that shall not be abandoned,

(b) Canadian Pacific filed, under section 258(2), for each year 1970 to 1974, inclusive, subsidy claims for actual losses attributable to the operation of the Bienfait-Kemnay segment of the Estevan subdivision with the Commission, and

(c) upon recommendation of the Commission and pursuant to section 258(2), the Minister of Finance caused to be paid to Canadian Pacific approximately 2.5 million dollars in respect of the said claims.

It does not appear that the Commission or the Committee made any order additional or supple mentary to the decision. Canadian Pacific treats the portion of the decision appealed from as being an order, and its notice of appeal states the follow ing question of law or of jurisdiction:

Did the Canadian Transport Commission err as a matter of law or jurisdiction in that by the above-mentioned Decision it

1. Ordered the Appellant to refile claims made by it for actual loss sustained in the years 1970 to 1974, inclusive, in respect of a segment of its branch line of railway, viz, the Bienfait-Kem- nay portion of the Estevan Subdivision, situated in the Province of Saskatchewan, which claims had, previously to the Decision, been allowed and lawfully paid by the Minister of Finance to the Appellant on the recommendation of the Respondent Com mission pursuant to the provisions of Section 258(2) of the Railway Act, R.S.C. 1970, c.R-2?

and

2. Decided that the Appellant must repay the moneys lawfully paid to it in the circumstanced [sic] set forth in paragraph (I) above?

The Railway Transport Committee is a committee established pursuant to section 24 of the National Transportation Act, R.S.C. 1970, c. N-17. Subsec tions (1) and (3) are as follows:

24. (1) For the purposes of performing its duties under this Act the Commission shall establish the following committees consisting of not less than three commissioners, exclusive of the President who shall be ex officio a member of every such committee:

(a) railway transport committee;

(b) air transport committee;

(d) motor vehicle transport committee;

(e) commodity pipeline transport committee; and

(f) such other committees as the Commission deems expedient.

(3) Notwithstanding anything in the Railway Act or the National Energy Board Act governing matters before the Com mission, a committee of the Commission may, in accordance with the rules and regulations of the Commission, exercise all the powers and duties of the Commission and the orders, rules or directions made or issued by a committee of the Commission have effect, subject to subsection (4), as though they were made or issued by the Commission.

Sections 256 to 263, inclusive, of the Railway Act deal with uneconomic railway branch lines and uneconomic passenger train services, their aban donment and discontinuance, and determination and payment of claims for the amounts of actual losses of the railway companies attributable to the lines and services.

The segment of Canadian Pacific's Estevan sub division to which this appeal relates comes under section 258. That section and section 252 are as follows:

252. In this section and sections 253 to 258,

"actual loss", in relation to any branch line means the excess of

(a) the costs incurred by the company in any financial year thereof in the operation of the line and in the movement of traffic originating or terminating on the line,

over

(b) the revenues of the company for that year from the operation of the line and from the movement of traffic originating or terminating on the line;

"branch line" means a line of railway in Canada of a railway company that is subject to the jurisdiction of Parliament that, relative to a main line within the company's railway system in Canada of which it forms a part, is a subsidiary, secondary, local or feeder line of railway, and includes a part of any such subsidiary, secondary, local or feeder line of railway.

258. (1) Notwithstanding anything in sections 252 to 257, the Governor in Council may, from time to time, by order,

(a) designate branch lines that shall not be abandoned within such periods as the Governor in Council may prescribe; and

(b) designate areas within which branch lines shall not be abandoned within such periods as the Governor in Council may prescribe;

(2) Where a branch line or any segment thereof is being operated after the 22nd day of March 1967 at an actual loss and the company operating that line or segment thereof is unable to make an application for abandonment under section 253 by virtue of an order under subsection (1), the company may claim for such loss and the Minister of Finance, on the recommendation of the Commission and in accordance with such regulations as the Governor in Council may make in that regard, may, out of the Consolidated Revenue Fund, cause to be paid to the company an amount not exceeding the actual loss of the company, as determined by the Commission, attributable to the operation of that line or segment in the financial year of

the company, or part thereof, for which the actual loss is claimed.

For convenience, I shall next indicate certain provisions of the National Transportation Act that appear to be relevant for consideration in dealing with this appeal.

21. It is the duty of the Commission to perform the functions vested in the Commission by this Act, the Railway Act, the Aeronautics Act and the Transport Act with the object of coordinating and harmonizing the operations of all carriers engaged in transport by railways, water, aircraft, extraprovin- cial motor vehicle transport and commodity pipelines; and the Commission shall give to this Act, the Railway Act, the Aeronautics Act and the Transport Act such fair interpretation as will best attain that object.

48. The Commission may, of its own motion, or shall, upon the request of the Minister, inquire into, hear and determine any matter or thing that, under this Part or the Railway Act, it may inquire into, hear and determine upon application or complaint, and with respect thereto has the same powers as, upon any application or complaint, are vested in it by this Act.

49. Any power or authority vested in the Commission may, though not so expressed, be exercised from time to time, or at any time, as the occasion may require.

63. The Commission may review, rescind, change, alter or vary any order or decision made by it, or may re-hear any application before deciding it.

Section 64(2) provides for an appeal from the Commission to the Federal Court of Appeal, with leave, upon a question of law or a question of jurisdiction, from an order, decision, rule or regu lation sought to be appealed from.

As appears from the decision and the material in the Appeal Book, the Committee had encountered three major problems in dealing with claims by the railway companies under sections 256 and 258 of the Railway Act. The decision commences with an "Introduction", the first two paragraphs of which are as follows:

INTRODUCTION

Under the provisions of Sections 256 and 258 of the Railway Act, the Railways are entitled to submit subsidy claims, pre pared in accordance with the Cost Order R-6313, for losses incurred in the operation of uneconomic branch lines. Of the claims which the Railways have submitted over the years pursuant to these sections of the Act, some 97% of the total dollars claimed are in respect of lines in the three Prairie Provinces. In reviewing these claims and determining the

amounts of subsidy payable, the Committee has encountered three major problems with the Railways' approach requiring further consideration and final resolution. Firstly, claims have been submitted for rail lines whose characteristics are such that they may not qualify as branch lines pursuant to Section 252 of the Railway Act. A second group of claims has been submitted for segments of railway lines such that certain traffic, which would appear to be totally dependent upon these lines, has been excluded from the claims. Finally, some claims have been submitted for lines which perform a bridge function for a considerable portion of the traffic carried, yet all of the costs and revenues of this traffic have not been included in the calculation of the actual loss for these lines. The latter two approaches may not be in accordance with the intent of the Railway Act and/or the Cost Order.

The foregoing issues requiring resolution have been referred to as:

—The Main Line/Branch Line issue

—The Segmentation Issue

—The Bridge Traffic Issue

The record shows that there was correspondence between the Committee and railway companies, and meetings, conferences and discussions. Numerous branch lines and segments thereof were involved, with consequent problems as to the kinds of traffic and the kinds of expenses and revenues, and the amounts thereof, to be considered and included or excluded, in deciding "actual loss". Quite a few millions of dollars were claimed. It is not surprising that the Committee felt that it should review the problems with the benefit of experience.

What the Committee calls the "Segmentation Issue" is dealt with at pages 16 to 21 of the decision, pages 84 to 91 of the Appeal Book. The last four paragraphs thereof are as follows:

isolated from the rest of the network, if the claimed segment of line were abandoned.

The Committee is of the opinion that where the abandon ment of part of a branch line will result in the de facto abandonment of another part of the branch line, common sense dictates that the application for abandonment must be con sidered in respect of both parts. In establishing this principle we are doing no more than ensuring compliance with the Railway Act which prohibits the abandonment of the operation of a branch line or a part thereof without the prior approval of the Committee.

In order to finalize past claims the Railways must refile all claims on lines where segmentation problems now exist. Fur thermore, where this issue arises in future branch line subsidy claims, each line will be evaluated on a case-by-case basis and all factors which are relevant to a decision on each case will be considered.

On my appreciation of the submissions made on behalf of Canadian Pacific at the hearing of this appeal the principal points are succinctly set forth in its memorandum of points of argument filed by its general solicitor with the Court, and they are as follows:

15. The Commission, once having made a determination with respect to the actual losses incurred by the Appellant resulting from operations of the Bienfait-Kemnay portion of Appellant Estevan Subidivision, for the years 1970 to 1974 inclusive, and having recommended payment thereof to the Minister of Finance the whole in accordance with the provisions of Section 258(2) of the Railway Act, R.S.C. 1970 c.R-2, the Commission is functus officio with respect to such claims of the Appellant.

17. The validity of the claims filed by the Appellant for the years 1970 to 1974 inclusive, as aforesaid, are not in any manner impugned by the Decision of the Railway Transport Committee nor is the validity of the claims filed by the Appellant in any manner in issue before this Honourable Court.

18. The provisions of subsection 6 of Section 256 of the Railway Act, R.S.C. 1970, c.R-2, dealing as they do with the

right of the Commission to authorize and direct adjustments to be made with respect to overpayments or underpayments, are not authority for the proposition that the Commission may order the Appellant to refile its claims for previous years.

20. The dispositive of the Decision of the Commission to oblige the Appellant to refile for all years claimed in respect of the Estevan Subdivision, when read together with the Commis sion's rejection of the Appellant's proposal that they be allowed to retain all monies paid to date in respect of the aforesaid subdivision is evidently an attempt by the Commission to exercise its powers under Section 63 of the National Transpor tation Act, R.S.C. 1970, c.N-17, to retroactively review, rescind, change, alter or vary its recommendation for payment originally made with respect to the claims filed by the Appellant.

21. Neither the language of Section 63 of the National Transportation Act, R.S.C. 1970, c.N-17, nor any other rele vant provision of the Railway Act, R.S.C. 1970, c.R-2, allow for a retroactive operation.

Section 63 of the National Transportation Act has the same words as did the former section 52 of the Railway Act, R.S.C. 1952, c. 234, in its applica tion to the Board of Transport Commissioners for Canada. A number of court decisions were referred to during the argument in this appeal.

Although the facts in those cases were not simi lar to the facts in this appeal, the corresponding power to review and vary in the Railway Act was considered in The Toronto Transportation Com mission v. Canadian National Railways [1930] S.C.R. 94, affirmed sub nom. Canadian Pacific Railway Company v. Toronto Transportation Commission [1930] A.C. (P.C.) 686, a decision of long standing in which Anglin C.J., delivering the judgment of the Supreme Court of Canada, said at page 99:

By s. 51 the Board is empowered to "review, rescind, change, alter or vary any order or decision made by it * * *." With respect to any matter already dealt with by it, this section enables the Board to make any order in review which it might have made were such matter res integra. No doubt this power should be exercised sparingly and circumspectly, as the Chief Commissioner's judgment shews he realized. But whether cir cumstances exist which justify its use must be a matter almost exclusively within the Board's discretion. It is difficult to appreciate how the exercise of this power in an order otherwise unexceptionable can per se give rise to a question of jurisdiction.

and Mignault J. (dissenting in other respects) said at page 104:

Section 51 of the Railway Act enacts that

the Board may review, rescind, change, alter or vary any order or decision made by it, or may rehear any application before deciding it.

This language seems wide enough to allow the Board to alter or vary its decision. Of course, as observed by Mr. Commission er Boyce, the power to re-open or review any matter already passed upon should not be exercised unless there is clearly a doubt in the mind of the Board as to the correctness of the former decision, or there be submitted new facts not before the Board at the time the decision was made, or unless the condi tions have changed. But this does not go to the jurisdiction of the Board, which is the only point with which we are concerned. And I think section 51 permitted the Board to alter its previous decision, if it had jurisdiction otherwise to make the order complained of.

I have no doubt that the Commission has wide powers under the plain words of section 63 to review, change, alter or vary a decision made by it. One of the issues in this appeal is whether the power to review and vary extends to the prior determinations of the losses incurred by Canadian Pacific on its Estevan subdivision in the years 1970 to 1974 inclusive for which payments were made.

There are similarities and differences in sections 256, 258 and 261 of the Railway Act. In respect of claims for subsidies payable under section 256 for actual losses of branch lines that the Commission has determined to be uneconomic, subsection (4) provides as follows:

256....

Section 261(4) has similar wording in respect of claims for actual losses attributable to uneconomic passenger train services.

Section 256 and section 261 each has a subsec tion (6) as follows:

(6) The Commission may authorize and direct an adjustment to be made in any payment to a railway company in one fiscal period for or on account of an underpayment or overpayment

made under this section to that company in an earlier fiscal period.

Another kind of subsidy was provided by section 413 of the Railway Act, and subsection (5) made provision for adjustments by the Minister of Finance on the recommendation of the Commis sion for underpayments and overpayments. Sub section (5) is as follows:

413... .

It is seen that sections 256 and 261 require that the Commission shall "certify the amount of the actual loss .. . that in its opinion was attribut able ..." to the branch line or passenger train service. Section 258(2) uses somewhat different words, namely, the actual loss of the company "as determined by the Commission".

Another difference between sections 256 and 261 and section 258 is that section 258 does not contain any provision for or reference to adjust ments for prior underpayments or overpayments.

Section 63 of the National Transportation Act is a general empowering section of long standing in the regulation of railways.

Although the draftsman, as I have stated includ ed provisions for adjustments of underpayments and overpayments of subsidies in certain sections of the Railway Act and did not include them in section 258, I think that it should not be inferred therefrom that the Commission's power to review conferred in section 63 of the National Transpor tation Act does not apply to its prior determina tions of the losses on the Estevan subdivision in the years 1970 to 1974.

The Commission's obligation under section 258 is to determine actual loss and to make a recom mendation to the Minister of Finance in that respect. If, after determining the loss, it seems to the Commission that the amount as determined by

it was too small or too large, I think that the Commission has power under section 63 aforesaid to review the matter and make a new determina tion of the loss. That is my opinion, having regard to the objectives of the National Transportation Act and the declaration of national transportation policy in it, the wide range of regulatory powers and responsibilities expressly entrusted to the Commission by that Act and by the Railway Act, and reading the said sections 63 and 258 in their context and in their natural and ordinary sense.

By filing the initial claims, thereby claiming subsidies, Canadian Pacific called for the exercise by the Commission of its responsibility to make a determination of the actual loss for each year and the determination became subject to applicable provisions of the governing statutes, including the power of the Commission to review its determina tions.

I express no opinion as to what remedial action can be taken if the Committee on such a review varies the amount of any actual loss previously determined by it. The Committee in its decision said that it must reject Canadian Pacific's pro posal that it be allowed to retain all money paid to it in respect of the subdivision. Canadian Pacific's notice of appeal states that the Committee decided that the company must repay the money. I do not think that the decision goes that far. The Commit tee's function is to determine actual loss and make a recommendation to the Minister of Finance.

Although it seems to me that Canadian Pacific's objection to the decision is essentially that the Commission does not have power to review its prior determinations of actual losses on the Estevan subdivision for the years 1970 to 1974, there is the company's contention that the Com mission does not have power to order it to re-file subsidy claims for those years.

The decision states that in order to finalize past claims the railway companies must re-file all claims on lines where segmentation problems now exist, and it specifically states that claims on the Estevan subdivision are to be re-filed for all years

claimed regardless of whether payments of subsidy had been made.

The decision indicates that approximately $25 million in disallowances are associated with the segmentation issue; that subsidy payments under section 258 of the Railway Act were made for Canadian Pacific's Estevan subdivision in respect of the years 1970 to 1974; that this line was later identified as a segmentation case and subsequent claims were disallowed in total; and that the final disposition of these past payments is a subject of the decision.

Canadian Pacific has withdrawn its claims for that subdivision for 1975 and subsequent years, but has left the Committee to struggle with its prior determinations of losses for the years 1970 to 1974. Canadian Pacific initiated the claims for subsidies for each of those 1970 to 1974 years. The Committee has concluded that it should review its prior determinations of the losses.

Neither the Railway Act nor the National Transportation Act indicates the method or proce dure to be followed by the Commission in dis charging its responsibility to determine actual losses where railway companies are claiming subsi dies for uneconomic branch lines, nor the proce dure to be followed by the Commission in review ing a previous determination of that kind.

The responsibility imposed upon the Commis sion to determine actual losses carries with it such power as is reasonably necessary for the efficient and expeditious performance of its responsibility. It has power to make orders applying generally or to a particular situation. In my view, the method and procedure must be largely left to the judg ment, experience and expertise of the Commission.

On the material before this Court, my apprecia tion is that the Committee, with good reason, had concluded that it should review its determinations of Canadian Pacific's Estevan subdivision losses for the years 1970 to 1974, and that its task of

determining them correctly would be best served or at least facilitated by a re-filing of claims. I take for granted that the intention is that the re-filed claims will include the traffic, expenses and revenues proper to be considered in the deter mination of actual losses. I cannot say that its conclusion is unreasonable or that in the circum stances the Committee did not have power to order re-filing for that purpose.

There remains a question, raised at the hearing of the appeal, whether prior to the issuance of the decision, Canadian Pacific had been given a fair chance to be heard by the Committee on the question of its power to review its earlier determi nations of the amounts of actual loss for which payments had been made. The notice of appeal is dated June 8, 1979. The decision was given on January 22, 1979. In that interval Canadian Pacif ic did not raise with the Committee any such question or request to be allowed to be heard in respect of it. No claim that there was a denial of natural justice or unfairness was made by the company in its memorandum of points of argu ment filed with this Court.

On the material before the Court, I am not persuaded that there was any such unfairness or denial of natural justice.

I would dismiss the appeal.

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