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T-1246-85
Canadian Pacific Express & Transport Ltd., Direct Transportation Systems Ltd., Kingsway Transports Ltd., T.N.T. Canada Inc., Commercial Truck Co. Ltd. (Plaintiffs)
v.
Motor Carrier Commission (Defendant)
and
266936 B.C. Ltd., Custom Couriers Services Ltd., Yellow Freight System, Inc. (Intervenors)
Trial Division, Joyal J.—Vancouver, September 9; Ottawa, October 22, 1985.
Jurisdiction Federal Court Trial Division Attribu tion by Parliament of federal functions pertaining to interpro- vincial trucking to provincially established and constituted Commission not making latter federal commission within Fed eral Court Act s. 2 and not giving Federal Court jurisdiction Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 18
Motor Vehicle Transport Act, R.S.C. 1970, c. M-14, s. 3 Motor Carrier Act, R.S.B.C. 1979, c. 286 The British North America Act, 1867, 30 & 31 Vict., c. 3 (U.K.) IR.S.C. 1970, Appendix II, No. 51 (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1), s. 101.
Constitutional law Distribution of powers Interprovin- cial trucking Attribution of federal functions to provincially established Commission not making latter federal commission
Such attribution not unconstitutional delegation of powers but constitutionally valid adoption by Parliament of provincial legislation for purposes of regulation of interprovincial truck ing Motor Vehicle Transport Act, R.S.C. 1970, c. M-14, s. 3 Motor Carrier Act, R.S.B.C. 1979, c. 286 The British North America Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 51 (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1), s. 101 Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 18.
The plaintiffs are all licensed to carry on interprovincial trucking by the Motor Carrier Commission of British Columbia. They applied to this Court for declaratory and injunctive relief, certiorari and mandamus in an attack against terms of their licenses which were causing them serious grievance.
The intervenors seek to have the action struck out or dis missed as against the defendant Commission on the grounds that this Court lacks jurisdiction to hear this matter.
The main issue is whether the Commission is a "federal board, commission or other tribunal" within the meaning of section 2 of the Federal Court Act.
Held, the plaintiffs' claim should be struck.
Instead of creating a federal agency to deal with the regula tion of interprovincial trucking, Parliament has adopted a provision permitting provincial transport boards in each prov ince to deal with it. The Supreme Court of Canada has held in Coughlin that this is not an unconstitutional delegation of law-making power but the constitutionally valid adoption by Parliament of provincial legislation. One might think that this would make the provincial legislation valid federal legislation under section 101 of the B.N.A.A. and hence, the provincial Commission, a federal body, it has been repeatedly held that the attribution of federal functions to a provincially established and constituted regulatory agency does not make it a "federal board, commission or other tribunal" as defined in section 2 of the Federal Court Act.
Even if one were to conclude that such a provincial board is a kind of persona designata, an agent of Parliament called upon to exercise federal functions and that it is thereby a board duly constituted by an Act of Parliament, the answer to the question of whether the Commission is a "federal board, commission or other tribunal" is to be found in the definition as set out in section 2 of the Federal Court Act, and nowhere else. And that definition expressly excludes "any such body constituted or established by or under a law of a province". The test is not to determine if the provincial board exercises federal powers, but if it is constituted or established pursuant to a provincial enactment.
CASES JUDICIALLY CONSIDERED FOLLOWED:
Re Bicknell Freighters Ltd. and Highway Transport Board of Manitoba (1977), 77 D.L.R. (3d) 417 (Man. C.A.); C.P. Transport Co. Ltd. v. Highway Traffic Bd., [1976] 5 W.W.R. 541 (Sask. C.A.).
APPLIED:
Coughlin v. Ontario Highway Transport Board et al., [1968] S.C.R. 569; Carruthers v. Therapeutic Abortion Committees, [1983] 2 F.C. 581 (F.C.T.D.); Attorney- General for Ontario v. Israel Winner, [1954] A.C. 541 (P.C.).
REFERRED TO:
P.E.I. Potato Marketing Board v. Willis, [1952] 2 S.C.R. 392; Attorney-General for British Columbia v. Attorney-General for Canada, [1937] A.C. 377 (P.C.); McNamara Construction (Western) Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654; 75 D.L.R. (3d) 273.
COUNSEL:
T. G. Lewis for plaintiffs.
C. Donald MacKinnon for intervenor 266936 B.C. Ltd.
F. M. Turco for intervenor Custom Couriers Services Ltd.
SOLICITORS:
Macdonald, Kwan & Lewis, Vancouver, for plaintiffs.
Boughton & Company, Vancouver, for inter- venor 266936 B.C. Ltd.
Turco, Moscovich, Sabatino & Aikenhead, Vancouver, for intervenor Custom Couriers Services Ltd.
The following are the reasons for order ren dered in English by
JOYAL J.: The intervenors apply to this Court to have the action instituted by the plaintiffs struck out or dismissed as against the defendant, the Motor Carrier Commission, on the grounds that this Court has no jurisdiction to hear and deter mine the issues raised by the plaintiffs and that the plaintiffs lack status or locus standi to sue.
Prior to the application being heard in Vancou- ver on September 9, 1985, counsel for the plain tiffs and for the intervenors had provided the Court with written briefs arid copies of relevant authorities. I found this material of great assist ance to me and I am grateful to counsel for it.
This issue before the Court may be briefly stated. The plaintiffs are all licensed by the Motor Carrier Commission of British Columbia to run motor transport into and out of British Columbia. The intervenor, Custom Couriers Services Ltd., is also a licensee of the Motor Carrier Commission. The terms of its licence are allegedly causing the plaintiffs serious grievance. As a result, the plain tiffs have applied to this Court for the following relief:
(a) A declaration that the Conditions of Licence issued by the Motor Carrier Commission printed pursuant to the application of the Defendant, Custom Couriers, dated October 22, 1979, contain the restriction:
"Service Authorized under this clause is restricted to shipments no single piece of which shall exceed 50 lbs. (22.68 kgs) in weight or any shipment to exceed 100 lbs. (45.36 kgs)."
(b) In the alternative, a declaration that the Conditions of Licence printed pursuant to the application of the Defen dant, Custom Couriers dated October 22, 1979 is null and void and of no force and effect.
(c) An interim and permanent injunction restraining the Defendants, Custom Couriers and 266936 from offering or conducting transportation for compensation to the general public pursuant to Clause 3 of the printed Conditions of Licence of the Defendant, Custom Couriers.
(d) A Writ of Certiorari quashing clause 3 of the Conditions of Licence wrongfully issued by the Motor Carrier Branch in respect to the application of the Defendant, Custom Couriers published as No. 942/79.
(e) A Writ of Mandamus compelling the Defendant, The Motor Carrier Branch in respect to the application of the Defendant, Custom Couriers published as No. 942/79.
(f) Damages;
(g) Costs;
(h) Such further and other relief as to this Honourable Court may seem meet and just.
The applicants/intervenors attack the jurisdic tion of this Court on the grounds that the Motor Carrier Commission of British Columbia is neither a federal board, commission or other tribunal as those terms are defined in section 2 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. This subsection states:
"federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of the Parliament of Canada, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of The British North America Act, 1867;
As a consequence, the intervenors allege, the remedy provided in section 18 of the Act is not available to the plaintiffs.
The plaintiffs contend, however, that in the particular exercise of its jurisdiction in the case at bar, the Motor Carrier Commission of British Columbia is in fact and in law acting as a federal board, commission 6r other tribunal. It is not disputed, counsel for the plaintiffs allege, that the jurisdiction of the Motor Carrier Commission to deal with the license of the Custom Couriers Ser-
vices Ltd. rests not on a provincial statute regulat ing commercial motor transportation within the province of British Columbia but on a federal statute, namely the Motor Vehicle Transport Act, R.S.C. 1970, c. M-14, where jurisdiction over interprovincial trucking finds its statutory expres sion. That the federal Parliament has jurisdiction in this respect was firmly established in the cele brated case of Attorney-General for Ontario v. Israel Winner, [1954] A.C. 541 (P.C.).
For policy reasons, however, Parliament has decided not to create a distinct federal agency or board to deal with the regulation of interprovincial trucking. Instead, it adopted a provision permitting provincial transport boards in each province to deal with it. The provision is section 3 of the Motor Vehicle Transport Act which reads as follows:
3. (1) Where in any province a licence is by the law of the province required for the operation of a local undertaking, no person shall operate an extra-provincial undertaking in that province unless he holds a licence issued under the authority of this Act.
(2) The provincial transport board in each province may in its discretion issue a licence to a person to operate an extra-pro vincial undertaking into or through the province upon the like terms and conditions and in the like manner as if the extra-pro vincial undertaking operated in the province were a local undertaking.
This manner of regulating interprovincial truck ing has been defined by the Supreme Court of Canada in Coughlin v. Ontario Highway Trans port Board et al., [1968] S.C.R. 569, at page 575, as follows:
In my opinion there is here no delegation of law-making power, but rather the adoption by Parliament, in the exercice of its exclusive power, of the legislation of another body as it may from time to time exist, a course which has been held constitu tionally valid by this Court in Attorney General for Ontario v. Scott ([1956] S.C.R. 137, 114 C.C.C. 224, 1 D.L.R.(2d) 433) and by the Court of Appeal for Ontario in Regina v. Glibbery ([1963] 1 O.R. 232, [1963] 1 C.C.C. 101, 38 C.R. 5, 36 D.L.R. (2d) 548).
Plaintiffs contend that this adoption of the legis lation of another body, namely the Motor Carrier Act, R.S.B.C. 1979, c. 286, brings the Motor Carrier Commission created thereunder under the aegis of section 2 of the Federal Court Act.
Before reviewing the case law with respect to the foregoing section, I might observe that the juris diction of the Federal Court of Canada is founded on statute, the Federal Court Act. This statute, in turn, is founded on section 101 of The British North America Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1), dealing with the federal power to establish courts for the better administration of the laws of Canada. The Supreme Court of Canada, per Laskin C.J., made it quite clear in McNamara Construction (West- ern) Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654; 75 D.L.R. (3d) 273, at page 658 S.C.R; 277 D.L.R., that the provisions of section 101 of The British North America Act, 1867:
... make it a prerequisite to the exercise of jurisdiction by the Federal Court that there be existing and applicable federal law which can be invoked to support any proceedings before it. It is not enough that the Parliament of Canada have legislative jurisdiction in respect of some matter which is the subject of litigation in the Federal Court.
The Chief Justice went on to say:
... judicial jurisdiction contemplated by s. 101 is not co-exten sive with federal legislative jurisdiction.
At pages 659-660 S.C.R.; 278 D.L.R. of his rea sons for judgment, he further stated:
What must be decided in the present appeals, therefore, is not whether the Crown's action is in respect of matters that are within federal legislative jurisdiction but whether it is founded on existing federal law. I do not think that s. 17(4), read literally, is valid federal legislation under s. 101 of the British North America Act in purporting to give jurisdiction to the Federal Court to entertain any type of civil action simply because the Crown in right of Canada asserts a claim as plaintiff. The common law rule that the Crown may sue in any Court having jurisdiction in the particular matter, developed in unitary England, has no unlimited application to federal Canada where legislative and executive powers are distributed between the central and provincial levels of legislature and government and where, moreover, there is a constitutional limitation on the power of Parliament to establish Courts.
For the plaintiffs to succeed in the present motion, they contend that the Motor Carrier Act of British Columbia, by virtue of section 3 of the federal statute, the Motor Vehicle Transport Act, is valid federal legislation. In such a manner, the
Motor Carrier Commission becomes a federal board, commission or tribunal, as defined in section 2 of the Federal Court Act.
There is undeniable logic in the plaintiffs' con tention. The Motor Carrier Commission's jurisdic tion over interprovincial trucking in British Columbia is not founded on provincial competence in that field but on the adoption by Parliament of a British Columbia statute as such statute might exist from time to time. As a consequence, such a statute becomes a federal statute and the Motor Carrier Commission becomes for purposes of sec tion 2 of the Federal Court Act, a federal board, commission or other tribunal.
The case for the plaintiffs, however, is not one which has found favour with our courts. The Sas- katchewan Court of Appeal in C.P. Transport Co. Ltd. v. Highway Traffic Bd., [1976] 5 W.W.R. 541, decided against Federal Court jurisdiction in a matter brought before the Court of Queen's Bench of the Province. Culliton C.J. stated at page 547:
It is beyond dispute that the board is a body constituted and established under The Vehicles Act, a law of the Province of Saskatchewan. While subs. (2) of s. 3 of the Motor Vehicle Transport Act provides that the provincial transport board may, in its discretion, issue a licence to permit an extra-provin cial undertaking to operate into or through the province, that in no way alters the basic nature and character of the provincial board; it is still a body constituted and established by and under the law of the province. That being so, in the clear language of the definition in s. 2, it is not a "federal board, commission or other tribunal" as therein defined. The jurisdiction, therefore, in the matter involved in this action is not given by s. 18 to the exclusive jurisdiction of the Federal Court as contended by the appellant, but rests in, and remains with, the Court of Queen's Bench of Saskatchewan.
The Manitoba Court of Appeal also came to the same conclusion in Re Bicknell Freighters Ltd. and Highway Transport Board of Manitoba (1977), 77 D.L.R. (3d) 417. The Court in that case considered the C.P. Transport Co. Ltd. case (supra), the Supreme Court of Canada decision in the Coughlin case (supra) and concluded that the Manitoba Transport Board was provincially estab lished and constituted and was not for that reason a "federal board, commission or other tribunal".
A more recent decision is from this Court in Carruthers v. Therapeutic Abortion Committees, [1983] 2 F.C. 581 (F.C.T.D.) when my brother Collier found that such therapeutic abortion com mittees, although constituted under particular provisions of the Criminal Code [R.S.C. 1970, c. C-34] and therefore founded on a valid federal enactment, did not make of them federal boards, commissions or other tribunals within the meaning of the Federal Court Act.
There can be no serious dispute that the legisla tion of British Columbia setting up the Motor Carrier Commission is similar to Ontario legisla tion, Saskatchewan legislation and Manitoba legis lation creating their own provincial regulatory agencies.
The process by which these provincial boards regulate interprovincial transport is the same in all cases. Both the Court of Appeal of Manitoba and the Court of Appeal in Saskatchewan have ruled that this responsibility did not make of their respective regulatory agencies a "federal board, commission or other tribunal" as defined in section 2 of the Federal Court Act. All parties will recog nize that these decisions are not only persuasive but come rather close to being conclusive of the issue.
The situation facing the plaintiffs brings to mind G.K. Chesterton's pithy comment that "if a dog be born in a stable, it does not make it a horse". So, if a provincial board be instructed to carry on federal functions, it does not make it a federal board. Nevertheless, out of respect for the thorough argu ment advanced by plaintiffs' counsel, I am pre pared to indulge in some observations gleaned from the Coughlin case (supra) which might bring doubt to Chesterton's dictum and otherwise give support to the plaintiffs' position.
The Coughlin case was a test as to the constitu tionality of section 3 of the Motor Vehicle Trans port Act, the Supreme Court of Canada splitting five to two on it, Martland and Ritchie JJ. dissent ing. In his minority reasons, Ritchie J. attacked the constitutional validity of the section on the
grounds that it constituted a delegation of a feder al legislative authority to the province of Ontario, a power which is constitutionally denied to either a provincial legislature or the federal Parliament. He found for true delegation on the point that the federal statute did not merely appoint a provincial agency with the authority to exercise regulatory functions to further national policies on interpro- vincial trucking but had delegated to it both the establishment of such policies and the means of implementing them.
The majority of the Court, however, found otherwise and the constitutionality of section 3 of the Motor Vehicle Transport Act was upheld. Cartwright J., for the majority, stated at page 575:
In the case before us the respondent Board derives no power from the Legislature of Ontario to regulate or deal with the inter-provincial carriage of goods. Its wide powers in that regard are conferred upon it by Parliament. Parliament has seen fit to enact that in the exercise of those powers the Board shall proceed in the same manner as that prescribed from time to time by the Legislature for its dealings with intra-provincial carriage. Parliament can at any time terminate the powers of the Board in regard to inter-provincial carriage or alter the manner in which those powers are to be exercised. Should occasion for immediate action arise the Governor General in Council may act under s. 5 of the Motor Vehicle Transport Act.
One effect on this passage in the judgment is to confer on a provincial board federal duties and functions, a technique similar to that found in section 2 of The Agricultural Products Marketing Act, S.C. 1949, c. 16 and which was tested in P.E.I. Potato Marketing Board v. Willis, [1952] 2 S.C.R. 392.
The other effect of this passage is to open the door again to plaintiffs' argument which is essen tially that no matter what one calls the provincial board, and no matter what the provincial statute creating it might be, such a board, in the process of regulating interprovincial motor transport, must by necessity if not by definition, constitute a feder al board. Without federal legislation appointing it, and directing it to look after interprovincial truck ing affairs, the board is bereft of any legislative base or of any statutory title.
The comments of Cartwright J. are specially relevant in this regard when he suggests that sec tion 3 merely authorizes that the regulatory pro cess of a provincial board shall apply, the federal Parliament reserving for itself at all times the right to terminate the powers of the provincial board or alter the manner in which those powers are to be exercised. It is evident that this is the kind of control which Parliament or the Governor in Council exercises over all duly constituted federal boards and agencies. It is the kind of control without which, I venture to suggest, section 3 might not enjoy constitutional validity. One might conclude, therefore, that a provincial board is a kind of persona designata, an agent or instrument of Parliament called upon to exercise federal func tions and it is thereby a board duly constituted by an Act of Parliament.
No doubt, Parliament was extremely careful in drafting the Motor Vehicle Transport Act. It respected the warning given to it by Lord Atkin in Attorney-General for British Columbia v. Attor- ney-General for Canada, [1937] A.C. 377 (P.C.), when he said at page 389:
Unless and until a change is made in the respective legislative functions of Dominion and Province it may well be that satis factory results for both can only be obtained by co-operation. But the legislation will have to be carefully framed, and will not be achieved by either party leaving its own sphere and encroaching upon that of the other. (My emphasis.)
The point could then be made that the only way Parliament could avoid the stigma of delegation in its scheme was to make of these provincial boards federal ones or, to give the lie to Chesterton's aphorism, make of his dog a horse.
This approach, in my view, might have beguiling attraction but in the process of exploring it, one might already have drifted too far away from the text of the Federal Court Act where it states in section 2 what is meant by a "federal board, commission or other tribunal". The opening words of the definition speak of a board, commission or other tribunal exercising powers conferred by an Act of Parliament. No doubt, the Motor Carrier Commission, in regulating interprovincial truck ing, is exercising powers conferred by the federal Motor Vehicle Transport Act. The definition,
however, goes on to say "other than any such body constituted or established by or under a law of a province ...." Interpreting these words in their ordinary meaning, it would exclude a board con stituted by a provincial legislature whether or not such a board was or was not "exercising ... powers conferred by or under an Act of Parliament
The French text of the definition is equally authoritative and is equally explicit. It states that:
"office, commission ou autre tribunal fédéral" désigne un organisme ... exerçant ou prétendant exercer une compétence ou des pouvoirs conférés par une loi du Parlement du Canada ... a l'exclusion des organismes de ce genre constitués ou établis par une loi d'une province ou sous le régime d'une telle loi ... (My emphasis.)
As I read the French text, it seems clear that the test is not to determine if a provincial board exercises federal powers, but to decide if such a board is constituted or established pursuant to a provincial enactment.
On the facts before me, it seems clear that the Motor Carrier Commission of British Columbia, albeit exercising jurisdiction and powers under federal law, is nevertheless constituted or estab lished under the Motor Carrier Act. In the circum stances, it is excluded (as the French text makes it clear) from the scope of the definition.
In the event, I must subscribe to the finding of Culliton C.J. in the C.P. Transport Co. Ltd. case (supra) at page 546 that "whether the board or the person is a `federal board, commission or other tribunal' lies to be determined from the definition as set out in s. 2 of the Federal Court Act." According to this definition, the Motor Carrier Commission cannot be brought within its ambit.
The plaintiffs' claim is therefore struck out. In the event, it is unnecessary, and perhaps unwise, for me to traverse the other ground raised by the intervenors, namely the status of the plaintiffs in launching their action.
Costs to the applicants/intervenors.
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