A-10-74
The Center for Public Interest Law (Petitioner)
v.
The Canadian Transport Commission (Respond-
ent)
and
Bell Canada (Mise en cause)
Court of Appeal, Urie, Addy and Decary JJ.—
Montreal, February 22, 1974.
Judicial review—Refusal of Telecommunication Commit
tee to stay proceedings for determination of a question of
law—Whether "decision" subject to review—Canadian
Transport Commission General Rule 510, Federal Court
Act, s. 28.
The Telecommunication Committee of the Canadian
Transport Commission in its discretion under Rule 510 of
the Canadian Transport Commission General Rules refused
a motion to stay proceedings to determine a question of law
before the commencement of the hearing of an amended
application made by Bell Canada for increases in its rates
and tariffs. An application to quash a section 28 application
for review of that refusal was allowed on the ground that
this Court has no jurisdiction under section 28(1) to set
aside that ruling. "The object of section 28 is more effec
tively achieved by leaving the right to invoke judicial review
to the stage after the tribunal has rendered its decision."
In re Anti-dumping Act and in re Danmor Shoe Co. Ltd.
[1974] F.C. 22, followed.
APPLICATION to quash section 28 application.
COUNSEL:
Ronald I. Cohen and Pamela Sigurdson for
petitioner.
W. G. St. John for respondent.
E. Saunders, Q.C., and R. O'Brien, Q.C.,
for mise en cause.
SOLICITORS:
Sigurdson and Cohen, Montreal, for
petitioner.
The Canadian Transport Commission,
Ottawa, for respondent.
G. Houle, Montreal, for mise en cause.
URIE J. (orally)—This is an application by the
mise en cause, Bell Canada, to quash an applica
tion by the Center for Public Interest Law made
pursuant to section 28 of the Federal Court Act,
to review and set aside a decision of the Tele
communication Committee of the Canadian
Transport Commission dated December 21,
1973, arising out of a motion made pursuant to
Rule 510 of the Canadian Transport Commis
sion General Rules to decide, as a preliminary
matter of law, before the commencement of the
hearing of Amended Application B made by
Bell Canada for increases in its rates and tariffs
that the said application B was, in fact, an
appeal from a previous decision of the Commit
tee and not a new application.
In my view the reasoning of Jackett C.J. in his
reasons for judgment in this Court in In re
Anti-dumping Act and in re Danmor Shoe Co.
Ltd. [1974] F.C. 22 rendered on January 24,
1974, is applicable in this case. The gist of that
decision is that a tribunal such as the Telecom
munication Committee of the Canadian Trans
port Commission has a principal jurisdiction to
make decisions or orders, and, as part of the
process leading to the making of such decisions
or orders, it has jurisdiction to conduct hearings
as required by law and to make rulings inciden
tal to the conduct of such hearings "that may,
after the matter has been decided, be a basis for
setting aside the ultimate "decision" on the
ground that, by virtue of such rulings the tri
bunal, in making the decision attached failed to
observe a principle of natural justice."
It is useful in rendering judgment on these
applications, we think, to repeat Jackett C.J.'s
analysis of the objects of section 28 of the
Federal Court Act as set forth in the Appendix
to his reasons for judgment in In re Anti-dump
ing Act and in re Danmor Shoe Co. Ltd. [1974]
F.C. 22 and in particular the following passage
found at pages 34 and 35 thereof:
In my view, the object of sections 18 and 28 of the Federal
Court Act is to provide a speedy and effective judicial
supervision of the work of federal boards, commissions and
other tribunals with a minimum of interference with the
work of those tribunals. Applying section 11 of the Interpre
tation Act, with that object in mind, to the question raised
by these section 28 applications, it must be recognized that
the lack of a right to have the Court review the position
taken by a tribunal as to its jurisdiction or as to some
procedural matter, at an early stage in a hearing, may well
result, in some cases, in expensive hearings being abortive.
On the other hand, a right, vested in a party who is reluctant
to have the tribunal finish its job, to have the Court review
separately each position taken, or ruling made, by a tribunal
in the course of a long hearing would, in effect, be a right
vested in such a party to frustrate the work of the tribunal.
On balance, it would seem that the object of section 28 is
more effectively achieved by leaving the right to invoke
judicial review to the stage after the tribunal has rendered
its decision. There will then have been no unnecessary delay
in cases where the tribunal has been guilty of no error in its
intermediate positions and rulings and, even when the tri
bunal has erred at an intermediate stage, in the vast majority
of cases, such errors will not have affected the ultimate
result in such a way as to warrant invoking judicial review.
Admitting that there may be problems that should be solved
judicially at an intermediate stage, surely no party should
have the right to decide whether a situation has arisen in
which that should be done. It is not without interest, in this
connection, that Parliament has given the tribunal the neces
sary discretion to deal with such problems.
On the basis of all of the foregoing, therefore,
I am of the opinion that the application of the
mise en cause, Bell Canada, to quash the section
28 application should be granted on the ground
that this Court has no jurisdiction under section
28(1) to set aside the ruling referred to in it.
* * *
ADDY J. concurred.
* * *
DECARY J.—I concur with the result pertain
ing to the application made under the provisions
of section 28 of the Federal Court Act and a
motion to quash that application under section
52(a) of the Federal Court Act because this
application is premature up to the time the
Canadian Transportation Commission shall have
rendered its decision on the rates and tariffs
applied for by Bell Canada. My remarks are no
reflection on the merits of the application.
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.