T-1611-79
Consumers' Association of Canada (Applicant)
v.
Canadian Transport Commission, Air Canada, CP
Air, Pacific Western Airlines, Transair Ltd., Nor-
dair Ltd., Quebecair Ltd. and Eastern Provincial
Airways (Respondents)
Trial Division, Mahoney J.—Ottawa, March 29
and April 2, 1979.
Prerogative writs — Prohibition and certiorari — Applicant,
intervening in hearing to consider general air fare increases,
denied two week adjournment by Canadian Transport Com
mission — Adjournment requested to permit analysis of docu
ments produced by Airlines — Scope of hearings expanded to
consider two Airlines' proposed discount fares with notice only
given to participants in hearing considering general fare
increase — Whether or not prohibition should be granted to
prevent hearings continuing and whether or not certiorari
should be granted quashing the decision to deny the adjourn
ment — Federal Court Act, R.S.C. 1970 (2nd Supp.). c. 10, s.
18.
The applicant seeks an order or orders under section 18 of
the Federal Court Act for a writ of prohibition prohibiting the
Canadian Transport Commission from proceeding with a hear
ing presently before it and for a writ of certiorari quashing its
decision denying applicant's request for a two week adjourn
ment. The hearing was to consider the Airlines' filing of tariffs
proposing a fare increase, which in the absence of action by the
Commission prior to January 1, 1979, would come into effect
automatically. The scope of the hearing was later extended to
consider two Airlines' proposals for fare discounts. In this
proceeding, applicant's principal ground for seeking an
adjournment was the necessity of a reasonable time to permit
analysis of material provided it by the Airlines and to permit
applicant to prepare both its cross-examination of their wit
nesses and its own preparation. The second ground, which was
not considered by the Board in its decision to deny the adjourn
ment, was the inadequacy of the notice of the extended scope of
the hearing.
Held, the application is dismissed. The Commission correctly
identified the first ground as the applicant's principal ground
for seeking adjournment, and giving due consideration to the
competing interests before it, exercised its discretion entirely
properly. It decided to proceed with the Airlines' evidence and
cross-examinations by the interveners leaving open the opportu
nity of an adjournment at a later stage should that procedure or
the additional material demonstrate its need. The refusal to
adjourn is not on that ground "tainted with unfairness or denial
of natural justice". Although the Commission is not required
by law to hold a public hearing in respect of tariff filings as
these, it is authorized by law to do so. In the absence of
statutory authority to the contrary, there is no basis for con-
cluding that, since it is decided to hold such a hearing, the same
criteria do not apply as to the one that was required to be held.
The applicant does not oppose the discounts. The Commission
knew that and, in the circumstance, it cannot be said that a
refusal to adjourn the hearing on the second ground was tainted
with unfairness or denial of natural justice to the applicant.
APPLICATION.
COUNSEL:
Brian A. Crane, Q.C. and H. G. Intven for
applicant.
G. W. Nadeau and Gregory Tardi for Canadi-
an Transport Commission.
Marshal Rothstein and Guy Delisle for Air
Canada.
John B. Hamilton, Q.C. for CP Air.
J. C. Major, Q.C. for Pacific Western Air
lines and Transair Ltd.
Brian G. Armstrong for Nordair Ltd.
J. E. Martin for Quebecair Ltd.
R. G. Belfoi, Q.C. and J. H. Smellie for
Eastern Provincial Airways.
SOLICITORS:
Gowling & Henderson, Ottawa, for applicant.
Canadian Transport Commission, Hull, for
itself.
Air Canada, Montreal, for itself.
Hamilton, Torrance, Stinson, Campbell,
Nobbs & Woods, Toronto, for CP Air.
Jones, Black & Company, Calgary, for Pacif
ic Western Airlines and Transair Ltd.
Perry, Farley & Onyschuk, Toronto, for Nor-
dair Ltd.
Quebecair Ltd., Montreal, for itself.
Herridge, Tolmie, Ottawa, for Eastern Pro
vincial Airways.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The applicant seeks an order or
orders under section 18 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, for a writ of
prohibition prohibiting the respondent, Canadian
Transport Commission (hereinafter "the Commis-
sion"), from proceeding with a hearing presently
before it and for a writ of certiorari quashing its
decision of March 27, 1979, denying the appli
cant's request of a two week adjournment. It also
sought, and the respondents agreed to, an order
abridging the time for return of the motion. While
I will refer to the Commission throughout these
reasons, what was done was by its Air Transport
Committee performing the Commission's func
tions.
The respondents, other than the Commission,
(hereinafter "the Airlines"), had filed tariffs with
the Commission which would, in the absence of
action by the Commission prior to January 1,
1979, have come into effect automatically. Those
filings involved a proposed general domestic fare
increase of approximately 5% (hereinafter "the
general increase"). The Commission suspended the
filings until April 1, 1979, and directed the Air
lines to file up-dated supporting financial informa
tion by March 15. The Commission then decided
to hold public hearings on the general increase
and, on February 22, published a notice of a public
hearing to commence March 26 (hereinafter "the
general increase hearing").
On March 12, the applicant filed an interven
tion statement with the Commission in respect of
the general increase hearing and served, on the
Commission and Airlines, an application for pro
duction and inspection of documents with attached
interrogatories which went well beyond what the
Airlines had already filed, or proposed to file, in
support of the general increase, with the Commis
sion. The applicant also filed, on March 12, an
application for the adjournment of the general
increase hearing to permit it to receive the request
ed material and to prepare for cross-examination
of the Airlines' witnesses as well as its own case for
the hearing. The material which the Airlines filed
in support of the general increase was, in due
course, made available to the applicant.
On or about March 13, the Commission decided
to extend the scope of the public hearing to
embrace certain additional tariff filings recently
made by the Airlines, other than Nordair, Quebec-
air and Eastern Provincial Airways. These filings
involved the "seat sale" or "deep discount" fares
proposed by Air Canada for the current spring and
CP Air's matching fares as well as certain other
proposed discount fares (hereinafter collectively
"the discounts"). An amended notice of public
hearing was issued March 14 whereby the dis
counts were added to the general increase as the
subject matter of the general increase hearing.
That amended notice appears not to have been
published other than privately to those already
involved in the general increase hearing. (There
are interveners other than the applicant who are
not party to these proceedings.) The applicant's
first intimation of the extended scope of the gener
al increase hearing was as a result of a reference to
it in the telex of March 20 whereby the Commis
sion communicated its refusal of the applicant's
March 12 adjournment application. The amended
notice itself, mailed by the Commission on March
14, was delivered to the applicant on March 21.
The March 20 telex also directed the applicant
and Airlines to deal directly in so far as the
additional documents and the interrogatories were
concerned, deferring any order the Commission
might make until representations could be made at
the opening of the general increase hearing. In the
result, Air Canada was the only Airline to supply
that material prior to the hearing. It did so on
March 25. CP Air tried to do so but was unable to
get together with the applicant. In supplying its
material, Air Canada did not admit its relevance
to the general increase hearing.
The hearing began March 26 and the greater
part of the day was taken up by the applicant's
application for production and a new motion for
adjournment. The day ended with the Commission
ordering the Airlines to produce to each other, and
other interveners not party to this proceeding, and
to the Commission all documents they were pre
pared to produce to the applicant. By the time the
hearing resumed, at 1:00 p.m. March 27, some
additional material had been delivered and more
was then delivered by the Airlines, other than Air
Canada. Again, its relevance was not admitted.
The motion for adjournment, and the reasons
advanced therefor, occupy the transcript of the
March 26 hearing from page 6, line 29, to page 37,
line 9. Of the various grounds then advanced, two
are relied on in this proceeding: (1) the necessity
of a reasonable time to permit analysis of the
material provided by Air Canada March 25 and
the other Airlines later to permit the applicant to
prepare both its cross-examination of their wit
nesses and its own presentation, and (2) the
inadequacy of notice of the extended scope of the
hearing. The decision refusing the motion to
adjourn, and the reasons therefor, occupy the
March 27 transcript from page 151, line 8, to page
156, line 8. It is unnecessary to recite the decision
and reasons here. Suffice it to say, the Commission
did not, in its reasons, mention the second ground.
Correctly identifying the first of the above
grounds as the applicant's principal ground for
seeking an adjournment, and giving due consider
ation to the competing interests before it, the
Commission exercised its discretion entirely prop
erly. It decided to proceed with the Airlines' evi
dence and cross-examination by the interveners
leaving open the opportunity of an adjournment at
a later stage should that procedure or the addition
al material demonstrate its need. The refusal to
adjourn is not, on that ground "tainted with
unfairness or denial of natural justice", to adopt
the language of my brother Collier.' Short of that,
the Court will not interfere with the decision of a
tribunal to refuse a motion to adjourn proceedings
properly before it.
1 Union of British Columbia Indian Chiefs v. West Coast
Transmission Co. Ltd. Court No. T-4347-77. Unreported deci
sion rendered December 7, 1977.
The second ground is quite another matter. The
Commission is not required by law to hold a public
hearing in respect of tariff filings such as these; it
is, however, authorized by law to do so. In the
absence of statutory provisions to the contrary, I
see no basis for concluding that, once it is decided
to hold such a hearing, the same criteria do not
apply as to one that was required to be held. Those
criteria were spelled out by the Chief Justice in
delivering the judgment of the Federal Court of
Appeal in In re Canadian Radio-Television Com
mission and in re London Cable TV Limited. 2
In my view, at the very minimum, what the statute required, by
requiring a "public hearing", was a hearing at which, subject to
the procedural rules of the Commission and the inherent juris
diction of the Commission to control its own proceedings, every
member of the public would have a status "to bring before" the
Commission anything relevant to the subject matter of the
hearing so as to ensure that, to the extent possible, everything
that might appropriately be taken into consideration would be
before the Commission, or its Executive Committee, when the
application for the amendment was dealt with. To be such a
public hearing, it would, in my view, have had to be arranged in
such a way as to provide members of the public with a
reasonable opportunity to know the subject matter of the
hearing, and what it involved from the point of view of the
public, in sufficient time to decide whether or not to exercise
their statutory right of presentation and to prepare themselves
for the task of presentation if they decided to make a presenta
tion. In other words, what the statute contemplates, in my view,
is a meaningful hearing that would be calculated to aid the
Commission, or its Executive Committee, to reach a conclusion
that reflects a consideration of the public interest as well as a
consideration of the private interest of the licensee; it does not
contemplate a public meeting at which members of the public
are merely given an opportunity to "blow off steam".
The discounts have no apparent direct connec
tion with the general increase other, perhaps, than
a relationship of convenience: the Commission was
holding a public hearing anyway and some, at
least, of those interested in the general increase
were also interested in the discounts. For whatever
reason, it may have appeared necessary, desirable
or expedient to hold a public hearing with respect
to the discounts. It may be questioned, in view of
the manner of publication of the amended notice,
that the "public" has been notified at all of that
public hearing.
2 [1976] 2 F.C. 621 at 624 ff.
Neither the decision to extend the scope of the
general increase hearing nor the decision to limit
publication of the amended notice are challenged
here. The decision in issue is the refusal to
adjourn.
The pertinent statutory provision is section 69 of
the National Transportation Act. 3
69. Unless otherwise provided, fifteen days notice of any
application to the Commission, or of any hearing by the
Commission, is sufficient, but the Commission may in any case
direct longer notice or allow notice for any period less than
fifteen days.
The applicant had, at most, six and, at least, five
days' notice. The Commission had the authority to
abridge the notice period to that extent.
The applicant does not oppose the discounts.
The Commission knew that and, in that circum
stance, it cannot be said that a refusal to adjourn
the hearing on the second ground was tainted with
unfairness or denial of natural justice to the appli
cant. The applicant cannot appropriate to itself the
unfairness or denial of natural justice that might
be found, in the process adopted, to be a sufficient
cause for the Court to interfere at the behest of
others of the "public".
The application has already been dismissed in so
far as it relates to the subject matter of the
original notice of hearing published February 22,
1979. I did that because I considered that subject
matter severable from the subject matter of the
amended notice dated March 14. In the result, I
make no finding on that point.
ORDER
The application is dismissed without costs.
3 R.S.C. 1970, c. N-17.
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.