A-879-77
Corporation of the City of Windsor, Robert Fran-
cis Girard, Gordon Henderson and James Bricker
(Applicants) (Appellants)
v.
Canadian Transport Commission (Railway Trans
port Committee) (Respondent)
Court of Appeal, Urie and Ryan JJ. and Kelly
D.J.—Toronto, June 12, 13 and 14, 1979.
Practice — Appeals rendered academic by decision made by
Railway Transport Committee of Canadian Transport Com
mission following completion of the very hearings appellants
asked Trial Division to prohibit — Trial Division's refusal led
to these appeals — Dismissal by this Court for leave to appeal
on merits is a decision of the Court — Rule 1103(3) does not
provide the Court with the requisite authority to rehear the
application after the decision was rendered — Federal Court
Rule 1103(3).
APPEAL.
COUNSEL:
R. Rolls, Q.C. and R. G. Colantti for
applicants.
No one appearing for respondent.
N. A. Chalmers, Q.C. for Canadian Pacific
Limited.
SOLICITORS:
Fasken & Calvin, Toronto, for applicants.
Miss D. Silverstone, c/o Canadian Transport
Commission, Ottawa, for respondent.
N. A. Chalmers, Q. C., Toronto, for Canadian
Pacific Limited.
The following are the reasons for judgment of
the Court delivered orally in English by
URIE J.: This appeal and A-95-78 which were
argued together and upon which counsel for the
respondent did not appear and counsel for Canadi-
an Pacific Limited was not called, will be dealt
with herein together. Notwithstanding the ingeni
ous arguments of counsel for the appellants both
on the question of the right of the appellants, in
the circumstances, to continue the appeals and on
the merits thereof, we are all of the opinion that
they must be dismissed. In our view, both appeals
were rendered academic by virtue of the decision
of the Railway Transport Committee of the
Canadian Transport Commission rendered on
December 21, 1977, which decision was made
following completion of the very hearings which
the appellants asked the Trial Division to prohibit.
The refusal of Mahoney J. and Cattanach J., to do
so led to these appeals.
In so far as the appellants' application that we
rehear the application for leave to appeal the April
21, 1977 decision, is concerned, we are all of the
view that the dismissal by this Court of that
application on its merits is a decision of the Court
and that Rule 1103(3) does not, as asserted by
appellants' counsel, provide us with the requisite
authority to do so after that decision had been
rendered.
We are further of the opinion that since the
intervener, Canadian Pacific Limited, did not raise
the question of the appeals having become aca
demic until opening of argument of the appeal, it
ought not to be entitled to its costs of the appeals.
Accordingly, the appeals will be dismissed with
out costs.
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