T-1883-83
Canadian Pacific Limited (Applicant)
v.
Canadian Transport Commission (Respondent)
Trial Division, Strayer J.—Ottawa, August 29, 30
and September 2, 1983.
Judicial review — Prerogative writs — Prohibition and
certiorari — Whether jurisdiction in Canadian Transport
Commission or Railway Transport Committee to conduct
public inquiry into railway accident following investigators'
report — Interpretation of s. 226 of Railway Act — No denial
of natural justice so far, as sufficient notice given to interested
parties; as for future, denial only apprehended — Rules of
natural justice not applicable to parts of recommendations
concerning making of orders and proposing regulations as such
functions legislative in nature — Application dismissed —
Railway Act, R.S.C. 1970, c. R-2, ss. 226, 227 — National
Transportation Act, R.S.C. 1970, c. N-17. ss. 5, 17, 24, 45 (as
am. by S.C. 1977-78, c. 22, s. 18(1)), 48 (rep. and sub. idem,
s. 18(2)), 55 (as am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 65
(Item 32)), 64(2) (as am. idem), 74, 81, 82 (as am. by S.C.
1977-78, c. 22, s. 18(4)) — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, ss. 18, 28, 29 — Canadian Transport
Commission General Rules, SOR/83-448, ss. 3, 7(2).
Following a railway accident in which five people were killed
and nine injured, the Railway Transport Committee of the
Canadian Transport Commission appointed investigators to
inquire into its causes and into ways of preventing the recur
rence of such accidents. The Commission subsequently decided
to hold a public inquiry into the matter. At the first hearing,
the applicant objected to the proceeding, arguing that the
Committee lacked jurisdiction and that it would be difficult to
,have a fair hearing since the report contained nothing specific
against any of the parties concerned. The Committee rejected
these contentions.
This is an application for prohibition to prevent the public
inquiry from proceeding and for certiorari to quash the prelim
inary decisions of the Committee with respect to its jurisdiction
to proceed in this matter. The applicant argues (1) that section
226 of the Railway Act authorizes the holding of inquiries by
investigators only, not by the Commission nor the Committee;
(2) that the only action that can be taken under subsection
226(2) is to suspend or dismiss employees; (3) that to avoid
denying natural justice to the parties, the Committee should
proceed under sections 45 or 48 of the National Transportation
Act which require adequate notices to be given.
Held, the application should be dismissed.
The application is properly brought under section 18 of the
Federal Court Act as what is challenged is not a final order or
decision but preliminary rulings. As for the interpretation of
section 226, it is apparent from reading sections 5, 17, 81 and
82 of the National Transportation Act, that section 226 allows
the Committee to hold a "public inquiry". It is also clear that
subsection 226(2) contemplates a broader response than the
mere ordering of the suspension or dismissal of railway
employees.
There has been no denial of natural justice so far, the
concerned parties having received adequate notice; as for the
future, there can only be apprehension of such denial, which is
not sufficient for the Court to take action. Furthermore, the
rules of natural justice are not applicable to those parts of the
recommendations dealing with the making of orders and the
proposing of regulations because such functions are legislative
in nature.
CASES JUDICIALLY CONSIDERED
APPLIED:
The Attorney General of Canada v. Cylien, [1973] F.C.
1166 (C.A.); In re Anti-dumping Act and in re Danmor
Shoe Co. Ltd., [1974] 1 F.C. 22 (C.A.); Guay v. Lafleur,
[1965] S.C.R. 12; In re Daigle and in re Canadian
Transport Commission, [1975] F.C. 8 (C.A.); CRTC v.
CTV Television Network Ltd., et al., [1982] 1 S.C.R.
530.
COUNSEL:
N. D. Mullins, Q.C. and Marcella M. Szel for
applicant.
K. M. Bloodworth for respondent.
Grant Nerbas for Canadian National Rail
ways.
Jean Patenaude for VIA Rail Canada Inc.
A. Hepner for G. A. Grant.
SOLICITORS:
Canadian Pacific Law Department, Calgary,
for applicant.
Canadian Transport Commission Legal Ser
vices, Winnipeg, for respondent.
Canadian National Railways Law Depart
ment, Winnipeg, for Canadian National
Railways.
VIA Rail Canada Inc. Legal Department,
Montreal, for VIA Rail Canada Inc.
MacPherson & Associates, Calgary, for G. A.
Grant.
The following are the reasons for judgment
rendered in English by
STRAYER J.: This is an application for prohibi
tion to prevent the Railway Transport Committee
of the Canadian Transport Commission from pro
ceeding with a public inquiry concerning a certain
railway accident, and for certiorari to quash cer
tain preliminary decisions of the Committee with
respect to its jurisdiction to proceed in this matter.
The accident occurred on March 23, 1983 at
mileage 34.9, Canadian Pacific Limited, Red Deer
Subdivision, in the Province of Alberta. It involved
a VIA Rail diesel car, operated by the CPR under
contract with VIA, which was accidentally divert
ed into a siding where it collided with some sta
tionary tank cars. As a result five people were
killed and nine were injured.
On March 24, 1983, the Railway Transport
Committee made an order, purportedly under sec
tion 226 of the Railway Act [R.S.C. 1970, c. R-2],
appointing Mr. M. D. Lacombe and Mr. Joseph
Kolodrubsky "to inquire into the causes of and
circumstances connected with the aforesaid acci
dent, including all particulars relating thereto and
into all matters and things deemed likely to cause
or prevent such an accident". The investigators
conducted an extensive investigation which com
prised, according to their report, "the evaluation of
related correspondence; discussions, interviews or
formal statements taken under oath; and specific
detailed information acquired from ..." numerous
officials, employees of the Canadian Pacific Rail
way, and from the Canadian National Railways.
They noted that "the results of CP's investigation
could only be partially reviewed herein. Certain
specific data requested—such as employee state
ments were not made available to the authors due
to CP's claim that such information is privileged".
The investigators' report was issued on July 8.
In the meantime the Canadian Transport Com
mission, on June 14, 1983, had issued a "notice of
public hearing". The notice cited both the Railway
Act and the National Transportation Act [R.S.C.
1970, c. N-17] as authority and described the
inquiry as being "into the causes of and the cir
cumstances connected with the accident on March
23, 1983". The notice went on to explain that:
At the first session, the inquiry intends to hear evidence from
the persons appointed under section 226 of the Railway Act to
inquire into the subject accident. The inquiry will then be
adjourned to a later date at which time the inquiry will hear
relevant submissions and evidence from officers and employees
of the railway companies, and other persons possessing exper
tise, as well as members of the public.
It indicated that the investigators' report would be
available about ten days before the hearing, which
was fixed for July 19. It also indicated that "All
persons who wish to do so may present their views
on this matter during the inquiry."
On July 11, solicitors for Canadian Pacific Rail
way wrote to the Commission asking for particu
lars as to the specific jurisdiction or authority
under which the Canadian Transport Commission
was proceeding. In its reply of July 18, the CTC
referred to sections 226 and 227 of the Railway
Act and section 17 of the National Transportation
Act.
Section 226 of the Railway Act reads as follows:
226. (1) The Commission may appoint such person or per
sons as it thinks fit to inquire into all matters and things that it
deems likely to cause or prevent accidents, and the causes of
and the circumstances connected with any accident or casualty
to life or property occurring on any railway, and into all
particulars relating thereto.
(2) The person or persons so appointed shall report fully in
writing, to the Commission, his or their doings and opinions on
the matters respecting that he or they are appointed to inquire,
and the Commission may act upon such report and may order
the company to suspend or dismiss any employee of the com
pany whom it may deem to have been negligent or wilful in
respect of any such accident.
Section 227 authorizes the Commission to make
orders and regulations concerning a great variety
of matters specified therein. The main purpose of
such regulations appears to be to ensure the safety
of members of the public and employees of the
Railway.
Section 17 of the National Transportation Act
provides as follows:
17. (1) The commissioners shall sit at such times and con
duct their proceedings in such manner as may seem to them
most convenient for the speedy dispatch of business.
(2) They may, subject to this Act, sit either together or
separately, and either in private or in open court; but any
complaint made to them shall, on the application of any party
to the complaint, be heard and determined in open court.
Section 45 of that Act [as am. by S.C. 1977-78, c.
22, s. 18(1)], which appears in Part IV entitled
"GENERAL JURISDICTION AND POWERS IN
RESPECT OF RAILWAYS" empowers the Commis
sion to "inquire into, hear and determine" any
complaint that a railway company has failed to
carry out its responsibilities under the Railway Act
or any regulation thereunder, or has violated such
Act or regulation. The Commission is also empow
ered to order and require the company to take, or
refrain from, any relevant act. In performing these
functions it has the power of a superior court.
Section 48 of the National Transportation Act
[rep. and sub. S.C. 1977-78, c. 22, s. 18(2)]
empowers the Commission on its own motion to
inquire into, hear and determine any matter that
might have been the subject of such a complaint.
When the hearing of the Railway Transport
Committee opened in Calgary on July 19, 1983,
counsel for the CPR objected to the proceeding on
the grounds that the Committee lacked jurisdic
tion to proceed in this fashion. Counsel argued
that the Commission, or the Committee exercising
its powers, had no authority to hold a public
hearing upon receipt of a report. It was said that
all the Commission could do was to act on such a
report. It was further argued that the only action
the Commission or Committee could take would
be to order the company to dismiss an employee. It
was argued that section 17 of the National Trans
portation Act gave no independent authority to
hold a hearing. Further it was said that the report
of the investigators was not a report as contem
plated by section 226, as "it has no findings,
conclusions, or facts in it, and that the Commis
sion has nothing to act on with respect to those
matters". Counsel for the CPR also suggested that
it would be difficult to have a fair hearing where
there were no specific allegations, complaints, or
particulars given in the report against any one of
the parties concerned or referred to therein.
The Railway Transport Committee rejected
these contentions. It ruled that it had jurisdiction
to proceed with the public hearing. It also took the
view that under section 226 it had the power to
"act upon such report" in ways additional to
ordering the suspension or dismissal of an
employee of the Railway. With respect to the
arguments of denial of natural justice, the Chair
man stated: "We agree that natural justice is a
vital right and must be followed by this body, and
it is with that in mind that we have released the
report made to us to all affected, including the
general public, and will allow the Investigating
Officers to be questioned on this report" (tran-
script of proceedings, page 45).
Once these rulings were made, counsel for the
CPR made an application to the Committee under
section 55 of the National Transportation Act [as
am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 65 (Item
32)] for the Committee to state a case on relevant
questions of law and jurisdiction to the Federal
Court of Appeal. The Committee declined to do
so. On July 20, however, it did adjourn further
proceedings until September 12, to enable counsel
to seek judicial review of its preliminary rulings on
jurisdiction. Before adjourning, the Chairman
explained how the Committee intended to proceed
when it reconvened on September 12. He
explained that they intended first to make the
investigators available for cross-examination and
then "use their recommendations as an agenda for
the hearing". In starting with the problems identi
fied by the investigators, the Committee would
"determine whether or not these have been
resolved satisfactorily by actions on the part of
VIA or CP". If the Committee could determine
from its hearing that regulatory action is required
to protect against the occurrence of another acci
dent "it is our intention that appropriate orders
and regulations would be issued". With respect to
possible orders for the suspension or dismissal of
specific employees, it was noted that the investiga
tors had not recommended such action and the
Committee did not at that point intend to consider
that question. "We would not consider such action
before giving specific notice to the employee or
employees involved of our intention to consider the
issue together with sufficient time for them to
prepare" (transcript of proceedings, pages 66, 67).
This application was commenced by originating
notice dated August 10, 1983. While the notice
appeared to question directly the power of the
Committee to hold a public hearing or to release
the investigators' report to the public, as well as
questioning the validity of the report itself, Mr.
Mullins in argument for the CPR modified this
position somewhat. He argued that, first, the Rail
way Transport Committee has no jurisdiction to
hold a further inquiry into this accident. Once the
investigators' report is received, then the Commit
tee must act upon it. Secondly, if instead the
Committee does have the power to hold a further
inquiry, then the proceedings here are in breach of
natural justice because there is no adequate notice
to affected parties setting out the grounds for, or
nature of, any orders that might be made against
them. Thirdly, even if the Committee has the
power to proceed in this matter it may not adopt
rules or regulations as a result. It can only make
recommendations to the Commission to make such
regulations. Authority for this proposition included
section 24 of the National Transportation Act
which authorizes the establishment of committees
and allows them to exercise any of the powers of
the Commission "in accordance with the rules and
regulations of the Commission", together with the
Canadian Transport Commission General Rules
(SOR/83-448), subsection 7(2) of which states
that "A regulation making power granted to the
Commission shall not be exercised by a Committee
referred to in section 3." The Railway Transport
Committee is one of those referred to in section 3
of the Rules.
No objection was raised as to this matter being
dealt with under section 18 of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10] instead of
under sections 28 or 29 of that Act. I would
merely note that, considering that what is being
challenged here are the preliminary rulings by the
Railway Transport Committee as to its own juris
diction, and not a final order or decision, the
application is properly brought under section 18
within the principles enunciated by the Court of
Appeal in The Attorney General of Canada v.
Cylien, [1973] F.C. 1166 (C.A.) and In re Anti-
dumping Act and in re Danmor Shoe Co. Ltd.,
[1974] 1 F.C. 22 (C.A.).
The position taken by the CPR is essentially as
follows:
(1) Neither the Canadian Transport Commission
nor the Railway Transport Committee thereof has
any power to conduct an inquiry under section 226
of the Railway Act. The inquiry provided for in
that section is the investigation carried out by the
investigators appointed by the Commission or its
Committee.
(2) The only action which the Commission or its
Committee may take under subsection 226(2),
after receipt of the report of the investigators, is to
order the company to suspend or dismiss any
employee for negligence or wilful misconduct. In
other words, the words "may act upon such report
and may order the company to suspend or dismiss
any employee" should be read conjunctively.
(3) If, notwithstanding positions (1) and (2), it
should be held that the Railway Transport Com
mittee can hold a hearing on the possible need for
further regulations governing other aspects of rail
way safety, the Committee can only make recom
mendations to the Commission in this respect and
cannot make regulations. As I understand it, this
position is not disputed by the Commission.
(4) If the Committee wishes to proceed to deal
with complaints of misfeasance or non-feasance by
the Railway it should do so under sections 45 or 48
of the National Transportation Act. To proceed
under either of those sections it is necessary for the
Committee to give the Railway notice, adequate
both in its specificity and in time, so that the
Railway can be prepared to answer such
"charges". The CPR takes the view that the public
inquiry as presently contemplated may lead to
such findings against the Railway without the
company having the opportunity to prepare for
and answer unspecified accusations against it.
Thus the CPR asks for prohibition and certio-
rari, on the basis that these preliminary determi-
nations by the Railway Transport Committee are
both in excess of its jurisdiction and will lead to a
denial of natural justice. As I understand it, the
CNR supports this position as does G. A. Grant, a
shop manager for CPR, both of whom were repre
sented before me.
The Canadian Transport Commission has taken
essentially the following positions:
(1) Subsection 226(2) of the Railway Act author
izes the Commission or its Committee to take
various forms of action quite apart from ordering
the suspension or dismissal of a railway employee.
In other words, the words "may act upon such
report and may order the company" should be
read disjunctively.
(2) Therefore the Committee, having received the
report from the investigators, is now considering in
what way it should act upon the report. In consid
ering that question, as in holding sittings for the
transaction of any business, it may, as provided in
section 17 of the National Transportation Act, "sit
either together or separately, and either in private
or in open court".
(3) The main focus of such a hearing would be to
consider the possibility of exercising the powers
under section 227 of the Railway Act to make
orders or regulations. In so far as the hearing is for
the purpose of receiving views on possible delegat
ed legislation, it is more of a legislative process
than a quasi-judicial process.
(4) However the proceeding might be character
ized, whether legislative or quasi-judicial, ade
quate notice has been given to the CPR and other
parties through the report of the investigators, its
recommendations, and the indications by the Rail
way Transport Committee on July 19 and 20 as to
how it intends to proceed. Moreover, the parties
will have had the report and the further explana
tions of the Committee for several weeks prior to
the intended resumption of the hearings on
September 12.
VIA Rail, also represented before me, does not
contest the jurisdiction of, or procedure adopted
by, the CTC.
First, I am satisfied that subsection 226(2) of
the Railway Act contemplates a broader response
than merely the ordering of the suspension or
dismissal of railway employees. I believe it to be
the duty of the Court to give effect to each of the
words in the statute unless the context clearly
indicates otherwise. In my view the context does
not so indicate. Subsection 226(1) empowers the
Commission to appoint investigators "to inquire
into all matters and things that it deems likely to
cause or prevent accidents, and the causes of and
the circumstances connected with any accident". It
is the report of those investigators which the Com
mission is empowered to "act upon". If "act upon"
were to be confined to the ordering of suspensions
or dismissals of railway employees, surely the pur
pose of the investigation would be similarly cir
cumscribed in subsection 226(1). Surely an inves
tigation could be ordered under subsection 226(1)
even in accidents involving no railway employee. If
the narrow interpretation of subsection 226(2)
were accepted, in the present situation there would
appear to be practically nothing remaining here
for the Commission to do, since the Railway has
already taken action with respect to various
employees. Section 226 is included in a portion of
the Act headed "ACCIDENTS". This section carries
a subheading "Commission May Direct Inquiry".
In the context, I see no clear indication that
Parliament intended the Commission only to con
sider the possibility of misfeasance or non-feasance
by railway employees. It is more likely that Parlia
ment intended that the Commission through its
investigators should learn as much as possible
about the cause of such accidents and use that
information for various purposes in its regulatory
activities. In addition, it can make orders with
respect to the suspension or dismissal of particular
employees.
In its telex of July 18 in response to the letter of
July 11 from the solicitors for the CPR, the Com
mission stated that it was proceeding under sec
tions 226 and 227 of the Railway Act and asserted
that by section 17 of the National Transportation
Act it had discretion as to its manner of proceed
ing. In her argument before me, Mrs. Bloodworth,
counsel for the Commission, assured the Court
that what was contemplated by the Commission
was the possible making of orders and regulations
under section 227 of the Railway Act on the basis
of the investigation carried out under section 226
and on the basis of information and views emerg
ing during the public hearing through cross-exami
nation of the investigators, the submissions of
interested parties and members of the public, fur
ther expert evidence, etc. This stated purpose of
the public hearing was also asserted by the Chair
man of the Railway Transport Committee. At
page 3 of the transcript of July 19, he said: "I
would like to stress that our jurisdiction is over
railway safety, and that our interest in these pro
ceedings is in investigating this accident in order to
determine what measures are necessary to prevent
future rail accidents." At page 5, after referring to
section 227, he said: "in considering the results of
any accident investigation, the Commission has to
decide whether or not the circumstances require it
to institute any further regulatory initiatives in the
area of rail safety". Again, at page 67, he said: "If
we can determine after hearing from these and
other parties that regulatory action is required to
protect against the occurrence of another accident,
it is our intention that appropriate orders and
regulations would be issued."
On the basis of these statements of intent, I am
of the view that the Railway Transport Committee
can proceed with the hearing which it has
announced.
Counsel for the CPR, supported by counsel for
the CNR, argued that there was no authority for a
"public inquiry" in the circumstances. In their
view, all that the Commission could do under
section 226 was to receive the report from its
investigators: it is the investigation, carried out in
private by those investigators, which constitutes
the "inquiry" authorized by section 226. This con
tention is answered in part by the provisions of
section 17 of the National Transportation Act.
When a report has been made to the Commission
under subsection 226(2) it or its Committee must
surely meet to consider the report. In so meeting,
the Committee may, pursuant to section 17 of the
National Transportation Act, decide to sit "either
in private or in open court". If it decides to sit "in
open court" it can invite the railway companies,
the other interested parties, and members of the
public generally to attend and participate in a
discussion if it so wishes. The critical point will be
reached if in such proceeding the Committee
wishes to compel the attendance of witnesses or,
perhaps, to administer oaths to witnesses. But here
the Committee can rely upon the general power of
the Commission under section 82 of the National
Transportation Act [as am. by S.C. 1977-78, c.
22, s. 18(4)]. This section provides, inter alia, that
"the Commission ... may (c) require the attend
ance of all such persons as it ... thinks fit to
summon and examine, and require answers or
returns to such inquiries as it ... thinks fit to
make; (d) require the production of all material
books, papers, plans, specifications, drawings and
documents; and (e) administer oaths, affirmations
or declarations . ..". This section, together with
section 81, appear under a heading "Inquiries".
While neither section specifically authorizes the
Commission itself to hold an inquiry, section 82
nevertheless gives the Commission specific author
ity to compel witnesses to attend and the produc
tion of documents, etc. This would appear to be a
general power available to the Commission in con
nection with or to supplement any "inquiry".
Therefore I conclude that the Railway Transport
Committee has power to hold such a public meet
ing, to invite submissions as it has done, and to put
witnesses under oath as it apparently intends to do.
This is by way of analyzing or completing to its
satisfaction an inquiry commenced by the appoint
ment of investigators.
It may also be noted that under section 74 of the
National Transportation Act there is a general
authority for the Commission to order witnesses to
be examined upon oath and section 5 of that Act
makes Part IV thereof (in which both sections 82
and 74 are found) applicable to "every inquiry ...
or other proceeding under this Act, the Railway
Act ...", etc. In my view the Committee's con-
sideration of the investigators' report is a "pro-
ceeding" under the Railway Act.
There remains the question: even though the
Railway Transport Committee has the jurisdiction
to proceed with the public hearing, has it denied,
or is it about to deny, the procedural rights of the
Canadian Pacific Railway? The CPR has asserted
that it will be denied natural justice because it has
not been notified of specific complaints against the
Railway nor of specific action contemplated by the
Railway Transport Committee.
It must first be noted that what is involved here
is an apprehended denial of natural justice, not one
which has already occurred. In such circumstances
I think courts must be hesitant to assume that a
tribunal will proceed to deal with the interests of
individuals or companies without affording them
notice, and opportunity to prepare, of a nature
suitable for the kind of process in question.
It is difficult to characterize with assurance the
nature of this proposed hearing. As the recommen
dations of the investigations are to be used "as an
agenda", one must mainly look to them. Recom
mendations (i), (iii), (iv), and (vi) call for the CPR
or VIA to provide further information and views
on certain specified matters. Recommendation (ii)
apparently calls for the Committee to seek other
expert evidence concerning air brake systems on
rail diesel cars. Recommendation (v) specifically
recommends the making of a particular regulation
by the CTC.
All of these recommendations, and recommen
dation (v) in particular, if followed by the Com
mittee, could lead to further general orders being
made, or general regulations being recommended
for adoption, under section 227 of the Railway
Act. For that purpose the Committee would be
performing a legislative function. While it is
highly desirable that both the parties regulated
and interested members of the public have an
opportunity to make their views known before such
general measures are adopted, I do not think that
the rules of natural justice or fairness apply to
such a process. It must also be observed here that
the CPR strongly asserted, and counsel for the
Commission did not disagree, that the Railway
Transport Committee cannot itself adopt regula
tions but can only make recommendations to the
Commission to adopt them. There is considerable
authority to the effect that where a body only
studies and makes recommendations, the rules of
natural justice are inapplicable. See for example
Guay v. Lafleur, [1965] S.C.R. 12.
But it is also possible that in certain respects the
recommendations, if followed by the Committee,
might lead it to make specific orders that would
apply only to CPR or VIA, and that would have
the effect of specifically correcting what the Com
mittee might conclude were shortcomings which
contributed to this accident. Such a process should
be governed by the rules of natural justice or at
least the requirements of fairness.
It appears to me that the Railway Transport
Committee's action prior to July 19 might have
given rise to reasonable concern about a denial of
natural justice or fairness. The notice it issued on
June 14 simply indicated that it would hold a
public inquiry with respect to "the causes of and
the circumstances connected with the accident on
March 23, 1983" and that at the first session the
inquiry would hear evidence from the investigators
at which point it would adjourn to a later date.
The report of the investigators became available
on July 8 and in my view the report, together with
its recommendations, did provide much of the
necessary information for the Railway and other
parties to prepare themselves. However there was
very little time for the CPR to analyse the report
between July 11, when it received the report, and
July 19 when the hearing started. It was at the
hearing where the Chairman of the Committee
explained, as noted above, the manner in which the
Committee intended to proceed: that it would use
the recommendations in the report "as an agenda
for the hearing"; "to start from the problems
identified by our investigators, to determine
whether or not these have been resolved satisfac
torily by actions on the part of VIA or CP. If we
can determine after hearing from these and other
parties that regulatory action is required to protect
against the occurrence of another accident, it is
our intention that appropriate orders and regula
tions would be issued" (see transcript, pages 66,
67). It was such statements at the hearing that
clarified the main thrust of the process to be the
consideration of new orders or regulations.
As a result, however, of this additional informa
tion and of the delay from July 20 to September
12, the adjourned date of the hearing to allow for
the proceedings taken in this Court, it appears to
me that all interested parties should have had
sufficient time to prepare themselves, in the light
of the report and the explanations given at the
hearing in July, to deal with the kind of issues I
am discussing here, namely those that arise out of
the events of a particular accident and may lead to
new laws bearing particularly on the parties
involved in that accident.
Further, it is possible that the Committee might
conclude that there was some indication of a
breach of existing law on the part of one or both of
the companies involved. This might suggest to the
Committee that further action might be required,
under sections 45 and 48 of the National Trans
portation Act or otherwise, to have a formal deter
mination of a violation of the law and, if con
firmed, the application of specific sanctions or
remedies. But to proceed to such a step would be a
process of the same nature as the exercise of the
Committee's power to order the suspension or
dismissal of a railway employee under section 226.
The Federal Court of Appeal has held in In re
Daigle and in re Canadian Transport Commis
sion, [1975] F.C. 8 that the use of this power
required observance of the audi alteram partem
rule. The Committee in the present case recog
nized its obligation, should it decide to consider
such actions in respect of any employees, to give
them notice of its intentions and allow them time
to prepare (see transcript, page 67). I am assum
ing that the Committee is prepared to give the
same kind of notice to the CPR or VIA if it
decides to take steps under sections 45 or 48 of the
National Transportation Act to adjudicate on pos
sible breaches of existing law.
As I have indicated above, I believe that what
has transpired thus far has given the companies
sufficient notice, in relation to the kind of issues
which the Committee has said it will deal with, to
provide natural justice or fairness. Under the cir
cumstances, I do not think it is necessary for
something like a formal accusation to be delivered
to the companies at this stage. See CRTC v. CTV
Television Network Ltd., et al., [ 1982] 1 S.C.R.
530. The Committee can proceed, on such notice
as has been given, to see whether the facts sur
rounding the accident would suggest the adoption
of new orders or regulations particularly applying
to the installations, equipment or procedures
involved in this accident. It is clear that other
remedies will be available to the applicant if the
Railway Transport Committee should in fact con
duct itself in such a way as to deny the applicant
natural justice. There would be a possibility of an
appeal under subsection 64(2) of the National
Transportation Act [as am. by R.S.C. 1970 (2nd
Supp.), c. 10, s. 65 (Item 32)] or possibly a right
of review under section 28 of the Federal Court
Act.
I would therefore dismiss the application for
prohibition and certiorari. Under the circum
stances there will be no costs awarded.
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.