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.
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.