Windsor (City) v. Canada (Canadian Transport Commission)
The Corporation of the City of Windsor and Robert Francis
Girard, applicants, and
The Canadian Transport Commission (Railway Transport
Committee), respondent, and
Canadian Pacific Limited, intervener
 F.C.J. No. 17
 A.C.F. no 17
Court File No. T-4669-77
Federal Court of Canada - Trial Division
Heard: December 15 and 16, 1977
Judgment: January 25, 1978
R.J. Rolls, Q.C., and R.G. Colautti, for R.F. Girard.
I.R. Fisher, for the City of Windsor.
D. Silverstone and S. Manion, for the Canadian Transport Commission.
N.A. Chalmers, Q.C., for Canadian Pacific Limited.
1 CATTANACH J.:-- This is the third motion made by the applicants herein arising from an amazing succession of events which require to be summarized in order to appreciate the circumstances of the present motion and also the two preceding motions and their effect on the present motion.
2 Canadian Pacific Limited (hereinafter referred to as "CP" for purposes of convenience and not as "CPR" the corporate name having been changed in recent years no doubt to eliminate the reference to the railway operation and thus more accurately reflect in the corporate name the many diverse operations carried on by the Corporation) was not named in the style of cause as a party. CP has been the applicant to the Canadian Transport Commission (Railway Transport Committee), hereinafter referred to as "CTC" or "RTC" as circumstances dictate) on at least four occasions respecting the subject matter related to the present motion and in my view has a vital interest in the matter and as such has the status to be represented and oppose the present motion. Apparently CP had been served with the notice of motion and counsel for CP was present at the hearing.
3 Because of that opinion it followed that the style should be appropriately amended to reflect that situation and accordingly I invited counsel to move for leave to be added. This he did, to which counsel for the applicants herein consented, and I accordingly directed that CP should be added, not as a respondent, but as an intervener.
4 Prior to 1973 CP operated its main line of railway track, a 99 ft. right of way, through a populated area of the City of Windsor.
5 In 1945 CTC authorized a pedestrian crossing over CP's main line then consisting of one track and the pedestrian carriage was constructed in that year.
6 During 1973 and 1974 CP constructed two sidings parallel to its main line so that there were three railway tracks where there was formerly but one crossed by a pedestrian right of way.
7 Those sidings were constructed by CP without prior approval having been obtained from CTC as required by section 216 of the Railway Act (R.S.C. 1970 c. R-2) and began operating trains over those two sidings as is also prohibited by section 216 of the Railway Act.
8 This high-handed action by CP was compounded by its placing armed guards at the pedestrian crossing to deny pedestrians their right to cross the tracks at the point of crossing forcing them to make a detour of about a mile to reach their destinations and this despite the fact that the CTC order of 1945 establishing the pedestrian crossing had never been rescinded and was still in force.
9 The citizens of Windsor were justifiably incensed by being obstructed from the use of the crossing which was their right and no doubt deluged the city fathers with complaints. The irritation of the citizens also infected the elected city officials.
10 Added to this, the access of those hardy and determined citizens who were well aware of their right to cross the railway tracks at that point and were not deterred by the posted guards, were still further impeded by railway trains. The unauthorized use of the sidings to accommodate such trains blocked the pedestrian crossing by standing there stationary for long periods of time.
11 No explanation was proffered to me as to what prompted this precipitate action by CP no doubt because no reasonable explanation was possible. I conjecture that as in most large and complex corporations the right hand does not know what the left hand is doing. No doubt the operating or engineering division of the railway foresaw the necessity of the construction of these two sidings as necessary for its efficient operation, and being men of action constructed the sidings forthwith without first consulting their highly competent legal division to ascertain if there were any legal impediments (as there most certainly were) to the construction and operation over these sidings.
12 Having so expended a considerable amount on the construction of the sidings which must have been deemed requisite for efficient operation and having created such a mass reaction of ill feeling the legal division was consulted, after the event, to extricate the railway from its predicament and to attempt to salvage something from the expenditure ex post facto.
13 The following chronography occurred.
14 On February 24, 1975 the South Walkerville Citizens' Committee addressed a petition to CTC, having first enlisted support of senators from Windsor, the local members of Parliament, as well as addressing the petition to the Minister of Environment and various officers of that Department, objecting to the location of the sidings, their effect on the environment, the blocking of pedestrian traffic over the walkway, and the closing of the walkway contrary to the Board's 1945 order.
15 By letter dated February 24, 1975, CTC directed CP to take certain action to which no reply had been received.
16 On April 12, 1975, CTC sent a telegram to CP directing CP, amongst other things, "to show cause, within 15 days as to why an order should not issue requiring the removal of or the cessation of train operation over the two railway sidings...".
17 By letter dated April 24, 1975, CP replied advising of the reason for the necessity of constructing those two sidings, discussions with the City of Windsor as to a pedestrian underpass at the site, acknowledging that it was remiss in not applying for authority prior to construction of the sidings but most important applying: "Under section 52 of the National Transportation Act for an Order approving the pedestrian crossing" as had been restored at mile 109.30 on the Windsor subdivision as indicated in an enclosed plan and subdivision dated April 14, 1975 and also applying "for an Order authorizing the Company to operate over this crossing".
18 On June 17, 1975 this application was heard by RTC before a panel consisting of two members, D.H. Jones, Q.C. as Chairman and E.H. LaBorde (for convenience hereinafter referred to as the Jones-LaBorde Committee) and the hearing continued throughout June 18, 19, 20, 21, 24 and 25.
19 On June 25, 1975 the hearing was adjourned to enable CP to produce certain documents for inspection by the opposite parties but the Chairman ordered that: "until the Commission makes a final decision on the application of CP no train should operate on either siding crossing Parent Avenue..."
20 This order was interpreted as prohibiting trains from running over that portion of the sidings that crossed over the Parent Avenue walkway but permitted trains to use the balance of the sidings.
21 This did not satisfy counsel for the opposite parties, who objected on behalf of their clients, contending that no trains whatsoever should be permitted to operate on any portion of the sidings because CP had not obtained prior approval therefor under section 216 of the Railway Act.
22 On August 31 and September 1, 1976 a prehearing conference was held in Windsor presided over by Mr. K. Thompson, counsel to the commission, no doubt to clarify the issues to be heard by the Committee.
23 On September 14, 1976 (some 15 months after the adjournment) the hearing resumed before the Jones-LaBorde Committee.
24 By letter dated September 10, 1976, CP had applied for authority to operate trains over the sidings.
25 By order dated September 14, it was ordered that no traffic be carried and no trains be operated over the sidings until further order by the Committee.
26 The Chairman ordered the delivery of pleadings. On September 16, 1976 the hearing was again adjourned.
27 Prior to adjournment counsel for the opposite parties applied for costs as they were entitled to do under section 73 of the National Transportation Act.
28 The Chairman asked for representations as to costs and undertook to give a decision prior to the resumption of the hearing.
29 Notice of the application by CP under section 216 of the Railway Act for authority to operate over the sidings (public notice being required) was published in the Windsor Star. This notice elicited some 150 written representations by citizens of Windsor opposing the application by CP.
30 The hearing resumed in Windsor on March 29, 1977 before the Jones-LaBorde Committee.
31 Three matters were before the Committee,
(1) an application by CP under section 196 and 197 of the Railway Act for approval to carry the sidings over the public pedestrian walkway;
(2) an application by CP under section 216 of the Railway Act for authority to open the sidings for the carriage of traffic; and
(3) the request for costs by the opponents under section 73 of the National Transportation Act.
32 On April 7, 1977 the Jones-LaBorde panel reconvened, subsequent to adjourning on April 5, 1977 to deliver reasons for its disposition of the matters before it.
33 With respect to the application by CP under section 216 of the Railway Act the Committee had this to say:
"In his argument in support of the Canadian Pacific application under Section 216 of the Railway Act, counsel for the company laid stress on the importance of separating the effect of Section 216 in respect of Parent Avenue and the effect of Sections 196 and 197 of the same Act in respect of that crossing. As we understood him, he was urging us to decide that the application under Section 216 by Canadian Pacific be granted without regard to the existence of Parent Avenue where it crossed the new trackage comprised in the Powell Sidings. He reasoned that the company was entitled to an order under Section 216 for the full length of Powell Sidings, including the portions underneath Parent Avenue, the Parent Avenue crossing, virtually as if that crossing did not exist. That problem - the adequacy and safety of the crossing of Parent Avenue over the Powell Sidings - was to be decided in his view when we came to consider the application under Sections 196 and 197.
We do not agree.
Within the narrow confines of Parent Avenue, excluding the main line, Powell Sidings were built admittedly with the required authority from the Commission. To cure this defect the company seeks to invoke Section 52 of the National Transportation Act and to obtain the blessing of the Commission ex post facto for what has already been done at that location."
34 Later the Committee said:
"In our opinion, the difficulty was created by the fact that, contrary to the Railway Act, Canadian Pacific constructed Powell Sidings without first applying for and obtaining the requisite approvals from the Committee. Had this been done, the first question would have been that of the protection, safety and convenience of the public at Parent Avenue. Had that question been settled in a manner favourable to the Railway Company, it would then and only then have given rise to the issue raised by Section 216. However, the tracks have been constructed and they are there from one end of the Sidings to the other including Parent Avenue. This is why the question of leave from this Committee under Section 216(4) is critical, and also why further consideration of the Application under Sections 196 and 197 of the Railway Act with Section 52 of the National Transportation Act are really hypothetical in the absence of an operating order under Section 216.
As to the last mentioned Section, Canadian Pacific has not satisfied us on the evidence, such as it is, that was before us when Counsel for Canadian Pacific closed his case in respect of the Application under that Section."
35 The Committee's decision with respect to the application under section 216 of the Railway Act and sections 196 and 197 of that was expressed in these words:
"For these reasons, the Application of Canadian Pacific under Section 216 of the Railway Act fails. For the reasons also expressed, the Committee adjourns the remaining Application under Sections 196 and 197 of the Railway Act and Section 52 of the National Transportation Act until further notice."
36 In the result the application under section 216 was dismissed and the application under sections 196 and 197 was adjourned.
37 As to the application for costs this was said by the Committee:
"...we have to tell you that we are still not in a position to say that we have reached agreement upon it. So that question, that is, the question of costs, is one that we will have to take away with us to give further consideration and when we have reached a decision, that decision will be communicated to you and at that point in time you will know what our disposition is of that Application."
38 On April 15, 1977, CP made a new application for leave to open the sidings for traffic and to carry the sidings over the crossing to be supported by new and further evidence and in the alternative applies to the CTC to review, rescind, alter and vary the decision given on April 7, 1977.
39 By letter dated June 27, 1977 Mr. Thompson, counsel to the Commission, advised the applicants herein that they would not be obliged to plead to the new application by CP dated April 15, 1977 until 30 days after the issuance of a decision as to the application for costs.
40 By order dated July 7, 1977 the recitals indicate that the Jones-LaBorde panel was unable to agree as to the question of costs applied for and that pursuant to section 63 of the National Transportation Act, RTC had decided to rehear the motion before a new panel constituted for that purpose. It was accordingly ordered that the motion be heard in Ottawa on July 21, 1977.
41 By motion dated July 14, 1977 application was made to this Court, returnable in Toronto, Ontario on July 20, 1977 for an order prohibiting the newly constituted panel from hearing the motion for costs.
42 The matter was heard by my brother Gibson on that date who decided that no decision had been yet made by the Commission on the application relating to costs, that it is not mandatory under section 63 that the new hearing be held before the same panel that heard the original application and accordingly dismissed the application without costs to either party.
43 By notice of appeal dated August 3, 1977 the decision of Gibson J. was appealed to the Appeal Division of this Court.
44 On August 10, 1977, CP applied to the RTC for an interim order permitting the use of the sidings pending a decision by the Committee on the application by CP dated April 15, 1977.
45 By notice of hearing dated October 6, 1977 the RTC of the CTC directed that the Committee would hold a public hearing on CP's application dated April 15, 1977 at Windsor on November 28, 1977 and those opposing the application were given until October 31, 1977 to file written statements.
46 By letter dated October 12, 1977, CP advised RTC that its application dated August 10, 1977 for an interim order was withdrawn subject to its application dated April 15, 1977 being heard on November 28, 1977.
47 In response to a telephone call on November 7, 1977 the applicants herein were advised that the panel selected to hear the application on November 28, 1977 at Windsor was comprised of J.T. Gray, J.M. Woodward and J.M. McDonough and not the Jones-LaBorde panel.
48 By notice of motion dated November 10, 1977 returnable in Toronto, Ontario on November 21, 1977 application was made to the Trial Division of this Court for an order prohibiting the CTC (RTC) from hearing the application of CP dated April 15, 1977 or any other applications, interim or otherwise, until such time as RTC (the Jones-LaBorde panel) delivered judgment on two applications outstanding before that panel, namely: (1) the application of CP under sections 196 and 197 of the Railway Act which had been adjourned by the Jones-LaBorde panel until further notice by the reasons delivered by that panel on April 7, 1977, and (2) the application of the applicants herein for costs with respect to which the Jones-LaBorde panel could reach no agreement.
49 The motion also requested an order prohibiting any member of the Railway Transport Committee other than Jones and LaBorde from hearing either of such two applications. This application was heard by my brother Mahoney on the date and at the place appointed.
50 On November 22, 1977 Mr. Justice Mahoney in his formal judgment of that date dismissed the applicants' motion for prohibition and awarded the costs of the motion to the respondent, if demanded.
51 Mahoney J. also gave reasons for judgment dated November 22, 1977 during the course of which he concluded that the Jones-LaBorde panel had, in fact, made a decision with respect to the September 1975 application by CP under sections 196 and 197 of the Railway Act when that application was adjourned until further notice.
52 By virtue of sections 196 and 197 the railway of a company may be carried upon, along or across any existing highway if leave to do so is first obtained from the Commission.
53 By virtue of section 216 no railway or portion thereof shall be opened for traffic until leave has been first obtained from the Commission.
54 CP constructed its sidings across the pedestrian walkway without leave under sections 196 and 197 and it also began carrying traffic over these sidings without leave under section 216.
55 It will be recalled that the Jones-LaBorde panel dismissed CP's 216 application. From the extract of the reasons given by that panel it is clear that because CP had not first obtained leave to construct the sidings under sections 196 and 197. Had that been done the first question to be decided would have been the safety, protection and convenience of the public using the pedestrian crossover. Had that question been decided favourably to CP, then and only then, could the issue under 216 (that is the authority to operate trains over the sidings) arise.
56 The panel was not satisfied that the evidence adduced before it justified the granting of authority under section 216 and that is why the panel adjourned the application under sections 196 and 197. Obviously the two applications are so inextricably interwoven that one could not be decided without the other being decided and the view of the panel was that the 216 application should be considered first and the 196 and 197 immediately thereafter.
57 Accordingly panel adjourned the 196 and 197 application rather than dismissing it but I cannot escape the conclusion that the panel, by its reasons, extended to CP an open invitation to renew its 216 application to be supported by further evidence as a condition precedent to the consideration of the 196 and 197 application or vice versa.
58 As I conceive the ratio of Mr. Justice Mahoney's decision it is that there was a decision by the Jones-LaBorde panel on the 196 and 197 application in that rather than dismissing this application the same end was accomplished by adjourning the matter.
59 With respect to the question of the applicants' costs applied for, it is abundantly clear that the two constituent members of the panel reached divergent views. That is a danger always inherent in an even numbered panel. However the view of Mr. Justice Mahoney (with which I agree) was that in the absence of agreement between a panel of two it follows as a matter of course that there is no order granted and that is the decision. On the other hand Mr. Justice Gibson accepted from the material before him that it appeared that no decision had been made by the Commission relating to costs. He did not decide that question. He directed his mind to the question before him and that was whether a further hearing might be before a panel composed of members completely different from those who heard the original motion. He concluded that this could be done. That was the ratio of his decision and it was not part of the ratio that no decision had been made. He merely assumed that to be so and went on from that point to conclude as he did.
60 However it was the ratio of Mr. Justice Mahoney's decision that a decision as to costs had been made for the reasons he gave. As previously indicated the decision of Gibson, J. dated July 20, 1977 was appealed by notice of appeal dated August 3, 1977.
61 The appellants' memorandum was filed on December 14, 1977 and an appeal book prepared on December 19, 1977 but no application has been made to fix a time and place for the hearing of the appeal.
62 The decision of Mahoney, J. dated November 22, 1977 has also been appealed. It appears that notice of appeal was filed on November 25, 1977 but other requisite material does not appear to have been filed and accordingly the appeal does not appear to be ready for an application to fix a time and place for its hearing.
63 In the end result neither appeal has as yet been heard.
64 It was suggested before me that Mr. Justice Mahoney misconceived the application before him. That suggestion is predicated upon the following words used by him at page 3 of his reasons for judgment:
"On August 10, CP applied to the Respondent, under the sections of the Acts and Rules previously referred to, for an interim order, pending the outcome of its April 15 application, permitting it to operate Powell Sidings and open it for the carriage of traffic. That is the application in issue here."
65 The submission was that the words "This is the application in issue here" refers to the August 10 application for an interim order which had been withdrawn.
66 I do not agree. In the antecedent sentence two applications were referred to, first the August 10 application and latterly the April 15 application. It is a cardinal grammatical rule that when there are two antecedents possible of being governed it is the latter of the two, or the one in closer proximity to the governing sentence that is governed thereby. In this instance that is the April 15 application.
67 Apart from this the motion before Mahoney, J. was to prohibit the April 15 application, he knew that the August 10 application for an interim order had been withdrawn and the reason the August 10 application was mentioned at all is made abundantly clear and that was that Mahoney J. would not base a decision adverse to the plaintiffs on a finding that an undertaking given could be circumvented by bringing an application for an interim order.
68 The whole tenor of the reasons for judgment leaves no doubt whatsoever that Mahoney J. was dealing with the application to prohibit the hearing of the April 15 application and that is the application that he dealt with and no other application.
69 Accordingly I find no merit in the suggestion made to the contrary.
70 Following the decisions of my brothers Gibson and Mahoney as previously stated, the RTC issued the notice of hearing dated October 6, 1977 convening the hearing of CP's application dated April 15, 1977 in Windsor on November 28, 1977.
71 On November 23, 1977 a telegram was sent by counsel for the City of Windsor to RTC requesting an adjournment.
72 On November 24, 1977 a telegram was despatched by RTC denying the request for an adjournment.
73 By letter dated October 7, 1977 the legal counsel to the CTC advised the applicants that the hearing of CP's April 15, 1977 application would be heard on November 28, 1977 despite the prior undertaking given by the same counsel by letter dated June 27, 1977 that the applicants need not plead to the application until 30 days after the issuance of a decision on the question of costs applied for. The letter dated October 7, 1977 antecedes the decision of Mahoney, J. dated November 22, 1977 to the effect that there had been a decision on the motion for costs.
74 The hearing of CP's application dated April 15, 1977 began in Windsor on November 28, 1977 as scheduled before a panel chaired by Mr. Gray and two further members. It was an entirely different panel than the Jones-LaBorde panel.
75 The applicant herein, Robert Francis Girard, was represented by Leon Paroian, Esq., Q.C. Mr. Girard is a merchant in Windsor and I suspect that his trade may have been adversely affected by the impediment to the convenient and free movement of his customers caused by the construction of the sidings. I also suspect that, in addition to his personal interest, Mr. Girard was made a party in something akin to a representative action because in the two prior motions heard by my brothers Gibson and Mahoney two other individuals were named as applicants in the style who are not named in the style of the present motion.
76 Mr. Ian Fisher represented the Corporation of the City of Windsor. The Canadian Transport Commission (RTC) was represented by Ms. D. Silverstone.
77 CP was represented by N.A. Chalmers, Esq., Q.C.
78 In addition to counsel mentioned there were present in excess of 150 private citizens of Windsor who had filed written submissions in opposition to CP's application as they had been invited and entitled to do.
79 Upon the opening of the hearing Mr. Gray was met with a barrage of questions from the floor the general trend of which was expressed by a citizen, August Conen, who said:
"What are you doing here today? We don't know and we would like to know. Is this going on and on? If it is CPR will win, that's obvious. Thank you."
80 Mr. Gray answered this query by saying:
"Mr. Conen, the simple answer to your question of why we are here today, is, as far as this panel is concerned, that we were instructed to come here by the Canadian Transport Commission to deal with an application by Canadian Pacific, which so far as we know Canadian Pacific is entitled to make. And if they file a proper application to the Canadian Transport Commission, in fact we have no choice but to hear it. And that's why we are here today."
81 Counsel for the City endorsed the remarks of Mr. Conen with respect to the never ending procession of applications and questioned the policy that someone should make as many applications as wished, to which the Chairman replied that under the statutory provisions an applicant can make an application any time it wishes, and that Parliament has imposed upon the Commission the duty to hear these applications and decide the items raised and that the Commission must do that.
82 The Chairman's attention was brought to the prior applications before the Jones-LaBorde panel and, that there was no pleading that evidence to be introduced was not available and could not have been introduced before the Jones-LaBorde panel.
83 The obvious submissions were made that the panel should not proceed with the hearing brought before it, which the Chairman rejected.
84 The Chairman's attention was directed to the fact that the decisions of Mr. Justice Gibson and Mr. Justice Mahoney were under appeal and the implicit submission was that the hearing should be adjourned pending the disposition of these appeals.
85 The Chairman's attention was also drawn to the undertaking that the applicants need not plead to the application until 30 days after the issuance of a decision as to costs and its subsequent dishonour by its withdrawal.
86 Mr. Paroian submitted that, because of the circumstances, the present panel was biased and should disqualify itself. I would assume that this bias would be considered as equally applicable to any panel other than the Jones-LaBorde panel.
87 Dr. Henderson, who had been an applicant on the previous motions, addressed the panel stating that it seemed to the citizens that the previous panel having ruled on three separate occasions in favour of the citizens that that panel was being deliberately replaced so that mistake would not be made again. He added:
"Were those members of your previous Commission so inept that it was felt that they could no longer handle this case? Or could it be that this was decided on the part of CTC that it must be replaced by Commissions who would look more favourably on the CPR application, and to hell with the discomfort, loss of property value, and indeed, personal danger that has to be faced by the residents of the area."
88 Another citizen pointed out that CP had built the siding illegally and operated trains over the sidings illegally and that unlawful action would not be condoned on the part of most citizens. The citizens were obliged to wait 15 months for a hearing enduring great inconvenience meanwhile and that there was undue haste in hearing CP's present application.
89 Dr. Bricker, who had also been an applicant in the prior two motions but not in the present motion, addressed the Chairman in these words:
"Tell us, Mr. Chairman, how do we obtain justice? Has the RTC given us reason to think we will get justice here?"
90 I have reproduced the remarks made by the individual persons as illustrative of their apprehension of bias on the part of the present panel and also as indicative of their assumption that the ultimate decision of the panel will be adverse to their position and favourable to CP.
91 At this point the panel retired to consider the request for an adjournment.
92 The decision to reject the request was delivered orally the following morning, i.e. November 29, 1977 at 10:00 am. for the reasons:
(1) that the matter of the undertaking not to require the applicants to plead until 30 days after the decision as to their costs had been dealt with by Mahoney, J., that the panel was not bound by the undertaking and at the time the undertaking was given the question of costs was currently before the Jones-LaBorde panel (no disagreement having been then reached).
(2) that CP was entitled by the pertinent statutory provision to re-apply to the Commission by submitting a new application and that the panel would deal with the application of CP as a new application and not as a review.
(3) that the allegation of bias was predicated upon this panel's determination to deal with the matter in a more expeditious manner than previous matters had been dealt with and such an allegation did not warrant a finding of bias, and further that bias must be shown on the part of the individual members of the panel and not the panel as a whole which had not been done.
93 The application dated by CP April 15, 1977 is Tab A in the affidavit of Leon Paroian submitted in support of the present motion.
94 The application consists of eight paragraphs. As I appreciate the effect and purpose of the application: (1) paragraph 1 is an application for leave to open for carriage of traffic over the sidings and to comply, in advance, with any direction of the Commission for the provision of a safe pedestrian crossway. This I take to be an application under section 216 of the Railway Act, (2) paragraph 2 is an application to carry the sidings over the crossway on terms dictated by the Commission as to watchmen, an underpass or an overpass. This I take to be an application under sections 196 and 197 of the Railway Act, (3) on paragraph 3 there is notice of intention to adduce an entirely fresh record of evidence in support of the fresh applications under paragraphs (1) and (2), (4) the fourth paragraph framed in the alternative is an application to review, etc. the decision of RTC (the Jones-LaBorde panel) given on April 7, 1977. This I take to be an alternative application under section 63 of the National Transportation Act, (5) paragraph 5 is notice, in support of the alternative application, to adduce certain evidence available to be produced before the Jones-LaBorde panel but in the circumstances not heard by that panel, (6) paragraph 6 provides for the eventuality of the panel adopting the alternative procedure in paragraph (4) in which event the evidence before the prior panel would be introduced and perhaps more, (7) paragraph 7 is an application to the Commission for direction, (8) paragraph 8 outlines in four subparagraphs the grounds on which the new applications outlined in paragraphs (1), (2) and (4) are brought.
95 After having rejected the requests for an adjournment made up to this point the Chairman, on behalf of the Committee, expressed concern with the state of CP's application. He indicated, that in his view, the application in itself does not give the interveners any advance warning of the position CP will take on many questions of utmost importance to the interveners. He also said that no one knows the actual case to be met and so cannot adequately prepare their opposition. (Parenthetically speaking I fail to appreciate the Chairman's concern in this respect. By analogy to a statement of claim in a court of law all material facts must be pleaded in a concise and precise manner to allege a cause of action and evidence is not pleaded but is adduced to establish the allegations made. However not being familiar with the conduct of hearings before the CTC I assume that the Chairman's concern was primarily that the interveners do not know what evidence will be adduced in support of CP's applications as outlined therein and would not be in a position to contradict that evidence in advance.)
96 It seems to me that the Chairman has in fact indicated that insufficient notice has been given to the interveners.
97 However the Chairman came up with a solution to the dilemma he posed for himself. The solution was that CP would immediately put in its evidence in chief. Cross-examination would not take place at that time. When the evidence in chief had been put in the hearing would then be adjourned to permit the parties opposite in interest and the panel to review CP's proposals in calm and in detail and for the interested parties to assess their positions in the light of the evidence adduced by CP, to prepare for cross-examination on the evidence adduced, to introduce evidence in contradiction and otherwise present their views and submissions.
98 I have no doubt whatsoever that the blocking of the pedestrian crossway is not the sole concern of the citizens of Windsor. No doubt they question the very necessity of the construction of sidings on that location with resultant pollution of the environment by smoke, noise and the like, the inconvenience caused to residents of the area, personal danger to them and the depreciation of property values.
99 I might also add that the expedient adopted by the Chairman is one foreign to me as it rarely happens in a court of law. The Chairman's announcement to this effect precipitated a renewed application for an adjournment since the Chairman had himself suggested an adjournment, after introduction of evidence in chief, to January 1978.
100 That request was denied.
101 Counsel for the applicants then withdrew from the hearing which continued in their absence on November 30, 1977 and on December 1 and 2, 1977.
102 Counsel for the applicants on their withdrawal advised counsel for CP that application would be forthwith made for an order of prohibition directed to the panel.
103 That motion was made returnable in Ottawa on December 1, 1977 on short notice, with the consent of counsel for CP, service being effected on counsel for CP and counsel for CTC on November 30, 1977.
104 Due to most inclement weather on November 30, 1977 counsel for the applicants could not reach Ottawa on December 1, 1977.
105 In any event counsel for CTC did not consent to short notice and a fresh notice of motion was made, served within the prescribed time and was fixed for hearing before me in the City of Toronto on December 15, 1977.
106 This is the third motion and the recital of the sequence of events is much longer than I had anticipated but which I consider necessary for a consideration of the issues raised in the notice of motion and the hearing of which extended over two full days.
107 I have not reproduced the sections of the Railway Act and the National Transportation Act for to do so would still further protract this already lengthy recital of the facts and accordingly I have adopted the expedient of affixing the pertinent sections to these reasons as an appendix. [Ed. Note: See Appendix A appended to the judgment.]
108 Thus ends the chronography interspersed with remarks on several events.
109 The present motion is basically for an order prohibiting the Canadian Transport Commission (Railway Transport Committee) by a panel composed of Grey, Woodward and McDonaugh or any other panel except a panel composed of Jones and LaBorde from hearing CP's application on three grounds the first of which is that the new panel constituted for the purpose of hearing the application of CP dated April 15, 1975 is without jurisdiction to do so.
110 As I appreciate this ground it is predicated on the premise that the Jones-LaBorde panel, having heard a prior application to like ends, is seized of the matter particularly because (1) the Jones-LaBorde panel dismissed CP's application under 216 of the Railway Act, that is to open the sidings constructed for the carriage of traffic, no doubt the contention being that the matter is res judicata, (2) the Jones-LaBorde panel adjourned the application by CP under sections 196 and 197 of the Railway Act, that is for authority ex post facto to construct the sidings over the pedestrian crosswalk, sine die and that the hearing before the Jones-LaBorde panel has not been reconvened and accordingly that panel has not made a decision on this phase of the application and (3) the Jones-LaBorde panel undertook to give a decision on the applicants' request for costs, that an undertaking was given to the applicants by counsel to the Commission that they need not plead to CP's application dated April 15, 1977 until 30 days after the issuance of a decision by the Jones-LaBorde panel on the question (which undertaking was subsequently revoked but was given at a time when the question was under consideration by the panel) and no decision has been issued by the Jones-LaBorde panel.
111 As previously related by order dated July 7, 1977 it was recited that the Jones-LaBorde panel had been unable to agree to a decision on the application for costs, that pursuant to section 63 of the National Transportation Act the RTC decided to rehear the motion for costs before a new panel differently constituted for that purpose and so ordered.
112 This was the subject of the motion before Gibson, J. on July 20, 1977 for an order prohibiting the new panel differently comprised form hearing the motion for costs.
113 Mr. Justice Gibson dismissed the motion stating "I am of the view that it is not mandatory for the Commission under section 63 of the National Transportation Act to provide that re-hearing be held before the same members of the Commission who heard the original application".
114 Clearly Gibson J. had held that the Commission has the jurisdiction to order that a matter be reheard by a panel differently composed than the original panel.
115 Similarly it was moved before Mahoney, J. on November 21, 1977 to prohibit a panel constituted and convened to hear the application by CP dated April 15, 1977 (and this is the application which is the subject of the motion before me) or any other applications until the Jones-LaBorde panel had decided a like application under sections 196 and 197 of the Railway Act which had been adjourned and issued a decision as to costs.
116 Mr. Justice Mahoney has held that there had been decisions in fact by the Jones-LaBorde panel on both such matters.
117 The motion before Mahoney J. also requested an order prohibiting any members of the RTC other than Jones and LaBorde from "hearing either of said applications". The words quoted above from the motion made are ambiguous in that they may refer to the applications for costs and to construct the sidings under sections 196 and 197 of the Railway Act or they may refer to the application by CP dated April 15, 1977 "and any other application" which would also justify the use of "applications" in the plural.
118 In any event by his formal order dated November 22, 1977 Mahoney J. dismissed the applicants' motion in its entirety.
119 Bearing in mind the numerous authoritative decisions that if an inferior tribunal is without jurisdiction that prohibition should almost invariably issue I construe Mr. Justice Mahoney's decision as being that the panel not composed of Jones and LaBorde has jurisdiction to hear the CP application dated April 15, 1977.
120 Mr. Gray, the Chairman of the panel, expressed a like view with which I am in agreement because it coincides with the decision of Mahoney, J.
121 Further Mr. Gray treated the April 15, 1977 application by CP as a new application and not as an application to review a prior decision under section 63 of the National Transportation Act and I think that he was justified in doing so because the application made on April 15, 1977 was clearly one made under sections 196 and 197 of the Railway Act as one phase of the entire application and under section 216 of that Act as another phase, and the application for variation, review, recision and the like was clearly an alternative matter inserted ex abundante cauteli and that he was justified in treating the application as a new one by virtue of sections 49 and 52 of the National Transportation Act which CP was entitled to make thereunder. In fact the style of the application refers to sections 196, 197 and 216 and to section 52 as well as to section 63 of the Act but not to section 49.
122 In my view the decisions of my brothers Gibson and Mahoney conclusively establish that the Commission has the jurisdiction to hear the CP application dated April 15, 1977 by a panel composed of members other than Jones and LaBorde and accordingly I am bound thereby, if not by any strict application of the principle of stare decisis, then by my own view of the desirability of consistency and certainty among judges of co-ordinate jurisdiction, and especially so among judges of the same court, until such time a higher court has demonstrated that the decisions are in error.
123 To invite one to do otherwise is tantamount to asking me to sit in appeal from my brothers Gibson and Mahoney. That is not my function. I do not propose to exercise that function and I announced at the hearing that I would not do so.
124 Counsel for the applicant, Girard, who was not the counsel who had appeared for this applicant on prior occasions, readily recognized and accepted the validity of that position and assured me that it was not his intention to advance any argument on the panel's jurisdiction based any issues argued before and decided by my brothers Gibson and Mahoney but rather that by the conduct of the hearing by the panel as expressed through the Chairman and circumstances antecedent to the hearing were such as amounted to a denial of natural justice for which reason the parel should be prohibited from proceeding with the hearing as well as the contention that the panel was biased in the legal sense.
125 I take it that this counsel was not the author of the notice of motion nor was he responsible for the grounds advanced therein as justification for the issuance of an order of prohibition.
126 The first ground so advanced in the notice of motion is only susceptible of the interpretation I have put upon it and for the reasons I have expressed does not justify the exercise of my discretion in ordering prohibition.
127 The second ground advanced in the notice of motion is that it would not be in the interest of justice to permit the hearing by the new panel to proceed or to continue to proceed while the decisions of my brothers Gibson and Mahoney are under appeal.
128 The fact that those decisions have been appealed to the Appeal Division of this Court, of which I am well aware, does not operate as a stay of proceedings in an inferior tribunal. By virtue of section 50 of the Federal Court Act the Court may, in its discretion, stay proceedings in any cause or matter where it is in the interest of justice that the proceedings be stayed but section 50 is only applicable to a stay of proceedings in this Court and does not authorize this Court to stay proceedings in another tribunal.
129 Accordingly the second ground so advanced is untenable.
130 There therefore remains the third ground advanced in the notice of appeal which reads
"That the said Respondent, [the said respondent is the Canadian Transport Commission (Railway Transport Committee)] its servants or agents including the new panel so constituted, is biased and has contravened and continues to contravene the tenets of natural justice."
131 This allegation is so broad and all embracing and so lacking in particulars that if it were a pleading in a statement of claim I would, on application therefor, unhesitatingly strike it out.
132 It would appear to be an allegation that all members of the RTC, (including Jones and LaBorde) and all employees and agents are infected with actual bias rather than that their conduct would give rise to an apprehension by reasonably well informed persons that an unbiased appraisal and impartial judgment would be forthcoming. If either should be the case since Parliament has vested the CTC with authority to hear these matters, and only the CTC, then the conclusion is inescapable that Parliament, in this instance, intended to make an exception to the general rule as to bias and the doctrine of ex recessitate would apply.
133 Counsel for the applicant, Girard, so recognized and restricted his argument to a reasonable apprehension of bias on the part of the new panel by reason of remarks made by the Chairman.
134 The prerogative writs, being extraordinary remedies are to be used sparingly and it is a fundamental rule that resort should not be had to such writs until other remedies, such as appeal, have first been exhausted. However that is not an inflexible rule and resort may be had to the prerogative writs when the normal remedies available are not appropriate or effective.
135 The normal remedy available to the applicants herein is to apply to the Court of Appeal to review and set aside the decision or order of the panel under section 28 of the Federal Court Act but in National Indian Brotherhood v. Juneau (1971 F.C. 73) the Chief Justice has held that the decision or order contemplated by section 28 to be subject to review is the ultimate decision or order of the tribunal and not the myriad procedural decisions, orders or rulings such as admissibility of evidence, adjournments and the like which must be made during the course of the hearing to reach the ultimate decision although such procedural rulings may well be factors to be considered, when the ultimate decision is under review, to determine if the tribunal in reaching its ultimate decision failed to observe the principles of natural justice.
136 In the present instance the RTC has not made its ultimate decision or order and the applicants contend that in the conduct of the hearing the principles of natural justice have been contravened as a consequence of which the applicants have been denied a fair hearing.
137 For these reasons I conclude that the circumstances are such that the applicants must not first exhaust other normal remedies available to them but may resort to the prerogative writ of prohibition and that the Trial Division has jurisdiction to hear the present application under section 18 of the Federal Court Act and I so entertained the application.
138 Counsel for the applicant, Girard, whose submissions were adopted, concurred in and endorsed by Counsel for the City of Windsor, contended that there had been a breach of the principles of natural justice in that
(1) the notice of the application was inadequate;
(2) the undertaking that the applicants need not plead to the application until 30 days after a decision had been made on the applicants' request for costs had been dishonoured and revoked;
(3) that the applicants' request for an adjournment had been denied; and
(4) the procedure adopted by the new panel constituted to hear the application with respect to the manner of introducing evidence and cross-examining the witnesses thereon was the denial of a fair hearing to the applicants.
139 Added to the above four grounds it was also the submission of the applicants that the new panel was biased which ground I shall consider separately from the audi alteram partem rule proper.
140 With respect to the first ground the general rule of natural justice requires that persons liable to be directly affected by an administrative tribunal's decision and proceedings leading thereto must be given adequate notice so that they may be present at the hearing, be in a position to make representations and to effectively answer the case they are to meet and to prepare their own case.
141 There was no suggestion made that the time of the notice was insufficient. A notice was published in the press on October 6, 1977 of the hearing to be held in Windsor on November 28, 1977 (in excess of 50 days notice). Written representations of interested persons opposed to the application were required to be filed on or before October 31, 1977, (some 25 days clear notice).
142 The objection to the notice was not the time element but rather the content of the CP application dated April 15, 1977 to the effect that the two applicants herein and represented by counsel particularly did not know the case they had to meet and accordingly were precluded from preparing an appropriate answer.
143 There is a measure of confirmation in this contention to be found in the remarks of the Chairman and the rather unusual procedure he devised to remedy what he considered to be a defect in this respect.
144 He said, after having rejected a request for an adjournment, that in his view the application by CP dated April 30, 1977, in itself does not give the interveners any advance warning of the position CP will take on many questions and that no one knows the actual case to be met.
145 I have reservations as to the accuracy of the Chairmain's remarks.
146 In the first instance if the notice of motion is to be considered as something akin to a statement of claim all that is required is a precise statement of the material facts on which a party pleading relies. If that is the function of the notice of motion then I should think that it does so. I have recited the content of the eight paragraphs contained therein above. The notice specifically and clearly sets out what the applicant, CP, is seeking from the RTC.
147 From a cursory reading of the Rules enacted by CTC I should think that the notice of motion complies with Rules 300 and 305 which are basically the same as the Rules of this Court.
148 A pleading is not to plead evidence, only the material facts which are to be proven by evidence.
149 If there are any particular documents upon which an applicant intends to rely the CTC Rules require the applicant shall submit such supporting documents to the CTC.
150 So far as I can see the application dated April 15, 1977 by CP, while avowed to be a fresh application to be supported by fresh evidence is nevertheless not substantially different from the prior application before the Jones-LaBorde panel with which the applicants herein, these additional applicants named in the motions before my brothers Gibson and Mahoney, and no doubt most of the other interveners, are familiar.
151 Furthermore the CTC Rules provide for notice to produce and production and inspection of documents. I do not know if these rules were invoked by the applicants but certainly they were available to them.
152 I do assume that CP fully intended to supplement the application made to the Jones-LaBorde panel under section 216 of the Railway Act by further evidence and such an assumption is logical because the application under that section was dismissed as not having been substantiated to the satisfaction of that panel and, as I understood their reasons, because it was premature until the 196 and 197 applications had been decided.
153 However there is the added fact that on October 7, 1977 a pre-trial conference was convened in Windsor to be presided over by a counsel for the Commission.
154 There is no evidence before me that this conference did not take place nor what transpired and was concluded thereat. The very purpose of such a conference is to formulate and simplify the issues, amend the application if necessary for greater certainty, a mutual exchange of documents, and such like matters.
155 The fact that such a conference was convened afforded the applicants the opportunity of resolving any uncertainties which may have been present to their minds well in advance of the hearing. If the applicants, did not there resolve their uncertainties or insist on clarification of any uncertainties then the fault lies on the applicants.
156 It therefore seems to me that, because of the unusual circumstances here prevailing, the interested persons must be assumed to know and did in fact know what CP was seeking with exactitude and there were several procedural steps which have been available to them to clarify any lack of exactitude that may have existed in their mind and they had ample opportunity to resort to these procedures if they did not do so, and I have in mind particularly the pre-hearing conference.
157 If it were incumbent upon me to decide the questions of the adequacy of the content of the application my inclination would be that it was adequate and in compliance with the rules of the CTC but I do not have to do so because the Chairman adopted a procedure designed to remedy the defect he thought existed. He directed that CP should adduce the evidence upon which it relied, that there should be no immediate cross-examination of the witnesses by the applicants but that there would be an adjournment from late November, 1977 until early January 1978 in order that the applicants might hear that evidence, prepare cross-examination upon it and to prepare to meet CP's case so adduced by contradictory evidence.
158 It was this very procedure decided upon and implemented by the Chairman which forms the fourth ground for the contention that there has been a denial of natural justice and that ground amounts to simply this, as I understood the submission by counsel for the applicants, counsel insisted that they had the right to cross-examine witnesses forthwith upon the completion of their testimony in chief, and that the failure to afford that right was tantamount to a failure to afford the right to effective cross-examination.
159 Upon the denial of their further requests for an adjournment inspired by this procedure (prior requests having been previously denied) counsel for the applicants present at the hearing then withdrew.
160 In Millward v. Public Service Commission (1974 2 F.C. 530) I had occasion to comment upon counsel and his clients withdrawing from the hearing when a request for the hearing to be conducted in camera followed by a request for an adjournment on the denial of the former request which was also denied. The tribunal then proceeded to hear evidence in the absence of the applicant and his counsel.
161 I expressed the view that notice to a party affected is a condition precedent to the validity of the proceedings but that if notice was given and the party did not attend the proceedings that voluntary act does not vitiate the proceedings conducted in the party's absence.
162 I then added that I could see
"no fundamental difference in the situation where a party does not attend a hearing pursuant to notice from the situation where a party voluntarily leaves a hearing before its conclusion because of adverse procedural rulings."
and I failed to see
"how that party can take the position that he was denied the opportunity of presenting his case."
163 The panel, in the absence of counsel, heard the evidence adduced by CP and then adjourned.
164 There is no distinction between the situation in the Millward case and the present case except that before the RTC the evidence adduced by CP was recorded so that a transcript will be available to the applicants. Counsel's action therefore does not place their clients in a disadvantageous position.
165 In Attorney General of Manitoba et al. v. The National Energy Board et al. (1974 2 F.C. 502) it was held that the Board must hold a full adversary hearing and at that hearing the applicants for and the opponents of a licence must be treated on an equal footing with no discriminatory advantage being bestowed on one side or the other but to permit the applicant to give oral evidence without the right of cross-examination and to make oral argument while restricting the opponents to written representations is to confer a discriminatory advantage on the applicant.
166 Accordingly the Board treated the applicant and the interveners differently and in a manner not in conformity with the statutory requirements of a hearing under section 20 of the National Energy Act.
167 In the National Energy Board case there was a denial of the right to cross-examination on oral testimony.
168 That was not the ratio of the decision but the denial of that right and other differences led to the conclusion that there was a hearing as contemplated under the Statute.
169 In the present matter there has not been a denial of the right to cross-examine CP's witnesses nor to the interveners to call oral evidence in contradiction.
170 What there has been is a deferral of those rights and not a denial thereof.
171 It is axiomatic that an administrative tribunal is the master of its own procedures in the absence of an express statutory provision governing the procedure to be followed and subject always to the obligation to observe the principles of natural justice when the proceedings are quasi-judicial.
172 I can find no express statutory provision in the Railway Act or the National Transportation Act nor in the rules made under the authority conferred on the CTC to make which prohibits the deferral of the right to cross-examine nor was any such provision cited to me.
173 Accordingly I can see no breach of the principles of natural justice in the postponement of cross-examination and the right to introduce contradictory evidence (as contrasted to a denial thereof) over the period of an adjournment. It sometimes happens in Courts of Law but not for such a protracted period as contemplated by the Chairman in this instance. For my own part I strive to bring on cross-examination immediately following conclusion of examination in chief and I strive to avoid the interruption of cross-examination once begun because of the possibility of conferring a possible advantage on one side or the other but it is not always possible to do so due to the exigencies of time and human endurance.
174 There is no doubt in my mind that the Chairman, in adopting the expedient that he did, was actuated by his feeling that the interveners had not been apprised of the evidence to be adduced and his motive in doing so was to permit the interveners to hear that evidence and then by adjourning to give them the opportunity to prepare their cross-examination and evidence in contradiction.
175 To me the procedure so adopted confers on the interveners the advantage of prolonged study of the evidence led by CP and that is advantageous to the interveners while recognizing that the advantage of an astute extemporaneous cross-examination may be lost. It also seems to me that in his efforts to be fair the Chairman may have placed CP at a disadvantage but CP makes no complaint and seeks no relief therefrom. I have not lost sight of the possibility that the witnesses will also have the time of the adjournment to consider the evidence they have given but my conjecture is that, bearing in mind the subject matter of the application, the greater number of witnesses called would be expert witnesses testifying on scientific matters such as noise levels, and pollution hazards and their remedies, the preponderant advantages of the location of the sidings on their present site as opposed to an alternative site, provision for the safety of the public, the traffic to be carried over the sidings and like matters. That being so, my own experience has been that most expert witnesses are extremely knowledgeable in their respective fields and rarely retract evidence they have given convinced as they are of its accuracy. However the opinion of an expert witness is only as good as the reasons on which it is based and, in my view, the opportunity for a person adverse in interest to examine those reasons in detail, to consult other experts as to the validity of these reasons and to call other witnesses to contradict the validity of these reasons is a distinct advantage to the interveners, and that the overall advantage redounds to the interveners.
176 For the foregoing reasons I conclude that there has been no breach of natural justice by the Chairman in electing to proceed as he did.
177 Another ground advanced as contrary to natural justice was the decision of RTC to revoke its undertaking not to proceed until the original panel or a subsequent panel have reached a decision as to costs.
178 As I appreciate that undertaking it was given by the counsel of the Commission in a letter written by him dated June 27, 1977. Being unfamiliar with status of counsel of the Commission to give that undertaking which I feel should have been given by the Jones-LaBorde panel, if at all, the matter has been resolved for me by the decisions of my brothers Gibson and Mahoney. Gibson, J. has held that a board comprised of members other than Jones and LaBorde has jurisdiction to hear the matter of costs and Mahoney, J. has held when Messrs. Jones and LaBorde had failed to reach an agreement on the matter of costs there was in fact a decision that the application for costs was refused.
179 Added to this where a public body is vested with the exclusive obligation for the regulation of railways, as the CTC is by the National Transportation Act, any undertaking which purports to impose a fetter on that obligation is void if it is incompatible with the Commission's obligation to discharge its public responsibility as the Commission seeks to do by convening the panel to hear CP's application dated April 15, 1977 at Windsor on November 28, 1977.
180 The most that can be said that the Commission by having given the undertaking and chosing to revoke and dishonour it once given does not enhance its image in the eyes of the citizens of Windsor but for the reasons given it does not vitiate the proceedings taken in disregard thereof.
181 There were several requests for adjournments the first of which was by telegram addressed to the Commission immediately upon notice having been given that the application would be heard in Windsor on November 28, 1977 and again at the outset of the hearing on that date. The applications must have been based, amongst other things, on the fact that the decisions of Gibson J. and Mahoney J. to the effect that there was jurisdiction in a panel comprised of members different from those who constituted the panel which heard the first application had been appealed and the undertaking given by or on behalf of the Commission or the original panel was valid and irrevocable. As I have previously indicated neither of which grounds taken separately or in their cumulative effect is an absolute justification for an adjournment for the reasons I have expressed.
182 The most recent decision dealing with the refusal to grant a requested adjournment is that of my brother Collier in Union of British Columbia Indian Chiefs v. Westcoast Transmission Company Limited and the National Energy Board dated December 7, 1977, Court file T-4347-77, as yet unreported.
183 An application had been made to the Board for a certificate of public convenience and necessity in respect of proposed pipelines. On October 11, 1977 the Board ordered a public hearing to commence on November 15, 1977. Notice of the Board's order was mailed to the applicant before Collier J. on October 11, 1977 and was published in a number of newspapers. For some unexplained reason the notice, though duly received, was not brought to the attention of the appropriate employees of the applicant until November 4, 1977, whereupon the applicant communicated with the native people who would be affected in the area of the proposed pipelines with the object of obtaining their views and instructions.
184 At the opening of the hearing counsel for the applicant requested an adjournment to a fixed date.
185 The Chairman refused the request because notice had been given in accordance with the Board's practice but the Chairman adopted a suggestion of counsel to the Board that matters of public interest including environmental questions be considered last.
186 Collier, J. said
"The question of adjournment, whether before a court, quasi-judicial tribunals or bodies, or administrative bodies, is always a matter of discretion. That does mean an appropriate court cannot, in a proper case, intervene where that discretion has not been exercised fairly, or to put it in the legal jargon, not in accordance with the principles of natural justice."
187 At this point in respect of fairness he referred to M.M.I. v. Hardayal (1977) 75 D.L.R. (3d) 465 and to his own decision in Queen v. Magrath T-2626-76, Nov. 8, 1977 unreported where he referred to recent decisions of the Supreme Court of Canada on this point.
188 He continued:
"The case law dealing with the grant or refusal of adjournments, particularly in criminal matters, was reviewed by Laskin, J.S. (now C.J.C.) in Reg. v. Botting ( 2 O.R. 121).
The principles there set out apply to so-called civil proceedings.
In the case before me, the Chairman of the Board heard full and able submissions on behalf of the applicant and others. It cannot be said, to my mind, his refusal to grant the adjournment was, in the circumstances, an exercise of discretion tainted with unfairness or denial of natural justice...To borrow a phrase from Laskin, J.A. in the Botting case: "...a discretion is vested ... to grant or refuse an adjournment; even if ... (it) ... is unwise to refuse an adjournment ...' that discretion will not be interfered with unless there has been a denial of natural justice. It may be that others, in the position of the Chairman, might have granted a limited adjournment. It may also be that some may consider the refusal as unwise, politically or in other senses. Those things are not for me to say, nor do I express any opinion."
189 In the case before me the Chairman heard argument from the applicants. He dealt with the question of the undertaking expressing the view that he was not bound by it. His view in this respect coincides with the view expressed by Mahoney J. which I consider binding upon me. He expressed the view that the panel of which he was the Chairman had the jurisdiction to hear the matter which view coincides with the decisions of Gibson J. and Mahoney J. He was aware that the decisions of Gibson J. and Mahoney J. had both been appealed but, as I have pointed out, an appeal does not operate as a stay of proceedings before an inferior tribunal of which the Chairman must have been aware. He also pointed out that he had a duty under the statute to hear an application which, in his view, CP was entitled to make and that it was the intention of the panel of which he was Chairman to fulfil its obligations forthwith. The panel must have been fully aware of the delays, which had occurred in the past in bringing this matter to its conclusion and of the age old maxim that justice delayed is justice denied and that it would, no doubt in his view, be unconscionable to brook further delay, bearing in mind that there are always two parties (or more) to a dispute and both are entitled to have that dispute resolved as expeditiously as possible.
190 For the foregoing reasons it cannot be said that the Chairman's denial of an adjournment "was, in the circumstances, an exercise of discretion tainted with unfairness or a denial of natural justice."
191 Added to this, however, the Chairman had reservations as to the adequacy of the content of the notice of the application in that it did not disclose with certainty the relief that CP was seeking, a reservation which I do not share for the reasons I have expressed.
192 He resolved the problem he posed for himself by the expedient of requiring CP to adduce its evidence in chief, deferring the applicants' cross-examination thereon and adjourned the matter. In effect, he did in fact grant an adjournment, not for the reasons advanced by the applicants but for reasons of his own and subject to conditions imposed by himself.
193 I have no doubt whatsoever that the Chairman adopted the expedient he did based on his obvious predilection to be fair to the applicants. A quasi-judicial tribunal is the master of its own procedure and I am aware of no statutory provisions or other impediment, other than a denial of natural justice, which would preclude the Chairman from imposing the conditions that he did as a matter of procedure.
194 For the reasons previously expressed I do not think that the adoption of this procedure amounts to a denial of natural justice but rather, with respect to the applicants' position, it is an implementation of those principles.
195 There remains the question of bias on the part of this panel.
196 There is no question of financial interest on the part of any of the members of the panel which would be bias automatically unless the financial interest was too remote or Parliament intended to waive bias by the statute as I have previously mentioned.
197 The allegations of bias, in the notice of motion as I have previously pointed out, extends to the Commission as a whole, based on the conduct of the Commission of these and antecedent proceedings. For the reasons previously expressed I am of the opinion that such contention was untenable and it was not advanced before me. The contention of bias before me was predicated primarily upon the conduct of the hearing, particularly by the Chairman.
198 The most recent statement of the test of bias to be applied and a discussion thereof is in the reasons for judgment delivered by Laskin C.J.C. for the majority of the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board (1976) 68 D.L.R. (3d) 716 where he said at pages 732-3:
"(The past activity of the Chairman of the Board), in my opinion, cannot but give rise to a reasonable apprehension of bias, which reasonably well-informed persons could properly have, of a biased appraisal and judgment of the issues to be determined on a s.44 application.
This Court in fixing on the test of reasonable apprehension of bias, as in Ghirardose v. Minister of Highways (B.C.) (1966 S.C.R. 367) and again in Blanchette v. C.I.S. Ltd. (1973) 3 S.C.R. 833 (where Pigeon J. said that 'a reasonable apprehension that the Judge might not act in an entirely impartial manner is ground for disqualification"), was merely restating what Rand J., said in Szilard v. Szasz (1955 S.C.R. 3 at pp. 6-7, in speaking of the 'probability or reasoned suspicion of biased appraisal and judgment, unintended though it may be". This test is grounded in a firm concern that there be no lack of public confidence in the impartiality of adjudicative agencies, and I think that emphasis is lent to this concern in the present case by the fact that the National Energy Board is enjoined to have regard for the public interest."
199 The majority held that Mr. Crowe, the Chairman of the National Energy Board, because of his previous association with a party before the Board, was the object of a reasonable apprehension of bias. Similar circumstances applied in Szilard v. Szasz but the factual situation in the present motion is entirely different.
200 There are similarities though in that the Canadian Transport Commission, like the National Energy Board, is also "enjoined to have regard for the public interest" in that it is vested with the regulation of railways and the public safety and convenience, and, while I have expressed the opinion that an allegation of the entire Commission cannot be impugned with bias that does not hold with respect to a particular panel.
201 Here there is no evidence that the Chairman or any of the members of the panel had any previous association with CP in the sense that Mr. Crowe had or the real estate agent had in Szilard v. Szasz, and that is why I have said the factual situation is different in this motion.
202 In the plethora of decided cases expressions such as "reasonable apprehension of bias", "reasonable suspicion of bias", and "real likelihood of bias" have been used interchangeably without distinction. Based on those decisions I myself when considering questions of bias have used these expressions gleaned from what I considered to be impeccable authority but my inclination was to adopt the expression "real likelihood of bias" more frequently because on reflection that expression imparts an objective test rather than a subjective one as is implicit from the use of the word "apprehension" as contrasted with "likelihood".
203 In his dissenting judgment in the National Energy Board case, de GrandprČ J. with whom Martland and Judson JJ. concurred, he applied the same test as did Laskin C.J.C. but arrived at a different result.
204 de GrandprČ J said at pp. 735-6:
"... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information."
205 He could:
"...see no real difference between the expressions found in the decided cases, be they 'reasonable apprehension of bias', 'reasonable suspicion of bias' or 'real likelihood of bias'. The grounds for this apprehension must, however be substantial and I agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the 'very sensitive or scrupulous conscience.'"
206 I can perceive no difference in principle to the approaches between the judgment of Laskin C.J.C. and de GrandprČ J. but it is significant that de GrandprČ J. does refer to "real likelihood of bias" whereas the majority excluded that formula.
207 It may be that, a "real likelihood of bias" imposes a higher standard on an applicant for prerogative relief than does a "reasonable apprehension of bias" but in view of the majority's silence as to the text of a "real likelihood" such expressions of the test as to whether "a reasonable man would consider there was a likelihood of bias", which has been frequently propounded, may not be an accurate statement of the law.
208 Accordingly I apply the test of the majority to ascertain if the circumstances outlined would give rise to "a reasonable apprehension, which reasonably well-informed persons could properly have, of a biased appraisal and judgment of the issues to be determined."
209 From the remarks addressed to the Board by the interveners from the floor, some of which I have quoted as illustrative of the prevailing attitude, such as "What are you doing here", "Is this going on and on. If it is CPR will win that is obvious." It was also suggested that since the prior panel had decided in favour of the opponents that it was replaced by a different panel that would not make the same "mistake". There were queries as to "How do we obtain justice" and "Has the RTC given us reason to think we will get justice."
210 These remarks are most certainly expressions of an apprehension of a "biased appraisal and judgment of the issues to be determined" but the questions are is it a "reasonable" apprehension and "a reasonable apprehension, which reasonably well-informed persons could properly have."
211 The assumptions made in the remarks are that the Board was resolved to bring this matter to a hasty conclusion and that the conclusion would be favourable to CP.
212 Those assumptions were not warranted on the part of the interveners and I can see no reason why I should make similar assumptions in this motion.
213 The Chairman made logical and detailed replies to those allegations. He explained what the panel was doing there, that it had jurisdiction to hear the matter and a duty to hear the matter with expedition which was previously lacking, all of which were well founded in my view.
214 I cannot refrain from commending the Chairman for his patience, the logic of his explanations in a patently hostile atmosphere but for all the good his explanations did he might as well not have made them for they fell on deaf or uncomprehending ears.
215 In my view the "apprehension" held by the interveners was not, "reasonable" nor was it an apprehension "which reasonably well-informed persons could properly have". The interveners had their preconceived views from which they were not willing to be disabused and they seek to attribute preconceived views to the panel.
216 In Re Schabas et al. and Caput of the University of Toronto (1974) 52 D.L.R. (3d) 495, Pennell J. said at p.506:
"It is to be assumed that a body of men entrusted by the Legislature with large powers affecting the rights of others will act with good faith."
217 In my view that presumption has not been rebutted in the present instance.
218 In the result therefore I conclude that bias has not been established in accordance with the test enunciated in the National Energy Board case above and, for the reasons I have expressed, there has not been a denial of natural justice to the applicants.
219 It follows that the motion is dismissed.
220 While CP has been successful I consider it expedient in the light of all the circumstances, that I should not exercise my discretion so as to award costs to the successful party but rather that each party shall bear its own costs.
* * * * *
National Transportation Act
49. Any power or authority vested in the Commission may, though not so expressed, be exercised from time to time, or at any time, as the occasion may require.
52. Whenever any Act of the Parliament of Canada requires or directs that before the doing of any work the approval of the Commission must be first obtained, and whenever any such work has been done without such approval, the Commission nevertheless has power to approve the work and to impose any terms and conditions upon such company that may be thought proper in the premises; but where the doing of such work affects the safety of the public or the employees, no such approval shall be given without due notice and hearing.
63. The Commission may review, rescind, change, alter or vary any order or decision made by it, or may re-hear any application before deciding it. R.S., c.234, s.52.
73. (1) The costs of and incidental to any proceeding before the Commission, except as herein otherwise provided, are in the discretion of the Commission, and may be fixed in any case at a sum certain, or may be taxed.
(2) The Commission may order by whom and to whom any costs are to be paid, and by whom they are to be taxed and allowed.
(3) The Commission may prescribe a scale under which such costs shall be taxed. R.S., c.234, s.62.
196. (1) The railway of the company may, if leave therefor is first obtained from the Commission as hereinafter authorized, but shall not without such leave, be carried upon, along or across any existing highway; the compensation, if any, payable by the company to adjacent or abutting landowners shall be determined under the arbitration sections of this Act in so far as such sections are applicable, and the Commission shall not grant leave to any company to carry any street railway or tramway, or any railway operated or to be operated as a street railway or tramway, along any highway that is within the limits of any city or incorporated town, until the company has first obtained the consent therefor by a by-law of the municipal authority of such city or incorporated town; and where leave is obtained to carry any railway along a highway the Commission may require the company to make compensation to the municipality if the Commission deems proper, such compensation to be determined under the arbitration sections of this Act, in so far as such sections are applicable.
(2) The company shall, before obstructing any such highway by its works, turn the highway so as to leave an open and good passage for carriages, and, on completion of the works, restore the highway to as good a condition as nearly as possible as it originally had.
(3) Nothing in this section deprives any such company of rights conferred upon it by any Special Act of the Parliament of Canada, or amendment thereof, passed prior to the 12th day of March 1903. R.S., c.234, s.258.
197. (1) Upon any application for leave to construct upon, along or across any highway, or to construct a highway along or across any railway, the applicant shall submit to the Commission a plan and profile showing the portion of the railway and highway affected.
(2) The Commission may, by order, grant such application in whole or in part and upon such terms and conditions as to protection, safety and convenience of the the public as the Commission deems expedient, or may order that the railway be carried over, under or along the highway, or that the highway be carried over, under or along the railway, or that the railway or highway be temporarily or permanently diverted, or that such other work be executed, watchmen or other persons employed, or measures taken as under the circumstances appear to the Commission best adapted to remove or diminish the danger or obstruction, in the opinion of the Commission, arising or likely to arise in respect of the granting of the application in whole or in part in connection with the crossing applied for, or arising or likely to arise in respect thereof in connection with any existing crossing.
(3) When the application is for the construction of the railway, upon, along or across a highway, all the provisions of law at such time applicable to the taking of land by the company, to its valuation and sale and conveyance to the company, and to the compensation therefor, including compensation to be paid to adjacent or abutting landowners as provided by section 196, apply to the land exclusive of the highway crossing, required for the proper carrying out of any order made by the Commission.
(4) The Commission may exercise supervision in the construction of any work ordered by it under this section, or may give directions respecting such supervision.
(5) When the Commission orders the railway to be carried over or under the highway, or the highway to be carried over or under the railway, or any diversion temporarily or permanently of the railway or the highway, or any works to be executed under this section, the Commission may direct that detailed plans, profiles, drawings and specifications be submitted to the Commission.
(6) The Commission may make regulations respecting the plans, profiles, drawings and specifications required to be submitted under this section. R.S., c.234, s.259.
216. (1) No railway, and no portion thereof, shall be opened for the carriage of traffic, other than for the purposes of the construction of the railway by the company, until leave therefor has been obtained from the Commission, as hereinafter provided.
(2) When the company is desirous of so opening its railway or any portion thereof, it shall make an application to the Commission for authority therefor, supported by affidavit of its president, secretary, engineer or one of its directors, to the satisfaction of the Commission, stating that the railway, or portion thereof, desired to be opened, is in his opinion sufficiently completed for the safe carriage of traffic, and ready for inspection.
(3) Before granting such application, the Commission shall direct an inspecting engineer to examine the railway, or portion thereof, proposed to be opened.
(4) If the inspecting engineer reports to the Commission, after making such examination, that in his opinion the opening of the railway or portion thereof so proposed to be opened for the carriage of traffic, will be reasonably free from danger to the public using the same, the Commission may make an order granting such application, in whole or in part, and may name the time therein for the opening of the railway or such portion thereof, and thereupon the railway, or such portion thereof as is authorized by the Commission, may be opened for traffic in accordance with such order.
(5) If such inspecting engineer, after the inspection of the railway, or any portion thereof, reports to the Commission that, in his opinion, the opening of the railway would be attended with danger to the public using the railway by reason of the incompleteness of the works or permanent way, or the insufficiency of the construction or equipment of such railway, or portion thereof, he shall state in his report the grounds for such opinion, and the company is entitled to notice thereof, and shall be served with a copy of such report and grounds, and the Commission may refuse such application in whole or in part, or may direct a further or other inspection and report to be made.
(6) If thereafter, upon such further or other inspection, or upon a new application under this section, the inspecting engineer reports that such railway, or portion thereof, may be opened without danger to the public, the Commission may make an order granting such application in whole or in part, and may name the time therein for the opening of the railway, or such portion thereof, and thereupon the railway, or such portion thereof as is authorized by the Commission may be opened for traffic in accordance with such order.
(7) The Commission, upon being satisfied that public convenience will be served thereby, may, after obtaining a report of an inspecting engineer, allow the company to carry traffic over any portion of the railway not opened for the carriage of traffic in accordance with subsections (1) to (6). R.S., c.234 s.279.