T-139-74
The Center for Public Interest Law (Petitioner)
v.
The Canadian Transport Conunission (Respond-
ent)
and
Bell Canada (Mise en cause)
Trial Division, Kerr J.—Montreal, January 21;
Ottawa, January 25, 1974.
Writ of prohibition—Application to prevent Telecommuni
cation Committee from hearing Bell Canada's application
for revision of telephone rates—Prior decision six months
earlier—Whether disguised appeal—Whether reasonable time
elapsed for new hearing Railway Act, R.S.C. 1970, c. R-2,
s. 320(2).
The petitioner applied for an order under section 18 of the
Federal Court Act to prohibit the Canadian Transport Com
mission from hearing an amended application by Bell
Canada for revisions to telephone tariff of rates on the
grounds that (1) Bell Canada's amended application is in
substance a disguised appeal from the Commission's deci
sion given about six months earlier and the time had expired
within which to appeal therefrom and because it is an appeal
the Telecommunication Committee of the Commission has
no jurisdiction to hear it; (2) if it is not an appeal, the
Committee has no jurisdiction to hear it since Bell Canada
did not wait a reasonable length of time before bringing the
amended application and the issues are therefore res
judicata.
Held, the application for a writ of prohibition is refused.
As to (1), circumstances and conditions that affect Bell
Canada's business are not static and in the light of condi
tions expected to prevail in 1974 (the year in which the rates
were to become effective) the amended application is not a
disguised appeal but is a totally new application for revised
rates. Regarding (2), the Commission's jurisdiction to revise
rates "from time to time" under section 320(2) of the
Railway Act, R.S.C. 1970, c. R-2, should be exercised
"according to the rules of reason and justice" (Sharp v.
Wakefield [1891] A.C. 173). There is no specification of any
particular period of time in section 320(2) and circum
stances and conditions not being static, the Committee has
jurisdiction to hear the application for revision.
Re Von Dembinska [1954] 2 All E.R. (C.A.) 46; C.P.R.
v. Province of Alberta [1950] S.C.R. 25, applied.
APPLICATION for writ of prohibition.
COUNSEL:
Ronald I. Cohen and Pamela A. Sigurdson
for petitioner.
W. G. St. John for respondent.
Ernest E. Saunders, Q.C., and Robert S.
O'Brien, Q.C., for mise en cause.
SOLICITORS:
The Center for Public Interest Law, Mont-
real, for petitioner.
The Canadian Transport Commission,
Ottawa, for respondent.
O'Brien, Hall and Saunders, Montreal, for
mise en cause.
KERR J.—This is an application for a writ of
prohibition under section 18 of the Federal
Court Act. Specifically, the petitioner has
applied for an order:
(a) that the Respondent cease all hearings and proceedings
concerning the Amended Application "B" of Bell Canada;
(b) that the Respondent has no jurisdiction to hear or to
continue the proceedings under Amended Application "B"
of Bell Canada upon the following grounds:
(a) Amended Application "B" is in substance a disguised
appeal from the decision of the Respondent dated May
19, 1972;
(b) As an appeal, Amended Application "B" is invalid
since it was filed beyond the thirty-day limitation and it
cannot therefore be entertained by the Respondent;
(c) As an appeal, Amended Application "B" cannot in
any case be heard by the Telecommunication Committee
of the Respondent since appeals do not fall within the
jurisdiction of that Committee;
(d) Even if Amended Application "B" is deemed not to
be an appeal, the Respondent does not have jurisdiction to
hear it since the said Application has been brought too
soon after the Respondent's Decision of May 19, 1972;
(e) Since the Mise en Cause has not waited a reasonable
length of time before filing the Amended Application "B",
the issues raised by the said Application are res judicata
and cannot be heard by the Respondent.
I will next indicate in chronological sequence
certain salient background facts pertinent to this
application.
Bell Canada, hereinafter called "Bell", filed
an application', dated November 5, 1971, with
Exhibit "B" to the affidavit of Mrs. Pamela A. Sigurd-
son filed herein.
the respondent, hereinafter called the "Commis-
sion", for an order approving to be effective at
the earliest possible date, certain revisions to its
tariffs of rates, as set forth in Schedule I
attached thereto, and for an order approving
interim revisions to be effective January 1,
1972.
On May 19, 1972, the Telecommunication
Committee of the Commission issued a
decision 2 on Bell's said application dated
November 5, 1971, in the result allowing Bell to
file new tariffs effecting increased rates.
Bell filed an Application "A", dated Novem-
ber 10, 1972, with the Commission for an order
approving revisions to its tariffs, to become
effective in 1973.
Concurrently with the filing of Application
"A" Bell also filed with the Commission an
Application "B" 3 , dated November 10, 1972,
for an order approving, to be effective January
1, 1974, revisions to its tariffs, as set out in
Schedules 1 and 2 to that application.
The Telecommunication Committee held
hearings on Application "A" and gave its deci
sion on it on March 30, 1973, allowing certain
increases in rates. Counsel advised that the
Governor in Council suspended the coming into
force of the rates, and subsequently lesser
increases were allowed to come into effect.
On August 16, 1973, Bell wrote a letter 4 , to
the Telecommunication Committee, enclosing
Amended Application "B", dated August 15,
1973, and asked that the amendments be
allowed and that Amended Application "B" be
the application and schedules in respect of
which approval was being sought. Amended
Application "B" 5 asks for an order approving,
to be effective January 1, 1974, certain revi-
2 Exhibit "A" to Mrs. Sigurdson's affidavit.
3 Exhibit "C" to Mrs. Sigurdson's affidavit.
4 Exhibit "J".
5 Exhibit "D" to Mrs. Sigurdson's affidavit.
sions to Bell's tariffs of rates, as set forth in
Amended Schedules 1 and 2 thereto.
On September 5, 1973, the Telecommunica
tion Committee issued an order, No. T-304 6 ,
which, after referring to Bell's letter of August
16, ordered, in part, as follows:
1. Amended Application "B" dated August 15th, 1973,
together with the Schedules referred to therein, be and the
same is hereby accepted as the only Application of Bell
Canada and that Application "B" dated November 10th,
1972, be and is hereby struck from the record;
In October 1973 the petitioner filed an
Intervention ? with the Telecommunication
Committee.
On December 18 and 19, 1973, the Telecom
munication Committee held a pre-hearing con
ference with parties, including the petitioner,
and on December 21, 1973, rendered a
decisions that Amended Application "B" is not
an appeal from any previous decision.
The Telecommunication Committee sent out a
Notice of Hearing 9 , dated January 11, 1974, to
interested parties stating that it will commence
its hearing on Bell's Amended Application "B",
commencing on February 4, 1974.
The section of the Federal Court Act that
gives the Trial Division jurisdiction to issue a
writ of prohibition is section 18, which reads as
follows:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohi
bition, writ of mandamus or writ of quo warranto, or
grant declaratory relief, against any federal board, com
mission or other tribunal; and
(6) to hear and determine any application or other pro
ceeding for relief in the nature of relief contemplated by
paragraph (a), including any proceeding brought against
the Attorney General of Canada, to obtain relief against a
federal board, commission, or other tribunal.
6 Exhibit "B-4".
7 Exhibit "E" to Mrs. Sigurdson's affidavit.
8 Exhibit "F" to Mrs. Sigurdson's affidavit.
9 Exhibit "G" to Mrs. Sigurdson's affidavit.
Section 18 should be read with section 28(1)
and (3) and section 29 of the Federal Court Act,
and section 64(2) of the National Transporta
tion Act, R.S.C. 1970, c. N-17, as amended by
R.S.C. 1970, c. 10 (2nd Supp.), which provides
for an appeal from the Commission to the Fed
eral Court of Appeal 10 . Counsel for the Com
mission and counsel for Bell submitted that,
having regard to those provisions, the Trial
Division has no jurisdiction to issue a writ of
prohibition on this application. But nearly all the
argument was directed to the issue whether the
Commission has jurisdiction to proceed to hear
Bell's Amended Application "B", and I shall
deal with that issue.
10 The several provisions are as follows:
Federal Court Act:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(6) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
(3) Where the Court of Appeal has jurisdiction under this
section to hear and determine an application to review and
set aside a decision or order, the Trial Division has no
jurisdiction to entertain any proceeding in respect of that
decision or order.
29. Notwithstanding sections 18 and 28, where provision
is expressly made by an Act of the Parliament of Canada for
an appeal as such to the Court, to the Supreme Court, to the
Governor in Council or to the Treasury Board from a
decision or order of a federal board, commission or other
tribunal made by or in the course of proceedings before that
board, commission or tribunal, that decision or order is not,
Prohibition is one of the oldest writs known
to the law. In most cases where it has been
granted the ground of challenge has been excess
or lack of jurisdiction, but it has also been
granted on other grounds, including a denial of
natural justice on the part of the tribunal against
which prohibition is sought. See Judicial Review
of Administrative Action, 2nd Ed., by S. A. de
Smith for an excellent review of the history and
development of the writ. In the present applica
tion the ground advanced by the petitioner is
lack of jurisdiction in the Commission and in its
Telecommunication Committee to hear Amend
ed Application "B". The petitioner bases its
contention on two footings: (1) that Amended
Application "B" is in substance an appeal from
the Commission's decision dated May 19, 1972,
that it is invalid because it was filed more than
30 days after that decision was communicated
to the parties, and that, as an appeal, it cannot
be heard by the Telecommunication
Committee"; (2) that even if it is not an appeal
the Commission does not have jurisdiction to
to the extent that it may be so appealed, subject to review or
to be restrained, prohibited, removed, set aside or otherwise
dealt with, except to the extent and in the manner provided
for in that Act.
National Transportation Act:
64. (2) An appeal lies from the Commission to the Feder
al Court of Appeal upon a question of law, or a question of
jurisdiction, upon leave therefor being obtained from that
Court upon application made within one month after the
making of the order, decision, rule or regulation sought to be
appealed from or within such further time as a judge of that
Court under special circumstances allows, and upon notice
to the parties and the Commission, and upon hearing such of
them as appear and desire to be heard; and the costs of such
application are in the discretion of that Court.
" Section 24(1) of the National Transportation Act pro
vides that the Commission for the purposes of performing
its duties shall establish certain named committees and
"such other committees as the Commission deems expedi
ent", and subsection (3) provides:
(3) Notwithstanding anything in the Railway Act or the
National Energy Board Act governing matters before the
Commission, a committee of the Commission may, in
accordance with the rules and regulations of the Commis
sion, exercise all the powers and duties of the Commission
and the orders, rules or directions made or issued by a
committee of the Commission have effect, subject to sub
section (4), as though they were made or issued by the
Commission.
hear it because it has been brought too soon
after the Commission's decision of May 9,
1972, Bell has not waited a reasonable length of
time before filing it, and the issues raised by it
are res judicata and cannot be heard by the
Commission.
Pursuant thereto the Commission established various com
mittees, including a Telecommunication Committee and a
Review Committee and by its General Rules directed each
of them to perform all functions of the Commission under
the enactments mentioned after its name in the General
Rules, specifying the following for the Telecommunication
Committee by Rule 260(1)(f):
260. (1)(f) Telecommunication Committee:
(i) sections 22, 23 and 27 of the Act, in respect of
telecommunications;
(ii) the Railway Act in respect of matters pertaining to
telecommunications and without limiting the generality
of the foregoing, sections 312 to 336 in so far as they
relate to telephone and telegraph matters, including the
sections made applicable to all companies, as defined in
section 320 of the Act, and to all telegraph and tele
phone systems, lines and business of such companies
within the legislative authority of the Parliament of
Canada;
(iii) Telegraphs Act;
(iv) the special Act of all telegraph and telephone com
panies subject to the legislative authority of Parliament
of Canada; and
(v) generally all powers, duties and functions of the
Commission under any statute in respect of
telecommunications;
and under the heading "Review of Orders or Decisions"
made Rule 770 which reads as follows:
770. Notwithstanding anything in these rules:
(a) subject to paragraph (c), the Review Committee shall
perform all functions and exercise all powers of the
Commission in respect of any application to review an
order or a decision of a committee pursuant to section 63
of the Act, and for those purposes three members of the
Review Committee shall form a quorum;
(b) any such application shall be filed with the Secretary
within 30 days after the order or decision is communicat
ed to the parties unless the Review Committee enlarges
the time for the making thereof; and
(c) the Review Committee shall determine whether the
order or decision should be reviewed and may then, in its
discretion, either dispose of the application or refer it for
review to the committee that had made or issued such
order or decision.
Counsel for the petitioner referred to similari
ties in Bell's application dated November 5,
1971, and its Application "B" and Amended
Application "B". In each application Bell sought
a fair rate of return on capital. For instance, in
its November 5, 1971, application Bell said that
under foreseeable circumstances it needed a
rate of return in the range of 8.2% to 9% on
total average capital, and that the rates pro
posed, if in effect for the full year 1972, were
designed to produce revenues which would
result in an estimated return on total average
capital of 8.2%; and in Amended Application
"B", it estimated that the rates therein proposed
for 1974, if in effect for all of 1974, would yield
revenues that would earn a rate of return on
total average capital at the lower end of the
range of reasonable rate of return, which would
be fair under circumstances expected to prevail
in 1974, and the rates would be just and reason
able. The Commission's decision of May 19,
1972, stated that "at this time, a fair and reason
able maximum permissive rate of return on total
average capital for Bell Canada is 8.2%", and
the Commission allowed rates estimated to
yield, if in effect for all of 1972, a rate of return
on total average capital of 7.8%.
Counsel for the petitioner also referred to
similarities in the memorandum of evidence that
Bell provided and filed in January 1972 (Exhibit
"H" herein) and the memorandum of evidence
it filed in December 1973 (Exhibit "I"), each of
which is voluminous and contains numerous
documents on matters such as income, rate of
return, earnings requirements, cost of debt,
capital structure, bond markets, economic
review, financing, etc., which are usually rele
vant in general rate cases. It is not essential to
indicate in these Reasons the similarities in the
memoranda of evidence.
I canno t find any justification to hold that
Bell's Application "B" or its Amended Applica-
tion "B" is "in substance a disguised appeal" (to
use the petitioner's words) from the Commis
sion's decision of May 19, 1972, or that it is an
appeal of any kind, either in form or substance,
from a decision of the Commission. In my opin
ion it is a new application, not an appeal from a
previous decision of the Commission or its Tele
communication Committee. True, it seeks
approval of tariffs of rates designed in Bell's
estimation to yield revenues that will give the
company a fair rate of return on capital, and the
rate of return proposed in these later applica
tions is within the range proposed in the applica
tion of November 5, 1971, namely, a range of
8.2% to 9% on total average capital; and the
evidence offered by Bell in support of its
applications follows generally much the same
pattern and deals, inter alia, with the economic
outlook, the cost of capital, the company's capi
tal structure, its revenues and expenses, its con
struction program, depreciation, rate of return
and the company's revenue requirements. But
the facts, circumstances and conditions that
affect Bell's business are not static, and rates
that are just and reasonable in any given period
are not necessarily just and reasonable for a
later period when there are different facts, cir
cumstances and conditions. The reasonableness
of rates must be determined in relation to cir
cumstances and conditions, and Parliament has
given jurisdiction to the Commission to make
that determination; and in Amended Application
"B" Bell is asking for a determination of rates
to be effective in 1974 in the light of facts,
circumstances and conditions prevailing or
expected to prevail in that year.
Grounds (a), (b) and (c) in the petitioner's
originating notice therefore fail as grounds for a
writ of prohibition.
Grounds (d), (e) and (f) are that Bell brought
its Amended Application "B" too soon after the
Commission's decision of May 19, 1972, and
did not wait a reasonable time before filing it,
and therefore the Commission does not have
jurisdiction to hear it.
Section 320(2) of the Railway Act, R.S.C.
1970, c. R-2, as amended by c. 35 (1st Supp.)
reads as follows:
320. (2) Notwithstanding anything in any other Act, all
telegraph and telephone tolls to be charged by a company,
other than a toll for the transmission of a message intended
for general reception by the public and charged by a com
pany licensed under the Broadcasting Act, are subject to the
approval of the Commission, and may be revised by the
Commission from time to time.
Counsel for the petitioner submitted that by
reason of the words "from time to time" in that
subsection Bell was required to wait a reason
able period after the Commission's decision of
May 19, 1972, before filing another application
for revision of its rates and that it filed its
Application "B" and its Amended Application
"B" without waiting for a reasonable period.
Section 321 of the Railway Act applies to
Bell's rates. Subsections (1), (3), (4) and (5) read
as follows:
321. (1) All tolls shall be just and reasonable and shall
always, under substantially similar circumstances and condi
tions with respect to all traffic of the same description
carried over the same route, be charged equally to all
persons at the same rate.
(3) The Commission may determine, as questions of fact,
whether or not traffic is or has been carried under substan
tially similar circumstances and conditions, and whether
there has, in any case, been unjust discrimination, or undue
or unreasonable preference or advantage, or prejudice or
disadvantage, within the meaning of this section, or whether
in any case the company has or has not complied with the
provisions of this section or section 320.
(4) The Commission may
(a) suspend or postpone any tariff of tolls or any portion
thereof that in its opinion may be contrary to section 320
or this section; and
(b) disallow any tariff of tolls or any portion thereof that
it considers to be contrary to section 320 or this section
and require the company to substitute a tariff satisfactory
to the Commission in lieu thereof or prescribe other tolls
in lieu of any tolls so disallowed.
(5) In all other matters not expressly provided for in this
section the Commission may make orders with respect to all
matters relating to traffic, tolls and tariffs or any of them.
The foregoing provisions of the Railway Act
should be read along with provisions of the
National Transportation Act, R.S.C. 1970, c.
N-17, particularly the following:
5. (1) Except as otherwise expressly provided by this
Act, the provisions of Part IV relating to sittings of the
Commission and the disposal of business, witnesses and
evidence, practice and procedure, orders and decisions of
the Commission and review thereof and appeals therefrom
apply in the case of every inquiry, complaint, application or
other proceeding under this Act, the Railway Act, the
Aeronautics Act or the Transport Act or any other Act of
the Parliament of Canada imposing any duty or function on
the Cotnmission; and the Commission shall exercise and
enjoys the same jurisdiction and authority in matters under
any such Acts as are vested in the Commission under Part
IV of this Act.
(2) For greater certainty and the avoidance of doubt, but
without limiting the generality of subsection (1), it is
declared that the following provisions of Part IV of this Act,
namely sections 44 to 82 apply mutatis mutandis in respect
of any proceedings before the Commission pursuant to this
Act, the Railway Act, the Aeronautics Act or the Transport
Act, and in the event of any conflict between the provisions
of Part W and the provisions of the Railway Act, the
Aeronautics Act or the Transport Act the provisions of that
Part prevail.
45. (1) The Commission has full jurisdiction to inquire
into, hear and determine any application by or on behalf of
any party interested,
(6) requesting the Commission to make any order, or give
any direction, leave, sanction or approval, that by law it is
authorized to make or give, or with respect to any matter,
act or thing, that by the Railway Act, or the Special Act, is
prohibited, sanctioned or required to be done.
48. The Commission may, of its own motion, or shall,
upon the request of the Minister, inquire into, hear and
determine any matter or thing that, under the Railway Act, it
may inquire into, hear and determine upon application or
complaint, and with respect thereto has the same powers as,
upon any application or complaint, are vested in it by this
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.
58. Upon any application made to the Commission, the
Commission may make an order granting the whole or part
only of such application, or may grant such further or other
relief, in addition to or in substitution for that applied for, as
to the Commission may seem just and proper, as fully in all
respects as if such application had been for such partial,
other, or further relief.
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.
72. The Commission may, upon terms or otherwise, make
or allow any amendments in any proceedings before it.
Counsel for the petitioner submitted that the
words "from time to time" in section 320(2) of
the Railway Act necessarily imply that the Com
mission's jurisdiction to approve and revise tele
phone tolls is one that is to be exercised at
reasonable intervals of time, "according to the
rules of reason and justice" ' 2 , and that as Bell's
current application was initiated by its Applica
tion "B" only about 6 months after the Commis
sion's May 19, 1972, decision, a reasonable
period of time had not elapsed and therefore the
Commission has no jurisdiction to hear Bell's
current application.
The words "from time to time" (in respect of
adjournments of proceedings under the English
Bankruptcy Act) were considered in Re Von
Dembinska 13 , and Sir Raymond Evershed M.R.,
said that he interpreted them as meaning "as
and when it is appropriate so to do".
Section 49 of the National Transportation
Act provides that any authority of the Commis
sion may be exercised "from time to time, or at
any time, as the occasion may require".
There is no limitation of time, or specification
of any particular period of time, in those sec
tions 320(2) and 49. The Commission's jurisdic
tion in respect of Bell is mainly in relation to the
company's rate structure and the requirement
that its rates be just and reasonable and free
from unjust discrimination and undue prefer
ence. When the Commission, in the exercise of
its jurisdiction in that regard, approves or makes
general increases or revisions in the rates it
exercises a forward looking function, for it
12 Quoting Lord Halsbury's words in Sharp v. Wakefield
[1891] A.C. 173, 179, relating to the discretion of
magistrates.
13 [1954] 2 All E.R. (C.A.) 46, 48.
looks not only to the then present situation but
also beyond it in time, and it endeavours to
determine rates that will continue to be just and
reasonable for a reasonable period of time. The
propriety of so doing is generally accepted. But
circumstances and conditions are not static and
in the course of time, maybe long, maybe short,
there conceivably could be changes in the cir
cumstances and conditions affecting Bell that
would warrant a review of its rate structure and
possibly a revision of its tariffs of rates. In my
opinion, the Commission has jurisdiction, after
some time has gone by after having approved a
general revision of Bell's rates, to determine at
that later time whether the circumstances and
conditions and facts affecting Bell are then
actually or foreseeably such as to warrant fur
ther revisions of Bell's rates, either on Bell's
application or by the Commission of its own
motion. The situation now is that the Commis
sion has Bell's Amended Application "B"
before it, and I have no doubt that the Commis
sion has jurisdiction to determine whether, at
the present time and for the reasonably foresee
able future, additional increases or changes in
Bell's rates are warranted, and that it has juris
diction to hear and determine Bell's Amended
Application "B". The prospective hearings by
the Telecommunication Committee, which the
petitioner asks this Court to prohibit, are a part
of the proceedings designed to enable the Com
mittee to make an appropriate determination of
the application.
As to the Commission's jurisdiction it may be
useful to refer to a judgment of the Supreme
Court of Canada in Canadian Pacific Railway v.
The Province of Alberta 14 in respect of section
33(1)(b) of the Railway Act as it was prior to
the enactment of the National Transportation
Act, as its wording (except for the change in the
tribunal) is the same as the wording of section
45(1)(b) of the National Transportation Act.
The judgment is in respect of a decision of the
Board of Transport Commissioners for Canada
(which then had jurisdiction over railway freight
rates and also over Bell's telephone rates) post
poning its determination of an application of the
14 [1950] S.C.R. 25.
railways for increases in freight rates. The
Board gave a judgment on March 30, 1948,
authorizing a general increase in freight rates.
Within 4 months, on July 27, 1948, the railways,
having in the meantime been called upon to pay
higher wages to their employees, filed with the
Board an application for a further general
increase in the then existing freight rates. Mean
time, on April 7, 1948, the Governor in Council
passed P.C. 1487, directing the Board to under
take a general freight rates investigation. Mean
while, also, the Provinces, in September 1948
had launched an appeal to the Governor in
Council from the Board's judgment of March
30, 1948. The appeal was disposed of by P.C.
4678 of October 12, 1948, by which the Board
was directed to consider the complaints which
were the subject-matter of the appeal, concur
rently with the application of the railways. Fur
ther, while the application of the railways was
still pending before the Board, a Royal Commis
sion was appointed to inquire into railway trans
portation matters. The Board proceeded to hear
the pending application of the railways and on
September 20, 1949, granted an interim increase
in freight rates, but postponed making a final
determination of the application. The judgment
of the Supreme Court deals with the Board's
reasons for such postponement, which are not
particularly relevant to the application now
before this Court, but the judgment is pertinent
because the case concerned an application of
the railways for additional increases in freight
rates filed within 4 months after the Board had
awarded general increases, and because the
Supreme Court said in respect of section
33(1)(b), at pages 31-32:
The Board of Transport Commissioners is not only an
administrative body but a court of record and it has, in
addition to any other power or authority, "full jurisdiction to
inquire into, hear and determine any application by or on
behalf of any party interested,
(b) requesting the Board to make any order, or give any
direction, leave, sanction, or approval, which by law it is
authorized to make or give, or with respect to any matter,
act or thing, which by this Act, or the Special Act, is
prohibited, sanctioned or required to be done. Sec.
33(1)(b)."
This jurisdiction the Board is bound to exercise.
.In my opinion no lack of jurisdiction in the
Commission or its Telecommunication Commit
tee to hear Bell's Amended Application "B" or
to continue its proceedings thereon has been
shown. I find there is such jurisdiction. There
fore the petitioner's application for a writ of
prohibition fails and will be dismissed.
In view of my decision on the principal issue
argued I do not find it necessary to decide
whether the relief sought by the petitioner
herein is or is not within the jurisdiction of the
Trial Division to grant, having regard to the
provisions in section 64 of the National Trans
portation Act providing for appeals from the
Commission, and the privative provisions of
sections 28(3) and 29 of the Federal Court Act.
However, I will say that I do not regard this
application as an appeal from a decision of the
Commission or its Telecommunication Commit
tee, but rather as an application for a writ of
prohibition based on the ground of lack of
jurisdiction.
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.