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A-10-74
The Center for Public Interest Law (Petitioner) v.
The Canadian Transport Commission (Respond- ent)
and
Bell Canada (Mise en cause)
Court of Appeal, Urie, Addy and Decary JJ.— Montreal, February 22, 1974.
Judicial review—Refusal of Telecommunication Commit tee to stay proceedings for determination of a question of law—Whether "decision" subject to review—Canadian Transport Commission General Rule 510, Federal Court Act, s. 28.
The Telecommunication Committee of the Canadian Transport Commission in its discretion under Rule 510 of the Canadian Transport Commission General Rules refused a motion to stay proceedings to determine a question of law before the commencement of the hearing of an amended application made by Bell Canada for increases in its rates and tariffs. An application to quash a section 28 application for review of that refusal was allowed on the ground that this Court has no jurisdiction under section 28(1) to set aside that ruling. "The object of section 28 is more effec tively achieved by leaving the right to invoke judicial review to the stage after the tribunal has rendered its decision."
In re Anti-dumping Act and in re Danmor Shoe Co. Ltd. [1974] F.C. 22, followed.
APPLICATION to quash section 28 application. COUNSEL:
Ronald I. Cohen and Pamela Sigurdson for petitioner.
W. G. St. John for respondent.
E. Saunders, Q.C., and R. O'Brien, Q.C., for mise en cause.
SOLICITORS:
Sigurdson and Cohen, Montreal, for petitioner.
The Canadian Transport Commission, Ottawa, for respondent.
G. Houle, Montreal, for mise en cause.
URIE J. (orally)—This is an application by the mise en cause, Bell Canada, to quash an applica tion by the Center for Public Interest Law made pursuant to section 28 of the Federal Court Act, to review and set aside a decision of the Tele communication Committee of the Canadian Transport Commission dated December 21, 1973, arising out of a motion made pursuant to Rule 510 of the Canadian Transport Commis sion General Rules to decide, as a preliminary matter of law, before the commencement of the hearing of Amended Application B made by Bell Canada for increases in its rates and tariffs that the said application B was, in fact, an appeal from a previous decision of the Commit tee and not a new application.
In my view the reasoning of Jackett C.J. in his reasons for judgment in this Court in In re Anti-dumping Act and in re Danmor Shoe Co. Ltd. [1974] F.C. 22 rendered on January 24, 1974, is applicable in this case. The gist of that decision is that a tribunal such as the Telecom munication Committee of the Canadian Trans port Commission has a principal jurisdiction to make decisions or orders, and, as part of the process leading to the making of such decisions or orders, it has jurisdiction to conduct hearings as required by law and to make rulings inciden tal to the conduct of such hearings "that may, after the matter has been decided, be a basis for setting aside the ultimate "decision" on the ground that, by virtue of such rulings the tri bunal, in making the decision attached failed to observe a principle of natural justice."
It is useful in rendering judgment on these applications, we think, to repeat Jackett C.J.'s analysis of the objects of section 28 of the Federal Court Act as set forth in the Appendix to his reasons for judgment in In re Anti-dump ing Act and in re Danmor Shoe Co. Ltd. [1974] F.C. 22 and in particular the following passage found at pages 34 and 35 thereof:
In my view, the object of sections 18 and 28 of the Federal Court Act is to provide a speedy and effective judicial supervision of the work of federal boards, commissions and other tribunals with a minimum of interference with the
work of those tribunals. Applying section 11 of the Interpre tation Act, with that object in mind, to the question raised by these section 28 applications, it must be recognized that the lack of a right to have the Court review the position taken by a tribunal as to its jurisdiction or as to some procedural matter, at an early stage in a hearing, may well result, in some cases, in expensive hearings being abortive. On the other hand, a right, vested in a party who is reluctant to have the tribunal finish its job, to have the Court review separately each position taken, or ruling made, by a tribunal in the course of a long hearing would, in effect, be a right vested in such a party to frustrate the work of the tribunal. On balance, it would seem that the object of section 28 is more effectively achieved by leaving the right to invoke judicial review to the stage after the tribunal has rendered its decision. There will then have been no unnecessary delay in cases where the tribunal has been guilty of no error in its intermediate positions and rulings and, even when the tri bunal has erred at an intermediate stage, in the vast majority of cases, such errors will not have affected the ultimate result in such a way as to warrant invoking judicial review. Admitting that there may be problems that should be solved judicially at an intermediate stage, surely no party should have the right to decide whether a situation has arisen in which that should be done. It is not without interest, in this connection, that Parliament has given the tribunal the neces sary discretion to deal with such problems.
On the basis of all of the foregoing, therefore, I am of the opinion that the application of the mise en cause, Bell Canada, to quash the section 28 application should be granted on the ground that this Court has no jurisdiction under section 28(1) to set aside the ruling referred to in it.
* * *
ADDY J. concurred.
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DECARY J.—I concur with the result pertain ing to the application made under the provisions of section 28 of the Federal Court Act and a motion to quash that application under section 52(a) of the Federal Court Act because this application is premature up to the time the Canadian Transportation Commission shall have rendered its decision on the rates and tariffs applied for by Bell Canada. My remarks are no reflection on the merits of the application.
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