A-189-74
In re Daigle and in re Canadian Transport
Commission
Court of Appeal, Jackett C.J., Pratte J. and Hyde
D.J.—Montreal, March 4 and 5, 1975.
Judicial review—Railway accident—Inquiry by Canadian
Transport Commission—Report finding applicant negligent—
Validity of CTC order prohibiting applicant from controlling
movement of trains—Failure to meet requirements of natural
justice—Not an order which CTC empowered to make—
Railway Act, R.S.C. 1970, c. R-2, s. 226(1) and (2)—Federal
Court Act, s. 28.
The applicant, an employee of the Canadian National Rail
way Company, brought an application, under section 28 of the
Federal Court Act, to review an order made by the Canadian
Transport Commission following a railway accident, which
order barred him from controlling the movement of trains.
Held, the order was irregularly made and should be set aside.
The CTC failed to comply with the audi alteram partem rule,
in that it did not inform the applicant of the charges against
him, and possible consequences, not did it give him a reason
able opportunity to answer the charges. Moreover, the CTC
was not acting within the scope of its authority under section
226 of the Railway Act when it ordered Mr. Daigle barred
from performing a certain type of work. Under the section, the
CTC could only "order the Company to suspend or dismiss"
the applicant.
APPLICATION for judicial review.
COUNSEL:
L. Racicot for applicant.
M. W. Wright, Q.C., for the Canadian Rail
way Labour Association.
D. J. Murphy for the Canadian Transport
Commission.
SOLICITORS:
Racicot, Guertin & Roy, Montreal, for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for the Canadian
Railway Labour Association.
Canadian Transport Commission, Ottawa,
for the Canadian Transport Commission.
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: Mr. Daigle is an employee of the
Canadian National Railway Company. He chal
lenges the validity of an order, made by the
Canadian Transport Commission following a rail
way accident, which order barred him from con
trolling the movement of trains.
On December 9, 1972, two trains collided at
St-Germain, in the Province of Quebec. On April
16, 1973, the Canadian Transport Commission
appointed one of its members, Mr. Louis R.
Talbot, to conduct an inquiry into the causes of
that accident. That appointment was made under
the authority of section 226 of the Railway Act, a
provision reading as follows:
226. (1) The Commission may appoint such person or per
sons as it thinks fit to inquire into all matters and things that it
deems likely to cause or prevent accidents, and the causes of
and the circumstances connected with any accident or casualty
to life or property occurring on any railway, and into all
particulars relating thereto.
(2) The person or persons so appointed shall report fully in
writing, to the Commission, his or their doings and opinions on
the matters respecting that he or they are appointed to inquire,
and the Commission may act upon such report and may order
the company to suspend or dismiss any employee of the com
pany whom it may deem to have been negligent or wilful in
respect of any such accident.
On October 25, 1973, after a long inquiry at
which many witnesses were heard, Mr. Talbot
submitted to the Commission a report of his find
ings and opinions. In that lengthy report, more
than 50 pages long, Mr. Talbot expressed the view
that Mr. Daigle had, by his negligence, contribut
ed to the accident and should, for that reason, have
been dismissed by his employer.
The Commission did not act upon that report
until July 10, 1974. It then made the order which
is now under attack, the operative part of which
reads as follows:
THE COMMITTEE HEREBY ORDERS that Joseph A. Daigle be and
he is hereby barred from controlling the movement of trains
including, but so as not to restrict the generality of the forego
ing, the use of train orders or other signal equipment or
dispatching device of any type whatsoever used in connection
with the movement of trains.
In our view, that order was irregularly made
first because the Commission failed to meet the
requirements of natural justice and, second,
because that order is not an order that the Com
mission is empowered to make under the statute.
It is common ground that at no time during the
inquiry was Mr. Daigle informed of the possibility
that the Commission might, as a consequence of
the inquiry, decide that sanction should be
imposed on him. Much less was he given the
opportunity of answering any allegation made
against him. In those circumstances, before acting
upon Mr. Talbot's report, it is our opinion that the
Commission had the duty
(1) to inform Mr. Daigle of the charges made
against him and of their possible consequences,
and
(2) to give Mr. Daigle a reasonable opportunity
to answer those charges.
In our view, the failure of the Commission to
comply with those requirements of the audi
alteram partem rule renders its decision voidable
ab initio.
Moreover, we are of the opinion that the Com
mission did not, under section 226 of the Railway
Act, have the power to make an order such as the
one it made. By that order, the Commission pro
hibited Mr. Daigle from performing a certain type
of work. Section 226 of the Railway Act does not
empower the Commission to impose such a prohi
bition but merely to "order the company to sus
pend or dismiss" an employee.
For these reasons, we are of the opinion that the
order under attack is invalid and should be set
aside by the Commission.
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.