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T-1611-79
Consumers' Association of Canada (Applicant) v.
Canadian Transport Commission, Air Canada, CP Air, Pacific Western Airlines, Transair Ltd., Nor- dair Ltd., Quebecair Ltd. and Eastern Provincial Airways (Respondents)
Trial Division, Mahoney J.—Ottawa, March 29 and April 2, 1979.
Prerogative writs — Prohibition and certiorari — Applicant, intervening in hearing to consider general air fare increases, denied two week adjournment by Canadian Transport Com mission — Adjournment requested to permit analysis of docu ments produced by Airlines — Scope of hearings expanded to consider two Airlines' proposed discount fares with notice only given to participants in hearing considering general fare increase — Whether or not prohibition should be granted to prevent hearings continuing and whether or not certiorari should be granted quashing the decision to deny the adjourn ment — Federal Court Act, R.S.C. 1970 (2nd Supp.). c. 10, s. 18.
The applicant seeks an order or orders under section 18 of the Federal Court Act for a writ of prohibition prohibiting the Canadian Transport Commission from proceeding with a hear ing presently before it and for a writ of certiorari quashing its decision denying applicant's request for a two week adjourn ment. The hearing was to consider the Airlines' filing of tariffs proposing a fare increase, which in the absence of action by the Commission prior to January 1, 1979, would come into effect automatically. The scope of the hearing was later extended to consider two Airlines' proposals for fare discounts. In this proceeding, applicant's principal ground for seeking an adjournment was the necessity of a reasonable time to permit analysis of material provided it by the Airlines and to permit applicant to prepare both its cross-examination of their wit nesses and its own preparation. The second ground, which was not considered by the Board in its decision to deny the adjourn ment, was the inadequacy of the notice of the extended scope of the hearing.
Held, the application is dismissed. The Commission correctly identified the first ground as the applicant's principal ground for seeking adjournment, and giving due consideration to the competing interests before it, exercised its discretion entirely properly. It decided to proceed with the Airlines' evidence and cross-examinations by the interveners leaving open the opportu nity of an adjournment at a later stage should that procedure or the additional material demonstrate its need. The refusal to adjourn is not on that ground "tainted with unfairness or denial of natural justice". Although the Commission is not required by law to hold a public hearing in respect of tariff filings as these, it is authorized by law to do so. In the absence of statutory authority to the contrary, there is no basis for con-
cluding that, since it is decided to hold such a hearing, the same criteria do not apply as to the one that was required to be held. The applicant does not oppose the discounts. The Commission knew that and, in the circumstance, it cannot be said that a refusal to adjourn the hearing on the second ground was tainted with unfairness or denial of natural justice to the applicant.
APPLICATION. COUNSEL:
Brian A. Crane, Q.C. and H. G. Intven for
applicant.
G. W. Nadeau and Gregory Tardi for Canadi-
an Transport Commission.
Marshal Rothstein and Guy Delisle for Air
Canada.
John B. Hamilton, Q.C. for CP Air.
J. C. Major, Q.C. for Pacific Western Air
lines and Transair Ltd.
Brian G. Armstrong for Nordair Ltd.
J. E. Martin for Quebecair Ltd.
R. G. Belfoi, Q.C. and J. H. Smellie for
Eastern Provincial Airways.
SOLICITORS:
Gowling & Henderson, Ottawa, for applicant.
Canadian Transport Commission, Hull, for
itself.
Air Canada, Montreal, for itself.
Hamilton, Torrance, Stinson, Campbell,
Nobbs & Woods, Toronto, for CP Air.
Jones, Black & Company, Calgary, for Pacif
ic Western Airlines and Transair Ltd.
Perry, Farley & Onyschuk, Toronto, for Nor-
dair Ltd.
Quebecair Ltd., Montreal, for itself.
Herridge, Tolmie, Ottawa, for Eastern Pro vincial Airways.
The following are the reasons for order ren dered in English by
MAHONEY J.: The applicant seeks an order or orders under section 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, for a writ of prohibition prohibiting the respondent, Canadian Transport Commission (hereinafter "the Commis-
sion"), from proceeding with a hearing presently before it and for a writ of certiorari quashing its decision of March 27, 1979, denying the appli cant's request of a two week adjournment. It also sought, and the respondents agreed to, an order abridging the time for return of the motion. While I will refer to the Commission throughout these reasons, what was done was by its Air Transport Committee performing the Commission's func tions.
The respondents, other than the Commission, (hereinafter "the Airlines"), had filed tariffs with the Commission which would, in the absence of action by the Commission prior to January 1, 1979, have come into effect automatically. Those filings involved a proposed general domestic fare increase of approximately 5% (hereinafter "the general increase"). The Commission suspended the filings until April 1, 1979, and directed the Air lines to file up-dated supporting financial informa tion by March 15. The Commission then decided to hold public hearings on the general increase and, on February 22, published a notice of a public hearing to commence March 26 (hereinafter "the general increase hearing").
On March 12, the applicant filed an interven tion statement with the Commission in respect of the general increase hearing and served, on the Commission and Airlines, an application for pro duction and inspection of documents with attached interrogatories which went well beyond what the Airlines had already filed, or proposed to file, in support of the general increase, with the Commis sion. The applicant also filed, on March 12, an application for the adjournment of the general increase hearing to permit it to receive the request ed material and to prepare for cross-examination of the Airlines' witnesses as well as its own case for the hearing. The material which the Airlines filed in support of the general increase was, in due course, made available to the applicant.
On or about March 13, the Commission decided to extend the scope of the public hearing to embrace certain additional tariff filings recently made by the Airlines, other than Nordair, Quebec- air and Eastern Provincial Airways. These filings involved the "seat sale" or "deep discount" fares proposed by Air Canada for the current spring and CP Air's matching fares as well as certain other proposed discount fares (hereinafter collectively "the discounts"). An amended notice of public hearing was issued March 14 whereby the dis counts were added to the general increase as the subject matter of the general increase hearing. That amended notice appears not to have been published other than privately to those already involved in the general increase hearing. (There are interveners other than the applicant who are not party to these proceedings.) The applicant's first intimation of the extended scope of the gener al increase hearing was as a result of a reference to it in the telex of March 20 whereby the Commis sion communicated its refusal of the applicant's March 12 adjournment application. The amended notice itself, mailed by the Commission on March 14, was delivered to the applicant on March 21.
The March 20 telex also directed the applicant and Airlines to deal directly in so far as the additional documents and the interrogatories were concerned, deferring any order the Commission might make until representations could be made at the opening of the general increase hearing. In the result, Air Canada was the only Airline to supply that material prior to the hearing. It did so on March 25. CP Air tried to do so but was unable to get together with the applicant. In supplying its material, Air Canada did not admit its relevance to the general increase hearing.
The hearing began March 26 and the greater part of the day was taken up by the applicant's application for production and a new motion for adjournment. The day ended with the Commission ordering the Airlines to produce to each other, and other interveners not party to this proceeding, and
to the Commission all documents they were pre pared to produce to the applicant. By the time the hearing resumed, at 1:00 p.m. March 27, some additional material had been delivered and more was then delivered by the Airlines, other than Air Canada. Again, its relevance was not admitted.
The motion for adjournment, and the reasons advanced therefor, occupy the transcript of the March 26 hearing from page 6, line 29, to page 37, line 9. Of the various grounds then advanced, two are relied on in this proceeding: (1) the necessity of a reasonable time to permit analysis of the material provided by Air Canada March 25 and the other Airlines later to permit the applicant to prepare both its cross-examination of their wit nesses and its own presentation, and (2) the inadequacy of notice of the extended scope of the hearing. The decision refusing the motion to adjourn, and the reasons therefor, occupy the March 27 transcript from page 151, line 8, to page 156, line 8. It is unnecessary to recite the decision and reasons here. Suffice it to say, the Commission did not, in its reasons, mention the second ground.
Correctly identifying the first of the above grounds as the applicant's principal ground for seeking an adjournment, and giving due consider ation to the competing interests before it, the Commission exercised its discretion entirely prop erly. It decided to proceed with the Airlines' evi dence and cross-examination by the interveners leaving open the opportunity of an adjournment at a later stage should that procedure or the addition al material demonstrate its need. The refusal to adjourn is not, on that ground "tainted with unfairness or denial of natural justice", to adopt the language of my brother Collier.' Short of that, the Court will not interfere with the decision of a tribunal to refuse a motion to adjourn proceedings properly before it.
1 Union of British Columbia Indian Chiefs v. West Coast Transmission Co. Ltd. Court No. T-4347-77. Unreported deci sion rendered December 7, 1977.
The second ground is quite another matter. The Commission is not required by law to hold a public hearing in respect of tariff filings such as these; it is, however, authorized by law to do so. In the absence of statutory provisions to the contrary, I see no basis for concluding that, once it is decided to hold such a hearing, the same criteria do not apply as to one that was required to be held. Those criteria were spelled out by the Chief Justice in delivering the judgment of the Federal Court of Appeal in In re Canadian Radio-Television Com mission and in re London Cable TV Limited. 2
In my view, at the very minimum, what the statute required, by requiring a "public hearing", was a hearing at which, subject to the procedural rules of the Commission and the inherent juris diction of the Commission to control its own proceedings, every member of the public would have a status "to bring before" the Commission anything relevant to the subject matter of the hearing so as to ensure that, to the extent possible, everything that might appropriately be taken into consideration would be before the Commission, or its Executive Committee, when the application for the amendment was dealt with. To be such a public hearing, it would, in my view, have had to be arranged in such a way as to provide members of the public with a reasonable opportunity to know the subject matter of the hearing, and what it involved from the point of view of the public, in sufficient time to decide whether or not to exercise their statutory right of presentation and to prepare themselves for the task of presentation if they decided to make a presenta tion. In other words, what the statute contemplates, in my view, is a meaningful hearing that would be calculated to aid the Commission, or its Executive Committee, to reach a conclusion that reflects a consideration of the public interest as well as a consideration of the private interest of the licensee; it does not contemplate a public meeting at which members of the public are merely given an opportunity to "blow off steam".
The discounts have no apparent direct connec tion with the general increase other, perhaps, than a relationship of convenience: the Commission was holding a public hearing anyway and some, at least, of those interested in the general increase were also interested in the discounts. For whatever reason, it may have appeared necessary, desirable or expedient to hold a public hearing with respect to the discounts. It may be questioned, in view of the manner of publication of the amended notice, that the "public" has been notified at all of that public hearing.
2 [1976] 2 F.C. 621 at 624 ff.
Neither the decision to extend the scope of the general increase hearing nor the decision to limit publication of the amended notice are challenged here. The decision in issue is the refusal to adjourn.
The pertinent statutory provision is section 69 of the National Transportation Act. 3
69. Unless otherwise provided, fifteen days notice of any application to the Commission, or of any hearing by the Commission, is sufficient, but the Commission may in any case direct longer notice or allow notice for any period less than fifteen days.
The applicant had, at most, six and, at least, five days' notice. The Commission had the authority to abridge the notice period to that extent.
The applicant does not oppose the discounts. The Commission knew that and, in that circum stance, it cannot be said that a refusal to adjourn the hearing on the second ground was tainted with unfairness or denial of natural justice to the appli cant. The applicant cannot appropriate to itself the unfairness or denial of natural justice that might be found, in the process adopted, to be a sufficient cause for the Court to interfere at the behest of others of the "public".
The application has already been dismissed in so far as it relates to the subject matter of the original notice of hearing published February 22, 1979. I did that because I considered that subject matter severable from the subject matter of the amended notice dated March 14. In the result, I make no finding on that point.
ORDER
The application is dismissed without costs.
3 R.S.C. 1970, c. N-17.
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