T-2153-86
Canadian National Railway Company (Applicant)
v.
Canadian Transport Commission (Respondent)
T-2154-86
Canadian Pacific Limited (Applicant)
v.
Canadian Transport Commission (Respondent)
INDEXED AS: CANADIAN NATIONAL RAILWAY CO. v. CANADIAN
TRANSPORT COMMISSION
Trial Division, McNair J.—Winnipeg, June 24;
Ottawa, July 14, 1987.
Federal Court jurisdiction — Trial Division — Applications
for prohibition to prevent Canadian Transport Commission
from considering application for relocation of railway facili
ties — Upon filing of application for second phase of reloca
tion, Commission writing to parties stating satisfied no out
standing statutory conditions precedent and therefore
application considered received — Applications dismissed —
In determining application considered received, Commission
formulating opinion as to statutory authorization to receive
plan — Decision dealing with question of law or jurisdiction
from which legal consequences flow — Appealable to Federal
Court of Appeal under National Transportation Act, s. 64(2)
— Federal Court Act, s. 29 precluding Trial Division's s. 18
jurisdiction — Form of ruling (letter) immaterial — Consent
of parties not giving Court jurisdiction denied by statute.
These were applications for prohibition to prevent the
Canadian Transport Commission from considering the applica
tion by the city of Regina for the relocation of certain railway
facilities. Upon receipt of the City's application for the second
phase of the relocation, the Commission wrote to the parties,
indicating that no statutory conditions precedent were out
standing and therefore the application was considered received.
Although the parties agreed that the Court had jurisdiction to
entertain the application for prohibition and should proceed to
determine the merits of the controversy, the Court had misgiv
ings about that and considered, as a preliminary issue, whether
the Commission's letter constituted a "decision" or "interlocu-
tory ruling," raising a question of law or jurisdiction, appeal-
able to the Federal Court of Appeal under subsection 64(2) of
the National Transportation Act. According to Canadian Na
tional Railway Co. v. Canadian Transport Commission,[19861
3 F.C. 548 (C.A.), section 29 of the Federal Court Act would
then deprive the Trial Division of section 18 jurisdiction. The
applicants argued that the Commission's decision was not
appealable as it was not a decision on the merits but merely
acknowledged receipt of the application. In seeking prohibition,
they argued that the Commission lacked jurisdiction to hear the
application because the City had filed two plans for the same
transportation study area, contrary to the provisions of the
Railway Relocation and Crossing Act, and that the division of
the relocation project into two phases constituted a denial of
natural justice. The respondent argued that a broad and
remedial interpretation of the statute did not preclude making
the relocation applications in stages.
Held, the motions should be dismissed.
The Court lacked jurisdiction to deal with the merits of the
issue of whether prohibition should lie. The Commission's letter
stated that the Phase II relocation application was considered
to have been received within the meaning of Part I of the
Railway Relocation and Crossing Act. In making this determi
nation, the Commission satisfied itself that the accepted plan
materially affected only those municipalities located wholly or
in part within the transportation study area to which the
accepted plan related, and that there were no statutory condi
tions precedent left outstanding in respect of the application.
Clearly, the Commission formulated an opinion regarding its
statutory authorization to receive the relocation plan. This was
a decision or order on a question of law or of jurisdiction from
which legal consequences would inevitably flow, notwithstand
ing that nothing further was ordered or required to be done at
that particular stage. It was immaterial that the ruling was
issued and communicated in letter form. The question of law or
of jurisdiction dealt with was appealable to the Federal Court
of Appeal under subsection 64(2) of the National Transporta
tion Act. The Trial Division was therefore precluded by section
29 of the Federal Court Act from granting prohibition.
The parties could not confer jurisdiction on the Court by
consent, it being denied by statute. Total absence of jurisdiction
was to be distinguished from a procedural irregularity, which
may be waived by agreement. Where a court pronounces
judgment in a matter over which it has no jurisdiction, the
judgment amounts to nothing.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
ss. 18, 29.
Interpretation Act, R.S.C. 1970, c. 1-23, s. 11.
National Transportation Act, R.S.C. 1970, c. N-17,
ss. 46, 57, 64(2) (as am. by R.S.C. 1970 (2nd Supp.),
c. 10, s. 65).
Railway Act, R.S.C. 1970, c. R-2, s. 331.
Railway Relocation and Crossing Act, S.C. 1974, c. 12,
ss. 3(1),(2),(5),(6), 5 ( 1 ),( 2 ).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Canadian National Railway Co. v. Canadian Transport
Commission, [1986] 3 F.C. 548 (C.A.).
APPLIED:
Canadian National Railway Co. v. Canadian Transport
Commission, [1982] 1 F.C. 458 (C.A.); Essex Incorpo
rated Congregational Church Union v. Essex County
Council, [1963] A.C. 808 (H.L.); Dominion Canners Ltd.
v. Costanza, [1923] S.C.R. 46; [1923] 1 D.L.R. 551.
REFERRED TO:
Farquharson v. Morgan, [1894] 1 Q.B. 552 (C.A.);
Township of Cornwall v. Ottawa and New York Railway
Co. et al. (1916), 52 S.C.R. 466; 30 D.L.R. 664; Canadi-
an Pacific Railway Co. v. Fleming (1893), 22 S.C.R. 33;
Mulvey vs The Barge Neosho (1919), 19 Ex.C.R. 1;
Harris Abattoir Co. Ltd. v. SS. Aledo & Owners, [1923]
Ex.C.R. 217.
AUTHORS CITED
De Smith's Judicial Review of Administrative Action,
4th ed., J. M. Evans, London: Stevens & Sons Limited,
1980.
COUNSEL:
Grant H. Nerbas and Terence Hall for appli
cant Canadian National Railway Company.
Winston Smith and Allan Ludkiewicz for
applicant Canadian Pacific Limited.
Marshall Rothstein, Q.C. and Marc M.
Monnin for city of Regina.
Peter Noonan for respondent Canadian
Transport Commission.
SOLICITORS:
Canadian National, Winnipeg, for applicant
Canadian National Railway Company.
Canadian Pacific Limited, Winnipeg, for
applicant Canadian Pacific Limited.
Aikins, MacAulay & Thorvaldson, Win-
nipeg, for city of Regina.
Canadian Transport Commission, Saskatoon,
for respondent Canadian Transport Commis
sion.
The following are the reasons for order ren
dered in English by
MCNAIR J.: The case involves applications
made by Canadian National Railway Company
and Canadian Pacific Limited under section 18 of
the Federal Court Act [R.S.C. 1970 (2nd Supp.),
c. 10] for a writ of prohibition or relief in the
nature thereof prohibiting the Canadian Transport
Commission from considering the application of
the city of Regina for the relocation of certain
facilities owned and operated by CN, CP and VIA
Rail Canada Inc., pursuant to the Railway Relo
cation and Crossing Act, S.C. 1974, c. 12 (the
"Act"). It was agreed that the two applications
should be heard together and treated as one, based
on common evidence. The grounds for relief are
identically stated in the motions as follows:
(1) The Canadian Transport Commission is without jurisdic
tion in this matter as the Application of the City of Regina does
not comply with subsection 3(1) of the Railway Relocation and
Crossing Act.
(2) The Canadian Transport Commission is without jurisdic
tion in this matter in that without compliance with subsection
3(1) of the Railway Relocation and Crossing Act the Canadian
Transport Commission will not be able to make a determina
tion under subsection 5(1) thereof.
In 1970 the city of Regina established a Regina
Railway Relocation Programme. The purpose was
to relocate all the railway yards and subdivisions
currently within the boundaries of the City. Be
tween 1974 and 1980 a number of segments of
railway lines were relocated in Regina by mutual
agreement between the City and the railways.
On March 30, 1984 the City filed an application
under the Act with the Canadian Transport Com
mission for the relocation of CN's yard and re
maining subdivisions and one CP subdivision. The
Government of Canada had committed funds to
the Phase I relocation under subsection 3(5) of the
Act. This application became known as Phase I of
the City's Global Railway Relocation Programme.
The railways took steps to prevent the Commission
from dealing with the Phase I application, none of
which have been successful to date.
On July 29, 1985 the City filed an application
with the Commission for the relocation of CP's
yard and main line and a part of CN's Central
Butte Subdivision. The application also involved
certain VIA Rail facilities. This application can be
conveniently referred to as Phase II of the City's
Global Railway Relocation Program. The Govern
ment of Canada has committed no funds to the
Phase II relocation.
On August 21, 1985 the Commission wrote a
letter to the parties, stating in part as follows:
The Commission has now had an opportunity to examine the
Phase II relocation application filed by the City of Regina.
After examining the application and plans the Commission is
satisfied that:
(a) the accepted plan materially affects only those municipali
ties located wholly or in part within the transportation
study area to which the accepted plan relates,
(b) The Urban Development Plan does not contemplate the
use of federal programs,
(c) The Transportation Plan and Financial Plan do not con
template the allocation of monies from the monies appro
priated by Parliament for the purposes of making reloca
tion grants under Part I of the Railway Relocation and
Crossing Act.
Accordingly, the Commission is satisfied that no statutory
conditions precedent are outstanding in respect of the Phase II
application and therefore the Phase II application is considered
to be received within the meaning of Part I of the R.R.C.A. as
of this date. The reception of this application by the Commis
sion commences the time period for the filing of Answers
pursuant to the provisions of the Canadian Transport Commis
sion General Rules.
The purpose of the present motions is to prohibit
the Commission from proceeding with the con
sideration of the Phase II application for railway
relocation in Regina. Leaving aside any prelim
inary question of jurisdiction, the issue is whether
the application sufficiently complies with subsec
tion 3(1) of the Act to enable the Commision to
make the required determination under subsection
5(1) thereof.
Before dealing with the jurisdictional question, I
feel that I should summarize briefly the main
points of argument for and against the granting of
prohibition.
The principal submission of the applicants is
that subsection 3(1) of the Railway Relocation
and Crossing Act envisages one urban develop
ment plan and one transportation plan for one
transportation study area. Here, the city of Regina
has submitted two urban development plans and
two transportation plans in respect of the same
transportation study area for which there is no
authority under the Act. Consequently, the Com
mission is without jurisdiction to hear the Phase II
application. This is abundantly apparent from the
fact that all references in the Act to the filing of
requisite plans are contextually limited to the sin
gular rather than the plural. The applicants stress
that there is no authority in the Act that would
permit the phasing of an entire relocation project
with respect to an adjudication on the merits,
having regard to the "cost-benefit equilibrium
test" mandated by subsection 5(1) of the Act.
The applicants also submit that the division of
the entire relocation project into two phases, even
assuming such a procedure were permitted by the
Act, represents a denial of natural justice by
depriving the applicants of the opportunity to
examine the total relocation project as a whole in
making out their case in answer thereto. Instead,
the railways are forced into the inimical position of
having to contest a fragmented application on a
piecemeal basis.
The case for the respondent was argued in main
by counsel for the city of Regina. Counsel for the
Canadian Transport Commission played a rela
tively passive role in a watching brief capacity.
Counsel for the City agrees that the issue is wheth
er the application filed by the city of Regina
complies with subsection 3(1) of the Railway
Relocation and Crossing Act. He supports the
position of opposing counsel that the Court has
jurisdiction to grant prohibition in a proper case.
The respondent sees the question at issue as
being primarily one of statutory interpretation and
he invokes both the remedial, liberal rule pre
scribed by section 11 of the Interpretation Act
[R.S.C. 1970, c. I-23] and the modern principle
for the interpretation of statutes formulated by
Driedger and approved by the Supreme Court of
Canada. The application of these rules of statutory
interpretation negates the applicants' argument for
a strict construction of the Act because of its
alleged expropriatory nature.
The respondent's argument in a nutshell is that
a broad and remedial interpretation of the relevant
statutory provisions does not preclude the making
of applications for railway relocation in stages. To
suggest otherwise leads to the untenable conclu
sion that a municipality has only one opportunity
to make an application under the Act. Such an
unreasonable interpretation would prevent a mu
nicipality from implementing any long-term objec
tive of railway relocation in an orderly fashion
depending on the availability of financial resources
or other relevant considerations, and is totally
unsupported by the words of the Act. The respond
ent submits that the applicable statutory provisions
of the Act have been met in the present case. The
Phase II application is completely self-contained
and the required urban development plan, trans
portation plan and financial plan have been filed in
support thereof and duly received by the
Commission.
Nothing in the Act precludes a further applica
tion to relocate railway lines that were unaffected
by the initial Phase I application. The respondent
makes the further point that the actual determina
tion of the cost-benefit equilibrium referred to in
paragraph 5(1)(a) will only take place after the
mandatory public hearing prescribed by subsection
5(2). In making such determination, the Commis
sion is not restricted to information contained in
the plans as filed.
In response to the denial of natural justice argu
ment, the respondent contends that the railways
will be entitled to adequately state their case on
the whole question of relocation in its entirety. The
respondent points out that in the Phase I applica
tion Canadian Pacific filed evidence pertaining to
Phase II.
Subsections 3(1), 3(2) and 3(6) of the Railway
Relocation and Crossing Act, read as follows:
3. (1) Where, in respect of an area in a province that includes
or comprises an urban area (hereinafter in this Part called a
"transportation study area"), the government of the province
and all the municipalities within that area have agreed upon an
urban development plan and transportation plan (hereinafter in
this Part called an "accepted plan") for that transportation
study area, the province or a municipality may, subject to
subsection (5), apply to the Commission for such orders as the
Commission may make under section 6 and as are necessary to
carry out the accepted plan.
(2) The Commission may receive an application in respect of
a transportation study area that includes only a part of an
urban area if the Commission is satisfied that the accepted plan
materially affects only those municipalities located wholly or in
part in the transportation study area to which the accepted plan
relates.
(6) The Commission may, if it deems it necessary to do so,
make rules for the handling of applications under subsection
(1), and may by such rules prescribe the periods during which
applications will be received by the Commission and may adopt
an order of priorities governing the receipt by it of any such
applications.
Paragraph 5(1)(a) of the Act provides as
follows:
5. (1) The accepted plan, together with the financial plan,
shall be filed with the Commission and the Commission may
accept the transportation plan and the financial plan either as
submitted or with such changes in either of them as the
Commission considers necessary, if
(a) The financial plan will not, in the opinion of the Commis
sion, either
(i) impose on any railway company affected thereby any
costs and losses greater than the benefits and payments
receivable by the railway company under the plan, or
(ii) confer on any railway company affected thereby any
benefits and payments greater than the costs and losses
incurred by the railway company under the plan;
Subsection 5(2) sets out the requirement for a
hearing before making any order under section 6
in respect of any accepted plan, stating as follows:
5. ...
(2) Before making any order under section 6 in respect of
any accepted plan, the Commission shall hold a hearing
thereon.
As previously stated, counsel for the railways
and the city of Regina were agreed that the Court
had jurisdiction to entertain the application for
prohibition under section 18 of the Federal Court
Act and should proceed to determine the statutory
issue pertaining to the Phase II application on its
merits. I expressed serious misgivings about this
because of the recent decision of the Federal Court
of Appeal in Canadian National Railway Co. v.
Canadian Transport Commission [[1986] 3 F.C.
548 (C.A.)]. The reasons for judgment applied
equally to the other appeal decision in Canadian
Pacific Limited v. Canadian Transport Commis
sion [Indexed as: Canadian National Railway Co.
v. Canadian Transport Commission].' Both cases
were appeals from the decisions of Mr. Justice
Pinard dismissing the applications of the railways
for prohibition and certiorari against a decision of
the Canadian Transport Commission dated Febru-
ary 8, 1985 [WDR 1985-02].
The Commission's decision dealt with and
rejected preliminary motions brought by the rail
ways to strike the application for Phase I reloca
tion filed by the city of Regina. After dealing
exhaustively with substantially the same argu
ments of statutory non-compliance and consequent
lack of jurisdiction as are now advanced in respect
of the Phase II application, the Commission con
cluded as follows:
In our opinion, the conditions precedent to the receipt of the
relocation application by the Commission have been satisfied
and the application filed is not one which is beyond the
jurisdiction of this Commission to grant or deny, based on the
evidence to be adduced by the parties following a public
hearing on the merits. Furthermore, Canadian Pacific Limited
and the Canadian National Railway Company have failed to
discharge the onus of proof imposed by law to show why the
Reported: [1986] 3 F.C. 548 (C.A.).
Application of the City of Regina should be struck out. Accord
ingly, for all of the above reasons the motions brought by both
CP and CN to strike the Application are denied.
Pinard J., held that section 29 of the Federal
Court Act deprived the Trial Division of section 18
jurisdiction because the Commission's decision to
receive the Phase I application essentially dealt
with a question of law and of jurisdiction that
could be appealed to the Federal Court of Appeal
by virtue of subsection 64(2) of the National
Transportation Act [R.S.C. 1970, c. N-17 (as am.
by R.S.C. 1970 (2nd Supp.), c. 10, s. 65)].
The Federal Court of Appeal unanimously
agreed with that result. Hugessen J., stated the
Court's conclusion in Canadian National Railway
Co. v. Canadian Transport Commission, supra, at
page 552 as follows:
Accordingly we conclude that the Trial Division was without
jurisdiction to entertain the applications for prohibition and
certiorari because the impugned decision of the Commission,
although simply an interlocutory ruling, raised a question of
law or of jurisdiction which could properly have been made the
subject of an appeal to this Court under subsection 64(2) of the
National Transportation Act. We recognize that in so holding
we have gone further than was explicitly decided by this Court
in Canadian National Railway Co. v. Canadian Transport
Commission, [1982] 1 F.C. 458 (C.A.) but the facts of that
case did not require the Court to consider the broader aspects
of the question which we decide today.
The railways sought leave to appeal this decision
to the Supreme Court of Canada. Their applica
tions were denied in December, 1986.
The Commission's letter of August 21, 1985
explicitly states that "the Commission is satisfied
that no statutory conditions precedent are out
standing in respect of the Phase II application and
therefore the Phase II application is considered to
be received within the meaning of Part I of the
R.R.C.A. as of this date". The issue of the case at
this juncture, as I see it, is whether this is an
appealable "decision" or "interlocutory ruling"
within the purview of the judgment of the Federal
Court of Appeal in Canadian National Railway
Co. v. Canadian Transport Commission, supra. If
the answer is in the affirmative then I am clearly
bound by the appellate decision.
Subsection 64(2) of the National Transporta
tion Act reads as follows:
64....
(2) An appeal lies from the Commission to the Federal 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 29 of the Federal Court Act states:
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, commis
sion or tribunal, that decision or order is not, 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.
As Mr. Justice Hugessen pointed out in his
reasons for judgment in the Canadian Pacific
[Canadian National] appeal decision, the focus of
the text of subsection 64(2) of the National
Transportation Act is on the appealable question
of law or jurisdiction rather than on the actual
form of the decision or order sought to be appealed
from. The learned Judge was led to conclude [at
page 552] that "the emphasis of section 64 is on
the `question', be it of law or jurisdiction, rather
than on the technical vehicle by which the matter
was dealt with by the Commission".
The case of Canadian National Railway Co. v.
Canadian Transport Commission, [1982] 1 F.C.
458 (C.A.) was an appeal from a decision of the
Railway Transport Committee of the Canadian
Transport Commission in an application by CN
for the abandonment of a line of railway in British
Columbia. The Commission ruled at an oral hear
ing that information as to costs and revenues filed
by the railway in support of its application had to
be disclosed to the respondent British Columbia
Forest Products pursuant to section 331 of the
Railway Act [R.S.C. 1970, c. R-2]. The issue was
whether this "carefully circumscribed" ruling of
the Commission was an "appealable decision"
under subsection 64(2) of the National Transpor
tation Act. The Court held that it was.
Urie J., per curiam, said at page 463:
While I am not unmindful of the fact that subsection 64(2)
of the National Transportation Act gives a right of appeal after
obtaining leave only from orders, decisions, rules and regula
tions, I am satisfied that, in the circumstances of this case, the
ruling made is a "decision" of the kind contemplated by that
section because it is one made within the jurisdiction of the
Commission as provided by section 331 of the Railway Act. I
say this notwithstanding the fact that as yet no one has been
ordered to do anything nor has anything been done, apparently,
pursuant to the ruling. I have formed my opinion on the basis
that section 331 gave to the Commission the jûrisdiction to
make the ruling it made. As such it is an appealable decision
under subsection 64(2) of the National Transportation Act.
Counsel for the railways take the position that
the Commission's letter of August 21, 1985 does
not qualify as an appealable decision or order,
interlocutory or otherwise, that raises an issue
between the parties from which legal obligations
could flow. In other words, there was no lis or
justiciable controversy like the one before the
Commission on the motions to strike the Phase I
application. Counsel for the city of Regina sup
ported this position. Counsel for Canadian Pacific
draws the interesting analogy that all the letter of
August 21, 1985 did was simply confirm that an
application had been received sufficient to start
the time running for the filing of answers and that
this was no different in actuality from the action of
a registrar or a clerk of an ordinary court confirm
ing that a pleading or other court document had
been duly filed. Counsel for the railways are insist
ent that the Commission's letter represented noth
ing more than an acknowledgment of the receipt of
the City's Phase II application that marked the
inception of the pleading process. In any event,
they submit that the waiver or acquiescence of the
parties cures any contingent defect of jurisdiction
relating to procedural matters or requirements.
Counsel for the Commission came under fire
from counsel for the railways in adopting what was
alleged to be an aggressive, adversarial position. In
my view, the submissions made by counsel for the
Commission related solely to the question of juris
diction and contained no hint of adversarial
impropriety.
The law is clear that the consent or agreement
of the parties cannot confer jurisdiction on a court
where none in fact exists. This is especially so in
the case of a court like the Federal Court, which is
a creature of statute whose jurisdiction is defined
and limited by the instrument of its creation.
While consent cannot cure a total want of jurisdic
tion touching the subject-matter of a claim or
controversy, contingent defects of jurisdiction
relating to purely procedural requirements may be
waived in appropriate circumstances. Matters of
practice and questions of jurisdiction are two sepa
rate and distinct things. The total absence of juris
diction under a statute with respect to a particular
subject-matter is quite a different thing from a
procedural irregularity which may be waived by
agreement or by taking a step in the proceeding
without raising objection. Where a court pro
nounces judgment in a matter over which it has no
jurisdiction, the decision amounts to nothing. See
De Smith's Judicial Review of Administrative
Action, 4th ed., at page 422; Farquharson v.
Morgan, [1894] 1 Q.B. 552 (C.A.), at page 560;
Township of Cornwall v. Ottawa and New York
Railway Co. et al. (1916), 52 S.C.R. 466; 30
D.L.R. 664; Canadian Pacific Railway Co. v.
Fleming (1893), 22 S.C.R. 33; Dominion Canners
Ltd. v. Costanza, [1923] S.C.R. 46; [1923] 1
D.L.R. 551; Mulvey vs The Barge Neosho (1919),
19 Ex.C.R. 1; Harris Abattoir Co. Ltd. v. SS.
Aledo & Owners, [1923] Ex.C.R. 217; and Essex
Incorporated Congregational Church Union v.
Essex County Council, [1963] A.C. 808 (H.L.).
Lord Reid stated the following conclusion in the
Essex Church case, supra, at pages 820-821:
... in my judgment, it is a fundamental principle that no
consent can confer on a court or tribunal with limited statutory
jurisdiction any power to act beyond that jurisdiction.....
Anglin J., expressed the same view in Dominion
Canners Ltd. v. Costanza, supra, when he said at
pages 66-67 S.C.R.; 568 D.L.R.:
Where a court is deprived of jurisdiction over a subject by
statute no acquiescence—not even express consent—can confer
jurisdiction upon it.
In some cases the courts have recognized an
agreed departure or deviation from the standard
practice and procedure in dealing with a subject-
matter over which the court had ultimate jurisdic
tion on the basis of the parties having agreed to
abide by the court's decision. In these exceptional
circumstances, the court assumes the role of quasi-
arbitrator whose decision is not subject to review
or appeal. I am unable to conclude that the present
case falls within this extra curiam category. On
the contrary, it seems to me that the first question
calling for answer in the case is whether the
consent of the parties can give the Court jurisdic
tion over a particular subject-matter from which it
may have been divested by statute. In my opinion,
the mere consent of the parties is ineffectual to
accomplish such an end. In short, consent cannot
give the court a jurisdiction which statutory au
thority denies.
Essentially, the case poses the perplexing conun
drum of how this Court can possess jurisdiction to
prohibit the Commission from proceeding with the
hearing of the Phase II application of the city of
Regina when it was determined by the Federal
Court of Appeal that it had no jurisdiction to
prohibit the hearing of the City's Phase I applica
tion. According to the applicants, the answer is
said to lie in the fact that the Commission made a
decision on the merits of the controversy arising
from the Phase I application, while the decision or
order or ruling, call it what you will, with respect
to the Phase II application was nothing more than
an acknowledgment of its receipt. If that is so,
then the next question that suggests itself, as it
seems to me, is what is the prerogative remedy of
prohibition seeking to prohibit. The applicants'
ready response is the want of jurisdiction in the
Commission to entertain Phase II that is apparent
on the face of the proceedings, pointing out that in
such a case the availability of prohibition is not
dependent on the existence of any decision by a
statutory tribunal. I agree that prohibition will lie
to prevent the exercise of a patent defect of juris
diction by a statutory tribunal without having to
await the outcome of a final decision. I express no
opinion beyond this on the question of the appar
ent defect of jurisdiction by reason that this would
entail going into the merits of the controversy
before having first cleared the hurdle of the juris
dictional issue.
In my opinion, the short question posed by that
issue is whether the letter of August 21, 1985 was
an order or decision of the Commission upon a
question of law or of jurisdiction from which an
appeal lay to the Federal Court of Appeal under
subsection 64(2) of the National Transportation
Act.
Subsection 46(1) of the National Transporta
tion Act empowers the Canadian Transport Com
mission to make orders or regulations in the exer
cise of any statutory jurisdiction conferred on it by
Parliament. By virtue of subsection 46(2), any
such orders or regulations may be made to apply
to any particular case or class of cases. Sections 57
to 63 of the Act deal with the topic of orders and
decisions made by the Commission. Subsection
57(2) provides that the Commission may make
interim orders and reserve further directions for an
adjourned hearing of the matter or for further
application.
The Commission is the administrative tribunal
empowered by the Railway Relocation and Cross
ing Act to entertain applications to facilitate the
relocation of railway lines or the rerouting of
railway traffic in urban areas. I have already
covered to some extent the statutory provisions
which seem to be particularly applicable to the
exercise of the Commission's statutory jurisdiction.
To recapitulate, subsection 3(1) of the Act pro
vides that a municipality may apply to the Com
mission for orders compelling the relocation of
railway facilities within an area referred to as a
transportation study area where: (a) such trans
portation study area includes or comprises an
urban area; and (b) the government of the prov
ince and all the municipalities in that transporta
tion study area have agreed upon an urban de
velopment plan and a transportation plan (therein
referred to as an "accepted plan"). Pursuant to
subsection 3(2), the Commission may receive an
application in respect of a transportation study
area that includes only a part of an urban area if
the Commission is satisfied that the accepted plan
materially affects only those municipalities located
wholly or in part in the transportation study area
to which the accepted plan relates. Subsection 3(6)
authorizes the Commission to make such rules as
it deems necessary for the handling of applications
under subsection 3(1) and the governing of the
time periods of their receipt and the order of
priorities thereof.
The Commission's letter of August 21, 1985
stated unequivocally that the Phase II relocation
application filed by the city of Regina was con
sidered to have been received within the meaning
of Part I of the Railway Relocation and Crossing
Act. In making this determination, the Commis
sion satisfied itself that the accepted plan materi
ally affected only those municipalities located
wholly or in part within the transportation study
area to which the accepted plan related and that
there were no statutory conditions precedent left
outstanding in respect of the Phase II application.
Clearly, the Commission formulated an opinion
regarding its statutory authorization to receive the
Phase II relocation plan. In my opinion, this ruling
was a decision or order on a question of law or of
jurisdiction from which legal consequences would
inevitably flow, notwithstanding that nothing fur
ther was ordered or required to be done at that
particular stage pursuant to such ruling. In my
view, it is immaterial that the ruling was issued
and communicated in letter form. In the result, I
find that the decision contained in the Commis
sion's letter of August 21, 1985 dealt with a
question of law or of jurisdiction from which an
appeal lay to the Federal Court of Appeal under
subsection 64(2) of the National Transportation
Act. It follows therefore that this Court is preclud
ed by section 29 of the Federal Court Act from
granting prohibition.
For these reasons, the applicants' motions are
dismissed with costs to the respondent.
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.