Digests

Actton Transport Ltd. v. Steeves

T-671-01

2001 FCT 984, O'Keefe J.

31/8/01

13 pp.

Motion to stay judicial review application until after statutory appeal decided by referee--Inspector under Canada Labour Code made payment order--Applicant commenced statutory appeal pursuant to Canada Labour Code, s. 251.11--Subsequently filed application for judicial review of same decision--Minister of Labour appointed Referee under section 251.12, who adjourned hearing of statutory appeal pending determination of judicial review--Applicant argued statutory appeal process constituted adequate alternative remedy--Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 set out factors to be considered in deciding whether adequate alternative remedy exists, including convenience of alternative remedy, nature of error, nature of appellant body (i.e. investigatory, decision-making, remedial capacities)--Supreme Court of Canada indicated "expeditiousness and costs" relevant factors, and category of factors should not be closed--Hearing before referee projected to last longer than one week; applicant intending to call at least three witnesses, two of whom from Vancouver; hearing before referee de novo, and both parties likely to call evidence--In judicial review application, applicant claiming part of definition of "city motor vehicle operator" in Motor Vehicle Operators Hours of Work Regulations either void for uncertainty or that sub-delegation of legislative powers contained therein ultra vires delegate of Parliament i.e. Governor in Council--If correct, conceivable Referee could hold lengthy hearing using wrong definition, hearing would eventually be heard all over again--Not expeditious manner in which to proceed--Less costly, more expeditious to allow judicial review to proceed--Appeal to Referee not adequate alternative remedy--Furthermore, statutory appeal process established by s. 251 not intended by Parliament to be exclusive process by which to challenge payment order issued pursuant to s. 251.1--Parliament not so stating in legislation--As stated in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, by not unambiguously highlighting exclusivity of statutory remedy Parliament leaving it to judiciary to define role in relation to that remedy--Should not be conflicting decisions as Referee in appeal hearing will be applying Court's finding as to what definition of "city motor vehicle operator" comprised--Motion for stay of judicial review application denied--Motor Vehicle Operators Hours of Work Regulations, C.R.C., c. 990, s. 2 "city motor vehicle operator"--Canada Labour Code, R.S.C., 1985, c. L-2, ss. 251.1 (as enacted by S.C. 1993, c. 42, s. 37), 251.11 (as enacted idem), 251.12 (as enacted idem).