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Grauer Estate (Plaintiffs)
v.
The Queen and Isidor Wolfe (Defendants)
Trial Division, Collier J.—Vancouver, B.C., February 21,1973.
Judicial review—Prohibition—Expropriation—Objections to expropriation—Public hearing by hearing officer—Refusal to grant adjournment to consider technical evidence— Whether prohibition lies—Hearing officer's functions administrative—Expropriation Act, R.S.C. 1970I, (1st Supp.), c. 16, s. 8.
The Crown filed a notice of intention to expropriate certain lands on Sea Island for an additional runway for the Vancouver International Airport. The owners of commercial property at the end of the proposed runway filed objections and a public hearing was conducted by a hearing officer pursuant to section 8 of the Expropriation Act. The Crown put in evidence of a very technical nature respecting noise pollution and the plaintiffs requested an adjournment to consider it. The hearing officer refused the adjournment. Plaintiffs applied for a writ of prohibition.
Held, the application must be dismissed.
1. A hearing officer's functions under section 8 of the Expropriation Act are purely administrative and not judicial or quasi-judicial, and hence prohibition does not lie.
F. F. Ayriss & Co. v. Board of Industrial Relations of Alberta (1960) 23 D.L.R. (2nd) 584; Guay v. Lafleur [1964] C.T.C. 350; Regina v. Ontario Labour Relations Board (1'966) 57 D.L.R. (2nd) 521, referred to.
2. If the hearing officer did exercise judicial or quasi-judi cial functions, his refusal of an adjournment was made in the course of proceedings before him, and the jurisdiction to set aside his order lay with the Appeal Division.
M.N.R. v. Creative Shoes [1972] F.C. 993; Re Wiscon- sin and Armstrong (1'972) 8 C.C.C. (2nd) 452, referred to.
APPLICATION for a writ of prohibition and an injunction.
COUNSEL:
A. D. McEachern for plaintiffs.
N. D. Mullins, Q.C., for defendants.
SOLICITORS:
Russell and - DuMoulin, Vancouver, for plaintiffs.
Deputy Attorney General of Canada for defendants.
COLLIER J.—In this case, because of the urgency of the matter, I am prepared to give oral judgment now, although I would have pre ferred to have further time to deal in more detail with the arguments presented. This is not to say that I have doubts as to my decision.
The plaintiffs commenced an action in the Trial Division of this Court, claiming an order directing the issue of a writ of prohibition to the defendant Wolfe, prohibiting him from complet ing a public hearing which he is currently con ducting as a Hearing Officer pursuant to section 8 of the Expropriation Act, R.S.C. 1970, c. 16 (1st Supp.).
The hearing is in respect to the proposed expropriation of certain lands on Sea Island for the construction of an additional runway for Vancouver International Airport. The plaintiffs have filed, as required by the Act, objections to the proposed expropriation. Their main com plaint is that certain commercial premises which they operate have not been included in the property to be taken and because of their loca tion at the end of the proposed runway, their value and the business carried on will be seri ously diminished and affected by the additional runway.
The defendant Wolfe was appointed on Janu- ary 22nd, 1973. The Expropriation Act provides and I paraphrase, that the Hearing Officer shall at the hearing, provide an opportunity to be heard, to each person appearing, who served an objection, in order to report to the Minister involved on the nature and grounds of the objections. The statute further states that within 30 days after his appointment, he shall submit his report to the Minister on the nature and grounds of the objections made. The Attorney General of Canada may extend this 30 day period up to a further 30 days. The Minister can, after receipt of the report, confirm his intention to expropriate, or can abandon the scheme but the confirmation must be done within 120 days of the original notice of inten tion, otherwise the scheme is deemed to be
abandoned. The original notice of intention here was November 4th, 1972.
The material before me indicates that the public hearing commenced on January 29th, 1973, and that there were one or more adjourn ments, one at the request of the plaintiffs. During the course of the hearing, and as late as February 13th, 1973, the Minister of Transport, presumably pursuant to subsection 4(4) of the Expropriation Act, made certain additional information as to the proposed new runway available to the plaintiffs. A good deal of this information furnished on February 13th, 1973, dealt with the noise pollution factor and there is no doubt it is of a very technical nature, and would require persons skilled in this field to interpret and assess it.
The plaintiffs on February 15th, 1973, applied for the adjournment of the hearing or the part of it relating to them, presumably for some length of time, in order to set up and obtain that technical skilled advice. The plain tiffs say that an adjournment was and is neces sary, in order to obtain that skilled advice, to consider all the data, and thus make a meaning ful objection to the Hearing Officer.
The Hearing Officer refused this request for an adjournment. This action was then launched, claiming the relief outlined, and a motion for a writ of prohibition and an injunction was requested in the action.
In my view, the legal tackle is not in order; (I interpolate Rule 603) but I adopt the procedure taken by Walsh J. in this Court in Creative Shoes Ltd. v. Dep. Min. of Nat. Rev. for Cus toms and Excise [1972] F.C. 115 and shall treat the present proceedings, including the action as a motion for prohibition.
The plaintiffs contend that the defendant Wolfe is a federal board, commission or other tribunal, as defined in section 2 of the Federal Court Act, that in his capacity as a hearing officer, he exercises judicial or quasi-judicial functions, and that in the circumstances here there was a violation of a principle of natural
justice in refusing the adjournment, which allows this Court to carry out its supervisory power to prohibit the continuance of the hearing or the filing of the report until a reasonable adjournment is granted.
Mr. Mullins, counsel for the Hearing Officer, submits that the functions exercised by the Hearing Officer are purely administrative in character and in accordance with well settled authority, a court cannot interfere by, in this case, prohibition. In my opinion, this contention is well founded, see F. F. Ayriss Co. v. Board of Industrial Relations of Alberta (1960) 23 D.L.R. (2nd) 584; Guay v. Lafleur [1964] C.T.C. 350, and Regina v. Ontario Labour Relations Board (1966) 57 D.L.R. (2nd) 521.
Mr. McEachern for the plaintiffs contends that these authorities predated the present Expropriation Act, dealt with other statutes and should be given little consideration in consider ing this new statute. I think that contention to be too sweeping. In my view, the Hearing Offi cer, under section 8 of the Act, in essence, simply hears objections and merely reports on their nature and grounds. He has no power to make any decision in respect to objections made to the scheme or proposal. I point out, that in the Federal Court Act, which is of a later vin tage than the Expropriation Act, Parliament rec ognized the distinction between so-called administrative functions and judicial or quasi- judicial functions. (See section 28.)
If I am wrong in the view I take of the functions of the Hearing Officer and if he is indeed the type of tribunal which renders deci sions on a judicial or quasi-judicial basis, then I am of the opinion that I, sitting in the Trial Division of this Court, have no jurisdiction to hear this motion.
I refer to subsection 28(3) of the Federal Court Act and the decisions of the Appeal Divi sion of this Court in M.N.R. v. Creative Shoes
[1972] F.C. 993; and Re Wisconsin and Arm- strong (1972) 8 C.C.C. (2nd) 452. In this case, if the Hearing Officer is performing quasi-judicial functions, then his decision to refuse the request for adjournment was, to my mind, made in the course of the proceedings before him, and the jurisdiction to set aside or review that order lies with the Appeal Division.
There is still technically time to make that application, although for practical purposes, it may be ineffective.
The motion is therefore dismissed. No order as to costs.
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