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.
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.