A-69-74
Minister of Transportation and Communications
for the Province of Ontario (Applicant)
v.
The Canadian Transport Commission, Reimer
Express Lines Ltd. and Imperial Roadways Ltd.
(Respondents)
Court of Appeal, Jackett C.J., Pratte J. and
Hyde DJ.—Ottawa, December 10, 11 and 12,
1974.
Judicial review—Orders of Canadian Transport Commis
sion permitting long-distance trucking operations on Sun-
day—Discretion where undue delay freight traffic—Federal
Court Act, s. 28—National Transportation Act, s. 64(2).
The decision of the Canadian Transport Commission in
granting two orders permitting two cartage companies to
carry on certain long-distance transportation operations by
truck on the Lord's Day was made under the exercise of its
administrative discretion under section 11(x) of the Lord's
Day Act. It was a decision made to prevent undue delay in
the freight traffic of a transportation undertaking and the
Committee did not err in law in making that decision. The
section 28 applications for judicial review and the appeals
under section 64(2) of the National Transportation Act
were, therefore, dismissed.
Memorial Gardens Association (Canada) Ltd. v. Col-
wood Cemetery Co. [1958] S.C.R. 353, followed.
APPLICATION.
COUNSEL:
D. W. Burtnick for applicant.
P. Deniger for respondent, Canadian Trans
port Commission.
C. D. MacLeod for respondent, Reimer
Express Lines Ltd.
W. G. Ryall for respondent, Imperial Road
ways Ltd.
SOLICITORS:
Goodwin & De Blois, Quebec, for
applicant.
C. D. MacLeod, Toronto, for respondent,
Reimer Express Lines Ltd.
Fillmore and Riley, Winnipeg, for respond
ent, Imperial Roadways Ltd.
J. M. Fortier, Q.C., Ottawa, for respondent,
Canadian Transport Commission.
Deputy Attorney General of Canada, for
respondent, Crown in right of Canada.
D. W. Burtnick, Downsview, Ont., for
respondent, Minister of Transportation &
Communications for the Province of
Ontario.
Gowling & Henderson, Ottawa, for
respondent, Canadian Trucking Associa
tion.
Hewitt, Hewitt & Co., Ottawa, for respond
ent, Canadian Automobile Association.
Pharand, Kuyek & Lebel, Sudbury, for
respondent, Local 598 of the Mine Mill and
Smelter Workers Union.
J. Burns, Sudbury, for respondent, Regional
Municipality of Sudbury, intervenors
before Canadian Transport Commission.
The following are the reasons for judgment of
the Court delivered in English by
PRATTE J.: These proceedings involve section
28 applications and appeals under section 64(2)
of the National Transportation Act, by the Min
ister of Transportation and Communications for
Ontario and the Attorney General for the Prov
ince of Quebec, against two orders of The
Motor Vehicle Transport Committee of the
Canadian Transport Commission. By those two
orders, made under section 11(x) of the Lord's
Day Act, the Committee permitted two cartage
companies, Reimer Express Lines Ltd. and
Imperial Roadways Ltd. to carry on certain
long-distance transportation operations by truck
on the Lord's Day.
Section 11(x) of the Lord's Day Act reads as
follows:
11. Notwithstanding anything herein contained, any
person may on the Lord's Day do any work of necessity or
mercy, and for greater certainty, but not so as to restrict the
ordinary meaning of the expression "work of necessity or
mercy", it is hereby declared that it shall be deemed to
include the following classes of work:
(x) any work that the Canadian Transport Commission,
having regard to the object of this Act, and with the
object of preventing undue delay, deems necessary to
permit in connection with the freight traffic of any trans
portation undertaking.
This provision, as we understand it, gives to
the Commission the power to permit work on
Sunday in connection with the freight traffic of
any transportation undertaking whenever the
Commission is of the opinion that, having
regard to the object of the Lord's Day Act, such
work on Sunday is- necessary in order to prevent
a delay in the freight traffic, which delay the
Commission considers to be undue. The deci
sion that the Commission is empowered to make
under section 11(x) is the result of the formula
tion of an opinion by the Commission as to the
necessity, having regard to the object of the
Lord's Day Act, to prevent undue delay in the
freight traffic of a transportation undertaking.
Such a decision is of the same kind as the
decision that the Supreme Court of Canada had
to consider in Memorial Gardens Association
(Canada) Ltd. v. Colwood Cemetery Co. ([1958]
S.C.R. 353) and, as Abbott J. said [at page 357]
in that case,
... that decision is one which cannot be made without a
substantial exercise of administrative discretion.
Parliament has given to the Commission, not the
Courts, the responsibility of determining wheth
er the delay resulting from the interruption of
freight traffic is, in any given case, undue and
whether it is necessary to prevent it by permit
ting some work to be done on Sunday. On those
points, the Courts cannot substitute their opin
ion for that of the Commission.
Counsel for Ontario and Quebec argued that
the Committee had erred in law in deciding to
make the two orders under attack. In support of
that contention, counsel for Ontario put forward
three arguments:
(a) the Committee erred when it stated that
the object of the Lord's Day Act was to
provide a holiday;
(b) the Committee acted on irrelevant con
siderations in determining that the strict
observance of °?,e r.,ord's Day Act by the two
applicants would result in undue delay;
(c) the Committee erred in law when it
excluded, as irrelevant, evidence concerning
the effect of granting the applications upon
the safety and the congestion of certain high
ways in Ontario.
Dealing with the argument that the Committee
misconstrued the object of the Lord's Day Act,
it should be borne in mind that the Committee
did not have to determine that object for the
purpose of deciding the constitutional validity
of that statute. It had to deal with a much more
limited question. In those circumstances, it is
our view that the Committee did not err in law
when it proceeded to deal with the two applica
tions in the light of its understanding that the
Lord's Day Act has been enacted "to provide
that as many Canadians as possible should hold
Sunday as a holiday".
As to the contention that the decision of the
Committee to make the two orders here in ques
tion was bad because it was based on irrelevant
considerations, it, also, must, in our view, be
rejected. To determine whether the delay result
ing from the observance of the Lord's Day Act,
unalleviated by orders under section 11(x),
would, in the case of the two applicants be
"undue delay", the Committee had to consider
all the consequences of that delay. It appears to
us that this is precisely what the Committee did.
If one of the members of the Committee dis
sented from the majority it is because, it seems
to us, some of the consequences of the delay,
that appeared important to other members, were
judged by him not to have the same importance.
As to the decision of the Committee to
exclude evidence concerning the safety and the
congestion of certain highways in Ontario, it
appears to us, as we intimated during the hear
ing, to be clearly well-founded.
Counsel for the Attorney General for the
Province of Quebec argued, as we understood
him, that the decision of the Committee to grant
the two orders here under attack was based on
an erroneous interpretation of section 11(x). He
submitted that, under section 11(x), the Com
mission may not permit work to be done on
Sunday in connection with the transportation of
goods unless it be satisfied that such transporta
tion is a "work of necessity". If that interpreta
tion were to prevail, section 11(x), in our view,
would be rendered meaningless since the only
work that the Commission would be empowered
to authorize would be work that could lawfully
be done under the introductory words of
section 11. ,
For these reasons, the section 28 applications
and the appeals will be dismissed.
* * *
HYDE D.J. concurred.
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.