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Kaps Transport Ltd. (Applicant)
v.
Canadian Transport Commission (Respondent)
Trial Division, Heald J.—Ottawa, May 31 and June 1, 1973 .
Transport—Prohibition—Mandamus—Pending public hear ing of water transport licence applications—Whether applicant entitled to licence without hearing—Injunction to prohibit hearing refused—Mandamus to compel issue of licence refused—Transport Act, R.S.C. 1970, c. T-14, secs. 5, 10(5).
In September 1972 applicant applied to the Water Trans port Committee (W.T.C.) of the Canadian Transport Com mission to increase the tonnage of its fleet plying the Mac- kenzie River for 1973. In December the W.T.C. by letter notified applicant that no objections to its application having been received from other licensees it was prepared to receive the application. In May 1973 the W.T.C. notified applicant that it would hold a public hearing in Edmonton in June of all applications for increased authority. Applicant, which had incurred substantial expenditures in reliance on the letter of December 1972 and an assurance from an official of the W.T.C. that its application would be granted, applied for an interim injunction to prevent the holding of the public hearing of its application and for a mandamus directing the W.T.C. to grant applicant the authority sought.
Held, the application must be dismissed.
(1) Since other operators in the same waters who had also applied for increased authority for 1973 had not been made parties to this proceeding, an injunction would only be granted if special circumstances were shown, which had not been done.
(2) The W.T.C. had both the right and the duty under sections 5 and 10(5) of the Transport Act, R.S.C. 1970, c. T-14 to order a public hearing and to determine the question of public convenience and necessity with respect to appli cant's application, and hence mandamus did not lie.
MOTION. COUNSEL:
B. A. Crane, R. A. Young and R. J. Wilkins for applicant.
G. W. Nadeau and W. G. St. John for respondent.
SOLICITORS:
Gowling and Henderson, Ottawa, for applicant.
G. W. Nadeau, Ottawa, for respondent.
HEALD J.—This motion must be dismissed for the following reasons:
(1) The motion asks, inter alia, for an interim injunction preventing the Water Transport Com mittee (hereafter W.T.C.) of the Canadian Transport Commission (hereafter C.T.C.) from holding public hearings at Edmonton, Alberta on June 4, 1973 and June 7, 1973. One of the purposes of said hearings is to consider the application of this applicant to transport goods by water in the Mackenzie River and the Beau- fort Sea and, in particular, to deal with its application to license an increased tonnage in 1973 over 1972. Other operators in these same waters also applied for licences covering increased tonnages in 1973 over the tonnages licensed to them in 1972. The respondent pro poses to deal with the applications of these other operators at the same Edmonton hearings. Thus, these other parties are vitally and directly interested in said hearings and, yet, they have not been added as parties to this originating motion nor have they received notice of same. Where the injunction sought will injuriously affect the rights of a person or body not before the Court it will not ordinarily and without special circumstances be granted. (See, for example, Matthew v. Guardian Assurance Co. (1917-19) 58 S.C.R. 47 at p. 61.) These other parties to the proposed hearings in Edmonton are directly and vitally interested in said hear ings and should certainly be parties to any application to the Court, which, if granted would result in said hearings being stopped. The applicant has adduced no evidence of any spe cial circumstance justifying departure from the general rule.
The other relief asked for in the motion is for a writ of mandamus directing the W.T.C. of the C.T.C. to issue 1973 licences to the applicant for the additional tonnage asked for.
One of the applicant's main arguments for mandamus was on the basis of a practice adopt ed by the W.T.C. over a period of years in issuing said annual licences, not only to this applicant, but to other competing operators on the same waters. To support its position, the applicant filed an affidavit by an officer of one of the other operators (Northern Transportation Co. Ltd.) which affidavit sets out the practice adopted by the W.T.C. in issuing its annual licences over the years. It is basic to the appli cant's submissions that W.T.C. must follow its usual practice and cannot arbitrarily depart from it and that the respondent is estopped from taking a different position for the 1973 licensing year. Since the licensing practice of past years is vital to his argument in support of the motion, surely the licensing practice of the respondent with respect to the other licensees of past years would be relevant to a proper consideration of this issue. Had the other licensees in the area, who had also applied for additional tonnage in 1973, been made parties to this proceeding, they might well have adduced evidence which either supported or contradicted the applicant's evid ence. I think they should have been given that opportunity. These other licensees are parties having an interest in this proceeding and are therefore proper parties to the proceeding. (See Woolworth v. Labour Relations Board (Sask.) [1954] 4 D.L.R. 359.)
(2) Mandamus lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest. The applicant must show that he has demanded per formance of the duty and that performance has been refused by the authority obliged to dis charge it.
In the case at bar, the applicant applied in respect of the 1973 licence year, to augment its fleet by the addition of one tug and four barges, involving an increase in tonnage of approxi mately 2,900 tons. The application was made
under the provisions of section 5 and section 10(5) of the Transport Act, (R.S.C. 1970, c. T-14) which sections read as follows:
5. Before any application for a licence under this Act is granted for the transport of goods or passengers or both goods and passengers, the Commission shall determine whether public convenience and necessity require such transport, and in so determining the Commission may take into consideration, inter alia,
(a) any objection to the application that may be made by any person or persons who are already providing trans port facilities, whether by rail or water, on the routes or between the places that the applicant intends to serve, on the ground that suitable facilities are or, if the licence were issued, would be in excess of requirements, or on the ground that any of the conditions of any other trans port licence held by the applicant have not been complied with;
(b) whether or not the issue of the licence would tend to develop the complementary rather than the competitive functions of the different forms of transport, if any, involved in such objections;
(c) the general effect on other transport services and any public interest that may be affected by the issue of the licence; and
(d) the quality and permanence of the service to be offered by the applicant and his financial responsibility, including adequate provision for the protection of passen gers, shippers and the general public by means of insurance.
10. (5) The Commission shall issue a licence in respect of a ship built, being built or about to be built, upon being satisfied that the proposed service is and will be required by the present and future public convenience and necessity, and unless the Commission is so satisfied no licence shall be issued.
By letter dated September 22, 1972, the appli cant made a preliminary request for such increased tonnage to the W.T.C. The W.T.C. notified other licensees in these waters of said request, giving a deadline of November 27, 1972 for submissions on said request. On December 13, 1972, the W.T.C. informed the applicant by letter that no objections had been received and further informing the applicant:
... that the Commission is prepared to receive your applica tion for licensing in 1973 of the subject tonnage, in addition to that licensed in 1972. (Italics mine).
The applicant took the position that this letter was, in effect, a decision of the W.T.C. to grant its request for increased tonnage and that all that remained was the simple administrative act
of issuing the licence. The respondent thought otherwise.
On May 22, 1973, the respondent notified the applicant that the Committee would hold a public hearing in Edmonton on June 4, 1973 in respect of all applications for increased operat ing authority for 1973. On May 24, 1973, the respondent further explained that since the aggregate tonnage covered by applications for 1973 licences was very much in excess of the aggregate tonnage licensed for 1972, for this reason, the Committee had decided that said additional tonnage could not be licensed until a careful investigation of the present and future of public convenience and necessity require ments for such tonnage had been completed and that the planned public hearing in Edmonton was a part of that investigation.
On the evidence before me, I am satisfied that the W.T.C. in these circumstances, not only had the right but the duty under sections 5 and 10(5) of the Transport Act (supra) to order this hear ing and to determine the question of public convenience and necessity. I do not agree that applicant's letter of September 22, 1972, was an application as required under the Act—it was merely a preliminary approach. It was so treated by W.T.C. in its letter of December 13, 1972 where it advised the applicant that it was pre pared to receive its application for licensing in 1973. Once the W.T.C. was made aware of the large increase in tonnage being asked for by various operators for 1973, it made what I con sider the right and reasonable decision, namely, to call for a public hearing where the matter could be fully aired.
It is unfortunate that applicant went ahead and incurred substantial expenditures on the basis of the letter of December 13, 1972 and an assurance from an official of the Commission. However, I am sure the applicant was aware of the provisions of section 5 and section 10(5) of the Act and the necessity for the Commission to consider public convenience and necessity under both sections. I do not feel that it can now be heard to complain when the Commis-
sion seeks to discharge the duties and obliga tions imposed on it by the statute.
The application is therefore dismissed with costs.
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