T-975-79
James Vincent Doucette (Plaintiff)
v.
Minister of Transport (Defendant)
Trial Division, Mahoney J.—Halifax, March 22;
Ottawa, March 27, 1979.
Prerogative writs — Application for prohibition — Labour
relations — Plaintiff's employment involving driving vehicles
on apron of airport for private contractor servicing aircraft —
Air Traffic Regulations requiring operators of motor vehicles
to have necessary provincial licences — Employer, acting on
interpretation of Regulations made by agent of defendant,
dismissed plaintiff after his driver's licence was suspended
Although that interpretation of Regulations is incorrect, Court
is unable to order prohibition or reinstatement as employer is
not a 'federal board, commission or other tribunal" — Motor
Vehicle Act, R.S.N.S. 1967, c. 191, ss. 1(t), 10(1), 57(1) —
Airport Traffic Regulations, SOR/74-469, ss. 2, 5(1),(2),
6(1),(2) — Federal Court Rules, 319, 400, 603.
APPLICATION.
COUNSEL:
G. Michael Owen for plaintiff.
M. C. Ward for defendant.
SOLICITORS:
Fitzgerald & Company, Halifax, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The issue is whether the plaintiff
is required to have a valid Nova Scotia driver's
licence to operate a motor vehicle on the apron at
Halifax International Airport. On consent, the
style of cause was amended at the hearing to that
appearing above. The plaintiff seeks in this pro
ceeding, commenced by originating notice of
motion, an order in the nature of prohibition and
declaratory relief. Rule 603 requires that a pro
ceeding for declaratory relief be brought by way of
an action under Rule 400 and not by way of an
application under Rules 319 et seq. Accordingly,
only the prohibition application was proceeded
with.
The plaintiff was employed by a contractor ser
vicing aircraft on the apron of Halifax Internation
al Airport. He operated his employer's vehicles
there. His driver's licence was suspended. An offi
cial of the Ministry of Transport at the airport, on
inquiry by the plaintiff's employer, expressed the
view that the plaintiff could not lawfully continue
operating vehicles on the apron. His employment
was terminated.
The Airport Traffic Regulations,' provide:
2. In these Regulations,
"apron" means that part of an airport, other than the ma
noeuvring area, intended to accommodate the loading and
unloading of passengers and cargo, the refuelling, servicing,
maintenance and parking of aircraft and the movement of
aircraft, vehicles and pedestrians to allow execution of those
functions;
5. (1) No person shall operate a motor vehicle on an airport
unless
(a) he holds all licences and permits that he is, by the laws
of the province and the municipality in which the airport is
situated, required to hold in order to operate the motor
vehicle in that province and municipality; and
(b) the motor vehicle is registered and equipped as required
by the laws of the province and the municipality in which the
airport is situated.
(2) For the purpose of these Regulations, a provincial certifi
cate of motor vehicle registration shall be prima facie proof of
ownership of the motor vehicle.
6. (1) No person shall operate a motor vehicle on an airport
otherwise than in accordance with the laws of the province and
the municipality in which the airport is situated.
(2) In this Part, the expression "laws of the province and the
municipality" does not include laws that are inconsistent with
or repugnant to any of the provisions of the Government
Property Traffic Act or these Regulations.
' SOR/74-469.
The pertinent provisions of the Motor Vehicle
Act e are:
I In this Act,
(t) "highway" means a public highway, street, lane, road,
alley, park, beach or place and includes the bridges thereon;
10 (1) Every owner of a motor vehicle, trailer or semi-trailer
intended to be operated upon a highway in Nova Scotia shall,
before the same is so operated, apply to the Department for and
obtain the registration thereof ...
57 (1) No person except those expressly exempted under
Sections 59, 62 and 67(6) shall drive any motor vehicle upon a
highway in this Province unless upon application he has been
licensed as an operator or chauffeur by the Department under
this Act.
The applicable Nova Scotia jurisprudence was
extensively reviewed by O'Hearn Co. Ct. J., in R.
v. Maclean.' The adjective "public" in paragraph
1(t) modifies all nouns that follow it. The evidence
as to the circumstances under which persons may
be permitted upon the apron is comprehensive.
The apron at Halifax International Airport is not a
public place. It is not a highway within the defini
tion of the provincial Act.
The vehicles used by the plaintiffs former
employer on the apron are not required by para
graph 5(1)(b) of the Airport Traffic Regulations
to be registered under subsection 10(1) of the
Motor Vehicle Act and, in fact, are not so regis
tered. The operators of those vehicles on the apron
are likewise not required by paragraph 5(l)(a) of
the Regulations to hold licences under subsection
57(1) of the Act. The view of the import of the
Regulations communicated by the defendant's
agent to the plaintiff's former employer was mis
taken. He ought not, for that reason, have lost his
job.
That said, the relief sought is inappropriate and
cannot be granted. The defendant has neither
made nor proposes to make any decision that
would determine the plaintiffs right to continue in
his job. That decision was made by his former
2 R.S.N.S. 1967, c. 191 as amended.
3 (1974) 17 C.C.C. (2d) 84 at 94 ff.
employer who is not a "federal board, commission
or other tribunal" subject to the supervision of this
Court under section 18 of the Federal Court Act. 4
On the evidence before me, it was made entirely
because of the mistaken assumption that, to con
tinue in his job, the plaintiff required a valid Nova
Scotia driver's licence. I can hope, but cannot
order, that the former employer will accept this
decision, as a good reason to reinstate him in his
employment.
The application will be dismissed but, in the
circumstances, without costs.
JUDGMENT
The application is dismissed without costs.
° R.S.C. 1970 (2nd Supp.), c. 10.
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.