Judgments

Decision Information

Allied Auto Parts Ltd. v. C.T.C.

Collection	Judgments
Date	1982-11-03
Report citation	[1983] 2 F.C. 248
File numbers	A-495-82
Subjects	Administrative Law Railways

Decision Content

A-495-82

Allied Auto Parts Ltd. (Appellant) (Applicant)

Canadian Transport Commission and City of Winnipeg (Respondents) (Respondents)

Court of Appeal, Thurlow C.J., Heald J. and Lalande D.J.-Winnipeg, October 7; Ottawa, November 3, 1982.

Judicial review - Applications to review - Transportation - Application to review and set aside Order of Railway Transport Committee authorizing construction of railway crossing and subway, and appeal from Order under s. 64(2), National Transportation Act - Appellant requested hearing to state objections - Commission twice requested details of objections but none forthcoming - Evidence that Commission considered City's application prior to final request for submis sions - Commissioners making Order aware Commission President indicated to Minister of Transport order would be issued if funding authorized - Order made 18 days after second request for submissions, no hearing having been held S. 28 application dismissed and Order certified valid - No denial of audi alteram partem rule or duty to act fairly as on facts appellant had reasonable opportunity to be heard Consideration of application prior to final request for submis sions not breach of natural justice, no formal order having been made - Committee still free to consider fairly and give effect to relevant objections - Lalande D.J. adding that question of appellant's private interest outside Commission's jurisdiction which is restricted to "protection, safety and con venience of public" by Railway Act and Railway Relocation and Crossing Act - Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 28, 29 - National Transportation Act, R.S.C. 1970, c. N-17, ss. 46(1)(a), 64(2) as am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 65 - Railway Act, R.S.C. 1970, c. R-2, ss. 196, 197, 198 - Railway Relocation and Crossing Act, S.C. 1974, c. 12, s. 16(2) - Canadian Transport Commission General Rules, C.R.C., c. 1142, ss. 21, 22, 29, 30, 31, 32, 49, 51, 53, 54, 55, 56, 57, 58-65.

Judicial review - Statutory appeals - National Transpor tation Act, s. 64(2) - Appeal against Order of Railway Transport Committee authorizing construction of railway crossing and subway - Commission requesting details of objections but none forthcoming - Order made without hear ing - No breach of natural justice - Order upheld National Transportation Act, R.S.C. 1970, c. N-17, s. 64(2) as am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 65.

Railways — Railway Transport Committee authorizing construction of temporary railway crossing and permanent subway — Application by Winnipeg opposed by citizens' group — Hearing requested by group — Group ignoring opportunity to state objections — Committee concluding grade separation required for safety, protection and convenience of public — Application to review and appeal from order rejected — Under Railway Act, s. 197(2) and Railway Relocation and Crossing Act, s. 16(2), Commission's role restricted to public's protec tion, safety and convenience — Appellant's private interest outside Commission's jurisdiction — Railway Act, R.S.C. 1970, c. R-2, s. 197(2) — Railway Relocation and Crossing Act, S.C. 1974, c. 12, s. 16(2).

An appeal under section 64(2) of the National Transporta tion Act from an Order of the Railway Transport Committee was joined with an application for judicial review under section 28 of the Federal Court Act. The City of Winnipeg applied to the Canadian Transport Commission for an Order permitting the construction of a temporary crossing and a permanent subway under the railway tracks. A citizens' group, for which appellant was spokesman, wrote to the Committee objecting to the project and requesting a hearing to elaborate its objections. The Committee replied that "Unless there are other substantial objections there can be no reason to delay or deny the City's request for proposed works." The citizens' group repeated the request for a hearing, but ignored the opportunity to state its objections. Subsequently, the President of the Commission recommended to the Minister of Transport that a construction grant be approved. He added that "Should a grant be approved, an Order would be issued by the Railway Transport Committee authorizing construction...." The Committee repeated its request for specific objections. Eighteen days later the impugned Order was made, no request to delay making the Order until submissions were completed or to any particular date having been received. The appellant contends that the Committee, having requested submissions from the City and the appellant failed to observe the audi alteram partem rule or breached its duty to act fairly when it made the Order without having heard from the appellant. It was further argued that the Committee breached the rules of natural justice by having considered and approved the City's application prior to the final request for submissions. This last submission was founded on an undated recommendation by the Committee that a grant of funds be authorized for construction of the underpass after a thorough assessment of the application. The recommendation concluded that the grade separation was required for the "safety, protection and convenience of the public".

Held (Heald J. dissenting), the section 28 application should be dismissed and on the appeal the Order of the Railway Transport Committee certified as valid.

Per Thurlow C.J.: The appellant's complaint that it was not afforded a reasonable opportunity to be heard has a hollow

ring. The appellant neither sent a statement of objections nor gave the Committee any reason to think it would do so after two requests by the Committee. The fact that the City's applications for construction and funding had been considered and approved prior to the final request for the appellant's submissions does not mean that the Committee had deprived itself of its capacity to consider fairly and give effect to any relevant objections. No formal order had been made and until such time it was open to the Committee to change its view. No rule of law or procedure requires that a tribunal defer consider ation of an application and formulation of its opinion on the chance that someone would intervene. Although the Committee warned that it would not delay or deny the City's request unless substantial objections were put forward, that does not mean that the Committee would not consider and give effect to any relevant objection that had persuasive force. Also, since the appellant did not put any basis for its objections before the Committee, the fact that the Committee had reached its con clusion, cannot be said to have had any effect in foreclosing the appellant's objections.

Per Lalande D.J.: Both section 197(2) of the Railway Act and section 16(2) of the Railway Relocation and Crossing Act refer the Commission to the "protection, safety and conve nience of the public". Thus the Commission's adjudicative role is restricted to the protection, safety and convenience of the public. If the appellant is affected in its private interest by the lowering of the level of the street, it is a matter between it and the City and outside the Commission's jurisdiction. Also, the Commission's second request for submissions was a reminder of its previous request, so that in assessing procedural fairness an extra seventeen days have to be taken into account. Given the opportunity the appellant had to make its submissions, the Commission did not breach its duty of fairness.

Per Heald J. (dissenting): By not making written submissions the appellant failed to comply with the Canadian Transport Commission General Rules relating to intervention. However Rule 49 empowers the Commission to dispense with any and all of the forms of proceedings. The Committee's second request for submissions was in effect an extension of time granted to the appellant to make further submissions. What transpired before that extension is not germane to the issue of whether the Committee, in making its decision ten working days after granting the extension was acting properly and within its jurisdiction. Ten working days is an unreasonably short period of time given that the appellant was but one of several busi nesses to be affected by changes, and acting through solicitors who had to be instructed before submissions could be prepared and submitted. Applying the test from The Committee for Justice and Liberty, et al. v. The National Energy Board, et al., [1978] 1 S.C.R. 369, reasonably well-informed persons could have a reasonable apprehension of bias in light of the fact that the Commissioners who made the Order under attack knew that the President of the Commission had indicated that a construction order would be issued should a funding grant be approved, and that such an order had been approved. Given this knowledge of the Commissioners, and the relatively short time given the appellant to make its submissions, the failure to wait for the appellant's submission was a serious breach of the rules of natural justice. The Railway Transport Committee should

have advised the appellant that its decision was going to be made on a certain date and that if it wished its submissions to be considered, they should be forwarded forthwith.

CASES JUDICIALLY CONSIDERED

APPLIED:

Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495; Gateway Packers 1968 Limited v. Burlington Northern (Manitoba) Limited et al., [1971] F.C. 359 (C.A.).

REFERRED TO:

Hoffman-La Roche Limited v. Delmar Chemical Lim ited, [1965] S.C.R. 575; Russell v. Duke of Norfolk and others, [1949] 1 All E.R. 109 (C.A.); Committee for Justice and Liberty, et al. v. The National Energy Board, et al., [ 1978] 1 S.C.R. 369.

COUNSEL:

W R. De Graves, Q.C. and Gavin Wood for appellant (applicant).

K. Margaret Bloodworth for respondent (respondent) Canadian Transport Commis sion.

W. R. Stovel for respondent (respondent) City of Winnipeg.

SOLICITORS:

Christie, De Graves, MacKay, Winnipeg, for appellant (applicant).

Legal Services, Canadian Transport Com mission, Saskatoon, for respondent (respond- ent) Canadian Transport Commission.

Legal Services, City of Winnipeg, Winnipeg, for respondent (respondent) City of Win- nipeg.

The following are the reasons for judgment rendered in English by

THURLOW C.J.: This is an appeal under subsec tion 64(2) of the National Transportation Act [R.S.C. 1970, c. N-17 as am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 65] from Order No. R-33625 of the Railway Transport Committee made on March 22, 1982. By order of the Court an application brought by the appellant under section 28 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] to review and set aside the same Order was

joined with the appeal and heard at the same time. The Order in question authorized the City of Winnipeg to construct a temporary crossing and - a permanent subway under Canadian National and Canadian Pacific tracks crossing King Edward Street in Winnipeg. The issue in both the appeal and the section 28 application is whether in making the Order the Committee failed to observe the principles of natural justice.

The City's applications for approval by the Commission of its projects were made on August 17, 1981 and October 22, 1981 following some months of discussions and several public meetings at which the appellant was represented and offered objections. It was not formally notified of the City's application to the Commission but learned of it on January 13, 1982, from a solicitor who informed the appellant and thereafter attended at the offices of the Commission and obtained copies of the applications. On January 26 the following letter was sent to the Railway Transport Commit tee by The Concerned Citizens of Vopni Avenue, an organization of which the appellant was a member.

Dear Sir:

Re: (1) Application for temporary at grade crossing at King Edward Street, across C.P. Carberry Subdivision, near Mile 3.6 and C.N. Oak Point Subdivision, near Mile 5.74;

(2) Application for proposed grade separation at the above location.

Your files nos. 27365.27 and 27367.1601

Please be advised that we represent good citizens and business people in the area of the above proposed undertaking.

Further be advised that we object to the project.

We would ask for a hearing, so that we would be in a position to expand on our objections.

We look forward to the setting up of same and await your advice as to time and date.

Yours truly,

To this the Committee responded on February 15, 1982 as follows:

Dear Sir:

Re: (1) Application for temporary at grade crossing at King Edward Street at Mileage 3.6 Carberry Subd. and mileage 5.74 Oak Point Subd.

(2) Application for temporary at grade crossing at the above location.

I refer to your letter dated January 26, 1982 and letter of February 2, 1982 from the City of Winnipeg (copy attached) regarding the above-noted matter.

You have not stated the nature of your objection to the City's proposed construction works, however it appears from the City's letter of February 2, 1982 that you objected to an initial plan by the City to sever direct vehicle access to and from Route 90 at the west end of Vopni Avenue.

It is noted that you were present at several meetings organized by the City in 1980 and '81 to discuss this problem, and indeed attended a meeting on March 5, 1981 at which the City presented an approved addition to the project of an ingress ramp from northbound on Route 90 to the west end of Vopni Avenue.

It appears therefore that the City has alleviated the concern which you held with respect to access to Vopni Avenue.

Unless there are other substantial objections there can be no reason to delay or deny the City's request for the proposed works.

Yours truly,

On the same date the Committee advised the City of the objection and asked for its comments. In the meantime, on February 1, 1982, the City Solicitor had written to the Committee asking that approval of the application be expedited and on February 2, 1982 the City's Manager of Streets and Traffic had written to the Committee describing steps taken by the City to notify the public of the project, the objections raised by The Concerned Citizens of Vopni Avenue and the proposal made in regard to them.

The Concerned Citizens of Vopni Avenue answered the Committee's letter on February 17, as follows:

Dear Mr. O'Hara;

Re: (1) Application for temporary at grade crossing at King Edward Street, across C.P. Carberry Subdivision, near Mile 3.6 and C.N. Oak Point Subdivision, near Mile 5.74;

(2) Application for proposed grade separation at the above location.

Your files nos. 27365.27 and 27367.1601

Thank you for your letter of February 15th, 1982, only recently received and contents noted.

The request for the hearing would be the arena in which we would like to state our objections related to the application referred to above.

We request that you set up the date and time for such a hearing, and we will plan to attend accordingly.

We look forward to that hearing.

Yours truly,

The City response was made on February 23, 1982. It read:

Dear Sir:

RE: Proposed Grade Separation, King Edward Street (Route 90)—Mile 5.74 C.N. Oak Point Subdivision and Mile 3.6 C.P. Carberry Subdivision—Your File No. 27365.27

Reference is made to your letter dated February 15, 1982 requesting the City's comments with respect to the letter dated January 26, 1982 forwarded to the Railway Transport Com mittee by Mr. A. Gillman on behalf of "The Concerned Citizens of Vopni Avenue".

Inasmuch as Mr. Gillman in his said letter of January 26, 1982 has not given any details as to why "The Concerned Citizens of Vopni Avenue" are opposed to the City's proposed grade separation, the City must assume the concerns of "The Con cerned Citizens of Vopni Avenue" are those previously enun ciated by Mr. Gillman before the Committee on Works and Oerations [sic] and other committees of the Winnipeg City Council.

These concerns, as you know, have already been fully addressed by the said committees and Council of the City of Winnipeg, as indicated in a letter dated February 2, 1982 from Mr. L.R. Campbell, the City's Manager of Streets and Traffic, to Mr. G.P. Beach, Chief, Rail Crossing & Construction Programs, of your Winnipeg office.

Please advise if any further information respecting this matter

might be required by your Committee.

Yours truly,

On March 4, 1982 the Railway Committee wrote to both the City Solicitor and Mr. Gillman of The Concerned Citizens of Vopni Avenue, saying:

Dear Sirs:

Re: Application for temporary at grade crossing at King Edward Street at Mileage 3.6 Carberry Subdivision and Mileage 5.74 Oak Point Subd.

Application for proposed grade separation at the above location

Receipt of the letter dated February 23, 1982 from the City of Winnipeg and letter dated February 17, 1982 from Mr. Gillman—Spokesman for "The Concerned Citizens of Vopni Avenue" in connection with the above project is acknowledged.

It is noted that Mr. Gillman has still not indicated the nature of his opposition to the City's proposal. Our letter of February 15, 1982 was intended to elicit the specific nature of any other substantial objection he may have. We again request Mr. Gillman to state what his objections are.

Attached to Mr. Gillman's letter is a copy of the City's letter of February 23, and to the City's letter, a copy of Mr. Gill- man's letter of February 17, 1982.

Both parties are requested to make their further submissions.

Yours truly,

The City Solicitor replied on March 12, as follows:

Dear Sir:

RE: Proposed Grade Separation, King Edward Street (Route 90)—Mile 5.74 C.N. Oak Point Subdivision and Mile 3.6 C.P. Carberry Subdivision

Reference is made to your letter dated March 4, 1982 enclosing a copy of Mr. Gilman's (sic) letter of February 17, 1982 and requesting the City's submission in regard thereto.

Inasmuch as Mr. Gilman's (sic) said letter adds nothing more to what was stated by Mr. Gilman (sic) in his earlier letter of January 26, 1982 and to which the City has already responded vide its letter to you dated February 23, 1982, the City has no further submission to make in this matter at this time.

The approval by the Railway Transport Committee of this grade separation is a matter of great urgency to the City and once again the City, respectfully submits, that this application be dealt with by your Committee as expeditiously as possible.

Yours truly,

Mr. Gillman had not replied when on March 22 the Order under appeal was made. It was said that a submission was being prepared but no request to the Committee to withhold making an order until the submission had been completed and forwarded or for any particular time had been made.

In its memorandum of argument in this Court, two submissions were made on behalf of the appel lant. The first was that the Railway Committee, having asked for submissions from the City and the Concerned Citizens on March 4, 1982, had failed to observe the audi alteram partem rule and

to act in good faith and fairly listen to both sides when, on March 22, 1982, it proceeded to make the Order without having heard from the appellant or received its submission. The second was that by not affording the appellant an opportunity to be heard after such an opportunity had been request ed, the Committee breached the rules of natural justice or, at the very least, breached its duty to act fairly towards the appellant and accordingly exceeded its jurisdiction.

It will not be inappropriate to refer at this point to what was said of the Canadian Transport Com mission by Jackett C.J. in Gateway Packers 1968 Limited v. Burlington Northern (Manitoba) Lim ited et al.:'

In the first place, I am of opinion that Gateway is not entitled to anything that is not assured to it expressly or impliedly by the Commission's Rules. It is to be remembered that this is an administrative court of record with a very large volume of business and with a set of rules that have been carefully devised. Courts operate on the basis that the rules afford a complete opportunity to every party to obtain justice, but such rules leave it to the parties to look after their own interests. If a party wants to know what has gone on on the Court file, it can search the file. If it wants documents, it can take the necessary steps. If it wants a hearing, it can apply for a hearing. This is the position of a party under the Commission's Rules. Each party puts in its initial documents with supporting documents. If it is content with that, it can rest on its oars. If it thinks that there is something else to be watched for or to be added, it can take the appropriate steps under the Rules. In this case, Gateway, represented by competent solicitors, was appar ently content with its initial step. It failed to avail itself of the other steps that it could have taken and it cannot now complain of having been deprived of a fair hearing.

Under the Rules [Canadian Transport Com mission General Rules, C.R.C., c. 1142] the appellant and The Concerned Citizens of Vopni Avenue were not parties to the City's applications and were not entitled to notice of them unless the Committee so ordered. But, as persons whose in terests might be affected by the proposed construc tion, they were entitled to intervene in the applica tions by sending to the Secretary and serving on the applicant and other parties a written statement describing their interests and their objections to the project. Had the appellant filed such a state ment, at a later stage when the issues had become

' [1971] F.C. 359 (C.A.), at p. 376.

defined, a hearing might have been ordered either of the Committee's own motion or at the request of a party. There was, however, no obligation on the Committee to arrange or hold an oral hearing of the applications at the request of an intervenant.

Instead of following the procedure contemplated by the Rules what the Concerned Citizens did on hearing of the applications was to send to the Secretary of the Committee the letter of January 26, 1982 which told the Committee nothing either of their particular interests or of what their objec tions were, but simply asked for a hearing "so that we would be in a position to expand on our objec tions". And although the Committee's response of February 15, 1982 ended with the paragraph saying "Unless there are other substantial objec tions there can be no reason to delay or deny the City's request for the proposed works", the Con cerned Citizens, in their letter of February 17, 1982, ignored the opportunity to state their objec tions and merely reiterated their request for a hearing thus, as it seems to me, seeking to insist on a procedure not provided by the Rules.

On March 4, 1982 the Committee again requested the Concerned Citizens, and Mr. Gill- man in particular as their spokesman, to state their objections and asked both Mr. Gillman and the City to make their further submissions. The City responded on the 12th of March but, though more than two weeks elapsed from the date of the Committee's letter until March 22, when the Order was made, no statement of objections or submissions was sent to the Secretary by the appellant or the Concerned Citizens nor did they give the Committee any indication whatever that such a statement was being prepared and would be sent. In this situation, the appellant's complaint that it and the other concerned citizens were not afforded a reasonable opportunity to be heard, in my opinion, has a hollow ring. They had been warned by the Committee's letter of February 15 that unless there were substantial objections there could be no reason to delay or deny the City's request for the proposed works and even after the letter of March 4 they had had two weeks to present their substantial reasons, if there were any.

Yet in that time they neither sent in a statement of their objections nor gave the Committee any reason to think they would do so either by telling the Committee that such a statement was being prepared or by asking what time would be allowed to send in such a statement. In my view their submission that the Committee failed to give them a fair opportunity to be heard and thus failed to observe the principles of natural justice and the duty of fairness should not be sustained.

A further point, however, was raised during the argument. The point, as I understood it, was that the appellant and the Concerned Citizens had been denied natural justice because the evidence showed that before sending the letter of March 4, 1982, the Committee had already considered the City's applications and decided to grant them and had thus foreclosed any effective submission or objec tion the appellant and the Concerned Citizens might have had.

The evidence relied on by the appellant consists of an undated summary and recommendation signed by two members of the Railway Committee and a letter written by the President of the Canadian Transport Commission dated February 23, 1982 to the Minister of Transport. At some point after filing the applications under the Rail way Act [R.S.C. 1970, c. R-2] which resulted in the Order under attack, the City had applied to the Commission under section 16 of the Railway Relocation and Crossing Act e for a grant of funds to meet part of the costs of constructing the under pass. By subsection 16(2) of that Act:

16....

(2) Where an application is made under subsection (1), the Commission may inquire into the proposed construction or reconstruction of the grade separation and if it is satisfied that the protection, safety and convenience of the public require the construction or reconstruction of the grade separation or that the protection, safety and convenience of the public will be significantly increased by such construction or reconstruction, it may recommend to the Minister of Transport that a special grant be obtained for the purpose of meeting part of the costs thereof.

2 S.C. 1974, c. 12.

The summary and recommendation of the Com mittee, after outlining the project, stated in the terms of subsection 16(2) that:

The City of Winnipeg in its application has complied with the requirements of Section 16 of the Railway Relocation and Crossing Act. The Railway Transport Committee has thor oughly assessed the application and is satisfied that the grade separation is required for the safety, protection and convenience of the public.

and went on to recommend that a grant be author ized towards the cost of the work.

The President's letter read:

Dear Mr. Pepin:

The City of Winnipeg in the Province of Manitoba has applied by letter of October 22, 1981 for authority to construct two subways to carry King Edward Street across and under the tracks of Canadian Pacific Limited at Mileage 3.6 Carberry Subdivision and Canadian National Railway Company at mile age 5.74 Oak Point Subdivision, and for a grant towards the cost of construction under Section 16 of the Railway Reloca tion and Crossing Act. Details of the application are enclosed.

The City in its application has complied with all the require ments of Section 16 of the Railway Relocation and Crossing Act. The Commission having assessed the application, and being satisfied that the construction of the grade separation is required for the protection, safety and convenience of the public, now recommends that a grant be authorized towards the cost of the work.

Should a grant be approved, an Order would be issued by the Railway Transport Committee authorizing construction of the subways.

Yours sincerely,

I see no reason to doubt that by the time the letter was written the Railway Committee had considered the City's applications both under the Railway Act for the approval of construction of the temporary crossing and underpass and under the Railway Relocation and Crossing Act for the grant of funds and had reached a conclusion, whether tentative or final, that the statutory requirements both of section 198 of the Railway Act and section 16 of the Railway Relocation and Crossing Act respecting protection, safety and con venience of the public had been met and that the Committee's approval of the construction should be given. But, in my opinion, it does not follow

either that the Committee had thereby deprived itself of its capacity to consider fairly and give effect to any relevant or substantial objection that might thereafter be taken to the making of an approving Order or that the appellant or the Con cerned Citizens were thereby prejudiced or deprived of any procedural or other right they had.

There are two reasons for this view. First, the formal Order had not been made and until it was made it was always open to the Committee to change its view and to change or vary the conclu sion it had reached. In my view, it is not conceiv able that such a tribunal having the City's applica tion before it would, from October 22, 1981 to January 26, 1982, have been deferring consider ation of it on the chance that someone would intervene and object and I know of no rule of law or procedure which would have required the Com mittee to defer its consideration and the formula tion of its opinion on the chance that someone might file an intervention. If that were the rule, the Committee's capacity to carry out its functions would be paralyzed. It was within the authority of the Committee under Rule 21 3 to decide who should be notified of the applications and there had been no order made requiring service on anyone or requiring any public notice of either of them. It is I think to be assumed that the Commit tee, in view of what had occurred since the project was first publicly announced, considered that there was no need for notice to individuals or to the public of the applications for its approval of the construction and it is, therefore, not surprising that the Committee's letter of February 15, 1982, to the Concerned Citizens should indicate as it does that a conclusion had been reached and that unless there were substantial objections other than those referred to in the letter there should be no reason to delay or deny the City's request. That, however,

3 21. The Commission may in any case give or cause to be given such public or other notice of an application as to it appears to be reasonable, and where such direction is given, the applicant shall file with the Secretary proof that notice of the application has been given as directed.

was far from saying that the Committee would not consider and give effect to any relevant objection that had persuasive force. There is, in my view, no reason to believe that the Committee would not have dealt fairly with and given due effect even at that stage to any relevant and substantial objection had one been raised by the appellant or the Con cerned Citizens.

The other reason is that the fact that the Com mittee had by February 23, 1982, already reached its conclusion on such material as was before it cannot be said to have had any effect in foreclos ing any objection the Concerned Citizens had since no basis for any objection by them was ever put before the Committee.

In my opinion, therefore, the submission fails.

I would dismiss the application under section 28 of the Federal Court Act and on the appeal I would certify to the Canadian Transport Commis sion that in the opinion of the Court Order No. R-33625 of the Railway Transport Committee is valid.

* * *

The following are the reasons for judgment rendered in English by

HEALD J. (dissenting): This is an appeal pursu ant to leave given by this Court under the provi sions of subsection 64(2) of the National Trans portation Act from Order No. R-33625 dated March 22, 1982, of the Railway Transport Com mittee of the Canadian Transport Commission (R.T.C.). The Court also ordered that said appeal, once commenced be joined with the appellant's section 28 application (No. A-259-82) and that the two proceedings should thereafter be continued as a single proceeding.

The relevant facts follow. On August 17, 1981, the respondent City applied to the Canadian Transport Commission for an order permitting a temporary crossing at the grade crossing of King Edward Street in the City of Winnipeg where that street intersects with Vopni Avenue. Said grade crossing traverses both C.P.R. and C.N.R. tracks at that location. On October 22, 1981, the respondent City also applied for an order permit ting the construction of a grade separation at the same location. The purpose of the grade separation

was to permit the construction of two railway bridges over a four-lane underpass at that intersec tion. This construction was said by the respondent City to be necessary to alleviate severe traffic tie-ups caused by increasing traffic volumes and heavy use of the existing level crossing by both railroads.

The "Concerned Citizens of Vopni Avenue" (hereinafter the Citizens' Committee) was formed to consider and deal with the proposed underpass. The applicant is a member of the Citizens' Com mittee, owning and occupying land and buildings at the intersection of Vopni Avenue and King Edward Street where he carries on, inter alia, an auto recycling business. The other members of the Citizens' Committee own and operate businesses along Vopni Avenue in the area of the proposed temporary at grade crossing and the proposed grade separation. On January 26, 1982, the Execu tive Committee for the Citizens' Committee wrote to the Secretary of the R.T.C. in Ottawa advising that the Citizens' Committee opposed these projects and stating:

We would ask for a hearing, so that we would be in a position to expand on our objections.

On February 15, 1982, the R.T.C. Secretary wrote to the respondent City advising it of the objections of the Citizens' Committee, enclosing a copy of the January 26, 1982 letter from the Citizens' Com mittee and requesting the City's comments on the Committee's opposition. Also, on February 15, 1982, the R.T.C. Secretary wrote to the Citizens' Committee and the relevant portions of that letter read as follows (A.B. p. 122):

It appears therefore that the City has alleviated the concern which you held with respect to access to Vopni Avenue. Unless there are other substantial objections there can be no reason to delay or deny the City's request for the proposed works.

On February 17, 1982, the Citizens' Committee replied to the Secretary of the R.T.C. as follows (A.B. p. 124):

The request for the hearing would be the arena in which we would like to state our objections related to the application referred to above.

We request that you set up the date and time for such a hearing, and we will plan to attend accordingly.

We look forward to that hearing.

On February 23, 1982, the President of the Canadian Transport Commission wrote to the Minister of Transport Canada as follows (A.B. p. 125):

Should a grant be approved, an Order would be issued by the Railway Transport Committee authorizing construction of the subways.

On March 4, 1982, the R.T.C. sent a letter to both the respondent City and the Citizens' Committee. That letter reads as follows (A.B. p. 129):

Attached to Mr. Gillman's letter is a copy of the City's letter of February 23, and to the City's letter, a copy of Mr. Gill- man's letter of February 17, 1982.

Both parties are requested to make their further submissions.

The respondent City replied to the March 4, 1982 letter under date of March 12, 1982 stating there in (A.B. p. 133):

The Citizens' Committee did not reply. The R.T.C. then issued the Order herein impugned on March 22, 1982.

It is the applicant's submission that the R.T.C. acted without jurisdiction or exceeded its jurisdic tion because it did not allow ".. . the appellant an opportunity to be heard thereby (a) denying it natural justice and (b) breaching its duty of fair practice." (See page 5, appellant's memorandum of points of argument.)

As I understood his submissions, counsel for the applicant alleged a denial of natural justice and a breach of procedural fairness on a two-fold basis. His first submission may be summarized as fol lows. The R.T.C. was made aware generally of the objections of the Citizens' Committee to the two applications of the respondent City through the Committee's letter to the R.T.C. dated January 26, 1982. The R.T.C.'s letter of February 15, 1982 was tantamount to an invitation to the Committee to present any "other substantial objections" to the City's applications. The Committee in its reply of February 17, 1982 asked for a hearing at which the Committee would amplify its concerns and objections. The R.T.C. by its letter of March 4, 1982 to the Citizens' Committee requested further submissions. While the submissions of the Citi zens' Committee were being prepared by its solici tors and before a reasonable length of time had passed, the R.T.C. made the impugned Order of March 22, 1982. Practical realities establish the following time-frame. Since the request for sub missions was sent by the R.T.C. from Ottawa on March 4, 1982, a Thursday, in the normal course of post, that letter would not have been received in Winnipeg before Monday, March 8, 1982. Since the date of the Order was March 22, 1982, a Monday, the result of such a short time delay was that the applicant and the Committee were only afforded ten office working days within which to have their solicitors prepare and submit their writ-

ten submissions to the R.T.C. in Ottawa. It is the view of the applicant and the Citizens' Committee that the conduct of the R.T.C. in deciding to seek submissions, in requesting those submissions and then proceeding to issue its Order without allowing them a reasonable period of time within which to file their submissions and without having the ben efit of those submissions before making its decision was in breach of the Commission's obligation to act in good faith and fairly listen to both sides.

The response of the respondent City was to the effect that the applicant was not entitled as of right to an oral hearing and in support of its position made reference to the decision in the Supreme Court of Canada in the case of Hoff- man-La Roche Limited v. Delmar Chemical Limited." That was a case involving a decision by the Commissioner of Patents granting a licence to the respondent to use, for the purpose of produc tion of certain medicine, an invention patented by the appellant. Martland J. in writing the judgment of the Court held that since there were no regula tions governing the practice under the relevant section of the statute, the Commissioner was en titled to set the procedures and was not bound to hold an oral hearing, to permit cross-examinations on affidavits or to permit oral argument. However, notwithstanding this finding, it is interesting to note that Mr. Justice Martland, in referring to the facts of that case, did observe that the Commis sioner had required the respondent to serve the appellant with a copy of the application and sup porting affidavit and that he had given the appel lant "... ample opportunity to present its case in writing, and the appellant did make written sub missions to the Commissioner." [Emphasis added.]

Thus, the Hoffman-La Roche case (supra) has significant factual differences from the case at bar. It is the essence of the applicant's complaint that, while he had been invited by the R.T.C. to make written submissions, he was only given what, from the practical point of view, amounted to ten work ing days within which to make those submissions. I note in passing that the Commissioner in the Hoffman-La Roche case (supra) originally gave the appellant sixty days to make his submissions

4 [1965] S.C.R. 575, at p. 581.

and later granted a further extension of two months.

In order to assess the validity of the applicant's initial submission, I think it necessary to consider the statutory scheme upon which the subject applications are based. The C.T.C. and through it, the R.T.C. derive their jurisdiction to make the Orders herein attacked pursuant to the provisions of paragraph 46(1)(a) of the National Transpor tation Act, R.S.C. 1970, c. N-17, which reads as follows:

46. (1) The Commission may make orders or regulations

(a) with respect to any matter, act or thing that by the Railway Act or the Special Act is sanctioned, required to be done, or prohibited;

The applications herein under review are clearly "matters" that are "sanctioned" pursuant to the provisions of sections 196 to 198 inclusive of the Railway Act, R.S.C. 1970, c. R-2. Those sections read as follows:

196. (1) The railway of the company may, if leave therefor is first obtained from the Commission as hereinafter authorized, but shall not without such leave, be carried upon, along or across any existing highway; the compensation, if any, payable by the company to adjacent or abutting landowners shall be determined under the arbitration sections of this Act in so far as such sections are applicable, and the Commission shall not grant leave to any company to carry any street railway or tramway, or any railway operated or to be operated as a street railway or tramway, along any highway that is within the limits of any city or incorporated town, until the company has first obtained the consent therefor by a by-law of the municipal authority of such city or incorporated town; and where leave is obtained to carry any railway along a highway the Commission may require the company to make compensation to the munici pality if the Commission deems proper, such compensation to be determined under the arbitration sections of this Act, in so far as such sections are applicable.

(2) The company shall, before obstructing any such highway by its works, turn the highway so as to leave an open and good passage for carriages, and, on completion of the works, restore the highway to as good a condition as nearly as possible as it originally had.

(3) Nothing in this section deprives any such company of rights conferred upon it by any Special Act of the Parliament of Canada, or amendment thereof, passed prior to the 12th day of March 1903.

197. (1) Upon any application for leave to construct a rail way upon, along or across any highway, or to construct a

highway along or across any railway, the applicant shall submit to the Commission a plan and profile showing the portion of the railway and highway affected.

(2) The Commission may, by order, grant such application in whole or in part and upon such terms and conditions as to protection, safety and convenience of the public as the Commis sion deems expedient, or may order that the railway be carried over, under or along the highway, or that the highway be carried over, under or along the railway, or that the railway or highway be temporarily or permanently diverted, or that such other work be executed, watchmen or other persons employed, or measures taken as under the circumstances appear to the Commission best adapted to remove or diminish the danger or obstruction, in the opinion of the Commission, arising or likely to arise in respect of the granting of the application in whole or in part in connection with the crossing applied for, or arising or likely to arise in respect thereof in connection with any existing crossing.

(3) When the application is for the construction of the railway, upon, along or across a highway, all the provisions of law at such time applicable to the taking of land by the company, to its valuation and sale and conveyance to the company, and to the compensation therefor, including compen sation to be paid to adjacent or abutting landowners as pro vided by section 196, apply to the land exclusive of the highway crossing, required for the proper carrying out of any order made by the Commission.

(4) The Commission may exercise supervision in the con struction of any work ordered by it under this section, or may give directions respecting such supervision.

(5) When the Commission orders the railway to be carried over or under the highway, or the highway to be carried over or under the railway, or any diversion temporarily or permanently of the railway or the highway, or any works to be executed under this section, the Commission may direct that detailed plans, profiles, drawings and specifications be submitted to the Commission.

(6) The Commission may make regulations respecting the plans, profiles, drawings and specifications required to be sub mitted under this section.

198. (1) Where a railway is already constructed upon, along or across any highway, the Commission may, of its own motion or upon complaint or application, by or on behalf of the Crown, or any municipal or other corporation, or any person aggrieved, order the company to submit to the Commission, within a specified time, a plan and profile of such portion of the railway, and may cause inspection of such portion, and may inquire into and determine all matters and things in respect of such portion, and the crossing, if any, and may make such order as to the protection, safety and convenience of the public as it deems expedient, or may order that the railway be carried over, under or along the highway, or that the highway be carried over, under or along the railway, or that the railway or highway be temporarily or permanently diverted, and that such other work be executed, watchmen or other persons employed, or measures

taken as under the circumstances appear to the Commission best adapted to remove or diminish the danger or obstruction in the opinion of the Commission arising or likely to arise in respect of such portion or crossing, if any, or any other crossing directly or indirectly affected.

(2) When the Commission of its own motion, or upon complaint or application, makes any order that a railway be carried across or along a highway, or that a railway be diverted, all the provisions of law at such time applicable to the taking of land by the company, to its valuation and sale and conveyance to the company, and to the compensation therefor, apply to the land, exclusive of the highway crossing, required for the proper carrying out of any order made by the Commission.

(3) The Commission may exercise supervision in the con struction of any work ordered by it under this section, or may give directions respecting such supervision.

The procedure to be followed by the C.T.C. and the R.T.C. is set out in the Canadian Transport Commission General Rules (c. 1142 of the Con solidated Regulations of Canada, 1978). Rule 21 empowers the Commission to give "... such public or other notice of an application as to it appears to be reasonable...". In the case at bar, the record before us does not establish that any public notice of application was given. However, this applicant did learn of subject applications in due course and made his interest in and objection to the orders being sought known to the Commission. Counsel for the respondent City submitted that the appli cant herein had the status of an intervener and that the Commission, in accordance with the Gen eral Rules, requested submissions from the appli cant, and since the applicant initially failed to conform with this request, the Commission was entitled to issue the Orders without further refer ence to the applicant. I agree that the applicant did not comply with the General Rules which relate to intervention. These Rules are numbers 29 to 32 inclusive and read as follows:

29. Any person interested in an application to which he is not a party may intervene in order to support, oppose or modify the application.

30. An intervener shall mail or deliver to the Secretary a written statement describing his interest and containing his

approval of the application, his opposition thereto or his sug gested modification thereof, together with any documents that may be useful in explaining or supporting the intervention, and he shall also serve a copy of the intervention and documents upon the applicant and upon the respondent, if any, or upon their respective solicitor and such other persons as the Commis sion may direct.

31. An intervention shall be divided into paragraphs, num bered consecutively; it shall be signed by the person making it, or his solicitor; it shall be endorsed with the name and address of the intervener or the solicitor acting for him in the matter, and with notice as to service or reply as set forth in the form of endorsement given in Schedule II.

32. An intervention shall not be filed without leave of the Commission after the expiration of 30 days from the date of the first publication of notice of the application or of such other period as may be stated in the notice.

However, I observe that General Rule 49 empow ers the Commission to dispense with any and all of the forms of proceedings detailed in the Rules. That Rule reads as follows:

49. In any proceedings, the Commission may dispense with the form of proceedings herein mentioned, or some portion thereof.

It is true that the first invitation by the R.T.C. for submissions was on February 15, 1982 and that by a letter of February 17, 1982, that request was not complied with since the applicant and the Citizens' Committee were still trying to obtain an oral hearing. However, when the R.T.C. wrote its letter of March 4, 1982 still requesting further submis sions, this was, in my view, in effect an extension of time granted to the applicant to make further submissions. 5 What went on before that extension is not, in my opinion, particularly germane to the issue of whether the Committee, in making its decision ten working days after granting that extension was acting properly and within its juris diction. The applicant was only one of several businesses which operated establishments in the vicinity of subject intersection and whose busi nesses were likely to be affected by the proposed construction. They were acting through solicitors in the matter of opposing these applications. Ten working days is not long for the receipt of instruc tions and the preparation and transmission of sub

s Rule 32 respecting the time for filing an intervention cannot apply on the facts of this case since, on this record, there is no evidence of publication of the notice of application.

missions to the R.T.C. In my respectful view, it is an unreasonably short period of time in all the circumstances of this case. 6 Lord Tucker in the case of Russell v. Duke of Norfolk and others' said:

There are, in my view, no words which are of universal applica tion to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.

The second submission made by applicant's coun sel that the R.T.C. breached the rules of natural justice and procedural fairness relates to the letter from the President of the C.T.C. to the Minister of Transport on February 23, 1982. At the bottom of that letter below the signature of Mr. Benson appear a number of initials together with the date "82/ 2 / 1 7". At the hearing before us, counsel agreed that two of the sets of initials were those of John Magee and B. R. Wolfe, the two members of the Railway Transport Committee who made the decisions herein attacked. Thus it seems clear that well before the letter of March 4, 1982 which invited submissions from the applicant, the Com missioners who made the Orders of March 22, 1982 were made aware of Mr. Benson's letter of February 23, 1982 in which he stated, inter alia:

Should a grant be approved, an Order would be issued by the Railway Transport Committee authorizing construction of the subways. [Underlining is mine.]

Accordingly, they were aware that the President of the Commission had made a commitment that, provided the Urban Transit Assistance Plan grant from the Government of Canada was forthcoming, the R.T.C. would issue the Orders which it did in fact issue on March 22, 1982. It is not without

6 While as stated supra Rule 32 does not apply to the facts of this case, it should be noted that in cases where it does apply, a period of 30 days is allowed for filing an intervention. It is also significant, in my view, that Rule 22 provides, in normal circumstances, for a period of 30 days for parties adverse in interest to respond to a notice of application.

7 [1949] I All E.R. 109 (C.A.), at p. 118.

significance, in my view, that the Minister of Transport advised the President of the C.T.C. on March 12, 1982 as follows:

This is my agreement that this project which is included in Manitoba's 1981/82 UTAP list has federal approval. Actual transfer of Federal payments towards the project cannot be made until the project contribution arrangements between the applicant and the Federal Government is executed. The C.T.C. is hereby requested to issue a construction order for this project.

Thus the condition precedent referred to by the President of the C.T.C. had been met by March 12, 1982. Then, on March 22, 1982, the impugned Orders are made by the two Commissioners of the R.T.C. who ` were aware of the President's commitment.

The test set out in the reasons of Laskin C.J. for the majority of the Supreme Court of Canada in the case of The Committee for Justice and Liber ty, et al. v. The National Energy Board, et al. 8 have application, in my view, to the situation here. In that case, the Chief Justice held that where there is a concern that there be no prejudgment and no predetermination of issues in the decision in question and where the participation of a cer tain individual in that decision "... cannot but give rise to a reasonable apprehension, which rea sonably well-informed persons could properly have, of a biased appraisal and judgment of the issues to be determined ..." such a situation meets the test of reasonable apprehension of bias. Also, on page 391 of the report, the Chief Justice goes on to say: "This test is grounded in a firm concern that there be no lack of public confidence in the impartiality of adjudicative agencies, and I think that emphasis is lent to this concern in the present case by the fact that the National Energy Board is enjoined to have regard for the public interest." 9

Applying this test to the facts of the instant case, I conclude that reasonably well-informed persons could have a reasonable apprehension of bias, given the exchange of correspondence be tween the President of the C.T.C. and the Minister

8 [1978] 1 S.C.R. 369, at p. 391.

9 I note in passing that in the case at bar as well, the Commission is enjoined by the relevant statutory provisions to have regard "... to protection, safety and convenience of the public ...". Vide: Subsections 197(2) and 198(1).

of Transport on February 23, 1982 and March 12, 1982 and given the state of knowledge of this situation by the two R.T.C. Commissioners who made the Order herein under attack. This case is similar to the Committee for Justice case (supra) in that here, as in that case, there is no evidence or suggestion of possible gain or loss on the part of the deciding Commissioners. That would likely be a case of actual bias and there is no such sugges tion in this case. However, as pointed out by Chief Justice Laskin, at page 387 of his reasons, nothing turns on the issue of actual bias.

I turn now to the question as to whether the ratio of the majority in the Committee for Justice case (supra) applies to the case at bar since the Committee for Justice case (supra) was premised on the proposition that the National Energy Board dealing with an application under section 44 of the National Energy Board Act [R.S.C. 1970, c. N-6] was performing a quasi-judicial function or, at least a function which it must discharge in accord ance with rules of natural justice to a degree that would reflect integrity of its proceedings and impartiality in the conduct of those proceedings. t°

Based on the criteria enunciated by Dickson J. in the case of The Minister of National Revenue v. Coopers and Lybrand," it is my view that the R.T.C. was performing at least a function which required adherence to the rules of natural justice to the extent that the integrity of its proceedings and impartiality in the conduct of those proceed ings would be preserved. While the statutory scheme does not require an oral hearing, it does provide for public notices and notices to parties adverse in interest. The Rules of the Commission provide in some detail the procedure relating to the filing of answers by parties adverse in interest and the filing of interventions by "Any person interest ed in an application to which he is not a party ...". The decision or Order by the R.T.C. also affects directly or indirectly the rights and obligations of persons. The C.N.R. and C.P.R. are directly affected. Persons in the position of the

10 The above test is taken from the comments of Laskin C.J.

at page 385 of the judgment.

" [1979] 1 S.C.R. 495, at p. 504 and pp. 506-507.

applicant and the Citizens' Committee, since they operate businesses in the immediate area are also affected since access to their places of business is going to be substantially altered. Members of the public using the present level crossing and custom ers of the businesses in the area will also be affected. It can also be said, in my opinion, that the adversary process is involved since "curial procedural rules" are imposed by the Commis sion's General Rules.

Rule 51 empowers the Commission to stay the proceedings before it where, in the Commission's opinion, a preliminary question of law should be determined. Rule 53 empowers the Commission to direct the holding of a "pre-hearing conference" which is remarkably similar to the pre-trial confer ences authorized in the rules of most superior courts. Rule 54 provides for the production and inspection of documents while Rules 55 and 56 provide for notices to produce and notices to admit documents. Rule 57 empowers the Commission to subpoena witnesses. Rules 58 to 65 inclusive set out the hearing procedures in cases where the Commission has ordered a hearing. Because of the detailed procedure established under the Rules, it is my view that these Rules are substantive rules required to be observed in the individual cases coming before the Commission.

It seems to me that when the relatively short time interval given to the applicant to prepare and file its submissions is considered in the context of the knowledge of the deciding Commissioners as to the situation existing between the C.T.C., the Min istry of Transport and the City of Winnipeg to the effect that since the grant had been approved, the only remaining obstacle to the commencement of the project was R.T.C. approval, the actions of the R.T.C. in proceeding to make its decision without waiting for the applicant's submission represents an even more serious breach of the rules of natural justice and procedural fairness. If time was so pressing having regard to all of the other circum stances surrounding the applications, I would have thought it reasonable for the R.T.C. to advise the applicant before the decision was made that it was going to be made on a certain date and that if the applicant wished its submissions to be considered

before the decision was made, they should be forwarded forthwith. However, this was not done.

Accordingly, and for the reasons detailed supra, I would allow the appeal and certify to the Canadian Transport Commission that in the opin ion of the Court, Order No. R-33625 of the Rail way Transport Committee has no validity. Pursu ant to section 29 of the Federal Court Act, I would dismiss the application under section 28 of that Act.

* *

The following are the reasons for judgment rendered in English by

LALANDE D.J.: I have read the reasons for judgment prepared by Mr. Justice Heald but do not agree with his view of this case.

The Order under attack granted an application by the City of Winnipeg for the construction of an underpass at the level crossing of King Edward Street over the C.N. and C.P. tracks. The appel lant's business and property are located at or near the intersections of King Edward Street, Vopni Avenue and Route 90 just north of the crossing and obviously would be affected by the depressing of King Edward Street under the proposed railway bridges over the widened highway. This was part of a street improvement project from a point just south of the tracks northbound for some two miles.

By subsection 197(2) of the Railway Act (R.S.C. 1970, c. R-2) the Canadian Transport Commission could grant the application "... upon such terms and conditions as to protection, safety and convenience of the public as [it] deem[ed] expedient ...."

To pay for a substantial part of the cost of this grade separation the Province of Manitoba on behalf of the City made application to the Corn- mission for a special grant under the Railway Relocation and Crossing Act [S.C. 1974, c. 12]. The grant had to be authorized by the Minister of Transport and by subsection 16(2) the Commis sion could recommend the special grant to the

Minister "... if it [were] satisfied that the protec tion, safety and convenience of the public require[d] the construction ... of the grade sepa ration or that the protection, safety and conve nience of the public [would] be significantly increased by such construction ...."

Within these powers I do not see that the Com mission has an adjudicative role in respect of any matter that is not relatable to the protection, safety and convenience of the public using the crossing. If the appellant is affected in its private interest by the lowering of the level of King Edward Street, it is a matter between it and the City and outside the Commission's jurisdiction.

Beginning in November, 1980 the City gave the appellant and others ample opportunity to make known their views and to voice their opposition to the project. All of this was reported to the Com mission by the City on February 2, 1982 in the following letter:

Dear Sir:

RE: Notification by the City of Winnipeg of Contemplation and Conduct of the 1981 Capital Project—"Route 90— Pacific Avenue to ... Inkster Boulevard", and Hearing of Reaction Thereto.

The City of Winnipeg caused the delivery in the period Novem- ber 21 to 25, 1980 of a written notice concerning the above project (see copy attached) to all of the businesses (among others) located along Vopni Avenue between King Edward Street (also commonly known as Route 90), and Keewatin Street in the City of Winnipeg, in conformance with the policy of the Council of The City of Winnipeg concerning such matters.

In response thereto, Mr. A. Gillman, whom the record shows to have been the principal spokesman for the association which he has referred to as "the Concerned Citizens of Vopni Avenue", and claims includes most or all of the businesses located along Vopni Avenue, on December 9, 1980 appeared before both the St. James-Assiniboia Community Committee and the Lord Selkirk-West Kildonan Community Committee. Undoubtedly, in consequence of advice given and/or observations made by Mr. Gillman in his appearance before said Community Com mittees, Mr. Gillman next appeared before the Committee on Works and Operations on December 15, 1980 and presented a brief on behalf of the above identified association which focused upon the proposed reverence of direct vehicle access to/from Route 90 at the west end of Vopni Avenue, inherent in the grade separation of Route 90 at the CNR (Oakpoint Subdivision) and CPR (Carberry Subdivision) included in the project in the form then recommended. In response to instruc tion by the Committee on Works and Operations, the Adminis tration prepared a report on alternatives which was presented

to the Committee on Works and Operations on January 26, 1981 at which Mr. A. Gillman was present. No decision was then taken on the matter. On February 9, 1981, Mr. Gillman appeared before the Committee on Works and Operations and presented the position of the Concerned Citizens of Vopni Avenue regarding the alternatives identified and discussed in the report from the Administration on the subject of access to/from Route 90 at the west end of Vopni Avenue.

The Committee on Works and Operations on February 9, 1981, resolved to recommend the addition to this project of an ingress ramp from northbound on Route 90 to the west end of Vopni Avenue, which was subsequently approved by the Council of the City of Winnipeg on February 18, 1981.

The City of Winnipeg next caused the delivery on February 27, 1981, of a written notice (see copy attached) of a meeting to discuss the staging of construction for stage 1 of the project, being part of the project north of and physically separate from the grade separation to among others all of the businesses located along Vopni Avenue.

Since I was present at the meeting held at the Brooklyn Recreational Centre on March 5, 1981, I can and hereby do testify to the presence of Mr. A. Gillman at said meeting.

The City of Winnipeg finally caused the delivery in the period March 31 to April 3, 1981, of a written notice (see copy attached) of commencement of construction of stage 1 of said project, to among others all of the businesses along Vopni Avenue.

I trust that the foregoing information proves adequate to the purpose of evidencing the measures taken by the City of Winnipeg to inform of the real and possible impacts of this street project and to afford the hearing of reaction thereto, particularly from those most directly and substantially effected, well prior to final decisions having been taken by the standing Committee and by Council of the City of Winnipeg.

Yours truly,

The first communication to the Commission from the executive committee of The Concerned Citizens of Vopni Avenue (hereinafter referred to as the "Committee"), of which appellant's Mr. A. Gillman was a member, was the letter of January 26, 1982 asking for a hearing "to expand on our objections". It read as follows:

Dear Sir:

Re: (1) Application for temporary at grade crossing at King Edward Street, across C.P. Carberry Subdivision, near Mile 3.6 and C.N. Oak Point Subdivision, near Mile 5.74;

(2) Application for proposed grade separation at the above location.

Your files nos. 27365.27 and 27367.1601

Please be advised that we represent good citizens and business people in the area of the above proposed undertaking.

Further be advised that we object to the project.

We would ask for a hearing, so that we would be in a position to expand on our objections.

We look forward to the setting up of same and await your advice as to time and date.

Yours truly,

On February 15, 1982 the Commission wrote Mr. Gillman and sent him the City's letter of February 2, 1982 quoted above. The Commission's letter read as follows:

Dear Sir:

Re: (1) Application for temporary at grade crossing at King Edward Street at Mileage 3.6 Carberry Subd. and mileage 5.74 Oak Point Subd.

(2) Application for temporary at grade crossing at the above location.

I refer to your letter dated January 26, 1982 and letter of February 2, 1982 from the City of Winnipeg (copy attached) regarding the above-noted matter.

It appears therefore that the City has alleviated the concern which you held with respect to access to Vopni Avenue.

Unless there are other substantial objections there can be no reason to delay or deny the City's request for the proposed works.

Yours truly,

There is no indication given in this letter of the possibility of a hearing.

On February 17, 1982 the Committee replied to the Commission as follows:

Dear Mr. O'Hara;

Re: (1) Application for temporary at grade crossing at King Edward Street, across C.P. Carberry Subdivision, near Mile 3.6 and C.N. Oak Point Subdivision, near Mile 5.74;

(2) Application for proposed grade separation at the above location.

Your files nos. 27365.27 and 27367.1601

Thank you for your letter of February 15th, 1982, only recently received and contents noted.

The request for the hearing would be the arena in which we would like to state our objections related to the application referred to above.

We request that you set up the date and time for such a hearing, and we will plan to attend accordingly.

We look forward to that hearing.

Yours truly,

On February 23, 1982 the City replied to the Commission as follows:

Dear Sir:

RE: Proposed Grade Separation, King Edward Street (Route 90)—Mile 5.74 C.N. Oak Point Subdivision and Mile 3.6

C.P. Carberry Subdivision—Your File No. 27365.27

Please advise if any further information respecting this matter

might be required by your Committee.

Yours truly,

On March 4, 1982 the Commission wrote a letter addressed to both the City and the Commit tee as follows:

Dear Sirs:

Re: Application for temporary at grade crossing at King Edward Street at Mileage 3.6 Carberry Subdivision and Mileage 5.74 Oak Point Subd.

Application for proposed grade separation at the above location

Attached to Mr. Gillman's letter is a copy of the City's letter of February 23, and to the City's letter, a copy of Mr. Gill- man's letter of February 17, 1982.

Both parties are requested to make their further submissions.

Yours truly,

p. 2

c.c.: Attached for your information

Mr. J.H. Galvin is a copy of each of the above

Director letters from the City and Mr.

Railway Relocation and Gillman

Crossing Branch

Transport Canada

28th Floor, Tower "C"

Place de Ville

OTTAWA, Ontario

KIA 0N5

Mr. S.S. Yoshino, P. Eng. Manager of Transportation, Research and Development The City of Winnipeg

Mr. W.P. Kearns Regional Manager R.T.C., C.T.C.

WINNIPEG, Manitoba

It is to be noted that by the enclosures the Committee was made aware that the City assumed that the Committee's concerns were those previ ously voiced by Mr. Gillman and that they had been fully addressed by the City's committees and Council.

To conclude this correspondence prior to the issuance of the Order of March 22, 1982, the City wrote the Commission on March 12, 1982, as follows:

Dear Sir:

RE: Proposed Grade Separation, King Edward Street (Route 90)—Mile 5.74 C.N. Oak Point Subdivision and Mile 3.6 C.P. Carberry Subdivision

Reference is made to your letter dated March 4, 1982 enclosing a copy of Mr. Gilman's (sic) letter of February 17, 1982 and requesting the City's submission in regard thereto.

Yours truly,

The Commission's request for submissions on March 4 was a reiteration or reminder of its previous request on February 15, so that in assess ing procedural fairness an extra 17 days have to be taken into account.

I take it as common ground that the Committee was not entitled to a hearing by the Commission. They had not sought to intervene and in my view were not a party adverse in interest to the City in any technical sense.

There is nothing in the record to indicate that the Committee had instructed solicitors to prepare written submissions. What the correspondence leaves with me is the impression that the Commit tee decided to stonewall and insist upon its request for a hearing.

Given the opportunity the Committee had to make its submissions to the Commission in opposi tion to the underpass project of the City, I cannot conclude the appellant was the victim of any breach of the duty of fairness that the Commission could have owed to it in that respect.

Since the above was written I have received the reasons prepared by the Chief Justice. I find myself in agreement with him.

With regard to the further point arising from the letter of February 23, 1982 from the President of the Commission to the Minister of Transport, I have nothing to add to what the Chief Justice says. With respect I see no merit in the point.

I would dispose of the matters before us as proposed by the Chief Justice.

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.

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