A-766-81
City of Melville, Town of Watrous and Transport
2000 Saskatchewan (Appellants)
v.
Attorney General of Canada, Minister of Trans
port for Canada, VIA Rail Canada, Canadian
Pacific Limited and Canadian National Railways
(Respondents)
Court of Appeal, Heald, Le Dain JJ. and Hyde
D.J.—Calgary, May 13 and 14; Ottawa, Septem-
ber 20, 1982.
Railways — Appeal from judgment of Trial Division strik
ing out statement of claim as disclosing no reasonable cause of
action — Appellants seeking declaration Order in Council
varying Orders of Canadian Transport Commission and dis
continuing passenger-train services, invalid — Appeal allowed
on basis of reasons for judgment in The Jasper Park case,
[19831 2 F.C. 98 (C.A.) although appellants' arguments in
instant case to some extent different from those in The Jasper
Park case.
COUNSEL:
R. Scott, Q.C. for appellants.
E. A. Bowie, Q.C. for respondents Attorney
General of Canada and Minister of Transport
for Canada.
M. E. Rothstein, Q.C. and L. M. Huart for
respondent VIA Rail Canada.
C. Wendlandt for respondent Canadian Pacif
ic Limited.
Grant H. Nerbas and P. Antymniuk for
respondent Canadian National Railways.
SOLICITORS:
Thompson, Dorfman, Sweatman, Winnipeg,
for appellants.
Deputy Attorney General of Canada for
respondents Attorney General of Canada and
Minister of Transport for Canada.
Aikins, MacAulay & Thorvaldson, Win-
nipeg, for respondent VIA Rail Canada.
Canadian Pacific Limited Law Department,
Montreal, for respondent Canadian Pacific
Limited.
Canadian National Railways Law Depart
ment, Winnipeg, for respondent Canadian
National Railways.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is an appeal from a judgment of
the Trial Division [[1982] 2 F.C. 3] wherein the
motions of the respondents for an order pursuant
to Rule 419(1)(a) striking out the appellants'
statement of claim and dismissing the action
against them were granted with costs.' This appeal
is a parallel appeal to that in the case of The
Jasper Park Chamber of Commerce et al. v. Gov
ernor General in Council as represented by the
Attorney General of Canada, et al., [1983] 2 F.C.
98. As in The Jasper Park case (supra), here also
the appellants sought a declaration that Order in
Council P.C. 1981-2171 was invalid and requested
ancillary injunctive relief.
The legal arguments on behalf of these appel
lants were to some extent different from those
advanced by the appellants in The Jasper Park
case. However, since it is my opinion that these
appellants are entitled to succeed on the basis of
the reasons for judgment given in The Jasper Park
case, I do not think it necessary to deal with the
additional arguments advanced by counsel for
these appellants. Accordingly, and for the reasons
given in The Jasper Park case, I would allow this
appeal and set aside the order of the Trial Division
striking out the statement of claim. The appellants
are entitled to their costs both here and in the
Trial Division.
LE DAIN J.: I agree.
HYDE D.J.: I agree.
1 The statement of claim ordered struck out by the Trial
Division was on behalf of four plaintiffs: the three appellants
herein along with the Attorney General of Saskatchewan. The
Attorney General of Saskatchewan did not appeal the Trial
Division judgment.
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.