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.
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.