A-573-79
Air Canada and C.P. Air (Appellants)
v.
Wardair Canada (1975) Ltd. (Respondent)
Court of Appeal, Heald, Urie and Ryan JJ.—
Ottawa, October 29 and November 2, 1979.
Aeronautics — Appeal from decision of Review Committee
of Canadian Transport Commission reversing Transport Com
mittee's decision and granting respondent's application for
consolidation of certain advance booking charter flights pur
suant to Air Carrier Regulations, s. 43.37 — Whether or not
the appeal has become academic because all flights that were
the subject matter of the Review Committee's decision had
been completed so that this Court's judgment would be nuga-
tory — Air Carrier Regulations, SOR/72-145 (as amended by
SOR/79-19), s. 43.37.
International Brotherhood of Electrical Workers, Local
Union 2085 v. Winnipeg Builders' Exchange [1967]
S.C.R. 628, referred to. Canadian Cablesystems (Ontario)
Ltd. v. Consumers' Association of Canada [1977] 2
S.C.R. 740, referred to. Minister of Manpower and Immi
gration v. Hardayal [1978] 1 S.C.R. 470, referred to.
APPEAL.
COUNSEL:
C. K. Irving for appellant Air Canada.
J. Hamilton, Q.C. for appellant C.P. Air.
F. Lemieux for respondent.
G. W. Nadeau for Canadian Transport
Commission.
SOLICITORS:
Courtois, Clarkson, Parsons & Tétrault,
Montreal, for appellant Air Canada.
Hamilton, Torrance, Stinson, Campbell,
Nobbs & Woods, Toronto, for appellant C.P.
Air.
Herridge, Tolmie, Ottawa, for respondent.
Campbell, Pepper, Laffoley, Legault &
Longtin, Montreal, for British Airways Board.
The following are the reasons for judgment of
the Court rendered in English by
URIE J.: This is an appeal brought pursuant to
leave granted under section 64(2) of the National
Transportation Act, R.S.C. 1970, c. N-17, from a
decision of the Review Committee of the Canadian
Transport Commission dated July 27, 1979. By
that decision the Review Committee reversed a
decision of the Air Transport Committee of the
Commission and granted the respondent's applica
tion for the consolidation of certain advance book
ing charter flights pursuant to section 43.37 of the
Air Carrier Regulations, SOR/72-145 as amend
ed by SOR/79-19.
At the outset of the appeal the Court raised with
counsel the question as to whether or not the
appeal had become academic by virtue of the fact
that all of the flights which were the subject
matter of the Review Committee's decision had
been completed so that a judgment of this Court
would be nugatory. Counsel for the appellants
argued vigorously, supported by counsel for the
respondent, that since authorization for advance
booking charter flights is rarely given by the Com
mission more than six months in advance of the
flights, the review and appeal provisions of the
National Transportation Act and the time delays
occasioned thereby are such that no effective
remedy could ever be available to an aggrieved
party if the normal, well-settled rules applicable to
appeals which have become academic or in which
there is no longer any lis between the parties, were
to be applied.
In seeking an exception from what was conceded
to be the normal rule', counsel relied heavily on
International Brotherhood of Electrical Workers,
Local Union 2085 v. Winnipeg Builders'
Exchange 2 . Reliance was also placed on the recent
decision of Minister of Manpower and Immigra
tion v. Hardayal. 3
The problem exposed in this appeal, counsel
said, was an on-going one in that applications for
consolidation of advance booking charters are
being processed by the Commission regularly and
it is important to the airlines and the public at
large that the Commission correctly interprets and
applies the Act and the Regulations. This fact,
combined with the difficulty in ever getting the
matter before this Court before the charter flights
in question have been completed makes it impera
tive, in their view, that the appeal fall within the
E.g. Canadian Cablesystems (Ontario) Limited v. Consum
ers' Association of Canada [1977] 2 S.C.R. 740.
2 [1967] S.C.R. 628.
3 [1978] 1 S.C.R. 470 at 474-477.
principle enunciated by Cartwright J., as he then
was, in the Winnipeg Builders' Exchange case.
Without, for the moment, discussing the merits
of these submissions, the Court is faced with even
a more formidable problem. Section 64(2) of the
National Transportation Act authorizes an appeal
to this Court upon a question of law or jurisdic
tion, leave having been granted to do so. Section
64(5) spells out the powers of the Court. It reads
as follows:
64....
(5) On the hearing of any appeal, the Court may draw all
such inferences as are not inconsistent with the facts expressly
found by the Commission, and are necessary for determining
the question of jurisdiction, or law, as the case may be, and
shall certify its opinion to the Commission, and the Commission
shall make an order in accordance with such opinion.
It will be seen that this Court must certify its
opinion to the Commission and "the Commission
shall make an order in accordance with such opin
ion". If the Court were to certify to the Commis
sion in this case that the Review Committee erred
in its interpretation of section 43.37 of the Air
Carrier Regulations, what order could the Com
mission make to rectify the error in view of the
fact that all charter flights affected by that deci
sion have been completed? We are all of the
opinion that it could make no effective order and
thus could not comply with the mandatory provi
sions of the Act. The result would be that the
Court would be in the position of giving an opin
ion, the effect of which would be advisory only
and, clearly, that is not what the Act contem
plates. For this very practical reason, as well as for
the generally accepted principle that it is not the
function of courts of appeal to render judgments
which are, in effect, opinions or are advisory in
nature, we are of the view that the appeal herein
has been rendered academic. We ought not, there
fore, to render any opinion on or dispose of the
appeal, on its merits.
Accordingly, the appeal will be dismissed with
costs.
* * *
HEALD J.: I agree.
* * *
RYAN J.: I concur.
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.