Date: 20020516
Docket: 02-A-10
Neutral citation: 2002 FCA 193
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY LIMITED
Applicant
and
FERROEQUUS RAILWAY COMPANY LIMITED and
THE CANADIAN TRANSPORTATION AGENCY
Respondents
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on May 16, 2002.
REASONS FOR ORDER BY: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
PELLETIER J.A.
Date: 20020516
Docket: 02-A-10
Neutral citation: 2002 FCA 193
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY LIMITED
Applicant
and
FERROEQUUS RAILWAY COMPANY LIMITED and
THE CANADIAN TRANSPORTATION AGENCY
Respondents
REASONS FOR ORDER
(Dealt with in writing without appearance of parties,
at Ottawa, Ontario, May 16, 2002.)
[1] This application by Canadian National Railway Company (CN) for leave to appeal pursuant to section 41 of the Canadian Transportation Act (the Act) is in respect of decision LET-R-101-2002 of the Canadian Transportation Agency (the Agency), dated April 5, 2002.
[2] The application for leave to appeal raises the question of the interpretation of subsection 29(1) of the Act, which reads:
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29. (1) The Agency shall make its decision in any proceedings before it as expeditiously as possible, but no later than one hundred and twenty days after the originating documents are received, unless the parties agree to an extension or this Act or a regulation made under subsection (2) provides otherwise. |
29. (1) Sauf indication contraire de la présente loi ou d'un règlement pris en vertu du paragraphe (2) ou accord entre les parties sur une prolongation du délai, l'Office rend sa décision sur toute affaire dont il est saisi avec toute la diligence possible dans les cent vingt jours suivant la réception de l'acte introductif d'instance. |
[3] CN argues that the Agency is without jurisdiction to decide the amended running rights application of Ferroequus Railway Company Limited (Ferroequus) as 120 days have elapsed since the filing of its application. The respondents argue that section 29 is directory in nature and that the Agency retains jurisdiction to make a decision beyond the 120 day time frame where, due primarily to the time required by the Agency to determine numerous motions filed by CN, it did not have the opportunity to exercise its legal duty and render a decision on the merits.
[4] The issue, it seems to me, has been determined by this Court in McCain Foods Ltd. v. Canada (National Transportation Agency), [1993] 1 F.C. 583 (F.C.A.), where Desjardins J.A., for the Court, relying on the following passage in the decision of the Supreme Court of Canada in the Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at pp. 740-741:
A distinction between statutory provisions that are mandatory in the sense that failure to comply with them will lead to invalidity of the act in question, and directory, in the sense that failure to comply will not necessarily lead to such invalidity, is one that is found in Anglo-Canadian law. The most commonly cited formulation is Sir Arthur Channell's in Montreal Street Railway Co. v. Normandin, [1917] A.C. 170 (P.C.), at pp. 174-75:
The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at.... When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.
went on to conclude that subsection 165(1) of the National Transportation Act, 1987 was directory only. Subsection 165(1) read:
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165. (1) Where the Agency determines that a branch line or segment thereof is uneconomic and that there is no reasonable probability of its becoming economic in the foreseeable future, the Agency shall, within six months after the application for the abandonment is received by the Agency, order that the operation of the branch line or segment be abandoned. |
165. (1) Dans les cas où il détermine que l'embranchement ou le tronçon n'est pas rentable et qu'il n'y a aucun motif de croire qu'il puisse le devenir dans un avenir prévisible, l'Office ordonne, par arrêté, dans les six mois suivant la réception de la demande par celui-ci, l'abandon de son exploitation.
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[5] The wording of subsection 29(1) of the Act is different from that of subsection 165(1) of the former statute, but in my view the same principle of interpretation applies with equal force. In the case at bar, Ferroequus had no control over the Agency's process and the Agency could not predict the number of interlocutory applications that were filed by CN and, also, by a third party, Canadian Pacific Railway Company. To use the words in Normandin and in McCain (at p. 592), Ferroequus would be at a serious general disadvantage if the Agency could no longer proceed with the application. Like Desjardins J.A. in McCain, I see no benefit in requiring the parties and the Agency, in the circumstances, to start anew, and I see no public interest served in doing so.
[6] I note that a similar argument has been raised by Via Rail Canada Inc. in an application for leave to appeal (01-A-16, Via Rail Canada Inc. v. Canadian Transportation Agency and Council of Canadian with Disabilities). Leave was denied by the Court without reasons on June 12, 2001.
[7] The application for leave to appeal does not, therefore, raise an arguable ground on which the proposed appeal might succeed.
[8] The application for leave to appeal should be dismissed with costs to the respondent Ferroequus Railway Company Limited.
"Robert Décary"
J.A.
"I agree.
Gilles Létourneau, J.A."
"I agree.
J.D. Denis Pelletier, J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: 02-A-10
STYLE OF CAUSE: Canadian National Railway Company Limited v. Ferroequus Railway Company Limited et al
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR JUDGMENT BY: Décary J.A.
DATED: May 16, 2002
CONCURRED IN BY: Létourneau J.A.
Pelletier J.A.
WRITTEN REPRESENTATIONS BY:
Brian A. Crane, Q.C.
Ronald D. Lunau FOR THE APPLICANT
Forrest C. Hume
Louis J. Zivot FOR FERROEQUUS RAILWAY CO. LTD.
Alain Langlois FOR CANADIAN TRANSPORTATION AGENCY
SOLICITORS OF RECORD:
Gowling Lafleur Henderson LLP FOR THE APPLICANT
Ottawa, Ontario
Forrest C. Hume and
Lang Michener
Vancouver, British Columbia FOR FERROEQUUS RAILWAY CO. LTD.
Canadian Transportation Agency
Hull, Quebec FOR CANADIAN TRANSPORTATION AGENCY