Supreme Court of Canada
Registrar of Motor Vehicles v. Canadian American Transfer, [1972] S.C.R. 811
Date: 1972-03-30
Registrar of Motor Vehicles (Plaintiff) Appellant;
and
Canadian American Transfer Limited (Defendant) Respondent.
1971: November 9; 1972: March 30.
Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Constitutional law—Extra-provincial undertaking—Transfer company’s vehicles used exclusively for carriage of goods from Ontario into U.S.A.—No li-
[Page 812]
cence held under The Public Commercial Vehicles Act (Ont.) nor under Motor Vehicle Transport Act (Can.)—Notice that motor vehicle permits of company to be cancelled pursuant to s. 6(3) of The Highway Traffic Act, R.S.O. 1960, c. 172—Whether Minister of Transport or his delegate, the Registrar, empowered to so act.
The respondent operated a transportation business and was engaged in the carriage of goods from points within the Province of Ontario to points in the United States. It did not hold an operating licence under The Public Commercial Vehicles Act, R.S.O. 1960, c. 319 (now R.S.O. 1970, c. 375), nor did it hold a licence issued under the Motor Vehicle Transport Act, 1953-54 (Can.), c. 59 (now R.S.C. 1970, c. M-14). The Registrar of Motor Vehicles, purporting to act under the powers conferred upon him by s. 6(3) of The Highway Traffic Act, R.S.O. 1960, c. 172 (now R.S.O. 1970, c. 202) gave notice to the respondent that the vehicle permits registered in its name would be cancelled as of a specified date and that if it wished to show cause why such action should not be taken it was to so advise the Registrar by registered mail before the said date.
The respondent did not appear before the Registrar to show cause but rather made application for an order in lieu of certiorari quashing the decision made by the Registrar to suspend or cancel any of the motor vehicle permits of the respondent. The judge of first instance dismissed the application but provided that the cancellation of the motor vehicle permits of the respondent should not take effect until ten days after the date of his order to allow the applicant to show cause if it so desired why the motor vehicle permits of the respondent should not be cancelled. Again the respondent did not take advantage of that provision to apply to the Registrar and show cause why its vehicle permits should not be cancelled but chose rather to appeal the decision of the judge of first instance to the Court of Appeal. In allowing the appeal, the Court of Appeal did not grant an order in lieu of certiorari but amended the original notice of motion so that it asked for the alternative relief of a declaration and then declared that the vehicles used by the respondent not being public commercial vehicles within the meaning of the definition contained in The Public Commercial Vehicles Act the Minister of Highways was not empowered by the provisions of The Highway Traffic
[Page 813]
Act to cancel the permits issued in respect of such vehicles. The Registrar then appealed to this Court.
Held: The appeal should be dismissed.
Since A.-G. for Ontario v. Winner, infra, it has been settled that the legislative powers of a province do not in any way cover any extra-provincial regulation of the motor transport trade. Therefore, the words of The Public Commercial Vehicles Act, including the definition, must be interpreted in the light of that constitutional position and particularly the words “as a public commercial vehicle within the meaning of The Public Commercial Vehicles Act” as they appear in s. 6(3) of The Highway Traffic Act can only refer to vehicles which are within the provisions of the said Public Commercial Vehicles Act. The respondent’s vehicles, which were used in interprovincial trade only carrying goods from Ontario into the U.S.A., were not within the meaning of the definition “public commercial vehicle” as contained in The Public Commercial Vehicles Act.
As to the provisions of s. 3 of the Motor Vehicle Transport Act, on which the appellant also relied, the respondent was certainly in breach of subs. (1) of s. 3 when it entered into the extra‑provincial undertaking without a licence from the provincial transport board, the board designated in s. 3(2) as being the board to consider application for such licence, however, subs. (2) did not give any legislative authority to the provincial legislature or extend or alter the provisions of the existing provincial legislation.
A.-G. for Ont. v. Winner, [1954] A.C. 541; A.G. of N.S. v. A.G. of Can. et al., [1951] S.C.R. 31; Coughlin v. Ontario Highway Transport Board et al., [1968] S.C.R. 569; Prince Edward Island Marketing Board v. H.B. Willis Inc. and A.G. of Can., [1952] 2 S.C.R. 392, applied.
APPEAL from a judgment of the Court of Appeal for Ontario[1], allowing an appeal from a judgment of Lacourciere J. Appeal dismissed.
A.E. Charlton, for the appellant.
J.E. Eberle, Q.C., for the respondent.
[Page 814]
The judgment of the Court was delivered by
SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on September 24, 1970. By that judgment, the Court of Appeal for Ontario allowed an appeal from the judgment of Lacourciere J. which had been pronounced on May 6, 1970, whereby the learned trial judge had dismissed an application made by the present respondent for an order in lieu of certiorari quashing the decision made by the Registrar, the present appellant, to suspend or cancel any of the motor vehicle permits of the respondent.
The Court of Appeal for Ontario did not, however, grant an order in lieu of certiorari or a prohibition but amended the original notice of motion so that it asked for the alternative relief of a declaration and then declared that the vehicles used by the respondent not being public commercial vehicles within the meaning of the definition contained in The Public Commercial Vehicles Act of Ontario the Minister of Highways was not empowered by the provisions of The Highway Traffic Act to cancel the permits issued in respect of such vehicles.
The respondent operates a transportation business and is engaged in the carriage of goods from points within the Province of Ontario to points in the United States. It does not hold and never did hold an operating licence under The Public Commercial Vehicles Act of Ontario, R.S.O. 1960, c. 319, now R.S.O. 1970, c. 375, nor does it hold a licence issued under the Motor Vehicle Transport Act of Canada, now R.S.C. 1970, c. M-14. The Registrar of Motor Vehicles, purporting to act under the powers conferred upon him by s. 6(3) of The Highway Traffic Act, R.S.O. 1960, c. 172, now R.S.O. 1970, c. 202, gave notice to the respondent in the following words:
TAKE NOTICE THAT AS OF the 11th day of March the following vehicle permits registered in your name will be cancelled pursuant to Section 6(3) of The Highway Traffic Act.
…List of vehicles set out…
If you wish to show cause why such action should not be taken, you must serve the Regis-
[Page 815]
trar of Motor Vehicles with a written notice by registered mail before March 11th, 1970.
Dated at Toronto this 19th day of February, 1970.
R.H. Humphries,
Registrar of Motor Vehicles,
Ferguson Block,
Queen’s Park,
TORONTO, Ontario.
The respondent did not appear before the Registrar to show cause but rather took the proceedings by serving a notice of motion to quash the Registrar’s order. Lacourciere J. dismissed that application but provided that the cancellation of the motor vehicle permits of the respondent should not take effect until ten days after the date of his order to allow the applicant to show cause if it so desired why the motor vehicle permits of the respondent should not be cancelled. Again the respondent did not take advantage of that provision to apply to the Registrar and show cause why its vehicle permits should not be cancelled but chose rather to appeal the decision of Lacourciere J. to the Court of Appeal. I have already dealt with the disposition of the matter by the latter Court. The appellant, the Registrar, now appeals to this Court.
The respondent in its appeal to the Court of Appeal for Ontario in addition to submitting the matters with which I shall deal hereafter also submitted that s. 6(3) of The Highway Traffic Act, under which the Registrar purported to act in cancelling the respondent’s licences, gave that power to the Minister and not to the Registrar. The respondent also submitted that the action of the Registrar, under the circumstances and with particular reference to the form of the notice, was a denial of natural justice in that the Registrar purported to cancel the licences leaving to the appellant not the opportunity to argue against the cancellation but only an opportunity to attempt to persuade the Registrar that the cancellation should be revoked. The Court of Appeal for Ontario found it unnecessary to deal with either of these two grounds and I am also of the opinion that the consideration of those grounds is not necessary for the disposition of this appeal.
[Page 816]
It should be noted in reference to the first of them that s. 3(3) of The Highway Traffic Act provides that the Minister may authorize the Deputy Minister and the Registrar or either of them to exercise and discharge in his place any of the powers conferred or the duties imposed on him under the Act and that there was filed with Lacourciere J. on the hearing of the application for certiorari and prohibition a document dated January 18, 1967, in which the Minister over his signature authorized the Registrar to carry out the duties imposed on the Minister under the provisions of various sections of The Highway Traffic Act including s. 6(3) thereof. This document was therefore before Lacourciere J. upon the hearing of the application and I can see no validity to the submission that the power of the Registrar did not appear on the face of the record. It did so appear. And, Lacourciere J. was, with respect, quite correct when he said:
This discretion was properly delegated by the Minister of Transport to the Registrar.
With respect, I also agree with Lacourciere J. when he said, in giving reasons in reference to the submission as to the lack of natural justice:
I need only quote from S.A. de Smith, Judicial Review of Administrative Action, 1959 edition, where the learned author is dealing with “Natural Justice: The Right to a Hearing”. At p. 122 he states:
If, of course, the decision does not, take effect until after a prescribed period for lodging an appeal or making other representations has expired, the opportunities thus provided to a person aggrieved do not materially differ from a right to an antecedent hearing.
However, as to the important issue—whether the Minister or his delegate, the Registrar, has under the circumstances in the particular case any power to act under s. 6(3) of The Highway Traffic Act, I am, with respect, in full agreement with the views of Schroeder J.A. expressed in his reasons when giving judgment for the Court of Appeal for Ontario. The Registrar purported to act upon the basis that the respondent had permits
[Page 817]
for vehicles which were used as public commercial vehicles within the meaning of The Public Commercial Vehicles Act and was not in the possession of an operating licence as required by such Act. As I have already pointed out, the respondent was in possession of vehicles which were used in inter‑provincial trade carrying goods from the Province of Ontario into the United States of America and only in such trade. The Public Commercial Vehicles Act is a statute of the Province of Ontario. That Province, of course, may only legislate within its own sphere under the provisions of the British North America Act.
Since A.-G. for Ontario v. Winner[2], it has been settled that the legislative powers of a province do not in any way cover any extra-provincial regulation of the motor transport trade. Therefore, the words of The Public Commercial Vehicles Act of the Province of Ontario, including the definition, must be interpreted in the light of that constitutional position and particularly the words “as a public commercial vehicle within the meaning of The Public Commercial Vehicles Act” as they appear in s. 6(3) of The Highway Traffie Act can only refer to vehicles which are within the provisions of the said Public Commercial Vehicles Act. Therefore, in my opinion, the unreported decision of the Court of Appeal for Ontario to which Schroeder J.A. refers in the words:
It has been decided by this Court that such a company [i.e., an extra-provincial undertaking] does not come within the definition of “public commercial vehicle” as defined by The Public Commercial Vehicles Act, s. 1(i).
was properly decided, and I am therefore unable to accede to the argument made by counsel for the appellant that the respondent’s vehicles are vehicles within the meaning of the definition “public commercial vehicle” as contained in The Public Commercial Vehicles Act. They are not within such meaning and after the Winner case they cannot be.
The appellant also relies on the provisions of s. 3 of the Motor Vehicle Transport Act, now
[Page 818]
found in R.S.C. 1970, c. M-14, originally enacted by 1953-54, c. 59. I quote s. 3 in full:
3. (1) Where in any province a licence is by the law of the province required for the operation of a local undertaking, no person shall operate an extra-provincial undertaking in that province unless he holds a licence issued under the authority of this Act.
(2) The provincial transport board in each province may in its discretion issue a licence to a person to operate an extra-provincial undertaking into or through the province upon the like terms and conditions and in the like manner as if the extra-provincial undertaking operated in the province were a local undertaking.
It will be seen that subs. (1) of s. 3 simply makes it an offence, to operate an extra-provincial undertaking in any province where local undertakings are required to have a licence unless the operator holds a licence under the authority of the Motor Vehicle Transport Act, i.e., the federal statute.
The respondent here was prosecuted and convicted on several occasions for breach of subs. (1) of s. 3 of the statute. Subsection (2), on the other hand, constitutes the provincial transport board in each province as a board which may issue licences to a person to operate an extra-provincial undertaking into or through the province. That subsection does not delegate to the province any power of legislation and, indeed, such attempted delegation in a federal statute would itself be ultra vires: The Attorney General of Nova Scotia v. The Attorney General of Canada and the Lord Nelson Hotel Company Limited[3]; Coughlin v. Ontario Highway Transport Board et al.[4], at pp. 574-5. Section 3(2) of the Motor Vehicle Transport Act designates the various provincial boards as being the authorities who are entitled to grant licences under the federal statute, the Motor Vehicle Transport Act. Such designation of a provincial agency to carry out duties under a federal statute would seem to be quite within the federal legislative powers: Prince Edward Island Marketing Board v. H.B.
[Page 819]
Willis Inc. and the Attorney General of Canada[5], where Rinfret C.J. said at p. 396, giving the unanimous judgment of the Court on this question:
The effect of that enactment is for the Governor-in-Council to adopt as its own a board, or agency already authorized under the law of a province, to exercise powers of regulation outside the province in interprovincial and export trade, and for such purposes to exercise all or any powers exercisable by such board, or agency, in relation to the marketing of such agricultural products locally within the province. I cannot see any objection to federal legislation of this nature. Ever since Valin v. Langlois (1879) 5 App. Cas. 115, when the Privy Council refused leave to appeal from the decision of this Court (1879) 3 Can. S.C.R. 1, the principle has been consistently admitted that it was competent for Parliament to “employ its own executive officers for the purpose of carrying out legislation which is within its constitutional authority, as it does regularly in the case of revenue officials and other matters which need not be enumerated”. The latter are the words of Lord Atkin, who delivered the judgment of the Judicial Committee in Proprietary Articles Trade Association et al., v. A.G. for Canada et al., [1931] A.C. 310. The words just quoted are preceded in the judgment of Lord Atkin by these other words:—
Nor is there any ground for suggesting that the Dominion may not…
It will be seen, therefore, that on that point the Judicial Committee did not entertain the slightest doubt.
This view was again adopted by Cartwright J. in Coughlin, supra.
I am, therefore, quite unable to understand how the provisions of s. 3 of the Motor Vehicle Transport Act (Canada) assist the appellant in the particular case. The respondent was certainly in breach of subs. (1) of s. 3 when it entered into the extra-provincial undertaking without a licence from the provincial transport board, the board designated in s. 3(2) as being the board to consider application for such licence, how-
[Page 820]
ever, subs. (2) does not give any legislative authority to the provincial legislature or extend or alter the provisions of the existing provincial legislation.
I should dispose of one additional matter. The complaint as to the order of the Registrar was that it was discriminatory. Had I come to another conclusion in reference to the effect of the Motor Vehicle Transport Act (Canada) and of The Highway Traffic Act, I would not have been ready to uphold any objection to the exercise of the Registrar’s discretion on the basis that it was discriminatory. The Registrar was not concerned with any allegation as to multiple breaches of the Ontario Highway Traffic Act for such offences as overloading. He was only concerned with a person who was attempting to carry on extra-provincial trade without having obtained a licence under the provisions of the Motor Vehicle Transport Act (Canada).
For these reasons, I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitor for the appellant: A.R. Dick, Toronto.
Solicitors for the respondent: Goodman & Goodman, Toronto.