Prairie Coach Charter Services Ltd. v. Date:, 2011 MBCA 82

Citation: Prairie Coach Charter Services Ltd. v. Date: 20110929 The Motor Transport Board, 2011 MBCA 82 Docket: AI 11-30-07594 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) D. E. Swayze PRAIRIE COACH CHARTER SERVICES LTD. ) for the Applicant ) Applicant ) B. T.

Jones ) for the Respondent - and - ) ) Chambers motion heard: THE MOTOR TRANSPORT BOARD ) September 15, 2011 ) Respondent ) Decision pronounced: ) September 29, 2011 HAMILTON J.A. 1 The applicant is an operator of a charter bus service and it applied three times between May 2009 and December 2010 to the Motor Transport Board (the Board) to remove certain restrictions from its operating authority.

The applicant seeks leave to appeal the decision of the Board, dated May 31, 2011, not to “undertake a review” of the rejection of its third application for an amendment to its operating authority because the application was “essentially a duplicate of previous applications.” 2 The applicant asserts that the Board has consistently failed to follow The Motor Transport Board Rules of Procedure , Man. Reg. 150/88 (the Rules of Procedure ) with respect to processing its applications.

It points to the fact that its first application in May 2009 was not advertised as required, and that once advertised, it was dealt with, and decided upon in the absence of a public hearing. In addition, it points to the Board’s refusal to accept for processing its second and third applications in March 2010 and December 2010.

The Board rejected the March 2010 application because it was a “duplicate” of the May 2009 application, and rejected the December 2010 application because “[t]he Board is not prepared to consider another application for the same request and amendment at this time.” 3 After the rejection of the December 2010 application, the applicant asked the Board to review and reconsider its decision in accordance with the Rules of Procedure . In response, the Board issued its May 31, 2011 decision. The Statutory Regime and the Rules of Procedure 4 The Board is established pursuant to The Highway Traffic Act , C.C.S.M., c.

H60 (the Act ), and has general supervisory authority over motor carriers and operators of public service vehicles, which includes authority over charter bus service operators. 5 Section 326(17) of the Act provides that the Board “may make rules not inconsistent with any Act or law to regulate procedure.” Pursuant to this section, the Board enacted the Rules of Procedure . 6 The provisions in the Rules of Procedure that are pertinent to this leave to appeal application are as follows: Applications 4(1) A person may make an application by (

a) submitting to a document control officer a completed application which shall be in Form 1 in the case of a truck service, Form 2 in the case of a bus service, and Form 3 in the case of a livery service; ….

Acceptance for filing 5(1) The document control officer shall accept an application for filing which conforms with these rules. Prima facie case for granting 7 Where the board is satisfied on the basis of the evidence submitted in support of the application that, in the absence of evidence to the contrary, the application should be granted, the board shall cause a notice in Form 7 to be published in the next issue of The Manitoba Gazette . Setting down of application 18 Subject to

section 18.1, where an application is opposed by an accepted statement of opposition and the applicant has complied with the rules, the board shall set down the application for public hearing. Review committee 54 All applications for review under this Part shall be heard and determined by a review committee comprised of not less than five members of the board designated by the Chairman. Where no applicable rule 89 Procedure in any matter not specifically provided for in these rules shall be regulated by analogy to these rules. [emphasis added] Granting Leave to Appeal 7

Section 283 of the Act allows for an appeal to this court from: … [A]ny final order or decision of the ... [B]oard upon any question involving the jurisdiction of the [B]oard or upon any point of law; and

section 58 of The Public Utilities Board Act except clause 58(1) (

c) thereof applies, mutatis mutandis, to any appeal taken. 8

Section 58 of The Public Utilities Board Act , C.C.S.M., c. P280, provides, among other things, that leave to appeal must first be granted by a judge of this court. 9 The applicant and the Board appropriately agree that the Board’s May 31, 2011 decision is a final decision and that I must be satisfied that the applicant has raised a question of law or jurisdiction that meet these further criteria: 1. the question must raise an arguable case of substance (that is, one with a reasonable prospect of success); and 2. the question must raise an issue of importance that ought to engage this court. See Lejins v.

Manitoba Public Insurance Corp. , 2003 MBCA 95 , 39 M.V.R. (4th) 217 ; Greyhound Canada Transportation Corp. v. Motor Transport Board , 47 M.V.R. (5th) 179 ; and Plaha v. Taxicab Board (Man.) , 2010 MBCA 99 , 262 Man.R. (2d) 9 . Applicant’s Position 10 The applicant seeks leave to appeal on the following questions: 1. Did the Board err in refusing to grant the applicant a public hearing in accordance with s. 18 of the Rules of Procedure ?

2. Did the Board err in refusing to accept an application for expanded operating authority in accordance with s. 5(1) of the Rules ofProcedure? 3. Did the Board err in refusing to find that the applicant had made a prima facie case for granting a public hearing in accordance withs. 7 of the Rules of Procedure? 4. Did the Board err in refusing to advertise the application in the Manitoba Gazette in accordance with s. 7 of the Rules of Procedure? 5.

Did the Board err in refusing to exercise its jurisdiction to accept and process the applicant’s application for expanded operatingauthority? 11 It says that the foregoing raise arguable questions of law or jurisdiction that meet the criteria for granting leave to appeal. 12 While the applicant acknowledges that questions 1, 3 and 4 relate to the December 2009 application, it argues that I shouldgive consideration to the fact that the application was not processed in accordance with the Rules of Procedure, and as a result, theapplicant has never received due process.

Therefore, in these circumstances, it says that the Board cannot reject the second and thirdapplications as duplicates. 13 As for questions 2 and 5, the applicant asserts that the use of mandatory language in s. 5 and s. 18 of the Rules of Proceduremeans that the Board had no option but to accept the March 2010 and December 2010 applications and process them in accordance withthe Rules of Procedure, including those related to a request to review a decision.

It says that there is nothing in the Rules of Procedurethat limit how often applications may be made or state the degree to which new information must be provided, arguing that, in any event,each application contained new information. Finally, it says that if the Board wished to put conditions on when the applicant could applyagain, it would have to give the applicant an opportunity to be heard on that issue. In other words, it says that the Board did not followthe rules of natural justice, let alone its own Rules of Procedure.

The Board’s Position 14 The Board takes issue with the leave to appeal questions that do not pertain directly to its May 2011 decision, saying that theapplicant did not appeal the Board’s decisions concerning its first two applications and it cannot do so through this leave application. 15 As for the Board’s questions 2 and 5, it says that the Board is entitled to control its own procedure to prevent repetitivefilings which are merely attempts to reset the appeal clock. It relies on Canadian Human Rights Commission v. Canada Post, 2004 FC81, 245 F.T.R. 263; Kaloti v.

Canada (Minister of Citizenship and Immigration) (2000), (FCA), 186 D.L.R. (4th)120 (F.C.A.); and Sawatsky v. Norris (1992), (ON SC), 10 O.R. (3d) 67 (Gen. Div.). Therefore, the Board says that itis within its jurisdiction to decline to hear a repetitive application. 16 Further, the Board argues that the applicant is relying upon rules that pertain to a new application and that the applicant’sapplication was for an amendment to an existing operating authority. Therefore, in the absence of specific rules, the Board was entitledto make rules by way of analogy in accordance with s. 89 of the Rules of Procedure.

Decision 17 I agree with the Board that leave should not be granted on questions 1, 3 and 4, for the reason that they concern decisions ofthe Board for which the time to seek leave to appeal has long expired. Further, the applicant has not sought an extension of time to seekleave to appeal. In fact, the notice of motion seeking leave only relates to the Board’s May 31, 2011 decision. 18 I am persuaded that the applicant has raised one arguable question of law or jurisdiction through its questions 2 and 5, giventhe Rules of Procedure and how the Board dealt with the December 2010 application. Because the

interpretation, and application, of theRules of Procedure will be at issue, I am persuaded that the question has broader implications than the outcome of the applicant’s ownapplication because it raises issues that pertain to the ongoing daily work of the Board. Therefore, I am satisfied that the question is oneof importance that ought to engage the attention of this court. 19 In reaching this conclusion, I considered that the standard of review will likely be one of correctness, but it will be for thepanel to ultimately decide the standard.

See Cash Store Financial Services Inc., Re, 2009 MBCA 1, 236 Man.R. (2d) 29. I alsoconsidered that, while a tribunal has control over its own procedure and can prevent abuse of its process, this is not an unfettered right. In that regard, Sopinka J., in Prassad v. Canada (Minister of Employment and Immigration), (SCC), [1989] 1 S.C.R.560, wrote (at p. 568-69):

…. We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters of their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness .... [emphasis added] 20 The foregoing words were quoted in Canada Post , one of the cases relied upon by the Board in response to this application for leave to appeal. 21 The applicant’s questions 2 and 5 should be combined into one question.

Leave to appeal is granted on the following question: Did the Board err in law or jurisdiction when it refused to accept and process the applicant’s December 2010 application for an expanded operating authority, in accordance with the Rules of Procedure ? 22 One final comment. Given the nature of the leave application, there was no record of proceedings to be filed. In support of its application for leave to appeal, the applicant filed the affidavit of its president, Samuel Henry.

He set out the history of the applicant’s dealings with the Board since the December 2009 application, attaching the three applications and related correspondence with the Board. The Board took issue with some of the contents of the affidavit.

I was satisfied that the affidavit provided appropriate factual background for the leave application, except for the seven paragraphs appropriately challenged by the Board (and which I did not take into account) because they were argument (paras. 21, 25-26), speculation as to why the Board did what it did (para. 15) or addressed the merits of the December 2010 application (paras. 28-30). 23 Given the narrow nature of the question for which leave has been granted, the applicant should file an appeal book that contains only those documents that relate to the applicant’s December 2010 application, the Board’s refusal to process it and the Board’s refusal to reconsider that decision.

J.A.