Prairie Coach Charter Services Ltd. v. Date:, 2012 MBCA 95

Citation: Prairie Coach Charter Services Ltd. v. Date: 20121012 The Motor Transport Board, 2012 MBCA 95 Docket: AI 11-30-07594 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Mr. Justice Alan D. MacInnes BETWEEN : PRAIRIE COACH CHARTER ) D. E. Swayze SERVICES LTD. ) for the Appellant ) Appellant ) B. T.

Jones ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: THE MOTOR TRANSPORT BOARD ) September 14, 2012 ) Respondent ) Written Reasons: ) October 12, 2012 MONNIN J.A. 1 At the conclusion of the hearing of this appeal, the panel indicated that the appeal would be allowed, with short reasons to follow.

These are the reasons. 2 The appellant, with leave granted by a judge of this court, appeals from a decision of The Motor Transport Board (the Board) refusing to accept for processing an application for an amendment to the appellant’s operating authority. 3 The facts are conveniently set out in the decision of my colleague Hamilton J.A., when she granted leave to appeal, as follows (at paras. 1-3): 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.” 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.”

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. 4 It should be noted that, at the appeal, we were advised that the Board returned the third application, the December 2010 application referred to in Hamilton J.A.’s decision, to the appellant’s counsel, along with the filing fee, and that there was no docket number assigned to this third application. 5 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. 6 Section 326(17) of the Act provides that the Board “may make rules not inconsistent with any Act or law to regulate its procedure.” Pursuant to this section, the Board enacted the Motor Transport Board Rules of Procedure , Man. Reg. 150/88 (the Rules of Procedure ). 7 The provisions of the Rules of Procedure that are pertinent to this appeal 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 . No prima facie case for granting 8 Where the board is not 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 may do one or more of the following: (

a) direct the document control officer to advise the applicant that the board is prepared to publish a notice in Form 7 describing an operation authority in more limited terms than that sought in the application and to request the consent of the applicant to an appropriate amendment of the application; (

b) direct the document control officer to advise the applicant that the board will further consider the application upon receipt of further or more complete support evidence; or (

c) deny the application. Review committee

54 All applications for review under this Part shall be heard and determined by a review committee comprised of not less than fivemembers of the board designated by the Chairman. Application for review 55 Subject to

section 57, any party to a decision or order of the board may within 60 days of the date of the decision or order sought tobe reviewed or such further period as the board may order, apply to the board for review of the decision or order by (

a) filing an application for review with the secretary containing: (

i) a statement of the background facts of the proceedings under review; (ii) a statement of the grounds upon which the application is made; (iii) detailed argument in support of such grounds; and (iv) a statement of the relief sought upon the review; and (

b) paying the prescribed fee. 8 The appellant was given leave to appeal 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 anexpanded operating authority, in accordance with the Rules of Procedure? 9 At the hearing of the appeal, the Board, through its counsel, took the position that the Board had accepted theapplication pursuant to s. 5(1) of the Rules of Procedure and had dealt with it pursuant to s. 8 by denying the application. 10 As well, it was submitted that the Board had the implied jurisdiction, as do all administrative tribunals, to control theirown process.

The argument advanced was that the December 2010 application was, in essence, the same as both the first application,which had been denied by the Board by its decision of November 17, 2009, and the second application which had been dismissed by theBoard on April 30, 2010.

In counsel’s submission, the filing of the third application amounted to an abuse of process which the Boardwas entitled to deal with summarily pursuant to s. 8 of its Rules of Procedure. 11 As to the request for review, the Board was entitled to summarily dismiss it without hearing from the appellant, giventhat it had not accepted the application for processing. 12 There is no doubt that factual decisions of the Board, decisions within its area of expertise, and

interpretations of itsown statute and Rules of Procedure, will be reviewed by this court on a standard of reasonableness (see Alberta (Information andPrivacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654). 13 However, allegations of a breach of procedural fairness require the court to assess whether the rules of proceduralfairness or the duty of fairness have been adhered to. If not, then the breach is an error of law and the standard of correctness applies. (See London (City) v.

Ayerswood Development Corp. et al. (2002), (ON CA), 167 O.A.C. 120, and 2127423Manitoba Ltd. o/a London Limos v. Unicity Taxi Ltd. et al., 2012 MBCA 75 at paras. 11-12.) 14 With respect to the December 2010 application, the Board did not perform the function it was required to do under ss.5(1), 7 and 8 of its Rules of Procedure, namely, accept the application for filing and review the material filed by the appellant to assesswhether it met the threshold that, in the absence of evidence to the contrary, required that the application be granted.

It would appearfrom the correspondence that the Board summarily rejected the application in the view that it was, for all intents and purposes, the sameas the applications previously filed. The fact that it returned the application to the appellant with the filing fee suggests that it did notaccept the documents for filing under s. 5(1) as it was required to do.

Having rejected the application for filing, the Board could nothave met its statutory obligations under ss. 7 and 8 to properly assess the evidence contained in the material filed. 15 While we do recognize the implied authority of a tribunal to control its own procedure and, where appropriate, to take

steps to prevent abuses, it is necessary that this be done in accordance with procedural fairness (see Prassad v. Canada (Minister ofEmployment and Immigration), (SCC), [1989] 1 S.C.R. 560, and Bremsak v. Professional Institute of the PublicService of Canada, 2012 FCA 91, 432 N.R. 351). In the circumstances of this case, that required giving the appellant the ability torespond in a meaningful fashion to the suggestion that its attempt to file a third application amounted to an abuse of the Board’sprocedures.

Neither at the stage of the rejection of its application, nor at the request for review, was the appellant informed that itsapplication was being dismissed on grounds that it constituted an abuse of the Board’s process.

The appellant should have been given anopportunity to address the concern that its application was a duplicate and to explain how it differed from its original application in 2009. 16 For these reasons, we are of the view that the appellant should be allowed to resubmit its application along with theappropriate filing fee, and that the Board should process it in accordance with its Rules of Procedure. 17 Pursuant to s. 283 of the Act, appeals from any final order or decision of the Board are governed by s. 58 of The PublicUtilities Board Act, C.C.S.M., c.

P280, and, therefore, in accordance with s. 58(5), which requires this court to certify its opinion to theBoard, we are of the opinion that the Board was in error when it rejected the appellant’s application of December 2010 and that theBoard should accept a resubmitted application under s. 5(1) and process it according to ss. 7 and 8 of its Rules of Procedure. 18 The appellant sought costs against the Board. Under s. 58(8) of The Public Utilities Board Act, the Board is not liablefor costs with respect to appeals or applications. J.A. I agree: J.A. I agree: J.A.