Lindsay and Smith v. Motor Transport Board (Man.) et al., (1989) 60 Man.R.(2d) 1 (CA)

• Court: Court of Appeal (Manitoba)
• Case Date: September 08, 1989
• Jurisdiction: Manitoba
• Citations: (1989), 60 Man.R.(2d) 1 (CA)

Lindsay v. Motor Transport Bd. (1989), 60 Man.R.(2d) 1 (CA)

MLB headnote and full text

Robert Lindsay, O/A R.L. Trucking, Winnipeg, Manitoba (appellant) v. The Motor Transport Board of Manitoba (respondent) and Reimer Express Lines Inc., Atomic Transport Inc., Atomic Transfer Ltd., Arnold Bros. Transport Ltd. and Transx Ltd. (corporate respondents)

(Suit No. 4/89)

George Smith (appellant) v. The Motor Transport Board of Manitoba (respondent) and Reimer Express Lines Inc., Atomic Transport Inc., Atomic Transfer Ltd., Arnold Bros. Transport Ltd. and Transx Ltd. (corporate respondents)

(Suit No. 15/89)

Indexed As: Lindsay and Smith v. Motor Transport Board (Man.) et al.

Manitoba Court of Appeal

Philp and Twaddle, JJ.A., and Barkman, J.(ad hoc)

September 8, 1989.

Summary:

Two motor carriers appealed from decisions of the Motor Transport Board (Man.) respecting their applications for extra-provincial carrier licences. The Board in ruling that the carriers' undertaking would likely be detrimental to the public interest considered the cumulative effect of the many similar concurrent applications pending.

The Manitoba Court of Appeal (Barkman, J. (ad hoc), dissenting) allowed the appeal and held that the Board erred in considering the cumulative effect of other applications.

Carriers - Topic 1567

Licensing - Considerations - Similar concurrent applications - The Manitoba Motor Transport Board on applications by two carriers for extra-provincial licences considered the cumulative effect of the many similar concurrent applications pending (if allowed) in ruling that the applicant's undertaking would likely be detrimental to the public interest even though each application taken alone would not - The Manitoba Court of Appeal held that the Board improperly considered the cumulative effect of the other outstanding applications - The court held that the Board was wrong to state that what was the public interest was a matter of policy entirely within its jurisdiction; rather, what was the public interest was in the Board's discretion, but must be supported by the evidence.

Carriers - Topic 1569

Licensing - Considerations - Detriment to public interest - [See Carriers - Topic 1567 above].

Cases Noticed:

Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147, consd. [para. 24].

Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425, consd. [para. 24].

Funk v. Manitoba Labour Board, [1976] 3 W.W.R. 209 (Man. C.A.), consd. [para. 24].

International Union of United Automobile Aerospace and Agricultural Workers of America (U.A.W.), Local 720 v. Volvo Canada Ltd., [1980] 1 S.C.R. 178; 27 N.R. 502; 33 N.S.R.(2d) 22; 57 A.P.R. 22; 99 D.L.R.(3d) 193, consd. [para. 25].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 97 D.L.R.(3d) 417; 79 C.L.L.C. 14,209, consd. [para. 26].

Ontario Public Service Employees Union v. Forer et al. (1985), 12 O.A.C. 1; 23 D.L.R.(4th) 97, consd. [para. 28].

Purolator Courier Ltd. v. Motor Transport Board of Manitoba (1980), 3 Man.R.(2d) 107, revd. [1981] 2 S.C.R. 364; 38 N.R. 465; 12 Man.R.(2d) 61, consd. [para. 29].

Canadian Pacific Ltd. v. Canadian Transport Commission (1987), 79 N.R. 13 (F.C.A.), consd. [para. 30].

C.T.C. Dealer Holdings Limited v. Ontario Securities Commission (1987), 21 O.A.C. 216; 23 Adm. L.R. 285 (Ont. Div. Ct.), consd. [para. 30].

Worldways Airlines Ltd. v. Canadian Transport Commission, [1976] 1 S.C.R. 751; 4 N.R. 579, appld. [para. 39].

Statutes Noticed:

Highway Traffic Act, S.M. 1985-86, c. 3; C.C.S.M., c. H-60, sect. 283 [para. 27]; sect. 290(2) [para. 3].

Motor Vehicle Transport Act, R.S.C. 1985, c. M-12, sect. 3(2) [para. 3].

Motor Vehicle Transport Act, S.C. 1987, c. 35, sect. 8 [paras. 4, 56]; sect. 34 [para. 5].

Public Utilities Board Act, R.S.M. 1987, c. P-280; C.C.S.M., c. P-280, sect. 58 [para. 27]; sect. 58(8) [para. 48].

Counsel:

R.D. Gripp and R.P. Sokalski, for the appellant Robert Lindsay;

W.G. Ryall, for the appellant, George Smith;

T.D. Gisser, for the respondent, Motor Transport Board of Manitoba;

J.E. Foran, Q.C., and M.M. Monnin, for the corporate respondents.

This case was heard at Winnipeg, Manitoba, before Philp and Twaddle, JJ.A., and Barkman, J. (ad hoc), of the Manitoba Court of Appeal.

On September 8, 1989, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Philp, J.A. - see paragraphs 1 to 48;

Twaddle, J.A. - see paragraph 49;

Barkman, J. (ad hoc), dissenting - see paragraphs 50 to 64.