Lundrigans Ltd., Re, (1976) 10 Nfld. & P.E.I.R. 520 (NFCA)

JudgeFurlong, C.J.N., Mifflin and Noel, JJ.
CourtNewfoundland Court of Appeal
Case DateMay 02, 1975
JurisdictionNewfoundland and Labrador
Citations(1976), 10 Nfld. & P.E.I.R. 520 (NFCA)

Lundrigans Ltd., Re (1976), 10 Nfld. & P.E.I.R. 520 (NFCA);

    17 A.P.R. 520

MLB headnote and full text

Re Lundrigans Limited and Board of Commissioners of Public Utilities

Indexed As: Lundrigans Ltd. and Board of Commissioners of Public Utilities (Nfld.), Re

Newfoundland Court of Appeal

Furlong, C.J.N., Mifflin and Noel, JJ.

June 11, 1976.

Summary:

This case arose out of an application by Lundrigans Limited for an amendment to its motor carrier certificate to include the right to haul cement. The application was opposed by Peter Cook Limited, which held a certificate which entitled it to haul cement; however, it had not done so. The Public Utilities Board allowed the application of Lundrigans Limited and in its decision stated that Peter Cook Limited had forfeited its right to haul cement by its failure to exercise its right. Peter Cook Limited appealed to the Newfoundland Court of Appeal pursuant to s. 96 of the Public Utilities Act, R.S.N. 1970, c. 322. The Court of Appeal dismissed the appeal. Although each of the judges was of a different opinion, in the result the Court of Appeal held that the board's decision on the application of Lundrigan's Limited was properly made within its jurisdiction and the board's comments on the status of the certificate of Peter Cook Limited were surplusage and of no effect.

Furlong, C.J.N., was of the opinion that only the board's decision on the application of Lundrigans Limited should be considered on the appeal. See paragraphs 1-15.

Mifflin, J., dissenting in the result, would have quashed the order of the Board and was of the opinion that the board had no jurisdiction to rule on the status of the certificate of Peter Cook Limited without notice and a hearing. See paragraphs 16-33.

Noel, J., was of the opinion that the board was within its jurisdiction in finding that Peter Cook Limited had lost its right to haul cement. See paragraphs 34-41.

Carriers - Topic 1706

Statutory regulation of carriers - Licensing - Statutory appeals - Jurisdiction - Question of jurisdiction of a board - Public Utilities Act, R.S.N. 1970, c. 322, s. 96 - The applicant applied for an amendment to its motor carrier licence to include a right to haul cement - The intervenor, which held a licence to haul cement but had not done so, intervened - The Public Utilities Board granted the amendment - The Newfoundland Court of Appeal held that the order was properly made within the board's jurisdiction and should not be disturbed - Paragraphs 1-15.

Carriers - Topic 1744

Statutory regulation of carriers - Licensing - Revocation of licence - Right to hearing - The applicant applied for an amendment to its motor carrier licence to include the right to haul cement - The intervenor, which held a licence to haul cement but had not done so, intervened - The board allowed the application and in its decision stated that the intervenor had forfeited its right to haul cement by not exercising its right to do so - The Newfoundland Court of Appeal held that the board had only the jurisdiction to consider the applicant's application and could not deal with the status of the intervenor's licence without notice and a hearing - The Court of Appeal held that the board's comments on the status of the intervenor's licence were surplusage and of no effect - Paragraphs 7-13 and 16-32.

Statutes Noticed:

Motor Carrier Act, R.S.N. 1970, c. 242, sect. 9, sect. 10, sect. 11 [para. 22].

Public Utilities Act, R.S.N. 1970, c. 322, sect. 96 [para. 20].

Counsel:

T. O'Reilly, for the intervenor-appellant;

P. Althouse, for the applicant-respondent;

E. Facey, for the respondent.

This case was heard on May 2, 1975, at St. John's, Newfoundland, before Furlong, C.J.N., Mifflin and Noel, JJ., of the Newfoundland Supreme Court, Court of Appeal. On June 11, 1976, the judgment of the Court of Appeal was delivered and the following opinions were filed:

FURLONG, C.J.N., - see paragraphs 1 - 15,

MIFFLIN, J., [dissenting] - see paragraphs 16 - 33,

NOEL, J., - see paragraphs 34 - 41.

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