Northland Fisheries Ltd. v. Motor Transport Board (Man.) et al., (1981) 13 Man.R.(2d) 132 (CA)

• Judge: Freedman, C.J.M., Matas and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 25, 1981
• Jurisdiction: Manitoba
• Citations: (1981), 13 Man.R.(2d) 132 (CA)

North. Fisheries v. Motor Trans. (1981), 13 Man.R.(2d) 132 (CA)

MLB headnote and full text

Northland Fisheries Ltd. v. Motor Transport Board, Gardewine & Sons Limited, Swan River-The Pas Transfer Ltd. and Paul's Hauling Ltd.

Indexed As: Northland Fisheries Ltd. v. Motor Transport Board (Man.) et al.

Manitoba Court of Appeal

Freedman, C.J.M., Matas and Huband, JJ.A.

November 25, 1981.

Summary:

Northland Fisheries Ltd. filed a notice of motion for a declaration on whether its existing hauling licence permitted it to continue to transport freight to Norway House and Cross Lake. Northland's licence entitled it to haul on certain permanent highways and connecting winter roads. The issue was whether the roads to Norway House and Cross Lake were still winter roads or whether they had become permanent roads. The Manitoba Court of Queen's Bench in a judgment unreported in this series of reports dismissed Northland's application on a preliminary objection on the ground that the Board had not taken any disciplinary action against Northland for continuing to use the roads. Northland appealed.

The Manitoba Court of Appeal allowed the appeal and agreed to consider the case on the merits, but ruled that the roads were no longer winter roads and Northland was not entitled to use them.

For previous decisions of the Manitoba Court of Appeal respecting the same parties, see 2 Man.R.(2d) 15 and 5 Man.R.(2d) 100.

Carriers - Topic 1632

Licencing - The licence - Conditions - Scope of - Variation of road conditions - A carrier was licenced to haul on certain permanent roads and connecting winter roads - After issuance of the licence certain of the winter roads became permanent roads - The Manitoba Court of Appeal held that, when the winter roads became permanent, the carrier was no longer entitled to use them - See paragraphs 19 to 31.

Practice - Topic 9136

Appeals - Hearing of appeal - Rehearing - When available - The Manitoba Court of Appeal held that an issue discussed in a previous judgment of the Court on the same matter should not be reopened on a subsequent appeal, even if the remarks by the Court in the previous judgment were merely obiter - See paragraphs 9 to 18.

Cases Noticed:

Kloepfer Wholesale Hardware and Automotive Company Limited v. Roy, [1952] 2 S.C.R. 465, refd to. [para. 6].

Gruen Watch Co. of Canada Ltd. et al. v. Attorney General of Canada, [1950] 4 D.L.R. 156 (Ont. H.C.), refd to. [para. 6].

Re Swan River-The Pas Transfer Ltd. et al. and Highway Traffic and Motor Transport Board (1974), 51 D.L.R. (3d) 292, refd to. [para. 7].

Statutes Noticed:

Highway Traffic Act, C.C.S.M., c. H-60, sect. 263(2) [para. 15]; sect. 263(3)(d) [para. 24].

Counsel:

S. Green, Q.C., for the appellant;

W.G. McFetridge, for the Motor Transport Board;

H.K. Irving, Q.C., for Gardewine & Sons Limited and Paul's Hauling Ltd.;

W.G. Ryall, for Swan River-The Pas Transfer Ltd.

This case was heard on October 14, 1981, at Winnipeg, Manitoba, before FREEDMAN, C.J.M., MATAS and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On November 25, 1981, the judgment of the Court of Appeal was delivered and the following opinions were filed:

MATAS, J.A. - see paragraphs 1 to 33;

HUBAND, J.A. - see paragraphs 34 to 36.

FREEDMAN, C.J.M., concurred with MATAS, J.A.