The Queen v. Smith, [1972] SCR 359

Supreme Court of Canada

The Queen v. Smith, [1972] S.C.R. 359

Date: 1971-10-05

Her Majesty the Queen Appellant;

and

George Smith Respondent.

1971: May 17, 18; 1971: October 5.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ALBERTA

Constitutional law—Licence to operate extra-provincial undertaking—Power of provincial trans-port Board to impose terms and conditions—Practice of Board different in respect of local undertakings—Practice need not be identical—Motor Vehicle Transport Act, 1953-54 (Can.), c. 59, s. 3(2)—Public Service Vehicles Act, R.S.A. 1955, c. 265.

The respondent was convicted on two charges of operating an extra-provincial undertaking contrary to the operating authority certificate issued by the Alberta Highway Traffic Board, and contrary to the provisions of the Motor Vehicle Transport Act, 1953-54 (Can.), c. 59. The respondent’s certificate was restricted to certain food products, grains and seeds and did not permit the transportation of shrubs and trees, as was done in this case. The practice of the Board is to impose on extra-provincial undertakings restrictions which are not imposed in fact on local undertakings. A case was stated to the Appellate Division, which allowed the appeal and

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quashed the convictions. The Crown was granted leave to appeal to this Court.

Held: The appeal should be allowed and the convictions restored.

The Motor Vehicle Transport Act, as a matter of federal legislation, empowers the Board, when issuing a licence to an extra-provincial undertaking, to impose any terms and conditions which it has power to impose in respect of a licence for a local undertaking under the Public Service Vehicles Act, irrespective of whether or not it is in the practice of imposing such terms and conditions in respect of local undertakings. Section 3(2) of the federal Act is to be construed as meaning that Parliament has given the power to regulate extra-provincial undertakings to provincially constituted boards, and, in defining that power, has adopted, as its own legislation, in each province to which the Act applies, the legislation of that province as it may exist from time to time. Its purpose was to define the powers of the Board, when acting under the federal Act, as being co-extensive with its powers under the provincial legislation. The provision was not intended to limit those powers by requiring that the practice of the Board, in the exercise of its powers, be identical under both statutes.

Coughlin v. Ontario Highway Transport Board, [1968] S.C.R. 569, applied.

APPEAL from a judgment of the Appellate Division of the Supreme Court of Alberta[1], quashing the convictions of the respondent on charges of operating an extra-provincial undertaking contrary to the operating authority certificate. Appeal allowed.

B.A. Crane, for the appellant.

A.G. Macdonald, Q.C., for the respondent.

The judgment of the Court was delivered by

MARTLAND J.—This is an appeal from the judgment of the Appellate Division of the Supreme Court of Alberta¹ pursuant to leave granted by this Court.

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The respondent is a resident of Manitoba who operates a trucking business throughout the Western Provinces and United States. On May 6, 1970, a truck belonging to the respondent was hauling shrubs and small trees from Yarrow, British Columbia, through Alberta en route to Saskatchewan. The truck was stopped near Canmore, Alberta, and the respondent was charged that

on the 6th day of May A.D., 1970 at or near Canmore, in the Province of Alberta, being the owner of a motor vehicle bearing licence number H00729 did unlawfully operate an extra provincial undertaking contrary to the operating authority certificate number 0620 issued by the Alberta Highway Traffic Board contrary to the provisions of the Motor Vehicle Transport Act of Canada.

A similar charge was laid with respect to another vehicle stopped on May 7, 1970.

The relevant sections of The Motor Vehicle Transport Act, 1953-54 (Can.), c. 59 (hereinafter referred to as “the Federal Act”) are as follows:

2. In this Act,

(b) “extra-provincial undertaking” means a work or undertaking for the transport of passengers or goods by motor vehicle, connecting a province with any other or others of the provinces, or extending beyond the limits of a province;

* * *

(d) “law of the province” means a law of a province or municipality not repugnant to or inconsistent with this Act;

* * *

(g) “local undertaking” means a work or undertaking for the transport of passengers or goods by motor vehicle, not being an extra-provincial undertaking;

(h) “provincial transport board” means a board, commission or other body or person having under the law of a province authority to control or regulate the operation of a local undertaking.

3. (1) Where in any province a licence is by the law of the province required for the operation of a local undertaking, no person shall operate an extra-

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provincial undertaking in that province unless he holds a licence issued under the authority of this Act.

(2) The provincial transport board in each province may in its discretion issue a licence to a person to operate an extra-provincial undertaking into or through the province upon the like terms and conditions and in the like manner as if the extra-provincial undertaking operated in the province were a local undertaking.

* * *

6. (1) Every person who violates any provisions of this Act or who fails to comply with any order or direction made by a provincial transport board under the authority of this Act is guilty of an offence and is liable on summary conviction to a fine of one thousand dollars or to imprisonment for a term of one year or to both fine and imprisonment.

The respondent’s operating authority certificate was issued on March 18, 1970, by the Highway Traffic Board of Alberta (hereinafter referred to as “the Board”), which is a provincial transport board as defined by the Federal Act. The respondent applied for an amendment to this certificate with respect to fruits and vegetables and an amended certificate was issued April 23, 1970.

The certificate was restricted to certain food products, grains and seeds. It did not permit the transportation of shrubs and trees. It was conceded at the trial that if the restrictions on the certificate were valid the respondent was in breach thereof.

The respondent holds a Public Service Vehicle licence in and operates out of the Province of Manitoba. The Manitoba licence is filed with the Board. This licence prescribed certain routes and conditions as authorized by the Highway Motor Transport Board of Manitoba.

R.T. Lawson, Assistant Secretary of the Board, gave evidence as to its practice. In order to obtain an operating authority certificate to permit the carriage of goods through Alberta an extra-provincial carrier must submit an application to the Board. Thereupon the Board decides whether or not to

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grant the application in the light of public convenience and necessity. If the application is denied, a public hearing can be requested.

In addition to the operating authority certificate, an extra-provincial carrier is issued with a licence plate and a registration certificate.

An Alberta trucker who operates a local undertaking would be issued with a Public Service Vehicle licence (“P.S.V.”) for general commodities, a Public Service Vehicle licence (“U.”) for general commodities hauled within a five-mile radius of the place of registration, or a Public Service Vehicle licence (“E”) for uninsured commodities such as sand and gravel. There are other categories of licences for vehicles engaged in the carriage of passengers or in other commercial undertakings.

An Alberta trucker who is engaged in hauling commodities within Alberta is issued with a licence plate and a registration certificate on which is stamped a description of the commodities for which he carries insurance. It is not the practice of the Board to restrict licences issued to local truckers who carry general commodities (which class includes food‑stuffs and shrubs and trees) as to the particular commodities they may carry or the routes to be followed. Such truckers are issued with a licence that is restricted only by the description of the goods for which the trucker has produced proof of insurance. Such a Public Service Vehicle licence is customarily issued in a routine way at a licence counter after the local trucker has paid a fee and submitted proof of insurance. There is no hearing and no consideration of such an application by the Board.

The respondent was convicted on each of the charges. A case was stated to the Appellate Division, which allowed the appeal and quashed the convictions. From that judgment the appellant has appealed to this Court.

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The judgment at trial was based upon the following grounds, as stated by the magistrate in the case stated to the Appellate Division:

(a) that the Board had the power to limit the authority to transport goods granted George Smith for his extra-provincial undertaking;

(b) that the said Board also had the power to limit in similar manner the authority of local un-undertakings to transport goods;

(c) that:

“In my opinion it is not necessary to show that the same or similar powers have been exercised in relation to a local trucker. The same powers may be exercised in relation to local or extra provincial undertakings and there is no definite restriction on its power to act.”

and that:

“The important consideration is that the Board has wide discretionary powers to regulate extra provincial undertakings in the same manner as it has wide discretionary powers to regulate local undertakings but this does not mean that the Board must exercise those powers in respect of either undertaking at the same time and on the same terms.”

The reasons of the Appellate Division are summarized in the following passage:

Thus, the Board in its provincial jurisdiction has the power to make restrictions on a local undertaking of the kind here under discussion. On the facts given in evidence it has not exercised that jurisdiction beyond requiring proof of inland transportation insurance coverage for whatever commodities a local undertaking may wish to transport. I am of opinion that the Board exceeded its federal jurisdiction in imposing on Smith restrictions which are not imposed in fact on local undertakings.

The issue is, therefore, whether, under s. 3(2) of the Federal Act, a provincial transport board, on the issue of a licence to a person to operate an extra-provincial undertaking, has the power to impose terms and conditions which, under provincial legislation governing local undertakings, it has the power to impose in respect of a licence for the

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operation of such local undertaking, or whether it can only impose such terms and conditions upon the extra-provincial undertaking if it, in fact, does exercise such power when issuing licences to local undertakings.

To put the issue in another way, do the words in s. 3(2) of the Act “upon the like terms and conditions and in the like manner as if the extra-provincial undertaking operated in the province were a local undertaking” mean that the Federal Parliament was clothing its licence‑issuing authority, in respect of federal licences, with the same legal powers as it possessed, as a provincial authority, under the provincial legislation which created it, or that the Federal Parliament intended to restrict the power to impose terms and conditions in a federal licence to those terms and conditions which it is in the practice of imposing in respect of the licences issued by it as a provincial board in respect of local undertakings?

Assistance in determining this question is to be found in the case of Coughlin v. The Ontario Highway Transport Board[2], in which the constitutional validity of the Federal Act was challenged on the ground that it constituted an unlawful delegation by Parliament to provincial legislatures to legislate in respect of a matter within the legislative jurisdiction of Parliament. The statute was held to be intra vires of Parliament, and Cartwright J. (as he then was), delivering the reasons of the majority of this Court, considered the purpose, nature and effect of this legislation. I quote the following passages:

From the above brief review of the relevant legislation it will be seen that as matters stand at present the question whether a person may operate the undertaking of an inter-provincial carrier of goods by motor vehicle within the limits of the Province of Ontario is to be decided by a Board constituted by the provincial legislature and which must be guided in the making of its decision by the terms of the statutes of that legislature and the regulations passed thereunder as they may exist from time to time.

* * *

It is well settled that Parliament may confer upon a provincially constituted board power to regulate

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a matter within the exclusive jurisdiction of Parliament. On this point it is sufficient to refer to the reasons delivered in the case of P.E.I Potato Marketing Board v. H.B. Willis Inc., (1952), 2 S.C.R. 392, (1952) 4 D.L.R. 146.

In the case before us the respondent Board derives no power from the Legislature of Ontario to regulate or deal with the inter-provincial carriage of goods. Its wide powers in that regard are conferred upon it by Parliament. Parliament has seen fit to enact that in the exercise of those powers the Board shall proceed in the same manner as that prescribed from time to time by the Legislature for its dealings with intra-provincial carriage….

In my opinion there is here no delegation of lawmaking power, but rather the adoption by Parliament, in the exercise of its exclusive power, of the legislation of another body as it may from time to time exist, a course which has been held constitutionally valid by this Court in Attorney General for Ontario v. Scott, (1956) S.C.R. 137, 114 C.C.C. 224, 1 D.L.R. (2d) 433, and by the Court of Appeal for Ontario in Regina v. Glibbery, (1963) 1 O.R. 232, (1963) 1 C.C.C. 101, 38 C.R. 5, 36 D.L.R. (2d) 548.

In summary, these passages construe the Federal Act as meaning that Parliament has given the power to regulate extra-provincial undertakings to provincially constituted boards, and, in defining that power, has adopted, as its own legislation, in each province to which the Act applies, the legislation of that province as it may exist from time to time. In my opinion this is the proper construction of s. 3(2) of the Federal Act. Its purpose was to define the powers of the Board, when acting under the Federal Act, as being co-extensive with its powers under the provincial legislation. The provision was not intended to limit those powers by requiring that the practice of the Board, in the exercise of its powers, be identical under both statutes.

When, therefore, the Board considered the issuance, under the Federal Act, of a licence to the respondent, as an extra-provincial undertaking, operating in Alberta, its powers, as a Federal

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Board, were those contained in the relevant Alberta statute, The Public Service Vehicles Act, R.S.A. 1955, c. 265, as amended, and the regulations enacted pursuant thereto.

Both the learned magistrate at trial and the Appellate Division have found that the Board, in its provincial jurisdiction, has power to make restrictions on a local undertaking of the kind in question here. With this I agree. Reference need only be made to the power of the Board to make regulations, under ss. 11 and 14 of the provincial Act, and to Regulation 1.5.5, which provides that:

Public Service Vehicle certificates may, at the discretion of the Board, confine the operator to the carrying of certain specified commodities only.

My conclusion is that the Federal Act, as a matter of federal legislation, empowered the Board, when issuing a licence to an extra-provincial undertaking, to impose any terms and conditions which it had power to impose in respect of a licence for a local undertaking under The Public Service Vehicles Act, irrespective of whether or not it was in the practice of imposing such terms and conditions in respect of local undertakings.

In my opinion the appeal should be allowed, the judgment of the Appellate Division should be set aside and the convictions should be restored. There should be no costs payable in this Court or in the Appellate Division.

Appeal allowed.

Solicitor for the Appellant: The Attorney General for Alberta, Edmonton.

Solicitors for the respondent: Macdonald, Spitz & Lavallée, Edmonton.