City of Hamilton v. Canada (Transport Commission) et al., [1978] 1 SCR 640

Supreme Court of Canada

City of Hamilton v. Canada (Transport Commission) et al., [1978] 1 S.C.R. 640

Date: 1977-09-30

The Corporation of the City of Hamilton (Plaintiff) Appellant;

and

The Canadian Transport Commission, Motorways (Ontario Limited and Soo-Security Motorways Limited (Defendants) Respondents.

1977: March 29; 1977: September 30.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson & Beetz JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Judicial review—Order of C.T.C. permitting long distance trucking operations on Sunday—Evidence—Exclusion of evidence—Relevance of evidence—Interpretation—Object of statute—Lord’s Day Act, R.S.C. 1970, c. L-13, ss. 4, 11 (x).

Respondent companies, common carriers’ jointly operating a trucking service between Montreal and Vancouver, applied, in respect of their “long haul” operations, to the C.T.C. for exemption from the operation of the Lord’s Day Act, R.S.C. 1970, c. L-13, and restricted the request to the operation of a specific number of tractor-trailer units. Certain of the routes passed through the City of Hamilton. The City intervened and sought to show that the operation by the carriers through the city would cause congestion, noise and pollution and create safety problems. The C.T.C. excluded the evidence as irrelevant to the issue which it was called upon to determine under s. 11 (x) of the Act and granted the carriers’ application. The City’s subsequent appeal to the Federal Court of Appeal was dismissed.

Held: The appeal should be dismissed.

The object of the Lord’s Day Act is to prevent persons from engaging in gainful work, business or labour on Sundays and it is that object which the C.T.C. must keep in mind when dealing with applications under s. 11(x) for exemption from the operation of s. 4 with the object of preventing undue delay in connection with the freight traffic of a transportation undertaking. The Act does not purport to regulate the conduct of individuals so as to prevent their interfering with Sunday observance by others. The C.T.C. was not therefore required or authorised to conduct any general inquiry into the impact of the envisaged trucking operations on the citizenry of Hamilton.

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Minister of Transportation and Communications (Ont.) v. C.T.C. et al., [1974] 2 F.C. 164 referred to.

APPEAL from a judgment of the Federal Court of Appeal dismissing an appeal from a decision of the Canadian Transport Commission excluding certain evidence as irrelevant and granting an application under s. 11(x) of the Lord’s Day Act. Appeal dismissed.

G.J. Smith, Q.C., and Bryan Finlay, for the appellant.

C.D. MacLeod, and M.L. Madras, for the respondents.

D.W. Burtnick, for the intervenant, The Minister of Transportation & Communications, Government of Ontario.

The judgment of the Court was delivered by

MARTLAND J.—The respondents, Motorways (Ontario) Limited and Soo-Security Motorways Limited (hereinafter referred to as “Carriers”) are common carriers, who jointly operate an over-the-road trucking service between Montreal and Vancouver in both directions. In respect of their “long haul” operations they applied, pursuant to s. 11(x) of the Lord’s Day Act, R.S.C. 1970, c. L-13, (hereinafter referred to as “the Act”) to the Canadian Transport Commission for exemption from the operation of that Act which, without such exemption, would have prohibited such operations on Sundays. Section 11(x) provides:

11. Notwithstanding anything herein contained, any person may on the Lord’s Day do any work of necessity or mercy, and for greater certainty, but not so as to restrict the ordinary meaning of the expression “work of necessity or mercy”, it is hereby declared that it shall be deemed to include the following classes of work:

…

(x) any work that the Canadian Transport Commission, having regard to the object of this Act, and with the object of preventing undue delay, deems necessary to permit in connection with the freight traffic of any transportation undertaking.

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The request for exemption was restricted to the operation of a specific number of units (tractor plus trailer).

Certain of the routes to be followed passed through the City of Hamilton (hereinafter referred to as “City”). At the hearing before the Commission, the City intervened and sought, by cross‑examination and by the introduction of evidence, to show that the operation of the Carriers through the City would cause congestion, noise and pollution and create safety problems. The Ministry of Transportation and Communications of the Government of Ontario, also an intervenant, supported the position of the City. The Commission excluded such evidence as being irrelevant to the issue which it was called upon to determine under s. 11(x). The application of the Carriers was granted.

The City applied to the Federal Court of Appeal pursuant to s. 28 of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), to set aside the decision and also applied, pursuant to s. 64(2) of that Act [and of s. 64(2) of the National Transportation Act] for leave to appeal from the decision. The Federal Court of Appeal upheld the decision of the Commission, being of the view that the case was governed by the earlier decision of that Court in Minister of Transportation and Communications for the Province of Ontario v. The Canadian Transport Commission, Reimer Express Lines Ltd. and Imperial Roadways Ltd.[1]

The ground taken by the City for contending that there had been an error of law on the part of the Federal Court of Appeal and the Commission is that the object of the Act is to preserve the sanctity of Sunday and to provide a day of quiet and that when para. (x) of s. 11 uses the words “having regard to the object of this Act” the Commission is bound to consider evidence as to matters which might affect the peace and quiet of a Sunday.

This appeal involves a determination of the “object of the Act” to which the Commission must have regard in making its decision. It is necessary to consider the Act as a whole in order to make that determination. Its general purpose is to main-

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tain Sunday observance, and it is because of that that its constitutional validity has been supported as being legislation in relation to criminal law under s. 91(27) of the British North America Act. That purpose is, however, sought to be achieved by preventing the transaction of business, the pursuing of a gainful calling, or the employment of any person to do work, business or labour on a Sunday.

The key section, which spells out the object of the Act, is s. 4, which provides:

4. It is not lawful for any person on the Lord’s Day, except as provided herein, or in any provincial Act or law in force on or after the 1st day of March 1907, to sell or offer for sale or purchase any goods, chattels, or other personal property, or any real estate, or to carry on or transact any business of his ordinary calling, or in connection with such calling, or for gain to do, or employ any other person to do, on that day, any work, business, or labour.

Section 5 provides that an employee required to work on a Sunday, inter alia, in connection with transportation, shall be entitled to a twenty-four hour holiday on one of the next six days of the week.

Section 6 forbids, except as provided by provincial law, engaging in or being present at a public game or contest for gain, prize or reward on Sunday and forbids providing, engaging in or being present at a performance, on Sunday, where a fee is charged.

Section 7 forbids, subject to the same proviso, Sunday excursions for amusement or pleasure where a fee is charged.

Section 8 forbids the advertising of performances forbidden by the Act.

Section 9 forbids the shooting of a firearm for gain or in a manner or place which would disturb persons attending public worship, or in the observance of Sunday.

Section 10 forbids the sale or distribution in Canada of foreign newspapers.

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All of these sections from s. 6 to s. 10, other than s. 9, have to do with forms of business activity for gain.

Section 9 is the only one dealing with interference with public worship or Sunday observance and it is specifically limited to the case of a person shooting firearms.

Section 11 then provides that notwithstanding anything contained in the Act persons are authorized on Sundays to do “any work of necessity or mercy”, which words are deemed to include various kinds of work defined in paras. (a) to (x). This case is concerned with the kind of work defined in para. (x), previously quoted.

In my opinion, the object of the Act is to prevent persons from engaging in gainful work, business or labour on Sundays. It is that object which the Commission must keep in mind. It is significant that the opening words of s. 11(x) are “any work”. The Commission, bearing in mind that the object of the Act is to prevent Sunday work, may, nonetheless, exempt from the operation of s. 4 “any work”, with the object of preventing undue delay, which the Commission deems necesary to permit, in connection with the freight traffic of a transportation undertaking.

The Act does not purport to regulate the conduct of individuals so as to prevent their interfering with the sanctity of Sunday, or with Sunday observance by others. The provisions making it unlawful to provide or be present at public games or public performances on a Sunday apply only if the public game is for gain, prize or reward or a fee is charged for admission to the performance. Similarly with respect to Sunday excursions, it is only if they are operated for hire that they are forbidden. This emphasizes the fact that the purpose of the Act is not to protect Sunday observance from the conduct of others. The Act seeks to obtain Sunday observance by persons by prohibiting them from engaging in a gainful occupation or employment on that day.

In my opinion the only issue to be determined by the Commission under para. (x) was whether,

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having regard to that object, the employees of the Carriers should be exempted from the prohibition against their working on Sunday with the object of preventing undue delay in connection with the freight traffic of the Carriers. This was its limited mandate under that paragraph. It was not required or authorized to conduct a general inquiry into the impact upon the citizens of Hamilton of Sunday trucking operations.

In my opinion the appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellant: Weir & Foulds, Toronto.

Solicitor for the respondents, Motorways (Ontario) Limited and Soo-Security Motorways Limited: C. Douglas MacLeod, Toronto.

Solicitor for the respondent, The Canadian Transport Commission: W.G. St. John, Ottawa.

Solicitor for the intervenant, The Ontario Ministry of Transportation and Communications: D.W. Burtnick, Downsview.