Supreme Court of Canada

National Freight Consultants Inc. et al. v. Motor Transport Board et al., 1980 CanLII 225 (SCC), [1980] 2 SCR 621

Date: 1980-05-06

National Freight Consultants Inc. and National Freight Systems Appellants;

and

Motor Transport Board, Reimer Express (Pacific) Ltd. and Alberta Motor Transport Association Respondents.

1979: October 31, November 1; 1980: May 6.

Present: Ritchie, Pigeon, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA

Carriers—Common carriers—Extraprovincial licence issued by provincial transport board valid—Provincial seizure powers not displaced by federal legislation—Motor Vehicle Transport Act, R.S.C. 1970, c. M-14, ss. 3, 5, 6—The Public Service Vehicles Act, R.S.A. 1970, c. 300, ss. 3, 58.

The Alberta Motor Transport Board issued a licence for the transportation of general cargo from Calgary, Alberta, to the Alberta/British Columbia boundary for furtherance to two points therein specified in the Province of British Columbia. This licence the appellants acquired by a transfer approved by the Alberta Board. The British Columbia Motor Carrier Commission thereafter issued a licence to the appellants authorizing the transportation of certain specified materials and articles from the Vancouver area to the British Columbia/ Alberta boundary. The appellants sought to transport the cargo specified in the Alberta licence from Vancouver to Calgary either under a combination of the two licences or by reason of the Alberta licence alone or by reason of their right at law, untrammelled by the Alberta statute (in the submission of the appellants), to transport interprovincial cargo into and out of the Province of Alberta without reference to the Alberta licensing agency.

In the course of the differences which arose between the parties, the Alberta Board seized some of the appellants’ trucks and cargo transported therein. Proceedings were then instituted by the appellants for a declaration that the actions of the Alberta Board “which purport to affect the operations of the [appellants] in the Province of British Columbia or any jurisdiction outside the Province of Alberta are ultra vires of the [respondent] …”; and “… any action by the [respondent] which

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purports to affect the operations of that part of the [appellants’] business which constitutes the transportation of merchandise which originates in Alberta from Alberta to any other jurisdiction is ultra vires of the [respondent]; and for restraining orders and related relief and remedies.

A further claim was made for damages for seizure of the appellants’ equipment whatever the outcome of the appeal might be with respect to the licensing issue.

The action succeeded at trial. On appeal by the respondent Board to the Appellate Division of the Supreme Court of Alberta, the appeal was allowed. The appellants then appealed to this Court.

Held: The appeal should be dismissed.

Section 3 of the Motor Vehicle Transport Act, R.S.C. 1970, c. M-14, reads:

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-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.

Section 3 should be read as an entity and not as two isolated or unrelated subprovisions. Inside the province the extraprovincial undertaking must hold a licence from the local board sitting as a federally authorized agency under subs. (1). Subsection (2) must be dealing with something additional. If the word “through” is confined to that part of the extraprovincial undertaking “in” the province, then subs. (2) adds nothing to subs. (1). If “into” on the other hand recognizes the existence of that part of the extraprovincial undertaking operating outside the province, for the purpose of ascertaining and licensing the transportation service from its point of origin, then something additional to subs. (1) is introduced into s. 3. If the subsection is read on such a restricted basis as to exclude any authorization in respect of transportation services “out of” the province, an unrealistic result is produced. The provincial board in the discharge of its federal functions may then apply its regulatory authority to all aspects of the transportation of goods by motor vehicles except the extraprovincial transportation of goods which originates in the province.

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It is difficult to understand how the public interest would be ascertained and served in the discharge of its regulatory function if such a board could not extend its activities and its regulatory impact to what would appear to be a very significant, if not the most important, part of the regulations of motor vehicle transport in relation to its provincial community.

Section 3(2) clearly encompasses the licensing of an extraprovincial undertaking operating in, across, into and out of the province whether such transportation service relates to the interprovincial or international carriage of goods. This conclusion was reached in reliance upon the words in subs. (2), that is, “into or through the province”, as well as the definition of an “extra-provincial undertaking” in s. 2 of the Act where that expression is defined as including an undertaking “for the transport … of goods … connecting a province with any other … or extending beyond the limits of a province”.

Accordingly, the extra-provincial licence issued by the Alberta Board was valid.

The claim for damages failed. Section 6(1) of the Motor Vehicle Transport Act, which imposes penalties for a breach of the Act, does not displace the provincial seizure powers under s. 58 of The Public Service Vehicles Act, R.S.A. 1970, c. 300.

Coughlin v. Ontario Highway Transport Board, 1968 CanLII 2 (SCC), [1968] S.C.R. 569; R. v. Smith, 1971 CanLII 171 (SCC), [1972] S.C.R. 359; Attorney General of Ontario v. Winner, 1954 CanLII 289 (UK JCPC), [1954] A.C. 541; Re Kleysen’s Cartage Co. Ltd. and Motor Carrier Board of Manitoba (1965), 1965 CanLII 512 (MB CA), 48 D.L.R. (2d) 716; R. v. Canadian American Transfer Ltd., 1969 CanLII 462 (ON SC), [1970] 1 O.R. 262; Registrar of Motor Vehicles v. Canadian American Transfer Ltd., 1972 CanLII 13 (SCC), [1972] S.C.R. 811; Vancouver-Seattle Bus Lines Ltd. v. Lieutenant-Governor in Council of British Columbia (1963), 1963 CanLII 561 (BC SC), 42 D.L.R. (2d) 82; R. v. Glibbery (1962), 1962 CanLII 229 (ON CA), 36 D.L.R. (2d) 548; R. v. Isaac, 1973 CanLII 651 (ON CA), [1973] 3 O.R. 833, referred to.

APPEAL from a judgment of the Court of Appeal of Alberta¹, allowing an appeal from a judgment of McDonald J. Appeal dismissed.

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T.J. Duckworth, Q.C., and E.N. Vink, for the appellants.

A.P. Hnatiuk and S.G. Fowler, for the respondent Motor Transport Board.

P.G. Ponting, for the respondents, Reimer Express (Pacific) Ltd. and Alberta Motor Transport Association.

The judgment of the Court was delivered by

ESTEY J.—The proceedings giving rise to this appeal originated with a licence issued by the Alberta Motor Transport Board (hereinafter referred to as the Alberta Board) for the transportation of general cargo from Calgary, Alberta, to the Alberta/British Columbia boundary for furtherance to two points therein specified in the Province of British Columbia. This licence the appellants acquired by a transfer approved by the Alberta Board. The British Columbia Motor Carrier Commission (hereinafter referred to as the B.C. Board) thereafter issued a licence to the appellants authorizing the transportation of certain specified materials and articles from the Vancouver area to the British Columbia/Alberta boundary. The appellants seek to transport the cargo specified in the Alberta licence from Vancouver to Calgary either under a combination of the two licences or by reason of the Alberta licence alone or by reason of their right at law, untrammelled by the Alberta statute (in the submission of the appellants), to transport interprovincial cargo into and out of the Province of Alberta without reference to the Alberta licensing agency.

In the course of the differences which arose between the parties the respondents seized the equipment of the appellants and a further claim is made in these proceedings for damages for such seizure whatever the outcome of the appeal may be with respect to the licensing issue.

It should be said at the outset that we are here no longer concerned with any constitutional issue concerning the right of the federal government to

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enact the Motor Vehicle Transport Act by virtue of the decision of this Court in Coughlin v. Ontario Highway Transport Board² and The Queen v. Smith³.

The portion of the Alberta licence here in issue states:

EXTRA PROVINCIAL OPERATING AUTHORITY CERTIFICATE

CERTIFICATE HOLDER National Freight Consultants Inc.

BY VIRTUE OF AUTHORITY VESTED IN THE HIGHWAY TRAFFIC BOARD OF THE PROVINCE OF ALBERTA BY THE MOTOR VEHICLE TRANSPORT ACT (STATUTES OF CANADA) AND THE PUBLIC SERVICE VEHICLES ACT OF ALBERTA BEING CHAPTER 300 R.S.A. 1970, AUTHORITY IS HEREBY GRANTED TO OPERATE PUBLIC SERVICE VEHICLES OUT OF, INTO OR THROUGH THE PROVINCE OF ALBERTA IN EXTRA-PROVINCIAL UNDERTAKINGS FOR THE FOLLOWING PURPOSES AND IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:

[Paragraphs (a) to (e) inclusive are not herein relevant.]

(f) Commodities: General Merchandise.

From: Calgary, Alberta.

To: Alberta/British Columbia boundary for furtherance to Golden and Revelstoke and vice versa.

NOTE: This Operating Authority Certificate expires on June 7th, 1977, and will not be renewed unless equivalent authority is filed from British Columbia, under the new name of National Freight Consultants Inc., prior to June 7th, 1977, a copy of which is to be filed with this Board.

THE AUTHORITY GRANTED BY THIS CERTIFICATE AS IT APPLIES TO ANY ONE JURSIDICTION IS SUBJECT TO THE CONDITION THAT THE HOLDER THEREOF OBTAINS OR HOLDS EQUIVALENT AUTHORITY FROM THAT JURISDICTION.

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THIS AUTHORITY DOES NOT GRANT PERMISSION TO ENGAGE IN ANY FORM OF INTRA-PROVINCIAL OPERATION.

THIS CERTIFICATE PERMITS LOADING OR UNLOADING ONLY AT POINTS DESIGNATED.

THIS CERTIFICATE SHALL NOT BE CAPITALIZED, SOLD, ASSIGNED, LEASED OR TRANSFERRED WITHOUT THE PRIOR WRITTEN APPROVAL OF THE BOARD.

⁴THIS CERTIFICATE EXPIRES, UNLESS OTHERWISE REVOKED OR CANCELLED BY THE BOARD, MIDNIGHT June 7th, 1977.

ISSUED AT EDMONTON, ALBERTA THIS 7TH DAY OF June, 1976.

Shortly thereafter, on June 11, 1976, the Board issued an Intra-Provincial Operating Authority Certificate to the appellants authorizing the transfer of general merchandise “from point to point within the Province of Alberta”.

By its order issued on October 25, 1976, the B.C. Board, purporting likewise to act under both the British Columbia legislation (the Motor Carrier Act, R.S.B.C. 1960, c. 252) and the above‑noted federal legislation, issued to the appellants a licence upon the following terms:

Commodities to be carried:

Building materials including glass and reinforcing steel; machinery and construction equipment, which because of size or weight requires the use of special loading or unloading equipment, or is self-loaded or unloaded under its own power (Charter Trips)

For whom to be carried:

One individual or company only at any one time

Area, route or territory:

From Vancouver and points situated within 45 road-miles of its boundaries transported to the B.C.-Alberta border or vice versa.

Thereafter the appellants were notified by the Alberta Board that it was making “spot checks” in order to determine whether or not the appellants were operating in violation of their Alberta author-

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ization. The initial response of the appellants was to seek an audience with the Alberta Board to discuss its operations under the authorities issued by the two provinces. Ultimately, the Alberta Board notified the appellants, pursuant to The Public Service Vehicles Act, R.S.A. 1970, c. 300, to appear before the Board “to show cause why the Board would not suspend, revoke, alter or amend Alberta Extra-Provincial Operating Authority …”. During the early months of 1977, discussions (oral and by correspondence) took place between the parties culminating in the assertion by the appellants of their right to continue the transportation of goods between Calgary and Vancouver without further or other licences. Consequently, the Alberta Board seized some of the appellants’ trucks and cargo transported therein thus causing the appellants to make arrangements with other truck operators to forward the cargo to its destination. There is little doubt, for what relevance it may have, that the appellants consistently took the view that the Alberta Board had no jurisdiction to prevent the appellants from operating transportation service between Vancouver and Calgary. In fact, the appellants invited the Alberta Board to challenge this, alleged right by laying charges against the appellants, presumably under either the federal or the Alberta statute, or both. The Alberta Board responded by seizing the cargo being transported by the appellants and these proceedings were then instituted by the appellants for a declaration that the actions of the Alberta Board “which purport to affect the operations of the [appellants] in the Province of British Columbia or any jurisdiction outside the Province of Alberta are ultra vires of the [respondent] …”; and “… any action by the [respondent] which purports to affect the operations of that part of the [appellants’] business which constitutes the transportation of merchandise which originates in Alberta from Alberta to any other jurisdiction is ultra vires of the [respondent]”; and for restraining orders and related relief and remedies.

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The issue thus arising is clear: is the effect of the licence issued to the appellant by the Alberta Board to prevent the appellant from transporting the designated cargo between Vancouver and Calgary? The Alberta Board takes the position that the appellants may not transport goods between these two points directly, that is non-stop as it were, or by any combination of loading and unloading of the goods at the intermediate points, Golden and Revelstoke, mentioned in the Alberta licence. The appellants are of the view that the only applicable legislation is, or could be, that of the Parliament of Canada, and such legislation as now exists deals only with international trucking or the intraprovincial transportation of goods relating to an international trucking operation.

The second issue relating to damages I will come to later.

The determination of this issue requires an interpretation of the Motor Vehicle Transport Act, R.S.C. 1970, c. M-14, principally ss. 3 and 5 thereof which read as follows:

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-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.

5. The Governor in Council may exempt any person or the whole or any part of an extra‑provincial undertaking or any extra-provincial transport from all or any of the provisions of this Act.

(Italics added.)

The term “extra-provincial undertaking” and the term “law of the province” as those expressions are employed in s. 3 are defined in s. 2 of the Act as follows:

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“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;

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

The purport of s. 3(1) is the simple prohibition of the operation of an extraprovincial undertaking in Alberta without a licence issued under the authority of the federal Act. Clearly the statute requires that such a licence be obtained from the Alberta Board. But the appellants say that the licence is either unnecessary in law or that it may not dictate the terms upon which the licence may be exercised outside Alberta. The definition of “extra-provincial undertaking” answers the first branch of the argument. Such a work may either connect one province with one or more provinces, or may simply extend beyond the provincial boundaries as in the case of international transport or transport between the provinces and one of the territories. Thus a licence is clearly required by the express terms of s. 3(1).

This carries us to the main contention of the appellants. It is said that the Alberta Board may not, as it has purported to do here, stipulate the points in British Columbia to and from which the appellants may transport cargo. This submission is based on the proposition that the federal statute was enacted in 1953-4 in direct response to the decision of the Privy Council in Attorney General of Ontario et al. v. Winner et al.⁵, a case concerned only with the operation of an international carrier, and hence the statute should be construed as extending only to such activities and not purely interprovincial transportation as is the case here. It is true that the precise circumstances giving rise to the Winner litigation relate to the transportation of passengers between the state of Maine and the provinces of New Brunswick and Nova Scotia, and the related intraprovincial transportation of passengers within New Brunswick. I make but two

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observations on this submission. There is no rule of statutory construction which requires a court to assume that Parliament has intended, regardless of the plain meaning of the words employed in its statute, to have directed its legislative rights only to the issues raised in current and notorious litigation. The Privy Council did indeed direct its attention to the fact that the undertaking of the litigant was a single entity extending as it did into Maine and Nova Scotia and was not severable so as to isolate an intraprovincial segment from the rest of the undertaking. Nowhere does the judgment reveal any principle which would allow a severance of the interprovincial transportation element from the entire undertaking. The undertaking included, in the result, all three elements, and in the result, the Privy Council determined that it must be considered for the purposes of constitutional law as a single, indivisible unit.

This brings us to subs. (2) of s. 3 which authorizes the provincial Board to issue, in its discretion, a licence to operate an extraprovincial undertaking “into or through” the province. Whereas subs. (1) requires an extraprovincial undertaking to obtain a provincial board licence for its operations “in” the province, subs. (2) requires a licence for its extra-provincial operations “into and through” the province. It would take a very imaginative exercise in interpretation to read into these phrases the limitation that they do not include interprovincial as well as international transportation. In fact, the most likely transportation in the mind of the legislator in enacting this statute would be transportation between the provinces.

It has been argued by the appellants that by issuing a licence to them on the terms imposed by the Alberta Board, an agency of the Alberta government has purported to give extraterritorial impact to Alberta legislation. The argument thus extends itself to the construction of s. 3(2) of the federal Act and concludes that the subsection does

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not add to the authority of the Alberta Board under its Alberta statute and hence can give no extraterritorial impact to the Alberta licence. There is support for this concept in the judgment of the Manitoba Court of Appeal in Re Kleysen’s Cartage Co. Ltd. and Motor Carrier Board of Manitoba⁶. The Court was there confronted with a challenge by a trucking concern to the jurisdiction of the Motor Carrier Board of Manitoba which had required a trucker to obtain a Manitoba licence in order to haul cargo from Manitoba to points in the Province of Saskatchewan. The trucker insisted that only a Saskatchewan licence was required for the transportation of the goods in question into Saskatchewan and that the Manitoba authority could only issue a licence for the operation of the transportation service to the Manitoba boundary. In short, it was urged that such a board may issue a licence to transport goods through or into the province but not to transport goods out of the province. The majority of the Court of Appeal, speaking through Guy J.A. at p. 720, construed s. 3(2) of the federal statute as authorizing a provincial board to issue licences only in respect of “an extraprovincial undertaking moving ‘into or through’ a province”, and at p. 721 the judgment concluded:

Viewed in this light, it is apparent that while a trucking undertaking is required to obtain a Public Service Vehicle Licence in its own Province, the moment the undertaking becomes extraprovincial it requires a certificate from a carrier board of the Province into or through which the undertaking goes, and that certificate must be secured from that carrier board under the authority of the Federal power delegated to it.

Monnin J.A. reached the opposite result (as did Dickson J., then sitting in the trial Court, vide 1964 CanLII 470 (MB QB), 47 D.L.R. (2d) 244) and concluded that the Manitoba Board, acting pursuant to the federal Act, must authorize the operation of the extra-provincial undertaking both in respect of that part of the

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undertaking operating on the roads of Manitoba as well as the operation emanating from the province.

The opposite result to the Kleysen case, supra, was reached in the High Court of Ontario in Regina v. Canadian American Transfer Ltd.⁷, where Wells C.J.H.C., at p. 267, stated:

With great respect I am unable to share the view of the majority in the Manitoba Court of Appeal. They seem to limit the word “through” to a vehicle that entered the Province and went right through it. That, of course, is quite an adequate description and is no doubt partially encompassed by the statute but that does not exhaust its terms. In my view the decision of the majority is too limited in its nature when one looks at the Motor Vehicle Transport Act.

The Chief Justice continued:

With respect, it would seem to me that the word “through” also covers a transport into a foreign country from some point in Ontario. It is necessary for the exporter to drive through the Province of Ontario to the international border and I can see no reason why it should not apply to that as well as to the entry to a Province on one side and an exit from the Province on the other side.

The issue in its narrowest terms is therefore whether the expression “into or through the province” includes, by necessary implication or otherwise, transportation of goods “out of the province”. The question is one of statutory interpretation unencumbered by any constitutional considerations. The Privy Council determined the issue of capacity to so legislate in the Winner case, supra, and this Court the validity of the legislation in question in Coughlin, supra.

The only issue is whether the federal statute has invoked in s. 3(2) the full reach of the federal authority. I read s. 3 as an entity and not as two isolated or unrelated subprovisions. Inside the province the extra-provincial undertaking must, as we have seen, hold a licence from the local board sitting as a federally authorized agency under subs. (1). Subsection (2) must be dealing with

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something additional. If the word “through” is confined to that part of the extra-provincial undertaking “in” the province, then subs. (2) adds nothing to subs. (1). If “into” on the other hand recognizes the existence of that part of the extra-provincial undertaking operating outside the province, for the purpose of ascertaining and licensing the transportation service from its point of origin, then something additional to subs. (1) is introduced into s. 3. If the subsection is read on such a restricted basis as to exclude any authorization in respect of transportation services “out of” the province, an unrealistic result is produced. The provincial board in the discharge of its federal functions may then apply its regulatory authority to all aspects of the transportation of goods by motor vehicles except the extraprovincial transportation of goods which originates in the province. It is difficult to understand how the public interest could be ascertained and served in the discharge of its regulatory function if such a board could not extend its activities and its regulatory impact to what would appear to be a very significant, if not the most important, part of the regulation of motor vehicle transport in relation to its provincial community.

Subsection (2), in my view, clearly encompasses the licensing of an extraprovincial undertaking operating in, across, into and out of the province whether such transportation service relates to the interprovincial or international carriage of goods. I reach this conclusion in reliance upon the words employed by Parliament in subs. (2), that is, “into or through the province” as well as the definition of an “extra-provincial undertaking” in s. 2 of the Act where that expression is defined as including an undertaking “for the transport … of goods … connecting a province with any other … or extending beyond the limits of a province”.

It has been said here and in the Manitoba and Ontario cases already mentioned, that to so inter-

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pret s. 3 is to invite an impasse in the regulation of interprovincial trucking. An intermediate province might, for example, block the flow of goods from central Canada to the east or west coasts. Adjoining provinces might completely eliminate the flow of commerce by motor transport. Apart from the impracticality of such internecine conduct, we have s. 5 (set out above) of the federal Act to consider. The remedy available to the federal authority is simple. The need for a licence from the obdurate board would be swiftly suspended, and traffic through the area supervised by the offending authority would resume. The pattern of the statute thus contemplates multiple licensing by adjoining provinces. The system of truck transportation has thereby been brought within a national framework where the interests of the affected regions are determined by the local authority clothed with federal power by a procedure previously found valid in law. The extraprovincial undertaking is properly recognized in the statute as a single, seamless transportation unit to be regulated under the national authority disseminated to the provincial agencies. I conclude, therefore, that the extraprovincial licence issued by the Alberta Board is valid.

There remains the claim by the appellants for damages for the allegedly wrongful seizure of their motor vehicles and their cargo, whatever be the result with respect to the first issue. Before this Court the appellants asserted that the terms of the federal statute limit the exposure of the appellants, should their conduct be found to constitute a violation of the federal statute, to the punishment as prescribed by s. 6 of the statute which provides:

6. (1) Every person who violates any provision 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.

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(2) A fine imposed under subsection (1) shall be paid over by the magistrate or officer receiving it to the treasurer of the province in which it was imposed.

Since s. 3(1) prohibits the operation of an extra-provincial undertaking “in” Alberta without the appropriate licence from the Alberta Board, the appellants have committed an offence against the subsection by transporting the cargo in question without an Alberta licence authorizing the conduct of that specific freight business. The appellants then submit that s. 6 and only s. 6 then applies. If that be so, then the argument continues to the effect that s. 3 of the federal statute may not be read as incorporating applicable provincial law including the power to seize for a violation of the terms of the licence issued by the provincial Board.

I do not believe the terms of the federal statute lend themselves to this line of reasoning. In s. 3(1) the reference to the local law (that is, “the law of the province”) relates only to the requirement for a licence for the operation of the extraprovincial undertaking within the province. The Alberta law clearly requires a licence for a local undertaking (s. 3(1) of The Public Service Vehicles Act, R.S.A. 1970, c. 300); thus a licence is required by s. 3(1) in the case of the extraprovincial undertaking. The definition of “law of the province” is contained in s. 2 set out above. Section 3(2) authorizes the provincial Board to issue a licence “in its discretion” to an extraprovincial undertaking “upon the like terms and conditions and in the like manner as if the extraprovincial undertaking operated in the province were a local undertaking”. That phrase has no meaning unless it refers to those “terms and conditions” authorized under the law of the province in which such operations take place, had the operation been a local undertaking and not an extraprovincial undertaking. The Board is, by the Alberta statute, not only authorized by ss. 22 and 16 to issue such public service vehicle licences, but is by s. 8(2) given the capacity to “accept and exercise the powers conferred upon it by the Motor Vehicle Transport Act (Canada)”. There is therefore a complete dovetailing of the Alberta motor vehicle transport regulatory pattern and the national regulatory pattern as

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established under the Motor Vehicle Transport Act of Canada.

The Board likewise is empowered to suspend the licences under s. 26 of the Alberta statute; and “a peace officer”⁸ may by s. 58 seize equipment “being operated in contravention of this Act or the regulations or orders made under this Act”. It follows therefore that unless s. 6 has displaced the provincial legislation with respect to the enforcement of licences issued under the federal authority, the Board had indeed the power to effect the seizure here made of equipment and of the cargo which was being transported by the appellants. The appellants argue that the power of seizure is drastic and should not be read into the federal statute unless it be clearly authorized by its terms. To the same end, the proposition is advanced that prima facie the statute has adopted its own remedies and consequently the provincial powers in respect of violations of the federal Act have no application.

A much more realistic view is open for adoption on the plain reading of the federal statute read as a whole. The limitation which may be imposed on the applicable provincial law as defined in s. 2 applies directly only with reference to the determination under s. 3(1) (where the term “by the law of the province” appears) as to whether a provincial licence is required for the transport of goods by a work or undertaking which is not an extraprovincial undertaking. While s. 3(2) on the other hand includes no reference to the “law of the province”, I approach this issue on the broader basis that s. 3(2) imports so much of the local law as would apply to a licence for a “local undertak-

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ing” upon the like terms and conditions and in the like manner, and that such incorporated provincial law must, on general interpretative principles, be not inconsistent with the terms of the federal statute.

There are two separate and distinct questions which arise out of the terms of the federal statute here under consideration. Firstly, how much of the provincial law is, by s. 3 of the federal statute, incorporated into the regulation of interprovincial trucking, and in answer to that question, what if any parts of the provincial law are excluded by reason of inconsistency or repugnancy with the federal statute, particularly s. 6(1)?

This Court had occasion to consider this aspect of the matter in Coughlin v. Ontario Highway Transport Board⁹, where Cartwright J., as he then was, stated at p. 575:

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. Parliament can at any time terminate the powers of the Board in regard to inter-provincial carriage or alter the manner in which those powers are to be exercised. Should occasion for immediate action arise the Governor General in Council may act under s. 5 of the Motor Vehicle Transport Act.

Further on the same page, the learned justice referred to the enactment of the federal Act as being:

… 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 The Queen v. Smith¹⁰, the examination of the impact of the federal statute and the incorporated provincial legislation was advanced a step further. The judgment of the Court was written by Martland J. who stated at pp. 366-7, after referring to the case of Coughlin, supra, and the authorities therein mentioned:

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In summary, these passages construe the Federal Act as meaning that Parliament has given the power to regulate extraprovincial undertakings to provincially constituted boards, and, in defining that power, had 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 Board, were those contained in the relevant Alberta statute, The Public Service Vehicles Act, R.S.A. 1955, c. 265 as amended, [now R.S.A. 1970, c. 300], and the regulations enacted pursuant thereto.

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.

It may be thought that Spence J., in speaking for this Court in Registrar of Motor Vehicles v. Canadian American Transfer Ltd.¹¹, may have cast some doubt upon these principles as set out in Coughlin and Smith, supra. However, it must be realized that in the Canadian American proceedings, supra, the Court was concerned with the attempt by a provincial authority, the Registrar of Motor Vehicles (and not the Provincial Commercial Vehicles Licensing Board) to enforce the provincial motor vehicle licensing legislation against the operator of an interprovincial trucking undertaking without reference to either the Motor Vehicle Transport Act of Canada or the provincial

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transport licensing legislation therein incorporated by reference. In essence, the judgment of Spence J. construes the provincial legislation with reference to vehicle licensing as being intra vires and thus as making reference only to vehicles not engaged in interprovincial trucking. The Court was not there concerned with operating licences under The Public Commercial Vehicles Act of Ontario (at p. 814). As a result, the Registrar had no authority (regardless of what action might have been taken against the trucking concern under s. 3(1) of the federal Act) to act against the interprovincial undertaking under the provincial vehicle licensing legislation by cancelling its vehicle permits. With reference to s. 3, Spence J., at p. 818, had this to say:

The respondent here was prosecuted and convicted on several occasions for breach of subs. (1) of s. 3 of the statute. Subsection (2), on the other hand, constitutes the provincial transport board in each province as a board which may issue licences to a person to operate an extra-provincial undertaking into or through the province. That subsection does not delegate to the province any power of legislation and, indeed, such attempted delegation in a federal statute would itself be ultra vires:

Coughlin, supra, amongst other cases, was cited in support.

Earlier cases in other Courts dealt with questions which came closer to the facts now before this Court. The Ontario Court of Appeal in an unreported judgment dated March 4, 1957, concerning Reimer Express Lines Ltd., referred to by Wilson C.J.S.C. in Vancouver-Seattle Bus Lines Ltd. v. Lieutenant-Governor in Council of British Columbia¹², at pp. 86-87, stated through Laidlaw J.A.:

It could not have been the intention of Parliament in passing the Motor Vehicle Transport Act in 1954, that there should be a distinction made in respect of an application made relating to a local carrier and an application in respect of a carrier seeking a licence to

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carry on an extra-provincial undertaking. Section 3 of that statute contemplates that the matter of the issue of licences to a carrier who seeks to carry on an extra-provincial undertaking should be the subject of jurisdiction of a provincial Board, in this case the Ontario Highway Transport Board. The power vested in that Board to exercise its discretion and to make its decision as to whether or not a licence should be given is exercisable subject to all the provisions in the Ontario Highway Transport Board Act and without any distinction as between a local carrier and a carrier who seeks an extra‑provincial licence.

The citation given for the Ontario case in B-Line Express Ltd. v. Motor Carriers Commission¹³ is erroneous. The comments in the B-Line judgment by Verchere J. are apt in our circumstances:

Finally, as Mr. Mullins pointed out, it seems clear that the words “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” [the Motor Vehicle Transport Act, s. 3(2)] must import the provisions of s. 11 of The Motor Carrier Act, where power to amend, suspend, and cancel a licence is expressly given to the Commission, (at p. 601)

When in s. 3 the local board is authorized to issue a licence for an extraprovincial undertaking upon like terms and conditions as if it were a local undertaking, the statute must be taken to state in the plainest terms that such a licence may be brought into being and issued as a part of the regulatory scheme established by the board sitting under its authorization pursuant to the federal statute. Such a licence, apart from the federal statute, is issued as a “certificate” by the board under the sections of the provincial Act already noted. The certificate is issued by a “grant” by the board. Section 58 of the local law authorizes a seizure where a motor vehicle is “being operated in contravention of the Act … or the orders of the board”. Neither the term “grant” nor the term “order” is defined in the statute. The seizure here may therefore be based either upon the operation of a public service vehicle without the requisite certificate being issued by the Board, contrary to s. 3(1) of the provincial statute (which by unhappy

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coincidence is the same section number as the section principally under review in the federal Act); or contrary to the conditions outlined in the certificate issued by the Board pursuant to s. 22 of the Alberta Act. If it were necessary to decide that a grant of certificate by the Board is an “order” of the Board, as the term is employed in s. 58(1), I would do so. There is no doubt of the power and authority of the Board to seize the vehicle of the appellants and the cargo being carried therein under the law of the province unless the law of the province has been made inapplicable to these events by the federal statute. Section 6 of the Motor Vehicle Transport Act does not, in my view, have the effect of displacing the provincial law otherwise applicable under s. 3(2) of the federal Act. Section 3(1) forbids the operation of an extra‑provincial undertaking in the province without a licence issued under the authority of the federal Act. Section 6 makes it an offence to violate any provision of the Act and renders the offender liable to punishment by fine or imprisonment. It may be that an offence under s. 3(1) may be punishable only upon the terms of s. 6 but not with reference to any provincial law or regulation which might otherwise be applicable. It is not necessary to make any such determination, however, in this appeal.

Section 3(2), on the other hand, makes no reference to the law of the province but expressly authorizes the Board to exercise its licensing authority under the federal Act on like terms and conditions as if the subject of the licensing process were a local undertaking. This subsection neither expressly nor inferentially displaces the provincial law, but rather expressly makes provincial law applicable. The Ontario Court of Appeal in both Regina v. Glibbery¹⁴ and Regina v. Isaac¹⁵ was dealing with federal legislation which expressly applied federal sanctions to breaches of incorporated provincial substantive laws. Section 3 of the federal statute here under review must be read along with s. 6 of that statute and the result contrasts sharply with the federal legislation in Glibbery and Isaac, supra. There is, therefore, no

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inferential impact by s. 6 on the provincial seizure powers under s. 58 of the Alberta Act and those powers are not thereby displaced. The words employed by Parliament in s. 3(2) are overriding in their impact. Section 6(1) does not displace any power of the Alberta Board acting under s. 3(2) to issue a licence on such terms and conditions as the Board would attach, had the licensee been a purely intraprovincial carrier. The provincial law authorizes, amongst other matters, suspension of licence and seizure of cargos and to otherwise enforce the local law applicable to the terms and conditions of licence issued by the Board acting under its federal licensing power, would be to strike at the very heart of the provincial licensing procedures.

The result of this specific review of the applicable sections of the federal statute and the provisions of the provincial law referentially incorporated therein is supported by a more general examination of the federal and provincial statutory pattern adopted for the regulation of the transportation of cargo by motor vehicles. The division of authority under the British North America Act requires an integration of regulatory controls over the highways as such and over the transportation of goods thereon as well as a co-ordination of the regulation of the commerce flowing over these highways intraprovincially, interprovincially and internationally. The province, through its control of the highways, may not interfere with the federal power to regulate the extraprovincial undertakings operating along those highways. In the same manner, however, the provincial power to regulate entirely local undertakings engaged in the transportation service must be left unimpaired by the federal activities in their proper sphere. In my view, the limited or immediate problem arising under the federal statute on this appeal is easily determined by according their plain meaning to the terms of that statute. Happily, in my view, the result of such a process accords with a sensible and workable disposition of these issues.

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I therefore would dismiss this appeal with costs to the respondents.

Appeal dismissed with costs.

Solicitors for the appellants: Burnet, Duckworth & Palmer, Calgary.

Solicitor for the respondent Board: The Attorney General of Alberta.

Solicitors for the respondents, Reimer Express (Pacific) Ltd. and Alberta Motor Transport Association: McLennan, Ross, Taschuk & Ponting, Edmonton.

Footnotes

1. 11979 ALTASCAD 13, [1979] 2 W.W.R. 534, 96 D.L.R. (3d) 278.
2. 21968 CanLII 2 (SCC), [1968] S.C.R. 569.
3. 31971 CanLII 171 (SCC), [1972] S.C.R. 359.
4. 4The Court is advised that this certificate is being re-issued on an annual basis until this litigation is complete.
5. 51954 CanLII 289 (UK JCPC), [1954] A.C. 541.
6. 6(1965), 1965 CanLII 512 (MB CA), 48 D.L.R. (2d) 716.
7. 71969 CanLII 462 (ON SC), [1970] 1 O.R. 262.
8. 8Section 2(15) of The Public Service Vehicles Act adopts s. 2(22) of The Highway Traffic Act, R.S.A. 1970, c. 169, which provides as follows:
   22. “peace officer” means a member of the Royal Canadian Mounted Police, a member of a municipal police force, an inspector of the Inspection Branch of the Department of the Attorney General or a special constable;
9. 91968 CanLII 2 (SCC), [1968] S.C.R. 569.
10. 101971 CanLII 171 (SCC), [1972] S.C.R. 359.
11. 111972 CanLII 13 (SCC), [1972] S.C.R. 811.
12. 12(1963), 1963 CanLII 561 (BC SC), 42 D.L.R. (2d) 82.
13. 131974 CanLII 1791 (BC SC), [1975] 3 W.W.R. 598.
14. 14(1962), 1962 CanLII 229 (ON CA), 36 D.L.R. (2d) 548.
15. 151973 CanLII 651 (ON CA), [1973] 3 O.R. 833.