M.C. 1 (1999-2000)
IN THE MATTER OF THE MOTOR CARRIER
ACT, R.S.N. 1990, CHAPTER M-19(“THE ACT”)
AND
IN THE MATTER OF THE APPLICATION
BY KENNETH BROUGHTON, OPERATING
AS BROUGHTON’S AMBULANCE SERVICE,
ET AL, FOR AN AMENDMENT TO THE
MOTOR CARRIER CERTIFICATES OF
CERTAIN AMBULANCE SERVICE PROVIDERS
(“AMBULANCE OPERATORS”).
The
Board of Commissioners of Public Utilities (the “Board”) received an
Application under the Act from solicitor, John A. Baker, as Agent for the
Ambulance Operators. The Ambulance
Operators carry on business at various locations in the Province, and are
holders of motor carrier certificates issued by the Board pursuant to the Act
authorizing the provision of ambulance services. The Application was dated the 10th day of August,
1999, and requested an amendment to the rate schedule attached to each of the
motor carrier certificates of the Ambulance Operators. Paragraph 6 of the Application states as
follows:
“Amend the rate schedule attached to
the existing License by deleting the existing wording and adding thereto a
schedule of rates approved by the Board as submitted by the Applicant and
contained on pages 16-17 of the “Review of Financial Information and Request
for Funding” document submitted as an appendix to this Application.”
Upon receipt of the Application, the
Board, pursuant to the Act and Motor Carrier Regulations, C.R.N. 965/96 (the
“Regulations”), issued a Notice of Amendment to be published in the Newfoundland
Gazette, which notice was published by the Ambulance Operators on September 10th,
1999. In addition, the Board served
notice of the application for amendment on the Department of Health and
Community Services (the “Department”) and all other ambulance operators in the
Province.
On the 29th day of
September, 1999, the Department, through their solicitors, communicated their
intention to intervene in the matter and, on the 14th day of
October, 1999, filed a submission with the Board objecting to the jurisdiction
of the Board to approve or set rates for ambulance services pursuant to the
Act. The 27th day of
October, 1999 was set for a pre-hearing conference and notice of the
pre-hearing conference was sent to all parties who had expressed an interest in
the matter. At the pre-hearing
conference, the 17th day of November, 1999 was set for hearing of
the preliminary question of jurisdiction of the Board. Subsequent to the pre-hearing conference a
supplementary brief was filed by solicitors for the Department and a brief was
filed on behalf of the Ambulance Operators by their solicitor.
Submissions were made at the hearing
on the 17th of November, 1999 on behalf of the Department by Colin
Flynn, Q.C. and, on behalf of the Ambulance Operators, by John A. Baker.
The Department took the position
that the Board did not have jurisdiction to approve or set rates for ambulance
services and did not have jurisdiction to hear and determine an Application for
a rate revision by Ambulance Operators.
Mr. Flynn cited Section 28(1)(v) of
the Act, and argued that that Section gave the Lieutenant-Governor in Council
the exclusive jurisdiction to regulate the setting of rates for motor carriers.
The Department disagreed with the
Ambulance Operators’ contention that Section 22 of the Act empowered the Board
to set rates. The Department’s view is
that Section 22 of the Act simply authorizes the Board to enforce rates, which
are set by the Lieutenant-Governor in Council.
The Department submitted that the schedule of rates, tolls and charges
may only be levied at the direction of the Lieutenant-Governor in Council
pursuant to Section 28(e) of the Regulations.
The Department argued that the Board, as a creature of statute, has no
authority under the Act or Regulations to approve or set rates for ambulance
services, and did not have the authority to hear the Application for an
amendment to rates.
The Ambulance Operators argued that
the authority for approving and setting rates, under the legislative regime
contained in the Act and Regulations, is a shared authority, as between the
Lieutenant-Governor in Council and the Board.
The Ambulance Operators argued that as the Lieutenant-Governor in
Council has not passed any regulations respecting the setting of ambulance
operator’s rates, it has not occupied the field, and therefore the Board has
the authority, pursuant to Section 22 of the Act and Section 28 of the
Regulations, to fix or approve rates for ambulance operators.
While the parties focused their
argument on the general jurisdiction of the Board to approve or set rates, the
question to be determined is, notwithstanding whether the rates are set by the
Lieutenant-Governor in Council or by the Board, once rates are set, does the
Board have jurisdiction to hear an Application to amend those rates?
However, because the issue of
general jurisdiction was raised in argument, the Board feels that it should
also address that question.
The Act and the Regulations have
been designed to achieve a particular purpose, namely the efficient regulation
of certain motor carrier services. The
legislation establishes a regime specifically for regulation of the provision
of ambulance services. The regulatory authority,
as established by the legislation, is the Board of Commissioners of Public
Utilities. The purpose of the Act and
Regulations should be kept in mind in determining the intention of the
legislature. Keeping this purpose in
mind, the Board feels that the only interpretation possible in this area is one
that best ensures the attainment of the objectives of the Act and Regulations.
In assessing the question to be decided, the Board has considered Sections 16, 22(b) and 2(1)(a) of the Interpretation Act and these Sections are as follows:
16. Every Act and every regulation and every provision of an Act or regulation shall be considered remedial and shall receive the liberal construction and interpretation that best ensures the attainment of the objects of the Act, regulation, or provision according to its true meaning.
22.(b) where power is given to the Lieutenant-Governor in council or a public officer to do or enforce the doing of an act or thing, all those powers shall be considered to be also given as are necessary to enable him or her to do or enforce the doing of the act or thing.
2.(1) In this Act
(a) “public officer” includes a person in the public service of the province
(i) who is authorized to do or enforce the doing of an act or thing or to exercise a power, or
(ii) upon whom a duty is imposed by or under a
public stature.
In order to determine the intention
of the legislature, the Board must look to the Act and Regulations as a
whole. There are a number of sections
germane to the issue. They include the
following:
Section 2 of the Act states:
2. In this Act
(c) “certificate” means a valid and existing motor carrier certificate granted to a person under this Act.
(p) “public service vehicle” means a motor vehicle designed or used for…
4.(1) A person shall not operate a motor vehicle upon a highway as a public service vehicle unless that person
(a) obtains or is exempted from obtaining a public service passenger certificate; and
(b) complies with the terms and conditions of the certificate.
Section 6(2) of the Act states:
6.(2) The Board may grant a public service passenger certificate authorizing the transportation of passengers and parcel express as prescribed by the regulations.
Section 2 of the Regulations states:
2. In these regulations
(o) “irregular” when used to describe a service means the transportation of passengers, baggage or parcel express at hours, days, weeks or intervals that are not fixed.
The Board finds that an ambulance service is an irregular public passenger service.
Section 34 of the Regulations states:
(34) A motor carrier certified to operate an irregular public passenger service shall transport passengers, baggage or parcel express requiring transportation to the extent of his or her available equipment and in accordance with the conditions and at the tariff rates set out in the certificate.
From the above noted provisions it is clear that an individual in the Province cannot operate an ambulance service without first obtaining a motor carrier certificate from the Board.
Furthermore, any individual operating an ambulance service must do so in accordance with the terms and conditions as set out in the Certificate and in compliance with Sections 21 and 22 of the Act as stated below.
21.(1) Except as exempted by this Act, a person shall not operate a public service vehicle unless the operation of the vehicle conforms with the terms and conditions of the certificate covering the vehicle and with this Act and all orders, rules, regulations and schedules made under this Act and with the Highway Traffic Act and the Dangerous Goods Transportation Act and regulations made under either of those Acts.
(2) A failure to conform to the requirements referred to in subsection (1) is sufficient cause for the suspension or cancellation by the board of the certificate or part of the certificate.
22. The holder of a public service passenger certificate shall not charge in excess of the rates that are approved by the board or that are set by the board.
The rate setting authority of the Board is set out in Sections 27 and 28 of the Act.
27. The board may fix the schedules and services that shall be observed and provided by the holder of a public service passenger certificate.
Section 28
of the Regulations indicates that the term “schedule” should be read to
include, inter alia, rates to
be charged by regulated motor carriers including ambulance operators.
Moreover, Section 28 (1) of the Act states:
28.(1) The Lieutenant-Governor in Council may make
regulations
(a) regulating and controlling motor
carriers;
(j) providing for the amendment of
certificates;
(v) respecting the rates, fares and charges
to be charged by motor carriers and publication of them, and the prohibition of
the carrying of passengers on vehicles to which this Act applies without
charge.
In addition, Section 28 of the Regulations states that the Board, either previous to or at the time of the issue of a certificate, may fix or approve the terms of the certificate, including:
28.(e) schedules of the rates, tolls, fares or charges to be levied by the motor carrier or a public passenger service or for another service at the direction of the Lieutenant-Governor in Council;
The Department’s position is that the term “at the direction of the Lieutenant-Governor in Council” qualifies the entire section and not simply “another service”.
The Board finds that a plain reading of Section 28 (e) of the Regulations leads to the conclusion that the Lieutenant-Governor in Council has given the Board the authority to determine rates charged by regulated motor carriers including ambulance operators, and any other class of service as may be mandated by the Lieutenant-Governor in Council.
The following sections of the Act and Regulations govern the amendment of a certificate.
Section 16(1) of the Act that
states:
16.(1) The Board may, for cause, amend,
suspend or cancel a certificate in whole or in part.[emphasis added]
Section 39 of the Regulations
states:
39. An Application by a motor carrier for
approval of an amendment to his or
her certificate to authorize the abandonment or discontinuance of a service or
the reduction of authorized services, routes, areas or amendments to timetables or rates,
or for the approval of another amendment not referred to in subsection
38(1), may be heard by the board unilaterally and without public notice or
hearing unless otherwise ordered by the board.[emphasis added]
Section 39 of the Regulations empowers the Board, upon receipt of an application, to amend a certificate with respect to rates. Section 16 of the Act, on the other hand, empowers the Board to amend, suspend or cancel a certificate on its own motion for cause. This includes an amendment to the rates charged by the certificate holder.
The Board notes that the parties did not
present argument on whether the Board has jurisdiction to amend a certificate
with respect to rates once the certificate has been issued. Rather, argument
focused on the broader issue of the Board’s ability to determine rates in
general. This is in spite of the fact that the Application filed by the
Ambulance Operators asks the Board to do just that, namely, to amend the rates
as they appear in the certificates.
However, since the Board clearly has the
authority to amend the rates, and bearing in mind that the intention of the
legislature was to create an efficient means of regulating this industry, it
must be concluded that the Board also has the authority to determine the rates
in the first instance.
The
Board, having considered the written and oral submissions of the parties, and
having undertaken a plain reading of Sections 27 and 28 of the Act and Section
28(e) of the Regulations, as well as considering Section 16 of the Act and
Section 39 of the Regulations, has
reached the conclusion that it does have jurisdiction to determine rate
schedules in the first instance and to amend those schedules. Therefore, the Board does have the authority
to hear the Application in this matter for an amendment to the rate schedule of
the Motor Carrier Certificates in question.
IT IS THEREFORE ORDERED THAT:
1. The Application of Kenneth Broughton, operating as Broughton’s Ambulance Service, et al, for an amendment to the motor carrier certificates of certain ambulance service providers will be heard by the Board.
2. Pursuant to Section 18(2) of the Motor Carrier Act the expenses of the Board on the preliminary issue of jurisdiction shall be paid by the Department of Health and Community Services.
DATED at St. John’s, Newfoundland this 21st day of December, 1999.
________________________________
D.A. Vardy,
Chair & Chief Executive Officer
______________________________
G.
Fred Saunders,
Commissioner.
Gerard
J. Martin, Q.C.
Commissioner.
__________________________
G. Cheryl Blundon,
Director of Corporate Services and
Board Secretary.