Winner v. S.M.T. (Eastern) Ltd.

Winner v. S.M.T. (Eastern) Ltd.
Collection
Supreme Court Judgments
Date
1951-10-22
Report
[1951] SCR 887
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald
On appeal from
New Brunswick
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887
Date: 1951-10-22
Israel Winner, doing business under the name and style of Mackenzie Coach Lines (Defendant) Appellant;
and
S.M.T. (Eastern) Limited, a duly incorporated company (Plaintiff) Respondent;
and
Attorney General of Canada and Others Interveners.
Present: Rinfret C.J. and Kerwin, Taschereau, Rand, Kellock, Estey, Locke, Cartwright and Fauteux JJ.
Constitutional Law—Public bus service engaged in interprovincial and international transportation of passengers—Whether an. "undertaking" within the meaning of The British North America Act, s. 92 (10) (a)—Whether such an operation affected by Provincial Legislation—The New Brunswick Motor Carrier Act, 1937, c. 43 and amendments; The Motor Vehicle Act, 1934, c. 20 and amendments.
A public bus service engaged in the interprovincial and international transportation of passengers is an undertaking within the meaning of section 92(10) (a) of The British North America Act. The appellant, an. American citizen, operated a public bus service between Boston, U.S.A. and Halifax, Nova Scotia. The New Brunswick Motor Carrier Board, purporting to act under the provisions of The Motor Carrier Act, 1937, c. 43 as amended, granted him a licence to operate his buses over the province's highways connecting the State of Maine with the Province of Nova Scotia but not to embus or debus passengers within New Brunswick. The appellant having refused to be bound by the restriction, an injunction was sought and it was ordered that three questions be raised for the opinion of the New Brunswick Court of Appeal, viz:
1. Are the operations or proposed operations of the defendant within the Province of New Brunswick or any part or parts thereof prohibited or in any way affected by the provisions of The Motor Carrier Act (1937) and amendments thereto, or orders made by the said Motor Carrier Board?
2. Is 13 Geo. VI, c. 47 (1949) intra vires of the legislature of the Province of New Brunswick?
3. Are the proposed operations prohibited or in any way affected by Regulation 13 of The Motor Vehicles Act, c. 20 of the Acts of 1934 and amendments, or under ss. 6 or 53 or any other sections of the Act?
The Supreme Court of New Brunswick, Appeal Division, having answered the three questions in the affirmative, on appeal to this Court
Held: that the questions should be answered only to the extent necessary to dispose of the issues raised by the pleadings and for that purpose the answer made is that it is not within the legislative powers of the Province of New Brunswick by the statutes or regulations in question, or within the powers of The Motor Carrier Board by the terms of the licence granted by it, to prohibit the appellant by his undertaking from bringing passengers into the province of New Brunswick from outside Said province and permitting them to alight, or from carrying passengers from any point in the province to a point outside the limits thereof, or from carrying passengers along the route traversed by its buses from place to place in New Brunswick, to which passengers stop-over privileges have been extended as an incident of the contract of carriage.
Rinfret CJ. answers the first question as follows:‑
"The operations or proposed operations of the defendant-appellant within the Province of New Brunswick or any part or parts thereof, as above set forth, are not prohibited or in any way affected by the provisions of The Motor Carrier Act, 1937 and amendments thereto. On the contrary, such operations or proposed operations are specifically pro­vided for in Regulation 13, made under authority of The Motor Vehicle Act. The attempt to restrict them in the Order made by the Motor Carrier Board is illegal and ultra vires."
and declines to answer the second and third questions.
Judgment of the Supreme Court of New Brunswick, Appeal Division, (1950) 26 M.P.R. 27, reversed. APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division[1] which answered affirmatively three questions (set out in the preceding headnote) involving the validity of The Motor Carrier Act, 1937, c. 43 and amendments, including 13 Geo. VI, c. 47; and of The Motor Vehicle Act, 1934, c. 20 and amendments, including in particular ss. 6 and 53 and Regulation 13 pro­mulgated thereunder.
N. B. Tennant, K.C. and J. M. Neville, K.C. for the appellant.
C. F. Inches, K.C. and A. B. Gilbert, K.C. for the respondent.
F. P. Varcoe, K.C. and W. R. Jackett, K.C. for the Attorney General of Canada, Intervenant.
C. R. Magone, K.C. for the Attorney General of Ontario, Intervenant.
L. E. Beaulieu, K.C. for the Attorney General of Quebec, Intervenant.
J. A. Y. MacDonald, K.C. and L. H. McDonald for the Attorney General of Nova Scotia, Intervenant.
A. N. Carter, K.C. and J. E. Hughes for the Attorney General of New Brunswick, Intervenant.
H. A. Maclean, K.C. for the Attorney General of British Columbia, Intervenant.
W. E. Darby, K.C. for the Attorney General of Prince Edward Island, Intervenant.
H. J. Wilson, K.C. for the Attorney General of Alberta, Intervenant.
C. F. H. Carson, K.C. and Allan Findlay for the Canadian National Ry. Co. and the Canadian Pacific Ry. Co., Intervenants.
F. R. Hume for Maccam Transport Ltd., Intervenant.
C. H. Howard, K.C. for Carwil Transport Ltd., Intervenant. THE CHIEF JUSTICE:—The plaintiff-respondent is a company incorporated under and by virtue of The New Brunswick Companies Act and is in the business (inter alia) of operating motor buses for the carriage of passengers and goods for hire or compensation over the highways of the Province of New Brunswick. It holds licences granted by The Motor Carrier Board of the Province of New Brunswick to operate public motor buses between St. Stephen, New Brunswick, and the City of Saint John, New Brunswick, over Highway Route No. 1 and between the said City of Saint Jahn and the Nova Scotia border over Highway Route No. 2, for the purpose of carrying passengers and goods for hire or compensation. It maintains a daily passenger service over those routes.
The appellant, who resides at Lewiston in the State of Maine, one of the United States of America, is in the business (inter alia) of operating motor buses for the carriage of passengers and goods for hire or compensation under the name and style of MacKenzie Coach Lines.
On the 17th day of June, 1949, on the application of the appellant, The Motor Carrier Board granted him a licence permitting him to operate public motor buses from Boston in the Commonwealth of Massachusetts through the Prov­ince of New Brunswick on Highways Nos. 1 and 2 to Halifax and Glace Bay in the Province of Nova Scotia and return "but not to embus or debus passengers in the said Province of New Brunswick after August 1, 1949."
At the time of making the said application, the defendant challenged the validity of the statute of New Brunswick 13 Geo. VI, c. 47 (1949) and The Motor Carrier Act, 1937, as affected thereby, as being ultra vires of the Legislature of the Province of New Brunswick. The Motor Carrier Board made no specific ruling on the defendant's challenge, but acted under the said statute.
The appellant, by his motor buses, maintains a regular passenger service over the routes above-mentioned, but, since August 1, 1949, he has continually embussed and debussed passengers within the Province of New Brunswick, and it is his intention to continue to do so unless and until it shall have been declared by some court of com­petent jurisdiction that such operations are prohibited by The Motor Carrier Act, 1937 and amendments, or by any other applicable statute or law.
The appellant further intends to carry passengers not only from points without the Province of New Brunswick but points within the said province, and vice versa, but also in connection with and incidental to. his operations, to carry passengers from points within the said province unless and until it shall have been declared by some court of competent jurisdiction that such operations are pro­hibited by The Motor Carrier Act, 1937 and amendments thereto, or by any other applicable statute or law.
The business and undertaking of the appellant consists of the operation of motor buses for the carriage of passen­gers and goods for hire or compensation between the City of Boston in the Commonwealth of Massachusetts and the Town of Glace Bay in the Province of Nova Scotia and between intermediate points. Such business and undertaking is conducted by the appellant over that portion of its route which lies between the City of Boston and the Town of Calais, Maine, under a certificate granted by Interstate Commerce Commission (a Federal Commission of the United States of America having jurisdiction over inter-state transportation), permitting the appellant to carry passengers and their baggage, as a motor carrier, in. seasonal operations from the 1st day of May to the 15th day of December, both inclusive, over a regular route between Boston, Mass., and a point on the United States-Canada boundary line north of Calais, Maine, and thence over the bridge to the United States-Canada boundary line and return over the same routes; service being author­ized to and from all intermediate points.
Subsequently and in addition, Inter-state Commerce Commission has permitted the appellant to carry passengers and their baggage, as a motor carrier, and express, mail and newspapers in the same vehicle with passengers, in a seasonal operation extending from the 1st of May to the 15th of December, inclusive, of each year, over alternate regular routes for operating convenience only in con­nection with said carrier's presently 'authorized regular route operations. The Motor Carrier Board of the Province of New Bruns-wick, on the 17th of June, 1949, on the application of the appellant, purported to licence the operation of the appel­lant in the Province of New Brunswick as follows:
Israel Winner doing business under the name and style of "MacKenzie Coach Lines", at Lewiston in the State of Maine is granted a licence to operate public motor buses from Boston in the State of Massachusetts, through the Province of New Brunswick on Highways Nos. 1 and 2, to Halifax and Glace Bay in the Province of Nova Scotia and return, but not to embus or debus passengers in the said Province of New Brunswick after August 1, 1949.
The Board of Commissioners of Public Utilities for the Province of Nova Scotia has purported to approve the appellant's operations in the Province of Nova Scotia over routes from the New Brunswick border to Glace Bay, via Route No. 4, Wentworth Valley and Truro; via Route No. 2, Parrsboro and Truro; via Route No. 6, Pugwash, Wallace, Pictou and New Glasgow; and also from Truro to Halifax (three miles of each route is within the corporate limits of the Town of Truro and City of Halifax) ; save that the certificate granted by that Board permitted to suspend operation from January 12, 1949, until May 1, 1949.
The appellant, in fact, operates as a public motor carrier between the City of Boston and the Town of Glace Bay and intermediate points, in accordance with a published timetable, copy of which was filed in the record.
Moreover, between December 15 and May 1 of each year, the appellant proposes to operate as a public motor carrier between the provinces of New Brunswick and Nova Scotia, connecting with New England Greyhound Lines, Inc., a company authorized by the Inter-State Commerce Com­mission to operate as a public motor carrier between Calais, Maine and Boston, Massachusetts.
Incidental to its operations as aforesaid, the appellant proposes to pick up within the Province of New Brunswick passengers and their baggage having a destination also within the Province of New Brunswick.
The respondent brought this action complaining that since August 1, 1949, the appellant has continually embused and debused passengers within the Province of New Brunswick, contrary to his licence, and he has declared his intention of so doing until stopped by legal process; and it was the assertion of the respondent that, unless the appellant was restrained from so doing, irreparable dam-age and harm would be done to the latter. Wherefore the respondent claimed an injunction against the appellant, his servants or agents, restraining him and them from embussing and debussing passengers within New Brunswick, in his public motor buses running between St. Stephen, New Brunswick, and the Nova Scotia border, accompanied by a declaration that the appellant had no legal right to do so, and asking for an accounting of fares received for. the carriage of passengers within the Province of New Brunswick together with damages and costs.
By a Statement of Defence, the appellant stated that his operation of public motor buses was primarily inter-national and interprovincial within the meaning of s. 92 (10) (a) of The British North America Act; and he asked for a declaration that his operations were not prohibited by or subject in any way to the provisions of The Motor Carrier Act and amendments thereto, or by or to any other applicable statute or law; and the declaration that 13 Geo. VI, c. 47 (1949) is ultra vires of the Legislature of the Province of New Brunswick.
The case having come for hearing before Hughes, J., in the Chancery Division of the Supreme Court of New Brunswick, the learned judge ordered that certain ques­tions of law be raised for the opinion of the Supreme Court of New Brunswick (Appellate Division) and that, in the meantime, all further proceedings in this action be stayed.
The questions for the opinion of the Appellate Division were as follows:
1. Are the operations or proposed operations of the defendant within the Province of New Brunswick, or any part or parts thereof as above set forth, prohibited or in any way affected by the provisions of The Motor Carrier Act, 1937 and amendments thereto, or orders made by the said Motor Carrier Board?
2. Is 13 George VI, c. 47 (1949) intra vires of the Legislature of the Province of New Brunswick?
And it was further ordered that after the said questions had been answered, then, the matter should be referred back to the Supreme Court Chancery Division for further proceedings, subject to such rights of appeal as may be available to either of the parties, the whole without preju­dice to the respondent's right to the relief claimed in its Statement of Claim.
Subsequently at the hearing before the Court of Appeal another question was added as No. 3:
Are the proposed operations prohibited or in any way affected by Regulation 13 of The Motor Vehicle Act, c. 20 of the Acts of 1934 and amendments, or under sections 6 or 53 or any other sections of The Motor Vehicle Act?
The Attorney General of New Brunswick intervened in the action. After hearing, the Appellate Division answered as follows to the several questions submitted:
To Question No. 1: Yes, prohibited, until the Defendant (Appellant) complies with the provisions of the Act.
To Question No. 2: Yes, in respect of this Defendant (Appellant), Richards, C.J., Hughes, J., answering simply "Yes".
To Question No. 3, as it became after the question had been amended by Hughes, J., on the 31st of March, 1950: Yes, until the Defendant (Appellant) complies with the provisions of the Act, and the Regulations made thereunder.
From that decision, the appellant now appeals to this Court.
Richards, C.J., stated that, in his opinion, the appellant did not come within the exceptions under s. 92 (10) (a) because he had no office or place of business, or organiza­tion, or situs, in the Province of New Brunswick; his office or place of business was at Lewiston, in the State of Maine, and it could not be said, therefore, that his undertaking extended beyond the limits of the province. He then proceeded to consider whether the legislation in question fell within s. 91, or s. 92, of The British North America Act, and, after having referred to a certain number of cases, he came to the conclusion that the legislation in question was entirely local in character, related to traffic within the province, only incidentally affected traffic passing through the province, and, in his view, the legislation was within the competence of the Legislature of New Brunswick.
Harrison, J., took practically the same view and that, in his opinion, the defendant's undertaking did not come under s. 92 (10) (a). To his mind, the province had the right to regulate motor vehicle traffic within its own borders and that included the right to prohibit such traffic when deemed necessary or expedient. However, he further added that, even if the Acts in question should be held ultra vires in respect of a Canadian national carrying on an undertaking locally in Canada for transporting passengers and goods between provinces, it did not follow that the appellant could raise the same defence. The appellant, being a foreign national, was bound to comply with the laws regulating vehicular traffic within the provinces' boundaries, until they were super­seded by Dominion legislation; and foreign nationals, insofar as they were concerned, had no status to ask that such laws be declared ultra vires.
Hughes, J., sitting as a member of the Appellate Division, concurred in the answers given by Richards, C.J.
It is to be noted that this is an ordinary case and not a reference.
Questions of law were submitted to the Appellate Division for the purpose of securing its opinion, after which, as stated in the Order of Hughes, J. itself, the matter was to be referred back to the Supreme Court Chancery Division for further proceedings and with the object of enabling the trial judge to decide the case.
Under no interpretation of the procedure to be followed could the case be transformed into a reference, which, alone, the Legislature of New Brunswick had the power and the authority to submit to the Courts. The decision on the questions of law was useful only to the extent that it could be used for the purpose of deciding the case as, otherwise, the questions were quite unnecessary.
The conclusions of the plaintiff-respondent in its Statement of Claim were merely that an injunction should issue against the defendant-appellant, his servants or agents, restraining him and them from embussing and debussing passengers within the Province of New Brunswick in his public motor buses running between St. Stephen, New Brunswick, and the Nova Scotia border, and a declaration that the defendant-appellant had no legal right to embus or debus passengers within the Province of New Brunswick, with a consequential demand for an accounting, and dam-ages. That is all that the plaintiff-respondent asked for and all that he can get in the present case. The basis of that claim is evidently the so-called licence issued to the appellant on the 17th of June, 1949, by The Motor Carrier Board of the Province of New Brunswick, which has been already reproduced above.
One would look in vain to any of the provisions of The ' Motor Carrier Act, 1937, and its amendments, or to the Statute 13 Geo. VI, c. 47 (1949), of New Brunswick, or to Regulation 13 of The Motor Vehicle Act, c. 20, of the Acts of 1934 and amendments, or to sections 6 or 53, or any other sections of The Motor Vehicle Act, for any prohibition affecting the appellant, "restraining him from embussing and debussing passengers within the Province of New Brunswick in his public motor buses running between St. Stephen, New Brunswick, and the Nova Scotia border" (to use the very words of the conclusions of the respondent), or for anything affecting "his legal right to embus or debus passengers within the Province of New Brunswick" (also a conclusion of the respondent's Statement of Claim). When once it is granted that the appellant holds, as he does, a licence to operate his motor buses through the Province of New Brunswick, on High-ways Nos. 1 and 2, to Halifax and Glace Bay, in the Province of Nova Scotia and return, nothing can be found in either The Motor Vehicle Act or The Motor Carrier Act, 1937, restraining him from embussing or debussing passengers in the province.
Indeed, what the plaintiff-respondent wishes the Courts to enjoin is based and can find any foundation only on the qualification inserted in the appellant's licence by The Motor Carrier Board.
If, therefore, such qualification is illegal and, in fact, ultra vires, because it is not authorized by the two Acts themselves, it follows that it must disappear from the licence and there is nothing left on which the action of the respondent can be maintained.
For the authority of The Motor Carrier Board to insert such a qualification in the licence of the appellant, one must look, of course, to An Act Respecting Motor Carriers (c. 43, Acts of Assembly, 1 Geo. VI (1937), passed April 2, 1937), whereby the Board was constituted. By that Act, the Board is given the power to grant to any person, firm or company, a licence to operate or cause to be operated, within the province, public motor buses or public motor trucks over specified routes and between specified points.
Section 5(3) of the Act specifies that:
In determining whether or not a licence shall be granted, the Board shall give consideration to the transportation service being furnished by any railroad, street railway, or licensed motor carrier, the likelihood of proposed service being permanent and continuous throughout the period of the year that the highways are open to travel and the effect that such proposed service may have upon other transportation services.
And section 5(4) adds:
If the Board finds from the evidence submitted that public con­venience will be promoted by the establishment of the proposed service, or any part thereof, and is satisfied that the applicant will provide a proper service, an order may be made by the Board that a licence be granted to the applicant in accordance with its finding upon proper security being furnished.
Section 11 should also be referred to. It reads thus:
Except as provided by this Act, no person, firm or company shall operate a public motor bus or public motor truck within the Province without holding a licence from the Board authorizing such operations and then only as specified in such licence and subject to this Act and its Regulations.
The three sections just quoted are the only ones to which the Court was referred as affording authority to The Motor Carrier Board to insert in the appellant's licence the restriction therein mentioned.
Moreover, s. 22 of An Act Respecting Motor Carriers states that "the provisions of this Act shall be deemed to be in addition to the provisions of The Motor Vehicle Act". By force of the regulations made under authority of The Motor Vehicle Act "no person operating a motor vehicle as a public carrier between fixed termini outside the Province shall operate such motor vehicle on the highways of the Province unless the operator is in possession of a permit issued by the Department setting forth the con­ditions under which such motor vehicle may operate and after payment of such fees as the Minister may determine fair and equitable" (Regulation No. 13). And that is the regulation specially mentioned in Question No. 3 submitted to the Appellate Division. It would seem, of course, that, if Regulation 13 governs the operations of the appellant-and no reason was advanced why it should not-the permit which is to be issued to the appellant "setting forth the conditions under which such motor vehicle may operate" is the permit mentioned in that Regulation 13. If it were not so, one would speculate as to the reason for referring to that regulation in the questions submitted.
It cannot be that, if the permit which the operator of a motor vehicle, as a public carrier, must secure in order to operate such a motor vehicle on the highways of the province, is to be issued by the Department and to set forth the conditions under which such motor vehicle may operate after payment of such fees as the Minister may determine fair and equitable, the intention of the Legis­lature would be that, by application of The Motor Carrier Act, the Board would have anything to do with that permit. The two Acts, as enacted in s. 22 of The Motor Carrier Act, must be interpreted together and it stands to reason that the Legislature cannot have had in view that the Board may set forth conditions which the Department has not decreed.
But, moreover, Regulation 13 of The Motor Vehicle Act comes under the title of "Non-Residents" and it specifically provides for a person operating a motor vehicle, as a public carrier, between fixed termini outside the province, who intends to operate such motor vehicles on the highways of the province. It says that, in such a case, the permit must be issued by the Department and that it is in that permit that the conditions under which such motor vehicle may operate are to be set forth. On the other hand, s. 4 of An Act Respecting Motor Carriers only deals with the power of the Board to grant to any person, firm or company, a licence to operate or cause to be operated within the province public motor buses or public motor trucks.
Whichever way the two sections are contrasted, it does not leave any room for doubt that, in the case of a non-resident, Regulation No. 13 must prevail, as it is a special enactment referring, in terms, to non-residence, while the other s. 4 of The Motor Carrier Act is a general provision, in terms, dealing with persons, firms or companies operating only within the province.
On the record as it stands, it is to be assumed (as no reference whatever is made to it), that the appellant has complied with Regulation No. 13, or, at all events, it must be decided that, if the appellant needs a permit, it is to be issued to him under Regulation No. 13 of The Motor Vehicle Act and that he has nothing to do with the licence provided for by s. 4 of The Motor Carrier Act. Indeed, it was not in any way within the competency of the Board to issue to him, a non-resident, a permit or licence under s. 4.
The consequence is that the licence upon which the plaintiff-respondent relied to ask the Court to issue an injunction against the appellant, restraining him from embussing and debussing passengers, was issued wholly without a shadow of authority.
But there is yet another objection to the validity of the licence issued to the appellant, and it is this: That the restriction inserted by the Board in the licence which it issued has nothing to do with highway legislation proper. It does not deal with schedules, or service, or rates, or fares, or charges, or forms, or fees, as provided for in s. 17(1) of The Motor Carrier Act; it does not deal in any way with highways in stipulating that the appellant will not be entitled to embus or debus his passengers within the territory of New Brunswick; it is nothing more than an attempt to regulate or control the business of the appellant.
The object of such a restriction has not been explained, nor is it apparent. It was suggested by counsel for the respondent himself that it had in view the prevention of competition by the appellant against the respondent. If so, of course, it is not highway legislation but something which may come under the heading of "Commerce" (and, in the present case, of commerce by an international under-taking), but it has surely nothing to do with traffic. As was suggested, if necessary, it would be quite possible for the appellant to own, along the lines of his motor buses, certain vacant property where his passengers could embus or debus. Yet, the restriction inserted in his licence would prohibit this.
It was argued that, if the Board really had competency to issue a licence to the appellant, notwithstanding the terms of Regulation 13 under The Motor Vehicle Act, it could find some authority for what it has done in somewhat general terms in s. 5(3) or 11 of The Motor Carrier Act; but that argument forgets altogether the rules of interpre­tation of statutes-that words must be understood in accord with the subject matter of the statute.
As put by Maxwell, on Interpretation of Statutes, 9th Ed., by Sir Gilbert Jackson, at page 55, the words of a statute are to 'be understood in the sense in which they harmonize with the subject of the enactment and the object which the legislature has in view:
Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained. It is not because the words of a statute, or the words of any document, read in one sense will cover the case, that that is the right sense. Grammatically, they may cover it; but, whenever a statute or document is to be construed, it must be construed not according to the mere ordinary general meaning of the words, but according to the ordinary meaning of the words as applied to the subject-matter with regard to which they are used, unless there is something which renders it necessary to read them in. a sense which is not their ordinary sense in the English language as so applied (Brett M.R., Lion Insurance Co. v. Tucker (1883), 53 L.J.Q.B. 189.
And, at Page 63, the following occurs:
WORDS IN ACCORD WITH INTENTION
It is in the interpretation of general words and phrases that the principle of strictly adapting the meaning to the particular subject-matter with referencec [sic] to which the words are used finds its most frequent application. However wide in the abstract, they are more or less elastic, and admit of restriction or expansion to suit the subject-matter. While expressing truly enough all that the Legislature intended, they frequently express more, in their literal meaning and natural force; and it is necessary to give them the meaning which best suits the scope and object of the statute without extending to ground foreign to the intention. It is, therefore, a canon of interpretation that all words, if they be general and not express and precise, are to be restricted to the fitness of the matter. They are to be construed as particular if the intention be par­ticular; that is, they must be understood as used with reference to the Subject-matter in the mind of the Legislature, and limited to it.
In the present case, however wide may be the general terms implied in s. 3(3), 5(4) or 11, they must be read as being restricted to the subject of highway circulation and cannot be extended to the subject of commercial competi­tion or some other similar objects.
Under such a rule of interpretation, it is not possible to say that the restriction inserted by the Board, in the appellant's licence, was justified by the terms of The Motor Carrier Act and it must, therefore, be considered as ultra vires. For those two reasons, both because the permit required by the appellant was within the jurisdiction of the Department and of the Minister and did not come under the competency of the Motor Carrier Board, and also because, even if it did, that Board exceeded its authority and dealt with a matter with which it was in no way concerned, we must come to the conclusion that the licence issued by the Board to the appellant is invalid.
That being so, it disposes of the plaintiff-respondent's action and claim and, with due respect, I find all the other questions irrelevant.
To the questions submitted by the learned trial judge, I would therefore answer:
1. The operations or proposed operations of the defendant-appellant, within the Province of New Brunswick or any part or parts thereof, as above set forth, are not prohibited or in any way affected by the pro-visions of The Motor Carrier Act, 1937, and amendments thereto. On the contrary, such operations or proposed operations are specially provided for in Regulation 13 made under authority of The Motor Vehicle Act. The attempt to restrict them in the order made by the Motor Carrier Board is illegal and ultra vires.
As the only foundation for the plaintiff-respondent's action is this illegal restriction and, indeed, the complete lack of authority in the Motor Carrier Board to issue the licence at all is sufficient, to decide the present case between the parties, it becomes immaterial to pass upon the validity of the two acts of the Legislature of New Brunswick.
As I said, the object of submitting these legal questions to the Appellate Division of the Supreme Court of New Brunswick being limited to the purpose of deciding the case, it is therefore sufficient for that purpose to come to the conclusion that the licence can in no way support the conclusions of the Statement of Claim and it is unnecessary to go further.
Consequently, I decline to answer the second and third questions. The Statute 13 Geo. VI, c. 47 (1949), referred to in Question No. 2 does appear to me to be intra vires, for I fail to see how the amendment to section 4 of the said chapter, as amended by c. 37 of 3 Geo. VI, (1939), intro­duced by 13 Geo. VI (1949), c. 47, can have any bearing on the case. The amendment in question consisted merely in striking out the word "and" in the fourth line thereof and substituting therefor the word "or", and in striking out the words "within the province", being the last three words of the said section.
The result of that amendment is, therefore, that s. 4 thereafter read:
The Board may grant to any person, firm or company, a licence to operate or cause to be operated public motor buses or public motor trucks over specified routes and between specified points.
As originally enacted by The Motor Carrier Act, 1987, s. 4 read (without repeating the whole of it) :
* * * a licence to operate or cause to be operated within the province public motor buses * * *
By the amendment of c. 37, 3 Geo. VI, (1939), the words "within the Province" were struck out, where they origin-ally stood, and were added at the end of the section, so that it afterwards read:
The Board may grant to any person, firm or company a licence to operate or 'cause to be operated public motor buses or public motor trucks over specified routes and between specified points within the province.
The effect of the amendment by c. 47 of 13 Geo. VI (1949), was that the words "within the Province", being the last three words of the said section, were struck out.
I must confess that I do not see the difference, for, in my opinion, the section, as amended, has exactly the same effect as it had before. Notwithstanding the deletion of the words "within the Province", at the end of the section, the latter continues to be susceptible of meaning and appli­cation only to the operations within the province, and the Courts would be extremely loath to give it any other meaning, for the legislation adopted by the Legislature of New Brunswick must necessarily be understood to be limited to the territory of New Brunswick, as that Legis­lature could not possibly be considered as having attempted to legislate upon operations outside the province.
As for Question No. 3:
Are the proposed operations prohibited or in any way affected by Regulation 13 of The Motor Vehicle Act, Chapter 20 of the Acts of 1934 and amendments, or under Sections 6 or 53 or any other sections of The Motor Vehicle Act?
I have already expressed my opinion that none of these sections prohibits the appellant's operation in New Brunswick. On the contrary, they provide for the manner in which these operations may be carried out in that province. Indeed, s. 7(2) specifies that a foreign vehicle which has been registered theretofore outside of the province need only "exhibit to the Department the Certificate of Title or Registration, or other evidence of such former registra­tion as may be in the applicant's possession or control or such other evidence as will satisfy the Department that the applicant is the lawful owner of the vehicle". It follows, by necessary implication, that this requirement will be held sufficient and that the foreign motor vehicle will then obtain the necessary registration to operate upon any highway in New Brunswick, as provided for by s. 6 (1).
Section 53 goes no further than to say that "no motor vehicle shall be used or operated upon a highway unless the owner shall have complied in all respects with the requirements of this Act". Of course, it adds that no opera­tion can be carried on "where such highway has been closed to motor traffic under the provisions of the Highway Act", which is not only proper but natural.
Then, Regulation 13, as we have seen, specifies that "No person operating a motor vehicle, as a public carrier, between fixed termini outside the Province shall operate such motor vehicle on the highways of the Province unless the operator is in possession of a permit issued by the Department setting forth the conditions under which such motor vehicle may operate and after payment of such fees as the Minister may determine fair and equitable". This, of course, is not prohibition. It is only regulation which assumes that, provided the conditions set forth in Regula­tion 13 are complied with by the appellant, he will receive the permit to operate on the highways of New Brunswick. To that extent, of course, the proposed operations of the appellant are affected; and that is, in fact, the effect of the answer given by the Appellate Division of the Supreme Court of New Brunswick that all that the appellant has to do is to comply with the provisions of The Motor Vehicle Act and the Regulations made thereunder, and, after he has done so, he may operate on the highways of New Brunswick.
All that the appellant had to do, if he has not done so already (and it was assumed at Bar that he had complied with it), is to apply to the Department for a permit which will set forth the conditions under which his motor vehicles may operate and pay such fees as the Minister may deter-mine fair and equitable. But, as I have mentioned before, when once he has that permit, or if he has it already, such permits issued by the Department with the approval of the Minister does away entirely with the obligation of getting a licence from the Motor Carrier Board under s. 4 of The Motor Carrier Act, 1937. Regulation 13 under The Motor Vehicle Act applies specifically to foreign owners who are already registered in their own province or country, while s. 4 of The Motor Carrier Act is a general enactment which does not concern the foreign owners. It is quite clear that a vehicle owned by a non-resident, so far as the obligation to obtain a licence is concerned, is par­ticularly dealt with in The Motor Vehicle Act, more especially Regulations 8, 9 and 13 under that Act, and not by The Motor Carrier Act.
All that we have to do on the present appeal is to give our answers to the questions submitted by the trial judge to the Appellate Division of the Supreme Court of New Brunswick and then, after the questions have been answered, to refer the matter back to the Supreme Court Chancery Division for further proceedings, presumably so that the trial judge shall deal with the case in accordance with those answers.
In the Appellate Division the Court ordered that the plaintiff-respondent should have the costs of its application. As the present answers are contrary to those that were given in the Appellate Division and as they are in favour of the defendant-appellant, I presume that, on the present appeal, it should be said that the appellant shall have his costs both in this Court and in the Appellate Division.
The result of m