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MOTOR CARRIERS - Regulation - Buses – Motor Carrier Act

Tuesday, August 22, 2017 @ 8:35 AM  

Appeal by Dorman Roberts Limited (DRL) from a decision of the respondent Public Utilities Board (Board) granting Boone a motor carrier licence without holding a hearing. Boone applied for a motor carrier licence to carry passengers between Lewisporte and St. John’s in a 20-passenger wheelchair accessible bus. DRL had objected to the issuance of the licence because Boone’s proposed service would undermine the viability of its own bus service, which carried passengers along the whole Trans-Canada Highway (TCH). DRL was the sole operator of the Trans-Island bus service along the TCH corridor. It argued that many sections of its Trans-Island service were unprofitable and that it could only afford to service them because they were subsidized by the profitable routes. The Board decided that the appellant’s objection did not raise a presumptive case or sufficient grounds to hold a hearing and approved Boone’s application.

HELD: Appeal dismissed. It was not procedurally unfair to allow Boone to reply to DRL’s objection without allowing DRL to review Boone’s reply, as the additional evidence Boone supplied had no bearing on the issues raised in DRL’s reply. The appellant’s objection showed that it faced some business challenges and that the cherry-picking of profitable routes by competing bus services could, in principle, threaten the Trans-Island service to the detriment of the public. However, DRL’s objection did not outline a threat to the viability of the Trans-Island service. The objection did not state whether the Trans-Island route was highly profitable or on the brink; in other words, it did not indicate whether the proposed service was a real threat to the viability of the Trans-Island bus service, or a nuisance that would decrease its profit margins. The Board’s choice of a high threshold for a presumptive case was compatible with the text and scheme of the Motor Carrier Act. The Board was uniquely familiar with its docket and with the costs and benefits of ordering a full hearing. There was no evidence that allowed the Court to find that it would be proportionate to delay the issuance of a certificate to allow a full hearing into an objection that failed to articulate a prima facie case.

Dorman Roberts Ltd. v. Newfoundland and Labrador (Board of Commissioners of Public Utilities), [2017] N.J. No. 259, Newfoundland and Labrador Supreme Court - Court of Appeal, C.W. White, M.F. Harrington and L.R. Hoegg JJ.A., June 30, 2017. Digest No. TLD-August212017006