Mr. HOWE:

I cannot say as to that, but certainly the aircraft men of both organizations have bargaining rights.

Mr. GILLIS:

The minister is quite emphatic about it as far as the main lines are concerned, but once this board is set up, supposing Maritime Air Lines, for example, a feeder line, makes application. The board grants them a licence to operate the line and they can suit themselves as to the treatment of the employees. That is private enterprise. You are placing the employees in a position where they will have to fight for organization

Aeronautics Act

of a union, taking a vote, getting a certificate under the code, and everything else. The code should be put in the bill to protect the employees. It would simply be inserting in the bill a principle which the government is giving effect to on the main -line to-day.

Mr. HOWE:

Writing a provision of that kind into the bill would place employees of air lines in a position which no other employees in this country enjoy. All employees throughout the country are protected by the government's labour code, under conditions set out in the code. The application of the code to the air lines is well established, and I see no reason why the employees of airlines should be placed in a different position from other employees throughout Canada. If we provide specially for them in the bill, then in years to come that measure might conflict with the general labour act of the federal government.

Mr. DIEFENBAKER:

The minister stated in answer to my question that the new board would have the same powers as the old board. Looking over the bill, I cannot come to that conclusion. Under the Transport Act the powers of the board are set out in section 13, subsections 1 to 5, as follows:

13. (1) The hoard may, notwithstanding anything contained in the Aeronautics Act, subject to the provisions of this part, license aircraft to transport passengers and/or _ goods between specified points or places in Canada or between specified points or places in Canada and specified points or places outside of Canada.

(2) The licence shall be issued in the name of the owner, lessee or other person entitled to engage in transport by air by means of such aircraft.

(3) The licence may apply to one or more aircraft.

(4) The board may in the licence prescribe the route or routes which the aircraft named therein may follow and the schedule of services which shall be maintained.

(5) The board shall not issue a licence without being first satisfied that the proposed service is and will be required by the present and future public convenience and necessity.

As I understand it, this new bill alters in effect the powers of the board. I will refer to the sections in order to bring the matter to the attention of the minister with a view to securing an answer to the questions that I asked.

Under the new bill the only provision for the independence of the board is to be found in section 7, which states:

There shall be a board to be known as the air transport board consisting of three members appointed by the governor in council.

Subsection 7 of section 7 deals with the independence of the board and provides that

the members of the board shall not directly or indirectly engage in the manufacture or selling of aircraft, and so forth. The minister has stated that the board to be constituted under this bill has the same powers as the former transport board. The only section that gives it any powers at all is section 8, which provides:

The board may make rules for the regulation of its proceedings and the performance of its functions and duties under this act.

That section simply provides that the board shall have certain powers with respect to its own administration. But when it comes to the exercise of judicial or quasi-judicial powers there are many alterations in the powers. Section 11 provides:

Subject to the approval of the governor in council, the board may make-

certain regulations, and I am not objecting to that at the moment. Section 12 is the important section. It states:

(1) Subject to the approval of the minister, the board may issue to any person applying therefor a licence to operate a commercial air service.

In other words, the board has not the wide powers that it previously had. Under the old act it was untrammeled in the exercise of its powers, but under this bill it may only issue a licence subject to the approval of the minister.

Mr. McLARTY:

Read subsection 3.

Mr. DIEFENBAKER:

Subsection 3 of

section 12 reads:

The board shall not issue any such licence unless it is satisfied that the proposed commercial air service is and will be required by the present and future public convenience and necessity.

But subsection 3 I would point out, and I am sure the Secretary of State will agree with me, is again subject to subsection 1, where the approval of the minister is required before any licence may be issued.

Mr. HOWE:

Not at all.

Mr. McLARTY:

It is a definite restriction, as I think the hon member for Lake Centre will agree.

Mr. HOWE:

Nowhere in this legislation is the minister given power to compel the board to issue a licence. The issue of the licence is subject to the approval of the minister, but the board can refuse to issue the licence. My hon. friend is trying to confuse the committee.

Mr. DIEFENBAKER:

I am not trying to confuse the committee. I am trying to ascertain the reason why these changes are being made. I want to know what has occurred to

Aeronautics Act

make it necessary to remove from the board of transport commissioners, in so far as air transport is concerned, the absolute power that it had under the old act.

Again subsection 4 of section 12 provides:

The board shall not issue any such licence unless and until an operating certificate has been issued by the minister to the operator of the proposed commercial air service certifying that the holder thereof is adequately equipped and able to conduct a safe operation as an air carrier over the prescribed route.

In other words, if the minister takes an arbitrary stand and says that in so far as any particular applicant is concerned he will not grant a certificate, the board is powerless to grant a licence.

In so far as the right of appeal is concerned, which the minister has mentioned, no licence can be granted by the board unless there is a certificate by the minister approving the issuing of the licence. Then provision is made for an appeal under subsections 8, 9 and 10 of section 12. After the minister has determined that he will approve the issue of a licence subject, we will say, to certain qualifications there is an appeal to the minister from the board which is responsible to the minister for determining in the first place whether or not a licence should be granted. In other words, what this bill says to-day is that a licence may be issued by the board only, with the approval of the minister, after a certificate has been granted by the minister as to the satisfactory nature of the qualifications of the company.

As I see it, under these regulations the board of air transport will have no independence. In the first place, it will be subject to the control of the minister in the issuance of licences. While the board may draft motions, under the sections I have mentioned it is subject to the final control of the minister. While it has all the outward appearances of being an independent body to administer the law in so far as air transportation is concerned, free and uncontrolled, it is in fact a body subject to the control of the minister. In this connection I should like to refer to the report by the Lord High Chancellor of Great Britain covering the committee on ministers' powers. This committee reported in April, 1932, and condemned the setting up of boards with judicial or semi-judicial functions which were in fact controlled by a minister. I quote from page 7S of the report as follows:

We are of opinion that in considering the assignment of judicial functions to ministers, parliament should keep clearly in view the maxim that no man is to be judge in a cause in which he has an interest. We think that in any case in which the minister's department

would naturally approach the issue to be determined with a desire that the decision should go one way rather than another, the minister should be regarded as having an interest in the cause. Parliament would do well in such a case to provide that the minister himself should not be the judge, but that the case should be decided by an independent tribunal.

The board can grant a licence only with the approval of the minister; yet the appeal sections of the bill provide that where the board refuses to issue a licence, issues a licence which differs from the licence applied for, or attaches conditions to which the applicant objects, an appeal may be made to the minister. If a licence were not granted because the minister would not give his approval, what good purpose would there be in taking an appeal? As I read this new bill, it simply means that parliament is delegating authority to a semi-judicial body, while at the same time it is restricting the use and exercise of its powers. There are no safeguards under this bill against the objectional exercise or abuse of the minister's powers. The minister is being put in the position of being in control over the right of any individual to secure a. licence to operate air transportation services. As far as the board is concerned it can act only with his approval. Under this bill, if the minister were to refuse, wrongly or unfairly, to approve the issue of a licence there would be no means whereby the person aggrieved by the decision could have an appeal except to the minister himself. I submit that that is a dangerous principle. The individual would have no recourse to the courts for the preservation of his rights; however qualified he may be to have a licence, the final determinant of his rights is not this board with judicial or quasi-judicial powers, but is in fact the minister.

While the minister glibly brushes aside this argument, the fact remains that the bill in its present form confers power upon him to determine the right of a person to have a licence, however qualified that person may be, however qualified a corporation may be, to operate and to receive a licence. That person or corporation would have no recourse except to appeal to the minister. This is going a long way along the road whereby the minister becomes the determinant as to who shall or shall not operate air lines in this dominion. I should like to know why it became necessary to alter the powers which the board of transport commissioners held with respect to airways. The power of that board was absolute, subject, of course, in war time to the order in council that has been passed. Why is it necessary for the time ahead, for the days of peace which we believe are approaching, for the minister to

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have such absolute powers? I submit that there is a great principle at stake and a further explanation should be given by the minister.

Section stands.

Progress reported.