Rural Transit Association Ltd v Jamaica Urban Transit Company Ltd et Al

JurisdictionJamaica
CourtSupreme Court (Jamaica)
JudgeCarol Lawrence Beswick J.,Mcdonald J.,Williams F. J,Lawrence-Beswick J.,,
Judgment Date17 June 2016
Date17 June 2016
Docket Number2014 HCV O4728

Supreme Court

Lawrence-Beswick, J.; McDonald, J.; Williams, J.

2014 HCV O4728

Rural Transit Association Limited
and
Jamaica Urban Transit Company Limited et al
Appearances:

Hugh Wildman and Keiva Marshall, instructed by Hugh Wildman & Co. for the claimant.

Walter H. Scott Q.C. and Mathieu Beckford, instructed by Rattray Patterson Rattray Attorneys-at-Law for the 1st defendant.

Carlene Larmond and Monique Harrison, instructed by the Director of State Proceedings for the 2nd and 3rd defendants.

Constitutional Law - Equality before the law — Whether the Jamaica Urban Transit Company (JUTC) was empowered to designate an exclusive bus lane — Whether the Commissioner of Police was empowered to designate an exclusive bus lane having considered that the Commissioner had the power to regulate traffic under section 21 of the Constabulary Forces Act — Whether the Police Traffic Division issued a directive purportedly designated a lane of the highway for the sole use of JUTC buses — Whether the designation of an exclusive bus lane was a traffic direction — Whether the restriction of a portion of a highway was in breach of the constitutional right to equality before the law under section 13 of the Charter — Equality of treatment — Whether the preferential treatment of the exclusive bus lane was unconstitutional — Role of competitor — Whether the actions of the Commissioner of Police breached the Rural Transit Association's constitutional right to equality before the law — Right to equitable and humane treatment by any public authority in the exercise of any function — Whether the restriction of the lane of the highway breached the Rural Transit Association's right to equitable and humane treatment by any public authority in the exercise of any function pursuant to section 13 (h) of the Charter — Whether the treatment of Rural Transit Association by the police was equitable and humane — Relief which could be granted — Consideration of relief to be granted — Whether the claimant had met the pre requisites for establishing a constitutional claim — Definition of law — Claim dismissed — Charter of Fundamental Rights and Freedoms Constitutional Amendment Act, section 13(3)(g) and (h).

IN COURT

Carol Lawrence Beswick J. (DISSENTING)

1

The 1 st Defendant's buses have the exclusive use of one of the West Bound lanes of the Mandela Highway (the Highway) at certain times. The Claimant alleges that this exclusivity results from the actions of the 1 st and 2 nd defendants, and that it inures to its detriment. This is an Application by the Claimant seeking Constitutional Relief in relation to those alleged actions of the 1 st and 2 nd defendants, and asking the Court to provide remedy by way of declarations, the grant of an injunction and the award of damages.

2

The Claimant, the Rural Transit Association Limited (RTA), is a company duly incorporated under the Companies Act of Jamaica with the stated purpose of representing and promoting the interest of private individuals who are engaged in the provision of public passenger transportation in Jamaica. The evidence for the Claimant is through the affidavit of Mr. Godfrey James, who avers to be a member of the Claimant and who purports to have the permission of the Claimant to act on its behalf. Mr. James avers to be himself in the business of providing public passenger transport, having been licensed to do so by the Transport Authority. Two of his licences allow him to operate between Linstead and Cross Roads, via Washington Boulevard, Molynes Road and Half-Way Tree, which he asserts, necessitates travel on the Mandela Highway.

3

The 1 st Defendant, the Jamaica Urban Transit Company Ltd (JUTC), is a company duly incorporated under the Companies Act of Jamaica, having as its sole shareholder the Accountant General of Jamaica. The 1 st Defendant, also in the business of public passenger transport, is the holder of the Public Passenger (Kingston & Metropolitan Transport Region) Licence 1998. It operates buses that ply between Spanish Town and Kingston, traversing the Mandela Highway.

4

The 2 nd Defendant, the Commissioner of the Police, is the head of the Jamaica Constabulary Force, including the Traffic Division. The 3 rd Defendant is joined by virtue of the Crown Proceedings Act.

FACTUAL BACKGROUND
5

On the 1 st November 2013, a project was implemented on the Mandela Highway, whereby the westbound lanes of the Highway were converted to accommodate two-way traffic from Caymanas Bay to the Plantation Heights entrance between the hours of 6:00 a.m. and 8:00 a.m. from Monday to Friday. This had the effect of changing one of the two westbound lanes into a temporary eastbound lane designated for exclusive use by JUTC's buses. The project was originally slated to last for a period of three (3) months, but was extended on more than one occasion, so that, the above-stated changes to traffic continue. It is unclear by whose or what authority the project was devised, however, at all material times, it was put into effect and supervised by the Police Traffic Division of the Jamaica Constabulary Force.

6

On 12 th May 2014, the RTA filed an Application for Court Orders for leave to apply for Judicial Review against the Defendants, along with the Office of Utilities Regulation (OUR), seeking several orders of administrative and constitutional relief. The basis of the application was that, inter-alia, the Defendants were unlawfully regulating public passenger transport by way of the aforementioned Mandela Highway Project. It was also asserted that the decisions taken to implement the policy violated the RTA's constitutional right to equitable and humane treatment by any public authority in the exercise of any function.

7

That Application was heard by Lennox Campbell J. 1, who found, inter-alia, that the decision maker with regards to the implementation of the Mandela Highway

Project had not been sufficiently identified, and consequently, administrative relief was refused. However, that court granted leave to pursue constitutional relief.
8

Subsequently, pursuant to Fixed Date Claim Form filed 8 th October 2014, as amended at trial on the 29 th June 2015, the Claimant now seeks the following reliefs:

1
    A declaration that the 1st and 2nd Defendants are not empowered by law to designate the West Bound section of the Mandela Highway to allow buses of the 1st Defendant ONLY travelling from Spanish Town to Kingston to have sole occupation of that lane between Mondays to Fridays from 6:00 to 8:00 a.m. 2. A declaration that the restriction of a portion of the right hand side of the West Bound section of the Mandela Highway by the 1st and 2nd Defendants to allow buses of the 1st Defendant ONLY travelling from Spanish Town to Kingston to have sole occupation of that lane between Mondays to Fridays from 6:00 to 8:00 a.m., is in breach of The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, and is therefore null and void and of no effect. 3. A Permanent injunction restraining the 1st and 2nd Defendants, their servants and or agents or howsoever described from restricting a portion of the right hand side of the West Bound section of the Mandela Highway to allow buses of the 1st Defendant ONLY travelling from Spanish Town to Kingston to have sole occupation of that lane between Mondays to Fridays from 6:00 to 8:00 a.m. 4 Damages to the Claimant to be assessed for the illegal actions of the 1st and 2nd Defendants in breaching the Claimant's Constitutional rights in restricting the flow of traffic on the right hand side of the West Bound section of the Mandela Highway allowing buses of the 1st Defendant ONLY travelling from Spanish Town to Kingston to have sole occupation of that lane between Mondays to Fridays from 6:00 to 8:00 a.m. 5. Damages for breach of the Claimant's rights. [All emphases as in the original].
THE CLAIMANT'S SUBMISSIONS
9

It is the case of the claimant, the RTA, that the JUTC and the police designated a lane of the West Bound Section of the Mandela Highway for exclusive use by JUTC buses, and that the said designation breaches the RTA's Constitutional Rights. The argument is that the action of the 1 st and 2 nd Defendants who are state agencies, directly infringes the RTA's rights to equality before the law and the right to equitable and humane treatment by any public authority in the exercise of any function, as laid out in sections 13(3) (g) & (h) of The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011. These rights, the Claimant argues, are part of the bundle of fundamental rights guaranteed and protected by the Constitution, which State agencies are bound to uphold.

10

Counsel for the RTA, Mr. Hugh Wildman, contends that the designation provides an advantage to JUTC buses over buses of members of the RTA (including Mr. James, its representative), as well as other providers of public passenger transportation. According to Counsel, the Police and the JUTC are public authorities, and they have singled out the JUTC, which the claimant views as a private company owned by the Government of Jamaica, for special treatment in the use of the Mandela Highway, in preference over other users including members of the RTA, and others who are also in the business of providing public passenger transport along the said Highway.

11

Counsel argues that the fact that the JUTC buses have the use of that exclusive lane results in large numbers of passengers commuting on JUTC buses to the detriment of the other providers of public passenger transport. who also use the Highway, including RTA, and has thus caused RTA to suffer significant financial loss.

12

Counsel noted that the role of this Court is to ensure that Public Authorities carry out their functions according to the law and are held accountable. 2 He submitted that Section 2 of the Jamaican Constitution...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT