DECISION  
2022 NSUARB 85  
M10498  
NOVA SCOTIA UTILITY AND REVIEW BOARD  
IN THE MATTER OF THE MOTOR CARRIER ACT  
- and -  
IN THE MATTER OF THE APPLICATION of BLACKWOOD TOURS LIMITED to amend  
Motor Carrier License No. P03224  
BEFORE:  
Richard J. Melanson, LL.B., Member  
APPLICANT:  
BLACKWOOD TOURS LIMITED  
Robert Jurcina, President  
OBJECTORS:  
BANNOCKBURN TOURS LIMITED  
Leon Yu, President (not appearing)  
COACH ATLANTIC TRANSPORTATION GROUP INC.  
Ryan Cassidy, Operations Analyst  
PENGBO FU o/a PENGBO’S SHUTTLE  
Pengbo (Rick) Fu, Owner/Operator  
TRANSOVERLAND LIMITED  
Jamie Callaghan, Office Manager  
HEARING DATE:  
FINAL EVIDENCE:  
DECISION DATE:  
DECISION:  
April 25, 2022  
April 25, 2022  
May 27, 2022  
Application is held in abeyance pending a determination  
from Blackwood about to the options outlined in para.  
[51] of this decision.  
Document: 295480  
- 2 -  
Table of Contents  
I
SUMMARY ............................................................................................................... 3  
II BACKGROUND........................................................................................................ 4  
III ISSUE....................................................................................................................... 5  
IV EVIDENCE............................................................................................................... 5  
V LAW........................................................................................................................ 10  
VI SUBMISSIONS....................................................................................................... 12  
VII ANALYSIS AND FINDINGS ................................................................................... 14  
VIII CONCLUSION........................................................................................................ 20  
Document: 295480  
- 3 -  
I
SUMMARY  
Blackwood Tours Limited (Blackwood) currently holds Motor Carrier  
[1]  
License No. P03224 (License), which allows the company to provide cruise ship charter  
services on Cape Breton Island, as well as general charter services from Cape Breton to  
any point in Nova Scotia, one way and return. The company has a registered office at  
7186 Big Pond Road on Cape Breton Island. Blackwood is currently authorized to provide  
the charter services with one 13-passenger 2008 Chevrolet Express mini-bus. In 2019,  
it also had a leased 2008 Ford E450 14-passenger mini-bus which was wheelchair  
accessible, which was authorized under the License. The plate for this type of vehicle  
was put on hold on June 18, 2020. In addition, Blackwood has a 2008 Dodge six-  
passenger mini-van licensed as a Commercial Vehicle. While Commercial Vehicles are  
licensed by the Board, they are not subject to economic regulation.  
[2]  
Blackwood applied to the Board, pursuant to the Motor Carrier Act, R.S.N.S  
1989, c.292 (MCA), to amend the terms of the License by adding one bus with a capacity  
of 20 to 28 passengers. In its application, Blackwood indicated it had a need for another  
bus “to add capacity for customers to explore Cape Breton”. Blackwood proposed no  
changes to its rates or operating authorities.  
[3]  
Blackwood's proposed license amendment was opposed by four licensed  
motor carriers, one of which did not appear at the hearing. Those opposed said that there  
was insufficient evidence to establish a need for an additional bus with the requested  
capacity, given the state of the industry because of the continuing effects of the COVID-  
19 pandemic.  
Document: 295480  
 
- 4 -  
[4]  
The Board has considered the evidence and submissions made during the  
hearing in the context of the tests it applies to amendment applications seeking a new  
charter service. The Board is not satisfied that Blackwood's evidence establishes, on a  
balance of probabilities, that there is sufficient demand, at this time, to establish a need  
for a new bus in addition to the authorized capacity for the plate which is currently on  
hold. In these circumstances, granting the application, without amendment, will likely  
cause an excess of equipment in the market. The Board, therefore, denies the request  
to add the proposed bus to the License, in addition to the one which is already on hold.  
At this stage, Blackwood must choose whether to put the existing authorized wheelchair  
accessible vehicle into service or replace it, either with a vehicle with a similar capacity,  
or with the type of vehicle requested in this application.  
II  
BACKGROUND  
On March 8, 2022, Blackwood applied to amend the License by adding one  
[5]  
bus, with a capacity of between 20 and 28 passengers, to the authorized equipment listed  
in the License. A Notice of Application was advertised in the Royal Gazette on  
Wednesday, March 16, 2022. As well, it was posted on the Board’s website and  
forwarded to licensed motor carriers by email, fax, or mail. Objections to Blackwood’s  
proposed amendment were filed by Bannockburn Tours Limited (Bannockburn), Coach  
Atlantic Transportation Group Inc. (Coach Atlantic), Pengbo Fu o/a Pengbo’s Shuttle  
(Pengbo), and Transoverland Limited (Transoverland).  
[6]  
A virtual hearing to determine the matter was scheduled and held on the  
GoToWebinar platform on April 25, 2022. Bannockburn did not appear at the hearing.  
Document: 295480  
 
- 5 -  
Pengbo (Rick) Fu, Owner/Operator of Pengbo’s Shuttle, indicated the principal of  
Bannockburn was not in the country and had authorized him to put forward its position.  
It appears the principal of Bannockburn has been in China for some time. In any event,  
Bannockburn did not request an adjournment and the Board proceeded in its absence.  
III  
ISSUE  
The only issue to be determined in this proceeding is whether the License  
[7]  
should be amended to allow Blackwood to add one bus, with a capacity of between 20  
and 28 passengers, to the authorized equipment listed in the License.  
IV  
EVIDENCE  
Blackwood had previously applied to add a similar vehicle to the License  
[8]  
(as well as to an extra-provincial motor carrier license) (see: M09349). That application  
was heard on January 14, 2021. A decision denying that application was made on April  
12, 2021 (see: 2021 NSUARB 47).  
[9]  
Blackwood caters almost exclusively to the cruise ship industry at the Port  
of Sydney. As a result of the COVID-19 pandemic, Sydney had effectively no cruise ship  
business in 2020 and 2021. Blackwood, therefore, filed the same documentary evidence  
it had filed in matter M09349.  
[10]  
The documentary evidence package consisted of letters of support from  
numerous businesses in Cape Breton. It also contained booking information, primarily  
from 2019. There were receipts for minivans to show Blackwood had to hire such services  
Document: 295480  
   
- 6 -  
when it could not meet booking requests. A summary of this documentary evidence is  
set out at paras. [9] to [13] of the Board’s 2021 decision.  
[11]  
The most significant additional evidence provided in this proceeding by  
Robert Jurcina, President of Blackwood, was that the 2022 cruise ship schedule had been  
posted and cruise ships were beginning to arrive in Sydney. The cruise ship schedule  
lists 93 ships scheduled to visit Sydney. This compares with approximately 110 ships  
which called on the port in 2019.  
[12]  
Mr. Jurcina testified he currently had confirmed bookings for eight days in  
2022 where he was fully booked. He expected more such days as the season  
progressed.  
[13]  
Mr. Jurcina confirmed that while he offered some full Cabot Trail tours and  
golf tours, most of his business came from cruise ship tours. He said he provided guided  
tours catering to smaller groups who did not want the experience and associated costs of  
the highway motor coach service offered by Transoverland to the cruise ship industry.  
[14]  
Mr. Jurcina’s primary goal in requesting the additional vehicle is to eliminate  
the need to sub-contract with taxis when his vehicles are fully booked. It would also allow  
him to provide more reliable service which would not be dependant on the availability of  
other carriers. In addition, it would allow him to grow his business in a niche market where  
his company could retain the revenue generated by its marketing and service efforts.  
[15]  
Mr. Jurcina said that sub-contracting with Transoverland for highway motor  
coaches with a 56-passenger seating capacity made no sense, given the rates involved.  
He suggested it was also uneconomic to sub-contract with other carriers with smaller  
seating capacity vehicles because of availability issues and rates. He said he could  
Document: 295480  
- 7 -  
finance a small bus at $1,000 per month, while it would cost approximately $1,000 per  
day to sub-contract a small bus from another licensed carrier. Mr. Jurcina indicated that  
there were a limited number of smaller carriers left on Cape Breton in any event, which  
number might be growing smaller.  
[16]  
Mr. Jurcina confirmed he had not yet sourced the vehicle he was proposing  
to add to the License but continued to make inquiries. Obviously, he would not purchase  
a vehicle without having the authority to use it.  
[17]  
Mr. Cassidy, on behalf of Coach Atlantic, provided general comments on  
the need to have a stable industry while the financial impacts accompanying the shutdown  
of the motor carrier industry caused by the COVID-19 pandemic were absorbed.  
Responding to questions from Mr. Jurcina, he confirmed the acquisition and proposed  
acquisition of certain motor carrier licenses by Coach Atlantic.  
[18]  
In response to an undertaking requested by Mr. Jurcina, Mr. Cassidy also  
provided information on the number of times motor coaches owned by Absolute Charters  
Inc. (Absolute) and Coach Atlantic serviced the Port of Sydney to assist Transoverland in  
2019. From September 10 to October 16, 2019, Absolute provided a total of 50 motor  
coaches. These were spread over 13 days. From September 10 to October 19, 2019,  
Coach Atlantic provided a total of 12 coaches spread over seven days.  
[19]  
Mr. Cassidy explained that because of the deadhead charges involved,  
neither company could offer competitive pricing for the Sydney cruise ship season. At  
the time, Absolute was a sister company to Ambassatours, which organized the cruise  
ship excursions. Essentially, Absolute would have had more incentive than Coach  
Document: 295480  
- 8 -  
Atlantic to assist in these circumstances. Absolute is now a sister company to Coach  
Atlantic.  
[20]  
Jamie Callaghan provided evidence on behalf of Transoverland. He is the  
Office Manager of the company. Transoverland has operated in Cape Breton for many  
years. It is the largest motor carrier on the island and the predominant licensee servicing  
the Port of Sydney during the cruise ship season.  
[21]  
Mr. Callaghan said this was not the time to put additional vehicles in the  
Sydney market. In his view, the effects of the pandemic are not over. He said the existing  
fleet in the marketplace is not back on its feet after suffering through a difficult period. He  
indicated much of Transoverland’s equipment had sat idle for two years, given the closure  
of the cruise ship seasons, which generated a large portion of its income. The company  
had continued to serve local sports teams, including Cape Breton University’s hockey  
team and the Cape Breton Screaming Eagles. It had also maintained some events  
business, but this had been curtailed by the pandemic.  
[22]  
While he was hopeful of some rebound in private events and the return of  
the cruise ships to Sydney, initial indications were worrisome. In particular, the first ship  
scheduled for Louisburg had cancelled due to weather. That said, before the cancellation,  
it had reduced its request for buses from seven coaches to four. The cruise ship  
scheduled for May 1, 2022 had reduced its initial request for nine coaches down to four.  
The ship, which was to arrive on May 15, 2022, had also reduced the number of coaches  
required. Mr. Callaghan was not sure if this was because there were fewer people than  
expected on the ships, or because fewer people were taking bus tours.  
Document: 295480  
- 9 -  
[23]  
Mr. Callaghan explained that buses had to be ready to meet anticipated  
demand well in advance of the arrival of the cruise ships. These last-minute cancellations  
came with financial consequences beyond the lost revenue.  
[24]  
Mr. Callaghan confirmed Transoverland did not have vehicles with a seating  
capacity of 20 to 28 passengers. They exclusively operate highway motor coaches. He  
said they could, and had, accommodated smaller sized groups with these vehicles.  
[25]  
Interestingly, at the request of the Port of Sydney, Transoverland had  
increased its fleet just prior to the onset of the pandemic. It had also replaced aging  
equipment. Much of this new and expensive equipment has not moved since the  
acquisitions.  
[26]  
Mr. Callaghan maintained that fewer buses would be required for the  
upcoming season. Any addition to the size of the motor carrier fleet in Cape Breton would  
amount to “swapping dollars” between carriers. He said this was unfair to those carriers  
who had made large investments to serve the area’s tourism needs. Mr. Callaghan  
indicated that they required more time to recover, and that consideration of any additions  
should wait until the industry and the Board have a better sense of the extent of the cruise  
ship and tourism rebound.  
[27]  
The evidence of Pengbo was provided by Mr. Fu. Pengbo is authorized to  
operate a regular line service between Sydney and Baddeck. The company is also  
authorized to provide a limited charter service to groups or individuals for the purpose of  
employment or training. It further has very limited back-up charter authorities related to  
some other carriers, which exclude cruise ship work.  
Document: 295480  
- 10 -  
[28]  
The main focus of Mr. Fu’s evidence was that Pengbo had been applying  
for a general charter authority since 2019. This would have allowed him to utilize some  
buses which Pengbo already owned, with similar capacities to that requested by  
Blackwood. His applications had been rejected in prior Board decisions. At the time of  
the hearing, he had an outstanding application before the Board. Mr. Fu suggested that  
if Pengbo’s application was granted, it would meet some of the needs related to the  
smaller groups identified by Blackwood.  
V LAW  
[29]  
As is often the case where lay litigants appear before the Board, the  
distinction between submissions and evidence is not fully appreciated. The Board has  
had considerable experience in assessing the weight to be placed on these types of  
presentations. As well, s. 19 of the Utility and Review Board Act, S.N.S.1992, c. 11,  
provides that the Board is not bound by the strict rules of evidence. Not surprisingly,  
therefore, no objection was taken to hearsay evidence, which was presented, to some  
extent, by all the parties. All the participants were affirmed at the start of the hearing.  
Statements made by the participants were considered as evidence, subject to  
considerations related to weight, no matter at what stage in the proceeding these were  
made.  
[30]  
As well, the state of the motor carrier industry arises in many cases before  
the Board. The Board has also initiated its own generic proceedings where this issue has  
been canvassed [see: Discount Review Decision, 2015 NSUARB 33 and Generic Public  
Document: 295480  
 
- 11 -  
Hearing Decision, 2020 NSUARB 69]. The objecting carriers’ evidence is generally  
consistent with previous matters determined by the Board.  
[31]  
The principles and tests the Board applies with respect to this type of  
application are well known in the provincial motor carrier industry. They have been  
reiterated on many occasions and are well summarized in Re Pengbo Fu o/a Pengbo’s  
Shuttle, 2020 NSUARB 87, affirmed 2020 NSCA 83, at paras. [44] to [47] and [51]:  
[44]  
In Nova Scotia, motor carrier transportation services are regulated under the Motor  
Carrier Act (MC Act). In general, the MC Act regulates motor carrier operators in Nova  
Scotia to ensure there is a quality, safe, sustainable industry in the Province. To accomplish  
this, the Board has been given the jurisdiction to regulate virtually all aspects of the  
industry.  
[45]  
The MC Act provides the following guidance to the Board on matters it may  
consider:  
Factors Considered  
13 Upon an application for a license for the operation of a public passenger  
vehicle or for approval of the sale, assignment, lease or transfer of such a  
license, the Board may take into consideration  
(a) any objection to the application made by any person already providing  
transport facilities whether by highway, water, air or rail, on the routes or  
between the places which the applicant intends to serve, on the ground  
that suitable facilities are, or, if the license were issued, would be in excess  
of requirements, or on the ground that any of the conditions of any other  
license held by the applicant have not been complied with;  
(b) the general effect on other transport service, and any public interest  
that may be affected by the issue of the license or the granting of the  
approval;  
(c) the quality and permanence of the service to be offered by the applicant  
and the fitness, willingness and ability of the applicant to provide proper  
service;  
(ca) the impact the issue of the license or the granting of the approval  
would have on regular route public passenger service;  
(d) any other matter that, in the opinion of the Board, is relevant or material  
to the application.  
These apply equally to amendment applications, ss.12 and 19.  
[46]  
Thus, in assessing an application, the Board considers, among other factors in s.  
13, the public interest; the quality and permanence of service to be offered; general effect  
on other transportation services; and the sustainability of the industry including whether  
there is need for additional equipment in the area. In addressing whether there would be  
Document: 295480  
- 12 -  
an excess of equipment under s. 13(a) above, the Board must consider whether there are  
vehicles currently licensed which could provide the services applied for. In other words, is  
there a need for the services and/or equipment sought by the Applicant?  
[47]  
The MC Act requires the Board to balance, in each case, the various relevant  
issues and interests which may overlap and, at times, conflict. In the Trius Inc. Decision,  
dated September 22, 1993, the Board described the s. 13 considerations as follows:  
The Board has noted in previous decisions that the various considerations  
are not mutually exclusive. They tend to overlap and it is difficult at times  
to isolate one from another. The considerations will not be of equal  
importance in every application. The weight to be put on various  
considerations will depend on the facts of each application.  
[51]  
In each case, the applicant must prove to the Board that, after taking all factors  
into consideration, the Board should grant the application, Molega Tours Limited, 2013  
NSUARB 243, para. 23.  
VI  
SUBMISSIONS  
[32]  
Mr. Jurcina submits that the pandemic is now over. He already has a  
number of days in 2022 where he is completely booked. He submits that it makes no  
economic sense for him to use a carrier such as Transoverland to carry the size of groups  
that comprise his customer base. This is primarily based on the cost of chartering the  
larger highway motor coaches which leaves little to no profit for his company. He says  
the same would be true, although perhaps to a lesser extent, when sub-contracting with  
operators with smaller vehicles.  
[33]  
In addition, Mr. Jurcina says that his customers are seeking a different  
experience than what can be provided by the larger buses operated by Transoverland.  
There is a limited number of carriers with smaller buses. He wants to be able to grow his  
business in this smaller tour group niche market, without the expense and logistical and  
service challenges which arise when all carriers are very busy during the height of the  
cruise ship season. Mr. Jurcina submits that he is an existing licensed carrier in this  
space, which differentiates his company from Pengbo.  
Document: 295480  
 
- 13 -  
[34]  
Mr. Jurcina also submits that a key issue when looking at the public interest,  
is customer choice. He says customers and business are being turned away. The  
availability of more service choices for smaller groups at a reasonable price is key to  
maintaining healthy tourism on Cape Breton.  
[35]  
Mr. Fu agrees with Mr. Jurcina that there is a need for more buses with a  
smaller seating capacity than highway motor coaches on Cape Breton. He says that  
Transoverland, with the assistance of Coach Atlantic and Absolute, is doing a very good  
job at addressing the cruise ship and charter needs in Cape Breton for those requiring  
the larger highway motor coaches. His point is that Pengbo and Blackwood are trying to  
service a different market.  
[36]  
That said, Mr. Fu opposes the application because he applied before  
Blackwood for a small capacity bus to be added to his license. He says that as a matter  
of fairness, his application should be considered and granted before the Board grants an  
additional vehicle to Blackwood. The Board notes that while Pengbo’s initial application  
may have been filed a short time prior to Blackwood’s, both Blackwood and Pengbo have  
been requesting additional capacity of the type considered in this application since 2019.  
[37]  
Mr. Fu further raised the issue of the wheelchair accessible minibus, which  
is currently authorized under the License. The plate is currently on hold. Mr. Fu cannot  
understand why this type of vehicle, which is already part of the authorized fleet, cannot  
be activated to handle the limited number of times when Blackwood may be overbooked  
in 2022.  
[38]  
Coach Atlantic’s position is succinct. It believes Transoverland is a vital  
component of the motor carrier industry on Cape Breton. While Mr. Cassidy appreciates  
Document: 295480  
- 14 -  
the concerns raised by Mr. Jurcina and Mr. Fu, it is his view that now is not the time to  
add capacity which could impact on existing carriers. This is especially the case when  
the application is, in many respects, based on 2019 data and the extent of any recovery  
in the tourism and cruise ship sectors is not yet known.  
[39]  
Transoverland takes the position that Blackwood has not established a  
need for the additional bus. Mr. Callaghan says that the number of occasions when Mr.  
Jurcina had to seek sub-contractors in the past does not warrant the licensing of a 20 to  
28 passenger vehicle. He says there is insufficient evidence, based on current bookings,  
to establish a need for the current season. Mr. Callaghan re-iterated that Transoverland  
has invested heavily in the Sydney market to update and somewhat expand its fleet,  
based on Port of Sydney requests. He submitted the effects of the pandemic were far  
from over and that adding fleet capacity would simply be moving money from one carrier  
to another, particularly where the industry had not normalized to pre-pandemic levels, this  
would have a negative impact on his company.  
VII  
ANALYSIS AND FINDINGS  
[40]  
The Board’s analysis in 2021 NSUARB 47 is an important starting point in  
assessing this application. Many of the issues addressed in that application are germane  
to the current application:  
[29]  
The Board is satisfied that Blackwood has established it had a growing business  
prior to the COVID-19 pandemic. Blackwood provided a service different from  
Transoverland. It catered to a more niche market of smaller groups who did not want to  
travel on large motor coaches. The Board accepts Mr. Jurcina’s position that Blackwood  
provided an opportunity for tourists to visit smaller locales where large motor coach access  
poses difficulties. That said, there was still a probability of some overlap with  
Transoverland’s operations.  
[30]  
The Board further finds that, at the time the application was made, Blackwood was  
having to scramble to provide service to its customers. While Mr. Jurcina was able to find  
Document: 295480  
 
- 15 -  
sufficient transport services through other licensed carriers and the taxi industry, the  
situation was not ideal. This said, the Board notes Mr. Jurcina suggested under the table  
cash transactions were required to obtain certain services. This is not a factor which  
weighs in the applicant’s favour.  
[31]  
Unlike many applications, the issue of competition with idle buses during off-peak  
hours might not be as pronounced, given that Blackwood currently only operates during  
the cruise ship season. This is a time when most of the motor carrier industry in Sydney  
is often fully booked.  
[32]  
Blackwood’s service is different from that of Pengbo’s Shuttle, which currently has  
no authority to provide service to cruise ships at all. Pengbo’s Shuttle only has a limited  
charter authority. While Mr. Fu has made attempts to obtain wider charter authorizations,  
to date he has not been successful. There would therefore be no current impact on  
Pengbo’s Shuttle if a license amendment was granted.  
[33]  
The Board finds the impact on Markie Tours would be limited. While Markie Tours  
may do some work on Cape Breton Island, as Mr. Markie explained, it would primarily  
originate from the mainland. This would ordinarily not be related to the Sydney cruise ship  
industry. As Mr. Jurcina explained, it would likely often be cost-prohibitive to do contract  
work with Markie Tours in relation to Sydney cruise ships, given the travel distance from  
Truro.  
[34]  
The evidence as to whether the existing licensed carriers could service  
Blackwood’s current overflow is perhaps not as cogent as the other aspects of the  
application related to a niche market and a growing business. That said, Blackwood has  
clearly had to go outside the motor carrier industry. As well, it appears some of  
Blackwood’s competitors, who offer a similar service with smaller buses, are supportive of  
the application.  
[35]  
As discussed in a recent Board decision, there is no precisely defined test for when  
there is a need for a service in a particular area [see: McNeil (Halifax Titanic Historical  
Tours) (Re), 2021 NSUARB 35 ].  
[36]  
Protecting licensed carriers from unsustainable competition is a strong component  
of the legislative scheme. That said, in ordinary circumstances, where a smaller existing  
licensed carrier, with significant growth potential, shows that a type of niche service is  
required by a segment of the tourism industry which is underserved, with sufficiently  
persuasive supporting evidence, it would weigh heavily in the balance. There was at least  
some evidence of this type. That evidence was relatively anecdotal.  
[40]  
The Board is persuaded that no need has been demonstrated for the additional  
requested vehicle for any authorized charter activities under the extra-provincial license.  
As well, there was no evidence adduced showing a need in parts of Nova Scotia beyond  
Cape Breton. The expressed need appears limited to the cruise ship business at the Port  
of Sydney. It is, therefore, clear that Blackwood has not met the standard of proof for the  
full scope of its application. That said, the Board has considered whether a more limited  
scope of amendment, where the use of the additional bus requested in the application  
would be tied to operations at the Port of Sydney, could be granted.  
[41]  
Unfortunately, despite there being at least some positive factors in the applicant’s  
favour as the situation existed in 2019, this application comes before the Board for a  
hearing at a very inopportune time. Blackwood, which operates exclusively during the  
cruise ship season, has no confirmed bookings for 2021 or beyond. While at the time of  
Document: 295480  
- 16 -  
the hearing Mr. Jurcina expressed some confidence that there would be cruise ships  
visiting the Port of Sydney in 2021, the objecting carriers expressed skepticism and  
concern.  
[43]  
The Board has no reliable evidence with respect to Blackwood’s future post-  
pandemic prospects, in what Mr. Carabin described as a new reality. In fact, the Board  
has no hard evidence related to what can be anticipated for any of the licensed motor  
carriers who participated in the hearing.  
[44]  
The Board also has no reliable evidence as to the prospects of other smaller  
carriers on Cape Breton, such as Cabot Discovery Tours Inc., who either supported the  
application, or those who chose not to participate based on the 2019 reality. What is known  
is that the current situation is very difficult and has caused a large loss of business in the  
motor carrier industry, including essentially the mothballing of Blackwood’s operations.  
[45]  
In these circumstances, the Board simply has no reliable evidence as to what the  
need for Blackwood’s service will be on a go-forward basis. Blackwood cannot, therefore,  
establish there is a demand for an expanded service which cannot be serviced, in future,  
by other licensed motor carriers. Blackwood cannot establish that the growth the company  
experienced will be maintained on a go-forward basis.  
[41]  
The Board is of the view that the evidence in this proceeding indicates the  
state of the tourism and cruise ship industry for 2022 is still in a state of flux. The fact  
there have been significant reductions in charter bus demands early in the season is of  
concern. There is a relatively small sample size to indicate significant issues with  
overbooking with respect to Blackwood. While Mr. Jurcina said there were eight days  
when his vehicles are fully booked, it is unknown how many more tours might be  
generated for those same dates.  
[42]  
A review of the information from the 2019 season indicated there were  
approximately 26 days between August 6 and October 27 when Blackwood had to seek  
the assistance of taxis. On some days more than one taxi was needed. While Mr. Jurcina  
said there would be others which were not recorded, it is difficult for the Board to make  
an assessment of these undocumented transactions. As explained during the hearing,  
the foregoing 2019 overbooking occurred when Blackwood had leased a vehicle for two  
Document: 295480  
- 17 -  
months pursuant to its wheelchair accessible bus authority. It also has its own minibus  
and Commercial Vehicle in service.  
[43]  
The Board has continually warned it has concerns related to financial  
viability, which raises potential safety issues, when carriers make investments in  
expensive equipment for a limited number of days when there is overbooking. Mr. Jurcina  
says it is cheaper to finance the purchase (or potentially the lease) of a bus than it is to  
sub-contract with another carrier. This may be true if only the financing costs are  
included, but as pointed out by Mr. Fu, that financial analysis does not include all  
operating costs.  
[44]  
In this regard, as Mr. Fu raised in questioning and submissions, the Board  
notes that Blackwood already has, under the terms of the License, authority to use a  
wheelchair accessible vehicle with a seating capacity of 14 passengers. This vehicle has  
all the same charter authorities as the 13-passenger minibus which is listed on the  
License. Authorizing a new vehicle, along with the existing vehicle plate on hold, would  
mean Blackwood would have seating capacity for between 34 and 42 passengers beyond  
what the company is presently booking.  
[45]  
Given the potential for a reduced cruise ship season, when compared to  
2019, the evidence does not currently establish that Blackwood has this level of need for  
additional seating capacity. Granting the application in its current form would create an  
excess of equipment which could have a negative impact on other licensed carriers. That  
said, while the Board has expressed concern with adding capacity in the industry where  
the ongoing impacts of the COVID-19 pandemic remain uncertain, it does not want to be  
Document: 295480  
- 18 -  
inflexible in its approach. Each case must be judged on the evidence and submissions  
before it.  
[46]  
The Board is also concerned about the availability of affordable and diverse  
choices for smaller groups in the Cape Breton market. Depending on the size of the  
group, the minimum rates for highway motor coaches with a seating capacity of 47 to 58  
passengers could make for a relatively higher cost per person for these smaller groups,  
when compared with the per person rates for vehicles of the type currently operated by  
Blackwood. Perhaps more importantly, the highway motor coach experience, which is  
sought after by many, may not be what particular groups are looking for, as evidenced by  
the growth in Blackwood’s business.  
[47]  
Blackwood is in a different situation than Pengbo. Pengbo’s recent  
application was to expand its very limited charter service associated with one 28-  
passenger vehicle. Because of its currently limited charter authorities, Pengbo would  
essentially, for all practical purposes, be a new entrant in Cape Breton. Its application  
was denied on the basis granting the application would create an excess of equipment in  
the market (see: 2021 NSUARB 77).  
[48]  
As discussed in the Board’s 2021 decision, Blackwood was a successful  
and growing charter tour operator prior to the COVID-19 pandemic mothballing its  
operation. Unlike Pengbo, with its limited charter authorities, Blackwood had established  
a niche market and should be given an opportunity to expand. While the season is young,  
Mr. Jurcina has provided some evidence of promising trends for his business, despite the  
concerning evidence provided by Mr. Callaghan about the reduction in demand related to  
the first three cruise ships of the season.  
Document: 295480  
- 19 -  
[49]  
Given the number of cases where Blackwood had reached its full capacity  
in 2019, and the limited number of occasions to date in 2022, it would seem to the Board  
that Blackwood could achieve its additional capacity requirements by activating a  
wheelchair accessible bus, or potentially replacing it with another type of minibus with a  
similar capacity, under the License, through the Board’s administrative practices.  
[50]  
That said, in order to provide some flexibility, the Board would also be  
prepared to add the vehicle requested in this application, as long as the existing inactive  
authority related to the wheelchair accessible bus is cancelled. This would only add an  
additional capacity of 6 to 14 passengers from what Blackwood currently holds. This  
would have a more limited impact than, for example, Pengbo’s application, or the  
application as Blackwood has currently framed it.  
[51]  
At this stage Blackwood must choose. It can choose to activate the  
currently authorized wheelchair accessible vehicle, replace it with a similar capacity  
vehicle, or cancel the authority for that vehicle and add a 20 to 28 passenger vehicle to  
its License. If Blackwood chooses to keep the current wheelchair accessible vehicle plate  
on hold, or replace it with one having a similar seating capacity, no authority for a new  
vehicle will be granted at this time.  
[52]  
Blackwood has not shown a need for both the currently inactive authorized  
vehicle and a new 20 to 28 passenger vehicle. The Board will leave the determination to  
Mr. Jurcina as to what course of action best suits Blackwood’s business model. Mr.  
Jurcina is to contact the Board within 15 business days to advise how he wishes to  
proceed, at which point an Order will be issued to finalize this matter.  
Document: 295480  
- 20 -  
VIII CONCLUSION  
[53] The Board has reviewed and considered all of the evidence and  
submissions in this matter. Applying the applicable law, and the tests developed by the  
Board, it finds that, on a balance of probabilities, Blackwood has not shown that the  
factors set out in s. 13 of the MCA favour the granting of this application in its current  
form. The Board is not satisfied that there is currently, as the cruise ship industry begins  
to recover from a pandemic, and in the context of the unused seating capacity Blackwood  
already has on hold, sufficient demand for an additional charter bus with a capacity of  
between 20 and 28 passengers to warrant the granting authority for a new vehicle, as  
requested.  
[54]  
The Board has provided Blackwood the options of activating its wheelchair  
accessible vehicle authority, replacing it through the Board’s administrative practices, or  
cancelling the authority for the currently authorized wheelchair accessible bus and  
replacing it with a 20 to 28 passenger vehicle.  
[55]  
The application is, therefore, held in abeyance until Blackwood advises of  
its decision. If Blackwood chooses not to pursue any of the options suggested by the  
Board, the application will effectively have been denied.  
[56]  
An Order will issue accordingly in due course, once Blackwood has advised  
the Board of its intentions.  
DATED at Halifax, Nova Scotia, this 27th day of May, 2022.  
______________________________  
Richard J. Melanson  
Document: 295480  
 



© 2019 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission