A-441-79
In re an appeal by Bell Canada concerning a
decision of the Canadian Radio-television and
Telecommunications Commission, dated March 8,
1979 (Telecom. Decision CRTC 79-5)
Court of Appeal, Pratte, Ryan JJ. and Hyde
D.J.—Montreal, February 1; Ottawa, February
17, 1982.
Telecommunications — Appeal under s. 64(2) of National
Transportation Act — Appellant, Bell Canada, and B.C. Tel.
applied for rate increases — CRTC retained consultants to
carry out studies before hearing the applications — CRTC
ordered appellant and B.C. Tel. to pay costs of studies
Whether CRTC exceeded jurisdiction — Interpretation of
"costs" in s. 73 of National Transportation Act — Canadian
Radio-television and Telecommunications Commission Act,
S.C. 1974-75-76, c. 49, s. 14(2),(3) — National Transporta
tion Act, R.S.C. 1970, c. N-17, ss. 6(1),(2), 10(1), 12, 13, 14,
16, 43, 45(3), 57, 64(2), 73 — Railway Act, R.S.C. 1970, c.
R-2, s. 2(1) — Supreme Court of Judicature (Consolidation)
Act, 15 & 16 Geo. 5, c. 49, s. 50.
The appellant, Bell Canada, and British Columbia Telephone
Company (B.C. Tel.) applied to the Canadian Radio-television
and Telecommunications Commission (CRTC) for the approv
al of rate increases for services and facilities furnished through
out Canada by the members of the Trans-Canada Telephone
System (T.C.T.S.). The CRTC retained a firm of consultants
to carry out studies on T.C.T.S. settlement procedures and
other matters and ultimately ordered, on the basis of sections
57 and 73 of the National Transportation Act, that the appel
lant and B.C. Tel. pay the costs of the studies. The appellant
argues that neither section 73 nor any other provision of the
Act authorized the CRTC to order the telephone companies to
pay the fees because those fees were not "costs" within the
meaning of section 73. According to the appellant, the word
"costs" must be given its normal legal meaning; it would follow
that the costs of a proceeding do not include the expenses
incurred by the tribunal in order to hear and determine that
proceeding. Counsel for the CRTC and the intervenor argue
that the proceedings before the CRTC are not adversarial in
nature and that section 73 must be given a wider interpretation
so as to confer on the CRTC all the powers it needs to perform
its functions.
Held, the appeal is allowed. The word "costs" in section 73
of the National Transportation Act must be given its normal
legal meaning according to which the costs of a proceeding are
the costs incurred by the parties or participants in that proceed
ing and do not include the expenses of the tribunal before
which the proceedings are brought. Much of the language in
section 73 is normally used in association with court costs: costs
may be fixed at a sum certain or taxed; a scale of costs may be
prescribed. Consideration may also be given to the phrase
"costs of and incidental to any proceeding" found in section 73,
National Transportation Act, and being similar to that of
section 50 of the Supreme Court of Judicature (Consolidation)
Act. If another interpretation were to prevail, the CRTC would
have the right to force the utility companies which the law
obliges to appear before it to defray part of its expenses. This
would be contrary to the general policy of the National Trans
portation Act following which the expenses of the CRTC are to
be paid out of public funds rather than by the utility companies
that are subject to its jurisdiction. There is no provision in the
Act which would confer on the CRTC the power that it
exercised here. The authority of the CRTC did not flow from
section 57 nor subsection 45(3). The experts retained by the
CRTC were not assessors, and section 14 of the Act makes
clear that if the CRTC needs to sit with assessors, they have to
be appointed by the Governor in Council.
APPEAL.
COUNSEL:
F. Mercier, Q.C. and J.-P. Belhumeur for
appellant Bell Canada.
C. Thomson, Q.C. and G. MacKenzie for
respondent Canadian Radio-television and
Telecommunications Commission.
C. Johnston, Q.C. for participant British
Columbia Telephone Company.
A. J. Roman for intervenor National Anti-
Poverty Organization.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for appellant Bell Canada.
Campbell, Godfrey & Lewtas, Toronto, for
respondent Canadian Radio-television and
Telecommunications Commission.
Johnston & Buchan, Ottawa, for participant
British Columbia Telephone Company.
A. J. Roman, % The Public Interest
Advocacy Centre, Ottawa, for intervenor Na
tional Anti-Poverty Organization.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an appeal under subsection
64(2) of the National Transportation Act, R.S.C.
1970, c. N-17, from a decision rendered under that
Act by the Canadian Radio-television and Tele-
communications Commission (CRTC).'
On March 15, 1978, the appellant, Bell Canada,
applied to the CRTC for the approval of increases
in the rates for a number of services and facilities
furnished on a Canada-wide basis by the members
of the Trans-Canada Telephone System
(T.C.T.S.). A similar application was later filed by
British Columbia Telephone Company (B.C. Tel.).
On August 4, 1978, the CRTC issued a public
notice announcing its intention not to proceed to
the hearing of those applications before it had
obtained from a firm of consultants studies of the
T.C.T.S. settlement procedures and of other mat
ters related to the applications. The Commission
also expressed in that notice its intention to charge
the costs of those studies to the appellant and B.C.
Tel. The reasons for the Commission's proposed
course of action appeared from the following pas
sage of the notice:
As noted above, the material filed with the Commission
respecting the settlement process is complex and voluminous.
The Commission considers that proceeding to a hearing stage
at this time on the fairness and adequacy of the settlement
procedures would be premature. In addition, there are a
number of other issues which warrant review and for which
more preparation is required. As a preliminary matter, it is
essential to organize the information in a useful way, fill in any
gaps, and provide explanatory reports ahead of any hearing so
that interested parties may be able to understand the implica
tions of the material and contribute usefully. In addition, the
Commission is concerned that any such studies should take into
account concerns raised by the provincial regulatory agencies
interested in this matter.
Taking these concerns into account, therefore, the Commission
has decided to retain a firm of consultants to carry out an
extensive study of TCTS settlement procedures and other
matters. The Commission will also invite each regulatory
agency in Canada responsible for regulating telephone rates
within a province to nominate a senior staff member to a
committee which will monitor the progress of the consultants
work and act as a liaison between the respective agencies.
The Commission considers that the availability of independent
studies of this kind is essential before a meaningful hearing on
TCTS rates or practices can be held. Since the costs of the
studies are so closely related to the forthcoming proceeding, the
Commission proposes to tax such costs against Bell Canada and
B.C. Telephone Company, the two principal companies affect
' Pursuant to subsections 14(2) and (3) of the Canadian
Radio-television and Telecommunications Commission Act
(S.C. 1974-75-76, c. 49) the CRTC now exercises, in relation
to telecommunications other than broadcasting, the powers that
are vested in the Canadian Transport Commission by the
National Transportation Act.
ed, on a pro rata basis according to their annual revenues. Both
companies will be given an opportunity to comment on the
proposal once the consultants have been selected and the terms
of their contract have been determined.
Following the issuance of that notice, the Com
mission discussed its proposal with the appellant
and B.C. Tel. and, ultimately, on March 8, 1979,
rendered a decision the operative part of which
read as follows:
It is therefore ordered pursuant to Sections 57 and 73 of the
NTA, that Bell Canada and B.C. Tel. pay costs in respect of
studies to be performed by Peat, Marwick and Partners in
preparation for a public hearing to consider whether the rates
applied for in the applications by Bell Canada and B.C. Tel. are
lawful under Sections 320 and 321 of the Railway Act. The
costs shall be paid in the following manner:-
1. Bell Canada and B.C. Tel. shall upon receipt of monthly
invoices approved by the Commission, make the appropriate
payments directly to Peat, Marwick and Partners.
2. Bell Canada shall pay 77% of the amount approved in each
invoice and B.C. Tel. 23%.
3. The total amount payable by both companies shall not
exceed the amount of $408,000.00.
That is the decision which is the subject of this
appeal which raises but one issue: had the CRTC
the authority to order Bell Canada to pay the fees
of the consultants retained by the Commission?
The appellant does not challenge the usefulness of
the studies performed by the Commission's con
sultants; it does not question, either, the authority
of the Commission to retain consultants to perform
those studies; its sole contention is that the Com
mission exceeded its jurisdiction in ordering it and
B.C. Tel. to pay for those studies.
As the CRTC, in making the decision under
attack, was exercising the powers vested in the
Canadian Transport Commission by the National
Transportation Act [supra], the question to be
resolved is whether that Act confers on the
Canadian Transport Commission the power to
render such a decision. The following provisions of
the National Transportation Act seem to be rele
vant to that question:
6. (1) There shall be a commission, to be known as the
Canadian Transport Commission; consisting of not more than
seventeen members appointed by the Governor in Council.
(2) The Commission is a court of record and shall have an
official seal which shall be judicially noticed.
10. (1) There shall be a Secretary to the Commission who
shall be appointed by the Governor in Council to hold office
during pleasure.
12. (1) Such other officers and employees as are necessary
for the proper conduct of the business of the Commission may
be appointed in the manner authorized by law.
(2) The officers and employees attached to the Commission
may be paid out of moneys appropriated by Parliament for the
purpose.
13. (1) The Governor in Council shall, upon the recommen
dation of the Minister, provide within the city of Ottawa, a
suitable place in which the meetings of the Commission may be
held, and also suitable offices for the commissioners, and for
the Secretary, and the other officers and employees of the
Commission, and all necessary furnishings, stationery and
equipment for the conduct, maintenance and performance of
the duties of the Commission.
(2) The Governor in Council, upon the recommendation of
the Minister, may establish at any place or places in Canada
such office or offices as are required for the Commission, and
may provide therefor the necessary accommodation, furnish
ings, stationery and equipment.
14. The Governor in Council may, from time to time, or as
the occasion requires, appoint one or more experts, or persons
having technical or special knowledge of the matters in ques
tion, to assist in an advisory capacity in respect of any matter
before the Commission.
16. The salaries or other remuneration of all officers and
employees of the Commission, and all the expenses of the
Commission incidental to the carrying out of its duties and
functions, including all actual and reasonable travelling
expenses of the commissioners and the Secretary, and of such
members of the staff of the Commission as may be required by
the Commission to travel, necessarily incurred in attending to
the duties of their office, shall be paid twice monthly out of
moneys provided by Parliament.
45....
(3) The Commission, as respects the attendance and exami
nation of witnesses, the production and inspection of docu
ments, the enforcement of its orders, the entry on and inspec
tion of property, and other matters necessary or proper for the
due exercise of its jurisdiction, has all such powers, rights and
privileges as are vested in a superior court.
57. (1) The Commission may direct in any order that such
order or any portion or provision thereof, shall come into force
at a future time or upon the happening of any contingency,
event or condition in such order specified, or upon the perform
ance to the satisfaction of the Commission, or a person named
by it, of any terms which the Commission may impose upon
any party interested, and the Commission may direct that the
whole, or any portion of such order, shall have force for a
limited time, or until the happening of a specified event.
(2) The Commission may, instead of making an order final in
the first instance, make an interim order, and reserve further
directions either for an adjourned hearing of the matter, or for
further application.
73. (1) The costs of and incidental to any proceeding before
the Commission, except as herein otherwise provided, are in the
discretion of the Commission, and may be fixed in any case at a
sum certain, or may be taxed.
(2) The Commission may order by whom and to whom any
costs are to be paid, and by whom they are to be taxed and
allowed.
(3) The Commission may prescribe a scale under which such
costs shall be taxed.
The Commission, in its decision, relied on sec
tions 57 and 73 as the source of its power. It is
clear that the authority of the Commission to
make the decision under attack did not flow from
section 57. It is the appellant's position that nei
ther section 73 nor any other provision of the Act
authorized the Commission to act as it did.
According to the appellant, section 73 did not
empower the Commission to order the two tele
phone companies to pay the fees of Peat, Marwick
and Partners because those fees were not "costs"
within the meaning of that section.
The word "costs", says the appellant, has a well
settled legal meaning which is: the expenditures
incurred by litigants by reason of their being par
ties to legal proceedings. It follows, continues the
appellant, that the costs of a proceeding do not
include the expenses incurred by the tribunal in
order to hear and determine that proceeding. 2
Counsel for the CRTC and for the National
Anti-Poverty Organization conceded that, when it
is used with reference to ordinary legal proceed
ings, the expression "costs" has that restricted
meaning. They argued, however, that the proceed
ings before the Commission are not ordinary pro
ceedings since they are not adversarial and they
2 Pursuant to section 43 of the National Transportation Act,
the words used in Part IV of that Act have the same meaning
as in the Railway Act (R.S.C. 1970, c. R-2). Section 73 is
contained in Part IV of the National Transportation Act; it
must, therefore, be read in the light of the word "costs" found
in subsection 2(1) of the Railway Act:
2....
"costs" includes fees, counsel fees and expenses;
That definition does not assist in answering the question raised
by this appeal. Counsel for the appellant stressed, however, that
nothing in that definition indicates an intention to depart from
the normal meaning of the word "costs".
invited the Court to give the word "costs" in
section 73 a wide interpretation so as to confer on
the Commission all the powers that it needs to
perform its functions.
True, proceedings before the Commission are
different from ordinary litigation. When a tele
phone company asks the Commission to approve a
rates increase which is opposed by interveners,
there is, strictly speaking, no lis between the appli
cant and the interveners. However, rates applica
tions are not the only proceedings that may be
brought before the Commission. Other proceed
ings, for example complaints against companies
which are subject to the Commission's jurisdiction,
resemble ordinary litigation. Moreover, even in
clearly non-adversarial proceedings like applica
tions for the approval of rates, there may be cases
where, like in ordinary litigation, it appears just to
oblige a participant in those proceedings to com
pensate the other participants for the expenses that
they have incurred by reason of their participation
in those proceedings. The fact that the proceedings
before the Commission be not adversarial is not, in
my view, an answer to the appellant's argument.
Nor is it an answer to say that the Commission
needs the power that it exercised in this case. The
Commission certainly has to be provided with the
information and expert help necessary to enable it
to perform its functions in an enlightened manner.
No one could contest that. It does not follow,
however, that the Commission needs the power to
make the utility companies or other parties
appearing before it pay for the expenses incurred
by the Commission in the normal performance of
its jurisdiction. The Commission may need, and
may possess, the power to charge to an applicant
expenses incurred by the Commission as a conse
quence of that applicant's failure to provide all the
information that had to be communicated to the
Commission. However, such is not the situation
here. The power which the Commission has assert
ed in this case is the power to oblige participants in
proceedings before it to defray the expenditures
normally incurred by it in the performance of its
jurisdiction when those expenditures may be iden
tified as being incidental to the proceedings in
which those participants are engaged.
In my view, the word "costs" in section 73 of the
National Transportation Act must, as argued by
the appellant, be given its normal legal meaning
according to which the costs of a proceeding are
the costs incurred by the parties or participants in
that proceeding and do not include the expenses of
the tribunal before which the proceedings are
brought. 3 I do not see any reason to give it a wider
meaning. I am confirmed in this opinion by the
fact that much of the language used in section 73
is normally used in association with court costs. I
have in mind the phrase "costs of and incidental to
all proceedings" (which is found in section 50 of
the English Supreme Court of Judicature (Con-
solidation) Act, 1925, 15 & 16 Geo. 5, c. 49), the
reference to the possibility that costs be fixed at a
sum certain or taxed and that the Commission
prescribe a "scale" (in the French text: "tarif') of
costs. If another interpretation were to prevail, the
Commission would have the right to force the
utility companies which the law obliges to appear
before it to defray part of its expenses. This, in my
opinion, would be contrary to the general policy of
the National Transportation Act following which
the expenses of the Commission are to be paid out
of public funds rather than by the utility compa
nies that are subject to its jurisdiction.
Moreover, leaving aside section 73, I cannot find
in the National Transportation Act any provision
conferring on the Commission the power that it
exercised in this case. Counsel for the National
Anti-Poverty Organization suggested that this
power flowed from subsection 45(3) and that, in
retaining the consultants and in ordering the
appellant and B.C. Tel. to pay their fees, the
Commission had merely exercised the inherent
power vested in superior courts to appoint asses
sors and to direct that their remuneration be paid
by the parties. I do not agree. Assuming that
superior courts have that inherent power, I am of
opinion that the experts here retained by the Com
mission were not assessors; I am also of opinion
that section 14 makes clear that if the Commission
needs to sit with assessors, they have to be appoint
ed by the Governor in Council.
For these reasons, I would allow the appeal.
RYAN J.: I concur.
HYDE D.J.: I concur.
3 See: Halsbury's Laws of England, Third Edition, Vol. 11,
p. 293; Ballentine's Law Dictionary, p. 277; Black's Law
Dictionary, p. 312; Jowitt's Dictionary of English Law, Vol. 1,
p. 507; Wharton's Law Lexicon, 13th Edition, p. 230.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.