Judgments

[1993] 3 F.C. 179

A-1500-92

British Columbia Telephone Company (Appellant)

v.

Shaw Cable Systems (B.C.) Ltd. (Respondent)

and

Telecommunications Workers Union (Interested Person)

Indexed as: British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd. (C.A.)

Court of Appeal, Heald, Mahoney and McDonald JJ.A.—Ottawa, May 4 and 12, 1993.

Telecommunications — CRTC decision requiring B.C. Tel to allow cable licensees to install own cable on its support structures — Arbitration board having held to do so breach of collective agreement — Nothing in relative importance of mandates of CRTC and arbitration board or in expertise of members indicating either decision paramount as bears incidentally on other — Whether certain work covered by collective agreement question of labour relations, not regulation of telephone tolls — Arbitration board interpreting collective agreement, not interfering with CRTC's jurisdiction — While CRTC having “plenitude of powers” to prevent undue preference, not having power to require company subject to its regulatory mandate not comply with collective bargaining obligations bona fide undertaken.

Labour relations — Arbitration board having held B.C. Tel in breach of collective agreement for allowing cable licensees to install own cable on its support structures — CRTC ordering practice continue — Two decisions irreconcilable, leading to patently unreasonable results — While expertise of arbitration board members less obvious than that of CRTC, Canada Labour Code insulating board proceedings from judicial interference — Determination whether work that reserved for Union members by collective agreement question of labour relations — CRTC lacking power to require B.C. Tel to breach collective agreement.

This was an appeal from an order of the CRTC. B.C. Tel provides telephone service in British Columbia by means of a support structure of poles and aerial cable and buried conduit which it owns. Shaw and other cable television licensees provide cable television service in British Columbia. Their cables are installed on and in B.C. Tel's support structure. The collective agreement between B.C. Tel and the Telecommunications Workers Union (TWU) requires that certain work on B.C. Tel's poles and aerial cables and in its underground conduit system be performed by members of the TWU. An arbitration board, constituted under Canada Labour Code, section 57, held that when B.C. Tel permitted cable licensees to install their cable on and in its support structures, it had breached the collective agreement. Pursuant to an application under the National Telecommunications Powers and Procedures Act (“NTPPA”), section 49 the CRTC held that B.C. Tel must permit cable licensees to install their own cable on B.C. Tel support structures. The issue was whether the CRTC had erred in law or exceeded its jurisdiction by failing to defer to the decision of the arbitration board or, in the alternative, by ordering B.C. Tel to violate the collective agreement.

Held, the appeal should be allowed.

The CRTC exceeded its jurisdiction by requiring that B.C. Tel again violate the terms of the collective agreement.

This was not a case of two tribunals vested with jurisdiction to decide an identical question. Nor was the issue one of deference in the sense of the deference required of courts in reviewing the decisions of administrative tribunals. Neither the CRTC nor the arbitration board was empowered to vary or interfere with the decision of the other. Their respective jurisdictions did not overlap. They simply lead to irreconcilable and therefore patently unreasonable results. To resolve patently unreasonable results where they flow from conflicting decisions of different tribunals, the Court should compare the competing constituting enactments, their purposes and the purposes of the tribunals in the legislative schemes, the respective areas of expertise and the nature of the problem that has given rise to the unreasonable result. Under Railway Act, sections 335 and 339, as reiterated in NTPPA, sections 49 and 50, the CRTC has the jurisdiction and mandate to regulate all relevant aspects of B.C. Tel's business. Section 340 confers the jurisdiction and duty to regulate tolls so as to preclude undue preference. The “person or company” to whom undue preference is forbidden may be the company itself. The CRTC has identified since 1978 the requirement that cable licensees and their contractors be given access to the support structures to install cable as a means of avoiding B.C. Tel being accorded an undue advantage or preference. The powers vested in the CRTC by the Railway Act and the NTPPA are required to be exercised by its full-time members. Thus their expertise in determining reasonable tolls and the implicit avoidance of undue preference is to be accepted as a matter of fact as well as law. Subsection 68(1) of the NTPPA provides for an appeal, with leave, to this Court on a question of law or of jurisdiction. An arbitration board constituted in accordance with a collective agreement pursuant to the Canada Labour Code is a statutory tribunal. It is inherently an ad hoc tribunal, and the expertise of its members in the special area of its responsibilities is not as evident as the expertise of full-time members of the CRTC in their area. Nonetheless, Canada Labour Code, section 58 insulates the proceedings of an arbitration board from judicial interference, and declares it not to be a federal board, commission or other tribunal. Nothing in the relative importance of the mandates of the CRTC and the arbitration board or in the expertise of their members indicated that the decision of one was paramount as it bore incidentally on the decision of the other.

The determination whether or not work fell within the types of work reserved for union members under the collective agreement was a question of labour relations rather than the regulation of telephone tolls. The arbitration board did not interfere with the CRTC's determination in the exercise of its jurisdiction to regulate tolls that, to avoid an undue advantage to B.C. Tel, the licensees had to be given access for installation purposes to the support structures. It simply interpreted the collective agreement. The collective agreement gave rise to the problem. While the CRTC has been given a “plenitude of powers” to prevent undue preference, it does not have the power to require that a company subject to its regulatory mandate not comply with collective bargaining obligations bona fide undertaken.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Labour Code, R.S.C., 1985, c. L-2, ss. 57, 58.

Canadian Radio-television and Telecommunications Commission Act, R.S.C., 1985, c. C-22, s. 12 (as am. by S.C. 1991, c. 11, s. 80).

Federal Court Act, R.S.C., 1985, c. F-7, s. 52.

National Telecommunications Powers and Procedures Act, R.S.C., 1985, c. N-20 (as am. by R.S.C., 1985 (3rd Supp.), c. 28, s. 301), ss. 49, 50, 68.

Railway Act, R.S.C., 1985, c. R-3, ss. 335 (as am. by S.C. 1991, c. 11, s. 86), 339 (as am. by S.C. 1991, c. 37, s. 2), 340.

CASES JUDICIALLY CONSIDERED

APPLIED:

U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; (1988), 35 Admin. L.R. 153; 95 N.R. 161; Transvision (Magog) Inc. v. Bell Canada, [1975] CTC 463 (CTC); Bell Canada v. Challenge Communications Ltd., [1979] 1 F.C. 857; (1978), 86 D.L.R. (3d) 351; 22 N.R. 1 (C.A.); CNCP Telecommunications v. Canadian Business Equipment Manufacturers Association, [1985] 1 F.C. 623; (1985), 20 D.L.R. (4th) 179; 5 C.P.R. (3d) 34; 60 N.R. 364 (C.A.); Roberval Express Ltée v. Transport Drivers, Warehousemen and General Workers Union, Local 106, et al., [1982] 2 S.C.R. 888; (1982), 144 D.L.R. (3d) 673; 83 C.L.L.C. 14,023; 47 N.R. 34; St. Anne Nackawic Pulp& Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; (1986), 73 N.B.R. (2d) 236; 28 D.L.R. (4th) 1; 184 A.P.R. 236; 86 CLLC 14,037; 68 N.R. 112.

DISTINGUISHED:

Mount Enterprise Independent School Dist. v. Colley, 424 S.W. 2d 650 (Texas Civ. App. (1968).

CONSIDERED:

Telecommunications Workers Union v. Canada (Radio-Television and Telecommunications Commission), A-915-92, Mahoney J.A., judgment dated 12/5/93, F.C.A., not yet reported.

APPEAL from CRTC decision requiring B.C. Tel to allow cable licensees to install their own cable on B.C. Tel support structures, contrary to an arbitration board decision that to do so was a violation of the collective agreement. Appeal allowed.

COUNSEL:

Judy Jansen for appellant.

C. Christopher Johnston and Christopher A. Taylor for respondent Shaw Cable Systems (B.C.) Ltd.

Morley D. Shortt for Telecommunications Workers Union.

Carolyn G. Pinsky for CRTC.

SOLICITORS:

Farris, Vaughan, Wills & Murphy, Vancouver, for appellant.

Johnston, Buchan & Dalfen, Ottawa, for respondent Shaw Cable Systems (B.C.) Ltd.

Shortt, Moore & Arsenault, Vancouver, for Telecommunications Workers Union.

CRTC Legal Directorate, Ottawa, for CRTC.

The following are the reasons for judgment rendered in English by

Mahoney J.A.: The appellant, hereinafter “B.C. Tel”, has a dilemma. If it complies with Telecom Letter Decision CRTC 92-4 of the Canadian Radio-television and Telecommunications Commission, hereinafter “CRTC”, it will violate its collective agreement with the Telecommunications Workers Union, hereinafter “TWU”, as determined by an arbitration board constituted under section 57 of the Canada Labour Code.[1] If it complies with the relevant requirement of the collective agreement it cannot comply with an order made by the CRTC in the exercise of its authority under the National Telecommunications Powers and Procedures Act,[2] hereinafter “NTPPA”, and the Railway Act.[3] The collective agreement requires that certain work on B.C. Tel's poles and aerial cables and in its underground conduit system be performed by members of the TWU while Telecom Letter Decision CRTC 92-4 requires that it permit the respondent, hereinafter “Shaw”, a cable licensee, to do that work.

The Issues

B.C. Tel submits that the CRTC erred in law or exceeded its jurisdiction by failing to defer to the decision of the arbitration board and, in the alternative, by ordering B.C. Tel to violate the collective agreement. TWU supports B.C. Tel and, in a parallel proceeding for judicial review,[4] alleges a denial of natural justice by reason of the failure of the CRTC to afford it the opportunity to be heard prior to making Telecom Letter Decision CRTC 92-4. The latter matter is discrete and will be dealt with in separate reasons. Shaw asserts no error in law or excess of jurisdiction and the CRTC appeared to defend its jurisdiction.

The History

The facts are not in dispute. B.C. Tel provides telephone service in British Columbia. It does so by means of a support structure of poles and aerial cable and buried conduit, which it owns. Shaw and other cable television licensees provide cable television service in British Columbia. Their cables are installed on and in B.C. Tel's support structure. The collective agreement between B.C. Tel and TWU has at all material times provided, and still provides, that:

Any work having to do with the maintenance, repair, alteration or construction of the telephone plant shall be assigned to qualified journeymen telephone workers, shopmen, or to apprentices under the supervision of journeymen.

Since about 1977, B.C. Tel and Shaw have disagreed as to Shaw's access to and installation of its cables in and on the support structure.

Initially, B.C. Tel proposed that its forces do all cable television installation on and in its support structure in the tariff permitting cable licensees access to its support structure. That was among the matters considered by the CRTC in its decision Telecom Decision CRTC 78-6, issued July 28, 1978, after a hearing ensuing on public notice. It held [at pages 26-27]:

The Commission does not consider that the [B.C. Tel] has justified its requirement that it alone be permitted to instal cable facilities. In the Commission's view, the option of permitting cable licensees to instal their own cable facilities through Company approved contractors should be allowed under reasonable terms and conditions. … [B.C. Tel] argued that Article XXI of its collective agreement with the Telecommunications Workers Union precluded it from contracting this work out, but the clause in question does not appear to prohibit the Company [B.C. Tel] from permitting third parties from installing their own facilities at their own expense. Moreover, the Commission is concerned that an exclusive restriction of this kind may constitute an unjust preference under section 321(2) [340(2)] of the Railway Act, although in the absence of argument on the point, the Commission does not make an explicit finding at this time.

The upshot was that the matter was left to be settled by the licensees and B.C. Tel with the proviso that the CRTC would rule if it was not resolved.

On March 26, 1980, the CRTC issued Telecom Order: CRTC 80-147 approving B.C. Tel's proposed C.A.T.V. Support Structure Agreement, hereinafter “SSA”, which provided:

7. The Company agrees that the Licensee shall have the option either to perform, or to employ an outside contractor to perform, cable television construction work in or on support structures designated for company telecommunications services provided that:

…

(b) The Licensee agrees to ensure that the procedures for cable plant construction by the Licensee or its outside contractor do not include the intentional dislocation of Company property.

TWU commenced an arbitration as a result of work done by a cable licensee pursuant to that agreement. B.C. Tel took the position that it had fought and lost the battle before the CRTC with Telecom Decision CRTC 78-6 and that, in consequence, the arbitration board was without jurisdiction to deal with the issue. When the board rejected that argument, B.C. Tel withdrew. The board then invited cable licensees to make representations. That invitation was declined and, in the result, with only TWU appearing on the merits, by an award dated January 25, 1983, the “Williams Award”, it was concluded that the cable licensee:

had installed its coaxial cable in such a manner that it “had to do with the maintenance, repair and construction of the B.C. Tel plant”. The installation, executed with the approval of the B.C. Telephone Company, did have the effect of altering the plant and to that extent contravened the Collective Agreement.

B.C. Tel responded to the Williams Award by refusing to comply with article 7 of the SSA. The Canadian Cable Television Association, hereinafter “CCTA”, an association representing the licensees, complained to the CRTC. TWU intervened, arguing that the CRTC had no jurisdiction to order B.C. Tel to contravene its collective agreement. In disposing of the complaint, the CRTC ruled, on July 28, 1987, that:

From the record of this proceeding, it is clear that B.C. Tel is not currently permitting cable operators or their contractors to install their own coaxial cable on B.C. Tel support structures. The Commission is of the view that this position is contrary to Decisions 78-6 and 79-22 and the CATV Support Structure Agreement approved pursuant to Telecom Order 80-147 according to which such installation is permitted under reasonable terms and conditions.

It appears from the record that this position is not based upon the arbitration board's interpretation of the collective agreement but upon B.C. Tel's acceptance of the TWU's view that the spinning work performed by the cable licensees should instead be performed by B.C. Tel employees. The board did not express this opinion. Instead, it was of the view that the obligations under the collective agreement could be met using a scheme whereby B.C. Tel employees were present during the cable spinning for the purpose of handling the B.C. Tel equipment.

This approach parallels that of the Commission in Decision 79-22 where the C.R.T.C. noted that B.C. Tel, not cable, employees should dislocate B.C. Tel property.

In the absence of an arbitration board ruling that the collective agreement would not permit the work contemplated in those Decisions, there seems to be no reason to alter the status quo. The Commission therefore orders B.C. Tel to permit cable licensees to do the spinning work required to install their coaxial cable on B.C. Tel support structures in accordance with the terms of the agreement.[5]

After receipt of that Order, B.C. Tel did permit cable licensees to install their coaxial cable on and in its support structures. That led TWU to file another grievance alleging that B.C. Tel had violated the above-recited clause of the collective agreement by permitting the cable licensees to (1) overspin telephone aerial cable and (2) install underground TV cable in, on or through the conduit system.

An arbitration board was constituted. B.C. Tel took the position that it had not violated the collective agreement. Representatives of Shaw, the CCTA and the International Brotherhood of Electrical Workers, Local 213 attended at the commencement of the hearing and, on consent, were allowed to file a submission. They did not seek standing nor did they accept B.C. Tel's invitation to remain and question the witnesses. Their position was described as warning the board “against professing to dispose of the rights of non-parties to the arbitration.” The board reviewed the foregoing CRTC decisions and orders and the Williams Award, concluding:

It appears that the C.R.T.C.'s policy in this area is influenced by its perception of whether or not the assignment of the work contemplated in those decisions to persons other than members of the T.W.U. bargaining unit amounts to a breach of the collective agreement between B.C. Tel and the T.W.U.

It is not for us to comment on whether that policy is properly affected or influenced by such a consideration, but we are certainly obliged to rule on whether or not a violation of the collective agreement has occurred and we will proceed to do so.

The arbitration board received evidence as to what the operations of overspinning B.C. Tel cable and placement of coaxial cable in the underground support structure entailed. As to the first, it held,

This board, after careful deliberation, concludes that overspinning of T.V. cable to B.C. Tel messengers and cable does fall within Article 3, Section (1) of the collective agreement. The result of the overspinning is a changed assembly of communications cables. The B.C. Tel support structure and cable, after the overspinning, has a new spinning wire around it and additional cable T.V. cable clamped against it. In addition, in order to achieve this, existing B.C. Tel plant must be “dislocated” albeit temporarily.

We find that overspinning physically and permanently modifies an assembly of B.C. Tel messengers, cable, and clamps. There is more than just a close spatial relationship between B.C. Tel and cable T.V. equipment. After the overspinning they are bound together by new lashing wires and clamps and thus become an altered assembly of communications cables, sharing a common fate in terms of possible damage by wind or trauma and in terms of the maintenance or repair which may follow such damage.

As to the second, it concluded,

Apart from the operational impact of the presence or installation of T.V. cable there remains the central question of whether or not the placement of T.V. cable inside one-inch, two-inch or three-inch conduit amounts to an alteration of telephone plant.

The board is of the view that it does amount to an alteration of telephone plant. Conduit with no cable inside it is telephone plant. Once one cable is placed inside one-inch, two-inch or three-inch conduit, there is an alteration to the telephone plant such that there is now an assembly consisting of conduit and one cable. This assembly must be treated differently by T.W.U. forces when placing a second cable than it would be treated if the assembly consisted of conduit without any cable in it at all. Similarly, one-inch, two-inch or three-inch conduit with two cables inside it is different than conduit with one cable inside it.…

In the case of such conduit, an alteration to telephone company plant occurs when cable is inserted in it, not existentially, but in practical and operational terms. Future maintenance or repair will be affected by the presence of T.V. cable inside that conduit.

In the result, by a decision dated July 19, 1991, the “Glass Award”, the board found that when B.C. Tel permitted (1) “overspinning of cable T.V. coaxial cable to B.C. Tel messengers and cables” and (2) underground installation in the following respects:

1. The puncturing or drilling of holes in the sides of splice boxes or tubs.

2. The bolting of any assemblies to the side of splice boxes or tubs.

3. The placement of T.V. cable inside conduit owned by B.C. Tel.

by others than members of the TWU bargaining unit, it had breached the collective agreement. The decision as to underground installation is limited to the 1”, 2” and 3” conduit of which the board had evidence.

During 1989 and 1990, B.C. Tel and the cable licensees had attempted with some success to renegotiate the terms of the SSA. On October 8, 1991, B.C. Tel submitted a revised agreement for approval by the CRTC advising, inter alia, as to outstanding issues, that:

[The Glass Award] makes it impossible for the Company to allow CATV companies to place cables on the support structure.

The CCTA put the licensees' position on the issue.

This issue is of special concern to cable operators. If allowed to stand, B.C. Tel's proposals, in reaction to the TWU ruling resulting from a contrived arbitration, would seriously inhibit a cable operator's ability to meet customer expectations with regard to service quality, price, and availability. Through monopolistic actions with respect to the placement of cable and all other line hardware and facilities, and through usurious pricing policies, B.C. Tel would essentially control the effectiveness and efficiency of cable systems operating within their territory.[6]

On November 27, 1991, Shaw applied to the CRTC pursuant to section 49 of the NTPPA for a decision requiring B.C. Tel to permit it:

… or its approved contractor to install its own cable on or in B.C. Tel support structures in accordance with Clause 7 of the [SSA] between B.C. Tel and Shaw approved by the Commission pursuant to Telecom Order 80-147 and with previous decisions of the Commission.

Telecom Letter Decision CRTC 92-4, the decision in issue, responded to Shaw's application and, in part, to B.C. Tel's application for approval of the new SSA. It disposed of the issue of access to support structures as a preliminary matter before making a final determination on the new agreement in the following terms [at page 2]:

Pursuant to sections 49(2) and 50 of the [NTPPA] and section 335(2) of the Railway Act, the Commission has the duty to approve the tolls of telecommunication service offerings, including related terms and conditions. As stated in [Decision 78-6]

… all the terms which describe the nature of the service offered or affect its value must be contained in the tariff, whether by reference or otherwise. While it is not necessary that the complete text of the contract be set out in the tariff, the terms of the agreement must be approved as to form by the Commission.

Consistent with the above, the Commission's authority over Support Structure Agreements is not limited to its jurisdiction to approve limitations of liability, pursuant to section 341 of the Railway Act, but extends to the terms of the service. Accordingly, the Commission's consideration of the proposed SSA must include consideration of those proposed amendments intended to reflect the [Glass] award.

…

Under its enabling legislation, the Commission is charged with the duty of ensuring that rates are just and reasonable, that they are not unjustly discriminatory and do not confer an undue preference. In accordance with this mandate, the Commission has consistently held that CATV licensees are entitled to access B.C. Tel's support structures, subject to certain terms and conditions.

In the proceeding leading to decision 78-6, the Commission directed B.C. Tel and cable licensees to “negotiate an appropriate form of agreement which meets their mutual concerns”. The Commission set out five basic principles to assist the parties in their negotiations. One of these principles was that cable licensees must have the option, on reasonable terms and conditions, of installing their own cable facilities through company approved contractors.

The decision goes on to indicate that the inclusion of paragraph 7(b) in the SSA had, in 1979, been considered by it to be an appropriate response to B.C. Tel's concerns and to recount the events and its orders that ensued on the Williams Award. (Conspicuously, while Telecom Letter Decision CRTC 92-4 does refer to the ruling of July 28, 1987, it does not refer to the reason given for not then altering the status quo, namely the absence of an arbitration board ruling that the collective agreement would not permit the work contemplated by its earlier decisions.) As to the point in issue, Telecom Letter Decision CRTC 92-4 concludes [at page 3]:

The Commission has thus determined, pursuant to its statutory mandate, that B.C. Tel must provide cable licensees with access to its support structures, and, in Order 80-147, defined the circumstances in which cable licensees are entitled to such access. The Commission maintains this position, and further considers that any amendments to the existing SSA should reflect the Commission's view on this matter. The Commission therefore directs B.C. Tel to comply with its obligations to permit Shaw and any other cable licensees to install their own cable on B.C. Tel support structures.

Analysis

Both the decision of the arbitration board and that of the CRTC may be filed in this Court's Registry thereby becoming judgments of the Court subject to enforcement through contempt of court proceedings. The CRTC has plainly ordered B.C. Tel to do again what has been determined was in violation of its collective agreement. The decisions cannot stand together.

While there is a good deal of jurisprudence on the question of the deference owed by the courts to the decisions of administrative tribunals which they are invited to review, we were not advised of, and I have been unable to find, any Canadian or other persuasive authority on the question of the deference, if any, owed by one tribunal to the decisions of another. We have been pointed to decisions of United States courts involving two tribunals vested with jurisdiction to decide an identical question.[7] They have held [at page 651] that:

Where the powers of two bodies are coordinate or equal, the tribunal first acquiring jurisdiction has a right to retain it until it has completely disposed of all matters and issues so presented to it.

That is not the present case.

Nor, in my opinion, is the issue one of deference in the sense of the deference required of courts in reviewing the decisions of administrative tribunals. Neither the CRTC nor the arbitration board were, in any way, empowered to vary or interfere with the decision of the other. The respective jurisdictions of the CRTC and an arbitration board constituted under section 57 of the Canada Labour Code do not overlap. They may incidentally, as here, lead to irreconcilable results.

The result is patently unreasonable and, in my view, the Supreme Court of Canada has suggested the appropriate approach to its resolution. In U.E.S., Local 298 v. Bibeault,[8] the Court was considering the concept of patently unreasonable error. It said:

At first sight it may appear that the functional analysis applied to cases of patently unreasonable error is not suitable for cases in which an error is alleged in respect of a legislative provision limiting a tribunal's jurisdiction. The difference between these two types of error is clear: only a patently unreasonable error results in an excess of jurisdiction when the question at issue is within the tribunal's jurisdiction, whereas in the case of a legislative provision limiting the tribunal's jurisdiction, a simple error will result in a loss of jurisdiction. It is nevertheless true that the first step in the analysis necessary in the concept of a “patently unreasonable” error involves determining the jurisdiction of the administrative tribunal. At this stage, the Court examines not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal. At this initial stage a pragmatic or functional analysis is just as suited to a case in which an error is alleged in the interpretation of a provision limiting the administrative tribunal's jurisdiction: in a case where a patently unreasonable error is alleged on a question within the jurisdiction of the tribunal, as in a case where simple error is alleged regarding a provision limiting that jurisdiction, the first step involves determining the tribunal's jurisdiction. [Emphasis added.]

A patently unreasonable result standing alone may not necessarily be characterized as entailing an error going to jurisdiction. However, where the patently unreasonable result flows from conflicting decisions of different tribunals, Bibeault suggests a way it may be resolved. A comparison of the competing constituting enactments, their purposes and the purposes of the tribunals in the legislative schemes, the respective areas of expertise and the nature of the problem that has given rise to the unreasonable result can, I believe, be the basis for a conclusion that one or the other has erred in law or jurisdiction by failing to take account of the other's decision.

The CRTC

It is, in my opinion, beyond doubt that the CRTC has the jurisdiction and mandate to regulate all relevant aspects of B.C. Tel's business. I see no point in reciting the many statutory provisions, some interdependent, some seemingly redundant, that lead to that conclusion. The primary relevant source of jurisdiction is found in the Railway Act.

335. (1) Notwithstanding anything in any other Act … all telegraph and telephone tolls to be charged by a company are subject to the approval of the Commission and may be revised by the Commission from time to time. [As am. by S.C. 1991, c. 11, s. 86.]

…

339. (1) Without limiting the generality of this subsection by anything contained in sections 335 to 338 or section 340, the jurisdiction and powers of the Commission … extend and apply to all companies as defined in section 334, and to all telegraph and telephone systems, lines and business of those companies within the legislative authority of Parliament. [As am. by S.C. 1991, c. 37, s. 2.]

Sections 49 and 50 of the NTPPA reiterate that conferral of jurisdiction.

In Transvision (Magog) Inc. v. Bell Canada,[9] the Canadian Transport Commission, which then exercised the regulatory powers of the Railway Act [R.S.C. 1970, c. R-2] in respect of telecommunications, decided that support structures were assets of a telephone company's public utility function required to be made available to other users on a regulated basis. That underlying proposition has not, so far as I am aware, been challenged since.

Likewise, the duty and jurisdiction to regulate tolls so as to preclude undue preference is clear:

340. (1) All tolls shall be just and reasonable and shall always, under substantially similar circumstances and conditions with respect to all traffic of the same description carried over the same route, be charged equally to all persons at the same rate.

(2) A company shall not, in respect of tolls or any services or facilities provided by the company as a telegraph or telephone company,

…

(b) make or give any undue or unreasonable preference or advantage to or in favour of any particular person or company or any particular description of traffic, in any respect whatever …

This Court has held that the “person or company” to whom undue preference is forbidden by paragraph 340(2)(b) may be the “company” itself.[10] This Court has also held that the legislation has bestowed:

a plenitude of powers on the CRTC to prevent unjust discrimination or undue or unreasonable preference or advantage by any means it sees fit.[11]

The CRTC has identified, since at least 1978, the requirement that cable licensees and their contractors be given access to the support structures to install coaxial cable as a means of avoiding B.C. Tel being accorded an undue advantage or preference.

By subsection 12(2) [as am. by S.C. 1991, c. 11, s. 80] of the Canadian Radio-television and Telecommunications Commission Act,[12] the powers of the CRTC vested in it by the Railway Act and the NTPPA are required to be exercised by its full-time members. Thus, their expertise in determining reasonable tolls and the implicit avoidance of undue preference is to be accepted as a matter of fact as well as law.

The extent to which Parliament has made CRTC decisions subject to judicial review is not irrelevant. Subsection 68(1) of the NTPPA provides for an appeal, with leave, to this Court, on a question of law or a question of jurisdiction.

The Arbitration Board

That an arbitration board constituted in accordance with a collective agreement pursuant to the Canada Labour Code is a statutory tribunal is the precise determination of Roberval Express Ltée v. Transport Drivers, Warehousemen and General Workers Union, Local 106, et al.[13] Such an arbitration board is inherently an ad hoc tribunal. The expertise of its members in the special area of its responsibilities is by no means as evident, as a matter of fact, as is the expertise of full-time members of the CRTC in their area.

That said, the Preamble to Part I of the Code states in part:

WHEREAS there is a long tradition in Canada of labour legislation and policy designed for the promotion of the common well-being through the encouragement of free collective bargaining and the constructive settlement of disputes;

…

AND WHEREAS the Parliament of Canada desires to continue and extend its support to labour and management in their cooperative efforts to develop good relations and constructive collective bargaining practices, and deems the development of good industrial relations to be in the best interests of Canada in ensuring a just share of the fruits of progress to all;

To that among other ends Parliament has provided:

57. (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.

…

58. (1) Every order or decision of an arbitrator or an arbitration board is final and shall not be questioned or reviewed in any court.

The other subsections of section 58 insulate the proceedings of an arbitrator or board from judicial interference and declares them not to be “a federal board, commission or other tribunal” for purposes of the Federal Court Act.[14]

While, as I have indicated, I do not regard the conflict between the decisions of the CRTC and the arbitration board as calling for deference by one to the decision of the other in the sense of judicial deference to a decision subject of judicial review, the rationale for that deference is instructive in terms of understanding the importance of the arbitrator or board in the scheme of the Code. There is much authority on the matter which, in my view, is fairly encapsulated in the following:[15]

What is left is an attitude of judicial deference to the arbitration process. … It is based on the idea that if the courts are available to the parties as an alternative forum, violence is done to a comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting. Arbitration, when adopted by the parties as was done here in the collective agreement, is an integral part of that scheme, and is clearly the forum preferred by the legislature for resolution of disputes arising under collective agreements. From the foregoing authorities, it might be said, therefore, that the law has so evolved that it is appropriate to hold that the grievance and arbitration procedures provided for by the Act and embodied by legislative prescription in the terms of a collective agreement provide the exclusive recourse open to parties to the collective agreement for its enforcement.

Conclusion

I see nothing in the relative importance of the mandates of the CRTC and the arbitration board or in the expertise of their members that would lead to the conclusion that the decision of one is paramount as it bears incidentally on the decision of the other. As I see it, taking the pragmatic approach, the answer to the dilemma lies in the nature of the problem. The determination whether or not particular work entails “maintenance, repair, alteration or construction of the telephone plant” is, in my opinion, primarily one of labour relations rather than the regulation of telephone tolls.

Without regard to the facts that no error on the part of the arbitration board is alleged and that, if it were, it could not be reviewed, the plain fact is that the arbitration board in no way purported to interfere with the CRTC's determination in the exercise of its jurisdiction to regulate tolls that, to avoid an undue advantage to B.C. Tel, the licensees had to be given access for installation purposes to the support structures. The arbitration board simply interpreted the collective agreement. It is the collective agreement that gives rise to the problem. The question thus becomes whether the CRTC erred in law or exceeded its jurisdiction by ordering B.C. Tel to violate a requirement of the collective agreement by doing again that which the arbitration board had conclusively determined had violated it.

Counsel for Shaw submitted that, since the CRTC first enunciated its policy, B.C. Tel has had several opportunities to renegotiate the relevant provision of the collective agreement to accommodate the policy. That is very likely true although the record does not disclose the number, if any, of new collective agreements entered into since 1978. What it does disclose is that the same provision has been in effect throughout the entire period. We are not dealing with a commitment that might be said to have been undertaken by B.C. Tel to avoid compliance with the policy. The assignment of the exclusive right to perform particular work to members of the bargaining unit is a commonplace of collective bargaining agreements. I suggest that its omission would be extraordinary. While the CRTC has been given “a plenitude of powers” to prevent undue preference, it has not been given the power to require that, to that end, a company subject to its regulatory mandate not comply with collective bargaining obligations bona fide undertaken. I would add that I do not think that the CRTC can be faulted for insisting that the order implementing its chosen means of avoiding undue preference prevail until a term of the collective agreement that required construction had been definitively construed by arbitration.

In my opinion, the CRTC exceeded its jurisdiction by requiring that B.C. Tel again violate the terms of its collective agreement with TWU in the respects which the Glass Award held had already violated it. I would allow the appeal and, pursuant to subparagraph 52(c)(ii) of the Federal Court Act, I would set aside the unqualified direction requiring “B.C. Tel to comply with its obligations to permit Shaw and any other cable licensees to instal their own cable on B.C. Tel support structures” and refer the matter back to the CRTC for reconsideration and decision on the basis that it has not the jurisdiction to order B.C. Tel to violate the terms of its collective agreement with TWU.

Heald J.A.: I agree.

McDonald J.A.: I agree.

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