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T-4135-77
Bell Canada (Plaintiff)
v.
Attorney General of Canada, Luc -André Couture, Robert Simpson MacLellan and Frank Roseman (Defendants)
Trial Division, Addy J.—Ottawa, February 9 and 15, 1978.
Practice — Application to strike statement of claim, and alternatively, to strike one prayer for relief — Action for declaration that Restrictive Trade Practices Commission exceeded its jurisdiction, and for order that Attorney General be instructed to order Commission to refrain from hearing evidence — Attorney General claims there is no reasonable cause of action and that the Federal Court is without jurisdic tion under s. 28 of Federal Court Act — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28 — Combines Investigation Act, R.S.C. 1970, c. C-23, s. 47.
The plaintiff (respondent in the present application) institut ed an action in the Trial Division against the Attorney General, and other defendants as members of the Restrictive Trade Practices Commission. The statement of claim seeks a declara tion that the Commission had exceeded its jurisdiction by inquiring into certain of its practices and policies and prays for an order requiring the Attorney General to instruct the Com mission to refrain from hearing evidence or accepting submis sions related to those policies and practices. The defendant, the Attorney General, requests that the statement of claim be struck on the grounds that it discloses no reasonable cause of action and that the Trial Division has no jurisdiction under section 28 of the Federal Court Act. Alternatively, defendant requests that the plaintiff's second prayer be struck for the same reasons.
Held, the defendant's first request is denied, but his alterna tive request is allowed. Although the decision in the case at bar to admit evidence on certain aspects of the plaintiff's operations might possibly involve an excess of jurisdiction on the part of the Commission, such a decision is not reviewable under section 28. Section 18(b) of the Federal Court Act, when read with section 18(a), however, grants statutory jurisdiction to the Court to entertain a claim for declaratory judgment against the Attorney General. There is no fundamental jurisdictional bar against plaintiff proceeding against either the Commission or the Attorney General by way of ordinary action for a declara tion. In the case of a statutory body charged with making an inquiry on a certain subject, it might very well be that in hearing evidence that pertains to matters so completely unrelat ed to the objects for which it was constituted and which is not probative of any of the issues which it is charged to determine, it might exceed its jurisdiction and render itself subject to intervention by a Court. It is possible that plaintiff could obtain, after the evidence was in, a declaration that the Com-
mission had somehow exceeded its jurisdiction by inquiring into certain general practices and policies of plaintiff. For that reason, the statement of claim and its first prayer will not be struck out. The Attorney General would have no au thority whatsoever to take any measure to prevent the Commis sion from hearing evidence or accepting submissions of any kind. He has no statutory control over the Commission in the performance of its investigatory duties and it would be com pletely illegal as well as improper for him to take any such action.
APPLICATION. COUNSEL:
J. W. Brown, Q.C., and C. S. Goldman for
plaintiff.
G. Henderson, Q.C., and G. Kaiser for
defendants.
Paul Martineau, Q.C., for third party.
SOLICITORS:
Blake, Cassels & Graydon, Toronto, for plaintiff.
Gowling & Henderson, Ottawa, for defend ants.
Martineau, Leclerc, St -Amand & Gravel, Hull, for third party.
The following are the reasons for order ren dered in English by
ADDY J.: The plaintiff, the respondent in the present application, instituted an action in the Trial Division of this Court against the Attorney General and also against the other defendants, the latter as members of the Restrictive Trade Prac tices Commission (hereinafter referred to as the "Commission"). The statement of claim alleges that the Commission is charged solely with investi gating any monopolistic situation which might exist regarding vertical integration of the telecom munication equipment market in Canada.
In paragraph 13(a) of its statement of claim, the respondent asks for a declaration that the Com mission exceeds its jurisdiction by inquiring into the practices and policies of the said respondent and other regulated telephone companies with respect to intercommunication networks and into the reasons or desirability of such practices or policies. In paragraph 13(b) it prays for an order
requiring the Attorney General to instruct the Commission to refrain from hearing evidence or accepting submissions relating to the above-men tioned policies and practices.
The defendant, the Attorney General, has launched the present application and requests that the statement of claim be struck out on the grounds that it discloses no reasonable cause of action and that the Trial Division of this Court has no jurisdiction by virtue of section 28 of the Fed eral Court Act. The defendant alternatively requests that paragraph 13(b) of the statement of claim be struck out for the same reasons.
It was common ground between counsel for the parties that the Commission in exercising its func tions, pursuant to section 47 of the Combines Investigation Act' is acting as a purely administra tive board or commission, is merely discharging a reporting function and is not exercising a judicial or quasi-judicial function. I am of the same view. (Refer O'Connor v. Waldron 2 .)
Where the basic function of a board or commis sion is purely administrative and its final decision need not be exercised in a judicial or quasi-judicial manner, there is normally no obligation on it that any of its interim procedural decisions or decisions as to what matters will be investigated be exercised in a judicial or quasi-judicial manner. Where a person alleges that harm might result from any such interim decision, including a decision as to jurisdiction, the remedy is to sue for an injunction or other relief and not to appeal the decision under section 28 of the Federal Court Act as argued by counsel for the Attorney General. Although the decision in the case at bar to admit evidence on certain aspects of the plaintiff's operations might possibly involve an excess of jurisdiction on the part of the Commission, such a decision is not the type of decision reviewable under section 28. I am not of the view that the statement of The Honour able Chief Justice of this Court, when referring to the type of decisions reviewable under section 28 in the case of Attorney General of Canada v.
' R.S.C. 1970, c. C-23. 2 [1935] A.C. 76.
Cylien 3 and in the case of Danmor Shoe Company Ltd. v. Crosley Shoe Corp. Ltd. 4 to the effect that "A decision of something that the statute expressly gives such a tribunal `jurisdiction or powers' to decide is clearly such a `decision' " (i.e., a decision reviewable under section 28) applies to a decision to hear evidence. The statement should not be taken to mean that because a statute gives a commission a right to decide what evidence it shall hear in order to fulfill its investigative function such a power ipso facto renders such a decision reviewable under section 28. Most statutes setting up investigative boards and commissions grant powers to hear and consider evidence. It is there fore proper to proceed by way of action against the Commission in the present case.
I also find that section 18(b) of the Federal Court Act, when read with section 18(a), does grant statutory jurisdiction to the Federal Court of Canada to entertain a claim for a declaratory judgment against the Attorney General. I do not agree as argued by counsel for the applicant that the words "including any proceeding brought against the Attorney General of Canada in subsec tion (b)" must be taken to mean relief of another nature since, in the absence of specific statutory authority, no mandatory or executory order can be issued against the Crown or any Minister of the Crown when acting as such and, in effect, all judgments against the Attorney General either as a Minister of the Crown or as representing the Crown must necessarily be declaratory or non- mandatory in nature.
In the case of The Canadian Fishing Company Limited v. Smiths the members of the Restrictive Trade Practices Commission were sued as defend ants in an ordinary action and the majority judg ment of the Supreme Court of Canada held that the plaintiff in that action was entitled to a decla-
3 [1973] F.C. 1166.
4 [1974] 1 F.C. 22.
5 [1962] S.C.R. 294.
ration against the Commission. (Refer judgment of Locke J. at pages 308-309 of the above report which judgment was concurred in by the majority of the Court.)
As to a declaratory action taken in the Trial Division under section 18 of the Federal Court Act being the proper procedure when attacking a deci sion of an investigative board see Lingley v. Hickman 6 . In the case of Landreville v. The Queen', although the jurisdiction of the Court to grant declaratory relief is not challenged, the Court declared that it was common ground that it had jurisdiction and the Court obviously felt that it had for it proceeded to grant the declaratory judgment and consent does not create jurisdiction. In addition, in Canadian Radio-Television Com mission v. Teleprompter Cable Communications Corp. 8 the Court of Appeal held at page 1269 that the Trial Division of this Court did have jurisdic tion to make a declaratory order.
There is, therefore, no fundamental jurisdiction al bar against the plaintiff proceeding against either the Commission or the Attorney General by way of ordinary action for a declaration.
As to the relief claimed, it might appear at first sight from the statement of claim that the question raised is merely one of admissibility of evidence. If such were the case, then obviously a court would not interfere. However, as argued by counsel for the respondent, in the case of a statutory body charged with making an inquiry on a certain sub ject, it might very well be that in hearing evidence which pertains to matters so completely unrelated to the objects for which it is constituted and which is not probative of any of the issues which it is charged to determine, it might exceed its jurisdic tion and render itself subject to intervention by a court. Such action or intervention might be for a declaration as well as for an injunction.
I entertain some very serious doubts that the plaintiff would succeed in obtaining the relief granted in paragraph 13(a) of the statement of
6 [1972] F.C. 171. ' [1973] F.C. 1223. 8 [1972] F.C. 1265.
claim. However, on the basis of the facts pleaded and upon considering the wording of section 47 of the Combines Investigation Act, I am not satisfied that it would not be possible for the plaintiff to obtain, after the evidence was in, a declaration to the effect that the Commission had somehow exceeded its jurisdiction by inquiring into certain general practices and policies of the plaintiff and other companies or into the desirability of such practices. For that reason alone, neither the state ment of claim nor paragraph 13(a) thereof shall be struck out at this preliminary stage. The principle that where there exists a triable issue an applica tion of this sort must fail, is too well established to warrant authority being cited in support thereof.
I see no merit in the argument that the existence of an unresolved action might prevent the Com mission from carrying out its duties. A mere alle gation that a commission is acting illegally even where such an allegation is made in an action, is no reason for a commission to refrain from per forming its statutory duties. In any event, that possibility is certainly not a valid ground for strik ing out a statement of claim.
As to paragraph 13(b) of the statement of claim the Restrictive Trade Practices Commission, in exercising its jurisdiction under section 47 of the Combines Investigation Act is performing a statu tory duty imposed upon it by Parliament. It has apparently been properly seized of the inquiry and, in my view, the Attorney General of Canada would have no authority whatsoever to take any measure to prevent the Restrictive Trade Practices Commission from hearing evidence or accepting submissions of any kind. He has no statutory control over the Commission in the performance of its investigatory duties and it would be completely illegal as well as improper for him to take any such action. Paragraph 13(b) will therefore be struck out.
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