A-178-78
Trans Mountain Pipe Line Company Ltd.
(Appellant)
v.
National Energy Board, Dome Petroleum Lim
ited, Gulf Oil Canada Limited, Interprovincial
Pipe Line Limited, Shell Canada Limited, Trans-
Canada Pipelines Limited, Trans-Northern Pipe
Line Company, Air Canada, Canadian Pacific Air
Lines Limited, Japan Airlines Co. Ltd., Pacific
Western Airlines Ltd., Qantas Airways Ltd.,
United Airlines Inc., Western Airlines Inc., Min
ister of Energy for Ontario, Procureur général du
Québec, and Attorney General for British
Columbia (Respondents)
Court of Appeal, Pratte and Ryan JJ. and Kerr
D.J.—Vancouver, February 19, 20, 21 and 23,
1979.
Crown — Pipelines — Application for order to amend tolls
charged by appellant on ground that tolls were insufficient
compensation for services rendered by appellant — Report
made to Board by Presiding Member after evidence taken and
submissions made — Report subsequently adopted by Board
as own decision, without affording appellant further opportu
nity to be heard — Appeal from Board's decision — Whether
or not Board's failure to give appellant opportunity to be
heard before adopting report a denial of natural justice —
National Energy Board Act, R.S.C. 1970, c. N-6, ss. 14(1), 18,
50.
APPEAL.
COUNSEL:
D. M. M. Goldie, Q.C. for appellant.
P. G. Griffin for respondent National Energy
Board.
Colin L. Campbell, Q.C. for respondent
TransCanada Pipelines Limited.
L. G. Nathanson and S. R. Schachter for
respondent Attorney General for British
Columbia.
No one appearing for respondents Dome
Petroleum Limited, Gulf Oil Canada Limited,
Interprovincial Pipe Line Limited, Shell
Canada Limited, Trans-Northern Pipe Line
Company, Air Canada, Canadian Pacific Air
Lines Limited, Japan Airlines Co. Ltd., Pacif
ic Western Airlines Ltd., Qantas Airways
Ltd., Western Airlines Inc., Minister of
Energy for Ontario and Procureur général du
Québec.
SOLICITORS:
Russell & DuMoulin, Vancouver, for appel
lant.
National Energy Board, Ottawa, for respond
ent National Energy Board.
Ladner Downs, Vancouver, for respondent
Dome Petroleum Limited.
McCarthy & McCarthy, Toronto, for
respondent TransCanada Pipelines Limited.
Davis & Company, Vancouver, for respondent
Attorney General for British Columbia.
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: This is an appeal pursuant to section
18(1) of the National Energy Board Act' from an
order of the Board prescribing the tolls which the
appellant could charge from February 1, 1978.
The appellant owns and operates an oil pipeline
from a point near Edmonton, Alberta, to Burnaby,
British Columbia, with a short spur running to
Sumas on the International Boundary. It is subject
to the jurisdiction of the National Energy Board
which has the power to regulate the tolls that it
may charge.
On March 14, 1977, the appellant applied to the
Board for an order, under section 50 of the Na
tional Energy Board Act, amending the tolls
charged by the appellant on the ground that they
were unjust and unreasonable in that they were
insufficient to yield a fair and reasonable compen
sation to the appellant for the services rendered by
it.
Pursuant to subsection 14(1) of the Act, the
Board authorized one of its members (hereinafter
called the "Presiding Member") to take evidence
and hear submissions respecting the appellant's
application for the purpose of making a report to
the Board. The Presiding Member held public
hearings at which the appellant and other interest-
R.S.C. 1970, c. N-6, s. 18.
ed parties had an opportunity to lead evidence,
cross examine witnesses and present argument; he
subsequently made a report to the Board of his
findings and recommendations. The Board, after
considering "the Presiding Member's report and
the evidence adduced at the said hearing" adopted
the report as its own decision. That is the order
against which this appeal is directed.
The appellant's first ground of attack relates to
the procedure followed by the Board pursuant to
subsection 14(1). That subsection reads as follows:
14. (1) The Board or the Chairman may authorize any one
of the members to report to the Board upon any question or
matter arising in connection with the business of the Board, and
the person so authorized has all the powers of the Board for the
purpose of taking evidence or acquiring the necessary informa
tion for the purpose of such report, and upon such a report
being made to the Board, it may be adopted as the order of the
Board or otherwise dealt with as the Board considers advisable.
The sole complaint of the appellant in this
respect, if I understood counsel correctly, arises
from the Board's failure, before making a decision
on the Presiding Member's report, to give the
appellant an opportunity to be heard on the con
tents of that report. It is the appellant's submission
that natural justice required that it be given such
an opportunity. I do not agree. The appellant,
while not entitled to any particular form of hear
ing, was entitled to be heard on its application. It
cannot, however, be contested that it was so heard
since the record shows that both the evidence
adduced and the submissions made by the appel
lant before the Presiding Member were com
municated to the Board. Natural justice did not
require, in my view, that the appellant be given the
further right of being heard on the Presiding
Member's report. The making of that report was
part of the Board's decision process and I do not
think that the appellant had the right to interpose
itself in that process. The rights of an applicant, it
seems to me, are the same whether or not the
decision is made pursuant to subsection 14(1): in
both cases the applicant is entitled to be heard on
its application. An applicant does not acquire a
right to an additional hearing when the Board
chooses to resort to the procedure of subsection
14(1).
The other grounds of appeal relate to the
method followed and the factors taken into con
sideration by the Board in determining the tolls
that the appellant could charge. It will not be
necessary for me to consider separately each one of
those grounds since, in my opinion, they must all
fail for the same reason: they do not involve any
question of law.
Under sections 50 and following of the Act, the
Board's duty was to determine the tolls which, in
the circumstances, it considered to be "just and
reasonable".
Whether or not tolls are just and reasonable is
clearly a question of opinion which, under the Act,
must be answered by the Board and not by the
Court. The meaning of the words "just and reason
able" in section 52 is obviously a question of law,
but that question is very easily resolved since those
words are not used in any special technical sense
and cannot be said to be obscure and need inter
pretation. What makes difficulty is the method to
be used by the Board and the factors to be con
sidered by it in assessing the justness and reason
ableness of tolls. The statute is silent on these
questions. In my view, they must be left to the
discretion of the Board which possesses in that
field an expertise that judges do not normally
have. If, as it has clearly done in this case, the
Board addresses its mind to the right question,
namely, the justness and reasonableness of the
tolls, and does not base its decision on clearly
irrelevant considerations, it does not commit an
error of law merely because it assesses the justness
and reasonableness of the tolls in a manner differ
ent from that which the Court would have
adopted.
For these reasons, I would dismiss the appeal.
* * *
RYAN J. concurred.
* * *
KERR D.J. concurred.
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.