T-4855-77
Consumers' Association of Canada (Plaintiff)
v.
Attorney General of Canada (Defendant)
Trial Division, Gibson J.—Ottawa, March 17 and
April 6, 1978.
Prerogative writs — Declaratory relief — Governor in
Council reversing CRTC's decision by substituting his own
decision, on the premise of exercising the power to vary
Whether or not Governor in Council has power to order
judgment which he considers ought to have been given in the
original decision — National Transportation Act, R.S.C. 1970,
c. N-17, s. 64(1) — Order in Council, P.C. 1977-3152.
By Order in Council, the Governor in Council in exercising
the power conferred by section 64(1) of the National Trans
portation Act to vary a decision of the CRTC substituted his
decision for the original decision of the Commission on the
premise of exercising the power to vary. Plaintiff submits that
the power to vary does not include the power to substitute a
decision for that of the CRTC and so reverse the CRTC
decision. The issue is whether or not a declaration should issue
stating that the Governor in Council "does not have the power
to order the judgment which he considers ought to have been
given in the original decision of the Commission".
Held, the action is dismissed. Based upon the express words
of section 64(1) of the National Transportation Act, the dic
tionary definitions of the word "vary" which indicate the word
"vary" has a very wide connotation, the reasoning and concepts
in judicial decisions interpreting the meaning of the power to
"vary" in section 64(1), and the reasoning and concepts in the
judicial decisions interpreting how the statutory powers to
"vary" may be exercised in the other statutes referred to in the
cases cited, the Court holds that the Governor in Council in this
case in reversing the decision of the CRTC by substituting his
decision for that of the CRTC, thereby causing an entirely
different result to obtain, was lawfully exercising his power to
vary prescribed in section 64(1) of the National Transportation
Act.
CSP Foods Ltd. v. Canadian Transport Commission
[1979] 1 F.C. 3, considered. Re Davisville Investment Co.
Ltd. v. City of Toronto (1977) 15 O.R. (2d) 553, con
sidered. Inuit Tapirisat of Canada v. The Right Honour
able Jules Léger [1979] 1 F.C. 213, considered. Labour
Relations Board of the Province of British Columbia v.
Oliver Co-Operative Growers Exchange [1963] S.C.R. 7,
considered.
ACTION.
COUNSEL:
T. Gregory Kane for plaintiff.
G. W. Ainslie, Q.C. and E. A. Bowie for
defendant.
SOLICITORS:
Consumers' Association of Canada, Ottawa,
for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
GIBSON J.: This is an action for declaratory
relief.
The plaintiff the Consumers' Association of
Canada, is an incorporated association which in
the pleadings, alleges it "makes representations on
behalf of the consumer interest before governmen
tal bodies, including courts, legislatures and
administrative tribunals." The locus standi of the
plaintiff in this action was denied in the pleadings
by the Deputy Attorney General of Canada for the
defendant, the Attorney General of Canada, but
no submissions were made to the Court in respect
to this plea.
The issue is whether reversing a decision is a
lawful exercise of the power to vary a decision.
By Order in Council P.C. 1977-3152 dated
November 3, 1977, the Governor in Council in
exercising the power conferred by section 64(1) of
the National Transportation Act, R.S.C. 1970, c.
N-17, to vary a decision of the Canadian Radio-
television and Telecommunications Commission
(CRTC) substituted his decision for the original
decision of the Commission on the premise of
exercising the power to vary.
The submission is that the power to vary did not
include the power to substitute the decision of the
CRTC (which substitute decision in this case was
to reverse the CRTC decision) and that as a
consequence a declaration should issue in the
words of the prayer for relief in the statement of
claim, namely that the Governor in Council "does
not have the power to order the judgment which he
considers ought to have been given in the original
decision of the Commission".
This Order in Council reads as follows:
WHEREAS, on 24 August 1977, the Canadian Radio-televi
sion and Telecommunications Commission, following public
hearings, rendered Telecom Decision CRTC 77-10 in which it
did not approve the Telesat Canada Proposed Agreement,
made as of 31 December 1976, with the Trans-Canada Tele
phone System.
WHEREAS the Governor in Council has received petitions
under subsection 64(1) of the National Transportation Act and
has given due consideration to the petitions and views of
interested parties and to the views of the Canadian Radio-
television and Telecommunications Commission as expressed in
the said Decision;
WHEREAS the Governor in Council has concluded that the
public interest will be better served if the Telesat Canada
Proposed Agreement is approved;
WHEREAS the approval of the said Agreement will not, in the
opinion of the Governor in Council, affect the power of the
Canadian Radio-television and Telecommunications Commis
sion, under subsection 320(2) of the Railway Act, to approve or
not to approve rates charged by Telesat Canada or the power of
the Commission under subsection 320(7) of the Railway Act, to
order Telesat Canada to provide access to its facilities upon
such terms and conditions as the Commission deems just and
expedient;
WHEREAS the approval of the said Agreement will not, in the
opinion of the Governor in Council, affect the powers of the
Minister of Communications under the Radio Act with respect
to the operations of earth stations and associated terrestrial
radio relay facilities.
AND WHEREAS the Agreement provides that nothing therein
shall be binding which may override or conflict with any Act of
the Parliament of Canada or any province thereof:
THEREFORE, HIS EXCELLENCY THE GOVERNOR GENERAL
IN COUNCIL, pursuant to subsection 64(1) of the National
Transportation Act, of his own motion, hereby varies the
Telecom Decision CRTC 77-10 of the Canadian Radio-televi
sion and Telecommunications Commission, dated 24 August
1977, so as to provide for the approval of the Agreement
between Telesat Canada and the Trans-Canada Telephone
System, that is to say, that the Decision will now read as
follows:
"The Agreement between Telesat Canada and the Trans-
Canada Telephone System, made as of 31 December 1976, is
in the public interest and is hereby approved."
The nature of the statutory power given to the
Governor General in Council under section 64(1)
of the National Transportation Act and of the
somewhat analogous powers of others has been
discussed in the cases:
In CSP Foods Ltd. v. Canadian Transport
Commission', Urie J. at pages 9-10 said:
' [1979] 1 F.C. 3.
With respect, I do not view the exercise of his powers by the
Governor in Council pursuant to section 64(1) as being in the
nature of a judicial appeal. It provides a means whereby the
executive branch of government may exercise some degree of
control over [in this case] the Canadian Transport Commission
to ensure that the views of the government as to the public
interest in a given case, on the basis of facts established by this
tribunal, can be expressed by the executive and such views are
implemented by means of directions which it may see fit to give
the tribunal, through the Governor in Council. It is a superviso
ry role, as I see it, not an appellate role. The Governor in
Council does not concern himself with questions of law or
jurisdiction which is in the ambit of judicial responsibility. But
he has the power to do what the Courts cannot do which is to
substitute his views as to the public interest for that of the
Commission.
In Re Davisville Investment Co. Ltd. v. City of
Toronto 2 in relation to section 94 of The Ontario
Municipal Board Act and the power of the Lieu
tenant Governor in Council, the Court of Appeal
of Ontario, per Lacourciere J.A. said:
The order, delayed for valid reasons until June, 1975, was
approved by Her Honour the Lieutenant-Governor; it allowed
the petition of the Oriole Park Association and provided as
follows:
The Honourable John White, Member of the Executive
Council and Chairman, Cabinet Committee on Legislation,
after due consideration of the said Petition therefore recom
mends that pursuant to the provisions of Section 94 of The
Ontario Municipal Board Act, R.S.O. 1970, Chapter 323,
the aforementioned decision of the Ontario Municipal Board,
dated the 24th day of May 1972 be varied or rescinded and a
public hearing held pursuant to Section 35 of The Planning
Act, R.S.O. 1970, Chapter 349 for the purpose of enquiring
into the merits of the application by the Corporation of the
City of Toronto for approval of By-laws 152-68 and 253-68
and of hearing any objections to the application.
Section 94(1) of The Ontario Municipal Board Act reads as
follows:
94(1) Upon the petition of any party or person interested,
filed with the Clerk of the Executive Council within twenty-
eight days after the date of any order or decision of the
Board, the Lieutenant Governor in Council may,
(a) confirm, vary or rescind the whole or any part of such
order or decision; or
(b) require the Board to hold a new public hearing of the
whole or any part of the application to the Board upon
which such order or decision of the Board was made,
and the decision of the Board after the public hearing
ordered under clause b is not subject to petition under this
section.
The 1972 decision of the Ontario Municipal Board could be
challenged in two ways: (1) By an appeal following the judicial
2 (1977) 15 O.R. (2d) 553 at 555-556.
route of s. 95, on a question of law or jurisdiction, and subject
to leave being obtained leading to the Divisional Court, or (2)
by a petition, along the political route to the Lieutenant-Gover
nor in Council, pursuant to s. 94.
The respondent association, after some procedural hesitation,
eventually chose the second route. The Lieutenant-Governor in
Council, answerable to the Legislature, exercises a discretion
ary power of control over the Municipal Board, and is not
confined to the grounds stated in the petition or limited to the
record before the Board. The petition does not constitute a
judicial appeal or review. It merely provides a mechanism for a
control by the executive branch of Government applying its
perception of the public interest to the facts established before
the Board, plus the additional facts before the Council. The
Lieutenant-Governor in Council is not concerned with matters
of law and jurisdiction which are within the ambit of judicial
control. But it can do what Courts will not do, namely, it can
substitute its opinion on a matter of public conve
nience and general policy in the public interest. This is what
was done by the Order in Council: if it was done without any
error of law, or without defects of a jurisdictional nature, the
Divisional Court had no power to interfere and properly dis
missed the application before it.
Marceau J. in this Court in Inuit Tapirisat of
Canada v. The Right Honourable Jules Léger 3
said:
... the action seeks an alternative remedy, a declaratory order,
and the jurisdiction of the Court to grant such a relief, in the
circumstances of the case, can certainly not be discarded in the
same way. A declaratory order implies no command. It is well
established that, while a Court cannot review a decision of the
Governor General in Council made pursuant to a royal pre
rogative per se, it can no doubt review an act done by the
Governor General in Council pursuant to the exercise of a
statutory power (see for instance Border Cities Press Club v.
Attorney-General of Ontario [1955] 1 D.L.R. 404; Re Doctors
Hospital and Minister of Health (1976) 68 D.L.R. (3d) 220;
Re Davisville Investment Co. Ltd. v. City of Toronto (1977) 15
O.R. (2d) 553). Needless to repeat that the Governor General
in Council is not above the law and that his statutory powers
must be exercised within the limits, for the purpose of, and
according to the law.
In my view, in making decisions under 64(1), the Governor
General in Council makes them on the basis of political
accountability and not on a judicial or quasi-judicial basis. The
scheme of the statutes pertaining to telecommunications is that
decisions involving broad economic questions are entrusted to
the CRTC which is under a strict duty to hold a hearing and to
afford the parties a full opportunity to be heard. The Commis
sion may itself at any time review, rescind, change, alter or vary
any of its orders or decisions (section 63 of the National
Transportation Act), and these orders or decisions, moreover
3 [1979] 1 F.C. 213 at pp. 218 and 221.
are subject to appeal to, and review by, the Courts (section
64(2) to (7) of the Act). The power to "vary or rescind"
entrusted by section 64(1) to the Governor General in Council
is, as I understand it, a power of a different nature altogether:
it is a political power for the exercise of which the Cabinet is to
be guided by its views as to the policy which in the circum
stances should be followed in the public interest. Its exercise
has nothing to do with the judicial or quasi-judicial process.
In Labour Relations Board of the Province of
British Columbia v. Oliver Co-Operative Growers
Exchange 4 Judson J. held it was a lawful exercise
of a statutory power to "vary" by substituting one
Union for another in a certificate of bargaining
authority. At page 11 he said:
The issue is whether the Board had power to do this under s.
65(2) of the Act, which reads:
65. (2) The Board may, upon the petition of any employ
er, employers' organization, trade-union, or person, or of its
own motion, reconsider any decision or order made by it
under this Act, and may vary or revoke any such decision or
order.
The majority in the Court of Appeal held that the Board's
power under s. 65(2) and regulation 9(a) was limited to the
substitution of a new name for an old and that the word "vary"
in s. 65(2) could not support the substitution of another union
for that set out in a Certificate of Bargaining Au
thority. That would amount to a new and different certifica
tion, a replacement of one union by another, a change that
could only be brought about by following the procedure laid
down by ss. 10 and 12. The decision is that Local 1572, being a
new union, should have applied for certification and not varia
tion of an existing certificate and that variation of a certificate
in the circumstances of this case was beyond the powers of the
Board. The learned judge of first instance and Davey J.A., in
the Court of Appeal, were of a contrary opinion and held that
the Board had jurisdiction under s. 65(2). I am of the opinion
that this is the correct view to take of the Act.
In Bakery and Confectionery Workers Interna
tional Union of America Local No. 468 v. White
Lunch Limited 5 after C Ltd., the named employer,
went into voluntary liquidation, the Labour Rela
tions Board of British Columbia issued an order
substituting another party for the named employer
C Ltd., purportedly by exercising its statutory
power to "vary". Hall J. at page 295 said:
4 [1963] S.C.R. 7 at p. 11.
5 [1966] S.C.R. 282.
Bull J.A. in the Court of Appeal recognized the wide effect
of s. 65(3) when he said:
It is clear that Section 65(3) confers the power to vary or
cancel a former order or decision in appropriate circum
stances, that this power is intended to cover situations which
are not specifically dealt with in the Statute, and that the
Board is not restricted merely to the facts as they existed
when the original order or decision was made: In re Hotel
and Restaurant Employees' International Union, Local 28 et
al (1954) 11 W.W.R. (N.S.) 11; Regina v. Ontario Lab. Rel.
Bd.; Ex parte Genaire Ltd. (1958) O.R. 637, approved on
appeal (1959) 18 D.L.R. (2d) 588.
Similarly, it is well established law that when there is a
privative clause such as Section 65(1) the Court in certiorari
proceedings is restricted to determining whether or not the
tribunal, in this case the Board of Labour Relations, acted
within its jurisdiction, including matters such as denial of
natural justice, bias, fraud, etc., or whether there is error on
the face of the record. In the disposition of issues within its
jurisdiction, the Board's decision, including certification of a
trade-union, is not open to judicial review, unless the Court
determines that the Board's error goes to jurisdiction as
opposed to an error within its jurisdiction. The decision of the
Board as to who are employees and who are employers is a
finding solely within the jurisdiction of the Board and is
"final and conclusive" and not open to judicial review:
Labour Relations Board et al v. Traders' Service Ltd.
(1958) S.C.R. 672.
However, he limited the effect of s. 65(3) by holding that the
word "vary" in the section "cannot be used as an excuse for
bringing retroactively into being a new unit of employees for
which the Union stands certified ...". I cannot read the section
as narrowing the plain meaning of the word "vary". It is
defined in the Shorter Oxford Dictionary as: "to cause to
change or alter; to adapt to certain circumstances or require
ments by appropriate modifications" nor do I accept the view
that the word "vary" cannot apply retroactively. It has not such
a limited meaning and circumstances will frequently arise
where it must have a retroactive effect. The present case is a
classical example.
In Canadian Pacific Railway Co. v. Manitoba
Pool Elevators 6 Freedman J.A. in discussing the
power of the Governor in Council to vary or
rescind an order of the Board of Transport Com
missioners under section 53(1) of the Railway Act,
R.S.C. 1952, c. 234 said [at page 20]:
Nor can I accept the argument that the governor in council, by
including in his order a direction to the board to suspend the
tariffs, was thereby admitting the sovereignty of the board in
the area having to do with making that order effective. It is
hard to think that such sovereignty could exist in face of the
6 (1963) 43 W.W.R. 18.
explicit language of sec. 53(1) declaring the order of the
governor in council to be binding upon the board. Construing
the order in council in the light of the provisions of sec. 53(1), I
am unable to see in it any admission of board sovereignty as is
argued. On the contrary, the very language of the order in
council is in the form of a direction from a superior body to a
subordinate body. Surely the subordinate body, the board, was
bound to give effect to such direction.
In Rowley v. Petroleum and Natural Gas Con
servation Board' Macdonald J. at page 476 in
relation to the power to "vary" provided for in an
agreement ratified and adopted by concurrent fed
eral and provincial legislation, was of opinion that
"The word `vary' in its ordinary use as well as in
legal phraseology is quite comprehensive in mean
ing and I see no sound reason for restricting its
meaning or that of Article 24 above referred to in
the manner suggested."
In Regina v. Travers and McGuire 8 Ouimet J.
in Quebec Court of Queen's Bench held that the
power, given in section 465 of the Criminal Code
to him as a Judge of a Superior Court of criminal
jurisdiction, on application, where an accused is
committed for trial, to "vary an order for bail"
fixed under subsection (3) of section 463 by a
judge of a county or district court or a magistrate,
is lawfully exercised by him in ordering that bail
be cancelled, or in effect, by reversing the previous
order.
Based upon the express words of section 64(1)
of the National Transportation Act, the dictionary
definitions of the word "vary" which indicate the
word "vary" has a very wide connotation, the
reasoning and concepts in the judicial decisions
interpreting the meaning of the power to "vary" in
section 64(1) and the reasoning and concepts in
the judicial decisions interpreting how the statu
tory powers to "vary" may be exercised in the
other statutes referred to in the cases cited, I am of
the view the Governor in Council in this case in
reversing the decision of the CRTC by substituting
his decision for that of the CRTC and thereby
causing an entirely different result to obtain, was
lawfully exercising his power to vary prescribed in
section 64(1) of the National Transportation Act;
' (1943) 1 W.W.R. 470.
8 (1963) 42 C.R. 32.
and as a consequence, Order in Council P.C. 1977-
3152 dated November 3, 1977 has no jurisdiction
al defects and is intra vires the powers of the
Governor in Council.
The action therefore is dismissed with costs.
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.