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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.
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