Judgments

Decision Information

Re Telecom. Decision CRTC 81-5

Collection	Judgments
Date	1983-03-31
Report citation	[1984] 1 F.C. 79
File numbers	A-352-81
Subjects	Practice Telecommunications

Decision Content

A-352-81

In the matter of an appeal by Bell Canada con cerning a decision of the Canadian Radio-televi sion and Telecommunications Commission, dated March 9, 1981 (Telecom. Decision CRTC 81-5)

Court of Appeal, Urie, Ryan JJ. and Kelly D.J.— Toronto, November 29 and 30, 1982; Ottawa, March 31, 1983.

Practice — Costs — Awarded to interveners in CRTC general rate hearing — National Transportation Act, s. 73 authorizing award of costs — Lawyer on retainer — Whether services of such lawyer "costs" within s. 73 — Whether such lawyer same as salaried employee — Whether intervener en titled to costs when represented by counsel retained by non- party — Argument that "costs" contemplates compensation for expenses incurred — Rate-increase applications differing from litigation — No lis between applicant and interveners — Compensation of certain participants by others may be appro priate — Commission not bound to follow same rules used in litigation — S. 73 does contemplate "costs" indemnification for expenses incurred — Commission erred if rejecting concept

— Costs award herein not offending against indemnification principle — Not established that costs awarded more than compensatory — Judgment of Russell L.J. in In re Eastwood, [1975] 1 Ch. 112 (Eng. C.A.) applied — Not established that relationship with counsel engaged on 'first retainer" basis same as that between party and salaried lawyer — Not established that counsel agreed not to look in any event to interveners for payment — Reasoning in Armand v. Carr, et al., [1927] S.C.R. 348 applying with greater force to proceed ing such as rate-determination hearing — S. 73 giving Com mission broad discretion as to costs — Arguable that Com mission could award costs of intervener leading helpful evidence even if intervener not contractually bound — Appeal dismissed — National Transportation Act, R.S.C. 1970, c. N-17, ss. 43, 64(2) and (5) (rep. and sub. R.S.C. 1970 (2nd Supp.), c. 10, s. 65 (Item 32)), 73 — Railway Act, R.S.C. 1970, c. R-2, s. 2(1).

Telecommunications — Costs awarded to interveners at CRTC general rate hearing — The Public Interest Advocacy Centre, a non-party, furnishing counsel — Whether expenses for such lawyer "costs" within National Transportation Act, s. 73 — Rate-increase applications differing from civil litigation

— No lis between applicant and interveners — Compensation of certain participants by others possibly appropriate — S. 73 contemplating "costs" indemnification for expenses incurred

— Commission erred if rejecting concept — Indemnification

principle not offended against — Reasoning of Supreme Court of Canada in Armand v. Carr applying with greater force to proceeding such as rate-determination hearing — S. 73 giving Commission broad discretion as to costs — Arguable that Commission might award costs where helpful evidence led even if intervener not contractually bound — National Transporta tion Act, R.S.C. 1970, c. N-17, s. 73.

Bell Canada applied to the Canadian Radio-television and Telecommunications Commission for a general rate increase. Interventions were filed by several parties, including the Con sumers' Association of Canada ("CAC") and the National Anti-Poverty Organization ("NAPO"), and a hearing was held. The result was Decision CRTC 78-7. In it, the Commission not only ruled upon Bell's application, but also purported to exer cise its discretion under section 73 of the National Transporta tion Act, by awarding costs to CAC and NAPO. The award to CAC was subsequently expanded by Decision CRTC 80-1. Pursuant to the awards, a Taxing Officer issued Taxation Order 1980-1, which Bell appealed to the Commission.

The costs granted to CAC pertained to legal services per formed by CAC's counsel. The latter was on a retainer with CAC; therefore, according to Bell, he was in the same position as a lawyer who is an employee of his client, receiving a salary which covers any and all legal services rendered during the period of employment. No part of the retainer could be matched with counsel's work in this particular case. He would have received the same payment from CAC even if CAC had not intervened, so his efforts in respect of the intervention did not entail any additional costs for CAC.

In these circumstances, it was argued that the costs awarded CAC fell outside the ambit of the term "costs" as used in section 73. Bell contended that section 73 must be taken to refer only to the costs which might be awarded by a court of law in a civil suit, and that such costs constitute an indemnity for expenses actually incurred in proceedings.

Bell sought to apply this same interpretation of section 73 against NAPO, which was awarded costs in respect of both legal services and disbursements. For the purposes of the rate case, NAPO and other interveners had retained the services of The Public Interest Advocacy Centre ("PIAC"), a' non-profit organization. Mr. Roman, the lawyer who acted for NAPO with regard to the hearing, was actually on retainer with PIAC. The agreement between PIAC and the interveners did not impose upon the latter any definite obligation to pay for the services of PIAC or Roman, although the Taxing Officer found that NAPO and the others may have had an understanding with Roman whereby any costs awarded were to be passed along to PIAC. Most, if not all, of the disbursements relating to NAPO's intervention were in fact made by PIAC. Bell main tained that NAPO neither had paid for the legal services and

disbursements, nor was legally obliged to do so. Consequently, NAPO had not actually incurred any expenses, and compensa tion by an award of "costs" could not be ordered. As for PIAC itself, Bell pointed out that it was not an intervener, and that it had not been awarded costs.

The Commission dismissed Bell's appeal, whereupon Bell appealed the dismissal.

Held, the appeal should be dismissed.

Per Ryan J. (Kelly D.J. concurring): Any award of costs under section 73 must include indemnification as one of its elements, and the Commission was in error if it intended to reject this proposition. It may be that the Commission meant to question only the appropriateness of the particular version of the indemnification principle developed by the courts, and it is correct that, in assessing costs in a rate proceeding, the Com mission is not bound to follow precisely the same rules which apply in court proceedings. The judgment in Re Bell Canada and Telecom. Decision CRTC 79-5, which at any rate deals with an issue very different from the one in this case, is not authority for restricting the Commission in that way. There are considerable differences between court processes and those of the Commission, for which differences allowances must be made. Furthermore, even if the Commission did regard the indemnification principle as a non-essential in a section 73 award, that error would be immaterial, inasmuch as the princi ple was not in fact offended by the awards which were made.

In so far as CAC is concerned, it is unclear from the record exactly what the terms of counsel's retainer were. However, the decision of the English Court of Appeal in Re Eastwood affirms that even in the courts, and even where a lawyer is on salary, it is not improper to tax a counsel fee as if it pertained to an independent lawyer; and the same decision also asserts that such a taxation generally will not go beyond indemnifica tion of the party represented by, and paying the salary of, the lawyer. These conclusions would apply all the more forcefully where counsel is on a retainer. There would be a reviewable error with respect to CAC's award only if it were shown that the award provided more than indemnification, but Bell has not even attempted to demonstrate this. Furthermore, counsel's involvement in the Bell rate case has made him unavailable to perform other services for CAC.

In relation to the NAPO award, regard should be had to the decision of the Supreme Court of Canada in Armand v. Carr. According to that precedent, it would be proper to deny NAPO costs for legal services only if there were a binding agreement prohibiting Roman from looking to the interveners for payment of his costs under any circumstances. The Taxing Officer made no express finding of fact that an agreement of this nature existed. Nor does the evidence support such a finding. There fore, the fact that Roman appeared as counsel for NAPO and the others must be taken to have imposed on the interveners an obligation to pay the reasonable costs of his services. And since,

in the light of Armand, the award relating to legal services would not have involved an error of law even in a civil action, the same is unquestionably true in the instant rate proceeding, given the broad discretion accorded the Commission by section 73.

Although the disbursements for which NAPO was awarded costs were actually made by PIAC, it does not necessarily follow that, for taxation purposes, those disbursements were not costs of NAPO. It is not a legal error to award NAPO costs with respect to the disbursements in the absence of proof that NAPO was not even contingently liable for those expenses.

Even where there is no legal obligation on the part of a particular intervener (such as NAPO) to pay for expenses, arguably the Commission would still have the power to award costs to that intervener. This might be the case if the intervener has made a helpful contribution to the Commission's work—at least if, as a practical matter, it also is likely that the costs awarded would be used to compensate the one who incurred the expenses.

Per Urie J.: In proceedings before a regulatory tribunal, including those to which section 73 applies, the word "costs" need not be assigned the meaning that it bears in judicial proceedings, where, generally speaking, it imports the compen sation of a successful litigant. Whether an intervener or other party appearing before a tribunal has incurred liability for expenses in relation to the appearance is one factor which may be considered in deciding upon the party's entitlement to costs, but it is neither the only factor nor even a necessary factor. A rate-fixing hearing does not involve a lis. Its purpose is to obtain meaningful reaction from interested parties, who may in a given case contribute to the Commission's understanding of the matters before it without having incurred actual, measur able expenses. Such contributions should be encouraged and rewarded, and this cannot be done if costs are to be awarded only as indemnification for expenses actually incurred. Section 73 thus allows the Commission to exercise discretion—as to the principles applicable and the factors to be considered in the making of an award.

Re Bell Canada and Telecom. Decision CRTC 79-5 does not preclude the Commission's awarding costs to a participant who has not made any actual expenditures. In any event, though, the comments in that case should be restricted in their applica tion to the particular issue dealt with therein, especially since other appellate courts, considering statutes with subject- matters and wording similar to those of the National Trans portation Act, have taken the position that entitlement to costs need not be tied to the principle of compensation.

Thus it cannot be said that the Commission, in dismissing the appeal, improperly exercised its discretion by applying any wrong principle.

CASES JUDICIALLY CONSIDERED

APPLIED:

In re Eastwood, [1975] 1 Ch. 112 (Eng. C.A.); Armand v. Carr, et al., [1927] S.C.R. 348; Re Green, Michaels &

Associates Ltd. et al. and Public Utilities Board (1979), 94 D.L.R. (3d) 641 (Alta. C.A.); Newfoundland & Labrador Hydro v. Newfoundland & Labrador Federa tion of Municipalities (1980), 24 Nfld. & P.E.I.R. 317; 65 A.P.R. 317 (Nfld. C.A.).

DISTINGUISHED:

Re Bell Canada and Telecom. Decision CRTC 79-5, [1982] 2 F.C. 681; 41 N.R. 221 (C.A.).

COUNSEL:

B. Courtois and D. C. Kidd for Bell Canada. G. MacKenzie and G. van Koughnett for Canadian Radio-television and Telecommuni cations Commission.

J. J. Robinette, Q.C. and M. Wolpert for National Anti-Poverty Organization, Inuit Tapirisat of Canada, Tagramiut Nipingat Inc. and S. A. Rowan.

K. J. MacDonald for Consumers' Association of Canada.

SOLICITORS:

E. E. Saunders, Q.C., Hull, Quebec, for Bell Canada.

Campbell, Godfrey & Lewtas, Toronto, for Canadian Radio-television and Telecommuni cations Commission.

The Public Interest Advocacy Centre, Ottawa, for National Anti-Poverty Organiza tion, Inuit Tapirisat of Canada, Tagramiut Nipingat Inc. and S. A. Rowan.

K. J. MacDonald for Consumers' Association of Canada.

The following are the reasons for judgment rendered in English by

URIE J.: I have had the advantage of reading the reasons for judgment to be delivered by Mr. Justice Ryan. While I agree with him in his pro posal to dismiss the appeal, with great deference I find myself in disagreement with the reasoning whereby he arrived at that result. It is for this reason that it is necessary for me briefly to set out why I have reached the conclusion to which I have come.

Mr. Justice Ryan has set out the facts and the relevant statutory authorities in his reasons so that it will not be necessary for me to- repeat them except to the extent necessary to make what I have to say intelligible.

An award of costs, whether in a judicial pro ceeding or before a regulatory or other tribunal and apart from some statute or rule or regulation providing for the contrary, is in the discretion of the court or tribunal. Under the National Trans portation Act, R.S.C. 1970, c. N-17 ("the Act"), section 73' provides the authority for the Canadi- an Radio-television [and Telecommunications] Commission ("the Commission") to exercise its discretion to grant costs in any proceeding before it. As my brother Ryan pointed out, section 43 of the Act provides that words and expressions in that Act have the same meaning as in the Railway Act [R.S.C. 1970, c. R-2]. In the latter Act section 2 provides that " `costs' includes fees, counsel fees and expenses".

The principal issue in this appeal is whether the meaning to be ascribed to the word as it appears in the Act should be the meaning given it in ordinary judicial proceedings in which, in general terms, costs are awarded to indemnify or compensate a party for the actual expenses to which he has been put by the litigation in which he has been involved and in which he has been adjudged to have been a successful party. In my opinion, this is not the interpretation of the word which must necessarily be given in proceedings before regulatory tri bunals.

I use the word "necessarily" because I have no doubt that an element which may be considered by the tribunal in determining the entitlement of a party appearing before it to costs, is whether or not the party has incurred liability for expenses for the purpose of its appearance before the tribunal. It is not, however, in my view, either the only or a necessary element. As has been said on other occasions, the proceedings before the Commission in a rate-fixing hearing are not adversarial in nature; there is no lis inter partes. The purpose of a hearing in such a proceeding is to obtain mean

' 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.

ingful reaction from concerned and interested par ties affected by the rate-fixing, whether adversely or positively. Such parties may or may not have incurred actual, measurable expenses, such as counsel fees, in providing input to the proceedings and yet have contributed in a very real fashion to a better understanding by the Commission of some of the issues involved in the proposed rate struc ture. Such contributions to a better understanding of the issues should, as I see it, be encouraged and rewarded. If this is so, obviously such encourage ment cannot be based solely on indemnification for actual costs incurred. It is at this point that the Commission's discretion as to who is deserving of an award of costs, as to the elements to be con sidered and the principles to be applied in the award, is exercised in any of the ways contemplat ed by section 73.

There are authorities for this view of the appli cable principle. I will cite only two. Each puts the proposition succinctly and in a manner which I adopt. The first is a decision of the Alberta Court of Appeal arising from an award of costs by the Public Utilities Board in a rate hearing in Re Green, Michaels & Associates Ltd. et al. and Public Utilities Board' in which Clement J.A. at pages 655-656 of the report put the matter in this way:

In the factum of the appellants a number of cases were noted dealing with the discretion exercisable by Courts in the matter of costs of litigation, as well as statements propounded in texts on the subject. I do not find them sufficiently appropriate to warrant discussion. Such costs are influenced by Rules of Court, which in some cases provide block tariffs, and in any event are directed to lis inter partes. We are here concerned with the costs of public hearings on a matter of public interest. There is no underlying similarity between the two procedures, or their purposes, to enable the principles underlying costs in litigation between parties to be necessarily applied to public hearings on public concerns. In the latter case the whole of the circumstances are to be taken into account, not merely the position of the litigant who has incurred expense in the vindica tion of a right.

2 (1979), 94 D.L.R. (3d) 641 [Alta. C.A.].

The second case to which I will make reference is a decision of the Newfoundland Court of Appeal arising out of a rate-fixing hearing by the Board of Commissioners of Public Utilities at which the Newfoundland & Labrador Federation of Munici palities participated and were awarded costs by the Board to be payable by the public utility. Gushue J.A., speaking for himself and Morgan J.A., at pages 325-326 [Nfld. & P.E.I.R.] of the report of the case of Newfoundland & Labrador Hydro v. Newfoundland & Labrador Federation of Municipalities 3 said this:

The same finding applies to the final ground of appeal. Section 14(1) states clearly that "costs may be fixed at a sum certain, or may be taxed and the Board may order by whom the same are to be taxed ..... and the Board may prescribe a scale under which costs are to be taxed". The statement is clear and unequivocal and capable of only one meaning. The manner in which the costs are arrived at, and awarded, is a matter strictly within the discretion and competence of the Board, and this Court has no jurisdiction to interfere with that discretion, unless of course improperly exercised. The fact that a litigant in a court proceeding is subject to various rules relating to costs is of no relevance here. The Board may well find in the future (if it has not already done so) that it is desirable to formulate rules and regulations and binding scales of fees with regard to cost awards and to insist upon taxation of bills of costs, but that once again is within the sole discretion of the Board and, as the Act presently stands, may not be dictated by this Court or any other body, save the Provincial legislature.

To briefly summarize, the Board has the unquestioned right to exercise the specific powers granted it by the Act. Where, as in this case, there are as well discretionary powers granted, this Court may not interfere unless it can be demonstrated that the Board has proceeded on a manifestly wrong principle or exer cised that discretion for an improper purpose. In my view, this has not been demonstrated here.

In light of the comments of Gushue J.A., it is interesting to note that the Commission did, in fact, prior to the issuance of the Taxing Officer's order in the case at bar, formulate rules for the awarding of costs on the hearing of an application for a general rate increase. Those rules were not in force at the time the Commission's decision to award costs to the Consumers' Association of Canada ("CAC") and National Anti-Poverty Organization ("NAPO") was made but a draft thereof had been circulated and the Commission

3 (1980), 24 Nfld. & P.E.I.R. 317; 65 A.P.R. 317 [Nfld. C.A.].

applied the criteria in the draft rules in determin ing to which parties costs would be granted.

However, it is not from that decision, No. 78-7, that the appeal was taken. Rather, it is from the Commission's Decision 81-5 which held that the Taxing Officer did not err in principle in awarding counsel fees to CAC and costs to NAPO. In reaching that conclusion, the Commission made the following finding:

In the Commission's view, the application of the principle of indemnification upon which Bell relies would not be appropri ate in regulatory proceedings before it. In the Commission's opinion, the proper purpose of such awards is the encourage ment of informed public participation in Commission proceed ings. It would inhibit public interest groups from developing and maintaining expertise in regulatory matters if, in order to be entitled to costs, they had to retain and instruct legal counsel in the manner appropriate to proceedings before the courts in civil matters. On the other hand, no useful purpose would be served by requiring public interest groups artificially to arrange their affairs, by means, for instance, of forgivable debts or bonus accounts, in order to avoid a restrictive interpretation of the term "costs".

As I read it, that finding is an amplification of the Commission's view as to the proper principles to be applied in awarding costs in rate-application hearings as expressed in its Decision 78-7. This Court, as a matter of law, would not have inter fered with that exercise of the Commission's dis cretion unless the Court had been satisfied that the Commission had proceeded on a wrong principle in arriving at its conclusion. Neither should we inter fere with its decision in this appeal from Decision 81-5 which, as an expression of its view as to the inappropriateness of the principle of indemnifica tion in the award of costs in regulatory proceed ings, is an extension of the exercise of its discretion to award costs in such proceedings. As I have stated, I agree with its view that in proceedings before the Commission "costs" need not be merely compensatory. Therefore, the Commission did not err in dismissing the appeal from the ruling of the Taxing Officer.

The next question to be examined is whether that finding is inconsistent with this Court's deci sion in Re Bell Canada and Telecom. Decision CRTC 79-5 4 and thus cannot stand.

In that case the only issue before the Court was whether the applicable statutory provisions were sufficiently broad to empower the Commission to require Bell Canada, as an applicant for a rate increase, to pay for an independent study in con nection therewith commissioned by the Commis sion itself. The Court held that the cost incurred by the Commission in acquiring the study was not properly assessable against the applicant for the rate increase. As Mr. Justice Ryan observed, the issue in that case is obviously quite different from that pertaining in this case. The essence of the decision, as I see it, is found in the last two sentences in the following paragraph found on [pages 687-688] of the report [F.C.]:

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. (See: Hals- bury's Laws of England, Third Edition, Vol. 11, p. 293; Bal- lentine'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.) 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 (Consolidation) 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 companies that are subject to its jurisdiction. [Emphasis added.]

While what was said in the earlier part of the quoted passage appears to be totally at odds with my finding that the word "costs" as used in section 73 should be given a broader meaning than that ascribed to it in the courts, taken in context with

° [[1982] 2 F.C. 681]; 41 N.R. 221 [C.A.].

the last two sentences which clearly relate solely to the narrow issue before the Court in that case, there really is not a conflict between the two findings. I think it is clear that the issue in this case was not contemplated at all by the Court in the earlier case. I am fortified in this view by the following passage from page [687] of the report [F.C.] which is also contained in a quotation in Ryan J.'s reasons:

Moreover, even in clearly non-adversarial proceedings like applications 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 compensate the other par ticipants for the expenses that they have incurred by reason of their participation in those proceedings. [Emphasis added.]

Pratte J. in that passage has likened the powers of the Commission to that of a court in its ability to indemnify a participant in a hearing before it for expenses to which such participant may have been put by so participating. That does not mean, as I read the passage in the context of the whole of his reasons, that the Commission is precluded from awarding "costs", in the broad sense of that word, to a participant whose contribution has, in the opinion of the Commission, been of value to it in assessing the merits of the application even if such participant had made no actual expenditures, or only nominal ones.

In any event, what was said in the earlier case should, as I see it, be limited to the issue that was then before the Court, viz. the liability of an applicant to pay expenses incurred by the Commis sion on its own account for assistance in assessing the merits of a rate application. It should not be extended to the issue before the Court in this case, particularly when there is persuasive authority from other courts of appeal in respect of statutes in pari materia embodying much the same language as that before this Court. Where there is no clear- cut decision in this Court on the point in issue, as here, those decisions ought to be accorded defer ence and weight by this Court and I am prepared to follow them.

In summary, it is my opinion that it has not been demonstrated that the Commission improper ly exercised its discretion by applying a wrong principle and the appeal should, therefore, be dis-

missed. In the circumstances it is unnecessary for me to examine and adjudicate upon the other grounds of appeal.

Accordingly, as required by subsection 64(5) of the Act [rep. and sub. R.S.C. 1970 (2nd Supp.), c. 10, s. 65 (Item 32)], I would certify an opinion to the Commission that it did not err in any question of law or jurisdiction in making the order appealed from.

* * *

The following are the reasons for judgment rendered in English by

RYAN J.: This appeal raises issues concerning costs which may be awarded to interveners in a general rate hearing conducted by the Canadian Radio-television and Telecommunications Com mission ("the Commission"). The appeal was brought by Bell Canada under subsection 64(2) of the National Transportation Act 5 ("the Act") from a decision made by the Commission on March 9, 1981, Telecom. Decision CRTC 81-5 ("CRTC 81-5"). The decision dismissed an appeal to the Commission from Taxation Order 1980-1, an order made by Taxing Officer David B. Osborn. The taxation order was made on February 19, 1980 pursuant to Telecom. Decision CRTC 78-7 ("CRTC 78-7") dated August 10, 1978. In CRTC 78-7, the Commission awarded costs to a number of interveners in the 1978 Bell Canada General Rate Case, including the Consumers' Association of Canada ("CAC"), and the Nation al Anti-Poverty Organization, Inuit Tapirisat of Canada, Tagramiut Nipingat Inc. and S. A. Rowan (all four of whom are referred to in these reasons as "NAPO and others"). In CRTC 78-7,

R.S.C. 1970, c. N-17 [rep. and sub. R.S.C. 1970 (2nd Supp.), c. 10, s. 65 (Item 32)]. Subsection 64(2) provides:

64....

(2) An appeal lies from the Commission to the Federal Court of Appeal upon a question of law, or a question of jurisdiction, upon leave therefor being obtained from that Court upon application made within one month after the making of the order, decision, rule or regulation sought to be appealed from or within such further time as a judge of that Court under special circumstances allows, and upon notice to the parties and the Commission, and upon hearing such of them as appear and desire to be heard; and the costs of such application are in the discretion of that Court.

the interveners to whom costs were awarded were directed to submit bills of costs to the Taxing Officer; Bell Canada was directed to submit its comments with respect to any claim; and a right to appeal the decision of the Taxing Officer to the Commission was given to the affected parties. Bell Canada exercised its right of appeal.

The costs under dispute were awarded by the Commission under section 73 of the Act, which reads:

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. 6

The costs which were awarded to CAC, and which were disputed, were awarded in respect of legal services performed in connection with the Bell Canada General Rate Case by a lawyer who was engaged on a retainer arrangement by CAC. Counsel for Bell Canada submitted to us, as he submitted on the appeal to the Commission from the taxation order, that such costs are not "costs" within the meaning of the word as used in section 73. His submission was that the retainer arrangement was such as to place the lawyer in the same position as that of a lawyer who is an employee of his client and is paid a salary for all the legal services he provides.

It was also submitted that the costs awarded NAPO and others were not "costs" under section 73 because NAPO and others had neither paid the costs in respect of which the sums were

6 Section 43 of the National Transportation Act provides:

43. In this Part, words and expressions have the same meaning as in the Railway Act.

Subsection 2(1) of the Railway Act, R.S.C. 1970, c. R-2, provides in part:

2. (1) In this Act, and in any Special Act as hereinafter defined in so far as this Act applies,

"costs" includes fees, counsel fees and expenses;

awarded, nor were they legally liable to pay them. The legal services in respect of which the sums were awarded as costs were performed by counsel retained, so it was submitted, by The Public Inter est Advocacy Centre ("PIAC") to act on behalf of NAPO and others, PIAC not itself being a party to or an intervener in the General Rate Case.

Basically, the submission of Bell Canada both on the costs awarded to CAC and to NAPO and others was that "costs" in section 73 means "legal costs", costs that could be awarded in a civil action in the courts, but not otherwise. It was submitted that the term "legal costs" necessarily involves compensation for expenses actually incurred in a proceeding and, it was said, neither CAC nor NAPO and others had actually incurred expenses. The response of CAC and NAPO and others was that section 73 of the Act confers a discretion on the Commission to award "the costs of and inci dental to any proceeding" before it, and to order "by whom and to whom any costs are to be paid". "Costs" is not to be read in what was submitted would be the narrow and technical sense urged by counsel for Bell Canada, but in the broader and more flexible way indicated by the nature of the proceedings conducted by the Commission and the purposes of those proceedings: a rate hearing bears little resemblance to, for example, a tort action or an action for breach of contract, and it would unduly limit the scope of the discretion granted to the Commission by the section to interpret "costs" in the manner urged by Bell Canada. It was submitted, in the alternative, that even if the prin ciple of indemnification were applicable to the award of costs under section 73, the principle had been satisfied in this case because, on the authori ties which the respondents cited, CAC had incurred expenses and NAPO and others were at the very least contingently liable for expenses. There was thus, it was said, an adequate legal basis for the Commission's dismissal of the appeal to it.

CRTC 78-7 was the decision made by the Com mission on Bell Canada's application for a general increase in rates. This appeal is concerned only with the portion of CRTC 78-7 which deals with

the awards of costs to various interveners, and more particularly the awards to CAC and to NAPO and others.

On September 5, 1978, CAC wrote to the Com mission about the costs awards in CRTC 78-7. With the concurrence of Bell Canada, the letter of September 5, 1978 was transformed into a request to review the portion of CRTC 78-7 dealing with the awards of costs to certain interveners. As a result, the Commission issued Telecom. Decision CRTC 80-1 ("CRTC 80-1"), which modified and expanded the costs awarded to CAC.

It may be as well to set out the award to CAC made in CRTC 78-7, as that award was amended by CRTC 80-1:

In the Commission's view, the Consumers' Association of Canada represented not only the interests of the Association's membership but also those of Bell Canada subscribers general ly. The CAC, through its counsel, Mr. Kane, and its expert witness, Dr. Gordon, contributed to a better understanding of a number of relevant issues including that of the relationship between Bell Canada and its subsidiaries.

The Commission accordingly awards costs to the CAC.

CRTC 78-7 awarded costs to NAPO and others in this passage appearing at page 111 of the decision:

Through their counsel, Mr. A.J. Roman, NAPO et al repre sented a broad spectrum of subscriber interests and made an important and substantial contribution not only to the Commis sion's understanding of the relevant issues in the present case, but also to the fulfillment of the Commission's objectives as set forth in Decision 78-4.

In the Commission's view also, the cross-examination by Mr. Roman of a number of the Company's witnesses was clearly aided by the preparatory work performed by his expert witnesses.

The Commission accordingly awards costs to NAPO et al (except for ACCQ which did not request costs).

I will also quote several passages from Taxation Order 1980-1. At page 5 of this order, the Taxing Officer said:

Several interveners (NAPO et al) retained the services of the PIAC and, by virtue of his retainer with PIAC, the services of Mr. Roman as counsel.

PIAC is a not-for-profit corporation which has the following objectives:

2. To provide representation to a range of public interests which are presently unrepresented or underrepresented, in cases of importance to public interest groups.

And he said at page 6:

It is clear that there was never any obligation flowing from NAPO et al to either PIAC or Mr. Roman for their services. If the subject of costs was ever discussed between counsel and these interveners, the understanding was merely that if costs should happen to be awarded, they would be given by the interveners to the PIAC. This understanding is reflected in the terms of reference of the PIAC. According to Mr. Roman, any such bill, in the absence of an award of costs, would simply have had to be written off as an uncollectible debt, a practice which he submitted would accomplish nothing and would not be conducive to good client relations.

Generally, at pages 7 and 8, the Taxing Officer said:

Counsel for NAPO et al submitted that, when it awarded costs, the Commission must be taken to have known all of the salient facts of the relationships between PIAC and its clients, NAPO et al, including the fact that any counsel fee and disbursements recovered in an award of costs would go to PIAC.

Counsel for Bell Canada did not dispute the claim for disburse ments as submitted by PIAC, nor did he argue the amount for counsel fee. Rather, he submitted that the claim for costs by NAPO et al should be dismissed in its entirety, for one or more of the following major reasons:

(a) None of the interveners actually incurred the expenditures being claimed. The jurisprudence with respect to costs in the courts clearly establishes that costs are intended to be an indemnity, and where there is no liability, there can be no indemnity.

(b) The expenses were incurred by the PIAC and not by the interveners; PIAC was not an intervener and it was not award ed costs, nor could the decision of the Commission be interpret ed to mean that it intended to award costs to PIAC.

(c) PIAC did have funding available to cover the expenses incurred, whether specifically granted for this case or not. Furthermore, PIAC restricts its services to those clients who do not have the means to retain other counsel, i.e. a member of the Bar. This would presumably include counsel who could be retained in the expectation or by virtue of an award of costs by the Commission.

He also said, at page 11:

I have reviewed the cases referred to me by counsel for all parties, but I have not found conclusive authority therein for purposes of the present case. Most of them deal with costs in a traditional legal context, and assume a traditional relationship between counsel, client and tribunal. Regulatory agencies and public interest interveners pose different problems and, while legal cases can be a useful guide in the area of costs, particular ly with respect to quantum, the approach to the problems in this case cannot, in my opinion, be circumscribed by a strict application of traditional legal principles. Therefore, I have

interpreted the Commission's decision in light of the knowledge that public participation is a fragile concept, more talked about than realized, that public interest advocacy groups offer a different, but no less valuable, approach to participation than does the traditional solicitor-client form, and that a restrictive interpretation of a costs award by the officer responsible for implementing it would serve no useful public purpose.

I will also quote passages from CRTC 81-5, the decision of the Commission which dismissed the appeal from the taxation order. At page 3 of CRTC 81-5, the Commission said:

Bell raised two issues of principle for the determination of the Commission in this appeal, expressed by the Company as follows:

"the Taxing Officer misdirected himself on questions of principle with respect to the taxation of costs in favour of the CAC and NAPO et al in that:

[b] in addition, with respect to counsel fees for the CAC and with respect to all costs taxed in favour of NAPO et al, no costs were incurred by these intervenors as a result of Bell Canada's general rate application and these intervenors are, therefore, not entitled to indemnification for these costs from Bell Canada."

And at pages 7 and 8, the Commission stated:

The second issue of principle raised by Bell in this appeal concerned the proper definition of the term "costs". Bell relied on the fact that the word "costs" is restrictively defined in the jurisprudence relating to civil litigation to include only indem nification for costs of litigation actually incurred by interveners.

Referring first to NAPO et al, Bell argued that PIAC incurred all costs relating to the participation of NAPO et al in the 1978 Bell rate case. The PIAC is not the intervener to whom costs were awarded by the Commission. Bell submitted that an award of costs is only made to a client if that client is liable to pay costs to his counsel and that, in consequence, the taxing officer could only indemnify NAPO et al if NAPO et al were legally required to reimburse PIAC for the costs of the intervention.

Bell also applied this line of argument to CAC. In the 1978 Bell rate case, CAC was represented by its general counsel, who received a regular retainer from CAC. Thus, there was no indication that CAC would have expended any additional funds for remuneration of its general counsel because of his participa tion in the Bell rate case. Bell argued that no counsel fees should therefore have been awarded by the taxing officer to the CAC.

ment of informed public participation in Commission proceed ings. It would inhibit public interest groups from developing and maintaining expertise in regulatory matters if, in order to be entitled to costs, they had to retain and instruct legal counsel in the manner appropriate to proceedings before the courts in civil matters. On the other hand, no useful purpose would be served by requiring public interest groups artificially to arrange their affairs, by means, for instance, of forgivable debts or bonus accounts, in order to avoid a restrictive interpretation of the term "costs".

The Commission therefore finds that the taxing officer did not err in principle in awarding counsel fees to CAC and costs to NAPO et al.

The Bell Canada appeal of Taxation Order 1980-1 is accord ingly dismissed.

It may be as well, before turning more particu larly to the legal issues, to recall precisely what is being appealed: it is the decision of the Commis sion expressed in these words: "The Bell Canada appeal of Taxation Order 1980-1 is accordingly dismissed." The decision of the Commission to award costs to CAC and to NAPO and others, a discretionary decision, was not under appeal to the Commission. The Taxing Officer, in making his taxation order, was acting pursuant to the Com mission's decision to award costs; he was not exer cising a discretion. The Commission could have allowed an appeal to it if the amounts awarded by the Taxing Officer had been in issue and found to be in error, but they were not in issue. The Com mission could also have allowed the appeal to it if the taxation order made by the Taxing Officer was not supportable in law. The critical issue on the appeal to the Commission, as presented by Bell Canada, was whether CAC or NAPO and others had actually incurred expenses which they had paid or which they were legally liable to pay; if they had not, it was argued, it was legal error to award costs to them because such an award would violate the principle of indemnification inherent in "legal costs".

The Commission, in its reasons for dismissing the appeal from the taxation order, addressed, at pages 7 and 8 of its reasons (in the passage I quoted above) what it termed "the second issue of principle raised by Bell in this appeal ... the proper definition of the term `costs'." I will not quote the relevant four or five paragraphs again. I

will, however, quote this sentence: "In the Com mission's view, the application of the principle of indemnification upon which Bell relies would not be appropriate in regulatory proceedings before it." I am not quite sure whether the Commission meant to reject the principle of indemnification as a necessary element of an award of costs by it, or whether it meant simply to question the appropri ateness of the principle of indemnification "upon which Bell relies", that is to say, the principle as developed by the courts in the taxing of costs in court cases.

I will first consider the sense in which the word "costs" is used in section 73 of the Act. This Court had occasion to consider its meaning in Re Bell Canada and Telecom. Decision CRTC 79-5. 7 In that case, the Commission had ordered Bell Canada and B.C. Tel. to pay costs in respect of studies to be prepared for the Commission by consultants for use in a public hearing in connec tion with an application by Bell Canada and B.C. Tel. for rate increases. The appellant's basic sub mission was that, for purposes of section 73, "the costs of a proceeding do not include the expenses incurred by the tribunal in order to hear and determine that proceeding" [at page 686 F.C. Footnote omitted.]. The issue was obviously quite different from the issue in this case, and the passages I am about to quote must, of course, be read with this difference in mind.

In the course of his reasons, Mr. Justice Pratte, speaking for the Court, said at [pages 687-688 F.C.]:

Earlier in his reasons, Mr. Justice Pratte had noted, as had been submitted in that case and was submitted in this, that an application for a rate increase differs from ordinary litigation. He said at page [687 F.C.]:

7 [[1982] 2 F.C. 681]; 41 N.R. 221 [C.A.].

... proceedings before the Commission are different from ordinary litigation. When a telephone company asks the Com mission to approve a rates increase which is opposed by interveners, there is, strictly speaking, no /is between the applicant and the interveners. However, rates applications are not the only proceedings that may be brought before the Commission. Other proceedings, for example complaints against companies which are subject to the Commission's juris diction, resemble ordinary litigation. Moreover, even in clearly non-adversarial proceedings like applications 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 compensate the other participants for the expenses that they have incurred by reason of their participation in those proceedings.

This passage recognizes that in a rate proceed ing it may well be appropriate to require a partici pant "to compensate the other participants for the expenses that they have incurred by reason of their participation in those proceedings." Again, in the quotation taken from [pages 687-688], when speaking of "costs" as carrying "its normal legal meaning", Mr. Justice Pratte refers to "its normal legal meaning according to which the costs of a proceeding are the costs incurred by the parties or participants in that proceeding ...." It does not, as I see it, follow that in assessing costs in a rate proceeding, the Commission is bound to follow precisely the same rules as would a taxing master assessing costs in litigation in the courts. Allow ances would have to be made for differences in the purposes of the two quite different processes and in the practices and procedures followed in each. I am of opinion, however, that the term "costs", as used in section 73, does carry with it, as an essential aspect, the element of compensation or indemnification for expenses incurred in a pro ceeding. The Commission would thus have been in error if, in its reasons for dismissing the appeal to it, it meant to reject the proposition that indem nification is an essential purpose in an award of costs under section 73 of the Act. It will not, however, be necessary to determine precisely what the Commission meant if, in any event, the indem nification principle was not offended by the award of costs to CAC and to NAPO and others. It was, of course, the respondents' alternative submission that the principle had not been infringed.

I now turn to the submission that there was error in law in awarding costs to CAC, having in mind that the lawyer who represented CAC at the Bell Canada rate hearing was receiving a "first

retainer" from CAC. I take this to be a submission that, though CAC incurred an expense by paying a retainer to counsel to appear for them in all cases during the period covered by the retainer, no part of the retainer could be assigned to counsel's appearance in the Bell Canada Rate Case; counsel would have received the same sum from CAC even if CAC had not intervened.

A problem with this submission is that the record is far from being clear on the terms of the retainer. The Commission, in its reasons for dis missing the appeal from the taxation order, simply referred to Bell Canada's "line of argument" to the effect that, in the Bell Canada Rate Case "CAC was represented by its general counsel, who received a regular retainer from CAC. Thus, there was no indication that CAC would have expended any additional funds for remuneration of its gener al counsel because of his participation in the Bell rate case." In its letter of September 5, 1978 to the Commission concerning the costs awarded in CRTC 78-7, the CAC wrote:

In its decision the Commission declined to award costs related to the appearance of CAC counsel who was described as "a full time employee of the Association". In fact he was not a full time employee but rather represented the Association on a first retainer basis and did other legal work as well ....

So far as I can tell from the record before us, CAC did intervene in the Bell Canada Rate Case and was represented by counsel. In his taxation order, the Taxing Officer said at page 12:

... the CAC submitted affidavit evidence that counsel "spent approximately 10 days at the hearings of this case and in excess of 5 days preparing for it." At the taxation hearing, counsel for the CAC suggested that the services of counsel should be evaluated at between $750.00 and $1,250.00 per day. Counsel for Bell Canada made no submission as to quantum, but agreed to the principle that the market value of counsel fee would be acceptable to Bell Canada.

There seems no doubt, as a matter of record, that CAC was officially represented by counsel who appeared in the proceedings as such.

I would refer to the English Court of Appeal decision in In re Eastwood.' In that case, the Attorney-General had been represented by a sala ried solicitor; and it seems to me that what Lord Justice Russell said in the passages I am about to quote would apply with even greater force to a solicitor or counsel appearing on retainer. In my view, by analogy to taxation in a case in the courts, if would not be error for the Taxing Officer to tax counsel's fee—as he seems to have done—as if it were the bill of an independent solicitor or counsel, having regard in exercising his discretion to the circumstances of the proceeding. As Lord Justice Russell said in Re Eastwood at page 132:

It is a sensible and reasonable presumption that the figure arrived at on this basis will not infringe the principle that the taxed costs should not be more than an indemnity to the party against the expense to which he has been put in the litigation.

Lord Justice Russell also said at page 132:

There may be special cases in which it appears reasonably plain that that principle will be infringed if the method of taxation appropriate to an independent solicitor's bill is entirely applied: but it would be impracticable and wrong in all cases of an employed solicitor to require a total exposition and breakdown of the activities and expenses of the department with a view to ensuring that the principle is not infringed, and it is doubtful, to say the least, whether by any method certainty on the point could be reached. To adapt a passage from the judgment of Stirling J. in In re Doody [1893] 1 Ch. 129, 137, to make the taxation depend on such a requirement would, as it seems to us, simply be to introduce a rule unworkable in practice and to push abstract principle to a point at which it ceases to give results consistent with justice.

A showing by Bell Canada or an admission by CAC that CAC's counsel represented CAC at the hearing "on a first retainer basis and did other legal work as well ..." falls short of establishing that the costs actually awarded in respect of coun sel's fee were more than compensatory.

The point, as I see it, is that the Commission had before it in the Bell Canada Rate Case, as an intervener, the CAC, which was represented, as a matter of record, by legal counsel. The Taxing Officer taxed the CAC bill of costs, as I read his

8 [1975] 1 Ch. 112.

taxation order, as if the CAC had been represent ed by independent counsel. On the basis of Re Eastwood, this would not have constituted legal error, even in a case before the courts, absent a showing that CAC would be more than indemni fied by an award of costs on this basis. The most that can be said in criticism of the award is that counsel had been retained on a "first retainer" basis (whatever that may mean). There was not, however, as I read the record, any effort by Bell Canada or by anybody else to establish that, that being so, CAC was more than reimbursed for its expenses. Bell Canada's case simply was that the relationship between CAC and its counsel in all relevant aspects was the same as if there had been a contract of salaried employment covering all legal services so that counsel's appearance in the Bell Canada Rate Case could not have added to CAC's costs. A finding that counsel was engaged on a "first retainer" or "regular retainer" basis, however, falls short of establishing that the rela tionship was essentially the same, for relevant purposes, as that between a party and a lawyer employed by him on salary. The appellant has failed to persuade me that there was error of law in the award of costs to CAC. I would merely add that, to the extent counsel was engaged in the Bell rate hearing, he was not available to perform other services. And I would also observe that I do not find it necessary to decide whether it would have made a difference if counsel had been on salary. But I very much doubt that it would have.

In respect of Bell Canada's submission that CAC is not entitled to costs for counsel's appear ance in the Bell rate hearing because his retainer would cover an indefinite number of cases, I would add another quotation from Lord Justice Russell in Re Eastwood. He said at pages 129 and 130:

The question of principle involved is whether the taxing master correctly approached the problem of taxation of costs awarded to the Crown, having regard to the fact that the Crown was represented on the originating summons not by an independent

solicitor but by the Treasury Solicitor and his department. The question of principle would apply equally to the case of a local government authority, a nationalised industry such as British Rail, and any industrial concern conducting litigation through its own legal department of which all the expenses, including the salaries of solicitors, assistant solicitors and legal execu tives, are paid by it, and not by instructing an independent solicitor or firm to act for it.

The provisions of R.S.C., Ord. 62 relating to taxation of costs awarded to a party to litigation against another party, or as here to be paid out of an estate or trust fund, are at least primarily directed to cases where the party has instructed an independent solicitor: for example, rule 25 requires that the bill of costs of the successful party to be submitted for taxation shall enter "professional charges" in a separate column, and be indorsed with the name or firm of the solicitor "whose bill it is." Now, except no doubt for purposes of internal accounting, the employed solicitor or legal department renders no bill to the employer or organisation: he or it makes no professional charges. It is however quite clear on authority that it is not permissible to say that consequently the party is limited to disbursements specifically referable to the particular litigation on the ground that the salaries of employees and other general expenses of the department would have been incurred by the party in any event.

I will consider next the submission that the Taxing Officer erred in law in awarding costs to NAPO and others and, accordingly, that the Com mission erred in upholding his order. This submis sion was based on what, it was argued, was a finding of fact made by the Taxing Officer. I have already quoted the passage on which counsel relied, but it may be as well, as a matter of convenience, to quote it again at this point. At page 6 of Taxation Order 1980-1, the Taxing Officer said:

Counsel's submission was simple and blunt: NAPO and others had no expenses. They had paid for nothing and were under no legal obligation to pay for anything in connection with their partici pation in the Bell Rate Case. What expenses were incurred, were incurred by PIAC, and PIAC was

not even a party to the proceedings. There were simply no expenses incurred by NAPO and others; there was nothing for which they could be indemnified.

In considering this submission, I find Armand v. Carr, et a1. 9 helpful. In that case, the appellant (who had been the defendant) had been represent ed in the courts below and on his appeal to the Supreme Court by counsel provided by his insur ance company. The insurer was bound by the insurance contract to defend the insured in actions brought against him arising from the event insured against. The defendant, who had been unsuccessful below, appealed successfully to the Supreme Court and was awarded costs. The Registrar refused to tax costs in his favour because his legal expenses were to be borne by the insurance company. He appealed and his appeal was heard and allowed by the Court.

Chief Justice Anglin reviewed the material before the Court in this passage at pages 349 and 350:

Upon careful consideration of all the material before us, we are satisfied that the insurance company instructed its own solicitors to defend the action not on its behalf but on behalf of the appellant, thus implementing its obligation "to defend in the name and on behalf of the insured any civil actions, etc." The solicitors so instructed entered an appearance in which they style themselves "solicitors for the defendant" (the appel lant). For so doing his authority was necessary and was undoubtedly obtained. Their character as defendant's solicitors they maintained throughout the litigation in which, from time to time, the appellant personally took part by making affidavits, giving evidence, executing a bond, etc. From this course of conduct his employment of the solicitors who appeared on his behalf, or his sanctioning their carrying on his defence, is the only proper inference; and whether it should be taken that the insurance company, in instructing its solicitors to defend the action, etc., acted as agent for the defendant, or that he personally so employed the solicitors, their retainer as his solicitors in a manner binding upon him admits of no doubt. Such retainer or employment carries with it personal liability of the defendant (appellant) for the costs reasonably incurred by the solicitors pursuant to it, unless there was a contract or agreement binding on the solicitors excluding such liability.

The Chief Justice then addressed the question whether there was an agreement between the

9 [1927] S.C.R. 348.

insured and the solicitors excluding the personal liability of the insured for the costs reasonably incurred by the solicitors pursuant to the retainer. He stated, at page 350, that the Registrar had not made a definite finding,

... that there was an agreement relieving the defendant-appel lant of all liability to his solicitors such as must be established by the respondent-plaintiffs, if they would on that ground avoid payment of party and party costs to the successful appellant. Adams v. London Improved Motor Coach Builders, Ltd., [1921] 1 K.B. 495.

Later, he stated at page 351:

... we feel satisfied of this: that upon the direct evidence in the case it would be wrong to draw the conclusion that there was an express bargain that the defendant was not to be liable to the solicitors for the costs incurred; and, quite apart from the express evidence that no such arrangement was made, it appears to us that there was no evidence given on behalf of the respondents that an express arrangement to that effect had in fact been made.

Upon the facts in evidence the appellant's right to recover from the respondents the costs of his appeal awarded to him by the judgment of this court cannot, we think, be denied.

It seems to me that the critical question is whether the passage from the reasons of the Taxing Officer relied upon by counsel for Bell Canada amounts to an express finding of fact, accepted by the Commission, that there was an agreement between NAPO and others and Mr. Roman that he would not in any event look for payment of his costs to NAPO and others. The Taxing Officer did state that there was never an obligation flowing from NAPO to Mr. Roman for his services. But this seems to have been a conclu sion based on the next three sentences in the paragraph I have quoted above from his decision, or an inference drawn from them. The Taxing Officer, in those sentences, appears to doubt that the subject of costs was even discussed between NAPO and others and Mr. Roman. I am not sure what the last sentence in the paragraph means, but it may simply mean that Mr. Roman never intend ed to bill NAPO for his services. I would refer to one other sentence in the Taxing Officer's reasons at page 5:

Several interveners (NAPO et al) retained the services of the PIAC and, by virtue of his retainer with PIAC, the services of Mr. Roman as counsel.

In Armand v. Carr, Chief Justice Anglin said at page 351:

The evidence is not very definite or very precise. In our opinion it clearly falls short of establishing any agreement binding on the solicitors that they should not in any event look for payment of their costs to the appellant.

This, in my view, applies to this case. In line with Armand, I would say that the fact that Mr. Roman appeared on the record of the proceedings as counsel for NAPO and others, by analogy to court proceedings, imposed on NAPO and others an obligation to pay the reasonable costs of his services unless there was an agreement between him and them that he would in no circumstances look to them for his fees. Bell Canada did not establish that there was an agreement between NAPO and others and Mr. Roman that he would in no event be paid by them for his services, nor was it in my view otherwise established.

I am of opinion that the reasoning in Armand applies with even greater force to a proceeding such as the present, a proceeding involving rate determination. Section 73 of the Act gives to the Commission a broad discretion to award costs and, in my view, if it can be said of an award that it would not constitute error if made by a taxing master in civil litigation, then it really cannot be seriously argued that it would constitute error of law in a rate proceeding.

The costs awarded NAPO and others were not, of course, limited to costs in respect of the legal services of Mr. Roman. They covered disburse ments as well. The application for costs was sub mitted to the Commission by Mr. Roman on behalf of his clients, NAPO and others. It was supported by an affidavit of disbursements. I gather from the affidavit that most, if not all, of the payments were made by PIAC. Nonetheless it would seem to me that it does not necessarily follow that, for taxing purposes, the costs were not the costs of NAPO and others. NAPO and others were interveners on the record. It would not, there fore, as I see it, be legal error to award them costs in respect of disbursements, absent proof that they were not liable, even contingently, for the expenses which were incurred in their behalf in the proceed-

ings. Once again, I would adopt the words of Chief Justice Anglin in the Armand case: "The evidence is not very definite or very precise."

On the view I have taken, it is not necessary to deal with another possibility. It is, however, in my opinion, arguable that the Commission could award costs to an intervener where expenses are incurred on his behalf, as intervener, in order to lead evidence and to submit arguments helpful to the Commission even if the intervener were not under a strict contractual or other legal obligation to compensate for these expenses; such an award might be supportable, at least where, as here, there was an understanding that, if costs were awarded to NAPO and others, they would be used to compensate PIAC; it is arguable that the Commis sion might be justified in awarding costs to NAPO and others where, as a practical matter, there was every likelihood that the costs would be used for expenses incurred.

I need hardly add that the appellant failed to show that, in awarding costs to CAC and to NAPO and others, the Commission acted without jurisdiction.

I would dismiss the appeal. In accordance with subsection 64(5) of the National Transportation Act, I would certify to the Commission the opinion of this Court that it was not, in the circumstances of this case, error in law to award costs to CAC and to NAPO and others; and that, in dismissing the appeal to it from the taxation order, the Com mission did not act without jurisdiction.

KELLY D.J.: I concur.

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