85-A-314
New Brunswick Electric Power Commission
(Applicant)
v.
Maritime Electric Company Limited and National
Energy Board (Respondents)
Court of Appeal, Mahoney, Ryan and Stone JJ.—
Ottawa, April 17, 18 and June 7, 1985.
Jurisdiction — Federal Court — Appeal Division — Motion
to stay execution of Board order pending disposition of appeal
— Express, inherent or implied jurisdiction — S. 50(1)(b)
Federal Court Act authorizing stay of proceedings — Pro
ceedings not limited to those before Court of Appeal — Since
order final and conclusive, not constituting "proceedings"
within meaning of s. 50(1)(b) — Inherent jurisdiction theory
rejected — Jurisdiction of statutory court, such as Federal
Court, found in language used by Parliament to confer juris
diction — Court possessing implied jurisdiction to stay execu
tion of order where, pending appeal, operation of order render
ing appeal nugatory — Operation of order, while resulting in
loss of revenue to applicant, not rendering appeal nugatory —
Application dismissed — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, ss. 18, 28, 29, 30(1), 38(1), 49, 50(1), 54(2), 57 —
National Energy Board Act, R.S.C. 1970, c. N-6, ss. 15 (as
am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 64), 18(1) (as am.
idem, s. 65), 19(1) — Federal Court Rules, C.R.C., c. 663, R.
1909 — Rules of the Supreme Court of Canada, C.R.C., c.
1512, R. 126.
The applicant, New Brunswick Electric Power Commission,
was granted leave to appeal the National Energy Board's
decision that the offer made by the Commission to Maritime
Electric Company Limited respecting the sale of interruptible
energy did not comply with the export licences held by the
Commission. The applicant moves for a stay of execution of the
Board's order pending disposition of the appeal. The issues are
whether the Court has jurisdiction to grant the stay and, if the
answer be in the affirmative, whether the stay should be
granted. The applicant bases its argument supporting jurisdic
tion on three alternative grounds: that the Court has express
jurisdiction, that jurisdiction is inherent or that it may be
implied.
Held, the application should be dismissed.
Express Jurisdiction
The applicant's submission is based on paragraph 50(1)(b) of
the Federal Court Act (the "Act") which prescribes that
"proceedings be stayed" in the interest of justice. It is also
founded on the Supreme Court of Canada decision in Labatt
Breweries of Canada Ltd. v. Attorney General of Canada,
[1980] 1 S.C.R. 594 wherein the Court rejected a contention
that its former Rule 126 authorizing a stay of proceedings
related only to its own judgments or orders and not to those of
another court.
The general approach of this Court on the issue has been that
staying of proceedings of tribunals other than of the Court
itself exceeds the powers conferred on it by subsection 50(1) of
the Act.
Paragraph 50(1)(b) of the Act, unlike Rule 126, does not
speak in terms of staying "execution" of "a judgment or order".
It authorizes the Court to "stay proceedings". Those proceed
ings are not limited to proceedings "before the Court". The
omission of those words from section 50 lends some support to
the argument that by "proceedings", Parliament intended to
confer powers, in appropriate circumstances, to stay proceed
ings in addition to those pending in the Court itself.
The question remains whether what is sought to be stayed
constituted "proceedings". The Board has disposed of the
matter and nothing remains for it to do. No new proceedings
are contemplated for enforcement of the order. Only compli
ance with the formalities of section 15 of the National Energy
Board Act is required. Moreover, Parliament has made it clear
in subsection 19(1) of that statute that subject to its other
provisions, the order is "final and conclusive". Since the order
under appeal cannot be regarded as "proceedings" in progress
before the Board, the Court is not authorized under paragraph
50(1)(b) to stay its execution.
Inherent Jurisdiction
The applicant's contention, that the Supreme Court of
Canada decision in Attorney General of Canada et al. v. Law
Society of British Columbia et al., [1982] 2 S.C.R. 307 stands
for the proposition that the Court has inherent jurisdiction to
grant the relief sought, could not be accepted. The reading of
the Supreme Court judgment as a whole does not support such
a contention. As clearly stated by Estey J. the dispute therein
concerned only the jurisdiction of a provincial superior court.
The Federal Court is a statutory court, the jurisdiction of which
to determine disputes must be found in the language used by
Parliament to confer jurisdiction.
Implied Jurisdiction
Subsection 18(1) of the National Energy Board Act entitles
the applicant to appeal against the order of the Board. The
jurisdiction of the Court to determine such an appeal is found
in subsection 30(1) of the Act. There is merit to the applicant's
argument that as a result of those provisions, Parliament must
have intended that this Court be empowered to stay execution
of an order under appeal so as to effectively exercise its
appellate jurisdiction. The words of Laskin C.J. in the Labatt
Breweries case to the effect that notwithstanding Rule 126, the
Court is not powerless to prevent proceedings pending before it
from being aborted, apply with equal force in this case. This
Court possesses implied jurisdiction to grant a stay where,
pending an appeal, operation of the order appealed from would
render the appeal nugatory.
Under section 29 of the Act, where provision is expressly
made in an Act for an appeal (as is the case with section 18 of
the National Energy Board Act), the order appealed from is
not to be "otherwise dealt with except to the extent and in the
manner provided for in that Act". It is contended that those
words bar this Court from granting the application. That
contention overlooks a vital portion of section 29. The entire
context of the section must be considered in interpreting those
words and the section as a whole must be viewed in light of the
statute read as a whole. Jurisdiction conferred in the Trial
Division under section 18 and on this Court under subsection
28(1) of the Act is not to be invoked when an appeal of the
order is taken pursuant to a federal statute providing for same.
The Court did not view section 29 as a bar to staying execution
of an order under appeal in appropriate circumstances.
Exercise of Jurisdiction
The Court was not persuaded that the particular circum
stances herein favoured a stay. While operation of the order
pending the appeal will result at the very least in a temporary
loss of revenue to the applicant, it would not as such render the
appeal nugatory. The Court could render an effective result in
the matter either by upholding the applicant's claim to sell
economy energy at a price in excess of that permitted by the
Board in its order, or by dismissing it, with the result that sale
of the energy at the price required by the Board would
continue.
The Court furthermore declined to grant the application on
the ground of the balance of convenience test. It is evident that
both the applicant and MECL would be inconvenienced by a
stay or by the continued operation of the order. The Court
found that this was not a case where the balance of convenience
favoured preservation of the status quo.
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
Minister of Employment and Immigration Canada v.
Rodrigues, [1979] 2 F.C. 197 (C.A.).
DISTINGUISHED:
Lariveau v. Minister of Manpower and Immigration,
[1971] F.C. 390 (C.A.); Attorney General of Canada et
al. v. Law Society of British Columbia et al., [1982] 2
S.C.R. 307.
CONSIDERED:
Labatt Breweries of Canada Ltd. v. Attorney General of
Canada, [1980] 1 S.C.R. 594; National Bank of Canada
v. Granda (1985), 60 N.R. 201 (F.C.A.).
REFERRED TO:
Nauss v. International Longshoremen's Association,
Local 269, [ 1982] 1 F.C. 114 (C.A.); Union des employés
de commerce, local 503 v. Purolator Courrier Ltée,
[1983] 2 F.C. 344; 53 N.R. 330 (C.A.); General Aviation
Services Ltd. v. Canada Labour Relations Board, order
dated August 9, 1982, Federal Court of Appeal,
A-762-82, not reported; Re Dylex Ltd. and Amalgamat
ed Clothing & Textile Workers Union Toronto Joint
Board et al. (1977), 17 O.R. (2d) 448 (H.C.); Wells
Fargo Armcar, Inc. v. Ontario Labour Relations Board
et al. (1981), 34 O.R. (2d) 99 (H.C.).
COUNSEL:
Ian Blue, Q.C. and Paul Creghan, Q.C. for
applicant.
William G. Lea for respondent Maritime
Electric Company Limited.
Fred H. Lamar, Q.C. and Alan Macdonald
for respondent National Energy Board.
John F. Funnell, Q.C. for Manitoba Hydro.
Judith M. Haldemann for Minister of Energy
and Forestry for the Province of Prince
Edward Island.
Richard Burns for Attorney General for the
Province of New Brunswick.
SOLICITORS:
Cassels, Brock & Blackwell, Toronto, for
applicant.
Campbell, Lea, Cheverie & Michael, Char-
lottetown, for respondent Maritime Electric
Company Limited.
National Energy Board, Ottawa, appearing
on its own behalf.
Manitoba Hydro, Winnipeg, appearing on its
own behalf.
Attorney General for the Province of Prince
Edward Island, Charlottetown, for Minister
of Energy and Forestry for the Province of
Prince Edward Island.
Attorney General for the Province of New
Brunswick, Fredericton, appearing on behalf
of the Province of New Brunswick.
The following are the reasons for judgment
rendered in English by
STONE J.: This application is to stay execution
of an order of the respondent Board.
The applicant generates electrical power by
various means at its facilities in the Province of
New Brunswick. Part of this power is sold under
interconnecting agreements to utilities in neigh
bouring provinces as well as in the State of Maine.
It holds licences from the Board for the purpose.
Power that is sold to another facility in order to
effect a saving in generating cost is known as
"economy energy". When it is sold under a supply
agreement which permits the supplier to curtail or
cease delivery under defined circumstances it is
known as "interruptible energy". The respondent
Maritime Electric Company Limited ("MECL")
distributes power to its customers in the Province
of Prince Edward Island. It is a party to an
interconnecting agreement with the applicant by
which, inter alia, it is supplied economy energy
according to a pricing formula therein contained.
In March of 1982 the applicant was successful
in having its interruptible energy export licensing
arrangements changed by the Board. The new
arrangements are contained in licences EL-140,
EL-143 and EL-145. A revised pricing provision
appears in each licence as condition 6(b):
6. The Licensee shall not export energy hereunder
(b) without first offering such energy, including any part
thereof, to economically accessible Canadian markets, on terms
not less favourable to a Canadian purchaser, after any appro
priate adjustments have been made for differences in the cost of
delivery, than the terms on which the export would be made.
Subsequently, on January 21, 1983 the applicant
entered into a contract with Central Maine Power
Company for the sale of interruptible energy at a
monthly price to be negotiated. Upon agreeing to
that price the applicant becomes obliged to supply
the power after satisfying its own firm loads but
before providing any economy energy to adjacent
facilities. This agreement was approved by the
Board on August 4, 1983 as interruptible energy
and the licensing arrangements were amended to
incorporate it. A similar agreement was entered
into by the applicant with Bangor Hydro-Electric
Company in April of 1984.
In November of 1983 the applicant made alter
native offers to MECL for the sale of interruptible
energy. In consequence of its claim that these
offers did not conform to the requirements of
condition 6(b), MECL applied to the Board for an
order directing the applicant to conform to the
condition as interpreted by it and, in the alterna
tive, for an amendment of the licences in line with
that interpretation. It contended that condition
6(b) entitled it to be offered the price resulting
from a pricing formula contained in the intercon
necting agreement between the applicant and Cen
tral Maine Power Company. The applicant
claimed that the requirements of the condition
were met when it offered MECL that pricing
formula even though it would result in a higher
price to MECL than that paid by Central Maine
Power Company. It cross-applied for amendment
of the licences in line with its own interpretation of
condition 6(b).
A hearing of the applications was held in 1984.
By its order of January 23, 1985 the Board
ordered (in part) as follows:
1. NB Power shall, within 15 days of receipt by it of this Order
and the Reasons for Decision dated January 1985, offer to
Maritime Electric and to every other economically accessible
Canadian utility, the energy being exported to Central Maine
Power Company under the Power Purchase Agreement dated
21 January 1983 and to the Bangor Hydro-Electric Company
under the agreement dated 27 April 1984, and under any other
term agreement for the export of interruptible energy under
Licences EL-140, EL-143 and EL-145, on terms that comply
with the requirements set out in Section 4.2.4 of the Reasons
for Decision dated January 1985.
In point of fact, the Board's reasons for decision
are dated February 20, 1985.
Two applications were brought in this Court in
consequence of the order. By the first the applicant
requested leave to appeal that order to this Court
pursuant to subsection 18 (1) of the National
Energy Board Act, R.S.C. 1970, c. N-6 [as am. by
R.S.C. 1970 (2nd Supp.), c. 10, s. 65]. After
hearing counsel for both parties and for the inter-
venors, we granted leave on April 18, 1985 in the
following terms:
Pursuant to subsection 18(1) of the National Energy Board
Act, leave is granted to New Brunswick Electric Power Com
mission to appeal to this Court in respect of the National
Energy Board's order No. MO-9-85 and its related decision
issued February 20, 1985, on the following grounds:
1. that the National Energy Board erred in law in its interpre
tation of condition 6(b) of licenses EL-140, EL-143 and
EL-145;
2. that the National Energy Board erred in law in holding that
the offer, dated November 7, 1983, by New Brunswick Electric
Power Commission to Maritime Electric Company Limited, did
not comply with the said condition 6(b);
3. that the National Energy Board exceeded its jurisdiction by
specifying the contractual terms on which New Brunswick
Electric Power Commission is required to offer power to Mari
time Electric Company Limited in an interprovincial electricity
exchange and, in the alternative, by thereby over-riding the
subsisting contract between the said parties; and
4. that the National Energy Board exceeded its jurisdiction by
interpreting condition 6(b) of the New Brunswick Electric
Power Commission licenses differently from its prior and con
temporaneous interpretation of the same condition in licenses
held by others.
The second application is for a stay in the execu
tion of that order pending disposition of the
appeal. It raises two separate questions. First, does
the Court have jurisdiction to grant a stay?
Secondly, if jurisdiction exists should a stay be
granted?
JURISDICTION
The applicant bases its case for the existence of
jurisdiction on three alternative grounds. It says
that jurisdiction is expressly conferred by subsec
tion 50(1) of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10] (the "Act"), or that it is
inherent or, finally, that it may be implied. Each
argument was developed at length in light of the
decided cases and requires separate consideration.
Express Jurisdiction
The argument that express jurisdiction exists is
found upon the language of paragraph (b), subsec
tion 50(1) of the Act and the decision of the
Supreme Court of Canada in Labatt Breweries of
Canada Ltd. v. Attorney General of Canada,
[1980] 1 S.C.R. 594. That subsection reads:
50. (1) The Court may, in its discretion, stay proceedings in
any cause or matter,
(a) on the ground that the claim is being proceeded with in
another Court or jurisdiction; or
(b) where for any other reason it is in the interest of justice
that the proceedings be stayed.
The applicant contends that we should review our
earlier decisions in the light of the Labatt Brewer
ies case. I propose to examine those decisions at
this point before discussing that case.
The earliest of these decisions is Lariveau v.
Minister of Manpower and Immigration, [19711
F.C. 390 (C.A.). There the applicant was the
subject of a deportation order made and confirmed
pursuant to the Immigration Appeal Board Act,
R.S.C. 1970, c. I-3 as amended [now repealed S.C.
1976-77, c. 52, s. 128]. He applied for an extension
of time within which to seek leave to appeal to this
Court from that order as well as for a stay of its
execution. His argument for jurisdiction was based
on Rule 5 of the Federal Court Rules [C.R.C., c.
663], the so-called "gap" rule, which he claimed
empowered the Court to apply powers conferred
upon the Quebec Court of Appeal by the Civil
Code of that Province as a basis for staying the
execution of the order under appeal. The Court
found those provisions inapplicable. In the course
of his judgment Mr. Justice Pratte stated on
behalf of the majority (at page 394):
There is, however, a much more fundamental reason for
denying the motion before us. In fact, what the appellant is
asking the Court to do is to modify the effect of a decision
delivered in due form by the Immigration Appeal Board, before
he has even appealed from this decision or requested leave to do
so. It seems to me that the Court clearly does not have the
power which appellant is asking it to exercise.
In Minister of Employment and Immigration
Canada v. Rodrigues, [ 1979] 2 F.C. 197 (C.A.)
the Court reversed a decision of the Trial Division
which had stayed all proceedings relating to an
inquiry being conducted pursuant to the Immigra
tion Act, R.S.C. 1970, c. I-2 on the basis that a
discretionary power to do so had been conferred by
paragraph 50(1)(b). In holding that jurisdiction to
stay the proceedings had not been conferred the
Court expressed the view (at page 199) that
section 50 "allows the Court to stay proceedings
which are in progress in the Court itself; it does
not allow the Court to stay proceedings in progress
before some other tribunal."
This Court has also held that the Trial Division
has no jurisdiction to stay an order of the Canada
Labour Relations Board pending the determina
tion of an application made to this Court to review
the order pursuant to section 28 of the Act (Nauss
v. International Longshoremen's Association,
Local 269, [1982] 1 F.C. 114 (C.A.), Union des
employés de commerce, local 503 v. Purolator
Courrier Ltée, [1983] 2 F.C. 344; 53 N.R. 330
(C.A.)). Additionally, in General Aviation Ser
vices Ltd. v. Canada Labour Relations Board
(Court File No. A-762-82, August 9, 1982) it held
that this Court was without jurisdiction to stay an
order made by that Board pending its review pur
suant to section 28 of the Act. The Court file
indicates that the application was dismissed with
out detailed reasons.
I agree that each of these decisions is distin
guishable from this case. At the same time it
seems to me that the general approach has been
that staying of proceedings of tribunals other than
of the Court itself is beyond the reach of the
powers conferred by subsection 50(1) of the Act.
Nevertheless the applicant correctly points out
that the Lariveau and Rodrigues cases were decid
ed prior to that of Labatt Breweries and that in
none of the subsequent decisions was that case
considered or, at all events, that it is not referred
to in the reasons for judgment. While it did not
involve the interpretation of paragraph 50(1)(b) of
the Act the assertion is made that the reasoning
contained in that case is applicable and that we
should apply it. Its relevance must now be
considered.
In that case the appellant questioned the validity
of certain regulations under the Food and Drugs
Act, R.S.C. 1970, c. F-27 upon which the respond
ent relied as authorizing the seizure of a brewery
product whose label did not conform to the
requirements of the Regulations. The Trial Divi
sion granted relief but its decision was reversed by
this Court which also granted leave to appeal to
the Supreme Court of Canada because, in its view,
the issues were important. The Department of
Consumer and Corporate Affairs proposed to act
upon the judgment of this Court even while the
appeal was pending in the Supreme Court of
Canada. An application to this Court for a stay of
further proceedings by the respondent and action
by the Department was rejected on the ground
that there was nothing to be stayed and, accord
ingly, that it had no jurisdiction to make an order
against either the respondent or the Department.
After filing its notice of appeal to the Supreme
Court of Canada the appellant applied to that
Court for an order, inter alia, to have further
proceedings or action against it stayed pending the
decision of that Court on the merits of the appeal.
The Supreme Court of Canada concluded that it
had jurisdiction under its Rule 126 [Rules of the
Supreme Court of Canada, C.R.C., c. 1512] to
grant the stay. That Rule read:
RULE 126. Any party against whom judgment has been
given, or an order made; may apply to the Court or a judge for
a stay of execution or other relief against such a judgment or
order, and the Court or judge may give such relief and upon
such terms as may be just.
In so concluding the Court rejected a contention
that the Rule related only to its own judgments or
orders and not to judgments or orders of another
court. It also rejected the contention that staying
of the effect of the order under appeal was not
within the scope of the Rule. Laskin C.J. speaking
for the Court, dealt with these contentions as
follows (at page 600):
It was contended that the Rule relates to judgments or orders
of this Court and not to judgments or orders of the Court
appealed from. Its formulation appears to me to be inconsistent
with such a limitation. Nor do I think that the position of the
respondent that there is no judgment against the appellant to be
stayed is a tenable one. Even if it be so, there is certainly an
order against the appellant. Moreover, I do not think that the
words of Rule 126, authorizing this Court to grant relief
against an adverse order, should be read so narrowly as to
invite only intervention directly against the order and not
against its effect while an appeal against it is pending in this
Court. I am of the opinion, therefore, that the appellant is
entitled to apply for interlocutory relief against the operation of
the order dismissing its declaratory action, and that this Court
may grant relief on such terms as may be just.
That case, of course, turned upon the interpreta
tion of Rule 126 as it then stood and the Supreme
Court of Canada decided that the Rule applied as
well to a stay in the execution of an order of the
Trial Division of this Court as to an order or
judgment of the Supreme Court itself. That being
so it found itself able to stay execution of the order
(and of its effect) pursuant to the provisions of
that Rule. A similar rule may be found in Rule
1909 of the Federal Court Rules.
Subsection 50(1) of the Act, unlike Rule 126,
does not speak in terms of staying "execution" of
"a judgment or order". It authorizes the Court to
"stay proceedings in any cause or matter". We
must decide the point in issue on the basis of the
language actually used by Parliament in framing
that section. What then did Parliament intend
when it empowered the Court to "stay proceed
ings"? Did it intend to include stay of "proceed-
ings" in addition to those pending in the Court?
Rule 1909. A party against whom a judgment has been
given or an order made may apply to the Court for a stay of
execution of the judgment or order or other relief against such
judgment or order, and the Court may by order grant such
relief, and on such terms, as it thinks just.
As this Rule was not expressly invoked or even referred to in
argument as a possible basis for staying the order appealed
from, I would refrain from expressing a view on the question
whether, in light of the interpretation given a similarly-worded
rule in Labatt Breweries, it might confer express jurisdiction to
stay that order. Indeed, were I not of the view expressed later in
these reasons that the balance of convenience does not support
a stay, I would have found it necessary to call upon the parties
to deal with this issue before disposing of the application.
And, if it did, is the Board's order "proceedings"?
The applicant argues that just as the Supreme
Court of Canada interpreted Rule 126 to include
an order of a court in addition to its own so also
should we interpret subsection 50(1) to include
proceedings of a tribunal in addition to those of
the Court itself. MECL contends that even if
section 50 applies to proceedings before the Board
there are not any longer "proceedings" before it.
Subsection 50(1) of the Act is not on its face
limited to proceedings "before the Court". 2 The
inclusion of those words or words of like effect
would, I think, have removed any doubt as to the
intention of Parliament. Omission of them from
subsection 50(1) lends some support to an argu
ment that by "proceedings" Parliament intended
to confer power, in appropriate circumstances, to
stay proceedings in addition to those pending in
the Court itself. It is unnecessary here to carry the
argument further because, as I see it, the applicant
has a further hurdle to surmount. If it fails in that,
then a result based upon the existence of express
jurisdiction must also fail.
That hurdle is whether what is sought to be
stayed may properly be regarded as "proceedings".
Only the Board's order is in issue. It has heard the
application and has spoken. It has determined the
matter in terms of its order. In short it has dis
posed of it so that nothing remains for it to do.
MECL may enjoy the fruits of its victory without
further action on its part for no new proceedings
are contemplated for enforcement of the order.
Only simple compliance with the formalities of
2 See e.g. section 49 of the Act where those words appear. In
sections 38(1), 54(2) and 57 thereof the words "in the Court"
qualifies the word "proceedings". Subsection 28(1) of the Act
conferring review jurisdiction on this Court speaks of a decision
or order "made by or in the course of proceedings before a
federal board, commission or other tribunal" and section 29
speaks in similar terms in case of an appeal from such a
decision or order. (My emphasis.)
section 15 of the National Energy Board Act 3 [as
am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 64] is
required. Moreover, Parliament has made it clear
in subsection 19(1) of the statute that subject to its
other provisions the order is "final and conclu
sive". As, in my view, the order under appeal is not
"proceedings" in progress before the Board, we are
not authorized by paragraph 50(1)(b) of the Act
to stay its execution.
Inherent Jurisdiction
The contention that the Court has inherent
power to stay the Board's order can be dealt with
shortly. The Federal Court, unlike a superior court
of a province, is a statutory court. Its jurisdiction
to hear and determine disputes must therefore be
found in the language used by Parliament in con
ferring jurisdiction. The applicant's assertion that
inherent jurisdiction exists is based upon certain
observations made in the course of a further deci
sion of the Supreme Court of Canada in Attorney
General of Canada et al. v. Law Society of British
Columbia et al., [ 1982] 2 S.C.R. 307. One aspect
of that case concerned the jurisdiction of the
Supreme Court of British Columbia to declare
that certain provisions of the Combines Investiga
tion Act, R.S.C. 1970, c. C-23 were either inappli
cable or were ultra vires. In deciding that the
Court had jurisdiction to grant the relief, Estey J.
(for the Court) stated (at page 330):
Courts having a competence to make an order in the first
instance have long been found competent to make such addi
tional orders or to impose terms or conditions in order to make
3 15. (l) Any decision or order made by the Board may, for
the purpose of enforcement thereof, be made a rule, order or
decree of the Federal Court of Canada or of any superior court
of any province of Canada and shall be enforced in like manner
as any rule, order or decree of such court.
(2) To make a decision or order of the Board a rule, order or
decree of the Federal Court of Canada or a superior court, the
usual practice and procedure of the court in such matters may
be followed, or in lieu thereof the Secretary may file with the
Registry of the Federal Court a certified copy of the decision or
order under the seal of the Board and thereupon the decision or
order becomes a rule, order or decree of the court.
the primary order effective. Similarly courts with jurisdiction to
undertake a particular lis have had the authority to maintain
the status quo in the interim pending disposition of all claims
arising even though the preservation order, viewed independent
ly, may be beyond the jurisdiction of the court.
Although the language used by the learned
Judge might possibly suggest that the Federal
Court, too, was within his contemplation I am
doubtful from a reading of his judgment as a
whole that it was. As was made clear by Estey J.
himself (at pages 326-327) the dispute concerned
only the jurisdiction of a provincial superior court:
The provincial superior courts have always occupied a position
of prime importance in the constitutional pattern of this coun
try. They are the descendants of the Royal Courts of Justice as
courts of general jurisdiction.
I cannot accept the applicant's contention that the
case stands for the proposition that this Court has
inherent jurisdiction to grant the relief sought. No
other basis was suggested for the existence of such
jurisdiction.
Implied Jurisdiction
I turn now to the final argument in favour of
jurisdiction. It may be stated quite simply. The
right of the applicant to appeal against the order
of the Board is conferred by subsection 18(1) of
the National Energy Board Act:
18. (1) An appeal lies from a decision or order of the Board
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 decision or order sought to be appealed from
or within such further time as that Court or a judge thereof
under special circumstances allows.
The jurisdiction of this Court to hear and deter
mine the appeal is found in subsection 30(1) of the
Act:
30. (1) The Court of Appeal has exclusive original jurisdic
tion to hear and determine all appeals that, under any Act of
the Parliament of Canada except the Income Tax Act, the
Estate Tax Act and the Canadian Citizenship Act, may be
taken to the Federal Court.
It is said that because Parliament has so pro
vided it must also have intended that this Court be
able to stay execution of the order under appeal so
as to effectively exercise its appellate jurisdiction.
In my view there is merit to this contention. It is a
concept that was commented upon in a recent
judgment of this Court in National Bank of
Canada v. Granda (1985), 60 N.R. 201, in the
context of a decision then pending review pursuant
section 28 of the Act. Mr. Justice Pratte made the
following observations on his own behalf (at page
202) in the course of his reasons:
What I have just said should not be taken to mean that the
Court of Appeal has, with respect to decisions of federal
tribunals which are the subject of applications to set aside
under s. 28, the same power to order stays of execution as the
Trial Division with respect to decisions of the court.
The only powers which the court has regarding decisions
which are the subject of applications to set aside under s. 28 are
those conferred on it by ss. 28 and 52(d) of the Federal Court
Act. It is clear that those provisions do not expressly confer on
the court a power to stay the execution of decisions which it is
asked to review. However, it could be argued that Parliament
has conferred this power on the court by implication, in so far
as the existence and exercise of the power are necessary for the
court to fully exercise the jurisdiction expressly conferred on it
by s. 28. In my opinion, this is the only possible source of any
power the Court of Appeal may have to order a stay in the
execution of a decision which is the subject of an appeal under
s. 28. It follows logically that, if the court can order a stay in
the execution of such decisions, it can only do so in the rare
cases in which the exercise of this power is necessary to allow it
to exercise the jurisdiction conferred on it by s. 28.
These observations bring into focus the absurdi
ty that could result if, pending an appeal, opera
tion of the order appealed from rendered it nuga-
tory. Our appellate mandate would then become
futile and be reduced to mere words lacking in
practical substance. The right of a party to an
"appeal" would exist only on paper for, in reality,
there would be no "appeal" to be heard, or to be
won or lost. The appeal process would be stifled. It
would not, as it should, hold out the possibility of
redress to a party invoking it. This Court could
not, as was intended, render an effective result. I
hardly think Parliament intended that we be pow
erless to prevent such a state of affairs. In my view
the reasoning of Laskin C.J. in the Labatt Brewe
ries case (at page 601) applies with equal force to
the ability of this Court to prevent continued
operation of an order under appeal from rendering
the appeal nugatory:
Although I am of the opinion that Rule 126 applies to
support the making of an order of the kind here agreed to by
counsel for the parties, I would not wish it to be taken that this
Court is otherwise without power to prevent proceedings pend
ing before it from being aborted by unilateral action by one of
the parties pending final determination of an appeal.
I have concluded that this Court does possess
implied jurisdiction to grant a stay if the operation
of the Board's order pending the appeal would
render the appeal nugatory.
Counsel for the Minister of Energy and Forestry
for the Province of Prince Edward Island argues
that section 29 of the Act denies this Court a
power to stay the order. It reads:
29. Notwithstanding sections 18 and 28, where provision is
expressly made by an Act of the Parliament of Canada for an
appeal as such to the Court, to the Supreme Court, to the
Governor in Council or to the Treasury Board from a decision
or order of a federal board, commission or other tribunal made
by or in the course of proceedings before that board, commis
sion or tribunal, that decision or order is not, to the extent that
it may be so appealed, subject to review or to be restrained,
prohibited, removed, set aside or otherwise dealt with, except to
the extent and in the manner provided for in that Act.
As provision for the pending appeal is made in
section 18 of the National Energy Board Act it is
argued that the order below is not to be "otherwise
dealt with, except to the extent and in the manner
provided for in that Act". Those words, it is con
tended, bar this Court from granting the applica
tion. Only the Board, it is said, can grant a stay of
the order and as it has refused to do so "that ends
the matter".
With respect, I think the argument overlooks a
vital portion of section 29. The words upon which
particular reliance is made appear in a given con
text which provides that to the extent that the
decision or order may be appealed it is not "sub-
ject to review or to be restrained, prohibited,
removed, set aside or otherwise dealt with, except
to the extent and in the manner provided for in
that Act". The entire context must be considered
in interpreting the words "or otherwise dealt with"
and, indeed, the section as a whole must be viewed
in light of the statute read as a whole. When that
is done the purpose of section 29 is made clear.
Jurisdiction conferred on the Trial Division under
section 18 and on this Court under subsection
28(1) of the Act is not to be invoked when an
appeal of the decision or order is taken pursuant to
a federal statute providing for same. I would not
view section 29 as a bar to this Court staying
execution of an order under appeal in appropriate
circumstances.
EXERCISE OF JURISDICTION
We are asked to exercise our discretion in
favour of the applicant either if we find that the
balance of convenience favours preservation of the
status quo pending disposition of the appeal or
that refusal to grant a stay would render the
appeal nugatory. I propose to deal with these two
tests separately.
The balance of convenience is, of course, among
the criteria applied in deciding whether an inter
locutory injunction should be granted and the
applicant submits that the same criteria should be
applied here (Re Dylex Ltd. and Amalgamated
Clothing & Textile Workers Union Toronto Joint
Board et al. (1977), 17 O.R. (2d) 448 (H.C.);
Wells Fargo Armcar, Inc. v. Ontario Labour
Relations Board et al. (1981), 34 O.R. (2d) 99
(H.C.)). MECL argues that the balance of conve
nience favours neither side. As the point was
pressed in argument I propose to deal with it but
without deciding upon its appropriateness as a test
in a case of this kind.
The applicant asserts that revenues lost by oper
ation of the order are required for ordinary opera
tions and that current rates were established in
light of that requirement. Those rates were based
upon an assumption of success before the Board.
MECL points out that a stay of the order would
mean an increase in the costs of power for itself
and for its customers. In the course of submissions
the applicant undertook to compensate MECL for
this increase in the event that the appeal be dis
missed and, at the same time, MECL undertook to
compensate the applicant for lost revenues in the
event the appeal be successful. It is evident that
both sides would be inconvenienced by a stay or by
the continued operation of the order, the one as
much as the other. In my judgment, this is not a
case where the balance of convenience favours
preservation of the status quo. Accordingly, we
would not be justified in granting the application
on this ground and I would decline to do so.
Although I consider the second test as entirely
appropriate in this case, I am not persuaded that
the particular circumstances favour a stay. While
operation of the order pending the appeal will
result at very least in temporary loss of revenue to
the applicant it would not as such render the
appeal nugatory. The substance of the appeal
would remain very much intact and would hold out
to the applicant the possibility that its claimed
right to sell economy energy at a price in excess of
that permitted by the Board's order would be
upheld. Otherwise, sale of the energy at the price
required by that order would continue. This Court
could render an effective result in the matter. I
must reject this ground for staying the order as, in
my view, refusal to grant it would not render the
appeal nugatory.
For the foregoing reasons I would dismiss this
application with costs.
MAHONEY J.: I agree.
RYAN J.: I agree.
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.