A-790-85
In the matter of the National Energy Board Act
and in the matter of a proposed reference by the
National Energy :card pursuant to subsection
28(4) of the Federal Court Act
INDEXED AS: NATIONAL ENERGY BOARD ACT (CAN.) (RE)
Court of Appeal, Heald, Urie and Ryan JJ.-
Toronto, April 30 and May 1; Ottawa, June 24,
1986.
Energy - Reference to determine jurisdiction of National
Energy Board to award costs in connection with public hearing
- Act, s. 10(3) not giving express power to award costs
Application of ejusdem generis rule to "other matters"
Such power not "necessary" to exercise of jurisdiction
Discussion of "court costs" v. "intervenor funding" - Cases
cited where doctrine of necessary implication invoked to fill
legislative lacunae distinguished as here no evidence of practi
cal necessity for implying general power to award costs
Expressio unius est exclusio alterius maxim applies - Par
liament intending to limit general power to award costs by
including ss. 29.6, 37 and 75.21, expressly awarding costs in
specific situations - National Energy Board Act, R.S.C.
1970, c. N-6, ss. 10(3), 29.6 (as enacted by S.C. 1980-81-82-
83, c. 80, s. 2), 37 (as am. by R.S.C. 1970 (1st Supp.), c. 27, s.
10; S.C. 1980-81-82-83, c. 80, s. 4), 75.21 (as enacted idem,
s. 5) - Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
28(4) - National Transportation Act, R.S.C. 1970, c. N-17,
ss. 45(3), 73 - Tax Court of Canada Act, S.C. 1980-81-82-
83, c. 158, ss. 13, 18, 20(1) - Dominion Controverted Elec
tions Act, R.S.C. 1970, c. C-28, ss. 40, 72.
Construction of statutes - National Energy Board Act, s.
10(3) giving Board powers of superior court of record concern
ing "other matters" "necessary" for due exercise of jurisdic
tion - Power to award costs not ejusdem generis with specific
powers enumerated - Specific powers characterized as evi
dence gathering - S. 10(3) not conferring express jurisdiction
to award costs - Ss. 29.6, 75.21 and 37 expressly empowering
Board to award costs in specific situations - Expressio unius
est exclusio alterius maxim applies - Parliament limiting
power to award costs to these specific situations - National
Energy Board Act, R.S.C. 1970, c. N-6, ss. 10(3), 29.6 (as
enacted by S.C. 1980-81-82-83, c. 80, s. 2), 37 (as am. by
R.S.C. 1970 (1st Supp.), c. 27, s. 10; S.C. 1980-81-82-83, c.
80, s. 4), 75.21 (as enacted idem, s. 5).
Practice - Costs - National Energy Board - Whether
may award costs re public hearing - Costs of such proceed-
ings different from those awarded by superior court of record
where lis inter partes and clear winner and loser — In litiga
tion, costs follow event — Not always clear winner in regula
tory cases — If tribunal had power to award costs, could order
successful party to pay intervenors' costs — What being
sought is "intervenor funding" rather than costs — Reference
to Hamilton-Wentworth case where difference considered —
Persuasive arguments supporting funding of public interest
intervenors but policy question for Parliament.
This is a reference by the National Energy Board to deter
mine whether it has jurisdiction to award costs in connection
with a public hearing.
It was argued that the Board has jurisdiction to award costs
(1) expressly, pursuant to subsection 10(3) of the Act; (2) by
necessary implication; and (3) because of sections 29.6 and
75.21 of the Act, the purpose of which is to limit an otherwise
full discretion to award costs.
Held, the Board does not have a general jurisdiction to
award costs.
Express jurisdiction to award costs is not conferred on the
Board by subsection 10(3). Subsection 10(3) gives the Board
the powers of a superior court of record with respect to the
attendance of witnesses, the production of documents, the
enforcement of its orders, the entry upon property and "other
matters" "necessary or proper" for the due exercise of its
jurisdiction. The specific provisions of subsection 10(3) may be
characterized as evidence gathering powers. The power to
award costs is not ejusdem generis with such powers. The
primary purpose of an award of costs is not as an instrument of
control over persons and proceedings, but the indemnification
of the successful party. Assuming that the power to award costs
is an "other matter", it is not "necessary" for the exercise of
the Board's jurisdiction. The Board has operated for many
years without awarding costs. Furthermore, the costs here in
question are unlike those customarily awarded by "a superior
court of record". Unlike a lis inter partes, in a regulatory
matter there is not always a clear winner or loser. Furthermore,
when a regulatory tribunal has the discretionary power to
award costs, it is possible that a successful applicant would be
ordered to pay the costs of some of the intervenors. This is an
abrupt departure from the normal rule in superior courts that
costs follow the event. Even if the Board were entitled to
exercise the inherent jurisdiction of a superior court of record
to - award costs, it would be `court costs". The "intervenor
funding" requested on this reference does not meet the criteria
of "court costs" set out in the Hamilton-Wentworth case.
There is no evidence of practical necessity for implying a
general costs power. The Board has operated since 1959 with
out such a power. Also, the Parliament of Canada and the
provincial legislatures have demonstrated their ability in similar
legislation to explicitly confer on regulatory tribunals a general
power to award costs. In the absence of an express statutory
provision conferring the power to award costs, such a power
should not be implied.
The expressio unius est exclusio alterius maxim applies. The
fact that Parliament has expressly conferred the power on the
Board to award costs in specific situations in sections 29.6, 37
and 75.21 strengthens the argument against general jurisdic
tion. Parliament must have intended to limit the power to
award costs only to those specific situations.
Intervenor funding may be desirable as it could encourage
input from concerned parties, which would be of assistance to
tribunals, and could increase public confidence in the regulato
ry process. However, this is a policy question for Parliament to
decide.
CASES JUDICIALLY CONSIDERED
APPLIED:
Bell Canada v. Consumers' Association of Canada et al.,
[1986] 1 S.C.R. 190; (1986), 65 N.R. 1; Hamilton-
Wentworth (Regional Municipality of) and Hamilton-
Wentworth Save the Valley Committee, Inc. et al., Re
(1985), 51 O.R. (2d) 23 (Ont. Div. Ct.).
DISTINGUISHED:
Interprovincial Pipe Line Ltd. v. National Energy Board,
[1978] 1 F.C. 601 (C.A.); Canadian Broadcasting
League (The) v. Canadian Radio-television and Tele
communications Commission, [1983] 1 F.C. 182 (C.A.).
COUNSEL:
Ian Blue, Q.C. and Elizabeth E. May for
Flamborough Residents Against Propane and
David L. Hitchcock.
Harry Dahme for Corporation of the Town
ship of Flamborough and Regional Munici
pality of Hamilton-Wentworth.
John A. Olah for Halton Regional Conserva
tion Authority.
John S. Tyhurst for Consumers Association
of Canada.
John W. Brown, Q.C. and Philippe Lalonde
for Interprovincial Pipe Line Limited.
Barbara A. Mcisaac for Attorney General of
Canada.
Anthony J. Jordan for Independent
Petroleum Association.
C. C. Black for Trans Canada PipeLines.
Loyola Keough for National Energy Board.
SOLICITORS:
Cassels, Brock & Blackwell, Toronto, and
Public Interest Advocacy Centre, Ottawa, for
Flamborough Residents Against Propane and
David L. Hitchcock.
David Estrin, Toronto, for Corporation of the
Township of Flamborough and Regional Mu
nicipality of Hamilton-Wentworth.
Beard, Winter, Gordon, Toronto, for Halton
Regional Conservation Authority.
Consumers Association of Canada, Ottawa,
on its own behalf.
Blake, Cassels & Graydon, Toronto, for
Interprovincial Pipe Line Limited.
Deputy Attorney General of Canada for
Attorney General of Canada.
Code Hunter, Calgary, for Independent
Petroleum Association of Canada.
C. C. Black, Toronto, for Trans Canada
PipeLines.
National Energy Board, Ottawa, on its own
behalf.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a reference by the National
Energy Board (the Board) pursuant to subsection
28(4) of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10], in respect of the following
questions:
1. Does the National Energy Board, in connection with a public
hearing held pursuant to subsections 17(1) and 20(3) of the
National Energy Board Act for the purpose of reviewing a
portion of an order made pursuant to section 49 of the Act,
have the jurisdiction to award costs to one party payable by
another party to the public hearing?
2. If the answer to Question 1 is in the affirmative, does the
National Energy Board, where costs are awarded, have the
jurisdiction to establish a scale of costs or otherwise to fix or to
limit the amount of costs to be paid?
The Order of the Board referring the above
questions to the Court included findings of fact
and other material on which the Board would have
based itself if it were determining the questions
submitted. Those facts in summary form follow.
The reference arises out of motions made respect
ing costs during and following a lengthy hearing
before the Board on an application by Interprovin-
cial Pipe Line Limited (I.P.L.) for an exemption
order in respect of proposed modifications to an
I.P.L. pipeline for the purpose of converting it
from crude oil service to exclusive propane service.
The plan was to transport propane in the line from
the Sarnia area to the vicinity of Westover,
Ontario, where it would be loaded into tank trucks
and rail tank cars for transportation to market.
The proposal involved, inter alfa, the construction
of truck and rail loading facilities. By Order dated
May 4, 1983, the Board exempted, subject to
certain conditions, the facilities applied for from
certain provisions of the National Energy Board
Act [R.S.C. 1970, c. N-6].
In response to the concerns expressed by local
authorities and land owners in the Township of
Flamborough, Ontario, about the proposed loca
tion of the truck and rail loading facilities, the
Board directed that a public hearing be held for
the purpose of reviewing that portion of the May 4
Order approving the location of the loading facili
ties. The hearing commenced at Burlington,
Ontario on August 16, 1983. At that time, the
Corporation of the Township of Flamborough
(Flamborough Township) filed a notice of motion
with the Board raising preliminary questions as to
the Board's jurisdiction. Subsequently, the Region
al Municipality of Hamilton-Wentworth (Hamil-
ton-Wentworth Municipality) made a submission
to the Board that one of the Board members
should disqualify himself from hearing the subject
application on the ground of bias or reasonable
apprehension of bias. On September 8, 1983, the
Board decided that this submission was without
any foundation. Later in September, the Board
ruled against the attack on its jurisdiction. Both of
these decisions were appealed to this Court and
were dismissed (Flamborough v. National Energy
Board, Interprovincial Pipe Line Ltd. and Canada
(1985), 55 N.R. 95 (F.C.A.)) on June 15, 1984.
An application for leave to appeal to the Supreme
Court of Canada was dismissed on December 17,
1984 [ [ 1984] 2 S.C.R vii].
On July 13, 1984, the Board directed that a new
panel of the Board be constituted for the public
hearing which commenced at Burlington on April
22, 1985 before the Board, as newly constituted.
The hearing was held on 34 days and ended at
Ottawa on August 29, 1985. The Board heard the
evidence of many witnesses, including expert wit
nesses, called not only by I.P.L. but by other
parties as well. Some fourteen different entities
were listed as parties to the hearing. Additionally,
many other interested persons made submissions
and written comments to the Board. On final
argument, several parties, and, in particular,
Flamborough Township, Hamilton-Wentworth
Municipality, the Halton Region Conservation
Authority (Halton Conservation) and Flambor-
ough Residents Against Propane Inc. (F.R.A.P.)
asked that the Board make an award of costs,
payable by I.P.L., in their favour. This reference is
a consequence of that request.
At the hearing of the reference before us, coun
sel argued in favour of jurisdiction to award costs
on behalf of F.R.A.P., Flamborough Township,
Hamilton-Wentworth Municipality, Halton Con
servation, and the Consumers' Association of
Canada (C.A.C.). Counsel on behalf of I.P.L., the
Attorney General of Canada, Trans Canada Pipe
Lines Limited (T.C.P.L.) and the Independent
Petroleum Association (I.P.A.) all made submis
sions against such jurisdiction.
Counsel for F.R.A.P. was the first counsel to
make submissions in support of the Board's juris
diction to award costs. His submissions were gen
erally endorsed by counsel for those other parties
who supported the Board's jurisdiction. There
were, however, some additional submissions by the
other supporting counsel. I will discuss these sub
missions later. In the submission of counsel for
F.R.A.P., the Board has jurisdiction to award costs
on three grounds:
1. the Board has express power pursuant to subsection 10(3) of
the Act;
2. the Board has power to award costs by necessary implication;
and
3. the Board has power to award costs because of subsections
29.6 and 75.21 of the Act, the purpose of which is to limit an
otherwise full discretion to award costs.
1. EXPRESS JURISDICTION
Section 10 of the Act reads as follows:
10. (1) The Board is a court of record.
(2) The Board shall have an official seal, which shall be
judicially noticed.
(3) The Board has, with respect to the attendance, swearing
and examination of witnesses, the production and inspection of
documents, the enforcement of its orders, the entry upon and
inspection of property and other matters necessary or proper
for the due exercise of its jurisdiction, all such powers, rights
and privileges as are vested in a superior court of record.
[Emphasis added.]
It is the submission of counsel for F.R.A.P. that
costs are "other matters" which are "necessary or
proper" for the "due exercise" of the Board's
jurisdiction. Applying the ejusdem generis rule, he
submits that the words "other matters" as used in
subsection 10(3) supra, being general words must
be read in light of the particular and specific
words immediately preceding them so as to be
confined to things of the same class or kind as
those specified. In his view, even accepting the
constraints which application of the ejusdem gen-
eris rule places upon the phrase "other matters" as
used in subsection 10(3), costs are within the same
class as the specific subjects mentioned in subsec
tion 10(3), namely the power to subpoena, the
power to compel document production, the right to
enter and inspect and the right to enforce. Counsel
for I.P.L., on the other hand, submits that the
"preceding phrases and specific grants of power
are all of the class or category relating to the
ability of the Board to obtain material, evidence
and information necessary for it to reach reasoned
decisions. These powers are obviously necessary
and proper for the due exercise of the Board's
jurisdiction." Accordingly, in his view, the "mat-
ters" contemplated by subsection 10(3) are
restricted to such additional powers as the Board
requires to obtain all such information and evi
dence as it may require in order to reach a proper
decision. In my view, the characterization by
I.P.L.'s counsel is more accurate than that sug-
gested by counsel for F.R.A.P. The specific provi
sions of subsection 10(3) empower the Board to
compel the production of all relevant evidence,
oral and documentary and to take a view of and
inspect such property as may be necessary for its
decision. Such powers may be characterized as
evidence gathering powers. I do not think of the
power to award costs as being ejusdem generis
with such powers. Counsel for F.R.A.P. sees the
power to award costs as but another example of
the power to control persons and proceedings and,
as such, being ejusdem generis with the specific
powers enumerated in subsection 10(3). While an
award of costs may, undoubtedly, affect persons
and proceedings, I do not view the exercise of that
power as being in the same category as the exer
cise of powers to gather the necessary evidence in a
proceeding. I do not consider that the primary
purpose of an award of costs is as an instrument of
control. The jurisprudence establishes that the
principal purpose of costs is the indemnification of
the successful party in a proceeding. This matter
was thoroughly canvassed and discussed in the
recent decision of the Supreme Court of Canada in
Bell Canada v. Consumers' Association of Canada
et al., [1986] 1 S.C.R. 190; (1986), 65 N.R. 1.
The issue raised in that appeal was whether, in the
exercise of the discretion to award costs conferred
by section 73 of the National Transportation Act
[R.S.C. 1970, e. N-17], the CRTC was bound by
the principle of indemnification as it is applied in
an award of costs by the courts. Section 73 reads
as follows:
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.
At page 207 S.C.R.; at page 21 N.R., Le Dain J.
speaking for the Court concluded as follows:
I would agree that the word "costs" in s. 73 must carry the
same general connotation as legal costs. It cannot be construed
to mean something quite different from or foreign to that
general sense of the word, such as an obligation to contribute to
the administrative costs of a tribunal or the grant of a subsidy
to a participant in proceedings without regard to what may
reasonably be considered to be the expense incurred for such
participation. Thus I am of the opinion that the word "costs"
must carry the general connotation of being for the purpose of
indemnification or compensation. [Emphasis added.]
Dealing now with the second part of this sub
mission, I am likewise not persuaded that the
power to award costs, assuming that it is an "other
matter", is a matter "necessary or proper" for the
due exercise of the Board's jurisdiction. As was
pointed out by some of the counsel opposing the
Board's jurisdiction, the Board has effectively
operated for many years without awarding costs. It
can, therefore, hardly be said that such a power is
"necessary" for the exercise of its jurisdiction. It
might well be argued that the Board would operate
more effectively with that power but such a cir
cumstance does not make such a power necessary
to its exercise of jurisdiction.
In addition to concluding that the power to
award costs falls outside any jurisdiction conferred
upon the Board pursuant to subsection 10(3)
because such a power is not ejusdem generis with
"other matters" and because such a power is not
"necessary or proper" to the exercise of the
Board's jurisdiction, I have the further view that
the kind of costs which arise in proceedings before
this Board are not the kind of costs which are
customarily awarded by "a superior court of
record". In the normal course of events, the Court,
after hearing a lis inter partes adjudicates upon
the various issues before the Court. In the majority
of cases where there is a clear winner and a clear
loser, the Court will award costs to follow the
event, that is to say, the loser will be ordered to
pay the winner's costs. In other cases, where suc
cess is divided, costs may be apportioned between
the parties. However, in regulatory cases, as was
pointed out by counsel, there is not always a clear
winner or a clear loser. Furthermore, when a
regulatory tribunal has the power to award costs,
in its discretion, it is quite possible that a success
ful applicant would be ordered to pay the costs of
some of the intervenors. While in some circum
stances, such an award might be a proper exercise
of the Board's discretion, it is, nevertheless, an
abrupt departure from the normal rule in superior
courts that costs are to follow the event. As was
submitted by counsel for I.P.L., what is actually
being sought by those parties who assert jurisdic
tion is "intervenor funding" rather than costs as
they are awarded in a superior court of record.
The difference between the traditional concept of
"court costs" and "intervenor funding" was care
fully considered and analyzed by the Ontario Divi
sional Court in Hamilton-Wentworth (Regional
Municipality of) and Hamilton-Wentworth Save
the Valley Committee, Inc. et al., Re (1985), 51
O.R. (2d) 23. In that case, a regulatory Board
constituted under the Consolidated Hearings Act
of Ontario [S.O. 1981, c. 20] to consider a request
to construct a new road, made orders in advance of
its hearing, granting two citizen groups opposing
the highway, costs in advance to enable them to
participate in the hearing. The Divisional Court
quashed the orders on the ground that the Board
lacked jurisdiction to make them. The headnote to
the report accurately reflects the Court's reasons
for so deciding and reads as follows [at page 24]:
The board does have jurisdiction to order costs by virtue of the
Consolidated Hearings Act, s.7, but there is nothing in that Act
to suggest that the Legislature intended to grant the joint board
any special powers beyond those traditionally exercised by
courts when granting costs. The characteristics of costs are well
defined as an award to be made in favour of a successful or
deserving litigant payable by the loser at the conclusion of the
proceeding by way of indemnity for allowable expenses and
services incurred relevant to the case or proceeding. As success
or entitlement cannot be determined before the conclusion, the
award must follow the proceeding, and costs are not payable for
the purpose of assuring participation in the proceedings.
Although the word "costs" is used in a statute dealing with an
administrative tribunal, it should be given its normal legal
meaning not extended in the way attempted by the board which
is not to award costs but rather to compel a party to provide
intervenor funding, something the statute does not provide for.
Accordingly, and for the above reasons, I have
the view that express jurisdiction to award costs is
not conferred upon the Board by subsection 10(3)
of the Act.
I said earlier that counsel other than the counsel
for F.R.A.P. made additional submissions in sup
port of the Board's jurisdiction to award costs.
Counsel for Flamborough Township and Hamil-
ton-Wentworth Municipality, as well as counsel
for Halton Conservation submitted that since the
Board is entitled to exercise the inherent jurisdic
tion of a superior court of record and since a
superior court of record in Canada has inherent
jurisdiction in respect of costs, the Board has a like
power. The problem with this submission is that,
even accepting its validity, the Board's jurisdiction
to award costs would be "court costs" in the
traditional sense and not "intervenor funding". In
the Hamilton-Wentworth case cited supra, Hol-
land J. speaking for the Divisional Court of
Ontario, provides an accurate and useful discus
sion as to the normal legal meaning of "costs". He
states at page 32:
The characteristics of costs, developed over many years are:
(1) They are an award to be made in favour of a successful
or deserving litigant, payable by the loser.
(2) Of necessity, the award must await the conclusion of the
proceeding, as success or entitlement cannot be deter
mined before that time.
(3) They are payable by way of indemnity for allowable
expenses and services incurred relevant to the case or
proceeding.
(4) They are not payable for the purpose of assuring partici
pation in the proceedings.
The intervenor funding being asked for on this
reference does not meet the criteria set out in
numbers one and four supra. In my view, those
criteria represent a correct analysis of the neces
sary characteristics of "court costs" and since, in
this case, those criteria are not met, I do not think
a case has been made out for inherent jurisdiction
to provide intervenor funding.
2. JURISDICTION BY NECESSARY IMPLICATION
In the alternative, counsel for F.R.A.P. submit
ted that the powers conferred by an enabling
statute such as the National Energy Board Act
include not only expressly granted powers but also,
by implication, all powers which are practically
necessary for the accomplishment of the object
intended to be secured. In his view, the National
Energy Board, just as much as other tribunals and
courts, needs the practical power to award costs to
control these proceedings. Counsel then gave
examples of instances where this Court has
invoked the doctrine of necessary implication to fill
legislative lacunae. The first decision of this Court
to which he referred was the case of Interprovin-
cial Pipe Line Ltd. v. National Energy Board,
[1978] 1 F.C. 601 (C.A.), at page 608. In that
case, the Board sought to compel a regulated
company to prepare and file a report containing
relevant information concerning its operations in
the U.S.A. The Court decided that while there was
no explicit authority in the statute for the exercise
of such a power, it existed nevertheless by neces
sary implication from the nature of the regulatory
authority that has been conferred on the Board
(per Le Dain J., at page 608). The second decision
referred to was the case of Canadian Broadcasting
League (The) v. Canadian Radio-television and
Telecommunications Commission, [1983] 1 F.C.
182 (C.A.). In that case, the Court imputed juris
diction in the CRTC to regulate cable television
subscriber and installation fees by necessary
implication and in the absence of express authority
in the Broadcasting Act [R.S.C. 1970, c. B-11].
In my view, each of the cases relied on by
F.R.A.P.'s counsel are distinguishable on the basis
that, in both cases, there was evidence of practical
necessity for the exercise of the power to enable
the regulatory body to attain the objects expressly
prescribed by Parliament. In the case at bar there
is no evidence of practical necessity for implying a
general costs power. As noted by counsel for I.P.L.
the Board has, since its inception in 1959, operated
without such a power, held innumerable hearings,
and exercised the jurisdiction conferred upon it
under the statute in a satisfactory manner without
purporting to exercise any alleged jurisdiction in
respect of costs. Accordingly, the rationale for the
invocation of the necessary implication doctrine in
the two cases relied on, is not present in this case.
In my view, there is an additional reason for not
invoking the doctrine of necessary implication in
the present circumstances. That reason has to do
with the fact that the Parliament of Canada and
the provincial legislatures have demonstrated their
ability in various pieces of similar legislation to
explicitly confer on regulatory tribunals a general
power to award costs. Counsel for I.P.L. as well as
the other counsel in opposition to the Board's
jurisdiction to award costs have cited numerous
federal and provincial statutes where a tribunal is
given not only a general power similar to the
power conferred upon the Board pursuant to sub-
section 10(3) but also a specific and separate
power to award costs.' From this I think it possible
to infer that in the absence of an express statutory
provision conferring the power to award costs,
such power should not be implied.
3. SECTIONS 29.6 AND 75.21
Counsel for F.R.A.P. submits that sections 29.6
[as enacted by S.C. 1980-81-82-83, c. 80, s.2] and
75.21 [as enacted idem, s. 5] are consistent with a
full discretion over costs because they limit that
discretion. It is his submission that Parliament
intended that costs in the situations described in
sections 29.6 and 75.21 be handled in the way
those sections require. In his view, those sections
limit a full discretion over costs and are, therefore
consistent with the existence of a full discretion in
respect of costs. Put another way, it is his submis
sion that these sections merely limit the otherwise
unfettered discretion the Board has to award costs.
The National Energy Board Act speaks to the
questions of costs in three specific sections only. In
section 29.6 and subsection 37(4) [as enacted
idem, s. 4], express power to award costs is given
to the Board. In section 75.21, Parliament has
provided for an award of costs in proceedings
before an Arbitration Committee where the Com
mittee has determined compensation for a land
owner whose lands are acquired by a pipeline
company. Those sections read as follows [section
37 was amended by R.S.C. 1970 (1st Supp.), c. 27,
s. 10; S.C. 1980-81-82-83, c. 80, s. 4]:
29.6 The Board may fix such amount as it deems reasonable
in respect of the actual costs reasonably incurred by any person
who made representations to the Board at a public hearing
under subsection 29.2(3) and the amount so fixed shall be
payable forthwith to that person by the company whose pipe
line route is affected by the public hearing.
37. (1) The Board may, upon such terms and conditions as it
considers proper, direct a company to divert or relocate its
pipeline if the Board is of the opinion that the diversion or
relocation is necessary
' See for example: National Transportation Act, R.S.C.
1970, c. N-17, as amended, ss. 45(3) and 73; the Tax Court of
Canada Act, S.C. 1980-81-82-83, c. 158, as amended, ss. 13, 18
and 20(1); Dominion Controverted Elections Act, R.S.C. 1970,
c. C-28, ss. 40 and 72.
(a) to facilitate the construction, reconstruction or relocation
of a highway or a railway or any other work affecting a
public interest, or
(b) to prevent or remove an interference with a drainage
system,
and may direct by whom and to whom the costs of the diversion
or relocation shall be paid.
(2) The Board shall not direct a company to divert or
relocate any section or part of its pipeline unless the procedures
set out in sections 29.1 to 29.5 have been complied with in
respect of the section or part to be diverted or relocated.
(3) For the purposes of ensuring that the procedures set out
in sections 29.1 to 29.5 are complied with, the Board may order
the company to carry out such of those procedures as the
company would be required to carry out if the company had
prepared and submitted to the Board a plan, profile and book
of reference pursuant to subsection 29(1) and those sections
shall apply, with such modifications as the circumstances
require, in respect of any matter related to the carrying out of
those procedures.
(4) The Board may fix such amount as it deems reasonable
in respect of the actual costs reasonably incurred by any person
who made representations to the Board under this section and
may direct by whom and to whom the amount so fixed shall be
paid.
75.21 (1) Where the amount of compensation awarded to a
person by an Arbitration Committee exceeds eighty-five per
cent of the amount of compensation offered by the company,
the company shall pay all legal, appraisal and other costs
determined by the Committee to have been reasonably incurred
by that person in asserting his claim for compensation.
(2) Where the amount of compensation awarded to a person
by an Arbitration Committee does not exceed eighty-five per
cent of the amount of compensation offered by the company,
the legal, appraisal and other costs incurred by that person in
asserting his claim for compensation are in the discretion of the
Committee, and the Committee may direct that the whole or
any part of such costs be paid by the company or by any other
party to the proceedings.
It will be seen that section 29.6 expressly empow
ers the Board to fix costs where the Board holds a
public hearing into any proposed pipeline construc
tion pursuant to section 29.2. Subsection 37(4)
empowers the Board to fix costs where the Board
holds a public hearing into the diversion or reloca
tion of pipelines. As noted supra, section 75.21
empowers an Arbitration Committee to award
costs in respect of certain proceedings before it.
In my view, far from assisting the parties assert
ing jurisdiction, the fact that Parliament has
expressly conferred the power on the Board to
award costs in specific situations, strengthens the
position of those parties who argue against the
Board's general jurisdiction. In my view, the
maxim, expressio unius est exclusio alterius
would apply to this situation. Since this maxim has
been interpreted to mean "Express enactment
shuts the door to further implication" 2 I think it
clear that when Parliament expressly dealt with
costs in this Act in three separate sections dealing
with three distinctly different factual situations,
then it must have intended to limit the power to
award costs only to those specific situations. I
therefore reject the submissions of counsel for
F.R.A.P. with respect to the significance of the
presence of sections 29.6 and 75.21 in the statute.
CONCLUSION
I have concluded, for all of the foregoing rea
sons, that except in the very special circumstances
referred to supra, the Board has no jurisdiction to
award costs and, more particularly, no jurisdiction
to award the more extraordinary form of costs
contemplated by this reference. In my view, au
thority cannot be found either in the express words
of the statute nor by necessary implication pursu
ant to the scheme of the Act. Likewise, I can find
no basis upon which it can be concluded that the
Board has inherent jurisdiction to award the type
of costs being asked for herein.
I am quite aware of the persuasive arguments in
favour of intervenor funding. There is much to be
said for the view that public interest intervenors
and possibly others should be encouraged to par
ticipate in the proceedings before regulatory
boards. One of the obvious benefits from such
participation will be the assistance given to the
tribunal as a result of the informed input from
concerned, interested and informed groups and
individuals. Another benefit may well be a result
ant increase in public confidence in the regulatory
process as conducted before the many boards and
tribunals in existence.
However, on the basis of this statute, and in the
absence of more specific enabling language, it is
2 Craies on Statute Law, 7th ed., p. 259.
not for the Court to determine that the Board has
the necessary jurisdiction, simply because it may
feel that the Board should have such jurisdiction.
This is a policy question to be decided by Parlia
ment. As noted, supra, Parliament has conferred
such specific jurisdiction in the case of some
regulatory boards. In others it has not chosen to do
so. The National Energy Board falls into the latter
category.
Accordingly, I would answer Question Number
One in the negative. Under the circumstances, it is
not necessary to answer Question Number Two.
URIE 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.