T-845-88
National Anti-Poverty Organization and Arthur
Milner (Plaintiffs)
v.
Attorney General of Canada (Defendant)
and
Bell Canada International Inc. and BCE Inc.
(Intervenors)
INDEXED AS: NATIONAL ANTI-POVERTY ORGANIZATION V.
CANADA (ATTORNEY GENERAL)
Trial Division, Muldoon J.—Ottawa, May 25, 26
and June 10, 27, 1988.
Telecommunications — Action for declaration Order in
Council varying part of CRTC decision on Bell Canada rate
proposal dealing with compensation for Bell employees tem
porarily transferred to BC1 null and void — Whether some
transfer costs borne by Bell's subscribers and whether con
stituting cross-subsidy between Bell and BCI — Order in
Council subject to judicial review — Governor in Council
violating Bill of Rights, s. 2(e) as did not give plaintiff NAPO,
opportunity to be heard.
Judicial review — Equitable remedies — Declarations —
Order in Council varying part of CRTC decision on Bell
Canada rate proposal dealing with compensation for Bell
employees temporarily transferred to other company — Order
in Council not matter of public convenience or general policy,
therefore subject to judicial review — In absence of emergency
or security intelligence exigencies, Governor in Council bound
by audi alteram partem rule under Bill of Rights s. 2(e) —
Here, rule infringed as plaintiff NAPO, not given opportunity
to be heard — Semble: Metaphysically archaic to argue
prerogative writ (issued in Sovereign's name) cannot be issued
against Governor in Council (theoretically headed by Sover
eign's regent); Sovereign not above law, and Parliament and
government subject to Constitution.
Bill of Rights — Right to fair hearing — Before varying
CRTC decision on Bell Canada rate proposal, Governor in
Council must, in absence of emergency or security exigencies,
give party before CRTC opportunity to be heard and accord
representations serious consideration.
Constitutional law — Charter of Rights — Equality rights
— Charter s. 15 rights not available to corporations —
Individual plaintiff making out no case to be treated equally
with similarly situated individual — In constitutional cases,
dun' on courts to direct parties' arguments to relevant issues to
save constitutional principles from being subverted or
overlooked.
Because its enterprise is akin to a public utility, Bell Canada
is subject to the regulatory jurisdiction of the CRTC with
respect, inter alia, to rates, costs and accounting procedures.
Bell Canada's rates are approved by the CRTC according to
factors such as revenues and revenue requirements. During
CRTC hearings in 1986 and 1987 regarding the revenue
requirements of Bell Canada, questions were raised as to
whether Bell Canada cross-subsidized its arm's-length affiliate
Bell Canada International Inc. (BCI) when employees were
transferred to BCI to work on international assignments nor
mally lasting two years or more. The concern was that some of
the costs were being passed on to Bell's subscribers. In its
decision 88-4 of March 17, 1988, the CRTC set the compensa
tion to be paid to Bell or its regulated affiliate, Tele-Direct, for
temporary transfer of employees at the 25% level (a 25%
surcharge on the annual salary and labour-related costs of each
employee). On March 25, 1988, a petition was submitted to the
Governor in Council by Bell Canada Enterprises Inc. (BCE)
and BCI, neither of which had been a party before the CRTC,
requesting that the level be lowered.
Ignoring plaintiff National Anti-Poverty Organization
(NAPO)'s request for an adequate opportunity to formulate a
reply, the Governor in Council, acting under subsection 64(1)
of the National Telecommunications Powers and Procedures
Act (NTPP Act), issued Order in Council P.C. 1988-762
deciding, in effect, that the determination of the value of the
transfers should be restricted to the use of audited costs
associated with re-employment guarantees, and thereby acced
ing to BCE and BCI's request.
These proceedings began as a motion for certiorari to quash
Order in Council P.C. 1988-762. This was changed, on consent,
to an action for a declaration that the Order in Council is null
and void.
Held, the action should be allowed.
Semble: It is metaphysically archaic to argue that because
prerogative writs are issued in the name of the Sovereign, they
cannot be directed against a body of which the Sovereign's
regent is the head, such as the Governor in Council. The
Sovereign is not above the law, and the Parliament and govern
ment of Canada are subject to the Constitution.
It is well established that orders in council are subject to
judicial review especially when, as here, they do not deal with
matters of public convenience or general policy. The Supreme
Court of Canada decision in Thorne's Hardware, stands as
authority for the proposition that neither the power vested in
the Governor in Council nor the particular exercise of that
power are beyond judicial review.
The principle that there is no immunity for orders in council
unlawfully made was enunciated by the Supreme Court of
Canada in the Inuit Tapirisat case. The long-standing principle
that neither the Sovereign nor the Sovereign in Council is above
the law was confirmed recently by the Supreme Court of
Canada in the Operation Dismantle case.
The powers accorded in subsection 64(1) of the NTPP Act,
the exercise of which is considered herein, cannot be described
as other than arbitrary, despotic and autocratic. The constitu
tionality of that subsection, while doubtful, is not at issue here.
Although Estey J., in Inuit Tapirisat, characterized the
power accorded under subsection 64(1) as "legislative", that
power might more precisely be defined as a statutory power for
intervention to correct or rescind decisions which do not con
form to the government's assertion of policy in such matters. To
describe that power as legislative misses the mark set by the
Supreme Court in its later judgment in Thorne's Hardware, in
all instances such as the present one where the power is not
wielded "in matters of public convenience and general policy".
Furthermore, the judgment in Inuit Tapirisat precedes both
the Charter and the revivification of the Bill of Rights in the
Singh case. In that earlier case, Estey J. was free to lump
together as a simply legislative function the intervention, for
policy reasons, to correct a decision rendered as between con
tending parties, and legislating for general public purposes.
And he could then also conclude that the audi alteram partem
rule did not apply to the Governor in Council when intervening
in a CRTC decision made inter partes. Today, the exercise of
the powers found in subsection 64(1) must be interpreted in
consonance with the Constitution and the tenor of the law.
The plaintiffs initially relied on section 15 of the Charter.
However, since the rights guaranteed therein can only be
enjoyed by individuals, NAPO cannot invoke section 15. And
the plaintiff, Milner, has made out no case to be treated equally
with any similarly situated individual. In ordinary litigation, a
court is not obliged to come to the rescue of a litigant whose
pleadings are inept or otherwise off the target, but in a consti
tutional case, it must not allow a private litigant's case to
miscarry if that result would contort or contradict constitution
al principles or imperatives. In accordance with that principle,
counsel were directed to present argument as to the application
of Canadian Bill of Rights, paragraph 2(e). In 1988, the
Governor in Council is obliged, under paragraph 2(e), to
respect the basic canon of "natural justice", fundamental jus
tice or just plain ordinary fairness, audi alteram partem, before
making a determination of the other party's rights and obliga
tions. The Governor in Council, in the absence of emergency or
security intelligence exigencies, cannot lawfully do otherwise.
So, although a cynic might ask whether there is any conse
quence if the Governor in Council does not pay any attention to
the responses of interested parties, the law in 1988 not only
requires that all parties before the CRTC (other than the
petitioner(s) to the Governor in Council) be accorded a reason
able opportunity to respond in writing to the petition, but also
that their responses, if any, be considered with as much care
and concern as the original petition itself is considered.
The argument that judicial review under the Bill of Rights is
somehow anti-majoritarian or undemocratic was to be
answered by pointing out that the provisions for judicial review
in the Charter and Bill of Rights had been put in place by
popularly elected legislators.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Corporations Act, R.S.C. 1970, c. C-32.
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s.
2(e).
Canadian Charter of Rights and Freedoms, being Part 1
of the Constitution Act, /982, Schedule B, Canada Act
/982, 1982, c. 11 (U.K.), ss. 1, 2, 7 to 15, 33.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1).
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2,
18.
Interpretation Act, R.S.C. 1970, c. 1-23, s. 28.
National Telecommunications Powers and Procedures
Act, R.S.C. 1970, c. N-17 (as am. by S.C. 1987, c. 34,
s. 302), ss. 1, 2, 64(1).
National Transportation Act, 1987, S.C. 1987, c. 34, ss.
301, 302, 303.
Order Varying Telecom Decision CRTC 88-4, SOR/88-
250 (P.C. 1988-762).
Railway Act, R.S.C. 1970, c. R-2, s. 321.
CASES JUDICIALLY CONSIDERED
APPLIED:
Thorne's Hardware Ltd. et al. v. The Queen et al.,
[1983] 1 S.C.R. 106; 143 D.L.R. (3d) 577; Operation
Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R.
441; Singh et al. v. Minister of Employment and Immi
gration, [1985] 1 S.C.R. 177; Smith, Kline & French
Laboratories Ltd. v. Canada (Attorney General), [1987]
2 F.C. 359; (1986), 27 C.R.R. 286; 34 D.L.R. (4th) 584;
12 C.P.R. (3d) 385; 78 N.R. 30 (C.A.); R. v. Stoddard
(1987), 59 C.R. (3d) 134 (Ont. C.A.); Ominayak v.
Norcen Energy Resources Ltd. (1987), 83 A.R. 363
(Q.B.); Leighton v. Canada, T-165-85, Muldoon J., judg
ment dated 18/5/88, F.C.T.D., not yet reported; Manito-
ba (Attorney General) v. Metropolitan Stores Ltd.,
[1987] 1 S.C.R. 110; Rajpaul v. Canada (Minister of
Employment and Immigration), [1988] 3 F.C. 157
(C.A.); Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.
CONSIDERED:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; Padfield v. Minister of
Agriculture, Fisheries and Food, [1968] A.C. 997
(H.L.).
REFERRED TO:
Re. Public Utilities Review Commission Act (1986), 52
Sask. R. 53; 26 Admin.L.R. 216 (C.A.); Jasper Park
Chamber of Commerce (The) v. Governor General in
Council, [1983] 2 F.C. 98 (C.A.); Re Doctors Hospital
and Minister of Health et al. (1976), 12 O.R. (2d) 164
(Ont. H.C.); FAI Insurances Ltd v Winneke (1982), 41
ALR 1 (H.C.); Reade v. Smith, [1959] N.Z.L.R. 996
(S.C.); Aerlinte Eireann Teoranta v. Canada, [1987] 3
F.C. 383; 9 F.T.R. 29 (T.D.); C.E. Jamieson & Co.
(Dominion) Ltd. et al. v. Attorney-General of Canada
(1987), 37 C.C.C. (3d) 193; 12 F.T.R. 167 (F.C.T.D.).
COUNSEL:
Andrew J. Roman and Glen W. Bell for
plaintiffs.
Duff F. Friesen for defendant.
David Wilson for intervenors.
SOLICITORS:
Public Interest Advocacy Centre, Ottawa, for
plaintiffs.
Deputy Attorney General of Canada for
defendant.
Osler, Hoskin & Harcourt, Ottawa, for
intervenors.
The following are the reasons for judgment
rendered in English by
MULDOON J.: These proceedings began as an
application pursuant to section 18 of the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, direct
ed against the Governor in Council as respondent,
and seeking certiorari to quash Order in Council
P.C. 1988-762 dated April 22 1988, [Order Vary
ing Telecom Decision CRTC 88-4, SOR/88-250].
That decretal purports to vary, pursuant to subsec
tion 64(1) of the National Telecommunications
Powers and Procedures Act,' Telecom Decision
CRTC 88-4 rendered March 17, 1988.
' On August 28, 1987, Royal Assent was accorded to the
National Transportation Act, 1987, S.C. 1987, c. 34 which
provides:
At the commencement of the hearing, counsel
for the Governor in Council, who is also Crown
counsel, and a member of the Attorney General's
staff, raised a preliminary objection. His argument
was not illogical but raised and praised some
rather archaic black-letter anachronisms about the
noble personage of Her Majesty the Queen, her
Crown and dignity. Resorting to section 28 of the
Interpretation Act, R.S.C. 1970, c. I-23, Crown
counsel urged that because the Governor in Coun
cil, admittedly a "federal board, commission or
tribunal", acts on behalf of the Sovereign, certain
principles of law applicable to the Crown apply
also to the Governor in Council. The ancestral
paradigm of certiorari being a prerogative writ
issued by superior courts of record, in the Sover
eign's name, so goes the reasoning, it is beyond the
power (or at least unseemly) of the Court to issue
such an order directed to a federal board, commis
sion or tribunal of which the Sovereign's regent is
the head, even if he or she be rarely ever present at
cabinet meetings.
Therefore, Crown counsel submitted, since no
prerogative writ or other mandatory order pursu
ant to section 18 of the Federal Court Act may be
directed against either the Crown, or allegedly
against the Governor in Council, "the only avail
able and appropriate manner of securing judicial
review is by way of a proceeding brought against
the Attorney General of Canada to obtain declara-
tory relief against the Governor in Council". This
may be a metaphysically archaic optic when every
one has for ages known that the Sovereign is not
(Continued from previous page)
National Transportation Act
301. The long title of the National Transportation Act is
repealed and the following substituted therefor:
"An Act respecting powers and procedures in relation to cer
tain telecommunications matters"
302. Sections I and 2 of the said Act are repealed and the
following substituted therefor:
"1. This Act may be cited as the National Telecommuni
cations Powers and Procedures Act.
INTERPRETATION
2. In this Act,
"Commission" means the Canadian Radio-television and
Telecommunications Commission;
"Minister" means the Minister of Communications;
"Secretary" means such officer or employee of the Commis
sion as is designated by the Commission to carry out
secretarial duties for the Commission."
303. The heading preceding section 3 and sections 3 to 16 of
the said Act are repealed.
above the law and since 1982, if not before, the
Parliament and government of Canada are subject
to the supreme law of Canada—the Constitution.
Moreover it is clear that if Her Majesty even
knows of these proceedings, she cannot feel person
ally offended or aggrieved in that her overseas
regent nominally in council could be obliged, if so
adjudicated, to comply with an order of the Feder
al Court, which in the case of certiorari would
mean only that a cabinet decision would, on lawful
grounds, be quashed. Those who like Crown coun
sel pretend otherwise may counter-productively
induce some of their fellow citizens to wish for
more republican forms of government. Royal gov
ernment ought not to be regarded and protected as
a hothouse plant lest it become one. The common
law of the Constitution can hardly be a living tree
if constrained by a pathologically musty atavism
as the sterile goal of its practitioners and judges.
The applicant's counsel, nevertheless, did not
wish the argument to focus on the preliminary
objection. After a recess during which all counsel
had an opportunity to consult with their respective
clients, and with each other, they returned with a
form of notice of motion to which all counsel
attested the consent of their respective clients. It
runs thus:
MOTION BY APPLICANT FOR AN ORDER:
1. amending the style of cause so that the respondent is the
Attorney General of Canada:
2. changing the proceeding from an application to an action in
which the relief sought is a declaration that Order in Council
P.C. 1988-762, 22 April 1988 is null and void, and trying the
action today on the basis of the applicant's record, provided
that no declaration is to be granted on the basis of a finding
that the plaintiff's rights under section 15 of the Charter
have been infringed until after the parties have exchanged
pleadings and had an opportunity to exercise all of their
pre-trial rights and there has been a separate trial of any
issue that may be raised under section I of the Charter.
Counsel by mutual consent prepared a form of
order to implement the above requests, which
order was signed and pronounced on May 26,
1988. It accounts for the above displayed style of
cause. Moreover, all counsel orally undertook for
their clients that the somewhat unorthodox meta
morphosis of the nature of the proceedings, with
their attendant foregoing of pleadings, discoveries
and viva voce witnesses, to the extent provided, is
not to be the subject of any appeal by any of them.
As can be seen this action may endure "until
after the parties have exchanged pleadings and
had an opportunity to exercise all their pre-trial
rights" in regard to the question of whether the
plaintiffs' rights, if any, under section 15 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] have been
infringed, and any issue which may be raised
under section 1 of the Charter, have been tried. In
order to obtain a relatively prompt resolution of
the other matters in issue on May 25, extended by
the volume of the plaintiffs' counsel's submissions
over to May 26, and then still adjourned over to
June 10 to hear from the defendant and the inter-
veners, counsel may well have devised a barely
workable new species of procedure, which they
have undertaken with their eyes wide open, and
about which they cannot now be heard to
complain.
The corporate plaintiff, National Anti-Poverty
Organization (NAPO), is a charitable organiza
tion incorporated in May, 1973, under Part II of
the Canada Corporations Act [R.S.C. 1970, c.
C-32]. It purports to act, and to have intervened in
the relevant proceedings before the Canadian
Radiotelevision and Telecommunications Commis
sion, (CRTC), on behalf of "low income families",
according to its letters patent, who may or may
not, but are assumed to favour its activities. The
plaintiff, Arthur Milner, swears that he is an
associate member of NAPO, and a Bell telephone
subscriber, but he says nothing about whether he
personally is a member of "a low income family".
In any event, the CRTC accepted NAPO as an
intervener in its proceedings and, indeed, awarded
NAPO its costs of so appearing and participating
therein. The Public Interest Advocacy Centre pro
vided counsel for NAPO at the CRTC hearings
according to the affidavit of Elizabeth MacKenzie.
Exhibit "A" to her first affidavit sworn May 6,
1988 is a copy of selected excerpts of Telecom
Decision CRTC 88-4, being, in bilingual format,
pages 1 (the title page) to 5 (including the table of
contents and the first paragraph of the introduc
tion) and pages 52 to 59. The decision bears the
following headlines:
BELL CANADA -1988 REVENUE REQUIREMENT, RATE
REBALANCING AND REVENUE SETTLEMENT ISSUES
BRITISH COLUMBIA TELEPHONE COMPANY-
REVISIONS TO TRANSCANADA RATE SCHEDULE
AND REVENUE SETTLEMENT ISSUES
The CRTC decision's introductory paragraph runs
thus:
On 3 February 1987, the Commission received two applica
tions from Bell Canada (Bell) under Tariff Notices 2269 and
2270. In the letter that accompanied these applications, Bell
pointed out that in Interexchange Competition and Related
Issues, Telecom Decision CRTC 85-19, 29 August 1985
(Decision 85-19), the Commission had indicated its intent to
initiate a public review of the issues related to rate rebalanc-
ing. In this context, the applications constituted a specific
rate proposal for the Commission's consideration.
Here it should be noted that Bell is one of two
wholly owned Canadian subsidiaries of one of the
two interveners, Bell Canada Enterprises Inc.
(BCE), the holding company of the Bell group of
companies and enterprises. BCE manages interests
in telecommunication services, telecommunications
equipment manufacturing, energy, printing and
real estate. The other intervener, Bell Canada
International Inc. (BCI) is also a wholly owned
Canadian subsidiary of BCE. BCI has provided
telecommunications consulting services to govern
ments and corporations in some 70 countries over
the past 20 years, according to its solicitors'
memorandum of fact and law. Bell was the partici
pant in the CRTC proceedings. Its owner BCE,
and its sibling subsidiary BCI, were not partici
pants in the hearing before the CRTC, but they
were the petitioners who induced the Governor in
Council to promulgate Order in Council P.C.
1988-762, and they are the interveners in these
present proceedings in this Court. Unlike its
parent (or owner) BCE, and its sibling BCI, Bell is
subject to the regulatory jurisdiction of the CRTC
in respect to various matters, including rates, costs
and accounting procedures, because of the type of
its enterprise, akin to a public utility, which it
chooses to pursue for gain.
These regulatory issues arise because only Bell
is regulated, providing as it does, services contem
plated by the relevant regulatory legislation. In
order to fulfill its international contracts, BCI
temporarily hires from time to time certain
employees of, and transferred from, Bell and other
regulated Canadian telecommunications compa
nies. During the time such employees are engaged
by BCI, all direct costs such as pay, benefits and
incidental expenses are borne exclusively by BCI.
In addition pursuant to present arrangements be
tween Bell and BCI, the sibling BCI pays to Bell
certain indirect costs of engaging Bell's employees,
thus:
(a) a once-only fee of $1,840 for each employee
transferred for more than 30 days;
(b) a once-only fee of $455 for each employee
"repatriated" to Bell;
(c) a once-only fee of $90 for each extension of
leave of absence for any employee seconded to
BCI; and
(d) in addition, an annual fee of $1,000 per
employee engaged by BCI, in order to offset
possible unknown costs, or unascertained costs
which Bell might incur in regard to such
employee.
The question before the CRTC was whether Bell
was charging BCI enough for the engagement by
BCI of Bell's experts to meet the needs of BCI's
consultation contracts.
Another vantage from which to view this ques
tion is to enquire whether Bell's charges for the
loan of its employees are so little as to impose
some of the costs thereof on Bell's subscribers. It is
apparent from a reading of the excerpts of the
CRTC's reasons and orders, CRTC 88-4 above
mentioned, CRTC 88-6 a copy of which is exhibit
"A" to Elizabeth MacKenzie's supplementary
affidavit sworn May 10, 1988, and the partial
transcript which is exhibit "K" to that supplemen
tary affidavit, that the CRTC's hearings and
examination of the matter of Bell's aforesaid
charges for the lending of its employees were
lengthy, painstakingly elaborate, careful, profound
and fair.
It is appropriate to examine some few selected
passages, at least, from Telecom Decision CRTC
88-4 [hereinafter sometimes: Decision 88-4],
which are among those annexed as exhibit "A" to
Elizabeth MacKenzie's affidavit sworn May 6,
1988. It is useful to note that the CRTC's Decision
88-4 is a "rate decision concerning Bell Canada
made pursuant to section 321 of the Railway Act,
R.S.C. 1970, [c.] R-2" as is admitted by the
interveners, BCE and BCI, on page 10 of their
memorandum of fact and law, filed herein on May
25, 1988.
Here, then, are some few selected passages from
Decision 88-4 [at pages 52 to 54]:
V INTERCORPORATE TRANSACTIONS
A. Compensation for Temporarily Transferred Employees
I) Background
In Decision 86-17, the Commission determined that the
appropriate compensation for employees temporarily trans
ferred to Bell Canada International Inc. (BCI) was a 25%
contribution calculated on an imputed cost comprising the
aggregate of the annual salary and the labour related costs of
each such employee immediately prior to transfer. It was also
determined that these costs should be adjusted, where appli
cable, for any normal salary increases during the period of
transfer, but should not include any salary adjustments
attributable solely to an overseas posting.
Bell also stated that, in a letter attached to its Memoranda of
Support dated 14 July 1987 and addressed to Mr. A.J. de
Grandpré, Chairman of BCE Inc. (BCE), formerly Bell
Canada Enterprises Inc., the Minister of Communications
had indicated, in effect, that the level of compensation for
regulatory purposes should not exceed the audited costs
directly and indirectly associated with these transfers.
In a letter to the Commission dated 9 October 1987 and filed
as CRTC Exhibit 2, the Minister of Communications stated
that the remarks in her letter of 14 July 1987 did not instruct
the Commission on how to deal with the transfer of revenues
between Bell and BCI. The letter also stated that it was not
the Minister's intention to leave the impression that the
determination of the value of these transfers should be
restricted to the use of accounting costs.
The Court heard much of these letters to and from
the Minister during the course of the respective
oral presentations of counsel. The importance
attached to them by the plaintiffs' counsel will be
mentioned later on.
Then, from pages 54 through to 58, the CRTC
very carefully summarized the respective positions
of the parties before it: Bell, the Canadian Busi
ness Telecommunications Alliance (CBTA, repre
senting large business users) and the Consumers'
Association of Canada (CAC), and again, Bell in
reply. The CRTC also noted that "Ontario, CBTA
et al and CAC ... all expressed the view that the
regulatory treatment set out in Decision 86-17
continues to be appropriate" (page 56) whereas
"Bell ... expressed the view that the Commission
should not feel constrained by its finding in Deci
sion 86-17, but (page 57) should regard the matter
in the light of factors and developments outlined
during the proceeding" (page 58).
The CRTC then set out [at pages 58-59] its
conclusion on this matter of compensation to Bell
for having lent, and for lending, its employees to
BCI or any affiliated company.
3) Conclusions
The Commission has not been persuaded that the approach
to compensation for temporarily transferred employees pre
scribed in Decision 86-17 should be changed. Bell has chosen
to address the question of whether a cross-subsidy exists
solely on the basis of accounting costs. The Commission
rejects this view and is of the opinion that accounting costs
alone do not capture the full costs involved in temporary
employee transfers to BCI. The Commission notes in this
regard the Minister's letter, dated 9 October 1987, in which
she stated: "... it was not my intention to leave the impres
sion that the determination of the value of these transfers
should be restricted to the use of accounting costs."
Among the costs not included in the accounting costs are
those costs associated with the re-employment guarantees.
The Commission finds persuasive CAC's argument that Bell,
by virtue of these guarantees, absorbs a large part of the risk
that BCI might, at some point, be unable to find sufficient
work for its employees.
In Decision 86-17, the Commission noted that the company
had been reasonably successful in achieving the traditional
25% contribution in connection with intercorporate transac
tions. In this regard, the Commission notes that when Bell
employees are merely loaned to BC!, rather than being
temporarily transferred, BCI compensation to Bell includes a
25% contribution on employee salaries and benefits, and that
the approach adopted in Decision 86-17 is consistent with
that practice.
In the Commission's view, the question of whether or not a
cross-subsidy exists is best determined by reference to the
fair market value of the goods or services being supplied. If
Bell is supplying goods or services to a non-arm's length
company at less than fair market value, it is subsidizing that
company. The Commission realizes that fair market value is,
in these circumstances, difficult to determine. However,
there is nothing on the record of this proceeding to indicate
that the proxy for the fair market value of temporarily
transferred employees adopted in Decision 86-17 is not
appropriate. In the Commission's view, difficulties BC! may
be experiencing in the international marketplace do not
provide sufficient justification for a departure from the Com
mission's policy that Bell subscribers should not be obliged to
subsidize the competitive endeavours of Bell affiliates.
The Commission has adjusted the company's 1988 revenue
requirement to reflect its decision regarding the annual
compensation for temporarily transferred employees. The
Commission estimates that, for regulatory purposes, this will
increase the company's 1988 net income after taxes by about
$4 million.
Telecom Decision CRTC 88-4 was released on
March 17, 1988. On March 25, BCE and BCI,
neither of which had been a party before the
CRTC, filed a petition pursuant to subsection
64(1) of the National Telecommunications
Powers and Procedures Act, above cited. They
requested the Governor in Council to vary Deci
sions 86-17 and 88-4. That petition was submitted
in confidence because it was alleged to contain
commercially sensitive information about BCE
and BCI. Obviously, no copies of the petition were
circulated to or among any of the parties which
had opposed Bell before the CRTC.
After NAPO learned of the existence of the
petition, it contacted the General Counsel of BCE
and requested a copy of it and its supporting
material. Counsel for BCE indicated, however,
that a copy of the petition would be made avail
able to officials of NAPO, provided that they
would not make it public. NAPO declined the
offer, just as it had (with other parties) previously
refused to accept that condition of confidentiality
sought by Bell on behalf of BCE and BCI toward
the concluding sessions of the CRTC's hearing on
the matter.
On this little contretemps the Court agrees with
the defendant's counsel. NAPO is whining that
because it would not accept the proviso for confi
dentiality, it never did get to examine the petition.
In this regard NAPO has simply to face up to the
hardships it must accept in choosing the row it
elects to hoe. An imposition of confidentiality for
commercially sensitive information is not so for
eign to administrative law proceedings as to create
shock or complaint. But NAPO has to decide
whether it wishes to follow the paths of adminis
trative law proceedings or to follow the paths of
politics. It is unlikely to achieve much satisfaction
in following both simultaneously, but none can
forbid NAPO from such courses. NAPO, clearly
by inference, was just itching to publicize the
petition's contents and supporting material. The
Court is not moved by NAPO's complaint in this
regard, assuming that the information about BCE
and BCI were indeed sensitive, a matter which
might have been determined later, and honour
ably, too. If NAPO's political role be legitimate,
and it is, then so is the caution evinced by a
competitive commercial enterprise in regard to its
sensitive information. NAPO wilfully blinded
itself.
Since it was unable to obtain an unrestricted,
public copy of the petition submitted to the Gover
nor in, Council by BCE and BCI, NAPO, on April
19, 1988, delivered by hand to the Clerk of the
Privy Council a letter (exhibit "B" to Ms. Mac-
Kenzie's affidavit sworn May 6, 1988) requesting
the Governor in Council not to dispose of the
petition until NAPO secured a copy of it and had
an adequate opportunity to formulate a reply.
The Governor in Council replied, rather in the
manner of Frontenac, by issuing Order in Council
P.C. 1988-762 on April 22, 1988. Frontenac could
have been excused because of the emergency of his
circumstances, but NAPO was accorded no other
reply. It was denied any reasonable opportunity to
make even wilfully blind submissions. No emer
gency has been asserted by any party hereto.
The Governor in Council purports to act in
lawful invocation of subsection 64(1) of the Na
tional Telecommunications Powers and Proce
dures Act (NTPP Act). This very text was once
subsection 64(1) of the National Transportation
Act. It runs thus:
64. (1) The Governor in Council may at any time, in his
discretion, either upon petition of any party, person or com
pany interested, or of his own motion, and without any
petition or application, vary or rescind any order, decision,
rule or regulation of the Commission, whether such order or
decision is made inter partes or otherwise, and whether such
regulation is general or limited in its scope and application;
and any order that the Governor in Council may make with
respect thereto is binding upon the Commission and upon all
parties.
Since all parties in this present action acknowl
edged that the Governor in Council, when acting
pursuant at least to subsection 64(1) above recited,
is a "federal board, commission or other tribunal"
within the meaning of that term's definition in
section 2 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, it will be convenient and far
from insulting to refer to the Governor in Council
by the English pronoun "it". In such manner, the
Court and the parties can grammatically accom
modate the exigencies of paragraph 18(b) of the
Federal Court Act.
Here is the answer made by the Governor in
Council only three days after it received NAPO's
unacknowledged letter. A copy of P.C. 1988-762 is
exhibit "C" to Ms. E. MacKenzie's affidavit sworn
May 6, 1988.
Whereas the Canadian Radio-television and Telecom
munications Commission rendered Telecom Decision CRTC
86-17 on October 14, 1986, in which it found that an
appropriate compensation for Bell Canada employees tem
porarily transferred to Bell Canada International Inc. would
be a twenty-five per cent contribution to be calculated on an
imputed cost comprising the aggregate of the annual salary
and labour related costs of each such employee, immediately
prior to transfer;
Whereas on March 17, 1988, the Commission determined
in Telecom Decision CRTC 88-4 that, for regulatory pur
poses, the compensation for any employee temporarily trans
ferred from either Bell Canada or Tele-Direct (Publications)
Inc. to any affiliated company should be as prescribed in
Telecom Decision CRTC 86-17;
Whereas on March 25, 1988, BCE Inc. and Bell Canada
International Inc. filed a petition pursuant to subsection
64(1) of the National Telecommunications Powers and
Procedures Act asking the Governor in Council to vary or
rescind that part of Telecom Decision CRTC 86-17, as well
as that part of Telecom Decision CRTC 88-4 dealing with
the compensation paid by Bell Canada International to Bell
Canada for employees temporarily transferred from Bell
Canada to Bell Canada International;
And Whereas the Governor in Council has determined
that it is in the public interest to vary Telecom Decision
CRTC 88-4.
Therefore Her Excellency the Governor General in Coun
cil, on the recommendation of the Minister of Communica
tions, pursuant to subsection 64(1) of the National Telecom
munications Powers and Procedures Act, hereby varies
Telecom Decision CRTC 88-4 rendered March 17, 1988, by
deleting at pages 58 and 59 the five paragraphs under the
heading "3) Conclusions" and substituting therefor the
following:
"The costs associated with the temporary transfer of
employees consist solely of the accounting costs, being the
costs of selecting and reintegrating Bell Canada
employees, extending their leave of absence and other
administrative costs directly associated with their transfer,
and the costs associated with the re-employment guaran
tees. Therefore, for regulatory purposes, the compensation
for any employee temporarily transferred from either Bell
Canada or Tele-Direct to any affiliated company shall be
as follows:
(a) for each employee transferred for periods exceeding
30 days, a one time fee of $1,840;
(b) for each employee repatriated, a one time fee of
$455;
(c) for each extension of a leave of absence for an
employee, a one time fee of $90;
(d) an annual fee of $1,000 for each employee tem
porarily transferred; and
(e) in addition to the amounts specified in paragraphs
(a) to (d), an annual fee to be determined by the
Commission, which fee is to be equivalent to the cost
associated with providing a guarantee of re-employment.
In order for the Commission to determine the amount
identified in (e), Bell Canada is required to file with the
Commission, by June 15, 1988, its audited costs associated
with the re-employment guarantees, and all relevant infor
mation and documentation that would be useful to the
Commission in making its determination."
Certified to be a true copy—Copie certifiée conforme
"P. Tellier"
Clerk of the Privy Council—Le greffier du Conseil Privé
And so, despite the Minister's earlier assurance
on October 9, 1987 to the CRTC's Chairman that
"it was not my intention to leave the impression
[in even earlier correspondence with the Chairman
& C.E.O. of BCE] that the determination of the
value of these transfers [of Bell's employees]
should be restricted to the use of accounting costs"
[exhibit "J" to Ms. MacKenzie's affidavit sworn
May 10, 1988], the Order in Council really comes
down to a restriction to the use of "audited costs
associated with the re-employment guarantees".
Of course, the Minister and the Governor in Coun
cil are not bound in law by the Minister's previous
letters to soothe the apprehensions of the interven-
ers' executives about Decision 86-17 prior to the
CRTC hearing which ultimately produced Deci
sion 88-4. Those executives enjoyed perfect liberty
to approach, and engage in correspondence with,
the Minister, as did CAC, NAPO and CBTA et
al. The whole correspondence is copied as exhibits
"C", "D", "E", "F", "G", "H" and "J" to the
supplementary affidavit sworn May 10, 1988.
Now, it should also be noted that on April 22,
1988, the same date as that of P.C. 1988-762, the
Information Services of the Minister's department,
called Communications Canada, issued a com-
muniqué on the very subject of the variation of
CRTC Decision 88-4. This news release (exhibit
"D" to the affidavit of Ms. MacKenzie, sworn
May 6) is too long, to recite in full here, running
as it does to 2 1 / 4 full pages. A reasonable sampling
of its passages, including the one which is
impugned by the plaintiffs is warranted. The plain
tiffs do not mean to be facetious when they char
acterize the communiqué as the "reasons for deci
sion" of the Governor in Council.
NEWS RELEASE COMMUNIQUÉ
APRIL 22, 1988 FOR IMMEDIATE RELEASE
Governor in Council varies CRTC decision regarding
Bell Canada
OTTAWA—The Governor in Council has varied CRTC Deci
sion 88-4 to ensure that Bell Canada International (BCI) is
not unfairly placed at a disadvantage in the highly competi
tive international telecommunications market because of an
arbitrary financial calculation. The variance includes meas
ures to protect the interests of Bell Canada subscribers and
prevent any cross-subsidy between Bell and BCI.
At issue is the level of fees paid by BCI to Bell Canada
when Bell employees are temporarily transferred to BCI to
work on international consulting contracts. BCI, a subsidiary
of Bell Canada Enterprises, is not regulated by the CRTC. It
is a wholly-owned Canadian company that has provided
telecommunications consulting services to governments and
telecommunications companies in some 70 countries over the
past 20 years. The hundreds of Canadians employed by BCI
have helped establish Canada's reputation as a world leader
in the provision of high-technology goods and services. BCI's
consulting contracts also have led to significant sales of
Canadian-made products ranging from wire and sophisticat
ed switching equipment to automobiles.
In the absence of detailed financial analysis of these
indirect costs by Bell Canada, the CRTC concluded, based
on the evidence before them, that an appropriate contribu
tion would be a 25 per cent surcharge on the annual salary
and labor-related costs of each employee. In its decision 88-4
of March 17, 1988, the Commission set the compensation to
be paid to Bell or its regulated affiliate, Tele-Direct, for
temporary transfer of employees at the 25 per cent level. On
March 25, 1988, a petition was submitted to the Governor in
Council by Bell Canada Enterprises and Bell Canada Inter
national requesting that the level be lowered.
In response to this petition, the Government has reviewed
the evidence presented before the CRTC. The fundamental
principle underlying this review has been the Government's
commitment that Bell Canada subscribers should not be
required to cross-subsidize the operations of its unregulated
affiliate. The Government has also been guided by its recog
nition of the important economic contribution made to all
regions of the country as a result of the international sale of
Canadian telecommunications goods and services.
As a result of this review, the Government has concluded
that the compensation levels proposed by the CRTC are
arbitrary and appear to be excessive and potentially damag
ing to Canada's interests internationally. The Government
has been unable to identify any other jurisdiction where
surcharges of such a magnitude are applied to the transfer of
employees in similar circumstances, between regulated tele
communications companies and their unregulated affiliates.
The Government also notes that levels of compensation paid
by BCI to Bell Canada are the same as those paid by BCI to
other regulated Canadian telecommunications companies
when their employees are temporarily assigned to work on
BCI projects. In view of these factors, the Government is of
the view that the level set by the CRTC would subject BCI
to unequal treatment in relation to its Canadian competitors
and place it at a severe disadvantage in relation to its major
international competitors.
In addition, the Government is of the view that the one
indirect cost suggested by the intervenors that requires spe
cific compensation is the re-employment guarantee offered to
Bell Canada employees when they transfer to BCI and has
varied the decision so that Bell Canada will be reimbursed
for this cost. Since no evidence has been presented before the
CRTC to quantify this cost the Governor in Council requires
that Bell Canada file with the Commission, by June 15,
1988, its audited costs associated with the re-employment
guarantees and all relevant information and documentation
which would be useful to the Commission in making its own
determination.
The communiqué was issued either simultane
ously with, or right after, the promulgation of the
order in council. It was not issued by the Governor
in Council, but emanated from the "Press Secre
tary, Minister's Office, Ottawa ..." (page 3),
apparently through "Information Services" also in
Ottawa, and it bears the Government logo for the
Department of Communications. Being a news
release meant to inform the public and thereby to
promote favourable opinion of the intervention by
the Governor in Council, it is not shown to be
anything like a "regulatory impact statement"
which is formulated before any order in council is
composed or promulgated, and which operates for
and as the factual basis upon which an order in
council is made.
Thus, whereas it may, by strong inference, be
shown that the Governor in Council could have
been misled and misinformed by a prior regulatory
impact statement in formulating an order in coun
cil, the same notion does not operate for a news
release possibly composed by a Minister's press
secretary. The plaintiffs' counsel urged the Court,
without contradiction by opposing counsel, to
adopt a worldly attitude and evince inherent
understanding of how these matters really work.
By that standard, one would not place much reli
ance on such a news release, for knowledgeable
persons understand that in the releases of the
federal and provincial governments of no matter
which partisan stripe there is a goodly element of
puffery for political advantage. Indeed, if by seren
dipitous coincidence additional good effects of an
order in council can be perceived beyond the limits
imposed by the fundamental statute, why should
any Minister's press secretary worth his or her salt
not fold them into the resulting communiqué?
There is, in that news release, no evidence even by
inference that when it passed the Order in Council
P.C. 1988-762, the Governor in Council was even
aware of the contents of the news release, and
there is certainly no inference that it was misin
formed or misled by that news release, which may
be considered as having been formulated after the
event.
There is much jurisprudence holding that an
order in council or a Minister's direction which
purports to override a board's or commission's
mandatory duties (Re. Public Utilities Review
Commission Act (1986), 52 Sask. R. 53; 26
Admin.L.R. 216 (C.A.)), or which purports to
deal with a different type or kind of order or to do
something extraneous to or different from the
scope of the Commission's decision (Jasper Park
Chamber of Commerce (The) v. Governor General
in Council, [1983] 2 F.C. 98 (C.A.), at page 115;
Re Doctors Hospital and Minister of Health et al.
(1976), 12 O.R. (2d) 164 (Ont. H.C.), at page
176), is voidable by curial declaration and of no
effect. There is jurisprudence to the same effect in
sibling countries of the same parliamentary and
common law traditions in their public law as
Canada, even though they have not the same
constitutional imperatives or rights for everyone as
those expressed in Canada. Those jurisprudential
authorities are Padfield v. Minister of Agricul
ture, Fisheries and Food, [1968] A.C. 997 (H.L.)
from England, and FAI Insurances Ltd y Winneke
(1982), 41 ALR 1 (H.C.) from Australia. In the
latter case, Gibbs C.J. cites to the like effect
Reade v. Smith, [1959] N.Z.L.R. 996 (S.C.) from
New Zealand.
In a slightly different context, where the Gover
nor in Council makes regulations of wide, if not
general, import where there is no lis or direct
intervention in the decision of any adjudicatory
board, tribunal or commission or other statutory
power wielder, the Supreme Court of Canada in
Thorne's Hardware Ltd. et al. v. The Queen et al.,
[1983] 1 S.C.R. 106; 143 D.L.R. (3d) 577, per
Dickson J., the present chief Justice of Canada,
writing for the unanimous Court, teaches [at pages
111 S.C.R.; 581 D.L.R.]:
Decisions made by the Governor in Council in matters of
public convenience and general policy are final and not
reviewable in legal proceedings. Although, as I have indicat
ed, the possibility of striking down an order in council on
jurisdictional or other compelling grounds remains open, it
would take an egregious case to warrant such action. This is
not such a case. [Emphasis not in original text.]
Remarkably, counsel for the plaintiffs and counsel
for the interveners both cited the foregoing pas
sage in argument on behalf of their respective
clients.
Analytically viewed, the decision made here by
the Governor General in Council pursuant to sub
section 64(1) of the NTPP Act is not in a matter
of public convenience or general policy. The inter
vention of the Governor in Council here operates
in a matter of private convenience for and on
behalf of two unregulated corporations BCE and
BCI, the interveners in the case at bar. It does not
operate in a matter of general policy, but rather
the particular policy enunciated in the Minister's
letters and in P.C. 1988-762 itself, of requiring the
CRTC to base Bell's compensation on the audited
statements—to take an accountant's approach to
previously spent dollars and cents and not an
actuary's approach to incidence of forecastable
risk. Thus, on the authority of the Thorne's Hard-
ware judgment, both the power vested in the Gov
ernor in Council, and the particular exercise of
that power, are not beyond judicial review.
The declaration of that principle of no immunity
for orders in council when and if made unlawfully
was enunciated by the Supreme Court in Attorney
General of Canada v. Inuit Tapirisat of Canada et
al., [1980] 2 S.C.R. 735, at page 748. Confirma
tion of the firmly long-standing principle that nei
ther the Sovereign nor the Sovereign in Council,
including the Sovereign's Canadian regent, is
above the law, was expressed in latter years by the
Supreme Court once again in Operation Dismantle
Inc. et al. v. The Queen et al., [ 1985] 1 S.C.R.
441, at page 455.
In order to make a fair review of the particular
exercise of the powers accorded pursuant to sub
section 64(1) of the National Telecommunications
Powers and Procedures Act, one must examine
and consider it with care. Except for the admitted
ly confining existence of an "order, decision, rule
or regulation of the Commission" which is analo
gous to jurisdiction as is a spark of ignition, there
is almost no confinement to the conflagration of
powers vested by Parliament in the Governor in
Council. That body may thereon at any time,
either upon petition of any party, person or com
pany interested, or of its own motion, and without
any petition or application, simply do what it will
to or about any CRTC decision such as Telecom
Decision 88-4, even though rendered inter partes;
and whatever the cabinet does about or to such
regulation, its order is binding upon the CRTC
and all parties. It is difficult to describe those
powers in adjectives other than arbitrary, despotic
and autocratic.
The question of whether, in times of no emer
gency, it is constitutionally legitimate for the Par
liament of Canada to accord by ordinary legisla
tion to the Governor in Council albeit narrowly
confined but otherwise absolute powers of unlimit
ed duration, especially when there is no legislative
attempt to invoke section 33 of the Charter or
section 2 of the Canadian Bill of Rights [R.S.C.
1970, Appendix III], is a question which must be
left to another day. The plaintiffs' counsel in open
court eschewed and foreswore in these proceedings
any attack on the vires of Parliament to enact
subsection 64(1) of the NTPP Act. The attack is
upon the manner in which the Governor in Council
exercised those powers.
What manner of powers is accorded? In the
Inuit Tapirisat judgment, Estey J. characterized
the powers as legislative. He made several refer
ences of that nature in [ 1980] 2 S.C.R. thus:
[at pages 752 to 754]
The Commission is empowered by s. 321 of the Railway Act,
supra, and the section of the CRTC Act already noted to
approve all charges for the use of telephones of Bell Canada.
In so doing the Commission determines whether the proposed
tariff of tolls is just and reasonable and whether they are
discriminatory. Thus the statute delegates to the CRTC the
function of approving telephone service tolls with a directive
as to the standards to be applied. There is thereafter a
secondary delegation of the rate-fixing function by Parlia
ment to the Governor in Council but this function only comes
into play after the Commission has approved a tariff of tolls;
and on the fulfillment of that condition precedent, the power
arises in the Governor in Council to establish rates for
telephone service by the variation of the order, decision, rule
or regulation of the CRTC. While the CRTC must operate
within a certain framework when rendering its decisions,
Parliament has in s. 64(1) not burdened the executive branch
with any standards or guidelines in the exercise of its rate
review function. Neither were procedural standards imposed
or even implied ... The executive branch cannot be deprived
of the right to resort to its staff, to departmental personnel
concerned with the subject matter, and above all to the
comments and advice of ministerial members of the Council
who are by virtue of their office concerned with the policy
issues arising by reason of the petition whether those policies
be economic, political, commercial or of some other nature.
Parliament might otherwise ordain, but in s. 64 no such
limitation had been imposed on the Governor in Council in
the adoption of the procedures for the hearing of petitions
under subs. (1).
This conclusion is made all the more obvious by the added
right in s. 64(1) that the Governor in Council may "of his
motion" vary or rescind any rule or order of the Commission.
This is legislative action in its purest form where the subject
matter is the fixing of rates for a public utility such as a
telephone system.
[at pages 758 to 760]
The Governor in Council under s. 64(1) is entitled to vary
decisions on telephone tariffs already made by another body,
but this difference does not strike me as material. Nor does
the fact that a citizen may invoke the review procedure of s.
64(1) via petition, while no comparable right existed under
the English act, constitute a valid ground of distinction.
There is only one review procedure under s. 64(1) though it
may be triggered in two ways, i.e., by petition or by the
Governor in Council's own motion. It is clear that the orders
in question in Bates and the case at bar were legislative in
nature and I adopt the reasoning of Megarry J. to the effect
that no hearing is required in such cases. I realize, however,
that the dividing line between legislative and administrative
functions is not always easy to draw: see Essex County
Council v. Ministry of Housing and Local Government
((1967), 66 L.G.R. 23 (Ch.D.)).
Where, however, the executive branch has been assigned a
function performable in the past by the Legislature itself and
where the res or subject matter is not an individual concern
or a right unique to the petitioner or appellant, different
considerations may be thought to arise. The fact that the
function has been assigned as here to a tier of agencies (the
CRTC in the first instance and the Governor in Council in
the second) does not, in my view, alter the political science
pathology of the case. In such a circumstance the Court must
fall back upon the basic jurisdictional supervisory role and in
so doing construe the statute to determine whether the
Governor in Council has performed its functions within the
boundary of the parliamentary grant and in accordance with
the terms of the parliamentary mandate.
In any case, I can discern nothing in s. 64(l) to justify a
variable yardstick for the application to that section of the
principle of fairness according to the source of the informa
tion placed before the Governor in Council for the disposition
of the respondents' petition. The basic issue is the interpreta
tion of this statutory provision in the context of the pattern of
the statute in which it is found. In my view, once the proper
construction of the section is determined, it applies consist
ently throughout the proceedings before the Governor in
Council.
Just eight short years ago in 1980, the jurispruden-
tial world was not quite the same as it is now.
Parliament and elected federal and provincial
legislators and legislatures have acted decisively
and considerably changed the legal and constitu
tional basis for the lengthy and didactic explana
tion by Estey J. as to why the Supreme Court of
Canada, in 1980, simply, in a black-letter way,
followed "this statutory provision in the context of
the pattern of the statute in which it is found".
In so far as purely legislative powers delegated
by Parliament to the executive branch little, if
anything, has been changed. This Court has held
that truly legislative powers, (for example, to make
regulations under, and consonant with the tenor of
a statute), granted to either the federal or provin
cial executive are superior powers of much greater
legal hardiness than municipal regulatory powers:
Aerlinte Eireann Teoranta v. Canada, [1987] 3
F.C. 383, at pages 391 and 400 to 405; 9 F.T.R. 29
(T.D.), at pages 34 and 39 to 42; and C.E. Jamie-
son & Co. (Dominion) Ltd. et al. v. Attorney-Gen
eral of Canada (1987), 37 C.C.C. (3d) 193, at
pages 231 to 244; 12 F.T.R. 167 (F.C.T.D.), at
pages 194 to 204.
The power to legislate, in a parliamentary
democracy, conjures up the introduction of a pro
posal for legislation—a "bill"—in an open, public
and (except for the Senate) democratically elected
assembly, where the members have the right to
debate it by criticism, opposition and even praise-
ful explanation, and where the government of the
day usually but with certain exceptions stakes its
continuing right to exist as such upon the outcome
of the vote if it also bears an expression of confi
dence in the government of the day. The federal
legislature in Canada is composed of the Senate,
the House of Commons and the Sovereign, repre
sented by the Governor General. It legislates.
Thus, when Estey J., in Inuit Tapirisat, character
ized the power accorded under subsection 64(1) as
"legislative" he could not have had the above
described legislative process, power and institution
in mind. He meant a power delegated by Parlia
ment through legislation. Certainly, as held in that
case (at page 752 S.C.R.) the power is not judicial
or adjudicatory. The continuum of adjudicatory
proceedings leads from the CRTC not to the Gov
ernor in Council, but to the Appeal Division of this
Court. The power given by subsection 64(1) might
more precisely be defined as a statutory power for
intervention to correct or rescind decisions which
do not conform to the government's assertion of
policy in such matters. To describe that power as
legislative misses the mark set by the Supreme
Court in the later judgment in Thorne's Hard
ware, earlier cited, in all instances such as the
present one where the power is not wielded "in
matters of public convenience and general policy".
Determining the Saint John harbour boundaries
from time to time is a truly legislative power.
However correcting the decision of the CRTC in
Bell's case, according to the Government's discrete
policy on the calculation of Bell's appropriate com
pensation for lending its employees to BCI, by
directing the CRTC as to what exclusive factors to
utilize in making that calculation, is something less
legislative in the sense described in Thorne's
Hardware. It is not a matter of public convenience
nor of general policy.
This power to make decisions in matters of
private convenience and discrete policy is a special
power to govern the deliberative and administra
tive conclusions and actions of the CRTC. It does
not operate entirely at large, but only in relation to
those decisions, orders or regulations made by the
Commission which the Governor in Council wishes
to change or quash. It operates also in and over the
realm of persons' rights and obligations as may be
determined by the proceedings before the CRTC.
This demonstrates the importance of noting that
the judgment in Inuit Tapirisat must be regarded
as having been overtaken somewhat by intervening
and momentous events. Two such events are the
1982 amendments of the Constitution [Constitu-
tion Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] and the revivification of the
Bill of Rights by the Supreme Court of Canada in
Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177, at pages 226 to
231.
The 1982 amendments to and patriation of the
Constitution are momentous not only for the
entrenchment of the Canadian Charter of Rights
and Freedoms and all which that entails, but also
because Canadian legislators effectively added to
the written definitions of what manner of country
Canada is. The two are distinct for the new written
definitions, although some of them are written into
the Charter, are quite independent of its provi
sions, and stand for all purposes as constitutional
definitions of Canada. The first such definition
was expressed in the opening words of the Consti
tution Act, 1867 [30 & 31 Viet., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1)] ordaining
that Canada was to have "a Constitution similar in
Principle to that of the United Kingdom". Thus
were imported all of the unwritten constitutional
conventions and traditions including those con
stituted by and incorporated into the common law
which is the basis of all public law in Canada and
all provinces. Further refinements were imported
by jurisprudence, but in 1960 once again the legis
lative branch, for the Dominion that time, further
defined Canada in writing by declaring that the
Canadian Nation is founded on principles which
acknowledge inter alia "a society of free men and
free institutions" who and which "remain free only
when freedom is founded upon respect for moral
and spiritual values and the rule of law". These
descriptions, which precede the substantive provi
sions of the Bill of Rights, were enacted by Parlia
ment in the context of the laws of Canada only,
but not the provincial laws. Once more, in 1981
and 1982, elected legislators both federal and pro
vincial (with the unelected legislators of the
Senate) posited further legal and constitutional
definitions of Canada in the final amendments
which they persuaded the Parliament at Westmin-
ster to pass in regard to Canada's constitution.
Again the description that Canada is founded
upon principles which "recognize the supremacy of
God and the rule of law" appears, but this time
constitutionally entrenched vis-Ã -vis both national
and provincial laws and institutions, in this "free
and democratic society" which imposes only "such
reasonable limits" on Canadians' "rights and free
doms" guaranteed by the Charter, as are "pre-
scribed by law as can be demonstrably justified".
Like the federal Bill of Rights before it, the Char
ter sets its face against treating people unfairly
unequally or arbitrarily; and when and if Parlia
ment should ever seek to do so, those earlier
legislators exacted that it do so deliberately by
providing that such legislation must state that it is
enacted to operate notwithstanding the Bill of
Rights and/or section 2 or sections 7 to 15 of the
Charter.
So, the Charter has been entrenched and the
Bill of Rights has been revived since the Supreme
Court, speaking through Estey J., rendered its
judgment in Inuit Tapirisat. Although Estey J.
was cognizant of a distinction between intervening,
for policy reasons, to correct a decision rendered as
between contending parties, and legislating for
general public purposes (at page 752 S.C.R.), yet
he was then free to lump the two functions to
gether as a simply legislative function. As if to
confirm that characterization of function, when
Estey J. asked if there were a duty to observe
natural justice or at least a lesser duty of fairness
(at page 745 S.C.R.), he ultimately answered in
the negative (at pages 755-756 S.C.R.) because
"in so doing, the Cabinet . .. must be free to
consult all sources which Parliament itself might
consult had it retained this function". That is to
say, because the power to intervene inter partes is
blended or lumped in with the power to legislate,
and in legislating the legislator is not obliged (at
least between elections) to consult everyone or
hear everyone, then, His Lordship concluded, that
durable basic principle of fundamental justice audi
alteram partem did not constrain the Governor in
Council when intervening in a CRTC decision
made inter partes. No doubt Mr. Justice Estey
declared the law as it had stood on October 7,
1980, but such an analysis is no longer valid in
1988.
Today especially, because of the persistent
labours of the executive and legislative branches of
Canadian governments we are constitutionally
described as the very antithesis of a state in which
arbitrary, despotic or autocratic powers, such as
are found in subsection 64(1), are dished out and
left in the hands of any State board, commission or
other tribunal. It is not too bold to suggest that
Parliament, in reposing such powers in any person
or body of persons, including the Cabinet, must be
taken to expect that those powers in their exercise
will be interpreted in consonance with the Consti
tution and the tenor of the law.
The plaintiffs emphasized section 15 of the
Charter as their basis of attack on Order in Coun
cil P.C. 1988-762. They have little comfort in that
provision for it essentially exacts of all persons in
authority to treat similarly people who are similar
ly situated in terms of status, plight or legal posi
tion. Section 15, in force since April 17, 1985,
declares that every individual is equal before and
under the law, having the right to equal protection
and benefit of the law without discrimination as to
various human attributes and characteristics.
Section 15 does not guarantee corporations any
rights of equality or non-discrimination. That
proposition was stated positively although paren
thetically by a unanimous panel of this Court's
Appeal Division in Smith, Kline & French
Laboratories Ltd. v. Canada (Attorney General),
[1987] 2 F.C. 359; (1986), 27 C.R.R. 286; 34
D.L.R. (4th) 584; 12 C.P.R. (3d) 385; 78 N.R. 30
where at pages 364 F.C. in footnote 2; 290 C.R.R.;
588 D.L.R; 388 C.P.R.; 30 N.R., the Court held:
Any possible problems resulting from the attempt by corpo
rate plaintiffs to assert rights which can only be enjoyed by
individuals are resolved by the Trial Judge's finding, not put
in issue on appeal, that the individual plaintiffs possessed the
necessary standing to assert the claims in their own behalf.
An application for leave to appeal to the Supreme
Court of Canada was dismissed: [1987] 1 S.C.R.
xiv. First of all none of the parties or interveners
can assert a right of equality to the Sovereign, by
whatever designation of The Queen, the Crown,
the Governor General in Council, the Government
of Canada or any of its emanations or the various
boards, commissions or other tribunals which are
creatures of statute. So it can be taken as estab
lished in the following jurisprudence: R. v. Stod-
dard (1987), 59 C.R. (3d) 134 (Ont. C.A.), per
Tarnopolsky J.A. at page 145; Ominayak v.
Norcen Energy Resources Ltd. (1987), 83 A.R.
363 (Q.B.) and Leighton v. Canada, (F.C.T.D.
T-165-85, May 18, 1988 not yet reported).
Here, the only party who is an individual, the
plaintiff Arthur Milner has made out no case to be
treated equally with any similarly situated
individual. Like the two corporate interveners, he
was not a party to the proceedings before the
CRTC. Howerver, unlike BCE or BCI, neither
was Mr. Milner a party or even a would-be party
to the proceedings undertaken pursuant to subsec
tion 64(1). The corporate parties herein appear to
be relatively similarly situated but section 15 of
the Charter holds nothing for or against any of
them since it operates in the realm of quintessen-
tially human, not corporate, rights. Thus the plain
tiffs' invocation of section 15 of the Charter as a
basis of attack on the Cabinet's promulgation of
P.C. 1988-762 simply fails on that ground.
The arguments of all counsel and the question
ing of them by the Court ranged much further
than section 15 of the Charter. In ordinary adver
sary litigation the Court is not obliged to come to
the rescue of a litigant whose pleadings are inept
or otherwise off the target. However as was most
clearly implied by Mr. Justice Beetz for the unani
mous Supreme Court of Canada in Manitoba
(Attorney General) v. Metropolitan Stores Ltd.,
[1987] 1 S.C.R. 110, at page 135, in constitutional
cases courts "have found it necessary to rise above
the interests of private litigants up to the level of
the public interest". The Court, in a constitutional
case, must not allow a private litigant's case to
miscarry if that result would contort or contradict
constitutional principles or imperatives. So
although the plaintiffs started by invoking section
15 of the Charter, the Court directed the lawyers'
arguments also to the application of paragraph
2(e) of the Canadian Bill of Rights, R.S.C. 1970,
Appendix III. Even although the plaintiffs origi
nally made no reference to that provision of the
Bill of Rights, the Court bears a responsibility to
and under the Constitution to keep respect for the
Constitution paramount, and to save its principles
from being subverted, if such be the case, or
perhaps equally bad, from being overlooked or
ignored in the premises. So, the debate at trial
included discussion of paragraph 2(e) of the Bill of
Rights, as it ought to have done in these
circumstances.
The Canadian Bill of Rights is of quasi-consti
tutional import, unlike the Charter which is consti
tutionally entrenched and binding on all legisla
tures and governments in Canada, including the
federal Parliament and government. The Bill of
Rights is an Act of Parliament which received
Royal Assent on August 10, 1960. In its section 2,
the Bill of Rights enacts and declares how every
other law of Canada, that is, every federal law, is
to be construed and applied as to its meaning and
operation. Paragraph 2(e) ordains:
2. Every law of Canada shall, unless it is expressly
declared by an Act of the Parliament of Canada that it shall
operate notwithstanding the Canadian Bill of Rights, be so
construed and applied as not to abrogate, abridge or infringe
or to authorize the abrogation, abridgment or infringement
of any of the rights or freedoms herein recognized and
declared, and in particular, no law of Canada shall be
construed or applied so as to
(e) deprive a person of the right to a fair hearing in
accordance with the principles of fundamental justice for
the determination of his rights and obligations;
For many years it seemed to be assumed that
the Bill of Rights existed in a moribund state.
Then, in 1985, the equally divided approaches of
the Supreme Court of Canada invoked respectively
the Charter and the Bill of Rights by coming to
the one effective conclusion, in the previously cited
case of Singh. No submissions were made at the
time of its first hearing but, as in the case at bar,
the Supreme Court of its own motion called for
submissions upon the application of the Canadian
Bill of Rights. In the result, Mr. Justice Beetz
wrote for half of the number of the sitting judges
in support of the applicability of the Bill of Rights.
An important passage in the reasons of Beetz J.
is reported on page 228 S.C.R. and runs as follows:
... I am not absolutely clear whether or not it was conceded
by the Attorney General that the "rights" referred to in s.
2(e) of the Canadian Bill of Rights are not the same rights
or rights of the same nature as those which are enumerated
in s. 1, including "the right of the individual to life, liberty,
security of the person ... and the right not to be deprived
thereof except by due process of law".
Be that as it may, it seems clear to me that the ambit of s.
2(e) is broader than the list of rights enumerated in s. 1
which are designed as "human rights and fundamental free
doms" whereas in s. 2(e), what is protected by the right to a
fair hearing is the determination of one's "rights and obliga
tions", whatever they are and whenever the determination
process is one which comes under the legislative authority of
the Parliament of Canada. It is true that the first part of s. 2
refers to "the rights or freedoms herein recognized and
declared", but s. 2(e) does protect a right which is funda
mental, namely "the right to a fair hearing in accordance
with the principles of fundamental justice" for the determi
nation of one's rights and obligations, fundamental or not. It
is my view that, as was submitted by Mr. Coveney, it is
possible to apply s. 2(e) without making reference to s. l and
that the right guaranteed by s. 2(e) is in no way qualified by
the "due process" concept mentioned in s. 1(a). [Emphasis
not in original text.]
Further at pages 238 and 239, His Lordship is
reported as holding that the Bill of Rights applies
equally to statutory provisions enacted both before
and after the adoption of the Bill of Rights. More
over, in a recent unanimous decision of the Appeal
Division of this Court relating to sponsors' rights
to fair procedures before the Immigration Appeal
Board, Rajpaul v. Canada (Minister of Employ
ment and Immigration), [1988] 3 F.C. 157, para
graph 2(e) was further nourished, in this finding
expressed by Mr. Justice Mahoney [at page 159]:
The learned Trial Judge has cited considerable impeccable
authority in support of his conclusion that paragraph 2(e) of
the Canadian Bill of Rights [R.S.C. 1970, Appendix Ill]
applies to the hearing of the appeal. We will not repeat that
authority; we do agree with the conclusion.
Corporations are not included in the meaning of
"individuals", but, for better or for worse they are
subsumed into "persons". Thus paragraph 2(e)
can be seen to apply to individual human beings as
well as to corporations. The determination process
by the Governor in Council demonstrably comes
under the legislative authority of the Parliament of
Canada, being accorded by subsection 64(1) of the
NTPP Act.
Here, then, was a decision, CRTC 88-4 (preced-
ed by CRTC 86-17) made upon a fair adjudication
of issues raised by contending parties, in which
NAPO was a party whose standing and contribu
tion to the debate were recognized by the CRTC's
award of costs in NAPO's favour. Thereupon two
unregulated related companies went behind the
notional "curtain" in order to "whisper" a petition
into the Cabinet's ear, seeking rescission or varia
tion of an important part of that hard-fought, but
fairly fought, CRTC decision. It was "whispering"
in the sense that it was asserted to be a confiden
tial petition. NAPO perhaps ill-advisedly declined
to accept the condition of confidentiality and
thereby figuratively blinded itself, but it did ask, in
its letter to the Clerk of the Privy Council, for time
within which to prepare a counter-proposal.
Had the Governor in Council set a time for
reply or even acknowledged NAPO's request in
any manner, these reasons would be infinitely
shorter, if expressed at all. The Governor in Coun
cil was, after all, not about to embark upon a truly
legislative enactment in "a matter of public conve
nience or general policy", to hearken back to the
Supreme Court's judgment in Thorne's Hardware
Ltd. It was, rather, about to intervene into a
CRTC decision made between contending parties,
on what amounts to the privately whispered peti
tion of non-parties.
It was about to exercise its power of corrective
guidance in a particular matter of a determination
of the parties' rights and obligations. (There is no
consequence to the employment in paragraph 2(e)
of the personal pronoun in "his rights and obliga
tions". After all in subsection 64(1) in relating to
the Governor in Council, the expression "in his
discretion" is employed.) NAPO, representing
Bell's subscribers—so recognized by the CRTC—
and Bell itself were about to have their rights and
obligations determined by the Governor in
Council.
The Governor in Council went ahead, simply
ignoring NAPO's request to be "heard", in the
sense of making written submissions. In 1988, the
Governor in Council is obliged to respect the basic
canon of "natural justice", "fundamental justice"
or just plain ordinary fairness, audi alteram par-
tem—hear the other party, before making a deter
mination of the other party's rights and obliga
tions. The Governor in Council, in the absence of
emergency or security intelligence exigencies,
cannot lawfully do otherwise.
Order in Council P.C. 1988-762 effects such a
determination even although it refers the matter
back to the CRTC, because the Order in Council
fetters the considerations to be admitted by the
CRTC by restricting them to Bell's audited costs,
and forecloses wider considerations about which
the Minister, in earlier correspondence, said she
would not wish to leave a mistakenly restricted
impression. Thus Bell, to obtain the compensation
which the CRTC adjudged to be its due for the
sake of not raising the rates it charges to subscrib-
ers, and the subscribers, represented by NAPO,
have indeed had their rights and obligations deter
mined, despite the reference back to the CRTC.
Because all of this ordering, charging and regulat
ing occurs pursuant to laws of Canada, there is no
dilution or denigration of the very rights and obli
gations contemplated by paragraph 2(e) of the
Canadian Bill of Rights.
Order in Council P.C. 1988-762 must be
quashed, but without prejudice to the undoubted
right of the Governor in Council to address the
matter anew, but lawfully, by calling for responses
from everyone, person, firm or corporation who, or
which, was a party to the proceedings before the
CRTC. That is the only way to ensure to them—
whether they actually respond or not—the right to
a fair hearing in accordance with the principles of
fundamental justice for the determination of their
rights and obligations.
A cynic might ask whether there is any conse
quence if the Governor in Council does not pay
any attention to such responses. The answer can be
found in the reasons of Estey J. in the Inuit
Tapirisat case, fron which one may draw many
and various teachings. Thus, one could apply to
the imaginary cynic's question that which Estey J.
wrote at page 753 about the situation in which the
Governor in Council would make no examination
of the contents of a petition. The same would
apply to a response. It would simply be unlawful—
with all that entails—to ignore either a petition or
a reply from the other parties, because such disre
gard would constitute no "hearing" at all. The
Governor in Council habitually employs numerous
intelligent and wholly literate people to help in
such matters, its staff, as well as departmental
personnel concerned with the subject-matter, all
mentioned by Estey J. on page 753 S.C.R., to
whom it may lawfully resort for help in consider
ing replies as well as petitions.
In the United Kingdom, and in that part desig
nated administratively as England and Wales,
there is clearly no Canadian Bill of Rights in
force, only the common law of rights and obliga
tions. So, in Padfield v. Minister of Agriculture,
Fisheries and Food earlier cited, where a discre
tion to refer complaints was accorded by Act of
Parliament to the Minister, the same cynical ques
tion arose. Lord Pearce is reported, at pages 1053
and 1054 A.C. as writing:
It is quite clear from the Act in question that the Minister
is intended to have some duty in the matter. It is conceded
that he must properly consider the complaint. He cannot
throw it unread into the waste paper basket. He cannot
simply say (albeit honestly) "I think that in general the
investigation of complaints has a disruptive effect on the
scheme and leads to more trouble than (on balance) it is
worth; I shall therefore never refer anything to the commit
tee of investigation." To allow him to do so would be to give
him power to set aside for his period as Minister the obvious
intention of Parliament, namely, that an independent com
mittee set up for the purpose should investigate grievances
and that their report should be available to Parliament. This
was clearly never intended by the Act. Nor was it intended
that he could silently thwart its intention by failing to carry
out its purposes. I do not regard a Minister's failure or
refusal to give any reasons as a sufficient exclusion of the
court's surveillance. If all the prima facie reasons seem to
point in favour of his taking a certain course to carry out the
intentions of Parliament in respect of a power which it has
given him in that regard, and he gives no reason whatever for
taking a contrary course, the court may infer that he has no
good reason and that he is not using the power given by
Parliament to carry out its intentions. In the present case,
however, the Minister has given reasons which show that he
was not exercising his discretion in accordance with the
intentions of the Act.
In that same judgment, Lord Upjohn is reported in
these words, at page 1058 A.C.:
The Minister in exercising his powers and duties, conferred
upon him by statute, can only be controlled by a prerogative
writ which will only issue if he acts unlawfully. Unlawful
behaviour by the Minister may be stated with sufficient
accuracy for the purposes of the present appeal (and here I
adopt the classification of Lord Parker C.J., in the Divisional
Court): (a) by an outright refusal to consider the relevant
matter, or (b) by misdirecting himself in point of law, or (c)
by taking into account some wholly irrelevant or extraneous
consideration, or (d) by wholly omitting to take into account
a relevant consideration.
There is ample authority for these propositions which were
not challenged in argument. In practice they merge into one
another and ultimately it becomes a question whether for one
reason or another the Minister has acted unlawfully in the
sense of misdirecting himself in law, that is, not merely in
respect of some point of law but by failing to observe the
other headings I have mentioned. [Emphasis not in original
text.]
Such was the state of the common law in England
as long ago as 1968.
In Canada, today in 1988, the law not only
requires that all parties before the CRTC (other
than the petitioner(s) to the Governor in Council)
be accorded a reasonable and timely opportunity
to respond in writing to the petition, but also that
their responses (if any) be considered with as
much care and concern as the original petition
itself is considered. That is to say the petition and
any responses must be considered meticulously and
seriously. If the Governor in Council were to con
sign such responses, literally or figuratively, to the
waste paper basket, nothing in subsection 64(1)
could save that body from acting utterly unlawful
ly and it would be lawfully subject, in first instance
at least, to public exposure by anyone who would
know of it.
The duty to receive representations inescapably
imports the duty to accord serious consideration to
those representations, because any less consider
ation would clearly deprive the other parties of the
right to a fair hearing in accordance with the
principles of fundamental justice for the determi
nation of their rights and obligations. Any less
consideration, therefore, would violate paragraph
2(e) of the Canadian Bill of Rights. No party was
able to point to any provision of federal statute law
to the express effect that subsection 64(1) of the
NTPP Act can "operate notwithstanding the
Canadian Bill of Rights".
It should not have been necessary for this Court
alone to interpret the powers of the Governor in
Council under subsection 64(1), when intervening
in a decision made between discretely contending
parties, in accordance with the Bill of Rights.
Parliament itself might have so restrained the
application of subsection 64(1) by means of appro
priate amending legislation. Again, the law offi
cers of the Crown might have advised such
restrained interpretation and exercise of the statu
tory powers. The Court is not necessarily the
institution of first resort and it would prefer not to
be such.
Still, judicial review is legitimate at any stage of
the conflict despite the view, strongly held in some
quarters in the United States of America and even
in Canada, that judicial review is somehow anti-
majoritarian, a polite expression for undemocratic.
Indeed it is obvious that in Canada, the constitu-
tional instruments of judicial review in the Bill of
Rights and the Charter, have been composed and
emplaced by popularly elected legislators. It was
the Supreme Court in its majority judgment in Re
B.C. Motor Vehicle Act, written by Lamer J.
which, some would say "ironically" repudiated the
anti-majoritarian theory of judicial review. The
minority concurred in the result. The citation is
[1985] 2 S.C.R. 486 and, at page 497, there is
reported this cogent passage:
This is an argument which was heard countless times prior to
the entrenchment of the Charter but which has in truth, for
better or for worse, been settled by the very coming into force
of the Constitution Act, 1982. It ought not to be forgotten
that the historic decision to entrench the Charter in our
Constitution was taken not by the courts but by the elected
representatives of the people of Canada. It was those elected
representatives who extended the scope of constitutional
adjudication and entrusted the courts with this new and
onerous responsibility. Adjudication under the Charter must
be approached free of any lingering doubts as to its
legitimacy.
The same may be said of the general genesis of the
Canadian Bill of Rights and adjudication under it.
The legislature however is capable of undertaking
much more appropriate and comprehensive reform
of the law in consonance with the Bill of Rights
and the Charter, because the Court's role is con
fined to the piecemeal scope of each particular
case which happens to be presented from time to
time.
In conclusion then, Order in Council P.C. 1988-
762 will be declared to be null and void and of no
force and effect for infringement of the plaintiffs'
rights pursuant to paragraph 2(e) of the Canadian
Bill of Rights, without prejudice to any action on
the part of the Governor in Council to re-articulate
its powers pursuant to subsection 64(1) of the
NTPP Act on the same subject but in a lawful
manner, as prescribed herein.
Counsel for the respective parties and the inter-
veners were all in agreement about not awarding
any costs of, or incidental to, these proceedings.
The Court concurs.
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.