A-498-88
Telecommunications Workers' Union (Appellant)
v.
Canadian Radio-television and Telecommunica
tions Commission and CNCP Telecommunica
tions (Respondents)
INDEXED AS: T.W.U. V. CANADA (CANADIAN RADIO-TELEVI
SION AND TELECOMMUNICATIONS COMMISSION)
Court of Appeal, Marceau, MacGuigan and Des-
jardins JJ.—Ottawa, September 7 and October 13,
1988.
Telecommunications — Jurisdiction of CRTC — Appeal
against CRTC decision exempting CNCP from requirement of
filing tariffs for majority of tolls — Whether statutory au
thority for exemption — S. 320(3) not authorizing CRTC to
grant exemption — Obligation to file tariffs ongoing — Inci
dental provision only empowering CRTC to allow company
having failed to file tariff or having tariff disallowed to
continue charging tolls while preparing to file new tariff.
Construction of statutes — Whether s. 320(3) of Railway
Act enabling CRTC to exempt company from requirement to
file tariffs for its tolls — Respondents contending phrase "in
respect of which there is default in such filing" supporting
CRTC's jurisdiction to grant exemption as ordinary meaning
of phrase is "in the absence of filing" — Structure of provision
and location of word "default" after enunciation of obligation
to file tariffs precluding that interpretation — Obligation to
file ongoing — Incidental provision enabling CRTC to allow
company having failed to file tariff or having tariff disallowed
to continue charging tolls while preparing to file new tariff
Parliament's intention to ensure reasonable tolls in market
place — Central feature of legislation maintained by having
tolls approved prior to becoming chargeable.
This was an appeal against the Canadian Radio-television
and Telecommunications Commission's decision exempting the
respondent, CNCP, from filing tariffs for a majority of its tolls.
The Commission considered subsection 320(3) of the Railway
Act as its authority to dispense with such filings.
Held, the appeal should be allowed.
The Commission's determination as to its jurisdiction was
wrong. The structure of the entire section, the location of the
saving provision, the use of the word "default" after enunciat
ing the obligation to file, preclude a reading of the enactment
whereby the Commission is authorized to dispense with the
filing of tolls. The obligation to file tolls is ongoing. The
incidental provision merely empowers the Commission to allow
a company which has failed to file its tariff or whose tariff was
disallowed to continue operating and charging tolls while pre
paring the required filing.
In intervening in the telecommunications sector, Parliament's
intention was to ensure the setting of just and reasonable tolls.
This policy was ensured by the requirement that all tolls be
approved prior to becoming chargeable.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act to amend the Railway Act, 1903, S.C. 1906, c.
42, ss. 30(2), 31, 32, 33, 34, 35.
An Act to amend the Railway Act with respect to Tele
graphs and Telephones and the jurisdiction of the
Board of Railway Commissioners, S.C. 1908, c. 61, s.
4(2).
Bill 19, An Act to Consolidate and Amend the Railway
Act, 2nd Sess., 13th Parl., 1919.
National Telecommunications Powers and Procedures
Act, R.S.C. 1970, c. N-17 (as am. by S.C. 1987, c. 34,
s. 302), s. 64 (as am. by R.S.C. 1970 (2nd Supp.), c.
10, s. 65, item 32).
Railway Act, R.S.C. 1906, c. 37, s. 356.
Railway Act, R.S.C. 1927, c. 170, s. 375(3).
Railway Act, R.S.C. 1952, c. 234, s. 380(3).
Railway Act, R.S.C. 1970, c. R-2, ss. 2 (as am. by R.S.C.
1970 (1st Supp.), c. 10, s. 33(1); idem, c. 35, s. 1; S.C.
1974, c. 12, s. 22; S.C. 1987, c. 34, s. 316), 320(2) (as
am. by R.S.C. 1970 (1st Supp.), c. 35, s. 2), (3), 376
(as am. by S.C. 1976-77, c. 28, s. 49, item 7).
The Railway Act, 1919, S.C. 1919, c. 68, s. 375(3).
AUTHORS CITED
Canada. House of Commons Debates, Vol. CXXXIV,
1919, 2nd Sess., 13th Parl., Geo. V, pp. 357, 936, 2617,
2641, 2929, 3073, 4012.
COUNSEL:
James R. Aldridge for appellant.
Greg Vankoughnett and Lorne Abugov for
respondent Canadian Radio-television and
Telecommunications Commission.
Michael H. Ryan for respondent CNCP
Telecommunications.
Anthony H. A. Keenleyside for intervenor
Telesat Canada.
Christopher Johnston, Q.C. for intervenor
British Columbia Telephone Company.
Laurence J. E. Dunbar for intervenor Cantel
Inc.
Glen W. Bell for intervenors Federated Anti-
Poverty Groups of British Columbia, Old Age
Pensioners' Organization, Senior Citizen's
Association and Council of Senior Citizen's
Organizations.
No appearance for intervenor Bell Canada.
SOLICITORS:
Rosenbloom & Aldridge, Vancouver, for
appellant.
Canadian Radio-television and Telecom
munications Commission, Ottawa, for
respondent Canadian Radio-television and
Telecommunications Commission.
Canadian Pacific Limited, Toronto, for
respondent CNCP Telecommunications.
Clarkson, Tétrault, Ottawa, for intervenor
Telesat Canada.
Bell Canada, Hull, for intervenor Bell
Canada.
The B.C. Public Interest Advocacy Centre,
Vancouver, for intervenors Federated Anti-
Poverty Groups of British Columbia, Old Age
Pensioners' Organization, Senior Citizens'
Association and Council of Senior Citizen's
Organizations.
Johnston & Buchan, Ottawa, for intervenor
British Columbia Telephone Company.
Charles M. Dalfen, Hull, for intervenor
Cantel Inc.
The following are the reasons for judgment
rendered in English by
MARCEAU J.: This is an appeal brought under
section 64 [as am. by R.S.C. 1970 (2nd Supp.), c.
10, s. 65, item 32] of the National Telecommuni
cations Powers and Procedures Act [R.S.C. 1970,
c. N-17 (as am. by S.C. 1987, c. 34, s. 302)] from
a decision of the respondent, the Canadian Radio-
television and Telecommunications Commission
(CRTC). The legal issue it raises is a narrow one
insofar as it relates solely to the interpretation of a
short and incidental phrase in one of the provisions
of the Railway Act, R.S.C. 1970, c. R-2; but a
basic aspect of the jurisdiction of the Commission
is involved and the importance of the case is
attested by the fact that no less than nine (9)
different parties have sought and been given leave
to intervene in the proceedings.'
Since early in the century, 2 all telephone and
telegraph companies within the legislative author
ity of Parliament have been subjected to a special
regulatory scheme, the main feature of which is a
requirement that all tolls to be charged by them,—
that is to say: all rates, terms and conditions
associated with their services (by definition of
section 2 [as am. by R.S.C. 1970 (1st Supp.),
c. 10, s. 33(1); idem, c. 35, s. 1; S.C. 1974, c. 12, s.
22; S.C. 1987, c. 34, s. 316] of the Railway Act)—
be previously approved by a specialized public
authority, today the CRTC. Subsections (2) [as
am. by R.S.C. 1970 (1st Supp.), c. 35, s. 2] and
(3) of section 320 of the Railway Act read as
follows:
' They are: CNCP Telecommunications, Telesat Canada,
Bell Canada, British Columbia Telephone Company, Cantel
Inc., Federated Anti-Poverty Groups of British Columbia, the
Old Age Pensioners' Organization, the Senior Citizen's Asso
ciation, and the Council of Senior Citizen's Organizations.
2 In 1906, Parliament decided to regulate telephone tolls by
making use of the administrative machinery already in place
dealing with the filing and approval of standard railway freight
tariffs. See sections 30-35 of An Act to amend The Railway
Act, 1903, S.C. 1906, c. 42. In 1908, telegraph tolls were
included in the mandatory tariff approval process. Parliament
consolidated and re-enacted its railway legislation in 1919 [The
Railway Act, 1919, S.C. 1919, c. 68]. Since that time, the
provision dealing with telephone and telegraph tariff-filing has
survived virtually unscathed through periodic revisions of the
Statutes of Canada. In effect, the subsection in dispute today
can readily be traced back more than eighty yearto its lineal
ascendant: [Railway Act] R.S.C. 1970, c. R-2, s. 320(3);
[Railway Act] R.S.C. 1952, c. 234, s. 380(3); [Railway Act]
R.S.C. 1927, c. 170, s. 375(3); [The Railway Act, 1919] S.C.
1919, c. 68, s. 375(3); [An Act to amend the Railway Act with
respect to Telegraphs and Telephones and the jurisdiction of
the Board of Railway Commissions] S.C. 1908, c. 61, s. 4(2);
[Railway Act] R.S.C. 1906, c. 37, s. 356; [An Act to amend
The Railway Act, 1903] S.C. 1906, c. 42, s. 30(2).
320....
(2) Notwithstanding anything in any other Act, all telegraph
and telephone tolls to be charged by a company, other than a
toll for the transmission of a message intended for general
reception by the public and charged by a company licensed
under the Broadcasting Act, are subject to the approval of the
Commission, and may be revised by the Commission from time
to time.
(3) The company shall file with the Commission tariffs of
any telegraph or telephone tolls to be charged, and such tariffs
shall be in such form, size and style, and give such information,
particulars and details, as the Commission, from time to time,
by regulation, or in any particular case, prescribes, and unless
with the approval of the Commission, the company shall not
charge and is not entitled to charge any telegraph or telephone
toll in respect of which there is default in such filing, or which
is disallowed by the Commission; but any company, prior to the
1st day of May 1908, charging telegraph or telephone tolls,
may, without such filing and approval, for such period as the
Commission allows, charge such telegraph or telephone tolls as
such company was immediately prior to the said date author
ized by law to charge, unless where the Commission has
disallowed or disallows such tolls.
The decision under attack, Telecom Decision
CRTC 87-12 [22 September 1987] is one whereby
the Commisison approved an application by the
respondent CNCP, a national supplier of telecom
munication services, for an exemption from the
requirement to file tariffs for most of its tolls. The
appellant herein and some other interveners had
opposed the application submitting inter alia that
there was no authority under the Act to grant the
exemption sought. The passage of the decision
dealing with these submissions read as follows:
The Commission has considered the submissions made with
regard to the scope of its authority pursuant to section 320(3)
of the Railway Act. In several past proceedings, the Commis
sion has determined that it has the authority to dispense with
the filing of tariffs. The Commission has made this determina
tion with respect to the provision by specified carriers of, for
example, cellular radio, multiline and data terminal equipment
and earth station services. Having carefully considered the
submissions of parties to this proceeding, the Commission sees
no reason to change its previous determinations that federally
regulated carriers may be permitted, pursuant to section 320(3)
of the Railway Act, to charge tolls for which tariffs have not
been filed.
It is this determination, reiterating the position
adopted by the Commission in recent decisions,'
which is put in question by this appeal.
The Commission has provided no legal analysis
for its conclusion that subsection 320(3) of the
Railway Act gave it authority to exempt a carrier
from the filing of tariffs, but it is obvious, on
reading the provision, that it could only rely on the
presence in the body of the provision of the words
"unless with the approval of the Commission". I
reproduce again subsection 320(3), this time in
both its versions and with some emphasis:
320... .
(3) The company shall file with the Commission tariffs of
any telegraph or telephone tolls to be charged, and such tariffs
shall be in such form, size and style, and give such information,
particulars and details, as the Commission, from time to time,
by regulation, or in any particular case, prescribes, and unless
with the approval of the Commission, the company shall not
charge and is not entitled to charge any telegraph or telephone
toll in respect of which there is default in such filing, or which
is disallowed by the Commission; ... [Emphasis added.]
Simply put, the arguments put forward by the
respondents in support of the decision are twofold.
It is said first that the words of the section, when
read in their ordinary sense, clearly support the
Commission's determination as to its jurisdiction.
This is so as soon as the phrase "in respect of
which there is default in such filing" is interpreted
as meaning, not "in the case of failure to file" as
contended by the appellant, but rather "in the
absence of filing" which is an acceptable meaning
and the one conveyed unequivocally by the French
version. It is argued further that the Commission's
interpretation is in keeping with the whole purpose
of the Act, which is the protection of the public
from abuses of monopoly power and the establish
ment of just and reasonable tolls, as well as in
keeping with the primary reason for giving the
3 See: Enhanced Services, Telecom Decision CRTC 84-18
[12 July 1984]; Cellular Radio Service, CRTC Telecom Public
Notice 1984-85 [25 October 1984]; and Telesat Canada—
Changes in Earth Station Services Regulation, Telecom Deci
sion CRTC 86-6 [24 March 1986].
regulator extended powers, namely to respond to
situations with appropriate flexibility.
I am not convinced.
I simply cannot read subsection 320(3) as giving
the Commission a power to exempt a company
from filing its tariffs. The structure of the entire
section, the relative location of the saving provi
sion, the use of the word "default" immediately
after enunciating the obligation to file in the
strongest terms, all preclude a reading of the
enactment in that sense. The same applies to the
French version where the incidental clause
"lorsque le tarif n'en a pas été ainsi déposé"
carries with it, especially because of the use of the
word "ainsi", the same connotation as the English
version with its word "default". The obligation to
file is an ongoing obligation, and failure of a
company to comply with it must in all cases bring
into play the sanctions provided in section 376 [as
am. by S.C. 1976-77, c. 28, s. 49, item 7]. What
was intended by the incidental provision (a provi
sion, be it said in passing, which was added at the
occasion of the 1919 consolidation, with apparent
ly not a single word of explanation) 4 was, in my
view, to empower the Commission to allow a com
pany which has failed to file its tariff or whose
tariff is disallowed (both situations, it should be
noted, are put on the same level), to charge tolls
and thereby carry on its operations during the time
required to prepare and file an original or a
renewed tariff.
4 The minister of Railways and Canals introduced Bill 19—
An Act to Consolidate and Amend the Railway Act—on
March 11, 1919. After second reading on March 28 it was
referred for detailed study to a committee struck for the
purpose. On May 20, when the Minister listed the 35 clauses
which the committee had changed, no mention was made of the
provision in question.
The House discussed the clauses of the Bill both immediately
preceding and following what would become section 375, but
the change made to that section of the former legislation
attracted no debate. See House of Commons Debate, Vol.
CXXXIV, 1919, 2nd Sess., 13th Parl. Geo. V, at and following
pp. 357, 936, 2617, 2641, 2929, 3073, 4012.
Having arrived at the conclusion that the text of
the provision cannot support the construction given
to it by the Commission, the policy arguments
advanced in aid of the decision based on the
context become of no avail. I will nevertheless in
order to express my views completely, suggest a
few comments with respect to them. While it is
obvious that the setting of just and reasonable tolls
was to a large extent what Parliament had in mind
when it decided to intervene in the telecommunica
tions sector, the purpose or raison d'être of its
legislation was not, however, to confide that task
to the carriers or to impose it on them in terms of a
direct legal obligation. Rather, the purpose of the
legislation was to adopt a particular scheme which
might assure that the tolls charged by companies
would remain just and reasonable in all market
conditions, competitive or otherwise. That scheme,
as I said in my opening statement, has as its
central feature a requirement that all tolls be
scrutinised and approved before becoming charge
able. Subsection 320(2) admits of no exception to
that requirement. The determination of the Com
mission, which would mean that it can now decide
whether to regulate telecommunications rates
through tariff filings and prior approval, or
through the sole operation of "the market place",
is in complete contradiction with the purpose and
history of the Act. However large may be the
powers bestowed on the Commission, it is trite to
say that they are limited and constrained by the
purpose and the scheme of the Act.
Of course, I am not disputing the Commission's
point of view that for certain services the rationale
for approval of the companies' rates has ceased to
exist. It may very well be desirable to proceed to a
sort of partial deregulation—although I would
have thought that if tolls are to remain subject to
review and potential revision, as claimed by the
Commission, some new form of publication for the
information of the customers and new means of
periodic inspection for the needs of the Commis
sion would have to be set up. But what is here
certain is that the very scheme of the Act is at
stake and a reconsideration of that scheme must
come from Parliament, not from this Court or the
Commission's own conception of how the statute
should be rewritten in light of changed circum
stances.
I would grant the appeal, set aside the decision
appealed from and refer the matter back to the
Commission for reconsideration on the basis that
subsection 320(3) of the Act does not give it power
to relieve a company from the obligation to file its
tariffs.
MACGUIGAN J.: I concur.
DESJARDINS J.: I concur.
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.