73-A-317
Ottawa Cablevision Limited, Terra Communica
tions Limited, Cable TV Limited, Pineridge Cable
TV Limited (formerly Oshawa Cable TV Ltd.),
Grand River Cable TV Limited, Tele-Cable du
Quebec Inc., National Cablevision Limited,
Transvision (Magog) Inc., Barrie Cable TV Lim
ited, Canadian Cable Television Association
(Applicants)
v.
Bell Canada (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
MacKay D.J.—Toronto, January 29 and 30,
1974.
Practice—Application for leave to appeal—Decision of
Canadian Transport Commission—Refusal to grant appli
cants relief against respondent in transmission of televi-
sion—Leave to appeal refused—An Act respecting the Bell
Telephone Company of Canada, s. 5, repealed and substitut
ed by 1967-68 S.C. c. 48, s. 6, in which the appeal provision
under the Railway Act is referred to—Railway Act, R.S.C.
1952, c. 234, s. 53(2) as repealed and substituted by the
National Transportation Act, R.S.C. 1970, c. N-17, s. 64(2),
and as amended by the Federal Court Act, R.S.C. 1970, c.
10 (2nd Supp.), Sch. II, item 32.
The applicants applied to the Canadian Transport Com
mission for relief against the respondent in terms of section
5 of the Bell Telephone Company of Canada Act, which
confers on the respondent powers to transmit television
programs by the applicants. The Commission denied the
application, for lack of jurisdiction. The applicants sought
leave to appeal.
Held, (Thurlow J. dissenting) leave to appeal should be
refused.
Per Jackett C.J.: There is no possible basis for reading
section 5 as conferring on the Canadian Transport Commis
sion jurisdiction to compel the respondent to provide facili
ties that it refuses to provide or jurisdiction to re-make
contracts between the respondent and its customers under
which the respondent is to provide facilities.
Per Thurlow J. (dissenting): Leave should be granted on
the issues of law involved in the applicants' request for
disallowance by the Commission, under section 5(5) of the
Bell Telephone Company of Canada Act, of contractual
arrangements referred to as the Partial System Agreement.
Per MacKay DJ.: The Commission's jurisdiction is lim
ited by section 5(4) and (5) to complaints as to restrictions
imposed in respect of equipment not provided by the
respondent, that is equipment belonging to the applicants.
As the relief claimed is only in respect of the ownership and
use of coaxial cable owned by the respondent, the Commis
sion has no jurisdiction.
APPLICATION for leave to appeal.
COUNSEL:
G. F. Henderson, Q.C., and W. G. Robinson
for applicants.
E. E. Saunders, Q.C., for respondent.
W. G. St. John for the Canadian Transport
Commission.
SOLICITORS:
Gowling and Henderson, Ottawa, for
applicants.
O'Brien, Hall and Saunders, Montreal, for
respondent.
W. G. St. John, Ottawa, for the Canadian
Transport Commission.
JACKErr C.J.—This is an application for
leave to appeal from a decision of the Canadian
Transport Commission on a question of jurisdic
tion, the answer to which turns on the meaning
of a provision added to the legislation relating to
the respondent (hereinafter referred to as
"Bell") by chapter 48 of the Statutes of Canada
of 1967-68, which provision reads as follows:
5. (1) It is hereby declared that subject to the provisions
of the Radio Act and of the Broadcasting Act and of any
other statutes of Canada relating to telecommunications or
broadcasting, and to regulations or orders made thereunder,
the Company has the power to transmit, emit or receive and
to provide services and facilities for the transmission, emis
sion or reception of signs, signals, writing, images or sounds
or intelligence of any nature by wire, radio, visual or other
electromagnetic systems and in connection therewith to
build, establish, maintain and operate, in Canada or else
where, alone or in conjunction with others, either on its own
behalf or as agents for others, all services and facilities
expedient or useful for such purposes, using and adapting
any improvement or invention or any other means of
communicating.
(2) Notwithstanding subsection (1), the Company and its
subsidiaries do not, however, directly or indirectly or by any
other means, have the power to apply for or to be the holder
of a broadcasting licence as defined in the Broadcasting Act
or of a licence to operate a commercial Community Antenna
Television Service.
(3) The Company shall, in the exercise of its power under
subsection (1), act solely as a common carrier, and shall
neither control the contents nor influence the meaning or
purpose of the message emitted, transmitted or received as
aforesaid.
(4) For the protection of the subscribers of the Company
and of the public, any equipment, apparatus, line, circuit or
device not provided by the company shall only be attached
to, connected or interconnected with, or used in connection
with the facilities of the Company in conformity with such
reasonable requirements as may be prescribed by the
Company.
(5) The Canadian Transport Commission may determine,
as questions of fact, whether or not any requirements pre
scribed by the Company under subsection (4) are reasonable
and may disallow any such requirements as it considers
unreasonable or contrary to the public interest and may
require the company to substitute requirements satisfactory
to the Canadian Transport Commission in lieu thereof or
prescribe other requirements in lieu of any requirements so
disallowed.
(6) Any person who is affected by any requirements
prescribed by the Company under subsection (4) of this
section may apply to the Canadian Transport Commission to
determine the reasonableness of such requirement having
regard to the public interest and the effect such attachment,
connection or interconnection is likely to have on the cost
and value of the service to the subscribers.
The decision of the Commission is subject to review and
appeal pursuant to the Railway Act.
Quite apart from its telephone business,
which is subject to regulation under the Railway
Act, pursuant to the powers referred to in sec
tion 5(1), Bell has contractual arrangements
with each of the applicant companies under
which such company is provided with facilities
that enable it to carry the necessary signals
from its antenna and processing plant to the
"taps" or "drops" whereby such signals are
carried into the premises of the subscribers to
its "cable" service.
The applicants find such contractual arrange
ments unsatisfactory because
(a) the contracts provide for use by the appli
cants of Bell's coaxial cable whereas the
applicants would prefer to have an arrange
ment under which they would have their own
coaxial cable attached to Bell's facilities;
(b) they object to a provision in the contracts
that limits them to carrying "messages" in
one direction; and
(c) they regard the amounts that they have to
pay to Bell under the contracts as excessive.
By the application giving rise to the decision
of the Commission in respect of which leave to
appeal is sought, the applicants, in effect, asked
the Commission
(a) to require Bell to enter into a contract with
each of the applicant companies under which
that company would have the right to attach
its own coaxial cable to Bell's facilities, and,
in any event,
(b) to review and revise the terms of the
contractual arrangement between Bell and
each applicant company from the point of
view of
(i) the limitation imposed on the signals sent
over the coaxial cable, and
(ii) the amounts that the applicant company
has to pay to Bell thereunder.
The applicants based this application to the
Commission on section 5 supra and the Com
mission dismissed the application on the ground
that it had no jurisdiction under section 5 to
grant the relief sought.
In this Court, the application for leave was
based on the submission that there is at least a
tenable argument for supporting the proposition
that the Commission has jurisdiction under sec
tion 5 to grant the relief sought.
As I do not agree with the reasoning whereby
the Commission reached the conclusion that
section 5 does not apply but I am of the view,
after the best consideration that I can give to
the submissions made by counsel for the appli
cant, that there is no tenable argument for con
cluding that section 5 gives the Commission
jurisdiction to grant any part of the relief
sought, I feel bound to explain briefly the posi
tion as I understand it.
It is common knowledge that Bell has a statu
tory charter to operate a telephone system in
Canada and that the operation of such system is
regulated by the Railway Act under which the
Canadian Transport Commission is the regulato
ry authority.
Section 5(1) supra is a declaratory provision
that makes it clear that Bell has a very broad
power to transmit, emit and receive signs and
intelligence of all kinds by electromagnetic sys
tems and to provide services and facilities for
such operations by others. If section 5(1) stood
by itself, it would authorize Bell to provide the
facilities that it provides to the applicant compa
nies but Bell would be under no obligation to
provide any such facilities to anybody except on
such terms as it might decide upon as being in
its own best business interest. (In other words,
Bell would, in respect of such facilities, be in
the same position as any other person operating
an unregulated business.) The question that has
to be considered, therefore, is whether the other
parts of section 5 change the situation in the
manner contended for by the applicants.
The other parts of section 5 that must be
considered are subsections (2), (3), (4) and (5).
In the first place, subsections (2) and (3) limit
the nature of the activities upon which Bell may
embark under subsection (1), and, in the second
place, subsection (4), read with subsection (5),
imposes a restriction on the manner in which
Bell's telephone system facilities (and possibly
other facilities) may be used. It is the nature of
this latter statutory restriction that must be
examined because it is subsections (4) and (5)
(which seem, superficially at any event, merely
to impose a fetter on what Bell may permit
others to do) upon which the applicants rely as
giving the Commission
(a) jurisdiction to compel Bell to provide
facilities that it refuses to provide, and
(b) jurisdiction to re-make a contract by
which Bell and a customer have contracted
that Bell will provide facilities.
As I understand the role of subsection (4) in
the scheme of section 5, the first three subsec
tions having conferred on Bell a power to carry
on business in a certain field, subsection (4)
imposes a limitation on what can be done in the
operation of such a business. That limitation is
that certain things "shall only be attached to .. .
or used in connection with" Bell's facilities' "in
conformity with such reasonable requirements
as may be prescribed" by Bell. When 'subsection
(4) is read with subsection (5), the limitation on
what can be done in the operation by Bell of a
business under section 5 becomes a rule that
certain things "shall only be attached to ... or
used" in connection with Bell's facilities "in
conformity with ... reasonable requirements"
to be prescribed by Bell subject to review by
the Commission.
I have thus spelled out the scheme of section
5, and particularly subsections (4) and (5), not
to express any concluded opinion as to what
may be debatable features, but to show that,
when it is read as a whole, there is no possible
basis for reading section 5, or any part of it, as
conferring on the Commission a jurisdiction to
compel Bell to provide facilities that it refuses
to provide or a jurisdiction to re-make contracts
between Bell and its customers under which
Bell is to provide facilities.
For the reasons given by MacKay D.J. and
for the above reasons, I am of opinion that the
application for leave should be rejected.
* * *
THURLOW J. (dissenting)—I would grant leave
to appeal on the issues of law involved in the
applicant's request for disallowance by the
Canadian Transport Commission under section
5(5) of the Bell Telephone Company of Canada
Act of provisions in the present contractual
' The fact that such limitation is imposed for the benefit
of Bell's subscribers and of the public shows that it is
principally, if not exclusively, Bell's telephone system facili
ties to which the limitation applies.
arrangements referred to as the Partial System
Agreement, which restrict the manner in which
equipment, apparatus etc., not provided by Bell,
may be used in connection with facilities of
Bell.
* * *
MACKAY D.J.—I agree with the conclusion of
my Lord The Chief Justice that leave to appeal
should be refused.
The respondent, Bell Canada, has exercised
the power given to it by section 5(1) to transmit
television programs by the applicant companies.
That subsection authorizes Bell to effect the
transmission either by means of its own facili
ties and equipment or by joint use of its equip
ment and that of the applicants. Bell elected to
use coaxial cable that it owned to which is
attached boosters and drops (connection
between the cable and the television user)
owned by the applicants.
One of the conditions imposed by Bell was
that the applicants would use the cable only for
one way transmission.
The complaints of the applicants are (1) that
they should be entitled to own their own cables
and have them attached to Bell telephone poles
or conduits and (2) that they should be allowed
two way transmission on the cable.
There is no complaint by the applicants in
respect of their own equipment, that is the
boosters and drops.
The jurisdiction of the Commission is limited
by subsections (4) and (5) to complaints as to
restrictions imposed in respect of equipment not
provided by the Bell Company, that is equip
ment belonging to the applicant companies.
As the relief claimed is only in respect of the
ownership and use of coaxial cable owned by
Bell I agree that the Commission had no
jurisdiction.
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.