T-4135-77
Bell Canada (Plaintiff)
v.
Attorney General of Canada, Luc -André Couture,
Robert Simpson MacLellan and Frank Roseman
(Defendants)
Trial Division, Addy J.—Ottawa, February 9 and
15, 1978.
Practice — Application to strike statement of claim, and
alternatively, to strike one prayer for relief — Action for
declaration that Restrictive Trade Practices Commission
exceeded its jurisdiction, and for order that Attorney General
be instructed to order Commission to refrain from hearing
evidence — Attorney General claims there is no reasonable
cause of action and that the Federal Court is without jurisdic
tion under s. 28 of Federal Court Act — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28 — Combines
Investigation Act, R.S.C. 1970, c. C-23, s. 47.
The plaintiff (respondent in the present application) institut
ed an action in the Trial Division against the Attorney General,
and other defendants as members of the Restrictive Trade
Practices Commission. The statement of claim seeks a declara
tion that the Commission had exceeded its jurisdiction by
inquiring into certain of its practices and policies and prays for
an order requiring the Attorney General to instruct the Com
mission to refrain from hearing evidence or accepting submis
sions related to those policies and practices. The defendant, the
Attorney General, requests that the statement of claim be
struck on the grounds that it discloses no reasonable cause of
action and that the Trial Division has no jurisdiction under
section 28 of the Federal Court Act. Alternatively, defendant
requests that the plaintiff's second prayer be struck for the
same reasons.
Held, the defendant's first request is denied, but his alterna
tive request is allowed. Although the decision in the case at bar
to admit evidence on certain aspects of the plaintiff's operations
might possibly involve an excess of jurisdiction on the part of
the Commission, such a decision is not reviewable under section
28. Section 18(b) of the Federal Court Act, when read with
section 18(a), however, grants statutory jurisdiction to the
Court to entertain a claim for declaratory judgment against the
Attorney General. There is no fundamental jurisdictional bar
against plaintiff proceeding against either the Commission or
the Attorney General by way of ordinary action for a declara
tion. In the case of a statutory body charged with making an
inquiry on a certain subject, it might very well be that in
hearing evidence that pertains to matters so completely unrelat
ed to the objects for which it was constituted and which is not
probative of any of the issues which it is charged to determine,
it might exceed its jurisdiction and render itself subject to
intervention by a Court. It is possible that plaintiff could
obtain, after the evidence was in, a declaration that the Com-
mission had somehow exceeded its jurisdiction by inquiring into
certain general practices and policies of plaintiff. For that
reason, the statement of claim and its first prayer will not be
struck out. The Attorney General would have no au
thority whatsoever to take any measure to prevent the Commis
sion from hearing evidence or accepting submissions of any
kind. He has no statutory control over the Commission in the
performance of its investigatory duties and it would be com
pletely illegal as well as improper for him to take any such
action.
APPLICATION.
COUNSEL:
J. W. Brown, Q.C., and C. S. Goldman for
plaintiff.
G. Henderson, Q.C., and G. Kaiser for
defendants.
Paul Martineau, Q.C., for third party.
SOLICITORS:
Blake, Cassels & Graydon, Toronto, for
plaintiff.
Gowling & Henderson, Ottawa, for defend
ants.
Martineau, Leclerc, St -Amand & Gravel,
Hull, for third party.
The following are the reasons for order ren
dered in English by
ADDY J.: The plaintiff, the respondent in the
present application, instituted an action in the
Trial Division of this Court against the Attorney
General and also against the other defendants, the
latter as members of the Restrictive Trade Prac
tices Commission (hereinafter referred to as the
"Commission"). The statement of claim alleges
that the Commission is charged solely with investi
gating any monopolistic situation which might
exist regarding vertical integration of the telecom
munication equipment market in Canada.
In paragraph 13(a) of its statement of claim, the
respondent asks for a declaration that the Com
mission exceeds its jurisdiction by inquiring into
the practices and policies of the said respondent
and other regulated telephone companies with
respect to intercommunication networks and into
the reasons or desirability of such practices or
policies. In paragraph 13(b) it prays for an order
requiring the Attorney General to instruct the
Commission to refrain from hearing evidence or
accepting submissions relating to the above-men
tioned policies and practices.
The defendant, the Attorney General, has
launched the present application and requests that
the statement of claim be struck out on the
grounds that it discloses no reasonable cause of
action and that the Trial Division of this Court has
no jurisdiction by virtue of section 28 of the Fed
eral Court Act. The defendant alternatively
requests that paragraph 13(b) of the statement of
claim be struck out for the same reasons.
It was common ground between counsel for the
parties that the Commission in exercising its func
tions, pursuant to section 47 of the Combines
Investigation Act' is acting as a purely administra
tive board or commission, is merely discharging a
reporting function and is not exercising a judicial
or quasi-judicial function. I am of the same view.
(Refer O'Connor v. Waldron 2 .)
Where the basic function of a board or commis
sion is purely administrative and its final decision
need not be exercised in a judicial or quasi-judicial
manner, there is normally no obligation on it that
any of its interim procedural decisions or decisions
as to what matters will be investigated be exercised
in a judicial or quasi-judicial manner. Where a
person alleges that harm might result from any
such interim decision, including a decision as to
jurisdiction, the remedy is to sue for an injunction
or other relief and not to appeal the decision under
section 28 of the Federal Court Act as argued by
counsel for the Attorney General. Although the
decision in the case at bar to admit evidence on
certain aspects of the plaintiff's operations might
possibly involve an excess of jurisdiction on the
part of the Commission, such a decision is not the
type of decision reviewable under section 28. I am
not of the view that the statement of The Honour
able Chief Justice of this Court, when referring to
the type of decisions reviewable under section 28
in the case of Attorney General of Canada v.
' R.S.C. 1970, c. C-23.
2 [1935] A.C. 76.
Cylien 3 and in the case of Danmor Shoe Company
Ltd. v. Crosley Shoe Corp. Ltd. 4 to the effect that
"A decision of something that the statute expressly
gives such a tribunal `jurisdiction or powers' to
decide is clearly such a `decision' " (i.e., a decision
reviewable under section 28) applies to a decision
to hear evidence. The statement should not be
taken to mean that because a statute gives a
commission a right to decide what evidence it shall
hear in order to fulfill its investigative function
such a power ipso facto renders such a decision
reviewable under section 28. Most statutes setting
up investigative boards and commissions grant
powers to hear and consider evidence. It is there
fore proper to proceed by way of action against the
Commission in the present case.
I also find that section 18(b) of the Federal
Court Act, when read with section 18(a), does
grant statutory jurisdiction to the Federal Court of
Canada to entertain a claim for a declaratory
judgment against the Attorney General. I do not
agree as argued by counsel for the applicant that
the words "including any proceeding brought
against the Attorney General of Canada in subsec
tion (b)" must be taken to mean relief of another
nature since, in the absence of specific statutory
authority, no mandatory or executory order can be
issued against the Crown or any Minister of the
Crown when acting as such and, in effect, all
judgments against the Attorney General either as
a Minister of the Crown or as representing the
Crown must necessarily be declaratory or non-
mandatory in nature.
In the case of The Canadian Fishing Company
Limited v. Smiths the members of the Restrictive
Trade Practices Commission were sued as defend
ants in an ordinary action and the majority judg
ment of the Supreme Court of Canada held that
the plaintiff in that action was entitled to a decla-
3 [1973] F.C. 1166.
4 [1974] 1 F.C. 22.
5 [1962] S.C.R. 294.
ration against the Commission. (Refer judgment
of Locke J. at pages 308-309 of the above report
which judgment was concurred in by the majority
of the Court.)
As to a declaratory action taken in the Trial
Division under section 18 of the Federal Court Act
being the proper procedure when attacking a deci
sion of an investigative board see Lingley v.
Hickman 6 . In the case of Landreville v. The
Queen', although the jurisdiction of the Court to
grant declaratory relief is not challenged, the
Court declared that it was common ground that it
had jurisdiction and the Court obviously felt that
it had for it proceeded to grant the declaratory
judgment and consent does not create jurisdiction.
In addition, in Canadian Radio-Television Com
mission v. Teleprompter Cable Communications
Corp. 8 the Court of Appeal held at page 1269 that
the Trial Division of this Court did have jurisdic
tion to make a declaratory order.
There is, therefore, no fundamental jurisdiction
al bar against the plaintiff proceeding against
either the Commission or the Attorney General by
way of ordinary action for a declaration.
As to the relief claimed, it might appear at first
sight from the statement of claim that the question
raised is merely one of admissibility of evidence. If
such were the case, then obviously a court would
not interfere. However, as argued by counsel for
the respondent, in the case of a statutory body
charged with making an inquiry on a certain sub
ject, it might very well be that in hearing evidence
which pertains to matters so completely unrelated
to the objects for which it is constituted and which
is not probative of any of the issues which it is
charged to determine, it might exceed its jurisdic
tion and render itself subject to intervention by a
court. Such action or intervention might be for a
declaration as well as for an injunction.
I entertain some very serious doubts that the
plaintiff would succeed in obtaining the relief
granted in paragraph 13(a) of the statement of
6 [1972] F.C. 171.
' [1973] F.C. 1223.
8 [1972] F.C. 1265.
claim. However, on the basis of the facts pleaded
and upon considering the wording of section 47 of
the Combines Investigation Act, I am not satisfied
that it would not be possible for the plaintiff to
obtain, after the evidence was in, a declaration to
the effect that the Commission had somehow
exceeded its jurisdiction by inquiring into certain
general practices and policies of the plaintiff and
other companies or into the desirability of such
practices. For that reason alone, neither the state
ment of claim nor paragraph 13(a) thereof shall be
struck out at this preliminary stage. The principle
that where there exists a triable issue an applica
tion of this sort must fail, is too well established to
warrant authority being cited in support thereof.
I see no merit in the argument that the existence
of an unresolved action might prevent the Com
mission from carrying out its duties. A mere alle
gation that a commission is acting illegally even
where such an allegation is made in an action, is
no reason for a commission to refrain from per
forming its statutory duties. In any event, that
possibility is certainly not a valid ground for strik
ing out a statement of claim.
As to paragraph 13(b) of the statement of claim
the Restrictive Trade Practices Commission, in
exercising its jurisdiction under section 47 of the
Combines Investigation Act is performing a statu
tory duty imposed upon it by Parliament. It has
apparently been properly seized of the inquiry and,
in my view, the Attorney General of Canada
would have no authority whatsoever to take any
measure to prevent the Restrictive Trade Practices
Commission from hearing evidence or accepting
submissions of any kind. He has no statutory
control over the Commission in the performance of
its investigatory duties and it would be completely
illegal as well as improper for him to take any such
action. Paragraph 13(b) will therefore be struck
out.
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.