A-43-78
Bell Canada (Appellant) (Respondent)
v.
Challenge Communications Limited (Respondent)
(Applicant)
Court of Appeal, Heald, Urie and Ryan JJ. —
Ottawa, April 11, 12 and 24, 1978.
Communications — Jurisdiction — Bell Canada telephone
tariffs — Tariff concerning Automatic Mobile Telephone Ser
vice (AMTS) reserving right to supply equipment to Bell
Canada on rental basis, excluding option of Customer Owned
and Maintained (COAM) equipment — Unjust discrimination
claimed by COAM supplier — CRTC disallowed tariff and
ordered that new tariff proposals include COAM option and
that specifications for production of equipment compatible
with AMTS system be disclosed — Appeal on questions of law
and jurisdiction — Railway Act, R.S.C. 1970, c. R-2, ss. 320,
321 — National Transportation Act, R.S.C. 1970, c. N-17, ss.
45(2), 46(1), 57(1), 58, 64(2).
This is an appeal on questions of law and jurisdiction, under
section 64(2) of the National Transportation Act, against a
decision and order by the CRTC. The CRTC had disallowed
certain provisions of appellant's general tariff on the basis that
those provisions concerning AMTS were unjustly discriminato
ry and caused unreasonable advantage to appellant over
respondent. It also ordered appellant to submit new proposals
for tariff, including new options of ownership with AMTS, and
to provide specifications for equipment necessary for produc
tion of equipment compatible with Bell Canada's system. The
appellant, under its tariff, had reserved to itself the right to
supply AMTS and on a rental basis only; customer owned
mobile units would not be provided with automatic service.
Respondent specialized in providing and servicing COAM
equipment. Appellant raises six questions in this appeal: (1)
Did the CRTC err in law in finding that appellant acted in
breach of section 321(2)(a),(b),(c) of the Railway Act by
stipulating in its general tariff concerning AMTS that appel
lant alone would provide, install and maintain the radio equip
ment? (2) Did the CRTC err in law or exceed its jurisdiction
by ordering appellant to supply specifications necessary for the
design of equipment compatible with its system? (3) Did the
CRTC err in law and exceed its jurisdiction by ordering
appellant to prepare Mobile-Telephone Service tariff proposals
to include the COAM option? (4) Did the CRTC err in law
and exceed its jurisdiction by ordering preparation of tariff
proposals including a "roaming" option? (5) Did the CRTC err
in law in finding section 321(2)(a),(b),(c) of the Railway Act
applies to cases of alleged unjust discrimination? (6) Did the
CRTC err in law and exceed its jurisdiction by construing
section 321 of the Railway Act as meaning it had jurisdiction
between Bell Canada and competing suppliers of telephone
equipment and facilities?
Held, the appeals, with one exception, are dismissed. Ques
tion No. 1 is answered in the negative. General Regulations
No. 7 and No. 9, when read in context of all the Regulations
and the applicable sections of the Railway Act, permit and
allow the CRTC to deal with matters of ownership and mainte
nance of telephone service and with matters relating to the
connection of COAM equipment to the appellant's work as
component parts of the Bell Tariffs which are required to be
approved by the CRTC. When the Regulations are interpreted
in this fashion, no conflict arises. Question No. 5 is answered in
the negative. Section 321(2) of the Railway Act prohibits
discrimination against "any person or company". Appellant is
precluded, by the Act, from giving to itself any undue or
unreasonable preference or advantage. Respondent is also en
titled to the protection of section 321 when the clear and
unambiguous words "any ... company" are used. This section,
with its plain and ordinary meaning, applies to any person or
company, not just customers. Question No. 2 is answered in the
negative. The CRTC's order for substitution of a new tariff
permitting COAM equipment in the AMTS field could be
frustrated and rendered ineffective if the specifications were to
be kept secret, for the COAM-AMTS equipment must connect
with appellant's telephone system. Authority for making this
portion of the order is to be found in the National Transporta
tion Act, sections 45(2), 46(1) and 57(1) and the Railway Act,
section 321(5), since interconnecting specifications are neces
sarily a matter relating to tariffs. Question No. 3 is answered in
the negative for reasons similar to those concerning Question
No. 2. Question No. 4 is answered in the affirmative. The
question of "roaming" was not an issue in the hearings before
the CRTC. It is unnecessary for this Court to determine
whether the CRTC had power to make this portion of the
order, since the parties and the intervener cannot be said to
have been heard on this issue. Question No. 6 need not be
answered as it proceeds from an unfounded assumption.
Although the effects of the order might be to equalize competi
tion, this fact does not render invalid an order validly made in
the proper exercise of jurisdiction.
APPEAL.
COUNSEL:
E. E. Saunders, Q.C. and P. J. Knowlton for
appellant.
H. Soloway, Q.C. and J. , Shields for
respondent.
T. G. Heintzman and Peter S. Grant for
CRTC.
Gordon F. Henderson, Q. C. and Gordon E.
Kaiser for Director of Investigation and
Research, Combines Investigation Act.
SOLICITORS:
Bell Canada Legal Department, Montreal, for
appellant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent.
McCarthy & McCarthy, Toronto, for CRTC.
Gowling & Henderson, Ottawa, for Director
of Investigation and Research, Combines
Investigation Act.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is an appeal on questions of law
and jurisdiction under section 64(2) of the Nation
al Transportation Act, R.S.C. 1970, c. N-17, pur
suant to leave to appeal granted to the appellant
by this Court. The appeal is against a decision and
order by the Canadian Radio-television and Tele
communications Commission (CRTC) on Decem-
ber 23, 1977, 3 C.R.T. 489, (Telecom Decision
CRTC 77-16). By this decision, CRTC disallowed
certain provisions of the appellant's general tariff
on the basis that those provisions which concerned
Automatic Mobile-Telephone Service (AMTS)
were unjustly discriminatory against, and caused
undue or unreasonable prejudice or disadvantage
to the respondent, and gave an undue or unreason
able preference or advantage to the appellant over
the respondent. The decision also ordered the
appellant to report to CRTC with proposals for the
implementation of a new Mobile-Telephone Ser
vice tariff which would include certain features
and options related to automatic telephone service
not previously included in the appellant's tariff,
and ordered the appellant to supply to CRTC, to
the respondent and to any other person requesting
same, a copy of all specifications of the Access 450
equipment and any other equipment or facilities
necessary for the design and production of compat
ible ultra-high frequency (UHF) mobile telephone
service equipment. The "Access 450" equipment is
the name of the new type of mobile telephone
radio equipment introduced by the appellant in
Canada for use in automatic telephone radio ser-
vice. The decision further ordered both the appel
lant and respondent to report to CRTC not later
than February 13, 1978, with proposals for a
schedule for the implementation of a new Mobile-
Telephone tariff including, with respect to the
appellant, an offering of the option of automatic
(dial-up) UHF mobile customer owned and main
tained equipment compatible with the North
American signalling system.
The relevant facts in this appeal are not in
dispute. On April 29, 1977, the appellant filed
with CRTC four revised pages of its General
Tariff, those pages bearing the general title of
"Mobile Telephone Service" and dealing with two
types of mobile telephone service, namely, Manual
Mobile-Telephone Service (MMTS) and Auto
matic Mobile-Telephone Service (AMTS). In
motor vehicle mobile telephone service, there is
equipment located in the automobile, known as the
"radio equipment", and land equipment known as
the "base station". The radio equipment in the
automobile communicates by radio with the base
station, which forms part of the appellant's tele
phone network. While there are certain other types
of mobile-telephone service, such as that used by
water craft, the present appeal concerns only the
type of mobile-telephone service used by owners of
motor vehicles. The equipment in the automobile
consists essentially of two units, one of which is
known as the "control head" and the other which
is transmitting and receiving radio equipment. The
control head usually includes a hand set similar to
an ordinary home telephone hand set, which fits
into a cradle on a piece of equipment which
appears usually in the front part of the interior of
the automobile, within easy reach of the driver.
The transmitting and receiving equipment is usual
ly, but not necessarily, located in the automobile
trunk. The control head is the equipment whereby
the automobile driver signals to the base station
and he, of course, carries on his conversation using
the hand set. The control head is connected to the
transmitting and receiving equipment and there is
usually an exterior aerial on the automobile to
assist in transmission and reception.
Manual Mobile-Telephone Service (MMTS)
has been offered by the appellant in its general
tariff for many years, but up until the amendments
filed on April 29, 1977, and referred to supra, the
tariff also provided that the customer could elect
to provide, install and maintain his own manual
radio equipment in his automobile. Such equip
ment could be obtained by the customer from any
supplier. When a customer chooses to provide,
install and maintain his own radio equipment in
his automobile, the equipment is referred to as
"COAM" (Customer Owned and Maintained)
equipment. The respondent is a seller and supplier
of COAM equipment, mostly in the Toronto-
Hamilton area, but with some business in other
parts of Ontario and Quebec.
The new tariff pages filed by the appellant on
April 29, 1977 included an offering of AMTS for
the first time. AMTS was designed to use UHF
channels rather than the VHF channels used in
MMTS. AMTS also offered direct dial capability,
that is the ability to make and receive calls in the
automobile without telephone operator involve
ment when the automobile was in its home area.
This was a new feature, since MMTS requires
communication with the operator on each call.
In the proposed amendment filed on April 29,
1977, the appellant advised CRTC that it did not
propose to provide customer owned mobile units
with automatic service, proposing instead that it
would provide, install and maintain, on a rental
basis only, all such mobile units. These new tariff
pages were approved by CRTC to be effective July
20, 1977. Immediately thereafter, the appellant
engaged in an advertising campaign promoting
AMTS on a rental basis. Under the amended
tariff, the appellant had reserved to itself the
exclusive right to supply AMTS and on a rental
basis only. The appellant continued to offer the
MMTS service on the same basis as before.
The respondent specializes in the provision and
servicing of the COAM equipment referred to
supra. By July of 1977, the majority of customers
using MMTS equipment were COAM users.
On September 26, 1977, the respondent filed
with the CRTC an application challenging appel
lant's amended tariff alleging, inter alia, that it
was unjustly discriminatory and that the appellant
had thereby created an undue preference or advan
tage in its favour and that such action by the
appellant was contrary to section 321 of the Rail
way Act, R.S.C. 1970, c. R-2.
The CRTC held hearings on the respondent's
application in Ottawa from November 8, 1977 to
November 16, 1977. The evidence adduced at the
hearing . established that as of July 1977, there
were 1,588 users of MTS in the Toronto-Hamilton
area, of which 1,264 were COAM users. The
evidence also established that in the few months
following July 25, 1977, the date on which Bell's
amended tariff concerning AMTS was approved,
Bell obtained some 300 AMTS customers.
The appellant raises six questions of law or
jurisdiction in this appeal and submits that each of
those questions should be answered in the affirma
tive. On the other hand, the respondent and the
Director of Investigation and Research, Combines
Investigation Branch (who intervened in the hear
ing before the CRTC pursuant to section 27.1 of
the Combines Investigation Act, R.S.C. 1970, c.
C-23, and participated fully therein and appears in
this appeal pursuant to Rule 1313) both submit
that all six questions should be answered in the
negative. Counsel for the Commission makes a
similar submission. I will now deal with those six
questions:
Question No. 1
Did the Commission err in law in finding that
the appellant, while acting pursuant to Rules 7
and 9 of its General Regulations, acted in
breach of Subsections (a) (b) and (c) of Section
321(2) of the Railway Act, by stipulating with
regard to AMTS in its Revised Page 410 of its
General Tariff, that the appellant would pro
vide, install and maintain the radio equipment
for Automatic mobile units, while not permit
ting others to do so?
In support of its submission herein, the appellant
alleges error in law by CRTC in finding that the
appellant breached the provisions of section 321(2)
of the Railway Act, R.S.C. 1970, c. R-2 (as
amended) because, in its submission, it was acting
pursuant to and in compliance with Rules 2, 7 and
9 of its General Regulations which were prescribed
by a predecessor agency to the CRTC, upon the
application of the appellant, as the terms and
conditions under which traffic could be carried by
the appellant. The authority for these Regulations
was a predecessor section to what is now subsec
tion 322(3) of the Railway Act. Subsequently,
with the leave of the Board of Transport Commis
sioners for Canada, the Regulations were pub
lished three times in the Canada Gazette, pursuant
to a predecessor section to what is now section 62
of the National Transportation Act. The relevant
provisions herein referred to read as follows:
Rule 2.—(a) Telephone service and equipment offered by the
Company's Tariffs, when provided by the Company, shall be
furnished upon and subject to the terms and conditions con
tained in
(i) these Regulations,
(ii) all the applicable Tariffs of the Company, and
(iii) the written application (if any) to the extent that it is
not inconsistent with these Regulations or said Tariffs,
all of which shall be binding on the Company and its
customers.
(b) Any change in these Regulations or in the Company's
Tariffs shall contemporaneously with the effective date thereof
effect the modification of the obligations of the Company and
its customers towards each other to conform thereto. A change
in rates is applicable on and from its effective date notwith
standing the fact that the customer may have been billed
and/or have paid in advance at the previous rate.
Rule 7.—Except where otherwise stipulated in its tariffs or by
special agreement, the Company shall provide and install all
poles, conduits, plant, wiring, circuits, instruments, equipment,
fixtures and facilities required to furnish service and shall be
and remain the owner thereof, and shall bear the expense of
ordinary maintenance and repairs.
Rule 9.—The Company's equipment and wiring shall not be
rearranged, disconnected, removed or otherwise interfered with,
nor shall any equipment, apparatus, circuit or device which is
not provided by the Company be connected with, physically
associated with, attached to or used so as to operate in conjunc
tion with the Company's equipment or wiring in any way,
whether physically, by induction or otherwise, except where
specified in the Tariffs of the Company or by special agree
ment. In the event of a breach of this Rule, the Company may
rectify any prohibited arrangement or suspend and/or termi
nate the service as provided in Rule 35.
Subsection 322(3) of the Railway Act:
322. . ..
(3) The Commission may by regulation prescribe the terms
and conditions under which any tariff may be carried by the
company.
Section 62 of the National Transportation Act:
62. Any rule, regulation, order or decision of the Commis
sion, when published by the Commission or by leave of the
Commission, for three weeks in the Canada Gazette, and while
the same remains in force, has the like effect as if enacted in
this Act, and all courts shall take judicial notice thereof.
Thus, it is appellant's submission that the CRTC
"erred in their interpretation of the legal status of
Bell Canada's General Regulations, and in not
interpreting Section 321 of the Railway Act in
conjunction with the provisions of Rules 7 and 9 of
the Bell Canada's General Regulations." (Appel-
lant's factum, page 41.) And again, on page 42 of
its factum, the appellant submits:
101. The CRTC, in its Decision, has relied exclusively on
Section 321 to justify both its Decision and the Orders it has
issued. In the passages of the Decision just quoted, the CRTC
appears to treat Rules 2, 7 and 9 of Bell Canada's General
Regulations as "second-class citizens", not having the true
status of statutory provisions. Rather than attempting to inter
pret Rules 2, 7 and 9 as provisions of law to be read with the
other "substantive" provisions of the Railway Act, the Com
mission appears to downgrade the importance of the provisions.
Section 321 of the Railway Act reads as follows:
321. (1) All tolls shall be just and reasonable and shall
always, under substantially similar circumstances and condi
tions with respect to all traffic of the same description carried
over the same route, be charged equally to all persons at the
same rate.
(2) A company shall not, in respect of tolls or any services or
facilities provided by the company as a telegraph or telephone
company,
(a) make any unjust discrimination against any person or
company;
(b) make or give any undue or unreasonable preference or
advantage to or in favour of any particular person or com
pany or any particular description of traffic, in any respect
whatever; or
(c) subject any particular person or company or any particu
lar description of traffic to any undue or unreasonable preju
dice or disadvantage, in any respect whatever;
and where it is shown that the company makes any discrimina
tion or gives any preference or advantage, the burden of
proving that the discrimination is not unjust or that the prefer
ence is not undue or unreasonable lies upon the company.
(3) The Commission may determine, as questions of fact,
whether or not traffic is or has been carried under substantially
similar circumstances and conditions, and whether there has, in
any case, been unjust discrimination, or undue or unreasonable
preference or advantage, or prejudice or disadvantage, within
the meaning of this section, or whether in any case the com
pany has or has not complied with the provisions of this section
or section 320.
(4) The Commission may
(a) suspend or postpone any tariff of tolls or any portion
thereof that in its opinion may be contrary to section 320 or
this section; and
(b) disallow any tariff of tolls or any portion thereof that it
considers to be contrary to section 320 or this section and
require the company to substitute a tariff satisfactory to the
Commission in lieu thereof or prescribe other tolls in lieu of
any tolls so disallowed.
(5) In all other matters not expressly provided for in this
section the Commission may make orders with respect to all
matters relating to traffic, tolls and tariffs or any of them.
(6) In this section and section 322, the expressions "compa-
ny", "Special Act", "toll" and "traffic" have the meanings
assigned to them by section 320.
The applicable portion of section 320 of the Rail
way Act reads as follows:
320. (1) In this section
"company" means a railway company or person authorized to
construct or operate a railway, having authority to construct
or operate a telegraph or telephone system or line, and to
charge telegraph or telephone tolls, and includes also tele
graph and telephone companies and every company and
person within the legislative authority of the Parliament of
Canada having power to construct or operate a telegraph or
telephone system or line and to charge telegraph or telephone
tolls;
The appellant submits that the CRTC has, in
effect, decided that the provisions of section 321
supra, override the provisions of Rules 7 and 9 of
Bell Canada's General Regulations, and that, in so
deciding, the CRTC has erred in law.
Despite the very able argument of appellant's
counsel, I am not persuaded that this submission is
a valid one. As stated by counsel for the Commis
sion, to adopt this view would result in this appel
lant being given immunity from the tariff approv
ing function of the Commission which role brings
section 321 of the Railway Act into play. A perus
al of the General Regulations of the appellant
(Case pp. C101 and following) makes it clear, in
my view, that this appellant is to be regulated
through tariffs approved by the CRTC. Section 1
of the enabling order, for example, describes the
General Regulations as being the terms and condi
tions under which the appellant "shall furnish to
the public the telephone service and equipment
described in its effective Tariffs from time to time
filed with and approved by the Board." [Emphasis
added.] Rule 2 of the General Regulations pro-
vides for telephone service and equipment offered
by the Company's Tariffs to be furnished subject,
inter alia, to the terms and conditions contained in
"(ii) all the applicable Tariffs of the Company".
Rule 7 uses the qualifying words "Except where
otherwise stipulated in its tariffs ...". Rule 9 uses
the qualifying words: "except where specified in
the Tariffs of the Company . ..". [The emphasis is
added in the quotations from Rules 2, 7 and 9.] It
seems clear from the general scheme of the Rules
that, with respect to any dealing with a customer,
the appellant has to have a tariff and that tariff, to
be effective, requires Commission approval. I
agree with counsel for the Commission that the
system contemplated under Bell's General Rules
and Regulations is based on approved tariffs.
Accordingly, it is my firm opinion that the General
Regulations and the Rules passed thereunder are
not intended to have paramountcy over such sub
stantive provisions of the Railway Act as section
321 thereof when considering the tariffs filed by
the appellant and thus said Rules do not have the
effect of "insulating" the appellant from the Com
mission's tariff approving function.
Furthermore, it should be noted that Rules 7
and 9, relied on by the appellant are Rules and
Regulations passed under the authority of the
Railway Act. As such, they cannot operate as
amendments of that statute'. Where there is a
conflict between one of the provisions of a statute
and a regulation passed thereunder, the statute
itself is treated as supplying the governing con
sideration and the regulation is treated as being
subordinate to it 2. A perusal of the Belanger case
(supra) makes it clear that all five Justices held
that in such a case of conflict, the provisions of the
statute will govern and the regulations, in so far as
they are inconsistent with sections of the Act must
give way. However, Anglin J., in the Belanger case
' See: Belanger v. The King (1916) 54 S.C.R. 265 at p. 268
per Sir Charles Fitzpatrick C.J.
2 See: Belanger v. The King (1916) 54 S.C.R. 265 at p. 276
per Duff J. (as he then was).
(supra) expressed the further view that such a
regulation should, if possible, be given a construc
tion which will not conflict with the statute'. In
my view, such a construction is possible in the case
at bar. Rule 7 imposes an obligation upon the
appellant to provide, install and maintain its own
works to the extent necessary to furnish service to
its customers but makes the exception referred to
earlier that such matters of ownership and mainte
nance are expressly contemplated to be dealt with
in the tariffs which require Commission approval.
Likewise Rule 9 which, prima fade, prohibits any
re-arrangement of appellant's equipment and
wiring and further prohibits any one from connect
ing with the appellant's works expressly contem
plates that the connection of COAM equipment is
one of the matters to be dealt with in the tariffs
required to be approved by the Commission.
Accordingly, while I consider the Belanger case
(supra) to be applicable to this case, notwithstand
ing the strenuous efforts of appellant's counsel to
distinguish it, I have the view that the wording of
Rules 7 and 9 expressly contemplates a consider
ation of the matters therein dealt with in the
appellant's tariffs and such a consideration brings
section 321 of the Railway Act into play since, on
the facts herein found by the Commission, the
Commission has found as a fact that the appellant
has breached the provisions of section
321 (2)(a),(b) and (c) in so far as the respondent is
concerned 4 .
Appellant's counsel relied on the case of B.G.
Linton Construction Ltd. v. C.N. 5 and in particu
lar the comments of Ritchie J. at page 688 relating
to certain orders passed and published in the
Canada Gazette under the predecessor section to
section 62 of the National Transportation Act that
"they thereafter had the force of law as if they had
been enacted in the Railway Act itself." In my
view of the matter however, the Linton case
(supra) does not assist the appellant here because,
in Linton (supra), the Supreme Court was not
called upon to decide a conflict between a regula-
' See: Belanger v. The King (1916) 54 S.C.R. 265 at p. 280
per Anglin J.
4 There was ample evidence to justify these findings, particu
larly in view of the fact that the appellant chose not to adduce
any evidence before the Commission.
5 [1975] 2 S.C.R. 678.
tion and a section of the Railway Act. What was
decided in that case was that an Order of the
Board of Railway Commissioners had the force of
law as part of the Railway Act upon due publica
tion in the Canada Gazette. I do not read the
Linton case (supra) as being inconsistent with the
Belanger case (supra) where, as in the case at bar,
there is a possibility of conflict between a regula
tion passed under the Railway Act and a section of
the Railway Act itself. Appellant's counsel also
relied on the case of The Corporation of the City
of Ottawa v. The Corporations of the Town of
Eastview and the Village of Rockcliffe Park 6 .
That case, in my view, has no application to the
situation at bar because in that case, the conflict
being considered was between a statute of the
Province of Ontario and the Special Acts of the
Legislature concerning the waterworks systems of
the City of Ottawa. That seems to me to be quite a
different situation from the instant case where the
possible conflict is between a regulation and a
substantive section of the same Act. To summa
rize: I have concluded that Bell General Regula
tions No. 7 and No. 9 when read in the context of
all of the regulations and the applicable sections of
the Railway Act permit and allow the Commission
to deal with the matters of ownership and mainte
nance of telephone service and with matters relat
ing to the connection of COAM equipment to the
appellant's work as component parts of the Bell
Tariffs which are required to be approved by the
Commission. When the Regulations are interpret
ed in this fashion, no conflict arises. If, however, a
conflict were to arise and the question of para-
mountcy needed to be determined, I would, on the
authority of the Belanger case (supra), hold that
section 321 of the Railway Act governs and that
the Rules in question must give way. For the
foregoing reasons, Question No. 1 should, in my
opinion, be answered in the negative.
Question No. 5
Did the Commission err in law in finding that
Subsections (a),(b) and (c) of Section 321(2) of
the Railway Act apply to cases of alleged unjust
6 [1941] S.C.R. 448 at p. 461.
discrimination, alleged undue or unreasonable
preference or advantage, or alleged undue or
unreasonable prejudice or disadvantage, arising
from an act or acts of Bell Canada, where those
parties allegedly adversely affected by such act
or acts are suppliers to the public of mobile
telephone service equipment, in competition
with Bell Canada and are _ adversely affected
only in their quality as such suppliers?
The appellant here submits that Parliament
intended, in section 320(1) and section 321(2)
(supra), that a telephone company such as the
appellant should not be permitted to discriminate
unjustly as between its own customers; that section
321(2) is "customer-oriented", i.e., that the section
requires that anyone taking service from a tele
communications company be treated fairly and
according to rules set out in section 321(2) but
that the section applies only to customers and not
to competitors of the appellant.
I do not agree that section 321(2) should be
interpreted in such a restrictive manner. Section
321 prohibits discrimination against "any person
or company". Subsection (6) thereof states that, in
section 321, the expression "company" shall have
the meaning assigned to it by section 320. By
section 320(1) quoted earlier herein "company" is
defined, inter alia, so as to include telephone
companies and every company and person within
the legislative authority of the Parliament of
Canada having power to construct or operate a
telephone system or line and to charge telephone
tolls. Accordingly, it is clear that the word "com-
pany" as used in section 321(2)(b) includes the
appellant itself. Thus the appellant is precluded
from giving to itself any undue or unreasonable
preference or advantage. Furthermore, under sec
tion 28 of the Interpretation Act, R.S.C. 1970, c.
I-23, "person" is defined to include a corporation.
Thus, clearly, the respondent is also entitled to the
protection of section 321 when the clear and
unambiguous words "any . .. company" are used. I
agree with counsel for the Director that if section
321(2)(a) were to be restricted to customers, the
word "amongst" or "between" would have been
more apt than the word "against". Giving to this
section its plain and ordinary meaning (and we
were not referred to any authorities which are
persuasive against giving the words used their
plain and ordinary meaning), it seems to me that
section 321 applies to any person or company, not
just customers. I have accordingly concluded that
Question No. 5 should also be answered in the
negative.
Question No. 2
Did the Commission err in law or exceed its
jurisdiction when it ordered Bell Canada to
serve on the Commission, the respondent and
any other party which requests it, a copy of all
specifications of the Access 450 equipment or
facilities necessary for the design and production
of compatible UHF mobile telephone service
equipment?
The appellant submits that the authority which
is conferred upon the CRTC under the provisions
of the Railway Act is restricted to that which can
be found within the four corners of the Act. The
appellant further submits that nowhere within the
four corners of the Act is CRTC empowered to
order the appellant to provide to third parties
information and specifications of the type herein
being dealt with. The specifications being sought
in this portion of the Commission's order were not
the actual design of the appellant's Access 450
equipment but only the minimum standards for
COAM equipment which would be capable of
inter-connecting with appellant's AMTS system so
that telephone messages could be exchanged.
The Commission, after stating its conclusion [3
C.R.T. 489 at page 502] that appellant's revised
tariff pages had contravened section 321(2) of the
Railway Act, expresses on page 502 its reasons for
making that portion of the order herein being
impugned, as follows:
The Commission does not intend to substitute a tariff in lieu
of the disallowed tariff at this time. Instead, it intends to
maintain the present tariffs in force pending the filing of a new
tariff for mobile telephone service that, at a minimum, provides
for COAM equipment throughout the MTS, with equality of
access to the switched telephone network.
It is clear, however, that the mere act of filing a revised tariff
in accordance with these criteria will not eliminate the disad
vantageous situation created by the revised tariff pages. The
former tariff was in force for approximately three months,
during which time Bell Canada had exclusive access to the
AMTS market. In this period, Bell rented approximately 200
AMTS units, whereas it had only 324 manual units rented at
July 20, 1977, in the Toronto-Hamilton area, a total achieved
after many years in the competitive manual MTS market.
The effective date of the substituted tariff must therefore be
delayed until there is a COAM option available for customer
use with AMTS equipment. This will require that potential
COAM equipment manufacturers and suppliers be permitted
to examine AMTS system specifications and to have sufficient
time to develop and produce compatible equipment. In this
regard, the Commission notes the remarks of Messrs. Francis
and Deering that it would take approximately four months to
adapt their equipment to the AMTS system. At the same time,
the Commission believes that it is important to resume AMTS
service as soon as possible. An acceptable alternative for the
interim period would be the availability to COAM suppliers,
under fair terms and conditions, of the equipment now provided
exclusively to Bell Canada by Martin Marietta and Motorola.
In my view, the approach taken by the Commis
sion in this matter is reasonable and logical.
Having found discrimination under section 321(2),
the Commission was empowered to disallow appel
lant's revised tariff, as it did and to require the
substitution of a new tariff satisfactory to the
Commission. That power includes, in my view, the
power to require that the new tariff permit COAM
equipment in the AMTS field. Since that equip
ment must connect with the appellant's telephone
system, the Commission and persons wishing to
provide COAM-AMTS equipment need to know
the general specifications for connecting to appel
lant's AMTS system. Were the appellant allowed
to keep those specifications secret, the Commis
sion's order under section 321 could be frustrated
and rendered ineffective.
Turning now to the question of statutory author
ity, it seems to me that ample authority for
making this portion of the Commission's order is
to be found in sections 45(2), 46(1) and 57(1) of
the National Transportation Act ? and particularly
7 45. ...
(2) The Commission may order and require any company or
person to do forthwith, or within or at any specified time, and
in any manner prescribed by the Commission, so far as is not
inconsistent with the Railway Act, any act, matter or thing that
such company or person is or may be required to do under the
(Continued on next page)
in section 321(5) of the Railway Act (supra) since
interconnecting specifications are necessarily a
matter relating to tariffs. They are also, by defini
tion, a matter relating to traffic' since such
specifications are designed to permit messages
originating on COAM equipment to be transmit
ted to and from the appellant's telephone network.
Accordingly, and for the above reasons, I would
answer Question No. 2 in the negative.
Question No. 3
Did the Commission err in law or exceed its
jurisdiction when it ordered Bell Canada to
report to the Commission with proposals for a
schedule for the implementation of a new MTS
(Mobile-Telephone Service) tariff which will
include the COAM (customer owned and main
tained) option?
(Continued from previous page)
Railway Act, or the Special Act, and may forbid the doing or
continuing of any act, matter or thing that is contrary to the
Railway Act, or the Special Act; and for the purposes of the
Railway Act has full jurisdiction to hear and determine all
matters whether of law or of fact.
46. (1) The Commission may make orders or regulations
(a) with respect to any matter, act or thing that by the
Railway Act or the Special Act is sanctioned, required to be
done, or prohibited;
(b) generally for carrying the Railway Act into effect; and
(c) for exercising any jurisdiction conferred on the Commis
sion by any other Act of the Parliament of Canada.
57. (1) The Commission may direct in any order that such
order or any portion or provision thereof, shall come into force
at a future time or upon the happening of any contingency,
event or condition in such order specified, or upon the perform
ance to the satisfaction of the Commission, or a person named
by it, of any terms which the Commission may impose upon
any party interested, and the Commission may direct that the
whole, or any portion of such order, shall have force for a
limited time, or until the happening of a specified event.
8 The relevant portion of section 320(12) reads as follows:
320. (12) ...
"traffic" means the transmission of and other dealings with
telegraphic and telephonic messages.
As in Question No. 2, the appellant here submits
that the CRTC has acted without jurisdiction and
by this portion of its order "has stepped outside of
its role as regulator under the Railway Act, and
has purported to give Bell Canada orders as to how
Bell Canada should manage its business." It seems
to me, however, that most of the comments made
with respect to Question No. 2 apply also to
Question No. 3. Since, under section 321, the
Commission has the power to eliminate discrimi
nation in tariffs, and since a necessary condition
precedent for the elimination of that discrimina
tion would be an AMTS which includes the
COAM option, then the Commission would have
the consequential and incidental power under sec
tion 321(5) to make that portion of the order being
impugned by Question No. 3. Since the appellant
has offered the service, the Commission has the
power and the duty to ensure that it be offered on
a non-discriminatory basis. Quite apart from the
specific powers set out in section 321(5) of the
Railway Act, it seems to me that the general
powers contained in sections 45(2) (supra), 46(1)
(supra), 57(1) (supra) and 58 9 of the National
Transportation Act give the Commission ample
authority to make this portion of their order, even
absent section 321(5) of the Railway Act. I would
therefore answer Question No. 3 in the negative.
Question No. 4
Did the Commission err in law or exceed its
jurisdiction when it ordered Bell Canada to
report to the Commission with proposals for a
schedule for the implementation of a new MTS
tariff which will include an offering of a "roam-
ing" option of automatic (dial-up) UHF
Mobile-Telephone COAM equipment and net
work service that is compatible with the North
American signalling system?
In this connection the appellant submits that in
making the order with respect to the "roaming"
option, the CRTC gave no indication in its reasons
9 58. Upon any application made to the Commission, the
Commission may make an order granting the whole or part
only of such application, or may grant such further or other
relief, in addition to or in substitution for that applied for, as to
the Commission may seem just and proper, as fully in all
respects as if such application had been for such partial, other,
or further relief.
as to the basis for its jurisdiction. The appellant
further submits that with regard to this particular
option, the CRTC has not even determined the
existence of real or alleged unjust discrimination
as set out in section 321(2) and that in the case of
"roaming", there is a total absence of evidence of
the necessary prerequisite, i.e., unjust discrimina
tion. While the respondent and interveners do not
concede that there wasn't any evidence with
respect to the "roaming" option, they do concede
that the Commission made no finding of discrimi
nation against AMTS users who wish to use their
equipment while travelling outside the areas ser
viced by Bell. The Commission's comments on
"roaming" appear at 503 and read as follows:
One of the Applicant's allegations was that the Respondent's
actions constituted discrimination against AMTS users who
wish to use their equipment while travelling in the U.S.A.
("roaming"). Although the Commission has not found it neces
sary to make a determination on this claim, it has considered
the evidence with respect to the roaming feature as it pertains
to the future of MTS in Canada. While it is true that certain
areas in the U.S.A. do not permit dial-up access by users from
other areas, the Commission believes that, in principle, all MTS
equipment introduced should be compatible with the North
American signalling system. Therefore, the Commission directs
that the Respondent include, in the MTS tariff to be filed
pursuant to paragraph (a) above, an offering of the option of
automatic (dial-up) UHF mobile telephone COAM equipment
and network service that is compatible with the North Ameri-
can signalling system.
In my opinion, one of the difficulties with the
position of the respondent and interveners on
Question No. 4 is that the question of "roaming"
was not in issue in the hearings before the CRTC
because it had not been put in issue by the parties
prior to the hearings. A perusal of the permanent
relief requested by the respondent (Case, pp. B3
and B4) clearly indicates that the respondent
asked for no relief in respect of the roaming option
nor was the matter raised in any of the material
filed by the appellant in response thereto. Like
wise, it was not suggested to this Court that the
matter was raised by the intervener prior to the
hearings. It appears that some of the witnesses
discussed the roaming option during the hearings.
The fact remains however that the roaming option
was not one of the issues, properly defined, upon
which the parties came to the hearing. Thus, it is,
in my view, unnecessary for this Court to deter
mine whether the Commission had power under
section 321(5) or under section 5 of Bell's Special
Act, [S.C. 1967-68, c. 48, s. 6] to make this
portion of the order, since the parties and the
intervener cannot be said to have been heard on
this issue. Therefore I believe that the CRTC
erred in making an order with respect thereto and
I would accordingly answer this question in the
affirmative.
Question No. 6
Did the Commission err in law or exceed its
jurisdiction when it construed Section 321 of the
Railway Act as meaning that the Commission
has the jurisdiction under said Section 321 to
equalize competition between Bell Canada and
competing suppliers of telephone equipment and
facilities?
Concerning this question, I do not agree with the
assumption made that, in its decision, the CRTC
exercised its section 321 jurisdiction to equalize
competition between the appellant and competing
suppliers of telephone equipment and facilities. In
my view, the decision of the CRTC was a finding
that the appellant's revised tariff pages contra
vened section 321(2) and for this reason, those
revised pages were disallowed. Thus, in making
such a decision, the CRTC was acting within the
jurisdiction conferred upon it under section 321. It
may well be that one of the effects of its order
would be to equalize competition. This would not,
however, invalidate an order validly made in the
proper exercise of jurisdiction given to the CRTC
by the statute. I accordingly do not propose to
answer Question No. 6 since, in my view, it pro
ceeds from an unfounded assumption.
I would accordingly dismiss the appeal in
respect of the various Orders made by the CRTC
as set out on pages 503, 505, 506 and 507 [3
C.R.T. 489] with the exception of Order No. 2 as
set out on page 503. In respect of Order No. 2, I
would delete the following words therefrom on
page 503: "and the roaming option as discussed in
paragraph (b) below." The Court has authority to
make such a revision in the Orders of the CRTC
pursuant to the provisions of section 52(c)(i) of the
Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10 10 .
Concerning costs, since no special reasons for
the award of costs have been established, I would
make no order as to costs 11 .
* * *
URIE J.: I concur.
* * *
RYAN J.: I concur.
1 o52. ...
(c) in the case of an appeal other than an appeal from the
Trial Division,
(i) dismiss the appeal or give the decision that should have
been given, or
(ii) in its discretion, refer the matter back for determina
tion in accordance with such directions as it considers to be
appropriate; and
11 Rule 1312. No costs shall be payable by any party to an
appeal under this Division to another unless the Court, in its
discretion, for special reasons, so orders.
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.