T-320-88
Communications & Electrical Workers of Canada,
Telecommunications Workers Union (Plaintiffs)
v.
Attorney General of Canada (Defendant)
and
Call-Net Telecommunications Limited (Interven-
or)
INDEXED AS: C.W.C. V. CANADA (AT T OR N EY GENERAL)
Trial Division, Denault J.—Ottawa, June 27 and
July 21, 1988.
Construction of .statutes — National Telecommunications
Powers and Procedures Act, .s. 64(1) — S. 64(1) intended to
give Governor in Council wide discretion to vary CRTC deci
sions on policy grounds — S. 64(1) to be given fair, large and
liberal interpretation so as not to restrict powers conferred on
Governor in Council by Parliament — Strict construction,
conferring one-time-only statutory power to vary or rescind,
would destroy Governor in Council's ability to respond to
current policy concerns — Meaning of "at any time", as
opposed to 'from time to time" Application of Interpreta
tion Act, ss. 3 and 26 — Use of "à tout moment" in French
version of National Transportation Act, 1987, s. 64 to corre
spond to "at any time".
Judicial review — Equitable remedies — Declarations —
Governor in Council, acting pursuant to National Telecom
munications Powers and Procedures Act, s. 64(1) not limited to
issuing one Order in Council varying or rescinding specific
order of CRTC — Purpose of s. 64(1) to give Governor in
Council wide discretion to vary CRTC decisions on policy
grounds — Term functus officio not applicable to Governor in
Council exercising legislative function under s. 64(1) — Orders
in Council not varying previous Order in Council, but CRTC
decision — Court limited to determining whether statutory
requirements complied with.
Telecommunications — National Telecommunications
Powers and Procedures Act, s. 64(1) giving Governor in Coun
cil power to vary or rescind any CRTC order — Governor in
Council not limited to issuing one Order in Council varying or
rescinding CRTC decision.
This was an action for a declaration that two Orders in
Council were invalid because the Governor in Council had
exhausted the powers conferred by subsection 64(1) of the
National Telecommunications Powers and Procedures Act.
CRTC decision 87-5 effectively ended the major part of the
intervenor's business, and permitted it 30 days within which to
conform to CRTC requirements. Upon review of its decision,
pursuant to section 63, the CRTC dismissed the application
(CRTC 87-14) but extended the stay of decision CRTC 87-5.
Upon review, pursuant to section 64, the Governor in Council
refused to vary CRTC 87-5, but varied CRTC decision 87-14
by extending the stay of execution of decision CRTC 87-5. By a
second Order in Council, the Governor in Council revoked its
earlier decision and varied CRTC decision 87-14 by again
extending the stay. Finally, by a third Order in Council, the
Governor in Council revoked the second Order in Council and
varied CRTC decision 87-14 by further extending the stay. The
plaintiffs argued that the Governor in Council had exhausted
its statutory power under subsection 64(1), and became functus
officio when it made the first Order in Council. Secondly, it
was argued that, according to a strict interpretation of subsec
tion 64(1), the Governor in Council was not empowered to
reconsider or revoke its own decision. Finally, it was argued
that the use of the words "at any time" in subsection 64(I),
rather than "from time to time" (which has been held to permit
subsequent amendment or reversal of orders) indicated that
Parliament did not contemplate that the Governor in Council
would revoke a previous order, but that there was no time limit
in which to make an initial review of a Commission order or
decision. In support of this argument, the plaintiffs referred to
section 49 of the Act which permits the Commission to act
"from time to time, or at any time", and to the one-month
limitation to appeal in subsection 64(2).
Alternatively, the plaintiffs argued that the Governor in
Council, having expressly refused to vary CRTC 87-5, could
not proceed to do so by requiring Bell Canada and CNCP to
supply the intervenor additional underlying services. It was
further argued that the Governor in Council did not have
jurisdiction to so order Bell Canada and CNCP, as the Gover
nor in Council had no statutory power over these bodies. The
issue was whether the Governor in Council, acting pursuant to
subsection 64(1), could only issue one Order in Council which
varies or rescinds a specific order or decision of the CRTC.
Held, the action should be dismissed.
It has been conclusively established that subsection 64(1) is
intended to give the Governor in Council a wide discretion to
vary decisions of the CRTC on purely policy grounds. Subsec
tion 64(1) does not impose any guidelines on the Governor in
Council. The Governor in Council's function is legislative
action in its purest form. The Court had only to decide whether
the requirements of subsection 64(1) had been satisfied.
Concerning the argument that the Governor in Council did
not have jurisdiction to reconsider an Order in Council, neither
of the two Orders in Council under attack vary or rescind a
previous Order in Council. They both vary a Commission
decision by changing the length of the stay of execution.
Secondly, the Court did not have authority to examine and
consider the reasons why the Governor in Council decided to
issue three successive Orders in Council, as long as they were
enacted within the terms of the enabling statutes.
The Governor in Council did not reconsider its decision, but
determined that it was in the public interest to further vary
CRTC decision 87-14. Subsection 64(1) surely empowers the
Governor in Council to further vary a previous Order in
Council.
The term `functus officio" should only be applied to persons
or bodies who exercise either purely administrative functions,
or decision-makers who exercise judicial or quasi-judicial func
tions. The power exercised under subsection 64(1) is legislative
in nature, and it is therefore inappropriate to apply the term
`functus officio". It is a matter of interpretation whether a
statutory power to act may be exercised more than once.
Subsection 64(1) should be given such fair, large and liberal
interpretation as will best ensure that its objects are attained.
The Interpretation Act provides that statutory duties are to be
performed from time to time as occasion requires, and that
regulation-making power includes the power to vary the regula
tions. These rules apply unless a contrary intention appears. A
construction which would confer a one-time-only statutory
power to vary or rescind would destroy the Governor in Coun
cil's ability to respond to immediate policy concerns which
transcend individual interest. A broad interpretation of subsec
tion 64(1) is also supported by the use of "Ã tout moment",
which implies a continuous authority to act, in the French
version of the new section 64 of the National Transportation
Act, 1987, the English version of which still gives the Governor
in Council the power to vary any decision of the National
Transportation Agency "at any time". The authority to act at
its own discretion, regardless of whether the decision is made
inter partes, also supports such broad interpretation.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Interpretation Act, R.S.C. 1970, c. l-23, ss. 3(1),
26(3),(4).
National Telecommunications Powers and Procedures
Act, R.S.C. 1970, c. N-17 (as am. by S.C. 1987, c. 34,
s. 302), ss. 49, 64(l),(2).
National Transportation Act, 1987, S.C. 1987, c. 34, s.
64.
The Ontario Municipal Board Act, R.S.O. 1970, c. 323,
s. 64.
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; Re Davisville Investment Co.
Ltd. and City of Toronto et al. (1977), 15 O.R. (2d) 553
(C.A.); Action Travail des Femmes v. Canadian Nation
al Railway Co., [1987] 1 S.C.R. 1114; Schavernoch v.
Foreign Claims Commission et al., [1982] 1 S.C.R.
I 092.
DI STINGUISIIED:
National Anti-Poverty Organization v. Canada (Attor-
ney General), [1989] 1 F.C. 208 (T.D.); The King v.
Minister of Finance, [1935] S.C.R. 70; Lodger's Interna
tional Ltd. v. New Brunswick Human Rights Commis
sion (1983), 4 C.H.R.R. D/I349 (N.B.C.A.).
CONSIDERED:
Lawrie v. Lees (1881), 7 App. Cas. 19 (H.L.).
REFERRED TO:
CSP Foods Ltd. v. Canadian Transport Commission,
[1979] I F.C. 3 (C.A.); Melville (City of) v. Attorney
General of Canada, [1982] 2 F.C. 3; (198I), 129 D.L.R.
(3d) 488 (T.D.); Minister of Transport of Quebec v.
Attorney General of Canada, [1982] 2 F.C. 17 (T.D.);
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177.
AUTHORS CITED
Walker, David M. The Oxford Companion to Law
Oxford: Clarendon Press, 1980.
COUNSEL:
T. Gregory Kane and Rowland J. Harrison
for plaintiffs.
Eric A. Bowie, Q.C. and Wendy Burnham for
defendant.
Lawrence J. E. Dunbar and J. Aidan O'Neill
for intervenor.
SOLICITORS:
Stikeman, Elliot, Ottawa, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
Johnston & Buchan, Ottawa, for intervenor.
The following are the reasons for judgment
rendered in English by
DENAULT J.: This is an action for declaratory
relief. The plaintiffs seek a declaration that two
Orders in Council (P.C. 1987-2349, P.C. 1988-
265) are invalid and of no force and effect because
the Governor in Council exhausted the powers
conferred by subsection 64(1) of the National
Telecommunications Powers and Procedures Act.'
' Former National Transportation Act, R.S.C. 1970, c.
N-17, as amended by S.C. 1987, c. 34, s. 302.
The issue to be decided in this legal proceeding
is whether the Governor in Council, acting pursu
ant to subsection 64(1) of this Act may only issue
one Order in Council which has the effect of
varying or rescinding a specific order or decision of
the Canadian Radio-television and Telecommuni
cations Commission (CRTC). In this regard, the
plaintiffs request a declaration that Orders in
Council P.C. 1987-2349 and P.C. 1988-265 are
invalid and of no force and effect, since the Gover
nor in Council had previously considered and
varied a decision of the CRTC by Order in Coun
cil P.C. 1987-2134.
The plaintiff unions comprise workers of Bell
Canada and the British Columbia Telephone
Company Ltd. Call-Net Telecommunications Lim
ited, following CRTC's Decision 84-18, has been
offering for profit a service to the public making
use of underlying telecommunication services pro
vided by Bell and CNCP. It was authorized to
intervene in the present instance by an order of
this Court.
The facts have been briefly summarized in the
defendant's memorandum and I can do no better
at this juncture than to reproduce this resumé.
1. The Intervener [sic], in connection with its business was
adversely affected by a decision of the Canadian Radio-televi
sion and Telecommunications Commission (hereinafter called
"the CRTC"). This Decision, CRTC 87-5, effectively ended
the major part of the Intervener's [sic] business, and permitted
it 30 days within which to bring its business into conformity
with CRTC requirements.
2. The Intervener [sic] then applied to the CRTC pursuant to
Section 63 of the National Transportation Act, R.S.C. 1970, c.
N-17 for a review of Decision CRTC 87-5. This application
was dismissed by the CRTC on the merits. However it did
extend the period of the stay of Decision CRTC 87-5 until
thirty days following its decision on the review application. The
decision on the review application was made on September 23,
1987 and the thirty day stay, therefore, was to expire on
October 23rd, 1987.
3. The Intervener [sic] then petitioned the Governor in Coun
cil, pursuant to subsection 64(1) of the National Transporta
tion Act, to vary Decision CRTC 87-14 (the decision on
review) and to stay the effect of Decision CRTC 87-5 pending
a review under subsection 64(1) of that decision.
4. The Governor in Council by its Order PC 1987-2134 (Order
in Council number 1) varied Decision CRTC 87-14 by extend
ing the stay of execution of Decision CRTC 87-5 for an
additional 30 days beyond the October 23rd date. By the same
decision, it prohibited Bell Canada and CNCP Telecommuni
cations from supplying further underlying services or facilities
to the Intervenor beyond those then being provided. In other
words, this decision was to maintain the status quo for a period
of 60 days following the CRTC's second decision (CRTC
87-14).
5. By its Order in Council number PC 1987-2349 (Order in
Council number 2) the Governor in Council
(a) declined to vary Decision CRTC 87-5 (that is the first
CRTC decision);
(b) revoked its own earlier decision, Order in Council
number 1; and
(c) varied Decision CRTC 87-14 (the second CRTC deci
sion) once again by changing the 30 day stay granted by
the CRTC to a stay of a total of 240 days.
6. In February 1988, by Order in Council number PC 1988-
265 (Order in Council number 3) the Governor in Council
(a) once again declined to vary Decision CRTC 87-5;
(b) revoked Order in Council number 2;
(c) varied the second decision of the CRTC (CRTC 87-14)
again by changing the total length of the stay from 30
days to 330 days; and,
(d) required Bell Canada and CNCP Telecommunications
to supply to the Intervener [sic] additional underlying
services in accordance with their tariffs.
Plaintiffs argue that the Governor in Council
acting pursuant to statutory authority is a tribunal
of limited jurisdiction, and that where the jurisdic
tional boundaries of subsection 64(1) of the former
Act have been exceeded or a condition precedent
has not been observed, the exercise of the power
may be reviewed by the Federal Court. More
specifically, they argue that by making Order in
Council P.C. 1987-2134 (Order in Council number
1), the Governor in Council exhausted its 2 statu
tory power and thereupon became functus officio.
The plaintiffs further argue that when acting pur
suant to subsection 64(1) of the Act, the Governor
in Council has no inherent jurisdiction to reconsid
er its own decision, and that the strict interpreta
tion of that subsection does not empower the Gov
ernor in Council to reconsider or revoke its own
decision.
Both the defendant and the intervenor keep the
same speech: the Governor in Council is not so
restricted in the exercise of its statutory powers
under the National Telecommunications Powers
2 It is my intention to refer to the Governor in Council by the
English pronoun "it", where appropriate.
and Procedures Act and the impugned Orders in
Council are valid in their entirety.
Subsection 64(1) of the Act provides that:
64. (1) The Governor in Council may at any time, in his
discretion, either upon petition of any party, person or company
interested, or of his own motion, and without any petition or
application, vary or rescind any order, decision, rule or regula
tion of the Commission, whether such order or decision is made
inter partes or otherwise, and whether such regulation is gener
al 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.
Over the years, that subsection and other similar
legislative provisions have been the subject of con
siderable litigation. It has been conclusively estab
lished that this provision is intended to give the
Governor in Council a wide discretion to vary
decisions of the CRTC on purely policy grounds.
The Law Reform Commission of Canada in Work
ing Paper 25 "Independent Administrative Agen
cies" characterized the procedures sanctioned by
subsection 64(1) as an unjustifiable interference
with the regulatory process, and recommended
that they should be abolished. The Supreme Court
of Canada, by Estey J., had this to say about that
critique, in Attorney General of Canada v. Inuit
Tapirisat of Canada et al.: 3
Indeed it may be thought by some to be unusual and even
counter-productive in an organized society that a carefully
considered decision by an administrative agency, arrived at
after a full public hearing in which many points of view have
been advanced, should be susceptible of reversal by the Gover
nor in Council. On the other hand, it is apparently the judg
ment of Parliament that this is an area inordinately sensitive to
changing public policies and hence it has been reserved for the
final application of such a policy by the executive branch of
government. Given the interpretation of s. 64(1) which 1 adopt,
there is no need for the Governor in Council to give reasons for
his dicision [sic], to hold any kind of a hearing, or even to
acknowledge the receipt of a petition. It is not the function of
this Court, however, to decide whether Cabinet appeals are
desirable or not. I have only to decide whether the requirements
of s. 64(1) have been satisfied.
So do I.
In the Inuit Tapirisat case, the Supreme Court
had to decide whether there is a duty to observe
natural justice, or at least a duty of fairness
3 [1980] 2 S.C.R. 735, at p. 756.
incumbent upon the Governor in Council in deal
ing with parties pursuant to their submission of a
petition under subsection 64(1) of this Act. The
Court answered that Parliament, by enacting sub
section 64(1), has not burdened the Governor in
Council with any standards or guidelines in the
exercise of its rate review function, nor were proce
dural standards imposed or even implied. After a
lengthy consideration of that section, the Court
characterized the function of the Governor in
Council, at page 754, as "legislative action in its
purest form " and concluded, at page 756, that
"the discretion of the Governor in Council is com
plete provided he observes the jurisdictional
boundaries of s. 64(1)".
The role of the Court in the present instance is
quite different from an appeal under subsection
64(2) of a Commission decision, upon a question
of law or jurisdiction. It is limited to reviewing
whether the Governor in Council exceeded its
power or whether a condition precedent has not
been observed.
Counsel for plaintiffs maintains that the Gover
nor in Council was without jurisdiction to consider
the petitions by the intervenor that led to Orders in
Council Nos. 2 and 3 as they concerned the same
issue for which the Governor in Council had made
P.C. 1987-2134 on October 15, 1987. Order in
Council No. 1 constituted a final determination of
the matter. According to counsel, subsection 64(1)
is clear and unambiguous: the power conferred
upon the Governor in Council to "vary or rescind
any order, decision, rule or regulation" of the
CRTC does not confer a power to reconsider any
such "order" when it has already done so by way
of an Order in Council. Nor does this power
include the authority to vary or rescind a previous
Order in Council. Consequently, counsel argues
that the Governor in Council exhausted its power
pursuant to subsection 64(1).
I do not agree with that proposition. Firstly,
none of the two Orders in Council under attack do
vary or rescind a previous Order in Council. They
both vary CRTC 87-14 of September 23, 1987 by
changing the number of days from 30 to 240 days
and then from 30 to 330 days. As to the revocation
of previous Orders in Council, no one contested the
power of the Governor in Council to do so.
Secondly, the Court has no authority to examine
and consider the reasons why the Governor in
Council decided to issue three successive Orders in
Council on the same matter, as long as they were
enacted within the terms of the enabling statutes.
In Inuit Tapirisat, Estey J., approving the Ontario
Court of Appeal in Re Davisville Investment Co.
Ltd. and City of Toronto et al.' had this to say on
the matter (page 755):
It is my view that the supervisory power of s. 64, like the power
in Davisville supra is vested in members of the Cabinet in order
to enable them to respond to the political, economic and social
concerns of the moment.
Now does the text of subsection 64(1) enable
the Governor in Council to reconsider any such
order or decision of the Commission? One can
argue that in the present instance, the Governor in
Council twice considered the subject-matter of
Order in Council No. 1, but in saying so, a conclu
sion is drawn from a series of facts. In reality, in
both Orders in Council under attack, the Governor
in Council did not reconsider its decision but
determined that "it is in the public interest to
further vary Telecom Decision CRTC 87-14". By
enabling the Governor in Council to vary and
rescind any order of the Commission "at any time,
in his discretion, either upon petition of any party,
person or company interested, or of his own
motion, and without any petition or application ...
whether such order or decision is made inter partes
or otherwise, and whether such regulation is gener
al or limited in its scope and application", Parlia
ment surely empowers the Governor in Council to
further vary a previous Order in Council.
Having once varied CRTC decision 87-14 by
making Order in Council No. 1, has the Governor
in Council exhausted its statutory power and
became functus officio? The plaintiffs contend
that the Governor in Council has become functus
officio and they base their contention on the two
following cases. However, in my view, neither of
them is applicable to the present case. In The King
v. Minister of Finance,' the statute that invested
the Lieutenant Governor in Council with jurisdic
tion most explicitly declared that a "decision of the
^ ( 1977), 15 O.R. (2d) 553 (C.A.).
5 [1935] S.C.R. 70.
Lieutenant Governor in Council shall be final".
This is not the case with subsection 64(1) of the
Act. In Lodger's International Ltd. v. New Bruns-
wick Human Rights Commission, 6 the section
[Human Rights Act, R.S.N.B. 1973, c. H-11]
under which the Commission was empowered to
make an order to carry into effect the recommen
dations of a board of inquiry appointed under the
Act, read as follows [at page D/1350]:
21 (1) Upon receipt of the recommendations of the Board of
Inquiry the Commission
(c) may issue whatever order it deems necessary to carry
into effect the recommendations of the Board.
21 (2) Every order made pursuant to paragraph (l)(c) is final
and every person in respect of whom the order is made shall
comply therewith.
Consequently, the Court ruled that the Commis
sion did not have the authority to issue more than
one order. Once again, this is not the case with
subsection 64(1) which enables the Governor in
Council, in broad terms, to act in its discretion and
even of its own motion.
The plaintiffs' reliance on the doctrine of func-
tus officio is inappropriate to the case at bar. The
term "functus officio" is defined in The Oxford
Companion to Law (1980) at page 508 as:
Functus officio (having performed his function). Used of an
agent who has performed his task and exhausted his authority
and of an arbitrator or judge to whom further resort is
incompetent, his function being exhausted.
As this definition shows, the term "functus
officio" is only appropriate to persons or bodies
who exercise either purely administrative func
tions, or decision-makers who exercise judicial or
quasi-judicial functions. In all cases where the
authority to act is given by a statute or other
instrument, it is a matter of interpretation whether
the power may be exercised only once or more
than once. The statutory power exercised by the
Governor in Council, per subsection 64(1), is nei
ther judicial nor quasi-judicial, but rather is legis
lative in nature as decided in Inuit Tapirisat (page
754). The exercise of its powers by the Governor in
Council pursuant to subsection 64(1) is not in the
6 (1983), 4 C.H.R.R. D/1349 (N.B.C.A.).
nature of a judicial appeal.' It is inappropriate to
use the term "functus officio" for those exercising
legislative functions to implement public policy.
Just as Parliament does not become functus officio
when it enacts legislation on a particular subject,
the Governor in Council, acting in a legislative
capacity pursuant to subsection 64(1) and within
its jurisdictional boundaries, does not become
functus officio unless there is clear language in the
statute to that effect. There is no clear restriction
in this statute.
At the hearing, counsel for the plaintiffs argued
that the Governor in Council has no inherent
jurisdiction to reconsider its own decision. Counsel
for the defendant did not dispute that proposition
but the intervenor took the view that inherent to
the performance of legislative functions is an abili
ty for the Governor in Council to reconsider its
decisions. Because of the conclusion to which I
come on the statutory interpretation of subsection
64(1), it will not be necessary to express an opin
ion on the matter.
I now turn to the interpretation of the words "at
any time" in subsection 64(1) which reads in part
as follows:
64. (1) The Governor in Council may at any time ... vary or
rescind any order, decision ... of the Commission.....
The plaintiffs submit that, as subsection 64(1)
includes the phrase "at any time" rather than
"from time to time", the legislative intention is
that the Governor in Council is empowered to
make only one decision. In that context, the phrase
"at any time" would mean that there is no time
limit on when a review by the Governor in Council
can be initiated. But to them, the meaning of these
words is distinguishable from the words "from
time to time". Counsel relied on the interpretation
of this phrase made by the House of Lords in
Lawrie v. Lees: 8
' CSP Foods Ltd. v. Canadian Transport Commission,
[1979] I F.C. 3 (C.A.), at p. 9.
8 (1881), 7 App. Cas. 19 (H.L.), at p. 29.
... the words "from time to time" are words which are
constantly introduced where it is intended to protect a person
who is empowered to act from the risk of having completely
discharged his duty when he has once acted, and therefore not
being able to act again in the same direction. The meaning of
the words "from time to time" is that after he has made one
order he may make a fresh order to add something to it, or take
something from it, or reverse it altogether ....
By using the words "at any time" in subsection
64(1), the plaintiffs argue that Parliament did not
contemplate the Governor in Council would revoke
a previous order, but simply that it had no time
limit in which to make an initial review of a
commission order or decision.
Counsel also referred to section 49 of the Na
tional Transportation Act to stress the distinction
between "from time to time" and "at any time",
stating that the expression does not mean that the
Governor in Council can act any number of times.
By section 49, Parliament enacted that: "Any
power or authority vested in the Commission may,
though not so expressed, be exercised from time to
time, or at any time, as the occasion may require."
Counsel also argued that by opposing the words
"at any time" in subsection 64(1) to the one-
month limitation to appeal before the Federal
Court of Appeal upon a question of law or of
jurisdiction, (subsection 64(2)) one can see that
Parliament simply intended to impose no time
limit on the Governor in Council to vary or rescind
any order of the Commission.
In my view, subsection 64(1) cannot be given
such a narrow interpretation. The modern rule of
interpretation of statutes has recently been stated
by the Supreme Court of Canada, in Action Tra
vail des Femmes v. Canadian National Railway
Co. 9 in these terms:
Although it may seem commonplace, it may be wise to remind
ourselves of the statutory guidance given by the federal Inter
pretation Act which asserts that statutes are deemed to be
remedial and are thus to be given such fair, large and liberal
interpretation as will best ensure that their objects are attained.
9 [1987] 1 S.C.R. 1114, at p. 1134.
See s. 11 of the Interpretation Act, R.S.C. 1970, c. 1-23, as
amended. As Elmer A. Driedger, Construction of Statutes,
(2nd ed. 1983), at p. 87 has written:
Today there is only one principle or approach, namely, the
words of an Act are to be read in their entire context and in
their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of
Parliament.
Not only does the Interpretation Act [R.S.C.
1970, c. I-23], provide at subsection 26(3) that
"Where a power is conferred or a duty imposed
the power may be exercised and the duty shall be
performed from time to time as occasion requires",
but subsection 26(4) also provides that "Where a
power is conferred to make regulations, 10 the
power shall be construed as including a power,
exercisable, in the like manner, and subject to the
like consent and conditions, if any, to repeal,
amend or vary the regulations and make others."
These rules are to be applied, per subsection 3(1)
of the Interpretation Act, "unless a contrary inten
tion appears, to every enactment, whether enacted
before or after the commencement of this Act."
As the Supreme Court said in Schavernoch v.
Foreign Claims Commission et al.:"
There is therefore no authority for a court to adopt other than
the plain meaning of the words used by the Governor in
Council in these Regulations.
In the past, the courts have not construed res
trictively the clear language of subsection 64(1)
and they have declined to fetter artificially the
scope of the authority conferred by Parliament on
the Governor in Council therein. (See Inuit
Tapirisat, supra; Melville (City of) v. Attorney
General of Canada, [1982] 2 F.C. 3; (1981), 129
D.L.R. (3d) 488 (T.D.); Minister of Transport of
Quebec v. Attorney General of Canada, [ 1982] 2
F.C. 17 (T.D.).)
In a similar context, in Re Davisville Investment
Co. Ltd. and City of Toronto et al., supra, the
Ontario Court of Appeal had to interpret section
94 of The Ontario Municipal Board Act [R.S.O.
1970, c. 323] which provides that the Lieutenant
1° Cf. s. 2: "regulation includes an order, regulation, order in
council .... "
" 11982] 1 S.C.R. 1092, at p. 1101.
Governor in Council may confirm, vary or rescind
the Board order or require the Board to hold a new
hearing. Lacourciere J.A. stated, at page 557 that:
Section 94 of the Ontario Municipal Board Act should not
be construed restrictively as if it involved an inferior tribunal to
which certain matters have been committed by the Legislature.
I prefer to regard the power as one reserved by the legislative to
the executive branch of Government acting on broad lines of
policy. There is no reason to fetter and restrict the scope of the
power by a narrow judicial interpretation.
As indicated above, the Supreme Court adopted
the same approach in Inuit Tapirisat, supra (page
755). I am of the view that subsection 64(1) of the
National Telecommunications Powers and Proce
dures Act should not be given a narrow interpreta
tion which would have the effect of restricting the
powers conferred on the Governor in Council by
Parliament.
The effect of construing the subsection as con
ferring a one-time-only statutory power to vary or
rescind, as the plaintiffs suggest, would be to
destroy the ability of the Governor in Council to
respond to the immediate policy concerns of the
day which transcend individual interest.
I am also of the view the words "at any time"
should not be given the restrictive interpretation
desired by the plaintiffs. The French version of
subsection 64(1) refers to "à toute époque". The
new English version of section 64 of the National
Transportation Act, 1987 [S.C. 1987, c. 34], still
gives the Governor in Council the power to vary
any decision of the National Transportation
Agency "at any time", but the French version now
says that this power can be exercised "Ã tout
moment", which means "sans cesse",
"continuellement". 12 The French version of the
text implies a continuous authority held by the
Governor in Council to act, and the phraseology of
subsection 64(1) authorizes it to act in its own
discretion, not merely upon petition by any party,
but of its own motion, no matter if the order or
"- Le grand Robert de la langue française: dictionnaire
alphabétique et analogique de la langue française (2d ed.
1986), sous les mots: époque, moment, continuel.
decision is made inter partes or otherwise. All of
the above supports a broad interpretation of the
Act.
The Court therefore comes to the conclusion
that the Governor in Council had the statutory
authority to issue Orders in Council P.C. 1987-
2349 and P.C. 1988-265.
As alternative arguments, counsel for the plain
tiffs first argues that the Governor in Council,
having expressly declined to vary Telecom Deci
sion CRTC 87-5, cannot proceed to vary that
decision as it purported to do in paragraph (d) of
Order in Council P.C. 1988-265. Counsel further
argues that this paragraph (d) is beyond the juris
diction of the Governor in Council since it
attempts to order Bell Canada and CNCP Tele
communications to supply further underlying ser
vices or facilities to the intervenor even though the
Governor in Council has no such statutory power
over Bell Canada and CNCP Telecommunications.
In doing so, the Governor in Council exceeds the
statutory power to vary or rescind an order or
decision of the Commission. This power does not
include issuing an order to Bell Canada and
CNCP Telecommunications to supply services of
facilities.
The Court does not agree that this is the mean
ing that must be given to paragraph (d) of Order
in Council P.C. 1988-265. By requiring Bell
Canada and CNCP Telecommunications to supply
to Call-Net Telecom Limited further underlying
services or facilities during the period of the stay
of execution, the Order in Council does not, in
fact, vary Telecommunication Decision CRTC
87-5, but simply clarifies the Governor in Coun
cil's desire that Call-Net have unrestricted access
to these services during the term of the stay, as can
be seen from the regulatory impact analysis state
ment, joined to, but not part of Order P.C. 1988-
265. In a sense, it is simply a complement to the
variation of Telecom Decision CRTC 87-14 that
gives a meaning to the stay of execution of Tele-
com Decision CRTC 87-5, and a rectification of
the interpretation given by the CRTC to the Order
in Council P.C. 1987-2349, in its December 21,
1987 letter.
On the same day that the Court was trying this
case, my brother Mr. Justice Muldoon released his
reasons for judgment in the case of National Anti-
Poverty Organization v. Canada (Attorney Gener
al), [ 1989] 1 F.C. 208 (T.D.) (the NAPO deci
sion). In view of the comments made by Muldoon
J. in reference to the Inuit Tapirisat case, I
requested that counsel for all parties should make
written submissions on the applicability and
impact of the NAPO case to this action.
After a careful reading of these submissions, I
have come to the conclusion that the facts and
issues discussed in the NAPO decision are quite
different from those in the present case. I note that
Muldoon J. expressed deep concerns about the
continuous applicability of the Supreme Court
decision in Inuit Tapirisat, decided in 1980, as it
must now be interpreted in light of the constitu
tional amendments of 1982 and the "revivification
of the Bill of Rights by the Supreme Court of
Canada" in the Singh" case. However, I am of the
opinion that it would be inappropriate and prema
ture for me to sit in appeal or even to express
comments on this decision which proposes to
change the interpretation of subsection 64(1) of
the National Telecommunications Powers and
Procedures Act from that given by the supreme
court of this country. I consider this role is more
properly reserved for the appellate courts.
This action is dismissed with costs.
I' Singh et al. v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177.
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