T-8340-82
Alberta Government Telephones (Applicant)
v.
Canadian Radio-television and Telecommunica
tions Commission and CNCP Telecommunica
tions (Respondents)
Trial Division, Walsh J.—Ottawa, April 28 and
May 2, 1983.
Practice — Intervention — Jurisdiction — Attorney General
of Canada seeking leave to intervene at trial level in writ of
prohibition application involving important constitutional
questions — Jurisdiction in Trial Division to permit interven
tion of Attorney General — Order to go adding Attorney
General as party respondent — Motion allowed — Federal
Court Rules, C.R.C., c. 663, RR. 5, 322, 1101, 1716(2)(b) —
Judicature Act, R.S.A. 1980, c. J-1, s. 25 — Judicature Act,
R.S.O. 1980, c. 223, s. 35.
Jurisdiction — Parliament and CRTC — Attorney General
of Canada seeking leave to intervene at trial level in writ of
prohibition application involving important constitutional
questions — Whether jurisdiction in Trial Division to permit
intervention — Federal Court Rules, C.R.C., c. 663, RR. 5,
322, 1101, 1716(2)(6) — Judicature Act, R.S.A. 1980, c. J-1,
s. 25 — Judicature Act, R.S.O. 1980, c. 223, s. 35.
Constitutional law — Jurisdiction of Parliament and CRTC
— Attorney General of Canada seeking leave to intervene at
trial level — Attorney General more likely than CRTC to
defend latter's constitutional jurisdiction vigorously — Inter
vention desirable in view of comments of Estey J. in North
western Utilities case on impropriety of administrative tribunal
actively participating in judicial confrontations with party
before it in first instance — Motion allowed — Federal Court
Rules, C.R.C., c. 663, RR. 5, 322, 1101, 1716(2)(6) — Judica
ture Act, R.S.A. 1980, c. J-1, s. 25 — Judicature Act, R.S.O.
1980, c. 223, s. 35.
The Attorney General of Canada seeks leave to intervene in
a writ of prohibition application raising important constitution
al questions concerning the jurisdiction of the CRTC and of the
Parliament of Canada. The applicant for the writ argues that
while the Federal Court Rules provide for the intervention of
the Attorney General in the Court of Appeal in such cases, the
Rules do not directly provide for such intervention in the Trial
Division. It is also argued that no intervention is necessary or
useful since the interest of the CRTC in defending its jurisdic
tion is identical to that of the Attorney General, both of whom
will be represented by counsel with the Department of Justice.
The applicant for prohibition finally contends that since the
Attorney General received notice of the proceedings, the latter
has a right to participate in them without the need of a
judgment from the Court.
Held, the motion should be allowed and the Attorney Gener
al added as a party respondent, certain of his rights as such
being specified.
Whether or not Rules 5 and 1716(2)(b) apply, the decision
whereby the Court of Appeal added CNCP Telecommunica
tions as party respondent in the prohibition proceedings in the
present case is authority for allowing this motion.
The Attorney General's intervention is desirable since there
might be some doubt as to whether the CRTC would defend its
jurisdiction as vigorously as would the former on the constitu
tional issue. It is also advisable in view of the comments of
Estey J. in rendering the judgment of the Supreme Court of
Canada in Northwestern Utilities Limited et al. v. City of
Edmonton, [1979] 1 S.C.R. 684, on the impropriety of an
administrative tribunal actively participating in judicial con
frontations with a party which had been before it in the first
instance.
It is appropriate that judgment be rendered specifying the
extent of the Attorney General's right of participation since it
might otherwise be severely limited. The risk that allowing this
application might delay the proceedings as a result of numerous
other applications by interested parties is not a valid ground for
denying this motion.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Northwestern Utilities Limited et al. v. City of Edmon-
ton, [1979] 1 S.C.R. 684; Brywall Manufacturing Ltd. v.
Try-I International Ltd., et al., [1975] F.C. 376; 19
C.P.R. (2d) 38 (T.D.).
COUNSEL:
J. Rooke for applicant.
D. J. Rennie and G. A. van Koughnett for
respondent Canadian Radio-television and
Telecommunications Commission.
C. R. O. Munro, Q.C. for respondent CNCP
Telecommunications.
E. A. Bowie, Q.C. for Attorney General of
Canada.
SOLICITORS:
Burnet, Duckworth & Palmer, Calgary,
Alberta, for applicant.
Deputy Attorney General of Canada for
respondent Canadian Radio-television and
Telecommunications Commission and for the
Attorney General of Canada.
Law Department, Canadian Pacific, Mon-
treal, for respondent CNCP Telecommunica
tions.
The following are the reasons for order ren
dered in English by
WALSH J.: UPON a motion for an order granting
leave to the Attorney General of Canada to inter
vene in the trial of this action upon the following
terms:
a) that the Attorney General of Canada may be
represented by counsel at all stages of these
proceedings;
b) that counsel for the Attorney General of
Canada may file such evidence by way of affida
vit as he considers necessary;
c) that counsel for the Attorney General of
Canada may cross-examine upon such affidavit
evidence as may be filed by the parties hereto;
and
d) that counsel for the Attorney General of
Canada may make such oral and written
representations as are necessary;
and upon reading the affidavit of Donald
Kubesh, filed;
and upon hearing representations from counsel
representing all parties.
REASONS FOR ORDER
The factual background leading to this motion
can be briefly summarized as follows:
On September 17, 1982, CNCP Telecommuni
cations applied to the Canadian Radio-television
and Telecommunications Commission for an
order, pursuant to the Railway Act [R.S.C. 1970,
c. R-2] and the National Transportation Act
[R.S.C. 1970, c. N-17] compelling, inter alia,
Alberta Government Telephones to afford to
CNCP Telecommunications access to all reason
able and proper facilities for the receiving, for
warding and delivery of telegraphic and telephonic
messages upon and from its telegraph and tele
phone lines.
On October 18, 1982, Alberta Government
Telephones instituted proceedings by an originat
ing notice of motion seeking a writ of prohibition
to prevent the CRTC from proceeding with the
said application on the basis that it is without
jurisdiction to grant the relief sought. The applica-
tion for a writ of prohibition raises two significant
questions of law in which the Attorney General of
Canada has a direct interest, namely whether the
CRTC is without jurisdiction to grant the relief
sought by CNCP Telecommunications because the
said Railway Act and National Transportation
Act do not bind Alberta Government Telephones
which is an agent of the Crown in right of Alberta
and secondly, whether the matter of interconnec
tion of transcontinental and international telecom
munications traffic with the facilities of Alberta
Government Telephones is within the legislative
competence of the Parliament of Canada.
Disputes between various provincial govern
ments and their agencies and the Federal Govern
ment respecting control over telecommunications
in this rapidly growing and increasingly complex
industry are matters of serious national impor
tance and raise difficult legal issues, some of which
have not yet been resolved.
The fact that the Attorney General of Canada
had an interest in the matter was recognized by
the applicant for the writ of prohibition Alberta
Government Telephones which gave notice of the
application to it as well as to the CRTC, CNCP
Telecommunications and the Attorney General of
Alberta. The proceedings were instituted in Alber-
ta and this would be a requirement of section 25 of
the Alberta Judicature Act.' A similar require
ment respecting notice is found in section 35 of the
Ontario Judicature Act. 2 Rule 1101 of the Federal
Court of Appeal [Federal Court Rules, C.R.C., c.
663] provides that where any constitutional ques
tion or any question of general importance is
raised the Attorney General of Canada or the
Attorney General of any interested province may
apply for leave to intervene "or for leave to file a
memorandum of facts and law and to appear by
counsel and take part in the hearing". There is no
similar specific provision for intervention in the
Trial Division. In the case of Brywall Manufac-
1 R.S.A. 1980, c. J-1.
2 R.S.O. 1980, c. 223.
tuning Ltd. v. Try-1 International Ltd., et a1., 3
Rule 5, sometimes referred to the "Gap" Rule was
invoked so as to permit intervention pursuant to
the rules of the Quebec Code of Civil Procedure
which do not apply in this case. It is some author
ity however for permitting intervention in the Trial
Division in appropriate circumstances.
Two motions came on for hearing before Justice
Mahoney in this matter on which he rendered
judgments on November 3, 1982. In the first of
these the applicant Alberta Government Tele
phones sought the issue of an interim order to
adjourn the proceedings pending final determina
tion of the application for a writ of prohibition.
This was found not to be necessary since the
CRTC agreed not to proceed with the CNCP
application for intervention in the meanwhile. The
second part of the motion sought leave to give
notice to any person not yet given notice, so that
any interested party could seek leave to intervene,
and that respondents (only the CRTC at that stage
of proceedings) and authorized intervenors prepare
such oral and written submissions as the Court
might allow to provide a full and adequate hearing
of the facts and arguments relative to the jurisdic
tion of the CRTC, and for special directions for
the conduct of the originating notice of motion.
Justice Mahoney found that none of the directions
sought were reasonably necessary for the due dis
position of the application and added: "In any
event, and in particular in view of Rule 1101, the
Court is of the view that the procedure contem
plated by this part of the motion as it involves
participation of intervenors, is not available in the
Trial Division." On the same date he rendered
judgment on an application by CNCP Telecom
munications for the right to intervene as a party
respondent stating:
The application to be joined as a party Respondent is denied,
however CNCP Telecommunications is a person within Rule
322 and should be given notice of all proceedings herein and
may make representations, by its counsel, on the hearing of the
application and all interlocutory proceedings. Except as may be
expressly ordered, it shall neither be entitled nor liable to costs.
3 [[1975] F.C. 376]; 19 C.P.R. (2d) 38 [T.D.].
CNCP Telecommunications were not satisfied
with this limited right to make representations on
the hearing of the application and all interlocutory
proceedings so appealed this order, which appeal
was allowed by judgment of the Federal Court of
Appeal dated March 16, 1983, reading as follows:
The appeal is allowed, the order of the Trial Division is set
aside and the appellant is added as a party Respondent to the
prohibition proceedings instituted by Alberta Government Tele
phones in order to prevent the Canadian Radio Television and
Telecommunication Commission from proceeding with the
application made to it by the appellant on the 17th day of
September, 1982. The appellant shall be entitled to their costs
in this Court and in the Court below.
This judgment appears to recognize the right of
the Trial Division to add an interested party as a
party respondent which is what CNCP Telecom
munications had sought.
While no specific reference was made in the
appeal judgment to the Federal Court Rules it
may be that this joinder is covered by Rule
1716(2)(b) which reads as follows:
Rule 1716... .
(2) At any stage of an action the Court may, on such terms
as it thinks just and either of its own motion or on application,
(b) order any person who ought to have been joined as a
party or whose presence before the Court is necessary to
ensure that all matters in dispute in the action may be
effectually and completely determined and adjudicated upon,
to be added as a party,
but no person shall be added as a plaintiff without his consent
signified in writing or in such other manner as the Court may
find to be adequate in the circumstances.
From a procedural point of view it appears to me
to make little difference whether a party who seeks
to intervene with full rights to participate in the
proceedings in the same manner as any other party
is designated as an intervenant or is actually joined
as a party, in this case as an additional respondent.
On the hearing of the present motion to give the
Attorney General of Canada the right to intervene,
counsel for Alberta Government Telephones
opposed this application on various grounds. The
first two, namely that the decision of Justice
Mahoney on the CNCP intervention is res judica-
ta, and that in any event in the absence of a
specific rule there is no jurisdiction for the Trial
Division to grant a right to intervene have already
been disposed of as a result of the decision of the
Court of Appeal. Counsel's third objection is that
no intervention is necessary or useful in any event
since the interest of the CRTC in defending its
jurisdiction is identical with that of the Attorney
General of Canada both of whom will be repre
sented by counsel from the Department of Justice.
It is his contention that the mere fact of having
been given notice of the proceedings gives the
Attorney General of Canada the right to partici
pate in them without the need of any judgment of
the Court. It may well be however that such
participation without the benefit of a judgment
ordering the Attorney General to be added as a
party to the proceedings, whether as an additional
respondent or intervenant, might permit only a
limited participation such as that ordered by the
judgment of Mr. Justice Mahoney. Counsel for the
Attorney General contends, I believe quite proper
ly, that the right to make representations at the
hearing of the application without being permitted
to file evidence by way of affidavit or to cross-
examine the affidavit evidence filed by other par
ties is insufficient. The Attorney General of
Canada might well wish to cross-examine the wit
ness or to present evidence at the initial hearing of
the application for a writ of prohibition, as, if it
did not do so, no such evidence would be before the
Court of Appeal or the Supreme Court of Canada
in any further appeals which might become neces
sary. There might even be some doubt as to wheth
er the CRTC would defend its jurisdiction as
vigorously as the Attorney General of Canada
might wish to do on the constitutional issue. In the
Supreme Court case of Northwestern Utilities
Limited et al. v. City of Edmonton 4 the Board
itself vigorously supported its administrative deci
sion before the Supreme Court. At page 709, Estey
J. in rendering the judgment of the Court states:
Such active and even aggressive participation can have no other
effect than to discredit the impartiality of an administrative
tribunal either in the case where the matter is referred back to
it, or in future proceedings involving similar interests and issues
of the same parties. The Board is given a clear opportunity to
make its point in its reasons for its decision, and it abuses one's
notion of propriety to countenance its participation as a full-
fledged litigant in this Court, in complete adversarial confron
tation with one of the principals in the contest before the Board
itself in the first instance.
4 [1979] 1 S.C.R. 684.
Certainly no such objection could be made to an
appeal by the Attorney General of Canada on the
very important constitutional issue of the jurisdic
tion of the CRTC in this matter.
It is true that the interests of CNCP Telecom
munications which was added as a party by the
judgment of the Court of Appeal are not identical
to those of the Attorney General of Canada,
although it would wish to maintain jurisdiction of
the CRTC, as presumably would the CRTC itself.
CNCP has an important commercial interest in
having their application heard by the CRTC and
in fact it was as a result of this application that
Alberta Government Telephones seeks the writ of
prohibition. The Attorney General of Canada on
the other hand has no commercial interest in the
matter but has a very serious interest in the main
tenance of federal control over telecommunica
tions. Whether the interest of CNCP Telecom
munications is greater or less than that of the
Attorney General of Canada is not a matter which
this Court is called upon to decide, but if there
were good and valid reasons why CNCP Telecom
munications should be added as a party with full
right of participation I find that the same applies
to the Attorney General of Canada. While Alberta
Government Telephones contends that permitting
the Attorney General of Canada to become a party
to the proceedings will open the door to similar
applications by Attorneys General of various inter
ested provinces and perhaps a number of other
interested persons and organizations, it would
appear that most of the persons and organizations
named in an affidavit by Avrem Cohen, General
Counsel of the Canadian Radio-television and
Telecommunications Commission as being likely
to have an interest in the application of CNCP
before it are primarily interested in the merits of
that application rather than in the jurisdiction of
the CRTC to consider the application. In any
event any further applications for intervention will
have to be dealt with on their respective merits,
and the fact that this may complicate and perhaps
extend or delay the hearing of the application for a
writ of prohibition is not a valid ground for refus
ing the present motion to intervene, which will
therefore be granted.
ORDER
The Attorney General of Canada is added as a
party respondent to the prohibition proceedings
instituted by Alberta Government Telephones in
order to prevent the Canadian Radio-television
and Telecommunications Commission from pro
ceeding with the application made to it by CNCP
Telecommunications on September 7, 1982. The
Attorney General of Canada may be represented
by counsel at all stages of said proceedings and
may file such evidence by way of affidavit as he
considers necessary, may cross-examine upon such
affidavit evidence as may be filed by the parties
hereto, and may make such oral and written
representations as are necessary.
With costs.
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.