CNCP Telecommunications v. Alberta Government Telephones and CRTC, (1989) 98 N.R. 161 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest, L'Heureux-Dubé, JJ.
• Court: Supreme Court (Canada)
• Case Date: August 14, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1989), 98 N.R. 161 (SCC);[1989] 2 SCR 225;26 CPR (3d) 289;1989 CanLII 78 (SCC);[1989] 5 WWR 385;[1989] ACS no 84;68 Alta LR (2d) 1;[1989] SCJ No 84 (QL);61 DLR (4th) 193;98 NR 161

CNCP Tel. v. Govt. Telephones (1989), 98 N.R. 161 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Alberta Government Telephones (appellant) v. Canadian Radio-Television and Telecommunications Commission (CRTC) and CNCP Telecommunications (CNCP) (respondents) and Attorney General of Canada, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General for New Brunswick, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Prince Edward Island, Attorney General for Saskatchewan, Attorney General for Alberta and Attorney General of Newfoundland (interveners)

(19731)

Indexed As: CNCP Telecommunications v. Alberta Government Telephones and CRTC

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest, L'Heureux-Dubé, JJ.

August 14, 1989.

Summary:

CNCP Telecommunications applied under the Railway Act for the CRTC to make various orders against Alberta Government Telephones (AGT). AGT applied for a writ of prohibition, submitting that the CRTC had no jurisdiction where AGT was a provincial and local undertaking and was also not bound by the Railway Act because it was a provincial Crown agent.

The Federal Court of Canada, Trial Division, granted the writ of prohibition. The court held that AGT was not a local undertaking, but that the CRTC had no jurisdiction where AGT, as a Crown agent, was not bound by the Railway Act. CNCP appealed.

The Federal Court of Appeal, in a judgment reported 63 N.R. 374, allowed the appeal. The court held that AGT was not a local undertaking and that the Railway Act did not bind a Crown agent where that agent was acting within the ambit of the purposes for which it was created. However, the court held that where the provincial legislature intended AGT to operate a local undertaking and AGT actually operated a federal undertaking it lost its Crown immunity and was therefore bound by the Railway Act and subject to the CRTC's jurisdiction. AGT appealed.

The Supreme Court of Canada, Wilson, J., dissenting, allowed the appeal. The court held that AGT was a work or undertaking within the legislative authority of the federal government under s. 92(10)(a) of the Constitution Act, 1867. However, AGT, as Crown agent, was not bound by the Railway Act.

Constitutional Law - Topic 6641

Federal jurisdiction - Constitution Act, s. 91 - Interprovincial works or undertakings - General - The Supreme Court of Canada stated that in determining whether an undertaking was local (provincial jurisdiction) or interprovincial (federal jurisdiction) the primary concern was the service provided by the undertaking through the use of its physical equipment - Whether the undertaking owned or operated physical facilities outside a particular province was not determinative - The mere interconnection of facilities between provinces may not be sufficient to characterize the undertaking as interprovincial - See paragraphs 57 to 100.

Constitutional Law - Topic 6644

Federal jurisdiction - Constitution Act, s. 91 - Interprovincial works and undertakings - Telecommunications - The Supreme Court of Canada held that Alberta Government Telephones (AGT) was an interprovincial undertaking (federal jurisdiction), not a local undertaking (provincial jurisdiction) - AGT played a crucial role in the national telecommunications system - It was the mechanism through which Alberta residents sent and received interprovincial and international telecommunications services - The court stated that AGT itself operated an interprovincial undertaking through bilateral contracts, its role in Telecom Canada and the physical interconnection of its system at the borders of Alberta - See paragraphs 57 to 100.

Constitutional Law - Topic 7081

Provincial jurisdiction - Constitution Act, s. 92 - Local works and undertakings - Telephones - [See Constitutional Law - Topic 6644 above].

Crown - Topic 25

Definitions - "Her Majesty" defined - Section 16 of the federal Interpretation Act provided in part that "no enactment is binding on Her Majesty ..." - The Supreme Court of Canada held that "Her Majesty" was not limited to the Crown in right of Canada, but included the Crown in right of a province - See paragraphs 102 to 114.

Crown - Topic 407

Statutes affecting the Crown - When Crown agent acting outside purpose of agency - The issue was whether Alberta Government Telephones (AGT), a provincial Crown agent, lost its Crown immunity by exceeding its statutory mandate or Crown purposes - The Supreme Court of Canada held that AGT acted within the scope of the public purposes it was statutorily empowered to pursue and accordingly did not lose its immunity - The court stated that "by entering into a federally regulated area by becoming an interprovincial work or undertaking, a provincial Crown agent does not lose the immunity it would otherwise have" - See paragraphs 146 to 159.

Crown - Topic 410

Statutes affecting the Crown - Where Crown accepts benefits - [See Crown - Topic 2885 below].

Crown - Topic 2806

Crown immunity - General - "Mentioned or referred to" defined - Section 16 of the federal Interpretation Act provided that the Crown was not bound by a statute unless the Crown was "mentioned or referred to" by the statute - The Supreme Court of Canada stated that "mentioned or referred to" included (1) expressly binding words; (2) a clear intention to bind (i.e., intention manifest from the terms of the statute) and (3) an intention to bind where the purpose of the Act would be "wholly frustrated" if the Crown were not bound - See paragraphs 118 to 133.

Crown - Topic 2844

Crown immunity - Agents - Scope of - [See Crown - Topic 407 above].

Crown - Topic 2885

Crown immunity - Exceptions - Benefit/burden or waiver - AGT, a provincial Crown agent, was immune from the application of the federal Railway Act notwithstanding it was an interprovincial undertaking (federal jurisdiction) - The issue was whether AGT waived its immunity by accepting the benefits of the Railway Act - The Supreme Court of Canada stated "waiver occurs only where the Crown takes the benefit of a statute divorced from its enumerated restrictions" - The court agreed that the advantages obtained by AGT under the Railway Act were insufficient to bring it within CRTC jurisdiction under the theory of waiver of Crown immunity - The court stated that "a fairly tight (sufficient nexus) test for the benefit/burden exception follows from the strict test for finding a legislative intention to bind the Crown" - See paragraphs 135 to 145.

Crown - Topic 2886

Crown immunity - Exceptions - Crown acting as commercial enterprise - The issue was whether Alberta Government Telephones, a provincial Crown agent, lost its Crown immunity from application of the federal Railway Act because it was a commercial enterprise - The Supreme Court of Canada stated that there was no commercial exception to Crown immunity - See paragraphs 160 to 165.

Cases Noticed:

Alberta Government Telephones and Alberta (Attorney General) v. Canada Labour Relations Board and International Brotherhood of Electrical Workers, Local 384 (1989), 98 N.R. 264, refd to. [para. 5].

City of Montreal v. Montreal Street Railway, [1912] A.C. 333 (P.C.), consd. [para. 66].

Attorney General for Ontario v. Winner, [1954] A.C. 541 (P.C.), dist. [para. 66].

Northern Telecom Ltd. v. Communications Workers of Canada and Canada Labour Relations Board, [1980] S.C.R. 115; 28 N.R. 107, consd. [para. 67].

Montcalm Construction Inc. v. Minimum Wage Commission et al., [1979] 1 S.C.R. 754; 25 N.R. 1, refd to. [para. 67].

City of Toronto v. Bell Telephone Co. of Canada, [1905] A.C. 52 (P.C.), dist. [para. 68].

Queen in Right of Ontario v. Board of Transport Commissioners, [1968] S.C.R. 118, consd. [para. 68].

Kootenay and Elk Railway Co. v. Canadian Pacific Railway, [1974] S.C.R. 955, consd. [para. 68].

Saskatchewan Power Corp. v. Trans-Canada Pipelines Ltd., [1979] 1 S.C.R. 297; 23 N.R. 145, refd to. [para. 68].

Luscar Collieries Ltd. v. McDonald, [1925] S.C.R. 460, consd. [para. 68].

Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141; 18 N.R. 181, refd to. [para. 72].

Dionne et al. v. Public Service Board (Que.) et al., [1978] 2 S.C.R. 191; 18 N.R. 271, refd to. [para. 73].

R. v. Toronto Magistrates, Ex parte Tank Truck Transport Ltd., [1960] O.R. 497, refd to. [para. 74].

R. v. Cooksville Magistrate's Court, Ex parte Liquid Cargo Lines Ltd., [1965] 1 O.R. 84, refd to. [para. 74].

British Columbia Electric Railway Co. v. Canadian National Railway Co., [1932] S.C.R. 161, consd. [para. 79].

Canadian Pacific Ltd. v. Telesat Canada (1982), 36 O.R.(2d) 229, refd to. [para. 83].

Arrow Transfer Co., Re, [1974] 1 Can. L.R.B.R. 29, refd to. [para. 86].

Fulton et al. v. Energy Resources Conservation Board et al., [1981] 1 S.C.R. 153; 34 N.R. 504, dist. [para. 93].

Pacific Western Airlines, Re, [1978] 1 S.C.R. 61; 14 N.R. 21, consd. [para. 102].

Silver Bros., In re, [1932] A.C. 514, refd to. [para. 112].

Sparling v. Quebec, [1988] 2 S.C.R. 1015; 89 N.R. 120; 20 Q.A.C. 174, consd. [para. 112].

Province of Bombay v. City of Bombay, [1947] A.C. 58 (P.C.), consd. [para. 122].

R. v. Ouellette, [1980] 1 S.C.R. 568; 32 N.R. 361, consd. [para. 124].

R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd., [1983] 2 S.C.R. 551; 50 N.R. 120, dist. [para. 124].

Crooke's Case (1691), 1 Show. K.B. 208; 89 E.R. 540, refd to. [para. 135].

Toronto Transportation Commission v. The King, [1949] S.C.R. 510, refd to. [para. 136].

R. v. Murray, [1967] S.C.R. 309, refd to. [para. 136].

Gartland Steamship Co. v. The Queen, [1960] S.C.R. 315, refd to. [para. 137].

Bonanza Creek Gold Mining Co. v. The King, [1916] 1 A.C. 566 (P.C.), refd to. [para. 147].

R. v. Broadcasting Corporation, CBOFT Television Station and Boissay, [1983] 1 S.C.R. 339; 47 N.R. 119, dist. [para. 151].

Gouvernement de la Republique democratique du Congo v. Venne, [1971] S.C.R. 997, refd to. [para. 163].

Attorney General for British Columbia v. Royal Bank of Canada and Island Amusement Co., [1937] 1 W.W.R. 273, affd. [1937] S.C.R. 459, refd to. [para. 177].

Reid v. Canadian Farm Loan Board, [1937] 4 D.L.R. 248 (Man. K.B.), refd to. [para. 178].

Bank of Montreal v. Bay Bus Terminal (North Bay) Ltd. (1971), 24 D.L.R.(3d) 13 (Ont. H.C.), affd. (1972), 30 D.L.R.(3d) 24 (Ont. C.A.), refd to. [para. 180].

Statutes Noticed:

Alberta Government Telephones Act, S.A. 1958, c. 85, sect. 3 [para. 10].

Alberta Government Telephones Act, R.S.A. 1980, c. A-23, sect. 1(c), sect. 1(d) [para. 13]; sect. 2(2), sect. 4 [para. 12]; sect. 24 [para. 17]; sect. 42(1) [para. 18].

Canada Business Corporations Act, S.C. 1974-75-76, c. 33 [para. 138].

Canadian Radio-Television and Telecommunications Act, S.C. 1974-75-76, c. 49 [para. 2].

Constitution Act, 1867, sect. 91(29), sect. 92(10) [para. 6].

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 18 [para. 2].

Government Railway Act, R.S.C. 1886, c. 38 [para. 132].

Government Telephone and Telegraph Systems, An Act respecting, S.A. 1908, c. 14, sect. 1, sect. 5 [para. 9].

Interpretation Act, R.S.C. 1970, c. I-23, sect. 3(1) [para. 129]; sect. 16 [para. 108]; sect. 28 [para. 110].

National Transportation Act, R.S.C. 1970, c. N-17, sect. 64(1) [para. 35].

Public Utilities Board Act, R.S.A. 1980, c. P-37, sect. 1(j) [para. 15]; sect. 2(b) [para. 14]; sect. 70(1)(c) [para. 19].

Railway Act, R.S.C. 1970, c. R-2, sect. 5 [para. 119]; sect. 320(1), sect. 320(12) [para. 118]; sect. 320(11) [para. 35].

Rural Mutual Telephone Companies Act, S.A. 1935, c. 48 [para. 9].

State Immunity Act, R.S.C. 1985, c. S-18, sect. 5 [para. 163].

Telephone and Telegraph Act, R.S.A. 1922, c. 49 [para. 9].

Telephone and Telegraph Act, R.S.A. 1942, c. 198 [para. 9].

Telephone and Telegraph Act, R.S.A. 1955, c. 332 [para. 9].

Authors and Works Noticed:

Brownlie, I., Principles of Public International Law (3rd Ed. 1979) [para. 162].

Halsbury's Laws of England (4th Ed.), vol. 44, para. 931 [para. 135].

Hogg, Peter W., Constitutional Law of Canada (2nd Ed. 1985), pp. 234 [para. 129]; 511-519 [para. 147].

Hogg, Peter W., Liability of the Crown (1971), pp. 181 [para. 135]; 183 [para. 139].

Lederman, W.R., Telecommunications and the Federal Constitution of Canada, in Telecommunications for Canada: An Interface of Business and Government (H. Edward English, ed.) (1973), p. 348 [para. 147].

McLeod, J.G., The Conflict of Laws (1983), pp. 72-74 [para. 162].

McNairn, Colin, Comment (1978), 56 Can. Bar Rev. 145, p. 150 [para. 114].

McNairn, Colin, Governmental and Intergovernmental Immunity in Australia and Canada (1977), p. 10 [para. 139].

Swinton, Katherine, Federalism and Provincial Government Immunity (1979), 29 U. of T. Law J. 1, pp. 19 [para. 115]; 28-29 [para. 164].

Counsel:

Colin K. Irving, John D. Rooke, Peter Hogg, Q.C., and Franklin S. Gertler, for the appellant and for the Attorney General for Alberta;

Greg Van Koughnett, for the respondent, CRTC;

C.R.O. Munro, Q.C., and M.H. Ryan, for the respondent, CNCP;

Eric A. Bowie, Q.C., and Donald J. Rennie, for the Attorney General of Canada;

Jean-Yves Bernard and Alain Gingras, for the Attorney General of Quebec;

Reinhold M. Endres, for the Attorney General of Nova Scotia;

Bruce Judah, for the Attorney General of New Brunswick;

Glenn McFetridge and Dianne Paskewitz, for the Attorney General of Manitoba;

E.R.A. Edwards, Q.C., for the Attorney General of British Columbia;

Roger B. Langille and Charles P. Thompson, for the Attorney General of Prince Edward Island;

Robert G. Richards, for the Attorney General for Saskatchewan;

Ronald Stevenson, for the Attorney General of Newfoundland.

Solicitors of Record:

Burnet, Duckworth & Palmer, Calgary, Alberta, for the appellant and for the intervener Attorney General for Alberta;

Attorney General of Quebec, Ste-Foy, Quebec, for the intervener the Attorney General of Quebec;

Attorney General of Nova Scotia, Halifax, Nova Scotia, for the intervener the Attorney General of Nova Scotia;

Deputy Attorney General, Fredericton, New Brunswick, for the intervener the Attorney General for New Brunwick;

Tanner Elton, Winnipeg, Manitoba, for the intervener the Attorney General of Manitoba;

Attorney General of British Columbia, Victoria, British Columbia, for the intervener the Attorney General of British Columbia;

Attorney General of Prince Edward Island, Charlottetown, Prince Edward Island, for the intervener the Attorney General of Prince Edward Island;

Brian Barrington-Foote, Regina, Saskatchewan, for the intervener the Attorney General for Saskatchewan;

Attorney General of Newfoundland, St. John's, Newfoundland, for the intervener the Attorney General of Newfoundland;

Canadian Pacific Law Department, Montreal, Quebec, for the respondent CNCP Telecommunications;

Canadian Radio-Television and Telecommunications Commission, Hull, Quebec, for the respondent Canadian Radio-Television and Telecommunications Commission;

Deputy Attorney General, Ottawa, Ontario, for the intervener Attorney General of Canada.

This appeal was heard on November 12 and 13, 1987, before Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ., of the Supreme Court of Canada.

On August 14, 1989, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Dickson, C.J.C. (McIntyre, Lamer, La Forest and L'Heureux-Dubé, JJ., concurring) - see paragraphs 1 to 169;

Wilson, J., dissenting - see paragraphs 170 to 191.

Beetz, Estey and Le Dain, JJ., did not participate in the judgment.