Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the federal court of appeal
Judicial review ‑‑ Standard of review ‑‑ Canadian Radio‑television and Telecommunications Commission ‑‑ Standard of review applicable to CRTC decision ‑‑ Conflict between CRTC decision and that of labour arbitration board ‑‑ Whether Federal Court of Appeal justified in interfering with CRTC decision.
Judicial review ‑‑ Conflicting decisions of two administrative tribunals ‑‑ Whether compliance with CRTC decision resulting in violation of labour arbitration decision ‑‑ If so, which of the two conflicting decisions should take precedence.
Following a grievance by TWU, which represents BC Tel employees, a labour arbitration board found that BC Tel was in violation of its collective agreement with TWU when it permitted cable companies to install cables on BC Tel's support structure. The collective agreement specifically provides that "[a]ny work having to do with the maintenance, repair, alteration or construction of the telephone plant shall be assigned to" TWU members. As a result of the labour arbitration decision, BC Tel submitted a revised support structure agreement to the CRTC for approval, indicating that it could no longer allow cable companies to install cables on its support structure. In response, Shaw Cable applied to the CRTC for a decision requiring BC Tel to permit Shaw or its contractors to install cables on BC Tel's support structure in accordance with the existing support structure agreement approved by the CRTC in 1980. In its decision, the CRTC noted that, pursuant to its statutory mandate to ensure that rates are just and reasonable and that they do not confer an undue preference, it had consistently found that cable companies had to have the option, on reasonable terms and conditions, to install their own cable facilities in or on BC Tel's support structure through contractors approved by the cable companies, and directed BC Tel to provide Shaw Cable with access to its support structure. On appeal, the Federal Court of Appeal set aside the CRTC decision. The court acknowledged the dilemma faced by BC Tel in that it could not comply with both its collective agreement, as interpreted by the labour arbitration board, and the decision of the CRTC. The court found that the determination of whether or not the particular work fell within the collective agreement was primarily an issue of labour relations, rather than the regulation of telephone tolls, and that the CRTC had exceeded its jurisdiction by requiring that BC Tel violate the terms of its collective agreement with TWU. The issue in this appeal is whether the Federal Court of Appeal was justified in interfering with the CRTC decision.
Held: The appeal should be allowed.
(1) Standard of Review
The CRTC is a specialized administrative tribunal which possesses considerable expertise over the subject matter of its jurisdiction. A specialized tribunal such as the CRTC, acting within its area of expertise and jurisdiction, is entitled to curial deference, even in the absence of a privative clause and the presence of a statutory right of appeal. On jurisdictional questions and questions of law outside its area of expertise, the CRTC's decisions are to be reviewed on a standard of correctness.
At the time of its decision, the CRTC clearly had the jurisdiction to require telephone companies to allow cable companies to use their support structure and, by virtue of ss. 335 and 340 of the Railway Act, to regulate the terms of support structure agreements between the telephone companies and cable companies. The CRTC also had jurisdiction to determine which company, the cable company or the telephone company, would be responsible for the installation of a cable company's facilities on the telephone company's support structure. This jurisdiction is a natural extension of the CRTC's jurisdiction to regulate tolls and tariffs under ss. 335 and 340. Indeed, the determination of who is responsible for the installation of the cable facilities is a necessary component of the regulation of the prices charged by the telephone companies for cable company access to their support structure. As well, such jurisdiction flows naturally from the CRTC's jurisdiction to require a telephone company to allow a cable company to use its support structure. It is difficult to contemplate permitting the CRTC to mandate cable company access to telephone company infrastructure and not allowing the CRTC to mandate the quality of such access. In any event, in reaching its decision, the CRTC found implicitly that the retention by BC Tel of an exclusive right to perform the installation work constituted an undue preference within the meaning of s. 340(2). The CRTC thus had the necessary jurisdiction to require that the telephone company permit the cable company to use its own contractors to perform the installation work. The determination of who is responsible for the installation work, while incidently affecting labour relations, is not, in pith and substance, a matter of labour relations. Instead, it is an important component of the regulation of telephone companies which is within both the jurisdiction and the expertise of the CRTC. The CRTC is therefore entitled to curial deference by a court reviewing its decision through a statutory right of appeal. Since the CRTC decision was reasonable, absent the decision of the arbitration board it would have been inappropriate for the Federal Court of Appeal, applying the normal standard of review, to have interfered with the CRTC decision.
(2) Operational Conflict
Where administrative tribunals reach operationally conflicting decisions (i.e., where compliance with one necessitates violation of the other), it is the responsibility of the courts, exercising their inherent jurisdiction, to determine which of the two conflicting decisions should take precedence. To do so, a court must first ascertain whether either decision, absent the other, could be overturned applying the standard of review generally applicable to that decision. If, as here, both conflicting decisions would normally withstand an application for judicial review or an appeal, the remaining question is whether the courts should be willing to interfere in order to resolve the conflict. Where there is a true operational conflict, the courts must be willing to take some such action. In particular, the courts have jurisdiction to declare decisions of administrative tribunals inoperative to the extent that they are in operational conflict with decisions of other administrative tribunals. Such judicial action is consistent with legislative intent. Where the legislature creates two administrative tribunals which reach valid decisions that are in true operational conflict, the "presumption of legislative coherence" requires the courts to abandon policies of curial deference and attempt to reconcile the conflict. In those few cases where there is true operational conflict, the courts' jurisdiction to review the conflicting administrative decisions is not ousted by privative clauses. To determine which of the two conflicting decisions should take precedence, the courts should employ a "pragmatic and functional" approach and decide, in light of the policy scheme surrounding each of the administrative tribunals and the nature of each of the conflicting decisions, which of the decisions the legislature would have intended to take precedence. In making that decision, the courts should consider several factors, including the legislative purpose behind the establishment of each administrative tribunal, the extent to which an administrative tribunal's decision is central to the purpose of that tribunal, and the degree to which an administrative tribunal, in reaching a decision, is fulfilling a policy‑making or policy implementation role.
(3) Application to this Case
Per Lamer C.J. and La Forest, Cory, McLachlin and Iacobucci JJ.: Operational conflict exists whenever two decisions of different administrative boards create a conflict which makes it impossible for a claimant to fulfil simultaneously its legal obligations, as defined by the respective boards. A claimant should be able to turn to the courts for clarification whenever conflicting decisions impose different legal obligations. The fact that those obligations find their source in the collective agreement does not negate their enforceability. It is artificial to predicate the right to a ruling on which legal obligation prevails on the distinction between a mandatory order and an order which provides a different remedy. The orders of the CRTC and of the labour arbitration board in this case impose inconsistent legal obligations on BC Tel and it follows that it should be able to ask the courts which has priority. The CRTC's decision, being an expression of the broad policy‑making role accorded to it by Parliament, should take precedence over the decision of the labour arbitration board to the extent of the inconsistency.
Per L'Heureux‑Dubé, Sopinka, Gonthier and Major JJ.: The decisions of the CRTC and of the arbitration board are not in operational conflict. Compliance by BC Tel with the CRTC decision will not result in a violation of the labour arbitration decision per se. Instead, it will result in a violation of the collective agreement. The labour arbitration decision is merely an interpretation of the collective agreement. It does not require BC Tel to act in a particular way; it simply describes the manner in which BC Tel itself promised to act. Consequently, there is not an actual operational conflict justifying judicial intervention and it is therefore appropriate to let both the labour arbitration board's decision and that of the CRTC stand. However, had the decision of the CRTC and that of the labour arbitration board been in operational conflict, the CRTC's decision would have taken precedence over that of the arbitration board to the extent of the operational inconsistency. The CRTC, in requiring BC Tel to let cable companies install their own facilities on BC Tel's support structure, was implementing a policy decision, whereas the labour arbitration board was merely interpreting a private contract relating to the internal arrangements made by BC Tel to carry out the activities assigned to it. Where two equally valid decisions of administrative tribunals are in operational conflict, precedence must be given to the decision which represents an expression of one tribunal's policy-making function in circumstances where the other decision is a purely adjudicative decision concerning the interpretation of a private contract. The legislature, in establishing the two tribunals, could not have intended the opposite for this would effectively enable private parties to contract out of public policy obligations. A private party such as BC Tel should not be permitted, whether intentionally or not, to bypass, by means of a contract or a collective agreement, regulatory requirements imposed on it in the public interest.
Per Cory and Iacobucci JJ.: Collective agreements, and in particular the clause reserving an exclusive right to work for a bargaining unit, provide the foundation for the entire system of labour relations. In light of the importance of such clauses, any characterization of the collective agreement or a particular clause of it which suggests that they represent an attempt by BC Tel or the TWU either to contract out of the public obligations imposed by the various telecommunications statutes or to extend improperly the scope of BC Tel's authority should be opposed. Moreover arbitration provided by labour legislation has a role of significant public importance and labour arbitrators are the instruments by which the general legislative policy is implemented. They have a special expertise and experience in interpreting collective agreements and in resolving labour disputes. Here, the operational conflict does not arise because of the collective agreement but, rather, because of the manner in which the labour arbitrator interpreted the collective agreement. The labour arbitrator's decision is an interpretation which mandates particular action in the same way as a court's interpretation of a statute mandates that particular consequences follow. To resolve the operational conflict, it is thus necessary to balance the overlapping jurisdiction, the aims and the purposes of two administrative tribunals. In the present circumstances, the CRTC's decision ‑‑ a policy decision ‑‑ must take precedence. The exclusive right to work clause, however, will continue to be binding on the parties, except in those circumstances where it conflicts with the CRTC's decision.
Per Lamer C.J. and La Forest J.: Subject to McLachlin J.'s proposed resolution of the conflict between the CRTC decision and that of the labour arbitration board, the reservation expressed by Cory J. is agreed with.
Cases Cited
By L'Heureux‑Dubé J.
Applied: Transvision (Magog) Inc. v. Bell Canada, [1975] CTC 463; referred to: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Bell Canada v. Canada (Canadian Radio‑television and Telecommunications Commission), [1989] 1 S.C.R. 1722; Hodge v. The Queen (1883), 9 App. Cas. 117; Alberta Power Ltd. v. Alberta (Public Utilities Board) (1990), 72 Alta. L.R. (2d) 129.
By Sopinka J.
Referred to: Telecommunications Workers Union v. Canada (Radio-television and Telecommunications Commission), [1995] 2 S.C.R. 781.
Statutes and Regulations Cited
Canada Labour Code , R.S.C., 1985, c. L‑2 , s. 58 .
Canadian Radio‑television and Telecommunications Commission Act , R.S.C., 1985, c. C‑22 .
National Telecommunications Powers and Procedures Act, R.S.C., 1985, c. N‑20 [rep. 1993, c. 38, s. 130], ss. 49, 50, 68(1).
Railway Act, R.S.C., 1985, c. R‑3, ss. 2(1) "telephone toll", "toll", 326 [formerly s. 317], 335(1) [rep. & sub. 1991, c. 11, s. 86], (2), 339(1) [idem, c. 37, s. 2], 340 [am. 1991, c. 11, s. 87].
Telecommunications Act , S.C. 1993, c. 38 , s. 43(5) .
APPEAL from a judgment of the Federal Court of Appeal, [1993] 3 F.C. 179, 155 N.R. 161, 103 D.L.R. (4th) 726, 13 Admin. L.R. (2d) 250, 93 CLLC ¶14,050, setting aside a decision of the Canadian Radio‑television and Telecommunications Commission. Appeal allowed.
Thomas G. Heintzman, Q.C., and Susan L. Gratton, for the appellant Shaw Cable Systems (B.C.) Ltd.
Avrum Cohen, Allan Rosenzveig and Carolyn Pinsky, for the appellant the CRTC.
Jack Giles, Q.C., Judy Jansen and Alison Narod, for the respondent British Columbia Telephone Co.
Morley D. Shortt, Q.C., and Donald Bobert, for the respondent Telecommunications Workers Union.
The reasons of Lamer C.J. and La Forest J. were delivered by
1 Lamer C.J. -- I have had the opportunity to read the reasons of my colleagues, L'Heureux-Dubé, Cory, and McLachlin JJ. I am in substantial agreement with the reasons of L'Heureux-Dubé J. and agree with her disposition of the case. I concur, however, with the reservations expressed by both Cory and McLachlin JJ. and I agree with McLachlin J.'s proposed resolution of the conflict between the CRTC decision and the decision of the labour arbitration board. I would allow the appeal and restore the decision of the CRTC.
The reasons of L'Heureux-Dubé, Gonthier and Major JJ. were delivered by
2 L'Heureux-Dubé J. -- This case concerns the appropriate standard of review where an administrative tribunal, here the Canadian Radio-television and Telecommunications Commission ("CRTC"), reaches a decision which allegedly conflicts with that of a second administrative tribunal, here a labour arbitration board appointed under the Canada Labour Code , R.S.C., 1985, c. L-2 . Effectively, this case raises three principal issues. First, what is the standard of review generally applicable to CRTC decisions? Second, is this standard of review somehow altered in situations where the decision of the CRTC that is being challenged is in conflict with that of another administrative tribunal? Third, is there such a conflict in the case at hand?
I. Facts
3 The respondent British Columbia Telephone Company ("BC Tel") provides telephone service in British Columbia through a support structure of poles and aerial cables as well as buried conduit. The appellant Shaw Cable Systems (B.C.) Ltd. ("Shaw") and other cable companies provide cable television service in British Columbia through cables, some of which are installed in and on BC Tel's support structure. Cable company access to BC Tel's support structure is governed by Support Structure Agreements ("SSAs").
4 The respondent Telecommunications Workers Union ("TWU") represents the BC Tel employees who do repair, maintenance, alteration and construction work on the BC Tel support structure. The CRTC is the federal regulatory body which regulates both BC Tel and the cable companies, and which approves the SSAs between them.
5 Since about 1977, BC Tel and the cable companies have disagreed about cable company access to BC Tel's support structure for installation of cable facilities. At the root of this disagreement is BC Tel's collective agreement with the TWU which created, at all material times, an exclusive right to certain work by union members. Specifically, the collective agreement provided that:
Any work having to do with the maintenance, repair, alteration or construction of the telephone plant shall be assigned to qualified journeymen telephone workers, shopmen, or to apprentices under the supervision of journeymen.
6 Initially, relying on this provision of its collective agreement, BC Tel proposed that its employees perform the installation of all cable company facilities on BC Tel's support structure and that the cable companies pay BC Tel for such work according to a CRTC approved tariff. This proposal was considered by the CRTC in Telecom Decision CRTC 78-6 ("Decision 78-6"), issued on July 28, 1978. In that decision, the CRTC held that BC Tel was not justified in seeking to install cable facilities itself. Specifically, the CRTC rejected BC Tel's argument that it was precluded by its collective agreement from permitting third parties from installing their own facilities at their own expense. In this respect, the CRTC stated:
... the clause in question does not appear to prohibit the Company from permitting third parties from installing their own facilities at their own expense. Moreover, the Commission is concerned that an exclusive restriction of this kind may constitute an unjust preference under section 321(2) of the Railway Act [R.S.C. 1970, c. R-2 (now R.S.C., 1985, c. R-3, s. 340(2))], although in the absence of argument on the point, the Commission does not make an explicit finding at this time.
7 Decision 78-6 was intended to provide guidance for negotiations between BC Tel and the cable companies over the content of the SSAs between them. However, almost a year after the release of Decision 78-6, BC Tel and the cable companies were still unable to reach full agreement on the terms of such SSAs. As a result, by Telecom Decision CRTC 79-22 ("Decision 79-22"), the CRTC settled the remaining issues between the parties. An SSA drafted in accordance with Decisions 78-6 and 79-22 was then submitted by the parties and approved by the CRTC through Telecom Order CRTC 80-147. This SSA provided that cable companies could install their own cable facilities on BC Tel's support structure provided the installation procedures did not include the "intentional dislocation of Company [BC Tel] property".
8 Following installation work done by a cable company pursuant to the SSA, the TWU initiated labour arbitration proceedings leading to the Williams Award of January 25, 1983. In the Williams Award, a labour arbitration board held that the cable company:
... had installed its coaxial cable in such a manner that it "had to do with the maintenance, repair and construction of the B.C. Tel plant". The installation, executed with the approval of the B.C. Telephone Company, did have the effect of altering the plant and to that extent contravened the Collective Agreement.
The arbitration board also stated, however, that "[s]o long as the B.C. Telephone Company specifies reasonable terms based on its Collective Agreement obligations, the cable companies may use their own contractors" to perform installation work. For example, the arbitration board suggested that allowing BC Tel employees to be present during cable installations to handle BC Tel equipment might be a workable scheme which would not breach the collective agreement.
9 After the Williams Award, BC Tel refused to allow cable companies to do any installation work and the Canadian Cable Television Association ("CCTA"), an association representing cable companies, complained to the CRTC. The TWU intervened in the dispute, arguing that the CRTC could not order BC Tel to violate its collective agreement. The CRTC ruled on July 28, 1987 that BC Tel's position contravened two earlier CRTC decisions and that the Williams Award did not require that all installation work be performed by BC Tel employees. The CRTC concluded that:
It appears from the record that this position is not based upon the arbitration board's interpretation of the collective agreement but upon B.C. Tel's acceptance of the TWU's view that the spinning work performed by the cable licensees should instead be performed by B.C. Tel employees. The board did not express this opinion. Instead, it was of the view that the obligations under the collective agreement could be met using a scheme whereby B.C. Tel employees were present during the cable spinning for the purpose of handling the B.C. Tel equipment.
This approach parallels that of the Commission in Decision 79-22 where the C.R.T.C. noted that B.C. Tel, not cable, employees should dislocate B.C. Tel property.
In the absence of an arbitration board ruling that the collective agreement would not permit the work contemplated in those Decisions, there seems to be no reason to alter the status quo. The Commission therefore orders B.C. Tel to permit cable licensees to do the spinning work required to install their coaxial cable on B.C. Tel support structures in accordance with the terms of the [Support Structure] Agreement.
10 After this decision BC Tel once again permitted cable companies to install their own cables on its support structure. As a result, the TWU filed another grievance which led to the Glass Award of July 19, 1991. In the Glass Award, an arbitration board considered specific installation activities performed by cable companies in accordance with the SSA. Specifically, the arbitration board considered two installation activities: (i) the spinning of aerial cables, and (ii) the installation of underground cables in BC Tel's conduit system (and splice boxes or tubs). The arbitration board found that BC Tel was in violation of its collective agreement when it permitted cable companies to perform these installation activities. As regards the CRTC's 1987 letter decision, the arbitration board stated:
It appears that the C.R.T.C.'s policy in this area is influenced by its perception of whether or not the assignment of the work contemplated in those decisions to persons other than members of the T.W.U. bargaining unit amounts to a breach of the collective agreement between B.C. Tel and the T.W.U.
It is not for us to comment on whether that policy is properly affected or influenced by such a consideration, but we are certainly obliged to rule on whether or not a violation of the collective agreement has occurred and we will proceed to do so.
11 Following the Glass Award, in October 1991, BC Tel submitted a revised SSA to the CRTC for approval, noting that the Glass Award made it impossible for the company to allow cable companies to install cables on BC Tel's support structure. On November 27, 1991, Shaw applied to the CRTC pursuant to s. 49 of the National Telecommunications Powers and Procedures Act, R.S.C., 1985, c. N-20 ("NTPPA"), for a decision requiring BC Tel to permit Shaw or its contractors to install cable as provided for in the existing SSA approved by the CRTC in 1980. The resulting decision, Telecom Letter Decision CRTC 92-4 ("Decision 92-4"), discussed below, is the subject of the appeal in the case at hand.
II. Decisions
Telecom Letter Decision CRTC 92-4, June 26, 1992
12 The CRTC noted that pursuant to ss. 49(2) and 50 NTPPA and s. 335(2) of the Railway Act, R.S.C., 1985, c. R-3, it had a duty to approve the tolls of telecommunications service offerings, including related terms and conditions. In particular, the CRTC noted that all terms which described the nature of the service offered or affected its value had to be approved by the CRTC. Accordingly, the CRTC stated that its authority over SSAs extended to the terms of service and that the CRTC therefore had to consider the amended SSA proposed by BC Tel.
13 The CRTC, however, considered it appropriate to dispose of the issue of cable company access to BC Tel's support structure before making a final determination regarding the proposed SSA. In this respect, the CRTC noted that, pursuant to its statutory mandate to ensure that rates are just and reasonable and that they do not confer an undue preference, it had consistently determined that BC Tel had to provide cable companies with access to its support structure. Specifically, the CRTC noted that it had consistently found that cable companies had to have the option, on reasonable terms and conditions, to install their own cable facilities in or on BC Tel's support structure through contractors approved by the cable company. The CRTC indicated its continued support for this position and found that any amendments to the SSA had to reflect its view on this matter. Accordingly, in response to Shaw's application, the CRTC directed BC Tel to comply with its obligations to permit Shaw and other cable companies to install their own cable on BC Tel's support structure.
14 As regards the amended SSA proposed by BC Tel, the CRTC noted that it contained several provisions which did not reflect the CRTC's view on the rights of cable companies to have access to support structures and the obligation to provide such access. The CRTC also noted that there were several other matters in the proposed SSA that were in dispute between the cable industry and BC Tel. As a result, the CRTC stated:
In order to assist the Commission in assessing B.C. Tel's application, the Commission requests CCTA to outline the major areas of disagreement, other than the issue disposed of in this letter decision, and to provide its comments on each of those areas. CCTA is to file its comments within 30 days, serving a copy on B.C. Tel. B.C. Tel may file its response within 20 days of receipt of CCTA's comments, indicating any additional areas of contention. A copy is to be served on CCTA at the same time. The Commission will then be in a position to determine if further information is required or, if not, to rule on the proposed SSA.
15 It is the portion of the CRTC's decision relating to the right of cable companies to install their own facilities on BC Tel's support structure that is under dispute in this appeal.
Federal Court of Appeal, [1993] 3 F.C. 179
16 Mahoney J.A., for a unanimous court, noted that BC Tel faced a dilemma in that it could not comply with both the order of the CRTC that it permit cable companies to install their own cables on its support structure and the provision of its collective agreement with the TWU, as interpreted by the arbitration board, that any work having to do with the telephone plant be assigned to union employees. After reviewing the procedural history of the case and the prior decisions of the CRTC and the labour arbitration boards, the court observed that the CRTC had ordered BC Tel to do again what had been determined by an arbitration board to be in violation of the collective agreement and that therefore Decision 92-4 and the decision of the arbitration board could not stand together.
17 The court stated that it was unaware of any authority on the question of deference, if any, owed by one tribunal to the decisions of another. Nor did it feel that the issue was one of deference in the sense of deference owed by courts in reviewing the decisions of administrative tribunals. Neither the CRTC nor the arbitration board had the power to interfere with the decision of the other. According to the court, the jurisdictions of the CRTC and the arbitration board did not overlap, although they might lead, as here, to irreconcilable results.
18 The court held that the result of the conflicting decisions was patently unreasonable and that the appropriate approach to the resolution of this issue could be found in the pragmatic and functional approach adopted by this Court in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048. Specifically, it held that (at p. 192):
... where the patently unreasonable result flows from conflicting decisions of different tribunals, Bibeault suggests a way it may be resolved. A comparison of the competing constituting enactments, their purposes and the purposes of the tribunals in the legislative schemes, the respective areas of expertise and the nature of the problem that has given rise to the unreasonable result can, I believe, be the basis for a conclusion that one or the other has erred in law or jurisdiction by failing to take account of the other's decision.
19 In this respect, the court first considered the statutory scheme and nature of the CRTC. It was beyond doubt that the CRTC had the jurisdiction and mandate to regulate all relevant aspects of BC Tel's business. The primary relevant source of jurisdiction was found in ss. 335(1) and 339(1) of the Railway Act, as well as ss. 49 and 50 NTPPA. Furthermore, the court noted that in Transvision (Magog) Inc. v. Bell Canada, [1975] CTC 463, the Canadian Transport Commission ("CTC") had found that support structures were assets of a telephone company's public utility function required to be made available to others on a regulated basis. This proposition had not, so far as the court was aware, been challenged since. Similarly the court noted that the duty to regulate tolls so as to preclude undue preference was clearly set out in s. 340 of the Railway Act and that since at least 1978, the CRTC had required that cable companies and their contractors be given access to BC Tel's support structure to install cable in order to avoid according BC Tel an undue advantage or preference. It was also noted that the expertise of the CRTC in determining reasonable tolls and the avoidance of undue preferences was to be accepted as a matter of fact and law. Finally, the court observed that s. 68(1) NTPPA provided for an appeal, with leave, to the Federal Court of Appeal on a question of law or jurisdiction.
20 The court next considered the nature of an arbitration board, noting that it was a statutory tribunal constituted under the Canada Labour Code . However, an arbitration board was also found to be an inherently ad hoc tribunal whose members' expertise was by no means as evident, as a matter of fact, as the expertise of the members of the CRTC in their area. Nonetheless, it was noted (at p. 195) that s. 58 of the Canada Labour Code provided a virtually "impenetrable privative provision" insulating the proceedings of an arbitrator or board from judicial interference.
21 The court did not regard the conflict between the decisions of the CRTC and the arbitration board as calling for deference by one to the decision of the other in the sense of judicial deference to a decision subject to judicial review. Moreover, the court found that there was nothing in the relative importance of the CRTC and the arbitration board or in the expertise of their members that would lead to the conclusion that the decision of one was paramount as it incidentally bore on the decision of the other. Applying the pragmatic approach, the court held that the determination of whether or not the particular work fell within the collective agreement was primarily an issue of labour relations rather than the regulation of telephone tolls. The arbitration board in no way purported to interfere with the CRTC's determination in the exercise of its jurisdiction that to avoid an undue advantage to BC Tel, cable companies had to be given access for installation purposes to the support structures. The arbitration board simply interpreted the collective agreement.
22 The question thus became whether the CRTC erred in law or exceeded its jurisdiction by ordering BC Tel to violate a requirement of the collective agreement by doing again that which the arbitration board had conclusively determined was in violation of that agreement.
23 It was noted that the assignment of the exclusive right to perform particular work to members of the bargaining unit was a very common term of collective agreements and that its omission would be extraordinary. Accordingly, the court found that the CRTC had not been given the power to require that a company, subject to its regulatory mandate, violate its collective bargaining obligations bona fide undertaken and that "the CRTC exceeded its jurisdiction by requiring that B.C. Tel again violate the terms of its collective agreement with TWU in the respects which the Glass Award held had already violated it" (p. 197). The appeal was therefore allowed and the matter was referred back to the CRTC for reconsideration and decision on the basis that it does not have the jurisdiction to order BC Tel to violate the terms of its collective agreement with the TWU.
III. Points in Issue
1.Absent the decision of the labour arbitration board, would the Federal Court of Appeal, applying the standard of review generally applicable to CRTC decisions, have been justified in interfering with the decision of the CRTC?
2.Does the existence of the labour arbitration board decision, which allegedly conflicts with the decision of the CRTC, somehow modify the answer to the first question?
IV. Analysis
24 The main issue in this case concerns whether or not a judicial remedy is available where two administrative tribunals reach inconsistent decisions, neither of which would normally be interfered with by the courts given the standard of review generally applicable to the tribunals in question. This question was first considered in Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, where the conflict in question was jurisprudential. In the case at hand, we are asked to consider the same question in light of an alleged operational conflict between the decisions of two administrative tribunals.
25 This case comes to this Court by way of appeal from a decision of the Federal Court of Appeal allowing an appeal from a decision of the CRTC which was in alleged conflict with an earlier decision of an arbitration board. Both the CRTC decision and the arbitration board decision related to the installation by cable companies of cable facilities on the support structure of BC Tel.
26 Before us, the respondents argued that the decision of the Federal Court of Appeal to quash Decision 92-4 should be upheld on the ground that the CRTC did not have the necessary jurisdiction to reach the decision in question. The appellants, on the other hand, argued that the Federal Court of Appeal decision should be overturned on the ground that Decision 92-4 was a valid policy decision within the jurisdiction of the CRTC.
27 In order to resolve the substance of this dispute it is necessary to address the two points in issue outlined earlier.
1.Absent the decision of the labour arbitration board, would the Federal Court of Appeal, applying the standard of review generally applicable to CRTC decisions, have been justified in interfering with the decision of the CRTC?
(a) Standard of Review
28 In determining the standard of review applicable to an administrative tribunal, a number of factors are relevant. Specifically, it is necessary to consider the tribunal's role or function, whether or not the tribunal is protected by a privative clause, the expertise of the tribunal, and the nature of the question considered by the tribunal.
29 In light of these factors, the courts have developed, as Iacobucci J. noted in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, "a spectrum [of standards of review] that ranges from the standard of reasonableness to that of correctness" (p. 590). Describing these two ends of the spectrum, Iacobucci J. stated (at p. 590):
At the reasonableness end of the spectrum, where deference is at its highest, are those cases where a tribunal protected by a true privative clause, is deciding a matter within its jurisdiction and where there is no statutory right of appeal....
At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of a provision limiting the tribunal's jurisdiction (jurisdictional error) or where there is a statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question ....
30 The case at hand concerns a specialized administrative tribunal, the CRTC, which possesses considerable expertise over the subject matter of its jurisdiction. However, despite the expertise of the CRTC, its decision in the case at hand is not protected by a privative clause and is, in fact, subject to an express statutory right of appeal. Nonetheless, it was clearly established in both Pezim, supra, and Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 1 S.C.R. 1722, that a specialized tribunal such as the CRTC, acting within its area of expertise and jurisdiction, is entitled to curial deference, even in the absence of a privative clause and the presence of a statutory right of appeal. For example, in Bell Canada, this Court, considering the appropriate standard of review from a decision of the CTC (which then exercised the regulatory powers of the Railway Act, in respect of telecommunications now exercised by the CRTC), stated, at p. 1746:
However, within the context of a statutory appeal from an administrative tribunal, additional consideration must be given to the principle of specialization of duties. Although an appeal tribunal has the right to disagree with the lower tribunal on issues which fall within the scope of the statutory appeal, curial deference should be given to the opinion of the lower tribunal on issues which fall squarely within its area of expertise. The Canadian Pacific case is an example of a situation where curial deference towards a decision of the Canadian Transport Commission involving the interpretation of a tariff was appropriate. [Emphasis added.]
Similarly, in Pezim, this Court stated at pp. 591-92:
[E]ven where there is no privative clause and where there is a statutory right of appeal, the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal's expertise. This point was reaffirmed in United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316 (Bradco), where Sopinka J., writing for the majority, stated the following at p. 335:
...the expertise of the tribunal is of the utmost importance in determining the intention of the legislator with respect to the degree of deference to be shown to a tribunal's decision in the absence of a full privative clause. Even where the tribunal's enabling statute provides explicitly for appellate review, as was the case in Bell Canada, supra, it has been stressed that deference should be shown by the appellate tribunal to the opinions of the specialized lower tribunal on matters squarely within its jurisdiction.
On the other side of the coin, a lack of relative expertise on the part of the tribunal vis‑à‑vis the particular issue before it as compared with the reviewing court is a ground for a refusal of deference.
31 Accordingly, I conclude that the CRTC is entitled to curial deference with respect to questions of law within its area of jurisdiction and expertise. However, as regards jurisdictional questions and questions of law outside the CRTC's area of expertise, the CRTC is entitled to no deference and is to be reviewed on a standard of correctness.
32 In order to apply this standard of review to the case at hand, it is necessary to determine whether Decision 92-4 is within the area of expertise and jurisdiction of the CRTC.
(b)The Jurisdiction and Expertise of the CRTC
33 The CRTC is an independent regulatory authority established by the Canadian Radio-television and Telecommunications Commission Act , R.S.C., 1985, c. C-22 , in part, to exercise those powers relating to federally-regulated telephone companies as were set out, at the time of this appeal, in, inter alia, the Railway Act and the NTPPA, and as are presently contained in the Telecommunications Act , S.C. 1993, c. 38 . In the case at hand, I will be examining the jurisdiction of the CRTC as it existed in 1992, the year of Decision 92-4. Decision 92-4 was issued prior to the enactment of the Telecommunications Act . Accordingly, in discussing the CRTC's jurisdiction, I will refer to then applicable statutory provisions, which may have since been repealed and replaced by provisions in the Telecommunications Act . In this respect, I note that while the jurisdiction of the CRTC today, under the Telecommunications Act , is likely quite similar to that of the CRTC in 1992, it is not necessarily identical.
34 It is generally accepted by all the parties to these proceedings that, as part of its broad jurisdiction, the CRTC clearly had, at the time of Decision 92-4, the jurisdiction to (i) require telephone companies to allow cable companies to use their support structure and (ii) regulate the terms of the SSAs between the telephone companies and cable companies governing the terms of this use. These two basic components of the CRTC's jurisdiction are well established and are not the subject of dispute in the case at hand.
35 First, as regards the jurisdiction of the CRTC to require telephone companies to allow cable companies to use their support structure, the decision of the CTC in Transvision, supra, clearly established, as was noted by the Federal Court of Appeal (at p. 193), that "support structures were assets of a telephone company's public utility function required to be made available to other users on a regulated basis". (Emphasis added.)
36 Second, the CRTC's jurisdiction to regulate the terms of the SSAs governing cable company use of telephone company support structures was clearly provided by ss. 335 and 340 of the Railway Act, as these sections read at the time of Decision 92-4:
335. (1) Notwithstanding anything in any other Act but subject to subsection (1.1), all telegraph and telephone tolls to be charged by a company are subject to the approval of the Commission and may be revised by the Commission from time to time.
...
(2) The company shall file with the Commission tariffs of any telegraph or telephone tolls to be charged, and the tariffs shall be in such form, size and style, and give such information, particulars and details, as the Commission by regulation or in any particular case prescribes.
340. (1) All tolls shall be just and reasonable and shall always, under substantially similar circumstances and conditions 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 company or any particular description of traffic, in any respect whatever, or
(c) subject any particular person or company or any particular description of traffic to any undue or unreasonable prejudice or disadvantage, in any respect whatever,
and where it is shown that the company makes any discrimination or gives any preference or advantage, the burden of proving that the discrimination is not unjust or that the preference is not undue or unreasonable lies on 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, undue or unreasonable preference or advantage, or prejudice or disadvantage, within the meaning of this section, or whether in any case the company has or has not complied with the provisions of this section or sections 335 to 339.
. . .
(4) The Commission may
(a) suspend or postpone any tariff of tolls or any portion thereof that in its opinion may be contrary to sections 335 to 339 or this section; and
(b) disallow any tariff of tolls or any portion thereof that it considers to be contrary to sections 335 to 339 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.
37 Sections 335 and 340 effectively conferred upon the CRTC broad jurisdiction to regulate the tolls and tariffs of telephone companies, particularly with a view towards ensuring that telephone companies did not use their monopoly positions to confer undue preferences upon themselves or third parties. The definition of "toll" applicable with respect to ss. 335 and 340 was as follows:
"telephone toll" or "toll", when used with reference to telephone, means any toll, rate or charge to be charged by any company to the public or to any person, for the use or lease of a telephone system or line or any part thereof, for the transmission of a message by telephone, for installation and use or lease of any instruments, lines or apparatus attached to, or connected or interconnected in any manner whatever with, a telephone system, for any services provided by the company through the facilities of a telephone system or for any service incidental to a telephone business;
In light of the broad definition of "toll" described above, ss. 335 and 340 of the Railway Act clearly provided the CRTC, at the time of the issuance of Decision 92-4, with jurisdiction to regulate the terms of SSAs between cable companies and telephone companies, since such terms effectively amounted to "tolls" under the Railway Act.
38 The only question of jurisdiction that is truly in dispute in the case at hand is whether or not the CRTC possessed the jurisdiction to determine which company, the cable company or the telephone company, would be responsible for the installation of a cable company's facilities on the telephone company's support structure. In my view, the CRTC clearly possessed such jurisdiction. First, I see this jurisdiction as a natural extension of the CRTC's jurisdiction to regulate tolls and tariffs under ss. 335 and 340 of the Railway Act. In my view, the determination of who is responsible for the installation of the cable facilities is a necessary component of the regulation of the prices charged by the telephone companies for cable company access to their support structure. Consequently, I find that the authority to make this determination was included in the CRTC's regulatory jurisdiction under ss. 335 and 340 of the Railway Act.
39 Second, even if one were to adopt a narrow interpretation of tolls and tariffs which excluded the determination of who is responsible for the installation of the cable company's facilities on the telephone company's support structure, in my view, the CRTC would still have had jurisdiction to determine who does the installation work in question by virtue of the portion of s. 340 of the Railway Act which, at the time of Decision 92-4, provided the CRTC with jurisdiction to prevent a telephone company from conferring upon itself or another company an undue or unreasonable preference or advantage "in respect of ...any services or facilities provided by the company as a telegraph or telephone company". Under this provision, to the extent that retention by BC Tel of an exclusive right to install cable company facilities would have constituted an undue preference, the CRTC would have had the jurisdiction to require that the telephone company permit the cable company to use its own contractors to perform the installation work. Thus, the question becomes whether or not the CRTC, in reaching Decision 92-4, found that the retention by BC Tel of an exclusive right to perform the installation work in question constituted an undue preference within the meaning of s. 340. In this respect, the respondents argue that the CRTC made no explicit finding of undue preference. I agree with the respondents that no explicit finding of undue preference was made but conclude that such a finding was nonetheless implicit in Decision 92-4. For example, in Decision 92-4, the CRTC stated:
Under its enabling legislation, the Commission is charged with the duty of ensuring that rates are just and reasonable, that they are not unjustly discriminatory and do not confer an undue preference. In accordance with this mandate, the Commission has consistently held that CATV [Cable TV] licensees are entitled to access B.C. Tel's support structures, subject to certain terms and conditions.
40 In my view, such an implicit finding of undue preference is sufficient. Accordingly, I conclude that the CRTC had the necessary jurisdiction, at the time of the issuance of Decision 92-4, to determine which company, the cable company or the telephone company, was to perform the installation of cable wires on the telephone company's support structure. Furthermore, I find that such a determination, while incidently affecting labour relations, is not, in pith and substance, a matter of labour relations. Instead, it is an important component of the regulation of telephone companies which is within both the jurisdiction and the expertise of the CRTC.
41 The above conclusion flows naturally from Transvision, supra, the initial case which established the CRTC's jurisdiction (then the CTC's jurisdiction) to require a telephone company to allow a cable company to use its support structure. In Transvision, the CTC grounded its jurisdiction to make such an order in then s. 317 of the Railway Act, R.S.C. 1970, c. R-2. Section 317 read as follows, and was substantially the same (although renumbered as s. 326) at the time of the issuance of Decision 92-4:
317. (1) Lines, wires, other conductors, or other structures or appliances for telegraphic or telephonic purposes, or for the conveyance of power or electricity for other purposes, shall not, without leave of the Commission, except as provided in subsection (5), be constructed or maintained
(a) along or across a railway, by any company other than the railway company owning or controlling the railway, or
(b) across or near other such lines, wires, conductors, structures or appliances that are within the legislative authority of the Parliament of Canada.
(2) Upon any application for such leave, the applicant shall submit to the Commission a plan and profile of the part of the railway or other work proposed to be affected, showing the proposed location and the proposed works.
(3) The Commission may grant the application and may order the extent to which, by whom, how, when, on what terms and conditions, and under what supervision, the proposed works may be executed.
(4) Upon such order being made the proposed works may be constructed and maintained subject to and in accordance with such order.
(5) Leave of the Commission under this section is not necessary ...when works have been or are to be constructed or maintained by consent and in accordance with any general orders, regulations, plans or specifications adopted or approved by the Commission for such purposes.
42 In Transvision, the CTC found that s. 317 provided it with jurisdiction to regulate the construction of cable wires alongside ("near") telephone wires ("wires...within the legislative authority of the Parliament of Canada"). Furthermore, it found that since s. 326(3) permitted it to "order the extent to which, by whom, how, when, on what terms and conditions, and under what supervision, the proposed works [in this case, the installation of cable wires] may be executed", it had the jurisdiction to order that the proposed works be executed by attaching the cable wires to telephone company support structures. Given this reasoning, it appears logical to conclude that s. 326(3) would also have provided the CRTC with jurisdiction to regulate the terms of the SSAs between telephone companies and cable companies governing the scope and cost of cable company use of telephone company support structures, including the jurisdiction to determine "by whom" the work is done.
43 In fact, given the broad and important policy mandate of the CRTC it is, in my view, difficult to contemplate permitting the CRTC to mandate cable company access to telephone company infrastructure and not allowing the CRTC to mandate the quality of such access. The two go hand in hand. In this respect, the new Telecommunications Act contains the following provision:
43. ...
(5) Where a person who provides services to the public cannot, on terms acceptable to that person, gain access to the supporting structure of a transmission line constructed on a highway or other public place, that person may apply to the Commission for a right of access to the supporting structure for the purpose of providing such services and the Commission may grant the permission subject to any conditions that the Commission determines.
44 For all the reasons outlined above, it is my view that in issuing Decision 92-4, the CRTC was acting within its area of jurisdiction and expertise. The CRTC is therefore entitled to curial deference by a court reviewing Decision 92-4 through a statutory right of appeal. Accordingly, since the CRTC decision was reasonable, and this appears not to be contested by any of the parties, I conclude that, absent the decision of the arbitration board, it would have been inappropriate for the Federal Court of Appeal, applying the normal standard of review, to have interfered with the decision of the CRTC.
2.Was the Federal Court of Appeal justified in interfering with the decision of the CRTC in light of the fact that it allegedly conflicts with the decision of the arbitration board?
45 It is argued that even if the Federal Court of Appeal would not have normally been justified in interfering with the decision of the CRTC, such interference becomes justified in light of the conflict between the decisions of the CRTC and the arbitration board.
46 In response to this argument, I begin by noting that there are various different kinds and degrees of conflicts that can exist between decisions of administrative tribunals. In Domtar, supra, this Court considered one such type of conflict and determined that it did not justify an abandonment of judicial deference. Domtar concerned the judicial review of an administrative tribunal decision on the ground that it was jurisprudentially inconsistent with that of another tribunal. A motion for evocation was filed with respect to a decision of the Commission d'appel en matière de lésions professionnelles ("CALP"). The decision of the CALP centred around the interpretation of s. 60 of Quebec's Act respecting Industrial Accidents and Occupational Diseases, R.S.Q., c. A-3.001 ("AIAOD"). The CALP was protected by a full privative clause. Since it was clear that the CALP had acted within its jurisdiction and that its decision was not patently unreasonable, the motion would normally have failed. However, the applicant Domtar Inc. argued that the decision of CALP was inconsistent with a decision of the Quebec Labour Court, also acting within jurisdiction, interpreting the same s. 60. Consequently, the applicant argued that the courts should interfere to settle the inconsistency and render the law certain. Writing on behalf of a unanimous court, I questioned whether there actually was a jurisprudential conflict between the decisions of the CALP and the Quebec Labour Court. However, I then went on to find that even had such a conflict existed, it would not have been sufficient to justify an abandonment of generally applicable principles of curial deference.
47 It is important to underline, however, that Domtar dealt with a relatively minor type of conflict between administrative tribunals concerning the interpretation of a section of an Act. While the CALP and the Quebec Labour Court decisions at issue in Domtar employed inconsistent interpretations of s. 60 AIAOD, they did not directly conflict in result, in that it was possible to fully implement both decisions. Thus, this Court decided not to interfere with the decisions of the two tribunals. However, the situation is considerably different where the conflict between administrative tribunal decisions is more serious. The most serious type of conflict arises where administrative tribunals reach operationally irreconcilable decisions (hereinafter referred to as an "operational conflict"). This will occur where compliance with the decision of one tribunal necessitates violation of the other tribunal's decision. Such a result places a person in an intolerable situation. He or she has no choice but to ignore one of the operationally conflicting orders. In such circumstances, it is, in my view, the responsibility of the courts, exercising their inherent jurisdiction, to determine which of the two conflicting decisions should take precedence.
48 Of course, the first step in determining which of the conflicting decisions should take precedence is to determine whether either decision, absent the other, could be overturned applying the standard of review generally applicable to that decision. In the case at hand, I have already found that, absent the decision of the arbitration board, the decision of the CRTC would not normally be interfered with by a reviewing court. Similarly, the labour arbitration board's decision in the case at hand would also not normally be interfered with by a reviewing court.
49 Once it is concluded that both conflicting decisions would, absent the other, normally withstand an application for judicial review or an appeal, the question which remains is whether the courts should be willing to interfere in order to resolve the conflict. I believe that where there is a true operational conflict, the courts must be willing to take some such action.
50 In this respect, a parallel can be drawn with the doctrine of paramountcy in constitutional law. As early as 1883, the Privy Council acknowledged, in Hodge v. The Queen (1883), 9 App. Cas. 117, that it will sometimes be possible for both the provincial and federal governments to legislate with respect to the same subject matter, albeit for different purposes. In order to address the possibility of conflicting legislation, the doctrine of paramountcy was developed. Accordingly, where both the provincial and federal governments pass valid legislation that conflict with one another, the federal legislation takes precedence and the provincial legislation is rendered inoperative to the extent that it is inconsistent with the federal legislation.
51 In my view, the constitutional doctrine of paramountcy can be adapted to the administrative law context and applied in situations where administrative tribunals reach operationally conflicting decisions. Thus, just as the courts can declare inoperative provincial legislation, validly enacted and within provincial jurisdiction, to the extent that such legislation conflicts with equally valid federal legislation, the courts should be able to declare inoperative decisions or orders, validly reached, of administrative tribunals to the extent that they are in operational conflict with decisions or orders, also validly reached, of other administrative tribunals. Such judicial action is, in my view, not only necessary, but consistent with legislative intent.
52 There is a fundamental interpretative principle of rationality that is to be applied in interpreting legislation. In Alberta Power Ltd. v. Alberta (Public Utilities Board) (1990), 72 Alta. L.R. (2d) 129, at p. 144, the Alberta Court of Appeal referred to this basic principle as the "presumption of legislative coherence":
There is no doubt that there exists a presumption of legislative coherence; an interpretation which fosters inconsistency or repugnancy between provisions in different statutes is to be avoided: Driedger, Construction of Statutes, 2nd ed. (1983), at p. 66; Côté, The Interpretation of Legislation in Canada (1984), at pp. 269, 274. It is not enough, however, that the two statutes deal "somewhat differently" with the same subject matter; inconsistency requires that the provisions cannot stand together: Toronto Ry. v. Paget (1909), [42] S.C.R. 488 at 499, per Anglin J.; Ottawa v. Eastview, [[1941] S.C.R. 448 at 462].
Thus, where a legislature enacts two statutes whose provisions appear to be in operational conflict (i.e., where compliance with one necessitates violation of the other), the courts will attempt to interpret the statutes so as to eliminate the operational conflict. Similarly, it is my view that where the legislature creates two administrative tribunals which reach decisions that are in operational conflict, the "presumption of legislative coherence" requires the courts to abandon policies of curial deference and attempt to reconcile the conflict.
53 This said, it is important to note that such an abandonment of curial deference is only appropriate in those few cases where there is true operational irreconcilability of administrative decisions. Conflicts should not be sought out or artificially created by the courts as a justification for judicial interference. Instead, judicial interference should only be contemplated where it is impossible to comply with two administrative decisions in that they are in direct operational conflict.
54 In such limited circumstances, courts have the necessary jurisdiction to review the conflicting administrative decisions and such jurisdiction is not ousted by privative clauses. Furthermore, courts should exercise this jurisdiction and, in the rare cases where two valid, yet operationally conflicting, administrative decisions are issued, determine which of the two decisions will take precedence.
55 This then, brings me to the more complicated issue of how the courts are to determine which of the two conflicting decisions should take precedence. In this respect, the courts should employ a "pragmatic and functional" approach similar to the one used in determining the initial jurisdiction of each of the administrative tribunals (Bibeault, supra). Effectively, the courts must determine, in light of the policy scheme surrounding each of the administrative tribunals and the nature of each of the conflicting decisions, which of the decisions the legislature would have intended to take precedence. This is an extremely difficult, and some would argue, a nearly impossible determination. However, in cases of true operational conflict, it must be made. If the courts do not make the determination, then individuals, faced with operationally conflicting decisions by administrative tribunals, will be forced to make the determination themselves. In my view, it is better that this determination, despite its difficulty, be made by the courts, acting in the public interest, as opposed to by individuals, acting in their own self-interest. In making the determination of which decision takes precedence, the courts should, in my opinion, consider several factors.
56 First, the courts should consider the legislative purpose behind the establishment of each administrative tribunal. The more important a tribunal's purpose, the more likely the government would have intended that tribunal's decision to take precedence over that of another tribunal. For example, human rights legislation is considered quasi-constitutional. Consequently, all other factors being equal, decisions of human rights tribunals would generally take precedence over conflicting decisions based on other, less fundamental, administrative schemes.
57 A second relevant factor is the extent to which an administrative tribunal's decision is central to the purpose of that tribunal. The more central a decision is to the purpose of the administrative tribunal that made it, the more likely it should take precedence over a decision by another administrative tribunal that is less central to that second tribunal's purpose.
58 A third relevant factor is the degree to which an administrative tribunal, in reaching a decision, is fulfilling a policy-making or policy implementation role. The greater the connection between a decision and a tribunal's policy-making or policy implementation role, the more likely that decision should take precedence over a decision of another tribunal that has a less significant policy-making or policy implementation component.
59 Of course, the above is not meant to be a complete articulation of all relevant factors. Such a list can only be developed over time, as the courts consider new fact situations. Instead, it is meant to outline some of the factors that may be relevant in determining which administrative tribunal's decision should take precedence. In any particular case, some or all of the aforementioned factors, as well as additional factors, may be relevant. Ultimately, the question must be resolved by determining which tribunal's decision the legislature would have intended to take precedence.
3. Application to the Case at Hand
60 Assuming, for the moment, that there is a true operational conflict between the decision of the CRTC and that of the arbitration board, it is necessary to apply the aforementioned test to the case at hand in order to determine which decision is to take precedence. As I mentioned above, the thrust of this test is to determine which of the two conflicting decisions the legislature would have intended to take precedence. In my view, the answer to this question is quite clear. The CRTC, in requiring BC Tel to let cable companies install their own facilities on BC Tel's support structure, was implementing a policy decision. It decided that, in order to fulfil Parliament's intention of regulating monopoly service providers in the public interest, such a requirement had to be imposed on BC Tel. In doing so, the CRTC restricted the activity BC Tel was authorized to engage in. The labour arbitration board, on the other hand, was merely interpreting a private contract relating to the internal arrangements made by BC Tel to carry out the activities assigned to it. While there is no doubt that the labour arbitration board, in reaching its decision, was serving an important purpose, this does not change the fact that its task was to interpret an essentially private contract. The parties to this contract could not extend, whether intentionally or innocently, the scope of BC Tel's authorized activities as fixed by the CRTC to affect third parties. The latter's decision therefore governs. Viewed otherwise, the CRTC's decision was also an expression of that tribunal's policy-making function, the decision of the labour arbitration board was not. In my view, where two equally valid decisions of administrative tribunals are in operational conflict, precedence must be given to the decision which represents an expression of one tribunal's policy-making function in circumstances where the other decision is a purely adjudicative decision concerning the interpretation of a private contract. The legislature, in establishing the two tribunals, could not have intended that the opposite be true for this would effectively enable private parties to contract out of public policy obligations. A private party such as BC Tel should not be permitted, whether intentionally or innocently, to bypass, by means of a contract or a collective agreement, regulatory requirements imposed on it in the public interest.
61 Accordingly, had I found that the decisions of the CRTC and of the labour arbitration board were in operational conflict, I would have concluded that the decision of the CRTC should take precedence over that of the arbitration board to the extent of the operational conflict. However, in the case at hand, I do not actually believe that the decisions of the CRTC and of the arbitration board are in operational conflict.
62 As I noted previously, for two decisions to be in operational conflict, it must be impossible to comply with both decisions. In other words, compliance with one decision must necessitate violation of the other. In the case at hand, this test is not satisfied. Specifically, compliance by BC Tel with the CRTC order will not result in a violation of the labour arbitration decision, per se. Instead, it will result in a violation of the collective agreement. The labour arbitration decision is merely an interpretation of the collective agreement. It does not require BC Tel to act in a particular way; it simply describes the manner in which BC Tel itself promised to act. Thus, while BC Tel is in a difficult position, it is in this position as a result of its collective agreement, not as a result of the labour arbitration decision. Consequently, I do not believe that there is an actual operational conflict, justifying judicial intervention, between the decision of the labour arbitration board and the CRTC decision.
63 In light of the above, in my view, it is appropriate to let both the labour arbitration board's decision and that of the CRTC stand. This Court should not interfere with either decision on the grounds that, while there is a conflict, there is not an operational conflict. It is, in my view, only in the clearest of operational conflicts that judicial deference should be set aside and judicial interference tolerated. Consequently, I would allow the appeal and restore the CRTC decision.
64 Having said this, if a labour arbitration board were to take further steps and attempt to enforce the collective agreement, an actual operational conflict could then arise. In such circumstances, the courts would be required to determine which decision should take precedence; and, for the reasons outlined previously, I would then conclude that the CRTC decision, being an expression of the CRTC's policy-making role, should take precedence over the adjudicative decision of the arbitration board to the extent of the operational inconsistency.
V. Disposition
65 For the reasons outlined above, I would allow the appeal, set aside the judgment of the Federal Court of Appeal, and restore Decision 92-4, with costs throughout.
The following are the reasons delivered by
66 Sopinka J. -- Subject to the disposition which I would make in the companion case of Telecommunications Workers Union v. Canada (Radio-television and Telecommunications Commission), [1995] 2 S.C.R. 781, I agree with Justice L'Heureux-Dubé.
The following are the reasons delivered by
67 Cory J. -- I have had the opportunity to read the reasons of my colleagues, L'Heureux‑Dubé and McLachlin JJ. I agree with much of the excellent reasons and with the result reached by L'Heureux‑Dubé J. I concur as well with the reasons of McLachlin J.
68 While I agree with much of her analysis, I cannot, with the greatest respect, accept the comments made by L'Heureux‑Dubé J. regarding the nature and significance of arbitration decisions in labour relations matters or those pertaining to collective agreement clauses which reserve an exclusive right to work for bargaining units. Nor am I able to accept the characterization made of the nature of a collective agreement. At the outset, it may be helpful to set out the references to these issues which appear in the reasons.
69 In paragraph 60 of her reasons, this appears:
The labour arbitration board, on the other hand, was merely interpreting a private contract relating to the internal arrangements made by BC Tel to carry out the activities assigned to it. While there is no doubt that the labour arbitration board, in reaching its decision, was serving an important purpose, this does not change the fact that its task was to interpret an essentially private contract. The parties to this contract could not extend, whether intentionally or innocently, the scope of BC Tel's authorized activities as fixed by the CRTC to affect third parties.
70 Later in the same paragraph:
A private party such as BC Tel should not be permitted, whether intentionally or innocently, to bypass by means of a contract or a collective agreement, regulatory requirements imposed on it in the public interest.
71 Finally, in paragraph 62 this appears:
Specifically, compliance by BC Tel with the CRTC order will not result in a violation of the labour arbitration decision, per se. Instead, it will result in a violation of the collective agreement. The labour arbitration decision is merely an interpretation of the collective agreement. It does not require BC Tel to act in a particular way; it simply describes the manner in which BC Tel itself promised to act. Thus, while BC Tel is in a difficult position, it is in this position as a result of its collective agreement, not as a result of the labour arbitration decision. Consequently, I do not believe that there is an actual operational conflict, justifying judicial intervention, between the decision of the labour arbitration board and the CRTC decision. [Emphasis in original.]
72 A collective agreement is much more than a private arrangement. It provides the foundation for labour relations. It exists so that peace in labour relations can be achieved and maintained. This goal which is so important for our society is the aim of all labour legislation.
73 The exclusive right‑to‑work clause, in turn, provides the basic foundation for the collective agreement itself. It is of such fundamental importance to both parties but, particularly to labour, that I would be surprised if this type of clause is not included in every collective bargaining agreement. In fact, the exclusive right to bargaining unit work is so essential to labour relations that it has been described as a proprietary right. It must be remembered that clauses which reserve an exclusive right to do certain work to a bargaining unit provide the foundation, not only to a particular collective agreement, but, more importantly, to the entire system of labour relations. Without such a clause, bargaining unit work could be contracted out to those who are not covered by the collective agreement, thereby defeating the entire legislative scheme of collective bargaining. In my view, the importance of these clauses cannot be over‑emphasized. It follows that I am opposed to any characterization of the collective agreement or a particular clause of it which suggests that they represent an attempt by BC Tel or the TWU either to contract out of the public obligations imposed by the various telecommunications statutes or to extend improperly the scope of BC Tel's authority.
74 Moreover, proper recognition must be given to the importance of labour arbitration. The labour arbitrator is not merely a creature created by private contract. Rather, in the field of labour relations it is recognized that labour arbitrators are the instruments by which the general legislative policy is implemented whereby labour relations disputes may be resolved in a speedy manner thus reducing the effects of disruptive labour strife in our society. This is the goal of all labour legislation. Labour arbitrators are an integral element in labour legislation in both the federal and provincial spheres. Mandatory labour arbitration is the essential quid pro quo which balances the restrictions these statutes place on the parties' rights to strike or lockout. While private arbitration, arranged solely between private parties, does exist in a number of circumstances outside of labour law, arbitration provided by labour legislation has a role of significant public importance.
75 The reasons of my colleague suggest that the private parties, BC Tel and TWU, have themselves created the operational conflict with the CRTC decision and that, accordingly, the decision which relates to their collective agreement should be given little weight. However, in my view the operational conflict does not arise because of the collective agreement. Rather, the conflict arises because of the manner in which the labour arbitrator interpreted the collective agreement. It is the interpretation which gives the words their practical effect. The operational conflict is created because of the labour arbitrator's decision. This decision is not "merely an interpretation of the collective agreement" ‑‑ it is an interpretation which mandates particular action in the same way as a court's interpretation of a statute mandates that particular consequences follow. Labour arbitrators have a special expertise and experience in interpreting collective agreements and in resolving labour disputes. Their role is important and the significance of their decisions cannot be over‑emphasized. When undertaking the judicial balancing required in this case, it must be remembered that the operational conflict arises as a result of the conflicting decisions of two administrative tribunals.
76 In order to resolve the operational conflict, it is necessary to balance the overlapping jurisdiction, the aims and the purposes of two administrative tribunals. In the circumstances of this case, I agree with the reasons of L'Heureux‑Dubé J. which provide that the decision of the CRTC must, in policy decisions such as that presented in this case, take precedence. However, in my view, this ruling does not invalidate the exclusive right to work clause contained in the BC Tel‑TWU collective agreement. Rather, the exclusive right to work clause will continue to be binding on the parties except in those circumstances where it conflicts with the CRTC decision.
77 I would, accordingly, allow the appeal.
The following is the judgment delivered by
78 McLachlin J. -- Although in substantial agreement with the reasons of Justice L'Heureux-Dubé, I differ from her on one point. She suggests that a court may intervene to determine priorities between competing orders of different administrative tribunals, only where the result is that the claimant would be in the position of breaching a mandatory order. I would define operational conflict more broadly. I see operational conflict existing whenever two decisions create a conflict which makes it impossible for a claimant to fulfil simultaneously its legal obligations, as defined by the respective boards. Claimants should be able to turn to the courts for clarification whenever conflicting decisions impose different legal obligations. The fact that those obligations find their source in the collective agreement does not negate their enforceability. Contracts impose legal obligations which are enforceable by various means. Only exceptionally do these include mandatory orders. It is artificial, in my view, to predicate the right to a ruling on which legal obligation prevails on the distinction between a mandatory order and an order which provides a different remedy.
79 This is not to expand the scope of judicial intervention unduly; rather, it is to respond to a real need. We must not forget that the parties involved in problems of this sort are often providing services of considerable importance to the public. It is the task of the legal system to provide them with clear guidance as to their legal obligations so that they can provide the services that they are required to provide in an efficacious and legal manner. When two different boards have given conflicting definitions of a body's legal obligations, it is important that the body be afforded means of determining which obligation prevails and which it must obey. The boards themselves cannot determine this. The only body which can do it is the court. Access to the court should not be precluded because the order happens to designate a remedy other than a mandatory order.
80 The orders in this case impose inconsistent legal obligations on BC Tel. The CRTC has ruled that BC Tel has a legal obligation to permit Shaw Cable Systems to work on its lines. The labour arbitration board, on the other hand, has ruled that BC Tel has a legal obligation to refuse to permit Shaw Cable Systems to work on its lines. BC Tel cannot fulfil both obligations. It follows that BC Tel should be able to ask the courts which has priority. I agree with L'Heureux-Dubé J. that the CRTC's decision, being an expression of the broad policy-making role accorded to it by Parliament, should take precedence over the decision of the labour arbitration board to the extent of the inconsistency.
81 I would allow the appeal with costs throughout, set aside the judgment of the Federal Court of Appeal and restore the decision of the CRTC.
The following are the reasons delivered by
I. Iacobucci J. -- I agree with the position of the Chief Justice, namely, I am in substantial agreement with the reasons of L'Heureux-Dubé J. and agree with her disposition of the appeal; however, I also agree with the views expressed by Cory J. and McLachlin J.
Appeal allowed with costs.
Solicitors for the appellant Shaw Cable Systems (B.C.) Ltd.: McCarthy Tétrault, Toronto.
Solicitor for the appellant the CRTC: The CRTC Legal Directorate, Hull.
Solicitors for the respondent British Columbia Telephone Co.: Farris, Vaughan, Wills & Murphy, Vancouver.
Solicitors for the respondent Telecommunications Workers Union: Shortt, Moore & Arsenault, Vancouver.
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