Barrie Public Utilities v. Canadian Cable Television Association, 2001 FCA 236

Date: 20010713

Docket: A-117-00

          Neutral citation: 2001 FCA 236

CORAM:             DESJARDINS J.A.

ROTHSTEIN J.A.

SHARLOW J.A.

BETWEEN:

BARRIE PUBLIC UTILITIES, ESSEX PUBLIC UTILITIES COMMISSION,

GUELPH HYDRO, INNISIL HYDRO, LEAMINGTON PUBLIC UTILITIES COMMISSION, MARKHAM HYDRO ELECTRIC COMMISSION, MISSISSAUGA HYDRO ELECTRIC COMMISSION, NIAGARA-ON-THE-LAKE HYDRO

ELECTRIC COMMISSION, THE HYDRO ELECTRIC COMMISSION OF NORTH BAY, OAKVILLE HYDRO, ORILLIA WATER, LIGHT AND POWER, PERTH PUBLIC UTILITIES COMMISSION, RICHMOND HILL HYDRO ELECTRIC COMMISSION, SHELBURNE HYDRO, STONEY CREEK HYDRO-ELECTRIC COMMISSION, STRATFORD PUBLIC UTILITY COMMISSION, TORONTO

HYDRO-ELECTRIC COMMISSION (FORMERLY HYDRO ELECTRIC COMMISSION OF THE CITY OF NORTH YORK AND THE PUBLIC UTILITIES COMMISSION OF THE CITY OF SCARBOROUGH, WATERLOO NORTH HYDRO and KITCHENER- WILMOT HYDRO

      Appellants

            - and -

CANADIAN CABLE TELEVISION ASSOCIATION

    Respondent

            - and -

CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION

SASKATCHEWAN POWER CORPORATION and

ATTORNEY GENERAL OF NEW BRUNSWICK

     Intervenors

Heard at Toronto, Ontario, on Wednesday and Thursday, June 13 and 14, 2001.

Delivered at Ottawa, Ontario, on Friday, July 13, 2001.

REASONS FOR BY: ROTHSTEIN J.A.

CONCURRED IN BY: DESJARDINS J.A.

    SHARLOW J.A.

Date: 20010713

Docket: A-117-00

          Neutral citation: 2001 FCA 236

CORAM:             DESJARDINS J.A.

ROTHSTEIN J.A.

SHARLOW J.A.

BETWEEN:

BARRIE PUBLIC UTILITIES, ESSEX PUBLIC UTILITIES COMMISSION,

GUELPH HYDRO, INNISIL HYDRO, LEAMINGTON PUBLIC UTILITIES COMMISSION, MARKHAM HYDRO ELECTRIC COMMISSION, MISSISSAUGA HYDRO ELECTRIC COMMISSION, NIAGARA-ON-THE-LAKE HYDRO

ELECTRIC COMMISSION, THE HYDRO ELECTRIC COMMISSION OF NORTH BAY, OAKVILLE HYDRO, ORILLIA WATER, LIGHT AND POWER, PERTH PUBLIC UTILITIES COMMISSION, RICHMOND HILL HYDRO ELECTRIC COMMISSION, SHELBURNE HYDRO, STONEY CREEK HYDRO-ELECTRIC COMMISSION, STRATFORD PUBLIC UTILITY COMMISSION, TORONTO

HYDRO-ELECTRIC COMMISSION (FORMERLY HYDRO ELECTRIC COMMISSION OF THE CITY OF NORTH YORK AND THE PUBLIC UTILITIES COMMISSION OF THE CITY OF SCARBOROUGH, WATERLOO NORTH HYDRO and KITCHENER- WILMOT HYDRO

      Appellants

            - and -

CANADIAN CABLE TELEVISION ASSOCIATION

    Respondent

            - and -

CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION

SASKATCHEWAN POWER CORPORATION and

ATTORNEY GENERAL OF NEW BRUNSWICK

     Intervenors

    REASONS FOR JUDGMENT

ROTHSTEIN J.A.

INTRODUCTION

The appellants are provincially regulated electric power utilities in Ontario. They are appealing Telecom Decision 99-13, a September 28, 1999 order of the Canadian Radio-television and Telecommunications Commission (CRTC) made under subsection 43(5) of the Telecommunications Act, S.C. 1993, c. 38. The order grants television cable companies access to poles owned by the appellants at a rate of $15.89 per pole per year. Leave to appeal was granted by this Court under subsection 64(1) of the Telecommunications Act.

ISSUES

The issues raised by the appellants on appeal are:

1.             Does subsection 43(5) of the Telecommunications Act confer on the CRTC the authority to grant cable television companies access to the poles owned by provincially regulated power utilities?

2.             If so, is subsection 43(5) constitutionally valid as being within the legislative jurisdiction of the Parliament of Canada?

3.             If so, was there evidence before the CRTC to support the rate of $15.89?

As I have concluded that subsection 43(5) does not authorize the CRTC to make Telecom Decision CRTC 99-13, it will not be necessary to address the second and third issues.

FACTS

At all relevant times, the appellants were power utilities that distributed electricity in certain Ontario municipalities. For the purpose of their business, the appellants erect and maintain support structures, mainly poles, which provide support for above ground electric wires. There is no dispute that the appellants are subject to the legislative jurisdiction of the Province of Ontario.

The members of the Canadian Cable Television Association provide cable television service to more than 7 million households in Canada. Before the CRTC, the Association represented Cablenet (a division of Cogeco Cable Inc.), Pierre Juneau (as trustee for 3305911 Canada Inc. in respect of certain cable distribution undertakings that were to be sold by Rogers Cable Systems Ltd.), Rogers Cable Systems Limited and its subsidiaries, and Shaw Cable Systems Ltd. and its subsidiaries.

For many years, cable companies and power utilities entered into agreements which provided the cable companies with access to the utilities' poles for the purpose of supporting cable television transmission lines. Such access allowed cable companies to provide their services without installing their own support structures.

The most recent agreements expired on or before December 31, 1996. Negotiations did not result in new agreements and as a result, the Canadian Cable Television Association applied to the CRTC for an order for access to the appellants' poles at rates to be fixed by the CRTC.

The application resulted in Telecom Decision CRTC-99-13, granting the cable companies access to the appellants' poles at the rate of $15.89 per year. That decision is the subject of this appeal.

SECTION 43 OF THE TELECOMMUNICATIONS ACT

Section 43 of the Telecommunications Act provides:

THE CRTC DECISION

In making Telecom Decision CRTC 99-13, the CRTC relied on subsection 43(5) of the Telecommunications Act. In interpreting subsection 43(5), the CRTC considered that terms and phrases must be interpreted based on their ordinary meanings as well as the context of the Act. The CRTC found that "transmission line", as defined in ordinary dictionaries, would include lines used to distribute electricity. The term was not narrowed, as it was in other subsections of section 43, as being a transmission line of a Canadian carrier (by definition a telecommunications carrier such as a telephone company) or distribution undertaking (in this case, the undertaking of a cable company).

In the opinion of the CRTC, the legislative history leading to the enactment of subsection 43(5) supports the view that the subsection should be construed broadly to include the support structures of all utilities including the appellants and other power utilities. According to the CRTC, this interpretation of subsection 43(5) is further supported by the telecommunications policy objectives in section 7 of the Telecommunications Act and the broadcasting policy objectives in section 3 of the Broadcasting Act, S.C. 1991, c. 11 and the broader public interest, such as detrimental environmental and aesthetic consequences of avoidable duplicate infrastructures.

ANALYSIS

Standard of Review

A determination of the appropriate standard of review in respect of a decision of an administrative tribunal calls for the application of the pragmatic and functional approach first adopted by the Supreme Court of Canada in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 and as further developed in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557 and Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748. The recent jurisprudence of the Supreme Court was summarized by Bastarache J. in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. The focus of the inquiry is on the particular provision being interpreted by the tribunal and the central question is: is the question that the provision raises one that was intended by the legislators to be left to the exclusive decision of the administrative tribunal? (See 2001 SCC 37">Committee for Equal Treatment of Asbestos Minority Shareholders v. Ontario (Securities Commission), 2001 SCC 37, at paragraph 47 and 2001 SCC 36">Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, at paragraph 24.)

Based on these authorities, it is necessary to consider the appropriate standard of review in relation to the CRTC's interpretation of subsection 43(5), which, as I have said, is the only issue that requires consideration in this appeal. Whether the term "transmission line" in subsection 43(5) refers only to transmission lines of Canadian carriers and distribution undertakings or to all transmission lines, irrespective of ownership, is one of statutory interpretation and is therefore a question of law. It involves the scope of the CRTC's regulatory authority. If the term "transmission line" is found to include all transmission lines, irrespective of ownership, the regulatory authority of the CRTC to make an access order will, according to the statute, not be limited to ordering access to the support structures of Canadian carriers and distribution undertakings, but will extend to transmission lines of power utilities and others not otherwise subject to the jurisdiction of the CRTC. The determination of this question will have precedential importance; its impact will not be limited to the appellants only.    In light of this consideration, I do not think that Parliament intended to leave the determination of such a question to the exclusive decision of the CRTC.

However, since no individual factor in the pragmatic and functional analysis is alone dispositive of the question of standard of review (see Mattel, supra, at paragraph 24), it is necessary to consider others that are relevant. While findings of fact by the CRTC are subject to a privative clause (subsection 52(1) of the Telecommunications Act), there is a statutory right of appeal, upon leave being granted, on questions of law or jurisdiction (subsection 64(1) of the Telecommunications Act). However, even where there is a statutory right of appeal, deference will be shown where the legal question at issue is one squarely within the expertise of the tribunal (see Mattel, supra, at paragraph 27).

I accept that the CRTC has expertise with respect to telecommunications and broadcasting and that with respect to technical matters within that expertise, the CRTC may be better suited than the Court to interpret technical laws. However, there is no indication that the expertise of the CRTC is involved in the determination of the question at issue in this case.

It is not necessary to go further. Having regard to the question of statutory interpretation under consideration, the statutory right of appeal on a question of law with leave, and the nature of the question which is not one that involves the expertise of the CRTC, the appropriate standard of review is one of correctness.

The Approach to Interpreting Subsection 43(5)

The statutory interpretation question arises because subsection 43(5) is not explicit as to whether the term "transmission line" refers only to the lines of Canadian carriers or distribution undertakings or, as the CRTC found, includes the transmission lines of the appellants.

To answer the question, the analysis must focus on the words of subsection 43(5) read in their statutory context. The objective of the analysis is to arrive at an interpretation of the term "transmission line" that is justified in terms of plausibility, efficacy and acceptability (see Ruth Sullivan, ed., Driedger on the Construction of Statutes, 3^rd ed. (Toronto and Vancouver: Butterworths, 1994) at 131).

The Literal Meaning of the Words

There was considerable debate before the CRTC and in this appeal as to the meaning of the term "transmission line" in subsection 43(5). According to the appellants, power utilities recognize a distinction between transmission lines, which are high voltage lines carrying electricity over long distances with minor losses, and distribution lines, which carry electricity relatively inefficiently over short distances. The support structures in issue in this case are the poles supporting what the power utilities refer to as "distribution lines", not "transmission lines". The appellants argue, on that basis, that subsection 43(5) cannot be read as applying to their distribution lines. The CRTC, having regard to dictionary definitions, found that the ordinary meaning of the term "transmission line" includes transmission lines used to distribute electrical power.

I agree that the term "transmission line", read literally and in isolation, is capable of bearing either the general meaning adopted by the CRTC or the technical meaning propounded by the appellants. Generally, where words may bear either a technical or a non-technical meaning, the Court will presume that the non-technical meaning was intended unless the context requires otherwise (Driedger, supra, at page 17). For the reasons explained below, my analysis of the statutory context leads me to conclude that Parliament, in using the words "transmission lines" in subsection 43(5), did not intend to refer to any lines that carry electricity, including the lines that the power utilities in this case would refer to as "distribution lines".

The Term "Transmission Line" in the Context of Subsection 43(5)

Subsection 43(5) authorizes the CRTC to grant access, on conditions that it determines, to the support structures of transmission lines constructed on a highway or other public place to a person who provides services to the public and who cannot gain access to the support structures on terms acceptable to that person. Neither the term "person who provides services to the public" nor the term "transmission line" is qualified. Read literally, subsection 43(5) might be interpreted as conferring on the CRTC, the jurisdiction to grant to all persons who provide services to the public, access to support structures of all transmission lines, whether they are part of an undertaking that falls under federal jurisdiction or provincial jurisdiction. Such an interpretation would imply that Parliament was purporting to confer jurisdiction on the CRTC, not only outside Parliament's legislative jurisdiction under the Constitution Act but also, well beyond the mandate of the CRTC to regulate telecommunications and broadcasting under the Canadian Radio-television and Telecommunications Commission Act, R.S.C. 1985, c. C-22. That obviously could not have been the intention of Parliament.

Recognizing this problem, the CRTC interpreted subsection 43(5) so that it would apply only to circumstances within federal and CRTC jurisdiction. At paragraph 92 of its reasons, the CRTC found that subsection 43(5) "applies when the applicant or the respondent or both are federal undertakings contemplated by either the Telecommunications Act or the Broadcasting Act". The "federal undertakings" being referred to are Canadian carriers (such as telephone companies) and distribution undertakings (such as cable television companies). Therefore, according to the CRTC, subsection 43(5) applies when a telephone company or a television cable company seeks access to poles erected by a telephone company or cable company. It would also apply when a telephone company or a cable company seeks access to poles erected by a provincially regulated power utility, or when a power utility seeks access to poles erected by a telephone company or a cable company. It would not apply when a power utility seeks access to poles erected by another power utility, or in any other case where neither the applicant nor the respondent is a telephone company or a cable company.

With respect, I think the CRTC's construction presents some difficulties. I do not say that words in a statute cannot have different meanings depending upon the context in which they are used. However, it seems unlikely that Parliament intended that a term in a single subsection should have different meanings depending upon different factual circumstances.

Because it is obvious that subsection 43(5) does not confer on the CRTC the authority to grant access to any poles supporting transmission lines whenever any person applies for access, subsection 43(5) must be read down. The CRTC's approach (at paragraph 92) was to read down either the term "person who provides services to the public" or the term "transmission line" in subsection 43(5), on a case by case basis, depending upon which is necessary to ensure compliance with its constitutional and jurisdictional limits.

I accept that reading down legislation to comply with jurisdictional limits is an acceptable interpretive strategy. However, the CRTC has not read down the words consistently for all purposes. Under the CRTC's approach, reading down the scope of one of the terms is dependent on the scope attributed to the other term. Thus, if a transmission line is outside the CRTC's jurisdiction, the term "person who provides services to the public" is read down to mean a distribution undertaking or Canadian carrier. However, if the transmission line in question is one of a distribution undertaking or Canadian carrier, the term "person who provides services to the public" is not necessarily read down but may apply to any person without restriction. I find it difficult to think that this flexible reading down, depending upon the facts of individual cases, is what Parliament intended in enacting subsection 43(5). The complexity of such an interpretation leads me to conclude that had that been Parliament's intention, it would have been expressed more explicitly.

There is another reason for this conclusion. The word "person" is, by its nature, a term of wide application. It is limited only in that the person contemplated in subsection 43(5) is one who provides services to the public. As the term "person who provides services to the public" is used in subsection 43(5), that person is not the person that is to be the subject of the regulatory jurisdiction of the CRTC. Rather, "person" must refer to the applicant for access and not the person against whom the access order is made. In this context, there is no reason to apply jurisdictional or constitutional constraints to the term "person who provides services to the public". I think it is reasonable to conclude that the term "person who provides services to the public" was intended by Parliament to be unrestricted. Therefore the term "transmission line" must be a transmission line constructed by undertakings subject to CRTC jurisdiction, namely, Canadian carriers or distribution undertakings and cannot include the transmission lines of the appellants.

Context of Section 43

I think the conclusion I have reached construing the term "transmission line" in the context of subsection 43(5) is supported by the context of section 43 as a whole.

The term "distribution undertaking" is used in section 43. It is not defined in the Telecommunications Act itself, but subsection 43(1) provides that in sections 43 and 44, the term has the same meaning as in subsection 2(1) of the Broadcasting Act. Distribution undertaking is defined in subsection 2(1) of the Broadcasting Act as follows:

The cable companies represented by the respondent are distribution undertakings.

Subject to subsections 43(3) and (4), subsection 43(2) permits a Canadian carrier, or a distribution undertaking, to enter and break up any highway or other public place for the purpose of constructing, maintaining or operating its transmission lines.

Subsection 43(3) provides that no Canadian carrier or distribution undertaking shall construct a transmission line on, over, under or along a highway or other public place without the consent of the municipality or other public authority having jurisdiction over the highway or other public place.

In subsection 43(4), Parliament provides for those circumstances in which the Canadian carrier or distribution undertaking cannot, on terms acceptable to it, obtain the consent of the municipality or other public authority to construct its transmission line. In such a case, the Canadian carrier or distribution undertaking may apply to the CRTC for permission to construct the transmission line. Subsection 43(4) confers on the CRTC the authority to grant permission to the Canadian carrier or distribution undertaking to construct the transmission line on a highway or other public place and to determine the conditions under which the construction may take place. In subsections 43(2), (3), and (4), the transmission lines at issue are clearly those to be constructed, maintained or operated by a Canadian carrier or distribution undertaking on a highway or other public place.

Subsection 43(5) is not concerned with granting Canadian carriers or distribution undertakings permission to construct transmission lines. Rather, it is concerned with access by persons who provide services to the public to support structures of transmission lines already constructed on a highway or other public place. However, the word formula "transmission line constructed on a highway or other public place" in subsection 43(5) bears a remarkable similarity to the words describing the transmission lines contemplated in subsections 43(2), (3) and (4), which are transmission lines of Canadian carriers or distribution undertakings. The similarity in the description of the transmission lines between subsections 43(2), (3) and (4) on the one hand, and subsection 43(5) on the other, is a strong indicator that Parliament had in mind the same transmission lines, that is, the transmission lines of a Canadian carrier or distribution undertaking in all subsections.

Despite this strong indicator, the respondent makes a number of arguments supporting the contrary conclusion, i.e. that the term "transmission line" in subsection 43(5) cannot mean only transmission lines of Canadian carriers and distribution undertakings but must include all transmission lines.

First, the respondent says that, prior to the enactment of subsection 43(5), the CRTC had exercised powers under predecessors to sections 25 and 27 of the Telecommunications Act to grant access to support structures of telecommunication transmission lines. The argument is that if the term "transmission line" in subsection 43(5) only refers to those of Canadian carriers and distribution undertakings, it is unnecessary, as access to such transmission lines is already provided for and Parliament should not be presumed to enact a redundancy.

I cannot accept this argument, for two reasons. First, subsection 43(5) authorizes the CRTC to grant access to the support structures of distribution undertakings, something the CRTC did not have jurisdiction to do without subsection 43(5).

Second, it makes the jurisdiction of the CRTC to grant access to the support structures of Canadian carriers explicit. This is significant because it is not at all certain that the CRTC would have that jurisdiction without subsection 43(5). Contrary to the respondent's argument, the predecessors of sections 25 and 27 of the Telecommunications Act did not confer on the CRTC the authority to grant access to the support structures of telephone lines. Sections 25 and 27 and their predecessors are rate-setting provisions. The predecessors had been held to confer jurisdiction on the CRTC to regulate the terms of support structure agreements, but not access (see British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739, at paragraph 36). Access had been found to be regulated under section 317 of the Railway Act, R.S.C. 1970, c. R-2 and section 51 of the National Transportation Act, R.S.C. 1970 c. N-17 (see Transvision (Magog) Inc. v. Bell Canada, [1975] C.T.C. 463).

Section 42 of the Telecommunications Act appears to incorporate some aspects of section 317 of the Railway Act and section 51 of the National Transportation Act.    However, section 42 is sufficiently different that it is not certain that the interpretation of sections 317 of the Railway Act and 51 of the National Transportation Act would apply to section 42. In other words, it is by no means clear that, in the absence of subsection 43(5) of the Telecommunications Act, the CRTC would have authority to grant access to the support structures of transmission lines of Canadian carriers. For these reasons I do not find the redundancy argument of the respondent to be persuasive.

Second, the respondent says that throughout the Act, the term "transmission line" is expressly qualified as being a transmission line of a Canadian carrier or distribution undertaking. If the unqualified reference to "transmission line" in subsection 43(5) is intended to mean only the transmission line of a Canadian carrier or distribution undertaking, then the reference to Canadian carrier and distribution undertaking as qualifying the term "transmission line" elsewhere in the Act is surplusage. Put another way, the respondent says that by using different words in subsection 43(5) from those used elsewhere dealing with transmission lines, Parliament must have intended a different thing.

With respect, this argument overlooks the relationship between subsection 43(5) and the balance of section 43. The terms "transmission line" or "transmission lines" are found in subsections 43(2), (3), (4) and (5). Where, in prior subsections, transmission lines are those of Canadian carriers or distribution undertakings, I would think it implicit, unless the context requires a contrary interpretation, that the transmission lines in a subsequent subsection of the same section would be similarly qualified. This is known as the presumption of consistency of expression. As subsections 43(2), (3) and (4) each deal with transmission lines constructed by Canadian carriers or distribution undertakings on highways or other public places, the reference in subsection 43(5) to a transmission line constructed on a highway or other public place, is intended to mean the same transmission line, that is, a transmission line of a Canadian carrier or distribution undertaking.

In dealing with the presumption of consistency of expression, Cory J. in Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385 stated at pages 400 and 401:

The word is used in other provisions of the Act. Unless the contrary is clearly indicated by the context, a word should be given the same interpretation or meaning whenever it appears in an act...Parliament could not have intended the word "recommendations" in the subsequent subsection of the same section to receive a different interpretation. The word must have the same meaning in both subsections.In Driedger, supra, at page 164, Ruth Sullivan summarizes the approach of Cory J. in Thomson in the following words:

The reasoning of Cory J. is exemplary. He first notes that elsewhere in the legislation the word or expression to be interpreted has a single clear meaning; he then invokes the presumption of consistent expression to justify his conclusion that this meaning must prevail throughout. Finally, he points out that the presumption applies with particular force where the provisions in which the repeated words appear are close together or otherwise related. This way of resolving ambiguity is often relied on in the cases.

I adopt the approach of Cory J. in Thomson in my analysis.

Of course, consistency of expression is a presumption and it may be rebutted by the context in which an expression is used. That is not the case here. As I have already explained, in the context of section 43(5), for the term "transmission line" to apply to all lines, the term "person" must be read down in circumstances in which the transmission lines in question are not those of undertakings otherwise subject to the regulatory jurisdiction of the CRTC; alternatively when the person applying for access is not otherwise subject to the regulatory jurisdiction of the CRTC, the term "transmission line" must be read down to be a transmission line of a Canadian carrier or distribution undertaking. For the reasons I have given, I do not accept this flexible interpretation of the term "transmission line" in subsection 43(5) and would conclude that the presumption of consistent expression has not been rebutted.

Finally, on this point, the absence of express reference to a Canadian carrier or distribution undertaking in subsection 43(5) should not be seen as injecting a wholly new meaning of the term "transmission line" in that subsection. I agree with the submission of counsel for the intervener Saskatchewan Power Corporation that if it had been Parliament's intention that the CRTC be authorized to grant access to all kinds of transmission lines, including those of power utilities, it is more likely it would have framed a free-standing section of the Act to that effect. It would not have drafted a subsection as the final element of a section which deals exclusively with transmission lines of Canadian carriers and distribution undertakings.

A third argument of the respondent was made orally at the hearing of the appeal and derives from the reasons of the CRTC. The argument is that interpreting subsection 43(5) to include all transmission lines, and not just those of Canadian carriers and distribution undertakings, complements the CRTC's jurisdiction under subsection 43(4). Under subsection 43(4), the CRTC decides whether to permit a Canadian carrier or distribution undertaking to construct a transmission line, having regard to the use and enjoyment of the affected highway or other public place by others. In making this assessment, it is argued that the CRTC should have regard to whether, as an alternative to entering and breaking up the highway or other public place, the Canadian carrier or distribution undertaking may access the support structures of other existing transmission lines, including the transmission lines of power utilities. If that alternative is preferable to the construction of a transmission line by the Canadian carrier or distribution undertaking, subsection 43(5) confers on the CRTC the power to order access to the support structures of a transmission line that is already in place, even if the transmission line is one belonging to an electric utility.

While this interpretation has some appeal, the scheme of subsection 43(5) and its sequence after subsection 43(4), makes it unlikely that this was Parliament's intention. Subsection 43(5) requires an application by a person who provides services to the public before the CRTC may grant an access order. If access to support structures of existing transmission lines was a consideration that could result in the CRTC refusing permission for construction under subsection 43(4), subsection 43(5) would not require an access application to engage the CRTC's jurisdiction. In other words, the legislation would provide that the CRTC, in considering a construction application by a Canadian carrier or distribution undertaking under subsection 43(4), could either make an order permitting construction or, having regard to the use and enjoyment of the highway or other public place by others, order that the Canadian carrier or distribution undertaking be given access to support structures of existing transmission lines. That is not the scheme of the legislation.

I conclude that in the context of section 43 as a whole, the term "transmission line" in subsection (5) refers to a transmission line of a Canadian carrier or distribution undertaking and not to all transmission lines.

The Policies in Section 7 of the Telecommunications Act

and subsection 3(1) of the Broadcasting Act

In interpreting subsection 43(5) as including all transmission lines, the CRTC relied heavily on the telecommunications policies in paragraphs 7(a), (b), (c) and (f) of the Telecommunications Act and the broadcasting policy in subparagraph 3(1)(t)(ii) of the Broadcasting Act. (See Telecom Decision CRTC 99-13, paras. 125-132).

Under paragraph 47(a) of the Telecommunications Act, the CRTC is required to:

Under subsection 5(1) of the Broadcasting Act:

The telecommunications policies to which the CRTC referred in its reasons were:

The CRTC found that duplicate infrastructures were a cost that had to be borne by subscribers and could act as a barrier to entry and a disincentive to the development of networks, contrary to the telecommunications policies in paragraph 7(a), (b), (c) and (f). It therefore interpreted subsection 43(5) so as to avoid the construction of duplicate infrastructures.

The broadcasting policy objective to which the CRTC referred was:

The CRTC determined that the use of support structures of existing transmission lines by distribution undertakings was consistent with this policy.

The CRTC also had regard for environmental and aesthetic consequences linked to the construction of avoidable duplicate infrastructures.

The respondent adopted these arguments in its submissions on appeal.

It is not for the Court to approve or disapprove of policy objectives expressed in legislation. They must be accepted as being the objectives Parliament had in mind in enacting the Telecommunication Act and Broadcasting Act. However, the CRTC does not have plenary power to implement these policies. The CRTC's power is established under the Acts (and other relevant legislation) and the policy objectives of those Acts may be implemented by the CRTC only in accordance with the powers and duties conferred on it under those Acts. The policies themselves do not confer jurisdiction on the CRTC and they cannot be used as a basis for exercising a power that the CRTC has not been granted by the power conferring provisions of the statutes.

For the reasons I have given, I am of the opinion that subsection 43(5) does not confer on the CRTC the power to grant access to support structures of all transmission lines. The policies of the Telecommunications Act and Broadcasting Act must therefore be implemented by the CRTC having regard to that constraint.

I acknowledge that from the point of view of the respondent and CRTC, efficiency and the avoidance of duplication of infrastructures for Canadian carriers and distribution undertakings might be more effectively achieved if the CRTC had jurisdiction to make access orders to the support structures of the transmission lines of the power utilities and others. However these objectives may still be attainable without such CRTC jurisdiction. As the evidence before the CRTC has demonstrated, up to 1996, Canadian carriers and distribution undertakings obtained access to support structures of the transmission lines of the power utilities by agreement. If the power utilities have capacity on their support structures to accommodate the transmission lines of Canadian carriers and distribution undertakings, and if there are no technical reasons for not doing so, it would seem logical for the utilities to grant such access at rates acceptable to them and that the Canadian carriers and distribution undertakings would find preferable to the alternative of constructing their own support structures.

In addition, the appellants point out that in a number of provinces, the provincial public utility boards appear to have jurisdiction to regulate access to the support structures of transmission lines of the utilities they regulate. See for example, Public Utilities Board Act, R.S.A. 1980, c. P-37, s. 88; Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 27; Public Utilities Act, R.S.N. 1990, c. P-47, s. 53. Indeed, by its decision 2000-86 dated December 27, 2000, in Transalta Utilities Corporation, the Alberta Energy and Utilities Board fixed a rate of $18.35 per pole per year for the use by communications or cable companies who attach equipment to Transalta poles. I would also note that in its decision, the Board disagreed with the reasons and conclusion of CRTC decision 99-13.

The appellants represented that the Ontario Energy Board has such authority under section 70 of the Ontario Energy Board Act, 1998, being Schedule B of the Energy Competition Act, 1998, S.O. 1998, c. 15 in connection with its power to impose conditions on licenses granted to owners or operators of electric transmission or distribution systems.

In any event, where agreement cannot be reached with the utilities or the access and conditions established by provincial utility boards are not consonant with Canadian telecommunications policy or broadcasting policy, or there is no applicable provincial regulatory jurisdiction with respect to access, Canadian carriers or distribution undertakings may resort to subsections 42(2) and (3) and, if necessary, to the regulatory jurisdiction of the CRTC under subsection 43(4) of the Telecommunications Act to enable them to construct their own transmission lines.

Legislative History

I turn, finally, to the legislative history of subsection 43(5). The CRTC found that relevant legislative history supported the view that it was appropriate to construe subsection 43(5) broadly to include the transmission lines of all utilities including those of the appellants. It first referred to the Report of the Co-chairs of the Local Networks Convergence Committee, entitled, Convergence, Competition and Co-operation (Ottawa: Minister of Supply and Services, 1992) appointed under the authority of the Minister of Communications in 1991. The Committee developed recommendations for changes to government policy and regulation to govern the future evolution of the local telecommunications markets infrastructure and the increasing convergence of the services and markets of telephone companies and cable operators.

The report of the Committee referred to the historic sharing of infrastructures. Its recommendations refer to regulation, when necessary, to ensure such sharing. Recommendations 7, 8 and 9 provide:

7. Canadian policy and regulation should continue to promote the sharing of support structures by telephone companies, cable operators and other support structure providers. In this regard, the concept of support structures should be defined more broadly in the future, taking into account new technologies such as fibre optic cables, for which sharing arrangements can improve the efficiency of the local network infrastructure.

8. Government policy and regulation should not prevent the development of joint ventures between telephone companies and cable operators that are aimed at achieving more effective and efficient sharing of support structures.

9. Telephone companies and cable operators should, in conjunction with electrical power utilities, and other providers of support structures, establish better cooperative mechanisms to plan the shared construction and use of support structures. Where necessary, regulators should intervene to ensure that such cooperative mechanisms are developed and implemented and that they function effectively.

I do not read these recommendations or anything in the report of the Convergence Committee to which the respondent referred, as indicating that such regulation should necessarily be under the authority of the CRTC. On the contrary, the report appears circumspect about the identity of the regulators to which the Committee was referring. There is no express reference to any particular regulator. Nor is there any suggestion that Parliament should enact legislation to confer regulatory power on the CRTC over infrastructures of utilities not otherwise subject to CRTC jurisdiction when Canadian carriers' or distribution undertakings' access is at issue.

By contrast, the Committee appears to have recognized the necessity, if distribution undertakings could not negotiate access to support structures of existing transmission lines owned by others, that they be given the same right of access to public rights-of-way to construct their own transmission lines as Canadian carriers. Express reference to recognizing the requirements of distribution undertakings to such rights in federal legislation was made by the Committee and cited by the CRTC at paragraph 115 of its decision:.

In order to prevent unnecessary duplication of support structures, as well as potential environmental disruption and aesthetic problems, government policy and regulation should continue to require cable operators to negotiate with other potential suppliers of support structures to obtain suitable facilities. However, where these negotiations are unsuccessful, it would be reasonable to grant cable operators similar rights to access to public rights of way as telephone companies. At the federal level, these rights, which are currently set out in the Railway Act, are proposed to be simplified and updated by means of clauses 48 and 49 of Bill C-62.

Incorporating distribution undertakings in section 43 would appear to be the legislative response to the observations and recommendations of the Convergence Committee.

The CRTC also made reference to submissions before the House of Commons Sub-Committee on Bill C-62 (leading to the Telecommunications Act) of the Standing Committee on Communications and Culture. Submissions by the cable companies seem to have been focussed on granting them the same rights as telephone companies to obtain an order of the Commission granting them authority to construct their own transmission lines on public highways and other public places. The Sub-Committee also noted that the provinces had raised concerns about a proliferation of undertakings trying to "dig up highways". The Minister of Industry responded to the Sub-Committee as follows at page 8:7 of Canada, House of Commons, Sub-Committee on Bill C-62, Minutes of Proceedings and Evidence, (11 May 1993):

If the subcommittee agrees, clauses 48 and 49 [now sections 43 and 44 of the Act], will be amended so that they apply equally to broadcasting distribution undertakings as defined under the Broadcasting Act. In addition, we will propose an amendment to clause 48 of the bill that will provide for efficient use, by those serving the public, of support structures constructed on public rights of way and require the CRTC to take account of all uses of the right-of-way or other public place prior to issuing any orders under this clause.

The CRTC concluded at paragraphs 121 and 122 of its decision 99-13:

121. Accordingly, the section was amended to include reference to distribution undertakings in subsections 43(1) to (4), and subsection 43(5) was adopted in its entirety. The amendments were adopted on Third Reading without any further discussion.

122. Based on the concerns expressed and the comments and recommendations made prior to the addition of subsection 43(5), the Commission is of the view that the underlying intent in adding that provision was to ensure that the granting of construction rights to Canadian carriers and distribution undertakings to build their own infrastructure did not represent the only alternative available to these undertakings where a more efficient use of existing support structures could be made available.

The respondent adopted the CRTC's interpretation of Parliament's reason for subsection 43(5), that construction of their own transmission lines was not to be the only alternative available to distribution undertakings and Canadian carriers.

I am unable to draw the same inference as have the CRTC and the respondent from the Minister's statement. On the point at issue here, I am of the respectful view that the comments are ambiguous. It is not obvious to whom the Minister was referring when he used the words "those serving the public" or "support structures". I do not think the Minister's statement assists in determining whether subsection 43(5) was intended to confer jurisdiction on the CRTC over access to support structures of transmission lines of power utilities or others that are not undertakings subject to the regulatory jurisdiction of the CRTC.

Of relevance to the issue in this appeal, there seems to be one glaring omission in the legislative history. It is the absence of any submissions by the utilities not under the jurisdiction of Parliament or the CRTC to the Parliamentary Sub-Committee on the application of subsection 43(5). I find it hard to believe that if it had been the Government's intention that subsection 43(5) should confer jurisdiction on the CRTC over access by Canadian carriers or distribution undertakings to the support structures of the transmission lines of utilities subject to provincial jurisdiction, that such intent would not have been expressly made known and submissions invited. I do not say that Parliament could not enact such a provision; nor need I make any determination as to whether such a provision would be within the constitutional jurisdiction of Parliament. However, I would not attribute to the federal Government or to Parliament an intention to confer such jurisdiction on a federal regulatory tribunal through the guise of an ambiguous provision that was enacted without express notice to the provinces or their utilities of such an intention. There is nothing in the legislative history before the Court that indicates it did so.

The legislative history supports the view that, in response to submissions of the provinces regarding the proliferation of undertakings to "dig up highways", and in order to regulate access to support structures of transmission lines as between Canadian carriers and distribution undertakings, subsection 43(5) was enacted to grant access to support structures of the transmission lines of Canadian carriers and distribution undertakings by each other and by other persons who provide services to the public.

CONCLUSION

The term "transmission line" in subsection 43(5) is unqualified and in the abstract might apply to transmission lines of the appellants. However, when read in the context of subsection 43(5) and section 43 as a whole, and having regard to the legislative history, I am satisfied that the term, as used in subsection 43(5), refers to the transmission lines of Canadian carriers and distribution undertakings only. I conclude that the CRTC erred in interpreting subsection 43(5) as conferring on it the jurisdiction to regulate access and terms of access to support structures of transmission lines owned by the appellants. I would allow this appeal with costs, I would set aside Telecom Decision CRTC 99-13 and I would dismiss the respondent Canadian Cable Television Association's application before the CRTC.

                        "Marshall Rothstein"             

                J.A.

"I concur

     Alice Desjardins J.A."

"I concur

     K. Sharlow J.A."