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
Administrative law ‑‑ Audi alteram partem ‑‑ Failure to give notice ‑‑ CRTC deciding who could perform installation work on telephone company's support structures ‑‑ CRTC decision affecting rights of employees of telephone company ‑‑ Whether CRTC exceeded its jurisdiction in failing to provide union with notice of CRTC hearing ‑‑ National Telecommunications Powers and Procedures Act, R.S.C., 1985, c. N‑20, ss. 66, 72, 74.
This appeal, which was heard at the same time as British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739 ("BC Tel"), and arises out of the same factual circumstances, concerns TWU's application for judicial review of the same CRTC decision challenged in BC Tel. The Federal Court of Appeal dismissed the application in light of its judgment in BC Tel. Two issues are raised in this appeal: (1) whether the CRTC exceeded its jurisdiction in failing to provide notice to TWU of the application and proceedings which led to the CRTC decision; and (2) whether the CRTC erred in law and exceeded its jurisdiction in issuing the decision in question by allegedly failing to follow an established policy of deferring to decisions of arbitration boards constituted by BC Tel and the TWU with respect to the work jurisdiction of BC Tel employees.
Held (Lamer C.J. and Sopinka and Cory JJ. dissenting): The appeal should be dismissed.
Per La Forest, L'Heureux‑Dubé, Gonthier, Iacobucci, McLachlin and Major JJ.: The audi alteram partem rule did not require that the TWU be provided with notice of the CRTC hearing. The TWU was not a party nor did it have a direct interest in the proceedings before the tribunal. The CRTC decision concerned questions of telecommunications policy, not labour relations, and a consideration of the "work jurisdiction" of the TWU would have been irrelevant to that decision. The audi alteram partem rule should not be interpreted as requiring that notice be provided to parties indirectly affected by regulatory proceedings. In any event, even if that rule would normally have required the CRTC to notify the TWU of the proceedings, s. 72 of the National Telecommunications Powers and Procedures Act relieves the CRTC of this obligation and places the responsibility of notifying TWU on BC Tel. This provision should be read as shielding CRTC decisions from challenge on the grounds that a regulatee failed to notify its employees of the proceedings. In such circumstances, the appropriate remedy would be for the employees to apply to the CRTC for a re‑hearing under s. 66 of the Act. Finally, the CRTC did not err in law or exceed its jurisdiction by failing to follow a policy of deferring to the decisions of arbitration boards. The CRTC has never adopted such a policy and it would be improper for it to adopt one as this would be an improper delegation or fettering of its discretionary powers.
Per Lamer C.J. and Sopinka and Cory JJ. (dissenting): In the special circumstances of this case, the failure to provide TWU with notice of the proceedings before the CRTC breached the requirements of natural justice. The collective agreement between TWU and BC Tel stipulates that any maintenance, repair or construction of BC Tel's support structures must be performed exclusively by members of TWU. Although, in accordance with its mandate, the CRTC was specifically concerned with telecommunications policy, it was well aware that its decision, on the very question of who had the right to perform the work on BC Tel's support structures, would have a substantial impact on TWU's work jurisdiction, thereby directly affecting the rights of the union and its members. While it would potentially be unduly onerous on regulatory agencies if notice had to be provided to all individuals having contractual relations with a regulated party, notice should be given where, as here, the administrative tribunal must actually address a key aspect of the contract directly pertaining to the rights of a third party. The CRTC decision would have a direct bearing on the viability of a specific provision in the collective agreement. In such a situation, it cannot be contended that the interest was indirect merely because it is derived from the contract. Furthermore, the practical problems that might be associated with any duty to notify individuals in a contractual relation with a regulated party are absent in this case. Given that TWU was a party to previous proceedings of the CRTC where essentially the same question was considered, the CRTC was aware that the interests of the union were substantially and equally at stake in the application leading to the impugned decision. There would thus have been no practical hardship in requiring the CRTC to give notice to TWU.
Nothing in the National Telecommunications Powers and Procedures Act relieves the CRTC of its duty to provide notice to TWU in accordance with the audi alteram partem rule. Section 72, which obliges a party to a proceeding to provide notice to its officers and servants, does not absolve an administrative tribunal from its duty to comply with the dictates of natural justice. Although, generally, the employer is in the best situation to know whether the employees' interests are at stake, where, to the knowledge of the CRTC, the officers or servants of a party will be directly affected by the proceedings, the rules of natural justice require the CRTC to ensure notice is given, regardless of the employer's obligations under the Act. Section 66 of the Act does not provide an appropriate remedy for employees who have not been given notice. Where natural justice requires that a party be given notice and a tribunal fails to provide such notice, the aggrieved party is entitled to judicial review of the decision. It is not an adequate alternative remedy to request that the tribunal, in its discretion, rehear the application after it has already decided it. Section 74 of the Act applies only in situations where the CRTC decides to proceed without notice based on any "ground of urgency, or for other reason". This did not occur in the present case. Thus, s. 74 is inapplicable.
Cases Cited
By L'Heureux‑Dubé J.
Referred to: British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739; Canadian Transit Co. v. Canada (Public Service Staff Relations Board), [1989] 3 F.C. 611.
By Sopinka J. (dissenting)
British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Old St. Boniface Residents Assn. v. Winnipeg (City), [1990] 3 S.C.R. 1170; Canadian Transit Co. v. Canada (Public Service Staff Relations Board), [1989] 3 F.C. 611; Alliance des professeurs catholiques de Montréal v. Quebec Labour Relations Board, [1953] 2 S.C.R. 140, [1953] 4 D.L.R. 161.
Statutes and Regulations Cited
National Telecommunications Powers and Procedures Act, R.S.C., 1985, c. N‑20 [rep. 1993, c. 38, s. 130], ss. 66, 72, 74.
APPEAL from a judgment of the Federal Court of Appeal, [1993] F.C.J. No. 444 (QL), dismissing appellant's application for judicial review of a decision of the Canadian Radio‑television and Telecommunications Commission. Appeal dismissed, Lamer C.J. and Sopinka and Cory JJ. dissenting.
Morley D. Shortt, Q.C., and Donald Bobert, for the appellant.
Thomas G. Heintzman, Q.C., and Susan L. Gratton, for the respondent Shaw Cable Systems (B.C.) Ltd.
Avrum Cohen, Allan Rosenzveig and Carolyn Pinsky, for the respondent the CRTC.
Jack Giles, Q.C., Judy Jansen and Alison Narod, for the respondent British Columbia Telephone Co.
The reasons of Lamer C.J. and Sopinka and Cory JJ. were delivered by
1 Sopinka J. (dissenting) -- The issue raised on this appeal is whether the Canadian Radio-television and Telecommunications Commission ("CRTC") violated the principles of natural justice by failing to provide formal notice to the Telecommunications Workers Union ("TWU") regarding the application which resulted in Telecom Letter Decision CRTC 92-4 ("Decision 92-4"). Those proceedings involved a dispute between Shaw Cable Systems (B.C.) Ltd. ("Shaw Cable") and the British Columbia Telephone Company ("BC Tel") concerning who was entitled to perform the installation work on the support structures belonging to BC Tel.
2 TWU represents the bargaining unit for approximately 12,000 employees of BC Tel. The collective agreement between TWU and BC Tel stipulates that any maintenance, repair or construction of the support structure must be performed exclusively by members of TWU. Therefore, it is apparent that Decision 92-4 would necessarily impact upon the work jurisdiction of the employees represented by TWU. In my view, in light of the unique circumstances of this case, the failure to provide TWU with notice of the proceedings before the CRTC breached the requirements of natural justice.
3 As L'Heureux-Dubé J. has noted, the factual context and the history of the proceedings which gave rise to the present appeal have been fully set out in her reasons in the companion case, British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739. I do not find it necessary to repeat them here. However, in light of the fact that the principles of natural justice, including the audi alteram partem rule, are dependent on the particular circumstances of the case, it will be necessary to emphasize certain facts in the course of my reasons, in order to explain my conclusion that TWU was entitled to notice of the proceedings between Shaw Cable and BC Tel.
I. Relevant Statutory Provisions
4 For convenience, I set out the relevant statutory provisions below:
National Telecommunications Powers and Procedures Act, R.S.C., 1985, c. N-20
66. The Commission may review, rescind, change, alter or vary any order or decision made by it or may re-hear any application before deciding it.
72. Every company shall, as soon as possible after receiving or being served with any regulation, order, direction, decision, notice, report or other document of the Minister or the Commission, or the inspecting engineer, notify each of its officers and servants performing duties that are or may be affected thereby by delivering a copy to them or by posting a copy in some place where their work or duties, or some of them, are to be performed.
74. (1) Subject to this Act, when the Commission is authorized to hear an application, complaint or dispute, or make any order, on notice to the parties interested, it may, on the ground of urgency, or for other reason appearing to the Commission to be sufficient, notwithstanding any want of or insufficiency in the notice, make the like order or decision in the matter as if due notice had been given to all parties, and the order or decision is as valid and takes effect in all respects as if made on due notice.
(2) Any company or person entitled to notice and not sufficiently notified may, at any time within ten days after becoming aware of an order or decision made under subsection (1), or within such further time as the Commission may allow, apply to the Commission to vary, amend or rescind the order or decision, and the Commission shall thereupon, on such notice to other parties interested as it may in its discretion think desirable, hear the application, and either amend, alter or rescind the order or decision, or dismiss the application, as may seem to it just and right.
II. Issue
Did the CRTC exceed its jurisdiction in failing to provide notice to TWU of the application and proceedings which resulted in Decision 92-4?
III. Analysis
A. The Requirements of Natural Justice
5 The jurisprudence of this Court has made it clear that the requirements of natural justice depend on the circumstances of the case, the nature of the inquiry, the subject matter being dealt with and the statutory provisions under which the tribunal is acting: Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, and Old St. Boniface Residents Assn. v. Winnipeg (City), [1990] 3 S.C.R. 1170, at pp. 1191-92. In each case it must be determined whether the party claiming the right to have been given notice and an opportunity to be heard had a sufficient interest in the proceedings such that notice was required by the audi alteram partem principle.
6 In her reasons, my colleague suggests that TWU's interest in the proceedings before the CRTC was merely indirect as Decision 92-4 was addressing telecommunications policy and not labour relations. With respect, the fact that the CRTC was specifically concerned with telecommunications policy in accordance with its mandate does not detract from the fact that its decision would have a substantial impact on the work jurisdiction of TWU, thereby directly affecting the rights of the union and its members. The very question before the CRTC concerned who had the right to perform the work on the support structures belonging to BC Tel. The CRTC was well aware of the impact that its decision would have on TWU. Although the purpose behind Decision 92-4 may not have been related to the "work jurisdiction" of TWU and the CRTC may have been seeking to avoid entering the realm of labour relations, this is no answer to a violation of natural justice where a decision could potentially override the union's rights.
7 The principal, if not the sole, reason for BC Tel's application to the CRTC was to determine who could do the work in light of the arbitration award of July 19, 1991 (the "Glass Award") involving TWU. This is what prompted BC Tel to submit a revised Support Structure Agreement to the CRTC for approval, in October 1991. Before the CRTC, BC Tel argued that the Glass Award made it impossible for the company to allow anyone other than its own employees to attach equipment on its support structures. Shaw Cable opposed this position. In my view, it was clearly unfair not to provide notice of the proceedings in these circumstances.
8 To support her conclusion, L'Heureux-Dubé J. relies on the decision in Canadian Transit Co. v. Canada (Public Service Staff Relations Board), [1989] 3 F.C. 611 (C.A.), for the proposition that, in order to be entitled to notice, one's interest must not merely be affected by virtue of a contractual relationship with one of the regulated parties immediately involved in the proceedings. Generally, I am in agreement that it would potentially be unduly onerous on regulatory agencies if notice had to be provided to all individuals having contractual relations with a regulated party. As my colleague observes, there are a myriad of decisions of a regulatory agency which could have an indirect impact on individuals simply because they are privy to a contract with the regulated party. For example, any decision of the CRTC which impacts on the financial status of a party falling within its regulatory jurisdiction will likely also incidentally affect those with whom that party contracts. Surely, this alone is an insufficient contingent interest to warrant the existence of a duty to provide notice of the proceedings before the administrative tribunal.
9 However, in my view, there are special circumstances which arise in this case such that the audi alteram partem rule mandates that formal notice be given to TWU. The central focus of the ruling of the CRTC specifically concerns the very subject matter of the contract between the BC Tel and TWU. Thus, the interest at stake is not simply a contingent one flowing solely from the effect of the decision on BC Tel. As I have stated, the question the CRTC had to address was whether Shaw Cable and other cable companies were entitled to do the work on BC Tel's support structures. This is precisely what the Glass Award precluded as a result of the interpretation of article 3(1) of the collective agreement. In my view, the passage cited by L'Heureux-Dubé J. from the Canadian Transit case was not intended to apply to situations where the administrative tribunal must actually address a key aspect of the contract directly pertaining to the rights of a third party. The CRTC was well aware of BC Tel's position that the arbitration award prevented it from allowing anyone other than members of the TWU to attach equipment to its facilities. The decision of the CRTC would have a direct bearing on the viability of a specific provision in the collective agreement. In my view, in such a situation it cannot be contended that the interest was indirect merely because it is derived from the contract.
10 Furthermore, the practical problems that might be associated with any duty to notify individuals in a contractual relation with a regulated party are absent in this case. In fact, following the arbitration award of January 25, 1983 (the "Williams Award"), when the Canadian Cable Television Association ("CCTA") applied to the CRTC, in 1987, for an order requiring BC Tel to permit cable licensees, including Shaw Cable, to install their own coaxial cables on BC Tel's support structures, the CRTC permitted TWU to participate. The CRTC knew that TWU's contributions could be very helpful. In a letter decision dated July 28, 1987, the CRTC wrote the following:
On 2 April 1987, the TWU wrote to the Commission advising of its interest in the CCTA's application. By letter dated 27 April 1987, the Commission indicated that it could benefit from the views of the TWU and set out the procedure to be followed by the TWU, B.C. Tel and the CCTA in addressing the issues. [Emphasis added.]
11 Given the fact that TWU was a party to the proceedings in 1987, the CRTC would have been aware that the interests of the union were substantially and equally at stake in the application leading to Decision 92-4 since the question to be considered was essentially identical. The only difference was that, in the interim, TWU had succeeded in obtaining a second arbitration award in its favour, which effectively rendered it impossible for BC Tel to comply with the CRTC's previous order in 1987. As an aside, it should be noted that Shaw Cable was given notice of the Glass arbitration proceedings and was invited to participate, although they declined. This is also indicative of the interrelation between the issues and interests at stake in the proceedings before the labour arbitration panels and the CRTC.
12 It was readily apparent that any order the CRTC made which conflicted with the Glass Award would directly affect the union's rights. The whole basis for BC Tel's application (and therefore Shaw Cable's application in response) was the arbitration awards. Thus, in my opinion, there would have been no practical hardship created whatsoever in requiring the CRTC to give notice to TWU in the present circumstances.
13 The decision of the Federal Court of Appeal in Canadian Transit, supra, supports my conclusion that formal notice was appropriate and necessary in these circumstances. In that case, customs employees requested an enquiry by the Public Service Staff Relations Board in order to determine whether working conditions on a bridge between Windsor, Ontario, and Detroit, Michigan, were unsafe. The bridge was owned and operated by the Canadian Transit Co. Pursuant to the Customs Act , R.S.C., 1985, c. 1 (2nd Supp .) , the owner of the bridge would be responsible for the cost of any repairs that had to be effected in order to ensure that safety requirements were met. The Board held that the conditions on the bridge were unsafe and ordered the government employer to make the necessary safety changes. As a result, Canadian Transit Co. would be responsible for these costs.
14 Canadian Transit Co. sought judicial review of the Board's decision on the ground that it did not receive notice of the proceedings and was not afforded an opportunity to participate. The Federal Court of Appeal unanimously allowed the application and remitted the matter back for a re-hearing at which Canadian Transit Co. would be allowed standing. Marceau J.A., writing the majority reasons, observed that the Board had no authority over Canadian Transit Co. since it was not the employer in the context of those proceedings. Nonetheless, the implementation of the Board's decision would directly and necessarily affect the rights of the company. Similarly, in concurring reasons, MacGuigan J.A. stated that, although the Board's order was directed only to the employer, "the consequences for the applicant were immediate" (p. 618).
15 In the case at bar, just as in the Canadian Transit case, the administrative body was clearly aware of the applicant's interest. To borrow the words of MacGuigan J.A., "this real interest of the applicant was in a sufficiently direct relationship to the subject-matter before the Board that the applicant was entitled to notice of the hearing . . . and an adequate opportunity to present its case" (p. 624).
16 In my view, all of the foregoing suggests that the rules of natural justice required TWU to be notified and provided with an opportunity to be heard. However, it remains to be examined whether there are any provisions within the statutory scheme governing the powers of the CRTC which would alter this conclusion.
B. The Effect of the Statutory Scheme
17 In my colleague's reasons, L'Heureux-Dubé J. argues that even if the rules of natural justice would normally have required the CRTC to furnish notice of the proceedings to TWU, s. 72 of the National Telecommunications Powers and Procedures Act, R.S.C., 1985, c. N-20 ("NTPPA"), relieves the CRTC of that obligation. That provision places a duty on every company subject to a proceeding before the CRTC to notify any of its officers and servants that may be affected by the outcome of the hearing. Therefore, in this case, BC Tel had a duty under s. 72 to notify TWU. With respect, I cannot agree that a provision which obliges a party to a proceeding to provide notice can absolve an administrative tribunal from its duty to comply with the dictates of natural justice. The effect of this would be that a failure on the part of a regulated party to give notice to another interested party in accordance with s. 72 could result in a denial of natural justice without recourse. This is an extraordinary proposition. Rules of procedure frequently leave it to the parties to give notice, but failure to do so is a defect in the proceedings which entitles an aggrieved party to relief irrespective of the origin of responsibility for the default.
18 It is true that, generally, the employer is in the best situation to know whether the employees' interests are at stake. However, in circumstances where, to the knowledge of the CRTC, the officers or servants of a party will be directly affected by the proceedings, nothing in s. 72 abrogates the CRTC's duty to fulfil the requirements of natural justice. Therefore, in the special circumstances of this case, where TWU had been a participant in the 1987 proceedings and the principal reason for the application was to consider who was to perform the work on the support structures in light of article 3(1) of the collective agreement, the rules of natural justice required the CRTC to ensure notice was given, regardless of the employer's obligations under the NTPPA. Procedural fairness is the right of the interested parties and the duty of the administrative tribunal. This does not change where an additional notice obligation is placed on one of the regulated parties.
19 My colleague also refers to s. 66 NTPPA as providing the appropriate remedy for employees who have not been given notice. That section grants the CRTC the power to vary any order or re-hear any application. However, it must be observed that the language used in s. 66 is permissive. In other words, the CRTC has the discretion to vary or re-hear the application. The provision does not provide a right of appeal nor a right to have the decision of the CRTC reviewed on the grounds of a denial of natural justice. Where natural justice requires that a party be given notice and a tribunal fails to provide such notice, the aggrieved party is entitled to judicial review of the decision. It is not an adequate alternative remedy to request that the tribunal, in its discretion, re-hear the application after it has already decided it.
20 Similarly, contrary to Shaw Cable's argument, I do not believe that s. 74 NTPPA is of any assistance in the present appeal. Clearly, that provision applies where, for reasons of urgency or other sufficient reason, the CRTC decides to proceed with a matter without notice. In that case, pursuant to s. 74(2), a party otherwise normally entitled to notice may apply to the CRTC to have the decision varied or amended. However, it is apparent that s. 74 contemplates a situation where natural justice entitles a party to notice and the CRTC, having addressed its mind to the issue, proceeds without notice, in any event, for reasons it deems sufficient. This did not occur in the present case. The CRTC simply neglected to provide any notice to TWU, apparently believing that it was not required. There is absolutely no indication that the CRTC actually decided to proceed with the application without notifying TWU based on any "ground of urgency, or for other reason". Thus, in my view, s. 74 is inapplicable in the instant case.
21 While it is true that the rules of natural justice are dependent on the statutory scheme governing the administrative tribunal, there must be clear statutory language in order to detract from the ordinary principles of procedural fairness. I find the words of Rinfret C.J. in Alliance des professeurs catholiques de Montréal v. Quebec Labour Relations Board, [1953] 2 S.C.R. 140, [1953] 4 D.L.R. 161, at p. 174 D.L.R., to be apposite in the present context:
[translation] The principle that no one should be condemned or deprived of his rights without being heard, and above all without having received notice that his rights would be put at stake, is of a universal equity and it is not the silence of the law that should be invoked in order to deprive anyone of it. In my opinion, nothing less would be necessary than an express declaration of the Legislature in order to put aside this requirement which applies to all Courts and to all the bodies called upon to render a decision that might have the effect of annulling a right possessed by an individual. [Emphasis added.]
This principle applies not only to the entitlement to natural justice but to the right to judicial review when natural justice is denied.
22 In this case, it cannot be said that any of the statutory language employed relieves the CRTC of its duty to provide notice to TWU in accordance with the principle of audi alteram partem. Nor does the NTPPA remove recourse to the courts when there is a failure to comply with the dictates of procedural fairness.
23 It is also worth pointing out that in the companion case, this Court has concluded that, in the event of a conflict, the decision of the CRTC must take precedence over that of the arbitration board. For this reason, it becomes all the more important for TWU to be afforded an opportunity to be heard by the CRTC in order to attempt to preserve its rights.
24 As a result, I am of the view that the failure to notify TWU of the proceedings before the CRTC amounted to a denial of natural justice. While notice need not be given to every union which has a collective agreement with a company that is regulated by the CRTC, I believe that the unique circumstances of this case, which I have discussed above, required that notice be furnished to TWU.
IV. Disposition
25 For all of the foregoing reasons, I would allow the appeal and order the CRTC to re-consider its decision after affording TWU an opportunity to be heard.
The judgment of La Forest, L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci and Major JJ. was delivered by
26 L'Heureux-Dubé J. -- This case was heard at the same time as the companion case of British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739, and arises out of the same factual circumstances. British Columbia Telephone concerns a statutory appeal by the British Columbia Telephone Company ("BC Tel") of Telecom Letter Decision CRTC 92-4 ("Decision 92-4"). This appeal, on the other hand, concerns an application for judicial review by the Telecommunications Workers Union ("TWU") of the same letter decision. Decision 92-4 and the factual circumstances giving rise to this appeal are both described in detail in my reasons in British Columbia Telephone.
27 As regards the procedural history of the case at hand, the TWU's application for judicial review was first heard by the Federal Court of Appeal and was rejected: [1993] F.C.J. No. 444 (QL). In brief reasons, Mahoney J.A., writing on behalf of a unanimous Court of Appeal, noted that the issues raised by the TWU's application for judicial review were, with one exception, substantially identical to those raised by BC Tel in its statutory appeal from Decision 92-4 (which forms the subject matter of British Columbia Telephone). Mahoney J.A. then went on to state:
The ground for this application that is different from those raised on the [statutory] appeal is that TWU was denied natural justice by the CRTC [Canadian Radio-television and Telecommunications Commission] because it was not given notice of the applications which led to decision 92-4.
In the [statutory] appeal, it has been decided that the CRTC had not the jurisdiction to order BC Tel to violate the collective agreement by doing again that which had been conclusively determined to be a violation by an arbitration board constituted as required by the Canada Labour Code. It seems to me that the corollary is that TWU was not entitled to notice of the applications since the CRTC had not the jurisdiction to deprive TWU or its members of any rights they had under the collective agreement. I would, for that reason, and because allowing the [statutory] appeal has rendered it otherwise moot, dismiss this application for judicial review.
It is from this decision that the appellant appeals to this Court.
28 While the appellant raised several grounds in its initial application for judicial review before the Federal Court of Appeal, only two of these grounds are pursued in the appeal to this Court of the Federal Court of Appeal's decision. First, the TWU argues that the CRTC's failure to provide it with notice of the proceedings which resulted in Decision 92-4 deprived the CRTC of its jurisdiction and that as such Decision 92-4 is invalid. Second, the TWU claims that Decision 92-4 should be overturned on the ground that the CRTC erred in law and exceeded its jurisdiction by allegedly failing to follow its established policy of deferring to decisions of arbitration boards constituted by BC Tel and the TWU with respect to the work jurisdiction of BC Tel employees.
Failure to Provide Notice
29 The audi alteram partem rule, which is a component of the principles of natural justice and of procedural fairness, requires that a person who is a party to proceedings before a tribunal be informed of the proceedings and provided with an opportunity to be heard by the tribunal.
30 The appellant TWU argues that it has an interest in Decision 92-4 and that consequently it was entitled to the aforementioned procedural protections as regards that decision. Specifically, the TWU argues that Decision 92-4 will have an effect on the work jurisdiction given to members of the TWU. Consequently, the TWU argues that it was entitled to notice of the proceedings leading to the decision and that in the absence thereof the decision is invalid.
31 The respondent Shaw Cable Systems (B.C.) Ltd., on the other hand, contends that the TWU was not entitled to notice because its interest in the CRTC proceedings in question was purely indirect. In this respect, the respondent referred to the comments of Marceau J.A. in Canadian Transit Co. v. Canada (Public Service Staff Relations Board), [1989] 3 F.C. 611 (C.A.), at p. 614:
It is clear to me that mere interest in the eventual outcome of a proceeding before a tribunal, whether financial or otherwise, is not in itself sufficient to give an individual a right to participate therein. The demands of natural justice and procedural fairness certainly do not require so much and in any event it would be impossible in practice to go that far. In my judgment, to be among the interested parties that a tribunal ought to involve in a proceeding before it to satisfy the requirements of the audi alteram partem principle, an individual must be directly and necessarily affected by the decision to be made. His interest must not be merely indirect or contingent, as it is when the decision may reach him only through an intermediate conduit alien to the preoccupation of the tribunal, such as a contractual relationship with one of the parties immediately involved. [Emphasis added.]
32 In general, I agree with the submissions of the respondent. In my view, the TWU's interest in the proceedings before the CRTC was purely indirect. The CRTC decision concerned questions of telecommunication policy. The CRTC was required to decide on the best way to regulate a monopoly telephone company in order to preserve the public interest. The purpose behind the CRTC decision was totally unrelated to the "work jurisdiction" of the TWU. In fact, such a consideration would have been irrelevant to the CRTC decision. Consequently, the TWU had no relevant interest to represent before the CRTC. While the TWU may have been affected by the CRTC decision, the effect of this decision on the TWU was purely indirect. Accordingly, I conclude that audi alteram partem did not require that the TWU be provided with notice of the CRTC hearing. The TWU was not a party nor did it have a direct interest in the proceedings before the tribunal.
33 In this respect, it is important to note that a finding in the case at hand that the TWU was entitled to notice would have grave consequences that could paralyse regulatory agencies. Effectively, it would mean that all individuals with contractual relations with a regulatee would have to be given notice of regulatory proceedings concerning that regulatee if such proceedings were likely to effect, even indirectly, the person in question. Given the wide scope of many regulatory agencies, their decisions are likely to have an indirect effect on a large number of individuals in contractual relations with the regulatee. As a result, all such parties would have to be provided with notice of the regulatory proceedings. This is particularly problematic in light of the extreme difficulty of ascertaining exactly who these parties are in advance of the hearing and the possibility that, in the absence of notice, these parties would be able to challenge the legality of the regulatory decision. This could result in an endless series of challenges that would effectively paralyse regulatory agencies. Accordingly, the audi alteram partem rule should not be interpreted as requiring that notice be provided to parties indirectly affected by regulatory proceedings.
34 However, even if I am wrong and the audi alteram partem rule would normally have required the CRTC to notify the TWU of the proceedings in question, in my view, s. 72 of the National Telecommunications Powers and Procedures Act, R.S.C., 1985, c. N-20 ("NTPPA"), effectively relieves the CRTC of this obligation. Section 72 NTPPA read as follows at the time of the issuance of Decision 92-4:
72. Every company shall, as soon as possible after receiving or being served with any regulation, order, direction, decision, notice, report or other document of the Minister or the Commission, or the inspecting engineer, notify each of its officers and servants performing duties that are or may be affected thereby by delivering a copy to them or by posting a copy in some place where their work or duties, or some of them are to be performed.
The effect of this section is to relieve the CRTC of any responsibility to notify the TWU of the proceedings in question. Instead, s. 72 places this responsibility on BC Tel. However, this shift of responsibility would be meaningless if a CRTC decision could still be challenged on the grounds that the TWU was not notified of the proceedings. In my view, s. 72 should therefore be read as shielding CRTC decisions from challenge on the grounds that a regulatee (i.e. BC Tel) failed to notify its employees of the proceedings. Instead, in such circumstances, the appropriate remedy would be for the employees to apply to the CRTC for a re-hearing as permitted by the then applicable s. 66 NTPPA:
66. The Commission may review, rescind, change, alter or vary any order or decision made by it or may re-hear any application before deciding it.
As a result, the remedy available to employees would be equivalent to that available to a party provided with inadequate notice by the CRTC under s. 74 NTPPA. At the time of the events giving rise to this proceeding, s. 74 NTPPA read as follows:
74. (1) Subject to this Act, when the Commission is authorized to hear an application, complaint or dispute, or make any order, on notice to the parties interested, it may, on the ground of urgency, or for other reason appearing to the Commission to be sufficient, notwithstanding any want of or insufficiency in the notice, make the like order or decision in the matter as if due notice had been given to all parties, and the order or decision is as valid and takes effect in all respects as if made on due notice.
(2) Any company or person entitled to notice and not sufficiently notified may, at any time within ten days after becoming aware of an order or decision made under subsection (1), or within such further time as the Commission may allow, apply to the Commission to vary, amend or rescind the order or decision, and the Commission shall thereupon, on such notice to other parties interested as it may in its discretion think desirable, hear the application, and either amend, alter or rescind the order or decision, or dismiss the application, as may seem to it just and right.
35 For all of the above reasons, I reject this ground of appeal.
Failure to Follow CRTC Policy
36 The TWU's second ground of appeal is that the CRTC erred in law and exceeded its jurisdiction by failing to follow an alleged policy of deferring to the decisions of arbitration boards constituted by the parties in respect of this matter.
37 In my view, this ground of appeal is entirely without merit. First, the CRTC has never adopted a policy of deferring to such arbitration board decisions. The TWU refers to passages such as the following as supporting the existence of such a policy:
B.C. Tel argued that Article XXI of its collective agreement with the Telecommunications Workers Union precluded it from contracting this work out, but the clause in question does not appear to prohibit the Company from permitting third parties from installing their own facilities at their own expense. [Telecom Decision CRTC 78-6, July 28, 1978, at p. 27.]
In the absence of an arbitration board ruling that the collective agreement would not permit the work contemplated in those Decisions [Telecom Decisions CRTC 78-6 and 79-22], 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 Agreement. [CRTC Letter Decision, July 28, 1987, at p. 5.]
These passages, however, do not actually establish a policy of deference to arbitration boards. I agree with the respondent Shaw Cable Systems (B.C.) Ltd. that such comments were merely obiter comments designed to respond to the submissions of BC Tel and the TWU. Second, it would be improper for the CRTC to adopt a general policy of deference to an arbitration board as this would be an improper delegation or fettering of the CRTC's discretionary powers.
Disposition
38 For the reasons outlined above, I would dismiss this appeal with costs throughout.
Appeal dismissed with costs, Lamer C.J. and Sopinka and Cory JJ. dissenting.
Solicitors for the appellant: Shortt, Moore & Arsenault, Vancouver.
Solicitor for the respondent the CRTC: The CRTC Legal Directorate, Hull.
Solicitors for the respondent Shaw Cable Systems (B.C.) Ltd.: McCarthy Tétrault, Toronto.
Solicitors for the respondent British Columbia Telephone Co.: Farris, Vaughan, Wills & Murphy, Vancouver.
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