Canada (Dir. of Investigation) v. N.B. Telephone

1. Le Dain J.‑‑This appeal raises the following questions: (a) whether a public officer whose office has been created by statute requires statutory authority, express or implied, to intervene in his official capacity in proceedings before an administrative tribunal, with the permission of the tribunal, to make representations and adduce evidence with respect to the public policy for which he is responsible; (b) if so, whether an administrative tribunal may validly permit such intervention despite the lack of such authority; and (c) if not, whether the Director of Investigation and Research under the Combines Investigation Act, R.S.C. 1970, c. C‑23, as amended by S.C. 1974‑75‑76, c. 76, had statutory authority to intervene in proceedings before a provincial regulatory tribunal, with the permission of the tribunal, to make representations and adduce evidence with respect to the competition implications of an application by a provincial public utility for confirmation of its view that it was not required by its general tariff to impose standard service charges on the transfer of customers from one service to another pursuant to the company's acquisition of the assets of certain businesses.

2. The appeal is by leave of this Court from the judgment of the New Brunswick Court of Appeal on April 6, 1984 (reported as Re Hunter and Board of Public Utilities of New Brunswick (1984), 8 D.L.R. (4th) 454), allowing an appeal from the judgment of the Court of Queen's Bench on November 18, 1983, which dismissed an application for judicial review of the decision of the Board of Commissioners of Public Utilities for New Brunswick on March 2, 1983 refusing the Director permission to intervene in the application of the New Brunswick Telephone Company, Limited for confirmation of its interpretation of its general tariff, as indicated above, on the ground that the Director lacked statutory authority or capacity to intervene.

3. This appeal was heard at the same time as the appeal in Canada (Director of Investigation and Research under the Combines Investigation Act) v. Newfoundland Telephone Co. ("the Newfoundland Telephone Co. appeal"), [1987] 2 S.C.R. 466, in which judgment on the same issues has been rendered today. For the reasons given in the Newfoundland Telephone Co. appeal, in which reference is made to the decision of the Board of Commissioners of Public Utilities for New Brunswick, the judgment of the Court of Queen's Bench and the judgment of the Court of Appeal, I conclude that the Board did not err in refusing the Director permission to intervene. I would accordingly allow the appeal, set aside the judgment of the Court of Appeal, and restore the judgment of the Court of Queen's Bench and the decision of the Board of Commissioners of Public Utilities, with costs to the appellant against the Director in this Court and in the Court of Appeal.

Appeal allowed with costs.

Solicitors for the appellant: Clark, Drummie & Company, Saint John.

Solicitor for the respondent Lawson A. W. Hunter: The Attorney General of Canada, Ottawa.