Barrie Public Utilities v. Canadian Cable Television Assn.

Barrie Public Utilities v. Canadian Cable Television Assn.
Collection
Supreme Court Judgments
Date
2003-05-16
Neutral citation
2003 SCC 28
Report
[2003] 1 SCR 476
Case number
28826
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Major, John C.; Bastarache, Michel; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Communications law
Notes
SCC Case Information: 28826
Decision Content
Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1 S.C.R. 476, 2003 SCC 28
Canadian Cable Television Association Appellant
v.
Barrie Public Utilities, Essex Public Utilities Commission,
Guelph Hydro, Innisfil 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 Public Utilities Commission of the City of Scarborough),
Waterloo North Hydro and Kitchener‑Wilmot Hydro Respondents
and
Attorney General of Canada, Attorney General of Ontario,
Attorney General of Quebec, Attorney General of New Brunswick,
Attorney General of Manitoba, Attorney General of British Columbia,
Attorney General for Saskatchewan, Attorney General of Alberta,
Saskatchewan Power Corporation, Federation of Canadian Municipalities,
GT Group Telecom Services Corp., Aliant Telecom Inc., AT & T Canada,
Bell Canada, Bell West Inc., MTS Communications Inc. and
TELUS Communications Inc. Interveners
Indexed as: Barrie Public Utilities v. Canadian Cable Television Assn.
Neutral citation: 2003 SCC 28.
File No.: 28826.
2003: February 19; 2003: May 16.
Present: McLachlin C.J. and Gonthier, Major, Bastarache, Arbour, LeBel and Deschamps JJ.
on appeal from the federal court of appeal
Administrative law — Judicial review — Standard of review — Canadian Radio‑television and Telecommunications Commission — Commission ordering provincially regulated electric power companies to grant cable television companies access to their power poles — Whether Court of Appeal properly reviewed Commission’s decision on correctness standard — Telecommunications Act, S.C. 1993, c. 38, s. 43(5) .
Broadcasting — Telecommunications — Access to power poles — Canadian Radio‑television and Telecommunications Commission ordering provincially regulated electric power companies to grant cable television companies access to their power poles — Whether phrase “the supporting structure of a transmission line” in s. 43(5) of Telecommunications Act includes power poles of provincially regulated electric power companies — Telecommunications Act, S.C. 1993, c. 38, s. 43(5) .
The appellant CCTA seeks access to the power poles of the respondent power utilities for the purpose of supporting cable television transmission lines. In the past, the CCTA’s members have rented space from the utilities under private contract. Since 1996, the parties have been unable to reach agreement. The CCTA obtained an order from the CRTC requiring the utilities to grant it access to their power poles on terms stipulated by the CRTC. The CRTC found that the phrase “the supporting structure of a transmission line” in s. 43(5) of the Telecommunications Act , read in context and in the light of telecommunications and broadcasting policy objectives, was broad enough to grant it authority over the utilities’ power poles. The CRTC found that this interpretation was intra vires Parliament under s. 91of the Constitution Act, 1867 . The utilities successfully appealed this order to the Federal Court of Appeal, which reviewed the decision on a correctness standard and held that s. 43(5) , properly interpreted, does not give the CRTC jurisdiction over the power poles of provincially regulated electric power companies.
Held (Bastarache J. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Gonthier, Major, Arbour, LeBel and Deschamps JJ.: The standard of review applicable to the CRTC’s decision is correctness. All four factors of the pragmatic and functional approach point to that conclusion. Section 64(1) of the Telecommunications Act grants a right of appeal to the Federal Court of Appeal with leave of that court on any question of law or of jurisdiction. While the presence of a statutory right of appeal is not decisive of a correctness standard, it is a factor suggesting a more searching standard of review. With respect to relative expertise, deference to the decision maker is called for only when it is in some way more expert than the court and the question under consideration is one that falls within the scope of its greater expertise. The proper interpretation of the phrase “the supporting structure of a transmission line” in s. 43(5) is not a question that engages the CRTC’s special expertise in the regulation and supervision of Canadian broadcasting and telecommunications. Rather, it is a purely legal question and is therefore ultimately within the province of the judiciary. The court’s expertise in matters of pure statutory interpretation is superior to that of the CRTC, which suggests a less deferential approach. The purposes of the legislation and the provision in particular also point to a less deferential standard of review. While much of the CRTC’s work involves the elaboration and implementation of telecommunications policy, s. 43(5) accords the CRTC the essentially adjudicative role of considering applications from, and providing redress to, public service providers who cannot gain access to the supporting structure of a transmission line on terms acceptable to them. Finally, regarding the nature of the problem, even pure questions of law may be granted a wide degree of deference where other factors suggest the legislature so intended. But that is not the case here.
Section 43(5) cannot bear the broad meaning given to it by the CRTC and advanced by the CCTA. Looking for the moment at the subsection alone, three points arise. First, the phrase “a person who provides services to the public” in s. 43(5) includes but is broader than the phrase “Canadian carrier or distribution undertaking” found elsewhere in the section. Second, the phrase “constructed on a highway or other public place” qualifies the phrase “transmission line” and therefore, the CRTC may not grant access to transmission lines situated on private land. The utilities’ power poles sometimes stand on private land pursuant to public utility rights‑of‑way. Third, the subsection speaks of “transmission lines” rather than “distribution lines”. The utilities’ power poles support distribution lines, not transmission lines. Parliament should be taken to know this distinction. Had Parliament intended to submit the utilities’ power poles to the jurisdiction of the CRTC, it would have referred to distribution lines. Looking next to s. 43 as a whole, the CRTC’s interpretation of subs. (5) is at odds with the rest of the section. The phrase “transmission lines” may not be given a broader meaning in subs. (5) than occurs in the rest of the section. The absence of the phrase “Canadian carrier or distribution undertaking” in subs. (5) does not justify such a broader interpretation. The definition of “transmission facility” in s. 2 must also be taken into account. A transmission facility is defined as a facility for the transmission of “intelligence”. The utilities’ power poles do not serve to transmit intelligence. They serve to transmit electricity. One must conclude that the “transmission lines” referred to in s. 43(5) are the same as those constructed, maintained and operated pursuant to s. 43(2) to (4). They do not include the utilities’ power poles.
The CRTC’s heavy reliance on the policy objectives of the Telecommunications Act and the Broadcasting Act was in error. The consideration of legislative objectives is one aspect of the modern approach to statutory interpretation. Yet the CRTC relied on policy objectives to set aside Parliament’s discernible intent as revealed by the plain meaning of s. 43(5) , s. 43 generally and the Act as a whole.
Per Bastarache J. (dissenting): The constitutional question whether s. 43(5) , as construed by the CRTC, is ultra vires Parliament has been important at every level of this case. The CRTC canvassed the issue thoroughly in its reasons. The Federal Court of Appeal referred to the constitutional issue. The Chief Justice of this Court certified a constitutional question. The Federal Court of Appeal erred by failing to separate the constitutional question from the statutory interpretation question. Judicial review of the CRTC’s order requires a separation of that decision into two main questions. One is the constitutional question, which is whether any interpretation argued for s. 43(5) of the Act would make that provision ultra vires Parliament. The other is the more general question of the CRTC’s interpretation of s. 43(5) and exercise of its power in issuing its decision. Combining a constitutional question and a statutory interpretation question may skew the standard of review for an agency’s decision. In addition, where a constitutional question is raised, reviewing the agency’s ordinary statutory interpretation without isolating the constitutional question can limit the agency’s ability to give the legislation at issue the full import intended by the legislature. The Federal Court of Appeal did not rule on the constitutionality of the CRTC’s interpretation of s. 43(5) , but was clearly concerned by the possibility that it might be ultra vires. This concern was erroneous. According to the doctrine of the presumption of constitutionality, a statute should be presumed constitutional unless proven unconstitutional. Where a statute is ambiguous and more than one construction is possible, the presumption of constitutionality does not empower a decision maker to reject a plausible construction on the basis that it may be unconstitutional or that its unconstitutionality has been merely alleged. Before rejecting the CRTC’s interpretation of s. 43(5) , the Federal Court of Appeal should have ruled on the constitutional question.
It is settled law that application of the pragmatic and functional approach to a question of constitutional law will yield a correctness standard and therefore the CRTC’s constitutional determination is reviewable on that standard. However, in the present appeal, the main question was the appropriateness of the CRTC’s access order issued under s. 43(5) . The constitutional question was raised only as an attack on the CRTC’s order. If the allegation the provision is unconstitutional is meritless, the constitutional question should not serve nevertheless to dictate the level of scrutiny by the court reviewing the administrative decision.
Review of the administrative decision itself consists of two questions. The first is the CRTC’s interpretation of s. 43(5) . This is a question of law. The second is the appropriateness of the specific terms of the decision, which is a question of mixed law and fact. It is uncontroversial that the reviewing court owes the CRTC deference on the specific terms of an order and therefore the standard of review of the specific terms of the decision in question is reasonableness simpliciter.
The standard of review for the CRTC’s interpretation of s. 43(5) is also reasonableness simpliciter. While a statutory right of appeal suggests a more searching standard of review and militates against deference, it is necessary to consider the other factors before making the final determination of the degree of deference. Expertise is the most important of the factors that a court must consider in settling on a standard of review. Expertise is to be understood as a relative, not an absolute concept. The court is perhaps better positioned than the CRTC to interpret general legal terms of wide usage; however, the CRTC will have greater expertise vis‑à‑vis the reviewing court for technical and policy‑related matters, including determination of legal questions associated with the specialized statutes enabling the CRTC. The meaning of “the supporting structure of a transmission line” is a technical question best answered by the specialized agency in whose enabling legislation it arises. When its enabling legislation is in issue, a specialized agency will be better equipped than a court to interpret words in their entire context in harmony with the Act, the object of the Act, and the intention of Parliament. On even a purely legal question within its expertise, the CRTC is owed deference. The CRTC would have been significantly better positioned than the court to assess the alternatives and the consequences for the broader scheme of each possible interpretation of s. 43(5) . If knowledge of all the technical meanings of terms such as “transmission” and the factual situation of poles are relevant, the issue appears no longer to be a pure question of statutory interpretation. Instead, it is one deeply enmeshed in the context and the domain of the CRTC’s expertise. Therefore, determining the definition of “the supporting structure of a transmission line” falls squarely within the CRTC’s expertise. The purpose of the Act as a whole and the provision in particular also suggest substantial deference. The purpose of s. 43(5) , as evident from its inclusion with the other subsections of s. 43, is clearly to provide an alternative to the construction of new structures on public land. This suggests deference to the extent that the question is one best answered by the expert tribunal in appreciation of the real‑life consequences for other provisions in the statute. The nature of the problem suggests, at first blush, less deference. It is established, however, that even pure questions of law may be granted deference where other factors of the pragmatic and functional approach suggest that the legislature intends such deference.
Construing s. 43(5) so as to allow the CRTC to permit access to the poles of provincially regulated utilities would not render the provision ultra vires Parliament. The CRTC therefore decided correctly that this construction of s. 43(5) is constitutionally valid.
The CRTC’s interpretation of s. 43(5) stands up to scrutiny and is therefore reasonable. It is unnecessary to determine whether the CRTC’s contextual approach to “public place” is correct, but it is at least reasonable. Furthermore, the CRTC’s decision was supported by reasons that could stand up to a somewhat probing examination. Since the CRTC’s order was reasonable, the Federal Court of Appeal erred in allowing the appeal.
Cases Cited
By Gonthier J.
Applied: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; referred to: Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, 2001 SCC 36; British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42.
By Bastarache J. (dissenting)
Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322; U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Moreau‑Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Bell Canada v. Canada (Canadian Radio‑television and Telecommunications Commission), [1989] 1 S.C.R. 1722; British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739; Federation of Canadian Municipalities v. AT&T Canada Corp., [2002] F.C.J. No. 1777 (QL), 2002 FCA 500; Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793; Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, 2001 SCC 36; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Société Radio‑Canada v. Métromédia CMR Montréal Inc. (1999), 254 N.R. 266; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Ivanhoe inc. v. UFCW, Local 500, [2001] 2 S.C.R. 565, 2001 SCC 47; Sept‑Îles (City) v. Quebec (Labour Court), [2001] 2 S.C.R. 670, 2001 SCC 48; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; Toronto Catholic District School Board v. Ontario English Catholic Teachers’ Assn. (Toronto Elementary Unit) (2001), 55 O.R. (3d) 737, leave to appeal refused, [2002] 2 S.C.R. ix; Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571; University of British Columbia v. Berg, [1993] 2 S.C.R. 353; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3; Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569, 2002 SCC 17; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; R. v. Morgentaler, [1993] 3 S.C.R. 463; Attorney‑General for Alberta v. Attorney‑General for Canada, [1939] A.C. 117; Toronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52; Attorney‑General for British Columbia v. Canadian Pacific Railway Co., [1906] A.C. 204; City of Toronto v. Grand Trunk Railway Co. of Canada (1906), 37 S.C.R. 232; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Alberta Government Telephones v. Canada (Canadian Radio‑television and Telecommunications Commission), [1989] 2 S.C.R. 225; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Committee for the Equal Treatment of Asbestos Minority Shareholders v. Ontario (Securities Commission), [2001] 2 S.C.R. 132, 2001 SCC 37; Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31.
Statutes and Regulations Cited
Broadcasting Act, S.C. 1991, c. 11, ss. 2(1) “distribution undertaking”, 3.
Canadian Radio‑television and Telecommunications Commission Act, R.S.C. 1985, c. C‑22, s. 3(2) [rep. & sub. 1991, c. 11, s. 76], (3) [idem].
Constitution Act, 1867, s. 92(10) , (13) .
Interpretation Act, R.S.C. 1985, c. I‑21, s. 12 .
Telecommunications Act, S.C. 1993, c. 38, ss. 2(1) “Canadian carrier”, “transmission facility”, 7, 43, 44, 45, 52(1), 64(1).
Authors Cited
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Dyzenhaus, David. “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law. Oxford: Hart Publishing, 1997, 279.
Harvison Young, Alison. “Human Rights Tribunals and the Supreme Court of Canada: Reformulating Deference” (1993), 13 Admin. L.R. (2d) 206.
Hogg, Peter W. Constitutional Law of Canada, vol. 1, loose‑leaf ed. Scarborough, Ont.: Carswell, 1992 (updated 2002, release 1).
Macdonald, Roderick A. “On the Administration of Statutes” (1987), 12 Queen’s L.J. 488.
Ryder, Bruce. “Family Status, Sexuality and ‘The Province of the Judiciary’: The Implications of Mossop v. A.‑G. Canada” (1993), 13 Windsor Y.B. Access Just. 3.
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
APPEAL from a judgment of the Federal Court of Appeal, [2001] 4 F.C. 237, 202 D.L.R. (4th) 272, 273 N.R. 291, [2001] F.C.J. No. 1150 (QL), 2001 FCA 236, setting aside the Telecom Decision CRTC 99‑13. Appeal dismissed, Bastarache J. dissenting.
Neil Finkelstein and Catherine Beagan Flood, for the appellant.
Alan Mark and Peter Ruby, for the respondents.
Brian J. Saunders and Peter Southey, for the intervener the Attorney General of Canada.
Michel Y. Hélie, for the intervener the Attorney General of Ontario.
Alain Gingras, for the intervener the Attorney General of Quebec.
Gaétan Migneault, for the intervener the Attorney General of New Brunswick.
Cynthia Devine, for the intervener the Attorney General of Manitoba.
Nancy E. Brown, for the intervener the Attorney General of British Columbia.
Robert G. Richards, Q.C., for the intervener the Attorney General for Saskatchewan.
Roderick S. Wiltshire, for the intervener the Attorney General of Alberta.
Written submissions only by Robert G. Richards, Q.C., for the intervener the Saskatchewan Power Corporation.
Written submissions only by Christian S. Tacit, for the intervener the Federation of Canadian Municipalities.
Written submissions only by Seumas Woods and Charlotte Kanya‑Forstner, for the intervener GT Group Telecom Services Corp.
Written submissions only by Thomas G. Heintzman, Q.C., Susan L. Gratton and Genevieve Currie, for the interveners Aliant Telecom Inc., AT & T Canada, Bell Canada, Bell West Inc., MTS Communications Inc. and TELUS Communications Inc.
The judgment of McLachlin C.J. and Gonthier, Major, Arbour, LeBel and Deschamps JJ. was delivered by
1 Gonthier J. — The appellant, Canadian Cable Television Association (“CCTA”), seeks access to the power poles of the respondent power utilities (“Utilities”) for the purpose of supporting cable television transmission lines. In the past, the CCTA’s members have rented space from the Utilities under private contract. Since 1996, however, the parties have been unable to reach agreement. The CCTA sought and obtained an order from the Canadian Radio-television and Telecommunications Commission (“CRTC”) requiring the Utilities to grant it access to their power poles on terms stipulated by the CRTC. The Utilities successfully appealed this order before the Federal Court of Appeal. The CCTA now appeals that decision.
2 The CRTC purported to make its order against the Utilities pursuant to s. 43(5) of the Telecommunications Act, S.C. 1993, c. 38 (“Act ”). The Federal Court of Appeal held that s. 43(5) , properly interpreted, does not give the CRTC jurisdiction over the power poles of provincially regulated electric power companies such as the Utilities. I agree with this finding and would dismiss the appeal.
I. Facts
3 The members of the CCTA provide cable television services throughout Canada by means of cable transmission lines. In Ontario, these transmission lines are commonly carried on telephone and power poles. The CCTA claims to use over 300 000 power poles for this purpose in Ontario alone. By renting space on the poles of other providers, the CCTA avoids the expense, inconvenience and duplication of erecting its own poles.
4 The Utilities are provincially regulated electric power providers. The power poles by which they and other power utilities distribute electricity are a familiar sight throughout the country. In Ontario, the Utilities’ poles are erected on both public and private property. It is not disputed that the Utilities are subject to the legislative jurisdiction of the Province of Ontario.
5 In 1996 the parties began negotiating a new rental agreement to replace the one that would soon expire. The Utilities demanded an increase in the rental rate from $10.42 to $40.92 per pole. The CCTA refused and the existing rental agreement expired. On February 13, 1997, the CCTA applied to the CRTC for final and interim relief.
II. Procedural History
6 The CRTC issued Telecom Decision CRTC 99-13 on September 28, 1999. It found that s. 43(5) of the Act granted it authority over the Utilities’ power poles. In particular, the CRTC found that the phrase “the supporting structure of a transmission line”, read in context and in the light of telecommunications and broadcasting policy objectives, was broad enough to include the Utilities’ power poles. It ordered the Utilities to grant the CCTA access to their power poles at the annual rate of $15.89 per pole.
7 The Federal Court of Appeal granted leave to appeal the CRTC’s decision under s. 64(1) of the Act . Rothstein J.A. for the court allowed the appeal. He found that the CRTC’s decision was reviewable on a correctness standard. He agreed with the CCTA that “the supporting structure of a transmission line”, read literally and in isolation, was capable of bearing a broad enough meaning to include power poles. Read in the context of the section as a whole, however, such an interpretation was inconsistent and unworkable. Rothstein J.A. rejected the CRTC’s reliance on policy objectives to inform its interpretation of s. 43(5) , observing that the policies themselves do not confer jurisdiction on the CRTC and cannot be used as a basis for exercising a power the Act does not grant it.
III. Relevant Statutory Provisions
8 Telecommunications Act, S.C. 1993, c. 38
2. (1) In this Act ,
. . .
“Canadian carrier” means a telecommunications common carrier that is subject to the legislative authority of Parliament;
. . .
“transmission facility” means any wire, cable, radio, optical or other electromagnetic system, or any similar technical system, for the transmission of intelligence between network termination points, but does not include any exempt transmission apparatus.
43. (1) In this section and section 44, “distribution undertaking” has the same meaning as in subsection 2(1) of the Broadcasting Act .
(2) Subject to subsections (3) and (4) and section 44, a Canadian carrier or distribution undertaking may enter on and break up any highway or other public place for the purpose of constructing, maintaining or operating its transmission lines and may remain there for as long as is necessary for that purpose, but shall not unduly interfere with the public use and enjoyment of the highway or other public place.
(3) 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.
(4) Where a Canadian carrier or distribution undertaking cannot, on terms acceptable to it, obtain the consent of the municipality or other public authority to construct a transmission line, the carrier or distribution undertaking may apply to the Commission for permission to construct it and the Commission may, having due regard to the use and enjoyment of the highway or other public place by others, grant the permission subject to any conditions that the Commission determines.
(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.
45. On application by a municipality or other public authority, or by an owner of land, the Commission may authorize the construction of drainage works or the laying of utility pipes on, over, under or along a transmission line of a Canadian carrier or any lands used for the purposes of a transmission line, subject to any conditions that the Commission determines.
64. (1) An appeal from a decision of the Commission on any question of law or of jurisdiction may be brought in the Federal Court of Appeal with the leave of that Court.
Broadcasting Act, S.C. 1991, c. 11
2. (1) In this Act ,
. . .
“distribution undertaking” means an undertaking for the reception of broadcasting and the retransmission thereof by radio waves or other means of telecommunication to more than one permanent or temporary residence or dwelling unit or to another such undertaking;
IV. Analysis
A. Standard of Review
9 I agree with the Federal Court of Appeal that correctness is the appropriate standard of review in this case.
10 As is well known, Canadian courts take a pragmatic and functional approach to the review of administrative decisions. The leading statement on determining the applicable standard of review within the pragmatic and functional approach is found in the reasons of Bastarache J. in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; see also Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19. Bastarache J. identified four factors to be taken into account: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing judge on the issue in question; (3) the purposes of the legislation and the provision in particular; and (4) the nature of the problem.
(1) Privative Clauses and Statutory Rights of Appeal
11 Section 64(1) of the Act grants a right of appeal in the following terms:
An appeal from a decision of the Commission on any question of law or of jurisdiction may be brought in the Federal Court of Appeal with the leave of that Court.
While the presence of a statutory right of appeal is not decisive of a correctness standard (Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, 2001 SCC 36, at para. 27), it is a factor suggesting a more searching standard of review (Pushpanathan, supra, at para. 30).
(2) Relative Expertise
12 The proper concern of the reviewing court is not the expertise of the decision maker in general, but its expertise relative to that of the court itself vis‑à‑vis the particular issue (Pushpanathan, at para. 33). The reviewing court must also bear in mind that in determining the standard of review, the focus of the inquiry is on the particular provision being invoked and interpreted by the tribunal; some provisions within the same Act may require greater curial deference than others (Pushpanathan, at para. 28).
13 These points are illustrated by L’Heureux-Dubé J.’s discussion of the standard of review in British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739. There, L’Heureux-Dubé J. aptly described the CRTC as “a specialized administrative tribunal . . . which possesses considerable expertise over the subject matter of its jurisdiction” yet found that it was reviewable on a correctness standard “as regards jurisdictional questions and questions of law outside the CRTC’s area of expertise” (paras. 30-31). To ascertain the CRTC’s relative expertise for the purpose of this appeal, I must consider the particular provision at issue and the nature of the CRTC’s expertise.
14 The provision at issue is s. 43(5) . More particularly, the question before the Court in this appeal is whether the phrase “the supporting structure of a transmission line” in s. 43(5) includes the Utilities’ power poles. This phrase has no technical meaning beyond the ken of a reviewing court. Indeed, it appears to have no stand-alone meaning at all, but only the meaning given to it by the Act itself. In short, we are faced with a question of statutory interpretation.
15 The CRTC’s expertise lies in the regulation and supervision of Canadian broadcasting and telecommunications. In particular, the CRTC is charged with the implementation of Canada’s telecommunications policy as enunciated in s. 7 of the Act .
16 Deference to the decision maker is called for only when it is in some way more expert than the court and the question under consideration is one that falls within the scope of its greater expertise (Dr. Q, at para. 28). In my view, this is not such a case. The proper interpretation of the phrase “the supporting structure of a transmission line” in s. 43(5) is not a question that engages the CRTC’s special expertise in the regulation and supervision of Canadian broadcasting and telecommunications. This is not a question of telecommunications policy, or one which requires an understanding of technical language. Rather, it is a purely legal question and is therefore, in the words of La Forest J., “ultimately within the province of the judiciary” (Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, at para. 28). This Court’s expertise in matters of pure statutory interpretation is superior to that of the CRTC. This factor suggests a less deferential approach.
(3) Purposes of the Legislation and Provision
17 Much of the CRTC’s work involves the elaboration and implementation of telecommunications policy. I consider the policy objectives of the Act below. I note, however, that this policy function is much less in evidence in s. 43(5) than elsewhere in the Act . Rather, s. 43(5) accords the CRTC the essentially adjudicative role of considering applications from, and providing redress to, public service providers who cannot gain access to the supporting structure of a transmission line on terms acceptable to them. The proper interpretation of s. 43(5) at issue in this case is not a “polycentric” question. It is a question of whether s. 43(5) , properly construed, gives the CRTC jurisdiction to hear the parties’ dispute. Again, this factor points to a less deferential standard of review.
(4) Nature of the Problem
18 As I noted in my consideration of relative expertise, above, the problem before us is a purely legal one: what did Parliament intend by the phrase “the supporting structure of a transmission line”? This is a question of general importance to the telecommunications and electricity industries. I note Bastarache J.’s observation in Pushpanathan (at para. 37) that even pure questions of law may be granted a wide degree of deference where other factors suggest the legislature so intended. That is not the case here.
19 Applying the pragmatic and functional approach to the circumstances of this appeal, I conclude that all four factors point to a correctness standard of review. This is therefore not a case calling for deference to the decision of the CRTC on this issue.
B. The Meaning of Section 43(5)
(1) The Modern Approach
20 The starting point for statutory interpretation in Canada is E. A. Driedger’s definitive formulation in his Construction of Statutes (2nd ed. 1983), at p. 87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament.
In the case of federal legislation such as the Act in question, this modern approach to statutory interpretation is confirmed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21 , which provides that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects” (see Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26, per Iacobucci J.).
(2) The Grammatical and Ordinary Meaning of Section 43(5)
21 The disputed subsection reads as follows:
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.
Lorsqu’il ne peut, à des conditions qui lui sont acceptables, avoir accès à la structure de soutien d'une ligne de transmission construite sur une voie publique ou un autre lieu public, le fournisseur de services au public peut demander au Conseil le droit d'y accéder en vue de la fourniture de ces services; le Conseil peut assortir l'autorisation des conditions qu'il juge indiquées.
In my view, there is no important difference between the English and French versions. Nor have the parties suggested otherwise.
22 Looking for the moment at the subsection alone, in its grammatical and ordinary meaning, three points arise.
23 First, it is clear that the phrase “a person who provides services to the public” in s. 43(5) includes, but is broader than, the phrase “Canadian carrier or distribution undertaking” found elsewhere in the section. Any provider of services to the public, it seems, may apply to the CRTC to gain access to the supporting structure of a transmission line constructed on a highway or other public place.
24 Second, the phrase “constructed on a highway or other public place” qualifies the phrase “transmission line”. Therefore, on the grammatical and ordinary meaning of the provision, the CRTC may not grant access to transmission lines situated on private land. In its decision, the CRTC found otherwise, saying that the contextual approach to statutory interpretation requires the interpreter to presume that Parliament knew that some support structures — not those constructed pursuant to s. 43, but others such as those owned by the Utilities — are located on public utility rights-of-way. This conclusion begs the question, for it assumes that “transmission line” includes the Utilities’ power poles. If we refrain from that assumption, the grammatical and ordinary meaning of s. 43(5) is that the CRTC may not grant access to supporting structures located on private land.
25 Third, the phrase used in s. 43(5) and throughout s. 43 is “transmission line”. The Utilities submit that a transmission line is to be distinguished from a distribution line. A transmission line carries electricity over large distances with minimum losses. A distribution line carries less than 50kV of electricity over short distances. The power poles to which the CCTA seeks access are not transmission lines but distribution lines. Parliament, say the Utilities, must be taken to have known of this distinction. Had Parliament intended to submit the Utilities’ power poles to the jurisdiction of the CRTC by means of s. 43(5), it would have employed the phrase “distribution line”.
26 In the Court of Appeal, Rothstein J.A. was of the view that the phrase “transmission line”, read literally a