Supreme Court of Canada

Saskatchewan Power Corporation et al. v. TransCanada Pipelines Ltd. et al., [1981] 2 S.C.R. 688

Date: 1981-12-17

Saskatchewan Power Corporation and Many Islands Pipe Lines Limited Appellants;

and

TransCanada Pipelines Limited and The National Energy Board Respondents;

and

The Attorney General of Canada, the Attorney General of Quebec, the Attorney General of British Columbia, the Attorney General for Alberta, the Attorney General for Saskatchewan and the Attorney General of Newfoundland Interveners.

1981: November 5; 1981: December 17.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Jurisdiction—Powers and jurisdiction of the National Energy Board under ss. 50, 53 and 61 of the National Energy Board Act—Whether Board interfered with contract price for sale of gas—Whether Board exceeded its powers—National Energy Board Act, R.S.C. 1970, c. N-6 as amended, ss. 2, 50, 51, 52, 53, 61.

Respondent TransCanada, a pipeline company within the meaning of the National Energy Board Act, is engaged in the interprovincial transmission of gas. In 1969, it entered into a contract with appellants providing for a right to delivery of gas to the appellants for a fixed period at a price of 23.5 cents per M.C.F. On respondent’s application for the fixing of just and reasonable rates or tolls for transportation services under ss. 50 and 53 of the Act, the Board ordered the Imputed Alberta Border Price be substituted for the contractual sale price of the gas. The issue was whether the National Energy Board Act conferred upon the Board any jurisdiction to alter the terms of a contract.

Held: The appeal should be allowed.

The Board exceeded its authority in purporting to substitute the Imputed Alberta Border Price for that fixed by the contract between the parties. The only power of the Board on an application under s. 50 to deal with price is to do so incidental to the fixing of transportation tolls, and this is so even under s. 61. Under s. 53 the Board could disallow and disregard the contract as

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tariff of tolls and could prescribe the appropriate tolls when it considered that such a tariff was contrary to the Act. In the present case, however, as the contract did not purport to be a tariff and to fix tolls for transportation of gas, s. 61 applied. But the result of its application was that there was nothing that could be regarded as a toll. The Board’s authority was spent. The Act authorized no further interference by the Board with the terms of the contract.

Saskatchewan Power Corp. v. TransCanada Pipelines Ltd., [1979] 1 S.C.R. 297; Northern and Central Gas Corporation Ltd. v. National Energy Board and TransCanada Pipe Lines Ltd., [1971] F.C. 149, referred to.

APPEAL from a judgment of the Federal Court of Appeal[^1], dismissing an appeal from a National Energy Board decision. Appeal allowed.

Gordon F. Henderson, Q.C., Maurice J. Sychuk, Q.C., and Emilio S. Binavince, for the appellants.

George D. Finlayson, Q.C., and Joan H. Francis, Q.C., for the respondent TransCanada Pipelines Ltd.

T.B. Smith, Q.C., and P.G. Griffin, for the respondent the National Energy Board and the intervener the Attorney General of Canada.

Jean-K. Samson and Odette Laverdière, for the intervener the Attorney General of Quebec.

W.G. Burke-Robertson, Q.C., and Howard R. Eddy, for the intervener the Attorney General of British Columbia.

Y.A. George Hynna, for the intervener the Attorney General for Saskatchewan.

Lloyd Nelson, for the intervener the Attorney General for Alberta.

James A. Nesbitt, Q.C., for the intervener the Attorney General of Newfoundland.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This appeal, which is here by leave, from a unanimous judgment of the Federal Court of Appeal raises an important ques-

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tion of the powers and jurisdiction of the National Energy Board under ss. 50, 53 and 61 of the National Energy Board Act, R.S.C. 1970, c. N-6, as amended. Those powers were invoked by the respondent TransCanada Pipelines Limited and resulted in a decision embodied in its Order TG-1-76. The appellants Saskatchewan Power Corporation and Many Islands Pipe Lines Limited, adversely affected by the Order, appealed to the Federal Court of Appeal under s. 18(1) of the Act. Although that Court dismissed the appeal, each of the three members, Thurlow C.J., Pratte J. and Kerr D.J., did so for different reasons. Those of Thurlow C.J. would have satisfied the appellants because he struck out a part of the Board’s Order (to which the appellants objected) as going beyond its jurisdiction; the appellants had no complaint with what was left. The reasons of the other two members of the Court confirmed the whole of the Board’s Order and hence affirmed the exercise of jurisdiction reflected in the Order.

Constitutional issues were also raised in this appeal if it should turn out that the jurisdiction exercised by the Board was within its authority under ss. 50, 53 and 61 aforementioned. This Court did not hear the parties or the various intervenors on the constitutional issues, deciding to postpone them until it came to a conclusion on the question of the Board’s challenged jurisdiction. Of course, if it should be the case that the Board, in its Order, went beyond the authority under which it acted, it would be unnecessary to examine the constitutional questions posed in this appeal.

The relevant legislation governing this appeal is as follows:

50. The Board may make orders with respect to all matters relating to traffic, tolls or tariffs.

51. (1) A company shall not charge any tolls except tolls specified in a tariff that has been filed with the Board and is in effect.

(2) Where the gas transmitted by a company through its pipeline is the property of the company, the company shall file with the Board, upon the making thereof, true copies of all the contracts it may make for the sale of

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gas and amendments from time to time made thereto, and the true copies so filed shall be deemed, for the purposes of this Part, to constitute a tariff pursuant to subsection (1).

52. All tolls shall be just and reasonable, and shall always, under substantially similar circumstances and conditions with respect to all traffic of the same description carried over the same route, be charged equally to all persons at the same rate.

53. The Board may disallow any tariff or any portion thereof that it considers to be contrary to any of the provisions of this Act or to any order of the Board, and may require a company, within a prescribed time, to substitute a tariff satisfactory to the Board in lieu thereof, or may prescribe other tariffs in lieu of the tariff or portion thereof so disallowed.

54. Where the gas transmitted by a company through its pipeline is the property of the company, the differential between the cost to the company of the gas at the point where it enters its pipeline and the amount for which the gas is sold by the company shall, for the purposes of this Part, be deemed to be a toll charged by the company to the purchaser for the transmission thereof.

The term “toll” found in ss. 50, 51, 52 and 61 is defined in s. 2 in these words:

“toll” includes any toll, rate, charge or allowance charged or made for the shipment, transportation, transmission, care, handling or delivery of hydrocarbons, or for storage or demurrage or the like.

Neither the word “traffic” nor the word “tariff” is defined in the Act.

The respondent TransCanada is a pipeline company engaged in the interprovincial transmission of gas and as such is within the applicable provisions of the National Energy Board Act and subject to the powers of the National Energy Board. It had entered into a contract in 1969 with the appellants for the sale and delivery of gas between them. There were two phases to the contract. Under the first, the appellants were to sell and deliver gas to the respondent over yearly periods between November 1, 1969 and 1974 at a specified price, averaging 23.5 cents per M.C.F. Under the second

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phase, the respondent agreed to sell and deliver to the appellants an equal volume of gas at the price of 23.5 cents per M.C.F. in the period November 1, 1974 to October 31, 1981 on the nomination of the appellants. This contract was the subject of litigation in this Court: Saskatchewan Power Corp. v. TransCanada Pipelines Ltd.[^2] The Court was concerned in that case with whether the contract was one that was required to be filed with the Board and whether it provided for an exchange of gas between the parties or was rather a contract under which the appellants here had the option of electing to buy gas, in which case upon its exercise, a contract of sale would come into being. This Court affirmed the Board and the Federal Court of Appeal which held that the contract had to be filed and also decided that the contract gave an option or the right to nominate gas at the discretion of the appellants and that it did not envisage an exchange. Only a narrow constitutional issue was considered by this Court upon which it said this (at p. 308):

In my opinion, Parliament had the power to provide for the tolls and tariffs to be applied in connection with the transmission of gas through an interprovincial pipeline and had the power to require a pipeline company to file with it copies of its contracts for the sale of gas, which would be deemed to constitute a tariff. Those are the only constitutional issues involved in the present proceedings.

The appellants exercised their option or made their nomination pursuant to the contract. This case is concerned with the nomination of a total volume of 17 million M.C.F., being the consolidated volume of gas nominated as of August 6, 1975.

The contract between the parties did not contain any provision as to the cost of transportation. (It was accepted in this appeal that it would be for the appellants as buyers to pay that cost.) On July 16, 1976 TransCanada applied to the Board under ss. 50 and 53 of the Board’s Act for orders fixing “the just and reasonable rates or tolls” (to use the words of the Board in its reasons and Order) that

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the applicant could charge for transportation services to the appellant Saskatchewan Power Corporation and to certain other companies not involved in this appeal. The applicant also applied under s. 53 of the Petroleum Administration Act, 1974-75-76 (Can.), c. 47, and regulations thereunder for special and general orders of the Board approving the price to be paid by the applicant to acquire gas for removal from Alberta. However, the Board ruled that this application under the Petroleum Administration Act would not be considered in the application to fix rates or tolls but would be dealt with as a separate matter. Notwithstanding this, Kerr D.J. based his reasons largely on the Petroleum Administration Act, a strange reliance when the Board rejected that Act as having any application to the fixing of just and reasonable rates or tolls for transportation or transmission of gas. In my opinion, therefore, the reasons of Kerr D.J. are of no help in coming to a determination on the specific issues in this case arising from the application of TransCanada under ss. 50 and 53 of the National Energy Board Act.

Counsel for the appellants pointed out that the application under ss. 50 and 53 also asked for disallowance of the sale price set out in the contract for the 17 million M.C.F. of gas and the substitution therefor of the Saskatchewan Zone CD rate proposed in the application. The crucial issue in this appeal is whether the Board did interfere with the contract price for the sale of the nominated gas, as part of or in connection with its prescription of transportation tolls, and, if so, whether this was within its statutory authority.

TransCanada’s application was under Part IV of the National Energy Board Act purporting to deal with “Traffic, Tolls and Tariffs”. The authority and power of the Board to fix the transmission or transportation toll for the nominated gas is not in dispute. What is alleged here is that the Board

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went beyond this by altering the 23.5 cents M.C.F. contract price and substituting what is known as the Imputed Alberta Border price, being 105.228 cents per MMBtu. This was the price established under the Alberta Natural Gas Canadian Pricing Order, SOR/76-60 of December 31, 1975 which, as amended, set a price of 105.228 cents per MMBtu, for the period commencing January 1, 1977, for the transmission of Alberta gas outside the Province. TransCanada was fixed with this price as its costs of gas as at the Alberta border. In the present case, it demanded this price from the appellants (which was paid under protest in order to get the gas) notwithstanding the contract price of 23.5 cents per M.C.F. and notwithstanding the fact that the nomination of the gas by the appellants was made or its sale effected before the Imputed Alberta Border price above-mentioned was fixed.

In its reasons for its decision, the Board declared that in its view “the substance of the dispute between TransCanada and SPC relates to the price at which gas will be sold to SPC under Article XVII of the Contract”: Case on Appeal, vol. 2, at p. 358. This view was reflected in its earlier reference to s. 61 of the National Energy Board Act as being the governing provision where a company such as TransCanada transmitted gas which was its own property through its pipeline. In such case, s. 61 provides

…the differential between the cost to the company of the gas at the point where it enters its pipeline and the amount for which the gas is sold by the company shall, for the purposes of this part, be deemed to be a toll charged by the company to the purchaser for the transmission thereof.

The Board had also noted earlier that the gas to be sold by TransCanada through its pipeline from Empress, Alberta, would move 85 miles to the point of delivery at Success, Saskatchewan. It then went on to apply s. 61, as follows:

On the basis of this section, the price stipulated in the Contract of 23.25 cents per Mcf, and the cost to TransCanada of the gas at the Alberta border of 105.228

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cents per MMBtu (or per Mcf at 1000 Btu heating value), the deemed transportation toll under section 61 is equal to a negative toll of 81.98 cents per Mcf.

Sections 52 and 55 of the Act provide:

“52. All tolls shall be just and reasonable and shall always, under substantially similar circumstances and conditions with respect to all traffic of the same description carried over the same route, be charged equally to all persons at the same rate.”

“55. A company shall not make any unjust discrimination in tolls, service or facilities against any person or locality.”

The Act does not prescribe what constitutes just and reasonable tolls, nor the method by which the Board is to determine just and reasonable rates. The Act does, however, require that under substantially similar circumstances and conditions, tolls shall be charged equally to all persons at the same rate for traffic of the same description carried over the same route, and that the company shall not make any unjust discrimination in tolls, services or facilities against any person or locality.

On the evidence adduced, there is nothing, other than the distance that the gas moves through the pipeline, which differentiates the transportation service provided for the gas to be sold to SPC, from the transportation services provided for any other gas sold by TransCanada on its pipeline system. Accordingly, the only circumstances and conditions which might be substantially dissimilar so as to negate the statutory requirement of equality, must, in this situation, be circumstances and conditions relating to the Contract itself.

The Board concluded its reasons in these words:

In view of the various factors considered in the earlier sections of these Reasons, the Board finds that a just and reasonable transportation toll in respect of the gas to be sold to SPC in the test year under the Contract, would be the Saskatchewan Zone CD rate set out in Schedule A to Order No. TG-1-76, which rate is applicable to all volumes of gas sold by TransCanada to SPC in the Saskatchewan Zone.

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The relevant portion of the Board’s Order TG-1-76 is in these words:

IT IS ORDERED THAT:

1. The Applicant shall charge in respect of gas sold by it in Canada and in respect of its T-Service and Transportation Service, the rates and tolls specified in Schedule A hereto.

2. The Applicant’s proposed tariff amendments in respect of its General Terms and Conditions, its Rate Schedules, and its Transportation contracts, all as more particularly set forth under Tabs 1 to 7 inclusive under the heading “Tariff” in the said application, and as set forth in Exhibit No. 54 filed at the hearing of the said application, be and the same are hereby approved.

3. The Applicant’s proposed tariff amendments to its Rate Schedules and its Transportation Contracts, all as more particularly set forth in Exhibit No. 55 filed at the hearing of the said application, be and the same are hereby disallowed.

AND IT IS FURTHER ORDERED THAT:

4. The Applicant shall forthwith file with the Board and serve upon all parties to the hearing of this application, new tariffs, tolls and rates conforming with this Order.

Schedule A referred to in Article 1 of the Order is, in its only relevant portion, as follows:

TRANSCANADA PIPELINES LIMITED

RATES AND TOLLS FOR CANADIAN SALES, TRANSPORTATION & T-SERVICE

EFFECTIVE: 1 January 1977

Particulars

Rate/ Schedule

Transportation Demand Rate ($/Mcf/Mo)

Transportation Commodity Rate (¢/Mcf)

Imputed Alberta Border Price (¢/MMBtu)

Sales Service Saskatchewan Zone

CD

0.711

0.975

105.228

AOI

3.313

105.228

SGS

6.819

105.228

PS

160.000

105.228

TWS

35.000

105.228

The appellants do not object to the two transportation charges referable to Saskatchewan Zone CD. It is the Imputed Alberta Border Price which is at the root of their appeal. The Board’s reasons reproduced above, take the Imputed Alberta

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Border Price as establishing, under s. 61, a negative transportation toll as an offset from the contract price of 23.5 cents per M.C.F. (the Board’s figure in its reasons was 23.25 cents) so as to leave a negative toll of 81.98 cents per M.C.F. (on the Board’s figures). It is far from clear to me that s. 61 provides for a negative transportation toll; its terms envisage rather that the cost of gas to the pipeline supplier will be less than the amount payable by the purchaser and thus give rise to a deemed toll. The artificiality of a negative toll was pointed out by Thurlow C.J. in his reasons; in a case where the cost of gas exceeds the contract supply price the result is more properly characterized as zero. I need not be troubled by this here, however, because it is conceded that the Imputed Alberta Border Price had been fixed by the Board as the price to be paid by the appellants for their nominated gas.

Chief Justice Thurlow, in his extensive reasons, agreed with the submission of counsel for the appellants that the Imputed Alberta Border Price was not a rate or toll for the transportation of gas; rather, in his words, “it is the value or price, or part of the price to be paid for the gas”: at p. 196. After examining ss. 50 to 54 and s. 61 of the Board’s Act, he found that it had no authority to apply the Imputed Alberta Border Price to the nominated gas. His reasons were as follows [at pp. 197 et seq.]:

In my opinion these provisions are concerned entirely with the rates or tolls to be charged by a carrier in respect of the transportation of oil and gas. The rates and tolls are in respect of the transportation of gas and oil in international and interprovincial trade and what the Board may prescribe under sections 50 and 53 are the rates and tolls for such transportation. That, I think, becomes apparent from a perusal of the statute and, particularly Part IV, as a whole. There is no requirement that the price at which gas or oil is sold shall be just or reasonable or that it be charged equally to all persons at the same rate. Nor is there any authority given to the Board by these provisions to prescribe or interfere with the price at which oil or gas is to be sold beyond what may be involved in requiring the carrier to

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charge the appropriate transportation tolls prescribed by the Board. On the other hand, the fact that parties have contracted for the sale of gas at a price to be paid for it at the point where it is to be delivered, with no reference in the contract to any portion of the price being a transportation toll, cannot deprive the Board of its undoubted authority under section 53 to disallow the tariff of transportation tolls represented by the contract, to require the carrier to substitute a tariff satisfactory to the Board and to prescribe a tariff of tolls for the transportation of the gas which is the subject matter of the contract in place of the tariff that has been disallowed.

In the present case the contract contained no provision allocating any portion of the 23.500 per M.C.F. as a toll for the transportation of the gas and as on the material before the Board the cost of the gas to Trans-Canada was much more than 23,500 per M.C.F., the result of the application of section 61 was that the toll to be charged was zero. In my view, it was within the authority of the Board under section 53 to disallow and disregard the contract as a tariff of tolls when it considered, as it did, that such a tariff was contrary to provisions of the Act requiring that tolls be just and reasonable and be charged, under substantially similar circumstances and conditions with respect to traffic over the same route, equally to all persons at the same rate.

It was also within the authority of the Board to prescribe the appropriate tolls for the transportation of the gas referred to in the contract and to require the carrier to file a tariff satisfactory to the Board.

However, in my opinion, having disallowed the contract as a tariff, the Board’s authority with respect to it and the effect of section 61 were spent. The contract had been filed under subsection 51(2). The filed copies thereupon were deemed to be a tariff. As the contract did not in fact purport to be a tariff and to fix tolls for transportation of gas, section 61 applied. But the result of its application was that there was nothing that could be regarded as a toll. The Board thereupon disallowed the contract as a tariff and prescribed what it regarded as appropriate tolls. Nothing in the Act, as I read it, authorized any further interference by the Board with the terms of the contract. Nor is there any further provision of the Act which affects or changes it. Moreover, the structure and purpose of section 61, in my view, do not lend themselves to an interpretation which would enable the Board, by the exercise of its power under section 50 to make orders respecting tariffs and tolls, to require that a price be charged for gas sold by TransCanada that would be high enough to recover the

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acquisition cost of the gas plus the transportation tolls so that the difference between that selling price and the cost of the gas could be deemed to be a toll. And in any event, the Imputed Alberta Border Price is not, as I understand it, the cost to TransCanada PipeLines of the gas at the point where it enters TransCanada’s pipeline, within the meaning of section 61, but is simply a figure arrived at by a mathematical formula devised for the purposes of the Natural Gas Prices Regulations.

What Chief Justice Thurlow emphasized by the sentence last quoted was that s. 61 could not be used to support the Imputed Alberta Border Price as a basis for determining a transportation toll when it bore no relation to the cost of gas by which to measure the toll.

In the result, Thurlow C.J. thought it appropriate to modify paragraph 1 of the Board’s Order by inserting the word “transportation” before the words “rates and tolls” and the words “for transportation” before the word “conforming” in paragraph 4 of the Board’s Order. What was more important in his reasons was his denial of any effect to the Imputed Alberta Border Price; in effect, he excised it from Schedule A to the Board’s Order.

Pratte J. took a different view and upheld the Board’s Order both as to transportation tolls and as to price. After referring to ss. 51(2), 60 and 61 of the Act, he expressed himself as follows [at p. 206]:

As I read them, those provisions were enacted on the assumption that gas pipelines could normally be operated in two ways. First, a gas pipeline company could act merely as a carrier who, for a remuneration, transports his customers’ goods. That is the method of operation contemplated in the provisions of Part IV which apply to both gas and oil pipelines. The second method of operating a gas pipeline is referred to in subsection 51(2) and sections 60 and 61, which all contemplate that the gas pipeline company will operate its undertaking by transmitting and selling its own gas. When a gas pipeline is operated in this manner, section 61 provides that:

the differential between the cost to the company of the gas at the point where it enters its pipeline and the amount for which the gas is sold by the company shall, for the purposes of this Part, be deemed to be a

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toll charged by the company to the purchaser for the transmission thereof.

The effect of that section, which deems the “differential” to which it refers to be a toll charged for the transmission of gas, is to confer on the Board the same powers with respect to that differential as those possessed by the Board in relation to mere transportation tolls. As the Board may disallow a tariff specifying unreasonable tolls and prescribe tolls that it considers to be just and reasonable, it may, in the same manner, disallow a contract for the sale of gas entered into by a pipeline company and prescribe the “differential” that must exist between the cost of the gas to the company and the price for which it is sold.

This being my interpretation of section 61, it follows that, in my view, that section clearly empowers the Board to prescribe, in the circumstances contemplated by section 61, the price at which gas may be sold by a pipeline company. For that reason, I do not find merit in the appellants’ first submission that the Board exceeded the powers conferred on it by the statute in making the order here in question.

I say, with respect, that I cannot accept Pratte J.’s view of s. 61. Special as that provision is, it is still a provision in Part IV and subject to the limitation of the Board’s authority to fix transportation tolls. I take the view that I regard as that taken by Gibson J. in Northern and Central Gas Corp. Ltd. v. National Energy Board and TransCanada Pipe Lines Ltd.[^3] at p. 167 that the only power of the Board on an application under s. 50 to deal with price is to do so incidental to the fixing of transportation tolls, and this is so even under s. 61.

In my view, subject to two further observations, the reasons of Thurlow C.J. are compelling and should be followed here. The two observations that I would add concern a submission by counsel for the respondent TransCanada and a submission made by counsel for the National Energy Board. Counsel for the respondent dwelt upon the Petroleum Administration Act, although the Act was excluded by the Board from its consideration, and insisted that the appellants would have to meet the Imputed Alberta Border Price if they

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were to obtain across border gas. That may well be so but it is hardly a reason for expanding the jurisdiction of the Board under the application made by the respondent in the present case. There is no common law or equity applicable to the exercise of jurisdiction by a statutory tribunal unless they arise from the terms of the enactment which give it its authority. There is nothing here that, in my view, gives the Board overall price fixing authority in connection with the fixing of transportation tolls.

Counsel for the Board, speaking to its jurisdiction, contended that the word “tariff” was a broader term than “toll”, that the contract here constituted a tariff and that the Board had price fixing powers associated with its toll function. In short, he supported the reasons of Pratte J. I do not agree with this submission. It can hardly be said that the proposed price fixing here was incidental to the fixing of transportation tolls when it was independent of the toll. This was not a case of varying the contract to allow for a toll, something which was within the Board’s powers if limited according to s. 61; the Board’s order went far beyond this. Nor can I agree with the scope that counsel would give to the word “tariff”. If I understand his argument, it is that “tariff” encompasses price fixing and, further, permits the Board to act outside the prescriptions of Part IV and, particularly, outside of the limitations of the relevant provisions of that Part that confine the Board’s powers to the fixing of transportation rates or tolls. Section 51, as I read it, denies the large effect that counsel would give to the word “tariff”. Thurlow C.J., in his reasons, pointing out that the word “tariff” is not defined, stated that, in the context in which it is found in Part IV of the Act, it means simply a list of tolls or rates.

I should add that the Board’s Order in this case, referring therein to Exhibits 54 and 55, would seem to support the view that “tariffs”, in the context of s. 50 of the National Energy Board Act, envisages a list of transportation tolls. The exhibits

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clearly so indicate in dealing with demand and commodity charges, terms used in Schedule A to the Board’s Order.

The words “traffic, tolls or tariffs”, in s. 50 are well known terms in railway legislation. There, too, there appears to be no definition of “tariffs”. Coyne’s Railway Law of Canada (1947), at p. 431, referring to s. 323 of the Railway Act, as it then stood, quoted its specification of a “tariff of tolls” and added by way of comment that “no definition of ‘tariff’ is given in the Act. It has been sometimes defined as ‘a schedule of rates together with rules and regulations’.” The present Railway Act, R.S.C. 1970, c. R-2, also speaks in ss. 268 to 270 of “tariffs of tolls”. In the context of s. 50 of the National Energy Board Act there must be, of course, a limitation to transportation tolls.

It follows from the foregoing that the Board exceeded its authority in purporting to substitute the Imputed Alberta Border Price for that fixed by the contract between the parties. It was entitled to make a variation for the purpose of fixing transportation charges but not to establish a new contract price for the gas as a commodity. The appeal should therefore be allowed on this ground and it is hence unnecessary to consider the constitutional issues which arise only if the Board had acted here within its statutory authority.

The appellants should have their costs throughout. There will be no costs against the Board.

Appeal allowed with costs. No costs against the Board.

Solicitors for the appellants: Gowling & Henderson, Ottawa.

Solicitors for the respondent TransCanada Pipelines Ltd.: McCarthy & McCarthy, Toronto.

Solicitor for the respondent the National Energy Board: Philip G. Griffin, Ottawa.

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Solicitor for the intervener the Attorney General of Canada: R. Tassé, Ottawa,

Solicitors for the intervener the Attorney General of Québec: Jean-K. Samson and Odette Laverdière, Quebec.

Solicitor for the intervener the Attorney General of British Columbia: Howard R. Eddy, Victoria.

Solicitors for the intervener the Attorney General for Saskatchewan: Gowling & Henderson, Ottawa.

Solicitor for the intervener the Attorney General for Alberta: R.W. Painsley, Edmonton.

Solicitor for the intervener the Attorney General of Newfoundland: Ronald G. Penney, St. John’s.

[^1]: [1981] F.C. 192.

[^2]: [1979] 1 S.C.R. 297.

[^3]: [1971] F.C. 149.