Canada (Dir. of Investigation) v. NFLD. Telephone, [1987] 2 S.C.R. 466

Director of Investigation and Research under the Combines Investigation Act Appellant (Intervener)

v.

Newfoundland Telephone Company Limited Respondent (Applicant)

and

Newfoundland Board of Commissioners of Public Utilities Respondent

indexed as: canada (director of investigation and research under the combines investigation act) v. newfoundland telephone co.

File No.: 18880.

1986: May 29; 1987: November 19.

Present: Beetz, McIntyre, Lamer, Wilson and Le Dain JJ.

on appeal from the court of appeal for newfoundland

Administrative law ‑‑ Intervention in proceedings before administrative tribunal ‑‑ Whether public officer whose office is created by statute requires statutory authority to intervene before administrative tribunal with permission of tribunal ‑‑ Authority of tribunal to permit intervention ‑‑ Competition Act, S.C. 1986, c. 26, ss. 97 (formerly Combines Investigation Act, R.S.C. 1970, c. C‑23, s. 27.1, ad. 1974‑75‑76, c. 76, s. 9), 98 ‑‑ Public Utilities Act, R.S.N. 1970, c. 322, ss. 14, 18, 23(g), 40, 60, 73, 81, 96 (as am. 1975‑76, No. 56, s. 9), 113(2).

The Newfoundland Board of Commissioners of Public Utilities permitted the Director of Investigation and Research to intervene in the hearing of an application by the Newfoundland Telephone Co. despite the Company's objection that the Director lacked the statutory authority to intervene before a provincial board and that his appearance was not relevant to the Company's application. The Director's standing as an intervener was recognized on the understanding that he would confine his representations and evidence to the issue before the Board.

The Court of Appeal unanimously allowed the Company's appeal. At issue here were: (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 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 approval of an extension of its service.

Held: The appeal should be dismissed.

A public officer 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. Such an action, although it does not have regulatory effects, may have consequences for the rights, obligations or interests of others. It is an assertion, in an adjudicative context, of the authority and expertise of a public official. In such a case, a public officer puts the weight of his opinion and knowledge, acquired in the exercise of his official duties, on the adjudicative scales. He extends, on his own initiative, the effective reach and influence of his office and authority with potential direct legal effect. Whether he should have the power or right to do so is a matter of legislative policy and thus of statutory authority.

There is no meaningful distinction to be drawn here between authority and capacity. Everything that a public officer, whose office has been created and defined by statute, does in his official capacity must find its ultimate legal foundation in statutory authority. Nothing that he does in his official capacity can be viewed as the exercise of a private right or liberty or as the exercise of the capacity of a natural person.

There is no decisive distinction to be drawn, in so far as the necessity of statutory authority is concerned, between intervention as of right and intervention with the permission of a tribunal. Both kinds of intervention are official acts having potential consequences for the parties to proceedings before an administrative tribunal. Intervention as of right merely has the additional quality of imposing upon the procedure of the tribunal.

If a discretionary authority to permit intervention is not expressly conferred on the Board under the Act by the general power to "make all necessary examinations and inquiries" and the specific powers to conduct hearings in certain cases, it exists by implication as necessary to the effective exercise of these express powers.

Whatever scope may be reasonably assigned to the implied power or discretion of the Board to permit intervention, it cannot have been intended that the Board should have authority to permit intervention by a public officer in his official capacity if the officer has been denied the necessary authority to intervene by his governing statute. The question whether the officer has the necessary statutory authority, if raised by a party to the proceedings before the Board is a collateral one on which the Board cannot be expected to pronounce with finality, but it is one which limits the scope of the Board's discretion to permit intervention. To permit intervention where a public officer is shown to lack the necessary authority to intervene would be to permit him to exceed his authority and thus would be contrary to a fundamental principle of public law. There cannot be an implied power to effect such a result.

Section 27.1 deals exhaustively with the authority of the Director to intervene for the purposes indicated, either as of right or with the permission of a board, commission or other tribunal. It is a clear implication, that the Act, as it stood at the relevant time, denied the Director the necessary authority to intervene before a provincial board with the permission of the board. The maxim expressio unius est exclusio alterius applies. Section 27.1 cannot have been intended to be merely a specific statutory recognition of an authority that would exist apart from statute, and the limitation to federal boards, commissions or other tribunals, cannot, because of the emphasis it is given by the definition of such boards, commissions and other tribunals, be assumed to have been a matter of inadvertence.

Cases Cited

Considered: Re Hunter and Board of Public Utilities of New Brunswick (1984), 1984 2991 (NB CA), 8 D.L.R. (4th) 454; Re Maritime Telegraph & Telephone Co. and Board of Commissioners of Public Utilities (1981), 1981 2674 (NS CA), 125 D.L.R. (3d) 252; referred to: Interprovincial Pipe Line Ltd. v. National Energy Board, 1977 3163 (FCA), [1978] 1 F.C. 601.

Statutes and Regulations Cited

Civil Procedure Rules (Nova Scotia), r. 8.01.

Combines Investigation Act, R.S.C. 1970, c. C‑23, s. 27.1.

Competition Act, S.C. 1986, c. 26, ss. 97 (formerly Combines Investigation Act, R.S.C. 1970, c. C‑23, s. 27.1, ad. 1974‑75‑76, c. 76, s. 9), 98.

Newfoundland Regulation 103/78.

Public Utilities Act, R.S.N. 1970, c. 322, ss. 14, 18, 23(g), 40, 60, 73, 81, 96 (as am. 1975‑76, No. 56, s. 9), 113(2).

Public Utilities Act, R.S.N.B. 1973, c. P‑27, ss. 5(1), 8, 22, 23, 24.

Authors Cited

Côté, Pierre‑André. The Interpretation of Legislation in Canada. Cowansville, Que.: Yvon Blais, 1984.

APPEAL from a judgment of the Newfoundland Court of Appeal (1984), 1984 3083 (NL CA), 8 D.L.R. (4th) 617, 47 Nfld. & P.E.I.R. 277, 139 A.P.R. 277, allowing an appeal from an order of the Newfoundland Board of Commissioners of Public Utilities, P.U. No. 29 (1982). Appeal dismissed.

W. J. Miller and Bruce Russell, for the appellant.

E. J. Kipnis, for the respondent Newfoundland Telephone Company Limited.

Ian F. Kelly, for the respondent Newfoundland Board of Commissioners of Public Utilities.

The judgment of the Court was delivered by

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 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 approval of an extension of its service.

2. The appeal is by leave of this Court from the judgment of the Newfoundland Court of Appeal on April 26, 1984 3083 (NL CA), 1984, 8 D.L.R. (4th) 617, allowing the appeal from an order of the Newfoundland Board of Commissioners of Public Utilities on June 11, 1982, which permitted the Director to intervene in the hearing of an application by the respondent Newfoundland Telephone Company Limited, despite the objection of the Company to such intervention on the ground that the Director lacked the statutory authority to intervene before a provincial board. The appeal in this Court was heard at the same time as the appeal in Canada (Director of Investigation and Research under the Combines Investigation Act) v. New Brunswick Telephone Co., 1987 35 (SCC), [1987] 2 S.C.R. 485, in which, on the question whether a provincial board could properly permit the Director to intervene in proceedings before it, the New Brunswick Court of Appeal came to a conclusion different from that of the Newfoundland Court of Appeal. In this Court a common submission was made on behalf of the Director in the two appeals. It will therefore be necessary to refer to the New Brunswick Telephone Co. appeal in the course of these reasons.

I

3. On April 27, 1982, the Company applied to the Board for authorization of the addition to its services of a "Dial Access to Radio Paging Service" and approval of the related "Newfoundland Telephone Paging System Interface Standards". The hearing of the Company's application was set for May 20, 1982, and on May 17, 1982 the Director gave notice of his intention to intervene in the application and hearing. At the hearing, on June 3, 1982, the Company objected to the proposed intervention on the grounds that the Director did not have the "statutory power" to appear before the Board and that his appearance was not relevant to the Company's application. After argument on this issue, the Chairman of the Board indicated orally that the Board would recognize the "standing" of the Director as an intervener on the understanding that he would confine his representations and evidence to the issue before the Board. On June 11, 1982, the Board issued a formal order, P.U. No. 29 (1982), dismissing the objection of the Company and permitting the Director to appear and be heard before the Board on the Company's application.

4. The Company appealed from the Board's order to the Newfoundland Court of Appeal pursuant to s. 96 of The Public Utilities Act, R.S.N. 1970, c. 322, which, as amended by 1975‑76, No. 56, s. 9, provides that an appeal lies from a decision of the Board to the Court of Appeal on any question of jurisdiction or law. The Court of Appeal unanimously allowed the Company's appeal, holding that in permitting the Director to intervene the Board improperly exercised its discretion to permit intervention because the Director lacked both the "status" under the Combines Investigation Act to intervene before a provincial board and an interest in the application before the Board. The Director had contended that he had the capacity of a natural person to intervene in proceedings before the Board. Mifflin C.J.N., with whom Morgan and Gushue JJ.A. concurred, held that, as the holder of an office created by statute, the Director, acting as such, had only such powers or rights as the statute creating his office conferred on him. Noting that s. 27.1 of the Combines Investigation Act expressly empowered the Director to make representations and adduce evidence before any federal board, commission or other tribunal, Mifflin C.J.N. held that the Act did not confer authority on the Director to intervene before a provincial board, at least when he was not, as he acknowledged, carrying out his investigative or other duties under the Act. The Court of Appeal further held that an intervener must have an interest in an application before the Board and that the Director's desire to be of assistance to the Board did not constitute a sufficient interest.

5. The Court of Appeal did not refer to the judgment of the New Brunswick Court of Appeal in the New Brunswick Telephone Co. case (Re Hunter and Board of Public Utilities of New Brunswick (1984), 1984 2991 (NB CA), 8 D.L.R. (4th) 454), which had been rendered some two weeks earlier, but referred with approval to the decision of Pace J.A. of the Nova Scotia Court of Appeal, sitting in chambers, in the Maritime Telegraph & Telephone Co. case (Re Maritime Telegraph & Telephone Co. and Board of Commissioners of Public Utilities (1981), 1981 2674 (NS CA), 125 D.L.R. (3d) 252). In that case, Pace J.A. had to consider whether the Director, who sought to intervene in an appeal to the Nova Scotia Court of Appeal from a decision of the Nova Scotia Board of Commissioners of Public Utilities, had "an interest in the subject matter of the proceeding", as required by r. 8.01 of the Civil Procedure Rules of Nova Scotia. The Director had not intervened in the application before the Board. In determining whether the Director had the requisite interest, Pace J.A. found it necessary to consider his powers under the Combines Investigation Act. He said at p. 253: "The powers of the Director to intervene are circumscribed by s. 27.1(1) of the Act. The Director is empowered to make representations before federal boards, commissions and tribunals. As far as I can ascertain, there are no similar powers bestowed upon the Director to intervene before provincial bodies and, even if there were, I would have grave doubts whether such legislation would be in the competency of the Parliament of Canada." He concluded on the issue before him as follows at p. 253: "In view of the foregoing, it is my opinion that the Director does not have the statutory authority to intervene and that he has no claim or interest in the subject‑matter of the proceedings as defined by Rule 8.01 of the Civil Procedure Rules and the application should be dismissed."

6. In the New Brunswick Telephone Co. case, the Director sought to intervene in the hearing by the New Brunswick Board of Commissioners of Public Utilities of an application by the New Brunswick Telephone Co. for confirmation by the Board of the Company's interpretation of clauses in its general tariff respecting the imposition of standard service charges. The question was whether the Company was required 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. The Director notified the Board that he wished to intervene because of a complaint he had received from a competing answering service concerning the Company's proposal not to impose standard service charges in such a case, and he referred to his "long standing interest in promoting competition in telecommunications services and ensuring that telephone companies do not engage in unfair competitive practices in these markets." The Company objected to the proposed intervention, and the Board ruled against the Director. Referring to the reasoning of Pace J.A. in the Maritime Telegraph & Telephone Co. case as compelling, the Board concluded that the Director did not have "the capacity to appear or be represented before this Board, as a party, or to intervene in any manner before this Board." The Director applied to the Court of Queen's Bench for judicial review of the Board's decision. Hoyt J. (as he then was) dismissed the Director's application. He said that while he had some reservation concerning the opinion of Pace J.A. in the Maritime Telegraph & Telephone Co. case as to the effect of s. 27.1 of the Combines Investigation Act on the authority of the Director to intervene before a provincial board, he was not disposed to disagree with it. He noted that the same issue was pending before the Newfoundland Court of Appeal. He also observed that the application could be dismissed on the further ground that, since the Director did not seek to have the hearing resumed to permit his participation, the question of his authority or capacity to intervene before the Board had become academic.

7. The New Brunswick Court of Appeal (Stratton, La Forest and Angers JJ.A.) unanimously allowed the appeal from this judgment and quashed the Board's decision. Stratton J.A. (as he then was), with whom Angers J.A. concurred, held that the Board and the Court of Queen's Bench were "in error in concluding that the Director did not have the power or capacity to appear or be represented before the Board." After referring to the distinction suggested by counsel for the Director between statutory authority to intervene as of right before a board and power or capacity to intervene with the permission of a board, Stratton J.A. concluded that s. 27.1 of the Combines Investigation Act did not prevent the Director from intervening before a provincial board with the permission of the board. He said at p. 457:

In my view, s. 27.1 simply empowers the Director to intervene before federal boards or commissions as of right regardless of their internal procedures. But in proceedings such as the present one, where the Director seeks to intervene before a provincial board, he does not intervene as of right but rather must request the Board to permit an intervention in the same way the Board would consider interventions from any interested party. In deciding whether to permit the Director to intervene, the Board need look no further than its own rules of practice and procedure to resolve the issue. Generally speaking, in determining whether the Director may intervene, a board or commission must simply be satisfied that the Director has a valid interest in participating and can be of assistance in the proceedings.

After noting that the Public Utilities Act empowered the Board to "make all necessary examinations and inquiries" and that while the Board had not adopted rules of procedure, as it was empowered to do, the practice of the Board was "to permit a wide range of interests to intervene before it in proceedings of public concern", Stratton J.A. defined the scope of the Board's discretion to permit intervention as follows at p. 458:

Since there is no statutory restriction on the Board's right to hear any interested party, and in view of its practice, it is my opinion that the Board has authority to hear such persons as it determines can be of assistance to it in the performance of its function.

La Forest J.A. (as he then was), in separate reasons concurring in the result, held that the Board erred in refusing the Director permission to intervene on the ground that he lacked the capacity to intervene before a provincial board because the Board was not required to consider the capacity of a proposed intervener in exercising its discretion whether to permit intervention, but only whether the proposed intervener could be of assistance to the Board. He said at p. 459:

In undertaking its duties (the board not having made any rules to the contrary), it may, in my view, allow anyone to participate in a hearing if it believes this may assist it in the performance of its functions. It is really not specifically concerned with the capacity of a proposed intervenor. The board need simply determine whether or not a proposed intervention will assist it in performing its functions and it must exercise its discretion on that basis.

In the present case, however, it failed to exercise its discretion to hear the director because it believed it could not under the law do so because he did not have the capacity to participate in the hearing. In so doing, I think, the board was in error, and the director, being aggrieved by the failure of the board to exercise its discretion, I would dispose of the appeal as proposed by my brother Stratton.

II

8. Section 27.1 of the Combines Investigation Act, referred to in the judgments of the Nova Scotia, New Brunswick and Newfoundland Courts of Appeal on the issue of the Director's authority to intervene, was added to the Act in 1975 by S.C. 1974‑75‑76, c. 76, s. 9, and reads as follows:

27.1 (1) The Director, at the request of any federal board, commission or other tribunal or upon his own initiative, may, and upon direction from the Minister shall, make representations to and call evidence before any such board, commission or other tribunal in respect of the maintenance of competition, whenever such representations or evidence are or is relevant to a matter before the board, commission or other tribunal, and to the factors that the board, commission or other tribunal is entitled to take into consideration in determining such matter.

(2) For the purposes of this section, "federal board, commission or other tribunal" means any board, commission, tribunal or person who is expressly charged by or pursuant to an enactment of Parliament with the responsibility of making decisions or recommendations related directly or indirectly to the production, supply, acquisition or distribution of a product and includes an ad hoc commission of inquiry charged with any such responsibility but does not include a court.

9. Effective June 19, 1986, s. 27.1 of the Combines Investigation Act was replaced by s. 97 of the Competition Act, which was enacted by S.C. 1986, c. 26, and reads as follows:

10. (1) The Director, at the request of any federal board, commission or other tribunal or on his own initiative, may, and on direction from the Minister shall, make representations to and call evidence before the board, commission or other tribunal in respect of competition, whenever such representations are, or evidence is, relevant to a matter before the board, commission or other tribunal, and to the factors that the board, commission or other tribunal is entitled to take into consideration in determining the matter.

(2) For the purposes of this section, "federal board, commission or other tribunal" means any board, commission, tribunal or person that carries on regulatory activities and is expressly charged by or pursuant to an enactment of Parliament with the responsibility of making decisions or recommendations related directly or indirectly to the production, supply, acquisition or distribution of a product.

At the same time there was added to the Act a s. 98, respecting intervention by the Director before provincial boards, commissions or other tribunals, which reads as follows:

98. (1) The Director, at the request of any provincial board, commission or other tribunal, or on his own initiative with the consent of the board, commission or other tribunal, may make representations to and call evidence before the board, commission or other tribunal in respect of competition, whenever such representations are, or evidence is, relevant to a matter before the board, commission or other tribunal, and to the factors that the board, commission or other tribunal is entitled to take into consideration in determining the matter.

(2) For the purposes of this section, "provincial board, commission or other tribunal" means any board, commission, tribunal or person that carries on regulatory activities and is expressly charged by or pursuant to an enactment of the legislature of a province with the responsibility of making decisions or recommendations related directly or indirectly to the production, supply, acquisition or distribution of a product.

10. The future significance of the issue of the Director's authority to intervene before a provincial board with the permission of the board would appear to have been removed by s. 98 of the Competition Act, which came into force after the present appeal was argued. Indeed, this issue, as well as the others in the appeal, may have been rendered academic by the fact that in neither the Newfoundland nor the New Brunswick case did the Director appear to seek a resumption of the hearing before the Board in order to participate but rather an opinion from the Court as to whether he required statutory authority to intervene before a provincial board, with the permission of the board, and if so, whether he had such authority under the Combines Investigation Act. In view, however, of the possible general significance of the issues in the appeal, despite their rather special or narrow statutory context, I have proceeded on the assumption that the Court should exercise its discretion to decide them, to the extent necessary for the disposition of the appeal.

III

11. The first issue in the appeal is whether a public officer 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. In my opinion, the answer to that question must be in the affirmative. Such an action, although it does not have regulatory effects, may have consequences for the rights, obligations or interests of others. It is an assertion, in an adjudicative context, of the authority and expertise of a public official. In such a case, a public officer puts the weight of his opinion and knowledge, acquired in the exercise of his official duties, on the adjudicative scales. He extends, on his own initiative, the effective reach and influence of his office and authority with potential direct legal effect. Whether he should have the power or right to do so is a matter of legislative policy and thus of statutory authority.

12. I do not think there is a meaningful distinction to be drawn in this respect between authority and capacity. In so far as this issue is concerned, they can be treated as synonymous. Everything that a public officer, whose office has been created and defined by statute, does in his official capacity must find its ultimate legal foundation in statutory authority. Nothing that he does in his official capacity can be viewed as the exercise of a private right or liberty, or, as was contended by counsel for the Director before the Newfoundland Court of Appeal, the exercise of the capacity of a natural person. The Director did not seek to intervene as a private individual. He sought to intervene, as his notice of intervention clearly indicates, in his official capacity as the "Director of Investigation and Research, an officer appointed by the Governor‑General‑in‑Council under the authority of the Combines Investigation Act". As such, he sought to bring the authority and expertise of his office to bear on the issues and interests involved in the application before the Board.

13. Nor do I think that there is a decisive distinction to be drawn, in so far as the necessity of statutory authority is concerned, between intervention as of right and intervention with the permission of a tribunal. Both kinds of intervention are official acts having potential consequences for the parties to proceedings before an administrative tribunal. Intervention as of right merely has the additional quality of imposing upon the procedure of the tribunal.

IV

14. The second and closely related issue in this appeal is whether the Board could validly permit the Director to intervene if he did not have the required statutory authority to do so. This question requires consideration of the nature and scope of the Board's authority or discretion to permit intervention. The Public Utilities Act of Newfoundland does not contain any explicit provision with respect to intervention. Section 14 of the Act sets out the general powers of the Board as follows: "The Board shall have the general supervision of all public utilities, and may make all necessary examinations and enquiries and keep itself informed as to the compliance by public utilities with the provisions of law and shall have the right to obtain from any public utility all information necessary to enable the Board to fulfil its duties." Other sections of the Act, such as ss. 40, 60, 73 and 81, make specific provision for hearings by the Board, but again make no reference to intervention. Section 18 of the Act empowers the Board to make rules and regulations with respect to its practice and procedure, and Newfoundland Regulation 103/78 provides for various aspects of the practice and procedure in proceedings before the Board, but contains no reference to intervention. Section 23(g) of the Act provides that the Board may "generally do all things which the Board deems necessary, convenient or advisable for or incidental to the exercise of any of the powers, functions and duties of the Board", and s. 113(2) makes further express provision for the implied powers, which would otherwise exist by virtue of the well established rule of statutory construction, as follows: "The Board hereby created has, in addition to the powers in this Act specified, mentioned and indicated, all additional, implied and incidental powers which may be proper or necessary to carry out, effect, perform and execute all the said powers herein specified, mentioned and indicated."

15. There is also an absence of express reference to intervention in the Public Utilities Act, R.S.N.B. 1973, c. P‑27, which is applicable in the New Brunswick Telephone Co. appeal. Section 5(1) of the New Brunswick Act provides for the general powers of the Board of Commissioners of Public Utilities, in terms similar to those of s. 14 of the Newfoundland Act, as follows: "The Board shall have general supervision of all public utilities and shall make all necessary examinations and inquiries and keep itself informed as to the compliance by public utilities with the provisions of this Act." Sections 22 to 24 of the New Brunswick Act make provision for hearings by the Board but contain no specific reference to intervention. As Stratton J.A. noted in his reasons for judgment, s. 8 of the Act empowers the Board to make rules and regulations with respect to practice and procedure before the Board, but no such rules or regulations have been adopted. Thus in New Brunswick, as in Newfoundland, there is no express provision of law either conferring authority on the Board to permit intervention or restricting the scope of any such authority as may arise by implication.

16. If a discretionary authority to permit intervention is not expressly conferred under the New Brunswick and Newfoundland Acts by the general power to "make all necessary examinations and inquiries" and the specific powers to conduct hearings in certain cases, it exists, in my opinion, by implication as necessary to the effective exercise of these express powers. Cf. Interprovincial Pipe Line Ltd. v. National Energy Board, 1977 3163 (FCA), [1978] 1 F.C. 601, at p. 608. The question whether a proposed inter‑ vener must have an interest in the particular application before the Board of the kind suggested by the Newfoundland Court of Appeal or whether it is sufficient, as was held by the New Brunswick Court of Appeal, that a proposed intervener may be of assistance to the Board in the determination of the issues raised by an application, does not arise for decision unless the Director had the required authority to intervene, with the permission of the Board, or the Board could properly permit intervention by the Director despite a lack of such authority. It was contended by counsel for the Company that the questions whether a proposed intervener required an interest in the application before the Board and whether the Director had a sufficient interest were not in issue in the appeal, but in view of the two grounds for judgment in the Newfoundland Court of Appeal the Director cannot succeed in the present appeal unless he succeeds on both the ground of statutory authority and the ground of interest. It will therefore be necessary to consider the question of interest if the Director is found to have the requisite statutory authority to intervene in the proceedings before the Board, with the permission of the Board.

17. The question that must be confronted now is whether it would be a proper or valid exercise of the Board's discretion to permit intervention if the Director did not have the requisite statutory authority to do so. On this question, as I have indicated, opinions in the Newfoundland and New Brunswick Courts of Appeal differed. The Newfoundland Court of Appeal was unanimously of the view that the Board improperly exercised its discretion in permitting the Director to intervene when, in the Court's opinion, he lacked the statutory authority to do so. As Mifflin C.J.N. put it at p. 620: "The effect of the decision of the Board is, in my view, tantamount to conferring on the Director a status which was not conferred on him by the Act creating his office. The Board in permitting the Director the right to intervene arrogated to him a right which was not given by the Act creating his office, duties and powers. This the Board cannot do." To similar effect, he said at p. 621: "In my opinion the Board, in defining and establishing the procedure on hearings before it, cannot confer a right on a statutory creature, such as the Director, which the statute itself does not confer." As I read the reasons for judgment of Stratton J.A., with whom Angers J.A. concurred, in the New Brunswick Telephone Co. case, he was of the view that either the Director did not require statutory authority to intervene in proceedings before a provincial board, with the permission of the board, or the Director had the necessary authority, but there is also a possible suggestion in his reasons that in any event the Board was not required to consider the question of the Director's authority to intervene in exercising its discretion whether to permit intervention. I have already quoted the following words, which may be understood in this sense, from the reasons for judgment of Stratton J.A. at p. 457: "In deciding whether to permit the Director to intervene, the Board need look no further than its own rules of practice and procedure to resolve the issue. Generally speaking, in determining whether the Director may intervene, a board or commission must simply be satisfied that the Director has a valid interest in participating and can be of assistance in the proceedings." In any event, this was clearly the view of La Forest J.A., as indicated by the passages from his reasons for judgment which I have quoted above.

18. On this issue, I am in respectful agreement with the conclusion of the Newfoundland Court of Appeal in the case at bar. Whatever scope may be reasonably assigned to the implied power or discretion of the Board to permit intervention, it cannot have been intended that the Board should have authority to permit intervention by a public officer in his official capacity if the officer has been denied the necessary authority to intervene by his governing statute. The question whether the officer has the necessary statutory authority, if raised by a party to the proceedings before the Board is, of course, a collateral one on which the Board cannot be expected to pronounce with finality, but it is one which limits the scope of the Board's discretion to permit intervention. To permit intervention where a public officer is shown to lack the necessary authority to intervene would be to permit him to exceed his authority and thus would be contrary to a fundamental principle of public law. There cannot be an implied power to effect such a result. It is therefore necessary, in my opinion, to consider whether the Director had statutory authority to intervene in proceedings before a provincial board, with the permission of the board.

V

19. This issue turns on the construction and effect to be given to the former s. 27.1 of the Combines Investigation Act, which is quoted in Part II of these reasons. In my respectful opinion, the terms of s. 27.1 do not support the conclusion that the only reason for the provision and for its limitation to intervention before federal, as distinct from provincial, boards, commissions or other tribunals, is that it purports only to confer authority to intervene as of right. The statutory duty imposed on the Director, upon direction from the Minister, to make representations and adduce evidence, for the purposes indicated, before a federal board, commission or other tribunal undoubtedly imports an authority to intervene as of right, for otherwise the Director could be prevented from performing his duty. The authority conferred on the Director to act on his own initiative to make representations and adduce evidence before a federal board, commission or other tribunal should also probably be construed as an authority to intervene as of right, but it may also be understood as including authority to intervene with the permission of a board, commission or other tribunal, assuming, for the reasons I have stated, the necessity of such authority. The authority to intervene, at the request of a board, commission or other tribunal, need need not be and should not be construed as an authority to intervene as of right. The terms of s. 27.1 thus purport to deal exhaustively with the authority of the Director to intervene for the purposes indicated, either as of right or with the permission of a board, commission or other tribunal. It is therefore a clear implication, in my opinion, that the Act, as it stood at the relevant time, denied the Director the necessary authority to intervene before a provincial board with the permission of the board. In effect, I am of the view that this is a clear case for application of the maxim expressio unius est exclusio alterius. I am mindful of the reservations and cautions that have been expressed with reference to this maxim on several occasions in this Court (see Côté, The Interpretation of Legislation in Canada (1984), at pp. 262‑66), but its application in the present case does not appear to me to encounter them. In particular, s. 27.1, for the reasons I have indicated, cannot have been intended, out of an abundance of caution, to be merely a specific statutory recognition of an authority that would exist apart from statute, and the limitation to federal boards, commissions or other tribunals, cannot, because of the emphasis it is given by the definition of such boards, commissions and other tribunals, be assumed to have been a matter of inadvertence.

20. In conclusion, then, it is my opinion that the Director lacked the necessary statutory authority to intervene before the Board, with the permission of the Board, and the Board could not validly permit his intervention. I would accordingly dismiss the appeal, with costs to the respondent Newfoundland Telephone Company Limited.

Appeal dismissed with costs.

Solicitor for the appellant: The Attorney General of Canada, Ottawa.

Solicitors for the respondent (applicant) Newfoundland Telephone Company Limited: Chalker, Green & Rowe, St. John's.

Solicitors for the respondent Newfoundland Board of Commissioners of Public Utilities: Curtis, Dawe, Russell, Bonnell, Winsor & Stokes, St. John's.