OTTAWA – The Governor in Council (GIC) did not exceed its authority under the Telecommunications Act when it ruled that Globalive Wireless met the Canadian ownership and control test, the Federal Court of Appeal (FCA) said in a June 8 decision.
In a statement, Globalive’s Wind Mobile proclaimed its vindication.
“We and our 300,000 customers are thrilled with this decision,” said Anthony Lacavera, chair of Globalive. “Now we can continue delivering value and choice to Canadian consumers without the distraction and expense of challenges by our competitors to our right to operate.”
The ruling comes after the Federal Court of Canada quashed the GIC decision earlier this year, saying that Cabinet overstepped its authority by inserting a policy objective into the Act and by noting that the decision would only affect Globalive. Public Mobile with the support of Telus Corp. led the charge against the Cabinet decision. They faced the court less than a month ago.
The FCA disagreed with the Federal Court decision, saying that the government’s decision to greenlight Globalive was based on fact and law and that policy considerations didn’t come into play until after Cabinet decided Globalive was in fact allowed to operate under Canadian law.
“It considered the same facts and the same law as the CRTC, and simply reached different conclusions,” Justice Edgar Sexton wrote in the majority decision. “The divergence between the CRTC and Governor in Council comes in the factual inferences, or conclusions, the Governor in Council drew from the evidence. The Governor in Council simply had a different appreciation of things, and that appreciation was rational and defensible.”
The FCA didn’t buy into the lower court’s ruling that Cabinet erred when it said the Act should be interpreted to ensure that access to foreign capital, technology and experience is encouraged in a manner that supports Canadian telecommunications policy objectives. The Federal Court noted that the GIC had to operate within the confines of the Act, something it didn’t do when it approved Globalive’s ownership structure.
Justice Sexton wrote that only after reaching the conclusion that Globalive met the ownership and control test, Cabinet then enunciated policy implications for varying the CRTC decision.
“The promotion of access to foreign capital, technology, and experience can further a number of the policy objectives enumerated in section 7,” the FCA said in its ruling, highlighting reliable, affordable, and accessible telecom services, enhancing efficiency and competitiveness, fostering increased reliance on market forces, stimulating research and development, and responding to the economic and social requirements of telecommunications users.
“To be specific, the Governor in Council in effect was saying that Canadians are entitled to a more competitive wireless telecommunications market, and that this would be frustrated by Globalive, a Canadian owned and controlled company, being prevented from operating,” said the FCA.
