OTTAWA – Back in 2015, the CRTC concluded a review of telecommunications wholesale wireline services. In that decision the Commission set a speed threshold for aggregated wholesale services of 100 Mbps.
In November 2018, the Canadian Network Operators Consortium (CNOC) filed an application to review and vary the 2015 decision. Amongst others, CNOC sought, the removal of the Speed Cap on aggregated wholesale services on an expedited basis.
On March 20, 2019, the CRTC granted that interim relief while it continued to examine the file in front of it.
As said Chris Seidl, Executive Director, Telecommunications, in a March 27th speech at the Canwisp Conference, in Gatineau, Québec. “We recently issued our decision granting CNOC interim relief by suspending the implementation of the 100 Mbps speed caps for aggregated wholesale high-speed access services—pending a final decision.
“Our reason for doing so is that consumers may be limited in their choice of service provider for speeds above 100 Mbps until disaggregated services are available. This could prove disruptive for consumers in a growing segment of the retail Internet services market. The CRTC believes the lowest potential disruption for consumers is in the public interest,” he added.
Last week, however, Telus took that decision to the Federal Court of Appeal arguing the CRTC violated the rules of procedural fairness and/or erred in law by departing from its the standard three-part test for interim relief, without notice to the parties.
The standard test for interim relief set out by the Supreme Court are, as mentioned in the CRTC decision:
- there is a serious issue to be determined;
- the party seeking relief will suffer irreparable harm if the interim relief is not granted; and
- the balance of convenience, taking into account the public interest, favours granting the interim relief.
“In order to be granted interim relief, an applicant must demonstrate that its application meets all three criteria, “it concludes.
But the decision also says “despite the Commission’s conclusion that CNOC has not satisfied the test for interim relief, the issues raised in this request are unique and significant enough that they warrant further consideration and a departure from the Commission’s general practice of applying the interim relief criteria outlined above when considering whether or not to grant interim relief.”
As Eric Edora, director of regulatory affairs at Telus said in an affidavit filed with Telus application: “Had I known the CRTC would consider the impact on consumers as the predominant factor… I would have focussed further on the impact on consumers.”
Telus concludes its application by saying: “All of the parties—including the CNOC—focussed on addressing the three standard elements of the test for interim relief. The CRTC has previously issued a practice direction stating that it would follow that three-part test. TCI had a legitimate expectation that the CRTC would not depart from the standard three-part test without notice to the parties.”
We expect Telus to get permission to appeal, and then it is in the hands of the Court.
