By Ahmad Hathout
Bell will argue before the Federal Court of Appeal that the CRTC was not right to rely on the government’s policy direction to order telcos to provide interim access to their bundled transport and last mile fibre facilities because it is inherently contradicted by the Telecommunications Act.
Section 10 of the 2023 policy direction to the CRTC requires the commission to mandate the provision of an aggregated wholesale high-speed access service. At the same time, section 8 of the Telecommunications Act provides the government with the ability to order the regulator to make decisions of “general application on broad policy matters with respect to the Canadian telecommunications policy objectives.”
Bell argues that the regulator’s reliance on section 10’s specificity to justify its November decision makes it an error in law because the Act only allows applications of broad and general application.
“Parliament did not confer upon the Governor in Council a power to make a specific direction like s. 10,” Bell said in its notice of application challenging the CRTC’s November decision.
The Federal Court of Appeal will hear Bell’s argument in a hearing, but rejected its request to also suspend the interim decision that requires Bell and Telus to provide access to their aggregated fibre facilities in Quebec and Ontario by May 7.
“The only instance where the Act confers on the Governor in Council the power to issue detailed directions to the CRTC in advance of its decisions is s. 15(1), which empowers the Governor in Council to “establish standards in respect of the technical aspects of telecommunications and require the Commission to give effect to them,” Bell continued in its application.
“Section 15(1) demonstrates that, where Parliament intends to give direct control over telecommunications to the executive, it does so explicitly, and it imposes limitations on that power,” it added.
Bell will argue that section 10 is not a provision of general application, as required by the Act, because it “applies only to Facilities Based Carriers with respect to a concrete dispute between those carriers and Resellers (mandatory aggregated wholesale HSA services).”
It will argue that section 10 does not pertain to broad policy matters because it “imposes a very specific requirement upon the CRTC in relation to one specific type of telecommunications service: aggregated wholesale HAS access.”
And it will argue that section 10 is not a direction with respect to the Canadian telecommunications policy objectives because it “does not provide guidance about the Canadian telecommunications policy objectives but instead requires the CRTC to exercise its statutory discretion in a specific way.”
Bell will also argue that the CRTC was required to apply the standard three-part legal test called RJR-MacDonald – that there’s a serious issue; that there would be irreparable harm an order; and the balance of convenience weighs in favor of a decision in the affirmative.
But instead, Bell argues the CRTC was guided by its discretion to push forward policy objectives, which it said is contrary to the guidance required for what it says is an interim interlocutory relief decision.
“The CRTC compounded its error in the Decision by holding that, even if its interim mandatory order were a form of interlocutory injunctive relief, it could apply a test that is defined solely with reference to its “policy objectives” rather than RJR,” Bell said, adding the regulator further erred by not telling parties in advance that it was going to use a different standard by which to make the decision.
“The fact that the mandatory, interlocutory order in the Decision engages policy considerations cannot be a reason for departing from the RJR framework,” it added. “Every telecommunications decision the CRTC makes must weigh policy considerations. However, despite this ongoing obligation, the CRTC has consistently applied the RJR test to interim relief decisions since 1997, pursuant to the Practice Note. The presence of policy issues in the Decision therefore cannot be a basis for disregarding RJR now.”
