By Denis Carmel
OTTAWA – To no one’s surprise, Bell Canada and the large cable companies have sought leave to appeal the Federal Court of Appeal decision of September 10, 2020, over CRTC Decision 2019-288 (about the fees third party internet access ISPs pay to the incumbents) to the Supreme Court of Canada.
Bell adopted the reasoning put forward by the large cable carriers (Rogers, Shaw, Videotron, Cogeco, and Eastlink) and let them argue more at depth the issues at hand.
Their argument seems to focus on, besides the basic issues they contended before when they went to the Federal Court of Appeal (FCA) and to the CRTC, that the FCA erred by not considering the fact that the CRTC in its 2019 Decision did not state how it met the 2006 Telecom Policy Direction from the federal government.
Bell and the cable providers argue that the CRTC failing to explain, in the decision, how they meet the requirements of the Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives, P.C. 2006-1534 and that the FCA overlooked this by saying that the CRTC was well aware of it. The Court of Appeal held that the Cabinet Direction was satisfied because the CRTC Decision demonstrated that it “was aware of the policy concerns identified by the appellants,” and “engaged with those concerns” in its reasons, says the cablecos’ application.
In doing so, however, the Court of Appeal did not examine the statutory purpose behind the reasons requirement in the Cabinet Direction. Instead, it appeared to simply assume that the ordinary administrative law standard for reasons in a judicial review applies,” Bell’s application reads.
Matt Stein, president of Distributel and chairman of the Competitive Network Operators of Canada (CNOC) reacted quickly. “Canada’s largest phone and Cable Companies have decided to try one more time to harm competition and keep their high prices, by wasting the time of our nation’s highest court. While Canadians may not be surprised, they have every right to be outraged.”
Opposing intervenors now have 30 days to provide arguments countering Bell and the cablecos.
Then, the Supreme Court first must grant leave, which is not a given, and then if they do, hear the case eventually. The Court is not bound by any timelines.
Also, the CRTC must still pronounce itself on the Review and Vary of the same decision.
