Date:
20130215
Docket: A-309-12
Citation: 2013 FCA 44
CORAM: BLAIS
C.J.
MAINVILLE
J.A.
WEBB
J.A.
BETWEEN:
TELUS COMMUNICATONS
COMPANY
Appellant
and
NORTHWESTEL INC., BELL CANADA,
ROGERS CABLE COMMUNICATIONS INC.,
SASKATCHEWAN TELECOMMUNICATIONS
AND
PRIMUS TELECOMMUNICATIONS CANADA
INC.
Respondents
REASONS FOR JUDGMENT
WEBB J.A.
[1]
This
is an appeal from the decision of the Canadian Radio-television and
Telecommunications Commission (CRTC) dated March 14, 2012 (Telecom Order CRTC
2012-151). The CRTC held that:
(a)
the
amendment to the Interconnection and Service Agreement between Northwestel Inc.
(Northwestel) and Bell Canada;
(b)
the
800 service origination agreement between Northwestel and Rogers Cable
Communications Inc. (Rogers); and
(c)
the
800 service origination agreement between Northwestel and Saskatchewan
Telecommunications (SaskTel)
were all approved under section 29 of the Telecommunications
Act, S.C. 1993, c. 38 (Act). The CRTC also held that it was appropriate to
consider these agreements for approval under section 29 and not section 25 of
the Act. Some of the amounts that would be paid under the agreements were
redacted in the copies of the agreements that were made available to the
public, although these amounts were disclosed to the CRTC. Additionally, the
CRTC held that since Primus Telecommunications Canada Inc. (Primus) was not a
carrier, the agreement between Northwestel and Primus was not subject to the
provisions of section 29 of the Act.
[2]
Telus
Communications Company (Telus) has appealed this decision under section 64 of
the Act. Telus argues that the approval of the agreements under section 29 of
the Act does not exempt Northwestel from the requirements of section 25 of the
Act and that the amounts to be paid by each of Bell Canada, Rogers, and SaskTel
to Northwestel must be included in a tariff that is filed (and then disclosed)
under section 25 of the Act. Telus agreed that the section 29 of the Act did
apply to these agreements but submitted that section 25 of the Act would also
apply. As well, Telus submitted that since the CRTC held that no approval of
the agreement between Northwestel and Primus was required under section 29 of
the Act, the amounts that would be paid by Primus to Northwestel must be
included in a tariff that is filed and approved under section 25 of the Act.
[3]
Telus
submitted that the standard of review was correctness while Northwestel argued
that the applicable standard was reasonableness. In this case I would reach the
same conclusion whether the applicable standard is correctness or
reasonableness and therefore it not necessary to determine which standard of
review is appropriate.
Legislative Provisions
[4]
Sections
25, 26 and 29 of the Act provide as follows:
|
25. (1) No Canadian carrier shall provide a telecommunications
service except in accordance with a tariff filed with and approved by the
Commission that specifies the rate or the maximum or minimum rate, or both,
to be charged for the service.
(2) A joint tariff agreed on by two or more Canadian
carriers may be filed by any of the carriers with an attestation of the
agreement of the other carriers.
(3) A tariff shall be filed and published or otherwise
made available for public inspection by a Canadian carrier in the form and
manner specified by the Commission and shall include any information required
by the Commission to be included.
…
26. Within forty-five business days after a tariff is filed
by a Canadian carrier, the Commission
shall
(a) approve the
tariff, with or without
amendments, or substitute or require the carrier to
substitute another tariff for it;
(b) disallow
the tariff; or
(c) make public
written reasons why the Commission has not acted under paragraph (a)
or (b) and specify the period of time within which the Commission
intends to do so.
…
29. No Canadian carrier shall, without the prior approval of
the Commission, give effect to any agreement or arrangement, whether oral
or written, with another telecommunications common
carrier respecting
(a) the
interchange of telecommunications by means of their telecommunications
facilities;
(b) the
management or operation of either or both of their facilities or any other
facilities with which either or both are connected; or
(c) the
apportionment of rates or revenues between the carriers.
|
25. (1)
L’entreprise canadienne doit fournir les services de télécommunication en
conformité
avec la
tarification déposée auprès du
Conseil et
approuvée par celui-ci fixant — notamment sous forme de maximum, de minimum ou
des deux — les tarifs à imposer ou à percevoir.
(2) Toute tarification
commune entérinée par plusieurs entreprises canadiennes peut être déposée
auprès du Conseil par une seule d’entre elles avec attestation de l’accord
des autres.
(3) La
tarification est déposée puis publiée ou autrement rendue accessible au public,
selon les modalités de forme et autres fixées par le Conseil; celui-ci peut
par ailleurs préciser les renseignements devant y figurer.
[…]
26. Dans
les quarante-cinq jours ouvrables suivant le dépôt de la tarification par
l’entreprise canadienne, le Conseil :
a)
soit l’approuve — avec ou sans modifications — , lui en substitue une autre
ou exige de l’entreprise qu’elle lui en substitue une autre;
b)
soit la rejette;
c)
soit rend publics, par écrit, les motifs pour lesquels il n’a pas encore pris
l’une des mesures visées aux alinéas a) et b) et
précise le délai dans lequel il a l’intention de le faire.
[…]
29. Est
subordonnée à leur approbation par le Conseil la prise d’effet des accords et
ententes
— oraux ou
écrits — conclus entre une entreprise canadienne et une autre entreprise de télécommunication
sur soit l’acheminement de télécommunications par leurs installations de télécommunication
respectives, soit la gestion ou l’exploitation de celles-ci, ou de l’une
d’entre
elles, ou d’autres installations qui y sont interconnectées, soit encore la
répartition des tarifs et des autres recettes entre elles.
|
Agreements with Bell Canada, Rogers, and SaskTel
[5]
The
agreement between Northwestel Inc. and Bell Canada is an amending agreement
dated January 1, 2010. This was the second amendment to the original agreement
that was dated January 1, 2003. The original agreement, as described in the
first recital in the Amending Agreement that was submitted for approval, was an
agreement for “Interconnection and Settlement of services between Northwestel
and Bell”. The amending agreement replaced article 4.1 (b) of Schedule C to
Appendix A of the original agreement (as previously amended) with the
following:
(b) For Bell Canada Attributed
Traffic Bell Canada shall pay to Northwestel:
(i)
For
traffic in the Eastern Arctic the Northwestel Bundled CAT plus the tariffed
satellite proxy transport charge as noted in Northwestel tariff CRTC 21480 Item
40; and
• For
traffic in the Western Arctic the Northwestel Bundled CAT plus its per minute
transport charge of [**] per minute in 2010.
[6]
Since
the amount that Bell Canada would be paying for traffic in the Eastern Arctic was noted in a tariff that was published, this appeal does not relate to
this amount. This appeal arises because the amount that would be paid for
traffic in the Western Arctic was not disclosed to the public. It is the
position of Telus that the amount that Bell Canada would be paying for traffic
in the Western Arctic should have been set out in a tariff (that would have
been published) in the same manner as the amount that would be paid for traffic
in the Eastern Arctic was set out in a published tariff.
[7]
In
the agreements with Rogers and SaskTel, the payment paragraphs provide as
follows:
Rogers
3.1 For each minute
of 1-800 traffic, Rogers shall pay to Northwestel the sum of the following:
…
b) Transport and access tandem charge to
Signal Transfer Point
i) For all 1-800 traffic
originating in Northwestel’s western area, Rogers shall pay to Northwestel a
transport and access tandem charge of [**] per minute.
ii) For all 1-800 traffic
originating in Northwestel’s eastern area, Rogers shall pay to Northwestel a
transport and access tandem charge of [**] per minute.
SaskTel
3.1 For each
minute of 1-800 traffic, SaskTel shall pay to Northwestel the sum of the
following:
…
3.2 a) For
all 1-800 traffic originating in Northwestel’s western area, SaskTel shall pay
to Northwestel a transport and access tandem charge of [**] per minute.
b) For all 1-800
traffic originating in Northwestel’s eastern area, SaskTel shall pay to
Northwestel a transport and access tandem charge of [**] per minute.
[8]
It
is the position of Telus that section 25 of the Act (in addition to section 29
of the Act) applies to the amounts that would be paid by Rogers and SaskTel to
Northwestel under these agreements.
Decision of the CRTC
[9]
In
brief reasons, the CRTC held that the agreements between Northwestel and Bell Canada, Rogers and SaskTel were approved under section 29 of the Act and that the amounts
that each of these companies would pay to Northwestel would remain confidential
and would not be disclosed to the public. In its decision the CRTC noted as
follows:
7.
The
Commission notes that subsection 29(c) of the Act applies to agreements
between carriers for the apportionment of revenues between the carriers. The
Commission considers that it is clear that the negotiated rates in the
agreements are used to apportion revenues, which are collected from
end-customers for the payment of long distance and 800 calls, between the
parties to the agreements.
8.
The
Commission notes that it has approved numerous agreements between carriers that
contain the same type of confidential, negotiated rates for the apportionment
of revenue pursuant to section 29 of the Act. The Commission also notes that it
has not required these rates to be tariffed The Commission considers that,
consistent with its previous treatment of these types of agreements, the
consideration of approval for the Northwestel agreements pursuant to section 29
of the Act and not section 25 is appropriate.
9.
The
Commission considers that the negotiated, confidential rates contained in the
agreements between Northwestel and Bell Canada, RCCI, and SaskTel are
reasonable and appear not to unduly discriminate between carriers.
Analysis
[10]
Telus
argues that Northwestel will be providing telecommunication services under its
agreements with Bell Canada, Rogers, and SaskTel. The definitions of
telecommunication service and related provisions are set out in the Appendix to
these reasons. Section 25 of the Act provides that “[n]o Canadian carrier shall provide a telecommunications service except in
accordance with a tariff filed with and approved by the Commission…”. Telus
submits that, therefore, Northwestel could not provide the services as
contemplated by the agreements referred to above until the amounts to be paid
by Bell Canada, Rogers and SaskTel under these agreements are also tariffed
under section 25 of the Act.
[11]
Telus referred to a number of prior decisions of the CRTC
(or its predecessor). However, Telus did not refer to any decision of the CRTC
(or its predecessor) in which the CRTC (or its predecessor) specifically
determined that once an agreement has been approved under section 29 of the
Act, any amounts to be paid under that agreement must also be tariffed under
section 25 of the Act. Telus referred in particular to the following excerpt
from the decision of the Board of Transport Commissioners in Union Telephone
Co. Ltd. v. Bell Telephone Co. of Canada (1954) 71 CRTC 81:
By s. 380 of
the Railway Act, R.S.C. 1952, c. 234, Bell is required to file with the
Board its tariffs of tolls charged to the public and to secure the Board’s
approval thereof. Additionally, all contracts, agreements and arrangements for
the interchange of messages or service, and the divisions of revenue and the
management, working or operation thereof, are subject to the Board’s approval.
[12]
In that case Union Telephone Co. Ltd. (Union) was asking
the Board to order Bell Telephone Co. of Canada to pay Union for the use of Union’s facilities when long distance calls were made using such facilities. This was not a
case where approval of an existing agreement was being sought and it seems to
me that the comments of the Board referred to above were simply general
comments in relation to the applicable statute. In my view, the use of the word
“additionally” simply means that it is another requirement of the statute and
should not be construed as an interpretation of how the two provisions would
apply in the situation as contemplated by this appeal.
[13]
The
Supreme Court of Canada in The Queen v. Canada Trustco Mortgage Company,
2005 SCC 54, [2005] 2 S.C.R. 601, stated that:
10. It has
been long established as a matter of statutory interpretation that “the words
of an Act are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act,
and the intention of Parliament”: see 65302 British Columbia Ltd. v. R.,
[1999] 3 S.C.R. 804 (S.C.C.), at para. 50. The interpretation of a statutory
provision must be made according to a textual, contextual and purposive
analysis to find a meaning that is harmonious with the Act as a whole. When the
words of a provision are precise and unequivocal, the ordinary meaning of the
words play a dominant role in the interpretive process. On the other hand,
where the words can support more than one reasonable meaning, the ordinary
meaning of the words plays a lesser role. The relative effects of ordinary
meaning, context and purpose on the interpretive process may vary, but in all
cases the court must seek to read the provisions of an Act as a harmonious
whole.
[14]
The
amount that would be paid by the end-customers, as acknowledged by both Telus
and Northwestel, was the subject of a tariff that either:
(a)
would
have been filed and approved under section 25 of the Act; or
(b)
would
have been exempted from such filing and approval requirements as a result of a
determination by the CRTC, as provided in section 34 of the Act.
Amounts under the agreements between Northwestel and
Bell Canada, Rogers and SaskTel would only be paid once calls are made and, as
found by the CRTC, the agreements simply apportioned the revenue (which would
be tariffed rate or the exempted rate) that would be generated when such calls
are made. It does not seem to me that in reading the Act as a harmonious whole
that the object of the Act and the intention of Parliament would be fulfilled
if both sections 25 and 29 of the Act would apply to the amounts to be paid
under these agreements and therefore Northwestel would be required to obtain
two approvals of the amounts that would be paid by Bell Canada, Rogers and
SaskTel. In approving the agreements between Northwestel and Bell Canada, Rogers and SaskTel under section 29 of the Act, the CRTC approved the amounts that each of
theses companies would be paying to Northwestel. It would not be a reasonable
interpretation of the Act to require the CRTC to again approve these same
amounts under section 25 of the Act.
[15]
In
my view paragraph 7(f) of the Act supports this interpretation. This
paragraph provides as follows:
|
7. It is hereby affirmed that
telecommunications performs an essential role in the maintenance of Canada’s identity and sovereignty and that the Canadian telecommunications policy has as
its objectives
…
(f) to foster increased reliance
on market forces for the provision of telecommunications services and to
ensure that regulation, where required, is efficient and effective;
|
7. La présente loi affirme le
caractère essentiel des télécommunications pour l’identité et la souveraineté
canadiennes; la politique canadienne de télécommunication vise à :
[…]
f) favoriser le libre jeu du
marché en ce qui concerne la fourniture de services de télécommunication et
assurer l’efficacité de la réglementation, dans le cas où celle-ci est
nécessaire;
|
Requiring Northwestel to obtain two approvals of the
amounts to be paid to it under its agreements with Bell Canada, Rogers and SasklTel would not result in efficient and effective regulation.
[16]
Telus
submitted that in applying section 25 of the Act, the amounts would only need
to be filed, not approved. However, it seems to me that section 25 of the Act
cannot be separated into two parts. Both the filing requirement and the
approval requirement are included in section 25 of the Act. As well section 26
provides that once the tariff is filed, the approval process must follow. It is
not possible to split section 25 of the Act into two parts – a filing
requirement and an approval requirement – especially since section 26 of the
Act would reintroduce the approval requirement.
[17]
As
a result, it does not seem to me that there is any basis on which to interfere
with the decision of the CRTC in relation to the agreements between Northwestel
and Bell Canada, Rogers and SaskTel. The CRTC should be afforded deference in
determining whether section 25 or section 29 of the Act will apply in any
particular situation.
Agreement with Primus
[18]
In
its letter to the CRTC dated August 26, 2011, Telus raised the issue of whether
section 25 of the Act would apply to four agreements, one of which was the
agreement between Northwestel and Primus. In the agreement between Northwestel
and Primus, Primus agreed to pay certain undisclosed amounts for 1-800 traffic
originating in Northwestel’s western and eastern areas. The CRTC held that
since Primus was a reseller (and not a carrier), section 29 of the Act did not
apply to that agreement. That decision was not challenged by Telus. However,
the CRTC did not address the issue of whether section 25 of the Act would apply
in relation to the amounts that would be paid by Primus under this agreement.
Section 29 of the Act applies if there is an agreement between a “Canadian
carrier” and “another telecommunications common carrier”. However, section 25
of the Act applies if a Canadian carrier (in this case, Northwestel) provides a
telecommunication service without identifying the person to whom the service is
provided. Therefore the rationale for not applying section 29 of the Act (that
Primus was not a carrier) would not apply to section 25 of the Act since
Northwestel is a Canadian carrier.
[19]
Since
section 29 of the Act did not apply, there is also no argument that two
approvals would be required under the Act if section 25 of the Act were to
apply to the amounts to be paid by Primus to Northwestel.
[20]
There
was also no indication that any determination had been made under section 34 of
the Act in relation to any telecommunication service to be provided by
Northwestel to Primus that would have provided that section 25 of the Act did
not apply to the amounts to be paid by Primus to Northwestel for such service.
Accordingly the matter should be referred back to the CRTC to determine whether
section 25 of the Act should apply to the amounts to be paid by Primus under
its agreement with Northwestel. The CRTC should consider whether it will
require any additional submissions from Telus, Northwestel or Primus in
relation to this matter.
Conclusion
[21]
I
would therefore dismiss the appeal, with costs, in relation to the agreements
between Northwestel and Bell Canada, Rogers, and SaskTel. I would refer the
matter back to the CRTC in relation to the agreement between Northwestel and
Primus for a determination by the CRTC with respect to whether section 25 of
the Act applies to the amounts to be paid under this agreement.
“Wyman
W. Webb"
“I
agree
Pierre Blais C.J.”
“I
agree
Robert M. Mainville J.C.A.”
Appendix
to File A-309-12
dated February 15, 2013
Excerpts from section 2 of the Telecommunications Act S.C. 1993, c. 38
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“telecommunications” means the emission,
transmission or reception of intelligence by any wire, cable, radio, optical
or other electromagnetic system, or by any similar technical system;
“telecommunications common carrier” means a person
who owns or operates a transmission facility used by that person or another
person to provide telecommunications services to the public for compensation;
“telecommunications facility” means any facility,
apparatus or other thing that is used or is capable of being used for
telecommunications or for any operation directly connected with
telecommunications, and includes a transmission facility;
“telecommunications service” means a service
provided by means of telecommunications facilities and includes the provision
in whole or in part of telecommunications facilities and any related
equipment, whether by sale, lease or otherwise;
“telecommunications service provider” means a person
who provides basic telecommunications services, including by exempt
transmission apparatus;
“transmission facility” means any wire, cable,
radio, optical or other electromagnetic system, or any similar technical
system, for the transmission of intelligence between network termination
points, but does not include any exempt transmission apparatus.
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« télécommunication » La transmission,
l’émission ou la réception d’information soit par système électromagnétique,
notamment par fil, câble ou système radio ou optique, soit par tout autre
procédé technique semblable.
« entreprise de télécommunication »
Propriétaire ou exploitant d’une installation de transmission grâce à
laquelle sont fournis par lui-même ou une autre personne des services de
télécommunication au public moyennant contrepartie.
« installation de télécommunication »
Installation, appareils ou toute autre chose servant ou pouvant servir à la
télécommunication ou à toute opération qui y est directement liée, y compris
les installations de transmission.
« service de télécommunication » Service
fourni au moyen d’installations de télécommunication, y compris la fourniture
— notamment par vente ou location — , même partielle, de celles-ci ou de
matériel connexe.
« fournisseur de services de
télécommunication » La personne qui fournit des services de télécommunication
de base, y compris au moyen d’un appareil de transmission exclu.
« installation de transmission » Tout
système électromagnétique — notamment fil, câble ou système radio ou optique
— ou tout autre procédé technique pour la transmission d’information entre
des points d’arrivée du réseau, à l’exception des appareils de transmission
exclus.
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