Date: 20120703
Docket: 12-A-23
Citation: 2012 FCA 203
Present: STRATAS
J.A.
BETWEEN:
L’ASSOCIATION DES COMPAGNIES DE
TELEPHONE
DU QUEBEC INC. AND THE ONTARIO
TELECOMMUNICATIONS
ASSOCIATION
Moving Parties
and
ATTORNEY GENERAL OF CANADA, ROGERS COMMUNICATIONS
PARTNERSHIP, COGECO CABLE INC.,
BRAGG COMMUNICATIONS INC.
(carrying on business as Eastlink),
CABLOVISION WARWICK INC., BELL ALLIANT REGIONAL COMMUNICATIONS,
BELL CANADA and TELUS COMMUNICATIONS COMPANY
Respondents
REASONS FOR ORDER
STRATAS J.A.
[1]
The
moving parties, L’Association des Compagnies de Téléphone du Québec Inc. and
the Ontario Telecommunications Association, have brought a motion for an order
staying certain decisions, directives and policies made by the
Canadian Radio-television and Telecommunications Commission.
[2]
The
respondents oppose the motion on the basis that the test in RJR-MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 has not been met. In
particular, they say that the moving parties have not established the existence
of irreparable harm and have not established that the balance of convenience is
in favour of granting a stay. The respondents also note that the moving parties
are associations and submit it is their members, not the associations
themselves, that will suffer irreparable harm, if any. To deal with that
submission, the moving parties have brought an additional motion, seeking to
add some of their members as moving parties.
[3]
The
respondents have also asserted a number of preliminary objections. For the
reasons that follow, I find that two of these preliminary objections are
well-founded and so I must dismiss the moving parties’ stay motion.
A. The
basic facts
[4]
Since
this Court is not dismissing the moving parties’ stay motion on its merits and
since it is possible that, as a result of these reasons, the moving parties may
apply to the Governor in Council for a stay, only a brief recounting of the
facts is necessary and appropriate.
(1) What
the CRTC has done
[5]
Over
the past year, the CRTC has made a number of decisions, directives and policies
that the moving parties say adversely affect their members: Telecom Regulatory
Policy CRTC 2011-291; Telecom Notice of Consultation, CRTC 2011-348; Telecom
Decisions CRTC 2011-733, 2012-35, 2012-36, 2012-37, 2012-38, 2012-39, 2012-40,
2012-41, 2012-42, 2012-43, 2012-44, 2012-45, 2012-46 and 2012-47.
(2) Effects
on the moving parties
[6]
The
moving parties say that these decisions, directives and policies expose their
members to greater competition and detrimentally change subsidies and other
payments they receive. As a result, their members and the public will suffer detrimental
effects. Further, they say that their members’ financial viability is at stake.
(3) The
moving parties’ appeals
[7]
Under
the Telecommunications Act, S.C. 1993, c. 38, “decisions” may be varied, rescinded or referred back to the CRTC by
way of petition to the Governor in Council under section 12 (collectively “appealed”). They may also be appealed to
this Court, with leave, on questions of law or jurisdiction (section 64).
“Decisions” are “determination[s] made by the Commission in any form” (section 2).
[8]
The moving parties have appealed only two decisions to the
Governor in Council: Telecom Regulatory Policy, CRTC 2011-291
and Telecom Decision CRTC 2011-733 (a decision that is not sought to be
stayed). These have not been appealed to this Court.
(4) The
moving parties’ motion to this Court
[9]
In
their motion in this Court, the moving parties seek a stay of all or part of
the decisions, directives and policies set out in paragraph 5, above. They ask
that the decisions, directives and policies – most of them not under appeal –
be stayed until the Governor in Council determines their appeal of Telecom
Regulatory Policy, CRTC 2011-291 and Telecom Decision CRTC 2011-733.
[10]
The
bottom line is that the moving parties seek a stay from this Court even though
the only appeals on the merits have been made to the Governor in Council.
B. Places
where the moving parties could seek a stay of the CRTC’s decisions
[11]
In
these circumstances, the moving parties had three places which they
could seek a stay of the CRTC’s decisions.
(1) The
CRTC
[12]
After
the CRTC makes a decision, an aggrieved party may ask the CRTC to stay it. The
CRTC exercises this jurisdiction under section 62 of the Telecommunications
Act. Among other things, that section allows it to “vary
any decision made by it.”
[13]
Although
the CRTC often describes its power as a power to grant stays, in law it is
really varying the effective date of its decision. For example, a decision that
was to take immediate effect can be varied to come into effect at a future
time.
[14]
By
Practice Note dated February 28, 1997, the CRTC has announced that it will
consider stay applications by examining the test set out by the Supreme Court
of Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.,
[1987] 1 S.C.R. 100 and RJR-MacDonald Inc., supra.
[15]
In
this case, the moving parties asked the CRTC to stay the decisions, directives
and policies set out in paragraph 5, above. On March 30, 2012, the majority of
the CRTC (with one dissenter) refused the request. The majority found that the
moving parties had not established the existence of irreparable harm, nor had
they established that the balance of convenience was in favour of granting a
stay. The moving parties have brought a motion for leave to appeal to this
Court from the CRTC’s decision not to grant a stay. That motion remains pending
before this Court.
(2) The
Governor in Council
[16]
The
respondent, TELUS, submits that the Governor in Council has the power to stay
CRTC decisions. It says that this power exists under section 12 of the Telecommunications
Act.
[17]
I
agree with this submission. Section 12 provides as follows:
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12. (1) Within
one year after a decision by the Commission, the Governor in Council may, on
petition in writing presented to the Governor in Council within ninety days
after the decision, or on the Governor in Council’s own motion, by order,
vary or rescind the decision or refer it back to the Commission for
reconsideration of all or a portion of it.
|
12. (1) Dans
l’année qui suit la prise d’une décision par le Conseil, le gouverneur en
conseil peut, par décret, soit de sa propre initiative, soit sur demande
écrite présentée dans les quatre-vingt-dix jours de cette prise, modifier ou
annuler la décision ou la renvoyer au Conseil pour réexamen de tout ou partie
de celle-ci et nouvelle audience.
|
[18]
Many
CRTC decisions take effect on the date on which they were pronounced. The
Governor in Council can use section 12 to vary the time when they take effect.
In effect, they are stayed or suspended until the times specified by the
Governor in Council. The Governor in Council has exercised this power on a
number of occasions: P.C. 1981-2151, 1981-3382 and 1981-3456 (Telsat Canada)
(on its own motion); P.C. 1988-2386, 1989-1238 and 1990-620 (Call-Net)
(on its own motion); C.W.C. v. Canada (Attorney General), [1989] 1 F.C.
643 at paragraph 4 (in response to a party’s request).
(3) The Federal Court of Appeal
[19]
When a party brings a motion for leave to appeal to this Court
from a CRTC decision on the merits, on occasion the party also seeks a stay of
a decision of the CRTC until final judgment of this Court. Our jurisdiction to
grant such a stay is undoubted: sections 44 and 50 of the Federal Courts Act,
R.S.C. 1985, c. F-7 and see, e.g., North American Gateway Inc. v.
CRTC (1997), 74 C.P.R. (3d) 156 (F.C.A.). When a potential appellant or an
appellant is before our Court, our Court has the ability to protect that party
from the effects of a CRTC decision under challenge. We do so when the test in RJR-MacDonald,
supra, is met.
[20]
However, this case is different. As mentioned above, the moving
parties have appealed the CRTC decisions only to the Governor in Council, not
to this Court. Does this Court have any jurisdiction to entertain a stay motion
in circumstances where the only appeal is before the Governor in Council, not
this Court?
C. Preliminary
Objections
[21]
That question is one of the preliminary objections advanced by the
respondent TELUS. It answers that question in the negative. It adds that the
Governor in Council is an adequate alternative forum for advancing a stay.
Finally, it submits that the moving parties are barred from bringing a stay in
this Court as a result of issue estoppel caused by the CRTC’s decision not to
grant a stay.
[22]
In
my view, this Court can entertain a stay motion in
circumstances where the only appeal is before the Governor in Council, but there
are important qualifications to this. As will be seen, the circumstances in
which that jurisdiction can be exercised are rare.
[23]
This
Court does have the jurisdiction to grant injunctive relief – and stays are a
form of injunctive relief – concerning administrative proceedings and
decisions, even in circumstances where there is no proceeding before this
Court. A good example is Canada (Human Rights Commission) v. Canadian
Liberty Net, [1998] 1 S.C.R. 626. The basis for this jurisdiction is
section 44 of the Federal Courts Act. It provides as follows:
|
44.
In addition to any other relief that the Federal Court of Appeal or the
Federal Court may grant or award, a mandamus, an injunction or an order for
specific performance may be granted or a receiver appointed by that court in
all cases in which it appears to the court to be just or convenient to do so.
The order may be made either unconditionally or on any terms and conditions
that the court considers just.
|
44. Indépendamment de toute autre forme de réparation qu’elle peut
accorder, la Cour d’appel fédérale ou la Cour fédérale peut, dans tous les
cas où il lui paraît juste ou opportun de le faire, décerner un mandamus, une injonction ou une ordonnance d’exécution intégrale, ou
nommer un séquestre, soit sans condition, soit selon les modalités qu’elle
juge équitables.
|
[24]
An
alternative basis for this jurisdiction is section 50 of the Federal Courts
Act. It provides as follows:
|
50. (1) The Federal Court of Appeal
or the Federal Court may, in its discretion, stay proceedings in any cause or
matter
(a) on the ground that the claim is being
proceeded with in another court or jurisdiction; or
(b) where for any other reason it
is in the interest of justice that the proceedings be stayed.
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50. (1) La Cour d’appel fédérale et
la Cour fédérale ont le pouvoir discrétionnaire de suspendre les procédures dans
toute affaire :
a) au
motif que la demande est en instance devant un autre tribunal;
b) lorsque, pour
quelque autre raison, l’intérêt de la justice l’exige.
|
[25]
The
scope of this Court’s jurisdiction under these sections is unclear.
[26]
On
one view, this Court has “a general administrative
jurisdiction over federal tribunals” that “should not be interpreted in a
narrow fashion”: Canadian Liberty Net, supra at paragraph 36.
This is a “plenary jurisdiction” identical to that existing in superior courts
to “regulate disputes related to the control and exercise of powers of an
administrative agency,” for example through “injunctive
relief in certain urgent situations”: ibid.; Okwuobi
v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla
v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 257 at
paragraphs 50-53. However, although the Court has this jurisdiction, as a
discretionary matter it can decide not to exercise it. For example, there may
be other available, adequate and effective administrative avenues for relief: Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; Canada (Border
Services Agency) v. C.B. Powell Limited, 2010 FCA 61; D.J.M.
Brown and J.M. Evans, Judicial
Review of Administrative Action in Canada (looseleaf)
(Toronto: Canvasback Publishing, 2007) at paragraph 3:2000.
Alternatively, another forum may possess superior expertise or be better suited
to deciding the issue: Reza v. Canada, [1994] 2 S.C.R. 394. But the mere
existence of an alternative administrative scheme does not, by itself, oust
this Court’s jurisdiction: Canadian Liberty Net, supra; A.B.L.E.
Association for Betterment of Literacy & Education v. The Queen (1998),
52 D.T.C. 6668 at paragraph 7 (F.C.A), Canada (Minister of National Revenue)
v. Swiftsure Taxi Co., 2005 FCA 136 at paragraphs 3-6.
[27]
On another view, this Court’s jurisdiction is only “residuary,” a
word that does not necessarily mean the same thing as “other available,
adequate and effective administrative avenues for relief” in the authorities
mentioned above. See, e.g., Canadian Liberty Net, supra at
paragraph 41, where, apparently contrary to other passages in the judgment, it
is said that “no jurisdiction” should be found where another forum exists. See
also Okwuobi, supra at paragraph 1 and Brotherhood of
Maintenance of Way Employees Canadian Pacific Federation v. Canadian Pacific
Ltd.,
[1996] 2 S.C.R. 495 at paragraph 5. On this view, the
existence of another forum in which the relief could potentially be sought
could deprive this Court of jurisdiction, regardless of the circumstances.
[28]
Under either view, the Court’s jurisdiction to grant injunctive
relief can be ousted by a clear indication of statutory intention to exclude
it: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Okwuobi,
supra at paragraph 38; Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146 at
paragraphs 27-29. Even then, in exceptional
circumstances, such an ouster might be regarded as similar to a privative
clause and so it may be that this Court can still act, albeit deferentially,
under its constitutional jurisdiction founded on the rule of law: Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraphs 27-29. This
may be one of the bases for the emergency injunctive power discussed in Okwuobi,
supra.
[29]
Were it necessary to decide between these two views, I would
subscribe to the former view, the view that our jurisdiction is full and
plenary. This view maximizes this Court’s ability to react to unusual
circumstances while drawing upon the rich jurisprudence on adequate alternative
remedies to ensure that administrative regimes are respected and are allowed to
operate effectively. Also it is more in accord with the normal analytical
framework that applies in administrative matters. Under that framework, three
questions are to be asked:
● Jurisdiction. Does the Court have
jurisdiction? In other words, can it consider the matter placed before it?
● Discretionary bars. Do any discretionary
bars exist against exercising jurisdiction? In other words, even though it can
consider the matter placed before it, should it? The two matters mentioned in
paragraph 26, above – the existence of other available, adequate and effective
administrative avenues for relief and the existence of another forum which
possesses superior expertise or is better suited to deciding the issue – fall
to be considered here.
● Merits. How should the Court exercise its
jurisdiction? In other words, given that the Court can and should consider the
matter, what result on the merits should it reach?
In these reasons, I
shall follow this analytical framework.
D. Analysis
(1) Does the Court have jurisdiction?
[30]
In this case, the moving parties seek relief from the Governor in
Council under the provisions of the federal Telecommunications Act. In
these circumstances, sections 44 and 50 of the Federal Courts Act potentially
give this Court jurisdiction to grant a stay pending an appeal to the Governor
in Council.
[31]
The Telecommunications Act does not expressly exclude that jurisdiction.
There is only a restriction on appealing the merits of a CRTC decision to this
Court (see section 64).
[32]
Further, it cannot be said that that jurisdiction is impliedly or
necessarily excluded by the Telecommunications Act. By way of
illustration, suppose that a party that has received an adverse decision from
the CRTC and has a strong appeal from it. Also suppose that it will be gravely
and irreparably affected by it in the next three days. Finally, suppose that
the Governor in Council cannot meet within those three days to deal with the
party’s request for a stay. In my view, there is nothing in the Telecommunications
Act that would impliedly or necessarily require this Court to stand by and
let injustice happen in those urgent circumstances. See Okwuobi, supra
at paragraphs 51-53 (albeit in the context of superior courts).
[33]
Therefore, in my view, this Court has jurisdiction to entertain
the moving party’s stay motion.
(2) Do any discretionary bars exist against exercising
jurisdiction?
[34]
TELUS submits that the moving parties are barred by way of issue
estoppel from seeking a stay from this Court. The estoppel is said to arise
from the CRTC’s dismissal of the moving parties’ application for a stay before
it. TELUS submits that the CRTC applied the RJR-MacDonald test and this
is the same test that must be applied on the motion in this Court.
[35]
In order for issue estoppel to constitute a complete bar to this
Court’s consideration of the moving parties’ stay motion, the issues considered
by the CRTC must be the same as those to be considered in this Court. Here,
although there is substantial overlap in the issues – and indeed, the CRTC uses
the same test that this Court uses on stay motions – the issues are not
necessarily identical. The CRTC is acting under its power in section 62 of the Telecommunications
Act to vary one of its decisions. This Court does not vary the CRTC’s
decision but rather exercises its own original jurisdiction to stay it under
either of sections 44 and 50 of the Federal Courts Act. Different
considerations can potentially come to bear on these two different matters: Mylan
Pharmaceuticals ULC v. AstraZeneca Canada, Inc., 2011 FCA 312.
[36]
A more fundamental impediment to the application of issue estoppel
in these circumstances is the lack of finality associated with the CRTC’s
decision not to grant the moving parties a stay. As mentioned in paragraph 15,
above, the moving parties have brought a motion seeking leave to appeal that
decision to this Court under subsection 64(1) of the Telecommunications Act.
[37]
I would add that although issue estoppel is not a complete bar to
this Court’s consideration of the moving parties’ stay motion, the doctrine of
abuse of process may prevent certain matters from being relitigated: Toronto
(City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. It is not
necessary to consider this further, as two other discretionary bars exist to
foreclose this Court’s consideration of the moving parties’ stay motion.
[38]
The first discretionary bar is the fact that the Governor in
Council is an adequate, available forum in which the moving parties can seek
their stay: Matsqui Indian Band, supra; C.B. Powell Limited, supra; Brown
and Evans, supra at paragraph 3:2000. As mentioned in paragraph 18,
above, the Governor in Council has the power to stay CRTC decisions and has shown
a willingness to exercise that power.
[39]
Although the Governor in Council is an adequate, available forum
for obtaining the remedy they seek, the moving parties have not availed
themselves of it. Indeed, their petition to the Governor in Council does not
request a stay, nor does it even ask the Governor in Council to speed up its
decision-making.
[40]
The moving parties submitted that the Governor in Council is not
an adequate forum because it is ill-suited to the receipt of complicated
evidence, fact-finding and legal submissions. This is essentially a factual
submission made without evidence as to the nature of the Governor in Council’s
consideration of such matters or its inadequacy or inability to act. In any
event, the cases show that the Governor in Council is sometimes required under
statutes to consider complicated evidence, fact-finding and legal submissions
alongside policy considerations, and it does so: e.g., Globalive
Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 194; League
for Human Rights of B'Nai Brith Canada v. Odynsky, 2010 FCA 307.
[41]
In a future case, conditions of urgency or emergency might be
demonstrated that would prompt this Court not to apply this discretionary bar
and to grant relief, at least until the Governor in Council can consider the
matter. In another future case, the Governor in Council, although requested to
stay a CRTC decision, might be dilatory in reacting to the request and this
Court’s intervention might be necessary in the circumstances. In another future
case, proof might be supplied that shows that the Governor in Council is not an
adequate, available forum for the granting of relief.
[42]
But the present case is quite different. For one thing, conditions
of urgency or emergency sufficient to overcome this Court’s view on the
discretionary bar have not been demonstrated. I am not convinced that the financial
viability of the moving parties’ members is at imminent peril. The moving
parties have proceeded at a fairly sedate pace, bringing their stay motion in
this Court well after the CRTC decisions were made.
[43]
The second discretionary bar is this Court’s ability to decline to
hear a matter but rather to refer it to another body with jurisdiction in
circumstances where that body is more appropriate or better suited to decide
the matter: Reza, supra. In this case, that body is the Governor
in Council.
[44]
The moving parties’ appeal on the merits of the CRTC’s decisions
has been made to the Governor in Council under section 12 of the Telecommunications
Act. In these circumstances, this Court would be meddling in a matter that
is really for the Governor in Council to decide. Further, in addition to the
sorts of factors described in RJR-MacDonald, supra that the
Governor in Council may consider, there may also be relevant policy
considerations. As a policy body, the Governor in Council can consider these.
[45]
In a future case, a party might demonstrate conditions of urgency,
emergency or other compelling circumstance that might overcome the factors
supporting a referral of the matter to the Governor in Council. But that has
not been demonstrated here.
[46]
Therefore, I apply these two discretionary bars against the moving
parties’ stay motion. The motion must be dismissed.
(3) The merits of the stay application
[47]
It is not necessary to consider the merits of the stay motion. It
is also not necessary to deal with the moving parties’ motion to add some of
their members as moving parties.
E. Disposition
[48]
For the foregoing reasons, I shall dismiss the stay motion with
costs.
"David Stratas"
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