Date: 20040914
Docket: A-86-04
Citation: 2004 FCA 295
CORAM: LÉTOURNEAU J.A.
NADON J.A.
EVANS J.A.
BETWEEN:
BELL CANADA
Appellant
and
ALLSTREAM CORP. (FORMERLY AT & T CANADA CORP. and
AT & T CANADA TELECOM SERVICES COMPANY), CALL-NET ENTERPRISES
INC., SPRINT CANADA INC. and FRANÇOIS MÉNARD
Respondents
Heard at Ottawa, Ontario, on September 14, 2004.
Judgment delivered from the Bench at Ottawa, Ontario, on September 14, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20040914
Docket: A-86-04
Citation: 2004 FCA 295
CORAM: LÉTOURNEAU J.A.
NADON J.A.
EVANS J.A.
BETWEEN:
BELL CANADA
Appellant
and
ALLSTREAM CORP. (FORMERLY AT & T CANADA CORP. and
AT & T CANADA TELECOM SERVICES COMPANY), CALL-NET ENTERPRISES
INC., SPRINT CANADA INC. and FRANÇOIS MÉNARD
Respondents
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario, on September 14, 2004)
EVANS J.A.
[1] This is an appeal under subsection 64(1) of the Telecommunications Act, S.C. 1993, c. 38, by Bell Canada from the order of the Canadian Radio-television Telecommunications Commission ("CRTC") in Telecom Decision CRTC 2003-63, dated September 23, 2003. That order was made in the course of an application by Bell for the approval of proposed tariffs for the rates, terms and conditions on which it supplied telecommunications services to 164 large-account customers, such as banks and airlines. The order requires Bell to disclose additional information about its contractual relations with its customers to support its tariff applications.
[2] Bell argues that the designated information is confidential to it and its customers and that its disclosure would cause prejudice to their competitive positions: subsection 39(1). Consequently, the CRTC may order disclosure only after it has considered "any representations from interested parties", as required by subsection 39(4).
[3] The CRTC considered representations made by Bell on the disclosure issue, but gave no notice to Bell's customers advising them that they also had a right to make representations opposing further disclosure. Bell says that the customers were entitled to notice because they are "interested parties" since they are directly affected by the CRTC's order to disclose their confidential information, including the terms of their contracts with Bell. Accordingly, Bell maintains, the CRTC's failure to give notice was a breach of the duty of fairness, the disclosure order was therefore erroneous in law, and Bell's appeal should be allowed.
[4] In our view, there is no merit to this appeal. As a general rule, a party may not attack a decision of an administrative tribunal for breach of the duty of fairness solely on the basis of the tribunal's failure to afford some other person their procedural rights. It is not sufficient that the person relying on the alleged procedural defect would have benefited if, as a result of the fair hearing given to the other person, the tribunal had made a different decision.
[5] When conferred on persons whose interests may be adversely affected by an administrative decision, procedural rights are designed primarily to protect the interests of the holders of the procedural rights. If those persons choose not to impugn a decision for a breach of their procedural rights, normally no one else can.
[6] In this case, Bell's customers have not sought intervener status in this appeal, nor initiated any other step in an attempt to obtain legal redress. Affidavits have been filed in connection with this appeal by some of the customers, describing the kinds of prejudice to them that might result from disclosure. However, none of the affiants states that, if they had had notice that the CRTC was considering ordering additional disclosure, they would have made submissions to it.
[7] Moreover, a person is expected to raise a procedural concern at the earliest reasonable opportunity, and not await the result of the proceeding. Although Bell was aware that the CRTC had not given notice to the customers before the CRTC made its decision to order additional disclosure, it did not insist at that time that a notice be issued to them to enable them to make representations.
[8] Having concluded that Bell may not base an appeal on the ground of an alleged breach of the duty of fairness owed by the CRTC to Bell's customers, we do not have to decide whether an appeal under subsection 64(1) or an application for judicial review would have been the appropriate proceeding in which customers could have raised the allegation that they were entitled to be given notice by the CRTC before it decided the disclosure issue. Nor do we have to decide whether the CRTC was under an obligation to give notice to the customers or, if it was, what form the notice had to take in order to comply with the duty of fairness.
[9] We would also observe that, even if the failure to give personal notices to the customers constituted a breach of the duty of fairness, the breach might have been cured by Bell's written submissions to the CRTC, which described the kinds of harm that it and they might suffer as a result of the disclosure of their confidential information. However, we need not decide this question either.
[10] For these reasons, the appeal will be dismissed with costs.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-86-04
STYLE OF CAUSE: BELL CANADA v. ALLSTREAM CORP.
ET AL.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 14, 2004
REASONS FOR JUDGMENT OF THE COURT (Létourneau, Nadon, Evans JJ.A.)
RENDERED FROM THE BENCH BY: Evans J.A.
APPEARANCES:
Ms. Patricia J. Wilson for the Appellant
Ms. Patricia Brady
Mr. Michael Koch for the Respondents Allstream Corp., Call-Ms. Dina Graser Net Enterprises Inc. and Sprint Canada Inc.
SOLICITORS OF RECORD:
Osler, Hoskin & Harcourt LLP for the Appellant
Ottawa, Ontario
Goodmans LLP for the Respondents Allstream Corp., Call-
Toronto, Ontario Net Enterprises Inc. and Sprint Canada Inc.
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