Date: 20040305
Docket: 04-A-5
Citation: 2004 FCA 96
CORUM: NOËL J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
FEDERATION OF CANADIAN MUNICIPALITIES,
CITY OF EDMONTON and CITY OF CALGARY
Applicants
and
ALLSTREAM CORP., VIDEOTRON TELECOM LTEE, BELL CANADA, TELUS
COMMUNICATIONS INC., CANADIAN CABLE TELEVISION ASSOCIATION, LONDONCONNECT INC., FCI BROADBAND, CALL-NET ENTERPRISES INC., and
FRANCOIS MENARD
Respondents
"Dealt with in writing without appearance of parties."
Order delivered at Ottawa, Ontario, on March 5, 2004.
REASONS FOR ORDER BY: EVANS J.A.
CONCURRED IN BY: NOËL J.A.
SHARLOW J.A.
Date: 20040305
Docket: 04-A-5
Citation: 2004 FCA 96
CORUM: NOËL J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
FEDERATION OF CANADIAN MUNICIPALITIES,
CITY OF EDMONTON and CITY OF CALGARY
Applicants
and
ALLSTREAM CORP., VIDEOTRON TELECOM LTEE, BELL CANADA, TELUS
COMMUNICATIONS INC., CANADIAN CABLE TELEVISION ASSOCIATION, LONDONCONNECT INC., FCI BROADBAND, CALL-NET ENTERPRISES INC., and
FRANCOIS MENARD
Respondents
REASONS FOR ORDER
EVANS J.A.
[1] I have before me a motion by the applicants pursuant to rule 369 of the Federal Court Rules, 1998 for leave to appeal from CRTC, Decision 2003-82, dated December 4, 2003. Identical motions have been made by the applicants in Court files 04-A-4 and 04-A-7 in respect of the same decision. The reasons given for the disposition of this motion are applicable to the other two motions, and a copy will be placed in Court files 04-A-4 and 04-A-7.
[2] The CRTC stated in Decision 2003-82 that, while it could not direct the parties to existing municipal access agreements ("MAAs") to bring them into line with guidelines that it had issued in an earlier case, it was
prepared to consider applications from Canadian carriers seeking to establish that municipal consent was not obtained on terms acceptable to the carrier with the onus on the Canadian carrier applying to the Commission to establish that the signed MAA does not represent proof that the Canadian carrier has obtained, on terms acceptable to it, the consent of the municipality to construct a transmission line.
[3] The CRTC indicated in its reasons that the circumstances in which it could conclude that a MAA did not represent proof that the carrier had obtained consent on terms acceptable to it were not limited to "mistake, duress, and inequality of bargaining power". It also noted that municipalities had expressed concerns about bad faith bargaining by carriers and, consequently, would
consider all of the circumstances that led to the signing of the MAA, including the parties' intent and their relative bargaining power at the time.
[4] The applicants submit that the CRTC has no statutory authority to review and amend existing access contracts between municipalities and carriers, and that a statutory provision conferring such a power would be unconstitutional.
[5] Whatever merit there may be in these arguments, a matter on which I express no opinion, I agree with the submissions made on behalf of the respondent, Allstream Corp., that leave to appeal should be denied on the ground of prematurity.
[6] The CRTC did not indicate whether it could review a MAA on grounds that would not render it legally invalid or unenforceable nor, more importantly, did it decide what remedy it could grant if it found that a particular MAA did not prove that the carrier had obtained consent on terms acceptable to it. Rather than attempting to answer abstract questions about the existence and scope of the CRTC's power with respect to existing and valid contracts, the Court should wait until it has before it a concrete case and a reasoned decision by the CRTC explaining the legal basis of its decision and the relevant regulatory context.
[7] I appreciate that denying leave to the applicants at this stage may put the parties to the expense of a hearing before the CRTC, with the possibility that, on appeal, it might be held that the CRTC had no legal authority to grant the remedy that it did. Nonetheless, in my opinion, the interests of the administration of justice are better served in this case by not granting leave before the issues have crystallised.
[8] For these reasons, the motion for leave to appeal will be dismissed with costs.
"John M. Evans"
J.A.
"I agree
Marc Noël J.A."
"I agree
K. Sharlow J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: 04-A-5
STYLE OF CAUSE: FEDERATION OF CANADIAN MUNICIPALITIES,
CITY OF EDMONTON and CITY OF CALGARY v. ALLSTREAM CORP., VIDEOTRON TELECOM LTEE, BELL CANADA, TELUS COMMUNICATIONS INC., CANADIAN CABLE TELEVISION ASSOCIATION, LONDONCONNECT INC., FCI BROADBAND, CALL-NET ENTERPRISES INC., and
FRANCOIS MENARD
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: EVANS J.A.
DATED: MARCH 5, 2004
WRITTEN REPRESENTATIONS BY:
|
Christian S. Tacit
|
FOR THE APPLICANTS
|
|
Michael Koch
Dina Graser
Willie Grieve
|
FOR THE RESPONDENT ALLSTREAM CORP.
FOR THE RESPONDENT TELUS
|
SOLICITORS OF RECORD:
|
NELLIGAN O'BRIEN PAYNE
Ottawa, Ontario
|
FOR THE APPLICANTS
|
|
GOODMANS LLP
Toronto, Ontario
TELUS
Edmonton, Alberta
|
FOR THE RESPONDENTS ALLSTREAM CORP.
FOR THE RESPONDENT TELUS
|
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