Date: 19991221
Docket: 99-A-49
PRESENT: The Honourable Mr. Justice Marc Noël
BETWEEN:
COGECO CABLE INC.
Applicant
- and -
CANADIAN ASSOCIATION OF INTERNET PROVIDERS (CAIP);
MANITOBA TELECOM SERVICES INC. on behalf of
MTS COMMUNICATIONS INC.;
TELUS COMMUNICATIONS INC. AND BC TEL; NB TEL INC on behalf of itself and MARITIME TEL & TEL LIMITED AND ISLAND TELECOM INC
Respondents
Heard at Ottawa, Ontario on Monday, December 20, 1999
Order delivered at Ottawa, Ontario on Tuesday, December 21, 1999
| REASONS FOR ORDER BY: NOËL J.A. |
Date: 19991221
Docket: 99-A-49
PRESENT: The Honourable Mr. Justice Marc Noël
BETWEEN:
COGECO CABLE INC.
Applicant
- and -
CANADIAN ASSOCIATION OF INTERNET PROVIDERS (CAIP);
MANITOBA TELECOM SERVICES INC. on behalf of
MTS COMMUNICATIONS INC.;
TELUS COMMUNICATIONS INC. AND BC TEL; NB TEL INC on behalf of itself and MARITIME TEL & TEL LIMITED AND ISLAND TELECOM INC
Respondents
REASONS FOR ORDER
NOËL J.A.
[1] Cogeco Cable Inc. ("Cogeco") has filed an application for leave to appeal against a decision of the Canadian Radio-Television and Telecommunications Commission ("CRTC") rendered on September 14, 1999, ("TD 99-11") pursuant to section 64 of the Telecommunications Act , S.C. 1993, c. 38 (the "Act"). It now seeks an interim stay of this decision pending the disposition of its application for leave to appeal which itself embodies a request for a stay in the event that leave be granted.
[2] TD 99-11 requires Cogeco to make available to its competitors, 90 days from the date of the decision, its higher speed retail Internet Service ("retail IS") for resale at a 25% discount from the lowest retail IS rate charged by Cogeco to its cable customers during any one month period. As a result, Cogeco has had to make its retail IS available to its competitors at a 25% discount since December 13, 1999.
[3] In addition to seeking leave to appeal from the foregoing decision, Cogeco filed with the CRTC on October 20, 1999, an application to review and vary TD 99-11 pursuant to Part VII of the CRTC Telecommunications Rules of Procedure and section 62 of the Act. Cogeco further requested that the CRTC stay TD 99-11. The next day, a letter was sent to the Registry of this Court advising that aspects of Cogeco"s outstanding application may become moot as a result of the review proceedings initiated before the CRTC.
[4] Confronted with the two remedies being pursued by Cogeco, the respondents to the Motion for Leave to Appeal filed notices of motion on November 1, 2 and 3, 1999, requesting extensions of time to file their memoranda of fact and law pending the outcome of the application to vary. In the event that Cogeco"s stay application was to proceed independently before that time, the respondents sought directions that the matter of the stay be addressed by separate memoranda.1
[5] On December 10, 1999, the CRTC issued a decision in respect of Cogeco"s application to review and vary TD 99-11. The CRTC denied the application and the incidental request for a stay.
[6] Four days later, Cogeco applied before this Court, on an urgent basis, for an interim stay of the implementation of TD 99-11 pending the disposition of its leave application. This is the application now before me.
[7] In order to succeed, Cogeco must establish that its leave application raises a serious issue; that it will suffer irreparable harm if the stay is not granted; and that the balance of inconvenience favours the grant of a stay.2
[8] I accept from a cursory examination of Cogeco"s leave application that it is not frivolous or vexatious and that this suffices to establish a serious issue for present purposes.3 I also accept that in the absence of a stay, Cogeco may suffer some economic losses which it may not be able to recover and that, in that sense, irreparable harm has been established.4
[9] It is also apparent however from the record before me that public interest requires that the decision of the CRTC be implemented in a timely fashion. The CRTC noted in its refusal to reconsider its prior decision that the impugned order was made for the purpose of allowing competition in the market for internet services and that time was of the essence.5 At this stage, I must assume that irreparable harm will result from a public interest perspective if an interim stay should be granted.
[10] Faced with two competing interests, I am compelled to weight the economic harm which will befall Cogeco if it continues to abide by TD 99-11 between now and the disposition of its leave application and the negative impact which an interim stay would have on the public interest which is inherent in the timely implementation of the decision in issue.
[11] On the one hand, the CRTC has concluded that internet service providers had to have access to cable carrier facilities to provide their own competitive retail high speed internet service. This step was thought to be conducive to the establishment of a competitive environment and the CRTC has since expressed the view that the timely implementation of its decision is essential to the achievement of this goal.6
[12] On the other hand, Cogeco has established that it stands to suffer economic losses during the interim period. However, such losses have not been quantified and have not been shown to affect its ongoing viability. In my view, the public interest in insuring that the decision of the CRTC is implemented in accordance with its terms far outweighs the economic loss which Cogeco stands to suffer based on the limited evidence which has been placed before me.
[13] I would add before closing that now that the CRTC has rendered its second decision, Cogeco must decide how it will proceed from here on end.7 In this respect, it is incumbent upon Cogeco to advise the Court and the respondents as to how it will deal with its outstanding leave application if it wishes that the matter move ahead without undue delay from this point on.
[14] The application will be dismissed with costs.
"Marc Noël"
J.A.
__________________
1By direction of the Court (Linden J.A.), the respondents" motions for time extensions were kept in abeyance pending the decision of the CRTC on Cogeco"s review application.
2R.J.R. MacDonald Inc. v. Canada (A.G.), [1999] 1 S.C.R. 311.
3Ibid at 337-340.
4Ibid at 342.
5CRTC decision dated December 10, 1999, Motion Record at 53-54.
6Ibid at 51 and 53.
7Will it amend its application for leave to incorporate the second decision, will it file a separate application for leave and consolidate it with the first, will it ignore the second decision altogether, etc?
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