Date:
20120821
Docket: A-152-12
Citation: 2012 FCA 222
Present: STRATAS
J.A.
BETWEEN:
BCE
INC., BELL CANADA and BELL MOBILITY INC.
Appellants
and
TELUS
COMMUNICATIONS COMPANY
Respondent
REASONS FOR ORDER
STRATAS J.A.
[1]
Before
the Court are two motions. These motions have been brought within this appeal.
The appeal is from Decision 2011-765 of the CRTC, dated December 12, 2011.
[2]
In
order to understand the two motions, a brief summary of the events leading up
to the motions is needed.
A. Decision
2011-765, the decision under appeal
[3]
In
Decision 2011-765, the CRTC found that Bell gave itself an “undue preference”
contrary to an earlier CRTC order. Bell did this by negotiating for itself the
exclusive right to broadcast National Hockey League and National Football
League programming on mobile devices.
[4]
As
part of Decision 2011-765, the CRTC ordered that Bell file a follow-up report
with the CRTC “outlining the steps it would take to ensure TELUS access to the
programming.”
B. Post-decision events
before the CRTC
[5]
As
required by the CRTC, Bell filed a follow-up report dated January 31, 2012.
[6]
The
CRTC considered Bell’s follow-up report. It issued a decision dated February
29, 2012 entitled “Follow-up Report to Broadcasting Decision CRTC 2011-765”
(the “CRTC’s later decision”).
[7]
In
the CRTC’s later decision, it said it was satisfied with Bell’s follow-up
report.
C. Post-decision
events before this Court
[8]
Bell sought leave to
appeal Decision 2011-765 to this Court. This Court granted leave to appeal. The
appeal is now pending before this Court.
[9]
Shortly
after this Court granted leave to appeal, Bell brought a motion to this Court
for an order permitting it to include three documents in the appeal book as
fresh evidence: certain licence agreements, Bell’s follow-up report, and a
letter dated January 19, 2012 from the National Football League.
[10]
On
June 22, 2012, this Court dismissed Bell’s motion: 2012 FCA 191.
[11]
Among
other things, this Court was of the view that the licence agreements sought to
be adduced as fresh evidence could have been presented to the CRTC before it
made its decision. Accordingly, the licence agreements were ruled inadmissible.
[12]
As
for the other two documents, they both postdated Decision 2011-765 the decision
under appeal. Bell wanted them admitted as fresh evidence to show that if the
CRTC were aware of the facts in them, it would have decided differently. In its
ruling of June 22, 2012, this Court held that evidence of these facts could
have been presented to the CRTC before it made its decision. Accordingly, it
ruled that these two documents were also ruled inadmissible.
D. A new issue on appeal:
mootness
[13]
In
the motion materials now before the Court, TELUS says that the CRTC’s later decision
and Bell’s follow-up report render the appeal moot.
[14]
TELUS
has not given any detailed explanation why this is the case, nor in its
responding materials has Bell given any explanation why this is not the case.
[15]
Based
on the material before me, it would seem that mootness is now a new issue that
will be placed before the panel hearing this appeal.
E. The motions
[16]
In
support of the submissions on mootness that it wishes to make at the hearing of
the appeal, TELUS seeks an order admitting the CRTC’s later decision into
evidence. TELUS says that the CRTC’s later decision establishes mootness, and
could dispose of the appeal.
[17]
Bell consents to the
admission of the CRTC’s later decision on the condition that two other documents
also be admitted: an abridged copy of Bell’s follow-up report which led to the
CRTC’s later decision, and an abridged copy of the January 19, 2012 letter from
the National Football League. Bell alleges that these two documents are
interrelated with and necessary to understand the later decision. Accordingly, Bell has brought a motion seeking the admission of these two documents into the appeal.
[18]
In
response to Bell’s motion, TELUS takes no position on the admission of these
two documents. However, it draws the Court’s attention to statements Bell makes in its written submissions. Those statements suggest that Bell views the two
documents as being relevant to the merits of the appeal, as opposed to only the
mootness issue.
F. Analysis
[19]
Taking
the two motions together, and consistent with the foregoing summary, the
parties seek that three documents be admitted into this appeal:
(1)
an
abridged copy of Bell’s follow-up report;
(2)
the
CRTC’s later decision in response to that report; and
(3)
an
abridged copy of the January 19, 2012 letter from the National Football League.
[20]
It
is apparent that there is no real controversy here. There is a mootness issue
that the panel hearing the appeal will have to determine. The parties do not
take issue with the fact that these documents bear in some way upon the
mootness issue.
[21]
Accordingly,
this Court shall issue an order providing that these three documents shall be
included into the appeal book and be admissible on appeal only for the purposes
of the mootness issue.
[22]
I
underscore that these three documents shall be admissible only on the mootness
issue. In its order June 22, 2012, this Court ruled that Bell’s follow-up
report and the January 19, 2012 letter from the National Football League are
not admissible on the larger merits of the appeal of Decision 2011-765, the
decision under appeal. That ruling remains in effect and no cause has been
shown to depart from it.
[23]
As
for the CRTC’s later decision, it is also not admissible on the larger merits
of the appeal. No argument has been made to me that it is relevant to the
larger merits of the appeal. It is only relevant to the mootness issue.
[24]
These
three documents, which are admissible only for the purposes of the mootness
issue, are different in nature from the other documents in the appeal book,
which are admissible on the larger merits of the appeal of Decision 2011-765.
Therefore, the three documents should be filed in a separate appeal book
entitled “Additional documents relevant to the mootness issue only.”
[25]
Obviously,
nothing in these reasons shall be taken as expressing a view on the merits of
the mootness issue or the significance of any of the three documents.
G. Postscript
[26]
These
motions could have been avoided. If TELUS believed that post-decision
developments rendered this matter moot, it could have brought a motion,
returnable to the panel hearing the appeal, for an order dismissing the appeal
on account of mootness. In support of its motion, it could offer whatever
evidence it considered to be relevant to the motion. Bell could do likewise.
The evidence would appear in the parties’ motion records and be separate from
the evidence properly admissible on the larger merits of the appeal.
H. Disposition of the
motions
[27]
An
order shall issue granting the motions and admitting the three documents in
accordance with these reasons. I shall provide a deadline for the filing of the
agreement on contents of the appeal book, and thereafter the deadlines
specified under the Federal Courts Rules shall apply. Costs shall be
reserved to the panel hearing the appeal.
"David
Stratas"
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