Date: 20100427
Docket: A-374-09
Citation: 2010 FCA 115
CORAM: BLAIS C.J.
NOËL
J.A.
STRATAS
J.A.
BETWEEN:
ROGERS CABLE
COMMUNICATIONS INC.
Appellant
and
BELL ALIANT REGIONAL COMMUNICATIONS
LIMITED PARTNERSHIP
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Toronto, Ontario, on April 27, 2010)
STRATAS_J.A.
[1]
This is an appeal, with leave, of Decision
2009-187 of the Canadian Radio-Television and Telecommunications Commission,
and to the extent necessary, three related decisions that the Commission
rendered earlier.
[2]
The issue in this appeal is whether the
Commission correctly declined jurisdiction in the matters before it. A further
issue raised by the appellant is whether the Commission in its decisions should
have made certain observations or comments concerning the parties’ contractual
rights.
[3]
The facts necessary to deal with the
jurisdictional issue can be simply stated.
[4]
The appellant and the respondent entered into a
five year support structure licence agreement. Under this agreement, the
respondent granted the appellant permits allowing it to use certain support
structures, known commonly as telephone poles or power poles, in New Brunswick.
[5]
The parties agree that the support structure
licence agreement between the appellant and the respondent was in the form
mandated by the Commission in its National Services Tariff Item 901.
[6]
Under the National Services Tariff, a “support
structure” is defined as follows:
The supporting structures, including poles…which the Company [in
this case the respondent] owns or which the Company does not own but for which
it has the right to grant Permits thereto.
[7]
The parties also agree that the respondent did
not own the support structures. Instead, it only had the right to grant permits
for the use of the support structures. New Brunswick Power (N.B. Power), a
provincially-regulated utility, owned the support structures and granted the
respondent the right to grant permits to third parties under a joint use
agreement. As long as this was the case, there were “support structures” under
the Commission’s National Services Tariff that the Commission could regulate.
[8]
Further, the parties also agree that the
provision of support structures by the respondent, a federally-regulated
carrier, was a federally-regulated “telecommunications service” under section 2
of the Telecommunications Act, S.C. 1993, c. 38.
[9]
Things changed in January 2004. At that time,
N.B. Power revoked the respondent’s right to grant permits to third parties,
such as the appellant, for the use of its power poles. This happened during the
currency of the five year support structure licence agreement.
[10]
The result of this was that the appellant had to
pay N.B. Power, the provincially-regulated utility, its provincially-regulated
rate for the use of its power poles, a rate that was substantially higher than
the respondent’s rate.
[11]
In all, there were four Commission decisions
raised in this appeal. The Commission’s last decision, CRTC 2009-187 merely
confirmed CRTC 2008-62, which reconsidered and, to some extent, amended two
earlier decisions. In that decision, the Commission declined jurisdiction, and
in doing so made mention of the parties’ contractual obligations.
[12]
We agree with the jurisdictional rulings made by
the Commission. When N.B. Power revoked the respondent’s right to grant
permits, “support structures” were no longer being provided by the respondent,
a federally-regulated carrier, and so there was no “telecommunications service”
within section 2 of the Act. Instead, a provincially-regulated utility,
N.B. Power, was offering the use of its provincially-regulated power poles.
Under Barrie Public Utilities v. Canadian Cable Television Association,
[2003] 1 S.C.R. 476, the Commission does not have the jurisdiction to regulate
the terms of access to power poles owned by a provincially-regulated utility.
The Commission so found, and correctly held that it lost jurisdiction.
[13]
In our view, the Commission, like all
administrative tribunals, was entitled to rule on its own jurisdiction, in
particular, in this case, whether the respondent still had the right to grant
permits concerning N.B. Power’s power poles. It was entitled to examine the
agreements among the parties to determine that issue, but only for the purpose
of determining its jurisdiction, not determining the rights and obligations of
the parties under the common law of contract. To the extent that the comments
and observations made by the Commission in its decisions can be read as doing
this, they were beyond its jurisdiction and should be disregarded.
[14]
Accordingly, for the foregoing reasons, the
appeal will be dismissed with costs.
“David
Stratas”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-374-09
(APPEAL FROM A DECISION OF THE CANADIAN
RADIO-TELEVISION AND COMMUNICATIONS CANADA DATED APRIL 8, 2009, IN DOCKET NO. 2009-187)
STYLE OF CAUSE: ROGERS CABLE COMMUNICATIONS INC. v. BELL ALIANT REGIONAL COMMUNICATIONS
LIMITED PARTNERSHIP
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 27, 2010
REASONS FOR JUDGMENT
OF THE COURT BY: BLAIS C.J.
NOËL J.A.
STRATAS
J.A.
DELIVERED FROM THE BENCH BY: STRATAS J.A.
APPEARANCES:
|
Timothy Pinos
Jason Beitchman
Leslie Milton
|
FOR THE APPELLANT
|
|
Daniel
Campbell, Q.C.
|
FOR THE RESPONDENT
|
|
Regan Morris
|
FOR THE CANADIAN RADIO-TELEVISION AND
COMMUNICATIONS CANADA
|
SOLICITORS OF RECORD:
|
Cassels Brock and
Blackwell LLP
Barristers and Solicitors
Toronto, Ontario
|
FOR THE APPELLANT
|
|
Cox and Palmer
Halifax, Nova Scotia
|
FOR THE
RESPONDENT
|
|
Robert A. Morin
Secretary General CRTC
Gatineau, Quebec
|
FOR THE
CANADIAN RADIO-TELEVISION AND COMMUNICATIONS CANADA
|
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