Date: 20070313
Docket: A-600-05
Citation: 2007 FCA 106
CORAM: SEXTON
J.A.
EVANS
J.A.
SHARLOW
J.A.
BETWEEN:
CITY OF EDMONTON
Appellant
and
360NETWORKS CANADA LTD./LONDON CONNECT INC., ALIANT
TELECOM INC., BELL CANADA, CALL-NET
ENTERPRISES INC.,
CANADIAN CABLE TELECOMMUNICATIONS
ASSOCIATION,
CITY OF CALGARY, CITY OF OTTAWA, CITY OF TORONTO,
CITY OF VANCOUVER, FEDERATION OF CANADIAN
MUNICIPALITIES, FUTUREWAY COMMUNICATIONS
INC., MTS
ALLSTREAM INC., (formerly ALLSTREAM
CORPORATION),
SASKATCHEWAN TELECOMMUNICATIONS (SASKTEL),
and
TELUS COMMUNICATIONS INC.
Respondents
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1]
This is an
appeal by the City of Edmonton from a decision of the
Canadian Radio-television Communications Commission (“CRTC”), dated June 17,
2005 (Telecom Decision 2005-36). In this decision, the CRTC determined the
method for calculating the fee payable to Edmonton by MTS Allstream Inc. (“Allstream”), a
telecommunications carrier, for the use of light rail transit (“LRT”) lands to house
its fibre optic transmission lines. This appeal raises three questions of
principle.
[2]
The first is
whether a carrier may apply to the CRTC for permission to enter on municipal
land for the purpose of constructing, maintaining and operating a transmission
line after it has been installed with the consent of the municipality. Edmonton says that no provision of the
Telecommunications Act, S.C. 1993, c. 38 (“Act”) confers jurisdiction on the
CRTC to entertain such an application from a carrier. In contrast, the Act
expressly authorizes the CRTC to entertain applications from municipalities
seeking redress against the conduct of carriers.
[3]
The second
question concerns the interpretation of the words “a highway and other
public place” in section 43 of the Act. This phrase defines the lands
that are subject to carriers’ right of entry for the purpose of constructing,
maintaining and operating transmission lines. Edmonton argues that, because of its long
legislative history in the Act’s predecessors, the phrase, “other public
place”, should be interpreted narrowly to mean places with the essential
characteristics of a highway. It says that the CRTC committed an error of law
when it adopted a broader approach to defining “public place” and concluded
that the inside of buildings owned by a municipality and the walls of LRT tunnels
constituted a “public place”.
[4]
The third
is whether the CRTC abused its discretion to impose conditions on the grant of
permission when, relying on the methodology established in Ledcor/Vancouver
– Construction, operation and maintenance of transmission lines in Vancouver,
Decision CRTC 2001-23 (“Ledcor”), it imposed a fee calculated on the
basis of the costs caused by the presence of Allstream’s lines on municipal
land. Edmonton says that, as the owner of
the land, it is entitled to an occupancy rent base on fair market value.
[5]
In my
opinion, the CRTC committed no reviewable error in reaching its decision. Accordingly,
I would dismiss Edmonton’s appeal.
B. FACTUAL BACKGROUND
[6]
In 1997,
Allstream’s predecessor (which I shall also refer to in these reasons as Allstream)
entered into two agreements with Edmonton.
First, the Municipal Access Agreement (“MAA”), gave Allstream access to, and
the right to enter on and break up, highway rights of way owned by Edmonton, in
order to construct, maintain and operate a communications network to serve
office buildings along, or adjacent to, the network.
[7]
The MAA
provided that Allstream would pay a fee of $20.00 a metre for the use and
occupation of highway rights of way in the downtown core. This was the fee that
an Edmonton bylaw required carriers to
pay. The MAA expired on May
29, 2002.
[8]
Second, the
LRT Agreement gave Allstream access to LRT lands for similar purposes; it defined
the LRT lands as including LRT tunnels, stations, and attached pedways and
stairwells. The parties negotiated a fee formula for the LRT lands which took
into account both causal costs and an occupancy rent. Although the bylaw fixing
the fee at $20.00 a metre did not apply to the LRT lands, Edmonton regarded the fee in the LRT
Agreement as substantially equivalent to that contained in the bylaw.
[9]
Pursuant
to the LRT Agreement, Allstream installed approximately 5,000 metres of fibre
optic transmission lines, which were housed in metal pipes anchored to the
walls of the LRT tunnels, LRT stations and pedways. This represented about 20%
of Allstream’s network in Edmonton. The Agreement provided that
Allstream would remove its facilities on the expiry of the Agreement, that is,
March 27, 2002, unless Allstream exercised its option to extend it, with a
mechanism for calculating the fees payable to Edmonton.
[10]
From
Edmonton’s point of view, an advantage of the LRT Agreement was that
transmission lines could be installed on LRT lands without the disruption to
traffic caused when highways are dug up for this purpose. The advantages of the
Agreement for Allstream are that access to the LRT tunnels is easy and
inexpensive, and the lines are protected from the weather, considerations which
make the LRT lands particularly valuable. However, there was no evidence that
use of the LRT lands was necessary to enable Allstream to serve any of
its customers.
[11]
In January
2001, just over a year before the LRT Agreement was due to expire, the CRTC
issued an important decision in a dispute between the City of Vancouver and Ledcor,
another telecommunications carrier, respecting the conditions on which it would
be granted access to certain street-crossings in Vancouver.
[12]
The CRTC
determined that the fee payable by Ledcor should be limited to any incremental
causal costs incurred by Vancouver as a result of the grant of access
to Ledcor. The CRTC stated in its reasons that, while its decision was based on
the particular facts of the case, the causal costs principle would assist municipalities
and carriers in negotiating the terms on which municipal consent would be given
for carriers to construct, maintain and operate transmission lines on municipal
property. This Court dismissed an appeal from the decision: Federation of Canadian
Municipalities v. AT&T Canada Corp., 2002 FCA 500, [2003] 3 F.C. 379,
leave to appeal to S.C.C. refused, 29635 (September 4, 2003).
[13]
In
September 2001, Edmonton and Allstream started negotiations
for an extension of the agreements. They ultimately agreed all the terms and
conditions of a new MAA, consistent with the Ledcor principles, except
for the definition of the lands to be included within it. Edmonton refused to
extend the MAA to the LRT lands, on the ground that they were not “a highway or
other public place”, and the fees payable for their use were therefore not
subject to the jurisdiction of the CRTC or to the causal costs principle
applied in Ledcor.
[14]
On June
18, 2002, several months after the initial term of the LRT Agreement had expired,
Allstream advised Edmonton that it was not going to
exercise its option to renew, on the ground that the fees payable under the
renewal clause contravened the causal costs principle in Ledcor. On the
same day, Edmonton passed a resolution extending
to LRT lands the bylaw imposing an occupancy fee on carriers who ran
transmission lines on City property, and increasing the fee payable.
[15]
Despite
the expiry and non-renewal of the LRT Agreement, Allstream did not remove its
facilities from the LRT lands as required by the Agreement. Edmonton took no steps to enforce this
provision, because of the disruptive effect that this would have on Allstream’s
business and residential customers. Allstream continued to keep its lines in
place, and to have access to the LRT lands to operate and maintain its
equipment, for which, in the absence of an agreement, it paid no fee.
[16]
On June
23, 2003, Edmonton commenced proceedings in the
Alberta Court of Queen’s Bench to recover the amount which it claimed
that Allstream owed for continuing to keep its facilities on, and for having
access to, the LRT lands after the LRT Agreement had expired.
[17]
On July 9,
2003, Allstream made an application to the CRTC under Part VII of the Act,
requesting that it be granted access to the LRT lands for the purpose of constructing,
maintaining and operating transmission lines, and for an order imposing
conditions on its access in accordance with the causal costs principle
established in Ledcor.
C. DECISION OF THE CRTC
[18]
After fully
describing the written submissions made to it by the various parties, the CRTC
stated that the issue raised by Allstream was one of ongoing access to the LRT
lands. It analysed the parties’ arguments as follows.
[19]
First, Edmonton argued that sections 42-44 of
the Act confer jurisdiction on the CRTC only to determine an application by a
carrier to construct transmission lines on municipal property. Since Allstream
had already constructed lines pursuant to the LRT Agreement, the CRTC had no
jurisdiction over Allstream’s
application to resolve a dispute over the fee payable for the lines to remain
in place and for access to maintain and operate them. Edmonton had not threatened to remove the transmission
lines from the LRT lands.
[20]
The CRTC
rejected this argument, on the ground that such a narrow interpretation of the
provisions would lead to “absurd results”: at para. 62. It would prevent the
CRTC from entertaining an application by a carrier in the absence of any action
by the municipality to have the lines removed. However, if a carrier was
ordered to remove its lines, it could make an application to the CRTC for
permission to reconstruct the very same lines that it had been ordered to
remove.
[21]
Second, Edmonton submitted that the CRTC had
no jurisdiction to grant access and impose conditions, because the LRT lands
did not constitute “a highway or other public place” for the purpose of the
Act. The CRTC agreed that, since members of the public could not travel in
their own vehicles through the LRT tunnels, they were not a “highway”. However,
it rejected Edmonton’s argument that “other public place” should be interpreted
ejusdem generis, on the grounds that a list of one, “highway”, does
not establish a genus, and that the presence of the word, “other”,
indicates that Parliament intended “public place” to embrace types of property
different from a highway.
[22]
In the absence
of a statutory definition, the CRTC formulated criteria for determining whether
a given property was a “public place” for the purpose of sections 42-44 of the
Act: whether the lands were owned by a public body and used for public purposes,
and the degree of public access to them. Applying these criteria to the facts,
the CRTC concluded that the LRT lands were a “public place”, and that it had
jurisdiction to grant Allstream access to them, subject to conditions.
[23]
Third, the
CRTC held that it would be inappropriate to impose the occupancy fee of $20.00 a
metre proposed by Edmonton on the basis of its land
value formula. The CRTC noted that the fee agreed to by the parties in the renegotiated
MAA for access to municipal lands, other than the LRT lands, was consistent
with the causal costs principle in Ledcor, and was significantly less
than $20.00 a metre.
[24]
Because Edmonton had already incurred the costs
of constructing the tunnels, stations and pedways when it built them for the
purpose of the LRT, these costs were not attributable to Allstream’s constructing,
maintaining and operating its transmission lines on LRT lands. The CRTC ordered
the parties to negotiate a fee structure based on the Ledcor causal costs
principle, by calculating the future incremental costs to Edmonton of Allstream’s
access to the LRT lands for the purpose of constructing, maintaining and
operating transmission lines.
D. LEGISLATIVE FRAMEWORK
[25]
Sections
42-44 of the Telecommunications Act create a qualified right for
carriers to enter on public places in order to construct, maintain and operate
their transmission lines. These provisions also confer power on the CRTC to
grant carriers permission to construct lines, if they cannot obtain municipal consent
on terms acceptable to them, and to resolve complaints by municipalities about
carriers.
[26]
Subsection
42(1) confers wide powers on the CRTC, “in the exercise of its powers under
this Act”. This provision is ancillary to powers conferred on the CRTC by other
statutory provisions, rather than the grant of an independent jurisdiction.
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42(1)
Subject to any contrary provision in any Act other than this Act or any
special Act, the Commission may, by order, in the exercise of its powers
under this Act or any special Act, require or permit any telecommunications
facilities to be provided, constructed, installed, altered, moved, operated,
used, repaired or maintained or any property to be acquired or any system or
method to be adopted, by any person interested in or affected by the order,
and at or within such time, subject to such conditions as to compensation or
otherwise and under such supervision as the Commission determines to be just
and expedient.
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42(1)
Dans l’exercice des pouvoirs qui lui sont conférés par la présente loi ou une
loi spéciale, le Conseil peut, par ordonnance, sauf disposition contraire de
toute autre loi ou loi spéciale, enjoindre ou permettre à tout intéressé ou à
toute personne touchée par l’ordonnance de procéder, selon les éventuelles
modalités de temps, d’indemnisation, de surveillance ou autres qu’il estime
justes et indiquées dans les circonstances, à l’une des opérations suivantes
: fourniture, construction, modification, mise en place, déplacement,
exploitation, usage, réparation ou entretien d’installations de
télécommunication, acquisition de biens ou adoption d’un système ou d’une
méthode.
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[27]
Subsection
43(2) authorizes carriers to “enter on and break up any highway or other public
place” for the purpose of “constructing, maintaining or operating” their
lines, and to “remain there for as long as is necessary for that purpose”.
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43(2)
Subject to subsections (3) and (4) and section 44, a Canadian carrier or
distribution undertaking may enter on and break up any highway or other
public place for the purpose of constructing, maintaining or operating its
transmission lines and may remain there for as long as is necessary for that
purpose, but shall not unduly interfere with the public use and enjoyment of
the highway or other public place.
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43(2)
Sous réserve des paragraphes (3) et (4) et de l’article 44, l’entreprise
canadienne et l’entreprise de distribution ont accès à toute voie publique ou
tout autre lieu public pour la construction, l’exploitation ou l’entretien de
leurs lignes de transmission, et peuvent y procéder à des travaux, notamment
de creusage, et y demeurer pour la durée nécessaire à ces fins; elles doivent
cependant dans tous les cas veiller à éviter toute entrave abusive à la
jouissance des lieux par le public.
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[28]
The exercise
of the rights created by subsection 43(2) is subject to subsections (3) and
(4). Subsection 43(3) provides that no carrier may construct a
transmission line “on, over or along a highway or other public place” without
the consent of the municipality or other public body with jurisdiction over it.
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43(3) No
Canadian carrier or distribution undertaking shall construct a transmission
line on, over, under or along a highway or other public place without the consent
of the municipality or other public authority having jurisdiction over the
highway or other public place.
|
43(3) Il est
interdit à l’entreprise canadienne et à l’entreprise de distribution de
construire des lignes de transmission sur une voie publique ou dans tout
autre lieu public — ou au-dessus, au-dessous ou aux abords de ceux-ci — sans
l’agrément de l’administration municipale ou autre administration publique
compétente.
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[29]
When a
carrier cannot obtain a municipality’s consent, “on terms acceptable to it”,
“to construct a transmission line on a highway or other public place”,
it may apply to the CRTC for permission to construct it. The CRTC has an
unqualified power to grant the permission “subject to any conditions that the
Commission determines”.
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43(4) Where a Canadian carrier or distribution
undertaking cannot, on terms acceptable to it, obtain the consent of the
municipality or other public authority to construct a transmission line, the
carrier or distribution undertaking may apply to the Commission for
permission to construct it and the Commission may, having due regard to the
use and enjoyment of the highway or other public place by others, grant the
permission subject to any conditions that the Commission determines.
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43(4) Dans le cas où l’administration leur refuse
l’agrément ou leur impose des conditions qui leur sont inacceptables,
l’entreprise canadienne ou l’entreprise de distribution peuvent demander au
Conseil l’autorisation de construire les lignes projetées; celui-ci peut,
compte tenu de la jouissance que d’autres ont des lieux, assortir
l’autorisation des conditions qu’il juge indiquées.
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[30]
Section 44 enables the CRTC,
“on application by a municipality or other public authority”, to order
carriers to “bury or alter the route of a transmission line, actual or
proposed, or “prohibit the construction, maintenance or operation” of such a
line, “except as directed by the Commission.”
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44.
On application by a municipality or other public authority, the Commission
may
(a)
order a Canadian carrier or distribution undertaking, subject to any
conditions that the Commission determines, to bury or alter the route of any
transmission line situated or proposed to be situated within the jurisdiction
of the municipality or public authority; or
(b)
prohibit the construction, maintenance or operation by a Canadian carrier or
distribution undertaking of any such transmission line except as directed by
the Commission.
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44.
Sur demande d’une administration municipale ou autre administration publique,
le Conseil peut :
a) soit obliger, aux conditions qu’il fixe,
l’entreprise canadienne ou l’entreprise de distribution à enfouir les lignes
de transmission qu’elles ont, ou projettent d’avoir, sur le territoire de
l’administration en question ou à en modifier l’emplacement;
b) soit ne leur en permettre la construction,
l’exploitation ou l’entretien qu’en exécution de ses instructions.
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E. ISSUES AND ANALAYSIS
Issue 1: Did the CRTC have legal
authority to decide Allstream’s application?
[31]
Edmonton says that the dispute between
it and Allstream is over the fee to be paid for the transmission lines to
remain on the LRT lands and for Allstream’s entry on the lands for the purpose
of maintaining and operating the lines. Counsel for Edmonton submitted that the CRTC has jurisdiction
to permit a carrier to construct a line on municipal land when it cannot
obtain the consent of the municipality on terms acceptable to it, but it does
not have jurisdiction to resolve disputes about the post-construction use of
municipal land.
[32]
The
present case, counsel argues, does not involve a dispute about consent to
construct a transmission line, because Allstream has already constructed its
lines pursuant to the LRT Agreement. Rather, it is a dispute about the
occupancy fee payable for the post-construction use of LRT lands, and must be resolved
according to the law of contract by the courts of the province, not the CRTC.
(i) Standard of review
[33]
It was not
seriously disputed that correctness is the standard of review applicable to the
CRTC’s decision that it could determine Allstream’s application, and grant it
permission to use the LRT lands, subject to the payment of a fee. I agree.
[34]
The
question in dispute is one of statutory interpretation. In Barrie Public
Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R.
476, it was held that the CRTC’s interpretation of the phrase,
“supporting structure of a transmission line” in the Telecommunications Act
was not within the specialized expertise of the CRTC, and was reviewable for
correctness. Writing on behalf of the majority of the Court, Gonthier J. chose the
correctness standard because the question at issue was one of statutory
interpretation, “a purely legal question” (at para. 16), which was “of general
importance to the telecommunications and electricity industries” (at para. 18),
and did not engage
the CRTC’s special
expertise in the regulation and supervision of Canadian broadcasting and
telecommunications. This is not a question of telecommunications policy, or one
which requires an understanding of technical language.
[35]
This
reasoning is equally applicable to the interpretation of the Act to determine
if the CRTC had legal authority to hear and determine Allstream’s application.
If, as the parties agree, this issue concerns the CRTC’s “jurisdiction”, that
is another reason for concluding that the standard of review is correctness: Chieu
v. Canada (Minster of Immigration and
Citizenship),
2002 SCC 3, [2002] 1 S.C.R. 84 at para. 24.
(ii) The statutory scheme
[36]
The facts of
the case must be kept firmly in mind before the statutory scheme is applied. From
March 27, 1997 until March 27, 2002, Allstream entered on the LRT lands for the
purpose of constructing, maintaining and operating transmission lines pursuant
to the LRT Agreement. The Agreement was not renewed because Allstream refused
to agree to Edmonton’s claim to an occupancy fee
that was much higher than its causal costs.
[37]
The
absence of any contract with Edmonton appears to have had no
adverse effect on Allstream. Its lines remain in place and its employees
continue to enter on the LRT lands in order to maintain them. Indeed, Allstream
is better off because it is not paying a fee to Edmonton.
[38]
True, Allstream
is in breach of its contractual obligation to remove its facilities on the
expiry and non-renewal of the LRT Agreement. However, Edmonton says that it has no intention enforcing its
right, because requiring removal is not practicable. Instead, it has instituted
an action in Alberta’s Court of Queen’s Bench seeking compensation for
Allstream’s continued use of the LRT lands for its transmission lines without Edmonton’s consent.
[39]
It is
clear that sections 42-44 of the Act do not expressly cover these facts. Subsection
43(2) grants carriers the right to enter on “any highway or other public place for
the purpose of constructing, maintaining and operating its transmission lines”,
subject to obtaining municipal consent (subsection 43(3)). However, no
municipal consent appears to be necessary to enable a carrier to enter on land
for the purpose of maintaining or operating a transmission line, even though
Allstream’s application sought, and the CRTC’s decision granted, permission to
enter for the purposes of constructing, maintaining and operating
transmission lines. Similarly, a municipality may not interfere with a carrier
when entering on municipal lands for the purpose of maintaining and operating
its lines.
[40]
If the
carrier cannot obtain municipal consent to construct a line on acceptable terms,
it may apply to the CRTC for the necessary permission. In my opinion, “constructing”
is not limited to the physical acts of installing or building, but also includes
keeping in place what has been constructed. A right simply to construct, without
more, would be of no value in ensuring the provision of telecommunications
services to the public, since the land owner could remove the lines the day
after they were installed. Hence, the qualified statutory right to construct a transmission
line includes the right to leave it in place after its installation.
[41]
Because it
is not necessary for a carrier to enter on lands for the purpose of keeping
transmissions lines in place, this is not included in the words “enter on and
break up for the purpose of maintaining or operating” lines. Rather, keeping
the lines in place is better seen as integral to constructing them.
[42]
In the
present case, the lines were constructed and have remained in place pursuant to
the LRT Agreement granting Allstream the “non exclusive right and licence to
use … LRT lands for the purpose of constructing, maintaining and operating a
conduit for fibre optic transmission cables”. On the expiry of the Agreement,
the parties were unable to agree terms acceptable to Allstream on which the
lines continued to remain on the LRT lands and Allstream had access for the
purpose for maintaining and operating them. In my opinion, this can
appropriately be described as a dispute about an aspect of Allstream’s qualified
right to construct a transmission line, and is therefore within the
jurisdiction of the CRTC under subsection 43(4) if the carrier has been unable
to obtain the consent of the municipality on terms acceptable to it.
[43]
In
exercising its jurisdiction under 43(4) with respect to Allstream’s
application, the CRTC has broad power under subsection 42(1) to deal with issues
inextricably connected with the construction of the transmission lines,
including granting permission to enter on LRT lands for the purpose of maintaining
and operating them, “subject to such conditions as to compensation or
otherwise” … as it considers “just and expedient”.
[44]
Concluding
that the CRTC’s jurisdiction under subsection 43(4) includes disputes over matters
necessarily incidental to the act of constructing is, in my opinion, fully
justified by the modern contextual and purposive approach to statutory
interpretation. Whenever possible, statutes should be interpreted in a manner
that facilitates the effective implementation of legislative objectives. Thus,
writing for the Court, Gonthier J. said in Bell Canada v. Canada (Canadian Radio-television
and Telecommunications Commission), [1989] 1 S.C. R. 1722 at 1756:
The powers of any administrative
tribunal must of course be stated in its enabling statute but they may also
exist by necessary implication from the wording of the Act, its structure and
its purpose. Although courts must refrain from unduly broadening the powers of
such regulatory authorities through judicial law-making, they must avoid
sterilizing these powers through overly technical interpretations of enabling
statutes.
[45]
The
objects of the Telecommunications Act include the following:
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7.
It is hereby affirmed that telecommunications performs an essential role in
the maintenance of Canada’s identity and
sovereignty and that the Canadian telecommunications policy has as its
objectives
(a)
to facilitate the orderly development throughout Canada of a
telecommunications system that serves to safeguard, enrich and strengthen the
social and economic fabric of Canada and its regions;
(b)
to render reliable and affordable telecommunications services of high quality
accessible to Canadians in both urban and rural areas in all regions of Canada;
(c)
to enhance the efficiency and competitiveness, at the national and
international levels, of Canadian telecommunications;
…
(f)
to foster increased reliance on market forces for the provision of
telecommunications services and to ensure that regulation, where required, is
efficient and effective;
…
(h)
to respond to the economic and social requirements of users of
telecommunications services; and
…
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7.
La présente loi affirme le caractère essentiel des télécommunications pour
l’identité et la souveraineté canadiennes; la politique canadienne de
télécommunication vise à :
a) favoriser le développement ordonné des
télécommunications partout au Canada en un système qui contribue à
sauvegarder, enrichir et renforcer la structure sociale et économique du Canada et de ses
régions;
b) permettre l’accès aux Canadiens dans toutes
les régions — rurales ou urbaines — du Canada à des services de
télécommunication sûrs, abordables et de qualité;
c) accroître l’efficacité et la compétitivité,
sur les plans national et international, des télécommunications canadiennes;
[…]
f) favoriser le libre jeu du marché en ce qui
concerne la fourniture de services de télécommunication et assurer
l’efficacité de la réglementation, dans le cas où celle-ci est nécessaire;
[…]
h) satisfaire les exigences économiques et
sociales des usagers des services de télécommunication;
[…]
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[46]
The
regulation of telecommunications is within exclusive federal legislative
authority: Alberta Government Telephones v. CRTC, [1989] 2 S.C.R. 225 at
256-68 (telephones). In order to attain the statutory objects, the Act should
be interpreted as creating a comprehensive regulatory scheme. In the context of
the present dispute, it is relevant that the speed of technological development,
and the enhanced reliance on market forces in the provision of
telecommunications, have made parties reluctant to enter into long-term arrangements,
which were more common in earlier times when the predecessors of what are now sections
42-44 were enacted.
[47]
In my
opinion, Edmonton’s argument that the CRTC has no jurisdiction
to resolve disputes, on the application of a carrier, which arise after a
transmission line has been constructed, is based on an unduly narrow
interpretation of the Act. This is at odds with the administration of the Act in
a manner that attains the statutory objects of, among other things, encouraging
the orderly development of telecommunications networks in Canada.
[48]
First, as
the CRTC pointed out in its reasons for decision, it would be absurd to
interpret the Act as requiring that Edmonton remove, or threaten to remove,
existing transmission lines before Allstream could apply to the CRTC under
subsection 43(4) for permission to enter on the LRT lands for the purpose of
constructing the lines that had just been removed. In any event, as Edmonton recognized, it could not
realistically order the removal of the lines, despite Allstream’s contractual
obligation to remove them on the expiry of the LRT lands Agreement.
[49]
Second, paragraph
44(b) confers jurisdiction on the CRTC, on the application of a
municipality or other public authority, to prohibit the construction, maintenance
or operation of a transmission line, except as the CRTC may direct. Counsel for
Edmonton argued that the broad words
of this provision should be read down so as to limit it to disputes about the methods
of a carrier’s construction, maintenance or operation of lines.
[50]
I see no
justification for reading in this limitation. Section 44 provides
municipalities with a forum in which to seek a broad range of redress for complaints
about carriers’ construction, maintenance or operation of lines. If Edmonton had chosen to apply under
paragraph 44(b), the CRTC would have had jurisdiction to provide a
comprehensive solution to its dispute with Allstream, including the basis for
the calculation of a fee. To interpret subsection 43(4) as enabling the CRTC to
resolve the present dispute on the application of the carrier would thus not
empower the CRTC to deal with a subject-matter otherwise outside its authority.
[51]
In
contrast, Edmonton’s interpretation of the
statutory scheme would allow municipalities to prevent the CRTC’s resolution of
such disputes by refusing to avail themselves of the method of redress
specifically provided by Parliament in paragraph 44(b) of the Act. Such
an approach would fragment the comprehensiveness of the federal regulatory
scheme by encouraging resort to the courts, as happened here, and lead to a
patchwork approach to telecommunications issues.
[52]
Allstream’s
application under subsection 43(4) claimed that it had been unable to obtain
access “for the purpose of constructing, maintaining and operating”
transmission lines on LRT lands on terms acceptable to it. The CRTC ordered the
parties to negotiate a fee structure, based on causal costs, for Allstream to
have access to LRT lands for the purposes of “constructing, maintaining and
operating transmission lines”: at para. 113. Sections 42-44 should be read as a
comprehensive and exclusive code for regulating carriers’ access to public
places for the purposes of constructing, maintaining and operating transmission
lines.
Issue 2: Do the LRT lands
constitute an “other public place” for the purpose of section 43?
[53]
Edmonton’s contention that the LRT
lands are not an “other public place” for the purpose of sections 42-44 was the
principal reason for its refusal to extend the renegotiated MAA to the LRT
lands. The requirement that the dispute concern a “public place” limits the
reach of the jurisdiction of the CRTC under subsection 43(4). The scope of the
phrase has important ramifications for other municipalities as well.
(i)
Standard
of review
[54]
This issue,
too, involves statutory interpretation, namely, whether “other public place” is
limited to a place possessing the essential characteristics of a highway, and
the application of that phrase, properly interpreted, to the facts.
[55]
It was
argued that Barrie Utilities is distinguishable, on the ground that a constitutional
issue concerning the CRTC’s jurisdiction over the power poles of provincially
regulated electric power companies may have cast its shadow over the
interpretation of the disputed statutory provision. In the present case,
however, the interpretation of “other public place” does not raise even a hint
of a constitutional question.
[56]
In my
opinion, in view of the bases of Gonthier J.’s decision in Barrie Public Utilities on the standard
of review applicable to the CRTC’s interpretation of the provisions of the Telecommunications
Act in issue in that case, this
distinction does not warrant the selection of a less probing standard of review
in the present case.
[57]
Thus, the
CRTC will have erred in law if its interpretation of the words “other public
place” is not correct. However, the CRTC’s application of the statutory phrase
to the facts is not reviewable for correctness because it is a question of
mixed fact and law, and the Court’s appellate jurisdiction over decisions of
the CRTC is limited to questions of law and jurisdiction (subsection 64(1)). An
unreasonable application of the statutory provision to the facts would
constitute an error of law. Since Parliament has provided a right of appeal on
questions of law, reasonableness simpliciter is the standard appropriate
for reviewing the CRTC’s application of the statute to the facts.
(ii) Interpretation
[58]
The words
“any highway and other public place” are not defined in the Act. Edmonton argues that, on the basis of
the ejusdem generis presumption of statutory interpretation, “public
place” should be narrowly construed so as to include only a place with the
essential characteristics of a highway, namely, that members of the public have
access to it and can travel on it in their own vehicles.
[59]
The LRT
lands do not have this latter characteristic, since the public can only travel
through the tunnels in an LRT vehicle. When pressed for examples of what would
constitute a “public place” on this definition, counsel suggested the roadway
in front of a strip mall adjacent to a highway where customers park their cars.
[60]
The
interpretative problem seems to result from the fact that much of the language
of sections 43 and 44 has been borrowed from older legislation, enacted when
the transmission lines principally contemplated were telephone or telegraph wires
strung on poles along roads, or electricity cables buried under roads. Hence,
the corresponding phrase in the Railway Act, starting in 1899, was
“highway, square or public place”. When used as a third item after
“highway” and “square”, the meaning of “public place” may well have been
coloured by the presence of these more precise words, and interpreted ejusdem
generis.
[61]
However,
the interpretation of the phrase “other public place” should be informed more
by its contemporary setting in the present Telecommunications Act, than by
its historical antecedents. Thus, the removal of “square” from the current Act
seems to me to broaden the meaning of “other public place”. When a more general
word or phrase follows a single word, the ejusdem generis presumption of
statutory interpretation is of little assistance. A list of one does not normally
establish a single genus: Ferguson v. MacLean, [1930] 2 S.C.R.
630 at 653.
[62]
Although counsel
could not point to any statutory purpose that would support limiting “other
public place” to a “highway-like” place, they noted that a significant
contextual consideration was that the statutory provisions deal with the grant
of permission for carriers to “enter on and break up” a highway or other
public place. They argued that these words were not apposite for describing access
to buildings, such as the LRT tunnels, stations and pedways: in these contexts,
“enter in” would be more apt than “enter on”, and “break up” would be
largely irrelevant.
[63]
The words
“enter on and break up” are time-honoured and are derived from earlier
legislation governing rights of access for regulated carriers. The verbs
“enter”, break up” and “open” have appeared in the Railway Act since
1899. Their retention in the current legislative scheme should not be taken as
an indication that Parliament intended the words “other public place” to have a
narrower meaning than that indicated by their ordinary usage and the objects of
the current Act.
[64]
Sections
42-44 of the Act appear to have been drafted, in part at least, by “cut
and paste”. The history of statutory language should not determine the meaning
of words or phrases when used in a relatively new Act if this would thwart the effective
administration of the legislation. As already noted, the objects of the Telecommunications
Act include encouraging the efficient and orderly development of
communications networks by providing a regulatory framework which is responsive
to advances in telecommunications technology and to the introduction of a
competitive business environment and market forces.
[65]
Counsel supporting
Edmonton’s position could suggest no
reason, consistent with the current legislative scheme, for reading down “other
public place” to mean places that members of the public can access and travel
on in their own vehicles. However, it was argued that the CRTC’s interpretation
was so broad as to make “highway” redundant, and there is a presumption that
Parliament intends each word in s statute to have a function.
[66]
In my
opinion, no interpretation provides a perfect fit with sections 42-44, and the
phrases that they contain, in large part because they have been transplanted in
modified form from earlier legislation. Nonetheless, I am satisfied that a broader
interpretation of “other public place” is a better fit with the text, context
and purposes of the current Act than that advanced by Edmonton. In short, the phrase is not narrowly
confined to “highway-like” places.
[67]
The CRTC
did not purport to provide a succinct, dictionary definition of the phrase.
Rather, it identified criteria for determining whether a particular location
was an “other public place” for the purpose of the Act. These include:
ownership of the land, the purpose for which it is used, and the degree of
access to it. In my opinion, this multi-factored approach embodies the correct approach
to the interpretation of “other public place” in the Act, by enabling the CRTC
to be attentive to the facts of individual cases, as well as to the current statutory
objects of the present regulatory scheme.
(iii) Application
[68]
Applying
these criteria to the facts, the CRTC noted that the LRT lands were owned by Edmonton, a public body, and were used
for the public purpose of providing transportation to paying passengers.
Further, the public has relatively broad access to the lands in question for
the purpose of travelling on the vehicles operated by the LRT.
[69]
In my
view, on the basis of these criteria, the CRTC’s conclusion that the LRT lands
constitute a “public place” is not unreasonable and hence is not erroneous in law.
Issue 3: Did the CRTC err in
law by limiting the fee payable by Allstream for the use of LRT lands to Edmonton’s causal costs?
(i) Standard of review
[70]
The CRTC
has power under subsection 43(4) to impose conditions when a carrier cannot
obtain municipal consent on terms acceptable to it:
|
…
the Commission may, having due regard to the use and enjoyment of the highway
or other public place by others, grant the permission subject to any
conditions that the Commission determines.
|
…
[le Conseil] peut, compte tenu de la jouissance que d’autres ont des lieux,
assortir l’autorisation des conditions qu’il juge indiquées.
|
[71]
The CRTC has greater expertise
than the Court in designing the conditions, including the setting of fees, to
which permission will be subject. This, together with the breadth of the statutory
discretion conferred, indicates that a deferential standard is appropriate when
the Court is reviewing decision made under subsection 43(4). However, the
presence of a limited right of appeal, and the fact that the decision, while
discretionary, is more adjudicative than polycentric, suggests that Parliament
did not intend the most deferential standrd of review to apply.
[72]
Hence, the CRTC will
have erred in law if its exercise of discretion under subsection 43(4) does not
satisfy the reasonableness simpliciter standard: semble, Federation of Canadian Municipalities
v. AT&T Canada Corp. supra at para. 30.
[73]
In Allstream
Corp. v. Bell Canada, 2005 FCA 247, 338 N.R. 177 at para. 31, this
Court applied the more deferential standard of patent unreasonableness to the
CRTC’s exercise of discretion in approving tariffs submitted by Bell for the provision of fibre optical
services to customers. That case is distinguishable from ours, however, on the
ground that rate-setting decisions are more polycentric, and of broader
application, than adjudicative. In any event, nothing turns on which
unreasonableness standard applies to the CRTC’s exercise of discretion in this
case.
(ii)
Was the imposition of a costs-based occupancy fee unreasonable?
[74]
In view of the
breadth of the CRTC’s discretion under subsection 43(4) and the deferential
standard of review appropriate to its exercise, the appellant faces a
formidable task to establish that the CRTC committed a reviewable error.
[75]
Counsel developed two
principal lines of attack on this aspect of the CRTC’s decision. The essence of
the first was that it was fundamentally unfair that Allstream and its customers
should be granted the use of the LRT lands for what was likely to be a very
small sum, because the LRT tunnels and stations had already been built for the
transit system.
[76]
The argument was that
Parliament could not possibly have intended the CRTC to permit a carrier to
interfere with the property rights of a municipality without paying proper
compensation. In my view, however, when considered in the context of the
regulatory scheme established by the Act, this argument falls short of
demonstrating that the CRTC’s decision was unreasonable.
[77]
First, whatever the
abstract “fairness” of this decision may be, it is not the function of the
Court to substitute its view of the merits for that of the CRTC. In this
context, “fairness” is a subjective and judicially
unmanageable standard. Nonetheless, I would note that Edmonton agreed to a fee schedule based on causal costs when it renegotiated
the MAA respecting municipal lands, other than the LRT lands.
[78]
Second, by granting
to carriers a conditional right to enter on and break up a highway or other
public place for the purpose of constructing, maintaining or operating
transmission lines, subsection 43(2) of the Act explicitly limits the property
rights of municipalities and other public authorities in order to ensure the
provision to the public of telecommunications services.
[79]
Section 46 of the Act
provides a discrete process for enabling a carrier to expropriate land or an
interest in land for the purpose of constructing transmission lines, including
the payment of fair market value for the land expropriated. It was not argued
that the CRTC’s decision in this case was an expropriation of an interest in Edmonton’s land.
[80]
Third, while the
CRTC’s decision was undoubtedly beneficial to Allstream, the benefit was not at
the expense of the taxpayers of Edmonton, in the sense that Allstream was
required to compensate Edmonton for any costs attributable to Allstream’s
constructing, maintaining or operating the transmission lines on the LRT lands.
[81]
Indeed, the creation of
a state-of-the-art, competitively priced telecommunications network to serve
downtown Edmonton is likely to produce indirect benefits for
the City and its residents through, for example, an increase in municipal
revenues and employment opportunities, as a result of the retention, expansion
and attraction of businesses.
[82]
The second line of
attack on the decision focused on the CRTC’s use of its earlier decision in Ledcor,
where the CRTC first promulgated “causal costs” as the basis on which a carrier
was to pay for access. In particular, it was argued, the CRTC has elevated
causal costs to the status of a general principle, despite the warning of this
Court in Federation
of Canadian Municipalities v. AT&T Canada Corp., supra at para. 21, that the
principles elaborated by the CRTC in Ledcor were not binding on anyone.
[83]
In my
view, however, Edmonton has not established that, in
the present case, the CRTC unlawfully fettered the exercise of its discretion,
or ignored factors that it was obliged to consider, when it ordered that the
fee payable to Allstream be based on causal costs.
[84]
First, the
CRTC rejected as “inappropriate in the circumstances of this case” (my
emphasis), Edmonton’s proposal of a $20.00 a
metre occupancy fee based on its land value formula. This was because the fee
to which Edmonton had agreed with respect to the non-LRT lands in the
renegotiated MAA was substantially lower than the $20.00 a metre which Edmonton said was based on land value:
para. 107. Edmonton did not suggest any other
figure.
[85]
Second, the CRTC found that, if it
imposed the occupancy fee proposed by Edmonton,
it would put Allstream at a competitive disadvantage vis-à-vis other
carriers, because it would be the only carrier paying substantially more than
causal costs for access. It is a policy of the Act to foster increased reliance
on market forces in the supply of telecommunications services: para. 7(f).
A decision not to impose on Allstream a higher fee than that paid by its
competitors would seem consistent with this policy.
[86]
Third, the CRTC rejected Edmonton’s suggestion that a fair
market value should be determined by an auction of the rights to use the LRT
lands for transmission lines, on the ground that, while there were potential bidders,
Edmonton was the only seller, since no
equivalent sources of supply were available: para. 110.
[87]
Fourth,
the CRTC did not prescribe the particular methodology to be used for the
calculation of causal costs. It was prepared to leave it to the parties to
agree on the appropriate methodology and to intervene only if they could not
agree: paras. 104-5 of its reasons.
[88]
In
summary, I am not persuaded that, on the facts of this case, the CRTC’s
conclusion that the fees should be based on causal costs was vitiated by any
error that can be said to make its decision unreasonable. This is not to say
that, when the appropriate evidence is led, the CRTC is precluded from
including in the calculation of causal costs a portion of the costs of the
ongoing maintenance of the municipal property being used by a carrier for its
transmission line.
F. CONCLUSION
[89]
For these
reasons, I would dismiss the appeal with costs.
“John M. Evans”
“I
agree.
J.
Edgar Sexton J.A.”
“I
agree.
K.
Sharlow J.A.”
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