Rogers Cable Communications Inc. v. New Brunswick (Transportation), 2007 FCA 168

Date: 20070427

Docket: 07-A-11

Citation: 2007 FCA 168

CORAM:       NOËL J.A.

                        EVANS J.A.

                        SHARLOW J.A.

BETWEEN:

ROGERS CABLE COMMUNICATIONS INC.

Applicant

and

PROVINCE OF NEW BRUNSWICK,

as represented by the Minister of Transportation

Respondent

Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on April 27, 2007.

REASONS FOR ORDER BY:                                                                                      EVANS J.A.

CONCURRED IN BY:                                                                                                   NOËL J.A.

                                                                                                                               SHARLOW J.A.

Date: 20070427

Docket: 07-A-11

Citation: 2007 FCA 168

CORAM:       NOËL J.A.

                        EVANS J.A.

                        SHARLOW J.A.

BETWEEN:

ROGERS CABLE COMMUNICATIONS INC.

Applicant

and

PROVINCE OF NEW BRUNSWICK,

as represented by the Minister of Transportation

Respondent

REASONS FOR ORDER

EVANS J.A.

[1]               This is a motion by Rogers Cable Communications Inc. pursuant to rule 352 of the Federal Courts Rules for an order granting Rogers leave to appeal from Telecom Decision CRTC 2007-8, issued by the Canadian Radio-television and Telecommunications Commission on February 8, 2007.

[2]               The decision in question concerns the fees payable by Rogers to the Province of New Brunswick for the use of highways for the purpose of the construction, operation and maintenance of transmission lines. The CRTC decided to depart from its general principle and not order the parties to negotiate a fee based on causal costs, since it would be very difficult and prohibitively expensive for the Province to prove the costs caused to it by Rogers’ use of the highways. The CRTC found the fee currently being paid by Rogers in connection with its use of highways to be just and expedient.

[3]               Leave to appeal is granted pursuant to section 64 of the Telecommunications Act, S.C. 1993, c. 38, when a party establishes that a decision is arguably based on an error on a question of law or jurisdiction. Rogers impugns the CRTC’s decision on the following six grounds:

(i)                  the absence of evidence to support the fees currently charged by the Province;

(ii)                an error of law by the CRTC in the interpretation of its statutory power to determine an amount of “compensation” that is “just and expedient”;

(iii)               an absence of evidence relating to the difficulty of proving the costs caused to the Province by Rogers’ use of highways for its transmission cables;

(iv)              an improper delegation by the CRTC to the Province of its power to determine   an appropriate fee; 

(v)                an error of law by the CRTC in taking into account Rogers’ revenues in determining the reasonableness of the fees; and

(vi)              the imposition by the CRTC of a Regulation which is invalid because the fee charged by the Province amounts to a tax.

[4]                On the basis of the materials submitted to me, including the CRTC’s reasons for decision, I am not persuaded that these proposed grounds of appeal, either individually or collectively, demonstrate that the CRTC’s decision is arguably vitiated by a material error of law or jurisdiction.

[5]               As for the allegations of a lack of evidence to support the fees being charged to Rogers, I note the broad statutory discretion exercisable by the CRTC when determining the appropriateness of a fee payable by a telecommunications carrier for the use of highways and other public places to construct, operate and maintain its transmission lines, and the application of the same fee formula by the Province to other carriers. The exercise of the power to determine reasonable compensation is within the expertise of the CRTC.

[6]               Nor can the CRTC, in finding the existing fee to be reasonable, arguably be said to have delegated its discretion to New Brunswick, or to have imposed on Rogers an invalid tax, on the ground that the fee is based on a formula contained in a Provincial regulation. On a fair reading of the CRTC’s reasons, it is clear that it did not base its decision on the amount of Rogers’ revenues.  

[7]               For these reasons, I would dismiss Rogers’ motion for leave to appeal, with costs.

“John M. Evans”

“I agree.

Marc Noël J.A.”

“I agree.

K. Sharlow J.A.”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                              07-A-11

STYLE OF CAUSE:                                              ROGERS CABLE COMMUNICATIONS INC. v. PROVINCE OF NEW BRUNSWICK, as represented by the Minister of Transportation    

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                             EVANS J.A.

CONCURRED IN BY:                                         NOËL J.A.

                                                                                SHARLOW J.A.

DATED:                                                                 APRIL 27, 2007

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: