Traditionally, judicial appeals from decisions of the Canadian Radio-television and Telecommunications Commission (Canada's communications regulatory agency) were rare under the Telecommunications Act. However, three such cases are being heard by the appellate courts, which suggests that judicial challenges of the commission's decisions may prove to be more common and fruitful for disgruntled Canadian broadcasters from now on.
The three commission appeals are:
- Barrie Public Utilities v Canadian Cable Television Association;
- City of Vancouver v Ledcor; and
- Primus Telecommunications Canada Inc v the Canadian Radio-television and Telecommunications Commission.
Several factors explain the historical reticence of Canadian broadcasters to seek a judicial remedy from unsatisfactory decisions of the commission. First, the commission's decisions are final and conclusive, and may be challenged only when a question of law or jurisdiction is raised. Second, permission must be granted by the Court of Appeal for the right to appeal. Although applicants for leave need only show a fairly arguable case in order to win the right to appeal, historically, leave has not often been granted. Third, upon appeal the courts have tended to afford a high degree of curial deference to the commission's opinion on issues that fall squarely within its area of expertise, such as telecommunications.
Because of the appeal courts' tradition in upholding the commission's decisions, few court appeals have been launched and, in the case of decisions rendered under the Telecommunications Act, Canadian broadcasters have tended to apply to the commission itself for review and variance.
The year 2001 saw a more activist Court of Appeal. Its decision in the Barrie Utilities Case signals a shift in judicial attitudes towards the commission and a more interventionist role on appeal. The principal issue on appeal was whether the commission had the power to grant and determine the terms of access by cable companies to the poles of municipal electricity companies under Section 43(5) of the Telecommunications Act. The court held that although it accepted that the commission is an expert tribunal with respect to technical matters, "there is no indication that its expertise is involved in the determination of the question at issue in this case". Thus, the court concluded that the appropriate standard of review was one of correctness, not reasonableness, and that it owed no deference to the commission on this issue. This outlook contrasts sharply with that of the Supreme Court in BC Tel v Shaw [1995] 2 SCR 739 (the last case involving the commission to go before the highest court), in which the Supreme Court was much more willing to recognize its expertise.
The Canadian Cable Television Association's application for leave to appeal to the Supreme Court against the Barrie Utilities decision is still pending. Should leave to appeal be granted, it will be interesting to see how the court deals with this aspect of the Court of Appeal's decision.
Hearings for the other appeals have not yet been scheduled in the Court of Appeal, but are expected to take place this year. However, the mere fact that the federal court granted leave to appeal in both cases is consistent with the recent trend of judicial activism on appeals of commission rulings.
The recent rulings of the courts on the issue of the degree of deference to be accorded to the commission's decisions in telecommunications cases will be of real relevance to Canadian telecommunications service providers seeking to challenge commission decisions rendered under the Telecommunications Act.
For further information on this topic please contact Monica Song at Osler, Hoskin & Harcourt LLP by telephone (+1 613 235 7234) or by fax (+1 613 235 2867) or by email ([email protected]).