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Administrative - Bias. Teksavvy Solutions Inc. v. Bell Canada
In Teksavvy Solutions Inc. v. Bell Canada (Fed CA, 2024) the Federal Court of Appeal dismisses a CRTC rate-setting appeal.
The court considers a bias issue, here where the appellant "says that the Chair of the CRTC met with a senior officer of the respondent, Bell Canada, while the matter leading to the decision in issue here was pending before the CRTC":[54] Teksavvy raises another incident that it says gives rise to a reasonable apprehension of bias, one that on different facts and circumstances could indeed be problematic. Teksavvy says that the Chair of the CRTC met with a senior officer of the respondent, Bell Canada, while the matter leading to the decision in issue here was pending before the CRTC. For good measure, Teksavvy adds that the Chair attended ten other meetings with industry officials between November 2019 and the date of the decision under appeal. It is unclear whether the Chair attended alone or with other CRTC officials.
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[64] Before closing on this issue, this Court has a general power of supervision over federal tribunals and it would be remiss if it did not offer a word or two about meetings between a regulator and a frequent party before it, such as the one in this case.
[65] Meetings between regulators and regulatees outside of the hearing room are a tricky area.
[66] At one end of the spectrum are meetings that are in the public interest, particularly where the regulator has a policy-making mandate and the regulator and the regulatee are in a long term relationship. Regulators need to understand the industry they regulate and the parties in it, their challenges, needs, aspirations, and plans. And regulatees need to understand the motivations of regulators, their view of the public interest and their need to protect it. It is evident from the register maintained under the Lobbying Act, most regulatees in sectors such as this engage in these meetings. It is accepted that they are part of doing business. For good measure, the preamble to the Lobbying Act has declared lobbying to be a "“legitimate activity”". And the CRTC’s Code of Conduct correctly recognizes that "“[f]ormal and informal contacts with parties with an interest in the communications industry are essential to maintaining and enhancing our expertise and knowledge”".
[67] At the other end of the spectrum are meetings to discuss live issues coming before the regulator or already before the regulator for hearing and decision. In effect, these meetings are means by which secret submissions can be offered outside of the hearing room, away from the eyes and ears of other parties to the hearing and the public. This subverts fairness and should not happen.
[68] Somewhere in the middle are social gatherings. The CRTC’s Code of Conduct permits attendance at social events and other meetings between CRTC members and industry representatives as long as CRTC members do not discuss matters before the CRTC during the events. But this can still invite unwelcome questions that can multiply, with mounting risk.
[69] Looking at this case as an example, why were the two together? What was discussed? Why were just the two of them there without any witnesses? Quite simply, meetings between two people, one a regulator and one a regulatee, without any independent witnesses or other evidence to substantiate why the meeting happened and what was discussed can be a recipe for trouble.
[70] In the evidentiary record before us is a CRTC policy that offers good practical guidance on this issue. It recognizes the benefits of regulator-regulatee meetings. But it also flags the risks and offers some ways the risks can be mitigated. For example, among other things, the policy suggests that a senior Commission staff person be present at such meetings. It also suggests that the purposes of the meeting be confirmed in writing.
[71] In the end, though, based on the paucity of evidence in this case, the informed, reasonable and right-minded person, viewing the matter realistically and practically and having thought the matter through, would not conclude that there was an actual or apprehended lack of impartiality on the part of the Chair: Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716; S. (R.D.) at para. 31.
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