|
Telecommunications - CRTC (2). Rogers Communications Canada Inc. v. Québecor Média Inc.
In Rogers Communications Canada Inc. v. Québecor Média Inc. (Fed CA, 2025) the Federal Court of Appeal dismissed a telecommunications appeal, here from "a decision of the Canadian Radio-television and Telecommunications Commission (CRTC) concerning a final offer arbitration (FOA)" where "the CRTC selected the offer of the respondent, Québecor Média Inc. (Québecor)", this regarding "access rates for Québecor as a wholesale mobile virtual network operator".
This extract illustrates issues in this little-litigated area:[2] Pursuant to subsection 64(1) of the Telecommunications Act, S.C. 1993, c. 38 (the Act), this appeal is limited to questions of law or of jurisdiction. Rogers argues that the CRTC erred (i) by depriving Rogers of procedural fairness, and (ii) by failing to respect the requirement of subsection 27(1) of the Act that "“[e]very rate charged by a Canadian carrier for a telecommunications service shall be just and reasonable”" (emphasis added).
....
[7] Turning now to the issue of whether the Decision respected the requirement that the rates be just and reasonable, we note first that, in the present appeal, this Court will not review factual conclusions by the CRTC: Teksavvy Solutions Inc. v. Bell Canada, 2024 FCA 121, [2024] F.C.J. No. 1382 at para. 12. To be successful, Rogers must establish an error of law. Its argument in that regard is that the CRTC erred in law in stating at paragraph 15 of the Decision that:... just and reasonable rates can (i) include rates that may not provide an immediate-term return on investment, or (ii) require an otherwise profitable enterprise to incur a modest or temporary loss in one line of business while other lines remain profitable. [8] But the Supreme Court of Canada’s decision in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147, cited by Rogers at paragraph 74 of its memorandum of fact and law, focuses on a fair return on capital over the long run (see paragraph 16 thereof). Rogers’ arguments on this issue focus on its ability to earn a return on capital over the short term, and do not address the CRTC’s apparent view that its Decision permitted Rogers a fair return over the long term. We see no legal error in the context of this case.
[9] Moreover, even if the CRTC’s analysis of short-term consequences was lacking, it does not appear that this Court’s intervention would be warranted. Indeed, paragraph 49 of the Decision indicates that the CRTC was not convinced by Rogers’ evidence that it would be unable to recover its costs. . Telus Communications Inc. v. Federation of Canadian Municipalities [appeal route]
In Telus Communications Inc. v. Federation of Canadian Municipalities (SCC, 2025) the Supreme Court of Canada dismissed an appeal, here from a Federal Court of Appeal dismissal, that from a CRTC ruling that it did not have jurisdiction "to adjudicate disputes over access to 5G small cell antennas situated on public property" under the 'access regime' for telecommunications carriers.
Here the court identifies the appeal route and SOR from CRTC decisions:IV. Standard of Review
[25] The CRTC Decision is subject to a statutory appeal to the Federal Court of Appeal under s. 64(1) of the Act. Absent evidence of a contrary intention, where a legislature has provided for a right of appeal from an administrative decision to a court, the reviewing court is to apply the appellate standards of review (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37). The appellate standards must therefore be applied here. In considering questions of law, including questions of statutory interpretation, the appellate standard of review is correctness (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8). . Telus Communications Inc. v. Federation of Canadian Municipalities
In Telus Communications Inc. v. Federation of Canadian Municipalities (SCC, 2025) the Supreme Court of Canada dismissed an appeal, here from a Federal Court of Appeal dismissal, that from a CRTC ruling that it did not have jurisdiction "to adjudicate disputes over access to 5G small cell antennas situated on public property" under the 'access regime' for telecommunications carriers.
In this '5G' context, the court illustrates the role that the CRTC plays in the Canadian telecommunications legal regime:C. Procedural History
(1) CRTC Consultation and Decision
[15] In February 2019, the CRTC issued Telecom Notice of Consultation CRTC 2019-57 for the purpose of initiating a broad review of mobile wireless services and the associated regulatory framework. The review focused on three key areas: (1) competition in the retail mobile wireless service market; (2) the current regulatory framework for wholesale mobile wireless services; and (3) the future of mobile wireless services in Canada.
[16] Notably for this appeal, reducing barriers to infrastructure deployment for mobile wireless services, including 5G infrastructure, was a topic of the 2019 consultation. Various parties, including the carriers, provided comments on the issues associated with obtaining access to different types of infrastructure in order to deploy mobile wireless networks and whether changes could or should be made to the CRTC’s existing rules to facilitate such access. This raised the question of whether the CRTC’s jurisdiction to regulate carriers’ access to public property extended to the installation of 5G small cell antennas, requiring the CRTC to interpret the meaning of “transmission line” in ss. 43 and 44 of the Act.
[17] The CRTC’s interpretation of “transmission line” is found within its voluminous Decision on the various issues encompassing the 2019 consultation. The CRTC concluded that “transmission line” did not include 5G small cell antennas or any wireless infrastructure for two reasons.
[18] First, according to the CRTC, the ordinary meaning of the term “transmission line” and the context of the Act demonstrate that Parliament intended the term to refer only to wireline infrastructure. Although the Act does not define “transmission line”, s. 2(1) of the Act defines “transmission facility” as “any wire, cable, radio, optical or other electromagnetic system, or any similar technical system, for the transmission of intelligence between network termination points”, subject to some exceptions. The CRTC found this definition to be highly significant in that it showed that Parliament “was aware that there were technologies that transmit telecommunications wirelessly” (CRTC Decision, at para. 481). Therefore, “transmission line” must mean something distinct from “transmission facility”. Given the “all-encompassing scope” of “transmission facility”, Parliament must have intended “transmission line” to apply more narrowly (para. 482). Further, dictionary definitions of the word “line” — such as a “wire or cable for a telephone” — led the CRTC to conclude that “Parliament meant to capture ‘transmission cables’ and ‘transmission wires’” (paras. 483-84, quoting Canadian Oxford Dictionary (2nd ed. 2004), at p. 892).
[19] Second, the CRTC concluded that a narrow interpretation of “transmission line” “appropriately recognizes the broader statutory scheme enacted by Parliament, including the scheme of the closely related Radiocommunication Act, which provides the Minister of Industry with the power to approve sites for the placement of radio apparatus” (para. 485).
(2) Federal Court of Appeal, 2023 FCA 79, 16 Admin. L.R. (7th) 32 (de Montigny, Locke and LeBlanc JJ.A.)
[20] Telus appealed the CRTC Decision, challenging, among other things, the CRTC’s conclusion that “transmission line” does not include wireless telecommunications infrastructure.
[21] The Federal Court of Appeal confirmed the CRTC’s interpretation of “transmission line” and unanimously dismissed the carriers’ appeal. In reaching this conclusion, the court considered the grammatical and ordinary meaning of the words “transmission line”, the internal context of the provisions and other related provisions of the Act, the interplay between the Act and the Radiocommunication Act, and Parliament’s policy objectives.
[22] The Court of Appeal agreed with the CRTC that the ordinary meaning of “line” is a physical or tangible pathway, and that this meaning is consistent with ss. 43 and 44. It also agreed with the CRTC that in keeping with the presumption of consistent expression, transmission line must be a narrower subset of “transmission facility”, because “transmission facility” is defined broadly in the Act. The court rejected the carriers’ argument that a dynamic interpretation leads to a different result, because the term “transmission line” was a specific term used in a technical context. Finally, the court agreed with the CRTC that because the Radiocommunication Act established a scheme for the approval of antenna sites, the installation of 5G small cell antennas “must be handled as a ministerial siting approval issue, not as a qualified right of access subject to the supervision of the CRTC” (para. 100).
[23] The Court of Appeal also held that a general policy objective of the Act, namely the orderly deployment of telecommunications, could not supersede the clear language of the provisions. Parliament purposely chose not to exercise its jurisdiction to regulate access for mobile wireless infrastructure, and instead to leave it up to good faith negotiations between carriers and municipal property owners.
|
