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Telecommunications - Telecommunications Act. Fareau v. Bell Canada
In Fareau v. Bell Canada (Ont CA, 2023) the Court of Appeal sets out some basics of the federal Telecommunications Act:[8] The appellants brought a certification motion, and Bell and Ontario brought cross-motions seeking a stay or dismissal of the action on the basis that the claims were within the jurisdiction of the Canadian Radio-television and Telecommunications Commission (“CRTC”)
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2. THE POWERS OF THE CRTC
(a) Statutory Scheme: the Telecommunications Act
[16] The CRTC is Canada’s national telecommunications regulator. Its governing statute is the Telecommunications Act (the “Act”).
(b) The CRTC’s power to regulate telephone rates
[17] Section 47 of the Act provides that the CRTC exercise its powers and perform its duties with a view to implementing the policy objectives identified in s. 7 of the Act and ensuring that Canadian carriers provide telecommunications services and charge rates in accordance with s. 27 of the Act.
[18] The policy objectives identified in s. 7 include facilitating the orderly development throughout Canada of a telecommunications system, rendering reliable and affordable telecommunications services throughout Canada, and fostering increased reliance on market forces.
[19] The primary means by which the CRTC implements its policy objectives is through s. 25 of the Act, which requires Canadian carriers to provide telecommunication services in accordance with “a tariff filed with and approved by the [CRTC] that specifies the rate or the maximum or minimum rate, or both, to be charged for the service.”
[20] For the CRTC to approve a rate that a carrier proposes, s. 27(1) of the Act provides that the rate must be “just and reasonable”. Section 27(2) provides that no carrier may “unjustly discriminate” in providing a service, and s. 27(3) provides that the CRTC may make findings of fact as to whether a carrier has complied with s. 27 and certain other provisions of the Act. In assessing whether a rate is just and reasonable, the CRTC “may adopt any method or technique that it considers appropriate”: s. 27(5).
[21] The CRTC’s broad mandate was recognized by the Supreme Court in Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764, at para. 36:A central responsibility of the CRTC is to determine and approve just and reasonable rates to be charged for telecommunications services. Together with its rate-setting power, the CRTC has the ability to impose any condition on the provision of a service, adopt any method to determine whether a rate is just and reasonable and require a carrier to adopt any accounting method. It is obliged to exercise all of its powers and duties with a view to implementing the Canadian telecommunications policy objectives set out in s. 7. [Emphasis in original.] (c) CRTC’s remedial powers
[22] Section 32(g) of the Act specifically provides that the CRTC may “determine any matter and make any order relating to the rates, tariffs or telecommunications services of Canadian carriers”, absent any applicable provision in that part of the Act.
[23] In addition, s. 60 empowers the CRTC to grant “the whole or any portion of the relief applied for in any case”. It may also “grant any other relief in addition to or in substitution for the relief applied for as if the application had been for that other relief.”
[24] In Penney v. Bell Canada, 2010 ONSC 2801, 93 C.P.C. (6th) 306, Strathy J. (as he then was) cited, at para. 139, Telecom Decision CRTC 2004-8, noting that the CRTC has exercised jurisdiction to order relief “on what is effectively a class-wide basis”. He also observed, at para. 188, that the CRTC’s remedial powers can apply retroactively “[w]here the CRTC finds that the rates charged by a carrier are improper or unauthorized or that a carrier has failed to provide a service in accordance with its tariff.”
(d) The power to forbear
[25] Section 34 of the Act gives the CRTC the power to forbear or refrain from exercising its regulatory power to set rates in the following circumstances: [sic]
[26] Under s. 34(1), it may decide to forbear, in whole or in part, if it finds that to do so would be consistent with its policy objectives.34(1) The [CRTC] may make a determination to refrain, in whole or in part and conditionally or unconditionally, from the exercise of any power or the performance of any duty under sections 24, 25, 27, 29 and 31 in relation to a telecommunications service or class of services provided by a Canadian carrier, where the [CRTC] finds as a question of fact that to refrain would be consistent with the Canadian telecommunications policy objectives. [Emphasis added.] [27] Under s. 34(2), the CRTC may also forbear to the extent it considers appropriate, conditionally or unconditionally if it finds that there is sufficient competition to protect users:34(2) Where the [CRTC] finds as a question of fact that a telecommunications service or class of services provided by a Canadian carrier is or will be subject to competition sufficient to protect the interests of users ... [Emphasis added.] [28] Finally, s. 34(3) precludes the CRTC from making a decision to forbear if doing so would unduly impair competitiveness:34(3) … if the [CRTC] finds as a question of fact that to refrain would be likely to impair unduly the establishment or continuance of a competitive market for that service or class of services. [Emphasis added.] [29] Parties may bring an application asking the CRTC to reconsider its decision to forbear, with a view to seeking a determination from the CRTC under s. 27(1) of the Act that a rate is unjust or unreasonable: see, for example, Telecom Decision CRTC 2002-37. . Telus Communications Inc. v. Federation of Canadian Municipalities
In Telus Communications Inc. v. Federation of Canadian Municipalities (Fed CA, 2023) the Federal Court of Appeal considers the nature of it's appellate jurisdiction under Telecommunications Act s.64, here focussing on 'decisions':V. The jurisdictional issue
[53] As previously mentioned, EC argues that the CRTC’s conclusion on the access issue is not subject to appeal because it is not a "“decision”" within the scope of section 64 of the Act. This Court has established that CRTC’s regulatory policies set out policy frameworks and provide context for telecom orders or decisions, which in turn apply these policies to the facts found in a proceeding: see Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, [2021] 3 F.C.R. 206 at para. 42 [Broadband Association], leave to appeal refused, 2021 CanLII 13272 (SCC), 2021 CanLII 13268 (SCC). And as previously found, such CRTC policy guidelines, frameworks and statements are not binding on the CRTC and are therefore outside the scope of appellate review: see, for example, Bell Canada v. Canada (Attorney General), 2016 FCA 217 at paras. 26-29 [Bell Canada]. This Court similarly found in Canadian Institute of Public and Private Real Estate Cos. v. Bell Canada, 2004 FCA 243 [Canadian Institute of Public and Private Real Estate Cos.] that it did not have "“jurisdiction to hear appeals from mere statements by the CRTC as to its potential jurisdiction in future cases”" (at para. 3). This Court applied the same reasoning in the context of an appeal under subsection 31(2) of the Broadcasting Act, which parallels section 64 of the Act: Bell Canada. At issue in that case was a policy issued following submissions and a public hearing solicited by the CRTC on various topics including simultaneous substitution. The Court held that the regulatory policy was "“clearly not justiciable”", even though the CRTC used the word "“determination”". EC claims that the CRTC, in issuing its Telecom Regulatory Policy 2021-130, did exactly the same thing, undertook the same process as in the simultaneous substitution, and made non-appealable policy guidance statements expressing its view on its own jurisdiction.
[54] EC further submits that the CRTC’s decision was not the outcome of an adjudication over access but was the result of a policy consultation. The CRTC did not issue binding conditions or orders affecting the legal rights of Telus or anyone else. This jurisdictional barrier is not a mere formality because if this were an adjudication of rights, all the relevant parties would have participated and provided a more robust factual record.
[55] Section 64 of the Act states that "“[a]n appeal from a decision of the Commission on any question of law or of jurisdiction”" may be brought in this Court with leave (emphasis added). Section 2, in turn, defines a "“decision”" as including "“a determination made by the Commission in any form”" ("“""[t]oute mesure ""prise par le Conseil, quelle qu’en soit la forme”") (emphasis added). On its face, this language is quite broad and would seem to encompass a large variety of pronouncements made by the CRTC. Indeed, the jurisdiction of the CRTC is not limited to the adjudication of disputes, and subsection 52(1) of the Act provides that it may determine any question of law or fact in the exercise of its powers and in the performance of its duties. The Commission can even make a determination on its own motion (the Act, s. 48). These determinations are binding, in contrast to guidelines and statements which are not binding on the Commission (the Act, s. 58).
[56] There is no doubt that mere guidelines having no binding effects on the parties do not constitute a decision. This is precisely what was at stake in Canadian Institute of Public and Private Real Estate Cos., a case upon which EC heavily relied in support of its position. In that case, the CRTC had set out guidelines in a telecom decision to assist local exchange carriers and private owners of multi-dwelling units in their negotiations of access arrangements. The CRTC, however, had expressly declined to impose any orders or conditions on the owners of multi-dwelling units, and commented that it would be prepared to issue an order were it to determine that access had not been, or was not likely to be, provided on a reasonable basis. Interestingly, the CRTC itself stated that it did not consider it had made any decision and that there would be no decision until there was a specific fact situation adjudicated upon. In that context, this Court found that the CRTC’s comments regarding multi-dwelling units were of no legal effect and did not constitute a decision.
[57] A similar conclusion was reached in the second decision of this Court upon which EC relies. In Bell Canada, the appellants were seeking to quash two broadcasting regulatory policies issued by the CRTC regarding simultaneous substitution. In its First Policy, the CRTC announced that it would continue to allow simultaneous substitution generally, but would disallow its use for specialty channels and the Super Bowl starting in the 2016-2017 season. It also stated that it would amend regulations to be able to remove simultaneous substitution privileges and require licensees to pay compensatory rebates for recurring errors in the simultaneous substitution process. In the Second Policy, the CRTC announced the enactment and coming into force of the regulations implementing penalties and rebates for simultaneous substitution errors which it had announced in the First Policy, and indicated that the elimination of broadcasters’ simultaneous substitution rights for the Super Bowl would be implemented not by regulation, as stated in the First Policy, but by an order made under paragraph 9(1)(h) of the Broadcasting Act.
[58] Relying on its previous decision in Canadian Institute of Public and Private Real Estate Cos., the Court found that the two Policies, insofar as they purport to disallow simultaneous substitution for the Super Bowl effective in 2017, were in the nature of statements of intent to exercise statutory powers in the future and therefore did not qualify as decisions or orders within the meaning of subsection 31(2) of the Broadcasting Act (substantially to the same effect as s. 64(2) of the Act). The Court reasoned that the policy reform proposed by the Commission had "“no direct, immediate or legal effect on the appellants unless and until they are formally implemented through regulation or order”" (Bell Canada at para. 25), and that decisions and orders have to be final in nature to be considered by courts of law.
[59] Bell had argued that the Commission had not sought comments on the substantive decision that it made, but only on the text of the proposed distribution order regarding simultaneous substitution for the Super Bowl. After first noting that the Commission had already reversed its course and announced that simultaneous substitution would be eliminated from the Super Bowl, not through an amendment to the Broadcasting Distribution Regulations, S.O.R./97-555 but through an order pursuant to the Broadcasting Act, the Court had no difficulty rejecting Bell’s argument at paragraph 31:While this is no doubt true, strictly speaking, it would not preclude the Commission from deciding not to pursue its course of action, or alternatively from altering the order to either broaden its scope (e.g., to capture other types of events) or to make it effective only at the expiry of the agreement between the NFL and Bell. The result of the consultation should not be prejudged, and the administrative process should follow its course before the Court is called upon to adjudicate what may well turn out to be a moot issue. This is not only more respectful of the specialized body put in place by Parliament to oversee the regulatory regime applying to a complex field of activity, but it is also a better use of scarce judicial resources. [60] The impugned decision, at least to the extent of its findings with respect to seamless roaming and access to infrastructure, is very different from the policy decisions of the CRTC considered in the two cases described above. This is particularly obvious when considering seamless roaming, as is made clear from paragraph 410 of the CRTC Decision:410. In light of the above, the Commission directs the national wireless carriers to (i) file for approval, within 90 days of the date of this decision, tariffs for wholesale roaming service (wholesale roaming tariffs) with updated terms and conditions to support seamless roaming; and (ii) begin offering seamless roaming within one year of the date of this decision.
(Emphasis in the original) [61] There is no ambiguity whatsoever in these words. The decision of the Commission with respect to seamless roaming is final and has immediate and legal effect on the national wireless carriers.
[62] While the language of the Commission with respect to access to municipal infrastructure is not as prescriptive or forceful as it is for seamless roaming, its ultimate finding that sections 43 and 44 of the Act do not provide the Commission with jurisdiction to adjudicate disputes involving mobile wireless transmission facilities is no less definitive. There is no room left for ambiguity or to revisit the CRTC Decision at a later date. The following extracts from the CRTC Decision, in my view, make it clear that it is not just a policy statement or a guideline but that legal rights have been determined:479. Ultimately, in light of the arguments made on the record and the applicable principles of statutory interpretation, the Commission considers that these statutory provisions do not provide the Commission with jurisdiction to adjudicate disputes involving mobile wireless transmission facilities. The Commission’s conclusion largely turns on the use of the term “transmission line” in the relevant statutory provisions.
485. Far from frustrating Parliament’s intent, an interpretation limiting transmission lines to transmission cables and wires 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, as set out in subsection 5(1) of the Act.
489. In light of all the above, the Commission determines that no further action is necessary or appropriate with respect to municipal access issues at this time. Insofar as these issues are within the Commission’s jurisdiction, existing policies and procedures are sufficient to address them. [63] On the basis of that language, I fail to see how the CRTC could later entertain an application by a carrier for an order to access a municipal structure for the purposes of constructing, operating and maintaining mobile wireless apparatus. There is nothing tentative in the wording of its decision, and there is no further step involved before the decision becomes effective as was the case in the earlier policy decisions which this Court determined not to be "“decisions”" for the purposes of section 64 of the Act. Moreover, the Decision is based on the CRTC’s interpretation of the Act, not on the assessment of facts or the existence of a particular technology that could change or evolve in the future. In other words, the Decision is clearly definitive and is meant to be a definitive finding.
[64] The CRTC also had the benefit of a full record before coming to its decision, contrary to EC’s submission. The Commission invited comments on the matters it intended to review and posed a number of specific questions to help inform parties’ submissions. Participants in the proceeding included telecommunications service providers, non-profit organizations representing consumer interests, various levels of government, industry organizations, and individual Canadians. Many of these parties also provided further comments and replied to representations made by other parties. The proceeding also included a public hearing, which took place from February 18 to 28, 2020. It is therefore fair to say that the Commission had all the necessary information to come to its conclusions on the issues that are now before this Court, and I fail to see how the record could have been more robust or how the Commission could have had the benefit of a wider range of submissions to inform its deliberation.
[65] For all of the foregoing reasons, I am therefore of the view that the CRTC’s conclusion with respect to access and seamless roaming are "“decisions”" for the purpose of section 64 of the Act and can be the subject of the present appeal. . Telus Communications Inc. v. Federation of Canadian Municipalities
In Telus Communications Inc. v. Federation of Canadian Municipalities (Fed CA, 2023) the Federal Court of Appeal conducted a Telecommunications Act [s.64] 'appeal' in relation to mobile wireless telecommunications. I parenthesize 'appeal' because these matters are quite unique, being more in the nature of a court audit of recently-issued CRTC 'Regulatory Policy' decisions to assess them for legality. As this quote indicates these cases are largely dictated by the state of current telecommunications market and technology:[15] As previously mentioned, the decision is very comprehensive and covers a lot of ground. It is structured in four parts: (1) the state of competition in the retail market, which includes a market power analysis (CRTC Decision at paras. 28-157); (2) regulatory measures at the wholesale level, which include measures related to wholesale MVNO access service, wholesale roaming service and seamless roaming, and access to infrastructure (CRTC Decision at paras. 158-489); (3) regulatory measures at the retail level to support competition (CRTC Decision at paras. 490-600); (4) other issues raised by the parties during the proceeding (CRTC Decision at paras. 601-630). Here the court sets out the legislative scheme governing telecommunication and radiocommunication in Canada under the Telecommunications Act and Radiocommunications Act:IV. The legislative framework
[34] To better understand the issues raised in this appeal and the arguments put forward by the parties, it is essential to have a good grasp of the legislative scheme governing telecommunication and radiocommunication in Canada. Equally important are the roles played by the CRTC when imposing conditions of service to Canadian carriers, and by the Minister in issuing and amending the conditions of licence authorizing carriers to use specific radiofrequency bands for the provision of their services, and in approving the location at which wireless facilities such as antennas may be situated.
[35] As the Supreme Court held in Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R. 489 [Reference re Broadcasting] (at paras. 34 and 37), the Broadcasting Act, S.C. 1991, c. 11 the Radiocommunication Act and the Telecommunications Act are part of an "“interrelated scheme”"; while they have different aims, their subject matters will overlap in certain circumstances. As a result, persons regulated under one of the Acts may well be regulated under one of the other Acts as well.
[36] Broadly speaking, the Telecommunications Act’s main objective is the supervision of telecommunications services (voice and data) provided to the public throughout Canada and, as an accessory, the regulation of facilities-based telecommunications common carriers. The Act falls under the responsibility of the Minister of Innovation, Science and Economic Development, but for all intents and purposes, the primary responsibility for the implementation and administration of the Act falls to the CRTC.
[37] Pursuant to section 47 of the Act, the CRTC is required to consider the policy objectives set out in section 7 of the Act when exercising any of its powers:"47 The Commission shall exercise its powers and perform its duties under this Act and any special Act "
"47"" Le Conseil doit, en se conformant aux décrets que lui adresse le gouverneur en conseil au titre de l’article 8 ou aux normes prescrites par arrêté du ministre au titre de l’article 15, exercer les pouvoirs et fonctions que lui confèrent la présente loi et toute loi spéciale de manière à réaliser les objectifs de la politique canadienne de télécommunication et à assurer la conformité des services et tarifs des entreprises canadiennes avec les dispositions de l’article 27. "
"(a) with a view to implementing the Canadian telecommunications policy objectives and ensuring that Canadian carriers provide telecommunications services and charge rates in accordance with section 27; and "
"[blank]"
"(b) in accordance with any orders made by the Governor in Council under section 8 or any standards prescribed by the Minister under section 15. "
"[blank]" [38] These objectives are set out in section 7 of the Act, and include the following:"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 "
"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) 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; "
"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) to render reliable and affordable telecommunications services of high quality accessible to Canadians in both urban and rural areas in all regions of Canada; "
"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) to enhance the efficiency and competitiveness, at the national and international levels, of Canadian telecommunications; "
"c)"" accroître l’efficacité et la compétitivité, sur les plans national et international, des télécommunications canadiennes; "
"… "
"… "
"(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; "
"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) to respond to the economic and social requirements of users of telecommunications services; and "
"h)"" satisfaire les exigences économiques et sociales des usagers des services de télécommunication;" [39] Section 8 of the Act authorizes the Governor in Council to" “issue to the Commission directions of general application on broad policy matters with respect to the Canadian telecommunications policy objectives”". An order made under that section is binding on the Commission (the Act, ss. 11(1) and 47(b)). At the time the decision under appeal was issued, two directions given by the Governor in Council were particularly relevant. The first one, issued in 2006, directed the Commission, when relying on regulation, to use measures that satisfy four criteria, one of them being:1(b)(iv) if they relate to network interconnection arrangements or regimes for access to networks, buildings, in-building wiring or support structures, ensure the technological and competitive neutrality of those arrangements or regimes, to the greatest extent possible, to enable competition from new technologies and not to artificially favour either Canadian carriers or resellers
Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives, S.O.R./2006-355 [40] The second direction, released in 2019, directs the CRTC to consider the extent to which its decisions "“enable innovation in telecommunications services, including new technologies and differentiated service offerings”": Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives to Promote Competition, Affordability, Consumer Interests and Innovation, S.O.R./2019-227, para. 1(a)(vi).
[41] Also of particular relevance for this appeal are the following definitions found in section 2 of the Act:"Canadian carrier means a telecommunications common carrier that is subject to the legislative authority of Parliament; (entreprise canadienne) "
"entreprise canadienne"" Entreprise de télécommunication qui relève de la compétence fédérale. (Canadian carrier) "
"telecommunications means the emission, transmission or reception of intelligence by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system; (télécommunication) "
"télécommunication"" La transmission, l’émission ou la réception d’information soit par système électromagnétique, notamment par fil, câble ou système radio ou optique, soit par tout autre procédé technique semblable. (telecommunications) "
"telecommunications facility means any facility, apparatus or other thing that is used or is capable of being used for telecommunications or for any operation directly connected with telecommunications, and includes a transmission facility; (installation de télécommunication) "
"installation de télécommunication"" Installation, appareils ou toute autre chose servant ou pouvant servir à la télécommunication ou à toute opération qui y est directement liée, y compris les installations de transmission. (telecommunications facility) "
"transmission facility means any wire, cable, radio, optical or other electromagnetic system, or any similar technical system, for the transmission of intelligence between network termination points, but does not include any exempt transmission apparatus. (installation de transmission) "
"installation de transmission"" Tout système électromagnétique — notamment fil, câble ou système radio ou optique — ou tout autre procédé technique pour la transmission d’information entre des points d’arrivée du réseau, à l’exception des appareils de transmission exclus. (transmission facility) " [42] Parliament expressly empowered the CRTC to subject the provision of telecommunications services by a Canadian carrier to conditions (the Act, s. 24). There is no dispute that the national carriers – Telus, Bell and Rogers – are Canadian carriers and that wholesale roaming is a telecommunications service within the meaning of section 2 of the Act.
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[131] In short, a careful examination of the whole legislative scheme governing radiocommunication and telecommunications in Canada shows that the Minister and the CRTC exercise different powers over different types of entities and for different purposes. These powers are complementary and sometimes overlap, and the fact that the Minister and the CRTC may reach different conclusions on a specific topic is by no means a sign that one is encroaching upon the jurisdiction of the other. It is rather because they arrive at their respective conclusions from different perspectives, with a view to implementing different policy objectives. . Teksavvy Solutions Inc. v. Bell Media Inc.
In Teksavvy Solutions Inc. v. Bell Media Inc. (Fed CA, 2021) the Federal Court of Appeal upheld a 'site-blocking' injunction against third party ISPs, barring their customers from accessing copyright-infringing content [paras 18-32]. The case also consider the Telecommunications Act role in this, finding that the Act's net-neutrality is not infringed by the common carrier where the court makes such an order [paras 33-44].
. Bell Canada v. British Columbia Broadband Association
In Bell Canada v. British Columbia Broadband Association (Fed CA, 2020) the Federal Court of Appeal considers the breadth of the CRTC's methodological choice when setting telecommunications rates:[184] The appellants have not demonstrated any error of law or jurisdiction arising out of any breach of procedural fairness or arbitrary decision-making. Their concerns center in largest part on the methods chosen by the Commission and the Commission’s conclusions when it applied those methods to the evidence before it. The Commission may adopt and apply any method it considers appropriate for determining rates (Act, subsection 27(5); Bell Canada v. Canadian Radio-Television & Telecommunications Commission, 2009 SCC 40, [2009] 2 S.C.R. 764, at paragraph 40; Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147, at paragraph 81). The proper avenue of recourse lies with the Commission itself by way of a request for reconsideration or by way of an appeal to the Governor in Council.
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