By Ahmad Hathout
The country’s highest court ruled Thursday that it will not examine questions related to the CRTC’s decision to reverse a 2019 order that proposed lower wholesale internet access rates for competitors.
The Supreme Court of Canada (SCC) rejected TekSavvy’s October application that requested a review of a lower court’s decision to deny that the CRTC had to follow established costing methodology when, in 2021, it “arbitrarily” decided to maintain higher wholesale rates that competitors pay to access the larger provider’s networks. The regulator said it quashed the 2019 decision due to methodological errors.
TekSavvy wanted the SCC to help define the meaning of the terms “method or technique” that it argues the regulator didn’t follow when it set the 2016 interim rates on which it inevitably fell back after it scrapped the lower rates.
“If the CRTC simply disregards its duty to set just and reasonable wholesale rates by employing a method or technique, wholesale-based ISPs can have no confidence that they will have access to wholesale services at reliable, evidence-based rates, and by extension no confidence they will be able to viably compete in the internet market,” TekSavvy said in its leave application to the SCC, which doesn’t publish reasons for rejecting an application.
The lower court rejected TekSavvy’s argument on the determination that the regulator cannot be constrained by rigid math calculations when it must balance a whole host of factors when making a policy decision.
The “plain meaning of ‘method’ and ‘technique’ is broader and more general than Teksavvy’s constrained meaning that requires rigid concreteness, calculability and a solely objective basis,” the appeal court ruled last summer. “A ‘method’ is just a way of doing something. And a ‘technique’ is nothing more than a particular way of doing something.
“How to arrive at a rate involves more than the processing of information objectively and logically against fixed, legal criteria,” the appeal court continued. “Rather, it is a complex, multifaceted decision involving sensitive weighings of information, impressions and indications using criteria that may shift and be weighed differently from time to time depending upon changing and evolving circumstances and regulatory experience.”
TekSavvy said this determination “removes the statutory guardrails on the CRTC’s rate-setting obligation.”
The SCC’s decision also means it won’t hear TekSavvy’s request for the court to explore certain questions of bias surrounding a meeting between then-head of the CRTC, Ian Scott, and Bell CEO Mirko Bibic that was logged in the federal lobby registry as a broadcasting matter, the appeal court determined The meeting came a week after the telco filed an appeal against the CRTC’s 2019 rate decision.
TekSavvy declined to comment for this story.
