By Ahmad Hathout
The CRTC on Friday denied applications from Bell and Ontario charging that the commission made an error in a previous decision by failing to clarify that it had exclusive jurisdiction over long-distance calls in correctional facilities.
The commission said Friday that this issue was not central to its 2024 decision – which determined that those call rates were forborne from regulation since 1997 and it did not have authority to retroactively adjust the rates charged by Bell between 2013 and 2021 – and that the Telecommunications Act does not give the CRTC “authorities in exclusive terms.”
In other words, the CRTC’s goal in the 2024 decision was to explain the 1997 decision and the remedies available under the law, but that “it is ultimately a matter for the courts to determine whether they have the jurisdiction to grant the remedies requested by the Class Applicants.”
A class of plaintiffs had proposed a class action lawsuit against Ontario and Bell for the telco allegedly charging “unconscionable” rates for long-distance calls in correctional facilities between 2013 and 2021. (Bell and Ontario argue that these rates were set appropriately to match those charged to customers in the local community.)
Bell and Ontario argued in separate review-and-vary applications of the 2024 decision that the CRTC erred by saying that these rates are forborne from regulation without clarifying that forbearance does not mean the commission is relinquishing its exclusive authority over the rates. In other words, that forbearance from regulation is itself a regulatory mechanism. Absent that affirmation, the applicants argued the courts could make conflicting determinations as to what proper rates should have looked like in the period in question.
The CRTC on Friday took issue with the applicants’ use of the word exclusive, which the parties hoped would preclude courts from assuming jurisdiction: “While the majority of provisions under the Act pertain to the Commission’s objectives, powers, and responsibilities, they also address the roles of other entities in administering the Act, including those of the Governor in Council, the Minister of Industry, the provinces, and the courts,” the CRTC said.
“Although Telecom Decision 2024-324 did not identify the jurisdictional question raised by Bell Canada as a central issue to be addressed, it did provide views related to jurisdictional issues raised by the parties where they were relevant to address the central issues,” the CRTC added.
“In particular, the Commission acknowledged that the Commission for Complaints for Telecom-television Services Inc.’s mandate precludes it from adjudicating long-distance pricing and confirmed that it has the authority to review and change previous decisions, including decisions related to forbearance. Moreover, the Commission confirmed that it can reassert its authority for a previously forborne service.”
The commission noted that even if it did reassert its authority for a previously forborne service, it would not be able to do so in the context of this class action lawsuit because it does not have the authority to retroactively adjust rates.
In an intervention, the Public Interest Advocacy Centre supported inmates having recourse in the civil courts because it argued the courts have concurrent jurisdiction with the CRTC.
A lower Ontario court ruled – and the province’s Court of Appeal upheld – that the rates issue falls within the scope of the CRTC’s ambit, and it was there that the aforementioned questions would need to be placed. As such, the Court of Appeal put a temporary stay on the class action until those questions were addressed.
The CRTC said Friday it addressed the appeal court’s questions of jurisdiction by “affirming that the rates at issue were included in those it forbore from regulating” in the 1997 decision.
“The Court of Appeal itself does not appear to have highlighted either the exclusivity of the Commission’s jurisdiction or whether forbearance is a ‘form of regulation’ as points on which it expected to receive clarity from the Commission,” the CRTC said Friday.
The CRTC also said that “forbearance from regulation,” on which clarity was requested, is “standard shorthand for the exercise of section 34 of the Act, used for decades by both the industry and the Commission.”
