By Ahmad Hathout
The parties involved in a class action lawsuit over historical long-distance rates charged at Ontario correctional facilities are in “jurisdictional limbo” because the CRTC refuses to definitely state that it has domain over those rates, Bell claims in a new court filing.
Nearly a month after Ontario filed its own leave to appeal application at the Federal Court of Appeal, the telco is similarly asking the high court to find that the regulator failed to address an issue central to the lawsuit: that the CRTC’s forbearance from regulating those rates is itself an exercise in regulation, which is a point challenged by the plaintiffs in the lawsuit.
In late September, the CRTC rejected applications filed by Ontario and Bell that requested that the regulator make a decision that matter, which would place these call rates squarely in its domain and have the ultimate effect, the applicants believe, of avoiding a scenario where different courts make conflicting determinations on what those rates should be.
The commission ruled that the issue was not central to its December 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 in the class action period between 2013 and 2021.
The regulator used the term “forbearance from regulation” in its December decision, stating in its follow-up determination in September that the phrase has been used by it and the industry for decades. But Bell and Ontario say this does not clarify the issue on which the Ontario Court of Appeal is seeking guidance to move onto next steps in the class action.
“This statement does not address what forbearance is and, most importantly, whether it is an exercise or exhaustion of jurisdiction,” Bell says in its leave to appeal application filed this week. “It fails to deal with the substance of what was at issue. Indeed, the CRTC explicitly declined to address the question posed by Bell, wrongly concluding that the discretionary nature of declaratory relief gave it ‘broad scope to define the central issue it considered appropriate to address.’”
“The fact that declaratory relief is discretionary does not afford decision-makers the ability to altogether ignore the legal test guiding whether it should exercise its discretion, or to make no decision as to whether the declaration actually sought should be granted,” Bell says.
The telco alleges the CRTC mischaracterized the central issue put forth by the telco, which asked the CRTC to determine if the rates matter falls in the regulator’s “exclusive jurisdiction.”
In its September decision, the CRTC said that the Telecommunications Act does not give it “authorities in exclusive terms,” concerned that definitely stating as much would preclude the courts’ jurisdiction to apply “laws of general application to rates charged by a telecommunications company.”
But Bell claims that the CRTC incorrectly applied “exclusivity” against the entirety of the Telecommunications Act, when it should have focused the issue against the relevant section (34) and its implications.
“The CRTC’s fundamental misunderstanding of the central issue before it led it to misconstrue Bell’s submission as being a request to determine whether the courts of Ontario have jurisdiction over the remedies sought from them,” Bell claims.
“A finding that forbearance is not (or is) an abdication of jurisdiction by the CRTC informs but does not usurp the Ontario courts’ determination of their jurisdiction,” the application reads. “This is a question that requires an interpretation of the CRTC’s home statute and is one that the CRTC is well placed to address.”
Bell says a decision on whether it exercises or relinquishes jurisdiction when it forbears has significance beyond this class action.
“The courts are unsure as to the legal significance of a forbearance decision by the CRTC, such that the Ontario Court of Appeal found it necessary to seek guidance from the CRTC,” the application reads.
“When that guidance is finally provided, it will impact all forborne services.”
The proposed class proceeding was launched against Bell in February 2020, but later amended to include Ontario in the summer of that year. The class of plaintiffs is seeking retroactive financial relief for applicants who allege the telco – since replaced as the service provider for Ontario correctional facilities – charged “unconscionable” long-distance rates between 2013 and 2021. Bell and Ontario argue that these rates were set appropriately to match those charged to customers in the local community.
