By Ahmad Hathout
The attorney general of Canada (AG) is asking the Federal Court to reject an application filed by Cogeco and Eastlink asking the judicial body to review whether cabinet did not provide the legally required justification for rejecting their request to send back a CRTC decision that allows the three largest telecoms to access the wholesale internet framework.
The AG said in a submission last week that the parties have already filed a review of the decision directly to cabinet and have won an appeal related to the CRTC’s decision that rejected their request to ban Rogers, Bell and Telus (Big 3) from the regime, so it doesn’t make sense for the court to look at it.
“This Court should not adjudicate the merits of this judicial review application that, in substance, concerns the 2024 Policy, given that the CRTC has already reviewed this policy by way of the R & V Decision, and that this new decision has now been challenged by the applicants through two mechanisms specifically provided for in the Telecommunications Act,” the AG says in its October 16 submission, adding the judicial review is the avenue of last resort.
“The applicants can exhaustively challenge both the factual and legal findings of the [review and vary] Decision through the FCA appeal and the new petition to the GIC, and they have done so,” the AG says. “Those forums are fundamentally better placed than the Federal Court on the present judicial review application to directly engage with and address the applicants’ grievance of the Big Three’s access to mandated wholesale high-speed Internet services.”
The AG says there’s “no useful purpose” in having this extra review because cabinet will have the up-to-date record to review the decision; an order from the Federal Court would lead the governor in council to exercise its powers to vary the 2024 policy well beyond the one-year time limit; and there is the risk of contradictory decisions of the Federal Court and the Federal Court of Appeal, which has agreed last month to hear Cogeco’s and Eastlink’s challenge to the CRTC’s rejection of their review and vary application.
The basis of the judicial review application from Cogeco and Eastlink is that cabinet, under the recommendation of Industry Minister Melanie Joly, allegedly did not give sufficient reasons to explain why it was rejecting their argument that the Big 3 should be banned from the regime.
“Instead of explaining and justifying its decision to sit on the sidelines, the [Governor in Council (GIC)] had a Minister send out a five-paragraph press release,” said the judicial review application, dated September 2. “In this laconic decision, the GIC fundamentally misapprehended the matter submitted to it; failed to grapple at all – let alone meaningfully – with key submissions; and failed to acknowledge – still less explain and justify – a startling policy U-turn.
“In manifestly failing to live up to the basics of the culture of justification in favour of blind deference toward the CRTC, the GIC effectively abdicated its responsibilities under s. 12(1) of the Telecommunications Act.”
About a week after the judicial review application was filed, the regional telecoms were granted on September 10 that application for the Federal Court of Appeal to review a decision by the CRTC to reject their review and vary application that sought to amend the final wholesale internet framework to carve out an access exception for the Big 3.
Roughly a week after that application was granted, Cogeco, Eastlink, Rogers, TekSavvy, the Competitive Network Operators of Canada (CNOC) and SaskTel filed petitions to cabinet asking it to revisit Joly’s decision to deny their appeals.
The CRTC has twice denied appeals from opponents of its 2024 policy, which the regulator says boosts competition because the large service providers can lease internet in areas where they don’t have networks – including where the smaller players operate.
Rogers and Bell say the policy will disincentivize investment in networks and the smaller players say their businesses are now at risk with the encroachment of deeper pocketed competitors. The CRTC said it doesn’t believe the market share capture of the large players will be significant.
