Quebecor said it welcomes the decision
By Ahmad Hathout
The Federal Court of Appeal ruled Wednesday that the CRTC did not err when it chose Quebecor’s rate to access Rogers’s wireless facilities as a mobile virtual network operator (MVNO) during final offer arbitration (FOA).
The court rejected all three arguments the cable giant put forth for why it believed the regulator erred when it chose the lower rate, which it argued was unjust and unreasonable per the Telecommunications Act.
Rogers argued that the CRTC erred by ruling in July 2023 that just and reasonable rates can “include rates that may not provide an immediate-term return on investment” or “require an otherwise profitable enterprise to incur a modest or temporary loss in one line of business while other lines remain profitable.”
But in the five-page decision, the high court rejected that argument on two bases: that the case law Rogers brought before the court – a decision of the Supreme Court of Canada in Ontario v. Ontario Power Generation Inc. – focused on a fair rate of return over the long term, not the short term; and even if it addressed the short term, the court said it felt its involvement wouldn’t be warranted because the CRTC already reasoned elsewhere in the decision that it was not convinced the cable giant would not be able to recover its costs in the short term.
The court also said the regulator did not act unfairly when it made adjustments to Rogers’s proposed rate without providing it certain details to make reactive submissions. The court said those adjustments to Rogers’s cost inputs were just “one factor among others to explain the CRTC’s choice to side with Quebecor’s submission on the FOA” and that the commission did not adopt an unexpected methodology.
“Rogers was not denied the right to know the case it had to meet and to make submissions in that regard,” the court added. “Rogers was able to make its submissions, which the CRTC considered. The CRTC was simply unconvinced.”
The court also ruled Rogers could not have had an expectation it would be privy to certain Quebecor materials justifying its proposed rate, reasoning that both parties entered FOA with the knowledge that they were bound by a confidentiality regime wherein some submitted materials would be withheld from the participating parties.
“The lack of disclosure did not impede Rogers’ knowledge of the case it had to meet or its ability to meaningfully respond,” the court said.
The final matter related to a specific document that Quebecor provided in confidence to the Competition Tribunal when it was studying the sale of Shaw’s Freedom to Quebecor. Rogers wanted to see that document for the MVNO rate matter, but the court noted that the CRTC rejected its request on the basis that its practice doesn’t generally provide parties a right to seek discovery and that Rogers did not seek an exception to this general practice.
The justices noted that the CRTC has broad discretion on these matters and pointed to a concern from the commission that these requests would delay the conduct of the proceeding.
The court ruled from the bench, meaning it made its decision orally at the end of the hearing that day. The decision’s reasons were filed today.
Rogers did not respond to a request for comment in time for publishing, but we will update the story if/when we get a response. Quebecor said in a statement later on Thursday afternoon that it “welcomes this decision favorably.”
The CRTC mandated access to the largest players’ wireless networks by regional service providers in April 2021. Rogers and Quebecor initially agreed to rates on voice and text, but didn’t reach an agreement on the cost for wholesale data. The CRTC, which granted a final offer arbitration hearing in May 2023, determined that Quebecor’s rate would allow it to offer more data and therefore more plans to better compete in new markets.
Rogers brought the original application for leave to appeal in August 2023, which was granted in September 2024.
Photo of SaskTel tower, via SaskTel
