By Denis Carmel
TORONTO – After failing to get an injunction to prevent the Department of Innovation, Science and Economic Development Canada (ISED) from issuing 3500 MHz spectrum licences to Videotron, Telus was denied yesterday a judicial review of ISED’s decision to deem Videotron eligible to bid on set-aside spectrum in the 2021 auction.
Although it is not a surprising decision, the Federal Court offers some harsh language towards Telus’ application.
“The Decision, which permitted Vidéotron to bid on and obtain set-aside spectrum in British Columbia, Alberta and Manitoba [together Western Canada], is now challenged by TELUS Communications Inc. [TELUS] on procedural and substantive grounds. For the reasons that follow, I find the set-aside eligibility assessment process and the Minister’s decision to have been fair and reasonable, and will dismiss the Application,” reads the 71-page decision, written by Justice Diner.
Of course, Telus and the other national mobile service providers (NMSPs), Bell and Rogers always have a problem with set-asides that reserve spectrum in auctions for non-NMSPs.
The 3500 MHz spectrum licences were awarded in July 2021 and generated $8.91 billion for the federal government. The judicial review was initiated by Telus in August 2021 and included a request, as mentioned, for the licences to not be issued to Videotron.
The trial set in February 2022, happened after many interventions, as can be seen in the registry (140) and the ruling spends a lot of time settling ancillary matters.
“I find TELUS to be overly concerned with formality and to be elevating, in literal terms, the form above its substance,” the ruling states in relation to errors in forms alleged by Telus.
“An applicant in a judicial review has the burden of showing there are sufficiently serious shortcomings, consisting of central or significant flaws, to render the decision unreasonable. This burden cannot be met by demonstrating superficial or peripheral missteps,” the ruling later states.
“Reviewing Courts must also remain attentive to decision makers’ demonstrated expertise; an outcome which might on its surface appear puzzling may “nevertheless [accord] with the purposes and practical realities of the relevant administrative regime and [represent] a reasonable approach given the consequences and the operational impact of the decision.””
“To isolate words and remove them from their broader context, is akin to cropping a person out of one background and dropping them into another. While certainly possible to do, the doctored picture depicts an altered reality from that seen by the original viewers, and interferes with the new viewer’s ability to situate the person in their original surroundings — somewhat akin to removing the dots from a written page so that one cannot connect them,” the decision explains.
“In short, TELUS’s opposition to the set-aside eligibility criteria, in favour of another model, were neither ignored nor unreasonably overlooked. Rather, the Minister clearly decided to reject them in favour of the eligibility criteria that were adopted, and which I have found were reasonably applied in their entirety to Vidéotron’s application,” the court concludes.
Essentially, Telus was taken behind the woodshed, and one feels for the Telus team reading this decision. It is risky to predict if the company will appeal the decision, but we guess they should put an end to this, at this point.
