Telco suggests ‘rare’ use of subpoena power if AG doesn’t hand over materials
By Ahmad Hathout
Last month, Canada’s attorney general (AG) filed a motion to strike as moot an application filed by Telus in December that asked the Federal Court to quash a cabinet order that asked the CRTC to reconsider allowing the three largest telecoms to use the fibre facilities of Bell and Telus in Ontario and Quebec.
The AG argues that, because the CRTC declined to change the interim decision after a proceeding on that order, Telus’s application – which alleges that cabinet held meetings with competitors without providing an opportunity to respond before the order – has no “live controversy” to cling to. And because the CRTC has supplanted that temporary order with a final wholesale framework in August, which is not subject to litigation, the AG argues the application has no practical effect.
But in a response filed by Telus, dated March 25, the Vancouver-based telco argues that the reconsideration order from cabinet triggered statutory powers allowing the Governor in Council to vary or rescind that CRTC decision until May 5, which would be 90 days after the CRTC’s February 3 reconsideration decision. On top of that, several applications before the regulator requesting a review of the commission’s final wholesale framework were spawned by the reconsideration order. Telus argues that the justification for these applications, which relied on the reconsideration order, would crumble if the court finds that the order was based on an unfair process.
Whether or not the reconsideration order triggered these final order challenges is speculative, the AG argues, because there’s no way to know whether these parties already had contemplated challenging the CRTC’s decision in the absence of said order. In any event, it is irrelevant because the reconsideration order has been dealt with and hearing the matter would be a waste of limited judicial resources, the AG continues.
If the court does move forward, it could risk – for no legal value – prejudicing the challenges against the final wholesale framework that expanded the interim order, the AG argues.
Following its judicial review application, Telus filed a motion to compel both the Governor in Council and the industry minister to produce materials to assist in its legal argument. The motion came after the AG denied a request by Telus, dated December 20, to provide it with the record in possession of the Governor in Council in the making of the reconsideration order.
Up to this point, Telus has relied on public records – specifically, the federal lobbyist registry – to point to instances where wholesale access has been listed as a topic of discussion between competitors and officials in the industry department before the reconsideration order.
Telus’s allegation rests on alleged (in)actions of the minister himself: holding communications with telecoms adverse to it, such as those who, unlike Telus, oppose the Big 3 having access to the wholesale internet regime; and failing to provide the provinces an opportunity to consult before the reconsideration order was made, as is required by section 13 of the Telecommunications Act.
The specific legal issue is whether the word “tribunal” under the Federal Courts Act applies to the minister. Telus argues that the minister is an integral part of the reconsideration order, from the procedural prerequisite to the recommendation to the Governor in Council.
In the event the AG still objects, Telus suggests the “rare” use of the court’s subpoena power under r. 41 of the Federal Court Act to compel the production of the record.
It’s a long way of saying Telus believes its application is not moot. Telus is asking for an oral hearing because of the complexity of, and the public’s interest in, the case.
Bell filed the original petition to cabinet in February 2024, months before the CRTC’s final wholesale ruling. Bell requested cabinet to rescind the decision or, at least, refer back the specific issue in question here – access by the Big 3 to the aggregated middle- and last-mile fibre facilities on CRTC-determined rates – because of the claimed negative impact on investment in fibre builds.
Following the CRTC’s decision in February not to alter the interim decision — in part because Telus has used the framework to provide gigabit services and therefore increase consumer choice — Bell announced a reduction in spending on its direct fibre rollout for this year, with the expectation that it will reach fewer than the original target of 8.3 million households for pure fibre. However, it added a caveat that the CRTC can still sway its spending this year if it decides to change its position on Big 3 access when it is expected by the summer to decide on those consolidated review-and-vary applications against the final framework.
The final framework expands the interim regime across the country but gives the telcos, including SaskTel, a five-year access moratorium for their new fibre builds so they have an opportunity to recoup their investments. It does not ban the Big 3 from accessing the wholesale internet regime except where they are in their own operating territory with their own networks so as to continue incentivizing investment.
Rogers and CNOC, Eastlink and Cogeco filed review-and-vary applications to the CRTC asking it to ban the Big 3 from accessing the wholesale internet regime completely, regardless of technology and geography. TekSavvy filed its own application urging the CRTC to not allow the commission’s five-year access protection for Bell and Telus for new builds inside their operating territories, and also asking for a specific timeline on when the cable companies’ last-mile fibre builds will be subject to the aggregated access regime.
