By Ahmad Hathout
OTTAWA – The Supreme Court of Canada will not hear a big telecom appeal about the alleged incorrectness of the CRTC’s decision to reduce the rate for internet capacity purchased by smaller service providers.
The decision, announced Thursday morning, exhausts the legal route for a challenge of the August 2019 rates that dramatically reduced the amount that smaller providers would need to spend to purchase network capacity from the larger players. The rates were never implemented because it almost instantly was appealed to the CRTC, the federal government, and the courts.
The SCC does not give reasons for why it allows or denies a leave to appeal application.
While the federal government said in response to petitions that the rate in some instances would reduce investments in networks, the Federal Court of Appeal ruled that the regulator took into consideration policy considerations that fulfilled its obligation under the Telecommunications Act.
The large carriers including Rogers, Bell, Shaw, and Quebec said in court submissions they were hoping to get a clarification about the new December 2019 Vavilov ruling, which gives courts greater latitude to make determinations on correct applications of the law rather than defer to a regulator’s ability to make decisions on reasonableness.
They argued that they weren’t sure how the lower court extrapolated a policy line of reasoning from the CRTC’s decision. The challengers argued that a list of links to previous policy decisions does not give a full explanation about how the regulator reasoned the case, which they said they are owed.
It was unlikely that the decision would’ve factored in the CRTC’s review of the decision anyway because the regulator insulated itself from the process outside of what was submitted to it. CRTC chairman Ian Scott said as much at a committee hearing when asked whether the federal government’s cabinet decision, which did not actually send the decision back because the regulator was already looking at it, would factor into its second look.
What’s now up in the air is whether the second set of final wholesale rates, whenever they come, will further be appealed if either side doesn’t like them, which would further prolong the process.
The big telecoms must pay legal costs to respondents TekSavvy and the Competitive Network Operators Consortium, the SCC said.
