An Ontario company seeks leave to appeal a recent decision by the Canadian Radio-television and Telecommunications Commission (CRTC) on wholesale broadband Internet tariffs that sent shockwaves through the industry.
In one May decision, the CRTC reversed its own 2019 decision that lowered the rates that large communications companies like Bell and Rogers charge small Internet service providers (ISPs) to access their networks. This decision had sparked litigation by some major players in the industry, but the decision was later upheld by the Federal Court of Appeal, with the Supreme Court refusing leave to hear it.
But TekSavvy, from Chatham, Ont., Is send the case to court, arguing that reverting to the tariffs that existed before the court proceedings is not an appropriate “method or technique” for setting tariffs under the Telecommunications Act, that the commission violated TekSavvy’s legitimate expectation of a thorough review and that the conduct of CRTC Chairman Ian Scott which led to the decision raises a reasonable apprehension of bias.
Julie Mouris of Conway Litigation, who represents TekSavvy, said the CRTC overthrow surprised many in the telecommunications industry.
“TekSavvy really believes in increasing competition and felt that the 2019 order was a good tool to do it, and having this completely reversed is really disappointing,” she said. “Wholesale rates are now considerably higher than in the 2019 order, so companies like TekSavvy have to pay much higher wholesale rates to incumbents, which in turn likely increases costs for incumbents. consumers. This is a stunning reversal from the 2019 decision that drastically cut rates. “
As part of its bias argument, the company cites a number of ex part encounters Scott has had with industry players, including a one-on-one with Bell’s COO at an Ottawa bar in late 2019, as well as his openly expressed preference for “facilities-based” competition that would benefit large companies.
Mouris noted that the legal test for an apprehension of bias is not necessarily the presence of bias, but what a reasonable person who is informed about it would think, and cited a previous Federal Court decision.Shoan v. Canada (Attorney General) 2017 FC 426) in which the tribunal was troubled by similar conduct from a CRTC commissioner.
“From TekSavvy’s perspective, taking this conduct as a whole and then reviewing the decision raises the issue of a reasonable apprehension of bias,” she said. “I think it meets that legal test, especially when you attend a meeting that takes place just a week after a legal challenge has been initiated by Bell.”
And going through the courts is not the only route TekSavvy has taken – it has also petitioned the federal government reinstate the 2019 tariffs order and remove Scott from his position. Competitive Network Operators of Canada (CNOC), which represents a number of small players in the telecommunications industry, has filed an application similar petition.
TekSavvy said he hopes the federal government will step in quickly and render the lawsuit moot. Its vice president of regulatory and transport affairs, Andy Kaplan-Myrth, said it was “clear that the solution to this fiasco lies with the cabinet”.
“The Cabinet must restore the order of 2019, which was based on years of process, mountains of evidence and has withstood three challenges,” he said. “Pending Cabinet decision, we will continue to use all legal means at our disposal to overturn the CRTC’s arbitrary and anti-consumer decision.
A representative of the CRTC said the commission could not comment on the case because it was before the courts. The federal government has been unable to provide comment at press time.
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