Administrative law – Decisions of administrative tribunals – Canadian Radio-Television and Telecommunications Commission – Jurisdiction – Municipalities – Power to enact by-laws
Federation of Canadian Municipalities v. AT & T Canada Corp.,  F.C.J. No. 1777, Federal Court of Appeal, December 17, 2002, Létourneau, Nadon and Pelletier, JJ.A.
This was an appeal from a decision of the Canadian Radio-Television and Telecommunications Commission (the “CRTC”) involving s. 43(4) of the Telecommunications Act, S.C. 1993, c. 38. Five appeals were joined in a single hearing, in which the appellants included the cities of Calgary, Ottawa, Toronto, Vancouver and Halifax, and the Federation of Canadian Municipalities.
The issue on appeal was whether the CRTC erred in law, exceeded its jurisdiction or improperly exercised its discretion in rendering its decision.
In the course of its hearing, the CRTC reviewed the terms and conditions sought to be imposed by the city of Vancouver on the Respondent, Ledcor Industries Ltd., which was seeking access to the municipality’s roadways to install fibre optic lines. Notice of constitutional questions was sent by the appellants challenging the constitutional validity, applicability or operability of ss. 42, 43(2) & (4) and 44 of the Act. At the hearing, it was conceded that these sections were constitutionally valid. The debate then revolved around the scope of the decision under attack, its impact in future cases and the jurisdiction of the CRTC to adjudicate as it did upon the issues before it.
The CRTC decided that Ledcor should be granted access to the municipal lands subject to conditions, including that it pay $7,616 to the city for recovery of costs incurred to provide access. Ledcor was not required to pay land charges or access fees and fixed common costs, as requested by the city.
The Appellant Federation argued that by asserting exclusive jurisdiction, the CRTC eliminated the possibility for municipalities to regulate and manage in an orderly manner the rapidly increasing traffic on the roadways used by carriers. In particular, the Appellant Federation argued that, as a result of the CRTC’s decision, municipalities are now deprived of their constitutional powers to enact bylaws to protect their property rights.
Létourneau J.A., Nadon J.A. concurring, held that they did not read the CRTC’s decision as depriving the provinces and the municipalities of the legislative powers conferred upon them by the Constitution. It was further held that the decision should not be read as altering or calling into question the existing constitutional principles applicable in such circumstances. Provincial authorities can legislate in matter constitutionally assigned to them, but such legislation is subject to the interjurisdictional immunity principle if the legislation affect a vital part of a federal undertaking or the paramountcy doctrine if it conflicts with a federal law. The validity of any municipal bylaw or provincial legislation purporting to manage the traffic on its roadways and protect property rights will remain subject to these constitutional limitations.
With respect to the jurisdiction of the CRTC to adjudicate upon the terms and conditions sought to be imposed by the city of Vancouver, it was held when the dispute arose, the city of Vancouver was of the view that the CRTC had jurisdiction to review and determine the conditions of a carrier’s access to its facilities. The Appellant City cannot now contend that the CRTC did not have jurisdiction to deal with these matters, or exceeded it in so doing.
The court held that it cannot be doubted that the CRTC had jurisdiction to embark upon an inquiry into the terms and conditions sought to be imposed by the city of Vancouver, and it did not lose or exceed that jurisdiction by rendering the decision that it did. A finding of lack of jurisdiction is not one that can be made lightly because decisions made without jurisdiction can, at any time in subsequent proceedings, be the subject of collateral attacks, thereby undermining the finality of decisions and jeopardizing the activities of those who acted pursuant to these decisions.
The court concluded that, in the case at bar, the exercise by the CRTC of its jurisdiction involved the exercise of a discretionary power to grant access to a carrier and to determine the conditions of such access.
Accordingly, the appeals were dismissed.
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