The appeal of Shaw Cablesystems (“Shaw”) from the dismissal of its action against MTS Communications (“MTS”) on the ground that the Court did not have jurisdiction to hear the matter was dismissed where the Manitoba Court of Appeal found that the issues appropriately belonged before the Canadian Radio and Telecommunications Commission (“CRTC”)

Administrative law – Decisions of administrative tribunals – Canadian Radio-Television and Telecommunications Commission – Judicial review – Jurisdiction of court – Permits and licences

Shaw Cablesystems (SMB) Ltd. v. MTS Communications Inc., [2006] M.J. No. 80, Manitoba Court of Appeal, February 28, 2006, Scott C.J.M., Huband and Hamilton JJ.A.

Shaw and MTS competed as providers of internet, cable, television, and communications services in Manitoba. Both were licensed broadcast distribution undertakings (“BDU”) under the Broadcast Act and the Telecommunications Act and were subject to the jurisdiction of the CRTC. In June 2000, the CRTC issued a Public Notice announcing its revised policy concerning the inside wire regime. This Notice identified four principles, including the principle that all licensees were to refrain from damaging another licensee’s distribution, cable drop, customer service enclosure, or panel box.

Shaw claimed that MTS unlawfully disconnected various pieces of equipment belonging to Shaw. The motions judge held that the heart of the dispute was not an action in the tort of trespass, but rather, the complaints were integrally related to the CRTC’s regulation of competition in the marketing of broadcast to the public. Shaw appealed this decision, arguing that the essential character of the dispute was property damage giving rise to tortious causes of action and did not involve a dispute over broadcast rights.

The Manitoba Court of Appeal dismissed the appeal holding that the jurisdiction of the CRTC over Shaw’s allegations against MTS was unassailable. The Court indicated that it was artificial to suggest that there was a dividing line between inside wire as opposed to all other elements of a broadcasting distribution system which fell within the CRTC’s jurisdiction. The relevant regulations impacted directly on subscriber’s and provider’s rights, including equipment and facilities with respect to the entire distribution system. The regulations inevitably impacted on rights and obligations when a change in BDU occurred, relating to equipment and facilities, including both inside wire and outside distribution facilities. This did not change the heart of the matter to a private law dispute.

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