The appeal by Telus from a CRTC decision was dismissed where the Court found that Telus was not denied procedural fairness as an intervener in the decision-making process

28. September 2010 0

Administrative law – Decisions of administrative tribunals – Canadian Radio-Television and Telecommunications Commission – Hearings – Parties – Intervenor status – Judicial review – Procedural requirements and fairness

Telus Communications Co. v. Canada (Canadian Radio-Television and Telecommunications Commission), [2010] F.C.J. No. 927, 2010 FCA 191, Federal Court of Appeal, July 19, 2010, Evans, Pelletier and Stratas JJ.A.

The CRTC made a decision and issued a bulletin outlining dispute resolution procedures relating to its decision setting a rate for Bell Canada to provide telecommunications services to the Department of National Defence. Bell had previously been providing these services and Telus was contracted to be the next provider. Telus was unable to start providing the services on time and the CRTC decision set the rate for Bell to charge after its contract expired until such time as Telus was able to institute its services. As Telus was unable to provide the services that it had contracted to provide, Telus was liable to indemnify the department for any financial losses sustained for paying Bell’s rates. Telus appealed from the CRTC’s decision-making process on the grounds that it was denied procedural fairness because it was not permitted to participate in in-camera meetings relating to the rate decision. Telus also alleged that it should have been given opportunity to correct certain statements made during the hearings which were prejudicial to Telus’s interest.

The Court granted Telus leave to launch the appeal under section 64(1) of the Telecommunications Act, S.C. 1993, c. 38. The Court noted that in the underlying proceedings, the CRTC had properly regarded Bell Canada and Public Works and Government Services Canada (“PWGSC”) as the only parties to a bilateral dispute. Telus was no more than an intervener in the proceeding, albeit one with an indirect financial interest in the outcome. The Court held that Telus’s status as a mere intervener reduced the content of the procedural rights to which it was entitled under the duty of fairness. The Court noted that it would have been open to Telus to take the position before the CRTC that, since it was, in effect, a guarantor against the loss caused to PWGSC by the delay, it should have full party status in the resolution of the rate dispute. However, Telus did not do so and, instead, attended the public part of the oral hearing only as an observer. The Court noted that Telus must live with the consequences of that decision. The Court rejected Telus’s further arguments that it had been denied procedural fairness noting that Telus had responded to a number of issues and made submissions on the matter and had not raised any objections to the procedures set out with respect to the oral hearing. The Court further concluded that the CRTC’s method of rate selection could only be set aside if it was unreasonable. The Court was not persuaded that the CRTC’s approval of the rate for Bell Canada constituted an unreasonable exercise, or failure to exercise, statutory discretion. In the result, Telus’s appeal was dismissed.

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