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Wednesday, October 14, 2020 @ 3:49 AM  

Lexis Advance® Quicklaw®
Appeal by telecommunications companies from a CRTC Telecom Order retroactively setting final rates. The appellants were large companies that provided independent service providers, the respondents, wholesale high-speed access services to their infrastructure to facilitate delivery of Internet services to retail customers. The CRTC order under appeal established retroactive final wholesale rates that were lower than prior interim rates. The appellants submitted that the CRTC breached principles of procedural fairness, erred in law or jurisdiction by failing to set just and reasonable rates and by imposing an unconstitutional tax, and failed to provide sufficient reasons for the order.

HELD: Appeal dismissed. The issues of whether the rates imposed were just and reasonable was a question of fact rather than a question of law or jurisdiction capable of forming a valid ground of appeal. The CRTC did not engage in a breach of procedural fairness, arbitrary decision-making or disregard any legitimate expectation as to the conduct of the rate-setting process. The parties were aware of the issues and had sufficient opportunity to submit company-specific information and offer submissions relevant to those issues. The appellants’ complaint with the quantum of tariff approved by the CRTC was outside of the scope of the Court’s reviewing function. The CRTC did not improperly fetter its discretion by relying exclusively upon prior determinations without regard to the law or the parties’ evidence and submissions. The CRTC’s reasons satisfactorily addressed the policy objectives and the arguments and issues raised by the parties. The decision exhibited a focus on the use of market forces where possible, and a focus on the policy objectives of proportionality, efficiency and neutrality. The imposition of retroactive rates in the face of a finding that the interim rates were not just and reasonable was supported by the evidence. The issue of whether the decision imposed an unconstitutional tax was not raised at first instance and was thus not available on appeal.

Bell Canada v. British Columbia Broadband Assn., [2020] F.C.J. No. 910, Federal Court of Appeal, E.R. Dawson, D.W. Stratas and J.M. Woods JJ.A., September 10, 2020. Digest No. TLD-October122020004