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Media & Communications Law - Telecommunications - Telecommunications apparatus -

Thursday, November 24, 2016 @ 7:00 PM  

Appeal by the plaintiff, Rogers Communications, from the dismissal of its breach of contract action against the defendant, Bell. Rogers and Bell provided broadcasting distribution services and telecommunication services to most populated areas of New Brunswick. New Brunswick Power Corporation (NB Power) and Bell were parties to an agreement which allowed Bell to grant permits to access NB Power’s poles. Rogers, for the most part, did not own support structures in New Brunswick. Rogers and Bell signed a Support Structures License Agreement (SSA) in the form prescribed by the Canadian Radio-television and Telecommunications Commission (CRTC) so Rogers could access the support structures of Bell and NB Power. NB Power subsequently gave notice to Bell that it would terminate their agreement. Bell took the position that the SSA with Rogers was therefore terminated. Rogers was required to pay NB Power a significantly higher rate to maintain access to the support structures. Rogers sued, claiming the difference from Bell. The trial judge found that the SSA was not a contract, but rather an approved model document governing a mandatory supply of service in accordance with a tariff in a regulated industry. When NB Power terminated its agreement with Bell, Bell no longer had the right to grant a permit to those support structures. As the service it agreed to supply was no longer one it could lawfully supply, Bell’s obligations to Rogers under the SSA with respect to the poles came to an end. Even if the SSA was a contract, it was frustrated by NB Power’s decision to terminate its agreement with Bell. Rogers appealed.

HELD: Appeal dismissed. The trial judge did not err in finding that the SSA was a regulatory-approved model document rather than a contract or in interpreting the SSA in accordance with principles of statutory interpretation rather than contract law principles. It was factually unassailable that the SSA was a mandatory document in accordance with CRTC requirements rather than a voluntarily negotiated bargain between the parties. Rogers’ position that its claim must be assessed under contract law principles disregarded the reality surrounding the formation of Bell’s obligations to Rogers under the tariff regime. The trial judge did not err in finding that NB Power’s termination of its agreement with Bell resulted in a corresponding termination of Bell’s obligations to Rogers under the SSA, as the tariff ceased to apply once Bell lost the right to grant access to NB Power’s poles.