Mark Goldberg


www.mhgoldberg.com





A question of public importance

How do you get to argue a case at Canada’s Supreme Court? First, one must seek ‘leave to appeal’, permission to argue the case itself, by demonstrating that the case involves a ‘question of public importance’ to be settled by the Court.

If leave is granted, then the case itself gets to be heard.

Last Thursday, in separate filings by Bell and a nationwide consortium of Canada’s major cable companies, the Supreme Court received applications for leave to appeal the CRTC’s August 2019 Decision on Final rates for aggregated wholesale high-speed access services.

The Decision was appealed using all three channels legislatively set out in the Telecom Act: to Cabinet, to the Commission, and to the Court.

Cabinet issued its determination on the appeal in a highly nuanced Order in Council, stating “Canada’s future depends on connectivity”. While Cabinet did not explicitly refer the matter back to the CRTC, the Order clearly sent a signal that “the rates do not, in all instances, appropriately balance the policy objectives of the wholesale services framework and is concerned that these rates may undermine investment in high-quality networks… Incentives for ongoing investment, particularly to foster enhanced connectivity for those who are unserved or underserved, are a critical objective of the overall policies governing telecommunications, including these wholesale rates. Given that the CRTC is already reviewing its decision, it is unnecessary to refer the decision back to the CRTC for reconsideration at this time.”

The CRTC has not yet issued a determination on the review of its own decision.

In September, the Federal Court of Appeal dismissed the judicial appeal, which is giving rise to the proposed appeal to the Supreme Court. The judicial appeal route can only examine questions of law or jurisdiction. In this instance, much hinges on whether the CRTC’s ruling conformed with the government’s 2006 Policy Direction.

The Policy Direction requires “the Commission, when relying on regulation, should … specify the telecommunications policy objective that is advanced by those measures and demonstrate their compliance with this Order.”

The Federal Court of Appeal agreed that the CRTC has a “statutory reasons requirement”, an obligation to include sufficient detail in its decisions to enable a reader, and a reviewing court, … to fairly understand the reasoning of the Commission”.

Beyond the rates themselves, a key element of the applications seeking leave to appeal is the question of transparency. “How must administrative tribunals satisfy their duties of transparency and accountability in considering and implementing legally binding legislative and executive policy directives… and how should a reviewing court scrutinize decisions of tribunals that do not satisfy their mandatory duty to consider and implement legally binding legislative and executive policy directives, and explain the manner in which they have done so?”

A year ago, the Supreme Court released decisions on a number of matters related to judicial reviews of administrative tribunals, in what McCarthy’s called a “Super Bowl trilogy.” Those cases clarified a number of matters including a requirement for the decisions of administrative tribunals to be held to a standard of correctness, not simply reasonableness.

A heading in one of the applications describes the current appeal, seeking a standard of transparency, as completing the work of the Court in those 2019 cases.

In my opening remarks at The 2018 Canadian Telecom Summit, I said “In my view, Canadian consumers would be better off if the Policy Direction is a guiding principle in decision making, not just a boilerplate afterthought in decision writing.”

As one of the sets of leave documents states “The unorthodox approach taken by the Federal Court of Appeal in its judgment upholding the Decision gives rise to pressing issues of national and public importance that go to the very heart of the modern Canadian administrative state.”

The issues raised by the proposed appeal are profoundly important. They must not be left unanswered. The stakes are too high, both for the future of the modern administrative state, and for the future of the internet in Canada.

There is no specific timetable for the Supreme Court to Act. It is quite possible, indeed quite likely, the CRTC will issue the decision on its own review prior to the Court even making a determination on whether this case raises “questions of public importance.”

In any case, it seems certain we will see less of a boilerplate affirmation of Policy Direction compliance appended to the end of CRTC Decisions.

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