A federal case?

Is telecommunications exclusively under federal jurisdiction in Canada?

We used to think so, at least since the Supreme Court of Canada ruled on the AGT/CRTC case in 1989 and the Guèvremont/Quebec case in 1994. But, recent cases suggest that federal authority may merit “new reflection”.

My friend Michael Ryan has an article in the November issue of Canadian Bar Review that suggests that the division of powers may not be so clear in the case of non-facilities-based telecommunications services providers – specifically those entities that are not physically involved in transport across provincial boundaries. In 2009, the Supreme Court ruled on Consolidated Fastfrate versus Western Canada Council of Teamsters.

Referring to Fastfrate’s role, [Rothstein J] said that its “presence at both the originating and terminating ends may mean that it can provide a comprehensive service to its customers, but this does not change the fact that it is still only a shipper using an interprovincial railway or trucking company.” [emphasis in original]

The article reviews various cases in depth, and specifically identifies provincial consumer protection legislation as an area where questions of authority may arise.

As a consequence of the recent decisions of the Supreme Court of Canada, the bounds of federal authority over telecommunications undertakings are less certain than they have been for many years. It is left to future decisions to determine more precisely where the new boundaries lie.

Given that my legal training used to consist of tele-training for the California bar through episodes of LA Law, my interest in the article is somewhat voyeuristic. I’m sure some members of the Canadian bar will be looking at opportunities and challenges inspired by this article.