The CRTC issued a statement on losing a procedural motion at the Federal Court of Appeal in the case of the implementation timing for Wireless Code described in my posts from last summer – here and here.
It was a strange statement from the CRTC. Did losing a procedural motion merit a press release? Why would the CRTC try to appeal to the public, highlighting this ruling? As any law student, or viewer of court room drama on TV would know, a regulator or judge can’t show up at the appeal court to advocate in favour of its decision. The ruling needs to stand on its own merit.
Here is what the judge said in ruling against the CRTC:
A statutory appeal, or an application for judicial review is not an occasion for the tribunal to improve upon its reasons in light of the objections made to them by the litigants.
So the Federal Court of Appeal struck 60 paragraphs from the CRTC’s memorandum.
The case before the Court of Appeal is fundamentally about the extent of legal powers of the CRTC. The first question is whether limiting termination fees in older mobile contracts is a form of retroactive rate-making. In the past, the courts have already held that the CRTC does not have retroactive rate-making powers. Alternatively, are there other proscriptive powers that might allow the CRTC to override existing contracts?
This is the heart of the case being heard by the Federal Court of Appeal. It is an important test of the extent and limits of CRTC legal powers.