Last week, I wrote about the MTS Allstream complaint, seeking an opportunity to cross examine to cross examine the author of an expert report that was commissioned by the CRTC as part of its essential services proceeding.
MTS Allstream had cited a precedent in Decision 2002-34 where the CRTC had struck a piece of evidence from the record because parties were not afforded an opportunity to test the accuracy of the report.
Yesterday, the CRTC issued its determination on the complaint.
In Decision 2002-34, the Commission considered whether to admit a new expert report not already on the record submitted by one of the parties to the proceeding. The Commission decided to strike portions of the report from the record because the disputed evidence had been submitted as part of final argument and thus too late in the proceeding for parties to test.
The CRTC continues:
It is evident that the circumstances that gave rise to that conclusion are not analogous to those in the present proceeding. In the present context, the report in question has not been supplied by a party to the proceeding, nor is it the evidence of any party to the proceeding. Moreover, in the interest of transparency, the report has been made available to all parties prior to the hearing so that they can make use of it in the hearing and in argument. In this manner, the Commission considers that the parties’ procedural rights have been assured.
The concluding sentence allows the CRTC discretion to make its own determination about the Osborne Report after various parties make their own use or abuse of the findings:
The Commission will give Mr. Osborne’s report the weight that it considers appropriate once the record is closed.
The Canadian Association of VoIP Providers has issued a bulletin expressing some alarm at one of the findings of the report, that the CRTC should phase out mandatory access to non-essential facilities. However, CAVP does not appear to be registered to participate directly in the proceeding.
Since the report appears to provide a competition law perspective on the proceeding, we can expect to see parties look for comparisons to the evidence of the Competition Bureau, perhaps even cross-examining the Bureau’s witnesses on the content of the Osborne Report as a surrogate for directly testing the report itself.
The oral hearings get started next Tuesday morning.