Date: 20040623
Citation: 2004 FCA 243
CORAM: LINDEN J.A.
ROTHSTEIN J.A.
BETWEEN:
CANADIAN INSTITUTE OF PUBLIC AND PRIVATE REAL ESTATE COMPANIES
and BUILDING OWNERS AND MANAGERS ASSOCIATION - CANADA
Appellants
and
BELL CANADA, ALIANT TELECOM INC., MTS COMMUNICATIONS INC., SASKATCHEWAN TELECOMMUNICATIONS (SASKTEL), TELUS COMMUNICATIONS INC., TELUS COMMUNICATIONS (QUÉBEC) INC.,
ALLSTREAM CORPORATION (formerly AT & T CANADA TELECOM SERVICES COMPANY), CALL-NET ENTERPRISES INC., LONDONCONNECT INC. (formerly GT GROUP TELECOM SERVICES CORP.), ACTION RÉSEAU CONSOMMATEUR,
CONSUMERS' ASSOCIATION OF CANADA, FÉDERATION DES ASSOCIATIONS COOPÉRATIVES D'ÉCONOMIE FAMILIALE DU QUÉBEC, NATIONAL ANTI-POVERTY ORGANIZATION, PUBLIC INTEREST ADVOCACY CENTRE and THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION
Respondents
VIDEOTRON TELECOM LTÉE
Intervener
Heard at Toronto, Ontario on June 21st, 2004.
Judgment delivered from the Bench at Toronto, Ontario on June 21st, 2004.
REASONS FOR JUDGMENT BY: SEXTON J.A.
Date: 20040623
Docket: A-525-03
Citation: 2004 FCA 243
CORAM: LINDEN J.A.
BETWEEN:
CANADIAN INSTITUTE OF PUBLIC AND PRIVATE REAL ESTATE COMPANIES
and BUILDING OWNERS AND MANAGERS ASSOCIATION - CANADA
Appellants
and
BELL CANADA, ALIANT TELECOM INC., MTS COMMUNICATIONS INC., SASKATCHEWAN TELECOMMUNICATIONS (SASKTEL), TELUS COMMUNICATIONS INC., TELUS COMMUNICATIONS (QUÉBEC) INC.,
ALLSTREAM CORPORATION (formerly AT & T CANADA TELECOM SERVICES COMPANY), CALL-NET ENTERPRISES INC., LONDONCONNECT INC. (formerly GT GROUP TELECOM SERVICES CORP.), ACTION RÉSEAU CONSOMMATEUR,
CONSUMERS' ASSOCIATION OF CANADA, FÉDERATION DES ASSOCIATIONS COOPÉRATIVES D'ÉCONOMIE FAMILIALE DU QUÉBEC, NATIONAL ANTI-POVERTY ORGANIZATION, PUBLIC INTEREST ADVOCACY CENTRE and THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION
Respondents
VIDEOTRON TELECOM LTÉE
Intervener
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario, on June 21st, 2004)
[1] In a decision entitled Telecom Decision CRTC 2003-45, the Canadian Radio-Televison and Telecommunications Commission (the "CRTC") imposed a condition on all local exchange carriers ("LECs") when they are providing local telephone services to customers in multi-dwelling units ("MDUs"), including residential and commercial buildings. The essence of this condition is that when negotiating access arrangements with the private owner of a MDU, a LEC must ensure that all other LECs wishing to access a particular MDU in order to provide telecommunications services are able to do so on a timely basis, either by using the existing facilities in the building or installing their own facilities, at their choice, under reasonable terms and conditions. We are told there was an adequate factual base for this Order and it is not challenged. In its decision, the CRTC expressly declined to impose any orders or conditions on the private owners of MDUs. The CRTC did, however, in its reasons set out guidelines to assist LEC's and MDU's in their negotiation of access arrangements. It indicated that if access arrangements between LECs and the owners of MDUs could not be concluded on a timely and reasonable basis, it had the jurisdiction to make orders affecting MDU's and, depending on the particular circumstances, it would be prepared to exercise this jurisdiction.
[2] In particular the CRTC said
143. The Commission expects building owners to cooperate with LEC's to enable them to access end-users in their MDUs in satisfaction of the MDU access condition. In section E below, the Commission sets out guidelines that, in its view, should assist parties in their negotiation of access arrangements on the basis of just and expedient conditions. These guidelines take into account the responsibilities of building owners to ensure the safety, security, appearance and condition of their properties and the safety and convenience of tenants and other persons.
144. In cases where negotiations on access cannot be concluded on a timely basis and where, following a process under Part VII of the CRTC Telecommunications Rules of Procedure, the Commission determines that access to an MDU has not been, or is not likely to be, provided on a reasonable basis, the Commission will take such further action as is appropriate, depending on the circumstances of each case, to ensure that all LECs are able to provide telecommunications services in an MDU, in accordance with the MDU access condition. In particular, the Commission will be prepared to issue an Order under section 42 of the Act, subject to such conditions as to compensation or otherwise as the Commission determines to be just and expedient.
146. Section 42 of the Act empowers the Commission to issue an order requiring or permitting any or all of a very broad range of actions, subject to such time-frames and conditions and such supervision as the Commission determines to be just and expedient. The Commission considers that its powers under section 42 allow it to address situations where a LEC is prevented by another person from providing telecommunications services in an MDU, in accordance with the MDU access condition. For example, depending on the circumstances of the case, the Commission could permit a LEC to construct, install, operate or use telecommunications facilities in an MDU, or require a building owner to provide telecommunications facilities to a LEC.
[3] The appellants are challenging the comments made by the CRTC that, depending on the particular circumstances, it would in the future be prepared to make orders requiring building owners to provide LECs with access to MDUs on certain terms and conditions for the purposes of providing telecommunications services. According to the appellants, the CRTC exceeded its jurisdiction by making these statements because it has no authority under the Telecommunications Act, S.C. 1993, c. 38 (the "Act") to regulate with respect to private property or to issue guidelines which affect MDUs. The respondents, other than Vidéotron Télécom Ltée, argue that the appeal should be dismissed on two grounds. First, that this Court does not have the jurisdiction to hear appeals from mere statements by the CRTC as to its potential jurisdiction in future cases, which are not binding. Second, even if the Court does have the jurisdiction to hear the appeal, it should decline to exercise this jurisdiction because the appeal is premature.
[4] Counsel for the CRTC stated that the tribunal did not consider that it had made any decision with respect to MDUs. Rather it had simply issued guidelines which were not binding. He further stated that until there was specific fact situation adjudicated upon, there would be no decision.
[5] We agree with the respondents on both grounds. Subsection 64(1) of the Act provides a right of appeal from a "decision" of the CRTC on questions of law or jurisdiction with the leave of this Court. The Order of this Court granting leave to appeal was made without prejudice to the respondents' right to argue that this Court does not have the jurisdiction to hear the appeal and that the appeal was premature. In our opinion, this Court does not have the jurisdiction to hear this appeal because the statements by the CRTC regarding its jurisdiction in future cases do not constitute a "decision" within the meaning of subsection 64(1) of the Act. The CRTC has not imposed any binding conditions or orders affecting the legal rights of private owners of MDUs. See Rothman's Benson & Hedges Inc. v. Minister of Revenue (1998), 148 F.T.R. 3 per Richard J.. It has simply stated, that, depending on the circumstances, it would be prepared to make such an order in the future. It did not articulate in which circumstances an order would be appropriate nor the terms that would be included in a particular order.
[6] There are at least two other answers to the arguments of the Appellant. Firstly, it might be possible for the CRTC to make an Order affecting the rights of an MDU without going beyond its jurisdictional powers. Secondly, it will be open to an MDU to attack a specific order imposed upon it which goes beyond the jurisdiction of the CRTC.
[7] The comments by the CRTC regarding its jurisdiction are merely guidelines. In Re Attorney-General of Canada and Cylien (1973), 43 D.L.R. (3d) 590 at 599 (FCA), Jackett C.J. interpreted the meaning of "decision" in section 28 of the Federal Court Act, 1970-71-72 (Can.), c. 1. He stated:
There is a clear difference between a "decision" by the Board of something that it has "jurisdiction or powers" to decide and a decision by it as to the view as to the nature of its own powers upon which it is going to act. Once the Board decides something that it has "jurisdiction or powers" to decide in a particular case, that decision has legal effect and the Board's powers with regard to that case are spent. When, however, the Board takes a position with regard to the nature of its powers upon which it intends to act, that "decision" has no legal effect. In such a case, nothing has been decided as a matter of law. The Board itself, whether differently constituted or not, in the very case in which the position was taken, can change its view before it deals with the case and, in fact, proceed on the basis of the changed view. [emphasis added]
This statement is equally applicable to this case. While the CRTC has made some comments regarding its jurisdiction in future cases, it has not actually purported to exercise any jurisdiction with respect to private property owners. Accordingly, these comments are of no legal effect and do not constitute a decision.
[8] The Act makes a clear distinction between guidelines and decisions and provides that appeals may only be made from decisions. Section 58 of the Act expressly provides that guidelines are not binding:
The Commission may from time to time issue guidelines and statements with respect to any matter within its jurisdiction under this Act or any special Act, but the guidelines and statements are not binding on the Commission.
In contrast, subsection 52(1) of the Act expressly provides that certain decisions are binding and conclusive:
The Commission may, in exercising its powers and performing its duties under this Act or any special Act, determine any question of law or of fact, and its determination on a question of fact is binding and conclusive. [emphasis added]
In this case, the CRTC has not finally determined any questions with respect to the rights and obligations of building owners. The following statement by Létourneau J.A. in Federation of Canadian Municipalities v. AT & T Canada Corp., [2003] 3 F.C. 379 at para. 21 is equally applicable to this case:
It is true that, in the context of settling the dispute before it, the CRTC elaborated a number of principles with a view to assisting carriers and municipalities in their future negotiations of terms and conditions of access. These principles are therefore not binding on anyone and the Commission expressly refrained from adopting "any particular model or agreement to serve as a starting point for discussions between municipalities and carriers": see the end of paragraph 44 of the decision. It is possible that these principles, although well intended, may in effect turn out to be less helpful and more problematic than anticipated. However, it is not open to us in these appeals, nor would it be advisable to do so, to review or sanction the principles set forth by the CRTC. [emphasis added]
[9] Even if the comments and guidelines of the CRTC were legally binding and this Court did
have the jurisdiction to hear this appeal, in our view, it would be inappropriate to do so because the appeal is premature. This Court should not attempt to interpret and define the scope of the CRTC's jurisdiction under the Act in the abstract and in the absence of any particular factual context. We find the following passage from the decision of the Privy Council in Ontario (A.G.) v. Hamilton Street Railway, [1903] A.C. 524, 7 C.C.C. 326 at 331-332 (P.C.) helpful in this respect:
With regard to the remaining questions, which it has been suggested should be reserved for further argument, their Lordships are of opinion that it would be inexpedient and contrary to the established practice of this Board to attempt to give any judicial opinion upon those questions. They are questions proper to be considered in concrete cases only; and opinions expressed upon the operation of the sections referred to, and the extent to which they are applicable, would be worthless for many reasons. They would be worthless as being speculative opinions on hypothetical questions. It would be contrary to principle, inconvenient, and inexpedient that opinions should be given upon such questions at all. When they arise, they must arise in concrete cases, involving private rights; and it would be extremely unwise for any judicial tribunal to attempt beforehand to exhaust all possible cases and facts which might occur to qualify, cut down and override the operation of particular words when the concrete case is not before it.
[10] This Court has held to the same effect in Federation of Canadian Manipulate v. Allstream
[2004] F.C.J. No. 42 Evans J.A. said:
Rather than attempting to answer abstract questions about the existence and scope of the CRTC's power with respect to existing and valid contracts, the Court should wait until it has before it a concrete case and a reasoned decision by the CRTC explaining the legal basis of its decision and the relevant regulatory context.
[11] Appellant's counsel argued that the CRTC had concluded that it had "the power to regulate
private property owners, and to authorize carriers, without the consent of the owner of the property or its expropriation, to use and occupy their property for an indefinite time period, under such terms and conditions as the Commission may chose to impose." While we doubt that the Commissions' reasons can be so interpreted, we should make it clear that the Court cannot be taken to have concluded that the Commission has such a power.
[12] Accordingly, the appeal should be dismissed with costs.
"J. E. Sexton"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-525-03
STYLE OF CAUSE:
CANADIAN INSTITUTE OF PUBLIC AND PRIVATE REAL ESTATE COMPANIES and BUILDING OWNERS AND MANAGERS ASSOCIATION - CANADA
Appellants
and
BELL CANADA, ALIANT TELECOM INC., MTS COMMUNICATIONS INC., SASKATCHEWAN TELECOMMUNICATIONS (SASKTEL), TELUS COMMUNICATIONS INC., TELUS COMMUNICATIONS (QUÉBEC) INC.,
ALLSTREAM CORPORATION (formerly AT & T CANADA TELECOM SERVICES COMPANY), CALL-NET ENTERPRISES INC., LONDONCONNECT INC. (formerly GT GROUP TELECOM SERVICES CORP.), ACTION RÉSEAU CONSOMMATEUR, CONSUMERS' ASSOCIATION OF CANADA, FÉDERATION DES ASSOCIATIONS COOPÉRATIVES D'ÉCONOMIE FAMILIALE DU QUÉBEC, NATIONAL ANTI-POVERTY ORGANIZATION, PUBLIC INTEREST ADVOCACY CENTRE and THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION
Respondents
and
VIDEOTRON TELECOM LTÉE
Intervener
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 21, 2004
REASONS FOR JUDGMENT
OF THE COURT: (LINDEN, ROTHSTEIN, SEXTON JJ.A.)
DELIVERED FROM THE
BENCH BY: SEXTON J.A.
APPEARANCES:
Andrew J. Roman FOR THE APPELLANTS
Erin Tully
James B. Laskin FOR THE RESPONDENT
James Wilson Canadian Radio-television and Telecommunications Commission
John E. Lowe FOR THE RESPONDENT
TELUS Communications Inc., and TELUS Communications (Québec) Inc.
Brian A. Crane FOR THE RESPONDENTS
Ronald D. Lunau Bell Canada, Aliant Telecom Inc. and MTS Communications Inc.
Alan Mark FOR THE RESPONDENT
Videotron Telecom Ltée
SOLICITORS OF RECORD:
Miller Thomson LLP FOR THE APPELLANTS
Barrister and Solicitors
Toronto, Ontario
Torys LLP FOR THE RESPONDENT
Barristers & Solicitors Canadian Radio-television and Telecommunications
Toronto, Ontario Commission
Bennett Jones LLP FOR THE RESPONDENT
Barristers and Solicitors TELUS Communications Inc. and TELUS (Québec) Inc.
Calgary, Alberta
Gowling, Lafleur, Henderson LLP FOR THE RESPONDENT
Barristers and Solicitors Bell Canada, Aliant Telecom Inc. MTS Communications
Ottawa, Ontario Inc.
Ogilvy Renault FOR THE INTERVENER
Barristers and Solicitors Videotron Telecom Ltée
Toronto, Ontario