SCC Dismisses Public Mobile's Application for Leave to Appeal

The Supreme Court of Canada (SCC) declined to hear a challenge to a Government of Canada decision that Globalive Wireless is entitled to offer wireless services in Canada.

Globalive participated in Canada's wireless spectrum auction and was issued spectrum licences by the Minister of Industry in 2008. Then, in October 2009 the Canadian Radio-television and Telecommunications Commission (CRTC) held that because of the debt advanced to Globalive by Egypt's Orascom Telecom Holding SAE, Globalive did not meet the foreign ownership and control rules. The CRTC held that Globalive was therefore ineligible to operate as a telecommunication carrier. On its own motion, the Governor in Council undertook a review of the decision of the CRTC. In December 2009, the federal government overruled the CRTC, concluding that Globalive did meet the Canadian ownership and control test. In February 2011, the Federal Court set aside the Canadian government's decision, holding that the government had acted improperly in considering the encouragement of access to foreign capital in the course of its decision. In June 2011, the Federal Court of Appeal overturned that decision. The Federal Court of Appeal held that the government had made no error of law or jurisdiction in finding that Globalive did meet the Canadian ownership and control test. The Federal Court of Appeal further concluded that, in any event, the government would have been entitled to have regard to policy considerations in deciding to vary the CRTC decision.

McCarthy Tétrault LLP represented Globalive in the CRTC proceedings, Federal Court litigation and SCC leave application, working with Globalive's Chief Legal Officer Andrea Wood. McCarthy Tétrault's team was led by Thomas Heintzman and included Malcolm Mercer, Hank Intven, Grant Buchanan, Anna Matas, Bram Abramson and Eric Gertner.

Torys LLP represented Public Mobile Inc., working with Bob Boron, Public Mobile's Vice President, Legal & Regulatory Affairs, and John Pazzano, its Director of Legal Affairs. The Torys team was led by John Laskin and by Michael Ryan of Arnold & Porter LLP.

Baker & McKenzie LLP represented Telus Communications Company, with a team led by Kenneth Jull that included Natalie Haras and Stephen Schmidt, Chief Regulatory Legal Counsel, TELUS.

Sack Goldblatt Mitchell LLP represented Alliance of Canadian Cinema, Television and Radio Artists, Communication, Energy and Paperworkers of Canada, and Friends of Canadian Broadcasting, with a team led by Steven Shrybman.