Federal Court of Appeal Overturns CRTC Decision

On July 13, 2001, the Federal Court of Appeal overturned a decision of the Canadian Radio-television and Telecommunications Commission in which the CRTC ruled that it had the jurisdiction to regulate terms of access to the hydro poles owned by Ontario’s electric power utilities. The dispute before the CRTC concerned the terms of access of cable television companies to the hydro poles of the power utilities, including the fee that power companies could charge for the attachment of cable television facilities to hydro poles, a question of interest across Canada. The CRTC decided that it had the constitutional and statutory jurisdiction to regulate terms of access to hydro poles by cable companies and set an attachment fee far lower than that sought by the power utilities.
In one of the few court decisions overturning a CRTC ruling, the Federal Court of Appeal found that the CRTC had incorrectly interpreted its own statute and that the CRTC did not have jurisdiction under the Telecommunications Act over terms of access to poles owned by power utilities. The court found further that the CRTC erred in relying on its broad policy objectives as a basis for exercising authority not expressly conferred upon it by statute.
The successful appellant power utilities were represented in the Court of Appeal by Goodmans LLP’s Alan Mark and Peter Ruby. The appellant’s position was supported by SaskPower, represented by Robert Richards, Q.C. of MacPherson Leslie & Tyerman and the Attorney General of New Brunswick’s Gabriel Bourgeois and Gaetan Mignault. The respondent cable television companies were represented by McCarthy Tétrault LLP’s Thomas G. Heintzman, Q.C., O.C., Susan L. Gratton and Sally P. Bryant (litigation). The respondents were supported by the Attorney General of Canada, represented by Peter Southey, and the CRTC, represented by William Howard and Carolyn Pinsky.