Federal Court of Appeal Upholds CRTC\'s Telecommunications Jurisdiction

On September 4, 2003, the Supreme Court of Canada held that it would not hear an appeal from the Federal Court of Appeal’s decision in Federation of Canadian Municipalties et al. v. AT&T Canada Corp. et al.

In its decision, the Court of Appeal upheld the jurisdiction of the Canadian Radio-television and Telecommunications Commission (CRTC) to review the terms and conditions imposed on telecommunications carriers and cable companies by municipalities for access to municipal property.

The CRTC proceeding involved a dispute between the city of Vancouver and Ledcor Industries Ltd. over the terms and conditions of access to Vancouver roadways for the purpose of installing fibre optic lines. The CRTC held that it had jurisdiction to resolve the dispute under ss. 42-44 of the Telecommunications Act. It held that Ledcor was entitled to access subject to several conditions including the payment of a sum for the recovery of Vancouver’s costs. Importantly, the CRTC did not require Ledcor to pay an amount representing rent or land charges for the underground space that Ledcor would occupy.

Five appeals were commenced by several municipalities, as well as the Federation of Canadian Municipalities against the CRTC’s decision. The respondents included Canada’s largest telecommunications carriers, as well as the Canadian Cable Television Association.

Justice Gilles Létourneau, with Justice Marc Nadon agreeing, wrote the majority decision of the Court of Appeal. He held that the constitutional validity of ss. 42-44 was not in issue and that the CRTC had acted within its jurisdiction in relation to each of the terms and conditions in issue, including its decision not to require the payment of land charges.

Justice Pelletier dissented in part. In his view, the constitutional validity of ss. 42-44 had been put into issue by the parties. He concluded that the provisions were valid legislation necessarily incidental to federal jurisdiction over telecommunications. On the issue of Vancouver’s entitlement to the payment of land charges, the judge held that the CRTC’s reasons did not demonstrate that they had, in fact, decided the issue. He would have remitted the matter back to the CRTC for a clear decision on this point.

The respondents were: AT&T Canada, TELUS Communications Inc., the Canadian Cable Television Association, and Call-Net Communications Inc., represented by Tom Heintzman, Q.C., and Sue Gratton of McCarthy Tétrault LLP; Bell Canada, Ledcor Industries, MTS Communications Inc., WFI Urbanlink Ltd. and Aliant Telecom, represented by Brian Crane and Ron Lunau of Gowling Lafleur Henderson LLP; GT Group Telecom and Shaw Communications Inc., represented by Neil Finkelstein and Charlotte Kanya-Forstner of Blake, Cassels & Graydon LLP; and the Attorney General of Canada, represented by Peter Southey of the Department of Justice.

The appellants were: the Federation of Canadian Municipalities, represented by John Nelligan, Q.C., and Chris Tacit of Nelligan O’Brien Payne LLP in Ottawa; the City of Vancouver, represented in-house by Patsy Scheer; the City of Calgary, represented in-house by Brand Inlow, Q.C.; Halifax Regional Municipality, represented in-house by Mary Donovan; and the City of Ottawa and the City of Toronto, represented by Andrew Roman, assisted by Michelle Wong, both of Miller Thomson LLP.
The Attorney General of British Columbia intervened on behalf of the appellants, and was represented in-house by Jeffrey Loenen.