S.C.C. Upholds CRTC Court of Appeal Decision

On May 16, 2003, the Supreme Court of Canada upheld a decision of the Federal Court of Appeal overturning a 1999 decision of the Canadian Radio-television and Telecommunications Commission (CRTC), ending a six year legal battle between the power utility and cable television industries.

In Barrie Public Utilities v. Canadian Cable Television Association, the S.C.C. ruled that the CRTC erred in interpreting s. 43(5) of the Telecommunications Act as authorizing the CRTC to regulate access to power poles.

Across Canada, cable television companies attach to power poles a large portion of the wires and equipment that make up their networks. In 1996 the latest pole attachment agreement between a number of Ontario power utilities and the Ontario members of the Canadian Cable Television Association (CCTA) came to an end and the CCTA applied to the CRTC for access to the Ontario power utilities’ poles on regulated terms.

The CRTC granted the CCTA’s members access to the power utilities’ poles for a mandated fee, finding: (1) in light of the wording of the statute and Canadian telecommunications policy, the phrase “supporting structure of a transmission line” in s. 43(5) included power poles; and (2) the CRTC had the constitutional authority to regulate access to the power poles of otherwise provincially regulated utilities.
In a judgment written by Justice Charles Gonthier, Justice Michael Bastarache dissenting, the S.C.C. analyzed s. 43(5) using well-accepted tools of statutory interpretation: the grammatical and ordinary meaning of the words, and the context of this provision. The court found that this provision did not extend the CRTC’s authority to power poles. The constitutional question was not addressed by the majority.
The S.C.C. also addressed two issues that could have broader implications for CRTC decision-making: the standard of review by courts of the CRTC’s interpretation of its own statutes, in this case a correctness standard, and the proper use of statutory policy objectives; the court found that those objectives had been used improperly by the CRTC.
The power utilities were represented at the S.C.C., by Alan Mark of Ogilvy Renault and Peter Ruby of Goodmans LLP. The CCTA was represented by Neil Finkelstein and Catherine Beagan Flood of Blake, Cassels & Graydon LLP.
The intervenors that participated in the appeal were: Brian Saunders and Peter Southey for the Attorney General of Canada; Michel Hélie for the Attorney General of Ontario; Alain Gingras for the Attorney General of Quebec; Gaétan Migneault for the Attorney General of New Brunswick; Cynthia Devine for the Attorney General of Manitoba; Nancy Brown for the Attorney General of B.C.; Robert Richards, Q.C., for the Attorney General of Saskatchewan; and Roderick Wiltshire for the Attorney General of Alberta.

Written intervention submissions were provided by Robert Richards, Q.C., of MacPherson Leslie & Tyerman LLP in Regina for the Saskatchewan Power Corporation; Christian Tacit of Nelligan O’Brien Payne LLP in Ottawa for the Federation of Canadian Municipalities; Seumas Woods and Charlotte Kanya-Forstner of Blake, Cassels & Graydon for GT Group Telecom Services Corp.; and Thomas Heintzman, O.C., Q.C., Susan Gratton and Genevieve Currie of McCarthy Tétrault LLP for Aliant Inc., AT&T Canada, Bell Canada, Bell West Inc., MTS Communications Inc. and TELUS Communications Inc.