The recent Alberta Court of Appeal decision in MTS Allstream Inc. v. TELUS
Communications Company affirmed the exclusive jurisdiction
of the Canadian Radio-television and Telecommunications Commission
(CRTC) to regulate telecommunications services in Canada, including
setting the rates and tariffs for such services. Efforts to
litigate disputes over such matters in Canadian courts have
routinely been referred back to the CRTC in recognition of the
CRTC's broad policy mandate and specialized expertise.
In MTS v. TELUS, MTS Allstream applied to
Alberta's superior court, the Court of Queen's Bench, for a
declaration that the Alberta Limitations Act does not
apply to refunds that the respondent, TELUS, was required to pay to
MTS pursuant to CRTC Decision 2007-10. That decision had resolved a
dispute about the rates for one particular element (BSEF) of a
service (CDN) provided by telecommunications carriers known as
incumbent local exchange carriers (ILECs) to their competitors.
McCarthy Tétrault, as counsel for TELUS, sought an order
staying or dismissing MTS's application on the basis that the
subject-matter of the application fell within the exclusive
jurisdiction of the CRTC. Alternatively, TELUS argued, if there was
concurrent jurisdiction, the Alberta Courts should defer to the
specialized expertise of the CRTC. The Chambers judge characterized
the dispute as one involving the interpretation and application of
the Alberta Limitations Act to a claim for payment of a
debt, over which the Alberta courts and the CRTC had concurrent
jurisdiction. The Chambers judge declined to defer to the CRTC.
TELUS appealed this decision to the Court of Appeal.
In determining whether an administrative tribunal has exclusive
jurisdiction over a dispute, the courts are required first to
review the tribunal's governing legislation to determine the
matters over which the legislation intended the tribunal to have
jurisdiction. Next, the courts must determine the essential nature
of the parties' dispute and decide whether it falls within the
tribunal's exclusive jurisdiction.
Although the MTS application was framed as a request for
interpretation of the Alberta Limitations Act, TELUS
argued that MTS's application, in substance, asked the Alberta
court to interpret Decision 2007-10. In this decision, the CRTC had
found that the ILECs were incorrectly billing competitors for the
BSEF service, and directed the ILECs to refund competitors for
those charges "back to the date of the error, subject to the
applicable limitations periods provided by law." This decision
formed part of a series of decisions by the CRTC that expanded the
range of services to be provided by ILECs to competitors and set
the rates, terms and conditions for those services.
MTS argued that the words "subject to the applicable
limitations periods provided by law" were a reference to the
Alberta Limitations Act. TELUS argued that it was not at
all clear what limitations period the CRTC was referring to.
Agreeing with TELUS, the Court of Appeal held that resolution of
the dispute involved the interpretation and implementation of both
the CRTC-approved Terms of Service and Decision 2007-10. To the
extent that such a task involved the consideration of
telecommunications policy, it would fall within the exclusive
jurisdiction of the CRTC. Further, even if it had determined that
there was concurrent jurisdiction in this case, the Court of Appeal
would still have deferred to the CRTC in light of the comprehensive
dispute resolution scheme provided by the Telecommunications
Act and the fact that resolution of the dispute would require
the court to rule on the CRTC's intentions.
MTS Allstream's application to the Supreme Court of Canada
for leave to appeal the Court of Appeal's decision was
dismissed with costs. The CRTC subsequently clarified the meaning
of "subject to the applicable limitations period provided by
law" in CRTC Decision 2010-462.
McCarthy Tétrault Notes
This decision is notable as there are few reported cases dealing
with exclusive jurisdiction of the CRTC. Further, MTS v.
TELUS was the first case in which the general principles
of exclusive jurisdiction set out in existing case law from the
Federal courts and Supreme Court of Canada were applied to the
interpretation of a CRTC decision.
This decision also provides further guidance regarding what
courts will characterize as private law matters (over which courts
have concurrent jurisdiction), and matters that fall within the
exclusive jurisdiction of the CRTC. Although the facts in this
instance were unique, the Court of Appeal's reasoning
highlights the broad jurisdiction of the CRTC and the consequent
difficulties faced by a party seeking adjudication of
telecommunications disputes in provincial courts.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).