The Supreme Court of Canada has refused to hear an appeal
relating to the scope of the authority of the federal cabinet to
overturn a CRTC decision concerning whether a telecommunications
carrier has met Canadian ownership obligations.
In doing so, the Court has essentially affirmed the eligibility
of wireless new entrant Wind Mobile to operate, as well as
implicitly endorsed the authority of the federal cabinet to take
into account broad policy questions in determining whether to
overturn CRTC decisions.
It also brings to an end a lengthy string of contradictory
decisions, reviews and appeals, which began when
the CRTC found in 2009 that that, Globalive
Wireless Management Corp. (Globalive), which operates in Canada as
Wind Moible, was effectively controlled by a non-Canadian (Orascom
Telecom Holding (Canada) Limited -- an Egyptian-controlled company)
and was therefore ineligible to operate in Canada (Orascom Telecom
Holding (Canada) Limited was subsequently acquired by Russian
wireless carrier Vimpelcom Ltd. in April of 2011). That CRTC
decision was at odds with the government's issuance to
Globalive of a spectrum licence, since holders of such licences
must meet the same Canadian ownership requirements as
The Telecommunications Act
provides that telecommunications common carriers must meet Canadian
ownership requirements to be eligible to operate in Canada. In
order to be so eligible, at least 80% of the members of a
corporation's board must be Canadian, at least 80% of its
voting shares must be held by Canadians and the corporation may not
be otherwise controlled by non-Canadians. Each of the CRTC's
decision and the subsequent variances and appeals focused on
Globalive's compliance with the latter criterion.
Next, the federal cabinet disagreed with the CRTC and
varied the regulator's decision, finding that the record did
not support the conclusion that the company was controlled by a
non-Canadian, and suggesting that the Canadian ownership and
control requirements "should be interpreted in a way that
ensures that access to foreign capital, technology and experience
The federal cabinet (formally, the Governor in Council) is
empowered by s. 12 of the Telecommunications Act to vary,
rescind or refer back for reconsideration any CRTC decisions under
that Act, although the section provides no guidance on the factors
to be taken into account by the cabinet in making such a
Then, Public Mobile Inc., another new wireless entrant, brought
an application for judicial review of the cabinet decision.
In the case of
Public Mobile v. Attorney General of Canada et
al., the Federal Court, Trial Division granted
the application and quashed the cabinet decision.
The Supreme Court's refusal to hear a further appeal means
last year's Federal Court of Appeal decision will continue to
stand, and that all avenues for appeal or variance have been
Ironically, on the same day that the Supreme Court issued its
denial of leave to appeal, Parliament introduced proposed amendments to the
Telecommunications Act, which would
exempt smaller telecommunications carriers like Wind Mobile from
the obligation to comply with Canadian ownership requirements,
rendering moot the original impetus for the cabinet variance and
judicial consideration of the last 3 years.
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