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TELECOM DECISION
Ottawa, 7 February 1991
Telecom Decision CRTC 91-1
REQUEST BY TELECOMMUNICATIONS WORKERS' UNION FOR A STAY OF SIX CURRENT PROCEEDINGS
I INTRODUCTION
The following constitutes the Commission's decision with respect to the 2 November 1990 request by the Telecommunications Workers' Union (TWU) to stay six Commission proceedings pending a ruling by the Federal Court, Trial Division, on whether resellers are "companies" under the Railway Act and, hence, required to file tariffs of tolls for the approval of the Commission.
In its Statement of Claim, filed with the Federal Court, Trial Division, also on 2 November, TWU seeks various orders that, if granted, would in effect require the Commission to regulate resellers, as well as an interlocutory order staying the same six proceedings that are the subject of this decision.
On 20 November 1990, in response to a request by the Commission, TWU filed further submissions in support of its request that the Commission stay the six proceedings pending the outcome of TWU's litigation. By letter dated 21 November 1990, the Commission provided a copy of TWU's 2 November stay request and 20 November submissions to the eight parties whose applications led to the initiation of the proceedings in question, and invited each to comment on the request that its particular proceeding be stayed. TWU filed a reply to these comments on 3 December 1990.
II BACKGROUND
In Enhanced Services, Telecom Decision CRTC 84-18, 12 July 1984 (Decision 84-18), the Commission considered whether it had the necessary legal authority or duty to regulate the provision of enhanced services by parties other than the federally regulated telephone and telegraph companies. At pages 30 and 31, the Commission concluded that its jurisdiction under the Railway Act extends only to "those companies within federal jurisdiction that may be considered to be operating a telephone or telegraph system." Based on this interpretation, the Commission concluded that enhanced service providers who employ underlying basic telecommunications services of others in providing their own service offerings are not "companies" as defined in subsection 320(1) of the Railway Act.
Subsequently, in Interexchange Competition and Related Issues, Telecom Decision CRTC 85-19, 29 August 1985 (Decision 85-19), the Commission considered whether it had a legal duty to regulate resellers. At page 89, the Commission determined that the conclusionsreached in Decision 84-18 are equally applicable to resellers and that, accordingly, the regulation of resellers is not required. Therefore, in Decision 85-19, the Commission ruled that resellers are not "companies" under the Railway Act, the same legal issue that TWU has now brought before the Federal Court, Trial Division.
TWU was a participant in the extensive public proceeding that culminated in Decision 85-19. However, TWU did not appeal the decision.
On 17 April 1990, TWU wrote to the Commission stating that resellers are companies as defined in the Railway Act and, as such, must file tariffs of their tolls for Commission approval, and asking the Commission to advise whether it intended to require resellers to file tariffs. In the letter, TWU acknowledged that the Commission had decided in Decision 85-19 that resellers are not companies under the Railway Act. However, TWU went on to argue that the Commission's decision regarding resellers predated two important Court rulings, TWU v. CRTC and CNCP, [1989] 2 FC 280 (C.A.) and Alberta Government Telephones v. CRTC et al., [1989] 2 S.C.R. 225, and that the relevant Railway Act definitions, taken together with these rulings and earlier constitutional jurisprudence, establish a legal obligation for the Commission to ensure that resellers file tariffs for Commission approval.
The Commission considered TWU'ssubmissions and, by letter dated 21 June 1990, set out its determination with respect to TWU's complaint. In its letter, the Commission restated the conclusion it reached in Decision 85-19 that resellers are not Railway Act "companies" and indicated that it was unaware of any relevant change since the decision that would justify arriving at a different conclusion. Accordingly, the Commission again advised that it did not intend to require resellers to file tariffs for approval.
As noted, TWU filed its Statement of Claim on 2 November and referred therein to the Commission's determinations with respect to resellers in Decision 85-19 and in its letter of 21 June 1990.
III COMMISSION PROCEEDINGS SOUGHT TO BE STAYED
As noted, TWU's Statement of Claim also contained a request for an interlocutory order staying the same six Commission proceedings that are the subject of its request to the Commission and of this decision. Each of the six proceedings is discussed briefly below.
In Unitel Communications Inc. and B.C. Rail Telecommunications/Lightel Inc.- Applications to Provide Public Long Distance Voice Telephone Services and Related Resale and Sharing Issues: Scope and Procedures, CRTC Telecom Public Notice 1990-73, 3 August 1990, the Commission established a proceeding (the Interexchange Competition proceeding) to examine two applications to compete in theprovision of long distance voice services in the operating territories of certain federally regulated telephone companies, as well as a number of related issues set forth in the public notice. A central public hearing in this proceeding is scheduled to commence on 15 April 1991, to be preceded by a pre-hearing conference on 8 and 9 April and a series of 12 additional informal hearings to be held in locations across Canada between 25 February and 14 March. To date, evidence of the applicants and respondent telephone companies and carriers has been filed and a second round of interrogatories is in progress. There are 96 parties registered for this proceeding, including TWU.
The second proceeding, Bell Canada - Application to Review and Vary Telecom Decision CRTC 90-3, Resale and Sharing of Private Line Services, CRTC Telecom Public Notice 1990-37, 23 April 1990, was initiated by application of Bell Canada (Bell) on 27 March 1990, filed pursuant to section 66 of the National Telecommunications Powers and Procedures Act. Bell requested that the Commission review that part of Resale and Sharing of Private Line Services, Telecom Decision CRTC 90-3, 1 March 1990 (Decision 90-3), prohibiting facilities-based carriers from leasing their services to affiliated persons for resale purposes, and extend that prohibition to certain other persons related to the affiliate. In response to procedures established in the Commission's public notice, 26 parties, including TWU, registered for this proceeding, the record of which is now complete.
The third proceeding involves another Bell application, Bell Canada - Application to Require the Filing of Tariffs of Tolls by Rogers Cable T.V. Limited, Carrying on Business as Rogers Network Services, CRTC Telecom Public Notice 1990-67, 25 July 1990. Bell has asked the Commission for orders (1) requiring Rogers Network Services (RNS) to file tariffs of tolls for all of the telecommunications or telephone services that it provides or offers, and (2) directing RNS to cease providing any services interconnected to the public switched telephone network unless and until the interconnections are brought into compliance with the Railway Act. There were 17 parties, including TWU, registered for this proceeding, the record of which is also complete.
In Alternate Operator Services, CRTC Telecom Public Notice 1990-64, 16 July 1990, the Commission established procedures to address an application filed on 2 May 1990 by British Columbia Telephone Company Limited (B.C. Tel) for approval of revisions to its tariffs with respect to the provision of alternate operator services (AOS). B.C. Tel pointed out in its application that the liberalization of the resale and sharing rules as a result of Decision 90-3 permitted an opportunity for parties other than the telephone companies to enter the operator services market. In its application, B.C. Tel proposed several measures for protecting callers in Canada from certain negative business practices that had been experienced by the public in the United States in connection withthe provision of AOS. There are 30 parties, including TWU, registered for this proceeding, and the record is complete.
Teleglobe Canada Inc. (Teleglobe) initiated the fifth proceeding sought to be stayed by TWU, namely, Teleglobe Canada Inc. - Resale of Transborder Services, CRTC Telecom Public Notice 1990-79, 4 September 1990. In its 4 April 1990 application, Teleglobe requested that the Commission amend the general tariffs of Bell, B.C. Tel and Unitel Communications Inc. (Unitel) to state that resellers are prohibited from using transborder services leased from these companies to route voice traffic to and from overseas destinations via interconnection with the facilities of carriers in the United States. Following the exchange of pleadings, the Commission established procedures pursuant to which 36 parties registered, including TWU. The record of this proceeding is also complete.
The sixth and final Commission proceeding in question is Resale and Sharing of Cellular Services, CRTC Telecom Public Notice 1990-80, 6 September 1990, which was initiated by the Commission to consider, among other things, whether the resale and sharing of cellular services provided by the federally regulated cellular carriers is in the public interest and, if so, what restrictions, if any, would be appropriate for the Commission to impose. The Commission had earlier received three applications raising these and other issues from companies either already engaged incellular resale and being threatened with disconnection by the cellular carriers or else wishing to enter the cellular resale market. The record of this proceeding, in which 86 interested parties are registered, including TWU, is scheduled to be completed shortly.
IV POSITIONS OF PARTIES
A. TWU Request for a Commission Stay
In its 2 November letter to the Commission, TWU suggested that the six proceedings sought to be stayed are directly related to the Commission's approach to resale, and that it is obvious that the outcome of the litigation will significantly affect the Commission's consideration of the issues raised in all those proceedings. TWU suggested further that it would be appropriate for the Commission to suspend these proceedings until such time as the Court has rendered its decision, and asked the Commission to advise whether it would be willing to stay any or all of these proceedings, or its considerations therein, pending the decision of the Court.
On 20 November, in response to a request by the Commission, TWU made further submissions in support of its stay request. TWU suggested that, since each of the proceedings would have to be reconsidered by the Commission to some degree if the Federal Court were to grant TWU the orders it is seeking, the interests of all parties would be better served if the Commission stayed theproceedings at this point in time.
TWU also addressed the three criteria for granting a stay enumerated by the Supreme Court of Canada in Attorney General of Manitoba v. Metropolitan Stores (MTS) Ltd. et al., [1987] 1 S.C.R. 110. The Commission has in the past relied upon the criteria enunciated in the Metropolitan Stores case (see, for example, Telecom Letter Decision CRTC 89-18, 15 September 1989). Regarding the first criterion, whether there is a serious issue to be tried, TWU stated that it is relying upon the plain wording of the Railway Act and relevant judicial authorities. Turning to the second criterion, whether denial of a stay would cause the applicant irreparable harm not compensable in damages, TWU suggested that irreparable harm will be occasioned if a regulatory regime is established that is unsound in law. Finally, with respect to the third criterion, the balance of convenience test, TWU relied on the Federal Court of Appeal's ruling with respect to a previous TWU request for a stay in TWU v. CRTC and CNCP, (1988) 86 N.R. 324 (F.C.A.) for the proposition that the public interest, and hence the balance of convenience, favours maintaining the regulatory status quo pending the outcome of its litigation.
B. Other Parties
The Commission received submissions from each of the parties invited to comment, as well as from another party, Call-Net TelecommunicationsInc. (Call-Net), which commented as part of a joint submission with B.C. Rail/Lightel (BCRL). To one extent or another, all of the parties opposed TWU's request. Among the submissions advanced were the following.
Dial-Mobile Rent-a-Phone Inc. argued that a stay of the Commission's Cellular Resale proceeding would heighten the existing regulatory uncertainty surrounding this activity, would cause hardship to it and others, and would be contrary to the public interest. Corpfon Cellular (Corpfon) stated that a stay of that proceeding would seriously adversely affect it as a result of the prolonged uncertainty of not knowing conclusively whether the Commission considers cellular resale to be in the public interest. Corpfon also argued that the issue of whether to regulate resellers does not directly affect the Commission's jurisdiction to regulate the terms and conditions of resale of services offered by the cellular providers, and that, irrespective of the outcome of the TWU litigation, the Commission must still determine whether resale of cellular service is in the public interest. Cellular Rental noted that it has a significant interest in the cellular resale proceeding being resolved as soon as possible, and that this would also be in the best interest of the public.
Call-Net and BCRL pointed out that the Commission has consistently held, since at least 1985 (Decision 85-19), that resellers are not "companies" and are not required to file tariffs. They also pointed outthat TWU had participated in the proceeding that led to that decision, and had not appealed the Commission's decision to the courts. Call-Net and BCRL noted that they have made a substantial commitment and investment, Call-Net in implementing its business plans, and the two parties in preparing their application to compete in the long distance market. According to Call-Net and BCRL, TWU is well aware that the Interexchange Competition proceeding centres largely on the matter of public long distance voice telephone service competition, and only to a much lesser extent on resale and sharing. They argued that the suspension of the Interexchange Competition proceeding would cause the applicants and others incalculable damages. Call-Net argued that a stay of the proceedings in question would create considerable confusion and uncertainty and could result in substantial losses for its 3,500 customers in Ontario, Quebec and British Columbia, and for the customers of other companies.
Bell and B.C. Tel commented on TWU's request to stay four of the proceedings. B.C. Tel pointed out that the AOS proceeding that it initiated is distinctly complementary in nature to TWU's Federal Court action, and should be allowed to proceed, since it is an attempt to narrow the scope of Decision 90-3 by imposing restrictions on activities that may be engaged in by resellers wishing to provide AOS. B.C. Tel argued that the same logic applies to three of the other proceedings inquestion, i.e., those initiated by Bell and Teleglobe.
Bell noted that TWU's request to stay the proceeding regarding the company's application to review and vary Decision 90-3 is unusual, since it seeks to halt the examination of possible restrictions of that decision without attempting to stay the decision itself. Bell argued that it would be inappropriate to stay such a proceeding as long as the decision that gave rise to the proceeding remained in effect, since to do so would deprive parties of the potential to ameliorate certain possible adverse effects of the decision.
Bell also argued that it would be inappropriate to stay the AOS and Resale of Transborder Services proceedings, since these proceedings seek to restrict the activities of resellers that have commenced operation, or may do so, as a result of the Commission's resale rulings.
With respect to its application that Rogers Cable T.V. Limited, carrying on business as Rogers Network Services (RNS), be required to file tariffs, Bell submitted that TWU has not demonstrated why a stay is appropriate or necessary. Bell contended that the record of this proceeding, which is now complete, indicates that RNS may be very different factually from resellers and that, accordingly, the matter tobe decided in the RNS proceeding is very different from and is more focused than the matter to be decided in the TWU action. Bell also argued that TWU's irreparable harm and balance of convenience arguments favour proceeding expeditiously with the RNS proceeding, and not staying or delaying it. This is the case because RNS is currently in operation and Bell's application seeks to have the Commission regulate RNS under the Railway Act, the same result sought by TWU in relation to resellers.
Unitel argued that its 16 May 1990 application, which led to the Interexchange Competition proceeding, concerns an altogether different subject from resale, namely, the provision by it of competitive public long distance voice telephone service. Moreover, any future resale of Wide Area Telephone Service that Unitel may engage in is to be distinguished from the resale activity of entities not currently regulated by the Commission, since any resale by Unitel would always be in the context of the provision of a tariffed service. Unitel argued further that, while the Commission has determined that Unitel's long distance application will be heard together with other issues, including resale, those issues are distinct and severable, and that, if the Commission considers the grant of a stay to be appropriate, the stay should be confined only to those issues and not to Unitel's application. Unitel submitted that a stay of its application would be inappropriate since TWU's litigationdoes not address any issue that would affect the Commission's disposition of its application, and since a delay would result in great inconvenience and expense to Unitel and others.
Teleglobe submitted that the relief it requests in the Transborder Resale proceeding remains necessary and in the public interest, regardless of the outcome of TWU's litigation, and that the issue of whether resellers are regulated has no bearing on the matters raised by the Commission in the Public Notice associated with that proceeding.
Citing the Metropolitan Stores case, Teleglobe argued that TWU's request should be denied, since a stay should only be granted where it is supported on the balance of convenience, weighing the public interest and the interests of the parties to the litigation.
Teleglobe suggested that a denial of the stay would result in no harm to TWU or the public, whereas there is a need to resolve the public interest issues identified in the Teleglobe proceeding and a very reasonable likelihood of continued significant economic harm and market uncertainty to Teleglobe, resulting from continued diversion of Canada-overseas calling on non-Canadian facilities, if the proceeding were to be stayed.
C. TWU's Reply
In its reply of 3 December, TWUpointed out that none of the parties submitting comments to the Commission addressed the criterion of whether there is a serious question to be tried. TWU submitted that any uncertainty or confusion cited by the parties in the context of TWU's request for a stay is the result of the Commission's decision not to require resellers to file tariffs.
TWU repeated its suggestion that confusion to the parties would be immeasurably worsened if the Commission were required to revise or overturn its decisions should TWU obtain the orders it seeks from the Federal Court. TWU stated that the Commission is aware of the extent to which its deliberations in each of the six proceedings would be affected by a Court ruling that resellers must file tariffs. It suggested that the scope and degree of regulation is an essential ingredient to each of the six proceedings and forms the context within which the other issues must be judged.
With respect to the remaining criteria, TWU cited the following excerpt from TWU v. CRTC and CNCP (1988) 86 N.R. 324 at 328, which it submitted is equally applicable to the present situation:
As with irreparable harm, so with balance of convenience, the appellant does not rely on a subjective interest but rather the public interest. CNCP urges its interest in an uninhibited opportunity to meet prices charged by its unregulated competition. Again, it seems clear that the balance of convenience lies in maintaining the regulatory regime, which certainly hasbeen authorized by Parliament, rather than in permitting it to be dismantled by CRTC, which arguably may not have been authorized by Parliament, with the result that it would have to be reconstituted should the appellant succeed.
V CONCLUSIONS
The Commission has considered the arguments raised by TWU in support of its stay request, as well as its Statement of Claim pending before the Federal Court, Trial Division, and the comments of the interested parties. In arriving at its determination with respect to the stay request, the Commission has relied upon the three criteria enumerated by the Supreme Court of Canada in the Metropolitan Stores case.
With respect to the first criterion, that of irreparable harm not compensable in damages, TWU has argued that irreparable harm would be caused if the Commission were to establish a regulatory regime that is unsound in law. It has argued further that confusion and uncertainty would result from the Commission having to revise or overturn its decisions in the six proceedings if TWU succeeds before the Courts.
In the Commission's opinion, the mere allegation by TWU that a decision of the Commission may create a regulatory regime that isunsound in law is not, in and of itself, a sufficient basis upon which to conclude that a failure to stay the six proceedings would cause TWU irreparable harm. The Commission considers that the appropriate remedy for any party that is of the view that a decision taken by the Commission is unsound in law is to appeal that decision. It does not follow, however, that in every case the implementation of a Commission decision that is under appeal will result in irreparable harm to the appellant not compensable in damages. Were this the case, every party seeking to appeal a Commission decision would also, merely by virtue of having initiated the appeal, be able to satisfy the criterion of irreparable harm in support of a request to stay the implementation of the impugned decision.
The Commission considers that TWU has not clearly identified the regulatory regime to which its arguments concerning irreparable harm refer. TWU may be referring to the regulatory regime established by Decision 85-19 in accordance with which resellers are not required to file tariffs for Commission approval. If this is the case, the Commission notes that TWU has provided no indication as to why it would now suffer irreparable harm some five years after the regime was established. Moreover, in the Commission's opinion, TWU's argument on irreparable harm in the present case is even more difficult to sustain, since the decision that TWU apparently considers to have created an unsound legal regime is not even one of the six matters sought to be stayed.
Alternatively, it may be the case that TWU's position regarding the creation of a regime that is unsound in law refers to the regime that the Commission will in future establish when it issues decisions in one or more of the six proceedings sought to be stayed, rather than to the regime that the Commission established in Decision 85-19 when it ruled that resellers need not file tariffs. TWU has asserted that irreparable harm would be caused to the public interest if the Commission were required to revise or overturn its decisions on the six proceedings if TWU succeeds before the Court. The Commission notes, however, that TWU has provided no evidence in support of its assertion that the Commission would have to revise or overturn these decisions, nor has it advanced any submissions that the harm that it alleges would be caused is of a nature that could not be compensated in damages. On the basis of the record before it, taking into account the nature of the six proceedings, the Commission has not been persuaded that it would be necessary to revise or overturn any of the possible decisions that could be rendered following the six proceedings if the Court rules in TWU's favour that resellers are companies under the Railway Act and must file tariffs.
Based upon its submissions, it may also be TWU's position that any new regulatory regime arising out of the Commission's ultimate decisions in the six proceedings would, in and of itself, cause irreparable harm not compensable in damages. If this is the case, the Commission would point out that as a participant in each of the six proceedings, TWU is at liberty to appeal and to seek to stay any of the related decisions once they are rendered.
In light of the foregoing, the Commission is not persuaded that TWU would sustain irreparable harm not compensable in damages were the Commission to deny its request for a stay of the six proceedings in question.
With respect to the balance of convenience criterion, TWU must persuade the Commission that it would sustain greater harm if the stay were to be denied than would the parties adverse in interest if the stay were to be granted. In weighing the arguments submitted with respect to this criterion, the Commission has attempted to assess the private interests of TWU and the other parties, as well as the public interest.
TWU has argued that the public interest, and hence the balance of convenience, favours maintaining the current regulatory regime until such time as the issue of whether resellers are subject to Commission regulation is decided by the Federal Court. TWU suggested that the interests of all would best be served, on balance, if a stay were to be granted, since the outcomes of the six proceedings would all be affected to some extent if TWU obtains the relief it seeks from the Court, and any decisions taken by the Commission following these proceedings would have to be reconsidered to take the Court's ruling into account. As already noted, TWU has not specifically alleged that, in the absence of a stay, its private interests would sustain direct harm.
Arrayed against TWU's public interest position are a variety ofpublic and private interest arguments raised by the other parties, notably: (1) the need to deal expeditiously with important public policy matters raised by the proceedings; (2) the need to ensure against the regulatory uncertainty and consequent marketplace confusion that would result from the grant of a stay; (3) the direct and, in some cases, significant economic harm that resellers, prospective resellers, and carriers would incur were a stay to be granted; (4) the dislocation to existing contractual, financial, marketing and management commitments entered into between these parties and their suppliers and subscribers, who relied on one or more past Commission rulings that resellers are not "companies"; (5) TWU will itself sustain no harm if the stay request is denied; (6) some of the proceedings in question are only incidentally related to resale, or if related, are not at all related to the issue of concern to TWU, i.e., the regulation of resellers by the Commission; and (7) some of the proceedings are complementary in nature to TWU's litigation and, therefore, ought to be continued and expedited, not delayed.
The Commission notes TWU's reliance on the Federal Court of Appeal's decision to grant a stay in the earlier TWU case for the proposition that maintenance of an existing regulatory regime pending the outcome of a legal appeal is a valid public interest objective. In the present case, however, the Commission considers that there are a number of other equally validpublic interest considerations to take into account, such as the Commission's statutory duty to dispose of the significant issues of public policy raised by the applications that led to the proceedings in question, including the Interexchange Competition, Cellular Resale and AOS proceedings.
In addition, the Commission is of the view that granting a stay in the present case would not serve to fulfill the same public interest objective as did the stay granted by the Federal Court of Appeal in the earlier TWU case. In the Commission's opinion, the factual circumstances of this case are fundamentally different from those before the Court in the earlier TWU case. In that case, the ultimate issue before the Court was whether or not the Commission had the statutory authority to forbear from regulating a particular carrier, CNCP Telecommunications, that had historically filed tariffs of its tolls for Commission approval. There was agreement among all parties to that case that CNCP was a company under the Railway Act. The Commission's decision to no longer approve the rates charged by CNCP clearly represented a modification of the prior existing regulatory regime that had been authorized by Parliament. In granting TWU's request to stay the implementation of that decision pending the outcome of its litigation, the Court held that the balance of convenience lay in requiring the Commission to continue to regulate CNCP Telecommunications in its traditional manner. By contrast, in the present case, the Commission has never regulated resellers. The Commission's 1985 decision that resellers are not Railway Act companies is the regulatory regime that it has traditionally applied. It is TWU in the present case that is seeking to establish an altogether new regulatory regime for resellers. As such, the Commission considers that the earlier TWU case can be easily distinguished on its facts and is inapplicable to the present situation.
With respect to the private interests of the other parties that have provided comments, the Commission agrees with several of the parties that the timing of TWU's legal challenge and stay request could have profound negative consequences for their operations. These parties have observed that TWU was a participant in the proceeding that culminated in Decision 85-19 and, as such, could have appealed that part of the decision in which the Commission ruled that resellers were not required to file tariffs of their tolls for Commission approval. Had TWU appealed Decision 85-19 to the Federal Court of Appeal in 1985, the Court could have ruled on the Commission's jurisdiction to regulate telecommunications resellers prior to the emergence of a Canadian resale industry, which today exists as a dynamic, competitive alternative to the telephone companies. These resellers have already committed sizeable investments of money, research and time in establishing a market foothold, and have entered into numerous business arrangements and agreements with suppliers and subscribers. Resellers and their suppliers and subscribers are all potentially prejudiced by TWU's delay in bringing before the Courts the Commission's ruling regarding the regulation of resellers. So too are other parties, such as Unitel,BCRL, Bell, B.C. Tel and Teleglobe, whose applications led to the initiation of the six proceedings in question. TWU would not now be seeking to delay these proceedings had it pursued its appeal avenue in 1985.
The Commission also shares the concern expressed by a number of parties that there appears at best to be a tenuous connection between TWU's court action and the six proceedings sought to be stayed. These parties have argued that the issues raised in the proceedings are significant and that they can and must be resolved regardless of the outcome of TWU's litigation. They contend that the legal issue of whether resellers are companies within the meaning of the Railway Act has no bearing on the issues associated with their respective proceedings.
In this regard, it should be noted that in none of the six proceedings is the Commission called upon to resolve the particular issue of whether or not resellers are companies under the Railway Act. Nor, as stated above, has the Commission been persuaded by TWU that it would be necessary to revise or overturn any of the possible decisions relating to the six proceedings should the Court decide that resellers are companies within the meaning of the Railway Act. Moreover, as noted, TWU is a registered party to each of the proceedings in question and, as such, is entitled to appeal and to seek to stay the implementation of any of the Commission's decisions to be rendered at the conclusion of those proceedings. The Commission has weighed the relevant public and private interests at stake in connection with this stay request and concludes that the other parties to this proceeding would sustain greater harm if TWU's stay request were to be granted than will TWU if the stay request is denied. In the circumstances, the Commission concludes that TWU has not satisfied the balance of convenience criterion.
Having determined that TWU has failed to satisfy the criteria of irreparable harm and balance of convenience, the Commission considers it unnecessary to assess whether TWU has raised a serious question to be tried by the Federal Court.
Accordingly, the Commission denies TWU's request for a stay of the six proceedings in question pending the outcome of its litigation.
Allan J. Darling
Secretary General
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