ARCHIVED -  Telecom Order CRTC 97-779

Telecom Order

Ottawa, 10 June 1997

Telecom Order CRTC 97-779

The Commission received an application from CAM-NET Communications Inc. (CAM-NET) dated 16 October 1995 to review and vary Telecom Order CRTC 95-481 dated 20 April 1995 (Order 95-481), pursuant to section 62 of the Telecommunications Act (the Act).

File No.: 95-1124

1. The Commission had received an application dated 20 September 1994 from CAM-NET (enclosing an affidavit dated 13 September 1994) for exemption from contribution charges for Centrex services leased from Bell Canada (Bell).

2. By letter dated 16 January 1995, Commission staff advised CAM-NET that it had filed a deficient affidavit and stated that the affidavit must be sworn or affirmed before a Commissioner of Oaths (not merely signed before same) within 15 days, or the application might be denied. A sample affidavit, with an appropriate jurat, was enclosed.

3. By letter dated 3 February 1995, Bell advised that it had not received a revised affidavit from CAM-NET.

4. The Commission subsequently denied CAM-NET's application in Order 95-481.

5. By letter dated 16 October 1995, CAM-NET requested that Order 95-481 be amended to grant it an exemption retroactive to the date of the original affidavit (13 September 1994). CAM-NET apologized for its oversight in not filing a proper affidavit as requested by the Commission staff letter dated 16 January 1995. CAM-NET enclosed a new affidavit dated 17 October 1995.

6. By letter dated 6 February 1996, Bell noted that a similar situation existed with respect to CTX Telecommunications Inc. (CTX), which failed to provide an affidavit as required by the Commission and whose application was also denied in Order 95-481.

7. Bell stated that CTX filed an affidavit on 25 April 1995 (5 days after Order 95-481), plus an application to review and vary Order 95-481. Bell stated that CTX indicated that its affidavit had been misplaced or overlooked.

8. Bell stated that CTX's affidavit was dated 27 January 1995 and thus predated Order 95-481. Bell stated that in Telecom Order CRTC 95-1066, 28 September 1995, the Commission granted CTX's request to vary Order 95-481 and granted an exemption from contribution charges effective the date of the original application.

9. However, Bell submitted that there are significant differences between the cases of CTX and CAM-NET. Bell noted that CAM-NET's new affidavit of 17 October 1995 is dated some six months after its application was denied, whereas CTX's affidavit was prepared and sworn within the time period allowed by the Commission and prior to the date of Order 95-481.

10. Bell submitted that CAM-NET also has not addressed the criteria for review and variance of Order 95-481 and that CAM-NET was provided with ample opportunity to address the shortcomings of its original application prior to its denial, and failed to do so.

11. Bell agreed that CAM-NET's affidavit of 17 October 1995 appears to satisfy the Commission's evidentiary requirements. However, Bell noted that the Commission's usual practice, as set out in Effective Date of Contribution Exemptions, Telecom Public Notice CRTC 95-26, 12 June 1995 and applied in numerous orders, is that applications are normally granted effective the date of application, absent special circumstances.

12. Bell submitted that CAM-NET's letter of 16 October 1995 and affidavit of 17 October 1995 should be viewed as a new application, and therefore the effective date of the requested exemption should be 17 October 1995.

13. By letter dated 18 February 1997, CAM-NET submitted that it would be unfair to change the effective date of the contribution exemption to 16 October 1995, instead of to the original application date of September 1994 for the following reasons: (1) the lines that were requested to be contribution exempt have not changed and both affidavits are identical, save that the first one was apparently not properly sworn before a Commissioner of Oaths; (2) since the services in question are Bell Centrex services, Bell would know with certainty that the Centrex lines were not connected to interexchange facilities that would attract contribution; and (3) CAM-NET has been financially penalized by paying to Bell excess contribution charges since September 1994, that should not have been payable at all. CAM-NET stated that it has had to finance this cash shortfall, and that the financial penalty it has incurred is more than reasonable penalty to pay for what was only a procedural oversight.

14. The Commission finds that CAM-NET's new affidavit is sufficient to support granting an exemption from 16 October 1995 forward, since it meets the evidentiary requirements of Applications for Contribution Exemptions, Telecom Decision CRTC 93-2, 1 April 1993.

15. Given the finding above, there remains two issues. The first issue is whether the Commission correctly rejected the original affidavit in Order 95-481 and if the finding regarding the first issue is negative, then the second issue is whether CAM-NET should receive a contribution exemption as of 13 or 20 September 1994.

16. While CAM-NET did not style its request of 16 October 1995 as an application with respect to section 62 of the Act, the Commission considers that its request for approval retroactive to the date of the original affidavit of 13 September 1994 amounts to an application to review and vary Order 95-481.

17. The Commission has established that, in order for it to review and vary a decision pursuant to section 62 of the Act, the applicant must demonstrate, on a prima facie basis, the existence of one or more of the following: (1) an error in law or in fact; (2) a fundamental change in circumstances or facts since the decision; (3) a failure to consider a basic principle that had been raised in the original proceeding; or (4) a new principle that has arisen as a result of the decision. The Commission has also noted that residual discretion exists in section 62 of the Act so as to permit the Commission to determine that there is substantial doubt as to the correctness of its original decision and that reappraisal is accordingly warranted.

18. With respect to the first issue above, the review criterion that appears relevant is "substantial doubt as to the correctness of the decision". The Commission is of the view that there are a number of factors present in the circumstances of this case that weigh in favour of finding substantial doubt as to the correctness of the denial of CAM-NET's application in Order 95-481.

19. The Commission notes that CAM-NET has alleged, and Bell has not denied, that the Centrex lines in question have not changed since the original affidavit. Thus, Bell has been aware of the claim for exemption for these lines since September 1994, and would not have suffered prejudice merely by the use of the word "signed" in the 13 September 1994 affidavit.

20. The Commission notes that the only significant difference between the two affidavits in this case is that the earlier one stated that it was signed, as opposed to sworn. Given that in the earlier affidavit, the deponent stated that he "makes oath and says", and a Commissioner has witnessed and placed a notarial seal upon the document, the Commission considers that it may conclude that it was indeed sworn. The Commission finds that rejecting the affidavit in Order 95-481 solely on the basis that it stated that it was signed rather than sworn or affirmed appears to have been a reliance on form over substance.

21. Accordingly, the Commission finds that there is substantial doubt as to the correctness of the denial of CAM-NET's application set out in Order 95-481.

22. With respect to the second issue, current practice is to make the exemption effective the earlier of the date of the original affidavit or the original application, if there is not a great difference between these two dates, and accordingly, the appropriate effective date would be 13 September 1994 in this case.

23. In light of the foregoing, the Commission orders that:

Order 95-481 is varied such that CAM-NET's application is approved effective 13 September 1994.

Allan J. Darling
Secretary General

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