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ARCHIVED -  Telecom Public Notice CRTC 98-6

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Telecom Public Notice CRTC 98-6
  Ottawa, 20 March 1998
 

GUIDELINES FOR REVIEW AND VARY APPLICATIONS
  The Commission today announces guidelines for review and vary applications made under section 62 of the Telecommunications Act (the Act).
  All review and vary applications filed with the Commission after the date of this Public Notice will be considered in light of these guidelines.
  The guidelines provide the following:
  (a) a restatement of the test applied by the Commission in determining whether to exercise its power to review and vary its telecommunications decisions;
  (b) a list of factors that may be taken into consideration in determining whether an application should be considered a new application or a review and vary application; and
  (c) a time limit within which review and vary applications may generally be made.
  I BACKGROUND
  Section 62 of the Act states:
  The Commission may, on application or on its own motion, review and rescind or vary any decision made by it or re-hear a matter before rendering a decision.
  In Bell Canada, Request to Review that Part of Telecom Decision CRTC 78-7 of August 10, 1978 Dealing with the Saudi Arabian Telephone Project, Telecom Decision CRTC 79-1, 2 February 1979 (Decision 79-1), the Commission adopted criteria for assessing whether to exercise its power to review a prior decision.
  The criteria adopted in Decision 79-1 were enumerated as follows:
  ... that the applicant demonstrate, on a prima facie basis, the existence of one or more of the following:
  (a) an error in law or in fact
  (b) a fundamental change in circumstances or facts since the decision
  (c) a failure to consider a basic principle which had been raised in the original proceeding
  (d) a new principle which has arisen as a result of the decision.
  In addition to these criteria, the Commission concluded that, notwithstanding the lack of prima facie evidence that any of the above criteria had been met, it would also be open to it to determine that there was substantial doubt as to the correctness of its original decision and that reappraisal was accordingly warranted. This was noted, not as a fifth criterion, but as the Commission's residual discretion in making such determinations.
  In practice, rather than first considering whether the applicant has made out a prima facie case for review, the Commission has generally proceeded immediately to determine on the merits whether or not to review and vary the decision.
  II CRITERIA FOR REVIEW AND VARY APPLICATIONS
  The Commission has determined that it is appropriate to restate the test for determining whether to exercise its power under section 62 of the Act such that substantial doubt as to correctness will be the primary test. The four enumerated criteria set out in Decision 79-1 will remain relevant as examples of when there might be substantial doubt as to the correctness of an original decision.
  While, in practice, this test will not change the result in any particular case, it will direct the parties to address the essential question to be determined and assist them in being more focused in their approach.
  Accordingly, in order for the Commission to exercise its discretion pursuant to section 62 of the Act, applicants must demonstrate that there is substantial doubt as to the correctness of the original decision, for example due to:
  (i) an error in law or in fact;
  (ii) a fundamental change in circumstances or facts since the decision;
  (iii) a failure to consider a basic principle which had been raised in the original proceeding; or
  (iv) a new principle which has arisen as a result of the decision.
  The Commission notes that there may still be instances where the Commission may decide to review a decision in the first instance, for example, where it considers there was a procedural error, and then conduct a proceeding to determine whether to vary the decision.
  III TIMEFRAME FOR FILING REVIEW AND VARY APPLICATIONS
  Given the public interest in regulatory certainty, the Commission has determined that applications made pursuant to section 62 of the Act should generally be filed within six months of the Commission's original decision.
  Review and vary applications made after that time will generally only be considered in exceptional circumstances and if the Commission is satisfied that there are good reasons for the delay. One example of exceptional circumstances would be where a fundamental change in circumstances occurring more than six months after the decision raises substantial doubt as to the correctness of the original decision.
  IV CRITERIA FOR DISTINGUISHING REVIEW AND VARY APPLICATIONS FROM NEW APPLICATIONS
  In the past, some applications have been framed as new applications when they should have been framed as review and vary applications, and vice versa. The delineation of general guidelines for distinguishing among the various applications should assist applicants in determining whether to proceed by way of a new application or a review and vary application and avoid unnecessary delays.
  The "substantial doubt" test outlined above will assist the Commission in its determination as to whether an application should be treated as a new application or a review and vary application. Where an application raises substantial doubt as to the correctness of the original decision at the time it was made, the Commission will generally consider the application to be a review and vary application. However, where the application essentially relates to the continuing correctness of a decision rather than its original correctness, the application will generally be treated as a new application.
  The Commission has identified five factors that, although not exhaustive, will assist in assessing whether an application raises an issue relating to the original or the continuing correctness of the decision in question and accordingly, whether it should be treated as a review and vary application or a new application. These factors are:
  (i) whether the application raises an error of law, jurisdiction or fact;
  (ii) the extent to which the issues raised in the application were central to the original decision;
  (iii) the extent to which the facts or circumstances relied upon in the application were relied upon in the original decision;
  (iv) the length of time since the original decision; and
  (v) whether the resulting decision would supersede the original decision in a prospective manner as opposed to curing an error on a retrospective basis.
  In considering whether an application essentially relates to the original or the continuing correctness of a decision, a number of the factors outlined above may be applicable to any particular situation. One factor may suggest that an application be treated as a review and vary application while another may suggest it is a new application. The weight to be given to each of these factors will depend on the circumstances of each case.
  Where an application relates only to the legal or factual correctness of the original decision, it will generally be treated as a review and vary application, except where the error is clerical or otherwise of the type which would justify the issuance of an erratum.
  Where an application raises an issue that was not addressed in the original decision, or was clearly peripheral to it, the application will generally be considered as a new application. If, on the other hand, the application challenges the correctness of an integral aspect of the original decision, it will generally proceed as a review and vary application.
  The extent to which the facts or circumstances raised in the application were relied upon in the original decision will generally be relevant where the application relates to a substantial change in circumstances. In general, where the original decision was correct at the time it was made but new facts or circumstances have arisen that render the original decision inappropriate or obsolete in light of them, the application will be treated as a new application. However, when a change in circumstances or facts raises a substantial doubt as to the correctness of the original decision at the time it was rendered, the matter is not generally one of continuing correctness, but one of original correctness. Such applications will generally be treated as review and vary applications.
  The greater the time period which has passed since the original decision, the more likely that an application will raise a substantial doubt as to the continuing correctness of the decision, and therefore, be more appropriately treated as a new application. It is to be noted that this factor will, in many instances, be closely related to a change in circumstances as it is not the passage of time per se that is significant, but rather the change in facts or circumstances.
  Finally, where a party seeks to vary a decision such that the variance has retrospective effect, the application will generally be treated as a review and vary application.
  This document is available in alternative format upon request.
  Laura M. Talbot-Allan
Secretary General
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