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Telecom Decision CRTC 2003-71
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Ottawa, 17 October 2003
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Application by MTS Communications Inc. for a stay of Allstream v. MTS - Sherbrook Central Office, Telecom Decision CRTC 2003-62
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Reference: 8638-C12-200314211 and 8622-A4-20/02
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1.
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The Commission received an application dated 10 October 2003, filed by MTS Communications Inc. (MTS) which requested that the Commission stay the show cause proceedings initiated by Allstream v. MTS - Sherbrook Central Office, Telecom Decision CRTC 2003-62, 19 September 2003 (Decision 2003-62) pending the disposition of an application by MTS to review and vary Decision 2003-62.
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Background
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2.
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In Decision 2003-62, the Commission made MTS responsible for the cost of the installation and maintenance of conditioning equipment required to continue the provision of digital Centrex service to a customer of Allstream Corp. (Allstream). These costs arose because of a reconfiguration of MTS' network which involved the relocation of some unbundled loops leased by Allstream from the Sherbrook Central Office to the Inkster Central Office.
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3.
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In Decision 2003-62, the Commission also initiated two follow-up proceedings. The Commission directed MTS to show cause within 30 days of the date of the decision as
to why it should not pay for all the expenses incurred by Allstream as a result of the network reconfiguration. The Commission also invited parties, including but not limited
to, TELUS Communications Inc., Bell Canada, Aliant Telecom Inc., Saskatchewan Telecommunications, MTS, TELUS Communications (Québec) Inc., Société en commandite Télébec, Allstream, Call-Net Enterprises Inc., Microcell Telecommunications Inc., LondonConnect Inc. and FCI Broadband to show cause, within 30 days of the date of the decision as to why the Commission should not adopt for them the provisions for dealing with network reconfigurations outlined in Decision 2003-62.
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The application
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4.
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MTS submitted that it intended to file an application pursuant to section 62 of the Telecommunications Act to review and vary Decision 2003-62 with respect to the Commission's decision that MTS must pay the costs to provide digital Centrex service to Allstream's customer. MTS stated its intention to file its review and vary application by 31 October 2003.
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5.
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MTS submitted that the issues to be canvassed in its review and vary application concerned the responsibility of incumbent telephone companies for services provided to their competitors. MTS argued that these issues were closely related to both of the
follow-up proceedings initiated by the Commission in Decision 2003-62.
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6.
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MTS submitted that, given the relationship between the follow-up proceedings and its proposed review and vary application, it would be appropriate for the Commission to stay that part of Decision 2003-62 which initiated the two follow-up proceedings pending the outcome of MTS' review and vary application.
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7.
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MTS argued that any slight delay caused to the follow-up proceedings by its review and vary application would not cause irreparable harm to any of the other participants in those proceedings.
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Commission analysis and determination
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8.
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Before granting a stay of a decision, the Commission has required the party requesting the stay to demonstrate that it meets the criteria set out by the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.[1987] 1 S.C.R. 110, as modified by the Court's decision in RJR-MacDonald Inc. v. Canada (Attorney General) [1974] 1 S.C.R. 311 (the RJR-MacDonald criteria). These criteria are that:
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(a) there is a serious issue to be determined;
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(b) the party seeking the stay will suffer irreparable harm if the stay is
not granted; and
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(c) the balance of convenience, taking into account the public interest,
favours granting a stay.
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9.
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The Commission notes that, in its application seeking a stay of Decision 2003-62, MTS has not directly addressed the RJR-MacDonald criteria.
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10.
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The Commission considers that MTS has not demonstrated that it would suffer irreparable harm if the stay is not granted. The lack of irreparable harm to other parties as argued by MTS, is not, in the Commission's view, relevant to determining whether or not MTS would suffer irreparable harm if the Commission denied its application for a stay.
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11.
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An applicant for a stay of a Commission decision is required to establish that it has met all three of the RJR-MacDonald criteria. In light of the Commission's determination with respect to irreparable harm, it is not necessary to consider whether MTS has successfully met the other criteria.
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12.
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The Commission denies MTS' application for a stay of Decision 2003-62.
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Secretary General
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This document is available in alternative format and may also be examined at the following Internet site: www.crtc.gc.ca
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Date Modified: 2003-10-17