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ARCHIVED - Telecom Commission Letter Addressed to David Marshall (Solicitor) and Philippe Gauvin (Bell Canada)

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Ottawa, 8 June 2015

File number: 8690-C210-201409219

By Email

Mr. David Marshall
Solicitor
Duxbury Law Professional Corporation
500 – 1 King Street West
Hamilton, Ontario  L8P 1A4
david@duxburylaw.ca

Mr. Philippe Gauvin
Bell Canada
Senior Counsel – Regulatory Law and Policy
Floor 19, 160 Elgin Street
Ottawa, Ontario  K2P 2C4
philippe.gauvin@bell.ca
bell.regulatory@bell.ca

Subject: An application made on behalf of the City of Hamilton with respect to the establishment of a Municipal Access Agreement between the City and Bell Canada and associated matters – Commission determination regarding an interim relief

Dear Sirs,

This letter addresses a request by the City of Hamilton (the City), as part of the above-referenced application, for interim relief prohibiting Bell Canada from further constructing or maintaining its infrastructure in the City until such time as either Bell Canada and the City can agree to a new Municipal Access Agreement (MAA) or the Commission approves the terms and conditions of the City’s proposed MAA.

The Commission generally applies the criteria set out by the Supreme Court of Canada RJR-MacDonald decisionFootnote 1 to assess claims for interim relief. These criteria are;

  1. there is a serious issue to be determined;
  2. the party seeking the interim relief will incur irreparable harm if the relief is not granted; and
  3. the balance of convenience, taking into account the public interest, favours granting the interim relief.

Commission determination

As part of its application, the City failed to make any submissions in support of its request for interim relief, let alone address the interim relief criteria generally applied by the Commission to assess this type of relief. Furthermore, the City failed to address the interim relief criteria in its reply, despite having the opportunity of doing so given that Bell Canada noted in its answer that the City had not addressed the interim relief criteria.

In light of the above, the Commission denies the City’s request for interim relief as the City failed to demonstrate how its request meets the elements of the RJR-MacDonald test.  Further, based on the facts and given the specific relief sought by the City, the Commission considers that the City would likely not have satisfied the interim relief criteria even if it had addressed the RJR-MacDonald test.

Sincerely,

Original signed by

John Traversy
Secretary General

Footnotes

Footnote 1

[1994] 1 S.C.R. 311.

Return to footnote 1

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