Telecom - Secretary General Letter addressed to Philippe Gauvin (Bell Canada)

Ottawa, 18 April 2023

Our reference: 8662-B2-202209973

BY EMAIL

Philippe Gauvin
Assistant General Counsel
Bell Canada
160 Elgin Street, Floor 19
Ottawa, Ontario, K2P 2C4
bell.regulatory@bell.ca

Subject: Application to Stay Telecom Decision CRTC 2022-341

Dear Philippe:

Background

On 21 December 2022, Bell Canada (Bell) filed a Part 1 application to review and vary Telecom Regulatory Policy (TRP) 2018-377 and Decision 2022-341 pursuant to section 62 of the Telecommunications Act (the Act) and Part 1 of the Canadian Radio-television and Telecommunications Commissions Rules of Practice and Procedure. In addition, Bell requested a stay of Telecom Decision 2022-341. The Commission has dealt with the request for a stay and the decision is contained herein. The decision regarding the application to review and vary the above decisions will be published at a later date.

The Applicable Test

The criteria that the Commission has generally chosen to apply to assess applications for a stay are those set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311 (RJR-MacDonald). These criteria (the RJR-MacDonald criteria) are that: a) there is a serious issue to be determined; b) the party seeking the interim relief will incur irreparable harm if the relief is not granted; and c) the balance of convenience, taking into account the public interest, favours granting the stay. To be granted a stay, an applicant must demonstrate that its application meets all three criteria.

Application

Bell submitted that a stay should be granted because their application satisfies each element of the RJR-Macdonald criteria. For the first criteria, Bell stated that it is a low threshold and is satisfied because the National Contribution Fund (the Fund) has $148 million of uncalled contributions not yet awarded and collecting additional monies in 2023 would, Bell argues, exacerbate the perceived issue in the substantive application. For the second criteria, Bell stated the monies that will be collected in 2023 by the Fund could go to enhancing their networks and that the loss of the ability to fund these initiatives would cause irreparable harm as funding them may generate incremental revenue or profit and enhance their competitive position. Lastly, Bell argues that the balance of convenience favours granting the stay. They argue this is because the total amount of funds collected, in their opinion, significantly exceeds the amount that have been awarded by the fund to date and that no further grants are expected in the next year or two. As such, the relative inconvenience of denying the stay is greater for Bell as a contribution-payer than it is for other interested parties and the public interest.

Interventions

Eight interventions were filed relating to the application. The majority of the interventions do not mention the request for a stay explicitly and rather focus on the substantive aspects of the application. Six intervenors were generally in support of a portion or the entirety of the application but none made specific arguments supporting the request for a stay other than affirming their support for an immediate cessation of the collection of further funds for the Broadband Fund.  SSi and PIAC were opposed to the application in general, however SSi was the only intervenor that presented an in-depth position opposed to the request for a stay. SSi presented several arguments in opposition, including the lack of constraints regarding any returned funds, and the proportionality of the Fund’s revenues contributed by each payer.

Commission analysis and determination

Is there a serious issue to be determined?

In assessing whether Bell has satisfied the first part of the test, the Commission considers that Bell has raised serious issues to be determined and therefore that it has met this first criterion and that the stay request is neither vexatious nor frivolous.

Will Bell suffer irreparable harm if the stay is not granted?

In RJR-MacDonald the Supreme Court of Canada clarified that in assessing irreparable harm, it is the nature of the harm that is to be considered and not its magnitude. The issue of magnitude will, however, be relevant when assessing the matter of balance of convenience. Assuming the $13.4B in capital expenditures by TSP’s in 2022 cited in the application, the total amount of funding collected by the Broadband Fund in a given year represents less than 1% of total capital expenditures and thus not likely to cause irreparable harm.  Also, the Broadband Fund is a known cost of business and the amounts in questions have been in the public domain since 2016.  The Commission considers that Bell has not showed irreparable harm and therefore that it has not met the second criterion.

Does the balance of convenience favour granting the stay?

In order to meet the last criterion, the applicant must demonstrate that the balance of convenience, taking into account the public interest, favours granting the relief sought until the Commission has disposed of the issues.  Each party must show that it will suffer the greater harm if the Commission grants or refuses the relief sought. In RJR-MacDonald, the Supreme Court of Canada stated that the factors which must be considered in assessing this part of the test are many and will change in each individual case.  Pausing collection and then potentially resuming collection would be burdensome for the National Contribution Fund and the fee payers and could ultimately be more inconvenient to fee payers (and other parties) when compared to simply waiting for the Review and Vary decision to be published later in 2023.  In addition, the rate imposed in 2022-341 is an interim rate for 2023.  The Commission considers that, even if Bell had proven irreparable harm, the balance of convenience favours denying the stay request.
The Commission determined that Bell did not satisfy the criteria of the RJR-MacDonald criteria for granting a stay. Therefore, the Commission denies Bells’ request for a stay with respect to the revenue-percentage charge pertaining to the Broadband Fund for 2023 pending the outcome of the pending Part 1 application.

Yours sincerely

Original signed by

Claude Doucet
Secretary General

c.c.:Dean Proctor, SSi Canada, regulatory@ssicanada.com
W.N. (Bill) Beckman, Saskatchewan Telecommunications, document.control@sasktel.com
Julia Kennedy, Canadian Telecommunications Contribution Consortium Inc., jkennedy@fasken.com
Marielle Wilson, Bragg Communications Inc., regulatory.matters@corp.eastlink.ca
Jonathan Holmes, Independent Telecommunications Providers Association, regulatory@itpa.ca
Yuka Sai, Public Interest Advocacy Centre, ysai@piac.ca
Leonard Eichel, Cogeco Communications Inc., telecom.regulatory@cogeco.com
Alan Hamilton, TELUS Communications Inc., regulatory.affairs@telus.com

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