Telecom - Secretary General Letter addressed to Kevin Contzen (Ministry of Attorney General)
Ottawa, 16 may 2023
Our reference: 8662-P114-202301100
BY EMAIL
Kevin Contzen
Legal Services Branch
Ministry of Attorney General
1301 – 865 Hornby Street
Vancouver, British Columbia, V6Z 2g3
Kevin.contzen@gov.bc.ca
Subject: Application to Stay Telecom Decision CRTC 2022-311
Dear Mr. Contzen:
Background
This letter sets out the Commission’s decision regarding a request filed by British Columbia’s Minister of Transportation and Infrastructure (MOTI), on behalf of His Majesty the King in right of the Province of British Columbia. MOTI requested a stay of the Commission’s decisionNote de bas de page1 that it enter into an agreement, upon request, with any carrier (other than Rogers and Shaw), that is licensed by TELUS Communications Inc.’s (TCI) to be on its poles (the Directives). MOTI sought the stay as part of its Part 1 application, dated 24 February 2023, requesting that the Commission review and rescind the Directives.
Since the Directives apply only until the Commission approves TCI’s revised tariff pages to allow for fair compensation to attaching carriers, a stay would apply only until the Commission disposes of MOTI’s review and vary application or approves TCI’s revised tariff pages, whichever occurs first.
The Applicable Test
The criteria that the Commission generally applies 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 are: 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
Regarding the first criterion for a stay, MOTI submitted that it has raised a serious question to be tried. MOTI alleged that there is substantial doubt as to the correctness of the Commission’s decision to issue the Directives on the basis that it involved errors of law and fact.
Regarding the irreparable harm criterion, MOTI argued that the administrative costs of creating temporary agreements with other carriers and any payments to the carriers could be significant and would be at British Columbia taxpayers’ expense and would not be recoverable if MOTI is successful in its Part 1 Application. MOTI described the types of administrative costs that it would incur to conclude and administer agreements with TCI’s licensees. MOTI stated that it expects that the administrative costs that it could incur would exceed any payments for reasonable relocation costs that might be incurred by a TCI licensee because of a MOTI requested relocation, payable to any carriers under a short-term agreement. MOTI noted that TCI confirmed in its cover letter to Tariff Notice No. 576 that it has not been informed of any new projects regarding MOTI-initiated relocation for poles owned by TCI.
Regarding the balance of convenience, MOTI reiterated that its costs would outweigh any compensation that might be payable to the other carriers during the temporary period during which the Directives are in effect. MOTI submitted that while denying a stay would result in irreparable harm to it, granting the stay would not result in irreparable harm to any party.
Interventions
Interventions were filed by Quebecor Media Inc. (Quebecor), TCI, and jointly by Rogers Communications Canada Inc. (RCCI) and Shaw Cablesystems G.P. (Shaw).
The intervenors submitted that MOTI’s application did not meet the test to grant a stay. TCI submitted that MOTI’s arguments were hypothetical, and the argument of irreparable harm was not founded. RCCI and Shaw stated that MOTI did not have to incur material new administrative costs to implement new cost sharing agreements with other carriers. Quebecor stated that the irreparable harm was hypothetical, as MOTI has admitted to not relocating any TCI-owned poles since the decision was issued.
Commission analysis and determination
Is there a serious issue to be determined?
The Commission considers that MOTI’s stay request is neither vexatious nor frivolous and raises serious issues to be determined. Therefore, MOTI has met this first criterion.
Will MOTI suffer irreparable harm if the stay is not granted?
The Court in RJR M-MacDonald stated that in assessing irreparable harm, it is the nature of the harm that is to be considered and not its magnitude. An applicant must demonstrate that the harm is real, definite, unavoidable, and cannot be repaired later.Note de bas de page2 Harm is also more likely to be irreparable when there is a loss that is unquantifiable, that the applicant may not be able to recover, or that a final order may not be able to redress. Further, the harm cannot be speculative, there must be evidence that the moving party will suffer irreparable harm if the injunction or the stay is denied.Note de bas de page3
MOTI did not provide any evidence of the costs it would incur prior to a Commission decision on its review and vary application or the TCI revised tariff, and how exactly its stated increase in administrative costs would negatively impact taxpayers. Instead, MOTI outlined the administrative tasks that would likely have to be performed if it received a request for an agreement prior to Commission approval of the TCI revised tariff pages.
MOTI’s administrative costs would only occur if a carrier requests an agreement with MOTI. There is, however, no evidence on the record of any new MOTI-initiated pole relocation projects that involve TCI’s poles or of any requests by another carrier seeking to enter into an agreement with MOTI for relocation compensation.
The Commission considers that MOTI has failed to demonstrate that it will actually incur any unavoidable costs prior to a Commission decision on MOTI’s review and vary application or approving TCI’s tariff revision, whichever occurs first.
The Commission therefore concludes that MOTI failed to demonstrate that it will incur irreparable harm and has thus not satisfied the second criterion.
Does the balance of convenience favour granting the stay?
In order to meet the third 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. As confirmed in RJR-MacDonald, the factors to be considered in applying this criterion will vary depending on the facts of each case.
MOTI submitted that the costs of negotiating and implementing the Directives would outweigh any compensation that might be payable under them. However, MOTI did not present any evidence in support of this submission.
MOTI did not provide any evidence of the monetary cost of negotiating agreements with other carriers. Further, as noted above, the record does not reveal any known circumstance that would trigger a request by a carrier for an agreement. Accordingly, in the absence of a stay, any harm to MOTI that might be incurred could be minimal. If a stay were granted, however, the harm to other carriers, if they have to pay relocation costs in circumstances where TCI, and now Rogers and Shaw, are compensated for such relocation costs, combined with the public interest in avoiding the market distortion that would result from this scenario would be significant. In addition, the presumption is that the public interest is served more generally in implementing the Commission’s decision in a timely manner.
Even if MOTI had proven irreparable harm, the Commission concludes that the balance of convenience, including the public interest, strongly favours denial of the stay request.
Accordingly, the Commission has determined that MOTI did not satisfy the RJR-MacDonald criteria for granting a stay. The Commission therefore denies MOTI’s request for a stay of the Directives.
Yours sincerely
Original signed by
Claude Doucet
Secretary General
c.c.: Pamela Dinsmore, Rogers Communications Canada Inc., pam.dinsmore@rci.rogers.com
Chris Ewasiuk, Shaw Communications Inc., Christopher.Ewasiuk@sjrb.ca
Stephen Schmidt, TELUS, regulatory.affairs@telus.com
Yanick Boily, Québecor Média inc., regaffairs@quebecor.com
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