MTS Allstream Inc. v. Telus Communications Co., (2009) 466 A.R. 296 (QB)

• Judge: Shelley, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 12, 2008
• Citations: (2009), 466 A.R. 296 (QB);2009 ABQB 131

MTS Allstream Inc. v. Telus Com. Inc. (2009), 466 A.R. 296 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. MR.042

MTS Allstream Inc. (applicant) v. Telus Communications Company (respondent)

(0803 10964; 2009 ABQB 131)

Indexed As: MTS Allstream Inc. v. Telus Communications Co.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Shelley, J.

March 2, 2009.

Summary:

The Canadian Radio-Television and Telecommunications Commission (CRTC) held, in decision 2007-10, that certain charges were being incorrectly applied to certain services provided by incumbent local exchange carriers (ILECs) and directed that refunds be paid to competitors consistent with the ILEC's Terms of Service. The decision noted that the Terms of Service "generally provide that ... a customer must be credited with the excess back to the date of the error, subject to the applicable limitation periods provided by law". In Alberta, Telus Communications Co. (an ILEC) refused to pay a portion of the over-charged amount on the basis of the Limitations Act. MTS Allstream Inc. (a competitor in Alberta) applied for a declaration under rule 410(e) that s. 3(1)(a) of the Act did not entitle Telus to claim immunity from refunding charges that were incorrectly billed prior to April 2004. Telus took the position that exclusive jurisdiction rested with the CRTC and sought an order to stay or dismiss the application.

The Alberta Court of Queen's Bench dismissed Telus' application. The court had concurrent jurisdiction with the CRTC and ought to exercise its jurisdiction in the circumstances. The nature of the dispute was one of statutory interpretation of a provincial statute which affected the enforceability of a debt which would otherwise be payable. The dispute fell outside of those matters which were squarely within the jurisdiction of the CRTC and was more in the area of private law. It would be more efficient and effective for the court to deal with the matter, than to have the CRTC engage in the interpretation and application of the "fairly new" Limitations Act.

Editor's Note: For a related case between the parties, see 466 A.R. 323; 2009 ABQB 598.

Administrative Law - Topic 9003

Boards and tribunals - Jurisdiction - General - Concurrent, overlapping or exclusive jurisdiction - [See Administrative Law - Topic 9058 ].

Administrative Law - Topic 9015

Boards and tribunals - Jurisdiction - General - Interpretation of incidental legislation - [See second, third and fourth Courts - Topic 8345 ].

Administrative Law - Topic 9058

Boards and tribunals - Jurisdiction of particular boards and tribunals - Canadian Radio-Television and Telecommunications Commission - The dispute between Telus Communications Co. and MTS Allstream Inc. related to the manner in which CRTC decision 2007-10 was to be implemented in Alberta in relation to the over-charging by Telus and the corresponding overpayment of certain rates by MTS - The Alberta Court of Queen's Bench stated that "The Telecommunications Act created a comprehensive scheme to govern the relationship between parties who are subject to the CRTC's regulatory authority. The setting of reasonable rates and tariffs falls within the core of the CRTC's expertise. The CRTC would have jurisdiction under s. 32(g) of the Telecommunications Act to hear and resolve the dispute between the parties ... MTS could have brought an application pursuant to s. 63(4) of the Telecommunications Act to have the CRTC enforce its decision; or pursuant to Part VII of the CRTC Telecommunications Rules of Procedure for clarification or enforcement of CRTC 2007-10; or for a ruling ... The issue, then, is whether this Court has concurrent jurisdiction to hear the matter and, if so, whether it should decline to do so in favour of the CRTC" - In the result, the court found that it had concurrent jurisdiction and ought to exercise its jurisdiction in the circumstances - See paragraphs 65 and 66.

Courts - Topic 2166

Jurisdiction - Limitations - Exercise of concurrent jurisdiction - [See fourth Courts - Topic 8345 ].

Courts - Topic 5600

Provincial courts - General - Concurrent and conflicting jurisdiction - General - [See first Courts - Topic 8345 ].

Courts - Topic 5686

Provincial courts - General - Jurisdiction or powers - Respecting federal boards or tribunals - [See first Courts - Topic 8345 ].

Courts - Topic 8345

Provincial courts - Alberta - Court of Queen's Bench - Jurisdiction - The Alberta Court of Queen's Bench stated that "[t]here is no doubt that this Court ordinarily has jurisdiction to issue a declaration pursuant to Rule 410(e) of the Alberta Rules of Court. It is only if another court or tribunal has exclusive jurisdiction over the subject matter, the parties, or the remedy, that this Court would lose its jurisdiction to issue such a declaration. Accordingly, the primary issue on this application is whether the CRTC [Canadian Radio-Television and Telecommunications Commission] has exclusive jurisdiction to resolve the matters raised in the originating notice ... If it is determined that this Court has concurrent jurisdiction with the CRTC, the issue becomes whether this Court should defer jurisdiction to the CRTC" - In determining the foregoing issues, the court stated that it must first determine the essential nature of the dispute between the parties - In the result, the court found that it had concurrent jurisdiction with the CRTC and ought to exercise its jurisdiction in the circumstances - See paragraphs 7 to 10.

Courts - Topic 8345

Provincial courts - Alberta - Court of Queen's Bench - Jurisdiction - The dispute between the parties (two telecommunication companies) related to the manner in which a decision of the Canadian Radio-Television and Telecommunications Commission (CRTC) was to be implemented in Alberta in relation to the over-charging by the respondent and the corresponding overpayment of certain rates by the applicant - The CRTC would have jurisdiction to resolve the dispute - At issue was whether the Alberta Court of Queen's Bench had concurrent jurisdiction and, if so, whether it should decline in favour of the CRTC - The analysis suggested in the case law required the court to first define the essential character of the dispute without regard to its legal characterization by the parties; then, to consider whether the legislation set out a means of resolving the dispute and, if so, the effectiveness of the procedure available to resolve it - In the result, the court characterized the nature of the dispute as one of statutory interpretation of the Alberta Limitations Act which affected the enforceability of a debt which would otherwise be payable - "This dispute falls outside of those matters which are squarely within the jurisdiction of the CRTC and is more in the area of private law" - In the result, the court found that it had concurrent jurisdiction with the CRTC and ought to exercise its jurisdiction in the circumstances - See paragraphs 66 to 71.

Courts - Topic 8345

Provincial courts - Alberta - Court of Queen's Bench - Jurisdiction - The dispute between the parties (two telecommunication companies) related to the manner in which a decision of the Canadian Radio-Television and Telecommunications Commission (CRTC) was to be implemented in Alberta in relation to the over-charging by the respondent and the corresponding overpayment of certain rates by the applicant - The respondent refused to pay a portion of the over-charged amount on the basis of the Alberta Limitations Act - The Alberta Court of Queen's Bench noted that the CRTC's decision specifically contemplated that its enforcement would be subject to provincial limitations statutes, suggesting "that such adjudication by this Court may well have been within its contemplation" - The court characterized the nature of the dispute as one of statutory interpretation, and stated that "the Alberta Limitations Act is relatively new ... While the CRTC may have jurisdiction to determine this issue, the CRTC's area of expertise is not the interpretation of limitations legislation in the Province of Alberta. In the absence of some compelling reason to the contrary, the interpretation of relatively new Alberta legislation is best left to the Alberta Courts, who have knowledge of the background and underlying policies which gave rise to the new limitations statute and who have, since its enactment, been called upon to interpret it as issues arise in relation to it" - In the result, the court found that it had concurrent jurisdiction with the CRTC and ought to exercise its jurisdiction in the circumstances - See paragraphs 68 to 72.

Courts - Topic 8345

Provincial courts - Alberta - Court of Queen's Bench - Jurisdiction - The dispute between Telus Communications Co. and MTS Allstream Inc. related to the manner in which a decision of the Canadian Radio-Television and Telecommunications Commission (CRTC) was to be implemented in Alberta in relation to the over-charging by Telus and the corresponding overpayment of certain rates by MTS - The Alberta Court of Queen's Bench found that it had concurrent jurisdiction with the CRTC to hear the matter - Telus argued that the court should choose not to exercise its jurisdiction because one aspect of MTS' argument, namely, discoverability within the meaning of the Alberta Limitations Act, would involve a factual analysis requiring understanding of the terminology and technology involved and that the CRTC was already familiar with both - The court was satisfied that evidence related to discoverability might be discerned from the CRTC decision and the documents, and that it would be able to understand both the terminology and technology required in order to adjudicate the matter - "Therefore, it would be more efficient and effective for this Court to deal with a matter which is one of statutory interpretation, than to have the CRTC engage in the interpretation and application of a fairly new provincial statute with which it is not familiar and for which there is little case law to provide guidance on this specific issue" - See paragraphs 73 to 75.

Telecommunications - Topic 3

General - Jurisdiction - [See Administrative Law - Topic 9058 ].

Cases Noticed:

Shaw Cablesystems (SMB) Ltd. et al. v. MTS Communications Inc. et al. (2006), 201 Man.R.(2d) 242; 366 W.A.C. 242; 265 D.L.R.(4th) 730; 2006 MBCA 29, consd. [para. 15].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, consd. [para. 16].

MuchMusic Network v. Coast Cable Visions Ltd. et al., [1995] B.C.T.C. Uned. 110; 59 C.P.R.(3d) 207 (S.C.), consd. [para. 16].

Whistler Cable Television Ltd. v. Ipec Canada Inc., [1992] B.C.T.C. Uned. F55; 75 B.C.L.R.(2d) 48 (S.C.), consd. [para. 16].

Rogers Cable TV Ltd. v. 373041 Ontario Ltd. (1996), 69 C.P.R.(3d) 85 (Ont. Gen. Div.), varied [1998] O.A.C. Uned. 510 (C.A.), consd. [para. 16].

Mahar v. Rogers Cablesystems Ltd. (1995), 25 O.R.(3d) 690 (Gen. Div.), consd. [para. 18].

Allstream Corp. v. Bell Canada et al. (2005), 388 N.R. 177; 2005 FCA 247, refd to. [para. 22].

British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739; 183 N.R. 184, refd to. [para. 22].

Bell Canada v. Canadian Radio-Television and Telecommunications Commission, [1989] 1 S.C.R. 1722; 97 N.R. 15, refd to. [para. 22].

British Columbia (Attorney General) v. Canadian Pacific Railway Co., [1906] A.C. 204 (P.C.), consd. [para. 24].

Toronto (City) v. Grand Trunk Railway Co. (1906), 37 S.C.R. 232, consd. [para. 24].

Toronto (City) v. Canadian Pacific Railway Co., [1908] A.C. 54 (P.C.), consd. [para. 24].

Toronto Railway Co. v. Toronto (City), [1920] A.C. 426; 51 D.L.R. 55 (P.C.), consd. [para. 24].

Canadian Pacific Railway Co. v. Toronto Transportation Commission, [1930] A.C. 686, consd. [para. 24].

Federation of Canadian Municipalities v. Canadian Radio-Television and Telecommunications Commission, [2003] 3 F.C. 379; 299 N.R. 165; 2002 FCA 500, consd. [para. 24].

Quebec (Attorney General) v. Nipissing Central Railway Co., [1926] A.C. 715 (P.C.), consd. [para. 24].

Chrysler Canada Ltd. v. Competition Tribunal (Can.) et al., [1992] 2 S.C.R. 394; 138 N.R. 321, refd to. [para. 26].

Barraclough v. Brown, [1897] A.C. 615 (H.L.), consd. [para. 28].

Orpen v. Roberts, [1925] S.C.R. 364, consd. [para. 28].

Terrasses Zarolega Inc., Zappia, Robinson, Lepine and Gaty v. Régie des Installations Olympiques, [1981] 1 S.C.R. 94; 38 N.R. 411, consd. [para. 28].

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, consd. [para. 28].

Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources) et al., [1989] 2 S.C.R. 49; 97 N.R. 241, consd. [para. 28].

Lethbridge (City) v. Canadian Western Natural Gas, Light, Heat and Power Co., [1923] S.C.R. 652, consd. [para. 31].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 32].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 34].

Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057 et al., [1990] 1 S.C.R. 1298; 109 N.R. 321; 66 Man.R.(2d) 81, consd. [para. 34].

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Regina, [2000] 1 S.C.R. 360; 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23, consd. [para. 34].

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64, consd. [para. 34].

Sprint Canada Inc. et al. v. Bell Canada et al. (1997), 48 O.T.C. 4; 79 C.P.R.(3d) 31 (Gen. Div.), affd. (1999), 116 O.A.C. 297 (C.A.), consd. [para. 41].

Lethbridge (City) v. Canadian Western Natural Gas, Light, Heat and Power Co., [1923] S.C.R. 652, consd. [para. 43].

Strata Plan LMS 1816, Owners v. British Columbia Hydro and Power Authority, [2002] B.C.T.C. 485; 2002 BCSC 485, consd. [para. 43].

Direct Energy Marketing Ltd. et al. v. Centra Gas Manitoba Inc. (1999), 139 Man.R.(2d) 91 (Q.B.), affd. (2000), 142 Man.R.(2d) 152; 212 W.A.C. 152 (C.A.), consd. [para. 43].

Armaly v. Correctional Service of Canada et al. (2002), 299 A.R. 188; 266 W.A.C. 188 (C.A.), leave to appeal refused (2002), 301 N.R. 390; 317 A.R. 400; 284 W.A.C. 400 (S.C.C.), consd. [para. 48].

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 153 N.R. 1; 27 B.C.A.C. 81; 45 W.A.C. 81, consd. [para. 48].

Reza v. Minister of Employment and Immigration, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 348, consd. [para. 48].

British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739; 183 N.R. 184, consd. [para. 54].

BC Tel v. Steeplejack Services (Canada) Ltd., [1997] B.C.T.C. Uned. 699 (S.C.), consd. [para. 54].

Groupe TVA Inc. v. Bell Expressvu Société en Commandité, [2004] Q.J. No. 7585 (S.C.), consd. [para. 54].

Toronto (City) v. AT & T Canada Inc. et al., [2001] O.T.C. Uned. B18; 28 M.P.L.R.(3d) 83 (Sup. Ct.), consd. [para. 54].

Brake v. University of Toronto Community Radio Inc. et al., [2000] O.T.C. Uned. 147 (Sup. Ct.), consd. [para. 54].

Puerto Rico (Commonwealth) v. Hernandez, [1975] 1 S.C.R. 228, consd. [para. 61].

Howarth v. National Parole Board, [1976] 1 S.C.R. 453; 3 N.R. 391, consd. [para. 61].

Statutes Noticed:

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 18 [para. 13].

Limitations Act, R.S.A. 2000, c. L-12, sect. 3(1)(a) [para. 14].

Rules of Court (Alta.), rule 410(e) [para. 11].

Telecommunications Act, S.C. 1993, c. 38, sect. 63 [para. 12].

Authors and Works Noticed:

de Smith, Stanley Alexander, Judicial Review of Administrative Action (4th Ed. 1980), pp. 358, 359 [para. 28].

Counsel:

K.P. Feehan, for the applicant;

A.Z. Breitman and R. Pelletier, for the respondent.

This application was heard on November 12, 2008, by Shelley, J., of the Alberta Court of Queen's Bench, who delivered the following judgment and reasons for judgment, dated at Edmonton, Alberta, on March 2, 2009.