MTS Allstream Inc. v. Telus Communications Co.,

• Judge: Martin,Paperny,Sulyma
• Neutral Citation: 2009 ABCA 372
• Subject Matter: COURTS,ADMINISTRATIVE LAW,TELECOMMUNICATIONS
• Citation: 2009 ABCA 372,(2009), 469 A.R. 14 (CA),469 AR 14,(2009), 469 AR 14 (CA),469 A.R. 14
• Date: 28 October 2009
• Court: Court of Appeal (Alberta)

MTS Allstream Inc. v. Telus Com. Inc. (2009), 469 A.R. 14 (CA);

      470 W.A.C. 14

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. NO.053

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

(0903-0069-AC; 2009 ABCA 372)

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

Alberta Court of Appeal

Paperny and Martin, JJ.A., and Sulyma, J.(ad hoc)

November 10, 2009.

Summary:

The Canadian Radio-Television and Telecommunications Commission 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 the Limitations Act (s. 3(1)(a)) did not entitle Telus to claim immunity from refunding charges that would be a further $1,066,541. Telus took the position that exclusive jurisdiction rested with the Commission and sought an order to stay or dismiss the application.

The Alberta Court of Queen's Bench, in a decision reported at 466 A.R. 296; 2009 ABQB 131, disagreed with Telus and dismissed its application. The chambers judge held that the court had concurrent jurisdiction with the Commission to determine the limitations issue and, further, that this was an appropriate case for the court to exercise that jurisdiction. Telus appealed.

The Alberta Court of Appeal allowed the appeal. The chambers judge failed to fully appreciate the breadth of the Commission's jurisdiction over telecommunications policy under the Telecommunications Act. She also over-simplified the nature of the dispute between the parties and failed to consider or appreciate the potential policy implications of that dispute. Those were errors of law. The court directed the parties to return to the Commission to have the direction in CRTC 2007-10 clarified.

Administrative Law - Topic 9003

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

Administrative Law - Topic 9015

Boards and tribunals - Jurisdiction - General - Interpretation of incidental legislation - [See fourth Administrative Law - Topic 9058 ].

Administrative Law - Topic 9058

Boards and tribunals - Jurisdiction of particular boards and tribunals - Canadian Radio-Television and Telecommunications Commission - An issue was whether the Canadian Radio-Television and Telecommunications Commission had exclusive jurisdiction over the dispute between the parties - The Alberta Court of Appeal stated that "[w]hether a tribunal like the Commission has exclusive jurisdiction to deal with a dispute is determined through a two step analysis. First, a review of the tribunal's governing legislation reveals the type of matters that the legislature intended should fall within the province of the tribunal and whether the legislature intended that the tribunal should have jurisdiction over those matters to the exclusion of other tribunals or the courts. The second step requires the court to define the 'essential character' of the dispute; is it a matter that falls within the exclusive jurisdiction of the tribunal, as revealed by the governing legislation, or is it a matter over which the court also has jurisdiction" - See paragraph 16.

Administrative Law - Topic 9058

Boards and tribunals - Jurisdiction of particular boards and tribunals - Canadian Radio-Television and Telecommunications Commission - The Alberta Court of Appeal considered the breadth of the jurisdiction of the Canadian Radio-Television and Telecommunications Commission over telecommunications, provided by its governing legislation, the Telecommunications Act - "[T]he Commission has been granted broad authority over telecommunications services in Canada, including matters related to the rates and tariffs applicable to such services. More specifically, subsection 32(g) provides that the Commission may 'determine any matter and make any order relating to the rates, tariffs or telecommunications services of Canadian carriers'. We agree with the conclusion of the chambers judge that this provision clearly grants the Commission jurisdiction over the matters at issue here, involving as they do the implementation of a Commission decision relating to the rates payable for telecommunications services" - In the end result, the particular dispute between the parties fell within the exclusive jurisdiction of the Commission, and was not something over which the courts had concurrent jurisdiction - See paragraphs 17 to 20.

Administrative Law - Topic 9058

Boards and tribunals - Jurisdiction of particular boards and tribunals - Canadian Radio-Television and Telecommunications Commission - An issue was whether the Canadian Radio-Television and Telecommunications Commission had exclusive jurisdiction over the dispute between the parties - The Alberta Court of Appeal stated that "[t]o the extent that a matter falls within the policy mandate of the Commission or requires the interpretation and application of Commission regulations, the Commission's jurisdiction over it has been held to be exclusive ... Courts have frequently confirmed the broad policy mandate and specialized expertise of the Commission and shown deference to decisions on matters falling within that mandate and expertise ... The same can be said for the Commission's jurisdiction over the supervision and regulation of telecommunications. On the other hand, where the dispute is, at its heart, a private law matter that will not require the courts to delve into policy or consider in detail the Commission's regulations, the matter may proceed before the court ... The court must then decide if it is appropriate for it to exercise its jurisdiction and hear the dispute or instead defer to the jurisdiction of the Commission" - See paragraphs 21 to 23.

Administrative Law - Topic 9058

Boards and tribunals - Jurisdiction of particular boards and tribunals - Canadian Radio-Television and Telecommunications Commission - Each of the parties was a telecommunications company - The applicant sought a declaration that the Limitations Act (Alberta) did not apply to limit payments owing to it by the respondent pursuant to decision 2007-10 of the Canadian Radio-Television and Telecommunications Commission - The respondent's position was that the limitations issue should go before the Commission, which, it said, had exclusive jurisdiction - The Alberta Court of Appeal did not agree with the chambers judge that the dispute involved only the interpretation of the Limitations Act and the application of that Act to a debt payable pursuant to contract - Such a conclusion oversimplified the matter and disregarded the regulatory history that led to 2007-10 - Nor was the dispute, at its heart, a contract dispute; it involved the interpretation and implementation of Commission decisions, of which 2007-10 was only the latest - Resolution required ascertaining what the Commission meant when it directed that the refunds were "subject to the applicable limitation periods provided by law" - To the extent that the interpretation of the decisions required the consideration of telecommunications policy, the dispute would come within the exclusive jurisdiction of the Commission - See paragraphs 24 to 30.

Administrative Law - Topic 9058

Boards and tribunals - Jurisdiction of particular boards and tribunals - Canadian Radio-Television and Telecommunications Commission - The applicant sought a declaration that the Limitations Act (Alberta) did not apply to limit payments owing to it by the respondent pursuant to a decision of the Canadian Radio-Television and Telecommunications Commission - The respondent took the position that the limitations issue should go before the Commission, which, it said, had exclusive jurisdiction to decide the issue - The chambers judge held that the court had concurrent jurisdiction and that this was an appropriate case to exercise that jurisdiction - The Alberta Court of Appeal held that the dispute came within the exclusive jurisdiction of the Commission - In any event, even if the court had concurrent jurisdiction, the court should defer to the jurisdiction of the Commission - "It would be inadvisable for the court to rule on what the Commission meant by the phrase 'applicable limitation periods provided by law' without the benefit of the Commission's views on the meaning of its own decision. Our decision in this regard is bolstered by the fact that the Telecommunications Act provides a comprehensive regime to address the issues between the parties ... [E]fficient and effective procedures are available to [the applicant] to bring this question before the Commission" - The court directed the parties to return to the Commission to have the direction in CRTC 2007-10 clarified - See paragraph 31.

Courts - Topic 2166

Jurisdiction - Limitations - Exercise of concurrent jurisdiction - [See fifth Administrative Law - Topic 9058 ].

Courts - Topic 5600

Provincial courts - General - Concurrent and conflicting jurisdiction - General - [See fifth Administrative Law - Topic 9058 ].

Courts - Topic 5686

Provincial courts - General - Jurisdiction or powers - Respecting federal boards or tribunals - [See fifth Administrative Law - Topic 9058 ].

Courts - Topic 8345

Provincial courts - Alberta - Court of Queen's Bench - Jurisdiction - [See first, third, and fifth Administrative Law - Topic 9058 ].

Telecommunications - Topic 3

General - Jurisdiction - [See second, third and fourth Administrative Law - Topic 9058 ].

Cases Noticed:

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, consd. [para. 11].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 14].

Commission des droits de la personne et des droits de la jeunesse (Que.) v. Quebec (Attorney General) et al., [2004] 2 S.C.R. 185; 321 N.R. 290; 2004 SCC 39, appld. [para. 16].

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. 22].

Mahar v. Rogers Cablesystems Ltd. (1995), 25 O.R.(3d) 690 (Gen. Div.), consd. [para. 22].

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

Société Radio-Canada v. Métromédia CMR Montréal Inc. et al. (1999), 254 N.R. 266 (F.C.A.), consd. [para. 22].

BC Tel v. Steeplejack Services (Canada) Ltd., [1997] B.C.T.C. Uned. 699 (S.C.), consd. [para. 27].

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. 28].

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. 28].

Groupe TVA Inc. v. Bell Expressvu Société en Commandité, [2004] Q.J. No. 7585 (S.C.), consd. [para. 28].

Rogers Cable TV Ltd. v. 373041 Ontario Ltd. (1996), 69 C.P.R.(3d) 85 (Ont. Gen. Div.), consd. [para. 28].

Statutes Noticed:

Telecommunications Act, S.C. 1993, c. 38, sect. 7 [para. 19]; sect. 24, sect. 25, sect. 27(3), sect. 29 [para. 17]; sect. 32 [para. 18].

Counsel:

K.P. Feehan, Q.C., and T. Williams, for the respondent;

A.Z. Breitman, for the appellant.

This appeal was heard on October 28, 2009, by Paperny and Martin, JJ.A., and Sulyma, J.(ad hoc), of the Alberta Court of Appeal, who delivered the following memorandum of judgment, filed at Edmonton, Alberta, on November 10, 2009.