Public Mobile Inc. v. Canada (Attorney General) et al., 2011 FCA 194

• Judge: Sexton, Dawson and Stratas, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 18, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FCA 194;(2011), 420 N.R. 50 (FCA)

Public Mobile Inc. v. Can. (A.G.) (2011), 420 N.R. 50 (FCA)

MLB headnote and full text

Temp. Cite: [2011] N.R. TBEd. JL.013

Globalive Wireless Management Corp. and Attorney General of Canada (appellants) v. Public Mobile Inc. and Telus Communications Company (respondents) and Alliance of Canadian Cinema, Television and Radio Artists, Communications, Energy and Paperworkers Union of Canada, and Friends of Canadian Broadcasting (intervenors)

(A-78-11, A-79-11; 2011 FCA 194)

Indexed As: Public Mobile Inc. v. Canada (Attorney General) et al.

Federal Court of Appeal

Sexton, Dawson and Stratas, JJ.A.

June 8, 2011.

Summary:

Public Mobile Inc. and Globalive Wireless Management Corp. were both successful in a 2008 auction of radio frequency spectrum by the Minister of Industry. That entitled them to provide wireless telecommunications services to the public if they complied with the provisions of the Telecommunications Act. The Canadian Radio-Television and Telecommunications Commission (CRTC) ruled that Globalive failed to meet the Canadian ownership and control requirements of s. 16(3) of the Act. Although the "legal control" requirements of ss. 16(3)(a) and (b) were met, a non-Canadian entity (Orascom) had "control in fact" (s. 16(3)(c)). The Governor-in-Council, acting on its own motion under s. 12(1), reviewed and reversed that decision by Order-in-Council. The Governor-in-Council determined that Globalive was not controlled in fact by Orascom and was, accordingly, eligible to operate as a telecommunications common carrier in Canada. Public Mobile applied under s. 18.1 of the Federal Courts Act for judicial review. Globalive submitted that Public Mobile lacked standing to seek judicial review.

The Federal Court, in a judgment reported (2011), 387 F.T.R. 1, held that Public Mobile had standing to seek judicial review. The court quashed the Order-in-Council because the Governor-in-Council exceeded its statutory mandate. The court stayed the judgment for 45 days to permit the pursuit of appeals or other available remedies. Both Globalive and the Attorney General of Canada appealed. The Alliance of Canadian Cinema, Television and Radio Artists, the Energy and Paperworkers Union of Canada, and the Friends of Canadian Broadcasting, all of whom had been granted intervenor status in the Federal Court, moved under rule 109 for intervenor status on the appeal.

The Federal Court of Appeal, per Stratas, J.A., in a decision reported 420 N.R. 46, allowed the motion and granted the three parties intervenor status on appeal, subject to terms to avoid duplication. The appeal proceeded.

The Federal Court of Appeal allowed the appeal and restored the Order-in Council.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - Public and Globalive were both successful in a 2008 auction of radio frequency spectrum by the Minister of Industry - That entitled them to provide wireless telecommunications services to the public if they complied with the provisions of the Telecommunications Act - The Canadian Radio-Television and Telecommunications Commission (CRTC) ruled that Globalive failed to meet the Canadian ownership and control requirements of s. 16(3) of the Act - The Governor-in-Council (GIC), acting under s. 12, reviewed and reversed that decision - Public applied under s. 18.1 of the Federal Courts Act for judicial review - An applications judge held that Public had a sufficient economic interest to warrant granting it standing - The court also held that Public had no effective alternative remedy - The Federal Court of Appeal held that while the applications judge was correct in granting Public standing, the court disagreed with his reasons on that issue - The Court of Appeal opined that Public was entitled to public interest standing - See paragraphs 53 to 58.

Courts - Topic 4071.4

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - Standing - [See Administrative Law - Topic 3347 ].

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing - [See Administrative Law - Topic 3347 ].

Telecommunications - Topic 1104

Telephones - Wireless telecommunications services - Licensing - Canadian ownership and control - Globalive was successful in an auction of radio frequency spectrum, which entitled it to provide wireless telecommunications services if it complied with the Telecommunications Act - The Canadian Radio-Television and Telecommunications Commission (CRTC) ruled that Globalive failed to meet the Canadian ownership and control requirements of s. 16(3)(c) of the Act, because "control in fact" rested with a non-Canadian entity - The Governor-in-Council (GIC), acting under s. 12 of the Act, reversed the CRTC decision by Order-in-Council - The GIC stated that "... the Act does not impose limits on foreign investment in telecommunication common carriers and should be interpreted in a way that ensures that access to foreign capital, technology and experience is encouraged in a manner that supports all of the Canadian telecommunication policy objectives" (recital 11) - On judicial review, the court set aside the Order-in-Council, holding that the judge erred in the interpretation of the Act suggested in recital 11 and in inserting a "previously unknown" policy objective into the Act and therefore considered an irrelevant factor - Globalive appealed - The Federal Court of Appeal allowed the appeal and restored the Order-in-Council - The court disagreed with the applications judge's conclusion that it was improper to consider policy objectives - Having concluded without regard to policy that Globalive was not controlled in fact by a non-Canadian, it was proper for the GIC to base its decision to vary the CRTC decision on policy considerations - By giving the variance power to a polycentric body such as the GIC, Parliament signalled its intent that the decision to vary could incorporate broader policy concerns - See paragraphs 36 to 49.

Telecommunications - Topic 6412

Commissions - Regulation - General - Variation or rescission of decisions - Powers of governor-in-council - [See Telecommunications - Topic 1104 ].

Telecommunications - Topic 6481

Commissions - Regulation - Appeals and judicial review - Standard of review - Globalive was successful in an auction of radio frequency spectrum, which entitled it to provide wireless telecommunications services if it complied with the Telecommunications Act - The Canadian Radio-Television and Telecommunications Commission (CRTC) ruled that Globalive failed to meet the Canadian ownership and control requirements of the Act, because it did not meet the "control in fact" test (s. 16(3)(c)) - The Governor-in-Council (GIC), acting under s. 12 of the Act, reversed the CRTC decision by Order-in-Council - On judicial review, the Order-in-Council was quashed - Globalive appealed, raising issues as to the GIC's application of the "control in fact test" and its references to telecommunications policy objectives - The Federal Court of Appeal discussed the standard of review where Orders-in-Council were involved, holding that the reasonableness standard applied here, where the issues raised were issues of mixed fact, policy and law - The court noted that the need for deference was underscored by the nature of the s. 12 process - See paragraphs 26 to 35.

Telecommunications - Topic 6484

Commissions - Regulation - Appeals and judicial review - Standing - [See Administrative Law - Topic 3347 ].

Cases Noticed:

CSP Foods et al. v. Canadian Transport Commission et al., [1979] 1 F.C. 3; 21 N.R. 361 (F.C.A.), refd to. [para. 26].

Davisville Investment Co. v. Toronto (City) (1977), 15 O.R.(2d) 553 (C.A.), refd to. [para. 26].

Telus Communications Co. v. Canadian Radio Television and Telecommunications Commission et al., [2010] N.R. Uned. 101; 2010 FCA 191, refd to. [para. 26].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 27].

Thorne's Hardware Ltd. v. R. - see Irving Oil Ltd., Canaport Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board.

Irving Oil Ltd., Canaport Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91, refd to. [para. 27].

Powell (C.B.) Ltd. v. Canada Border Services Agency (President) et al. (2010), 400 N.R. 367; 2010 FCA 61, refd to. [para. 28].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 30].

League for Human Rights of B'nai Brith Canada v. Odynsky - see League for Human Rights of B'nai Brith Canada v. Canada (Attorney General) et al.

League for Human Rights of B'nai Brith Canada v. Canada (Attorney General) et al. (2010), 409 N.R. 298; 2010 FCA 307, refd to. [para. 31].

Alliance Pipeline Ltd. v. Smith (2011), 412 N.R. 66; 328 D.L.R.(4th) 1; 2011 SCC 7, refd to. [para. 31].

Canada (Attorney General) v. Almon Equipment Ltd. (2010), 405 N.R. 91; 2010 FCA 193, refd to. [para. 32].

Mills v. Workplace Safety and Insurance Appeals Tribunal (Ont.) (2008), 237 O.A.C. 71; 2008 ONCA 436, refd to. [para. 32].

Telfer v. Canada Revenue Agency (2009), 386 N.R. 212; 2009 FCA 23, refd to. [para. 33].

Public Service Alliance of Canada v. Canadian Federal Pilots Association et al., [2010] 3 F.C.R. 219; 392 N.R. 128; 2009 FCA 223, refd to. [para. 34].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 54].

Hy and Zel's Inc. v. Ontario (Attorney General) - see Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General).

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; 160 N.R. 161; 67 O.A.C. 81, refd to. [para. 56].

Corporation of the Canadian Civil Liberties Association v. Canada (Attorney General) (1998), 111 O.A.C. 51; 40 O.R.(3d) 489 (C.A.), leave to appeal refused (1999), 237 N.R. 393; 124 O.A.C. 400 (S.C.C.), refd to. [para. 56].

Harris et al. v. Minister of National Revenue, [2000] 4 F.C. 37; 256 N.R. 221 (F.C.A.), refd to. [para. 56].

Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General) (2010), 294 B.C.A.C. 70; 498 W.A.C. 70; 10 B.C.L.R.(5th) 33; 2010 BCCA 439, refd to. [para. 56].

Canwest Global v. Canada (Attorney General) - see CanWest Mediaworks Inc. v. Canada (Minister of Health) et al.

CanWest Mediaworks Inc. v. Canada (Minister of Health) et al. (2008), 382 N.R. 365; 2008 FCA 207, refd to. [para. 57].

Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner) et al., [1990] 2 S.C.R. 367; 112 N.R. 269, refd to. [para. 58].

Canadian Egg Marketing Agency v. Richardson - see Canadian Egg Marketing Agency v. Pineview Poultry Products Ltd. et al.

Canadian Egg Marketing Agency v. Pineview Poultry Products Ltd. et al., [1998] 3 S.C.R. 157; 231 N.R. 201; 223 A.R. 201; 183 W.A.C. 201, refd to. [para. 58].

Morgentaler v. New Brunswick (2009), 344 N.B.R.(2d) 39; 884 A.P.R. 39; 2009 NBCA 26, refd to. [para. 58].

Statutes Noticed:

Telecommunications Act, S.C. 1993, c. 38, sect. 12(1) [para. 10]; sect. 16(1), sect. 16(3); sect. 16(4) [para. 9].

Counsel:

Thomas G. Heintzman, Malcolm M. Mercer and Anna Matas, for the appellant, Globalive Wireless Management Corp.;

Robert MacKinnon and Alexander Gay, for the appellant, Attorney General of Canada;

John B. Laskin and Michael H. Ryan, for the respondent, Public Mobile Inc.;

Kenneth Jull, Stephen R. Schmidt and Natalie Haras, for the respondent, Telus Communications Company;

Steven Shrybman, for the intervenors, Alliance of Canadian Cinema, Television and Radio Artists, Communication, Energy and Paperworkers of Canada, and Friends of Canadian Broadcasting.

Solicitors of Record:

McCarthy Tétrault LLP, Toronto, Ontario, for the appellant, Globalive Wireless Management Corp.;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant, Attorney General of Canada;

Torys LLP, Toronto, Ontario, for the respondent, Public Mobile Inc.;

Baker & McKenzie LLP, Toronto, Ontario, and TELUS Communications Company, Ottawa, Ontario, for the respondent, Telus Communications Company;

Sack Goldblatt Mitchell LLP, Ottawa, Ontario, for the intervenors, Alliance of Canadian Cinema, Television and Radio Artists, Communication, Energy and Paperworkers of Canada, and Friends of Canadian Broadcasting.

This appeal was heard in Ottawa, Ontario, on May 18, 2011, by Sexton, Dawson and Stratas, JJ.A., of the Federal Court of Appeal. Sexton, J.A., delivered the following reasons for judgment of the court on June 8, 2011.