Rogers Communications Partnership v. Bell Aliant Regional Communications Limited Partnership, 2015 NBQB 205

Judge:Grant, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:May 11, 2015
Jurisdiction:New Brunswick
Citations:2015 NBQB 205;(2015), 443 N.B.R.(2d) 105 (TD)
 
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Rogers Com. v. Bell Aliant (2015), 443 N.B.R.(2d) 105 (TD);

    443 R.N.-B.(2e) 105; 1159 A.P.R. 105

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. DE.013

Renvoi temp.: [2015] N.B.R.(2d) TBEd. DE.013

Rogers Communications Partnership (plaintiff) v. Bell Aliant Regional Communications, Limited Partnership (defendant)

(S/C/290/08; 2015 NBQB 205; 2015 NBBR 205)

Indexed As: Rogers Communications Partnership v. Bell Aliant Regional Communications Limited Partnership

Répertorié: Rogers Communications Partnership v. Bell Aliant Regional Communications Limited Partnership

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Grant, J.

November 4, 2015.

Summary:

Résumé:

The plaintiff (Rogers) claimed damages of $2,000,000 for breach of contract (support structure agreement), plus a declaration that the defendant (Bell Aliant) was liable to indemnify Rogers for any amount it was liable to pay to any third party as a consequence of Bell Aliant's breach of contract.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed Rogers' action.

Contracts - Topic 6

General principles - General - What constitutes the contract - [See Contracts - Topic 266 ].

Contracts - Topic 262

Classification of contracts - Statutory contracts (incl. model documents) - What constitute - [See Contracts - Topic 266 ].

Contracts - Topic 266

Classification of contracts - Statutory contracts (incl. model documents) - Interpretation - Bell Aliant and Rogers (telecommunications carriers) entered into a five year support structure licence agreement (SSA) - Under that agreement, Bell Aliant granted Rogers permits allowing it to use certain support structures (i.e., poles) in New Brunswick, including poles Bell Aliant shared with NB Power - NB Power terminated its third party attachment sub-agreement with Bell Aliant, such that Bell Aliant no longer had the right to grant permits to use NB Power poles - Rogers sued Bell Aliant for breach of contract because it had to pay more for access to NB Power's poles - The New Brunswick Court of Queen's Bench, Trial Division, held that the SSA was not a contract but rather an approved model document governing a mandatory supply of service in accordance with a tariff (i.e., the National Support Structures Tariff (NST)) in a regulated industry that had to be interpreted in accordance with the principles of statutory interpretation - The court stated that when read in its entire context the SSA was not simply an agreement to supply a service for five years - Rather, it was a mandatory agreement that required Bell Aliant to supply a specific service to Rogers on support structures as defined in the NST at the rate set out in the NST for a five year period - Once Bell Aliant no longer had the right to grant permits to the NB Power poles the rate set out in the tariff ceased to apply as did the CRTC's authority to mandate that it supply this service to Rogers in the first place - Further, those were essential elements of the SSA and once they ceased to exist the SSA and the NST no longer had any legal effect in respect to the NB Power poles - The court opined that even if the SSA was a contract, the doctrine of frustration applied - Rogers' claim was dismissed - See paragraphs 1 to 34.

Contracts - Topic 3826

Performance or breach - Frustration or impossibility - Application of doctrine - [See Contracts - Topic 266 ].

Telecommunications - Topic 870

Telephones - Duty of telephone company - Duty to supply services to competitors - [See Contracts - Topic 266 ].

Cases Noticed:

Halifax Harbour Services Ltd. v. Maritime Telegraph & Telephone Co. Ltd. (1980), 40 N.S.R.(2d) 448; 73 A.P.R. 448; 115 D.L.R.(3d) 335, refd to. [para. 17].

Western Union Telegraph Co. v. Esteve Bros. & Co. (1921), 256 U.S. 566 (U.S.S.C.), refd to. [para. 18].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 22].

Davidson et al. v. Craig Manufacturing Ltd. (2009), 345 N.B.R.(2d) 359; 889 A.P.R. 359; 2009 NBCA 42, refd to. [para. 29].

Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 2 S.C.R. 943; 277 N.R. 1; 153 O.A.C. 341; 2001 SCC 58, refd to. [para. 30].

Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711; 77 N.R. 161; 21 O.A.C. 321, refd to. [para. 40].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 41].

Parlee v. McFarlane (1999), 210 N.B.R.(2d) 284; 536 A.P.R. 284 (C.A.), refd to. [para. 43].

Counsel:

Avocats:

Tim Pinos, for Rogers Communications Partnership;

Daniel M. Campbell, Q.C., and Rebecca M. Atkinson, for Bell Aliant Regional Communications, Limited Partnership.

This matter was heard in Saint John, N.B., on May 11, 2015, before Grant, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision on November 4, 2015.

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