Federal Court of Appeal Decision Promotes Fair Pricing and Broader Access to High-Speed Internet in Canada

On September 10, 2020, in Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, the Federal Court of Appeal of Canada (the Court) dismissed an appeal brought by large cable and telephone companies against the Canadian Radio-television and Telecommunications Commission’s (CRTC)’s Telecom Order CRTC 2019-288 (TO 2019-288) in relation to the rates these companies charge smaller companies for use of their networks.

In August 2019, the CRTC issued TO 2019-288 to set the final rates that large telephone companies may charge independent internet service providers (ISPs) for wholesale high-speed access services, and applied these rates retroactively to 2016 because it felt the previously determined rates  were too high. After TO 2019-288 was issued, the telephone companies appealed the order on the grounds that the CRTC:

• breached the principles of procedural fairness and engaged in arbitrary decision-making;
• failed to comply with a statutory reasons requirement;
• imposed an unconstitutional tax;
• failed to exercise its powers with a view to ensuring that the appellants’ rates are “just and reasonable”; and
• failed to exercise its powers with a view to implementing the Canadian telecommunications policy objectives set out in section 7 of the Telecommunications Act and the Cabinet Direction.

The Court was unconvinced by the appellants’ arguments, finding against the telephone companies on their first three points and dismissing their remaining points for being improper grounds of appeal. Justice Dawson of the Court held that high-speed internet is a resource vital to modern communication in the digital economy, and that the CRTC "may adopt any method or technique that it considers appropriate to determine whether a rate is just and reasonable".

In dismissing the appeal, the Court awarded costs to TakSavvy Solutions Inc. and members of Canadian Network Operators Consortium.

Summary By: Imtiaz Karamat