Canadian Federal Court of Appeal Overturns Public Mobile Decision

In a unanimous decision, a three-judge panel of the Federal Court of Appeal has overturned a ruling of the Federal Court recently reported by E-TIPS® (“Federal Court: Canadian Cabinet is Bound by Telecommunications Statute in its Decisions” Vol 9, No 15, February 9th, 2011). The case, as argued before Justice Hughes of the Federal Court, had been an application by Public Mobile Inc for judicial review of a federal Cabinet decision overturning a decision of the Canadian Radio-television and Telecommunications Commission (CRTC) relating to permitted levels of foreign ownership in the telecom sector, and Justice Hughes had allowed the application, thereby quashing the decision of the Cabinet. At issue was the Cabinet’s decision to overrule the CRTC and to grant a wireless telecom licence to a new entrant, Globalive Wireless Management Corp (Globalive), a competitor of Public Mobile. Justice Hughes had ruled that, in coming to its decision, the Cabinet used criteria not found in the governing statute and had also failed to consider some criteria contained in the statute. In his reasons for judgment allowing the appeal and restoring the Cabinet decision, Justice Sexton noted the complex interplay of procedure and policy considerations that exist between Parliament’s overall intentions expressed in the Telecommunications Act, and the powers granted to both the CRTC and to Cabinet to make decisions in specific cases before these two bodies. In effect, the Federal Court of Appeal has confirmed that the Cabinet may take into account policy considerations, for example in determining whether a company is controlled in fact by a non-Canadian, provided that in doing so it operates within the general policy framework expressed in the statute. Although the applicant, Public Mobile Inc, has indicated it will seek leave to appeal to the Supreme Court of Canada, many observers think that the case raises issues that are of insufficiently wide application to expect to be granted. For the 35-page reasons for judgment in Globalive Wireless Management Corp and A-G of Canada v Public Mobile Inc and Telus 2011 FCA 194, follow this link: http://www.canadiancommunicationslaw.com/A-78-11%20and%20A-79-11%20Reasons%20(2).pdf Summary by: Richard Potter