FEDERAL COURT OF APPEAL - CIPPIC · federal court of appeal b e t w e e n: bell canada, bell...

Court File No. A-337-13

FEDERAL COURT OF APPEAL

B E T W E E N:

BELL CANADA, BELL MOBILITY INC., MTS INC., NORTHERNTEL,LIMITED PARTNERSHIP, ROGERS COMMUNICATIONS PARTNERSHIP,SASKATCHEWAN TELECOMMUNICATIONS, TÉLÉBEC, SOCIÉTÉ EN

COMMANDITE and TELUS COMMUNICATIONS COMPANY

Appellants- and -

AMTELECOM LIMITED PARTNERSHIP, BRAGG COMMUNICATIONS INC., DATA &AUDIO-VISUAL ENTERPRISES WIRELESS INC., GLOBALIVE WIRELESS

MANAGEMENT CORP., HAY COMMUNICATIONS CO-OPERATIVE LIMITED, HURONTELECOMMUNICATIONS CO-OPERATIVE LIMITED, MORNINGTON

COMMUNICATIONS CO-OPERATIVE LIMITED, NEXICOM MOBILITY INC.,NORTHWESTEL INC., PEOPLE’S TEL LIMITED PARTNERSHIP, PUBLIC MOBILE INC.,

QUADRO COMMUNICATIONS CO-OPERATIVE INC., QUEBECOR MEDIA INC.,SOGETEL MOBILITÉ INC., THUNDER BAY TELEPHONE, VAXINATION

INFORMATIQUE, CONSUMERS’ COUNCIL OF CANADA, DIVERSITYCANADAFOUNDATION, MEDIA ACCESS CANADA, MOUVEMENT PERSONNE D’ABORD DU

QUÉBEC, PUBLIC INTEREST ADVOCACY CENTRE, CONSUMERS’ ASSOCIATION OFCANADA, COUNCIL OF SENIOR CITIZENS’ ORGANIZATIONS OF BRITISH

COLUMBIA, OPENMEDIA.CA, SERVICE DE PROTECTION ET D’INFORMATION DUCONSOMMATEUR, UNION DES CONSOMMATEURS, CANADIAN WIRELESS

TELECOMMUNICATIONS ASSOCIATION, COMMISSIONER FOR COMPLAINTS FORTELECOMMUNICATIONS SERVICES INC., COMPETITION BUREAU OF CANADA,

GLENN THIBEAULT, HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA,GOVERNMENT OF MANITOBA, GOVERNMENT OF THE NORTHWEST TERRITORIES,

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, ATTORNEY GENERAL OFQUEBEC, GOVERNMENT OF YUKON, OFFICE OF THE PRIVACY COMMISSIONER OFCANADA, CATHERINE MIDDLETON, TAMARA SHEPHERD, LESLIE REGAN SHADE,KIM SAWCHUK, BARBARA CROW, SHAW TELECOM INC., TERRY DUNCAN, GLENN

FULLERTON, TANA GUINDEBA, NASIR KHAN, MICHAEL LANCIONE, ALLANMUNRO, FREDERICK A. NAKOS, RAINER SCHOENEN and DANIEL SOKOLOV

Respondents

MOTION RECORD OF THE APPELLANTS(Motion to strike out the CRTC’s memorandum of fact and law and for leave to submit a

reply memorandum of fact and law)

Torys LLP79 Wellington St. W., Suite 3000Box 270, TD CentreToronto, Ontario M5K 1N2

John B. LaskinTel: 416.865.7317 / Fax: [email protected]

Myriam SeersTel: 416.865.7535 / Fax: [email protected]

Lawyers for the Appellants

TABLE OF CONTENTS

Tab Page No.

1. Notice of Motion dated April 1, 2014 1-6

2. Written Representations of the Appellants dated April 1, 2014 7-26

3. Draft Order 27-28



B E T W E E N:



Appellants- and -












Respondents

NOTICE OF MOTION(Motion to strike out the CRTC’s memorandum of fact and law and for leave to submit a


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TAKE NOTICE THAT the appellants will make a motion in writing to the Court under

Rules 359 and 369 of the Federal Courts Rules.

THE MOTION IS FOR an order

(a) striking out the memorandum of fact and law submitted by the Canadian Radio-

television and Telecommunications Commission (“CRTC”) in this appeal,

(b) directing the CRTC to file a replacement memorandum of fact and law confined

to the content of paragraphs 8 to 17, 55 and 69 to 73 of the memorandum that has

been struck out, within 10 days of the date of this order;

(c) granting the appellants leave to serve and file a 20-page reply memorandum of

fact and law within 20 days of the order; and

(d) granting the appellants their costs of this motion.

THE GROUNDS FOR THE MOTION ARE

(a) with respect to the striking out of the CRTC’s memorandum of fact and law, that

the memorandum goes beyond the proper scope of a Tribunal’s participation in an

appeal from its own decision;

(b) with respect to the request for leave to serve and file a reply memorandum of fact

and law, that:

(i) the central issue in this appeal is whether the CRTC exceeded its

jurisdiction and erred in law in purporting to give retrospective effect to

the Wireless Code that it promulgated in the decision under appeal;

(ii) in the decision under appeal, the CRTC gave no reasons for applying the

Wireless Code retrospectively;

(iii) only limited submissions were made to the CRTC by respondents to this

appeal or others as to the basis on which the Wireless Code might be given

retrospective effect;

(iv) the appellants addressed those submissions in their memorandum of fact

and law;

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(vi) unless the appellants are granted leave to serve and file a reply

memorandum, the appellants will have no opportunity to make written

submissions addressing these additional grounds; and

(vii) it would assist the Court and the parties to have the benefit of the

appellants' written submissions on these grounds before the hearing of the

appeal; and

(c) Rules 3, 359 and 369 of the Federal Courts Rules.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the

motion:

(a) the appeal book;

(b) the memorandum of fact and law of the appellants in the appeal;

(c) the memorandum of fact and law of the CRTC in the appeal;

(d) the memorandum of fact and law of PIAC/CAC/COSCO in the appeal;

(e) the memorandum of fact and law of Union des consommateurs in the appeal;

(f) the memorandum of fact and law of OpenMedia.ca in the appeal; and

(g) such further evidence as may be advised and the Court may permit.

-r-m Is l_L? •fre-T. IrS1-- Torys LL 79 Wellington St. W., Suite 3000 Box 270, TD Centre Toronto, Ontario M5K 1N2 Fax: 416.865.7380

John B. Laskin Tel: 416.865.7317 [email protected]

Myriam Seers Tel: 416.865.7535 [email protected]


April 1, 2014

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(vi) unless the appellants are granted leave to serve and file a reply

memorandum, the appellants will have no opportunity to make written

submissions addressing these additional grounds; and

(vii) it would assist the Court and the parties to have the benefit of the

appellants' written submissions on these grounds before the hearing of the

appeal; and

(c) Rules 3, 359 and 369 of the Federal Courts Rules.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the

motion:

(a) the appeal book;

(b) the memorandum of fact and law of the appellants in the appeal;

(c) the memorandum of fact and law of the CRTC in the appeal;

(d) the memorandum of fact and law of PIAC/CAC/COSCO in the appeal;

(e) the memorandum of fact and law of Union des consommateurs in the appeal;

(f) the memorandum of fact and law of OpenMedia.ca in the appeal; and

(g) such further evidence as may be advised and the Court may permit.

-Pi gr La 14-ei- est_Torys LL 79 Wellington St. W., Suite 3000 Box 270, TD Centre Toronto, Ontario M5K 1N2 Fax: 416.865.7380

John B. Laskin Tel: 416.865.7317 [email protected]

Myriam Seers Tel: 416.865.7535 [email protected]


April 1, 2014

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April 1, 2014 Torys LLP79 Wellington St. W., Suite 3000Box 270, TD CentreToronto, Ontario M5K 1N2Fax: 416.865.7380

John B. LaskinTel: [email protected]

Myriam SeersTel: [email protected]


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TO: The AdministratorFederal Court of Appeal180 Queen Street WestSuite 200Toronto, Ontario M5V 3L6

AND TO: Canadian Radio-television and Telecommunications CommissionLegal Sector1 Promenade du PortageGatineau, Quebec J8X 4B1

Christianne LaiznerTel: 819.953.3990Fax: 819.953.0589

Solicitors for the Canadian Radio-television and Telecommunications Commission

AND TO: Public Interest Advocacy CentreOne Nicholas StreetSuite 1204Ottawa, Ontario K1N 7B7

John LawfordTel: 613.562.4002, Ext. 25Fax: 613.562.0007

Solicitors for the Respondents, Public Interest Advocacy Centre,Consumers' Association of Canada and Council of Senior Citizens'Organization of British Columbia

AND TO: Union des consommateurs6226, rue St-HubertMontreal, Quebec H2S 2M2

Marcel BoucherTel: 514.521.6820Fax: 514.521.0736

Solicitor for the Respondent, Union des consommateurs

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AND TO: Samuelson-Glushko Canadian Internet Policy &Public Interest Clinic (CIPPIC)University of Ottawa, Faculty of Law, CML57 Louis Pasteur StreetOttawa, Ontario K1N 6N5

Tamir IsraelTel: 613.562.5800, Ext. 2914Fax: 613.562.5417

Solicitor for the Respondent, Open Media Engagement Network(OpenMedia.ca)

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B E T W E E N:



Appellants- and -












Respondents

WRITTEN REPRESENTATIONS OF THE APPELLANTS(Motion to strike out the CRTC’s memorandum of fact and law and for leave to submit a


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PART I – OVERVIEW

1. In this motion, the appellants request an order striking out the Canadian Radio-television

and Telecommunications Commission’s memorandum of fact and law in this appeal and

directing the CRTC to submit a new memorandum that respects the limits of a tribunal’s

participation in an appeal from its own decision. They also seek leave to submit a reply

memorandum in response to the new arguments made by the other respondents and by the

CRTC, to the extent that its memorandum is not struck out.

2. The CRTC’s memorandum goes well beyond the proper, limited scope of a tribunal’s

participation in an appeal from its own decision. The CRTC has attempted to supplement its

reasons, has made adversarial submissions that defend the merits of the decision, and has put

forward factual information that is not relevant to the only issue on the appeal – whether the

CRTC has jurisdiction to apply, or erred in law in applying, the Wireless Code that it

promulgated to wireless services contracts entered into before the Wireless Code came into

force. The CRTC’s memorandum therefore violates the principles of finality, impartiality,

relevance and utility that govern the proper scope of a tribunal’s participation in an appeal, and

should therefore be struck out.

3. The appellants seek leave to serve and file a reply memorandum because they would

otherwise have no opportunity to make written submissions addressing the many new arguments

that the respondents now make in support of the decision under appeal. In that decision, the

CRTC gave no reasons for concluding that it had jurisdiction, and was entitled in law, to give the

Wireless Code retrospective application and interfere with vested rights. Other respondents to

this appeal made only limited submissions to the CRTC on this point. The appellants addressed

all of those submissions in their memorandum of fact and law.

4. However, the respondents, including the CRTC, have now put forward, in their

memoranda of fact and law, a series of new, additional arguments purporting to justify the

retrospective application of the Wireless Code. Because those arguments were not made before

the CRTC, and the appellants had no notice of those arguments, the appellants could not address

them in their memorandum. Both the Court and the parties would benefit from having the

appellants’ written submissions in response to those arguments before the hearing of this appeal.

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PART II – FACTS

The Wireless Code decision

5. The CRTC’s Wireless Code decision establishes the Wireless Code, a set of mandatory

requirements applicable to all wireless services contracts entered into between wireless service

providers and individuals or small businesses.1 The Wireless Code imposes requirements dealing

with early cancellation fees, data roaming and overage charges, mobile device unlocking,

security deposits and device disconnection, among other matters.2

6. The Wireless Code decision provides that the Code came into force on 2 December 2013.

However, it also states:

In addition, in order to ensure that all consumers are covered bythe Wireless Code within a reasonable time frame, the WirelessCode should apply to all contracts, no matter when they are enteredinto, by no later than 3 June 2015.3

7. In the appeal in which they bring this motion, the appellants request an order striking out

that language from the Wireless Code decision. The appellants submit that, by applying the

Wireless Code to wireless service contracts entered into before the Wireless Code came into

force, the CRTC interfered with the appellants’ vested rights under those contracts to recover

payment for unpaid device subsidies by way of early cancellation fees and engaged in

retrospective rule-making, and therefore exceeded its jurisdiction under the Telecommunications

Act (the “Act”) and erred in law.4

The appellants’ position before the CRTC

8. During the Wireless Code proceeding, the appellants took the position that the CRTC had

no jurisdiction to make the Wireless Code applicable to contracts entered into before the

Wireless Code came into force.5 In support of this position, the appellant SaskTel submitted a

1 Wireless Code decision, Appeal Book, Volume 1, Tab 2.2 Wireless Code decision, Appeal Book, Volume 1, Tab 2.3 Wireless Code decision, para. 369, Appeal Book, Volume 1, Tab 2.4 Notice of Appeal, Appeal Book, Volume 1, Tab 1.5 Opening Statement of Bell, paras. 50-51, Appeal Book, Volume 4, Tab 38; Final Written Comments of Bell, paras.77-80, Appeal Book, Volume 5, Tab 51; Intervention of Rogers at para. 24, Appeal Book, Volume 2, Tab 16; Final

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legal opinion that concluded that the CRTC lacked jurisdiction to engage in retrospective rule-

making, and that applying the Wireless Code to pre-existing contracts would exceed the CRTC’s

jurisdiction under the Act.6

The respondents’ position before the CRTC

9. The only respondent to raise a substantive objection to the appellants’ position was

Public Interest Advocacy Centre (PIAC/CAC/COSCO), which submitted that the CRTC has

jurisdiction to impose conditions that have incidental rate effects if the purpose is to achieve a

social justice policy.7

10. The respondent Union des consommateurs acknowledged that retroactive application of

the early cancellation fee provisions of the Wireless Code would amount to a “puzzle.”8

OpenMedia.ca stated that “elements” of the Code should apply to pre-existing contracts, but did

not specify whether this included the provisions of the Code governing early cancellation fees.

Neither of them submitted that the CRTC had jurisdiction to impose the Wireless Code on pre-

existing contracts that provide for early cancellation fees.

The CRTC’s decision on the application of the Wireless Code to pre-existing contracts

11. Despite the submissions made on this issue before the CRTC, the Wireless Code decision

contains no analysis whatsoever of the CRTC’s jurisdiction to apply the Wireless Code to pre-

existing contracts.

12. In support of its decision to apply the Wireless Code to all wireless service contracts as of

3 June 2015, the CRTC said the following. None of what it said amounted to an analysis of its

jurisdiction under the Act, or entitlement in law, to apply the Wireless Code to pre-existing

contracts.

Written Comments of MTS, para. 35, Appeal Book, Volume 5, Tab 52; Intervention of SaskTel, para. 26, AppealBook, Volume 2, Tab 18; Final Written Comments of SaskTel at paras. 18-24, Appeal Book, Volume 5, Tab 55;Intervention of TELUS, para. 62, Appeal Book, Volume 2, Tab 19; Written Reply Comments of TELUS, para. 50,Appeal Book, Volume 6, Tab 63; Transcript, Vol. 2 at 2744-56, 3625-28, Appeal Book, Volume 4, Tab 35;Transcript, Vol. 3 at 6991, Appeal Book, Volume 4, Tab 37.6 Final Written Comments of SaskTel, Appeal Book, Volume 5, Tab 55.7 Final Written Comments of PIAC/CAC/COSCO, para. 50, Appeal Book, Volume 5, Tab 54.8 Final Written Comments of Union des consommateurs, p. 26, Appeal Book, Volume 6, Tab 57 [translation].

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365. The Commission notes that if the Wireless Code only appliesto contracts entered into or amended on or after the implementationdate, many Canadians with pre-existing wireless service contractswill not fully benefit from the Wireless Code until these existingcontracts expire or are amended. The Commission considers that itis essential to ensure that the transition period for theimplementation of the Wireless Code is as short as possible inorder to ensure that all Canadians benefit from the Wireless Codein a reasonable period. The Commission notes that unreasonabledelays in the implementation of the Code for some customerscould be considered undue discrimination.

366. However, the Commission also considers that there are validpractical reasons why immediate application of the Code to allexisting contracts may not be proportionate, in that the costs andresources necessary to immediately implement the Code wouldoutweigh the relative benefit to consumers.

367. Based on the evidence filed on the record of the proceeding,the Commission notes that if the Code applied to new andamended contracts only, approximately half of all wireless servicecustomers would be covered by the Code within one year of itsimplementation, including customers on indeterminate contracts,who would be covered immediately, and customers on fixed-termcontracts who would renew, amend, or otherwise enter into a newcontract within that period of time. The Commission also notesthat the evidence on the record of the proceeding is clear that alarge proportion of consumers amend or extend their contractsbefore the end of the contract term, and that, therefore, theWireless Code would apply to most contracts in less than 2 years.At this point, then, the Wireless Code should apply to the vastmajority of contracts and the burden on the WSPs to amend theremaining contracts would be substantially reduced.9

13. The CRTC did not address any of the appellants’ arguments or the legal opinion

submitted to it. Nor did it address the limited submissions made by PIAC/CAC/COSCO

concerning the CRTC’s jurisdiction.

9 Wireless Code decision, paras. 365-67, Appeal Book, Volume 1, Tab 2.

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The appellants had no prior notice of the CRTC’s reasons or of the respondents’arguments

14. The CRTC did not oppose the granting of leave to appeal; nor did any other party. The

appellants therefore had no notice before submitting their memorandum of fact and law in this

appeal of any reasons that the CRTC might put forward in this appeal to justify concluding that it

had jurisdiction, and was entitled in law, to apply the Wireless Code to pre-existing contracts.

15. The appellants also had no prior notice of the arguments that the respondents would make

in support of the CRTC’s jurisdiction, beyond the very limited submissions put forward by

PIAC/CAC/COSCO.

The appellants’ memorandum of fact and law

16. In their memorandum of fact and law on this appeal, the appellants submit that the CRTC

exceeded its jurisdiction and erred in law by purporting to apply the Wireless Code to pre-

existing contracts. They make the following arguments:

(a) the CRTC’s decision to apply the Wireless Code to pre-existing contracts is

reviewable on a correctness standard;10

(b) the Wireless Code decision interferes with the appellants’ vested rights and

applies retrospectively by overriding the terms of those contracts giving the

appellants the right to be repaid for unpaid device subsidies through early

cancellation fees;11

(c) the CRTC has no jurisdiction to impair the appellants’ pre-existing contractual

rights, because (1) subordinate rule-makers have no jurisdiction to interfere with

vested rights or to engage in retrospective rule-making unless their enabling

statute gives them that power either expressly or by necessary implication,12 and

(2) nothing in the Act gives the CRTC that power.13

10 CRTC’s memorandum of fact and law, paras. 44-47.11 CRTC’s memorandum of fact and law, paras. 48-52.12 CRTC’s memorandum of fact and law, paras. 53-57.13 CRTC’s memorandum of fact and law, paras. 58-66.

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17. In addressing the potential sources of jurisdiction in the Act, the appellants refer to

section 24 of the Act, which the CRTC cited in its decision (although not with respect to its

jurisdiction).14

18. The appellants also address the position that PIAC/CAC/COSCO took before the CRTC

that the CRTC has jurisdiction to engage in retrospective rule-making if its purpose is to achieve

a social justice policy objective under section 7 of the Act.15

The CRTC’s memorandum of fact and law

19. The CRTC has submitted a 29-page memorandum of fact and law in the appeal. The

memorandum begins with an overview in which the CRTC expressly defends its decision. On

the first page of its memorandum, the CRTC submits that “the imposition of the Wireless Code

as a condition of providing wireless services does not interfere with any ‘vested right’ and,

hence, there is no retrospective rule-making.”16 The CRTC then argues, in the alternative, that

“to the extent that the CRTC did affect vested rights or applied its rules retrospectively, it did so

in the proper exercise of its powers under the [Act],”17 and that the final implementation date of

3 June 2015 for the Wireless Code is “a proper exercise of the CRTC’s powers under the Act, as

this date reflects a polycentric finding by the CRTC which provides certainty to all parties and

balances the interests of both customers and wireless carriers.”18

20. In the same vein, the CRTC’s legal argument vigorously defends the CRTC’s decision.

Indeed, the heading under which its legal argument is set out is entitled “The CRTC Properly

Exercised Its Jurisdiction.”19 In its legal argument, the CRTC first argues in considerable detail

that it “did not interfere with vested rights”20 and that the application of the Wireless Code to

pre-existing contracts “is prospective and does not affect a right that vested before that date.”21 It

14 CRTC’s memorandum of fact and law, paras. 58-59.15 CRTC’s memorandum of fact and law, para. 64.16 CRTC’s memorandum of fact and law, para. 4.17 CRTC’s memorandum of fact and law, para. 5.18 CRTC’s memorandum of fact and law, para. 7.19 CRTC’s memorandum of fact and law, para. 21.20 CRTC’s memorandum of fact and law, paras. 76-85.21 CRTC’s memorandum of fact and law, para. 85.

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then argues that it “has properly exercised its statutory powers within its legislative

framework.”22

21. Moreover, the CRTC purports to supplement its Wireless Code decision by setting out

detailed rationales as to why, in its view, the Act gives it the power to interfere with vested rights

and to engage in retrospective rule-making. The CRTC submits that sections 7, 24, 27 and 47 of

the Act give it that power by necessary implication.23 It then goes so far as to state that in its

decision it made an “implicit finding of undue preference.” The Wireless Code decision sets out

none of these rationales, or any rationale at all, for concluding that the CRTC had jurisdiction,

and was entitled in law, to apply the Wireless Code to pre-existing contracts.

22. In the “facts” section of its memorandum, the CRTC:

(a) describes the CRTC’s regulatory powers over telecommunications and the

purposes of the Act;24

(b) describes in detail the history of the CRTC’s forbearance from regulating wireless

services before it adopted the Wireless Code;25

(c) sets out the positions that various parties took before the CRTC with respect to

various substantive terms of the proposed Wireless Code;26

(d) describes the CRTC’s findings of fact and determinations that led to its decision

to adopt the various substantive terms of the Wireless Code;27

(e) describes the position of parties in the Wireless Code proceeding as to when the

Wireless Code should come into force;28and

(f) sets out the CRTC’s findings of fact and determinations as to when the Wireless

Code should come into force (without addressing the CRTC’s jurisdiction).29

22 CRTC’s memorandum of fact and law, paras. 86-98.23 CRTC’s memorandum of fact and law, paras. 86-98.24 CRTC’s memorandum of fact and law, paras. 8-17.25 CRTC’s memorandum of fact and law, paras. 18-21.26 CRTC’s memorandum of fact and law, paras. 33-44.27 CRTC’s memorandum of fact and law, paras. 45-51.28 CRTC’s memorandum of fact and law, paras. 52-60.

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23. With the exception of the section that describes the CRTC’s regulatory powers under the

Act30 and one paragraph that describes SaskTel’s and PIAC’s legal arguments with respect to the

CRTC’s jurisdiction,31 the facts set out by the CRTC relate to the merits of the CRTC’s decision

to fix 3 June 2015 as the Wireless Code’s implementation date for all contracts. These facts are

not relevant to the issue on this appeal – whether the CRTC exceeded its jurisdiction and erred in

law by applying the Wireless Code to pre-existing contracts.

The other respondents’ memoranda of fact and law

24. The other respondents’ memoranda of fact and law also raise a number of new arguments

in defence of the CRTC’s jurisdiction of which the appellants had no prior notice, some of which

overlap with the CRTC’s arguments. These include arguments that:

(a) the Wireless Code decision does not interfere with vested rights or have

retrospective application because rights to early cancellation fees under pre-

existing wireless services contracts did not become vested until after the Wireless

Code decision came into force;32

(b) the Wireless Code decision does not have a retroactive effect;33

(c) the principle against retrospective application of rules does not apply because the

purpose of the Wireless Code decision is to protect the public;34

(d) the principle against retrospective application of rules does not apply because the

Act creates a comprehensive regulatory scheme;35

(e) section 24 of the Act allows the CRTC to retrospectively impose conditions and

interfere with vested rights;36

29 CRTC’s memorandum of fact and law, paras. 61-65.30 CRTC’s memorandum of fact and law, paras. 8-17.31 CRTC’s memorandum of fact and law, para. 53.32 OpenMedia.ca’s memorandum of fact and law, paras. 20, 40-51.33 OpenMedia.ca’s memorandum of fact and law, paras. 15-23.34 OpenMedia.ca’s memorandum of fact and law, paras. 26-32.35 OpenMedia.ca’s memorandum of fact and law, paras. 33-39.36 OpenMedia.ca’s memorandum of fact and law, para. 52.

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(f) sections 7, 47 and 32 of the Act give the CRTC jurisdiction to retrospectively

impose conditions and interfere with vested rights;37

(g) any loss to the appellants resulting from the application of the Wireless Code to

pre-existing contracts is incidental to the essential purpose of the Wireless Code;38

(h) the CRTC should be presumed to have reached the right decision on

jurisdiction;39 and

(i) the CRTC’s jurisdiction to apply the Wireless Code to pre-existing contracts

flows from the importance of ensuring that all consumers are covered by the Code

within a reasonable period of time.40

The appellants’ proposed reply

25. The appellants propose to file a limited reply responding to the CRTC’s arguments (to the

extent they are not struck out) and to the new arguments made by the other respondents. The

appellants’ proposed reply would be limited to the matters on which the appellants have not yet

taken a position in their memorandum of fact and law.

PART III – ISSUES

26. The issues on this motion are:

(a) whether parts of the CRTC’s memorandum of fact and law should be struck out as

going beyond the proper scope of a tribunal’s participation in an appeal from its

own decision; and

(b) whether the Court should grant leave to the appellants to submit a memorandum

of fact and law in reply to the new arguments raised by the respondents.

37 OpenMedia.ca’s memorandum of fact and law, para. 52.38 PIAC/CAC/COSCO’s memorandum of fact and law, para. 23.39 PIAC/CAC/COSCO’s memorandum of fact and law, para. 27.40 Union des consommateurs’ memorandum of fact and law, paras. 27-30.

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PART IV – LAW AND ARGUMENT

The proper scope of a tribunal’s participation in an appeal from its decision

27. As the CRTC itself recognizes in its memorandum,41 a tribunal’s right to participate in an

appeal from its decision is strictly circumscribed. This is the case even where, as here, the

tribunal has the right to be heard in the appeal.42

28. A tribunal’s submissions are limited by the principles of finality and impartiality. This

has two consequences. First, the tribunal cannot use the appeal as an opportunity to supplement

its reasons. Second, the tribunal cannot make submissions that defend its decision or go to the

merits of the appeal. The tribunal’s submissions must also be relevant to the issues in the appeal

and useful to the Court.

A tribunal cannot supplement its reasons

29. An appeal is not an opportunity for a tribunal to supplement its reasons for decision. To

hold otherwise would violate the principle of finality. In Quadrini, this Court said with respect to

the principle:

Once a tribunal has decided the issues before it and has providedreasons for decision, absent a power to vary its decision or rehearthe matter, it has spoken finally on the matter and its job is done[…]. A judicial review is not an opportunity for the tribunal toamend, vary, qualify or supplement its reasons. Accordingly,attempts by the tribunal to speak further by making submissions inthe judicial review have to be carefully regulated. 43

30. In its submissions, the tribunal should “first and foremost, enlighten the Court objectively

and completely on the facts stated in the impugned decision and on the [tribunal’s] reasoning,

without seeking justification that was not provided by the [tribunal] itself in the impugned

41 CRTC’s memorandum of fact and law, para. 69.42 Telecommunications Act, s. 64(6); Northwestern Utilities v. Edmonton (City), [1979] S.C.R. 684 at para. 52,Appellants’ Brief of Authorities (“BOA”), Tab 8; Li v. Canada (Minister of Citizenship & Immigration), 2004 FCA267 at para. 5, leave to appeal to SCC refused, [2005] S.C.C.A. No. 119, BOA, Tab 6; Mikail v. Canada (AttorneyGeneral), 2011 FC 674, BOA, Tab 7.43 Quadrini v. Canada (Revenue Agency), 2010 FCA 246 at para. 16, BOA, Tab 9.

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decision.”44 The tribunal cannot attempt to “bootstrap” its decision after the fact by submitting

additional reasons after its decision has been challenged.45

A tribunal cannot argue the merits or defend its decision

31. Because of the critical importance of maintaining public confidence in the fairness of the

justice system, “the appearance of [a decision-making body] as an impartial tribunal can never be

discredited.”46 Maintaining the impartiality and appearance of impartiality of a tribunal whose

decision is under review is a guiding factor for the Court in deciding on the proper scope of a

tribunal’s participation in an appeal from its own decision.47

32. To maintain both impartiality and the appearance of impartiality, a tribunal’s submissions

must not “descend too far, too intensely, or too aggressively into the merits of the matter before

the tribunal,” because “such submissions by the tribunal can erode the tribunal’s reputation for

evenhandedness and decrease public confidence in the fairness of our system of administrative

justice.”48

33. The tribunal must not engage in the adversarial aspects of the appeal and must not engage

questions that are at the heart of the appeal.49 It may not defend its decision, because to do so

would be incompatible with its impartiality.50

34. While tribunals are permitted to make submissions with respect to their jurisdiction, these

submissions must be limited in scope. To assist the court, a tribunal may explain the scope of its

44 Samatar v. Canada (Attorney General), 2012 FC 1263 at para. 43,BOA, Tab 10.45 Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299 at para. 41, BOA, Tab 12; BransenConstruction Ltd. v. C.J.A., Local 1386, 2002 NBCA 27 at para. 33, BOA, Tab 2.46 Canada (Attorney General) v. Bernard, [1994] 2 F.C. 447 at para. 31, BOA, Tab 3.47 Quadrini v. Canada (Revenue Agency), 2010 FCA 246 at para. 16, BOA, Tab 9.48 Quadrini v. Canada (Revenue Agency), 2010 FCA 246 at para. 16, BOA, Tab 9.49 Bell Canada v. C.E.P., [1998] F.C.J. No. 1141 at para. 1, BOA, Tab 1; Li v. Canada (Minister of Citizenship &Immigration), 2004 FCA 267 at para. 5, leave to appeal to SCC refused, [2005] S.C.C.A. No. 119, BOA, Tab 6;Quadrini v. Canada (Revenue Agency), 2010 FCA 246 at para. 17, BOA, Tab 9.50 Mikail v. Canada (Attorney General), 2011 FC 674 at para. 11, BOA, Tab 7; Quadrini v. Canada (RevenueAgency), 2010 FCA 246 at para. 29, BOA, Tab 9.

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jurisdiction. But it cannot expound on whether it correctly exercised that jurisdiction when to do

so would go to the heart of the appeal.51

35. As the Supreme Court of Canada held in Northwestern Utilities, “[t]he Board is given a

clear opportunity to make its point in its reasons for decision, and it abuses one’s notion of

propriety to countenance its participation as a full-fledged litigant in this Court, in complete

adversarial confrontation with one of the principals in the contest before the Board itself in the

first instance.”52

A tribunal’s submissions must be relevant to the appeal and useful to the court

36. A tribunal’s submissions must be relevant to the issues in the appeal and useful to the

Court.53 In the context of motions for intervention by a tribunal, this Court requires that the

tribunal’s submissions “do more than simply restate what others will be arguing, for example, by

bringing an additional or a different perspective to the proceeding.”54

The CRTC’s memorandum goes beyond the proper scope of a tribunal’s participation inan appeal from its own decision

37. Substantial parts of the CRTC’s memorandum offend the principles governing the scope

of a tribunal’s participation in an appeal from its own decision. The Court should therefore strike

out the CRTC’s memorandum in its entirety, and direct the CRTC to submit a fresh

memorandum that respects these principles, limited to the content identified below.

The CRTC’s memorandum improperly supplements its reasons

38. With the exception of its submissions on its proper role and the applicable standard of

review,55 the CRTC’s legal arguments in its memorandum are, in substance, an attempt to

provide reasons – which it failed to provide in the decision itself – for its decision to render the

51 Bell Canada v. C.E.P., [1998] F.C.J. No. 1141 at para. 1, BOA, Tab 1; Li v. Canada (Minister of Citizenship &Immigration), 2004 FCA 267 at para. 5, leave to appeal to SCC refused, [2005] S.C.C.A. No. 119, BOA, Tab 6;Mikail v. Canada (Attorney General), 2011 FC 674 at para. 13, BOA, Tab 7.52 Northwestern Utilities v. Edmonton (City), [1979] S.C.R. 684 at para. 51, BOA, Tab 8.53 Quadrini v. Canada (Revenue Agency), 2010 FCA 246 at para. 15, BOA, Tab 9.54 Quadrini v. Canada (Revenue Agency), 2010 FCA 246 at para. 15, BOA, Tab 9.55 CRTC’s memorandum of fact and law, paras. 69-73.

19

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Wireless Code applicable to all wireless contracts as of 3 June 2015, and to expound a

jurisdictional foundation for that decision that is also entirely absent from the Wireless Code

decision itself. They are the very kind of attempt to “bootstrap” a decision that this Court has

found to be inappropriate.

39. For example, the CRTC makes the following arguments in support of its jurisdiction to

apply the Wireless Code to pre-existing contracts:

(a) the Wireless Code decision does not interfere with vested rights, because rights to

early cancellation fees do not vest until a customer terminates a contract;56

(b) contracts filed by the appellants with the CRTC, to a greater or lesser extent,

contemplate that they are subject to future legislative or regulatory changes;57

(c) in deciding to apply the Wireless Code to pre-existing contracts, the CRTC “was

exercising its powers under section 24 and subsections 27(2) - 4 of the Act”;58 and

(d) the CRTC made an implicit finding that an undue preference had been conferred

upon the wireless carriers, which confers on the CRTC the jurisdiction to remedy

the undue preference under sections 24 and subsections 27(2) to (4) of the Act.59

40. It was open to the CRTC, in its 401-paragraph Wireless Code decision, to provide

reasons supporting its jurisdiction and legal entitlement under the Act to interfere with vested

rights and engage in retrospective rule-making, and to try to support that jurisdiction by

reference to sections 24 and 27 of the Act. It could also have set out in its decision the reasons

why, in its opinion, the appellants’ rights with respect to early cancellation fees are not vested

rights. It failed to do so. Having decided not to provide reasons, the CRTC should not be

permitted to provide them for the first time in its memorandum of fact and law on this appeal.

41. On this basis alone, the overview and legal argument in the CRTC’s memorandum should

be struck out entirely. The CRTC should be directed to submit a fresh memorandum with legal

56 CRTC’s memorandum of fact and law, paras. 76-85.57 CRTC’s memorandum of fact and law, para. 94.58 CRTC’s memorandum of fact and law, para. 95.59 CRTC’s memorandum of fact and law, para. 97.

20

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argument confined to the content of the sections of the memorandum that the CRTC has already

filed on the proper scope of the CRTC’s participation in this appeal and the applicable standard

of review.60

The CRTC’s submissions engage the merits of the appeal and defend the CRTC’s decision

42. Further, the CRTC’s legal argument offends the principle of impartiality by defending the

CRTC’s decision and by engaging the merits of the appeal.

43. The CRTC’s legal argument improperly defends vigorously the CRTC’s decision to

apply the Wireless Code to pre-existing contracts by 3 June 2015. Indeed, the legal argument is

set out under a heading entitled “The CRTC Properly Exercised Its Jurisdiction.”61 The CRTC’s

arguments and the language it uses to make them leave no doubt that the CRTC has entered the

adversarial process in this appeal. In violation of the principle of impartiality, the CRTC is

squarely defending its decision and engaging the question at the heart of the appeal – whether the

CRTC exceeded its jurisdiction or erred in law.

44. The CRTC devotes an entire section of its legal argument to explaining why, in its

submission, the application of the Wireless Code to pre-existing contracts would not interfere

with the appellants’ vested rights.62 This argument is squarely directed to whether the CRTC

correctly exercised its jurisdiction and whether it erred in law by applying the Wireless Code to

pre-existing contracts. These are questions going to the heart of this appeal.

45. The CRTC devotes another section of its legal argument to explaining how, in its view,

“it properly exercised its statutory powers within its legislative framework.”63 This argument

goes well beyond an explanation of the scope of its jurisdiction under the Act. The CRTC

improperly takes the position that it has not exceeded its jurisdiction or erred in law.

46. The CRTC’s vigorous defence of its decision is far removed from an explanation of the

scope of its powers under the Act intended to assist the Court. It goes well beyond the proper

60 CRTC’s memorandum of fact and law, paras. 69-73.61 CRTC’s memorandum of fact and law, para. 21.62 CRTC’s memorandum of fact and law, paras. 76-85.63 CRTC’s memorandum of fact and law, paras. 86-98.

21

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scope of a tribunal’s participation in an appeal from its own decision, and severely undermines

the CRTC’s impartiality. For this reason as well, the CRTC’s legal argument should be struck

out.

The CRTC’s factual submissions are not relevant or useful

47. Finally, much of the CRTC’s factual submissions are not relevant to this appeal or useful

to the Court. As noted above, with the exception of a section that describes the CRTC’s

regulatory powers under the Act64 and one paragraph that describes SaskTel and

PIAC/CAC/COSCO’s legal arguments respect to the CRTC’s jurisdiction,65 the facts set out by

the CRTC are not relevant to whether the CRTC exceeded its jurisdiction or erred in law by

applying the Wireless Code to pre-existing contracts. Instead, they are relevant to the merits of

the CRTC’s decision to adopt the Wireless Code and to choose 3 June 2015 as its

implementation date for all contracts. None of this goes to the CRTC’s jurisdiction, or its legal

entitlement, to apply the Wireless Code to pre-existing contracts.

48. In any event, to the extent that this Court requires an understanding of the rationale for

the CRTC’s decisions to adopt the Wireless Code and to apply the Wireless Code to pre-existing

contracts, the Wireless Code decision sets out that rationale. The CRTC’s submissions either

duplicate or improperly add to the Wireless Code decision in this regard.

49. Except the section and paragraph noted above, the discussion of the facts set out in the

CRTC’s memorandum are irrelevant to the issues on this appeal and not useful to the Court. It

should be struck out.

50. The CRTC’s memorandum should therefore be struck out entirely. The CRTC should be

directed to file a fresh memorandum that includes factual submissions confined to the content of

the following paragraphs from the memorandum it has already filed: paragraphs 8 to 17 (CRTC’s

powers under the Act) and 55 (parties’ submissions on jurisdiction during the Wireless Code

proceeding).

64 CRTC’s memorandum of fact and law, paras. 8-17.65 CRTC’s memorandum of fact and law, para. 53.

22

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Leave to file a reply should be granted

51. This Court has discretion to grant an appellant leave to file a reply memorandum in

response to a respondent’s memorandum of fact and law under Rule 3, which provides that the

“Rules shall be interpreted and applied so as to secure the just, most expeditious and least

expensive determination of every proceeding on its merits.”66

52. The Court may exercise this discretion where special circumstances exist that justify the

granting of leave to submit a reply memorandum.67 For example, this Court has permitted the

filing of a reply memorandum where doing so would “ensure that the panel hearing the appeal

has a complete picture of the legal arguments.”68 This Court has also said that leave to file a

reply memorandum will be granted where the respondent’s memorandum attacks some of the

reasons for judgment that were not attacked by the appellant.69 This is to afford the appellants the

opportunity to address in writing arguments of which it had no prior notice, and to ensure that the

oral hearing proceeds as efficiently as possible.

53. Here, the appellants had no notice of most of the arguments put forward by the CRTC

and the other respondents until they received the memoranda of fact and law on this appeal. The

appellants prepared their memorandum without the benefit of any reasons by the CRTC as to its

jurisdiction to apply the Wireless Code to pre-existing contracts and, with one minor exception,70

without the benefit of the respondents’ positions. This is in stark contrast to the typical situation

in an appeal, where the appellant prepares its submissions with the benefit of reasons from the

decision-maker and the opposing party’s submissions in the court or tribunal below.

54. Granting the appellants leave to submit a reply memorandum would be of benefit to both

the Court and the respondents, since they would have the details of the appellants’ complete legal

argument in writing before the hearing. This would make for a more focused and efficient

66 Federal Courts Rules, SOR 98-106, Rule 3.67 Sawridge Band v. Poitras, 2011 FCA 310 at para. 4, BOA, Tab 11.68 Johnson & Johnson Inc. v. Boston Scientific Ltd., 2009 FCA 155 at para. 12, BOA, Tab 5.69 Canada (Attorney General) v. Dussault, 2003 FCA 5 at para. 6, BOA, Tab 4.70 Final Written Comments of PIAC/CAC/COSCO, para. 50, Appeal Book, Volume 5, Tab 54.

.

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hearing. If the appellants cannot submit a reply memorandum, they will have no option but to

respond to the respondents' arguments for the first time orally at the hearing.

55. Since a hearing date has not yet been set, the respondents will not be prejudiced by an

order granting the appellants leave to submit a reply memorandum.

PART V — ORDER REQUESTED

56. The appellants request an order:

(a) striking out the CRTC's memorandum of fact and law;




(c) granting the appellants leave to submit a 20-page reply memorandum of fact and

law within 20 days of the date of the order; and


April 1, 2014 ALL OF WHICH IS RESPECTFULLY SUBMITTED

John B. Laskin / Myriam Seers

Counsel for the Appellants

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hearing. If the appellants cannot submit a reply memorandum, they will have no option but to

respond to the respondents' arguments for the first time orally at the hearing.

55. Since a hearing date has not yet been set, the respondents will not be prejudiced by an

order granting the appellants leave to submit a reply memorandum.

PART V — ORDER REQUESTED

56. The appellants request an order:

(a) striking out the CRTC's memorandum of fact and law;




(c) granting the appellants leave to submit a 20-page reply memorandum of fact and

law within 20 days of the date of the order; and


April 1, 2014 ALL OF WHICH IS RESPECTFULLY SUBMITTED

t/v John B. Laskin / Myriam Seers

Counsel for the Appellants

24

SCHEDULE A - AUTHORITIES

1. Bell Canada v. C.E.P., [1998] F.C.J. No. 1141.

2. Bransen Construction Ltd. v. C.J.A., Local 1386, 2002 NBCA 27.

3. Canada (Attorney General) v. Bernard, [1994] 2 F.C. 447.

4. Canada (Attorney General) v. Dussault, 2003 FCA 5.

5. Johnson & Johnson Inc. v. Boston Scientific Ltd., 2009 FCA 155.

6. Li v. Canada (Minister of Citizenship & Immigration), 2004 FCA 26, leave to appeal toSCC refused, [2005] S.C.C.A. No, 119.

7. Mikail v. Canada (Attorney General), 2011 FC 674.

8. Northwestern Utilities v. Edmonton (City), [1979] S.C.R. 684.

9. Quadrini v. Canada (Revenue Agency), 2010 FCA 246.

10. Samatar v. Canada (Attorney General), 2012 FC 1263.

11. Sawridge Band v. Poitras, 2011 FCA 310.

12. Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299.

25

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SCHEDULE B

STATUTES AND REGULATIONS

Telecommunications Act, S.C. 1993, c. 38 Loi sur les télécommunications, L.C. 1993,ch. 38

Appeal to Federal Court of Appeal

64. (6) The Commission is entitled to be heardon an application for leave to appeal and atany stage of an appeal, but costs may notbe awarded against it or any of itsmembers.

Droit d’appel

64. (6) Le Conseil a le droit de presenter desobservations pendant l'instruction de lademande d'autorisation et ensuite a touteetape de la procedure d'appel; les frais nepeuvent cependant etre mis a sa charge ou acelle des conseillers.

Federal Courts Rules, SOR/98-106 Règles des Cours fédérales, DORS/98-106

General principle

3. These Rules shall be interpreted and appliedso as to secure the just, most expeditious andleast expensive determination of everyproceeding on its merits.

Principe général

3. Les présentes règles sont interprétées etappliquées de façon à permettre d’apporter unesolution au litige qui soit juste et la plusexpéditive et économique possible.

26

ikara

Rectangle



Ottawa, Ontario, April , 2014

Present:

B E T W E E N:



Appellants- and -












Respondents

ORDER

27

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UPON the motion of the appellants for an order (1) striking out the memorandum of fact

and law submitted by the Canadian Radio-television and Telecommunications Commission

(“CRTC”) in this appeal, except paragraphs 8 to 17, 55 and 69 to 73, and (2) granting them

leave to serve and file a 20-page reply memorandum of fact and law within 20 days of the

granting of the order;

AND UPON reviewing the motion records of the appellants and the respondents CRTC

and _________________________;

THIS COURT ORDERS that:

The CRTC’s memorandum of fact and law is struck out;1.

The CRTC shall file a replacement memorandum of fact and law confined to the content2.

of paragraphs 8 to 17, 55 and 69 to 73 of the memorandum that has been struck out, within 10

days of the date of this order;

The appellants may serve and file a 20-page reply memorandum of fact and law within3.

20 days of the date of this this order; and

The respondents ___________________ shall pay costs to the Appellants in the amount4.

of _______________ within 30 days of this order.

28

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