Sprint Canada Inc. v. Bell Canada

Sprint Canada Inc. v. Bell Canada Collection Decisions of the Court of Appeal Date 1999-01-12 Docket numbers C28778 Judges Labrosse, Jean-Marc; Charron, Louise Vivianne; Métivier, Monique Subject Civil Decision Content DATE: 19990112 DOCKET: C28778 COURT OF APPEAL FOR ONTARIO LABROSSE and CHARRON JJ.A. and MÉTIVIER J. (ad hoc) BETWEEN: ) ) SPRINT CANADA INC. and ) P. David McCutcheon and LIGHTEL INC. ) K. Broer, ) for the appellants Plaintiffs ) (Appellants)) James A. Hodgson and ) John A. Prestage, for the and ) respondent Bell Canada ) BELL CANADA and BC TEL ) Ronald G. Slaght, Q.C. ) and M. Veneziano, for the Defendants ) respondent BC Tel (Respondents)) ) Heard: December 7 and 8, ) 1998 BY THE COURT: [1] The appellants, Sprint Canada Inc. and Lightel Inc., appeal from the summary dismissal of their action against the respondents, Bell Canada and BC Tel by MacPherson J. They also appeal against the dismissal of their motion for summary judgment against the respondents. [2] The appellants are resellers of telecommunication services purchased from the respondents. Their action is for damages in relation to rates charged by the respondents to other resellers of telecommunication services under contracts more particularly described as hotel/motel commissions plans ("HMCP"). The fundamental basis for the appellants' action rests on their contention that they were entitled to the same discounts given to the respondents' hotel and motel customers under the HMCP from the time the appellants entered the competitive market to the time the HMCP were terminated by the Canadian Radio-Television and Telecommunications Commission (the "CRTC") in 1995. [3] In May 1992, the appellants brought an application before the CRTC requesting that they be provided with the same discounts provided to hotels and motels under the HMCP. In 1995, the CRTC rendered its decision on the appellants' application. In Decision 95-2, the CRTC reversed its long standing position and its earlier explicit rulings on HMCP. It held that as a result of an evolution which occurred in the telecommunications market place, the HMCP in fact allowed for discounted rates and thus were subject to its jurisdiction. The CRTC concluded that the HMCP must be terminated. Shortly thereafter, this action was commenced. [4] The motions judge held that (1) the action was an impermissible collateral attack on Decision 95-2 and that the court did not have jurisdiction over the claim, (2) the claim was precluded by s. 72 (3) of the Telecommunications Act (the "Act") and (3) the appellants had failed to raise a triable issue on their claim for damages. [5] It is only necessary to deal with the first and third issues on this appeal. Collateral attack on the CRTC decision [6] In our opinion, the motions judge was correct in concluding that the appellants' action constituted an impermissible attack on Decision 95-2. Although framed in tort, the action, in essence, raises the same fundamental issue with respect to the appellants' entitlement to the discount afforded to hotels and motels under the HMCP. This question was raised by the appellants' 1992 application before the CRTC, it was clearly within its jurisdiction and it was decided in Decision 95-2. [7] As noted by the motions judge, in Decision 95-2, the CRTC was reviewing five years of complicated economic activity in one sector of the telecommunications industry. It reconsidered its own previous decisions in light of the changes in the nature of the industry. The CRTC crafted a complex remedy and found that, as of 1995, the HMCP violated the Act. Hence it ordered that the HMCP be terminated in six months' time thereby giving customers the time to rearrange their affairs. More importantly, the CRTC did not find that the appellants were entitled to the same discount as requested nor did it find that the appellants had not received an equivalent treatment through the volume discounts it received during the relevant period. Finally, the CRTC did not make any compensatory order in favour of the appellants. The appellants did not appeal Decision 95-2. [8] The CRTC is a highly specialized tribunal with particular expertise. It enjoys a broad discretion over telecommunication matters and has broad powers to make remedial orders including financial remedies. The CRTC is entitled to curial deference. The appellants chose not to appeal Decision 95-2 and it is not open to them to revisit the matter by this action. On this ground alone, the respondents were entitled to summary judgment. No triable issue [9] In our view, the appellants' action is entirely misconstrued and raises no triable issue. As indicated earlier, the fundamental basis for the appellants' action rests on their contention that they were entitled to the same discounts given under the HMCP for the relevant period of time and that the respondents acted contrary to the Telecommunications Act in failing to give them the same or equivalent discounts. The appellants concede that this question is one that properly falls within CRTC jurisdiction and they interpret Decision 95-2 as having determined it in their favour. [10] We do not agree with this interpretation. Despite some language in Decision 95-2 that may appear to state otherwise, we are of the view that the only reasonable interpretation that can be made of the decision is that it speaks only from the date it was given and does not have any retrospective effect. Prior to the decision, the HMCP, according to earlier CRTC rulings, did not contravene the Telecommunications Act or its predecessor. Due to changes in the telecommunications environment, the CRTC reconsidered the matter and found that the HMCP offered "significant potential for anti-competitive behaviour" which would be in contravention of the legislation. Hence, the decision was made to terminate the HMCP in six months' time. The appellants concede that they do not have a right of action with respect to this six months' period. This concession is well founded because it could not be argued that the respondents were acting illegally in continuing the HMCP in accordance with the CRTC ruling for that period of time. In our view, the same reasoning applies with respect to the relevant period of time prior to Decision 95-2. Statutory bar to the action [11] In light of our conclusion that the appellants' action is ill- founded, we do not find this to be an appropriate case to decide whether an action for damages in relation to a rate is entirely precluded by s.72(3) of the Telecommunications Act. The question is better left for determination based on a proper factual foundation. [12] For these reasons, the appeal is dismissed with costs.