MTS Allstream Inc. v. Toronto (City)

MTS Allstream Inc. v. Toronto (City) Court (s) Database Federal Court of Appeal Decisions Date 2006-03-06 Neutral citation 2006 FCA 89 File numbers A-653-05, A-654-05 Notes Digest Decision Content Date: 20060306 Docket: A-653-05 A-654-05 Citation: 2006 FCA 89 Present: DÉCARY J.A. NOËL J.A. SHARLOW J.A. A-653-05 BETWEEN: MTS ALLSTREAM INC. Appellant and CITY OF TORONTO Respondent _____________________________________________________________________________ A-654-05 BETWEEN: MTS ALLSTREAM INC. Appellant and CITY OF CALGARY Respondent Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on March 6, 2006. REASONS FOR ORDER BY: SHARLOW J.A. CONCURRED IN BY: DÉCARY J.A. NOËL J.A. Date: 20060306 Docket: A-653-05 A-654-05 Citation: 2006 FCA 89 Present: DÉCARY J.A. NOËL J.A. SHARLOW J.A. A-653-05 BETWEEN: MTS ALLSTREAM INC. Appellant and CITY OF TORONTO Respondent ______________________________________________________________________________ A-654-05 BETWEEN: MTS ALLSTREAM INC. Appellant and CITY OF CALGARY Respondent REASONS FOR ORDER SHARLOW J.A. [1] The appellant MTS Allstream Inc. seeks an order quashing notices of cross-appeal filed by the respondent City of Toronto in A-653-05, and by the City of Calgary in A-654-05. MTS submits that there can be no cross-appeal in this case without leave, and alternatively that the issues sought to be raised by Toronto and Calgary do not require a cross-appeal. [2] MTS has obtained leave to appeal a decision of the Canadian Radio-Television and Telecommunications Commission (CRTC) dated August 25, 2005 which denied the application of MTS for relief in relation to the terms upon which it could obtain access to certain property owned or controlled by Toronto and Calgary. Leave to appeal was required because of subsection 64(1) of the Telecommunications Act, S.C. 1993, c. 38, which reads as follows: 64. (1) An appeal from a decision of the Commission on any question of law or of jurisdiction may be brought in the Federal Court of Appeal with the leave of that Court. 64. (1) Avec son autorisation, il peut être interjeté appel devant la Cour d'appel fédérale, sur des questions de droit ou de compétence, des décisions du Conseil. [3] The procedure for seeking leave to appeal is governed by Rules 352 to 356 of the Federal Courts Rules, SOR/98-106. Cross-appeals are not mentioned in the Telecommunications Act, or in Rules 352 to 356. [4] In the case of an appeal brought as of right, cross-appeals are governed by Rule 341 of the Federal Courts Rules, SOR/98-106, which reads in part as follows: 341. (1) A respondent who intends to participate in an appeal shall, within 10 days after service of the notice of appeal, serve and file 341. (1) L'intimé qui entend participer à l'appel dépose et signifie, dans les 10 jours suivant la signification de l'avis d'appel : (a) a notice of appearance in Form 341A; or a) soit un avis de comparution établi selon la formule 341A; (b) where the respondent seeks a different disposition of the order appealed from, a notice of cross-appeal in Form 341B. b) soit, s'il entend demander la réformation de l'ordonnance portée en appel, un avis d'appel incident établi selon la formule 341B. [5] In this case, Toronto and Calgary do not have a foundation for a cross-appeal, because they are not seeking a different disposition of the order appealed from. That is, they are not seeking to reverse the CRTC's dismissal of the application of MTS. Rather, they are seeking to argue that the CRTC should not have entertained the application of MTS. In other words, Toronto and Calgary take the position that the CRTC should have dismissed the application of MTS on the basis of their preliminary objection on jurisdictional grounds, without a hearing on the merits. [6] It is open to Toronto and Calgary to make those submissions in their respective memoranda of fact and law, without a notice of cross-appeal, as an alternative basis upon which the CRTC could have dismissed the MTS application: see Wewayakum Indian Band v. Canada and Wewayakai Indian Band (1999), 247 N.R. 350 (F.C.A.), at paragraph 147; Air Canada v. Canada (Commissioner of Competition) (C.A.), [2002] 4 F.C. 598, at paragraphs 32 and 33; Kligman v. M.N.R. (C.A.), [2004] 4 F.C.R. 477, at paragraph 10 and paragraphs 80 to 93, and Froom v. Canada (Minister of Justice) (F.C.A.), [2005] 2 F.C.R. 195, at paragraph 11. That is a sufficient reason for quashing Toronto's notice of cross-appeal. [7] If I had concluded that Toronto and Calgary had a proper foundation for a cross-appeal, it would have been necessary to consider whether they are required to obtain leave under section 64 of the Telecommunications Act. I am inclined to the view that leave would have been required, because otherwise section 64 cannot perform its intended screening function. [8] The motion to quash the notices of cross-appeal will be granted. The costs of this motion in A-653-03 will be borne by Toronto, and in A-654-04 will be borne by Calgary. "K. Sharlow" "I agree Robert Décary J.A." "I agree Marc Noël J.A." FEDERAL COURT OF APPEAL Names of Counsel and Solicitors of Record DOCKET: A-653-05 A-654-05 STYLE OF CAUSE: MTS ALLSTREAM INC. Appellant - and - CITY OF TORONTO/CITY OF CALGARY Respondent PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER: SHARLOW J.A. CONCURRED IN BY: DÉCARY J.A. NOËL J.A. DATED: MARCH 6, 2006 APPEARANCES BY: Michael Koch FOR THE APPELLANT Dina Graser Andrew Weretelnyk FOR THE RESPONDENT Kirsten Franz Paul Tolley FOR THE RESPONDENT SOLICITORS OF RECORD: Goodman LLP FOR THE APPELLANT Barristers & Solicitors Toronto, Canada City Solicitor's Office FOR THE RESPONDENT City of Toronto Toronto, ON City Solicitor FOR THE RESPONDENT The City of Calgary Calgary, AB