FCM, cities file leaves to appeal Ledcor decision to Supreme Court of Canada

The longstanding battle between telcos and municipalities over rights-of-way may be nearing an end as three leaves to appeal the landmark case on municipal access have been filed with Canada’s highest court. The Federation of Canadian Municipalities (FCM), the City of Vancouver and a coalition of the City of Calgary, the City of Ottawa, the City of Toronto and the Regional Municipality of Halifax have each filed a leave to appeal a lower court ruling with the Supreme Court of Canada. They want the highest court in the land to overturn a Federal Court of Appeal decision last year, which upheld a CRTC ruling on rights-of-way (NL Update, Dec. 19/02). The issue derives from the commission ruling on Ledcor Industries Ltd. and Vancouver (NL, Jan. 29/01). In Decision 2001-23, the CRTC ruled that the B.C. city has the right to recover costs, but not as much as it wanted. The matter has been before the courts ever since, with one of the major arguments being that of jurisdiction. "The constitutional issue that arises in this case is that of limits . At what point does the CRTC, acting pursuant to valid federal legislative provisions relating in pith and substance to telecommunications, act outside the legislative competence of Parliament and thereby exceed its jurisdiction? "According to the CRTC and the Court of Appeal, there is no such point," the FCM’s leave to appeal states. "In FCM’s submission, this was an error of jurisdiction and law not corrected by the Court of Appeal." Not so, according to Teresa Muir, VP regulatory affairs at AT&T Canada. The CLEC is one of 17 respondents named in the FCM’s leave to appeal, along with the CRTC as an intervener. "Those were guidelines the commission put out in that decision," she tells Network Letter. "They have the jurisdiction to do that." Among the material in the two volumes the FCM has filed with the court is an affidavit from FCM CEO James Knight. He worries that Ledcor, which was supposed to apply to Vancouver only, is being transposed to a larger market. "Since the Ledcor decision was issued by the CRTC in January 2001, I am aware that telecommunication carriers across the country have aggressively relied on the principles set down by the CRTC in the Ledcor decision," his statement reads. "Carriers have sought to negotiate rights-of-way agreements on the basis of what they call the ‘Ledcor Principles.’" Knight then goes on to list several attempts to re-open agreements. All of the cases listed involve AT&T Canada. The longest-standing dispute is between the CLEC and the City of Toronto (NL, July 30/01). That led to a proceeding under Public Notice 2001-99, which is still awaiting a decision. But Muir argues that the provisions of the original decision have helped municipalities and telcos reach agreement. Both sides have been able to negotiate new contracts that are beneficial to both sides."None of the applications that we’ve made on new agreements have required a commission determination," she notes. Disputes with the City of Surrey (NL, Dec. 5/01) and with the City of Edmonton (NL, Aug. 27/02) were settled before the CRTC could render a decision. Muir believes that having the provisions of the Ledcor decision in place helped move the process along. The 17 respondents to the leaves to appeal, mostly major telcos and cablecos along with the Attorney General of Canada, have 30 days to respond to the filings. The applicants then have 10 days to make any replies they wish. Either side could ask for an extension on the timelines from the Supreme Court, although to date none has.

FCM, cities file leaves to appeal Ledcor decision to Supreme Court of Canada

News | March 11, 2003

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