TeleZone case against Industry Canada takes new shape in New Year

The federal government may soon find itself subject to a summary judgement in its fight against TeleZone Inc. as former Industry Canada minister John Manley failed to appear before a court recently to defend the department’s 1995 PCS licensing process. Lawyers representing TeleZone in its longstanding civil case against the department will soon file a motion seeking to strike out the government’s statement of defence in the case. TeleZone has been trying to question Manley for more than a year about the PCS licensing process, but Manley has invoked parliamentary privilege to dodge questions. If a judge grants the company’s motion it would be similar to the government admitting it owes the company damages, says Steve Coxford, former TeleZone investor and the man leading the fight against the department. "That would mean the action would be undefended. We would, in effect, get a summary judgement on the question of liability. In other words, would be tantamount to acknowledging that they owe us something and there would probably be what’s referred to as a directed reference on the question of damages," he tells Report on Wireless. It’s unclear at this point whether a court would be willing to take a such a large leap and strike out the government’s statement of defence. The court is likely to give Manley one more chance to appear and, if he doesn’t, then it could move to strike out the statement of defence. Coxford says the door opened to the legal maneuver when Manley didn’t show up for a discoveries examination on December 23, 2003. This was the only day that Manley couldn’t invoke parliamentary privilege because it falls outside of the 40 days after a session ends and 40 days before a new one begins, he says. A couple of events came together to make this day the only appropriate interview day, Coxford explains. Former Prime Minister Jean Chrétien prorogued Parliament on November 12 and current Prime Minister Paul Martin stated when he was sworn in on December 12 that Parliament wouldn’t begin sitting again until the first half of February. Combined, those two events gave TeleZone a window of opportunity to interview Manley when he couldn’t invoke parliamentary privilege. "We’ve been arguing about this for nearly two years. The day finally came when he had no excuse not to be there and he didn’t show up. And the remedy to the plaintiff who has not been able to discover or examine the witness in question is to move to strike out the statement of defence. Now that application has not yet been brought, but it probably will be next week," Coxford tells Report on Wireless. The Department of Justice Canada is on the public record saying that it is considering its options following Manley’s decision to not appear for the discoveries examination. Parliamentary privilege allows members of Parliament (MPs) to skate around testifying in court. An Ontario Court of Appeal ruled last week that MPs are immune from being required to testify while Parliament in is session, overturning a lower court ruling in favour of TeleZone stating that parliamentary privilege can only be used when Parliament is sitting. They can also invoke the privilege for a period of 40 days before a session begins and 40 days after one ends. The Court of Appeal also ruled that it’s not a question of whether Manley has to appear for a discoveries examination, it’s a question of when he will be able to appear in the proceeding. Late last year, TeleZone served Manley and the federal government with a notice to appear on December 23. Telezone’s court battles with Industry Canada date back to January 1996 when the company launched a massive Access to Information inquiry seeking all information pertaining to the awarding of the PCS licences to Clearnet Communications Inc. (now part of Telus Mobility), Microcell Telecommunications Inc., Rogers Wireless Inc. and Mobility Canada (since divided up into the wireless arms of the regional incumbent telcos). TeleZone alleged at the time Industry Canada altered evaluation criteria in mid-stream without telling applicants, which ultimately resulted in TeleZone not being granted one of the four PCS licences. After the filing netted about 200 documents, the company was still convinced the department hadn’t handed over all pertinent documents. In the spring of 1999, TeleZone switched gears. It launched a civil suit against the department on the grounds that Manley acted outside of published guidelines. The suit is seeking $250 million in damages (RoW March 29/99). Coxford says the number of documents Industry Canada has handed over in the civil proceeding skyrocketed from the initial 203 documents to more than 2,000. Coxford is still convinced that he has not received all the documents. "I can still go through the most recently delivered documents and I can still find references to other documents that we have not yet received," he says. Making inquiries to the ethics counsellor Coxford has also begun to make inquiries to Howard Wilson, the Canadian government’s ethics counsellor, about whether Manley reported flying on private aircraft. There was a big uproar across Canada when it was revealed that several high-profile Cabinet ministers, including Chrétien and Martin, accepted flights on private and corporate aircraft. After letters to the ethics counsellor went unanswered, Coxford asked Gord McIntosh, an associate with Association House, to make inquiries. McIntosh, the former head of the Ottawa bureau of the Canadian Press, has been working with TeleZone for the past couple of months to communicate its story to the press. McIntosh registered as a lobbyist on behalf of TeleZone on January 7.

TeleZone case against Industry Canada takes new shape in New Year

News | January 13, 2004

Unlock all the Canadian telecom, broadcasting and digital media news you need.

FREE TRIAL

SUBSCRIBE

Inside The Wire Report

Information

Hill Times Publishing

Get in Touch With Us