Craig Wireless wins leave to appeal CRTC’s approval of UBS control of Look

Craig Wireless International Inc. has taken its fight to gain control of Look Communications Inc. to the Federal Court of Canada, winning the right to appeal a CRTC decision that allowed Unique Broadband Systems Inc. (UBS) to become the majority stakeholder in the wireless cableco based in Ontario and Quebec. Craig Wireless now has until April 18 to ask the Federal Court of Appeal to overturn the Oct. 17, 2003 CRTC decision that allowed UBS to up its interest in Look to 51.06%. In its successful leave to appeal application, filed on Nov. 17, 2003, Craig Wireless states that the commission "erred in law and breached the principles of natural justice when it approved the application on an ex parte basis and without public notice, and without affording the applicant (Craig Wireless) any opportunity to make representations or file evidence related to the decision before it was made by the commission, despite the commission’s awareness that the applicant had an interest and had concerns to voice with respect to the application." Craig Wireless president Boyd Craig expressed concerns to Canadian Communications Reports last October about the manner in which the CRTC had handled the application. "(UBS’s approval by the CRTC to gain control of Look) was conditional upon them proving that they are Canadian controlled. …The position that we’re taking is we’d like to see that application because so far it’s been done on a fast-track scenario and we have not had access to the application…But our position is that the fast-track scenario was really put in place to expedite applications that were non-contentious," Craig said (CCR, Oct. 31/03). Craig Wireless counsel Grant Buchanan, of McCarthy Tétrault, challenged the CRTC decision to fast-track Look’s application based on guidelines set out in the Sept. 19, 2003 Broadcasting Public Notice 2003-50. Buchanan contends that if Look’s application allowing UBS to gain control of it had been simple and straightforward, then the CRTC would not have had to order UBS to make changes to its classes of shares and its breakdown of share ownership so Canadian ownership requirements could be met. Between October 13 and 15 of last year, Buchanan learned through talks with CRTC staff that it was unlikely that Craig Wireless would be able to comment on the application. But after further discussion, Buchanan was left with the impression on October 17 that the commission would postpone the application until licence renewal hearings for wireless cable operators, including Look and Craig Wireless, that got underway on October 20. But Craig Wireless notes in its leave to appeal request that later on October 17, without notice to Buchanan, Boyd Craig or Craig Wireless, the commission conditionally approved Look’s application, according to the court documents filed by Craig Wireless. Buchanan tells the court, "Central to the conclusion the commission erred in law and in jurisdiction in this case is the commission’s reach of procedural fairness." UBS and Look responded to Craig Wireless’ leave to appeal application that it "is a private matter between shareholders and not a matter of public interest to the CRTC or over which the CRTC has jurisdiction." Stephen Zolf, of Heenan Blaikie LLP and the lawyer for UBS, questions Craig Wireless’ motives for waiting four and a half months to appeal after the transaction was announced last May 29. He writes in his January response to the leave application that Craig Wireless "has failed to provide any evidence to support its argument that the CRTC’s decision to consider the application under its streamlined procedure violated their right to procedural fairness, assuming such rights even exist on the facts of this case." With leave to appeal granted, Craig is expected to ask the Federal Court of Appeal to set aside the CRTC decision approving the UBS takeover; that the Look application be remitted to the CRTC for reconsideration, with a direction that it proceed by public notice and the receipt of submissions and evidence in writing; and other relief that the court may permit.

Craig Wireless wins leave to appeal CRTC’s approval of UBS control of Look

Broadcast | March 11, 2004

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