Federal Court of Appeal orders CRTC staff memo released
Justice J.A. Linden, of the Federal Court of Appeal, has ordered that CRTC staff briefing papers that were before the commission in putting together Telecom Circular 2004-3 be released to TELUS Communications Inc. The appellant, TELUS Communications Inc., also wanted access to documentation showing that the CRTC considered and applied the External Charging Policy before expanding telecommunications fees to include the operating income of partners of Canadian carriers who file tariffs, and documentation showing that the procedures contemplated by the User Fees Act were followed before the circular was issued. It was indicated that there was no such documentation on file. But the appellant did win access to the staff briefing papers. "In my view, the material sought by the appellant may well have affected the decision of the board in this case. There was no oral hearing before making the decision. The reasons are skimpy and may not disclose all the considerations taken into account," writes the judge in his decision, released September 23. "…Whether the board considered the External Charging Policy and the User Fees Act, the latter of which came into force before the decision concerning TC 2004-3 was released, may become material in the hearing of the appeal. The staff memo may enlighten the court on this matter. On balance, therefore, I am of the view that the staff memorandum that was before the board should be delivered to the registry and served upon the appellant, subject of course to any claims of privilege in relation to any parts of the document." John Tyhurst, the lawyer for the respondent, the Attorney General of Canada, unsuccessfully argued that some material in the staff memorandum might be privileged, and irrelevant in determining the reasons for the board’s decision.

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