Ledcor principles under scrutiny in Rogers and New Brunswick dispute

Rogers Communications Inc.and the Province of New Brun-swick continue to spar over the applicability of the Ledcor principles – which stem from the January 2001 Decision 2001-23 – in a dispute over access to provincial highway right-of-ways (NL, Jan. 29/01). Rogers formally launched a complaint against New Brunswick’s Department of Transportation (DOT) in November 2005 when it charged that the DOT was levying unfair highway access charges (NL, Nov. 23/05). The province’s DOT responded to the complaint late last year, questioning the jurisdiction of the CRTC to adjudicate this particular matter. It suggested that Rogers’ problem is with paying the fees. Andrew Roman of Miller Thomson LLP, writing on behalf of the province, notes that New Brunswick charges all entities fees to access its highway right-of-ways (ROW). "If Rogers continues to operate its trucks on provincial ROW…without paying any fees as a contribution to the damage these vehicles impose on the ROW, the taxpayers of New Brunswick would be subsidizing the shareholders of Rogers," he writes. The province’s legal counsel suggests that Rogers is only willing to pay the right-of-ways fees if New Brunswick can prove the costs incurred by the province in allowing Rogers to access the ROW are "casual" in nature. Roman notes that based on Rogers’ argument, vehicle licensing fees could be found to be inconsistent with Ledcor principles. "When the commission is being asked by a carrier to effectively overrule, or amend by exception, the general applicable laws of an elected provincial government, the carrier needs to present more than the bald assertion that the charges involved are unacceptable to it because they are inconsistent with the Ledcor principles," reads New Brunswick’s submission. Responding to the province’s arguments last month, Rogers notes that the fees imposed by New Brunswick’s Department of Transportation are unreasonable "as they do not appear to be bear any relationship to costs incurred by the province as a result of Rogers’ placement of its transmission lines over DOT-controlled highway right-of-ways." The company suggests that the province must have some basis for determining the level of fees it charges. "In the absence of any reasonable evidence from the province on the quantity of costs caused by Rogers’ occupation of airspace over DOT highway right-of-ways, Rogers submits that the fees must be considered to be arbitrary," reads the communications provider’s submission. While New Brunswick and Rogers wage a war of words at the CRTC over the applicability of the Ledcor principles to provincial right-of-ways, the Federal Court of Appeal is considering a case between MTS Allstream (formerly Allstream) and the City of Edmonton. Roman suggests in New Brunswick’s arguments that the CRTC hold off on a decision in this case until the appeals court renders a decision because many of the issues are similar. Rogers disagrees, saying delaying a ruling "would perpetuate the current uncertainty between the parties." The company also notes that the appeals court has sided with the CRTC in a previous appeal. Municipal and provincial property access issues such as this one, according to many in the industry, don’t appear to be going away anytime soon. Access and right-of-ways matters have been described as "hell issues" that will at some point need to be dealt with once and for all.

Ledcor principles under scrutiny in Rogers and New Brunswick dispute

News | 02/02/2006 5:00 am EST

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