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T-26-10 Judgment

T-26-10 Judgment

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Published by: CBCPolitics on Feb 04, 2011
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02/04/2011

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Federal Court Cour fédérale 
Date: 20110204Docket: T-26-10Citation: 2011 FC 130Ottawa, Ontario, February 04, 2011PRESENT: The Honourable Mr. Justice HughesBETWEEN:PUBLIC MOBILE INC.ApplicantandATTORNEY GENERAL OF CANADA,GLOBALIVE WIRELESS MANAGEMENTCORP., BELL CANADA, ROGERSCOMMUNICATIONS INC., SHAWCOMMUNICATIONS INC., AND TELUSCOMMUNICATIONS COMPANYRespondentsandALLIANCE OF CANADIAN CINEMA,TELEVISION AND RADIO ARTISTS,COMMUNICATIONS, ENERGY ANDPAPERWORKERS UNION OF CANADA, ANDFRIENDS OF CANADIAN BROADCASTINGInterveners REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review brought under the provisions of section 18.1 of the
Federal Courts Act 
, R.S. 1985, c. F-7 of a Decision dated December 10, 2009, made by the
 
Page:2Governor in Council pursuant to section 12(1) of the
Telecommunications Act 
, S.C. 1993, c. 38. Bythat Decision, the Governor in Council varied a Decision of the Canadian Radio-television andTelecommunications Commission (CRTC), Telecom Decision CRTC 2009-678. The Governor inCouncil determined that the Respondent Globalive Wireless Management Corp. met therequirements of section 16 of the
Telecommunications Act 
and is currently eligible to operate as atelecommunications common carrier in Canada.[2] For the reasons that follow, I find that the Applicant Public Mobile Inc. has standing to bringthis Application, that the Decision of the Governor in Council is quashed, that the Judgment will bestayed for forty-five days and that costs are to be spoken to.
INDEX
For convenience, these Reasons are indexed as follows:
THE PARTIES paragraphs 3 to 7BACKGROUND FACTS paragraphs 8 to 13CRTC DECISION 2009-678 paragraphs 14 to 37THE GOVERNOR IN COUNCIL’S DECISION paragraphs 38 to 59ISSUES paragraphs 60 to 61COURT’S SUPERVISORY FUNCTIONSECTION 18.1 paragraphs 62 to 65ISSUE 1 a) Standing paragraphs 66 to 79ISSUE 1 b) Alternative Remedy paragraphs 80 to 83ISSUE 2 a) The Telecommunications Act paragraphs 84 to 95ISSUE 2 b) Findings of Fact paragraphs 96 to 119
 
Page:3
CONCLUSIONS paragraphs 120 to 121COSTS paragraphs 122 to 123JUDGMENTTHE PARTIES
[3] The Applicant Public Mobile Inc. successfully participated in 2008 in an auction of radiofrequency spectrum conducted by the Minister of Industry. As a result it proposed to commenceoperation as a telecommunications common carrier and to introduce wireless services sometime in2010. Public Mobile received a letter from the CRTC stating that Public Mobile was required tosatisfy the CRTC as to whether it complied with the Canadian ownership requirements of the
Telecommunications Act 
. The Record indicates that as of the date of filing of the Record, PublicMobile was engaged in hearings before the CRTC in this respect.[4] The Respondent Attorney General of Canada represents the Governor in Council in theseproceedings.[5] The Respondent Globalive Wireless Managements Corp. also successfully participated inthe auction of radio frequency spectrum in securing the right to use radio frequencies that wouldpermit it to provide wireless telecommunications services to the public subject to compliance withthe provisions of the
Telecommunications Act 
. The CRTC held a hearing as to whether Globalivecomplied with the Canadian ownership requirements of that
 Act 
. The CRTC, in its Decision,determined that Globalive did not meet the provisions of section 16(1) of that
 Act 
in that it was

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