Right, class, due to popular demand there will be an additional session tonight for extra credit. This will not be on the final exam, but you will get bonus points for attendance and questions.
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The Constitution Act, 1867 divides legislative jurisdiction between the federal Parliament and the provincial legislatures.
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Federal jurisdiction has been held to include telephonic communications, because of the inter-provincial natures of telephones and the communications networks.
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This jurisdiction was originally set out in the federal Railway Act, because telegraphs had been closely connected with railways. As time passed, telephone systems were deemed to be “railways” for certain purposes, bringing them within the regulatory system of the Railway Act. (Eventually Parliament passed a federal Telecommunications Act, which replaced the Railway Act as the governing legislation.)
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The Canadian Radio and Television Commission, or “CRTC” was given the statutory jurisdiction to regulate telephones, using the powers under the Railway Act which applied to telephones qua railways.
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The CRTC issued an order that said that any public utility which had systems of “support structures” for wires had to make those structures available to telecommunications companies to string their wires. The telecos that got access to those “support structures” by this order had to pay fair compensation to the company that had the “support structures”. (Heck, let’s go with “telephone poles” from now on.)
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Because this was a statutory right by virtue of a CRTC order, the document that assigned rights and responsibilities to the teleco and the owner of the telephone poles was set out in an appendix to the order, to be used by the parties.
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Since the order was issued under the federal statutory authority, it was bilingual, as was the form for the terms of the access to the telephone poles, that later was in issue in Rogers v Bell-Alliant, the comma case.
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Bell-Aliant was a teleco doing business in New Brunswick. It had access to the power poles of New Brunswick power, by an agreement with NB Power.
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Rogers applied to string its wires on the power poles that Bell-Aliant had leased from NB Power. Rogers and Bell-Aliant eventually came to an understanding, as set out in the statutory tariff that the CRTC had issued as part of its order granting access to telephone poles.
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All clear so far?
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“But wait, Professor Piper!” one of you might say, if you’ve been paying attention, “is a power pole the same as a telephone pole?”
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Bonus points for you, bright student! That’s what the Supreme Court of Canada eventually ruled, in an unrelated case. The federal jurisdiction only extends to telecommunications. It does not extend to electrical generating facilities and electrical distribution networks, nor to those “support structures” which we have been referring to by the vernacular, as “power poles”.
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Therefore, the federal CRTC lacked statutory power to order telcos to have access to power poles (provincial). The order had to be read down as only giving a right of access to telephone poles (federal).
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New Brunswick Power, having followed the litigation, immediately advised Bell-Aliant that it had no right to reach an agreement with Rogers for Rogers to string its wires on NB Power’s poles. Eliminating the middle-man, NB Power opened negotiations with Rogers to get that sweet, sweet fee for sharing its power poles.
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“But nooooo!” says Rogers, waving the document (in English) that contained its rights under the former CRTC order. Aliant replies that they’re giving notice of termination under the terms of that document, because they no longer have access to NB Power’s poles.
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Rogers says “But noooo - there’s a comma there that means you can’t end it like this!” (Narrator: and make Rogers pay lots more to NB Power than they were paying to Bell-Aliant.)
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The parties trot off to the CRTC. It rules that as a result of the SCC decision, it no longer has jurisdiction to require Bell-Aliant to grant Rogers access to the power poles owned by NB Power, because “power poles” (provincial jurisdiction) are not “telephone poles” (federal jurisdiction). In the alternative, CRTC rules that the comma doesn’t have the meaning that Rogers is giving it, and Bell-Aliant can properly give notice of termination, since it’s lost access to the power poles.
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Rogers says, “But wait! This isn’t a pure contract, it’s an agreement to comply with the former CRTC ruling, and the French form of the statutory agreement is just as significant!” (even though the document they’ve all been working with is in English). “We’re going to get a copy of the French version!” (Narrator: Why it would take 2 months to get a French version of a federal statutory document is a mystery.)
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Rogers appeals to the Federal Court of Appeal, which dismisses the appeal on jurisdiction: the CRTC correctly ruled that it no longer had jurisdiction over power poles (provincial), so therefore did not have jurisdiction to rule on the dispute. To the extent the CRTC tried to interpret the statutory tariff agreement, it did not have the power to do so, since that no longer applied. The FCA declined to rule on the comma issue.
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“But it’s both a statutory agreement and a contract!” says Rogers, and starts a contract action in the New Brunswick Queen’s Bench against Bell-Aliant. The parties make all sorts of arguments about contract law, and commas, and frustration, but the NBQB rules against Rogers: once the CRTC lost jurisdiction, its order, and the associated statutory agreement, ceased to have legal force, and Rogers had no right to access the power poles. It would have to deal directly with NB Power.
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Rogers appeals to the New Brunswick Court of Appeal, which, in lengthy reasons, says, “Too bad, so sad,” and dismisses Rogers’s appeal. The terms of the statutory tariff agreement, whether in English or French, did not apply, because it no longer governed the relationship between Rogers and Bell-Aliant.
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All of the decisions (SCC, CRTC, NBQB, and NBCA) were bilingual.