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Wind found too foreign by CRTC; overturned by Governor in Council; overturned again by Hon Justice Roger T. Hughes

From the decision found at http://www.scribd.com/doc/48183364/T-26-10-Judgment#:

[48] The next “Whereas” is critical, as it appears to insert a policy objective not found in section 7 or anywhere else in the
Telecommunications Act ; namely, that access to foreign capital technology and expertise should be encouraged and ensured:

(next quotes government's reason for overturning CRTC):

Whereas the Canadian ownership and control requirements of the Act restrict the ownership of voting shares by non-Canadians, but the Act does not impose limits on foreign investment in telecommunication common carriers and should be interpreted in away that ensures that access to foreign capital, technology and experience is encouraged in a manner that supports all of the Canadian telecommunication policy objectives (emphasis added (by judge));

So far, we see that the government, in overturning CRTC and allowing Wind, based that decision on something NOT found in the telecommunications act.

The Governor In Council document that overturned CRTC seems full of holes. Again, from the decision:

The sixth paragraph refers to “Reasons” (not otherwise described or indicated as to where they could be found) which are said to show why Globalive is not considered to be owned and controlled by non-Canadians:

Wow, the judge, when assessing who has "standing" in the case, gives quotations from the first century, Common Era. How often do you see a decision listing precedent 2010 years old?

Anyway, CEO of Public Mobile testified that the order in council (overturning CRTC) didn't change the law, it made an exception for GlobAlive.

That affected Public Mobile's ability to raise money (no doubt!). He could've gone to foreign sources himself, if the law had changed. But he couldn't get financing within Canada to compete evenly with GlobAlive.

Makes sense.

OKAY, FOUND THE MEAT OF THE DECISION, below:

[107] The Governor in Council has in many respects adhered to and acknowledged the Canadian telecommunication policy objectives as set out in section 7 of the Act.

However, the Governor in Council has stepped outside those provisions by inserting a previously unknown policy objective into section 7; namely, that of ensuring access to foreign capital, technology and experience. Secondly it erred by limiting its Decision to Globalive only.

And this:

[113] A decision-maker such as the Governor in Council is not only required to take into consideration the relevant statutory criteria, but also to exclude irrelevant criteria

[118] In the second of the above “Whereas” clauses, the Governor in Council acted outside the legal parameters of the
Act in stating that its Decision impacts only on Globalive. The Governor in Council cannot restrict its interpretation to one individual and not to others who may find themselves in a similar circumstance.

[119] These improper considerations were fundamental to the determination of the Governor in Council to reverse the Decision of the CRTC. Therefore, the Decision of the Governor in Council must be quashed.

There you have it; my summary of why the Governor In Council's decision to overturn the CRTC's decision that Wind is too much foreign influenced was today determined to be incorrect, and the "errors in law" that it contained.

Finally, Public Mobile will be awarded costs.

Comments

It's hard to know who's move it is next. Appeals were spoken of on Wind's Community Blog, and I posted this in response:

Generally, to launch an appeal, you have to pick apart the decision and find something within that can be considered incorrect.

It's pretty clear in the decision, from para 107:

"
However, the Governor in Council has stepped outside those provisions by inserting a previously unknown policy objective into section 7; namely, that of ensuring access to foreign capital, technology and experience. Secondly it erred by limiting its Decision to Globalive only.
"

So, best course of action is for Clemente, as Industry Minister, to come up with a reason to overturn CRTC by:

1) emphasizing other parts of section 7, such as "(c) to enhance the efficiency and competitiveness, at the national and international levels, of Canadian telecommunications;"

and by

2) not restricting their decision to Globalive: "[118] In the second of the above “Whereas” clauses, the Governor in Council acted outside the legal parameters of the Act in stating that its Decision impacts only on Globalive. The Governor in Council cannot restrict its interpretation to one individual and not to others who may find themselves in a similar circumstance."

SINCE the government not only didn't instruct the CRTC to do something serious about the telecomm companies, but instructed them to specifically use "market-based solutions" in their findings (i.e. UBB), it's maybe too late to force the big 3 into competitive policies, to so allowing Wind could be argued to do that.

CRTC should immediately force big 3 to sell unlocked versions of all their phones at full retail prices, and create separate plans for users with their own phones, hence plans NOT inflated to cover cost of "free" phones.

There's a start...