Telus Communications Company v. Canada (Attorney General)

Telus Communications Company v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2014-01-02
Neutral citation
2014 FC 1
File numbers
T-1405-13
Notes
A correction was made on March 19, 2015
Reported Decision
Decision Content
Date: 20140102
Docket: T-1405-13
Citation: 2014 FC 1
Ottawa, Ontario, January 2, 2014
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
TELUS COMMUNICATIONS COMPANY
Applicant
And
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the authority of the Minister of Industry (Minister) concerning the issuance of spectrum licences for the 700 MHz band pursuant to the Radiocommunication Act, RSC, 1985, c R-2 (RA). This application seeks declaratory relief and an order of prohibition and is made pursuant to section 18.1 of the Federal Courts Act, RSC 1985 c F-7 (FCA).
Factual Background
[2] The radio frequency spectrum is divided into bands of frequencies which are designated for use by radiocommunication services, each of which is given a particular priority of access in various bands. The Minister, through the Department of Industry Act, SC 1995 c 1 (DIA), the RA and the Radiocommunication Regulations, SOR/96-484 (the Regulations) and with regard to the objectives of the Telecommunications Act, SC 1993, c 38 (TA), is responsible for spectrum management in Canada. Industry Canada issued a Spectrum Policy Framework for Canada in 1995 with revised or renewed versions following, including one dated June 2007.
[3] The Minister determined that spectrum sufficient to enable wireless network expansion and new broadband technologies would be needed to foster the continued growth of wireless broadband. To that end, he made available spectrum in the 700 MHz band for commercial mobile systems. In anticipation that demand for the highly desired 700 MHz spectrum would exceed supply, the Minister decided that spectrum would be offered by way of an auction as had been previously done. In that regard, the Minister commenced an initial consultation process which culminated in Industry Canada releasing a report on November 30, 2010 entitled “Consultation on a Policy and Technical Framework for the 700 MHz Band and Aspects Related to Commercial Mobile Spectrum” (Consultation). The Consultation addressed specific mechanisms potentially applicable to the 700 MHz auction to promote a competitive marketplace including spectrum aggregation limits (spectrum caps) and set-asides. It also divided Canada into 14 different service areas for auction purposes.
[4] Spectrum caps restrict the amount of spectrum that any eligible bidder can purchase in a particular geographic region. A spectrum cap utilized in a 2001 auction, to ensure that new entrants had access to sufficient spectrum to compete with existing carriers, had resulted in two new licensees.
[5] The Consultation sought industry input with respect to the potential spectrum set asides or caps for licences in the 700 MHz band. Telus, and others, filed submissions in response.
[6] In March 2011, Industry Canada released “A Framework for Spectrum Auctions in Canada.” This stated, amongst other things, that measures available to the government to promote a competitive post-auction market include restricting the participation of certain entities in an auction and/or placing limits on the amount of spectrum that any one entity may hold by using spectrum set-asides or spectrum aggregation limits.
[7] In April 2012, Industry Canada published the “Consultation on a Licensing Framework for Mobile Broadband Services (MBS) 700 MHz” (Consultation, 2012) thereby initiating a consultation on a licensing framework for those services. Industry Canada sought comments on licensing considerations related to auction format, rules and processes, as well as on licence conditions for spectrum in the 700 MHz band. Comments on the proposed wording of licence conditions relating to the spectrum aggregate limits and to transferability and divisibility were sought. Telus and others again filed submissions in response.
[8] In March 2012, Industry Canada released the “Policy and Technical Framework, Mobile Broadband Services (MBS) – 700 MHz Band, Broadband Radio Service (BRS) – 2500 MHz Band” (Policy and Technical Framework). This stated that, through its release, Industry Canada announced the decisions resulting from the prior consultation processes. Industry Canada, amongst other things, stated that it had been determined that targeted measures related to the 700MHz and 2500MHz auctions were required to support the objectives of sustained competition, robust investment, improvement of mobile services in rural areas and public safety and security. Further, that spectrum caps were more appropriate than set-asides.
[9] The decisions on the mechanisms to promote competition in the 700MHz auction were summarized as follows (Section B3 generally, page 29):
B3-1: A spectrum cap of two paired frequency blocks in the 700MHz band (blocks A, B, C, C1 and C2) is applicable to all licences.
B3-2: A spectrum cap of one paired spectrum block from within blocks B, C, C1 and C2 is applicable to all large wireless service providers. Large wireless service providers are defined as companies with 10% of more of national wireless subscriber market share, or 20% or more wireless subscriber market share in the province of the relevant licence area.
B3-3: Unpaired blocks D and E in the Lower 700 MHz band are not subject to a spectrum cap.
…
B3-6: The spectrum caps put in place for the 700 MHz auction will continue to be in place for five years following licence issuance. Therefore, no transfer of licences or issuance of new licences will be authorized if it allows a licensee to exceed the spectrum cap during this period.
[10] In March 2013, Industry Canada released the “Licensing Framework for Mobile Broadband Services (MBS) 700 MHz Band” (Licensing Framework) which stated that it was thereby announcing the decisions resulting from its prior consultation on that topic. The Licensing Framework was described as a companion document to the Policy and Technical Framework. It set out the rules and procedures for participation in the competitive licensing process for spectrum in the 700 MHz band including details of the auction format and rules, the application process and timelines and the conditions on licences that will apply. It noted that policy decisions relating to the licencing process for spectrum in the 700 MHz band were announced in the Policy and Technical Framework and that the licences to be auctioned would be consistent with those decisions.
[11] The decision as to the wording for the relevant conditions of licence, which had been commented on by Telus, was set out as follows:
The licensee must comply with the spectrum aggregation limits as follows:
• A limit of two paired spectrum blocks in the 700 MHz and within blocks A, B, C, C1 and C2 is applicable to all licences;
• A limit of one paired spectrum block within blocks B,C, C1 and C2 is applicable to all licences which are large wireless service providers. Large wireless service providers are defined as companies with 10% or more of the national wireless subscriber market share, or 20% or more of the wireless subscriber market share in the province of the relevant licence area…
These spectrum aggregation limits will continue for five years from the date of licence issuance. No transfer of licence of issuance of new licences will be authorized if it would result in a licensee exceeding in spectrum aggregation limits during this period. ….
[12] Telus, a large wireless service provider as defined in the Policy and Technical Framework, is affected by these decisions and conditions because the result of the auction process will be that it will not be issued licences for more than one block of spectrum in blocks B, C, C1 and C2.
[13] Telus submits that these two conditions, or decisions as they are described in the Policy and Technical Framework and the Licensing Framework, are in fact eligibility criteria. However, that the Minister has no authority to apply any criteria other than those prescribed in the Regulations in determining the eligibility of Telus or others who seek to be issued licences pursuant to the RA. The Minister has therefore exceeded his jurisdiction and his decisions are unlawful.
[14] The auctioning of the 700 MHz band, in which Telus intends to participate, is scheduled to take place on January 14, 2014. Accordingly, Telus sought to have its application for judicial review heard on an expedited basis.
Legislative Background
[15] As the issue on this application concerns statutory interpretation regarding the scope of the Minister’s authority, the relevant legislative provisions are reproduced in whole in Annex A of this decision and are summarized below.
The RA
[16] Sections 2, 5(1), 5(1.1), 5(1.2), 5(1.4) and 6(1)(b) of the RA are relevant to this proceeding. Section 2 defines “radio authorization” as a licence, certificate or authorization issued by the Minister under paragraph 5(1)(a). Section 5(1) confers authority on the Minister, subject to any regulations made pursuant to section 6, to issue radio licences (s. 5(1)(a)(i)) and spectrum licences (s. 5(1)(a)(i.1)) and to fix the terms and conditions thereof (s. 5(1)(a)(v)) as well as to plan the allocation and use of the spectrum (s. 5(1)(e)) and do any other thing necessary for the administration of the RA (s. 5(1)(n)). In addition, section 5(1.1) states that in exercising his section 5(1) powers the Minister may have regard to the objectives of the Canadian telecommunications policy as set out in section 7 of the TA. Section 5(1.2) states that in exercising his section 5(1)(a) powers to issue radio authorizations the Minister may use a system of competitive bidding to select the persons to whom they will be issued. Section 5(1.4) provides that the Minister may establish procedures, standards and conditions, including bidding mechanisms, minimum bids, bidders' qualifications, acceptance of bids, and others, in regard to a system of competitive bidding to select the persons to whom radio authorization will be issued.
[17] Section 6(1)(b) of the RA confers on the Governor-in-Council the authority to make regulations prescribing the eligibility of persons to whom radio authorizations may be issued. As stated above, by definition, radio authorizations include both radio licences and spectrum licences. The Regulations are silent with respect to spectrum licence eligibility.
The Regulations
[18] The Governor-in-Council has exercised its regulatory authority by promulgation of the Regulations. Part I of the Regulations concerns radio licences and provides the principal terms of such licences, including restriction in use, eligibility requirements, assignability and exempted radio apparatus. Section 9(1) identifies persons eligible to be issued radio licences as radio communication users or service providers and concerns citizenship or residency status of individuals, corporate status of Canadian companies, participants in partnerships or joint ventures, governments, ship and aircraft owners and others. Section 10(1) identifies persons eligible to be issued radio licences as radio communication carriers and concerns the status of individuals, partnerships or joint ventures, government and corporations in the context of Canadian ownership and control.
The DIA
[19] Sections 4(1) and 5 of the DIA are also relevant to this proceeding. Subsection 4(1) sets out the Minister’s powers, duties and functions and provides that these extend to and include all matters over which Parliament has jurisdiction “not by law assigned to any other department, board or agency of the Government of Canada” relating to telecommunications (s.4(1)(k)). Section 5 sets out the objectives which guide the exercise of Ministerial authority under section 4(1) including the promoting of the establishment, development and efficiency of Canadian communications systems and facilities and the assisting in the adjustment to changing domestic and international conditions (s. 5(g)), stimulating investment (s. 5(h)), and promoting the interests and protection of Canadian consumers (s. 5(i)).
The TA
[20] Section 7 of the TA sets out the Canadian telecommunications policy objectives. Section 16 describes the eligibility requirements for operating as a telecommunications common carrier and section 22(1) provides the Governor-in-Council’s regulatory authority in relation to Canadian carriers’ eligibility, under section 16, to operate as telecommunications common carriers.
Issues
[21] The Applicant states that the sole issue in this application is whether the Minister has the jurisdiction to prescribe criteria for the eligibility of persons to be issued spectrum licences and to fix terms and conditions for such licences that include eligibility criteria, other than those prescribed by the Governor-in-Council.
[22] The Respondent states the issues as follows:
• Is the application out of time?
• What is the applicable standard of review?
• Was the Minister’s decision reasonable?
[23] As is apparent, the parties have significantly diverged in their framing of the major issue in this application, with the Applicant framing it as a jurisdictional issue while the Respondent sees it as a question of the reasonableness of the Minister’s decisions. In my view, the issues are properly framed as follows:
1. Is this application out of time pursuant to subsection 18.1(2) of the FCA?
2. What is the applicable standard of review?
3. Did the Minister act outside his authority in prescribing the subject conditions for the issuance of spectrum licences for the 700 MHz frequency band?
Issue 1: Is this application out of time pursuant to subsection 18.1(2) of the FCA?
Respondent’s Submissions
[24] The Respondent submits that Applicant is challenging a discrete Ministerial policy decision to which the 30 day time limit imposed by section 18.1 of the FCA applies and, therefore, that the application should be dismissed as it was brought out of time.
[25] The Applicant learned of the Minister’s policy decision to use a spectrum cap system in March of 2012 by way of the Policy and Technical Framework and again in March 2013 by the Licensing Framework. Although the Applicant could have initiated the application for judicial review at that time it chose not to do so until some seventeen months later, in August of 2013, and is therefore wholly out of time. The decision at issue is not an ongoing “course of conduct” or an evolving policy scheme (Apotex Inc v Canada (Minister of Health), [2011] FCJ No 1593 (QL) at para 20 (TD), aff’d 2012 FCA 322 at para 8 [Apotex 2012]; Canada (Attorney General) v Trust Business Systems, 2007 FCA 89 at para 20 [Trust Business]). It is one of a set of specific policy decisions, made at fixed points in time, that include, among other things, how the auction on January 14, 2014 will be conducted. The Applicant injects uncertainty into the auction and undermines the purposes of section 18.1(2).
Applicant’s Submissions
[26] The Applicant submits that no decision has been reached in this case yet nor will there be until the results of the auction are known and the Minister decides to whom licences will be issued. Thus, the application is not in respect to a particular “decision” pursuant to section 18.1(2) of the FCA. Rather, it is in respect of a “matter” under section 18.1(1) of the FCA being the Minister’s policy of refusing to issue spectrum licences authorizing the use of a second block of spectrum to large wireless service providers. The 30 day limitation period contained in section 18.1(2) does not apply to an application concerning a challenge to the legality or jurisdiction to create an ongoing policy (Apotex v Canada (Minister of Health), 2010 FC 1310 at para 10 [Apotex]; Airth v Canada (National Revenue), 2006 FC 1442 at paras 9-10 [Airth]; Sweet v R, (1999) 249 NR 17, [1999] FCJ No 1539 (QL) at para 11 (CA) [Sweet]; May v CBC/Radio Canada et al, 2011 FCA 130 at para 10 [May]; Krause v Canada, [1999] 2 FC 476, [1999] FCJ No 179 (QL) (CA) [Krause]).
[27] Further, if the Applicant waits until the auction to receive a decision on the issuance of licences and then applies for judicial review of that decision this would cast doubt on the validity of the auction and, based on May, above, it is uncertain that an expedited hearing would be permitted.
Analysis
[28] Section 18.1 of the FCA states that an application for judicial review may be made by the Attorney General or by anyone directly affected by the “matter” in respect of which relief is sought. Section 18.1(2) states that an application for judicial review “in respect of a decision or an order” of a federal board, commission or other tribunal shall be made within 30 days of communication of the decision.
[29] Accordingly, where the subject matter of a judicial review is a “matter”, rather than a “decision or order,” the 30 day time limit does not apply (Krause, above, at para 23; Airth, above, at paras 5, 10). Therefore, the question is whether the Applicant is seeking judicial review of a decision or of a matter.
[30] Both the Policy and Technical Framework and the Licensing Framework describe the determinations of the Minister as “decisions.” The Respondent, in its submissions, describes the Minister’s determinations as policy decisions.
[31] In Krause, above, the Federal Court of Appeal held that the time limit imposed by subsection 18.1(2) did not bar the applicants from seeking relief by way of mandamus, prohibition and declaration. In that case, while there was a general decision to adopt the 1988 recommendations of the Canadian Institute of Chartered Accountants and to implement those recommendations in each of the following fiscal years, that general decision was not what was being challenged. Rather, the acts of the responsible Ministers in implementing that decision were alleged to be invalid or unlawful. The Court stated the following:
[23] …The charge is that by acting as they have in the 1993-1994 and subsequent fiscal years the Ministers have contravened the relevant provisions of the two statues thereby failing to perform their duties, and that this conduct will continue unless the Court intervenes with a view to vindicating the rules of law…
[24] I am satisfied that the exercise of the jurisdiction under section 18 does not depend on the existence of a “decision or order”. In Alberta Wilderness Assn v. Canada (Minister of Fisheries and Oceans), Hugessen J. was of the view that a remedy envisaged by that section “does not require that there be a decision or order actually in existence as a prerequisite to its exercise”. In the present case, the existence of the general decision to proceed in accordance with the recommendations of the Canadian Institute of Chartered Accountants does not, in my view, render the subsection 18.1(2) time limit applicable so as to bar the applicants from seeking relief by way of mandamus, prohibition and declaration. Otherwise, a person in the position of the applicants would be barred from the possibility of ever obtaining relief under section 18 solely because the alleged invalid or unlawful act stemmed from a decision to take the alleged unlawful step. That decision did not of itself result in a breach of any statutory duties. If such a breach occurred it is because of the actions taken by the responsible Minister in contravention of the relevant statutory provisions.”
[32] The Respondent submits that Krause, unlike this situation, was not a direct challenge to a decision. Further, unlike Krause, this is not a situation of an ongoing course of conduct. On the other hand, the Applicant submits that Krause is an example of an ongoing course of conduct as is the situation in this case. Further, as stated by the Federal Court of Appeal in Moresby Explorers Ltd v Canada (Attorney General), 2007 FCA 273 at para 24 [Moresby], it stands for the proposition that, “because illegality goes to the validity of the policy rather than to its application, an illegal policy can be challenged at anytime; the claimant need not wait till the policy has been applied to his or her specific case.”
[33] Sweet, above, concerned a policy of involuntary “double-bunking” in a correctional institution. There, the Federal Court of Appeal stated the following:
[11] What the appellant is attacking is not so much the decision of the Correctional Service of Canada ("the Service") to force him to share a cell, as much as the policy of double-bunking in itself. The thrust of the appellant's argument is that the policy of double-bunking, which affects the appellant and many other inmates, should be declared invalid. That policy is an on-going one which may be challenged at any time; judicial review, with the associated remedies of declaratory, prerogative and injunctive reliefs, is the proper way to bring that challenge to this Court (see Krause v. Canada, [1999] 2 F.C. 476 (F.C.A.)).
[34] In Apotex, above, at para 10, Justice Pinard, in referring to Airth, above, held that a matter is distinguished from a decision or order by considering whether what is at issue is a “singular decision” or instead “part of a course of conduct, all of which the Applicant challenges.” Justice Pinard recognized that the applicant therein was seeking relief arising out of a number of decisions and other conduct of the same decision-maker, operating under the same statute and arising out of the same factual matrix. While it was a debatable issue as to whether the applicant’s attack was on a decision or a matter, Justice Pinard found that this ought to be determined by the applications judge.
[35] Subsequently, Justice Barnes dismissed the application on the basis that it was made in an untimely manner (Apotex Inc v Canada (Health), 2011 FC 1308) and, in doing so, he distinguished Krause, above finding that it was concerned with the lawfulness of implementing policy on an ongoing basis. The case before him involved a challenge to three distinct administrative decisions. Justice Barnes stated the following:
[19] In Manuge, above, I made a similar point in the following passage:
17 There is no question that much of what was of concern to the Court in Grenier and in its earlier decisions in Tremblay v. Canada, 2004 FCA 267, 2004 FCA 267, [2004] 4 F.C.R. 165 and in Budisukma Puncak Sendirian Berhad v. Canada, 2005 FCA 267, 338 N.R. 75, had to do with the desire for finality around administrative decisions and to ensure that appropriate deference was accorded to the decision maker (see, for example, paras. 27 to 30 in Grenier). The Court was also rightfully concerned about a process which would allow a party to collaterally attack a decision well beyond the 30-day time limit for bringing an application for judicial review. All of these are concerns that carry much less significance in a case where the challenge is limited to the lawfulness of a government policy and where the application of that policy has on-going implications for the party affected. It is also perhaps noteworthy that in Grenier, Tremblay and Berhad, the Court's discussion of these policy considerations invariably referred to the lawfulness of the underlying decisions and no explicit reference was made to challenges to government policy, legislation, or conduct. In Tremblay, the Court also noted "the fine line that exists between a judicial review and a court action" where extraordinary remedies are sought.
[36] Justice Barnes held that allowing Apotex to avoid the 30-day filing requirement would open the door to a multitude of similar belated applications and thereby effectively extinguish the time limit requirement. It would also sidestep the need for finality for discrete administrative decisions which were, as in that case, directly attacked as unlawful. He found that Apotex’s position was no more than a colourable device intended to permit it to avoid violating both the letter and the spirit of section 18.1(2) of the FCA and Rule 302 of the Federal Courts Rules, SOR/98-106.
[37] The Applicant relies heavily on the decision in May, above. There, Elizabeth May, then leader of the Green Party, commenced an application for judicial review of a Canadian Radio-television and Telecommunications Commission’s (CRTC) Broadcast Information Bulletin issued pursuant to the Canada Elections Act. The Bulletin required the CRTC to issue, within 4 days of the election writ being dropped, a set of guidelines pertaining to the applicability of the Broadcasting Act and its Regulations to the conduct of broadcasters during a general election. The Bulletin referred to the CRTC’s 1995 Guidelines to the effect that not all party leaders need be included in the leaders’ debates, as long as equitable coverage of all parties is provided. Ms. May submitted that the Bulletin was ultra vires the CRTC’s powers. The issue before the Federal Court of Appeal was whether to allow Ms. May’s motion for an expedited hearing of the judicial review.
[38] Ms. May argued that she had no choice but to seek urgent relief because the administrative action affecting her rights, the Bulletin, was issued only after the election writ was dropped. If she had brought her application earlier, it would have been premature, and if the hearing were not expedited, it would be moot. Put otherwise, she submitted that the Bulletin was a decision or order within the meaning of subsection 18.1(2) and that judicial review was impossible until such a decision or order had been made.
[39] The Federal Court of Appeal did not agree with Ms. May’s position and ultimately dismissed her motion:
[10] This argument, in my respectful view, is wrong. While it is true that, normally, judicial review applications before this Court seek a review of decisions of federal bodies, it is well established in the jurisprudence that subsection 18.1(1) permits an application for judicial review “by anyone directly affected by the matter in respect of which relief is sought”. The word “matter” embraces more than a mere decision or order of a federal body, but applies to anything in respect of which relief may be sought: Krause v. Canada, [1999] 2 F.C. 476 at 491 (F.C.A.). Ongoing policies that are unlawful or unconstitutional may be challenged at any time by way of an application for judicial review seeking, for instance, the remedy of a declaratory judgment: Sweet v. Canada (1999), 249 N.R. 17.
[11] Here the impugned CRTC Bulletin contains a reference to the Guidelines, which contain the same impugned rule. In fact, the same impugned rule has applied to leaders’ debates in federal elections since 1995. As such, it qualifies as an “ongoing policy” that could have been and can be challenged at any time by the applicant. Consequently, the applicant did into need to wait until the Bulletin for the 2011 general election was issued to bring her application.
[40] In Fisher v Canada (Attorney General), 2013 FC 1108 (Fisher), an amendment was passed requiring offenders on parole-reduced status to comply with paragraph 161(1)(a) of the Corrections and Conditional Release Regulations, from which they had been previously exempt by virtue of subsection 133(6) of the Corrections and Conditional Release Act. The applicant alleged that the practical effect of the amendment was that it granted his parole officers the discretion to change his terms of parole and also meant that the applicant had to report in person every three months. With respect to the timeliness of his application for judicial review, Justice Russell agreed with the applicant that the amendment was more in the nature of an ongoing policy that was unlawful and unconstitutional and which may be challenged at any time by way of an application for judicial review. In that case, at issue were the acts done in implementing the decision.
[41] In the present application for judicial review, the Applicant’s stated challenge is that the Minister does not have the legal authority to make decisions or impose spectrum licence conditions which, the Applicant submits, have the effect of prescribing eligibility criteria in respect of the granting of those licences. The Applicant seeks relief in the nature of a declaration and a prohibition order.
[42] The Minister’s decision to attach the subject conditions on any spectrum licences that large wireless service providers may ultimately successfully bid on was made through the Policy and Technical Framework and restated in the Licensing Framework. The Licensing Framework states that the “conditions will apply to all licences issued through the auction process for spectrum in the 700 MHz band”. Therefore, in my view, these are decisions which will be unaffected by the ultimate auction process. To that extent, those decisions have been made and they are discrete. They apply to specific spectrum access in specific geographic areas for specific time periods. However, they were made within the context of the Policy and Technical Framework and, therefore, form part of a policy which is ongoing. By issuing the licences with the attached conditions, the Minister will be acting upon policy.
[43] Given this, and based on Moresby, above, which interpreted Krause to stand for the proposition that “because illegality goes to the validity of the policy rather than to its application, an illegal policy can be challenged at anytime…,” and the broad definition given to the term “matter” in May, I have concluded that the present issue falls within section 18.1 and therefore the 30 day limit has no application.
Issue 2: What is the standard of review?
Applicant’s Submissions
[44] The Applicant submits that the standard of review is correctness because the dispute in this case involves a true question of vires, concerning the drawing of a jurisdictional line between two competing entities which are the Minister and the Governor-in-Council. The Minister does not have legal expertise superior to that of a Court in respect of jurisdictional delineation (Smith v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 SCR 160 at para 26 [Alliance]; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Federation, 2011 SCC 61, [2011] 3 SCR 654 at paras 30-31 [Alberta Teachers]; Bell Canada v Canada (Attorney General), 2011 FC 1120 at para 16; Goodwin v Canada (Attorney General), 2005 FC 1185 at paras 22-24).
Respondent’s Submissions
[45] The Respondent submits that the Minister’s decision is a mixed question of fact, discretion, and policy such that deference will usually apply automatically (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paras 46-47, 53, 62-64 [Dunsmuir]). Other than in exceptional circumstances, the interpretation by a tribunal of its own statute or statutes closely connected to its function are presumed to be questions of statutory interpretation and subject to deference (Alberta Teachers, above at paras 30, 34 and 39). The Respondent submits that there are in fact two decisions of concern in this application: the Minister’s interpretation of his “home” and closely connected statutes, and, the Minister’s decision to use a spectrum cap.
[46] The Minister interpreted his powers to include the ability to define measures to promote a competitive post-auction marketplace by use of a spectrum cap system. This situation is not unlike the situation in Agraira v Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 at paras 48-50. The Minister’s decision to use a spectrum cap is a pure policy decision and, therefore, it can only be challenged on limited grounds (Moresby, above, at para 24).
[47] Further, if the Applicant seeks to invoke a true question of jurisdiction, it is required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness (Alberta Teachers, above at paras 46-47).
Analysis
[48] The first step in determining the appropriate standard of review is to ascertain whether existing jurisprudence has already resolved, in a satisfactory manner, the degree of deference to be afforded a particular category of question. If it has not, then the Court must engage the second step, which is to determine the appropriate standard having regard to the nature of the question, the expertise of the tribunal, the presence or absence of a privative clause, and the purpose of the tribunal (Dunsmuir, above, at paras 51-64; Agraira, above, para 48).
[49] The Notice of Application challenges the Minister’s authority to prescribe eligibility criteria for persons seeking to be issued spectrum licences for the 700 MHz band. This authority involves interpreting the provisions of the RA, the Regulations and the provisions of the closely related DIA and the TA. As there is no jurisprudence directly on point considering the applicable standard of review, this Court must follow the second stage analysis of Dunsmuir, above.
[50] As is apparent from the parties’ submissions, the crux of the question of the standard of review applicable to this matter is the nature of the question that is before this Court.
[51] There is clear authority that “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (Dunsmuir, above, at para 54; Alliance, above, at para 28). This principle applies unless the interpretation of the home statute falls into one of the categories of questions to which the correctness standard continues to apply. As the Supreme Court of Canada stated in Alliance, above:
[26] Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’” (Dunsmuir, at para. 60 citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a “true question of jurisdiction or vires” (paras. 58-61). On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54).
(See also: Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53, [2011] 3 SCR 471 at para 18; Dunsmuir, above, at paras 58, 60-61).
[52] In Alberta Teachers, above, Justice Rothstein, writing for the majority, noted that the “true questions of jurisdiction” category “has caused confusion to counsel and judges alike.” He found that he was unable to define a true question of jurisdiction, but stated:
[39] What I propose is, I believe, a natural extension of the approach to simplification set out in Dunsmuir and follows directly from Alliance (para. 26). True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness.
[53] At paragraph 42, Justice Rothstein further stated that, “The practical approach is to direct the courts and counsel that at this time, true questions of jurisdiction will be exceptional and, should the occasion arise, to address in a future case whether such category is indeed helpful or necessary.” Alberta Teachers involved the issue of interpreting section 50(5) of the Personal Information Protection Act, the Information and Privacy Commissioner’s home statute. Specifically, whether an inquiry automatically terminated as a result of the Commissioner extending the 90 day period only after the expiry of that period. The Court found that the issue did not fall into any of the categories to which the correctness standard applied. The Commissioner was interpreting his own statute and the reasonableness standard applied. In my view, that case can be distinguished because the interpretation issue there did not involve a clear question of jurisdiction as between two entities with authority to administer the same statute as in this situation as regards to the Minister and the Governor-in-Council.
[54] It is of note that subsequent to Alberta Teachers’, true questions of jurisdiction pertaining to the interpretation of a tribunals’ or Minister’s home statute have continued to be identified by the Courts. One of these cases is Canada (Fisheries and Oceans) v David Suzuki Foundation, 2012 FCA 40. There, Justice Mainville found that the question raised by that appeal, which involved the meaning of the words “legally protected by provisions in, or measures under, this or any other Act of Parliament” found in subsection 58(5) of the Species At Risk Act (SARA), was a question of statutory interpretation, and was to be reviewed on a correctness standard. He did not accept the Minister’s submission that a presumption of deference applied because the Minister was interpreting a provision of his home statute or statutes closely connected to its functions.
[55] Justice Mainville found that the following factors leaned towards a correctness standard:
• there was no privative clause in the statutes before him including the Fisheries Act;
• there was indication in the SARA that Parliament had greatly restricted the Minister’s discretion;
• the Minister acted in an administrative capacity, and not as an adjudicator under the provision at issue;
• the question in issue was one of statutory interpretation which the courts were best equipped to answer in the circumstances of that case; and
• while the Minister had expertise in fisheries, this did not necessarily confer special legal expertise to interpret the statutory provisions of the SARA or of the Fisheries Act.
[56] And, in the recent decision of Clare v Canada (Attorney General), 2013 FCA 265, the Court found that whether or not the Canadian Agricultural Review Tribunal had the legal authority to grant an extension of time for requesting a review of a violation issued by the Canadian Food Inspection Agency is a question of statutory interpretation and that:
[10] This Court has established that the standard of review applicable to questions of statutory interpretation made by the Tribunal is correctness: Doyon v. Canada (Attorney General), 2009 FCA 152 (CanLII), 2009 FCA 152 at paragraphs 30-32 (Doyon); Canada (Attorney General) v. Porcherie des Cèdres Inc., 2005 FCA 59 (CanLII), 2005 FCA 59 at paragraph 13; Canada (Canadian Food Inspection Agency) v. Westphal-Larsen, 2003 FCA 383 (CanLII), 2003 FCA 383 at paragraph 7 (Westphal-Larsen).
[57] Recently, in McLean v British Columbia (Securities Commission), 2013 SCC 67 [McLean], the Supreme Court of Canada found that a reasonableness standard applied to the question of determining, for the purposes of section 161(6)(d) of the Securities Act, “the events” that trigger the six-year limitation period in section 159. The Court found that the presumption of deference to an administrative decision maker’s interpretation of its home statute or statutes closely connected to its function had not been rebutted. There, i