ROGERS COMMUNICATIONS PARTNERSHIP Plaintiff - v. -, 2015 NBQB 205

S/C/290/08 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF SAINT JOHN Citation: Rogers Communications Partnership v. Bell Aliant Regional Communications, Limited Partnership – 2015 NBQB 205 Date : 2015 11 04 BETWEEN: ROGERS COMMUNICATIONS PARTNERSHIP Plaintiff - and - BELL ALIANT REGIONAL COMMUNICATIONS, LIMITED PARTNERSHIP Defendant BEFORE: Justice William T. Grant HEARING HELD: Saint John DATE OF HEARING: May 11, 2015 DATE OF DECISION: November 4, 2015 COUNSEL: Tim Pinos for Rogers Communications Partnership Daniel M. Campbell, Q.C. and Rebecca M.

Atkinson for Bell Aliant Regional Communications, Limited Partnership DECISION GRANT, J [ 1 ] In this action the plaintiff (“Rogers”) claims damages of $2,000,000.00 for breach of contract plus a declaration that the defendant (“Bell Aliant”) is liable to indemnify Rogers for any amount it is liable to pay to any third party as a consequence of Bell Aliant’s breach of contract.

[ 2 ] The action arises out of a “forced marriage” between the parties which has broken down as a result, inter alia , of unforeseen circumstances created by neither of them and which has given rise to seemingly irreconcilable differences. All attempts to resolve these differences to date have produced what counsel for the defendant, Bell Aliant, has called a “dialogue of the deaf”. [ 3 ] The parties have submitted all the evidence necessary to decide this case in an Agreed Statement of Facts including 28 documents. Those agreed facts, with references to attachment of the documents omitted, read as follows: 1.

Rogers Communications Partnership (“Rogers”) is the successor to Rogers Cable Inc. It acquired the facilities and broadcast distribution licenses (cable television licenses) of former operators in New Brunswick in 2000. At times material to this action, Rogers provided broadcasting distribution (i.e., cable television) services and telecommunication services to most populated areas of New Brunswick. 2. Bell Aliant Regional Communications, Limited Partnership (“Bell Aliant”) is the successor to The New Brunswick Telephone Company, Limited and NBTel Inc.

At times material to this action, it provided telecommunication services, including public switched network services, internet services, other communication services, and broadcast distribution services throughout the populated areas of New Brunswick. Bell Aliant is the “incumbent local exchange carrier” in all areas of New Brunswick. 3. New Brunswick Power Corporation (“NB Power”) is the successor to the New Brunswick Power Distribution and Customer Service Corporation and the New Brunswick Electric Power Commission.

It is a provincial crown corporation providing electrical utility services in most populated areas of New Brunswick, and providing wholesale electric service to local electric distribution utilities in the remaining populated areas of New Brunswick. Support Structures 4. Bell Aliant and NB Power construct and own support structures (for this [sic] purposes of this action, poles) for their wires, lines, and cables. In areas where they both have facilities, they frequently share their poles under a joint-use agreement. 5.

Under joint-use agreements, the electric and telecommunications utilities agree to construct poles which can accommodate the wires and cables of both types of utilities, with the upper portions of the pole being reserved for electric transmission and distribution lines (the “power space”), and the lower portions of the poles being reserved for telecommunications lines (the “telecommincations space”), leaving an appropriate space between for reasons of electrical safety. 6. At times material to this action NB Power and Bell Aliant were parties to: (

a) a Joint Use Agreement dated July 11, 1996. … (

b) a Joint Sub-agreement: Support Structure Sharing dated July 11, 1996. … (

c) a Joint Sub-Agreement: Support Structure – Third Party Attachments dated July 11, 1996. … 7. The Third Party Attachment Sub-Agreement provided for use by broadcast distribution companies and other telecommunications companies of the telecommunications space on joint-use poles. 8. The agreements referred to in paragraph 6 succeeded agreements between NB Power and Aliant which were entered into in 1967. …

9. For the most part, Rogers does not own support structures in New Brunswick. Rather, it accesses to [sic] the supportstructures of Bell Aliant, NB Power, and other utilities, for the support of its broadcast distribution and telecommunicationsfacilities. 10. Prior to 2004, Bell Aliant issued permits to Rogers and its predecessors for both its joint-use poles as well as for thoseowned by NB Power. As described below, the rate charged by Bell Aliant to access a pole was set by the CRTC. NB Poweraccepted the CRTC-set rate until 2004.

When it acquired its cable television business in New Brunswick, Rogers acquired therights to permits previously issued by Bell Aliant to its predecessors. 11. The terms of the agreements between NB Power and Bell Aliant referred to in paragraph 6 were not disclosed to Rogers orits predecessors prior to December 2, 2004. Regulation 12. At all times material to this action, Bell Aliant, as a telecommunications carrier, was subject to regulation by the CanadianRadio-television and Telecommunications Commission (“CRTC”) pursuant to the Telecommunications Act.

Alltelecommunications services must be offered in accordance with conditions imposed by the CRTC or set out in a tariff approvedby the CRTC unless the CRTC has granted forbearance from regulation. 13. Before 1990 Bell Aliant had been regulated in New Brunswick under the New Brunswick Public Utilities Act. Following thedecision of the Supreme Court of Canada in Alberta Government Telephones v.

Canada (Canadian Radio-television andTelecommunications Commission), (SCC), [1989] 2 S.C.R. 225, Bell Aliant came under the jurisdiction of theCRTC pursuant to federal legislation (initially under the Railway Act and, since 1993, under the Telecommunications Act). 14. The CRTC determined that access by broadcasting distribution undertakings or competitive telecommunications carriersto the support structures of incumbent local exchange carriers such as Bell Aliant is a telecommunication service, subject toregulation under the Telecommunications Act, designated as Support Structure Service. 15.

As part of the regulation of the Support Structure Service, the CRTC issued decisions which set the rates which could becharged by incumbent carriers and the terms and conditions of the service. 16. As part of the process the CRTC, under Telecom Order 96-1484 … required the incumbent carriers, including Bell Aliant,and the cable television companies, including Rogers, to negotiate a model tariff and accompanying support structure agreementfor submission to the Commission for approval. 17.

By Telecom Order 2000-13 … the CRTC approved the National Support Structures Tariff and a form of SupportStructure License Agreement. This Order accepted and approved the terms that had been agreed to and resolved the items uponwhich the telephone companies and the cable companies had been unable to agree. … The form of Support Structure LicenseAgreement prescribed by the CRTC in Telecom Order 2000-13 included a five-year renewable term, which had not been part ofthe previous tariffs relating to Support Structure Service. Support Structure Agreement 18.

On May 31, 2002, Bell Aliant and Rogers signed a Support Structures License Agreement in the prescribed form, pursuantto Item 901.3(

a) of the Tariff. …

Termination of Agreements; Subsequent Proceedings 19. The CRTC proceedings referenced above did not apply to electrical utilities and their support structures. In 1999, theCRTC first asserted jurisdiction over electrical utilities for the purpose of determining the rates and terms of access applicable tothe utilities’ support structures for broadcast distribution undertakings and telecommunications carriers. 20. A number of electrical utilities challenged this decision, and the matter was ultimately resolved by the Supreme Court ofCanada in Barrie Public Utilities v.

Canadian Cable Television Assn., 2003 SCC 28 , [2003] 1 SCR 476, in which it wasdecided that the CRTC did not have the jurisdiction to regulate access to electric utility poles by broadcast distributionundertakings and telecommunications carriers. 21. On January 30, 2004, NB Power gave notice to Bell Aliant that it would terminate the Third Party Attachment Sub-Agreement and resume responsibility for billing third parties on joint use poles owned by NB Power. … 22.

By letter dated April 23, 2004 … NB Power advised Rogers that it intended “to move forward with a legal agreement andfee structure that clearly defines the relationships and appropriately recovers costs associated with Third Party attachments.” 23. This letter was followed by correspondence among Rogers, Bell Aliant and NB Power: (

a) May 3, 2004 from Rogers to NB Power: … (

b) June 9, 2004 from NB Power to Rogers: … (

c) September 15, 2004 from Rogers to NB Power: … (

d) October 20, 2004 from NB Power to Rogers: … (

e) October 27, 2004 from Bell Aliant to Rogers: … (

f) November 23, 2004 from NB Power to Bell Aliant: … (

g) December 20, 2004 from Rogers to NB Power: … (

h) January 21, 2005 from NB Power to Rogers: … (

i) January 31, 2005 from Bell Aliant to Rogers: … (

j) February 18, 2005 from Rogers to Bell Aliant: … 24. Following this, Rogers was unable to negotiate acceptable attachment terms with NB Power. Rogers applied to the NewBrunswick Board of Commissioners of Public Utilities (the “Public Utilities Board”) to have the rate for third party attachmentto support structures of NB Power (including joint-use poles owned by NB Power) set by the Board. …

25. The decision of the New Brunswick Public Utilities Board establishing a rate for third-party attachment in the telecommunications space of joint use poles was issued June 19, 2006, with effect on August 1, 2006. … 26. Rogers continued to pay the rate per pole set in the Support Structure Service Tariff during the negotiations with NB Power and the proceedings before the NB Public Utilities Board. Rogers began paying the rate approved by the NB Public Utilities Board as of August 1, 2006. 27.

The amounts paid by Rogers beginning August 1, 2006 until the expiration of the initial five year term of the SSA on May 31, 2007, are set out in the table at Tab 23. 28. Rogers challenged the right of Bell Aliant to terminate the SSA in whole or in part, or to cease providing support structures services on the joint-use poles owned by NB Power in applications to the CRTC in an initial application and three subsequent applications to the CRTC to review and vary the previous decisions. … 29. Rogers appealed to the Federal Court of Appeal from Telecom Decision CRTC 2009-187.

A copy of the decision of the Federal Court of Appeal dismissing the appeal is provided. … The parties agree that the facts as set out in this Agreed Statement of Facts are true for all purposes of this action, and that the documents attached may be admitted in evidence without further proof.

The parties reserve the right to make submissions with respect to the relevance or materiality of any fact or document. [ 4 ] As indicated in paragraph 27 of the Agreed Statement of Facts, supra. , the parties do not dispute the amount of the difference paid by Rogers after August 1, 2006 - $751,169.60 – though Rogers’ claim is for general damages of $2,000,000.00 for breach of contract.

What they do dispute is whether or not Bell Aliant is liable to Rogers. [ 5 ] The license agreement signed by the parties on May 31, 2002 (“the SSA”) (see paragraph 18 of the Agreed Statement of Facts, supra. ) is at the heart of this dispute since it was the agreement that was in effect between the parties when NB Power decided in 2004 that it would terminate its Third Party Attachment Sub-Agreement with NB Tel (later Bell Aliant) dated July 11, 1996. There is no suggestion by the parties to this action that NB Power was not acting in accordance with the terms of that sub-agreement when it did so. Where they

part company, however, is on the issue of the impact of NB Power’s termination of the sub-agreement on the SSA, i.e. Bell Aliant says that it terminated the SSA while Rogers says that Bell Aliant’s obligations under the SSA remained in effect for the duration of that agreement. [ 6 ] In this action the parties have raised the following issues: (

a) Is the SSA a contract? (

b) If the SSA is a contract, does the doctrine of frustration apply? (

c) If it is a contract and frustration does not apply, how is its termination clause to be interpreted? (

d) If it is a contract and frustration does not apply, has Bell Aliant terminated the contract in accordance with the termination provisions? (

e) Is Rogers estopped from enforcing the contract? (

f) Was Rogers bound under the SSA to follow the alternative dispute resolution provisions set out therein? IS THE SSA A CONTRACT?

[7] Bell Aliant submits that because the SSA was based on a model approved by the CRTC in 2000 before the Supreme Court foundthat the CRTC had no jurisdiction to regulate access to electric utility poles (see Barrie Public Utilities v.

Canadian Cable TelevisionAssn. 2003 SCC 28 , [2003] 1 S.C.R. 476) it did not create a contractual relationship but rather a regulatory one as stated by theCRTC in its decision, 2007-75 at paragraph 59. [8] Bell Aliant further submits that because the SSA was not a negotiated agreement but rather a mandatory supply of service in aregulated industry on terms prescribed by the regulator it should not be interpreted by reference to the intent of the parties but rather inaccordance with the principles of statutory

interpretation. [9] Rogers submits that most of the terms of the model agreement were negotiated between the parties and simply because someportions had to be resolved by the CRTC does not mean that the agreement is not a contract. As examples, Rogers points to

section 8.1,the termination clause, as well as the definition of “support structures”. Rogers also points out that there are many types of contracts thatare regulated in whole or in part, such as, automobile insurance contracts, franchise agreements, condominium agreements, residentialtenancy leases and union contracts. That does not mean that they are not contracts. [10] Rogers further submits that the regulated portion of the contract only applies to the poles owned by Bell Aliant not those owned byNB Power which are the subject of this action.

The difficulty with that submission, however, is that if that were the case then Rogers’action would be doomed to fail because what it seeks, in effect, to enforce in this action is the National Services Tariff (“the NST”) inrespect to the NB Power poles. [11] The SSA had its origins in a decision of the CRTC (Telecom decision CRTC 95-13) dated June 22, 1995.

That decision, which isentitled “Access to Telephone Company Support Structures” included a request from a predecessor of Rogers (Fundy Cable Ltd.) that theCRTC grant it access to NBTel’s support structures for the purpose of installing its own cable, including fiber optic cable.

That requestwas opposed by NBTel unsuccessfully. [12] In that decision, the CRTC dealt with Fundy Cable’s request as follows: … the Commission directs the telephone companies, … to permit cable television undertakings and telecommunications carriersto construct, maintain and operate their own plant and equipment on or in telephone company support structures using theirown labour force or contractor. … [13] Subsequently, the NST was issued by the CRTC which provided, inter alia: (

a) The Licensee must enter into a Support Structure License Agreement (SSA) with the Company, the form of which hasbeen approved by the Commission and together with this Tariff item make up the Support Structure Service. The terms of theSupport Structure Service are governed by this Tariff item. … [14] The CRTC then prescribed a process for preparing the governing documentation, the SSA and the NST, which it summarized inOrder CRTC 2000-13 at paragraph 7 as follows: 7.

Order 96-1484 prescribed a consultative process between Stentor, on behalf of the telephone companies as per paragraph 1,and Télébec, Québec-Téléphone and TCEI (collectively the telephone companies), and the CTA and the CCTA on behalf of cablecompany users of support structures. The process had been requested by the cable companies to arrive at uniform wording fortariffs nation-wide.

The Commission stated its support for uniform tariffs and agreements for support structures the telephonecompanies provide and ordered the telephone companies to file within 120 days of the order, serving a copy on all interestedparties, a Joint Report of those who participated in the negotiations referred to in paragraph 12 of the order, identifying thefollowing: (

a) the participants in the negotiations; (

b) a general description of the process followed by the participants to reach an understanding;

(

c) the points on which all participants have agreed; (

d) the points on which agreement was not reached; (

e) a

summary of the position of each participant with respect to the points which have not been agreed upon; and (

f) an indication of whether an agreement would likely be achieved on most points which have not been agreed upon, if moretime was available to negotiate and if so, how much more time would be required to reach such an agreement. [15] It then stated at paragraph 18: The Commission approves the proposed tariff and SSA filed under Stentor TN 485 subject to the amendments as set outbelow.

All other proposed tariff provisions and SSA sections not specifically amended or denied by the Commission, as set outbelow, are approved as filed. [16] Even if I accept Rogers’ submission that this is a hybrid agreement, i.e., partially negotiated and partially mandated by the CRTC,that does not change the overarching fact that the agreement itself was mandated in that the parties, particularly Bell Aliant, did not enterinto it freely and voluntarily as parties do when signing a contract, including a lease or an insurance contract.

In fact Bell Aliant’spredecessor opposed the application to the CRTC which lead to the development of the model agreements and, in my view, it is thereforea decidedly involuntary party to this agreement. It entered into the SSA only because it was ordered to do so. [17] In Halifax Harbour Services v. Maritime Tel & Tel, (1980) (NS CA), 40 NSR 448 (NSCA) the telephonecompany was sued for damages resulting from an inadvertent permanent disconnection of the plaintiff’s phone service.

The phonecompany, which was a regulated public utility, relied on a provision in the regulations under the General Tariff dealing with directorieswhich provided, inter alia, that liability for damage due to errors or omissions in directories was limited to a refund of all or part of themonthly rate for the period during which the error or omission continues. The trial judge rejected the defence. [18] On appeal, however, Cooper, J.A. gave effect to it and in doing so relied on the following observation of Justice Brandeis inWestern Union Telegraph Co. v.

Esteve Bros. &Co. (1921), 256 U.S. 566, United States Supreme Court to explain the effect of aregulated tariff or rate on commercial relationships. In that case Justice Brandeis was considering

An Act to Regulate Commerce whichcame into effect on June 18, 1910. He stated at pp 571-2: The act of 1910 introduced a new principle into the legal relations of the telegraph companies with their patrons whichdominated and modified the principles previously governing them. Before the act the companies had a common law liability fromwhich they might or might not extricate themselves according to views of policy prevailing in the several states.

Thereafter, for allmessages sent in interstate or foreign commerce, the outstanding consideration became that of uniformity and equality of rates.Uniformity demanded that the rate represent the whole duty and the whole liability of the Company. It could not be varied byagreement; still less could it be varied by lack of agreement. The rate became, not as before a matter of contract by which a legalliability could be modified, but a matter of law by which a uniform liability was imposed.

Assent to the terms of the rate wasrendered immaterial, because when the rate is used, dissent is without effect. [19] In my view the same can be said of a regulated and imposed relationship such as that created by the CRTC between Rogers andBell Aliant as evidenced by the SSA and the NST. While the parties may have agreed on the drafting of certain provisions of the SSA, itwas nevertheless a model agreement, the entirety of which had to be approved by the CRTC, which imposed a uniform liability.

It isclear from the evidence, and I find, that Bell Aliant only became a party the SSA pursuant to the order of the CRTC. [20] Rogers submits that even if this is the case it only applies to the poles owned by Bell Aliant, not those owned by third parties suchas NB Power because they are not part of the mandatory regime and are therefore made available to Rogers voluntarily. As set out belowat paragraph 23, the SSA contains a definition of “support structures” which includes poles that “ … the Company does not own but for

which it has the right to grant permits thereto.” If the SSA is the basis of the claim, which it is, then third party poles are clearly includedin the mandatory regime. [21] I therefore find that the SSA is not a contract but rather an approved model document governing a mandatory supply of service inaccordance with a tariff in a regulated industry. Consequently it must be interpreted not in accordance with the principles of contractinterpretation but rather in accordance with the principles of statutory

interpretation. [22] In Rizzo and Rizzo Shoes Ltd. (Re) (SCC), [1998] 1 S.C.R. 27 Iacobucci J. stated at para. 21: Although much has been written about the

interpretation of legislation (see, e. g., Ruth Sullivan, Statutory

Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) ( hereinafter “Construction of Statutes”); Pierre–Andre Cote, The

Interpretation of Legislation in Canada (2nd ed. 1991) ), Elmer Driedger in Construction of Statutes ( 2nd ed. 1983) bestencapsulates the approach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on thewording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [23] The NST provides a number of

definitions in relation to support structure service which, by virtue of Clause 1.1 of the SSA, applyto that agreement. One of those

definitions is the definition of “support structures” found at 901.2 of the NST which reads as follows: Support Structures The supporting structures, including poles, Conduits, Strands, anchors and Manholes (but excluding central office vaultsand controlled environmental vaults) which the Company owns or which the Company does not own but for which it has theright to grant Permits thereto. (underlining by Grant J) [24] When NB Power terminated its agreement with Bell Aliant in relation to its poles Bell Alliant no longer had the right to grant apermit to those support structures as defined in the SSA.

Moreover, the tariff on which Rogers’ claim is based in this action ceased toapply to the NB Power support structures.

I find that when the NB Power poles no longer fell within the definition of support structuresunder the SSA and the NST Bell Aliant’s obligations under the SSA with respect to those poles came to an end because the service itagreed to supply was no longer one that it could lawfully supply. [25] Rogers submits that it had no knowledge of the agreement between Bell Aliant and NB Power and that Bell Aliant’s undisclosedlack of authority in respect to the NB Power poles does not relieve it of its obligations under the SSA.

This argument does not have anymerit given that the SSA is a mandated supply of service but even if it were a contract it would not narrow the definition of supportstructures which is all that the parties could be said to have agreed upon. Moreover, if the parties had been contracting, presumablyRogers would have done some due diligence to determine what was meant by support structures for which Bell Aliant “…has the right togrant permits.” [26] Applying the approach set out in Rizzo, supra., I find that when read in its entire context the SSA is not simply an agreement tosupply a service for five years.

Rather it is a mandatory agreement that requires Bell Aliant to supply a specific service to Rogers onsupport structures as defined in the NST at the rate set out in the NST for a five year period. Once Bell Aliant no longer had the right togrant permits to the NB Power poles the rate set out in the tariff ceased to apply as did the CRTC’s authority to mandate that it supplythis service to Rogers in the first place. I further find that these are essential elements of the SSA and that once they ceased to exist theSSA and the NST no longer had any legal effect in respect to the NB Power poles. [27] In

summary, then I find that Bell Aliant did not enter into a contract to supply this service at a prescribed rate; it entered into amandated agreement to supply it at the prescribed rate and once it was no longer able to supply the service with respect to the NB Powerpoles the agreement with respect to those poles came to an end as the governing documents no longer had any legal effect. [28] I therefore dismiss the plaintiff’s claim. FRUSTRATION

[29] The law of frustration was summarized in the case of Craig Manufacturing Ltd. v. Davidson, 2009 NBCA 42 atparagraph 9 as follows: … No one disputes the trial judge's definition of the doctrine of frustration, which is taken from the decision of this Court inMr. Convenience Ltd. v. 040502 N.B.

Ltd. (1993), (NB CA), 137 N.B.R. (2d) 305; 351 A.P.R. 305 (C.A.), whereAyles J.A., stated (at paras. 12-13): I would accept the following to be a correct statement on the doctrine of frustration, set forth in Cheshire and Fifoot, The Law of Contract, 7th ed. (1969), at p. 508, where the learned authors say: ... the parties are frustrated in the sense that the substantial object that they had in view is no longer attainable. Literal performance may still be possible, but nevertheless it will not fulfil the original and common design of the parties. In Luchuk v.

Sport B.C. (1984), (BC SC), 52 B.C.L.R. 145, Spencer J. at p. 151 considered theabove quotation and further elaborated on law: Care must be taken to ensure that test does not trespass upon the authorities which show that a contract is not frustrated simply because performance for one side or the other becomes more onerous or more expensive: see Tsakiroglou & Co. v. Noblee Thorl G.m.b.H., [1962] A.C. 93, [1961] 2 W.L.R. 633, [1961] 2 All E.R. 179 (H.L.) [30] In Naylor Group Inc. v.

Ellis-Don Construction Ltd. 2001 SCC 58; [2001] 2 S.C.R. 943 Binnie J. stated at pp 967- 8: Frustration occurs when a situation has arisen for which the parties made no provision in the contract and performance of thecontract becomes “a thing radically different from that which was undertaken by the contract”: Peter Kiewit Sons’ Co. v. EakinsConstruction Ltd., (SCC), [1960] S.C.R. 361, per Judson J., at p. 368, quoting Davis Contractors Ltd. v.

FarehamUrban District Council, [1956] A.C. 696 (H.L.) at p. 729. … … The court is asked to intervene, … to relieve the parties of their bargain because a supervening event … has occurred withoutthe fault of either party. … [31] Since Bell Aliant only agreed in the SSA to provide Rogers use of the support structures which are defined, inter alia, as includingpoles which Bell Aliant does not own but for which it has the right to grant permits and since, subsequent to the January 30, 2004 noticefrom NB Power, Bell Aliant no longer had the right to grant permits to the NB Power poles, I find that it was no longer possible for it toprovide access to those poles to Rogers. [32] This is not a situation where performance by Bell Aliant has become more onerous.

Rather, it is one where performance by BellAliant has become impossible due to two supervening events, neither of which was the fault of either of the parties, viz.,

a) the Supreme Court’s decision in the Barries Public Utilities case; and

b) NB Power’s termination of the Third Party Attachment Sub- Agreement. [33] These events, particularly the termination by NB Power, had the effect of re-classifying the NB Power poles from supportstructures as defined in the SSA and the NST to structures that were not governed by the SSA or the NST because Bell Aliant no longerhad the right to grant permits to third parties to use those structures.

Moreover, I find as a fact that as a consequence the substantial objectof the SSA with respect to the NB Power poles – Bell Aliant supplying a service to Rogers on support structures as defined in the NST –was no longer attainable. [34] I therefore find that even if the SSA was a contract, in respect to the NB Power poles it was frustrated by NB Power’s decision toterminate the Third Party Attachment Sub-Agreement with Bell Aliant and I would dismiss Rogers’ claim on that basis. TERM/TERMINATION - CLAUSE 8 OF THE SSA

[35] With respect to the issue of how the termination clause in the SSA is to be interpreted, given my earlier findings that issue is mootas is the issue of whether or not Bell Aliant terminated the SSA in accordance with its provisions.

However, in case those findings arenot sustained I make the following findings. [36] The clause in question states: Subject to the termination provisions of this Agreement, this Agreement shall be effective from the date it is made and shallcontinue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unlessand until terminated by one year prior notice in writing by either party. [37] The CRTC dealt with the issue of how the termination provision in this clause should be interpreted in Telecom Decision 2007 –75.

It accepted Bell Aliant’s submission that the SSA, including this provision, should be interpreted by looking for the regulatory intentand that in doing so both the French and English versions of the SSA must be considered equally authoritative. The Commission thennoted that while there is more than one possible

interpretation in the English version of clause 8, the French version admits of only oneinterpretation which it adopted at paragraph 61 as follows: “…termination of the model SSA can only occur upon notice one year prior tothe end of the initial term or one year prior to the end of a renewed term. …” I agree with and adopt that finding by the CRTC. [38] It follows, and I further find, that if the SSA is a contract and the doctrine of frustration does not apply then Bell Aliant has notcomplied with the termination provisions in clause 8 of the SSA. ESTOPPEL [39] On the issue of estoppel Bell Aliant pleads,

i) that Rogers is estopped from making this claim by its conduct as it first negotiated rates with NB Power then intervened in therate hearings before the New Brunswick Energy and Utilities Board and accepted and paid the rates set by the NBEUB; and ii) that Rogers is estopped from bringing this action as it been previously decided by the CRTC. [40] Neither of these arguments were advanced forcefully at the hearing of this case.

On the first which was not argued at all it seems tome that in dealing with NB Power and intervening before the NBEUB Rogers was merely acting prudently to protect its interests.Moreover there is no evidence that Bell Aliant relied on Rogers’ position to its detriment or for that matter that by its conduct Rogersmade any representation to Bell Aliant, both of which must be proven to establish estoppel by conduct: see C. P. Hotels Ltd. v.

Bank ofMontreal (SCC), [1987] 1 S.C.R. 711 at para. 32. [41] With respect to the previous applications to the CRTC, Bell Aliant essentially pleads issue estoppel or res judicata but that onlyapplies when the prior decision is final and the evidence before this court is that such is not the case with decisions of the CRTC: seeDanyluk v. Ainsworth Technologies Inc. 2001 SCC 44. DISPUTE RESOLUTION PROCESS [42] Finally, Bell Aliant submits that the SSA contains a provision that sets out a process for resolving disputes and that Rogers did notfollow that process. [43] In Parlee v.

MacFarlane (NB CA), [1999] NBJ No. 88 Drapeau J.A., as he then was, stated at paragraph 33: It is commonplace that trial by ambush has no place in our modern system of justice. The rules of pleading enunciated in Rule 27of the Rules of Court are designed to ensure that the relevant issues are raised and that no party is taken by surprise. Theimportance of pleadings cannot be underemphasized.

They define the issues not only for the parties, but for the judge as well.Indeed, I cannot fathom a situation where a trial judge could properly decide the case before him or her on a basis not raised in apleading or at trial.

[ 44 ] While Bell Aliant raised this issue in its brief and argued it at the trial it did not plead the issue. Nor did it move to amend its pleading at the trial. Rogers did not address it either in its brief or in its submissions at trial. In my view it would be unfair to base this decision on this issue in the circumstances and I therefore decline to rule on it. PROVISIONAL ASSESSMENT OF DAMAGES [ 45 ] It is my duty to make a provisional assessment of damages in the event that Rogers is ultimately successful in this action.

Its claim is for $2,000,000.00 though there was no evidence of any actual loss beyond the agreed upon difference in the amount it paid for access to NB Power’s poles between August 1, 2006 and May 31, 2007 which was $751,169.60. The remainder of its claim would therefore consist of general damages but there is no evidence to support such a claim which I would dismiss. [ 46 ] I therefore provisionally assess the plaintiff’s damages at $751,169.60.

Rogers also claims interest on its damages which I would also allow as simple interest at the rate of five per cent per annum from the date of the notice of action until payment of the judgment. [ 47 ] Finally, Rogers requests a declaration that Bell Aliant is required to indemnify it for any amount it is obliged to pay to any third party as a consequence of Bell Aliant’s breach of the SSA. The alleged breach occurred in 2004. This action was started in 2008, seven years ago. If there were any such damages then I find they would have been known to Rogers and should have been proven at the time of trial.

Because they were not I would dismiss this claim regardless of the ultimate outcome of the liability issues in this case. DISPOSITION [ 48 ] For the foregoing reasons the plaintiff’s claim is dismissed with costs on Scale 3, Tariff “A” of Rule 59 based on an amount involved of $1,000,000.00. The defendant is also entitled to all taxable disbursements. ___________________________________________ William T. Grant Judge of the Court of Queen’s Bench of New Brunswick