2014 FC 1, 2014 FC 1

T-1405-13 2014 FC 1 TELUS Communications Company ( Applicant ) v. Attorney General of Canada ( Respondent ) Indexed as: TELUS v. Canada (Attorney General) Federal Court, Strickland J.—Ottawa, December 3, 2013 and January 2, 2014.

Telecommunications — Judicial review of authority of Minister of Industry concerning issuance of spectrum licences under Radiocommunication Act (RA) — Minister making available spectrum in 700 MHz band for commercial mobile systems — Consultation process culminating in report addressing specific mechanisms potentially applicable to 700 MHz auction to promote competitive marketplace, including spectrum aggregation limits (spectrum caps), limits on amount of spectrum any one entity may hold — Further report setting out rules for participation in competitive licensing process and conditions applying to licences — Applicant affected by these decisions, conditions because as large wireless service provider, applicant would not be issued certain licences — Applicant submitting conditions or decisions in fact eligibility criteria Minister having no authority to apply, therefore exceeding his jurisdiction — Principal issue whether Minister acting outside his authority in prescribing conditions for issuance of spectrum licences — Well within Minister’s authority to impose spectrum caps as condition of licence — Minister not transgressing Governor in Council’s regulatory powers — Effect of limiting large wireless services provider’s ability to acquire spectrum not imposing eligibility requirement, but implementing, furthering objectives of clearly stated telecommunications policy — Minister, Governor in Council having concurrent jurisdiction to impose licence conditions, with Governor in Council having exclusive authority to legislate — In absence of promulgated regulations by Governor in Council pertaining to spectrum licence eligibility, Minister permitted to exercise power, authority to impose licence conditions — Existence of unused regulation making power not functioning to limit Minister’s ability to exercise statutory, discretionary authority — Minister correctly, reasonably exercising authority herein — Application dismissed.

This was 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 (RA). The applicant sought declaratory relief and an order of prohibition pursuant to subsection 18.1 (1) of the Federal Courts Act . The radio frequency spectrum is divided into bands of frequencies which are designated for use by radiocommunication services.

The Minister, through the Department of Industry Act (DIA), the RA and the Radiocommunication Regulations (Regulations) and with regard to the objectives of the Telecommunications Act (TA), is responsible for spectrum management in Canada. 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 of high demand, the Minister decided that spectrum would be offered by way of an auction. A consultation process culminated in a report by Industry Canada released 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.

Spectrum caps restrict the amount of spectrum that any eligible bidder can purchase in a particular geographic region. In March 2011, Industry Canada released “A Framework for Spectrum Auctions in Canada” which stated, inter alia , 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.

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) announcing the decisions resulting from the prior consultation processes. Industry Canada stated that it had been determined that targeted measures were required to support the objectives of sustained competition, robust investment, improvement of mobile services in rural areas and public safety and security. Further, it determined that spectrum caps were more appropriate than set-asides.

In March 2013, Industry Canada released the “Licensing Framework for Mobile Broadband Services (MBS) 700 MHz Band” (Licensing Framework), which set out the rules for participation in the competitive licensing process for spectrum in the 700 MHz band including the conditions on licences that would apply. The applicant was affected by these decisions and conditions because the result of the auction process would be that as a large wireless service provider, it would not be issued licences for more than one block of spectrum in certain blocks.

The applicant submitted that the conditions or decisions were in fact eligibility criteria that the Minister had no authority to apply, therefore exceeding his jurisdiction. The principal issue was whether the Minister acted outside his authority in prescribing the conditions for the issuance of spectrum licences for the 700 MHz frequency band. Held , the application should be dismissed. The dispute concerned whether in fixing the conditions on spectrum licences, the Minister acted outside his authority in making a determination on eligibility.

That is, whether the conditions imposed by the Minister, in effect, pertained to “eligibility” and were therefore beyond his jurisdiction. Both the Minister and the Governor in Council have the authority to impose terms and conditions on spectrum licences, but only the Governor in Council has the authority to prescribe eligibility criteria. The Minister’s authority is subject

to the Governor in Council’s power to regulate, which has not been exercised in the field of spectrum licences. It was well within theMinister’s authority to impose spectrum caps as a condition of licence. By doing so, the Minister did not impose eligibility requirementsor transgress into the Governor in Council’s regulatory powers. The imposing of spectrum caps, or aggregation limits, was for thepurpose of implementing and furthering the objectives of clearly stated telecommunications policy.

Pursuant to subsections 5(1.2) and5(1.4) of the RA, the Minister also has the authority to use a system of competitive bidding and establish procedures, standards andconditions, including bidders qualifications, in selecting the person to whom a radio authorization will be issued. The fact that such acondition or qualification serves to limit large wireless services providers’ ability to acquire desired 700 MHz spectrum band in moreblocks does not impose an eligibility requirement, but instead furthers the implementation of the intended policy.

Even if eligibility wasimpacted, this was incidental to the overall intent of Parliament. The applicant submitted that the Minister only has the administrative discretion to select licensees from among those who are eligible.However, the case it relied upon was distinguished. Here, the Minister may issue spectrum licences and fix their terms and conditions.The Governor in Council has the regulatory authority to prescribe spectrum licence terms and conditions and eligibility criteria.

There isthus concurrent jurisdiction to impose licence conditions, with the Governor in Council having exclusive authority to legislate. And,because the Governor in Council has not elected to do so with respect to spectrum licences, this permits the Minister to exercise hispower and authority to impose licence conditions which may, incidentally, affect eligibility. Parliament has specifically afforded theMinister discretion to grant or deny a licence in accordance with his mandate and jurisdiction.

If the imposition of a spectrum cap has theeffect of denying a licence to a particular category of applicants, this is the exercise of a discretionary power and not the unlawfulimposition of eligibility criteria. The existence of an unused regulation making power, as in this case, does not function to limit theMinister’s ability to exercise his statutory and discretionary authority. In conclusion, the Minister had the authority to impose conditions on spectrum licences for the 700 MHz band, including spectrum capsapplicable to large wireless service providers such as the applicant.

If there were any aspect of the conditions that affected eligibility, thiswas incidental to the Minister’s authority to administer spectrum management in accordance with the policy objectives. In the absence ofpromulgated regulations by the Governor in Council pertaining to spectrum licence eligibility, the conditions did not exceed theMinister’s authority or conflict with the Governor in Council’s legislative authority. The Minister correctly and reasonably exercised hisauthority in this regard. STATUTES AND REGULATIONS CITED Broadcasting Act, S.C. 1991, c. 11, s. 9(1). Canada Elections Act, S.C. 2000, c. 9.

Canadian Telecommunications Common Carrier Ownership and Control Regulations, SOR/94-667. Copyright Act, R.S.C., 1985, c. C-42. Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 133(6). Corrections and Conditional Release Regulations, SOR/92-620, art. 161(1)(a). Department of Industry Act, S.C. 1995, c. 1, ss. 4(1), 5. Direction to the CRTC (Ineligibility of Non-Canadians), SOR/97-192. Federal Courts Act, R.S.C., 1985, c. F-7, s. 18.1(1),(2). Federal Courts Rules, SOR/98-106, r. 302. Fisheries Act, R.S.C., 1985, c. F-14. Immigration and Refugee Protection Act, S.C. 2001, c. 27.

Personal Information Protection Act, S.A. 2003, c. P-6.5, s. 50(5). Radio Act, R.S.C. 1952, c. 233. Radiocommunication Act, R.S.C., 1985, c. R-2, ss. 2 “radio authorization”, 5(1),(1.1),(1.2),(1.4), 6. Radiocommunication Regulations, SOR/96-484, ss. 9, 10. Securities Act, R.S.B.C. 1996, c. 418, ss. 159, 161(6)(d). Species at Risk Act, S.C. 2002, c. 29, s. 58(5). Telecommunications Act, S.C. 1993, c. 38, ss. 7, 16, 22(1). CASES CITED applied: Apotex Inc. v. Canada (Health), 2011 FC 1308, 107 C.P.R. (4th) 127, affd 2012 FCA 322, 112 C.P.R. (4th) 185; May v.

CBC/RadioCanada, 2011 FCA 130, 231 C.R.R. (2d) 369; Krause v. Canada, (FCA), [1999] 2 F.C. 476, (1999), 19 C.C.P.B. 79(C.A.); Moresby Explorers Ltd. v. Canada (Attorney General), 2007 FCA 273, [2008] 2 F.C.R. 341; Dunsmuir v. New Brunswick, 2008

SCC 9, [2008] 1 S.C.R. 190; Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168,2012 SCC 68, [2012] 3 S.C.R. 489; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R.140; Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, 52 Admin. L.R. (4th) 118. distinguished: Procureur général du Canada v. Compagnie de Publication La Presse, Ltée, (SCC), [1967] S.C.R. 60, (1966), 63D.L.R. (2d) 396. considered: Apotex Inc. v. Canada (Health), 2010 FC 1310; Sweet v. Canada (1999), 249 N.R. 17 (F.C.A.); Fisher v.

Canada (Attorney General),2013 FC 1108; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Alberta (Information and Privacy Commissioner) v.Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Agraira v. Canada (Public Safety and Emergency Preparedness),2013 SCC 36, [2013] 2 S.C.R. 559; David Suzuki Foundation v. Canada (Fisheries and Oceans), 2012 FCA 40, [2013] 4 F.C.R. 155;Clare v. Canada (Attorney General), 2013 FCA 265, 451 N.R. 349; McLean v. British Columbia (Securities Commission), 2013 SCC 67,[2013] 3 S.C.R. 895; Saskatchewan Wheat Pool v.

Canada (Attorney General), (FC), [1993] F.C.J. No. 902 (QL),(1993), 107 D.L.R. (4th) 190 (F.C.T.D.); Greenisle Environmental Inc. v. Prince Edward Island, 2005 PESCTD 33, 248 Nfld. & P.E.I.R.39. referred to: Canada (Attorney General) v. Trust Business Systems, 2007 FCA 89, 361 N.R. 53; Airth v. Canada (National Revenue), 2006 FC 1442,[2007] 2 C.T.C. 149; Bell Canada v. Canada (Attorney General), 2011 FC 1120, 397 F.T.R. 278; Goodwin v. Canada (AttorneyGeneral), 2005 FC 1185, 279 F.T.R. 100; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53,[2011] 3 S.C.R. 471, affg sub nom.

Canada (Attorney General) v. Mowat, 2009 FCA 309, [2010] 4 F.C.R. 579; Aviation Roger ForguesInc. v. Canada (Attorney General), 2001 FCT 196; Momi v. Canada (Minister of Citizenship and Immigration), 2006 FC 738, [2007] 2F.C.R. 291; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), (SCC), [1991] 2 S.C.R. 22,(1991), 81 D.L.R. (4th) 358; Jabel Image Concepts Inc. v. Canada, , 257 N.R. 193 (F.C.A.); R. v. Daoust, 2004 SCC6, [2004] 1 S.C.R. 217; Barrie Public Utilities v. Canadian Cable Television Assn., 2001 FCA 236, [2001] 4 F.C. 237, affd 2003 SCC28, [2003] 1 S.C.R. 476; R. in right of Canada v.

Saskatchewan Wheat Pool, (SCC), [1983] 1 S.C.R. 205, (1983), 153D.L.R. (3d) 9; Angus v. Canada, (FCA), [1990] 3 F.C. 410, (1990), 72 D.L.R. (4th) 672 (C.A.); Carpenter FishingCorp. v. Canada, (FCA), [1998] 2 F.C. 548, (1997), 155 D.L.R. (4th) 572 (C.A.); Association des crevettiersacadiens du Golfe inc. v. Canada (Attorney General), 2011 FC 305, 385 F.T.R. 302. AUTHORS CITED Handa, Sunny et al. Communications Law in Canada, Issue No. 46 (looseleaf ed.). Markham: LexisNexis, 2013.

Industry Canada. “Consultation on a Licensing Framework for Mobile Broadband Services (MBS) — 700 MHz Band”, April 2012,online: <https://www.ic.gc.ca/eic/site/smt-gst.nsf/vwapj/dgso-002-12-consultation-MBS-700MHz-ve.pdf/$FILE/dgso-002-12-consultation-MBS-700MHz-ve.pdf>. Industry Canada. “Consultation on a Policy and Technical Framework for the 700 MHz Band and Aspects Related to CommercialMobile Spectrum”, November 20, 2010, online: <https://www.ic.gc.ca/eic/site/smt-gst.nsf/vwapj/smse018e.pdf/$file/smse018e.pdf>.

Industry Canada. “Framework for Spectrum Auctions in Canada”, March 2011, online: <https://www.ic.gc.ca/eic/site/smt-gst.nsf/vwapj/dgso-001-11-framework-e.pdf/$FILE/dgso-001-11-framework-e.pdf>. Industry Canada. “Licensing Framework for Mobile Broadband Services (MBS) — 700 MHz Band”, March 2013, online:<https://www.ic.gc.ca/eic/site/smt-gst.nsf/vwapj/Licensing_Framework_MBS_700_MHz_Band.pdf/$file/Licensing_Framework_MBS_700_MHz_Band.pdf>.

Industry Canada. “Policy and Technical Framework: Mobile Broadband Services (MBS) — 700 MHz Band, Broadband Radio Service(BRS) — 2500 MHz Band”, March 2012, online: <https://www.ic.gc.ca/eic/site/smt-gst.nsf/vwapj/700MHz-e.pdf/$file/700MHz-e.pdf>. Ryan, Michael H. Canadian Telecommunications Law and Regulation. Scarborough, Ont.: Carswell, 1993. APPLICATION for judicial review of the authority of the Minister of Industry concerning the issuance of spectrum licences for the 700MHz band pursuant to the Radiocommunication Act. Application dismissed. APPEARANCES Christopher C. Rootham, Stephen R.

Schmidt and Michael H. Ryan (Arnold & Porter LLP, London, England) for applicant. Sanderson Graham, Gregory Tzemenakis and David Aaron for respondent. SOLICITORS OF RECORD Nelligan O’Brien Payne LLP and TELUS Communications Company, Ottawa, for applicant. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by

[ 1 ] Strickland J.A.: 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 , R.S.C., 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 , R.S.C., 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 , S.C. 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 , S.C. 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 700 MHz and 2500 MHz 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 700 MHz auction were summarized as follows (Policy and Technical Framework,

Section B3 generally, at pages 29–30): B3-1: A spectrum cap of two paired frequency blocks in the 700 MHz band (blocks A, B, C, C1 and C2) is applicable to all licensees. 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. [Footnotes omitted.] [ 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 licensing 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 [Licensing Framework, at page 39]: 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 licensees. • 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 licences or issuance of new licences will be authorized if it would result in a licensee exceeding the spectrum aggregation limits during this period. [Footnote omitted.] [ 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, 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 ]

Section 2, subsections 5(1), 5(1.1), 5(1.2), 5(1.4) and paragraph 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 ). Subsection 5(1) confers authority on the Minister, subject to any regulations made pursuant to

section 6, to issue radio licences (subparagraph 5(1)( a )(i)) and spectrum licences (subparagraph 5(1)( a )(i.1)) and to fix the terms and conditions thereof (subparagraph 5(1)( a )(v)) as well as to plan the allocation and use of the spectrum (paragraph 5(1)( e )) and do any other thing necessary for the administration of the RA ( paragraph 5(1) ( n )). In addition, subsection 5(1.1) states that in exercising his subsection 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 . Subsection 5(1.2) states that in exercising his paragraph 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. Subsection 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 ] Paragraph 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. Subsection 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.

Subsection 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 ] Subsection 4(1) and

section 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 ( paragraph 4(1) ( k )).

Section 5 sets out the objectives which guide the exercise of ministerial authority under subsection 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 ( paragraph 5 ( g )), stimulating investment ( paragraph 5 ( h )), and promoting the interests and protection of Canadian consumers ( paragraph 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 subsection 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 theeligibility of persons to be issued spectrum licences and to fix terms and conditions for such licences that include eligibility criteria, otherthan 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 applicantframing it as a jurisdictional issue while the respondent sees it as a question of the reasonableness of the Minister’s decisions.

In myview, 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 MHzfrequency 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 limitimposed 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 andTechnical Framework and again in March 2013 by the Licensing Framework. Although the applicant could have initiated the applicationfor 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 oftime.

The decision at issue is not an ongoing “course of conduct” or an evolving policy scheme (Apotex Inc. v. Canada (Health), 2011FC 1308, 107 C.P.R. (4th) 127, at paragraph 20, affd 2012 FCA 322, 112 C.P.R. (4th) 185 (Apotex 2012), at paragraph 8; Canada(Attorney General) v. Trust Business Systems, 2007 FCA 89, 361 N.R. 53 (Trust Business), at paragraph 20).

It is one of a set of specificpolicy 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 subsection 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 areknown and the Minister decides to whom licences will be issued. Thus, the application is not in respect to a particular “decision”pursuant to subsection 18.1(2) of the FCA.

Rather, it is in respect of a “matter” under subsection 18.1(1) of the FCA being the Minister’spolicy of refusing to issue spectrum licences authorizing the use of a second block of spectrum to large wireless service providers. The30-day limitation period contained in subsection 18.1(2) does not apply to an application concerning a challenge to the legality orjurisdiction to create an ongoing policy (Apotex Inc. v. Canada (Health), 2010 FC 1310 (Apotex), at paragraph 10; Airth v. Canada(National Revenue), 2006 FC 1442, [2007] 2 C.T.C. 149 (Airth), at paragraphs 9–10; Sweet v.

Canada (1999), 249 N.R. 17 (F.C.A.)(Sweet), at paragraph 11; May v. CBC/Radio Canada, 2011 FCA 130, 231 C.R.R. (2d) 369 (May), at paragraph 10; Krause v. Canada, (FCA), [1999] 2 F.C. 476 (C.A.) (Krause)). [27] Further, if the applicant waits until the auction to receive a decision on the issuance of licences and then applies for judicialreview of that decision this would cast doubt on the validity of the auction and, based on May, above, it is uncertain that an expeditedhearing would be permitted.

Analysis [28] Subsection 18.1(1) of the FCA states that an application for judicial review may be made by the Attorney General or by anyonedirectly affected by the “matter” in respect of which relief is sought.

Subsection 18.1(2) states that an application for judicial review “inrespect of a decision or an order” of a federal board, commission or other tribunal shall be made within 30 days of communication of thedecision. [29] Accordingly, where the subject-matter of a judicial review is a “matter”, rather than a “decision or order”, the 30-day time limitdoes not apply (Krause, above, at paragraph 23; Airth, above, at paragraphs 5 and 10).

Therefore, the question is whether the applicant isseeking 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 applicantsfrom seeking relief by way of mandamus, prohibition and declaration.

In that case, while there was a general decision to adopt the 1988recommendations of the Canadian Institute of Chartered Accountants and to implement those recommendations in each of the followingfiscal 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 [at paragraphs 23–24]: The charge is that by acting as they have in the 1993-1994 and subsequent fiscal years the Ministers have contravened the relevantprovisions of the two statutes thereby failing to perform their duties, and that this conduct will continue unless the Court intervenes witha view to vindicating the rules of law…. I am satisfied that the exercise of the jurisdiction under

section 18 does not depend on the existence of a “decision or order”. In AlbertaWilderness Assn. v. Canada (Minister of Fisheries & Oceans), Hugessen J. was of the view that a remedy envisaged by that

section “doesnot require that there be a decision or order actually in existence as a prerequisite to its exercise.” In the present case, the existence of thegeneral decision to proceed in accordance with the recommendations of the Canadian Institute of Chartered Accountants does not, in myview, render the subsection 18.1(2) time limit applicable so as to bar the appellants from seeking relief by way of mandamus, prohibitionand declaration.

Otherwise, a person in the position of the appellants would be barred from the possibility of ever obtaining relief undersection 18 solely because the alleged invalid or unlawful act stemmed from a decision to take the alleged unlawful step. That decision didnot of itself result in a breach of any statutory duties. If such a breach occurred it is because of the actions taken by the responsibleMinister in contravention of the relevant statutory provisions. [Endnote omitted.] [32] The respondent submits that Krause, unlike this situation, was not a direct challenge to a decision.

Further, unlike Krause, this isnot a situation of an ongoing course of conduct. On the other hand, the applicant submits that Krause is an example of an ongoing courseof 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, [2008] 2 F.C.R. 341 (Moresby), at paragraph 24, it stands for the proposition that, “[b]ecauseillegality goes to the validity of a policy rather than to its application, an illegal policy can be challenged at any time; the claimant neednot 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 ofAppeal stated the following [at paragraph 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 acell, as much as the policy of double-bunking in itself. The thrust of the appellant's argument is that the policy of double-bunking, whichaffects the appellant and many other inmates, should be declared invalid.

That policy is an on-going one which may be challenged at anytime; judicial review, with the associated remedies of declaratory, prerogative and injunctive reliefs, is the proper way to bring thatchallenge to this Court (see Krause v. Canada, , [1999] 2 F.C. 476 (F.C.A.)). [34] In Apotex, above, at paragraph 10, Justice Pinard, in referring to Airth, above, held that a matter is distinguished from a decisionor order by considering whether what is at issue is a “‘singular decision’” or instead “‘part of a course of conduct, all of which theApplicant challenges’”.

Justice Pinard recognized that the applicant therein was seeking relief arising out of a number of decisions andother conduct of the same decision maker, operating under the same statute and arising out of the same factual matrix.

While it was adebatable issue as to whether the applicant’s attack was on a decision or a matter, Justice Pinard found that this ought to be determinedby 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 [cited above]) and, in doing so, he distinguished Krause, above finding that it was concerned with thelawfulness of implementing policy on an ongoing basis. The case before him involved a challenge to three distinct administrativedecisions.

Justice Barnes stated the following [at paragraph 19]: In Manuge, above, I made a similar point in the following passage [at paragraph 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, 2004FCA 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 thedesire for finality around administrative decisions and to ensure that appropriate deference was accorded to the decision maker (see, forexample, paras. 27 to 30 in Grenier).

The Court was also rightfully concerned about a process which would allow a party to collaterallyattack a decision well beyond the 30-day time limit for bringing an application for judicial review. All of these are concerns that carrymuch less significance in a case where the challenge is limited to the lawfulness of a government policy and where the application of thatpolicy has on-going implications for the party affected.

It is also perhaps noteworthy that in Grenier, Tremblay and Berhad, the Court’sdiscussion of these policy considerations invariably referred to the lawfulness of the underlying decisions and no explicit reference wasmade to challenges to government policy, legislation, or conduct.

In Tremblay, the Court also noted “the fine line that exists between ajudicial review and a court action” where extraordinary remedies are sought. [Footnote omitted.] [36] Justice Barnes held that allowing Apotex to avoid the 30-day filing requirement would open the door to a multitude of similarbelated applications and thereby effectively extinguish the time limit requirement. It would also sidestep the need for finality for discreteadministrative decisions which were, as in that case, directly attacked as unlawful.

He found that Apotex’s position was no more than acolourable device intended to permit it to avoid violating both the letter and the spirit of subsection 18.1(2) of the FCA and rule 302 ofthe 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 anapplication for judicial review of a Canadian Radio-television and Telecommunications Commission’s (CRTC) Broadcast InformationBulletin issued pursuant to the Canada Elections Act [S.C. 2000, c. 9].

The Bulletin required the CRTC to issue, within four days of theelection writ being dropped, a set of guidelines pertaining to the applicability of the Broadcasting Act [S.C. 1991, c. 11] and itsregulations to the conduct of broadcasters during a general election. The Bulletin referred to the CRTC’s 1995 Guidelines to the effectthat not all party leaders need be included in the leaders’ debates, as long as equitable coverage of all parties is provided. Ms. Maysubmitted 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, theBulletin, 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 themeaning of subsection 18.1(2) [of the FCA] 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 [at paragraphs 10–11]: This argument, in my respectful view, is wrong.

While it is true that, normally, judicial review applications before this Court seek areview of decisions of federal bodies, it is well established in the jurisprudence that subsection 18.1(1) permits an application for judicialreview “by anyone directly affected by the matter in respect of which relief is sought”. The word “matter” embraces more than a meredecision or order of a federal body, but applies to anything in respect of which relief may be sought: Krause v. Canada, (FCA), [1999] 2 F.C. 476 at 491 (F.C.A.).

Ongoing policies that are unlawful or unconstitutional may be challenged at any time byway of an application for judicial review seeking, for instance, the remedy of a declaratory judgment: Sweet v. Canada (1999), 249 N.R.17. Here, the impugned CRTC Bulletin contains a reference to the Guidelines, which contain the same impugned rule. In fact, the sameimpugned rule has applied to leaders’ debates in federal elections since 1995. As such, it qualifies as an “ongoing policy” that could havebeen and can be challenged at any time by the applicant.

Consequently, the applicant did into need to wait until the Bulletin for the 2011general 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 [SOR/92-620], from whichthey had been previously exempt by virtue of subsection 133(6) of the Corrections and Conditional Release Act [S.C. 1992, c. 20]. Theapplicant alleged that the practical effect of the amendment was that it granted his parole officers the discretion to change his terms ofparole and also meant that the applicant had to report in person every three months.

With respect to the timeliness of his application forjudicial review, Justice Russell agreed with the applicant that the amendment was more in the nature of an ongoing policy that wasunlawful and unconstitutional and which may be challenged at any time by way of an application for judicial review.

In that case, atissue 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 authorityto make decisions or impose spectrum licence conditions which, the applicant submits, have the effect of prescribing eligibility criteria inrespect 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 mayultimately successfully bid on was made through the Policy and Technical Framework and restated in the Licensing Framework. TheLicensing Framework states [at page 36] that the “conditions will apply to all licences issued through the auction process for spectrum inthe 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 specifictime periods. However, they were made within the context of the Policy and Technical Framework and, therefore, form part of a policywhich is ongoing.

By issuing the licences with the attached conditions, the Minister will be acting upon policy. [43] Given this, and based on Moresby [at paragraph 24], above, which interpreted Krause to stand for the proposition that “[b]ecauseillegality goes to the validity of the policy rather than to its application, an illegal policy can be challenged at any time”, and the broaddefinition given to the term “matter” in May, I have concluded that the present issue falls within

section 18.1 and therefore the 30-daylimit 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. TheMinister 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 S.C.R. 160 (Alliance), at paragraph 26; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’Association, 2011 SCC 61, [2011] 3 S.C.R. 654 (Alberta Teachers), at paragraphs 30–31; Bell Canada v. Canada (Attorney General),2011 FC 1120, 397 F.T.R. 278, at paragraph 16; Goodwin v. Canada (Attorney General), 2005 FC 1185, 279 F.T.R. 100, at paragraphs22–24). Respondent’s submissions [45] The respondent submits that the Minister’s decision is a mixed question of fact, discretion, and policy such that deference willusually apply automatically (Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir), at paragraphs 46–47, 53 and62–64). Other than in exceptional circumstances, the

interpretation by a tribunal of its own statute or statutes closely connected to itsfunction are presumed to be questions of statutory

interpretation and subject to deference (Alberta Teachers, above, at paragraphs 30, 34and 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 marketplaceby use of a spectrum cap system. This situation is not unlike the situation in Agraira v. Canada (Public Safety and EmergencyPreparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paragraphs 48–50.

The Minister’s decision to use a spectrum cap is a pure policydecision and, therefore, it can only be challenged on limited grounds (Moresby, above, at paragraph 24). [47] Further, if the applicant seeks to invoke a true question of jurisdiction, it is required to demonstrate why the Court should notreview a tribunal’s

interpretation of its home statute on the deferential standard of reasonableness (Alberta Teachers, above, atparagraphs 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 paragraphs 51–64 ; Agraira , above, at paragraph 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 paragraph 54 ; Alliance , above, at paragraph 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 [at paragraph 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 S.C.R. 471, at paragraph 18 ; Dunsmuir , above, at paragraphs 58 and 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 [at paragraph 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 subsection 50(5) of the Personal Information Protection Act [S.A. 2003, c. P-6.5], 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 David Suzuki Foundation v. Canada (Fisheries and Oceans) , 2012 FCA 40 , [2013] 4 F.C.R. 155. 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 [S.C. 2002, c. 29] (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 [R.S.C., 1985, c.

F-14]; • 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, 451 N.R. 349, the Court found that whetheror not the Canadian Agricultural Review Tribunal had the legal authority to grant an extension of time for requesting a review of aviolation issued by the Canadian Food Inspection Agency is a question of statutory

interpretation and that [at paragraph 10]: This Court has established that the standard of review applicable to questions of statutory

interpretation made by the Tribunal iscorrectness: Doyon v. Canada (Attorney General), 2009 FCA 152 at paragraphs 30-32 (Doyon); Canada (Attorney General) v. Porcheriedes Cèdres Inc., 2005 FCA 59 at paragraph 13; Canada (Canadian Food Inspection Agency) v. Westphal-Larsen, 2003 FCA 383 atparagraph 7 (Westphal-Larsen). [57] Recently, in McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 (McLean), the SupremeCourt of Canada found that a reasonableness standard applied to the question of determining, for the purposes of section 161(6)(

d) of theSecurities Act, [R.S.B.C. 1966, c. 418] “the events” that trigger the six-year limitation period in

section 159. The Court found that thepresumption of deference to an administrative decision maker’s

interpretation of its home statute or statutes closely connected to itsfunction had not been rebutted. There, it was solely the Commission that was tasked with considering the legal question of interpretingthe subject provisions in the first instance, and there was no possibility of conflicting

interpretations with respect to the question at issue. [58] Further, at paragraph 22, the Court stated that the presumption endorsed in Alberta Teachers, “is not carved in stone” as theCourt “has long recognized that certain categories of questions—even when they involve the

interpretation of a home statute—warrantreview on a correctness standard (Dunsmuir, at paras. 58–61).” Further, “a contextual analysis may ‘rebut the presumption ofreasonableness review for questions involving the

interpretation of the home statute’ (Rogers Communications Inc. v. Society ofComposers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at para. 16)”. Thus, in McLean, the Courtagain acknowledged that Alberta Teachers ultimately left the door open to questions raising a true issue of vires or jurisdiction, evenwhen the

interpretation of a decision maker’s home statute is involved. [59] In my view, and as acknowledged by the applicant at the hearing of this matter, the present case is not a challenge to the wisdomor soundness of a government policy, but is a question of whether there is authority to enact decisions made under a policy. Theapplicant has not challenged the reasonableness of the Minister’s decision to impose conditions on spectrum licences in the 700 MHzband. While the

interpretation of the Minister’s home and closely related statutes is involved, the nature of the question posed to thisCourt is one of true jurisdiction in that a jurisdictional line between the authority of the Minister and the Governor in Council is at issue.Therefore, this is a question of statutory

interpretation of the nature which attracts a correctness standard of review. [60] Moreover, the RA does not contain a privative clause, the Minister did not act in an adjudicative capacity, and, while the Ministerhas expertise in telecommunications, this does not necessarily confer special legal expertise to interpret the relevant statutory provisionsto delineate authority as between the Minister and the Governor in Council which is also a question that the Court is better able to answerin these circumstances. [61] Accordingly, in my view, correctness is the appropriate standard of review on this application.

Issue 3: Did the Minister act outside his authority in prescribing the subject conditions for the issuance of spectrum licences for the 700MHz frequency band?

Applicant’s Submissions [62] The applicant submits, in essence, that while the Minister has the authority to issue spectrum licences and to fix terms andconditions, this is subordinate to the Governor in Council’s regulation making function and it is only the latter who has the authority todetermine who shall be eligible to be granted spectrum licences. [63] Subsection 4(1) of the DIA defines the scope of the Minister’s powers, duties and functions which includes telecommunicationmatters, including spectrum management.

However, this authority is limited to the extent that any such matter is not otherwise assignedby law to any other department, board or agency of the Government of Canada. In that regard, subsection 6(1) of the RA confersauthority on the Governor in Council to make regulations relating to a broad range of matters including spectrum management.

Pursuantto this power, the Governor in Council has enacted the Regulations which include “prescribing the eligibility of persons to whom radioauthorizations, or any class thereof, may be issued” by the Minister (paragraph 6(1)(b)). [64] The applicant submits that the Governor in Council is a “department, board or agency of the Government of Canada” within themeaning of subsection 4(1) of the DIA (Saskatchewan Wheat Pool v. Canada (Attorney General), (FC), [1993] F.C.J.No. 902 (QL), (1993), 107 DLR (4th) 190 (F.C.T.D.), at paragraph 6 (QL); Aviation Roger Forgues Inc. v.

Canada (Attorney General),2001 FCT 196; Momi v. Canada (Minister of Citizenship and Immigration), 2006 FC 738, [2007] 2 F.C.R. 291, at paragraph 8).Therefore, the effect of paragraph 6(1)(

b) of the RA when read together with subsection 4(1) of the DIA, is to exclude from theMinister’s powers, duties and functions, the power to address matters relating to the eligibility of persons to hold spectrum licences. [65] The Minister’s intention to refuse to issue licences authorizing use of a second block of spectrum to large wireless serviceproviders relates to “eligibility” and is therefore, beyond his jurisdiction.

Subsection 5(1) provides the Minister with authority to selectlicensees from those who are eligible, but this authority does not extend to deciding who shall be eligible, which is a legislative authorityconferred on the Governor in Council (Procureur Général du Canada v.

Compagnie de Publication La Presse, Ltée, (SCC), [1967] S.C.R. 60 (La Compagnie), at pages 75–76). [66] The RA, the TA, and the Broadcasting Act form part of the same “interrelated statutory scheme” and where telecommunicationsand broadcasting are concerned, it is the Governor in Council, not the Minister who determines eligibility (Reference re BroadcastingRegulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R. 489 (Reference ReBroadcasting), at paragraph 34; TA, subsection 16(2); Canadian Telecommunications Common Carrier Ownership and ControlRegulations, SOR/94-667; Broadcasting Act, subsection 9(1); Direction to the CRTC (Ineligibility of Non-Canadians), SOR 97-192). [67] Telecommunications common carriers and broadcasters rely heavily on radiocommunication to provide their services.

If the

Minister was empowered to determine “eligibility”, then the eligibility of a telecommunications common carrier or a broadcaster usingspectrum would be determined twice by two different arms of government with the Governor in Council in respect of eligibility tooperate as a telecommunications common carrier or broadcaster, and the Minister in respect of the use of spectrum by these entities.Statutes with similar subjects must be presumed to be coherent yielding harmonious

interpretations (Reference Re Broadcasting, above). [68] Pursuant to

section 6 of the RA, Parliament has expressly granted power to the Governor in Council to determine eligibilitywhich is not included in the list of powers conferred on the Minister in subsection 5(1). This is a strong indication by Parliament that itdid not intend the Minister to have that power (Tétreault-Gadoury v. Canada (Employment and Immigration Commission), (SCC), [1991] 2 S.C.R. 22, at page 33). There are also no grounds on which to imply such a power on the basis that the power is“necessarily incidental” to the Minister’s explicit powers (ATCO Gas and Pipelines Ltd. v.

Alberta (Energy and Utilities Board), 2006SCC 4, [2006] 1 S.C.R. 140 (ATCO), at paragraph 39). [69] Consistent with Driedger’s approach to statutory

interpretation, adopted by the Supreme Court of Canada, the power to issuelicences conferred on the Minister by subsection 5(1) of the RA must be interpreted in light of subsection 4(1) of the DIA, the otherprovisions of the RA including

section 6, and the wider statutory scheme of the TA and the Broadcasting Act. [70] Subsection 5(1.4) of the RA, which gives the Minister authority to adopt bidding qualifications, does not confer on him thepower to prescribe eligibility criteria. While the terms “eligibility” and “qualification” are related, the RA uses them differently.Therefore, this must be considered “intentional and indicative of a change in meaning or a different meaning” (Jabel Image Concepts Inc.v. Canada, , 257 N.R. 193 (F.C.A.), at paragraph 12).

The term “bidder qualification” as used in the RA relates totechnical and administrative aspects of the auction process (R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, at paragraph 51). TheMinister also differentiates between the terms “eligibility” and “bidder qualifications” in the Licensing Framework. [71] Subsection 5(1) of the RA and

section 7 of the TA do not confer authority on the Minister to prescribe eligibility criteria. Policycannot be used as authority to confer jurisdiction (Barrie Public Utilities v. Canadian Cable Television Assn., 2001 FCA 236, [2001] 4F.C. 237, at paragraph 53, affd 2003 SCC 28, [2003] 1 S.C.R. 476; Canada (Attorney General) v. Mowat, 2009 FCA 309, [2010] 4F.C.R. 579, at paragraph 99, affd sub nom. Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53,[2011] 3 S.C.R. 471).

Nor does the Minister’s responsibility for “orderly development and efficient operation of radiocommunication”pursuant to subsection 5(1) confer authority upon him to prescribe eligibility criteria. It only defines the purposes for which the licensingpower may be exercised, but does not expand the Minister’s powers, which remain subject to the Governor in Council’s regulatoryauthority pursuant to

section 6. Respondent’s Submissions [72] The respondent submits, essentially, that the Minister has the authority to issue spectrum licences and to fix the terms andconditions of such licences. The Minister exercised this authority reasonably in accordance with important policy considerations. [73] The respondent submits that the Governor in Council is not a “department, board, or agency of the Government of Canada”within the meaning of subsection 4(1) of the DIA. The applicant has misread the decision in R. in right of Canada v. SaskatchewanWheat Pool, (SCC), [1983] 1 S.C.R. 205.

Similar language to that effect in another statute has been interpreted to refer toa single governmental minister or minister and not the Governor in Council (Angus v. Canada, (FCA), [1990] 3 F.C.410 (C.A.), at pages 424–425). [74] The TA governs telecommunication in Canada generally, with the telecommunications policy objectives set out in

section 7 ofthat statute. The RA governs the licensing and regulation of radio apparatus and the use of the radio frequency in Canada. A “radioauthorization” is a licence, certificate or authorization issued by the Minister pursuant to paragraph 5(1)(

a) of the RA. A “radio licence”is a licence issued pursuant to subparagraph 5(1)(a)(

i) and a “spectrum licence” is issued pursuant to subparagraph 5(1)(a)(i.1). Aspectrum licence is a radio authorization, but is not a radio licence. The Minister’s powers under subsection 5(1) are broad and includefixing the terms and conditions of licences and planning the allocation and use of spectrum. In exercising his power, the Minister maytake into consideration all matters that he considers relevant for the orderly development and efficient operation of radiocommunicationin Canada and may have regard to the telecommunications policy in

section 7 of the TA. He also has the authority to utilize a competitivebidding process pursuant to subsections 5(1.2) and (1.4). [75] The Governor in Council has the power to prescribe eligibility criteria with respect to radio licences, not spectrum licences,pursuant to sections 9 and 10 of the Regulations. As the applicant conceded, the Governor in Council has not exercised its authority toprescribe eligibility criteria applicable to spectrum licences. [76] The respondent submits that the Minister’s

interpretation of his broad powers related to spectrum management was reasonable asit employed a contextual analysis of his home statute, the RA, and other closely connected statutes. [77] In deciding to impose conditions on spectrum licences for the 700 MHz band, the Minister considered all matters relevant to theorderly development and efficient operation of radiocommunication in Canada.

Further, the Minister had the authority to use a system ofcompetitive bidding to select the persons to whom spectrum licences will be issued in the 700 MHz band and to establish procedures,standards and conditions applicable to that system of competitive bidding.

The Minister interpreted his powers to include the ability todefine measures to promote a competitive post-auction market place by the use of a spectrum cap. [78] The respondent submits that if the Governor in Council had exclusive authority as suggested by the applicant, then the Minister’spowers would be reduced to that of rubber-stamping the issuance of licences.

Even if they applied, the Regulations would serve toprevent the Minister from offering a licence to anyone who does not meet the threshold eligibility requirements concerning Canadianincorporation and ownership and control, but they would not exhaust the measures that the Minister is legally able to consider. Thedecision to grant or deny a licence remains a matter of ministerial discretion (Sunny Handa et al., Communications Law in Canada, IssueNo. 46 (looseleaf (consulted on 22 November, 2013) Markham: LexisNexis, September 2013); Michael H.

Ryan, CanadianTelecommunications Law and Regulation (Scarborough, Ont.: Carswell, 1993). The power to define the conditions for the auction of the700 MHz band necessarily includes the power to define measures to promote competition by establishing parameters of the spectrum

licences (ATCO, above, at paragraph 51). [79] The respondent submits that the Minister’s decision to use a spectrum cap was reasonable as he exercised his discretion in thepublic interest for the benefit of all Canadians. The rationale for the cap was clearly articulated in the Policy and Technical Frameworkand in the Licensing Framework. TELUS and other large wireless service providers are not ineligible to participate in the auction as theycan bid on spectrum within the parameters established by the Minister.

The spectrum cap governs how the Minister grants licences foravailable spectrum in specific geographic areas. It is a temporary restriction specific to the 700 MHz band that functions for a definedperiod of five years as a condition of the spectrum licences to prevent the transfer from an existing licence to large wireless serviceproviders.

It is also a temporary restriction on the ability of large wireless service providers to aggregate prime spectrum in greateramounts in defined geographic areas. [80] The respondent states that the courts have accepted the validity of similar policies that allocate access to a scarce andcommercially valuable resource among many applicants or prioritize applicants (Carpenter Fishing Corp. v. Canada, (FCA), [1998] 2 F.C. 548 (C.A.) (Carpenter Fishing); Association des crevettiers acadiens du Golfe inc. v.

Canada (AttorneyGeneral), 2011 FC 305, 385 F.T.R. 302 (Association des crevettiers acadiens du Golfe inc.); Vaziri v. Canada (Minister of Citizenshipand Immigration), 2006 FC 1159, 52 Admin. L.R. (4th) 118 (Vaziri)). Similar considerations are relevant in allocatingradiocommunication and which flow from the explicit powers of the Minister to promote the establishment, development and efficiencyof communication systems.

The Minister’s decision is clearly and unequivocally linked to enhancing industry efficiency andcompetitiveness and is consistent with the mandates under the DIA and the RA. [81] Further, the Regulations do not apply to the 700 MHz band spectrum auction as they apply to radio licences and not spectrumlicences. Therefore, there is no conflict between the regulatory provisions and the Minister’s policy decision. The existence of an unusedregulation making power does not automatically function to limit the Minister’s ability to exercise his statutory discretionary authority(Vaziri, above, at paragraph 35).

Analysis [82] The dispute in the present case concerns whether in fixing the conditions on spectrum licences for the 700 MHz band, theMinister acted outside his authority in making a determination on eligibility. That is, whether the conditions imposed by the Minister, ineffect, pertain to “eligibility” and are therefore beyond his jurisdiction. [83] The Minister’s authority derives from statute and the Minister can only act within the constraints of that legislated jurisdiction. InVaziri, above, Justice Snider quoted [at paragraph 21] the following from Greenisle Environmental Inc. v.

Prince Edward Island, 2005PESCTD 33, 248 Nfld. & P.E.I.R. 39, at paragraph 17: …[it is a] fundamental principle that executive powers are granted by statute and defined and limited by statute. A statutory delegatemay make a decision or rule only if authorized by statute to do so. A statutory delegate has no inherent authority…. [84] Accordingly, in the present case, the Court must interpret the relevant statutes and determine whether the Minister acted withinhis lawful authority. [85] In Apotex Inc. v.

Canada (Health), 2012 FCA 322, 112 C.P.R. (4th) 185, the Federal Court of Appeal provided the followingsummary of the preferred approach to statutory

interpretation as described by the Supreme Court of Canada [at paragraphs 24–26 and28]: First, while I agree that it is necessary to review the scope and nature of the Minister’s authority under the Regulations, the Regulationsmust be interpreted in accordance with the preferred approach to statutory

interpretation. This approach has been expressed in the following terms by the Supreme Court of Canada: Although much has been written about the

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

Interpretation (1997); RuthSullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. 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 their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. … The Supreme Court restated this principle in the following terms in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2S.C.R. 601 at paragraph 10 (emphasis added): It has been long established as a matter of statutory

interpretation that “the words of

an Act are to be read in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”:see 65302 British Columbia Ltd. v. Canada, (SCC), [1999] 3 S.C.R. 804, at para. 50. The

interpretation of a statutoryprovision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as awhole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in theinterpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of thewords plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in allcases the court must seek to read the provisions of

an Act as a harmonious whole. …

The proper limit to the use of context was explained in the following way by the majority of the Supreme Court in Montréal (City) v.2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141 at paragraph 15: In the

interpretation process, the more general the wording adopted by the lawmakers, the more important the context becomes. Thecontextual approach to

interpretation has its limits. Courts perform their interpretative role only when the two components ofcommunication converge toward the same point: the text must lend itself to

interpretation, and the lawmakers’ intention must be clearfrom the context. [Emphasis added by the Federal Court of Appeal.] [86] Therefore, the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniouslywith the scheme of the Act, the object of the Act, and the intention of Parliament. In the present case, the relevant statutes are the RA andits Regulations, the DIA, and the TA. In Reference Re Broadcasting, above, Justice Rothstein found that the RA, the TA as well as theCopyright Act [R.S.C., 1985, c.

C-42] and the Broadcasting Act, form part of an interrelated statutory scheme. In my view, the same istrue of the RA, its Regulations, the TA and the DIA. [87] In ATCO, above, the Supreme Court of Canada offered further guidance in statutory

interpretation which is of relevance in thismatter [at paragraph 51]: The mandate of this Court is to determine and apply the intention of the legislature (Bell ExpressVu, at para. 62) without crossing the linebetween judicial

interpretation and legislative drafting (see R. v. McIntosh, (SCC), [1995] 1 S.C.R. 686, at para. 26;Bristol-Myers Squibb Co., at para. 174). That being said, this rule allows for the application of the “doctrine of jurisdiction by necessaryimplication”; the powers conferred by an enabling statute are construed to include not only those expressly granted but also, byimplication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutoryregime created by the legislature (see Brown, at p. 2-16.2; Bell Canada, at p. 1756).

Canadian courts have in the past applied the doctrineto ensure that administrative bodies have the necessary jurisdiction to accomplish their statutory mandate: When legislation attempts to create a comprehensive regulatory framework, the tribunal must have the powers which by practicalnecessity and necessary implication flow from the regulatory authority explicitly conferred upon it. [88] The RA provides a division of powers between the Minister of Industry and the Governor in Council.

Pursuant to the RA, theMinister has the authority to grant and deny spectrum licences and among other powers, to: • fix spectrum licence terms and conditions (subparagraph 5(1)(a)(i.1)); • plan the allocation and use of the spectrum (paragraph 5(1)(e)); and • do any other thing necessary for the effective administration of that Act (paragraph 5(1)(n)).

In exercising his powers, the Minister is to take into account all matters that he considers relevant for ensuring the orderly developmentand efficient operation of radiocommunication in Canada (subsection 5(1)) and may have regard to the objectives of the Canadiantelecommunications policy objectives set out in

section 7 of the TA (subsection 5(1.1)). [89] The Minister is also authorized, when exercising his powers to issue radio licences pursuant to paragraph 5(1)(a), to use a systemof competitive bidding “to select the persons to whom radio authorizations will be issued” (subsection 5(1.2)) and to establishprocedures, standards and conditions including bidder’s qualifications, in selecting those persons (subsection 5(1.4)).

Parliament has not,however, used the term “eligibility” in subsection 5(1). [90] The RA empowers the Governor in Council to make regulations prescribing the eligibility of persons to whom radioauthorizations may be issued including eligibility criteria based on individual citizenship or permanent residence and corporate residence,ownership and control (paragraph 6(1)(b)); prescribing the qualifications of persons to whom such authorizations may be issued(paragraph 6(1)(c)); the terms and conditions of radio authorizations, including in th

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