GLOBALIVE WIRELESS MANAGEMENT CORP. Appellant v. PUBLIC MOBILE INC., ATTORNEY GENERAL OF, 2011 FCA 119
Opinion
Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale Date: 20110328 Docket: A-78-11 Citation: 2011 FCA 119 Present: STRATAS J.A. BETWEEN: GLOBALIVE WIRELESS MANAGEMENT CORP. Appellant and PUBLIC MOBILE INC., ATTORNEY GENERAL OF CANADA , AND TELUS COMMUNICATIONS COMPANY Respondents Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario , on March 28, 2011. REASONS FOR ORDER BY: STRATAS J.A. Date: 20110328 Docket: A-78-11 Citation: 2011 FCA 119 Present: STRATAS J.A. BETWEEN: GLOBALIVE WIRELESS MANAGEMENT CORP. Appellant and PUBLIC MOBILE INC., ATTORNEY GENERAL OF CANADA , AND TELUS COMMUNICATIONS COMPANY Respondents
REASONS FOR ORDER STRATAS J.A. [1] The moving parties, Alliance of Canadian Cinema, Television and Radio Artists, Communications, Energy andPaperworkers Union of Canada, and Friends of Canadian Broadcasting (the moving parties), move under rule 109 for leave to intervenein this appeal. [2] The Attorney General of Canada, supported by Globalive Wireless Management Corp., opposes the motion.
TELUSCommunications Company consents to the motion, provided that no change will be made to the deadline for filing the respondentsmemoranda of fact and law. [3] The issue in this appeal is whether the Governor in Council, in its decision (P.C. 2009-2008 dated December 10, 2009),acted within its statutory mandate under the Telecommunications Act, S.C. 1993, c. 38. The Federal Court found (at 2011 FC 130) thatthe Governor in Council acted outside of its statutory mandate.
It quashed the Governor in Councils decision. [4] In the Federal Court, the moving parties were permitted to intervene: see the order of Prothonotary Tabib and the order ofProthonotary Aronovitch, dated April 13, 2010 and June 8, 2010, respectively. The moving parties intervention was restricted to theissue whether the Governor in Council, in applying subsection 16(3) of the Telecommunications Act, failed to consider, failed to giveeffect, or acted inconsistently with the non-commercial objectives of the Act set out in the opening words of
section 7 and subsections7(a), (
h) and (i). The thrust of the moving parties submission in the Federal Court was that the Governor in Council improperly accordedparamount importance to increasing competition in the telecommunications sector to the prejudice of the Acts non-commercialobjectives. [5] I grant the motion for leave to intervene in the appeal in this Court for the following reasons: a.
In my view, absent fundamental error in the decision in the Federal Court to grant the moving parties leave to intervene, somematerial change in the issues on appeal, or important new facts bearing on the issue, this Court has no reason to exercise its discretiondifferently from the Federal Court. No one has submitted that there is fundamental error, material change or important new facts. b. It is evident from the reasons of the Federal Court that the moving parties submissions were relevant to the issues and useful to theCourt in its determination. c.
It is not necessary for the moving parties to establish that they meet all of the relevant factors in Rothmans Benson and Hedges Inc.v. Canada, (FC), [1990] 1 F.C. 84 (T.D.), affirmed (FCA), [1990] 1 F.C. 90 (C.A.), includingwhether the moving parties will be directly affected by the outcome: Boutique Jacob Inc. v. Paintainer Ltd., 2006 FCA 426 at paragraph21, 357 N.R. 384. I am satisfied that the moving parties in this public law case possess a genuine interest namely, a demonstratedcommitment to the strict
interpretation of the foreign ownership restrictions in the Telecommunications Act. This interest is beyond amere jurisprudential interest, such as a concern that this Courts decision will have repercussions for other areas of law: see, e.g.,Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd., a 2000 decision of this Court, belatedlyreported at (FCA), [2010] 1 F.C.R. 226.
Further, the moving parties will be able to assist the Court in a useful way inthis public law case, bringing to bear a distinct perspective and expertise concerning the issues on which they seek to intervene:Rothmans Benson and Hedges Inc. (F.C.A.), supra at page 92.
It is in the interests of justice that the moving parties be permitted tointervene in this public law case. [6] This Court, acting under rules 53(1) and 109(3), will attach terms to the order granting the moving parties leave to intervene. [7] The moving parties written and oral submissions shall be limited to the subject-matters set out in paragraph 4, above. Thosesubmissions shall not duplicate the submissions of the other parties and shall not add to the factual record in any way. [8] This appeal has been expedited and a
schedule has been set. That
schedule shall not be disrupted.
[ 9 ] The moving parties support the result reached by the Federal Court. Accordingly, the deadline for their memorandum of fact and law should be set around the time set for the memoranda of fact and law of the parties who also are supporting the result reached by the Federal Court, namely TELUS Communications Company and Public Mobile Inc.
So that the moving parties can be sure that their submissions do not duplicate those of any of the other parties, the deadline for their memorandum of fact and law should be just after TELUS Communications Company and Public Mobile Inc. have filed their memoranda of fact and law (May 2, 2011). Therefore, the deadline for the service and filing of the moving parties memorandum shall be May 5, 2011. [ 10 ] The moving parties memorandum shall be limited to 12 pages in length. The moving parties shall be permitted to make oral submissions at the hearing of the appeal for a total of no more than 20 minutes.
No costs will be awarded for or against any of the interveners. [ 11 ] The style of cause shall be amended to reflect the fact that the moving parties are now interveners. "David Stratas" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-78-11 STYLE OF CAUSE: Globalive Wireless Management Corp. v. Public Mobile Inc., Attorney General of Canada , and Telus Communications Company MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: Stratas J.A. DATED: March 28, 2011 WRITTEN REPRESENTATIONS BY :
Steven Shrybman FOR THE PROPOSED INTERVENERS Malcolm M. Mercer FOR GLOBALIVE WIRELESS MANAGEMENT CORP. Robert MacKinnon Alexander Gay FOR THE ATTORNEY GENERAL OF CANADA Stephen Schmidt FOR THE RESPONDENT, TELUS COMMUNICATIONS COMPANY SOLICITORS OF RECORD : Sack Goldblatt Mitchell LLP Ottawa , Ontario FOR THE PROPOSED INTERVENERS McCarthy Tetrault Toronto , Ontario FOR GLOBALIVE WIRELESS MANAGEMENT CORP. Myles J. Kirvan Deputy Attorney General of Canada FOR THE ATTORNEY GENERAL OF CANADA TELUS Communications Company Ottawa, Ontario FOR THE RESPONDENT, TELUS COMMUNICATIONS COMPANY
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