Fareau et al v. Bell Canada et al: When to Leave Issues to the Canadian Radio-television and Telecommunications Commission

  • 05 octobre 2023
  • Carlo Di Carlo

In its recent decision in Fareau v Bell Canada, 2023 ONCA 303, the Ontario Court of Appeal weighed in on when it is appropriate for Superior Courts to become involved in areas that fall within the expertise of the Canadian Radio-television and Telecommunications Commission (“CRTC”). Essentially, the Court of Appeal held that where there is overlap, the Superior Court should defer to the CRTC.

  1. Background

At first instance, Justice Perell stayed a class proceeding against Bell Canada and the Ontario Ministry of Community Safety and Correctional Services (“Ontario”). The class proceeding dealt with the reasonableness of collect call rates charged under the Offender Telephone Management System (“OTMS”) that Bell operated under an agreement with Ontario. The plaintiffs alleged that the rates that Bell charged under the OTMS were excessive.

Bell and Ontario brought motions seeking a declaration that the Ontario Superior Court lacked jurisdiction to hear the matter or, in the alternative, ought to exercise its discretion to decline jurisdiction, and defer to the CRTC’s specialized expertise. Justice Perell only addressed the alternative requested relief, and concluded that “it would not be an appropriate exercise of this court’s jurisdiction” to do so. He declined to exercise this discretion after considering the following factors:

  • He considered the CRTC’s “expansive jurisdiction to regulate the telecommunications industry in Canada”, including the setting of rates. His Honour noted that determining the reasonableness of rates is a “central responsibility of the CRTC” and that courts routinely recognized its “specialized expertise” to do so.
  • He also considered the “pith and substance” of the Appellants’ claim and found that it fell within the jurisdiction of the CRTC. Justice Perell noted that the “heart and soul, and letter and spirit” of the claim was about the rates charged on the OTMS.
  • Finally, Justice Perell concluded that the CRTC was the preferred forum to resolve the dispute. He referred to the several cases that have recognized that the Superior Court ought not exercise jurisdiction where the adjudication of a dispute “would require a consideration of the legislative scheme administered by the CRTC”.

As a result of these conclusions, Justice Perell permanently stayed the plaintiffs’ claims against Bell and Ontario.