Public Mobile, Telus argue it’s too late to send Globalive decision back to cabinet

Public Mobile Inc. and Telus Corp. say it’s too late for the Federal Court of Appeal to refer a lower court decision on Globalive Wireless Management Corp. back to the federal cabinet. Public Mobile and Telus argue that the Federal Court was correct when it ruled in February not to refer the matter back to cabinet. They add that the window to do so has now closed, noting that section 12 of the Telecommunications Act limits cabinet’s jurisdiction to vary CRTC decisions to one year. “The time limit is an integral part of the regulatory scheme established by the Act,” Public Mobile’s memorandum to the court says. “The court has no jurisdiction to amend it.” Telus added in court documents that cabinet’s “authority to deal with the matter was exhausted.” On Feb. 4, the Federal Court struck down a Conservative government decision in late 2009 that had allowed Globalive to operate as a wireless carrier under the Wind Mobile brand. The cabinet decision overturned an earlier CRTC ruling that said, due to Globalive’s debt with Egyptian telco Orascom Telecom, the company was controlled “in fact” by non-Canadians. Orascom Telecom owns a majority of Globalive’s debt. Globalive and the federal cabinet are now appealing the Federal Court decision. A court hearing is scheduled for Wednesday in Ottawa. In reply comments filed with the court Friday, Globalive said the respondents’ argument “misapprehends the basis upon which” the court is entitled to refer matters back to cabinet. Globalive submitted its reply in response to memoranda filed by Public Mobile, Telus and a cultural group that includes the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), the Communications, Energy and Paperworkers Union of Canada, and the Friends of Canadian Broadcasting. Globalive pointed to section 18.1 of the Federal Courts Act, which allows the court to refer a decision of a federal board, commission or other tribunal back to cabinet. These provisions contain no time limits, Globalive said. It also argues that it was not possible to meet the time limits within the Telecom Act. The CRTC ruled in October 2009 that Globalive didn’t meet the Canadian ownership standards, the company noted. Cabinet issued its order-in-council decision, allowing Globalive to launch in Canada, in December 2009. Public Mobile applied for judicial review of the cabinet decision in January 2010, and although memoranda were filed by June 2010, the court didn’t hear the case until January 2011. “By establishing a one-year time limit for the Governor in Council to act under section 12(1) of the Telecom Act, Parliament did not intend to limit the ability of the Federal Courts or the Supreme Court of Canada to act under the Federal Court provisions, nor the Governor in Council’s authority to respond to such action,” Globalive wrote. Telus wrote that not referring the decision back to cabinet “indirectly” sends it back to the CRTC. “A re-attendance before the CRTC in 2011 would permit Globalive to adduce evidence before the CRTC of financing opportunities from third parties aside from Orascom,” Telus’ memorandum said. In a recent speech, Globalive chairman Anthony Lacavera said his company could “more robustly” demonstrate its Canadian ownership and control today than in 2009. “We were using a lot resources from Orascom and from Wind in the early-going to get the business off the ground as quickly as we did,” he said. Lacavera said that if he loses the appeal, he would appeal the decision to the Supreme Court. The cultural groups added that cultural protection issues weren’t considered. “There is certainly no evidence that the GIC considered how or whether adopting this global brand would contribute to maintaining Canada’s identity or sovereignty, or represent and reflect Canadian culture,” the groups wrote in an intervention filed with the court. But Globalive said in court documents that the groups are falsely linking the Telecom Act to culture. The company wrote the act affirms the role of telecommunications in sovereignty and identity in the same way as infrastructure such as railroads and highways. “Unlike radio and television which provide content, telecommunications provides a means for communication. In the case of Globalive, the means are wireless telephones,” Globalive wrote. The company added that no special status was granted to non-commercial or cultural objectives under the Telecom Act. news@thewirereport.ca

Public Mobile, Telus argue it’s too late to send Globalive decision back to cabinet

News | May 17, 2011

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