The Supreme Court of Canada has rejected TekSavvy Solutions Inc.’s request for leave to appeal the CRTC’s reversal of a 2019 decision that would have slashed wholesale access rates for competitor internet providers.

The country’s highest court issued its judgment Thursday, upholding the Federal Court of Appeal’s 2024 decision and putting to rest a fight that has stretched on for almost four years. 

The roots of the dispute go back to 2019, with a CRTC decision that significantly lowered the rates that large telecom companies could charge smaller competitors for access to their networks. According to the CRTC, the move was meant to foster competition and reduce prices for consumers, but major telcos — including BCE Inc. — challenged the decision, arguing that the rates were unsustainable. 

In 2021, the CRTC issued a new decision, reversing the 2019 order and setting wholesale rates to a higher interim rate established in 2016. 

TekSavvy — one of several competitors that would have benefitted from lower wholesale rates and would have received three years’ worth of retroactive payments from the large carriers — took the CRTC to court, arguing that the reversal was legally flawed and procedurally unfair. 

The company also accused then-CRTC chair Ian Scott of being biased towards Bell, citing a controversial private meeting between him and the telco’s CEO Mirko Bibic. Canada’s Conflict of Interest and Ethics Commissioner declined to open an investigation on the meeting, having found that the two are not “friends” and therefore, did not contravene the Conflict of Interest Act.

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Last summer, the appeals court rejected TekSavvy’s arguments, prompting the company to try and take its case to the next level. Its request to the Supreme Court has now been thrown out. 

TekSavvy challenged Federal Court of Appeal Justice David Stratas’ interpretation of the CRTC’s obligations under the Telecommunications Act, particularly its responsibility to set “just and reasonable” rates determined using “any method or technique it considers appropriate.” 

The company argued that the regulator must have an established, “articulable” method or technique it uses when making rate-setting decisions, and that Stratas made a “broad, limitless interpretation” of the act.

“Teksavvy’s real concern is disagreement with the policy adopted by the CRTC and the discretion it exercised in setting the rates, matters that we are powerless to address,” Stratas wrote in his decision at the time.

He noted that although the CRTC did not conduct another costing analysis of the wholesale regime before issuing its 2021 decision, the commission did rely on interim rates established in 2016, which were set using usual costing methods and analysis. 

“The CRTC did not pluck figures from the air or throw darts at a dartboard,” said Stratas.

TekSavvy declined to comment on the Supreme Court’s dismissal, while the CRTC did not immediately respond.

phalentm@thewirereport.ca 

With files from hdaley@thewirereport.ca and The Wire Report’s archives