Date: 20050419
Docket: A-364-04
Citation: 2005 FCA 143
Present: LÉTOURNEAU J.A.
BETWEEN:
TELUS COMMUNICATIONS INC.
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on April 19, 2005.
REASONS FOR ORDER BY: LÉTOURNEAU J.A.
Date: 20050419
Docket: A-364-04
Citation: 2005 FCA 143
Present: LÉTOURNEAU J.A.
BETWEEN:
TELUS COMMUNICATIONS INC.
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
Facts and procedure
[1] Telus Communications Inc. (TCI) was granted leave to appeal on four specific issues with respect to two decisions of the Canadian Radio-television and Telecommunications Commission (CRTC): a decision dated March 26, 2004 and a decision dated April 7, 2004 entitled Treatment of partnerships for the purpose of telecommunications fees, Telecom Circular CRTC 2004-3.
[2] In his Memorandum of Fact and Law filed on February 28, 2005, the respondent raised, in paragraphs 22 to 25, a jurisdictional issue: whether Telecom Circular CRTC 2004-3 is a decision which can be the subject of an appeal under section 64 of the Telecommunications Act.
[3] In answer to the respondent's contention, TCI filed a motion to strike "the additional issue raised by the respondent in paragraphs 22-25 of its Memorandum of Fact and Law". It seeks costs of the motion. As an alternative to striking the issue, TCI is willing to accept that the issue raised by the respondent be properly addressed as a Motion rather than simply through oral argument during the hearing of the appeal. Consequently, it requests that the Court direct an oral hearing of the Motion at the beginning of the appeal, pursuant to Rule 369(4) of the Federal Courts Rules.
The submissions of the parties
[4] TCI submits that the respondent is adding an issue to the appeal that was not granted in the leave to appeal and that was not raised at the leave stage. Its position is that this jurisdictional issue should have been raised at the leave to appeal stage. In addition, to do it in the factum is a collateral attack on the leave Order and a breach of the res judicata or issue estoppel principle that applies to the leave to appeal Order granted by this Court in respect of Telecom Circular CRTC 2004-3, and, finally, that there are no compelling reasons to vary the Order granting leave.
[5] The respondent opposes every contention of TCI. He explains, as follows, his omission to raise the issue at the leave stage.
[6] The respondent was aware of the case of Canadian Institute of Public and Private Real Estate Companies and Building Owners and Managers Association-Canada v. Bell Canada et al. A-525-03 which was pending before this Court at the time of TCI's leave application. That case raised a similar issue: whether statements by the CRTC regarding its jurisdiction in future cases constitute a decision within the meaning of section 64(1) of the Telecommunications Act. However, no decision had been rendered yet. Indeed, the decision of our Court was only released on June 21, 2004, i.e. 15 days after TCI's application for leave to appeal was granted. Our Court held that the statements did not constitute a decision within the meaning of the Act and were merely guidelines or comments of no legal effect. Therefore, this Court had no jurisdiction to hear the appeal.
[7] On November 25, 2004, the respondent brought the decision in Canadian Institute to TCI's attention and informed it that, upon the authority of that decision, it might argue that this Court lacks jurisdiction in the appeal from the CRTC's Circular CRTC-2004-3.
Decision on the motion
[8] It is not necessary for me to discuss in detail all the arguments raised by the parties. Suffice it to say that the issue raised by the respondent is a jurisdictional issue. TCI does not deny that fact.
[9] Issue estoppel and res judicata do not apply to a decision rendered without jurisdiction: see Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, at paragraphs 33, 35, 36 and 51. Such decision can also be the subject of collateral attacks: see Telus Communications Inc. v. Canada (CRTC), 2004 FCA 365; Laplante v. Canada (Attorney General), [2003] 4 F.C. 1118, at paragraph 14 (F.C.A.).
[10] For a sound, proper and orderly administration of justice, a question going to the jurisdiction of the Court to adjudicate can always be raised.
[11] In Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at page 644, the Supreme Court addressed this question. The Court had granted Mr. Idziak leave to appeal on a single ground. The respondents raised, not at the stage of the application for leave, but shortly before the hearing, a jurisdictional question with respect to the decision for which leave to appeal had been granted. By restricting the leave to appeal, the Court recognized that it had limited its own jurisdiction. It also stated that "the respondents should have advanced the jurisdictional argument in response to Mr. Idziak's application for leave". However, the Court ruled that the jurisdictional issue could be raised. Cory J. wrote:
By its order, the Court limited the scope of the appeal to this sole ground and thus limited its own jurisdiction. In these circumstances, the grounds of appeal should not be expanded beyond the ground set out in the order. On this point see R. v. Wigman, supra, at p. 258, R. v. Warner, [1961] S.C.R. 144, at p. 151, Lizotte v. The King, [1951] S.C.R. 115, at p. 133, and Canadian Dredge & Dock Co. v. The Queen, [1985] 1 S.C.R. 662, at p. 671.
Nonetheless, the Court should always have the capacity to consider its own jurisdiction. It should never be placed in a position that would require the Court to rule on a matter in which it did not have jurisdiction. That would offend the rule of law underlying the judicial system that, in the absence of the requisite jurisdiction, a court has no authority to hear a case. It follows that an issue as to the Court's jurisdiction must be the exception to the rule of limited jurisdiction pronounced in Wigman, supra. On this basis the respondents' submissions on jurisdiction can be considered.
[12] TCI relies upon a subsequent decision of the Supreme Court in R. v. Keegstra, [1995] 2 S.C.R. 381 to submit that where leave to appeal is granted only with respect to restricted issues, the respondent is limited to arguing those issues set out in the Order granting leave. In order to argue new issues, a respondent needs leave of the Court. It invokes in support of its contention the following statement found at paragraph 29 of the decision:
Leave granted under the Criminal Code provisions differs from leave granted under s. 40 of the Supreme Court Act in civil matters. While appeal routes in civil cases are not at issue in this motion, it is useful to clarify that the decision in Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, is not relevant to criminal appeals. In Idziak, leave was granted on one ground only and both parties were restricted in their argument to addressing that ground. In civil matters, leave to appeal may be sought with respect to any finding adverse to the party in question. The number of such findings in a civil case is nearly always much greater than in a criminal case. Accordingly, as a matter of policy, when restricted leave is granted in civil cases, the respondent will normally be limited to arguing those issues set out by the Court in its order granting leave. A respondent who wishes to avoid this restriction should seek relief therefrom in the response to the application for leave to appeal or by application to the Court prior to the hearing. Such an application would succeed if, in the opinion of the Court, limited grounds of appeal would operate adversely to the respondent.
(emphasis added)
[13] I understand this statement of the Supreme Court and the position taken by TCI, which corresponds to its alternative position, to mean that a jurisdictional issue can still be raised after the leave to appeal stage, but by way of application to the Court prior to the hearing. In my respectful view, this approach is, for a number of reasons, preferable to merely raising it in a few paragraphs of the respondent's factum.
[14] First, the jurisdictional issue relating to the power of this Court to hear the appeal is a preliminary matter involving a question of law which ought to be raised at the outset and which, if successful, puts an end to the appeal proceedings. It may result in saving of judicial time and resources.
[15] Second, the issue is likely to be better factually and legally defined and developed if it is brought up by way of an application rather than through a few submissions in the respondent's factum.
[16] Third, an application will allow the appellant to be better informed of the issue and of the respondent's contentions and will enable the appellant to more fully address them.
[17] Fourth, in the end, the Court will benefit from a more thoroughly articulated discussion of the jurisdictional issue.
Conclusion
[18] For these reasons, I will allow the appellant's motion, strike paragraphs 22 to 25 from the respondent's Memorandum of Fact and Law and order as follows:
a) if the respondent wishes to raise an objection to the jurisdiction of this Court with respect to the CRTC's decision Telecom Circular CRTC 2004-3, he shall serve and file, within 21 days of the present decision, a notice of motion in Form 359, pursuant to Rule 369 of the Federal Courts Rules;
b) within 21 days of the service of the moving party's motion record, TCI shall serve and file its own motion record;
c) within 15 days of service of TCI's own motion record, the moving party shall, if it wishes, serve and file a reply; and
d) the motion shall either be decided as a 369 motion on the basis of the written representations or be heard at the beginning of the appeal by the panel hearing the appeal.
[19] TCI shall be awarded the costs of this motion.
"Gilles Létourneau"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-364-04
STYLE OF CAUSE: TELUS COMMUNICATIONS INC. v. ATTORNEY GENERAL OF CANADA
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: LÉTOURNEAU J.A.
DATED: April 19, 2005
WRITTEN REPRESENTATIONS BY:
|
John Lowe |
FOR THE APPELLANT |
|
John S. Tyhurst |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
BENNETT, JONES LLP Calgary, Alberta |
FOR THE APPELLANT |
|
JOHN H. SIMS, Q.C. Ottawa, Ontario |
FOR THE RESPONDENT |