Executive Summary: Key Legal and Evidentiary Issues

• Rogers appealed a CRTC decision selecting Québecor’s proposal in a final offer arbitration (FOA) over wholesale mobile access rates.

• The appeal was restricted to questions of law or jurisdiction under subsection 64(1) of the Telecommunications Act.

• Rogers alleged procedural unfairness due to undisclosed adjustments, confidentiality restrictions, and refusal to produce a document.

• The Court found no breach of procedural fairness in the CRTC’s handling of Rogers’ concerns.

• Rogers claimed the approved rates violated the “just and reasonable” requirement of subsection 27(1) of the Act.

• The Court held there was no legal error and dismissed the appeal, awarding costs to Québecor.

Facts and outcome of the case

Rogers Communications Canada Inc. brought an appeal to the Federal Court of Appeal challenging a decision made by the Canadian Radio-television and Telecommunications Commission (CRTC) during a final offer arbitration (FOA) process. The dispute involved wholesale access rates for mobile virtual network operators (MVNOs), where the CRTC had to select between final rate proposals submitted by Rogers and its competitor, Québecor Média Inc.

Rogers objected to the CRTC’s decision, which favored Québecor’s proposal, and appealed under subsection 64(1) of the Telecommunications Act, which limits appellate review to questions of law or jurisdiction. Rogers claimed its right to procedural fairness was denied in three ways: first, that the CRTC made analytical adjustments without disclosing the details; second, that Rogers was denied access to Québecor’s confidential information for counsel and expert review; and third, that the CRTC refused to compel the production of a document previously submitted to the Competition Tribunal.

The Federal Court of Appeal rejected each of Rogers’ fairness arguments. It concluded that the CRTC acted within its discretion, followed established confidentiality protocols, and did not violate any procedural rights. The Court further addressed Rogers’ argument that the approved rates were not "just and reasonable" under subsection 27(1) of the Act. Rogers asserted that the rates did not allow a fair short-term return on investment. However, the Court emphasized that the CRTC’s reasoning was based on long-term fairness in line with jurisprudence, particularly a Supreme Court precedent regarding return on capital.

Ultimately, the Court found no legal error in the CRTC’s decision. It dismissed Rogers’ appeal and awarded costs to Québecor Média Inc. The judgment confirmed the CRTC’s broad discretion in rate-setting and confidentiality matters in the context of telecommunications regulation.