Executive Summary: Key Legal and Evidentiary Issues

• Smaller telecommunications companies challenged the Governor in Council's refusal to vary a CRTC policy granting major telecoms wholesale access to their infrastructure

• TELUS was granted respondent status as it would be directly affected by any variation of the CRTC policy, while SaskTel's motion was denied for lacking prejudicial impact from the relief sought

• The Attorney General's motion to strike succeeded based on the existence of adequate alternative remedies available to the applicants

• Judicial review was deemed discretionary, with the Court exercising its power to dismiss where mootness and lack of practical utility were present

• Applicants' substantive concerns were already being addressed through their pending Federal Court of Appeal appeal and second Governor in Council petition

• Standing requirements under Federal Courts Rules require respondents to be "directly affected" by the order sought, not merely by the underlying decision

Background and parties involved

Cogeco Communications Inc. and Bragg Communications Inc. (operating as Eastlink) brought an application for judicial review before the Federal Court of Canada, challenging a decision by the Governor in Council. The applicants are smaller telecommunications companies operating in Canada's internet service market. The respondent was the Attorney General of Canada, with TELUS Communications Inc. and Saskatchewan Telecommunications (SaskTel) seeking to be added as respondents.

The CRTC policy at the heart of the dispute

On August 20, 2024, the CRTC issued Telecom Regulatory Policy CRTC 2024-180, Competition in Canada's Internet Service Markets. One effect of this policy is to grant Canada's three major telecommunications companies—Bell, Rogers, and TELUS—wholesale access to other companies' infrastructure for the purpose of offering internet services to the public. The applicants feared this policy would give an unfair advantage to their competitors, that they would be driven out of the market, and that competition for internet services would be reduced to the detriment of the public.

Procedural history and multiple challenges

The applicants challenged the CRTC's initial decision through two avenues. Pursuant to section 62 of the Telecommunications Act, they asked the CRTC to reconsider its decision, arguing based on new evidence that the CRTC made several errors of law and misapprehended the impact of its new policy on competition. They also petitioned the Governor in Council to vary the decision pursuant to section 12 of the Act. On June 20, 2025, the CRTC issued its review and vary decision (CRTC 2025-154), refusing to change its initial policy after finding that there was no evidence that the new policy would have the long-term effect of lessening competition or harming the applicants. On August 6, 2025, the Minister of Industry issued a press release stating that the Governor in Council would not exercise its power to vary the CRTC's initial decision. The applicants subsequently appealed the review and vary decision to the Federal Court of Appeal pursuant to section 64 of the Act, where leave was granted on September 10, 2025, and also brought a new petition to the Governor in Council on September 18, 2025.

Motions to join the proceedings

TELUS, one of Canada's three major telecommunications companies that stands to benefit from the CRTC's policy, sought to be added as a respondent. The Court granted this motion, finding TELUS directly affected by the order sought since if the application were granted, the Governor in Council would be directed to review the policy again, which may result in the policy being varied and TELUS losing the rights it now holds. SaskTel, a government-owned telecommunications company offering its services in Saskatchewan that opposes the CRTC's policy, also sought respondent or intervenor status. Despite having been one of the signatories to the petition asking the Governor in Council to vary the CRTC's policy alongside the applicants, SaskTel chose not to join the applicants in bringing the judicial review application. The Court denied SaskTel's motion, reasoning that if the application were successful, SaskTel would not lose rights, no obligations would be imposed upon it, and it would not be prejudicially affected; rather, granting the application would further SaskTel's interests.

The motion to strike and discretionary bars

The Attorney General moved to strike the application on the ground that the applicants have adequate alternative remedies in their appeal to the Federal Court of Appeal and their new petition to the Governor in Council. Justice Grammond granted this motion, emphasizing that judicial review is a discretionary remedy. The Court found that in the complex procedural context of this case, this application for judicial review is not an appropriate remedy. The applicants' appeal to the Federal Court of Appeal and their petition to the Governor in Council could adequately address their substantive concerns, including the ability to argue that the CRTC's analysis of the policy's impacts on competition was flawed and ignored the 2023 policy direction. The Court noted that the reasons for the review and vary decision constitute the CRTC's most current thinking regarding the justification of the impugned policy and supersede the reasons for the initial decision.

Ruling and outcome

The Federal Court granted TELUS's motion to be added as a respondent, dismissed SaskTel's motion to be added as a respondent or intervenor, and granted the Attorney General's motion to strike the notice of application. The applicants were condemned to pay TELUS's costs on its motion to be added as respondent and the Attorney General's costs on the motion to strike. SaskTel was condemned to pay the Attorney General's costs on its motion to be added as respondent or intervenor. No specific monetary amount was determined as this decision addressed procedural motions rather than substantive damages or awards.