In this case, the Federal Court of Appeal considered the scope of the Governor in Council's (GIC) jurisdiction in the context of reviewing decisions of the Canadian Radio-television and Telecommunications Commission (CRTC). In obiter dicta, Sexton J.A. wrote that policy considerations may inform the Governor in Council's application of the control in fact test pursuant to s. 16(3) of the Telecommunications Act, S.C. 1993, chapter 38. He assumed, without deciding, that the standard of review on this issue would be correctness, but found that the decision under review did not incorporate policy considerations until the question of control had already been resolved.
The initial CRTC decision applied the Canadian Airlines test and concluded that the appellant Globalive was controlled by a non-Canadian and therefore ineligible to operate as a telecommunications common carrier in Canada. The GIC applied the same test in reviewing that decision, but disagreed that the appellant Globalive was controlled by a non-Canadian.
Justice Sexton held that the GIC decision was reasonable and did not incorporate policy aspects until it considered whether or not to vary the decision of the CRTC. However, Justice Sexton added that even if the GIC had considered appropriate policy concerns when applying the control in fact test, it would not constitute a reviewable error. He noted that rather than giving courts the exclusive right to review CRTC decisions, "the fact Parliament chose to grant the Governor in ouncil the right to review the CRTC’s application of the control in fact test implies the decision was intended to incorporate policy concerns when appropriate." Justice Sexton therefore found that even if the GIC had incorporated policy considerations into its decision, it would have been not only reasonable, but correct to do so.
June 8, 2011
Link to Decision
Marc Gibson
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