Procedural Advice for Regulators: Teksavvy Solutions Inc. v. Bell Canada, 2024 FCA 121 and Neustaedter v Alberta (Labour Relations Board), 2024 ABCA 238
In this post I highlight two recent appellate decisions on evergreen topics for economic regulators: meetings with regulated entities and the right to counsel (or the absence thereof) in regulatory investigations.
Meetings with Regulators
Teksavvy Solutions Inc. v. Bell Canada, 2024 FCA 121 concerned an appeal from a rate-setting decision by the CRTC relating to the rates payable to owners of telecommunications infrastructure. Here, B is an owner and T wishes to access its infrastructure. In T’s view, the CRTC set the rates too high. One issue that arose related to bias. T alleged bias on two grounds.
First, the Chair of the CRTC had made public comments about the importance of facilities-based competition. There was, Stratas JA held, nothing objectionable about this:
The Chair was doing nothing more than setting out the longstanding and frequently expressed policy position of the CRTC in general terms. As the Chair of a high-profile regulatory body, it was appropriate for him to communicate the policies of the regulator, as had been adopted in CRTC decisions and notices. Such communication can be constructive and in the public interest: Zündel v. Canada (Attorney General), 1999 CanLII 9357 (FC), [1999] 4 F.C. 289, 175 D.L.R. (4th) 512 (T.D.) at paras. 28-30, aff’d (2000), 2000 CanLII 16731 (FCA), 195 D.L.R. (4th) 394, 30 Admin. L.R. (3d) 82 (C.A.) at para. 3. By no means was the Chair expressing a preference for the specific positions taken by parties in a specific file before the CRTC, nor was he communicating a permanent, irrevocable policy preference (at para. 52).
Second, during the decision-making process, the Chair had held a meeting with a senior Bell representative. Stratas JA held that T had not raised this bias objection in a timely manner and was thus precluding from pursuing it (at paras. 57-58). Nonetheless, he appreciated that the meeting was potentially problematic and offered the following observations:
Meetings between regulators and regulatees outside of the hearing room are a tricky area.
At one end of the spectrum are meetings that are in the public interest, particularly where the regulator has a policy-making mandate and the regulator and the regulatee are in a long term relationship. Regulators need to understand the industry they regulate and the parties in it, their challenges, needs, aspirations, and plans. And regulatees need to understand the motivations of regulators, their view of the public interest and their need to protect it. It is evident from the register maintained under the Lobbying Act, most regulatees in sectors such as this engage in these meetings. It is accepted that they are part of doing business. For good measure, the preamble to the Lobbying Act has declared lobbying to be a “legitimate activity”. And the CRTC’s Code of Conduct correctly recognizes that “[f]ormal and informal contacts with parties with an interest in the communications industry are essential to maintaining and enhancing our expertise and knowledge”.
At the other end of the spectrum are meetings to discuss live issues coming before the regulator or already before the regulator for hearing and decision. In effect, these meetings are means by which secret submissions can be offered outside of the hearing room, away from the eyes and ears of other parties to the hearing and the public. This subverts fairness and should not happen.
Somewhere in the middle are social gatherings. The CRTC’s Code of Conduct permits attendance at social events and other meetings between CRTC members and industry representatives as long as CRTC members do not discuss matters before the CRTC during the events. But this can still invite unwelcome questions that can multiply, with mounting risk.
Looking at this case as an example, why were the two together? What was discussed? Why were just the two of them there without any witnesses? Quite simply, meetings between two people, one a regulator and one a regulatee, without any independent witnesses or other evidence to substantiate why the meeting happened and what was discussed can be a recipe for trouble.
In the evidentiary record before us is a CRTC policy that offers good practical guidance on this issue. It recognizes the benefits of regulator-regulatee meetings. But it also flags the risks and offers some ways the risks can be mitigated. For example, among other things, the policy suggests that a senior Commission staff person be present at such meetings. It also suggests that the purposes of the meeting be confirmed in writing (at paras. 65-70).
This is excellent advice, with the helpful notion of a spectrum between the general and specific particularly useful for regulators seeking to strike a balance between public engagement and impartiality.
Counsel in Regulatory Investigations
In Neustaedter v Alberta (Labour Relations Board), 2024 ABCA 238, the issue was the ability of a regulated entity to insist on the presence of counsel during a regulatory investigation. Generally speaking, regulatory statutes provide for wide investigative powers in respect of regulated activities (here, occupational health and safety), including the ability to enter on premises and interview staff.
Here, the regulatee objected to interviews with staff being conducted in the absence of counsel. This objection was rejected by the occupational health and safety officer assigned to the matter and by the Board. The Court of Appeal was of the same view:
[T]he appellants argue, on a proper interpretation, OHS officers did not have authority to compel interviews. The OHS officer came to a different conclusion. He noted section 51(j) of the OHSA expressly gave officers the authority to interview and obtain statements for the purposes of the Act (“For the purposes of this Act, an officer may… interview and obtain statements…”), section 53(2) mandated that witnesses comply with an OHS officer’s request for information (“shall, on the request of an officer, provide to the officer any information respecting the injury or incident that the officer requests”), and section 54 required witnesses to cooperate (“No person shall interfere with or in any manner hinder an occupational health and safety officer… who is exercising powers or performing duties or functions under this Act.”). He also noted, with reference to Ebsworth, that OHS had the authority to determine its own procedure as necessary to carry out its legislated function. He concluded from the foregoing that the OHSA gave “an OHS Officer the power to compel a witness to attend an interview for the purpose of requesting information pursuant to section 53(2)”. The ALRB characterized the officer’s reasoning in this regard as “coherent, rational and justified”: ALRB Decision at para 54. We agree.
Before the chambers judge, the appellant advanced a variation of this argument by submitting OHS officers have no authority to compel a person to provide information. At paragraph 105 of the Substantive Decision, the chambers judge held the appellant’s interpretation “would render the OHSAessentially toothless. If a request for information regarding a workplace incident can be ignored with impunity, OHS’s mandate to protect worker safety would be rendered nugatory. This cannot have been the Legislature’s intention.” We agree and extend this reasoning to the argument before us (at paras. 16-17).
The appellant had raised the Charter in support of the argument that interviews could not be conducted in the absence of counsel but this was to no avail. The Charter simply does not apply with significant force in respect of regulated activities (see e.g. here).
This content has been updated on August 21, 2024 at 15:22.