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Report On Business Ontario commissioner extends legal battle with CRTC chairman

CTRC Chairman Jean-Pierre Blais speaks to media at the CRTC offices in Gatineau, Que., on Thursday, March 19, 2015.

Sean Kilpatrick/THE CANADIAN PRESS

Tensions between Jean-Pierre Blais, the chairman of Canada's broadcast and telecom regulator, and Ontario commissioner Raj Shoan have now boiled over into a third court case in just over a year.

In the latest case, a request for judicial review filed with the Federal Court of Appeal on May 4, Mr. Shoan objected to the chairman's decision to name a panel of commissioners to preside over a public hearing that was only announced this week.

The Canadian Radio-television and Telecommunications Commission (CRTC) said on Wednesday that it will hold a public inquiry in the fall into the practice of "zero-rating," which is when Internet or wireless providers exempt certain services (such as streaming music applications like Spotify) from data charges.

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The public hearing is expected to bring some certainty to the validity of the practice, which proponents of Net neutrality say violates the principle that all content that flows through networks should be treated equally.

Mr. Shoan filed his court application along with an affidavit setting out his concerns that Mr. Blais does not have the authority to appoint panels and that all commissioners must be given the opportunity to vote on telecommunications matters.

He says in the application that Mr. Blais sent an e-mail on April 12 outlining his decision to appoint a panel of five commissioners to deal with the public hearing. There are eight current commissioners (including Mr. Blais). Mr. Shoan was not named to the panel.

After Mr. Shoan filed his materials, lawyers for the federal government, representing the CRTC, raised concerns about the materials being on the public record before the commission had officially announced its plans to hold the hearing.

He agreed to ask the court to withhold them from the public record until the hearing was announced and the registrar of the Federal Court of Appeal issued a direction to keep the materials confidential on May 9.

Following the public announcement of the hearing this week, the parties agreed that the materials no longer needed to be withheld from the public record.

Mr. Shoan said Friday that he filed his application before the hearing was announced because he was objecting to Mr. Blais's decision of April 12 and the law requires a judicial review to be filed within 30 days of a decision.

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"I don't believe the Telecommunications Act gives the Chairperson the legal authority to name panels to decide on telecommunications matters. My reading of the Act is that all decisions are to be made by the full commission itself," Mr. Shoan said. "It's not something I relish doing but I do feel that I have a legal and ethical duty to preserve the integrity of the CRTC's decision-making structure."

Patricia Valladao, spokeswoman for the CRTC, disagreed.

"The A‎G [attorney general] and the commission are firmly of the view that the position of Commissioner Shoan is entirely without merit. Commission chairs have been naming panels for decades," she said Friday.

The two men have been at odds almost since the time Mr. Shoan was appointed to the CRTC in 2013.

Mr. Shoan has consistently objected to what he has characterized as Mr. Blais overstepping his legal authority as chairman of the commission.

In a case filed with the Federal Court in April, 2015, Mr. Shoan first sought a judicial review of Mr. Blais's acceptance of the findings of a third-party investigation that found Mr. Shoan had harassed a CRTC employee over e-mail. The court is expected to hear that case in Toronto on June 21.

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Mr. Shoan then filed a second legal case with the Federal Court of Appeal in October, which was the first time he raised the issue of Mr. Blais lacking the authority to appoint panels on telecommunications matters. A hearing date has not been set in that matter.

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