I Participated in a CRTC Proceeding and Now I'm in Court. What do I do.

I participated in a CRTC proceeding and now I'm in Court. What do I do?

As Internet access becomes ever more critical to our daily lives, decisions made by the Canadian Radio-television and Telecommunications Commission (CRTC) – our telecommunications regulator – can have increasingly wide ranging impact on our lives.

It is not surprising that public participation in CRTC proceedings is common, and it is important for the CRTC to hear how the issues it must decide might impact the general public.

The CRTC’s procedure is generally structured to make public participation in ongoing proceedings relatively easy, and it can be as simple as filling out a form on the CRTC’s website indicating one’s views or concerns relating to a particular proceeding. But CRTC decisions are subject to review by the courts and in the past this has been a cause of concern for individual participants in CRTC proceedings who find themselves potentially embroiled in more formal and complex judicial processes on appeal.

If you are an individual who provided input into a CRTC telecommunications proceeding and suddenly find yourself in court–don’t worry. Generally speaking, you can ignore the court process and there will be no direct consequences to you, as we explain in more detail below. (Note that if you initiated a complaint or proceeding at the CRTC,or if you have a direct personal interest in the outcome of the proceeding, the implications in terms of legal costs might be different for you).

I received court documents in my email inbox. Am I being Sued?

No, you are not. CRTC decisions are often appealed to the Courts, most frequently by industry participants such as Bell, Rogers and TELUS. This appeal process is typically initiated with a legal document called a Notice of Appeal that must be filed with the Court (usually this will be the Federal Court of Appeal and, sometimes, the Supreme Court of Canada).

When this happens, rules of court require the person initiating the appeal to include everyone who participated in the CRTC proceeding as a party to the appeal. This is typically achieved by serving the Notice of Appeal and other relevant court documents on anyone who participated in the CRTC proceeding being appealed. In the past, this has been a cause of concern for individuals who receive these formal legal documents in their inboxes.

The rationale behind the obligation to include and serve legal documents on all participants is to ensure that anyone who participated in a proceeding is aware that the CRTC’s decision is being appealed and has an opportunity to participate in that appeal.

You have no obligation to participate in the appeal, these documents are sent to you for your own benefit so that you are aware you have the option of participating.

I have no interest in participating in this Appeal. What do I do?

You do nothing.

The rules of court require that you be provided with some of the core documents that establish the appeal and set out its parameters. If you want to actively participate in the appeal, you must fill out a document called a Notice of Appearance and file it with the Court. If you do not file this document with the Court, it’s an indication that you have no intention in actively participating in the appeal and, in due time, you should stop receiving court documents from those parties who do continue to actively participate.

I’m worried I may need to pay someone’s legal costs.

You should not worry.

In our legal system, the general principle is that if someone succeeds in a legal proceeding, the losing party must pay part of their legal costs. It is not uncommon, then, for court documents to include broadly framed claims for recovering their legal costs and you may see a claim like this in the legal documents you receive here. And it is true that if someone chooses to actively oppose an appeal of a CRTC decision, for example, the court may order them to pay part of a winning appellant’s legal costs.

If you do not actively participate in the appeal, generally speaking, you won’t be included in any award of legal costs eventually issued by the Court.

Historically, successful parties have not tried to recover their legal costs from individuals who did not actively participate in an appeal. This is for both practical and legal reasons. Practically, it’s not very efficient or feasible to divide one’s legal costs among the hundreds (and often even thousands) of individuals who participated in a CRTC proceeding. Legally, courts have recognized the importance of ensuring that legal cost recovery rules encourage public participation at the CRTC and allowing legal costs against individuals who have done nothing more than participate in a CRTC proceeding would greatly undermine that principle. This is particularly so if you did not actively participate in the appeal itself.

If, despite this, a winning party in a CRTC court appeal attempts to recover its legal costs from you after the appeal is over, you should seek legal advice. Contact us as well and we can try to help. But, despite numerous appeals of CRTC decisions over the years, this has not happened in the past.

I did nothing. Why do I keep getting all of these documents in my email?

Even if you followed Step 2, above, and did not file a Notice of Appearance, you may still continue to get a lot of court documents and other emails in your inbox.

This could be for a number of reasons. First, the Court process continues to require service of some documents to you even if you’re not actively participating in a proceeding.

Second, sometimes those who are actively participating in an appeal will continue to send documents to everyone who was included in the initial email. This can be out of an over abundance of caution or out of lack of familiarity with the court process.

Often, if this continues for some time, the Court may itself issue an instruction to parties to clarify that they no longer need to send all documents to every single person in the initial email list. Courts who are more familiar with CRTC appeals can proactively emphasize and clarify this when approving the service process for the appeal by indicating certain types of participants will not need to receive any documents after a certain stage in the proceeding.

It can be frustrating to receive all these documents in your inbox, particularly if you’re using a personal email account. The best thing to do though is to be patient. Keep in mind that there will often be hundreds or even thousands of individuals who are also receiving these emails. If every one of them begins replying to the email thread whenever a document is sent, it will only serve to clog up everyone’s inboxes even more. The court itself is prevented by its rules from responding to such emails directly.

I want to participate in a CRTC proceeding, but don’t want to get caught up in future legal proceedings. Can I do anything?

Unfortunately, the CRTC does not currently have an easy and consistent process for individuals to voice their concerns to the Commission without fully joining the proceeding. It is not within the CRTC’s power to prevent you from being notified if any resulting decisions are later appealed.

In some proceedings, there will be other opportunities for individuals to voice their views without fully joining. Often, public interest organizations will collect comments on behalf of individuals and submit these to the CRTC. OpenMedia frequently provides opportunities for this type of input (for an example, see this blog post). Sometimes the CRTC itself will issue an online survey seeking input from the public on issues arising from the proceeding and anyone can answer these.

These forms of participation are far more limited – you won’t be able to participate in any CRTC hearing that might be held, or to send additional comments later on in the proceeding if you have additional thoughts. But they do allow you to voice your concerns in a way that insulates you from later appeals.

If you do choose to participate directly in a CRTC proceeding, it is a good idea to set up and use a separate email address so that you can keep your personal email address both private and clear of legal documents and other proceeding related emails.

What if I do want to actively participate in an appeal?

If you do want to actively participate in an appeal of a CRTC decision, you have the right to do so. If you choose to do this, though, it’s a good idea to get a lawyer to help.

While efforts have been made to make the court’s process accessible to self-represented individuals, the rules of court can be complicated and difficult to navigate.

Also, as noted above, actively participating in an appeal can put you at greater risk of a claim for legal costs. As a public interest public participant in a CRTC proceeding, you should still be insulated to some degree from legal costs, particularly if you have no personal direct stake in the outcome of the proceeding. But active participation in an appeal can increase the chance that the court will order you to contribute to a winning party’s legal costs. This is another reason to get a lawyer to help you with your participation.

December 9, 2021
Tamir Israel, Staff Lawyer, CIPPIC