North American Gateway Inc. v. Canada ( Radio-television and Telecommunications Commission )
97-A-47
McDonald J.A.
26/5/97
8 pp.
Application for stay of Decision 97-10 of Canadian Radio-television and Telecommunications Commission (CRTC), and of CRTC's interlocutory decision-CRTC's decision contentious as relating to prohibition of switched hubbing for long distance overseas phone calls-Teleglobe Canada currently having de facto monopoly as facilities-based provider of overseas telecommunications-Applicant North American Gateway Inc. (NAG) also providing international telephone service-Decision 97-10 making it explicit switched hubbing not permitted without Teleglobe's consent-On application for stay, Court must apply tripartite test laid out by S.C.C.: serious issue to be tried, irreparable harm, balance of convenience favouring applicant-Threshold of "serious issue to be tried" low one-Since decisions of S.C.C. in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 and RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, threshold much lower: applicant need only satisfy Court matter on appeal neither frivolous nor vexatious-Lower threshold most often applied in Charter cases, where fundamental issues of public policy at stake-Same low threshold applied by Court in non-Charter cases-Where Court asked to review decision of party vested with public interest like CRTC, lower standard of "frivolous or vexatious" should apply-Low threshold met by applicant-Higher standard than that of "neither frivolous nor vexatious" also met by applicant-Issues raised by applicant presenting at least one if not several serious issues to be tried-Applicant will suffer irreparable harm if stay not granted-NAG could be out of business within days as major customers seek to comply with Decision 97-10-Harm to NAG virtually incapable of being compensated via later award of damages-No entity liable to compensate for damages-No evidence before Court as to how Teleglobe would be harmed by granting of stay-Teleglobe Canada enjoying healthy profits during period NAG engaged in switched hubbing-Balance of convenience in favour of applicant-That applicant could be put out of business heavy burden for those adverse in interest to outweigh-Application allowed-Tracking provisions put in place by CRTC's interim ruling of August 13, 1996 to be continued-Accounting provisions to be continued as well pending disposition of application for leave to appeal filed with Court.