Supreme Court to say Thursday if Wind Mobile case goes ahead

Howard Solomon

13 years ago

It’s been just over two and a half years since the Harper cabinet overturned a decision by the CRTC, the federal telecommunications regulator, and issued an operating licence to the parent of Wind Mobile.Since then competitor Public Mobile has been trying to get the courts to recognize that was an unfair decision to other carriers.

On Thursday it will find out if Canada’s top court will take the case. The Supreme Court of Canada said this afternoon that’s when it will announce if it will give Public Mobile leave to appeal the case, which centres on the powers of the federal cabinet.

The startup, which operates a network in Toronto and Montreal, wants the courts to say the benefit Wind got from the cabinet should be available to all wireless carriers. In the first round, a Federal Court judge ruled in Public Mobile’s favour in February, 2011 and quashed the cabinet’s decision. But four months later the Federal Court of Appeal overturned that decision.

The fight started in the fall of 2009 when the Canadian Radio-television and Telecommunications Commission (CRTC) said Wind's parent, Globalive Wireless Management Corp., hadn't proved that it wasn't controlled by its financier, Egyptian-based Orascom Telecom.

Under the Telecommunications Act, foreign companies can directly and indirectly hold up to 46 per cent of a telecom carrier. But the act also says the carrier has to show it isn’t controlled by outsiders. In Globalive’s case, the CRTC said the fact that Orascom provided almost all of Wind’s financing, plus its brand name, gave it too much clout.

But prodded by then-Industry Minister Tony Clement – whose department had already approved Globalive’s carrier licence – the cabinet said that because daily control of Wind would be in the hands of Canadians it met the conditions of the law.

Orascom has since been bought by Amsterdam-based VimpelCom Ltd.