Court File and Parties
COURT FILE NO.: CV-23-00704403-00CL DATE: 20230928
ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST
BETWEEN:
ROGERS COMMUNICATIONS CANADA INC. Plaintiff / Moving Party AND TELUS COMMUNICATIONS INC. Defendant / Responding Party
Counsel: Matthew Milne-Smith, Steven G. Frankel and Maura O’Sullivan, for the Applicant Orestes Pasparakis and Stephen Taylor, for the Respondent
HEARD: September 11, 2023
Reasons for Decision
[1] Rogers Communications Canada Inc. (“Rogers”) seeks an interlocutory injunction and corollary relief including a sealing order in respect of certain confidential information.
[2] TELUS Communications Inc. (“TELUS”) opposes the request for injunctive relief. It does not oppose the request for a sealing order.
[3] The nature of the order sought, and whether it is mandatory or prohibitive, is itself an issue on this motion. At its core, the dispute revolves around whether mobile devices of Rogers customers should, when roaming on the TELUS network, display the network identifier (“NID”) “Rogers-EXT”, or whether they should display the network name “TELUS”.
[4] Rogers submits that the injunctive relief sought is prohibitive and is necessary to maintain the status quo pending the outcome of ongoing confidential arbitration proceedings between the parties.
[5] Rogers frames the relief it is seeking in its Notice of Motion this way:
Interlocutory or injunctive relief to assist in the conduct of an arbitration and to preserve the status quo, including by Rogers making payments to TELUS in exchange for the right to display the network identifier “Rogers-EXT” in accordance with past practice, and restraining TELUS from terminating, suspending, ceasing to provide or in any way reducing or diminishing the nature, scope and quality of the wholesale domestic roaming services it is legally required to provide to Rogers, pending the outcome of ongoing, confidential final and binding arbitration between TELUS and Rogers.
[6] TELUS submits that an injunction is unnecessary since, whatever the result of this motion, Rogers customers will continue to be permitted to roam on the TELUS network. It further submits that the nature of the relief sought is mandatory in that it would amount to the imposition of new terms under which TELUS would be required to provide the mandatory ongoing roaming services.
Wireless Services in Canada: Roaming, Conditions of Licence and the 2014 Agreement
[7] Both Rogers and TELUS are leading and well-known Canadian telecommunications companies. Each provides wireless services across the country over a network that it has developed and which it owns. These two parties (TELUS together with Bell Mobility Inc.) offer the only two national wireless networks in Canada. There are other smaller regional networks.
[8] However, neither network covers the entire country. The Rogers network is broader in coverage but does not include certain rural areas where it has no coverage and a few urban centres primarily in Western Canada (such as Vancouver, Edmonton and Calgary) where it has gaps or holes in its coverage (referred to as in-footprint roaming).
[9] The TELUS network is concentrated in Western Canada and portions of Québec, and offers wireless coverage to its customers across other parts of Canada through network sharing arrangements with Bell Mobility and, on a smaller scale, Saskatchewan Telecommunications.
[10] As further described below, customers of each of Rogers and TELUS have the ability to roam on the network of the other such that they can access wireless services across the country. This ability is mandatory, and the reciprocal obligation of these wireless carriers to offer roaming services to their competitors is required by the Government of Canada.
[11] Operation of a wireless network in Canada requires a spectrum licence granted by Innovation, Science and Economic Development Canada (“ISED”, previously “Industry Canada”). ISED, with the objective of promoting the public interest in greater competition in the wireless industry, imposes certain Conditions of Licence pursuant to s. 5(1) of the Radiocommunication Act, R.S.C. 1985, c.R-2.
[12] The Conditions of Licence, first issued in 2008 and revised in 2013, are the basis for the requirement that all Canadian wireless carriers provide wholesale domestic roaming services to any other Canadian wireless carrier upon request, subject only to technical feasibility. The Conditions of Licence require Canadian wireless operators to enter into agreements with one another to provide roaming on request. If the carriers cannot agree to the terms of such roaming agreements, the parties are required to submit disputes to binding arbitration.
[13] Domestic roaming services (i.e., roaming within Canada but outside the host carrier’s network footprint) are distinguished from international roaming which is used when a subscriber travels to another country and typically receives wireless services through one of the domestic carriers in the country where they are travelling.
[14] A NID is displayed, usually in the top left corner of the screen of a wireless device, to inform a subscriber of the network to which their device is connected. By default, a wireless device displays the name broadcasted by that network: i.e., “Rogers” when on the Rogers network, and “TELUS” when on the TELUS network.
[15] The issue at the heart of this motion, however, is what the screen should display when a Rogers subscriber is roaming on the TELUS network, since carriers have the ability to override the default by programming the SIM card of a wireless device to display a different NID. At present, the screen on the wireless device of Rogers subscribers when they are roaming on the TELUS network does not identify TELUS, but rather says “Rogers-EXT” (i.e., extended coverage).
[16] Rogers emphasizes that wireless devices of its subscribers have never displayed the NID “TELUS” when roaming on the TELUS network.
[17] The position of TELUS is that the ability of Rogers to avoid referring to TELUS and instead display the NID “Rogers-EXT” flowed from an agreement which has now expired according to its terms, with the result that Rogers should be required to broadcast the NID “TELUS” on the wireless device screens of its subscribers when they are roaming on the TELUS network.
[18] Rogers and TELUS have a history of reciprocal roaming agreements as contemplated by the ISED Conditions of Licence.
The 2014 Agreement
[19] Rogers has purchased roaming services from TELUS since 2014 (and, in reciprocal fashion, TELUS has purchased roaming services from Rogers, principally in Manitoba), originally pursuant to a domestic roaming agreement dated October 1, 2014 (the “2014 Agreement”) which fixed roaming rates for the years 2014 and 2015. The 2014 Agreement was subsequently amended and extended to December 31, 2017.
[20] The 2014 Agreement does not contain any mandatory requirement compelling Rogers to display the NID “TELUS” when its customers are roaming on that network. It does include a provision (s. 19.5) relating to “Trade Names and Trademarks/Marketing” that prohibits Rogers from referring to TELUS in connection with roaming services.
[21] Rogers and TELUS have been unable to agree on roaming rates and certain other terms since the expiry of the amended 2014 Agreement as of December 31, 2017. As provided in the Conditions of Licence, such disputes have been the subject of arbitration proceedings.
[22] Indeed, the parties have conducted two arbitrations, and a third arbitration is pending.
The 2019 Arbitration
[23] The first arbitration addressed roaming rates and arrangements for the years 2018, 2019 and 2020 but for various reasons was not conducted until 2019 (the “2019 Arbitration”). In his Arbitration Decision released in August of that year, Arbitrator The Hon. Dennis O’Connor fixed the roaming rates (at the rates proposed by Rogers), but in addition determined a dispute between the parties about which NID should be displayed for the period covered by the 2019 Arbitration: 2018 to 2020.
[24] Specifically, Arbitrator O’Connor accepted the position of TELUS and imposed a term of the roaming agreement for the relevant period 2018 to 2020 requiring Rogers to display the NID “TELUS” rather than “Rogers-EXT” on wireless devices of its subscribers when roaming on the TELUS network. No order was made with respect to any period post-December 31, 2020, which was beyond the period that was the subject of the 2019 Arbitration.
The NID Agreement
[25] Following the 2019 Arbitration Decision, in December, 2019, the parties entered into an agreement (the “NID Agreement”) pursuant to which Rogers was permitted to display the NID “Rogers-EXT” on its customers’ devices when roaming on the TELUS network. That right was granted for a period of four years, from August 9, 2019 (a retroactive start date) to August 9, 2023. In exchange, Rogers agreed to pay TELUS a one-time lump sum amount.
[26] Clearly, the term of the NID Agreement extended beyond the term covered by the 2019 Arbitration (as the parties were free to do), and therefore dealt with two different interval periods. The first interval period ran from August 9, 2019 to December 31, 2020, during which period the requirement to display the NID “TELUS” was in effect pursuant to the 2019 Arbitration Decision. The second interval period ran from January 1, 2021 to August 9, 2023, and as such was a contractual arrangement entirely beyond the period of dispute covered by the 2019 Arbitration.
[27] I pause to observe that the parties agree on these key terms of the NID Agreement and in particular the fact that its term expired on August 9, 2023.
The 2023 Arbitration
[28] Rogers and TELUS then conducted a second arbitration since they were again unable to agree on roaming rates and other terms for the period post-December 31, 2020 for the years 2021 and 2022. This second arbitration, conducted by The Hon. Frank Newbould, was also conducted late (i.e., after the commencement of the period to which it applied), and while commenced by Rogers in September, 2021, was not completed until early 2023, resulting in the 2023 Arbitration Decision of May 26, 2023.
[29] Arbitrator Newbould awarded the roaming rates proposed by Rogers. His jurisdiction did not, however, include the ability to make any determination with respect to the issue of which NID should be displayed on devices of Rogers subscribers while roaming on the TELUS network.
[30] Rather, the parties agreed to defer that issue until their next arbitration, which is itself now pending and is anticipated to be conducted over the next several months. That deferral was largely as a result of the NID Agreement which had effect until August 9, 2023 in any event.
[31] I pause again to observe that the parties also agree that the issue of which NID was required to be displayed was not part of the 2023 Arbitration.
The Pending Third Arbitration
[32] The pending (third) arbitration was commenced by Rogers in December, 2022. It will address roaming rates for 2023 and 2024, together with the terms that will govern those roaming arrangements through 2026.
[33] One of those terms that will be determined as part of the third arbitration, and one that is obviously vigourously disputed, is the requirement in respect of which NID should be displayed when a subscriber is roaming on the network of the other carrier. Rogers’ position is that it should be entitled to display the NID “Rogers-EXT”, while the position of TELUS is that Rogers should be required to display the NID “TELUS”.
The Communications of July and August 2023 and This Motion
[34] This motion is before me now as a result of the expiry of the NID Agreement and the positions of the parties as reflected in their email communications of late July and early August, 2023.
[35] The parties disagree on whether the demand of TELUS that Rogers display the NID “TELUS” following on the expiry of the NID Agreement on August 9, 2023 was a sudden threat or had been an issue discussed by the parties over the course of the preceding year during which time the position of TELUS had been consistent. It is therefore important to set out the chronology of relevant correspondence.
[36] In May, 2023, Rogers expanded its network with respect to a rural area between Sooke and Port Renfrew in British Columbia that had previously not been serviced by any carrier. TELUS decided to seek coverage in that area via mandatory roaming, and in July, 2023 wrote to Rogers formally requesting access for roaming services.
[37] On July 5, 2023, TELUS proposed to Rogers a new bilateral roaming agreement which included as a proposed term a NID requirement consistent with the 2019 Arbitration Award that each carrier would display the NID of the other when its customers were roaming on that network.
[38] On July 26, 2023, Rogers responded and among other things proposed the removal of the NID term entirely such that the new bilateral roaming agreement would be silent on the point.
[39] Two days later, on July 28, 2023, in advance of the expiry of the NID Agreement (albeit only shortly before), TELUS wrote to Rogers advising (or, as TELUS submits, “reminding”) Rogers that it would be obliged to display the NID “TELUS” effective upon the expiry of the NID Agreement on August 9, 2023. This TELUS communication was clear that this would be a bilateral obligation, and in reciprocal form TELUS would display the NID “Rogers” on the wireless devices of TELUS subscribers when they roamed on the Rogers network.
[40] On August 3, 2023, Rogers responded and proposed that:
Rogers will maintain the NID arrangement currently in effect pursuant to our agreement dated December 4, 2019. We will continue to display Rogers-EXT on our customers' handsets while they are using the TELUS network. As of August 10, 2023, Rogers will continue to compensate TELUS at the same rate set out in our agreement but on a monthly pro-rated basis. Similarly, we do not expect TELUS to display Rogers' name on handsets of TELUS’ customers when roaming on the Rogers network. Similar to the roaming rates referenced above, should our ongoing negotiations or arbitration result in different terms with respect to the NID, those terms will be applied retroactively.
[41] TELUS replied on August 8, 2023 to advise that:
However, as I explained to you in July, TELUS does not agree to renew or extend Rogers’ current NID-exception arrangement. As you know, Arbitrator O’Connor’s award found that Rogers was required to display the NID as a condition of roaming on TELUS. The December 2019 Network Identifier Agreement, which temporarily relieved Rogers of compliance with this portion of Arbitrator O’Connor’s award, expires on August 9, 2023. Although Rogers has proposed interim payments and a retroactive true-up to align with the results of any arbitral award, there is no way for Rogers to retroactively display the NID in the event that a subsequent award is consistent with the past award on this very issue. As such, Rogers must commence displaying the TELUS network identifier when roaming on TELUS’ network (as TELUS will do when roaming on Rogers’ network) as of August 10, 2023. While TELUS remains ready, willing and able to continue providing Rogers with roaming services pending the 2023-2024 Arbitration, it requires Rogers to comply with its NID obligations if Rogers wishes to receive services from TELUS after August 9, 2023.
[42] Rogers responded the same day to advise that, as a result of the “threat to cut off the ability of Rogers’ customers to roam on the TELUS network if Rogers did not accept TELUS’ demand”, it would seek this injunction.
[43] Rogers’ position on this motion is that the status quo should be maintained and that, as it has done to date, it should be permitted to display the NID “Rogers-EXT”. It puts it this way:
“consistent with industry practice and the parties’ own historical dealings with one another, Rogers intends to display the NID “Rogers-EXT” until the resolution of the [pending third] arbitration, which is the forum in which the parties’ disputes must be adjudicated. Until that time, Rogers is prepared to make monthly payments consistent with the amount it paid under the NID Agreement, even though Rogers is firmly of the view that it should not have to do so.” (Factum, para. 32).
[44] Rogers submits that the NID issue can then be determined in the pending third arbitration and if that arbitrator concludes that Rogers is entitled to display the NID “Rogers-EXT”, TELUS can simply make a retroactive adjusting payment to Rogers.
[45] Rogers submits that TELUS is threatening to upset the status quo and withhold the (mandatory) roaming services to Rogers customers unless Rogers capitulates to its unreasonable demands regarding the NID to be displayed. TELUS submits that it has never threatened to withhold roaming services, which it will continue to provide, and that the status quo is in fact a situation where the temporary suspension of the requirement in the 2019 Arbitration Decision has now expired, and Rogers should display the TELUS NID when its customers are roaming on that network.
Analysis
The Test for Injunctive Relief
[46] The test to be met for injunctive relief, mandatory or prohibitive, is well settled.
[47] A party seeking a prohibitive injunction must show that:
a. there is a serious issue to be tried; b. the moving party will suffer irreparable harm if the injunction is not granted; and c. the balance of convenience (i.e., the assessment as to which of the parties would suffer greater harm from the granting or refusing of the injunction pending a decision on the merits) favours granting the injunction.
See: RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 1994, 117 (SCC), (“RJR-Macdonald”) at p. 334.
[48] The threshold for establishing that there is a serious issue to be tried is a low one. There are no specific requirements which must be met in order to satisfy this test. The court must make a preliminary assessment of the merits of the case, though a prolonged examination of the merits is generally neither necessary nor desirable: RJR-Macdonald, at p. 334.
[49] These three criteria are not watertight compartments. The strength of one may compensate for the weakness of another: Circuit World v. Lesperance, (1997) 33 O.R. (3d) 674 (C.A.).
[50] If the moving party is seeking a mandatory injunction, the first requirement of the test is elevated from demonstrating a serious issue to be tried, to demonstrating a strong prima facie case, or a case that is almost certain to succeed: R. v. Canadian Broadcasting Corp., 2018 SCC 5 at para. 15.
[51] The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific: Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, [2017] 1 S.C.R. 824, at para. 15.
[52] I will address each of the three elements of the test.
Serious Issue to be Tried or Strong Prima Facie Case
[53] On the law, the parties agree. But that is the extent of the agreement. In addition to disputing whether the second and third elements of the test have been met by the moving party, they disagree about whether, in this particular case, the nature of the relief sought is mandatory or prohibitive, and therefore disagree as to whether the threshold that Rogers must meet is that of a serious issue to be tried, or a strong prima facie case.
[54] The nature of the injunctive relief sought by Rogers in its Notice of Motion is set out above at paragraph 5. Rogers submits that an injunction that does nothing more than require the parties to act in accordance with an existing agreement in the circumstances as they exist at the time of the motion is prohibitory in nature, which is precisely the relief it seeks here. Rogers further submits that in any event, both the lower standard for obtaining prohibitory injunctive relief, and the higher standard for obtaining mandatory injunctive relief, are satisfied here.
[55] Rogers frames the question as: “whether TELUS is entitled to terminate unilaterally roaming services it is obligated to provide to Rogers pursuant to the Conditions of Licence”. It submits that the question of whether TELUS can validly require Rogers to display the NID “TELUS” will be resolved as part of the third arbitration.
[56] Rogers submits that its position that TELUS is required to continue to provide roaming services is correct and easily meets the threshold of a serious issue to be tried. This requirement flows, it submits, from: i) the 2023 Arbitration Award of Arbitrator Newbould; ii) the Conditions of Licence; iii) implied terms of the 2014 Agreement; iv) the duty of good faith in contractual performance; and v) TELUS conceding that the legality of such a termination should be adjudicated as part of the third arbitration before the termination is effective, which concession is demonstrated by TELUS’ earlier threats (such as in July 2022) to bring a motion to determine whether it could terminate roaming to Rogers’ customers as it now purports to unilaterally do.
[57] TELUS submits that Rogers asks the wrong question at this first stage of the test and that its request for relief is improperly framed. TELUS has confirmed, and confirmed in submissions to the Court on this motion, that it will provide roaming services so long as Rogers displays the “TELUS” NID and that there is no evidence that Rogers cannot or will not display that NID. It follows, TELUS submits, that the injunction as framed is unnecessary since regardless of the outcome, Rogers customers will continue to be permitted to utilize roaming services on the TELUS network.
[58] The real question, TELUS submits, is whether Rogers can enjoin TELUS from requiring Rogers to display the “TELUS” NID when its customers roam on the TELUS network. When the question is framed that way, TELUS submits that Rogers cannot show a serious issue to be tried (or, as discussed below, satisfy either of the other two elements of the test), given the 2019 Arbitration Decision of Arbitrator O’Connor.
[59] In my view, for the purposes of this motion, the proper question is as framed by TELUS. The issue is not whether roaming services can, let alone should be, terminated. I am satisfied that they cannot be terminated because of the Conditions of Licence requiring reciprocal access to roaming services by each carrier on the network of the other, wholly separate and apart from the 2014 Agreement, the NID Agreement or either of the two arbitrations already completed.
[60] I accept the position of TELUS that it is not threatening to terminate roaming access to Rogers’ customers. If it were, the result might be very different.
[61] I also accept the submission of TELUS that, as a result, the relief sought by Rogers on this motion amounts to a request for a mandatory order compelling the imposition of a new contractual term pending the next arbitration and the resulting agreement.
[62] What is the status quo? The status quo until August 9, 2023 was that Rogers could display the NID “Rogers-Ext”. But that status quo was expressly brought about pursuant to the terms of the NID Agreement that expired on that date.
[63] The parties could have elected not to enter into the NID Agreement at all. However, that was not what in fact occurred. They did reach an agreement, but that agreement is framed by its terms. The bargain, in relevant part, was that Rogers was permitted to display the NID of its choice, for a fixed period of time, for a fixed fee. That fixed period expired on August 9, 2023.
[64] Just as the parties could have elected not to enter into the NID Agreement in the first place, they could have elected to provide for an extension of that NID Agreement, or a new agreement, on the same, similar, or completely different terms, including as to the term of the extension and the price to be paid during that extension period.
[65] In the absence of any such extension or new agreement, however, the status quo as of the date of this motion is that there is no contractual obligation on TELUS to continue to perform the now expired NID Agreement, let alone to do so at the same price that applied (and was paid in lump sum) to the original term. The practical effect of the position advanced by Rogers is to rewrite the NID Agreement so that its term did not expire on August 9, 2023 (contrary to the express terms) but rather, continues until the issue is determined as part of the third arbitration now pending but yet to be scheduled.
[66] The question is, therefore, whether Rogers can demonstrate a prima facie case. In my view, it cannot meet that threshold.
[67] As stated above, Arbitrator O’Connor specifically addressed the issue of which NID was required to be displayed as part of the 2019 Arbitration Decision. He observed that “TELUS considers it important from a competitive standpoint that Rogers subscribers who roam on the TELUS network understand that they are benefiting from TELUS’ infrastructure and investment in its network. He further observed the submission of Rogers that the use of the NID “Rogers-EXT” was “consistent with the parties’ prior practice, and with standard industry practice, among other things (paras. 315 – 318).
[68] Arbitrator O’Connor then determined that Rogers was required to display the NID “TELUS” on its subscribers’ devices when they roam on the TELUS network. In doing so, he rejected arguments of procedural unfairness relevant to that proceeding. He also went on to state:
- Third, as a matter of policy, the CRTC has determined that it is in the interest of subscribers to be informed of the network they are using. In its decision addressing the regulation of roaming rates between incumbents and new entrant/regional carriers, the CRTC addressed the issue of whether a carrier would be permitted to disclose to its subscribers the identity of its roaming provider:
The Commission considers that it is important for current and potential customers of wireless carriers to know on which wireless networks they may roam and that it would be appropriate for wireless carriers to inform their customers about the networks on which they may roam.
Although the CRTC identified this policy goal in the context of an incumbent’s roaming relationship with a new entrant/regional carrier, I am satisfied that the same policy goal would apply to the present case of a roaming relationship between two incumbents. In both cases, the CRTC policy objective of providing Canadian consumers with information about the network they are actually using applies. With that information, Canadian consumers can make informed choices about the incumbent from which they choose to obtain wireless services, including based on the incumbent’s roaming partner.
Fourth, TELUS’ network identifier proposal is based on its reasonable competitive concerns. Under the mandatory roaming regime, TELUS is required to permit Rogers subscribers to roam on its network despite the fact that TELUS has paid to build and maintain the network. In seeking to have Rogers subscribers’ devices display the network identifier “TELUS”, TELUS wants to ensure that the Rogers subscribers who use the TELUS network understand they are benefiting from TELUS’ infrastructure and investment. That seems to me to be a reasonable and logical goal given the competitive dynamic between the two carriers.
Fifth, pursuant to the TELUS proposal, the network identifier on Rogers subscribers’ devices would display information that reflects what is in fact occurring. When Rogers subscribers are using Rogers’ network the network identifier will display “Rogers”, and when they are roaming on TELUS’ network the network identifier will display “TELUS”. If the network identifier were to instead display “Rogers-EXT” when Rogers subscribers are roaming on the TELUS network, Rogers subscribers would not know that they are roaming on the TELUS network. It is difficult to imagine that providing accurate information to consumers can be anything other than a good thing.
Sixth, I do not accept Rogers’ submission that its proposal is consistent with standard industry practice. I recognize that there are various roaming agreements in the industry that use the “[Home Carrier]-EXT” network identifier consistent with Rogers’ proposal.
However, there is also evidence that some carriers follow TELUS’ proposal and display a network identifier containing the name of the visited carrier. For example, in the context of international roaming, it is common practice for the network identifier on a subscriber’s device to be the name of the visited carrier.
Therefore, I find that there is no consensus in the industry regarding the use of the “EXT” network identifier such that I could find it is standard industry practice. To the contrary, carriers use network identifiers that are consistent with both the TELUS proposal and the Rogers proposal. Under these circumstances, I do not find the TELUS proposal to be inconsistent with industry practice or otherwise unusual.
Moreover, there is no evidence that using “TELUS” as a network identifier when Rogers subscribers roam on the TELUS network would cause subscriber confusion. Assuming it did cause confusion, that confusion could be easily clarified.
For the foregoing reasons, I direct that the TELUS proposal regarding the network identifier issue be included in the Proposed Rogers-TELUS Agreement.
[69] Rogers submits, vigourously, that the 2019 Arbitration Award applies only to the period from 2018 to 2020, consistent with the jurisdiction granted to Arbitrator O’Connor in the first place such that it is not binding on the parties today and has no force or effect post December 31, 2020.
[70] I accept this submission. The 2019 Arbitration Decision does not govern the terms of the new agreement that is the subject of the pending third arbitration. As Arbitrator O’Connor himself observed, the parties’ previous practice does not preclude a fresh consideration of the issue of a network identifier in the context of their future relationship.
[71] However, in my view, it does not follow that Arbitrator O’Connor’s findings are irrelevant to the analysis I must now conduct. As is clear from the excerpt above, Rogers submitted in the 2019 Arbitration that it should be permitted to display the NID “Rogers-EXT” because such was “consistent with the parties’ prior practice and standard industry practice”. That is exactly the submission Rogers makes on this motion as set out at paragraph 43 above when it submits that the relief sought is: “consistent with industry practice and the parties’ own historical dealings with one another”.
[72] Arbitrator O’Connor determined that requiring Rogers to display the NID “TELUS” when its subscribers roam.net network was commercially reasonable, was consistent with telecom policy and accorded with industry practice such as he was able to determine what that industry practice was.
[73] TELUS submits that Rogers cannot meet this element of the test because the serious issue to be tried is already res judicata and this motion constitutes an abuse of process by Rogers barred by issue estoppel since it is attempting to relitigate an issue already determined. I agree.
[74] First, issue estoppel applies to decisions rendered in consensual commercial arbitration proceedings, including arbitration decisions interpreting a contract: The Manufacturers Life Insurance Company v. Parc-IX Limited, 2018 ONSC 3625 (“Parc-IX”), quoting with approval from Scotia Realty Ltd. v. Olympia & York SP Corp. (1992), 9 O.R. (3d) 414, 1992 CarswellOnt 470 (Gen. Div.), at para. 20; Enmax Energy Corp. v. TransAlta Generation Partnership, 2015 ABCA 383, [2016] 4 W.W.R. 631, at paras. 35, 40; and Canadian National Railway v. Ramara (Township), 2016 ONSC 7985, 2016 CarswellOnt 20388, at para. 51.
[75] Second, the fact that the ruling of an arbitrator relates to prior period of a lease or term of the contract does not render the doctrine of res judicata inapplicable: see Parc-IX. In my view, here as in that case, the doctrine of issue estoppel continues to bind the parties.
[76] I draw some additional comfort from the fact that Rogers took that very position in its Notice of Arbitration in the 2023 Arbitration, where it submitted in respect of the 2019 Arbitration Decision that: “TELUS [was] precluded from challenging any of Arbitrator O’Connor’s findings and conclusions pursuant to the doctrines of issue estoppel, collateral attack, res judicata, and abuse of process”.
[77] Third, I cannot conclude on the record before me that the industry practice to which Arbitrator O’Connor referred, has changed in any material way.
[78] Finally, Arbitrator O’Connor’s determinations were based not only on industry practice, but also on the telecom policy referred to in the excerpt above, and that continues to apply today as it did then.
[79] To be clear, I make no determination as to whether the new agreement, the terms of which will be fixed as part of the third arbitration, should include any term as to the NID to be displayed on wireless devices of customers of either carrier when they are roaming on the network of the other carrier. That issue is not before the Court and, as Rogers submits, should be left to the arbitrator.
[80] However, in determining for the purposes of whether injunctive relief should be granted in the interim period pending that third arbitration, and even if res judicata and issue estoppel did not apply (as they do), I cannot conclude on the record before me that Rogers has established a prima facie case that the imposition of the NID term it requests is “consistent with industry practice and the parties’ own historical dealings with one another”.
[81] The historical dealings between the parties appear to me to be to the effect that although an earlier arbitration (i.e., the 2019 Arbitration) determined the issue in favour of TELUS, the parties elected (as they were free to do) to contract out of that term and did so for a fixed period of time which has now expired.
[82] As stated above, the issue may be determined in the third arbitration the opposite way and entirely in favour of Rogers. But today, and in the interim period while that third arbitration is pending, new or extended contractual terms should not be imposed.
[83] It follows, in my view, that Rogers cannot make out a prima facie case of breach of contract or of a breach of the duty of good faith in that contract. The fundamental problem is that there is not any contract yet for the period during which injunctive relief is sought, since the NID Agreement has expired.
[84] To the extent that the breach of contract claim is made in respect of alleged breaches of the 2014 Agreement and in particular implied terms that TELUS would comply with its legal obligations under the mandatory roaming regime and that TELUS would not terminate roaming in circumstances where the parties are engaged in negotiations or arbitration concerning the terms of a replacement roaming agreement, TELUS has been clear, as stated above, that it will not terminate roaming services. It follows that even if the 2014 Agreement were found to include those implied terms, there is no prima facie case that they have been breached.
[85] The same consideration applies to the alleged breach of TELUS’ duty of good faith in contractual performance.
[86] This is sufficient to dispose of the motion. In case I am wrong with respect to this first element, however, I have considered the remaining two elements of the test.
Irreparable Harm
[87] A significant component of the submissions advanced by Rogers with respect to whether it will suffer irreparable harm if injunctive relief is not granted, is directed towards the harm that would be suffered if its customers are not permitted to continue to roam on the TELUS network.
[88] Given my findings above, and the clear and unequivocal agreement of TELUS that Rogers’ customers will in fact continue to roam on the TELUS network, such harm will in fact not be suffered.
[89] Does the fact that Rogers customers who are roaming on the TELUS network will see on their mobile devices the NID “TELUS” rather than “Rogers-EXT”, at least until a decision is rendered in the third arbitration, constitute irreparable harm (i.e., harm that cannot be quantified or compensated in damages)? In my view, it does not.
[90] The evidence of Rogers is to the effect that its customers will be confused and will not understand why their mobile devices will “abruptly and occasionally display the NID “TELUS”, or “worse, they may think that they are being charged by TELUS rather than Rogers …”. Customer confusion of this nature will be harmful to Rogers’ reputation and is likely to drive “churn” (i.e., migration of customers from one carrier to another).
[91] I do not accept that these concerns constitute irreparable harm, largely for the reasons of Arbitrator O’Connor set out above. In my view, if there were customer confusion, which I am not satisfied has been established, I am of the view that it could be clarified, and clarified in a manner that would not constitute a breach of the 2014 Agreement and particularly s. 19.5 referred to above. Moreover, counsel for TELUS confirmed in submissions on this motion that such clarification would not amount to a breach of that provision, which was directed towards trademark and marketing concerns.
[92] If, notwithstanding such clarification as the parties may consider necessary and appropriate, customers were confused and mistakenly thought that they were incurring extra charges, that confusion could easily be cleared up, if the situation was not obvious to customers at least upon receipt of their next invoice in any event.
[93] Even if there were “churn” or the loss of customers, (and I am not satisfied on the basis of the evidence that there would be), I would not be satisfied that such harm is irreparable. The dates on which customers migrated to a competitor carrier would be known, and the lost revenue could be quantified.
[94] Finally, and for the above reasons, the harm, even if it were to occur, is not unavoidable. Rogers can display the NID “TELUS” when its customers are roaming on that network, as it was previously directed to do by the 2019 Arbitration Decision. While it contracted out of that term for a period of time, I am not satisfied on the basis of the record before me that had it not contracted out of the obligation, it could not then (or now) display the NID as directed.
Balance of Convenience
[95] In my view, the balance of convenience in the circumstances favours TELUS. As stated above, the default NID is the display of the network on which the customer is actually roaming at the time. While the default can be overridden by a reprogramming of the SIM card, it remains the default.
[96] The balance of what in my view is the display of a NID that reflects what is in fact occurring (i.e., correctly identifies the network on which the customer is then roaming), as against the desire of Rogers to not display the name of a competitor, favours in this intervening period pending the third arbitration the display of the correct NID.
[97] I accept that the telecommunications and particularly the wireless telecommunications market in Canada is highly competitive, and the competitive concerns of each participant are real. However, I also accept the CRTC policy objectives, as summarized by Arbitrator O’Connor, of providing wireless customers with accurate information about the network on which they are in fact roaming. The balance favours the latter over the former, to the extent that each is affected by the relief sought on this motion.
[98] Moreover, the obligation is reciprocal and works both ways: to state the obvious, the NID “Rogers” should be displayed on the mobile devices of TELUS customers when they are roaming on the Rogers network, just as the reverse is true.
[99] Finally, in my view the balance of convenience favours maintaining the contractual rights of the parties as they exist today: the term of the NID Agreement has expired. This is particularly so given the highly regulated, competitive and technical marketplace within which these two parties operate. In my view, in determining a balance of convenience, the Court should be cautious in interfering in such a market.
Undertaking as to Damages
[100] Rogers has provided an undertaking as to damages, but that undertaking is limited to an undertaking to pay the monthly equivalent of the amount it agreed to pay in the NID Agreement. It submits that “TELUS has placed a price on the cost to TELUS of Rogers being permitted to display the NID “Rogers-EXT”. Rogers submits that given that this is the value of the NID as already agreed upon by the parties, no further or broader undertaking as to damages should be required.
[101] I accept the position of TELUS that the undertaking, as framed, would not be sufficient in the event that I had otherwise determined that injunctive relief should be granted. Absent special circumstances, within which the Court has discretion to relieve the plaintiff from giving an undertaking as to damages (which I find are not present here), the undertaking is required.
[102] I am not satisfied that the damages TELUS might establish that it had suffered would be limited to the contractual amount to which the parties agreed in the NID Agreement, prorated for the period during which the injunction was in effect. Again, such a conclusion amounts in practical terms to an an extension of the NID Agreement at the same price as was previously agreed, and I decline to accept that in the circumstances.
Request for a Sealing Order
[103] Rogers seeks a sealing order over certain confidential materials. Shortly after the hearing of this motion, counsel advised the Court that the parties had collaboratively prepared a list of all confidential materials in respect of which TELUS does not oppose such an order.
[104] To assist the Court, the parties have reformatted the relevant portions of the motion materials to identify those redacted excerpts that they submit should remain confidential, and to facilitate the filing of public versions of the relevant records.
[105] Subsection 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.42, provides for the Court’s authority to grant a sealing order. It provides that the Court may order that any document filed in a civil proceeding be treated as confidential, sealed and not part of the public record.
[106] The Supreme Court of Canada in Sherman Estate v Donovan, 2021 SCC 25, at para. 38, recast the test from Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41:
The test for discretionary limits on presumptive court openness has been expressed as a two-step inquiry involving the necessity and proportionality of the proposed order (Sierra Club, at para. 53). Upon examination, however, this test rests upon three core principles that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle. In order to succeed, the person asking the court to exercise discretion in a way that limits the open court presumption must establish that:
a) court openness poses a serious risk to an important public interest; b) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and c) as a matter of proportionality, the benefits of the order outweigh its negative effects.
Only where all of these prerequisites have been met can a discretionary limit on openness - for example, a sealing order, a publication ban, an order excluding the public from the hearing, or a redaction order - properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188 at paras. 7 and 22).
[107] Under the first branch of the three-part test, an “important commercial interest” is one that can be expressed in terms of the public interest in confidentiality. The Supreme Court was clear that the interest in question cannot merely be specific to the party requesting the order and must be one which can be expressed in terms of a public interest in confidentiality.
[108] Here, as in Sierra Club, both Rogers and TELUS are parties to roaming agreements with other wireless carriers, domestically and internationally. Those agreements are confidential to both the parties to this action, and to the third party counterparties to those agreements. The agreements themselves include strict confidentiality provisions.
[109] Rogers submits, and TELUS does not oppose the submission, that the exposure of the information sought to be sealed would cause a breach of those confidentiality provisions in the roaming agreements such that the commercial interest affected can be characterized more broadly as the general commercial interest of preserving confidential information as well as maintaining the sanctity of contract.
[110] The Supreme Court recognized the potential need for a sealing order where the parties have agreed to a confidentiality provision (see Bombardier Inc. v. Union Carbide Canada Inc., 2014 SCC 35 at para. 49).
[111] Further, in Sierra Club (at paras. 59-60), the Supreme Court recognized that the preservation of confidential information constitutes a sufficiently important commercial interest to pass the first branch of the test, provided however that certain criteria were met. The applicant must demonstrate that the information question has been treated at all relevant times as confidential and that on a balance of probabilities its proprietary, commercial and scientific interest could reasonably be harmed by the disclosure of the information. The information must be of a “confidential nature” in that it has been “accumulated with a reasonable expectation of it being kept confidential” as opposed to “facts which a litigant would like to keep confidential by having the court room doors closed”.
[112] Moreover, the Conditions of Licence imposed by ISED require, as stated above, that parties who cannot agree upon the terms of agreements for mandatory roaming submit their disputes to the mandatory arbitration procedures. Those arbitration procedures themselves are strictly private and highly confidential. This is reflected, in part, in ISED’s Arbitration Rules and Procedures and in particular Rule 6. These ISED Rules are imposed in the public interest.
[113] Accordingly, I am satisfied that the first branch of the test is met here, in that there is an important public interest present to which court openness (in the form of the refusal to grant a sealing order) poses a serious risk. If a sealing order is not granted, there will be a serious risk to an important public interest of preserving, to the extent necessary, contractual and ISED-imposed obligations of confidentiality. (See Bombardier, at paras. 3, 29 and 51). The parties have, throughout, treated the information as confidential and I am satisfied that the commercial interests of both parties as well as non-parties (such as counterparties to roaming agreements) could reasonably be harmed by the disclosure of the information.
[114] I am also satisfied that the second requirement of the test is met since the order sought is necessary to prevent the risks identified above as an important public interest because reasonably alternative measures will not prevent the risk.
[115] The third requirement is also met. While certain information would be kept confidential, the balance of the materials on the motion would not be sealed, and available to the public. The gist of the issues would remain available to the public. On balance, I am satisfied that the benefits of the requested order outweigh its negative effects. The number of documents and the components of information over which confidentiality is sought to be maintained are discrete, proportional and limited.
[116] The parties are directed to file with the Court through the Commercial List Office the Record, organized as proposed by the parties such that the public portion of the record is segregated from the confidential portion of the record. The latter shall be filed, in physical copy only, with the Commercial List Office in a sealed envelope clearly marked: “Confidential and not to form part of the public record - subject to Court Order”.
[117] The sealing order shall have effect until further order of this Court.
Disposition and Result
[118] The motion for injunctive relief is dismissed. The motion for a sealing order, which is unopposed, is granted.
[119] The parties were not in a position at the conclusion of the hearing in this matter to address costs. The parties are strongly encouraged to agree on costs. If they are unable to do so, TELUS shall file written submissions on costs, not to exceed three pages in length, together with a bill of costs, within 10 days. Rogers shall file written submissions on costs, also not to exceed three pages in length, within 10 days thereafter.
[120] Order to go in accordance with these reasons.