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Transaction/Case Details

The Supreme Court of Canada dismisses Public Mobile's application for leave to appeal

DATE CLOSED

April 26, 2012

BUSINESS SECTOR

Communications

LEAD OFFICE

Toronto


OVERVIEW

On April 26, 2012, the Supreme Court of Canada (SCC) declined to hear a challenge to a Government of Canada decision that Globalive Wireless is entitled to offer wireless services in Canada.

The SCC’s denial of leave to appeal was welcomed by Globalive, which has been operating during the related litigation since 2008 when, as a new entrant into the market, it participated in Canada's wireless spectrum auction and was issued spectrum licences by the Minister of Industry. Then, in October 2009 the Canadian Radio-television and Telecommunications Commission (CRTC), Canada's telecommunications regulator, held that because of the debt advanced to Globalive by Egypt's Orascom Telecom Holding SAE, Globalive did not meet the foreign ownership and control rules, and was therefore ineligible to operate as a telecommunication carrier. On its own motion, the Governor in Council undertook a review of the CRTC's decision. In December 2009, the federal government over-ruled the CRTC, concluding that Globalive did meet the Canadian ownership and control test.

In February 2011, the Federal Court set aside the government's decision, holding that the Government had acted improperly in considering the encouragement of access to foreign capital in the course of its decision. In June 2011, the Federal Court of Appeal overturned that decision. The Federal Court of Appeal stated that in its decision of December 2009, the Government had made no error of law or jurisdiction in finding that Globalive met the Canadian ownership and control test and was entitled to have regard to policy considerations in deciding to vary the CRTC decision.

In Public Mobile Inc. v. Canada (Attorney General), 2012 SCC DOC. 34418, the Supreme Court of Canada has put the dispute to rest and permitted Globalive to continue to operate as a Canadian telecommunications carrier.

McCarthy Tétrault LLP represented Globalive Wireless Management, with a team led by Thomas Heintzman.

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