The dispute concerns the display 'Rogers-EXT' when roaming on the TELUS network
The Ontario Superior Court of Justice has declined Rogers Communications Canada Inc.'s motion for injunctive relief to preserve the status quo pending the result of ongoing arbitration with TELUS Communications Inc.
Rogers and TELUS, two prominent Canadian telecommunications companies, were embroiled in a dispute over the display of the network identifier (NID) on mobile devices when roaming on each other's networks.
Rogers sought an interlocutory injunction to maintain the status quo, arguing that it is necessary to preserve the current practice pending the outcome of confidential arbitration proceedings between the two companies. The core of the dispute lies in whether Rogers customers should, when roaming on the TELUS network, display the NID "Rogers-EXT" or whether they should display the network name "TELUS."
TELUS opposed the request for injunctive relief, arguing that an injunction is unnecessary, as Rogers customers will still be allowed to roam on the TELUS network. TELUS also argued that the nature of the relief sought was mandatory, amounting to an imposition of new terms under which TELUS must provide the mandatory ongoing roaming services.
Rogers and TELUS offer the only two national wireless networks in Canada. The Rogers network is broader in coverage but does not include certain rural areas and a few urban centres, primarily in Western Canada, where it has gaps or holes in its coverage. On the other hand, the TELUS network primarily caters to primarily caters to Western Canada and portions of Quebec.
Customers of Rogers and TELUS can roam on the network of the other such that they can access wireless services across the country. This ability is mandatory, and the government requires the reciprocal obligations of these wireless carriers to offer roaming services to their competitors.
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 device displays the name broadcasted by that network. For instance, "Rogers" when on the Rogers network, and "TELUS" when on the TELUS network.
TELUS alleged 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. As a result, TELUS asserted 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.
The history of reciprocal roaming agreements between the companies dates back to an agreement in 2014, which set roaming rates for 2014 and 2015. An arbitration decision in 2019 led the parties to execute a NID agreement that allowed Rogers to display "Rogers-EXT" on its customers' devices when roaming on the TELUS network until August 9, 2023.
The parties are presently engaged in arbitration to address roaming rates for 2023 and 2024, including the contentious issue of the NID display. Rogers insisted on maintaining the status quo until the resolution of this arbitration. At the same time, TELUS argued that the temporary suspension outlined in the 2019 arbitration decision has ended, and Rogers should now display the "TELUS" NID.
The Ontario Superior Court of Justice explained that the legal test for injunctive relief requires the moving party to demonstrate the existence of a serious issue to be tried, potentially irreparable harm, and a balance of convenience favouring the injunction. The court emphasized that the fundamental question was whether the granting of an injunction was just and equitable in all of the circumstances of the case.
Rogers contended that its position that TELUS is required to continue to provide roaming services was correct and met the threshold of a serious issue to be tried. TELUS argued that Rogers has framed the question incorrectly and that its request for relief is unnecessary since TELUS has committed to providing roaming services as long as Rogers displays the "TELUS" NID.
The court clarified that the issue was not whether roaming services could or should be terminated. The court was satisfied that they could not be terminated because of the license conditions requiring reciprocal access to roaming services by each carrier on the network of the other.
The court accepted TELUS' position that it was not threatening to terminate roaming access to Rogers' customers. The court also accepted TELUS' argument that the injunctive relief sought by Rogers amounted to a request for a mandatory order compelling the imposition of a new contractual term pending the next arbitration and the resulting agreement.
The court noted that the status quo was that Rogers could display the NID "Rogers-EXT." However, the court pointed out that the status quo was expressly brought about under the terms of an agreement that had already expired.
The court further said in the absence of an extension or a new agreement, the status quo was that there was no contractual obligation on TELUS to continue to perform the now-expired NID agreement. The court found that the practical effect of the position advanced by Rogers was to rewrite the NID agreement so that its terms did not expire on August 9. Instead, it continues until the issue is determined as part of the ongoing arbitration.
The court scrutinizes the serious issue to be tried, focusing on the 2019 arbitration decision mandating Rogers to display the "TELUS" NID. Rogers argued that this decision was not binding post-December 31, 2020, while TELUS asserted that the issue is res judicata and constituted an abuse of process.
The court ultimately concluded that even if the issue were not estopped, Rogers had not established a prima facie case of breach of contract or a breach of the duty of good faith. The fundamental problem was there was no contract yet for the period during which injunctive relief was sought since the NID agreement had expired. Accordingly, the court dismissed Rogers' motion for injunctive relief.
