Date: 20020131
Docket: 1999-1113-IT-G
BETWEEN:
THOMAS F. CHEEK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Mogan J.
[1] The Appellant has appealed from
income tax assessments for the years 1993, 1994, 1995 and 1996.
In each of those years, the Appellant was resident in the United
States of America and was not resident in Canada. In those years,
the Appellant came to Canada frequently to provide on radio a
play-by-play description of all home games played by the Toronto
Blue Jays, a professional baseball team playing in the
American League. In the Toronto sports community, the Appellant
is often identified as "the voice of the Blue Jays" but
he does not think of himself that way.
[2] The Appellant filed income tax
returns in Canada for each of the years under appeal. In those
returns, the Appellant reported the amounts of income earned in
Canada from his radio broadcasts of Blue Jays home games, but he
then deducted those same amounts under subparagraph
110(1)(f)(i) of the Income Tax Act on the
assumption that such amounts were exempt from tax in Canada
because of a provision contained in the Canada-U.S. Income Tax
Convention (1980). By notices of assessment, the Minister of
National Revenue disallowed the deduction of the amounts claimed
under paragraph 110(1)(f) in each of the years 1993, 1994,
1995 and 1996. The Appellant has appealed from those assessments
claiming that his income earned in Canada from broadcasting Blue
Jays home games is exempt from tax in Canada because of Articles
XIV and XVI of the Canada-U.S. Income Tax Convention
(1980) which I shall hereafter refer to as "the
Convention". The principal issue in this case is the
interpretation of Article XVI of the Convention.
[3] A person who is not resident in
Canada may be taxable on income earned in Canada if that
person is employed or carries on business in Canada.
Subsection 2(3) of the Income Tax Act states:
2(3) Where a person who is not
taxable under subsection (1) for a taxation year
(a) was
employed in Canada,
(b) carried
on a business in Canada, or
(c) disposed
of a taxable Canadian property,
at any time in the year or a previous year, an income tax
shall be paid, as required by this Act, on the person's
taxable income earned in Canada for the year determined in
accordance with Division D.
Under the above provision, the Appellant reported as income
those amounts which he regarded as earned in Canada through his
sale of reporting and promotional services with respect to the
Toronto Blue Jays. He then deducted those same amounts under
subparagraph 110(1)(f)(i) which states:
110(1) For the purpose of computing the taxable income
of a taxpayer for a taxation year, there may be deducted such of
the following amounts as are applicable:
(a) ...
(f) any
social assistance payment ... or any amount that is
(i) an amount
exempt from income tax in Canada because of a provision contained
in a tax convention or agreement with another country that has
the force of law in Canada,
[4] In the pleadings, the Respondent
has admitted that the Appellant was not resident in Canada at any
material time and that he was resident in the U.S.A. at all
material times. Therefore, the Appellant's liability for
income tax in Canada is determined by the Convention
because, when there is any inconsistency between the provisions
of the Convention and the provisions of the Income Tax
Act, the provisions of the Convention prevail to the
extent of the inconsistency. See Statutes of Canada 1984,
Volume 1, chapter 20, subsection 3(2). The relevant Articles of
the Convention are XIV and XVI as follows:
Article XIV — Independent Personal Services
Income derived by an individual who is a resident of a
Contracting State in respect of independent personal services may
be taxed in that State. Such income may also be taxed in the
other Contracting State if the individual has or had a fixed base
regularly available to him in that other State but only to the
extent that the income is attributable to the fixed base.
Article XVI — Artistes and Athletes
Notwithstanding the provisions of Articles XIV (Independent
Personal Services) and XV (Dependent Personal Services), income
derived by a resident of a Contracting State as an entertainer,
such as a theatre, motion picture, radio or television artiste,
or a musician, or as an athlete, from his personal activities as
such exercised in the other Contracting State, may be taxed in
that other State, except where the amount of the gross receipts
derived by such entertainer or athlete, including expenses
reimbursed to him or borne on his behalf, from such activities do
not exceed fifteen thousand dollars ($15,000) in the currency of
that other State for the calendar year concerned.
[5] The Appellant claims that he is
taxable only in the U.S.A. under Article XIV with respect to
his baseball broadcasting income because he did not have at any
material time "a fixed base regularly available to him"
in Canada. When the assessments under appeal were first issued,
the Minister of National Revenue relied on two basic
propositions. First, the Appellant was taxable in Canada under
Article XIV because his income earned in Canada was attributable
to a fixed base in Canada (i.e. the SkyDome in Toronto) which was
regularly available to him. And second, the Appellant was taxable
in Canada under Article XVI because his income earned in
Canada was derived "as an entertainer, such as a theatre,
motion picture, radio or television artiste".
[6] Six weeks before the commencement
of trial, counsel for the Respondent informed the Court and
opposing counsel that the Respondent would not rely on Article
XIV of the Convention. Accordingly, the parties at trial
argued only the application of Article XVI of the
Convention. If the Respondent is successful under Article
XVI, there is a subsidiary question concerning the amount of
income which the Appellant derives from his services in Canada.
To summarize, the principal question is whether the Appellant is
"an entertainer, such as a theatre, motion picture, radio or
television artiste" within the meaning of Article XVI
of the Convention.
Evidence
[7] At trial, the Appellant testified
describing his long experience as a radio broadcaster and the
services he performs in connection with the broadcast of
Blue Jays games. The Appellant was born in Pensacola,
Florida in 1939. He joined the U.S. Air Force in 1956 at the age
of 17. He stayed in the U.S.A.F. for three years specializing in
communications - assigned to the Strategic Air Command
- using a teletype to send and receive messages. Upon his
discharge from the U.S.A.F., he worked for an engineering firm in
1959-60 in upstate New York. In 1961-62, he attended the
Cambridge School of Broadcasting in Boston. Upon completing
his courses, he applied for jobs at small radio stations.
[8] In 1962, the Appellant was hired
for the summer as the "swing" announcer at radio
station WEAV in Plattsburg, N.Y. He broadcast news, sports and
music from 9:00 a.m. until noon and from 3:00 to 6:00 p.m. At the
end of his summer job, he was hired by radio station WJOY at
Burlington, Vermont in the fall of 1962 to broadcast news and
sports and to sell radio advertising. He described this job as
more selling than broadcasting. It was in this job, however, that
the Appellant started to spend his evenings following basketball
and hockey games at gymnasiums and rinks around Burlington.
[9] In 1964, he moved to a radio
station at Rutland, Vermont where he was on his own
(unsupervised) from 6:00 to 9:00 a.m. broadcasting news, sports,
weather, music, time checks and personal comments. The teletype
machine was hooked up to United Press International
("UPI") as a news service and the Appellant described
part of his job as "rip and read". He would rip the
incoming material from UPI off the machine and read it directly
to the radio audience without any prior opportunity to scan the
written word. At Rutland, he started to cover local high school
and college sports by going to the site; plugging in; and then
broadcasting.
[10] In 1965, the Appellant was back at WJOY
in Burlington holding different jobs as sports director and
broadcaster, program director, staff announcer and selling
advertising. At various times, he also did the morning show and
driving home show. In 1968, he joined the television group that
is now Channel 22 in Burlington but the job lasted only eight
months. In 1969, he went to radio station WCAX in Burlington
which later became WBVT. He stayed there until 1976 as sales
manager and later sports director. When his selling day ended, he
went to his preferred avocation of broadcasting local sports
events. In Rutland, he had done radio broadcasts of some Boston
Red Sox home games and later (around 1973), while still at WBVT,
he started doing radio broadcasts of some Montreal Expos home
games.
[11] The Appellant's big break came
(while still at WBVT) when he was asked to do the radio side of
those Montreal Expos games which were televised. He was the
standby broadcaster for about 20 to 40 games in Montreal per
season. He practised broadcasting into a tape which he would then
play back and critique in his car while driving home to
Burlington from Montreal. It was around 1976 when the Appellant
heard that major league baseball was coming to Toronto. At the
end of the 1976 baseball season, he was interviewed to discuss
the possibility of his broadcasting on radio the Blue Jays games.
He was given the job.
[12] At that time, the Appellant and his
wife and their children (son 10, daughter 7 and son 5) were
living in Burlington, Vermont. When he accepted the opportunity
to broadcast the Blue Jays games in the winter 1976-77, he and
his wife sold their home in Burlington, Vermont; they purchased a
home in Burlington, Ontario; and they moved to Canada. He recalls
arriving in Canada in February 1977 just in time to unpack and
then head south to Florida for spring training. The Appellant and
his wife lived in Ontario as landed immigrants from 1977 until
1992 while their three children were growing up attending Ontario
schools. By 1992, the three children were 25, 22 and 20 years of
age and were leaving home (or had left) for post-high school
education and employment in the U.S.A. The Appellant and his wife
concluded that it was no longer necessary to maintain a home year
round in Canada.
[13] The Appellant was born in Florida and,
in 1992, his mother was a senior citizen living there. It was
fairly easy for the Appellant and his wife to decide in 1992 that
they would sell their home in Ontario; and purchase a home in
Florida near Dunedin where the Blue Jays did their spring
training. They moved their domestic dwelling from Ontario to
Florida in 1992 and, at that time, the Appellant ceased being
resident in Canada. The first year under appeal is 1993 and that
is the first year since the Appellant started broadcasting Blue
Jays games when he was not at any time resident in Canada.
[14] The Appellant's job is to broadcast
on radio every game which the Blue Jays play: at home or away in
the regular season, any and all post-season games in the
playoffs, and all pre-season games during spring training. As I
recall the Appellant's evidence, he has participated in the
radio broadcast of every game which the Blue Jays have played
since they entered the American League in 1977. He is a man of
endurance. The Appellant described a typical workday if the Blue
Jays were playing an evening game staring at 7:00 p.m. He would
get up early and go on his computer to the web sights of the Blue
Jays and the team they were playing that day to pick up any
recent information concerning changes in the player roster,
whether a regular player was sidelined with an injury, whether a
new player was brought up from a farm team, etc. He might print
any information which he regarded as particularly relevant. He
would use the internet to scan the sports pages of daily
newspapers for any significant event in games played the previous
day.
[15] He arrives at the ballpark about 4:00
p.m. and meets with the engineer to select radio clips from prior
games which might be significant on that particular day. The
manager of the Blue Jays usually has a scrum with the media on
game day at 4:30 p.m. and the Appellant would always attend that
scrum. He would visit the clubhouse of each team, the dugouts,
the batting cages and speak with various players. He would eat a
very light supper and be in the broadcast booth at 6:30 p.m. for
the pre-game show. The Appellant works with Jerry Howarth. They
take turns doing the play-by-play and colour commentary and have
been working together for about 20 years. It was suggested to the
Appellant in cross-examination that he was known as
"the voice of the Blue Jays" but he said that he has
never ever identified himself or regarded himself as the voice of
the team. It is a fact, however, that the Appellant has been
involved in the broadcast of every game which the Blue Jays have
played since they entered the American League in 1977.
[16] A typical baseball game consumes about
three hours. Therefore, if an evening game started at 7:00 p.m.,
the Appellant would come off the air about 10:00 p.m. or shortly
after, having been in the broadcast booth since 6:30 p.m.
According to the Appellant, in the course of an average
three-hour baseball game, there are only 16 to 18 minutes when
there is actual "motion" on the field such as (i) a
pitcher delivering a pitch from the mound; (ii) a base runner
attempting to steal a base; or (iii) a batter hitting a
particular pitch thereby causing the ball, the batter, any base
runner and all fielders to be in motion. Because of the limited
time when there is motion on the field, there is a substantial
amount of "down time" in every baseball broadcast.
[17] The challenge facing the professional
broadcaster of baseball games is to hold the attention and
interest of the radio audience during the down time when there is
no motion on the field. The Appellant and his partner attempt to
meet this challenge with their knowledge of the game and its
rules, their experience, their knowledge of current and
historical statistics, biographical information on players, team
managers, coaches, and other prominent persons connected with the
game, and historical information on each team. The Appellant
stated that, during the regular season, he spends about five or
six non-broadcasting hours each day doing research and
accumulating current and historical information on the game and
its people so that he will have interesting material at his
finger tips for the down time in each game broadcast.
[18] A significant amount of the
Appellant's research each day is facilitated by the volume of
material published by major league baseball. Exhibit A-1 is eight
pages of "Media Information" published by the Blue Jays
every game day. Every other team publishes the same kind of
information on their game days. For a particular game, the
Appellant will review Exhibit A-1 and the corresponding document
from the Blue Jays' opponent in that game. Similarly, each
team publishes an "Official Guide" for the season (like
Exhibits A-3 and A-4) containing a substantial volume of team
information. And finally, major league baseball publishes every
day during the regular season up-to-date statistics on all teams
and players. Some of that information is in Exhibit A-5. The
Appellant himself keeps a box score of each game so that he will
know what has happened inning-by-inning. Exhibit A-8 is his box
score of a game between the Blue Jays and the Cleveland
Indians.
[19] Each party called an expert witness to
support its respective position. I find that the evidence of the
expert witnesses is not very helpful but will comment later in
these reasons on the evidence of the Respondent's expert.
Analysis
[20] The principal issue requires me to
interpret Article XVI of the Convention and apply it to
the facts. I will repeat from Article XVI only those words which
are most relevant for the purpose of this appeal:
... income derived by a resident of a Contracting State
as an entertainer, such as a theatre, motion picture, radio or
television artiste, or a musician, or as an athlete, from his
personal activities as such exercised in the other Contracting
State, may be taxed in that other State, ...
The Appellant as resident in the U.S.A. is "a resident of
a Contracting State". Also, the Appellant's broadcasts
in Toronto of all home games of the Blue Jays are "personal
activities ... exercised in the other Contracting
State". The basic question is whether the Appellant's
income earned in Canada is derived "as an entertainer, such
as a theatre, motion picture, radio or television
artiste".
[21] There is no doubt that professional
sports in itself is entertainment. A particular league (baseball,
hockey or football) will organize a schedule requiring all teams
in the league to play an equal number of games. People will
purchase tickets for the right to attend and watch and be
entertained by the playing of the games. For those people who are
not able to attend a game, a sponsor (frequently a corporation
producing a consumer product like beer or gasoline) will pay for
the right to describe on radio or to show on television the
playing of the game. Is the presentation of the game in a stadium
or arena or on radio or on television so inherently entertaining
that all persons connected with the presentation of the game are
"entertainers"?
[22] A baseball fan who turns on the radio
to listen to a Blue Jays game is entertained but who is the
entertainer? Is it the players on the field? Is it the
broadcaster like the Appellant who describes the play and whose
objective is to hold the attention of the radio audience? Or is
it both? If the Appellant is entertaining because of his
knowledge and the skills he uses to hold the attention of the
radio audience, is he in the words of Article XVI "an
entertainer, such as a theatre, motion picture, radio or
television artiste"? Can the Appellant be entertaining on
the radio without being a "radio artiste" within the
meaning of Article XVI?
[23] Having regard to the pleadings, the
Appellant claims that he is a sports broadcast journalist. The
Respondent claims that the Appellant earned income in Canada as
an entertainer and, in particular, as a radio artiste.
[24] It seems to me that there are four
basic ways in which a true baseball fan (probably a male!) may
follow his favourite team. First, he may attend and watch a
particular game. Second, if he cannot attend, he may watch the
game on television so that he will see what the camera shows.
Third, if he cannot watch on television, he may listen to the
game on radio so that he will hear what the broadcaster
describes. And fourth, if he cannot listen on radio, he will soon
after the game learn whether his favourite team won or lost by
reading the sports pages of a daily newspaper or by listening to
a sports broadcaster on radio or television or by going on the
internet.
[25] There is a significant difference
between the first three ways of following a favourite team
(attending a game, watching on television or listening on radio)
and the fourth way of learning the result after the event. There
is a real quality of entertainment in the first three ways
because the true baseball fan follows the game as it is played;
he participates in the anticipation and tension of each pitch and
in the thrill of any resulting action like a base hit, a homerun,
a strike out or a double play. That quality of entertainment is
not present when the fan learns the result after the game is
completed because he is then like any other person reading the
paper or listening to the news in order to know about an event
which has already happened.
[26] It is, therefore, somewhat misleading
for the Appellant to describe himself as a sports broadcast
journalist because the "broadcast" element of his
particular work (a play-by-play description of a game as it is
played) brings him within the entertainment area of professional
baseball whereas some other sports broadcast journalist may
appear on a radio or television morning show to report and
comment on games played the previous day. Although the
Appellant's broadcast activities bring him within the
entertainment area of professional baseball, I am not persuaded
that the Appellant is "an entertainer, such as a --- radio
--- artiste" within the meaning of Article XVI of the
Convention. For the reasons which follow, I will allow the
appeals.
[27] Upon examining the structure of Article
XVI, I conclude that "artiste" is a noun and that
adjoining words like "theatre, radio, television and motion
picture" are adjectives. Accordingly, the Appellant can be
brought within Article XVI only if he is a "radio
artiste" because the other adjectives do not apply to him.
For me, it is significant that the persons who drafted the
Convention used the word "artiste" when they
might have used some other word. Counsel for both parties
provided definitions of "artiste" from prominent
dictionaries as follows:
(a) an artist, esp.
an actor, singer, dancer, or other public performer.
Random House Webster's Unabridged Dictionary
(Second edition, Random House, New York, 1999);
(b) a professional
performer, esp. a singer or dancer.
Concise Oxford Dictionary (Ninth Edition, Clarendon
Press, Oxford, 1995)
(c) a professional
person in any of the performing arts; a person very skilled in
his work; often humorous or facetious;
Webster's New World Dictionary (Second College
Edition, Simon and Schuster, New York, 1980)
(d) a public
performer who appeals to the aesthetic faculties, as a
professional singer, dancer, etc.; also one who makes a 'fine
art' of his employment, as an artistic cook, hairdresser,
etc.
Oxford English Dictionary (2nd ed. 1989)
[28] All dictionaries referred to above
define "artiste" in relation to the performing arts,
like a singer or dancer. The performing arts would also include
dramatic acting whether on a live stage (theatre) or in the
movies (motion picture). There is no evidence that the Appellant
is a singer or dancer or actor. Indeed, I would conclude from his
evidence and his biography that he does not perform in any of
those areas. He is by training, experience and reputation a radio
broadcaster. When the Appellant was examined in chief, he stated
that what happens on the field dictates what he has to say on
radio. Under cross-examination, he stated that he regards himself
as a reporter and, until something happens on the field, he has
nothing to report.
[29] I think of the Appellant as primarily a
reporter. He is reporting live on radio what is happening in a
baseball game. He cannot himself change or cause anyone else to
change what happens on the field. Only the players can determine
what happens on the field. The Appellant primarily is reporting
what the players are doing as they do it. In terms of
entertainment, it is the players who are the entertainers. Fans
purchase tickets and attend games to see baseball played by
highly skilled players. Other fans watch televised games for the
same reason. Other fans listen to games on radio in order to know
how the performance of those same highly skilled players affects
a game play-by-play. It is the players who are
"performing" as professional athletes.
[30] Having regard to the dictionary
definitions of "artiste", a radio artiste is a person
who by some skillful and creative performance (for example,
singing or acting or interviewing third parties) can attract an
audience to hear that person herself or himself. In the golden
age of radio (i.e. before television), Jack Benny,
Fred Allen, Bing Crosby and Ma Perkins were radio artistes.
In recent times, Peter Gzowski was a radio artiste because he
used extraordinary interview skills to draw out individuals
(public persons and very private persons) in a way which made
their individual endeavours interesting to people all across
Canada. Radio audiences listened to people like Jack Benny, Bing
Crosby and Peter Gzowski just to hear them perform; not to hear
them describe how someone else was performing. The persons
drafting the Convention had some purpose in using the word
"artiste" by preference over any other word, and in
connection with words like "theatre", "motion
picture", "radio" and "television", each
of which can be a medium for the performing arts.
[31] In The Queen v. Crown Forest
Industries Ltd., 95 DTC 5389, the Supreme Court of Canada was
required to interpret Article IV of the Convention. The
facts in Crown Forest are not relevant but the Supreme
Court made some useful observations on the interpretation of
international tax treaties. Iacobucci J. delivering the judgment
of the Court stated at page 5393:
In interpreting a treaty, the paramount goal is to find the
meaning of the words in question. This process involves looking
to the language used and the intentions of the parties.
...
and further at page 5396:
Reviewing the intentions of the drafters of a taxation
convention is a very important element in delineating the scope
of the application of that treaty. As noted by Addy, J. in
J.N. Gladden Estate v. The Queen, [1985] 1 C.T.C. 163
(F.C.T.D.), at pp. 166-67:
Contrary to an ordinary taxing statute a tax treaty or
convention must be given a liberal interpretation with a view to
implementing the true intentions of the parties. A literal or
legalistic interpretation must be avoided when the basic object
of the treaty might be defeated or frustrated in so far as the
particular item under consideration is concerned.
... A similar position underpins American jurisprudence.
In Bacardi Corp. of America v. Domenech, 311 U.S. 150
(1940), the Supreme Court of the United States held at p. 163
that a treaty should generally be "... construe[d] ...
liberally ... to give effect to the purpose which animates
it." ...
and finally at page 5398:
I now turn to another set of extrinsic materials, other
international taxation conventions and general models thereof, in
order to help illustrate and illuminate the intentions of the
parties to the Canada-U.S. Income Tax Convention (1980).
Articles 31 and 32 of the Vienna Convention on the Law of
Treaties (Can. T.S. 1980 No. 37) indicate that reference may
be made to these types of extrinsic materials when interpreting
international documents such as taxation conventions; see also
Hunter Douglas Ltd. v. The Queen, 79 DTC 5340, (F.C.T.D.),
at pp. 5344-5345 and Thiel v. Federal Commission of
Taxation, 90 A.T.C. 4717 (H. C. Aus.), at p. 4722.
Of high persuasive value in terms of defining the parameters
of the Canada-United States Income Tax Convention
(1980) is the O.E.C.D. Model Double Taxation Convention on
Income and Capital (1963, re-enacted in 1977): Arnold and
Edgar, eds., Materials on Canadian Income Tax (9th ed.
1990), at p. 208. As noted by the Court of Appeal, it served as
the basis for the Canada-United States Income Tax Convention
(1980) and also has world-wide recognition as a basic
document of reference in the negotiation, application and
interpretation of multi-lateral or bi-lateral tax conventions.
...
[32] Following the guidance of the Supreme
Court, counsel put before me the O.E.C.D. Model Tax Convention
on Income and on Capital updated to April 2000. In
particular, Article 17 of the O.E.C.D. Model Convention
states:
Article 17
ARTISTES AND SPORTSMEN
1.
Notwithstanding the provisions of Articles 7 and 15, income
derived by a resident of a Contracting State as an entertainer,
such as a theatre, motion picture, radio or television artiste,
or a musician, or as a sportsman from his personal activities as
such exercised in the other Contracting State, may be taxed in
that other State.
[33] The O.E.C.D. Commentary on Article 17
of the O.E.C.D. Model Convention includes the following
passage:
3. Paragraph 1
refers to artistes and sportsmen. It is not possible to give a
precise definition of "artiste", but paragraph 1
includes examples of persons who would be regarded as such. These
examples should not be considered as exhaustive. On the one hand,
the term "artiste" clearly includes the stage
performer, film actor, actor (including for instance a former
sportsman) in a television commercial. The Article may also apply
to income received from activities which involve a political,
social, religious or charitable nature, if an entertainment
character is present. On the other hand, it does not extend to a
visiting conference speaker or to administrative or support staff
(e.g. cameramen for a film, producers, film directors,
choreographers, technical staff, road crew for a pop group etc.).
In between there is a grey area where it is necessary to review
the overall balance of the activities of the person
concerned.
[34] Respondent's counsel relies on the
above passage to argue that any U.S. resident whose primary
activity in Canada is to broadcast on radio is a radio artiste.
It is obvious that the Appellant is not a "behind the
scenes" man like a producer or sound engineer. Also,
broadcasting is not a negligible part of what he does to earn his
income in Canada. My concern is that if I disregard the content
of what the Appellant broadcasts into a radio microphone, then I
am not giving effect to the choice of the word
"artiste" in Article XVI.
[35] If I were to accept the
Respondent's argument, any television "news anchor"
like Lloyd Robertson or Peter Mansbridge in contemporary Canada
would be a television artiste. I regard any one of those
prominent news anchors as a highly competent journalist but not
as a television artiste. Peter Gzowski as a radio personality may
have been in the grey area between journalism and the performing
arts but, in my view, he was a radio artiste because of the
creative way in which he used his interview skills to shape the
program. For the television news anchor, it is current events
which shape the program. An artiste must have creative
talent.
[36] I do not find the evidence of the
expert witnesses helpful but will comment briefly on the evidence
of Tom Hedrick, called as an expert on behalf of the Respondent.
Mr. Hedrick's report (June 27, 2001) to counsel for the
Respondent is Exhibit R-6. Mr. Hedrick's resumé is at
pages 23 and 24 of Exhibit R-6. Although the resumé speaks
for itself, it is useful to note that Mr. Hedrick has had a long
career as a play-by-play radio broadcaster of football games
including seven years with the Kansas City Chiefs, three Super
Bowls for CBS and nine Cotton Bowls. Mr. Hedrick was asked to
express his opinion on the question: What is the role of a major
league baseball play-by-play broadcaster?
[37] In Mr. Hedrick's opinion, the top
radio announcer of a major league team has three basic skills.
First, he must be able to describe the plays accurately. Second,
he must be able to "fill in the blanks" because
baseball is a slow-moving game. He must be able to fill the
"down time" with stories, anecdotes, statistics and
strategy. He has an obligation to entertain the audience and keep
the broadcast lively, especially when the home team (i.e. Blue
Jays) is losing. And third, he must be a salesman for the home
team, getting the audience involved in the game and selling the
fans on the idea of coming out to a home game (i.e. SkyDome) to
watch a particular player.
[38] I have no reason to challenge the
opinion of Mr. Hedrick but his answer to the stated question
seems to reinforce the view which the Appellant has of himself.
The Appellant regards himself as a sports broadcast journalist.
There is no perfect analogy but, if I think in terms of newspaper
journalism, the Appellant is like a combined reporter and
columnist with respect to Mr. Hedrick's first two basic
skills. The political reporter describes accurately what is
happening at city hall or in the legislature or on parliament
hill just as the Appellant describes accurately the play on the
field. The op-ed political columnist draws on his knowledge,
experience and daily contact with politicians to comment on and
express opinions on the political machinations of the day just as
the Appellant draws on his knowledge, experience and daily
contact with players and managers to fill the
"down time" when there is no motion on the field. I see
the Appellant as a journalist and not as a performing artist.
[39] The headings used in any document may
be helpful when construing that document. The heading for Article
XVI is "Artistes and Athletes" and the heading for
Article 17 of the O.E.C.D. Model Convention is
"Artistes and Sportsmen". The Appellant is not
performing as an athlete or sportsman when he comes to Canada to
broadcast on radio the Blue Jays home games. It is obvious that
athletes and sportsmen "perform" in their chosen
athletic avocation; and their performance is inherently
entertaining. The baseball fan who turns on the radio to hear a
particular Blue Jays game wants to know how the Blue Jays
athletes are performing on the field. The Appellant may be able
to hold the attention and interest of the fan with his "down
time" commentary but he is not the reason why the fan turns
on the radio.
[40] The Appellant is not a radio artiste.
He is a very skillful and experienced radio journalist. The
appeals are allowed, with costs.
Signed at Ottawa, Canada, this 31st day of January, 2002.
J.T.C.C.
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