Canadian Cablesystems (Ontario) Ltd. v. Consumers’ Association of Canada et al., [1977] 2 SCR 740

Supreme Court of Canada

Canadian Cablesystems (Ontario) Ltd. v. Consumers’ Association of Canada et al., [1977] 2 S.C.R. 740

Date: 1977-04-29

Canadian Cablesystems (Ontario) Limited Appellant;

and

Consumers’ Association of Canada, Mrs. Helen Clements, Mrs. Mary Fisher and Mrs. Margaret Langford Respondents;

and

The Canadian Radio-Television Commission Respondent.

1977: March 30, 31; 1977: April 29.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson and Beetz JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Appeal—Decision of Commission set aside by Federal Court of Appeal—Leave to appeal granted by Supreme Court—Ground of appeal lost—Supreme Court Act, R.S.C 1970, c. S‑19, s. 41 (enacted 1974-75-76 (Can.) c. 18, s. 5)—Broadcasting Act, R.S.C 1970 c. B-11, s. 19.

The Canadian Radio-television and Telecommunications Commission’s decision of October 28, 1975, approved appellant’s claim for an increase in service fees and installation charges. The respondent Consumers’ Association of Canada objected to the decision, on the ground that it had not had the opportunity to examine the financial information concerning appellant, that was known to, but not disclosed by, the Commission.

This led to appeal and request for review by the Federal Court of Appeal of the Commission’s decision. The Court set aside the decision and remitted the matter to the Commission for reconsideration, “after the requirements of s. 19 of the Broadcasting Act have been complied with”.

The Court’s order was dated April 9, 1976, and, four days later, appellant requested the Commission to proceed with the reconsideration directed by the Court. The Commission decided not to challenge the decision of the Federal Court of Appeal and later made a policy pronouncement, modifying its previous practice as to nondisclosure of financial information.

The proceeding of April 13, 1976, was unknown to the Supreme Court on October 19, 1976, when it gave appellant leave (later extended as to time) to appeal from the decision of the Federal Court.

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The Commission’s decision on the reconsidered application, made on June 28, 1976, approved the requested fees and charges but not retroactively.

Held: The appeal should be quashed.

Appellant acquiesced in the decision of the Federal Court of Appeal or, at least, was content to pursue its claim for increased service fees and an installation charge on the basis of that decision, that is, of having its financial position disclosed.

Appellant seeks to attack the decision of June 28, 1976, collaterally, after having invited the Commission to act on the order made by the Federal Court of Appeal. No appealable decision of the Canadian Radio-television and Telecommunications Commission is extant, in any sense that makes it cognizable here. It was displaced, in accordance with the April 9, 1976 order of the Federal Court of Appeal, by a later decision, made after the parties acted upon that order.

It is no longer enough to establish that a lis of some sort exists to oblige the Supreme Court to hear an appeal, as was the case when appeals came here as of right. Leave has been required, in all civil matters, since January 25, 1975. The Supreme Court will give leave to come here in such matters only if the appellant makes out a case under s. 41 of the Supreme Court Act. Although the Court will rarely thereafter refuse to entertain an appeal on the merits, its power to do so is undoubted, whether leave is obtained from a provincial court of appeal or from the Federal Court of Appeal or from the Supreme Court itself.

Coca-Cola Co. v. Mathews, [1944] S.C.R. 385, c.f. Oatway v. Canadian Wheat Board, [1945] S.C.R. 204; Schlomann v. Dowker (1900), 30 S.C.R. 323 applied; Lissenden v. C.A. Bosch, Ld., [1940] A.C. 412; Findlay v. Findlay, [1952] 1 S.C.R. 96; Burrows v. Becker (1968), 70 D.L.R. (2d) 433; International Brotherhood of Electrical Workers v. Winnipeg Builders’ Exchange, [1967] S.C.R. 628 distinguished.

APPEAL from a judgment of the Federal Court of Appeal setting aside a decision of the Canadian Radio-television and Telecommunications Commission. Appeal quashed.

D.J. Wright, Q.C., and R.N. Waterman, for the appellant.

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John P. Nelligan, Q.C., and Greg Kane, for the respondents, Consumers’ Association of Canada et al.

John M. Johnson, for the respondent, Canadian-Radio-television Commission.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—At the opening of the hearing of the appeal in this case the Court, suo motu, raised the question whether there was any lis involved in the appeal of such a character as to justify this Court in entertaining the appeal on the merits. Although the Court had given the appellant leave to appeal on October 19, 1976, following a hearing on October 6, 1976, doubt was created by reason of assertions in the factum of the respondent Consumers’ Association of Canada, as to whether the issue on which leave was sought had not become moot by reason of facts existing at the time the application for leave was heard, facts which were not made a matter of record for the Court hearing the application nor put before the Court by counsel for the applicant. Moreover, they were not then brought before the Court by counsel for the respondent Consumers’ Association of Canada, which appeared in opposition to the application for leave.

It should be emphasized that it is no longer enough to establish that a lis of some sort exists to oblige this Court to hear an appeal, as was the case when appeals came here as of right. Since leave is now required (and has been required since January 25, 1975) in all civil matters, the Court will give leave to come here in such matters only if the applicant for leave makes out a case under s. 41 of the Supreme Court Act, as enacted by 1974-75-76 (Can.), c. 18, s. 5. Although it will be rarely that this Court, leave having been granted, will thereafter refuse to entertain the appeal on the merits, its power to do so is undoubted, whether leave is obtained from a provincial Court of Appeal or from the Federal Court of Appeal or from this Court itself: see Coca-Cola Co. v. Mathews[1]; cf. Oatway v. Canadian Wheat Board[2],

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(substratum of appeal removed); Schlomann v. Dowker[3].

In the present case what was sought to be appealed was an order of the Federal Court of Appeal of April 9, 1976, setting aside a decision of the Canadian Radio-television and Telecommunications Commission and remitting to that Commission the matter that was before it for reconsideration “after the requirements of s. 19 of the Broadcasting Act have been complied with”. Section 19 relates to the holding of public hearings by the Commission. What was involved in the conjoint appeal and review before the Federal Court of Appeal was whether there should be public disclosure at such a hearing of certain finacial statements and projections as to future earnings of the appellant licensee, which had applied to the Commission to amend its cable television licence to permit it to increase its charge to subscribers for basic service and to exact an installation charge.

The information had been supplied to the Commission by the appellant, but had been kept confidential under Commission policy at the time and at the insistence as well of the appellant. The respondent Consumers’ Association objected to the Commission’s decision made on October 28, 1975, approving the service charge increase and the installation charge, on the ground that it had not had an opportunity to examine the financial information that was before the Commission. It was the question of the right to have disclosure of such information that precipitated the appeal and the request for review by the Federal Court of Appeal of the Commission’s decision. That was the issue which was canvassed in the application for leave brought to this Court. There is no doubt of the importance of that issue in relation to the Commission’s licensing powers and this Court underlined its appreciation of that fact by granting leave to appeal.

What the Court hearing the application did not then know was that four days after the judgment of the Federal Court of Appeal, that is on April 13, 1976, the appellant requested the Commission to proceed with the reconsideration directed by

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that Court. On April 14, 1976, the Commission gave notice of a public hearing in the matter, to be held on May 19, 1976. Counsel for the appellant contended that this was a direction by the Commission which it was bound to obey, but counsel for the Commission, which as a respondent to the appeal, was represented before this Court, said that the Commission acted only because of the appellant’s request; it viewed the appellant’s application as a voluntary submission which could be withdrawn, and the announcement of April 14, 1976 was not an order. The Commission had decided not to challenge the Federal Court of Appeal’s decision and, indeed, it appears that it later made a policy announcement modifying its previous practice as to non-disclosure of financial information.

The conclusion is inescapable that the appellant acquiesced in the Federal Court of Appeal’s decision, or, at least, was content to pursue its claim for increased service fees and an installation charge on the basis of the Federal Court of Appeal’s decision, that is to say, on the basis of having its financial position disclosed. The Commission, apparently, substantially reheard the appellant’s application and reserved judgment on May 20, 1976. Shortly after the time it gave notice of the public hearing, which it had fixed for May 19, 1976, the Commission authorized the appellant to continue to collect the charges which had been approved under the decision of October 28, 1975, provided that the money collected was kept in trust pending the reconsideration of the matter by the commission and pending its decision thereon.

On June 2, 1976 the appellant moved, on consent of the Consumers’ Association and of the Commission, for an order to extend to October 5, 1976 the time to apply for leave to appeal to the Supreme Court of Canada. Pigeon J. made the order accordingly. In support of the application, a member of the firm of solicitors representing the appellant swore an affidavit in which he deposed that the pending decision of the Commission might render the appeal to the Supreme Court unnecessary. He put it this way in para. 13 of his affidavit:

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13. In the event that the Canadian Radio-television and Telecommunications Commission makes an Order permitting Canadian Cablesystems (Ontario) Limited to keep such funds, there would be no purpose to be served in proceeding with an appeal from the Federal Court of Appeal Judgment.

Although declaring that the appellant intended to appeal to the Supreme Court, the affidavit was candid enough to say that leave to appeal would not be sought if the Commission’s second decision allowed it to retain the money held in trust as well as otherwise approving the charges proposed by the appellant. To cover itself in respect of a possible appeal, the appellant, on consent, also obtained an order from the Federal Court of Appeal on June 8, 1976 for an extension of time in respect of leave of that Court to appeal here.

The Commission’s decision upon the reconsidered application was made on June 28, 1976. It approved the requested charges but decided that it had no power to authorize collection of those charges retroactively, and hence it ordered a refund of the trust money to subscribers. Leave to appeal this decision to the Federal Court of Appeal, in respect of the disposition of the increased charges collected prior to June 28, 1976, was obtained by the appellant on September 15, 1976, but an agreement was made by the parties to have the appeal stayed pending the decision of the Supreme Court of Canada on the proposed appeal thereto, and an order to this effect was made on November 17, 1976, which was after the Supreme Court gave leave to appeal. If I understood counsel for the appellant correctly, the parties later went beyond a mere stay and have terminated the proceedings before the Federal Court of Appeal, burning their bridges behind them, so to speak.

It is plain to me that the issue in the forefront of the appellant’s concern was the disposition of the money collected after the Commission’s first decision and up to its reconsidered decision of June 28, 1976. The disclosure issue had been passed by, and I cannot agree that any contention remained in respect thereof. Although success on that issue here would mean that the Federal Court of Appeal’s decision of April 9, 1976 would be set

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aside and the Commission’s decision of October 28, 1975 possibly restored, the reality of the matter is that the appellant is seeking to attack the Commission’s decision of June 28, 1976 collaterally, after having invited the Commission to act on the Federal Court of Appeal’s order of April 9, 1976.

On another view of the matter, there is no appealable decision of the Commission which is extant in any sense that makes it cognizable here. It was displaced, in accordance with the April 9, 1976 order of the Federal Court of Appeal, by a later decision made after the parties acted upon that order.

Counsel for the appellant urged upon this Court principles expressed or applied by the House of Lords in Lissenden v. C.A.V. Bosch, Ld.[4] and considered in this Court in Findlay v. Findlay[5] and Burrows v. Becker[6]. This line of cases is inapplicable to the state of facts disclosed here.

I think it proper that I should refer to the judgment of this Court in International Brotherhood of Electrical Workers v. Winnipeg Builders’ Exchange[7], where, when the appeal came on for hearing, it was contended, inter alia, that the Court should refuse to hear the appeal, notwithstanding that leave had been granted, because the interlocutory injunction which had been granted, and out of which the subsequent proceedings arose, was spent. Cartwright J., as he then was, speaking for the Court, stated that in such circumstances it was the Court’s well-settled practice to refuse to entertain an appeal. He pointed out, however, that the authorities on this question were before the Court on the application for leave and, it is clear that the Court hearing the application was fully apprised of the facts which might have a bearing on whether leave should be granted. Cartwright J. went on to say this (at p. 636):

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…leave was granted because it was urged that a question of law of great and nation‑wide importance was involved as to which there was a difference of opinion in the Courts below and, from the nature of things, it was unlikely that unless leave were granted in this or a similar case it would ever be possible to bring that question before this Court for determination.

The Court, in short, recognized the situation that arises quite frequently in labour‑management disputes where an interlocutory injunction, once granted, results in a cessation of the unlawful activity which gave rise to the injunction and a consequent end to or settlement of the friction between the parties but leaving important questions of law at large. The present case exhibits no comparable situation.

In my opinion, the present appeal has lost its raison d’être and I would, accordingly, order that it be quashed. Having regard to the compliant position of the respondents until the motion for leave was argued here, and to the fact that matters relevant to the consideration of the application to this Court for leave were not put before the Court by any of the parties, I would make no order as to costs.

Appeal quashed.

Solicitors for the appellant: Lang, Michener, Cranston, Farquharson & Wright, Toronto.

Solicitor for the Consumers’ Association of Canada et al., respondents: T. Gregory Kane, Ottawa.

Solicitor for the Canadian Radio-Television and Telecommunications Commission, respondent: C.C. Johnston, Ottawa.