Date: 20110211
Docket: 11-A-5
Citation: 2011 FCA 56
Present: LAYDEN-STEVENSON
J.A.
BETWEEN:
CKLN RADIO INCORPORATED
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LAYDEN-STEVENSON J.A.
[1] “CKLN-FM Toronto” is a community-based campus radio station
licensed to CKLN Radio Incorporated, based on the campus of Ryerson University (Ryerson) in
Toronto, Ontario. It
has held a licence to broadcast since 1983.
[2] CKLN Radio
Incorporated (CKLN) moves, on an urgent basis, for a stay of execution of the
decision of the Canada Radio-television and Telecommunications Commission (the
CRTC) in CKLN-FM Toronto – Revocation of Licence, Broadcasting Decision CRTC
2011-56, dated January 28, 2011 (the decision), pending the disposition of
CKLN’s motion for leave to appeal from the decision, and if leave is granted,
pending appeal. The motion was filed on February 9, 2011.
[3] The respondent Attorney General
of Canada (Attorney General), by correspondence dated February 10, 2011, takes
no position with respect to CKLN’s motion relating to an interim stay (that is,
the stay pending determination of its leave application) subject to the caveat
that such position should not be interpreted to mean that the Attorney General
admits any of the facts or concedes any of the positions or arguments set out
in CKLN’s motion record.
[4] The
Attorney General’s correspondence advises that the parties are agreed that CKLN
will address the issue of a further interim stay, simultaneous to the filing of
its motion record for leave to appeal the decision. With respect to the leave
application, the parties will adhere to the timeframes for the exchange of
materials set out in Rules 354 and 355 of the Federal Courts Rules
SOR/98-106 (the Rules).
[5] Because
the position with respect to the requirement for a further motion, simultaneous
with the motion record for leave to appeal the decision, is at odds with the
relief requested on this motion and because it was not clear to me why scare
judicial resources should be expended for determination of the same issue
twice, I directed counsel for the parties to attend for oral argument by
teleconference.
[6] Having
heard counsel, I now understand that the Attorney General’s position is
premised on the basis that he wishes to preserve his right to argue against the
granting of a stay pending appeal in the event that leave is granted. Further,
he wishes to be able to consult with his client and ascertain what position
will be taken. In the circumstances, and because it appears that counsel
discussed the matter and were agreed that such an approach was acceptable, I am
hard pressed to do otherwise. Consequently, my order and these reasons for
order relate only to a stay pending the determination of the application for
leave to appeal. Counsel for the Attorney General has indicated that, as soon
as practicable, he will notify counsel for CKLN as well as the Court if the
ultimate decision is to take no position on the request for a stay pending
appeal.
[7] Given
the time available within which to determine the matter – the decision revokes
the CKLN licence and requires it to cease broadcasting as of February 12, 2011
(tomorrow) – these reasons may be less extensive than they would otherwise be.
[8] CKLN
must satisfy the tripartite test articulated in RJR – MacDonald Inc. v. Canada
(Attorney General), [1994] 1 S.C.R. 311, that is, it must demonstrate:
(a) the existence of a serious issue; (b) irreparable harm if the stay is not
granted; and (c) that the balance of convenience, taking into consideration
both the interests of the parties and the public interest, favours the granting
of a stay.
[9] The
serious issue threshold is low and requires only a preliminary assessment of
the merits in the sense that the matter is not vexatious or frivolous. CKLN’s
proposed grounds are:
(1) the CRTC
deprived it of procedural fairness by creating and then ignoring a legitimate
expectation that, in these circumstances, the CRTC would follow its clear,
unambiguous and entrenched practice of graduated escalation of regulatory
measures prior to applying the exceedingly rare measure of a revocation of
licence mid-way through a full, seven-year licence term; and
(2) The CRTC
acted contrary to natural justice by basing its decision upon criteria – namely
the existence and details of a legitimacy dispute among the station’s
leadership – which it had earlier determined to be irrelevant.
[10] In addition
to heavy reliance on the dissenting reasons of a CRTC Commissioner, CKLN
provides references to jurisprudence in support of its grounds. I am prepared
to accept, for present purposes, that the low threshold of the existence of a
serious issue is met.
[11] Regarding
irreparable harm, I must assess whether refusing to grant the relief could so
adversely affect CKLN’s interests that the harm could not be remedied if the
eventual decision on the merits is contrary to the decision underlying the stay
application. It is the nature rather than the magnitude of the harm that is
pertinent. In this respect, CKLN says, even if successful on its leave
application and, if leave is granted, if successful on its eventual appeal, it
will be too late to remedy the following:
·
it
will lose its sought-after 88.1 FM frequency in a hotly-contested Toronto
market, a danger forecast by the dissenting Commissioner and confirmed by the
expressions of interest by other broadcasters in obtaining that frequency;
·
it
stands to lose its purpose-built, rent-free broadcast studio premises in the
Ryerson Student Campus Centre, which it will not be able to replace on a
comparable or rent-free basis;
·
it
will lose its core funding from the Ryerson University Students’ Union
collected in the form of a CKLN-FM radio levy from each student enrolled at
Ryerson because if the station goes off the air on February 12th,
Ryerson Students’ Union’s legally binding obligation to continue funding CKLN
would cease;
·
it
will lose the listenership it has slowly built over 28 years, which will
negatively affect its reputation, goodwill and ultimately the reciprocal
connection to the Ryerson and broader Toronto community that is the station’s raison
d’être;
·
the
loss of listenership will, in turn, impair its ability to raise revenues
through advertising and fundraising activities, both of which are inextricably
linked to listenership;
·
it
will lose programmers, including high-profile on-air personalities, who will
find other stations, should it cease to operate on February 12th;
·
it
will lose volunteers which are the lifeblood of the station, as they are with
most campus and community radio stations;
·
the
loss of the programmers and volunteers will seriously compromise CKLN’s unique
role and personality in the Toronto community as the source
of alternative musical and spoken-word programming not found on mainstream
media as well as the forum and “voice” for a range of under-represented groups
[12] The
evidentiary foundation detailing the above-noted consequences is comprised of
the affidavit of Lauren Speers (past member of the Board of Directors of CKLN
and presently working as a volunteer on station management and operational
issues) sworn February 7, 2011 and the affidavit of Andrew Lehrer (Vice-Chair
of the Board of Directors of CKLN) sworn February 7, 2011. The evidence is
uncontradicted and unchallenged.
[13] I am
satisfied, on the basis of the evidence before me, that irreparable harm has
been demonstrated. More specifically, in my view, the loss of the station’s
frequency, studio space and funding agreement with the students’ union would
mean that even if CKLN were ultimately to obtain leave to appeal and eventually
succeed on its appeal, it would be left without the means or capacity to resume
broadcasting.
[14] The balance
of convenience prong of the test requires me to determine which of the two
parties will suffer greater harm from the granting or refusal of the stay. The
public interest must also be considered. The harm to CKLN has been delineated
above; I have no submissions on the potential harm that could accrue to the
CRTC. As for the public interest, CKLN has provided a detailed recitation of
the various ways that it has sought to serve the public interest as well as
examples regarding why the continued broadcasting would be in the public
interest. In view of the time constraints, I will not reiterate the list, but
am satisfied that CKLN has tipped the scales in its favour in this respect.
Further, I note the absence of any reference in the decision to any harm to the
public interest that might ensue if the station remained on the air.
[15] CKLN has
satisfied the tripartite test. An order that the decision of the CRTC dated
January 28, 2011 be stayed pending determination of CKLN’s application for
leave to appeal will maintain the status quo. I advised counsel
accordingly and my order will follow.
"Carolyn
Layden-Stevenson"
Email this Content