Date: 20080725
Docket: 08-A-32
Citation: 2008 FCA 247
CORAM: EVANS
J.A.
RYER
J.A.
TRUDEL
J.A.
BETWEEN:
COMMUNICATIONS, ENERGY AND
PAPERWORKERS UNION OF CANADA
Appellant
and
CANWEST MEDIAWORKS INC.
Respondent
REASONS FOR ORDER
EVANS J.A.
[1]
The
Communications, Energy and Paperworkers Union of Canada (CEP) has brought a
motion in writing for leave to appeal a decision of the Canadian Radio-television
and Telecommunications Commission (CRTC). The decision in question is said to
be contained in a letter, dated February 28, 2008, and signed by Mr. Michel
Arpin (Arpin letter), the CRTC’s Vice Chairman, Broadcasting.
[2]
This letter
was written in response to a complaint by CEP about certain structural changes being
implemented by CanWest MediaWorks Inc. (CanWest) which, CEP alleges, would
infringe the Broadcasting Act, S.C. 1991, c. 11, and Regulations, and
the terms and conditions of CanWest’s broadcasting licence. CEP was concerned
that, if implemented, the changes would result in significant job losses for
its members. CEP requested that the CRTC hold a public hearing on its complaint
pursuant to subsection 18(3) of the Broadcasting Act.
[3]
The Arpin
letter stated that: (i) in the absence of evidence from CEP supporting its
allegations, the writer was unable to conclude that CanWest’s plans would put
it in breach of its licence; (ii) there was no evidence that CanWest was
currently in breach of its obligations as a licensee; and (iii) no public
meeting should be held at this time since the Commission would, if necessary,
examine the issues more closely at CanWest’s 2009 licence renewal, when the
plans to which CEP objected would be in operation.
[4]
As a
result, CEP’s complaint was not put on the agenda of a meeting of the CRTC or of
any of its delegates authorized to make binding decisions, and no further
action was taken on it.
[5]
In an
order dated June 11, 2008, Noël J.A. granted the CRTC leave to intervene in
CEP’s application for leave to appeal the Arpin letter pursuant to subsection
31(2) of the Broadcasting Act.
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31.
(1) Except as provided in this Part, every decision and order of the
Commission is final and conclusive.
(2) An appeal lies from a decision or order of the
Commission to the Federal Court of Appeal on a question of law or a
question of jurisdiction if leave therefor is obtained from that Court on
application made within one month after the making of the decision or order
sought to be appealed from or within such further time as that Court under
special circumstances allows.
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31.
(1) Sauf exceptions prévues par la présente partie, les décisions et
ordonnances du Conseil sont définitives et sans appel.
(2) Les décisions et ordonnances du Conseil sont
susceptibles d’appel, sur une question de droit ou de compétence, devant
la Cour d’appel fédérale. L’exercice de cet appel est toutefois subordonné à
l’autorisation de la cour, la demande en ce sens devant être présentée dans
le mois qui suit la prise de la décision ou ordonnance attaquée ou dans le
délai supplémentaire accordé par la cour dans des circonstances particulières.
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[6]
The CRTC
took the position before Noël J.A. that the Arpin letter did not constitute a
“decision of the Commission” for the purpose of subsection 31(2) and that,
since there was no decision to appeal, CEP’s application for leave to appeal should
be dismissed. In its response to CEP’s application for leave, CanWest did not make
this point.
[7]
Noël J.A.
granted the CRTC leave to intervene in CEP’s application for leave to appeal, on
the condition that it presented evidence and made submissions regarding the
CRTC’s processes and procedures in handling complaints, and whether the Arpin
letter was a “decision” which could be appealed. The CRTC has complied with
this condition by filing a record including an affidavit sworn by Robert A. Morin,
its Secretary General, and a memorandum of fact and law.
[8]
I agree
with the CRTC that the Arpin letter is not a “decision” within the meaning of
subsection 31(2) of the Broadcasting Act and that CEP’s application for
leave to appeal must therefore be dismissed.
[9]
Essentially
the same question was decided by this Court in Centre for Research-Action on
Race Relations v. Canada (Canadian Radio-television
and Telecommunications Commission) (2000), 266 N.R. 344 (F.C.A.) (Centre for
Research-Action). Writing for the Court, Strayer J.A. stated that the
Commission comprises the full and part time members of the Commission and that
since the letter was signed by the CRTC’s Executive Director, Broadcasting, it could
not constitute a “decision” of the CRTC which was capable of being the subject
of an appeal under subsection 31(2).
[10]
CEP seeks
to distinguish Centre for Research-Action on the ground that the letter
in that case had been written by a member of the CRTC’s staff, whereas the
letter in the present case was written by a Vice Chairman of the CRTC. I do not
agree. The central question is whether the Vice Chairman had the legal
authority to make a “decision of the Commission” with respect to the
complaint.
[11]
The Broadcasting
Act empowers the CRTC to, among other things, hold a public hearing and
issue a decision in connection with a complaint made to it.
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18.(3) The
Commission may hold a public hearing, make a report, issue any decision and
give any approval in connection with any complaint or representation made to
the Commission or in connection with any other matter within its jurisdiction
under this Act if it is satisfied that it would be in the public interest to
do so.
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18.(3) Les
plaintes et les observations présentées au Conseil, de même que toute autre
question relevant de sa compétence au titre de la présente loi, font l’objet
de telles audiences, d’un rapport et d’une décision — notamment une
approbation — si le Conseil l’estime dans l’intérêt public.
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[12]
The Canadian
Radio-television and Telecommunications Commission Act, R.S.C. 1985, c.
C-22 (CRTC Act) provides that the Commission comprises the full-time and
part-time members appointed by the Governor in Council.
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3.(1) There is hereby
established a commission, to be known as the Canadian Radio-television and
Telecommunications Commission, consisting of not more than thirteen full-time
members and not more than six part-time members, to be appointed by the
Governor in Council.
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3.(1) Est constitué le
Conseil de la radiodiffusion et des télécommunications canadiennes, composé
d’au plus treize membres à temps plein et six membres à temps partiel, nommés
par le gouverneur en conseil.
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[13]
The CRTC Act also
provides that a majority
of the full-time members and a majority of the part-time members constitute a
quorum of the Commission.
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10.(3) A majority
of the full-time members from time to time in office and a majority of the
part-time members from time to time in office constitute a quorum of the
Commission.
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10.(3) Le quorum
est constitué par la majorité de chaque catégorie de conseillers en fonction.
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[14]
However,
the Broadcasting Act authorizes the Chairperson of the Commission to establish
panels of three members each to deal with, hear and determine any matter on
behalf of the Commission.
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20.(1) The Chairperson
of the Commission may establish panels, each consisting of not fewer than
three members of the Commission, at least two of whom shall be full-time
members, to deal with, hear and determine any matter on behalf of the
Commission.
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20.(1) Le président du
Conseil peut former des comités — composés d’au moins trois conseillers dont
deux à temps plein — chargés de connaître et décider, au nom du Conseil, des
affaires dont celui-ci est saisi.
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[15]
In
addition, the Broadcasting Act enables the Commission to delegate powers
to special or standing committees of the Commission established by a Commission
by-law.
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11.(1)
The Commission may make by-laws
…
(b) respecting the conduct of business
at meetings of the Commission, the establishment of special and standing
committees of the Commission, the delegation of duties to those committees
and the fixing of quorums for meetings thereof;
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11.(1) Le Conseil peut, par règlement administratif :
[…]
b) régir le déroulement de ses réunions, ainsi que la
constitution de comités spéciaux et permanents, la délégation de fonctions
aux comités et la fixation de leur quorum;
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[16]
Pursuant
to this power, Commission By-law No. 26 established a Broadcasting Committee
comprising all members of the CRTC, with a quorum of three. The Committee’s delegated
powers include the authority “to determine, pursuant to subsection 18(3) of the
Broadcasting Act, whether it is in the public interest to hold a public
hearing in connection with any complaint … made to the Commission ….”.
[17]
It is
clear from these provisions that no single member of the CRTC, including the Vice
Chairman, Broadcasting, has the authority to exercise the statutory powers of
the CRTC, including the power in subsection 18(3) respecting a complaint.
Consequently, the Arpin letter cannot be a “decision of the Commission” for the
purpose of subsection 31(2) of the Broadcasting Act.
[18]
CEP also
says that, unlike the letter considered in Centre for Research-Action,
the Arpin letter does not state that it was not a decision of the CRTC, nor does
it indicate that it is merely expressing the personal opinion of the author. In
my view, these considerations cannot clothe the Vice Chairman, Broadcasting,
with a legal authority that he does not possess, so as to convert the Arpin letter
into a “decision of the Commission”. Similarly, the Arpin letter is not
rendered a “decision of the Commission” because the CRTC’s Rules of
Procedure and “Fact Sheet” may not adequately explain the process and
procedure by which the CRTC handles complaints, and Commission By-Law No. 26
delegating to the Broadcasting Committee the exercise of the CRTC’s power under
subsection 18(3) to hold a public hearing is not available to the public.
[19]
Although
the above considerations do not make the Arpin letter a decision for the purpose
of subsection 31(2), they do suggest that the CRTC could do a much better job
than it has in ensuring that complainants understand the effect of the kind of
letter written by Mr. Arpin, the CRTC’s administrative processes and procedures
for dealing with complaints, and who may make decisions in its name. The fact
that the experienced counsel retained by CanWest did not question the legal
status of the Arpin letter is further evidence that the CRTC needs to ensure
that its processes are better understood both by those it regulates and by interested
members of the public.
[20]
CEP also relies
on the alleged deficiencies in the CRTC’s process, and the fact that it was
reasonable for CEP to assume from the content and the identity of the author
that the Arpin letter was a decision, as the bases for requiring the CRTC to
pay its costs in the unsuccessful application for leave to appeal.
[21]
Noël J.A.
ordered that the parties to the CRTC’s application for leave to intervene in
the application for leave to appeal should assume their own costs. While I have
some sympathy with CEP’s position, it would be inappropriate to require the
CRTC, as an intervener, to pay CEP its costs on the application for leave to
appeal.
[22]
However, in
view of the circumstances described in paragraphs 18-20 above, and the fact,
despite the Court’s earlier decision in Centre for Research-Action,
CanWest did not raise the jurisdictional issue, I would make no award of costs
on the application for leave to appeal.
[23]
For these
reasons, I would deny leave to appeal from the Arpin letter and dismiss CEP’s
motion for leave to appeal, without costs.
“John M. Evans”
“I
agree.
C. Michael Ryer J.A.”
“I
agree.
Johanne
Trudel J.A.”
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