Date: 20030131
Docket: 02-A-24
Neutral citation: 2003 FCA 56
Present: NADON J.A.
BETWEEN:
VIDÉOTRON LTÉE
and
QUEBECOR MÉDIA INC.
Applicants
and
NETSTAR COMMUNICATIONS INC.
LE RÉSEAU DES SPORTS (RDS) INC.
and
BELL GLOBEMEDIA INC.
Respondents
Heard at Ottawa, Ontario, on January 27, 2003
Order delivered at Ottawa, Ontario, on January 31, 2003
REASONS FOR ORDER BY: NADON J.A.
Date: 20030131
Docket: 02-A-24
Neutral citation: 2003 FCA 56
Present: NADON J.A.
BETWEEN:
VIDÉOTRON LTÉE
and
QUEBECOR MÉDIA INC.
Applicants
and
NETSTAR COMMUNICATIONS INC.
LE RÉSEAU DES SPORTS (RDS) INC.
and
BELL GLOBEMEDIA INC.
Respondents
REASONS FOR ORDER
NADON J.A.
[1] The issue before me is whether the applicants filed their Notice of Appeal within the delay prescribed by section 31 of the Broadcasting Act, R.S.C. 1991, c. 11 (the "Act"), which reads as follows:
| 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.
(3) No appeal lies after leave therefor has been obtained under subsection (2) unless it is entered in the Federal Court of Appeal within sixty days after the making of the order granting leave to appeal.
(4) Any document issued by the Commission in the form of a decision or order shall, if it relates to the issue, amendment, renewal, revocation or suspension of a licence, be deemed for the purposes of this section to be a decision or order of the Commission.
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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.
(3) L'appel doit être interjeté dans les soixante jours suivant l'autorisation.
(4) Les documents émanant du Conseil sous forme de décision ou d'ordonnance, s'ils concernent l'attribution, la modification, le renouvellement, l'annulation, ou la suspension d'une licence, sont censés être, pour l'application du présent article, des décisions ou ordonnances du Conseil.
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[2] On November 22, 2002, this Court granted the applicants, pursuant to subsection 31(2) of the Act, leave to appeal from decisions CRTC 2002-254 and CRTC 2002-255 made by the Canadian Radio-Television and Telecommunications Commission on August 29, 2002. The applicants were so notified by the Registry on November 26, 2002 and the Order was recorded on that day.
[3] When the applicants attempted to file their Notice of Appeal on January 22, 2003, they were advised by the Registry that it could not be accepted, since they were outside the sixty-day period prescribed by subsection 31(3) of the Act. Hence, the present motion whereby the applicants seek an Order granting them leave to file their Notice of Appeal.
[4] The applicants submit that their delay to file the Notice of Appeal did not expire until January 25, 2003, i.e. sixty days from November 26, 2002. The respondents, on the other hand, contend that the sixty-day period must be calculated as of November 22, 2002, when the Court signed the Order granting the applicants leave to appeal and thus, as a result, the sixty-period expired on January 21, 2003.
[5] After a careful review of the jurisprudence, I am satisfied that when the applicants attempted to file their Notice of Appeal on January 22, 2003, they were still within the sixty-day period. In my view, the delay to file the appeal must be calculated from November 26, 2003.
[6] The authorities are clear that where an order or decision is not pronounced or delivered in public, the order or decision is not made until such time as the order or decision is entered by the Registry or when the parties are notified of the decision.
[7] I begin with the Supreme Court of Canada's decision in Robertson and Wigle (1888), Vol. XV 214, where the Court had to decide whether an appeal had been filed within the delay prescribed by Rule 269 of the Rules of the Maritime Court of Ontario, which reads as follows:
A party intending to appeal from a decision of the court to the Supreme Court of Canada must give notice of his intention to appeal to the opposite party within fifteen days from the time of pronouncing the decision appealed from, and otherwise the appeal to be governed by the rules of the Supreme Court.
In disposing of the matter, Sir W.J. Ritchie, C.J. said at page 216:
As there was no judgment delivered in open court on August 31, 1887, I am not prepared to differ from the opinion that the time would not run until entry of the judgment on September 15, 1887, and therefore the appeal is properly before this court.
Strong J., in concurring reasons, was also of the view that the time to appeal could not begin to run until the judgment had been entered. At page 218, he made the following remarks:
I do not recognize the handing by the judge to the registrar, not in open court but in his office or perhaps in the street, as a "pronouncing of a decision" within the terms of rule 269.
Then, if we are not to take the date of the 31st of August, 1886, as the time from which the fifteen days began to run, to what other date are we to ascribe the commencement of that period? There is only one other date to which it can be referred, and that is the date at which the registrar completed the judgment, and before the fifteen days, calculated from the time, had run out it is admitted that notice of appeal was duly served.
[8] I now turn to the decision of the Ontario Divisional Court in Fawkes et al. v. Swayzie (1899), Vol. XXXI O.R. 256, where the provision at issue, section 57 of the County Courts Act, R.S.O. c. 55, provided that an appeal had to be commenced within one month from the judgment or order complained of. The Divisional Court concluded that where a decision or order was not pronounced or delivered in public, it could not be held to have been made until such time as the parties were notified of it. At pages 259, 260 and 261, Armour C.J. stated:
... The theory of judicial procedure is that the cogent and binding effect of the order begins immediately from the time when the order is pronounced by the lips of the Judge, and if that could be done physically which legally is supposed to be done, and which one would desire to be done if it were possible, every order would be completed on the spot, written out by the judicial officer and in curid before the Court rises, and delivered to the parties. That is the unquestionable theory of judicial procedure, and in conformity with that theory the time when the order is "made," for the two words must be considered as equivalent and capable of being substituted the one for the other. The mere defining of the words of the Court by writing and reducing them into a form in which they can be evidence in a ministerial operation which, according to the true theory, succeeds the delivery of the order by the Judge, and must be in point of fact nothing in the world more than the physical embodiment on the spot by the Court of the words which the Judge has used."
[...]
I am of opinion that the principle of these decisions is entirely applicable to the case in judgment, and that the month mentioned in sec. 57 of the County Courts Act commences to run from the date of the judicial opinion or decision, oral or written, pronounced or delivered, and that the judgment or order founded upon it must be referred to that date.
If the judicial opinion or decision, oral or written, is not pronounced or delivered in open Court, then it cannot be said to be pronounced or delivered until the parties are notified of it.
[9] In Re Hache and Minister of Municipal Affairs (1969), 2 D.L.R. (3d) 186, the Appeal Division of the New Brunswick Supreme Court had to decide whether an appeal had been commenced within thirty days after the making of an Order by the Appeals Tribunal under the New Brunswick Assessment Act, s. 36 of which provided as follows:
Notwithstanding anything in any public or private Act, an appeal lies to the Court of Appeal from any order, decision or award of the Tribunal provided notice of such appeal is given to the other parties within thirty days after the making of the order or decision sought to be appealed from. [emphasis added]
At pages 193 and 194, after review of the relevant authorities, Hughes J.A. for the majority, made the following remarks:
The foregoing authorities satisfy me that the "making of the ... decision" referred to in s. 36 of the Assessment Act takes place when the decision is pronounced or delivered by the Appeals Tribunal at a hearing which by s. 30(11) is to be held in public or, if not so pronounced, when the parties have been notified of the decision.
[10] Re Hache, supra, was followed by the Appellate Division of the Alberta Supreme Court in Bowen v. Edmonton (City), [1976] A.J. No. 75. There, subsections 146(1) and 146(2) of the Planning Act, c. 276 Revised Statutes of Alberta, 1970, provided that leave to appeal a decision of the Development Appeal Board had to be obtained from a judge of the Appellate Division of the Alberta Supreme Court within thirty days after the "making of an order or decision of the tribunal sought to be appealed from". At paragraph 6 of his reasons, Moir J.A. held:
[6] ... I am of the opinion that in cases such as this, where the decision was not announced in public, that the effective "making" of the decision was when it was communicated to the persons affected... In that regard I am supported by Re Hache and Minister of Municipal Affairs, (1969) 2 D.L.R. (3d) 186, and by the decision of this Division in The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and The Board of Industrial Relations, [1975] 2 W.W.R. 470.
[11] I am satisfied, on the basis of the above cases, that the words "the making of the order" cannot possibly mean the date on which the order was signed by a judge. As the present matter clearly shows, many days may go by between the time the order is signed and the moment when it is entered or recorded by the Registry. Until such time as the order is recorded by the Registry, it cannot, in my view, be deemed to have "been made". To hold otherwise might lead to an absurd result. If, for example, a statute provided that the delay to appeal was fifteen days from the making of the order, and the order signed by the judge was not sent to the Registry before seventeen days, the party's right would have lapsed before it had even had occasion to become aware of the order.
[12] It is interesting to note that Rule 392(2) of the Federal Court Rules, 1998, provides that an order only becomes effective, if not when given orally from the Bench, when it is endorsed in writing and signed by the presiding judge.
[13] Rules 395 and 396 are also of interest. Rule 395 provides that the Administrator must provide a copy of every order made, other than in open court, forthwith to all parties. As to Rule 396, it provides that every order must be recorded by the Administrator "forthwith after it is made". In the present matter, the Order granting leave to the applicants to file their appeal was recorded by the Administrator on November 26, 2002 and a copy thereof was provided to the parties on that day. I am satisfied that the applicants' delay to file their Notice of Appeal only commenced to run as of November 26, 2002.
[14] I need not decide, in the present circumstances, whether the Order was "made" at the time it was recorded by the Administrator or when the applicants were notified of it, since both events occurred on the same day.
[15] I therefore come to the conclusion that the applicants were well within the delay prescribed by subsection 31(3) of the Act when they attempted to file their Notice of Appeal on January 22, 2003. The applicants' motion will therefore be allowed and the applicants will be granted leave to file their Notice of Appeal forthwith, which will be deemed to have been filed on January 22, 2003.
[16] The applicants shall have their costs on the motion.
"Marc Nadon"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: 02-A-24
STYLE OF CAUSE: VIDÉOTRON LTÉE et al. and NESTAR COMMUNICATIONS INC. et al.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 27, 2003
REASONS FOR ORDER: NADON J.A.
DATED: January 31, 2003
APPEARANCES:
Mr. Christopher Richter FOR THE APPLICANTS
Mr. Daniel Urbas
Mr. Pierre Trottier FOR THE RESPONDENTS
Mr. William Atkinson
SOLICITORS OF RECORD:
Woods & Partners FOR THE APPLICANTS
Montreal, Quebec
McCarthy Tétrault FOR THE RESPONDENTS
Montreal, Quebec
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