Docket: A-464-15
Citation:
2016 FCA 261
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CORAM:
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DAWSON J.A.
GLEASON J.A.
WOODS J.A.
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BETWEEN:
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BALRAJ SHOAN
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Applicant
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and
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ATTORNEY GENERAL
OF CANADA
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Respondent
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REASONS
FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on
October 24, 2016).
DAWSON J.A.
[1]
The applicant challenges three decisions made by
the Chairperson of the Canadian Radio-television and Telecommunications
Commission on September 23, 2015. In the impugned decisions the Chairperson
established two panels to hear matters under the Telecommunications Act,
S.C. 1993, c. 38 and one panel to hear an application under the Broadcasting
Act, S.C. 1991, c. 11. The applicant asserts that:
- these
decisions raise true questions of jurisdiction and so are reviewable on
the standard of correctness; and,
- the
Chairperson does not have the authority to establish panels to hear these matters.
[2]
We disagree.
[3]
As noted by the Supreme Court of Canada in Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654 at paragraph 34, in Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court departed from
an extended definition of jurisdiction because, in a sense, anything a tribunal
does that involves the interpretation of its home statute involves the
determination of whether it has the authority or jurisdiction to do what is
being challenged on judicial review.
[4]
Thus, this Court has held that the Commission is
presumed to have the required expertise to resolve questions such as whether it
is authorized to promulgate a Code with retrospective effect (Bell Canada v.
Amtelecom Limited Partnership, 2015 FCA 126, [2016] 1 F.C.R. 29, at
paragraph 38).
[5]
In our view, this principle applies equally to
decisions of the Chairperson of the Commission. Thus, the decisions at issue
are reviewable on the standard of reasonableness.
[6]
With respect to the Chairperson’s authority to
establish panels, subsection 6(2) of the Canadian Radio-television and
Telecommunications Commission Act, R.S.C. 1985, c. C-22 (CRTC Act) states
that the Chairperson “is the chief executive officer of
the Commission, has supervision over and direction of the work and staff of the
Commission and shall preside at meetings of the Commission”. Implicit in
such a power is the “authority to assign cases and
members to cases (particularly, but not exclusively, where the statute refers
to the Chair as the Chief Executive Officer or as having the general management
of the agency.” (Robert Macaulay & James Sprague, Practice and
Procedure Before Administrative Tribunals (Toronto: Thomas Reuters, 1988)
(loose-leaf 2009-Rel. 7), ch. 4A at 51).
[7]
This implicit authority is explicitly recognized
in By-laws No. 9 and 26 of the Commission.
[8]
By-law No. 9, authorized by section 12 of the
CRTC Act, provides in article c that:
(c) the Telecommunications Committee
is delegated the authority:
…
(iv) to dispose of all procedural matters
to be dealt with by the Commission under the Rules of Procedure and to
make all procedural determinations in relations to matters under the Telecommunications
Act except those otherwise reserved to another standing committee or
a panel named by the Chair.
…
(xviii) to dispose of all applications for
the costs of an incidental to any proceeding before the Commission made
pursuant to section 56 of the Telecommunication Act and sections 60 or
65 of the Rules of Procedure except in cases where a panel has been
appointed.
(emphasis added)
[9]
By-law No. 26, authorized by section 11 of the
CRTC Act, provides in article c that:
(c) The Broadcasting Committee is
delegated the authority to:
…
(vii) make all procedural
determinations under the Rules of Procedure and pursuant to the Broadcasting
Act except those otherwise reserved to another standing committee or a panel
named by the Chair.
(emphasis added)
[10]
It follows that the Chairperson was fully
authorized to establish the three panels at issue so that this application will
be dismissed with costs.
[11]
The respondent seeks an award of costs on a
substantial indemnity basis. We are not satisfied that an award of costs approaching
an award on a solicitor client basis is warranted as such awards are generally
confined to cases where a party’s conduct may be said to be reprehensible or
scandalous. In our view, the applicant’s conduct does not rise to that level.
This said, in our view this application is sufficiently lacking in merit to
warrant an increased award of costs, which we fix in the amount of $5,000
inclusive of all taxes and disbursements.
“Eleanor R. Dawson”
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