Astral Média Inc. v. Canada (Attorney General), 2002 FCT 310

Date: 20020321

Docket: T-2256-01

Neutral citation: 2002 FCT 310

Montréal, Quebec, March 21, 2002

Before: Richard Morneau, prothonotary

BETWEEN:

ASTRAL MÉDIA INC.

Plaintiff

and

THE COMPETITION COMMISSIONER

and

THE CANADIAN RADIO-TELEVISION AND

TELECOMMUNICATIONS COMMISSION

and

THE ATTORNEY GENERAL OF CANADA

and

TÉLÉMÉDIA RADIO INC.

Defendants

Motion by the Canadian Association of Broadcasters for leave to intervene.

[Rule 109 of Federal Court Rules (1998)]

REASONS FOR ORDER AND ORDER

[1]        For the following reasons I intend to dismiss with costs this motion by the Canadian Association of Broadcasters ("the C.A.B.") made pursuant to Rules 109 and 369 of the Federal Court Rules (1998) ("the Rules").

[2]        The general background to this motion to intervene appears to be the following.

[3]        Under an agreement to purchase shares made between Télémédia Radio Inc. ("Télémédia") and Astral Média Inc. ("Astral") on May 16, 2001 (hereinafter "the proposed transaction"), Astral proposed to acquire control of Radiomédia and all the broadcasting enterprises of Télémédia and its affiliate Télémédia Radio Atlantic Inc., which are located in the province of Quebec and in the Maritimes respectively.

[4]        The Competition Commissioner ("the Commissioner") appointed pursuant to the Competition Act, R.S.C. 1985, c. C-34, initiated an inquiry into the proposed transaction pursuant to s. 10(1)(b) of that Act.

[5]        The Commissioner argued inter alia that the said transaction would probably have the effect of impeding or appreciably reducing competition in the francophone radio advertising markets located in the Ottawa-Hull, Montréal, Sherbrooke, Trois-Rivières, Québec and Chicoutimi-Jonquière regions.

[6]        Astral and Télémédia applied to this Court, by separate applications but to the same effect, asking it to rule that the Competition Act did not apply to the proposed transaction and that the Commissioner therefore lacked jurisdiction over the proposed transaction.

[7]        According to the previous decisions of this Court, Rule 109 imposes on a person wishing to intervene in a case the burden of showing that the following three tests have been met:

            (a)        the applicant for intervention must have an interest in the outcome of the proceeding;

            (b)        the outcome of the proceeding will seriously affect the applicant's rights;

            (c)        as intervener the applicant will bring a different perspective to the case.

Abbott v. Canada, [2000] 3 F.C. 482 (T.D.).

[8]        Rule 109 reads as follows:

[9]        First, I am not satisfied that the outcome of the applications for judicial review at issue will seriously affect the C.A.B.'s rights.

[10]      In the case at bar the C.A.B. argued that the decision to be rendered by this Court could have the effect of substantially reducing the predictability of policies and decisions by the government regarding Canadian broadcasters, and so compromise or appreciably threaten the security of the investments which must be made by Canadian broadcasters. I feel, as the Commissioner and the Attorney General of Canada pointed out, that this interest is of a purely "jurisprudential" nature, to use the expression adopted by Hugessen J. A. in Tioxyde Canada Inc. v. Canada (1994), 174 N.R. 212 (FCA). I am not satisfied that the case at bar will have a direct impact on the C.A.B.'s financial interests or property rights. Its only interest results from the fact that other transactions could possibly require approval by the Commissioner and the CRTC.

[11]      Further, it appears to me that the C.A.B. has not discharged its burden of establishing that its intervention will assist in the making of a decision on any question of fact or law relating to the case at bar.

[12]      As I see it, the C.A.B. is simply stating that it has expertise in the regulation of the broadcasting industry and has a new point of view, separate from that of the parties at issue, but it does not say in what way that expertise and point of view complement the arguments and facts put forward by the parties in the case at bar.

[13]      In fact, it appeared from the cross-examination on affidavit of Mr. O'Farrel - affidavit submitted in support of the motion - that contrary to what he alleged in that affidavit, the C.A.B. could not call any special existing expertise regarding the questions this Court has to decide in the case at bar.

[14]      Finally, it appeared that after requesting the C.A.B.'s intervention in the Federal Court proceeding to support its position, and being informed on January 21, 2002 of the C.A.B.'s decision to intervene, Astral never informed the Court, the Commissioner or the Attorney General of Canada of this at the proper time. Apparently, Astral kept these parties in complete ignorance of this intervention request, already decided on by the C.A.B., and accordingly negotiated with counsel for the other parties a schedule for an accelerated hearing that does not take this intervention into account. There is a problem of inequity and delay here which cannot be attributed to the C.A.B.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                                                          SOLICITORS OF RECORD

FILE:                                                                               T-2256-01

STYLE OF CAUSE:                                                     ASTRAL MÉDIA INC.

Plaintiff

and

THE COMPETITION COMMISSIONER

and

THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION

and

THE ATTORNEY GENERAL OF CANADA

and

TÉLÉMÉDIA RADIO INC.

Defendants

WRITTEN MOTION CONSIDERED IN MONTRÉAL WITHOUT APPEARANCE BY PARTIES

REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY

DATED:                                                                           March 21, 2002

WRITTEN SUBMISSIONS:

Daniel O'Brien                                                                  for the Canadian Association of Broadcasters

Jean-Christian Drolet

Carole Johnson                                                                  for the defendants the Competition

Athena Debbie Afraim                                                     Commissioner and the Attorney General of Canada

Réal Forest                                                                         for the defendants the Competition Commissioner and the Attorney General of Canada

SOLICITORS OF RECORD:

O'Brien, Attorneys                                                            for the Canadian Association of

Québec, Quebec                                                               Broadcasters

Morris Rosenberg                                                              for the defendants the Competition

Deputy Attorney General of Canada                                Commissioner and the Attorney General of Canada

Fasken, Martineau, DuMoulin                                           for the defendants the Competition

Montréal, Quebec                                                             Commissioner and the Attorney General of Canada

Stikeman, Elliott                                                                 for the plaintiff

Montréal, Quebec

John Keogh                                                                        for the Canadian Radio-Television and

Hull, Quebec                                                                      Telecommunications Commission

McCarthy, Tétrault                                                            for Télémédia Radio Inc.

Montréal, Quebec