Date: 20120529
Docket: T‑1288‑10
Citation: 2012 FC 650
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, May 29, 2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA AND
DR. KARIM AMELLAL
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Applicants
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and
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CBC/RADIO‑CANADA
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
In 2009, the Canadian
Broadcasting Corporation/Société Radio‑Canada [Corporation] made
substantial nationwide budget cuts. Francophones in the region of southwestern Ontario, including Dr. Karim Amellal, complained to the Commissioner of Official
Languages of Canada [Commissioner] about the negative impact of the decrease in
local or regional content in CBEF Windsor’s radio programming.
[2]
Following
his investigation, the Commissioner concluded that the Corporation had failed
to comply with subsection 41(2) of the Official Languages Act, RSC,
1985, c 31 (4th Supp) [OLA], which requires that federal institutions
take “positive measures”, because it had not held prior consultations with the
official language minority community [OLMC] of southwestern Ontario or
conducted an analysis of the impact of its decision on that community. In 2010, the
Commissioner instituted this proceeding under Part X of the OLA, and Dr. Amellal
was added as an applicant.
[3]
Today, the
Corporation is asking the Court to summarily dismiss this proceeding on the
ground that its programming services (radio and television) are subject to the Broadcasting
Act, SC 1991, c 11 [BA] and that the Canadian Radio‑Television
and Telecommunications Commission [CRTC] has exclusive jurisdiction in
those matters. Alternatively, the CRTC is in a better position [translation] “to make informed
decisions” regarding the negative impact of budget cuts on CBEF Windsor’s
regional programming.
[4]
The
applicants are of the opinion that there is no conflict between the BA and the
OLA, and that the Federal Court has concurrent jurisdiction with the
CRTC and is in a better position to decide whether the Corporation breached
its duty, set out at subsection 41(2) of the OLA, to take “positive
measures” to enhance the vitality of Canada’s English and French linguistic
minority communities and assist their development. This requirement applies
not only to the Corporation’s communications with the public but also to its
programming, such that, in the event of noncompliance, the Federal Court may
grant such remedy as it considers appropriate and just (section 77 of the
OLA).
[5]
In order to
resolve the dispute in a manner that is fair, while being as inexpensive and
expeditious as possible, the parties have agreed that in this application to
the Federal Court for a remedy, the trial judge will rule on the preliminary jurisdictional issue
raised by the Corporation, if the evidence in the record so permits.
BACKGROUND
[6]
Created
in 1936 by an Act of Parliament, and modelled on the BBC, the Corporation is Canada’s national public broadcaster. The Corporation has to provide, in both official languages,
radio and television services incorporating a wide range of programming that
informs, enlightens and entertains (paragraph 3(1)(l) of the BA).
We will return later to the particular aspects of its
mandate. In
June 2011, the Corporation had approximately 8,660 employees,
82 radio stations and 27 television stations producing programs all
over the country.
[7]
The French‑language
radio networks are La Première Chaîne and Espace Musique. The network
programs are produced primarily in Montréal and broadcast on all of the
affiliated stations. La Première Chaîne, with
its local and/or regional programming, is broadcast throughout the country by
some 20 radio stations, including CBEF in Windsor, Ontario. Approximately 80 percent of La Première Chaîne’s
weekly programming is national in character.
[8]
In the
1990s, CBEF Windsor, which interests us here, had approximately
25 employees. It is the only French‑language radio station in
southwestern Ontario, where approximately 35,000 Francophones live.
In this environment dominated by English and the
Anglo‑Saxon and American cultures, Francophones rely heavily on the
preservation of a community‑based, good‑quality public radio
service where they can share information and views and see a reflection of who
they are. In 2001, when the Corporation’s
licences were last renewed, CBEF broadcast about 36.5 hours a week of
local or regional Windsor programs.
[9]
As a Crown
corporation, the Corporation has some independence from government control. It is funded
both by the public purse and commercial revenues (subscription fees and
advertising). Approximately 60 percent of
the funding comes from the budget, allocated to it on a yearly basis from parliamentary
appropriations. Therefore, every year, the
Corporation submits its corporate plan to the Minister of Canadian Heritage [Minister],
who is responsible for tabling a summary before each House of Parliament
(sections 54 and 55 of the BA).
[10]
Although
labour and operational costs continue to increase every year, it indeed appears
that the amount of public funding allocated to the Corporation does not follow
the same upward trend, remaining steady at approximately $1 billion
annually. Consequently, to balance its operating budget, the
Corporation has to be able to rely on commercial revenues. However, under the current licensing conditions, the
Corporation is not authorized to run commercial advertising on the radio, with
the result that this essential public service necessarily runs a deficit.
[11]
In 2009,
however, the Corporation faced a considerable shortfall of $171 million,
apparently attributable to the expected decrease in advertising revenue—to
which must be added the shortfall between the funding obtained from the
Treasury Board for its salary base and the actual increase in wages, as well as
other factors, such as increased production costs. Since it was not authorized
to borrow funds, the Corporation had to explore other options—all of which were
rejected by the government. It was therefore
forced to eliminate positions throughout the country, reduce its programming
costs and freeze discretionary spending.
[12]
Consistent
with its Recovery Plan, the Corporation abolished approximately
800 positions—60 percent of its overall budget being given over to
salaries—which generated a further $36 million in downsizing costs. For all French
services, the cuts affected over 300 employees, including 64 in the
regions. Needless to say, program production,
and thus programming, was permanently affected. In
making those cuts, the Corporation states having wanted to protect the regions
as much as possible by limiting the cuts’ effects on regional programs and by
mainly targeting the French and English national networks and their supporting
components, where 83 percent of the cuts were made.
[13]
In Windsor, the 2009 budget cuts diminished CBEF’s staff, which shrunk from
ten employees (nine of whom were assigned to radio and one, to television)
to three (a journalist‑videographer, a broadcast journalist and a
reporter in charge of producing local vignettes). It should be borne in mind
that, in January 2009, three (of about thirty) programs were produced in Windsor:
•
“Bonjour le monde”, aired
from Monday to Friday from 6 a.m. to 9 a.m., which dedicated about
15 minutes per hour to local content, including news reports;
•
“Grand Lacs Café Windsor”,
aired on Saturday from 7 a.m. to 9 a.m., which dedicated about
10 minutes per hour to local content;
•
“Au détroit de la nuit”,
aired on Monday from midnight to 4 a.m., a national program without any
regional content, broadcast nationwide.
These three programs were broadcast for the last time on
June 19, 20 and 21/22, 2009, respectively. According to the
Corporation, the third program was cancelled for programming reasons
and not as part of the Recovery Plan. According to the most recent information,
CBEF Windsor still broadcasts about five hours a week of locally produced
programs.
[14]
Unsurprisingly,
these changes to CBEF Windsor’s radio programming drew the ire of many of the
region’s Francophone residents.
SOS CBEF, a volunteer association, was founded.
Applicant Dr. Amellal is the association’s vice‑president.
Apparently not knowing where to turn, members of SOS
CBEF made individual complaints to the Corporation, the Minister, the Commissioner
and the CRTC.
[15]
In fact,
some 876 complaints were made to the Commissioner about CBEF Windsor’s
programming. Incidentally, the Commissioner did not investigate the
impact of these cuts on station CBE, which broadcasts Radio One with its
local and/or regional English‑language programming. On July 9, 2009, the Superior Court
of Justice of Ontario refused to issue an interlocutory injunction, citing lack
of jurisdiction: LaRoque v Société Radio‑Canada, [2009] OJ 2925 [LaRoque]. The applicants’ objective was to maintain the status quo
while the Commissioner investigated the complaints made to him.
[16]
In LaRoque, Justice Templeton of
the Superior Court of Justice of Ontario made the
following observation at paragraph 41 of his decision:
Having reviewed all of the evidence, it is my
impression that there has been a breakdown in communication with the
francophone public concerning the rationale and criteria used in the decision‑making
process by the SRC. The reduction in local Windsor content will undoubtedly
have a deleterious effect on the sense of sharing, support and intimacy from
which this isolated francophone community derives its strength and identity. In
my view, expert evidence is not required for such an observation. No matter
the language, people rely on local media newspapers, television and/or radio to
learn of matters concerning the community in which they live. A reduction of
the time or space available to broadcast local affairs will have an impact on
the community as a whole.
[Emphasis
added]
[17]
Although the injunction application was dismissed, it was
absolutely clear to Justice Templeton that CBEF Windsor “serves as a pillar for
the francophone community, enabling them to live in French” (LaRoque, above, at
paragraph 12). Nonetheless, the judge was
of the opinion that, by determination of Parliament, it was necessary to
approach the CRTC—the specialized body responsible for monitoring and
regulating radio broadcasting—regarding the dispute over the Corporation’s
programming, and that this dispute “requires the adjudicator deciding the case
to both understand the objectives of the Canadian Broadcasting system and its
mandate pursuant to [section 3 of the BA] and assess the impact of
financial constraints on those objectives” (LaRoque, above, at
paragraph 51).
[18]
That said, Justice Templeton did not rule out the possibility
that the Commissioner could make a concurrent application to the Federal Court
if he is of the opinion that the Corporation, as a federal institution, failed
to comply with the OLA (LaRoque, above, at paragraph 55).
[19]
In June 2010, following his investigation, the
Commissioner recommended that the Corporation review its decision concerning
CBEF Windsor in light of the duty of federal institutions, under
section 41 of the OLA, to take “positive measures”. At
the same time, the Commissioner recommended that the Corporation set up actual
mechanisms to consult on and assess the impact of its decisions on OLMCs.
However, from the outset, the Corporation refused to
cooperate and did not follow up on the Commissioner’s recommendations, which
resulted in this application for a remedy.
[20]
At this
stage, presuming that the applicants’ allegations are true, the
2009 budget cuts come on top of other cutbacks made over the course of
previous years. If the cumulative effects of these cutbacks are considered
from the point of view of local and/or regional programming, their impact on
the OLMC of southwestern Ontario is considerable.
[21]
However,
according to the Commissioner, federal institutions have the duty, under
subsection 41(2) of the OLA, to
a)
Take
“positive measures”, compatible with the mandate of each institution, to
enhance the development of OLMCs. However, every institution has some discretion
in selecting those measures; and
b)
Not hinder
the development of any OLMC. In 2009, there was no true prior consultation with OLMCs,
particularly when the Corporation did not really measure the impact of these
cutbacks on the vitality of the OLMC of southwestern Ontario.
[22]
Nevertheless, the Corporation is seeking to maintain some
dialogue with the OLMCs. In addition, although from a
regulatory perspective the minimum thresholds for local or regional content are
currently subject not to the conditions of licence, but only to the CRTC’s
expectations, the Corporation voluntarily set up a panel for the regions in
2000. However, this is not a mechanism for
engaging in prior consultations or for challenging and reviewing far‑reaching
corporate decisions made in the Corporation’s highest echelons, such as the
2009 budget cuts, affecting staff and programming.
[23]
In passing, following the official announcement of the 2009
cutbacks, the Corporation’s representatives did try to calm matters down
throughout the country by giving ad hoc explanations of its Recovery Plan and
the reasons for the cuts in the regions. This did
not stop SOS CBEF from continuing to take action against the Corporation; it
seems that the few accommodations later made to CBEF’s regional programming,
which now comes largely from Toronto, failed to satisfy the members of the
Francophone community.
[24]
In the
meantime, the CRTC began the public process of renewing all of the
Corporation’s licences. Both the Commissioner and Dr. Amellal announced that
they wished to intervene in this process. Unfortunately,
the public hearings related to the licence renewals were postponed several times
because of operational uncertainty related to the financial aspects of the
Corporation’s budget (Broadcasting Notices of Consultation 2011‑379, 2011‑379‑1
and 2011‑379‑2).
[25]
According
to the latest information, the CRTC intends to begin a public hearing, as of
November 19, 2012, to examine, in detail, both the Corporation’s
performance and budget plans and the renewal of its licences. As early as
April 2012, the Corporation announced that it wanted the CRTC to amend the
licences for Radio Two, Espace Musique and their affiliated stations to allow
national advertising to be broadcast, which would provide it with a means to
obtain additional funding. In this regard, the
CTRC is of the opinion that approving these amendments could have “perceptible
effects on the way CBC radio implements its mandate over the next few years”
(letter from John Traversy, Secretary General of the CRTC, to Hubert Lacroix,
President and Chief Executive Officer of the Corporation, dated May 18,
2012, and entered in the CTRC’s public record).
[26]
Ultimately, the evidence in the record shows that the
federal government simply has not budged. However,
the Standing Senate Committee on Official Languages has already publicly
announced that it has undertaken a study of the Corporation’s duties under the
BA and the OLA. A central focus of the Senate
review is to determine whether the Corporation is still meeting the specific
needs of OLMCs, at both the national and regional levels and through every form
of media (television, radio and Internet). The
Senate Committee also intends to determine whether the Corporation is
fulfilling the requirements of Part VII of the OLA by taking positive
measures for the vitality of OLMCs and the promotion of linguistic duality.
Its report is due out in autumn 2012.
JURISDICTIONAL ISSUE
[27]
Under
subsection 56(1) of the OLA, it is the duty of the Commissioner to take
all actions and measures within the authority of the Commissioner with a view
to ensuring recognition of the status of each of the official languages and
compliance with the spirit and intent of the OLA, including in relation to the
advancement of English and French (Part VII of the OLA).
[28]
To fulfill
that purpose, the Commissioner has the duty to investigate either on his own
initiative (subsection 56(2) of the OLA) or in response to any complaint
made (subsection 58(1) of the OLA). This is not the first time
that the Commissioner has examined the Corporation’s activities as part of the
federal government’s commitment to enhance the vitality of OLMCs (subsection 41(1)
of the OLA).
[29]
This
application for a remedy made under Part X of the OLA is important for all
of the parties to this case. The CRTC did not ask to intervene but did assist counsel by
locating for them and providing them with the relevant documentation required
by the Federal Court. This is a test case.
Many other OLMCs, including those in Yellowknife in
the Northwest Territories, Winnipeg and Thompson in Manitoba, Sudbury in Ontario and Sydney in Nova Scotia disagree with the cutbacks made in 2009 and the decrease
in the regional and/or local programming offered.
[30]
In this
case, rather than taking a head‑on approach against the federal
government, which seems largely responsible for the Corporation’s lack of
funding, the Commissioner is claiming to have general oversight over all of the
public broadcaster’s decisions that could affect the vitality of French and
English and the development of OLMCs. In sum, the Commissioner is asking the Federal
Court to examine the legality of the Corporation’s actions with respect to the
duty to take “positive measures” set out at subsection 41(2) of the OLA,
with which the Corporation is quite rightly taking issue.
[31]
More
specifically, in the course of these legal proceedings, during the examination
of its representatives, the Corporation objected to their being examined
regarding the internal discussions preceding or surrounding the budget cuts and
the choices made by management.
Rather than hear the appeals of the interlocutory
decisions made by Prothonotary Tabib, the Court, with the parties’ consent,
held hearings in January and April 2012 to deal with the jurisdictional
issue and has already scheduled hearings on the merits to be held in
October 2012, if necessary.
[32]
Today, the
Corporation contends that this application for a remedy must be summarily
dismissed on the ground that its programming activities, including the
transmission and distribution of all radio broadcast services, are governed
exclusively by the broadcasting policy for Canada, the conditions of licence
and the expectations set out in the CRTC’s decisions made under the BA
(sections 3, 18, 19 and 23 to 25 of the BA). Furthermore,
section 12 of the BA provides that a complaint may be made with the CRTC
where any person has failed to do any act or thing that the person is required
to do pursuant to Part II or any applicable regulation, licence, decision
or order or is doing any act or thing in contravention thereof, a section which
the co-applicant, Dr. Amella, made use of. Unfortunately, to the great frustration of
those who made complaints in 2009 about the decrease in regional or local
programming, the CRTC made it known that those complaints were entered in the
public record for the Corporation’s application to renew its licences.
[33]
From the
outset, the Corporation has taken up a line already very familiar to its
principal protagonist, the Commissioner, since the Corporation used the same
type of argument in the 1990s.
Following the decrease in public funding, the
Corporation had announced, in September 1996, budget cuts then totalling
$414 million (approximately one third of the Corporation’s
operational budget) spread over three years (1994‑95 to 1997‑98).
In June 1997, the Commissioner had produced his
investigation report on the complaints regarding the federal government’s
responsibility for the Corporation’s budget cuts and programming changes.
[34]
The fact
that the CRTC was designated by Parliament as the body in charge of regulating
and monitoring all aspects of the Canadian broadcasting system, including the
national broadcaster, is not contested by the applicants, although they do
emphasize that the OLA and the BA have separate and complementary purposes,
whereas Parts I to V of the OLA prevail over any inconsistencies between
the BA and the regulations
made under it (subsection 82(1) of the OLA). The discussions between the
Commissioner and the Corporation to arrive at a solution that would allow the
Corporation to remain independent while acknowledging its duties under the OLA
were a failure on account of a disagreement over the definition and scope of
the notion of “programming”.
[35]
In any
event, the Corporation states that, since 2005 (that is, since the amendments
made to Parts VII and X of the OLA came into force), it has been complying
with the duty set out at section 41 of the OLA as regards its “non‑programming”
activities. It thus submits to the Minister detailed annual action
plans and status reports. These set out the
positive measures taken to enhance the vitality and development of the OLMCs.
It goes without saying that this annual action plan
confers no right of consultation over budgetary and programming decisions.
However, the question of how Part VII of the OLA
applies to the Corporation’s programming activities has never been ruled on by
the courts.
[36]
However,
the Corporation concedes that, in its communications with the public (excluding
programming activities), it must comply with all of the applicable provisions
of Part IV of the OLA (Communications with and services to the public). The Corporation
also acknowledges that it is subject to Part V (Language of work) and Part
VI (Participation of English‑speaking and French‑speaking
Canadians). As for the duty set out at
section 41, found at Part VII (Advancement of English and French),
this can only apply to the Corporation’s “non‑programming” activities.
[37]
In passing,
the Commissioner gave consideration in 2009 to television production for
minority communities and concluded, in this regard, that “[t]he Government of
Canada may not be able to meet its obligations and commitments under
Part VII of the Official Languages Act if it allows the Canadian
broadcasting system to broadcast programs primarily in a language that does not
pass on Canada’s Francophone culture”. As a result, he had proposed ways of improving
the production and broadcasting of programs that reflect Francophone culture, a
number of which were directed at the national public broadcaster (Commissioner
of Official Languages, Shadows over the Canadian Television Landscape. The
Place of French on the Air and Production in a Minority Context, Ottawa, January 2009).
[38]
In
particular, the Commissioner was of the opinion that the Corporation should
show greater transparency in order to fully perform its duties under the OLA. The Corporation’s
status reports on the results of implementing section 41 of the OLA and
its reports to the CRTC were thus to provide a breakdown of expenditures for
official language programs in a minority context and include the number of
programming hours. That being said, the
Commissioner did not seem to call into question the Corporation’s power to cut
staff in the regions or decrease the number of regional and/or local production
hours, whether for television or radio.
[39]
In 2010,
therefore, the Commissioner took an important step when he questioned the
legality of the Corporation’s decision‑making process that resulted in
the 2009 cutbacks.
[40]
Consequently,
in his Amended Notice of Application, the Commissioner asked the Federal
Court to make various declarations and grant various remedies under
section 77 of the OLA—and section 18 of the Federal Courts Act,
RSC 1985 c F‑7 [FCA], if necessary—to the effect that the
Corporation is subject to the OLA, particularly Part VII, and that it
failed to comply with section 41 of the OLA when, in June 2009, it
made significant budget cuts to CBEF Windsor, without any prior consultation or
impact analysis. The Commissioner is therefore seeking an order requiring
the Corporation to review its decision concerning CBEF Windsor and to make the
necessary arrangements to compensate for the negative impact of this decision
on the OLMC of southwestern Ontario.
[41]
The
joint applicant, Dr. Amellal, supports the Commissioner’s request and, as
additional relief, is seeking a permanent injunction forcing the Corporation to
return to the previous number of local and regional production hours, if it
does not return to broadcasting the programs previously aired by CBEF Windsor
which were cancelled.
[42]
The Federal
Court must now rule on the
jurisdictional issue raised as a preliminary ground by the Corporation.
exclusive jurisdiction or
Concurrent Jurisdiction
[43]
Thus far,
the provincial courts of original general jurisdiction have refused to issue
injunctions or make declarations of right in respect of broadcasting
undertakings in cases where the CRTC clearly has jurisdiction to resolve the
dispute and where the rights claimed or the violations alleged solely
concern the interpretation or application of provisions of the BA or of the
regulations made under it (Trieger v Canadian Broadcasting Corp, [1988]
OJ 1764, at paragraphs 12 to 14; Mahar v Rogers Cablesystems Ltd,
[1995] OJ 3035, at paragraphs 17, 21 to 22, 25, 33 and 34).
[44]
Similarly,
in Canadian Union of Public Employees v Canadian Broadcasting Corp,
[1991] FCJ 241, the Federal Court ruled that it did not have jurisdiction under
sections 18 and 23 of the FCA to grant prerogative and injunctive relief
directing the Corporation to comply with its mandate—referring here to its
mandate under the Broadcasting Act, RSC 1985 c B‑9 [the
former BA]—and to adhere to and respect the requirements established by the
CRTC. First,
it was acknowledged that the Corporation is not a “federal board, commission or
other tribunal” within the meaning of section 2 of the FCA, meaning that
section 18 of the FCA cannot apply. In
addition, since this was a matter where jurisdiction had been “otherwise
specially assigned” under the BA, section 23 of the FCA also cannot not
apply.
[45]
The
“exclusive jurisdiction” model suggested by the decisions above thus pertains
to the exercise of injunctive power in civil matters or the supervisory power
of the superior courts, including the Federal Court. However, another model, one
of “concurrent jurisdiction”, has evolved in parallel in cases where there has
been an assignment of separate jurisdiction by a statute other than the BA
to an administrative tribunal, or even to the Federal Court.
[46]
Thus,
in Vlug v Canadian Broadcasting Corp, [2000]
CHRD 5, the
Canadian Human Rights Tribunal [CHRT] ruled that the Canadian Human Rights
Act, RSC 1985, c H‑6 [CHRA] required that the Corporation make all
of its Newsworld television and English‑language network programming
accessible to the deaf and hard of hearing, as soon as practicable, despite the
fact that subtitling is subject to the CTRC’s expectations or conditions of
licence (which, instead, set targets to be met).
[47]
In Canadian
Broadcasting Corporation v Canada (Information Commissioner), 2011 FCA 326,
[CBC v ICC], the Court had to interpret the scope of section 68.1 of the Access
to Information Act, RSC, 1985, c A‑1 [AIA]. This provision
excludes “any information that is under the control of the Canadian
Broadcasting Corporation that relates to its journalistic, creative or
programming activities, other than information that relates to its
general administration” (emphasis added). Arguing
that the courts have recognized the CBC’s journalistic independence from any
government interference and that the words, “journalistic, creative or
programming” come from the BA, which enshrines its independence, the
Corporation objected to any prior examination by the Information Commissioner.
[48]
Although
the BA applies to the Corporation’s programming activities, the Federal Court
of Appeal did not exclude the possibility that the AIA applies concurrently,
while confirming the Information Commissioner’s power of examination:
Although
Parliament intended that information related to journalistic, creative or
programming activities be excluded from the application of the Act, it also
wanted that information related to the CBC’s general administration – as
defined in section 3.1 – not be excluded. Subject to what is said in
paragraphs 73 and 74, below, it is the Commissioner’s role to initially
determine whether the exception applies and to exercise the recommendation
power vested in her by the Act.
[49]
Last, in Quigley
v Canada (House of Commons), [2002] FCJ 858, decided under Part X of
the OLA, the applicant was a Rogers Cable subscriber in New Brunswick who had
complained to the Commissioner that the Cable Public Affairs Channel (CPAC)
broadcast the House of Commons debates in their original version only. As the applicant
only spoke English, he was unable to understand those parts that are spoken in
French. It should be noted that, under
section 25 of the OLA, every federal institution has the duty to ensure
that, where services are provided or made available by another person or
organization on its behalf, any member of the public in Canada or elsewhere
obtain those services from that person or organization in both languages in any
case where the institution would itself be required to provide them in both
languages. The Federal Court declared that the
method used by the House of Commons and its Board of Internal Economy for
providing public television broadcasts of parliamentary proceedings contravened
section 25 of the OLA, and ordered that they take the necessary steps to
bring their practices into compliance with this provision.
[50]
Given the
case law discussed above, the Court must refrain from swiftly and mechanically
applying the CRTC’s exclusive jurisdiction model simply because the
Corporation’s programming was affected by the 2009 budget cuts. See also: Norton v Via Rail Canada, 2009 FC 704, at
paragraph 55 [Norton]; Quebec (Commission des droits de la
personne et des droits de la jeunesse) v Quebec (Attorney General), [2004]
2 SCR 185, at paragraph 11.
[51]
Therefore,
having considered all of the parties’ submissions in light of the applicable
law and the evidence on record, I am of the opinion that there is no conflict
between the OLA and the BA and that the court to which Part X applies,
that is, the Federal Court (section 76 of the OLA), has prima facie
jurisdiction to determine the scope of subsection 41(2) of the OLA and to
decide whether there was a failure to comply with the duty to take positive
measures. Need we be reminded, the OLA reflects a social and
political compromise; it gives the Commissioner the powers of a true linguistic
ombudsman and creates a judicial process that provides for relief in the cases
set out at subsection 77(1) of the OLA: Canada (Attorney General) v
Viola, [1991] 1 FC 373 at page 386 (FCA); R v Beaulac, [1999] 1
SCR 768 at pages 790 to 792; Forum des maires de la Péninsule acadienne
v Canada (Food Inspection Agency), [2004] 4 FCR 276, 2004 FCA 263 at
paragraphs 16 and 17; and DesRochers v Canada (Industry), [2009] 1 SCR 194 at paragraphs 32 to 35.
[52]
That said,
although the Federal Court has jurisdiction, strictly speaking, under
section 77 of the OLA according to the concurrent jurisdiction model, I am
of the opinion that it is preferable for the CRTC to first decide the issue of
the decrease in regional or local programming broadcast by CBEF Windsor before
I determine whether it is appropriate to either dismiss this application or
further examine the issues raised on the merits.
NATURE OF THE DISPUTE AND PARLIAMENT’S
INTENT
[53]
To decide
which of the concurrent legal schemes should govern the dispute, the Court must
first analyze the nature of the dispute to determine its essential character,
since the key question is whether, in its factual context, the essential
character of a dispute arises either expressly or inferentially from a legal
scheme. Second, the Court must also determine whether Parliament
intended for the dispute to be governed by the BA or by the OLA, depending on
what is indicated in the relevant legal provisions: St Anne Nackawic Pulp
and Paper Co v Canadian Paper Workers’ Union, Local 219, [1986] 1 SCR
704; Weber v Ontario Hydro, [1995] 2 S.C.R. 929; Regina Police Assn Inc
v Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360; Bisaillon
v Concordia University, [2006] 1 S.C.R. 666.
[54]
Whatever
opinion the Commissioner has today, there would not have been
876 complaints from Francophones in southwestern Ontario if the
Corporation had not decreased the regional and/or local content in CBEF
Windsor’s radio programming. In that sense, from the complainants’ perspective, what is
at issue is indeed the effect of the cutbacks on the programming broadcast by
CBEF Windsor, not the matter of whether the Corporation did or did not hold
consultations before making its decision. The
complainants are not claiming a right of consultation, although such a right
could be granted to them as a remedy in the event of noncompliance with the
OLA. What they want, first and foremost, is
for CBEF Windsor’s programming to strengthen Francophones’ ties to the OLMC of
southwestern Ontario. This cannot be achieved
otherwise than by raising the CRTC’s current expectations in terms of local and
regional programming.
[55]
Whereas the
OLA constitutes a comprehensive code on linguistic rights (Norton,
above, at paragraph 61), the BA also constitutes a comprehensive code—on broadcasting. The BA applies
to broadcasting undertakings, which include distribution undertakings and
programming undertakings, including networks (subsections 2(1) and 4(3) of
the BA). The word “programming” extends to
more than the mere words which go out over the air but the total process of gathering,
assembling and putting out the programs generally (R v CKOY Ltd, [1979]
1 SCR 2 at paragraph 23).
[56]
Full effect
must be given to Parliament’s intent that the specific procedure in accordance
with which the national public broadcaster provides its program offering, over
the full network and in the regions, be substantively established by the CRTC
as part of the public process to issue and renew the Corporation’s licences. It goes without
saying that the expectations and conditions of licence set by the CRTC must be consistent
with all of the applicable provisions of the BA and the OLA, which includes
ensuring adherence to the values and spirit of the BA and the OLA in promoting
the equal status of both official languages and supporting the development of
OLMCs.
[57]
Parliament
adopted and, over time, has amended the broadcasting policy for Canada set out at subsection 3(1) of the BA. The elements of this policy have been chosen
by Parliament with great care, following profound consideration and extensive consultation
and then a public debate, both as regards the former 1968 statute (SC 1967‑68,
c 25) and the new 1991 statute. Today,
the policy contains a set of political, social, economic and cultural
objectives that reflect the linguistic duality and the multicultural and
multiracial nature of Canadian society.
[58]
There is no
conflict between the purposes of the OLA and those of the BA. In both
statutes, the general will of Parliament is to foster the development and
enhance the vitality of OLMCs, while leaving the choice of means in the hands
of the federal institutions concerned and the broadcasters, including the
national public broadcaster. The same may be
said of the legal principles for the application of both statutes. As regards the OLA, the federal government’s general
commitment to enhancing linguistic duality is met by all of the federal
institutions in their respective fields of activity, whereas as regards the BA,
the general purposes of the broadcasting policy for Canada are implemented by
all broadcasters, taking into account their individual characteristics and the
complementarity of the programs offered by the broadcasting system as a whole.
[59]
It would
also be incorrect to think that the BA does nothing more than express wishful
thinking by Parliament. It does, in fact, set out a functional legal groundwork and
Parliament’s statement of certain guiding legal principles that may be
interpreted or even completed by the CRTC. For
example, the equal status of both official languages is not merely “formal”.
Parliament also seeks to counteract all regional
inequalities within the system and to do so in accordance with the specific
interests of both official language communities. In this respect, it is not a matter of requiring the national public
broadcaster to provide a single programming service broadcast simultaneously in
both official languages. On the contrary,
reference is made to two separate services, “reflecting the different
needs and circumstances of each official language community, including the particular
needs and circumstances of English and French linguistic minorities” (sub‑paragraph 3(1)(m)(iv)
of the BA, while the Corporation’s programming should also “strive to be of equivalent
quality in English and in French” (subparagraph 3(1)(m)(v) of
the BA) (emphasis added).
[60]
The
documentary evidence on record confirms that the statement of the broadcasting
policy for Canada is in continuous evolution and does indeed take into account
the equal status of the official languages and the importance of fostering the
development of OLMCs set out in both the former 1969 Official Languages Act (1970,
RSC c O‑2) and the new 1990 statute. Having read all of the
extensive documentation reproduced in the Joint Book of Supplementary
Documents, it appears to me that Parliament’s wish, without limiting the
Commissioner’s power in relation to carrying out investigations, is for the
Commissioner to make public any complaint made by citizens or groups of
citizens, including OLMC members, whether the complaint pertains to the
Corporation’s relations and communications with the public, at its headquarters
and in the regions, or to the very contents of its national and regional
programming.
[61]
However,
the Corporation’s mandate and mission in terms of the programming offered and
the distribution of its services in Canada are subject to a statutory framework
set out, first, by section 3 of the BA, which addresses the broadcasting
policy for Canada and the role of the national broadcaster
(paragraphs 3(1)(l) and (m)) and, second, by
sections 35 to 71 of the BA, which relate directly to the Corporation’s
operational methods and accountability. In fact, the national
public broadcaster is not an instrument promoting the government and its
ministers, but one promoting the broadcasting policy for Canada. That same policy was the will of Parliament, which entrusted the CRTC with
supervising the system.
[62]
Let me be
clear: the government cannot interfere with the Corporation’s programming
choices (subsections 4(1), 35(2), 46(5) and 52(2) of the BA). However, freedom
of expression and journalistic independence do not constitute a general licence
allowing the Corporation to avoid implementing the linguistic aspects of the
broadcasting policy for Canada, to ignore the regions and the OLMCs and to
decrease the contribution of artists and other local talents in its national
and regional programming. As well, the
Corporation’s programming for the people of Canada must include a certain
proportion of regionally produced programs, with which listeners and television
viewers will be able to identify. This is
especially true in the case of OLMCs, which are threatened by assimilation and
count on public radio and public television to preserve their language and
cultural identity.
[63]
Conversely,
the national public broadcaster is ultimately responsible before Parliament,
through the Minister, for the exercise of its activities (section 40 of
the BA). In passing, the Minister is also the one who, in
consultation with the other federal ministers, fosters and encourages
coordination of the federal institutions’ implementation of the commitment set
out at subsection 41(1) of the OLA (section 42 of the OLA). In addition, Canadian Heritage ensures that the Canadian
broadcasting and digital communications sectors participate in achieving Canada’s social, cultural and economic objectives as set out in the BA and promotes the
creation and broadcasting of Canadian content through numerous forms of media.
[64]
Since the
broadcasting policy for Canada has not been repealed or amended by Parliament,
the federal government must comply with it in full, not only in letter but also
in spirit. The onus is on the government, the Minister and any other
responsible minister to ensure that the Corporation receives adequate public funding
on an annual basis and has the financial capacity to provide Canadians with
programming that is consistent with the values, objectives and legitimate
expectations under the BA, which itself mirrors some key aspects of the OLA.
[65]
In
particular, the will of Parliament is for a range of broadcasting services in
French and English to be extended to all Canadians as resources become
available (paragraph 3(1)(k) of the BA). As regards the
Corporation’s programming, the public broadcaster’s mandate expressly includes
promoting both official languages, preserving the identity of French‑speaking
and English‑speaking minorities within the Canadian federation and
contributing to shared national consciousness and identity
(subparagraphs 3(1)(m)(iv), (v) and (vi) of the BA). That is the law, and everyone must obey it, including Her
Majesty in Right of Canada or a province (subsection 4(1) of the BA).
[66]
On this
level, it is interesting to note that the BA is more restrictive than the OLA
in terms of the accessibility of program services provided by the national
broadcaster. In the OLA, the availability of services in either official
language is contingent on the type of office (i.e., head or central office) or
the criterion of a “significant demand” outside the National Capital Region,
but the BA instead uses the criterion of “resources . . . available”
(subparagraph 3(1)(m)(vii) of the BA). As it is, the Corporation must have regard to the
principles and purposes of the OLA when planning to extend broadcasting services
(subsection 46(4) of the BA). Parliament
could not have been clearer.
[67]
The duty to
take “positive action” set out at subsection 41(2) of the OLA must be
interpreted and applied in light of the programming undertakings already
assumed by the Corporation under the BA or which the CRTC may require in the
form of expectations and conditions of licence. It is difficult to see how
the Commissioner or the Federal Court can, for example, require that the
Corporation offer radio programming in a given region simply because an OLMC is
located there. In fact, to do so, the
Corporation must hold a licence from the CRTC, presuming that a frequency is
available and it has been allocated to the Corporation. Furthermore, the antenna and facilities of the affiliated
station broadcasting the signal must have received Industry Canada’s approval in accordance with the Radiocommunication Act, RSC 1985 c R‑2,
and its regulations.
[68]
The CRTC
has vast powers under sections 9 to 13 of the BA and, under
section 17 of the BA, “has authority to determine questions of fact or law
in relation to any matter within its jurisdiction under this Act”. In Genex
Communications Inc v Canada (Attorney General), 2005 FCA 283, at
paragraphs 72 to 73, the Federal Court of Appeal noted the following about
the scope of its powers:
This independent
authority, the CRTC, was required by section 15 to regulate and supervise
all aspects of the Canadian broadcasting system. Thus, in the performance of
its duty of supervision and regulation, it was given exclusive power by
Parliament to issue licences, to make regulations respecting standards of
programs and advertising, to define the classes of persons who could be allowed
to hold broadcasting licences and to prescribe the conditions for the operation
of broadcasting stations as part of a network and the conditions for the
broadcasting of network programs . . .
The broadcasting
policy enunciated by the Act was also addressed to a number of issues of public
interest including the language of broadcasting, the need for a national public
broadcasting service, diversity and quality of programming, and recognition and
supervision of broadcasting undertakings, to mention only a few of these
issues.
[69]
In the
past, the CRTC has shown that it was prepared to make any order necessary to
promoting either official language and fostering the development of an OLMC. This is what the
CRTC did, for example, when in 1999 it forced broadcasting distribution
undertakings [BDUs] to distribute the French‑language television service of
Groupe TVA Inc. [TVA] across the country, thus responding to “a long‑standing
desire on the part of French‑speaking communities outside Quebec” and
being, in addition, persuaded that “national distribution of this television
service will contribute to promoting Canada’s linguistic duality and cultural
diversity” (Public Notice CRTC 1999‑27 – Order respecting the
distribution of the French‑language television service of TVA Group Inc.,
February 12, 1999).
[70]
Therefore,
far from wishing to minimize the Commissioner’s role as ombudsman—since he must
continue to receive complaints and conduct any investigations he deems useful
under the OLA—I am nonetheless of the opinion that the general jurisdiction of
the court identified under Part X of the OLA, the Federal Court, to grant
a “remedy” in the event of noncompliance with the OLA is necessarily only
concurrent with the CRTC’s specialized jurisdiction in broadcasting matters
under Part II of the BA.
APPROPRIATENESS OF THE CURRENT REGULATORY
FRAMEWORK
[71]
A great deal
of effort has been expended by both parties to satisfy me, as trial judge, to
continue the hearing on the merits of this application for a remedy, or to
dismiss it summarily, on the ground that the Federal Court could grant an
appropriate remedy, or else could not do so, assuming that the facts alleged by
the applicants are proven.
[72]
At this
stage, as made clear in the paragraphs that follow, I am of the opinion that
the complaints made to the Commissioner may appropriately be decided on the
merits by another authority: in this case, the CRTC. It must be remembered that,
according to subsection 77(5) of the OLA, “[n]othing in this section
abrogates or derogates from any right of action a person might have other
than the right of action set out in this section” (emphasis added). It is clear that the applicants have not waived their right
to intervene before the CRTC.
[73]
Moreover,
in the intervention he filed on July 8, 2011, Dr. Amellal asked the
CRTC [translation] “to re‑establish
the programs produced locally at CBEF 540, in accordance with the
programming that was current under Decision CRTC 2001‑529”, alleging the
following in that regard:
[translation]
The
CBC’s decisions and its plan for the future of CBEF are contributing to
Francophone assimilation in southwestern Ontario. The CBC has taken no steps to implement its commitment
towards the Francophone minority of southwestern Ontario to enhance its
vitality and support its development.
The
CBC failed to consult the community of southwestern Ontario before making major
cuts to the CBEF 540 station and neglected to assess the negative impact
that those cuts could have on the community. Those failings were detrimental to the vitality of our
minority community.
The
CBC is failing to comply with the Broadcasting Act, is failing to comply
with the current licence issued by the CRTC and has made crushing decisions for
the official language minority population.
We
believe that, as an institution that regulates and supervises compliance with
the Broadcasting Act and claims to take the reality of official language
minority communities into account, the CRTC must intervene in this situation.
[74]
In my
opinion, the process of renewing the Corporation’s licences is the forum
favoured by Parliament for discussions to be held on the decrease in local or
regional French‑language programming. For the time being, I must
assume that the CRTC will give particular attention to the applicants’
criticisms of the Corporation. This is part of
its mandate as regulator of the broadcasting system.
[75]
By nature,
radio is more regulated than television and still largely broadcast by radio
waves. In fact, these frequencies are a public good whose allocation to a
broadcaster presupposes a public review process, upon completion of which the CRTC
issues an operating licence to the licence holder that will best be able to
serve the people, taking into account the policies in effect, the public
interest and government guidelines.
[76]
Subject to
directions from the Governor in Council—particularly as regards the reservation
of channels or frequencies for the use of the Corporation or for any special
purpose (subsection 26(1) of the BA)—the allocation of frequencies is a
competitive process, such that the Corporation may even propose new networks (Métromédia
CMR Montréal Inc, Decision CRTC 99‑151, June 21, 1999; Canadian
Broadcasting Corp v Métromédia CMR Montréal Inc, [1999] FCJ 1637 (FCA)).
[77]
Since 1970,
the Corporation has been operating an AM radio programming undertaking in the
region of southwestern Ontario on the frequency 540 KHz (AM), known by the
name CBEF Windsor. Using its rebroadcaster at Leamington, CBEF‑1 FM, the
Corporation broadcasts the same programming at 103.1 MHz (FM), which
ensures improved broadcasting of La Première Chaîne in this part of the
country, which is served almost exclusively by English‑language networks
on both sides of the border.
[78]
However,
since CBEF is the only French‑language station in the Windsor region, and
a great many Francophones in the area understand English, the lack of a French‑language
FM station encouraged them to tune into English‑language stations
instead. As a result, in 2008, the CRTC also allowed the Corporation
to operate an overlapping rebroadcasting FM transmitter at Windsor, operating
at 102.3 MHz and covering about the same area as CBEF Windsor.
[79]
Let us
leave aside, for the moment, the fact that La Première Chaîne’s network
programming, produced primarily in Montréal, is broadcast throughout the
country. One thing is clear: all of the stakeholders agree that, in
order for the public broadcaster to fulfill its mandate, it is not enough for
it to broadcast nationwide in French. First,
its programming must be mainly Canadian. Second,
that programming must also reflect the regions and the people who live there,
if not be produced locally or regionally.
[80]
Furthermore,
in its application for licence renewal for CBEF Windsor in 1993, the
Corporation itself acknowledged that [translation]
“French radio must remain regional radio”, and that [translation] “in many parts of the country, only the CBC is
able to make regional programming available in French”. Stating next that [translation] “it is therefore through
regional programming that French radio will secure the loyalty of listeners,
whom it will then be able to provide with a choice of programs that are clearly
distinctive in terms of their content and crafting”, the Corporation claimed it
was [translation] “persuaded that
it inhabits a unique niche in the radio landscape of Windsor and the
surrounding area”.
[81]
In Decision
CRTC 2001‑529, the CRTC clearly stated that the Corporation has a
duty to fulfill its responsibility to broadcast local and regional programming
on each of its affiliated stations:
In March 1999, the
Commission held a series of public consultations. During these consultations, a
number of representatives of Francophones from areas other than Quebec complained about the lack of coverage of their communities in the programs broadcast
by the CBC. As the Commission noted when it last renewed the CBC’s network
licences in January 2000, “given Canada’s cultural and social diversity and the
needs and interests of Anglophone as well as Francophone audiences, the CBC
should emphasize programming that reflects all the communities of this country.
This obligation is at the very heart of the CBC’s mandate. If Canada’s many voices and faces are to be represented on the public broadcasting service,
the CBC must have a stronger presence in all parts of the country and must be
committed to regional talent.” The Commission reaffirms the particular
importance it attaches to the CBC’s responsibilities to provide regional
programming on its individual stations. Accordingly, the Commission expects the
CBC to maintain the levels of regional and subregional programming currently
broadcast on each of these stations. The Commission also strongly
encourages the licensee to surpass these levels during the new licence term.
[Emphasis
added]
[82]
From a
regulatory standpoint, a distinction should be made between “regional”
programs, which may be produced outside an affiliated station (but within the
same province) and so‑called “local” (sub‑regional) programs,
produced at the affiliated station itself. Therefore, in 2001, when
the Corporation’s licences were most recently renewed, the CRTC stated that it expected
the Corporation to maintain the current levels of regional and local
(sub‑regional) programming at its affiliated stations, while strongly
encouraging it to surpass those levels during the new licence term—referring
then to the period from September 1, 2001, to August 31, 2007.
[83]
However,
the cutbacks over the last years have had a substantial impact on the hours of
programming produced by CBEF Windsor, to such an extent that one may well ask
whether it still fulfills its role as a local French‑language information
station on the AM band (simultaneously rebroadcast on the FM band) in Windsor’s
radio landscape. In June 2010, the Commissioner made the following
observation at page 22 of his final investigation report:
[translation]
The
near‑total loss of local radio content spells the effective loss of the
radio station that was considered part of the infrastructures providing
institutional support to the official language minority community of
southwestern Ontario. Its disappearance is detrimental to the minority
community’s vitality and development. Owing to the Francophone population’s
lack of interest in the new format and the loss of the only tool in which the
community saw itself reflected each day, the Francophone community is now
turning to English‑language radio, which will most likely be detrimental
to its identity.
[84]
And yet, in
brighter days—meaning the state of affairs before 1996—CBEF Windsor had some
25 regular employees, 15 of whom were assigned to programming and 7 of
whom worked on news and information. That said, following
the 2009 budget cuts, it seems that the affiliated station in Toronto, CJBC,
benefited from an increase in local and/or regional production, to the
detriment of CBEF Windsor. In fact, in
2001, CJBC broadcast approximately 27.5 hours a week of programs produced
in Toronto, whereas, during the 2010‑2011 period, programs produced in Toronto reached 32 hours a week.
[85]
Ten years have passed since the Corporation’s licences were
last renewed. It is therefore high time that
the Corporation provide Canadians with an explanation of its programming
choices and of its vision for the future in a setting where the interested
parties will have the opportunity to be heard. In
this case, I believe that the best forum is indeed the CRTC, which acts as
regulator and lawmaker (by delegation) in the area of broadcasting. In all likelihood, the
stakeholders and other interested parties will make submissions to the CRTC
insisting that the Corporation now be required, by conditions of licence, to
meet a minimum threshold for local and/or regional programs that are regionally
broadcast and produced. Presumably, if the Corporation fails to compromise, it is
to be expected that the battle before the CRTC for a return to the previous
level of local programming in Windsor will be very bitter. One might even have to call it a “fight to the finish”
between the Corporation, the Commissioner and the Francophone population of
southwestern Ontario, which is not desirable in a context where the “public
interest” must come first.
[86]
To go by
the documentation currently in the public record, the Corporation’s plan for
the next licence term is for 20 hours and up of the weekly broadcast to be
locally produced at “main” stations and, by contrast, for 5 to 20 hours of
the weekly broadcast to be locally produced at “remote” stations. The
Corporation now wants the CTRC to set out expectations backing the
organizational and operational changes that have been made in terms of content
produced locally and/or regionally. According to the plans announced by the
Corporation in 2011, in Ontario, the affiliated stations in Ottawa, Toronto and Sudbury, which broadcast La Première Chaîne, would all become “main” stations,
whereas the Windsor station, which also broadcasts La Première Chaîne, would
become a “remote” station. In the case of CBEF
Windsor, this means only five hours of local production a week, unless, of
course, the Corporation revises its plans or is forced to do so.
[87]
The 2009
cutbacks were made over three years ago, so I have trouble seeing how,
today, the Federal Court can legally force the resumed broadcasting of
cancelled programs or set a minimum threshold for local or regional production. This power
belongs instead to the Canadian broadcasting system regulator, the CRTC, which
has an overall picture of the Corporation’s broadcasting activities and its
future plans for programming produced in the major centres and in the regions.
In this case, nothing has shown me that it will not be
possible for the complaints made to the Commissioner in 2009 to be decided
appropriately on the merits. In my opinion,
the fact that the CRTC considers other factors in addition to the language
issue is not, in itself, sufficient for me to agree to entertain this
application for a remedy at this stage. Concern
for judicial economy strongly favours letting matters play out.
[88]
In this regard, the CRTC’s practice is to integrate the
purposes of section 41 of the OLA into the activities it carries out. It
takes into account its duties under that provision by making certain to
consider the needs of OLMCs in respect of the hearings held, policies developed
and decisions made, in addition to other factors that it has to take into
account. As well, in July 2009, the CRTC
accepted the Commissioner’s proposal to conduct an analysis of the impact of
its decisions on the OLMCs as part of its decision‑making process.
As a result, the CRTC announced that it intended to
engage in this process systematically to show that it is fulfilling its duties
and to demonstrate in its decisions that consideration was given to all of the
factors. Similarly, given the importance of
the Corporation’s radio programming in the communities and within the
broadcasting system, the CRTC intends to review the Corporation’s contributions
to the reflection of those communities when its licences are renewed (Report to the Governor in
Council on English‑ and French‑language broadcasting services in
English and French linguistic minority communities in Canada).
[89]
It is true
that subsection 77(4) of the OLA allows the designated court (the Federal
Court) to “grant such remedy as it considers appropriate and just in the
circumstances”; nonetheless, the exercise of that power cannot directly
conflict with the powers of the CRTC. Indeed, Parliament has stated in the BA that
the objectives of the broadcasting policy for Canada can best be achieved by
providing for the regulation and supervision of the Canadian broadcasting
system by a single independent public authority, namely, the CRTC
(subsection 3(2) of the BA).
[90]
Consequently,
although in the narrow sense the Federal Court does have jurisdiction to
entertain this application under sections 76 to 81 of the OLA, I am of the
opinion that the CRTC is in a better position than the Federal Court to assess
the impact of the budget cuts on the Corporation’s programming, including as
broadcast by CBEF Windsor. After consulting with the Corporation, the CRTC will, if
necessary, be able to strengthen the current expectations, if not propose new
conditions of licence, in order to enhance the vitality and support the
development of OLMCs. This will not affect the Corporation’s right to later
submit any condition of licence to the Minister for consideration, if the Corporation
is of the opinion that the condition would unreasonably impede it in providing
its programming (section 23 of the BA).
CONCLUSIONS AND STAY ORDER
[91]
If it is
correct on the jurisdictional issue, the Corporation asks that I, as trial
judge, decline to hear the case on the merits, make certain declarations of
right, summarily dismiss this application and make any other order that the
Court may deem appropriate and fair.
[92]
In this
case, since I am rejecting the exclusive jurisdiction model proposed by the Corporation
and applying the concurrent jurisdiction model accepted by the Court, it seems
to me that, at this stage, the CRTC is in a better position than the Federal
Court to determine the dispute on its merits and to grant the applicants
appropriate relief, if applicable.
[93]
However, I note that the CRTC has thus far not wished to
inquire into the merits of the numerous complaints that have been brought to
its attention since the 2009 budget cuts and filed in the public record of the
Corporation’s licence renewal application. Furthermore,
I understand that the CRTC wants to have an overall picture before it makes a
decision on the specific recriminations of the OLMCs regarding regional and/or
local programming, including the programming broadcast by CBEF Windsor.
[94]
I also note that, in July 2009, the CRTC accepted the
Commissioner’s proposal that it perform an analysis on the impact of its
decisions on the OLMCs as part of its decision‑making process. As
a result, the CRTC announced that it intended to implement this practice
systematically in order to show that it is fulfilling its duties and to
demonstrate in its decisions that consideration was given to all of the
factors.
[95]
In my opinion, the applicants therefore have a legitimate
expectation to be heard and to express their point of view within the process
that has been initiated to have the Corporation’s licences renewed. The
applicants also have a legitimate expectation that the CRTC will conduct an
analysis of the impact on the OLMC of southwestern Ontario of its potential
decision to renew the licence of the radio programming undertaking operated by
the affiliated CBEF Windsor station. At that stage, it can be
assumed that the CRTC will pay particular attention to the Commissioner’s
findings in his final investigation report from June 2010 concerning the
negative impact of the 2009 budget cuts on the development of the OLMC of
southwestern Ontario.
[96]
Some
aspects of the Corporation’s application to renew its licences are completely
unprecedented, such as its new applications to have the licences for
Radio Two, Espace Musique and their affiliated stations amended to allow
national advertising to be broadcast. On May 18, 2012, the CRTC asked the
Corporation to submit an update of all of its applications by no later than
July 16, 2012, after which the Notice of Consultation formally announcing
the hearing and inviting the public to intervene would be released (letter from
John Traversy, Secretary General of the CRTC, to Hubert Lacroix, President and
Chief Executive Officer of the Corporation, dated May 18, 2012, and
entered in the CRTC’s public record).
[97]
However,
aside from the hearing to be held in Gatineau, Quebec, starting on
November 19, 2012, to hear the application to renew the Corporation’s
licences, the CRTC still, to this day, has not announced whether a public
hearing will subsequently be held in Windsor, nor has it made known other
special conditions for hearing the stakeholders, including the Commissioner,
Dr. Amellal and the members of the OLMC of southwestern Ontario.
[98]
At this
stage, it is not possible to predict the final outcome or the Corporation’s
arguments in response to the interventions of the applicants and the other
interested parties; moreover, the Corporation has until July 16, 2012, to bring
its applications up to date. It is still unknown whether, over a reduced licence term
(five years rather than seven), the Corporation will have the financial
capacity to fulfill all of its promises to meet its commitments, particularly
to the regions and the OLMCs, if it does not obtain all of the public funding
expected or if it is not authorized to engage in national advertising in
certain cases (Radio Two, Espace Musique).
[99]
Given the
current climate of uncertainty and the Court’s wish to spare the parties
additional or unnecessary costs by forcing them to engage in long and costly
legal proceedings having outcomes that are necessarily unknown, and rather than
summarily dismissing this application today, I am exercising my judicial
discretion. It seems to me that the fairest and most equitable course is to
order a stay of proceedings in this file while safeguarding the rights of the
parties.
[100]
As Madam
Justice Abella of the Supreme Court of Canada (writing on behalf of
Justices LeBel, Deschamps, Charron and Rothstein) emphasized in British
Columbia (Workers’ Compensation Board) v Figliola, [2011]
3 SCR 422, at
paragraph 1 [Figliola],
[l]itigants hope to
have their legal issues resolved as equitably and expeditiously as possible by
an authoritative adjudicator. Subject only to rights of review or appeal, they
expect, in the interests of fairness, to be able to rely on the outcome as
final and binding. What they do not expect is to have those same issues
relitigated by a different adjudicator in a different forum at the request of a
losing party seeking a different result. On the other hand, it may sometimes
be the case that justice demands fresh litigation.
[Emphasis
added]
[101]
Let us
simply recall that the final decisions and orders of the CRTC are subject to
appeal, on an issue of law or a question of jurisdiction, to the Federal Court
of Appeal—that is, on leave (subsection 31(2) of the BA)—such that the
“fairness” of the CRTC’s eventual decision on the merits “is not meant to be
bait for another tribunal with a concurrent mandate” (Figliola, above,
at paragraph 38).
[102]
Although
the Federal Court is not a “tribunal”, it is nonetheless the “Court” designated
by Parliament to hear a complaint made under Part X of the OLA. However, the
CRTC has made no decision as yet. To be
prudent, jurisdiction should therefore be reserved in the interim.
[103]
Consequently,
the interests of justice here require that the Court order a stay of
proceedings under subsection 50(1) of the FCA during the time for the CRTC
to make a decision, as part of the process to renew the Corporation’s licences,
on any complaint or intervention made in respect of the decrease in the number
of hours of local and/or regional programming broadcast by CBEF Windsor.
[104]
The
continuation of all examinations already scheduled and the hearing on the
merits set to begin on October 15, 2012, will therefore be adjourned sine
die. Once the CRTC has made its decision, it will be open to any
of the parties to ask the Court to extend or put an end to the stay of proceedings,
resume examining the record or dismiss this application, having consideration
for the applicable laws and all of the legal principles applicable in this
case.
[105]
If
appropriate, this Court could then determine whether the issue decided by the CRTC
is essentially the same as the one raised in this application and whether the
process followed by the CRTC (regardless of how closely it mirrors the
procedure of the designated Court under section 76 of the OLA) gave the
applicants the opportunity to present their case and make their arguments (Figliola,
above, at paragraph 37).
[106]
In the
interim, as judge in this case, I reserve jurisdiction to issue any other direction
or make any other order, on my own initiative or upon the application of a
party, in the event of any new developments.
[107]
Last, no
award of costs should be made to either party.
ORDER
THE COURT ORDERS that
1.
The proceedings in this
case are stayed to allow the CRTC to make its decision on the applications for
renewal of the Corporation’s licences and on any
complaint or intervention by the applicants in respect of the decrease in local
and/or regional programming hours broadcast by CBEF Windsor;
2.
The
continuation of any examinations already scheduled and the hearing on the
merits set to begin on October 15, 2012, are adjourned sine die;
3.
Once the
CRTC has made its decision regarding the applications for renewal of the
Corporation’s licences, it will be open to any of the parties, upon
application, to ask the Court to extend or put an end to the stay of
proceedings, to resume examining the record or to dismiss this application,
having consideration for the applicable laws and all of the legal principles
applicable in this case;
4.
In the
interim, the judge in this case reserves jurisdiction to issue any other direction
or make any other order, on his own initiative or upon the application of a
party, in the event of any new developments;
and
5.
Without costs.
“Luc Martineau”
Certified true
translation
Sarah Burns
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