Date: 19991223
Docket: A-333-99
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
ANDRÉ ARTHUR,
Plaintiff,
AND:
ATTORNEY GENERAL OF CANADA,
Defendant.
Hearing held at Montréal, Quebec, Tuesday, November 23, 1999
Order made at Ottawa, Ontario, Thursday, December 23, 1999
REASONS FOR ORDER BY: LÉTOURNEAU J.A.
CONCURRED IN BY: DÉCARY J.A.
NOËL J.A.
Date: 19991223
Docket: A-333-99
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
ANDRÉ ARTHUR,
Plaintiff,
AND:
ATTORNEY GENERAL OF CANADA,
Defendant.
REASONS FOR ORDER
LÉTOURNEAU J.A.
[1] The plaintiff is a radio program host, with specific experience in hosting open-line programs dealing with current affairs which are often controversial. He is challenging by judicial review a decision of the Canadian Radio Television and Telecommunications Commission ("the CRTC") on the ground that that decision caused him serious harm, attached unjustified blame to him which injured his reputation, infringed his freedom of speech and limited his right to work, and finally, was taken in his absence and without his being given an opportunity to be heard. He sought the following conclusions:
[TRANSLATION]
| (a) LIMIT CRTC decision 99-93 so that no blame, criticism, complaint or any form of negative comment appears therein respecting the plaintiff; |
| (b) CANCEL the licensing condition regarding the revised version of the CKVL Internal Ethics and Policy Guide, as approved by the CRTC; |
| (c) DECLARE null and void s. 3(b) and (c) of the Radio Regulations, 1986, SOR/86-982, amended by SOR/91-586; |
| (d) DECLARE null and void s. 3(1)(g) of the Broadcasting Act; |
| (e) DECLARE null and void CRTC public notice 1988-213, "Policy Regarding Open-Line Programming"; |
| (f) THE WHOLE with costs. |
[2] The defendant responded by asking the Court to strike the proceeding initiated by the plaintiff. He alleged, first, that the plaintiff"s action has become moot and futile since he is no longer working for the licensee, CKVL, concerning whom the CRTC decision regarding renewal of the licence was rendered. Second, he argued that the plaintiff has a right of appeal under s. 31 of the Broadcasting Act (S.C. 1991, c. 11), and judicial review based on s. 28 of the Federal Court Act is thus not the proper procedure in the circumstances.
[3] I will deal with these two questions in the order mentioned above. I should add at once that at this preliminary stage we are not concerned with the merits of the case, or if you like, the merits of the application for judicial review. I will therefore mention a number of facts alleged by the plaintiff which appear to me to be necessary to dispose of the motion to strike, but without
ruling on their validity and the consequences that flow from them for the application for judicial review as such.
Whether plaintiff"s action futile
[4] An action is moot if the decision of the court before which it comes will not have the effect of resolving an issue which has or may have consequences for the rights of the parties: Borowski v. Canada, [1989] 1 S.C.R. 342. There must therefore be a specific legal issue or dispute.
[5] Based on these principles, it seems clear that the defendant is right regarding the second conclusion sought by the plaintiff. Since October 21, 1999 the latter has no longer been employed by CKVL and the Internal Ethics and Policy Guide of his former employer no longer governs his activities as a program host. The dispute which this guide, imposed by the CRTC, gave rise to between himself and his employer has therefore ceased to exist. However, the situation is not so clear regarding the other conclusions sought and requires some comment.
[6] Paragraphs (c), (d) and (e) of the application seek a ruling of invalidity on legislative and regulatory provisions and on a "Policy Regarding Open-Line Programming" which, in the plaintiff"s submission, are contrary to the Charter of Human Rights and Freedoms in that they infringe his freedom of speech, and in particular, his freedom to express political opinions that may displease, injure, offend or shock.
[7] Paragraphs 3(b) and (c) of the Radio Regulations, 1986, SOR/86-982, adopted by the CRTC and amended by SOR/91-586, impose on a licensee, and thereby on its employees for whom it is responsible (see public notice CRTC 1988-213, Policy Regarding Open-Line Programming), a prohibition from broadcasting obscene or blasphemous language or offensive statements which may expose a person or group of persons to hatred or ridicule.
[8] Section 3(1)(g) of the Broadcasting Act states, in relation to the definition of the Canadian broadcasting policy, that programming originated by broadcasting undertakings should be of a high standard.
[9] In this connection, the documentation supplied by the plaintiff and his counsel"s argument did not greatly assist the Court in clarifying the actual basis of the request for a ruling of invalidity. I assume that, to the plaintiff, this legislation creates a vague and imprecise standard and that its application by the proper authorities not only encourages arbitrary action but also allows them to censor the statements made and hence freedom of opinion and expression.
[10] As regards public notice CRTC 1988-213, Policy Regarding Open-Line Programming, the plaintiff argued that this notice infringed his freedom of speech since it allowed the CRTC, in the process of renewing a licensee"s licence, to arbitrarily impose conditions affecting specific
situations and individuals so as to censor their statements.
[11] I admit that the connection between the plaintiff"s allegations and the legal conclusion sought by him, which they are supposed to support, is not always entirely clear. Prima facie the rulings of invalidity which the plaintiff is seeking by conclusion (c), (d) and (e) of his application for judicial review do not appear to be related to CRTC decision CRTC 99-93, and in fact are of a kind which may be sought by themselves, that is, independently of that decision. However, in such a case I do not think, at least for conclusion (d), that it could be obtained by the procedure laid down in s. 28, since the application for judicial review mentioned in s. 28(c) must involve a federal board, commission or other tribunal, here the CRTC, whereas it is directed against parliamentary legislation.
[12] Further, in so far as these conclusions can and should in fact be related to the CRTC decision, they should relate to the subject-matter of the dispute on which the decision is based, namely the renewal of the CKVL licence and the imposition of a condition on that licence. As the plaintiff is no longer employed by CKVL and is not seeking either the quashing of the CRTC decision or a re-hearing on the matter, I consider that in the circumstances this part of the application, identified by conclusions (c), (d) and (e), is futile. Indeed, it appears that the only real remedy sought by the plaintiff is the deletion from the decision by the CRTC of the statements about him which he regards as unfair and unjustified as they were made in his absence. This therefore leads me to the final conclusion sought by the plaintiff, that of limiting the CRTC decision so that it contains no criticism of him.
[13] On this point, the plaintiff challenged the CRTC decision because the latter had not observed the audi alteram partem rule. He criticized the CRTC for hearing the complaints by persons about him without asking him to respond to them or even to appear and make his opinion known on the matter. In paragraph 6 of his affidavit in support of his application, the plaintiff went further. He even alleged that his employer offered to let its employee participate in the public hearing but the CRTC not only refused but asked the employer to ensure that its employee did not participate in the said hearing.
[14] He also referred to the Notice of Public Hearing CRTC 1998-7, issued by the CRTC on October 2, 1998, which informed his former employer CKVL that the CRTC intended to discuss the submissions received and complaints appearing in the CKVL file, and mentioned the possibility of imposing as a licensing condition compliance by the licensee with the Policy Regarding Open-Line Programming contained in the CRTC public notice of December 23, 1998 (CRTC 1988-213). The plaintiff did not deny that he was aware of this notice of public hearing and noted that it indicates that "only the interventions already received, accepted and filed on the public file will be considered by the Commission". He alleged that at the time he learned of the content of the public hearings which could affect him, he had already been excluded from the proceeding.
[15] For the moment, there is no rebuttal to this evidence. Moreover, the plaintiff alleged that CRTC decision 99-93 indicated prima facie that both in its reasons and its conclusions the CRTC made a ruling on the validity of the complaints about him and criticized him severely and the criticism is still causing him harm. This he said explains his undoubted interest in challenging the CRTC decision.
[16] It should not be forgotten that the Court has before it a motion to summarily dismiss an application for judicial review and that the defendant has not argued that the application is frivolous and has no chance of success. This type of motion is and must remain a very exceptional proceeding in a judicial review situation : David Bull Laboratories v. Pharmacia Inc., [1995] 1 F.C. 588, at 600 (F.C.A.).
[17] At this stage of the proceedings, based on the evidence before the Court, it is not possible to conclude that the issue is futile so far as conclusion (a) is concerned and that the plaintiff does not have the interest required by s. 18.1 of the Federal Court Act to challenge this CRTC decision. I must therefore now consider whether an application for judicial review is the proper procedure.
Whether plaintiff"s action proper procedure
[18] Section 28(1)(c) of the Federal Court Act recognizes the Federal Court of Appeal"s jurisdiction to hear and determine applications for judicial review made in respect of the CRTC. However, s. 18.5 of that Act prohibits use of such a procedure to challenge a decision or order of a federal board, commission or other tribunal when the latter may be appealed.
| 18.5 Dérogation aux art. 18 et 18.1 " Par dérogation aux articles 18 et 18.1, lorsqu"une loi fédérale prévoit expressément qu"il peut être interjeté appel, devant la Cour fédérale, la Cour suprême du Canada, la Cour d"appel de la cour martiale, la Cour canadienne de l"impôt, le gouverneur en conseil ou le Conseil du Trésor, d"une décision ou d"une ordonnance d"un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d"un tel appel, faire l"objet de contrôle, de restriction, de prohibition, d"évocation, d"annulation ni d"aucune autre intervention, sauf en conformité avec cette loi.
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18.5 Exception to sections 18 and 18.1 " Notwithstanding sections 18 and 18.1, where provision is expressly made by an Act of Parliament for an appeal as such to the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to the Governor in Council or to the Treasury Board from a decision or order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.
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| [19] Section 31 of the Broadcasting Act, the defendant submitted, confers a right of appeal on any question of jurisdiction or law: |
| 31(1) Caractère définitif
31.(1) Sauf exceptions prévues par la présente partie, les décisions et ordonnances du Conseil sont définitives et sans appel.
31(2) Cas d"appel: Cour fédérale
(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 subordonnée à l"autorisation de la cour, la demande en ce sens devant être présentée dans le mois qui suit la prise de la décision ou ordonnance attaquée ou dans le délai supplémentaire accordé par la cour dans des circonstances particulières.
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| 31(1) Decisions and orders final
31. (1) Except as provided in this Part, every decision and order of the Commission is final and conclusive.
31(2) Appeal to Federal Court of Appeal
(2) An appeal lies from a decision or order of the Commission to the Federal Court of Appeal on a question of law or a question of jurisdiction if leave therefor is obtained from that Court on application made within one month after the making of the decision or order sought to be appealed from or within such further time as that Court under special circumstances allows.
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[20] Further, this right of appeal provides an opportunity to review points of fact or breaches of the rules of natural justice. He cited in support the judgments of this Court in Leroux v. Transcanada Pipelines Ltd. (1996), 198 N.R. 316, which adopted the rule stated in Cathay International Television v. Canada (1987), 80 N.R. 117. I will return to these two judgments and consider their application.
[21] The defendant further referred to the judgment by this Court in Canadian Broadcasting League v. CRTC [No. 2], [1980] 1 F.C. 393, where at 405 and 406 Le Dain J. concluded that the right of appeal conferred in respect of CRTC decisions should be regarded as an extension of the right of any member of the public to have access to CRTC hearings and make representations at them. He regarded this as the recognition of a right enjoyed by all individuals, even where they have no interest in acting. With respect, I do not think that decision has the meaning attributed to it by the defendant.
[22] To begin with, Rogers Telecommunications Ltd., to which the CRTC had refused to allow transfer of the effective control of certain broadcasting undertakings, objected to the application for leave to appeal by the Canadian Broadcasting League ("CBL") on the ground that it had no pecuniary or proprietary interest in appealing and that, as in John Graham Company Ltd. v. Canadian Radio Television Commission , [1976] 2 F.C. 82, it had to show that it was aggrieved by the decision because its interests were or might be prejudicially affected by the decision. After noting that the application in Graham was an application for judicial review under s. 28 of the Federal Court Act, in which the plaintiff had to show it was directly affected by the decision, Le Dain J. simply refused to import or to apply to an application for leave to appeal under the Broadcasting Act the stricter requirement of interest mentioned expressly in the Federal Court Act, as the provision conferring the right of appeal did not mention such a limitation and contained no definition of the interest necessary to file an appeal.
[23] Secondly, the CBL was an intervener before the CRTC and made submissions. Le Dain J. concluded from this that it had a sufficient interest in appealing, since under the Broadcasting Act of the time, and this is still the case, the CBL was a party to the proceedings because of the very definition of "party", which so far as a CRTC hearing is concerned refers to the applicant and any intervener. The statement on which the defendant based his argument and his objection to the plaintiff"s action was obviously made obiter .
[24] The plaintiff, for his part, cited two judgments of this Court in support of his argument that his application for judicial review is the proper proceeding: Telecommunications Workers Union v. Canada, [1993] 1 F.C. 231 (F.C.A.) and Union of Nova Scotia Indians et al. v. Maritimes and Northeast Pipeline Management Ltd. et al., [1999] F.C.A. No. 242 (F.C.A.).
[25] In Telecommunications Workers Union the plaintiff was not recognized as a party to the proceedings before the CRTC and was denied leave to appeal the CRTC decision. This Court concluded that in such circumstances s. 18.5 of the Federal Court Act did not have the effect of preventing it from appealing by judicial review. This judgment was followed in Union of Nova Scotia Indians, in which this Court accepted the applicants" undisputed statement that they did not have a right of appeal from the decision rendered, on that occasion, by the National Energy Board because they were not parties to the hearing before that Board. In those circumstances, the Court said that in its opinion s. 18.5 was not a bar to their application for judicial review.
[26] These two judgments support the proposition that a person directly affected by the decision of a federal board, commission or other tribunal, rendered at the conclusion of proceedings to which it was not a party, and thus a person who has no right of appeal, may use judicial review to challenge the legality of that decision. They are in no way inconsistent with Leroux and Cathy International Television Inc., supra, which deal not with the existence of a right to appeal and the interest necessary in order to appeal, but rather with the scope of the right of appeal of someone who has such a right. However I would add, before going on to analyse those two judgments, that someone who could have been an intervener before the CRTC but did not do so might well be denied, if he or she wished to file an application for judicial review, the status of a person "directly affected". Section 18.5 cannot be designed to give a second chance to someone who did not use the first one. Accordingly, not just anyone has the status of a person "directly affected": to see this we need only read the judgment of this Court in Canadian Motion Picture Distributors Association et al. v. Partners of Viewer"s Choice Canada et al. (1996), 199 N.R. 167 (F.C.A.), where it was held that the plaintiffs, who could have participated in the CRTC hearings but chose not to do so, did not have the necessary interest to file an application for judicial review as they had no contractual link in film distribution with the persons who were granted a licence by the CRTC.
[27] In Cathay International Television Inc. it is clear that this company, who had a condition imposed on its licence, was a party to the proceedings before the CRTC and enjoyed a right of appeal. It was simpler and obviously more practical to consider all its grievances through the appeal procedure rather than splitting them up into two proceedings (appeal and judicial review) and then joining the two proceedings, hearing them and summarily deciding them, as the applicant suggested in reliance on earlier practice and precedent (see pp. 5 and 6 of the judgment and Aly Abdel Hafez Aly v. Min. of Manpower and Immigration, [1971] F.C. 540 (F.A.C.)).
[28] In Leroux, the applicants Leroux and 417 Auto Wreckers Ltd. challenged a decision by the National Energy Board and did so both by an application for judicial review and by a motion for leave to appeal. The reasons alleged by the applicant were the same in both proceedings. In keeping with the effort made to simplify procedure and avoid duplication, the Court concluded that the right of appeal had a sufficiently broad scope to encompass review of points of fact or infringement of the rules of natural justice, which were formerly dealt with in proceedings for judicial review.
[29] In the case at bar the plaintiff was not a party to the proceedings before the CRTC and did not have a right of appeal from the decision. In view of Telecommunications Workers Union and Union of Nova Scotia Indians, supra, it is impossible to say at this stage that he cannot use the judicial review proceeding to challenge the CRTC decision in the aspects of that decision which affect him.
[30] The plaintiff expressed his frustration and a certain resentment at the debate about procedure with which he was confronted, resulting from the priority given to the appeal proceeding in the event that more than one remedy exists. However, s. 28 of the Federal Court Act performs an important function. It plays a supplemental role in cases where a person whose rights are affected is excluded from the existing appeal procedure. It also plays a necessary part when, for example, a party wishes in the course of a proceeding to prevent the Court making a decision or exercising jurisdiction which it does not have. If the plaintiff had enjoyed the right of appeal, and so had mistakenly used the wrong proceeding in making an application for a judicial review, I would have referred to and applied the remedial provisions of s. 57 of our Rules (Federal Court Rules (1998)), which requires the Court not to set aside an originating document only on the ground that a different originating document should have been used. The plaintiff acted promptly in using his remedy and I would have changed his application for judicial review to an application for leave to appeal.
[31] In conclusion, I consider that the motion to strike made by the defendant should be dismissed and the application for judicial review allowed to take its normal course solely on the following point : was there in the case at bar an infringement of the rules of procedural fairness, and if so, should the CRTC decision be altered to ensure that it contains no blame, criticism, complaint or any other form of negative comment about Mr. Arthur? Accordingly, any document, part thereof or allegation of fact or law dealing with any other matter shall be deleted from the record already filed by the plaintiff.
[32] I would authorize the defendant to file its affidavits within thirty days of this order.
[33] I would allow Mr. Arthur costs on this motion, which in the circumstances and solely for the purposes of determining the costs, I would treat as an appeal within the meaning of ss. 16 to 22 of Tariff B.
I concur.
Robert Décary J.A.
I concur.
Marc Noël J.A.
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: André Arthur v. Attorney General of Canada |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: November 23, 1999 |
| REASONS FOR ORDER BY: Létourneau J.A. |
| CONCURRING REASONS BY: Décary J.A. |
Noël J.A.
APPEARANCES:
| Daniel O"Brien FOR THE PLAINTIFF |
| Linda Mercier FOR THE DEFENDANT |
SOLICITORS OF RECORD:
| O"Brien, Attorneys (Québec) FOR THE PLAINTIFF |
| Morris Rosenberg FOR THE DEFENDANT |
Deputy Attorney General of Canada
Date: 19991223
Docket: A-333-99
OTTAWA, ONTARIO, THURSDAY, DECEMBER 23, 1999
LÉTOURNEAU J.A.
NOËL J.A.
Between:
ANDRÉ ARTHUR,
Plaintiff,
- and -
ATTORNEY GENERAL OF CANADA,
Defendant.
ORDER
The motion to strike is dismissed.
The application for judicial review will proceed on the following point only:
was there in the case at bar an infringement of the rules of procedural fairness, and if so, should the CRTC decision be amended to ensure that it contains no blame, criticism, complaint or any other form of negative comment about Mr. Arthur? Any document, part thereof or allegation of fact or law dealing with any other matter shall be deleted from the record already filed by the plaintiff.
The defendant may file his affidavits within thirty days of the date of this order.
Mr. Arthur will be entitled to costs on this motion, which shall be treated solely for the purposes of determining those costs as an appeal within the meaning of ss. 16 to 22 of Tariff B.
Certified true translation
Bernard Olivier, LL. B.
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