Date: 20110414
Docket: 11-A-5
Citation: 2011 FCA 135
Present: EVANS J.A.
SHARLOW
J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
CKLN RADIO INCORPORATED
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Dealt with in writing without appearance
of parties.
Order delivered
at Ottawa, Ontario, on April 14, 2011.
REASONS
FOR ORDER BY: SHARLOW
J.A.
CONCURRED
IN BY: EVANS
J.A.
LAYDEN-STEVENSON
J.A.
Date: 20110414
Docket:
11-A-5
Citation: 2011 FCA 135
Present: EVANS
J.A.
SHARLOW
J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
CKLN RADIO INCORPORATED
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1]
On
January 28, 2011, the Canadian Radio-television and Telecommunications
Commission (the Commission) made an order revoking the broadcasting licence for
CKLN-FM Toronto, a community-based campus radio station that has operated on
the campus of Ryerson University
in Toronto since 1983.
The broadcasting licence was a renewal issued in 2007 to the applicant CKLN
Radio Incorporated for the period September 1, 2007 to August 31, 2014. CKLN
has applied under subsection 31(2) of the Broadcasting Act, S.C. 1991, c. 11, for leave to
appeal the Commission’s decision. For the following reasons, I would dismiss
the application for leave to appeal.
[2]
Subsection
31(2) reads as follows:
|
31. (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.
|
31.
(2) Les décisions et ordonnances du Conseil sont susceptibles d’appel, sur
une question de droit ou de compétence, devant la Cour d’appel fédérale.
L’exercice de cet appel est toutefois subordonné à l’autorisation de la cour,
la demande en ce sens devant être présentée dans le mois qui suit la prise de
la décision ou ordonnance attaquée ou dans le délai supplémentaire accordé
par la cour dans des circonstances particulières.
|
[3]
The
Commission’s decision has been stayed pending the disposition of this leave
application: CKLN Radio Incorporated v. Attorney General of Canada,
2011 FCA 56.
[4]
The
parties do not agree on the correct test for granting leave to appeal under
subsection 31(2) of the Broadcasting Act. CKLN relies on Canadian Broadcasting
Corp. v. Canadian Radio-television and Telecommunications Commission, [1999] F.C.J.
No. 1288 (F.C.A.). In granting leave to appeal in that case Justice Marceau,
speaking for this Court, said that “the grounds on which the appellant intends
to base its appeal – jurisdictional error and breached rules of natural justice
– are not as futile and frivolous as they would have to be to deny the
appellant an opportunity to argue them formally for lack of any reasonable
chance of success.”
[5]
The
Crown argues that the Canadian Broadcasting Corp. decision sets the bar
too low. The position of the Crown is that leave to appeal should be granted
only if the applicant for leave to appeal establishes that the decision sought
to be appealed is arguably based on an error on a question of law or
jurisdiction. That is the test applied by this Court in Rogers Cable
Communications Inc. v. Province of New Brunswick, 2007 FCA 168,
which determined an application under subsection 64(1) of the Transportation
Act, S.C. 1993, c. 38, for leave to appeal a telecommunications decision of
the Commission. The language of subsection 64(1) of the Telecommunications
Act
is
substantially the same as the language of subsection 31(2) of the Broadcasting
Act.
[6]
I
agree with the Crown that the test applied under the two statutes should be the
same and that the Rogers Cable decision states the correct test. Therefore, the question to be
considered by this Court is whether CKLN has established an arguable case that
the decision of the Commission revoking its broadcasting licence was based on
an error of law or jurisdiction.
[7]
In
its application for leave to appeal, CKLN proposed two grounds of appeal:
(a) whether the
Commission acted inconsistently with CKLN’s legitimate expectations and thereby
erred in law and jurisdiction by failing to follow its established procedures
and practice of “graduated discipline” before revoking CKLN’s broadcasting
licence, and
(b) whether the
Commission acted inconsistently with CKLN’s right to meaningful notice and full
and fair opportunity to be heard and thereby erred in law and jurisdiction by
first deeming the issue of “infighting” to be beyond the scope of inquiry and
then basing its decision upon certain allegations or evidence pertaining to the
very same subject matter.
[8]
These
grounds of appeal allege errors of law which, if made out, could result in the
quashing of the Commission’s decision. However, in my view, the record
presented by CKLN with its leave application does not disclose an arguable case
for either ground of appeal.
“K.
Sharlow”
“I
agree
John M. Evans”
“I
agree
Carolyn Layden-Stevenson”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: 11-A-5
STYLE OF CAUSE: CKLN
Radio Incorporated v. Attorney General of Canada
MOTION
DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW J.A.
CONCURRED IN BY: EVANS J.A.
LAYDEN-STEVENSON J.A.
DATED: April 14, 2011
WRITTEN
REPRESENTATIONS BY:
|
Y. Monica Song
Margot
Patterson
|
FOR
THE APPLICANT
|
|
John Syme
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Fraser Milner Casgrain LLP
Ottawa, Ontario
|
FOR
THE APPLICANT
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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