Date:
20080213
Docket: A-578-06
Citation: 2008 FCA 55
CORAM: RICHARD
C.J.
DESJARDINS
J.A.
PELLETIER
J.A.
BETWEEN:
MICHEL MATHIEU,
broadcasting consultant
Appellant
and
THE ATTORNEY GENERAL OF CANADA,
for the CRTC (Canadian Radio Television and
Telecommunications Commission)
Respondent
CANADA 3553230 INC., CJMS RADIO
Respondent
REASONS FOR JUDGMENT
DESJARDINS J.A.
[1] The
appellant is appealing a decision by the Canadian Radio Television and
Telecommunications Commission (CRTC), namely decision CRTC 2006-352 of August 10, 2006 on the
renewal from September 1, 2006 to August 31,
2008
of the broadcasting licence of the French-language commercial radio programming
undertaking CJMS Saint-Constant.
[2]
Station
CJMS went on the air in early May 1999 and operated under CRTC licence
1998-0456-01-2005, which was in effect from August 3, 1999 to August 31, 2005.
At the time the licence was issued, station CJMS had not obtained the
broadcasting certificate mentioned in section 22 of the Broadcasting Act,
S.C. 1991, c. 11. A technical certificate, obtained or to be issued, is
essential for the validity of a broadcasting licence, as indicated by
subsections 22(1) and (4) of the Broadcasting Act, which read as
follows:
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LICENCES
Conditions governing issue, amendment and renewal
22. (1) No licence
shall be issued, amended or renewed under this Part
(a)
if the issue, amendment or renewal of the licence is in contravention of a
direction to the Commission issued by the Governor in Council under
subsection 26(1); and
(b)
subject to subsection (2), unless the Minister of Industry certifies to the
Commission that the applicant for the issue, amendment or renewal of the
licence
(i)
has satisfied the requirements of the Radiocommunication Act and the
regulations made under that Act, and
(ii)
has been or will be issued a broadcasting certificate with respect to the
radio apparatus that the applicant would be entitled to operate under the
licence.
|
LICENCES
Interdictions
relatives aux licences
22. (1) Il est
interdit d’attribuer, de modifier ou de renouveler, dans le cadre de la
présente partie, une licence soit en contravention avec les instructions
données par le gouverneur en conseil en application du paragraphe 26(1), soit
— sous réserve du paragraphe (2) — avant que le ministre de l’Industrie ait
certifié au Conseil que le demandeur, d’une part, a satisfait aux exigences
de la Loi sur la radiocommunication et de ses règlements d’application,
d’autre part, a obtenu ou obtiendra un certificat de radiodiffusion à l’égard
de l’appareil en cause.
|
|
…
|
…
|
|
Issue, etc., contravening this section
(4)
Any licence issued, amended or renewed in contravention of this section is of
no force or effect.
|
Contravention
: sanction
(4)
Les licences attribuées, modifiées ou renouvelées en contravention avec le
présent article sont sans effet.
|
|
[Emphasis
added.]
|
[Je
souligne.]
|
[3] On June 18,
2004, the CRTC notified Canada 3553230 Inc., operating station CJMS, that the
radio station was operating without the broadcasting certificate and that
section 22 of the Act provided that the CRTC could not renew a licence until
the certificate had been issued. The letter stated that if 3553230 Canada Inc.
intended to proceed with renewal of the CJMS licence, it had to indicate to the
CRTC the corrective measures taken to deal with the situation and make possible
the issuing of a broadcasting certificate by the Minister of Industry.
[4] In its
decision CRTC 2005-229-1 on June 1, 2005, the CRTC administratively renewed
CJMS’s licence for the period from September 1,
2005
to April 30, 2006. On November 4, 2005, the Minister of
Industry issued the technical certificate. There was subsequently a second
administrative renewal by the CRTC for the period from May 1 to August 31,
2006. Then, after a public hearing, the CRTC renewed CJMS’s licence for the
period for September
1, 2006
to August 31, 2008 (CRTC decision 2006-352).
[5] The
appellant is asking the Court to [TRANSLATION] “rule that the six-year delay between
the issuing of a licence and a certificate of technical compliance is
unreasonable”. He further asks the Court to set aside CRTC decision 2006-352,
dated August
10, 2006.
[6] The
appellant obtained leave to appeal this CRTC decision by an order of this Court
dated October 19, 2006.
[7] In
support of his conclusions, the appellant argued that the first licence,
1998-0456-01-2005, was void, the two renewals subsequently given were also void
and the third decision, the licence renewal of August 10,
2006,
was also void.
[8]
It
appears from the scheme put in place by the Act and the applicable precedents
that a broadcasting licence is the privilege of using a limited public
resource, namely a radio frequency, to the exclusion of anyone else and for a
specific time. The awarding of such a licence is within the CRTC’s discretion (Canadian
Broadcasting Corporation v. Métromédia CMR Montréal Inc., [1999] F.C.J. No. 1637,
para. 2 (QL), and Genex Communications Inc. v. Canada (Attorney General),
2005 FCA 283, [2005] F.C.J. No. 1440, para. 54 (QL)). According to the very
language of the Act (paragraph 9(1)(b)), a licence is temporary.
Further, it confers no vested right or other ownership right on its holder, any
more than it confers a right to its renewal (New Brunswick Broadcasting Co. v.
CRTC, [1984] 2 F.C. 410, p. 16). The only right enjoyed by the holder of a
licence that has not been revoked or suspended during the course of its
application is to apply for a renewal: Confederation Broadcasting (Ottawa) Limited v.
C.R.T.C.,
[1971] S.C.R. 906, para. 62. At the conclusion of a renewal procedure, it is
always possible that a licence will not be renewed.
[9] The
first licence was in effect from August 3, 1999 to August 31,
2005.
The first administrative renewal covered the period from September 1, 2005 to April 30, 2006. The
technical certificate was issued on November 4, 2005, during the period covered
by the first administrative renewal. At the time of renewal of the second
administrative renewal from May 1 to August 31,
2006,
and at the time of renewal of the CJMS licence on August 10, 2006, the
technical certificate had already been issued.
[10]
There
is no basis for intervening in this matter. The CRTC decision of August 10, 2006 is
consistent with subsections 22(1) and (4) of the Act. As the earlier licences
have expired, they have no effect on CRTC decision 2006-352 of August 10, 2006.
[11]
I
would dismiss the appeal with costs.
“Alice
Desjardins”
I
concur.
J. Richard C.J.
I
concur.
J.D.
Denis Pelletier J.A.
Certified
true translation
Brian
McCordick, Translator
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