Canadian Association of Broadcasters v. Canada, 2007 FCA 233

Date: 20070613

Dockets: A-591-06

A-17-07

A-590-06

A-18-07

 

Citation: 2007 FCA 233

 

Present:          NOËL J.A.

 

BETWEEN:

A-591-06 and A-17-07

CANADIAN ASSOCIATION OF BROADCASTERS (THE APPELLANT ASSOCIATION), GROUP TVA INC., CTV TELEVISION INC., THE SPORTS NETWORK INC., 2953285 INC. (o.b.a. DISCOVERY CHANNEL CANADA), LE RÉSEAU DES SPORTS (RDS) INC., THE COMEDY NETWORK INC., 1163031 ONTARIO INC. (o.b.a. OUTDOOR LIFE NETWORK), CANWEST MEDIAWORKS INC., GLOBAL TELEVISION NETWORK QUEBEC LIMITED PARTNERSHIP, PRIME TV, GENERAL PARTNERSHIP, CHUM LIMITED, CHUM OTTAWA INC., CHUM TELEVISION VANCOUVER INC. and PULSE24 GENERAL PARTNERSHIP (THE CORPORATE APPELLANTS)

 

Appellants

and

HER MAJESTY THE QUEEN

Respondent

 

 

AND BETWEEN:

A-590-06 and A-18-07

 

VIDÉOTRON LTÉE, VIDÉOTRON (RÉGIONAL) LTÉE,

and CF CABLE TV INC. (VIDEOTRON APPELLANTS)

 

Appellants

and

HER MAJESTY THE QUEEN

 

Respondent

 

Dealt with in writing without appearance of parties.

 

Order delivered at Ottawa, Ontario, on June 13, 2007.

 

REASONS FOR ORDER BY:                                                                                           NOËL J.A.

 

Date: 20070613

Dockets: A-591-06

A-17-07

A-590-06

A-18-07

 

Citation: 2007 FCA 233

 

Present:          NOËL J.A.

 

BETWEEN:

A-591-06 and A-17-07

CANADIAN ASSOCIATION OF BROADCASTERS (THE APPELLANT ASSOCIATION), GROUP TVA INC., CTV TELEVISION INC., THE SPORTS NETWORK INC., 2953285 INC. (o.b.a. DISCOVERY CHANNEL CANADA), LE RÉSEAU DES SPORTS (RDS) INC., THE COMEDY NETWORK INC., 1163031 ONTARIO INC. (o.b.a. OUTDOOR LIFE NETWORK), CANWEST MEDIAWORKS INC., GLOBAL TELEVISION NETWORK QUEBEC LIMITED PARTNERSHIP, PRIME TV, GENERAL PARTNERSHIP, CHUM LIMITED, CHUM OTTAWA INC., CHUM TELEVISION VANCOUVER INC. and PULSE24 GENERAL PARTNERSHIP (THE CORPORATE APPELLANTS)

 

Appellants

and

HER MAJESTY THE QUEEN

Respondent

 

 

AND BETWEEN:

A-590-06 and A-18-07

 

VIDÉOTRON LTÉE, VIDÉOTRON (RÉGIONAL) LTÉE,

and CF CABLE TV INC. (VIDEOTRON APPELLANTS)

 

Appellants

and

HER MAJESTY THE QUEEN

 

Respondent

 

 

REASONS FOR ORDER

NOËL J.A.

[1]               These are motions by two groups of feepayers under the Broadcasting Licence Fee Regulations, 1997, SOR/97-144 (“the Regulations”) – Bell ExpressVu Inc., Rogers Cable Communications Inc., Cogeco Cable Canada Inc. and Cogeco Cable Quebec Inc. on the one hand and Shaw Communications Inc., Star Choice Television Networks Inc. and Shaw Satellite Services Inc. on the other – who seek leave to intervene in the consolidated appeals from a decision of Shore J. dated December 14, 2006.

 

[2]               By this decision, Shore J. held that Part II Licence Fees collected pursuant to section 11 of the Regulations are, in fact and in law, a tax.  Consequently, he declared such fees to be ultra vires the authority conferred on the Canadian Radio-television and Telecommunications Commission (the “CRTC”) by section 11 of the Broadcasting Act.  However, he went on to hold that money paid under legislation later found to be invalid is not recoverable and therefore declined to issue a declaration that the appellants are entitled to the recovery of the Part II Licence Fees they had paid.

 

[3]               By their respective appeals, the appellants challenge this refusal as well as Shore J’s decision to suspend the declaration of invalidity for a six month period.  The respondent, Her Majesty the Queen, has cross-appealed seeking to set aside Shore J.’s declaration that the Part II Licence Fees are a tax; and that section 11 of the Regulations is ultra vires.

 

[4]               The proposed interveners are feepayers under the Scheme which was ruled to be invalid by the decision under appeal.  They maintain that as a result of the recent decision of the Supreme Court in Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1 (QL) (“Kingstreet”), they have a direct interest in the outcome of the proceedings on appeal.  They refer in particular to the following passage in Kingstreet (at para. 55):

 

There is a second concern which arises in cases where monies have been paid to public authorities pursuant to unconstitutional legislation or as a result of the misapplication of an otherwise valid law. In Eurig, for example, payment under protest and the commencement of legal proceedings was held to be sufficient to trigger the exception allowing recovery. The end result is that whenever a tax is declared ultra vires, only the successful litigants will be granted recovery of the unconstitutional charges. All other similarly situated persons will not benefit from the Court’s holding. This raises concerns about horizontal equity that are similar to those raised by the doctrine of constitutional exemption. This Court has alluded to such concerns in Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13, and in Miron v. Trudel, [1995] 2 S.C.R. 418. In my view, constitutional law should apply fairly and evenly, so that all similarly situated persons are treated the same.  [Emphasis added]

 

 

[5]               The proposed interveners seek, as two separate groups, leave to make representations in order to insure that their interests, as “similarly situated persons”, are properly represented.  They seek to intervene with respect to this issue on terms that each be allowed to produce a 30 page memorandum and make oral submissions for a 60 minute period.

 

[6]               The Crown opposes the motions.  The appellants consent, subject to the proviso that the combined time for oral submissions by the proposed interveners be limited to 60 minutes.

 

DECISION

[7]               I am satisfied that, as similarly situated persons, the proposed interveners have a direct interest in the outcome of the proceedings before this Court.  The Crown acknowledges as much but nevertheless opposes the motions based on its view that what is being sought by the proposed interveners is, in effect, a joinder of parties with the view of obtaining restitution of the fees they have paid as non-party feepayers.  According to the Crown, the issue of reimbursement at large or with respect to individual non-party feepayers is a new one with respect to which no evidence was led at trial since it was never raised.  Counsel points out for instance that limitations period continue to apply.  Raising the issue of reimbursement at this stage, Counsel argues, would be highly prejudicial.

 

[8]               In response, the proposed interveners argue in separate submissions that the Crown has fundamentally mischaracterized the relief which they seek.  They do not seek to participate as parties or add new evidence to the existing record.  Indeed, they acknowledge that separate actions may be required in each case to obtain reimbursement.  They submit that their concern at this stage is with respect to the law that would apply to any such action given the decision of the Supreme Court in Kingstreet.

 

[9]               I am satisfied that the proposed interventions, so understood and so limited, will cause no prejudice to the Crown.  I am also satisfied that it could be useful for the panel members hearing the appeals to have the perspective of the proposed interveners given that their decision may affect the rights of non-party feepayers.

 

[10]           The only other basis for resisting the interventions is the assertion by the Crown that the Canadian Association of Broadcasters (the “CAB”), as a party appellant, is in as good a position as the proposed interveners to advance arguments relating to similarly situated persons.

 

[11]           However, the CAB itself appears to be of the view that the proposed interveners do bring a different perspective since it has consented to the proposed intervention.  In this respect, I note that the CAB has already filed its Factum and has not addressed the aspects of Kingstreet relating to similarly situated non-party feepayers.  Based on the existing record, it cannot be said that the CAB will adequately advance the interests of the proposed interveners.

 

[12]           Finally, no objection has been raised with respect to the fact that the proposed interveners wish to advance their argument as two separate groups.

 

[13]           Leave to intervene will therefore be granted on the issue of “horizontal equity” and the treatment of “similarly situated persons” arising from the decision of the Supreme Court in Kingstreet.  Because the two groups of interveners will be advocating essentially the same position, albeit in the perspective of their respective group, a 20 page memorandum in each case appears sufficient.  In the same vein, oral presentations of 30 minutes for each group as suggested by the appellants seem sufficient subject to the discretion of the panel hearing the appeals to vary this allocation.

 

[14]           An order is issued accordingly.

 

“Marc Noël”

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKETS:                                                    A-591-06 and A-17-07

                                                                        And A-590-06 and A-18-07

 

 

STYLE OF CAUSE:                                      A-591-06 and A-17-07

CANADIAN ASSOCIATION OF BROADCASTERS (THE APPELLANT ASSOCIATION), GROUP TVA INC., CTV TELEVISION INC., THE SPORTS NETWORK INC., 2953285 INC. (o.b.a. DISCOVERY CHANNEL CANADA), LE RÉSEAU DES SPORTS (RDS) INC., THE COMEDY NETWORK INC., 1163031 ONTARIO INC. (o.b.a. OUTDOOR LIFE NETWORK), CANWEST MEDIAWORKS INC., GLOBAL TELEVISION NETWORK QUEBEC LIMITED PARTNERSHIP, PRIME TV, GENERAL PARTNERSHIP, CHUM LIMITED, CHUM OTTAWA INC., CHUM TELEVISION VANCOUVER INC. and PULSE24 GENERAL PARTNERSHIP (THE CORPORATE APPELLANTS) and HER MAJESTY THE QUEEN

                                   AND

A-590-06 and A-18-07

VIDEOTRON LTÉE, VIDÉOTRON (RÉGIONAL) LTÉE, and CF CABLE TV INC. (VIDEOTRON APPELLANTS) and HER MAJESTY THE QUEEN

 

 

 

MOTIONS DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

 

 

REASONS FOR ORDER BY:                                             NOËL J.A.

 

DATED:                                                                                 June 13, 2007

WRITTEN REPRESENTATIONS BY:

 

 

Barbara A. McIsaac, Q.C. R. Benjamin Mills Howard R. Fohr	FOR THE APPELLANTS The Canadian Association of Broadcasters (A-591-06 & A-17-07)
Daniel Urbas Carl Souquet	FOR THE APPELLANTS Vidéotron Ltée et al. (A-590-06 & A-18-07)
F.B. (Rick) Woyiwada R Jeff Anderson	FOR THE RESPONDENT (A-591-06 & A-17-07)
Francisco Couto Alexander Pless	FOR THE RESPONDENT (A-590-06 & A-18-07)
Neil Finkelstein (LSUC #21640K) Catherine Beagan Flood (LSUC #43013U) Simon Heeney (LSUC #51529R)	FOR THE INTERVENERS Bell ExpressVu Inc., Rogers Cable Communications Inc., Cogeco Cable Canada Inc. and Cogeco Cable Quebec Inc.
Charles F. Scott Michael J. Sims	FOR THE INTERVENERS Shaw Communications Inc., Star Choice Television Networks Inc. and Shaw Satellite Services Inc.

 

SOLICITORS OF RECORD:

 

McCARTHY TÉTRAULT LLP Ottawa, Ontario

FOR THE APPELLANTS The Canadian Association of Broadcasters et al. (A-591-06 & A-17-07)

 

BORDEN LADNER GERVAIS srl/LLP Montréal, Quebec	FOR THE APPELLANTS Vidéotron Ltée et al. (A-590-06 & A-18-07)
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Ottawa, Ontario	FOR THE RESPONDENT (A-591-06 & A-17-07)
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Montréal, Quebec	FOR THE RESPONDENT (A-590-06 & A-18-07)
BLAKE, CASSELS & GRAYDON LLP Toronto, Ontario	FOR THE INTERVENERS Bell ExpressVu Inc., Rogers Cable Communications Inc., Cogeco Cable Canada Inc. and Cogeco Cable Quebec Inc.
LAX O’SULLIVAN SCOTT LLP Toronto, Ontario	FOR THE INTERVENERS Shaw Communications Inc., Star Choice Television Networks Inc. and Shaw Satellite Services Inc.