Docket: A-457-15
Citation:
2016 FCA 275
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CORAM:
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DAWSON J.A.
NEAR J.A.
WOODS J.A.
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BETWEEN:
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ABORIGINAL
VOICES RADIO INC.
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Appellant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT
DAWSON J.A.
[1]
In Broadcasting Decision CRTC 2015-282 the
Canadian Radio-television and Telecommunications Commission revoked the
broadcasting licenses for the Type B Native radio stations CKAV-FM Toronto,
CKAV-FM-2 Vancouver, CKAV-FM-3 Calgary, CKAV-FM-4 Edmonton and CKAV-FM-9 Ottawa
held by Aboriginal Voices Radio Inc. This is an appeal from the decision of the
Commission. This appeal proceeds pursuant to the Court’s order of August 21,
2015 granting leave to appeal the decision.
[2]
The appeal was set for hearing on November 8,
2016, by order dated August 16, 2016. Thereafter, by order dated October 3,
2016, counsel for Aboriginal Voices was permitted to withdraw. On November 4,
2016, the Chairman of Aboriginal Voices wrote to the Court asking for an
adjournment of the hearing. The letter advised that counsel for Aboriginal
Voices had resigned due to its “inability to fully pay
their fees at this time.” The adjournment was requested on the basis
that Aboriginal Voices “is currently underway with a
fundraising effort for legal fees, which we feel will be successful given more
time.”
[3]
At the commencement of the hearing on November
8, 2016, the Chairman of Aboriginal Voices made oral submissions in support of
the requested adjournment. The Attorney General opposed this request and filed
affidavit evidence. After hearing counsel for the Attorney General and the
Chairman of Aboriginal Voices in reply, we briefly reserved our decision. After
considering the request for an adjournment, we advised the parties that the
adjournment was denied for reasons to be delivered later. Those reasons follow.
[4]
First, the jurisprudence is to the effect that
parties with a fixed hearing date will receive an adjournment only in
exceptional circumstances.
[5]
Second, the adjournment was sought for an
unlimited period on the basis of an unspecified fundraising effort to raise
funds for legal fees. This is of particular concern in circumstances when the
Commission in the decision under review noted that Aboriginal Voices’ financial
viability had been of recurring concern to the Commission (reasons, at
paragraph 63) and found a new business plan submitted by Aboriginal Voices “does not include the type and level of detail necessary to
convince the Commission of its viability” (reasons, at paragraph 67).
[6]
Most importantly, in the decision under review,
the Commission noted the “pressing need to serve the
Aboriginal community as a whole given that issues vitally important to
Aboriginal Canadians are not fully covered or addressed at all in non-Native
media.” Thus, the Commission indicated that as a matter of priority it
intended to “issue a call for applications and hold a
hearing to license new services that would fulfill this mandate”
(reasons, at paragraph 86).
[7]
Thereafter, by order dated August 21, 2015, this
Court stayed the decision of the Commission revoking the licenses on terms that
the parties strictly adhere to the timelines set out in the Federal Courts Rules.
[8]
The evidence tendered by the Attorney General is
not challenged by Aboriginal Voices. It is to the effect that:
i.
Aboriginal Voices’ radio stations in Ottawa,
Calgary and Edmonton are not currently broadcasting.
ii.
While Aboriginal Voices’ station in Toronto is
operational, the station in Vancouver is only intermittently active.
iii.
While acknowledging this Court’s order staying
its decision, the Commission has issued a call for applications for services.
iv.
The Commission has received twelve proposals
from five organizations to operate radio stations serving indigenous
communities in Vancouver, Calgary, Edmonton, Toronto and Ottawa.
v.
These applications will not be considered until
this Court makes a final determination of this appeal.
[9]
In these circumstances, we were satisfied the
interests of justice did not favour granting the requested adjournment.
[10]
After advising the parties that the adjournment
would not be granted, we offered Aboriginal Voices the opportunity to address
oral submissions to us, or the opportunity to have the appeal decided on the
basis of the memoranda of fact and law filed by counsel for the parties.
Aboriginal Voices selected the second alternative.
[11]
I therefore turn to the merits of the appeal on
the basis of the written record.
[12]
On this appeal Aboriginal Voices asserts a
number of errors on the part of the Commission. For the following reasons I am
of the view that the Commission did not err as alleged.
[13]
To begin, contrary to the submission of
Aboriginal Voices, the Commission adequately considered the extent to which the
Commission’s Native Radio Policy affected Aboriginal Voices. Thus, at paragraph
58 of its reasons, the Commission acknowledged the licensee’s argument based on
“the constraints associated with having to operate as a
not-for-profit organization pursuant to the Native Radio Policy”. After
acknowledging this argument the Commission went on to reject it, noting that
Aboriginal Voices Radio “was not allocating sufficient
resources to vital elements such as programming and sales and marketing”:
59. Similar explanations were provided
by the licensee at each of the previous three renewal hearings. In the last
renewal decision, the Commission specifically stated that it was concerned that
AVR was not allocating sufficient resources to vital elements such as
programming and sales and marketing, adding that it considered that an
effective allocation of AVR’s limited resources would be critical if it was to
overcome its financial challenges.
60. Notwithstanding these admonitions,
in the current licence term AVR laid off almost all of its sales and
programming staff in 2014. Of the remaining five staff members, four were
executives. By its own admission, these remaining staff members were focused on
larger questions of financial viability rather than ensuring regulatory
compliance. As a case in point, in explaining how AVR could be unaware that its
stations in Edmonton and Calgary had gone off-air, the licensee stated: “We
weren’t necessarily focused on, you know, monitoring the station every day simply
because we did not have the personnel to do that and we were trying to
reinvigorate AVR as an operation.”
[14]
Moreover, the Commission was not required to
deal more comprehensively with this submission because during the hearing
Aboriginal Voices abandoned its request to be exempted from the Native Radio
Policy. Aboriginal Voices clarified to the Commission that its business plan
was not contingent on receiving such an exemption (see paragraph 93 of the CRTC
hearing transcript).
[15]
Next, Aboriginal Voices argues that the
Commission failed to fairly and adequately consider the proposed business plan it
presented.
[16]
This submission is without merit. At paragraph
15 of its decision the Commission noted that at the outset of the hearing it
had stated its intent to consider, among other things, “the
viability of [Aboriginal Voices Radio’s] business plan”. Thereafter at
paragraphs 66 to 68 and at paragraph 73 the Commission wrote:
66. It is only at the end of the day
on 8 May 2015, five days before the hearing, that AVR detailed its strategy to
increase revenues in the event of a renewal. The business plan stated that all
funding for AVR’s operations would come from advertising revenues. The
necessary increase in advertising revenues was predicated on an increase in
tuning, which the licensee submitted would be made possible through the
implementation of two strategies to improve its position in the radio markets
it serves, namely converting to the soft adult contemporary format and offering
“advertiser-oriented-content, i.e. content that stands on its own as compelling
content and also serves the marketing needs of the clients.”
67. While supported by a consulting
group with extensive experience, this plan did not include the type and level
of detail necessary to convince the Commission of its viability. In particular,
the Commission finds that the financial projections filed as part of AVR’s
business plan are untenable given AVR’s historical financial performance.
Moreover, the projected increase in revenues is dependent on an increase in tuning,
but little market research or quantitative evidence was provided to substantiate
the projected increase in tuning.
68. More fundamentally, however, the
plan was still a plan. At the hearing, AVR spoke of the types of advertisers it
planned to approach, as well as the type of advertising spots (primarily
advertiser-oriented content) that it intended to pursue. However, AVR could not
provide concrete examples of advertisers who had agreed to purchase advertising
time on the stations. In fact, AVR stated that it had not yet put together
presentations to approach advertisers because of the uncertainty surrounding
its licensing status. In its description of its business plan, AVR consistently
used expressions such as “developing”, “being put into place”, “relatively new”
and “putting together.”
…
73. Moreover, AVR’s attitude during
this renewal process does not provide the Commission with confidence that the
licensee understands or can deliver on its mandate as a Native Type B radio
station with a focus on serving the Aboriginal communities in its urban
markets. For example, Bray’s business plan proposed to remove the word
Aboriginal from the branding of the stations and to focus on a soft adult
contemporary music format with a target audience aged 35-64 and a female skew.
While AVR argued that this format works well with the Aboriginal music and
cultural programming it broadcasts, it is telling that its stated target
audience is female rather than Aboriginal.
[17]
Aboriginal Voices next argues that the
Commission considered an irrelevant factor in reaching its decision: the
Commission’s interpretation of what constitutes programming of “direct and particular relevance to the Aboriginal community”.
[18]
Again, I respectfully disagree. At paragraph 42
of its decision the Commission made reference to evidence from a representative
of the Canadian Association of Aboriginal Broadcasters as to what constitutes
content “of direct and particular relevance” to
urban Aboriginal communities. This evidence is consistent with Aboriginal
Voices’ license application in respect of its Edmonton station in which it
stated that “[n]ews stories selection will focus on
events which impact Canada’s urban Aboriginal communities that have been
overlooked and under reported by other news sources”. Implicit in the
reasons of the Commission is the acceptance of this evidence.
[19]
In any event, at paragraph 43 of its reasons,
the Commission noted that even if one accepted the position of Aboriginal
Voices with respect to what constitutes a news story of direct and particular
relevance to the Aboriginal community, Aboriginal Voices did not air five
distinct local news stories on May 29, 2014 as required by a condition of its
license. At the end of the day the Commission was not satisfied that Aboriginal
Voices had demonstrated that it provided a uniquely Aboriginal viewpoint and
reported stories of direct and particular relevance to Aboriginal Canadians
(reasons, at paragraph 44).
[20]
Aboriginal Voices also argues that the
Commission breached its duty of procedural fairness by departing from Aboriginal
Voices’ legitimate expectation that the Commission would follow its practice of
graduated escalation of regulatory measures. However, the doctrine of
legitimate expectations relates to procedural entitlements in administrative
decision-making. It does not provide substantive relief.
[21]
Paragraph 9(1)(e) of the Broadcasting
Act, S.C. 1991, c. 11 grants broad authority to the Commission to “suspend or revoke any license”. The doctrine of
legitimate expectations cannot act to fetter or restrict the power conferred on
the Commission to revoke a broadcasting license.
[22]
Finally, Aboriginal Voices submits that the
Commission failed to provide adequate reasons why all five licenses were
revoked. Again, I reject this contention. Each of the radio stations operated
by Aboriginal Voices were found to be noncompliant with the following license
conditions:
i.
The obligation to file program logs and logger
tapes pursuant to subsections 8(4) and 8(6) of the Radio Regulations, 1986
(Regulations) (reasons, at paragraphs 22-26);
ii.
The obligation to file annual returns pursuant
to subsection 9(2) of the Regulations (reasons, at paragraphs 27-30);
iii.
The obligation to respond to requests for
information from the Commission regarding Aboriginal Voices’ adherence to the
conditions of its license, the Broadcasting Act, and the Regulations as
required by paragraph 9(4)(b) of the Regulations (reasons, at paragraphs
31-35);
iv.
The obligation to file annual updates setting
out how Aboriginal Voices was achieving its business objectives for each market
as required by condition of license 9 (reasons, at paragraphs 46-50); and,
v.
The obligation to file audited financial
statements for each of the five radio stations operated by Aboriginal Voices as
required by condition of license 10 (reasons, at paragraph 51-57).
[23]
It follows that I would dismiss the appeal with
costs.
“Eleanor R. Dawson”
“I agree
D.G. Near J.A.”
“I agree
Judith M. Woods
J.A.”
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