Acadian Cable T. V. Ltd. (Plaintiff)
v.
Canadian Radio-Television Commission, the
Attorney General of Canada, and Robert W.
Oxner (Defendants)
Trial Division, Kerr J.—Saint John, N.B.,
November 23; Ottawa, December 4, 1972.
Practice—Parties—Jurisdiction—Objection to Court's
jurisdiction—Whether one defendant proper party—Federal
Court Rule 401.
Plaintiff operated a cablevision system, distributing pro
grams received from Calais, Maine, to subscribers in St.
Stephen, N.B. In October 1971 Oxner, an employee of the
CRTC, on the CRTC's instructions laid an information
charging plaintiff with carrying on a broadcasting undertak
ing contrary to section 29(3) of the Broadcasting Act,
R.S.C. 1970, c. B-11. The CRTC also cut off plaintiff's
cable. Plaintiff brought this action against the CRTC,
Oxner, and the Attorney General of Canada, claiming a
declaration that plaintiff was not a broadcasting undertaking
within the meaning of the Broadcasting Act, and also for an
injunction and damages.
Held, dismissing an objection by Oxner to the jurisdiction
of the Court, the action should not be terminated against
Oxner before trial.
MOTION.
T. L. McGloan for plaintiff.
John Turnbull for defendants.
KERR J.—The defendant Robert W. Oxner
filed a conditional appearance in this action on
October 10, 1972, for the expressed purpose of
objecting to the jurisdiction of the Court.
The Court's Rule 401 provides that a defend
ant may, by leave of the Court, file a condition
al appearance for the purpose of objecting to
the jurisdiction of the Court and that an order
granting such leave shall make provision for
any stay of proceedings necessary to allow such
objection to be raised and disposed of.
On October 19, 1972, Heald J. heard an
application on behalf of the said defendant for
an order to ratify the filing of the conditional
appearance previously filed on October 10 and
for an order staying the action against the said
defendant to allow the objection to the jurisdic-
tion of the Court to be raised and disposed of
and setting a time and place for the hearing of
such objection. Thereupon an order was grant
ed giving leave to the said defendant to file a
conditional appearance for the purpose of
objecting to the jurisdiction of the Court pursu
ant to Rule 401(c), and staying the action
against him pending the determination of the
question of the jurisdiction of the Court, and
further directing that the question be heard on
November 23, at Fredericton. By a subsequent
order Saint John was substituted for Frederic-
ton. It was also subsequently determined that
the defendant Oxner would give viva voce tes
timony at the hearing of the question of juris
diction. No new conditional appearance was
filed, but for the purposes of the hearing of the
question of jurisdiction the conditional appear
ance filed on October 10 was treated as filed
with leave of the Court.
It will be helpful, before dealing with the
question of jurisdiction, to indicate generally
the nature of the action and the relief claimed
by the plaintiff. The statement of claim alleges
that the plaintiff operates a closed circuit T.V.
distribution system in the Town of St. Stephen,
N.B., which distributes signals from Calais,
Maine, by cable to subscribers of the plaintiff in
St. Stephen and Milltown, N.B.; that the com
pany does not engage in radio communication
within the terms of the Broadcasting Act,
R.S.C. 1970, c. B-11, and that it is not a broad
casting undertaking within the terms of that
Act; that the defendant Canadian Radio-Televi
sion Commission caused a prosecution to be
commenced against the company on an infor
mation sworn to on October 25, 1971, by the
defendant Robert W. Oxner, an employee of the
said Commission, charging the plaintiff with
carrying on a broadcasting undertaking in viola
tion of section 29(3) of the Broadcasting Act;
that the plaintiff, not being a broadcasting
undertaking within the terms of that Act, does
not require a licence from the Commission to
carry on its operation; that the Commission
interfered with the plaintiff's operation by caus
ing or instructing to be cut the plaintiff's cable,
thereby shutting off the plaintiff's distribution
system; and that such actions prejudiced
negotiations now underway for the acquisition
by the plaintiff of a broadcasting undertaking
operating in St. Stephen and Milltown, and
make it impossible for the plaintiff to plan its
future strategy with respect to such negotia
tions. And the plaintiff claims, inter alia:
(a) a declaration that it is not a broadcasting
undertaking within the terms of the Broad
casting Act and that it is not required to
obtain a licence from the Commission in
order to carry on its present distribution
system in St. Stephen and Milltown;
(b) an injunction restraining the Commission,
its officers, servants, agents and employees
from proceeding against the plaintiff or from
counselling, aiding, assisting and instructing
any other persons from proceeding against
the plaintiff for the carrying on of its under
taking without a licence from the
Commission;
(c) damages for trespass and damage to the
plaintiff's property and interference with its
operation.
At the time of the hearing of the question of
the Court's jurisdiction in respect of the defend
ant Oxner the plaintiff's counsel indicated that
paragraph 15(b) of the statement of claim is
being amended to claim also an injunction
against interference in any way with the plain
tiff's operations in St. Stephen and Milltown
and in the State of Maine.
The defendant Commission has filed a
defence in which it states, inter alia, that the
plaintiff together with certain other named com
panies, acting together operate in St. Stephen
and Milltown and in Calais, Maine, the business
commonly known as a cable television business,
that such business comprises a broadcasting
receiving undertaking within the meaning of the
Broadcasting Act, and that the Commission has
not issued a broadcasting licence to the plaintiff
nor exempted the plaintiff from carrying on a
broadcasting receiving undertaking pursuant to
the Broadcasting Act; and the Commission
admits that it caused the prosecution alleged in
the statement of claim to be commenced against
the plaintiff. At the hearing Mr. Turnbull
appeared as counsel for Mr. Oxner. Mr.
McGloan appeared for the plaintiff. The Attor
ney General of Canada was not represented, but
has filed a defence.
Mr. Oxner testified that he is Superintendent,
Atlantic Region, Applications and Licensing
Division, Licensing Policy Branch, of the Com
mission, and that under the direction of the
Chief of that Division he identifies broadcasters
and broadcasting interests to determine areas
requiring broadcasting services and to stimulate
interest; he coordinates applications for public
hearings under the Broadcasting Act, makes
recommendations to the Commission on various
proposals, and advises applicants for licences as
to procedures in submitting applications. He
said that he is not involved in decision making,
he had nothing to do with the cutting of the
plaintiff's cable, he laid the information against
the plaintiff, referred to in the statement of
claim, on instructions of the Commission's Gen
eral Counsel, and in October 1971 he laid an
information to obtain a search warrant against
the plaintiff and used it to enter the plaintiff's
premises; in laying the informations he was
acting as a servant of the Commission; he is
employed in the public service of Canada in the
Commission, and the chain of command is from
the Commission to its Director General, to the
Chief of the Applications and Licensing Divi
sion, and thence down to Oxner. He also said
that most of the contacts between the plaintiff
and the Commission were with him, Oxner.
The only references to the defendant Oxner
in the statement of claim are in paragraph 10
that he is an employee of the Commission and
in paragraph 11, which reads as follows:
11. That the said Commission did cause a prosecution to
be commenced against the said Plaintiff and officers on an
Information sworn to by the said Robert W. Oxner on the
25th day of October, A.D. 1971 before Judge Douglas C.
Rice, Judge of the Provincial Court of New Brunswick for
the County of Charlotte, charging the said Plaintiff with
acting together with its officers in carrying on a broadcast-
ing undertaking in violation of Sub-section 3 of Section 29
of The Broadcasting Act.
The only other act on the part of any of the
defendants that is alleged in the statement of
claim is what is set forth in paragraph 13 as
follows:
13. That on or about the 21st day of July, A.D. 1972 the
said Commission did interfere with the Plaintiff's operation
by causing or instructing to be cut the Plaintiff's cable at the
Town of St. Stephen thereby shutting off the Plaintiff's
distribution system, which said cable was subsequently
repaired by the Plaintiff.
Paragraph 14 states that "such actions" pre
judiced the negotiations, etc., as set forth in that
paragraph; and paragraph 15 states that the
plaintiff therefore claims the relief asked for in
that paragraph.
Oxner is an officer or employee appointed
pursuant to section 10 of the Broadcasting Act,
which provides for appointment in accordance
with the Public Service Employment Act, and
the Commission is named in Schedule I to the
Public Service Staff Relations Act, R.S.C. 1970,
c. P-35, under the heading:
Departments and other portions of the public service of
Canada in respect of which Her Majesty as represented by
the Treasury Board is the employer
Canadian Radio-Television Commission
As I understand the plaintiff's action against
the defendant Oxner it is seeking relief against
him by name on the basis that he did something
in the performance of his duties as an officer or
servant of the Crown on the staff of the Com
mission, and that this Court has jurisdiction in
the action against him individually by virtue of
section 17(4)(b) of the Federal Court Act, which
reads as follows:
17. (4) The Trial Division has concurrent original
jurisdiction
(b) in proceedings in which relief is sought against any
person for anything done or omitted to be done in the
performance of his duties as an officer or servant of the
Crown.
As indicated above the only act of the
defendant Oxner alleged in the statement of
claim is that he laid the information charging
the plaintiff with carrying on a broadcasting
undertaking in violation of section 29(3) of the
Broadcasting Act. The laying of the information
was the commencement of proceedings now
before the court in New Brunswick. As regards
the declaration and injunction sought by the
plaintiff, this Court has jurisdiction under sec
tion 18 of the Federal Court Act to issue an
injunction and grant declaratory relief against
any federal board, commission or other tribu
nal, as defined in section 2 of that Act, and in
this action the plaintiff has made the Commis
sion and the Attorney General of Canada
defendants, presumably for the purpose of
obtaining a remedy available under the said
section 18.
I do not find any allegation of tort or action
able wrong on the part of Oxner, but I do not
think that an allegation or proof of tort or
actionable wrong on his part is a prerequisite to
the granting of the relief, or some of the relief,
sought against him in this action, particularly
relief by way of a declaratory judgment.
It is not inconceivable that in this action the
Court in the exercise of a judicial discretion
might grant a declaration of the sort claimed,
and, if persuaded that the Commission lacks
authority over the plaintiff's undertaking,
restrain or prohibit the Commission and its
officers and servants from exercising or
attempting to exercise a jurisdiction over the
plaintiff that the Commission does not possess 1 .
Although it seems to me that the principal
issue is between the plaintiff and the Commis
sion, rather than between the plaintiff and
Oxner, and that that issue could have been
raised and be resolved without making Oxner a
defendant, nevertheless he played a part in the
current prosecution of the plaintiff by laying the
information in the course of his duties and I am
not prepared to find that in this action the Court
is without jurisdiction to grant any of the relief
sought against him, and in my opinion it would
not be right to terminate the action against him
at this stage simply on the objection made to
the jurisdiction of the Court.
Therefore the objection on behalf of Oxner to
the jurisdiction of the Court will not be allowed.
The plaintiff will have its costs against Oxner,
which I assume will be paid for him by his
employer because what Oxner did was done in
the course of his employment and in accord
ance with directions given to him.
I See the Reasons for Judgment of the Federal Court of
Appeal in CRTC v. Teleprompter Cable Communications
Co., [1972] F.C. 1265, which has some features in common
with this action.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.