National Indian Brotherhood, Indian-Eskimo
Association, Union of Ontario Indians and
Canadian-Indian Centre of Toronto (Applicants)
v.
Pierre Juneau, H. J. Boyle, Mrs. P. Pearce, Hal
Dornan, R. Therrien, and Canadian Radio-
Television Commission (Respondents)
No. 2
Court of Appeal, Jackett C.J.—Toronto, June
21, 1971.
Jurisdiction—Motion to set aside decision of CRTC refus
ing public hearing of complaint against telecast—Decision
made before Federal Court Act proclaimed—Whether Court
of Appeal has jurisdiction—Federal Court Act, secs. 28,
52(a)—Federal Court Rule 1100—Broadcasting Act, 1967-
68 (Can.), c. 25, s. 19(2)(c).
On May 28, 1971, the Executive Committee of the
CRTC, not being satisfied that it would be in the public
interest to do so, decided not to hold a public hearing into a
complaint by four associations against the telecast of a film
alleged to be slanderous of Indians. On June 7 the four
associations applied to the Trial Division under s. 18 of the
Federal Court Act for writs of mandamus and certiorari to
compel a public hearing of their complaint under s. 19 (2)(c)
of the Broadcasting Act, 1967-68, c. 25. On the same day
applicants also applied to the Court of Appeal under s. 28 of
the Federal Court Act to set aside the CRTC order of May
28 for failure to observe the principles of natural justice,
etc.
The applicants moved for directions under Federal Court
Rule 1403 with respect to their application to the Federal
Court to set aside the CRTC order of May 28, 1971. The
application was heard by the Chief Justice.
Held, the motion for directions should be adjourned until
the Court of Appeal decided whether it had jurisdiction in
the matter in view of the terms of s. 61(1) of the Federal
Court Act by which the Court's jurisdiction to set aside
decisions is restricted to those made after the Act came into
force, viz June 1, 1971.
[Federal Court Act, 52(a) and Rule 1100 discussed].
MOTION for directions.
J. D. Kars wick for applicants.
No one for respondents.
JACKETT, C.J. (orally)—This is an application
for directions in connection with a proceeding
that commenced in this Court by a "Notice of
Application" filed on June 7, 1971.
That "Notice of Application" reads as
follows:
TAKE NOTICE of the application to the Court of Appeal
to review and set aside the decision or order of the Execu
tive Committee that the Canadian Radio-Television Com
mission made on May 28, 1971, on the grounds that the
Executive Committee and its individual members:
(a) failed to observe the principles of natural justice by
denying the Applicants the right to a fair hearing and the
protection of the law;
(b) erred in law by failing to permit the Applicants the
right to a hearing, the protection of the law, and misinter
preting and misapplying the provisions of the Broadcast
ing Act;
(c) based their decision on an erroneous finding of fact
by deciding that the CTV Television Network were will
ing to meet to discuss the programme, "The Taming of
the Canadian West".
AND TAKE NOTICE that the Applicants will request
the Court to decide this issue on such further and other
grounds as may be allowed.
The decision referred to in that application is
a decision of the Executive Committee of the
Canadian Radio-Television Commission that is
reflected in a "telex" message dated May 28,
1971, from Pierre Juneau, Chairman of that
Commission, to James D. Karswick, who is
solicitor for the applicants. That message reads
as follows:
ACCORDING TO WELL ESTABLISHED PRACTICE
AND TRADITION IN BROADCASTING IN CANADA,
THE LICENSEE OF A BROADCASTING UNDER
TAKING IS RESPONSIBLE FOR THE PRO
GRAMMES HE BROADCASTS. THIS POLICY IS
REITERATED IN SECTION 2 OF THE 1968 BROAD
CASTING ACT.
THE COMMISSION FIRMLY BELIEVES THAT THIS
POLICY IS OF VITAL IMPORTANCE TO THE
MAINTENANCE OF THE RIGHT TO FREEDOM OF
EXPRESSION IN THE CANADIAN BROADCASTING
SYSTEM. A DECISION TO SUSPEND THE BROAD
CAST OF A PROGRAMME OR TO CONDUCT AN
INVESTIGATION INTO A SINGLE PROGRAMME
SUCH AS THE TAMING OF THE CANADIAN WEST
IS A MOST SERIOUS ONE.
YOUR LETTER OF MAY 21, 1971 IS THE FIRST
NOTICE TO THE CRTC THAT YOU WISH THE
COMPLAINTS OF YOUR CLIENTS TO BE CONSID
ERED UNDER SECTION 19 OF THE BROADCAST
ING ACT AT A PUBLIC HEARING. IN LIGHT OF
THE MATTERS RAISED ABOVE, AND THE WILL
INGNESS EXPRESSED BY CTV TO MEET TO DIS
CUSS THE PROGRAMME, THE EXECUTIVE COM
MITTEE IS NOT SATISFIED THAT IT WOULD BE
IN THE PUBLIC INTEREST TO HOLD A HEARING
ON YOUR CLIENTS' COMPLAINT. THE COMMIS
SION HOPES THAT YOUR CLIENTS AND THE CTV
WILL PURSUE THIS MATTER AND THAT YOUR
CLIENTS WILL AVAIL THEMSELVES OF THE
OPPORTUNITY OFFERED TO THEM TO HAVE
ANY INACCURACIES IN THE PROGRAMME COR
RECTED OR SEEK OTHER SOLUTIONS WHICH
COULD RESOLVE THE DIFFERENCES. COPY OF
THIS TELEX SENT TO CTV.
It would appear from this that, by a letter
dated May 21, 1971, Mr. Karswick requested
that complaints of the applicants against a pro
gramme known as "The Taming of the Canadi-
an West" be considered by the Canadian Radio-
Television Commission at a public hearing
under s. 19(2) of the Broadcasting Act, 1967-68
(Can.), c. 25, which subsection reads, in part, as
follows:
19. (2) A public hearing shall be held by the Commission,
if the Executive Committee is satisfied that it would be in
the public interest to hold such a hearing, in connection with
* * *
(c) a complaint by a person with respect to any matter
within the powers of the Commission.
It also appears from the "telex" message of
May 28, 1971, that the Executive Committee
had not, at the time that that message was sent,
been "satisfied that it would be in the public
interest to hold a hearing" on the applicants'
complaints.
This conclusion by the Executive Committee
that it had not been satisfied that it would be in
the public interest for the Canadian Radio-
Television Commission to hold a hearing on the
applicants' complaints is what this Court is
being asked to review and set aside by the
"Notice of Application" filed on June 7 last.
That application is based on s. 28(1) of the
Federal Court Act, which reads as follows:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
While the matter that is before me today is an
application for directions under Rule 1403, the
effect of which would be to establish a pro
gramme for the section 28 proceeding, as there
is an obvious and grave doubt as to the Court's
jurisdiction in the matter, I am of the view that
I should not proceed with the application for
directions until the question of jurisdiction has
been determined.
Apart from any other problem concerning the
application of s. 28(1) in the circumstances of
this matter, the application is, on the face of it,
an application to set aside a "decision or order"
that was made on May 28, 1971, whereas s.
61(1) of the Federal Court Act provides, among
other things, that "Where this Act creates
. . . a right to apply to the Court of Appeal
under section 28 to have a decision or order
reviewed and set aside, such right applies,
in respect of a . . . decision or order
given or made after this Act comes into
force . . .", and the Federal Court Act was
brought into force by proclamation on June 1,
1971. It follows, in my opinion, that there is no
right under s. 28(1) to apply to have a "decision
or order" made on May 28, 1971, reviewed and
set aside and, therefore, that this Court has no
jurisdiction in the present matter.
For that reason, in my opinion, and on the
circumstances as I appreciate them at this
moment, this proceeding should be quashed
under s. 52(a) of the Federal Court Act, which
reads as follows:
52. The Court of Appeal may
(a) quash proceedings in cases brought before it in which
it has no jurisdiction or whenever such proceedings are
not taken in good faith . . .
However, before any judgment is given
quashing such a proceeding, Rule 1100 must be
invoked. That rule reads as follows:
RULE 1100. (1) An application to quash proceedings under
section 52(a) of the Act may be made at any time, but
failure to move promptly may, in the discretion of the
Court, be ground for a special order as to costs of the
motion and of the proceedings.
(2) The Court of Appeal may of its own motion make an
order under section 52(a) quashing proceedings after giving
the appellant and any other interested party an opportunity
to be heard.
In the circumstances, it would seem appropriate
to adjourn this application for directions pend
ing a determination of the question of jurisdic
tion. I should hope that, unless the application
is withdrawn, the respondents or the Deputy
Attorney General of Canada will make a motion
to quash, under Rule 1100(1), so as to raise the
matter of jurisdiction. If no such motion is
made within 10 days, and the application under
s. 28 is not withdrawn, having regard to s.
28(5), which imposes a duty on the Court to
hear and determine section 28 matters without
delay, I anticipate that the Court will issue a
direction, under Rule 1100(2), giving the parties
an opportunity to be heard on the jurisdiction
question. I further anticipate that the Court
would consist of three judges for any hearing
under Rule 1100.
That is all that I need to say to explain why I
have concluded that I should adjourn this
application for directions to be brought on again
by the applicant forthwith after such time, if
any, as the Court decides that it has jurisdiction
in the section 28 proceeding. I should not, how
ever, leave the matter without indicating that, in
my view, there are much more difficult ques
tions concerning the application of s. 28(1) than
the rather simple matter of the date of the
"decision or order".
Probably the most important question that
has to be decided concerning the application of
s. 28(1) is the question as to the meaning of the
words "decision or order". Clearly, those words
apply to the decision or order that emanates
from a tribunal in response to an application
that has been made to it for an exercise of its
powers after it has taken such steps as it
decides to take for the purpose of reaching a
conclusion as to what it ought to do in response
to the application. I should have thought, how
ever, that there is some doubt as to whether
those words—i.e., decision or order—apply to
the myriad of decisions or orders that the tribu
nal must make in the course of the decision-
making process. I have in mind decisions such
as
(a) decisions as to dates of hearings,
(b) decisions on requests for adjournments,
(c) decisions concerning the order in which
parties will be heard,
(d) decisions concerning admissibility of
evidence,
(e) decisions on objections to questions to
witnesses, and
(f) decisions on whether it will permit written
or oral arguments.
Any of such decisions may well be a part of the
picture in an attack made on the ultimate deci
sion of the tribunal on the ground that there was
not a fair hearing. If, however, an interested
party has a right to come to this Court under s.
28 on the occasion of every such decision, it
would seem that an instrument for delay and
frustration has been put in the hands of parties
who are reluctant to have a tribunal exercise its
jurisdiction, which is quite inconsistent with the
spirit of s. 28(5). A similar question arises
where a tribunal proceeds by stages in reaching
a conclusion on the ultimate matter that it has
to decide (compare Smith Kline & French Inter-
American Corp. v. Micro Chemicals Ltd [1968]
1 Ex.C.R. 326, at pages 326 to 330), and I have
doubts that s. 28(1) authorizes an application in
such a case before the ultimate decision is
reached. I also have doubts as to whether a
refusal by a tribunal to entertain an application
or its decision to embark on an inquiry is a
decision that falls within s. 28(1). It may well be
that, in respect of such matters, the dividing line
falls between decisions of a tribunal before it
embarks, and completes, its processing of a
matter, where a party must proceed by one of
the old Crown writ proceedings and build a case
upon which the Court may decide whether he is
entitled to relief, and decisions based on a case
which has been made before the tribunal, where
the Court of Appeal may base its decision on
what was or was not done before the tribunal.
I do not pretend to have formulated any view
as to what the words "decision or order" mean
in the context of s. 28(1), but it does seem to
me that what is meant is the ultimate decision
or order taken or made by the tribunal under its
statute and not the myriad of incidental orders
or decisions that must be made in the process of
getting to the ultimate disposition of a matter.
Another question that must be decided in
some cases, and it seems to me that it may be
raised by this application, is whether a particu
lar decision or order is outside the ambit of s.
28(1) because it is a "decision or order of an
administrative nature not required by law to be
made on a judicial or quasi-judicial basis". A
typical example of such a decision or order is a
decision or order made by a minister in the
process of carrying out his statutory function of
managing his department. There is a question in
my mind, having regard to the way s. 19 of the
Broadcasting Act is formulated, as to whether
that section is not making the question as to
whether a particular complaint should be dealt
with by "public hearing" or in some other way
that complies with basic principles, one of abso
lute unconditional discretion for the Executive
Committee.
It must be understood that I am expressing no
opinion on these questions but I am raising
them so that counsel will be prepared to assist
the Court on them when they arise in a particu
lar matter.
It perhaps would not be inappropriate for me
to say that I have had drawn to my attention a
decision of Walsh J. [See National Indian
Brotherhood et al. v. Juneau et al., immediately
preceding this case—Ed.] concerning an
application, in connection with this same
matter, under s. 18 of the Federal Court Act,
and that, in my view, a judge of the Trial
Division should not feel any reluctance to
decide a question concerning the jurisdiction of
the Court of Appeal when that question is inci
dental to determining the jurisdiction of the
Trial Division. He has just as much right to
decide such a question when it arises before
him as the Court of Appeal has when it arises in
this Court.
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.