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T-328-76
In re the Broadcasting Act and in re Capital Cable Co-operative and the Canadian Radio-Television Commission and Victoria Cablevision Limited
Trial Division, Dubé J.—Vancouver, February 2, 1976.
Broadcasting—Prerogative writs—Application for man- damus to compel CRTC to hear applicant's application for a cable television licence—Whether CRTC practice of hearing licence renewal application first and other applicants only if renewal refused is contrary to law and natural justice— Broadcasting Act, R.S.C. 1970, c. B-11, ss. 3, 15, 17, 19, 21— CRTC Rules of Procedure 3, 4, 13.
The licence of Victoria Cablevision was due to expire March 31, 1976, and applicant applied for a licence to serve the same area. The CRTC advised that it is not its practice to accept applications where a licence has been granted and is about to expire, but to hold a public hearing to determine whether the licence should be renewed. If it should decide against renewal, it would then call for other applications. Applicants meanwhile may intervene at the renewal hearing. Applicant seeks man- damus to compel the CRTC to hear its application, alleging that this practice is contrary to law and natural justice.
Held, granting the application, the Commission is ordered to hear the application of Capital before renewing the licence of Victoria. While it is more serious to deny the right to apply for renewal to a licence holder than to refuse a hearing to another applicant, neither has a vested right in the licence, and both have a right to be heard. The CRTC has a duty to hear the applicant. Possibly the added competition would assist the CRTC in achieving the objectives enunciated in section 3 of the Broadcasting Act. To decide without hearing is contrary to basic principles of natural justice, and, while it is fair to grant priority to the present holder, it is no less important that other applicants be allowed to offer alternatives. Higher standards are bound to result.
Confederation Broadcasting (Ottawa) Limited v. Canadi- an Radio-Television Commission [1971] S.C.R. 906, applied.
APPLICATION. COUNSEL:
D. S. Lisson for applicant.
B. W. F. McLoughlin, Q.C., for respondent
CRTC.
A. McEachern for respondent Victoria
Cablevision Limited.
SOLICITORS:
Lisson, McConnan, Bion & O'Connor, Vic- toria, for applicant.
Lawrence & Shaw, Vancouver, for respondent CRTC.
Russell & DuMoulin, Vancouver, for
respondent Victoria Cablevision Limited.
The following are the reasons for order deliv ered orally in English by
DURÉ J.: This is an application for a writ of mandamus to order the Canadian Radio-Televi sion Commission (hereinafter the CRTC) to hear the application of the applicant for a cable televi sion licence to serve the Greater Victoria area on the grounds that the practice of the CRTC to hear only an application to renew a licence, along with interventions, and then hear other applications for the said licence only if the application to renew is refused is contrary to law and the rules of natural justice.
Because of the urgency of the matter (the renewal application is to be heard on February 6, 1976) and my own limitation of time, I will try to be brief and, hopefully, to the point.
Victoria Cablevision Ltd. (hereinafter "Vic- toria") is the holder of a valid and subsisting licence to operate â broadcasting receiving under taking for a cable television service in the Greater Victoria area due to expire on March 31, 1976. Victoria has applied for renewal and the CRTC has set February 5, 1976 as the date of the hearing at Victoria, B.C.
By affidavit it alleges it has complied in all respects with the terms of its present licence.
The applicant is a non-profit communications organization for the benefit of the people of the Greater Victoria region. In pursuance of its objec tives it has filed an application for the cable licence to serve the said area on October 31, 1975. In response the CRTC has advised by letter that it is its practice not to accept applications where a licence has been granted and is about to expire but
to hold a public hearing to determine whether the licence should be renewed. If it should decide not to renew the licence, then it would call for applica tions from other interested parties. Meanwhile applicants may file an intervention in opposition to that renewal.
The applicant prays for an order under section 18 of the Federal Court Act to issue a writ of mandamus against the CRTC to hear its application.
The grant of a writ of mandamus is a matter for the discretion of the court. It is not a writ of right and it is not issued as a matter of course. It will be granted to the end that justice be done in cases where there is a specific legal right and no other remedy.
The applicant for a writ of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought. Moreover, the subject matter of the writ must be clear and the act sought must be a duty imperative and not discretionary. The court should apply the remedy when an important fundamental right has been taken away without words of the legislature expressly or by necessary intendment doing so.
So duty, and the refusal to perform it are two essential ingredients to a successful application for a writ of mandamus. The basic issue here is whether the CRTC has a duty to hear the applica tion of the applicant before renewing the licence of Victoria, it being admitted that it refuses so to do.
Section 3 of the Broadcasting Act enunciates the objectives of the broadcasting policy for Canada and states that these objectives can best be achieved by providing for regulation and supervi sion of the Canadian broadcasting system by a single independent public authority, i.e. the CRTC. The subsections declare that radio fre quencies are public property, that the Canadian broadcasting system should be effectively owned and controlled by Canadians so as to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada; that all Canadians are entitled to broadcasting service in English and French as public funds become available; that the
regulation and supervision of the Canadian broad casting system should be flexible, etc.
Section 15 provides that the CRTC shall regu late and supervise all aspects with a view to imple menting the broadcasting policy enunciated in sec tion 3, (supra).
Section 17 describes the powers exercisable by the CRTC, namely to issue broadcasting licences for such terms not exceeding five years and to issue renewals for such terms not exceeding five years.
Under section 19 a public hearing shall be held by the CRTC in connection with the issue of a licence; and also the renewal of a licence, unless the CRTC is satisfied that such a hearing is not required in the latter case.
Section 21 authorizes the Commission to make rules. Rule 3 stipulates that every application shall be made in writing for the issue or renewal of a licence. Rule 4 deals with application and renewal hearings. Rule 13 defines interventions as being merely for the purpose of supporting, opposing or modifying the application.
The most relevant decision is that of Confedera tion Broadcasting (Ottawa) Limited v. Canadian Radio-Television Commission' where a majority of the Supreme Court of Canada held that a CRTC decision cannot stand in so far as it denied the appellant the right to apply for a further renewal. It was held that nowhere in the Act is there such power as to enable the CRTC to couple a renewal term with a peremptory denial of status to apply for a further renewal prior to the expira tion of the term.
Laskin J. (as he then was) makes the point [at page 931] that the licensee has no right to a renewal but a right to apply for a renewal, and previously the point that a renewal applicant is in a more favourable position than other applicants.
1 [1971] S.C.R. 906.
But there is nothing said about other applicants not being entitled to apply.
Whether or not the appellant could apply afresh for the fre quency, it needs no demonstration that an applicant for a licence who must compete for it with an undetermined number of other applicants is, prima facie at least, in a less favourable position than it would be in if it were applying for renewal of a subsisting licence.
In my opinion, the Act gives a licensee, whose licence has not been revoked or suspended during its currency, a right to apply for a renewal. There are obvious economic factors involved in qualifying for and remaining qualified for licensing, and the right to apply for a renewal of a licence cannot be dismissed as having merely ephemeral value because there is no right to a renewal:
Obviously, it is much more serious to deny the right to apply for a renewal to a licence holder than to refuse a hearing to another applicant for the same licence. The former has usually expended important sums of money establishing his venture, whereas the latter has mostly invested time and energy in the preparation of his application. Nei ther has a vested right in a broadcasting licence, but in my view both have a right to be heard. To be sure, the former, if he has complied in all respects with the terms of its present licence, has a priority right to be heard, but there is nothing to be found in the Act to the effect that the latter should not be heard at all. In my opinion the CRTC has a duty to hear his application before renewing the licence. Surely the additional input can do no harm and the CRTC still remains free to decide as it chooses.
One may even suggest that more competition would greatly assist the CRTC in achieving its objectives, namely "to safeguard, enrich and strengthen the cultural, political, social and eco nomic fabric of Canada" as enunciated under section 3 of the Act. Should the CRTC renew, without hearing other applications, it may discover too late that better and more acceptable alterna tives have been passed by, perhaps to the detri ment of the people in the area to be served.
It is contrary to the basic principles of natural justice to decide without hearing. True, it is just and fair to grant a licence holder priority hearing in order to decide whether his monopoly should be
extended for a further term, but it no less impor tant that other applicants for the same licence be given the opportunity to offer alternatives; the test is bound to produce higher standards.
Of course this could create administrative prob lems for the CRTC but, to borrow from the lan guage of section 3(j) of the Act, it is for the Commission to adopt a type of regulation and supervision "flexible" enough to adapt itself "readily" to "scientific and technical advances".
A writ of mandamus will therefore issue order ing the said Canadian Radio-Television Commis sion to hear the application of Capital Cable Co operative for a cable television licence to serve the -Greater Victoria area as requested in applicant's originating notice of motion and before renewing the licence of Victoria Cablevision Ltd.
ORDER
Writ of mandamus to issue ordering the said Canadian Radio-Television Commission to hear the application of Capital Cable Co-operative for a cable television licence to serve the Greater Vic- toria area as requested in applicant's originating notice of motion and before renewing the licence of Victoria Cablevision Limited.
Costs to the applicant.
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