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T-775-78
Radio Inter -Cité Inc. and Radio Drummond Limitée (Petitioners)
v.
Canadian Radio-television and Telecommunica tions Commission (Respondent)
and
Radio des Plaines Limitée (Mis -en-cause)
Trial Division, Walsh J.—Montreal, February 27; Ottawa, March 2, 1978.
Prerogative writs — Prohibition — CRTC hearing approv ing first stock transfer under judicial review and appeal — Second hearing set to consider another transfer of same stock — Petitioners seek prohibition of hearing — Argued that second transfer would make appeal illusory and prejudice its rights — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18 and 28.
Petitioners seek a writ of prohibition against respondent requiring it to suspend a hearing, set for April 4, 1978, to consider the application of the mis -en-cause for a stock trans fer. An earlier stock transfer, involving the same stock, had received CRTC approval, but petitioners sought judicial review of that hearing and also appealed the decision to the Court of Appeal. Petitioners seek to delay the hearing until after the Court of Appeal has rendered its decision, arguing that approv al of the second stock transfer would render the appeal illusory and would be prejudicial to the petitioners' rights.
Held, the application is denied. Petitioners in effect seek the issuance of the writ on a quia timet basis. The question of expediency, however, cannot be taken into consideration in deciding if a writ of prohibition should issue if the facts of the matter do not legally justify its issuance. If the appeal and section 28 application against the earlier decision is dismissed, there will be no reason for opposing the hearing of an applica tion for a second transfer. Similarly, the Board could, on representations of its own motion, agree to a suspension of the hearing. Then, too, the Court of Appeal may have heard the matter and rendered its decision before the date set for the hearing. The CRTC, furthermore, was legally obliged to set a date for a hearing; to postpone it because of matters irrelevant to the discharge of its duty would be to decline jurisdiction. The decision to hold a hearing, to set dates, and to postpone are merely administrative matters and not subject to the Court's review.
Canadian Pacific Railway v. The Province of Alberta [ 1950] S.C.R. 25, considered.
APPLICATION.
COUNSEL:
Jacques Rossignol for petitioners. Denis Hardy for respondent. Bernard Courtois for mis -en-cause.
SOLICITORS:
Lapointe, Rosenstein, Konigsberg & Delorme,
Montreal, for petitioners.
Gourd, Mayrand & Brunet, Montreal, for
respondent.
O'Brien, Hall, Saunders, Montreal, for
mis -en-cause.
The following are the reasons for judgment rendered in English by
WALSH J.: Petitioners seek a writ of prohibition against respondent requiring it to suspend the hearing set for April 4, 1978, with respect to application no. 780230900 presented by Radio des Plaines Limitée until the Federal Court of Appeal has rendered a decision in the proceedings before it bearing No. A-239-77. The facts are set out in the accompanying affidavit by the President of peti tioners who states that on December 14, 1976, respondent, hereinafter designated as CRTC, heard an application no. 760861500 presented by the mis -en-cause Radio des Plaines Limitée to transfer the control of it by approving the transfer of 5,205 ordinary shares comprising 61.2% of such shares and 4,890 preferred shares comprising 63.8% of such shares from five of the seven share holders to the two who remained and five new shareholders. On March 30, 1977, CRTC approved the transfer. On April 14, 1977, petition ers instituted an application under section 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to review and set aside the decision said application being given file no. A-239-77, and on July 7, 1977, petitioners instituted an appeal in the Federal Court of Appeal against the said decision under no. A-476-77. By judgment of the Chief Justice rendered on October 5, 1977, the two applications were joined for hearing under no. A-239-77. On January 19, 1978, under directions of the Chief Justice petitioners' counsel was advised that unless some action was taken by them by February 15, 1978, the Court would have to consider whether some action should be taken by it with respect to these applications, bearing in mind the requirements of section 28(5) of the Federal Court Act requiring that the application be heard
and determined without delay in a summary way. As a result of this petitioners' memorandum was filed on February 15, 1978, but at the date of the hearing of the present application before this Court for a writ of prohibition in the present proceedings on February 27, 1978, respondent's counsel indicated that he had not yet received a copy of this so was not in a position to reply. In any event it is apparent that with reasonable dili gence on the part of respondent the matter could be made ready for hearing before the Court of Appeal at an early date.
Meanwhile on February 13, 1978, CRTC received a new request for permission to transfer shares from Radio des Plaines Limitée by virtue of which three individuals proposed to buy all the shares presently held by seven shareholders pursu ant to the earlier transfer approval granted by the CRTC. As the result of this application the CRTC published a notice of public hearing of the applica tion for April 4, 1978, at 9:00 a.m.
Petitioners contend that if as a result of this hearing the CRTC should approve the further request for transfer of the said shares the appeal to the Federal Court of Appeal concerning the approval of the earlier transfer would be illusory and the transfer would be prejudicial to the rights of petitioners.
There is no real dispute as to the facts, and there is no doubt that should the petitioners be success ful in their appeal or section 28 application before the Court of Appeal and its decision become final a difficult situation would be created if in the meanwhile the CRTC had given permission to the acquirers of the said shares by virtue of its earlier decision to re-transfer them to third parties as the result of a second decision. Petitioners' counsel contends that it is desirable to stop further pro ceedings on the second application before the CRTC until the appeals have been disposed of, rather than await a second decision made while the said appeals are pending and then bring certiorari proceedings or further appeal or section 28 application against it. I do not believe that the question of expediency can be taken into consider ation however in deciding whether a writ of prohi-
bition should issue if the facts of the matter do not give legal justification for the issue of such a writ. In effect petitioners are seeking the issue of it on a quia timet basis. If the appeal and section 28 application against the earlier decision is dismissed then there will be no reason whatsoever for oppos ing the hearing of an application for a second transfer. Similarly the Board itself could on the representations of petitioners, of its own motion, agree to a suspension of the hearing fixed for April 4, 1978. If either of these events arose then there would be no need for a writ of prohibition to order the suspension of the hearing. It is even possible that the Court of Appeal will have heard the matter and rendered its decision before April 4, 1978.
This is not the only reason why a writ of prohi bition should not issue however. Counsel for mis - en-cause pointed out that CRTC was obliged to set a date for hearing of the application for transfer of the shares and that if it failed to do so could be compelled to by mandamus. He further stated that his client would oppose any postponement to the hearing while awaiting the outcome of an appeal respecting the earlier transfer, which might con ceivably be appealed further to the Supreme Court, raising the possibility of lengthy delays to the prejudice of mis -en-cause and the purchasers of the shares, the approval of which purchase is sought in the application in question. In this con nection he referred to the Supreme Court case of Canadian Pacific Railway v. The Province of Alberta' of which the headnote reads:
The Board of Transport Commissioners, being a court of record, cannot postpone determination of an application for an increase in freight rates by reason of matters entirely irrelevant to the proper discharge of its duty to decide such question. To do so would amount, in effect, to a declining of jurisdiction.
Counsel for respondent pointed out that the deci sion to hold a hearing, the date of same and any postponements of the hearing are purely adminis trative matters not subject to review by the Court. I agree with this view and find that no writ of prohibition can issue or should issue in the present case.
' [1950] S.C.R. 25.
The petition for a writ of prohibition is therefore dismissed with costs.
ORDER
The petition for a writ of prohibition is dis missed with costs.
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