T-2365-77
Stephen Chitty, Dorothia Atwater, Wayne Kerr,
Sharron Lang, David Coulson, Ulla Sorrenson,
Peter Hay and The Canadian Broadcasting
League (Plaintiffs)
v.
Canadian Radio-television and Telecommunica
tions Commission (Defendant)
Trial Division, Dubé J.—Toronto, October 17;
Ottawa, October 25, 1977.
Practice — Application for joinder as party defendant
Legal rights affected by decision — Objection because possible
delay in adjudication — Plaintiffs suggest applicants be
named interveners — No rule to force applicants to become
interveners — Application allowed — Federal Court Rule
1716.
This is an application for an order adding the two applicants
as parties defendant in the action. The parties to the action had
concurred in stating a special case for adjudication. Applicants
contend that the declaratory relief sought would seriously
affect their legal rights. Plaintiffs, however, object to appli
cants' being joined as defendants because joinder would delay
the case now ready for adjudication, and rather, suggest appli
cants be named interveners in the stated case.
Held, the application is allowed. The answers to the ques
tions stated could come down hard against the very real and
tangible interests of the applicants. It would be manifestly
unfair to allow applicants' rights to be challenged, and possibly
curtailed, in the absence of the licensee. Plaintiffs' proposal to
join applicants as interveners, although possibly a time-saver,
cannot be imposed on applicants who do not wish to be joined
as interveners and to be bound by a decision in which they
would not have been joined as full-fledged parties. Further
more, there does not appear to be a Rule under which the
applicants can be forced to become interveners against their
will.
Ciba Corp. and American Cyanamid Co. v. Decorite IGAV
(Canada) Ltd. (1971) 2 C.P.R. (2d) 124, applied.
Canamerican Auto Lease & Rental Ltd. v. The Queen
T-4780-76, applied.
APPLICATION.
COUNSEL:
A. Roman for plaintiffs.
J. Johnson for defendant.
R. Blair for applicants.
SOLICITORS:
Andrew J. Roman, c/o The Public Interest
Advocacy Centre, Ottawa, for plaintiffs.
John M. Johnson, c/o Canadian Radio-televi
sion and Telecommunications Commission,
Ottawa, for defendants.
Minden, Gross, Grafstein & Greenstein,
Toronto, for applicants.
The following are the reasons for order ren
dered in English by
DuBÉ J.: This is an application for an order
adding Western Cable Limited and M.S.A.
Cablevision Limited as parties defendant in the
within action.
The action, launched by members of a commu
nity association, is for a declaration that the
Broadcasting Act' does not permit the CRTC to
decide "applications for transfer of control" over
cable television licences. Both parties to the action
have concurred in stating questions arising therein
in the form of a special case for adjudication as
provided for under Rule 475. The six questions for
the Court read as follows:
1. Do the plaintiffs or any of them have standing to bring this
action?
2. Does the Broadcasting Act give the CRTC the power to
insert a condition of licence that "effective control of the
licensee must not be transferred without the consent of the
Commission"?
3. If the answer to the previous question is yes, has the
condition been validly imposed or enacted?
4. Is the CRTC empowered by the Broadcasting Act, in the
case of licensees which are incorporated, to authorize or to
allow the transfer of effective control of such licensees by
means of the transfer of their shares?
5. If the answer to the previous question is in the negative, does
the hearing by the CRTC of an application for transfer of the
effective control of a corporation holding a broadcasting licence
by means of sale of shares, in the context of the Broadcasting
Act, constitute in law the surrender and revocation of the
existing licence?
6. Did the action taken by the CRTC in this particular case
unlawfully prejudice any rights of the plaintiffs or any of them?
' R.S.C. 1970, c. B-11.
In his affidavit in support of this application, the
President of both applicant companies outlines
these allegations which are uncontradicted:
"Western" operates a cable television system at
New Westminster and Surrey, B.C., and
"M.S.A." operates another cable system at
Abbotsford and Matsqui, B.C., both pursuant to a
licence granted by CRTC. M.S.A. is a wholly
owned subsidiary of Western.
On October 19, 1976, both applicants filed an
application to authorize the transfer of control of
the two companies to Maclean-Hunter. The plain
tiffs intervened and opposed the application. After
hearings, the application was denied by the
CRTC.
The affiant claims that the declaratory relief
sought by the plaintiffs, if granted, will seriously
affect the legal rights of the applicants, in that it
would in effect reopen the matter and subject their
licences to challenge by plaintiffs and others even
though they have not expired.
The prayer concluding plaintiffs' statement of
claim, couched in broader terms than the questions
to the Court, reads:
12. The plaintiffs therefore claim:
a) a declaration that the Broadcasting Act does not permit
the CRTC to hear and to decide "applications for transfer of
control" over cable television licenses by means of applica
tions for transfer of control of the companies which hold the
licenses;
b) a declaration that if the Commission had any jurisdiction
to hear the matter, it had to treat it as an application for the
revocation of a license coupled with an application for a new
license in the same areas;
c) a declaration that notwithstanding the denial of the
license to Maclean-Hunter, the application for revocation is
still before the Commission and the Lower Fraser Valley
Committee for Community-Based Cablevision Services is
entitled to apply to and be heard by the CRTC in relation to
the licenses for the territories of New Westminster/Surrey,
and Abbotsford/Clearbrook on a footing equal to that of any
applicant who may have applied or who shall apply;
d) alternative to sub-paragraph (c) above, a declaration that
if and when the present licensee no longer wishes to be
responsible for operating his cable undertakings, the Lower
Fraser Valley Committee for Community-Based Cablevision
Services is entitled to apply to and be heard by the CRTC in
relation to the licenses for the territories of New Westmin-
ster/Surrey, and Abbotsford/Clearbrook on a footing equal
to that of any applicant who may have applied or who shall
apply;
e) such further and other relief as to this court may seem
just.
CRTC does not object to, and did not oppose
this application. Plaintiffs would agree that appli
cants be joined as interveners in the stated case but
do object to their being joined as defendants,
largely because the joinder would unduly delay a
case which is now ready for adjudication.
Rule 1716 of the Federal Court provides that
the Court may at any stage join any person as a
party (defendant) if it appears necessary to ensure
that all matters in dispute be effectually deter
mined. However, a person seeking to be joined
must show that some of his legal rights might be
affected by the outcome of the case.
Quoting Rule 1716, my brother Walsh said in
Ciba Corp. and American Cyanamid Co. v.
Decorite IGAV (Canada) Ltd. 2 at page 126:
Generally speaking, the adding of parties is permitted espe
cially when the party to be added as a plaintiff consents to
same see [Federal Court Rules, P.C. 1971-20, SOR 71-68]
Rules 1715 and 1716 and, in particular, Rule 1716(2)(b) which
reads as follows:
1716. (2) At any stage of an action the Court may, on
such terms as it thinks just and either of its own motion or on
application,
(b) order any person who ought to have been joined as a
party or whose presence before the Court is necessary to
ensure that all matters in dispute in the action may be
effectually and completely determined and adjudicated
upon, to be added as a party,
but no person shall be added as a plaintiff without his
consent signified in writing or in such other manner as the
Court may find to be adequate in the circumstances.
and, in fact, it is desirable that any party whose rights would be
affected by the judgment should be joined (see Int'l Minerals
and Chemical Corp. v. Potash Co. of America et al., 43 C.P.R.
157, 47 D.L.R. (2d) 324, [1965] S.C.R. 3).
In the International Minerals decision, Cart-
wright J. discusses two approaches to joinder. The
wider view is "that the rule gives a wide power to
2 (1971) 2 C.P.R. (2d) 124.
the Court to join any party who has a claim which
relates to the subject-matter of the action". The
"narrower view" is that the power is "hedged
about with limitations". The narrower approach
limits the power to three classes of case including
"where the proprietary rights of the intervener are
directly affected by the proceedings".
Again, the questions addressed to the Court in
the stated case are less specific than the relief
sought in the statement of claim. Paragraph 12
thereof deals with specific cable television licences
which happen to be the licences held by the appli
cants. The questions put to the Court are more
academic and may apply to similar situations else
where, but the Court is not expected to limit itself
to hypothetical facts and merely to toy with
ethereal concepts. Answers to those questions
could come down hard against the very real and
tangible interests of the applicants.
Holders of broadcasting licences obviously have
some rights; if that proposition needed confirma
tion it received it from the 1971 Supreme Court
decision in Confederation Broadcasting (Ottawa)
Ltd. v. Canadian Radio-Television Commission'.
It would be manifestly unfair to allow those rights
to be challenged, and possibly curtailed, in the
absence of the licensees.
Plaintiffs' proposal to join the applicants as
interveners, although possibly a time-saver, cannot
be imposed on the applicants. As stated by my
brother Addy in Canamerican Auto Lease &
Rental Limited v. The Queen'', the Federal Court
Rules, except in the section dealing with admiral
ty, do not specifically provide for such procedure.
However, the learned Judge went on to order it, in
the circumstances of that case where the applicant
had requested it and had agreed to be bound by
the findings of the main action, "to avoid a multi
plicity of proceedings and contradictory findings
on the same set of facts".
3
[1971] S.C.R. 906.
4 Court No. T-4780-76, released April 25, 1977. [Reasons for
order not distributed—Ed.]
The applicants in the instant motion do not wish
to be joined as interveners and to be bound by a
decision in which they would not have been joined
as full-fledged parties. Even if I were so disposed,
and I am not, I fail to see under what Rule I would
force the applicants to become interveners against
their will.
I am therefore of the view that it is necessary, in
order to ensure that the action be effectually and
completely determined, that the two applicants be
joined as parties defendant in this action.
ORDER
IT IS HEREBY ORDERED that Western Cable
Limited and M.S.A. Cablevision Limited be added
as parties defendant in this action. Costs in the
cause.
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