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A-26-79
Canadian Broadcasting League (Applicant) v.
Canadian Radio-television and Telecommunica tions Commission, Rogers Telecommunications Limited and Canadian Cablesystems Limited (Respondents)
[No. 1]
Court of Appeal, Ryan and Le Dain JJ. and MacKay D.J.—Toronto, March 20 and 22; Ottawa, June 19, 1979.
Judicial review — Telecommunications — Application to quash application by CBL for judicial review of CRTC deci sion approving transfer to RTL of effective control of broad casting undertakings controlled by CCL — Application based on lack of status and on contention that a s. 28 application is barred by s. 29 of the Federal Court Act because of the right to appeal to this Court under s. 26 of the Broadcasting Act on a question of law or jurisdiction — Since all the grounds of attack against the CRTC decision may be raised by way of appeal pursuant to s. 26 of the Broadcasting Act, s. 28 application quashed — Unnecessary to deal with question of status — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 28, 29 — Broadcasting Act, R.S.C. 1970, c. B-II, s. 26.
APPLICATION for judicial review. COUNSEL:
A. J. Roman for applicant.
D. E. Osborn for respondent Canadian Radio- television and Telecommunications Commis sion.
P. Genest, Q.C. and G. W. Adams for respondent Rogers Telecommunications Lim ited.
B. C. McDonald for respondent Canadian Cablesystems Limited.
SOLICITORS:
The Public Interest Advocacy Centre, Ottawa, for applicant.
Canadian Radio-television and Telecom munications Commission, Ottawa, for itself.
Cassels, Brock, Toronto, for respondent Rogers Telecommunications Limited.
Lang, Michener, Cranston, Farquharson & Wright, Toronto, for respondent Canadian Cablesystems Limited.
The following are the reasons for judgment rendered in English by
LE DAIN J.: This is an application by Rogers Telecommunications Limited ("RTL") for an order, pursuant to section 52(a) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, quash ing an application under section 28 of the Act by the Canadian Broadcasting League ("CBL") to review and set aside Decision 79-9 of January 8, 1979 by which the Canadian Radio-television and Telecommunications Commission ("CRTC") approved a transfer to RTL of the effective control of broadcasting undertakings controlled by Canadian Cablesystems Limited ("CCL").
This application was heard at the same time as the application by RTL in Court File No. 79-A 305 (infra, p. 396) for an order to quash an application by the CBL for leave to appeal, pursu ant to section 26 of the Broadcasting Act, R.S.C. 1970, c. B-11, from the same decision of the CRTC. The reasons for judgment on that applica tion to quash, which was based on the ground that the CBL lacked status to appeal, indicate the nature of the proceedings before the CRTC, the participation of the CBL, and the grounds on which the CBL seeks to attack the decision of the CRTC.
The application to quash the section 28 applica tion is also based on lack of status, but it is based as well on the contention that a section 28 applica tion is barred in this case by section 29 of the Federal Court Act because of the right of appeal to this Court under section 26 of the Broadcasting Act on a question of law or jurisdiction. Since in my opinion the Court is without jurisdiction to entertain the section 28 application because of section 29, it is unnecessary to deal with the question of status.
Section 29 of the Federal Court Act reads as follows:
29. Notwithstanding sections 18 and 28, where provision is expressly made by an Act of the Parliament of Canada for an appeal as such to the Court, to the Supreme Court, to the Governor in Council or to the Treasury Board from a decision or order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commis sion or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except to the extent and in the manner provided for in that Act.
Section 26(1) of the Broadcasting Act provides:
26. (1) An appeal lies from a decision or order of the Commission to the Federal Court of Appeal upon a question of law or a question of jurisdiction, upon leave therefor being obtained from that Court upon application made within one month after the making of the decision or order sought to be appealed from or within such further time as that Court or a judge thereof under special circumstances allows.
As the reasons for judgment on the application in Court File No. 79-A-305 (infra) and the sub missions on the hearing of this application indi cate, the grounds of attack which the CBL seeks to assert against the CRTC's decision may be sum marized as follows:
1. The CRTC lacked jurisdiction to approve the transfer to RTL of the effective control of the broadcasting undertakings controlled by CCL;
2. The CRTC denied the CBL natural justice in rejecting its application for the disclosure of certain financial information concerning the operations of RTL;
3. The CRTC denied the CBL natural justice in rejecting its application for permission to cross- examine officers of RTL and CCL, as well as certain of the expert witnesses.
Since all of these grounds of attack may be raised by way of an appeal pursuant to section 26 of the Broadcasting Act the section 28 application must be quashed. See Mojica v. Minister of Man power and Immigration [ 1977] 1 F.C. 458.
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RYAN J.: I agree.
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MACKAY D.J.: I agree.
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