79-A-305
Canadian Broadcasting League (Applicant)
v.
Canadian Radio-television and Telecommunica
tions Commission, Rogers Telecommunications
Limited and Canadian Cablesystems Limited
(Respondents)
[No. 2]
Court of Appeal, Ryan and Le Dain JJ. and
MacKay D.J.—Toronto, March 20 and 22;
Ottawa, June 19, 1979.
Practice — Standing — Telecommunications — Application
for order pursuant to s. 52(a) of the Federal Court Act to
quash application for leave to appeal from CRTC decision on
ground that applicant for leave to appeal (CBL) lacks status
— CBL (a voluntary, non-profit, public interest organization
long interested in broadcasting) an intervener in CRTC hearing
— Whether or not CBL has sufficient interest for status to
appeal under section 26 of the Broadcasting Act — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 52(a) — Broad
casting Act, R.S.C. 1970, c. B-11, s. 26(1) — CRTC Rules of
Procedure, SOR/71-330, as amended by SOR/77-533.
This is an application by RTL for an order, pursuant to
section 52(a) of the Federal Court Act, to quash an application
for leave to appeal from a decision of the CRTC on the ground
that CBL, a voluntary, non-profit, public interest organization,
lacks status to appeal. The CRTC decision being appealed by
CBL pursuant to section 26(1) of the Broadcasting Act
approved the transfer to RTL of the effective control of broad
casting undertakings controlled by CCL. The CBL was an
intervener in the proceedings before the CRTC and appeals its
decision on the grounds that (I) the CRTC lacked jurisdiction
to approve the transfer, (2) the CRTC denied CBL natural
justice in rejecting its application for disclosure of certain
financial information concerning RTL's operations, and (3) the
CRTC denied CBL natural justice in rejecting its application
for permission to cross-examine. The issue is whether CBL has
a sufficient interest for status to appeal under section 26 by
virtue of its objects and its well-established role as an advocate
of the consumer interest in broadcasting, its participation as a
party to the proceedings before the CRTC, and its grounds for
appeal.
Held, the application is denied. The public interest in broad
casting and the importance of affording members of the public
access to the process by which public policy in this field is
formulated and implemented at the regulatory level has been
recognized. The right of appeal which is created in this particu
lar statutory context must be seen as an extension of this
access. The CBL's well-established role and assumed responsi
bility as a public interest advocate in the field of broadcasting
gives it a sufficient interest not only for status before the
CRTC but also for status to appeal. That status is further
reinforced in this case because the grounds for appeal which the
CBL seeks to assert raise issues as to whether it was deprived of
procedural rights essential to the effective exercise of its statu
tory right of presentation. The narrow test of the interest
required for status that is found in some of the cases bearing on
standing to institute judicial proceedings does not have applica
tion in this particular context to a right of appeal which must
be seen in relation to a public right of intervention to assert and
protect the individual interest in broadcasting.
In re Canadian Radio-Television Commission and in re
London Cable TV Ltd. [1976] 1 F.C. 621, followed. John
Graham & Co. Ltd. v. Canadian Radio-Television Com
mission [1976] 2 F.C. 82, considered. The Nova Scotia
Board of Censors v. McNeil [ 1976] 2 S.C.R. 265, applied.
APPLICATION.
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 for an order,
pursuant to section 52(a) of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, to quash an
application for leave to appeal from a decision of
the Canadian Radio-television and Telecommuni
cations Commission ("CRTC") on the ground that
the applicant for leave to appeal lacks status to
appeal.
The Canadian Broadcasting League ("CBL")
has applied, pursuant to section 26(1) of the
Broadcasting Act, R.S.C. 1970, c. B-11, for leave
to appeal Decision 79-9, dated January 8, 1979, by
which the CRTC approved the transfer to Rogers
Telecommunications Limited ("RTL") of the
effective control of broadcasting undertakings con
trolled by Canadian Cablesystems Limited
("CCL"). The CBL was an intervener in the
proceedings before the CRTC. RTL brings the
application to quash.
RTL contends that the CBL has no status to
bring an application for leave to appeal because it
has no pecuniary or proprietary interest, or other
interest over and above that of the general public,
which could in any way be affected by the decision
complained of.
The application to quash and the contestation
thereof are supported by affidavits introducing
certain material purporting to show the nature of
the issues before the CRTC, the interest and par
ticipation of the CBL, and the effect of the
decision.
The CBL is a voluntary, non-profit, public inter
est organization that was originally formed as the
Canadian Radio League in 1930 and was incorpo
rated in 1973 with the following objects:
I. To express a consumer, an audience, point of view on radio
and television programming.
2. To support a national policy for Canadian broadcasting and
for communications, films and the arts.
3. To support a broadcasting system with publicly and private
ly owned elements which constitute a single system in French
and English, in which the Canadian Broadcasting Corporation
is recognized as the primary national broadcasting service.
4. To ensure that the broadcasting system is responsible to
Parliament and is regulated by a commission responsible to
Parliament.
The record shows that the CBL has intervened
on several occasions to make submissions in pro
ceedings before the CRTC. In its "intervention
statement" in the present case the CBL stated that
it proposed to speak for the interests of the cable
television subscribers of the companies involved, as
appears from the following passage:
3. The CBL intervened and participated actively at the Janu-
ary 17, 1978 hearing to determine whether a transfer of
effective control had taken place. Although the issues in that
hearing were somewhat different, the primary concern of the
CBL in this case is, as it was in the January hearing, with the
interests of subscribers. Neither Canadian Cablesystems Lim
ited (CCL) nor Rogers Telecommunications Limited (RTL)
can seriously claim to represent more than the interests of their
respective shareholders. The CBL, with its record of past
interventions in similar cases, sees itself as one possible proxy
representing the interests of the subscribers of the two cable
conglomerates. The CBL is not seeking to represent the public
interest in this hearing, but submits that the public interest will
best be served if the interests of both shareholders and subscrib
ers are adequately represented.
An affidavit submitted on behalf of the CBL
states, with respect to the relationship between the
CBL and subscribers,
... that the CBL has a large number of its members in the
Metropolitan Toronto area, and that a portion of these are
cable television subscribers, and that a number of these would
include subscribers of companies controlled by Rogers Tele
communications Limited or Canadian Cablesystems Limited;
RTL concedes that some of the members of the
CBL may be subscribers of the licensees controlled
by CCL and RTL, but denies that the CBL itself
has the interest of a subscriber or that it is author
ized to represent individual subscribers.
We are told that the reason for the application
to the CRTC for approval of the transfer of con
trol to RTL is the following condition which
appears on the back of the broadcasting licences
held by the subsidiaries of CCL:
This licence shall be conditional upon the effective ownership or
control of the broadcasting undertaking licensed not being
transferred without the permission of the Canadian Radio-
television and Telecommunications Commission.
If the licensee is incorporated as a private company, the licence
shall be conditional upon the ownership, or control of any share
of the capital stock of the company, not being transferred either
directly or indirectly without the permission of the Canadian
Radio-television and Telecommunications Commission having
been first obtained, and upon the control of the broadcasting
undertaking licensed not being transferred in any manner
whatsoever, without the permission of the Canadian Radio-
television and Telecommunications Commission having been
first obtained.
If the licensee is a company, other than a company incorpo
rated as a private company, the licence shall be conditional
upon the effective control of the broadcasting undertaking
licensed not being transferred in any manner whatsoever to any
person, without the permission of the Canadian Radio-televi-
sion and Telecommunications Commission having been first
obtained.
Section 19 of the Broadcasting Act provides that
a public hearing shall be held by the CRTC in
certain cases, and subsection (3) thereof provides
in part that "a public hearing may be held by the
Commission in connection with any other matter
in respect of which the Commission deems such a
hearing to be desirable." It is common ground that
the CRTC purported to act pursuant to this provi
sion in the present case, although I understood
counsel for the CBL to contend in argument that
the case was in substance one for which a public
hearing would be mandatory under the earlier
provisions of section 19.
Public notice of the hearing was given as
required by section 20 of the Act. The CBL
indicated an intention to intervene, and as already
mentioned, filed a "notice of intervention". This
was in apparent compliance with sections 13 and
following of the CRTC Rules of Procedure, SOR/
71-330, as amended by SOR/77-533. Sections 13,
14 and 15 respecting interventions are as follows:
13. Any person who is interested in an application, or who
wishes to lodge a complaint or make a representation that has
been determined by the Commission to constitute an interven
tion, other than the applicant, may file with the Commission an
intervention for the purpose of supporting, opposing or modify
ing the application.
14. (I) An intervention shall
(a) describe the interest of the intervener;
(b) contain a clear and concise statement of the relevant
facts and the grounds upon which the intervener's support
for, opposition to or proposed modification of the application
is based;
(c) be divided into paragraphs, numbered consecutively,
each of which shall be confined as nearly as possible to a
distinct subject matter;
(d) set forth the name, address and telephone number of the
intervener and his agent, if any;
(e) be signed by the intervener or his agent;
(l) where it is signed by the agent of the applicant, be
accompanied by a copy of the document whereby the agent
was appointed, which document shall be in the form set out
in Schedule A;
(g) contain a list of any documents that may be useful in
explaining or supporting the intervention;
(h) state whether the intervener wishes to appear; and
(i) be filed with the Commission together with a copy of the
documents described in paragraph (g).
(2) An intervener shall serve a true copy of his intervention
upon the applicant in relation to whom his intervention is made
and upon such other persons as the Commission may designate.
15. An intervention shall be filed and served at least 20 days
before the day fixed for the commencement of the public
hearing as set out in the notice thereof published pursuant to
paragraph 4(2)(b)(î) unless such notice or the Commission
directs otherwise.
"Intervener" and "party" are defined in
section 2 of the Rules as follows:
2....
"intervener" means a person who files an intervention pursuant
to section 15;
"party", in relation to a hearing held or to be held by or on
behalf of the Commission, means the applicant and any
intervener;...
In its "intervention statement" the CBL made
two applications of a procedural nature. It applied
for the disclosure of certain financial information
concerning the operations of RTL and its subsidi
aries, and it applied for permission to cross-exam
ine the officers of RTL and CCL, as well as some
of the expert witnesses. Both of these applications
were denied by the CRTC in its pre-hearing con
ference decision of September 7, 1978.
This decision contains the following passages
concerning both the issues raised by the applica
tion and the participation by "interested parties"
in the hearing:
The primary issue before the Commission at the pending
hearing is, as stated in the July 24, 1978 Notice of Public
Hearing, a proposal that the effective control of broadcasting
undertakings controlled by CCS be transferred to RTL. In that
Notice, the Commission stated that it will:
.. wish to explore fully with all interested parties the
implications of the proposals for the Canadian broadcasting
system and the communities served by the licensed undertak
ings involved."
The Commission wishes, therefore, to ensure an exploration of
the issues by all parties in an unrestricted manner. Such issues,
however, must be relevant to the primary issue noted above.
In the Commission's view, the issue before it is whether it is in
the public interest that RTL should have effective control of
the broadcasting undertakings controlled by CCS, and not
whether the group which presently exercises effective control
should retain that control.
In its pre-conference decision the CRTC listed
the CBL among the interveners who had expressed
a desire to appear at the hearing of the applica
tion. We were told by counsel that there were over
1,500 written interventions in connection with the
application, but only a small proportion of the
interveners expressed a desire to participate in the
hearing. The record shows that the CBL was
represented by counsel at the hearing and that he
made submissions, including a renewal of the
application for permission to cross-examine, which
was again denied. The CBL did not call witnesses
and the only material which it placed before the
Commission was its "intervention statement".
On January 8, 1979 the CRTC rendered a
decision approving the transfer of effective control
to RTL of the licensees and broadcasting under
takings controlled by CCL. For purposes of the
application to quash, the general nature of the
grounds of appeal set forth in the CBL's applica
tion for leave to appeal from that decision may be
summarized as follows:
1. The CRTC lacked jurisdiction to approve the
transfer;
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.
Section 26(1) of the Broadcasting Act, which
creates the right of appeal that is applicable in this
case, contains no qualification as to the interest
required for status to appeal. It reads:
26. (I) 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.
Status to appeal pursuant to section 26 was
considered by this Court in John Graham & Com
pany Limited v. Canadian Radio-Television
Commission [1976] 2 F.C. 82. That case involved
the question of status to bring both an application
under section 28 of the Federal Court Act and an
appeal under section 26 of the Broadcasting Act
against a decision of the CRTC approving a pro
posed transfer of shares. The Court held that John
Graham & Company Limited, as an intervener in
the proceedings before the Commission and a
shareholder of the company whose shares were to
be transferred, had status for both the section 28
application and the appeal. The reasons of Urie J.,
with whom Thurlow J. (as he then was) and Ryan
J. both expressed agreement, contain the following
passages on the question of status at pages 92-94
of the report:
It will be observed that a section 28 application may be
brought "by the Attorney General or any party directly affect
ed by the decision or order ...". On the other hand, section 26
is silent on the question as to who may bring an appeal from a
decision or order of the Commission.
While no one of the applicants is a party to the proceeding in
the sense that the Broadcasting Act requires them to appear or
to be heard or to file pleadings as though the matter were a
judicial proceeding, the Commission did, in fact, permit them
to intervene, to file "an intervention" and to make representa
tions at the hearing.
The applicant, John Graham & Company Limited, filed
documentary evidence that it represented 17 per cent of the
minority shareholders. The other applicants represented a fur
ther 12 per cent of such shareholders. Those facts alone, in my
view, demonstrate that they are just as directly affected by the
outcome of the application for transfer of controlling interest in
Bushnell, as was Standard, the applicant for approval of such
transfer. The value of their shares in terms of earnings, capital
appreciation or depreciation and participation in the affairs of
the company could well be affected by the decision. That is the
kind of "demonstrable interest" referred to, in another context,
in the case of The Attorney General of Manitoba v. National
Energy Board [ 1974] 2 F.C. 503 at page 518. Its participation
in the hearing when coupled with this demonstrable interest
clearly makes it at least a proper "party" for the section 28
application. Whether this reasoning applies to John Graham in
his personal capacity, and to a lesser extent to Ernest L.
Bushnell, is doubtful but it is not necessary to finally decide
their status in view of the finding of the right of the company to
apply.
For the same reasons I believe John Graham & Company
Limited is a proper party to an appeal under section 26 of the
Broadcasting Act, notwithstanding the silence of that section as
to who is the proper party to an appeal. This is a firm which
itself has, and represents persons who have, a genuine grievance
because a decision has been made which may prejudicially
affect their interests. They are not busybodies interfering in
things that do not concern them. Thus, it is entitled to appeal.
See: Okanagan Helicopters Ltd. v. Canadian Transport Com
mission [1975] F.C. 396 and Maurice v. London County
Council [1964] 2 Q.B.D. 362.
Counsel for RTL placed considerable reliance
on this passage as indicating in his submission that
this Court has held, at least by implication, that in
order to have status to appeal under section 26 it is
not sufficient to have been an intervener, and by
definition a party, to the proceedings before the
Commission, but one must be able to show that
one is aggrieved by the decision because one's
interests are or may be prejudicially affected by it.
It is to be observed that Urie J. was dealing in
the Graham case with status for a section 28
application, as well as status for an appeal under
section 26. In the case of the section 28 applica
tion, the Court was obliged to find that the appli
cant was a person "directly affected" by the deci
sion since this is an express requirement of the
section for an application brought by a person
other than the Attorney General. Upon finding
that John Graham & Company Limited met this
requirement, it followed, I think, that it would
certainly have a sufficient status for an appeal
under section 26. The most that I am prepared to
conclude from these reasons is that the interest of
a shareholder was sufficient to confer status to
appeal. I do not think there was an attempt to
define the essential or minimal conditions for
status under section 26, or to determine what other
interests might be recognized as conferring status.
The issue, as I see it, is whether CBL has a
sufficient interest for status to appeal under sec
tion 26 by virtue of its objects and its well-estab
lished role as an advocate of the consumer interest
in broadcasting, its participation as a party to the
proceedings before the CRTC in the present case,
and its grounds of appeal.
Broadcasting is a matter of interest to all
Canadians. While it involves pecuniary, proprie
tary and other material interests, it involves inter
ests of a non-material nature affecting the welfare
of Canadians, all of whom are in some measure
affected by the service it provides. The importance
of broadcasting to the life of the country is reflect
ed in section 3(b) of the Broadcasting Act, which
reads;
3. It is hereby declared that
(b) the Canadian broadcasting system should be effectively
owned and controlled by Canadians so as to safeguard,
enrich and strengthen the cultural, political, social and eco
nomic fabric of Canada;
The individual interest in broadcasting is analo
gous to that in films which was recognized by the
Supreme Court of Canada in the McNeil case' as
sufficient for standing.
In the London Cable case 2 this Court held that
by virtue of section 19 of the Broadcasting Act the
public had a "statutory right of presentation", and
that this included the right to disclosure of suffi
cient information concerning the nature of the
issues to enable members of the public to exercise
this right. The clear implication of this holding, I
think, is that every member of the public, quite
apart from any special interest of a pecuniary or
proprietary nature, has status to appear at a public
hearing of the Commission and make representa
tions. This is a recognition, it seems to me, of the
public interest in broadcasting and the importance
of affording members of the public access to the
process by which public policy in this field is
formulated and implemented at the regulatory
level. By the same token I think the right of appeal
which is created in this particular statutory con
text must be seen as an extension of this access
the means by which not only individual rights
affected by a decision are afforded protection but
the public right of intervention is made complete.
The material before us shows that the CBL has
been established for close to fifty years with a
well-identified role during this period as an organ
ized contributor to public policy formulation in
broadcasting. As the Canadian Radio League it
was represented by legal counsel in the Radio
Reference 3 before both the Supreme Court of
Canada and the Judicial Committee of the Privy
Council. The record also shows that the CBL has
played an active role as an intervener in hearings
of the CRTC. Its activities are supported in some
measure by public funds. In my opinion this well-
established role and assumed responsibility as a
The Nova Scotia Board of Censors v. McNeil [1976] 2
S.C.R. 265.
2 In re Canadian Radio-Television Commission and in re
London Cable TV Limited [1976] 2 F.C. 621.
3 I re Regulation and Control of Radio Communication in
Canada [1932] A.C. 304 affirming [1931] S.C.R. 541.
public interest advocate in the field of broadcast
ing gives it a sufficient interest not only for status
before the CRTC but for status to appeal. That
status is further reinforced in the present case
because the grounds of appeal which the CBL
seeks to assert raise issues as to whether it was
deprived of procedural rights essential to the effec
tive exercise of its statutory right of presentation.
We were referred by counsel for RTL to many
authorities bearing on standing to institute judicial
proceedings by various forms of remedy. I do not
think the narrow test of the interest required for
status that is found in some of those cases has
application in this particular context to a right of
appeal which must be seen in relation to a public
right of intervention to assert and protect the
individual interest in broadcasting.
For these reasons I would dismiss the applica
tion to quash, but I would make no order as to
costs.
* * *
RYAN J.: I agree.
* * *
MACKAY D.J.: I agree.
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.