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, Western Cable Limited and
M.S.A. Cablevision Limited (Defendants)
Trial Division, Collier J.—Toronto, May 22; Van-
couver, August 15, 1979.
Jurisdiction — Prerogative writs — Application for
declaratory relief — Telecommunications — Cablevision — In
application before the CRTC for approval of transfer of
control of licensee, preliminary motion, made by plaintiffs
objecting to jurisdiction, dismissed when application for
approval denied — Application made for declarations that: (a)
CRTC is without jurisdiction to hear and decide applications
for transfer of control, (b) if the CRTC did have jurisdiction,
the matter had to be dealt with as an application for revoca
tion of a licence, coupled with an application for a new licence,
(c) notwithstanding denial of application for transfer of con
trol, application for revocation is still before CRTC and
CCBCS is entitled to apply for licences, or (d) alternatively to
(c), if present licensee no longer wishes to be responsible for
cable undertakings, CCBCS is entitled to apply and be heard
on same footing as any other applicant — Whether or not
CRTC's denial of preliminary motion is a "decision or order"
of the Commission, within meaning of s. 26(1) of the Broad
casting Act, and s. 29 of the Federal Court Act — Broadcast
ing Act, R.S.C. 1970, c. B-11, s. 26(1) — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, ss. 18(a), 29.
Plaintiffs, interveners in an application for approval of a
transfer of control of corporate cablevision licensees before the
CRTC, made a preliminary objection to jurisdiction, arguing
that the CRTC had no legal power to grant a transfer of
control over a licence. The CRTC reserved decision on that
motion, proceeded to hear the application before it, and denied
the application and therefore dismissed the objection as to
jurisdiction. Rather than appealing to the Federal Court of
Appeal, plaintiffs apply to the Trial Division pursuant to
section I8(a) of the Federal Court Act for declarations that (a)
the CRTC did not have jurisdiction to hear and decide applica
tions for transfer of control over television licences, (b) if the
CRTC did have jurisdiction, the matter had to be dealt with as
an application for revocation of licence coupled with an
application for new licence, (c) notwithstanding denial of trans
fer of control, the application for revocation is still before the
CRTC and the Lower Fraser Valley Committee for Communi-
ty-Based Cablevision Services is still entitled to apply for the
licences, or (d) alternatively to (c), if the present licensee no
longer wishes to be responsible for the cable undertakings,
CCBCS is entitled to apply and be heard on the same footing
as any other applicant. Plaintiffs' position is that the denial of
the preliminary motion is not a "decision or order" of the
Commission within the meaning of section 26(1) of the Broad
casting Act and section 29 of thè Federal Court Act, while
defendants take the opposite view.
Held, the application is dismissed. The plaintiffs' remedy was
to apply to the Federal Court of Appeal for leave to appeal the
CRTC decision, on grounds of lack of jurisdiction, denying the
application for transfer of control. There is here only one
decision or order of the CRTC, and not, as plaintiffs argue, one
ruling on a preliminary motion, and a decision or order on the
merits. What plaintiffs are seeking to do is appeal one part of
the reasons of the Commission. It is a well-known principle that
in an ordinary appeal from a lower court to a higher court
(excluding trial de novo), what is appealed is the formal
judgment of the court, not its reasons.
Re Libby, McNeill & Libby of Canada Ltd. (1979) 91
D.L.R. (3d) 281, agreed with.
APPLICATION.
COUNSEL:
Andrew Roman for plaintiffs.
John Brunner for defendants Western Cable
Limited and M.S.A. Cablevision Limited.
J. D. Hilton for defendant Canadian Radio-
television and Telecommunications Commis
sion.
SOLICITORS:
Andrew Roman, Ottawa, for plaintiffs.
Minden, Gross, Grafstein & Greenstein,
Toronto, for defendants Western Cable Lim
ited and M.S.A. Cablevision Limited.
John M. Johnson, Ottawa, for defendant
Canadian Radio-television and Telecommuni
cations Commission.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The parties agreed, pursuant to
Rule 475, upon a special case stated for the opin
ion of the Court. That special case is attached to
these reasons.
In setting the matter for hearing the Associate
Chief Justice directed:
IT IS ORDERED that the said special case may be set down for
argument but it is reserved to the trial judge to determine, after
hearing argument, which of the questions submitted are proper
or necessary to be answered to determine the matters in issue in
the action and,
There were 7 questions submitted to the Court. I
heard argument only on question one:
I. Does the Trial Division of the Federal Court of Canada have
jurisdiction to entertain this action, or grant the relief sought in
the Statement of Claim herein, or in the alternative, ought the
Trial Division of the Federal Court of Canada to grant the
relief so claimed, in view of Section 29 of The Federal Court
Act, R.S.C. 1970 (2nd Supp.) C-10 as amended?
It appeared to me that if the answer to that
question was in the negative, the remaining ques
tions were academic.
The defendants, Western Cable Limited and
M.S.A. Cablevision Limited each held a licence to
operate a broadcasting receiving undertaking
(cablevision) in certain areas in British Columbia.
I shall refer to those two defendants as the licen
sees. The licences were issued by the other defend
ant (hereinafter "the CRTC").
Each licence contained certain conditions. The
relevant ones to this litigation are:
This licence shall be conditional on compliance by the licensee
with the provisions of the Broadcasting Act and the Regula
tions enacted thereunder.
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 incorporated
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-television and
Telecommunications Commission having been first obtained.
The licensed broadcasting undertaking shall be operated in fact
by the licensee in person or by bona fide employees of the
licensee; provided however, that this condition may be omitted
or rescinded by the Canadian Radio-television and Telecom
munications Commission.
This licence shall not be transferred or assigned; but the
Commission may amend the licence to show a change in the
name of the licensee company, if there is no change in control
of the company.
On October 19, 1976 the licensees applied to the
CRTC for approval of the transfer of control of
the companies to Maclean-Hunter Cable TV Lim
ited (hereinafter "Maclean-Hunter"). Maclean-
Hunter was to acquire all the issued shares of the
licensees.
The plaintiffs, other than the Canadian Broad
casting League (hereinafter "CBL"), are members
of an unincorporated association called the Lower
Fraser Valley Committee for Community-Based
Cablevision Services (hereinafter "CCBCS").
CCBCS wished to apply to the CRTC for a
cablevision licence in the area in question. If
granted, it proposed to operate the system on a
non-profit basis.
CBL is described in the special case as follows:
The plaintiff The Canadian Broadcasting League (hereafter
referred to as CBL) is a not-for-profit corporation with its head
office at 53 Queen Street, Ottawa, Ontario. The Canadian
Broadcasting League has worked in Canada for over forty
years to educate the public and otherwise to advance the
broadcasting system in Canada, including community-based
broadcasting, through inter alia, briefs, conferences, and pres
entations to regulatory bodies.
CBL and CCBCS were given the status of
interveners in order to oppose the application for
transfer of control. They took part in the public
hearing held by CRTC.
At the hearing CCBCS said it was willing to
prepare an application to the CRTC for the
licences held by the licensees, if the CRTC would
treat such an application "on a footing equal to
that of Maclean-Hunter".
On applications such as the one by the licensees
here, the practice of the CRTC is to treat it purely
as a matter of transfer of control of the licensed
undertaking; it does not, on that hearing, entertain
applications by others for issue to them of the
licences, or for the issue of new licences to replace
the existing ones; if the application for transfer of
control is granted, the licence itself remains unal
tered in the same corporate entity.
At the relevant times here, there were no
applications before the CRTC to revoke the two
licences, or to issue new licences.
At the outset of its submission at the hearing by
the CRTC, CBL made an application or motion.
CCBCS joined in it. Mr. Roman, counsel for CBL,
put it this way (Transcript, pages 432-435):
The purpose of the motion is to suggest that the C.R.T.C.
does not have the jurisdiction to come to a decision in this
matter and I'll provide reasons as to why I think that is the case
and that, therefore, the case ought to be adjourned with one of
two possible results.
In essence, our submission is this: the applicants, Maclean-
Hunter and Western have applied for something which this
Commission has no legal power to grant, namely a transfer of
control over a license. The Commission cannot grant this by
means of any of its statutory powers which include the power to
issue, revoke, renew or suspend a license.
A transfer of control is none of these. As a result, the
Commission cannot lawfully reach any decision in this case
either to approve or to deny this application for transfer; for an
attempt to do so is to decide a question and to confer a privilege
over which Parliament has given this Commission no power.
The only lawful way, in my respectful submission, in which the
Commission can at this time effect a transfer of license from
Western to Maclean-Hunter is to revoke Western's license in
accordance with Section 24-1A of the Broadcasting Act,
namely with the consent of the license holder and then to issue
a new license to Maclean-Hunter.
In looking at the question of the issue of a new license, the
Commission must come to its decision with an open mind and
without having decided in advance that it would be granted to
Maclean-Hunter. As with any other hearing for a new license
before this Commission, everyone who wants to apply must be
allowed to do so and the Commission must treat all of these
applications equally.
The Commission cannot give any weight to any submission
by the present licensee as to who he would like his successor to
be, nor be influenced by the existence of any purported agree
ment of sale.
Specifically, what I'm requesting is that the Commission
adjourn after our hearing today or preferably before the hear
ing and make no decision in this matter. Then in fairness to the
applicants in this case that the Commission advise these appli
cants for transfer, that their application may be withdrawn
without prejudice to themselves.
If, in that circumstance, the applicants want to keep their
application before the Commission, then the Commission
should advise them that it would become part of a public
hearing under Section 19-1A of the Broadcasting Act for the
issue of a new license.
In that hearing, other applicants may wish to apply for this
new license in competition with the present applicants for
transfer. If the applicants withdraw their application, that
presumably would end the matter. If not, we would move into
the type of public hearing I've just described.
Finally, we would request the Commission if they accept our
motion so far to make a public announcement to advise the
public, including prospective applicants, for any transfers for a
broadcast license or for a broadcast receiving undertaking
license that the Commission will no longer hear applications for
transfer of control, but will treat these as being a surrender of
license with an issue of a new license to follow after a normal
public hearing for a new license.
That's essentially what we're asking the Commission and I'd
like to give you our reasons why if it's clear what we're
requesting.
Mr. Roman then developed his submissions. At
the conclusion of the discussions on that motion
the chairman at the hearing said (page 461):
The motion made by the Canadian Broadcasting League has
serious implications, and merits further consideration by the
Commission. Accordingly, the Commission's decision on the
motion is reserved.
We will now proceed to hear the Application and Interven
tions in the usual manner, without prejudice to our consider
ation of the motion. The parties are here, ready to proceed and
we can safely hear the application without prejudicing any
rights.
The CRTC then went on to hear, on the merits,
the application for transfer of control.
CBL and CCBCS presented submissions oppos
ing the licensees' applications.
On April 15, 1977 the CRTC gave its decision
(CRTC 77-275). I set out the relevant portions:
Western Cablevision Limited
M.S.A. Cablevision Ltd.
Applications for approval of the transfer of control of:
a) Western Cablevision Limited
b) M.S.A. Cablevision Ltd.
to Maclean-Hunter Cable TV Limited through the acquisition
of all the issued shares of Western Cablevision Limited (1,090,-
533 common shares).
Decision: DENIED
The transfer of control of a licenced broadcasting undertaking
frequently results in additional financial obligations being
imposed, directly or indirectly, on the undertaking involved. In
such circumstances the Commission must be fully satisfied,
before granting approval, that such a transfer will not affect the
ability of the licensee to maintain existing broadcasting ser
vices; that it will benefit the subscribers and the communities
concerned; and that it is in the public interest.
In the present case, the Commission is not satisfied that the
proposed transactions would so benefit the subscribers and the
communities concerned.
At the hearing of the application, one of the interveners, the
Canadian Broadcasting League, made a preliminary motion to
the effect that the Commission lacks the statutory authority to
approve the transfer, directly or indirectly, of the effective
control of corporations licensed by the Commission to operate
broadcasting undertakings. The Commission heard argument
on the subject and reserved its decision on the motion.
After deliberating on this matter, the Commission is of the
opinion that it has the power under Sections 17, 15 and 3 of the
Broadcasting Act both to regulate and to approve the transfer
of effective control of corporate licensees. It finds support for
its view in the recent decision of the Federal Court of Appeal in
the case John Graham & Co. Ltd. v. CRTC (1976) 68 D.L.R.
(3d) 110. [[1976] 2 F.C. 82.]
The motion of the Canadian Broadcasting League in this
matter is accordingly dismissed.
The plaintiffs took no steps to appeal the deci
sion of the CRTC to the Federal Court of Appeal.
The relevant statutory provisions are as follows':
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.
(5) Any minute or other record of the Commission or any
document issued by the Commission in the form of a decision
or order shall, if it relates to the issue, amendment, renewal,
revocation or suspension of a broadcasting licence, be deemed
for the purposes of section 25 and this section to be a decision
or order of the Commission.
This action was then brought in the Trial Divi
sion of this Court [[1978] 1 F.C. 830], seeking,
pursuant to paragraph 18(a) of the Federal Court
Act', declaratory relief as follows [at page 832]:
' Broadcasting Act, R.S.C. 1970, c. B-11, as amended.
2 R.S.C. 1970 (2nd Supp.), c. 10.
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.
Another relevant statutory provision (referred to
in question 1) is section 29 of the Federal Court
Act:
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.
The plaintiffs' position is that the denial by the
CRTC of the preliminary motion is not a "decision
or order" of the Commission, within the meaning
of those words as found in subsection 26(1) of the
Broadcasting Act and section 29 of the Federal
Court Act.
The defendants take the opposite view. It is their
submission the plaintiffs' remedy was to apply to
the Federal Court of Appeal for leave to appeal
the CRTC decision, on grounds of lack of jurisdic
tion, denying the application for transfer of
control.
I agree with the defendants' submission.
There is here, in my view, only one decision or
order of the CRTC. Not, as the plaintiffs would
have it, one ruling on a preliminary motion, and a
decision or order on the merits. It was open to the
CRTC to dismiss the application for transfer of
control solely on jurisdictional grounds. It could
have gone along with the plaintiffs' view, and
refused to approve the transfer of control, on the
grounds it had no jurisdiction to hold a hearing
and decide on that matter, but must first revoke
the licences, then hold hearings in respect of new
licences. If that had been the CRTC's sole
grounds, the plaintiffs would have obtained all
they wanted including the blocking of the transfer
of control. But the licensees would, to my mind,
have been entitled to apply for leave to appeal, on
the jurisdictional ground, the denial of the
transfer.
It was also open to the CRTC to deny the
transfer application on the grounds in fact taken
here by the CRTC: we have jurisdiction, but the
application, on the merits, fails.
The plaintiffs were entitled, in my view, to ask
for leave to appeal on the grounds the CRTC had
no jurisdiction to come to the decision it did
(refusing to approve transfer of control). That, I
think, is so, even though the plaintiffs, (interven-
ers) had obtained one of their objects: the blocking
of the transfer.
The "decision or order" in this case was the
denial of the licensees' application. What the
plaintiffs are really seeking to do, in this litigation,
is appeal one part of the reasons of the Commis
sion. It is a well-known principle that in an ordi
nary appeal from a lower court to a higher court
(excluding trial de novo), what is appealed is the
formal judgment of the court, not its reasons.
A somewhat similar situation to the one here
was dealt with recently by the Ontario Court of
Appeal in Re Libby, McNeill & Libby of Canada
Ltd.' MacKinnon A.C.J.O., said, at page 282:
3 (1979) 91 D.L.R. (3d) 281.
While the Board declared that the threats were contrary to
the Act it declined to exercise its discretion to issue a direction
against further threats on the basis that there was an absence of
evidence of a history of such threats, and also because there
was, in the majority's view, no collective agreement in existence
at the time of the decision of the Board. The respondent
company moved for judicial review of the decision. It asked for
an order quashing the decision on the grounds that the Board
was either without jurisdiction or had exceeded its jurisdiction
in declaring the collective agreement null and void from Febru-
ary 7, 1977, onward. Counsel for the company candidly
acknowledged that when the matter was before the Divisional
Court he was not attacking the declaration which his client had
of course asked for, nor was he asking the Divisional Court to
quash the refusal of the Board to issue a cease and desist order
and to remit the matter to the Board. What he was concerned
with and what he wished reviewed was the statement by the
Board in the course of its decision that the collective agreement
was at an end as of February 7, 1977. The formal order of the
Divisional Court, in effect, and understandably based on the
argument before that Court, set aside a portion of the reasons
for judgment which portion, in our view, was not necessary to
the decision of the Board. The Divisional Court did not deal
with the actual decision of the Board.
Counsel for all parties acknowledge that what was quashed
or set aside by the Divisional Court was not the decision of the
Board declaring that there was a collective agreement in effect
at the relevant time and refusing to issue the requested cease
and desist order, and it certainly was not a part of the applica
tion or relief sought by the company before the Board.
Although we are unhappy about the result, and we can under
stand the parties' anxiety to have the issue raised in the appeal
resolved, we cannot see our way clear to hearing submissions
with relation to an attack on a portion of the reasons of a
tribunal. To proceed in such a way could have even unhappier
results from the standpoint of practice and procedure. The
judicial review process relates to attacks on decisions of tri
bunals, and, although the reasons of a tribunal may be referred
to to ascertain whether the decision has been arrived at by
reviewable error, a portion of the reasons cannot be attacked
and quashed leaving the decision itself intact. We are all of the
view that the proceedings were misconceived from the date of
the Board's decision and we are not in a position to reconstitute
them.
Question 1 is, therefore, answered in the
negative.
The formal order should, in my view, provide for
dismissal of the action. I shall not issue the pro
nouncement until counsel have, if they wish, made
representations. Those can be in writing and
arranged through the registry.
Court No. T-2365-77
IN THE FEDERAL COURT OF CANADA
TRIAL DIVISION
BETWEEN:
STEPHEN CHITTY, DOROTHIA ATWATER, WAYNE KERR,
SHARRON LANG, DAVID COULSON, ULLA SORRENSON, PETER
HAY, and the CANADIAN BROADCASTING LEAGUE,
Plaintiffs
-and-
THE CANADIAN RADIO-TELEVISION AND
TELECOMMUNICATIONS COMMISSION, WESTERN CABLE
LIMITED and M.S.A. CABLEVISION LIMITED
Defendants
SPECIAL CASE STATED FOR THE OPINION OF THE COURT
PURSUANT TO RULE 475 OF THE GENERAL RULES OF THE
COURT
The parties concur on the following statement of facts:
I. The plaintiffs Stephen Chitty, Dorothia Atwater, Wayne
Kerr, Sharron Lang, David Coulson, Ulla Sorrenson and Peter
Hay are members of an unincorporated association known as
the Lower Fraser Valley Committee for Community-Based
Cablevision Services (hereafter referred to as CCBCS), and
wish to apply for a cable television licence from the Canadian
Radio-Television and Telecommunications Commission. If
granted such a licence CCBCS would operate its cable systems
on a not-for-profit basis.
2. The plaintiff The Canadian Broadcasting League (hereafter
referred to as CBL) is a not-for-profit corporation with its head
office at 53 Queen Street, Ottawa, Ontario. The Canadian
Broadcasting League has worked in Canada for over forty
years to educate the public and otherwise to advance the
broadcasting system in Canada, including community-based
broadcasting, through inter alia, briefs, conferences, and pres
entations to regulatory bodies.
3. The defendant The Canadian Radio-television and Telecom
munications Commission (hereafter referred to as the CRTC)
is the regulatory body established by The Broadcasting Act,
R.S.C. 1970 c. B-11 to regulate and supervise all aspects of the
Canadian Broadcasting system.
4. Western Cablevision Limited and its wholly-owned subsidi
ary MSA Cablevision Limited (hereinafter together referred to
as the "Two Cable Licensees") are each bodies corporate.
5. At all material times, the New Westminster, Surrey,
Abbotsford and Clearbrook areas of British Columbia were,
and still are, receiving cable television service from one or the
other of the Two Cable Licensees, pursuant to two licences
(hereafter called the "Licences") to operate a broadcasting
receiving undertaking issued by the defendant, CRTC, one to
each of the Two Cable Licensees, for the period April 1, 1976
to March 31, 1979 inclusive, which Licences are presently
valid, subsisting and in good standing. A broadcasting receiving
undertaking includes a cable system made up of a head-end,
studios, trunk cables, electrical equipment and drops to
individual households and residences. To implement the
licences and to provide the cable services, the licensees have
entered into various agreements with B.C. Telephone Company
and the City of New Westminster. Western Cablevision Lim
ited has approximately 600 miles of cable and services some
53,000 subscribers. The Defendant, M.S.A. Cablevision Lim
ited has approximately 120 miles of cable and services approxi
mately 9,700 subscribers.
6. Each of the Licences contains, inter alia, the following
express conditions:
This licence shall be conditional on compliance by the licen
see with the provisions of the Broadcasting Act and the
Regulations enacted thereunder.
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 permis
sion of the Canadian Radio-television and Telecommunica
tions 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-
television and Telecommunications Commission having been
first obtained.
The licensed broadcasting undertaking shall be operated in
fact by the licensee in person or by bona fide employees of
the licensee; provided however, that this condition may be
omitted or rescinded by the Canadian Radio-television and
Telecommunications Commission.
This licence shall not be transferred or assigned; but the
Commission may amend the licence to show a change in the
name of the licensee company, if there is no change in
control of the company.
7. On October 19, 1976 the Two Cable Licensees each filed an
application with the defendant, CRTC, for approval of the
transfer of control of Western Cablevision Limited and M.S.A.
Cablevision Limited to Maclean-Hunter Cable T.V. Limited
(hereafter referred to as Maclean-Hunter) through the acquisi
tion by Maclean-Hunter of all the issued shares of Western
Cablevision Limited from the present shareholders of the latter.
8. On the 10th day of January 1977, CBL, supported by
CCBCS filed an intervention statement opposing the said
applications, and thereby became Intervenors in accordance
with the CRTC rules. In support of their interventions, CCBCS
and CBL attended the defendant's public hearing of the matter
commencing the 25th day of January 1977 in Vancouver,
British Columbia.
9. The preparation of an application for a CRTC licence can
be an undertaking requiring the investment of a considerable
amount of effort, as well as money, for legal, accounting and
other expert's fees.
10. CCBCS indicated at the public hearing in Vancouver that
it would be willing to prepare an application for the licences
held by the Two Cable Licensees, and to submit such applica
tion to the CRTC, should the latter indicate a readiness to treat
this application for the licences on a footing equal to that of
Maclean-Hunter.
11. The defendant, CRTC's practice with respect to the instant
applications was, consistent with its practice in similar cases, to
treat the matter as an application pursuant to the conditions of
licence, for approval of the transfer of control of the broadcast
ing undertaking licensed, with the licence itself remaining
unaltered in the same corporate entity. In such circumstances,
no application by any party for the issue to it of the licence, or
for a new licence to replace the existing licence, is entertained
by the defendant CRTC.
12. The custom of the defendant, CRTC is to allow to be
outstanding at one time, only one broadcasting receiving under
taking licence to provide service to any given area.
13. There was no application in fact before the defendant,
CRTC to revoke the Licences, nor was there an application in
fact by any person or corporation for the issuance of a new
licence. The sole applications in fact before the defendant
CRTC, were the ones filed by the Two Cable Licensees as
referred to in paragraph 7 hereof.
14. The Two Cable Licensees at no time in fact, expressly or
by implication, applied to the defendant, CRTC, for or consent
ed to, a revocation of the Licences.
15. The defendant, CRTC, has at no time purported to act
pursuant to Section 24 of The Broadcasting Act to revoke the
Licences.
16. Maclean-Hunter at no time applied to the defendant,
CRTC, for the issuance to it of broadcasting receiving under
taking licences authorizing it to provide cable television service
to those areas now subject to the Licences.
17. None of the plaintiffs has applied to the defendant CRTC,
for the issue to any one or more of them, or any body controlled
by them, of broadcasting receiving undertaking licences author
izing the provision of cable television service to all or any part
of those areas now subject to the Licences.
18. On the 15th day of April 1977 the CRTC issued its
decision CRTC 77-275 in which it denied the applications for
its consent to the proposed transfer of control, and dismissed
the motions of CBL and CCBCS which alleged that the
Commission did not have jurisdiction to deal with such applica
tions for transfer of effective control.
19. No appeal was taken by the plaintiffs, or any of them, to
the Federal Court of Appeal from the decision of the defend
ant, CRTC, dated April 15, 1977 herein, pursuant to The
Broadcasting Act.
20. The defendant CRTC, has not treated the conditions of
licence referred to in paragraph 6 hereof as if they were
Regulations or other Statutory Instruments, to be processed
pursuant to The Statutory Instruments Act.
21. The following documents are referred to and form part of
this case:
1) The Broadcasting Act and the CRTC Rules of Procedure
made thereunder.
2) The two Licences granted to the Two Cable Licensees.
3) The applications by the Two Cable Licensees to the Com
mission for transfer of effective control to Maclean-Hunt
er.
4) The intervention statement of CBL.
5) The intervention statement of CCBCS.
6) Such portions of the transcript of the hearing that include
submissions by the Two Cable Licensees and the interven-
ors, questions by Commissioners or Counsel for the
defendant, and answers thereto.
7) CRTC Decision 77-275.
8) Copy of CRTC telex message from Guy Lefebvre dated
October 19th, 1976 to Mr. John Young of Capital Cable
Co-operative outlining Commission policy re applications
by third parties for a licence during a Commission hearing
dealing with transfers of effective control.
QUESTIONS FOR THE COURT
1. Does the Trial Division of the Federal Court of Canada have
jurisdiction to entertain this action, or grant the relief sought in
the Statement of Claim herein, or in the alternative, ought the
Trial Division of the Federal Court of Canada to grant the
relief so claimed, in view of Section 29 of The Federal Court
Act, R.S.C. 1970 (2nd Supp.), C-10 as amended?
2. Do the plaintiffs, or any of them, have the right in law, to
now question whether the defendant, CRTC, had jurisdiction,
to entertain the applications filed by Western Cablevision
Limited and M.S.A. Cablevision Limited, and to issue its
decision dated April 15, 1977?
3. Do The Broadcasting Act, the Regulations thereunder, and
the Rules of Procedure of the defendant, CRTC, give the
defendant CRTC the authority to insert the conditions of
licence set forth in paragraph 6 hereof in a broadcasting
receiving undertaking licence issued by it?
4. If the answer to the previous question is yes, must the
conditions of licence comply with the provisions of The Statu
tory Instruments Act, and if so do such conditions of licence
comply therewith?
5. Does the defendant CRTC, have jurisdiction to hear and
determine an application for approval of the transfer of control
of a corporate broadcasting undertaking licensee, through the
transfer of the issued shares of the said licensee?
6. Should the defendant, CRTC, have treated the applications
by the Two Cable Licensees as applications for the revocation
of the broadcasting undertaking licences issued to them, cou
pled with an application for a new licence in the same areas?
7. Does the acceptance or hearing by the CRTC of an applica
tion for transfer of the effective control of a corporation holding
a broadcasting licence, by means of transfer of shares, in the
context of The Broadcasting Act, constitute in law the surren
der and revocation of the existing licence?
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.