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T-5774-78
Saskatchewan Tek -Communications (Applicant) v.
Canadian Radio-television and Telecommunica tions Commission, Cablenet Limited, Estevan, C.A.T.V. Co-operative, Eston, Sask., Community T.V. Limited, Prince Albert, Sask., Prairie Co-Ax T.V. Limited, Moose Jaw, Sask., The Battleford Community Cablevision Co-operative, North Bat- tleford, Sask., Regina Cablevision Co-operative, Regina, Sask., Saskatoon Telecable Limited, Sas- katoon, Sask. (Respondents)
Trial Division, Maguire D.J.—Saskatoon, January 30; Regina, May 1, 1979.
Broadcasting — Prerogative writs — In application before the CRTC for renewal of broadcasting licences, applicant submitted written intervention conforming in form and content to the requirements of the Act and Rules — CRTC decided that applicant without status as intervener in proposed hear ings — Decision made without notice or hearing and announced at opening of CRTC hearing to consider renewal applications — Whether or not relief should be granted from that CRTC decision — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18 — Broadcasting Act, R.S.C. 1970, c. B-11, ss. 19(2),(3), 26(5) — CRTC Rules of Procedure, SOR/71-330, s. 14(b).
Canadian Radio-television and Telecommunications Com mission gave notice of public hearings in respect of applications by the respondents (other than the Commission) for renewal of their broadcasting licences, and in two instances, for an increase in monthly fees charged subscribers. Applicant sub mitted written interventions conforming in form and content to the requirements of the Act and Rules. On the opening of the sittings of the Commission panel the Chairman stated that the permanent members of the Commission had decided that appli cant did not have status of intervener. Applicant claims that the Commission is without jurisdiction to hear and determine the applications because: (1) it denied applicant status as an inter- vener although it was one as of right pursuant to the Broad casting Act and the CRTC Rules of Procedure; (2) it deter mined applicant to be without status as an intervener before giving applicant an opportunity to be heard on the subject of its status, and without notice that its status was in question; (3) it made known its intention to deny applicant the right to reply to representations in favour of the applications for renewal and the right to make demands for further information. Alterna tively, applicant argues that the Commission lost jurisdiction;
(4) when it refused to grant an adjournment so the question of status of intervener could be determined by the Federal Court;
(5) when it reserved the question of applicant's status without adjourning the applications for licence renewals, depriving applicant of an opportunity to answer the cases of the appli-
cants for renewal; further, and alternatively (6) a reasonable apprehension of bias on the part of the Commission was created by the preceding reasons numbered 2, 3, 4, 5, whether individu ally or in concert.
Held, the application is granted, except with respect to one notice. The Commission's decision that the applicant did not have the status of an intervener cannot be construed as a decision of the Commission within section 25 of the Broadcast ing Act. The application for renewal brings each application by respondents within section 19(3). No specific provision in the Act or Regulations supports the argument that the Commission must have power to determine whether a submission filed is an intervention or a representation. Where, as here, the submission is filed in the form of an intervention, contains what the Act and Regulations require of an intervention, and otherwise meets the requirements of the Act and Regulations, the Com mission cannot treat it as a representation rather than an intervention. In respect of the application for renewal of licence by Eston C.A.T.V. Co-operative, Saskatchewan Tele-Com munications in its notice of intervention set forth relevant facts in respect of which there is no dispute. Under these circum stances no ground for prohibition relative to this particular application for renewal of licence has been established.
APPLICATION. COUNSEL:
G. Taylor, Q.C. for applicant.
S. Halyk, Q.C. for respondent Canadian Radio-television and Telecommunications Commission.
P. Miquelon for respondent Cablenet Lim ited.
R. Caskey for respondent C.A.T.V. Co-opera tive, Eston, Saskatchewan.
J. Beke for respondent Regina Cablevision Co-operative, Regina, Saskatchewan.
R. Laing for respondent Saskatoon Telecable Limited, Saskatoon, Saskatchewan.
SOLICITORS:
Goldenberg, Taylor, Randall, Buckwold & Halstead, Saskatoon, for applicant.
Halyk, Priel, Stevenson & Hood, Saskatoon, for respondent Canadian Radio-television and Telecommunications Commission.
Agra Industries, Saskatoon, for respondent Cablenet Limited.
R. Caskey, Eston, for respondent C.A.T.V. Co-operative, Eston, Saskatchewan.
Griffin, Beke & Thorson, Regina, for respondent Regina Cablevision Co-operative,
Regina, Saskatchewan.
McKercher, McKercher, Stack, Korchin & Laing, Saskatoon, for respondent Saskatoon Telecable Limited, Saskatoon, Saskatchewan.
The following are the reasons for order ren dered in English by
MAGUIRE D.J.: Canadian Radio-television and Telecommunications Commission (the Commis sion) under order of October 5, 1978, gave notice of public hearings in respect to applications by the above named respondents (other than the Commis sion) for renewal of broadcasting licences held by said respondents, plus in two instances separate applications for an increase in monthly fees chargeable to subscribers of cable television service.
Applicant under date of November 9, 1978, or November 10, 1978, submitted written interven tions relative to said applications, in accordance with sections 13, 14 and 15 of the Commission's Rules of Procedure. No reply to these interven tions was given by any of said respondents, as permitted by section 16 of the Rules of Procedure.
Counsel for Regina Cablevision Co-operative submitted that the intervention filed in respect to said respondent did not state that applicant opposed the renewal of the licence as required by section 14(b) of the Rules. Section 14(b) reads:
14. ...
(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;
I consider that this intervention meets the requirements of the section.
This application is made upon the following grounds, namely:
1. The Commission is without jurisdiction to hear and deter mine the said applications because it has denied Applicant status as an intervenor, a status the said Applicant has as of right by virtue of the provisions of The Broadcasting Act, RSC, c. B-11, as amended, and the CRTC Rules of Procedure made under s. 21 thereof as SOR/71-330 and published in the Canada Gazette, July 28, 1971, p. 1154, as amended.
2. The Commission is also without jurisdiction because it determined that the Applicant had no status as an intervenor before giving the Applicant an opportunity to be heard on the subject of its status and without notice that its status was in question.
3. The Commission is further without jurisdiction because it has made known its intention to deny the Applicant the right to make reply to the representations in favour of the said applica tions for renewal of cable T.V. licences at the public hearing at which they are to be considered and to make demands for further information at the said hearings.
4. In the alternative, the Commission lost any jurisdiction it might have had when it refused a request to grant an adjourn ment so that the question of the status of the Applicant as an intervenor might be tested by application to the Federal Court thereby depriving the Applicant of a reasonable opportunity to answer the case put by the Applicants for licence renewals.
5. Further, the Commission lost jurisdiction when it reserved the question of the Applicant's status to be decided at a later time in Ottawa without adjourning the said applications for licence renewals thereby depriving the Applicant of a reason able opportunity to answer the cases made by the applicants for licence renewals without determining whether the Applicant had the right as an intervenor to make answer to the said cases or not.
6. Further, and also in the alternative, that the Commission is without jurisdiction because the circumstances set out in the preceding paragraphs numbered "2", "3", "4", and "5" individually and in concert are sufficient to create a reasonable apprehension of bias on the part of the Commission.
On the opening of the sittings of the Commis sion panel the Chairman stated that the permanent members of the Commission had decided that the applicant did not have the status of an intervener. I cannot construe this to be a decision of the Commission within section 25 of the Broadcasting Act, R.S.C. 1970, c. B-11, as defined by section 26(5), which reads:
26....
(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.
Section 19(3) of the Act determines here the procedure to be followed, not section 19(2) as submitted in his written argument by counsel for Regina Cablevision Co-operative.
Section 19(3) reads:
19....
(3) A public hearing shall be held by the Commission in connection with the renewal of a broadcasting licence unless the Commission is satisfied that such a hearing is not required and, notwithstanding subsection (2), 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.
No evidence was submitted indicating that the Commission or its Executive Committee was satis fied or had held such a hearing was not required. No specific provision is found in the Act or Regu lations permitting such a decision by the Commis sion when interventions complying with the Act and Regulations have been filed. It may be that such a decision could be made when the issues raised by an intervention are acceptable to the Commission. This is not an issue and I make no specific finding relative thereto.
It was admitted by counsel for Regina Cablevi- sion Co-operative that notice of public hearing had been given pursuant to section 27 of the Rules.
Here certain of the respondents did apply for an amendment to the licence held, and shortly expir ing. The application for renewal, however, brings each application by the respondents within said section 19(3) of the Act.
In respect to the application for renewal of licence by Eston C.A.T.V. Co-operative, Saskatch- ewan Tele-Communications in its notice of inter vention set forth relevant facts in respect to which there is no dispute. It stated that it supported the application for renewal of licence, adding a request for a change in the licence requiring the licensee to own amplifiers and drops to house. It also stated that it did not wish to appear on a hearing before the Commission.
Under these circumstances no ground for prohi bition relative to this application for renewal of licence has been established. This application is dismissed. Counsel for this respondent submitted no argument. There will be no order re costs.
It was argued that the Commission must have power to determine whether a submission filed is an intervention or a representation. No specific provision to this effect appears in the Act or Regulations. Where, as here, the submission is filed in the form of an intervention, contains what the Act and Regulations require of an interven-
tion, and otherwise meets the requirements of the Act and Regulations, the Commission cannot in my opinion treat it as a representation, rather than an intervention.
1 am concerned by the fact that applicant's requests contained in a number of its notices of intervention are relative to the minimum require ments placed on licensees for ownership of certain facilities as last set, in part, by the decision of the Commission dated February 14, 1978. This mini mum requirement comes from extensive consider ation of federal government and provincial govern ment policies, and the functions and duties placed on the Commission by legislation. I cannot, how ever, find any legislative or other provision barring an intervener from requesting change to these and other established minimum requirements. The Commission may readily refuse to grant any such request, if it considers that the policy set by earlier decision or decisions should be maintained.
In result many of the facts set forth and requests made in the several notices of intervention require consideration by the Commission, following a public hearing held in accordance with the Act and Regulations, with the intervener recognized as such.
I must therefore grant the application save in respect to the one notice first referred to.
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