T-1161-84
Wah Shing Television Ltd. and Partners (Appli-
cants)
v.
Canadian Radio-television and Telecommunica
tions Commission (Respondent)
Trial Division, Strayer J. Ottawa, June 19 and
21, 1984.
Judicial review — Prerogative writs — Mandamus —
Broadcasting — Licensing — CRTC refusing to disclose which
Executive Committee members participated in decision and
whether members concurred or dissented — Natural justice —
Where duty to provide fair hearing, parties must be able to
find out which tribunal members participated in decision-
making — No duty to disclose position taken by individual
commissioners — Tribunals and courts not required to delib
erate in public — Mandamus granted, statutory appeal or s.
28 review application not being equally satisfactory remedies
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28
Federal Court Rules, C.R.C., c. 663, RR. 1301, 1402.
Broadcasting — Licensing — CRTC refusing to disclose
which Executive Committee members participated in decision
and whether members concurred or dissented — Statute not
prohibiting disclosure of participants' names — Commission
had duty to disclose which members participated in licensing
decision — Legislation not requiring disclosure of position
taken by individual members — Mandamus granted as appro
priate remedy although appeal under Broadcasting Act possi
ble — Broadcasting Act, R.S.C. 1970, c. B-11, s. 26 —
Canadian Radio-television and Telecommunications Commis
sion Act, S.C. 1974-75-76, c. 49.
COUNSEL:
Ian Blue for applicants.
Kenneth Katz for respondent.
SOLICITORS:
Cassels, Brock & Blackwell, Toronto, for
applicants.
A. Cohen, General Counsel, Canadian Radio-
television and Telecommunications Commis
sion, Hull (Quebec), for respondent.
The following are the reasons for order ren
dered in English by
STRAYER J.: It is common ground that the
proceedings before the CRTC leading up to licens
ing decisions CRTC 84-445 and 84-446 required a
fair hearing and it is not suggested that there was
any denial of natural justice in reaching those
decisions. The applicants herein contend instead
that the refusal of the Commission to divulge later
which commissioners who are members of the
Executive Committee participated in each of these
decisions, and whether each of them joined in or
dissented from the decision reached, was also a
denial of natural justice and one which can be
ordered corrected by this Court by mandamus.
I am satisfied that where there is a legal duty to
provide a fair hearing, it is a corollary of that duty
that the interested parties be able to ascertain
which members of the tribunal have participated
in making such a decision affecting them. If they
cannot so ascertain, they are effectively denied
rights they may otherwise have to attack this
decision, e.g., for bias, real or apprehended, this
being a lawful means for them to enforce the
requirements of natural justice even after the deci
sion is made. While a statute might effectively
preclude such disclosure I was referred to no law
which has that effect here. Therefore the Commis
sion has a lawful duty to disclose which members
participate in a final decision concerning licences.
This it refuses to do with respect to decisions
CRTC 84-445 and 84-446.
I find no comparable duty with respect to dis
closing the position which individual commission
ers take with respect to a Commission decision.
Certainly no tribunal, not even a court, is required
to carry on its final deliberations in public.
Although appellate courts typically reveal the posi
tions individual judges take with respect to the
collective judgment of the Court, this is not intrin
sic to giving a fair hearing nor to ensuring the
basis for judicial review of non-curial decisions.
(Indeed, it might be noted that the Judicial Com
mittee of the Privy Council for over a century
issued but one opinion in any cause, without
revealing whether there were, or identifying, dis-
senting members.) The Broadcasting Act, R.S.C.
1970, c. B-11, and the Canadian Radio-television
and Telecommunications Commission Act, S.C.
1974-75-76, c. 49, are silent on the matter and
indicate no statutory duty to disclose the position
taken by individual members of the Executive
Committee.
It is therefore open to the Court to issue man-
damus to require disclosure of the names of mem
bers of the Commission participating in licensing
decisions. While I should, of course, be reluctant
to issue mandamus where other remedies are
available, I am not satisfied that there are any
remédies equally satisfactory to a party in the
position of the applicants herein. While it can
possibly commence an appeal in the Federal Court
of Appeal under section 26 [as am. by R.S.C. 1970
(2nd Supp.), c. 10, s. 65] of the Broadcasting Act,
or seek review there under section 28 of the Feder
al Court Act, R.S.C. 1970 (2nd Supp.), c. 10, it is
not apparent that under the requirements for dis
closure by the tribunal relevant to such proceed
ings (respectively Rules 1301 and 1402 [of the
Federal Court Rules, C.R.C., c. 663]) the Com
mission would be obliged to divulge such informa
tion. Moreover, the applicants need this informa
tion before they can intelligently launch any
proceeding and should have it now.
I will only order such disclosure with respect to
CRTC 84-446 since it was only with respect to
that decision that the applicants made a demand
for such information prior to launching this
motion. I note also that the material filed on the
motion referred in error to CRTC 84-445 only but
as the issues are the same in respect of both
decisions, and in my view the applicants have an
interest in both, I do not think the respondent has
been prejudiced in any way by this error. I am
issuing the order only with respect to CRTC
84-446, although I assume that the decision will
assist the parties to deal appropriately with CRTC
84-445.
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.