T-775-78
Radio Inter -Cité Inc. and Radio Drummond
Limitée (Petitioners)
v.
Canadian Radio-television and Telecommunica
tions Commission (Respondent)
and
Radio des Plaines Limitée (Mis -en-cause)
Trial Division, Walsh J.—Montreal, February 27;
Ottawa, March 2, 1978.
Prerogative writs — Prohibition — CRTC hearing approv
ing first stock transfer under judicial review and appeal —
Second hearing set to consider another transfer of same stock
— Petitioners seek prohibition of hearing — Argued that
second transfer would make appeal illusory and prejudice its
rights — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
ss. 18 and 28.
Petitioners seek a writ of prohibition against respondent
requiring it to suspend a hearing, set for April 4, 1978, to
consider the application of the mis -en-cause for a stock trans
fer. An earlier stock transfer, involving the same stock, had
received CRTC approval, but petitioners sought judicial review
of that hearing and also appealed the decision to the Court of
Appeal. Petitioners seek to delay the hearing until after the
Court of Appeal has rendered its decision, arguing that approv
al of the second stock transfer would render the appeal illusory
and would be prejudicial to the petitioners' rights.
Held, the application is denied. Petitioners in effect seek the
issuance of the writ on a quia timet basis. The question of
expediency, however, cannot be taken into consideration in
deciding if a writ of prohibition should issue if the facts of the
matter do not legally justify its issuance. If the appeal and
section 28 application against the earlier decision is dismissed,
there will be no reason for opposing the hearing of an applica
tion for a second transfer. Similarly, the Board could, on
representations of its own motion, agree to a suspension of the
hearing. Then, too, the Court of Appeal may have heard the
matter and rendered its decision before the date set for the
hearing. The CRTC, furthermore, was legally obliged to set a
date for a hearing; to postpone it because of matters irrelevant
to the discharge of its duty would be to decline jurisdiction. The
decision to hold a hearing, to set dates, and to postpone are
merely administrative matters and not subject to the Court's
review.
Canadian Pacific Railway v. The Province of Alberta
[ 1950] S.C.R. 25, considered.
APPLICATION.
COUNSEL:
Jacques Rossignol for petitioners.
Denis Hardy for respondent.
Bernard Courtois for mis -en-cause.
SOLICITORS:
Lapointe, Rosenstein, Konigsberg & Delorme,
Montreal, for petitioners.
Gourd, Mayrand & Brunet, Montreal, for
respondent.
O'Brien, Hall, Saunders, Montreal, for
mis -en-cause.
The following are the reasons for judgment
rendered in English by
WALSH J.: Petitioners seek a writ of prohibition
against respondent requiring it to suspend the
hearing set for April 4, 1978, with respect to
application no. 780230900 presented by Radio des
Plaines Limitée until the Federal Court of Appeal
has rendered a decision in the proceedings before it
bearing No. A-239-77. The facts are set out in the
accompanying affidavit by the President of peti
tioners who states that on December 14, 1976,
respondent, hereinafter designated as CRTC,
heard an application no. 760861500 presented by
the mis -en-cause Radio des Plaines Limitée to
transfer the control of it by approving the transfer
of 5,205 ordinary shares comprising 61.2% of such
shares and 4,890 preferred shares comprising
63.8% of such shares from five of the seven share
holders to the two who remained and five new
shareholders. On March 30, 1977, CRTC
approved the transfer. On April 14, 1977, petition
ers instituted an application under section 28 of
the Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, to review and set aside the decision said
application being given file no. A-239-77, and on
July 7, 1977, petitioners instituted an appeal in the
Federal Court of Appeal against the said decision
under no. A-476-77. By judgment of the Chief
Justice rendered on October 5, 1977, the two
applications were joined for hearing under no.
A-239-77. On January 19, 1978, under directions
of the Chief Justice petitioners' counsel was
advised that unless some action was taken by them
by February 15, 1978, the Court would have to
consider whether some action should be taken by it
with respect to these applications, bearing in mind
the requirements of section 28(5) of the Federal
Court Act requiring that the application be heard
and determined without delay in a summary way.
As a result of this petitioners' memorandum was
filed on February 15, 1978, but at the date of the
hearing of the present application before this
Court for a writ of prohibition in the present
proceedings on February 27, 1978, respondent's
counsel indicated that he had not yet received a
copy of this so was not in a position to reply. In
any event it is apparent that with reasonable dili
gence on the part of respondent the matter could
be made ready for hearing before the Court of
Appeal at an early date.
Meanwhile on February 13, 1978, CRTC
received a new request for permission to transfer
shares from Radio des Plaines Limitée by virtue of
which three individuals proposed to buy all the
shares presently held by seven shareholders pursu
ant to the earlier transfer approval granted by the
CRTC. As the result of this application the CRTC
published a notice of public hearing of the applica
tion for April 4, 1978, at 9:00 a.m.
Petitioners contend that if as a result of this
hearing the CRTC should approve the further
request for transfer of the said shares the appeal to
the Federal Court of Appeal concerning the
approval of the earlier transfer would be illusory
and the transfer would be prejudicial to the rights
of petitioners.
There is no real dispute as to the facts, and there
is no doubt that should the petitioners be success
ful in their appeal or section 28 application before
the Court of Appeal and its decision become final
a difficult situation would be created if in the
meanwhile the CRTC had given permission to the
acquirers of the said shares by virtue of its earlier
decision to re-transfer them to third parties as the
result of a second decision. Petitioners' counsel
contends that it is desirable to stop further pro
ceedings on the second application before the
CRTC until the appeals have been disposed of,
rather than await a second decision made while the
said appeals are pending and then bring certiorari
proceedings or further appeal or section 28
application against it. I do not believe that the
question of expediency can be taken into consider
ation however in deciding whether a writ of prohi-
bition should issue if the facts of the matter do not
give legal justification for the issue of such a writ.
In effect petitioners are seeking the issue of it on a
quia timet basis. If the appeal and section 28
application against the earlier decision is dismissed
then there will be no reason whatsoever for oppos
ing the hearing of an application for a second
transfer. Similarly the Board itself could on the
representations of petitioners, of its own motion,
agree to a suspension of the hearing fixed for April
4, 1978. If either of these events arose then there
would be no need for a writ of prohibition to order
the suspension of the hearing. It is even possible
that the Court of Appeal will have heard the
matter and rendered its decision before April 4,
1978.
This is not the only reason why a writ of prohi
bition should not issue however. Counsel for mis -
en-cause pointed out that CRTC was obliged to set
a date for hearing of the application for transfer of
the shares and that if it failed to do so could be
compelled to by mandamus. He further stated that
his client would oppose any postponement to the
hearing while awaiting the outcome of an appeal
respecting the earlier transfer, which might con
ceivably be appealed further to the Supreme
Court, raising the possibility of lengthy delays to
the prejudice of mis -en-cause and the purchasers
of the shares, the approval of which purchase is
sought in the application in question. In this con
nection he referred to the Supreme Court case of
Canadian Pacific Railway v. The Province of
Alberta' of which the headnote reads:
The Board of Transport Commissioners, being a court of
record, cannot postpone determination of an application for an
increase in freight rates by reason of matters entirely irrelevant
to the proper discharge of its duty to decide such question. To
do so would amount, in effect, to a declining of jurisdiction.
Counsel for respondent pointed out that the deci
sion to hold a hearing, the date of same and any
postponements of the hearing are purely adminis
trative matters not subject to review by the Court.
I agree with this view and find that no writ of
prohibition can issue or should issue in the present
case.
' [1950] S.C.R. 25.
The petition for a writ of prohibition is therefore
dismissed with costs.
ORDER
The petition for a writ of prohibition is dis
missed with costs.
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