A-26-79
Canadian Broadcasting League (Applicant)
v.
Canadian Radio-television and Telecommunica
tions Commission, Rogers Telecommunications
Limited and Canadian Cablesystems Limited
(Respondents)
[No. 1]
Court of Appeal, Ryan and Le Dain JJ. and
MacKay D.J.—Toronto, March 20 and 22;
Ottawa, June 19, 1979.
Judicial review — Telecommunications — Application to
quash application by CBL for judicial review of CRTC deci
sion approving transfer to RTL of effective control of broad
casting undertakings controlled by CCL — Application based
on lack of status and on contention that a s. 28 application is
barred by s. 29 of the Federal Court Act because of the right to
appeal to this Court under s. 26 of the Broadcasting Act on a
question of law or jurisdiction — Since all the grounds of
attack against the CRTC decision may be raised by way of
appeal pursuant to s. 26 of the Broadcasting Act, s. 28
application quashed — Unnecessary to deal with question of
status — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
ss. 28, 29 — Broadcasting Act, R.S.C. 1970, c. B-II, s. 26.
APPLICATION for judicial review.
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 by Rogers
Telecommunications Limited ("RTL") for an
order, pursuant to section 52(a) of the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, quash
ing an application under section 28 of the Act by
the Canadian Broadcasting League ("CBL") to
review and set aside Decision 79-9 of January 8,
1979 by which the Canadian Radio-television and
Telecommunications Commission ("CRTC")
approved a transfer to RTL of the effective control
of broadcasting undertakings controlled by
Canadian Cablesystems Limited ("CCL").
This application was heard at the same time as
the application by RTL in Court File No. 79-A
305 (infra, p. 396) for an order to quash an
application by the CBL for leave to appeal, pursu
ant to section 26 of the Broadcasting Act, R.S.C.
1970, c. B-11, from the same decision of the
CRTC. The reasons for judgment on that applica
tion to quash, which was based on the ground that
the CBL lacked status to appeal, indicate the
nature of the proceedings before the CRTC, the
participation of the CBL, and the grounds on
which the CBL seeks to attack the decision of the
CRTC.
The application to quash the section 28 applica
tion is also based on lack of status, but it is based
as well on the contention that a section 28 applica
tion is barred in this case by section 29 of the
Federal Court Act because of the right of appeal
to this Court under section 26 of the Broadcasting
Act on a question of law or jurisdiction. Since in
my opinion the Court is without jurisdiction to
entertain the section 28 application because of
section 29, it is unnecessary to deal with the
question of status.
Section 29 of the Federal Court Act reads as
follows:
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.
Section 26(1) of the Broadcasting Act provides:
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.
As the reasons for judgment on the application
in Court File No. 79-A-305 (infra) and the sub
missions on the hearing of this application indi
cate, the grounds of attack which the CBL seeks to
assert against the CRTC's decision may be sum
marized as follows:
1. The CRTC lacked jurisdiction to approve the
transfer to RTL of the effective control of the
broadcasting undertakings controlled by CCL;
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 officers of RTL and CCL, as well as
certain of the expert witnesses.
Since all of these grounds of attack may be
raised by way of an appeal pursuant to section 26
of the Broadcasting Act the section 28 application
must be quashed. See Mojica v. Minister of Man
power and Immigration [ 1977] 1 F.C. 458.
* * *
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.