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.
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.