Date: 20030903
Docket: A-64-03
Citation: 2003 FCA 326
Present: CHIEF JUSTICE RICHARD
BETWEEN:
VIDÉOTRON LTÉE
and
QUEBECOR MÉDIA INC.
Appellants
and
NETSTAR COMMUNICATIONS INC.
LE RÉSEAU DES SPORTS (RDS) INC.
and
BELL GLOBEMEDIA INC.
Respondents
Hearing held at Ottawa, Ontario, August 28, 2003.
Order delivered at Ottawa, Ontario, September 3, 2003.
REASONS FOR ORDER: CHIEF JUSTICE RICHARD
Date: 20030903
Docket: A-64-03
Citation: 2003 FCA 326
Present: CHIEF JUSTICE RICHARD
BETWEEN:
VIDÉOTRON LTÉE
and
QUEBECOR MÉDIA INC.
Appellants
and
NETSTAR COMMUNICATIONS INC.
LE RÉSEAU DES SPORTS (RDS) INC.
and
BELL GLOBEMEDIA INC.
Respondents
REASONS FOR ORDER
RICHARD C.J.
[1] This is a motion by the Canadian Radio-television and Telecommunications Commission (the "Commission") for leave to intervene in this proceeding pursuant to Rule 109 of the Federal Court Rules, 1998.
[2] Section 31 of the Broadcasting Act, R.S.C. 1991, c. 11 (the "Act") provides that an appeal lies from a decision or order of the Commission to the Federal Court of Appeal only on a question of law or a question of jurisdiction.
[3] In its order dated November 22, 2002, this Court granted the appellants, then applicants, leave to appeal from Decisions on the following questions:
[translation]
(a) Did the Commission err in deciding that it had statutory and constitutional jurisdiction to issue decision CRTC 2002-255 and to require that Vidéotron Ltée pay some amount to NetStar Communications Inc. and Le Réseau des Sports (RDS) Inc.?
(b) Did the Commission err in interpreting subsection 12(1) of the Broadcasting Act and section 9 of the Broadcasting Distribution Regulations (the "Regulations") and in determining that Vidéotron Ltée contravened section 9 of the Regulations? and
(c) If the Commission properly asserted its jurisdiction, did the Commission err:
- in failing to make full inquiry concerning the points raised in decision CRTC 2002-255 and decision CRTC 2002-254 and in breaching the rules of procedure and of natural justice? and
- in deciding that Vidéotron Ltée gave itself an undue preference, without regard to the documents and information that were at its disposal?
[4] Pursuant to this leave, the appellants appealed the Commission's decisions in files CRTC 2002-254 and CRTC 2002-255 (hereinafter the "Decisions") under section 31 of the Act.
[5] The respondents' counsel was present at the hearing on the Commission's motion to intervene, but did not participate in the proceedings. He had informed the Registrar of the Federal Court of Appeal that the respondents were not opposed to the Commission's request. The respondents also indicated their intention to participate in the appeal and to defend the Commission's decision.
[6] The appeal book was served and filed on June 9, 2003.
[7] I must decide whether the Commission should be given leave to intervene in this proceeding. Should I allow it, the parameters of this intervention will have to be determined.
[8] Rule 109 of the Federal Court Rules, 1998 provide that this Court may, on motion, grant leave to any person to intervene in a proceeding:
109. (1) Leave to intervene - The Court may, on motion, grant leave to any person to intervene in a proceeding.
(2) Contents of notice of motion - Notice of a motion under subsection (1) shall
(a) set out the full name and address of the proposed intervener and of any solicitor acting for the proposed intervener; and
(b) describe how the proposed intervener wishes to participate in the proceeding and how that participation will assist the determination of a factual or legal issue related to the proceeding.
(3) Directions - In granting a motion under subsection (1), the Court shall give directions regarding
(a) the service of documents; and
(b) the role of the intervener, including costs, rights of appeal and any other matters relating to the procedure to be followed by the intervener.
Federal Court Rules, 1998
[9] The Commission wishes to intervene in this proceeding in order to make written and oral submissions in regard to questions (a), (b) and (c) as determined by this Court in the context of its order of November 22, 2002.
[10] Counsel for the appellants submits that the Commission has not satisfied the requirements of Rule 109(2)(b) in that the Commission has not explained how its participation would assist the determination of a factual or legal issue related to the proceeding.
[11] He cited, inter alia, the decision of this Court in Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd., [2000] F.C.J. No. 220, and in particular paragraphs 8 and 12.
[12] The first question is clearly addressed to the statutory jurisdiction of the Commission.
[translation]
(a) Did the Commission err in deciding that it had statutory and constitutional jurisdiction to issue decision CRTC 2002-255 and to require that Vidéotron Ltée pay some amount to NetStar Communications Inc. and Le Réseau des Sports (RDS) Inc.?
[13] At the hearing, the Commission's counsel explained that he was seeking to intervene only on the question of statutory jurisdiction, and not the constitutional question.
[14] The arguments raised in the context of the memorandum of fact and law filed by the appellants in the motion for leave to appeal indicates the appellants' position in regard to this question of the Commission's jurisdiction:
Jurisdiction of the Commission
Decision 255 and Decision 254 go beyond any authority granted to the Commission under the Act.
... However, no interpretation, no matter how broad, can create jurisdiction where none exists. The Commission is limited to exercising the jurisdiction expressly granted to it under the applicable legislation.
Had Parliament intended that the Commission would have jurisdiction to adjudicate contractual disputes, interpret contracts and assess monetary remedies, especially exclusive jurisdiction, the Act would have express wording to that effect.
... Given the nature of the Complaint and the relief sought by NetStar/RDS, the Commission does not have jurisdiction, let alone exclusive jurisdiction, to inquire into, hear and determine the matters.
... In addition, and independent of the Commission's lack of jurisdiction, the Act contains no regime for the adjudication by the Commission of contractual disputes or any procedure for their resolution and there is no justification for the Commission to assume such jurisdiction for itself in the absence of such powers under the Act. The Commission was wrong to assume jurisdiction to adjudicate the parties' contractual dispute let alone make any order to pay monies.
... These matters fall beyond any jurisdiction or expertise of the Commission. The remedies sought are exclusively those reserved to Superior Courts established under section 96 of the Constitution Act, 1867, (U.K.), 30 & 31 Vict. c. 3, reprinted in R.S.C. 1985, App. II No. 5, unless the enabling legislation expressly confers such powers on the administrative body. No such legislative authority exists for the Commission.
... The Act contains no express or implied authority for the Commission to grant compensatory awards or to impose contractual indemnities stemming from a contract. The Commission has no power to enforce contracts let alone award the payment of monies between litigants. Characterizing the dispute as a breach of the Regulations is not a way to create jurisdiction or expertise.
[15] The courts have upheld the right of an administrative tribunal to intervene in an appeal or review of its decision in order to make representations as to its jurisdiction to make the order that is being challenged.
Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684, p. 710.
Human Rights Commission v. Canada, [1994] 2 F.C. 447, p. 458.
[16] The first question clearly goes to the fundamental jurisdiction of the Commission. I grant the Commission's right to intervene on this issue, but only in order to make its submissions on the question of the statutory jurisdiction to issue decision CRTC 2002-255 and to require that Vidéotron Ltée pay some amount to NetStar Communications Inc. and Le Réseau des Sports (RDS) Inc.
[17] The second question has to do with the standard of judicial review and the degree to which decision CRTC 2002-255 conforms to the applicable standard of review.
(b) Did the Commission err in interpreting subsection 12(1) of the Broadcasting Act and section 9 of the Broadcasting Distribution Regulations (the "Regulations") and in determining that Vidéotron Ltée contravened section 9 of the Regulations?
[18] In a recent judgment of the Supreme Court of Canada, Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, the Court considered the standard of judicial review applicable to a decision of the Commission concerning questions of jurisdiction and of law.
[19] In this decision, the Supreme Court applied the judgment in Pushpanathan v. Canada, [1998] 1 S.C.R. 19 and cited B.C. Telephone v. Shaw Cable Systems, [1995] 2 S.C.R. 739.
[20] So there are judgments from the highest level of the Canadian courts concerning the standard of judicial review applicable to the Commission's decisions.
[21] In these circumstances, the Commission has failed to demonstrate to me that the question of the standard of judicial review that is applicable in this proceeding is not adequately defended by one of the parties to the litigation, or how the Commission's participation would assist the determination and that the Court could not hear the matter and rule on it without the intervention of the Commission.
[22] The third question deals with denial of natural justice.
(c) If the Commission properly asserted its jurisdiction, did the Commission err:
- in failing to make full inquiry concerning the points raised in decision CRTC 2002-255 and decision CRTC 2002-254 and in breaching the rules of procedure and of natural justice? and
- in deciding that Vidéotron Ltée gave itself an undue preference, without regard to the documents and information that were at its disposal?
[23] The Commission's counsel states that the Commission wishes to present its interpretation of section 12 of the Broadcasting Act in relation to the alleged breaches of the principles of natural justice, since the alleged miscarriage of justice stems, in part, from the interpretation of this provision.
[24] In my opinion, it is not the Commission's task to argue on the issue of whether or not it acted in accordance with the principles of natural justice. However, in the context of this question, the Commission's intervention could be useful for the purpose of describing the procedure it followed in the case.
[25] In these circumstances, I would allow a limited right of intervention on the third question.
[26] An order will be issued granting the Commission intervener status to make written and oral representations on the first question, but only in regard to the Commission's statutory jurisdiction to issue decision CRTC 2002-255 and to require that Vidéotron Ltée pay some amount to NetStar Communications Inc. and Le Réseau des Sports (RDS) Inc.; and on the third question in order to describe the procedure it followed in decisions 255 and 254.
[27] The Commission, at the invitation of the panel of judges who will hear the appeal, may provide some explanations on the matter.
[28] The appellants will have 30 days from the date of this order in which to file and serve their memorandum.
[29] The Commission's memorandum shall not exceed 15 pages and will have to be served and filed within 10 days following the service of the respondents' memorandum.
[30] The Commission is added to the style of cause as an intervener.
[31] In view of the divided result, the parties shall bear their own costs.
"J. Richard"
Chief Justice
Certified true translation
Suzanne Gauthier, C.Tr., LL.L.
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-64-03
MOTION FOR LEAVE TO INTERVENE BY THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION
STYLE: VIDÉOTRON LTÉE ET AL.
V.
NETSTAR COMMUNICATIONS INC. ET AL.
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: AUGUST 28, 2003
DATE OF REASONS FOR ORDER: SEPTEMBER 3, 2003
APPEARANCES:
| Guy Pratte Caroline Matte |
|
FOR THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION |
|
|
|
|
| Daniel Urbas |
|
FOR THE APPELLANTS |
|
|
|
|
| Pierre Trottier |
|
FOR THE RESPONDENTS |
|
|
|
|
SOLICITORS OF RECORD:
| Borden, Ladner Gervais s.r.l. Montréal, Quebec |
|
FOR THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION |
|
|
|
|
| Woods & Associés Montréal, Quebec |
|
FOR THE APPELLANTS |
|
|
|
|
| McCarthy Tétrault s.r.l. Montréal, Quebec |
|
|
|
|
|
|
| FOR THE RESPONDENTS |
|
|
|
|
|
|
Date: 20030903
Docket: A-64-03
Citation: 2003 FCA 326
Present: CHIEF JUSTICE RICHARD
BETWEEN:
VIDÉOTRON LTÉE
and
QUEBECOR MÉDIA INC.
Appellants
and
NETSTAR COMMUNICATIONS INC.
LE RÉSEAU DES SPORTS (RDS) INC.
and
BELL GLOBEMEDIA INC.
Respondents
Hearing held at Ottawa, Ontario, August 28, 2003.
Order delivered at Ottawa, Ontario, September 3, 2003.
ORDER
Pursuant to a motion by the Canadian Radio-television and Telecommunications Commission (the "Commission") for leave to intervene in this proceeding pursuant to Rule 109 of the Federal Court Rules, 1998 for the purpose of making written and oral submissions in regard to questions (a), (b) and (c) as determined by this Court in the context of its order of November 22, 2002, it is hereby ordered:
[1] The Commission is granted intervener status to make written and oral representations on the first question, but only in regard to the Commission's statutory jurisdiction to issue decision CRTC 2002-255 and to require that Vidéotron Ltée pay some amount to NetStar Communications Inc. and Le Réseau des Sports (RDS) Inc. A limited right of intervention is also granted the Commission on the third question in order to describe the procedure it followed in decisions 255 and 254.
[2] The Commission, at the invitation of the panel of judges who will hear the appeal, may provide some explanations on the matter.
[3] The appellants will have 30 days from the date of this order in which to file and serve their memorandum.
[4] The Commission's memorandum shall not exceed 15 pages and will have to be served and filed within 10 days following the service of the respondents' memorandum.
[5] The Commission is added to the style of cause as an intervener.
[6] In view of the divided result, the parties shall bear their own costs.
"J. Richard"
Chief Justice
Certified true translation
Suzanne Gauthier, C.Tr., LL.L.