National Indian Brotherhood, Indian-Eskimo
Association, Union of Ontario Indians and
Canadian-Indian Centre of Toronto (Applicants)
v.
Pierre Juneau, H. J. Boyle, Mrs. P. Pearce, Hal
Dornan, R. Therrien, and Canadian Radio-
Television Commission (Respondents)
No. 1
Trial Division, Walsh J.—Toronto, June 14, 18,
1971.
Jurisdiction—Mandamus—Certiorari—Decision of CRTC
refusing public hearing of complaint against telecast—
Simultaneous applications to Trial Division and Court of
Appeal—Jurisdiction—Status of applicants—Whether
associations entitled to mandamus—Federal Court Act,
secs. 18, 28—Broadcasting Act, 1967-68 (Can.), c.25, s.
19(2)(c).
On May 28, 1971, the Executive Committee of the
CRTC, not being satisfied that it would be in the public
interest to do so, decided not to hold a public hearing into a
complaint by four associations against the telecast of a film
alleged to be slanderous of Indians. On June 7 the four
associations applied to the Trial Division under s. 18 of the
Federal Court Act for writs of mandamus and certiorari to
compel a public hearing of their complaint under s. 19(2)(c)
of the Broadcasting Act, 1967-68, c. 25. On the same day
applicants also applied to the Court of Appeal under s. 28 of
the Federal Court Act to set aside the CRTC order of May
28 for failure to observe the principles of natural justice,
etc.
Held, the application to the Trial Division should not be
dealt with pending a decision by the Court of Appeal on the
question whether the matter was within its jurisdiction
under s. 28 of the Federal Court Act.
Held also, the applicants, though not individuals specifi
cally affected by the CRTC order, had status as "persons"
under s. 19(2) of the Broadcasting Act to make this
application.
APPLICATION for mandamus and certi-
orari.
J. D. Karswick for applicants.
Claude Thomson and J. D. Hylton, contra.
WALSH J.—This matter came on for hearing
in Toronto on June 14, 1971 before the Trial
Division of the Court under the provisions of s.
18 of the Federal Court Act on a motion asking
(a) For an order by way of mandamus directed to Pierre
Juneau, H. J. Boyle, Mrs. P. Pearce, Hal Dornan, R. Therri-
en, all the members of the Executive Committee of the
Canadian Radio-Television Commission, to decide, declare
or state whether they are satisfied that it would be in the
public interest to hold a public hearing into the complaint
filed by the Applicants with respect to the film "The
Taming of the Canadian West",
And further, to decide, declare or state the basis for such
declaration or statement,
(b) In the alternative, for an order for the issuance of a
writ of certiorari directing the secretary of the Canadian
Radio-Television Commission, its members, officers and
directors to forthwith transmit to the office of the Registrar
of the Federal Court of Canada all letters, memos, papers,
certificates, records and all proceedings had or taken con
cerning the complaint filed with respect to "The Taming of
the Canadian West",
And further, for an order by way of mandamus directing
the Canadian Radio-Television Commission to hold and
conduct a public inquiry into the complaint filed by the
Applicants with respect to the film, "The Taming of the
Canadian West".
(c) For such further and other order as may seem just.
In support of the application, the affidavit of
Fred Plain and the exhibits referred to therein
were filed and also two further affidavits and
attached exhibits of John William Peace and R.
Alfred Best respectively, and the matter was
fully argued, both on the questions of procedure
and on the merits under reserve of the proce
dural objections made, by James D. Karswick,
counsel for applicants, and Claude Thomson,
Q.C., counsel for respondents.
Two of the applicants are organizations com
posed of and representing the Indians of
Canada and of Ontario respectively and the
other two applicants are organizations interest
ed in the social, cultural and economic advance
ment of the Indians and other native ethnic
groups of Canada. Counsel for respondents
made a preliminary objection contending that
the applicants, being corporate organizations
and not individuals specifically affected, have
no status to ask the Court for the issue of a
mandamus or certiorari. In support of this con
tention he referred to the case of Watson v.
Cobourg (1923-24) 55 O.L.R. 531 which held at
page 533:
... before a mandatory order can be obtained the applicant
must shew that he has some specific right in law to enforce
the duty the performance of which he asks the aid of the
Court to compel. It is not enough to shew that the municipal
body has a duty—it must be a duty owing to him as distinct
from the public in general. This applicant has no greater
right than any member of the public.
He also referred to the case of The Queen v.
Guardians of the Lewisham Union [1897] 1
Q.B. 498 in which Wright J. stated at page 500:
This Court would be far exceeding its proper functions if it
were to assume jurisdiction to enforce the performance by
public bodies of all their statutory duties without requiring
clear evidence that the person who sought its interference
had a legal right to insist upon such performance.
Again, at page 501, Bruce J. said:
This Court has never exercised a general power to enforce
the performance of their statutory duties by public bodies
on the application of anybody who chooses to apply for a
mandamus. It has always required that the applicant for a
mandamus should have a legal specific right to enforce the
performance of those duties.
A close examination of the facts of those and
similar cases, read in conjunction with the
wording of the statute in the present case, how
ever, indicates that they would not be applica
ble so as to prevent the present application
from being considered. Section 19 of the
Broadcasting Act, 1967-68 (Can.), c. 25 which
is the section on which the application is based,
reads in part as follows:
19. (2) A public hearing shall be held by the Commission,
if the Executive Committee is satisfied that it would be in
the public interest to hold such a hearing, in connection with
* * *
(c) a complaint by a person with respect to any matter
within the powers of the Commission.
This section refers to a complaint "by a person"
which is certainly a very broad term and would
include corporate bodies (see s. 28(27) of the
Interpretation Act 1967-68 (Can.), c. 7 which
reads: "In every enactment, `person' or any
word or expression descriptive of a person,
includes a corporation;"). It may well be that
the "person" who makes the complaint should
be someone who has a specific interest in doing
so but it is hard to conceive of a "person" who
would have a greater interest in so doing than
the present applicants who represent the Indi-
ans who claim to have been affronted by the
film screen on the C.T.V. network entitled "The
Taming of the Canadian West" which, in their
opinion, is "blatantly racist, historically inaccu
rate, and slanderous to the Indian race and
culture", as stated in Mr. Plain's affidavit. I
therefore dismiss this objection.
There appears to be, however, a more serious
objection to dealing with the matter in the Trial
Division at this time although this objection was
raised by the Court of its own motion and not
by counsel for respondents. Section 18 of the
Federal Court Act, 1970 (Can.), c. 1 giving the
Trial Division exclusive original jurisdiction
over the present proceedings, must nevertheless
be read in conjunction with s. 28 of the Act
giving the Federal Court of Appeal jurisdiction
over an application to review and set aside a
decision or order of a federal board, commis
sion or other tribunal such as the Canadian
Radio-Television Commission "other than a
decision or order of an administrative nature
not required by law to be made on a judicial or
quasi-jucidial basis" and this right of review
exists "notwithstanding s. 18 or the provisions
of any other Act". Moreover, the powers of the
Court of Appeal are very wide under s. 28 and
go beyond what the Trial Division can do in
applying the common law and jurisprudence
relating to prerogative writs such as mandamus
and certiorari. The decision or order of the
board, commission or other tribunal can be
reviewed and set aside by the Court of Appeal
on the ground that it
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
Section 28(3) states categorically:
28. (3) Where the Court of Appeal has jurisdiction under
this section to hear and determine an application to review
and set aside a decision or order, the Trial Division has no
jurisdiction to entertain any proceeding in respect of that
decision or order.
The question of the effect of s. 28(3) on
applications before the Trial Division under s.
18 has never come before the Court before and
I would not go so far as to say that in all cases
before the Trial Division can deal with an
application under s. 18 it must consider and
reach a conclusion as to whether the Court of
Appeal has jurisdiction under s. 28(1), whether
or not this issue has been raised. However, in
the present case this situation does not arise.
Applicants have also proceeded under the
provisions of s. 28 before the Court of Appeal
for an order to set aside the decision of the
Executive Committee of respondents, the
Canadian Radio-Television Commission, of
May 28, 1971, that it would not be in the public
interest to hold a public meeting on the com
plaints filed as provided in s. 19(2)(c) of the
Broadcasting Act, and the hearing of an
application for directions under the provisions
of Rule 1403 in connection with this application
has been fixed for June 21, 1971, at Toronto.
[The judgment of JACKETT, C. J. on the applica
tion for directions in the Court of Appeal is
reported immediately following the report of
this decision—ED.]
In connection with the present issue, there
fore, there are now two separate and distinct
proceedings before the Court, namely that
before the Trial Division under s. 18 which I
have heard and with which I am seised, and that
before the Court of Appeal, which is also pro
ceeding to hearing and eventual determination
"without delay and in a summary way" as
required by s. 28(5) of the Act. As a result, the
Court of Appeal will itself be deciding whether
it has jurisdiction to hear and determine an
application to review and set aside the decision
or order in question, and if it decides in the
affirmative, will be dealing with the matter. In
the event that it decides that it has this jurisdic
tion, then by virtue of s. 28(3) the Trial Division
will have no jurisdiction under s. 18.
Under the circumstances, and in view of this
other pending proceeding, it would not appear
to be desirable for a Judge of the Trial Division
to decide whether or not the Court of Appeal
has jurisdiction to hear and determine the
application to review and set aside the decision
or order of the Executive Committee of
respondent, Canadian Radio-Television Com
mission, which is before it. This is a decision
which it itself will be making at an early date.
In the event that the Court of Appeal should
decide by final judgment that it has no such
jurisdiction, then the Trial Division may have
jurisdiction under s. 18, and since the matter
has already been fully argued before me and I
am seised of it I could then proceed to give
consideration to the merits of the application
before me.
A further procedural issue was raised before
me arising out of the fact that the decision of
the Executive Committee of respondent
Canadian Radio-Television Commission, refus
ing a public hearing of the complaint, was ren
dered on May 28, 1971, before the Federal
Court Act came into effect on June 1, 1971.
The question whether subsec. (2) of s. 61 of the
Act, which reads as follows:
61. (2) Subject to subsection (1), any jurisdiction created
by this Act shall be exercised in respect of matters arising
as well before as after the coming into force of this Act,
applies so as to give the Court of Appeal juris
diction to review this decision under s. 28,
despite the fact that the decision was rendered
before June 1, or whether the appellants are
limited to the procedures available under the
old Act, was raised, and the recent Supreme
Court judgment in the cases of Kootenay & Elk
Rly et al. v. C.P.R. (C.T.C.); Margianis v. Minis
ter of Manpower and Immigration, which decid
ed that since the decision which was the sub-
ject-matter of the motion for leave made in
each case had been made prior to the coming
into force of the Federal Court Act, the
Supreme Court alone had jurisdiction to enter
tain the motion, was referred to. This is another
argument which will presumably be raised in
the Court of Appeal on the application before it,
and it is preferable that it should be dealt with
by it.
Until a decision has been made, therefore, by
the Court of Appeal as to whether it has juris-
diction under s. 28 I can make no order in this
matter under s. 18 as the jurisdiction of the
Trial Division is in doubt.
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.