A-647-75
In re Canadian Radio-Television Commission and
in re London Cable TV Limited
Court of Appeal, Jackett C.J., Pratte and Heald
JJ.—Ottawa, April 7, 8 and 9, 1976.
Judicial review and appeal—Broadcasting—Decision of
CRTC permitting cablevision company to amend licence—
Applicants, interveners at public hearing, claiming they were
not permitted to see certain documents or to cross-examine
witnesses at hearing—Broadcasting Act, R.S.C. 1970, c. B-11,
ss. 19, 26.
The CRTC approved an amendment to the licence of London
Cable TV Limited to, inter alia, permit it to charge $6 per
month for "basic service". Applicants, who intervened at the
public hearing in connection with the proposed amendment,
claimed that they were not permitted to see certain documents
before or during the hearing and were refused permission to
cross-examine witnesses at the hearing.
Held, setting aside the decision, the matter is referred back
for reconsideration after the requirements of section 19 of the
Broadcasting Act have been complied with. Refusal to permit
cross-examination did not result in a failure to permit appli
cants to exercise their rights as members of the "public" under
the Act. Nor was the withholding of certain "staff-documents"
improper. As to the withholding of the financial statements and
future projections put before the Commission, at its request, by
the licensee, it is unnecessary to decide whether such withhold
ing was a breach of natural justice or of the Commission's own
procedural rules. For, by virtue of section 19(2), it was a
condition precedent to the valid making of the amendment that
a public hearing be held. What the Act contemplates is a
meaningful hearing calculated to aid the Commission in reach
ing a conclusion which reflects a consideration of the public
interest as well as the private interest of the licensee. There was
not available to applicants as members of the public a reason
able opportunity to know what was involved in the application.
When the Commission refused, not only to make the financial
statements and projections available with its notice of hearing
but when asked by members of the public as well, it failed to
take a step which was, here, a condition precedent to the
holding of a section 19 public hearing. As such a hearing was a
condition precedent to the power to make the order in question,
it must be set aside.
Attorney General of Manitoba v. National Energy Board
[1974] 2 F.C. 502; In re Capital Cities Communications
Inc. [1975] F.C. 18 and M.N.R. v. Wrights' Canadian
Ropes, Limited [1947] A.C. 109, considered.
JUDICIAL review and appeal.
COUNSEL:
A. J. Roman for applicant.
C. C. Johnston for respondent.
R. J. Wright, Q.C., for intervener.
SOLICITORS:
Andrew J. Roman, Ottawa, for applicant.
C. C. Johnston, General Counsel, CRTC, for
respondent.
Lang, Michener, Cranston, Farquharson &
Wright, Toronto, for intervener.
The following are the reasons for judgment
delivered orally in English by
JAÇKETT C.J.: This is an appeal under section
26 of the Broadcasting Act and a section 28
application, joined together in a single proceeding
under Rule 1314, in respect of a decision of the
Canadian Radio-Television Commission' (75-513)
dated October 28, 1975, whereby an application
by London Cable TV Limited 2 to amend its cable
television licence inter alia so as to permit it to
charge $6.00 per month for "basic service" was
approved.'
The applicants were intervenants in a "public
hearing", which was held as a condition precedent
to granting such an amendment as required by
section 19(2) of the Broadcasting Act. 4 They
attacked the decision of the Commission because
I Now replaced by the Canadian Radio-Television and Tele
communications Commission. See Bill C-5 of 1975-76 Session,
proclaimed April 1, 1976.
2 Now amalgamated with other companies to form Canadian
Cablesystems (Ontario) Limited.
3 The power of the Commission to grant cable television
licences was established, as far as this Court is concerned, in an
application by Capital Cities Communications Inc. [1975] F.C.
18. No question has been raised in this matter as to the
Commission's jurisdiction to insert a condition in such a licence
concerning service charges and that question does not, there
fore, have to be decided for the purpose of this proceeding.
4 Section 19(1) and (2) read as follows:
19. (1) A public hearing shall be held by the Commission
(a) in connection with the issue of a broadcasting licence,
other than a licence to carry on a temporary network
operation; or
(a) they were not permitted to see certain docu
ments either before or during the hearing, and
(b) the Commission refused to permit cross-
examination of witnesses at the hearing.
In so far as the cross-examination is concerned,
it was not, in my opinion, demonstrated that such
refusal resulted, in this case, in a failure to permit
the applicants to exercise their rights as members
of the "public" under the statute. I am of the same
view with reference to the withholding of certain
documents that have been referred to as
"staff-documents".
That leaves for consideration the effect on the
validity of the order attacked of the withholding
from the applicants of an audited financial state
ment of the licensee and projections as to future
earnings at the pre-existing rate ($5.00 per month)
and at the proposed rate ($6.00 per month), which
had, at the request of the Commission, been put
before the Commission in support of the applica
tion by the licensee before the Commission pro
ceeded with the "public hearing".
In so far as these documents are concerned, an
attack was made on the granting of the amend
ment on the basis that their having been withheld
was a breach of the fundamental rule of natural
justice that prima facie no decision or order is to
be made against a person by a statutory authority
without affording him a reasonable opportunity of
answering the case against him. The applicants, as
subscribers, or as the representative of subscribers,
to the cable system here in question, attempted to
bring themselves within that rule. I do not find it
necessary to express any opinion as to whether the
(b) where the Commission or the Executive Committee
has under consideration the revocation or suspension of a
broadcasting licence.
(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
(a) the amendment of a broadcasting licence;
(b) the issue of a licence to carry on a temporary network
operation; or
(c) a complaint by a person with respect to any matter
within the powers of the Commission.
While a public hearing is clearly mandatory in every applica
tion to which section 19(1) applies, in my view, a public hearing
is also mandatory in every case to which section 19(2) applies if
the Executive Committee decides that "it would be in the
public interest to hold such a hearing."
applicants can succeed in this proceeding on the
basis of that rule because I have come to a conclu
sion in their favour for another reason that I am
about to express. For the same reason, I do not
find it necessary to come to any conclusion as to
whether there was, by virtue of the withholding of
such documents, such a failure to comply with the
Commission's own rules of procedure as to entitle
the applicants to an invalidation order.
I am of opinion that it was, by virtue of section
19(2), a condition precedent to the valid making of
the amending order attacked by this application
that a "public" hearing have been held in connec
tion with the proposed amending order. In my
view, at the very minimum, what the statute
required, by requiring a "public hearing", was a
hearing at which, subject to the procedural rules of
the Commission and the inherent jurisdiction of
the Commission to control its own proceedings,
every member of the public would have a status
"to bring before" the Commission anything rele
vant to the subject matter of the hearing so as to
ensure that, to the extent possible, everything that
might appropriately be taken into consideration
would be before the Commission, or its Executive
Committee, when the application for the amend
ment was dealt with. 5 To be such a public hearing,
it would, in my view, have had to be arranged in
such a way as to provide members of the public
with a reasonable opportunity to know the subject
matter of the hearing, and what it involved from
the point of view of the public, in sufficient time to
decide whether or not to exercise their statutory
5 Compare Attorney General of Manitoba v. National
Energy Board [1974] 2 F.C. 502, per Cattanach J. at pages
518-19.
I express no view as to whether other grounds exist for
invalidating the order attacked. For example, I express no
opinion as to whether what was contemplated was a hearing
during which a record would be made on the basis of which
the matter would have to be determined (in which case, on
the reasoning in M.N.R. v. Wrights' Canadian Ropes, Lim
ited [1947] A.C. 109, this proceeding would probably suc
ceed) and I express no opinion as to whether what was
contemplated was a hearing at which every intervenant
would be entitled to the rights implied by the rules of natural
justice in favour of parties against whom it is proposed to
make or refuse an order (in which case also the proceeding
would probably succeed).
right of presentation and to prepare themselves for
the task of presentation if they decided to make a
presentation. In other words, what the statute
contemplates, in my view, is a meaningful hearing
that would be calculated to aid the Commission, or
its Executive Committee, to reach a conclusion
that reflects a consideration of the public interest
as well as a consideration of the private interest of
the licensee; it does not contemplate a public meet
ing at which members of the public are merely
given an opportunity to "blow off steam".
In this case it seems clear to me, from a study of
the "Case" and from argument in this Court, that
there was not made available to the applicants as
members of the public a reasonable opportunity to
know what was involved in the application. 6 The
refusal to provide them with the financial state
ments and projections in question—and the failure
to provide the fundamental basic facts relevant to
the proposed increase in rates by some other meth-
od—left members of the public, including the
applicants, in a position where they knew that the
licensee was asking leave to increase its charges to
the public but where they had no means of form
ing a considered opinion as to whether such
increase was justified by the circumstances and
had no means, if they concluded that it was not, of
preparing themselves to put forward their position
at the hearing.
When the Commission not only failed to' make
such basic information available with its notice to
the public of the statutory "public hearing" but
refused, when asked by interested members of the
public, to supply such basic information, in my
view, it failed to take a step that, in the circum
stances of this case, was a condition precedent to
the holding of a section 19 "public hearing"; and,
as such a hearing was a condition precedent to the
power of the Commission or Executive Committee
to make the order under attack, I am of opinion
that it must be set aside. 7
6 What pre-hearing information, if any, is necessary to make
a "public hearing" a meaningful hearing will obviously vary
according to the circumstances.
If, of course, such information had not been supplied in a
preliminary way to the Commission by the licensee, the Com
mission could not have supplied it to the public. As it seems to
me, however, some such information has to be put before the
Commission before the Commission has a prima facie case to
consider with reference to an increase in rates.
I propose that the decision made by the Canadi-
an Radio-Television Commission (or its Executive
Committee) on October 28, 1975 (75-513), per
mitting London Cable TV Limited to amend its
cable television licence be set aside and that the
matter be referred back for reconsideration after
the requirements of section 19 of the Broadcasting
Act have been complied with.
* * *
PRATE J. concurred.
* * *
HEALD J. concurred.
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.