T-328-76
In re the Broadcasting Act and in re Capital Cable
Co-operative and the Canadian Radio-Television
Commission and Victoria Cablevision Limited
Trial Division, Dubé J.—Vancouver, February 2,
1976.
Broadcasting—Prerogative writs—Application for man-
damus to compel CRTC to hear applicant's application for a
cable television licence—Whether CRTC practice of hearing
licence renewal application first and other applicants only if
renewal refused is contrary to law and natural justice—
Broadcasting Act, R.S.C. 1970, c. B-11, ss. 3, 15, 17, 19, 21—
CRTC Rules of Procedure 3, 4, 13.
The licence of Victoria Cablevision was due to expire March
31, 1976, and applicant applied for a licence to serve the same
area. The CRTC advised that it is not its practice to accept
applications where a licence has been granted and is about to
expire, but to hold a public hearing to determine whether the
licence should be renewed. If it should decide against renewal,
it would then call for other applications. Applicants meanwhile
may intervene at the renewal hearing. Applicant seeks man-
damus to compel the CRTC to hear its application, alleging
that this practice is contrary to law and natural justice.
Held, granting the application, the Commission is ordered to
hear the application of Capital before renewing the licence of
Victoria. While it is more serious to deny the right to apply for
renewal to a licence holder than to refuse a hearing to another
applicant, neither has a vested right in the licence, and both
have a right to be heard. The CRTC has a duty to hear the
applicant. Possibly the added competition would assist the
CRTC in achieving the objectives enunciated in section 3 of the
Broadcasting Act. To decide without hearing is contrary to
basic principles of natural justice, and, while it is fair to grant
priority to the present holder, it is no less important that other
applicants be allowed to offer alternatives. Higher standards
are bound to result.
Confederation Broadcasting (Ottawa) Limited v. Canadi-
an Radio-Television Commission [1971] S.C.R. 906,
applied.
APPLICATION.
COUNSEL:
D. S. Lisson for applicant.
B. W. F. McLoughlin, Q.C., for respondent
CRTC.
A. McEachern for respondent Victoria
Cablevision Limited.
SOLICITORS:
Lisson, McConnan, Bion & O'Connor, Vic-
toria, for applicant.
Lawrence & Shaw, Vancouver, for respondent
CRTC.
Russell & DuMoulin, Vancouver, for
respondent Victoria Cablevision Limited.
The following are the reasons for order deliv
ered orally in English by
DURÉ J.: This is an application for a writ of
mandamus to order the Canadian Radio-Televi
sion Commission (hereinafter the CRTC) to hear
the application of the applicant for a cable televi
sion licence to serve the Greater Victoria area on
the grounds that the practice of the CRTC to hear
only an application to renew a licence, along with
interventions, and then hear other applications for
the said licence only if the application to renew is
refused is contrary to law and the rules of natural
justice.
Because of the urgency of the matter (the
renewal application is to be heard on February 6,
1976) and my own limitation of time, I will try to
be brief and, hopefully, to the point.
Victoria Cablevision Ltd. (hereinafter "Vic-
toria") is the holder of a valid and subsisting
licence to operate â broadcasting receiving under
taking for a cable television service in the Greater
Victoria area due to expire on March 31, 1976.
Victoria has applied for renewal and the CRTC
has set February 5, 1976 as the date of the hearing
at Victoria, B.C.
By affidavit it alleges it has complied in all
respects with the terms of its present licence.
The applicant is a non-profit communications
organization for the benefit of the people of the
Greater Victoria region. In pursuance of its objec
tives it has filed an application for the cable
licence to serve the said area on October 31, 1975.
In response the CRTC has advised by letter that it
is its practice not to accept applications where a
licence has been granted and is about to expire but
to hold a public hearing to determine whether the
licence should be renewed. If it should decide not
to renew the licence, then it would call for applica
tions from other interested parties. Meanwhile
applicants may file an intervention in opposition to
that renewal.
The applicant prays for an order under section
18 of the Federal Court Act to issue a writ of
mandamus against the CRTC to hear its
application.
The grant of a writ of mandamus is a matter for
the discretion of the court. It is not a writ of right
and it is not issued as a matter of course. It will be
granted to the end that justice be done in cases
where there is a specific legal right and no other
remedy.
The applicant for a writ of mandamus must
show that there resides in him a legal right to the
performance of a legal duty by the party against
whom the mandamus is sought. Moreover, the
subject matter of the writ must be clear and the
act sought must be a duty imperative and not
discretionary. The court should apply the remedy
when an important fundamental right has been
taken away without words of the legislature
expressly or by necessary intendment doing so.
So duty, and the refusal to perform it are two
essential ingredients to a successful application for
a writ of mandamus. The basic issue here is
whether the CRTC has a duty to hear the applica
tion of the applicant before renewing the licence of
Victoria, it being admitted that it refuses so to do.
Section 3 of the Broadcasting Act enunciates
the objectives of the broadcasting policy for
Canada and states that these objectives can best be
achieved by providing for regulation and supervi
sion of the Canadian broadcasting system by a
single independent public authority, i.e. the
CRTC. The subsections declare that radio fre
quencies are public property, that the Canadian
broadcasting system should be effectively owned
and controlled by Canadians so as to safeguard,
enrich and strengthen the cultural, political, social
and economic fabric of Canada; that all Canadians
are entitled to broadcasting service in English and
French as public funds become available; that the
regulation and supervision of the Canadian broad
casting system should be flexible, etc.
Section 15 provides that the CRTC shall regu
late and supervise all aspects with a view to imple
menting the broadcasting policy enunciated in sec
tion 3, (supra).
Section 17 describes the powers exercisable by
the CRTC, namely to issue broadcasting licences
for such terms not exceeding five years and to
issue renewals for such terms not exceeding five
years.
Under section 19 a public hearing shall be held
by the CRTC in connection with the issue of a
licence; and also the renewal of a licence, unless
the CRTC is satisfied that such a hearing is not
required in the latter case.
Section 21 authorizes the Commission to make
rules. Rule 3 stipulates that every application shall
be made in writing for the issue or renewal of a
licence. Rule 4 deals with application and renewal
hearings. Rule 13 defines interventions as being
merely for the purpose of supporting, opposing or
modifying the application.
The most relevant decision is that of Confedera
tion Broadcasting (Ottawa) Limited v. Canadian
Radio-Television Commission' where a majority
of the Supreme Court of Canada held that a
CRTC decision cannot stand in so far as it denied
the appellant the right to apply for a further
renewal. It was held that nowhere in the Act is
there such power as to enable the CRTC to couple
a renewal term with a peremptory denial of status
to apply for a further renewal prior to the expira
tion of the term.
Laskin J. (as he then was) makes the point [at
page 931] that the licensee has no right to a
renewal but a right to apply for a renewal, and
previously the point that a renewal applicant is in
a more favourable position than other applicants.
1 [1971] S.C.R. 906.
But there is nothing said about other applicants
not being entitled to apply.
Whether or not the appellant could apply afresh for the fre
quency, it needs no demonstration that an applicant for a
licence who must compete for it with an undetermined number
of other applicants is, prima facie at least, in a less favourable
position than it would be in if it were applying for renewal of a
subsisting licence.
In my opinion, the Act gives a licensee, whose licence has not
been revoked or suspended during its currency, a right to apply
for a renewal. There are obvious economic factors involved in
qualifying for and remaining qualified for licensing, and the
right to apply for a renewal of a licence cannot be dismissed as
having merely ephemeral value because there is no right to a
renewal:
Obviously, it is much more serious to deny the
right to apply for a renewal to a licence holder
than to refuse a hearing to another applicant for
the same licence. The former has usually expended
important sums of money establishing his venture,
whereas the latter has mostly invested time and
energy in the preparation of his application. Nei
ther has a vested right in a broadcasting licence,
but in my view both have a right to be heard. To
be sure, the former, if he has complied in all
respects with the terms of its present licence, has a
priority right to be heard, but there is nothing to
be found in the Act to the effect that the latter
should not be heard at all. In my opinion the
CRTC has a duty to hear his application before
renewing the licence. Surely the additional input
can do no harm and the CRTC still remains free
to decide as it chooses.
One may even suggest that more competition
would greatly assist the CRTC in achieving its
objectives, namely "to safeguard, enrich and
strengthen the cultural, political, social and eco
nomic fabric of Canada" as enunciated under
section 3 of the Act. Should the CRTC renew,
without hearing other applications, it may discover
too late that better and more acceptable alterna
tives have been passed by, perhaps to the detri
ment of the people in the area to be served.
It is contrary to the basic principles of natural
justice to decide without hearing. True, it is just
and fair to grant a licence holder priority hearing
in order to decide whether his monopoly should be
extended for a further term, but it no less impor
tant that other applicants for the same licence be
given the opportunity to offer alternatives; the test
is bound to produce higher standards.
Of course this could create administrative prob
lems for the CRTC but, to borrow from the lan
guage of section 3(j) of the Act, it is for the
Commission to adopt a type of regulation and
supervision "flexible" enough to adapt itself
"readily" to "scientific and technical advances".
A writ of mandamus will therefore issue order
ing the said Canadian Radio-Television Commis
sion to hear the application of Capital Cable Co
operative for a cable television licence to serve the
-Greater Victoria area as requested in applicant's
originating notice of motion and before renewing
the licence of Victoria Cablevision Ltd.
ORDER
Writ of mandamus to issue ordering the said
Canadian Radio-Television Commission to hear
the application of Capital Cable Co-operative for a
cable television licence to serve the Greater Vic-
toria area as requested in applicant's originating
notice of motion and before renewing the licence
of Victoria Cablevision Limited.
Costs to the applicant.
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.