A-684-76
Canadian Cablesystems (Ontario) Limited (Ap-
pellant)
v.
Canadian Radio-Television and Telecommunica
tions Commission and Canadian Radio-Television
Commission (Respondents)
Court of Appeal, Jackett C.J., Pratte and Le Dain
JJ.—Ottawa, April 4, 1977.
Practice — Written application for consent order varying
decision by respondents directing appellant to return funds
held in trust to subscribers — Whether respondents have
jurisdiction to make such direction — Whether variation could
be justified — Whether variation consented to by all interested
parties.
MOTION in writing pursuant to Rule 324.
SOLICITORS:
D. N. Plumley of Lang, Michener, Cranston,
Farquharson & Wright, Toronto, for appel
lant.
C. C. Johnston, General Counsel, CRTC and
Canadian Radio-Television Commission,
Ottawa, for respondents.
T. Gregory Kane, General Counsel, Consum
ers' Association of Canada and Mrs. Helen
Clements, Mrs. Mary Fisher and Margaret
Langford.
The following are the reasons for order ren
dered in English by
LE DAIN J.: This is an application for an order,
on consent, to allow an appeal from Decision
76-378 of the respondents, Canadian Radio-
Television and Telecommunications Commission
and Canadian Radio-Television Commission, by
varying the portion of their decision that directs
the appellant to return to subscribers certain funds
held in trust. The portion of the decision to be
varied, 2 C.R.T. 113 at 115, with the proposed
variations underlined, reads as follows:
At the public hearing commencing May 19, 1976, at which
London Cable's application was further considered, the Com
mission heard arguments from London Cable and from the
CAC concerning the disposal of the funds held in trust. In the
Commission's opinion, the judgment of the Federal Court of
Appeal setting aside Decision CRTC 75-513 rendered that
decision void. Accordingly, if the Commission were to grant
permission to London Cable to retain the funds held in trust, it
would, in effect, be granting retroactive approval of the instal
lation and monthly service fees represented by these funds. The
Commission has concluded that it does not have the power to
grant such approval. Unless the decision of the Federal Court
of Appeal is reversed on Appeal to the Supreme Court of
Canada so that Decision C.R.T.C. 75-513 is restored then
following the termination of such appeal the Commission
directs the licensee to return to its subscribers the funds held in
trust either by way of direct payments or credits to such
subscribers in such manner as is fair and equitable both to the
licensee and its subscribers in the circumstances.
I am of the opinion that there are several rea
sons why the application as presently presented
cannot be granted. It is sufficient to refer to three.
There would appear to be some doubt as to the
jurisdiction of the respondents to make a direction
of the kind that we are asked to vary. It is also
doubtful that such a variation could be justified on
an appeal that is confined by section 26(1) of the
Broadcasting Act, R.S.C. 1970, c. B-11, to ques
tions of jurisdiction and law. Finally, it would not
appear that the application is supported by the
consent of all persons who might be regarded as
having an interest in the direction which we are
asked to vary.
The application should accordingly, in my opin
ion, be dismissed, with leave to make a further
application, with suitable supporting material, to
be presented at an oral hearing on a date fixed by
the Judicial Administrator.
* * *
JACKETT C.J.: I agree.
* * *
PRATTE J.: I agree.
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.