A-294-81
James Lipkovits, Penny Joy and The Association
for Public Broadcasting in British Columbia
(Appellants)
v.
Canadian Radio-television and Telecommunica
tions Commission and Canadian Cablesystems
Limited and Premier Communications Limited
(Respondents)
Court of Appeal, Pratte, Heald JJ. and Cowan
D.J.—Toronto, November 18 and 19; Ottawa,
December 14, 1982.
Broadcasting — Takeover by largest Canadian cable-televi
sion business of second-largest undertaking — CRTC author
ization necessary — Public hearing announced — Intervention
filed by appellants — Their request to cross-examine authors
of economic-forecasting and other studies filed in support of
application denied — Some of authors questioned by commis
sioners at hearing — Executive Committee granting applica
tion — Commissioner not at hearing participating — Natural
justice rule that he who hears shall decide inapplicable to s. 17
Executive Committee decisions — Submission that Canadian
Radio-television and Telecommunications Commission v. CTV
Television Network Limited, et al., /1982] 1 S.C.R. 530; 41
N.R. 271, inapplicable based on untenable argument decision
made by whole Commission — Jurisdiction properly exercised
by Executive Committee — Innisfil decision inapplicable as to
denial of right to cross-examine — Act not giving such right
— CRTC not even having duty to hold public hearing — No
authority for proposition that cross-examination necessary
ingredient of public hearing — Commission master of own
procedure and no violation of natural justice principles —
Appeal dismissed — Broadcasting Act, R.S.C. 1970, c. B-11,
ss. 17, 19, 21, 26 (as am. by R.S.C. 1970 (2nd Supp.), c. 10, s.
65 (Item 2)) — CRTC Rules of Procedure, C.R.C., c. 375, ss.
13, 14, 15.
Judicial review — Statutory appeals — Appeal under s. 26
of the Act from CRTC decision approving acquisition of cable
T.V. business — Natural justice rule that he who hears shall
decide inapplicable to s. 17 Executive Committee decisions —
No duty on Commission to hold public hearing — No statu
tory right of cross-examination — No authority for proposi
tion that cross-examination necessary ingredient of public
hearing — Natural justice principles not violated — Appeal
dismissed — Broadcasting Act, R.S.C. 1970, c. B-11, ss. 17,
26 (as am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 65 (Item 2)).
The respondent Canadian Cablesystems Limited ("CCL")
was the largest cable-television enterprise in Canada. It pro
posed to acquire control of Premier Communications Limited
("Premier"), the Country's second-largest cable enterprise, and
applied to the Canadian Radio-television and Telecommunica
tions Commission for approval of this acquisition. CCL's pres
entation to the Commission included several studies. Among
them were an examination of different aspects of the cable
industry, an examination of CCL, and economic forecasts.
According to the appellants, these studies failed to set forth
much information that was relevant to the Commission's
evaluation of the studies. The Commission called a public
hearing. The appellants intervened and requested an opportu
nity to cross-examine the authors of the studies submitted by
CCL. This request was refused by the Commission. At the
hearing, the Commission heard testimony from unsworn expert
witnesses for CCL, without allowing the appellants to cross-
examine those witnesses. The post-hearing deliberations of the
Commission were attended by all Commission members who
had been present at the hearing, and also by five members who
had not been present. One of these five was a full-time member,
who subsequently participated in the meeting of the Executive
Committee which approved the application. This decision was
appealed from on two grounds: first, that only those Commis
sion members who attended the hearing should have participat
ed in making the decision; secondly, that the Commission erred
in law in receiving and considering the testimony of expert
witnesses whom the appellants were not given an opportunity to
cross-examine.
Held, the appeal should be dismissed. With respect to the
appellants' first ground, the general rule is: "He who hears
shall decide"; however, this rule is not applicable if the govern
ing statute excludes it. Such was the case here. Even if not
binding, the reasons of Laskin C.J. in Canadian Radio-televi
sion and Telecommunications Commission v. CTV Television
Network Limited, et al. are persuasive authority for the propo
sition that the general rule is inapplicable to decisions of the
Commission's Executive Committee made pursuant to section
17 of the Broadcasting Act, following a hearing under section
19. It was proper for the Executive Committee, as contrasted
with the larger Commission, to make the decision. Indeed, the
decision had to be made by the Executive Committee. The
conditions originally attached by the Executive Committee to
the licences of Premier's subsidiaries prescribed that the Com
mission's approval be obtained for any change in control;
however, the approval required was that of the Executive
Committee.
With respect to their second ground, the appellants main
tained that, by virtue of the Commission's decision to hold a
public hearing, the appellants had a right to be heard and to
oppose the application, and that a denial of the opportunity to
cross-examine was a denial of the right to oppose the applica
tion in a meaningful way. However, neither expressly nor by
implication does any provision of the Broadcasting Act or the
applicable regulations give to those appearing before the Com
mission a right to cross-examine witnesses. Such a right is not a
necessary ingredient of a public hearing, and cannot be implied
in a statute on the basis that it is a necessary ingredient.
Furthermore, natural justice does not always require that par
ties to a hearing have the right to cross-examine. Natural
justice imposes no such requirement in this case, since the
appellants were not defending themselves against any charge,
or prosecuting a lis with the applicant, or liable to have their
rights directly affected by the Commission's decision. Subject
to its rules, the Commission was master of its own procedure
during the hearing. It was required only to act in good faith and
listen fairly to both sides.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canadian Radio-television and Telecommunications
Commission v. CTV Television Network Limited, et al.,
[1982] 1 S.C.R. 530; 41 N.R. 271.
DISTINGUISHED:
Corporation of the Township of Innisfil v. Corporation
of the Township of Vespra, et al., [1981] 2 S.C.R. 145;
Board of Education v. Rice, et al., [1911] A.C. 179
(H.L.).
REFERRED TO:
Hoffman-La Roche Limited v. Delmar Chemical Lim
ited, [1965] S.C.R. 575; Armstrong v. The State of
Wisconsin et al., [1973] F.C. 437 (C.A.); Seafarers
International Union of Canada v. Canadian National
Railway Company, [1976] 2 F.C. 369 (C.A.); In re
Canadian Radio-Television Commission and in re
London Cable TV Limited, [1976] 2 F.C. 621 (C.A.); In
re Anti-dumping Act and in re Re-hearing of Decision
A-16-77, [1980] 1 F.C. 233 (C.A.).
COUNSEL:
A. J. Roman for appellants.
A. Cohen and P. A. Wylie for respondent
Canadian Radio-television and Telecommuni
cations Commission.
P. Genest, Q.C. and I. A. Blue for respondents
Canadian Cablesystems Limited and Premier
Communications Limited.
SOLICITORS:
The Public Interest Advocacy Centre,
Toronto, for appellants.
Legal Counsel, Canadian Radio-television
and Telecommunications Commission, Hull
(Quebec), for respondent Canadian Radio-
television and Telecommunications Commis
sion.
Cassels, Brock, Toronto, for respondents
Canadian Cablesystems Limited and Premier
Communications Limited.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an appeal, pursuant to leave
granted by this Court under section 26 of the
Broadcasting Act [ R.S.C. 1970, c. B-11, as am. by
R.S.C. 1970 (2nd Supp.), c. 10, s. 65 (Item 2)],
from a decision of the Canadian Radio-television
and Telecommunications Commission approving
the acquisition by Canadian Cablesystems Limited
(CCL) of the effective control of Premier Com
munications Limited (Premier) and its licensed
subsidiaries.
CCL was the applicant before the Commission.
At that time, it already controlled, through its
subsidiaries, cable television systems in southern
Ontario and in Alberta and was already the largest
cable-television enterprise in Canada. It proposed
to acquire control of Premier, which, through
seven licensed subsidiaries, operated the second-
largest cable undertaking in the Country. That
acquisition had to be authorized by the Commis
sion, since the broadcasting licences of Premier's
seven subsidiaries were, by their very terms, sub
ject to the condition that the effective control of
those companies could not be transferred without
the permission of the Commission. CCL sought
that authorization in early March 1980, and, as
part of its application to the Commission, filed a
voluminous documentation, part of which was
referred to by the appellants as being included in a
"Brown Book" and in a "Blue Book". The appel
lants' factum gives the following description of the
documents contained in those two books:
12. In addition to the basis [sic] information required by the
CRTC, and the normal plans and promises of the Applicant
intended to illustrate the benefits alleged to result should the
application be granted, the Brown Book contains a study, under
"Section II Part E", entitled Financing Plans of the Applicant.
This section includes a major economic forecasting study upon
which the Applicant relied to persuade the Commission of the
desirability and practicality of its financing plans for the take
over. Five year forecasts for both CCL and Premier are includ
ed. To fund the takeover, CCL's plans included obtaining
major bank loan financing, the repayment of which was a cost
to subscribers. The forecast contains a number of "significant
assumptions", based on an economic study commissioned by
CCL from James R. LymBurner & Sons Limited. This study
included items such as projected inflation and interest rates for
the period 1980 - 1985, and the projected Canadian/U.S. dollar
exchange rate for the same period.
13. Also contained in the Brown Book is a brief summary of the
eight studies contained in the Blue Book. In the introduction to
this section, the Applicant states:
Section III of this Application contains Studies commis
sioned by the Applicant used in preparing the body of the
Application.
14. The Blue Book contains eight studies prepared under the
aegis of various consulting firms, focusing on different aspects
of the cable industry in general, a specific examination of CCL,
and forecasts of future trends. The studies address topics of
material importance to the Applicant's main submissions. They
support (indeed, in several cases they openly advocate) the
proposed takeover.
15. Not all of the studies bear their authors' names. Some
merely show the conclusions of the authors, presumably based
on research, assumptions and findings of the authors which are
not set out. Several studies were based, at least in part, on
surveys of groups and the Applicant's cable subscribers. Addi
tionally, in most of the studies, there is little indication of the
credentials of the authors or the method used in designing,
carrying out and interpreting the results of these studies.
On March 31, 1980, the CRTC published a
public notice that a public hearing would be held
on May 20, 1980, to consider the application of
CCL. That notice described the application and
provided a list of locations where it could be
examined by members of the public.
On April 29, 1980, the appellants filed an inter
vention pursuant to sections 13, 14 and 15 of the
CRTC Rules of Procedure [C.R.C., c. 375].' In
that intervention, the appellants stated their oppo
sition to CCL's application and requested permis
sion to cross-examine the authors of the studies in
the Blue Book. The reasons why cross-examination
was requested are summarized in the following
terms in the appellants' memorandum:
1) The authors of several of the studies were not identified.
Cross-examination was sought to identify all the authors and to
establish their credentials as experts fully qualified to give the
opinions set out in the studies.
2) The financing plans of the applicant as well as its purported
ability to fulfil the promises set out in the body of its applica
tion, were clearly based on the economic forecast prepared by it
' Sections 13 and 15 of the Rules read in part as follows:
13. Any person who is interested in an application ... may
file with the Commission an intervention for the purpose of
supporting, opposing or modifying the application.
15. An intervention shall be filed and served at least 20
days before the day fixed for the commencement of the
public hearing ....
and by James LymBurner & Sons Limited. The intervener
sought to determine the manner in which the forecaster pre
pared these forecasts.
3) Some of the studies were summaries of findings or conclu
sions reached by their authors, and since the basis for those
conclusions was not provided, cross-examination was the best
available means of knowing the case it would have to meet and
of testing the assumptions and research on which the conclu
sions were reached.
4) The Appellants had requested the Commission to order
disclosure of certain information by the Applicants [sic], or, in
the alternative, if disclosure were not ordered, to allow the
Appellants the opportunity to cross-examine to elicit such of
the requested information as might be necessary to present its
[sic] case. If such disclosure were not ordered by the Commis
sion, it would not be practical for the Appellant to retain its
own expert to prepare its own evidence as the studies did not
contain enough hard data to permit the Appellants' expert to
analyze, accept or reject the conclusions contained in the
studies. This left cross-examination as the only route for the
Appellant to test and rebut this evidence.
In a telex dated May 6, 1980, the Commission
denied the appellants' request for cross-examina
tion. That telex read as follows:
REQUEST FOR OPPORTUNITY TO CROSS-EXAMINE AUTHORS
OF VARIOUS STUDIES, WHICH ARE PART OF APPLICATIONS,
AND DIRECTORS AND MANAGERS OF CANADIAN CABLESYS-
TEMS AND PREMIER COMMUNICATIONS HAS BEEN CON
SIDERED; THE COMMISSION HOWEVER, HAS DETERMINED
THAT NO COMPELLING CASE HAS BEEN MADE TO CAUSE IT TO
VARY FROM ITS ESTABLISHED POLICY AND PRACTICES ON
THIS ISSUE AT THIS TIME AND, THEREFORE, YOUR REQUEST
IS DENIED.
THE APPLICANT HAS BEEN DIRECTED TO HAVE THE AUTHORS
OF THOSE REPORTS, THAT IT WISHES THE COMMISSION TO
CONSIDER, AVAILABLE AT THE PUBLIC HEARING FOR QUES
TIONING BY THE COMMISSION.
The public hearing commenced on May 20,
1980, and lasted for four days. At the outset, the
appellants' counsel renewed his application for
leave to cross-examine the authors of the studies
contained in the Blue Book. That application was
denied. During the hearing, none of the expert
witnesses were sworn or cross-examined by any
party. However, the commissioners and the Com
mission's counsel questioned some of the experts
who had written the studies in the Blue Book. The
appellants' counsel made oral representations but
dit not try to rebut by expert evidence the studies
contained in the Blue Book.
Nine members of the Commission sat at the
public hearing: six full-time members and three
part-time members. After the hearing, the matter
was considered at meetings of the Commission
held on July 9 and 10, 1980. The nine members
who had sat at the hearing were present at those
meetings, together with five other members: one of
them was a full-time member, Mr. Lasalle; the
other four were part-time members. At a meeting
of the Executive Committee of the Commission,
held on July 11, 1980, the decision was made to
grant CCL's application. The six commissioners
who had sat at the public hearing participated at
that meeting, together with Mr. Lasalle, who had
not sat at the public hearing.
On July 30, 1980, the Commission issued its
decision. Its reasons indicated that it had weighed
the evidence and arguments and found in favour of
CCL.
By order of this Court made on April 7, 1981,
the appellants obtained leave to appeal from that
decision on the following two questions of law
only:
1. In the circumstances of this matter, did the members of the
Commission who purported to make the decision under review,
have the authority to do so?
2. Did the Commission err in law when it received and con
sidered expert evidence submitted as a part of the case submit
ted by the respondent Canadian Cablesystems Limited without
such experts having been sworn and when it denied to the
applicants the opportunity to cross-examine those experts?
I. Did the members of the Commission who pur
ported to make the decision have the authority
to do so?
It is common ground that the decision under
attack was not made only by the members of the
Commission who sat at the public hearing. It is the
appellants' submission that only those commission
ers who had sat at the public hearing should have
participated in the decision.
In general, it is a breach of natural justice for a
member of a tribunal to participate in a decision if
he has not heard all the oral evidence and the
submissions. 2 However, that rule is clearly not
applicable when its application is excluded by the
2 See: de Smith's Judicial Review of Administrative Action,
Fourth Edition, by J. M. Evans, p. 219.
governing statute. This is, in my view, the situation
here.
The decision of the Supreme Court of Canada in
Canadian Radio-television and Telecommunica
tions Commission v. CTV Television Network
Limited, et al. [[1982] 1 S.C.R. 530]; 41 N.R.
271, establishes clearly, in my view, that the prin
ciple "He who hears shall decide" does not apply
to decisions made by the Executive Committee of
the CRTC pursuant to section 17 of the Broad
casting Act following a public hearing held pursu
ant to section 19 of the same Act. Counsel for the
appellants argued that what Chief Justice Laskin,
speaking for the Court, said on this point in the
CTV case was obiter and not binding on this
Court. Even if this were true, that dictum of the
Chief Justice appears to me to be so clearly well-
founded that it should be followed.
In order to be able to argue that the CTV
decision of the Supreme Court was not applicable
to this case, counsel for the appellants submitted
that the decision under attack was a decision that
had to be made by the whole Commission and
that, in effect, had been made by the Commission
rather than by the Executive Committee. That
argument is untenable. First, the record shows
clearly that the decision under attack was made by
the Executive Committee of the Commission.
Counsel's assertion that it was made by the Com
mission ignores and contradicts the affidavit of the
secretary of the Commission. Second, the decision
under attack was a decision which had to be made
by the Executive Committee rather than by the
Commission. The acquisition of the control of
Premier and its subsidiaries had to be approved by
the CRTC because the Executive Committee, in
issuing the broadcasting licences of those subsidi
aries, had subjected them to the condition that the
effective control of the licensees shall not change
without the approval of the Commission. The
jurisdiction of the Commission to approve a
change in the control of the licensed companies
was merely an extension of its jurisdiction to issue
the licences and was properly exercised by the
Executive Committee. To put it in another way,
when the Executive Committee, in granting the
licences to the subsidiaries of Premier, prescribed
that any change in the effective control of the
licensees would have to be approved by the Com
mission, it clearly meant to refer to the approval of
the Executive Committee rather than the full
Commission.
For those reasons, I am of opinion that the
appellants' first submission should be dismissed.
II. Did the Commission err in law when it
received and considered the unsworn evidence
of experts whom the appellants had had no
opportunity to cross-examine?
It is worth noting that the appellants no longer
contend that the Commission erred in receiving
unsworn evidence. They expressly abandoned that
contention. Their sole argument, on this branch of
the case, is that the Commission violated the rules
of natural justice when, after denying them the
right to cross-examine the authors of the studies
contained in the Blue Book, it nevertheless took
those studies into consideration in reaching its
decision.
Before disposing of CCL's application, the Com
mission decided to hold public hearings at which
all interested parties had, pursuant to the Rules of
the Commission, the right to be heard. The appel
lants had therefore the right, submitted their coun
sel, to appear before the Commission and oppose
CCL's application; in denying them the right to
cross-examine, said he, the Commission denied
them the right to oppose CCL's application in a
meaningful way. In making that argument, coun
sel relied mainly on the decision of the Supreme
Court of Canada in Corporation of the Township
of Innisfil v. Corporation of the Township of
Vespra, et a1., 3 where it was held that the Ontario
Municipal Board had erred in law in denying to a
party appearing before it to oppose an application
the right to cross-examine a witness whose evi
dence had supported the application.
3 [ 1 98 1 ] 2 S.C.R. 145.
The Innisfil decision has, in my view, no
application here. In that case, the Legislature had
prescribed, as found by the Supreme Court, 4
... a duty in the Board to hear all objections, and under The
Statutory Powers Procedure Act, 1971, supra, s. 10(c) and s.
23(2), the requirement in the Board to afford an opportunity to
parties appearing to cross-examine witnesses.
It is for that reason, as I interpret that decision,
that the Court held that the Ontario Municipal
Board had erred in law in denying the right to
cross-examine. The situation here is entirely differ
ent. There is no provision in the Broadcasting Act
or the applicable regulations expressly prescribing
that those who appear before the Commission shall
have the right to cross-examine witnesses. And I
cannot find any provision which would impliedly
recognize that right. Under section 19 of the
Broadcasting Act, the Commission was under no
duty to hold a public hearing in connection with
CCL's application unless it deemed "such a hear
ing to be desirable". If the Commission had decid
ed not to hold such a hearing, the appellants would
have had no opportunity to appear before the
Commission, oppose the application and cross-
examine. In the absence of any statutory provision
expressly giving to those who appear at a public
hearing the right to cross-examine, it is impossible
to say that the appellants were given that right by
statute, unless it be considered that the right to
cross-examine is a necessary ingredient of a public
hearing, a proposition which, in my view, cannot
be supported by any authority. There was, there
fore, no statutory requirement that the appellants
be given the opportunity to cross-examine.
Counsel for the appellants also invoked the prin
ciples of natural justice and argued that the Com
mission had violated those principles in denying
him the right to cross-examine. It is common
ground that natural justice does not always require
that parties to a hearing be granted the right to
4 [1981] 2 S.C.R. 145, at p. 171, first full paragraph.
cross-examine. 5 In my view, there was no such
requirement in the circumstances of this case. This
was not a hearing held to investigate a charge
against the appellants; there was no lis between
the appellants and the applicant before the Com
mission; the decision to be made by the Commis
sion could not directly affect the interests of the
appellants. The question to be decided by the
Commission was whether, in the public interest,
CCL could be allowed to take control of several
cable-television broadcasting companies. The
Commission had the authority to hold a public
hearing on that question and, subject to the Rules
adopted pursuant to section 21 of the Broadcasting
Act, it was, during that hearing, the master of its
own procedure. Its duty in the conduct of that
hearing was to follow its rules of procedure, which
say nothing of the right to cross-examine, and to
"act in good faith and fairly listen to both sides
." 6 There was, in my opinion, no obligation to
give the appellants or anyone else the opportunity
to cross-examine witnesses.
For those reasons, I would dismiss the appeal.
HEALD J.: I agree.
COWAN D.J.: I agree.
5 See: Hoffman-La Roche Limited v. Delmar Chemical
Limited, [1965] S.C.R. 575; Armstrong v. The State of Wis-
consin et al., [1973] F.C. 437 (C.A.), at pp. 440-444; Seafarers
International Union of Canada v. Canadian National Railway
Company, [ 1976] 2 F.C. 369 (C.A.); In re Canadian Radio-
Television Commission and in re London Cable TV Limited,
[1976] 2 F.C. 621 (C.A.), at p. 623; In re Anti-dumping Act
and in re Re-hearing of Decision A-16-77, [1980] 1 F.C. 233
(C.A.), at p. 239; Corporation of the Township of Innisfil v.
Corporation of the Township of Vespra, et al., [1981] 2 S.C.R.
145.
6 Board of Education v. Rice, et al., [1911] A.C. 179 (H.L.),
at p. 182.
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.