Date: 20151112

Docket: A-421-14

Citation: 2015 FCA 251

CORAM:

NADON J.A. SCOTT J.A. BOIVIN J.A.

 

BETWEEN:

CBC/RADIO-CANADA

Appellant

and

THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA and DR. KARIM AMELLAL

Respondents

Heard at Ottawa, Ontario, on April 14 and 15, 2015.

Judgment delivered at Ottawa, Ontario, on November 12, 2015.

REASONS FOR JUDGMENT BY:	NADON J.A.
CONCURRED IN BY:	SCOTT J.A. BOIVIN J.A.

 

Date: 20151112

Docket: A-421-14

Citation: 2015 FCA 251

CORAM:

NADON J.A. SCOTT J.A. BOIVIN J.A.

 

BETWEEN:

CBC/RADIO-CANADA

Appellant

and

THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA AND DR. KARIM AMELLAL

Respondents

REASONS FOR JUDGMENT

NADON J.A.

I.                   Overview

[1]               This is an appeal brought by the Canadian Broadcasting Corporation (“CBC”) from a decision of Martineau J. (the “Judge”) of the Federal Court dated September 8, 2014 (2014 FC 849)(sometimes referred to as the second decision). In this decision, the Judge confirmed his findings from an earlier decision dated May 29, 2012 (2012 FC 650) (sometimes referred to as the first decision) in which he found that the Commissioner of Official Languages (the “Commissioner”) and the Canadian Radio-television and Telecommunications Commission (the “CRTC”) had concurrent jurisdiction to investigate complaints related to the Official Languages Act (R.S.C., 1985, c. 31 (4th Supp.)) (the “OLA”) against CBC.

[2]               More particularly, in his decision of May 29, 2012 the Judge expressed the view that the CRTC and the Commissioner shared jurisdiction to investigate complaints pertaining to the negative impacts on the Francophone official language minority community (“OLMC”) located at Windsor, Ontario arising from cuts made by CBC to the amount of local and regional programming content provided by the local Francophone radio station in Windsor, CBEF Windsor (“CBEF Windsor”). However, the Judge took note that proceedings were underway before the CRTC pertaining to the renewal of CBC’s radio licences and decided that the CRTC was “in a better position than the Federal Court to determine the dispute on its merits and to grant the [respondents] appropriate relief, if applicable” (paragraph 92 of the first decision). He therefore stayed the Federal Court proceedings brought by the Commissioner and Dr. Amellal pending the resolution of the CRTC proceedings.

[3]               In his decision of September 8, 2014, the Judge confirmed his findings with respect to the concurrent jurisdiction issue as it pertained to the investigation of OLA-related complaints against CBC. He also declared that CBC was subject to the OLA, specifically Part VII (sections 41 to 45) and that it had the obligation thereunder to enhance the vitality of the OLMCs and to support and assist in their development. The Judge further held that the CRTC was the better forum to hear those complaints. To this end, he considered the decision rendered by the CRTC on May 28, 2013 (the “CRTC’s decision”) which, inter alia, ordered CBC to increase the amount of local programming provided by CBEF Windsor and declared that he was satisfied that the CRTC had reached a fair result consistent with the purpose of the OLA and that it had, in effect, addressed most of the issues raised in the proceedings before him. Finally, the Judge found that the doctrine of issue estoppel applied in the circumstances to bar the Federal Court proceedings from continuing and he thus ordered a permanent stay of these proceedings.

II.                Facts and Decisions Below

[4]               In 2009, CBC was forced to make substantial nationwide budget cuts. In response, it adopted a recovery plan which, inter alia, involved financial cuts to the amount of local and regional content developed by CBEF Windsor, the only French-language radio station in southwestern Ontario. The cuts reduced CBEF Windsor's employees from ten to three, eliminated three programs produced locally and reduced the local and regional content in programming from 36.5 hours to 5 hours per week.

[5]               The French-speaking OLMC in southwestern Ontario (of which Dr. Amellal, one of the Respondents, is a member) objected to these cuts. They formed a volunteer association, the Comité SOS CBEF (the “Comité”), and lodged complaints with both the Commissioner and the CRTC regarding the negative impact these cuts would have upon the French-speaking minority in this region. When the CRTC failed to act quickly enough, the Commissioner began an investigation pursuant to section 56 of the OLA.

[6]               CBC refused to cooperate with the Commissioner's investigation. In its view, the Commissioner did not have jurisdiction to review its programming activities and those activities were not subject to OLA-related obligations. Instead, it argued that those matters were properly within the CRTC's jurisdiction.

[7]               Nevertheless, the Commissioner wrote a report on this matter. He stated that CBC had failed to hold consultations with the OLMC in southwestern Ontario before the 2009 budget cuts and similarly that it had not conducted an impact analysis of these cuts. He denounced the negative impact of these cuts and found that CBC had not complied with its obligation to take "positive measures" to enhance the vitality of Canada's English and French linguistic minority communities and to assist in their development (OLA, section 41(2)). The Commissioner urged CBC to review its decision. When CBC refused to do so, the Commissioner began proceedings in the Federal Court.

[8]               In his Notice of Application brought pursuant to section 77 of the OLA, the Commissioner sought various declarations from the Federal Court: that CBC was subject to the OLA, particularly sections 41-45; that he had jurisdiction to investigate the complaints regarding the 2009 budget cuts; that CBC had failed to comply with section 41 of the OLA; and that CBC should review its decision to cut the level of local and regional content at CBEF Windsor and make necessary arrangements to compensate the OLMC for the negative impact of its 2009 decision. Dr. Amellal, for his part, sought a permanent injunction forcing CBC to reinstate the previous level of local and regional content provided by CBEF Windsor.

A.                Federal Court Decision dated May 29, 2012

[9]               The May 29, 2012 decision stems from a motion for summary dismissal brought by CBC. Although CBC accepted that its non-programming activities were subject to the OLA, it argued that its programming services, including the transmission and distribution of all radio broadcast services, were governed exclusively by the broadcasting policy of Canada and the conditions of licence and expectations set by the CRTC pursuant to the Broadcasting Act, S.C. 1991, c. 11 ("BA"). In turn, the Commissioner (supported by Dr. Amellal) argued that he had jurisdiction to oversee CBC's decisions which could affect the vitality of French and English minorities and the development of OLMCs.

[10]           In his reasons, the Judge opined, after consideration of a number of judicial decisions pertaining to the CRTC's jurisdiction, that these decisions suggested that he should refrain from swiftly and mechanically following the CRTC's exclusive jurisdiction model simply because CBC's programming was affected by the 2009 budget cuts (paragraph 50). After considering the case law, he found that there was no conflict between the OLA and the BA and that the Federal Court had prima facie jurisdiction to determine the scope of subsection 41(2) of the OLA and whether CBC had breached its obligations thereunder. The Judge noted that the OLA reflected a social and political compromise which gave the Commissioner the powers of a true linguistic ombudsman and created a judicial avenue for relief in the situations set out in subsection 77(1) of the OLA (paragraph 51).

[11]           Nonetheless, although of the view that the Federal Court had jurisdiction under section 77 of the OLA according to the concurrent jurisdiction model, the Judge held that it would be preferable for the CRTC to first review CBC’s decision to decrease the level of regional and local programming content broadcast by CBEF Windsor. He noted that the CRTC's practice was to integrate the purpose of section 41 of the OLA into the activities that it carried out. It did so by considering the needs of OLMCs in its decisions (paragraph 88). Therefore, though the Federal Court had jurisdiction "in the narrow sense" to entertain this application under sections 76-81 of the OLA, the Judge was of the view that the CRTC was in a better position to assess the impact of the budget cuts on CBC's programming, including those broadcast from CBEF Windsor. He therefore ordered an interim stay of proceedings pending the CRTC's decision and held that it would be open to any of the parties to ask the Federal Court to re-open or permanently stay the proceedings after the CRTC had rendered its decision.

B.                 CRTC’s decision dated May 28, 2013

[12]           Both the Commissioner and the Comité intervened before the CRTC. In its decision, the CRTC first summarized the facts and the decision rendered by the Judge on May 29, 2012. It noted that CBC had offered to increase the amount of local programming offered at CBEF Windsor from five to ten hours per week (CRTC’s decision, paragraphs 257-261).

[13]           The CRTC took note of the Comité’s concerns, namely that CBEF Windsor was the only French-language radio station for the City of Windsor and that it served a vital role in the maintenance of the French-speaking minority. It also noted that, according to the Comité, Windsor had one of the highest assimilation rates among Francophone OLMCs in Canada and further noted that the Comité had requested the CRTC to reinstate the pre-2009 amount of local programming. The CRTC also took note of the Commissioner's submissions to the effect that CBC's actions constituted a breach of its obligations under the OLA as its actions had a negative impact upon the region's already fragile Francophone community. Further, the Commissioner argued before the CRTC that the manner in which CBC had reduced the local programming was contrary to the principles of the OLA, which provide that CBC’s programming must be in English and French, and that it should reflect the different needs and circumstances of each official language community, including the needs of OLMCs (CRTC’s decision, paragraphs 262-264).

[14]           In its conclusion, the CRTC noted that subparagraph 3(1)(m)(iv) of the BA provides that CBC’s programming shall "be in English and in French, reflecting the different needs and circumstances of each official language community, including the particular needs and circumstances of English and French linguistic minorities”. The CRTC also noted that no other radio station in CBC’s network serving an OLMC provided less than 15 hours of local programming per week. Therefore, it ordered CBC to increase the amount of local programming to 15 hours per week at CBEF Windsor (CRTC’s decision, paragraphs 265-267).

[15]           In addition, the CRTC required CBC to consult with OLMCs at least once every two years to discuss issues which affect their development and vitality. It also required CBC to report annually on these consultations and to demonstrate how the consultations affected CBC's decision-making process (CRTC’s decision, Appendix 2, paragraph 1). The CRTC noted that these consultations were essential in order for CBC to meet the requirement imposed by subparagraph 3(1)(m)(iv) of the BA (CRTC’s decision, paragraph 354).

[16]           None of the parties involved in this appeal challenged the CRTC’s decision.

C.                 The Federal Court Decision of September 8, 2014

[17]           Following the release of the CRTC’s decision, the parties returned to the Federal Court. CBC reiterated its previous argument and sought a declaration from the Judge that the CRTC has exclusive jurisdiction over programming concerns (such as this complaint) and sought the summary dismissal of the proceedings. It also argued that there was no need for the Federal Court to re-open the proceedings considering that the CRTC’s decision had considered CBC's official language obligations and that it had prescribed the appropriate remedy (paragraph 15).

[18]           With respect to the merits of the application, the Commissioner and Dr. Amellal argued that the Federal Court proceedings should be re-opened as the CRTC’s decision did not resolve the matter or go far enough. They asked that the stay be lifted, that examination of CBC's representative recommence and that a hearing on the merits be scheduled as soon as possible to determine the alleged breach of the OLA and to provide any appropriate remedy in the circumstances (paragraph 16). With regard to the jurisdiction issue, the Commissioner argued that as that issue had been determined by the Judge in his first decision it was no longer open for debate.

[19]           In his decision of September 8, 2014, the Judge indicated that he had to determine two issues:  (1) whether a final judgment should issue concerning the enforcement and jurisdictional issues addressed in his first decision and (2) whether the interim stay of proceedings should be lifted and the Federal Court proceedings resumed. For the reasons summarized below, the Judge confirmed the findings he made in the first decision regarding the concurrent jurisdiction issue and ordered a permanent stay of the Federal Court proceedings.

(1)               The Judge's analysis on the jurisdictional issue

[20]           The Judge noted that public policy concerns pointed toward the CRTC having jurisdiction over CBC's broadcasting activities under the BA (paragraph 26). However, he rejected CBC's arguments that it was subject to the CRTC's exclusive jurisdiction for programs produced or broadcast. He held that all of CBC’s programs involved language and therefore involved OLA obligations. He also rejected CBC's argument that it was not subject to sections 41-45 of the OLA with regard to its broadcasting services (paragraph 32).

[21]           On this point, the Judge declared that CBC was subject to sections 41-45 of the OLA and, pursuant to those provisions, it had an obligation to take positive measures to enhance the vitality of OLMCs and to support and to assist in their development and further to act in a manner that did not hinder the development and vitality of Canada's official language minorities (paragraph 33). He noted that this legal obligation derived in part from the unwritten constitutional principle of respect for minorities (paragraphs 34-36, 43) and from the quasi-constitutional status of the OLA. Therefore, section 41 created a legally enforceable obligation on all federal institutions, defined by the OLA to include CBC, to take “positive measures” (paragraph 40). Such an obligation extended to CBC's broadcasting and programming activities. The Judge also found that this was a quasi-constitutional obligation, no matter the fact that, according to subsection 82(1) of the OLA, Part VII (sections 41-45) did not prevail over other statutes in the event of an inconsistency (paragraph 43).

[22]           The Judge specifically rejected the idea that CBC's OLA obligations were embedded in the BA itself and therefore subject to the CRTC’s exclusive jurisdiction. The Judge said that although the BA aligned with constitutional principles such as respect for minorities and the OLA, it did not grant the CRTC exclusive jurisdiction. Rather, the best way to reconcile linguistic issues arising from CBC's broadcasting activities was to adopt the concurrent jurisdictional model. Issues concerning the respect for and protection of OLMCs were to be examined independently of any regulatory mandate conferred by Parliament on the CRTC (paragraph 44).

[23]           Therefore, the Judge held that the Commissioner had the jurisdiction to investigate complaints filed against CBC under the OLA, specifically Part VII, with regard to the negative impacts upon the OLMC in southwestern Ontario due to the 2009 budget cuts.

[24]           The Judge also considered Parliament's intent and the nature of the dispute in question to determine the appropriate jurisdictional model in line with Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 SCR 185 ("Morin") (paragraph 46). With respect to Parliament's intent, he agreed that Canada's broadcasting system was unique and that the CRTC had the power to regulate and monitor all aspects of that system. However, he noted that the BA did not expressly exclude the Commissioner’s or the Federal Court's jurisdiction (paragraph 46) and that the CRTC shared jurisdiction with other federal bodies, such as the Competition Bureau, in certain circumstances. The mere existence of the BA and of a specific regulatory framework thereunder was insufficient to oust the enforcement of the OLA and the general control exercised by the Commissioner and the Federal Court to ensure compliance with the OLA and the constitution (paragraph 56).

[25]           With respect to the nature of the dispute, the Judge noted that the complaints in this case related to programming changes and the decision-making process adopted in response to the 2009 budget cuts (paragraph 50). He held that the subject matter of the CRTC's exclusive jurisdiction did not extend to the protection of linguistic minorities or quasi-constitutional rights, no matter the fact that its practice was to take those considerations into account in its decisions. Rather, the expertise and role of guardian of linguistic concerns was housed with the Commissioner. Part of the Commissioner's powers was the investigation of complaints against federal institutions which failed to comply with their OLA obligations (paragraphs 50 and 72).

(2)               The Judge's analysis on re-opening the Federal Court proceedings or instituting a permanent stay

[26]           The Commissioner and Dr. Amellal argued that the CRTC’s decision did not appropriately dispose of the merits of the parties' dispute and that the matter was not moot. Therefore, they requested that the interim stay be lifted and that the Federal Court proceedings be resumed. The Commissioner argued that the CRTC’s decision had only considered CBC's BA-related obligations and that the parties had sought different remedies before the CRTC and the Federal Court. In the former forum, the complainants sought the reinstatement of the pre-budget cuts to local programming content whereas in the latter forum, the Commissioner and complainant sought clarification of CBC's language obligations and a declaration that CBC breached its OLA obligations (paragraphs 80-81).

[27]           CBC argued that the stay of the Federal Court proceedings should not be lifted by virtue of issue estoppel (paragraph 84). In short, the CRTC had considered all the issues, it had rendered a final decision and the same parties had spoken to the same issues before the CRTC. Further, there was no problem of unfairness which could prevent the application of issue estoppel.

[28]           The Judge held that the Federal Court proceedings were largely moot as a result of the CRTC’s decision (paragraph 85). He found that it was not in the interest of justice to lift the stay of proceedings and converted the interim stay into a permanent one. He found that the doctrine of issue estoppel applied and that it was not appropriate to exercise his discretion to hear the case on its merits (paragraph 91).

[29]           The Judge noted that the CRTC’s decision did not explicitly refer to the OLA. However, he found that it ensured, in practice, that the underlying objectives of section 41 of the OLA were protected. He also considered the consultation and annual report requirements that the CRTC’s decision imposed upon CBC (paragraphs 92-96). He held that the CRTC’s decision had effectively denounced the negative impact of the budget cuts on the complainants by imposing prospective consultation requirements upon CBC (paragraph 98). He therefore concluded that the CRTC’s decision was a fair result and consistent with the objectives of the OLA (paragraph 100).

III.             Legislative Provisions

[30]           The provisions of the BA and of the OLA relevant to this appeal are set out in Appendix A and Appendix B to these reasons.

[31]           I now turn to the issues raised by this appeal.

IV.             Issues

[32]           The parties submit that three issues must be determined by this appeal:

1.      What is the applicable standard of review?

2.      Does the CRTC have exclusive jurisdiction over OLA-related complaints which relate to CBC's programming activities?

3.      Is the Judge's declaratory order that CBC should abide by Part VII of the OLA too vague?

V.                Analysis

[33]           For the reasons that follow, I am of the opinion that we need not address these issues. More particularly, I believe we ought to allow the appeal and set aside the Judge’s decision.

[34]           I begin by examining the Judge’s two decisions in order to determine what he actually decided. In his first decision, the Judge clearly found, in his reasons, that the CRTC did not have exclusive jurisdiction over the issues raised by the Commissioner and Dr. Amellal, but he made no order to that effect. Rather, his order dealt only with the stay of proceedings, the adjournment of the examinations on discovery and the hearing on the merits which had previously been set down. His order reads as follows:

THE COURT ORDERS that

1.         The proceedings in this case are stayed to allow the CRTC to make its decision on the applications for renewal of the Corporation’s licences and on any complaint or intervention by the applicants in respect of the decrease in local and/or regional programming hours broadcast by CBEF Windsor;

2.         The continuation of any examinations already scheduled and the hearing on the merits set to begin on October 15, 2012, are adjourned sine die;

3.         Once the CRTC has made its decision regarding the applications for renewal of the Corporation’s licences, it will be open to any of the parties, upon application, to ask the Court to extend or put an end to the stay of proceedings, to resume examining the record or to dismiss this application, having consideration for the applicable laws and all of the legal principles applicable in this case;

4.         In the interim, the judge in this case reserves jurisdiction to issue any other direction or make any other order, on his own initiative or upon the application of a party, in the event of any new developments; and

5.         Without costs.

[35]           Believing that the Judge had actually made a determination on the jurisdiction issue in his first decision, CBC filed a motion for an extension of the delay to file a Notice of Appeal of the Judge’s Order of May 29, 2012. CBC’s motion was dismissed by my colleague Madame Justice Gauthier on the grounds that the order made by the Judge did not address nor deal with any of the conclusions or declarations sought in the Notice of Application filed on August 10, 2010, including the question of whether the Commissioner had jurisdiction to address and deal with the complaints filed against CBC pursuant to the OLA.

[36]           In concluding her reasons, Madame Justice Gauthier indicated that the question of jurisdiction as between the Commissioner and the CRTC would be the subject of a final decision by the Judge following the decision that the CRTC was expected to render. It is clear from Madame Justice Gauthier’s reasons that she considered that, in all of the circumstances, the Judge had simply made non-binding preliminary comments on the question of jurisdiction prior to the rendering of a final decision in the future.

[37]           Following the CRTC’s decision, the parties returned before the Judge for arguments on whether, inter alia, the Judge ought to lift the stay which he had ordered in his first decision. At the commencement of his second decision (paragraph 2), the Judge indicated that he had to address two issues, namely whether he should issue a final judgment on enforcement and jurisdictional issues addressed “in the interlocutory decision” and whether it was appropriate to lift the stay which he had ordered on May 29, 2012 and to resume proceedings in light of recent developments “since the interlocutory decision”. I have a number of comments to make with regard to the Judge’s decisions.

[38]           With respect to the first decision, there can be no doubt that although he purported to determine the jurisdictional issue, the Judge failed to make any order in that regard. In my view, what the parties ought to have done, following receipt of the Judge’s first decision, was to bring a motion pursuant to Rule 397(1)(a) of the Federal Court Rules (SOR 98/106) which provides that the parties may request the Court to reconsider the terms of an order which does not accord with the reasons given. In other words, the Judge ought to have been asked to amend his order so as to include the findings which he had made on the jurisdiction issue. However, that did not happen and, as a result, Madame Justice Gauthier dismissed CBC’s motion for an extension of the delay to file a Notice of Appeal.

[39]           I now turn to the Judge’s second decision. Having stayed the proceedings before him in his order of May 29, 2012, the Judge could not entertain further proceedings unless he was prepared to lift the stay which he had ordered. In the event, he refused to lift the stay of proceedings but nonetheless proceeded to write extensive reasons in which he reiterated the view on the jurisdiction issue which he had expressed in his first decision. In my respectful opinion, the Judge was functus to opine and determine any of the issues which were before him unless he lifted the stay.

[40]           The outcome of the decisions rendered by the Judge is, in my respectful opinion, unsatisfactory as he failed to properly address the issues before him. On the one hand, the first decision does not determine the jurisdiction issue because the order made by the Judge is silent on that count. On the other hand, the second decision does not, in law, make any determination on the issue of jurisdiction because the Judge refused to lift the stay of proceedings which he had imposed in his first decision.

[41]           When the panel brought up these difficulties with the parties at the time of the hearing, they impressed upon us that they wanted the Court to address, if possible, the substantive issues raised in the proceedings. After careful consideration of the issues raised by the proceedings and of the submissions made by the parties, I am of the opinion that there are a number of reasons which militate against addressing the substantive issues raised in this appeal. However, in concluding that we should not address the substantive issues raised by the parties, I have taken the Judge’s second decision as having validly decided the issues which he purported to decide. In other words, I have not considered that he was functus to make the determinations that he made.

[42]           I will now set out my reasons for concluding that we should not deal with the substantive issues and that we should allow the appeal. I begin by reproducing section 77 of the OLA which provides as follows:

[emphasis added]

[43]           As appears from subsection 77(4) above, the subsection clearly requires the Federal Court to determine that a federal institution has failed to comply with the provisions of the OLA before it may grant a remedy (see Lavigne v. Canada (Human Resources Development), [2002] 2 FCR 165, 228 F.T.R. 185 where Lemieux J. of the Federal Court held, at paragraph 63 of his reasons, that no remedy could be granted pursuant to subsection 77(4) of the OLA unless the Court concluded that a federal institution had failed to comply with its obligations under that Act).

[44]           It is clear, in my respectful opinion, that in the present matter the Judge did not make any finding or reach any conclusion to the effect that CBC had failed to comply with any of its obligations under the OLA since he refused, for the reasons he gave, to deal with the merits of the case brought by the Commissioner and Dr. Amellal. More particularly, he so refused because he was satisfied that the CRTC had properly dealt with the issues before it and that it had resolved these issues in a manner that was “fair and consistent with the objectives of the OLA” (paragraph 100 of the second decision).

[45]           However, in fairness to the Judge, he appears to suggest in his reasons of the second decision that the CRTC had found, in effect, that CBC had not complied with its OLA obligations. This view is perhaps why he felt he could provide a remedy to the respondents under section 77 of the OLA. At paragraph 98 of his second decision, the Judge made the following remarks:

[98]      Even if the CRTC did not formally determine, in its 2013 decision, whether the Corporation failed to, during the last licence period, respect any positive requirement in relation to carrying out consultations or analyzing the impact of its decision, it is clear that, in a prospective manner, by imposing, for the first time, on the Corporation a general requirement to hold consultations and report periodically to the OLMCs, and by prescribing a minimum number of local programming hours in French radio stations outside Quebec, the CRTC repudiated the budget cuts in the regions that were denounced by the interveners.

[46]           As the Judge recognizes at paragraph 98 above, the CRTC did not actually make any finding that CBC had failed to comply with its OLA obligations. In my view, it is beyond doubt that the CRTC made no such finding nor could it. I am satisfied that the determination made by the CRTC with respect to the renewal of CBC’s licences and, in particular, its decision to impose upon CBC a number of conditions of licence that meet the expectations of the respondents (and seemingly those of the Judge) do not constitute a finding that CBC failed to comply with its obligations under the OLA.

[47]           In any event, subsection 77(4) of the OLA is clear. It requires the Federal Court to make a determination that a federal institution has failed to comply with the OLA before it can grant a remedy to a complainant. That did not happen in the present matter.

[48]           Consequently, I have difficulty with the remarks which the Judge made at paragraph 101 of his reasons of the second decision, that the Court’s power under section 77 “is essentially ‘remedial’” and that the Court is not there to investigate the “alleged failure of a federal institution to uphold its duty to take positive measures”. In my respectful view, it is the Federal Court’s duty under section 77 of the OLA to determine whether there has been a failure to comply with the OLA and, if so, to grant the appropriate remedy in the circumstances of the case. This means that it is up to the Federal Court to make the relevant findings with respect to the federal institution’s conduct, based on the evidence before it, in order to determine whether there has been a breach of the OLA.

[49]           What is also clear is that the CRTC does not have the power under the BA to determine whether there has been a breach of the provisions of the OLA. The CRTC’s mandate under the BA is otherwise. Although it is empowered, pursuant to subsection 46(4) of the BA, to “have regard to the principles and purposes of the OLA” in determining whether broadcasting services should be renewed and/or extended, the CRTC cannot reach any conclusion regarding breaches of the OLA. That, in my respectful view, is an entirely different matter.

[50]           In my view, the fact that the CRTC (in the Judge’s opinion) had, in effect, put an end to CBC’s violation of the OLA and that the CRTC (in the Judge’s opinion) had provided a complete remedy for the future is an irrelevant consideration. The simple fact is that what was before the Judge was whether CBC had breached its obligations under the OLA when it decided, in 2009, to make the budget cuts which affected CBEF Windsor. More particularly, did CBC’s decision and the consequences which resulted therefrom constitute a failure on the part of CBC to comply with its OLA obligations.

[51]           That question, in my respectful view, has yet to receive an answer. The fact that the CRTC has imposed conditions of licence on CBC which meet some of the respondents’ demands is not an answer to the question that was before the Judge. The CRTC’s decision, rendered some four years after the budget cuts made by CBC in 2009, did not address the period elapsed between 2009 and 2013. In other words, by imposing conditions of licence on CBC, the CRTC gave CBC its marching orders for the next licence period. However, in so doing, the CRTC made no pronouncement, nor did it purport to make any, regarding the period of 2009 to 2013. Thus the question that was before the Judge was not addressed nor dealt with.

[52]           Because he refused to lift the stay of proceedings which he had imposed in his first decision, the Judge was not called upon to make any determination as to whether the budget cuts of 2009 constituted a failure by CBC to comply with the OLA. More particularly, he did not hear the parties’ arguments with regard to the questions raised by the respondents in their application, other than on the question of jurisdiction.

[53]           I therefore conclude that having made no determination as to CBC’s failure to comply with the OLA, the Judge could not grant the respondents any of the remedies which they sought. This, in my view, is sufficient to dispose of the appeal. In other words, because the Judge could not grant any remedy to the respondents, CBC’s appeal must be allowed.

[54]           There are, however, other reasons why, in the circumstances, we should not deal with the jurisdiction issue. Before setting out those reasons, I must point out that neither the Commissioner nor Dr. Amellal appealed the Judge’s second decision. Consequently, we are not called upon in this appeal to decide whether the Judge was correct when he refused to lift the stay which he had imposed in the first decision. I would say, however, that I have difficulty with the Judge’s approach that, on the one hand, the Commissioner had jurisdiction to investigate the complaint made herein by Dr. Amellal and the Comité, and hence to institute proceedings under section 77 of the OLA, but that the Court should refuse to hear and determine the complaint because the CRTC is the better forum to resolve the matter. It appears to me, with respect, that if the Judge was right in his determination of the jurisdiction issue, then the Commissioner and Dr. Amellal should have been allowed to pursue the matter so as to obtain a determination on the merits of the complaint.

[55]           I am not, however, to be taken as saying that the Judge was correct to find that there was concurrent jurisdiction between the CRTC and the Commissioner in regard to the complaint made by Dr. Amellal and the Comité. Whether there is concurrent jurisdiction over all or certain aspects of the complaint is a question which, unfortunately, will have to be resolved another day.

[56]           The issue with regard to the question of jurisdiction is whether CBC’s programming activities are subject to the exclusive jurisdiction of the CRTC or whether there is a shared jurisdiction over these matters between the Commissioner and the CRTC. Before setting out my further reasons for not dealing with the jurisdiction issue, I will briefly summarize those submissions and concessions on the issue made by the parties which are particularly relevant.

[57]           For the CBC, the matter is quite straightforward. All of its programming activities are to be decided exclusively by the CRTC. It says that pursuant to section 51 of the BA, the CRTC is empowered to determine all of CBC’s programming activities, adding that the regulation, supervision and implementation of all aspects of the Canadian broadcasting system and the Canadian broadcasting policy were clearly entrusted to the CRTC.

[58]           CBC further says that in carrying out its aforesaid mandate, the CRTC, by reason of subsection 46(4) of the BA, is required to consider the principles and purposes of the OLA. Thus, in enacting the BA, Parliament intended to withdraw CBC from the Commissioner’s jurisdiction under the OLA insofar as its programming activities were concerned.

[59]           More particularly, CBC says that the broad powers given to the CRTC under the BA allow it, in granting licences to CBC, to oblige CBC to create programs that satisfy the linguistic expectations of OLMCs.

[60]           In making these submissions CBC says that the OLA is silent with regard to broadcasting and programming. In other words, no powers are given to the Commissioner over these matters.

[61]           On my understanding of its position, CBC does not deny that it is subject to section 41 of the OLA, but says that whatever obligations it may have under that provision, its obligations may only be determined by the CRTC which must consider CBC’s language obligations when it regulates and supervises its programming activities.

[62]           CBC also says that it is clear that the Commissioner has no expertise insofar as programming is concerned, adding that the language issues arising in this appeal are part and parcel of its programming activities.

[63]           CBC says that subjecting it to two jurisdictions with respect to its programming activities would cause havoc to its operations in that greater time would be required to deal with complaints and, it goes without saying, further expenses would have to be incurred.

[64]           Finally, CBC says that its independence in regard to its programming activities would be placed at risk if the Commissioner were allowed to investigate and intrude into its activities.

[65]           I now turn to the Commissioner’s and Dr. Amellal’s submissions. It goes without saying that they both disagree totally with CBC’s position.

[66]           The Commissioner says that the principal issue to be addressed in the appeal is the question of programming. More particularly, the Commissioner says that programming cannot be as broad and all-encompassing as CBC suggests. The Commissioner says that if CBC’s arguments are accepted, all of CBC’s activities will be exempt from the OLA, hence he will have no jurisdiction whatsoever over CBC in respect of language obligations arising from the OLA.

[67]           The Commissioner further says that there are no provisions, either in the BA or in the OLA, which exempt CBC from the OLA and from his jurisdiction thereunder. To the contrary, the Commissioner says that the OLA has entrusted to him the power to investigate all federal institutions including CBC, adding that as the Federal Court’s jurisdiction is tied to his jurisdiction it must determine the matters brought before it under section 77 of the OLA.

[68]           The Commissioner further says that the fact that the CRTC has jurisdiction to regulate and supervise the Canadian broadcasting system is not a bar to the exercise of his powers under the OLA.

[69]           The Commissioner concedes that the CRTC was given the jurisdiction under the BA to supervise and regulate all of CBC’s activities directly related to programming. However, in his view, this does not prevent him from investigating activities which have or might have an indirect effect on CBC’s programming.

[70]           This leads the Commissioner to make a distinction between programming and programming related activities. In other words, the fact that an activity might have an impact on CBC’s programming activities does not lead to the conclusion that such activity is removed from his jurisdiction. Consequently, the Commissioner submits that many of CBC’s activities cannot be characterized as programming activities and thus he has the power to investigate them.

[71]           Turning to the particular facts of the case, the Commissioner says that the dispute herein between the parties is whether CBC considered its obligations under section 41 of the OLA when it decided to make the cuts which impacted on CBEF Windsor. More particularly, the Commissioner says that the CRTC’s jurisdiction is one that pertains to the content of the programs produced and diffused by CBC, but not to the decision making process that took place at CBC in deciding that cuts had to be made.

[72]           Lastly, the Commissioner says that CBC’s submission that complaints which pertain to future programming should be dealt with exclusively by the CRTC does not address the question of whether he can investigate allegations that OLA obligations have been breached. In other words, the Commissioner does not dispute the fact that the CRTC properly exercised its jurisdiction when it imposed conditions on CBC’s licence for the period of the new licences including those conditions pertaining to language obligations and their impact on OLMCs.

[73]           As to Dr. Amellal, he adopts all of the Commissioner’s arguments, adding that the dispute between the parties pertains to the manner in which CBC made the impugned decision following the 2009 budget cuts and how that decision affected CBEF Windsor.

[74]           From the above, there can be no doubt that the true issue in these proceedings is whether the Commissioner has jurisdiction under the OLA to inquire into what CBC says are its programming activities. In that respect, CBC argues, as I have already indicated, that section 41 of the OLA is relevant to its programming activities insofar as the CRTC takes these considerations into account in exercising its jurisdiction under the BA. Thus, in that light, it cannot be said that CBC objects to the application of section 41 to its programming activities, but that it objects to the Commissioner asserting jurisdiction to investigate programming-related complaints which pertain to OLA subject matter, i.e. official languages. In CBC’s view, that sort of complaint is assigned exclusively to the CRTC by virtue of the BA.

[75]           It is trite to say that it cannot be disputed that the CRTC’s jurisdiction includes the regulation of CBC’s programming activities. However, as appears from the parties’ submissions, there is a difference of opinion between the Commissioner and CBC as to what constitutes programming. For CBC, programming is all encompassing and that is why it argues in this case that its decision to make cuts which, inter alia, affected CBEF Windsor constitutes programming. From the Commissioner’s point of view, that is an overly broad view of what programming is and thus cannot be right.

[76]           If I understand the Commissioner’s submissions correctly, he says that CBC’s broad definition of programming is an attempt to include in its programming activities the decision making processes undertaken in the lead up to programming activities. At the same time, the Commissioner concedes that he does not have jurisdiction to investigate the actual programs produced and disseminated from CBEF Windsor. However, the Commissioner submits that he had jurisdiction to investigate the context in which CBC’s decision to reduce the local and regional content of CBEF Windsor was made. He also says that the question of whether CBC took into account its obligations under section 41 of the OLA in making that decision is within his jurisdiction.

[77]           Thus, the nature of the dispute before us pertains not only to the end result of CBC’s decision making, i.e. the cutting of the local content at CBEF Windsor, but also to the lack of consultation with regard to the making of the initial decision to cut and the question of whether the concerns of the local OLMC were adequately addressed. Thus, the dispute was multifaceted. There was a programming aspect, i.e. the decision to cut the local content and the manner in which that was to be undertaken and an aspect that was, in a certain way, more peripheral to the issue of programming, i.e. that of the consultation involved and the considerations taken by CBC in making its decision. Those were the issues that were before the Judge which, in the event, he did not address.

[78]           In other words, the Judge took, in my respectful view, an absolute position. He determined, on a preliminary motion to dismiss brought by CBC and without the benefit of any arguments on the merits of the issues before him, that every facet of the decision making process and the effect of that decision on CBC’s programming activities, including the consequences which resulted in the cuts which affected CBEF Windsor, were all subject to a shared jurisdiction between the CRTC and the Commissioner. The Judge made no findings of fact with regard to these questions. He did not address the various components of the activities at issue, i.e. the decision to make cuts, the cuts themselves, and the consequences which these cuts had on CBEF Windsor. He simply took the view that there was concurrent jurisdiction over all aspects of the decision making process and he made no attempt to examine the activities at issue so as to determine which were programming activities and which, if any, were not. Had he done so, he would have had to define what programming was and from there determine which of the activities under scrutiny were truly programming activities. Consequently, we do not have the benefit of his findings nor do we have the benefit of his views on these matters. There was evidence before the Judge but, as it turned out, he never dealt with that evidence.

[79]           As I indicated earlier, the Judge’s view was that the whole of the complaint made by Dr. Amellal and the Comité fell within the jurisdiction of both the Commissioner and the CRTC. In my view, that cannot be. I believe that I am on safe grounds in so saying because the Commissioner himself recognizes that he does not have jurisdiction over what are truly programming activities. The question therefore is whether all of CBC’s activities at issue in this case are programming activities and, if so, do they necessarily fall within the CRTC’s exclusive jurisdiction. If any of these activities were not programming activities, did they then fall within the Commissioner’s realm?

[80]           Consequently, were we to accept to determine the question of jurisdiction at issue in this appeal, it would be left to us to review the evidence and make the factual findings which must be made in order to determine the legal issues. This would have to be done without the benefit of the Judge’s view on the questions which I have raised. In the circumstances of this case, I am of the opinion that it would be very unwise for us to proceed in such a way.

VI.             Conclusion

[81]           For these reasons, I would allow CBC’s appeal, I would set aside the Federal Court’s decision of September 8, 2014 and rendering the judgment which ought to have been rendered, I would dismiss the application brought by the Commissioner and Dr. Amellal pursuant to section 77 of the OLA. In the circumstances, I would make no order as to costs.

"M Nadon"

“I agree.

A.F. Scott”

“I agree.

Richard Boivin”

APPENDIX A

Broadcasting Act, S.C. 1991, c. 11

APPENDIX B

Official Languages Act (R.S.C., 1985, c. 31 (4th Supp.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

Docket:

A-421-14

(APPEAL FROM A JUDGMENT OF THE HONOURABLE MR. JUSTICE MARTINEAU DATED SEPTEMBER 8, 2014, DOCKET NUMBER T-1288-10)

STYLE OF CAUSE:	CBC/RADIO-CANADA v. THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA AND DR. KARIM AMELLAL
PLACE OF HEARING:		Ottawa, Ontario
DATE OF HEARING:		April 14 and 15, 2015
REASONS FOR JUDGMENT BY:		NADON J.A.
CONCURRED IN BY:		SCOTT J.A. BOIVIN J.A.
DATED:		november 12, 2015

APPEARANCES:

Guy Pratte Nadia Effendi	For The Appellant
Pascale Giguère Kevin Shaar	For The Respondent the commissioner of official languages of canada
Sean McGee Marie-Pierre T. Pilon	For The Respondent dr. karim amellal

SOLICITORS OF RECORD:

BORDEN LADNER GERVAIS s.r.l. Toronto, Ontario	For The Appellant
Office of the Commissioner of Official Languages in Canada Gatineau, QC	For The Respondent the commissioner of official langues of canada
Nelligan O'Brien Payne s.r.l. Ottawa, Ontario	For The Respondent dr. karim amellal