Date: 20020321
Docket: T-2256-01
Neutral citation: 2002 FCT 310
Montréal, Quebec, March 21, 2002
Before: Richard Morneau, prothonotary
BETWEEN:
ASTRAL MÉDIA INC.
Plaintiff
and
THE COMPETITION COMMISSIONER
and
THE CANADIAN RADIO-TELEVISION AND
TELECOMMUNICATIONS COMMISSION
and
THE ATTORNEY GENERAL OF CANADA
and
TÉLÉMÉDIA RADIO INC.
Defendants
Motion by the Canadian Association of Broadcasters for leave to intervene.
[Rule 109 of Federal Court Rules (1998)]
REASONS FOR ORDER AND ORDER
[1] For the following reasons I intend to dismiss with costs this motion by the Canadian Association of Broadcasters ("the C.A.B.") made pursuant to Rules 109 and 369 of the Federal Court Rules (1998) ("the Rules").
[2] The general background to this motion to intervene appears to be the following.
[3] Under an agreement to purchase shares made between Télémédia Radio Inc. ("Télémédia") and Astral Média Inc. ("Astral") on May 16, 2001 (hereinafter "the proposed transaction"), Astral proposed to acquire control of Radiomédia and all the broadcasting enterprises of Télémédia and its affiliate Télémédia Radio Atlantic Inc., which are located in the province of Quebec and in the Maritimes respectively.
[4] The Competition Commissioner ("the Commissioner") appointed pursuant to the Competition Act, R.S.C. 1985, c. C-34, initiated an inquiry into the proposed transaction pursuant to s. 10(1)(b) of that Act.
[5] The Commissioner argued inter alia that the said transaction would probably have the effect of impeding or appreciably reducing competition in the francophone radio advertising markets located in the Ottawa-Hull, Montréal, Sherbrooke, Trois-Rivières, Québec and Chicoutimi-Jonquière regions.
[6] Astral and Télémédia applied to this Court, by separate applications but to the same effect, asking it to rule that the Competition Act did not apply to the proposed transaction and that the Commissioner therefore lacked jurisdiction over the proposed transaction.
[7] According to the previous decisions of this Court, Rule 109 imposes on a person wishing to intervene in a case the burden of showing that the following three tests have been met:
(a) the applicant for intervention must have an interest in the outcome of the proceeding;
(b) the outcome of the proceeding will seriously affect the applicant's rights;
(c) as intervener the applicant will bring a different perspective to the case.
Abbott v. Canada, [2000] 3 F.C. 482 (T.D.).
[8] Rule 109 reads as follows:
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109. (1) The Court may, on motion, grant leave to any person to intervene in a proceeding.
(2) Notice of a motion under subsection (1) shall
(a) set out the full name and address of the proposed intervener and of any solicitor acting for the proposed intervener; and
(b) describe how the proposed intervener wishes to participate in the proceeding and how that participation will assist the determination of a factual or legal issue related to the proceeding.
(3) In granting a motion under subsection (1), the Court shall give directions regarding
(a) the service of documents; and
(b) the role of the intervener, including costs, rights of appeal and any other matters relating to the procedure to be followed by the intervener. |
109. (1) La Cour peut, sur requête, autoriser toute personne à intervenir dans une instance.
(2) L'avis d'une requête présentée pour obtenir l'autorisation d'intervenir:
a) précise les nom et adresse de la personne qui désire intervenir et ceux de son avocat, le cas échéant;
b) explique de quelle manière la personne désire participer à l'instance et en quoi sa participation aidera à la prise d'une décision sur toute question de fait et de droit se rapportant à l'instance.
(3) La Cour assortit l'autorisation d'intervenir de directives concernant :
a) la signification de documents;
b) le rôle de l'intervenant, notamment en ce qui concerne les dépens, les droits d'appel et toute autre question relative à la procédure à suivre.
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[9] First, I am not satisfied that the outcome of the applications for judicial review at issue will seriously affect the C.A.B.'s rights.
[10] In the case at bar the C.A.B. argued that the decision to be rendered by this Court could have the effect of substantially reducing the predictability of policies and decisions by the government regarding Canadian broadcasters, and so compromise or appreciably threaten the security of the investments which must be made by Canadian broadcasters. I feel, as the Commissioner and the Attorney General of Canada pointed out, that this interest is of a purely "jurisprudential" nature, to use the expression adopted by Hugessen J. A. in Tioxyde Canada Inc. v. Canada (1994), 174 N.R. 212 (FCA). I am not satisfied that the case at bar will have a direct impact on the C.A.B.'s financial interests or property rights. Its only interest results from the fact that other transactions could possibly require approval by the Commissioner and the CRTC.
[11] Further, it appears to me that the C.A.B. has not discharged its burden of establishing that its intervention will assist in the making of a decision on any question of fact or law relating to the case at bar.
[12] As I see it, the C.A.B. is simply stating that it has expertise in the regulation of the broadcasting industry and has a new point of view, separate from that of the parties at issue, but it does not say in what way that expertise and point of view complement the arguments and facts put forward by the parties in the case at bar.
[13] In fact, it appeared from the cross-examination on affidavit of Mr. O'Farrel - affidavit submitted in support of the motion - that contrary to what he alleged in that affidavit, the C.A.B. could not call any special existing expertise regarding the questions this Court has to decide in the case at bar.
[14] Finally, it appeared that after requesting the C.A.B.'s intervention in the Federal Court proceeding to support its position, and being informed on January 21, 2002 of the C.A.B.'s decision to intervene, Astral never informed the Court, the Commissioner or the Attorney General of Canada of this at the proper time. Apparently, Astral kept these parties in complete ignorance of this intervention request, already decided on by the C.A.B., and accordingly negotiated with counsel for the other parties a schedule for an accelerated hearing that does not take this intervention into account. There is a problem of inequity and delay here which cannot be attributed to the C.A.B.
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Richard Morneau
prothonotary |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT OF CANADA TRIAL DIVISION
Date: 20020321
Docket: T-2256-01
Between:
ASTRAL MÉDIA INC. Plaintiff and THE COMPETITION COMMISSIONER and THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION and THE ATTORNEY GENERAL OF CANADA and TÉLÉMÉDIA RADIO INC. Defendants
REASONS FOR ORDER AND ORDER
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FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-2256-01
STYLE OF CAUSE: ASTRAL MÉDIA INC.
Plaintiff
and
THE COMPETITION COMMISSIONER
and
THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION
and
THE ATTORNEY GENERAL OF CANADA
and
TÉLÉMÉDIA RADIO INC.
Defendants
WRITTEN MOTION CONSIDERED IN MONTRÉAL WITHOUT APPEARANCE BY PARTIES
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATED: March 21, 2002
WRITTEN SUBMISSIONS:
Daniel O'Brien for the Canadian Association of Broadcasters
Jean-Christian Drolet
Carole Johnson for the defendants the Competition
Athena Debbie Afraim Commissioner and the Attorney General of Canada
Réal Forest for the defendants the Competition Commissioner and the Attorney General of Canada
SOLICITORS OF RECORD:
O'Brien, Attorneys for the Canadian Association of
Québec, Quebec Broadcasters
Morris Rosenberg for the defendants the Competition
Deputy Attorney General of Canada Commissioner and the Attorney General of Canada
Fasken, Martineau, DuMoulin for the defendants the Competition
Montréal, Quebec Commissioner and the Attorney General of Canada
Stikeman, Elliott for the plaintiff
Montréal, Quebec
John Keogh for the Canadian Radio-Television and
Hull, Quebec Telecommunications Commission
McCarthy, Tétrault for Télémédia Radio Inc.
Montréal, Quebec