BETWEEN:
CANADIAN ASSOCIATION OF BROADCASTERS (The Plaintiff Association), GROUPE TVA INC., CTV TELEVISION INC., THE SPORTS NETWORK INC., 2953285 CANADA INC. (o.b.a. Discovery Channel Canada), LE RÉSEAU DES SPORTS (RDS) INC., THE COMEDY NETWORK INC., 1163031 ONTARIO INC. (o.b.a. Outdoor Life Network), GLOBAL COMMUNICATIONS LIMITED, GLOBAL TELEVISION NETWORK QUEBEC LIMITED PARTNERSHIP, PRIME TV, GENERAL PARTNERSHIP, CHUM LIMITED, CHUM OTTAWA INC., CHUM TELEVISION VANCOUVER INC. and PULSE24 GENERAL PARTNERSHIP (The Corporate Plaintiffs)
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-276-04
BETWEEN:
VIDÉOTRON LTÉE, VIDÉOTRON (RÉGIONAL) LTÉE, and CF CABLE TV INC.
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
(Delivered from the Bench at Ottawa, Ontario
on November 18, 2005)
HUGESSEN J.
[1] The plaintiffs, by their action, have attacked the validity of the Part II fees imposed under the Broadcasting Act and Broadcasting Licence Fee Regulations.
[2] The action is almost two years old now and those fees have been paid by them, I am told, since the year 2001, although under protest for at least the last year or so.
[3] Their motion, which they now bring, seeks to have me order that the Part II fees which will fall due for the current year on November 30, less than a fortnight's time, be paid into
Court and preserved in that way so that their right of recovery, if they have one, may be exercised.
[4] In their action they already seek apart from a declaration of the invalidity of the applicable regulations, a declaration that they are entitled to repayment of the sums already paid.
[5] There is a technical objection brought by the Crown to the power of the Court to make the order requested. In view of the conclusion that I have come to, I am going to assume that that power exists.
[6] It is common ground that the proper test to apply, in making an order of this sort, is the classic three part test which was laid down by the Supreme Court of Canada first of all in Manitoba (A.G.) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 and then some years later repeated in RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311.
[7] It is also I think common ground that the first part of that test namely that the plaintiffs have raised a serious issue, is easily met and is met in this case. Indeed, in an earlier decision in this case I found that some of the Crown's grounds of defence were not very strong and I made an Order in effect deciding that one defence had to be decided on a very narrow ground.
[8] That leaves the other two branches of the test namely irreparable harm in the balance of convenience. Because the defendant is the Crown, and is therefore a public body, the public's interest is a very important and frequently overriding consideration in the test of the balance of convenience.
[9] Over against that is the plaintiffs' contention that they may stand to lose monies already paid and indeed that they might stand to lose the monies which they are obliged, by law, to pay on the 30th of November of this year.
[10] That brings me to the irreparable harm aspect of the case. Will it amount to an irreparable harm for the plaintiffs if they pay these monies to the Crown when they are due?
[11] The plaintiffs do not say that the monies will disappear if they are paid to the Crown. Indeed they cannot say so. The Crown is certainly a worthy debtor and will pay its debts as required.
[12] What they say instead is that there is uncertainty has to their right to recover back fees or taxes which have been paid pursuant to an illegal statute or regulation. There may indeed be such uncertainty and I make no finding as to whether or not the plaintiffs do have the right to recover back those monies.
[13] What is absolutely clear to me however, and fatal to the plaintiffs' motion, is that if the plaintiffs cannot recover the fees they have already paid and the fees that they will pay at the end of this month, that will be because the law says so. It will be because the Court decides at the conclusion of their action that the prayer for relief in which they seek an order for the repayment of the sums paid cannot be granted by the Court. That will be because the Court finds that the law is such that money paid to the Crown under an invalid provision cannot be recovered back.
[14] I again make no comment as to whether or not the Court will make such a finding.
[15] I note that in at least some cases the Court, and I am talking of the Supreme Court of Canada, has ordered that fees paid under protest will be paid back but there is also law to the effect that taxes paid under an invalid statute may not be recovered and that is an issue in this case. It is not an issue which can or should be decided on a preliminary motion such at this. However the issue plays out it will not result in irreparable harm to the plaintiffs whether they win or lose. Even if I were to order that the sums be paid into Court they could still not be paid out without the Court making an Order based on a finding that it would be improper in the circumstances for the Crown to retain the money. That itself is one of the very issues raised by the action.
[16] The two motions will be dismissed.
Judge
Ottawa, Ontario
November 18, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2277-03
STYLE OF CAUSE: CANADIAN ASSOCIATION OF BROADCASTERS et al v. HER MAJESTY THE QUEEN
- AND -
T-276-04
VIDÉOTRON LTÉE et al v. HER MAJESTY THE QUEEN
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: NOVEMBER 18, 2005
REASONS FOR ORDER: HUGESSEN J.
APPEARANCES:
THOMAS HEINTZMAN.
HOWARD FOHR FOR PLAINTIFFS
(Canadian Association of Broadcasters et al, in T-2277-03)
DANIEL URBAS
CARL J. SOUQUET FOR PLAINTIFFS
(Vidéotron Ltée et al, in
T-276-04)
F.B. (RICK) WOYIWADA FOR DEFENDANT
(in T-2277-03)
FRANCISCO COUTO FOR DEFENDANT
(in T-276-04)
SOLICITORS OF RECORD:
McCARTHY TÉTRAULT
OTTAWA, ONTARIO FOR PLAINTIFFS
(Canadian Association of Broadcasters et al, in T-2277-03)
BORDEN LADNER GERVAIS srl/LLP
MONTREAL, QUEBEC FOR PLAINTIFFS
(Vidéotron Ltée et al, in
T-276-04)
JOHN H. SIMS, Q.C.
DEPUTY ATTORNEY GENERAL OF CANADA
OTTAWA, ONTARIO FOR DEFENDANT
(in T-2277-03)
JOHN H. SIMS, Q.C.
DEPUTY ATTORNEY GENERAL OF CANADA
MONTREAL, QUEBEC FOR DEFENDANT
(in T-276-04)