Date: 20040826
Docket: 04-A-36
Citation: 2004 FCA 279
Present: RICHARD C.J.
LÉTOURNEAU J.A.
NADONJ.A.
BETWEEN:
GENEX COMMUNICATIONS INC.
Applicant
and
THE CANADIAN RADIO-TELEVISION AND
TELECOMMUNICATIONS COMMISSION (CRTC)
and
ATTORNEY GENERAL OF CANADA
Respondents
and
ATTORNEY GENERAL OF QUEBEC
Mis-en-cause
Hearing held at Ottawa, Ontario, on August 26, 2004.
Order rendered at Ottawa, Ontario, on August 26, 2004.
ORDER AND REASONS FOR ORDER BY THE COURT
Date: 20040826
Docket: 04-A-36
Citation: 2004 FCA 279
Present: RICHARD C.J.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
GENEX COMMUNICATIONS INC.
Applicant
and
THE CANADIAN RADIO-TELEVISION AND
TELECOMMUNICATIONS COMMISSION (CRTC)
and
ATTORNEY GENERAL OF CANADA
Respondents
and
ATTORNEY GENERAL OF QUEBEC
Mis-en-cause
ORDER AND REASONS FOR ORDER
[1] The application for leave to appeal CRTC decision 2004-271 by the Canadian Radio-Television and Telecommunications Commission (CRTC) on July 13, 2004, is allowed on the questions raised in the motion for leave to appeal, except for question No. 11, which disputes the findings of fact made by the CRTC. As an appeal from a CRTC decision pursuant to subsection 31(2) of the Broadcasting Act, S.C. 1991 (the Act) is limited to questions of law and jurisdiction, this Court does not have jurisdiction to review the findings of fact made by the CRTC.
[2] The application to stay the CRTC decision is allowed and the CRTC is directed to stay enforcement of the call for applications for new broadcasting licences in Québec, on frequency 98.1 MHz, until the final judgment on the merits by this Court in the case at bar.
[3] In view of the breadth of the Federal Court's jurisdiction and its general administrative jurisdiction over federal administrative tribunals (Canada (HRC) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, paragraphs 35 and 36), this Court has jurisdiction to grant interim relief so that, in exercising its function of reviewing administrative tribunals and agencies, a party's appeal will not be made illusory.
[4] The parties to the case at bar agreed that such measures should be taken, and admitted that the test in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, have been met. Consequently, the licence granted the applicant by CRTC decision CRTC 2002-189 is deemed to remain in effect, subject to all its requirements and conditions, including the observance of all regulatory provisions imposed pursuant to the Act and the applicable Regulations, until final judgment is rendered on the merits by this Court in the case at bar.
[5] It is further ordered that the Attorney General of Quebec be struck from the case as mis-en-cause and that the style of cause be varied accordingly.
[6] The application for leave to appeal the CRTC decision and that regarding the stay and interim relief are allowed, with costs in the cause. Finally, the parties agreed that the proceeding should go forward in accordance with the schedule attached hereto as an appendix.
|
|
"J. Richard" |
|
|
Chief Justice |
|
|
"Gilles Létourneau" |
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|
J.A. |
|
|
"Marc Nadon" |
|
|
J.A. |
Certified true translation
Suzanne M. Gauthier, C Tr, LLL
APPENDIX
SCHEDULE
| September 13, 2004: |
Service and filing in the record of the Court, pursuant to sections 337 to 339 of the Federal Court Rules (hereinafter the Rules), of the notice of appeal by Genex Communications Inc., setting out the 12 questions summarized as follows in its motion for appeal by leave: 1. That the decision (271) be declared null and void as not being consistent with paragraphs 1(b) and 2(b) of the Canadian Charter of Rights and Freedoms, which justifies the appellant being granted an appropriate and just remedy pursuant to subsection 24(1) of the Charter; 2. That the Broadcasting Act does not give the CRTC any power to legislate on the content of broadcasting nor to act as a censor of the content of radio programs; 3. That accordingly section 3, and in particular paragraph (b), of the Radio Regulations, 1986, the code of ethics imposed by CRTC decision 2002-189 and CRTC decision 2004-271 of July 13, 2004, are null and void; 4. Alternatively, that section 3 of the Radio Regulations, 1986 (SOR/86-982) is unconstitutional on account of its inconsistency with paragraph 2(b) of the Charter and with subsections 92(13) and 92(16) of the Constitution Act, 1867; 5. Alternatively, that paragraphs 3(1)(g) and 10(1)(c) and (k) of the Broadcasting Act are unconstitutional by reason of their inconsistency with paragraph 2(b) of the Charter; 6. That the CRTC infringed the terms of subsection 5(2) of the Broadcasting Act by not acting in a flexible manner in monitoring CHOI-FM; 7. That the CRTC made decision 271 without exercising its jurisdiction pursuant to paragraphs 3(1)(d), 5(2)(g) and 9(1)(d); 8. That the CRTC declined or failed to exercise its jurisdiction by orders pursuant to section 12 of the Act; 9. That the CRTC declined or failed to exercise its jurisdiction by penal proceeding, pursuant to sections 32 and 33 of the Act; 10. That the CRTC interpreted paragraph 3(b) of the Radio Regulations, 1986 dealing with the prohibition of broadcasting abusive comment in an erroneous and absurd way; 11. That the CRTC drew wrongful and arbitrary conclusions regarding the appellant's actions and responsibility; 12. That the CRTC clearly infringed the rules of natural justice, the rules of procedural fairness and the CRTC Rules of Procedure, before, during and after the public hearings regarding renewal of the CHOI-FM licence;
|
| September 14, 2004: |
Service and filing in the record of the Court pursuant to section 341 of the Rules of the notice of appearance of the respondents and mis-en-cause;
|
| September 14, 2004: |
Service by the appellant on the Attorneys General of the provinces and territories of notice of constitutional questions pursuant to section 57 of the Federal Courts Act;
|
| September 17, 2004: |
Deadline for applications to intervene;
|
| On or before October 12, 2004: |
Service and filing in the record, if applicable, of the respondents' evidence dealing with requirements set out in the Canadian Charter of Rights and Freedoms;
|
| On or before November 5, 2004: |
If required, filing by the applicant of its evidence in reply to that filed by the respondents;
|
| On or before November 19, 2004: |
Cross-examination(s), if necessary, of counsel for the parties in connection with the evidence filed in the record;
|
| On or before December 3, 2004: |
Filing of the parties' agreement on the content of the appeal book pursuant to section 343 of the Rules;
|
| On or before December 17, 2004: |
Filing of the appeal book or submission pursuant to section 343 of the motion to determine the content of the appeal book, if applicable;
|
| On or before January 31, 2005: |
Filing of the appellant's memorandum pursuant to section 346 of the Rules;
|
| On or before March 3, 2005: |
Filing of the respondents' memorandums pursuant to section 346 of the Rules;
|
| On or before March 4, 2005: |
Filing by the appellant of the requisition for a hearing pursuant to section 347 of the Rules.
|
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: 04-A-36
Motions for leave to appeal and to stay enforcement
STYLE OF CAUSE: GENEX COMMUNICATIONS INC.
AND
THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION (CRTC)
AND
ATTORNEY GENERAL OF CANADA
AND
ATTORNEY GENERAL OF QUEBEC - Mis-en-cause
PLACE OF HEARING: Ottawa
DATE OF HEARING: August 26, 2004
ORDER AND REASONS Richard C.J.
FOR ORDER BY THE COURT: Létourneau J.A.
Nadon J.A.
APPEARANCES:
|
Guy Bertrand |
FOR THE APPLICANT |
|
Guy Pratte Yvan Houle
Rosemarie Millar Alexander Press |
FOR THE CRTC
FOR THE ATTORNEY GENERAL OF CANADA
|
SOLICITORS OF RECORD:
|
|
FOR THE APPLICANT |
|
Borden, Ladner, Gervais s.r.l. - Montréal, Quebec |
FOR THE CRTC |
Morris Rosenberg, Deputy Attorney General of Canada
Ottawa, Ontario