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Canadian Radio-Television Commission (Appel- lant)
v.
Teleprompter Cable Communications Corp. (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and Cameron D.J.—Ottawa, November 24, 1972.
Broadcasting—Courts—Jurisdiction—Parties—Canadian Radio-Television Commission—Not a legal entity—"Federal board, commission or other tribunal'—Liability to action in own name—Declaratory relief—Right of Court to grant where relief obtainable in other court—Attorney General added as defendant—Broadcasting Act, R.S.C. 1970, c. B-11, s. 5(1).
Teleprompter Cable Communications Corp. operated a closed circuit cable TV system in Sault Ste. Marie, Ontario. It received signals by cable from Sault Ste. Marie, Michi- gan, and also originated programs in its studios, and dis tributed both by cable to its subscribers. In July 1972 the CRTC demanded that it cease operations on the ground that it was carrying on a broadcasting undertaking without a licence as required by the Broadcasting Act.
Held (affirming Pratte J.), a motion by the CRTC to strike out the statement of claim on the ground that it disclosed no cause of action or that the CRTC was not an entity in law must be dismissed. The Court has jurisdiction to grant the relief sought.
Although section 5(1) of the Broadcasting Act ; R.S.C. 1970, c. B-11, constituting the CRTC does not make the CRTC a legal entity it is clear from other provisions of the Act that its members are a "federal board, commission or other tribunal" within the definition in section 2 of the Federal Court Act and therefore subject to the jurisdiction of the Trial Division under section 18; and it is particularly appropriate to implead the members of the Board in their statutory name in a case involving their statutory authority.
The Court's power to grant declaratory relief is not ousted because the statute governing the matter provides a special procedure in another court in which the question involved might arise. Ealing London Borough Council v. Race Relations Bd. [1972] 2 W.L.R. 71, followed.
Held also, the Court has authority of its own motion under Rule 1716(2) to order that the Attorney General be added as a defendant, and this was a proper case for such an order.
APPEAL from the decision of Pratte J., unreported.
Douglas Carruthers, Q.C., and Barry Collins for appellant.
Gordon Henderson, Q.C., for respondent.
THURLOW J. (orally)—This appeal is from an order of the Trial Division, (Pratte J.), made on September 11, 1972, which directed that the Attorney General of Canada be added as a defendant to the action within 15 days and dismissed without costs the appellant's motion to strike out the statement of claim on the ground that it discloses no reasonable cause of action or on the ground that the appellant is not an entity in law against whom the action can be taken. The order in question recites the opinion of the learned judge of the Trial Division before whom the motion was made that:
(a) the defendant is a suable entity for the purposes of section 18 of the Federal Court Act; and that
(b) the Attorney General of Canada should be joined as a defendant; and that
(c) it is within the powers of this Court to make the declaratory order prayed for; and that
(d) the other questions raised by the defendant should be ruled upon by the Court after trial.
In so far as the appeal is from the direction that the Attorney General of Canada be joined Rule 1716(2) appears to me to be ample authority for the order and for the action of the Court in making the order of its own motion. I also think the case was a proper one in which to direct that the Attorney General of Canada be made a defendant.
With respect to the objection as to the status of the appellant as a legal entity section 5(1) of the Broadcasting Act, by which the appellant is constituted, provides that:
5. (1) There shall be a commission to be known as the Canadian Radio-Television Commission, consisting of five full-time members and ten part-time members to be appoint ed by the Governor in Council.
An examination of the other provisions of Part II of that Act to my mind makes it clear that the members of the commission so con stituted are a body or are persons "having juris diction or powers etc." falling within the defini tion of "federal board, commission or other
tribunal" in section 2 of the Federal Court Act and that the Trial Division of this Court has in respect of such body or persons the jurisdiction conferred by section 18 of that Act. The rest of what is involved in the appellant's submission with respect to the defendant's status is but a matter of the rules of the Court for the exercise of that jurisdictions `s I see it, the appellant is not a body corporate or other entity having a legal personality recognized as distinct from that of its members and the respondent in fram ing its proceeding might have joined as defend ants the members of the commission by their personal names or might have joined them all by the name of their office, i.e., by naming as defendants, "the members of the Canadian Radio-Television Commission". Instead of adopting either of these courses the respondent named the commission by its statutory name which appears to me to be a compendious refer ence to what the commission consists of, that is to say, its members. Save in the cases provided for by Rules 1708 to 1713 I know of no rule of the Court which authorizes the naming of a group of defendants by the name of the group but on the other hand no rule of the Court of which I am aware prohibits such a practice and
it seems to me that the praçtice of naming the group by its statutory name is p.artjéular y_con- venient and_appropriate in a case such as this where the principal object, of the proceeding is to obtain a determination of the scope of the authority conferred by statute on that group of persons. In my opinion therefore the appellant's objection is technical and without merit and should be rejected. Moreover, if the objection were sound it would follow that there is no appellant before the Court and that this appeal itself is a nullity.
Turning to the second branch of the case, a preliminary point should be mentioned as to whether the power of a superior court to grant declaratory relief is necessarily ousted where the statute governing the particular matter pro vides a special procedure in another court in which the question involved might arise. This question was dealt with by the House of Lords in Ealing London Borough Council v. Race Relations Board [1972] 2 W.L.R. 71. In that
case it was held that the mere fact that a statute contained provisions governing the procedure for enforcement of an Act did not oust the jurisdiction of the superior court to grant declaratory relief. See per Viscount Dilhorne at page 79. See also per Lord Donovan at pages 75 and 76.
I turn now to the submission of no reasonable cause of action. The principal relief claimed by the respondent consists of:
(a) A declaration that it is not a broadcasting undertaking within the terms of the Broadcasting Act, and that it is not required to obtain a licence from the Commission in order to carry on its present operations in Sault Ste. Marie, Ontario.
(b) An injunction restraining the Commission from pro ceeding against the plaintiff under the Broadcasting Act for the carrying on of its undertaking without a licence from the Commission.
and the basis for claiming such relief is set out as follows in paragraphs 6 to 12 of the state ment of claim:
6. The plaintiff operates a closed circuit cable T.V. system in Sault Ste. Marie, Ontario. In the plaintiff's system signals are received by cable from Sault Ste. Marie, Michi- gan, and are distributed by cable to subscribers of the plaintiff. Some programs are originated in the studios of the plaintiff at 143 Gore Street, Sault Ste. Marie, Ontario, and such programs are also distributed by cable to subscribers of the plaintiff.
7. The plaintiff does not own or use any equipment for transmission, emission, or reception of signs, signals, writ ing, images, sound or intelligence of any nature by means of electromagnetic waves of frequencies lower than 3,000 gigacycles per second propagated in space without artificial guides.
8. The plaintiff does not engage in any transmission, emission, or reception of signs, signals, writing, images, sound or intelligence of any nature by means of electromag netic waves of frequencies lower than 3,000 gi g acycles per second propagated in space without artificial guides.
9. By reason of the facts stated in paragraphs 7 and 8 hereof, the plaintiff does not engage in radio communication within the terms of the Broadcasting Act. As the plaintiff is not involved with radio communication, it is not a broad casting undertaking within the terms of the Broadcasting Act.
10. On July 24, 1972, the plaintiff received a letter dated July 20, 1972, and signed by Monique Coupal, Secretary, Canadian Radio-Television Commission. This letter reads as follows:
100 Metcalfe Street, OTTAWA, Ontario,
K1A 0N2.
REGISTERED July 20, 1972.
Continental Cablevision Incorporated,
308 Queen Street East,
SAULT STE. MARIE, Ontario.
Gentlemen:
Since April 1, 1968, your company has carried on a
broadcasting undertaking in Sault Ste. Marie, Ont. without a
valid and subsisting licence as is required under the Broad
casting Act.
It is our opinion that we have given you ample time to comply with the said Act.
To date no steps have been taken by you in this respect.
Therefore, we have no other alternative but to demand that you cease this illegal operation within 30 days of the date hereof.
Yours truly, Monique Coupai,
Secretary.
11. The plaintiff is not a broadcasting undertaking under the terms of the Broadcasting Act and, therefore, does not require a licence from the Commission to carry on its operations.
12. The letter dated July 20, 1972, from Monique Coupal, constitutes a threat of proceedings by the Commis sion against the plaintiff. Such a threat prejudices negotia tions underway for the sale of the plaintiff's operation in Sault Ste. Marie, Ontario, and makes it impossible for the plaintiff to plan its future strategy with respect to such negotiations....
I have some doubt that these allegations are sufficient to show that the operation as a whole, of which the respondent's undertaking is but a part, is not a broadcasting operation within the meaning of the statute and I also think that a situation such as this, where all that can be considered is what has happened in the past and, perhaps, is presently continuing, will rarely form a satisfactory subject-matter for a declara tion the real object of which is not to obtain a declaration of rights flowing from what has happened—which could as conveniently be left to such summary conviction proceedings as might be brought under the Act—but to obtain a ruling for the future on the applicability of the Broadcasting Act to an undertaking the charac ter of which will not necessarily remain the same. One may also doubt that a Court would grant an injunction as claimed on the basis of the facts that have been pleaded.
But, in my view, the problem raised by the appellant's motion was not whether on the facts as alleged an injunction as claimed should be granted but whether on any conceivable inter pretation of those facts a claim for injunctive or prohibitory relief within the scope of the claim therefor could be sustained. Similarly the prob lem before the Court with respect to the claimed declaration was not whether on such facts the declaration asked should be made but whether on the facts as alleged a declaration if made in the exercise of the Court's discretion at trial would be sustainable.
I agree with the view of the learned trial judge that the Court has jurisdiction to make a declaration of the kind sought, if in the exercise of its discretion it should think fit to do so after a hearing on the merits, and I also think the Court has jurisdiction to grant injunctive or prohibitory relief against the appellant (or appellants) in an appropriate situation.
Further, on the facts as pleaded, and having regard to the penalties which the respondent may be incurring if it is wrong in operating without a licence, I do not regard it as incon ceivable that the Court in the exercise of a judicial discretion might grant a declaration of the sort claimed and might further, if persuaded that the appellant is without authority over the respondent's undertaking, consider it just and convenient to restrain or prohibit the appellant (or appellants) from exercising or threatening the exercise of a jurisdiction over the respond ent which it or they do not possess.
I am therefore of the opinion that it would have been wrong to abort the proceedings at this stage by striking out the statement of claim and that the learned trial judge properly exer cised his discretion under the rules in deciding to dismiss the motion.
I would dismiss the appeal with costs.
* * *
Jackett C.J. and Cameron D.J. concurred.
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