Judgments

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A-647-75
In re Canadian Radio-Television Commission and in re London Cable TV Limited
Court of Appeal, Jackett C.J., Pratte and Heald JJ.—Ottawa, April 7, 8 and 9, 1976.
Judicial review and appeal—Broadcasting—Decision of CRTC permitting cablevision company to amend licence— Applicants, interveners at public hearing, claiming they were not permitted to see certain documents or to cross-examine witnesses at hearing—Broadcasting Act, R.S.C. 1970, c. B-11, ss. 19, 26.
The CRTC approved an amendment to the licence of London Cable TV Limited to, inter alia, permit it to charge $6 per month for "basic service". Applicants, who intervened at the public hearing in connection with the proposed amendment, claimed that they were not permitted to see certain documents before or during the hearing and were refused permission to cross-examine witnesses at the hearing.
Held, setting aside the decision, the matter is referred back for reconsideration after the requirements of section 19 of the Broadcasting Act have been complied with. Refusal to permit cross-examination did not result in a failure to permit appli cants to exercise their rights as members of the "public" under the Act. Nor was the withholding of certain "staff-documents" improper. As to the withholding of the financial statements and future projections put before the Commission, at its request, by the licensee, it is unnecessary to decide whether such withhold ing was a breach of natural justice or of the Commission's own procedural rules. For, by virtue of section 19(2), it was a condition precedent to the valid making of the amendment that a public hearing be held. What the Act contemplates is a meaningful hearing calculated to aid the Commission in reach ing a conclusion which reflects a consideration of the public interest as well as the private interest of the licensee. There was not available to applicants as members of the public a reason able opportunity to know what was involved in the application. When the Commission refused, not only to make the financial statements and projections available with its notice of hearing but when asked by members of the public as well, it failed to take a step which was, here, a condition precedent to the holding of a section 19 public hearing. As such a hearing was a condition precedent to the power to make the order in question, it must be set aside.
Attorney General of Manitoba v. National Energy Board [1974] 2 F.C. 502; In re Capital Cities Communications Inc. [1975] F.C. 18 and M.N.R. v. Wrights' Canadian Ropes, Limited [1947] A.C. 109, considered.
JUDICIAL review and appeal. COUNSEL:
A. J. Roman for applicant.
C. C. Johnston for respondent.
R. J. Wright, Q.C., for intervener.
SOLICITORS:
Andrew J. Roman, Ottawa, for applicant.
C. C. Johnston, General Counsel, CRTC, for respondent.
Lang, Michener, Cranston, Farquharson & Wright, Toronto, for intervener.
The following are the reasons for judgment delivered orally in English by
JAÇKETT C.J.: This is an appeal under section 26 of the Broadcasting Act and a section 28 application, joined together in a single proceeding under Rule 1314, in respect of a decision of the Canadian Radio-Television Commission' (75-513) dated October 28, 1975, whereby an application by London Cable TV Limited 2 to amend its cable television licence inter alia so as to permit it to charge $6.00 per month for "basic service" was approved.'
The applicants were intervenants in a "public hearing", which was held as a condition precedent to granting such an amendment as required by section 19(2) of the Broadcasting Act. 4 They attacked the decision of the Commission because
I Now replaced by the Canadian Radio-Television and Tele communications Commission. See Bill C-5 of 1975-76 Session, proclaimed April 1, 1976.
2 Now amalgamated with other companies to form Canadian Cablesystems (Ontario) Limited.
3 The power of the Commission to grant cable television licences was established, as far as this Court is concerned, in an application by Capital Cities Communications Inc. [1975] F.C. 18. No question has been raised in this matter as to the Commission's jurisdiction to insert a condition in such a licence concerning service charges and that question does not, there fore, have to be decided for the purpose of this proceeding.
4 Section 19(1) and (2) read as follows:
19. (1) A public hearing shall be held by the Commission
(a) in connection with the issue of a broadcasting licence, other than a licence to carry on a temporary network operation; or
(a) they were not permitted to see certain docu ments either before or during the hearing, and
(b) the Commission refused to permit cross- examination of witnesses at the hearing.
In so far as the cross-examination is concerned, it was not, in my opinion, demonstrated that such refusal resulted, in this case, in a failure to permit the applicants to exercise their rights as members of the "public" under the statute. I am of the same view with reference to the withholding of certain documents that have been referred to as "staff-documents".
That leaves for consideration the effect on the validity of the order attacked of the withholding from the applicants of an audited financial state ment of the licensee and projections as to future earnings at the pre-existing rate ($5.00 per month) and at the proposed rate ($6.00 per month), which had, at the request of the Commission, been put before the Commission in support of the applica tion by the licensee before the Commission pro ceeded with the "public hearing".
In so far as these documents are concerned, an attack was made on the granting of the amend ment on the basis that their having been withheld was a breach of the fundamental rule of natural justice that prima facie no decision or order is to be made against a person by a statutory authority without affording him a reasonable opportunity of answering the case against him. The applicants, as subscribers, or as the representative of subscribers, to the cable system here in question, attempted to bring themselves within that rule. I do not find it necessary to express any opinion as to whether the
(b) where the Commission or the Executive Committee has under consideration the revocation or suspension of a broadcasting licence.
(2) A public hearing shall be held by the Commission, if the Executive Committee is satisfied that it would be in the public interest to hold such a hearing, in connection with
(a) the amendment of a broadcasting licence;
(b) the issue of a licence to carry on a temporary network operation; or
(c) a complaint by a person with respect to any matter within the powers of the Commission.
While a public hearing is clearly mandatory in every applica tion to which section 19(1) applies, in my view, a public hearing is also mandatory in every case to which section 19(2) applies if the Executive Committee decides that "it would be in the public interest to hold such a hearing."
applicants can succeed in this proceeding on the basis of that rule because I have come to a conclu sion in their favour for another reason that I am about to express. For the same reason, I do not find it necessary to come to any conclusion as to whether there was, by virtue of the withholding of such documents, such a failure to comply with the Commission's own rules of procedure as to entitle the applicants to an invalidation order.
I am of opinion that it was, by virtue of section 19(2), a condition precedent to the valid making of the amending order attacked by this application that a "public" hearing have been held in connec tion with the proposed amending order. In my view, at the very minimum, what the statute required, by requiring a "public hearing", was a hearing at which, subject to the procedural rules of the Commission and the inherent jurisdiction of the Commission to control its own proceedings, every member of the public would have a status "to bring before" the Commission anything rele vant to the subject matter of the hearing so as to ensure that, to the extent possible, everything that might appropriately be taken into consideration would be before the Commission, or its Executive Committee, when the application for the amend ment was dealt with. 5 To be such a public hearing, it would, in my view, have had to be arranged in such a way as to provide members of the public with a reasonable opportunity to know the subject matter of the hearing, and what it involved from the point of view of the public, in sufficient time to decide whether or not to exercise their statutory
5 Compare Attorney General of Manitoba v. National Energy Board [1974] 2 F.C. 502, per Cattanach J. at pages 518-19.
I express no view as to whether other grounds exist for invalidating the order attacked. For example, I express no opinion as to whether what was contemplated was a hearing during which a record would be made on the basis of which the matter would have to be determined (in which case, on the reasoning in M.N.R. v. Wrights' Canadian Ropes, Lim ited [1947] A.C. 109, this proceeding would probably suc ceed) and I express no opinion as to whether what was contemplated was a hearing at which every intervenant would be entitled to the rights implied by the rules of natural justice in favour of parties against whom it is proposed to make or refuse an order (in which case also the proceeding would probably succeed).
right of presentation and to prepare themselves for the task of presentation if they decided to make a presentation. In other words, what the statute contemplates, in my view, is a meaningful hearing that would be calculated to aid the Commission, or its Executive Committee, to reach a conclusion that reflects a consideration of the public interest as well as a consideration of the private interest of the licensee; it does not contemplate a public meet ing at which members of the public are merely given an opportunity to "blow off steam".
In this case it seems clear to me, from a study of the "Case" and from argument in this Court, that there was not made available to the applicants as members of the public a reasonable opportunity to know what was involved in the application. 6 The refusal to provide them with the financial state ments and projections in question—and the failure to provide the fundamental basic facts relevant to the proposed increase in rates by some other meth- od—left members of the public, including the applicants, in a position where they knew that the licensee was asking leave to increase its charges to the public but where they had no means of form ing a considered opinion as to whether such increase was justified by the circumstances and had no means, if they concluded that it was not, of preparing themselves to put forward their position at the hearing.
When the Commission not only failed to' make such basic information available with its notice to the public of the statutory "public hearing" but refused, when asked by interested members of the public, to supply such basic information, in my view, it failed to take a step that, in the circum stances of this case, was a condition precedent to the holding of a section 19 "public hearing"; and, as such a hearing was a condition precedent to the power of the Commission or Executive Committee to make the order under attack, I am of opinion that it must be set aside. 7
6 What pre-hearing information, if any, is necessary to make a "public hearing" a meaningful hearing will obviously vary according to the circumstances.
If, of course, such information had not been supplied in a preliminary way to the Commission by the licensee, the Com mission could not have supplied it to the public. As it seems to me, however, some such information has to be put before the Commission before the Commission has a prima facie case to consider with reference to an increase in rates.
I propose that the decision made by the Canadi- an Radio-Television Commission (or its Executive Committee) on October 28, 1975 (75-513), per mitting London Cable TV Limited to amend its cable television licence be set aside and that the matter be referred back for reconsideration after the requirements of section 19 of the Broadcasting Act have been complied with.
* * * PRATE J. concurred.
* * * HEALD J. concurred.
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