Judgments

Decision Information

Decision Content

T-2365-77
Stephen Chitty, Dorothia Atwater, Wayne Kerr, Sharron Lang, David Coulson, Ulla Sorrenson, Peter Hay, and the Canadian Broadcasting League (Plaintiffs)
v.
Canadian Radio-television and Telecommunica tions Commission, Western Cable Limited and M.S.A. Cablevision Limited (Defendants)
Trial Division, Collier J.—Toronto, May 22; Van- couver, August 15, 1979.
Jurisdiction — Prerogative writs — Application for declaratory relief — Telecommunications — Cablevision — In application before the CRTC for approval of transfer of control of licensee, preliminary motion, made by plaintiffs objecting to jurisdiction, dismissed when application for approval denied — Application made for declarations that: (a) CRTC is without jurisdiction to hear and decide applications for transfer of control, (b) if the CRTC did have jurisdiction, the matter had to be dealt with as an application for revoca tion of a licence, coupled with an application for a new licence, (c) notwithstanding denial of application for transfer of con trol, application for revocation is still before CRTC and CCBCS is entitled to apply for licences, or (d) alternatively to (c), if present licensee no longer wishes to be responsible for cable undertakings, CCBCS is entitled to apply and be heard on same footing as any other applicant — Whether or not CRTC's denial of preliminary motion is a "decision or order" of the Commission, within meaning of s. 26(1) of the Broad casting Act, and s. 29 of the Federal Court Act — Broadcast ing Act, R.S.C. 1970, c. B-11, s. 26(1) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18(a), 29.
Plaintiffs, interveners in an application for approval of a transfer of control of corporate cablevision licensees before the CRTC, made a preliminary objection to jurisdiction, arguing that the CRTC had no legal power to grant a transfer of control over a licence. The CRTC reserved decision on that motion, proceeded to hear the application before it, and denied the application and therefore dismissed the objection as to jurisdiction. Rather than appealing to the Federal Court of Appeal, plaintiffs apply to the Trial Division pursuant to section I8(a) of the Federal Court Act for declarations that (a) the CRTC did not have jurisdiction to hear and decide applica tions for transfer of control over television licences, (b) if the CRTC did have jurisdiction, the matter had to be dealt with as an application for revocation of licence coupled with an application for new licence, (c) notwithstanding denial of trans fer of control, the application for revocation is still before the CRTC and the Lower Fraser Valley Committee for Communi- ty-Based Cablevision Services is still entitled to apply for the licences, or (d) alternatively to (c), if the present licensee no longer wishes to be responsible for the cable undertakings, CCBCS is entitled to apply and be heard on the same footing
as any other applicant. Plaintiffs' position is that the denial of the preliminary motion is not a "decision or order" of the Commission within the meaning of section 26(1) of the Broad casting Act and section 29 of thè Federal Court Act, while defendants take the opposite view.
Held, the application is dismissed. The plaintiffs' remedy was to apply to the Federal Court of Appeal for leave to appeal the CRTC decision, on grounds of lack of jurisdiction, denying the application for transfer of control. There is here only one decision or order of the CRTC, and not, as plaintiffs argue, one ruling on a preliminary motion, and a decision or order on the merits. What plaintiffs are seeking to do is appeal one part of the reasons of the Commission. It is a well-known principle that in an ordinary appeal from a lower court to a higher court (excluding trial de novo), what is appealed is the formal judgment of the court, not its reasons.
Re Libby, McNeill & Libby of Canada Ltd. (1979) 91 D.L.R. (3d) 281, agreed with.
APPLICATION. COUNSEL:
Andrew Roman for plaintiffs.
John Brunner for defendants Western Cable
Limited and M.S.A. Cablevision Limited.
J. D. Hilton for defendant Canadian Radio- television and Telecommunications Commis sion.
SOLICITORS:
Andrew Roman, Ottawa, for plaintiffs.
Minden, Gross, Grafstein & Greenstein, Toronto, for defendants Western Cable Lim ited and M.S.A. Cablevision Limited.
John M. Johnson, Ottawa, for defendant Canadian Radio-television and Telecommuni cations Commission.
The following are the reasons for judgment rendered in English by
COLLIER J.: The parties agreed, pursuant to Rule 475, upon a special case stated for the opin ion of the Court. That special case is attached to these reasons.
In setting the matter for hearing the Associate Chief Justice directed:
IT IS ORDERED that the said special case may be set down for argument but it is reserved to the trial judge to determine, after hearing argument, which of the questions submitted are proper or necessary to be answered to determine the matters in issue in the action and,
There were 7 questions submitted to the Court. I heard argument only on question one:
I. Does the Trial Division of the Federal Court of Canada have jurisdiction to entertain this action, or grant the relief sought in the Statement of Claim herein, or in the alternative, ought the Trial Division of the Federal Court of Canada to grant the relief so claimed, in view of Section 29 of The Federal Court Act, R.S.C. 1970 (2nd Supp.) C-10 as amended?
It appeared to me that if the answer to that question was in the negative, the remaining ques tions were academic.
The defendants, Western Cable Limited and M.S.A. Cablevision Limited each held a licence to operate a broadcasting receiving undertaking (cablevision) in certain areas in British Columbia. I shall refer to those two defendants as the licen sees. The licences were issued by the other defend ant (hereinafter "the CRTC").
Each licence contained certain conditions. The relevant ones to this litigation are:
This licence shall be conditional on compliance by the licensee with the provisions of the Broadcasting Act and the Regula tions enacted thereunder.
This licence shall be conditional upon the effective ownership or control of the broadcasting undertaking licensed not being transferred without the permission of the Canadian Radio- television and Telecommunications Commission.
If the licensee is incorporated as a private company the licence shall be conditional upon the ownership, or control of any share of the capital stock of the company, not being transferred either directly or indirectly without the permission of the Canadian Radio-television and Telecommunications Commission having been first obtained, and upon the control of the broadcasting undertaking licensed not being transferred in any manner whatsoever without the permission of the Canadian Radio- television and Telecommunications Commission having been first obtained.
If the licensee is a company other than a company incorporated as a private company, the licence shall be conditional upon the effective control of the broadcasting undertaking licensed not being transferred in any manner whatsoever, to any person, without the permission of the Canadian Radio-television and Telecommunications Commission having been first obtained.
The licensed broadcasting undertaking shall be operated in fact by the licensee in person or by bona fide employees of the licensee; provided however, that this condition may be omitted
or rescinded by the Canadian Radio-television and Telecom munications Commission.
This licence shall not be transferred or assigned; but the Commission may amend the licence to show a change in the name of the licensee company, if there is no change in control of the company.
On October 19, 1976 the licensees applied to the CRTC for approval of the transfer of control of the companies to Maclean-Hunter Cable TV Lim ited (hereinafter "Maclean-Hunter"). Maclean- Hunter was to acquire all the issued shares of the licensees.
The plaintiffs, other than the Canadian Broad casting League (hereinafter "CBL"), are members of an unincorporated association called the Lower Fraser Valley Committee for Community-Based Cablevision Services (hereinafter "CCBCS"). CCBCS wished to apply to the CRTC for a cablevision licence in the area in question. If granted, it proposed to operate the system on a non-profit basis.
CBL is described in the special case as follows:
The plaintiff The Canadian Broadcasting League (hereafter referred to as CBL) is a not-for-profit corporation with its head office at 53 Queen Street, Ottawa, Ontario. The Canadian Broadcasting League has worked in Canada for over forty years to educate the public and otherwise to advance the broadcasting system in Canada, including community-based broadcasting, through inter alia, briefs, conferences, and pres entations to regulatory bodies.
CBL and CCBCS were given the status of interveners in order to oppose the application for transfer of control. They took part in the public hearing held by CRTC.
At the hearing CCBCS said it was willing to prepare an application to the CRTC for the licences held by the licensees, if the CRTC would treat such an application "on a footing equal to that of Maclean-Hunter".
On applications such as the one by the licensees here, the practice of the CRTC is to treat it purely as a matter of transfer of control of the licensed undertaking; it does not, on that hearing, entertain applications by others for issue to them of the licences, or for the issue of new licences to replace the existing ones; if the application for transfer of
control is granted, the licence itself remains unal tered in the same corporate entity.
At the relevant times here, there were no applications before the CRTC to revoke the two licences, or to issue new licences.
At the outset of its submission at the hearing by the CRTC, CBL made an application or motion. CCBCS joined in it. Mr. Roman, counsel for CBL, put it this way (Transcript, pages 432-435):
The purpose of the motion is to suggest that the C.R.T.C. does not have the jurisdiction to come to a decision in this matter and I'll provide reasons as to why I think that is the case and that, therefore, the case ought to be adjourned with one of two possible results.
In essence, our submission is this: the applicants, Maclean- Hunter and Western have applied for something which this Commission has no legal power to grant, namely a transfer of control over a license. The Commission cannot grant this by means of any of its statutory powers which include the power to issue, revoke, renew or suspend a license.
A transfer of control is none of these. As a result, the Commission cannot lawfully reach any decision in this case either to approve or to deny this application for transfer; for an attempt to do so is to decide a question and to confer a privilege over which Parliament has given this Commission no power. The only lawful way, in my respectful submission, in which the Commission can at this time effect a transfer of license from Western to Maclean-Hunter is to revoke Western's license in accordance with Section 24-1A of the Broadcasting Act, namely with the consent of the license holder and then to issue a new license to Maclean-Hunter.
In looking at the question of the issue of a new license, the Commission must come to its decision with an open mind and without having decided in advance that it would be granted to Maclean-Hunter. As with any other hearing for a new license before this Commission, everyone who wants to apply must be allowed to do so and the Commission must treat all of these applications equally.
The Commission cannot give any weight to any submission by the present licensee as to who he would like his successor to be, nor be influenced by the existence of any purported agree ment of sale.
Specifically, what I'm requesting is that the Commission adjourn after our hearing today or preferably before the hear ing and make no decision in this matter. Then in fairness to the applicants in this case that the Commission advise these appli cants for transfer, that their application may be withdrawn without prejudice to themselves.
If, in that circumstance, the applicants want to keep their application before the Commission, then the Commission should advise them that it would become part of a public
hearing under Section 19-1A of the Broadcasting Act for the issue of a new license.
In that hearing, other applicants may wish to apply for this new license in competition with the present applicants for transfer. If the applicants withdraw their application, that presumably would end the matter. If not, we would move into the type of public hearing I've just described.
Finally, we would request the Commission if they accept our motion so far to make a public announcement to advise the public, including prospective applicants, for any transfers for a broadcast license or for a broadcast receiving undertaking license that the Commission will no longer hear applications for transfer of control, but will treat these as being a surrender of license with an issue of a new license to follow after a normal public hearing for a new license.
That's essentially what we're asking the Commission and I'd like to give you our reasons why if it's clear what we're requesting.
Mr. Roman then developed his submissions. At the conclusion of the discussions on that motion the chairman at the hearing said (page 461):
The motion made by the Canadian Broadcasting League has serious implications, and merits further consideration by the Commission. Accordingly, the Commission's decision on the motion is reserved.
We will now proceed to hear the Application and Interven tions in the usual manner, without prejudice to our consider ation of the motion. The parties are here, ready to proceed and we can safely hear the application without prejudicing any rights.
The CRTC then went on to hear, on the merits, the application for transfer of control.
CBL and CCBCS presented submissions oppos ing the licensees' applications.
On April 15, 1977 the CRTC gave its decision (CRTC 77-275). I set out the relevant portions:
Western Cablevision Limited
M.S.A. Cablevision Ltd.
Applications for approval of the transfer of control of:
a) Western Cablevision Limited
b) M.S.A. Cablevision Ltd.
to Maclean-Hunter Cable TV Limited through the acquisition of all the issued shares of Western Cablevision Limited (1,090,- 533 common shares).
Decision: DENIED
The transfer of control of a licenced broadcasting undertaking frequently results in additional financial obligations being imposed, directly or indirectly, on the undertaking involved. In such circumstances the Commission must be fully satisfied, before granting approval, that such a transfer will not affect the
ability of the licensee to maintain existing broadcasting ser vices; that it will benefit the subscribers and the communities concerned; and that it is in the public interest.
In the present case, the Commission is not satisfied that the proposed transactions would so benefit the subscribers and the communities concerned.
At the hearing of the application, one of the interveners, the Canadian Broadcasting League, made a preliminary motion to the effect that the Commission lacks the statutory authority to approve the transfer, directly or indirectly, of the effective control of corporations licensed by the Commission to operate broadcasting undertakings. The Commission heard argument on the subject and reserved its decision on the motion.
After deliberating on this matter, the Commission is of the opinion that it has the power under Sections 17, 15 and 3 of the Broadcasting Act both to regulate and to approve the transfer of effective control of corporate licensees. It finds support for its view in the recent decision of the Federal Court of Appeal in the case John Graham & Co. Ltd. v. CRTC (1976) 68 D.L.R. (3d) 110. [[1976] 2 F.C. 82.]
The motion of the Canadian Broadcasting League in this matter is accordingly dismissed.
The plaintiffs took no steps to appeal the deci sion of the CRTC to the Federal Court of Appeal. The relevant statutory provisions are as follows':
26. (1) An appeal lies from a decision or order of the Commission to the Federal Court of Appeal upon a question of law or a question of jurisdiction, upon leave therefor being obtained from that Court upon application made within one month after the making of the decision or order sought to be appealed from or within such further time as that Court or a judge thereof under special circumstances allows.
(5) Any minute or other record of the Commission or any document issued by the Commission in the form of a decision or order shall, if it relates to the issue, amendment, renewal, revocation or suspension of a broadcasting licence, be deemed for the purposes of section 25 and this section to be a decision or order of the Commission.
This action was then brought in the Trial Divi sion of this Court [[1978] 1 F.C. 830], seeking, pursuant to paragraph 18(a) of the Federal Court Act', declaratory relief as follows [at page 832]:
' Broadcasting Act, R.S.C. 1970, c. B-11, as amended. 2 R.S.C. 1970 (2nd Supp.), c. 10.
12. The plaintiffs therefore claim:
a) a declaration that the Broadcasting Act does not permit the CRTC to hear and to decide "applications for transfer of control" over cable television licenses by means of applica tions for transfer of control of the companies which hold the licenses;
b) a declaration that if the Commission had any jurisdiction to hear the matter, it had to treat it as an application for the revocation of a license coupled with an application for a new license in the same areas;
c) a declaration that notwithstanding the denial of the license to Maclean-Hunter, the application for revocation is still before the Commission and the Lower Fraser Valley Committee for Community-Based Cablevision Services is entitled to apply to and be heard by the CRTC in relation to the licenses for the territories of New Westminster/Surrey, and Abbotsford/Clearbrook on a footing equal to that of any applicant who may have applied or who shall apply;
d) alternative to sub-paragraph (c) above, a declaration that if and when the present licensee no longer wishes to be responsible for operating his cable undertakings, the Lower Fraser Valley Committee for Community-Based Cablevision Services is entitled to apply to and be heard by the CRTC in relation to the licenses for the territories of New Westmin- ster/Surrey, and Abbotsford/Clearbrook on a footing equal to that of any applicant who may have applied or who shall apply;
e) such further and other relief as to this court may seem just.
Another relevant statutory provision (referred to in question 1) is section 29 of the Federal Court Act:
29. Notwithstanding sections 18 and 28, where provision is expressly made by an Act of the Parliament of Canada for an appeal as such to the Court, to the Supreme Court, to the Governor in Council or to the Treasury Board from a decision or order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commis sion or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except to the extent and in the manner provided for in that Act.
The plaintiffs' position is that the denial by the CRTC of the preliminary motion is not a "decision or order" of the Commission, within the meaning of those words as found in subsection 26(1) of the Broadcasting Act and section 29 of the Federal Court Act.
The defendants take the opposite view. It is their submission the plaintiffs' remedy was to apply to the Federal Court of Appeal for leave to appeal the CRTC decision, on grounds of lack of jurisdic tion, denying the application for transfer of control.
I agree with the defendants' submission.
There is here, in my view, only one decision or order of the CRTC. Not, as the plaintiffs would have it, one ruling on a preliminary motion, and a decision or order on the merits. It was open to the CRTC to dismiss the application for transfer of control solely on jurisdictional grounds. It could have gone along with the plaintiffs' view, and refused to approve the transfer of control, on the grounds it had no jurisdiction to hold a hearing and decide on that matter, but must first revoke the licences, then hold hearings in respect of new licences. If that had been the CRTC's sole grounds, the plaintiffs would have obtained all they wanted including the blocking of the transfer of control. But the licensees would, to my mind, have been entitled to apply for leave to appeal, on the jurisdictional ground, the denial of the transfer.
It was also open to the CRTC to deny the transfer application on the grounds in fact taken here by the CRTC: we have jurisdiction, but the application, on the merits, fails.
The plaintiffs were entitled, in my view, to ask for leave to appeal on the grounds the CRTC had no jurisdiction to come to the decision it did (refusing to approve transfer of control). That, I think, is so, even though the plaintiffs, (interven- ers) had obtained one of their objects: the blocking of the transfer.
The "decision or order" in this case was the denial of the licensees' application. What the plaintiffs are really seeking to do, in this litigation, is appeal one part of the reasons of the Commis sion. It is a well-known principle that in an ordi nary appeal from a lower court to a higher court (excluding trial de novo), what is appealed is the formal judgment of the court, not its reasons.
A somewhat similar situation to the one here was dealt with recently by the Ontario Court of Appeal in Re Libby, McNeill & Libby of Canada Ltd.' MacKinnon A.C.J.O., said, at page 282:
3 (1979) 91 D.L.R. (3d) 281.
While the Board declared that the threats were contrary to the Act it declined to exercise its discretion to issue a direction against further threats on the basis that there was an absence of evidence of a history of such threats, and also because there was, in the majority's view, no collective agreement in existence at the time of the decision of the Board. The respondent company moved for judicial review of the decision. It asked for an order quashing the decision on the grounds that the Board was either without jurisdiction or had exceeded its jurisdiction in declaring the collective agreement null and void from Febru- ary 7, 1977, onward. Counsel for the company candidly acknowledged that when the matter was before the Divisional Court he was not attacking the declaration which his client had of course asked for, nor was he asking the Divisional Court to quash the refusal of the Board to issue a cease and desist order and to remit the matter to the Board. What he was concerned with and what he wished reviewed was the statement by the Board in the course of its decision that the collective agreement was at an end as of February 7, 1977. The formal order of the Divisional Court, in effect, and understandably based on the argument before that Court, set aside a portion of the reasons for judgment which portion, in our view, was not necessary to the decision of the Board. The Divisional Court did not deal with the actual decision of the Board.
Counsel for all parties acknowledge that what was quashed or set aside by the Divisional Court was not the decision of the Board declaring that there was a collective agreement in effect at the relevant time and refusing to issue the requested cease and desist order, and it certainly was not a part of the applica tion or relief sought by the company before the Board. Although we are unhappy about the result, and we can under stand the parties' anxiety to have the issue raised in the appeal resolved, we cannot see our way clear to hearing submissions with relation to an attack on a portion of the reasons of a tribunal. To proceed in such a way could have even unhappier results from the standpoint of practice and procedure. The judicial review process relates to attacks on decisions of tri bunals, and, although the reasons of a tribunal may be referred to to ascertain whether the decision has been arrived at by reviewable error, a portion of the reasons cannot be attacked and quashed leaving the decision itself intact. We are all of the view that the proceedings were misconceived from the date of the Board's decision and we are not in a position to reconstitute them.
Question 1 is, therefore, answered in the negative.
The formal order should, in my view, provide for dismissal of the action. I shall not issue the pro nouncement until counsel have, if they wish, made representations. Those can be in writing and arranged through the registry.
Court No. T-2365-77
IN THE FEDERAL COURT OF CANADA TRIAL DIVISION
BETWEEN:
STEPHEN CHITTY, DOROTHIA ATWATER, WAYNE KERR, SHARRON LANG, DAVID COULSON, ULLA SORRENSON, PETER HAY, and the CANADIAN BROADCASTING LEAGUE,
Plaintiffs
-and-
THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION, WESTERN CABLE LIMITED and M.S.A. CABLEVISION LIMITED
Defendants
SPECIAL CASE STATED FOR THE OPINION OF THE COURT PURSUANT TO RULE 475 OF THE GENERAL RULES OF THE
COURT
The parties concur on the following statement of facts:
I. The plaintiffs Stephen Chitty, Dorothia Atwater, Wayne Kerr, Sharron Lang, David Coulson, Ulla Sorrenson and Peter Hay are members of an unincorporated association known as the Lower Fraser Valley Committee for Community-Based Cablevision Services (hereafter referred to as CCBCS), and wish to apply for a cable television licence from the Canadian Radio-Television and Telecommunications Commission. If granted such a licence CCBCS would operate its cable systems on a not-for-profit basis.
2. The plaintiff The Canadian Broadcasting League (hereafter referred to as CBL) is a not-for-profit corporation with its head office at 53 Queen Street, Ottawa, Ontario. The Canadian Broadcasting League has worked in Canada for over forty years to educate the public and otherwise to advance the broadcasting system in Canada, including community-based broadcasting, through inter alia, briefs, conferences, and pres entations to regulatory bodies.
3. The defendant The Canadian Radio-television and Telecom munications Commission (hereafter referred to as the CRTC) is the regulatory body established by The Broadcasting Act, R.S.C. 1970 c. B-11 to regulate and supervise all aspects of the Canadian Broadcasting system.
4. Western Cablevision Limited and its wholly-owned subsidi ary MSA Cablevision Limited (hereinafter together referred to as the "Two Cable Licensees") are each bodies corporate.
5. At all material times, the New Westminster, Surrey, Abbotsford and Clearbrook areas of British Columbia were, and still are, receiving cable television service from one or the other of the Two Cable Licensees, pursuant to two licences (hereafter called the "Licences") to operate a broadcasting receiving undertaking issued by the defendant, CRTC, one to each of the Two Cable Licensees, for the period April 1, 1976 to March 31, 1979 inclusive, which Licences are presently valid, subsisting and in good standing. A broadcasting receiving
undertaking includes a cable system made up of a head-end, studios, trunk cables, electrical equipment and drops to individual households and residences. To implement the licences and to provide the cable services, the licensees have entered into various agreements with B.C. Telephone Company and the City of New Westminster. Western Cablevision Lim ited has approximately 600 miles of cable and services some 53,000 subscribers. The Defendant, M.S.A. Cablevision Lim ited has approximately 120 miles of cable and services approxi mately 9,700 subscribers.
6. Each of the Licences contains, inter alia, the following express conditions:
This licence shall be conditional on compliance by the licen see with the provisions of the Broadcasting Act and the Regulations enacted thereunder.
This licence shall be conditional upon the effective ownership or control of the broadcasting undertaking licensed not being transferred without the permission of the Canadian Radio- television and Telecommunications Commission.
If the licensee is incorporated as a private company the licence shall be conditional upon the ownership, or control of any share of the capital stock of the company, not being transferred either directly or indirectly without the permis sion of the Canadian Radio-television and Telecommunica tions Commission having been first obtained, and upon the control of the broadcasting undertaking licensed not being transferred in any manner whatsoever without the permission of the Canadian Radio-television and Telecommunications Commission having been first obtained.
If the licensee is a company other than a company incorpo rated as a private company, the licence shall be conditional upon the effective control of the broadcasting undertaking licensed not being transferred in any manner whatsoever, to any person, without the permission of the Canadian Radio- television and Telecommunications Commission having been first obtained.
The licensed broadcasting undertaking shall be operated in fact by the licensee in person or by bona fide employees of the licensee; provided however, that this condition may be omitted or rescinded by the Canadian Radio-television and Telecommunications Commission.
This licence shall not be transferred or assigned; but the Commission may amend the licence to show a change in the name of the licensee company, if there is no change in control of the company.
7. On October 19, 1976 the Two Cable Licensees each filed an application with the defendant, CRTC, for approval of the transfer of control of Western Cablevision Limited and M.S.A. Cablevision Limited to Maclean-Hunter Cable T.V. Limited (hereafter referred to as Maclean-Hunter) through the acquisi tion by Maclean-Hunter of all the issued shares of Western Cablevision Limited from the present shareholders of the latter.
8. On the 10th day of January 1977, CBL, supported by CCBCS filed an intervention statement opposing the said applications, and thereby became Intervenors in accordance with the CRTC rules. In support of their interventions, CCBCS and CBL attended the defendant's public hearing of the matter commencing the 25th day of January 1977 in Vancouver, British Columbia.
9. The preparation of an application for a CRTC licence can be an undertaking requiring the investment of a considerable amount of effort, as well as money, for legal, accounting and other expert's fees.
10. CCBCS indicated at the public hearing in Vancouver that it would be willing to prepare an application for the licences held by the Two Cable Licensees, and to submit such applica tion to the CRTC, should the latter indicate a readiness to treat this application for the licences on a footing equal to that of Maclean-Hunter.
11. The defendant, CRTC's practice with respect to the instant applications was, consistent with its practice in similar cases, to treat the matter as an application pursuant to the conditions of licence, for approval of the transfer of control of the broadcast ing undertaking licensed, with the licence itself remaining unaltered in the same corporate entity. In such circumstances, no application by any party for the issue to it of the licence, or for a new licence to replace the existing licence, is entertained by the defendant CRTC.
12. The custom of the defendant, CRTC is to allow to be outstanding at one time, only one broadcasting receiving under taking licence to provide service to any given area.
13. There was no application in fact before the defendant, CRTC to revoke the Licences, nor was there an application in fact by any person or corporation for the issuance of a new licence. The sole applications in fact before the defendant CRTC, were the ones filed by the Two Cable Licensees as referred to in paragraph 7 hereof.
14. The Two Cable Licensees at no time in fact, expressly or by implication, applied to the defendant, CRTC, for or consent ed to, a revocation of the Licences.
15. The defendant, CRTC, has at no time purported to act pursuant to Section 24 of The Broadcasting Act to revoke the Licences.
16. Maclean-Hunter at no time applied to the defendant, CRTC, for the issuance to it of broadcasting receiving under taking licences authorizing it to provide cable television service to those areas now subject to the Licences.
17. None of the plaintiffs has applied to the defendant CRTC, for the issue to any one or more of them, or any body controlled by them, of broadcasting receiving undertaking licences author izing the provision of cable television service to all or any part of those areas now subject to the Licences.
18. On the 15th day of April 1977 the CRTC issued its decision CRTC 77-275 in which it denied the applications for its consent to the proposed transfer of control, and dismissed the motions of CBL and CCBCS which alleged that the Commission did not have jurisdiction to deal with such applica tions for transfer of effective control.
19. No appeal was taken by the plaintiffs, or any of them, to the Federal Court of Appeal from the decision of the defend ant, CRTC, dated April 15, 1977 herein, pursuant to The Broadcasting Act.
20. The defendant CRTC, has not treated the conditions of licence referred to in paragraph 6 hereof as if they were Regulations or other Statutory Instruments, to be processed pursuant to The Statutory Instruments Act.
21. The following documents are referred to and form part of this case:
1) The Broadcasting Act and the CRTC Rules of Procedure made thereunder.
2) The two Licences granted to the Two Cable Licensees.
3) The applications by the Two Cable Licensees to the Com mission for transfer of effective control to Maclean-Hunt er.
4) The intervention statement of CBL.
5) The intervention statement of CCBCS.
6) Such portions of the transcript of the hearing that include submissions by the Two Cable Licensees and the interven- ors, questions by Commissioners or Counsel for the defendant, and answers thereto.
7) CRTC Decision 77-275.
8) Copy of CRTC telex message from Guy Lefebvre dated October 19th, 1976 to Mr. John Young of Capital Cable Co-operative outlining Commission policy re applications by third parties for a licence during a Commission hearing dealing with transfers of effective control.
QUESTIONS FOR THE COURT
1. Does the Trial Division of the Federal Court of Canada have jurisdiction to entertain this action, or grant the relief sought in the Statement of Claim herein, or in the alternative, ought the Trial Division of the Federal Court of Canada to grant the relief so claimed, in view of Section 29 of The Federal Court Act, R.S.C. 1970 (2nd Supp.), C-10 as amended?
2. Do the plaintiffs, or any of them, have the right in law, to now question whether the defendant, CRTC, had jurisdiction, to entertain the applications filed by Western Cablevision Limited and M.S.A. Cablevision Limited, and to issue its decision dated April 15, 1977?
3. Do The Broadcasting Act, the Regulations thereunder, and the Rules of Procedure of the defendant, CRTC, give the defendant CRTC the authority to insert the conditions of licence set forth in paragraph 6 hereof in a broadcasting receiving undertaking licence issued by it?
4. If the answer to the previous question is yes, must the conditions of licence comply with the provisions of The Statu tory Instruments Act, and if so do such conditions of licence comply therewith?
5. Does the defendant CRTC, have jurisdiction to hear and determine an application for approval of the transfer of control of a corporate broadcasting undertaking licensee, through the transfer of the issued shares of the said licensee?
6. Should the defendant, CRTC, have treated the applications by the Two Cable Licensees as applications for the revocation of the broadcasting undertaking licences issued to them, cou pled with an application for a new licence in the same areas?
7. Does the acceptance or hearing by the CRTC of an applica tion for transfer of the effective control of a corporation holding a broadcasting licence, by means of transfer of shares, in the context of The Broadcasting Act, constitute in law the surren der and revocation of the existing licence?
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.