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T-2093-88
Federal Liberal Agency of Canada and Red Leaf Communications Limited (Plaintiffs)
v.
CTV Television Network Ltd., Canadian Broad casting Corporation, Global Telecommunications Limited (Defendants)
INDEXED AS: FEDERAL LIBERAL AGENCY OF CANADA v. CTV TELEVISION NETWORK LTD.
Trial Division, Martin J.—Ottawa, November 7 and 8, 1988.
Federal Court jurisdiction — Trial Division — Canada Elections Act imposing statutory obligation on defendant net works to make broadcasting time available to political parties — Court having jurisdiction to hear application for interlocu tory injunction under Federal Court Act, s. 23 — Not merely matter of contract between parties — Jurisdiction not other wise specifically assigned — Broadcasting Arbitrator's deci sion final only with respect to allocation of times, not content of advertising.
Broadcasting — Partisan political broadcasting — Limita tion on powers of Broadcast Arbitrator under Canada Elec tions Act — CRTC without power to censor such advertising — Networks may not frustrate parties' statutory right to have broadcasting time by refusing material submitted.
Elections — Political broadcasting — Function of Broad cast Arbitrator under Canada Elections Act not extending to content of advertising — CRTC lacking authority to censor advertising — Networks under obligation to broadcast adver tisements submitted unless able to show cause for relief therefrom.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Broadcasting Act, R.S.C. 1970, c. B-11, ss. 3, 15. Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14. Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss.
18, 23.
Federal Court Rules, C.R.C., c. 663, R. 469.
CASES JUDICIALLY CONSIDERED
APPLIED:
Turmel v. Canadian Radio-television and Telecommuni cations Commission, T-2884-83, Walsh J., judgment dated 16/12/83, F.C.T.D., not reported.
COUNSEL:
William T. Green, Q.C. and Claude Brunet for plaintiffs.
Edward A. Ayers, Q. C. and Gary A. Maavara for defendant CTV Television Network Ltd.
Gordon F. Henderson, Q.C. and Rose-Marie Perry, Q.C. for defendant Canadian Broad casting Corporation.
William T. Houston for defendant Global Communications Limited.
SOLICITORS:
Beament, Green, York, Manton, Ottawa, for plaintiffs.
Borden & Elliot, Toronto, for defendant CTV Television Network Ltd.
Gowling & Henderson, Ottawa, for defendant Canadian Broadcasting Corporation.
Fraser & Beatty, Ottawa, for defendant Global Communications Limited.
The following are the reasons for order ren dered in English by
MARTIN J.: The defendants, CTV Television Network Ltd. and Canadian Broadcasting Corpo ration, object to the hearing of this application on the grounds that this Court has no jurisdiction.
I agree with Mr. Green that service of the statement of claim is not a condition precedent to the application for an interlocutory injunction because that can be made at any time under Rule 469 [Federal Court Rules, C.R.C., c. 663].
I also accept his argument that he did not add the other networks or broadcasters as defendants for the simple reason that they did not refuse to broadcast his clients' advertising.
I accept Mr. Henderson's argument that I have no jurisdiction to act under section 18 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] because the defendants are not federal boards, commissions or tribunals.
However I do not accept his argument that I have no jurisdiction because this is a matter of
contract between the parties. Nor do I accept his suggestion that Exhibit G to Mr. Lutfy's affidavit forms the basis of that agreement. Exhibit G is simply an operating agenda setting out such details as make-up, times of arrival, photo opportunities and the height of the leaders' lecterns for the debate. It is more a set of agreed ground rules governing the debate and not an agreement cover ing ownership or proprietary rights to the broad cast itself.
Nor do I accept his submission that the October 24, 1988 letter from Canadian Broadcasting Cor poration to the Secretary General of the Liberal Party of Canada forms the basis of an agreement between the defendant networks and the plaintiffs. Whether or not at all and, if so, to what extent a unilateral declaration by one party can form the basis of an agreement among several is a matter for argument. The letter appears to me simply to be an assertion by the networks that they own copyright in the party leader debates. Whether they do or not and the results which follow from such ownership, if it can be established, is a matter for argument.
Mr. Ayers submits that I have no jurisdiction under section 23 of the Federal Court Act because, by reason of sections 3 and 15 of the Broadcasting Act [R.S.C. 1970, c. B-11], the jurisdiction to deal with the issue raised by the plaintiffs has been specifically assigned to the Canadian Radio-televi sion and Telecommunications Commission (CRTC) or, in the alternative, to the Broadcasting Arbitrator who has already dealt with the matter by issuing his final and binding guidelines which form Exhibit B to Mr. Kotcheff's affidavit.
As I read the Canada Elections Act [R.S.C. 1970 (1st Supp.), c. 14] the Broadcast Arbitrator's function is to allocate times for partisan political broadcasting among the several political parties in an equitable manner. It is correct to say, as Mr. Ayers said, that his decision is final and binding but it is only final and binding with respect to the allocation of times. He is not authorized to deal with the content of the advertising which the political parties present for broadcasting at the times allocated to them.
Neither is the CRTC authorized to act as censor for such advertising. I refer you to Mr. Justice Walsh's decision of December 16, 1983 in the John C. Turmel [Turmel v. Canadian Radio- television and Telecommunications Commission, T-2884-83, F.C.T.D., not reported] action against the CRTC, at page 8, in which he relied upon the case of National Indian Brotherhood v. Juneau (No. 3), [1971] F.C. 498 (T.D.), at page 513 to conclude that no such authority vested in CRTC in the following terms:
At page 513 it was pointed out that in reading the Act as a whole it is difficult to conclude that Parliament intended to give the Commission the authority to act as a censor of programmes to be broadcast or televised. The judgment stated:
If this had been intended, surely provision would have been made somewhere in the Act giving the Commission authority to order an individual station or a network, as the case may be, to make changes in a programme deemed by the Com mission, after an inquiry, to be offensive or to refrain from broadcasting same. Instead of that, it appears that its only control over the nature of programmes is by use of its power to revoke, suspend or fail to renew the licence of the offend ing station.
Without deciding, or rather prejudging, the several parts of the plaintiffs' motion except for paragraph (a) i.e. that the special time for hearing this motion be set, and I set that time for this morning immediately following my comments, it seems to me that the statutory right of political parties to have broadcasting time assigned to them will be completely frustrated if the networks or broadcasters arbitrarily or capriciously refuse to broadcast the advertising which the political par ties present to them for broadcast.
If the broadcasters or networks have a statutory obligation to provide broadcasting time it follows, in my view, that it is just as much a statutory obligation that they must, unless they can demon strate a very clear legal reason for not doing so, broadcast the material with which they are pre sented by those respective parties.
Because, in my view, the statutory obligation of the defendant networks under the Canada Elec tions Act to make broadcasting time available for partisan political advertisements carries with it the obligation to broadcast the advertisements, or in the alternative to show cause why they should be relieved of the obligation to broadcast them, I find
that this Court has the jurisdiction to hear this application under the provisions of section 23 of the Federal Court Act.
If the plaintiffs can persuade me to grant the relief requested under paragraphs (b) and (c) of the application I will proceed with the merits of the application today. In this respect I will hear arguments from counsel on paragraphs (b) and (c) (I presume that the order requested under para graph (d) has been abandoned because the action has been commenced) and will proceed on the balance of the application only if the plaintiffs are successful on paragraphs (b) and (c).
In the interim the motions of the defendants, Canadian Broadcasting Corporation and CTV Television Network Ltd., to dismiss the plaintiffs' application for want of jurisdiction of the Court to hear it will be dismissed with no order as to costs.
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