T-3366-90
Canadian Union of Public Employees, Anne-Mar-
ie Campbell, Valérie Pretty, Onorio Tersigni,
Anita Dell, Solange Morissette, Luc Imbeault,
Solange Beaulieu, Del Fehrenbach and Donna
Paddon (Respondents-Plaintiffs)
v.
Canadian Broadcasting Corporation (Applicant-
Defendant)
INDEXED AS: CANADIAN UNION OF PUBLIC EMPLOYEES V.
CANADIAN BROADCASTING CORP. (T.D.)
Trial Division, Rouleau J.—Ottawa, March 6 and
19, 1991.
Broadcasting — Statement of claim for prerogative and
injunctive relief to compel CBC to re-open stations closed due
to budget restraints — Whether union, CBC employees having
standing — Whether jurisdiction `otherwise specially
assigned" within Federal Court Act, s. 23 — Analysis of
Broadcasting Act — Had Court not lacked jurisdiction,
motion to strike denied as question whether CBC having power
to restructure without statutory amendment constituting
reasonable cause of action.
Federal Court jurisdiction — Trial Division — Court lack
ing jurisdiction to grant prerogative and injunctive relief to
compel CBC to re-open stations closed due to budget
restraints — Broadcasting Act delegating power of review over
CBC on issues of policy and law to CRTC — Power of review
"otherwise specially assigned" within Federal Court Act, s. 23
although CRTC powerless to enforce findings, performance of
conditions by CBC.
Practice — Pleadings — Motion to strike — Statement of
claim for prerogative and injunctive relief to compel CBC to
re-open stations closed due to budget restraints Motion
allowed as Court lacking jurisdiction But for jurisdictional
problem, motion denied as question whether CBC can restruc
ture without statutory amendment constituting reasonable
cause of action.
Practice — Parties — Standing — Statement of claim
seeking prerogative and injunctive relief to compel CBC to
re-open stations closed due to budget restraints — Individual
plaintiffs, although employees of CBC, having standing as
citizens interested in loss of programming — CUPE without
standing as recourse restricted to labour arbitration.
This was a motion to strike the statement of claim on the
ground that the Federal Court did not have jurisdiction to try
the matter. Due to budget restraints, the CBC closed certain
stations. The statement of claim sought prerogative and injunc-
tive relief to compel CBC to re-open the stations. The issues
were whether the plaintiffs had standing; whether the Court
had jurisdiction; and whether there was a reasonable cause of
action. The CBC argued that the only relationship between
CUPE and the individual plaintiffs (employees of CBC) was
governed by collective agreement and was therefore subject to
the Canada Labour Code, which sets out an arbitration proce
dure for resolving grievances; and that the Court lacked juris
diction since the Broadcasting Act provides a procedure for the
resolution of the dispute and therefore only the CRTC is
empowered to determine the issue. The respondents-plaintiffs
submitted that the Court had jurisdiction since the Broadcast
ing Act exempts the CBC from any exercise of control by the
CRTC and the budget cuts have altered the CBC's broadcast
ing policy contrary to the Act. Accordingly, it was asserted that
the Court had jurisdiction under Federal Court Act, section 23
(which gives the Trial Division jurisdiction where relief is
sought under an Act of Parliament in relation to an undertak
ing connecting any province, except where that jurisdiction has
been "otherwise specially assigned"). The applicant-defendant
submitted that the power to review the CBC fell within the
exception in section 23.
Held, the motion should be allowed.
Although CUPE lacked standing as its recourse was limited
to labour arbitration, the individual respondents-plaintiffs were
entitled to bring this application as citizens interested in the
loss of programming. That conclusion was based upon an
application of the tripartite test in Finlay v. Canada (Minister
of Finance): (1) the issues raised were serious; (2) the individu
als had a genuine interest and had not waived their rights as
concerned citizens by signing a collective agreement; and (3) if
the respondents-plaintiffs were denied standing there would be
no other way in which the issues could be brought before a
court.
The Court lacked jurisdiction over this matter. The Broad
casting Act delegates the power of review on issues of policy
and law to the CRTC. The power of review has been `other-
wise specially assigned" within Federal Court Act, section 23.
Though the CRTC lacks the power to enforce its findings or
performance of conditions with respect to the CBC, their
mechanism is exercised by Ministerial control. Further, the
implementation of policy is specifically limited by the phrase
"as public funds become available". This allocation is directed
by Parliament which must be aware that the imposition of
financial constraints will ultimately affect broadcast policy and
the ability of the CBC to carry out its mandate. The courts
cannot override the legislative function when it is acting clearly
within the scope of its authority. This "special procedure
ordained by Parliament" should be respected. Supervisory con
trol over the CBC has been appropriated to the Executive and
Parliament. The exercise of this power is in accordance with the
parliamentary prerogative to reserve unto itself the ultimate
determination of broadcasting policy as it relates to the CBC.
Although the Federal Court does not have jurisdiction under
Federal Court Act, section 18 because the CBC is not a federal
board, commission or other tribunal it would have had the
authority to grant injunctive relief under section 44, had the
powers not been "otherwise specially assigned".
The issue as to whether the CBC can implement the restruc
turing without amending the Act was a reasonable cause of
action, but the evidence was too complex to be resolved on an
interlocutory motion. Accordingly, the statement of claim
would not have been struck absent the jurisdictional issue.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Broadcasting Act, R.S.C., 1985, c. B-9, ss. 3, 5, 6, 8, 10,
15, 17, 39.
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 56, 57.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 18, 23, 44.
Federal Court Rules, C.R.C., c. 663, R. 419(1)(a).
CASES JUDICIALLY CONSIDERED
APPLIED:
Finlay v. Canada (Minister of Finance), [ 1986] 2 S.C.R.
607; (1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603;
23 Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338;
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1;
33 N.R. 304.
DISTINGUISHED:
Pringle et al. v. Fraser, [1972] S.C.R. 821; (1972), 26
D.L.R. (3d) 28; Grand Trunk Railway Co. v. McKay
(1903), 34 S.C.R. 81; 3 C.R.C. 52; Kiist v. Canadian
Pacific Railway Co., [1982] 1 F.C. 361; (1981), 123
D.L.R. (3d) 434; 37 N.R. 91 (C.A.).
CONSIDERED:
National Indian Brotherhood v. CTV Television Net
work, [1971] F.C. 127 (T.D.); Shuswap Cable Ltd v.
Canada, [1987] 1 F.C. 505; (1986), 31 D.L.R. (4th)
349; 13 C.P.C. (3d) 128; 5 F.T.R. 114 (T.D.); Federal
Liberal Agency of Canada v. CTV Television Network
Ltd., [1989] 1 F.C. 319; (1988), 24 C.P.R. (3d) 466
(T.D.); Gendron v. Supply and Services Union of the
Public Service Alliance of Canada, Local 50057, [1990]
1 S.C.R. 1298; [1990] 4 W.W.R. 385; (1990), 66 Man.
R. (2d) 81; 44 Admin. L.R. 149; 90 CLLC 14,020.
REFERRED TO:
St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper
Workers Union, Local 219, [1986] 1 S.C.R. 704; (1986),
73 N.B.R. (2d) 236; 28 D.L.R. (4th) 1; 184 A.P.R. 236;
86 CLLC 14,037; 68 N.R. 112; Canada Metal Co. Ltd.
et al. v. Canadian Broadcasting Corp. et al. (No. 2)
(1975), 11 O.R. (2d) 167; 65 D.L.R. (3d) 231; 29 C.C.C.
(2d) 325 (C.A.); Wilcox v. Canadian Broadcasting
Corp., [1980] 1 F.C. 326; (1979), 101 D.L.R. (3d) 484
(T.D.).
COUNSEL:
Robert Dury and Julien Savoie for respond-
ents-plaintiffs.
Roy L. Heenan and Thomas Brady for
applicant-defendant.
SOLICITORS:
Trudel, Nadeau, Lesage, Cleary, Larivière
and Associates, Montréal, for respondents-
plaintiffs.
Heenan Blaikie, Montréal, for applicant-
defendant.
The following are the reasons for order ren
dered in English by
ROULEAU J.: This is a counter motion by the
Canadian Broadcasting Corporation ("CBC") to
strike the plaintiffs' statement of claim on the
grounds that the Federal Court has no jurisdiction
to entertain the matter or to grant the relief
claimed. The Canadian Union of Public
Employees ("CUPE") and nine employees of the
CBC in the initial proceeding sought prerogative
and injunctive relief directing the Corporation to
comply with the mandate conferred upon it by the
Broadcasting Act, R.S.C., 1985, c. B-9 (herein-
after referred to as the "Act"), and to adhere to
and respect the requirements established by the
Canadian Radio-television and Telecommunica
tions Commission ("CRTC"). Effectively, the
respondents-plaintiffs request the Court to compel
the re-opening of stations and resume the pro
gramming suspended because of budget con
straints.
It was agreed that the Court would hear the
application to determine its jurisdiction before pro
ceeding any further. The CBC argues that CUPE
and the independent plaintiffs have no standing; as
parties to a collective agreement their status is
bound by procedures set out in the Canada Labour
Code [R.S.C., 1985, c. L-2]; that this Court has no
jurisdiction since the Broadcasting Act provides a
procedure for the resolution of this dispute and
therefore only the CRTC is empowered to deter
mine the issue.
The respondent argues that the Federal Court
has jurisdiction since the Broadcasting Act pro
vides no process and in fact exempts the CBC from
any exercise of control by the CRTC; that the
announced budget cuts have altered the CBC's
imposed broadcasting policy contrary to the Act.
Facts
On December 5, 1990, as a result of financial
cutbacks determined by Parliament, the CBC
announced a restructuring of its operations. The
measures taken by the CBC involve the closure of
certain stations as well as the transformation of
others into information bureaus. As a result, the
CRTC has ordered public hearings which have
commenced March 18, 1991. During this process,
the Commission will review the proposed changes
in light of the CBC's established broadcasting
policy, its existing resources and potential further
budget reductions (CRTC Notice of public
hearing).
Main Issues to be Determined
The main issues to be determined are whether
the plaintiffs have standing to bring the action,
whether the Court has jurisdiction to entertain the
matter and whether there is a reasonable cause of
action pursuant to Rule 419(1)(a) [Federal Court
Rules, C.R.C., c. 663].
A. Standing of the Respondents-Plaintiffs
On the issue of standing, counsel for the appli
cant has argued that the only legal relationship
between the respondent CUPE and the nine
individuals is governed exclusively by a collective
agreement and therefore is subject to the provi
sions of the Canada Labour Code, specifically
sections 56 and 57. There is an arbitration proce
dure through which the respondents-plaintiffs may
bring their labour grievances. Moreover, Courts
have repeatedly held that such provisions confer
exclusive jurisdiction on the arbitrators to resolve
disputes arising out of collective agreements (See
St. Anne Nackawic Pulp & Paper Co. v. Canadian
Paper Workers Union, Local 219, [1986] 1 S.C.R.
704.)
This issue arises because the evidence contained
in the affidavits filed in support of the CUPE
application discloses that there will be considerable
layoffs, the named individuals will lose their jobs,
CUPE will suffer financially because of union dues
to which it has a right. There is no doubt in my
mind that these assertions may well be valid. But
with respect to CUPE's allegation concerning its
right to union dues, it is a matter that emanates
from a collective agreement and their recourse is
exclusively governed by labour arbitration. Coun
sel for the respondent conceded during oral argu
ment that CUPE lacks the requisite standing.
I turn now to the question of whether the named
individuals have the standing to bring the action in
their name. It was argued that the individuals
cannot claim public interest; that they have no
private right to an injunction.
Although the employment of the individual
respondents-plaintiffs is bound by a collective
agreement and any labour grievances should go to
an arbitration board, I am satisfied that these
individuals are wearing two hats and as citizens
from various areas of the country are entitled to
bring this application since they have an interest in
the loss of programming. I make this finding on
the basis of Finlay v. Canada (Minister of
Finance), [1986] 2 S.C.R. 607, wherein the Court
developed the following tripartite test: whether the
issues are serious, whether the respondent has a
genuine interest in them and if the respondent
were denied standing there would be no other way
in which the issues could be brought before a
court. The problems raised in the present case are
serious and I find that the individuals have a
genuine interest. Each of the individuals live in the
affected areas; one has resided in Sydney, Nova
Scotia for as long as 38 years. The individuals
have not waived their rights as concerned citizens
by virtue of signing a collective agreement with the
CBC. Finally, if the respondents-plaintiffs were
denied standing there would be no other way in
which the issues could be brought before a court.
B. Jurisdiction
The CBC submits that this Court lacks the
jurisdiction to grant the remedy claimed since the
power to enforce the CBC mandate is governed by
the CRTC.
The respondents-plaintiffs, on the other hand,
base their action on section 23 of the Federal
Court Act, R.S.C., 1985, c. F-7, which reads as
follows:
23. Except to the extent that jurisdiction has been otherwise
specially assigned, the Trial Division has concurrent original
jurisdiction, between subject and subject as well as otherwise,
in all cases in which a claim for relief is made or a remedy is
sought under an Act of Parliament or otherwise in relation to
any matter coming within any of the following classes of
subjects, namely,
(a) bills of exchange and promissory notes, where the Crown
is a party to the proceedings;
(b) aeronautics; and
(c) works and undertakings connecting a province with any
other province or extending beyond the limits of a province.
It is not disputed that the action is founded on
an Act of Parliament or that it is in relation to a
work and "undertaking[] connecting [any] prov
ince". What is contentious is whether the power to
review the CBC has been delegated to the CRTC
within the meaning of the words "otherwise spe
cially assigned". Accordingly, it is necessary to
examine the relevant provisions of the Broadcast
ing Act.
Section 3 of the Act sets out the broadcasting
policy for Canada, which includes objectives such
as, providing a national broadcasting service in
English and French, extending it to all parts of
Canada, as public funds become available, con
tributing to the development of national unity and
providing for a continuing expression of Canadian
identity. It is also specified in section 3 that the
"objectives of the broadcasting policy ... can best
be achieved by providing for the regulation and
supervision ... by a single independent public
authority". This provision contemplates the
CRTC.
The objectives of the CRTC are underlined in
section 5 of the Act as follows: to "regulate and
supervise all aspects of the Canadian broadcasting
system with a view to implementing the broadcast
ing policy enunciated in section 3". In furtherance
of these objectives, the CRTC is given the power
to prescribe conditions, make regulations appli
cable to all persons holding broadcasting licences
and to revoke broadcasting licences; but the
CRTC cannot revoke a broadcasting licence held
by the CBC (paragraph 6(1)(c)).
Section 8 of the Act provides that the Executive
Committee of the CRTC and the Corporation, at
the latter's request, are to consult concerning con
ditions that they propose to attach to the licences
issued; if the Corporation is satisfied that they are
going to be impeded, it may refer the particular
condition to the Minister for consideration. The
Minister may give a directive pursuant to these
conditions, with which the Executive Committee
must comply. Once it has been given, it must be
published in the Canada Gazette and brought
before Parliament within 15 days.
The CRTC has the discretion to hold public
hearings with respect to the issue of a broadcast
licence, where it has under consideration the revo
cation or suspension of a broadcasting licence or
where it is satisfied that it would be in the public
interest to do so (section 10). The CRTC can
suspend or revoke the licence if the holder con
sents; if the holder does not comply or consent, it
will hold hearings to determine what course of
action should be followed (section 15). After the
hearing, the Minister receives a copy of the report
and it must be laid before Parliament within 15
days (subsection 15(4)). Section 17 grants the
right to appeal a CRTC decision to the Federal
Court of Appeal on a question of law or
jurisdiction.
Based on the above powers of the CRTC, coun
sel for the applicant submits that the power to
review has been "otherwise specially assigned"
within the meaning of section 23 of the Federal
Court Act. He has cited a number of authorities
which suggest that where an administrative tri
bunal is vested with the authority to make findings
of fact, law and policy as well as to enforce a
remedy, the Courts are without jurisdiction to
entertain the proceeding.
In Pringle et al. v. Fraser, [1972] S.C.R. 821,
Laskin J. (as he then was) held that the Supreme
Court of Ontario did not have jurisdiction to enter
tain certiorari proceedings to quash a deportation
order made under the Immigration Act. Emphasis
was placed on section 22 of that Act, which con
ferred upon that Board the sole and exclusive
jurisdiction to hear and determine all questions of
fact or law that may arise in relation to the
making of an order of deportation or the making
of an application for the admission to Canada of a
relative pursuant to regulations made under the
Immigration Act. As Laskin J. stated, at page 826:
I am satisfied that in the context of the overall scheme for the
administration of immigration policy the words in s. 22 ("sole
and exclusive jurisdiction to hear and determine all questions of
fact or law, including questions of jurisdiction") are adequate
not only to endow the Board with the stated authority but to
exclude any other court or tribunal from entertaining any type
of proceedings, be they by way of certiorari or otherwise in
relation to the matters so confided exclusively to the Board.
The fact that the result of such an interpretation is to abolish
certiorari as a remedy for challengeable deportation orders is
not a ground for refusing to give language its plain meaning.
And later, at page 827, he stated, that "The only
practical resolution is to recognize the exclusive
ness of the special procedure ordained by
Parliament".
In Grand Trunk Railway Co. v. McKay (1903),
34 S.C.R. 81, the Court found the Railway Com
mittee to have complete power to determine the
character and extent of the protection which
should be given to the public at railway crossings.
The decision was based on a section of the statute
which gave the Railway Committee the authority
to require or authorize a railway company to
protect streets or highways. The Court described
this as being full, complete and capable of being
made effective. Therefore, it was held that the
decision should be left to the Committee and not
to a Court proceeding.
In Kiist v. Canadian Pacific Railway Co.,
[ 1982] 1 F.C. 361 (C.A.) the Federal Court of
Appeal declined jurisdiction to try the issue of
whether the railways furnished adequate and suit
able accommodation for the carriage of grain for
the Board pursuant to section 262 of the Railway
Act. It held that the power had been otherwise
assigned to the Canadian Transport Commission.
Le Dain J. concluded that the impugned section of
the Railway Act contemplated questions of fact
and policy of the kind that should be determined
by the Commission.
The present case is distinguished from the above
cases; it was argued that the CRTC cannot enforce
its power vis-Ã -vis the CBC. It is agreed that the
CRTC has the power to review the CBC and to
order public hearings. It can also prescribe condi
tions of licencing based on the objectives of the
statute. However, this power is subject to consulta
tion with the CBC at the latter's request. The
CBC may also refer any provision to the Minister
for consideration, who may in turn give to the
Executive Committee of the CRTC a written
directive with which the Executive Committee
must comply.
Counsel for the CBC directed my attention to
certain jurisprudence which suggests that the
CRTC is vested with complete authority to super
vise the Canadian broadcasting system. In Nation
al Indian Brotherhood v. CTV Television Net
work, [1971] F.C. 127 (T.D.) where Kerr J.
dismissed an application for an injunction to
restrain the CTV from broadcasting a film, it was
held that Parliament did not intend to give juris
diction to the Federal Court to entertain this
matter, and the Court would effectively be exercis
ing the functions of regulation and supervision of
the Canadian broadcasting system that Parliament
has entrusted to the CRTC. He also cited Shus-
wap Cable Ltd v. Canada, [1987] 1 F.C. 505
(T.D.) where Muldoon J. held, at page 516, that
the "social, economic and cultural aspects of
broadcasting are firmly confided to the authority
of the CRTC".
Counsel for the respondents-plaintiffs argues
that the CRTC only has a power of review and it
cannot enforce its findings through a revocation or
a suspension of the CBC's licence and that this
situation creates a lacuna or vacuum. It is restrict
ed to making recommendations to the Minister.
This important distinction of authority to revoke
or suspend private broadcasting licences, under
lines the limited authority over the CBC. In most
cases where jurisdiction has been the issue, there
has been a specific grant of powers given to a
board along with the authority to enforce its find
ings. In the case at bar the respondents-plaintiffs
submit that the CRTC has no jurisdiction to direct
the CBC and because of this void the Federal
Court should exercise its jurisdiction of review
under section 23 of the Federal Court Act. The
CBC has a statutory mandate and it is in the
public interest to ensure that the established
broadcasting policy as directed to it is being ful
filled and the only efficient manner to achieve this
goal is through the courts.
In support of this proposition, counsel for the
respondents-plaintiffs refers me to a decision of
Martin J. in Federal Liberal Agency of Canada v.
CTV Television Network Ltd., [1989] 1 F.C. 319
(T.D.). On a motion to strike a statement of claim
for lack of jurisdiction, he dismissed the applica
tion on the basis that the broadcasters had a
statutory obligation to provide broadcasting time
pursuant to the Canada Election Act and the
CRTC or the Broadcast Arbitrator did not have
the authority to enforce it. Effectively, the CRTC
did not have the power to act as censor for such
advertising.
The respondents-plaintiffs also referred me to
Gendron v. Supply and Services Union of the
Public Service Alliance of Canada, Local 50057,
[1990] 1 S.C.R. 1298 wherein the Court held that
there was a duty placed on unions as exclusive
bargaining agents to represent fairly employees in
their units. Her Ladyship Madame Justice l'Heu-
reux-Dubé had the following to say [at page
1317]:
An overview of the Code puts the statutory duty of fair
representation in its proper context, that of a complete and
comprehensive scheme that both supplies the duty and provides
the necessary adjudicative machinery such that resort to the
common law is duplicative in any situation where the statute
applies. While not determinative in itself, this is in my view a
strong indication of Parliament's intention that the Code
occupy the whole field in terms of a determination of whether
or not a union has acted fairly.
In the present case, it is the respondents-plain
tiffs' submission that Parliament has failed to pro-
vide the CRTC with sufficient authority with
respect to the CBC and therefore its jurisdiction is
incomplete. He maintains that it is in the public
interest that all administrative decisions should be
subject to review and there is in this situation no
apparent control over the CBC or its administra
tion.
I am unable to accept this conclusion. Based on
an analysis of the Broadcasting Act, I find that it
does provide a power of review on issues of policy
and law and that this function has been delegated
to the CRTC. Though it lacks the power to enforce
its findings or to enforce the performance of condi
tions, over the CBC, their mechanism is exercised
by Ministerial control. Further, the Act specifical
ly states that the national broadcasting policy will
be carried out "as public funds become available".
These funds are allocated by the Executive branch,
and the CBC is accountable to it and to Parlia
ment for its spending pursuant to section 39.
Though the supervisory capacity over broadcasting
policy of the CRTC is outlined in section 3 of the
Broadcasting Act, it should be noted that para
graph 3(e) specifically limits the implementation
of policy "as public funds become available". This
allocation is directed by Parliament and as a
result, they obviously are aware that the imposi
tion of financial constraints will have the ultimate
result of affecting broadcast policy and the ability
of the CBC to carry out its mandate. This is a
further impediment to the position taken by the
respondents-plaintiffs; it behooves me to find any
power within the competence of the courts to
override the legislative function when it is acting
clearly within the scope of its authority. In the
words of Laskin J. (as he then was) this "special
procedure ordained by Parliament" should be
respected (See: Pringle et al. v. Fraser, supra,
page 462).
Accordingly, I have concluded that I do not
have any authority to entertain the issues raised.
In support of this conclusion, a brief reference to
Attorney General of Canada v. Inuit Tapirisat of
Canada et al., [1980] 2 S.C.R. 735 is warranted.
At pages 758-759. Estey J. wrote:
Where, however, the executive branch has been assigned a
function performable in the past by the Legislature itself and
where the res or subject matter is not an individual concern or a
right unique to the petitioner or appellant, different consider
ations may be thought to arise. The fact that the function has
been assigned as here to a tier of agencies (the CRTC in the
first instance and the Governor in Council in the second) does
not, in my view, alter the political science pathology of the case.
In such a circumstance the Court must fall back upon the basic
jurisdictional supervisory role and in so doing construe the
statute to determine whether the Governor in Council has
performed its functions within the boundary of the parliamen
tary grant and in accordance with the terms of the parliamen
tary mandate.
In light of the foregoing comment it is apparent
that the function of supervisory control over the
CBC has been appropriated to the Executive and
Parliament. It is more than evident that the exer
cise of this power is in accordance with the parlia
mentary prerogative to reserve unto itself the ulti
mate determination of broadcasting policy as it
relates to the CBC. Section 23 of the Federal
Court Act is to me quite clear. We are dealing in
this case with a power that has been "otherwise
specially assigned" and this Court does not have
the authority to review the matters raised.
Alternatively, the applicant's submission is that
even if this Court had jurisdiction to try this issue,
it does not have jurisdiction to grant the relief
claimed. The Federal Court has the jurisdiction to
grant declaratory or injunctive relief against any
federal board, commission or other tribunal under
section 18. It has been well settled that the CBC is
not a federal board, commission or other tribunal
as defined by section 2 of the Federal Court Act
(see: Canada Metal Co. Ltd. et al. v. Canadian
Broadcasting Corp. et al. (No. 2) (1975), 11 O.R.
(2d) 167 (C.A.); Wilcox v. Canadian Broadcast
ing Corp., [1980] 1 F.C. 326 (T.D.)). Therefore,
this Court does not have the competence under
section 18 to entertain the matter or to grant the
requested relief. However, if I did not find that the
powers were "otherwise specially assigned", this
Court would have the authority to grant injunctive
relief under section 44, where it deems just.
C. Reasonable Cause of Action
The applicants contend that the alleged restruc
turing does not violate the Broadcasting Act or
conditions of any of the CBC's broadcasting
licences. Even if the declaration disclosed a cause
of action, there is no provision in the Act which
confers enforceable rights upon the plaintiffs. I am
not convinced, at this stage in the proceedings,
that there has not been a violation of the Broad
casting Act, or that there exist no enforceable
rights under the Act.
The respondents-plaintiffs have raised a reason
able cause of action, one which cannot be decided
on a motion to strike pursuant to Rule 419(1)(a).
The issue is whether the CBC can implement the
restructuring without amending the Act. The dec
laration and affidavits disclose evidence too com
plex to be resolved on an interlocutory motion. It is
well established that the Court will dismiss an
action or strike a claim only when it is plain and
obvious or where it is satisfied beyond a reasonable
doubt that the case would not succeed. This onus
has not been met. Had I determined that this
Court has jurisdiction, I would refuse to strike the
statement of claim on the grounds that it "dis-
closes no reasonable cause of action".
Conclusion
This motion brought by the applicant-defendant
to strike the statement of claim is granted on the
basis that the Federal Court does not have the
jurisdiction to try the matter.
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.