Judgments

Decision Information

Canadian Cable Television Assn v. American College Sports Collective of Canada, Inc. (C.A.)

Collection	Judgments
Date	1991-06-03
Report citation	[1991] 3 F.C. 626
File numbers	A-832-90
Subjects	Administrative Law Construction of Statutes Copyright

Decision Content

A-832-90

Canadian Cable Television Association — Asso ciation canadienne de télévision par câble (Applicant)

American College Sports Collective of Canada, Inc., Border Broadcasters' Collective, Canadian Broadcasters Retransmission Rights Agency Inc., Canadian Retransmission Collective, Canadian Retransmission Right Association, Composers, Authors and Publishers Association of Canada Limited, Copyright Collective of Canada, FWS Joint Sports Claimants, Major League Baseball Collective of Canada, Inc., and Performing Rights Organization of Canada Limited (Respondents)

INDEXED AS: CANADIAN CABLE TELEVISION ASSN V. AMERI- CAN COLLEGE SPORTS COLLECTIVE OF CANADA, INC. (CA.)

Court of Appeal, Mahoney, MacGuigan and Linden JJ.A.—Montréal, May 13, 14, 15, 16 and 17; Ottawa, June 3, 1991.

Judicial review — Applications to review — Application to set aside Copyright Board's decision imposing royalties for retransmission of distant television signals in Canada for breach of principles of natural justice — Dissenting member receiving information outside hearing process — Audi alteram partem principle not violated — Possibility of prejudice essen tial issue — Information received not adverse to applicant's position — Information not influencing majority — No "reli- ance" on information — Inconsequential error of law not ground for judicial reversal — No reasonable apprehension of bias — Dissenting member had no stake in outcome.

Copyright — Copyright Board imposing royalties for retransmission of distant television signals and adding interest factor to royalties payable under power to establish terms and conditions related to royalties under Copyright Act, s. 70.63(1)(a)(ii) — Board implicitly empowered to include inter est factor to compensate for late payment of royalties — Ss. 70.62 to 70.67 remedial, objects of which to establish regime for royalty payments for retransmissions after January 1, 1990 — Interest necessary to compensate for late payment of royal ties caused by delays in approval process — Explicit provision of right to interest not required.

Construction of statutes — Copyright Act, s. 70.63(1)(a)(ii) giving Copyright Board power to impose terms and conditions related to royalties — Board adding interest factor to royalties payable — Objects of ss. 70.62 to 70.67 to establish regime for royalty payments for retransmissions after January 1, 1990 — Interpretation Act, s. 12 requiring fair, large and liberal construction as best ensures attainment of objective — Powers of administrative tribunal may exist by necessary implication from wording of Act, structure and purpose — Parliament intending royalty regime to take effect January 1, 1990 regardless of when scheme established — Board discharging statutory mandate by including interest to compensate for late approval of tariffs.

This was an application to set aside, for failure to observe principles of natural justice, a decision of the Copyright Board imposing annual royalties for the retransmission of distant television signals in Canada. Alternatively, the applicant sought an order varying the statement of royalties to be paid by deleting the royalties referable to interest. The Copyright Act was amended in 1988 to provide for the payment of copyright royalties for the retransmission of distant radio and television broadcast signals. In 1989 statements of proposed royalties were filed with the Board. The applicant objected to those statements. After the close of the hearing, the dissenting Board member obtained certain public information as well as the opinions of CRTC staffers. None of this information was adverse to the applicant's position. Two Board members, but not the Chairman, were aware that he had obtained additional information, but were unaware of its content.

The applicant argued that the principle of audi alteram partem had been violated by the receipt of evidence outside the hearing process, evidence of which it had learned only acciden tally after the Board's decision and to which it had had no opportunity to respond. It submitted that the existence of actual prejudice was not essential to establish breach of the principle, and that a possibility of prejudice was sufficient. The applicant argued that it had, in any event, suffered actual prejudice, not by any adverse effect, but by being denied the opportunity to exploit in its favour the evidence received. The respondents' submission was that the information obtained was either already in the record, known to the parties or in the public domain; that it was in the applicant's favour; that the dissenting member's efforts did not influence and were not known to the majority; and that the principle did not apply to information which affects only a dissenting member of a tribunal.

Applicant's further submission was that the Board had violated the principle nemo judex in sua causa debet esse (no one may be a judge in his own cause), a rule as to the impartiality required of deciders of issues which forbids both actual bias and a reasonable apprehension of bias.

Acting under its power to establish terms and conditions related to the royalties it had set under Copyright Act, subpara- graph 70.63(1)(a)(ii), the Board added an interest factor to the royalties payable because the Act provided that the tariffs would take effect on January 1, 1990, but they were not approved until much later. The interest factor was not estab lished separately by the tariffs as interest payments, but was merged into the royalties paid. The Board applied the Bank of Canada rate so as not to penalize retransmitters, who were not responsible for the delay in certifying tariffs. The applicant argued that to award interest on royalties accrued prior to publication of any tariff exceeded the Board's powers, as the Act did not specifically empower it to compel the payment of interest by retransmitters. Since a requirement respecting inter est is a substantive right, it should be expressly provided for in the governing legislation.

Held, the application should be dismissed.

The principle of audi alteram partem had not been violated. Even if the dissenting member's actions could be attached to the entire Board, any error attributable to the Board would be inconsequential, and should not be a basis for judicial reversal. The Board acted fairly towards the applicant.

The question of the possibility of prejudice was the funda mental issue. There had to be a real possibility that the result was affected. As to the possibility of prejudice herein, much of the information received by the dissenting member was repeti tive of, or supplementary to, the hearings, and not a matter of denial of natural justice. The notion of adverse effect is central to audi alteram partem. Even the applicant alleged only the lack of a positive opportunity to exploit favourable information, not the absence of an occasion to respond to unfavourable information. None of the information received by the dissenting member had any influence on the decision of the majority. He was off on a frolic of his own. It must be shown that the Board "placed at least some reliance on the information". There was no such reliance herein. An inconsequential error of law, or even a number of them, which could have no effect on the outcome do not require this Court to set aside a decision under Federal Court Act, paragraph 28(1)(b).

There was no reasonable apprehension of bias. A reasonable apprehension of non-pecuniary bias must arise from "a connec tion with the case or with the parties". It must amount to an "interest in the subject-matter of the proceedings." It comes into play only when the tribunal member appears to have some stake in, or predisposition toward, a particular outcome of the adjudication. However unfortunate his mistake in seeking extra-hearing information, the dissenting member's motivation was pure and he had no stake in the outcome beyond the best possible decision.

The issue as to the award of interest on royalty payments relating to the transitional period is one of statutory interpreta tion of subparagraph 70.63(1)(a)(ii). The case law does not go

so far as to say that a right to interest must be provided for explicitly. Sections 70.62 through 70.67 are remedial legisla tion, the objects of which include the establishment of a regime for royalty payments for retransmissions after January 1, 1990. The Interpretation Act, section 12 requires that legislation be given such fair, large and liberal construction as best ensures the attainment of its objects. The powers of an administrative tribunal may exist by necessary implication from the wording of the Act, its structure and its purpose. Whatever is reasonably necessary for the proper discharge of a duty is impliedly authorized by it. Section 149 of the Canada-United States Free Trade Agreement Implementation Act indicates Parliament's manifest intention that the royalty scheme should take effect January 1, 1990, regardless of how much later the scheme might be established. It can only be supposed that it wanted to give the Board the right to make royalty recipients whole as of that day if it considered it appropriate. The Board deemed an interest factor necessary because the length of the hearings had prevented it from approving the tariffs until much later. It had included an interest factor to discharge its statutory mandate.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada-United States Free Trade Agreement Imple mentation Act, S.C. 1988, c. 65, ss. 65, 149.

Copyright Act, R.S.C., 1985, c. C-42, ss. 66 (as am. by R.S.C., 1985 (4th Supp.), c. 10, s. 12), 70.61 (as enacted by S.C. 1988, c. 65, s. 65), 70.63 (as enacted idem).

Federal Court Act, R.S.C., 1985, c. F-7, s. 28.

Interpretation Act, R.S.C., 1985, c. I-21, s. 12.

Radio Retransmission Tariff, Can. Gaz. Part I, Supp., Oct. 6, 1990, s. 14.

Television Retransmission Tariff, Can. Gaz. Part I, Supp., Oct. 6, 1990, s. 19.

CASES JUDICIALLY CONSIDERED

APPLIED:

R. v. Schiff et al., Ex parte Trustees of Ottawa Civic Hospital, [1970] 3 O.R. 476; (1970), 13 D.L.R. (3d) 304 (C.A.); Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105; (1980), 110 D.L.R. (3d) 311; [1980] 3 W.W.R. 125; 18 B.C.L.R. 124; 31 N.R. 214; IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; (1990), 73 O.R. (2d) 676 (note); 68 D.L.R. (4th) 524; 42 Admin. L.R. 1; 90 CLLC 14,007; 38 O.A.C. 321; Re Cardinal Insurance Co. and Minister of State (Finance) (1982), 138 D.L.R. (3d) 693; [1982] I.L.R. 1-1541; 44 N.R. 428 (F.C.A.); Canadian Union of Public Employees (Civic Employees' Union, Local 21) and Murray v. Regina (City) et al. (1989), 81 Sask. R. 16 (Q.B.); Hecla Mining Company of Canada v. Cominco Ltd. and Canada (Minister of Indian Affairs and Northern Development) (1988), 116 N.R. 44

(F.C.A.); Canadian Pacific Ltd. v. British Columbia Forest Products Ltd., [1981] 2 F.C. 745; (1980), 34 N.R. 209 (C.A.); Schaaf v. Minister of Employment and Immigration, [1984] 2 F.C. 334; [1984] 3 W.W.R. 1; (1984), 52 N.R. 54 (C.A.); Martineau v. Matsqui Insti tution Disciplinary Board, [1980] 1 S.C.R. 602; (1979), 106 D.L.R. (3d) 385; 50 C.C.C. (2d) 353; 13 C.R. (3d) 1; 15 C.R. (3d) 315; 30 N.R. 119; Bateman v. McKay et al., [1976] 4 W.W.R. 129 (Sask. Q.B.); Re Gooliah and Minister of Citizenship and Immigration (1967), 63 D.L.R. (2d) 224; (1967), 59 W.W.R. 705 (Man. C.A.); Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 1 S.C.R. 1722; (1989), 60 D.L.R. (4th) 682; 97 N.R. 15; Perform ing Rights Organization of Canada Ltd. v. Canadian Broadcasting Corporation (1986), 7 C.P.R. (3d) 433; 64 N.R. 330 (F.C.A.); Banca Nazionale del Lavoro of Canada Ltd. v. Lee-Shanok (1988), 88 CLLC 14,033; 87 N.R. 178 (F.C.A.).

DISTINGUISHED:

Spence v. Spencer and Prince Albert Board of Police Commissioners (1987), 53 Sask. R. 35; 25 Admin. L.R. 90 (C.A.); Yukon Conservation Society v. Yukon Territory Water Board and Cyprus Anvil Mining Corp. (1982), 45 N.R. 591 (F.C.T.D.); Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115.

CONSIDERED:

Pfizer Co. Ltd. v. Deputy Minister of National Revenue, [1977] 1 S.C.R. 456; (1975), 68 D.L.R. (3d) 9; 24 C.P.R. (2d) 195; 6 N.R. 440; Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353; Energy Probe v. Atomic Energy Control Board, [1985] 1 F.C. 563; (1984), 15 D.L.R. (4th) 48; 11 Admin. L.R. 287; 13 C.E.L.R. 162; 56 N.R. 135 (C.A.); WMI Waste Management of Canada Inc. v. Municipality of Metropolitan Toronto (1981), 34 O.R. (2d) 708; 24 L.C.R. 204; 23 R.P.R. 257 (H.C.); Northern & Central Gas Corp. Ltd. v. Kidd Creek Mines Ltd. (1988), 66 O.R. (2d) 11; 53 D.L.R. (4th) 123; 29 C.P.C. (2d) 257; 30 O.A.C. 146 (C.A.).

REFERRED TO:

Frome United Breweries Co. v. Bath Justices, [1926] A.C. 586 (H.L.); R. v. British Columbia Labour Rela tions Board, Ex parte International Union of Mine, Mill & Smelter Workers (1964), 45 D.L.R. (2d) 27 (B.C.C.A.); In re Anti-dumping Tribunal and re trans parent sheet glass, [1972] F.C. 1078; (1972), 30 D.L.R. (3d) 678 (T.D.); Liverpool Corporation v. Maiden (Arthur), Ltd., [1938] 4 All E.R. 200 (K.B.D.).

AUTHORS CITED

Canadian Radio-television and Telecommunications Commission. More Canadian Programming Choices, Ottawa, November 30, 1987.

COUNSEL:

Michael K. Eisen and Stephen G. Rawson for applicant Canadian Cable Television Associa tion.

Gilles M. Daigle for respondent Border Broadcasters' Collective.

David W. Kent for respondent Canadian Broadcasters Retransmission Rights Agency Inc.

Hank G. Intven for respondent Canadian Retransmission Collective.

Jacques R. Alleyn, Q.C. and Peter E. Robin- son for respondent Canadian Retransmission Right Association.

Y. A. George Hynna for respondents Compos ers, Authors and Publishers Association of Canada Limited and Performing Rights Organization of Canada Limited.

Glenn A. Hainey and Michael S. Koch for respondent Copyright Collective of Canada.

Daniel R. Bereskin, Q.C. and Greg A. Pia- setzki for respondent FWS Joint Sports Claimants.

Richard Storrey for respondent Major League Baseball Collective of Canada, Inc. J. Aidan O'Neill for Canadian Satellite Com munications Inc. and Cl Cablesystems. Mario Bouchard for Copyright Board.

SOLICITORS:

Morris/Rose/Ledgett, Toronto, for applicant Canadian Cable Television Association.

Gowling, Strathy & Henderson, Ottawa, for respondent Border Broadcasters' Collective. McMillan Binch, Toronto, for respondent Canadian Broadcasters Retransmission Rights Agency Inc.

McCarthy, Tétrault, Toronto, for respondent Canadian Retransmission Collective.

Canadian Broadcasting Corporation, Ottawa, for respondent Canadian Retransmission Right Association.

Gowling, Strathy & Henderson, Ottawa, for respondents Composers, Authors and Publish ers Association of Canada Limited and Per forming Rights Organization of Canada Limited.

Smith, Lyons, Torrance, Stevenson & Mayer, Toronto, for respondent Copyright Collective of Canada.

Rogers, Bereskin & Parr, Toronto, for respondent FWS Joint Sports Claimants. Goodman & Goodman, Toronto, for respond ent Major League Baseball Collective of Canada, Inc.

Johnston & Buchan, Ottawa, for Canadian Satellite Communications Inc. and CI Cablesystems.

Legal Services, Copyright Board, Ottawa, for Copyright Board.

The following are the reasons for judgment rendered in English by

MACGUIGAN J.A.: This section 28 [Federal Court Act, R.S.C., 1985, c. F-7] application is brought by the applicant, a non-profit organization whose members include over 545 licensed opera tors of cable television systems across Canada, against a decision of October 2, 1990, by the Copyright Board ("the Board"). The tariffs imple menting the Board's decision were published in the Supplement to the Canada Gazette, Part I, Octo- ber 6, 1990, as the Television Retransmission Tariff and the Radio Retransmission Tariff.

The Board was established pursuant to section 66 of the Copyright Act ("the Act"), R.S.C., 1985, c. C-42 [as am. by R.S.C., 1985 (4th Supp.), c. 10, s. 12], a section which was proclaimed in force as of February 1, 1989. By subsection 66(3) the chairman of the Board is required to be a judge, either sitting or retired, of a superior, county or district court. The Chairman, Justice Donald Medhurst of the Alberta Court of Queen's

Bench, was a member of the Board panel in this case, as were Vice-Chairman Michel Hétu ("Hétu"), Dr. Judith Alexander ("Alexander"), and Michel Latraverse ("Latraverse"). Board Member Latraverse was the only dissenting member of the panel.

Following the Canada-United States Free Trade Agreement, the Act was amended by the Canada- United States Free Trade Agreement Implemen tation Act, S.C. 1988, c. 65, section 65 to provide for the payment of copyright royalties for the retransmission of distant radio and television broadcast signals. In June of 1989, pursuant to section 70.61 [as enacted by S.C. 1988, c. 65, s. 65] of the Act, eleven copyright collectives, acting as collecting bodies, filed with the Board state ments of proposed royalties for the retransmission of such signals. The applicant was one of the three parties to file objections to those statements with the Board. The Board hearing, which began on November 27, 1989, occupied 57 days. In its deci sion of October 2, 1990, the Board imposed annual royalties for the retransmission of distant televi sion signals in Canada of approximately $51 mil lion in each of 1990 and 1991. The "proxy" (prototype or analogue) which the Board adopted as a useful starting point for its computation of royalties was the wholesale price charged by the American satellite specialty service Arts & Enter tainment ("A & E"), with the proviso that the differences between A & E and distant broadcast signals had to be kept in mind (Decision, at pages 25-36):

B. THE LARGE SYSTEMS: 1 - THE VALUE OF DISTANT SIGNALS

Four comparisons were advanced during the hearing for valuing copyright works. Three of them are based on the economic value of services similar to those provided on distant signals or of benefits which have been lost through the use of distant signals; the last establishes a direct comparison with conditions in the United States. They are listed and reviewed as follows:

(i) the value of comparable services

(ii) the value of displaced programming

(iii) the value of lost licence fees

(iv) comparison with the U.S. regime

(i) The Value of Comparable Services

The Board is charged with setting a price for distant signals; the price of a similar good in another market could provide useful information. If that analogous market were a competi tive market, the price could be taken as a proxy for the value of distant signals.

CCC [Copyright Collective of Canada] claimed that the rates charged by CANCOM [Canadian Satellite Communications Inc.], the resale carrier, were a measure of the benefit of distant signals to cable systems. The price for the first distant signal delivered by CANCOM is as high as $1.70.. .

MLB [Major League Baseball Collective of Canada, Inc.] proposed the U.S. sports service, ESPN, as a proxy for the sports programming on distant signals, and specifically, for baseball programming.

CRC [Canadian Retransmission Collective] collected data in 1989 on the monthly wholesale rates charged to Canadian cable systems for specialty services. Prices ranged from highs of $1.05 and 88¢ for the Réseau des sports (RDS) and The Sports Network (TSN) to lows of 8¢ for MuchMusic and nothing for Vision TV. The unweighted average of these fees was 34¢. Both CCC and CRC claimed that among the services listed, YTV and Arts and Entertainment Network (A & E) are those whose content most resembles that of distant signals. It was argued that their wholesale rates of 31¢ and 250 respectively should be treated as a measure of the minimum value of distant signals. The rate for A & E is a market price, and that for YTV is regulated; hence, the price of A & E might be a better proxy for the value of distant signals.

A functioning market is only one requirement for a service to be a good proxy for a comparable service. A & E has a price that is determined in a functioning market, but it suffers from other deficiencies as a proxy.

(ii) The Value of Displaced Programming

CRC proposed the value of programming services displaced by programs on distant signals as a measure of the harm to the collecting bodies. CRC estimated that the presence of distant signals prevents the creation of at least one more national broadcast service.

(iii) The Value of Lost Licence Fees

CRC also suggested that the value of a program is reduced with each opportunity to watch it. As already discussed, no harm results to copyright owners where programs are simul taneously substituted, but other duplication may reduce licence fees and even prevent an additional sale. CRC used a figure of $4,000 per broadcast hour as a conservative estimate of that harm.

(iv) Comparison with the U.S. Regime

The projected retransmission royalties in the United States for 1990 are in the order of U.S. $200 million. CCTA [Canadian Cable Television Association, the applicant herein] proposed the "rule of ten": given that the U.S. population is approxi mately ten times that of Canada, the royalties in Canada should be ten per cent of those generated in the United States. This is about Can. $24 million.

The royalties set by the Board apply only to retransmitters in Canada, although they are paid to copyright owners in other countries. Inter-country comparisons of any kind are fraught with difficulties: industry structure, relative prices, income levels and cultures are different. At least four quantifiable differences exist between the markets in the two countries.

(v) The Board's Conclusions

The Board concludes that the comparable services approach is sound and that the wholesale price charged for A & E is a useful starting point, so long as the differences between A & E and distant signals are recognized.

Programs on distant signals are simultaneously substituted while those on A & E are not; accordingly, the Board considers that the value of a distant signal should be discounted by 20 per cent.

The market in which a signal is distant calls for different cost recovery considerations than the subscription market of special ty services. It follows that the distant signal seller would be prepared to accept a lower price for the product in that market.

The level of penetration of distant signals is higher than that of A & E. To achieve the same level of penetration, A & E's price would have to be lower.

Distant signals are packaged in many combinations and this may have an impact on their value. Even if the price of A & E is an appropriate proxy for the price of a first distant signal, it may be too high for one of many signals in the same package.

Considering all the differences, the Board finds that an average price of I5¢ per distant signal is reasonable.

The statutory authority on which the Board proceeded in making its decisions is contained in section 70.63 [as enacted by S.C. 1988, c. 65, s. 65] of the Act, which reads as follows:

70.63 (1) On the conclusion of its consideration of the statements of royalties, the Board shall

(a) establish, having regard amongst others to the criteria established under subsection (4),

(i) a manner of determining the amount of the royalties to be paid by each class of retransmitter, and

(ii) such terms and conditions related to those royalties as the Board considers appropriate;

(b) determine what portion of the royalties referred to in paragraph (a) is to be paid to each collecting body;

(d) certify the statements as the approved statements, whereupon those statements become for the purposes of this Act the approved statements.

(2) For greater certainty, neither the Board, in establishing a manner of determining royalties under paragraph (1)(a) or in apportioning them under paragraph (1)(b), nor the Governor in Council, in varying any such manner under section 70.67, may discriminate between copyright owners on the ground of their nationality or residence.

(3) The Board shall cause the approved statements to be published in the Canada Gazette as soon as practicable and send a copy of each approved statement, together with reasons for the Board's decision, to each collecting body and to any person who filed an objection under section 70.62.

(4) The Governor in Council may make regulations estab lishing criteria to which the Board must have regard in estab lishing under paragraph (1)(a) a manner of determining royal ties that are fair and equitable.'

The applicant, which, as the Board's reasons for decision indicate, had proposed the fourth com parison for valuing copyright works, viz., compari son with the U.S. regime, sought to set aside the Board's decision for failure to observe principles of natural justice. In the alternative, the applicant sought an order varying the statement of royalties to be paid for the retransmission of distant televi sion and radio signals in Canada during 1990 and 1991 by eliminating section 19 of the Television Retransmission Tariff, section 14 of the Radio Retransmission Tariff, and any related liability, thereby deleting the royalties referable to interest accrued prior to publication of the tariff.

It was common ground that the Board is required to act in a quasi-judicial manner and is therefore subject to the full requirements of natural justice.

No such regulations have been made by the Governor in Council.

It was also common ground that, subsequent to the close of the Board hearings, Board member Latraverse had attempted to obtain information concerning Canadian and U.S. specialty services from staff members of the Canadian Radio-televi sion and Telecommunications Commission ("CRTC"), and had made use of some of the material so obtained. On August 15, 1990, Latraverse met, at his request, with CRTC staff members Wayne Charman ("Charman"), Janet Yale ("Yale"), and Randolph Hutson ("Hutson") to obtain information and documents about spe cialty services. Each of the four parties to that meeting swore an affidavit, those by the three CRTC staff members being submitted by the applicant; all of the affidavits were in agreement on all essential points. In addition, Ms. Yale was cross-examined on her affidavit.

At the meeting of August 15, 1990, Charman handed Latraverse a copy of the CRTC publica tion of November 30, 1987, More Canadian Pro gramming Choices ("Programming Choices"). There were also three telephone conversations after the meeting between Charman and Latraverse by way of follow-up to matters raised at the meeting, and Latraverse subsequently received a chart indicating the rates paid in the United States for specialty services.

All of the evidence was to the effect that only three issues were canvassed in these CRTC con versations: (1) specialty services in Canada; (2) specialty services in the United States; and (3) the use of specialty services as a proxy. Latraverse advised Board members Hétu and Alexander of the fact that he had obtained these documents. He did not so advise Chairman Medhurst, who might have been expected to take a dim view of this way of proceeding.

In addition to these conversations and docu ments, Latraverse also independently gathered more complete statistics on the cable industry than were available from the exhibits. He also referred in his dissenting reasons to the fact that he had "been able to determine that a very substantial percentage of [A & E's] programming is repeated several times during the same month" and that

"this information was not established in evidence" (Decision, at page 112). Since this is a fact obvious to any casual reader of the A & E monthly pro gramming guide, and certainly to every subscriber to the service, I cannot attach any legal signifi cance to Latraverse's use of it. Latraverse also stated that "Another percentage of its program ming, also not established in evidence, is `blacked- out' because the Canadian broadcast rights could not be cleared by A & E" (ibid). I also cannot attach legal significance to the fact it was not established in evidence how much of its program ming was blacked-out, since the absence of evi dence establishes no more one way than the other.

Finally, while CCTA's [Canadian Cable Televi sion Association's] panel of cable television opera tors was testifying, Mr. Latraverse placed a tele phone call to his broker to ask the broker about certain evidence that had been given by panel members. He then used the financial information that he apparently obtained from his broker to question two of the panelists. During the question ing, Mr. Latraverse directed the following com ments to Mr. Linton of Rogers Cable TV:

a) "You kept mentioning that bank loans total $37 million on the Consolidated Balance Sheet which is peanuts [for Rogers Communications]".

b) "What I want to emphasize is: Looking at your numbers and at how sharp and remarkable an operator and how well you take care of your own affairs, it is very difficult for me to start crying for Rogers Communications because of its bank debt load".

c) "You just mentioned that you lost $25 million on the Home Shopping Channel. This is no big deal to [Rogers Communications]".

d) "Maybe you [either Rogers Communications or Mr. Linton] are a super businessman, but there is something mysterious in your approach". [Transcript, v. 45, February 22, 1990, at pages 7815-7838.]

In my view, the use of privately obtained infor mation to make such obvious comments is too

trivial for serious consideration, 2 and I do not propose to deal with it further. However, the natu ral justice issues must be faced with respect to the other incidents.

The common law embraces two principles in its concept of natural justice, both usually expressed in Latin phraseology: audi alteram partem (hear the other side), which means that parties must be made aware of the case being made against them and given an opportunity to answer it; and nemo judex in sua causa debet esse (no one may be a judge in his/her own cause), a rule as to the impartiality required of deciders of issues which forbids both actual bias and a reasonable appre hension of bias. The applicant in this case invoked both principles, which I shall accordingly consider in turn.

It was alleged by the applicant that Latraverse and the Board violated the principle of audi alteram partem by receiving evidence outside the hearing process, evidence of which it learned only acciden tally after the Board's decision through a conversa tion between one of its officers and Charman, and to which it had therefore no opportunity to respond. In my opinion, despite his excellent motive of attempting better to equip himself to decide the case, Latraverse's seeking information outside the hearing process was a serious mistake of judgment which could certainly have had the effect of invalidating the Board's decision for lack of fairness. If it did not in this instance entail that consequence, it could only be as a result of adven titious circumstances, as urged by the respondents.

The respondents argued: (1) that the informa tion Latraverse obtained was either already in the record, known to the parties or in the public domain; (2) that it was in fact in the applicant's favour, not to its detriment; (3) that Latraverse's

2 It was also apparently disclosed at the hearing and no objection was taken at the time.

efforts did not influence and were not known to the majority; and (4) that the principle does not apply to information which affects only a dissenting member of a tribunal. The first three allegations are primarily factual, the latter a matter of law.

As I have indicated, the evidence from the vari ous sources was congruent as to the matters dis cussed. First, with respect to specialty services in Canada, Latraverse brought with him to the meet ing a copy of a chart (introduced into evidence at the Board hearing by Peter Grant ("Grant"), an expert witness), as to the prices paid in Canada for specialty services. The data contained in the chart were drawn from CRTC policies and decisions, and Latraverse had questions as to the background and rationale, the carriage rules and the prices (Charman affidavit, paragraph 4(b), Yale affida vit, paragraph 6(a), Latraverse affidavit, para graphs 8 and 11). Much of this information was provided by the handing-over of a copy of Pro gramming Choices, a seminal CRTC policy state ment available to, and universally known by, par ticipants in the cable industry such as the five-hundred-odd members of the applicant. Although it was not formally introduced into evi dence before the Board, the document was used as a basis of questioning during the hearings and was referred to directly by Grant (Transcript, at pages 2626 and 2637).

With respect to specialty services in the United States, the evidence showed that Latraverse was especially interested in how the prices for these services were established (Charman affidavit, paragraphs 4(c) and 6, Hutson affidavit, para graphs 2, 3(a), and 3(b), Yale affidavit, paragraph 6(b), Latraverse affidavit, paragraphs 8, 12, 17, 18 and 19). The account which was given by Latraverse in his affidavit was fully supported by the others:

12. During the meeting, Mr. Charman, commenting on the second object of my approach, i.e. whether there were any CRTC decisions or policies relating to the price paid by Canadian cable operators for U.S. specialty signals, stated that

the CRTC is not involved in the determination of those rates. He offered to verify for me whether any other available docu mentation existed in this regard.

19. The last conversation took place on 21 or 22 August, 1990. Mr. Charman confirmed that he had not found any published documentation on the price paid by Canadian cable operators for U.S. specialty signals, the information being provided by cable companies on a "lump sum" basis rather than for individual services. He also stated that such information was provided to Statistics Canada on a confidential basis. Mr. Charman offered to fax me a chart, excerpted from the 30 April, 1990 issue of Cable TV Programming, an American newsletter which is available to the public at the CRTC library. The chart indicates the rates paid in the United States for specialty services. I received this chart on the morning of 23 August, 1990; it is attached as Exhibit "C" to this affidavit.

The upshot was that the only new information obtained by Latraverse on this subject was the chart referred to as Exhibit C. The chart was largely irrelevant to the issues before the Board. The little that was relevant was duplicative of information already presented in the Board hear ings, particularly the 11-cent a customer a month basic cable network fee for 1989 for A & E in the United States, a figure which was cited by the applicant itself to the Board, and was also referred to by a witness (Kain examination, March 19, 1990, at pages 9256-9257).

With respect to the use of specialty services as a proxy, Charman refused to express an opinion (affidavit, paragraph 4(d)), whereas both Hutson (affidavit, paragraphs 4(c) and 4(d)) and Yale (affidavit, paragraph 6(c)) expressed negative opinions. Ms. Yale told him that "the prices for specialty services would not be a good proxy in that regard since they were established for a dif ferent purpose than copyright considerations." Hutson's expressed view was that making use of the prices charged for U.S. specialty services in either the United States or Canada "would be like comparing apples and oranges."

Latraverse possibly was influenced by these opinions, for he wrote in his dissent (Decision, at page 132):

My colleagues rely solely on the rate of an optional American service, A & E, as the unit of measure. It is a marginal service whose content is not typical; therefore it is not an appropriate benchmark for establishing the value of distant signals general ly retransmitted in Canada.

Nevertheless, his rejection of the majority's approach did not lead him to the standard pro posed by the applicant, but rather to an approach based on the equivalent costs of Canadian pro gramming which caused him to propose a global annual royalty for each of 1990 and 1991 which was some $36 million higher than that adopted by the majority.

Latraverse also plainly acknowledged the use of the additional statistics he obtained from Statistics Canada. In his dissenting reasons for decision he stated (Decision, at page 102):

One of the collectives, PROCAN-CAPAC, provided to us during the course of the hearing CRTC documentation on the costs of programming of the private television, pay television and cable industries. [PROCAN-CAPAC-TV-8]. To obtain more complete statistics on the cable industry, I obtained from Statistics Canada the required information for the years miss ing from the documentation provided. It should be noted that I ignored the figures for CBC/SRC in the figures for television: otherwise, costs as a percentage of revenues would have been considerably higher but would have skewed the statistics.

The applicant argued that Latraverse may well have obtained more extra-hearing information than he—or the others—explicitly acknowledged, but with respect to the meeting of August 15, 1990, that not only runs counter to the tenor of all of the affidavits, but also to the direct evidence of Ms. Yale on her cross-examination (Cross-Exami nation, April 29, 1991, at pages 7-8):

Q. Okay. Now in addition let me ask you, having gone through the three areas that you discussed [i.e., speciality services in Canada, speciality services in U.S., the use of speciality services as proxies], you say in paragraph five that you cannot remember, there are things you can't remember regarding the details of the discussion, and what I would like to ask you is, is it possible there was anything significant, any significant or substantial topic that was discussed in addition to the three you have enumerated there?

A. To the best of my knowledge those were the three identi fied things, were the things that we spent most of our time discussing.

Q. And—

A. And just to be complete, if there was anything else

significant, I think I would have remembered it.

To suppose that there was more would be an entirely gratuitous assumption.

The applicant also attempted to establish that Latraverse (and hence his extra-hearing knowl edge) influenced the deliberations of his col leagues, and in fact went so far at one point in oral argument as to argue actual bias. The first ground of this contention was his reference in paragraph 3 of his affidavit to participation in the decision:

3. J'ai participé à la décision de la Commission qui fait l'objet de la présente affaire.

The English translation provided with the affidavit reads, quite correctly, as follows:

3. 1 participated in the decision which is the object of these proceedings.

This assertion immediately follows (English trans lation) these first two statements:

1. 1 am a member of the Copyright Board ("the Board").

2. I have knowledge of the matters hereinafter deposed to.

In the context, therefore, I believe "participated" must be taken as meaning only an acknowledge ment of having "sat on" the matter, not as having, in some unstated way, worked with the majority to produce a partially collective result. In my opinion the sense of the original French text would be to the same effect.

It is true, as urged by the applicant, that Latraverse indicated a small measure of agree ment with his colleagues. As he put it (Decision, at page 98):

DISSENT OF MEMBER LATRAVERSE Preamble

I do not agree with the guiding principles adopted by my colleagues for establishing the global amount of royalties, nor do I agree with their analysis of or conclusions on the evidence, as expressed in part 3B of the majority decision, "The Royalties to be Paid for Television Retransmission; The Large Systems I; The Value of Distant Signals". In addition, I am of the opinion that the compilation claim should be recognized, in principle, with a nominal allocation.

The tariff formula and other parts of the decision were pre pared jointly by all members of the Board and I am completely satisfied with them, except as to the amounts themselves, and certain remarks that I make regarding compilation. [Emphasis added.]

Latraverse's agreement on the tariff formula, etc., amounted really to an agreement on the arithmeti cal correctness of the majority's conclusion in -the light of its hypotheses, with which he disagreed. On my reading there is no suggestion of any combining of effort in the production of the majority decision, certainly not on the aspect which is in issue before this Court. Finally, the applicant asserted (memorandum of fact and law, paragraph 31):

31. In his affidavit, Mr. Latraverse does not deny that he was influenced by or relied on the information and documents that he obtained from the CRTC. Neither does Mr. Latraverse deny that the other members of the Copyright Board were influenced by or relied on that information and those documents.

Latraverse himself probably was influenced by and relied on the information he had received outside the hearing process, but, while it was hardly his place to give evidence as to the majority's state of mind, his failure to advert to a matter on which he was not questioned (but might have been, on his affidavit) cannot be taken as the foundation for a conclusion even as to his view of the majority's knowledge, let alone as to theirs. In my opinion there is simply no basis for speculating that the members of the Board majority had any knowl edge whatsoever of the content of his information (and in the case of the Chairman, no knowledge that he had even made such extra-hearing enqui ries). If there was anything of which they were aware, it could only have been the two documents, Programming Choices and the chart.

What we have, then, amounts to this, viz., that the dissenting member of the Board received a report of which both he and the applicant might already have been made aware in the hearings, a chart the relevant part of which was referred to in the hearings, statistical information which appears to be of no particular significance, and two opin ions which influenced him in rejecting the majori- ty's approach and in that sense in the applicant's

favour, although he, ultimately, came to an even more negative opinion from the applicant's point of view. All of the information (except for the opinions) was public information. None of it, not even the opinions, was adverse to the applicant's position.

The applicant did not, in fact, argue that it was adversely affected by the extra-hearing evidence, but rather that, in dealing with a complaint based on evidence received outside the hearing process, a Court will not inquire into whether the evidence did work to the prejudice of one of the parties; it is sufficient if it might have done so. A court was said to be concerned, not with proof of actual prejudice, but rather with the possibility or the likelihood of prejudice in the eyes of reasonable persons.

The applicant further argued that it was in fact actually prejudiced in all of the circumstances, not by reason of any adverse effect, but rather by being denied the opportunity to exploit in its favour the evidence received. Thus it had no chance to rely on and further explore the opinion of two senior CRTC officials as to the inappropri- ateness of using the wholesale price paid for spe cialty services as a proxy for valuing the copyright component of distant broadcast signals.

These arguments necessitate a review of the case law.

A number of cases deal with aspects of the issue raised in the case at bar. In R. v. Schiff et al., Ex parte Trustees of Ottawa Civic Hospital, [1970] 3 O.R. 476 (C.A.), where a board, for purposes of an arbitration award, without notice to the parties, relied upon material researched by itself and not derived directly from the parties to the arbitration, Aylesworth J.A. said for the Court at pages 479-480:

Finally, and as an additional ground for refusal of the remedy sought, it is abundantly apparent that the material complained of and to which the board of its own motion, as it were, resorted, was material from publicly known government sources, and entirely supplemental in its nature and kind to the very material the parties themselves supplied to the board. The

board complained of the fragmentary nature of the material supplied by the parties which was in the nature of statistics, collective bargaining agreements with other hospitals and the like, and it was natural that the board should look to such further material, and should be expected to look to it in view of that expressed dissatisfaction made known to the parties and in view of the board's intention expressed to them that it was going to seek further data of its own volition. Having regard to the highly informal method of procedure adopted by the parties in the hearing before the board of arbitration and, as I have said, to the nature of the material and the kind of presentation made with respect to that material as well as to the nature of the public material resorted to by the board, we fail to perceive any failure to afford natural justice to the trustees in what the board did in that respect.

Perhaps also it is desirable, although unnecessary, to add to what has been said that, upon the peculiar facts of this case, what the board did with respect to getting the kind of material it did get after the hearing, and with respect to the use to which the board put it, really was very much akin to what frequently is resorted to in the regular Courts of law wherein those Courts take judicial notice of well-known public facts, knowledge and information. We think what has already been said illustrates that similarity and demonstrates that in fact there was no denial of natural justice.

It therefore appears that a board's referring to material from publicly known government sources, and entirely supplemental in its nature and kind to the very material the parties themselves applied to the board, will not of itself violate the principles of natural justice.

In Canadian Pacific Ltd. v. British Columbia Forest Products Ltd., [1981] 2 F.C. 745 (C.A.), where the Canadian Transport Commission had failed to give an opportunity to respond to evidence obtained by it after the close of the hearing, this Court said (at page 757):

Under subsection 23(4) of the National Transportation Act, it is essential that there be a hearing before the Commission may find that a "rate" is prejudicial to the public interest. Such a hearing, in our view, would require that at least the minimum elements of natural justice in respect of the right to be heard must be observed. Because of the failure to give the appellants an opportunity to respond to the results of the Commission's post-hearing investigation into the Duncan Bay diversion, these minimum requirements were not observed. Accordingly, not only was natural justice denied, but the statutory mandate to proceed by way of a hearing was not complied with. The consequence is that the decision of the Commission is invalid.

From this last-noted material fact it would appear that a tribunal must have relied on the evidence it received subsequent to the hearing.

The authorities most favourable to the applicant are Pfizer Co. Ltd. v. Deputy Minister of National Revenue, [1977] 1 S.C.R. 456 and Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105. In Pfizer, Pigeon J. said shortly for the Court (at page 463): "It is clearly contrary to those rules [the rules of natural jus tice] to rely on information obtained after the hearing was completed without disclosing it to the - parties and giving them an opportunity to meet it." In Kane, a case involving a disciplinary suspension of a university professor, the issue was much more fully canvassed. The university president, who had initially imposed the suspension, attended the appeal hearing as a member of the Board of Governors, and provided additional information to the board in response to questions after the close of the hearing, although he did not participate in deliberations or vote on the decision. The board affirmed the suspension.

Dickson J. (as he then was), after enunciating the principle that "[a] high standard of justice is required when the right to continue in one's profes sion or employment is at stake" (at page 1113), went on to state (at pages 1113-1116):

5. It is a cardinal principle of our law that, unless expressly or by necessary implication, empowered to act ex parte, an appellante [sic] authority must not hold private interviews with witnesses ... or, a fortiori, hear evidence in the absence of a party whose conduct is impugned and under scrutiny. Such party must, in the words of Lord Denning in Kanda v. Govern ment of the Federation of Malaya ([1962] A.C. 322), at p. 337, " ... know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them .... Whoever is to adjudicate must not hear evidence or receive representations from one side behind the back of the other." ...

6. The court will not inquire whether the evidence did work to the prejudice of one of the parties; it is sufficient if it might have done so. Kanda v. Government of the Federation of Malaya, supra, at p. 337. In the case at bar, the Court cannot conclude that there was no possibility of prejudice as we have no knowledge of what evidence was, in fact, given by President Kenny following the dinner adjournment .... We are not here concerned with proof of actual prejudice, but rather with the possibility or the likelihood of prejudice in the eyes of reason able persons.

It seems clear that the first assertion in point 6 in the above quotation cannot be given its full extension, and that the two parts of the first sentence are intended to be read together. A court will not inquire whether the evidence did work to the prejudice of one of the parties when it might have done so. Or, put another way, it will inquire whether the evidence might have worked to the prejudice of one of the parties. A showing either of actual prejudice or of the possibility of prejudice is sufficient to constitute a violation of audi alteram partem. That seems indeed to be the basis on which the Court acted in Kane: "[i]n the case at bar, the Court cannot conclude that there was no possibility of prejudice as we have no knowledge of what evidence was, in fact, given by President Kenny." As Ritchie J., in dissent, emphasized in analyzing the facts, the appellant considered that the facts as given in the President's statement "could be construed adversely to him and he had no opportunity to answer" (at page 1121, emphasis added).

The notion of adverse effect is in fact central to audi alteram partem. In the words of Gonthier J. for the majority in IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, at page 339:

Since its earliest development, the essence of the audi alteram partem rule has been to give the parties a "fair opportunity of answering the case against [them]": Evans, de Smith's Judicial Review of Administrative Action, [4th ed. 1980], supra at p. 158. It is true that on factual matters the parties must be given a "fair opportunity ... for correcting or contradicting any relevant statement prejudicial to their view": Board of Education v. Rice, [1911] A.C. 179, at p. 182; see also Local Government Board v. Arlidge, [1915] A.C. 120, at pp. 133 and 141, and Kane v. Board of Governors of the University of British Columbia, supra, at p. 1113. [Emphasis added.]

Certainly, this Court in Re Cardinal Insurance Co. and Minister of State (Finance) (1982), 138 D.L.R. (3d) 693 saw prejudicial effect on a party as essential. In that case the Minister had held a meeting, in the absence of an insurance company, with a reinsuring company in an effort to obtain a settlement. Immediately after quoting Dickson J.'s

fifth point from Kane, supra, Urie J.A. wrote for the Court at pages 706-707:

Certainly there can be no quarrel with that proposition but, in my opinion, there was no breach thereof by the Minister in this case. No evidence was taken nor was anything done at the meeting which prejudicially affected Cardinal. As has been stated, what was done was an endeavour to persuade Union to honour its treaties or to make a settlement with Cardinal which would preclude the necessity for action by the Minister. He had already heard the evidence and representations of all con cerned. What Union said at the meeting was, as far as the record shows, merely a repetition of what it had said before. I do not think that his failure to include Cardinal in the settle ment discussions with Union ought, in the circumstances, to vitiate the whole proceeding.

Unlike the Tariff Board in Pfizer Co. Ltd. v. Deputy Minis ter of National Revenue for Customs & Excise (1975), 68 D.L.R. (3d) 9, [1977] S.C.R. 456, 24 C.P.R. (2d) 195, where the board referred to two texts in its decision which were not put in evidence or referred to at the hearing before the board, no evidence not known to Cardinal was elicited in this case.

The same comment applies in respect of R. v. Deputy Industrial Inquiries Com'r, Ex p. Jones, [1962] 2 Q.B. 677, and Kanda v. Government of Federation of Malaya, [1962] 2 A.C. 322, in both of which evidence was received by the tribunal which was prejudicial to the person concerned, without their being made aware of it and being given an opportunity to respond. If any new evidence was heard by the Minister at the February 16th meeting, and it does not appear that there was, it was not predjucial to Cardinal. In fact the opposite is true. The efforts of the Minister and his officials were directed to attempting to negotiate a settlement. An offer of settlement was in fact obtained and was conveyed to Cardinal and rejected by it. Such efforts cannot be characterized as prejudicial.

Hence the Court found no violation of audi alteram partem.

A Saskatchewan court seems to have come to a similar interpretation of Kane: Canadian Union of Public Employees (Civic Employees' Union, Local 21) and Murray v. Regina (City) et al. (1989), 81 Sask. R. 16 (Q.B.). In that case Armstrong J. held (at page 21):

In my view the improperly received evidence might well have prejudiced Murray in this case. In fact if the opinion of Dr. Abdulla means what the applicants think it means (and I do not know that it does) the Tribunal must have been influenced by the material improperly before it, to decide as it did.

That was also the line taken by this Court in Hecla Mining Company of Canada v. Cominco Ltd. and Canada (Minister of Indian Affairs and Northern

Development) (1988), 116 N.R. 44, where Hugess- en J.A. wrote (at page 45):

We did require submissions from the respondents on the applicant's allegation that the Minister had failed to follow the rules of natural justice. We find that allegation to be substan tiated. The record shows that, after the parties had completed their submissions, the Minister received a letter from the Mining Recorder which contained a number of assertions of fact and opinions which were incorporated by the Minister into his decision almost verbatim. That letter was never com municated to the parties prior to the decision. It was largely unfavourable to the applicant's pretentions.

In the circumstances, following Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643, the Court refused to try to conclude that the ministerial decision might in any event have been to the same effect, and accordingly struck it down.

In my opinion, this review of the case law indicates the fallacy of the applicant's argument. Contrary to its contention that a court will not inquire into the question of prejudice, all of the authorities which focus on the matter show that the question of the possibility of prejudice is the fundamental issue: Kane, Consolidated-Bathurst, Cardinal Insurance, Civic Employees' Union, and Hecla Mining.

If the possibility of prejudice must be looked to, what, then, do the facts show in the case at bar? Much of the information Latraverse received was repetitive of, or supplementary to, the hearings, and so, as in Schiff, not a matter of denial of natural justice. Even the applicant alleged only the lack of a positive opportunity to exploit favourable information, not the absence of an occasion to respond to unfavourable information. The authori ties, moreover, have taken "prejudicial" in the sense of "adverse effect".

The largest factor, however, militating against the applicant's argument is that there is not a shred of evidence that any of the information received by Latraverse had any influence whatso ever on the Board's decision, that is to say, on the decision of the Board majority. Two of the Board majority appear to have been aware that he had obtained some additional information, but not of

its content. There is not a single reference in the Board's decision, direct or indirect, to any extra- hearing evidence. Latraverse simply was off on a frolic of his own, which seems not to have im pinged at all on the minds of the majority.

Not only is there no case law which holds that the separate activities of a dissenting Board member can, without more, taint the deliberations of the majority, but I believe the Canadian Pacific case in this Court stands for the proposition that an applicant must show that the Board "placed at least some reliance on the information" in question (at page 757). Here there is no evidence at all of such reliance. Indeed, quite the contrary.

If a final word needs to be said, let it be that an inconsequential error of law, or even a number of them, which could have no effect on the outcome do not require this Court to set aside a decision under paragraph 28(1)(b) of the Federal Court Act. In Schaaf v. Minister of Employment and Immigration, [1984] 2 F.C. 334, at page 342, Hugessen J.A., after setting out the text of subsec tion 28(1), commented as follows:

In my view, nothing in the words used makes them other than attributive of jurisdiction. They create the power in the Court to set aside decisions which offend in one of the stated ways but do not impose a duty to do so in every case.

This appears also, I would suggest, from the wording of section 52, which describes the dispositions which are open to the Court on a section 28 application. The opening words are: "The Court of Appeal may...." They are clearly permissive and nowhere is there a suggestion that the Court must act whenever it finds an error of law.

This is not to say that the Court is entitled to decline to exercise the jurisdiction which is given to it by sections 28 and 52, but simply that there is nothing in the language of the statute obliging the Court to grant the remedy sought where it is inappropriate to do so. While it can no doubt be argued that the statute creates certain rights for the litigant, it does so by granting powers to the Court and the latter must remain the master of whether or not they are to be exercised in any particular case.

In my view, the Board made no error of law by infringing the principle of audi alteram partem in

this case, but if, hypothetically, the actions of Latraverse could somehow be attached to the whole of the Board, I think any error attributable to the Board would be inconsequential, a mere technical breach, and should not be a basis for judicial reversal. The authorities have all required a real possibility that the result was affected.

As it was put by Dickson J. (as he then was) in Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, at page 631:

8. In the final analysis, the simple question to be answered is this: Did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved? It seems to me that this is the underlying question which the courts have sought to answer in all the cases dealing with natural justice and with fairness.

I have no doubt that in the case at bar the Board acted fairly towards the applicant.

III

The applicant also alleged that the Board had violated the rule of natural justice against a reasonable apprehension of bias by reason of Latraverse's receiving of extra-hearing informa tion. The authority principally relied upon is Spence v. Spencer and Prince Albert Board of Police Commissioners (1987), 53 Sask. R. 35 (C.A.).

On the facts of that case a police constable had been dismissed after having been found guilty at two separate hearings of, first, falsifying a claim for overtime and, second, various disciplinary infractions with respect to alcohol. Both meetings were chaired by the Mayor. After the charges had been laid, one of the principal witnesses on the second set of charges had come to the Mayor's office to talk about her motives for lodging the complaints, and had responded affirmatively to the Mayor's question as to whether the constable had done the things alleged against him. Another member of the Board of Police Commissioners had withdrawn from the second hearing because his daughter was to be a witness against the constable

on the second infraction, but continued on the first hearing.

Vancise J.A. stated for the Court (at pages 41-43):

The law is well settled that a quasi-judicial tribunal like the Police Commissioners is subject to the rules of natural justice which are, after all, only "fair play in action": (Ridge v. Baldwin, [1962] 1 All E.R. 834, at 850). The rule against bias is one of the most fundamental elements of natural justice. A person accused is entitled to have his cause determined by an impartial tribunal which is untainted with the knowledge of facts or with a predisposition to a particular point of view which might affect the result. The policy underlying this princi ple is that justice must not only be done but must manifestly and undoubtedly be seen to be done. (See R. v. Sussex Justices Ex parte McCarthy, [1924] 1 K.B. 256.) A breach of the rule against bias will generally result in the statutory delegated authority losing jurisdiction and will render the administrative action void and subject to judicial review. The respondent submits that there is no real or apprehended bias by reason that the chairman did not discuss "specific" allegations against the appellant.

The chambers judge in considering this matter found that no actual bias was established and concluded that there was "no real likelihood of bias". In arriving at that conclusion he considered a number of factors, including the following:

(1) Mr. Spencer was not sitting alone. He was a member of a panel;

(2) He did not seek out Miss Ahenakew;

(3) She did not go into all the facts;

(4) The meeting with the chairman was initiated by Miss Ahenakew and was a "chance encounter";

(5) The chairman was not actually engaged in the investiga tion of the allegations made against the appellant;

(6) There was nothing in the evidence to indicate a pre-dispo sition or partiality or prejudice.

With respect, that approach begs the question.

It is not necessary to demonstrate that the chairman was actually biased. The test is whether there was a reasonable apprehension of bias.

The test is whether a reasonable person would believe there is a real danger of bias or whether there would be a reasonable suspicion of bias even though unintended. As the Chief Justice stated, "This test is grounded in a firm concern that there be no lack of public confidence in the impartiality of adjudicative agencies ..." The public policy consideration which requires the appearance of justice focuses on perceptions. A perception of a reasonable apprehension of bias, even though there is no real likelihood of bias, is all that is required to cause the Police Commissioners to lose jurisdiction. Here, the person who pro vided the information to the Police Department which started

the inquiry, the principal witness before the Commission, met privately with the chairman in advance of the hearing. In that meeting she discussed the allegation contained in the charge in a general way, but what is significant is that when asked by the chairman whether the allegations were true, she answered in the affirmative. In my opinion, the facts in this case constitute in law a reasonable apprehension of bias. A reasonable well- informed person would have a reasonable apprehension of bias where the chairman has spoken privately with a principal witness in a cause. Dickson, J., speaking for the authority [sic] in Kane v. Board of Governors of University of British Columbia ... considered this very question.

He concluded that there was a breach of the rules of natural justice and that the Court did not have to inquire into whether the evidence obtained in the private interview did work to the prejudice of one of the parties. It was sufficient if it might have worked to the prejudice of one of the parties. In the present case, we have no knowledge of what was specifically said by Miss Ahenakew to the chairman because her evidence was vague and she could not remember what she said. It is clear, however, that she did talk about the complaint and equally clear that she stated the allegations in the charge were true. In my opinion, the chambers judge erred in deciding that there was no reasonable apprehension of bias and no breach of the rules of natural justice.

The appellant alleges that the participation by the chairman and Norman McCallum in the first hearing in view of the fact that Mr. McCallum's daughter was a witness at the second hearing and that the mayor had spoken privately to the princi pal witness of the second hearing, and that both decisions were rendered on the same date, raises a reasonable apprehension of bias in the first as well as the second decision.

As previously noted, it is not necessary to show that partici pation by those two members or the participation by one or either of them affected the results. It is enough if there is an apprehension that the "judge" might not act in an impartial manner. Mr. McCallum disqualified himself on the second of the hearings presumably on the ground that his daughter was to be a witness. Even though she was not to be a witness at the first hearing and the issue was different, it was still related to the professional conduct of the appellant. There is a reasonable apprehension that the participation by his daughter in the misconduct alleged to have been committed by the appellant could have affected his impartiality in deciding the charge. The same comments apply to the chairman. The appellant alleges that there is a reasonable apprehension the two commissioners did not judge him in a fair and impartial manner by reason of the prior knowledge. He alleges a "probability or reasoned suspicion of bias and judgment, unintended though it be". (Rand, J. in Szilard v. Szasz, supra, p. 373.) I agree. In both cases, the possibility of these members of the Police Commis sion obtaining information concerning the appellant prior to the hearing from these witnesses which could affect their impartial appraisal of the issues is sufficient to raise a reasonable appre hension of bias and a denial of natural justice.

Although I have no doubt that Spence v. Spencer was correctly decided, I find it necessary to enter two caveats. First, Dickson J. in Kane seems to have addressed his remarks to the audi alteram partem rule rather than to the neuro judex principle. 3 Second, as I have already established, Dickson's words must be understood to require judicial scrutiny as to the possibility of prejudice. In Spence v. Spencer, in the case of the Mayor (which is the closer to the facts in the case at bar), the witness's affirmation that the constable had committed the act alleged was a statement highly prejudicial to him, going to the very heart of the case. In those circumstances, since the principle of reasonable apprehension of bias requires essential ly a judgment on appearances from the viewpoint of a reasonable person, the Court correctly found a reasonable apprehension of bias to exist even in the absence of any evidence as to the effect on the Mayor. In my view, however, this conclusion rests on the foundation of prejudicial evidence.

It was common ground to the parties that bias need not be pecuniary. As was said by Hughes J. in Bateman v. McKay et al., [1976] 4 W.W.R. 129 (Sask. Q.B.), at pages 143-144 quoting Freedman J.A. (as he then was) in Re Gooliah and Minister

3 Dickson J. pointed out (at p. 1110) that at Trial "[t]he main thrust of the case advanced on behalf of Dr. Kane was that no man could be a judge in his own cause...." The Court of Appeal upheld the Chambers judge in rejecting an argument based upon that principle. Dickson J. went on to say (at pp. 1110-l111):

Rejected also [by the Court of Appeal] was a second submis sion, apparently not advanced expressly in the Court of first

instance, impugning the presence and conduct of the Univer sity President during the deliberations of the Board, after Dr. Kane and his counsel had withdrawn. This argument rested upon the fact that the President testified or gave evidence during the postprandial session in the absence of Doctor Kane. It is contended that this amounted to a breach of the principles of natural justice and a failure to observe the rule expressed in the maxim audi alteram partem. It is to that argument that I now turn because, in my view, it is one to which the University can give no compelling answer. If this ground of appeal succeeds, as I think it must, it is unneces sary to address the argument resting upon the dual role of the President, the maxim neuro judex in causa sua, and the ramifications of the King, French and Ringrose decisions.

of Citizenship and Immigration (1967), 63 D.L.R. (2d) 224 (Man. C.A.) at pages 227-228:

"Bias may be of two kinds. It may arise from an interest in the proceedings. That indeed is the kind of bias which is most frequently encountered in cases coming before the Courts. Sometimes it is a direct pecuniary or proprietary interest in the subject-matter of the proceedings. A person possessing such an interest is disqualified from sitting as a judge thereon. Some times the interest is not financial but arises from a connection with the case or with the parties of such a character as to indicate a real likelihood of bias.

This brings us to the second kind of bias—namely, actual bias in fact."

A reasonable apprehension of non-pecuniary bias 4 must arise from "a connection with the case or with the parties." It has to amount to an "interest in the subject-matter of the proceedings." In other words, it can come into play only when the tri bunal member appears to have some stake in, or predisposition toward, a particular outcome of the adjudication. In Bateman the tribunal member was exonerated because "the party who did the talking with the ultimate chairman was not some one directly concerned in the matter" (at page 142). The information there was at most enough "to allow him to form a tentative point of view as he stood on the threshold of the hearing" (at page 145).

That requirement identified in Bateman is wholly absent from the facts in the case at bar. However unfortunate his mistake in seeking extra- hearing information, Latraverse's motivation was pure and he had no stake in the outcome beyond the best possible decision. The most that could be said for the applicant's case is that the opinions of the two CRTC staff members may have given Latraverse, not a predisposition, but what I might

4 In Energy Probe v. Atomic Energy Control Board, [1985] 1 F.C. 563 (C.A.), at p. 580, Marceau J.A. (concurring) includes in non-pecuniary bias "emotional type interests ... such as kinship, friendship, partisanship, particular professional or business relationship with one of the parties, animosity towards someone interested, predetermined mind as to the issue involved, etc."

call a post-disposition, to reject specialty services as proxies. But this is a post-disposition favourable to the applicant's argument, and in my opinion it cannot be heard to object to it.

I would agree with the applicant that, if one member of a tribunal is disqualified for bias, the decision of the tribunal must be set aside even if the other members are without bias. That principle was established by Frome United Breweries Co. v. Bath Justices, [1926] A.C. 586 (H.L.). R. v. British Columbia Labour Relations Board, Ex parte International Union of Mine, Mill & Smelt er Workers (1964), 45 D.L.R. (2d) 27 (B.C.C.A.), and In re Anti-dumping Tribunal and re trans parent sheet glass, [1972] F.C. 1078 (T.D.) are to the same effect. In the British Columbia Labour Relations Board case the Court fastened on the fact that the impugned member "retired with the other members and remained with them while they discussed and made their decision" (at page 29).

But that means nothing if no member of a tribunal is disqualifiable for bias. In Yukon Con servation Society v. Yukon Territory Water Board and Cyprus Anvil Mining Corp. (1982), 45 N.R. 591 (F.C.T.D.), five members of a tribunal held private meetings with a corporation seeking a change in its licensing arrangements, thus involv ing themselves in the preparation of the very application they would later have to judge on its merits. Addy J. found (at page 599):

The Five Members have become so involved in the application as to put themselves in the position of being considered gratui tous consultants of Cyprus Anvil and the application, to some limited extent at least, becomes their own. The principle of nemo judex in causa sua debet esse might well be considered applicable.

This is one kind of case in which courts have found a reasonable apprehension of bias to exist, viz., one where a member of a tribunal met with a party affected and discussed the matter to be determined

in the hearing. The result is the same if the meeting is with a key witness, as in Spence v. Spencer. The other type of case is one in which a member of a tribunal has had a past relationship, or has a present one, with a party appearing before it: Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369. Neither of these categories fits the case at bar, for the reasons I have given. I can therefore find no reasonable apprehension of bias on the facts of this case.

The issue as to the award of interest on royalty payments relating to the transitional period be tween January 1 and August 31, 1990, is one of statutory interpretation, relating to subparagraph 70.63 (1) (a) (ii), which reads as follows:

70.63 (1) On the conclusion of its consideration of the statements of royalties, the Board shall

(a) establish ...

(ii) such terms and conditions related to those royalties as the Board considers appropriate;

Acting under this power to establish such terms and conditions related to the royalties it had set, the Board considered transitional provisions appro priate (Decision, at pages 87-88):

(xv) Transitional provisions [Television tariff, s. 19; radio tariff, s. 14]

The transitional provisions are necessary because the Act pro vides that the tariffs will take effect on January 1, 1990 while they were, in fact, approved much later. Two main principles inform these provisions.

First, the provisions are meant to account for the opportunity cost associated with the late payment of royalties. An interest factor has been added, starting on the date an amount would have become due had a retransmitter known the provisions of the tariffs. This interest is equal to the Bank of Canada rate; retransmitters are not responsible for the delay in certifying the tariffs. This provides collecting bodies with fair compensation and does not penalize retransmitters.

Second, the Board wanted to avoid each retransmitter having to calculate the interest factors for the retroactive period. This would have imposed an unnecessary burden on the retransmit- ters, and would have entailed errors. For these reasons, the board has calculated in advance an interest factor by which the

amount owed must be increased. This factor is suitable for most retransmitters; only those that are not small systems and did not retransmit a distant television signal for the whole period will have to calculate the interest. Even these retransmitters will find that the television tariff states the interest rates to be applied for the relevant months.

The provisions containing precalculated interest ignore any fluctuations in the number of premises served by a retransmit- ter during the period. In the Board's opinion, the imprecision that might result from this is small.

The interest factors that the Board went on to establish for both radio and television were not established separately by the tariffs as interest payments, but rather were merged into the royal ties paid.

The applicant conceded that the Board's deci sion that interest be paid on retransmission royal ties not received by the due date may be a proper exercise of the jurisdiction under this provision, but argued that its award of interest on royalties accrued prior to publication of any tariff repre sents the exercise of a substantive authority beyond the Board's powers.

This contention is based in part upon the old principle that no pecuniary burden is to be imposed upon a subject except upon clear and distinct legal authority: Liverpool Corporation v. Maiden (Arthur), Ltd., [1938] 4 All E.R. 200 (K.B.D.). But that, I believe, is a principle of law that applies between sovereign and subject, rather than between subject and subject. It is also based in part on the fact that there is no explicit statu tory provision in the Act specifically empowering the Board to compel the payment of interest by retransmitters. The power would have to be implied, and, since a requirement respecting inter est is a substantive right, it was said that it should be expressly provided for in the governing legislation.

However, the authorities do not go so far as to say that any right to interest must be provided for explicitly. WMI Waste Management of Canada Inc. v. Municipality of Metropolitan Toronto (1981), 34 O.R. (2d) 708 (H.C.), which might be thought to do so, is explained by Northern &

Central Gas Corp. Ltd. v. Kidd Creek Mines Ltd. (1988), 66 O.R. (2d) 11 (C.A.) as taking the position that, where a statute provides a complete code as to interest payments, then the explicit provision of interest on compensation awards, and failure to provide for interest on costs, must be taken as excluding the latter.

Indeed, sections 70.62 through 70.67 are remedial legislation, the objects of which include the establishment of a regime for royalty payments for retransmissions after January 1, 1990. The transitional provisions were deemed necessary by the Board only because the length of the hearings prevented it from approving the tariffs until much later, and it therefore attempted to live up to its statutory mandate by including an interest factor to make up for the late payment of royalties caused by the delays in the approval process. The Interpretation Act, R.S.C., 1985, c. I-21, section 12, requires that legislation be given such fair, large and liberal construction as best ensures the attainment of its objects.

In Bell Canada v. Canada (Canadian Radio- television and Telecommunications Commission), [1989] 1 S.C.R. 1722, at page 1756, Gonthier J. said:

The powers of any administrative tribunal must of course be stated in its enabling statute but they may also exist by necessary implication from the wording of the act, its structure and its purpose. Although courts must refrain from unduly broadening the powers of such regulatory authorities through judicial law-making, they must also avoid sterilizing these powers through overly technical interpretations of enabling statutes.

Accordingly, in that case, the Supreme Court held that a power to make interim orders necessarily implied the power to revise the period during which interim rates were in force. A similarly broad interpretation was given by this Court in Performing Rights Organization of Canada Ltd. v. Canadian Broadcasting Corporation (1986), 7 C.P.R. (3d) 433 (F.C.A.), where the majority of the Court adopted the conception that whatever is reasonably necessary for the proper discharge of a duty is impliedly authorized by it. In Banca Nazionale del Lavoro of Canada Ltd. v. Lee- Shanok (1988), 88 CLLC 14,033 (F.C.A.), a

power to award interest was held by this Court to be impliedly authorized by a power to do anything equitable to remedy or counteract a dismissal.

The Board set the interest rate for the transi tional period at one percent less than the rate generally determined in the tariff for defaulting payments, to allow for the fact that retransmitters were not responsible for the delay in making the payments.

Parliament's intention was clearly that the roy alty scheme should take effect as of January 1, 1990, regardless of how much later that scheme might actually be established. In that respect sec tion 149 of the Canada-United States Free Trade Agreement Implementation Act provides as fol lows:

149. For greater certainty, the royalties in the first state ments certified under paragraph 70.63(1)(d) of the Copyright Act become effective on January 1, 1990 regardless of when the statements are so certified.

Section 149 is described in the heading as the transitional provision of the Act. In the light of Parliament's manifest determination to make the royalty scheme effective on January 1, 1990, it can be supposed only that it would have wanted to make the royalty recipients whole as of that day, or at least to give the Board the right to do so if it considered it appropriate, especially since subpara- graph 70.63(1)(a)(ii) was also enacted by the Canada-United States Free Trade Agreement Im plementation Act.

It was argued by the applicant that an interest penalty for late payment imposed by the Board is unnecessary in the light of the Act's provisions that all copyright holders face either liability for copyright infringement or an action to recover outstanding royalties, and indeed that it is counter productive, by making it difficult to determine at what point a retransmitter is in breach of its obligations. If the payment of interest is not a proper part of the retransmission royalty tariff, it was contended that interest should not be con strued as being within the "terms and conditions related to those royalties." However, it seems to me that any such argument is vitiated by the fact

that the Board was taking account of the unique situation where the retransmitters were not them selves responsible for the delay in certifying the tariffs.

I must therefore conclude that the applicant has failed to establish that the Board committed an error of law or jurisdiction.

In the result the section 28 application must be dismissed.

MAHONEY J.A.: I agree. LINDEN J.A.: I agree.

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