Docket: A-541-99
OTTAWA, ONTARIO, THE 26TH DAY OF OCTOBER 1999
CORAM: THE HONOURABLE MADAME JUSTICE DESJARDINS
THE HONOURABLE MR. JUSTICE LINDEN
THE HONOURABLE MR. JUSTICE LÉTOURNEAU
BETWEEN:
CANADIAN BROADCASTING CORPORATION
Appellant
- and -
MÉTROMÉDIA CMR MONTRÉAL INC.,
DIFFUSION MÉTROMÉDIA CMR INC. and RADIO NORD INC.
Respondents
- and -
CANADIAN RADIO-TELEVISION AND
TELECOMMUNICATIONS COMMISSION
Intervener
JUDGMENT
The appeal is dismissed with costs.
Alice Desjardins
J.A.
Certified true translation
M. Iveson
Date: 19991026
Docket: A-541-99
CORAM: DESJARDINS J.A.
LINDEN J.A.
LÉTOURNEAU J.A.
BETWEEN:
CANADIAN BROADCASTING CORPORATION
Appellant
AND:
MÉTROMÉDIA CMR MONTRÉAL INC.,
DIFFUSION MÉTROMÉDIA CMR INC. and RADIO NORD INC.
Respondents
- and -
CANADIAN RADIO-TELEVISION AND
TELECOMMUNICATIONS COMMISSION
Intervener
Hearing held at Ottawa, Ontario, on Tuesday, October 26, 1999
Judgment delivered from the bench at Ottawa, Ontario, on Tuesday, October 26, 1999
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 19991026
Docket: A-541-99
CORAM: DESJARDINS J.A.
LINDEN J.A.
LÉTOURNEAU J.A.
BETWEEN:
CANADIAN BROADCASTING CORPORATION
Appellant
AND:
MÉTROMÉDIA CMR MONTRÉAL INC.,
DIFFUSION MÉTROMÉDIA CMR INC. and RADIO NORD INC.
Respondents
- and -
CANADIAN RADIO-TELEVISION AND
TELECOMMUNICATIONS COMMISSION
Intervener
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Ottawa, Ontario,
on Tuesday, October 26, 1999)
LÉTOURNEAU J.A.
[1] We are of the view that this appeal by the Canadian Broadcasting Corporation, seeking the reversal of decision CRTC 99-151, dated June 21, 1999, by the Canadian Radio-television and Telecommunications Commission (CRTC), is without merit and must be dismissed.
[2] The CRTC is a specialized, independent agency to which, precisely because of its expertise, Parliament has granted extensive powers for the supervision and regulation of the Canadian broadcasting system to allow it to implement the broadcasting policy set out in section 3 of the Broadcasting Act, S.C. 1991, c.11.1 It is settled that the CRTC has broad discretion in exercising its powers to issue or revoke licences.2
[3] Although CRTC decisions are not protected by a privative clause, the fact remains that the courts which are called upon to review these decisions must show a great deal of deference when the agency is acting within its field of expertise and specialized knowledge, it is required under the objectives of the Act which governs it to find a delicate balance between the competing interests of the parties and it rules on a question of fact related to its expertise.3 In our view, these three factors are present in the decision challenged by the appellant and it merits the required deference on our part.
[4] First, the application submitted to the CRTC concerns the use of a radio frequency which falls under the powers of supervision and regulation which Parliament has granted to the CRTC (s. 5 of the Act) and for which the CRTC may issue licences (s. 9 of the Act).
[5] Second, the Act (s. 3) identifies about forty sometimes conflicting objectives which must guide the CRTC in exercising its powers. This leads to a polycentric adjudication process, involving numerous participants with opposing interests, with a view to implementing the broadcasting policy set out in the Act.
[6] Finally, the CRTC"s decision concerns an application for a licence which essentially involves economic and cultural policy considerations which come within the CRTC"s expertise and for which the agency has discretion.
[7] To circumvent the problem posed by the requirement of judicial deference, the appellant maintains that the CRTC erred in law or exceeded its jurisdiction by failing to have regard to Canadian broadcasting policy as prescribed in paragraphs 3(1)(l), (m) and (n) of the Act:
| 3. (1) It is hereby declared as the broadcasting policy for Canada that . . . (l) the Canadian Broadcasting Corporation, as the national public broadcaster, should provide radio and television services incorporating a wide range of programming that informs, enlightens and entertains; |
3. (1) Il est déclaré que, dans le cadre de la politique canadienne de radiodiffusion: . . . l) la Société Radio-Canada, à titre de radiodiffuseur public national, devrait offrir des services de radio et de télévision qui comportent une très large programmation qui renseigne, éclaire et divertit; |
(m) the programming provided by the Corporation should
| (i) be predominantly and distinctively Canadian, |
| (ii) reflect Canada and its regions to national and regional audiences, while serving the special needs of those regions, |
m) la programmation de la Société devrait à la fois:
| (i) être principalement et typiquement canadienne, |
| (ii) refléter la globalité canadienne et rendre compte de la diversité régionale du pays, tant au plan national qu'au niveau régional, tout en répondant aux besoins particuliers des régions, |
| (iii) actively contribute to the flow and exchange of cultural expression, |
| (iv) be in English and in French, reflecting the different needs and circumstances of each official language community, including the particular needs and circumstances of English and French linguistic minorities, |
| (iii) contribuer activement à l'expression culturelle et à l'échange des diverses formes qu'elle peut prendre, |
| (iv) être offerte en français et en anglais, de manière à refléter la situation, et les besoins particuliers des deux collectivités de langue officielle, y compris ceux des minorités de l'une ou l'autre langue, |
| (v) strive to be of equivalent quality in English and in French, |
| (v) chercher à être de qualité équivalente en français et en anglais, |
| (vi) contribute to shared national consciousness and identity, |
| (vii) be made available throughout Canada by the most appropriate and efficient means and as resources become available for the purpose, and |
| (viii) reflect the multicultural and multiracial nature of Canada; |
| (vi) contribuer au partage d'une conscience et d'une identité nationales, |
| (vii) être offerte partout au Canada de la manière la plus adéquate et efficace, au fur et à mesure de la disponibilité des moyens, |
| (viii) refléter le caractère multiculturel et multiracial du Canada; |
(n) where any conflict arises between the objectives of the Corporation set out in paragraphs (l) and (m) and the interests of any other broadcasting undertaking of the Canadian broadcasting system, it shall be resolved in the public interest, and where the public interest would be equally served by resolving the conflict in favour of either, it shall be resolved in favour of the objectives set out in paragraphs (l) and (m) . . . .
n) les conflits entre les objectifs de la Société énumérés aux alinéas l) et m) et les intérêts de toute autre entreprise de radiodiffusion du système canadien de radiodiffusion doivent être résolus dans le sens de l'intérêt public ou, si l'intérêt public est également assuré, en faveur des objectifs énumérés aux alinéas l) et m) . . . .
[8] In our view, this argument cannot withstand a careful examination of the CRTC decision, the appeal book before us and the objectives of the Act.
[9] The Act provides that the Canadian broadcasting system comprises public, private and community elements (paragraph 3(1)(b)) and that the system should be regulated and supervised by the CRTC in a manner that takes into account regional needs and concerns (paragraph 5(2)(b)). A range of broadcasting services in English and in French must be extended to all Canadians as resources become available (paragraph 3(1)(k)). The system should also encourage the development of Canadian expression (subparagraph 3(1)(d)(ii)). Paragraph 3(1)(n) provides that where any conflict arises between the objectives of the appellant and the interests of any other broadcasting undertaking, it shall be resolved in the public interest. In our view, that is what the CRTC did in the case at bar.
[10] While it is true that the CRTC decision does not specifically refer to paragraphs 3(1)(l), (m) and (n) of the Act, the impugned decision as a whole indicates, as Métromédia CMR Montréal Inc. and Diffusion Métromédia CMR Inc. (the respondents) properly argued, that the CRTC had regard to:
| (a) evidence of the technical considerations, of Métromédia"s financial situation and its competitive position in the Montréal commercial radio market, and how better signal coverage should allow them to improve their financial situation; |
| (b) the fact that Métromédia"s proposals would ensure a greater variety of sources of information; |
| (c) the legitimate public policy concerns raised in the Canadian Broadcasting Corporation"s application because of the concentration of CBC sources of information in the Montréal market; |
| (d) the impact of the decision on the other stations, which should be negligible because the CRTC does not issue licences for new programming services in the Montréal market; |
| (e) the nature of the programming offered by CKVL and CIQC, a talk format, which is better suited to the AM band than a music format; |
| (f) the fact that the two best AM frequencies still available in Montréal will be thus utilized; |
| (g) the benefits that will accrue to communities within the coverage areas of CKVL and CIQC as well as for the broadcasting system as a whole because of the approval of the respondent"s application; and |
| (h) the creation of new stations and the hiring of 16 more journalists to work for CKVL and CIQC.4 |
[11] Even though it does not mention paragraphs 3(1)(l), (m) and (n) of the Act in its decision, we believe it is clear that the CRTC did consider the pubic interest involved while weighing the economic considerations at issue, the range and nature of the proposed programming, the benefits to the community and regional needs, in accordance with the objectives set out in the Act, before it decided in favour of the respondents.
[12] It is also clear on the face of the transcript of the public hearings that throughout the hearings and during its ruling, the CRTC considered the public interest as well as the appellant"s role as the national public broadcaster and, in particular, subparagraph 3(1)(m )(vii) of the Act which states that the programming provided by the appellant should "be made available throughout Canada by the most appropriate and efficient means".
[13] The concern expressed by the Chairperson at the hearing undoubtedly relates to the public interest " concern with respect to the duplication of existing programs by the appellant, the impact a fifth Canadian Broadcasting Corporation station would have on the range of programming in the Montréal area and on private broadcasters, the best possible use of the available frequency, and the concentration of sources of information " as she was concerned about maintaining a balance between the public and private sectors in the public interest:5
[TRANSLATION]
| Chairperson |
| Now, I understand that the content of InfoRadio will be written by the staff posted there, et cetera, and that those people will write their own copy. Despite that, when I think about what you are proposing for information gathering, because you will not have a news room and because the approach you propose is based or will essentially rely on the work of the news pool of existing C.B.C. stations, is it not possible that the audience will receive the same information and approach which is already available on Radio One, Radio Two, television and RDI? And we are not only talking about Francophones. There are many bilingual people in Montréal who at that time could also get news from Radio One, Radio Two, television and Newsworld. |
| How do you respond to the suggestion that there is a risk of an imbalance with respect to the private sector and a concentration of information which ultimately comes from the same source? |
| Chairperson: Two questions still remain. This first is: What will be the impact on the market? The second is: Should this minor impact through the sought-after frequency benefit the private or public sector by adding a station . . . therefore, there are really two questions, by adding a news station, what will be the impact on existing stations with a similar format? You say it will be minimal. But the second question is: If we add a station which will have a minimal impact, should the private or public sector put it on the air? |
| MR. LAFRANCE: I would say that both of the proposals before you are extremely different. These projets are very, very, very different because the format we are proposing for InfoRadio relies on a broad listener base but a small share, because what we are saying is that you can always get all the news you need in 15 minutes, and that is a unique format among those which presently exist. |
| Should it benefit the public or private sector? I think that it will truly benefit the audience, in any event; we feel it is an important service for the listeners. |
| CHAIRPERSON: That is exactly my question: Would the listening audience be better served with a fifth voice from one party or another news voice which would not be weakened but strengthened by the use of the frequency? Because we must consider the best use of the frequency. |
[Emphasis added.]
[14] Finally, it should be remembered that the CRTC decision challenged by the appellant fits into a continuum which began with two decisions in its favour issued on July 4, 1997, which supported its approach over that of the other applicants, including the respondents, and which authorized it to move its AM stations CBF and CBM Montréal (CRTC 97-293 and CRTC 97-294) to the FM band. In fact, the CRTC noted the connection between its June 21, 1999 decision and its previous decisions.6 With respect to both of these decisions, the appellant placed a great deal of emphasis on paragraphs 3(1)(l), (m) and (n), its role as the national public broadcaster and the potential that its programming "be made available throughout Canada by the most appropriate and efficient means and as resources become available for the purpose". In this regard, it persuaded the CRTC that the AM band was no longer an appropriate means of delivering its public broadcasting service to the population and that its future involved a transfer of its activities to the FM band. The CRTC took into consideration the appellant"s special role and its special obligations under the Act. For these reasons, it accordingly authorized the appellant to convert its station on the AM band to the FM band, as an exception to its policy. But now it is once again applying for the same AM band, claiming that in its last decision in the respondent"s favour, the CRTC did not take into account the appellant"s special role and the fact that the AM band is an appropriate means of delivering its public broadcasting service to the population! The following excerpt from the CRTC decision of July 4, 1997 (97-293), at pages 15 to 19, speaks volumes about the appellant"s position at that time and the merit of this objection:
| At the public hearing, the CBC stated that it wishes to continue to play an important role in the radio landscape and to remain a relevant radio service, and that one of the key elements of this strategy for the future is to reach all listeners wherever they may be by the best available means. In this regard, it cited subparagraph 3(1)(m)(vii) of the Act, which states that "the programming provided by the Corporation should be made available throughout Canada by the most appropriate and efficient means and as resources become available for the purpose". When asked at the Public Hearing whether the application complied with the guidelines set out in Public Notice CRTC 1991-102, the President of the CBC stated that the special situation of Montréal must be considered. He added: [TRANSLATION] "it is not our intention to ask you to transfer all the stations on our networks from AM to FM". |
| The CBC's argument is essentially that, given the current state of radio in Montréal, the AM band is no longer the most appropriate or efficient means of delivering its public broadcasting service to the population. Based on its own analyses of the situation as well as BBM data, the CBC noted in this regard that French-language AM listenership in Montréal was 64% in 1980, but has now dropped to less than half that figure, 29%. It added that 85% of the under-24 age group, and 75% of the 25-34 age group, never listen to AM. In these circumstances, the CBC is concerned about the future of public radio because of the great difficulty it will face in renewing audience in the coming years. The CBC also cited the listenership problems affecting AM broadcasting, particularly in large urban centres, noting that 26% of CBF listeners occasionally have signal reception problems, especially in downtown Montréal. The Corporation also noted that, since its French-language AM service is non-commercial, its conversion to the FM band will have no impact on the advertising base of the other broadcasters in Montréal. |
| . . . |
| As noted above, in reaching its decision to approve the CBC's application, the Commission took into consideration the current status of the broadcasting market in Montréal, which has experienced major upheavals in recent years, including the closing of two stations, CJMS Montréal and CKLM Laval. In its intervention, Radiomutuel pointed out that the situation is still precarious, even though the restructuring it undertook in 1994-95 together with Télémédia had strengthened the advertising market for French-language radio. Furthermore, Cogeco, in its intervention, gave its support to the CBC application precisely because it is a non-commercial service, which is likely to have the least impact on the market. |
| The Commission also took into account the special nature of radio listenership in the French-language market in Montréal. It notes that listenership for CBC programs broadcast on the AM band remained relatively stable from 1986 to 1996, according to BBM data. However, according to the same data, since 1986, Montréal's French-language market already has the highest rate of FM band listenership in Canada, by a considerable margin. Moreover, according to BBM's listenership data for the Montréal market in the fall of 1996, 68.4% of listenership for French-language radio was devoted to stations broadcasting on the FM band; this is still among the highest in Canada. |
| With regard to the technical questions related to broadcasting on the AM band, the CBC acknowledged at the Public Hearing that the primary goal of its application was not to correct technical problems associated with its present AM frequency, but to be able to reach the largest possible number of listeners, as a national public broadcaster. However, the Commission noted its arguments concerning the AM reception problems in large buildings in downtown Montréal, and the fact that the quality of its AM band is becoming less and less able to meet the demands of its listeners. |
| The Commission also took into account the special role played by the CBC in the Canadian broadcasting system and its special obligations under the Act. As a national public broadcaster, the CBC must, in particular, provide a radio service that is made available to the greatest possible number of Canadians, and that includes a broad range of programming, likely to meet the needs and interests of all segments of the Canadian public. The Commission considers that adding the French-language CBC Radio (AM) network service to the FM band will bring new diversity to the broadcasting services already offered on this band in Montréal and that this approval is also likely to make a potential new audience more readily available to the national public service, particularly among young people, who listen more to the FM band. |
| . . . |
| Having weighed all of the available evidence, a majority of the Commission has determined that the use of the 95.1 MHz frequency will lead to a significant improvement of the service offered by the CBC to the population of the largest Francophone city in Canada and that it is, therefore, in the public interest. Accordingly, the Commission has concluded that an exception to its policy with regard to the conversion to the FM band of the CBC French-language Radio (AM) network service broadcast by CBF Montréal is justified in the circumstances. In addition, after analysing each of the competing applications on its own merits, the Commission has concluded that the CBC's proposal represents the best possible use of the 95.1 MHz frequency in the circumstances. |
[Emphasis added.]
[15] Under these circumstances, it is understandable that the CRTC did not feel the need to further elaborate on the appellant"s special role in its recent decision of June 21, 1999, and decided it was sufficient to indicate how the public interest now justified the approval of the respondent"s application. It cannot be blamed for acting in this way and it is not for us, as the appellant argued, to call into question once again the CRTC"s policy decision.
[16] Finally, we are of the view that the appellant"s argument that the CRTC failed to observe the principles of natural justice and its own rules of procedure by allowing the respondents to make substantive changes to their pending application and to introduce new evidence is without merit. Specifically, it seems that the CRTC allowed the respondents to make changes to the type of programming proposed, licence conditions and the non-severability of applications. The new evidence apparently involves the admission of a survey, the commitment to hire 19 journalists and the presentation of a detailed programming schedule as well as a budget breakdown. The appellant"s argument is based on section 8 of the CRTC Broadcasting Rules of Procedure which states:
| 8. No application may be amended or varied and no supplementary or additional document may be filed, after a notice in respect thereof has been published pursuant to subparagraph 4(2)(b)(i), except with permission of the Commission and upon such terms and conditions as it may determine. |
[17] Section 8 does not impose a complete bar and the CRTC may allow amendments and information to be added which it considers necessary or useful for a comprehensive examination of the issues before it. Furthermore, section 33 of the Rules allows evidence to be introduced at a public hearing in support of statements contained in an application or documents or material filed in support thereof:
| 33. No evidence may be introduced at a public hearing except in support of statements contained in an application, intervention or reply, as the case may be, or in support of documents or material filed in support thereof. |
[18] The transcript of the public hearings indicates that most of the information filed by the respondents at the hearing was either particulars with respect to the pending application or which were filed at the CRTC"s request in order to better inform competitors and interveners and for its convenience.7 With respect to the survey which was discussed by the various interveners, the CRTC was aware of the fact that it was not on the record and undertook to apply the procedure which is generally followed in such cases. There is no evidence that the CRTC did not honour its commitment or that the survey had a significant impact on its decision.
[19] Finally, nothing occurred during the hearings which would indicate that there was a breach of the rules of natural justice. The appellant plays a leading role in the field of broadcasting - it is informed, discerning and sensible. It is surprising, particularly under the circumstances of the instant case, to hear it suggest that it did not know what was at issue at the hearings. This statement is quite simply not credible.
[20] Moreover, the appellant did not persuade us that the procedure followed by the CRTC was or could be prejudicial to the appellant. The additional information filed by the respondents was not at all out of the realm of the appellant"s field of expertise, and in certain cases tallied with the information it had filed in support of its own application. Of course, the appellant would have preferred to have the information earlier and not simply during the hearing, but it cannot be said that it was unable to properly make representations with respect to the respondent"s application because of the nature of the information, the appellant"s expertise and the fact that it still had more than half a day to review it before making its representations to the CRTC.
[21] Furthermore, at no time did it object to the procedure followed by the CRTC or ask for an adjournment it considered necessary to allow it to properly review the documentation provided by the respondents at the CRTC"s request and to better argue its position. There is nothing on the record to suggest that the appellant, while not being totally satisfied with the procedure which was followed, nevertheless felt put upon to the point of being confused and unable to properly object to the respondents" application.
[22] For these reasons, the appeal will be dismissed with costs.
Gilles Létourneau
J.A.
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: A-541-99
STYLE OF CAUSE: CANADIAN BROADCASTING CORPORATION
-and-
| MÉTROMÉDIA CMR MONTRÉAL INC., DIFFUSION MÉTROMÉDIA CMR INC. and RADIO NORD INC. |
-and-
| CANADIAN RADIO-TELEVISION AND |
| TELECOMMUNICATIONS COMMISSION |
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: OCTOBER 26, 1999
REASONS FOR JUDGMENT OF THE COURT - THE HONOURABLE MADAME JUSTICE DESJARDINS, THE HONOURABLE MR. JUSTICE LINDEN AND THE HONOURABLE MR. JUSTICE LÉTOURNEAU
DELIVERED FROM THE BENCH ON OCTOBER 26, 1999
APPEARANCES:
GUY J. PRATTE AND MARTINE M. RICHARD FOR THE APPELLANT
GÉRALD TREMBLAY, FRANCINE CÔTÉ AND
LUC MARTINEAU FOR THE RESPONDENTS
COLIN K. IRVING, DOUGLAS C. MITCHELL
AND ALASTAIR STEWART FOR THE INTERVENER
SOLICITORS OF RECORD:
BORDEN ELLIOT SCOTT & AYLEN FOR THE APPELLANT
McCARTHY TÉTRAULT
CÔTÉ ET ASSOCIÉS FOR THE RESPONDENTS
COLIN IRVING & ASSOCIÉS FOR THE INTERVENER
__________________1 Association for Public Broadcasting in B.C. v. CRTC, [1981] 1 F.C. 524, at p. 530 (F.C.A.).
2 Canadian Broadcasting League v. CRTC, [1983] 1 F.C. 182, affirmed by the Supreme Court of Canada, [1985] 1 S.C.R. 174.
3 Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 982, at pp. 1006 to 1012.
4 See the decision and the considerations on which the CRTC relied at pp. 6 to 9 of the Appeal book, vol. 1.
5 Appeal book, vol. III, tab 11, pp. 628 and 633.
6 The AM frequencies 690 kHz and 940 kHz became available as a result of decisions CRTC 97-293 and 97-294 of July 4, 1997, in which the Commission approved the conversion of CBC stations CBF and CBM Montréal to the FM band. In decision CRTC 97-293, it denied Métromédia CMR Montréal inc."s competing application with respect to technical issues with a view to converting CKVL to the FM band. The object of this application was to resolve long-standing problems with reception of CKVL"s signal on the existing AM frequency.
7 Appeal book, vol. III, tab 11, pp. 668, 669, 671, 673, 695 and 765.