Judgments

[1993] 1 F.C. 231

A-915-92

Telecommunications Workers Union (Applicant)

v.

Canadian Radio-television and Telecommunications Commission, Shaw Cable Systems (B.C.) Ltd. and British Columbia Telephone Company (Respondents)

Indexed as: Telecommunications Workers Union v. Canada (Radio-television and Telecommunications Commission) (C.A.)

Court of Appeal, Stone, MacGuigan and Desjardins JJ.A.—Ottawa, September 14 and October 13, 1992.

Judicial review — Statutory appeals — Motion to dismiss application for judicial review of CRTC decision pursuant to Federal Court Act, s. 18.5 on ground judicial review precluded by existence of statutory right of appeal — Under s. 18.5 where express provision by Act of Parliament for appeal from decision of federal commission, decision not “to the extent that it may be so appealed” subject to review — Leave to appeal denied — Because applicant lacked status as party before CRTC, no redress if judicial review foreclosed — S. 18.5 interpreted restrictively — Not intended to foreclose judicial review — Judicial review available when decision not appealable by party.

Telecommunications — Statutory right of appeal under National Telecommunications Powers and Procedures Act, s. 68 not precluding judicial review of CRTC decision by virtue of Federal Court Act, s. 18.5 where party denied leave to appeal — Judicial review available when decision not appealable by party.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Broadcasting Act, R.S.C. 1970, c. B-11, s. 26(1) (as am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 65, Item 2).

Competition Tribunal Act, R.S.C., 1985 (2nd Supp.), c. 19, s. 13(1).

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.5 (as enacted by S.C. 1990, c. 8, s. 5), 28 (as am. idem, s. 8).

National Telecommunications Powers and Procedures Act, R.S.C., 1985, c. N-20 (as am. by R.S.C., 1985 (3rd Supp.), c. 28, s. 301), s. 68.

CASES JUDICIALLY CONSIDERED

NOT FOLLOWED:

Canada (Director of Investigation & Research) v. Imperial Oil Ltd. (1990), 31 C.P.R. (3d) 284 (F.C.A.).

APPLIED:

Rich Colour Prints Ltd. v. Deputy Minister of National Revenue, [1984] 2 F.C. 246; (1984), 60 N.R. 235 (C.A.).

CONSIDERED:

Cathay International Television Inc. v. Canadian Radio-television and Telecommunications Commission (1987), 50 C.P.R. (3d) 417; 80 N.R. 117 (F.C.A.).

MOTION to dismiss application for judicial review pursuant to Federal Court Act, section 18.5 on the ground that judicial review is not available where there is a statutory right of appeal. Motion dismissed.

COUNSEL:

Morley D. Shortt for applicant.

Carolyn G. Pinsky for respondent Canadian Radio-television and Telecommunications Commission.

Christopher C. Johnston, Q.C. and Christopher A. Taylor for respondents Shaw Cable Systems (B.C.) Ltd. and Canadian Cable Television Association.

Judy Jansen for respondent British Columbia Telephone Company.

No one appearing on behalf of the Attorney General of Canada.

SOLICITORS:

Shortt, Moore & Arsenault, Vancouver, for applicant.

CRTC Legal Directorate, Ottawa, for respondent Canadian Radio-television and Telecommunications Commission.

Johnston, Buchan & Dalfen, Ottawa, for respondents Shaw Cable Systems (B.C.) Ltd. and Canadian Cable Television Association.

Farris, Vaughan, Wills & Murphy, Vancouver, for respondent British Columbia Telephone Company.

Deputy Attorney General of Canada for Attorney General of Canada.

The following are the reasons for judgment rendered in English by

Desjardins J.A.: The only issue raised in this proceeding under section 28 of the Federal Court Act[1] is whether the applicant, who was denied leave to appeal against Telecom Letter Decision CRTC 92-4 by judgment of this Court on September 14, 1992,[2] nevertheless may apply for judicial review against the same decision, being one of the Canadian Radio-television and Telecommunications Commission (CRTC), released June 26, 1992.

This issue originates because Shaw Cable Systems (B.C.) Ltd., (the respondent), has filed a motion to dismiss the application for judicial review on the ground that, pursuant to section 18.5 [as enacted idem, s. 5] of the Federal Court Act,[3] judicial review of Telecom Letter Decision CRTC 92-4 is not available to the applicant in view of the existence of a statutory right of appeal under section 68 of the National Telecommunications Powers and Procedures Act.[4] Since, as already stated, this Court has denied the applicant leave to appeal, it is the respondent’s contention that the mere existence of a right of appeal in the statute book prevents the applicant from availing itself of a recourse in judicial review.

It is true that in the case of Canada (Director of Investigation & Research) v. Imperial Oil Ltd., where subsection 13(1) of the Competition Tribunal Act[5] provided a comprehensive right of appeal of a decision against which the appellants had applied for judicial review, Mahoney J.A., sitting as a judge sole, stated:[6]

It is immaterial whether the appellants did not themselves have that right in respect of the particular decision because they were not parties to the proceeding that gave rise to it. Express statutory provision of a right of appeal is what excludes s. 28 jurisdiction.

However, in Cathay International Television Inc. v. Canadian Radio-television and Telecommunications Commission[7], the Federal Court of Appeal, in quashing a section 28 application because an appeal existed under subsection 26(1) of the Broadcasting Act,[8] relied on the case of Rich Colour Prints Ltd. v. Deputy Minister of National Revenue[9]  where Pratte J.A. stated:

In our opinion, section 29 clearly says that a decision which, under an Act of Parliament, may be appealed to an authority mentioned in the section cannot, to the extent that it may be so appealed, be the subject of a section 28 application. It follows that if the right of appeal is not limited, the decision may not be reviewed under section 28; if the right of appeal is limited, for instance to a question of jurisdiction, the decision may be reviewed under section 28 on grounds that cannot be raised in the appeal. Contrary to what was argued by counsel for the applicant, the last words of section 29 are not rendered superfluous by this interpretation. These words are necessary in order to preserve the jurisdiction of the Court when an Act of Parliament provides that a decision of a federal board may not only be appealed to one of the authorities mentioned in section 29 but may also be reviewed by the Federal Court; in such a case, the decision may be reviewed by the Court but only “to the extent and in the manner provided for in that Act.” [Emphasis in text.]

We are dealing, in the case at bar, not with a restriction to a right of appeal caused by legislative drafting, although one exists, but with a situation where because the applicant lacked status as a party before the CRTC, no possible redress would be available to it if judicial review is foreclosed. I am inclined to read section 18.5 of the Federal Court Act, particularly the words “to the extent that it may be so appealed”, in a very restrictive way, in line with the case of Rich Colour Prints Ltd., with the effect that when a decision may not be appealed by a party, judicial review is available to it. I do not think section 18.5 of the Federal Court Act is meant to foreclose judicial review in such circumstances.

I would dismiss this motion to quash.

Stone J.A.: I agree.

MacGuigan J.A.: I agree.

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