Canadian Radio-Television Commission (Appel-
lant)
v.
Teleprompter Cable Communications Corp.
(Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
Cameron D.J.—Ottawa, November 24, 1972.
Broadcasting—Courts—Jurisdiction—Parties—Canadian
Radio-Television Commission—Not a legal entity—"Federal
board, commission or other tribunal'—Liability to action in
own name—Declaratory relief—Right of Court to grant
where relief obtainable in other court—Attorney General
added as defendant—Broadcasting Act, R.S.C. 1970, c.
B-11, s. 5(1).
Teleprompter Cable Communications Corp. operated a
closed circuit cable TV system in Sault Ste. Marie, Ontario.
It received signals by cable from Sault Ste. Marie, Michi-
gan, and also originated programs in its studios, and dis
tributed both by cable to its subscribers. In July 1972 the
CRTC demanded that it cease operations on the ground that
it was carrying on a broadcasting undertaking without a
licence as required by the Broadcasting Act.
Held (affirming Pratte J.), a motion by the CRTC to strike
out the statement of claim on the ground that it disclosed no
cause of action or that the CRTC was not an entity in law
must be dismissed. The Court has jurisdiction to grant the
relief sought.
Although section 5(1) of the Broadcasting Act ; R.S.C.
1970, c. B-11, constituting the CRTC does not make the
CRTC a legal entity it is clear from other provisions of the
Act that its members are a "federal board, commission or
other tribunal" within the definition in section 2 of the
Federal Court Act and therefore subject to the jurisdiction
of the Trial Division under section 18; and it is particularly
appropriate to implead the members of the Board in their
statutory name in a case involving their statutory authority.
The Court's power to grant declaratory relief is not
ousted because the statute governing the matter provides a
special procedure in another court in which the question
involved might arise. Ealing London Borough Council v.
Race Relations Bd. [1972] 2 W.L.R. 71, followed.
Held also, the Court has authority of its own motion
under Rule 1716(2) to order that the Attorney General be
added as a defendant, and this was a proper case for such
an order.
APPEAL from the decision of Pratte J.,
unreported.
Douglas Carruthers, Q.C., and Barry Collins
for appellant.
Gordon Henderson, Q.C., for respondent.
THURLOW J. (orally)—This appeal is from an
order of the Trial Division, (Pratte J.), made on
September 11, 1972, which directed that the
Attorney General of Canada be added as a
defendant to the action within 15 days and
dismissed without costs the appellant's motion
to strike out the statement of claim on the
ground that it discloses no reasonable cause of
action or on the ground that the appellant is not
an entity in law against whom the action can be
taken. The order in question recites the opinion
of the learned judge of the Trial Division before
whom the motion was made that:
(a) the defendant is a suable entity for the purposes of
section 18 of the Federal Court Act; and that
(b) the Attorney General of Canada should be joined as a
defendant; and that
(c) it is within the powers of this Court to make the
declaratory order prayed for; and that
(d) the other questions raised by the defendant should be
ruled upon by the Court after trial.
In so far as the appeal is from the direction
that the Attorney General of Canada be joined
Rule 1716(2) appears to me to be ample
authority for the order and for the action of the
Court in making the order of its own motion. I
also think the case was a proper one in which to
direct that the Attorney General of Canada be
made a defendant.
With respect to the objection as to the status
of the appellant as a legal entity section 5(1) of
the Broadcasting Act, by which the appellant is
constituted, provides that:
5. (1) There shall be a commission to be known as the
Canadian Radio-Television Commission, consisting of five
full-time members and ten part-time members to be appoint
ed by the Governor in Council.
An examination of the other provisions of
Part II of that Act to my mind makes it clear
that the members of the commission so con
stituted are a body or are persons "having juris
diction or powers etc." falling within the defini
tion of "federal board, commission or other
tribunal" in section 2 of the Federal Court Act
and that the Trial Division of this Court has in
respect of such body or persons the jurisdiction
conferred by section 18 of that Act. The rest of
what is involved in the appellant's submission
with respect to the defendant's status is but a
matter of the rules of the Court for the exercise
of that jurisdictions `s I see it, the appellant is
not a body corporate or other entity having a
legal personality recognized as distinct from
that of its members and the respondent in fram
ing its proceeding might have joined as defend
ants the members of the commission by their
personal names or might have joined them all
by the name of their office, i.e., by naming as
defendants, "the members of the Canadian
Radio-Television Commission". Instead of
adopting either of these courses the respondent
named the commission by its statutory name
which appears to me to be a compendious refer
ence to what the commission consists of, that is
to say, its members. Save in the cases provided
for by Rules 1708 to 1713 I know of no rule of
the Court which authorizes the naming of a
group of defendants by the name of the group
but on the other hand no rule of the Court of
which I am aware prohibits such a practice and
it seems to me that the praçtice of naming the
group by its statutory name is p.artjéular y_con-
venient and_appropriate in a case such as this
where the principal object, of the proceeding is
to obtain a determination of the scope of the
authority conferred by statute on that group of
persons. In my opinion therefore the appellant's
objection is technical and without merit and
should be rejected. Moreover, if the objection
were sound it would follow that there is no
appellant before the Court and that this appeal
itself is a nullity.
Turning to the second branch of the case, a
preliminary point should be mentioned as to
whether the power of a superior court to grant
declaratory relief is necessarily ousted where
the statute governing the particular matter pro
vides a special procedure in another court in
which the question involved might arise. This
question was dealt with by the House of Lords
in Ealing London Borough Council v. Race
Relations Board [1972] 2 W.L.R. 71. In that
case it was held that the mere fact that a statute
contained provisions governing the procedure
for enforcement of an Act did not oust the
jurisdiction of the superior court to grant
declaratory relief. See per Viscount Dilhorne at
page 79. See also per Lord Donovan at pages
75 and 76.
I turn now to the submission of no reasonable
cause of action. The principal relief claimed by
the respondent consists of:
(a) A declaration that it is not a broadcasting undertaking
within the terms of the Broadcasting Act, and that it is
not required to obtain a licence from the Commission in
order to carry on its present operations in Sault Ste.
Marie, Ontario.
(b) An injunction restraining the Commission from pro
ceeding against the plaintiff under the Broadcasting Act
for the carrying on of its undertaking without a licence
from the Commission.
and the basis for claiming such relief is set out
as follows in paragraphs 6 to 12 of the state
ment of claim:
6. The plaintiff operates a closed circuit cable T.V.
system in Sault Ste. Marie, Ontario. In the plaintiff's system
signals are received by cable from Sault Ste. Marie, Michi-
gan, and are distributed by cable to subscribers of the
plaintiff. Some programs are originated in the studios of the
plaintiff at 143 Gore Street, Sault Ste. Marie, Ontario, and
such programs are also distributed by cable to subscribers
of the plaintiff.
7. The plaintiff does not own or use any equipment for
transmission, emission, or reception of signs, signals, writ
ing, images, sound or intelligence of any nature by means of
electromagnetic waves of frequencies lower than 3,000
gigacycles per second propagated in space without artificial
guides.
8. The plaintiff does not engage in any transmission,
emission, or reception of signs, signals, writing, images,
sound or intelligence of any nature by means of electromag
netic waves of frequencies lower than 3,000 gi g acycles per
second propagated in space without artificial guides.
9. By reason of the facts stated in paragraphs 7 and 8
hereof, the plaintiff does not engage in radio communication
within the terms of the Broadcasting Act. As the plaintiff is
not involved with radio communication, it is not a broad
casting undertaking within the terms of the Broadcasting
Act.
10. On July 24, 1972, the plaintiff received a letter dated
July 20, 1972, and signed by Monique Coupal, Secretary,
Canadian Radio-Television Commission. This letter reads as
follows:
100 Metcalfe Street,
OTTAWA, Ontario,
K1A 0N2.
REGISTERED July 20, 1972.
Continental Cablevision Incorporated,
308 Queen Street East,
SAULT STE. MARIE, Ontario.
Gentlemen:
Since April 1, 1968, your company has carried on a
broadcasting undertaking in Sault Ste. Marie, Ont. without a
valid and subsisting licence as is required under the Broad
casting Act.
It is our opinion that we have given you ample time to
comply with the said Act.
To date no steps have been taken by you in this respect.
Therefore, we have no other alternative but to demand
that you cease this illegal operation within 30 days of the
date hereof.
Yours truly,
Monique Coupai,
Secretary.
11. The plaintiff is not a broadcasting undertaking under
the terms of the Broadcasting Act and, therefore, does not
require a licence from the Commission to carry on its
operations.
12. The letter dated July 20, 1972, from Monique
Coupal, constitutes a threat of proceedings by the Commis
sion against the plaintiff. Such a threat prejudices negotia
tions underway for the sale of the plaintiff's operation in
Sault Ste. Marie, Ontario, and makes it impossible for the
plaintiff to plan its future strategy with respect to such
negotiations....
I have some doubt that these allegations are
sufficient to show that the operation as a whole,
of which the respondent's undertaking is but a
part, is not a broadcasting operation within the
meaning of the statute and I also think that a
situation such as this, where all that can be
considered is what has happened in the past
and, perhaps, is presently continuing, will rarely
form a satisfactory subject-matter for a declara
tion the real object of which is not to obtain a
declaration of rights flowing from what has
happened—which could as conveniently be left
to such summary conviction proceedings as
might be brought under the Act—but to obtain a
ruling for the future on the applicability of the
Broadcasting Act to an undertaking the charac
ter of which will not necessarily remain the
same. One may also doubt that a Court would
grant an injunction as claimed on the basis of
the facts that have been pleaded.
But, in my view, the problem raised by the
appellant's motion was not whether on the facts
as alleged an injunction as claimed should be
granted but whether on any conceivable inter
pretation of those facts a claim for injunctive or
prohibitory relief within the scope of the claim
therefor could be sustained. Similarly the prob
lem before the Court with respect to the
claimed declaration was not whether on such
facts the declaration asked should be made but
whether on the facts as alleged a declaration if
made in the exercise of the Court's discretion at
trial would be sustainable.
I agree with the view of the learned trial
judge that the Court has jurisdiction to make a
declaration of the kind sought, if in the exercise
of its discretion it should think fit to do so after
a hearing on the merits, and I also think the
Court has jurisdiction to grant injunctive or
prohibitory relief against the appellant (or
appellants) in an appropriate situation.
Further, on the facts as pleaded, and having
regard to the penalties which the respondent
may be incurring if it is wrong in operating
without a licence, I do not regard it as incon
ceivable that the Court in the exercise of a
judicial discretion might grant a declaration of
the sort claimed and might further, if persuaded
that the appellant is without authority over the
respondent's undertaking, consider it just and
convenient to restrain or prohibit the appellant
(or appellants) from exercising or threatening
the exercise of a jurisdiction over the respond
ent which it or they do not possess.
I am therefore of the opinion that it would
have been wrong to abort the proceedings at
this stage by striking out the statement of claim
and that the learned trial judge properly exer
cised his discretion under the rules in deciding
to dismiss the motion.
I would dismiss the appeal with costs.
* * *
Jackett C.J. and Cameron D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.