Clayton Weatherby and Terra Cable Limited
(Applicants)
v.
Minister of Public Works (Respondent)
Trial Division, Kerr J.—Ottawa, August 8 and
11, 1972.
Judicial review—Mandamus—Broadcasting—Unlicensed
broadcaster—Coaxial cable installed on international
bridge—Bridge under management of Minister of Public
Works—Conviction for broadcasting without licence—Man-
damus to compel Minister to remove cable—Whether Minis
ter under legal duty to remove cable—Public Works Act,
R.S.C. 1970, c. P-38, section 9(1).
In February 1964 the Department of Public Works per
mitted the F Co., which provided cablevision to residents of
St. Stephen, N.B., to install a coaxial cable on the interna
tional bridge linking St. Stephen with Calais, Maine, subject
to the condition, inter alia, that the F Co. would remove the
cable if the Department deemed it necessary. Section 9(1)
of the Public Works Act provides that the Minister has the
management of bridges belonging to Canada. Neither the F
Co. nor either of its two successors had a broadcasting
licence, and in 1970 the F Co. was convicted of broadcast
ing without a licence. In 1971 the CRTC laid similar charges
against one of F Co's successors and by letter to the F Co.
and its two successors requested them to remove the coaxi-
al cable within 30 days. The request was not complied with.
W, who operated a cablevision system in the same area
under licence from the CRTC, applied for mandamus to
compel the Minister to remove the cable.
Held, dismissing the motion, the Public Works Act did not
prescribe how the Minister was to perform his functions
respecting management of international bridges, and he was
not under a legal duty to enforce compliance with the
conditions imposed when the cable was initially attached to
the bridge. Moreover, mandamus was not the appropriate
remedy to deal with the real problem, viz. the broadcasting
operation in which the cable was used.
APPLICATION for mandamus.
J. C. Hanson and B. Ross for applicants.
J. E. Smith for respondent.
KERR J.—This is an application for an order
of mandamus requiring the Minister of Public
Works to issue an order directing the Deputy
Minister of Public Works to remove and keep
removed a coaxial cable that is suspended on
and supported by the International Bridge con-
necting St. Stephen, N.B., and Calais, Maine.
The Department of Public Works permitted the
cable to be installed in February, 1964. The
portion of the bridge in Canadian territory is
owned by Canada and is under the management
of the Minister of Public Works.
The cable is owned and used, as part of a
system that is providing cable television to resi
dents in the St. Stephen-Milltown area of New
Brunswick, by a company that has no broad
casting licence to do so.
The applicant Clayton Weatherby operates a
cable television system in the same area under a
licence from the Canadian Radio-Television
Commission (CRTC) and complains that his lic
ensed operations are being seriously hurt by the
said unlicensed system. Weatherby is president
and the major shareholder of Terra Cable Lim
ited, whose interest is otherwise not clearly
shown by the material filed.
When the Department of Public Works
approved a request by Faust Transvision Limit
ed to be allowed to install the cable in 1964 the
Department did so under the following
conditions:
(a) Should the Department at any time deem
it necessary, Faust Transvision will facilitate
and bear the total cost of removing the cable.
(b) The Department of Public Works will
bear no responsibility whatever for damage to
the cable.
It appears that Faust Transvision sold its
interest in the cablevision system to Acadian
Telecommunications Co. Ltd. and that the latter
company sold to Acadian Cable T.V. Ltd.
In May 1972 Weatherby complained to the
Department of Public Works and the CRTC that
Acadian Cable T.V. was providing cable televi
sion services in St. Stephen by use of the cable.
Thereupon the legal counsel of the CRTC wrote
to the executive assistant to the Minister of
Public Works as follows:
Further to our meeting last Friday, May 5th, in the
presence of Mr. Weatherby, licensee of the cable television
undertaking in St. Stephen and Milltown, N.B., I am writing
to you.
On May 11th, 1970, Acadian Telecommunications Com
pany Limited was convicted of carrying on a broadcasting
receiving undertaking located in part at the Town of St.
Stephen, N.B. without a valid and subsisting broadcasting
licence therefore, contrary to and in violation of Section
29(3) of the Broadcasting Act, Chapter 25 of the Statutes of
Canada, 1967-68. The accused was fined five hundred
dollars ($500.). You will find enclosed a copy of that
judgment.
Unfortunately, this judgment did not put an end to the
unlicensed operations. Subsequent to the judgment, Acadi-
an Cable T.V. Limited (related to Acadian Telecommunica
tions) submitted an application to CRTC for a licence to
carry on a cable undertaking to serve St. Stephen-Milltown,
N.B. The application was denied in March 1971 and a copy
of the decision is enclosed.
Acadian Cable T.V. Limited was refused a motion for
leave to appeal this decision by a judge of the Supreme
Court of Canada on May 6, 1971.
In November 1971, the Commission has again laid
charges against Acadian Cable T.V. Limited, Acadian Tele
communications and others on the ground that they are
operating an unlicensed broadcasting undertaking in St.
Stephen and Milltown, N.B. I am also enclosing a copy of
the first procedures in this case. Our prosecution in this
matter is lingering in court and the accused are using every
procedural delay to stall the hearing of the case. This action
has been taken against the same system that was found to
be in violation of the Broadcasting Act on May 11th, 1970.
The undertaking consists of a head-end situated in Calais,
Maine, U.S.A. with trunk and distribution cables in Calais,
Maine, St. Stephen and Milltown. The co-axial cable enters
Canada via two bridges over Ste-Croix River at St. Stephen,
N.B.
The Department of Public Works may wish to review any
agreement having for object the passing of the cables and
associated equipment of the unlicensed undertaking on the
international bridges in question.
It is to be noted that a licence to carry on a cable
broadcasting undertaking to serve St. Stephen-Milltown,
N.B. issued to Clayton A. Weatherby was renewed until
November 1st, 1973 by the CRTC.
If you wish to have more details on this matter, please
feel free to get in touch with me. We appreciate your
cooperation and courtesy in this matter.
Following receipt of that letter the Depart
ment of Public Works served a written notice
dated June 12, 1972, on Faust Transvision Ltd.,
Acadian Telecommunications Company Limit
ed and Acadian Cable T.V. Ltd., which con
tained the following paragraphs, inter alia:
You are hereby advised that the Department of Public
Works deems it necessary that the above-mentioned coaxial
cable be removed and you are therefore hereby requested to
remove the said coaxial cable from the said bridge within 30
days of receipt of this notice at no cost to the Crown.
In the event the said coaxial cable is not removed as
aforesaid such action as may be considered necessary to
remove the said cable will be taken and you will be held
responsible for all costs and damage occasioned as a result
of such removal. No further notice will be given.
The request that the cable be removed was
not complied with, and the present applicants
filed a notice of motion for an order of man-
damus requiring removal of the cable. That
application was discontinued by the applicants
when they learned that the cable had been
severed by officials of the Department of Public
Works. But it appears that the cable was subse
quently reconnected or reactivated and the
applicants filed this new application. There is
no suggestion that the Department of Public
Works authorized or consented to such recon-
nection of the cable.
At the hearing of the present application on
July 8 it was also disclosed to the Court
1) that the applicant Weatherby has com
menced an action in the Supreme Court of
New Brunswick against the Province of New
Brunswick in respect of the attachment of the
same cable to a bridge owned by the
Province;
2) that consideration is being given by the
applicant to the institution of an action for an
injunction against the offending company in
respect of its broadcasting operations without
a licence; but such an action would likely
involve contentious legal issues, delays and
expenses;
3) that several hundred residents of the St.
Stephen-Milltown area have their television
sets connected to the rival system; and
4) that the Minister of Public Works is not
taking steps to order removal of the cable but
is considering what to do in the matter in
consultation with the CRTC.
Counsel for the applicants submitted that the
Minister of Public Works has a public duty to
effect removal of the cable; that by ordering it
to be disconnected he affixed himself with such
a duty; that in the circumstances he has a duty
to effect removal of the cable because it is
being used in an unlawful operation; that the
letter of May 9, 1972, from the legal counsel of
the CRTC to the executive assistant to the
Minister, although expressed in non-imperative
words, should be treated as a requirement that
the Department remove the cable; that the
prosecutions of the offending companies,
injunction proceedings, and other remedies are
less convenient, beneficial and effectual than
the requested order for mandamus; that Weath-
erby's licensed operation is suffering because of
the unlicensed competing operation and he is
suffering financial hardship by reason thereof;
that he has a right to seek protection of his
broadcasting licence by means of this applica
tion and that the requested relief should be
granted.
Counsel for the respondent submitted that the
Minister has no public duty to remove the
cable; that he is acting as a servant of and on
behalf of the Crown, and mandamus does not
lie against the Crown; that the requested man-
damus is not the most available, convenient and
effective remedy; and that there should at least
be resort to injunction proceedings before
resorting to mandamus.
Mandamus lies to secure the performance of
a public legal duty. It has been issued for a
variety of purposes, including cases where there
was a specific legal right and no specific legal
remedy or only a mode of redress that was less
convenient, beneficial and effectual.
The responsibility of the Minister of Public
Works in respect of the bridge derives from the
Public Works Act, R.S.C. 1970, c. P-38. Section
9(1) provides that the Minister has the manage
ment, charge and direction of bridges belonging
to Canada. The Act does not prescribe how the
Minister shall perform those functions. There is
a substantial discretionary element present for
such purposes. The presence of the cable
attached to the bridge is not per se dangerous or
obstructive or otherwise improper. It was not
improper for the Department to allow it to be
attached initially, subject to the conditions that
were imposed. The Minister has the authority to
enforce compliance with those conditions and
removal of the cable, and in the exercise of his
management of the bridge may choose to do so,
but I do not think that he has a public legal duty
to do so. That being my conclusion, I would
refuse to make the requested order of
mandamus.
It also appears to me that the essence of the
situation complained of by the applicants is the
carrying on of the broadcasting operation in
which the cable is used. The cable is only a
small element, even if an important one, in the
operation, and I doubt that the requested order
of mandamus directed to the Minister and
applying only to the cable is appropriate to deal
with the real problem.
In view of my dismissal of the application as
above indicated I do not consider it necessary
to deal with the contention that the Minister
was acting in respect of the bridge as a servant
of and on behalf of the Crown.
If I had not reached the foregoing conclusion
to dismiss the application I would think it
proper, before determining the matter, to
require notice of the application to be given to
the owner of the cable in order that it would
have an opportunity to be heard.
The application will be dismissed and the
respondent will be entitled to his costs.
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.