T-5329-80
John C. Turmel (Plaintiff)
v.
Canadian Radio-television and Telecommunica
tions Commission (Defendant)
Trial Division, Walsh J.—Ottawa, November 20
and 26, 1980.
Prerogative writs — Mandamus — Motion for an order of
mandamus that defendant obtain written and graph
algorithms used by television and radio stations for the allo
cation of time available to political parties — Whether or not
defendant has a duty to obtain information from radio or
television stations to be conveyed to a member of the public —
Application dismissed — Broadcasting Act, R.S.C. 1970, c.
B- II, ss. 3(d), 16(1)(b)(iii) — Television Broadcasting Regula
tions, C.R.C. 1978, Vol. IV, c. 381, s. 9(1),(2) — Radio (A.M.)
Broadcasting Regulations, C.R.C. 1978, Vol. IV, c. 379, s.
6(1),(2).
APPLICATION.
COUNSEL:
John C. Turmel on his own behalf.
Robert J. Buchan for defendant.
SOLICITORS:
John C. Turmel, Ottawa, on his own behalf.
Johnston & Buchan, Ottawa, for defendant.
The following are the reasons for judgment
rendered in English by
WALSH J.: Plaintiff applies by originating
notice of motion for an order of mandamus that
the CRTC obtain in writing and in graph the
algorithms used by CJOH, CFRA and CKOY for
the allocation of the time available (presumably
for free election broadcasts although the applica
tion itself does not so state). While the accom
panying affidavit refers both to the February 1980
general election in which plaintiff ran as an
independent candidate and the recent Ottawa
mayoralty election in November in which he ran
for mayor, his principal grievance appears to be
with respect to the latter election. As an engineer
and mathematician he is obsessed with the use of
graphs and formulas, which most probably the
television and radio stations themselves do not use,
although according to him they should, but what it
really comes down to is that he wants the defend
ant to obtain information from the said radio and
television stations as to how many minutes of time
were allotted to each candidate. Possibly, armed
with such information, he might then consider
bringing some form of action against the stations
in question, who are not however parties to the
present proceedings.
It is fundamental law that mandamus lies to
secure the performance of a public duty in the
performance of which the applicant has sufficient
legal interest. The applicant must show that he has
demanded the performance of the duty and that
performance of it has been refused by the author
ity obliged to discharge it. It is therefore necessary
for applicant to show that what he seeks is a duty
which the CRTC is obliged to discharge. Nowhere
in the Broadcasting Act, R.S.C. 1970, c. B-11 or
in the Television Broadcasting Regulations,
C.R.C. 1978, Vol. IV, c. 381, or in the Public
Notice published on January 9, 1980, with respect
to the federal election, all of which were produced
by defendant is there any requirement that the
CRTC is under an obligation to obtain from regu
lar radio or television stations information to be
conveyed to a member of the public, even one such
as plaintiff herein who has sufficient legal interest.
As he concedes in argument, the objective of his
proceedings is to force the CRTC to exercise more
control over radio and television stations in con
nection with the allocation of free time for what
might be described as "minor candidates".
Another principle is that a mandamus will not be
issued to order a body as to how to exercise its
jurisdiction or discretion. See Judicial Review of
Administrative Action, S. A. de Smith, 2nd ed.,
page 565 in which he states:
In one sense, every body entrusted with powers of decision is
under a duty to apply the law correctly; but not all errors of law
are redressible by mandamus.
As previously indicated Mr. Turmel's affidavit
starts off with his complaint about the allocation
of time in the federal election in February. He
wrote a very strongly worded letter to CJOH on
February 15 setting out his mathematical theories,
demanding an apology because his party had not
got 62 seconds of time. On the same date a reply
was written to him by Bushnell Communications
Limited stating that they were well aware of the
equitability requirements of the legislation and
Regulations and pointing out that he had already
been given an accurate, lengthy and adequate
explanation of their position. On February 26 he
wrote to Mr. Mahoney of the CRTC referring to
this letter of February 15 and reiterating that
equitable means "just and fair", and making some
gratuitous comments about the spelling and math
ematics of the writer of the Bushnell Communica
tions Limited letter, and asking the CRTC to
obtain in writing in graph form the algorithms
determining the allocation of the time. On April 1,
1980, he again wrote Mr. Mahoney about obtain
ing this from CJOH even suggesting that it should
reply as he has "bets that depend on the outcome
of this investigation". No reply was received in
writing until just before the hearing of his applica
tion when a letter dated November 14, 1980 from
Mr. Mahoney refers to Mr. Turmel's letters of
February 26 and April 1 to him, and February 15,
1980, to the CJOH Management. It states that it
was unfortunate that a written response was not
provided previously by the Commission but that it
had been explained to him in telephone conversa
tions on February 13 and 14, and in a face-to-face
conversation when he delivered the copy of the
CJOH-TV letter, that the Commission does not
agree that "equitable" time necessarily means
"equal" time. The letter concludes "The Elections
Committee of the CRTC reviewed your complaint
and the CJOH-TV response at that time and was
of the view then, and confirms now that it finds no
reason to conclude that you received an inequit
able allocation of time in the broadcast in
question."
With respect to the more recent Ottawa civic
election, Mr. Turmel complains that on October
25, 1980, CJOH announced its intention to give
"their favorites" 10 minutes each of live time to
express their views and to give Mr. Alphonse
Lapointe and himself only 1 minute, 45 seconds to
express their views (and that on tape) on the basis
that they were "minor probability candidates". He
also complains that although he had announced his
candidacy in early August it was only reported by
CJOH on October 20, two and one-half months
later. He complains that two radio stations also
treated him in the same way: Hal Anthony of
CFRA gave Pat Nicol and Marion Dewar two
hours of live time each, giving Turmel only two
minutes and Lapointe none; Lowell Green of
CKOY gave Pat Nicol and Marion Dewar his
whole show and gave Lapointe and Turmel no
time. He states that the affidavit is made in sup
port of the application for the mandamus requir
ing CRTC to obtain in graph and in writing the
algorithms used by these stations for the allocation
of the time available in an effort to determine if
there is any legitimate basis to his complaint that
he is not treated fairly.
It is unheard of to make a mandamus order to a
public body requiring it to obtain information
which it is not obliged by law to obtain to enable
the person seeking the order to determine whether
he has a legitimate complaint that he was not
treated fairly by a third person, even if that third
person is to a certain extent subject to the jurisdic
tion and control of the body against which the
mandamus is sought. Section 15 of the Broadcast
ing Act gives the Commission power to regulate
and supervise all aspects of the Canadian broad
casting system with a view to implementing the
broadcasting policy enunciated in section 3 of this
Act, subject to the Radio Act, R.S.C. 1970, c. R-1
and any directions to the Commission from the
Governor in Council under the authority of the
Broadcasting Act. Section 3(d) of the Broadcast
ing Act reads as follows:
3. It is hereby declared that
(d) the programming provided by the Canadian broadcasting
system should be varied and comprehensive and should pro
vide reasonable, balanced opportunity for the expression of
differing views on matters of public concern, and the pro
gramming provided by each broadcaster should be of high
standard, using predominantly Canadian creative and other
resources;
Section 16(1) (b) gives the Commission authority
to "make regulations applicable to all persons
holding broadcasting licences, or to all persons
holding broadcasting licences of one or more
classes" and subparagraph (iii) reads as follows:
16. (1)(b)...
(iii) respecting the proportion of time that may be devoted
to the broadcasting of programs, advertisements or
announcements of a partisan political character and the
assignment of such time on an equitable basis to political
parties and candidates,
It is the Commission's interpretation of the words
"equitable basis" which applicant complains of.
Section 9 of the Television Broadcasting
Regulations' reads as follows:
9. (1) Each station or network operator shall allocate time
for the broadcasting of programs, advertisements or announce
ments of a partisan political character on an equitable basis to
all parties and rival candidates.
(2) Political programs, advertisements or announcements
shall be broadcast by stations or network operators in accord
ance with the directions of the Commission issued from time to
time respecting
(a) the proportion of time which may be devoted to the
broadcasting of programs, advertisements or announcements
of a partisan political character; and
(b) the assignment of time to all political parties and rival
candidates.
Similarly section 6 of the Radio (A.M.) Broad
casting Regulations 2 reads as follows:
6. (I) Each station or network operator shall allocate time
for the broadcasting of programs, advertisements or announce
ments of a partisan political character on an equitable basis to
all parties and rival candidates.
(2) Political programs, advertisements or announcements
shall be broadcast by stations or network operators in accord
ance with such directions as the Commission may issue from
time to time.
Again it is noted that the word "equitable" is used.
Certainly if it had been intended that all candi
dates be given equal time the word would have
been "equal".
In connection with the federal election public
notice was given, as previously indicated, by the
Commission which specified the time allocation to
the various parties. It states:
In arriving at these figures, the Commission first allocated six
(6) minutes to each of the registered parties. The remaining
time was divided among those parties with members of the
House of Commons. The division was based on three factors:
the percentage of popular vote in the last election, the number
of seats in the House at dissolution and the number of candi
dates fielded in the last election. In this calculation each of the
first two factors was given double weight and the third, single.
' C.R.C. 1978, Vol. IV, c. 381.
2 C.R.C. 1978, Vol. IV, c. 379.
The Commission however wishes to emphasize that while those
factors were considered relevant under the present circum
stances, the above allocation is for purposes of the current
election and should not necessarily be taken as a precedent for
future elections, where other factors and their relative impor
tance may lead to a different distribution.
This appears to be a reasonable approach, in fact a
generous approach with respect to certain parties
which did not have the slightest chance of electing
any members but nevertheless were allowed six
minutes each. It is evident that it recognized the
principle however that "equitable" time does not
mean "equal" time.
It is also evident that similar regulations could
not be applicable to a municipal election where the
candidates do not (officially in any event), repre
sent parties but run as individuals, and many of
them have never run before, and where there may
be ten or more candidates in a given ward for
alderman, or running for mayoralty. While there is
no doubt that candidates who have little or no
chance of success inevitably suffer prejudice by not
being given equal time, some common sense distri
bution of the time available has to be made, if for
no other reason, in the interest of the listening
public which would not tolerate, in a twenty
minute broadcast for example, the allocation of
only two minutes to each of the two leading candi
dates, with a similar amount of time being allotted
to perhaps eight other candidates with no hope of
winning, and who may have ulterior personal
motives for running. In stating this I wish to make
it clear that I am not making any criticism of Mr.
Turmel who has been a candidate in many elec
tions, but merely generalizing why equal time
cannot be allocated to each and every candidate.
The danger in this is of course that it sets up the
individual radio or television station as the arbiter
and judge of which candidates are serious and
worth hearing, which is undoubtedly not demo
cratic. Mr. Turmel seems to feel that this author
ity should be exercised by the CRTC, and that it
should direct the individual stations how the time
should be allocated. As stated it did so for the
federal election and could probably do the same
for a provincial election but it is difficult to see
how this authority could be exercised in a munic
ipal election. In any event it is not the function of
the Court to reconsider or criticize the merits of
the decisions of the CRTC, and no mandamus
should be issued against it provided it exercises the
authority delegated to it by Parliament in accord
ance with the Act and Regulations. That it has
done so is apparent from the fact that it has
reviewed Mr. Turmel's complaint and the CJOH-
TV response to it (in connection with the federal
election) and has confirmed that it finds no reason
to conclude that he received an inequitable alloca
tion of time. Whether it has done the same in
connection with the civic election is not apparent
from the material on the record, but in any event,
this is not what the application for mandamus
seeks, since the application merely requires the
Commission to obtain certain information from
stations subject to supervision for such use as
plaintiff may wish to make of it.
The application for mandamus is clearly inad
missible and must be dismissed, but defendant has
not insisted on costs in connection with such
dismissal.
ORDER
Plaintiff's application for mandamus against
defendant is dismissed without 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.