T-4275-82
City of Edmonton, a municipal corporation
(Applicant)
v.
Canadian Radio-television and Telecommunica
tions Commission (Respondent)
Trial Division, Jerome A.C.J.—Edmonton, June
18; Ottawa, October 15, 1982.
Judicial review — Prerogative writs — Certiorari — S. 18
application for certiorari, prohibition and mandamus quashing
decision prohibiting respondent from making decision until
applicant heard and requiring that intervention be heard
Applicant filed notice of intention to intervene in hearing, by
respondent, of QCTV application for amendment of licence -
Respondent acknowledged filing, invited applicant to attend at
public hearing and advised that final determination regarding
intervention would be made at that time — Applicant relying
on authority granted by resolution of its City Council in
pursuing intervention — Prior to hearing of QCTV applica
tion, Council resolution quashed by order of Queen's Bench —
At outset of hearing respondent ruled that, in view of order of
Queen's Bench, applicant lacked authority to act and therefore
would not be permitted to intervene — Whether in making
such ruling, respondent exceeded its jurisdiction under s. 19(7)
of Broadcasting Act and Rules 13 through 17 of the CRTC
Rules of Procedure — S. 19(7) gives respondent powers, rights
and privileges of superior court of record in respect of public
hearing held under that section — Rules 13-17 prescribe what
constitutes proper intervention into such hearing — Broad
casting Act, R.S.C. 1970, c. B-11, s. 19(7) — CRTC Rules of
Procedure, C.R.C., c. 375, ss. 13, 14, 15, 16, 17 — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
COUNSEL:
J. H. Pratt for applicant.
K. Katz for respondent.
F. Slatter and L. A. Desrochers (McCuaig
Desrochers, Edmonton) for Capital Cable
TV.
V. Lopatka (Rowand, Lopatka & Savich,
Edmonton) and L. Callaghan (c/o QCTV
Ltd., Edmonton) for QCTV Ltd.
SOLICITORS:
City of Edmonton Law Department, Edmon-
ton, for applicant.
K. Katz, c/o Canadian Radio-television and
Telecommunications Commission, Hull, for
respondent.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This application came on for
hearing at Edmonton, Alberta, on June 18, 1982.
Pursuant to section 18 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, the applicant
seeks an order granting a writ:
(a) of certiorari to quash a decision of the
Canadian Radio-television and Telecommunica
tions Commission (CRTC) prohibiting the
applicant from intervening in certain applica
tions;
(b) of prohibition to prohibit the CRTC from
making a decision until the applicant has been
heard;
(c) of mandamus to require the CRTC to hear
the applicant's intervention.
The facts are not complex and not in dispute.
On June 10, 1982, the CRTC convened a public
hearing of an application by QCTV Limited
(QCTV) to amend its licence by increasing its
maximum monthly fee and maximum installation
fee. On May 19, 1982, the solicitors for the City of
Edmonton had filed and served, upon the CRTC, a
notice of intention to intervene in the QCTV
application. The notice was acknowledged by the
CRTC by telex dated May 31, 1982, advising the
intervenor that the Commission would make final
rulings on the proposed intervention only at the
hearing. By letter dated May 28, 1982, the appli
cant QCTV formulated a reply to the intervention
by the City of Edmonton disputing certain allega
tions put forward by the City of Edmonton and
more importantly, calling into question the status
or authority under which the City of Edmonton
purported to appear. In this latter regard, the
Council of the City of Edmonton passed the fol
lowing resolution on May 25, 1982:
Be it resolved that the Council of the City of Edmonton,
representing its citizens, authorizes the City Solicitor to inter
vene in such applications on behalf of QCTV Ltd.'s and Capital
Cable T.V. Ltd.'s existing and future subscribers within the
City of Edmonton.
Upon application to the Court of Queen's Bench of
Alberta by one David S. Rowand, an order was
made on Wednesday, June 9, 1982, by the Hon
ourable Mr. Justice John A. Agrios quashing the
resolution.
When the CRTC convened its meeting in
Edmonton on June 10, 1982, the order of Mr.
Justice Agrios was brought to the attention of the
Commission and the Chairman invited representa
tions from QCTV and from the City of Edmonton
on the subject of the status of the intervenor and
after a brief adjournment to consider the argu
ments, the Chairman made the following ruling:
The Commission has carefully considered the order of Mr.
Justice Agrios dated June 9, 1982, and the arguments present
ed by Counsel for QCTV Ltd. and the arguments presented by
Counsel for the City of Edmonton, made this date June 10,
1982; and that it is the decision of the Commission that the
intervention as filed shall be withdrawn from the record and
accordingly, the City of Edmonton shall not be permitted to
appear as an intervenor in the application of QCTV Ltd. and
that the order of Mr. Justice Agrios be placed on the public
file.
The law concerning the responsibility of the
CRTC as it relates to public hearings and inter
vention by interested parties is set out in subsec
tion 19(7) of the Broadcasting Act' and in Rules
13 to 17 of the CRTC Rules of Procedure, C.R.C.,
c. 375, passed pursuant to the Broadcasting Act.
Subsection 19(7) is as follows:
19....
(7) The Commission has, in respect of any public hearing
under this section, as regards the attendance, swearing and
examination of witnesses thereat, the production and inspection
of documents, the enforcement of its orders, the entry of and
inspection of property and other matters necessary or proper in
relation to such hearing, all such powers, rights and privileges
as are vested in a superior court of record.
The relevant Rules are as follows:
13. Any person who is interested in an application, or who
wishes to lodge a complaint or make a representation that has
been determined by the Commission to constitute an interven
tion, other than the applicant, may file with the Commission an
intervention for the purpose of supporting, opposing or modify
ing the application.
' R.S.C. 1970, c. B-11.
14. (1) An intervention shall
(a) describe the interest of the intervener;
(b) contain a clear and concise statement of the relevant
facts and the grounds upon which the intervener's support
for, opposition to or proposed modification of the application
is based;
(c) be divided into paragraphs, numbered consecutively, eaci
of which shall be confined as nearly as possible to a distinct
subject matter;
(d) set forth the name, address and telephone number of the
intervener and his agent, if any;
(e) be signed by the intervener or his agent;
(/) where it is signed by the agent of the applicant, be
accompanied by a copy of the document whereby the agent
was appointed, which document shall be in the form set out
in Schedule I;
(g) contain a list of any documents that may be useful in
explaining or supporting the intervention;
(h) state whether the intervener wishes to appear; and
(i) be filed with the Commission together with a copy of the
documents described in paragraph (g).
(2) An intervener shall serve a true copy of his intervention
upon the applicant in relation to whom his intervention is made
and upon such other persons as the Commission may designate.
15. An intervention shall be filed and served at least 20 days
before the day fixed for the commencement of the public
hearing as set out in the notice thereof published pursuant to
paragraph 4(2)(b)(î) unless such notice or the Commission
directs otherwise.
16. Within 10 days after an applicant is served with a copy of
an intervention pursuant to subsection 14(2), he may mail or
deliver to the Secretary a reply thereto, a true copy of which he
shall serve upon the intervener.
17. (1) An applicant in his reply may object to an interven
tion as being insufficient, stating the grounds of his objection,
and may admit or deny any or all of the facts alleged in the
intervention.
(2) A reply shall be signed by the applicant or his agent and
where it is signed by an agent, it shall be accompanied by a
copy of the document whereby the agent was appointed, which
document shall be in the form set out in Schedule I.
The procedural rules contemplate disagreement
over what constitutes proper intervention and, in
section 13, clearly anticipate a preliminary ruling
by the CRTC. Subsection 19(7) of the Broadcast
ing Act equates the CRTC's authority in this
regard to that of a superior court. The issue here is
not whether the City of Edmonton is a properly
interested party, but rather whether it has author
ity to intervene. It is admitted by counsel, and in
any case it is trite law, that a municipal corpora
tion is a creature of statute and can act in a
representative capacity only by resolution or
by-law. Authority for intervention in this matter
was attempted by the Council of the City of
Edmonton in the form of a resolution. The resolu
tion was quashed by an order of the Court of
Queen's Bench of Alberta. At the time of the
CRTC hearing, no attack had been made upon
that order. This is not in the nature of an appeal,
of course, from the order of the Queen's Bench,
nor, more significantly, from the decision of the
CRTC. It is an application for the prerogative
relief contemplated by section 18 of the Federal
Court Act which must be based upon jurisdictional
error on the part of the Commission. Upon receipt
of the notice of desire to intervene on the part of
the City of Edmonton, the Commission acknowl
edged the notice, invited the City to appear at the
public hearing and indicated that a final ruling on
the propriety of the intervention would be made at
that time. At the opening of the hearing, having
been notified of the order of the Court of Queen's
Bench quashing the resolution which purported to
authorize the City's intervention, the Commission
received submissions from both parties and, in due
course, made a preliminary ruling that the City of
Edmonton would not be permitted to appear. In so
doing, the CRTC was acting entirely within the
jurisdiction and pursuant to the authority con
ferred upon it by the legislative provisions referred
to above.
Accordingly, the application is dismissed with
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.