T-2093-88
Federal Liberal Agency of Canada and Red Leaf
Communications Limited (Plaintiffs)
v.
CTV Television Network Ltd., Canadian Broad
casting Corporation, Global Telecommunications
Limited (Defendants)
INDEXED AS: FEDERAL LIBERAL AGENCY OF CANADA v. CTV
TELEVISION NETWORK LTD.
Trial Division, Martin J.—Ottawa, November 7
and 8, 1988.
Federal Court jurisdiction — Trial Division — Canada
Elections Act imposing statutory obligation on defendant net
works to make broadcasting time available to political parties
— Court having jurisdiction to hear application for interlocu
tory injunction under Federal Court Act, s. 23 — Not merely
matter of contract between parties — Jurisdiction not other
wise specifically assigned — Broadcasting Arbitrator's deci
sion final only with respect to allocation of times, not content
of advertising.
Broadcasting — Partisan political broadcasting — Limita
tion on powers of Broadcast Arbitrator under Canada Elec
tions Act — CRTC without power to censor such advertising
— Networks may not frustrate parties' statutory right to have
broadcasting time by refusing material submitted.
Elections — Political broadcasting — Function of Broad
cast Arbitrator under Canada Elections Act not extending to
content of advertising — CRTC lacking authority to censor
advertising — Networks under obligation to broadcast adver
tisements submitted unless able to show cause for relief
therefrom.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Broadcasting Act, R.S.C. 1970, c. B-11, ss. 3, 15.
Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss.
18, 23.
Federal Court Rules, C.R.C., c. 663, R. 469.
CASES JUDICIALLY CONSIDERED
APPLIED:
Turmel v. Canadian Radio-television and Telecommuni
cations Commission, T-2884-83, Walsh J., judgment
dated 16/12/83, F.C.T.D., not reported.
COUNSEL:
William T. Green, Q.C. and Claude Brunet
for plaintiffs.
Edward A. Ayers, Q. C. and Gary A. Maavara
for defendant CTV Television Network Ltd.
Gordon F. Henderson, Q.C. and Rose-Marie
Perry, Q.C. for defendant Canadian Broad
casting Corporation.
William T. Houston for defendant Global
Communications Limited.
SOLICITORS:
Beament, Green, York, Manton, Ottawa, for
plaintiffs.
Borden & Elliot, Toronto, for defendant CTV
Television Network Ltd.
Gowling & Henderson, Ottawa, for defendant
Canadian Broadcasting Corporation.
Fraser & Beatty, Ottawa, for defendant
Global Communications Limited.
The following are the reasons for order ren
dered in English by
MARTIN J.: The defendants, CTV Television
Network Ltd. and Canadian Broadcasting Corpo
ration, object to the hearing of this application on
the grounds that this Court has no jurisdiction.
I agree with Mr. Green that service of the
statement of claim is not a condition precedent to
the application for an interlocutory injunction
because that can be made at any time under Rule
469 [Federal Court Rules, C.R.C., c. 663].
I also accept his argument that he did not add
the other networks or broadcasters as defendants
for the simple reason that they did not refuse to
broadcast his clients' advertising.
I accept Mr. Henderson's argument that I have
no jurisdiction to act under section 18 of the
Federal Court Act [R.S.C. 1970 (2nd Supp.),
c. 10] because the defendants are not federal
boards, commissions or tribunals.
However I do not accept his argument that I
have no jurisdiction because this is a matter of
contract between the parties. Nor do I accept his
suggestion that Exhibit G to Mr. Lutfy's affidavit
forms the basis of that agreement. Exhibit G is
simply an operating agenda setting out such details
as make-up, times of arrival, photo opportunities
and the height of the leaders' lecterns for the
debate. It is more a set of agreed ground rules
governing the debate and not an agreement cover
ing ownership or proprietary rights to the broad
cast itself.
Nor do I accept his submission that the October
24, 1988 letter from Canadian Broadcasting Cor
poration to the Secretary General of the Liberal
Party of Canada forms the basis of an agreement
between the defendant networks and the plaintiffs.
Whether or not at all and, if so, to what extent a
unilateral declaration by one party can form the
basis of an agreement among several is a matter
for argument. The letter appears to me simply to
be an assertion by the networks that they own
copyright in the party leader debates. Whether
they do or not and the results which follow from
such ownership, if it can be established, is a matter
for argument.
Mr. Ayers submits that I have no jurisdiction
under section 23 of the Federal Court Act because,
by reason of sections 3 and 15 of the Broadcasting
Act [R.S.C. 1970, c. B-11], the jurisdiction to deal
with the issue raised by the plaintiffs has been
specifically assigned to the Canadian Radio-televi
sion and Telecommunications Commission
(CRTC) or, in the alternative, to the Broadcasting
Arbitrator who has already dealt with the matter
by issuing his final and binding guidelines which
form Exhibit B to Mr. Kotcheff's affidavit.
As I read the Canada Elections Act [R.S.C.
1970 (1st Supp.), c. 14] the Broadcast Arbitrator's
function is to allocate times for partisan political
broadcasting among the several political parties in
an equitable manner. It is correct to say, as Mr.
Ayers said, that his decision is final and binding
but it is only final and binding with respect to the
allocation of times. He is not authorized to deal
with the content of the advertising which the
political parties present for broadcasting at the
times allocated to them.
Neither is the CRTC authorized to act as censor
for such advertising. I refer you to Mr. Justice
Walsh's decision of December 16, 1983 in the
John C. Turmel [Turmel v. Canadian Radio-
television and Telecommunications Commission,
T-2884-83, F.C.T.D., not reported] action against
the CRTC, at page 8, in which he relied upon the
case of National Indian Brotherhood v. Juneau
(No. 3), [1971] F.C. 498 (T.D.), at page 513 to
conclude that no such authority vested in CRTC in
the following terms:
At page 513 it was pointed out that in reading the Act as a
whole it is difficult to conclude that Parliament intended to give
the Commission the authority to act as a censor of programmes
to be broadcast or televised. The judgment stated:
If this had been intended, surely provision would have been
made somewhere in the Act giving the Commission authority
to order an individual station or a network, as the case may
be, to make changes in a programme deemed by the Com
mission, after an inquiry, to be offensive or to refrain from
broadcasting same. Instead of that, it appears that its only
control over the nature of programmes is by use of its power
to revoke, suspend or fail to renew the licence of the offend
ing station.
Without deciding, or rather prejudging, the
several parts of the plaintiffs' motion except for
paragraph (a) i.e. that the special time for hearing
this motion be set, and I set that time for this
morning immediately following my comments, it
seems to me that the statutory right of political
parties to have broadcasting time assigned to them
will be completely frustrated if the networks or
broadcasters arbitrarily or capriciously refuse to
broadcast the advertising which the political par
ties present to them for broadcast.
If the broadcasters or networks have a statutory
obligation to provide broadcasting time it follows,
in my view, that it is just as much a statutory
obligation that they must, unless they can demon
strate a very clear legal reason for not doing so,
broadcast the material with which they are pre
sented by those respective parties.
Because, in my view, the statutory obligation of
the defendant networks under the Canada Elec
tions Act to make broadcasting time available for
partisan political advertisements carries with it the
obligation to broadcast the advertisements, or in
the alternative to show cause why they should be
relieved of the obligation to broadcast them, I find
that this Court has the jurisdiction to hear this
application under the provisions of section 23 of
the Federal Court Act.
If the plaintiffs can persuade me to grant the
relief requested under paragraphs (b) and (c) of
the application I will proceed with the merits of
the application today. In this respect I will hear
arguments from counsel on paragraphs (b) and (c)
(I presume that the order requested under para
graph (d) has been abandoned because the action
has been commenced) and will proceed on the
balance of the application only if the plaintiffs are
successful on paragraphs (b) and (c).
In the interim the motions of the defendants,
Canadian Broadcasting Corporation and CTV
Television Network Ltd., to dismiss the plaintiffs'
application for want of jurisdiction of the Court to
hear it will be dismissed with no order as to 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.