CRTC Jurisdiction Over Broadcast Content

The Toronto municipal election earlier this year has attracted nation-wide scrutiny given the changes to council size and invocation of s. 33 in Bill 31. In an election already marred by confusion and uncertainty, there has also been some controversy around the candidates involved.

One mayoral candidate, Faith Goldy, who has received a disproportionate amount of attention online, is described by The Globe as “a troubling extremist” and “manipulative monomaniac.” She is generally assumed to reflect the views of the growing “alt-right” across Canada, and as a result, many debate organizers have deliberately excluded her from events.

Goldy’s online presence may in part be also attributable to her difficulty purchasing advertising time on mainstream television. She contacted Cable Pulse 24 (“CP24”), a local television station owned by Bell Media Inc., in August 2018 to purchase some ad time, but was told on Sept. 26 that they would be unable to do so. No explanation was provided, and a full refund was offered.

As a result, Goldy filed an application with the Superior Court of Justice under rule 14.05(3)(d) of the Rules of Civil Procedureseeking a declaration that Bell should allocate time for her partisan political advertisements. The decision in Bazos v. Bell Media Inc., released prior to the election, declined to assume jurisdiction of the matter. Instead, Justice Cavanaugh indicated the appropriate venue for the matter was the Canadian Radio-television and Telecommunications Commission (“CRTC”).

Goldy claimed that Bell had violated the regulations under the Broadcasting Act, specifically the Television Broadcasting Regulations and the Discretionary Services Regulations. Both state that a broadcaster should provide time on “an equitable basis” to political candidates and parties.

In 1988, the CRTC held a public consultation on how to handle election campaign broadcasting. Their public notice from this time states,

It is the broadcaster’s duty to ensure that the public has adequate knowledge of the issues surrounding an election and the position of the parties and candidates. The broadcaster does not enjoy the position of a benevolent censor who is able to give the public only what it “should” know. Nor is it the broadcaster’s role to decide in advance which candidates are “worthy” of broadcast time.
From this right on the part of the public to have adequate knowledge to fulfill its obligations as an informed electorate, flows the obligation on the part of the broadcaster to provide equitable — fair and just — treatment of issues, candidates and parties. It should be noted that “equitable” does not necessarily mean “equal”. But, generally, all candidates and parties are entitled to some coverage that will give them the opportunity to expose their ideas to the public.

The Act itself indicates that Canadian broadcasting should be governed with a number of factors, including taking into account regional concerns and needs. Relevant to this factor was evidence from Bell that over 80 complaints in writing, over 15 complaints by voicemail, and a number of social media complaints indicating that Bell should not air ads from Goldy.

Bell relied on Mahar v. Rogers Cablesystems Limited, which held that assumption of jurisdiction by provincial courts would usurp the role of the Federal Court of Appeal, which is the body indicated under the statute to which the statutory mandate to review decisions of the CRTC. A number of cases subsequently followed this holding, where Justice Sharpe stated,

Assumption of jurisdiction by this court would not only evade the C.R.T.C., it would also remove the case from the authority of the Federal Court of Appeal which is mandated to review the C.R.T.C. The net result would be to disrupt the scheme envisaged by Parliament for the interpretation of the regulations, a scheme which includes scrutiny by a court exercising jurisdiction akin to that of a superior court.

Despite some of her more colourful statements in the past, and perhaps even the controversy on the campaign trail, there was no indication that the ads Goldy sought to air on CP24 contained any problematic or controversial content.

The reasoning from Mahar that Justice Cavanagh drew on the most related to s. 3(2), which spells out the regulation and supervision of broadcasting in Ontario. Justice Sharpe in Mahar explained the importance of this section as follows,

In my view, that section establishes, in effect, a principle of exclusivity. It clearly states Parliament’s determination that the policies of the Act will best be achieved if a single independent public authority, namely, the C.R.T.C., is established to deal with all matters relating to those policies. The C.R.T.C. is a specialized body with particular expertise in the area. In my view, if this court were to assume jurisdiction, it would violate the spirit, if not the letter, of s. 3(2).

The statutory mandate of the C.R.T.C. is fortified by the case-law which has consistently given a broad and generous interpretation to its powers and authority… Each of those cases indicates the broad and generous interpretation the Supreme Court of Canada has accorded to the mandate of the C.R.T.C.

I note as well that in the case at bar, there really is no issue as to the authority of the C.R.T.C. given the concession made by the applicant that the C.R.T.C. could deal with all aspects of the applicant’s claim.

Justice Cavanagh applied the test from Allarco Entertainment 2008 Inc. v. Rogers Communications Inc., which followed the decision in B & W Entertainment Inc. v. Telus Communications Inc. and Weber v. Ontario HydroIn Allarco, the court provided a stay in the Superior Court proceedings pending a CRTC decision. Justice Pepall stated,

[25] …The court should first determine the substance of the tribunal’s jurisdiction. The essential character of the dispute should then be examined to see if it falls within the tribunal’s exclusive jurisdiction. Even if it does not, the court should determine whether reason exists for the tribunal to determine the dispute nonetheless.

[26] As stated by the Supreme Court of Canada in Weber, the exclusive jurisdiction of the tribunal is subject to the residual discretionary power of courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal. “It might occur that a remedy is required which the arbitrator is not empowered to grant. In such a case, the courts of inherent jurisdiction in each province may take jurisdiction . . . What must be avoided, to use the language of Estey J. in St. Anne Nackavic (at p. 723), is a ‘real deprivation of ultimate remedy’.”
[citations omitted]

Justice Cavanagh applied this residual discretion in this case to decline assuming jurisdiction,

[71] It is clear that the area with which the dispute between Ms. Goldy and Bell on this application involves the interpretation and enforcement of s. 8 of the Television Broadcasting Regulations and s. 6(1) of the Discretionary Services Regulations. I agree with the conclusion of Sharpe J. in Mahar that s. 3(2)of the Act, particularly when read together with s. 5 of the Act, establishes a “principle of exclusivity” by which Parliament expressed that the policies of the Act will best be achieved if a single independent public authority, the CRTC, is established to deal with all matters relating to those policies and that if this court were to assume jurisdiction in this area, it would violate the spirit, if not the letter, of s. 3(2). The conclusion reached by Sharpe J. in Mahar applies directly to this case, and I rely upon this decision to answer the first question with respect to the jurisdictional issue before me.

Goldy also made a number of alternative claims, such as declaratory relief under s. 24(1) of the Charter. Justice Cavanagh concluded that this was a matter of concurrent jurisdiction between the CRTC and the court, and that the court should not exercise its jurisdiction so that the entire application could be heard by the CRTC.

Of course one of the distinguishing features of this case was the context of the ongoing election. Goldy demonstrated that she acted in a prompt manner in taking action against Bell, including seeking and retaining counsel, and expressed concerns over the inability to obtain relief from the CRTC in time for the election. The court did not give effect to this argument, pointing to a handful of CRTC decisions that were decided in an expedited manner given the circumstances and thereby making the injunctive relief sought by Goldy less essential to her claim.

Given that the essential character of her s. 2(b) claims were not found under the Act, Goldy claimed that this claim was more squarely addressed by the court. Justice Cavanagh stated,

[76] I disagree with Ms. Goldy’s submissions in this regard. First, administrative tribunals, including the CRTC, must act consistently with the Charterand its values when exercising their statutory functions: Conway at para. 78. Second, under the Act, the CRTC is required to regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy set out in s 3 (1). Section 3(1) declares as the broadcasting policy for Canada numerous broad objectives including, for example, that the Canadian broadcasting system should “serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada”, “encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian attitudes, opinions, ideas, values and artistic creativity”, “serve the needs and interests, and reflect the circumstances and aspirations, of Canadian men, women and children, including equal rights, the linguistic duality and multicultural and multiracial nature of Canadian society and the special place of aboriginal peoples within that society”, and “be readily adaptable to scientific and technological change”.

The 1988 public notice that Goldy referred to only helped illustrate further that the issues of electoral policy, democratic rights, the freedom of expression of candidates and the freedom of conscience of voters, as directly within the regulatory functions of the CRTC.

Finally, Justice Cavanagh noted that the urgency and access to justice arguments raised by Goldy could have been addressed if the application was made to the CRTC, and that Goldy could have sought advertising on other media channels while her dispute was pending without prejudicing her position. This was not the circumstances where the court should grant an injunction in rare circumstances that involve a truly dire emergency.

The costs decision, released this week, awarded $43,117.90 against Goldy, rejecting her submissions that their case was a pubic interest one,

[13] The jurisdictional issue that was before me was separate from the merits of the Applicant’s application. In the reasons for my decision on the jurisdictional issue I held at para. 72 that the decision of Sharpe J. in Mahar applied directly to this case and concluded that the area with which the dispute between the Applicant and the Respondent is concerned is within the exclusive jurisdiction of the CRTC.

[15] Given the decision in Mahar and the cases that had followed it, the jurisdictional issue was not a novel one, and involved the application of settled jurisprudence to the circumstances of this case. In relation to the jurisdictional issue that was before me, the Applicant does not qualify as a public interest litigant.

This case, like the Charter challenges to Bill 5 under this election, was decided on an expedited fashion given the timelines involved.

It may provide some insight into deference provided to expert tribunals, though the revelation that the environment and land tribunals, the social justice tribunals and the safety, licensing appeals and standards tribunals will all be collapsed into a single body called “Tribunals Ontario” seems to defy the concept of a subject matter expert decision-maker adjudicating over a specialized body with particular expertise.

The question of how we deal with the rise of hatred and intolerance in a free and democratic society will remain one of the pressing challenges we have to face in the years to come.

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