CRTC v. CTV Television Network Ltd. et al.

National Action Committee on the Status of Women, Association of Canadian Television and Radio Artists, Mr. Kevin Hopper, the 1812 Committee, Joint Broadcast Committee, Association of Canadian Advertisers Inc./Institute of Canadian Advertising, the Canadian Film & Television Association, Council of Canadian Filmmakers, Interchurch Communications, the Anglican Church of Canada, the Association of Television Producers and Directors (Toronto) Respondents.

CTV Television Network Limited Appellant and cross-respondent;

and

Canadian Radio-Television and Telecommunications Commission Respondent and cross‑appellant;

and

National Action Committee on the Status of Women, Association of Canadian Television and Radio Artists, Mr. Kevin Hopper, the 1812 Committee, Joint Broadcast Committee, Association of Canadian Advertisers Inc./Institute of Canadian Advertising, the Canadian Film & Television Association, Council of Canadian Filmmakers, Interchurch Communications, the Anglican Church of Canada, the Association of Television Producers and Directors (Toronto) Respondents.

[Page 531]

Administrative law—CRTC jurisdiction—Condition on licence renewal—Program control—Whether condition subordinated to the regulation-making power—Whether CRTC failed to give proper notice of particular condition—Executive committee members participating in decision on renewal—Broadcasting Act, R.S.C. 1970, c. B-11, ss. 3, 12, 15, 16, 17(1), 19(3), 19(4)—Canadian Radio-television and Telecommunications Commission Act, 1974-75-76 (Can.), c. 49, s. 12.

CTV Television Network applied to the CRTC for the renewal of its broadcasting licence. The CRTC granted the licence on the condition that a specified number of hours of original new Canadian drama be presented during the 1980-81 and 1981-82 seasons. On CTV’s appeal, the Federal Court of Appeal held that the CRTC had jurisdiction to impose the condition but set aside the CRTC’s decision because of a breach of natural justice since CTV was given inadequate notice of the particular condition being considered and therefore was denied a fair opportunity to make a representation on it. CRTC appealed. CTV cross‑appealed, seeking unconditional confirmation of the licence renewal.

Held: The appeal of the CRTC should be allowed. The cross-appeal of CTV Television Network should be dismissed.

The broad terms of s. 17(1) authorized the Executive Committee to impose conditions related to the circumstances of the licensee and designed to further the objects of CRTC set out in s. 15 and to implement the broadcasting policy enunciated in s. 3 of the Act. The subject matter of this condition was outside the s. 16(1)(b)(i) regulation-making power, and until the power to make regulations under s. 16(1)(b)(ix) has been exercised the power under s. 17 is not ousted.

There was no breach of natural justice. It was sufficient that notice be given of discussions for increased Canadian drama offerings without particulars. The CRTC was not required to give an advance indication of its probable decision.

[Page 532]

The Executive Committee’s decision was not defeasible simply because several and various absences occurred during the hearings, so long as there was a quorum of the Executive Committee involved in the decision. The statute clearly envisages Executive Committee members not on the panel participating in the decision on renewal.

Brant Dairy Co. v. Milk Commission of Ontario, [1973] S.C.R. 131; CKOY Ltd. v. The Queen, [1979] 1 S.C.R. 2; Mehr v. Law Society of Upper Canada, [1955] S.C.R. 344, distinguished; R. v. Board of Broadcast Governors and the Minister of Transport (1962), 33 D.L.R. (2d) 449, considered; Capital Cities Communications Inc. v. C.R.T.C., [1978] 2 S.C.R. 141, referred to.

APPEAL from a judgment of the Federal Court of Appeal, [1981] 2 F.C. 248, (1980) 34 N.R. 50, setting aside a decision of CRTC, CRTC 79-453. Appeal of CRTC allowed. Cross‑appeal of CTV Television Network dismissed.

Thomas G. Heintzman, Q.C., David Hamer and Avrum Cohen, for the appellant and cross‑respondent the Canadian Radio-Television and Telecommunications Commission.

Edwin A. Goodman, Q.C., and M.K. Robinson, for respondent and cross-appellant the CTV Television Network Limited.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This appeal by the Canadian Radio-Television and Telecommunications Commission (hereinafter referred to as CRTC) and cross-appeal by CTV Television Network Limited (hereinafter referred to as CTV) arise from a judgment of the Federal Court of Appeal of November 10, 1980 which set aside a decision of CRTC of August 3, 1979, renewing CTV’s network broadcasting licence for a three-year period from September 30, 1979. The renewal was upon the condition (stated in the licence) “that 26 hours of original new Canadian drama be presented during the 1980-81 broadcasting year, and 39 hours of original new Canadian drama be presented during the 1981-82 season”. CTV attacked the imposition of this condition on grounds that will be developed later in these reasons.

[Page 533]

The Federal Court of Appeal [1981] 2 F.C. 248 held that the licence renewal was not severable from the condition and that accordingly there should be a reference back to CRTC but subject to a time period for seeking and obtaining a temporary licence pending final determination of the renewal application.

CTV failed substantially in its challenge to the conditioned licence renewal, succeeding only on one point which was held by the Federal Court of Appeal to be sufficient in itself to set aside the decision of the Executive Committee of CRTC made pursuant to s. 17(1)(c) of the Broadcasting Act, R.S.C. 1970, c. B-11. Although the Federal Court of Appeal concluded, after a review of relevant material, including proceedings at previous licence renewal applications, and written representations by an intervenor, the Council of Canadian Filmmakers, that CTV had ample notice that the imposition of a condition respecting the production of Canadian drama was likely as a term of renewal of CTV’s licence it nonetheless also held that there was a failure of natural justice in the failure to give adequate notice, either written or oral, of the particular condition being considered or of even the outlines of it or its limits so as to give CTV a fair opportunity to make representations with respect to it. This was not a case, according to the Federal Court of Appeal, of requiring notice in advance of an intended decision to a party to be affected by it but rather of showing fairness in respect of a contemplated condition which was not spelled out by law even if it was authorized by the governing statute.

In the result, the conditioned renewal decision was set aside. The formal judgment of the Federal Court of Appeal was as follows:

IT IS THIS DAY ORDERED AND ADJUDGED that the said appeal be and it is allowed, that the decision of the Canadian Radio-Television and Telecommunications Commission, dated the 3rd day of August, 1979, renewing the appellant’s network broadcasting licence for a period of three years from September,

[Page 534]

1979, be and it is set aside and that the matter of the appellant’s application for renewal of its network broadcasting licence be and it is referred back to the Canadian Radio‑Television and Telecommunications Commission for reconsideration and redetermination, according to law after the appellant has been afforded a reasonable opportunity to produce evidence and make representations with respect to conditions, if any, to be imposed on the appellant’s licence requiring the presentation of Canadian drama and after such evidence and representations have been duly and fairly considered by the Commission and by its Executive Committee.

There was another point taken by CTV on which the Federal Court of Appeal expressed some doubt but held it to be irrelevant in view of its above-mentioned conclusion. That point, which was pressed in this Court by CTV, was that the full panel of members assigned to hear the licence renewal application was not present throughout the public hearing and, indeed, at one point when the subject of Canadian drama was under discussion only two members of the Executive Committee were present. I shall come to the detail on this issue later and propose now to consider the statutory framework attending the matters in contest between CRTC and CTV. The former appeals against the order of the Federal Court of Appeal on the sole ground on which it was made, but CTV seeks to support the order on wider grounds and, indeed, seeks to have the licence renewal confirmed without the challenged condition.

The Statutory Framework

Section 3 of the Broadcasting Act enunciates a broadcasting policy for Canada, and it is sufficient for the purposes of this appeal to refer to clauses (a) to (d) thereof. They are as follows:

3. It is hereby declared that

(a) broadcasting undertakings in Canada make use of radio frequencies that are public property and such undertakings constitute a single system, herein referred to as the Canadian broadcasting system, comprising public and private elements;

(b) the Canadian broadcasting system should be effectively owned and controlled by Canadians so as to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada;

[Page 535]

(c) all persons licensed to carry on broadcasting undertakings have a responsibility for programs they broadcast but the right to freedom of expression and the right of persons to receive programs, subject only to generally applicable statutes and regulations, is unquestioned.

(d) the programming provided by the Canadian broadcasting system should be varied and comprehensive and should provide reasonable, balanced opportunity for the expression of differing views on matters of public concern, and the programming provided by each broadcaster should be of high standard, using predominantly Canadian creative and other resources.

I refer next to ss. 15 to 17 of the Act which bring into view the objects of CRTC, its powers and powers of the Executive Committee. I should note that CRTC, consisting of full-time and part-time members, and its Executive Committee are established and appointed pursuant to the Canadian Radio-television and Telecommunications Commission Act, 1974-75-76 (Can.), c. 49. Section 15 is as follows:

15. Subject to this Act and the Radio Act and any directions to the Commission issued from time to time by the Governor in Council under the authority of this Act, the Commission shall regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy enunciated in section 3 of this Act.

Section 16, setting out the powers of the Commission, is in these words:

16. (1) In furtherance of its objects, the Commission, on the recommendation of the Executive Committee, may

(a) prescribe classes of broadcasting licences;

(b) make regulations applicable to all persons holding broadcasting licences, or to all persons holding broadcasting licences of one or more classes,

(i) respecting standards of programs and the allocation of broadcasting time for the purpose of giving effect to paragraph 3(d),

(ii) respecting the character of advertising and the amount of time that may be devoted to advertising,

(iii) respecting the proportion of time that may be devoted to the broadcasting of programs, advertisements or announcements of a partisan political

[Page 536]

character and the assignment of such time on an equitable basis to political parties and candidates,

(iv) respecting the use of dramatization in programs, advertisements or announcements of a partisan political character,

(v) respecting the broadcasting times to be reserved for network programs by any broadcasting station operated as part of a network,

(vi) prescribing the conditions for the operation of broadcasting stations as part of a network and the conditions for the broadcasting of network programs,

(vii) with the approval of the Treasury Board, fixing the schedules of fees to be paid by licensees and providing for the payment thereof,

(viii) requiring licensees to submit to the Commission such information regarding their programs and financial affairs or otherwise relating to the conduct and management of their affairs as the regulations may specify, and

(ix) respecting such other matters as it deems necessary for the furtherance of its objects; and

(c) subject to this Part, revoke any broadcasting licence other than a broadcasting licence issued to the Corporation.

(2) A copy of each regulation or amendment to a regulation that the Commission proposes to make under this section shall be published in the Canada Gazette and a reasonable opportunity shall be afforded to licensees and other interested persons to make representations with respect thereto.

The Executive Committee, on whose recommendation CRTC acts in execution of its powers under s. 16, is given independent powers under s. 17(1) in the following terms:

17. (1) In furtherance of the objects of the Commission, the Executive Committee, after consultation with the part-time members in attendance at a meeting of the Commission, may

(a) issue broadcasting licences for such terms not exceeding five years and subject to such conditions related to the circumstances of the licensee

(i) as the Executive Committee deems appropriate for the implementation of the broadcasting policy enunciated in section 3, and

(ii) in the case of broadcasting licences issued to the Corporation, as the Executive Committee deems consistent with the provision, through the Corpora-

[Page 537]

tion, of the national broadcasting service contemplated by section 3;

(b) upon application by a licensee, amend any conditions of a broadcasting licence issued to him;

(c) issue renewals of broadcasting licences for such terms not exceeding five years as the Executive Committee considers reasonable and subject to the conditions to which the renewed licences were previously subject or to such other conditions as comply with paragraph (a);

(d) subject to this Part, suspend any broadcasting licence other than a broadcasting licence issued to the Corporation;

(e) exempt persons carrying on broadcasting receiving undertakings of any class from the requirement that they hold broadcasting licences; and

(f) review and consider any technical matter relating to broadcasting referred to the Commission by the Minister of Communications and make recommendations to him with respect to any such matter.

Public hearings are prescribed by s. 19 with respect, inter alia, to the issue and renewal of broadcast licences. It is sufficient in this case to refer to s. 19(3), (4), (5) and (7) which in their relevant provisions are as follows:

19. …

(3) A public hearing shall be held by the Commission in connection with the renewal of a broadcasting licence unless the Commission is satisfied that such a hearing is not required…

(4) The Chairman may direct that a public hearing under this section be heard on behalf of the Commission by two or more members designated by him, of whom at least one shall be a full-time member, and the members so designated have and may exercise for the purpose of such hearing the powers of the Commission set out in subsection (7).

(5) A full-time member designated under subsection (4) in respect of a public hearing may, at any stage thereof, refer the hearing to the Commission and the Commission shall then conduct the hearing.

…

(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

[Page 538]

its order, 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.

Sections 20 and 21 provide for public notice in the Canada Gazette and elsewhere of applications for the issue, amendment or renewal of a broadcasting licence and for rules by CRTC respecting the procedure for making applications and representations and the conduct of hearings under s. 19. It is in pursuance of these rules that interventions are allowed in the public hearings, and was the case here.

Two other relevant provisions of the Act are ss. 25 and 26(5) which read:

25. Except as provided in this Part, every decision or order of the Commission is final and conclusive.

26. …

(5) Any minute or other record of the Commission or any document issued by the Commission in the form of a decision or order shall, if it relates to the issue, amendment, renewal, revocation or suspension of a broadcasting licence, be deemed for the purposes of section 25 and this section to be a decision or order of the Commission.

Reference may also be made to s. 12(4) of CRTC’s constituent Act. It is in these words:

12. …

(4) Any act or things done or deemed to be done by the Executive Committee in the exercise of the powers or the performance of the duties and functions conferred on it by this Part and the Broadcasting Act shall be deemed to be an act or thing done by the Commission.

Under s. 12(1) of CRTC’s constituent Act, the Executive Committee consists of the full-time members of CRTC. A majority of the full-time members constitutes a quorum of the Executive Committee, as provided by s. 12(2). Under s. 3 CRTC is to consist of not more than nine full‑time members and not more than ten part-time members, all members being Governor in Council appointees.

[Page 539]

I turn now to an examination of the powers and functions of the Executive Committee and the members designated in this case to hear CTV’s application for renewal of its licence. Pursuant to s. 19(4), the public hearing was put in charge of a panel of six, consisting of four full-time members and two part-time members. There is nothing in the Broadcasting Act that deals expressly with any powers of the hearing panel other than what is imported under s. 19(3) (respecting the holding of a public hearing in connection with the renewal of a broadcasting licence) and what is implicit in the relevant terms of s. 17(1). The hearing panel does not make the decision on licence renewal; rather it is the Executive Committee (or at least the prescribed quorum thereof) “after consultation with the part-time members in attendance at a meeting of the Commission”. Since not all members of the Executive Committee were part of the hearing panel nor all part-time members, it is obviously envisaged that those who did not participate in the hearing would have access to transcripts of the proceedings. It is further envisaged by s. 17(1) that the decision on renewal would be considered at a meeting of CRTC at which part-time members who were present would be consulted. The statute does not oblige the Executive Committee to make its decision at that time but it could do so if it was then ready with it.

What then does this say about the relation of the hearing panel to the Executive Committee? The former reports to the latter. I confess to finding it a curious device that under s. 19(3) a public hearing respecting the renewal of a licence is, unless dispensed with by CRTC, to be held by CRTC, subject to the chairman’s power under s. 19(4) to designate a hearing panel to act on behalf of the Commission. Yet it is the Executive Committee that actually makes the decision on renewal. However, they are all the full-time members of CRTC and would be expected to be aware of all the proceedings on foot respecting issue, amendment or renewal of licences.

[Page 540]

The Issues

The principal submission made by CTV relating to the question whether the challenged condition could be or was validly imposed failed before the Federal Court of Appeal. Before addressing myself to it, I wish to clear out a number of subsidiary submissions which were also rejected and, in my opinion, rightly so. One was an allegation of discrimination which is without merit, even though there was an attempt to associate it with the referentially incorporated requirement under s. 17(1)(a) that a condition be “related to the circumstances of the licensee”. The Federal Court of Appeal dealt at some length with this element and concluded that it could not be said that there were no circumstances to which the challenged condition related or that the Executive Committee did not base its decision on them. This is enough to dispose of this matter although I am myself of the opinion that the relation to the circumstances of the licensee imports, in context, a large element of discretion in the Executive Committee, a matter of judgment rather than any obligation of fact-finding.

Another submission rejected by the Federal Court of Appeal was that by seeking to control or regulate the content of programs the Executive Committee was in violation of s. 3(c) respecting the right to freedom of expression. The Federal Court of Appeal pointed out that no restrictions were imposed on freedom of expression in the drama requirements of the condition and, in my opinion, it was correct in concluding that s. 3(c) (even taken at its widest) was not violated.

The Federal Court of Appeal also considered and dismissed a CTV contention that because the subject matter of the condition was allegedly dealt with by provisions respecting non‑Canadian programs in CRTC regulations, the challenged condition in this case was invalidly introduced. I agree with the Federal Court of Appeal that the regulations concerned time allocation and, moreover, there was nothing in them that conflicted with the condition or even dealt with its subject matter. Indeed, the Court said that the subject matter of the condition did not come within the regulation-

[Page 541]

making power under s. 16(1)(b)(i). Nor do I think that the condition is embraced in the regulation-making power s. 16(1)(b)(iv), as was argued in this Court; in any event, it was not suggested that there were regulations under this head relating to the subject matter of the challenged condition.

An argument was mounted in this Court on an alleged infraction of the principle expressed in Brant Dairy Co. v. Milk Commission of Ontario, [1973] S.C.R. 131. Apart from an oblique reference to the Brant Dairy case in the dissenting opinion of Pigeon J. in Capital Cities Communications Inc. v. C.R.T.C., [1978] 2 S.C.R. 141, at p. 190, I find nothing in the Brant Dairy case that is relevant to the issues (indeed, to the principal issue, shortly to be considered) here. The Brant Dairy case was concerned with an attempted delegation to a subordinate agency of power conferred upon a senior agency, the power being exercised (improperly, as held by this Court) by a wholesale delegation thereof in the same terms in which it was imposed. That is not this case, where there is specification of regulation-making power in CRTC and licensing power in the Executive Committee. What counsel for CTV appeared to contend was that the regulation-making power embraced what was provided by the condition and in that, somewhat remote, sense the Executive Committee was given power by delegation in the terms in which it had been reposed in CRTC. I disagree with this attempted application of the Brant Dairy case. Either the Executive Committee has the power it exercised in imposing the condition or it did not. If not, the matter turned on construction of the relevant provisions of ss. 16 and 17 and not on any principles of delegation and subdelegation.

There was also a contention based on an alleged want of consonance between the decision of the Executive Committee and the licence terms, and a previous resolution by the Executive Committee. This was sought to be fortified by charging vagueness and uncertainty. I must confess inability to follow this latter point if the power asserted existed. Surely, if there was any doubt about the terms

[Page 542]

of the condition, it was open to resolution by referring the doubt to the Executive Committee for clarification. As asserted here, the claim of uncertainty appeared to treat the Executive Committee’s decision as if the condition therein was a condition in a common law conveyance of land. I find no merit in the assertion of uncertainty.

The want of consonance between the decision, the actual licence and the resolution was based on the fact that the condition appears to be less restrictive in the licence than in the decision and in the resolution, a matter not unfavourable to CTV. The decision on the point reads as follows:

Accordingly, it will be a condition of the renewal of the CTV network licence that 26 hours of original new Canadian drama be presented during the 1980-81 broadcasting year, and 39 hours of original new Canadian drama be presented during the 1981-82 season. In planning and developing the necessary pilots for these dramatic programs or series, a minimum of 50% should be entirely domestic, rather than co-productions with foreign partners. The primary orientation should be on Canadian themes and the contemplated production should be intended for telecasting in the peak viewing periods of the evening schedule.

The licence renewal stated the condition in these terms:

It is a condition of this licence that 26 hours of original new Canadian drama be presented during the 1980-81 broadcasting year, and 39 hours of original new Canadian drama be presented during the 1981-82 season.

The resolution upon which CTV dwelt was that adopted at a meeting of the Executive Committee on May 3 and 4, 1979, when it provided for renewal of CTV’s licence,

…subject to the condition that CTV introduce twenty-six (26) hours of new Canadian drama, in Television Program Categories 7, 9 and 11 in the 1980-81 season and thirty‑nine (39) hours on the 1981-82 season.

Although the Federal Court of Appeal did not deal directly with the resolution, it treated the condition as that set out in the licence renewal, saying at the same time that it saw no difference of substance between it and the decision. I am of

[Page 543]

the same opinion and find it strange that CTV should complain of less onerous terms (there being no reference in the decision or licence to program categories 7, 9 and 11, assuming that this made some difference in what was prescribed) in the decision and licence than what was originally stated in the resolution.

This brings me to CTV’s principal submission which was that CRTC (or its Executive Committee) exceeded its jurisdiction in imposing the challenged condition because (1) control of program content, if permitted under s. 3, could only be by regulation and (2) s. 17, if it purported to provide for program content, was subordinate to the regulation-making authority under s. 16 in that respect.

The Federal Court of Appeal dealt at some length with the jurisdictional objection to the imposition of the condition, canvassing ss. 3, 15, 16 and 17. Thurlow C.J., speaking for the Court, put the matter as follows [at p. 254]:

The authority conferred by section 17 to further the objects of the Commission is a broad one. Under it, for the purpose of regulating and supervising all aspects of the Canadian broadcasting system with a view to implementing the policy enunciated in section 3, the Executive Committee may issue, amend at the request of the licensee, renew or suspend broadcasting licences or may exempt persons carrying on broadcasting receiving licences from the requirement of having a licence. For the same purpose when issuing or renewing a licence, the Committee may make the licence subject to such conditions related to the circumstances of the licensee as the Committee deems appropriate for the implementation of the broadcasting policy enunciated in section 3. Prima facie it seems to be well within the power of the Committee under section 17, when renewing the appellant’s licence, to impose a condition designed to further one of the objects of the broadcasting policy, provided the condition is one that is “related to the circumstances of” the appellant and provided that its imposition is not contrary to the Act or to a regulation that has been made in exercise of the power to make regulations contained in section 16. As I see it, the question to be determined at this point is thus, whether section 16 or the regulations made under it have the effect of withdrawing from the broad scope of the power of the

[Page 544]

Committee under section 17, the authority to impose the condition here in question.

Referring to and quoting s. 16, the learned Chief Justice went on as follows [at pp. 255-56]:

It will be observed that while the authority to make regulations under this section is also related to the furtherance of the objects of the Commission, the subject-matter that may be dealt with by regulations made under it is, except under subparagraph 16(1)(b)(ix), limited to prescribing classes of broadcasting licences and to particular subjects. Among these, however, is subparagraph 16(1)(b)(i), which authorizes the making of regulations respecting “standards of programs” and “the allocation of broadcasting time” for the purpose of giving effect to paragraph 3(d). When the wording of subparagraph 16(1)(b)(i) is compared with that of paragraph 3(d) it becomes apparent that what may be the subject of regulations under subparagraph 16(1)(b)(i) does not cover the whole of what is embraced in paragraph 3(d) but only the “standards of programs” and “the allocation of broadcasting time” for the purposes described in paragraph 3(d). It would not, in my opinion, be within this power to make regulations requiring licensees to present original new Canadian drama or any other particular type of programs simply by allocating times for its presentation or by prescribing programming standards to which the drama or other program must conform. It follows in my opinion that if the CRTC has power to require the presentation of original new Canadian drama at all, such power is not found in the authority to make regulations under subparagraph 16(1)(b)(i). Nor is it a subject that is covered by the Non-Canadian Program provisions in the present Television Broadcasting Regulations, C.R.C. 1978, Vol. IV, c. 381.

It was not argued that the subject could properly be dealt with by regulations under subparagraph 16(1)(b)(ix), but assuming that it could be, I think it is apparent from the reference in that subparagraph to “the furtherance of its objects” and the reference to the same objects in section 17, that at least until the power to make regulations under subparagraph 16(1)(b)(ix) has been exercised, the power under section 17 to deal with the subject-matter on an individual basis is not ousted by subparagraph 16(1)(b)(ix).

Once the subject-matter of the condition is seen to be outside the regulation-making power of subparagraph 16(1)(b)(i) and is not dealt with in regulations made under subparagraph 16(1)(b)(ix), it is apparent that if

[Page 545]

the CRTC has power to deal with it at all it must be by the route of imposing a licence condition under section 17, which, as I have pointed out, is by its terms broad enough for that purpose.

I agree with this treatment of CTV’s principal submission. Counsel for CTV sought support in CKOY Ltd. v. The Queen, [1979] 1 S.C.R. 2 for his contention that program content was subsumed under s. 16(1)(b)(i) which authorizes regulations respecting, inter alia, standards of programs. The CKOY case turned on other considerations, but in recognizing that standards of programs include program content it merely reflected the broad interpretation given to the Broadcasting Act and to the powers thereunder vested in CRTC and in the Executive Committee respectively under ss. 16 and 17. I see nothing in the Act that precludes the Executive Committee from imposing the kind of condition of licence renewal that it imposed here when it was authorized under s. 17(1) to further the objects of CRTC set out in s. 15 and to implement the broadcasting policy enunciated in s. 3. Moreover, even if it could be said that a condition cannot be imposed under s. 17(1)(c) in violation of a regulation promulgated under s. 16(1)(b)(i), there is no such situation that exists here.

The Notice Issue on Which CTV Succeeded in the Federal Court of Appeal

As already noted, although the Federal Court of Appeal held that CTV had ample notice, in the light of previous decisions on renewal applications, that an increase in offerings of Canadian drama would be discussed, the Court nonetheless went on to hold that CTV should have been given notice of and a fair opportunity to contest the particular condition contemplated in respect of Canadian drama presentations. I am unable to appreciate how the failure to give previous notice of particulars and an opportunity to contest a contemplated condition of a licence goes to jurisdiction as a failure of natural justice. CTV was aware of earlier dissatisfaction of CRTC with its performance in respect of Canadian drama and it promised in earlier applications improvement in that respect.

[Page 546]

Moreover, two intervenors had raised the question of attaching a content condition in their written representations. There had been some discussion on it at the public hearing and CTV had been given an opportunity to reply in writing.

I do not see therefore how CTV can assert or the Federal Court of Appeal could find a failure of natural justice in the specification of the particular condition that was in fact included as a term of licence renewal. This is not a case where CTV was being required to answer a criminal or penal charge or where some property right was in jeopardy, or where punishable misconduct was alleged, but where it was seeking an indulgence. To be fair, it was entitled to expect that its licence would be renewed but not without terms relating to presentation of Canadian drama. The line is too narrow between notice that increased Canadian drama offerings would be discussed (such notice having been amply given) and notice of what in particular would be required in that respect as a condition of licence renewal. Even if such a line could properly be drawn, I do not think that there is a duty on CRTC to give an advance indication of its probable decision in the particularity stated by the Federal Court of Appeal. An applicant seeking a statutory privilege has no right to know in advance of a probable decision unless the statute commands it or the administering tribunal wishes to disclose it. It cannot be said that CTV was being misled here or had not the slightest reason to apprehend the likelihood of a condition such as that attached here to the licence renewal. Conditions had been attached before, although not relating to content and CTV was well aware of this power of CRTC when renewing licences.

Without enlarging on this matter in the detail canvassed in the factum of CRTC, it is my opinion that the order of the Federal Court of Appeal should be set aside and, subject to the last point

[Page 547]

raised in this appeal, the decision of CRTC and the conditioned licence renewal should be restored.

The Composition of the Hearing Panel During the Hearings

The question here is, to put it briefly, whether this Court’s decision in Mehr v. Law Society of Upper Canada, [1955] S.C.R. 344 and a principle reflected therein should be applied in this case. In the Mehr case, which arose out of a disciplinary proceeding against a barrister and solicitor, there had been a wrongful reception of evidence by the Discipline Committee which was held to be enough to quash the proceedings but this Court went on to say that only those members of the Discipline Committee who heard the evidence at the inquiry should participate in the decision.

In the present case the hearing panel consisted of six members of CRTC, four full-time members and two part-time members. On three occasions during the lengthy hearings panel members were absent during some part of the proceedings. On the second hearing day, February 21, 1979, one of the full-time members was late, a fact mentioned by the chairman at the opening of the day’s proceedings. The member came in later and participated in the questioning of representatives of CTV. No objection was taken.

On the third hearing day, February 22, 1979, an afternoon recess was taken and the chairman announced that some panel members had difficulties about flights and had an engagement in another city next morning. He added “so if you have no objection we will continue with a reduced panel. But it depends on the applicants, if they accept that or not. If they don’t, they will have to stay.” Counsel for CTV then said “That gives us no concern, sir.” After the recess, it turned out that three of the panel were absent, two of the full-time members and one part-time member.

Later that day, the second part-time member of the panel retired from the hearing. No objection was taken and, indeed, the CTV president who was

[Page 548]

then giving a reply said goodbye to the retiring panel member and continued with his presentation.

Thurlow C.J. commented on these absences as follows [at pp. 267-68]:

Assuming that the members who were present at the beginning of the public hearing had been designated to hear the matter pursuant to subjection 19(4), it seems extraordinary that they should not have been present throughout the hearing. Moreover, it does seem undesirable, if not, indeed, contrary to the Broadcasting Act, that a member who is part of a panel designated to hold a public hearing and who absents himself during a part of the hearing should thereafter be present at or participate in the consultation required by subsection 17(1). Counsel for the Commission urged that the departure of the members from the hearing had been in one instance with the express, and in the others with the tacit, approval of the appellant and that the appellant had subsequently filed a lengthy memorandum for the information of the members who had absented themselves. He submitted that the objection had been waived and that in any event the public hearing required by the statute was merely for the purpose of obtaining the representations of members of the public and of informing the Commission and that it was not necessary in law for the members to remain in attendance throughout the hearing.

However, he concluded that any objection of CTV was now irrelevant in view of the Federal Court of Appeal decision on notice of the proposed condition, and he added that it was unnecessary to reach a concluded opinion either on the objection or on the answer of CRTC (which presumably was that there was either no objection or there was consent or that the statute permitted the procedure).

The learned Chief Justice added this observation [at p. 268]:

However, I think it is opportune to observe that for a Chairman at a hearing at which a party is seeking renewal of a licence to ask a party to say whether he objects to a member of the panel leaving while the hearing is in progress is capable of putting the party in a position of embarrassment into which he should not be put. Undoubtedly, he could object but if he did he might well have to wonder if by doing so his position with the Commission was being prejudiced. Moreover, for the Chairman to ask if a party approves of members of the

[Page 549]

panel absenting themselves puts the Commission in the undesirable position of asking indulgences from parties who are entitled to assume that members of the panel will stay to hear their presentations.

The undesirability of a shifting membership of a panel is unquestioned, but it remains to consider whether under the governing legislation and in the circumstances here there was such a violation of norms of procedure as to warrant the quashing of the decision on this ground. I should add that it appears that the four members who were variously absent participated in the consultation prescribed by s. 17(1) and two of them who were members of the Executive Committee were at the meeting of that Committee which approved the licence renewal on the condition to which objection was taken by CTV. I would add that nothing turns in my opinion upon the direction of the Executive Committee to its staff to prepare a decision in conformity with the resolution for renewal of licence which it passed at a meeting of May 3 and 4, 1979. Nor does anything turn on the fact that two members of the Executive Committee, one of whom had not been a member of the hearing panel were assigned to edit the staff’s formulation.

The difficulty with applying strict natural justice considerations based on the maxim that only they who hear should decide is that the governing statute ordains differently. Counsel for CRTC contended that the provisions of s. 19(4) respecting the constitution of a hearing panel merely fixed a quorum of two or more members, of whom only one need be a full-time member, and this was met here throughout the hearings. However, no quorum is expressly fixed under that provision and I am of the view that this was unnecessary having regard to the terms of s. 17(1)(c).

Those terms make inapplicable the principle invoked under the Mehr case which was one, moreover, where there was a charge of misconduct against the barrister and solicitor, thus threatening his professional career. Here the statute clearly

[Page 550]

envisages that members of the Executive Committee who were not on the hearing panel would participate in the decision on renewal. In fact, eight members so participated although only four were on the hearing panel. I can only read s. 17(1)(c), in respect of renewal or s. 17(1)(a) and (b) in respect of issue or amendment of a licence, as expressly authorizing all full-time members of CRTC, being the Executive Committee, to make the decision on renewal or issue or amendment of a licence, whether or not they heard the representations at the public hearing. Nor would I be justified in limiting or requiring participation to or of all members who were on the hearing panel, so long as there was a quorum of the Executive Committee involved in the decision on renewal. There is no express provision for excluding any member of the Executive Committee nor can such a provision be implied when consideration is given toss. 17(1) and 19(4).

What is implicit is that the hearing panel would, through transcripts or otherwise, bring the issues raised on the application for renewal to the members of the Executive Committee and would consult with the part-time members on a proposed decision. There was a transcript here. Moreover, CRTC and the Executive Committee was dealing with an experienced applicant which was aware of the provisions of the Act and appeared to understand that the absence of a member or two or even three from some parts of the hearing would not impair the power of the Executive Committee to make a decision. Unusual as the decision-making authority may be when considered in relation to the composition of a hearing panel, the statute speaks clearly on the matter.

There is much to be said, as applicable here, for the considerations canvassed by the Ontario Court of Appeal under predecessor legislation in R. v. Board of Broadcast Governors and the Minister of Transport (1962), 33 D.L.R. (2d) 449. At that time the Minister of Transport was the licensing authority, empowered to act upon a recommenda-

[Page 551]

tion of the Board of Broadcast Governors following a public hearing before the Board. Laidlaw J.A., speaking for the Ontario Court of Appeal, said this (at p. 461):

The nature of the hearing before the Board was the subject of much discussion in this Court. No doubt the Board was under a duty to conduct the hearing in good faith and in a fair manner free from prejudice or bias and also to give to “the applicant, the Corporation and other interested licensees and applicants for licences” a proper opportunity of being heard. At the same time it is plain that the hearing required by s‑s. (3) was not intended to be a trial. There was no lis inter partes. The Board was not intended to adjudicate or determine by judgment, order, or decision the rights of any person. It does not appear to me that the Board possessed the attributes of a Court of Justice or that it was bound to follow the procedure of such a Court. On the contrary I think the Board was free to prescribe and follow its own course of procedure. Finally, it is of the utmost importance to observe that neither the opinion of the Board nor the recommendation of the Board to the Minister of Transport has any characteristic of a judgment or order of a Court of Justice. Neither such opinion nor recommendation has any legal effect whatsoever on any right of any person entitled to be heard at the hearing. No such opinion or recommendation can be enforced and no person is bound by it. In particular the Minister of Transport is under no obligation whatsoever to give any effect to the whole or any part of the recommendation made by the Board. In the exercise of his discretion he may disregard it wholly if he deems it proper or advisable to do so or he may act on it with such variation or modification as he deems fit in any particular case.

There is, it seems to me, a parallel with the public hearing before a hearing panel and the reposing of authority for the decision on renewal in the Executive Committee, not all of whom would have been involved in the public hearing.

In all the circumstances, I would hold that the decision made by the Executive Committee is not defeasible simply because the hearing panel varied in its established membership by some absences from parts of the hearing. This is especially so when consent to proceed with a reduced panel was given in the most serious case of absence and no

[Page 552]

objection was taken to one member arriving late and one leaving early.

Conclusion

I would, accordingly, allow the appeal of CRTC and reject the contrary submissions of CTV. This is not a case for costs.

Appeal of CRTC allowed. Cross-appeal of CTV Television Network dismissed.