Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commission et al., (1977) 18 N.R. 181 (SCC)

• Judge: Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 30, 1977
• Jurisdiction: Canada (Federal)
• Citations: (1977), 18 N.R. 181 (SCC)

Capital Cities Com. Inc. v. CRTC (1977), 18 N.R. 181 (SCC)

MLB headnote and full text

Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commission et al.

Indexed As: Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commission et al.

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.

November 30, 1977.

Summary:

This case arose out of an application by a Toronto cablevision company to the Canadian Radio-Television Commission for authority to delete commercials from the television signal of WBEN, broadcasting from Buffalo, New York. WBEN intervened and opposed the application by the Toronto cablevision company. The Canadian Radio-Television Commission allowed the application and amended the licence of the Toronto cablevision company to permit random deletion of commercial messages from the television signal from WBEN.

On appeal by WBEN to the Federal Court of Appeal, the appeal was dismissed and the order of the Canadian Radio-Television Commission was affirmed. The judgment of the Federal Court of Appeal is reported at 7 N.R. 18. The Federal Court of Appeal stated that the Canadian Radio-Television Commission made the order pursuant to s. 17 of the Broadcasting Act and that s. 17 was within the legislative competence of the Parliament of Canada. The Federal Court of Appeal stated that the legislative authority of the Parliament of Canada over broadcasting includes both the transmission and reception of signals. The Federal Court of Appeal stated that the legislative authority of the Parliament of Canada respecting broadcasting extends to the content of broadcasts by a cable television system.

On appeal to the Supreme Court of Canada the appeal was dismissed and the judgment of the Federal Court of Appeal was affirmed. The Supreme Court of Canada declared valid the order of the Canadian Radio-Television Commission and stated that the legislative authority of the Parliament of Canada over broadcasting extends to the reception and distribution of television signals by cable television companies - See paragraphs 12 to 33 and 73 to 94.

Pigeon, Beetz and de Grandpré, JJ., dissenting, in the Supreme Court of Canada, would have allowed the appeal, would have set aside the judgment of the Federal Court of Appeal and would have declared invalid the order of the Canadian Radio-Television Commission. Pigeon, J. stated that the order of the Canadian Radio-Television Commission authorizing random deletion of commercials was invalid because the order constituted an interference or "rebroadcast" prohibited by s. 11 of the Radio Act Regulations and by Article 21 of the Inter- American Radio Communications Convention of 1937 - See paragraphs 142 and 170.

Constitutional Law - Topic 6644

Interprovincial works and undertakings - Radio and television - Cable television - British North America Act 1867, s. 92(10)(a) - Whether the Government of Canada had the legislative competence to regulate the content of programs carried by a cable television system situate wholly within a province - The Canadian Radio-Television Commission, pursuant to s. 17 of the federal Broadcasting Act, authorized a Toronto cablevision company to delete commercials from the television signal of WBEN, broadcasting from Buffalo, New York - The Supreme Court of Canada dismissed an appeal by WBEN and declared valid the order of the Canadian Radio-Television Commission - The Supreme Court of Canada stated that the legislative authority of Parliament of Canada over broadcasting extends to such reception and distribution of television signals and programs - See paragraphs 12 to 33 and 73 to 94.

Telecommunications - Topic 2684

Cable television - Regulation of program content - Commercial advertisements - Pursuant to s. 17 of the Broadcasting Act, the Canadian Radio-Television Commission authorized a Toronto cablevision company to delete commercials from the television signal of WBEN, broadcasting from Buffalo, New York - The Supreme Court of Canada declared valid an order of the Canadian Radio-Television Commission which amended the licence of the cablevision company so as to permit random deletions of commercial messages by the cablevision company from the television signal of WBEN - See paragraphs 34 to 44 - The Supreme Court of Canada stated that a television cable distribution system, which receives signals from a broadcaster, is a broadcast receiving undertaking subject to the authority of the Canadian Radio-Television Commission - See paragraphs 39 and 100.

Administrative Law - Topic 2210

Natural justice - Policies or rules adopted by a board or tribunal - Whether a board properly exercised its authority by deciding an application by reference to its own policy statements - The Canadian Radio-Television Commission adopted guidelines which it purported to follow in making a decision - There were no regulations which were applicable to the subject matter of the decision - The Supreme Court of Canada held that the decision was valid - See paragraphs 46 to 50 and 107 to 110.

Administrative Law - Topic 560

The hearing and decision - Decisions of the tribunal - Validity of conditions imposed by a tribunal - A Toronto cablevision company applied to the Canadian Radio-Television Commission for permission to delete commercials from the television signal of WBEN, broadcasting from Buffalo, New York - The Canadian Radio-Television Commission granted the application and included in its decision a requirement which made its consent a prerequisite to any settlement by the cablevision company of pending litigation between the cablevision company and WBEN - The Supreme Court of Canada declared invalid and severable such a requirement or condition in its decision - The Supreme Court of Canada stated that the Broadcasting Act, which established the commission, did not authorize the imposition of such a requirement or condition - See paragraphs 45 and 106.

Courts - Topic 79

Stare decisis - Prior decisions of the same court - Supreme Court of Canada - The Supreme Court of Canada stated that it is not bound by its own prior judgments or prior judgments of the English Privy Council - See paragraphs 27 and 88.

Treaties - Topic 1606

Operation and effect - Domestic or internal consequences of treaties - The Supreme Court of Canada stated that the Inter-American Radio Communications Convention of 1937, to which Canada was a party, would have no domestic or internal consequences in Canada "unless they arose from implementing legislation giving the Convention a legal effect within Canada" - See paragraphs 54 and 115.

Telecommunications - Topic 5866

Treaties respecting television broadcasts - Rebroadcasting prohibitions - Article 21 of the Inter-American Radio Communications Convention of 1937 prohibited rebroadcasting without permission from the originating station - Canada and United States were parties to the treaty - A Toronto cablevision company was authorized by the Canadian Radio-Television Commission to delete commercials from the television signal of WBEN, broadcasting from Buffalo, New York - The Supreme Court of Canada stated that Article 21 of the treaty did not apply to the Toronto cablevision company because the television signal from WBEN was not rebroadcast by the cablevision company by radio communications - See paragraphs 56 to 60 and 117 to 121.

Words and Phrases

Undertaking - The Supreme Court of Canada discussed the meaning of the word "undertaking" as found in s. 92(10(a) of the British North America Act 1867 - See paragraphs 28 and 89.

Cases Noticed:

Regulation and Control of Radio Communication in Canada, In re, [1932] A.C. 304, refd to. [paras. 15, 76].

Public Utilities Commission v. Victoria Cablevision Ltd. (1965), 52 W.W.R. 286, refd to. [paras. 15, 76].

CFRB and Attorney General of Canada, Re, [1973] 3 O.R. 819, refd to. [paras. 15, 76].

Regulation and Control of Aeronautics in Canada, In re, [1932] A.C. 54, refd to. [paras. 16, 77].

Attorney General for Ontario v. Winner, [1954] A.C. 541, folld. [paras. 18, 79].

United Artists Television, Inc. v. Fortnightly Corporation (1967), 377 F. 2d 872, folld. [paras. 20, 81].

Fortnightly Corporation v. United Artists Television, Inc. (1968), 392 U.S. 390, folld. [paras. 21, 82]; refd to. [paras. 140, 168].

Stevedoring case, [1955] S.C.R. 529, refd to. [paras. 28, 89].

Empress Hotel case, [1950] A.C. 122, refd to. [paras. 28, 89].

Caloil Inc. v. Attorney General of Canada, [1971] S.C.R. 543, refd to. [paras. 31, 92]; folld. [paras. 127, 155].

R. v. Port of London Authority ex p. Kynoch, [1919] 1 K.B. 176, refd to. [paras. 49, 110].

British Oxygen Co. v. Board of Trade, [1971] A.C. 610, refd to. [paras. 49, 110].

R. v. Chief Immigration Officer, Heathrow Airport, [1976] 3 All E.R. 843, folld. [paras. 55, 116].

Composers, Authors and Publishers Association of Canada Ltd. v. CTV Television Network Ltd., [1968] S.C.R. 676, refd to. [paras. 140, 168].

Post Office v. Estuary Radio Ltd., [1968] 2 Q.B. 740; [1967] 3 All E.R. 679, folld. [paras. 147, 175].

Brant Dairy Co. v. Milk Commission of Ontario, [1973] S.C.R. 131, refd to. [paras. 149, 177].

Statutes Noticed:

British North America Act 1867, sect. 92(10(a) [paras. 18, 79].

Broadcasting Act, R.S.C. 1970, c. B-11, sect. 2 [paras. 35, 96]; sect. 3, sect. 15, sect. 16, sect. 17 [paras. 37, 98]; sect. 29(3) [paras. 39, 100].

Radio Act, R.S.C. 1970, c. R-1, sect. 7(1), sect. 8 [paras. 53, 114].

Radio Act Regulations, S.O.R. 63/297, sect. 11 [paras. 57, 118].

Authors and Works Noticed:

Harvard Law Review, Vol. 79, (1965-66), page 366 [paras. 129, 157].

Counsel:

G.F. Henderson, Q.C., B.A. Crane and E. Binavince, for the appellants;

J.J. Robinette, Q.C., T.G. Heintzman and Peter Grant, for the respondent;

D.J. Wright, Q.C., B.C. MacDonald, for the intervenants Rogers Cable et al.;

G.W. Ainslie, Q.C., D. Friesen and A. Desjardins, for the Attorney General for Canada;

J.D. Hilton, Q.C. and E. Goldberg, for the Attorney General for Ontario;

R. Langlois and A. Tremblay, for the Attorney General for Quebec;

M.H. Smith, for the Attorney General for British Columbia;

W. Henkel, Q.C. and Peter Teasdale, for the Attorney General of Alberta;

Kenneth Lysyk, Q.C., for the Attorney General for Saskatchewan.

This appeal was heard by LASKIN, C.J.C., MARTLAND, JUDSON, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ and de GRANDPRE, JJ., at Ottawa, Ontario on January 26, 27 and 28, 1977.

The judgment of the Supreme Court of Canada was delivered at Ottawa, Ontario on November 30, 1977 and the following opinions were filed:

LASKIN, C.J.C. - see paragraphs 1 to 61 (English language judgment) and paragraphs 62 to 122 (French language judgment);

PIGEON, J., dissenting - see paragraphs 123 to 150 (English language judgment) and paragraphs 151 to 178 (French language judgment).

MARTLAND, JUDSON, RITCHIE, SPENCE and DICKSON, JJ. concurred with LASKIN, C.J.C.

BEETZ and de GRANDPRE, JJ. concurred with PIGEON, J.