Telecommunications Workers Union v. Canadian Radio-Television and Telecommunications Commission et al., (2003) 312 N.R. 128 (FCA)

• Judge: Linden, Rothstein and Sexton, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 20, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 312 N.R. 128 (FCA);2003 FCA 381

TWU v. CRTC (2003), 312 N.R. 128 (FCA)

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Temp. Cite: [2003] N.R. TBEd. NO.005

Telecommunications Workers Union (appellant) v. Canadian Radio-Television and Telecommunications Commission and Shaw Cablesystems Company (respondents) and Consumers' Association of Canada (BC Branch), BC Old Age Pensioners' Organization, Council of Senior Citizens' Organizations of BC, End Legislated Poverty, Federated Anti-Poverty Groups of BC, Senior Citizens' Association of BC, Tenants Rights Action Coalition, and West End Seniors' Network (Collectively known as CAC (BC) et al.) and Canadian Cable Television Association ("CCTA") (intervenors)

(A-21-03; 2003 FCA 381; 2003 CAF 381)

Indexed As: Telecommunications Workers Union v. Canadian Radio-Television and Telecommunications Commission et al.

Federal Court of Appeal

Linden, Rothstein and Sexton, JJ.A.

October 20, 2003.

Summary:

The CRTC enacted s. 47 of the Broadcast­ing Distribution Regulations, which provided that in certain circumstances increases in basic cable service rates need not be approved by the CRTC, but could be set by individual cable companies according to the market competition in its licensed service area (i.e. deregulated). The union represent­ing Shaw Cable Systems workers submitted that the regulation was ultra vires the CRTC, because the CRTC abdicated its obligations under the Broadcasting Act to "regulate and supervise all aspects" of the broadcasting system. The CRTC rejected the submission. The union appealed.

The Federal Court of Appeal dismissed the appeal. Examining the statutory scheme of the Act as a whole, it was clear that s. 47 was not inconsistent with the Act or the powers granted to the CRTC by the Act. The CRTC did not err in determining that it had the authority to enact s. 47.

Administrative Law - Topic 9058

Boards and tribunals - Jurisdiction of particular boards and tribunals - Canadian Radio-Television and Telecommunications Commission - The CRTC enacted s. 47 of the Broadcasting Distribution Regulations, which provided that in certain circum­stances increases in basic cable service rates need not be approved by the CRTC, but could be set by individual cable com­panies according to the market competition in its licensed service area (i.e. deregu­lated) - The CRTC rejected the submission that the regulation was ultra vires as an abdication of its obligations under the Broadcasting Act to "regulate and super­vise all aspects" of the broadcasting system - The Federal Court of Appeal affirmed the decision as correct - Examining the statutory scheme of the Act as a whole, it was clear that s. 47 was not inconsistent with the Act or the powers granted to the CRTC by the Act - The exemption from rate approval was not final and irrevocable - The CRTC continued to regulate and supervise rates in other ways - The Broad­casting Act did not require that the CRTC must, to regulate rates, specifically approve or set the rates - The obligation was to regulate to ensure affordable rates - The manner of regulation was for the CRTC to decide - See paragraphs 34 to 75.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - On appeal, a union challenged the Canadian Radio-Television and Telecommunications Commission's (CRTC) enactment of a regulation as ultra vires - The union submitted that the stan­dard of review was correctness - The CRTC held that the standard was reason­ableness simpliciter - The Federal Court of Appeal, applying the pragmatic and func­tional approach, held that the standard was correctness - The authority to enact regula­tions was a matter of statutory interpreta­tion with jurisdictional implications - Such a matter did not fall within the CRTC's general expertise respecting policy - The only factor pointing towards a less deferen­tial standard of review was the purpose of the legislation - The weight of the factors pointed to a standard of correctness - See paragraphs 19 to 33.

Telecommunications - Topic 6472

Commissions - Regulation - Powers - Rates - [See Administrative Law - Topic 9058 ].

Telecommunications - Topic 6481

Commissions - Regulation - Appeals and judicial review - Standard of review - [See Administrative Law - Topic 9102 ].

Cases Noticed:

Dr. Q., Re (2003), 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170 (S.C.C.), refd to. [para. 22].

Barrie Public Utilities et al. v. Canadian Cable Television Association et al. (2003), 304 N.R. 1 (S.C.C.), refd to. [para. 24].

Société Radio-Canada v. Métromédia CMR Montréal Inc. et al. (1999), 254 N.R. 266 (F.C.A.), refd to. [para. 27].

Canadian Pacific Railway Co. v. Canadian Transportation Agency et al. (2003), 307 N.R. 278 (F.C.A.), refd to. [para. 30].

Minister of National Revenue (Customs and Excise) v. Mattel Canada Inc., [2001] 2 S.C.R. 100; 270 N.R. 153, refd to. [para. 31].

R. v. CKOY Ltd., [1979] 1 S.C.R. 2; 24 N.R. 254, refd to. [para. 41].

Canadian Broadcasting League v. Canadian Radio-Television and Telecommunica­tions Commission et al. (1982), 43 N.R. 77 (F.C.A.), refd to. [para. 42].

Telecommunications Workers' Union v. Canadian Radio-Television and Telecom­munications Commission and CNCP Telecommunications, [1989] 2 F.C. 280; 98 N.R. 93 (F.C.A.), dist. [para. 63].

Saskatchewan Wheat Pool et al. v. Canada (Attorney General) (1993), 67 F.T.R. 98; 107 D.L.R.(4th) 190 (T.D.), dist. [para. 65].

Shebib v. Canada (Attorney General) (2003), 301 N.R. 78 (F.C.A.), refd to. [para. 72].

Statutes Noticed:

Broadcasting Act, S.C. 1991, c. 11, sect. 3, sect. 5, sect. 9, sect. 10, sect. 31 [para. 18].

Broadcasting Act Regulations (Can.), Broadcasting Distribution Regulations, SOR/97-555, sect. 47 [para. 18].

Broadcasting Distribution Regulations - see Broadcasting Act Regulations (Can.).

Counsel:

Jim Aldridge, Q.C., and Marcus Bartley, for the appellant;

C. Christopher Johnston, Q.C., for the respondent, Shaw Cablesystems Co.;

Michael Koch, for the respondent, CRTC;

Lori Assheton-Smith, for the intervenor, CCTA;

Sarah Y. Khan, for the intervenor, CAC (BC).

Solicitors of Record:

Rosenbloom and Aldridge, Vancouver, B.C., for the appellant;

Johnston & Buchan LLP, Ottawa, Ontario, for the respondent, Shaw Cablesystems Co.;

Goodmans LLP, Toronto, Ontario, for the respondent, CRTC;

Lori D. Assheton-Smith, Ottawa, Ontario, for the intervenor, CCTA;

British Columbia Public Interest Advocacy Centre, Vancouver, B.C., for the inter­venor, CAC (BC).

This appeal was heard on September 18, 2003, at Vancouver, B.C., before Linden, Rothstein and Sexton, JJ.A., of the Federal Court of Appeal.

On October 20, 2003, Sexton, J.A., delivered the following judgment for the Court of Appeal.