Rogers Communications Inc. v. Canada ( Attorney General )
T-919-97
Nadon J.
19/3/98
23 pp.
Application for declaration Order in Council P.C. 1997-486 (Direction to CRTC) invalid as ultra vires Broadcasting Act-In 1996 government releasing policy statement that cable, telephone companies would be permitted to compete in each other's core businesses subject to meeting Canadian ownership, control requirements of Broadcasting Act, Telecommunications Act-Government giving special consideration to B.C.Tel's situation, having been "grandfathered" under Canadian ownership requirements of Telecommunications Act-Specifically declaring intention of amending Direction to CRTC (Ineligibility of non-Canadians) to allow B.C.Tel to be eligible to hold broadcasting distribution through structurally separate entity which could be wholly owned subsidiary-Impugned order prohibiting issuance of broadcasting licence to nonCanadian applicants; repealing Direction to CRTC (Ineligibility of non-Canadians) effective April 8, 1997-Effect to create, define new class of applicants now eligible to hold broadcasting distribution licences-As result, subsidiary corporations of B.C.Tel deemed to meet Canadian ownership requirements in Direction to CRTC-Without new class of applicants, B.C.Tel, subsidiary corporations would not meet Canadian ownership requirements of Direction to CRTC, could not obtain broadcasting distribution licence-Since B.C.Tel Canadian carrier eligible to operate as telecommunications carrier, government deciding should be allowed, through subsidiary corporations that meet conditions set out in revised Direction, to apply for broadcasting distribution licences-Telecommunications Act, s. 16(1) providing only Canadian-owned and controlled corporations may operate as telecommunications carriers-Exception made to allow B.C.Tel to operate as telecommunications carriers even though not "Canadian-owned and controlled corporations"-Pursuant to s. 16(3) corporation "Canadian-owned and controlled" if Canadians own not less than 80% of corporation's voting shares, 80% of members of board of directors Canadians-Although 80% of B.C.Tel's board of directors Canadians, more than 50% of voting shares owned by non-Canadians-Broadcasting Act, s. 3(1)(a) providing Canadian broadcasting system shall be effectively owned, controlled by Canadians-S. 5(1) providing it is incumbent upon CRTC to regulate, supervise all aspects of Canadian broadcasting system so as to implement broadcasting policy set out in s. 3(1)-Ss. 7, 26 allowing Governor in Council to give directions to CRTC to ensure compliance with Canada's broadcasting policy-Applicant submitting delegated authority given to Governor in Council must be exercised in strict accordance with power creating it i.e. powers given to Governor in Council limited by policy statement set out in Broadcasting Act, s. 3-Authority conferred on Governor in Council legislative: New Brunswick Broadcasting Co., Limited v. Canadian Radio-television and Telecommunications Commission, [1984] 2 F.C. 410 (C.A.)-Application dismissed-Policy set out in s. 3(1)(a) not requiring each and every individual broadcasting undertaking in Canada to be "effectively owned and controlled by Canadians"-Broadcasting Act distinguishing between broadcasting system as whole and individual undertakings comprising system-Had Parliament intended each and every broadcasting undertaking be wholly owned, controlled by Canadians, would have so prescribed-Having not done so, Parliament clearly not intending to dictate all individual broadcasting undertakings be entirely or wholly Canadian owned, controlled-In B.C. 151 licensed cable undertakings representing less than 7.5% of total number of cable undertakings in Canada, or 2.7% of all licensed broadcasting undertakings forming Canadian broadcasting system-Governor in Council not endangering effective ownership, control by Canadians of Canadian broadcasting system by allowing subsidiary corporations of B.C.Tel to obtain licence to carry on distribution undertakings within telecommunications service area of parent companies-In formulating broadcasting policy for Canada, Parliament intending to ensure Canada's national identity, cultural sovereignty maintained, enhanced by Canadian broadcasting system-Distribution subsidiary of B.C.Tel, operating almost exclusively as cable service, will not threaten policy enacted by Parliament-Having two companies not "effectively owned and controlled by Canadians" out of thousands involved in industry not altering Canadian character, control of system as whole-In enacting Broadcasting Act, Parliament not limiting field to broadcasting undertakings owned, controlled by Canadians, but providing Canadian broadcasting system should be "effectively owned and controlled by Canadians"-Parliament entrusted Governor in Council to devise most appropriate means to best implement policy-Governor in Council fully empowered to modify, repeal former Directions if such change consistent with stated policy objectives-Irrelevant that former Directions required corporations to be controlled by Canadians as opposed to allowing exceptions for 'qualified successors'-Broadcasting Act, S.C. 1991, c. 11, ss. 2(1) "broadcasting undertaking", "distribution undertaking", 3, 5 (as am. by S.C. 1995, c. 44, s. 46), 7, 26-Telecommunications Act, S.C. 1993, c. 38, s. 16-Canadian Telecommunications Common Carrier Ownership and Control Regulations, SOR/94-667, s. 17.