T-5512-80
Lount Corporation, Atpro Inc. and Satel Consult
ants Limited (Plaintiffs)
v.
Attorney General of Canada, Minister of Com
munications and Canadian Radio-television and
Telecommunications Commission (Defendants)
Trial Division, Marceau J.—Ottawa, May 26 and
27, 1981.
Practice — Motion to strike pleadings — Defendants seek
to strike out certain paragraphs of plaintiffs' declaration on
the grounds that they are immaterial and may prejudice the
fair trial of the action — Plaintiffs seek a declaration that
their earth station is not subject to licence under the Broad
casting and the Radio Acts — Plaintiffs also seek an order of
injunction restraining the defendants from shutting down the
station or interfering with its operation — Motion allowed —
The allegations made in the disputed paragraphs are totally
irrelevant to the issues raised in the action — Federal Court
Rule 419(1)(b),(d).
MOTION.
COUNSEL:
Georges R. Thibaudeau for plaintiffs.
E. A. Bowie, Q.C. and C. Williamson for
defendants Attorney General of Canada and
Minister of Communications.
Robert J. Buchan for defendant Canadian
Radio-television and Telecommunications
Commission.
SOLICITORS:
Doheny, Mackenzie, Grivakes, Gervais &
LeMoyne, Montreal, for plaintiffs.
Deputy Attorney General of Canada for
defendants Attorney General of Canada and
Minister of Communications.
Johnston & Buchan, Ottawa, for defendant
Canadian Radio-television and Telecommuni
cations Commission.
The following are the reasons for order ren
dered in English by
MARCEAU J.: This motion, brought on behalf of
the defendants pursuant to Rule 419(1)(b) and (d)
of the General Rules of the Court, seeks an order
striking out five paragraphs of the declaration
upon the grounds that they are immaterial and
may prejudice, embarrass or delay the fair trial of
the action.
The plaintiffs are all concerned in a different
capacity with the operation and utilization, at the
Holiday Inn Hotel in Winnipeg, of a certain piece
of equipment described as an earth station, or a
dish antenna, capable of receiving television sig
nals directly off the air, broadcasted and transmit
ted by a United States satellite. In 1980, they were
advised by representatives of the Department of
Communications that their earth station had to be
shut down, failing which prosecution would be
commenced and the equipment seized, on the
grounds that a licence was required for any satel
lite earth receiving station, it being a broadcasting
undertaking which had to be properly authorized
under either the Broadcasting Act, R.S.C. 1970, c.
B-11, or the Radio Act, R.S.C. 1970, c. R-1. The
plaintiffs had no choice but to discontinue the use
of their installation, but they complied with the
order only to avoid seizure and under protest,
claiming that the operation of an earth station did
not infringe the Broadcasting Act and was exempt
from the requirement of a licence under the Radio
Act, since it was not a broadcasting receiving
undertaking within the meaning of the Acts. They
then commenced this action which spells out the
basis for their protest and seeks three specific
reliefs: a) a declaration that the earth station
operated by the plaintiffs is not subject to the
requirement of a licence under the Broadcasting
Act; b) a declaration that it is likewise exempt
from the requirement of a licence under the Radio
Act; and c) an order of injunction restraining the
defendants and their agents and representatives
from shutting down the said station or in any other
way interfering with the operation thereof.
The five paragraphs of the declaration sought to
be struck by this motion read as follows:
I 1. As appears from the remarks of the Minister of Communi
cations made in a speech delivered in the City of Toronto on
October 21st 1980, and as is evident from the actions and
threats issued by the Department of Communications through
its representatives against Lount with respect to the operation
of its Earth Station, the Department of Communications and
the Minister of Communications have embarked on a policy of
general prohibition of the operation of earth stations by hotel
and apartment owners in southern Canada, which receive sig
nals from a U.S. satellite.
14. As a result, the Department of Communications and the
Minister of Communications, in giving enforcement directives
to their agents, employees and representatives to shut down and
seize the Earth Station operated by Lount and to prosecute
Lount, are acting illegally, arbitrarily, discriminatorily and in
virtue of no statutory or other legal authority.
15. The enforcement of this policy against Lount is not only
illegal for the reasons aforesaid, but is arbitrary and abusive in
that the Department of Communications, while complaining
that Lount operates the Earth Station without a radio licence,
stated both verbally and in writing that it will not license the
Earth Station by reason of international agreements to which
Canada is a party, prohibiting the reception of U.S. satellite
signals.
16. Despite such alleged international treaty obligations, the
Minister of Communications, in a speech referred to herein-
above, made it clear that such policy is being enforced in a
selective and discriminatory manner, in that it is enforced
against hotelkeepers or apartment-owners in the urban south of
Canada, while not enforced against individuals receiving satel
lite TV signals for private consumption, nor against parties
operating such earth stations in isolated communities.
17. Plaintiffs further deny that there is any treaty or interna
tional agreement to which Canada is a signatory that has been
enacted as part of the domestic law of Canada and that is
legally binding or enforceable so as to prohibit a citizen of
Canada or entity operating therein from using receiving equip
ment in general and the Earth Station in particular which
receive signals from a U.S. satellite.
It is well established in the jurisprudence of the
Court that a motion to strike under Rule 419 is to
be successful only in plain and obvious cases, but
this, in my view, is such a case.
It seems to me plain and obvious that the allega
tion made in paragraph 11 is clearly immaterial.
The "policy" of the Department of Communica-
tions and of the Minister of Communications may
have nothing to do with the disposition of the
question raised by the action, namely: whether or
not the earth station operated by the plaintiffs is a
broadcasting undertaking which had to be properly
authorized by the Broadcasting Act and licensed
under the Radio Act; and, whether or not "the
seizing and shutting down" of the operation by the
Minister and his representatives, on the basis that
it was not so authorized and licensed, could be
made in virtue of a legal authority given to them
by those Acts.
It seems to me equally plain and obvious that
the allegations made in paragraphs 15, 16 and 17
are totally irrelevant to the issues raised in the
action, while those made in paragraph 14 are
irrelevant in so far as they refer to some arbitrary
or discriminatory action on the part of the Minis
ter or his representatives. As I see it, the plaintiffs,
in their action, contend that the Department and
the Minister have no power under the Broadcast
ing Act or the Radio Act to interfere with the
operation of their earth station. Their contention
does not go any further nor could it go any further
since it is clear from the facts alleged that they
have never applied for a licence and therefore have
never put the Minister in a position to act toward
them in an arbitrary or discriminatory manner
with a view to giving effect to a general policy
required by some international agreement. None
of the reliefs sought has any connection with those
contentions.
For the foregoing reasons I am of the view that
the motion is well founded with respect to para
graphs 11, 15, 16, 17 and with respect to part of
paragraph 14. An order will go accordingly.
ORDER
IT IS HEREBY ORDERED that paragraphs 11, 15,
16 and 17 of the statement of claim in this action
be struck out and that the words "arbitrarily" and
"discriminatorily" in paragraph 14 be deleted.
The defendants are entitled to their costs of this
motion.
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