2012 FC 650, 2012 FC 650

[2014] 1 F.C.R. 142 T-1288-10 2012 FC 650 Commissioner of Official Languages of Canada and Dr. Karim Amellal ( Applicants ) v. CBC/Radio-Canada ( Respondent ) Indexed as: Canada (Commissioner of Official Languages) v. CBC/Radio-Canada Federal Court, Martineau J.—Ottawa, January 9, April 11, 12 and May 29, 2012.

Official Languages — In application for remedy, brought by Commissioner of Official Languages (applicant), under Official Languages Act, s. 77 (Part X), respondent moving to summarily dismiss proceeding on ground programming services at issue subject to Broadcasting Act, S.C. 1991, c. 11 , Canadian Radio-television and Telecommunications Commission (CRTC) having exclusive jurisdiction in those matters — Applicant seeking declaration that respondent subject to Official Languages Act, failing to comply with s. 41 thereof — After conducting investigation, applicant concluding that respondent failing to comply with Official Languages Act, s. 41(2) since not holding prior consultations with official language minority community (OLMC) of southwestern Ontario regarding decision to make significant budget cuts on radio programming thereof — Whether Federal Court having concurrent jurisdiction with CRTC herein; if so, which concurrent legal scheme governing dispute — No conflict existing between Official Languages Act, Broadcasting Act; Federal Court, to which Official Languages Act,

Part X applying, having prima facie jurisdiction to determine scope of Official Languages Act, s. 41(2), to decide whether failure to comply with duty to take positive measures occurring herein — In both statutes, Parliament’s general will to foster development, enhance vitality of OLMCs — However, general jurisdiction of Federal Court identified under Official Languages Act,

Part X to grant “remedy” in cases of noncompliance with Official Languages Act necessarily only concurrent with CRTC’s specialized jurisdiction in broadcasting matters under Broadcasting Act,

Part II — Complaints made to Commissioner could appropriately be decided on merits by CRTC — Fact that CRTC considering other factors in addition to language issue not sufficient for Federal Court to entertain application for remedy at that stage — CRTC in better position than Federal Court to assess impact of budget cuts on respondent’s programming, to grant applicants appropriate relief if applicable — Not possible to predict final outcome or respondent’s arguments in response to applicants’ intervention — Given climate of uncertainty, Federal Court exercising judicial discretion, ordering stay of proceedings in present case while safeguarding rights of parties.

Federal Court Jurisdiction — Applicant (Commissioner of Official Languages) instituting proceedings under Official Languages Act,

Part X, on ground respondent subject to Official Languages Act, failing to comply with s. 41 thereof since not taking “positive measures” as required — Whether Federal Court having concurrent jurisdiction with Canadian Radio-television and Telecommunications Commission (CRTC) to resolve dispute herein — Federal Court, to which Official Languages Act,

Part X applying, having prima facie jurisdiction to determine scope of Official Languages Act, s. 41(2), to decide whether failure to comply with duty to take positive measures occurring herein — Thus, Federal Court having jurisdiction under Official Languages Act, s. 77 according to concurrent jurisdiction model— However, that jurisdiction necessarily only concurrent with CRTC’s specialized jurisdiction in broadcasting matters under Broadcasting Act,

Part II— CRTC in better position than Federal Court to assess impact of budget cuts on respondent’s programming, to grant applicants appropriate relief if applicable. Broadcasting — Applicant (Commissioner of Official Languages) conducting investigation, concluding that respondent failing to comply with Official Languages Act, s. 41(2) since not holding prior consultations with official language minority community (OLMC) of southwestern Ontario regarding decision to make significant budget cuts on radio programming thereof — Applying for remedy under Official Languages Act, s. 77 (Part

X) for declaration that respondent failing to comply with s. 41 thereof — Respondent moving to summarily dismiss proceeding on ground programming services at issue subject to Broadcasting Act, S.C. 1991, c. 11 , Canadian Radio- television and Telecommunications Commission (CRTC) having exclusive jurisdiction in those matters — General jurisdiction of Federal Court identified under Official Languages Act,

Part X to grant “remedy” in cases of noncompliance with Official Languages Act necessarily only concurrent with CRTC’s specialized jurisdiction in broadcasting matters under Broadcasting Act,

Part II — Complaints made to Commissioner could appropriately be decided on merits by CRTC — CRTC in better position than Federal Court to assess impact of budget cuts on respondent’s programming, to grant applicants appropriate relief if applicable. This was an application by the Commissioner of Official Languages (applicant) for a remedy under

section 77 (Part

X) of the Official Languages Act and for a declaration that the respondent is subject to the Official Languages Act and that it failed to comply with

section 41 thereof. The proceeding follows an investigation by the applicant, concluding that the respondent failed to comply with subsection 41(2) of the Official Languages Act , which requires that federal institutions take “positive measures”, because it had not held prior consultations with the official language minority community (OLMC) of southwestern Ontario or conducted an analysis of the impact of its decision to make significant budget cuts on CBEF Windsor’s radio programming.

The respondent raised a preliminary issue, asking the Federal Court to summarily dismiss the proceeding on the ground that its programming services are subject to the Broadcasting Act , S.C. 1991, c. 11 and that the Canadian Radio-television and Telecommunications Commission (CRTC) has exclusive jurisdiction in those matters. The respondent submitted that its programming activities are governed by the broadcasting policy for Canada, the conditions of licence and the expectations set out in the CRTC’s decisions made under the Broadcasting Act .

Alternatively, the respondent argued that the CRTC was in a better position to make informed decisions on the negative impact of the budget cuts at issue. The applicants argued, inter alia , that there is no conflict between the Broadcasting Act and the Official Languages Act and that the Federal Court has concurrent jurisdiction with the CRTC and is in a better position to decide whether the respondent breached its duty to take “positive measures” pursuant to subsection 41(2) of the Official Languages Act to enhance the vitality of Canada’s English and French linguistic minority communities.

CBEF Windsor is the only French-language radio station in southwestern Ontario. Given its significant financial shortfall, the respondent implemented general budget cuts throughout the country in 2009. As a result, the three programs that were produced in Windsor were

consequently cancelled, angering many of the region’s Francophone residents. Many complaints were made to the applicant regarding CBEF Windsor’s programming. Further to its investigation, the applicant recommended in particular that the respondent review its decision concerning CBEF Windsor in light of the duty of federal institutions under

section 41 of the Official Languages Act to take “positive measures” and to assess the impact of its decisions on OLMCs. However, the respondent from the outset refused to cooperate and did not follow up on the applicant’s recommendations. The applicant sought an order requiring the respondent to review its decision concerning CBEF Windsor and to make the necessary arrangements to compensate for the negative impact of this decision on the OLMC of southwestern Ontario.

In the meantime, the CRTC began the public process of renewing all of the respondent’s licences and intended to hold a public hearing to examine, inter alia , the respondent’s budget plans and the renewal of its licences. The main issue was whether the Federal Court has concurrent jurisdiction with the CRTC in this case, and if it does, which concurrent legal scheme should govern the dispute.

Held , the proceedings should be stayed to allow the CRTC to make its decision on the applications for renewal of the respondent’s licences and on any complaint or intervention by the applicants in respect of the decrease in local and/or regional programming hours broadcast by CBEF Windsor. Based on the evidence in this case, there is no conflict between the Official Languages Act and the Broadcasting Act ; the court to which

Part X applies, that is, the Federal Court (section 76 of the Official Languages Act ), has prima facie jurisdiction to determine the scope of subsection 41(2) of the Official Languages Act and to decide whether there was a failure to comply with the duty to take positive measures. The Official Languages Act reflects a social and political compromise; it gives the applicant the powers of a true linguistic ombudsman and creates a judicial process that provides for relief in the cases set out at subsection 77(1) of the Official Languages Act . Thus, the Federal Court has jurisdiction, strictly speaking, under

section 77 of the Official Languages Act according to the concurrent jurisdiction model. To decide which of the concurrent legal schemes should govern the dispute herein, two elements had to be analyzed: the nature of the dispute to determine its essential character and whether Parliament intended for the dispute to be governed by the Broadcasting Act or by the Official Languages Act , depending on what the relevant legal provisions indicated. Whereas the Official Languages Act constitutes a comprehensive code on linguistic rights, the Broadcasting Act also constitutes a comprehensive code on broadcasting.

The Broadcasting Act applies to broadcasting undertakings, which include distribution undertakings and programming undertakings, including networks ( Broadcasting Act , subsections 2(1), 4(3) ). The word “programming” extends to the total process of gathering, assembling and putting out the programs generally.

Full effect must be given to Parliament’s intent that the specific procedure in accordance with which the national public broadcaster provides its program offering, over the full network and in the regions, be substantively established by the CRTC as part of the public process to issue and renew the respondent’s licences. There is no conflict between the purposes of the Official Languages Act and those of the Broadcasting Act .

In both statutes, the general will of Parliament is to foster the development and enhance the vitality of OLMCs while leaving the choice of means in the hands of the federal institutions concerned and the broadcasters, including the national public broadcaster. The same may be said of the legal principles for the application of both statutes. The government cannot interfere with the respondent’s programming choices ( Official Languages Act , subsections 4(1), 35(2), 46(5), 52(2)).

However, freedom of expression and journalistic independence do not constitute a general licence allowing the respondent to avoid implementing the linguistic aspects of the broadcasting policy for Canada, to ignore the regions and the OLMCs and to decrease the contribution of artists and other local talents in its national and regional programming. As well, the respondent’s programming for the people of Canada must include a certain proportion of regionally produced programs, with which listeners and television viewers will be able to identify.

This is especially true in the case of OLMCs, which are threatened by assimilation and count on public radio and public television to preserve their language and cultural identity. The federal government must comply with the broadcasting policy in full, not only in letter but also in spirit. In particular, the will of Parliament is for a range of broadcasting services in French and English to be extended to all Canadians as resources become available ( paragraph 3(1) (

k) of the Broadcasting Act ). As regards the respondent’s programming, the public broadcaster’s mandate expressly includes promoting both official languages, preserving the identity of French- speaking and English-speaking minorities within the Canadian federation and contributing to shared national consciousness and identity (subparagraphs 3(1)( m )(iv), (

v) and (vi) of the Broadcasting Act ). That is the law, and everyone must obey it, including Her Majesty in right of Canada or a province ( subsection 4(1) of the Broadcasting Act ). The duty to take “positive measures” set out at subsection 41(2) of the Official Languages Act must be interpreted and applied in light of the programming undertakings already assumed by the respondent under the Broadcasting Act or which the CRTC may require in the form of expectations and conditions of licence. Therefore, the general jurisdiction of the Federal Court identified under

Part X of the Official Languages Act to grant a “remedy” in the event of noncompliance with the Official Languages Act is necessarily only concurrent with the CRTC’s specialized jurisdiction in broadcasting matters under

Part II of the Broadcasting Act . The complaints made to the Commissioner could appropriately be decided on the merits by another authority: the CRTC. The process of renewing the respondent’s licences is the forum favoured by Parliament for discussions to be held on the decrease in local or regional French-language programming.

Ten years having passed since the respondent’s licences were last renewed, it was therefore high time that the respondent provide Canadians with an explanation of its programming choices and of its vision for the future in a setting where the interested parties will have the opportunity to be heard. In this case, the best forum would be the CRTC, which acts as a regulator and lawmaker in the area of broadcasting.

Since the 2009 cutbacks were made over three years ago, it would be difficult to see how today the Federal Court could legally force the resumed broadcasting of cancelled programs or set a minimum threshold for local or regional production. This power belongs instead to the CRTC, which has an overall picture of the respondent’s activities and its future plans for programming produced in the major centres and in the regions. There was nothing in this case showing that it would not be possible for the complaints made to the Commissioner in 2009 to be decided appropriately on the merits.

The fact that the CRTC considers other factors in addition to the language issue was not, in itself, sufficient for the Federal Court to agree to entertain the application for a remedy at that stage. While subsection 77(4) of the Official Languages Act allows the Federal Court to grant such remedy as it considers appropriate, the

exercise of that power cannot directly conflict with the CRTC’s powers. Parliament has stated in the Broadcasting Act that the objectivesof the broadcasting policy for Canada can best be achieved by providing for the regulation and supervision of the Canadian broadcastingsystem by a single independent public authority, namely the CRTC (Broadcasting Act, subsection 3(2)).

Consequently, although theFederal Court does have jurisdiction to entertain the application under sections 76 to 81 of the Official Languages Act, the CRTC is in abetter position than the Federal Court to assess the impact of the budget cuts on the respondent’s programming, including as broadcastby CBEF Windsor, and to grant the applicants appropriate relief if applicable. The applicants had a legitimate expectation to be heard and to express their point of view within the process that has been initiated tohave the respondent’s licence renewed.

They also had a legitimate expectation that the CRTC would conduct an analysis of the impacton the OLMC of southwestern Ontario of its potential decision to renew the licence of the radio programming undertaking operated bythe affiliated CBEF Windsor station. It was not possible to predict the final outcome or the respondent’s arguments in response to the applicants’ intervention and the otherinterested parties.

Given the current climate of uncertainty, the Federal Court exercised its judicial discretion, ordering a stay ofproceedings in this case while safeguarding the rights of the parties, which was the fairest and most equitable course. The FederalCourt’s jurisdiction to issue any other direction or make any other order was reserved in the interim. STATUTES AND REGULATIONS CITED Access to Information Act, R.S.C., 1985, c. A-1, s. 68.1 (as enacted by S.C. 2006, c. 9, s. 159). Broadcasting Act, R.S.C., 1985, c. B-9. Broadcasting Act, S.C. 1967-68, c. 25.

Broadcasting Act, S.C. 1991, c. 11, ss. 2(1) “broadcasting undertakings”, 3, 4(1),(3), 9 (as am. by S.C. 1994, c. 26, s. 10(F)), 12, 13, 17,18 (as am. by S.C. 2001, c. 34, s. 32(E)), 19, 23, 24, 25, 26(1), 31(2), 35(2), 40, 46(4),(5), 52, 54 (as am. by S.C. 1994, c. 18, s. 20), 55. Canadian Human Rights Act, R.S.C., 1985, c. H-6. Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 2(1) “federal board, commission or other tribunal” (asam. idem, s. 15), 18 (as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26), 23 (as am. idem, s. 32), 50(1) (as am. idem, s. 46).

Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 25, 41 (as am. by S.C. 2005, c. 41, s. 1; 2006, c. 9, s. 23), 42 (as am. by S.C.1995, c. 11, s. 27), 56(1),(2), 58(1), 76 (as am. by S.C. 2002, c. 8, s. 183), 77 (as am. by S.C. 2005, c. 41, s. 2), 81, 82(1). Official Languages Act, S.R.C. 1970, c. O-2. Radiocommunication Act, R.S.C., 1985, c. R-2. CASES CITED applied: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, 237 D.L.R. (4th) 413, [2011] 12W.W.R. 1. considered: LaRoque v. Société Radio-Canada, , 98 O.R. (3d) 220 (Sup.

Ct.); Canadian Union of Public Employees v. CanadianBroadcasting Corp., (FC), [1991] 2 F.C. 455, (1991), 50 Admin. L.R. 237, 46 F.T.R. 259 (T.D.); Vlug v. CanadianBroadcasting Corp., (C.H.R.T.); Canadian Broadcasting Corporation v. Canada (Information Commissioner), 2011FCA 326, 344 D.L.R. (4th) 341, 423 N.R. 357; Quigley v. Canada (House of Commons), 2002 FCT 645, [2003] 1 F.C. 132, 43 Admin.L.R. (3d) 218, 220 F.T.R. 221; Genex Communications v.

Canada (Attorney General), 2005 FCA 283, [2006] 2 F.C.R. 199, 260 D.L.R.(4th) 45, 338 N.R. 268; Canadian Broadcasting Corporation (August 31, 2001), Decision CRTC 2001-529. referred to: Trieger v. Canadian Broadcasting Corp. (1988), (ON SC), 66 O.R. (2d) 273, 54 D.L.R. (4th) 143 (H.C.J.); Mahar v.Rogers Cablesystems Ltd., , 25 O.R. (3d) 690, 34 Admin. L.R. (2d) 51 (Sup. Ct.); Norton v. VIA Rail Canada, 2009FC 704; Québec (Commission des droits de la personne et des droits de la jeunesse) v. Québec (Attorney General), 2004 SCC 39, [2004]2 S.C.R. 185, 240 D.L.R. (4th) 577, 15 Admin.

L.R. (4th) 1; Canada (Attorney General) v. Viola, (FCA), [1991] 1F.C. 373, (1990), 123 N.R. 83 (C.A.); R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768, (1999), 173 D.L.R. (4th) 193, 134C.C.C. (3d) 481; Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), 2004 FCA 263, [2004] 4 F.C.R.276, 243 D.L.R. (4th) 542, 22 Admin. L.R. (4th) 161; DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194, 302 D.L.R.(4th) 632, 384 N.R. 50; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, (SCC),[1986] 1 S.C.R. 704, (1986), 73 N.B.R. (2d) 236, 28 D.L.R. (4th) 1; Weber v.

Ontario Hydro, (SCC), [1995] 2 S.C.R.929, (1995), 125 D.L.R. (4th) 583, 30 Admin. L.R. (2d) 1; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners,2000 SCC 14, [2000] 1 S.C.R. 360, 183 D.L.R. (4th) 14, 251 N.R. 16; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R.666, 266 D.L.R. (4th) 542, 51 C.C.P.B. 163; CKOY Ltd. v. Her Majesty The Queen on the relation of Lorne Mahoney, (SCC), [1979] 1 S.C.R. 2, (1978), 90 D.L.R. (3d) 1, 43 C.C.C. (2d) 1; Metromédia CMR Montréal Inc. (June 21, 1999), Decision CRTC99-151; Société Radio-Canada v.

Métromédia Cmr Montréal Inc., , 254 N.R. 266 (F.C.A.). AUTHORS CITED

Canadian Radio/television and Telecommunications Commission. Report to the Governor in Council on English- and French-language broadcasting services in English and French linguistic minority communities in Canada , 30 March 2009, online: <http://www.crtc.gc.ca/eng/BACKGRND/language/ol0903-lo0903.pdf>. Office of the Commissioner of Official Languages. Shadows over the Canadian Television Landscape: The Place of French on the Air and Production in a Minority Context . Ottawa, January 2009, online: <http://www.ocol-clo.gc.ca/docs/e/televisionlandscape_paysagetelevisuel_e.pdf>.

Order respecting the distribution of the French-language television service of TVA Group Inc., Public Notice CRTC 1999-27, 12 February 1999. APPLICATION by the Commissioner of Official Languages for, inter alia , a remedy under

section 77 of the Official Languages Act . The respondent moved to summarily dismiss the proceeding on the ground that its programming services are subject to the Broadcasting Act , S.C. 1991, c. 11 and that the Canadian Radio-television and Telecommunications Commission (CRTC) has exclusive jurisdiction in those matters. Proceedings stayed. APPEARANCES Amélie Lavictoire and Pascale Giguère for applicants. Guy Pratte and Nadia Effendi for respondent. SOLICITORS OF RECORD Office of the Commissioner of Official Languages of Canada, Legal Affairs Branch , Ottawa, for applicants.

Borden Ladner Gervais LLP , Ottawa, for respondent. The following is the English version of the reasons for order and order rendered by [ 1 ] Martineau J. : In 2009, the Canadian Broadcasting Corporation/Société Radio-Canada (Corporation) made substantial nationwide budget cuts. Francophones in the region of southwestern Ontario, including Dr.

Karim Amellal, complained to the Commissioner of Official Languages of Canada (Commissioner) about the negative impact of the decrease in local or regional content in CBEF Windsor’s radio programming. [ 2 ] Following his investigation, the Commissioner concluded that the Corporation had failed to comply with subsection 41(2) [as am. by S.C. 2005, c. 41, s. 1 ] of the Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31 (OLA), which requires that federal institutions take “positive measures”, because it had not held prior consultations with the official language minority community (OLMC) of southwestern Ontario or conducted an analysis of the impact of its decision on that community.

In 2010, the Commissioner instituted this proceeding under

Part X [sections 76 to 81] of the OLA, and Dr. Amellal was added as an applicant. [ 3 ] Today, the Corporation is asking the Court to summarily dismiss this proceeding on the ground that its programming services (radio and television) are subject to the Broadcasting Act , S.C. 1991, c. 11 (BA) and that the Canadian Radio-television and Telecommunications Commission (CRTC) has exclusive jurisdiction in those matters.

Alternatively, the CRTC is in a better position [ translation ] “to make informed decisions” regarding the negative impact of budget cuts on CBEF Windsor’s regional programming. [ 4 ] The applicants are of the opinion that there is no conflict between the BA and the OLA, and that the Federal Court has concurrent jurisdiction with the CRTC and is in a better position to decide whether the Corporation breached its duty, set out at subsection 41(2) of the OLA , to take “positive measures” to enhance the vitality of Canada’s English and French linguistic minority communities and assist their development.

This requirement applies not only to the Corporation’s communications with the public but also to its programming, such that, in the event of noncompliance, the Federal Court may grant such remedy as it considers appropriate and just (section 77 [as am. idem , s. 2 ] of the OLA). [ 5 ] In order to resolve the dispute in a manner that is fair, while being as inexpensive and expeditious as possible, the parties have agreed that in this application to the Federal Court for a remedy, the Trial Judge will rule on the preliminary jurisdictional issue raised by the Corporation, if the evidence in the record so permits.

BACKGROUND [ 6 ] Created in 1936 by

an Act of Parliament, and modelled on the BBC [British Broadcasting Corporation], the Corporation is Canada’s national public broadcaster. The Corporation has to provide, in both official languages, radio and television services incorporating a wide range of programming that informs, enlightens and entertains ( paragraph 3(1) (

l) of the BA ). We will return later to the particular aspects of its mandate. In June 2011, the Corporation had approximately 8 660 employees, 82 radio stations and 27 television stations producing programs all over the country. [ 7 ] The French-language radio networks are la Première Chaîne and Espace Musique. The network programs are produced primarily in Montréal and broadcast on all of the affiliated stations. La Première Chaîne, with its local and/or regional programming, is broadcast throughout the country by some 20 radio stations, including CBEF in Windsor, Ontario.

Approximately 80 percent of la Première Chaîne’s weekly programming is national in character. [ 8 ] In the 1990s, CBEF Windsor, which interests us here, had approximately 25 employees. It is the only French-language radio station in southwestern Ontario, where approximately 35 000 Francophones live. In this environment dominated by English and the Anglo-Saxon and American cultures, Francophones rely heavily on the preservation of a community-based, good-quality public radio service where they can share information and views and see a reflection of who they are. In 2001, when the Corporation’s licences were

last renewed, CBEF broadcast about 36.5 hours a week of local or regional Windsor programs. [9] As a Crown corporation, the Corporation has some independence from government control. It is funded both by the public purseand commercial revenues (subscription fees and advertising). Approximately 60 percent of the funding comes from the budget, allocatedto it on a yearly basis from parliamentary appropriations. Therefore, every year, the Corporation submits its corporate plan to theMinister of Canadian Heritage (Minister), who is responsible for tabling a

summary before each House of Parliament (sections 54 [asam. by S.C. 1994, c. 18, s. 20] and 55 of the BA). [10] Although labour and operational costs continue to increase every year, it indeed appears that the amount of public fundingallocated to the Corporation does not follow the same upward trend, remaining steady at approximately $1 billion annually.Consequently, to balance its operating budget, the Corporation has to be able to rely on commercial revenues.

However, under thecurrent licensing conditions, the Corporation is not authorized to run commercial advertising on the radio, with the result that thisessential public service necessarily runs a deficit. [11] In 2009, however, the Corporation faced a considerable shortfall of $171 million, apparently attributable to the expected decreasein advertising revenue—to which must be added the shortfall between the funding obtained from the Treasury Board for its salary baseand the actual increase in wages, as well as other factors, such as increased production costs.

Since it was not authorized to borrow funds,the Corporation had to explore other options—all of which were rejected by the government. It was therefore forced to eliminatepositions throughout the country, reduce its programming costs and freeze discretionary spending. [12] Consistent with its Recovery Plan, the Corporation abolished approximately 800 positions—60 percent of its overall budgetbeing given over to salaries—which generated a further $36 million in downsizing costs. For all French services, the cuts affected over300 employees, including 64 in the regions.

Needless to say, program production, and thus programming, was permanently affected.

Inmaking those cuts, the Corporation states having wanted to protect the regions as much as possible by limiting the cuts’ effects onregional programs and by mainly targeting the French and English national networks and their supporting components, where 83 percentof the cuts were made. [13] In Windsor, the 2009 budget cuts diminished CBEF’s staff, which shrunk from ten employees (nine of whom were assigned toradio and one, to television) to three (a journalist-videographer, a broadcast journalist and a reporter in charge of producing localvignettes).

It should be borne in mind that, in January 2009, three (of about thirty) programs were produced in Windsor: • “Bonjour le monde”, aired from Monday to Friday from 6 a.m. to 9 a.m., which dedicated about 15 minutes per hour to local content,including news reports; • “Grand Lacs Café Windsor”, aired on Saturday from 7 a.m. to 9 a.m., which dedicated about 10 minutes per hour to local content; • “Au détroit de la nuit”, aired on Monday from midnight to 4 a.m., a national program without any regional content, broadcastnationwide.

These three programs were broadcast for the last time on June 19, 20, 21 and 22, 2009, respectively. According to the Corporation, thethird program was cancelled for programming reasons and not as part of the Recovery Plan. According to the most recent information,CBEF Windsor still broadcasts about five hours a week of locally produced programs. [14] Unsurprisingly, these changes to CBEF Windsor’s radio programming drew the ire of many of the region’s Francophoneresidents. SOS CBEF, a volunteer association, was founded. Applicant Dr. Amellal is the association’s vice-president.

Apparently notknowing where to turn, members of SOS CBEF made individual complaints to the Corporation, the Minister, the Commissioner and theCRTC. [15] In fact, some 876 complaints were made to the Commissioner about CBEF Windsor’s programming. Incidentally, theCommissioner did not investigate the impact of these cuts on station CBE, which broadcasts Radio One with its local and/or regionalEnglish-language programming. On July 9, 2009, the Superior Court of Justice of Ontario refused to issue an interlocutory injunction,citing lack of jurisdiction: LaRoque v. Société Radio-Canada, , 98 O.R. (3d) 220 (LaRoque).

The applicants’objective was to maintain the status quo while the Commissioner investigated the complaints made to him. [16] In LaRoque, Justice Templeton of the Superior Court of Justice of Ontario made the following observation at paragraph 41 of hisdecision: Having reviewed all of the evidence, it is my impression that there has been a breakdown in communication with the francophonepublic concerning the rationale and criteria used in the decision-making process by the SRC.

The reduction in local Windsor content willundoubtedly have a deleterious effect on the sense of sharing, support and intimacy from which this isolated francophone communityderives its strength and identity. In my view, expert evidence is not required for such an observation. No matter the language, people relyon local media newspapers, television and/or radio to learn of matters concerning the community in which they live.

A reduction of thetime or space available to broadcast local affairs will have an impact on the community as a whole. [Emphasis added.] [17] Although the injunction application was dismissed, it was absolutely clear to Justice Templeton that CBEF Windsor “serves as apillar for the francophone community, enabling them to live in French” (LaRoque, above, at paragraph 12).

Nonetheless, the judge wasof the opinion that, by determination of Parliament, it was necessary to approach the CRTC—the specialized body responsible formonitoring and regulating radio broadcasting—regarding the dispute over the Corporation’s programming, and that this dispute “requiresthe adjudicator deciding the case to both understand the objectives of the Canadian Broadcasting system and its mandate pursuant to[section] 3 of the [BA] and assess the impact of financial constraints on those objectives” (LaRoque, above, at paragraph 51). [18] That said, Justice Templeton did not rule out the possibility that the Commissioner could make a concurrent application to theFederal Court if he is of the opinion that the Corporation, as a federal institution, failed to comply with the OLA (LaRoque, above, atparagraph 55).

[ 19 ] In June 2010, following his investigation, the Commissioner recommended that the Corporation review its decision concerning CBEF Windsor in light of the duty of federal institutions, under

section 41 [as am. by S.C. 2005, c. 41, s. 1 ; 2006, c. 9, s. 23 ] of the OLA , to take “positive measures”. At the same time, the Commissioner recommended that the Corporation set up actual mechanisms to consult on and assess the impact of its decisions on OLMCs. However, from the outset, the Corporation refused to cooperate and did not follow up on the Commissioner’s recommendations, which resulted in this application for a remedy. [ 20 ] At this stage, presuming that the applicants’ allegations are true, the 2009 budget cuts come on top of other cutbacks made over the course of previous years.

If the cumulative effects of these cutbacks are considered from the point of view of local and/or regional programming, their impact on the OLMC of southwestern Ontario is considerable. [ 21 ] However, according to the Commissioner, federal institutions have the duty, under subsection 41(2) of the OLA , to: (

a) Take “positive measures”, compatible with the mandate of each institution, to enhance the development of OLMCs. However, every institution has some discretion in selecting those measures; and (

b) Not hinder the development of any OLMC. In 2009, there was no true prior consultation with OLMCs, particularly when the Corporation did not really measure the impact of these cutbacks on the vitality of the OLMC of southwestern Ontario. [ 22 ] Nevertheless, the Corporation is seeking to maintain some dialogue with the OLMCs. In addition, although from a regulatory perspective the minimum thresholds for local or regional content are currently subject not to the conditions of licence, but only to the CRTC’s expectations, the Corporation voluntarily set up a panel for the regions in 2000.

However, this is not a mechanism for engaging in prior consultations or for challenging and reviewing far-reaching corporate decisions made in the Corporation’s highest echelons, such as the 2009 budget cuts, affecting staff and programming. [ 23 ] In passing, following the official announcement of the 2009 cutbacks, the Corporation’s representatives did try to calm matters down throughout the country by giving ad hoc explanations of its Recovery Plan and the reasons for the cuts in the regions.

This did not stop SOS CBEF from continuing to take action against the Corporation; it seems that the few accommodations later made to CBEF’s regional programming, which now comes largely from Toronto, failed to satisfy the members of the Francophone community. [ 24 ] In the meantime, the CRTC began the public process of renewing all of the Corporation’s licences. Both the Commissioner and Dr. Amellal announced that they wished to intervene in this process.

Unfortunately, the public hearings related to the licence renewals were postponed several times because of operational uncertainty related to the financial aspects of the Corporation’s budget (Broadcasting notices of consultation 2011-379, 2011-379-1 and 2011-379-2). [ 25 ] According to the latest information, the CRTC intends to begin a public hearing, as of November 19, 2012, to examine, in detail, both the Corporation’s performance and budget plans and the renewal of its licences.

As early as April 2012, the Corporation announced that it wanted the CRTC to amend the licences for Radio Two, Espace Musique and their affiliated stations to allow national advertising to be broadcast, which would provide it with a means to obtain additional funding.

In this regard, the CTRC is of the opinion that approving these amendments could have “perceptible effects on the way CBC radio implements its mandate over the next few years” (letter from John Traversy, Secretary General of the CRTC, to Hubert Lacroix, President and Chief Executive Officer of the Corporation, dated May 18, 2012, and entered in the CTRC’s public record). [ 26 ] Ultimately, the evidence in the record shows that the federal government simply has not budged.

However, the Standing Senate Committee on Official Languages has already publicly announced that it has undertaken a study of the Corporation’s duties under the BA and the OLA. A central focus of the Senate review is to determine whether the Corporation is still meeting the specific needs of OLMCs, at both the national and regional levels and through every form of media (television, radio and Internet). The Senate Committee also intends to determine whether the Corporation is fulfilling the requirements of

Part VII [ sections 41 to 45] of the OLA by taking positive measures for the vitality of OLMCs and the promotion of linguistic duality. Its report is due out in autumn 2012.

JURISDICTIONAL ISSUE [ 27 ] Under subsection 56(1) of the OLA , it is the duty of the Commissioner to take all actions and measures within the authority of the Commissioner with a view to ensuring recognition of the status of each of the official languages and compliance with the spirit and intent of the OLA, including in relation to the advancement of English and French (Part VII of the OLA). [ 28 ] To fulfill that purpose, the Commissioner has the duty to investigate either on his own initiative ( subsection 56(2) of the OLA ) or in response to any complaint made ( subsection 58(1) of the OLA).

This is not the first time that the Commissioner has examined the Corporation’s activities as part of the federal government’s commitment to enhance the vitality of OLMCs (subsection 41(1) of the OLA). [ 29 ] This application for a remedy made under

Part X of the OLA is important for all of the parties to this case. The CRTC did not ask to intervene but did assist counsel by locating for them and providing them with the relevant documentation required by the Federal Court. This is a test case.

Many other OLMCs, including those in Yellowknife in the Northwest Territories, Winnipeg and Thompson in Manitoba, Sudbury in Ontario and Sydney in Nova Scotia disagree with the cutbacks made in 2009 and the decrease in the regional and/or local programming offered. [ 30 ] In this case, rather than taking a head-on approach against the federal government, which seems largely responsible for the Corporation’s lack of funding, the Commissioner is claiming to have general oversight over all of the public broadcaster’s decisions that could affect the vitality of French and English and the development of OLMCs.

In sum, the Commissioner is asking the Federal Court to examine the legality of the Corporation’s actions with respect to the duty to take “positive measures” set out at subsection 41(2) of the OLA , with which the Corporation is quite rightly taking issue. [ 31 ] More specifically, in the course of these legal proceedings, during the examination of its representatives, the Corporation objected to their being examined regarding the internal discussions preceding or surrounding the budget cuts and the choices made by

management.

Rather than hear the appeals of the interlocutory decisions made by Prothonotary Tabib, the Court, with the parties’ consent, held hearings in January and April 2012 to deal with the jurisdictional issue and has already scheduled hearings on the merits to be held in October 2012, if necessary. [ 32 ] Today, the Corporation contends that this application for a remedy must be summarily dismissed on the ground that its programming activities, including the transmission and distribution of all radio broadcast services, are governed exclusively by the broadcasting policy for Canada, the conditions of licence and the expectations set out in the CRTC’s decisions made under the BA ( sections 3 , 18 [as am. by S.C. 2001, c. 34, s. 32 (E)], 19 and 23 to 25 of the BA).

Furthermore,

section 12 of the BA provides that a complaint may be made with the CRTC where any person has failed to do any act or thing that the person is required to do pursuant to

Part II [sections 5 to 13] or any applicable regulation, licence, decision or order or is doing any act or thing in contravention thereof, a

section which the co-applicant, Dr. Amellal, made use of. Unfortunately, to the great frustration of those who made complaints in 2009 about the decrease in regional or local programming, the CRTC made it known that those complaints were entered in the public record for the Corporation’s application to renew its licences. [ 33 ] From the outset, the Corporation has taken up a line already very familiar to its principal protagonist, the Commissioner, since the Corporation used the same type of argument in the 1990s.

Following the decrease in public funding, the Corporation had announced, in September 1996, budget cuts then totalling $414 million (approximately one third of the Corporation’s operational budget) spread over three years (1994–1995 to 1997–1998).

In June 1997, the Commissioner had produced his investigation report on the complaints regarding the federal government’s responsibility for the Corporation’s budget cuts and programming changes. [ 34 ] The fact that the CRTC was designated by Parliament as the body in charge of regulating and monitoring all aspects of the Canadian broadcasting system, including the national broadcaster, is not contested by the applicants, although they do emphasize that the OLA and the BA have separate and complementary purposes, whereas Parts I [section 4] to V [sections 4 to 38] of the OLA prevail over any inconsistencies between the BA and the regulations made under it ( subsection 82(1) of the OLA).

The discussions between the Commissioner and the Corporation to arrive at a solution that would allow the Corporation to remain independent while acknowledging its duties under the OLA were a failure on account of a disagreement over the definition and scope of the notion of “programming”. [ 35 ] In any event, the Corporation states that, since 2005 (that is, since the amendments made to Parts VII and X of the OLA came into force), it has been complying with the duty set out at

section 41 of the OLA as regards its “non-programming” activities. It thus submits to the Minister detailed annual action plans and status reports. These set out the positive measures taken to enhance the vitality and development of the OLMCs. It goes without saying that this annual action plan confers no right of consultation over budgetary and programming decisions. However, the question of how

Part VII of the OLA applies to the Corporation’s programming activities has never been ruled on by the courts. [ 36 ] However, the Corporation concedes that, in its communications with the public (excluding programming activities), it must comply with all of the applicable provisions of

Part IV [sections 21 to 33] of the OLA (Communications with and services to the public). The Corporation also acknowledges that it is subject to

Part V (Language of work) and

Part VI [sections 39 to 40] (Participation of English-speaking and French-speaking Canadians). As for the duty set out at

section 41 , found at

Part VII (Advancement of English and French), this can only apply to the Corporation’s “non-programming” activities. [ 37 ] In passing, the Commissioner gave consideration in 2009 to television production for minority communities and concluded [at page II], in this regard, that “[t]he Government of Canada may not be able to meet its obligations and commitments under

Part VII of the Official Languages Act if it allows the Canadian broadcasting system to broadcast programs primarily in a language that does not pass on Canada’s Francophone culture”.

As a result, he had proposed ways of improving the production and broadcasting of programs that reflect Francophone culture, a number of which were directed at the national public broadcaster (Commissioner of Official Languages, Shadows over the Canadian Television Landscape: The Place of French on the Air and Production in a Minority Context , Ottawa, January 2009). [ 38 ] In particular, the Commissioner was of the opinion that the Corporation should show greater transparency in order to fully perform its duties under the OLA . The Corporation’s status reports on the results of implementing

section 41 of the OLA and its reports to the CRTC were thus to provide a breakdown of expenditures for official language programs in a minority context and include the number of programming hours.

That being said, the Commissioner did not seem to call into question the Corporation’s power to cut staff in the regions or decrease the number of regional and/or local production hours, whether for television or radio. [ 39 ] In 2010, therefore, the Commissioner took an important step when he questioned the legality of the Corporation’s decision-making process that resulted in the 2009 cutbacks. [ 40 ] Consequently, in his amended notice of application, the Commissioner asked the Federal Court to make various declarations and grant various remedies under

section 77 of the OLA—and

section 18 [as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26 ] of the Federal Courts Act , R.S.C., 1985, c. F-7 [

section 1 (as am. idem , s. 14 )] (FCA), if necessary—to the effect that the Corporation is subject to the OLA , particularly

Part VII, and that it failed to comply with

section 41 of the OLA when, in June 2009, it made significant budget cuts to CBEF Windsor, without any prior consultation or impact analysis. The Commissioner is therefore seeking an order requiring the Corporation to review its decision concerning CBEF Windsor and to make the necessary arrangements to compensate for the negative impact of this decision on the OLMC of southwestern Ontario. [ 41 ] The joint applicant, Dr.

Amellal, supports the Commissioner’s request and, as additional relief, is seeking a permanent injunction forcing the Corporation to return to the previous number of local and regional production hours, if it does not return to broadcasting the programs previously aired by CBEF Windsor which were cancelled. [ 42 ] The Federal Court must now rule on the jurisdictional issue raised as a preliminary ground by the Corporation. exclusive jurisdiction or Concurrent Jurisdiction [ 43 ] Thus far, the provincial courts of original general jurisdiction have refused to issue injunctions or make declarations of right in

respect of broadcasting undertakings in cases where the CRTC clearly has jurisdiction to resolve the dispute and where the rights claimedor the violations alleged solely concern the

interpretation or application of provisions of the BA or of the regulations made under it(Trieger v. Canadian Broadcasting Corp. (1988), (ON SC), 66 O.R. (2d) 273 (H.C.J.), at pages 277–278; Mahar v.Rogers Cablesystems Ltd., , 25 O.R. (3d) 690 (Sup. Ct.), at paragraphs 17, 21, 22, 25, 33 and 34). [44] Similarly, in Canadian Union of Public Employees v.

Canadian Broadcasting Corp., (FC), [1991] 2 F.C. 455(T.D.), the Federal Court ruled that it did not have jurisdiction under sections 18 and 23 [as am. idem, s. 32] of the FCA to grantprerogative and injunctive relief directing the Corporation to comply with its mandate—referring here to its mandate under theBroadcasting Act, R.S.C., 1985, c. B-9 (the former BA)—and to adhere to and respect the requirements established by the CRTC. First,it was acknowledged that the Corporation is not a “federal board, commission or other tribunal” within the meaning of subsection 2(1)[as am. idem, s. 15] of the FCA, meaning that

section 18 of the FCA cannot apply. In addition, since this was a matter where jurisdictionhad been “otherwise specially assigned” under the BA,

section 23 of the FCA also cannot not apply. [45] The “exclusive jurisdiction” model suggested by the decisions above thus pertains to the exercise of injunctive power in civilmatters or the supervisory power of the superior courts, including the Federal Court. However, another model, one of “concurrentjurisdiction”, has evolved in parallel in cases where there has been an assignment of separate jurisdiction by a statute other than the BAto an administrative tribunal, or even to the Federal Court. [46] Thus, in Vlug v.

Canadian Broadcasting Corp., , the Canadian Human Rights Tribunal (C.H.R.T.) ruled thatthe Canadian Human Rights Act, R.S.C., 1985, c. H-6 (CHRA) required that the Corporation make all of its Newsworld television andEnglish-language network programming accessible to the deaf and hard of hearing, as soon as practicable, despite the fact that subtitlingis subject to the CRTC’s expectations or conditions of licence (which, instead, set targets to be met). [47] In Canadian Broadcasting Corporation v.

Canada (Information Commissioner), 2011 FCA 326, 344 D.L.R. (4th) 341 (CBC v.ICC), the Court had to interpret the scope of

section 68.1 [as enacted by S.C. 2006, c. 9, s. 159] of the Access to Information Act, R.S.C.,1985, c. A-1 (AIA). This provision excludes “any information that is under the control of the Canadian Broadcasting Corporation thatrelates to its journalistic, creative or programming activities, other than information that relates to its general administration” (emphasisadded). Arguing that the courts have recognized the CBC’s journalistic independence from any government interference and that thewords, “journalistic, creative or programming” come from the BA [at

section 52], which enshrines its independence, the Corporationobjected to any prior examination by the Information Commissioner. [48] Although the BA applies to the Corporation’s programming activities, the Federal Court of Appeal did not exclude the possibilitythat the AIA applies concurrently, while confirming the Information Commissioner’s power of examination [at paragraph 70 of CBC v.ICC]: Although Parliament intended that information related to journalistic, creative or programming activities be excluded from theapplication of the Act, it also wanted that information related to the CBC’s general administration – as defined in

section 3.1 – not beexcluded. Subject to what is said in paragraphs 73 and 74, below, it is the Commissioner’s role to initially determine whether theexception applies and to exercise the recommendation power vested in her by the Act. [49] Last, in Quigley v. Canada (House of Commons), 2002 FCT 645, [2003] 1 F.C. 132, decided under

Part X of the OLA, theapplicant was a Rogers Cable subscriber in New Brunswick who had complained to the Commissioner that the Cable Public AffairsChannel (CPAC) broadcast the House of Commons debates in their original version only. As the applicant only spoke English, he wasunable to understand those parts that are spoken in French. It should be noted that, under

section 25 of the OLA, every federal institutionhas the duty to ensure that, where services are provided or made available by another person or organization on its behalf, any member ofthe public in Canada or elsewhere obtain those services from that person or organization in both languages in any case where theinstitution would itself be required to provide them in both languages.

The Federal Court declared that the method used by the House ofCommons and its Board of Internal Economy for providing public television broadcasts of parliamentary proceedings contravenedsection 25 of the OLA, and ordered that they take the necessary steps to bring their practices into compliance with this provision. [50] Given the case law discussed above, the Court must refrain from swiftly and mechanically applying the CRTC’s exclusivejurisdiction model simply because the Corporation’s programming was affected by the 2009 budget cuts. See also: Norton v.

VIA RailCanada, 2009 FC 704 (Norton), at paragraph 55; Québec (Commission des droits de la personne et des droits de la jeunesse) v. Québec(Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185, at paragraph 11. [51] Therefore, having considered all of the parties’ submissions in light of the applicable law and the evidence on record, I am of theopinion that there is no conflict between the OLA and the BA and that the court to which

Part X applies, that is, the Federal Court(section 76 [as am. by S.C. 2002, c. 8, s. 183] of the OLA), has prima facie jurisdiction to determine the scope of subsection 41(2) of theOLA and to decide whether there was a failure to comply with the duty to take positive measures. Need we be reminded, the OLAreflects a social and political compromise; it gives the Commissioner the powers of a true linguistic ombudsman and creates a judicialprocess that provides for relief in the cases set out at subsection 77(1) of the OLA: Canada (Attorney General) v. Viola, (FCA), [1991] 1 F.C. 373 (C.A.), at page 386; R. v.

Beaulac, (SCC), [1999] 1 S.C.R. 768, at pages 790 to 792;Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), 2004 FCA 263, [2004] 4 F.C.R. 276, atparagraphs 16 and 17; and DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194, at paragraphs 32–35. [52] That said, although the Federal Court has jurisdiction, strictly speaking, under

section 77 of the OLA according to the concurrentjurisdiction model, I am of the opinion that it is preferable for the CRTC to first decide the issue of the decrease in regional or localprogramming broadcast by CBEF Windsor before I determine whether it is appropriate to either dismiss this application or furtherexamine the issues raised on the merits. NATURE OF THE DISPUTE AND PARLIAMENT’S INTENT [53] To decide which of the concurrent legal schemes should govern the dispute, the Court must first analyse the nature of the disputeto determine its essential character, since the key question is whether, in its factual context, the essential character of a dispute arises

either expressly or inferentially from a legal scheme. Second, the Court must also determine whether Parliament intended for the disputeto be governed by the BA or by the OLA, depending on what is indicated in the relevant legal provisions: St. Anne Nackawic Pulp &Paper Co. v. Canadian Paper Workers Union, Local 219, (SCC), [1986] 1 S.C.R. 704; Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000]1 S.C.R. 360; Bisaillon v.

Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666. [54] Whatever opinion the Commissioner has today, there would not have been 876 complaints from Francophones in southwesternOntario if the Corporation had not decreased the regional and/or local content in CBEF Windsor’s radio programming. In that sense,from the complainants’ perspective, what is at issue is indeed the effect of the cutbacks on the programming broadcast by CBEFWindsor, not the matter of whether the Corporation did or did not hold consultations before making its decision.

The complainants arenot claiming a right of consultation, although such a right could be granted to them as a remedy in the event of noncompliance with theOLA. What they want, first and foremost, is for CBEF Windsor’s programming to strengthen Francophones’ ties to the OLMC ofsouthwestern Ontario. This cannot be achieved otherwise than by raising the CRTC’s current expectations in terms of local and regionalprogramming. [55] Whereas the OLA constitutes a comprehensive code on linguistic rights (Norton, above, at paragraph 61), the BA also constitutesa comprehensive code—on broadcasting.

The BA applies to “broadcasting undertakings”, which include distribution undertakings andprogramming undertakings, including networks (subsections 2(1) and 4(3) of the BA). The word “programming” extends to more thanthe mere words which go out over the air but the total process of gathering, assembling and putting out the programs generally (CKOYLtd. v.

Her Majesty The Queen on the relation of Lorne Mahoney, (SCC), [1979] 1 S.C.R. 2, at page 13). [56] Full effect must be given to Parliament’s intent that the specific procedure in accordance with which the national publicbroadcaster provides its program offering, over the full network and in the regions, be substantively established by the CRTC as part ofthe public process to issue and renew the Corporation’s licences.

It goes without saying that the expectations and conditions of licenceset by the CRTC must be consistent with all of the applicable provisions of the BA and the OLA, which includes ensuring adherence tothe values and spirit of the BA and the OLA in promoting the equal status of both official languages and supporting the development ofOLMCs. [57] Parliament adopted and, over time, has amended the broadcasting policy for Canada set out at subsection 3(1) of the BA.

Theelements of this policy have been chosen by Parliament with great care, following profound consideration and extensive consultation andthen a public debate, both as regards the former 1968 statute (S.C. 1967-68, c. 25) and the new 1991 statute. Today, the policy contains aset of political, social, economic and cultural objectives that reflect the linguistic duality and the multicultural and multiracial nature ofCanadian society. [58] There is no conflict between the purposes of the OLA and those of the BA.

In both statutes, the general will of Parliament is tofoster the development and enhance the vitality of OLMCs, while leaving the choice of means in the hands of the federal institutionsconcerned and the broadcasters, including the national public broadcaster. The same may be said of the legal principles for theapplication of both statutes.

As regards the OLA, the federal government’s general commitment to enhancing linguistic duality is met byall of the federal institutions in their respective fields of activity, whereas as regards the BA, the general purposes of the broadcastingpolicy for Canada are implemented by all broadcasters, taking into account their individual characteristics and the complementarity ofthe programs offered by the broadcasting system as a whole. [59] It would also be incorrect to think that the BA does nothing more than express wishful thinking by Parliament.

It does, in fact, setout a functional legal groundwork and Parliament’s statement of certain guiding legal principles that may be interpreted or evencompleted by the CRTC. For example, the equal status of both official languages is not merely “formal”. Parliament also seeks tocounteract all regional inequalities within the system and to do so in accordance with the specific interests of both official languagecommunities. In this respect, it is not a matter of requiring the national public broadcaster to provide a single programming servicebroadcast simultaneously in both official languages.

On the contrary, reference is made to two separate services, “reflecting the differentneeds and circumstances of each official language community, including the particular needs and circumstances of English and Frenchlinguistic minorities” (emphasis added) (subparagraph 3(1)(m)(iv) of the BA, while the Corporation’s programming should also “striveto be of equivalent quality in English and in French” (emphasis added) (subparagraph 3(1)(m)(

v) of the BA). [60] The documentary evidence on record confirms that the statement of the broadcasting policy for Canada is in continuousevolution and does indeed take into account the equal status of the official languages and the importance of fostering the development ofOLMCs set out in both the former 1969 Official Languages Act (R.S.C. 1970, c. O-2) and the new 1990 statute.

Having read all of theextensive documentation reproduced in the joint book of supplementary documents, it appears to me that Parliament’s wish, withoutlimiting the Commissioner’s power in relation to carrying out investigations, is for the Commissioner to make public any complaintmade by citizens or groups of citizens, including OLMC members, whether the complaint pertains to the Corporation’s relations andcommunications with the public, at its headquarters and in the regions, or to the very contents of its national and regional programming. [61] However, the Corporation’s mandate and mission in terms of the programming offered and the distribution of its services inCanada are subject to a statutory framework set out, first, by

section 3 of the BA, which addresses the broadcasting policy for Canadaand the role of the national broadcaster (paragraphs 3(1)(

l) and (m)) and, second, by sections 35 to 71 [Part III] of the BA, which relatedirectly to the Corporation’s operational methods and accountability. In fact, the national public broadcaster is not an instrumentpromoting the government and its ministers, but one promoting the broadcasting policy for Canada. That same policy was the will ofParliament, which entrusted the CRTC with supervising the system. [62] Let me be clear: the government cannot interfere with the Corporation’s programming choices (subsections 4(1), 35(2), 46(5) and52(2) of the BA).

However, freedom of expression and journalistic independence do not constitute a general licence allowing theCorporation to avoid implementing the linguistic aspects of the broadcasting policy for Canada, to ignore the regions and the OLMCsand to decrease the contribution of artists and other local talents in its national and regional programming. As well, the Corporation’sprogramming for the people of Canada must include a certain proportion of regionally produced programs, with which listeners andtelevision viewers will be able to identify.

This is especially true in the case of OLMCs, which are threatened by assimilation and count

on public radio and public television to preserve their language and cultural identity. [ 63 ] Conversely, the national public broadcaster is ultimately responsible before Parliament, through the Minister, for the exercise of its activities (

section 40 of the BA ). In passing, the Minister is also the one who, in consultation with the other federal ministers, fosters and encourages coordination of the federal institutions’ implementation of the commitment set out at subsection 41(1) of the OLA (

section 42 [as am. by S.C. 1995, c. 11 , s. 27] of the OLA). In addition, Canadian Heritage ensures that the Canadian broadcasting and digital communications sectors participate in achieving Canada’s social, cultural and economic objectives as set out in the BA and promotes the creation and broadcasting of Canadian content through numerous forms of media. [ 64 ] Since the broadcasting policy for Canada has not been repealed or amended by Parliament, the federal government must comply with it in full, not only in letter but also in spirit.

The onus is on the government, the Minister and any other responsible minister to ensure that the Corporation receives adequate public funding on an annual basis and has the financial capacity to provide Canadians with programming that is consistent with the values, objectives and legitimate expectations under the BA , which itself mirrors some key aspects of the OLA . [ 65 ] In particular, the will of Parliament is for a range of broadcasting services in French and English to be extended to all Canadians as resources become available ( paragraph 3(1) (

k) of the BA ). As regards the Corporation’s programming, the public broadcaster’s mandate expressly includes promoting both official languages, preserving the identity of French-speaking and English-speaking minorities within the Canadian federation and contributing to shared national consciousness and identity (subparagraphs 3(1)( m )(iv), (

v) and (vi) of the BA). That is the law, and everyone must obey it, including Her Majesty in right of Canada or a province ( subsection 4(1) of the BA). [ 66 ] On this level, it is interesting to note that the BA is more restrictive than the OLA in terms of the accessibility of program services provided by the national broadcaster.

In the OLA, the availability of services in either official language is contingent on the type of office (i.e. head or central office) or the criterion of a “significant demand” outside the National Capital Region, but the BA instead uses the criterion of “resources … available” ( subparagraph 3(1) ( m )(vii) of the BA). As it is, the Corporation must have regard to the principles and purposes of the OLA when planning to extend broadcasting services ( subsection 46(4) of the BA).

Parliament could not have been clearer. [ 67 ] The duty to take “positive measures” set out at subsection 41(2) of the OLA must be interpreted and applied in light of the programming undertakings already assumed by the Corporation under the BA or which the CRTC may require in the form of expectations and conditions of licence. It is difficult to see how the Commissioner or the Federal Court can, for example, require that the Corporation offer radio programming in a given region simply because an OLMC is located there.

In fact, to do so, the Corporation must hold a licence from the CRTC, presuming that a frequency is available and it has been allocated to the Corporation. Furthermore, the antenna and facilities of the affiliated station broadcasting the signal must have received Industry Canada’s approval in accordance with the Radiocommunication Act , R.S.C., 1985, c. R-2, and its regulations. [ 68 ] The CRTC has vast powers under sections 9 [as am. by S.C. 1994, c. 26, s. 10(F)] to 13 of the BA and, under

section 17 of the BA , “has authority to determine questions of fact or law in relation to any matter within its jurisdiction under this Act.” In Genex Communications v. Canada (Attorney General) , 2005 FCA 283 , [2006] 2 F.C.R. 199, at paragraphs 72 and 73 , the Federal Court of Appeal noted the following about the scope of its powers: This independent authority, the CRTC, was required by

section 15 to regulate and supervise all aspects of the Canadian broadcasting system.

Thus, in the performance of its duty of supervision and regulation, it was given exclusive power by Parliament to issue licences, to make regulations respecting standards of programs and advertising, to define the classes of persons who could be allowed to hold broadcasting licences and to prescribe the conditions for the operation of broadcasting stations as part of a network and the conditions for the broadcasting of network programs … The broadcasting policy enunciated by the Act was also addressed to a number of issues of public interest including the language of broadcasting, the need for a national public broadcasting service, diversity and quality of programming, and recognition and supervision of broadcasting undertakings, to mention only a few of these issues. [ 69 ] In the past, the CRTC has shown that it was prepared to make any order necessary to promoting either official language and fostering the development of an OLMC.

This is what the CRTC did, for example, when in 1999 it forced broadcasting distribution undertakings (BDUs) to distribute the French-language television service of Groupe TVA Inc. (TVA) across the country, thus responding to “a long-standing desire on the part of French-speaking communities outside Quebec” and being, in addition, persuaded that “national distribution of this television service will contribute to promoting Canada’s linguistic duality and cultural diversity” (Public Notice CRTC 1999-27, Order respecting the distribution of the French-language television service of TVA Group Inc., February 12, 1999). [ 70 ] Therefore, far from wishing to minimize the Commissioner’s role as ombudsman—since he must continue to receive complaints and conduct any investigations he deems useful under the OLA—I am nonetheless of the opinion that the general jurisdiction of the court identified under

Part X of the OLA , the Federal Court, to grant a “remedy” in the event of noncompliance with the OLA is necessarily only concurrent with the CRTC’s specialized jurisdiction in broadcasting matters under

Part II [sections 5 to 34] of the BA .

APPROPRIATENESS OF THE CURRENT REGULATORY FRAMEWORK [ 71 ] A great deal of effort has been expended by both parties to satisfy me, as Trial Judge, to continue the hearing on the merits of this application for a remedy, or to dismiss it summarily, on the ground that the Federal Court could grant an appropriate remedy, or else could not do so, assuming that the facts alleged by the applicants are proven. [ 72 ] At this stage, as made clear in the paragraphs that follow, I am of the opinion that the complaints made to the Commissioner may appropriately be decided on the merits by another authority: in this case, the CRTC.

It must be remembered that, according to subsection 77(5) of the OLA , “[n]othing in this

section abrogates or derogates from any right of action a person might have other than the

right of action set out in this section” (emphasis added). It is clear that the applicants have not waived their right to intervene before theCRTC. [73] Moreover, in the intervention he filed on July 8, 2011, Dr. Amellal asked the CRTC [translation] “to re-establish the programsproduced locally at CBEF 540, in accordance with the programming that was current under Decision CRTC 2001-529”, alleging thefollowing in that regard: [translation] The CBC’s decisions and its plan for the future of CBEF are contributing to Francophone assimilation in southwestern Ontario.

TheCBC has taken no steps to implement its commitment towards the Francophone minority of southwestern Ontario to enhance its vitalityand support its development. The CBC failed to consult the community of southwestern Ontario before making major cuts to the CBEF 540 station and neglected toassess the negative impact that those cuts could have on the community. Those failings were detrimental to the vitality of our minoritycommunity.

The CBC is failing to comply with the Broadcasting Act, is failing to comply with the current licence issued by the CRTC and has madecrushing decisions for the official language minority population.

We believe that, as an institution that regulates and supervises compliance with the Broadcasting Act and claims to take the reality ofofficial language minority communities into account, the CRTC must intervene in this situation. [74] In my opinion, the process of renewing the Corporation’s licences is the forum favoured by Parliament for discussions to be heldon the decrease in local or regional French-language programming. For the time being, I must assume that the CRTC will give particularattention to the applicants’ criticisms of the Corporation.

This is part of its mandate as regulator of the broadcasting system. [75] By nature, radio is more regulated than television and still largely broadcast by radio waves.

In fact, these frequencies are apublic good whose allocation to a broadcaster presupposes a public review process, upon completion of which the CRTC issues anoperating licence to the licence holder that will best be able to serve the people, taking into account the policies in effect, the publicinterest and government guidelines. [76] Subject to directions from the Governor in Council—particularly as regards the reservation of channels or frequencies for the useof the Corporation or for any special purpose (subsection 26(1) of the BA)—the allocation of frequencies is a competitive process, suchthat the Corporation may even propose new networks (Métromédia CMR Montréal Inc, decision CRTC 99-151, June 21, 1999; SociétéRadio-Canada v.

Métromédia Cmr Montréal Inc., , 254 N.R. 266 (F.C.A.)). [77] Since 1970, the Corporation has been operating an AM radio programming undertaking in the region of southwestern Ontario onthe frequency 540 KHz (AM), known by the name CBEF Windsor.

Using its rebroadcaster at Leamington, CBEF-1 FM, the Corporationbroadcasts the same programming at 103.1 MHz (FM), which ensures improved broadcasting of la Première Chaîne in this part of thecountry, which is served almost exclusively by English-language networks on both sides of the border. [78] However, since CBEF is the only French-language station in the Windsor region, and a great many Francophones in the areaunderstand English, the lack of a French-language FM station encouraged them to tune into English-language stations instead.

As aresult, in 2008, the CRTC also allowed the Corporation to operate an overlapping rebroadcasting FM transmitter at Windsor, operating at102.3 MHz and covering about the same area as CBEF Windsor. [79] Let us leave aside, for the moment, the fact that la Première Chaîne’s network programming, produced primarily in Montréal, isbroadcast throughout the country. One thing is clear: all of the stakeholders agree that, in order for the public broadcaster to fulfill itsmandate, it is not enough for it to broadcast nationwide in French. First, its programming must be mainly Canadian.

Second, thatprogramming must also reflect the regions and the people who live there, if not be produced locally or regionally. [80] Furthermore, in its application for licence renewal for CBEF Windsor in 1993, the Corporation itself acknowledged that[translation] “French radio must remain regional radio”, and that [translation] “in many parts of the country, only the CBC is able tomake regional programming available in French”.

Stating next that [translation] “it is therefore through regional programming thatFrench radio will secure the loyalty of listeners, whom it will then be able to provide with a choice of programs that are clearlydistinctive in terms of their content and crafting”, the Corporation claimed it was [translation] “persuaded that it inhabits a unique nichein the radio landscape of Windsor and the surrounding area”. [81] In Decision CRTC 2001-529 [Canadian Broadcasting Corporation], the CRTC clearly stated that the Corporation has a duty tofulfill its responsibility to broadcast local and regional programming on each of its affiliated stations [at paragraph 3]: In March 1999, the Commission held a series of public consultations.

During these consultations, a number of representatives ofFrancophones from areas other than Quebec complained about the lack of coverage of their communities in the programs broadcast bythe CBC. As the Commission noted when it last renewed the CBC’s network licences in January 2000, “given Canada’s cultural andsocial diversity and the needs and interests of Anglophone as well as Francophone audiences, the CBC should emphasize programmingthat reflects all the communities of this country. This obligation is at the very heart of the CBC’s mandate.

If Canada’s many voices andfaces are to be represented on the public broadcasting service, the CBC must have a stronger presence in all parts of the country and mustbe committed to regional talent.” The Commission reaffirms the particular importance it attaches to the CBC’s responsibilities to provideregional programming on its individual stations. Accordingly, the Commission expects the CBC to maintain the levels of regional andsubregional programming currently broadcast on each of these stations.

The Commission also strongly encourages the licensee to surpassthese levels during the new licence term. [Emphasis added.] [82] From a regulatory standpoint, a distinction should be made between “regional” programs, which may be produced outside an

affiliated station (but within the same province) and so-called “local” (sub-regional) programs, produced at the affiliated station itself.

Therefore, in 2001, when the Corporation’s licences were most recently renewed, the CRTC stated that it expected the Corporation to maintain the current levels of regional and local (sub-regional) programming at its affiliated stations, while strongly encouraging it to surpass those levels during the new licence term—referring then to the period from September 1, 2001 to August 31, 2007. [ 83 ] However, the cutbacks over the last years have had a substantial impact on the hours of programming produced by CBEF Windsor, to such an extent that one may well ask whether it still fulfills its role as a local French-language information station on the AM band (simultaneously rebroadcast on the FM band) in Windsor’s radio landscape.

In June 2010, the Commissioner made the following observation at page 22 of his final investigation report: [ translation ] The near-total loss of local radio content spells the effective loss of the radio station that was considered part of the infrastructures providing institutional support to the official language minority community of southwestern Ontario. Its disappearance is detrimental to the minority community’s vitality and development.

Owing to the Francophone population’s lack of interest in the new format and the loss of the only tool in which the community saw itself reflected each day, the Francophone community is now turning to English-language radio, which will most likely be detrimental to its identity. [ 84 ] And yet, in brighter days—meaning the state of affairs before 1996—CBEF Windsor had some 25 regular employees, 15 of whom were assigned to programming and 7 of whom worked on news and information.

That said, following the 2009 budget cuts, it seems that the affiliated station in Toronto, CJBC, benefited from an increase in local and/or regional production, to the detriment of CBEF Windsor. In fact, in 2001, CJBC broadcast approximately 27.5 hours a week of programs produced in Toronto, whereas, during the 2010-2011 period, programs produced in Toronto reached 32 hours a week. [ 85 ] Ten years have passed since the Corporation’s licences were last renewed.

It is therefore high time that the Corporation provide Canadians with an explanation of its programming choices and of its vision for the future in a setting where the interested parties will have the opportunity to be heard. In this case, I believe that the best forum is indeed the CRTC, which acts as regulator and lawmaker (by delegation) in the area of broadcasting.

In all likelihood, the stakeholders and other interested parties will make submissions to the CRTC insisting that the Corporation now be required, by conditions of licence, to meet a minimum threshold for local and/or regional programs that are regionally broadcast and produced. Presumably, if the Corporation fails to compromise, it is to be expected that the battle before the CRTC for a return to the previous level of local programming in Windsor will be very bitter.

One might even have to call it a “fight to the finish” between the Corporation, the Commissioner and the Francophone population of southwestern Ontario, which is not desirable in a context where the “public interest” must come first. [ 86 ] To go by the documentation currently in the public record, the Corporation’s plan for the next licence term is for 20 hours and up of the weekly broadcast to be locally produced at “main” stations and, by contrast, for 5 to 20 hours of the weekly broadcast to be locally produced at “remote” stations

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