Alliance nationale de l’industrie musicale v. Canadian Radio-television and Telecommunications Commission

Alliance nationale de l’industrie musicale v. Canadian Radio-television and Telecommunications Commission
Court (s) Database
Federal Court Decisions
Date
2021-09-14
Neutral citation
2021 FC 942
File numbers
T-1480-19
Decision Content
Date: 20210914
Docket: T-1480-19
Citation: 2021 FC 942
[ENGLISH TRANSLATION]
Ottawa, Ontario, September 14, 2021
PRESENT: The Honourable Mr. Justice McHaffie
BETWEEN:
ALLIANCE NATIONALE DE L’INDUSTRIE MUSICALE
Applicant
and
CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION
Respondent
ORDER AND REASONS
I. Overview
[1] The Canadian Radio-television and Telecommunications Commission (CRTC) is seeking to have struck three aspects of the Notice of Application filed by the Alliance nationale de l’industrie musicale (ANIM). In the Notice of Application, ANIM alleges that the CRTC did not respect its language obligations under the Official Languages Act, RSC 1985, c 31 (4th Suppl) [OLA], and the Canadian Charter of Rights and Freedoms, and is seeking several orders as a remedy. In this motion, the CRTC is seeking to have struck (i) ANIM’s claim for damages, (ii) the request for an order requiring the CRTC to impose conditions of licence in future, and (iii) several paragraphs of the grounds presented by ANIM in its Notice of Application. The CRTC motion raises the interaction between the remedial provisions of the OLA and the Charter on one hand, and the immunity of administrative tribunals and the jurisdiction of this court pursuant to the Federal Courts Act, RSC 1985, c F-7 [FC Act], on the other.
[2] I find that ANIM’s claim for damages must be struck. The Supreme Court of Canada decision in Ernst v Alberta Energy Regulator, 2017 SCC 1, establishes that it is plain and obvious that such a remedy, whether under the Charter or the OLA, would not be “appropriate and just” considering the CRTC’s immunity with respect to its adjudicative function.
[3] I also find that ANIM’s request for an order requiring the CRTC to impose conditions of licence must be struck, to the extent that it is based on the Charter. It is plain and obvious that such an order targeting the CRTC could only be issued by the Federal Court of Appeal under sections 18, 18.1 and 28 of the FC Act. As a result, this Court is not a “court of competent jurisdiction” for the purposes of subsection 24(1) of the Charter in regard to this order. However, the same request based on the alleged breach of obligations under the OLA is not struck. In light of the legislative provisions and the case law, it is not plain and obvious that the powers conferred on this Court by section 77 of the OLA are limited or precluded by the provisions in the FC Act.
[4] Lastly, I dismiss the CRTC’s ancillary request to strike certain paragraphs of the grounds raised by ANIM in the Notice of Application. These paragraphs contain allegations of fact that are relevant to the alleged breach of the OLA, even if certain aspects of the application are struck.
[5] The CRTC’s motion is therefore allowed in part. I will leave the question of costs to the Court that will rule on the merits of ANIM’s application.
II. Issues and analysis framework
[6] I will address the issues raised in the CRTC motion in the following order:
Should ANIM’s claim for damages under subsection 77(4) of the OLA and subsection 24(1) of the Charter be struck from the Notice of Application?
Should ANIM’s request for an order under subsection 77(4) of the OLA and subsection 24(1) of the Charter requiring the CRTC to impose conditions of licence in future be struck from the Notice of Application?
Should paragraphs 36 to 58 of the Notice of Application be struck?
Should costs be awarded to ANIM, regardless of the outcome?
[7] The parties generally agree on the analytical framework applicable in a motion to strike. Even though this application is not an application for judicial review, the parties agree that the principles that apply are those stated in Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250 at paras 47–53, and David Bull Laboratories (Canada) Inc v Pharmacia Inc, [1995] 1 FC 588 (CA) at 596–600. Briefly, these are the principles:
(a) Generally speaking, the direct and proper way to contest a notice of motion is to appear and argue at the hearing of the motion: David Bull at 596–97.
(b) Nonetheless, the Court has the power, under its plenary jurisdiction to restrain the misuse or abuse of courts’ processes, to strike a notice of application in whole or in part: David Bull at 600; JP Morgan at para 48; Fono v Canada Mortgage and Housing Corporation, 2019 FC 1190 at paras 17–18, 37, 48, aff’d 2021 FCA 125.
(c) This power must only be exercised in exceptional cases where the notice is “so clearly improper as to be bereft of any possibility of success” meaning that it is “plain and obvious” that the application cannot succeed: David Bull at 600; JP Morgan at para 47; Ernst at paras 15, 68–69.
(d) These exceptional cases can include applications that have an “obvious, fatal flaw” striking at the root of the jurisdiction of the Court to hear the case: JP Morgan at para 47; Chrysler Canada Inc v Canada, 2008 FC 727 at para 20, aff’d 2008 FC 1049.
(e) For the purposes of the motion to strike, the allegations in the Notice of Application must be accepted as true: Chrysler at para 20; JP Morgan at para 52.
III. Analysis
A. The claim for damages
(1) Background: the claim for damages and its basis
[8] In its Notice of Application, ANIM is seeking an order:
[translation]
ORDERING THAT the CRTC pay damages to ANIM, the quantum of which shall be determined prior to the hearing, for the funding of its members’ initiatives that are eligible for Canadian Content Development (“CCD”) funding pursuant to the Radio Regulations, 1986, SOR/86-982 (“Radio Regulations”), as an appropriate and just remedy, under subsection 77(4) of the OLA and subsection 24(1) of the Charter, for the harm caused to ANIM members by [the CRTC’s] breaches of the OLA and the Charter[.]
[9] The ANIM application springs from the 2012 CRTC renewal of the satellite subscription radio licence for Sirius XM Canada Inc: Broadcasting Decision CRTC 2012-629. In the renewed licence, the CRTC imposed as conditions that Sirius XM make certain contributions to Canadian Content Development (CCD) initiatives. In particular, the CRTC required Sirius XM to contribute at least 4% of its gross income to CCD initiatives, allocating its contribution in the following manner: (a) no less than 20% of the total to the Foundation Assisting Canadian Talent on Recordings (FACTOR); (b) no less than 10% of the total to the Fondation Musicaction (MUSICACTION); (c) no less than 5% to the Community Radio Fund of Canada (CRFC); and (d) of the remainder (the “discretionary contribution”), no less than 45% to Canadian French-language content initiatives and 45% to Canadian English-language content initiatives: Appendix to Broadcasting Decision CRTC 2012-629, “Conditions of licence” at paras 13(b), (d).
[10] FACTOR supports Anglophone initiatives while MUSICACTION supports Francophone initiatives. MUSICACTION makes significant contributions to initiatives in Francophone and Acadian minority communities (FMCs). ANIM represents the Francophone and Acadian musical industry in communities outside Quebec, and ANIM members represent all FMC artists and professionals in the song and music sector.
[11] The allocation of contributions between FACTOR and MUSICACTION in Broadcasting Decision CRTC 2012-629 modified the previous distribution, where FACTOR and MUSICACTION received an equal minimum allocation. ANIM alleges that this change caused a significant negative impact on the funding of Francophone initiatives for CCD, especially since Sirius XM is the main audio entertainment company in the country. It claims that the CRTC did not provide FMCs with sufficient notice of this change and did not keep them informed about a process that concerns them. ANIM alleges that this is a violation of the CRTC’s obligations under sections 16 and 20 of the Charter and parts IV (particularly sections 21, 22, 27, 28 and 30) and VII (particularly section 41) of the OLA.
[12] In 2013, ANIM filed a complaint with the Commissioner of Official Languages (COL) under section 58 of the OLA. Such a complaint is required for a remedy before this Court under sections 76 and 77 of the OLA. These sections are in Part X of the OLA, “Court Remedy”, and state the following:
Definition of Court
Définition de tribunal
76 In this Part, Court means the Federal Court.
76 Le tribunal visé à la présente partie est la Cour fédérale.
Application for remedy
Recours
77 (1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or Part IV, V or VII, or in respect of section 91, may apply to the Court for a remedy under this Part.
77 (1) Quiconque a saisi le commissaire d’une plainte visant une obligation ou un droit prévus aux articles 4 à 7 et 10 à 13 ou aux parties IV, V, ou VII, ou fondée sur l’article 91, peut former un recours devant le tribunal sous le régime de la présente partie.
Limitation period
Délai
(2) An application may be made under subsection (1) within sixty days after
(a) the results of an investigation of the complaint by the Commissioner are reported to the complainant under subsection 64(1),
(b) the complainant is informed of the recommendations of the Commissioner under subsection 64(2), or
(c) the complainant is informed of the Commissioner’s decision to refuse or cease to investigate the complaint under subsection 58(5),
or within such further time as the Court may, either before or after the expiration of those sixty days, fix or allow.
(2) Sauf délai supérieur accordé par le tribunal sur demande présentée ou non avant l’expiration du délai normal, le recours est formé dans les soixante jours qui suivent la communication au plaignant des conclusions de l’enquête, des recommandations visées au paragraphe 64(2) ou de l’avis de refus d’ouverture ou de poursuite d’une enquête donné au titre du paragraphe 58(5).
[Emphasis added.]
[Je souligne.]
[13] The COL released his final report in July 2019, six years after the complaint had been filed and one year after the licence awarded in Broadcasting Decision CRTC 2012-629 had expired. The Court does not have the COL report in the motion records but according to the CRTC, the COL concluded that the ANIM complaint was not founded. ANIM filed its Notice of Application on September 9, 2019, within sixty days after the COL’s findings were reported to ANIM.
[14] Because this is a motion to strike, the Court must accept the allegations of fact as they appear in ANIM’s Notice of Application as true. Therefore, for the purposes of this motion, I accept that the change in the way in which contributions were allocated in Broadcasting Decision 2012-629 caused financial harm to FMCs. Moreover, the CRTC is not disputing that the question of whether it breached its obligations under the OLA or the Charter must be resolved in the determination of the merits of the application. Therefore, for the purposes of this motion, I accept that ANIM may establish that the CRTC breached its language obligations. The only issue raised in this motion is that of the remedy.
[15] As a remedy for the alleged breach, ANIM is seeking damages under subsection 24(1) of the Charter and subsection 77(4) of the OLA. It argues that the scope of these two remedial provisions is wide enough to include an order for damages against the CRTC. Let’s look at these provisions therefore.
(2) Subsection 24(1) of the Charter and subsection 77(4) of the OLA
[16] Subsection 24(1) of the Charter and subsection 77(4) of the OLA use similar language:
Canadian Charter of Rights and Freedoms
Charte canadienne des droits et libertés
Enforcement of guaranteed rights and freedoms
Recours en cas d’atteinte aux droits et libertés
24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
24 (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s’adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances.
Official Languages Act
Loi sur les langues officielles
Order of Court
Ordonnance
77 (4) Where, in proceedings under subsection (1), the Court concludes that a federal institution has failed to comply with this Act, the Court may grant such remedy as it considers appropriate and just in the circumstances.
77 (4) Le tribunal peut, s’il estime qu’une institution fédérale ne s’est pas conformée à la présente loi, accorder la réparation qu’il estime convenable et juste eu égard aux circonstances.
[Emphasis added.]
[Je souligne.]
[17] Given their identical scope, “the principles of interpretation applying to subsection 24(1) of the Charter may be usefully followed with regard to the scope of the Court’s power to grant a remedy under subsection 77(4) of the OLA”: Thibodeau v Air Canada, 2011 FC 876 at para 36, var’d 2012 FCA 246, aff’d 2014 SCC 67; Canadian Food Inspection Agency v Forum des maires de la péninsule acadienne, 2004 FCA 263 at para 56. The Supreme Court confirmed that “[l]ike s. 24(1) of the Charter, s. 77(4) of the OLA confers a wide remedial authority and should be interpreted generously to achieve its purpose” [emphasis added]: Thibodeau (SCC) at para 112. As noted by Justice McIntyre in Mills in a discussion of subsection 24(1) of the Charter, “[i]t is difficult to imagine language which could give the court a wider and less fettered discretion”: Mills v The Queen, [1986] 1 SCR 863 at 965; see also Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at paras 24, 50, 52.
[18] Like the Charter, the purpose of the OLA is to protect fundamental rights, and it must be interpreted with this important purpose in mind. In particular, the OLA aims to “ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions” and “support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society”: OLA, s. 2. The language rights protected by the OLA “must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada” [emphasis in original]: R v Beaulac, [1999] 1 SCR 768 at para 25.
(3) Damages as a remedy under subsection 24(1) of the Charter and subsection 77(4) of the OLA
[19] There is no doubt that the remedies available under subsection 24(1) of the Charter and/or subsection 77(4) of the OLA include an order for damages when such an order is “appropriate and just”: Vancouver (City) v Ward, 2010 SCC 27 at paras 4, 16–22; Thibodeau (SCC) at para 98; R Soublière, “Les « dents » de la Loi sur les langues officielles : le recours judiciaire sous la partie X” (2016) 47:1 Ottawa LR 251 at pp 270–271. The court’s jurisdiction to order damages under these provisions is not in question. Rather, at issue is whether it is plain and obvious that the remedy of damages against the CRTC is not “appropriate and just”.
[20] According to Ward, a court that rules on an application for damages under the Charter must perform a four-step analysis, namely: (i) establish that a Charter right has been breached; (ii) provide a functional justification of damages to show why damages are a just and appropriate remedy; (iii) give the state an opportunity to demonstrate countervailing factors that render damages inappropriate or unjust; and (iv) assess the quantum of the damages: Ward at para 4. In this case, at issue is whether the remedy of damages is potentially available when an administrative tribunal allegedly violated the Charter or the OLA or whether the application for damages is “bereft of any possibility” of being allowed as an “appropriate and just” remedy.
[21] In Thibodeau, the majority of the Supreme Court found that the power under subsection 77(4) of the OLA to award appropriate and just remedies should not be read as authorizing the courts to depart from Canada’s international obligations, in particular under the Montreal Convention, which restricts the damages that can be claimed from airlines: Thibodeau (SCC) at paras 1, 6, 59, 73, 88–90, 113–18. The CRTC claims that, similarly, subsection 77(4) cannot be interpreted as authorizing the courts to depart from the principles of immunity of administrative tribunals. The assessment of this argument requires a review of the state of the law on the immunity of tribunals.
(4) Immunity of administrative tribunals: Ernst v Alberta Energy Regulator
[22] The CRTC’s argument is that as an administrative tribunal and court of record, it has absolute immunity against claims for damages and that this immunity is not overridden by the OLA or the Charter. ANIM submits that the CRTC is not immune to damages for violations of the OLA and the Charter that are not within its quasi-judicial functions.
[23] The Supreme Court ruled on the immunity of administrative tribunals in Ernst. The case involved a claim by Ms. Ernst against the Alberta Energy Regulator (AER) for breaching her right to freedom of expression under paragraph 2(b) of the Charter. Ms. Ernst alleged that AER prevented her from communicating with AER for 16 months to punish her for having publicly criticized AER: Ernst at paras 6, 136–43. She claimed damages of $50,000, relying on subsection 24(1) of the Charter: Ernst at para 1, 144.
[24] The AER sought to strike this claim on the ground that it was protected by an immunity clause against any action or proceeding “in respect of any act or thing done purportedly in pursuance of this Act or any Act that the [AER] administers, the regulations under any of those Acts or a decision, order or direction of the [AER]”: Ernst at paras 1, 9; Energy Resources Conservation Act, RSA 2000, c E-10 [ERCA], s 43. Ms. Ernst challenged the constitutionality of this provision, but she did not give the required notice to this effect to the attorneys general of Canada and Alberta: Ernst at paras 13, 64–65.
[25] The Supreme Court, in three judgments, and split five to four, confirmed that the claim should be struck. Cromwell J., on behalf of four justices including himself, found that Charter damages would never be an appropriate remedy against the AER. Applying Ward, he found that the availability of judicial review and the importance of immunity for quasi-judicial decision makers demonstrate that damages are never an appropriate and just remedy: Ernst at paras 26–31, 50–55; Ward at paras 32–45. Cromwell J. noted that a “case-by-case” review largely undermines the purpose of conferring immunity: Ernst at paras 56–57. Because damages are never an appropriate and just remedy under subsection 24(1) of the Charter, a clause that bars such claims cannot be unconstitutional: Ernst at para 58.
[26] The minority of the Supreme Court was also represented by four justices, in a judgment written by McLachlin C.J. and Moldaver and Brown JJ.: Ernst at para 131. The minority concluded that it was not plain and obvious that damages could not be an appropriate and just remedy, that the AER could benefit from absolute immunity only with regard to its adjudicative role and that it was not plain and obvious that section 43 of the ERCA barred the claim: Ernst at paras 171–80. In particular, the minority found that it was not plain that the so-called “punitive” conduct on which the claim was based was part of the AER’s adjudicative role and that there was no reason to apply immunity in all cases: Ernst au para 172. The minority reached the same conclusion regarding statutory immunity noting that this applied only to acts done purportedly in pursuance of the ERCA: Ernst at para 179. For these reasons, the minority did not answer the question as to whether section 43 of the ERCA was unconstitutional: Ernst at paras 187–91.
[27] Only Abella J. did not rule on the issue of whether damages could be an appropriate and just remedy under subsection 24(1) of the Charter. She instead found that the ERCA immunity provision was clear and absolute and that Ms. Ernst did not properly raise its constitutionality: Ernst at paras 65–72. As for immunity in common law, Abella J. acknowledged its existence but only indicated that an analysis pursuant to Ward “likely leads to the conclusion that Charter damages are not an ‘appropriate and just’ remedy in the circumstances” [emphasis added]: Ernst at paras 115–23. She therefore reached the same conclusion as Cromwell J., but for different reasons.
[28] The result of these judgments is that four justices found that the AER benefitted from absolute (and statutory) common law immunity, meaning that damages under the Charter would never be appropriate; four justices found that the AER was not necessarily immune with regard to their non-adjudicative acts and that damages under the Charter could be appropriate depending on the case; and one justice made her finding based solely on the statutory immunity provision.
[29] However, although they differed on the scope of the immunity, eight of the justices concluded that tribunals at least have the kind of immunity that protects them from claims for damages, including Charter claims, based on the exercise of a tribunal’s adjudicative functions: Ernst at paras 50–57, 171–76; Ali v Attorney General, 2019 ONSC 807 at paras 33–34.
[30] ANIM accepts that Ernst confirms that the CRTC’s quasi-judicial obligations (meaning its adjudicative functions) are at least protected by an immunity and that the OLA does not preclude this immunity. I agree. If Charter obligations and remedial provisions don’t preclude immunity, as the majority of the justices concluded in Ernst, the OLA cannot preclude immunity either.
[31] On the issue of the scope of the immunity, ANIM argues that even Cromwell J. limited the immunity to the exercise of quasi-judicial duties, citing paragraph 47 of Ernst. However, in the next paragraph, Cromwell J. states that the jurisprudence “also cautions against attempting to segment the functions of a quasi-judicial regulatory board such as this one into adjudicative and regulatory activity for the purposes of considering whether its actions should give rise to liability” [emphasis added]: Ernst at para 48.
[32] At any rate, I agree that on the basis of Ernst, it cannot be stated that it is plain and obvious that quasi-judicial tribunals have immunity for all their acts. The decision of Cromwell J. and that of the minority each represent the opinion of four justices, and Abella J., did not answer this particular question. This creates uncertainty on the issue of whether immunity extends beyond judicial functions. However, the immunity of these tribunals against claims for damages resulting from a tribunal’s exercise of its adjudicative functions is clear based on Ernst. ANIM’s main argument is that the CRTC’s acts and omissions on which the claim is based do not fall within its adjudicative functions, but rather within its obligations under the OLA and in particular, its alleged obligations to inform FMCs about public hearings that could affect them.
[33] To clarify, the immunity at issue in Ernst is clearly not an immunity that applies to all state actors or to all government decision makers. It is a judicial immunity extended by common law to regulatory bodies and quasi-judicial administrative tribunals, such as the AER (and the CRTC): Ernst at paras 40–41, 50–51. Ernst does not suggest that the mere fact that decisions of a government decision maker can be subject to judicial review means that immunity applies or that a claim for damages is unavailable.
(5) Application in this case
(a) Statutory or common law immunity?
[34] The CRTC relies on the immunity extended by common law, as discussed in Ernst. It also relies on section 16 of the Broadcasting Act, SC 1991, c 11, which states the following:
Powers respecting hearings
Attributions
16 The Commission has, in respect of any hearing under this Part, with regard to the attendance, swearing and examination of witnesses at the hearing, the production and inspection of documents, the enforcement of its orders, the entry and inspection of property and other matters necessary or proper in relation to the hearing, all such powers, rights and privileges as are vested in a superior court of record.
16 Le Conseil a, pour la comparution, la prestation de serment et l’interrogatoire des témoins aux audiences tenues en application de la présente partie, ainsi que pour la production et l’examen des pièces, l’exécution de ses ordonnances, la visite des lieux ou l’examen des biens et toutes autres questions concernant ces audiences, les attributions d’une cour supérieure d’archives.
[Emphasis added.]
[Je souligne.]
[35] The CRTC submits that a superior court of record’s “powers respecting hearings” include judicial immunity and that section 16 functions as a statutory immunity provision. ANIM claims that this provision cannot be interpreted as supporting the common law immunity and that this section is very different from section 43 of the former ERCA at issue in Ernst.
[36] In a way, section 16 can simply be seen as a provision that gives the CRTC the powers required to hold hearings: requiring witnesses to appear, swearing them, ordering the production of evidence, etc. However, the provision does not speak solely of the CRTC’s powers, but also of its rights and privileges (the French version of the provision refers only to “attributions”). As noted by the CRTC, in R c Québec (Société des Alcools), 1998 CanLII 13129 (QC CA) at p 24, the Court of Appeal of Quebec found that section 16 includes common law immunity:
[translation]
In short, the appellants’ application for monetary relief relies on a collateral attack of the motivation behind and conclusions of the Commission’s decisions. In my opinion, this is erroneous because on the one hand, the Commission, as an administrative tribunal, is protected by the Common Law immunity granted to Courts of Record, which it is by operation of section 16 of the Broadcasting Act—an immunity that is also extended to lower courts—and because, on the other, the appellants’ action is a deviation from the judicial review procedure chosen by parliament.
[Emphasis added; citations omitted.]
[37] I note that the Supreme Court of British Columbia also seems to have found that section 17 of the Canadian International Trade Tribunal Act, RSC 1985, c 47 (4th Supp), a provision that is very similar to section 16 of the Broadcasting Act in terms of powers, gives that tribunal judicial immunity: Pacific Shower Doors (1995) Ltd v Osler, Hoskin & Harcourt, LLP, 2011 BCSC 1370 at paras 65, 109, 115–16; see also Canada (Procureur général) c Alex Couture Inc, 1991 CanLII 3120 (QC CA), regarding section 9 of the Competition Tribunal Act, RSC 1985, c 19 (2nd Supp).
[38] That said, even if section 16 of the Broadcasting Act confirms that the common law privileges and immunities apply to the CRTC, I accept the ANIM claim that it does not expand the scope of the immunity. If the common law immunity applies in accordance with the analysis in Ernst, its effect is to protect the CRTC. If it does not apply, the protection is not a power, right and privilege as are vested in a superior court of record, and section 16 has no effect.
(b) The immunity regarding adjudicative functions applies, thereby making damages inappropriate and unjust
[39] As I indicated, in Ernst eight justices of the Supreme Court concluded that the immunity applies at least to adjudicative functions, and ANIM is not claiming that the OLA precludes this immunity. The issue is therefore whether it is “plain and obvious” that this immunity applies to the ANIM allegations, namely, whether it is “plain and obvious” that ANIM’s claim involves the CRTC’s adjudicative functions. If so, according to my understanding of the eight justices’ analysis, awarding damages cannot be an appropriate and just remedy and the request for this remedy must be struck. If not, the fact the Supreme Court was equally divided on the availability of damages tells me that it is not plain and obvious that awarding damages under the Charter or the OLA cannot be considered to be an appropriate remedy.
[40] For the following reasons, I find that it is plain and obvious that immunity applies. As indicated in Ernst, the fact that the immunity applies means that it cannot be “appropriate and just” to award damages as a remedy.
[41] To begin with, I note that Stratas J.A. for the Court of Appeal, in JP Morgan, noted that in a motion to strike, the Court must examine the notice of application thoroughly in order to understand the “real essence” or the “essential character” of the application: JP Morgan at paras 49–50. In my opinion, a thorough examination of ANIM’s Notice of Application shows that the claim for damages is based on the CRTC’s exercise of its adjudicative functions.
[42] The core of the allegations in the Notice of Application is found in paragraphs 36 to 79 of the Notice. These paragraphs are grouped under two headings, namely, [translation] “H. Decision 2012-629 and the harm caused to FMCs” (paragraphs 36 to 58) and [translation] “I. Legal Foundations” (paragraphs 59 to 79).
[43] Under the first heading, the Notice of Application describes Broadcasting Decision CRTC 2012-629, the effect of the decision on Sirius XM’s annual contributions to MUSICACTION and the effect of this [translation] “unequal allocation.” It alleges that the CRTC [translation] “did not give any special notice” regarding the decision and its effects “to FMC representatives”, despite the significant changes to Sirius XM’s conditions of licence. Then it describes the [translation] “harm caused to FMCs by Decision 2012-629”. At paragraphs 50 to 58, the Notice of Application alleges a financial impact [translation] “as a result of Decision 2012-629” and states the differences between the contributions received by MUSICACTION and those received by FACTOR for each year between 2013 and 2019.
[44] Under the second heading, the Notice of Application presents the “legal foundations” of the application. This consists mainly of a reproduction of sections of the Charter and the OLA, but also contains some paragraphs going to the substance of the issue, in particular paragraphs 65, 67, 72 and 73. These paragraphs address the notice given by the CRTC of the hearing held for the renewal of Sirius XM’s licence. They allege that the notice is a public service that must be of equal quality in both official languages, that CRTC notices must be adapted to the needs of minority language communities to respect the standard of substantive equality, that FMC representatives must be kept informed of the process of public hearings affecting them, and that the CRTC must advise FMC representatives when an application for a new licence or a renewal involves the broadcaster’s contribution to MUSICACTION and must keep them informed if such an issue is raised at a hearing.
[45] Essentially, the claim for damages relies on allegations that the CRTC did not properly notify FMC representatives, nor did it keep them informed of the issues surrounding the renewal of Sirius XM’s licence. ANIM alleges that this failure constitutes a breach of the CRTC’s obligations under the OLA and the Charter and that this breach caused economic harm to the FMCs because of the decrease in contributions from Sirius XM to MUSICACTION stipulated by the CRTC. In other words, the claim is based on (i) notice from the CRTC (or lack thereof) before and during the hearing; and (ii) the resulting CRTC decision and its impact.
[46] In my opinion, it is plain and obvious that such allegations are directly related to the CRTC’s adjudicative functions. CRTC decisions and the process that leads to its decisions are at the heart of this tribunal’s quasi-judicial obligations and therefore at the heart of the immunity that renders a remedy of damages “inappropriate and unjust” according to the Ernst analysis.
[47] ANIM claims that its application does not concern the CRTC’s quasi-judicial activities and does not target any CRTC decision. I accept that the Notice of Application does not seek to have the CRTC decision overturned, but this does not mean that it does not concern the CRTC’s quasi-judicial activities. Notices are a fundamental aspect of the decision-making process. Because of this, a failure to give proper notice could lead to a decision being set aside and procedural issues, including those surrounding the notice, being raised as a basis for judicial review or appeal of the decision of an administrative tribunal: Confederation Broadcasting (Ottawa) Ltd v Canadian Radio-Television Commission, [1971] SCR 906 at 925–26; FC Act, para 18.1(4)(b). ANIM alleges that the notice the CRTC gave did not comply with its obligations under the OLA and the Charter. But this does not affect the fact that the claim is a claim for monetary relief for the manner in which the CRTC made its decision and the effect the resulting decision had on the FMCs.
[48] ANIM claims that it did not simply seek to recover the amounts it would otherwise have obtained if Broadcasting Decision CRTC 2012-629 included an equal allocation of income between MUSICACTION and FACTOR. However, the harm identified in the Notice of Application by ANIM itself is the financial impact of the decision.
[49] I cannot therefore accept ANIM’s argument that it [translation] “is not concerned with the fairness or the relevance of the decision rendered by the CRTC” but only [translation] “the fact the CRTC did not properly inform the FMCs that a public hearing was being held”. The Notice of Application clearly challenges the fairness of the decision, even though it does not seek to have it set aside. The “unequal allocation” in the decision is at the very root of the financial impact that justifies the claim for damages. It is ANIM that is connecting the failure to give notice with the claim for damages, asking the CRTC to pay it damages [translation] “for the harm the CRTC’s breaches of the OLA and the Charter caused to ANIM’s members” [emphasis added]. The “harm” in question is clearly revealed in paragraphs 50 to 58, namely, the money that was not paid to MUSICACTION because of the allocation. ANIM cannot say both that the decision caused significant harm for which it must be compensated and that it is not challenging the fairness of the decision. At any rate, whether it disputes the fairness of the decision or not, ANIM is clearly challenging the procedures that led to this decision, which are at the core of the CRTC’s adjudicative functions.
[50] The substance of the allegations in this case is therefore different from that in Ernst. The allegations in Ernst involved so-called “punitive” conduct that allegedly prevented Ms. Ernst from writing to the tribunal until she stopped publicly criticizing it. These allegations did not involve a decision by the AER in a case before the tribunal or the process that led to such a decision. This is the difference that led the minority to conclude that it was not plain and obvious that the AER had been acting in its adjudicative capacity, thereby triggering immunity: Ernst at paras 144, 172. In this case, it is not alleged that the CRTC’s conduct was motivated by bad faith, ill-will or abuse of power, assuming that such allegations can frustrate immunity: Ernst at paras 57, 173.
[51] ANIM also notes that in Ernst, the availability of another remedy, specifically judicial review, was a countervailing factor against the awarding of damages: Ernst at paras 33–35. ANIM alleges that in this case, neither an appeal under section 31 of the Broadcasting Act nor an application for judicial review would give them damages or uphold their language rights. ANIM alleges that, at any rate, it is not seeking to challenge Broadcasting Decision CRTC 2012-629.
[52] This argument cannot succeed because it was specifically rejected by the majority of the Supreme Court in Ernst. Ms. Ernst was not seeking to have her exclusion, which the AER had already ended, set aside, and damages were not available through judicial review. Cromwell J. concluded that this did not affect the analysis of the other remedies:
[W]here another remedy is available to effectively address a Charter breach, damages may be precluded by virtue of this countervailing factor. In my view, the availability of judicial review to address alleged Charter breaches by the Board is a strong countervailing factor
I have no doubt, as my colleague Justice Abella notes, that judicial review is available to address the Board’s alleged Charter breaches. . . .
. . .
Thus, judicial review of the Board’s decisions and directives has the potential to provide prompt vindication of Charter rights, to provide effective relief in relation to the Board’s conduct in the future, to reduce the extent of any damage flowing from the breach, and to provide legal clarity to help prevent any future breach of a similar nature. While the remedies available under judicial review do not include Charter damages, Ward directs us to consider the existence of alternative remedies, not identical ones.
[Emphasis added; citations omitted; Ernst at paras 32, 33, 37.]
[53] As noted by Cromwell J. in this passage, Abella J. was in agreement: Ernst at paras 127–29. Therefore, the majority of the Supreme Court rejected the argument that the unavailability of damages through judicial review affects immunity or the availability of this remedy against a tribunal under subsection 24(1) of the Charter: Ernst at paras 166–67. The Supreme Court’s majority decision binds the Court and, in my opinion, it is plain and obvious that the same analysis must apply to the remedial provisions of the OLA.
[54] Contrary to ANIM’s arguments, the fact ANIM is not seeking to have the CRTC decision set aside does not mean that judicial review is not available. The quashing of a decision, the equivalent of a writ of certiorari, is not the only remedy available in a judicial review: FC Act, ss 18(1), 18.1(3). Indeed, a judicial review is not necessarily tied to a decision at all: May v CBC/Radio Canada, 2011 FCA 130 at para 10. As discussed in greater detail below, an alleged breach of obligations under the OLA or the Charter can be raised on judicial review or on appeal under section 31 of the Broadcasting Act. This does not distinguish this case from Ernst. At any rate, according to my interpretation of Ernst, the important factor was the availability of other remedies instead of damages, and not the procedure followed to obtain the remedy: Ernst at paras 32–37.
[55] As a final observation, I would note that I dismiss ANIM’s argument that the CRTC’s alleged obligations under the OLA to inform FMCs about public hearings that might affect them are analogous to the Crown obligation to consult First Nations. The obligation to consult has both a constitutional dimension grounded in the honour of the Crown and a legal dimension that recognizes and affirms existing Aboriginal and treaty rights: Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 at para 19; Constitution Act, 1982, ss 35(1). Given the different sources, scope and effect, I do not see how attempting to draw a comparison with the obligation to consult would be useful in analyzing the questions before this Court.
[56] I conclude that it is plain and obvious that the