Canada: Bazos V Bell Media Inc

Last Updated: November 30 2018
Article by Lars Brusven

The recent Toronto municipal election produced no shortage of last-minute court challenges and legal drama. One such dispute came between Bell Media and Faith Bazos (aka Faith Goldy)—the controversial mayoral candidate known for her far-right political views. The Court's decision in Bazos v Bell Media Inc, released just six days before the election, addresses fundamental questions of jurisdiction between courts and administrative tribunals, as well as the circumstances in which the Court will exercise its discretion to grant injunctive relief in a matter which otherwise falls under a tribunal's jurisdiction.

The dispute arose when Ms. Goldy attempted to purchase advertising time on the Bell-owned television station, CP24, to promote her mayoral candidacy. Bell initially agreed, and then later reversed its decision to air Ms. Goldy's advertisements after receiving numerous complaints about her political views. Bell, which characterized its reversal as a "business decision", refunded Ms. Goldy's payment but did not otherwise communicate a reason for the cancellation. There was no suggestion that Ms. Goldy's intended advertisements contained objectionable content.

The Application

Ms. Goldy applied to the Ontario Superior Court of Justice for a declaration that Bell was required to allocate broadcasting time to her advertisements, as well as a mandatory order requiring Bell to do so. Ms. Goldy also sought, in the alternative, the same relief under section 24(1) of the Canadian Charter of Rights and Freedoms (the "Charter"), as well as pursuant to her contract with Bell.

In support of her application, Ms. Goldy relied on regulations passed by the Canadian Radio-television and Telecommunications ("CRTC") under the Broadcasting Act (the "Act"), which require broadcasters to allocate time on an equitable basis to all accredited political parties and rival candidates represented in an election. Ms. Goldy argued that she had a statutory right to purchase airtime from Bell on an "equitable basis," and that Bell violated that right by refusing to provide airtime for her ads.

Rather than oppose the substance of Ms. Goldy's complaint, Bell argued that the Superior Court did not have jurisdiction to adjudicate the dispute. Bell submitted that if Ms. Goldy wished to enforce CRTC's regulations, she should have applied to the CRTC tribunal instead.

The Court ultimately agreed with Bell that the CRTC—not the Court—was the appropriate venue in which to adjudicate this dispute. In his analysis, Justice Cavanagh reasoned that the CRTC had exclusive jurisdiction in the area with which the dispute was concerned, and that the essential character of the dispute, itself, fell within that same area. Moreover, he found that the CRTC has authority to grant the very relief sought by Ms. Goldy, including a mandatory order against Bell which would operate, in effect, as injunctive relief.

Deference to the Specialized Expertise of an Administrative Tribunal

Justice Cavanagh's analysis began with a consideration of whether the dispute concerned an area of concurrent, overlapping, or exclusive jurisdiction as between the Superior Court and the CRTC.

In his reasons, Justice Cavanagh observed that the language in section 3(2) of the Act established a "principle of exclusivity," by which Parliament signalled that the purposes of the Act would be best achieved if left to a single, independent public authority. He also noted that it would be undesirable for the Superior Court to assume jurisdiction in this case because doing so would disrupt Parliament's intended scheme for the interpretation of the regulations made under the Act to be reviewed by the Federal Court of Appeal.

Interestingly, Justice Cavanagh seized on the concept of "curial deference" as a factor weighing in favour of the CRTC having exclusive jurisdiction over this matter. Curial deference is the basic idea that when a legislature sets up a specialized tribunal and invests it with broad powers, that tribunal should be given deference to make decisions with which a court might otherwise disagree. Although the CRTC had not issued any decision in this matter, Justice Cavanagh applied the concept of curial deference to the preliminary question of jurisdiction. His rationale for doing so was that the same deference that should be afforded to a tribunal's decision should similarly weigh in favour of disputes being adjudicated according to the statutory regime, rather than by the courts.

Ultimately, in finding that the CRTC maintained exclusive jurisdiction, Justice Cavanagh concluded that, if the Court were to assume jurisdiction, it would violate the spirit, if not the letter, of the legislation.

Application for Charter Relief does not Change the Essential Character of the Dispute

Ms. Goldy also argued that the Superior Court should hear her application because it involved broad Charter principles including freedom of expression and democratic rights. She argued that these principles fell squarely within the competence of the Superior Court, and outside of the traditional ambit of the CRTC.

Justice Cavanagh held that the Superior Court has concurrent jurisdiction with the CRTC over Charter issues. However, he observed that the existence of concurrent jurisdiction does not, itself, preclude the CRTC from granting Charter relief. Indeed, the Supreme Court of Canada, in 2010, confirmed that administrative tribunals have the authority to grant Charter remedies. In addition, tribunals must always act consistently with the Charter and its values when exercising their statutory functions. Further, the CRTC was familiar with interpreting the many broad objectives of the Act itself, which reflected various societal interests. Finally, nothing about the specific Charter values invoked by Ms. Goldy in this case changed the fundamental nature of the dispute between herself and Bell.

The Court thus declined to exercise its discretion to "carve out" the Charter issues from the CRTC's jurisdiction and have them heard separately.

No Exceptional Circumstances to Warrant an Injunction

Ms. Goldy placed considerable emphasis on her argument that she would be deprived access to justice if the Court declined to exercise its jurisdiction, because her application to the CRTC would not be decided before the election. She therefore urged the Court intervene by ordering injunctive relief.

Justice Cavanagh agreed with Ms. Goldy that the Court had residual jurisdiction to grant an injunction in rare circumstances, such as dire emergencies, even where a statutory tribunal has exclusive jurisdiction over the subject matter of the injunction. However, he declined to do in this case in light of the evidence in the record before him, which demonstrated, among other things:

  • Ms. Goldy took no steps to make an application to the CRTC;
  • There was no evidence to confirm that the CRTC would have been unable to hear her application before the election, had she applied. Bell, in fact, filed evidence demonstrating that it was possible for the CRTC to issue decisions within a very short time period;
  • Ms. Goldy did not present evidence that she attempted to place ads with other media outlets;
  • Ms. Goldy was polling at just 6% support for her mayoral candidacy at the time of the hearing, and the Court's intervention would not have any realistic impact on the outcome of the election.

Impact

The decision in Bazos v Bell Media underscores the importance of reviewing the relevant legislative scheme to determine the most appropriate venue when commencing legal proceedings. Second, the decision makes clear that adding, or emphasizing, Charter relief will, itself, not result in a court exercising its jurisdiction where the specialized tribunal is otherwise authorized to grant Charter relief.

Finally, where a litigant seeks the Court's intervention on an urgent basis, she or he should very carefully consider the evidence adduced in support of their request. Justice Cavanagh was unimpressed and, ultimately, unpersuaded by Ms. Goldy's case in light of the evidence that she declined to initiate an application to the CRTC, did not seek to place advertisements with other media outlets, and was admittedly polling at a meager 6%. As such, her circumstances did not warrant the Court's urgent intervention.

With notes from Jessica Kras.

Continue reading original source

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions