Court action could clarify CRTC commissioners’ rights: Denton

A former CRTC commissioner says a court proceeding initiated by current commissioner Raj Shoan, which challenges the findings of an internal report into harassment and seeks to limit Chairman Jean-Pierre Blais' control, could help clarify the rights of and limits to the power of various CRTC players. "It's unfortunate, but the case might actually have some longer-term importance if it can clarify the extent of the rights of commissioners to think and act independently in their capacities as commissioners," Timothy Denton, who served on the CRTC from 2008 to 2013, said in a phone interview Wednesday. Most of Denton's time at the CRTC was spent under the chairmanship of Konrad von Finckenstein, whom he described as "a democrat." "Occasionally you had to be aggressive with to get one's point across, but he always treated a different point of view as an occasion for discussion," Denton said. "He had a way of handling a policy dispute that if it was brought up in private, he was very open." Asked about how Blais, who was named chairman in 2012, differed, Denton said: "Blais was always very good to me. ... But I think that he seeks a greater deal of control of outcomes, or exercises his desire for control of outcomes in a way that may rub some people the wrong way. It certainly has rubbed Shoan the wrong way. ... may not be all that tolerant of deviation by his colleagues." In a few instances, Shoan has been public in his disagreements with CRTC decisions, such as with mobile TV and a decision dismissing a complaint that BCE Inc. was refusing to provide content to would-be over-the-top (OTT) video provider Leiacomm. Shoan was appointed to the CRTC for a five-year term in June 2013. He filed a notice of application with the Federal Court Wednesday, taking issue with the CRTC’s handling of a harassment complaint against him. Last fall, Shoan exchanged emails with Amanda Cliff, the CRTC’s executive director of communications and external relations, in which Shoan “challenged the policy and legal bases for many of Cliff’s proposed courses of action,” the court document outlined. Cliff filed a harassment complaint against Shoan based on the email exchanges and citing Treasury Board policy on harassment prevention and resolution, the document said, noting the two have never spoken in person alone. In October 2014, the CRTC brought in mediator Diane Laurin of Laurin and Associates, who issued a final report in March, the court filing said. It concluded that Shoan’s behaviour "since February 2014 was inappropriate and constituted harassment towards the complainant.” Shoan tried to "undermine the complainant’s credibility with her superiors and staff and commissioners,” and “humiliated the complainant in front of colleagues by sending the emails to her staff, colleagues and Commissioners,” the report found, according to the court filing. It added that Shoan subjected Cliff to “aggressive behaviour” and attempted to “intimidate and coerce her to comply with his demands” by threatening to complain about her to the Office of the Commissioner for Public Service Integrity. According to the filing, on April 7, Blais informed Shoan that he would implement a number of measures recommended by CRTC secretary general John Traversy in response to the report. Those included stipulations that Shoan must copy Traversy on all emails to CRTC staff. Shoan would also be required to coordinate all phone calls to staff through Traversy’s office, in a procedure in which he would be required to outline “the Commission staff member he would like to talk with and the subject of the call” and have Traversy’s office “organize the call.” In the document Shoan filed with the court Wednesday, he argued that the report “contained a number of factual and legal errors.” Shoan said the communications between himself and Cliff did not fall “within the definition of harassment,” and that he did not attempt to “undermine the complainant’s credibility with her superiors, staff and Commissioners,” among 20 other errors. Those errors included findings that Shoan “refuses to recognize the Chairman’s authority and takes issue with the reality that the complainant and staff obey the Chairman’s instructions and directions,” and that various emails he sent showed “arrogance,” were “rude,” “offensive,” “inappropriate” or contained “an aggressive tone.” Shoan also said his behaviour did not constitute harassment as defined by the Treasury Board’s policy, because it was not offensive and did not “demean, belittle, or cause personal humiliation or embarrassment, not was it intimidating or threatening,” according to his filing. Shoan said Traversy and Blais made multiple errors in law in their response to the complaint and the measures imposed infringe on Shoan’s “duties as a Commissioner of the CRTC.” He also said Blais “erred in law and policy by repeatedly attempting to supervise and direct Commissioners, via CRTC staff, through the creation of internal procedures that were and are contrary to the CRTC Act.” He asked the court to quash Blais’ April 7 decision on the complaint, or alternatively for “an order remitting the matter to the Governor-in-Council to be determined in accordance with the decision of this Court.” He also made a request for costs and for “further and other relief as this Honourable Court deems just.” Shoan posted a statement on the LinkedIn-affiliated website slideshare.net that said the court action was "an important step in ensuring that the work of the commissioners of the CRTC continues in an independent and transparent fashion, free from undue interference, according to the legislative acts that govern the practice of the Commission." He added: "My hope is that the judicial review will result in an objective assessment of the issues and a strong rebuke against a culture of control and the quashing of dissent within the CRTC." He said the harassment investigation was the "result of my ongoing, and unanswered, inquires on a number of governance issues to Commission staff and the Direct Reports of the Chairman and CEO of the CRTC." The controversy comes at a busy time for the CRTC. It recently released several directives related to its Let's Talk TV proceeding, including a decision to compel TV service providers to offer basic subscriptions for no more than $25 a month with pick-and-pay options available beyond that. Other key decisions related to the wholesale markets for wireless and wireline services are expected in the near future. On Wednesday, the CRTC released its new three-year plan. Among the intentions highlighted in a press release were creating a draft code to help the public and TV service providers adjust to new regulations, a recently announced review of what should be considered a basic communications service, and taking a look at the reliability of 911 service in Canada. Denton said he does not think the legal conflict will harm the CRTC's performance, though he recognizes the risk. "Personality disputes of this order of seriousness are always unfortunate," he said. "The concern I would have is that the CRTC carry on the good work it is doing. ... For the chairman and the commissioners to be involved in this is sad." Denton said he's never seen an internal conflict at the CRTC play out like this. "I've heard stories of people who locked themselves in their office for two years and scarcely spoke to the chairman, but I've not heard of this before," Denton said. Neither the CRTC nor Blais were publicly commenting on the situation Wednesday. The commission shared a message Blais sent to staff Tuesday, informing them that he had "become aware that Commissioner Shoan has decided to bring a confidential matter to the courts. There may be media reports in the coming days. I would, of course, ask you not to make any comments to anyone including the media. At this time, I want to reiterate my personal commitment to a harassment-free and respectful workplace. Let’s keep our focus on the important work we are doing for Canadians." Marisa Monnin, spokeswoman for Heritage Minister Shelly Glover, who has responsibility for the CRTC, said in an email: "Our government is concerned with the findings of this report, and we believe all allegations of harassment should be investigated thoroughly. But as this matter is before the courts, it would be inappropriate for us to comment any further." — With reporting by Derek Abma at dabma@thewirereport.ca and Anja Karadeglija at akarad@thewirereport.ca and editing by Peter Henderson at phenderson@thewirereport.ca

Court action could clarify CRTC commissioners’ rights: Denton

Broadcast | April 29, 2015

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