Blais can name panels: Federal Court of Appeal

TORONTO — A panel of Federal Court of Appeal justices dismissed an application from former CRTC commissioner Raj Shoan challenging the authority of chairman Jean-Pierre Blais to name commissioners to panels. Following a brief hearing at the Toronto courthouse Monday afternoon, judges Mary Gleason, Eleanor Dawson and Judith Woods rendered their disagreement with Shoan's application as outlined by his lawyer Craig Stehr that the legislation governing the CRTC does not give Blais (or any chairperson) the power to select fellow commissioners to hear issues that come before the regulator. Instead, according to the reasons for decision as read out by Dawson, the chairperson has "implicit authority," as recognized by the commission's own bylaws. Calling the application "sufficiently lacking in merit," the trio also ordered that Shoan pay costs of $5,000. The case was initiated a year ago, stemming from what Shoan said in an affidavit was concern that Blais was acting under authority “not explicitly granted to him” through the Telecommunications Act, Broadcasting Act or CRTC Act, and that these actions could “threaten, in a meaningful way, the ability of all Commissioners to operate in an independent manner and to serve their regions in a comprehensive manner.” Shoan was fired as the regional commissioner for Ontario in June and is in the process of appealing the order-in-council that removed him from his post three years into his five-year term. In addition to a request to stop Blais from naming commissioners to more panels, the application also asked to turn over the group picked for three hearings — a review of satellite operator Telesat Holdings Inc. price ceiling for C-band fixed satellite services, a municipal access agreement between the City of Hamilton and BCE Inc., and PIAC’s undue preference complaint against Rogers Communications Inc. and Shaw Communication Inc.’s Shomi. "The applicant asserts that these decisions raise true questions of jurisdiction and so are reviewable on a standard of correctness and the chairperson doesn't have the authority to establish panels to hear these matters. We disagree," Dawson said. She added: "In a sense, anything a tribunal does that involves the interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review." During the hearing, Stehr argued that outside of public hearings called under the Broadcasting Act, the CRTC does not have any prescribed authority to select commissioners to hear cases. There is no such specificity under the Telecommunications Act or the CRTC Act, he said. "There is not a gap that needs to be filled by implied authority," he said. Stehr also argued that under the CRTC Act, the chairperson's role as described as "the chief executive officer of the commission" who "has supervision and direction over the work and staff of the commission" is supposed to be read as the chair having discretion over the work of the staff and not his fellow governor-in-council appointees. However, according the judges, "implicit in such a power is the authority to assign cases and members to cases," Dawson said. This was the first of two cases challenging Blais’ ability to assign commissioners to panels. A second application for judicial review, filed in the spring over Blais’ naming of a panel to next week’s differential pricing practices hearing, has yet to be heard in court. — With reporting by Charelle Evelyn at cevelyn@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Blais can name panels: Federal Court of Appeal

Broadcast | October 24, 2016

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Blais can name panels: Federal Court of Appeal

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