Canada (Commissioner of Official Languages) v CBC/Radio-Canada (2014)

Background

In March 2009, CBC/Radio-Canada announced substantial nation-wide budget cuts. For CBEF Windsor, the only French-language radio station in southwestern Ontario, the results were staff cuts (from nine to three employees), the elimination of all locally produced programs and the transformation of the Windsor station into a “production centre.” The Francophone community of Windsor and surrounding areas mobilized and created the Comité SOS CBEF to speak out against the cuts to CBC/Radio-Canada and their potential effects on the community. As a result, 876 complaints were filed with the Office of the Commissioner of Official Languages against CBC/Radio-Canada. The complainants argued that the decisions taken by CBC/Radio-Canada adversely affected the vitality of their Francophone community. CBC/Radio-Canada refused to cooperate with the Commissioner of Official Languages’ investigation, since it believed that its programming activities were regulated exclusively by the Canadian Radio-television and Telecommunications Commission (CRTC).

In his investigation report, the Commissioner concluded that CBC/Radio-Canada had not fulfilled its obligations under Part VII of the OLA, particularly the requirement that federal institutions take positive measures to enhance the vitality of Canada’s English and French linguistic minority communities and support and assist their development^{Footnote 1}. Indeed, CBC/Radio-Canada had not held consultations or analyzed the effect of its decisions on the vitality of the French-speaking community of Windsor and southwestern Ontario. One of the Commissioner’s recommendations was that CBC/Radio-Canada take this obligation into account and review its decision accordingly.

In 2010, the Commissioner filed an appeal in Federal Court against CBC/Radio-Canada. The proceedings sought to clarify the scope and nature of CBC/Radio-Canada’s obligations under Part VII of the OLA and to confirm the Commissioner’s jurisdiction to investigate complaints against CBC/Radio-Canada. Dr. Karim Amellal, Vice-President of SOS CBEF, joined the Commissioner’s proceedings as a co-applicant.

On May 29, 2012, the Federal Court handed down an interlocutory decision in which the judge held that the Commissioner had concurrent jurisdiction to that of the CRTC and that the Commissioner could therefore investigate complaints filed under the OLA against CBC/Radio-Canada. However, since CBC/Radio-Canada’s application for renewal of its broadcasting licences was before the CRTC at that time, the judge determined that the CRTC was the “the forum favoured by Parliament for discussions to be held on the decrease in local or regional French-language programming”^{Footnote 2} and ordered a stay of proceedings so that the CRTC could render its decision.

In its 2013 decision^{Footnote 3}, the CRTC imposed a number of conditions on CBC/Radio-Canada, including the obligation to broadcast at least 15 hours of local production at CBEF Windsor, to consult official language minority communities (OLMC), to report annually to the CRTC on those consultations and to demonstrate how its decision-making process took into consideration the feedback from those consultations^{Footnote 3}.

Following the CRTC decision, the Court invited the parties to make submissions regarding the continuance of proceedings and any request for final judgment.

In his final judgment, the judge confirmed his interlocutory judgment on the Commissioner’s jurisdiction. He clarified the application of Part VII of the OLA and ruled on the appropriateness of lifting the stay of proceedings that had been ordered in his interlocutory judgment^{Footnote 4}.

Commissioner’s jurisdiction

The judge reaffirmed the determination he had made in his interlocutory judgment to the effect that the Commissioner has jurisdiction to investigate official languages-related complaints filed against CBC/Radio-Canada. Specifically, the Commissioner has jurisdiction to investigate “with regard to the adverse impacts on the OLMC of Southwestern Ontario that potentially resulted from the Corporation’s decision in 2009 to proceed with substantial budget cuts aimed specifically at CBEF Windsor.”^{Footnote 5} Indeed, the judge rejected CBC/Radio-Canada’s assertion that the CRTC has exclusive jurisdiction over the content of programming produced or broadcast by CBC/Radio-Canada.

Application of the OLA

The Court reiterated that the protection of minority rights is an “indispensable constitutional principle, itself the creator of positive obligations.”^{Footnote 6} It affirmed that section 41 of the OLA reflects Parliament’s desire to foster the full recognition of the equality of English and French and to enhance the vitality of official language minorities.

The Court stated that “the existence of a specific regulatory framework under the BA [Broadcasting Act] is not sufficient to prevent the enforcement of the OLA, or the general control exercised by the Commissioner and the Federal Court over compliance with language obligations under the OLA or the Constitution.”^{Footnote 7} Specifically, the judge stated that CBC/Radio-Canada was subject to the OLA and called the obligations arising from Part VII of the OLA a “categorical, non-negotiable imperative.”^{Footnote 8} He clarified the obligations provided for in section 41 of the OLA by affirming that this provision requires federal institutions to take positive measures to enhance the vitality and support the development of OLMCs and also “imposes an obligation to act in a manner that does not hinder the development and vitality of Canada’s Anglophone and Francophone minorities.”^{Footnote 9}

Appropriateness of lifting the stay of proceedings

The Federal Court refused to lift the stay of proceedings that was ordered in its interlocutory decision of May 29, 2012^{Footnote 4}. Indeed, the Court reaffirmed that “the CRTC is, pursuant to the BA [Broadcasting Act], the preferred forum for discussing the impact of the budget cuts on programming, ruling on the issue of the decrease in regional or local programming broadcast by CBEF Windsor, forcing the resumed broadcasting of the programs cancelled by the Corporation, prescribing a minimum threshold for local or regional production hours and prescribing any other appropriate remedy in the circumstances, including imposing any consultation and reporting requirements with respect to decisions and measures that could affect OLMCs.”^{Footnote 10} The judge also stated that the CRTC decision is definitive and that, as a result, the proceeding before the Federal Court “is now largely moot.”^{Footnote 11} The judge held that “[m]ost of the issues were resolved by the CRTC, namely, the minimum number of local programming hours that CBEF Windsor must provide and the Corporation’s duty to consult and obligation to determine the impact of its decisions on OLMCs.”^{Footnote 12} In other words, although the CRTC does not have jurisdiction to determine whether CBC/Radio-Canada has complied with the OLA, its 2013 decision regarding license renewal has had the effect of rendering the proceedings “largely moot.”^{Footnote 11}

CBC/Radio-Canada has appealed this Federal Court decision to the Federal Court of Appeal.