A business communications company (“Brunico”) which owned two national, biweekly, tabloid-sized publications successfully applied for judicial review of the decision of the Canadian Heritage Minister (“Minister”) to disqualify it for funding in the year 2001-2002 under the Support for Editorial Content Grant Program, where the Minister had applied a test adopted only in January of 2002 to determine whether the publications were newspapers or magazines, and whether they were therefore eligible for funding
Brunico Communications Inc. v. Canada (Attorney General),  F.C.J. No. 789, Federal Court, April 30, 2004, Von Finckenstein J.
Brunico first applied for funding for its publications under the Support for Editorial Content Grant Program in October of 2000. Brunico received funding totalling more than $200,000. However, on its second application, Brunico was denied funding. The fund was designed to support magazines but not newspapers. The definition for eligible magazines in 2001-2002 was released in the Applicant’s Guide for that year. Subsequently the Minister, in consultation with two industry groups, developed a test for distinguishing between newspapers and tabloids. This test was adopted on January 25, 2002. The definition of eligible magazine and the newly adopted test was set out in the Applicant’s Guide for 2002-2003. A major component of the new test was a classification as either a magazine or a newspaper based largely on the physical traits of the publication. Although this new way of distinguishing newspapers from magazines was adopted in January of 2002, it was applied retroactively to the ongoing funding cycle for 2001-2002. Accordingly, Brunico was held ineligible for any funding during this cycle.
When the Applicant’s Guide for 2002-2003 was made available, applicants were given an opportunity to revise their publications in order to meet the definition of eligible magazines under the fund. Brunico made modifications to its publications and its application for the funding cycle for 2002-2003 was approved.
On the application for judicial review, the two main questions were:
- Did the Minister owe the applicant a duty of fairness and did she breach that duty?
- Did the Minister violate the applicant’s right to freedom of expression?
The court considered the Department of Canadian Heritage Act as well as the Canadian Charter of Rights and Freedoms, specifically section 2 which deals with freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
The court held that the Minister did owe the applicant a duty of fairness because this was an administrative decision which affected the privileges and interests of the applicant rather than a legislative decision of a general nature based on broad considerations of public policy. The court went on to consider the nature of the duty of fairness and held that the content of the duty of the fairness varies according to context. In the decision of Baker v. Canada (MCI),  2 S.C.R. 817 at 837-844, the court outlined some important factors in defining the content of the duty of fairness as follows::
- the nature of the decision being made and the decision-making process,
- the nature of the statutory scheme and terms of the statute pursuant to which the decision-maker acts,
- the importance of the decision to the individual affected by it,
- the procedures chosen by the decision-maker, particularly if the statute has left the choice of such procedures to the decision-maker.
The court noted that the nature of the duty of fairness should also encompass a consideration of the legitimate expectation of the individual affected by the decision. The court stated:
Based upon the above factors, the Minister owed a relatively low level of procedural fairness to the applicant in this case. The decision being made by the Minister was primarily administrative in nature and was made pursuant to a broad discretionary power granted to her by the Act.
The court held that the duty of fairness was breached. The Minister was held to have applied the rules set out in the Applicant’s Guide for 2002-2003 to applications received in 2001-2002.
The application for judicial review was successful, with the matter being referred back to the Minister for determination in accordance with the rules set out in the Applicant’s Guide for 2001-2002. The court held that there was no need to consider the Charter issue raised by the Applicant in light of the procedural fairness findings.
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