The Appeal of Genex from a decision of the CRTC cancelling its radio broadcast licence was dismissed as Genex was unable to establish a breach of the principles of natural justice, the standards of procedural fairness or the CRTC’s own rules of procedure. It was also unable to demonstrate a jurisdictional error or a material error in law that would render the decision unreasonable.

22. November 2005 0

Administrative law – Decisions of administrative tribunals – Canadian Radio-Television and Telecommunications Commission – Permits and licences – Suspensions – Judicial review – Procedural requirements and fairness – Natural justice – Charter of Rights – Freedom of expression

Genex Communications Inc. v. Canada (Attorney General), [2005] F.C.J. No. 1440, Federal Court of Appeal, September 1, 2005, Richard C.J., Létourneau and Nadon JJ.A.

An appeal was commenced by Genex Communications from a decision by the Canadian Radio-Television and Telecommunications Commission (the “CRTC”) refusing the renewal of the broadcast licence of a French-language radio station owned by the Appellant. In the years prior to the licence renewal application, the CRTC received numerous public complaints about the offensive nature of the station’s spoken-word programming. The CRTC ordered the station to comply with its code of ethics as a condition of its licence. Despite numerous warnings, the complaints continued. The CRTC, following an investigation and public hearings, decided not to renew the station’s licence. Genex alleged that the CRTC did not act in compliance with the rules of natural justice, the standards of procedural fairness and its own rules of procedure when it decided not to renew the licence. Genex argued that the CRTC erred in law, made jurisdictional errors, and did not exercise its discretion judicially. Genex further submitted that certain sections of the Broadcasting Act and Radio Regulations contravened s. 2(b) of the Canadian Charter of Rights and Freedoms, and were inconsistent with ss. 92.13 and 92.16 of the Constitution Act on the ground of vagueness.

The appeal was dismissed. Genex was unable to establish a breach of the principles of natural justice, the standards of procedural fairness, or the CRTC’s own rules of procedure. It was also unable to demonstrate a jurisdictional error or such material error in law as would render the non-renewal decision unreasonable. It was within the discretion of the CRTC to not renew the licence, and this discretion was exercised judicially. The contention that Genex had a reasonable expectation that its licence would be renewed was without factual or legal basis. Genex received the time and opportunity to make a full answer and defence to the CRTC. It was amply informed of the issues and allegations placed on the record. It was warned on more than one occasion of the derogatory nature of its programming. It was given notice of possible steps to be taken, including non-renewal of its licence. It was invited to explain itself in accordance with the rules laid down by the CRTC. The CRTC did not unlawfully act as a censor of the content of the Appellant’s programs. It acted as an agency monitoring compliance with the statutory and regulatory standards and the undertakings that had been made by Genex. Compliance with the CRTC code of ethics became a condition of use of the licence, and it was not respected. Non-compliance with a condition of licence was conduct that warranted non-renewal without necessarily resulting in an infringement of freedom of expression and a breach of the Charter. The arguments relating to the constitutional invalidity of the decision and certain provisions of the Act and Regulations were without merit.

To stay current with the new case law and emerging legal issues in this area, subscribe here.