A rift at Canada's broadcast and telecom regulator has again spilled over into the legal system, raising questions about how efficiently and fairly the commission can make public policy decisions.
Raj Shoan, the commissioner for Ontario for the Canadian Radio-television and Telecommunications Commission (CRTC), has commenced a legal action arguing that chairman Jean-Pierre Blais has overstepped his authority by naming panels of commissioners to consider and rule on telecom files.
Mr. Shoan is already fighting the chairman in a separate case, filed with the Federal Court in April, in which he is seeking a judicial review of Mr. Blais's response to a third-party investigation that found Mr. Shoan had harassed a CRTC employee over e-mail.
In a notice of application and affidavit with exhibits filed Thursday with the Federal Court of Appeal in Ottawa, Mr. Shoan argued that in September, the chairman improperly appointed panels of three commissioners – rather than the full slate of nine commissioners – to determine three issues before the CRTC.
(The panels in question – which are expected to consider submissions in writing rather than at a public hearing – were for a challenge to the Shomi streaming video service, an application regarding Bell Canada's access to municipal rights of way in the City of Hamilton and a review of Telesat Canada's pricing for certain satellite services.)
Mr. Shoan said in his affidavit that by appointing smaller panels, Mr. Blais was unilaterally preventing certain commissioners from voting on various matters. In a September e-mail to his colleagues soliciting their support, Mr. Shoan wrote, "the Chairperson is declaring to each of us that, in his view, he can, at any time, take your vote away from you." No other commissioners are publicly supporting Mr. Shoan in his legal action.
In an e-mail to Mr. Shoan a few days earlier, Mr. Blais said that, based on legal advice, he understood that he had the authority to name panels under both the Broadcasting Act and the Telecommunications Act and that previous chairpersons before him had also done so.
"Continuing this discussion will be wasteful of Commission resources," Mr. Blais said. "You will clearly never be persuaded otherwise. Accordingly, neither I nor staff will be engaging further with you on this issue."
Leonard Katz, who was a commissioner and the vice-chairman of telecommunications of the CRTC from 2007 to 2012, said in an interview Friday that it was "unfortunate that cooler heads could not have prevailed earlier on, so this matter would not have boiled over to the extent that it has."
"I wouldn't say [the work environment at the CRTC] is toxic, but I would say it's certainly not as friendly and collegial as it was in the past, that's for sure," he said, adding that the in-fighting is likely causing delays on some files, particularly the three at issue in the court case. This, he said, "obviously is not in the public interest, nor is it in the interest of the applicants who filed the applications."
Mr. Katz said that during his time at the CRTC, commissioners would often negotiate with the chairperson over which panels they sat on. He suggested "some degree of mediation," could solve the dispute between Mr. Shoan and Mr. Blais.
Patricia Valladao, a spokeswoman for the CRTC, said Friday the practice of appointing panels is "well-established among Canadian courts and tribunals."
She said the CRTC, on average, holds 400 decision meetings and issues 700 decisions each year. "So, to effectively manage the workload, the CRTC chairperson has been appointing panels of commissioners since at least the 1970s," she said, adding that Mr. Shoan has been appointed to 16 panels since joining the commission in 2013.
In a list titled "Panel Nominations for 2015" included in the court filing, Mr. Shoan is listed as a panel member on just one out of 18, while other commissioners, including the chairman, were named to multiple panels. Vice-chairman Tom Pentefountas, for example, was named to 17 panels, while Quebec commissioner Yves Dupras was named to 14.
Mr. Shoan was named to the panel on the City of Hamilton's issues with Bell, according to the court filings. But it appears he was deliberately left off the panel on the Shomi application.
In early September, the Public Interest Advocacy Centre (PIAC) – which initiated the proceeding against the joint venture from Shaw Communications Inc. and Rogers Communications Inc. – wrote to the CRTC regarding a public message on Twitter sent by Mr. Shoan in late July, in which he wrote: "Terrific lunch with David Asch of @shomicanada today!" PIAC said it was concerned the tweet "may raise issues of bias."
On Sept. 23, Scott Hutton, executive director of broadcasting for the CRTC, wrote in a reply to PIAC, "We can confirm that no other Commissioner was present at the meeting in question," and noted that a three-member panel that did not include Mr. Shoan would deal with the application.
In a public statement Friday, Mr. Shoan said he launched the case because he believes the CRTC's "default decision-making process is one of a 'council of equals,'" and that the chairman is jeopardizing the independence of individual commissioners.
A date for a hearing in Mr. Shoan's previous case has not been set. In August, Federal Court Justice Cecily Strickland issued an order stating that names, titles and gender identities of any individuals referenced in an investigation report related to the harassment claim against Mr. Shoan be kept confidential.