TORONTO – Ontario CRTC commissioner Raj Shoan says chairman Jean-Pierre Blais has been exceeding his authority by “unilaterally” naming panels of commissioners to hear and decide upon certain applications made to the Regulator and so Shoan has asked the Federal Court of Canada to prohibit the chair from naming such panels on his own.
Shoan’s application to the Court and his affidavit says chairman Blais has convened all commissioner panels for CRTC matters, but also that the chairman is not technically allowed to do that on his own. Instead those decisions are supposed come from a committee, not just the chair, it says.
“The Telecommunications Act does not provide the Chairman with a general authority to name panels of Commissioners to deal with, hear or determine matters under the Telecommunications Act on behalf of the Commission as a whole,” reads Shoan’s petition to the Court. The authority for the chairman to name panels is limited, continues the document, to the Broadcasting Act and An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.
Panels discussing telecom issues, says Shoan’s filing, must come from the CRTC’s Telecommunications Committee and not from the chair himself.
Shoan’s petition and affidavit specifically targets a September 23, 2015 email where the chair told the commissioners he convened three telecom panels “without the direction of the Telecommunications Committee,” and that “the Chairman has similarly constituted other panels of Commissioners, including under the Broadcasting Act, without authority.”
According to section 20 of the Broadcasting Act, continues the Shoan petition, “the Chairman has the explicit authority to establish panels of not fewer than three commissioners to deal with, hear and determine matters on behalf of the Commission. The Chairman’s authority is triggered only when the Commission decides to proceed with a hearing… it is either the Telecommunications Committee or the Broadcasting Committee that decides whether a matter proceeds to a hearing. Prior to that decision, the Chairman cannot lawfully name a panel in respect to those matters.”
(Ed note: We’ve been covering this industry for 18 years now and have always understood the CRTC chairman selects all panels for all matters. The Commission issues around 700 decisions a year now and convenes, we’re told, about 400 decisional meetings in a year to rule on a great number of things. Eighteen commissioner panels have been convened so far in 2015. This passage has been corrected from an earlier version to correct an error.)
Shoan’s affidavit which accompanies the petition – and the email threads that were also submitted as exhibits, paints a deeper picture of two men disagreeing on legal matters to the point where Shoan felt he had to bring it to court. However, according to his affidavit, the Ontario commissioner believes something more than the selection of commissioner panels is wrong
Since he’s been Ontario commissioner, wrote Shoan (he was hired in July 2013, about a year after Blais was appointed as chair) “I have become increasingly concerned with changes in the governance structure at the CRTC. In my view, these changes threaten, in a meaningful way, the ability of all commissioners to operate in an independent manner and serve their regions in a comprehensive manner.”
Shoan goes on to say that the roster of commissioners, including the chair, should work as a “council of equals” since each one’s vote counts the same, including the chair’s. It’s that idea, he adds, that is “under attack by the chairperson of the CRTC.”
“Given the Chairperson’s reluctance to address the legal concerns, I made it a personal priority to keep watch over the internal workings of the CRTC.” – Raj Shoan, CRTC
The affidavit goes on to describe another matter concerning the commissioning of research reports in 2014 where Shoan brought his legal and governance concerns before the chair, and where Blais countered with a different legal interpretation of his own responsibilities and jurisdiction. After some e-mail exchanges, Shoan says the chair stopped responding to suggestions he had on that matter.
“Given the Chairperson’s reluctance to address the legal concerns, I made it a personal priority to keep watch over the internal workings of the CRTC in order to ensure that the integrity of the institution’s decision-making processes and procedures remained intact.”
The affidavit outlines a number of other e-mail exchanges, all of which are included in the court filing, where Shoan and Blais disagree, sometimes strongly, with Shoan often demanding that the chair seek independent legal counsel on a matter. It appears from the affidavit that Blais did not act on any of Shoan’s suggestions.
When the affidavit addresses the panel nominations of this September, it outlines the back and forth of emails culminating in one where Blais told Shoan continuing to pursue the matter was a waste of Commission resources “and that he ordered staff to no longer ‘engage’ with me on this issue. This continued a long practice of the CRTC Chairperson to deny staff support to CRTC Commissioners whose questions displeased him,” it reads.
(This is the second filing by Shoan against the chairman. Also before the court still is his Federal Court filing calling for a judicial review of Chairman Blais’ leadership of the CRTC, which we reported on in June).
As for CRTC chairman Blais, a CRTC spokesperson told us he would not be commenting on any of this.
Shoan, however, did issue a statement, which reads: “In my role as Ontario Commissioner, I have been vocal that inappropriate changes – some subtle, others far more worrisome – have been made to the governance structure at the Canadian Radio-television and Telecommunications Commission (CRTC). I have become increasingly concerned in recent weeks that these changes have affected the decision-making process of the Commission. It is for this reason that, yesterday, I filed an application for judicial review with the Federal Court of Appeal.
“The CRTC’s default decision-making process is one of a ‘council of equals’. In my view, this ‘council of equals’ is being jeopardized by unilateral decision-making by the Chairperson of the CRTC in contravention of existing CRTC by-laws. The independence of each Commissioner is crucial to the proper functioning of the CRTC – independence which is meant to be secured under the by-laws in question.
“I take my duties as a CRTC Commissioner, and my related obligations to the Canadian public, very seriously. It is my hope that, through this review, a fair, balanced and independent governance structure will be restored at the CRTC.”
Cartt.ca will have more about this on Monday.
