Rogers seeks to have the Court confirm its “arrogance of privilege” as an entitlement

di Joe Volpe del 23 January 2020

TORONTO - Charles Dickens, one of great stature in English Literature, might have described the corporate ethic and culture of Rogers Communication as: “I must have everything so that you can have less than nothing”.

CorrCan Media group was one of seven applicants who answered a CRTC call for a national multilingual, multiethnic news from a Canadian perspective. The Call had been issued in May 2017, when Rogers’ OMNI Regional sought a renewal of it license, after it had abandoned multilingual news on its OMNI stations in 2015.

In May of 2019, the CRTC renewed Rogers’ license, reduced the conditions for that license outlined in the Call, restored the regional component and permitted a partnership with a broadcaster whose shares are controlled by a foreign entity.

The CRTC dismissed the other applications, no reasons given. However, according to files accessed by one of the other applicants (after the fact), Rogers’ president and/or his delegate met with the Chair of the CRTC on several occasions during the assessment period of the applications. Only BCE (Bell), another applicant, was afforded this opportunity.

Four of the unsuccessful candidates petitioned the Governor in Council (Cabinet), under s.28 of the Broadcasting Act, while two of them also sought permission to appeal to Federal Court of Appeal, which permission was denied, so the merits of the refusals were never examined. CorrCan, after Cabinet refused the petition, without reasons, which petition relied on the Multiculturalism Act and the Charter, launched judicial review in Federal Court.

Corrcan sought judicial review on constitutional grounds.

Rogers, obviously not named a Respondent in Corrcan’s judicial review of Cabinet’s decision to deny Corrcan a broadcast licence, brought a motion to have Rogers added as a respondent party alongside the government.

The motion was heard before Case-Management Judge (Prothonotary) Angela Furtanello, in Courtroom 4A at 180 Queen St. West, Toronto.

Forbes values Rogers at $26.6 Billion. Rogers’ legal team argued its right to be a co-Respondant on the grounds that it needs to protect its financial interests. The license has a potential annual gross value of $20 million. Yes, that is less than .0008% of Rogers’ market value.

“Once a direct commercial benefit is conferred [by virtue of a grant of license] … any change to that [decision] has an adverse effect on the beneficiary”, posited their legal team, adding that this would “be unfair to Rogers…even if there would only be a risk” of adverse benefit resulting in potential losses in revenues and stature, it would constitute competition they said.

Corrcan’s lawyer, Rocco Galati, argued that Rogers has no interest nor is it directly affected by Corrcan’s application which simply seeks constitutional relief and its own separate licence, with no effect on Roger’s licence. Galati argued that Rogers’ demand amounted to a reconfiguration of non-existent arguments to suit their position and seek premature status as Resondents in the larger Constitutional discussion.

“Rogers fears competition, so what? Competition is at the base of all our economic, democratic principles”, Galati maintained, bluntly, adding that competition is bolstered by the Competition Act and that attempts to stifle competition are in fact against the law.

Galati argued that the matter before the Court has to do with the Applicant’s right to appeal against the “excesses of authority” by the Governor in Council (GoC). Citing examples in case law and the relevant sections of the Charter, he maintained that such rights (to judicial review) belong to Applicants, as judicial review is a constitutional right. Such rights do not belong to a third-party corporation holding out “chicken-little” arguments about competition to its corporate bottom line.

The GoC is possessed of the resources and ability to meet constitutional challenges. To allow a corporate entity – in this case Rogers – to be a co-Defendant/ co-Respondent would blur the responsibilities of the GoC and to the constitutional integrity of the constitutional right to judicial review of the Applicant from a refusal by the government to breach its constitutional rights, by vague and speculative claims of “potential risks of competition” to Rogers, a mega-hog in the broadcasting industry given a; public monopoly, with public funding to broadcast and produce on behalf of all “ethnic groups”.

Rogers’ lawyers admitted that their client had access to the Applicants’ petitions to Cabinet and had provided input to “inform” the GoC prior to its decision. None of the other petitioners were provided with that information or with an opportunity to rebut any premises it contained.

Judge (Prothonotary) Furtanello has reserved her decision on Roger’s request to stand shoulder to shoulder with the Canadian Cabinet and the Attorney General in the defense of the Constitution of Canada.

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