Counsel:

Counsel for the Plaintiff: R.D.W. Dalziel.

Counsel for the Defendant Canadian Broadcasting Corporation: G.E. Rafter.

Counsel for the Defendants Global Television Network Inc. and Global Communications Limited: M.J. Freiman and C. Lonsdale.

Counsel for the Defendant The Attorney General of Canada: R.J.
Danay.

       W. EHRCKE J.:—

Introduction

¶ 1      Before me are two motions, one brought by the plaintiff, Adbusters Media Foundation ("Adbusters"), and one brought by the defendants Global Television Network Inc. and Global Communications Limited (collectively the "Global Defendants"). All parties agree that for the purposes of these motions, the two Global Defendants may be treated as one.

¶ 2      In their motion, the Global Defendants seek an order pursuant to Rule 19(24) of the Rules of Court striking out Adbusters' writ of summons and amended statement of claim and dismissing the action against them "on the basis that the Plaintiff's claims disclose no reasonable claim in that the Charter does not apply to private corporations." The motion of the Global Defendants also refers to Rule 14(6), but their counsel made no reference to that Rule in argument.

¶ 3      The motion brought by Adbusters seeks to add the Canadian Broadcasting Corporation (the "CBC") and the Canadian Radio-Television and Telecommunications Commission (the "CRTC") as defendants, and to make incidental amendments to the amended statement of claim. Adbusters also seeks special costs of its motion as against the Attorney General of Canada.

¶ 4      It will be convenient to consider the Global Defendants' motion first, as the findings on that motion may have implications for the resolution of Adbusters' motion.

Facts

¶ 5      A motion to strike out a claim under Rule 19(24) does not proceed on evidence, but rather on the pleadings. The question to be determined is whether it is plain and obvious that the pleadings disclose no reasonable cause of action. For purposes of the motion, that question is to be decided on the assumption that all the facts pleaded are true: McNaughton v. Baker (1988), 25 B.C.L.R. (2d) 17 (C.A.), at p. 23. The following is a summary of the relevant facts as pleaded by Adbusters.

¶ 6      The CBC and the Global Defendants are holders of licences issued under the Broadcasting Act, S.C. 1991, c. 11, which they use to broadcast nationally. The CBC is a Crown corporation continued pursuant to the Broadcasting Act.

¶ 7      The CRTC is a commission established under the Canadian Radio-television and Telecommunications Commission Act, R.S.C. 1985, c. C-22, and empowered by the Broadcasting Act to regulate and supervise the Canadian broadcasting system.

¶ 8      In 2003, Adbusters attempted to initiate a television campaign through the broadcast of ten advertisements (the "Advertisements"). The Advertisements are short, video based programs that, according to Adbusters, are intended to inform, enlighten and entertain. They presented varying individual messages but were centred around a criticism of the influence of the media, and especially the television media, on society. Subjects of the Advertisements included fast food, the fashion and beauty industry, the use of sex and violence on television, and the commercialization of society. Adbusters says that the Advertisements were of broadcast quality, and were approved as such by the Telecaster Services branch of the Television Bureau of Canada, which is a private regulatory body that reviews commercials to ensure they meet industry standards for content and ethics.

¶ 9      Adbusters sent nine of the Advertisements to the Global Defendants, who refused to televise any of them. All ten Advertisements were submitted to the CBC, who refused to air any of them on CBC Newsworld or on the main CBC network during news or current affairs programming. The CBC accepted some of the Advertisements for restricted airing.

¶ 10      According to Adbusters, the reason for the refusals was that the anti-consumerist message of the Advertisements was inconsistent with the defendants' business models and their perception of the preferences of their commercial clientele.

¶ 11      Adbusters brought the present action by way of writ of summons and statement of claim dated January 17, 2005, against the Global Defendants, the CBC, CTV Television Inc. ("CTV") and the Government of Canada. Adbusters filed a notice of discontinuance on April 7, 2006 with respect to the CBC and CTV, and it filed an amended statement of claim on April 10, 2006. It now seeks once again to add the CBC as a defendant, as well as the CRTC.

¶ 12      As set out in its statement of claim, Adbusters' case is that the exclusion of the Advertisements from the airwaves was a violation of its right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter"). Adbusters' claim is based on their assertion that Global and the CBC were "government" for purposes of the Charter when they chose not to accept the Advertisements submitted by Adbusters for broadcast.

¶ 13      If relief against the Global Defendants and the CBC is unavailable, Adbusters wishes to advance a secondary claim against the federal Crown. That claim asserts that the federal Crown, including Parliament and the CRTC, has given broadcasters the power to decide which viewpoints will be expressed on Canada's public airwaves. By having done so without ensuring that broadcasters will not engage in unjustifiable viewpoint discrimination, the federal Crown's actions and inactions, taken in totality, infringe s. 2(b) of the Charter.

Should Adbusters' Claim Against the Global Defendants Be Struck Out?

¶ 14      The Global Defendants seek an order pursuant to Rule 19(24) for the amended statement of claim to be struck out and the claim against them dismissed. They submit that the amended statement of claim discloses no reasonable claim against them.

¶ 15      Rule 19(24) provides:

¶ 16      The test for striking out pleadings under Rule 19(24)(a) is whether, assuming the facts alleged in the pleadings can be proved, it is plain and obvious that the claim discloses no reasonable cause of action. In Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Wilson J. speaking for the Court wrote at p. 980:

¶ 17      Adbusters' claim against the Global Defendants is that they infringed its rights under s. 2(b) of the Charter. The Global Defendants submit that as a private corporation, the Charter does not apply to their dealings with Adbusters. They rely on s. 32(1) of the Charter, which provides:

¶ 18      The Global Defendants argue that it is plain and obvious that they are not "government" within the meaning of s. 32(1), and therefore the application under Rule 19(24) should be allowed as the amended statement of claim does not disclose any reasonable cause of action against them. They rely on the decision of the Supreme Court of Canada in McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at p. 261, where La Forest J, said this in relation to s. 32(1):

¶ 19      Adbusters resists the motion to strike on two bases, one procedural and one substantive. First, it submits that its claim involves a novel and complex issue of law with respect to the application of the Charter, and such issues cannot properly be resolved on an application under Rule 19(24). It relies on the judgment of the Supreme Court of Canada in MacKay v. Manitoba, [1989] 2 S.C.R. 357, where it was held at pp. 361-362 that Charter issues should not be resolved in a factual vacuum:

¶ 20      Adbusters submits that the issue of whether the Charter applies to the Global Defendants should only be determined at trial, where there will be an opportunity to adduce all the relevant evidence to provide the necessary context.

¶ 21      I would not accede to that argument. As set out in Hunt, an application under Rule 19(24) is not about what will likely be proven at trial, but rather about the adequacy of the pleadings. Such an application proceeds on the most favourable possible assumption for the plaintiff, namely, that all of the facts pleaded by the plaintiff can be established by properly admissible evidence. For that reason, Adbusters could not possibly be in a stronger position at trial than it is on this application.

¶ 22      Adbusters' second argument is that it has an arguable case on the merits, and therefore it is not "plain and obvious" that its claim cannot succeed. It says that the Global Defendants were implementing a government policy when they decided whether to carry the Advertisements. Adbusters refers to para. 39 of its statement of claim, where it says that the Global Defendants, in broadcasting pursuant to their licences issued under the Broadcasting Act were carrying out specific governmental objectives and thereby "assume[d] the Government of Canada's Charter responsibilities with respect to their performance in that regard."

¶ 23      Adbusters' case is that the specific policy implemented by the Global Defendants is the broadcasting policy for Canada described in s. 3 of the Broadcasting Act, which includes "provid[ing] a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern."

¶ 24      The Global Defendants argue that the point advanced by Adbusters has already been decided against it in an earlier decision of this Court: Adbusters Media Foundation v. Canadian Broadcasting Corp., [1995] B.C.J. No. 2325 (S.C.), appeal dismissed as moot, (1997), 154 D.L.R. (4th) 404 (B.C.C.A.) (hereafter referred to as "Adbusters No. 1"). In that case, the plaintiff argued that the CBC had violated its rights under ss. 2(b) and 15 of the Charter when it declined to broadcast one of its advertisements. It contended that the Charter applied to the CBC either because it is a governmental body, or because in the circumstances, the Charter applied to all broadcasters.

¶ 25      Holmes J. considered and applied the decision of the Supreme Court of Canada in McKinney, as well as Harrison v. University of British Columbia, [1990] 3 S.C.R. 451; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483 and Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570. At paras. 31-33, he observed:

¶ 26      At para. 48, Holmes J. concluded that the Charter does not apply to the CBC either as a governmental body or as a broadcaster generally:

¶ 27      Adbusters argues that I should not follow the 1995 decision of Holmes J. because two years later in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, the Supreme Court of Canada formulated a new test that goes beyond anything contemplated in McKinney and the other cases upon which the decision in Adbusters No. 1 was based.

¶ 28      Adbusters submits that in Eldridge, the Court added a new factor that must be considered when determining whether a non-governmental entity was performing an inherently governmental activity, and that is, whether the private entity was implementing a specific governmental policy or program.

¶ 29      The relevant passages from Eldridge appear at paras. 41-44:

¶ 30      Adbusters submits that while para. 41 is a restatement of the test in McKinney, paras. 42-44 amount to a new test that had not previously been articulated and that was not considered in Adbusters No. 1. This test focuses on whether the actions of the non-governmental entity are truly governmental in nature, because they are the implementation of a government program.

¶ 31      The Global Defendants submit that these passages from Eldridge do not amount to a new test, and therefore, they do not provide a basis for distinguishing the decision of Holmes J. in Adbusters No. 1. They point out that at p. 275 of McKinney, La Forest J. specifically referred to the implementation of governmental policy as a factor that needed to be considered:

¶ 32      I agree with the Global Defendants that the Supreme Court of Canada's decision in Eldridge does not amount to a departure from the principles in McKinney and therefore does not provide a basis for distinguishing the decision of Holmes J. in Adbusters No. 1. In Eldridge Mr. Justice La Forest went out of his way to explain how his reasoning is based on what was said in McKinney. He specifically quoted the above-noted passage from p. 275 of McKinney that mentioned the implementation of governmental policy as a relevant factor.

¶ 33      I therefore consider myself bound to follow the decision of Holmes J. in Adbusters No. 1. That case clearly held the CBC's action of declining to broadcast one of Adbusters' advertisements was not subject to Charter scrutiny, and that the same result would apply even if the CBC were a private broadcaster.

¶ 34      I conclude that it is plain and obvious that Adbusters' pleadings in the present case do not raise a reasonable cause of action against the Global Defendants. As against the Global Defendants, the amended statement of claim is struck out and the action is dismissed.

¶ 35      In their written argument, the Global Defendants submitted that there should be an order for special costs against Adbusters. They withdrew that submission during oral argument.

¶ 36      Adbusters submits that it should be relieved from any order as to costs because it is a public advocacy organization.

¶ 37      In the circumstances of this case, I am satisfied that the usual rule should apply, namely, that costs follow the event. The Global Defendants shall have their costs against Adbusters on Scale B.

Should the CBC be Added as a Defendant?

¶ 38      In its notice of motion, Adbusters applies to add the CBC as a defendant.

¶ 39      The application is brought pursuant to Rule 15(5)(a), which provides:

¶ 40      An unusual circumstance in this case is that the CBC had been named as a defendant when the original writ of summons and statement of claim were filed. Later, there were settlement discussions between Adbusters and the CBC, and Adbusters filed a notice of discontinuance. There were also discussions about a release or a covenant not to sue, but no such document was ever signed by Adbusters.

¶ 41      Adbusters has filed an affidavit sworn by their current president, Kalle Lasn, that the decision to discontinue was motivated by financial limitations that Adbusters was facing at the time.

¶ 42      The CBC opposes the application to add them as a defendant on three bases.

¶ 43      First, it argues that there was a concluded settlement between the parties, and this should result in a stay of any further proceedings against them pursuant to s. 8 of the Law and Equity Act, R.S.B.C. 1996, c. 253.

¶ 44      Second, the CBC argues that Rule 36(8) should be interpreted to preclude adding them as a defendant to the same action in which there has already been a discontinuance. Rule 36(8) provides:

The CBC submits that in the context of that Rule, "subsequent proceeding" cannot include the very same action in which there has been a discontinuance filed.

¶ 45      Finally, the CBC submits that it is not just and convenient for it to be added as a defendant, and Adbusters' application should therefore be refused.

¶ 46      I need not decide whether there was a concluded settlement agreement or whether Rule 36(8) precludes adding a party to the same proceeding in which there has already been a discontinuance, as I am satisfied that the CBC must succeed on its third point, namely, that it is not just and convenient for it to be added as a defendant.

¶ 47      The threshold for showing that "there may exist ... a question or issue" between the plaintiff and the proposed new defendant under Rule 15(5)(a)(iii) is a low one; the plaintiff need only show that there is a possible cause of action that is not entirely frivolous: Strata Plan LMS 1212 v. Coquitlam (City), (2004), 31 B.C.L.R. (4th) 356 (S.C.) at para. 15. Adbusters submits that the threshold is the same as that for defeating an application to strike out a claim under Rule 19(24)(a).

¶ 48      For the reasons discussed above in relation to the Global Defendants, I have found that the present case cannot be distinguished from Adbusters No. 1. There, on facts very similar to the present case, Holmes J. decided that the actions of the CBC were not subject to Charter scrutiny.

¶ 49      I conclude that it is not just and convenient to add the CBC as a defendant pursuant to Rule 15(5)(a). Adbusters' application is dismissed against the CBC. The CBC shall its costs of this motion on scale B.

Should the CRTC be Added as a Defendant?

¶ 50      Adbusters applies in its notice of motion to add the CRTC as a defendant and to amend its statement of claim accordingly.

¶ 51      Counsel for the Attorney General of Canada appeared on the plaintiff's motion and opposes it, on the basis that the addition of the CRTC as a party to this action is precluded by s. 23(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. That section provides:

¶ 52      Although s. 23(1) uses the word "may", it has been interpreted as meaning that where proceedings are taken against the Crown, they may only be taken in the name of the Attorney General of Canada, unless otherwise provided by federal statute: Young v. McLellan, 2005 BCCA 563; Dix v. Canada, 2001 ABQB 256; Munro v. Canada (1992), 11 O.R. (3d) 1 (Ont. Gen. Div.), rev'd on other grounds 16 O.R. (3d) 564 (C.A.).

¶ 53      The CRTC is an unincorporated commission, described in the Financial Administration Act, R.S.C. 1985, c. F-11 as a department that is part of the public service, to which the Minister of Canadian Heritage has been assigned. Its members are appointed by the Governor in Council. There is no federal statute authorizing proceedings to be taken in the name of the CRTC. The Attorney General of Canada therefore submits that the CRTC is clearly within the ambit of s. 23(1) of the Crown Liability and Proceedings Act, and the motion to add the CRTC as a defendant should be dismissed.

¶ 54      In oral argument, counsel for Adbusters submitted that he agrees with the position taken by the Attorney General of Canada, and he invited the court to dismiss Adbusters' motion.

¶ 55      The motion to add the CRTC as a defendant to this action is accordingly dismissed.

¶ 56      Notwithstanding the fact that Adbusters invited the court to dismiss its own motion, it nevertheless seeks special costs against the Crown. It submits that it was required to bring this motion because of the position taken by the Attorney General of Canada at paragraphs 14 and 17 of its statement of defence, that "the CRTC is an independent public authority" and that "the CRTC is alone charged with the regulation and supervision of the Canadian broadcasting system." Adbusters submits that the Attorney General of Canada has now, on this motion, reversed its stance, and this should justify an order for special costs pursuant to the principles in Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740 (B.C.C.A.).

¶ 57      The Attorney General of Canada submits that it has not reversed its stance, but that even if it had, this would not entitle Adbusters to an order for special costs: Schryer v. Canada (Attorney General) (2001), 86 B.C.L.R. (3d) 149 (S.C.).

¶ 58      The Attorney General of Canada also points out that there remains outstanding an issue as to whether any claim in respect of the conduct of the CRTC should be brought in the Federal Court rather than this court.

¶ 59      Adbusters has not persuaded me that there should be an order for costs in its favour, when it conceded that its own motion should be dismissed. However, given the unusual circumstances that led to its bringing the motion, I shall not award costs to Crown. Both Adbusters and the Attorney General of Canada shall bear their own costs of this motion.

W. EHRCKE J.

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