The CRTC Ruled on Its Own Conduct. Then Said It Wasn't a Decision
Nine unpublished pages dismissed a consumer complaint, found no statutory or regulatory breach and held the CRTC’s notification procedures adequate.
On January 19, 1996, the CRTC put two prices for basic cable in Newmarket, Ontario, into a letter.
If Rogers contributed to the Cable Production Fund, the monthly rate would be $22.65. If it did not, the rate would be $17.61.
The difference was $5.04.
Under the Commission’s description of the regulation, half of the amount that would otherwise have disappeared from the bill went to the production fund. The cable operator retained the other half.
That small table of possibilities sat near the centre of a dispute that would travel through Parliament, an Ontario court, a formal complaint, an unpublished CRTC determination, a destroyed file and, 12 years later, a public hearing where a commissioner disputed whether the determination was a decision at all.
The surviving record establishes that sequence. It does not establish Keith Mahar’s allegation of systemic corruption, or the later claim that cable subscribers were owed more than $1.2 billion. Those remained allegations. What the documents do show is how the regulator handled a complaint about its own authority and notice practices, and what it told subscribers they were entitled to know.
The Money That Did Not Come From Santa Claus
Subsection 18(6.3) of the Cable Television Regulations, 1986 came into force on January 25, 1994. The CRTC later described it this way: a cable operator could retain half of certain capital-expenditure increases beyond their scheduled expiry if it sent the other half to an independently administered fund for Canadian programming.
The effect was not the same everywhere. The January 1996 CRTC letter showed that Rogers subscribers in Newmarket would pay $5.04 more each month if the company chose to contribute.
The source of that money reached Parliament on March 30, 1995. Mahar told Hansard Files that the exchange came the day after he held a joint Parliament Hill press conference with MPs. In Question Period, Reform MP Jan Brown called the mechanism a hidden tax and asked why consumers had not been consulted. The government’s response defended the CRTC’s role in protecting Canadian cultural content but did not answer whether individual subscribers had received notice.
On May 16, Liberal MP Dan McTeague questioned CRTC chair Keith Spicer before the House of Commons Standing Committee on Canadian Heritage. Spicer said the production fund was intended to steer $300 million to Canadian producers over five years. McTeague asked how cable companies were spending another $300 million they were allowed to retain.
McTeague called the arrangement a hidden tax. Spicer rejected the label. The CRTC had created a system of voluntary contributions, he said, not a tax. The cable companies had a choice.
When McTeague pointed out that the money came from subscribers, Spicer answered: “Every nickel in the broadcasting system comes eventually from ordinary Canadians.”
Spicer also credited Mahar with helping bring the issue before the committee.
The exchange did not settle the legal question. Spicer said the matter would be discussed in court. McTeague replied that Mahar’s case concerned notification, then returned to the question of why subscribers had not received the reduction expected on January 1, 1995.
The Court Points to the CRTC
On October 17, 1995, Justice Robert J. Sharpe ruled in Mahar v. Rogers Cablesystems Ltd. The case concerned whether Rogers had been required to notify subscribers about subsection 18(6.3).
Sharpe did not decide the regulatory issue on its merits. He concluded that it should first go to the CRTC, whose determination could then be taken to the Federal Court of Appeal.
In his decision on costs, Sharpe wrote that Mahar had brought the case on a bona fide basis and that it “raised a genuine issue of law of significance to the public at large.”
The ruling directed the dispute to the regulator. The complaint that became File 1000-121 followed.
On November 28, 1995, lawyer Christopher Leafloor filed that complaint for Cable Watch Citizens’ Association, an organization founded by Mahar. It challenged the CRTC’s authority to enact subsection 18(6.3), alleged inadequate notice to subscribers, and sought refunds, lower rates and a public hearing.
Outside groups supported a closer look. The Public Interest Advocacy Centre took no position on the jurisdictional merits but asked the heritage minister to initiate an independent review. The Consumers’ Association of Canada told the CRTC the issues merited a full review. Three British Columbia organizations, through the B.C. Public Interest Advocacy Centre, supported Cable Watch’s request for a public hearing.
The CRTC did not convene that hearing. Instead, on March 8, 1996, it asked Rogers and the Canadian Cable Television Association to respond in writing. Cable Watch would then have ten days to reply.
The cable association rejected all four elements of the complaint. It argued that the Broadcasting Act gave the CRTC broad authority, that the production fund had emerged from a public process, and that no additional notice to individual subscribers was legally required.
Its rate argument turned on a distinction. Invoking subsection 18(6.3) did not add a new increase to the bill. It kept the monthly fee where it was instead of allowing the scheduled decrease. Because the rate remained unchanged, the association said, no further approval or subscriber notice was warranted.
Cable Watch answered with a 101-page submission. Its argument was that a suspended decrease still changed what subscribers paid. It traced the rate rules, the scheduled expiry of capital charges, the production-fund proposal and the notices sent to customers. It asked again for a public hearing where the evidence and legal arguments could be tested.
The Public Process and the Public
Parliament returned to the notice problem before the CRTC ruled.
On April 25, 1996, MP Jim Abbott quoted a CRTC release headlined “There is absolutely no hidden tax.” He told Spicer that an ordinary cable subscriber would have no idea what the production-fund policy had done to the monthly bill.
“Do the consumers know they are paying that?” Abbott asked.
“Maybe we should spend more time and money telling them this,” Spicer replied.
Abbott then asked the CRTC to show that subscribers had been informed and to direct cable companies to tell customers about their contributions to the fund.
CRTC vice-chair Fernand Bélisle answered that the Commission had issued a public notice, requested comments and held a public process. When Spicer said notice had been given, Bélisle explained, he meant notice to interested parties through that process.
The distinction was now plain. Abbott was asking whether individual subscribers knew. The CRTC was answering that the regulatory process had been public.
Nine Pages Under File 1000-121
On June 25, 1996, the Commission sent Leafloor a nine-page document marked “Our file: 1000-121.”
It sided with the CCTA and Rogers.
The Commission was ruling not only on the conduct of the cable companies, but on the legality of its own regulation and the adequacy of its own notification procedures.
The CRTC concluded that it had authority to enact subsection 18(6.3), had met its statutory notice obligations, and had adequate and effective notification procedures. It was not persuaded that Rogers or another cable company had breached a statutory or regulatory obligation.
On the rate question, the Commission adopted the same distinction advanced by the industry.
Invoking the provision did not increase or decrease the subscriber rate, it said. It “suspend[ed] the decrease in rates that might have otherwise occurred.”
The complaint was dismissed as without merit. The requested public hearing was denied. Cable Watch was invited instead to participate in a broader proceeding on a new approach to regulating broadcasting distribution undertakings.
The document was signed by Secretary General Allan J. Darling. It contained findings, reasons and a conclusion. It was not published as a numbered CRTC decision.
That classification would matter later.
The File Disappears
On January 5, 2006, lawyer Paul Armarego wrote on Mahar’s behalf to Stephen Harper, Gilles Duceppe, Jack Layton and Jim Harris. The letter alleged corruption at the CRTC, identified File 1000-121 and the June 25, 1996 document, and requested political action.
The surviving correspondence does not turn those allegations into findings. It does establish that the file and the document were specifically identified to four federal party leaders.
The following year, CRTC legal counsel Shari Fisher told Mahar what had happened to the official record. File 1000-121 had closed on July 11, 1996. Under the Commission’s document-retention practices, that type of file had to be kept for at least four years. It was destroyed on March 27, 2006, Fisher wrote, well beyond the minimum period.
“No documents related to the file remain,” she added.
The Commission’s Documentation Centre also had no materials referencing Cable Watch or the Cable Watch Citizens’ Association.
Mahar retained copies.
A Decision That Was Not a Decision
Mahar tried again to put the matter before Parliament. At the end of a February 22, 2007, heritage committee meeting, chair Gary Schellenberger said he had already told Mahar there was no room for another witness. He then asked the committee to confirm that its witness hearings were over, saying he did not want to make that decision alone. The committee agreed. MPs supported continuing to accept written submissions, and Schellenberger said the clerk would forward Mahar’s material to the CRTC.
On February 7, 2008, Mahar appeared at a CRTC hearing with the June 1996 document among his materials. He called it a highly unorthodox, unpublished decision and asked for judicial review of the issue.
A member of the CRTC panel objected to the term.
“An unpublished decision is not a decision,” the panel member said. “A decision is not a decision until it is published.”
Mahar replied that he had placed a copy in the record. “Just because it was destroyed doesn’t mean it never existed.”
The exchange left two descriptions of the same nine pages. In 1996, the document said the Commission had considered the submissions, made findings, dismissed a complaint and denied relief. In 2008, the panel said its unpublished status meant it was not a decision.
The next day, NDP MP Libby Davies raised the matter during Question Period. She said more than $1.2 billion was owed to Canadians and called the production fund a hidden tax. Parliamentary Secretary Colin Carrie referred to a competition panel. Parliamentary Secretary Jim Abbott referred to the CRTC hearings then underway.
Neither response adjudicated the refund claim.
Mahar continued asking for an investigation, including in letters sent to Prime Minister Justin Trudeau in 2016. Those letters record the continued request. They do not supply the missing adjudication.
What remains is the paper trail. A regulator created a mechanism that let cable operators avoid scheduled rate reductions if they divided the money with a production fund. An Ontario judge directed a dispute over notice to the CRTC. The Commission considered a complaint about its authority and notice practices through written submissions, denied the requested public hearing, and issued nine pages of reasons that it did not publish as a numbered decision. Ten years later, the file was destroyed under the Commission’s retention practices.
The copies survived outside the file.
Hansard Files reads the records that institutions leave behind, including the ones that never became a published decision. Subscribe to keep that work in your inbox.
Source Documents
Canadian Radio-television and Telecommunications Commission. (1996, January 19). Letter to Keith Mahar concerning information requests.
House of Commons. (1995, March 30). Debates, No. 180.
House of Commons Standing Committee on Canadian Heritage. (1995, May 16). Evidence, Meeting No. 84.
Mahar v. Rogers Cablesystems Ltd., 1995 CanLII 7129 (ON SC).
Leafloor, C. K. (1995, November 28). Complaint filed by Cable Watch Citizens’ Association pursuant to section 12 of the Broadcasting Act.
Public Interest Advocacy Centre. (1995, November 30). Letter to the Minister of Canadian Heritage concerning the Cable Watch complaint.
Canadian Cable Television Association. (1996, March 29). Response to the Cable Watch complaint.
House of Commons Standing Committee on Canadian Heritage. (1996, April 25). Evidence, Meeting No. 6.
Cable Watch Citizens’ Association. (1996, May 20). Submission to the CRTC concerning subsection 18(6.3).
B.C. Public Interest Advocacy Centre. (1996, June 24). Letter supporting a public hearing into the Cable Watch complaint.
Canadian Radio-television and Telecommunications Commission. (1996, June 25). Determination concerning the complaint filed by Cable Watch.
Armarego, P. (2006, January 5). Notice to federal political party leaders concerning File 1000-121.
Canadian Radio-television and Telecommunications Commission. (2007, October 11). Email concerning the destruction of File 1000-121.
House of Commons Standing Committee on Canadian Heritage. (2007, February 22). Evidence, Meeting No. 37.
Canadian Radio-television and Telecommunications Commission. (2008, February 7). Public hearing exchange with Keith Mahar.
House of Commons. (2008, February 8). Debates, No. 047.
Mahar, K. (2016, February 17). Letter to Prime Minister Justin Trudeau requesting an investigation into File 1000-121.