Letter
BY FAX AND EMAIL
Ottawa, 5 May 2010
Mr. Thomas M. Slahta
Kestenberg Siegal Lipkus LLP
65 Granby Street
Toronto, Ontario M5B 1H8
Fax: 416-342-1115
Email: tslahta@ksllaw.com
Dear Mr. Slahta:
Re: CKLN Radio Incorporated
Request for adjournment of the 12 May 2010 CRTC Hearing
___________________________________________________________
The Commission is in receipt of your letter filed on behalf of your client, CKLN Radio Incorporated (CKLN), on 3 May 2010 requesting an adjournment of the CRTC Hearing scheduled for 12 May 2010 regarding CKLN. Please be advised that the Commission denies this request for an adjournment for the reasons that follow.
The Commission is cognizant of the ongoing litigation between CKLN and Mary Young before the Ontario Superior Court of Justice, which is now in judicially assisted mediation. The Commission recognizes that the matters of governance and the legitimacy of the current Board of Directors of CKLN are properly within the jurisdiction of the Ontario Superior Court pursuant to the Canada Corporations Act and accords the Court all due deference in this regard. In light of this, the Commission has not, and does not intend to, make any findings of fact as to the legitimacy of the current Board of Directors.
However, as the body responsible for regulating and supervising the Canadian broadcasting system, the Commission has a duty to ensure that those whom it licenses comply at all times with the Broadcasting Act, its regulations and their conditions of licence. In this case, it is CKLN who is the licensee and not the individuals who make up the Board of Directors. Accordingly, it is CKLN which must be held accountable. In order to hold the licensee accountable, the licensee must be capable of responding to Commission inquiries and complaints and someone must appear on its behalf if it is called to a public hearing. The Commission believes that, in the circumstances, the most recently elected Board of Directors which is currently operating the station is in the best position to respond to the Commission’s compliance concerns on behalf of the licensee.
As indicated in Broadcasting Notice of Consultation CRTC 2010-146 (the Notice of Consultation), it appears to the Commission that CKLN is presently in non-compliance with the Radio Regulations, 1986 (the Radio Regulations) and its conditions of licence. The Commission notes that these issues of non-compliance have existed for over a year. The Commission also notes that the requested adjournment would prevent the Commission from taking action on this matter for at least an additional 6 months. In this context, the Commission considers that adjourning the hearing and allowing CKLN to continue to operate in non-compliance would not be consistent with the Commission’s duty to supervise and regulate the broadcasting system pursuant to the Broadcasting Act.
Moreover, the Commission notes that, while the governance issues may play a role in the inability of the licensee to comply with the Radio Regulations and its conditions of licence, these are not matters which are squarely before the Commission in this hearing. Therefore, the Commission considers that there is no direct overlap between the matters to be discussed at the hearing and those presently before the Ontario Superior Court. For example, the Notice of Consultation refers to non-compliance with provisions of the Radio Regulations which relate to effective control of the licensee and its transmitter. In this instance, the Commission is not concerned with the shift in control between individuals on the Board of Directors within CKLN, but with a shift in control to another entity, namely the Ryerson Student Union / Palin Foundation.
The Commission acknowledges that the judicially assisted mediation is expressly without prejudice and that the participants cannot disclose the substance of their discussions. The Commission will take this into account when assessing the record of the hearing for the purpose of making its determinations. Where the representatives of CKLN who appear at the hearing are unable to respond to the Commission or to an intervener as the response would require them to disclose the substance of discussions in the ongoing judicial mediation, the Commission requests that they simply indicate this on the record. However, the Commission does expect CKLN to make every effort to respond to its inquiries regarding non-compliance with the Radio Regulations and its conditions of licence, it’s ability to be accountable to the Commission for this compliance going forward, as well as the possibilities of the issuance of mandatory orders, suspension and revocation as set out in the Notice of Consultation.
A copy of this letter and your request will be placed on the public record for the 12 May 2010 public hearing.
Yours sincerely,
Original signed by
John Keogh for/
Robert A.Morin
Secretary General- Date modified: