Moot 1

Moot # 1 - The Green Party v. The Kingston
Broadcasting Corporation

COURT OF APPEAL FOR KINGSTON

The Green Party

Appellant

The Kingston Broadcasting Corporation

Respondent

File No.: K28122

October 21, 2007

Present: Donaldson, Singh and Wilson JJ.A.

ON APPEAL FROM THE KINGSTON SUPERIOR COURT OF JUSTICE

DONALDSON J.A. (for the Court) –

[1] This is an appeal from the decision of Forly J. of the Superior Court of Justice on October 12, 2006. Her Honour dismissed the Appellant's application for a s. 24 remedy against the Respondent Kingston Broadcasting Corporation and its election programming policies based on an infringement of s. 2(b) of the Charter. Further, according to her, even if there were a Charter infringement, any violation was saved under s. 1 of the Charter.

[2] The Respondent, the Kingston Broadcasting Corporation, is a corporation established under statute, the Kingston Broadcasting Corporation Act, R.S.K. 1985, c. K.1. It operates a radio station and a television station in Kingston. Although there are three other radio stations in the Kingston area, the Respondent operates the only television station based in Kingston. There are, however, many other television stations available over the air and on local Kingston cable services from neighbouring Canada and the United States and direct broadcast satellite services.

[3] Specific provisions in the Act relating to the Respondent are as follows:

1. In this Act,

"board" shall mean the board of directors of the Corporation;

"corporation" shall mean the Kingston Broadcasting Corporation.

2. (1) A corporation with public share capital, known as the Kingston Broadcasting Corporation, is hereby established and incorporated;

(2) The Business Corporations Act (Ontario) shall apply to the corporation but the provisions of this Act shall prevail in the case of conflict.

3. The purpose of the corporation shall be to provide broadcasting services for the general betterment of all of the people of Kingston and Ontario but to operate as a fiscally prudent company, arms length from the Minister of Communications (Kingston) subject to any applicable statutes and regulations which may be enacted, with a view to

furthering the best interests of its shareholders.

4. The corporation shall be governed and managed by the board.

5. Without limiting the generality of s. 4, the board shall be entitled to:

(a) raise funds in any manner;

(b) hire personnel in order to fulfil the purposes of s. 3;

6. Decisions by the board shall be by majority vote.

7. (1) In cases where a vote of the Board on a resolution, rule, motion or other decision is tied, the tie shall be broken by:

(a) the vote of the Chair; or

(b) if the Chair is absent or abstains, by the combined vote of the members under s. 8(c);

(2) If the tie remains after applying ss. 7(1)(a) and 7(1)(b), the resolution, rule, motion or other decision shall be declared lost.

8. The board shall be comprised of the following:

(a) the chair, who shall chair meetings of the board;

(b) four members, each Vice-Presidents, elected by the shareholders once every year at the annual shareholders' meeting of the company;

(c) four members, appointed by the Minister of Communications (Kingston) within ten days after the annual shareholders' meeting of the company, to serve a one year term.

9. (1) Notwithstanding anything in this Act, the Minister of Communications (Kingston) may appoint the first chair and may appoint a chair for a one-year term if a chair is not elected in accordance with subsection (2).

(2) Thereafter, the chair shall be any resident of Kingston and shall be elected by the remaining members of the board within twenty days after the annual shareholders' meeting of the company, to serve a one-year term.

10. Any rules and by-laws take effect only upon the approval of the Minister of Communications (Kingston).

[5] The evidence shows that the Kingston Government, which currently owns 32.2% of the Respondent's shares, has funded the following proportions of the capital and operating costs of the Respondent since its establishment:

1990-1991 91.5%

1991-1992 86.4%

1992-1993 68.6%

1993-1994 55.0%

1994-1995 41.5%

1995-1996 35.5%

1996-1997 22.2%

1997-1998 22.0%

1998-1999 28.0%

1999-2000 39.4%

2000-2001 42.1%

2001-2002 44.5%

2002-2003 43.7%

2003-2004 47.6%

2004-2005 50.2%

2005-2006 53.4%

2006-2008 67.2%

[6] Section 48 of the Act prohibits the K.B.C. from raising money though the issuance of securities, loans, debentures, etc. Basically advertising and government grants are the only sources of revenue for the K.B.C.

[7] Forly J. found as a fact that the Respondent is an arm's length company with minimal government shareholding. Less than half of the Respondent's capital and operating costs are from government.

[8] The Appellant is a registered political party, in full compliance with the Kingston Elections Act, R.S.K. 1985, c. C.1 and the Kingston electoral commission.

[9] The Appellant has been enjoying increasing success at the polls in Kingston elections:

1995 Kingston election -

Liberal Party of Kingston: 34 seats (43.7% popular vote)

Conservative Party of Kingston: 11 seats (29.7% popular vote)

New Democratic Party of Kingston: 6 seats (20.2% popular vote)

The Green Party: 0 seats (3.4% popular vote)

Others (consisting of six other registered parties):* 0 seats (3.0% popular vote)

1999 Kingston election -

Liberal Party of Kingston: 26 seats (38.5% popular vote)

Conservative Party of Kingston: 18 seats (34.9% popular vote)

New Democratic Party of Kingston: 6 seats (18.7% popular vote)

The Green Party: 1 seat (4.9% popular vote)

Others (consisting of six other registered parties):* 0 seats (3.1% popular vote)

2004 Kingston election -

Liberal Party of Kingston: 22 seats (37.0% popular vote)

Conservative Party of Kingston: 20 seats (37.0% popular vote)

New Democratic Party of Kingston: 6 seats (17.2% popular vote)

The Green Party: 1 seat (6.7% popular vote)

Others (consisting of six other registered parties):* 0 seats (2.1% popular vote)

* - The six parties grouped under "otheers" are the Marxist Leninist Party Of Kingston, the Communist Party of Kingston, the Christian Party of Kingston, the Party For The Elimination Of All Taxes, the Catholic League Party and the Marijuana Party

[10] On October 3, 2008, Premier John Smith, leader of the Liberal Party of Kingston, called a provincial election for December 12, 2008. The campaign has been very hard fought, with all ten registered parties running candidates in all 51 ridings.

[11] On October 4, 2008, the KBC invited the leaders of the Liberal Party of Kingston, the Conservative Party of Kingston, and the New Democratic Party of Kingston to participate in a leaders' debate on December 1, 2008. This would be a three hour debate. A panel of three journalists would ask ten questions on various topics of interest in the campaign and each of the four leaders would have an opportunity to give their answers while answering and debating each other. Each leader would also be entitled to make a 5 minute opening speech and a 5 minute closing speech.

[12] The leader of The Green Party, Graham Fraser, has not been invited to participate. The Programming Policy of the KBC, enacted under s. 32 of the Act, barred the KBC from inviting him. Section 32 provides as follows:

32. The Board of Directors of the Corporation may enact, amend and revoke such policies as are necessary for the Corporation from time to time.

[13] The relevant provisions of the Programming Policy of the KBC, enacted in 1992 before The Green Party was registered in 1994, read as follows:

G. Elections

1. Election coverage shall be fair and balanced and aimed at presenting Kingstonians with as much information as possible in order to permit them an informed electoral choice.

2. This being said, the Corporation must raise funds through advertising for its welfare and advancement and must broadcast a substantial amount of commercial programming, even during the period of an election campaign.

3. In order to provide registered political parties with access to the Kingston electorate, each registered political party is entitled to twenty minutes of free broadcast time which, within the bounds of legality and decency, it may use at any time during the hours of 11 p.m. and 7 a.m. during the period of an election campaign.

4. Without limiting the foregoing, the Corporation may organize a leaders' debate during the period of an election campaign. It may invite all leaders of registered political parties that possess one of the following criteria:

(a) in view of their longstanding nature, the leaders of the Liberal Party of Kingston, the Conservative Party of Kingston and the New Democratic Party of Kingston shall be invited, unless their parties received less than 3.5% of the popular vote in the preceding Kingston general election. The reason for this is to ensure that each of the most popular parties are given enough time to set out meaningful answers to questions asked; too many participants means that the comments of the leaders are terse and uninformative.

(b) the leaders of any other registered parties may be invited if their party received more than 7.0% of the popular vote in the preceding Kingston general election.

[14] No party has ever challenged the policy in court, though The Green Party, by letter from Jamie Hyer to the President of the K.B.C. dated July 5, 1996, did register a non-legal objection to it and urged its amendment.

[15] On October 5, 2008, The Green Party formally objected to the fact that its leader was not invited to the debate and started the application in the Superior Court of Justice, which has led to this appeal. In the affidavit of its leader, Graham Fraser, several facts are set out:

5. The Green Party was founded in 1994 in order to improve Kingston's environment. The three main parties, the Liberal Party of Kingston, the Conservative Party of Kingston and the New Democratic Party of Kingston, have never paid enough attention to the environment. For that reason The Green Party was formed. It has consistently been the only party in Kingston dedicated to the preservation of our natural resources, clean air, land free from spills and clean drinking water.

6. The popularity of The Green Party began to increase shortly after the 2004 election after the Bath Road tire dump fire, which led to the evacuation of 700 residents for a week, and the inadequate response of the ruling Liberal Party.

7. As of August 15, 2008 our internal party polling showed the following levels of support: Liberal Party of Kingston 22%, Conservative Party of Kingston 27%, New Democratic Party of Kingston 19%, The Green Party 27% and others 5%. This poll is based on a sample size of 213 people and is accurate to within plus or minus 3%, 19 of 20 times.

8. The Green Party has purchased 82 minutes of television advertisements on the KBC and, like all others, will be using its ten minute allocation for a free-time political broadcast. The Liberal Party of Kingston and the Conservative Party of Kingston have purchased 78 minutes and 85 minutes, respectively. There are no other commercial slots available before the election is held.

[16] The KBC has only offered in evidence the information about the KBC set out above, its policy, an affidavit affirming the factual statements in the policy and, in para. 36 of that affidavit (of June Griffiths), the fact that in 2004 the election debate, televised by the KBC, was viewed by 70% of the electorate.

[17] The Green Party relies on these facts in support of a claim that the failure of the KBC to invite its leader to the debate constitutes a violation of s. 2(b) of the Charter.

[18] Like Forly J. of the Kingston Superior Court of Justice, I too dismiss the claim. The Green Parry remains free to speak out on the issues in this campaign. No one is censoring it. If it is as popular as it says it is, it can advertise in any media. I note in this regard that the Kingston Elections Act contains no spending restrictions or other restrictions and door-to-door canvassing is also available.

[19] I need not consider whether the KBC is a government entity to which the Charter applies.

[20] Therefore, I dismiss the Appellant's claim with costs.