I selected ‘The File 1000-121 Affair’ as the publication name for this Substack account for one reason.
There is a case of long-term systemic corruption that is directly related to a file opened a long time ago by officials at the Canadian Radio-television and Telecommunications Commission (CRTC): File 1000-121.
The File 1000-121 Affair implicates federal regulators, media company owners and politicians.
I have expert knowledge about File 1000-121, what was stored in it, and its present value, because I forced CRTC officials to create this particular file.
The systemic corruption’s Achilles’ heel is the unpublished CRTC File 1000-121 decision, made on June 25th, 1996.
I’ve recently started applying a little pressure to this area of vulnerability, and I plan to increase the amount of force being applied.
Why I am addressing this case of government corruption
I am addressing this case of corruption for three primary reasons.
If enough Canadian citizens become aware of The File 1000-121 Affair — and how their financial, legal and democratic rights have been violated by powerful vested interests and public officials — they will finally be in the position to demand fundamental reform.
Canadians deserve to possess this knowledge and are entitled to have this power, as it is their democratic right.
Information about the File 1000-121 Affair is available on onemedialaw.com, including a copy of a letter that I sent to Justin Trudeau, while he was prime minister.
There is also a copy of another letter on the same website, sent to Mr. Trudeau by Professor Patrick W. Corrigan — a world-leading authority on the stigma of mental illness who is based in Chicago.
In that letter, Professor Corrigan states that knowledge of my story will help people experiencing mental health problems and their families.
If you choose to initiate an investigation into the company subsidy scheme as requested by Mr. Mahar, there will inevitably be media coverage of his public interest campaign to address the issue, including his personal experience of severe mental illness and recovery. Knowledge of Mr. Mahar’s story will serve to challenge the stigma of mental illness, raise awareness of recovery, and inspire hope for people with mental health problems and their families.1
I hope to help people by sharing my story of experiencing severe mental illness in Canada and recovery in Australia.
However, my story simply cannot be understood without knowledge about the File 1000-121 Affair.
Finally, this case of systemic corruption has cost me, and those closest to me, a higher cost than anyone else.
In fact, it almost cost me my life.
I want justice.
Corruption and regulatory capture
25 years ago, Professor Matthew Fraser stated that the CRTC had been totally captured by corporate interests, and that the quasi-judicial tribunal is corrupt.
According to the theory of “regulatory capture,” bodies such as the CRTC go through successive stages toward their inevitable corruption. In their infancy, regulators show youthful activism. By middle age, they have succumbed to subtle co-option by industry interests. In their final stages of bureaucratic senility, they degenerate into passive instruments of the corporate interests under their purview.
It would take formidable powers of self-delusion to deny that the CRTC’s evolution has followed the capture theory with alarming fidelity. Created in 1968, the commission was already slipping into complicity with industry interests by the late 1970s. A decade later, it was totally captured. This was especially true in broadcasting.2
I started my corporate broadcasting career in 1987, in a role that required me to gain specialist knowledge about cable television regulations enacted by the CRTC.
It is a matter of record that I was aware that the CRTC was corrupt 5 years before Professor Fraser’s statement, as demonstrated by information Peter Kent reported on Global Television.
A Toronto man plans to widen his crusade against some of the most powerful vested interests in Canada.
Keith Mahar, says the cable TV industry is overcharging Canadian consumers, hundreds of millions of dollars.
And he is taking the largest cable company and the CRTC to court.
The cable industry claims that Mahar is a crank, with no case. But as Sean Mallen reports, Mahar has made believers of some Members of Parliament.3
Three months after that news broadcast, I forced the CRTC to open File 1000-121, as addressed below.
Six months after File 1000-121 was opened, I was diagnosed with bipolar disorder.
11 years later, The Toronto Star published Antonia Zerbisias’ column TV fund money really belongs to us.
One lone activist is lobbying to get your money back. He is ex-Toronto cable-broadcast manager Keith Mahar who made a name for himself in 1994. He fought with a passion against the cable companies and the CRTC for citizen/consumer rights - and his fervour cost him his career as well as his emotional and mental health.
An activist David against the media Goliaths, he didn’t have a chance against the all-powerful cable monopolies and their allies in Ottawa.
Now he lives in Canberra, Australia, where he is a social worker and mental health advocate.4
Micro-campaigns to generate paper trail
In reality, I wasn’t simply trying to get refunds for Canadians.
There was a bigger objective.
As addressed in my 2007 university paper — titled “budge” — I adopted a strategy to generate a paper trail and additional evidence into the case of systemic corruption “to raise awareness of structural deficiencies in the Canadian political system”.
budge is a social development initiative being designed to raise awareness of structural deficiencies in the Canadian political system. An unreported case of systemic corruption involving senior politicians, officials at the federal broadcasting authority (CRTC) and media companies; corruption designed to transfer wealth from citizens to influential corporate shareholders, which I actively opposed during 1995-06. … The case serves to illustrate how Canadian citizens are oppressed by a system which is unduly influenced by corporate leaders.
…I will still act as a direct activist, but only when good opportunities present themselves, and where the potential value warrants the time, effort and risk. Moreover, I will focus on short-term micro-campaigns which will also leave a paper trail for purposes of accountability and opportunities for action research.5
Since that time, I’ve been able to generate sufficient contemporary evidence of wrongdoing to change my strategy, and this post is not part of a “micro-campaign”.
My campaign is now permanent, and relevant facts will be publicly addressed on this Substack account, as well as on onemedialaw.com, LinkedIn (Keith Mahar) and X (@1activist).
Powers of the CRTC
The Broadcasting Act grants extensive statutory authority to the officials appointed by the Canadian prime minister to the CRTC.
For example, the CRTC has the same powers as a superior court to conduct its hearings.
The Commission has, in respect of any hearing under this Part, with regard to the attendance, swearing and examination of witnesses at the hearing, the production and inspection of documents, the enforcement of its orders, the entry and inspection of property and other matters necessary or proper in relation to the hearing, all such powers, rights and privileges as are vested in a superior court of record.6
Furthermore, the unelected officials at the CRTC are entrusted with the power to determine questions of fact or law.
The Commission has authority to determine questions of fact or law in relation to any matter within its jurisdiction under this Act.7
Decisions subject to review by Federal Court of Appeal
As a safeguard, CRTC decisions are subject to review by the Federal Court of Appeal.
For example, this is exactly what is currently being done in relation to the CRTC ordering U.S. online streaming companies to contribute 5% of their Canadian revenue to subsidize the operations of Canadian media companies.
This is key to understand in relation to the File 1000-121 Affair: CRTC decisions on questions of law, or questions of jurisdiction, can be determined to be incorrect, and overturned by the Federal Court of Appeal.
An appeal lies from a decision or order of the Commission to the Federal Court of Appeal on a question of law or a question of jurisdiction if leave therefor is obtained from that Court on application made within one month after the making of the decision or order sought to be appealed from or within such further time as that Court under special circumstances allows.8
After all, regulations enacted by the CRTC are subordinate legislation.
Since regulations do not benefit from scrutiny by elected representatives in Parliament, there is always a risk of these unelected officials abusing the power of the state.
Which is precisely what has occurred at the CRTC — for three decades.
Regulation 18(6.3)
CRTC officials abused the power of the state in order to financially benefit powerful vested interests.
These same officials then effectively evaded the authority of the Federal Court of Appeal to review the legality of CRTC actions related to a highly unorthodox regulation enacted in 1994 — subsection 18(6.3) of the Cable Television Regulations, 1986 — hereinafter referred to as “Regulation 18(6.3).”
Regulation 18(6.3) was enacted by the CRTC after cable-TV companies offered to ‘voluntarily donate’ up to $100 million to establish a Canadian content (CanCon) fund.
This $100 million offer was made on 5 February 1993, in a written submission to the CRTC by the Canadian Cable Television Association (CCTA).
The CCTA recognizes from reviewing the submissions filed with the CRTC on December 4 and from its consultation efforts, that complimentary measures may be required to support the development of Canadian programming.
Therefore members of the Canadian cable industry are prepared to commit to an industry initiative to provide new financing of up to $100 million over a five-year period to support particular Canadian programming initiatives.9
The offer’s appearance of philanthropy was deceptive.
It became evident at a subsequent CRTC hearing that the $100 million dollar offer was entirely conditional upon CRTC officials changing regulations — changes to allow the cable-TV companies to collect more than $1 billion from Canadian consumers over the same 5-year period.
Keith Spicer, CRTC Chairman at the time, stated that he supported the outrageous concept — one to permit millions of Canadians to be overcharged for monopoly cable-TV service and fostering unfair competition in return for voluntary donations to a CanCon initiative — but he wanted more than $100 million for the private television production companies in return for the proposed regulatory changes.
Mr. Spicer — who called former prime minister Pierre Elliot Trudeau his “lifetime friend and inspiration” in his memoir— described the regulatory quid pro quo as a “useful” and “exciting path” for the industry to consider.
First we saw $100 million and then we found out very quickly it was over five years. It was only up to $100 million. We learned yesterday it’s voluntary. ...
Still, we haven’t got money on the table, numbers on the table that we can count on. I don’t think you would ever sign a business deal in which the other guy had to give you $100 million but on a voluntary basis.
You are asking us to soak -- well, let’s say to invite the Canadian subscribers to come up with quite a lot of money for your industry to build an infrastructure which would be used no doubt to defend Canadian programming, but also down the road five years a whole lot of other services that have nothing to do with what normal people call television what with home shopping, banking, and things in which the industry will make some honest money, and good for them. But we should know what we are asking these people to pay for.
It seems to me the quid pro quo is not as firm as the demand you are making upon the subscriber. Your industry wants the subscribers commitment to the industry to be absolutely firm and to come right off their cable bill. They probably won’t even notice it. But the industry’s commitment to the subscriber and to Canada and to the creative community, which will be the immediate beneficiary, is very shaky.
We have to take that into account. If there is anything you can do within the industry to firm up that commitment, that major quid pro quo which I say in the name of my colleagues, we find extremely promising. It’s a new door that you have opened. We think it is a very useful and exciting path for the industry to consider. But if we are going to really consider this range of proposals you are putting forward, that among other things would have to be firmed up very considerably. [emphasis added]10
The CRTC subsequently proposed to enact Regulation 18(6.3).
Regulation 18(6.3) was to permit Canadians to be overcharged by cable-TV companies by $600 million over the first five-year-period.
The largest cable-TV companies — controlled by some of the wealthiest businessmen in Canada — were to be permitted to overcharge millions of Canadians each month for their monopoly service, as long as 50% of the premium ($300 million in the first five-year-period) was voluntarily transferred to a new fund designed to subsidize the operations of private television production companies.
Furthermore, because the cost was going to artificially inflate the monthly cost of cable-TV, consumers were actually going to have to pay approximately $100 in government taxes (GST and PST) on top of the $600 million.
$700 million to get only $300 million for the CanCon initiative — a grossly inefficient method to funnel funds to its purported purpose.
Regulation 18(6.3) opposed by three CRTC commissioners
To their credit, three CRTC Commissioners — David Colville, Beverley Oda and Rob Gordon —tried to stop Regulation 18(6.3) from being enacted in the first place.
We are opposed to the majority decision to allow for the elimination of the subscriber rate reduction (sunset) provisions for capital expenditures (CAPEX). We cannot accept breaking a commitment made to subscribers that the capital expenditure component of their rates would decrease after five years. The value of these rate reductions would have been up to $85 million beginning in 1995, totalling approximately $600 million for the period 1995-1999. These funds, which were intended to be returned to subscribers as rate reductions, will flow instead half to cable operators and half to Canadian program production.11
In their dissenting opinion, these Commissions stated that evidence had not been provided to establish that there was a need for increased funding for CanCon, the cost of Regulation 18(6.3) to Canadians was going to be inequitable, and the cable-TV companies had not demonstrated that they required the $300 million for any legitimate purpose.
Importantly, the Commissioners addressed that Regulation 18(6.3) was to unjustly enrich the cable-TV companies, stating that the regulation was to permit “the cable operator to retain 50% of the intended subscriber rate reduction, a source of revenue not based on economic need or tied to a minimum level of profitability.”
They concluded their dissenting opinion by stating: “Cable rates should be justified on their own merits, not used as a lever to extract revenues for other purposes.” [emphasis added]12
Regulation 18(6.3) was, in effect, to be a hidden, illegitimate and highly inefficient tax serving two covert purposes: forcing millions of Canadians to unjust enrich cable-TV companies and subsidize the operations of private television production companies.
Regulation 18(6.3) opposed by CanCon advocacy group
To help put Regulation 18 (6.3) into perspective, Friends of Canadian Broadcasting — a group strongly advocating for CanCon funding — blasted the proposed enactment of Regulation 18(6.3) as an unethical and deceptive ‘tax’, while questioning the legal authority of the CRTC to both enact the regulation and facilitate the dispersement of the money collected from Canadian consumers to such a production fund.
Friends of Canadian Broadcasting considers the Commission’s proposal a breach of faith with seven million Canadian households. If properly understood by consumers, the proposed action will fan general mistrust of an important public institution, thereby threaten public support for broadcast regulation in general, and the public good which that regulator has been designed to contribute.
Along with many other public interest groups, Friends asked the Commission in March 1993 to ensure a contribution from the cable industry’s very substantial profits for such a purpose. Instead the Commission chose to impose a ‘tax’ upon cable subscribers to promote Canadian programming — with the cable monopolies annointed as tax collectors. We have publicly described this stance as one whereby the CRTC is “enabling the industry to pick the pockets of its captive subscribers for this purpose”.
We doubt the Commission’s authority to impose such a tax. We also doubt the Commission’s authority to establish arms-length agencies to collect and dispense subscribers’ funds for production purposes.13
Despite opposition to the inherently flawed wealth redistribution scheme — because it was unethical, unjustified, inequitable, inefficient and unjustly enriched cable-TV companies —Regulation 18(6.3) was enacted in 1994.
To this present day, the CRTC will not identify which officials at the quasi-judicial tribunal actually voted in favour of enacting this regulation, due to the CRTC’s policy with respect to voting secrecy.
Government-regulated fraud
In any event, millions of Canadians started paying the hidden tax on January 1, 1995.
Friends of Canadian Broadcasting had warned that there would be a public backlash against the CRTC “if” Regulation 18(6.3) was “properly understood by consumers”.
CRTC officials made sure that Canadians were not in a position to complain, by manufacturing public ignorance — Edward Herman and Noam Chomsky might have described it as manufacturing consent.
Shockingly, CRTC officials permitted cable-TV companies to collect the Regulation 18(6.3) fees under a false pretence, a deceptive method of tax collection that I have publicly described as “government-regulated fraud”.14
Canadians were informed by the largest cable-TV companies that they were paying the premium to partially pay for equipment that was required to provide basic cable-TV service, a totally different purpose.
Given that I was formerly employed in the broadcasting industry for my knowledge of the cable-TV industry and CRTC regulations, I was not duped.
Shift from activist to whistleblower
It is a matter of public record that in 1994 I publicly campaigned against the takeover of Maclean Hunter Limited by Rogers Communications Inc. (Rogers), as I did not consider the takeover to be in the public interest.
In the process of opposing that $3.1 billion takeover I reviewed a number of CRTC decisions, and determined that the federal regulator was abusing its authority over setting cable-TV and telephone rates, by forcing unwitting Canadians to subsidize privileged companies to enter the digital age.
Rogers was the major beneficiary of the CRTC decisions.
I blew the whistle on the scheme, including by writing an Op-Ed published in The Toronto Star, calling for an investigation into the undisclosed corporate agenda by CRTC officials.15
This Op-Ed is reproduced on my prior post (CRTC Forces Public to Pay For Building Information Highway), including my reasons why the scheme warranted an investigation.
There are three fundamental objections to the CRTC agenda to finance the information highway by permitting customers to be overcharged for services.
First, this tax is invisible to consumers. Canadians should not be exposed to such a deceptive method of taxation.
Second, Canadians are not the direct beneficiaries of their own taxation. We are being charged inflated prices by companies protected from competition to pay for an infrastructure that will be owned by these same business interests. This action results in a direct transfer of wealth from the public to these privileged corporations.
Third, Members of Parliament have not been informed fully of the CRTC's information highway agenda. As a result, it never has been debated in the House of Commons, and Canadians remain unaware of the subject matter. Therefore, no elected official is accountable for the tax, its cost, its regressive nature or its beneficiaries.
Since MPs do not know about this new tax, they cannot protect our financial interests, resulting in "taxation without representation" and undermining democracy.
Canadians should demand a full investigation into the CRTC agenda from their Members of Parliament.16
Legal opinions about Regulation 18(5) and Regulations 18(6.3)
In order to make it easier for journalists to understand the issue, and effectively inform Canadians how they were being exploited, I made the decision to focus on two specific CRTC regulations to start the ball rolling.
To that end, I requested two lawyers — Christopher K. Leafloor in Toronto and Neil Milton in Ottawa — to provide legal opinions on Regulation 18(6.3) and another regulation enacted by the CRTC, which will be referred to as “Regulation 18(5)”.
Regulation 18(5) was to permit cable-TV companies to charge basic cable subscribe a total of $500 million, for equipment required for telecommunications, not required for basic cable service.
Mr. Leafloor’s opinion was that there were “good reasons to conclude that the CRTC exceeded its legal mandate” when Regulations 18(5) and 18(6.3) were enacted.
Specifically, it was Mr. Leafloor’s opinion that the CRTC probably did not have legal jurisdiction — under the Broadcasting Act — to enact either of the regulations.
Furthermore, the lawyer also concluded that cable subscribers were owed refunds by the companies, which had not notified subscribers about Regulation 18(6.3) and its monthly cost.
As will be explained in more detail below, I have concluded that there are good reasons to believe that the CRTC exceeded its legal mandate when it made these particular amendments to the Regulations. A brief summary of these reasons follows. These amendments were enacted under the authority of the Broadcasting Act, and thus they must concern matters that are within the jurisdiction of the Broadcasting Act. But these amendments deal with issues that concern telecommunications, which is a matter that is beyond the jurisdiction of the Broadcasting Act. Thus, these amendments are ultra vires.
Consequently, if these regulations were to be challenged in the Federal Court of Appeal, the Court may be persuaded to rule that these aspects of these regulations are of no force and effect.
Furthermore, I have concluded that when a cable television company invokes subsection 18 (6.3) as justification for not reducing its basic monthly fee, at that point the notice provisions in subsection 18 (8) must be satisfied. It appears, however, that the cable television stations did not comply with these notice provisions when they invoked subsection 18 (6.3) earlier this year. Thus the cable television companies were not entitled at that time to avoid reducing their fees through the means of subsection 18 (6.3) of the Regulations. If this matter were brought before the CRTC, the CRTC should order the cable television companies to send to its customers refunds for these fees that were inappropriately charged to subscribers since Jan. 1, 1995.17
Similarly, Mr. Milton concluded that the legality of both CRTC regulations were “in serious doubt.”.
You asked me to comment on the legality of three related decisions of the CRTC which have a significant impact on cable rates. I have concluded that there are some very credible arguments you can make which put the legality of these decisions in serious doubt. Moreover, based on the track record established by these three decisions, it would be fair to conclude more broadly that cable subscribers will have to be more vigilant to look out for their own financial interests; neither the CRTC nor governments have so far. In particular, there are some structural inadequacies in the current regulatory regime, and as a result cable subscribers are not thoroughly consulted before new levies are imposed on them. Apparently unbeknownst to most cable consumers, in January they started financing Canadian content initiatives on a massive scale, and the risk of them being used to bankroll the creation of a privately owned information highway is very real. If cable is to become an important tool of public policy for the development of an infrastructure for the exchange of information, then the CRTC’s regulatory regime should be changed to take consumer protection into account.18
On 29 March 1995, Mr. Leafloor, Mr. Milton and I were joined by three Members of Parliament — all members of the Standing Committee on Canadian Heritage — along with Duff Conacher from Democracy, in the Charles Lynch Press Gallery on Parliament Hill, where we addressed Regulations 18(5) and18(6.3).
Dan McTeague (Liberal), Simon de Jong (NDP), Jan Brown (Reform) and I called on the Chrétien government to initiate an investigation into the affair.
Shortly after our non-partisan press conference ended, the CRTC — a quasi-judicial tribunal with the same powers as a superior court to conduct its hearings — issued a press release containing false and misleading information about the issue.19
I explain the exact nature of the false and misleading information in ‘One Media Law: A case study of regulatory capture, systemic corruption and the Canadian Radio-television and Telecommunications Commission’20 — hereinafter referred to as “One Media Law”.
A copy of One Media Law is posted on onemedialaw.com.
Chrétien government enables wealth redistribution scheme
The morning after our Parliament Hill press conference, I was a guest on Canada AM, a national morning television program aired on CTV at the time.
CRTC and industry representatives were also invited to come on the program by a Canada AM producer, but they refused to appear on the program.
Later that day, MP Brown raised Regulation 18(5) and Regulation 18(6.3) in Parliament, directing questions to Prime Minister Chrétien. (YouT
Despite being in Parliament, the prime minister did not answer the questions, he let the Secretary of State — the Hon. Sheila Finestone — effectively deflect the questions.
Mrs. Jan Brown (Calgary Southeast, Ref.): Mr. Speaker, my question is for the Prime Minister.
On January 1, 1995 the CRTC launched an innovative tax grab on Canadian cable subscribers. It ignored its previous decision to issue a rebate to consumers which would have caused cable rates to decrease. Instead, half of the money will go to line the pockets of cable giants such as Rogers.
Why will the Prime Minister not protect the interests of Canadian consumers by getting rid of this hidden tax?
Hon. Sheila Finestone (Secretary of State (Multiculturalism) (Status of Women), Lib.): Mr. Speaker, I would suggest that the country and the government over time has been very grateful to the CRTC. It has been able to protect the Canadian cultural content of the delivery system through its broadcast system.
The growth of Canadian arts, culture and performers has been a vital part of the responsibilities administered by the CRTC through its vigilance and its application of the rules of the will of the House.
Mrs. Jan Brown (Calgary Southeast, Ref.): Mr. Speaker, my question was very specific. It was specifically focused on the CRTC and the issue of the current innovative tax grab, as I say. However I appreciate the eloquence of the hon. member.
The CRTC has flip-flopped on the consumer rebate. It has not only imposed an information highway tax but it has also required these companies to pay into a Canadian program production fund. This is nothing more than a tax to subsidize Canadian content. Consumers will no longer stand for this behaviour from the CRTC.
How can the Prime Minister justify this tax without having consulted the Canadian consumer?
Hon. Sheila Finestone (Secretary of State (Multiculturalism) (Status of Women), Lib.): Mr. Speaker, the hon. member should think through the outcome of her observations and her direction. It would mean that a worthy and considerate member of the ministry would have to resign as a result of interference in an arm's length organization.21
At that point, it was obvious that corporate power had trumped democracy, but I was not willing to drop the matter.
Mahar v. Rogers Cablesystems Ltd.
Knowing that I had clearly hit a nerve, I decided to try to narrow the focus of attention to Regulation 18(6.3), because public knowledge and understanding of that one regulation would inevitably result in an investigation into the regulatory capture of the CRTC.
So I adopted a strategy I called “Leverage and Escalate” with respect to Regulation 18(6.3).
Consequently, with the help of free legal support by Mr. Leafloor and Mr. Milton, I initiated Mahar v. Rogers Cablesystems Ltd. to try to establish the legal right of Canadians to notice about Regulation 18(6.3) and its monthly cost to them.
Lawyer J. Blair Drummie also joined my pro bono legal team.
It was a guerrilla-style tactic.
I sued my own cable-TV company, Rogers Cablesystems Ltd.— a company controlled by Ted Rogers, Canada’s closest equivalent at the time to media mogul Rupert Murdoch — for a refund of the monthly cost of Regulation 18(6.3) to me personally — $2.52.
However, the lawsuit was designed so that the multi-billion-dollar corporation could not simply refund my money. I requested a declaration from the court that the company had broken the law by not providing me with me advance written notice about Regulation 18(6.3) and its monthly cost.
As a result, my case had to be heard in superior court.
The lawsuit was designed to act as a de facto class action case, as such a declaration would establish the legal right of other Canadian consumers to notice about Regulation 18(6.3), and retroactive refunds.
The hidden tax could not be hidden from Canadians if my lawsuit was successful.
Unfortunately for democracy, the corporation won a precedent-setting decision on jurisdiction, and Justice Sharpe dismissed the case without ruling on its merits.
In his ruling on jurisdiction, the judge addressed that a decision by the CRTC on the legal right of Canadian consumers to written notice about Regulation 18(6.3) would be subject to review by the Federal Court of Appeal.
In my view, the task of deciding this case has been specifically assigned by Parliament to the C.R.T.C. The principle established by the case-law, in particular the Shaw case, supra, of the deference due to the decisions of the C.R.T.C. on legal matters within its jurisdiction seems to me significant. It is true that this is not a case where review is sought of the decision of the C.R.T.C. nor is it a collateral attack on such a decision. In some ways, however, the case at bar presents a more serious challenge to the integrity of the regime established by Parliament. If the applicant's submissions were accepted and this court were to decide the case, there would, in effect, be an alternate forum for the determination of an important aspect of the relationship between suppliers of cable services and subscribers. A superior court would be deciding that issue without the benefit of the opinion of the C.R.T.C. Because this is but one of ten provincial superior courts the spectre of various approaches from various provincial courts is raised. Assumption of jurisdiction by this court would not only evade the C.R.T.C., it would also remove the case from the authority of the Federal Court of Appeal which is mandated to review the C.R.T.C. The net result would be to disrupt the scheme envisaged by Parliament for the interpretation of the regulations, a scheme which includes scrutiny by a court exercising jurisdiction akin to that of a superior court.
Days later, Justice Sharpe made a precedent-setting decision on costs in my favour.
The superior court judge designated me as a public interest litigant, determining that my case “raised a genuine issue of law of significance to the public at large.”
Counsel for the respondent urges me to make the usual order and require the unsuccessful applicant pay the respondent's party and party costs. The application raised both jurisdictional and substantive issues of some considerable complexity and a substantial amount of preparation was required. Counsel for the respondent submitted a bill of costs in the amount of $55,485, inclusive of disbursements and G.S.T.
It is apparent that the applicant's individual financial interest in this matter is minimal. The applicant was formerly employed in the broadcasting industry, but resigned his managerial position with CHUM Limited in September 1994 to oppose publicly the proposed merger of McLean Hunter Ltd. and Rogers Communications Inc. He formed the group called STOP (Stop The Ongoing Problems) and appeared as a witness before the C.R.T.C. While the material does not indicate that this application was brought by or with the backing of any public interest group, the evidence before me indicates that it was brought by the applicant in pursuit of what he conceives to be the public interest rather than for any personal financial gain. The applicant did submit that the jurisdictional issue should be decided on the basis that the dispute was one between two private parties, but that does not detract from the fact that the application was brought to benefit the broader public interest of cable subscribers. Had I found that the court had jurisdiction, the next matter to be dealt with was the motion to have the application certified as a class action on behalf of all Rogers subscribers. It was suggested in the material that the legal point to be resolved also concerned the subscribers of many other cable services in Canada.
There will always be debate about what is the public interest, but it is fair to characterize this proceeding as a public interest suit. While the ordinary cost rules apply in public interest litigation, those rules do include a discretion to relieve the loser of the burden of paying the winner's costs and that discretion has on occasion been exercised in favour of public interest litigants.
…In my view, it is appropriate in this case to exercise my discretion in favour of the applicant and to make no order as to costs. The issue raised was novel and certainly involved a matter of public interest. While I decided the jurisdictional point against the applicant, I am satisfied that the application was brought in good faith for the genuine purpose of having a point of law of general public interest resolved. It is true that many of the cases in which an unsuccessful public interest litigant has been relieved of the usual cost order have involved suits against the government and the respondent here is a private entity. However, the respondent does enjoy the substantial benefit and protection of a statutory monopoly in the provision of its services to the public, and this application was brought in relation to an important aspect of the terms on which that monopoly is enjoyed. While the targets of public interest litigation are certainly entitled to the protection of the rules of court, it should not be forgotten that those rules include a discretion to relieve the loser of the burden of paying the winner's party and party costs. As observed by Fox, supra, and by the Ontario Law Reform Commission report, supra, public interest litigants are in a different position than parties involved in ordinary civil proceedings. The incentives and disincentives created by costs rules assume that the parties are primarily motivated by the pursuit of their own private and financial interests. An unrelenting application of those rules to public interest litigants will have the result of significantly limiting access to the courts by such litigants. Such a consequence would be undesirable with respect to proceedings such as the present one which was, in my view, brought on a bona fide basis and which raised a genuine issue of law of significance to the public at large.
I should perhaps add that had I ordered the applicant to pay the respondent's costs, the amount claimed in the bill of costs already referred to was reasonable in the circumstances of this case.22
Relieved that Justice Sharpe had saved me more than $55,000, and motivated by the judge determination that the failure of notice about Regulation 18(6.3) raised a genuine issue of law, I discussed a strategy to challenge the case of systemic corruption with Mr. Leafloor.
In order to have a pathway to the Federal Court of Appeal, it was necessary to get the CRTC to make a decision about the legality of Regulation 18(6.3) fees being collected by the cable-TV companies without consumers being notified by the companies about the regulation.
Given the actions by the CRTC officials to date, I was confident that the CRTC would try to cover-up the scheme by ruling that nothing unlawful had occurred. But that would be fine, because it would still provide me with the ability to request the Federal Court of Appeal to review such a decision.
Moreover, since the matter was bound to end up before the Federal Court of Appeal, we decided to address the highly questionable actions of the CRTC itself in the affair at the same time.
File 1000-121 opened by CRTC
One month after Justice Sharpe’s decisions on jurisdiction and costs in Mahar v. Rogers Cablesystems Ltd., I initiated an official complaint to the CRTC.
The complaint — filed as Cable Watch Citizens’ Association (Cable Watch) — alleged that cable-TV companies had broken the law, by not notifying Canadian subscribers about Regulation 18(6.3) and its monthly cost.
In addition, the Cable Watch complaint was expanded and alleged that the CRTC had acted unlawfully by enacting Regulation 18(6.3), because it did not have statutory authority to enact such a regulation.
Furthermore, the Cable Watch complaint alleged that the CRTC had not provided adequate notice to cable subscribers of its intention to enact Regulation 18(6.3), and had failed to properly inform cable subscribers of the cost consequences that would result from the enactment of Regulation 18(6.3).
We also requested that the CRTC order the companies to put the Regulation 18(6.3) fees into a trust fund to facilitate refunds, if warranted.
Finally, the Cable Watch complaint alleged that the CRTC generally did not use the most effective methods to ensure that cable subscribers were fully informed of all CRTC and cable-TV decisions that affected the rates charged to cable subscribers.
Given that more than several million Canadians were paying for Regulation 18(6.3) each month, without their knowledge, the complaint requested that the CRTC hold a public hearing to permit these citizens with an opportunity to represent their financial, legal and democratic rights in the regulatory matter.
The CRTC opened File 1000-121 to manage the complaint and render its decisions on the questions of law and jurisdiction — decisions which would be subject to review by the Federal Court of Appeal, if any parties considered the decisions to be incorrect.
MP Dan McTeague issued a damning news release in support of my complaint and called for an investigation into the “regulatory shell game”.
“The federal government has an obligation to investigate what has occurred between the Canadian Radio-television and Telecommunications Commission (CRTC) and the cable television industry”, said Dan McTeague, M.P., at a press conference where Cable Watch Citizens’ Association announced that it will file a complaint with the CRTC requesting refunds for millions of Canadian cable TV subscribers.
“The CRTC has provided cable companies with a generous financial incentive to act as “tax collectors” for a new Canadian program production fund. The CRTC allowed cable operators to charge subscribers twice as much as they “voluntarily” contribute to the Cable Production Fund. However, cable companies neglected to notify their subscribers about this. This is totally unacceptable. Subscribers have a right to know what they are paying for and to have their interests protected. These rights have been completely ignored”, said McTeague.
“It appears that there was a combined effort by the CRTC and cable TV industry to pull the wool over the eyes of subscribers about the Fund and the bonus provided to those companies who contribute to it. The CRTC also failed to notify Canadians of the hearing where this “tax” was placed on the agenda. Canadians were effectively eliminated from participating in what is suppose to be a public process and had no input in a decision about what was to be done with their money”, added McTeague.
“Parliament did not give the CRTC the authority to introduce this “tax”. It also did not give the CRTC the authority under the Broadcasting Act to regulate cable rates in a manner which enables cable companies to become “tax collectors” for this Fund while keeping half the money they obtained for unspecified purposes. Subscribers are being forced to pay the cable industry $600 million over the next five yaers to provide only $300 million to the Fund. The CRTC could have simply ordered the companies to contribute $300 million to the Fund directly. Moreover, some subscribers are paying 57 times more than others to the Fund. This is a further indication of the unfairness involved”, said McTeague.
“Millions of Canadian cable TV subscribers deserve refunds and the CRTC should be held accountable for their actions in this regulatory shell game”, concluded McTeague.23
MP Simon de Jong also issued a news release that same day, noting that consumers were being denied their rights by the government.
NDP Heritage Critic Simon de Jong called today on the Minister of Canadian Heritage to strengthen the CRTC with consumers and creative advocates. de Jing was responding to the various concerns that broadcasting industry critic Keith Mahar has raised in the past year.
“The matters Mahar has raised have serious implications for cable subscribers and carriers, consumer advocates and government,” says de Jong. “By continuing to pretend that the CRTC -- as it exists -- is meeting contemporary market needs, this government is denying consumers their rights.”24
Two days later, the Public Interest Advocacy Centre (PIAC), urged the Minister of Canadian Heritage for the government to “swiftly take steps to initiate an independent review of Mr. Mahar’s complaints and to take appropriate action if necessary” [emphasis added].
We are in receipt of the complaint filed by Cable Watch, an organization founded by Keith Mahar, a cable subscriber from Ontario.
Mr. Mahar’s complaint sets out a number of allegations concerning the decision made by the CRTC following the Structural Public Hearing for the cable industry in June 1993. These allegations raise issues as to the procedural correctness of the decision which are serious and potentially important for the cable industry as a whole, and cable subscribers.
While we advance no position with respect to the merits of the jurisdictional concerns raised in the complaint, we believe that they are of such importance that the government should to swiftly take steps to initiate an independent review of Mr. Mahar’s complaints and to take appropriate action if necessary.25
The letter by PIAC to the Canadian Heritage Minister was copied to CRTC Chairman Keith Spicer, as well as the Hon. John Manley, Minister of Industry.
Despite PIAC’s request, there was no independent review by the Chrétien government [or any subsequent government].
The Consumers’ Association of Canada (CAC) sent a letter to CRTC Chairman Keith Spicer on 30 January, advocating for a “full review” of the Cable Watch complaint.
On November 28, 1995, Cable Watch filed a compliant pursuant to s. 12 requesting, among other relief, that a public hearing be held concerning the Commission’s authority to add Subsection 18(6.3) to the Cable Television Regulations so as to require subscribers to pay fees to maximize contributions to the Cable Production Fund.
The Consumers’ Association of Canada is inquiring as to the status of Cable Watch’s complaint. The issues raised merit a full review, in CAC’s opinion, and we join with Cable Watch in asking the Commission to respond expeditiously.
Seven months after the Cable Watch complaint was filed, the CRTC had still not rendered its decision related to the jurisdiction of the CRTC and the legality of failing to notify cable subscribers about Regulation 18(6.3).26
On 24 June 1996, The British Columbia Public Interest Advocacy Centre (BC PIAC) notified CRTC Chairman Keith Spicer that it supported a public hearing into the Cable Watch complaint, and voiced its intent to participate in such a hearing.
Please be advised that we are solicitors for the B.C. Old Age Pensioners’ Organization, West End Seniors’ Network, and the Consumers’ Association of Canada (British Columbia Branch).
Our clients believe that the complaint filed by Cable Watch raises significant issues of major concern to Canadian cable subscribers. They fully support Cable Watch’s application for a public hearing into this matter. In the event of such a hearing, they intend to intervene and participate in the proceedings.27
BC PIAC was not permitted by the CRTC to participate in a public process related to the Cable Watch complaint.
Nobody was permitted.
There was no public process.
Despite the complaint that I initiated directly involving the financial, legal and statutory rights of several million Canadians, the CRTC adopted a truly bizarre and biased process that excluded any public participation.
CRTC decision-making process for Cable Watch complaint
After the Cable Watch complaint was filed on November 28th, 1995, and officially date stamped by the CRTC on November 29th, officials at the CRTC sat on the matter for months.
That changed on March 8th, 1996.
On that day, CRTC Chairman Keith Spicer received a fax from The Alliance of Seniors to Protect Canada’s Social Programs — an alliance of 19 organizations representing more than 500,000 Canadians concerned with issues affecting the cultural, political, social and economic health of Canada.
The correspondence addressed the Cable Watch complaint, and was copied to Prime Minister Jean Chrétien, Canadian Heritage Minister Sheila Copps, Industry Minister John Manley, and MP Dan McTeague.
At a time when cuts are being made to essential services for ordinary Canadians, it is totally unacceptable that consumers are being overcharged for basic cable service by their cable companies with the permission of the CRTC.
Please confirm the status of the complaint filed by Cable Watch on November 28, 1995, regarding the collection of fees from basic cable subscribers pursuant to subsection 18(6.3) of the Cable Television Regulations, 1986.
Individual members of teh paying public have a right to know the cost of CRTC public policies. This fundamental democratic, legal and financial right has been completely ignored by both the CRTC and the cable industry in regard to subsection 18(6.3).
The Alliance joins with Cable Watch in calling for all the money collected pursuant to this regulation without proper notice be refunded to cable subscribers immediately. Furthermore, we support the request for the CRTC to hold a public hearing to review this policy because Canadian consumers were never provided with an opportunity to fully participate in the CRTC process prior to the implementation of this public policy: this is not democratic.28
At 3:47pm that same day, the CRTC sent a fax to Richard Stursberg, President of the Canadian Cable Television Association (CCTA) at the time, and Paul Temple, a Vice-President at Rogers Cablesystems Ltd. (Rogers), notifying them both of the Cable Watch complaint, and providing them with a copy.
For some reason, the CRTC wanted to hear from the CCTA and Rogers — but not from the public or any public interest advocacy organization — before it made its decisions on the legal issues.
The Commission has carefully reviewed the contents of Cable Watch’s complaint and has decided that prior to rendering its determination on the significant matters raised in the letter, it should first seek comments from the cable operator originally involved in the litigation process mentioned in Cable Watch’s letter, as well as from the Canadian Cable Television Association (CCTA).
The Commission requests that you provide written comments to Cable Watch that would address all of the matters raised in the letter. Cable Watch will be given ten days to reply to all comments. A copy of the reply should be forwarded to the addressees as well as to the Commission. The Commission will then evaluate those comments and will at that time determine whether any further regulatory action is required. As the Commisison intends to deal with this matter promptly, the response is expected from you within 15 days of receipt of this letter.29
The correspondence was copied to Cable Watch’s legal counsel, as well as Roslie Daly-Todd (CAC).
Importantly, CAC was not permitted to provided with the opportunity to address the matters raised by Cable Watch.
Nor was PIAC, which had urged the government to “swiftly” initiate an independent review, due to the significance of the jurisdictional and other legal issues raised in the complaint.
MP Dan McTeague, MP Simon de Jong, BC PIAC and the Alliance of Seniors to Protect Canada’s Social Programs were also excluded from participating in the quasi-judicial tribunal’s decision-making process, despite their demonstrated interest in the matter.
Only Rogers, CCTA and Cable Watch were granted the privilege of addressing the significant legal issues I had raised.
Since Cable Watch was basically me, with Mr. Leafloor’s free legal support, it was hardly a balanced and legitimate process.
The process was rigged, with a forgone conclusion.
On March 29th, 1996, Paul Temple (Rogers) filed a 7-page submission alleging that the CRTC and cable-TV companies were innocent of any wrongdoing, Canadians had been given all information about Regulation 18(6.3) that they were entitled, and that a public hearing “would not be in the public interest.”
Rogers does not agree with any of these contentions or allegations of Cablewatch [sic]. Rogers believes, moreover, that the public record record of the CRTC proceedings which resulted in the enactment of subsection 18(6.3) of the Regulations, clearly indicates that there is no merit to any of these allegations, and that a further public hearing to enquire into this matter, is certainly not required and would not be in the public interest.30
An hour and a half later, Richard Stursberg (CCTA) filed a 6-page submission alleging that the CRTC and cable-TV companies were innocent of any wrongdoing, Canadians were not legally entitled to any additional information about Regulation 18(6.3), and that my complaint was “without merit” and should be dismissed by the CRTC.
The contentions advanced by [Cable Watch] as a basis for this complaint are without merit. The jurisdiction of the CRTC to add subsection 18(6.3) of the Cable Regulations is clearly established in the Broadcasting Act, and the alleged failures to fulfill various notice requirements are either unsupported by the facts or inexistent for want of any ascertained legal obligation to give notice to begin with. Therefore, it is the view of the CCTA that the CRTC should dismiss [Cable Watch’s] complaint as being without proper foundation.31
Mr. Leafloor subsequently communicated with these parties three more times, including a request for an extension to submit material, and filing a comprehensive submission on May 20th, 1996.
The submission consisted of Part 1: The Nature of the Proceedings; Part 2: The Facts; and Part III: The Issues and the Law.
Given that it was apparent that the CRTC was going to rule itself and corporations innocent of acting unlawfully, Mr. Leafloor and I spent weeks preparing this submission, so that we would be able to have the Federal Court of Appeal review the CRTC’s decisions to the legal matters raised in the Cable Watch complaint.
This 101-page document is posted on onemedialaw.com
Unpublished CRTC File 1000-121 decision
The CRTC made its decision on the legal issues — behind closed doors and without any public process — on 25 June 1996.
The CRTC’s written File 1000-121 decision was mailed to Mr. Leafloor, and signed by Allan J. Darling, then CRTC Secretary General.32
Importantly, the CRTC’s decision — its ruling on its own jurisdiction to enact Regulation 18(6.3); its legal obligations to notify consumers of its intent to enact Regulation 18(6.3); the legal right of millions of consumers to notice by their cable-TV companies that they were paying for Regulation 18(6.3); the legal right of consumers to refunds totalling more than $100 million; and the request by Cable Watch for a public hearing into its complaint to provide ratepayers with an opportunity to represent their interests in Regulation 18(6.3) — was not published.
In its unpublished decision, the CRTC ruled itself and cable-TV companies innocent of acting unlawfully, and that the millions of Canadians paying for the Regulation 18(6.3) scheme were not legally entitled to any more information about Regulation 18(6.3) than had already been provided, and that a public hearing into the matter was not warranted.
The cover-up only worked for one reason.
I was not in a position to have the CRTC’s unpublished File 1000-121 decision reviewed by the Federal Court of Appeal at that time.
As addressed in my chapter (Changing My Mind) in Coming Out Proud to Erase the Stigma of Mental illness, I had been diagnosed the month before with Bipolar Disorder, and was experiencing an existential suicidal crisis when the CRTC made its unpublished decision.
The legal issued that I raised in 1995 remain unanswered to this day because in May 1996 my campaign was rudely interrupted by a life-threatening episode of depression — the first severe depression in my life, at the age of 33. It came on really fast, and hit exceptionally hard. Feelings of courage and hope were replaced by terror, futility and pure misery. One day I found myself on the bedroom floor, curled up in the fetal position struggling to cope with the agony of the moment. That afternoon, I was diagnosed with bipolar disorder and felt ashamed. In addition, I was frightened that I would never be able to work again and my old fear of being poor resurfaced with a vengeance. During that period sleep was extremely difficult and thoughts of suicide dominated my waking hours.33
In fact, my suicidal crisis at that particular time is addressed on the public record, in a report by the House of Representatives Standing Committee on Education and Employment in Australia (Work Wanted: Mental health and workforce participation).
People with mental ill health may internalise the stigma that is circulating throughout the community and workplace that can be reinforced by families and clinicians, forming a negative perception of themselves, with associated low expectations. This is called self-stigma. Mr Keith Mahar, Ambassador, Disability Employment Australia, reported that self-stigma had brought him close to suicide.34
Since the CRTC’s decision was not published, the millions of Canadians unwittingly paying for Regulation 18(6.3) scheme, were not in a position to request the Federal Court of Appeal to review its legality.
However, that was not the end of me, or the File 1000-121 Affair.
Not by a long shot — and billions of dollars.
10 months after Antonia Zerbisias’ February 2007 column in The Toronto Star, I appeared at the World Psychiatric Association International Congress, and conducted a presentation on my recovery from bipolar disorder (A Case of Recovery).
Since that time, I’ve conducted a number of micro-campaigns, generating more documented evidence related to the File 1000-121 Affair.
It is time for a public rematch, which I foreshadowed in E.C.Warner’s 2006 short film The Naked Advocate.
I choose the title myself.
Letter by Patrick W. Corrigan to the Right Honourable Justin Trudeau, Prime Minister of Canada, 22 February 2016, p. 2.
Matthew Fraser (10 June 2000) ‘Let CRTC judges be judged’, National Post, p. D11.
Peter Kent (8 August 1995) First National, Global Television.
Antonia Zerbisias (6 February 2007) ‘TV fund money really belongs to us’, The Toronto Star.
Keith Mahar (12 June 2007) Evaluation of a social development initiative — “budge”. Assignment for Social Work Practice with Communities, Australian Catholic University.
Broadcasting Act. S.C. 1991, c.11. Section 16.
Ibid., Section 17.
Ibid., Section 31(1) (2).
Canadian Cable Television Association. A View to the Future: Step II: Submission to the CRTC Structural Policy Hearing NPH - 1992-13 Canadian Cable Television Association, 5 February 1993.
Official transcript of CRTC public hearing, 4 March 1993, pp. 1153-54.
Dissenting Opinion of Commissioners David Colville, Beverly Oda and Rob Gordon. Public Notice CRTC 1993-74, 3 June 1993, Ottawa.
Ibid.
Friends of Canadian Broadcasting, “Program Fund for Canadian Programming”, CRTC Public Notice 1993-105, 17 September 1993, pp. 1-2.
Keith Mahar (13 June 2008) Canadian Television Fund: A Convenient Deception. Canada Free Press.
Keith Mahar (17 March 1995) ‘CRTC forces public to pay for building information highway’, The Toronto Star, p. A19.
Ibid.
Legal Opinion by Christopher K. Leafloor, 25 March 1995, p.1.
Legal Opinion by Neil Milton, Marusyk Bourassa Milton, 27 March 1995, p. 1.
News Release, CRTC Statement on Allegations of Hidden Tax, CRTC, 29 March 1995, Ottawa.
A copy of the case study is available on www.onemedialaw.com.
Dan McTeague, M.P., 28 November 1995. News Release - ‘$100 million refund being sought for Canadian cable TV subscribers’, Room 481 Confederation Building, House of Commons, Ottawa.
Simon de Jong, M.P., 28 November 1995. News Release - ‘de Jong calls for consumer and creator advocates as CRTC Commissioners’, House of Commons, Ottawa
Letter to the Hon. Michel Dupuy, Minister of Canadian Heritage, by Michael Janigan, Executive Director/General Counsel, Public Interest Advocacy Centre, 30 November 1995, p.1.
Letter to CRTC Chairman Keith Spicer, by Rosalie Daly Todd, Executive Director & Legal Counsel, Consumers’ Association of Canada, ‘Complaint filed by Cable Watch pursuant to s. 12 of the Broadcasting Act’, 30 January 1996.
Letter to CRTC Chairman Keith Spicer, by Jim Quail, Barrister & Solicitor, The British Columbia Public Interest Advocacy Centre, ‘Complaint filed by Cable Watch pursuant to s. 12 of the Broadcasting Act’, 24 June 1996.
Letter sent by telecopier to CRTC Chairman Keith Spicer, by Goldie Leibman, Coordinator, The Alliance of Seniors to Protect Canada’s Social Program, ‘Complaint filed by Cable Watch pursuant to s. 12 of the Broadcasting Act, 8 March 1996.
Allan J. Darling, Secretary General, CRTC, letter sent by facsimile to Paul Temple (Rogers Cablesystems Ltd.) and Richard Stursberg (Canadian Cable Television) Re: Complaint filed by Cable Watch Citizens Association (Cable Watch): File 1000-121. Copied to Christopher K. Leafloor (Cable Watch) and Rosalie Daly-Todd (Consumers’’ Association of Canada). 8 March 1996, p. 2.
Paul J. Temple, Rogers Cablesystems Ltd., to Christopher K. Leafloor (Cable Watch), copied to Allan J. Darling (CRTC), Richard Stursberg (CCTA) and Rosalie Daly-Todd (CAC), 29 March 1996, p.2.
Richard Stursberg, Canadian Cable Television Association, to Christopher K. Leafloor (Cable Watch), copied to Allan J. Darling (CRTC), Paul Temple (Rogers) and Rosalie Daly-Todd (CAC), 29 March 1996, p. 6.
Unpublished CRTC File 1000-121 Decision, signed by Allan J. Darling, CRTC Secretary General, to Christopher K. Leafloor Cable Watch), copied to Rogers, CCTA and CAC.
Keith Mahar (2015) Changing My Mind. In (Eds. Patrick W. Corrigan, Jon E. Larson & Patrick J. Michaels), Coming Out Proud to Erase the Stigma of Mental Illness: Stories and Essays of Solidarity (pp. 410-426), p. 415.
House of Representatives — Standing Committee on Education and Employment (28 June 2012) Work Wanted: Mental health and workforce participation. Parliament of the Commonwealth of Australia, Canberra, p. 19.