June 4, 2013 By: Sean T. McGee
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On May 28, 2013, the Canadian Radio-television Telecommunications Commission (CRTC) released Broadcasting Decision CRTC 2013-263, in which it explored the reduction in local francophone programming levels for a radio station in Windsor. In renewing the station's license for five years, the CRTC imposed the condition that additional local programming be added to the schedule, reversing a trend of cutbacks to vital French radio programming in Canada over the past few years. For several years, lawyers Sean McGee and Danielle Leon Foun Lin of Nelligan O'Brien Payne have been representing SOS CBEF, a local francophone community group formed to fight the reduction.

CBEF Windsor, the radio station involved in this case, is part of the Radio Canada's French-language radio network Première Chaîne, and has been in operation for over 40 years. It is important to the Windsor community because it is the only radio station available to deliver francophone programming to a large area in Essex County. Major national cuts made by the Radio-Canada in 2009 in reaction to parliamentary appropriations led to the decision to significantly reduce CBEF Windsor's local French language programming. Windsor is at a unique disadvantage in maintaining its francophone culture because of its proximity to the U.S. border, and the decision had a significant negative impact on South Western Ontario's francophone community. Save Our Station CBEF (S.O.S. CBEF) is a community based group that was formed to ensure a local voice for francophones in the Windsor affected by the 2009 Radio Canada decision to reduce CBEF's local programming. The group is very pleased with this victory.

Lawyers Sean McGee and Danielle Leon Foun Lin of Nelligan O'Brien Payne have been working for SOS CBEF, to help them prepare and fight the French language Radio-Canada programming cuts in Windsor. According to Sean McGee,

"This was the last stage of a number of cutbacks that ignored the need to reflect the local francophone community in the media. The French-language minority community should have access to the tools it needs to ensure its survival. The elimination of local programming in Windsor undermined the ability of this community to protect its future."

In 2009, the Official Languages Commissioner, Graham Fraser, whose mandate is to protect the rights of official language minorities across Canada, investigated over 800 complaints from the public related to Radio-Canada's decision. The Commissioner concluded that Radio-Canada had not fulfilled its obligations under Part VII of the Official Languages Act, which requires that all federal institutions take active measures to support the development and vitality of official language minority communities. This was because it had failed to consult the French-speaking community in southwestern Ontario before making the cuts to CBEF Windsor's programming, and had not considered, or done anything to mitigate, the adverse impact of its decision on the community.

In August 2010, the Commissioner of Official Languages and a member of SOS CBEF filed an application in Federal Court of Canada to challenge the cuts to French language programming that Radio-Canada had made in the Windsor area. An interim decision in Canada (Commissioner of Official Languages) v. Radio-Canada, was released by the Federal Court in late May, 2012. In its decision, the Federal Court acknowledged the Commissioner's authority to investigate complaints about Radio-Canada, including those regarding its national and regional programming. The Court found that the CRTC had concurrent responsibility to address questions that resulted from programming cuts at CBEF Windsor, and was better placed to decide the issues at hand because of the imminent Radio-Canada renewal proceeding. The Court ordered the CRTC to take the impact of the Corporation's 2009 budget cuts on the regional Francophone community into account in the proceeding, and suspended its file pending the proceeding's completion.

The CRTC released Broadcasting Decision CRTC 2013-263, on May 28, 2013 in which it explored the reduction in local francophone programming levels for CBEF Windsor. In renewing the CBEF's license for five years, the CRTC imposed the condition that an additional five hours of local programming be added to the schedule, increasing local French-language programming from 10 hours to 15 hours for CBEF Windsor. The CRTC stated that 10 hours of local programming was not sufficient to properly serve the francophone community in South-western Ontario. The CRTC considered Radio-Canada's mandate as set out in Section 3(1)(m)(iv) of the Broadcasting Act includes making programming available in English and French, reflecting the different needs and circumstances of each official language community, including the particular needs and circumstances of linguistic minorities. It also considered the level of local programming that Radio-Canada proposed for stations that operate as part of the Première Chaîne network. The CRTC also noted that Radio-Canada's radio networks play a valuable role in increasing the diversity of radio programming available to Canadian listeners.

Click here to view the full decision, and refer to paragraphs 257 to 267, as well as Paragraph 15 of Appendix 4 to the decision.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law