OTTAWA – The Canadian Association of Broadcasters on Friday filed an application for leave to appeal to the Supreme Court of Canada its payment of Part II licence fees.
The CAB disputes the Federal Court of Appeal decision that overturned a Federal Court Trial Division ruling on the fees.
In December 2006, the Federal Court Trial Division ruled that the CRTC Part II fees collected by the federal government from broadcasters and broadcast distributors were an illegal tax. The government appealed that decision to the Federal Court of Appeal, which found the fees to be a valid regulatory charge and not a tax.
The CAB feels the Part II fees are an illegal tax, since they do not go toward regulating the broadcasting industry, but to the government’s Consolidated Revenue Fund. Private broadcasters also pay Part I fees to cover the costs of the CRTC’s operations.
If granted the leave to appeal, the CAB and the private broadcasters the organization represents say in their filing that they will seek an order declaring the Part II fees levied pursuant to section 11 of the Broadcasting Licence Fee Regulations taxes and, therefore, ultra vires of the CRTC’s power to levy fees. They will also seek an order declaring they are entitled to the return of all Part II fees paid by them between November 30, 1998 and November 30, 2006 inclusive.
The leave to appeal application by the private broadcasters says the Part II licence fees amounted to $679.6 million as of 2005.
The leave to appeal application notes that the Federal Court of Appeal issued three separate judgements which the broadcasters say take opposing approaches to the determination of whether a charge levied to extract economic rent for a privilege [to broadcast] is properly a fee or whether it is a tax.
“The judgments create confusion,” stated the leave to appeal application. “This confusion, if left unaddressed by this court, will affect the assessment of fees charged by every level of government in every province and territory of Canada.”
