TORONTO and GATINEAU – The way CRTC chairman Jean-Pierre Blais has consolidated power in his office – trying to tell commissioners when and where they can speak and what they can say – runs counter to everything it means to be a CRTC commissioner, says a 57-page affidavit Ontario regional commissioner Raj Shoan has filed with the Federal Court of Canada in support of his application for a judicial review of Blais.
As Cartt.ca reported in April, Shoan filed an application for a judicial review after an internal CRTC investigation, performed by a third party, found Shoan harassed CRTC’s executive director, communications and external relations Amanda Cliff via email over several months. The harassment complaint, however, came after an email exchange during the CRTC’s crucial Let’s Talk TV hearing which left Cliff in tears, according to the 350 pages of documents filed by Shoan this week, which includes the email threads in question and the evidence gathered by the investigator, including witness statements from staff and fellow commissioners.
The affidavit reveals a work environment gone “toxic” with Shoan fighting for his complete independence as a commissioner in the face of the constraints placed upon him by the Commission bureaucracy when it comes to its public messaging – and resources staff are able to commit to his chosen speaking engagements. (The documents also convey minor annoyances too, from Shoan’s past habit of bouncing a ball during video conference calls to how some staffers thought he wore an overly tight shirt and imbibed too much at an CRTC Christmas party.)
The affidavit reveals Shoan felt increasingly frustrated by the fact most Commission decisions were being made by chairman Blais’ committee of direct reports (Blais is not just a commissioner, however, he is also the chief executive officer) – decisions Shoan feels wrongly restricts him from fulfilling his duties as an appointee of the Governor-In-Council. Essentially, while commissioners are not CRTC employees, they rely heavily on those employees to do their jobs.
All is not right under chairman Blais, in Shoan’s assessment. “In my role as Commissioner, I observed that changes – some subtle, others far more alarming – had been made to the governance structure of the CRTC. In my view, those changes threatened, in a meaningful way, the ability of all Commissioners to operate in an independent manner and to serve their regions in a comprehensive manner. I challenged these changes. I questioned their purpose,” reads the affidavit.
The case churns primarily on seven email threads between Shoan and Cliff, sometimes copied to others, with the most contentious issue being control over domestic speaking engagements. The affidavit reveals Shoan believes it is up to him to decide where and when he speaks and no one disputes that. What bothers Shoan is that Cliff, under the direction of Blais’ office, now decides whether or not staff will be assigned to help research and write speeches – based on whether staff approves of the content or believes there is strategic value to speaking at certain events, or whether there could be a conflict of interest or perceived one. This is detailed in the emails filed with Shoan’s affidavit.
Shoan insists the email threads that fuelled the harassment complaint were not meant to undermine or threaten Cliff, but just plain speaking. “In each exchange, the purpose was only to restore and/or protect the independence of Commissioners which, in my view, had been degraded and infringed by decisions of the Chairperson and actions of CRTC staffers,” reads the court filing.
THE PROBLEMS BEGAN in February 2014 when the CRTC released its Let’s Talk TV Choicebook, where the Commission created a number of fictional scenarios surrounding Canadian TV consumers and asked Canadians to comment on them. Shoan said in the affidavit he was contacted by Blue Ant CEO Raja Khanna who asked why so many of the names used for the fictional characters did not exactly reflect the cultural diversity of Canada.
Shoan says in the affidavit he never received an adequate answer to his emailed question to Cliff asking how the names were chosen and was later told by Blais to drop the matter and “move on.”
Then, that spring, in a Full-time Commissioner Meeting, Shoan’s affidavit details a presentation by CRTC senior counsel Christianne Laizner where she told commissioners they “should voluntarily subject themselves to an approval process for stakeholder meetings and speaking engagements before receiving staff support. Furthermore, the proposal vested in the office of the Chairperson the ability to unilaterally decide when a Commissioner was ‘permitted’ to attend an event,” reads the affidavit.
Shoan’s filing says he, commissioner Candice Molnar and vice-chair Peter Menzies all objected to such a change in how and what they chose to say.
Soon after, Shoan alleges, he was denied staff resources for a speech to the SMPTE in Toronto and had another one, to the National Conference of the Broadcast Educators Association of Canada in May 2014 “censored” before it was posted to the CRTC web site. Cliff, reads the affidavit, told Shoan “only speeches that had been ‘approved’ were posted on the CRTC website. I understood that the ‘approval’ that she was referring to was that of the Chairperson.”
In that speech, Shoan said he felt Canadian broadcasters had been caught “flatfooted” by Netflix – but that portion of his speech was not included in the text posted to the CRTC site. Once again, the court filing shows emails from Shoan questioning “the legislative or policy authority validating the Chairperson’s role as gatekeeper of the CRTC website,” reads the affidavit.
Finally, when Cliff was moving forward to implement the changes to the speaking engagements processes for commissioners, during the third week of September of 2014 (or right in the middle of the Let’s Talk TV public hearing) and Shoan believed he still had not received an acceptable answer from anyone to his questions, his affidavit says she was then “attempting to undermine the role of Commissioners.”
So, since he had not yet gotten “meaningful” answers to his objections, he told Cliff in an email on September 17th he would consider her pushing forward with the new communications process “grounds for an official complaint to the Office of the Commissioner for Public Service Integrity (PSIC),” reads the email submitted with the affidavit.
“In my last email to you on the subject, I enumerated every outstanding issue to be addressed on this subject. I expect a comprehensive response to my concerns will be forthcoming shortly,” the email continues.
“Govern yourself accordingly.”
Cliff filed her formal harassment complaint the next day. Witnesses quoted in the court filing described her as “absolutely shocked” by the email when she received it in an anteroom at the Let’s Talk TV hearing.
In his affidavit, however, Shoan writes: “The statement was not intended to be threatening. Rather, it remains my belief today that suitable grounds would have existed for a PSIC complaint in the circumstances.”
SHOAN'S AFFIDAVIT ALSO details his serious objections to how the harassment complaint was then handled, how the investigator was chosen, how evidence was gathered and what evidence was gathered. The various witness statements in the investigator’s report are instructive and reveal a very challenging work environment. (As part of the harassment complaint, too, Shoan now has to funnel many of his staff communications through Secretary General John Traversy.)
Chairman Blais said of Shoan, according to the investigators’ report filed with the affidavit: “Given his opinions and conduct, it is difficult to trust him. He therefore causes much concern.”
Vice-chair broadcasting Tom Pentefountas clearly has a different opinion on what authority commissioners have, as compared to Shoan. “Commissioners have no powers,” he is quoted as saying in the investigator’s report, “no right to vote on the speech process.”
Vice-chair telecom Peter Menzies had another viewpoint, however. “(B)ecause it is the Chairperson’s leadership style to work through staff, Commissioners found themselves dealing with staff in a manner that made some Commissioners – rightly or wrongly – concerned staff felt empowered to view Commissioners as subordinate to staff,” reads the investigator’s report, paraphrasing Menzies.
As for the September 17th email, Menzies told the investigators he did not see it as harassment. “While certainly unpleasant, he has seen and tolerated much worse in his more than seven years on the Commission,” reads the investigator’s report. “It was clear all parties were frustrated, the complainant (Cliff) was under pressure to hold her line and rightly or wrongly the respondent (Shoan) sincerely held the view that is was his duty to take issue with what he interpreted as staff subordinating the roles and resources of Commissioners.”
Neither the Commission nor chairman Blais have yet responded to any of these claims, none of which has been proven in court and it’s not known yet when the court will issue a decision or whether or not it will proceed with the judicial review.
