Before: The Honourable Mr. Justice Ehrcke

Reasons for Judgment

Counsel for the Plaintiff	R. D. W. Dalziel
Counsel for the Defendant Canadian Broadcasting Corporation	G. E. Rafter
Counsel for the Defendants Global Television Network Inc. and Global Communications Limited	M. J. Freiman C. Lonsdale
Counsel for the Defendant The Attorney General of Canada	R. J. Danay
Date and Place of Trial/Hearing:	January 7, 8, 2008
	Vancouver, B.C.

Introduction

[1] Before me are two motions, one brought by the plaintiff, Adbusters Media Foundation (“Adbusters”), and one brought by the defendants Global Television Network Inc. and Global Communications Limited (collectively the “Global Defendants”). All parties agree that for the purposes of these motions, the two Global Defendants may be treated as one.

[2] In their motion, the Global Defendants seek an order pursuant to Rule 19(24) of the Rules of Court striking out Adbusters’ writ of summons and amended statement of claim and dismissing the action against them “on the basis that the Plaintiff’s claims disclose no reasonable claim in that the Charter does not apply to private corporations.” The motion of the Global Defendants also refers to Rule 14(6), but their counsel made no reference to that Rule in argument.

[3] The motion brought by Adbusters seeks to add the Canadian Broadcasting Corporation (the “CBC”) and the Canadian Radio-Television and Telecommunications Commission (the “CRTC”) as defendants, and to make incidental amendments to the amended statement of claim. Adbusters also seeks special costs of its motion as against the Attorney General of Canada.

[4] It will be convenient to consider the Global Defendants’ motion first, as the findings on that motion may have implications for the resolution of Adbusters’ motion.

Facts

[5] A motion to strike out a claim under Rule 19(24) does not proceed on evidence, but rather on the pleadings. The question to be determined is whether it is plain and obvious that the pleadings disclose no reasonable cause of action. For purposes of the motion, that question is to be decided on the assumption that all the facts pleaded are true: McNaughton v. Baker (1988), 25 B.C.L.R. (2d) 17 (C.A.), at p. 23. The following is a summary of the relevant facts as pleaded by Adbusters.

[6] The CBC and the Global Defendants are holders of licences issued under the Broadcasting Act, S.C. 1991, c. 11, which they use to broadcast nationally. The CBC is a Crown corporation continued pursuant to the Broadcasting Act.

[7] The CRTC is a commission established under the Canadian Radio-television and Telecommunications Commission Act, R.S.C. 1985, c. C-22, and empowered by the Broadcasting Act to regulate and supervise the Canadian broadcasting system.

[8] In 2003, Adbusters attempted to initiate a television campaign through the broadcast of ten advertisements (the “Advertisements”). The Advertisements are short, video based programs that, according to Adbusters, are intended to inform, enlighten and entertain. They presented varying individual messages but were centred around a criticism of the influence of the media, and especially the television media, on society. Subjects of the Advertisements included fast food, the fashion and beauty industry, the use of sex and violence on television, and the commercialization of society. Adbusters says that the Advertisements were of broadcast quality, and were approved as such by the Telecaster Services branch of the Television Bureau of Canada, which is a private regulatory body that reviews commercials to ensure they meet industry standards for content and ethics.

[9] Adbusters sent nine of the Advertisements to the Global Defendants, who refused to televise any of them. All ten Advertisements were submitted to the CBC, who refused to air any of them on CBC Newsworld or on the main CBC network during news or current affairs programming. The CBC accepted some of the Advertisements for restricted airing.

[10] According to Adbusters, the reason for the refusals was that the anti-consumerist message of the Advertisements was inconsistent with the defendants’ business models and their perception of the preferences of their commercial clientele.

[11] Adbusters brought the present action by way of writ of summons and statement of claim dated January 17, 2005, against the Global Defendants, the CBC, CTV Television Inc. (“CTV”) and the Government of Canada. Adbusters filed a notice of discontinuance on April 7, 2006 with respect to the CBC and CTV, and it filed an amended statement of claim on April 10, 2006. It now seeks once again to add the CBC as a defendant, as well as the CRTC.

[12] As set out in its statement of claim, Adbusters’ case is that the exclusion of the Advertisements from the airwaves was a violation of its right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”). Adbusters’ claim is based on their assertion that Global and the CBC were “government” for purposes of the Charter when they chose not to accept the Advertisements submitted by Adbusters for broadcast.

[13] If relief against the Global Defendants and the CBC is unavailable, Adbusters wishes to advance a secondary claim against the federal Crown. That claim asserts that the federal Crown, including Parliament and the CRTC, has given broadcasters the power to decide which viewpoints will be expressed on Canada’s public airwaves. By having done so without ensuring that broadcasters will not engage in unjustifiable viewpoint discrimination, the federal Crown’s actions and inactions, taken in totality, infringe s. 2(b) of the Charter.

Should Adbusters’ Claim Against the Global Defendants Be Struck Out?

[14] The Global Defendants seek an order pursuant to Rule 19(24) for the amended statement of claim to be struck out and the claim against them dismissed. They submit that the amended statement of claim discloses no reasonable claim against them.

[15] Rule 19(24) provides:

19(24) At any stage of a proceeding the court may order to be struck out or amended the whole or any part of an endorsement, pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence as the case may be,

(b) it is unnecessary, scandalous, frivolous or vexatious,

(d) it is otherwise an abuse of the process of the court,

and the court may grant judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

[16] The test for striking out pleadings under Rule 19(24)(a) is whether, assuming the facts alleged in the pleadings can be proved, it is plain and obvious that the claim discloses no reasonable cause of action. In Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Wilson J. speaking for the Court wrote at p. 980:

Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, it is “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should be the relevant portions of a plaintiff’s statement of claim be struck out under Rule 19(24)(a).

[17] Adbusters’ claim against the Global Defendants is that they infringed its rights under s. 2(b) of the Charter. The Global Defendants submit that as a private corporation, the Charter does not apply to their dealings with Adbusters. They rely on s. 32(1) of the Charter, which provides:

32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

[18] The Global Defendants argue that it is plain and obvious that they are not “government” within the meaning of s. 32(1), and therefore the application under Rule 19(24) should be allowed as the amended statement of claim does not disclose any reasonable cause of action against them. They rely on the decision of the Supreme Court of Canada in McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at p. 261, where La Forest J, said this in relation to s. 32(1):

These words give a strong message that the Charter is confined to government action. This court has repeatedly drawn attention to the fact that the Charter is essentially an instrument for checking the powers of government over the individual.

[19] Adbusters resists the motion to strike on two bases, one procedural and one substantive. First, it submits that its claim involves a novel and complex issue of law with respect to the application of the Charter, and such issues cannot properly be resolved on an application under Rule 19(24). It relies on the judgment of the Supreme Court of Canada in MacKay v. Manitoba, [1989] 2 S.C.R. 357, where it was held at pp. 361-362 that Charter issues should not be resolved in a factual vacuum:

Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.

[20] Adbusters submits that the issue of whether the Charter applies to the Global Defendants should only be determined at trial, where there will be an opportunity to adduce all the relevant evidence to provide the necessary context.

[21] I would not accede to that argument. As set out in Hunt, an application under Rule 19(24) is not about what will likely be proven at trial, but rather about the adequacy of the pleadings. Such an application proceeds on the most favourable possible assumption for the plaintiff, namely, that all of the facts pleaded by the plaintiff can be established by properly admissible evidence. For that reason, Adbusters could not possibly be in a stronger position at trial than it is on this application.

[22] Adbusters’ second argument is that it has an arguable case on the merits, and therefore it is not “plain and obvious” that its claim cannot succeed. It says that the Global Defendants were implementing a government policy when they decided whether to carry the Advertisements. Adbusters refers to para. 39 of its statement of claim, where it says that the Global Defendants, in broadcasting pursuant to their licences issued under the Broadcasting Act were carrying out specific governmental objectives and thereby “assume[d] the Government of Canada’s Charter responsibilities with respect to their performance in that regard.”

[23] Adbusters’ case is that the specific policy implemented by the Global Defendants is the broadcasting policy for Canada described in s. 3 of the Broadcasting Act, which includes “provid[ing] a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern.”

[24] The Global Defendants argue that the point advanced by Adbusters has already been decided against it in an earlier decision of this Court: Adbusters Media Foundation v. Canadian Broadcasting Corp., [1995] B.C.J. No. 2325 (S.C.), appeal dismissed as moot, (1997), 154 D.L.R. (4th) 404 (B.C.C.A.) (hereafter referred to as “Adbusters No. 1”). In that case, the plaintiff argued that the CBC had violated its rights under ss. 2(b) and 15 of the Charter when it declined to broadcast one of its advertisements. It contended that the Charter applied to the CBC either because it is a governmental body, or because in the circumstances, the Charter applied to all broadcasters.

[25] Holmes J. considered and applied the decision of the Supreme Court of Canada in McKinney, as well as Harrison v. University of British Columbia, [1990] 3 S.C.R. 451; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483 and Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570. At paras. 31-33, he observed:

¶ 31 The CBC does have several of the indicia of a governmental body. The test however is conduct based. It must therefore be found that the conduct in issue of the entity in question is governmental in nature to give rise to Charter application.

¶ 32 In McKinney v. University of Guelph (1990), 76 D.L.R. (4th) 545 (SCC), Sopinka J. at p. 697 observed that:

In attempting to classify the conduct of an entity in a given case it is important to know, first, that it is a governmental body and, second, that it is acting in that capacity in respect of the conduct sought to be subjected to Charter scrutiny.

¶ 33 Mr. Justice La Forest illustrated at p. 642-3 how that occurs:

Though the legislature may determine much of the environment in which universities operate, the reality is that they function as autonomous bodies within that environment. There may be situations in respect of specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government, but there is nothing here to indicate any participation in the decision by the government and, as noted, there is no statutory requirement imposing mandatory retirement on the universities.

[26] At para. 48, Holmes J. concluded that the Charter does not apply to the CBC either as a governmental body or as a broadcaster generally:

¶ 48 I do not find the Charter has application to the CBC as contended either specifically or generally as a broadcaster, viewed in the context of the circumstances and conduct of its dealing with the plaintiff in issue here. I find it unnecessary therefore to deal with the issue of breach of specific Charter sections.

[27] Adbusters argues that I should not follow the 1995 decision of Holmes J. because two years later in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, the Supreme Court of Canada formulated a new test that goes beyond anything contemplated in McKinney and the other cases upon which the decision in Adbusters No. 1 was based.

[28] Adbusters submits that in Eldridge, the Court added a new factor that must be considered when determining whether a non-governmental entity was performing an inherently governmental activity, and that is, whether the private entity was implementing a specific governmental policy or program.

[29] The relevant passages from Eldridge appear at paras. 41-44:

¶ 41 While it is well established that the Charter applies to all the activities of government, whether or not those activities may be otherwise characterized as "private", this Court has also recognized that the Charter may apply to non-governmental entities in certain circumstances; see generally Robin Elliot, "Scope of the Charter's Application" (1993), 15 Advocates' Q. 204, at pp. 208-9. It has been suggested, for example, that the Charter will apply to a private entity when engaged in activities that can in some way be attributed to government. This possibility was contemplated in McKinney, where I stated the following, at pp. 273-74:

Though the legislature may determine much of the environment in which universities operate, the reality is that they function as autonomous bodies within that environment. There may be situations in respect of specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government, but there is nothing here to indicate any participation in the decision by the government and . . . there is no statutory requirement imposing mandatory retirement on the universities. [Emphasis added.]

I commented further on as follows, at p. 275:

I, therefore, conclude that the respondent universities do not form part of the government apparatus, so their actions, as such, do not fall within the ambit of the Charter. Nor in establishing mandatory retirement for faculty and staff were they implementing a governmental policy. [Emphasis added.]

The idea that certain activities of non-governmental entities may be viewed as the responsibility of government was further elucidated in my reasons in Lavigne where, after discussing McKinney, Harrison, Douglas and Stoffman, I stated as follows, at p. 312:

The majority in the above cases relied solely on the element of control in determining what fell within the apparatus of government, although it made clear that government may, in some circumstances, be subject to Charter scrutiny in respect of activities in the private sector where the government could be said to have some responsibility for that activity. [Emphasis added.]

¶ 42 It seems clear, then, that a private entity may be subject to the Charter in respect of certain inherently governmental actions. The factors that might serve to ground a finding that an activity engaged in by a private entity is "governmental" in nature do not readily admit of any a priori elucidation. McKinney makes it clear, however, that the Charter applies to private entities in so far as they act in furtherance of a specific governmental program or policy. In these circumstances, while it is a private actor that actually implements the program, it is government that retains responsibility for it. The rationale for this principle is readily apparent. Just as governments are not permitted to escape Charter scrutiny by entering into commercial contracts or other "private" arrangements, they should not be allowed to evade their constitutional responsibilities by delegating the implementation of their policies and programs to private entities. In McKinney, I pointed to Slaight, supra, as an example of a situation where action taken in furtherance of a government policy was held to fall within the ambit of the Charter. I noted, at p. 265, that the arbitrator in that case was "part of the governmental administrative machinery for effecting the specific purpose of the statute". "It would be strange", I wrote, "if the legislature and the government could evade their Charter responsibility by appointing a person to carry out the purposes of the statute"; see idem. Although the arbitrator in Slaight was entirely a creature of statute and performed functions that were exclusively governmental, the same rationale applies to any entity charged with performing a governmental activity, even if that entity operates in other respects as a private actor; see A. Anne McLellan and Bruce P. Elman, "To Whom Does the Charter Apply? Some Recent Cases on Section 32" (1986), 24 Alta. L. Rev. 361, at p. 371.

¶ 43 Two important points must be made with respect to this principle. First, the mere fact that an entity performs what may loosely be termed a "public function", or the fact that a particular activity may be described as "public" in nature, will not be sufficient to bring it within the purview of "government" for the purposes of s. 32 of the Charter. Thus, with specific reference to the distinction between the applicability of the Charter, on the one hand, and the susceptibility of public bodies to judicial review, on the other, I stated as follows, at p. 268 of McKinney:

It was not disputed that the universities are statutory bodies performing a public service. As such, they may be subjected to the judicial review of certain decisions, but this does not in itself make them part of government within the meaning of s. 32 of the Charter. . . . In a word, the basis of the exercise of supervisory jurisdiction by the courts is not that the universities are government, but that they are public decision-makers. [Emphasis added.]

In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program. As I stated further on in McKinney, at p. 269, "[a] public purpose test is simply inadequate" and "is simply not the test mandated by s. 32".

¶ 44 The second important point concerns the precise manner in which the Charter may be held to apply to a private entity. As the case law discussed above makes clear, the Charter may be found to apply to an entity on one of two bases. First, it may be determined that the entity is itself "government" for the purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as "government" within the meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as "private". Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly "governmental" in nature -- for example, the implementation of a specific statutory scheme or a government program -- the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.

[30] Adbusters submits that while para. 41 is a restatement of the test in McKinney, paras. 42 - 44 amount to a new test that had not previously been articulated and that was not considered in Adbusters No. 1. This test focuses on whether the actions of the non-governmental entity are truly governmental in nature, because they are the implementation of a government program.

[31] The Global Defendants submit that these passages from Eldridge do not amount to a new test, and therefore, they do not provide a basis for distinguishing the decision of Holmes J. in Adbusters No. 1. They point out that at p. 275 of McKinney, La Forest J. specifically referred to the implementation of governmental policy as a factor that needed to be considered:

I, therefore, conclude that the respondent universities do not form part of the government apparatus, so their actions, as such, do not fall within the ambit of the Charter. Nor in establishing mandatory retirement for faculty and staff were they implementing a governmental policy.

[32] I agree with the Global Defendants that the Supreme Court of Canada’s decision in Eldridge does not amount to a departure from the principles in McKinney and therefore does not provide a basis for distinguishing the decision of Holmes J. in Adbusters No. 1. In Eldridge Mr. Justice La Forest went out of his way to explain how his reasoning is based on what was said in McKinney. He specifically quoted the above-noted passage from p. 275 of McKinney that mentioned the implementation of governmental policy as a relevant factor.

[33] I therefore consider myself bound to follow the decision of Holmes J. in Adbusters No. 1. That case clearly held the CBC’s action of declining to broadcast one of Adbusters’ advertisements was not subject to Charter scrutiny, and that the same result would apply even if the CBC were a private broadcaster.

[34] I conclude that it is plain and obvious that Adbusters’ pleadings in the present case do not raise a reasonable cause of action against the Global Defendants. As against the Global Defendants, the amended statement of claim is struck out and the action is dismissed.

[35] In their written argument, the Global Defendants submitted that there should be an order for special costs against Adbusters. They withdrew that submission during oral argument.

[36] Adbusters submits that it should be relieved from any order as to costs because it is a public advocacy organization.

[37] In the circumstances of this case, I am satisfied that the usual rule should apply, namely, that costs follow the event. The Global Defendants shall have their costs against Adbusters on Scale B.

Should the CBC be Added as a Defendant?

[38] In its notice of motion, Adbusters applies to add the CBC as a defendant.

[39] The application is brought pursuant to Rule 15(5)(a), which provides:

15(5) (a) At any stage of a proceeding, the court on application by any person may

(i) order that a party, who is not or has ceased to be a proper or necessary party, cease to be a party,

(ii) order that a person, who ought to have been joined as a party or whose participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon, be added or substituted as a party, and

(iii) order that a person be added as a party where there may exist, between the person and any party to the proceeding, a question or issue relating to or connected

(A) with any relief claimed in the proceeding, or

(B) with the subject matter of the proceeding,

which in the opinion of the court it would be just and convenient to determine as between the person and that party.

[40] An unusual circumstance in this case is that the CBC had been named as a defendant when the original writ of summons and statement of claim were filed. Later, there were settlement discussions between Adbusters and the CBC, and Adbusters filed a notice of discontinuance. There were also discussions about a release or a covenant not to sue, but no such document was ever signed by Adbusters.

[41] Adbusters has filed an affidavit sworn by their current president, Kalle Lasn, that the decision to discontinue was motivated by financial limitations that Adbusters was facing at the time.

[42] The CBC opposes the application to add them as a defendant on three bases.

[43] First, it argues that there was a concluded settlement between the parties, and this should result in a stay of any further proceedings against them pursuant to s. 8 of the Law and Equity Act, R.S.B.C. 1996, c. 253.

[44] Second, the CBC argues that Rule 36(8) should be interpreted to preclude adding them as a defendant to the same action in which there has already been a discontinuance. Rule 36(8) provides:

36 (8) Unless otherwise ordered, the discontinuance of an action in whole or in part is not a defence to a subsequent proceeding for the same or substantially the same cause of action.

The CBC submits that in the context of that Rule, “subsequent proceeding” cannot include the very same action in which there has been a discontinuance filed.

[45] Finally, the CBC submits that it is not just and convenient for it to be added as a defendant, and Adbusters’ application should therefore be refused.

[46] I need not decide whether there was a concluded settlement agreement or whether Rule 36(8) precludes adding a party to the same proceeding in which there has already been a discontinuance, as I am satisfied that the CBC must succeed on its third point, namely, that it is not just and convenient for it to be added as a defendant.

[47] The threshold for showing that “there may exist ... a question or issue” between the plaintiff and the proposed new defendant under Rule 15(5)(a)(iii) is a low one; the plaintiff need only show that there is a possible cause of action that is not entirely frivolous: Strata Plan LMS 1212 v. Coquitlam (City), (2004), 31 B.C.L.R. (4th) 356 (S.C.) at para. 15. Adbusters submits that the threshold is the same as that for defeating an application to strike out a claim under Rule 19(24)(a).

[48] For the reasons discussed above in relation to the Global Defendants, I have found that the present case cannot be distinguished from Adbusters No. 1. There, on facts very similar to the present case, Holmes J. decided that the actions of the CBC were not subject to Charter scrutiny.

[49] I conclude that it is not just and convenient to add the CBC as a defendant pursuant to Rule 15(5)(a). Adbusters’ application is dismissed against the CBC. The CBC shall its costs of this motion on scale B.

Should the CRTC be Added as a Defendant?

[50] Adbusters applies in its notice of motion to add the CRTC as a defendant and to amend its statement of claim accordingly.

[51] Counsel for the Attorney General of Canada appeared on the plaintiff’s motion and opposes it, on the basis that the addition of the CRTC as a party to this action is precluded by s. 23(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. That section provides:

23 (1) Proceedings against the Crown may be taken in the name of the Attorney General of Canada or, in the case of an agency of the Crown against which proceedings are by an Act of Parliament authorized to be taken in the name of the agency, in the name of that agency.

[52] Although s. 23(1) uses the word “may”, it has been interpreted as meaning that where proceedings are taken against the Crown, they may only be taken in the name of the Attorney General of Canada, unless otherwise provided by federal statute: Young v. McLellan, 2005 BCCA 563; Dix v. Canada, 2001 ABQB 256; Munro v. Canada (1992), 11 O.R. (3d) 1 (Ont. Gen. Div.), rev’d on other grounds 16 O.R. (3d) 564 (C.A.).

[53] The CRTC is an unincorporated commission, described in the Financial Administration Act, R.S.C. 1985, c. F-11 as a department that is part of the public service, to which the Minister of Canadian Heritage has been assigned. Its members are appointed by the Governor in Council. There is no federal statute authorizing proceedings to be taken in the name of the CRTC. The Attorney General of Canada therefore submits that the CRTC is clearly within the ambit of s. 23(1) of the Crown Liability and Proceedings Act, and the motion to add the CRTC as a defendant should be dismissed.

[54] In oral argument, counsel for Adbusters submitted that he agrees with the position taken by the Attorney General of Canada, and he invited the court to dismiss Adbusters’ motion.

[55] The motion to add the CRTC as a defendant to this action is accordingly dismissed.

[56] Notwithstanding the fact that Adbusters invited the court to dismiss its own motion, it nevertheless seeks special costs against the Crown. It submits that it was required to bring this motion because of the position taken by the Attorney General of Canada at paragraphs 14 and 17 of its statement of defence, that “the CRTC is an independent public authority” and that “the CRTC is alone charged with the regulation and supervision of the Canadian broadcasting system.” Adbusters submits that the Attorney General of Canada has now, on this motion, reversed its stance, and this should justify an order for special costs pursuant to the principles in Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740 (B.C.C.A.).

[57] The Attorney General of Canada submits that it has not reversed its stance, but that even if it had, this would not entitle Adbusters to an order for special costs: Schryer v. Canada (Attorney General), (2001) 86 B.C.L.R. (3d) 149 (S.C.).

[58] The Attorney General of Canada also points out that there remains outstanding an issue as to whether any claim in respect of the conduct of the CRTC should be brought in the Federal Court rather than this court.

[59] Adbusters has not persuaded me that there should be an order for costs in its favour, when it conceded that its own motion should be dismissed. However, given the unusual circumstances that led to its bringing the motion, I shall not award costs to Crown. Both Adbusters and the Attorney General of Canada shall bear their own costs of this motion.

The Honourable Mr. Justice W. F. Ehrcke

Citation:	*Adbusters Media Foundation v. Canadian Broadcasting Corporation,*
	2008 BCSC 71