Roskam v. Rogers Cable, 2008 CanLII 24233 (ON SCDC)

BARRIE DIVISIONAL COURT FILE NO.: 07-0351

SMALL CLAIMS COURT FILE NO.: 1982-2006

DATE: 20080523

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

B E T W E E N:

DARREN ADRIAN ROSKAM

Darren Adrian Roskam, self represented

Appellant

• and -

ROGERS CABLE (A BUSINESS)

Sonja Knauft, for the Respondent

Respondent

HEARD: May 23, 2008

ON APPEAL FROM THE JUDGMENT OF DEPUTY JUDGE JUDITH L. TURNER

DATED FEBRUARY 23, 2007

DiTOMASO J.

THE APPEAL

1This is an appeal by the Appellant Darren Adrian Roskam (“Mr. Roskam”) from the decision of Deputy Judge J.L. Turner at a Settlement Conference held February 23, 2007 where Mr. Roskam’s Claim was dismissed.

2Deputy Judge Turner’s endorsement reads as follows:

The Plaintiff’s action is dismissed pursuant to Rule 13.05(2)(v) as he has no cause of action and has no provable damages. No costs are being awarded.

OVERVIEW

3Mr. Roskam filed a Claim against Rogers on December 1, 2006. He claimed damages in the amount of $10,000 and described his claim as follows:

Using the resources of Rogers’ Community TV station to impede upon my right to free speech as guarantee (sic) by the Canadian Charter of Rights and Freedoms, and simultaneously abusing their CRTC licence to give unfair advantage to my opponents.

4Mr. Roskam was a candidate running in the Barrie municipal election in 2006. He participated in a Meet the Candidates program at Rogers. During the telecast, Mr. Roskam claims that his three minute presentation was violated by Rogers as Rogers violated its CRTC licence by deliberately censoring Mr. Roskam. Rogers allegedly did so by “rolling over” the “A” in “A Channel”.

5Mr. Roskam did not win the election and finished with 30 votes while the elected official obtained 1,877 votes.

6Mr. Roskam submits that by rolling over the “A”, he was prevented from enjoying the support of the public who did not like “A Channel” or similarly were unsuccessful in trying to get a media job as he had tried at “A Channel”.

7He commenced proceedings against Rogers not so much for monetary compensation. Rather, he wanted a trial to have a representative of Rogers cross-examined as to why Mr. Roskam was censored.

8Further, he submits that the Deputy Judge did not have the jurisdiction to dismiss his claim at the settlement conference hearing.

9Mr. Roskam served a Notice of Constitutional Question with his Notice of Appeal. However, he did not raise the constitutional questions raised in said Notice at first instance. The Respondent Rogers is a private corporation.

10In its factum, Rogers relies upon additional facts set out at paragraphs 15 – 29. In essence, the Deputy Judge dismissed Mr. Roskam’s claim after hearing argument from Rogers’ solicitor requesting that an order be made pursuant to R.13.05(2)(v) of the Small Claims Court Rules and after hearing argument from Mr. Roskam on the issue.

11The Deputy Judge dismissed the Plaintiff’s Claim pursuant to said Rule. In addition, Mr. Roskam did not file and serve a form 13A – list of proposed witnesses or file a copy of any document to be relied on at trial pursuant to Rule 13.03(2). He did not provide the Deputy Judge with any evidence for the Deputy Judge to review or to substantiate Mr. Roskam’s claim. Mr. Roskam stated that his reason for commencing the action was to place a representative of Rogers on the stand so that he could “cross-examine them and teach them a lesson”. Mr. Roskam would be happy if he could limit his monetary claim to one penny as a condition for his appeal being granted.

THE ISSUES

12There are four issues that arise out of this Appeal:

(1) Does the fact that Deputy Judges are also full-time practicing lawyers infringe Mr. Roskam’s Charter rights?

(2) Is it necessary for this court to decide the constitutional issues raised by Mr. Roskam?

(3) Does the Superior Court of Justice have the jurisdiction to decide the substantive issues raised in Mr. Roskam’s claim? and

(4) Did the Deputy Judge err in deciding that Mr. Roskam did not have a cause of action and/or provable in damages?

ANALYSIS

13Regarding the first ground of appeal, Mr. Roskam alleges a Charter violation under section 15. He does not allege actual bias on the part of the Deputy Judge but alleges systemic bias. The Supreme Court of Canada has already adjudicated upon the issue of part-time judges that are also allowed to maintain a private practice. The allowance of part-time judges to continue to practice law while adjudicating claims does not infringe Mr. Roskam’s Charter rights either in respect of section 15 or section 11(d) of the Charter as there does not exist any institutional impartiality if the appropriate legislative safeguards are in place.¹

14Deputy Judges of the Small Claims Court in Ontario are required to take an oath of office, enjoy judicial immunity, are subject to a complaints procedure and are governed by the Deputy Judges Council which sets and approves standard of conduct of Deputy Judges.²

15These legislative safeguards do not give rise to a reasonable apprehension of bias and therefore the fact that Deputy Judges are also allowed to practice law while adjudicating claims does not infringe section 11(d) of the Charter. The Charter does not guarantee the “ideal” situation as a guaranteed constitutional right.³

16Rogers is a private company and not a government agency. Mr. Roskam’s Charter arguments do not apply and this ground of appeal fails.

17Regarding the second ground of appeal, the court should not decide constitutional issues raised by Mr. Roskam if the issues are not necessary to the resolution of his claim against Rogers and to the appeal.⁴

18As it is not necessary for this court to decide the constitutional issues raised by Mr. Roskam, this ground of appeal also fails.

19The third ground of appeal deals with the exclusive jurisdiction of the CRTC.

20The second branch of Mr. Roskam’s claim against Rogers is based on an alleged abuse by Rogers of its CRTC licence.

21The CRTC is a specialized body that has exclusive jurisdiction to deal with issues concerning a broadcasters licence and this court does not.⁵

22An appeal from a CRTC decision lies to the Federal Court of Appeal and not a provincial court.⁶

23An alleged abuse of a CRTC licence is a regulatory matter and not the foundation of a cause of action in the civil courts. Mr. Roskam has not brought his complaint regarding censorship before the CRTC. The facts are not disputed that Rogers dropped the “A” in “A Channel” nine out of thirteen times. If Mr. Roskam had any complaint in this regard it should have brought before the CRTC which has jurisdiction over these matters. For these reasons, this ground of appeal also fails.

24The last ground of appeal deals with the question of whether the Deputy Judge erred in deciding that Mr. Roskam did not have a cause of action and/or provable damages. Mr. Roskam did not attach to his claim any documents to substantiate his claim for damages.

25Neither did Mr. Roskam for the purposes of settlement conference provide a copy of any document to be relied upon at trial or a proposed list of witnesses substantiating his claim for damages pursuant to Small Claims Court Rule 13.03(2)(a) and (b).

26Mr. Roskam was under the mistaken belief that Deputy Judge Turner did not have the jurisdiction to make an order dismissing his claim at a settlement conference. Clearly, Deputy Judge Turner did have that specific authority as provided in Rule 13.05(2)(a)(v) which provides that the judge may make an order staying or dismissing a claim. This ground of appeal also fails.

27Two additional submissions were made on behalf of Rogers. Firstly, Mr. Roskam is using the judicial system to cross-examine a member of Rogers “to teach them a lesson”. This is not the proper use of the judicial system. The CRTC would be the appropriate regulatory agency to hear Mr. Roskam’s complaint. He has not advanced any sort of claim or complaint before the CRTC as he feels that he has no faith in that process by his own admission. Secondly, Rogers submits that the appeal is frivolous and vexatious and ought to be dismissed.

CONCLUSION

28For the reasons stated above, I find that this appeal ought to be dismissed. Further, Deputy Judge Turner committed no error in law in dismissing Mr. Roskam’s claim on the basis that Mr. Roskam did not have a cause of action and/or provable damages. The Deputy Judge was entitled to make that finding at the settlement conference on the face of Mr. Roskam’s Claim and Rogers’ defence which were before her. Accordingly, the appeal is dismissed.

29As for the question of costs, counsel for Rogers claims costs in the amount of $8,000 as the successful party in respect of costs associated with this appeal. Mr. Roskam submits that there should be no costs awarded against him. The costs claimed by Rogers are grossly excessive and outrageous. He did not advance a frivolous claim but rather took the steps that he did so as to instruct Rogers not to censor political speeches. He takes the position that no costs ought to be assessed against him. Counsel for Rogers is of the view that Mr. Roskam’s claim was clearly frivolous and vexatious. The claim was brought in the Small Claims Court which did not have jurisdiction. While Deputy Judge Turner awarded no costs at the settlement conference, Rogers costs of the appeal have been substantial.

30There have been offers to settle in respect of the appeal with Rogers advancing a position that the appeal ought to be dismissed without costs. Mr. Roskam’s last settlement offer dated November 11, 2007 was for settlement in the amount of $500. Rogers’ responding offer of November 14, 2007 was, again, dismissal of the appeal without costs.

31Rogers is clearly the successful party in respect of this appeal and is entitled to costs. While Rogers was also successful in respect of its offer to settle, $8,000 is an excessive amount.

32In all of the circumstances surrounding this appeal, in determining the proper amount of costs, the overarching principles of fairness and reasonableness must apply. I am guided by the principles of the Court of Appeal in fixing an amount of costs that is fair and reasonable for the unsuccessful party to pay rather than an amount fixed by the actual costs incurred by the successful party. The fixing of costs is not a purely mathematical computation. The outcome is not determined simply by multiplying the number of hours spent by the hourly rates of lawyers involved. The costs awarded should reflect more of what the court views as fair and reasonable for the unsuccessful party to pay rather than the exact measure of the actual costs to the successful litigant.⁷ I have considered these principles and in all the circumstances, I would fix the costs of this appeal in the amount of $1,500 all inclusive payable by the Appellant Darren Adrian Roskam to the Respondent Rogers Cable (A Business) also known as Rogers Television within 30 days of this decision. Rogers shall submit a draft order to Mr. Roskam for approval as to form and content. Mr. Roskam shall have seven days to approve said draft order as to form and content and return same to counsel for Rogers. If Mr. Roskam does not do so within that time period, counsel for Rogers may attend the court and take out the Order without his approval.

DiTOMASO J.

Footnotes

1. 1R. v. Lippe, 1990 18 (SCC), [1991] 2 S.C.R. 114, (S.C.C.) pp 34 and 46
2. 2Sections 33(6), 33.1, 80, and 82 of the Courts of Justice Act as amended.
3. 3See R. v. Lippe at p.34
4. 4Phillips v. Nova Scotia (Commission of Inquiry in the Westray Mine Tragedy), 1995 86 (SCC), [1995] 2 S.C.R. 97 (S.C.C.) at p.21
5. 5Mahar v. Rogers Cablesystems Ltd. (1995), 1995 7129 (ON SC), 25 O.R. (3d) 690 at p.697
6. 6See Mahar (supra) at p.697
7. 7Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)
   Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (C.A.)
   Zesta Engineering Ltd. v. Cloutier (2002), 2002 45084 (ON CA), 164 O.A.C. 234 (C.A.)