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2016 Allocation of Paid Time

Seal of the Broadcast Arbitrator

The Broadcasting Arbitrator

Suite 5300
Toronto-Dominion Bank Tower
Toronto, Ontario
M5K 1E6

Tel: 416-601-7620
Fax: 416-868-0673
Cell: 647-588-7620


Reasons for Decision

Introduction

Under section 335 of the Canada Elections Act (the "Act"), every broadcaster in Canada is required to make available for purchase by registered political parties six and one-half hours (390 minutes) of air time in each federal general election. The Act provides that the allocation of this time among the parties is to be made by agreement among them, or failing such agreement, by the decision of the Broadcasting Arbitrator.

The parties having met and failed to agree, I am now required to make a binding allocation of the 390 minutes of paid time among the parties. This document sets out my reasons for the decision in that regard.

I was reappointed as the Broadcasting Arbitrator on April 20, 2016. In accordance with section 336 of the Act, I convened a meeting of all registered parties on June 21, 2016. The registered parties who were invited are listed below:

Sixteen registered parties sent representatives to the meeting and seven did not. Prior to the meeting, each of the parties who were not present indicated that they wished to receive an allocation of paid time.

Alternative Allocation Approaches

At the meeting, I circulated to all the parties a table setting out the calculations of various factors that could be considered in arriving at an allocation.

The starting point for any allocation is section 338 of the Act, which sets out a number of factors to be taken into account. Using statistics based on the 2015 general election, one can directly apply the statutory formula in section 338, as follows:

  1. equal weight is given to the percentage of seats in the House of Commons and the percentage of the popular vote garnered by each of the registered parties in the 2015 general election;

  2. half weight is given to the number of candidates endorsed by each of the registered parties as a proportion of all candidates so endorsed;

  3. the resulting ratio is then applied to the total of 390 minutes and the result for each party is rounded to the nearest half-minute.

If one applied the statutory formula, as set out above, and rounded to the nearest half-minute, the result would be as shown in Table 1.

Table 1
Political Party Min:Sec
Liberal Party of Canada 162:00
Conservative Party of Canada 111:00
New Democratic Party 66:30
Green Party of Canada 21:00
Bloc Québécois 15:30
Libertarian Party of Canada 3:30
Marxist-Leninist Party of Canada 3:30
Christian Heritage Party of Canada 1:30
Rhinoceros Party 1:30
Communist Party of Canada 1:00
Forces et Démocratie 1:00
Animal Alliance Environment Voters Party of Canada 0:30
Marijuana Party 0:30
Progressive Canadian Party 0:30
Alliance of the North 0:00
Canada Party 0:00
Canadian Action Party 0:00
Democratic Advancement Party of Canada 0:00
Party for Accountability, Competency and Transparency 0:00
Pirate Party of Canada 0:00
Seniors Party of Canada 0:00
The Bridge Party of Canada 0:00
United Party of Canada 0:00
Total 389:30

As will be apparent from Table 1, nine of the parties would get no time at all under the statutory formula and another nine parties would get less than four minutes of paid time.

Since my first appointment in 1992, I have ruled that an approach using just the statutory factors was not in the public interest, nor fair to all the registered parties, because it did not give the smaller parties enough time to make a meaningful case on the broadcast media to their potential supporters. Accordingly, since 1992, I have generally adopted what has come to be known as the "one-third modified allocation approach." Under this approach, one third of the available time is allocated equally among the registered parties. The remaining two thirds of the time is allocated on the basis of the statutory factors.

This approach has now been used in eight federal general elections, namely, the elections of 1993, 1997, 2000, 2004, 2006, 2008, 2011 and 2015.

If this approach were taken, based on the statistics of the 2015 general election, and after rounding to the nearest half-minute, the result would be as shown in Table 2. It should be noted that as a result of the application of this formula, the total time allocated is 392 minutes. Therefore, to reach the statutory requirement of 390 minutes, two minutes were deducted pro rata from the allocation of the three parties with the largest allocation.

Table 2
Political Parties Min:Sec
Liberal Party of Canada 114:00
Conservative Party of Canada 80:00
New Democratic Party 50:00
Green Party of Canada 20:00
Bloc Québécois 16:00
Libertarian Party of Canada 8:00
Marxist-Leninist Party of Canada 8:00
Christian Heritage Party of Canada 6:30
Communist Party of Canada 6:30
Rhinoceros Party 6:30
Animal Alliance Environment Voters Party of Canada 6:00
Democratic Advancement Party of Canada 6:00
Forces et Démocratie 6:00
Marijuana Party 6:00
Pirate Party of Canada 6:00
Progressive Canadian Party 6:00
Alliance of the North 5:30
Canada Party 5:30
Canadian Action Party 5:30
Party for Accountability, Competency and Transparency 5:30
Seniors Party of Canada 5:30
The Bridge Party of Canada 5:30
United Party of Canada 5:30
Total 390:00

This approach significantly increases the number of minutes allocated to the smaller parties, but still gives predominant weight to the statutory factors. The result is that the smallest parties receive an allocation of at least five minutes and 30 seconds.

Several other approaches to allocation were discussed at the meeting.

A number of smaller parties urged that an "equal time approach" be used. Under this approach, the time would be handed out equally to all the parties, and the statutory factors would be entirely ignored. Each of the 23 registered parties would be allocated about 17 minutes.

Since the amount of time prescribed under subsection 339(1) of the Act for "eligible parties" (i.e. newly formed parties who have not yet contested an election) is up to six minutes, another approach would be to award each party at least six minutes. This would use up 138 minutes. The remaining 252 minutes would be distributed according to the statutory factors, i.e. on the basis of the statutory approach described earlier.

One party suggested that instead of allocating one third of the time equally, and two thirds according to the statutory factors, this should be reversed, so that two thirds would be allocated equally and one third according to the statutory factors.

Another option would be to adopt, a "50/50 modified approach," under which 50 percent of the available time is allocated equally among the registered parties. The remaining 50 percent of the time is allocated on the basis of the statutory factors.

Allocation of Free Time

Free time, which is required to be given to the parties only by a limited number of broadcast networks, is allocated pro rata to the paid time allocation pursuant to paragraph 345(2)(b) of the Act.

In that connection, I circulated a table at the meeting showing the approximate free time (rounded to the half-minute) that each registered party would receive if the one-third modified approach were taken with respect to paid time. The result is shown in Table 3 below. These numbers were adjusted by 30 seconds or one minute for the two parties with the largest allocation in order to achieve the necessary free time totals for each network.

Table 3
Political Party CBC-TV
SRC-TV
Network/Réseau
Min:Sec
CBC Radio One
SRC Première chaîne
Network/Réseau
Min:Sec
TVA
V Télé
Network/Réseau
Min:Sec
Liberal Party of Canada 61:30 35:00 17:30
Conservative Party of Canada 43:30 25:00 12:00
New Democratic Party 27:30 15:30 8:00
Green Party of Canada 11:00 6:00 3:00
Bloc Québécois 9:00 5:00 2:30
Libertarian Party of Canada 4:30 2:30 1:30
Marxist-Leninist Party of Canada 4:30 2:30 1:30
Animal Alliance Environment Voters Party of Canada 3:30 2:00 1:00
Christian Heritage Party of Canada 3:30 2:00 1:00
Communist Party of Canada / Parti communiste du Canada 3:30 2:00 1:00
Democratic Advancement Party of Canada 3:30 2:00 1:00
Forces et Démocratie 3:30 2:00 1:00
Marijuana Party 3:30 2:00 1:00
Pirate Party of Canada 3:30 2:00 1:00
Progressive Canadian Party 3:30 2:00 1:00
Rhinoceros Party 3:30 2:00 1:00
Alliance of the North 3:00 1:30 1:00
Canada Party 3:00 1:30 1:00
Canadian Action Party 3:00 1:30 1:00
Party for Accountability, Competency and Transparency 3:00 1:30 1:00
Seniors Party of Canada 3:00 1:30 1:00
The Bridge Party of Canada 3:00 1:30 1:00
United Party of Canada 3:00 1:30 1:00
Total 214:00 120:00 62:00

Discussion of Alternative Paid Time Allocation Approaches

Each of the foregoing approaches to the allocation of paid time was discussed at the meeting, and each had its supporters. Following the discussion, I asked each party to indicate which allocation approach it would be prepared to accept. All of the approaches had a number of parties opposing as well as a number supporting them. Accordingly, no allocation approach discussed received the support of all the parties.

Thus, I am required to make an allocation based on my best judgment as to where the public interest lies.

Conclusion

Prior to 1995, the allocation of paid time had a major consequence for parties receiving a small allocation. That was because the allocation operated as a maximum "cap" on the amount of time a political party was permitted to purchase from any radio or television station or network during the election period. However, this aspect of the allocation regime was struck down in the courts in the Reform Party case and no longer applies (Reform Party of Canada v. Canada (Attorney General )(1995), 27 Alta. L. R. (3d) 153, 1995 4 W.W.R. 609 (Alta. C. A.) – case was not appealed to the Supreme Court of Canada). Accordingly, parties are free to purchase time in excess of their allocation if they choose to do so and the station or network agrees.

Does this mean that the allocation regime no longer has any significance? This is not the case, for two reasons. First, once an allocation is made, it provides a party with an entitlement to purchase time at the lowest applicable rate for equivalent time at the time of the party's choosing, even if it pre-empts other commercial advertising. Second, the paid time allocation sets the ratios which the Act applies in regard to the provision of free time to the political parties on certain networks. Thus the paid time allocation process continues to play a useful role

As I have noted above, at the meeting, a number of smaller parties urged me to adopt an equal time approach and ignore the statutory factors entirely. Following the meeting, I received more than two dozen identical emails from supporters of the Pirate Party, also urging me to adopt an equal time approach. They argued that allowing any party to have an advantage in accessing broadcasting time based on how well it did in the previous election would be inherently unfair.

There is much to be said for this sentiment, but it is not reflected in the Act. The factors listed in subsection 338(1) focus only on how parties did in the past election, and while I have the ability to modify an allocation based on these factors so that it is not unfair, that is not the same as discarding the statutory factors entirely.

As I have noted in previous allocation decisions, I feel that I should depart from the statutory approach only to the extent that the statutory formula is unfair to the parties. And in those past decisions, I have adopted the one-third modified approach.

In the course of the allocation meeting, one of the arguments made for an increased paid time allocation for smaller parties was the fact that since they do not have the money to purchase paid time, they are more reliant on free time, and the only way to increase their free time allocation would be to increase the paid time allocation.

This argument has also been made in previous meetings. I had occasion to deal with it in my Reasons for Decision in 2001, where I made the following comments:

It is widely acknowledged that free time is not as potent as paid time; it is scheduled by the network, not by the party, and it is only required to be broadcast by a few networks, not by all stations. In previous reports to Parliament I have pointed to the problems of free time, and the need for reform. However, I am reluctant to give smaller parties a higher paid time allocation simply on the basis that they never expect to use it, but will rely only on free time, and the higher amount of paid time is sought simply as a means to trigger a higher amount of free time so as to make up the difference.

This approach would seemingly reward a party whose fund-raising efforts fail to produce enough funding to purchase broadcast advertising, and who then use this failure as an argument for more free time. There are certainly reasonable arguments why all parties should be given a basic amount of free time on a wider number of stations. However, I am reluctant to use the paid time allocation process to try to correct the shortfalls of the free time process. I feel that the proper forum for such a reform is Parliament.

I have therefore concluded that if there is to be any increase in paid time for smaller parties resulting from a new modification of the formula applied, it should be based on a demonstrated need for these parties to have more paid time in order to make a meaningful case to the public.

Based on the 2015 statistics, the one-third modified approach gives only five and one-half paid minutes to each of the smaller parties. This is less than the amount allocated to the smallest parties in any of my previous allocation decisions. In 1992, there were only eight parties. Now there are 23 parties seeking time.

In my 1992 decision, I noted that in the 1992 referendum, most significant committees were given only 5–15 minutes of free time, and that "even the lower amounts of allocation were able to be effectively utilized by certain of the committees involved, but that the ads became particularly effective once a threshold of 10–20 minutes was reached." Over the years, I have invited parties to provide evidence on whether a higher or lower amount of paid time is adequate for a party to get its message out to the public. However, I have never received such evidence, and the referendum experience in my view continues to be relevant.

Using the 10-minute mark as a minimum threshold, I note that under the one-third modified approach, the smallest parties would not reach this threshold even if one combined the paid time allocation with the free time allocation that they would also be entitled to.

Accordingly, based on the factors discussed in my previous decisions, and the discussion at the meeting, I have concluded that the one-third modified approach no longer continues to be the best approach to take at this time.

Given the number of different parties that are now involved, I think it is time to increase the amount to be allocated equally to the parties from one third of the time to one half of the time. This is referred to above as the 50/50 modified approach.

If this approach were taken, based on the statistics of the 2015 general election, and after rounding to the nearest half-minute, the result would be as shown in Table 4. It should be noted that when this formula is applied, the total time allocated is 388 minutes. Therefore, to reach the statutory requirement of 390 minutes, 30 seconds was added to the allocation of each of the four parties with the largest allocation.

Table 4
Political Party Min:Sec
Liberal Party of Canada 90:00
Conservative Party of Canada 64:30
New Democratic Party 42:00
Green Party of Canada 19:30
Bloc Québécois 16:00
Libertarian Party of Canada 10:30
Marxist-Leninist Party of Canada 10:00
Christian Heritage Party of Canada 9:00
Communist Party of Canada 9:00
Forces et Démocratie 9:00
Rhinoceros Party 9:00
Alliance of the North 8:30
Animal Alliance Environment Voters Party of Canada 8:30
Canada Party 8:30
Canadian Action Party 8:30
Democratic Advancement Party of Canada 8:30
Marijuana Party 8:30
Party for Accountability, Competency and Transparency 8:30
Pirate Party of Canada 8:30
Progressive Canadian Party 8:30
Seniors Party of Canada 8:30
The Bridge Party of Canada 8:30
United Party of Canada 8:30
Total 390:00

This approach also generates a somewhat larger free time allocation for the smaller parties. The following table shows the approximate free time (rounded to the half-minute) that each registered party would receive if the 50/50 modified approach were taken with respect to paid time. These numbers were adjusted by 30 seconds or one minute for the five parties with the largest allocation in order to achieve the necessary free time totals for each network.

Table 5
Political Party CBC-TV
SRC-TV
Network/Réseau
Min:Sec
CBC Radio One
SRC Première chaîne
Network/Réseau
Min:Sec
TVA
V Télé
Network/Réseau
Min:Sec
Liberal Party of Canada 49:30 28:00 13:30
Conservative Party of Canada 35:30 20:00 10:00
New Democratic Party 23:30 13:00 6:00
Green Party of Canada 11:00 6:00 3:00
Bloc Québécois 9:00 5:00 2:30
Libertarian Party of Canada 6:00 3:00 1:30
Marxist-Leninist Party of Canada 5:30 3:00 1:30
Christian Heritage Party of Canada 5:00 3:00 1:30
Communist Party of Canada 5:00 3:00 1:30
Forces et Démocratie 5:00 3:00 1:30
Rhinoceros Party 5:00 3:00 1:30
Alliance of the North 4:30 2:30 1:30
Animal Alliance Environment Voters Party of Canada 4:30 2:30 1:30
Canada Party 4:30 2:30 1:30
Canadian Action Party 4:30 2:30 1:30
Democratic Advancement Party of Canada 4:30 2:30 1:30
Marijuana Party 4:30 2:30 1:30
Party for Accountability, Competency and Transparency 4:30 2:30 1:30
Pirate Party of Canada 4:30 2:30 1:30
Progressive Canadian Party 4:30 2:30 1:30
Seniors Party of Canada 4:30 2:30 1:30
The Bridge Party of Canada 4:30 2:30 1:30
United Party of Canada 4:30 2:30 1:30
Total 214:00 120:00 62:00

As can be seen from Table 4, if the 50/50 modified approach were taken, even the smallest parties would now receive at least eight minutes and 30 seconds of paid time. This is an increase of 50 percent over the amount they would get under the one-third modified approach. As shown in Table 5, their free time allocation would also increase by 50 percent.

Using the 10-minute mark as a minimum threshold, I note that under the 50/50 modified approach, even the smallest party will exceed this threshold if one combines the paid time allocation with the free time allocation that they will also be entitled to.

Is this enough for a small registered party to make a meaningful case to the public? Based on the record before me, I think the answer is yes. In reaching that conclusion, I note that added weight can always be achieved by buying the allocated paid time on more broadcast stations or services and not limiting oneself to a single station or network serving a market. And of course, parties can purchase more time than that allocated to them if a station agrees.

This approach continues to represent a middle ground, in that it seeks to provide a higher minimum amount for all parties, but still gives equal weight to the statutory factors. I am conscious that electoral reform may bring about a different approach to the allocation of paid and free time in the future. But as I noted in 2001, I consider that the proper forum for such a reform is Parliament.

Accordingly, I have concluded that the 50/50 modified approach, while giving a fair opportunity to the smaller registered parties to make a meaningful case, also gives equal weight to the statutory factors. I believe it best meets the public interest test at this time.

I wish to conclude, as I have done before, by thanking the registered parties for their participation in this exercise, which was useful and constructive.

Original signed by

Peter S. Grant
The Broadcasting Arbitrator
Toronto, July 13, 2016





Seal of the Broadcast Arbitrator

The Broadcasting Arbitrator

Suite 5300
Toronto-Dominion Bank Tower
Toronto, Ontario
M5K 1E6

Tel: 416-601-7620
Fax: 416-868-0673
Cell: 647-588-7620


2016 Allocation of paid time

Order

Following a meeting of the registered parties held on June 21, 2016, and pursuant to section 337(3) of the Canada Elections Act, I hereby allocate the broadcasting time to be made available under section 335 of the Act on the basis set forth in the Appendix.

July 13, 2016

Original signed by

Peter S. Grant
The Broadcasting Arbitrator


APPENDIX

Allocation of Broadcasting Time to Be Made Available by Every Broadcaster Under Section 335 of the Canada Elections Act for Purchase by Registered Parties, as Determined by the Broadcasting Arbitrator Under Section 337(3) of the Act

(Toronto, July 13, 2016)

Political Party Min:Sec
Liberal Party of Canada 90:00
Conservative Party of Canada 64:30
New Democratic Party 42:00
Green Party of Canada 19:30
Bloc Québécois 16:00
Libertarian Party of Canada 10:30
Marxist-Leninist Party of Canada 10:00
Christian Heritage Party of Canada 9:00
Communist Party of Canada 9:00
Forces et Démocratie 9:00
Rhinoceros Party 9:00
Alliance of the North 8:30
Animal Alliance Environment Voters Party of Canada 8:30
Canada Party 8:30
Canadian Action Party 8:30
Democratic Advancement Party of Canada 8:30
Marijuana Party 8:30
Party for Accountability, Competency and Transparency 8:30
Pirate Party of Canada 8:30
Progressive Canadian Party 8:30
Seniors Party of Canada 8:30
The Bridge Party of Canada 8:30
United Party of Canada 8:30
Total 390:00