Bell Canada v. Canada (Attorney General)

Bell Canada v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2016-09-02
Neutral citation
2016 FCA 217
File numbers
A-231-15, A-63-16, A-67-16
Notes
A correction was made on October 17, 2017
Digest
Decision Content
Date: 20160902
Dockets: A-231-15
A-63-16
A-67-16
Citation: 2016 FCA 217
CORAM:
GAUTHIER J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
A-231-15
BETWEEN:
BELL CANADA AND BELL MEDIA INC.
Appellants
and
ATTORNEY GENERAL OF CANADA
Respondent
and
NATIONAL FOOTBALL LEAGUE, NFL INTERNATIONAL LLC AND NFL PRODUCTIONS LLC
Interveners
A-63-16
BETWEEN:
NATIONAL FOOTBALL LEAGUE, NFL INTERNATIONAL LLC AND NFL PRODUCTIONS LLC
Appellants
and
ATTORNEY GENERAL OF CANADA
Respondent
A-67-16
BETWEEN:
BELL CANADA AND BELL MEDIA INC.
Appellants
and
ATTORNEY GENERAL OF CANADA
Respondent
and
TELUS CORPORATION
Respondent
Heard at Montréal, Quebec, on June 20, 2016.
Judgment delivered at Ottawa, Ontario, on September 2, 2016.
REASONS FOR JUDGMENT BY:
DE MONTIGNY J.A.
CONCURRED IN BY:
GAUTHIER J.A.
BOIVIN J.A.
Date: 20160902
Dockets: A-231-15
A-63-16
A-67-16
Citation: 2016 FCA 217
CORAM:
GAUTHIER J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
A-231-15
BETWEEN:
BELL CANADA AND BELL MEDIA INC.
Appellants
and
ATTORNEY GENERAL OF CANADA
Respondent
and
NATIONAL FOOTBALL LEAGUE, NFL INTERNATIONAL LLC AND NFL PRODUCTIONS LLC
Interveners
A-63-16
BETWEEN:
NATIONAL FOOTBALL LEAGUE, NFL INTERNATIONAL LLC AND NFL PRODUCTIONS LLC
Appellants
and
ATTORNEY GENERAL OF CANADA
Respondent
A-67-16
BETWEEN:
BELL CANADA AND BELL MEDIA INC.
Appellants
and
ATTORNEY GENERAL OF CANADA
Respondent
and
TELUS CORPORATION
Respondent
REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1] This is a consolidation of three statutory appeals under subsection 31(2) of the Broadcasting Act, S.C. 1991, c. 11 (the Broadcasting Act or the Act). The appellants are seeking to quash two broadcasting regulatory policies issued by the Canadian Radio-television and Telecommunications Commission (the Commission) regarding simultaneous substitution, in which the Commission enacted regulations providing remedies in case of errors in simultaneous substitution, and announced its intention to implement its policy not to permit simultaneous substitution during the broadcast of the Super Bowl, and for the general broadcast of specialty channels, starting in 2017.
[2] The three appeals were consolidated by order of this Court dated April 12, 2016, the appeal in file A-231-15 being designated as the lead appeal. In conformity with this order, the following reasons will be filed in the lead file and a copy thereof will be filed as Reasons for Judgment in file numbers A-63-16 and A-67-16.
[3] For the reasons that follow, I am of the view that these appeals should be dismissed.
I. Background [4] Simultaneous substitution has been an integral part of the Canadian broadcasting system for more than 40 years. It is a process by which the signal of a distant (usually American) station being broadcast in Canada is replaced by the signal of a local Canadian broadcaster that broadcasts comparable programming at the same time, such that Canadian viewers tuning to an American channel will in fact view the same program from a Canadian broadcaster, with Canadian commercials. This allows the broadcaster holding the rights to market the program in Canada to maximize its audience and advertising revenue.
[5] The simultaneous substitution regime is set out in the Broadcasting Distribution Regulations, S.O.R./97-555 (the Distribution Regulations). Pursuant to section 7, the general rule is that the signal of a programming service cannot be altered or deleted. As an exception, sections 38 and 51 of the Distribution Regulations permit or require the replacement of lower priority (usually American) signals with higher priority (usually local) signals if the programming service to be deleted and the programming service to be substituted are “comparable and simultaneously broadcast” (paras. 38(2)(a) and 51(1)(a) of the Distribution Regulations).
[6] In October 2013, the Commission announced the start of a broad public consultation initiative on the future of the television system entitled Let’s Talk TV: A Conversation with Canadians (Let’s Talk TV). That consultation proceeded in three phases: 1) an initial phase for collecting public input by a variety of means; 2) a second phase for compiling and sharing the information received, coupled with an interactive questionnaire; and 3) a third phase which provided more opportunities, including an oral hearing, for the public to provide input on proposals for new approaches to Canadian television regulation (see Notice of Invitation, Joint Appeal Book, vol. 2, Tab 6, pp. 413-415). The Commission announced the Let’s Talk TV process was intended to involve significant and fundamental changes to television regulation, in order to ensure that the broadcasting system continues to serve Canadians in light of a rapidly changing broadcasting environment.
[7] At the beginning of the third phase, the Commission issued the Broadcasting Notice of Consultation CRTC 2014-190 (Notice 2014-190), soliciting submissions and comments on specific issues, including simultaneous substitution. The Notice 2014-190 mentioned complaints regarding substitution errors particularly for live sports events, and complaints from viewers that would prefer to see American commercials at the Super Bowl, and sought comments on whether simultaneous substitution should be maintained, and how changes should be implemented. Shortly before the commencement of the public hearing that took place between September 8 and 19, 2014, the Commission released another Broadcasting Notice of Consultation CRTC 2014-190-3 and further requested comments on various proposals for the future regulation of the Canadian television system. On the issue of simultaneous substitution, the Commission set out two proposals for discussion. According to Option A, broadcasting distribution undertakings (BDU) would no longer be permitted to perform simultaneous substitution, whereas according to Option B, BDUs would not be permitted to perform simultaneous substitution for live event programming (e.g. sporting events or award shows).
[8] In Broadcasting Regulatory Policy CRTC 2015-25 issued on January 29, 2015 (the First Policy), the Commission announced that it would continue to allow simultaneous substitution generally, but would disallow its use for specialty channels (i.e. channels that are not broadcast over the air and to which viewers subscribe through a BDU) and the Super Bowl (starting at the 2016-2017 season), and would amend regulations to be able to remove simultaneous substitution privileges and require that licensees pay compensatory rebates when recurring, substantial errors occur in the simultaneous substitution process.
[9] In support of these determinations, the Commission reasoned that since the simultaneous substitution regime is an exception to the general rule against altering or deleting a programming service upon distribution, the “burden of proof” was on broadcasters and BDUs. In the Commission’s view, the record demonstrated that simultaneous substitution was still of significant benefit to Canadian broadcasters since it allowed them to monetize their investments in programming rights, and put that revenue towards developing Canadian programming. However, the Commission considered that the practice should no longer be allowed for specialty channels. It also stated that based on comments from the public and the fact that American advertising is an integral part of the Super Bowl, simultaneous substitution would not be allowed for this program starting in the 2016-2017 season. The Commission acknowledged that the current rights-holder’s contract extended beyond that time, but considered that this would provide it with a reasonable timeframe to make adjustments. Finally, the Commission stated that broadcasters and distributors have an obligation to ensure that simultaneous substitution is done properly, and that they are currently not meeting the required level of service. The Commission announced its intention to amend its regulations so that broadcasters making substitution errors can lose their simultaneous substitution privileges for a period of time or particular type of programming, and to require that BDUs that make such errors provide compensatory rebates to customers.
[10] The Commission did not specify how it would implement these policy reforms, except to say that it would issue a notice of consultation seeking comments on the text of the proposed amendments to the Distribution Regulations.
[11] On May 5, 2015, the Court granted Bell Canada and Bell Media Inc. (collectively referred to as Bell) leave to appeal from the First Policy in file number A-231-15. The NFL was given leave to intervene.
[12] Bell Canada is the parent company of Bell Media Inc., a broadcaster that holds exclusive broadcasting rights in Canada for the Super Bowl until the 2018-2019 season based on a contract concluded with NFL International LLC (NFLI) in 2013. They also broadcast certain specialty channels. Bell Canada is also the parent company of Bell ExpressVu Limited Partnership, a BDU that is a party to the proceedings in file numbers A-63-16 and A-67-16.
[13] The National Football League (the League) is an unincorporated association of 32 separately owned member clubs, each of which operates a professional football team. NFLI and NFL Productions LLC (Productions) are limited liability companies whose operations include producing, licensing and distributing programming relating to NFL football. The League, NFLI and Productions will be referred to collectively as the NFL.
[14] In this appeal, Bell and the NFL challenged the First Policy on the grounds of: i) denial of procedural fairness; ii) unlawful administrative law discrimination; iii) unauthorized retrospective regulation and interference with vested rights; iv) unreasonableness; and v) lack of jurisdiction to enact the regime addressing simultaneous substitution errors. The Attorney General also raised a number of issues as to whether the First Policy was a “decision” subject to appeal, and whether the appeal was premature.
[15] On July 23, 2015, the Commission issued Broadcasting Notice of Consultation CRTC 2015-330 (Notice 2015-330), together with Broadcasting Information Bulletin CRTC 2015-329 (Bulletin 2015-329) entitled “Simultaneous substitution errors”. These documents gave further details about changes that the Commission had decided to make to the simultaneous substitution regime, and requested comments on the draft regulations implementing penalties and rebates for simultaneous substitution errors, which the Commission had announced in its First Policy. The Bulletin 2015-329 indicated that the elimination of broadcasters’ simultaneous substitution rights for the Super Bowl would be implemented not by regulation, as stated in the First Policy, but by an order made under paragraph 9(1)(h) of the Broadcasting Act. Bell and the NFL provided comments in response to the Notice 2015-330.
[16] In Broadcasting Regulatory Policy CRTC 2015-513, issued on November 19, 2015 (the Second Policy), the Commission announced the enactment and coming into force of the Simultaneous Programming Service Deletion and Substitution Regulations, S.O.R./2015-240 (the Substitution Regulations) which implemented a regime to address substitution errors. The relevant provisions read as follows:
Decision by Commission
4(3) A licensee must not delete a programming service and substitute another programming service for it if the Commission decides under subsection 18(3) of the Broadcasting Act that the deletion and substitution are not in the public interest.
Décision du Conseil
4(3) Le titulaire ne peut retirer un service de programmation et y substituer un autre service de programmation si le Conseil rend une décision, en vertu du paragraphe 18(3) de la Loi sur la radiodiffusion, portant que le retrait et la substitution ne sont pas dans l’intérêt public.
Compensation
5(2) A licensee must provide compensation to its customers if the Commission decides under subsection 18(3) of the Broadcasting Act that the licensee deleted and substituted a programming service in a manner that, through its own actions, resulted in recurring substantial errors and did not establish that it exercised due diligence to avoid those errors.
Indemnisation
5(2) Le titulaire doit indemniser ses clients dans les cas où le Conseil rend une décision, en vertu du paragraphe 18(3) de la Loi sur la radiodiffusion, portant que le retrait et la substitution entraînent, en raison des agissements du titulaire, des erreurs substantielles récurrentes et que celui-ci n’a pas démontré avoir fait preuve de diligence afin de les éviter.
[17] With respect to the loss of the right to request simultaneous substitution provided at subsection 4(3) of the Substitution Regulations, the Commission noted that it already had the power under the previous simultaneous substitution regime to order that simultaneous substitution not be performed where it is not in the public interest. On compensatory rebates under subsection 5(2) of the Substitution Regulation, the Commission noted that this provision does not create a new power, but simply makes necessary amendments to ensure that the regime continues to fulfill its policy objectives. The Commission stated that this provision was remedial, and not equivalent to administrative monetary penalties. Finally, the Commission stated its intention to issue an order under paragraph 9(1)(h) of the Broadcasting Act to exclude the Super Bowl from the simultaneous substitution regime.
[18] After being granted leave, the NFL and Bell each filed appeals of the Second Policy, on February 24, 2016 (file number A-63-16) and February 29, 2016 (file number A-67-16) respectively. In these appeals, it is argued that the decision to prohibit simultaneous substitution at the Super Bowl by order is beyond the scope of the Commission’s jurisdiction under paragraph 9(1)(h) of the Broadcasting Act and conflicts with the Copyright Act, R.S.C. 1985, c. C-45 and a number of international treaties. They also made additional arguments regarding the Commission’s lack of jurisdiction to enact the Substitution Regulations. As previously mentioned, all three appeals were consolidated on April 12, 2016. Telus Corporation was granted limited participation rights as respondent in the consolidated appeal based on its participation in the underlying consultation process before the Commission.
[19] On February 3, 2016, the Commission issued Broadcasting Notice of Consultation CRTC-2016-37 (Notice 2016-37) inviting comments on a proposed distribution order to be made under paragraph 9(1)(h) of the Broadcasting Act that would prohibit simultaneous substitution for the Super Bowl, beginning with the 2017 broadcast of the Super Bowl.
II. Issues [20] The parties have submitted a number of issues with respect to both policies. In the first appeal, the Attorney General had submitted that the First Policy was not a “decision or order” within the scope of section 31 of the Broadcasting Act, pursuant to which an appeal lies only from a decision or order, and that the appeal was premature. As part of the Second Policy, the Substitution Regulations have been promulgated and the Commission has thereby rendered a final decision encompassing the form and substance of its policy determinations to implement a penalty and rebate regime for simultaneous substitution errors. Accordingly, the Attorney General has not raised in A-67-16 dealing with the Second Policy, a preliminary argument with respect to the remedial regime.
[21] The remaining issues to be decided in this appeal, therefore, can be framed as follows:
A. Is the appeal of the policy determination to eliminate simultaneous substitution for the Super Bowl and for specialty services premature?
B. Does the Commission lack jurisdiction to enact a remedial regime for simultaneous substitution errors?
III. Analysis A. Is the appeal of the policy determination to eliminate simultaneous substitution for the Super Bowl and for specialty services premature? [22] Pursuant to subsection 31(2) of the Broadcasting Act, an appeal to this Court lies only from a “decision or order” of the Commission. The Attorney General submits that the two policies, insofar as they pertain to disallow simultaneous substitution for the Super Bowl effective in 2017, are in the nature of statements of intent to exercise statutory powers in the future. As such, it is argued that they do not qualify as decisions or orders within the meaning of subsection 31(2). I agree.
[23] Bell contends that the Commission made a final and binding decision to disallow simultaneous substitution for the Super Bowl effective in 2017 and that such a decision is not open to reconsideration. It relies for that proposition on the wording used by the Commission, referring to that policy change as a “decision”. Under the heading “Implementation”, for instance, the Commission states in its First Policy that it will issue a notice of consultation “seeking comment on the text of proposed amendments to the Regulations required to enact the policy changes in this decision” (see First Policy; Joint Appeal Book, vol. 2, Tab 3, p. 243 at para. 23). Bell also noted in reply to the Attorney General’s argumentation on prematurity in A-231-15 that the Commission has not asked for comments on the substantive decision to disallow simultaneous substitution for the Super Bowl, but only on the text of proposed amendments to the Distribution Regulations required to implement its decision. In its latest Notice 2016-37, issued on February 3, 2016, the Commission initiated its Call for comments on a proposed distribution order prohibiting simultaneous substitution for the Super Bowl (Call for comments on the Super Bowl) and again reiterated that the proposed order would implement a Commission policy “decision” (Notice 2016-37, Joint Appeal Book, vol. 1, Tab F, p. 37).
[24] These arguments are far from determinative, for several reasons. First of all, the Commission also refers to the proposed change as a “statement of intent” or a “policy determination” (see, for example, the Second Policy, Joint Appeal Book, vol. 1, Tab G, pp. 47-49 at paras. 20 and 27). More importantly, it is the substance and the effect of the impugned “decision” that is of relevance, as opposed to the choice of words used by the Commission to refer to it.
[25] It is interesting to note that the Commission itself considered the arguments made by the NFL in response to its Call for comments on the proposed Simultaneous Programming Service Deletion and Substitution Regulations (Call for comments on the Substitution Regulations) to be premature, to the extent that it had not yet issued an order excluding the Super Bowl from the simultaneous substitution regime (Second Policy, Joint Appeal Book, vol. 1, Tab G, p. 48 at para. 26). As a matter of fact, the policy reform proposed by the Commission has no direct, immediate or legal effect on the appellants unless and until they are formally implemented through regulation or order. The Broadcasting Act clearly stipulates that statements and guidelines made by the Commission on any matter within its jurisdiction are not binding on the Commission (Broadcasting Act, s. 6). This is to be contrasted with section 7 of the same Act, according to which directions of general application on broad policy matters issued by the Governor in Council are binding on the Commission.
[26] This Court has held in a previous decision that policy guidelines issued by the Commission, albeit in the context of the Telecommunications Act, S.C. 1993, c. 38 (the Telecommunications Act), cannot be assimilated to “decisions” (see Canadian Institute of Public and Private Real Estate Co. v. Bell Canada, 2004 FCA 243, [2004] F.C.J. No. 1103 [Canadian Institute]). In that case, the Commission imposed a condition on all local exchange carriers providing local telephone services to customers in multi-dwelling units (MDU), but expressly declined to impose such conditions on the private owners of MDUs. Instead, it set out guidelines that should assist parties in their negotiation of access arrangements on the basis of just and expedient conditions, and stated that if negotiations did not succeed it would take such further action as is appropriate, and if necessary make an order. The Court agreed with the respondents that policy guidelines issued by the Commission are not “decisions” within the meaning of subsection 64(1) of the Telecommunications Act, which is substantially to the same effect as subsection 31(2) of the Broadcasting Act. The Court wrote:
Subsection 64(1) of the Act provides a right of appeal from a “decision” of the CRTC on questions of law or jurisdiction with the leave of this Court. The Order of this Court granting leave to appeal was made without prejudice to the respondents’ right to argue that this Court does not have the jurisdiction to hear the appeal and that the appeal was premature. In our opinion, this Court does not have the jurisdiction to hear this appeal because the statements by the CRTC regarding its jurisdiction in future cases do not constitute a “decision” within the meaning of subsection 64(1) of the Act. The CRTC has not imposed any binding conditions or orders affecting the legal rights of private owners of MDUs. (…) It has simply stated, that, depending on the circumstances, it would be prepared to make such an order in the future. It did not articulate in which circumstances an order would be appropriate nor the terms that would be included in a particular order.
Canadian Institute, para. 5
[27] Counsel for Bell submits that the case at bar can be distinguished from Canadian Institute because the Commission itself has stated that it has made a decision on the matters that are the subject of the appeal. It is true that the Commission appears to have made up its mind and to be set on implementing its policy decision. Until it has done so, however, it is of no consequence with respect to this proceeding. The Commission itself has made it very clear on more than one occasion that its policy determinations will be implemented through regulation or order (see, for example, Notice 2015-330, Joint Appeal Book, vol. 1, Tab H at pp. 54 and 56; Bulletin 2015-329, Joint Appeal Book, vol. 1, Tab I at pp. 65 and 69).
[28] The rationale underlying Canadian Institute is that, at least for the purposes of subsection 64(1) of the Telecommunications Act (and, by extension, of subsection 31(2) of the Broadcasting Act), a decision is characterized by the imposition of “binding conditions or orders affecting the legal rights” of a party. Put otherwise, a statement about how an administrative decision-maker intends to act in the future has no legal effect. The cases relied upon by Bell in support of its argument do not detract from that principle and indeed underscores the general rule that decisions and orders must be final in nature to be considered by courts of law (see Brink’s Canada Ltd. v. Canada (Human Rights Commission), [1996] 2 F.C.R. 113at paras. 46 and 51, 105 F.T.R. 215 (F.C.T.D.); Ipsco Inc. v. Sollac, Aciers d’Usinor, 1999 CarswellNat 1026 at para. 4, 1999 CanLII 8080 (F.C.A.); Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 at paras. 24-41, [2015] 4 F.C.R. 467; Tomen v. Ontario Teachers’ Federation, 1994] O.J. No. 1585 at para. 26, 19 O.R. (3d) 371 (Gen. Div.). In fact, policy “decisions” of the Commission, like the First Policy, share many of the characteristics of White Papers, whereby governments present their policy preferences before tabling legislation and seek reactions from stakeholders and all those affected by the contemplated policy change. These are clearly not justiciable, and the same goes for the impugned policies of the Commission insofar as they have not been implemented by regulation or order.
[29] There are also sound policy reasons for this Court not to intervene at such an early stage of the process. First, as submitted by the respondent, the Court does not have the full record to assess the scope of the Commission’s authority. It is to be expected that the Commission, as a result of its Call for comments on the Super Bowl under Notice 2016-37, will refine its analysis and offer its rationale to support whatever order it may come up with after considering the appellants’ arguments. This Court should defer to Commission’s expertise, experience and reasoning before coming to its own conclusions on the validity of such an order (see Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245 at paras. 42-44, [2015] 4 F.C.R. 75). The process should follow its course and the appellants should not be allowed to sidestep it by bringing what amounts for all intents and purposes to a request for a judicial opinion. The Commission has the authority pursuant to section 17 of the Broadcasting Act to determine questions of law, which extends to resolving questions about its own jurisdiction. I would therefore agree with the respondent that this Court should have before it the Commission’s own analysis of the appellants’ arguments for the proper exercise of its appellate functions.
[30] Moreover, the history of this proceeding shows that much could still happen before the Commission actually implements its policy decision. As previously mentioned, the Commission first announced its intention to eliminate simultaneous substitution for the Super Bowl by way of an amendment to the Distribution Regulations (see First Policy, Joint Appeal Book, vol. 2, Tab 3, p. 243 at paras. 22-23). Then, the Commission reversed its course and announced that simultaneous substitution would be eliminated for the Super Bowl through an order pursuant to paragraph 9(1)(h) of the Broadcasting Act (see Second Policy, Joint Appeal Book, vol. 1, Tab G, p. 48 at para. 27).
[31] Counsel for Bell counters that the Commission has not sought comments on the substantive decision that it made, but only on the text of the proposed distribution order regarding simultaneous substitution for the Super Bowl. While this is no doubt true, strictly speaking, it would not preclude the Commission from deciding not to pursue its course of action, or alternatively from altering the order to either broaden its scope (e.g., to capture other types of events) or to make it effective only at the expiry of the agreement between the NFL and Bell. The result of the consultation should not be prejudged, and the administrative process should follow its course before the Court is called upon to adjudicate what may well turn out to be a moot issue. This is not only more respectful of the specialized body put in place by Parliament to oversee the regulatory regime applying to a complex field of activity, but it is also a better use of scarce judicial resources.
[32] Bell also submitted that the appellants will be left without any effective means of challenging the policy decisions of the Commission if this appeal is dismissed for being premature. Again, this argument is premised on the notion that there are two distinct decisions being made by the Commission, the first one being the policy determination and the second one being its implementation by order or otherwise. Yet, as I have tried to demonstrate in the preceding paragraphs of these reasons, this is all part of an ongoing process that will eventually culminate with the enactment of an order. I fail to see how Bell could be estopped from appealing such an order, should one come to be made, especially in light of this appeal being dismissed (with respect to the simultaneous substitution for the Super Bowl) on the basis of it being premature.
[33] The NFL also argued that this appeal will be moot if the validity of an order prohibiting simultaneous substitution for the Super Bowl is not decided before the next Super Bowl in February 2017. It is obviously in the interest of all potentially affected parties that the Commission arrives at a final decision long before February 2017 to allow for a timely application for leave to appeal. In any event, and as conceded by counsel for the NFL, a motion for a stay and for an expedited hearing could be filed before this Court if time was of the essence.
[34] For all of the foregoing reasons, I am of the view that an appeal does not lie pursuant to subsection 31(2) of the Broadcasting Act with respect to what was, at the time of the hearing, an anticipated proposed distribution order or regulation prohibiting simultaneous substitution for the Super Bowl. The Court has been informed that, subsequent to the hearing of this matter, the Commission released on August 19, 2016 its Broadcasting Regulatory Policy CRTC 2016-334 and Broadcasting Order CRTC 2016-335. Pursuant to paragraph 9(1)(h) of the Broadcasting Act, the Commission issued a distribution order through which simultaneous substitution will no longer be authorized for the Super Bowl, effective January 1, 2017. The panel, however, is not seized of that Order and ought not to express any views as to its legality.
[35] The same reasoning applies with even more strength concerning the policy determination to disallow simultaneous substitution for the benefit of specialty channels. In its Notice of Appeal in file number A-231-15, Bell submits that it was denied procedural fairness as a result of the Commission’s failure to give it notice of the prohibitions that it proposed to implement with respect to specialty channels and its after-the-fact imposition of a burden of proof on broadcasters and BDUs to show that simultaneous substitution continues to have merit. I note that this ground of appeal was not raised by Bell in file number A-67-16.
[36] It would be most inappropriate to assess the adequacy of a consultation process before it has even been completed. In its First Policy, the Commission disclosed its view that BDUs should no longer be allowed to provide simultaneous substitution for specialty services, and indicated that it will amend the Distribution Regulations accordingly (First Policy, Joint Appeal Book, vol. 2, Tab G, p. 47 at para. 18). Under the heading “Implementation”, it also stated that it will issue a notice of consultation seeking comment on the text of proposed amendments to the Distribution Regulations required to enact the policy changes in that decision. As mentioned previously, a Call for comments on the Super Bowl was eventually made on a proposed distribution order prohibiting simultaneous substitution for the Super Bowl, but no such consultation has been launched so far with respect to proposed amendments to the Distribution Regulations designed to implement a policy change relating to simultaneous substitution for specialty channels. As a result, we are even further removed from the implementation of this policy change than we are from the implementation of an order prohibiting simultaneous substitution for the Super Bowl.
[37] In any event, although this is not strictly necessary given my views on prematurity, I would venture to add that there has been no breach of procedural fairness by the Commission. Applying the factors developed in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 23-28, 174 D.L.R. (4th) 193 to determine the content of procedural fairness obligations in a particular context, I am of the view that the requirements are minimal in the circumstances of the present case. The “decision” to be made by the Commission is in the nature of a policy “decision”, which calls for the exercise of considerable discretion and the consideration of multiple polycentric factors. This is not the kind of decision that typically attracts a high level of procedural fairness. Bell was entitled to have its views heard and taken into account, but had no legitimate expectation of a particular outcome.
[38] Having carefully reviewed the record, it is clear that Bell was given fair notice that the entire practice of simultaneous substitution was up for discussion, and was made aware of the concerns raised by Canadians during Phase I and II of the Let’s Talk TV consultation process. Prior to the public hearing that commenced on September 8, 2014, the Commission summarized those concerns and specifically referenced Canadians’ preference for seeing American commercials during the Super Bowl (see Notice 2014-190 at paras. 54-61). With respect to the elimination of simultaneous substitution for specialty services and to the institution of a remedial regime, it appears from the transcript that the issue was specifically raised by the Commission during Bell’s presentation (see Transcript of Bell’s Oral Submissions, paras. 5329-5341 and 5358, Joint Appeal Book, vol. 11, Tab 69, pp. 3392-3393). It cannot be said, therefore, that Bell was not given notice of the issues examined by the Commission and of the potential remedies that were being considered. Bell was provided every opportunity to make representations and to alert the Commission of the foreseeable impacts of its decision, and was in no way precluded from doing so merely because the Commission did not spell out all the conceivable outcomes of the consultation.
B. Does the Commission lack jurisdiction to enact a remedial regime for simultaneous substitution errors? [39] Turning to the second appeal of Bell concerning the promulgation of the Substitution Regulations, it is well established that regulations, just like statutes, benefit from a presumption of validity. As a result, it is for the appellants to demonstrate the invalidity of the challenged regulation, and the Court will prefer, to the extent possible, the construction of the regulation that will render it intra vires (see Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64at paras. 25-26, [2013] 3 S.C.R. 810; John Mark Keyes, Executive Legislation, 2d ed. (Markham: LexisNexis, 2010), at pp. 544-550 [Keyes, Executive Legislation]; Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada, loose-leaf (Toronto: Cavasback Publishing, 2009) at 15:3200 and 15:3230. Needless to say, the economic or political underpinnings of a regulation do not form part of the inquiry to be conducted by this Court in assessing its validity, nor does the likelihood of its success in achieving its stated objectives (Thorne’s Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106 at pp. 112-113, 143 D.L.R. (3d) 577; CKOY Ltd. v. The Queen, [1979] 1 S.C.R. 2 at p. 12, 90 D.L.R. (3d) 1 [CKOY]; Keyes, Executive Legislation at p. 266).
[40] Bell argues that the Commission has no jurisdiction to impose penalties or require the payment of monetary rebates to compensate for errors made during the simultaneous substitution process. The Attorney General has conceded that subsection 18(3) of the Broadcasting Act, pursuant to which the Commission may “issue any decision (…) in connection with any complaint or representation made to the Commission or in connection with any other matter within its jurisdiction under [the] Act” is not sufficient to ground the validity of the remedial regime enacted by the Commission. This type of “basket clause” is informed by the statutory context in which it is found, as submitted by Bell; although section 18 addresses hearings and procedure before the Commission, it has nothing to do with penalties or rebates. A matter must otherwise be within the jurisdiction of the Commission before it can exercise its authority to hear and decide a complaint.
[41] Bell further contends that the power to impose remedies such as penalties and rebates must be conferred explicitly by Parliament to the Commission, as is the case in the Telecommunications Act at sections 72-001 to 72.2. No such power is found in the Broadcasting Act, according to Bell. Pursuant to section 12 of the Broadcasting Act, the Commission is only empowered to issue an order requiring or forbidding a person to do any act or thing that the person is required or forbidden to do under the Act; such an order may be made and enforced as an order of the Federal Court or of any superior court of a province, and is enforceable in the same manner as an order of that court (see s. 13 of the Broadcasting Act). The contravention of a regulation or an order is also a summary conviction offence pursuant to subsection 32(2) of the Broadcasting Act. These are the only penalties explicitly provided for in the Act.
[42] Whether the Commission has the authority to enact the remedial regime at stake in the case at bar is to be decided on a standard of reasonableness. Despite Bell’s argument to the contrary, it is beyond dispute, in my view, that deference is owed to an administrative body’s interpretation of its home statute. Not only has this principle been firmly established by the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 54, [2009] 1 S.C.R. 190 and reiterated ever since (see, for example, Smith v. Alliance Pipeline Ltd, 2011 SCC 7 at para. 28, [2011] 1 S.C.R. 160; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 30, [2011] 3 S.C.R. 654; McLean v. British Columbia (Securities Commission), 2013 SCC 67 at para 33, [2013] 3 SCR 895), but this Court has confirmed in Bell Canada v. Amtelecom Limited Partnership, 2015 FCA 126 at paras. 37-39 that the expertise of the Commission extends to the delineation of its own jurisdiction in applying its home statutes. Accordingly, this Court shall only intervene if the Commission’s construction of its delegated powers falls outside the range of possible and acceptable outcomes.
[43] There is a long-standing principle that a pecuniary burden cannot be imposed on a person except upon clear and distinct legal authority (Liverpool Corp. v. Arthur Maiden Ltd., [1938] 4 All E.R. 200; Canadian Cable Television Association v. American College Sports Collective of Canada Inc., [1991] 3 F.C. 626, [1991] F.C.J. No. 502 (F.C.A.). This is precisely why administrative monetary penalties schemes, such as the one found in the Telecommunications Act at sections 72.001 to72.2, are explicitly authorized by statute (see generally Law Reform Commission of Saskatchewan, Administrative Penalties: A Consultation Paper (June 2009), citing a number of pieces of legislation containing such schemes, including The Securities Act, 1988, S.S. 1988-89, c. S-42.2; Securities Act, R.S.O. 1990, c. S.5; The Saskatchewan Insurance Act, R.S.S. 1978, c. S-26; The Trust and Loan Corporations Act, 1997, S.S. 1997, c. T-22.2; and The Alcohol and Gaming Regulation Act, 1997, S.S. 1997, c. A-18.011).
[44] The Commission, in its various decisions, and the Attorney General, in its written and oral submissions, contend that the remedial regime set out in its Substitution Regulations is not punitive but rather aims only to serve the public interest and to further the policy objectives of the Broadcasting Act. In Bulletin 2015-329, the Commission stated that the forthcoming amendments to the simultaneous substitution regime were meant “to ensure that the policy objectives of the Act continue to be achieved”, and that they were “not intended to be punitive”. It added that “their sole purpose is to provide a remedy to particular members of the broadcasting system in order to make sure that the system, as a whole, continues to achieve the objectives of the Act…” (see Bulletin 2015-329, Joint Appeal Book, vol. 1, Tab I, pp. 66-67).
[45] In its Second Policy announcing that it had made the Substitution Regulations, the Commission reiterated that the simultaneous substitution regime generally fulfills an important role in achieving the policy objectives of