Bell Canada v. Canada (Attorney General)

Bell Canada v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2019-12-19
Neutral citation
2019 SCC 66
Report
[2019] 4 SCR 845
Case number
37896, 37897
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Notes
Case in Brief
SCC Case Information: 37896, 37897
Decision Content
SUPREME COURT OF CANADA
Citation: Bell Canada v. Canada (Attorney General), 2019 SCC 66, [2019] 4 S.C.R. 845
Appeals Heard: December 4, 5, 6, 2018 Judgment Rendered: December 19, 2019 Dockets: 37896, 37897
Between:
Bell Canada and Bell Media Inc.
Appellants
and
Attorney General of Canada
Respondent
- and -
Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Saskatchewan, Canadian Radio-television and Telecommunications Commission, Telus Communications Inc., Advocacy Centre for Tenants Ontario - Tenant Duty Counsel Program, Ontario Securities Commission, British Columbia Securities Commission, Alberta Securities Commission, Ecojustice Canada Society, Workplace Safety and Insurance Appeals Tribunal (Ontario), Workers’ Compensation Appeals Tribunal (Northwest Territories and Nunavut), Workers’ Compensation Appeals Tribunal (Nova Scotia), Appeals Commission for Alberta Workers’ Compensation, Workers’ Compensation Appeals Tribunal (New Brunswick), British Columbia International Commercial Arbitration Centre Foundation, Council of Canadian Administrative Tribunals, National Academy of Arbitrators, Ontario Labour-Management Arbitrators’ Association, Conférence des arbitres du Québec, Canadian Labour Congress, National Association of Pharmacy Regulatory Authorities, Queen’s Prison Law Clinic, Advocates for the Rule of Law, Cambridge Comparative Administrative Law Forum, Association of Canadian Advertisers, Alliance of Canadian Cinema, Television and Radio Artists, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Canadian Bar Association, Blue Ant Media Inc., Canadian Broadcasting Corporation, DHX Media Ltd., Groupe V Média inc., Independent Broadcast Group, Aboriginal Peoples Television Network, Allarco Entertainment Inc., BBC Kids, Channel Zero, Ethnic Channels Group Ltd., Hollywood Suite, OUTtv Network Inc., Stingray Digital Group Inc., TV5 Québec Canada, ZoomerMedia Ltd., Pelmorex Weather Networks (Television) Inc. and First Nations Child & Family Caring Society of Canada
Interveners
And Between:
National Football League, NFL International LLC and NFL Productions LLC
Appellants
and
Attorney General of Canada
Respondent
- and -
Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Saskatchewan, Canadian Radio-television and Telecommunications Commission, Telus Communications Inc., Advocacy Centre for Tenants Ontario - Tenant Duty Counsel Program, Ontario Securities Commission, British Columbia Securities Commission, Alberta Securities Commission, Ecojustice Canada Society, Workplace Safety and Insurance Appeals Tribunal (Ontario), Workers’ Compensation Appeals Tribunal (Northwest Territories and Nunavut), Workers’ Compensation Appeals Tribunal (Nova Scotia), Appeals Commission for Alberta Workers’ Compensation, Workers’ Compensation Appeals Tribunal (New Brunswick), British Columbia International Commercial Arbitration Centre Foundation, Council of Canadian Administrative Tribunals, National Academy of Arbitrators, Ontario Labour-Management Arbitrators’ Association, Conférence des arbitres du Québec, Canadian Labour Congress, National Association of Pharmacy Regulatory Authorities, Queen’s Prison Law Clinic, Advocates for the Rule of Law, Cambridge Comparative Administrative Law Forum, Association of Canadian Advertisers, Alliance of Canadian Cinema, Television and Radio Artists, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Canadian Bar Association and First Nations Child & Family Caring Society of Canada
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Joint Reasons for Judgment: (paras. 1 to 59)
Joint Dissenting Reasons: (paras. 60 to 97)
Wagner C.J. and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ.
Abella and Karakatsanis JJ.
bell canada v. canada (a.g.)
Bell Canada and
Bell Media Inc. Appellants
v.
Attorney General of Canada Respondent
and
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of British Columbia,
Attorney General of Saskatchewan,
Canadian Radio‑television and Telecommunications Commission,
Telus Communications Inc.,
Advocacy Centre for Tenants Ontario - Tenant Duty Counsel Program,
Ontario Securities Commission,
British Columbia Securities Commission,
Alberta Securities Commission,
Ecojustice Canada Society,
Workplace Safety and Insurance Appeals Tribunal (Ontario),
Workers’ Compensation Appeals Tribunal (Northwest Territories and Nunavut), Workers’ Compensation Appeals Tribunal (Nova Scotia),
Appeals Commission for Alberta Workers’ Compensation,
Workers’ Compensation Appeals Tribunal (New Brunswick),
British Columbia International Commercial Arbitration Centre Foundation, Council of Canadian Administrative Tribunals,
National Academy of Arbitrators,
Ontario Labour‑Management Arbitrators’ Association,
Conférence des arbitres du Québec,
Canadian Labour Congress,
National Association of Pharmacy Regulatory Authorities,
Queen’s Prison Law Clinic,
Advocates for the Rule of Law,
Cambridge Comparative Administrative Law Forum,
Association of Canadian Advertisers,
Alliance of Canadian Cinema, Television and Radio Artists,
Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic,
Canadian Bar Association,
Blue Ant Media Inc.,
Canadian Broadcasting Corporation,
DHX Media Ltd.,
Groupe V Média inc.,
Independent Broadcast Group,
Aboriginal Peoples Television Network,
Allarco Entertainment Inc.,
BBC Kids,
Channel Zero,
Ethnic Channels Group Ltd.,
Hollywood Suite,
OUTtv Network Inc.,
Stingray Digital Group Inc.,
TV5 Québec Canada,
ZoomerMedia Ltd.,
Pelmorex Weather Networks (Television) Inc. and
First Nations Child & Family Caring Society of Canada Interveners
‑ and ‑
National Football League,
NFL International LLC and NFL Productions LLC Appellants
v.
Attorney General of Canada Respondent
and
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of British Columbia,
Attorney General of Saskatchewan,
Canadian Radio‑television and Telecommunications Commission,
Telus Communications Inc.,
Advocacy Centre for Tenants Ontario - Tenant Duty Counsel Program,
Ontario Securities Commission,
British Columbia Securities Commission,
Alberta Securities Commission,
Ecojustice Canada Society,
Workplace Safety and Insurance Appeals Tribunal (Ontario),
Workers’ Compensation Appeals Tribunal (Northwest Territories and Nunavut),
Workers’ Compensation Appeals Tribunal (Nova Scotia),
Appeals Commission for Alberta Workers’ Compensation,
Workers’ Compensation Appeals Tribunal (New Brunswick),
British Columbia International Commercial Arbitration Centre Foundation,
Council of Canadian Administrative Tribunals,
National Academy of Arbitrators,
Ontario Labour‑Management Arbitrators’ Association,
Conférence des arbitres du Québec,
Canadian Labour Congress,
National Association of Pharmacy Regulatory Authorities,
Queen’s Prison Law Clinic,
Advocates for the Rule of Law,
Cambridge Comparative Administrative Law Forum,
Association of Canadian Advertisers,
Alliance of Canadian Cinema, Television and Radio Artists,
Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic,
Canadian Bar Association and
First Nations Child & Family Caring Society of Canada Interveners
Indexed as: Bell Canada v. Canada (Attorney General)
2019 SCC 66
File Nos.: 37896, 37897.
2018: December 4, 5, 6; 2019: December 19.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the federal court of appeal
Administrative law — Appeals — Boards and tribunals — Regulatory boards — Jurisdiction — CRTC deciding that simultaneous substitution regime does not apply to Super Bowl broadcast — Canadians therefore able to view American commercials aired during Super Bowl — Whether CRTC had authority to prohibit simultaneous substitution for Super Bowl — Framework for determining applicable standard of review set out in Vavilov applied — Broadcasting Act , S.C. 1991, c. 11, s. 9(1) (h).
For more than 40 years, the NFL’s Super Bowl game, which is played in the United States, had been broadcast in Canada in accordance with the “simultaneous substitution” regime. This regime, set out in various regulations made under the Broadcasting Act , allows for a television service provider to temporarily delete and replace the entire signal of a distant (usually national or international) television station with the signal of another (usually local) television station that is airing the same program at the same time. Simultaneous substitution is permitted by the CRTC to allow Canadian broadcasters to realize greater advertising revenues; since simultaneous substitution allows local television stations to maximize their audiences for specific programs, those stations are able to charge advertisers more for in-program commercials. Because the Canadian broadcast of the Super Bowl had been subject to the applicable simultaneous substitution regime, Canadians were prevented from viewing high-profile American commercials that were aired in the U.S. broadcast of the game.
In 2013, the CRTC initiated a broad public consultation for the purpose of reviewing the entire framework for the regulation of television in Canada. As part of this consultation, it held a public hearing seeking comments on simultaneous substitution, through which Canadians expressed frustration over their inability to see high-profile commercials aired on the U.S. broadcast of the Super Bowl. In August 2016, pursuant to s. 9(1) (h) of the Broadcasting Act , the CRTC issued an order (“Order”) prohibiting simultaneous substitution for the Super Bowl as of January 1, 2017, supported by reasons (“Decision”). This meant that Canadians would be free to view the U.S. broadcast that features American commercials. Bell and the NFL sought leave to appeal the Decision and Order to the Federal Court of Appeal pursuant to s. 31(2) of the Broadcasting Act . Leave was granted but their appeals were unanimously dismissed.
Held (Abella and Karakatsanis JJ. dissenting): The appeals should be allowed and the Decision and Order of the CRTC quashed.
Per Wagner C.J. and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ.: The Order was issued on the basis of an incorrect interpretation by the CRTC of the scope of its authority under s. 9(1) (h) of the Broadcasting Act . Properly interpreted, this provision only authorizes the issuance of mandatory carriage orders — orders that require television service providers to carry specific channels as part of their cable or satellite offerings — that include specified terms and conditions. It does not empower the CRTC to impose terms and conditions on the distribution of programming services generally. Accordingly, because the Order does not actually mandate that television service providers distribute a channel that broadcasts the Super Bowl, but instead simply imposes a condition on those that already do, its issuance was not authorized by s. 9(1) (h) of the Broadcasting Act .
The applicable standard of review of the CRTC’s Order and Decision must be determined in accordance with the framework set out in Vavilov. Given that the CRTC’s Order and Decision have been challenged by way of the statutory appeal mechanism provided for in s. 31(2) of the Broadcasting Act , which allows for an appeal to be brought to the Federal Court of Appeal, with leave, on a question of law or a question of jurisdiction, the appellate standards of review apply in this case. And because the issues in these appeals raise legal questions that go directly to the limits of the CRTC’s statutory grant of power, that is, that the CRTC lacked the authority under s. 9(1) (h) to issue the Order, and therefore plainly fall within the scope of the statutory appeal mechanism set out in s. 31(2) , the applicable standard is correctness.
The scope of the CRTC’s authority under s. 9(1) (h) of the Broadcasting Act is to be determined by interpreting that provision in accordance with the modern approach to statutory interpretation. This approach requires the words of the statute be read in their entire context and in their grammatical and ordinary sense harmonious with the scheme of the Act, the object of the Act, and the intention of Parliament. Interpreted in accordance with text, context and purpose of s. 9(1) (h), the CRTC’s authority is limited to issuing orders that require television service providers to carry specific channels as part of their service offerings, and attaching terms and conditions to such mandatory carriage orders. Section 9(1) (h) does not give the CRTC a broad power to impose conditions outside the context of a mandatory carriage order. The wording of the provision indicates that the primary power delegated to the CRTC is to mandate that television service providers carry specific programming services as part of their cable or satellite offerings, and that the secondary power relates to the imposition of terms and conditions on such mandatory carriage orders. The statutory context surrounding s. 9(1) (h), notably the powers under ss. 9(1) (b), 9(1) (g) and 10, supports this conclusion as to its scope; the existence of these specific powers weighs against reading s. 9(1) (h) as conferring a general power to impose terms and conditions on any carriage of programming services. This interpretation is also confirmed by the purpose for which s. 9(1) (h) was enacted, and by the legislative history of the provision.
Because the CRTC did not purport, in the Order, to mandate the carriage of any particular programming services, but instead sought to add a condition that must be fulfilled should a television service provider carry a Canadian station that broadcasts the Super Bowl, the issuance of that Order was not within the scope of its delegated power under s. 9(1) (h) of the Broadcasting Act . The Order should therefore be quashed, as well as the Decision; however, no view is expressed as to whether the CRTC could do so pursuant to some other statutory power.
Per Abella and Karakatsanis JJ. (dissenting) : The appeals should be dismissed. The CRTC reasonably interpreted s. 9(1) (h) of the Broadcasting Act , and its Super Bowl Order was reasonable and defensible in light of the facts and law.
As a general rule, administrative decisions are to be reviewed for reasonableness. When conducting reasonableness review, a court assesses whether the decision as a whole is reasonable, viewed in light of the reasons given, the decision-making context and the grounds on which it is challenged. Reviewing courts should pay particular attention to the consequences, operational implications and challenges identified by the decision-maker. Because judicial substitution is incompatible with reasonableness review, the reviewing court must not begin its analysis by asking how it would have decided the issue. Rather, the reviewing court defers to any reasonable interpretation adopted by an administrative decision-maker, even if other reasonable interpretations may exist.
The majority’s framework disregards the significance of specialized expertise and results in a broad application of the standard of correctness. None of the correctness exceptions apply to the CRTC’s decision and reasonableness review is consistent with the highly specialized expertise of the CRTC. As an archetype of an expert administrative body, the CRTC’s specialized expertise is well-settled. Extensive statutory powers have been granted to this regulatory body, and an exceptionally specialized mandate requires the CRTC to consider and balance complex public interest considerations in regulating an entire industry. The need for an expert body to balance sensitive public interest issues in a highly technical context is particularly evident in this case, with the record containing a series of public notices, consultations and policies spanning almost three years and leading to the decision at issue.
Under reasonableness review, Bell and the NFL bear the onus of demonstrating that the CRTC’s decision, as a whole, is unreasonable. They have not met their burden. The reasons provided by the CRTC in the Order and accompanying regulatory policy set out a rational and persuasive line of reasoning which clearly outlines the consequences, operational implications and challenges that motivated its decision. While Bell and the NFL submit that the term “programming services” in s. 9(1) (h) cannot support the issuance of an order with terms and conditions that relate to a single program, it is agreed that “programming services” could relate to a single program in this context. In addition, the Order attached a condition to the carriage of Canadian television stations and was, by its own terms, structured to apply to programming services — a reflection of how simultaneous substitution is actually performed. The CRTC’s reasoning engaged its specialized and technical knowledge, leading to an interpretation that was reasonable in this operational context. The CRTC also evidently considered s. 9(1) (h) in its context, including not only the objectives of the Broadcasting Act but also its broader statutory framework. The CRTC made clear that its decision was weighed — and ultimately justified — in light of much broader policy determinations and the CRTC’s duty to regulate the system as a whole. It is not for a court to engage in weighing competing policy objectives and substituting its own view in deciding which policy objectives should be pursued in the public interest. Finally, the CRTC’s interpretation of s. 9(1) (h) of the Broadcasting Act does not conflict with the Copyright Act and Canada’s treaty obligations. The CRTC reasonably interpreted s. 9(1) (h) of the Broadcasting Act and its Super Bowl Order was reasonable.
Cases Cited
By Wagner C.J. and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ.
Applied: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; referred to: Reference re Broadcasting Regulatory Policy CRTC 2010‑167 and Broadcasting Order CRTC 2010‑168, 2012 SCC 68, [2012] 3 S.C.R. 489; Bell Canada v. Canada (Attorney General), 2016 FCA 217, 402 D.L.R. (4th) 551; Bell Canada v. 7262591 Canada Ltd., 2018 FCA 174, 428 D.L.R. (4th) 311; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579.
By Abella and Karakatsanis JJ. (dissenting)
Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Reference re Broadcasting Regulatory Policy CRTC 2010‑167 and Broadcasting Order CRTC 2010‑168, 2012 SCC 68, [2012] 3 S.C.R. 489; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895.
Statutes and Regulations Cited
Broadcasting Act , S.C. 1991, c. 11, ss. 3 , Part II, 5(1), 9, 10, 18(3), 26(2), 31(2), 32, 33.
Broadcasting Distribution Regulations, SOR/97‑555, ss. 7, 17(1)(g), 18(3)(a), 19(2)(d), 38(4) [rep. SOR/2015‑240, s. 7], 41(1)(b), 46(3)(b), 47(2)(a.1), 49(2)(a)(i), 51(3) [idem, s. 9].
Canadian Radio‑television and Telecommunications Commission Act , R.S.C. 1985, c. C‑22, s. 12(1) .
Copyright Act , R.S.C. 1985, c. C‑42, s. 31(2) .
Interpretation Act , R.S.C. 1985, c. I‑21, s. 33(2) .
Simultaneous Programming Service Deletion and Substitution Regulations, SOR/2015‑240, ss. 3, 4.
Telecommunications Act , S.C. 1993, c. 38 .
Authors Cited
Armstrong, Robert. Broadcasting Policy in Canada, 2nd ed. Toronto: University of Toronto Press, 2016.
Canada. Canadian Radio-television and Telecommunications Commission. Broadcasting Decision CRTC 2005-195, May 12, 2005 (online: https://crtc.gc.ca/eng/archive/2005/db2005-195.htm; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC66_1_eng.pdf).
Canada. Canadian Radio-television and Telecommunications Commission. Broadcasting Information Bulletin CRTC 2015-329, July 23, 2015 (online: https://crtc.gc.ca/eng/archive/2015/2015-329.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC66_7_eng.pdf).
Canada. Canadian Radio-television and Telecommunications Commission. Broadcasting Notice of Consultation CRTC 2014-190, April 24, 2014 (online: https://crtc.gc.ca/eng/archive/2014/2014-190.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC66_3_eng.pdf).
Canada. Canadian Radio-television and Telecommunications Commission. Broadcasting Notice of Consultation CRTC 2014-190-3, August 21, 2014 (online: https://crtc.gc.ca/eng/archive/2014/2014-190-3.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC66_4_eng.pdf).
Canada. Canadian Radio-television and Telecommunications Commission. Broadcasting Notice of Consultation CRTC 2015-330, July 23, 2015 (online: https://crtc.gc.ca/eng/archive/2015/2015-330.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC66_8_eng.pdf).
Canada. Canadian Radio-television and Telecommunications Commission. Broadcasting Notice of Consultation CRTC 2016-37, February 3, 2016 (online: https://crtc.gc.ca/eng/archive/2016/2016-37.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC66_11_eng.pdf).
Canada. Canadian Radio-television and Telecommunications Commission. Broadcasting Order CRTC 2015-439, September 24, 2015 (online: https://crtc.gc.ca/eng/archive/2015/2015-439.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC66_9_eng.pdf).
Canada. Canadian Radio-television and Telecommunications Commission. Broadcasting Order CRTC 2018-341, August 31, 2018 (online: https://crtc.gc.ca/eng/archive/2018/2018-341.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC66_13_eng.pdf).
Canada. Canadian Radio-television and Telecommunications Commission. Broadcasting Regulatory Policy CRTC 2013-372, August 8, 2013 (online: https://crtc.gc.ca/eng/archive/2013/2013-372.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC66_2_eng.pdf).
Canada. Canadian Radio-television and Telecommunications Commission. Broadcasting Regulatory Policy CRTC 2015-24, January 29, 2015 (online: https://crtc.gc.ca/eng/archive/2015/2015-24.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC66_5_eng.pdf).
Canada. Canadian Radio-television and Telecommunications Commission. Broadcasting Regulatory Policy CRTC 2015-25, January 29, 2015 (online: https://crtc.gc.ca/eng/archive/2015/2015-25.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC66_6_eng.pdf).
Canada. Canadian Radio-television and Telecommunications Commission. Broadcasting Regulatory Policy CRTC 2015-513, November 19, 2015 (online: https://crtc.gc.ca/eng/archive/2015/2015-513.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC66_10_eng.pdf).
Canada. Canadian Radio-television and Telecommunications Commission. Broadcasting Regulatory Policy CRTC 2016-334 and Broadcasting Order CRTC 2016-335, August 19, 2016 (online: https://crtc.gc.ca/eng/archive/2016/2016-334.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC66_12_eng.pdf).
Canada. Department of Communications. The Broadcasting Act 1988: A Clause‑by‑Clause Analysis of Bill C‑136. Ottawa, 1988.
Canada. Government Response to the Fifteenth report of the Standing Committee on Communications and Culture: A Broadcasting Policy for Canada. Ottawa, 1988.
Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Communications and Culture, No. 36, 2nd Sess., 33th Parl., May 4, 1987, p. 78.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Dunbar, Laurence J. E., and Christian Leblanc. Review of the Regulatory Framework for Broadcasting in Canada — Final Report. Ottawa: Canadian Radio‑television and Telecommunications Commission, 2007.
Kain, Brandon. “Developments in Communications Law: The 2012‑2013 Term — The Broadcasting Reference, the Supreme Court and the Limits of the CRTC” (2014), 64 S.C.L.R. (2d) 63.
APPEALS from a judgment of the Federal Court of Appeal (Webb, Near and Gleason JJ.A.), 2017 FCA 249, [2018] 4 F.C.R. 300, 154 C.P.R. (4th) 85, [2017] F.C.J. No. 1252 (QL), 2017 CarswellNat 7338 (WL Can.). Appeals allowed, Abella and Karakatsanis JJ. dissenting.
Steven G. Mason, Brandon Kain and Richard Lizius, for the appellants.
Michael H. Morris and Ian Demers, for the respondent.
Sara Blake and Judie Im, for the intervener the Attorney General of Ontario.
Stéphane Rochette, for the intervener the Attorney General of Quebec.
J. Gareth Morley and Katie Hamilton, for the intervener the Attorney General of British Columbia.
Kyle McCreary and Johnna Van Parys, for the intervener the Attorney General of Saskatchewan.
No one appeared for the intervener the Canadian Radio‑television and Telecommunications Commission.
Christopher C. Rootham, for the intervener Telus Communications Inc.
Written submissions only by Karen Andrews, for the intervener the Advocacy Centre for Tenants Ontario - Tenant Duty Counsel Program.
Matthew Britton and Jennifer M. Lynch, for the interveners the Ontario Securities Commission, the British Columbia Securities Commission and the Alberta Securities Commission.
Laura Bowman and Bronwyn Roe, for the intervener Ecojustice Canada Society.
David Corbett and Michelle Alton, for the interveners the Workplace Safety and Insurance Appeals Tribunal (Ontario), the Workers’ Compensation Appeals Tribunal (Northwest Territories and Nunavut), the Workers’ Compensation Appeals Tribunal (Nova Scotia), the Appeals Commission for Alberta Workers’ Compensation and the Workers’ Compensation Appeals Tribunal (New Brunswick).
Written submissions only by Gavin R. Cameron and Tom Posyniak, for the intervener the British Columbia International Commercial Arbitration Centre Foundation.
Terrence J. O’Sullivan and Paul Michell, for the intervener the Council of Canadian Administrative Tribunals.
Written submissions only by Susan L. Stewart, Linda R. Rothstein, Michael Fenrick, Angela E. Rae and Anne Marie Heenan, for the interveners the National Academy of Arbitrators, the Ontario Labour‑Management Arbitrators’ Association and Conférence des arbitres du Québec.
Steven Barrett, for the intervener the Canadian Labour Congress.
Written submissions only by William W. Shores, Q.C., and Kirk N. Lambrecht, Q.C., for the intervener the National Association of Pharmacy Regulatory Authorities.
Brendan Van Niejenhuis and Andrea Gonsalves, for the intervener Queen’s Prison Law Clinic.
Adam Goldenberg, for the intervener Advocates for the Rule of Law.
Paul Warchuk and Francis Lévesque, for the intervener the Cambridge Comparative Administrative Law Forum.
Written submissions only by J. Thomas Curry and Sam Johansen, for the interveners the Association of Canadian Advertisers and the Alliance of Canadian Cinema, Television and Radio Artists.
James Plotkin and Alyssa Tomkins, for the intervener the Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic.
Guy Régimbald, for the intervener the Canadian Bar Association.
Written submissions only by Christian Leblanc and Michael Shortt, for the interveners Blue Ant Media Inc., the Canadian Broadcasting Corporation, DHX Media Ltd., Groupe V Média inc., the Independent Broadcast Group, the Aboriginal Peoples Television Network, Allarco Entertainment Inc., BBC Kids, Channel Zero, Ethnic Channels Group Ltd., Hollywood Suite, OUTtv Network Inc., Stingray Digital Group Inc., TV5 Québec Canada, ZoomerMedia Ltd. and Pelmorex Weather Networks (Television) Inc. (37896).
Nicholas McHaffie, for the intervener the First Nations Child & Family Caring Society of Canada.
Daniel Jutras, Audrey Boctor, Olga Redko and Edward Béchard Torres, as amici curiae.
The following is the judgment delivered by
[1] The Chief Justice, Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ. — For more than 40 years, the Super Bowl game, which is played in the United States, had been broadcast in Canada in accordance with the “simultaneous substitution” regime, which was set out in various regulations made under the Broadcasting Act , S.C. 1991, c. 11 . As a result, Canadians were prevented from viewing high-profile commercials that were aired in the U.S. broadcast of the Super Bowl.
[2] After a lengthy consultation process, the Canadian Radio-television and Telecommunications Commission (“CRTC”) decided that the broadcast of the Super Bowl should be exempt from the simultaneous substitution regime as of January 1, 2017 (“Final Decision”), which meant that Canadians would be free to view the U.S. broadcast that features American commercials — which the CRTC described as being “an integral element of the event”. The CRTC implemented that decision by way of an order (“Final Order”) issued under s. 9(1) (h) of the Broadcasting Act , which provides that the CRTC can require that television service providers “carry, on such terms and conditions as the [CRTC] deems appropriate, programming services specified by the [CRTC]”.
[3] The main question in these statutory appeals is whether the CRTC had the authority under s. 9(1) (h) of the Broadcasting Act to issue the Final Order. The Federal Court of Appeal answered this question in the affirmative. Applying the standard of reasonableness, it held — on the basis of “the deference owed to the CRTC in its interpretation of its home statutes and the broad discretion conferred on the CRTC by paragraph 9(1) (h)” — that “the CRTC’s explanation of its jurisdiction to make the Final Order is justifiable, transparent, and intelligible and falls within the range of reasonable outcomes defensible in respect of the facts and the law” (2017 FCA 249, [2018] 4 F.C.R. 300, at para. 28).
[4] We arrive at a different conclusion. The applicable standard must be determined in accordance with the framework set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, a case this Court heard together with these statutory appeals in order to “consider the law applicable to the judicial review of administrative decisions as addressed in Dunsmuir and subsequent cases” (Vavilov, at para. 6). Given that the appellants have challenged the CRTC’s Final Decision and Final Order by way of the statutory appeal mechanism provided for in s. 31(2) of the Broadcasting Act , the appellate standards of review apply here (Vavilov, at paras. 36-52). And because the issues in these appeals raise legal questions that go directly to the limits of the CRTC’s statutory grant of power, and therefore plainly fall within the scope of the statutory appeal mechanism referred to above, the applicable standard is correctness.
[5] Applying this standard, we are of the view that the Final Order was issued on the basis of an incorrect interpretation of the scope of the authority conferred on the CRTC under s. 9(1) (h). Properly interpreted, s. 9(1) (h) only authorizes the issuance of mandatory carriage orders — orders that require television service providers to carry specific channels as part of their cable or satellite offerings — that include specified terms and conditions. It does not empower the CRTC to impose terms and conditions on the distribution of programming services generally. Accordingly, because the Final Order does not actually mandate that television service providers distribute a channel that broadcasts the Super Bowl, but instead simply imposes a condition on those that already do, its issuance was not authorized by s. 9(1) (h) of the Broadcasting Act .
[6] We would allow the appeals and quash the Final Order and the Final Decision accordingly.
I. Background
A. Overview of Simultaneous Substitution in Canada
[7] The CRTC is an independent public authority that oversees broadcasting and telecommunications in Canada. Section 5(1) of the Broadcasting Act requires that the CRTC “regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy set out in subsection 3(1) ” of that Act.
[8] In regulating the Canadian broadcasting industry, the CRTC is required, for the most part, to ensure that all “programming undertakings” and “distribution undertakings” are licensed and that they comply with all conditions applicable to such licences (Broadcasting Act , ss. 32 and 33 ).
[9] Programming undertakings are broadcasters, or television stations, that “acquire, create and produce television programming, and are licensed by the CRTC to serve a certain geographic area within the reach of their signal transmitters” (Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R. 489 (“Cogeco”), at para. 4). Although the signals of local television stations can be received for free by anyone with the proper equipment, most Canadians receive them from “distribution undertakings” — which are essentially television service providers like Bell — as part of their cable, satellite or Internet TV subscriptions (Broadcasting Regulatory Policy CRTC 2015-24, January 29, 2015 (online), at para. 3). These distribution undertakings receive signals from television stations, and retransmit them to their subscribers for a fee (Cogeco, at para. 4).
[10] Given the technical nature of these terms, we will refer in these reasons to distribution undertakings as “television service providers”, and programming undertakings as “television stations”. Some of the authorities also refer to programming undertakings as “broadcasters”.
[11] Section 7 of the Broadcasting Distribution Regulations, SOR/97-555 (“Distribution Regulations”), provides that, as a general rule, television service providers cannot alter or delete the signals of television stations while retransmitting them. Section 7(a) of the Distribution Regulations provides for an exception to this rule that applies where simultaneous substitution of the signal is either required or authorized under the Simultaneous Programming Service Deletion and Substitution Regulations, SOR/2015-240 (“Simultaneous Substitution Regulations”). The Simultaneous Substitution Regulations were made by the CRTC in November 2015 pursuant to its powers under s. 10(1) of the Broadcasting Act .
[12] Simultaneous substitution is a process by which a television service provider temporarily deletes and replaces the entire signal of a distant (usually national or international) television station with the signal of another (usually local) television station that is airing the same program at the same time. Requests for simultaneous substitution are most often made by Canadian television stations that hold exclusive broadcasting rights to a particular American program so as to require that television service providers in Canada replace the signal of an American station airing the same program with the Canadian station’s signal. For example, if the Canadian Broadcasting Corporation (“CBC”) owns the exclusive broadcasting rights for a specific event (e.g. the Academy Awards), it can request that the signal of an American station airing that event (e.g. a station of the American Broadcasting Company) be replaced with a CBC station’s signal. The result is that local viewers will see the CBC’s broadcast of that event — with the same content as the U.S. broadcast but with different commercials — when tuning in to either station.
[13] An important reason why simultaneous substitution is permitted by the CRTC as an exception to the general rule in s. 7 of the Distribution Regulations is to allow Canadian broadcasters to realize greater advertising revenues:
The record of this proceeding indicates that simultaneous substitution is still of significant benefit to Canadian broadcasters since it allows them to fully exploit and monetize the programming rights they have acquired, to the benefit of their overall investment in the production of Canadian programming. While the Commission recognizes the challenges of quantifying the actual financial benefits of simultaneous substitution for broadcasters, it generally agrees that the estimated value of advertising revenue attributable to substitution in the 2012-2013 broadcast year was approximately $250 million.
(Broadcasting Regulatory Policy CRTC 2015-25, January 29, 2015 (online), at para. 14)
Put simply, because simultaneous substitution allows local television stations to maximize their audiences for specific programs, those stations will be able to charge advertisers more for in-program commercials.
[14] Section 3 of the Simultaneous Substitution Regulations authorizes an operator of a Canadian television station to ask a television service provider “to delete the programming service of another Canadian television station or a non-Canadian television station and substitute for it the programming service of a local television station or regional television station”. Section 4(1)(b) requires that the television service provider carry out the requested action if, among other things, “the programming service to be deleted and the programming service to be substituted are comparable and are to be broadcast simultaneously”. Pursuant to s. 4(3), however, a television service provider “must not delete a programming service and substitute another programming service for it if the [CRTC] decides under subsection 18(3) of the Broadcasting Act that the deletion and substitution are not in the public interest”. Section 18(3) of the Broadcasting Act reads as follows:
The [CRTC] may hold a public hearing, make a report, issue any decision and give any approval in connection with any complaint or representation made to the [CRTC] or in connection with any other matter within its jurisdiction under this Act if it is satisfied that it would be in the public interest to do so.
[15] The relevant provisions of the Broadcasting Act , the Distribution Regulations, and the Simultaneous Substitution Regulations are reproduced in full in Appendix A to these reasons.
B. Simultaneous Substitution and the Super Bowl
[16] Bell Media Inc. (“Bell”) is a Canadian broadcaster that owns and operates a number of television stations of the CTV network in large and small markets across the country.
[17] The National Football League (“NFL”) is an unincorporated association of 32 separately owned member clubs, each of which operates a professional football team. The NFL’s Super Bowl championship game is among the most widely viewed single television events in Canada each year.
[18] The NFL owns the copyright for the television production of the Super Bowl. In 2013, it granted Bell the exclusive right to broadcast that event in Canada on CTV until the 2018-2019 season.
[19] For over 40 years, the Canadian broadcast of the Super Bowl had been subject to the applicable simultaneous substitution regime, which meant that the U.S. broadcast of the event — featuring American commercials — was unavailable to Canadian viewers.
[20] In 2013, the CRTC initiated a broad public consultation, called “Let’s Talk TV: A Conversation with Canadians about the Future of Television”, for the purpose of reviewing the entire framework for the regulation of television in Canada. As part of this consultation, it held a public hearing seeking comments on simultaneous substitution, through which Canadians expressed frustration over their inability to see the high-profile commercials that are aired on the U.S. broadcas