BCE Inc. v. Québecor Média Inc.

BCE Inc. v. Québecor Média Inc.
Court (s) Database
Federal Court of Appeal Decisions
Date
2022-09-07
Neutral citation
2022 FCA 152
File numbers
A-22-20
Decision Content
Date: 20220907
Docket: A-22-20
Citation: 2022 FCA 152
CORAM:
PELLETIER J.A.
DE MONTIGNY J.A.
LEBLANC J.A.
BETWEEN:
BCE INC., BELL CANADA, BELL EXPRESSVU INC.
and BELL EXPRESSVU LIMITED PARTNERSHIP
Applicants
and
QUÉBECOR MÉDIA INC., TVA GROUP INC., CONSEIL PROVINCIAL DU SECTEUR DES COMMUNICATIONS DU SYNDICAT CANADIEN DE LA FONCTION PUBLIQUE, YVES BERNIER, and YVAN ALLARD
Respondents
Heard by online video conference hosted by the Registry on April 4, 2022.
Judgment delivered at Ottawa, Ontario, on September 7, 2022.
REASONS FOR JUDGMENT BY:
PELLETIER J.A.
CONCURRED IN BY:
DE MONTIGNY J.A.
LEBLANC J.A.
Date: 20220907
Docket: A-22-20
Citation: 2022 FCA 152
CORAM:
PELLETIER J.A.
DE MONTIGNY J.A.
LEBLANC J.A.
BETWEEN:
BCE INC., BELL CANADA, BELL EXPRESSVU INC.
and BELL EXPRESSVU LIMITED PARTNERSHIP
Applicants
and
QUÉBECOR MÉDIA INC., TVA GROUP INC., CONSEIL PROVINCIAL DU SECTEUR DES COMMUNICATIONS DU SYNDICAT CANADIEN DE LA FONCTION PUBLIQUE, YVES BERNIER, and YVAN ALLARD
Respondents
REASONS FOR JUDGMENT
PELLETIER J.A.
I. Introduction
[1] BCE Inc., Bell Canada, Bell ExpressVu Inc. and Bell ExpressVu Limited Partnership (collectively Bell) apply for judicial review of a decision (CRTC 2019-427) of the Canadian Radio-television and Telecommunications Commission (the Commission) in which the latter found that Bell had given an undue preference to its French-language discretionary sports service, RDS, and subjected the respondents’ TVA Sports service to an undue disadvantage (the Decision or the Undue Preference Decision). TVA Sports is a service produced by TVA Group Inc., which is owned and controlled by Québecor Média Inc. (both of which are referred to collectively as Québecor).
[2] Bell argues that the Undue Preference Decision is unreasonable because the fairness of its packaging was settled in a final offer arbitration in 2018. Packaging refers to the way in which a broadcasting distribution undertaking (BDU) offers a programming service to its subscribers, either as part of a pre-assembled package or à la carte. In this case, the dispute centers on Bell’s decision to put TVA Sports in its higher cost packages, Meilleur and Mieux, rather than in its least expensive, most popular package, Bon, which includes RDS.
[3] Bell frames its argument in terms taken from the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov]. It alleges that the Decision is unreasonable because it contains a number of logical errors and because the Commission failed to respect factual and legal constraints in its exercise of its delegated powers. Essentially, Bell argues that the fairness of its packaging was settled in a 2018 final offer arbitration between it and Québecor in which the Commission accepted Bell’s final offer, so that the Commission was precluded from reconsidering the issue of packaging under the guise of a complaint alleging that it gave itself an undue preference.
[4] For the reasons that follow, I would dismiss Bell’s application for judicial review with costs.
II. The facts
[5] Bell and its associated companies operate both BDUs and programming undertakings (PUs). In simple terms, BDUs distribute broadcasts and other content by means of cable systems, satellite systems or streaming on the internet while PUs produce content (called programming services) for distribution by the BDUs. RDS is a product of Bell’s own PU and is carried on Bell’s BDU. Québecor owns the PU that produces TVA Sports, which is also carried on Bell’s BDU. In 2014 and 2017, Bell and Québecor could not agree on the rate to be paid by Bell for distributing TVA Sports on its BDUs. In each case they resorted to final offer arbitration (FOA) before the Commission, a process initiated by Bell in late 2014 and by Québecor in late 2017. These processes produced two decisions in which the Commission accepted Bell’s offers: Broadcasting Decision CRTC 2015-182 (the 2015 FOA Decision) and Broadcasting Decision CRTC 2018-17 (the 2018 FOA Decision). Both are material to the dispute which is the subject of this application for judicial review.
[6] The Commission derives its dispute resolution mandate from the Broadcasting Act, S.C. 1991, c. 11 (the Act) and the Broadcasting Distribution Regulations, SOR/97-555 (the Regulations). Paragraph 10(1)(h) of the Act provides that:
10 (1) The Commission may, in furtherance of its objects, make regulations
10 (1) Dans l’exécution de sa mission, le Conseil peut, par règlement :
…
[…]
(h) for resolving, by way of mediation or otherwise, any disputes arising between programming undertakings and distribution undertakings concerning the carriage of programming originated by the programming undertakings;
h) pourvoir au règlement — notamment par la médiation — de différends concernant la fourniture de programmation et survenant entre les entreprises de programmation qui la transmettent et les entreprises de distribution;
[7] Sections 12 to 15 of the Regulations deal with dispute resolution. Section 12 provides that:
12 (1) If there is a dispute between the licensee of a distribution undertaking and the operator of a licensed programming undertaking or an exempt programming undertaking concerning the carriage or terms of carriage of programming originated by the programming undertaking — including the wholesale rate and the terms of any audit referred to in section 15.1 — one or both of the parties to the dispute may refer the matter to the Commission.
12 (1) En cas de différend entre, d’une part, le titulaire d’une entreprise de distribution et, d’autre part, l’exploitant d’une entreprise de programmation autorisée ou exemptée au sujet de la fourniture ou des modalités de fourniture de la programmation transmise par l’entreprise de programmation — y compris le tarif de gros et les modalités de la vérification visée à l’article 15.1 —, l’une des parties ou les deux peuvent s’adresser au Conseil.
[8] In addition, the Commission has issued Broadcasting and Telecom Information Bulletins dealing with the mechanics of its dispute resolution practice. The Bulletin which was relevant to these two final offer arbitrations was issued on November 28, 2013 as Bulletin CRTC 2013-637.
[9] The two final offer arbitrations form part of the background for this application because Bell’s ultimate position in the application for judicial review is that the 2018 FOA Decision was a final and binding decision on the rate to be paid for TVA Sports (and implicitly on the fairness of its packaging) which the Commission cannot revisit under the guise of deciding an undue preference complaint. As a result, it will be useful to touch upon these two final offer arbitrations between Bell and Québecor.
[10] In late 2014, Bell and Québecor could not agree on a rate to be paid for the carriage of TVA Sports. Bell asked the Commission to accept this question in its final offer arbitration process. Québecor agreed with this course of action. The Commission ultimately accepted Bell’s offer, but in doing so made several observations about Québecor’s offer which, as we will see, are relevant to Québecor’s 2018 offer.
[11] In late 2017, at the conclusion of the term set in the 2015 FOA Decision, Québecor approached the Commission for a second final offer arbitration with respect, once again, to the rate to be paid for the distribution of TVA Sports. Bell supported the request. On October 18, 2017, the Commission advised the parties that it accepted the FOA request and that it would decide “the rate for the linear distribution of TVA Sports by Bell in the francophone market”: 2018 FOA Decision at para. 3.
[12] There was a Commission policy in place at the time touching upon dealings between BDUs and PUs, Broadcasting Regulatory Policy CRTC 2015-438 (the Wholesale Code). The Wholesale Code is intended to ensure that subscribers have greater choice and flexibility in the programming services they receive, that programming services are diverse, available and discoverable on multiple platforms, and that negotiations between programming undertakings and BDUs are conducted in a fair manner. The Wholesale Code covers various aspects of the relationship between BDUs and PUs. Of particular interest in this case is section 6 which provides as follows:
6. In negotiating a wholesale rate for a programming service based on fair market value, a programming undertaking, BDU or exempt digital media undertaking shall take into consideration the following factors, where applicable:
a. historical rates;
b. penetration levels, volume discounts and the packaging of the service;
c. rates paid by unaffiliated BDUs for the programming service;
d. rates paid for programming services of similar value to consumers, taking into consideration viewership;
e. the number of subscribers that subscribe to a package in part or in whole due to the inclusion of the programming service in that package, taking into consideration viewership;
f. the retail rate charged for the service on a stand-alone basis; and
g. the retail rate for any packages in which the service is included.
[13] In its 2018 FOA Decision, the Commission advised the parties that it had assessed the proposed rates “in relation to the following key factors on fair market value applicable in this case”:
- historical rates;
- penetration levels, volume discounts, and the packaging of the service;
- rates paid by unaffiliated BDUs for the programming service; and
- rates paid for programming services of similar value to consumers, taking into consideration viewership.
2018 FOA Decision at para. 25
[14] The Commission noted that it had also taken into account the public policy objectives of ensuring that the risks and rewards are shared between the BDUs and the PUs, striking a fair balance between allowing BDUs to provide their subscribers with more choice and flexibility, and ensuring reasonable and predictable levels of revenue for PUs. In this case, the Commission identified historical rates, viewing trends and programming expenditures, as well as rates paid for services of similar value to subscribers as factors that had a stronger probative value in terms of identifying the value of the service in issue.
[15] On the issue of viewing trends, the Commission found that TVA Sports viewership had recently trended upwards, but that this trend was mitigated by the volatility of its viewership. The significant improvement in viewership in 2016-2017 was offset by a decrease in 2015-2016 from a higher level of viewership in a prior year, leading the Commission to find that TVA Sports’ historic viewership trends supported Bell’s proposed rate.
[16] The Commission also observed that while TVA Sports had made significant programming investments during the 2014-2015 period – a 279 % increase from the previous year – increases in programming expenditures in subsequent years were limited. Thus, historical programming expenditure data also supported Bell’s proposed rate.
[17] As for the comparison between TVA Sports and services of similar value to subscribers, the Commission noted that while RDS, the most comparable service, had lost viewership in the previous year, it still had more viewers than TVA Sports. Notwithstanding the narrowing gap between the two services, the Commission found that RDS appeared to have stronger and more stable viewership overall. The Commission took this as indicative of the value placed on that service by viewers. Consequently, Bell’s proposed rate was considered to be more reasonable than Québecor’s in relation to this criterion.
[18] The Commission found that the factors related to volume discounts and the rates paid by unaffiliated BDUs supported the conclusion that Québecor’s proposed rates were more reasonable. However, the Commission also found that the unaffiliated BDUs were not comparable to Bell in terms of subscriber levels so that the rate paid by these BDUs was a less critical factor.
[19] The Commission found that both offers allowed Bell to provide its subscribers choice and flexibility. Since Bell’s subscriber levels were increasing while TVA Sports’ penetration on Bell had remained fairly constant since January 2013, the Commission found that TVA Sports’ revenue from Bell was likely to increase rather than decrease under either offer. In response to Québecor’s claim that Bell’s proposed rates would not permit TVA Sports to obtain sufficient and reasonable revenues, the Commission found that the difference between the two offers was unlikely to make a significant difference to the viability of TVA Sports over the contract term. In addition, it was not convinced that Québecor’s percentage of revenue from Bell was unreasonable given the proportion of viewers it delivered.
[20] Based on this, the Commission found that both offers were consistent with the relevant public policy objectives.
[21] In light of the relevant fair market value factors it examined and their probative value, as well as the public policy factors it considered, the Commission found that the evidence did not support Québecor’s proposed rate increase. Consequently, it chose Bell’s offer.
III. The decision under review
[22] Approximately one year after the release of the Commission’s 2018 FOA Decision, Québecor filed an undue preference complaint against Bell. The following thumbnail sketch of the procedural facts is taken from the Decision:
3. TVA Sports is a national, French-language discretionary service devoted to sports, with an emphasis on professional Canadian sports. The service launched in September 2011 and Bell began distributing the service to its subscribers in December 2011.
4. RDS, for which a broadcasting licence was granted in 1987, is a national, French-language discretionary service devoted to sports. RDS was carried on the basic service of a majority of the BDUs in the French-language market until 2015. In October 2011, Bell Media launched RDS2, a second French-language discretionary service devoted to sports. According to an agreement between TVA and Bell, TVA Sports was originally packaged in the same bundle as RDS2.
5. In accordance with Broadcasting Regulatory Policy 2015-96 and the Broadcasting Distribution Regulations (the Regulations) which require BDUs to offer a small basic service package, Bell offers a small basic service that does not include RDS or TVA Sports.
6. Since 1 March 2016, RDS has been part of the Bell’s Bon, Mieux and Meilleur packages, and is offered on an à la carte basis, in build-your-own-packages, and in grandfathered packages (i.e., packages that existed before the implementation of Broadcasting Regulatory Policy 2015-96). TVA Sports is offered in Mieux and Meilleur packages, as well as à la carte or in build-your-own-packages.
…
8. Québecor argued that Bon, the package that includes RDS, is much more highly penetrated than Mieux and Meilleur, the packages that include TVA Sports. Further, RDS continues to benefit from the grandfathering of its previous distribution on the basic service. It submitted that this disadvantages TVA Sports.
Undue Preference Decision at paras. 3-6, 8
[23] The Commission then set out the respective positions of the parties. Of particular interest is its summary of Bell’s response to Québecor’s complaint:
14. …[Bell] stated that the initial affiliation agreement between TVA and Bell obligated Bell to package TVA Sports with RDS2 [a second sports service from Bell’s PU], not RDS. Subsequent agreements granted Bell packaging flexibility with no requirement to package TVA Sports with RDS. [Bell] added that the packaging is compliant with the Wholesale Code, set out in the appendix to Broadcasting Regulatory Policy 2015-438. [Bell] submitted that the Wholesale Code does not afford the same packaging protections to vertically integrated entities such as Québecor as they do [sic] for independent services.
15. [Bell] also indicated that the breadth of sports programming offered by the two services, their respective viewership as well as their respective market shares are significantly different and that, accordingly, the relative value of the two services are not comparable. [Bell] submitted that TVA Sports has very little programming that is unique to the station, does not hold exclusive rights to big-ticket events it broadcasts and that the majority of its big-ticket programs are available on widely penetrated English-language channels.
16. According to [Bell] repackaging TVA Sports to Bon would be a reversion to micro-regulation. This would have a significant impact on flexibility, affordability and consumer choice since the cost of Bon would have to be increased even for subscribers who do not wish to watch TVA Sports. [Bell] added that subscribers already have several options for accessing TVA Sports: they can add the service à la carte or create a custom package to include the service. [Bell] indicated that a significant number of its subscribers already choose one of these options.
17. In regard to the objectives of the Act, [Bell] submitted that it has been operating in accordance with the Act, in particular with sections 3(1)(t)(ii) and 3(1)(t)(iii), by providing reasonable terms for the carriage, packaging and retailing of TVA Sports. [Bell] indicated that its offer complies with the contractual agreements for the service.
18. Finally, [Bell] indicated that the Commission has already considered the issue at the heart of this complaint, during the 2018 final offer arbitration process regarding the distribution of TVA Sports. [Bell] submitted that during this process, the Commission examined a number of factors, including penetration levels, volume discounts and the packaging of the service. Therefore, according to [Bell], the Commission issued a final and binding determination in Bell’s favor in this matter and Québecor is now trying to achieve what it could not through final offer arbitration.
Undue Preference Decision at paras. 14-18
[24] A relevant element in this summary is that Bell raised, as one ground among many in opposing Québecor’s undue preference complaint, that packaging was the subject of a final and binding determination.
[25] The Commission began its analysis by setting out the substantive issues which it had to consider:
a) Has the matter raised by Québecor already been resolved?
b) Is there a preference or a disadvantage?
c) If so, is the preference or disadvantage undue?
Undue Preference Decision at para. 28
[26] On the first issue, the Commission considered that Bell was conflating the analyses for final offer arbitration and undue preference complaints. The Commission explained that it examines distinct factors in each process and these factors are not comparable. Final offer arbitration is conducted on the basis of relevant fair market value factors. There are no such criteria for analyzing undue preference allegations. As a result, packaging, the main issue in the complaint, was not a factor that it considered in the 2018 FOA Decision.
[27] The Commission then set out what constituted a preference, that is, a dissimilar treatment of comparable entities. The first question to be addressed, then, was whether the two services were comparable. The Commission noted that they both offer similar content, that is, a diverse range of sports programming including broadcast rights for major league sports and popular sporting events. In addition, both offer programs of a similar format such as sports commentary and news programs. Both services are marketed to the same target audience: sports fans. Given the similarity in their programming, the Commission thought it likely that subscribers considered the services to be similar and in competition with each other. In addition, it noted that both RDS and TVA Sports are discretionary services that are subject to the same standard licence conditions.
[28] The Commission did not think it necessary to take into account the differences between the two services in terms of viewership and market share, since it was clear from the record before it that the two services were comparable.
[29] The next question the Commission considered was whether there was dissimilar treatment of the two services. It began by noting Bell’s claim that its packaging complied with the Wholesale Code but commented that Bell’s increased packaging flexibility did not absolve it of its responsibilities under section 9 of the Regulations which proscribes undue preferences. The Commission noted that RDS was included in all of Bell’s discretionary packages including Bon, which, by virtue of being Bell’s most popular package, has the highest penetration. Mieux and Meilleur packages which include TVA Sports are more expensive and have lower penetration. Since the two services are comparable, the Commission concluded that, given the significant differences in packaging, Bell’s treatment of TVA Sports is dissimilar from its treatment of RDS and subjects TVA Sports to a disadvantage.
[30] The last step in the Commission’s analysis consisted of determining whether the disadvantage was undue. In its view, this determination required consideration of whether the disadvantage had a material adverse impact on Québecor and whether the disadvantage has had or will have an impact on the achievement of the statutory objectives.
[31] In considering the impact of the disadvantage on Québecor, the Commission found that the exclusion of TVA Sports from the Bon package deprived it of a substantial number of subscribers and several million dollars a year of subscription and advertising revenues. The Commission noted that Bell had the onus of demonstrating that the disadvantage was not undue but that it did not provide the data which could have refuted Québecor’s projected revenue loss. However, Bell did provide information on the number of Bon subscribers who added TVA Sports to their package on an à la carte basis or in a build-your-own package. This allowed the Commission to conclude that the number of subscribers who did not do so deprived Québecor of hundreds of thousands of dollars per month of unrealized subscriber revenue while those who did added to Bell’s revenue. The Commission pointed out that sports services rely on revenue from distribution to fund the acquisition of expensive broadcast rights. The additional revenue which Bell received from these additional TVA Sports purchasers gave Bell a competitive advantage in securing distribution rights for sports programs.
[32] The Commission then dealt with the effect of Bell’s packaging on the policy objectives of the Broadcasting Act. Bell, for its part, argued that it complied with subparagraphs 3(1)(t)(ii) and (iii) of the Act, which provide as follows:
(t) distribution undertakings
t) les entreprises de distribution :
…
…
(ii) should provide efficient delivery of programming at affordable rates, using the most effective technologies available at reasonable cost,
(ii) devraient assurer efficacement, à l’aide des techniques les plus efficientes, la fourniture de la programmation à des tarifs abordables,
(iii) should, where programming services are supplied to them by broadcasting undertakings pursuant to contractual arrangements, provide reasonable terms for the carriage, packaging and retailing of those programming services, and
(iii) devraient offrir des conditions acceptables relativement à la fourniture, la combinaison et la vente des services de programmation qui leur sont fournis, aux termes d’un contrat, par les entreprises de radiodiffusion,
[33] Québecor underlined TVA Sports’ important contribution to Canadian programming, whether in Canadian programming expenditures or by broadcasting Canadian content. Québecor alleged that Bell’s practices did not give priority to Canadian programming, as provided in subparagraph 3(1)(t)(i) of the Broadcasting Act, nor did it provide reasonable terms for its carriage, packaging and retailing of TVA Sports, as required by subparagraph 3(1)(t)(iii).
[34] Bell responded that many big ticket events broadcast by TVA Sports were also broadcast by English-language services which proved, it said, that English-speaking subscribers in Quebec did not need to subscribe to TVA Sports. Québecor argued that, in the absence of TVA Sports, French-speaking sports fans would be deprived of French-language broadcasts of major sporting events, which was not in the public interest.
[35] On the strength of the record before it, the Commission found that TVA Sports met the needs of sports fans by broadcasting diverse Canadian programming of interest to Canadians and that the disadvantage created by Bell’s undue preference prevented TVA Sports from fully contributing to the objectives of the Broadcasting Act.
[36] As a result, the Commission found that Bell’s packaging of TVA Sports subjected it to an undue disadvantage and conferred an undue preference on RDS. The Commission ordered Bell to remedy the situation by including TVA Sports in the same program offering as RDS and reporting back to it by a given date.
IV. Statement of issues
[37] Since Bell previously sought leave to appeal the Commission’s decision on a question of law or jurisdiction pursuant to subsection 31(2) and was refused leave, a question which arises now is whether it can bring an application for judicial review of the same decision. Bell flagged this as a preliminary issue and it will therefore be dealt with in my analysis.
[38] A second preliminary issue is whether the dismissal of Bell’s application for leave means that the issues raised in that application are not questions of law and can therefore be raised in this application for judicial review, presumably as questions of mixed fact and law. This question arises because of Bell’s plea that the Commission did not respect the legal constraints that limited its exercise of delegated power. Since issue estoppel and abuse of process by re-litigation are, on their face, legal doctrines, the question arises as to whether Bell can invoke them in this application.
[39] The jurisprudence of this Court on applications for leave to appeal holds that in order to obtain leave the applicant must establish an arguable case that the decision in issue was based on an error of law or jurisdiction: CKLN Radio Incorporated v. Canada (Attorney General), 2011 FCA 135, 418 N.R. 198 at para. 6; Lukács v. Swoop Inc., 2019 FCA 145, 305 A.C.W.S. (3d) 500 at para. 15; Lufthansa German Airlines v. Canadian Transportation Agency, 2005 FCA 295, 346 N.R. 79 at paras. 8-9; Krishnapillai v. Canada, 2001 FCA 378, [2002] 3 FC 74 at paras. 10-11 [Krishnapillai]; Radio India (2004) Ltd. v. Canada (Radio-Television and Telecommunications Commission), 2006 FCA 253 at para. 1. In Krishnapillai, this Court decided, at paragraph 11 of its reasons, that:
Neither a decision granting leave nor a decision denying leave may be said to be a decision on the merit of any given issue. I have yet to see either type of decision successfully invoked as authority for the proposition that the issues raised in a leave application have been actually decided one way or the other.
[40] It follows from this that the dismissal of an application for leave to appeal does not decide that a question raised in the application is not a question of law (or jurisdiction). While that is certainly one possibility, there are others, notably that the Court was not satisfied that an arguable case has been shown, that the facts did not support the issue or that the stated question of law was not dispositive of the appeal: Krishnapillai at para. 10.
[41] It may be possible for a party to raise, as a question of mixed fact and law in an application for judicial review, a question which was raised as a question of law in its unsuccessful application for leave to appeal. However, since the dismissal of the application for leave does not necessarily decide that the question in issue is not one of law, the onus is on the party raising the same question in a subsequent application for judicial review limited to questions of fact and questions of mixed fact and law to show that it is, in fact, a question of fact or mixed fact and law.
[42] Turning now to Bell’s statement of issues, Bell’s memorandum of fact and law quotes extensively from the Supreme Court’s decision in Vavilov in which the Supreme Court continued its development of administrative law. In Vavilov, the Supreme Court identified certain kinds of errors which make a decision unreasonable, a teaching which Bell appears to have taken to heart.
[43] But it is not sufficient to simply point to errors in a tribunal’s reasons; the errors must be material to the outcome:
When resolving challenges to an administrative decision, courts must also consider the materiality of any alleged errors in the decision-maker’s reasoning. Under reasonableness review, an error is not necessarily sufficient to justify quashing a decision. Inevitably, the weight of an error will depend on the extent to which it affects the decision. An error that is peripheral to the administrative decision-maker’s reasoning process, or overcome by more compelling points advanced in support of the result, does not provide fertile ground for judicial review.
Vavilov at para. 300
Absent an assessment of materiality, disappointed litigants would have an incentive to engage in a “line-by-line treasure hunt for error” so as to be in a position to argue that the decision was unreasonable based on the sheer volume of errors, however trivial. There appears to be an element of this in Bell’s approach to this case.
[44] Bell summarized, at paragraph 39 of its memorandum of fact and law, its view of the issues in this case:
The s. 18.1(4)(d) ground of review captures the CRTC’s conduct here. The CRTC: (a) made an erroneous finding of fact, i.e. that packaging was not a factor considered in the 2018 FOA Decision; (b) arrived at that finding in a perverse and capricious manner, employing reasoning that was internally incoherent and that disregarded the relevant factual and legal constraints; and (c) based its decision to hear and ultimately allow Québecor’s Complaint on that erroneous finding.
[45] Bell seeks to show that the errors which it enumerates are material by alleging that the Commission only heard Québecor’s undue preference complaint because of them. This is an oblique reference to the legal constraints which Bell pleads later in its memorandum.
[46] Later in its argument, Bell identifies two classes of errors which make the Commission’s decision unreasonable. In the first class, Bell ties the internally incoherent reasoning error it identified previously to the indicia of unreasonableness set out at paragraphs 102 and 104 of Vavilov: logical fallacies such as an absurd premise and an unfounded generalization, and the absence of a coherent line of reasoning.
(a) [The Commission] relies on the absurd premise that there are no criteria for analyzing undue preference allegations such as those used in FOA proceedings;
(b) [The Commission] makes the unfounded generalization that the factors examined in the 2018 FOA and the Undue Preference Decisions are not comparable; and
(c) [The Commission’s] ultimate conclusion that packaging was not considered in the 2018 FOA Decision cannot follow from the line of analysis it provided.
Bell’s memorandum of fact and law at para. 45
[47] Bell’s second class of errors relates to its argument that the Commission did not respect relevant legal and factual constraints. Bell’s itemization of these constraints can be summarized as follows:
Factual constraints: Bell’s submissions in the undue preference proceedings and Québecor’s concessions in the FOA proceedings.
Legal constraints: subsection 31(1) of the Broadcasting Act and the doctrines of issue estoppel and abuse of process by re-litigation.
[48] It should be apparent that a tribunal can make an unreasonable decision without necessarily falling into one of the types of errors listed by the Supreme Court. The categories of unreasonableness are not closed. As a result, attempts to shoehorn alleged errors into Vavilov categories may be misguided, as they were here, and may simply obscure a more coherent explanation of the unreasonableness of a tribunal’s decision. To be sure, the Vavilov categories of error will, in many cases, provide a concise way of describing certain types of error but they do not form a mandatory template for identifying unreasonableness.
[49] If one sets aside Bell’s categorization of the Commission’s alleged errors, its argument can be stated in two propositions. The first proposition is that the 2018 FOA Decision and the Undue Preference Decision decide the same question. Bell argues that the Commission erred in fact in not recognizing this congruence. The second proposition is that, in light of this congruence, the Commission ought to have invoked the doctrine of issue estoppel or abuse of process and declined to engage in the re-litigation of the same question under the guise of an undue preference complaint. Whether or not this plea is available to Bell in this application remains to be seen, given the apparent invocation of legal error.
[50] When the two groups of errors are viewed together, it appears that the questions raised under the heading of logical errors are material to the question of whether the two decisions decided the same question. It is this connection which make those questions material, not their alleged illogicality.
[51] As a result, I would state the issues to be decided in this application as follows:
A. Is Bell entitled to bring an application for judicial review after having been denied leave to appeal the Decision?
B. Did the 2018 FOA Decision and the Undue Preference Decision decide the same question?
C. If so, did the Commission err in failing to apply the legal doctrines which seek to prevent re-litigation of decided questions between the same parties?
D. Did the Commission err in not taking into account the factual constraints that limited its exercise of delegated power?
[52] Since the issues in this application do not fall within the limited exceptions to the presumptive reasonableness standard of review, that standard applies to these issues.
V. Analysis
A. Is Bell entitled to bring an application for judicial review after having been denied leave to appeal the Decision?
[53] This issue arises because of the combined effects of subsection 31(2) of the Broadcasting Act and sections 18.5 and 28 of the Federal Courts Act, R.S.C. 1985, c. F-7.
[54] Bell applied for leave to appeal the Decision pursuant to subsection 31(2) of the Broadcasting Act, which provides that an appeal from a Commission decision lies to this Court, with leave, upon a question of law or jurisdiction. In its motion for leave, Bell indicated that the Commission erred in law in failing to apply the doctrine of issue estoppel arising from the 2018 FOA in which, Bell argued, the same issue between the same parties was finally determined. Bell also argued that the Decision encourages a multiplicity of proceedings and was an abuse of process by litigation. Bell’s final argument was that the Commission failed to consider whether Québecor’s complaint of undue preference was a collateral attack on the 2018 FOA Decision. Bell’s motion for leave to appeal was dismissed. In keeping with this Court’s usual practice, no reasons were given for the dismissal.
[55] Bell candidly disclosed in its application for leave that it was also bringing an application for judicial review in the event that its motion for leave was dismissed or, if leave was granted, that its subsequent appeal was dismissed. Given that its application for leave to appeal was dismissed, Bell is now pursuing its application for judicial review.
[56] In bringing its application, Bell relies upon paragraph 28(1)(c) of the Federal Courts Act, which provides that this Court has jurisdiction to hear and determine applications for judicial review “made in respect of … the Canadian Radio-television and Telecommunications Commission”. Bell acknowledges that its right to judicial review is limited by section 18.5 of the Federal Courts Act, reproduced below, which is made applicable to this Court by subsection 28(2) of the same Act:
18.5 Despite sections 18 and 18.1, if an Act of Parliament expressly provides for an appeal to the Federal Court, the Federal Court of Appeal, the Supreme Court of Canada, the Court Martial Appeal Court, the Tax Court of Canada, the Governor in Council or the Treasury Board from a decision or an order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act. (my emphasis)
18.5 Par dérogation aux articles 18 et 18.1, lorsqu’une loi fédérale prévoit expressément qu’il peut être interjeté appel, devant la Cour fédérale, la Cour d’appel fédérale, la Cour suprême du Canada, la Cour d’appel de la cour martiale, la Cour canadienne de l’impôt, le gouverneur en conseil ou le Conseil du Trésor, d’une décision ou d’une ordonnance d’un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d’un tel appel, faire l’objet de contrôle, de restriction, de prohibition, d’évocation, d’annulation ni d’aucune autre intervention, sauf en conformité avec cette loi. (Je souligne)
[57] Bell concedes that it cannot plead that the Commission’s decision is unreasonable on questions of law or jurisdiction. Those questions can be appealed to this Court and so, an application for judicial review on those grounds is precluded by section 18.5 of the Federal Courts Act. While the distinction between questions of law and questions of mixed fact and law is easily stated, it is not as easily applied: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1 at para. 35.
[58] The issue of the scope of the right to judicial review in these circumstances was addressed by this Court in Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161 [Best Buy], a case in which an application for judicial review was brought notwithstanding the right of appeal on questions of law under section 68 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). The Court was unanimous on the disposition of the appeal but split on the question of whether the section 18.5 limitation excluded applications for judicial review on questions of fact. The minority reasons argued that there was no such right because the exclusion of questions of fact from the scope of an appeal signaled that Parliament intended to protect findings of fact from appeal or review. The majority (on this issue) held that a complete bar of judicial review would not be consistent with the rule of law, citing the Supreme Court’s decisions in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and Vavilov (see Best Buy at para. 112). As a result, the question of Bell’s ability to bring its application for judicial review, though on limited grounds, has been settled in its favour.
B. Did the 2018 FOA Decision and the Undue Preference Decision decide the same question?
[59] Since this issue turns on the Commission’s reasons in its 2018 FOA and Undue Preference Decisions, it will be useful to briefly review the Supreme Court’s teachings about tribunal reasons as set out in Vavilov.
[60] The Supreme Court’s guidance is found at paragraphs 91-95 of its reasons. The Supreme Court began by reminding reviewin