[2017] 2 F.C.R. D-1
Broadcasting
Consolidation of three statutory appeals under Broadcasting Act, S.C. 1991, c. 11 (Act), s. 31(2) seeking to quash two broadcasting regulatory policies issued by Canadian Radio-television and Telecommunications Commission regarding simultaneous substitution in which Commission enacting regulations providing remedies in case of errors in simultaneous substitution — Commission also announcing intention to implement policy not to permit simultaneous substitution during broadcast of Super Bowl, for general broadcast of speciality channels as of 2017 — Simultaneous substitution process by which signal of distant (usually American) station being broadcast in Canada replaced by signal of local Canadian broadcaster that broadcasts comparable programming at same time — Substitution regime set out in Broadcasting Distribution Regulations, SOR/97-555; general rule set out at s. 7 stating that signal of programming service cannot be altered or deleted but exceptions existing — In 2013, Commission initiating broad public consultation on future of television system — In 2015, in Broadcasting Regulatory Policy CRTC 2015-25 (First Policy), Commission announcing in particular intention to continue to allow simultaneous substitution generally but would disallow use for speciality channels, Super Bowl — Appellants Bell Canada, Bell Media Inc. (Bell), National Football League (NFL) challenging First Policy on grounds, inter alia, of denial of procedural fairness, unlawful administrative law discrimination; unreasonableness; lack of jurisdiction — Later, Commission issuing documents providing further details about changes that Commission deciding to make to simultaneous substitution regime, requesting comments thereon — In Broadcasting Regulatory Policy CRTC 2015-513 (Second Policy) issued in November 2015, Commission announcing enactment, coming into force of regulations implementing regime to address substitution errors — Regarding Second Policy, Bell, NFL arguing in particular that decision to prohibit simultaneous substitution at Super Bowl by order beyond scope of Commission’s jurisdiction under Act, s. 9(1)(h) — Whether appeal of policy determination to eliminate simultaneous substitution for Super Bowl, speciality services premature; whether Commission lacking jurisdiction to enact remedial regime for simultaneous substitution errors — Pursuant to Act, s. 31(2), appeal lying only from “decision or order” of Commission — Court accepting respondent’s argument that two policies pertaining to disallowance of simultaneous substitution for Super Bowl, effective in 2017, in nature of statements of intent; not qualifying as decisions or orders within meaning of Act, s. 31(2) — Statement about how administrative decision maker intending to act in future having no legal effect; decisions, orders must be final in nature to be considered by courts of law — Also, several sound policy reasons why Court should not intervene at such early stage of process — Thus, appeal not lying pursuant to Act, s. 31(2) regarding what was at time of hearing anticipated proposed distribution order or regulation prohibiting simultaneous substitution for Super Bowl — Furthermore, Commission not breaching procedural fairness — Procedural fairness obligations minimal in circumstances of present case — “Decision” to be made by Commission in nature of policy “decision” calling for exercise of considerable discretion — Clear Bell given fair notice that entire practice of simultaneous substitution up for discussion, made aware of concerns raised during consultation process — Regarding Commission’s jurisdiction to enact remedial regime for simultaneous substitution errors, Commission contending remedial regime set out in substitution regulations not punitive but aiming to serve public interest, further policy objectives of Act — Nothing suggesting Commission trying to achieve through back door what could not do explicitly or more directly — Remedial regime put in place by Commission more properly characterized as necessary adjunct to broad powers bestowed thereupon to accomplish Parliament’s objectives — Careful reading of Act confirming broad scope, wide discretion of powers conferred on Commission to implement Canadian broadcasting policy — Act, s. 10, which grants Commission delegated authority to make regulations, examined — Act, s. 10(1)(c),(g) providing clear legal foundation for remedial regime implementing consequences for disruptive simultaneous substitution errors — Finally, scope of Commission’s regulatory powers expanded more broadly by Act, s. 10(1)(k) in which subjective language therein signalling Parliament’s intent to confer wide margin of appreciation, discretion on Commission in regulation-making function — Therefore, remedial regime set out in Second Policy validly adopted — Appeals dismissed.
Bell Canada v. Canada (Attorney General) (A-231-15, A-63-16, A-67-16, 2016 FCA 217, de Montigny J.A., judgment dated September 2, 2016, 29 pp.)