2018 FCA 174, 2018 FCA 174
Opinion
A-51-16 2018 FCA 174 Bell Canada and Bell Media Inc. ( Appellants ) v . 7262591 Canada Ltd. (d.b.a.
Gusto TV), Access Communications Co-operative Limited, Allarco Entertainment Inc., Anthem Media Group, Blue Ant Media Inc., Canadian Cable Systems Alliance Inc., CBC/Radio-Canada, Cogeco Inc., Competition Bureau, DHX Media Ltd., Eastlink, Groupe V Média Inc., Independent Broadcast Group/Le groupe de diffuseurs indépendants, l’Office des télécommunications éducatives de langue française de l’Ontario (Groupe Média TFO), Mediamind Digital, MTS Inc., Pelmorex Communications Inc., Public Interest Advocacy Centre, Québecor Média Inc., Saskatchewan Telecommunications, Sogetel Inc., Stingray Digital Group Inc., Stornoway Communications Limited Partnership, TekSavvy Solutions Inc. and Hastings Cable Vision Ltd., Telus, TV5 Québec Canada, VMedia Inc. and Zazeen Inc. ( Respondents ) Indexed as: Bell Canada v. 7262591 Canada Ltd.
Federal Court of Appeal, Nadon, Rennie and Woods JJ.A.—Ottawa, November 14, 2017 and October 1, 2018.
Broadcasting — Appeal under Broadcasting Act , s. 31 from two decisions made by Canadian Radio-television and Telecommunications Commission (CRTC) — In 2015, CRTC imposing policy to govern affiliation agreements between programming undertakings (PUs), broadcasting distribution undertakings (BDUs) — CRTC implementing policy through two decisions: Broadcasting Regulatory Policy CRTC 2015-438 (the 2015 Wholesale Code or Code), Distribution of the programming of licensed programming undertakings by broadcasting distribution undertakings, Broadcasting Order 2015-439 (Order) — 2015 Wholesale Code establishing certain parameters on negotiation, content of affiliation agreements — Order making 2015 Wholesale Code binding on broadcasting distribution undertakings — Order issued under Broadcasting Act, s. 9(1) (h) — Appellants asserting that 2015 Wholesale Code not authorized by Broadcasting Act, s. 9(1)(h); that Code violating appellants’ copyright interests guaranteed under Copyright Act , ss. 3(1) (f), 13(4) ; therefore, that 2015 Wholesale Code, Order ultra vires CRTC’s powers — Main issues: which standard of review applied in present case; whether decision of Supreme Court of Canada in Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168 (Cogeco) dispositive of issues in this appeal; whether CRTC reasonably concluding having power under Broadcasting Act, s. 9(1)(
h) to issue Order, by implication, power to enforce 2015 Wholesale Code to extent that terms encompassed by Order — Per Woods J.A.: Agreeing with Rennie J.A.’s dissenting reasons, with exception of finding that CRTC reasonably concluding that Broadcasting Act, s. 9(1)(
h) enabled CRTC to issue 2015 Wholesale Code, Order — Not reasonable to interpret s. 9(1)(
h) as granting CRTC general power to regulate terms, conditions of affiliation agreements —
Interpretation going far beyond ordinary meaning of language in Broadcasting Act, s. 9(1)(h); not reasonably supported by textual, contextual, purposive
interpretation of legislation — Also not reasonable to apply doctrine of necessary implication in present case — General objectives set out in Broadcasting Act, s. 5(1) subject to specific powers granted to CRTC in other parts of legislation, which includes s. 9(1)(h) — Therefore,
interpretation of Broadcasting Act, s. 9(1)(
h) reflected in Order unreasonable — Appeal allowed, Rennie J.A. dissenting — Per Nadon J.A. (concurring): Broadcasting Act, s. 9(1)(
h) not allowing CRTC to enact Order so as to give effect to 2015 Wholesale Code — Standard of reasonableness that both Rennie, Woods JJ.A. applying to whether Broadcasting Act, s. 9(1)(
h) conferring authority to CRTC to issue Order not agreed upon — Correctness applicable standard on that issue — Parliament, by way of Broadcasting Act, s. 31(2) sending unequivocal signal that questions of law or jurisdiction, arising from decisions made by CRTC, to be determined by Federal Court of Appeal, which can only mean on standard of correctness — Parliament’s intent regarding s. 9(1)(
h) can only be determined by this Court, meaning that it is Court’s responsibility to determine whether CRTC’s view of Broadcasting Act, s. 9(1)(
h) is correct view — Per Rennie J.A. (dissenting): Cogeco not dispositive of whether Broadcasting Act, s. 9(1)(
h) authorizing CRTC to make Code binding — Standard of review to be applied to orders made under Broadcasting Act, s. 9(1)(
h) previously determined by Federal Court of Appeal as reasonableness — Insofar as conflict between Copyright Act, Broadcasting Act concerned, applicable standard of review correctness — Appeal pivoting on intention of Parliament, whether Parliament intending, through Broadcasting Act, s. 9(1)(
h) to give CRTC jurisdiction to enact measures directly affecting PUs — Order, Code not “too great a stretch” from what Parliament intended but directly within its contemplation — As to possible conflict of 2015 Wholesale Code with Copyright Act, some provisions of Code constraining how copyright holder may exercise its copyright by limiting some terms, conditions it is allowed to include in affiliation agreement — However, this not violating Copyright Act, ss. 3(1)(
f) or 13(4). This was an appeal under
section 31 of the Broadcasting Act from two decisions made by the Canadian Radio-television and Telecommunications Commission (CRTC). In 2015, the CRTC imposed a policy to govern affiliation agreements between programming undertakings (PUs) and broadcasting distribution undertakings (BDUs). The CRTC implemented this policy through two decisions: Broadcasting Regulatory Policy CRTC 2015-438 (the 2015 Wholesale Code or the Code) and [ Distribution of the programming of licensed programming undertakings by broadcasting distribution undertakings ], Broadcasting Order 2015-439 (the Order).
The 2015 Wholesale Code establishes certain parameters on the negotiation and content of affiliation agreements. The Order makes the 2015 Wholesale Code binding on broadcasting distribution undertakings and requires them to distribute programs according to prescribed terms and conditions. The Order was issued under paragraph 9(1) (
h) of the Broadcasting Act to enable the CRTC to enforce parts of the 2015 Wholesale Code. The appellants asserted that the mandate vested in the CRTC by
section 3 of the Broadcasting Act to implement the broadcasting policy for Canada does not authorize the CRTC to interfere in the economic relationship between BDUs and PUs. Their argument was twofold: the 2015 Wholesale Code is not authorized by paragraph 9(1) (
h) of the Broadcasting Act and, secondly, the Code violates the appellant’s copyright interests guaranteed under paragraph 3(1) (
f) and subsection 13(4) of the Copyright Act . In consequence, they submit that the 2015 Wholesale Code and Order are ultra vires the CRTC’s powers. The main issues were what was the standard of review in this case; whether the decision of the Supreme Court of Canada in Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168 ( Cogeco ) was dispositive of the issues in this appeal (p. 9, item A;); and whether the CRTC reasonably concluded that it has the power under paragraph 9(1) (
h) of the Broadcasting
Act to issue the Order, and, by implication, the power to enforce the 2015 Wholesale Code to the extent that its terms are encompassed by the Order. Held (Rennie J.A. dissenting), the appeal should be allowed. Per Woods J.A.: The dissenting reasons, with the exception of the finding that the CRTC reasonably concluded that paragraph 9(1) (
h) of the Broadcasting Act enables the CRTC to issue the 2015 Wholesale Code and the Order were agreed upon. It was not reasonable to interpret paragraph 9(1)(
h) as granting the CRTC a general power to regulate the terms and conditions of affiliation agreements. This
interpretation went far beyond the ordinary meaning of the language in paragraph 9(1)(
h) and was not reasonably supported by a textual, contextual and purposive
interpretation of the legislation. The ordinary meaning of paragraph 9(1)(
h) does not encompass a general power to regulate the terms and conditions of carriage. Such regulation must relate to terms and conditions of programming services that the CRTC specifies and requires to be provided by a licensee. While the context and purpose of the legislation are important, they do not reasonably support an
interpretation that the ordinary meaning of paragraph 9(1)(
h) of the Broadcasting Act cannot bear. It was also not reasonable to apply the doctrine of necessary implication in this case. The general objectives set out in subsection 5(1) of the Broadcasting Act are subject to the specific powers granted to the CRTC in other parts of the legislation, which include paragraph 9(1) (h). Therefore, the
interpretation of paragraph 9(1)(
h) of the Broadcasting Act that is reflected in the Order was unreasonable. Per Nadon J.A. (concurring): Paragraph 9(1) (
h) of the Broadcasting Act does not allow the CRTC to enact the Order so as to give effect to the 2015 Wholesale Code. The standard of reasonableness that both Rennie and Woods JJ.A. concluded applied to whether paragraph 9(1)(
h) of the Broadcasting Act confers authority to the CRTC to issue the Order was not agreed upon. The applicable standard on that issue was correctness. The standard applied by the Supreme Court in Cogeco was binding and was therefore the standard that should be applied in the present matter. Parliament has clearly said, by way of subsection 31(2) of the Broadcasting Act , that appeals on questions of law or jurisdiction are to be taken to the Federal Court of Appeal upon leave.
Thus, Parliament has sent an unequivocal signal that questions of law or of jurisdiction, arising from decisions made by the CRTC, are to be determined by this Court, which can only mean on a standard of correctness. The only possible
interpretation of subsection 31(2) of the Broadcasting Act is that Parliament intended that courts provide the answers to the questions of law raised before them. Because Parliament did not intend courts to sanction incorrect
interpretations of its legislation, it did not intend for the CRTC to interpret paragraph 9(1)(
h) of the Broadcasting Act in a manner that was not in accordance with its intent. Parliament’s intent with regard to paragraph 9(1)(
h) can only be determined by this Court, meaning that it is the Court’s responsibility to determine whether the CRTC’s view of paragraph 9(1)(
h) is the correct view. If it is not, then the Order cannot stand. When Parliament, as it has done here with subsection 31(2) of the Broadcasting Act , sends a message directing this Court to provide answers to legal questions arising from decisions made by the CRTC, this Court should determine, on a correctness standard, what the answers are to the legal questions. Per Rennie J.A. (dissenting): Cogeco was not dispositive of whether paragraph 9(1) (
h) of the Broadcasting Act authorizes the CRTC to make the Code binding. However, the principles of statutory
interpretation employed by the Supreme Court of Canada in Cogeco to read the Broadcasting Act were binding. The standard of review to be applied to orders made under paragraph 9(1)(
h) of the Broadcasting Act has previously been determined by this Court as reasonableness. Considerations such as the extent of deference and the nature of the question as well as the Court’s previous rulings all weighed in favour of the conclusion that whether the 2015 Wholesale Code is authorized by paragraph 9(1)(
h) was a “reasonableness” exercise for which there could be only one answer. Insofar as the conflict between the Copyright Act and the Broadcasting Act was concerned, the standard of review was correctness. This was a question of competing or conflicting legislative schemes and correctness governed the question whether the exercise of paragraph 9(1)(
h) of the Broadcasting Act conflicted with the Copyright Act . This appeal pivoted on the intention of Parliament and whether Parliament intended, through paragraph 9(1) (
h) of the Broadcasting Act , to give the CRTC jurisdiction to enact measures directly affecting PUs. The Order and the Code which it makes binding are not “too great a stretch” from what Parliament intended but, in fact, are directly within its contemplation. On the basis of the context within which paragraph 9(1)(
h) is situated, the Order and the Code are within the CRTC’s jurisdiction. Also, since the terms and conditions of affiliation agreements directly dictate the terms on which consumers are offered programming services, by necessary implication, paragraph 9(1)(
h) of the Broadcasting Act must include the ability to affect affiliation agreements. The CRTC could not effectively impose broadcasting policy on the distribution of programming services without regulating affiliation agreements, either through a mechanism like the 2015 Wholesale Code or through conditions of licence. As to a possible conflict of the 2015 Wholesale Code with the Copyright Act , some provisions of the Code constrain how the copyright holder may exercise its copyright by limiting some of the terms and conditions it is allowed to include in the affiliation agreement. This does not violate paragraph 3(1) (
f) or subsection 13(4) of the Copyright Act . The Code preserves the copyright holder’s right to choose whether to communicate its work or not. The PU is free to reject the terms offered at any time. The appellants retain their right to exclude anyone from using their works if they choose to do so. Thus, adherence to both the Code and the Copyright Act is possible and there is no operational conflict between the Code and paragraph 3(1)(
f) or subsection 13(4) of the Copyright Act . STATUTES AND REGULATIONS CITED Broadcasting Act , S.C. 1991, c. 11, ss. 2 “distribution undertaking”, “programming undertaking” 3, 5(1), 9, 10, 31. Broadcasting Distribution Regulations , SOR/97-555, ss. 12(4), 15 , 12 –15.02. Canadian Charter of Rights and Freedoms , being
Part I of the Constitution Act, 1982 ,
Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]. Canadian Radio-television and Telecommunications Commission Act , R.S.C., 1985, c. C-22. Competition Act , R.S.C., 1985, c. C-34, s. 32. Copyright Act , R.S.C., 1985, c. C-42, ss. 2 “broadcaster”, 3, 13(4), 21, 31.
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Almon Equipment Limited, 2010 FCA 193,[2011] 4 F.C.R. 203; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Nolan v. Kerry (Canada) Inc.,2009 SCC 39, [2009] 2 S.C.R. 678; ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140;M. v. H., (SCC), [1999] 2 S.C.R. 3, (1999), 171 D.L.R. (4th) 577; David Suzuki Foundation v. Canada (Fisheries andOceans), 2012 FCA 40, [2013] 4 F.C.R. 155; Pham v.
Secretary of State for the Home Office, 2015 UKSC 19 (BAILII), [2015] 1 AllE.R. 1015; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 154 D.L.R. (4th) 193; Canadian Artists’Representation v. National Gallery of Canada, 2014 SCC 42, [2014] 2 S.C.R. 197; Théberge v. Galerie d’Art du Petit Champlain inc.,2002 SCC 34, [2002] 2 S.C.R. 336; Astral Media inc. and its licensed subsidiaries, Broadcasting Decision CRTC 2013-310. REFERRED TO: Quinn v. Leathem, [1901] A.C. 495 (H.L.); Bell Canada v.
Canada (Attorney General), 2017 FCA 249, [2018] 4 F.C.R. 300, 154 C.P.R.(4th) 85, leave to appeal to S.C.C. granted, [2018] 1 S.C.R. v.; Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th)149; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770; Kanthasamy v. Canada (Citizenship andImmigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982, (1998), 160 D.L.R. (4th) 193; Baker v.
Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004SCC 19, [2004] 1 S.C.R. 485; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135;Canada (Attorney General) v. Boogaard, 2015 FCA 150, 474 N.R. 121; Garneau Community League v. Edmonton (City), 2017 ABCA374 , 26 Admin. L.R. (6th) 304; Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6, 416 D.L.R. (4th) 579; BellCanada v.
Canada (Canadian Radio-Television and Telecommunications Commission), (SCC), [1989] 1 S.C.R. 1722,(1989), 60 D.L.R. (4th) 682; Genex Communications v. Canada (Attorney General), 2005 FCA 283, [2006] 2 F.C.R. 199; Thibodeau v.Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; Harvard College v. Canada (Commissioner of Patents), 2002 SCC 76, [2002] 4 S.C.R.45; ProLife Alliance, R. (on the application of) v. British Broadcasting Corporation, 2003 UKHL 23 (BAILII), [2004] A.C. 185; Canada(Public Safety and Emergency Preparedness) v. Tran, 2015 FCA 237, [2016] 2 F.C.R. 459.
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APPEAL from two decisions of the Canadian Radio-television and Telecommunications Commission (Broadcasting Regulatory Policy CRTC 2015-438 (the 2015 Wholesale Code) and Broadcasting Order 2015-439 (the Order)) whereby the 2015 Wholesale Code establishes certain parameters on the negotiation and content of affiliation agreements and the Order makes the 2015 Wholesale Code binding on broadcasting distribution undertakings. Appeal allowed, Rennie J.A. dissenting. APPEARANCES Steve Mason , Brandon Kain and Richard J. Lizius for appellants.
Christian Leblanc and Michael Shortt for respondents Blue Ant Media Inc. et al. Judith Robinson and Eric Bellemare for respondent Cogeco Communications Inc. Michael H. Ryan and Christopher C. Rootham for respondent Telus. SOLICITORS OF RECORD McCarthy Tétrault LLP , Toronto, for appellants. Fasken Martineau DuMoulin LLP , Montréal, for respondents Blue Ant Media Inc. et al. Norton Rose Fulbright Canada LLP , Montréal, for respondent Cogeco Communications Inc. Nelligan O’Brien Payne LLP , Ottawa, for respondent Telus. The following are the reasons for judgment rendered in English by Rennie J.A. (dissenting):
I. Introduction [ 1 ] Television services are provided to Canadians through the interaction of two types of commercial entities. Programming undertakings create content, either on their own or under licence from others. They transmit their programs to broadcasting distribution undertakings, which retransmit the programs through their networks, whether cable, satellite or broadband.
There is, in effect, a symbiotic relationship between programming undertakings and broadcasting distribution undertakings, the commercial terms of which are negotiated and reflected in “affiliation agreements”. [ 2 ] In 2015, the Canadian Radio-television and Telecommunications Commission (CRTC) imposed a policy to govern affiliation agreements, or simply, the contracts, between programming undertakings (PUs) and broadcasting distribution undertakings (BDUs).
The CRTC implemented this policy through two decisions: Broadcasting Regulatory Policy CRTC 2015-438 [ The Wholesale Code (24 September 2015)] (the 2015 Wholesale Code or the Code), and Broadcasting Order 2015-439 [ Distribution of the programming of licensed programming undertakings by broadcasting distribution undertakings ] (the Order). The 2015 Wholesale Code establishes certain parameters on the negotiation and content of affiliation agreements.
The Order makes the 2015 Wholesale Code binding on broadcasting distribution undertakings and requires them to distribute programs according to prescribed terms and conditions. [ 3 ] I will turn to the 2015 Wholesale Code and its implications for affiliation agreements shortly, but pause to emphasize that while the Code, via the Order, is expressly binding only on BDUs (distribution licensees), it necessarily affects those that are counter-party to any negotiation and contract with a BDU, namely the programming undertakings. [ 4 ] Bell Canada and Bell Media Inc. appeal these decisions under
section 31 of the Broadcasting Act , S.C. 1991, c. 11. Bell asserts that the mandate vested in the CRTC by
section 3 of the Broadcasting Act to implement the broadcasting policy for Canada does not authorize the CRTC to interfere in the economic relationship between BDUs and PUs. Its argument is twofold: the 2015 Wholesale Code is not authorized by paragraph 9(1) (
h) of the Broadcasting Act and secondly, the Code violates Bell’s copyright interests guaranteed under paragraph 3(1) (
f) and subsection 13(4) of the Copyright Act , R.S.C.,1985, c. C-42. In consequence, the 2015 Wholesale Code and Order are ultra vires the CRTC’s powers. [ 5 ] There is no doubt that the exercise by the CRTC of its authority in respect of BDUs will have effects, both direct and consequential, on PUs.
The question in their appeal, however, is whether, given the reach of the Code and its effects, it is “too great a stretch from the core purposes [of] … and from the powers granted to the CRTC under the Broadcasting Act ” ( 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 paragraph 33 , per Rothstein J.). [ 6 ] In order to understand the issues in this appeal some context is necessary. II. Background [ 7 ] The Broadcasting Information Bulletin CRTC 2015-440 [
Interpretation of the Wholesale Code (24 September 2015)] (the Bulletin), released contemporaneously with the Code, explains that the Code and the implementing Order arise from a concern on the part of the CRTC about increasing vertical integration of programming and broadcasting distribution entities and resulting concentration of market power.
Beginning in 2011, the CRTC responded to this change in the commercial landscape through measures aimed at ensuring that vertical integration did not occur at the expense of a healthy wholesale market for the sale of program content, programming diversity and consumer choice as to types and combinations of programs they wish to receive and the platform or means by which they would receive programs.
Those measures included: • issuing non-binding guidelines for the negotiation of commercial agreements between PUs and BDUs, such as the Broadcasting Regulatory Policy CRTC 2011-601 [ Regulatory framework relating to vertical integration (21 September 2011)] (Ottawa: CRTC, 2011) (amended in 2011-601-1) (the 2011 Wholesale Code or the 2011 Code); • imposing conditions of licence and group-based licence renewals on a case by case basis; and • establishing a dispute resolution process to address impasses in negotiations between PUs and BDUs ( Broadcasting Distribution Regulations , SOR/97-555, ss. 12–15.02). [ 8 ] In 2015, the CRTC replaced the voluntary 2011 Code with the more comprehensive Wholesale Code and, via the 9(1)(
h) Order, required existing licensees to “abide” by the provisions in the 2015 Wholesale Code. A. The 2015 Wholesale Code [ 9 ] The Code is divided into five parts: • Application (sections 1–3); • Prohibitions (section 4); • Commercially unreasonable practices (section 5); • Commercially reasonable practices (sections 6–12); and • Affiliation agreements (sections 13–15). [ 10 ] The 2015 Wholesale Code applies to “licenced programming and distribution undertakings” (sections 1–3). BDUs and PUs are both defined terms under the Broadcasting Act :
Definitions
(1) In this Act, … distribution undertaking means an undertaking for the reception of broadcasting and the retransmission thereof by radio waves or other means of telecommunication to more than one permanent or temporary residence or dwelling unit or to another such undertaking; ( entreprise de distribution ) … programming undertaking means an undertaking for the transmission of programs, either directly by radio waves or other means of telecommunication or indirectly through a distribution undertaking, for reception by the public by means of broadcasting receiving apparatus; ( entreprise de programmation ) [Emphasis added.] [ 11 ] In the policy statement accompanying the Code, the CRTC explains that it intends to gradually “impose the Wholesale Code on all licensed [BDUs and PUs] by means of a condition of licence with a view to ultimately repealing the 9(1)(
h) order” (at paragraph 137). Indeed, many of the requirements of the Code are already included as conditions in the appellants’ licences (see Blue Ant memorandum of fact and law, Appendix B). The Order, which requires licensees to “abide” by the Code, bridges the gap between licence renewals and presumably seeks to ensure some degree of equivalency in licence conditions across the regulated industry. [ 12 ]
Section 4 of the Code sets out seven specific terms that are not permitted in affiliation agreements between PUs and BDUs. They include: (
a) terms that prohibit the distribution of programming services on a stand-alone basis; (
b) terms that prohibit the offering of programming services on a build-your-own-package or small package basis; (
c) provisions that unilaterally grandfather distribution on the same terms and conditions as the previously negotiated agreement; (
d) veto rights by PUs of BDU packaging changes; (
e) requirements to mirror existing analog tiers in a digital offering; (
f) most favoured nation (MFN) provisions, or any similarly worded provision that has the effect of guaranteeing terms as favourable as those agreed to with other parties in other affiliation agreements; and (
g) minimum penetration, revenue or subscription levels, except where negotiated by an independent programming service. [ 13 ]
Section 5 precludes commercially unreasonable practices, including: (
a) requiring an unreasonable rate (defined as other than fair market value); (
b) requiring an unreasonable volume-based rate card; (
c) requiring an unreasonable penetration-based rate card; (
d) requiring the acquisition of a program or service in order to obtain another program or service (tied-selling); (
e) imposing unreasonable terms and conditions that restrict the ability of a BDU to provide consumer choice; and (
f) imposing unreasonable terms and conditions that restrict a programming service or a BDU from providing programming on multiple distribution platforms. [ 14 ]
Section 6 describes what the CRTC considers to be commercially reasonable practices. It mandates that seven factors—6(
a) to 6(g)—be considered during negotiations to establish the fair market value of the wholesale rate for programming. Sections 7 to 12 are aimed at preventing vertically-integrated entities from discriminating against independent programming services.
In particular, sections 7 to 10 are aimed at the packaging and marketing of independent programming services, and sections 11 and 12 at ensuring multiplatform access to independent programming services. [ 15 ] Where an affiliation agreement has not been renewed by 120 days before its expiration date and where both parties confirm in writing their intention to renew, the Code requires that the dispute be referred to the CRTC for dispute resolution (section 13).
As I will explain, this requirement is a key component of Bell’s argument. [ 16 ] Finally, affiliation agreements and all other agreements regarding programming services are to be filed with the CRTC (sections 14–15). [ 17 ] With the context having been set, I turn to the substantive issues. III. Issues [ 18 ] Bell contends that the Code, and its enabling Order, are ultra vires the CRTC’s powers insofar as they affect its interests as a programming undertaking. Whether that argument succeeds lies in the answer to three subsidiary questions: A.
Is the decision of the Supreme Court of Canada in Cogeco dispositive of the issues in this appeal?
B. If Cogeco is not dispositive, is the Code within the power of the CRTC under paragraph 9(1) (
h) of the Broadcasting Act ? C. Does the Code conflict, in operation or purpose, with the Copyright Act ? [ 19 ] I will address the applicable standard of review in the context of issues B and C. Blue Ant Media, a respondent, raises the additional argument that the Court should, in the exercise of its discretion, bar Bell from any remedy by reason of its conduct. This will be addressed at the end of these reasons. IV. Analysis A.
Is the decision of the Supreme Court of Canada in Cogeco dispositive of the issues in this appeal? [ 20 ] Bell submits Cogeco stands for the principle that the CRTC cannot regulate any aspect of the economic and commercial relationship between PUs and BDUs. Bell contends that as the Code directly interferes in the manner and content of affiliation agreements and effectively limits, dilutes or negates some of its rights under the Copyright Act , the Code falls squarely within the scope of the prohibition in Cogeco .
Bell’s argument requires careful consideration of what Cogeco decided. [ 21 ] The issue in Cogeco was “whether the CRTC ha[d] the jurisdiction to implement the proposed value for signal regime” (VSR) ( Cogeco , at paragraph 14). The VSR, what it was and what it did, is critical to understanding Cogeco . [ 22 ] In 2010, the CRTC was concerned about the economic viability of broadcasters (which, in effect, meant only PUs because BDUs are not included in the definition of “broadcaster” under
section 2 of the Copyright Act ). In order to ensure that the public would continue to benefit from the diversity of programming offered by broadcasters, and relying on subsection 3(1) of the Broadcasting Act as the source of its jurisdiction, the CRTC proposed to create the VSR ( Cogeco , at paragraphs 1, 6–7, 21). [ 23 ] The VSR sought to alleviate the financial challenges faced by broadcasters by granting them new and exclusive rights to control the exploitation of their communication signals or works by retransmission.
The VSR allowed broadcasters to negotiate directly with BDUs for the retransmission of all of their signals. When broadcasters were unable to agree with a BDU on compensation for the distribution of their programming services, the VSR would have given broadcasters “deletion rights”, thereby preventing their retransmission by BDUs ( Cogeco , at paragraphs. 7, 19, 69). [ 24 ] In so doing, the VSR dealt directly with the subject matter of sections 21 and 31 of the Copyright Act .
Subsection 21(1) of the Copyright Act grants a broadcaster an exclusive, limited copyright in the communication signals it broadcasts, with paragraph (
c) giving it the sole right to authorize or prohibit the simultaneous retransmission by another broadcaster to the public. Since BDUs are not considered “broadcasters” under
section 2 of the Copyright Act , a broadcaster’s exclusive copyright under
section 21 does not include a right to prohibit a BDU from retransmitting its communication signals ( Cogeco , at paragraphs 48–50). This is critical, as the salient feature of the VSR was the right of broadcasters to prohibit BDUs from retransmitting their signals ( Cogeco , at paragraphs 19, 69). [ 25 ] Importantly, paragraph 3(1)(
f) of the Copyright Act protects the right of copyright holders to distribute their work by various means, including telecommunication. However,
section 31 of the Copyright Act creates a “user right” (or, an exception to copyright infringement) that allows BDUs to retransmit copyright protected works carried in local and distant (over-the-air) signals without the authorization of the copyright holder. The copyright holders in those works do not have the right to block the retransmission by BDUs of local and distant signals carrying their works ( Cogeco , at paragraphs 56, 58).
The decision in Cogeco pivots on the CRTC’s “creation of exclusive control rights over signals or programs” and the “right” of a broadcaster to require a BDU “to delete any program owned by the broadcaster” ( Cogeco , at paragraphs 7, 13, 31–33), notwithstanding the rights granted under sections 21 and 31 of the Copyright Act . [ 26 ] The Supreme Court held that the VSR was not authorized by any provision in the Broadcasting Act , including paragraph 9(1) (h), and that it conflicted with the purposes of sections 21 and 31 of the Copyright Act .
For the Court, Rothstein J. said [at paragraph 13]: In my respectful opinion, for two reasons, the provisions of the Broadcasting Act , considered in their entire context, may not be interpreted as authorizing the CRTC to implement the proposed value for signal regime. First, a contextual reading of the provisions of the Broadcasting Act themselves reveals that they were not meant to authorize the CRTC to create exclusive rights for broadcasters to control the exploitation of their signals or works by retransmission.
Second, the proposed regime would conflict with specific provisions enacted by Parliament in the Copyright Act . (See also paragraph 68 of Cogeco .) [ 27 ] With respect to the Broadcasting Act , the Court ruled that the broad licensing and regulatory powers in sections 9 and 10 had to be read in light of the Broadcasting Act as a whole.
It found that not all links, however tenuous, between a licensing requirement and a broadcasting policy objective described in subsection 3(1) were sufficient to establish jurisdiction in the CRTC ( Cogeco , at paragraphs 25, 28–29). [ 28 ] In its reasoning, the Supreme Court observed that, in contrast to the Telecommunications Act , S.C. 1993, c. 38, which expressly granted the CRTC jurisdiction to ensure rates charged by Canadian carriers were just and reasonable, “none of the specific fields for regulation set out in s. 10(1) pertain to the … control [of] the direct economic relationship between the BDUs and the broadcasters [that is, programming undertakings]” ( Cogeco , at paragraphs 26, 29). [ 29 ] This phrase is the foundation of Bell’s argument in this appeal.
It submits that none of the specific fields in subsection 9(1) pertain to the control of the direct economic relationship between BDUs and PUs. [ 30 ] Significantly, the passages from Cogeco reproduced in paragraphs 78 and 80 of Bell’s memorandum omit a key sentence from Cogeco (bolded below) [at paragraphs 30–31]: However, the broadcasters submit that s. 10(1)( g ), which enables the CRTC to make regulations “respecting the carriage of any foreign
or other programming services”, and s. 9(1) ( h ), which empowers the CRTC to require a licensed BDU “to carry … programming services specified by the Commission”, together with the broad wording of ss. 10(1)(
k) and 9(1) ( b )(i), empower the CRTC to “dictate the terms of the carriage relationship between broadcasters and BDUs” (R.F., at para. 65). Thus, the CRTC would, in their opinion, have jurisdiction to implement the proposed regime . I cannot agree. On their face, ss. 9(1) (
h) and 10(1)(
g) could, for example, allow the CRTC to require the BDUs to distribute to Canadians certain types of programs, arguably, because they are deemed to be important for the country’s cultural fabric. However, it is a far cry from concluding that, coupled with ss. 10(1)(
k) and 9(1) ( b )(i), they entitle the CRTC to create exclusive control rights for broadcasters. [Emphasis added.] [ 31 ] When read in its context, the Supreme Court’s statement “I cannot agree”, was in response to the last sentence in paragraph 30. Indeed, as is clear from the last sentence in paragraph 31 of the decision, and the point on which the case turned, was that paragraph 9(1) (
h) did not “entitle the CRTC to create exclusive control rights”. [ 32 ] A reading of Cogeco , keeping in mind the particular exclusive control right created by the VSR, reveals that it cannot be interpreted as widely as urged by Bell. The Supreme Court decided whether the CRTC could give PUs “an exclusive right to require deletion of the programming to which they hold exhibition rights from all signals transmitted by the BDU” ( Cogeco , at paragraph 19), not whether the CRTC can regulate any aspect of the economic relationship between PUs and BDUs.
In relation to the latter , the Supreme Court merely stated that the fields of regulation in subsection 10(1) of the Broadcasting Act do not expressly authorize control of “the direct economic relationship between BDUs and the [PUs]” ( Cogeco , at paragraph 29). This statement has to be read and understood in light of what the VSR attempted to do and the question the Court was asked to decide. [ 33 ] I do not understand the Supreme Court to have concluded that any and all exercises of authority under paragraph 9(1) (h), which may have an effect, direct or incidental, on PUs, would be an overreach.
In the result, the extent to which paragraph 9(1) (
h) authorizes the CRTC to impose terms and conditions on the carriage of “programming services” by BDUs, which will incidentally affect PUs, remains an open question. I therefore agree with the respondents that Cogeco is not dispositive of whether paragraph 9(1) (
h) authorizes the CRTC to make the Code binding. [ 34 ] For similar reasons, Cogeco is also not determinative of the copyright conflict issue in this appeal. The Supreme Court decided that the CRTC could not, by granting an exclusive control right, create a functional equivalent to a copyright for broadcasters (PUs as copyright owners) that was deliberately withheld from the Copyright Act . In
section 21 of that Act, Parliament set out a carefully tailored regime relating to the specific kind of copyright with respect to communication signals and a specific type of user right with respect to works transmitted in over-the-air signals under
section 31 of the Copyright Act . The VSR, however, created exclusive control rights “for broadcasters to control the exploitation of their [over-the-air] signals or works by retransmission” ( Cogeco , at paragraphs 13, 19, 31, 33, 69–70). The VSR, in effect, created new copyright, and conflicted with the purpose of sections 21 and 31 of the Copyright Act ( Cogeco , at paragraphs 13, 62–64, 67–70, 75–76).
As I will explain, in contrast to the VSR, the Code does not create a “special right” akin to that contemplated by the VSR. [ 35 ] In considering the effect of Cogeco , guidance can be found in the principle expressed in R. v. Henry , 2005 SCC 76 , [2005] 3 S.C.R. 609 ( Henry ), at paragraph 53 , citing Quinn v. Leathem , [1901] A.C. 495 (H.L.) , that “‘a case is only an authority for what it actually decides’”. Of particular resonance in this appeal is Binnie J.’s observation at paragraph 57 that: …. All obiter do not have, and are not intended to have, the same weight.
The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. [ 36 ] Having concluded that Cogeco is not dispositive does not mean that it is of no consequence to this appeal. To the contrary, and consistent with Henry , the principles of statutory
interpretation employed by the Supreme Court of Canada to read the Broadcasting Act are binding. I note, in particular, Rothstein J.’s observation at paragraph 23 of Cogeco that references to the Broadcasting Act ’s policy objectives in subsection 3(1) are, without more, insufficient to ground jurisdiction. Of equal force and effect is the Court’s recognition that the property interests created by the Copyright Act cannot be constrained or diminished unless authorized by Parliament.
This bears on the second branch of Bell’s argument which is founded on its copyright interests. [ 37 ] In conclusion, whether, to borrow the language of Rothstein J., the 2015 Wholesale Code “is too great a stretch from the core purposes intended by Parliament” and from the power granted to the CRTC under the Broadcasting Act ( Cogeco , at paragraph 33) and engages in the direct economic relationship in a manner not contemplated by Parliament remains a live question, the answers to which lie in an understanding of the intention of Parliament in enacting paragraph 9(1) (h).
Whether the Code diminishes or conflicts with Bell’s copyright interests also remains unsettled. B. What is the standard of review? [ 38 ] The parties do not agree on the standard of review. Bell contends that the question whether the Code is authorized by paragraph 9(1) (
h) of the Broadcasting Act is jurisdictional and attracts a correctness standard of review. The respondents contend that the question is simply a matter of
interpretation of a home statute by a tribunal and that the standard of review is reasonableness. Insofar as the conflict with the Copyright Act is concerned, Bell says that this too should be examined through a correctness lens, as that act is not the home statute of the CRTC. [ 39 ] The parties pressed their positions with respect to standard of review. Given the jurisprudence it is easy to understand why that was so. From the respondents’ perspective, reasonableness triggers the presumption which requires the Court to defer to the CRTC’s
interpretation of its home statute. This makes short work of the appeal. A favourable result is virtually assured by the near-irrefutable nature of that presumption. From the appellants’ perspective, correctness opens the door, at least a crack, to a closer analysis of the legislation and potentially a different result. [ 40 ] Bell makes a compelling case that this is a jurisdictional question. Parliament made a clear and express choice to limit the CRTC’s power to make orders under paragraph 9(1) (
h) to BDUs and the “programming services” which they carry. In Bell’s view, the
Code derogates from Bell’s rights under the Copyright Act and circumvents Parliament’s clear language with respect to copyright. [ 41 ] Jurisdictional questions are, however, difficult to identify. We know that a jurisdictional question is one the answer to which must be correct. But this sheds little light on the defining characteristics of a jurisdictional question. As observed by Brown J. in West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal) , 2018 SCC 22 , [2018] 1 S.C.R. 635 ( West Fraser ) “the distinction between matters of statutory
interpretation which implicate truly jurisdictional questions and those going solely to a statutory delegate’s application of its enabling statute will be, at best, elusive” (at paragraph 124).
The definitional challenges around jurisdictional questions continue to vex courts, here and abroad. [ 42 ] The distinction between jurisdictional and non-jurisdictional questions has been described by one judge of the High Court of Australia as “chimerical” ( Re Minister for Immigration and Multicultural Affairs; Ex parte Miah , [2001] HCA 22 (AustLII), (2001), 206 C.L.R. 57 ( Ex parte Miah ), at paragraph 212 ), as a “vague and probably undefinable concept” by the New Zealand Court of Appeal ( Bulk Gas Users Group v.
Attorney General , [1983] NZLR 129 (C.A.), at page 136) and as a “mirage” by the Supreme Court of the United States ( City of Arlington, Texas v. Federal Communications Commission , 569 U.S. 290 (2013), at paragraph 5). Academics have been no less restrained in their criticism.
Professor Daly notes “the weak theoretical basis for the category and the historical difficulty in applying the concept … in a clear and coherent manner” [footnote omitted] (Paul Daly, “ Dunsmuir ’s Flaws Exposed: Recent Decisions on Standard of Review” (2012), 58:2 McGill L.J. 483, at page 492 (Daly, Dunsmuir ’s Flaws Exposed)). [ 43 ] The Supreme Court of Canada, echoing the suggestion of the High Court of Australia that the concept be “interred” ( Ex parte Miah , at paragraph 212) (Kirby J.)), has hinted that it might “euthanize” this category of review ( Canada (Canadian Human Rights Commission) v.
Canada (Attorney General) , 2018 SCC 31 , [2018] 2 S.C.R. 230 ( CHRC ), at paragraph 41 , citing Binnie J. in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654 ( Alberta Teachers ), at paragraph 88 ). [ 44 ] That said, the Supreme Court has also confirmed the centrality of jurisdictional issues in ensuring that Parliamentary intention is respected. Even Dunsmuir v.
New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ( Dunsmuir ), at paragraph 30 notes that “the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’s authority” (citing Thomas A. Cromwell, “Appellate Review: Policy and Pragmatism” in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice , V- 1, p. V-12). As Cromwell J. noted in Alberta Teachers [at paragraph 94]: I agree that the use of the terms “jurisdiction” and “ vires ” have often proved unhelpful to the standard of review analysis.
This, however, should not distract us from the fundamental principles: as a matter of either constitutional law or legislative intent, a tribunal must be correct on certain issues in the sense that the courts and not the tribunal have the last word on what is “correct”. [ 45 ] There is also considerable thoughtful and compelling academic commentary in support of the concept (see e.g. T.R.S. Allan, “Judicial Review: A Critique of ‘Due Deference” (2006), 65:3 Cambridge L.J. 671).
Professor Daly recognizes that the “category” of jurisdictional error could be removed “without undermining the availability of review for correctness” (Daly, Dunsmuir ’s Flaws Exposed, at page 492, note 36). Put otherwise, the problem lies in the category, not with the principles which it embodies. [ 46 ] Thus, as Brown J. observed in CHRC , at paragraph 110, “[w]hile … one might ‘euthanize’ the category of true jurisdictional questions, it would not follow that such questions themselves will disappear” [italics in original].
This is because there is a symbiotic relationship between the rule of law and jurisdiction. Jurisdictional issues are a label given to a fundamental principle—that all exercises of power by public authorities must be authorized by law. Parliament is acutely cognizant of this principle.
In granting rights of appeal or judicial review, Parliament recognizes the incompatibility of an unfettered discretion in tribunals to decide the scope of their jurisdiction with the fundamentals of the Westminster parliamentary democracy, and mandates the courts to demarcate the boundaries. [ 47 ] The persistency of jurisdictional questions is telling. They have coursed through our jurisprudence for over half a century, playing an integral role in ensuring the rule of law remains more than mere words.
Efforts to categorize jurisdiction may have floundered, but this should not be understood either as a problem with the principle or as a rationale for its elimination. [ 48 ] As observed by Brown J. in CHRC , despite definitional challenges of jurisdictional questions, the underlying principle that tribunals must remain squarely within the limits of the mandate that Parliament (and not the tribunal itself) determined, cannot be erased: “[T]here will remain questions that tend more to the former, including matters which are still widely regarded as jurisdictional by lower courts” ( CHRC , at paragraph 111).
The question as to the CRTC’s authority under the Broadcasting Act in this appeal is precisely of that nature. It is one that tends to the jurisdictional, so much so that there is only one reasonable
interpretation. [ 49 ] We do not, however, need to decide whether the question in this appeal is jurisdictional. The standard of review to be applied to orders made under paragraph 9(1) (
h) has previously been determined by this Court as reasonableness ( Bell Canada v. Canada (Attorney General) , 2017 FCA 249 , [2018] 4 F.C.R. 300 , 154 C.P.R. (4th) 85 ( NFL ), at paragraph 9 , leave to appeal to S.C.C. granted, 37896 (10 May 2018) [[2018] 1 S.C.R. v]). Stare decisis requires that it should be followed and applied here ( Miller v. Canada (Attorney General) , 2002 FCA 370 , 220 D.L.R. (4th) 149). [ 50 ] That said, reasonableness “is a deceptively simple omnibus term” ( Alberta Teachers , at paragraph 87 ( per Binnie J.)) and, if it is to be applied, it must be given definition and content.
The Court should be transparent about what it means when it conducts a reasonableness review, and identify the factors which shape the degree of scrutiny or intensity of review it intends to bring to the question. To that end, I begin with a few observations about reasonableness and deference. [ 51 ] Reasonableness, in its conception, is a highly elastic concept. Notwithstanding rule of law considerations, it tolerates the proposition that different decision makers can reach contradictory
interpretations and both be reasonable ( McLean v. British Columbia (Securities Commission ), 2013 SCC 67 , [2013] 3 S.C.R. 895 ( McLean ), at paragraphs 32–33 ; CHRC , at paragraph 52; Wilson v. Atomic Energy of Canada Ltd. , 2016 SCC 29 , [2016] 1 S.C.R. 770, at paragraph 17 ( per Abella J. ( Wilson ), see also paragraphs 70–71 wherein McLachlin C.J.C., Karakatsanis, Wagner, Gascon, Cromwell JJ. concurred on this point)). The other end of the spectrum also contemplates circumstances where there can be only one reasonable
interpretation, and “no degree of deference can justify [the] acceptance” of any other
interpretation ( McLean , at paragraph 38 ).
[52] Reasonableness also applies, without differentiation, across a wide range of decisions made by a broad spectrum of decisionmakers: ad hoc arbitrators, quasi-judicial tribunals, permit and licensing authorities and large specialized standing quasi-judicial tribunalssupported by professional staff, such as the CRTC, the National Energy Board and the Canadian Transportation Agency, for example. Italso applies to ministers of the Crown and the Governor in Council, whether acting under prerogative or statute. Reasonableness alsoembraces, without distinction, entirely distinct functions and responsibilities.
At one end of the continuum stand administrative andadjudicative decisions affecting the interests of a single party on a discrete set of facts. At the other end are highly discretionary, policy-infused decisions, such as those of the Governor in Council as to whether a certain matter is in the public interest. There are many pointsin between, depending on the legal and factual matrix. [53] The existing administrative law framework, predicated as it is on categories, forces a choice between reasonableness orcorrectness review.
It assumes that there is a bright line between jurisdictional questions and all other types of decisions. But the linebetween the two, if there is one, becomes blurred as the range of reasonable outcomes narrows. When it tapers to only one reasonableoutcome, correctness and reasonableness review merge and become indistinguishable. This can arise in the context of near-jurisdictionalissues (Wilson, at paragraph 27) as well as in the context of specific exercises of discretion: Kanthasamy v.
Canada (Citizenship andImmigration), 2015 SCC 61, [2015] 3 S.C.R. 909. [54] The challenges inherent with categorization and classification as an over-arching framework were identified as early as 2003.Writing prior to Dunsmuir, the Supreme Court observed that the standard of review should focus on “the polar star of legislative intent”based on “principled analysis rather than categories” (C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, atparagraph 149). More recently, in Canadian Copyright Licensing Agency (Access Copyright) v.
Canada, 2018 FCA 58, 422 D.L.R. (4th)112, Stratas J.A. observed [at paragraph 58]: Put another way, the issue whether an administrative tribunal is inside or outside the “jurisdictional” fences set up by Parliament is reallyan issue of where those fences are—in other words, an
interpretation of what the legislation says about what the administrative decision-maker can or cannot do. [55] Stratas J.A. continued and concluded [at paragraph 75] “[t]here comes a point where an administrative decision-maker adopts aview of its statutory powers and the statutory scope of its authority that is neither acceptable nor defensible.
When that happens,reviewing courts acting under the reasonableness standard will quash the administrative decision, thereby keeping the administrativedecision-maker within its authority.” [56] In sum, the focus of the standard of review analysis should be on discerning legislative intent according to received principles ofinterpretation—not on choosing categories and applying a priori presumptions. If, after considering the statute, a court concludes that thedecision was not authorized by the legislation, it cannot stand.
The label applied to the exercise—whether unreasonable or jurisdictional—is of no consequence. [57] As manifested by the arguments in this appeal, the stark choice between reasonableness and correctness has repercussions forboth the parties and the courts. [58] First, as Binnie J. cautioned in Dunsmuir, threshold debates about standard of review lead to lengthy and arcane discussions,which have little to do with the merits of the case.
This truism has given rise to the contemporary view that the focus of judicial reviewshould be on answering whether the particular power or decision was authorized by law, not on debating the category of review (seegenerally the contributions listed in Paul Daly, “The Dunsmuir Decade/10 ans de Dunsmuir” (11 January 2018), online: AdministrativeLaw Matters <http://www.administrativelawmatters.com/blog/2018/01/11/the-dunsmuir-decade10-ans-de-dunsmuir/>, (A Decade ofDunsmuir / Les 10 ans de Dunsmuir, forthcoming C.J.A.L.P., Fall 2018). [59] Binnie J. also urged that the courts move the parties away from arguing about tests and back to arguing about the substantivemerits of their cases.
In collapsing three standards of review into two, Binnie J. wrote “the result of today’s decision may be like the boldinnovations of a traffic engineer that in the end do no more than shift rush hour congestion from one road intersection to another withoutany overall saving to motorists in time or expense” (Dunsmuir, at paragraph 139). This has proven prescient.
As noted by Professor D.R.Knight, in Vigilance and Restraint in the Common Law of Judicial Review (New York: Cambridge University Press, 2018), at page 195(Knight, Vigilance and Restraint), “[j]udicial review doctrines which mostly concentrate on judicial methodology, without stronglyelaborating norms for the administration, undermines its effectiveness.
Again, the Canadian experience illustrates this criticism”. [60] The second consequence arising from the stark choice between “categories” is that the compelling points of law and legal policyencompassed by the standard of review that is rejected are jettisoned, in their entirety (see e.g. dissenting opinions in Edmonton (City) v.Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 (Edmonton East), at paragraph 63 (per Côté,Brown JJ., McLachlin C.J.C., Moldaver J. concurring) and in West Fraser, at paragraphs 52–111 (per Côté J.), at paragraphs 112–125(per Brown J.); see also the reasons concurring in the result of Côté, Rowe JJ. in CHRC, at paragraphs 73–81).
The adverse policyconsequences of the categorical approach are also detailed by L. Sossin in “Why the Standard of Review Matters (or at least why itshould)!” (September 25, 2018), online: Sossin’s Law Blog <http://sossinblog.osgoode.yorku.ca/2018/09/why-the-standard-of-review-matters-or-at-least-why-it-should/>. [61] Reasonableness, nevertheless, grants reviewing judges “a broad discretion to choose from a variety of levels of scrutiny from therelatively intense to the not so intense” (Alberta Teachers, at paragraph 87 (per Binnie J.)). In Canada (Attorney General) v.
CanadianHuman Rights Commission, 2013 FCA 75, 444 N.R. 120, at paragraphs 12–14, Stratas J.A. articulated a number of factors which, “…while situated comfortably in the context of a deferential application of reasonableness review”, nevertheless point to intense scrutinyand narrowing of reasonable outcomes. The most critical of these is whether the decision turned on statutory
interpretation, as in thisappeal. [62] Factors both internal and external to the decision under review inform the intensity of scrutiny. The use of these contextualfactors has a long provenance. From Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC),[1998] 1 S.C.R. 982, (1998), 160 D.L.R. (4th) 193, at paragraphs 29–38 to Baker v. Canada (Minister of Citizenship and Immigration),
(SCC), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193 to Dunsmuir, at paragraphs 62 to 64 to West Fraser,contextual factors have been considered constructive in informing the answer to the question as to the role Parliament intended the courtto play in relation to any particular decision. While contextualism has its critics, its use has not lead to a proliferation of litigation. To thecontrary, it cannot be avoided without turning a blind eye to Parliamentary intention and the stakes at hand for the parties. [63] There are also other advantages.
As noted by Brown J. in West Fraser, at paragraph 124, the intensity of review allows for“sufficient flexibility to reflect the varied nature of administrative bodies, the question before them, their decisions, their expertise andtheir mandates”.
Brown J. continued and noted that an intensity of review approach, which focuses on the language of Parliament and thenature of the issue is consistent “with the dual constitutional functions performed by judicial review: upholding the rule of law, andmaintaining legislative supremacy (Dunsmuir, at paras. 27 and 30)” (West Fraser, at paragraph 124). [64] This observation reflects an underlying concern, in both the jurisprudence and academic commentary, about the consistency of abinding presumption of deference to tribunal
interpretations of statutes with Parliamentary intent reflected in rights of appeal or review,the rule of law and legislative supremacy. I will turn to this issue shortly in the discussion of the degree of deference to be accorded thedecision under appeal. [65] Reasonableness as a standard of review has been described as points on a continuum from reasonable to the unreasonable, as asingle standard which applies with increased focus or scrutiny or, as Professor Knight aptly notes, “[r]easonableness … ‘floats’ along aninfinite spectrum of deference” (Knight, Vigilance and Restraint, at page 206).
These metaphors describe that which is a single question—what role did Parliament intend the reviewing court play in relation to the issue before it, and what are the criteria or markers whichguide the court in conducting its review? These contextual factors ensure that judicial review does not become an entirely subjectiveenterprise, with a consequential erosion of predictability and efficacy of administrative bodies. [66] The legislation is the first and controlling point of reference in answering the question as to the role a court should play inrelation to the decision in question.
The degree of judicial scrutiny may be calibrated by the existence of a privative clause; whetherParliament granted a right of appeal or a more limited recourse in judicial review; the nature of the decision (the extent to which it isadjudicative as opposed to policy or legislative); the extent of the discretion granted and the degree to which it truly draws on expertiseunique to a tribunal; the question before the court and its consequences for the parties; and importantly, rule of law considerations.
Theseare all beacons that guide the answer to the question of the degree of scrutiny with which the decision is to be assessed. [67] The language of Parliament can inform the intensity of review in another fashion. The legislature may be prescriptive about thedecision making process and the factors to be considered by a tribunal. That, along with a grant of judicial oversight, supports closescrutiny. As noted by Stratas J.A. in Canada (Attorney General) v.
Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203, themore prescriptive and directive Parliament is to the content of decision making, the lesser the discretion and the greater the scrutiny. Incontrast stand cases involving a broad discretion, resulting in a range of possible outcomes and diminished scrutiny. [68] How then, should the Court consider reasonableness of the decision in this case? What indicia or markers inform the degree ofscrutiny the Court should apply to the question whether the 2015 Wholesale Code is authorized by paragraph 9(1)(h)?
(1) What Parliament said about the role of the court [69] The legitimacy of standard of review as doctrine depends on its respect for Parliament’s intention. Consequently, anyconsideration of the standard of review begins with an inquiry into the role Parliament intended the supervisory court to play in relationto any particular decision. [70] If the standard of review is premised on respect for legislative intention, the words of
section 31 of the Broadcasting Act must begiven meaning. Parliament said that, subject to relevant statutory provisions in the Broadcasting Act, decisions of the CRTC are “finaland conclusive” (Broadcasting Act, subsection 31(1)). It also said that appeals lie to this Court on “a question of law or a question ofjurisdiction” (Broadcasting Act, subsection 31(2)).
Parliament was concerned about the CRTC and its jurisdiction—so much so that theterm appears no fewer than eight times in the Broadcasting Act, six of which are relevant for this purpose. (This is not to suggest that theweight of the argument increases with the number of words.) [71] Although a “privative clause[] deter[s] judicial intervention, a statutory right of appeal may be at ease with it, depending on itsterms” (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 55). In other words, aprivative clause is not determinative.
It is a factor which must be considered in calibrating the degree of scrutiny. [72]
Section 31 of the Broadcasting Act is a clear indication that there are limits to the remit of Parliament’s mandate to the CRTC.By these words, Parliament indicated that it wanted the Court to demarcate the borders of the CRTC’s jurisdiction as the word iscommonly understood. Indeed, to conclude otherwise would be to say that Parliament delegated an unfettered mandate to the agency todecide the scope of its own jurisdiction. Were that the case,
section 31 would have been unnecessary.
(2) Nature of the question [73] The nature of the question will also inform the degree of scrutiny. Questions of law merit close review although the intensitymay vary with the nature of the question. Discretionary decisions, which are highly fact based or infused by policy, merit a highlydeferential approach. This requires a precise definition of the true question before the Court. [74] The answer to the question before us is one of statutory
interpretation—text, context and purpose. This question is not a specific,narrow question focused on a discrete set of facts, nor does it turn on the understanding of technical matters which would be in thedomain of the CRTC; rather the question probes whether paragraph 9(1)(
h) allows the CRTC to directly or incidentally affect entities notexpressly mentioned within paragraph 9(1)(h). [75] Nor does the question ask us to review an adjudicative decision. The Order, and the Code which it mandates, is quasi-legislativein nature. The distinction between the two types of power has been recognized (United Taxi Drivers’ Fellowship of Southern Alberta v.
Calgary (City) , 2004 SCC 19 , [2004] 1 S.C.R. 485, at paragraph 5 ; Canadian National Railway Co. v. Canada (Attorney General) , 2014 SCC 40 , [2014] 2 S.C.R. 135, at paragraphs 51–52 ). There cannot be two equally reasonable answers where the question asks whether Parliament intended the CRTC to have the power to regulate affiliation agreements. It either did or it did not. It is not possible to have a range of outcomes here. [ 76 ] Bell does not challenge the substantive content of the Order.
Its point, and it is an important one, is that it is of no consequence whether the terms of the Code are reasonable—the CRTC has no business imposing conditions on PUs, reasonable or unreasonable. In this regard, “reasonableness” does a disservice to the substance of the argument before the Court. The struggle between the parties over the standard of review is a distraction from the question of legislative intention, and diverts attention to consideration as to whether or not the Code is reasonable—a non-issue.
The question of whether the CRTC has the authority to impose the Code cannot depend on the reasonableness of the conditions. The “appropriateness” of the terms of the Code is not the same question as whether the Code can apply to PUs. [ 77 ] West Fraser , contrary to the respondents’ submissions, does not advance their case. The decision in West Fraser did not collapse the question of the authority to make a regulation into the question whether the regulations are a valid exercise of a delegated power.
The majority in West Fraser found that the Board’s enactment of the regulation did not involve a question “of vires in the traditional sense” ( West Fraser , at paragraph 23). [ 78 ] Fairly characterized, Bell’s argument is not a disguised attempt to challenge the merits of the regulatory scheme encompassed by the Code. The issue before this Court does not go to the reasonableness of the Code, rather it asks whether it has the authority to enact the Code at all ( West Fraser , at paragraph 56 ( per Côté J. (dissenting)); Canadian Copyright Licensing Agency (Access Copyright) v.
Canada , 2018 FCA 58 , 422 D.L.R. (4th) 112 [cited above], at paragraph 80 ). The question is “a broad question of the tribunal’s authority” ( Nolan v. Kerry (Canada) Inc. , 2009 SCC 39 , [2009] 2 S.C.R. 678, at paragraph 34 ) and which, in essence, calls for a determination of Parliament’s intent in enacting paragraph 9(1) (h). [ 79 ] Thus viewed, the distinction between reasonableness and correctness standards of review is of no consequence. Regardless of the choice of label or category, the answer orbits around the same question of Parliamentary intent.
If, following consideration of the statute, Parliament did not authorize the CRTC to affect third party commercial interests, then any decision to the contrary is unreasonable. It is unreasonable because it was not authorized to do so by Parliament. The categorization of the standard of review is of little guidance in circumstances such as this.
(3) The extent of deference [ 80 ] The respondents place great emphasis on the deference accorded to tribunals in the
interpretation of home statutes and, in particular, the statement in Edmonton East , at paragraph 33, that “expertise is something that inheres in a tribunal itself as an institution”. If the CRTC has discretion to make orders it considers “appropriate”, its expertise extends to determining both the content of the orders, and, importantly for the purposes of this appeal, to whom they should apply. [ 81 ] While deference is a principle of judicial review, its application must be nuanced. [ 82 ] In ATCO Gas & Pipelines Ltd. v.
Alberta (Energy & Utilities Board) , 2006 SCC 4 , [2006] 1 S.C.R. 140 ( ATCO ), at paragraphs 21 , 27, the Supreme Court held that deference has no role to play in determining the jurisdiction of a tribunal’s mandate and that the expertise of a tribunal is not engaged when deciding the scope of its own powers. This statement has been overtaken by, or subordinated to, the strength of the presumption of deference on which the respondents rely. [ 83 ] Deference informs, but does not determine, the degree of scrutiny.
Whether the term or provision being interpreted is truly sui generis to the tribunal’s unique expertise, or is equally capable of consideration by courts, is a necessary element in considering the degree or extent of deference to be accorded. The rationale which underlies or is said to justify deference also varies. In the case of highly policy-based, public interest decisions, those of a minister of the Crown or Cabinet, deference is justified on the basis of democratic accountability—Parliamentarians are elected to make these decisions, not judges.
At the other end of the spectrum, deference is warranted in highly specialized areas. But under our existing framework, deference is now a presumption, applied across the board, to all decision makers, in all types of decisions. Deference may be the result, but it should arise as a consequence of a close analysis of the statute, the question before the court and its consequences. [ 84 ] Deference plays, without question, a central role in considering the substantive, technical content of the Code. Deference applies to the how , the means and measures employed.
However, in answering the question whether the CRTC can affect PU’s under paragraph 9(1) (h), there are no indicia that the CRTC has any greater expertise than that of the Court in reading the statute. Deference, according to Professor Daly, is most active where there is choice or ambiguity (Paul Daly “The Scope and Meaning of Reasonableness Review” (2015), 52:4 Alta. L. Rev. 799, at page 821).
To the same effect, Professor Knight notes, “[t]rue deference only arises where there is a range of outcomes that all meet the test of justification” (Knight, Vigilance and Restraint , at pages 215–216); see also Canada (Attorney General) v. Boogaard , 2015 FCA 150 , 474 N.R. 121).
Here, there is no palette fitted with an assortment of hues and colours from which the CRTC may choose—the CRTC either has the authority to affect third parties or it does not. [ 85 ] The argument advanced by the respondents triggers the caution of Cromwell J. writing in Alberta Teachers , at paragraph 94, that “the fact that a legislative provision is in a ‘home statute’ has become a virtually unchallengeable proxy for legislative intent” and poses concerns for both rule of law and legislative supremacy principles.
This observation was echoed in Edmonton East , at paragraph 85, where the dissenting justices wrote that the assumption of an unlimited inherent expertise, including on matters of
interpretation, “risks transforming the presumption of deference into an irrebuttable rule”. Côté and Brown JJ. further noted that “[r]espect for legislative supremacy must leave open to the legislature the possibility of creating a non-expert administrative decision maker, or creating an administrative decision maker with expertise in some areas but not others” ( Edmonton East , at paragraph 85). [ 86 ] The need for a tailored and nuanced consideration of deference is also demonstrated by Professor Allan, who notes in in his book, The Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford: Oxford University Press, 2013), at pages 268–269 (Allan, The Sovereignty of Law )):
….The appropriate degree of deference is dictated, in each case, by analysis of the substantive legal issues arising. If properly conducted,the analysis will indicate the correct division of responsibilities between court and agency, making all due allowance for the exercise ofadministrative discretion and recourse to specialist expertise.
That division of responsibilities is itself the outcome of legal analysisattuned to the specific questions of legality arising: it cannot determine these questions, a priori, on the basis of general features of theseparation of powers divorced from the specific constitutional context. [Emphasis added in original.] [87] Deference, then, is part of the context, not an a priori determination of the outcome.
As Professor Allan notes, if deference isviewed as part of the context, rather than as pre-determined rule, it dissolves the antagonism between the rule of law and parliamentarysupremacy (Allan, The Sovereignty of Law, at page 228). [88] The degree of deference owed is gleaned from the statutory
interpretation exercise. Consideration should be given to whatParliament has said about the structure of the tribunal or agency, the tenure and mandate of its decision makers, whether it is a largestanding body with large professional staff, or individual ad hoc decision makers.
Subordinating a statute to a broad and uncriticalpresumption of expertise in all aspects of a tribunal’s mandate, with the consequential displacement of Parliament’s express expectationthat the courts are to perform a role in demarcating the boundaries of its legislation, lies at the heart of much of the tension in the currentjurisprudence. [89] Failing to consider whether there are parameters on the presumption of expertise has consequences.
If the presumption ofexpertise-based deference extends to the determination, by the tribunal itself, of the limits of its jurisdiction, then paragraph 9(1)(h)amounts to an unfettered discretion. Rothstein J. noted the point in Cogeco, at paragraphs 27–28: This broad, express grant of jurisdiction authorized the CRTC to create and use the deferral accounts at issue in [Bell Canada v. BellAliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764]. This stands in marked contrast to the provisions on which thebroadcasters seek to rely in this cas
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