2021 FCA 148, 2021 FCA 148

2021 FCA 148 A-45-19 Bell Canada, Cogeco Cable Inc., Rogers Communications Inc., Shaw Communications Inc., Vidéotron Ltd . and Telus Communications Inc. ( Applicants ) v.

Copyright Collective of Canada, Border Broadcasters Inc., Canadian Broadcasters Rights Agency, Canadian Retransmission Collective, Canadian Retransmission Right Association, Direct Response Television Collective Inc., FWS Joint Sports Claimants Inc., Major League Baseball Collective of Canada, Society of Composers, Authors and Music Publishers of Canada and Canadian Cable Systems Alliance ( Respondents ) A-47-19 Copyright Collective of Canada, Canadian Broadcasters Rights Agency, Canadian Retransmission Collective, FWS Joint Sports Claimants Inc., Border Broadcasters Inc., Canadian Retransmission Right Association, Society of Composers, Authors and Music Publishers of Canada and Direct Response Television Collective Inc. ( Applicants ) v.

Bell Canada, Cogeco Cable Inc., Rogers Communications Inc., Shaw Communications Inc., Vidéotron Ltd., Telus Communications Inc., Canadian Cable Systems Alliance, and Major League Baseball Collective of Canada Inc. ( Respondents ) Indexed as: Bell Canada v. Copyright Collective of Canada Federal Court of Appeal, Rennie, de Montigny and Gleason JJ.A.—By videoconference, March 1 and 2; Ottawa, July 22, 2021.

Copyright — Judicial reviews of Copyright Board of Canada decision determining quantum of royalty rates payable under Television Retransmission Tariff, 2014-2018 — In Court file A-45-19, Board’s decision challenged by broadcasting distribution undertakings (BDUs), who distribute over-the-air distant television signals — In Court file A-47-19, Board’s decision challenged by collective societies (Collectives), who represent rights of copyright holders — Both parties disagreeing with application of Board’s overall “proxy” approach to setting royalty rates — BDUs, Collectives unable to reach agreement on tariff rates for retransmission of distant television signals for 2014–2018 period — Experts, industry witnesses presenting Board with three methodologies for setting tariffs for retransmission of distant signals: proxy, trend-analysis, direct-market approaches — Board characterized chosen proxy approach as “amalgam” between views of these experts — Applied assumptions to its approach in order to yield fair, equitable price — Also applied downward adjustments to initial proxy price to reflect price of distant signals, including “cost of programming”, “market power”, “program substitutability” adjustments — Declined to make certain adjustments for which it was unable to obtain estimate due to lack of reliable evidence — BDUs submitted that royalty rates fixed by Board not fair, equitable in circumstances, that Board unreasonably failed to make adjustment for simultaneous substitution — Issues in Court file A-45-19 whether Board erred in failing to make adjustment for simultaneous substitution, for relative viewing; erred in its determination of appropriate program substitutability adjustment — Issues in Court file A-47-19 whether Board: used incomplete, superseded version of payment data in its calculations; used wrong profit margin figure; erred in applying adjustment without evidence; erred in applying market power adjustment without evidence; failed to properly apply principles of procedural fairness in capping 2014, 2015 royalty rates — In case at bar, no precedent requiring application of stand-alone simultaneous substitution adjustment whatever context, irrespective of methodology adopted by Board — Board only obligated to consider evidence before it, develop methodology resulting in fair, equitable tariff, explain its reasoning for setting rates — Board’s assessment entitled to considerable deference — To extent Board’s amalgam proxy methodology not using total or relative amount of viewing to distant signals, no logical basis for Board to apply stand-alone adjustment to account for simultaneous substitution — Open for Board to find that no relative viewing adjustment necessary based on evidence on record — As to Board’s determination of appropriate program substitutability adjustment, Board’s decision within range of reasonable outcomes — Board erred, relied on superseded information in calculating total BDU payments to proxy services — Result arrived at by Board unreasonable, not based on evidence — Board not erring in applying adjustment for input, overhead costs without evidence — Up to Board, as expert decision maker, to come up with its best estimate in absence of firm evidence — Board not erring in applying “market power” adjustment without evidence — Fixation of Collectives on very narrow meaning of “market power” misplaced — Finally, Board not erring in capping rates for 2014, 2015 at rates originally proposed by Collectives — Board authorized pursuant to Act to modify or vary proposed tariff, impose terms, conditions as it considers appropriate while ensuring not to unfairly prejudice interested or affected persons — Board’s decision, to extent of its use of wrong pricing data in proxy price calculation, wrong profit margin, set aside — Appeal in A-45-19 dismissed; appeal in A-47-19 allowed in part.

These were applications for judicial review of a decision of the Copyright Board of Canada (Board) that determined the quantum of royalty rates payable under the Television Retransmission Tariff, 2014-2018 (Tariff, 2014 – 2018). The Board’s decision was challenged by six broadcasting distribution undertakings (BDUs) in Court file A-45-19, and by nine collective societies (Collectives) in Court file A-47-19. Both parties accepted the Board’s overall “proxy” approach to setting the royalty rate. They disagreed, however, with the application of that methodology in light of the evidentiary record.

The BDUs are “retransmitters” within the

meaning of subsection 31(1) of the Act . They distribute over-the-air distant television signals as part of cable, satellite or Internet Protocol television subscription services. The Collectives are authorized under the Act to represent the rights of copyright holders who are entitled to royalties for the retransmission of their works on over-the-air distant television signals. The retransmission of “distant” signals by BDUs requires payment of royalties to the various collective societies that have filed tariffs.

The Board is vested with the authority to approve the proposed tariffs, and to alter royalty rates that it deems appropriate. The BDUs and the Collectives were unable to reach an agreement on tariff rates for the retransmission of distant television signals for the period 2014 – 2018. A hearing took place during which the Board received evidence from experts and industry witnesses. Three methodologies were presented to the Board to set tariffs for the retransmission of distant signals: the proxy approach, the trend-analysis approach, and the direct-market approach.

Different proxy approaches were proposed by the parties’ experts. The Board characterized its chosen proxy approach as an “amalgam” between the views of these experts. The Board adjusted the experts’ respective methodologies and, as noted by the Board, assumptions were applied in order to yield a fair and equitable price. The Board did this in a series of steps, including applying a series of downward adjustments to the initial proxy price for it to reflect the price of distant signals. These included “cost of programming”, “market power” and “program substitutability” adjustments.

The Board declined to make certain adjustments for which it was unable to obtain an estimate due to the lack of reliable evidence. The Board capped the royalty rates for 2014 and 2015 at the levels originally proposed by the Collectives, respectively $1.06 and $1.14. For the years 2016–2018, the Board approved a rate of $1.17. The BDUs submitted that the royalty rates fixed by the Board exceed the amounts that would be fair and equitable in the circumstances, contrary to

section 66.501 of the Copyright Act . They also contended that the Board unreasonably failed to make an adjustment for simultaneous substitution. [1] At issue in Court file A-45-19 was whether the Board erred in failing to make an adjustment for simultaneous substitution and for relative viewing, and in its determination of the appropriate program substitutability adjustment.

At issue in Court file A-47-19 was whether the Board: used an incomplete and superseded version of the payment data in its calculations; used the wrong profit margin figure in its calculations; erred in applying an adjustment for input and overhead costs without evidence; erred in applying a market power adjustment without evidence; and failed to properly apply the principles of procedural fairness in capping the 2014 and 2015 royalty rates. Held , the application in A-45-19 should be dismissed; the application in A-47-19 should be allowed in part.

The BDUs’ argument calling for the application of a separate, stand-alone simultaneous substitution adjustment was without merit. In the case at bar, there was no precedent requiring the application of a stand-alone simultaneous substitution adjustment whatever the context and irrespective of the methodology adopted by the Board. The Board was not required to explain why it did not apply an adjustment for simultaneous substitution.

The only obligation of the Board was to consider the evidence before it, to develop a methodology that would result in a fair and equitable tariff, and to explain its reasoning for setting the rates as it did. The Board was entitled to prefer one set of experts and their approaches over others, and that kind of assessment is entitled to considerable deference. The Board did not ignore the evidence that was before it and provided reasons not to apply a simultaneous substitution adjustment.

To the extent that the Board’s amalgam proxy methodology does not in any way include or depend on the use of the total or relative amount of viewing to distant signals, there was no logical basis for the Board to apply a stand-alone adjustment to account for simultaneous substitution. The Board did consider the proposed adjustment for relative viewing from the BDUs’ expert, but chose not to apply it and never considered that it was required in the context of its methodology.

The Board’s findings that no relative viewing adjustment was necessary, and that in any event there was no reliable data with which to make it, were open to it based on the evidence on the record. As to the Board’s determination of the appropriate program substitutability adjustment, it assessed and evaluated the evidence before it, and there were no exceptional circumstances to reweigh and reassess the evidence herein. Moreover, the Board’s decision was well within the range of reasonable outcomes available to it based on the evidentiary record.

The Board erred and relied on superseded information in calculating the total BDU payments to the proxy services. While the difference in the annual retransmission royalty payments may not represent a substantial amount, the result arrived at by the Board was still unreasonable as it was not based on the evidence that was before it. The Board assigned a 25 percent profit margin to Canadian and U.S. proxy services on its mistaken reading of an expert’s opinion. Under the expert’s approach, the only correct profit margin adjustment for Canadian and U.S. proxy services would have been set at 10 percent.

This part of the Board’s reasons was therefore unreasonable. The Board did not err in applying an adjustment for input and overhead costs without evidence. This aspect of the Board’s reasons was reasonable and was entirely justified, intelligible and transparent. An input and overhead adjustment is necessary to distinguish between the value of the works being retransmitted and the profits or costs of the broadcasters. Once the necessity of such an adjustment is accepted, it is up to the Board, as an expert decision maker, to come up with its best estimate in the absence of firm evidence.

Here, the Board acknowledged that it had no figures to rely upon and made a conservative assessment based on its own expertise. Far from being unreasonable, this course of action was the only available one in the circumstances. The Board did not err in applying a “market power” adjustment without evidence. The dispute between the parties did not seem to relate to the justification for the adjustment, but rather on the alleged absence of evidence to support the quantification of that adjustment.

The Board did explain why it decided to apply the same reduction that had been applied in the first retransmission tariff in 1990. The fixation of the Collectives on a very narrow meaning of “market power” was misplaced. The Board was not “plucking an entirely irrelevant figure from another hearing to quantify and justify its market power adjustment”. On the contrary, the market power concept used in both the Board’s present decision and in its1990 decision refers to a similar, if not the same, reality.

Finally, the Board did not err in capping the rates for 2014 and 2015 at the rates originally proposed by the Collectives. The Board rightly recognized that it was authorized, under

section 73 of the Act (now

section 70 ), to modify or vary a proposed tariff and impose terms and conditions as it considers appropriate with the caveat that it must ensure not to unfairly prejudice interested or affected persons or give rise to some other procedural or substantive unfairness. The Board’s decision, to the extent of its use of the wrong pricing data in its proxy price calculation and of the wrong profit margin, was set aside. STATUTES AND REGULATIONS CITED Broadcasting Distribution Regulations , SOR/97-555 , s. 7(a).

Copyright Act, R.S.C., 1985, c. C-42, ss. 31(1),(2)(d), 66.501, 68(2)(b), 70, 71(2), 73. Definition of Local Signal and Distant Signal Regulations, SOR/89-254. Simultaneous Programming Service Deletion and Substitution Regulations, SOR/2015-240. Television Retransmission Tariff, 2009-2013,

(2013) C. Gaz. I, Supp. (November 30, 2013). Television Retransmission Tariff, 2014-2018,

(2019) C. Gaz. I, Supp. (August 3, 2019). CASES CITED APPLIED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, 441 D.L.R. (4th) 1. CONSIDERED: Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R.489; Re:Sound v. Canadian Association of Broadcasters, 2017 FCA 138, 148 C.P.R. (4th) 91; Canadian Association of Broadcasters v.Society of Composers, Authors and Music Publishers of Canada, 2006 FCA 337, 354 N.R. 310. REFERRED TO: Entertainment Software Association v.

Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, [2021] 1 F.C.R.374; CMRRA-SODRAC Inc. v. Apple Canada Inc., 2020 FCA 101; Canadian Association of Refugee Lawyers v. Canada (Immigration,Refugees and Citizenship), 2020 FCA 196, [2021] 1 F.C.R. 271; Canadian Private Copying Collective v. Canadian Storage MediaAlliance, 2004 FCA 424, [2005] 2 F.C.R. 654; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association,2011 SCC 61, [2011] 3 S.C.R. 654.

APPLICATIONS for judicial review of a decision of the Copyright Board of Canada (Tariff for the Retransmission of Distant TelevisionSignals, 2014-2018, CB-CDA 2019-056, ) that determined the quantum of royalty rates payable under theTelevision Retransmission Tariff, 2014-2018. Application in A-45-19 dismissed; application in A-47-19 allowed in part. APPEARANCES Gerald (Jay) Kerr-Wilson and Stacey Smydo for Bell Canada, Cogeco Cable Inc., Rogers Communications Inc., Shaw CommunicationsInc., Vidéotron Ltd., Telus Communications Inc., Canadian Cable System Alliance and Major League Baseball Collective of CanadaInc.

David W. Kent and Jonathan O’Hara for Canadian Broadcasters Rights Agency. John E. Callaghan, Laurent Massam and James Green for Copyright Collective of Canada. Daniel G. C. Glover for Canadian Retransmission Collective. Gregory A. Piasetzki and William Regan for FWS Joint Sports Claimants Inc. Mark Hayes for Canadian Retransmission Right Association. Ryan Sheahan for Border Broadcasters Inc. D. Lynne Watt for Society of Composers, Authors and Music Publishers of Canada. No one appearing for Direct Response Television Collective Inc.

SOLICITORS OF RECORD Fasken Martineau DuMoulin LLP, Ottawa, for Bell Canada, Cogeco Cable Inc., Rogers Communications Inc., Shaw CommunicationsInc., Vidéotron Ltd., Telus Communications Inc., Canadian Cable System Alliance and Major League Baseball Collective of CanadaInc. McMillan LLP, Toronto, for Canadian Broadcasters Rights Agency. Gowling WLG (Canada) LLP, Toronto, for Copyright Collective of Canada. McCarthy Tetrault LLP, Toronto, for Canadian Retransmission Collective. Piasetzki Nenniger Kvas LLP, Toronto, for FWS Joint Sports Claimants Inc.

Hayes eLaw LLP, Toronto, Canadian Retransmission Right Association. Stikeman Elliott LLP, Ottawa, for Border Broadcasters Inc. Gowling WLG (Canada) LLP, Ottawa, for Society of Composers, Authors and Music Publishers of Canada.

Lewis Birnberg Hanet, LLP, Toronto, for Direct Response Television Collective Inc.

The following are the reasons for judgment rendered in English by [1] de Montigny J.A.: Six broadcasting distribution undertakings—Bell Canada, Cogeco Cable Inc., Rogers Communications Inc.,Shaw Communications Inc., Videotron Ltd., and Telus Communications Inc. (the BDUs), applied for judicial review (A-45-19) of adecision of the Copyright Board of Canada (the Board) dated December 18, 2018, for which reasons were issued on August 2, 2019[Tariff for the Retransmission of Distant Television Signals, 2014-2018, CB-CDA 2019-056, (hereinafter referredto as “Reasons”)].

The Board determined the quantum of royalty rates payable under the Tariff for the Retransmission of DistantTelevision Signals, 2014-2018 [Television Retransmission Tariff, 2014-2018,

(2019) C. Gaz. I, Supp. (August 3, 2019)] (the Tariff,2014–2018), thereby exercising the discretion conferred by

section 70 of the Copyright Act, R.S.C., 1985, c.

C-42 (the Act). [2] This decision is also challenged, in a separate application for judicial review (A-47-19), by eight collective societies—theCopyright Collective of Canada, Border Broadcasters Inc., the Canadian Broadcasters Rights Agency, the Canadian RetransmissionCollective, the Canadian Retransmission Right Association, Direct Response Television Collective Inc., FWS Joint Sports Claimants Inc.and the Society of Composers, Authors and Music Publishers of Canada (the Collectives). [3] Both parties accept the Board’s overall “proxy” approach to setting the royalty rates.

This approach involves determining theinitial value of a “proxy” set of analogous services and then applying adjustments to bring that value into line with the characteristics ofthe distant signals to which the royalty applies. They disagree, however, with the application of that methodology in light of theevidentiary record. [4] The BDUs submit that the royalty rates fixed by the Board exceed the amounts that would be fair and equitable in thecircumstances, contrary to

section 66.501 of the Act.

In particular, the BDUs take issue with the Board’s failure to make adjustments forsimultaneous substitution and for relative viewing of distant signals as compared to viewing of the proxy services, as well as with whatthey allege to be a reduction of the substitutability adjustment by half. [5] The Collectives, for their part, argue that the Board erred in: (1) failing to use the latest available version of the key pricing andsubscribership data based upon which the initial proxy price was calculated; (2) using a profit margin figure that was inapplicable to thespeciality services selected to form the proxy set; (3) imposing an arbitrary input and overhead reduction; and (4) misapplying its ownprecedent with respect to a purported market power deduction.

Each of these errors, in the Collectives’ view, reduced the royalty ratesthat should have been calculated pursuant to the Board’s proxy approach. [6] For the reasons set out below, I am of the view that this Court should dismiss the application for judicial review brought by theBDUs (A-45-19), while partially granting the Collectives’ application (A-47-19). The following are my reasons to so conclude. I.

Factual and Procedural Context [7] The BDUs are “retransmitters” within the meaning of subsection 31(1) of the Act; they distribute over-the-air distant televisionsignals in Canada as part of cable, satellite or Internet Protocol television (IPTV) subscription services they distribute to their customers. [8] The Collectives are authorized under the Act to represent the rights of copyright holders, including thousands of Canadian andforeign broadcasters and program producers, who are entitled to royalties for the retransmission of their works on over-the-air distanttelevision signals in Canada.

The Collectives’ copyright holders cannot exercise their rights directly, but must do so through the statutorycompulsory licensing regime established by the Act. [9] The Canadian retransmission regime allows BDUs to retransmit over-the-air broadcast signals without authorization of theprograms’ copyright owners.

Contrary to “local signals” (defined as a TV signal that covers an area within a 32 km radius of the station:see Definition of Local Signal and Distant Signal Regulations, SOR/89-254), the retransmission of “distant” signals requires payment ofroyalties to the various collective societies that have filed tariffs (Act, paragraph 31(2)(d)). The Board is vested with the authority toapprove the proposed tariffs, and to make any alterations to royalty rates that it deems appropriate (Act, subsection 70(1)).

In Referencere Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R. 489, theSupreme Court has aptly summarized this regime in the following way [at paragraph 58]: It bears underlining that, in the case of works carried in both local and distant signals, the copyright owner has no right to prohibit thesimultaneous retransmission of the work; recourse is limited to receiving through a collective society the prescribed royalty, but only forthe simultaneous retransmission of works carried in distant signals (ss. 76(1) and 76(3) of the Copyright Act).

On the one hand, thecopyright owner is granted a general right to retransmit the work. This retransmission right is part of the right, under s. (3)(1)(f), tocommunicate the work by telecommunication to the public. On the other hand, the owner’s general right to retransmit is restricted by acarve-out in s. 31(2) of the Copyright Act, which effectively grants to a specific class of retransmitters two retransmission rights. The firstright lets these users simultaneously retransmit without a royalty payment, works carried in a local signal.

The second right lets themsimultaneously retransmit works carried in distant signals, but only subject to the payment of royalties under a form of compulsorylicence regime (Copyright Act, s. 31(2)(

a) and (d)). Both user rights are, subject to s. 31(2), beyond the owner’s control. [Emphasis inoriginal.] [10] On March 28, 2013, the Collectives initiated the underlying proceeding by filing a proposed tariff for the retransmission ofdistant television signals for the years 2014–2018 (the Proposed Tariff). The proposed royalty rate was $1.06 per subscriber per monthfor 2014 for “large” retransmitters (those serving over 6,000 premises), rising to $1.38 in 2018. [11] The Board certified the first retransmission tariff in 1990, at $0.70 per subscriber per month (the 1990 Decision).

A secondhearing took place in 1993, following which the Board decided that there was no reason to abandon or modify the rate-setting principlesadopted in its 1990 Decision, and left the rates for the period 1992–1994 unchanged (the 1993 Decision). For the periods between 1993and 2014, the Board certified tariffs agreed upon by the relevant broadcasting distribution undertakings and collective societies. TheBDUs and the Collectives were unable to reach an agreement, however, for the period 2014–2018. On July 31, 2013, the BDUs, along

with two other undertakings and the Canadian Cable System Alliance, jointly filed timely objections to the Proposed Tariff. [ 12 ] This led the Board to conduct its first hearing on tariff rates since 1993. The hearing took place over 15 days divided into four hearing sessions in November and December 2015, and January, March and August 2016.

During the proceeding, the Board received evidence from ten experts and five industry witnesses. [ 13 ] Pending the Board’s final decision, the BDUs and the Collectives requested the certification of an interim tariff which would, as proposed, continue the terms of the recently certified Tariff for the Retransmission of Distant Radio and Television Signals, 2009–2013 [ Television Retransmission Tariff, 2009-2013 ,

(2013) Can. Gaz. I, Supp. (November 30, 2013)]. In an interim decision dated December 19, 2013, the Board acceded to the parties’ request. The Television Retransmission Tariff, 2009–2013 would remain applicable, unless modified, until the final tariff was certified for the years 2014–2018. [ 14 ] In the course of a tariff proceeding, the Board must set the amount of royalties that each retransmitter is required to pay to the collective societies (the quantum). It must also determine how the total amount of royalties is to be distributed amongst the collective societies (the allocation).

In the present case, at the request of the Collectives, the Board addressed the two issues separately. Indeed, while the allocation issue was left to be further determined, the oral hearing before the Board exclusively concerned the quantum issue. [ 15 ] As previously mentioned, the Collectives’ proposed rates for the years 2014–2018 initially ranged from $1.06 to $1.38.

After the exchange of interrogatories, the Collectives proposed in May 2015 a further increase of the retransmission royalty rate to $2.00 per subscriber per month for 2014, with an annual adjustment factor of 4.4 percent for the years 2015 through 2018 (leading to a monthly rate of $2.38 for 2018). The Collectives justified these higher rates by relying on the new information that was not previously available to them, showing the significant changes that occurred in the industry since the early 1990s.

For instance, they referred to the significant increase in the number of distant signals retransmitted by BDUs, the increased value of these distant signals, and the new feature of time shifting allowing distant signals to duplicate local signals from a different time zone. Needless to say, the BDUs disputed the significance of these changes. [ 16 ] In the course of the hearing, the BDUs and the Collectives presented the Board with extensive written and oral evidence, and counsel for both sides made detailed written and oral submissions.

The Collectives and the BDUs jointly commissioned a study to provide information on the average number of distant signals per residential subscriber from 2004 to 2014. As for the expert economist witnesses, their general approach was to use the market-based amounts paid by BDUs for permission to distribute various U.S. and Canadian specialty television services as a “proxy” for estimating the value of distant television signals.

On that basis, they opined on the royalty rates that BDUs should pay to the Collectives for the retransmission of those distant signals. [ 17 ] Following the conclusion of the hearing, the Collectives requested, without objection from the BDUs, that a decision with respect to the quantum be issued as soon as possible.

A decision on the quantum, the Collectives argued, might prove helpful in negotiating the remaining allocation issues, in addition to alleviating the burden of maintaining significant monetary reserves and/or holding back on the distribution of royalties. [ 18 ] On December 18, 2018, the Board released its decision, without reasons, in respect of the quantum of the Tariff, 2014–2018. The Board noted that the certification of the Tariff as approved pursuant to

section 73 of the Act would only follow the determination of the allocation.

The royalty rates were set as per the following table: Number of premises 2014 2015 2016-2018 Up to 1,500 0.49 0.57 0.60 1,501–2,000 0.54 0.62 0.65 2,001–2,500 0.60 0.68 0.71 2,501–3,000 0.66 0.74 0.77 3,001–3,500 0.71 0.79 0.82 3,501–4,000 0.77 0.85 0.88 4,001–4,500 0.83 0.91 0.94 4,501–5,000 0.89 0.97 1.00 5,001–5,500 0.94 1.02 1.05 5,501–6,000 1.00 1.08 1.11 6,000+ 1.06 1.14 1.17 [ 19 ] On January 31, 2019, the Board was informed that an agreement on the allocation among all of the Collectives had been reached. [ 20 ] The reasons of the Board, which I detail below, were released on August 2, 2019.

While the reasons cover both the quantum and the allocation of royalties, I only discuss the Board’s treatment of the former since the latter, as acknowledged by the parties, is not at issue. II. The decision below [ 21 ] After having reviewed the evidence submitted by the parties, the Board first considered the Act ’s legal framework with respect to the retransmission regime and dealt with a few legal issues that are of no bearing for the resolution of this application for judicial review.

It is the economic analysis that is at the heart of this litigation. [ 22 ] Three methodologies were presented to the Board to set tariffs for the retransmission of distant signals: the proxy approach, the trend-analysis approach, and the direct-market approach. Both the BDUs and the Collectives agree that the Board appropriately adopted a comparative services “proxy” methodology in order to value distant signals. [ 23 ] Different proxy approaches were proposed by the Collectives’ expert Professor Church and the BDUs’ expert Dr. Chipty. The

Board characterized its chosen proxy approach as an “amalgam” between the views of these experts (Reasons, at paragraph 418). Adjustments to their respective methodologies and assumptions were applied, the Board noted, in order to “yield[] the fair and equitable price” (Reasons, at paragraph 418). The Board did this in a series of steps. [ 24 ] First, the Board constructed a proxy for distant signals which, in its words, “adequately resembles the content of Canadian distant signals, and at the same time, ensures that the price of the proxy is the result of a competitive market” (Reasons, at paragraph 420).

The Board found that the royalties to retransmit programming on distant over-the-air signals should be based on the amounts paid by BDUs to Canadian and U.S. specialty television services to retransmit programming. To this end, the Board considered the 24 U.S. speciality services proposed by Professor Church, and the 47 Canadian category B speciality services proposed by Dr. Chipty.

From this set of speciality services, the Board first excluded vertically-integrated Canadian category B speciality services, holding that “the price of a proxy including these services may not resemble a competitive market price” (Reasons, at paragraph 421). The Board also excluded certain U.S. speciality services whose content greatly differed from distant signal content (Reasons, at paragraph 421). The Board finally selected a subset of the remaining services in order to obtain “a proxy that most closely resembles the genre distribution of distant signals” (Reasons, at paragraph 422).

The Board’s choice landed on 20 U.S. speciality services and three Canadian “category B” speciality services (Reasons, at paragraph 424). [ 25 ] Second, the Board calculated the total monthly payments made by four English-Canadian BDUs to the proxy services (Reasons, at paragraph 425). The four BDUs were chosen for the completeness of their payment information.

The amount of $21,187,297 was obtained by multiplying the per subscriber rate for each service by the number of the four BDUs’ subscribers who actually subscribed to the service. [ 26 ] Third, the Board divided the total monthly payments ($21,187,297) by the number of all of the four BDUs’ subscribers (8,078,000), rather than the number of the four BDUs’ subscribers who actually subscribed to the services (Reasons, at paragraph 426). This yielded an average proxy price of $2.62 per subscriber per month.

This approach constituted a “penetration adjustment”, as it effectively assumed that, if the proxy services were distributed to all BDUs’ subscribers (like distant signals), it would be without any increase in the total amounts paid to them by the BDUs. [ 27 ] Fourth, the Board applied a series of downward adjustments to the initial proxy price for it to reflect the price of distant signals (Reasons, at paragraph 427).

These adjustments can be summarized as follows: (a) “Cost of programming” adjustment: The Board held that the tariff should only apply to the programming portion of the proxy price, and proceeded to isolate the cost of programming (Reasons, at paragraph 428). It first applied a 25 percent adjustment factor to exclude the average profit margin of all of the proxy services, whether U.S. or Canadian based (Reasons, at paragraph 430). It further applied a 10 percent adjustment factor to exclude input and overhead costs (Reasons, at paragraph 431).

As a result, the proxy price went from $2.62 to $1.70. (b) “Market power” adjustment: The Board reasoned that certain proxy services, targeting very specific audiences in “niche” markets, exercise greater market power than more general channels (Reasons, at paragraphs 432–433). To account for this disparity, the Board applied the same 25 percent adjustment factor it had used in its 1990 Decision (Reasons, at paragraph 434).

Despite recognizing that two changes in the speciality services market had occurred since 1990 (an increase in number and a higher degree of program specialization), the Board assumed that the effects of these changes cancelled out (Reasons, at paragraph 435). This market power adjustment reduced the proxy price from $1.70 to $1.28. (c) “Program substitutability” adjustment: The Board held that distant signal programs tend to be substituted, by way of alternate viewing sources, more than specialty services programs (Reasons, at paragraph 437).

The value of distant signals, therefore, decreases more than does the value of speciality services (Reasons, at paragraph 438). In fixing an adjustment factor, the Board relied on the data detailing the use of personal video recorders (PVR) and “over-the-top” (OTT) services. In the Board’s view, an adjustment factor of 16.5 percent, modelled after the PVR and OTT services’ combined percentage of use, “would [have] overestimate[d] the true impact of alternative viewing opportunities” (Reasons, at paragraph 442).

The Board divided the figure by half, resulting in the application of an 8.25 percent adjustment factor. The proxy price of $1.28 was thereby reduced to $1.17 (Reasons, at paragraph 443). [ 28 ] The Board declined to make any other adjustments for which it was unable to obtain an estimate due to the lack of reliable evidence.

For example, the Board refused to make an adjustment to the price of the proxy based on relative viewing of distant signals to the speciality channels contained in the proxy, and did not consider whether similar genres on the speciality services and distant signals have similar values to subscribers.

The Board similarly refused to take into account the potential disparity of bargaining power between the BDUs and the Collectives, and also assumed that payments for the same service from different BDUs should roughly be the same (Reasons, at paragraphs 446–450). [ 29 ] As a result, the Board found that the royalty rate of $1.17 per subscriber per month, to be paid by large BDUs, could have been reasonable for the year 2014 (Reasons, at paragraph 451).

The same could have been said for the years 2015–2018, since inflation and possible declines in viewership would likely offset each other (Reasons, at paragraphs 452–453). [ 30 ] However, the Board held that it was “not prepared to approve a tariff in excess of the amounts initially proposed by the Collectives” (Reasons, at paragraph 451). In keeping with this approach, the Board capped the royalty rates for 2014 and 2015 at the levels originally proposed by the Collectives, respectively $1.06 and $1.14 (Reasons, at paragraphs 451 and 453).

For the years 2016– 2018, the originally proposed rates were not lower, but higher than $1.17, and thus the Board approved this figure (Reasons, at paragraph 453). III. Issues [ 31 ] The application for judicial review brought by the BDUs (A-45-19) raises three questions, which can be reformulated as follows:

(1) Did the Board err in failing to make an adjustment for simultaneous substitution?

(2) Did the Board err in failing to make an adjustment for relative viewing?

(3) Did the Board err in its determination of the appropriate program substitutability adjustment? [ 32 ] The Collectives’ application for judicial review (A-47-19), on the other hand, raises five questions which I have restated as follows:

(1) Did the Board use an incomplete and superseded version of the payment data in its calculations?

(2) Did the Board use the wrong profit margin figure in its calculations?

(3) Did the Board err in applying an adjustment for input and overhead costs without evidence?

(4) Did the Board err in applying a market power adjustment without evidence?

(5) Did the Board fail to properly apply the principles of procedural fairness in capping the 2014 and 2015 royalty rates? IV. Standard of review [ 33 ] There is no issue between the parties that the Board’s royalty-setting decisions involve questions of mixed fact and law that should be reviewed on the reasonableness standard on applications for judicial review. As this Court stated in Re:Sound v.

Canadian Association of Broadcasters , 2017 FCA 138 , 148 C.P.R. (4th) 91 ( Re:Sound ), such decisions are suffused with subjective judgment calls, policy considerations and regulatory experience, and courts are not in the best position to opine on policy issues involving public interest and economic aspects. The following statement is as apposite here as it was in that case [at paragraph 50]: A decision about the quantum of “equitable remuneration”, such as the one in this case, is not a simple one, arrived at by processing information objectively and logically against fixed, legal criteria.

Rather, it is a complex, multifaceted decision involving sensitive weighings of information, impressions and indications using criteria that may shift and be weighed differently from time to time depending upon changing and evolving circumstances. Accordingly, the Board’s decision on such an issue is [relatively unconstrained] …. [ 34 ] The amendments that have been made to the Act following that decision and the decision of the Supreme Court in Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653, 441 D.L.R. (4th) 1 ( Vavilov ) are of no impact on the applicable standard of review in the case at bar. Subsection 70(1) of the Act , much like paragraph 68(2) (

b) at issue in Re:Sound , still instructs the Board to approve the Proposed Tariff after making any alterations “that the Board considers appropriate”. As for Vavilov , it made no change to the existing law in this respect; if anything, it reinforced the presumption that reasonableness is the default standard of review and this case clearly does not fall into one of the few exceptions where correctness should apply: see Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada , 2020 FCA 100 , [2021] 1 F.C.R. 374 , at paragraphs 14–21 ; CMRRA-SODRAC Inc. v.

Apple Canada Inc. , 2020 FCA 101 ( CMRRA-SODRAC ), at paragraphs 4–7 . [ 35 ] For a decision to be considered reasonable, it must be “based on an internally coherent and rational chain of analysis” and “justified in relation to the facts and law that constrain the decision maker” ( Vavilov , at paragraph 85 ). Accordingly, a reviewing court must refrain from deciding the issue itself, or seek to determine what would have been the correct solution to the problem ( Vavilov , at paragraph 83 ).

This is particularly the case when the enabling statute confers on a decision maker a broad policy mandate with an unconstrained range of options to choose from. This is not to say that a reviewing court should not intervene when the challenged decision exemplifies a failure of rationality internal to the reasoning process, or where there is no line of analysis that could reasonably lead the tribunal from the evidence in the record to the conclusion it reached.

But this is not a conclusion to be arrived at lightly, as Vavilov instructs [at paragraph 100] : The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision.

It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable. [ 36 ] As for the allegation by the Collectives that the Board improperly applied procedural fairness in capping the royalty rates for 2014–2015, it must be reviewed on the correctness standard.

For a discussion on the application of the correctness standard to procedural fairness issues, in the post- Vavilov era, see: Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship) , 2020 FCA 196 , [2021] 1 F.C.R. 271 , at paragraph 35 . See also, in an analogous context of the private copying regime: Canadian Private Copying Collective v. Canadian Storage Media Alliance , 2004 FCA 424 , [2005] 2 F.C.R. 654 ( CPCC ), at paragraph 172 . V. Analysis A. A-45-19

(1) Did the Board err in failing to make an adjustment for simultaneous substitution? [ 37 ] Simultaneous substitution has been part of the Canadian broadcasting landscape for many years, and refers to the process whereby Canadian broadcasters can request that their signals be simultaneously substituted for a distant signal programming (usually an American channel) when they are broadcasting a similar program at the same time.

In these instances, viewers may be tuned to the distant signal channel, but they are in effect watching a simultaneously substituted program (including the advertising embedded in that programming) from a local signal. This practice, which is required or authorized pursuant to paragraph 7(

a) of the Broadcasting

Distribution Regulations , SOR/97-555 and the Simultaneous Programming Service Deletion and Substitution Regulations , SOR/2015- 240 , is meant to protect Canadian broadcasters who have bought programs from American producers, and to keep advertising dollars in the Canadian market. [ 38 ] The BDUs contend that the Board’s failure to make an adjustment for simultaneous substitution is unreasonable in two respects. First, the Board purportedly erred by departing from past decisions, in which adjustments for simultaneous substitution has been applied, without providing reasons.

In advancing this argument, the BDUs note that a 20 percent adjustment for simultaneous substitution was applied in the Board’s 1990 Decision; the same rate setting principle was applied in its 1993 Decision and was carried through subsequent agreements between the parties. In essence, the BDUs argue that the Board chose not to follow these precedents without providing any justification. [ 39 ] Second, the Board would have further erred by ignoring the “uncontroverted and unequivocal evidence” tendered by the parties on simultaneous substitution. On this point, the BDUs emphasize that the approaches of Dr.

Chipty (an expert for the BDUs) and Dr. Wall (an expert for the Collectives) both included, albeit in a different manner, an adjustment for simultaneous substitution. [ 40 ] The Collectives counter that neither side argued for the application of a “stand-alone” simultaneous substitution adjustment. The Collectives submit that the only proposed use of simultaneous substitution information, which came from Dr. Chipty, was narrowly construed. This information’s sole purpose would have been to refine Dr. Chipty’s set-top box data, and to determine the true amount of distant signal viewing that it comprised.

The approach of Dr. Wall, on the other hand, did not even call for the use of a separate simultaneous substitution adjustment. Under Dr. Wall’s approach, the proxy price first established in the 1990 Decision was understood as a “given” which ought to be updated, without any particular reference to simultaneous substitution. In brief, upon dismissing Dr.

Chipty’s set-top box data as biased and unrepresentative, the Board discredited the only viewing data set for which simultaneous substitution could have been relevant. [ 41 ] The Collectives add that no prior decisions of the Board stand for the application of a “stand-alone” simultaneous substitution adjustment in the present context, where the Board chose a different proxy methodology than the one employed in its 1990 Decision.

In any event, the Board is not bound by its prior decisions. [ 42 ] Having carefully considered the evidence that was before the Board and given appropriate consideration to the parties’ submissions, I am of the view that the BDUs’ argument calling for the application of a separate, stand-alone simultaneous substitution adjustment, is without merit. [ 43 ] First of all, it need not be repeated that the Board is not bound by its prior decisions and that stare decisis does not apply to administrative decision making: Vavilov , at paragraph 129 .

Of course, a decision maker that does depart from past practices or longstanding practices bears the burden of explaining why it is doing so, because those affected by a tribunal’s decision are entitled to expect that like cases will be treated alike: Vavilov , at paragraph 131 .

In the case at bar, however, there was no precedent requiring the application of a stand-alone simultaneous substitution adjustment whatever the context and irrespective of the methodology adopted by the Board. [ 44 ] In its 1990 Decision, the Board used as a starting point the wholesale price for only one speciality service (A&E), and considered that the value of a distant signal should be discounted by 20 percent because programs on distant signals are simultaneously substituted while those on A&E are not.

In its latest decision, the Board refused to build on that approach and to use the growth of the price of A&E and the growth of the number of distant signals per subscribers to update the last certified price, as suggested by Dr. Wall. The Board was of the view that A&E, which was a good proxy for distant signals in 1990, could no longer serve as a good proxy for a number of reasons and therefore decided to opt for the amalgam proxy methodology based on Dr.

Chipty and Professor Church’s approaches (Reasons, at paragraphs. 394–398). [ 45 ] In that new context, the Board was not required to explain why it did not apply an adjustment for simultaneous substitution; such an adjustment has never been designed as a stand-alone adjustment but was very much tied to the methodology adopted in 1990. The only obligation of the Board was to consider the evidence before it, to develop a methodology that would result in a fair and equitable tariff, and to explain its reasoning for setting the rates as it did: see CMRRA-SODRAC , at paragraph 17.

In coming to its conclusion, the Board was entitled to prefer one set of experts and their approaches over others, and that kind of assessment is entitled to considerable deference. [ 46 ] I also agree with the Collectives that the BDUs’ argument, calling for the application of a stand-alone simultaneous substitution adjustment, was never formally presented to the Board. Dr. Wall never suggested that simultaneous substitution ought to be used in every proxy model either in his report or during his examination or cross-examination.

His first two methods to estimate the value of distant signals do not rely on the use of the total or relative amount of viewing to distant signals, whereas his third method, which is based on an update of the 1990 Decision, does not formally involve the application of a revised simultaneous substitution adjustment. In any event, as previously mentioned, the Board rejected that approach. [ 47 ] As for Dr.

Chipty, who was the only one to make explicit use of simultaneous substitution, she narrowly construed it as an aid to the assessment of another type of adjustment—the relative viewing adjustment, to which I will turn next. Dr. Chipty proposed to adjust her initial proxy price by a relative viewing adjustment factor, calculated as the ratio of distant signal viewing relative to proxy services viewing. The viewing minutes on which Dr.

Chipty relied came from set-top box tuning data, which failed to distinguish between (1) viewing to a distant signal ; and (2) viewing to a simultaneously substituted local signal on a distant signal channel. To isolate the latter type of viewing, which ought to be removed from the calculation, Dr. Chipty proposed to use the simultaneous substitution information from a narrow sample of data, encompassing the popular services of three BDUs from the three largest cities over a two-week period. Upon reviewing Dr.

Chipty’s approach and the underlying data, the Board found the selected sample to be “problematic”, “unrepresentative of nation-wide viewership” and susceptible to “bias” (Reasons, at paragraph 360). I agree with the Collectives that, as a result, the Board discredited the only viewing data for which simultaneous substitution could have been relevant. [ 48 ] Finally, Professor Church’s approach contemplated the notion of simultaneous substitution, but applied no discount for it because

the viewing minutes to a simultaneously substituted local signal had already been excised from his proposed distant viewing data. No further adjustment, as the one applied in the 1990 Decision, was therefore required. [ 49 ] In this light, I am of the view that the Board did not ignore the evidence that was before it and provided reasons not to apply a simultaneous substitution adjustment. Such an adjustment is relevant only to the measurement of distant signal viewing.

To the extent that the Board’s amalgam proxy methodology does not in any way include or depend on the use of the total or relative amount of viewing to distant signals, there was no logical basis for the Board to apply a stand-alone adjustment to account for simultaneous substitution. [ 50 ] The BDUs’ request for a stand-alone simultaneous substitution adjustment is therefore raised for the first time in the context of this application for judicial review. For that reason, it ought not be entertained by this Court: Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at paragraphs 22–29 . This Court is deprived of the evidentiary record necessary to consider the issue and does not have the benefit of the Board’s views on that issue. Moreover, the Board cannot be faulted for not having addressed an issue that was not clearly raised by the BDUs before it.

(2) Did the Board err in failing to make an adjustment for relative viewing? [ 51 ] The BDUs argue that, having recognized the need to adjust for relative viewing, the Board erred by making no such adjustment in the face of appropriate evidence—namely the set-top box data used by Dr. Chipty—which was either ignored or dismissed without adequate explanation. With all due respect, this argument is entirely without merit. [ 52 ] Relative viewing accounts for the alleged difference in value between distant signal programming and speciality services. The Board did consider Dr.

Chipty’s proposed adjustment for relative viewing but chose not to apply it and never considered that it was required in the context of its methodology. As an amalgam of Dr. Chipty and Dr. Church’s approaches, the Board’s methodology involved the choice of adjustments that would yield a fair and equitable price. The fact that other adjustments may have been appropriate does not in any way elevate them to the level of being necessary. [ 53 ] Moreover, the Board gave an explanation as to why such an adjustment was not warranted. As previously mentioned, the Board found that the set-top data upon which Dr.

Chipty based her adjustment suffered from important drawbacks, being inconsistent with other broadcasting industry data sources and unrepresentative of nationwide viewership (Reasons, at paragraph 358). It is on that basis that the Board refused to venture into making an estimate: First, due to the lack of data, no adjustment on the price of the proxy can be done based on the relative viewing of distant signals to the specialty channels contained in the proxy. As explained by Dr.

Chipty, the price of the proxy should be adjusted by the ratio of viewing attributed to distant signals relative to the viewing attributed to the selected proxy. Since the parties did not provide reliable viewing data for each specialty service, it is not possible to make that adjustment. Reasons, at paragraph 447. [ 54 ] Contrary to the BDUs’ submission, therefore, I find that the Board’s reasons are reasonable, “based on an internally coherent and rational chain of analysis” and “justified in relation to the facts and law that constrain the decision maker”: Vavilov , at paragraph 85 .

The Board’s findings that no relative viewing adjustment was necessary, and that in any event there was no reliable data with which to make it, were open to it on the basis of the evidence on the record. Indeed, Dr. Chipty herself acknowledged on cross-examination before the Board that her proposed relative viewing adjustment should be set aside if the set-box data was to be found unreliable.

(3) Did the Board err in its determination of the appropriate program substitutability adjustment? [ 55 ] The BDUs contend that it was unreasonable to reduce the 16.5 percent program substitutability adjustment by half, as the Board did, without any evidence. Moreover, the Board ruled on the program substitutability adjustment without requiring additional evidence from the parties, although it had previously done so on two occasions. [ 56 ] In my opinion, the whole of the BDUs’ argument in that respect is flawed, in that it rests on an erroneous premise.

I agree with the Collectives that the Board never contemplated two different figures, i.e. 16.5 percent and 8.25 percent, as fairly accounting for the program substitutability impact of PVR and OTT services. It only ever considered a single figure, i.e. 8.25 percent, to be a “reasonable” estimate of the overall effect of such services. [ 57 ] It is clear from the Board’s reasons that the 16.5 percent figure, based on the combined usage data from PVR and OTT services, was always an entry point for the subsequent analysis—never a possible figure of the program substitutability adjustment.

While the Board agreed that it was reasonable to apply a downward adjustment on the price of the proxy to take into account PVR use (7.5 percent) and viewing of OTT services (9 percent), there is no doubt that the total of these two figures (16.5 percent) was only the first step of the Board’s reasoning; it could not be held to be the proper adjustment factor because it was clearly an overestimate.

Drawing on its specialized expertise, it provided the following reasons for holding that the substitution rate must necessarily be lower than the usage rate of PVR and OTT services: However, we believe that a 16.5 per cent adjustment would overestimate the true impact of alternative viewing opportunities for two reasons. First, local signals are only a proportion of all programming being recorded on the PVR, and a reduction should be done to the adjustment to take this into account. Second, OTT services are not perfect substitutes for distant signals.

Therefore, it would be incorrect to assume that all usage of such services substitutes for distant-signal viewing. Reasons, at paragraph 442. [ 58 ] That explanation certainly provides a rational basis for setting the program substitutability adjustment at a significantly lower rate than the total usage of PVR and OTT services. Whether the Board erred by reducing the 16.5 percent figure by half, without specific evidence to this effect, is a different question.

[ 59 ] While the Board could not rely on clear and detailed evidence as to the exact portion of usage of PVR and OTT services that did substitute for distant signal viewing, it nonetheless had some evidence which allowed for an estimate. [ 60 ] I agree that the Board’s reasons for setting the adjustment at 8.25 percent could have been more thorough, but it was the BDUs’ burden to provide the Board with sufficient evidence in the first place. In any event, these are not circumstances where, as in Canadian Association of Broadcasters v.

Society of Composers, Authors and Music Publishers of Canada , 2006 FCA 337 , 354 N.R. 310, the Board had merely referred to the evidence as a whole for justifying a particular quantification, thereby implying that “[w]e are the experts. This is the figure: trust us” (at paragraph 17). [ 61 ] In the case at bar, the Board did explain how it came to an estimate by holding that such “figure better reflects the fact that the substitution rate is lower than the usage rate of these services” (Reasons, at paragraph 443).

It assessed and evaluated the evidence before it, and we are not in those exceptional circumstances where the reviewing court should reweigh and reassess the evidence. Moreover, the Board’s decision is well within the range of reasonable outcomes available to it based on the evidentiary record. B. A-47-19

(1) Did the Board use an incomplete and superseded version of the payment data in its calculations? [ 62 ] The Collectives contend that the Board, upon calculating the Canadian proxy services payment, relied on an incomplete and superseded version of the pricing data. The payment information originally supplied by the BDUs during the discovery phase was incomplete, and it is only as a result of the undertakings made at the hearing that the missing payment data was entered into evidence.

This new information added $274,265.95 per month to the total BDUs’ payments for the three Canadian services included in the Board’s proxy. Yet, the Board failed to take into account this updated information from its initial proxy calculation.

Such omission, the Collectives argue, is material because it creates roughly a $4 million shortfall, before the applicable downward adjustments, in annual retransmission royalty payments. [ 63 ] At the hearing before this Court, the BDUs conceded that the Board made a mistake in not taking the most up-to-date data, but that it is for the Board to correct that error, not for this Court.

The BDUs also emphasize that the Board’s downward adjustments have a far greater impact than using slightly different payment data to establish the proxy rate. [ 64 ] In my view, there is no doubt that the Board erred and relied on superseded information in calculating the total BDU payments to the proxy services. The Board used the data in Dr. Chipty’s pre-hearing written report, not as a result of conscious choice, but involuntarily and most likely as an oversight.

While the difference in the annual retransmission royalty payments may not represent a substantial amount, relatively speaking, the result arrived at by the Board is still unreasonable as it is not based on the evidence that was before it. [ 65 ] The real issue for this Court relates to the appropriate remedy. Should the Court remit the matter to the Board for redetermination, or should it substitute its own decision for that of the Board? Since the Collectives allege that the Board made other reviewable errors in applying its proxy approach, I shall return to that question later on in these reasons.

(2) Did the Board use the wrong profit margin figure in its calculations? [ 66 ] The retransmission scheme is designed to compensate the owners of copyright in works (television programs, films, music) that are carried on distant signals, and not the broadcasters. Since the proxy of specialty services used by the Board includes all payments made by the BDUs, the Board has to try to identify and eliminate the portion of the total payment attributable to the value of the signal in order to arrive at a just and reasonable royalty rate for the works in distant signals.

The profit margin adjustment reflects this requirement. [ 67 ] The Collectives contend that the Board’s 25 percent downward adjustment to exclude the profit margin of Canadian proxy services is based on its flawed understanding of Dr. Chipty’s opinion. In fact, Dr. Chipty had advanced that the profit margin for the specific type of Canadian services encompassed by the proxy, i.e. non-vertically integrated services, was about 10 percent. The profit margin for all types of Canadian services, whether vertically integrated or non-vertically integrated, was deemed to be 25 percent.

In the Collectives’ words, the Board could not apply the 25 percent profit margin figure associated with and dominated by the very services, i.e. vertically integrated services, that it had previously excluded from the proxy. Therefore, the 10 percent profit margin figure was the sole figure that the Board, given its stated reliance on Dr. Chipty’s views, could select. [ 68 ] The Board further compounded its error, the Collectives say, when attributing a 25 percent profit margin to the U.S. proxy services. In her expert report, Dr.

Chipty combined the profit margins of the U.S. and Canadian proxy services (all of which are non- vertically integrated), thus calling for an undifferentiated profit margin adjustment of 10 percent. [ 69 ] Once again, I agree with the Collectives and their account of the views expressed by Dr. Chipty on profit margins. Indeed, the Board itself accurately summarized Dr. Chipty’s findings earlier on in its reasons: …. To isolate the profit from total payments, Dr.

Chipty uses the CRTC’s report, where a 25 per cent average profit is calculated for all Canadian Category B specialty services and a 10 per cent average profit is calculated for non-vertically integrated Canadian Category B specialty services. Since there is no profit margin available for the U.S. specialty services, Dr. Chipty assumes at least 10 per cent profit for the U.S. specialty services. This is under the assumption that since the U.S. specialty services are not vertically integrated with BDUs, they have a lower profit, like the non-vertically integrated Category B specialty services.

Reasons, at paragraph 313 (footnote omitted). [ 70 ] It seems clear from that excerpt that the Board properly understood Dr. Chipty’s report as distinguishing between vertically integrated and non-vertically integrated Canadian services. Under Dr. Chipty’s approach, and as recounted by the Board, the former and the latter combined attract a 25 percent profit margin while the latter, due to their corporate structure, only produce a 10 percent profit

margin. Dr. Chipty further assumes that the non-vertically integrated U.S. services generate a minimum 10 percent profit margin because, similar to non-vertically integrated Canadian services, they have a lower profit than vertically integrated services. [ 71 ] While it had adequately summarized the available expert evidence, the Board went on to misrepresent Dr. Chipty’s position at a latter stage of its reasons.

Indeed, upon purportedly setting an adjustment for the profit margin of non-vertically integrated Canadian proxy services, the Board relied on the 25 percent figure associated to all types of Canadian services. In doing so, the Board not only overlooked the distinction that Dr. Chipty herself had carefully drafted, but also indirectly reintroduced the previously excluded vertically integrated services by using their profit margin data.

This also led the Board into further error when applying the same 25 percent figure to the U.S. specialty services, on the basis that “there is no reason to believe that the profit margin of the U.S. specialty services is lower than that of the Canadian category B specialty services” (Reasons, at paragraph 430). This assessment is based on a false premise and overlooks Dr.

Chipty’s evidence that U.S. specialty services included in the proxy have a lower profit margin because they are not vertically integrated with the BDUs. [ 72 ] I agree with the BDUs that the Board cannot be expected to follow blindly every expert’s opinion. However, in this case, the Board assigned a 25 percent profit margin to Canadian and U.S. proxy services on its mistaken reading of Dr. Chipty’s opinion. Under Dr. Chipty’s approach, the only correct profit margin adjustment for Canadian and U.S. proxy services would have been set at 10 percent.

This part of the Board’s reasons is therefore unreasonable, as it “fail[s] to reveal a rational chain of analysis” and “fundamentally misapprehend[s] or fail[s] to account for the evidence before [the Board]”: Vavilov , at paragraphs 103 and 126 .

(3) Did the Board err in applying an adjustment for input and overhead costs without evidence? [ 73 ] The Collectives argue that there was no evidence supporting the Board’s decision to apply a further 10 percent downward adjustment to account for input and overhead costs. Dr. Chipty, on whom the Board relied in deciding to exclude non-programming costs, made no adjustment for input and overhead costs because she lacked the information to make such an adjustment.

The Board acknowledged that there was no evidence as to the amount of any input or overhead cost reduction, but nevertheless decided to apply one anyway on the assumption that these costs are real and must be excluded to isolate the costs of the retransmitted works: Dr. Chipty does not make any adjustment for input and overhead costs due to the lack of information. While we do not have figures for input and overhead costs, we know that these costs exist, and even a conservative estimate would place these at 10 per cent.

Therefore, we find that it is reasonable to apply a 10 per cent deduction on the price of the proxy to exclude input and overhead costs. This adjustment reduces the price to $1.70. Reasons, at paragraph 431 (footnote omitted). [ 74 ] In my view, this aspect of the Board’s reasons is reasonable and is entirely justified, intelligible and transparent. It is beyond dispute that an input and overhead adjustment is necessary to distinguish between, on the one hand, the value of the works being retransmitted and, on the other hand, the profits or costs of the broadcasters.

The object of retransmission rights is to reward the owners of programs for the former, not for the latter. Once we accept the necessity of such an adjustment, it is up to the Board, as an expert decision maker, to come up with its best estimate in the absence of firm evidence. In doing so, the Board was obviously not bound by the opinion of one of the experts before it. Nor is it an instance where the tribunal misapprehended the evidence that was put to it by the parties.

Quite to the contrary, the Board acknowledged that it had no figures to rely upon and made a conservative assessment based on its own expertise. Far from being unreasonable, this course of action was the only available one in the circumstances.

(4) Did the Board err in applying a “market power” adjustment without evidence? [ 75 ] The Collectives also challenge the Board’s market power adjustment on the same basis that there was no evidence for it. The Board applied a 25 percent downward adjustment in the initial proxy price in recognition of the fact that some specialty services included in the proxy target very specific audiences in “niche” markets, which enables them to exercise market power and to ask higher prices for their services.

According to the Collectives, the 25 percent figure is not supported by any evidence and rests only on a similar adjustment made by the Board in its 1990 Decision.

Not only did the Board offer no justification for using the same reduction that had been applied in a different set of circumstances 29 years earlier, but it allegedly misread and misapplied that precedent because the price adjustment in that earlier decision was not related to market power but to simultaneous substitution and penetration adjustment. [ 76 ] I have not been persuaded that the Board’s reasons with respect to the so-called “market power” are unreasonable.

Once again, the dispute between the parties does not seem to relate to the justification for the adjustment, but rather on the alleged absence of evidence to support the quantification of that adjustment. At the hearing, counsel for the Collectives acknowledged that specialty services have more market power because of their “niche” clientele, but took issue with the 25 percent reduction. [ 77 ] First, it is worth pointing out that the Board does explain why it decided to apply the same reduction that had been applied in 1990.

It identified two developments (many more specialty services, and their more specialized nature) that might have affected the 25 percent adjustment, but chose to assume that they both cancelled out in the absence of any evidence to the contrary. This is a finding that was open to the Board, as an expert adjudicative and regulatory tribunal.

The reasoning of the Board in that respect is “rational and logical”, and does not exhibit any “clear logical fallacies”: Vavilov , at paragraphs 102 and 104 . [ 78 ] Second, I agree with the BDUs that the fixation of the Collectives on a very narrow meaning of “market power” is misplaced. Relying on a paragraph of the 1990 Decision that referred to “market power” as being associated with the ability of a specialty service to exclude viewers who are not willing to pay, the Collectives fault the Board for using the same concept in relation to the power arising from niche programming.

Yet in both cases, what is at stake is the pricing power originating from the unavailability of a service other than from a single source. I must therefore disagree with the Collectives when they argue that the Board is “plucking an entirely irrelevant figure from another hearing to quantify and justify its market power adjustment” (Collectives’ memorandum of fact and law, at paragraph 61).

On the contrary, the market power concept used in both decisions refers to a similar, if not the same reality. [ 79 ] As for the other factors to which the Board referred in the conclusion of its 1990 Decision (simultaneous substitution and penetration adjustment), they may not relate strictly speaking to market power, but they certainly impact the value of programming

offered by specialty services. When the Board refers to the market power of the specialty services, it is clear that it refers to a larger analysis of the various factors that may explain why the price for these services may be higher. [ 80 ] For all of the above reasons, I must therefore dismiss that argument. [ 81 ] This brings me to a consideration of the remedies. The Collectives have urged us to substitute our own decision to that of the Board, and to make the adjustments that should have been made.

In their view, the Board’s calculation errors are easy to fix and can be remedied by plucking the right numbers into the methodology adopted by the Board. The Collectives also argue that time is of the essence, and that the parties are already well into the next five-year tariff period. [ 82 ] Vavilov teaches us that it “will most often be appropriate to remit the matter to the decision maker to have it reconsider the decision” (at paragraph 141). I do not think that this case is one of the scenarios where following this general rule would create excessive delays not contemplated by Parliament.

I appreciate that the two errors identified by this Court in assessing the adjustment to the proxy price, namely the use of an incomplete and superseded version of the payment data as well as the use of the wrong profit margin figure, are quite straightforward and do not involve a reconsideration of the overall approach implemented by the Board.

At the same time, the amounts at stake are considerable, and as much as the Collectives filed with this Court (as an appendix to their factum) a calculation of the effect of correcting each error, we do not have the views of the BDUs on that issue. [ 83 ] Moreover, Parliament has created the Board, an expert administrative tribunal, and entrusted it to determine the fair and equitable royalties to be paid for the retransmission of distant signals. Ultimately, it is for the Board to approve a proposed tariff and publish it in the Canada Gazette , pursuant to subsection 73(1), now

section 70 . [ 84 ] I understand that the retransmission royalty rates for the period 2014–2018 were only released in December 2018, and that the Tariff was only approved and published on August 3, 2019. We are now, in effect, reconsidering royalty rates that should have applied between three and seven years ago. This long delay is obviously of concern, and is the source of uncertainty for all the players involved. I trust that the Board will be able to amend its Tariff in conformity with these reasons in an expeditious way.

In the meantime, the parties will be able to govern themselves and make whatever business decisions they may have to make in light of the adjustments that will be required as a result of this decision.

(5) Did the Board fail to properly apply the principles of procedural fairness in capping the 2014 and 2015 royalty rates? [ 85 ] Finally, the Collectives argue that the Board failed to properly apply the principles of procedural fairness and made three errors in imposing a cap on the 2014 and 2015 royalty rates. First, the Board compared the revised rates to those contained in the initial Proposed Tariff, instead of comparing the rates it intended to certify on the basis of the economic evidence that was before it with the original tariff proposals.

Had the Board focussed on the right difference, it would not have found such difference to be “significant”. The difference for 2014 and 2015 would have been respectively $0.11 and $0.03, as opposed to $0.94 and $0.95. [ 86 ] Second, it is contended that the Board exaggerated the importance of the statutory notice period. Following the decision of this Court in CPCC , the Board accepted that it is not bound by the non ultra petita principle and can set a tariff that is higher than the rate originally proposed by the parties.

Yet the Board is said to have failed to evaluate the competing interests of the Collectives by putting too much emphasis on the benefit they would gain if allowed to rely on the revised tariff, without taking into account that they were required to file their proposed tariffs long before obtaining the BDUs’ confidential business information. [ 87 ] Third, the Collectives submit that there was no material evidence of prejudice before the Board, despite the fact that both the Canadian Cable Systems Alliance (CCSA) and its members had notice that they could object to a proposed tariff and had an opportunity to present their case.

In the absence of clear evidence of harm, the Collectives claim that the Board should have refrained from making assumptions as to the capacity of the BDUs to pay “such a significant potential retroactive increase in royalties over such an extended period of time” (Reasons, at paragraph 238). [ 88 ] After having carefully considered these arguments, I have concluded that they ought to be rejected.

The Board was correct to frame the issue as one of procedural fairness, and rightly considered that these proceedings do not attract the application of the non ultra petita principle (which does not apply to the Board in any event, following the decision of this Court in CPCC ). The Board also rightly recognized that it was authorized, under

section 73 of the Act (now

section 70 ), to modify or vary a proposed tariff and impose terms and conditions as it considers appropriate, with the following caveat : …. In doing so, and in determining whether it should approve rates other than those originally proposed and published in the Canada Gazette , however, the Board must attempt to ensure that doing so would not unfairly prejudice interested or affected persons or give rise to some other procedural or substantive unfairness or violation of the principles of natural justice.

Reasons, at paragraph 234. [ 89 ] The Board was also mindful of the fact that there might be an imbalance in the available information between the parties, but correctly pointed out that this is not the only consideration in play. It then identified three concerns that needed to be addressed in order to ensure that the amendment did not undermine the integrity of the tariff-setting process set out in the Act . [ 90 ] The first, which relates to the significant increase in the proposed rates, did not in and of itself lead the Board not to approve the revised tariff for the period preceding its filing in May 2015.

Contrary to the Collectives’ submission, it was not the “main” reason the Board gave for imposing its cap on the 2014 and 2015 royalty rates. It merely emphasized the need to carefully scrutinize the proposed increases out of “fairness concerns”, to paraphrase the Board at paragraph 228 of its reasons. [ 91 ] It is no doubt true that the Board used, as its comparative base for the original tariff proposals, the revised tariff proposals instead of the rates actually certified by the Board. I do not think, however, that the Board is to blame in that respect.

After all, as it noted in its reasons, “[t]he entire hearing, and the expert and other evidence presented, revolved around the revised request” (Reasons, at paragraph 233). The issue that was to be decided was whether the Board should consider the revised claim, and if so to what extent, and not

whether the Board’s own assessment of the tariff should apply for the entire period including the two years preceding the filing of the revised tariff proposals. I also fail to understand how the decision of the Board can be considered to be contrary to CPCC , as suggested by the Collectives, as no revised tariff proposals were filed in that case. Finally, I am also unable to agree with the Collectives that this finding affected other portions of the Board’s fairness analysis, as I shall try to demonstrate in the following paragraphs of these reasons. [ 92 ] The main reason for not approving a tariff in excess of the amounts originally claimed by the Collectives for the period preceding

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