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TRCM / Brief / brief_writersguildofcanada_bundle_e

Senate Committees

Submission to the Senate Standing Committee on Transport and Communications on Bill C-11 The Online Streaming Act October 27, 2022

1 I. C-11 is crucial legislation that must be passed promptly Bill C-11

An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts, also called the Online Streaming Act, is crucial legislation whose time has long since come. For nearly a century, Canadian public policy has recognized the essential role of supporting Canadian media as a core component of our national and cultural sovereignty. From at least the Aird Commission (1929)1 onwards, public regulation and support for Canadian broadcasting has been considered crucial to Canadian identity and national consciousness.

In the decades since, the economic benefits have also become apparent, with the Canadian domestic television production sector generating over $3 billion in GDP for the Canadian economy in 2020-2021, along with nearly $2.5 billion in labour income.2 We can compare this to the domestic Canadian theatrical feature sector which, absent any meaningful regulation, languishes at roughly one-tenth the size of television,3 Canada having long ago ceded its cinemas to domination by American films, such that Hollywood now literally treats Canada as its own domestic theatrical market.4 Canadian domestic broadcasting, by comparison, exists, despite challenges, in a meaningful way, thanks in immense part to the various iterations of the Broadcasting Act (the Act) and resulting regulation, which has ensured that Canadian broadcasters contribute to the creation and presentation of Canadian programming, for the benefit of Canadians.

As is now well-understood, the digital revolution has profoundly challenged 20th Century models of broadcasting regulation, and we are now at a tipping point, if not already beyond it. The emergence of the Internet generally, and large foreign streaming services specifically, has created new and immense competitive pressure on traditional Canadian broadcasters.

The result has been, among other things, a precipitous, 75% decline in private, English-language broadcaster licence fees that contribute to financing Canadian programming, from $456 million and 17% of financing in 2013-2014, 5 to just $116 million and 7% in 2020-2021.6 Meanwhile, the cost of producing world-class content remains high.7 At the same time, our own internal data shows that the hours of scripted production under the WGC’s jurisdiction commissioned by the major private English-language broadcasters have fallen even more dramatically.

The number of hours of new programming commissioned under the WGC's jurisdiction by the Bell, Corus, and Rogers broadcast groups dropped by over 68% from 2014 to 2021. None of this is news any longer. Numerous consultations over the past five years alone have repeatedly demonstrated the need to act.

The Creative Canada Policy Framework (2017),8 the Canadian Radio- television and Telecommunications Commission’s (CRTC) report, “Harnessing Change: The Future of Programming Distribution in Canada” (2018),9 and the final report of the Broadcasting and 1 Royal Commission on Radio Broadcasting, 1929. 2 Profile 2021, Canadian Media Producers Association (CMPA) in collaboration with the Department of Canadian Heritage, Telefilm Canada, the Association québécoise de la production médiatique (AQPM) and Nordicity, https://cmpa.ca/profile/, Exhibit 1-7. 3 Profile 2021, Exhibit 2-1. 4 E.g.

Vlessing, Etan. “Canada Box Office: Revenue Rises to $699M in 2015.” The Hollywood Reporter, 8 Jan 2016. http://www.hollywoodreporter.com/news/canada-box-office-revenue-rises-853273 5 Profile 2018, Exhibit 4-19. 6 Profile 2021, Exhibit 3-17. 7 Profile 2021, Exhibit 3-9. 8 https://www.canada.ca/en/canadian-heritage/campaigns/creative-canada/framework.html 9 https://crtc.gc.ca/eng/publications/s15/

2 Telecommunications Legislative Review Panel, “Canada's communications future: Time to act” (2020),10 have all recognized both the impacts of the digital shift, and the need for a government response, including updating the Broadcasting Act to the new, digital reality. The latter emphasized, in its very title, that the time to act is now. The urgency is all the more pressing because passage of Bill C-11 is not the end of the process, but rather just the beginning.

The CRTC implements the Broadcasting Policy for Canada under the Broadcasting Act, and following passage of the bill the Commission must still have a public proceeding and hold hearings to determine specific regulatory requirements. A Preliminary Draft Policy Direction to the CRTC of August 2020, in relation to C-11’s predecessor bill, C-10, proposed a time frame of 9 months to do so. We believe that was itself ambitious, but whatever is ultimately done, the actual realization of the objectives of Bill C-11 will still be many months— and maybe years— away. For an industry on the brink, the clock is ticking. II.

The central role of Canadian creators— and Canadian screenwriters Art is made by artists. Canadian art is made by Canadian artists. Creative work does not exist unless and until it is created by creators. In other creative forms, like painting or novel writing, the artist is a single individual creating a single work, and their status as author and creator of their work is broadly understood.

We would not say that a painting is Canadian simply because it was commissioned by a Canadian art collector, or exhibited in a Canadian-owned gallery, if the painter themselves was not Canadian; we would not say that a book is Canadian simply because it was published by a Canadian publisher or sold in a Canadian-owned bookstore, if the author was not Canadian. In every creative medium there are a number of important, non-creative roles that help get a work from an idea to a final product in the hands (or on the screens, or onto the digital devices) of consumers.

Yet in no creative medium is the artist somehow secondary with those other roles when it comes to the creative nature and identity of the work. The Mona Lisa was commissioned by a wealthy Florentine silk merchant, but that does not make it any less Leonardo da Vinci’s painting, nor does its current ownership by the Louvre in France transform it from a work of the Italian Renaissance into a French painting.

Hamlet is the work of William Shakespeare, and therefore of English drama, no matter in what country it is staged, no matter who produces, directs, or acts in a performance of it, and even though it is about a prince of Denmark. Professional audiovisual content, television programming included, is a collaborative form, requiring the work of many people to bring it to fruition. This does not mean, however, that television programming lacks creators or a creative vision. On the contrary, of the hundreds of people who may be involved in the production of an hour-long drama series, many do not inhabit creative roles.

Television shows are nevertheless creative works that bear the stamp of their creators— of an authorial voice or voices and individual artistry. In serial dramatic television in particular, that voice is the screenwriter: 10 https://www.ic.gc.ca/eic/site/110.nsf/eng/00012.html

3 Television is a writer's medium. Always has been. …Great dramatic television is serialized; the stories are ongoing, often from season to season, weaving a vast, multiple-hour tale. It is the novel to film's short story. And in television, the actual telling of the story is everything — the narrative flow of that story and the character development within that story solidify greatness, if present.11 The screenwriter begins with a blank page.

There is no greater act of creation than to start with an empty piece of paper, or computer screen, and to fill it with stories, characters, ideas, emotions, and details— to fill it with life— all within the framework of the television form. This is the screenwriter’s art and the screenwriter’s craft. This fundamental creative act is necessary before anybody else in the production process can do their job. Without the script, there is nothing to produce, nothing to direct, nothing to perform.

Legendary filmmaker Alfred Hitchcock said, “To make a great film you need three things – the script, the script, and the script.” 12 Even when a television show is adapted from another form, like a novel, the screenwriter’s job is foundational, and the screenwriter remains the creator of their show, just as much as the novelist is the creator of their novel or the playwright of their play.13 At the centre of the writing process is the showrunner.

A showrunner is a writer-producer who is the chief custodian of the creative vision of a television series and whose primary responsibility is to communicate the creative vision of that series through control of both the writing process and the production process— often from the pilot episode through to the finale. The showrunner concept emerged in the U.S. in the 1980s, where it has become closely associated with the current “Golden Age” of television, and it has since expanded internationally, including to Canada.

Showrunners are writer- producers who control and guide the creative vision of the show. 14 Showrunners are fundamentally both screenwriters and producers, and they creatively control dramatic television production. There are now a significant number of talented, experienced Canadian showrunners, and they are the creative forces behind their shows. Ins Choi took his experiences growing up in a Korean-Canadian family and turned them first into a play, and then in a television show, as co-creator of the hit CBC sitcom, Kim’s Convenience.

Jared Keeso and Jacob Tierney bring a uniquely Canadian sensibility to their show Letterkenny, streaming on Crave. Joseph Kay is the creator/showrunner of Transplant, the highest-rated Canadian drama in 2020, and a critical success on NBC. Floyd Kane created Diggstown, about a Black lawyer navigating law and life in Nova Scotia. Black screenwriters Marsha Greene and Annmarie Morais developed The Porter, and put together the first all-Black Canadian writer’s room. Indigenous 11 Goodman, Tim, “Critic's Notebook: The Rise of the TV Auteur?

No Thanks .” The Hollywood Reporter, October 10, 2018, https://www.hollywoodreporter.com/bastard-machine/critics-notebook-rise-tv-auteur-no-thanks-1150887. 12 “Alfred Hitchcock: Quotes.” IMDB, http://m.imdb.com/name/nm0000033/quotes. 13 In professional film and television production, books, plays and other media are always adapted into a script by a screenwriter. No producer or director hands out copies of a novel to key cast and crew on the set to shoot from. Adaptation is as much a creative act as “original” writing, since audiovisual content differs fundamentally from other media.

What works creatively in a novel, for example, may not work on the screen: emotions that were evoked in prose must now be evoked visually or with dialogue; an “interior monologue” on paper must be externalized in action and performance; or, a book that takes 20 hours to read must be condensed to ~10 1-hour episodes. This is why, for example, major awards, like Oscars and Emmys, are given to adapted scripts/screenplays, and the same novel can be adapted brilliantly (see Stanley Kubrick’s famous 1980 film, The Shining) or poorly (see ABC’s forgotten 1997 miniseries of the same name). 14 E.g.

Collins, Andrew. “Showrunners – TV’s lords and creators.” The Guardian, September 16, 2016 https://www.theguardian.com/media/2013/sep/16/showrunners-tv-writers-creative-power.

4 showrunner Ron E. Scott has been responsible for Blackstone and Tribal, both of which deal with issues affecting Indigenous communities in Canada, such as pipelines, the right to clean water, social services, and missing and murdered Indigenous women. And Dan Levy’s Schitt’s Creek has garnered numerous accolades in Canada and the United States, thanks to his unique creative vision. These creators— these screenwriters—m ust be a central component of the Broadcasting Act.

It is far from sufficient to claim that content in the broadcasting system is Canadian simply because it was shot within our borders, was (partially) financed with Canadian money, its copyright is owned by a Canadian production company, or its (Canadian) distribution or broadcast rights are held by a Canadian distribution company or broadcaster. Canadian creative work is fundamentally made by Canadian creators. Television is fundamentally made by Canadian screenwriters. If it’s not Canadian-written, it’s not Canadian content.

We continue to battle a massive drain of Canadian creative talent out of the country, as opportunities for a creative livelihood abound in Hollywood while they are stagnating here. From the WGC’s perspective, this has reached a crisis level. Currently, the WGC’s largest membership region is Toronto, but its second-largest region, running not far behind, is Los Angeles. That is worth emphasizing. The WGC is a guild of Canadian screenwriters, yet more of our members are working out of an American city than out of Montreal, Vancouver, or anywhere else in this country other than Toronto.

This represents a generational loss of Canadian screenwriters, most of whom we are likely never to get back. We must ensure that Canadian creative resources— and a Canadian authorial voice— is and remains central to the meaning of Canadian content/programming, and is prominent in the Broadcasting Act.

The final report of the Broadcasting and Telecommunications Legislative Review Panel, “Canada's communications future: Time to act”, stated: There is no question that productions in which all key creative positions are occupied by Canadians — which have a Canadian writer, a Canadian director, and Canadian lead actors — are more likely to reflect a Canadian perspective. 15 The 2017 Creative Canada Policy Framework, in making “investing in Canadian creators” one of its three pillars, was explicit: Creators, broadly defined, must be at the centre of our new approach for the creative industries.

They are the heart of the ideas and work that fuel our creative industries. 16 The Broadcasting Act must reflect this foundational concept. Failure to do so would be the death knell for both Canadian screenwriters and the uniquely Canadian content they create. III. Two essential amendments:

Section 3(1)(

f) and the Status of the Artist Act

Section 3(1)(

f) Given our comments above, while the WGC supports Bill C-11, we do have concerns with the proposed legislation. Most crucially, we are deeply concerned about the amendment in the bill to

section 3(1)(

f) of the Broadcasting Act as follows: 15 Page 151. 16 Creative Canada Policy Framework, “The path forward: taking action along three pillars ”.

5 (

f) each Canadian broadcasting undertaking shall employ and make maximum use, and in no case less than predominant use, of Canadian creative and other human resources in the creation, production and presentation of programming, unless the nature of the service provided by the undertaking, such as specialized content or format or the use of languages other than French and English, renders that use impracticable, in which case the undertaking shall make the greatest practicable use of those resources; (f.1) each foreign online undertaking shall make the greatest practicable use of Canadian creative and other human resources, and shall contribute in an equitable manner to strongly support the creation, production and presentation of Canadian programming, taking into account the linguistic duality of the market they serve; This two-tiered approach is deeply problematic for Canadian screenwriters and other Canadian creators.

By setting two different standards, C-11 would allow foreign online undertakings to engage fewer Canadian creators (such as screenwriters) in the creation and presentation of Canadian programming, and open the door to content that is creatively driven from the United States or elsewhere to count towards meeting the policy objectives of the Act.

Given that we face a possible future in which foreign online undertakings could dominate the Canadian market— especially when it comes to the creation and presentation of larger-budget programming like drama, comedy, animation, children’s programming, and documentaries— this could make the lower bar of (f.1) the de facto standard for the Canadian broadcasting system. At the same time, we understand the rationale for amending

section 3(1)(

f) of the existing Act. The 1991 Act contemplates a “closed system”, in which all broadcasting undertakings operating in Canada are Canadian owned-and-controlled, and all programming created and presented by those undertakings is presumably Canadian programming. Bill C-11 “opens up” the system, contemplating one in which foreign online undertakings operate under a Canadian regulatory framework that seeks to treat both traditional and online services in a comparable way.

In such a system, foreign online undertakings like Netflix may not be realistically expected to make maximum-but-not-less-than-predominant use of Canadian creative and other resources in the creation and presentation of all its programming offered in Canada. Recognizing the need to amend the section, but not in a way that diminishes the role of Canadian creators, the WGC has a proposed solution. The following proposal is presented in blackline format, showing changes from the current, 1991 Broadcasting Act. (

f) each broadcasting undertaking shall make maximum use, and in no case less than predominant use, of Canadian creative and other resources in the creation, production and presentation of Canadian programming, unless the nature of the service provided by the undertaking, such as specialized content or format or the use of languages other than French and English, renders that use impracticable, in which case the undertak ing shall make the greatest practicable use of those resources and shall contribute significantly to the creation, production and presentation of Canadian programming to the greatest extent that is appropriate for the nature of the services provided by the undertaking; This

section would be the complete amendment to s. 3(1)(f), and s. 3(1)(f.1) would be deleted from the bill.

6 This proposal seeks to achieve the following objectives: 1. Recognize that the Canadian broadcasting system will no longer be a “closed system” under the new Act, and that the existing s. 3(1)(

f) in the 1991 Act may not be effectively applicable to that reality; 2. Retain the principle of maximum-but-not-less-than-predominant use of Canadian creative and other resources, as an important signifier of the essential role for Canadian creators; 3. Apply the “maximum-but-not-less-than-predominant use” language to Canadian programming only, rather than to all programming created and presented by each broadcasting undertaking operating in the Canadian system; 4.

Delete the “exception” clause, beginning with “unless the nature of the service provided…”, as outdated and inappropriate in the current system— “specialized content” is effectively a meaningless concept today, given the vastness of choice within the system; 5. Add that each broadcasting undertakings shall contribute significantly to Canadian programming, using the language currently applicable to private networks in s. 3(1)(

s) of the Act (and proposed to be deleted in Bill C-11), to retain the concept that s. 3(1)(

f) is a system-wide objective to support Canadian programming; 6. Retain the concept of, “to the extent that is appropriate for the nature of the services provided by the undertaking” as originally proposed in Bill C-10 at first reading, but add “services provided by” for consistency with language elsewhere in the Act, and add the word “greatest” to strengthen this language; and 7. Add the word “production” in between the words “creation” and “presentation” of Canadian programming, as C-11 currently does.

All of these proposals are consistent with existing language in the 1991 Act, Bill C-10 as originally drafted, and Bill C-11 as it now stands, and as such should be seen as entirely reasonable. With respect to “5.” Above, the current Act has imposed a comparable obligation on private broadcasters in the past without concern, and it therefore should not be an issue for private “online undertakings” as well. We note that the current s. 3(1)(

s) says “should” and not “shall”, and adds the language, “to an extent consistent with the financial and other resources available to them”, which we have proposed to delete from a renewed s. 3(1)(f). At the same time, however, the WGC’s proposal adds “to the extent that is appropriate for the nature of the services provided by the undertaking”, which is not present in the existing s. 3(1)(s), but which is present in Bill C-11. We believe these characteristics, taken together, provide an appropriate balance to the section. The WGC’s proposed amendment is not unnecessary or redundant in the context of the Act.

The WGC’s proposed amendment states, in part, that each broadcasting undertaking, “shall contribute significantly to the creation and presentation of Canadian programming”. At the same time, Bill C-11, as it currently exists, would amend

section 3(1)(a.1) to state that:

7 (a.1) each broadcasting undertaking shall contribute to the implementation of the objectives of the broadcasting policy set out in this subsection in a manner that is appropriate in consideration of the nature of the services provided by the undertaking; These are not duplicative concepts. The above

section refers to contributing to the implementation of objectives,

whereas the WGC’s proposal refers to contributing to the creation and presentation of Canadian programming. Our proposal therefore specifies programming contributions, and would not allow non-programming contributions to be considered sufficient to meeting the Act’s objectives.17 Canadian programming is at the heart of the Canadian broadcasting system, a specific statement to that effect in the Act is appropriate, as indeed it currently exists in s. 3(1)(

s) of the Act. Further, s. 3(1)(

e) states that, “each element of the Canadian broadcasting system shall contribute in an appropriate manner to the creation and presentation of Canadian programming”. This section, however, refers to each element contributing, not each broadcasting undertaking doing so (as appropriate for the nature of its services). “Element” is generally recognized to refer to s. 3(1)(b), which states: (

b) the Canadian broadcasting system, operating primarily in the English and French languages and comprising public, private and community elements, makes use of radio frequencies that are public property and provides, through its programming, a public service essential to the maintenance and enhancement of national identity and cultural sovereignty; As such, there are three “elements” in the Canadian broadcasting system— public, private, and community— and s. 3(1)(

e) states that each element, as a whole, shall contribute to Canadian programming. This is again distinct from specifying that each broadcasting undertaking shall contribute, as appropriate. It is not sufficient that an “element” as a whole contributes to Canadian programming— each undertaking within that element must do so, to the greatest extent that is appropriate to that undertaking. 18 In addition, the WGC feels that our proposal for s. 3(1)(

f) is consistent with both an expenditure requirement regime19 and a fund-contribution regime,20 as well as, by extension, a regime that allows 17 It is not at all far-fetched that broadcasting undertakings might seek to have non-programming activities counted as or towards their contribution to the Broadcasting Policy of Canada and, indeed, it has already happened.

The CRTC’s Tangible Benefits Policy long recognized non-programming activities as “social benefits”, such as donations to educational institutions or live festivals, in relation to changes to the ownership or effective control of broadcasting undertakings, and in practice broadcasters often sought to maximize the amount they could dedicate to such non-programming “benefits”. See Broadcasting Regulatory Policy CRTC 2014-459 and predecessor policies. 18 The CRTC will retain exemption powers, so in the case of some small broadcasting undertakings, what is appropriate for them to contribute may, in fact, be nothing.

As such, the WGC’s proposal does not require that literally every broadcasting undertaking must contribute to the creation, production and presentation of Canadian programming if it is not appropriate given the service provided by that undertaking.

This flexibility remains. 19 In which broadcasting undertakings are required to invest certain minimum amounts in the production of Canadian programming, which ultimately is presented on— and therefore inures to the benefit of— their own platforms, similar to “Canadian programming expenditure” or “CPE” requirements applicable to traditional Canadian broadcasters now under CRTC regulation. 20 In which broadcasting undertakings are required to contribute certain minimum amounts to a production fund, such as the Canada Media Fund (CMF), which is then used to fund the development and production of Canadian programming, subject to the eligibility rules of that fund.

8 undertakings to choose between the two.

Section 3(1)(

s) has in the past been associated with an expenditure requirement regime, since that is how private broadcasters have contributed to the system historically. But “contribute” is a broad enough word to encompass both, and need not be strictly associated with the regulatory mechanisms chosen for private networks in the past. Further, subsection (f.1) in C-11 appears to introduce a problematic distinction between the use of Canadian resources and Canadian programming, which is not found in (f).

This could lead to confusion as to what is meant in (f.1)— use of Canadian creative resources other than in programming?— and lead to lower standards for foreign online undertakings as a result. Bill C-11 would also add a new subsection at

section 5 of the Act, namely, subsection 5(2)(a.2), directing the CRTC to ensure that any broadcasting undertaking that cannot make maximum or predominant use of Canadian creative resources contributes to those Canadian resources in an equitable manner. The WGC would prefer to see

section 3(1)(

f) amended as we propose above than see the current subsection (f.1) which is “supplemented” with s. 5(2)(a.2) as C-11 currently proposes. For one, s. 5(2)(a.2) does not eliminate the fundamental two-tiered approach of sections 3(1)(

f) and 3(1)(f.1) in C-11. For another, it’s unclear how s. 5(2)(a.2) would even apply to foreign online undertakings given that they are not required to make maximum or predominant use in the first place. Finally, contributing “in an equitable manner” is unclear, since it is not stated what this “equity” is in comparison with. As such, the WGC prefers its approach to the one currently set out in Bill C-11, even with s. 5(2)(a.2). The WGC’s proposal for s. 3(1)(

f) is supported by many other key stakeholders in our sector, including the Coalition for the Diversity of Cultural Expressions (CDCE), the Canadian Media Producers Association (CMPA), the Directors Guild of Canada (DGC), and the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA). This is an industry-consensus proposal. Finally, while we aware that our proposal may be opposed by foreign online undertakings as somehow unworkable, there is no reason at all to believe that this in fact is the case. The

section as proposed refers to Canadian programming only— it has no impact whatsoever on the foreign location service production that foreign online undertakings also make in Canada, and it will not affect that activity going forward whatsoever. Moreover, as demonstrated above, the maximum-but-not-less-than-predominant wording is based on decades-old language from the 1991 Broadcasting Act, which has never been interpreted by the CRTC or others so as to impose unduly onerous obligations upon Canadian broadcasters.

Notably, the CRTC has seen fit to define Canadian content, in part, as only needing to meet a 6-out-of-10 CAVCO points standard under the 1991 Act. And, while the WGC would indeed prefer that all Canadian programming be Canadian-written, that is not a requirement now nor is there is any reason to believe that this 6-point standard is difficult for foreign streamers to meet. “Maximum” does not mean “total” or “everything”, and meaningful flexibility will continue to exist should our proposal be adopted. Simply put, maximum-but-not-less-than-predominant is already very flexible.

It is the minimum that we should expect from foreign online undertakings and Canadian broadcasters alike.

9 The Status of the Artist Act Under a last-minute amendment to the bill when it was before the Parliamentary Standing Committee on Canadian Heritage (CHPC), C-11 now includes the following: 31.1

Section 6 of the Status of the Artist Act is amended by adding the following after subsection (2): Non-application

(3) This Part does not apply in respect of an online undertaking, as defined in subsection 2(1) of the Broadcasting Act. The rationale for this amendment was not debated at CHPC, nor has any rationale been provided subsequently that justifies the serious reduction in bargaining rights of artists, including WGC members, under the Status of the Artist Act (SAA). The WGC opposes this amendment and requests that it be deleted from the bill. For context, the Status of the Artist Act addresses a gap in labour relations legislation involving creative artists.

Traditional labour relations legislation applies to “employees”, and is based on the fact that employers and employees have unequal bargaining power, which the existence of unions and collective bargaining is intended to remedy. Artists are typically not employees, however— they typically operate as independent contractors. However, there is an imbalance in negotiating power between artists and producers in much the same way as in an employee-employer relationship.

The Status of the Artist Act bridges this gap in the law by providing collective bargaining rights to artists even as they remain independent contractors. The federal Status of the Artist Act has long applied to “broadcasting undertakings”, as such undertakings are federally regulated. Beyond that, only Quebec has a provincial Status of the Artist Act with meaningful protections for artists. Other provinces, such as Ontario and British Columbia, do not have substantively comparable legislation.

The federal SAA only applies where specified “producers”, narrowly defined to mean “a government institution or broadcasting undertaking”, as described further in the legislation, directly engage “artists” for their services.21 Currently, the vast majority of domestic Canadian film television production activity involving WGC members occurs through intermediaries that are independent producers, and not “producers” as defined under the SAA.

As such, the SAA currently applies to Canadian broadcasters, and the WGC has been certified since 1996 under the SAA as the exclusive bargaining agent of screenwriters in a sector described in part as “independent contractors engaged by a producer subject to the Status of the Artist Act as: (

a) an author of a literary or dramatic work in English written for radio, television, film, video or similar audiovisual production including multimedia …”. The WGC has negotiated several scale agreements in the federal jurisdiction, including with broadcasters such as the CBC, CTV, Ontario Educational Communications Authority (TV Ontario) as well as with the National Film Board of Canada. The application of the SAA to “online undertakings” under the Broadcasting Act would be entirely consistent with this, status quo approach. 22 If online undertakings were to continue to make use of 21

Section 5. 22 Indeed, online undertakings very arguably already are subject to the SAA, given the CRTC’s longstanding

interpretation of the 1991 Broadcasting Act to be technologically neutral and to therefore include online audio and video.

10 independent producers to produce Canadian content for their services, such activity would continue to fall under existing collective agreements between those producers and creative guilds like the WGC, and not under the SAA. It is only if online undertakings choose to directly engage artists such as screenwriters would the SAA apply to them. This would be entirely appropriate. The WGC has heard concerns that the federal division of powers under the Constitution Act might require the amendment to the SAA as is currently in Bill C-11.

However, the WGC has obtained a legal opinion from the law firm of Ursel Phillips Fellows Hopkinson LLP which clearly states: [T]here is no jurisdictional reason why online undertakings should be excluded from the SAA. If online undertakings are broadcasters, as the entirety of Bill C -11 indicates, and as the CRTC has already found, then the Federal government has the jurisdict ion to subject online undertakings to the SAA labour regime like all other broadcasters.

Moreover, as also provided in a legal opinion from Ursel Phillips Fellows Hopkinson LLP, the amendment currently contemplated in C-11 may well violate the Charter of Rights and Freedoms: [G]iven the substantial inequality in power between artists and online undertakings, it is likely unconstitutional for the Government to exclude online undertakings from the application of the SAA while providing access to no other labo ur relations scheme. If the amendment is enacted, artists will have no meaningful ability to pursue their workplace goals in common and negotiate minimum terms and conditions.

While it is unclear what the Government’s objective is in pursuing this exclusion, it does not appear to be pressing and substantial. Given the above, we ask the Senate to simply remove this amendment from C-11, such that “online undertakings” are considered “broadcasting undertakings” under the SAA, just as they would be under the amended Broadcasting Act itself, and just as they are now. As further stated in the legal opinion from Ursel Phillips Fellows Hopkinson LLP: The proposed amendment is a radical change to the status quo.

For decades, broadcasters who directly produce Canadian content in -house have been required to respect the basic labour rights set out in the SAA. In our view, the statutory exclusion being contemplated in Bill C -11 could have many unpredictable consequences that are highly detrimental to Canadian artists. With the decline of traditional cable television, it is not difficult to imagine a future where virtually all television broadcasting is done through national or international online platforms.

The exclusion thus creates significant potential for artists to be exploited in a context where they will have no ability to act collectively and no access to the minimum protections in the scale agreements negotiated by the Guilds. The Writers Guild of Canada is the national association representing approximately 2,500 professional screenwriters working in English-language film, television, radio, and digital media production in Canada.

Joshua S. Phillips Direct Dial: (416) 969-3514 E-mail: jphillips@upfhlaw.ca Kristen Allen Direct Dial: (416) 969-3502 E-mail: kallen@upfhlaw.ca October 24, 2022 Via Email: (n.mcdougall@wgc.ca; l.channer@wgc.ca) Neal McDougall and Laurie Channer Writers Guild of Canada 366 Adelaide Street West, Suite 401 Toronto, ON M5V 1R9 Dear Neal McDougall and Laurie Channer: Re: Writers Guild of Canada – Bill-C-11 Review Opinion UPFH File No.: 0348139 Instructions: You have requested a legal opinion relating to from Bill C-11, the Online Streaming Act, which is presently before the Senate.

Specifically, this opinion considers the following issue: 1. Is there a viable argument that the exclusion of “online undertakings” from the SAA violates s. 2(

d) of the Charter?

Summary: Yes, given the substantial inequality in power between artists and online undertakings, it is likely unconstitutional for the Government to exclude online undertakings from the application of the SAA while providing access to no other labour relations scheme. If the amendment is enacted, artists will have no meaningful ability to pursue their workplace goals in common and negotiate minimum terms and conditions. While it is unclear what the Government’s objective is in pursuing this exclusion, it does not appear to be pressing and substantial.

Factual Background: The Guild’s SAA Certification: The Guild has also been certified since 1996 under the SAA as the exclusive bargaining agent of screenwriters in a sector described in part as “independent contractors engaged by a producer subject to the Status of the Artist Act as: (

a) an author of a

literary or dramatic work in English written for radio, television, film, video or similar audiovisual production including multimedia …”. The Guild has negotiated several scale agreements in the federal jurisdiction, including with broadcasters such as the CBC, CTV, Ontario Educational Communications Authority (TV Ontario) as well as with the National Film Board of Canada. It is noteworthy that this is a “sector wide” certification, in that it binds any “producer” covered by the SAA, which is defined in that act to include “broadcasting undertakings”, as discussed below.

Bill C-11 Bill C-11 was introduced for first reading in the House of Commons on February 2, 2022. It passed third reading on June 21, 2022 and is presently at second reading before the Senate. Bill C-11 is a revised version of predecessor legislation, Bill C-10, which was introduced in November 2020 but died on the order paper at the end of the session.

definitions into the Broadcasting Act to group broadcasting undertakings into the following categories: broadcasting, distribution, programming, network, and online. The relevant

telecommunication to more than one permanent or temporary residence or dwelling unit or to another such undertaking, but does not include such an undertaking that is an online 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, but does not include such an undertaking that is an online undertaking; ( entreprise de programmation) online undertaking means an undertaking for the transmission or retransmission of programs over the Internet for reception by the public by means of broadcasting receiving apparatus; ( entreprise en ligne) The CRTC has already found that devices such as personal computers, or televisions equipped with Web TV boxes, fall within the definition of "broadcasting receiving apparatus".2 There is therefore no question that a streamer falls within the definition of “online undertaking” under Bill C-11 and would be regulated under the amended Broadcasting Act.

Amendment to the Status of the Artist Act At third reading of Bill C-11, the government adopted a new amendment which would exclude online undertakings from the application of the labour relations regime set out in the SAA (“the amendment”). If the amendment is adopted, s. 6 of the SAA in its entirety will read:

(2) This Part applies  (

a) to the following organizations that engage one or more artists to provide an artistic production, namely, o (

i) government institutions listed in

Schedule I to the Access to Information Act or the

schedule to the Privacy Act, or prescribed by regulation, and o (ii) broadcasting undertakings, including a distribution or programming undertaking, under the jurisdiction of the Canadian Radio-television and Telecommunications Commission; and  (

b) to independent contractors determined to be professionals according to the criteria set out in paragraph 18(b), and who 2 Canadian Radio-television and Telecommunications Commission (Re), 2010 FCA 178 at para. 31.

o (

i) are authors of artistic, dramatic, literary or musical works within the meaning of the Copyright Act, or directors responsible for the overall direction of audiovisual works, o (ii) perform, sing, recite, direct or act, in any manner, in a musical, literary or dramatic work, or in a circus, variety, mime or puppet show, or o (iii) contribute to the creation of any production in the performing arts, music, dance and variety entertainment, film, radio and television, video, sound-recording, dubbing or the recording of commercials, arts and crafts, or visual arts, and fall within a professional category prescribed by regulation. Non-application

(3) This Part does not apply in respect of an online undertaking, as defined in subsection 2(1) of the Broadcasting Act. The amendment excludes all online undertakings – which may be broader than just the streamers – from the application of the SAA. Under the new

definitions, an online undertaking cannot be both an “online undertaking” and a “programming undertaking”. This means that even if CBC developed a subsidiary for its online streaming platforms, or essentially became an online undertaking, the amendment potentially would result in that activity being excluded from the SAA. If over time it shifted most of its creative content online, then the SAA would not apply to that work.

The amendment means that all artists considered “professionals” under the SAA3 who work for any online undertaking (foreign or Canadian) would not have the right to join an Association (such as the Guild) for the purposes of that work and generally would have no protection against unfair labour practices or other unfair actions regulated by the SAA. Likewise, the Guild would have no statutory platform through which it could become certified and negotiate a scale agreement for members who are directly retained by the streamers or other online undertakings.

Contextual Considerations for the Proposed Exclusion of Streamers from the SAA: The streamers articulated objective of owning the “Canadian content” that Bill C-11 would require them to produce suggests they could engage in significant levels of in- house production. As such, having them covered by the SAA is not merely a matter of principle but will have important real-world consequences for the writers they engage. On the other hand, government sources have stated the view that allowing “online undertakings” to be captured as “broadcast undertakings” under the SAA would be an 3 Sections 6(2) and 18(b).

expansion of the SAA’s scope, which would be an encroachment on provincial jurisdiction. Analysis: 1. Is there a viable argument that the exclusion of “online undertakings” from the SAA violates s. 2(

d) of the Charter? A.

Section 2(

d) Law As you likely know, s. 2(

d) of the Charter has been revitalized in recent years. In 2015, the Supreme Court overturned its pre-existing jurisprudence through a new trilogy of cases. At a high level, s. 2(

d) is now said to protect three classes of activity: the “constitutive” right to join with others and form associations, the “derivative” right to join with others to pursue other constitutional rights, and the “purposive” right to join with others to meet on more equal terms the power and strength of other groups or entities”4, which, in the labour context, includes a right to meaningful collective bargaining and to strike in pursuit of common workplace goals. For our purposes, the key case from the trilogy is Mounted Police.5 Mounted Police addressed a violation of s. 2(

d) because RCMP officers were excluded from the labour relations regime6 governing the federal public service, preventing them from unionizing and bargaining. Instead, members of the RCMP were subject to an alternative scheme, called the Staff Relations Representative Program (“SRRP”), through which they could raise employment issues and provide input to management on draft policies through elected representatives, but management ultimately had the final word on everything. Overturning earlier precedents, the majority of the Court found this scheme violated s. 2(

d) because it denied the RCMP members their choice of representation and did not permit them to identify and advance their workplace concerns free from management’s influence. In coming to this conclusion, the Court found that the key purpose of s. 2(

d) is to protect individuals, who alone may be powerless, from being overwhelmed by more powerful entities, while also enhancing their strength through the exercise of collective power.7 The Court stated that just as a ban on employee association impairs s. 2(d), so does a labour relations process that substantially interferes with the possibility of having meaningful collective negotiations on workplace matters.8 In finding that this scheme violated

section 2(

d) of the Charter, the Court reiterated that

section 2(

d) must be “interpreted in a purposive and generous fashion”9 and that a “fundamental purpose of 4 Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 (“ Mounted Police”).at para 66. 5 Mounted Police, supra. 6 First under the Public Service Staff Relations Act and now under the Public Service Labour Relations Act. 7 Mounted Police, supra at para. 70. 8 Mounted Police, supra at para. 68. 9 Mounted Police, supra at para 47.

section 2(d) [is] to protect the individual from ‘state-enforced isolation in the pursuit of his or her ends’.”10 That said, however, the Court maintained that the right to collective bargaining is one that guarantees a process rather than an outcome or a particular model of labour relations (i.e. access to a particular statute). The Court further noted that what is required to permit meaningful collective bargaining varies with the industry culture and workplace in question.11 Mounted Police built on the Court’s earlier decisions in Dunmore12 and Fraser13.

In Dunmore, agricultural workers challenged their exclusion from the collective bargaining regime created by the Ontario Labour Relations Act, 1995 (“LRA”). The majority of the Court concluded that the complete absence of legislative platform to organize made it impossible for the farm workers to meaningfully associate in order to achieve workplace goals and therefore violated s. 2(d). While the Court in Dunmore set out a test for whether an underinclusive labour relations scheme violates s. 2(d),14 it is unclear if this test is still good law, given the Court’s new articulation of the test for any s. 2(

d) violation in Mounted Police. In Fraser, the Court was faced with another constitutional challenge from farm workers relating to the legislative scheme imposed by the Government in response to Dunmore. The legislation granted farm workers the rights to: form and join an employees’ association, to participate in its activities, to assemble, to make representations to their employers through their association on their terms and conditions of employment, and to be protected against interference, coercion and discrimination. However, it provided no process for bargaining or a right to strike.

The majority of the Court found that there could not “be any doubt that legislation (or the absence of a legislative framework) that makes achievement” of collective workplace goals “substantially impossible, constitutes a limit on the exercise of freedom of association.”15 However, the Court clarified that governments are not constitutionally required, in all cases and for all industries, to enact laws that set up a uniform model of labour relations imposing a statutory duty to bargain in good faith, exclusive majority representation, or a mechanism for resolving bargaining impasses and disputes 10Mounted Police, supra at para 48. 11Mounted Police, supra at para. 93. 12Dunmore v.

Ontario, 2001 SCC 94 (“Dunmore”). 13Fraser v.

Ontario, 2011 SCC 20 (“Fraser”). 14The Court in Dunmore set out three requirements at paragraphs 22-26: (1) the claim of underinclusion should be grounded in fundamental Charter freedoms rather than in access to a particular statutory regime; (2) there must be a proper evidentiary foundation demonstrating that the exclusion from a statutory regime permits a substantial interference with protected associational activity; and (3) it must be shown that the state can truly be held accountable for any inability to exercise a fundamental freedom. 15 Fraser, supra at para. 32 emphasis added

regarding the

interpretation or administration of collective agreements.16 It found there was no violation of s. 2(

d) on the facts of that case.17 However, in the most recent Ontario case on point, the Ontario Labour Relations Board (“OLRB”) found it violated s. 2(

d) to exclude horticulture workers from the LRA. 18 As is the case with lawyers, horticultural workers had access to a statutory scheme for collective bargaining in many other provinces and were covered by the LRA between 1992–1995 before the Government enacted the exclusion under challenge. The Union argued that the exclusion substantially interfered with freedom of association by denying the workers access to any collective bargaining regime— especially considering their general vulnerability as employees and specific vulnerability as horticultural workers.

It further argued the purpose of the exclusion was to prevent collective bargaining, and this purpose itself violated s. 2(d). The Attorney General argued that the exclusion did not violate

section 2(

d) since the workers were not specifically prevented from organizing, negotiating, or withdrawing their services, and other employees (including lawyers) were similarly excluded from the LRA. In essence, it argued the workers could still collectively pursue their goals without access to a statutory scheme for certifying a union.

To determine whether the Charter had been violated, the OLRB adopted the framework set out in Dunmore “but as informed by the subsequent decisions of the Supreme Court of Canada” including Mounted Police, adding that “[w]hether or not there has been substantial interference with a protected freedom can only be determined in a factual context that considers the substantive content of that freedom.”19 On the evidence, the OLRB found that the exclusion constituted substantial interference under s. 2(

d) because, among other things, there was no evidence of any voluntary associational activities by the excluded employees at all. The OLRB rejected the need to find evidence of some special vulnerability of horticultural workers, noting that the employee relationship is inherently vulnerable.

As well, the OLRB rejected the fact there were a few voluntary (extra-statutory) collective agreements that covered horticultural workers as evidence that they were able to associate.20 Ultimately, the OLRB found there was no evidence that horticultural workers were able to unionize and bargain collective agreements in the face of employer opposition while excluded from collective bargaining legislation.

The wholesale exclusion of horticultural workers meant that none 16 Fraser, supra at para. 47 17 More recently, the Divisional Court again upheld the legislation applying to farmworkers has been upheld following the new trilogy, primarily because the UFCW had not demonstrated that the AEPA interfered with the freedom of employees to collectively withdraw their services: it did not explicitly curtail the right to strike.

See: UFCW v Aurora Cannabis Enterprises Inc., 2021 ONSC 5611 18 International Union of Operating Engineers, Local 793 v Hermanns Contracting Limited (2017) , 20 CLRBR (3d) 1, 2017 CanLII 82853 (OLRB). 19 Ibid at para 170. 20 Ibid at para 107.

of the minimum requirements for a meaningful collective bargaining regime were available to them: …As described above, the Supreme Court of Canada has prescribed minimum requirements for freedom of association.

Those requirements include: • The right to collectively present demands related to employment conditions to the employer • The duty of the employer to receive the demands in good faith • The right to a meaningful process of collective bargaining • The ability of employees to advance workplace concerns free of management’s influence The exclusion of horticultural workers from the Act means that the Act does not provide horticultural workers with those minimum requirements. The horticultural employees are not covered by the Act. Nor are they covered by the AEPA. They have no statutory protection.

They are like the title character in the 1960’s hit record by Martha and the Vandellas because they have “nowhere to run to, nowhere to hide”. The affected horticultural workers are in a statutory no man’s land. 21 Furthermore, the Board found it could infer that the legislature had intended to prevent collective bargaining, as they had been covered by the LRA before. 22 In effect, the OLRB found the exclusion substantially interfered with the employees’ freedom of association both in purpose and effect. The government did not attempt to defend the exclusion under

section 1. Ultimately, it is clear following Mounted Police that excluding workers from a statutory labour relations scheme can violate s. 2(

d) if it otherwise denies the ability to meaningfully collectively bargain and pursue collective workplace goals. B. Application to the Amendment to the SAA In our view, there is a strong argument that excluding online undertakings from the application of the SAA violates s. 2(

d) in a manner that would not be saved by s. 1 (where the infringement is justified as a reasonable limit in a free and democratic society). While a further investigation into the evidence relating to the relationship between artists and streamers is required, the Charter analysis will consider at least the arguments set out below. 1. While artists are not in a typical employer-employee relationship with streamers, there is a similar inequality in power present. The majority of streamers are large 21 Ibid at paras 128-129. 22 Ibid at para 111.

international corporations that have significant power over access to work in the industry. Although artists may only work for the streamer on a temporary basis (which is different than the employees in all the cases considered above), the streamer can influence their career in the long-term by controlling access to future work. As you know, reputation is critical in the entertainment sector. Unlike non-unionized employees in other industries, artists do not enjoy protections under employment standards legislation that may mitigate some of this imbalance of power.

This leaves artists uniquely vulnerable, and uniquely in need of a statutory scheme to associate and collectively pursue their workplace goals. 2. While it may be argued that artists do not need access to an Association to collectively pursue their workplace goals with the streamers, the SAA itself undermines this argument. The purpose sections of the SAA specifically recognize the importance of providing a legislative scheme to allow artists to organize to ensure their work is valued in a way that reflects their contributions to Canadian culture and society.

This is equally true for artistic endeavors that are ultimately accessed through online undertakings. Like horticultural workers who were subject to the LRA for a period of time, in this case “online undertakings” would have historically been subject to the SAA. The history shows that artists need unionization to collectively pursue their goals and meaningfully negotiate with more powerful entities like producers and broadcasters. 3.

The Government may argue that artists are professionals who own copyright over their craft and therefore are not vulnerable vis-à-vis the online undertakings in the same manner as farmers or horticultural workers. They may argue there is no need to provide access to a labour relations scheme for every piece of work an artist may engage in – in other words arguing this is just a small exception to what is otherwise an industry with union-representation.

In our view, these arguments ignore the significant vulnerability and precariousness of the industry, including but not limited entry-level and low-budget work in the fields of writing, acting, or directing. Unchecked, these circumstances can result in extremely precarious working conditions. And while it is true that the amendment at issue does not deny the right to associate with respect to all manners of work, this is a short-sighted argument that ignores the emerging dominance of streaming platforms in the production and distribution of content.

Following the recent OLRB case, it is open to a Court to find that excluding workers from a scheme they had access to previously violates s. 2(

d) in purpose, since the only basis to exclude artists from access is to prevent them from collective bargaining or collective negotiation in pursuit of their workplace goals. Even applying the more restrictive Dunmore framework, it is very likely that it violates s. 2(

d) to deny artists access to a statutory platform to organize and negotiate in pursuit of their workplace goals with respect to the streamers.

While it remains open for the government to seek to justify the exclusion under

section 1 of the Charter, to date the Guild has been provided with no rationale for the exclusion which would even arguably be considered “pressing and substantial” so as to support such a justification. Conclusion: In our view, the case law reviewed above suggests that it would be unconstitutional to exclude “online undertakings” from the application of the SAA. Please do not hesitate to contact us if you wish to discuss this opinion further. Yours truly, Ursel Phillips Fellows Hopkinson LLP Joshua S. Phillips JSP/nm Kristen Allen

Joshua S. Phillips Direct Dial: (416) 969-3514 E-mail: jphillips@upfhlaw.ca Kristen Allen Direct Dial: (416) 969-3502 E-mail: kallen@upfhlaw.ca October 24, 2022 Via Email: (n.mcdougall@wgc.ca; l.channer@wgc.ca) Neal McDougall and Laurie Channer Writers Guild of Canada 366 Adelaide Street West, Suite 401 Toronto, ON M5V 1R9 Dear Neal McDougall and Laurie Channer: Re: Writers Guild of Canada – Bill-C-11 Review Opinion UPFH File No.: 0348139 Instructions: You have requested a legal opinion relating to certain issues arising from Bill C-11, the Online Streaming Act , which is presently before the Senate.

Specifically this opinion considers the following issues: 1. Are streamers that produce content in-house engaging in a federal undertaking, such that, absent the proposed statutory exclusion in Bill C-11, they would be regulated by the Status of the Artist Act (“SAA”)? 2. Does the proposed amendment to Bill C-11 that would exclude “online undertakings” from the application of the SAA maintain status quo, or change it? What are some of the potential consequences of the amendment?

Summary: 1. Are streamers that produce content in-house engaging in a federal undertaking, such that, absent the proposed statutory exclusion in Bill C-11, they would be regulated by the Status of the Artist Act (“SAA”)?  Yes, there is no jurisdictional reason why online undertakings should be excluded from the SAA. If online undertakings are broadcasters, as the entirety of Bill C-11 indicates, and as the CRTC has already found, then the Federal government has the jurisdiction to subject online undertakings to the SAA labour regime like all other broadcasters.

- 2 - 2. Does the proposed amendment to Bill C-11 that would exclude “online undertakings” from the SAA maintain status quo, or change it? What are some of the potential unforeseen consequences of the amendment?  The proposed amendment is a radical change to the status quo. For decades, broadcasters who directly produce Canadian content in-house have been required to respect the basic labour rights set out in the SAA. In our view, the statutory exclusion being contemplated in Bill C-11 could have many unpredictable consequences that are highly detrimental to Canadian artists.

With the decline of traditional cable television, it is not difficult to imagine a future where virtually all television broadcasting is done through national or international online platforms. The exclusion thus creates significant potential for artists to be exploited in a context where they will have no ability to act collectively and no access to the minimum protections in the scale agreements negotiated by the Guilds.

a) an author of a literary or dramatic work in English written for radio, television, film, video or similar audiovisual production including multimedia …”. The Guild has negotiated several scale agreements in the federal jurisdiction, including with broadcasters such as the CBC, CTV, Ontario Educational Communications Authority (TV Ontario) as well as with the National Film Board of Canada. It is noteworthy that this is a “sector wide” certification, in that it binds any “producer” covered by the SAA, which is defined in that act to include “broadcasting undertakings”, as discussed below.

Generally speaking, Bill C-11 aims to modernize the Broadcasting Act to bring Internet- based streaming services like Netflix, Amazon Prime Video, Crave and Disney+ (“streamers”) explicitly under CRTC regulation and subject to Canadian content requirements.1 1 Prior to Bill C-11, the CRTC generally treated streamers as engaged in “broadcasting” under the Broadcasting Act but has chosen to exempt them from licensing and regulation through the promulgation

- 3 - Bill C-11 amends / introduces new

definitions into the Broadcasting Act to group broadcasting undertakings into the following categories: broadcasting, distribution, programming, network, and online. The relevant

definitions in Bill C-11 include: broadcasting means any transmission of programs — regardless of whether the transmission is scheduled or on demand or whether the programs are encrypted or not — by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place; (radiodiffusion) broadcasting undertaking includes a distribution undertaking, an online undertaking, a programming undertaking and a network; ( entreprise de radiodiffusion) distribution undertaking means an undertaking for the reception of broadcasting and its retransmission by radio waves or other means of telecommunication to more than one permanent or temporary residence or dwelling unit or to another such undertaking, but does not include such an undertaking that is an online 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, but does not include such an undertaking that is an online undertaking; (entreprise de programmation) online undertaking means an undertaking for the transmission or retransmission of programs over the Internet for reception by the public by means of broadcasting receiving apparatus; ( entreprise en ligne) The CRTC has already found that devices such as personal computers, or televisions equipped with Web TV boxes, fall within the definition of "broadcasting receiving apparatus".2 There is therefore no question that a streamer falls within the definition of “online undertaking” under Bill C-11 and would be regulated under the amended Broadcasting Act.

(2) This Part applies  (

a) to the following organizations that engage one or more artists to provide an artistic production, namely, of successive Digital Media Exemption Orders, Available online: https://crtc.gc.ca/eng/archive/2012/2012-409.htm 2 Canadian Radio-television and Telecommunications Commission (Re), 2010 FCA 178 at para. 31.

- 4 - o (

i) government institutions listed in

Schedule I to the Access to Information Act or the

b) to independent contractors determined to be professionals according to the criteria set out in paragraph 18(b), and who o (

- 5 - but will have important real-world consequences for the writers they engage. On the other hand, government sources have stated the view that allowing “online undertakings” to be captured as “broadcast undertakings” under the SAA would be an expansion of the SAA’s scope, which would be an encroachment on provincial jurisdiction. Analysis: 1. Are streamers who produced artistic content in-house engaging in a federal undertaking, such that, absent the proposed statutory exclusion in Bill C-11, they would be regulated by the Status of the Artist Act (“SAA”)? A.

When the Federal Government Has Legislative Authority Over Labour Relations The federal and provincial governments derive their respective authority to legislate in certain areas from the distribution of powers in sections 91 and 92 of The Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3 (the “Constitution”). While the provinces have general jurisdiction to regulate labour relations under the property and civil rights power set out in s. 92(13) of the Constitution, there are at least two ways the federal government can have jurisdiction over labour relations.

First, when the entity at issue is a core federal undertaking in its own right.

Secondly, where the entity’s activities are found to be "vital," "essential" or "integral" to a core federal undertaking (sometimes call “derivative jurisdiction”). 4 To determine if the federal government has derivative jurisdiction, adjudicative bodies consider if the entity’s activities are vital, essential, or integral to a federal undertaking to such a degree that it becomes necessary to apply federal legislation to the entity’s labour and employment relationships. 5 This is a contextual analysis which focuses on the relationship between the activity, the particular employees under scrutiny, and the federal operation that is said to benefit from the work of those employees.6 B.

Case Law Defining Core Broadcasting Undertakings

Section 92(10)(

a) of the Constitution provides the Federal government with jurisdiction over “Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province.” In contrast, the provinces are granted power over “local works and undertakings”. Over several decades, Canadian Courts have repeatedly affirmed, even in the face of evolving technology, that broadcasting is generally a federal undertaking under s. 4 Tessier Ltée v.

Quebec (Commission de la santé et de la sécurité du travail) , 2012 SCC 23 ; See also United Transportation Union v. Central Western Railway Corp. , [1990] 3 S.C.R. 1112 (Central Western); Westcoast Energy Inc. v. Canada (National Energy Board) , [1998] 1 S.C.R. 322 (Westcoast Energy). 5 Keith Russell v Writers Guild of Canada, 2022 CIRB 1004 at para. 39. 6 Russell (Re), [2022] CIRBD No 6 at para. 54.

- 6 - 92(10(a).7 Historically, there was also a reluctance on the part of the Courts to divide constitutional control over different aspects of broadcasting (i.e. transmission versus distribution versus program development) when provided by one entity, as the whole undertaking is generally viewed as a functionally inter-related system.

For example, in Capital Cities Communications (1977),8 the respondent argued that the distribution system—the cable network that carries the signals from the telecast to the televisions in the homes of the cable subscribers—was a separate local undertaking within provincial jurisdiction. The Supreme Court determined that the cable system was “no more than a conduit for signals from the telecast”, and that federal power over broadcast television extended to the cable system.

The Court found that it would be incongruous to deny the continuation of regulatory authority because the signals are intercepted and sent on to viewers through a different technology. Finally, it confirmed that program content regulation is inseparable from regulating the undertaking through which programs are received and transmitted as part of the total enterprise.9 In Division of CHUM Limited ( City-TV),10 the Canadian Industrial Relations Board (the “Board”) determined that webcasting services amounted to a form of broadcasting.

In that case, the Board had to determine the constitutional jurisdiction of CityInteractive, a division of CHUM Ltd., which was involved in the design and production of interactive marketing materials such as websites, online chat services, and webcasting for CHUM television stations. After applying the constitutional tests, the Board found CityInteractive to be under federal jurisdiction as “the ‘interactive arm’ of the television broadcasting operation”.

The Board concluded that, even if CityInteractive was severable from CHUM, CityInteractive would be federal on its own account, as its webcasting services amounted to a form of broadcasting, and its other interactive services were interprovincial in nature, and were being performed on a regular and continuous basis as an integral part of CityInteractive’s operation.

The Board stated as follows: [165] The test for determining whether CityInteractive is an interprovincial undertaking on its own account boils down to the question of “what is the ordinary business of CityInteractive?” The answer to that question leads to the conclusion that CityInteractive’s ordinary business connects provinces on a regular and continuous basis, rendering it federal in nature. CityInteractive is not a mere publisher on the Web.

It carries on activities that in effect take television on-line and the Internet to the air. 7 An early case in this respect is Re C.F.R.B. and Attorney-General for Canada et al., 1973 CanLII 788, where the Ontario Court of Appeal had to determine the validity of a provision in the Broadcasting Act which prohibited the radio broadcasting of partisan political programs on the day before an election.

The Court held that Parliament's jurisdiction over radio extended to the control and regulation of the intellectual content of radio communication and that “the whole of the undertaking of broadcasting” was within federal jurisdiction. 8 Capital Cities Communications Inc v Canadian Radio-Television Commission, [1978] 2 SCR 141. 9 In the companion case, Public Service Board v.

Dionne (1977), Laskin C.J. affirmed the exclusivity of federal power over cable television, and affirmed the Court's refusal to accept “divided constitutional control of what is functionally an inter-related system.” 10 City-TV, CHUM City Productions Limited, MuchMusic Network and BRAVO!, Division of CHUM Limited, 1999 CIRB 2 (CanLii).

- 7 - This case suggests that where a web-broadcaster (like a streamer) is also engaged in producing program content in-house, labour relations would be subject to Federal jurisdiction. C.

Case Law Considering the Derivative Jurisdiction to Regulate Labour Relations with Producers Despite the conclusions in the above-noted cases, adjudicators have also found that where programming content is developed by a separate entity who then sells the content to the broadcaster, that entity’s activities may be regulated under provincial labour law unless there are unique facts that suggest it is integral or vital to the federal broadcasting undertaking (and as such there is derivative federal jurisdiction).

The leading case on this point is the 1983 decision of the SCC in Paul L’Anglais Inc.11 In that case, the core federal broadcaster, Télé-Métropole, had set up two companies, Paul L’Anglais Inc. and JPL Productions Inc., to sell commercial air time and to produce commercials which were sold to Télé-Métropole. These wholly-owned subsidiary companies had their own employees and had clients unrelated to the parent company. The subsidiaries were not involved in the broadcasting or transmission of the content they sold to the parent.

The decision was decided on a very limited evidentiary record, but the Court found: The sales which are made by respondents' employees and the programs they produce serve Télé-Métropole. The activities of respondents' employees are conducted on a continuous and regular basis. These facts do not necessarily create the requisite relationship between the respective operations of the businesses. A television broadcasting undertaking may well sell no sponsored air time and produce no programs, yet remain a television broadcasting undertaking.

Conversely, an undertaking may sell sponsored air time for another or produce programs which it sells to another undertaking without thereby becoming a television broadcasting undertaking. It may be asked whether these activities would fall within the field of television broadcasting if they had been undertaken by companies completely unrelated to the parent company. I think the answer to this question is clearly no. Selling sponsored air time and producing programs and commercial messages does not make the seller or producer a television broadcaster.

Furthermore, these activities are not indispensable to the Télé-Métropole Inc. operation.12 [emphasis added] More recently, in Exploration Production Inc (Re),13 the Board summarized the impact of Paul L’Anglais as follows: 11 Canada Labour Relations Board et al. v. Paul L'Anglais Inc. et al., 1983 CanLII 121 (SCC), 12 A similar finding was made in Canadian Broadcasting Corp. (Re), (1987) 71 di 12 [CIRB]. 13 [2011] CIRBD No 22; upheld on judicial review, see Communications, Energy and Paperworkers Union of Canada v Exploration Production Inc, [2012] FCJ No 1271.

- 8 - 116 In that case, the Supreme Court of Canada considered whether there was a vital, essential or integral relationship between Télé-Métropole Inc., a television broadcasting undertaking and two of its subsidiary operations, one of which was a company that produced programs and commercial messages. The Court applied the Northern Telecom test and first found, among other things, that the activity of producing program content and commercials did not fall within the definition of broadcasting.

It then stated that the activity of producing programs and commercials and selling them to a broadcaster did not turn the producer into a broadcasting undertaking. Thus, if those activities are undertaken by an unrelated company, the entity would remain under provincial jurisdiction. Finally, it stated that the links of the subsidiary, namely the corporate relationship and the commercial benefit it provided to the broadcasting undertaking by its services, did not have the effect of making the producer part of the television broadcasting undertaking, so as to bring it under federal jurisdiction.

The possible exception would be if those activities were in some way indispensable to the broadcasting operation. 117 It may be taken from this that, as a general rule, production of programming content itself is not ordinarily considered to be part of broadcasting, even where there is overlap of corporate directors and the sharing of facilities. Such overlap is not sufficient to establish that the subsidiary operation is vital, essential or integral to the core federal undertaking.

This does not mean, however, that the relationship between two such entities can never meet the test and every case will turn on its own specific facts. In that case, EPI was subsidiary owned by Discovery Canada, a broadcaster, and produced documentaries for its science channels (and a small amount of content for other broadcasters). EPI was not subject to regulation under the Broadcasting Act and did not require a CRTC broadcasting licence.

The Board found its core function was not broadcasting, and further it was not vital or integral to Discovery Canada’s undertaking, in part because Discovery Canada relied on other producers in addition to EPI to meet its Canadian content requirements. D. Application of the Federalism Law to the Streamers Like radio and television, streamer services like Netflix make content accessible across provincial boundaries. While technology may evolve in ways which could impact our analysis, we believe the Board’s conclusion in City-TV that webcasting services is broadcasting is instructive.

Importantly, the fact that the purpose of the amendments in Bill C-11 is to explicitly subject online broadcasting undertakings to regulation undermines the Government’s position that it does not have the constitutional power to regulate the streamers as broadcasters. If this were the case, they would not be able to regulate any aspect of the streamer activity as a federal undertaking. Therefore, if a streamer conducts production work in-house (i.e. by directly contracting with the artists), we see no legal reason why the streamer’s labour relations would fall within provincial jurisdiction.

The status quo is that the SAA would apply, absent an statutory exemption. The SCC’s decision in Capital Cities suggests that where developed

- 9 - in-house by the broadcaster, program content is integral and inseparable from the core broadcasting undertaking and therefore subject to federal jurisdiction. While the streamers may argue the should be excluded form the SAA because the way they do production work in-house is analogous to assigning the work to independent producers, this is incorrect. Firstly, none of the cases have found that a broadcaster who has directly produced work is subject to provincial jurisdiction for labour matters.

Secondly, if the streamers deploy subsidiaries or other arms-length companies to contract with the artists, whether the subsidiaries’ activities are integral to the federal activity of broadcasting would have to be determined on a case-by-case basis, based on the relationship between the parent entity and the subsidiary and the work and artists at issue. There is simply no a basis to exclude the application of the SAA to all online undertakings because of a concern about encroaching into provincial jurisdiction. 2.

Does the proposed amendment to Bill C-11 that would exclude “online undertakings” from the application of the SAA maintain status quo, or change it? What are some of the potential unforeseen consequences of the amendment? The status quo is that if a broadcaster contracts with a truly independent producer to retain artists who in turn create programming content, then the artists are engaged by the independent producer and their relationship is regulated provincially. However, if the broadcaster produces the content in-house, like CBC, they are appropriately subject to federal jurisdiction.

To maintain status quo, there should be no statutory exemption. Online undertakings who produce content in-house should be subject to the SAA like all other broadcasters who produce content in-house. If they choose to contract with a truly independent producer, then the status quo is that independent producer will be subject to provincial jurisdiction. With respect to the ultimate ownership of rights by streamers or independent producers, the proposed exclusion has no impact either way.

Broadly speaking, such “ownership” is determined by the application of intellectual property law and the contractual terms negotiated between the streamers and rights holders. Neither of these are influenced by the proposed exclusion, other than the fact the streamers would not be compelled to recognize artists’ associations such as the Guild as exclusive bargaining agents when negotiating such rights. In our view, the exclusion being contemplated in Bill C-11 could have many additional consequences.

Firstly, in-house production by streamers would emerge as a massive non-union sector, creating a significantly unbalanced playing field in the Canadian production industry as between largely unionized traditional broadcasters/independent production and streamers. Secondly, it is not difficult to imagine a future where virtually all television broadcasting is done through national or international online platforms.

Traditional broadcasters who find themselves increasingly relying on online broadcasting may seek to have all or some of their operations considered “online undertakings” and thereby not be subject to the SAA, upsetting decades of SAA foundation to the current scale agreements. These, and other unforeseeable consequences, could have significant destabilizing impacts on the Canadian industry.

- 10 - If the streamers find it more economic to produce content in-house, they have the economic and technical capacity to do so. Without the protection against reprisal and the right to minimum standards associated with SAA certification, there would be nothing to stop the streamers from refusing to contract with artists who try to informally organize in pursuit of common terms or standards. There would also be nothing to stop the streamers from pursuing a ‘race to the bottom’ type arrangement with new artists who are desperate to break into this intensely competitive industry.

The amendment therefore leaves Canadian artists extremely vulnerable to future exploitation, which may over time result in a weakening of talent in Canada as artists are driven out of the profession by the sub- standard labour conditions. Conclusion: In our view, there is no jurisdictional reason why online undertakings should be excluded from the SAA. If online undertakings are broadcasters, as the entirety of Bill C-11 indicates, and as the CRTC has already found, then the Federal government has the jurisdiction to subject them to the SAA regime like all other broadcasters.

The amendment at issue is highly problematic for Guild members, and could result in increasing precarity when they work for streamers, who over time are likely to dominate the traditional media market. Please do not hesitate to contact us if you wish to discuss this opinion further. Yours truly, Ursel Phillips Fellows Hopkinson LLP Joshua S. Phillips JSP/nm Kristen Allen

Document details

Collection	Senate Committees
Citation	TRCM / Brief / brief_writersguildofcanada_bundle_e
Type	committee
Volume / chapter	441 / Brief / brief_writersguildofcanada_bundle_e
Language	en
Format	pdf
Source	COMM_SEN
Identifier	d2569f179e49e5db177ec9de5b958eccdfc121b2

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