By Ahmad Hathout
The Alliance Nationale De L’Industrie Musicale (ANIM), a representative for francophone and Acadian music, filed an appeal late last month against a Federal Court decision that denied it the right to damages from the CRTC for a nine-year old decision that allocated more broadcast funding to an English-language music fund than a French-language equivalent.
In 2012, the CRTC released a decision that forced Sirius XM Holdings Inc., as a condition of license, to allocate 20% of 4% of its gross revenues to the English-language fund, called Factor, and just 10% to Factor’s French-language counterpart, known as Musicaction.
In 2019, ANIM charged in Federal Court that the regulator did not notify it prior to holding a hearing about Sirius’ licensing obligations that it was going to deviate from a previously held funding equilibrium between the two funds, and requested monetary damages from the court and a clarification on the CRTC’s obligations under the Official Languages Act (OLA).
But last month, the Federal Court determined the CRTC, which filed a motion to exclusively remove claims against it, would not need to pay damages for the decision and would not need to raise the French-language fund amount because the regulator enjoys a level of immunity as an adjudicator.
The decision, however, did not rule out further action on the case as it relates to the language clarification question or whether the regulator correctly met the language obligation. (The OLA was amended in 2005 to provide legal remedies to enforce obligations by federal institutions to take positive measures in support of minority communities.)
In response, ANIM filed an application in the Federal Court of Appeal on Sept. 24 asking it to find that the lower court was wrong in slashing from its application damages and increasing the amount afforded to the Musicaction fund. It argues, among other things, that there must be court oversight in the case of the CRTC not informing ANIM of its process before the Sirius hearing and that the court does have jurisdiction to make a determination on the language question.
ANIM first expressed its dismay to the CRTC in 2013, filing a letter co-signed by the Association quebecoise de L’industrie du disque (ADISQ), the Association of Professional Music Publishers (APEM), and the Professional Society of Authors and Composers of Quebec (SPACQ). The letter charged that the CRTC’s process lacked transparency and the affected groups were not notified of the impending fund changes that impacted them.
ANIM also went to the Official Languages Commissioner, alleging the regulator failed to uphold two sections of the languages legislation for not notifying the affected French-language groups. Six years later, after initially ruling in favour of the group in a preliminary report, in July 2019 the languages commissioner ultimately found ANIM’s case was unfounded, thus triggering its court appeals.
ANIM said, had the CRTC leveled the funds, Musicaction would have received $14 million over the six-year period to the 2019 decision, compared to the $7 million it received.
In February 2020, ADISQ had asked the Governor-in-Council to send back and force a rehearing of the CRTC decision that led to the lopsided funding allocations.
The Federal Court has yet to make a determination in another Official Languages Act case as well. In 2019, then NDP MP Francois Choquette filed a judicial review application, which alleged that the federal government, in promoting a $500-million investment from Netflix in Canada in 2017, did not ensure that an equal monetary investment was made in French-language markets.
The parties in the Choquette case recently agreed to suspend the case by six months, according to the court docket.
