By Ahmad Hathout
Apple has filed a letter to the Federal Court of Appeal requesting that the panel of justices review a recent CRTC decision that it believes could bolster its challenge to the commission’s own base contribution ruling.
In the letter dated December 11, the tech giant alleges that the CRTC has handicapped the attorney general – its legal counsel at the court – by stating in paragraph 4 of its November decision on the definition of Canadian content that the commission believes defining such programs is “a necessary step before establishing financial or policy measures to support its creation and distribution in the audio-visual sector.”
Apple is telling the Federal Court of Appeal that this is one of the two pillars of its challenge to a CRTC decision to impose on it and other foreign streamers an annual five per cent financial levy to put toward Canadian content funds – a decision that was made over a year before it pitched a new rubric for defining Canadian content. The appeal court already held its hearing on the matter this summer and has yet to release a decision.
Apple’s legal argument, which is supported by Spotify, notes that section 19 of the policy directions from cabinet – on the recommendation of Canadian Heritage – says the CRTC must “prioritize the implementation of sections 13 to 16” when it comes to installing the Online Streaming Act, which amends the Broadcasting Act.
Under section 13 of the policy direction, the CRTC is directed to make a determination on Canadian programming, including what positions Canadians must hold and how much they should own in the intellectual property, which is exactly what the CRTC determined in the November 2025 decision.
Apple also points to cabinet’s Regulatory Impact Analysis Statement supplement, which states that, “Given significant public interest and the foundational nature of these definitions to the regulatory regime, the Commission would be directed to prioritize its examination of these definitions.” (Underline is Apple’s.)
The attorney general has argued in its memorandum that, “While the Policy Directions obliged the Commission to prioritize the implementation of section 13, they did not impose a sequence on the Commission, nor mandate that the implementation of sections 13 to 16 was required before the Commission took any other action.”
Apple is hoping that the court will consider this alleged discrepancy before rendering a decision.
The company, which operates music and television streaming arms, said defining Canadian programming first is crucial for it, and other streamers, to determine the extent to which they are already contributing to Canadian programming, which in turn would allow them to fairly (this is a procedural fairness argument) participate in the process to determine whether the base contribution mandate is even required.
“The reason for this prioritization is that it would be impossible for the CRTC to determine what constitutes ‘appropriate’ contributions to the ‘creation and presentation of Canadian programming’ without first defining what is meant by ‘Canadian programming,’” Apple said in its memorandum from April.
“And yet, despite the fact that the Governor-in-Council’s order was binding on it, and despite the fact that the definition of Canadian programming was ‘foundational’ to the entire exercise being undertaken by the CRTC, the Commission inexplicably failed to prioritize that foundational definitional exercise,” Apple added in that memo. “In so doing, the CRTC erred in law.”
Foreign streamers, for example, have argued against the base contribution because they have made extensive contributions to the Canadian broadcasting system, including by partnering with Canadian producers.
While the base contribution is mandated on streamers making $25 million or more in Canadian revenue, it is just one of several ways players can contribute to the system, which includes discoverability measures for domestic programming.
