By Ahmad Hathout
The attorney general is telling the Federal Court of Appeal that challenges to the CRTC’s rule on requiring disclosure of certain financial information is premature because the order is not final.
“As a general principle, decisions and orders must be final in nature to be considered by courts of law,” AG said in its response submission, dated Monday. “A statement about how an administrative decision-maker intends to act in the future has no legal effect.”
The Canadian affiliate of the Motion Picture Association (MPAC) and its members, including Netflix, Amazon Prime Video, Sony Pictures Entertainment, and Paramount+, are arguing that, by declaring certain financial information “public” in a proposed order in November, the CRTC is effectively pre-empting their ability to designate certain competitively sensitive information as confidential as is their right under section 25.3 of the Broadcasting Act, which was amended by the Online Streaming Act that brought these streamers under regulation. Apple has also filed a leave to appeal application challenging the financial disclosure decision.
“Simply because the Commission refers to the Broadcasting Regulatory Policy as a ‘decision’ does not make it so for the purposes of an appeal,” the AG says. “The Commission has set out a Policy and an intention to make future decisions in light of that Policy. This intention is made explicit in this context by the characterization of the Policy as a ‘general approach’ to be applied in the future.”
“Even if the Commission had gone so far as to have ostensibly ‘made up its mind’ on certain points, the fact remains that the Commission has only set out a general Policy to be applied once it receives confidentiality designations and particular submissions by parties in the future,” the AG added. “Any challenge to the disclosure sections of the Broadcasting Regulatory Policy is therefore premature.”
The CRTC is looking to make public annual contributions the online undertakings make to domestic content and their gross Canadian broadcasting revenues.
The AG made a similar argument when the foreign streamers argued against a five per cent base contribution order, which at the time of the filing was not final. In that case, the Federal Court of Appeal allowed the streamers to amend their applications after the order was finalized.
