By Denis Carmel
OTTAWA – In the latest development in the list of never-ending disputes between Bell Canada Enterprises (BCE) and Québecor concerning their respective sports channels, the Federal Court of Appeal (FCA) denied BCE a judicial review of a CRTC decision that found Bell was giving RDS, its French-language sports channel, undue preference.
Both Bell and Québecor own programming services as well as distribution ones, which has them competing on many fronts.
In a 2018 decision, the Commission sided in final offer arbitration (FOA) with BCE’s rates for the distribution of Québecor’s sports service TVA Sports on BCE distribution services.
Approximately a year later, Québecor went back to the Commission saying Bell was conferring on itself an undue advantage in relation to its distribution of RDS on its distribution services compared to its distribution of Québecor’s TVA Sports.
The CRTC agreed BCE was indeed conferring on itself an undue preference.
BCE then appealed, first seeking leave from the FCA in accordance with section 31(2) of the Broadcasting Act. That leave was denied.
But BCE came back with a request for a judicial review of the same CRTC decision, in accordance with Section 28(1)(c) of the Federal Courts Act. BCE had already indicated to the FCA it would do this when it first sought leave.
So, the first thing the court had to determine was whether BCE could indeed seek a judicial review after being denied leave to appeal. It decided BCE could but on limited grounds. “Bell concedes that it cannot plead that the Commission’s decision is unreasonable on questions of law or jurisdiction,” the FCA decision reads.
The court turned to the main argument of BCE: “Did the 2018 FOA Decision and the Undue Preference Decision decide the same question?”
“Bell also argued that the Decision encourages a multiplicity of proceedings and was an abuse of process by litigation.”
Really?
The FCA ruled that FOA and the undue preference were different issues and dismissed BCE’s application concluding: “Even if the same factors were considered in both cases, this would not mean that the same question was decided in the two decisions.”
It went on (facetiously, we thought), to state: “A homeowner can use water test strips to test the water in the backyard swimming pool and the water from the kitchen tap. The same factors are considered in both cases (pH, alkalinity, chlorination) but that does not mean that the pool water is safe to drink or that the tap water is safe for swimming. The issue is not whether the same factors were considered but the purpose for which they were considered.”
Writing decisions in the heat of the summer produces such gems!
