QUEBECOR’S GROUPE TVA FORMALLY filed in December its appeal in Federal Court against a CRTC decision that forced it to continue to provide a sports channel signal to Bell customers.
But the submission to the court came before the Supreme Court of Canada determined in a set of cases late last month how it would exercise its ability to review decisions made by administrative bodies such as the CRTC – otherwise known as the standard of review. Bell was successful in having the highest court in the land reverse a 2016 decision by the CRTC that said it could not replace American commercials with Canadian ones on American networks during the Super Bowl.
The standard of review concept is referenced in Groupe TVA’s appeal document, filed December 9, and the broadcaster’s lawyers argue the Federal Court of Appeal should determine the CRTC has no jurisdiction to regulate the terms and conditions of affiliation agreements between broadcasting distribution undertakings and program providers, and “does not allow it to interfere in their [economics] if they do not agree.” It also argues the CRTC order allows for the continued communication of its work without the consent of the copyright holder.
“In all cases, and considering that the standard of review is before the Supreme Court, the Appellants submit that the challenged provisions must be declared [outside of the CRTC’s jurisdiction], regardless of the applicable standard of review,” the appeal said.
Groupe TVA’s leave to appeal application was granted by the court after it challenged the CRTC’s order for it to reinstate its sports channel to Bell customers after it cut off the signal at the start of the NHL playoffs in April. Quebecor has said its TVA Sports channel is undervalued compared to Bell’s own RDS sports channel. The two companies have never agreed on amicable terms for the TVA Sports channel since the companies signed the initial agreement in 2011; instead, it has gone to CRTC arbitration, where the regulator had selected Bell’s offer, which Quebecor said is not enough to support the channel’s operating costs.
Following the extraordinary act of pulling the signal, the CRTC held an expedited hearing on the matter, which led to its next-day decision to find Quebecor violated the Broadcasting Act and suspended its TVA license unless it reinstates the channel based on the grounds that the standstill rule – which states that, during a period of price disagreement, the status quo must be maintained – applies.
Christopher Rootham, a lawyer representing Telus Corp. as an intervenor in the case, said the resulting SCC decision clarifying the standard of review principle will mean the TVA case will be argued “a bit differently now,” but did not specify how. Another lawyer, acting as counsel to intervenor Cogeco, also said the SCC decision will factor into future written submissions in the case. Both intervenors have yet to file their submissions.
Groupe TVA declined to comment when asked about how the Supreme Court’s ultimate decision on the matter will affect its case or arguments.
The December 19 Super Bowl decision examined whether the CRTC had the jurisdiction under Section 9(1)(h) of the Broadcasting Act to ban the practice of simultaneous substitution and determined that the regulator did not, because that section – used to justify the 2016 decision – did not allow the regulator to ban said advertising, but only allowed for the CRTC to order BDUs to carry programming services.
In other words, the CRTC had no authority within that statute to put conditions on mandatory carriage. Bell and the NFL, who opposed the CRTC’s ruling and stated that it didn’t have the jurisdiction as it couldn’t ban the practice on individual programs, were initially denied their appeal at the Federal Court level.
Historically, the courts gave deference to administrative bodies to interpret the laws from which they derive their authority, which means the courts often sought to ensure that final administrative decisions were “reasonable.” The SCC determined, however, that courts must have deference to determine the “correctness” of administrative decisions – not just in the decision themselves, but the reasons provided by that tribunal.
Groupe TVA’s appeal argues as much: “The presumption of deference applicable to the exercise of interpretation of its enabling law by the administrative body must be rejected,” it said, adding that the jurisdiction question should fall within the standard of correctness, or the domain of the courts.
