Reference Re Broadcasting Act, (2012) 437 N.R. 124 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 13, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 437 N.R. 124 (SCC);2012 SCC 68

Ref. Re Broadcasting Act (2012), 437 N.R. 124 (SCC)

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Temp. Cite: [2012] N.R. TBEd. DE.012

In The Matter Of the Broadcasting Act, S.C. 1991, c. 11;

And In The Matter Of the Canadian Radio-television and Telecommunications Commission's Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168;

And In The Matter Of an Application by way of a Reference to the Federal Court of Appeal pursuant to sections 18.3(1) and 28(2) of the Federal Courts Act, R.S.C. 1985, c. F-7.

Cogeco Cable Inc., Rogers Communications Inc., TELUS Communications Company and Shaw Communications Inc. (appellants) v. Bell Media Inc. (formerly CTV Globemedia Inc.), V Interactions Inc., Newfoundland Broadcasting Co. Ltd. and Canwest Television Limited Partnership (respondents) and Canadian Radio-television and Telecommunications Commission (intervenor)

(34231: 2012 SCC 68; 2012 CSC 68)

Indexed As: Reference Re Broadcasting Act

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.

December 13, 2012.

Summary:

Under current CRTC policy, broadcast distribution undertakings (BDUs) (Bell Canada, Rogers, Telus, etc.) picked up over-the-air signals of private local television stations and retransmitted them to their subscribers for a fee. In exchange, the CRTC required the BDUs to provide certain benefits to the local stations: preferential channel placement, simultaneous distribution, percentage of gross revenues to the local programming improvement fund, etc. Due to changes in the broadcasting business environment (satellite television, specialty channels, alternative media platforms), the CRTC proposed a "value for signal" regime, which would give local stations the right to negotiate with BDUs for compensation for the right to retransmit that station's signals and the right to preclude retransmission if a contract was not concluded. The BDUs did not challenge the soundness of the CRTC's policy analysis, its understanding of the relevant facts, its decision that the value for signal regime was required to meet the policy objectives of s. 3(1) of the Broadcasting Act, or the reasonableness of the value for signal regime. However, the BDUs argued that the CRTC lacked statutory authority to implement a value for signal regime because it would conflict with their rights under the Copyright Act by giving local stations the right to block a BDU from retransmitting that station's signal absent a concluded contract for compensation. Section 31(2) of the Copyright Act provided that a BDU retransmitting a local station's signal did not infringe copyright (s. 21) if the retransmission was lawful under the Broadcasting Act, complied with any regulations under s. 31(3)(b) of the Copyright Act, and the signal was simultaneously retransmitted without alteration. Because s. 31(2) contemplated a royalty for the retransmission of distant signals only, a local station with a local signal had no right to demand a royalty from a BDU. The CRTC referred the following question to the court: "Is the Commission empowered, pursuant to its mandate under the Broadcasting Act, to establish a regime to enable private local television stations to choose to negotiate with broadcasting distribution undertakings a fair value in exchange for the distribution of the programming services broadcast by those local television stations?".

The Federal Court of Appeal, per Sharlow, J.A. (Layden-Stevenson, J.A., concurring), in a judgment reported (2011), 413 N.R. 312, answering yes to the question, held that "Parliament has ranked the objectives of Canada's broadcasting policy ahead of those statutory retransmission rights. ... it is open to the Commission to adopt a regulation or a licensing condition that would oblige a BDU to pay money to a private local television station for the right to retransmit its signals, provided the Commission determines that the imposition of such an obligation is required to meet the objectives of Canada's broadcasting policy as stated in subsection 3(1) of the Broadcasting Act". Nadon, J.A., dissenting, held that "the value for signal regime ... is ultra vires the powers of the [CRTC] ... the regime conflicts with Parliament's clear statement in paragraph 31(2)(d) of the Copyright Act that royalties must be paid only for the retransmission of distant signals and not for the retransmission of local signals". The BDUs appealed.

The Supreme Court of Canada, Abella, Cromwell, Deschamps and Karakatsanis, JJ., dissenting, allowed the appeal and held that the proposed value for signal regime was ultra vires the CRTC. The court stated that "first, a contextual reading of the provisions of the Broadcasting Act themselves reveals that they were not meant to authorize the CRTC to create exclusive rights for broadcasters to control the exploitation of their signals or works by retransmission. Second, the proposed regime would conflict with specific provisions enacted by Parliament in the Copyright Act".

Administrative Law - Topic 9058

Boards and tribunals - Jurisdiction of particular boards and tribunals - Canadian Radio- Television and Telecommunications Commission - At issue was the source of the CRTC's jurisdiction under the Broadcasting Act - The Supreme Court of Canada stated that "policy statements, such as the declaration of Canadian broadcasting policy found in s. 3(1) of the Broadcasting Act, are not jurisdiction-conferring provisions. They describe the objectives of Parliament in enacting the legislation and, thus, they circumscribe the discretion granted to a subordinate legislative body ... As such, declarations of policy cannot serve to extend the powers of the subordinate body to spheres not granted by Parliament in jurisdiction-conferring provisions. In my opinion, to find jurisdiction, it was not sufficient for the CRTC to refer in insolation to policy objectives in s. 3 and deem that the proposed value for signal regime would be beneficial for the achievement of those objectives. ... It is therefore necessary to consider the jurisdiction granted to the CRTC under ss. 9 and 10 of the Act to attach conditions to licences and to make regulations" - The court rejected the argument that "establishing any link, however tenuous, between a proposed regulation and a policy objective in s. 3 of the Act if a sufficient test for conferring jurisdiction on the CRTC" - See paragraphs 22 to 23, 25.

Administrative Law - Topic 9058

Boards and tribunals - Jurisdiction of particular boards and tribunals - Canadian Radio- Television and Telecommunications Commission - [See Telecommunications - Topic 6475 ].

Copyright - Topic 3429

Fees, charges or royalties - Determination of - Retransmission of distant or local radio and television signals - [See Telecommunications - Topic 6475 ].

Statutes - Topic 1607

Interpretation - Extrinsic aids - General - Policy of legislation - [See first Administrative Law - Topic 9058 ].

Statutes - Topic 2617

Interpretation - Interpretation of words and phrases - Modern rule (incl interpretation by context) - Harmonization of statutes (incl. presumption of coherence) - The Supreme Court of Canada stated that "as Parliament is presumed to intend 'harmony, coherence and consistency between statutes dealing with the same subject matter ... two provisions applying to the same facts will be given effect in accordance with their terms as long as they do not conflict. Accordingly, where multiple interpretations of a provision are possible, the presumption of coherence requires that the two statutes be read together so as to avoid conflict" - See paragraphs 37 to 38.

Telecommunications - Topic 6461

Commissions - Regulation - Powers - General - At issue was the powers of the Canadian Radio-Television and Telecommunications Commission (CRTC) to impose licensing conditions and make regulations - The Supreme Court of Canada stated that "in seeking to achieve its objectives, the CRTC may not choose means that either operationally conflict with specific provisions of the Broadcasting Act, the Radiocommunication Act, the Telecommunications Act or the Copyright Act, or which would be incompatible with the purposes of those Acts" - See paragraph 45.

Telecommunications - Topic 6475

Commissions - Regulation - Powers - Retransmission of distant and local television signals - Under current CRTC policy, broadcast distribution undertakings (BDUs) (Bell Canada, Rogers, Telus, etc.) picked up over-the-air signals of private local television stations and retransmitted them to their subscribers for a fee - In exchange, the CRTC required the BDUs to provide certain benefits to the local stations: preferential channel placement, simultaneous distribution, percentage of gross revenues to the local programming improvement fund, etc. - Due to changes in the broadcasting business environment (satellite television, specialty channels, alternative media platforms), the CRTC proposed a "value for signal" regime, which would give local stations the right to negotiate with BDUs for compensation for the right to retransmit that station's signals and the right to preclude retransmission if a contract was not concluded - The BDUs did not challenge the soundness of the CRTC's policy analysis, its understanding of the relevant facts, its decision that the value for signal regime was required to meet the policy objectives of s. 3(1) of the Broadcasting Act, or the reasonableness of the value for signal regime - However, the BDUs argued that the CRTC lacked statutory authority to implement a value for signal regime because it would conflict with their rights under the Copyright Act by giving local stations the right to block a BDU from retransmitting that station's signal absent a concluded contract for compensation - Section 31(2) of the Copyright Act provided that a BDU retransmitting a local station's signal did not infringe copyright (s. 21) if the retransmission was lawful under the Broadcasting Act, complied with any regulations under s. 31(3)(b) of the Copyright Act, and the signal was simultaneously retransmitted without alteration - Because s. 31(2) contemplated a royalty for the retransmission of distant signals only, a local station with a local signal had no right to demand a royalty from a BDU - The CRTC referred the matter of the CRTC's statutory jurisdiction to the court - The Supreme Court of Canada held that the proposed value for signal regime was ultra vires the CRTC - The court stated that "first, a contextual reading of the provisions of the Broadcasting Act themselves reveals that they were not meant to authorize the CRTC to create exclusive rights for broadcasters to control the exploitation of their signals or works by retransmission. Second, the proposed regime would conflict with specific provisions enacted by Parliament in the Copyright Act" - The value for signal regime conflicted with s. 21(1) of the Copyright Act by granting broadcasters a retransmission authorization right against BDUs that was withheld by the scheme of the Copyright Act - Further, the regime conflicted with the retransmission rights in works under s. 31 of the Copyright Act - See paragraphs 1 to 83.

Cases Noticed:

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 2].

Broadcasting Act, Re, [2012] 1 S.C.R. 142; 428 N.R. 190, refd to. [para. 18].

Barrie Public Utilities et al. v. Canadian Cable Television Association et al., [2003] 1 S.C.R. 476; 304 N.R. 1; 2003 SCC 28, refd to. [para. 23].

R. v. CKOY Ltd., [1979] 1 S.C.R. 2; 24 N.R. 254, refd to. [para. 24].

Consumers Association of Canada et al. v. Canadian Radio-Television and Telecommunications Commission et al., [2009] 2 S.C.R. 764; 392 N.R. 323; 2009 SCC 40, refd to. [para. 26].

Bell Canada v. Bell Aliant Regional Communications - see Consumers Association of Canada et al. v. Canadian Radio-Television and Telecommunications Commission et al.

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243, refd to. [para. 29].

R. v. Nova Scotia Pharmaceutical Society (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 29].

Théberge v. Galerie d'Art du Petit Champlain inc. et al., [2002] 2 S.C.R. 336; 285 N.R. 267, refd to. [para. 36].

Mattel Inc. v. 3894207 Canada Inc. et al., [2006] 1 S.C.R. 772; 348 N.R. 340; 2006 SCC 22, refd to. [para. 36].

R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867; 275 N.R. 201; 206 Nfld. & P.E.I.R. 304; 618 A.P.R. 304, refd to. [para. 37].

Pointe-Claire (Ville) v. Syndicat des employées et l'employés professionnels -les det de bureau, section locale 57 (S.E.P.B. - U.I.E.P.B. - C.T.C. - F.T.Q.), [1997] 1 S.C.R. 1015; 211 N.R. 1, refd to. [para. 38].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 39].

Toronto Railway Co. v. Paget (1909), 42 S.C.R. 488, refd to. [para. 41].

Lévis (City) v. Fraternité des policiers de Lévis Inc. et al., [2007] 1 S.C.R. 591; 359 N.R. 199, refd to. [para. 42].

Burrardview Neighbourhood Association v. Vancouver (City) et al., [2007] 2 S.C.R. 86; 362 N.R. 208; 241 B.C.A.C. 1; 399 W.A.C. 1; 2007 SCC 23, refd to. [para. 44].

British Columbia (Attorney General) v. Lafarge Canada Inc. - see Burrardview Neighbourhood Association v. Vancouver (City) et al.

CCH Canadian Ltd. et al. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339; 317 N.R. 107; 2004 SCC 13, refd to. [para. 64].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers et al., [2004] 2 S.C.R. 427; 322 N.R. 306, refd to. [para. 65].

Tele-Mobile Co. v. Ontario et al., [2008] 1 S.C.R. 305; 372 N.R. 157; 235 O.A.C. 369; 2008 SCC 12, refd to. [para. 73].

Canadian Admiral Corp. v. Rediffusion Inc., [1954[ Ex. C.R. 382, refd to. [para. 74].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al. (2012), 432 N.R. 1; 2012 SCC 35, refd to. [para. 74].

C.T.V. Television Network Ltd. v. Canadian Radio-Television and Telecommunications Commission, [1982] 1 S.C.R. 530; 41 N.R. 271, refd to. [para. 93].

Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commission et al., [1978] 2 S.C.R. 141; 18 N.R. 181, refd to. [para. 99].

Telecommunications Workers Union v. Canadian Radio-Television and Telecommunications Commission et al., [2004] 2 F.C.R. 3; 312 N.R. 128; 2003 FCA 381, refd to. [para. 100].

Association for Public Broadcasting in British Columbia v. Canadian Radio-Television and Telecommunications Commission et al., [1981] 1 F.C. 524; 33 N.R. 570 (F.C.A.), refd to. [para. 100].

Société Radio-Canada v. Métromédia CMR Montréal Inc. et al. (1999), 254 N.R. 266 (F.C.A.), refd to. [para. 100].

Canadian Broadcasting League v. Canadian Radio-television and Telecommunications Commission and Kingston Cable T.V. Ltd., [1983] 1 F.C. 182; 43 N.R. 77 (F.C.A.), affd. [1985] 1 S.C.R. 174; 57 N.R. 76, refd to. [para. 101].

Canadian Motion Picture Distributors Association et al. v. Partners of Viewer's Choice Canada et al. (1996), 199 N.R. 167; 137 D.L.R.(4th) 561 (F.C.A.), refd to. [para. 104].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 118].

Statutes Noticed:

Broadcasting Act, S.C. 1991, c. 11, sect. 2(1), sect. 3(1)(e), sect. 3(1)(f), sect. 3(1)(g), sect. 3(1)(s), sect. 3(1)(t), sect. 3(2), sect. 5, sect. 9(1), sect. 10(1) [Appendix].

Copyright Act, R.S.C. 1985, c. C-42, sect. 2, sect. 3(1)(f), sect. 3(1.1), sect. 21(1), sect. 31 [Appendix].

Authors and Works Noticed:

Canada, House of Commons, Subcommittee on the Revision of Copyright of the Standing Committee on Communications and Culture, A Charter of Rights for Creators: Report of the Subcommittee on the Revision of Copyright (1985), p. 80 [para. 75].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 11].

Handa, Sunny, et al., Communications Law in Canada (2000) (2012 looseleaf), §3.21 [para. 34].

McKeeown, John S., Fox on Canadian Law of Copyright and Industrial Designs (4th Ed. 2009) (2012 looseleaf release 3), para. 15.3(a) [para. 36].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 325, 326 [para. 37]; 342, 343 [para. 78]; 388, 390, 391 [para. 32]; 411 [para. 12].

Vaver, David, Intellectual Property Law (2nd Ed. 2011), pp. 34, 56 [para. 36].

Counsel:

Neil Finkelstein, Steven G. Mason and Daniel G.C. Glover, for the appellant, Cogeco Cable Inc.;

Gerald L. Kerr-Wilson and Ariel Thomas, for the appellants, Rogers Communications Inc. and TELUS Communications Company;

Kent E. Thomson, James Doris and Sarah Weingarten, for the appellant, Shaw Communications Inc.;

Benjamin Zarnett, Robert Malcomson, Peter Ruby and Julie Rosenthal, for the respondents, Bell Media Inc. (formerly CTV Globemedia Inc.), Newfoundland Broadcasting Co. Ltd. and V Interactions Inc.;

No one appeared for the respondent, Canwest Television Limited Partnership;

No one appeared for the intervenor.

Solicitors of Record:

McCarthy Tétrault, Toronto, Ontario, for the appellant, Cogeco Cable Inc.;

Fasken Martineau DuMoulin, Ottawa, Ontario, for the appellants, Rogers Communications Inc. and TELUS Communications Company;

Davies Ward Phillips & Vineberg, Toronto, Ontario, for the appellant, Shaw Communications Inc.;

Goodmans, Toronto, Ontario, for the respondents, Bell Media Inc. (formerly CTV Globemedia Inc.), Newfoundland Broadcasting Co. Ltd. and V Interactions Inc.;

Paliare, Roland, Rosenberg, Rothstein, Toronto, Ontario, for the respondent, Canwest Television Limited Partnership;

Canadian Radio-television and Telecommunications Commission, Gatineau, Quebec, for the intervenor.

This appeal was heard on April 17, 2012, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada.

On December 13, 2012, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Rothstein, J. (McLachlin, C.J.C., LeBel, Fish and Moldaver, JJ., concurring) - see paragraphs 1 to 83;

Abella and Cromwell, JJ. (Deschamps and Karakatsanis, JJ., concurring), dissenting - see paragraphs 84 to 126.