As it turns out, the issue most familiar to Canadians — whether Super Bowl aficionados will have access to U.S. commercials during the game’s broadcast — could well be moot if and when the Canada-United States-Mexico free trade agreement is ratified.
“The trade agreement deals with this issue and, when ratified, will override the high court’s decision on the issue because it allows for simultaneous substitution of commercials,” says Jay Kerr-Wilson, the Ottawa-based co-leader of Fasken Martineau Dumoulin LLP’s technology, media and telecommunications practice.
But the court’s pronouncements could have momentous and long-lasting impact on two more arcane issues: the jurisdictional reach of the Canadian Radio-Television and Telecommunications Commission and the scope of administrative review in Canada.
“The Supreme Court seems to re-consider the standard of review every 10 or 15 years, and it looks like that’s what the court is going to do in this case,” says Steve Mason, the Toronto-based head of McCarthy Tétrault LLP’s national intellectual property litigation group and lead counsel for the National Football League, an appellant in the proceedings.
The case stems from the CRTC’s order banning broadcasters from swapping out U.S. ads for Canadian ones during the Super Bowl, a practice known as simultaneous substitution and one that has allowed Canadian broadcasters to replace U.S. commercials with Canadian ones for more than 40 years. The upshot is that, since 2017, when the order took effect, Canadians watching the Super Bowl on Canadian stations would see Canadian ads, while those watching on American stations could see the U.S. ads.
Although the Federal Court of Appeal upheld the CRTC’s order and its fate it still in the SCC’s hands, CUSMA negotiators bound the federal government to scrapping the rule when the treaty is ratified. Just when and even whether the treaty will be ratified is unclear, however, particularly since the Democrats controlling the U.S. House of Representatives have been demanding significant changes as conditions of approval.
As the CRTC has refused to rescind its order in the face of CUSMA, Canadians who want to will be watching those American ads for at least one more year — unless, of course, the SCC voids the CRTC order before then. Indeed, the FCA left little doubt that it might not have reached the same conclusion as the CRTC.
“The appellants argue, and I agree, that there is a certain irony that legislation that has the protection of the Canadian broadcasting industry and its employees as one of its important objectives is being used to allow for the broadcasting of American ads during the Super Bowl to the apparent detriment of the Canadian industry and its employees,” wrote Justice David Near for a bench composed also of justices Wyman Webb and Mary Gleeson.
Still, Near noted, it was Parliament’s intention that the CRTC was best equipped to balance the “numerous disparate objectives” in the Broadcasting Act.
Near also dismissed the NFL’s argument that the CRTC order was in conflict with the Copyright Act.
Andrew Bernstein, the Toronto-based practice group leader for Torys LLP’s litigation department and lead counsel for Bell Media in the proceedings, is — speaking solely on his own behalf and not that of his client — also of the view that the SCC will not focus its decision on copyright law.
“The case appears as if it will turn on the provision of the Broadcasting Act,” he says. “And if the court finds that the CRTC had the necessary jurisdiction under that statute, it won’t allow copyright law to get in the way of its decision.”
Still, Kerr-Wilson concedes that the outcome in the SCC isn’t crystal clear.
“There could be something in the case that concerns or preoccupies the court,” he says.
Tom Curry, managing partner at Lenczner Slaght Royce Smith Griffin LLP, a litigation boutique in Toronto, and lead counsel for the Association of Canadian Advertisers and the Alliance of Canadian Cinema Television and Radio Artists, interveners in the case, says the “overarching issue” in the case is the standard of administrative review.
“I’ve never been a fan of the exaggerated importance we’ve placed on the standard of review because I think it’s a policy issue that probably came out of a time when the appellate courts were having a hard time managing appeals from administrative tribunals,” he says.
“So I favour a more robust approach to judicial intervention even as I acknowledge that we live in an administrative state that’s seen a tremendous explosion of regulatory schemes involving tribunals with very specific expertise that judges may not be better placed to overrule.”