Final order was issued on basis of incorrect interpretation of scope of authority conferred on CRTC

Administrative Law – Standard of Review - Correctness

Super Bowl had been broadcast in Canada for over 40 years subject to Canada's “simultaneous substitution” regime, set out in Broadcasting Act regulations, under which Canadian commercials aired on both Canadian and American channels during broadcast. Canadian Radio-television and Telecommunications Commission (CRTC) decided to exclude Super Bowl from simultaneous substitution regime as matter of public interest (final decision) and issued final order under s. 9(1)(h) of Broadcasting Act to implement decision. Broadcaster and copyright holder (appellants) appealed under Act, alleging CRTC lacked jurisdiction to make order. Federal Court of Appeal applied reasonableness standard of review and dismissed appeal. Appellants appealed to Supreme Court of Canada. Appeals were heard together with another case (Vavilov) to consider law applicable to judicial review of administrative decisions. Appeal allowed. Applicable standard of review must be determined in accordance with framework in Vavilov. As appellants challenged CRTC’s decision and final order by way of statutory appeal mechanism in s. 31(2) of Act, appellate standards of review applied. Because issues in appeals raised legal questions that went directly to limits of CRTC’s statutory grant of power, and plainly fell within scope of statutory appeal mechanism, applicable standard was correctness. Applying correctness standard, final order was issued on basis of incorrect interpretation of scope of authority conferred on CRTC under s. 9(1)(h). Because CRTC did not purport to mandate carriage of any particular programming services, but instead sought to add condition that must be fulfilled should television service provider carry Canadian station that broadcasts Super Bowl, issuance of order was not within scope of its delegated power under s. 9(1)(h) of Act. Order and decision quashed.

Bell Canada v. Canada (Attorney General) (2019), 2019 CarswellNat 7881, 2019 CarswellNat 7882, 2019 SCC 66, 2019 CSC 66, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2017), 2017 CarswellNat 7338, 2017 CarswellNat 9838, 2017 FCA 249, 2017 CAF 249, David G. Near J.A., Wyman W. Webb J.A., and Mary J.L. Gleason J.A. (F.C.A.).

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