Supreme Court to hear Bell’s Super Bowl appeal starting Tuesday
OTTAWA – This week, the Supreme Court of Canada will hear a case that our readers are familiar with, but there’s a whole lot else going on of which you may not be aware.
Bell Media has, of course, appealed the CRTC decision which prevented the company from demanding simultaneous substitution during the Super Bowl, which the Federal Court of Appeal upheld in late 2017. Then-Commission chair Jean-Pierre Blais said back in 2015 that the full game experience was a must for Canadians, and that included the American advertising, not Bell’s Canadian ads.
In our judicial system, it is expected that cases with similar facts produce similar outcomes. Of course, no two cases are identical so there are no easy templates and the talent of the judges is to determine how that set of facts fit in the available tests.
However, what lies in the balance here is actually beyond Super Bowl advertising, because the court will combine this appeal with another to hear about and deliberate on how much the Court should defer to expert/administrative bodies such as the CRTC when making its own rulings.
As Ann Chaplin, from the Department of Justice wrote in 2009, “The Supreme Court of Canada’s decision in Dunsmuir was intended to rationalize and simplify its approach to standards of judicial review of administrative decisions. However, the various judgments in the case actually suggest a subtle but important shift in the focus of the Court’s review of the ‘reasonableness’ of government decisions. Two contrary and potentially conflicting approaches to selecting and applying the standard of review are reflected.
So, when two decisions of the FCA were appealed in the same timeline (each with a different outcome), the Supreme Court allowed the two appeals to be heard together and gave reasons for allowing the appeal which is very rare:
“The appeal will be heard with Bell Canada et al. v. Attorney General of Canada (37896), and with Minister of Citizenship and Immigration v. Alexander Vavilov (37748). The Court is of the view that these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, and subsequent cases. To that end, the appellants and respondent are invited to address the question of standard of review in their written and oral submissions on the appeal.”
The second case relates to the child of Russian spies (seriously!) born in Canada, who claims he should be given Canadian citizenship because he was born in Canada. The citizenship registrar had determined he was not eligible. The Federal Court upheld the registrar’s decision while the FCA reversed it but with a stern dissent.
Part of what Bell argues in its request for permission to appeal was: “If the CRTC can use s. 9 (1) (h) to require that BDUs televising the Canadian Super Bowl program on one channel also televise the U.S. Super Bowl program on another, there is nothing to stop it from relying on s.9(1)(h) to order that any program it chooses be televised. It could require that Good Morning America be televised in place of Heartland because it deems the former more entertaining than the latter. Or it could order that portions of The Simpsons be deleted because it disagrees with their political content.”
“Parliament did not give the CRTC the Orwellian power to reach down into the specific shows that broadcasters create, and decide which ones are worthy of retransmission to the public.” – Bell Canada
The Bell submission went on: “In fact, in supporting the CRTC order, the Attorney General took the position that, ‘provided the Commission acts in furtherance of its objects, there are no statutory limits placed on the types of terms and conditions contemplated by paragraph 9(1)(h)’, and that the CRTC ‘is the “sole judge of what is necessary or appropriate’ absent bad faith. Indeed, in oral argument, the Attorney General conceded that the necessary effect of the CRTC’s interpretation of its jurisdiction is that s. 9(1)(h) permits the CRTC to dictate which individual programs Canadians are permitted to see.”
Further, continues Bell: “Parliament decided that broadcasters and BDUs—not a subordinate government agency like the CRTC—should have the right to determine the identity and content of the individual programs that are broadcast to Canadians, subject to general standards the CRTC sets for all programming en masse. Parliament did not give the CRTC the Orwellian power to reach down into the specific shows that broadcasters create, and decide which ones are worthy of retransmission to the public.”
Plus, added Bell “Other appellate courts are also split on the issue, with some (e.g., Ontario, Manitoba, New Brunswick) accepting the margin of appreciation approach, and others (e.g., Alberta, British Columbia and Quebec) rejecting it.”
“The jurisprudence of this Court is similarly divided. In some cases, this Court has ‘described reasonableness as a flexible deferential standard that varies with the context and the nature of the impugned administrative act,’ so much so that in certain situations, the ‘range of reasonable outcomes’… will necessarily be limited to a single reasonable interpretation—and the administrative decision maker must adopt it.’ The proposed appeal provides this Court with an excellent opportunity to clarify the law and resolve issues fundamental to both constitutional and administrative law that have led to repeated conflicts among appellate courts.”
Furthermore, in May 2018, the Honourable David Stratas, a FCA judge who wrote the decision in the Vavilov case shortly before wrote the following in Administrative Law Matters, a judicial blog: “This is not to besmirch in any way Dunmsuir’s dedicated, accomplished authors, the strong court that concurred with them, or the talented jurists that decided the cases after Dunsmuir. Rather, the flaw in Dunsmuir and its progeny is the same one that has undermined this area of law in Canada at all levels of court for decades: the tendency of individual judges to decree operational rules based on their individual views rather than on fundamental, settled doctrine and well-accepted principles. Dunsmuir and its progeny are like a great skyscraper—but one built on foundations of sand, not bedrock. Thus, it is no surprise that questions of inconsistency and incoherence concerning Dunsmuir and its progeny swirl about—and as the years go by, with increasing ferocity. This article tries to make the case for why the Supreme Court should revisit Dunsmuir.”
WHAT ALL THIS MEANS is that this a very important case and the nine judges are set to determine a new and improved standard of review – and some will enjoy the debate as arcane it is. The Court had probably set its mind on reviewing Dunsmuir and the opportunity arose when those two appeals were filed. We can probably infer that had the recent FCA decision on CRTC Wholesale Code been issued earlier it would have been rolled into this case.
Finally, one must realize that case this is not about the Super Bowl or birthright. And it is not whether the CRTC or the Registrar of Citizenship interpreted their home statutes in an adequate way.
And whether the court rules in favour of Bell or not, the decision will be moot since the United States Mexico Canada Agreement (USMCA) includes a clause that specifies this very CRTC decision saying that Canada shall rescind it … Once the Accord is ratified, that is, and the legislative and other legal paperwork is complete.
