BELL CANADA V. CANADA (ATTORNEY GENERAL), 2019 SCC 66

CRTC deciding that simultaneous substitution regime does not apply to Super Bowl broadcast and Canadians, therefore, can view American commercials aired during Super Bowl is overturned.

The Canadian radio-television provided a new vision to the Canadians by allowing the US broadcast to feature American commercials. The order was issued under section 9(1)(h) of the Broadcasting Act.

Bell Canada then filed an appeal against the CRTC’s decision along with the NFL according to the procedure laid under section 31(2) of the Broadcasting Act.

Their major contention was that the CRTC did not have any jurisdiction to issue such orders pursuant to 9(1)(h) of the Broadcasting Act as such orders only affect the programming service and not any individual program such as “the Super Bowl”.

The Federal Court of Appeal further dismissed the appeal stating that CRTC was reasonable. After the dismissal, the NFL and Bell approached for appeal the Supreme Court of Canada.

The SCC heard the case in connection with Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 case where the Supreme Court had determined the appropriate standards to review different cases. It was released with the Bell case. The Vavilov case talked about the correctness of the statute which was brought under for the review purpose as an important observation to determine appropriate standards. In Bell, the appeal was brought before the court on questions of law or jurisdiction to the Federal Court of Appeal. Therefore, the SCC stated that the applicable standard will therefore be correctness.

Further SCC in an attempt to answer whether the CRTC was correct in concluding that it had the authority to issue the order that prohibited simultaneous substitution for the Super Bowl, the court considered the effect and nature of that order. The court observed that the television service provider who distributes both American and Canadian television stations airing the Super Bowl is required to do so without altering their respective signals.

Further, while determining whether the CRTC exercised its power correctly or not, the SCC observed that it was not required to decide the particular question in Bell and the NFL. The Court further clarified that the authority of the CRTC under the act is limited to issuing such orders through which the television service providers carry certain specific channels. But they are not authorized to include any such orders that have broad powers on conditions that lay outside the context of a mandatory carriage order.

There were some contentions which supported CRTC and said that the plain meaning of the provision depicts that through the primary power delegated to the CRTC mandates that television service providers carry specific programming services as part of their cable or satellite offerings but the secondary powers relate to the imposition of certain terms and conditions on such mandatory carriage orders.

Therefore, the Supreme Court of Canada ruled out that providing such orders is outside the scope of CRCTC and its authority and therefore the case was overturned.