Law Times

LAW TIMES 8 COVERING ONTARIO'S LEGAL SCENE | APRIL 29, 2019 www.lawtimesnews.com BY JULIUS MELNITZER For Law Times T here's considerable iro- ny surrounding the Su- preme Court of Can- ada's decision in Bell Canada v. Attorney General of Canada, expected later this year. As it turns out, the issue most familiar to Canadians — wheth- er 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 rati- fied, will override the high court's decision on the issue be- cause it allows for simultaneous substitution of commercials," says Jay Kerr-Wilson, the Otta- wa-based co-leader of Fasken Martineau Dumoulin LLP's technology, media and telecom- munications practice. But the court's pronounce- ments could have momentous and long-lasting impact on two more arcane issues: the juris- dictional reach of the Canadian Radio-Television and Telecom- munications Commission and the scope of administrative re- view 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 prop- erty litigation group and lead counsel for the National Foot- ball League, an appellant in the proceedings. The case stems from the CRTC's order banning broad- casters from swapping out U.S. ads for Canadian ones dur- ing the Super Bowl, a practice known as simultaneous sub- stitution and one that has al- lowed 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 Su- per 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 negotia- tors bound the federal govern- ment 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 Demo- crats controlling the U.S. House of Representatives have been de- manding 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 import- ant 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 Parlia- ment'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 conf lict with the Copyright Act. Andrew Bernstein, the To- ronto-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 juris- diction 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 pre- occupies the court," he says. Tom Curry, managing part- ner 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 tri- bunals," he says. "So I favour a more robust approach to judicial interven- tion 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 over- rule." LT SCC decision could focus on CRTC's reach Anti-spam laws are overreaching, say lawyers P. 10 CRTC's power to regu- late certain contracts narrowed P. 11 IT/Telecommunications Law FOCUS 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. Jay Kerr-Wilson Jay Kerr-Wilson says the outcome of Bell Canada v. Attorney General of Canada at the SCC isn't crystal clear. Focus on Containing contact information for more than 66,000 judges and legal professionals, more than 27,500 law offices, government departments, and law related offices, canadianlawlist.com attracts more than 325,000 page views a month and 110,000 unique visitors! Book your enhanced listing today! Contact Colleen Austin at 416.649.9327 or colleen.austin@tr.com www.canadianlawlist.com Enhance your presence on Canada's largest legal directory AVAILABLE ONLINE AND IN PRINT Untitled-2 1 2018-09-05 10:17 AM

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