NeCathy Térout LLP 0 Box 43, Sule 300 Toronto Qominien Bank Tower Toronto ON MK 1E8 canaca Tet 416-962-1812 Fax: 416-068-0073 carth' Wal Finkttsn Eetrautt” Ecirupataes Eee March 3, 2015 Danielle May-Cuconato, Secretary-General, Canadian Radio-television and Telecommunications Commission, Les Terrasses de la Chaudiare Central Building 1 Promenade du Portage Gatineau, Quebec J8X 481 Dear Mr. Traversy, Re Broadcasting Notice of Consultation CRTC 2016-37 ‘SUMMARY 1. We act as counsel for the NFL, and are pleased to provide the following comments on behalf of the National Football League, NFL International LLC and NFL Productions LLC (collectively, the "NFL”) 2. This letter is a response to the proceeding initiated by Broadcasting Notice of Consultation CRTC 2016-37 (the "Notice’).’ The NFL wishes to be considered as a party in this proceeding and to participate in any future public hearing as a party in person. 3. In Broadcasting Regulatory Policy CRTC 2015-25 (the "Decision") the Canadian Radio-television and Telecommunications Commission (the "CRTC") decided to prohibit simultaneous substitution by regulation for the Super Bowl broadcast, starting in 2017, The CRTC subsequently reversed course, and decided to implement the prohibition through a licensing order under s. 9(1)(h) of the Broadcasting Act rather than by regulation pursuant to s, 10. The CRTC confirmed that subsequent decision in Broadcasting Regulatory Policy CRTC 2015-513 (the "Proposed Order’),’ when it made the Simultaneous Programming Service * Cal for comments on a proposed distribution order prohibiting simultaneous substitution for the Super Bow! ~ Broadcasting Notice of Consultation CRTC 2016-7, 3 February 2016, * Measures to address issues related to simultaneous substitution ~ Broadcasting Regulatory Policy CRTC 2016-26, 29 January 2016. 5 Reguiations to implement policy determinations regarding simultaneous substitution in the Lets Talk TV proceeding ~ Broadcasting Regulatory Policy CRTC 2016-513, 19 November 2018ar’ etrault Deletion and Substitution Regulations (the "Sim Sub Regulations’). The Notice contains the form of the Proposed Order. 4, The NFL is currently challenging both the Decision and the Proposed Order before the Federal Court of Appeal. Copies of the public facta filed by the NFL in the appeal proceedings are appended to these submissions, and they should be considered to be part of these submissions. 5, The NFL submits that the CRTC should not adopt the form of the Proposed Order in the Notice, or any other order excluding the Super Bowl from the simultaneous substitution regime. As explained more fully in the NFL's facta appended hereto, the Broadcasting Act read in its full context does not give the CRTC jurisdiction to discriminate against the Super Bowl by ‘exempting it alone from the Sim Sub Regulations under s. 9(1)(h). 6. First, s. 9(1)(h) of the Broadcasting Act only authorizes the CRTC to make orders regarding the carriage of “programming services’, ie., the entire broadcasting output of a programming undertaking. The Super Bowl is not a programming service, but rather a program, ie., an individual television show; the CRTC has no jurisdiction to issue a carriage order regarding an individual television show. Only the Governor in Council has authority to issue carriage orders in relation to individual programs under the Broadcasting Act, pursuant to 8. 26(2) 7. Second, the Proposed Order and Notice would exempt the Super Bowl from the Sim Sub Regulations in their entirety. However, s. 9(4) of the Broadcasting Act only permits the CRTC to exempt licensees from its regulations, i.e., broadcasting undertakings rather than individual programs, and only then to the extent it does so for entire licensee classes. Exempting an individual program like the Super Bow! from the Sim Sub Regulations would go well beyond this limited power. 8 Third, the broader legislative context of the Broadcasting Act, which includes the Copyright Act and Canada's international treaty commitments such as the Canada United States Free Trade Agreement and the North American Free Trade Agreement, demonstrate that Parliament intended simultaneous substitution to be administered as a general regime applicable to all U.S. programs, not as an ad hoc regime in which individual programs are exempted from the entire Sim Sub Regulations through one-time licensing orders. *8.0.R/2016-240.ca eae 9. The NFL makes these submissions in opposition to the Proposed Order. Yours truly, McCarthy Tétrault LLP Mul Abe Neil Finkelsteinfeeaue” Appendices page 4328 Court File No. FEDERAL COURT OF APPEAL BETWEEN: NATIONAL FOOTBALL LEAGUE, NFL INTERNATIONAL LLC and NFL, PRODUCTIONS LLC Moving Parties -and~ ATTORNEY GENERAL OF CANADA Respondent MEMORANDUM OF FACT AND LAW OF THE MOVING PARTIES, NATIONAL FOOTBALL LEAGUE, NEL INTERNATIONAL LLC and NFL PRODUCTIONS LLC MOTION UNDER SECTION 31(2) OF THE BROADCASTING ACT AND RULE 352 OF THE FEDERAL COURTS RULES McCarthy Tétrault LLP Suite 5300, TD Bank Tower 66 Wellington Street West Toronto ON MSK 1E6 Neil Finkelstein Brandon Kain Richard Lizius ‘Tel: 416-362-1812 Fax: 416-868-0673 Solicitors for the Moving Parties, National Football League, NEL International LLC and NFL Productions LLCPART I— STATEMENT OF FAC’ PART II— POINTS IN ISSUE PART II— SUBMISSIONS 10... L 2. 3, 4. PART IV— ORDER SOUGHT 329 TABLE OF CONTENTS Overview The Facts... ‘The NFL and the Super Bowl. The Simultaneous Substitution Regim ‘The Old CRTC Decision and the Existing Appeal ‘The NEL Is a Party to the New CRTC Decision E, The CRTC’s New Decision... ope 9 The Test for Leave to Appeal ‘The New Decision is Ulira Vires the Jurisdiction of the CRTC .. ‘The Standard of Review is Correctness... This Motion Is Not Premature...ol PART I—STATEMENT OF FACTS. 1. Overview 1. This is a motion by the National Football League (the “League”), NFL International LLC (*NFLI”) and NFL Productions LLC (“Produetions”, collectively with the League and NFLI, the “NFL”) for leave to appeal Broadcasting Regulatory Policy CRTC 2015-513 (the “New Decision”)' made by the Canadian Radio-television and Telecommunications Commission (the “CRTC”) on November 19, 2015. 2. TheNew Decision concems the CRTC’s simultaneous substitution regime, which allows a television station with Canadian rights to a U.S. program to require that cable and satellite companies insert and distribute its signal in place of U.S. network signals, then showing the same program, so that only the Canadian advertising is televised in Canada, Simultaneous substitution is critical to the U.S. program owner's ability to ‘monetize its copyrights in Canada, because without it the Canadian television station cannot maximize ratings and associated advertising revenues for the program. 3. Inthe New Decision, the CRTC held that the Super Bowl ~a single program, owned by a single copyright holder, and broadcast in Canada by a single exclusive licensee ~ should be exempted from simultaneous substitution by a licensing order made under s. 9(1)(h) of the Broadcasting Act. 4, Previously, the CRTC had decided that the Super Bowl should be exempted through an amendment to its regulations under s, 10 of the Broadcasting Act. This Court granted Bell Canada and Bell Media Inc. (“Bell”) leave to appeal that earlier decision, and allowed the NFL to intervene. However, the New Decision renders the statutory authority issues in the existing appeal moot, because it seeks 10 recast the CRTC’s decision to exempt the Super Bowl as a licensing order rather than as a regulatory amendment, although Bell’s concerns about issues such as procedural fairness in the existing appeal are not moot, \pagultions to implement policy determincion regarding simultane subsituton inthe Lt’ Talk TY proceeding ~Brondeasting Regulatory Potiy CRTC 2015-513, 19 November 2015, Motion Record ("MIR"), Tab 2. 3302 5. As a result of the CRTC issuing the decision, this appeal is timely and appropriate. There are two (2) independent reasons why this Court should grant leave to bring the new appeal. 6. First, this Court correctly determined that the CRTC’s decision to exempt the Super Bowl from simultaneous substitution is an important issue when it granted leave in the existing appeal. The new appeal raises the same issue as the existing one, albeit now with a different basis having been asserted for the CRTC’s alleged jurisdiction. 7. Second, there is clearly an arguable case that the CRTC exceeded its jurisdiction in deciding to exempt the Super Bow! from simultaneous substitution through a licensing, order under, 9(1)(h). ‘That provision only permits the CRTC to issue orders relating to the carriage of “programming services” by cable and satellite licensees, ie. entire television channels such as TSN or CTV. It does not allow the CRTC to issue orders regarding the carriage of an individual program that forms part of the broadcasting ‘output of sucha programming service. The CRTC’s attempt to do so here is contrary to the text, context and legislative history of the Broadcasting Act, and undermines the simultaneous substitution provisions in both the Copyright Act and Canada’s international treaty obligations. 8. The NFL therefore requests that leave to appeal be granted. 9, Further, for the reasons identified below, the NFL should be allowed to participate in the new appeal as a full party. 10. Finally, the NFL requests that this appeal be consolidated with Bell’s appeal of the New Decision, and that it be expedited and heard together with the existing appeal 2. The Faets A. The NFL and the Super Bowl 11. The League is an unincorporated association of 32 separately owned member clubs, each of which operates a professional football team. NFLI and Productions are 331“3 Delaware limited liability companies whose operations include producing, licensing and distributing programming relating to NFL football.” 12, Each year, the League and its member clubs present a season of football games, followed by playofTs, which culminate in a championship game between the NFC and ‘AFC Champions called the “Super Bowl”. ‘The Super Bowl is the culmination or “crescendo” to the rest of the NFL season, and the most watched television program in Canada in 2015." 13. ‘The NFL possesses valuable copyrights in relation to television productions ofits, ‘games, including the Super Bowl, and valuable rights as the exclusive licensor of those copyrights in Canada.* 14, For intemational markets, including Canada, NFLI enters into programming license agreements in whieh the licensee acquires rights to televise productions of games in the relevant territory. The NFL and Bell are currently parties to a licensing agreement. that gives Bell the exclusive right to televise the Super Bowl on CTV for a term extending beyond 2017.° B. The Simultaneous Substitution Regime 15. Simultaneous substitution enables a television station with Canadian rights to US. programming to require that cable and satellite companies (“Broadcasting Distribution Undertakings”, or “BDUs”) temporarily replace incoming U.S. network signals showing the same program at the same time with the station's own signal, so that Jocal viewers receive only the Canadian advertising rather than U.S. advertising.” 16. The purpose is to allow the Canadian station to maximize its local audience share and the higher advertising revenues that goes with it by ensuring that its Canadian Jomissions ofthe NFL, 11 Septemiber 2015, 1, Atwell Affidavit, Ex. 0, MR, Tab 3 > Submissions ofthe NFL, 11 September 2015, 42-5, Atwell Affidavit, Ex. G, MR, Tab 3 4 Measures to adress issues related to simitanoussubstttion ~ Broadcasting Regulatory Policy CRTC 2015-25, 29 January 2015, $27, Atwell Afdavit,Ex.D, MR, Teb 3; Submissions ofthe NFL, 11 September 2015, 136 nd 38, ‘Aewell Affidavit, Ex'G, MR, Tab 3, 5 Aeasures to address isues related to siatancous substitution Brondcesting Regulatory Policy CRTC 2015-25, 29 Janaary 2015, $2, Atwell Affidavit, Ex. D, MR, Tab 3. © Notice of Hearing: Let’s Talk TV ~ Broscasting Notice of Consultation CRTC 2014-190, 24 April 2014, $8455, [Atwell Affidavit, Bx. B, MR, Tab 3; Measure o acavest issues related to simeaneous substtation~ Broadcasting ‘Regulatory Policy CRTC 2015-25, 29 January 2015, $2, Atwell Affidavit, Ex. D, MR, Tab 3. 332advertising is available to all local viewers of applicable U.S, programming such as the Super Bowl, The stations use part of those revenues to defray the costs of paying U.S. copyright holders for the exclusive Canadian broadcasting rights to their programming.’ 17. Simultaneous substitution is particularly important for live event programs like the Super Bowl game, which is a valuable source of advertising revenue for television stations, Such programs are more likely to be watched in real time with commercial interruptions than other types of programming, and there is no meaningful alternative to them on other distribution platforms.® 18, Since its implementation in the 1970s, simultaneous substitution has created significant benefits for the Canadian broadcasting system, and it continues to do so today.” 19. Prior to the New Decision, the simultaneous substitution regime existed under ss. 38 and 51 of the Broadcasting Distribution Regulations, which the CRTC made pursuant to s. 10(1) of the Broadcasting Act.'° C. The Old CRTC Decision and the Existing Appeal 20. In2014, the CRTC announced that it would hold a public hearing as part of its Let's Talk TV proceedings.'' It proposed to address several issues at the hearing, including the continued viability of the simultaneous substitution regime.” 21. ‘The CRTC gave no notice that it was considering the elimination of simultaneous substitution for the Super Bowl alone, The only options the CRTC identified were " Notte of Hearing: Let's Talk TY ~Brosdeasting Notice of Consultation CRTC 2014-190, 24 April 2014, 54 and 5 ‘Avwell Affidavit, Ex.B, MR, Tab 3; Measures to address lsues related to simultaneous substitution Broadcast Rogulatory Policy CRTC 2015-25, 29 Jauary 2015, 2 and 13, MR, Teb 3, Atwell Affidavit, Ex. D. * Measures to adress issues related to sinmultancous substitution ~ Broadcasting Regulatory Policy CRTC 2015-28, 29 January 2015, 415, Atwell Affidevit, Ex. D, MR, Tab 3. ° Measures to address issues related to sinnllaneous substiution ~ Broadcasting Reguletory Policy CRTC 2015-25, 29 January 2015,414, Abvell Affidavit, Ex.D, MR, Tab 3 © Yeasures to address issues relosed to simultaneous substitution Broadcasting Regulatory Policy CRTC2015-25, 29 January 2015, 42, Atwell Adidavit, Ex, D, MR, Tab 3; Broadcasting Distribution Regiatons, SO.R/97-SS8. Notice of Hearing: Let's Falk TV ~ Broadcasting Notice of Consultsion CRTC 2014-190, 24 April 2014, Atwell Affidavit,Ex.B,MR, Tab3, The publichearing was part of Phase 3 of the Let's Talk TY proceedings, which included ‘formal review ofthe issaes identified in Phases 1 and 2 (where the CRTC solicited input from Canadians used to publish roport and interactive questionnaire). The Ler’ Talk TV proceedings were initiated in Let's Talk T¥: A ‘Conversation vith Canadians about the future of television ~ Broadeasting Notice of Invitation CRTC 2013-863, 24 October 2013, Atwell Affidavit, Ex. A, MR, Tab 3. Notice of Hearing: Let's Talk TV~ Brosdeasting Notie of Consultation CRTC 2014-190, 24 April 2014, $54-61, Atwell Affidavit, EX. B, MR, Tab. 333prohibiting simultaneous substitution altogether, or prohibiting it for live event programming, and the Super Bow! was referenced merely to illustrate the outcomes those options would produce:"? Canadians would be able to watch all non-Canadian programs, such as the Option A: BDUs would no longer be permitted to perform simultaneous eabeiition ‘Super Bowl, with American 4, Simultaneous Z advertisements. Option B: BDUs would not_¢, be perttted to perform Cenfdians would be she to simultaneous substitution for Nath He event including live event programming 074g events Aue! (ea eaprting event or an Super Bowl, with American reeds oen advertisements, 22. Asaconsequence of this lack of notice that its program would be singled out for disparate treatment, the NFL could not make submissions to the CRTC in relation to that original proceeding. 23. On January 29, 2015, the CRTC released its simultaneous substitution decision from the hearing (the “Old Decision”).'* 24. While the CRTC held that simultaneous substitution should continue for all other USS. programs cartied by local over-the-air television stations like CTV, including sporting events," it prohibited simultaneous substitution for a single program, the Super Bowl: Further, given the comments received from Canadians and the fact that the non-Canadian advertising produced for the Super Bow! is an integral part of this special event programming, distributors will no longer be allowed to perform simultaneous substitution for this event as of the end of the 2016 NFL season (ic. for the January/February 2017 broadcast of the Super Bowl). The Commission notes that the existing commercial arrangement relating to the broadcast of this event by CTV provided for its broadcast over a number of ” Notice of Hearing: Let's Talk TV ~ Broadcasting Notice of Consultation CRTC 2014-190-3, 21 August 2014, ‘Appendix, Item 4 Atwell Afidavit, Ex, C, MR, Tab 3. See also Notice of Hearing: Les Talk TV ~ Broadcasting Noties of Consultation CRTC 2014-190, 24 April 2014, §S4.61, 497, Atwell Affidavit, Ex. B, MR, Tab3 CE}rors ‘made in performing substtations and other problems as well as special events, such asthe Super Bow, have made {simultaneous substtation) an iritant to consumers anda fequent source of complains") Aeasures to address issues related to simltancous substitution ~ Broadcasting Regulatory Policy CRTC 2015-25, 29 January 2015, Abell Affidavit, x. D, MR, Te 3. 5S Aeasures to address issues related to simultaneous substitution ~ Broadcasting Regulatory Policy CRTC 2015-25, 29 January 2015, 418-20 and footnote 2, Atwell Affidavit, Ex.D, MR, Tab 3. 334years. However, the Commission is of the view thatthe above determination will provide the broadcaster with a reasonable period to make adjustments. The broadcaster may choose to waive simultaneous substitution for 2016 if it considers that viewer and subscriber demand warrants such a measure. '® 25. The CRTC did not identify any jurisdictional basis under the Broadcasting Act for its spontaneous decision to single out the Super Bowl from all other U.S. programs and prohibit simultaneous substitution for it alone. However, the CRTC implicitly took the view that it had the power to exclude the Super Bow! through regulations made under s. 10 of the Broadcasting Act: ‘The Commission will issue a notice of consultation seeking comment on the text of proposed amendments to the Regulations required to enact the policy changes in this decision.” 26. This Court granted Bell leave to appeal the Old Decision under s. 31(2) of the Broadcasting Act on May 5, 2015'* (the “Existing Appeal”),”” and the NFL was given leave to intervene.” The parties to the Existing Appeal have since filed all of their materials and a hearing date will be set in the period of March 14-16, 2016.”' D. The NFL Is a Party to the New CRTC Decision 27. The NFL argued in its motion for leave to intervene in the Existing Appeal, which was granted on August 7, 2015, that the CRTC lacked jurisdiction to make regulations that discriminate against the Super Bowl. Following the NFL’s submissions being filed the original proceeding the CRTC issued a new deci seemingly seeking to circumvent the flaws with its Old Decision, exempting the Super Bowl game from simultaneous substitution. "6 Measures to address issues related o simultaneous substitution — Broadcasting Regulstory Policy CRTC 2015-28, 29 January 2015, $22, Atwell Affidevit,Ex.D, MR, Tab 3, emphasis added. Measures toaddressisswes related o simultaneous substiion ~ Broadcasting Regultory Policy CRTC 2015-25, 29 January 2015, $23, Atwell Affidavit, Ex. , MR, Tab 3, emphasis added, Onder of Ryer, Sort and Rennie H.A, dated 5 May 2015, Atvell Affidavit, Ex, H, MR, Tab 3 Bell Canada aed Bell Media Inc v. Aiorney General of Conade, et al Cour File No. A-231-18. Bell fled its Notice of Appeal on May 11, 2015: see Notice of Appeal dated 11 May 2015, Atwell Affidavit, Ex. J, MR, Tab 3 ® Onder of Near JA, dated 7 August 2015, Atwell Affidevit, Ex. fy MR, Tab 3, 2 Appellants? Memorandum of Fact and Law, dated 12 August 2075, Atwell Affidavit, Ex. Ly MR, Teb 3: ‘Memorandum of Fect and Law of the Intervene, dated 10 September 2015, Atwell Afidavit, x. M, MR, Tab ‘Memorandum of Fact and Law of the Respondent, dated 22 September 2015, Atwell Affidavit, Fx. N, MR, Tab 3 Appellants’ Reply Memorandum of Fact and Lav, dated 23 October 2015, Atwell Affidavit, Ex. 0,1MR, Tab 3. The pats also fled a 12-volume appeal book on July 13, 2015, 2 Written Representations of the Moving Parties, National Football League, NFL Intemational LLC and NPL Productions LLG, filed 13 July 2015, Atwell ATidavi, Ex. K, MR, Teb 3 33528. The CRTC hastily established a new proceeding, which culminated in the New Decision from which the NFL seeks leave to appeal: The Commission indicated that it would use its regulations to implement the policy decisions in Broadcasting Regulatory Policy 2015-25 ina general sense. ‘The Commission provides more details in Broadcasting Notice of Consultation 2015-330, issued today, where it proposes revisions to the relevant regulations, However, to implement the removal of simultaneous substitution for the Super Bowl, the Commission intends to use its authority pursuant to section 9(1)(h) of the Act to impose conditions regarding the carriage of programming services. 29. For the purposes of this new proceeding, and concurrently with the above announcement, the CRTC solicited fresh comments regarding the new simultaneous substitution regulations it proposed to make" The NFL, now having notice of the CRTC’s intention to single out the Super Bowl by promulgating an order pursuant to s. 9(1)(h) of the Broadcasting Act to prohibit simultaneous substitution for the Super Bowl alone, filed an 18-page submission objecting to the CRTC’s purported jurisdiction to do as 30. On November 19, 2015, the CRTC released the New Decision,” introduced the Simultaneous Programming Service Deletion and Substitution in which it sp Regulations (the “Sim Sub Regulations”) that came into force on December 1, 2015. 31. Given the foregoing procedural history, the NFL is full party to the CRTC’s new proceeding leading to the New Decision, and thus full party to these appeal proceedings pursuant to s. 31(2) of the Broadcasting Act."* Hence the NFL is bringing this motion for leave to appeal. Simultaneous substtation errors ~ Broadcasting Information Bulletin CRTC 2015-329, 23 July 2015, $17, Atwell Aiidavit, Ex. E, MR, Tab 3, emphasis added. ‘See also Call for comments on the proposed Simultaneous Programing Service Deletion ond Substitution Regulations ~ Brosdcasting Notice of Consaltation CRTC 2015-330, 2 Joly 2015, 1B, Atwell Affidavit, Ex. F, MR, Teb 3. 2 Call for comments on the propased Simultaneous Programming Service Deletion and Substitution Regulations Broadcasting Notice of Consilfation CRTC 2015-330, 23 July 2015, Atvell Atfidavit, Ex. F, MR, Tab 3. ® submissions ofthe NFL, 11 September 2015, Atwell Afiavit,Ex.G, MR, Tab 3 2§ Regulations to iyplement policy determination regarding simultaneous substitution inthe Le's Talk TV proceeding ~ Broadcasting Regulatory Policy CRTC 2015-513, 19 Novernber 2015, MR, Tab 2 » §.0,R.2015-240; Simultaneous Programming Service Deletion and Substitution Regulations, (2018) C. Ga, I, Vol. 149, No, 24, 2786, 8.0.R/2015-240, BOA Tab 8 3 friunv, Conada (A..), (1999) BCH. No, 1917 (C.A), $2.23, 25-26 and 29, lave to appeal refused, 2000 CCarswelINat 2391, BOA, Tab 1 336-8- E, The CRTC’s New Decision 32, The New Decision, coupled with the Sim Sub Regulations, renders the statutory authority issues in the Existing Appeal moot, although Bell’s concerns about issues such as procedural faimess in the Existing Appeal are not moot. The New Decision and Sim ‘Sub Regulations attempt to recast the CRTC’s decision to exempt the Super Bow from simultaneous substitution as a Heensing order under s. 9(1)(h) of the Broadcasting Act, as opposed to a regulation made under s. 10, which is the focus of the Existing Appeal. ‘No exception for the Super Bowl exi exempted from them now by a licensing order under s, 9(1)(h). Indeed, the CRTC specifically acknowledged that it lacked the jurisdiction to exempt the Super Bowl in the in the Sim Sub Regulations, so it may only be ‘Sim Sub Regulations themselves under s. 10 given the NFL’s submissions: _.[Gliven that the NFL presented the arguments, the Commission notes that section 9(1)(h) of the Act grants it broad powers to impose any terms and conditions on the distribution of programming services it deems necessary in furtherance of its objects. Unlike the Commission’s powers to make regulations pursuant to section 10 of the Act, which are to be exercised with respect to all licensees or classes of licensees, section 9 of the Act relates to conditions which are by definition targeted, including conditions of licence specific to the circumstances of individual licensees.” 33. Atthe same time, the New Decision raises a mew issue that is the subject of this, motion for leave to appeal, whether the CRTC has jurisdiction under s. 9(1)(h) of the Broadcasting Act to discriminate against the Super Bowl by exempting it from the Sint ‘Sub Regulations through a licensing order. 34, In finding that it had this jurisdiction, the CRTC considered but rejected the submissions of the NFL to the contrary: The National Football League (NFL) and the Small Market Independent Television Stations Coalition (SMITS) also commented on the Commission’s statement of intent to issue an order under section 9(1)(h) of the Act to implement its policy not to permit simultaneous substitution for the Super Bow! beginning in the 2016-2017 season. They submitted that the Commission lacks the jurisdiction to make any order excluding the Super Bowl from the simultaneous substitution regime. According to the SMITS, such exclusion would cause material losses to almost half of its English-language member » Regulations to implement policy determinations regarding simultaneous substiion inthe Let's Talk TY proceeding = Broadessting Regulatory Policy CRTC 2015-513, 19 November 2015, (26, MR, Tab 2, emphasis added 33735, “9. stations as they currently run CTV programming. The NFL further argued that the proposed order would conflict with Canada’s treaty obligations under the North American Free Trade Agreement (NAFTA) and the Canada-United States Free Trade Agreement (CUSFTA). With respect to the Super Bowl, the Commission notes that it has not yet issued an order excluding the Super Bow! from the simultaneous substitution regime and that therefore the NFL’s arguments are premature. However, given that the NFL presented the arguments, the Commission notes that section 9(1)(h) of the Act grants it broad powers to impose any terms and conditions on the distribution of programming services it deems necessary in furtherance of its objects. Unlike the Commission’s powers to make regulations pursuant to section 10 of the Act, which are to be exercised with respect to all licensees or classes of licensees, section 9 of the Act relates to conditions which are by definition targeted, including conditions of licence specific to the circumstances of individual licensees. The Commission's policy determination to no longer allow simultaneous substitution for the Super Bow! was based on evidence before the Commission with respect to the unique way in which Canadians perceive the Super Bowl and the role of advertisements in this program. This evidence is relevant to the policy objectives of the Act, irrespective of the commercial or legal intent of the NFL or its programming partners with respect to the event, its integration into a full season and its commercials. The Commission’s policy determinations with respect to simultaneous substitution do not affect the NFL's copyright in its ‘programs. At most, these determinations will have a secondary impact on the value of the program as they may affect the ability of Canadian broadcasters to obtain revenues from broadcasting this program. Finally, with respect to the arguments regarding NAFTA and CUSFTA, the Commission disagrees with the position stated by the NFL. Trade agreements do not apply directly to the Commission without specific legislation to this effect. Even if these treaties were directly applicable to the Commission, they would simply provide Canada with the ability to create a simultaneous substitution regime; they would in no way limit the Commission's ability to modify or even remove this regime. ? It is submitted for the reasons which follow that leave to appeal the New Decision should be granted to the NFL. 36, PART I—POINTS IN ISSUE, ‘This motion raises the principal issue of whether there is an arguable case that the ‘New Decision is ultra vires the CRTC based on its lack of jurisdiction to discriminate » Regulations to implemen policy determinations regarding snultaneous substitution inthe Let's Talk TV proceeding —Broadeasting Regulatory Policy CRTC 2015-513, 19 November 2015, 20 and 26-28, MR, Tab 2, emphasis aed. 338-10- against the Super Bowl by exempting it alone from the Sin Sub Regulations. Secondarily, an issue is raised about the appropriate standard of review. PART [1I—SUBMISSIONS 1. The Test for Leave to Appeal 37. The test for leave under s, 31(2) of the Broadcasting Act only requires that the NFL establish an “arguable case” that the New Decision is based on an error of law or jurisdiction." 2. The New Decision is Ulira Vires the Jurisdiction of the CRTC 38. The CRTCrel for its jurisdiction herein on s, 9(1)(h) of the Broadcasting Act, which provides that: 9. (1) Subject to this Part, the Commission may, in furtherance of its objects, (h) require any licensee who is authorized to carry on a distribution undertaking to carry, on such terms and conditions as the Commission deems appropriate, programming services specified by the Commission. [emphasis added] 39. This provision gives the CRTC jurisdiction in relation to the carriage of “programming services”, not to discriminate against a single program, such as the Super Bowl, by ordering that it alone among all U.S. programs be exempted from the Simm Sub Regulations. 40. The starting point is that “the power to regulate does not include the power to ‘iminate”.® As the Supreme Court of Canada said in Katz Group: .. Regulatory distinctions must be authorised by statute, either expressly or by necessary implication (Forget v. Quebec (Attorney General), [1988] 28.C.R.90, at pp. 106-7). 41. This applies to a regulator's exercise of discretion under statutory licensing provisions like s. 9(1)(h).** As this Court stated in Purcell: 2 CKLN Raalo Ine.» Canada (4.G.), 2011 FCA 135 a paras. 5-6, BOA, Tab 27 ® Forget». Quebec (A.G), [1988] 2 S.C.R. 90 at 105, BOA, Tab 31 Kate Group Canada Ine ¥. Ontaro (Health and Long-Term Care), [2013] 3 S.C. 810, $47, BOA, Tab 36, emphasis ded. of. Moresby Explorers Lid. Canada (A.G),[2008) 2 ¥.CR. 341, 19-22, eave t appeal efsed, [2007] §C.C.A. No. 536, BOA, Tab 38, where this Cour eld that this principle does not apply t0 the regulation= ‘making authority ofthe Governor in Council. The Moresby decision has now been overtaken by Kats and this case ‘concerns the discretionary authority ofthe CRT, not the regulation-making authority ofthe Governor in Coun 339oe ...[T]he law simply does not recognize the concept of an unfettered discretion, All discretionary powers must be exercised "according to law" and, therefore, are subject to certain implied limitations. ... Counsel for the Commission acknowledges that a discretionary power must be exercised "judicially". I take that term to mean that ifit can be established that the decision-maker acted in bad faith or for an improper purpose or motive, took into account an irrelevant factor or ignored a relevant factor or acted in a discriminatory manner, then any decision which flows from the exercise of a discretionary power will be set aside... 42. Thus, in Bingo Enterprises, the Manitoba Court of Appeal granted a declaration that a statutory gaming board acted unlawfally by prohibiting licensees from carrying on business at the premises of the respondent alone: The essence of the case is that the Lotteries Board must not discriminate against Bingo Enterprises Limited. ... |[T}here was an illegal exercise of administrative discretion aimed at injuring the plaintiff. The condition that licensees or prospective licensees not use Bingo Enterprises' premises on Nairn Avenue appears unrelated to any broad policy being followed by the Lotteries Board, It might not be unlawful for the Lotteries Board to adopt a policy to issue fewer licences, or to restrict licences to a particular size of accommodation, or to issue licences in a manner which prevents the establishment of a gaming house, or to issue licences in a manner which will assure that bingos will be held in areas which will service certain geographic portions of the city or province. Within such general policy ‘guidelines the plaintiff would have to funetion in common with all others seeking ‘to host such events, What the Lotteries Board cannot do is single out Bingo Enterprises for special treatment that is not related to any such general policy.” 43. For three (3) reasons, the Broadcasting Act read in its full context does not authorize the CRTC to discriminate against the Super Bowl by exempting it alone from the Sim Sub Regulations under s. 9(1\(h). DP, Jones and A'S do Villars, Principles af Administrative Law, 6° ed (Toronto: Carswell, 2014) at 202, BOA, ‘TabS7 [T]he presumption ogaist discrimination should n theory also apply to allforms of discretionary powers, and not just legislative ones"), DJ.M. Brown and 3M. Evans, Judicial Review of Administrative Action in Canada, Tooseleaf (Toronto: Carswel, 2013), Vol. Il atp. 15-44, pera. 15-2441, BOA, Tab 58 (“Although most commonly encountered in connestion with challenger to municipal bylaws, dseriminatory administrative acon, unless ‘authorized can resulta udiciatintervention”) of. Moresby Explorers Ld. Canada (A.G.), [2008]2F.C.R. 341, ‘23,27, 30,36 and 38, leave appeal refised, (2007) S.C.C.A. No, $36, BOA, Tab 38, and ohnson Canyon Co . Garda (4.6), 2009 FCA 219, 417 and 28-30, BOA, Tab 35, whore this Court held thet discriminatory exercises of ‘administrative dieretion were authorized by the enabling legislation. >5 Canada (.G,)v, Purell, [1996] 1 F.C. 644 (C.A), $11 (QL), BOA, Tab 22. 8 Bingo Enterprises Lt». Manitoba (Loterles& Gaming Licensing Board), 1983 CerswelMan 127(C.A},S2and 3, BOA, Tab 20, emphasis added, 340-12- 44, First, s. 9(1)(h) permits the CRTC to issue BDU licensing orders relating to the carriage of “programming services”, not individual programs. A “program” is defined in s. 2(1) as follows: 2. (1) In this Act, “program” means sounds or visual images, or a combination of sounds and visual images, that are intended to inform, enlighten or entertain, but does not include visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text; [emphasis added} 45. Programs are thus the indi \dual shows or productions that ate transmitted through broadcasting: 2. (1) In this Act, “broadcasting” means any transmission of programs, whelher or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place; [emphasis added] 46. By contrast, a “programming service” is not an individual show, but is the entire broadcasting output of a programming undertaking —in the nature ofa television channel such as CTV or TSN ~ that is licensed to a BDU for retransmission to the public, This Court has used the term in that sense repeatedly."” In Country Music Television, for instance, Pratte J.A, stated: The appellant is an American company which produces in the United States of America a country music video television program service, known as "Country ‘Music Television" (CMT), which it transmits, via satelite, to cable televis » Cathay International Television In. ¥. CRTC, 1987 CarswellNat 919 (F.C.A.), $3 {The Respondent approved an application by Chinevision fora licence to ety on a network forthe distibuion of a matlonat speciality 0 vice consisting of predominantly Chineserlanguage programming, to be distributed to cable {clevision afliiates ona discretionary user-pey basis"), BOA, Tab 26; FidBotran Lie Nestar Communications Ie., 2004 FCA 299, 16 ('Netstar offers broadcasting undertakings ove sports programming services: RDS in French ‘and TSNin English’), BOA, Tab 48. See also: VIC Promiuoy Television v. Levin [1999] FC3, No. 652(T.D.),%8 CAmong the programming services the Plaintiff offers is Superchannel, which is described as 9 premium tommercialfige service which includes movies and spetal events"), BOA, Tab 49; Inerbax Promotion Corp.» 9012-4314 Québec Ie. (Pippo Chub), 2003 FC 1254, 4 and 27 ("The event was broadcast live on the English and French language Conadian paypersview programming services, Indigo and Viewers" Choice... ESPN 2 had ‘already entered nto "package deals for trading content" with TSN and RDS (ovo Canadian specaly programming setoigg)"), BOA, Teb315. Iti tae that In Reference re Broadcasting Regulatory Policy CRTC 2010-167 and ‘Groadeosting Order CRTC 2010-168, (2012] 3S.C.R. 489,11, 7-8, 52, 60,69, BOA, Teb 44, the Court refered. the “programing services” broadeastby local television stations, but aca television stations simply the brosdeasting undertaking that ansmit he class of programming which mey be named ater itasa television channel, like CTV. 341nig systems located in the United States, Canada, Europe and Asia. Since 1984, the Canadian cable television distribution undertakings have been authorized by the CRTC to transmit that programming service. On April 2 of that year, she CRTC announced that it had decided (0 allow, on certain conditions, the cable undertakings to carry certain non-Canadian programming services which it considered not to be competitive with Canadian services. A list of those services, which included CMT, was published at the same time .. Among the applications to be considered at that public hearing were five applications for a licence to offer a country music video programming service similar to CMT. ...** 47. This definition of a “programming service” follows from the Broadeasting Act itself. Section 3(1)(t) refers to the “programming” that is “provided by” a “programming service”, and identifies what that programming should “include”: 3.(2) It is hereby declared as the broadcasting policy for Canada that (©) the programming provided by alternative television programming services should (ii) cater to tastes and interests not adequately provided for by the programming provided for mass audiences, and include programming devoted to culture and the arts... [emphasis added 48, Similarly, s. 3(1)(O(i) uses the term “programming service” interchangeably with a television “station” or channel: 3. (I) It is hereby declared as the broadcasting policy for Canada that (® distribution undertakings (i should give priority to the carriage of Canadian programming services and, in particular, to the carriage of focal Canadian stations, [emphasis added] % Country Music Television, Ine. v. Canada (CRTC), (1994) F.CI. No, 1957 (CA), $3 and 6, BOA, Tab 2Semphasis added, » See also Canada, Department of Communications, Canadian Volces, Canadian Choices: A New Broadeasting Polley for Canada (Ota: Minister of Supply and Services Canada, 1988) 2133-35, BOA, Tab (sting in relation to what is now 5.3} that “ibe Goverment is strongly committed to the creation of an alternative ‘programming service in English... This new service will need continuing finanial input, and the Government frends that this support be provided by... the provision tothe sersice of programming that has been financed by government (eg, NFB productions)", 34)-14- 49, And ss. 3(1)(t)i) and (ii) differentiate between the individual “programming” or shows that BDUs deliver to consumers, and the “programming services” that BDUs carry as whole channels under license agreements with broadcasting undertakings: 3. (1) It is hereby declared as the broadcasting policy for Canada that (0) distribution undertakings should provide efficient delivery of programming at affordable rates, using the most effective technologies available at reasonable cost, (iii) should, where programming services are supplied to them by broadcasting undertakings pursuant to contractual arrangements, provide reasonable terms for the carriage,... [emphasis added 50, The CRTC itself recognized that “programming services” do mot refer to individual programs in Star Choice, where it held that a “programming service” under s. 7 of the Broadcasting Distribution Regulations refers only to the entire output of an undertaking, not merely a part of it: The position of Star Choice that it has the authority to distribute, on its omnibus channels, particular programs taken from programming services distributed on other channels is based, in part, on an interpretation of the word "program" in the definition of "programming service” [in the Broadcasting Distribution Regulations] to the effect that a programming service consists solely of a program, in the colloquial sense - that is, a television show. ‘The Commission considers that it is incorrect to interpret this definition to mean that a programming service is only a single television show, or only a particular show broadcast at a given time, The Act, in section 3(1)(9(V, equates "programming services" 1o Canadian stations, that is, the entire broadcasting output of an undertaking. A similar use is found in section 3(1)(9(ii). Further, the Commission notes that section 33(2) of the Interpretation Act states that, in any statute or regulation, "Words in the singular include the plural, and ‘words in the plural include the singular." Accordingly, the Commission considers that "programming service," depending upon the context in which it is used, may be taken to include all programs, i.e. the entire output transmitted by the operator of a programming undertaking for reception by the public. “Programming service" is used in the same sense in section 6 of the Regulations, which requires BDUs to distribute a majority of Canadian programming services, and in section 17, which describes programming services that must be distributed, as well as in many other sections of the Regulations. Likewise, the 343-15- Commission considers that the context in which the term "programming service" is used in section 7 makes it clear that the term refers to the entire ‘output of an undertaking, and not part of it.” 51. Asin Star Choice, s. 9(1}(h) makes clear that the CRTC does not have the power to issue licensing orders regarding the carriage of individual programs by BDUs. 52, Were it otherwise, Parliament would not have used the term “programming services” ins, 9(1)(h). Instead, Parliament would have expressly permitted the CRTC to make BDU licensing orders respecting the carriage of “any program”. 53, Indeed, the Broadcasting Act refers to individual programs elsewhere,"* and allows the Governor in Council to issue carriage orders regarding “any program” in . 26(2): [26](2) Where the Governor in Council deems the broadcast of any program to be of urgent importance to Canadians generally or to persons resident in any area of Canada, the Governor in Council may, by order, direct the Commission to issue a notice to licensees throughout Canada or throughout any area of Canada, of any class specified in the order, requiring the licensees to broadcast the program in accordance with the order, and licensees to whom any such notice is addressed shall comply with the notice. [emphasis added) 54. The Governor in Council was given this power in s. 26(2) despite industry be li the Broadcasting Act, which only permit it to issue juests that .d to matters of a “general nature”,"? as with ss. 7(1) and 27(1) of req 8 sctions of “general application 55. Unlike the Governor in Counc in s, 26(2), s. 9(1)(h) only allows the CRTC to make BDU licensing orders regarding the carriage of “programming services”. This follows a pattern of language found in other Broadeasting Act provisions that confer carriage jurisdiction upon the CRTC: 9. (1) Subject to this Part, the Commission may, in furtherance of its objects, © Disrtbution of omnibus high defiiton channel by Star Cholee and Cancom~Broncasting Decision CRTC 2005- 195, 12 May 2005, (25-28, BOA, Tab 12, emphasis arlded. “ see, eg, 5, 21), defining a “temporary network operation” fo mean “a network operation with respect t0 a particular program ora setis of programs tht extends over a period not exceeding sinty days". See also Canada, Department of Communications, The Broadcasting Ac 1988: A Clause-by-Clause Anlysis of Bl! C-136 (Ortava: ‘Department of Communications, 1988), . 21), 3% “temporary network operation”, BOA, Tab $3 (*[T]his efntion permits the CRTC to make use ofa streamlined lensing process for temporary menworks such as those setup, for ‘example, fo cover a championship sporting event ike the World Series) 91 iprary of Parliament, Law and Government Division, Research Services, Clause-By-Clause Sunmary: Bil C-136: An det Respecting Broadcasting and 40 Amend Certain Acts in Relation Thereta and in Relation to ‘Radiocommanications (Ota: Library of Parliament, 1988), s. 25, comments of CHUM Limited, BOA, Tab 60. 344-16- (h) require any licensee who is authorized to carry on a distribution undertaking to carry, on such terms and conditions as the Commission deems appropriate, programming services specified by the Commission. 10. (1) The Commission may, in furtherance of its objects, make regulations (@ respecting the carriage of any foreign or other programming wices by distribution undertakings; ... [emphasis added] 56. The difference between the s. 9(1)(h) “programming services” power given to the CRTC, and the s. 26(2) “program” power given to the Governor in Council, is illustrated by how these powers have been exercised in practice. 57. The Governor in Council has only ever exercised its extraordinary jurisdiction to direct carriage of an individual program once, o require that national television networks carry an address by the Prime Minister on the eve of the Quebee referendum.* By contrast, the CRTC has repeatedly relied on s. 9(1)(h) to require BDUs to carry programming services that occupy entire television channels (¢.g., APTN, CPAC, CBC ‘News Network and CTV News Channel). 58. The limited scope of s. 9(1)(h) is also supported by its legislative history, which frequently referred to entire television channels as “programming services”.‘* Section 9(1)(h) was proposed to fill a gap in the existing legislation, which atthe time only gave the CRTC clear power to regulate the content of the programs produced by broadeasters, not the programming services carried by BDUs: The Act now sets out a legislative basis requiring that individual broadcasters use predominantly Canadian creative and other resources. © onder Directing the CRTC to Isue a Notice tall Television Networks throughout Canada to Brocdeast a Spectat ‘Message from the Prime Minister, PC, 1995-1761, (1995) C. Gzz Il, 2986, S.0.R/95-503, BOA, Tab 7. See also: Canada, Department of Commminictions, The Broadlasting Act 1986: A Clause-by-Clause Analysis of Bill C136 (Ori: Department of Communications, 1988), s. 25@), BOA, Tab $3; PS. Grant and G, Buchanan, Canadian Broadeasting Regulatory Handbook, 2014, 12% ed. (Toronto: MeCarthy Tétault LLP, 2014) st 61, BOA, Tab 61 spplications for mandatory distribution on cable and satellite under section 9(1)(H) ofthe Broadcasting Act — Broadesting Regulatory Policy CRTC 2013-372, 8 August 2013, 3 and 81, BOA, Tab 10, Distbutin of Cadion Category C national news specialty servies ~ Broadcasting Order CRTC 2613-735, 19 December 2013, BOA, Tab 11. See algo PS, Grant and G, Buchanan, Conadlan Broadcasting Regulatory Handbook, 2014, 12" ed, (Toronto: MeCearthy Tétrault LLP, 2014) at 43 and 346-247, BOA, Tab 61. © Caneda, House of Commons Standing Committe on Communications and Culture, Fifteenth Report tothe Howse A Broadeasting Polity for Canada (Hull, Quebec: Queen's Printer for Canada, 1988) a 95-96, 98-101 and 176-177, BOA, Tab 5s. 345-17- However, the Act contains no clear basis for regulating cable and other distribution undertakings. The Committee believes that, just as itis appropriate and important to establish a basis for requiring that licensed broadcasters give priority to carrying Canadian programs, itis at least as important to establish a legislative basis for requiring that distribution undertakings give priority to carrying Canadian stations and networks, The revenues of Canadian broadcasters depend heavily on the carriage regulations that apply to cable. The importance of this aspect of cable policy, particularly as it affects satellite- to-cable television services, was emphasized by the Minister of ‘Communications... [who] noted that “The new generation of satellite delivered services depend on cable distribution to reach theit audiences” and that “cable can act either as a gateway for exciting new services or it can close the door on them.” The Committee shares the Minister's concer. sas The CCTA agreed that... it makes sense for the CRTC to require that cable operators not carry foreign satellite-to-cable services such as Home Box Office or ESPN if there is a licensed Canadian equivalent. ‘The Committee believes it is important that the basis for the CRTC's carriage regulations for all distribution undertakings be stated as clearly as possible in the Act. Moreover, the Act should be drafted so as to provide authorization for the Commission to establish any conditions respecting the carriage of programming services that are necessary to further the objectives of the Act. Recommendation 57 ‘The Commission should continue to have the power to establish conditions respecting the carriage of programming services by distribution undertakings.“ 59, ‘Thus, as the Department of Communications said of s, 9(1)(h) in its 1988 analysis of the draft Broadcasting Act: This clause provides a clear statutory basis for the Commission's priority carriage regulations (already enacted in the Cable Regulations). The 1968 Act ‘was silent on such a power. It would also allow the CRTC to require carriage of a particular service such as, for example, TV-5, a second CBC service, or the alternative programmer.” “ Canada, House of Commons Standing Comittee on Communications and Culture, Sisth Report tothe House: Recommendations fora New Broadcasting Act Hull, Quebee: Queen's Printer for Canada, 1987) a 7-78, OA, Tad St, emphasis added. See also: Canada, House of Commons Standing Commitee on Communications and Culture, Fijteondh Reportto the House: A Broadeasting Policy for Conada (Hull, Quebec: Queen's Prints for Canad, 1988) 182-184 and 217, BOA, Tab 55; Canada, Department of Communications, Government Response tothe Fifteenth Report of the Standing Committee on Communications and Culture: A Broadcasting Policy for Canada (Ottewa: ‘Departinent of Comminications, 1988) a 89, BOA, at Tb 82. * Canada, Deparment of Communications, The Broadcasting Act 1988: A Clause-by-Clause Analysis of Bill C136 ‘Ontawa: Department of Comminieation, 1988), s, 90h), BOA, Tab 53, emphasis add. 346-18- 60. ‘As well, the Department of Communications linked s, 9(1)(h) to “licensed programming services”, which cannot mean individual shows since they are not licensed under the Broadcasting Act: ‘The new Bill provides for a package of measures to ensure that conflicts of interest can be resolved in the public interest and will not be detrimental to the interests of licensed Canadian programming services. The expectations of distribution undertakings in clause 3.1 (q)(iii) [now s. 3(1)(1)(iii)] requires them to provide reasonable access. ... Under clause 9.(1)(h), the CRTC can require carriage of specified services. 61. Second, the s. 9(1)(h) order that the CRTC proposes to issue would exempt the ‘Super Bowl from the Sim Sub Regulations in their entirety. However, s. 9(4) of the Broadeasting Act only permits the CRTC to exempt licensees ~ i.e., broadcasting undertakings rather than individual programs — from its regulations and licensing requirements, and only then to the extent it does so with for entire licensee classes: [9](4) The Commission shall, by order, on such terms and conditions as it deems appropriate, exempt persons who carry on broadcasting undertakings of any class specified in the order from any or all of the requirements of this Part or of a regulation made under this Part where the Commission is satisfied that compliance with those requirements will not contribute in a material manner to the implementation of the broadcasting policy set out in subsection 3(1). [emphasis added} 62. The limited scope of this exemption power is apparent from the legislative history to the Broadcasting Act The power of the CRTC to exempt classes of broadcasting undertakings from the requirement that a licence be obtained should be extended to include broadcasting transmitting undertakings as well as broadcasting receiving undertakings. ...‘? [T]he Commission will have the discretion to exempt classes of broadcasting undertakings from the requirement of holding a licence. canads, Department of Communications, Government Response othe Fifteenth Report ofthe Standing Commitee on Communications and Culture: A Broadcasting Policy for Canada (Ottawa: Departnent of Communications, 1988) ft 27 (end $6 and 90), BOA, Tab 82, emphasis adied. © Cenada, House of Commons Standing Committoe on Communications and Culture, Sisth Report fo the House: Recommendations jor a Now Broadcasting Act (Hall, Quebec: Queen’ s Printer for Canada, 1987) a1 36:25,BOA. Tab 4, emphasis added. % Canada, Department of Comamications, Government Response tothe Fiftenth Report ofthe Staeing Committee ‘on Communications and Culture: A Broadeasting Polley for Canada (Oita: Department of Communications, 1988) ft $8 (and 70, BOA, Tab 82. 347-19- The CRTC is empowered to exempt classes of broadcast services from holding licences.** 63. This is consistent with the legislative purpose behind s. 9 of the Broadcasting Act, Parliament recognized the CRTC’s licensing powers should be expanded, because unlike its regulation-making powers they can be used to discriminate in specific instances. However this was only so that it could “adjust its requirements for each undertaking” and make orders “appropriate to the circumstances of individual licensees”.° The purpose of the CRTC’s s. 9 powers was of to discriminate against a program that licensed undertakings retransmit. 64. Exempting an individual program from the Sim Sub Regulations would go well beyond this ted power and undermine Parliament's intent in enacting s. 9(4). 65. Third, the broader legislative context includes the Copyright Act, which forms part of the same interrelated scheme as the Broadcasting Act and is critical to its interpretation: The Broadcasting Act grants the CRTC wide discretion to implement regulations and issue licences with a view to furthering Canadian broadcasting policy as set out in the Broadcasting Act. However, these powers must be exercised within the statutory framework of the Broadcasting Act, and also the larger framework including interrelated statutes. This scheme includes the Copyright Act... As such, the CRTC, as a subordinate legislative body, cannot enact a regulation or attach conditions to licences under the Broadcasting Act that conflict with provisions of another related statute, Even if jurisdiction for the proposed value for signsl regime could be found within the text of the Broadcasting Act, that would not resolve the question in this reference as the Broadcasting Act is part of a larger statutory scheme that % Canada, Department of Communicetions, Canadian Voices, Canadian Choices: A New Broadcasting Policy for ‘Canada (Otte: Minister of Supply and Services Canada, 1988) at 57, BOA, Tab 51, emphasis added. 5 Government of Canade, Task Foree on Brosdeasting Policy, Report of the Task Force on Broadcasting Policy ‘Ovtawa: Minister of Supply and Services Canada, 1986) at 191, BOA, Tab 59, ® Government of Canada, Task Force on Browdeasting Policy, Report ofthe Task Force on Broadcasting Policy (Ottawa: Minister of Supply and Services Cenada, 1986) at 192 (and 190-191), BOA, Tab $95 Canad, House of ‘Commons Standing Contmitte on Communications and Culture, Sixt Report othe Howse: Recommendations fora New Broadeasting Act (Hull, Qucbee: Queen's Printer for Canada, 1987) at 36:93. BOA, Tab 54. See also: Canada, Fiouse of Commons Standing Committee on Communications and Cultwe, Fifteenth Report to the Howse: A Broadcasting Poliey for Canada (Hull, Quebec: Queen's Printer for Canal, 1988) at 166, BOA, Tab $5; Canad, Department of Communieations, Government Response to the Fifleenth Report ofthe Standing Committee on Communications and Culture: A Broadcasting Palizy for Canada (Otters: Department of Communications, 1988) at 95.96, BOA, Tab $2, In Canada (C.RT.C) % CTY Television Network Ld, [1981] 2 F.C. 248 (C.A.), $8 and 14 (QL), ev" on other grounds, [1982] | SCR. 530 a1 S40, BOA, Tab 23, this Court upheld the CRIC’s ability to Impose icence conditions upon individual lcensees, but not eganst individual programs. 34866. 20+ includes the Copyright Act... Considering that the Broadcasting Act and the Radiocommunication Act are clearly part of the same interconnected statutory scheme, it follows, in my view, that there is a connection between the Broadcasting Act and the Copyright Act as well. The three Acts (plus the Telecommunications Act) are part of an interrelated scheme, Although the Acts have different aims, their subject matters will clearly overlap in places. As Parliament is presumed to intend “harmony, coherence, and consistency between statutes dealing with the same subject matter”... tvo provisions applying to the same facts will be given effect in accordance with their terms so long as they do not conflict. Accordingly, where multiple interpretations of a provision are possible, the presumption of coherence requires that the two statutes be read together so as to avoid conflict. In addition... as it would be impermissible for the CRTC, a subordinate legislative body, to implement subordinate legislation in conflict with another ‘Act of Parliament, the open-ended jurisdiction-conferring provisions of the Broadcasting Act cannot be interpreted as allowing the CRTC to create conflicts with the Copyright Act. -.. The CRTC’s powers to impose licensing conditions and make regulations should be understood as constrained by each type of conflict. Namely, in seeking to achieve its objects, the CRTC may not choose means that either operationally conflict with specific provisions of the Broadcasting Act, the Radiocommunication Act, the Telecommunications Act, or the Copyright Act; or which would be incompatible with the purposes of those Acts. ‘As well, the context includes international treaties, particularly those implemented by statute as the Broadcasting Act and Copyright Act do here: .[TJo interpret a Canadian law in a way that conflicts with Canada’s International obligations risks incursion by the courts in the executive’s conduct of foreign affairs and censure under international lav. The contextual significance of international law is all the more clear where the provision to be construed “has been enacted with a view towards implementing international obligations”... In keeping with the intemational context in which Canadian legislation is enacted, this Court has repeatedly endorsed and applied the interpretive presumption that legislation conforms with the state’s international obligations... This interpretive presumption is not peculiar to Canada, It is a feature of legal interpretation around the world. ...°° pofarance re Broadcasting Regulatory Poliey CRTC 2010-167 and Broadcasting Order CRTC 2010-168, [2012] 3 SCR. 489, ©, 34, 37-39 and 48, BOA, Tab 44, emphasis added. ® B01», Cane (Citlzenship and Immigration), 2015 SCC 58, {47-48, BOA, Tab 15, emphasis added. See also R v Appulonappe, 2015 SCC 59, $40, BOA, Tab 43 (“As a matter of staatory interpretation, legislation ixpresumed(0 349-21- 67. When the Broadcasting Act is read together with the Copyright Act and Canada’s international treaty obligations, it is clear that Parliament intended simultaneous substitution to be administered as a general regime applicable to all U.S. programs, not as an ad hoc regime in which individual programs are exempted from the entire Sim Sub Regulations through one-time licensing orders. 68, Under the Copyright Act, television productions of League games are dramatic, works in which the NFL has a number of exclusive rights pursuant to s. 3(1)(0):% 3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public of, ifthe work is unpublished, to publish the work or any substantial part thereof, and includes the sole right (O in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication, and to authorize any such acts. {emphasis added} 69. Thus, the NFL possesses the “sole right” to authorize the communication of televised productions of the Super Bow! to the public by telecommunication. A BDU Which seeks to retransmit the Super Bow in Canada must do so with the authorization of the NFL. 70. Section 31 of the Copyright Act creates a limited exception to this NFL copyright in cases where the Super Bow! is broadcast through an over-the-air television signal from the United States (a “distant signal’ |. However, a BDU may only invoke this user right and retransmit the Super Bowl if it complies with a “detailed” set of criteria,” including any “laws” of Canada relating to the simultaneous substitution of the U.S. signal: comply with Canad obligations”) "© gee perngrapisI3-14 sbove, See also: FWS Joint Sports Claimants v. Canada (Copyright Boar), (1992]1 F.C. 4487, 1991 CarswelINat 157 (CA), 49-10 (L&C), leave to appeal refused, [1991] S.C.C.A, No, 367, BOA, Tab 325, NFL Emerprses LP. v. 1019491 Ontario Led. (c.o.b. Wrigley’ Field Sports Bar & Gril), [1998] F.C}, No. 1063. (CA),42-3 and 7 (QL), BOA, Tab 39; NFL Enterprises LP. v. Satria ane Peter Restaurant Co (0.6. J. Kapps Pasta Bar & Gril), (1999) F.C, No, 1209 (Refer), 7 (QL), BOA, Tab 40 ("The National Foothall Lewgue... ‘owns the copyright in al Sunday afternoon NFL game telecasts which are telecast throughout Canada”) 5 Reference re Broadcasting Regulatory Policy CRIC 2010-167 and Broadcasting Order CRTC 2010-168, (2012)3. S.CAR. 489, $54, BOA, Tab 44 international obligations and cours should avold interpretations that would violate those 3501 -22- [31]@) Itis not an infringement of copyright for a retransmitter to communicate to the public by telecommunication any literary, dramatic, musical or artistic work if (2) the communication is a retransmission of a local or distant signal; (b) the retransmission is lawful under the Broadcasting Acts (©) the signal is retransmitted simultaneously and without alteration, except as otherwise required or permitted by or under the laws of Canada; (@ in the case of the retransmission of a distant signal, the retransmitter has paid any royalties, and complied with any terms and conditions, fixed under this Act; and (©) the retransmitter complies with the applicable conditions, if any, referred to in paragraph (3)(b). [emphasis added) This reference to the “laws” of Canada in s, 31(2)(c) reflects the importance that Parliament attributed to the copyright interests of foreign program owners like the NFL: 72. ‘The Committee shares the view of the Task Force that at a minimum... simultaneous substitution must be maintained. Apart from the practical concern to protect the revenues of Canadian broadcasters, which remained in spite of these measures at half the U.S. per capita level, the Committee believes that the importation of these signals without regard to copyright is in principle unfair both to program producers selling rights for the Canadian market and to the Canadian stations which purchase those rights.”* ‘Thus, while s. 31 of the Copyright Act permits BDUs to retransmit U.S. over-the- air signals without licensing their content from foreign program owners, BDUs must still comply with any simultancous substitution requirements of Canadian “laws”, ic., rules of general application.® As the Supreme Court of Canada said in Greater Vancouver: cs upp! In assessing whether the impugned policies satisfy the "prescribed by law" requirement, it must first be determined whether the policies come within the meaning of the word "law" in s, 1 of the Charter. To do this, it must be asked ‘whether the government entity was authorized to enact the impugned policies and whether the policies are binding rules of general application. fo, the policies can be "law" for the purposes of's. 1 [T]he policy must establish a norm or standard of general application that Cenada, House of Commons Standing Committoson Communications and Culture, teenth Report tothe House: A Broadcasting Policy for Canada (Hull, Quebec: Queen's Pinter for Canada, 1988) at 151, BOA, Tab 5, emphasis ‘dled. 8 Northern Telecom Canada Li, v. Communication Workers of Canada, [1983] 1 S.C.R, 733 at 740, BOA, Tab 41 (“As has been stated by this Court on many oceasions, the expression ‘Laws of Canada’ refers to existing federal legislation, regulations and federal common law"). 351-23- has been enacted by a government entity pursuant to a rule-making authority. So Jong as the enabling legislation allows the entity to adopt binding rules, and so long as the rules establish rights and obligations of general rather than specific application and are sufficiently accessible and precise, they will qualify as "law" which prescribes a limit on a Charter right, [T]he policies can be said to be general in scope, since they establish standards which are applicable to all who want to take advantage of the advertising service rather than to a specific case. They therefore fall within the meaning of the word "law" for the purposes of s. 1...°° 7B. ‘The legislative history confirms that Parliament made a deliberate effort to balance the copyrights of foreign program owners like the NFL against the new user right granted to BDUs in s. 31(2). The provision was enacted to implement Canada’s international obligations under Art. 2006 of the Canada United States Free Trade Agreement (the “CUSFTA")," which expressly premised the BDU user right upon the continued existence of the simultaneous substitution regime: 1. Each Party's copyright law shall provide a copyright holder of the other Party with a right of equitable and non-discriminatory remuneration for any retransmission to the public of the copyright holder's program where the original transmission of the program is carried in distant signals intended for ‘free, over-the-air reception by the general public. Each Party may determine the ‘conditions under which the right shall be exercised. For Canada, the date on which a remuneration system shall be in place, and from which remuneration shall accrue, shall be twelve months after the amendment of Canada’s Copyright ‘Act implementing Canada’s obligations under this paragraph, and in any ease no later than January 1, 1990. 2. Each Party's copyright law shall provide that: 'b) where the original transmission of the program is carried in signals © Greater Vancouver Transportation Authorty». Canadian Federation of Students British Columbia Component {200912 SCR 295,450, 64 end 72,30, Tab 33, emphasis added. Se also: Bel Canada v. Canaan Telephone Explavecs Associaton, (2003) | SCR. 884, 436, BOA, Tab 1%; Dorév. Bareau du Quebec, [2012] 1 SCR. 395, {B1.BOA, T3629 9 Reference re Broadcasting Regulatory Poley CRTC 2010-167 ane Broadcasting Order CRTC 2010-168, 201213 SCR. 489, £95, BOA, Tab 44, The CUSFTA has been implemented by the Canada-Unied Stas Free Trade greens Iplamentatin Act, SC. 988, . 65 ® Canada, House of Commons Standing Commits on Communications and Culture, Feet Report he House ‘A Broadcasting Pole for Canea (Hil, Quchee: Queen's Printz for Cade, 988) at 342, BOA, Tab SS CAricte 006 specially. permits the Inposiion of simultaneous subsiution ruts"; Canada, Deparnert of Communetions, Government Response tthe Fleer Report of he Standing Commitee on Commaniatons and Cultures A Broadcasting Poly for Canada (Osa: Deperoent of Communications, 198) a 19 (tnd 35), BOA, ‘fab 52 (The Government agrees with tis recommendation and has recognized the importance of these measures orth broadcasting industry by providing forthe continuation ofboth BHC-SS" ei simultancoussubstiation tinder the Free Trade Agreement withthe United State) 352-24- intended for free, over-the-air reception by the general public, wilful retransmission in altered form or non-simultaneous retransmission of signals carrying a copyright holder’s program shall be permitted only with the authorization of the holder of copyright in the program. 3. Nothing in paragraph 2(b) shall be construed to prevent a Party from: a) maintaining those measures in effect on October 4, 1987 that ¥) require cable systems to substitute a higher priority or non- distant signal broadcast by a television station for a simultaneous lower priority or distant signal when the lower priority or distant signal carries programming substantially identical to the higher priority or non-distant signal, ) introducing measures, including measures such as those specified in subparagraphs (a)(i) and (a)(ii)(B), to enable the local licensee of the copyrighted programs to exploit fully the commercial value of the licence. {emphasis added] 74. — Therefore, Parliament only permitted BDUs to distribute U.S. network television signals to Canadians on the understanding and basis that the simultaneous substitution regime would remain in place to protect the copyright interests of parties like the NEL As now, the simultaneous substitution regime in place at the time of CUSFTA ~ which had existed since the 1970s ~ was implemented through general CRTC regulations. 75. Canada reaffirmed the importance of these U.S. copyright interests in the North American Free Trade Agreement (“NAFTA”), which incorporates the CUSFTA.* Article 1705(3\(b) of the NAFTA provides that a copyright holder “shall be able to... enjoy fully the benefits derived from those rights”, and Art. 1705(5) prohibits Canada from unduly limiting this right to enjoyment 5, Each Party shall confine limitations or exceptions to the rights provided for in this Article 10 certain special cases that do not conflict with a normal © Cenade, House of Commons, Sub-Committee on the Revision of Copyright of the Standing Committee on Communications and Culture, Charter of Rights for Creators: Report of the Sub-Committee om the Revision of Copyright (Otawa: House of Commons, 1985) at 79, BOA, Tab 36. Notice of Hearing: Let's Talk TY ~ Broadoasting Notice of Consultation CRTC 2014-190, 24 April 2014, 54, ‘Atwell Affidavit, Ex. B, MR, Tab 3 (*The Commision introduced regulation for sinultancous substitution for ‘able BDUs in 1972 and for DTH BDUs in 1993, Those requirements are now set out in sections 38 and 51 of the frrent Broadcasting Distribution Regulations", See also Measures to adress tues relaied simultaneous “Substitution ~ Broadcasting Reguletory Policy CRTC 2015-25, 29 Sanuary 2015, $16, Atvell AVfievit, Ex. D, MR, Tab 3. The NAFTA hasbeen implemented bythe North dmerican Free Trade Agreement implementation Act, S.C, 1993, ©. 44, BOA, Te 6 See Annex 2106 of NAFTA 353-25- exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. [emphasis added] 76, Topermit the CRTC to exempt an individual program from its general Sim Sub Regulations through a one-time licensing order would unreasonably prejudice the legitimate iterests of the U.S. copyright holder, and run contrary to Canada’s international treaty obligations. 77, In fact, this is reflected in the Broadcasting Act itself. Section 27(1) of the Broadcasting Act permits the Governor in Council to issue directions to the CRTC regarding Art, 2006(3) of the NAFTA, but it requires that any such directions be of “general application”: 27. (1) The Governor in Council may, either on the recommendation of the Minister made at the request of the Commission or on the Governor in Councils own motion, issue directions of general application respecting the manner in which the Commission shall apply or interpret paragraph 3 of Article 2006 of the Agreement. (4) In this section, “Agreement” has the same meaning as in the Canada-United States Free Trade Agreement Implementation Act, [emphasis added] 78, This is in contrast to s. 26(2) of the Broadcasting Act discussed above, which permits the Governor in Council to issue directions regarding the broadcast of “any program”. Therefore, not even the Governor in Council, which is expressly granted the power to discriminate against individual programs under the Broadcasting Act, may do so in relation to issues of simultaneous substitution. The CRTC’s attempt to do so here is a clear excess of jurisdiction and should be set aside. 3. The Standard of Review is Correctness 79. ‘The second issue raise in this motion is the standard of review that will apply on appeal.” Bell submits in its application for leave to appeal that the appropriate standard of review is reasonableness, However, the NFL submits that there is atleast an arguable cease that, for two (2) reasons, the standard of review is correctness. 80, First, the appeal rai -s questions about the interpretation of the Copyright Act and two .ernational treaties that have been implemented through Canadian legislation. © Nycan Energy Corp. v- Alberta (Energy and Uslites Board), 2001 ABCA 31 (Chambers), 4, BOA, Tab 425 Labrador Cty (Town) v. Newfoundiand and Labrador Hydro Ine, 2008 NLCA 61 (Chambers), $5, BOA, Tab 37, 354-26- 81. None of these are home statutes of the CRTC. Each of them comes before the courts for interpretation at first instance, Indeed, not even the Copyright Board is entitled to deference regarding questions of law under the Copyright Act.®* 82. Second, the appeal raises a true question of jurisdiction. Section 31(2) of the Broadcasting Act expressly provides for appeals to this Court from CRTC orders “on a question of law or a question of jurisdiction”, and the CRTC itself called its ability to discriminate against the Super Bowl a question of “jurisdiction” in the New Decision: troduction The Commission received several interventions in response to its call for comments on a number of issues, including the circumstances where requests for simultaneous substitution must be honoured, the process for determining errors and Jurisdiction. .. The National Football League (NFL) and the Small Market Independent Television Stations Coalition (SMITS) also commented on the Commission's statement of intent to issue an order under section 9(1)(h) of the Act to implement its policy not to permit simultaneous substitution for the Super Bow! beginning in the 2016-2017 season. They ‘submitted that the Commission lacks the jurisdiction to make any order excluding the Super Bowl from the simultaneous substitution regime. Commission’s analysis The Commission has considered the arguments of the interveners and concluded that it has the jurisdiction t0 implement these regulatory changes. 83, The correctness standard is confirmed by the pre-Dunsmuir jurisprudence,” 2 which holds that jurisdictional decisions of the CRTC are not entitled to deference.” Rogers Communications Inc. . Soctety of Composers, Authors and Music Publishers of Canada, (2012) 28.0.R 283,410, 13 and 15, BOA, Teb 45; Canadian Broadcasting Corp». SODRAC 2003 Inc, 2015 SCC 57, 435, BOA, Tab 24. © Canadian National Railway Co. v. Canada (4.G), 2014) 2 SCR. 135, 485, BOA, Tab 28. off Cancion Broadeasting Corp. ¥. SODRAC 2003 Ine, 2015 SCC 57,439, BOA, Tab 24. Regulations to implement policy determinations regarding simtaneons substitution tn the Let's Talk TV proceeding Broadcasting Regulatory Polley CRTC 2015-513, 19 November 2015, 4 and 20-21, MR, Tab 2, emphasis added. Alberta (leformation and Privacy Commissioner) v. Alberta Teachers' Association, 2011] 3SCR, 654,933, BOA, Tab 13 © geil Canada, Canada (CRT C){1989]1 SOR, 1722. at 1243-1747, BOA, Tab 18; British Columbia Telephone Co. Shaw Cable Systems (B.C) Lid, {1995)28.CR, 739,759, BOA, Tab 21; Barre Publi Unites. Canadian Cable Television Ass, (2008} 1 $.C.R. 416, 9-19, BOA, Tab 16, Telecommunications Workers Union». CRI.C 355-27- 4, This Motion Is Not Premature 84, While the CRTC called the NFL’ s arguments premature, itnonetheless attempted to address them fully in the New Decision, and made what it specifically called a “determination” to exempt the Super Bowl from the Sim Sub Regulations: With respect to the Super Bowl, the Commission notes that it has not yet issued an order excluding the Super Bowl from the simultaneous substitution regime and that therefore she NFL's arguments are premature. However, given that the NFL presented the arguments, the Commission notes that section 9(1)(h) of the ‘Act grants it broad powers to impose any termsand conditions on the distribution of programming services it deems necessary in furtherance of its objects. Unlike the Commission's powers to make regulations pursuant to section 10 of the Act, which are to be exercised with respect to all licensees or classes of licensees, section 9 of the Act relates to conditions which are by definition targeted, ineluding conditions of licence specific to the circumstances of individual licensees. ‘The Commission's policy determination to no longer allow simultaneous substitution for the Super Bowl was based on evidence before the Commission with respect to the unique way in which Canadians perceive the Super Bow! and the role of advertisements in this program. This evidence is relevant to the policy objectives of the Act, irrespective of the commer al or legal intent of the NFL or its programming partners with respect to the event, its integration into a full season and its commercials, The Commission's policy determinations with respect to simultaneous substitution do not affect the NFL’s copyright in i programs. At most, these determinations will have a secondary impact on the value of the program as they may affect the ability of Canadian broadcasters to obtain revenues from broadcasting this program. Finally, with respect to the arguments regarding NAFTA and CUSFTA, the Commission disagrees with the position stated by the NFL. ...”° 85. This motion therefore does not raise any of the prematurity concerns argued by the Attorney General in the Existing Appeal.”* Sse eee Ses eee eee creer eee eee [2004] 2 FCR 3 (CA), $24-25, 29 and 32-33, BOA, Tab 46; Tels Communications Inc. v. Canada (CRT.C), [2005] 2 F.C.R.388 (C.A), {37-38 leave to appeal refsed, [2004] S.C.C.A, No, $73, BOA, Tab 47; Edmonton (Cit) 4 360Networks Canada Led, [2007] 4 F.C. 147 CA}, 433-35, eave to appeal refused, [2007] 8.C-C:A. No. 286, BOA, Tab 30; Reference re Broadcasting Regulatory Policy CRTC 2610-16? and Broadoasting Order CRTC 2010- 168, (2012) 3 SCR. 489, 47-8 and 11-33, BOA, Tab 44, of Bel! Canada v. Bel! Aliant Regional Communications, {[2009]2 S.CR. 764, 33-38, BOA, Tab 17; Wheatland County». Shan Cablesystems L1a, 2009 FCA 291, 933-41, BOA, Tab 50. ° Regulation to implement policy determinations regarding simultaneous substitution in the Lets Tal TY proceeding Broadcasting Reguletory Policy CRTC 2015-513, 19 November 2015, $26-28, MIR, Tab 2, emphasis aed. Memorandum of Feet and Lav of the Respondent, dated 22 September 2015, 41 and 19429, Atwell Aiavit, BX-N, MR, Tab 3, 356-28- 86, First, the New Decision is clearly a “decision” within the meaning of s. 31(2) of the Broadcasting Act. The CRTC has “determined”, finally, that it will exempt the Super Bowl from simultaneous substitution by means of a licensing order under s. 9(1)(h) rather than a regulation under s. 10. 87. ‘That‘“determination” is effective now. In contrast to the Existing Appeal, which the Attorney General said is premature “[u]ntil the Commission issues final and binding, regulatory instruments”,”® the CRTC has now released the Sim Sub Regulations through the New Decision and those regulations came into force on December 1, 2015."° The ‘New Decision attempts to recast the CRTC’s intention to exempt the Super Bowl as a's. ‘9(1)(h) order rather through the Sim Sub Regulations pursuant to s. 10. 88, It is noteworthy that @ “determination” to exempt the Super Bow! from the Sim ‘Sub Regulations through a s, 9(1)(h) order in the New Decision is a “decision” pursuant to the Broadcasting Act, The definition of “decision” in s. 2(1) of the Telecommunications Act which applies to the Broadcasting Act pursuant tos. 15(2\(b) ofthe Interpretation Act given that the two statutes relate to the same subject-matter, i.e, the CRTC” ~ includes “a determination made by the Commission in any form”. 89. Second, the Court will have the benefit ofthe CRTC’s reasoning on the issues.”® ‘The NFL’s argument was made to the CRTC itself as described at paragraph 29 hereof, and was squarely addressed in the New Decision. 90. Finally, the New Decision presents a concrete case relating to the exemption of a single program from the now-binding Sim Sub Regulations via an order made under s. Memorandum of Fact and Law ofthe Respondent, dated 22 September 2015, $24, Atwell Affidavit, EX.N,MR, Te 3 * Sinutaneous Programming Service Deletion are Substitution Regulations, (2018) C. Ge 1, Vol. 149, No.24, 2186, SOR/2015-240, BOA, Tab 8. © tpterprettion Act, RSC. 1985, e121, s 15@2Xb) (“15JQ) Where an enactment contains an interpretation section or provision, shall bereed and construed... (das being applicableto all ther enactments relating tothe Same subjecemater unless «coaery intention appess)- See also Reference re Broodcasting Regulatory Policy ‘ERIC 2010-167 and Broadcasting Orr CRTC 2010-168, (2012) 3 S.CR. 489, (2, 34,37-39 and 45, BOA, Tab 4 Ci Ihe Broadcasting Act &= part of a larger statutory scheme that includes the Copyright Act snd the Telecommuntcations Act. Te teee Acts (plus the Telecommunications dct) are part ofan tmerrtated scheme”. Inthe Memorandum of Fact end Lawo the Respondent dated 22 eptember 2015, 22, Atwell Affidavit, Ex. NMR ‘Tab 3, the Attorney General called the sppeel provision Ins. 64 ofthe Teleconaunications Act*neary identical” 19 thet in. 31 ofthe Broadcasting dct. Memorandum of Fact and Law ofthe Respondent, ated 22 September 2015,$27-28, Atwell Aidavit, Ex. NMR, Tab 3. 357-29- 9(1)(h) of the Broadeasiing Act. The Court will have access to the full record in the Existing Appeal, supplemerited with the NFL's submissions in the New Decision. This will provide all the context necessary to decide the discrete jurisdictional issue raised by the NEL, PART IV—ORDER SOUGHT 91, The NPL tequests that (i) leave to appeal, be granted, (fi) it be allowed to participate in the new appeal as a full party (ii) the new appeal be consolidated with Bell’s appeal of the New Decision, and (iv) the consolidated new: appeal be expedited ‘and heard together with the Existing Appeal. ALL OF WHICH IS RESPECTFULLY SUBMITTED this 14 day of December, 2015. Solicffors for the Moving Pai National Football League, NEL International LLC and NFL Productions LLC ‘Neil Finkelstein, Brandon Kain & Richard Lizius 358SCHEDULE “A” LIST OF AUTHORITIES Statutes and Regulations Broadcasting Act, ss. 9(1)(h), 10(1), 31(2). Canada-United States Free Trade Agreement Implementation Act, 8.C. 1988, 0. 65. Interpretation Act, R.S.C. 1985, ¢. 1-21, s. 15(2)(b) (TSI@) 4, | North American Free Trade Agreement Implementation Act, S.C. 1993, ¢. 44, 5s, | Order Directing the CRTC to Issue a Notice to all Television Networks throughout Canada to Broadcast a Special Message from the Prime Minister, P.C. 1995-1761, (1995) C. Gaz. II, 2986, $.0.R/95-503. ‘Simultaneous Programming Service Deletion and Substitution Regulations, (2015) C. Gaz. II, Vol. 149, No. 24, 2786, S.0.R./2015-240. ia Case Law ERIC Decisions a Z 7,_ | Applications for mandatory distribution on cable and satellite under section 9(1)(h) of the Broadcasting Act ~ Broadcasting Regulatory Policy CRTC 2013-372, 8 August 2013 | Distribution of Canadian Category C national news specialty services ~ Broadcasting Order CRTC 2013-735, 19 December 2013 9,_ | Distribution of omnibus high definition channels by Star Choice and Cancom = Broadcasting Decision CRTC 2005-195, 12 May 2005 Judicial 10, | Alberta (Information and Privacy Commissioner} v. Alberta Teachers’ Association, [2011] 3 S.C.R, 654 11, | Arthur v. Canada (A.G.), {1999} F.C.I. No. 1917 (C.A), leave to appeal refused, 2000 CarswellNat 2391 12, | BO10 v. Canada (Citizenship and Immigration), 2013 SCC 58 13, | Barrie Public Utilities v. Canadian Cable Television Assn., 2003] | SCR. 476 4 Bell Canada v, Bell Aliant Regional Communications, [2009] 2 S.C.R. 764 359Bell Canada v, Canada (C.R.T.C,), (1989] 1 SCR. 1722 15. 16, | Bell Canada v. Canadian Telephone Employees Association, (2003] | S.C.R. 884 17, | Bingo Enterprises Lid, v. Manitoba (Lotteries & Gaming Licensing Board), 1983 CarswellMan 127 (C.A.) 18, | British Columbia Telephone Co. v. Shaw Cable Systems (B.C:) Ltd., [1995] 2 S.C.R. 739 19, | Canada (A.G.) v. Purcell, [1996] | F.C. 644 (C.A.) (QL) 20, | Canada (C.RT.C) v. CTV Television Network Ltd, (1981] 2 F.C. 248 (CA) | (QL), rev'd on other grounds, [1982] 1 S.C.R. 530 21, | Canadian Broadcasting Corp. v. SODRAC 2003 Ine., 2015 SCC 57 22, | Canadian National Railway Co. v. Canada (4.G.), [2014] 2 .C.R. 138 23, | Cathay International Television Inc. v. C.R. T.C., 1987 CarswellNat 919 (F.C.A.) 3a, | CREN Radio Ine, v. Canada (A.G.), 2011 FCA 135 25, | Country Music Television, Ine. v, Canada (C.RT.C.), [1994] P.C.1. No. 1957 CA.) 26, | Doré v. Barreau du Québec, [2012] 1 S.CR.395 “97, | Edmonton (City) v. 360Networks Canada Ltd, (2007) 4 F.C.R. 747 (CA), Ieave to appeal refused, [2007] $.C.C.A. No, 286 2g, | Forger v. Quebec (AG), [1988] 28.C.R. 90 39, | FWS Joint Sports Claimants v. Canada (Copyright Board), [1992] 1 F.C. 487, 1991 CarswellNat 157 (C.A.) (WLeC), leave to appeal refused, [1991] S.C.C.A. No. 367 50, | Greater Vancouver Transportation Authority v. Canadian Federation of Students - Brtish Columbia Component, (2009) 2.8.C.R. 295 31, | Interbox Promotion Corp. v. 9012-4314 Québec Inc, (Hippo Club), 2003 FC 1254 32, | Jolinston Canyon Co. v. Canada (A.G.), 2009 FCA 219 133, | Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), {2013} 3 S.C.R. 810 34, | Labrador City (Town) v. Newfoundland and Labrador Hydro Ino., 2004 NLCA 61 (Chambers) 360+ ili 35, | Moresby Explorers Lid. v. Canada (A.G.), [2008] 2 F.C.R. 341, leave to appeal refused, [2007] 8.C.C.A. No. 536 36, | NFL Enterprises L.P. v. 1019491 Ontario Ltd. (¢.0.b. Wrigley's Field Sports Bar & Grill), [1998] F.C.J. No. 1063 (C.A.) 37, | NFL Enterprises L-P. v. Sotirios and Peter Restaurant Co. (¢.0.b. JJ. Kapps Pasta Bar & Grill, [1999] F.C.1. No. 1209 (Referee) 38, | Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733 | 39, | Nycan Energy Corp. v. Alberta (Energy and Utilities Board), 2001 ABCA 31 (Chambers) 40, | Rv. Appulonappa, 2015 SCC 59 “4, | Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, [2012] 3 S.C.R. 489 42, | Rogers Communications Inc, v. Society of Composers, Authors and Music Publishers of Canada, (2012) 2 $.C.R. 283 Telecommunications Workers Union v. C.R.T.C., [2004] 2 P.C.R. 3 (CA) Telus Communications Inc, v. Canada (C.R.T.C.), [2005] 2 F. (C.A.), leave to appeal refused, [2004] $.C.C.A. No, $73 . 388 Vidéotron Ltée v. Netstar Communications Inc., 2004 FCA 299 WIC Premium Television v. Levin, [1999] F.C.J. No. 652 (T-D.) Wheatland County v. Shaw Cablesystems L1d., 2009 FCA 291 Secondary Sources 48, Canada, Department of Communications, Canadian Voices, Canadian Choices: A New Broadcasting Policy for Canada (Ottawa: Minister of Supply and Services Canada, 1988) 49, Canada, Department of Communications, Government Response to the Fifteenth Report of the Standing Committee on Communications and Culture: A Broadcasting Policy for Canada (Ottawa: Department of Communications, 1988) 50, ‘Canada, Department of Communications, The Broadcasting Act 1988: A Clause-by-Clause Analysis of Bill C-136 (Ottawa; Department of Communications, 1988) sl. Canada, House of Commons Standing Committee on Communications and Culture, Sixth Report to the House: Recommendations for a New Broadcasting Act (Hull, Quebec: Queen's Printer for Canada, 1987) 36152. Canada, House of Commons Standing Committee on Communications and Culture, Fifteenth Report to the House: A Broadcasting Policy for Canada (Hull, Quebec: Queen’s Printer for Canada, 1988) 53, ‘Canada, House of Commons, Sub-Committee on the Revision of Copyright of the Standing Committee on Communications and Culture, A Charter of Rights for Creators: Report of the Sub-Committee on the Revision of Copyright (Ottawa: House of Commons, 1985) 34, DP. Jones and AS. de Villars, Principles of Administrative Law, 6" ed. (Toronto: Carswell, 2014) at 202 58. D.J.M. Brown and J.M Canada, looseleaf (Toront vans, Judicial Review of Administrative Action in : Carswell, 2013+), Vol. Ill, at p. 15-44 56. ‘Government of Canada, Task Force on Broadcasting Policy, Report of the Task Force on Broadcasting Policy (Ottawa: Minister of Supply and Services Canada, 1986) 57, Library of Parliament, Law and Government Division, Research Services, Clause-By-Clause Summary: Bill C-136: An Act Respecting Broadcasting and to Amend Certain Acts in Relation Thereto and in Relation to Radiocommunications (Ottawa: Library of Parliament, 1988), s. 25, ‘comments of CHUM Limited 38. P.S, Grant and G, Buchanan, Canadian Broadcasting Regulatory Handbook, | 2014, 12 ed. (Toronto: McCarthy Tétrault LLP, 2014)363, Court File No. FEDERAL COURT OF APPEAL BETWEEN NATIONAL FOOTBALL LEAGUE, NFL INTERNATIONAL LLC and NFL PRODUCTIONS LLC Moving Parties ~and- ATTORNEY GENERAL OF CANADA Respondent MEMORANDUM OF FACT AND LAW OF THE MOVING PARTIES, NATIONAL FOOTBALL LEAGUE, NFL INTERNATIONAL LLC and NEL PRODUCTIONS LLC McCarthy Tétrault LLP Suite 5300, TD Bank Tower ‘Toronto Dominion Centre 66 Wellington Street West Toronto ON MSK 1E6 Neil Finkelstein Brandon Kain Richard Lizius Tel: 416-362-1812 Fax: 416-868-0673 Solicitors for the Moving Parties, National Football League, NFL International LLC and NFL Productions LLC 15084506Court File No, A-231-15 FEDERAL COURT OF APPEAL BETWEEN: BELL CANADA and BELL MEDIA INC. Appellants. ~and- ATTORNEY GENERAL OF CANADA Respondent - and - NATIONAL FOOTBALL LEAGUE, NFL INTERNATIONAL LLC and NFL PRODUCTIONS LLC Intervener MEMORANDUM OF FACT AND LAW OF THE INTERVENER THE NFL PUBLIC VERSION ‘McCarthy Tétrault LLP Suite $300, TD Bank Tower 66 Wellington Street West Toronto ON MSK 1E6 Neil Finkelstein Brandon Kain Richard Lizius Tel: 416-362-1812 Fax: 416-868-0673 Solicitors for the Interveners, National Football League, ‘NEL Intemational LLC and NFL Productions LLCTO: AND TO: William F. Pentney, Q.C., Deputy Attorney General of Canada clo Department of Justice Ontario Regional Office The Exchange Tower 130 King Street West Suite 3400, Box 36 Toronto, Ontario MSX 1K6 Michael H. Morris Roger Flaim Laura Tausky Tel: (416) 973-9704 / (416) 952-6889 Fax: (416) 973-0809 Solicitors for the Respondent, the Attorney General of Canada ‘Torys LLP 79 Wellington Street West, 30" Floor Box 270, TD South Tower ‘Toronto, ON MSK IN2 John B Laskin Vitali Berditchevski Tel: (416) 865-7317 / (416) 865-8128 Fax: (416) 865-7380 Solicitors for the Appellants, Bell Canada and Bell Media Inc,Court File No. A-231-15 FEDERAL COURT OF APPEAL BETWEEN: BELL CANADA and BELL MEDIA INC. Appellants ~and- ATTORNEY GENERAL OF CANADA Respondent and ~ NATIONAL FOOTBALL LEAGUE, NFL INTERNATIONAL LLC and NFL PRODUCTIONS LLC Intervener MEMORANDUM OF FACT AND LAW OF THE INTERVENER THE NFL TABLE OF CONTENTS PAGE PART I—FACTS.... 1. Overview: 2. The National Football League... 3, The NFL Season.. 4. The Simultaneous Substitution Regime 5, The CRTC Decisior wl 2 3 5 5 PART I— POINTS IN ISSUE ... PART III— SUBMISSION‘ 1. Lack of Jurisdietion 2. Unreasonableness of the Decision .. A. No Basis to Single Out Super Bow. B. Decision Unreasonable in Full Legal Context. a é b. Copyright. International Treaty Obligations .PART IV— ORDER REQUESTED PART V—LIST OF AUTHORITIES.Court File No. A-231-15 FEDERAL COURT OF APPEAL BETWEEN: BELL CANADA and BELL MEDIA INC. Appellants and - ATTORNEY GENERAL OF CANADA Respondent ~and- NATIONAL FOOTBALL LEAGUE, NFL INTERNATIONAL LLC and NFL PRODUCTIONS LLC Intervener MEMORANDUM OF FACT AND LAW OF THE INTERVENER THE NFL PART I—FACTS 1. OVERVIEW 1 In Broadcasting Regulatory Policy CRTC 2015-25 (the “Decision")', the Canadian Radio-television and Telecommunications Commission (“CRTC”) excluded only the Super Bowl — a single program, owned by a single copyright holder and broadcast in Canada by a single exclusive licensee ~ from the simultaneous substitution regime that applies to every other program and class of programs under the scheme of the Broadcasting Act. 2. ‘The NFL contends that the CRTC erred in law and jurisdiction in three respects. 3. First, by targeting the Super Bowl, and only the Super Bowl, the CRTC engaged in administrative law discrimination and thereby exceeded its jurisdiction. The CRTC’s power to regulate does not include the power to discriminate. By excluding only the Super Bow! from " Measures to advess issues related fa simultaneous substitution ~Broadessting Regulatory Policy CRTC 2015-25, 29, Janay 2015, Joint Appeal Book C'SAB"), Tab 3.the simultaneous substitution regime, the CRTC effectively transformed a legislative power into an administrative one, something it is not empowered to do. 4, Second, the CRTC had no intelligible basis to target the Super Bowl, and exclude only it from the simultaneous substitution regime. The CRTC said that U.S. advertising was “integral” to the Super Bowl, but provided no justification for this statement, Indeed, advertising is no more “integral” to the Super Bowl than it is to the Olympics or to the Oscars. Tt was therefore unreasonable for the CRTC to act without justification. 5. Third, the CRTC interpreted the Broadcasting Act overly broadly, without accounting for the impact of its decision on the regime of the Copyright Act or Canada’s international treaty obligations. 6. Asto copyright, the CRTC interfered with the NEL’s exploitation of its copyright over the Super Bowl While the CRTC has the jurisdiction to enact regulations of general application that may incidentally effect copyright, it was unreasonable to interfere with the intellectual property rights associated with a single program. 7. Similarly, intemational treaties recognize the place of the simultaneous substitution regime, and provide that Canada will not act in a way that unreasonably prejudices the legitimate interests of a copyright holders. Indeed, the Broadcasting Act specitically provides that certain relevant treaty obligations can be interpreted through directions of general application. As such, it was unreasonable for the CRTC to prevent the simultaneous substitution of the Super Bowl, and only the Super Bowl. 8. The NFL therefore submits that the CRTC erred in law and jurisdiction by prohibiting the simultaneous substitution of the Super Bowl, and requests that this aspect of the Decision be set aside. 2, THE NATIONAL FOOTBALL LEAGUE. 9, This intervention is brought on behalf of the National Football League (the “League”), NFL International LLC (“NFLI”) and NFL Productions LLC (“Productions”, collectively with the League and NFLI, the “NFL”).10. The League is an unincorporated association of 32 separately owned member clubs (the “Member Clubs”), each of which operates a professional football team.” 11, NFLTis a Delaware limited liability company and a wholly-owned subsidiary of NFL Ventures, L.P. (“Ventures”). NFLI’s operations consist primarily of marketing, publicizing, promoting, licensing, distributing and developing the League’s international business and operations. 12. Productions is a Delaware limited liability company and a wholly-owned subsidiary of Ventures. Productions’ operations consist primarily of producing and distributing programming relating to NFL football. 3, THE NFL SEASON 14, Each year, the League and its Member Clubs present a season of football games, followed by playoffs, and culminating in a championship game between the NFC Champion and AFC Champion, which is called the “Super Bowl”, 15, Beginning in August, and ending in February of the following year, the annual season of League games progresses through the following sequence:* (@) Pre-Season Games which do not count towards a team’s competitive standings, 2 NBL Enterprises LP. v. Sotiris and Peter Restaurant Co. (cb, dd. Kapps Pasta Bar & Gril), [1999] F.C. No, 1209 Referee), 17 QU). 4 Schwartz». Dallas Cowboys Football Clb, ta, 187 F, Supp. 24 $61, 66, footnote 5 (E.D. Pa. 2001) (“Regular season ‘james sre those NFL games which count toward the competitive standings ofthe individual member teams and whic ‘deermine which ofthe member teams will pla’ inthe post-sea90a games, commonly known as the ‘payofis’ and the ‘Super Bowl." Games played before the start ofthe regular season which do not count toward the competitive standings se ealled pre-season games(0) Regular Season Games which determine which teams compete in the playoffs. (© Playoff Games: a series of single-elimination games which occur over several rounds, culminating in the Super Bowl championship game. 16, The Super Bowl is the finale of the NFL season. It acquires its significance as a result of the schedule of League games, viewed as a whole, and concludes many of the player and team narratives that have developed over the course of the season. Indeed, it would not be possible to hold an annual “championship” game between two conference champions unless those teams had first established themselves as superior to the other teams.> In effect, the Super Bowl is the culmination or “crescendo” to the rest of the season.° ‘This is a fact that is 30 notorious or generally aooopted” tha the Court may take judicial notice of [i], R. » Krymovwsti, [2005] 1 S.C. 101,122, * Los Angeles Memorial Coliseum Comn’n , National Football League, 726 F-24 1381, 1389 (9" Cit, 1984), cert. denied, "469 US, 90 (1984) C{TIhe NEL clubs must cooperate to a large extent in their endeavor in producing a ‘product’ — the NFL season eubminaiing in the Super Box"); National Football League Properties, Inc. v. New Jersey Giants, tre, 637 F. Supp. 307, 312 (D.NJ. 1986) (The NFL football season... begins in August with pre-season games ond ‘Champiowship Game known as the ‘Super Bowl” i ate January”)4, THE SIMULTANEOUS SUBSTITUTION REGIME 19. Simultaneous substitution enables a Canadian televi ion station with Canadian rights to USS. programming to request that broadcast distribution undertakings replace incoming USS. advertising in the programs with Canadian advertising.* 20. The purpose is to allow the Canadian station to maximize its advertising revenues by ensuring that its Canadian advertising will be available to all Canadian viewers, including those watching U.S. network signals 21, Since its implementation in the 1970s, simultaneous substitution has created significant benefits for the Canadian broadcasting system, and it continues to do so today.” 5, THE CRTC Decision 22. In the Decision, the CRTC held that the simultaneous substitution regime should rem place for local over-the-air television stations like CTV." 23. However, despite affirming simultaneous substitution for all other U.S. programs carried by local over-the-air television stations, the CRTC ordered that the regime cease to apply to only a single U.S. program: the Super Bowl. 24. The CRTC offered two rationales for this exclusion: (i) Canadian viewers had “complained” about their inability to view the U.S. advertising broadcast in the United States during Super Bowl commercial breaks; and (ii) in contrast to all other League games ~ and indeed all other U.S. programming ~ the Super Bowl is unique in that U.S. advertising is somehow an “integral part” of the program itself: Further, given the comments received from Canadians and the fact that the non-Canadian advertising produced for the Super Bow! is an integral part of this special event programming, distributors will no longer be allowed to perform simultaneous substitution for this event as of the end of the 2016 " Decision, $2, JAB, Tab 3. * Decision, 14, JAB, Tab 3. Decision, 18, JAB, Tab 3.‘NEL season (i.¢. for the January/February 2017 broadcast of the Super Bowl." 25. ‘The CRTC did not identify any jurisdictional basis for its decision to single out the Super Bowl from all other League and U.S. programs through regulation, and to prohibit simultaneous substitution for it alone. Nor did it provide any justification for the decision to discriminate against the Super Bowl. Instead, the CRTC simply noted that it “will issue a notice of consultation seeking comments on the text of proposed amendments to the Regulations required to enact the policy changes in this decision”. 26, The NFL had no way to know, in advance of the Decision, that the CRTC would single out the Super Bowl and prohibit the decades-long practice of simultaneous substitution for that one program only. In fact, Broadcast Notice of Consultation 2014-190-3 indicated only two proposals: (a) the abolition of simultaneous substitution and (b) the abolition of simultaneous substitution for all live event programming.'® There was no suggestion of prohibiting simultaneous substitution on a program by program basis, nor was there any suggestion of prohibiting the practice with respect to the Super Bowl in particular. PART H—POINTS IN ISSUE 27. The issue herein is whether the CRTC erred in law or exceeded its jurisdiction by prohibiting simultaneous substitution for one single program, the Super Bowl. PART I1l— SUBMISSIONS 28, In its factum, Bell has raised five procedural and substantive defects of the Decision. In this intervention, the NFL provides further submissions in support of two of those grounds: (@) In support of Bell's position that the CRTC acted beyond its jurisdiction, the NFL submits that the CRTC engaged in unlawful administrative law discrimination, and " Decision, $22, emphasis acied, JAB, Tab 3. Decision, 23, JAB, Tab 3. ° Byoadoast Notice of Consultation 2014-190-3, JAB, Tab &that the Decision was unreasonable, the NFL, (©) In support of Bell’s posi submits that: (i) The CRTC provided no intelligible justification for the Decision, and (ii) The Decision is unreasonable in light of the full legal context of the Broadcasting Act, including the Copyright Act and Canada's intemational treaty obligations. 1. LACK OF JURISDICTION 29. In excluding the Super Bowl, and only the Super Bowl, from the Simultaneous Substitution regime, the CRTC violated the general principle against administrative law discrimination, As explained by the Supreme Court of Canada in Katz Group: . Regulatory distinctions must be authorised by statute, either expressly or by necessary implication (Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90, at pp. 106-7)..." 30, The Supreme Court explained this principle more fully in Forget: In theory, the power to regulate does not include the power to discriminate, Accordingly, where a statute contains no authorization, express or implied, a discriminatory regulation may be challenged and set aside. This rule was recognized by this Court in City of Montreal v. Arcade Amusements Inc., [1985] 1 S.C.R. 368. Speaking for the Court, Beetz J. said (at p. 404): ‘The rule that the power to make by-laws does not include that of enacting discriminatory provisions unless the enabling legislation provides the contrary has been observed from time immemorial in British and Canadian public law. After quoting the relevant passages fiom the remarks of Lord Russell C.J. in Kruse v, Johnson, {1898} 2 Q.B. 91, Beetz J. went on (at pp. 405-6): -Jaws-are... unreasonable in the wide or legal sense, and ultra 1) they are partial and unequal in operation between Kate Group Canada Ine . Ontario (Health and Long-Term Care), 2013] 3 SCR. 810, 447, emphasis acded. See also: “Alas Trainship Corporation v. Pacific Pilotage Authority, (1981) 1 CR. 261 at 275-277; British Columbia Ferey Corp. 1. Canada (LN.R), [2001] 4 F.C. 3 (C.A.), 419-29, f. Moresby Explorers Lid. v. Canada (4.0), 2007 PCA 273, 19-22, ave to appeal refused, 2007] .C.C.A. No. 536,different classes; ... It's important to note that the first category of by- Iaws unreasonable in the legal sense mentioned by Lord Russell of Killowen is that of by-laws which are discriminatory in the non- pejorative but most neutral sense of the word, and which are rendered invalid even though the distinction on which they are based is perfectly rational or reasonable in the narrow or political sense, and was conceived and imposed in good faith, without favouritism or malice. In the absence of express provisions to the contrary or delegation by necessary implication, the legislator reserves the exclusive right to discriminate. 31. Nor do the provisions of the Broadcasting Act provide for an exception to the general prohibition on administrative law discrimination. In effect, the CRTC exerci its powers under the Broadcasting Act to regulate a single program, rather than a class of programs or class of licensees who broadcast programs. However, the Broadcasting Act does not give the CRTC authority to make regulations whose applicability is based on distinctions between individual programs. Instead, s. 10(2) only permits the CRTC to make regulations whose applicability is based on distinctions between classes of licensees: [10](2) A regulation made under this section may be made applicable to all persons holding licences or to all persons holding licences of one or more classes. [emphasis added 32, Nor does the Broadcasting Act permit the CRTC to exempt individual programs from the applicability of its regulations, Pursuant to s. 9(4), the CRTC may only exempt classes of licensees (i.c., broadcasting undertakings) from its regulations:'® [9](4) The Commission shall, by order, on such terms and conditions as it deems appropriate, exempt persons who carry on broadcasting undertakings of any class specified in the order from any or all of the requirements of this Part or of a regulation made under this Part where the Commission is satisfied that compliance with those requirements will not contribute in a ‘material manner to the implementation of the broadcasting policy set out in subsection 3(1). [emphasis added] ° Forget. Quebec (AG), {1988} 2 S.C.R, 90 at 105-106, emphasis added. See also Montréal (Ci) v. Arcade Amusements Tre (1985) 1 SCR. 368 at 413, (The principle transcends the lis of administrative and municipal ta. Its a principle of fundamental freedom "Department of Communications, Canadian Voices, Canadian Choices: A New Broadcasting Policy for Cana (Ott: ‘Minister of Supply and Services Canad, 1988) et $7 (“The CRTC is empowered to exempt clases of broadcast services from holding loences”); Government Response tthe Fiflenth Report ofthe Standing Commitee on Communications ad Culture: A Broadoasting Policy for Canada (Ottawa; Department of Communications, 1988) at 88 (C/Tfle Commission will have the disretion to exempt classes of broadcasting undertakings from he requirement of holding a Ticene”).33. The non-discriminatory application of CRTC regulations was known to Parliament when it drafied the Broadcasting Act, and was emphasized in the supporting Parliamentary reports. As stated by the Task Force on Broadcasting Policy: ‘The [1968] Broadcasting Act gives the CRTC the power to make regulati These regulations are intended for all licensees or for certain classes of Ucensees depending on the case. Contrary to the case in licensing conditions... the provisions stated in regulations apply to all licensees. Generally, regulations cannot make distinctions. ... Unable to deal with specific instances, regulations also do not have the flexibility to deal with the rapid evolution of broadcasting, ... ‘Thus a regulatory approach... is suitable for dealing with matters that affect all undertakings equally or that affect their relations with third parties. 34. Accordingly, there is no express or implied power given to the CRTC in the Broadcasting Act to distinguish between individual programs in regard to the application of the simultaneous substitution regime in the Broadcasting Distribution Regulations.'* 35. This does not mean that the CRTC cannot make regulations that contain rules or standards which, through their application in specific cases, may result in different regulatory consequences for individual programs."? Such rules and standards are found throughout the CRITC’s regulations, as for instance the anti-obscenity provision in s. 8(1) of the Broadcasting Distribution Regulations. 36. However, this is @ far cry from the CRTC’s treatment of the Super Bowl, which was to carve a single program out of the simultaneous substitution regime in the Broadcasting Distribution Regulations in its entirety. As the Ontario Divisional Court held in H.G, Winton: * Goverment of Canada, Task Force on Broadcasting Policy, Report ofthe Task Force on Broadcasting Policy (Ortava: ‘Minister of Supply and Servis Canada, 1986) at 191, emphasis added. See also Rv, Greenbaum, (1993] | SCR. 674 at 685 See s, 10) of the Broadcasting Act, providing that the CRTC may make regulations “respecting standards of programs tnd te ellocaion of broadcasting te forthe parpose of giving effect othe broadcasting policy set out in subsection 5UUy See also Nottinghamshire County Council y Secretary of State forthe Environment, {1986] A.C, 240 (HLL. 366 (end 261), per Lord Templeman (“Of course the Secretary of State must not pick and choose between aut He laid down a et of principles which are applicable to all focal authortes, but which produce consequences which differ ocatding oth different spending pattems of diferent local authorities").-10- ...f T]he fact that the by-law singles out one property, to the clear detriment of its owners, for a use classification different to that applicable to all other owners covered by the same zoning category under the borough's comprehensive zoning scheme... constitutes discrimination. ...{NJo planning purpose has been shown to explain, let alone justify, the selection of a single spot in the borough as the subject of this amendatory zoning by-law. There is no rhyme nor reason, in a planning sense, for it. Nothing appears in the evidence or on the face of either the by-law or resolution which warrants rezoning this property, and it alone, or provides any planning basis for doing so. [lt is not entitled to rezone this one spot on the entire map of North York to do so, This is simply spot zoning calculated to defeat existing land use rights; it represents unfair and unequal treatment. It is a discriminatory use of the zoning power...” 37. In effect, the CRTC converted a general power to make regulations for all programs into an ad hoc power to make regulations for a single program. This was a jurisdictional error. As the Supreme Court of Canada held in Verdun: ‘The mere reading of section 76 [of the by-law] is sufficient to conclude that in ‘enacting it, the City did nothing in effect but to leave ultimately to the exclusive discretion of the members of the Council of the City, for the time being in office, what it was authorized by the provincial Legislature, under section 426 [of the Cities and Towns Aci}, to actually regulate by by-law. Thus, section 76 effectively transforms an authority to regulate by legistation into a mere administrative and discretionary power to cancel by resolution & right which, untrammelled in the absence of any by-law, could only, ina proper one, be regulated. This is not what section 426 authorizes. ...{OJnce exercised, the delegated right to regulate, in the matters mentioned in paragraph 1 of section 426, is to be maintained at the legislative level and not to be brought down exclusively within the administrative field, as it was in the present instance. ... ‘The comments of Sir Melbourne Tait, then A.C.J., in Corporation du Village de Ste-Agathe v. Reid (Q.R. 10 R. de J. 334.]... are to the point...: «+ It (the by-law) opens the door to discrimination and arbitrary, unjust and oppressive interference in particular cases. It is not really a by-law at all, but a declaration that the council may permit the © 1.6. Winton Lid. v. North York: (Borough), [1978] 0.1. No. 3488 (Div. Ci), 21-23 (QL), emphasis added. See also Dickie Dee ice Cream Lid, +. Winnipeg (Ci), 1985] M.1.No, 167 (C.A.), $84 and 7-8 (QL), of Scarborough (Township) v. Bondi, [1989] SC.R. 444 at 448 and 450-452,38. 2. 39, 40. lle erections referred to in art. 648 upon such conditions as it may think proper to make at any particular meeting. ...” Similarly, in Brant Dairy, the Supreme Court stated A statutory body which is empowered to do something by regulation does not act within its authority by simply repeating the power in a regulation in the ‘words in which it was conferred. That evades exercise of the power and, indeed, turns a legislative power into an administrative one, It amounts to a re-delegation by the Board to itself in a form different from that originally authorized; and that this is illegal is evident from the judgment of this Court in Attorney General of Canada v. Brent [{1956] $.CR. 318). ‘The principle is the same here. The Board was required to legislate by regulation. Instead, it has purported to give itself random power to administer as it sees fit without any reference point in standards fixed by regulation. The same point of principle that emerges from the Brent case was taken carlier in this Court in Verdun v, Sun Oil Co. Ltd. [[1952] 1 S.C.R. 222. ...”” UNREASONABLENESS OF THE DECISION ‘The Decis unreasonable in two respects: (a) First, the CRTC had no intelligible justification to single out the Super Bowl, and () Second, the Decision is unreasonable in light of the full legal context, including the Copyright Act and Canada’s international treaty obligations. No Basis to Single Out Super Bow! ‘The CRTC lacked an intelligible legal justification for treating the Super Bowl differently from all other NFL games, in particular, and from all other programs, in general. While related to the discrimination argument outlined above, this issue also highlights the ty of Vern ¥, Site Oil Ca, [1952] 1 S.C.R, 222 a1 229-230, emphasis added. ® rant Dairy Co, . Milk Commission of Ontario, [1973] SCR. 131 at 146-147, emphasis added. See also: Canada (A.G) 1 Brent, (1956) S.C. 318 at 320; Butler Metal Products Co. Lid . Canada (Employment & Immigration Commission), 1983} F.C. 790, 1982 CarswelINat 116 (C.A.), $8 (WLeC), of Canada (Canadian Radio-Television ‘nd Telecommmunicaions Commission) x. CTV Television Network Lid, {1982} 1 SCR. $3Dat S41,-12- unreasonableness of the Decision. As the Supreme Court of Canada accepted in Arcade Amusements: ‘Though discrimination is often a sign of bad faith on the part of the regulatory authority and it may also contribute to causing a by-law 10 be declared unreasonable, it is nonetheless a boundary which limits originally the exercise of the regulatory power. ...° 41. ‘The CRTC only gave two (2) rationales for singling out the Super Bowl: (@) “the comments received from Canadians”; and (b) “the fact that the non-Canadian advertising produced for the Super Bowl is an integral part of this special event programming”. 42. The NFL adopts Bell’s submission on the first justification in Bell’s memorandum of fact and law, where it argues that the Deci is incompatible with Broadcasting Act policy objectives: a relatively small number of comments received from Canadians are not a relevant stand-alone consideration.” In short populism is not a Broadcasting Policy objective. 43. The CRTC’s second basis for the Decision is that non-Canadian advertising is an “integral” part of the Super Bowl. However, the CRTC provided no Justification for this assertion. 44, First, the U.S. advertising is not even part of the Super Bowl game or covered by the ‘NEL's copyright, much less integral to the Super Bowl. 45. Indeed, the CRTC provided no justification for conclusion that advertising is any more “integral” to the Super Bowl than it is to any other professional sports broadcast such as the Stanley Cup Finals or Olympics, or cultural broadcast such as the Oscars. This Court can © Montréal (City) v, Arcade Amusements Inc., [1985] | $.C.R. 368 at 418, emphasis added. ™ Decision, #22, JAB, Tab 3. * Decision, $22, AB, Tab 3. % Bell Memorandum of Fact and Law, paras 79-83,-B- take judicial notice of the fact that custom advertising is created for many such highly rated broadcasts. However, the CRTC singled out only the Super Bowl. 46. Second, the Super Bow! is not a stand-alone program, but a member of a larger class of programs: the full NFL season. The CRTC provided no justification for treating the Super Bowl differently from the rest of the NFL season or from professional sports broadcasts in general A EE 1155s demonstrates that the Super Bowl is not a stand- alone program, and is part and parcel of the remainder of the League season. Logically, as the conclusion to the annual League season, the Super Bow!’s significance derives from the fact that itis part of a larger series of games. 48. It is true that, as the championship game, the Super Bowl has attained a prominent cultural place. However, that is also true of the Stanley Cup or the World Series, and there is no similar restriction directed at them. 49. Accordingly, the CRTC fundamentally mischaracterized the Super Bowl by treating it as a class of programming unto itself, despite the fact it is inextricably linked with the rest of the season, and treated it as a broadcast for which U.S. advertising is “integral”, without any justification, It is submitted that this meets the test for unreasonableness set out by the Supreme Court of Canada in Khela: ‘Atransfer decision that does not fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and law" will be unlawful Similarly, a decision that Jacks "Justification, transparency and intelligibility" will be unlawful. For it to be lawful, the reasons for and record of the decision must "in fact or in principle support the conclusion reached" [citations omitted] ® ison Institution y. Khela, O14] 1 SCR. $02,173, emphasis added-14- B, Decision Unreasonable in Full Legal Context 50. The Decisi ‘was also unreasonable because the CRTC failed to consider the impact of the Decision on the scheme of the Copyright Act and on Canada’s intemational treaty obligations. 51. The modern rule of statutory interpretation requires that the words of an Act be read in their entire context.* That context includes other statutes and, as Gonthier J. explained in Re Therrien: Interpretations favouring harmony between the various statutes enacted by the same government should indeed prevail. This presumption ls even stronger when the statutes relate to the same subject matter.” 52. By failing to consider the Copyright Act and Canada’s treaty obligations, the CRTC interpreted the Broadcasting Act in a manner incompatible with this principle and reached an unreasonable decision. a. Copyright 53. The CRTC failed to consider the impact of the Decision on the NFLs rights under the Copyright Act. 34, The NFL possesses valuable copyrights in relation to the Super Bowl, and valuable rights as the exclusive licensor of those copyrights in Canada. ‘The Decision precludes it from fully exploiting those rights. 55. The existence of these copyrights is critical to the interpretation of the Broadcasting Act. As the Supreme Court of Canada held in Cogeco: ... Tyke Broadcasting Act is part of a larger statutory scheme that includes the Copyright Act... .. Parliament is presumed to intend “harmony, coherence, and consistency between statutes dealing with the same subject matter”. % Risso & Riszo Shoes Lid. (Re), [1998] | SCR.21, 2. Re Therrien, 2001} 2S.CR. 3,121-15- Accordingly, where multiple interpretations of a provision are possible, the presumption of coherence requires that the two statutes be read together so as to avoid conflict. ... In addition, “[o}rdinarily, ... an Act of Parliament must prevail over inconsistent or conflicting subordinate legislation”... Consequently, as it would be impermissible for the CRTC, a subordinate legislative body, to implement subordinate le n in conflict with another Act of Parliament, the open-ended jurisdiction-conferring provisions of the Broadcasting Act cannot be interpreted as allowing the CRTC to create conflets withthe Copyright Act.” 56. This Court has itself recognized the NFL's copyrights relating to television productions of its games in Canada.! 57. The copyrighted television productions of League games are original cinematographic works that are protected under the Copyright Act as “dramatic works”. As the respective owner and exclusive licensor of these copyrights in Canada, the NFL has a number of exclusive rights under the Copyright Act.” Section 3 of the Copyright Act states: 3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, fo perform the work or any substantial part thereof in public or, ifthe work is unpublished, to publish the work or eny substantial part thereof, and includes the sole right (8) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication, and to authorize any such acts, {emphasis added] 58. Accordingly, the NFL, not the CRTC, possesses the "sole right” to “authorize” the “communieatfion]” of live television productions of the Super Bowl “to the public by » Reference re Broadeasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, [2012] 3 SCR, “483, §34 and 37-39, emphasis added, >" NRL Enterprises LP. ». 1019491 Ontario Ld. (co.b. Wrigley’ Feld Sports Bar & Gril), (1998] PCJ, No, 1063 (C.A.), ‘2-3 and 7 (QL), See also: PIS Joint Sports Claimant . Canada (Coppright Board, [1997] 1 F.C. 487, 1991 CarswelINat 157 (CA), 9-10 CWLAC), lave to sppeal refused, [1991] S.C.C.A, No. 367; and NFL Enterprises LP. Soties and Peer Restaurant Co (2.0 6. 14. Kepps Pasta Bar & Gril), [1995] F.C. No, 1209 (Referee), #7 (QL) (The National Football Lengue... ows the copyright in all Sunday afternoon NFL. game telecasts which are telecast throughout Canade”) 2 afarence re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012] 3 SCR. 489, 1-54,-16- telecommunication” in Canada, A cable or satellite company which seeks to retransmit a telecommunication signal from a U.S, network affiliate containing the Super Bowl in Canada must therefore do so with the authorization of the NFL. 59, Section 31 of the Copyright Act creates a limited exception to that rule, and permits ‘cable and satellite companies to retransmit U.S. Super Bow! signals if the following criteria are met: [31]@) Itis not an infringement of copyright for a retransmitter to communicate to the public by telecommunication any literary, dramatic, musical or artistic work if (©) the signal is retransmitted simultaneously and without alteration, except as otherwise required or permitted by or under the laws of Canada; ... {emphasis added 60. For the exception to the NFLL’s rights in s. 31(2)(¢) to apply, the section requires that retransmitters comply with Canadian “laws”, i.e, laws of general application applicable to all licensees or licensee classes pursuant to s. 10(2) of the Broadeasting Act.** This does not include CRTC decisions relating to specific programs. Such an order would not be “required ‘or permitted by or under the Jaws of Canada”. As the Supreme Court of Canada held in Greater Vancouver: In assessing whether the impugned policies satisfy the "prescribed by law" requirement, it must first be determined whether the policies come within the meaning of the word "law" in s, | of the Charter. To do this, it must be asked ‘whether the government entity was authorized to enact the impugned policies and whether the policies are binding rules of general application. If so, the policies can be "law" for the purposes of s. 1. ... [T]he policy must establish a norm or standard of general application that has been enacted by a government entity pursuant to a rule-making authority. .. So Jong as the enabling legislation allows the entity to adopt binding rules, and so long as the rules establish rights and obligations of general rather than specific application and are sufficiently accessible and precise, they will qualify as "law" which prescribes a limit on a Charter right. » Northern Telecom Canada Ltd. », Communication Workers of Canada, 1983] | §.C.R. 733 at 740 (*As has been stated by this Court on many occesions, she expression ‘Laves of Canada’ refers to existing federal egstation, regulations and feleral common law")-17- ...[T]he policies can be said to be general in scope, since they establish standards which are applicable to all who want to take advantage of the advertising service rather than to a specific case. They therefore fall within the meaning of the word "law" for the purposes of s. 1...** 61. Given the simultaneous substitution regime in the Broadcasting Distribution Regulations, all U.S. Super Bow! signals must be altered to substitute Canadian advertising for US. advertising broadcast in the United States during Super Bowl commercial breaks ‘where requested to do so by a local television station. The simultaneous substitution regime is a law of general application and constitutes a part of the “laws of Canada” under which signal alteration is required, and with which the Copyright Act therefore requires compliance. 62. Section 31(2)(c) of the Copyright Act requires compliance with laws of general application, including the simultaneous substitution regime. However the Decision contradicts that rule by excluding only the Super Bow! from that regime, The Decision, made under the auspices of the Broadcasting Act, is incompatible with the Copyright Act, which requires compliance with the simultaneous substitution regime, The Broadcasting Act should be interpreted in a manner that avoids that conflict. Given that the Copyright Act and Broadcasting Act are part of an interrelated scheme,”* it is even more important that they be interpreted harmoniously.*° 63. The CRTC failed to consider the implications of the decision for the NFL’s copyrights and, in doing so, came to an unreasonable decision that crates a conflict between two statutes that are part of a single complete code. b. International Treaty Obligations 64, The Decision also unreasonably fails to account for Canada’s intemational treaty obligations under both the Canada United States Free Trade Agreement (the “CUSFTA”)” Greater Vancouver Transporation Authority. Canadian Federation of Students» British Columbia Component, [2008] 2 ‘SCR, 295, 80, 64 and 72, emphasis acded. See also: Bell Canada v. Canadian Telephone Employees Assocation, [2003] 1 S.C, 884, 36; Dord v. Barreaw du Québec, [2012] 1 SCR. 395,137 . Reference re Broadcasting Regulatery Policy CRTC 2010-167 and Broadcastng Order CRTC 2010-168, 2012]3 SCR 489, 34 % Re Therrien, 2001]2 SCR, 3, 4121. 7 The CUSFTA has been implemented bythe Canada-United States Free Trade Agreement Inplementaton Act, S.C. 1988, 666,and the North American Free Trade Agreement (“NAFTA”),® which incorporates the CUSFTA.* This is the case despite the fact that s. 27 of the Broadcasting Act directly references CUSFTA. As the Supreme Court of Canada said in Hape: {Courts will strive to avoid constructions of domestte law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result... /T]he legislature is presumed to act in compliance with Canada’s obligations as a signatory of international treaties and as a member of the international community, In deciding between possible interpretations, courts will avoid a construction that would place Canada in breach of those obligations. 65. The starting point is Article 1705(3)(b) of the NAFTA, which provides that a holder in a copyright “shall be able to... enjoy fully the benefits derived from those rights”. Article 1705(5) goes on to prohibit Canada from unduly limiting this right of enjoyment: 5, Each Party shall confine limitations or exceptions to the rights provided ‘for in this Article to certain special cases that do not conflict with a normal ‘exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. (emphasis added] 66. Thus, Article 2006(3) of the CUSFTA provides that, while a right holder's authorization for the retransmission of programs in communication signals is only required if the retransmission is in altered or non-simultaneous form, Canada may still: ...introdue[e] measures... to enable the local licensee of the copyrighted program to fully exploit the commercial value of its licence. [emphasis added] 67. This provision is a clear reference to the CRTC’s simultaneous substitution regime, and was designed to align it with Canada’s trade obligations.“’ As the Department of ‘Communications said at the time the Broadcasting Act was introduced: The Government... has recognized the importance of these measures for the broadcasting industry by providing for the continuation of... simultaneous substitution under the Free Trade Agreement with the United States.”” The NAFTA hes been implemented by the North American Free Trade Agreement Implementation At, C1993, 0.44, 2 Sop Annex 2106 of NAFTA. © R., Hae, [20072 SCR. 29, $53, emphasis added. “House of Commons Standing Committee on Commaunicstions and Culture, Fifteenth Report tothe House: A Broadcasting "Poizy jor Canada (Hull, Quebec: Queen's Printer for Cxnaa, 1988) at 342, (Article 2006 specially permits the Imposition of simultancous substation rales".19 68. Contrary to these treaty obligations, the Decision prevents the NFL from fully enjoying the benefits of its Super Bowl copyrights and exclusive right to license Super Bowl copyrights in Canada, since it reduces the value of the Super Bow! copyrights to Canadian advertisers and the Canadian licensees. It i clear that this “unreasonably prejudice{s} the legitimate interests” of the NFL, as the only person subject to the limitation. 69. This conflict between the Decision and Canada’s intemational treaty obligations underscores the unreasonableness of the CRTC's interpretation of the Broadcasting Act. 70. The Decision is particularly unreasonable given that s: 27 of the Broadcasting Act expressly references Article 2006(3) of the CUSFTA (the provision recognizing the simultaneous substitution regime). Significantly, while the provision allows Cabinet to issue directions regarding the CRTC’s interpretation of Article 2006(3), it requires that any such directions be “of general application”: 27. (1) The Governor in Council may, either on the recommendation of the Minister made at the request of the Commission or on the Governor in Council's own motion, issue directions of general application respecting the manner in which the Commission shall apply or interpret paragraph 3 of Article 2006 of the Agreement. (4) In this section, “Agreement” has the same meaning as in the Canada- United States Free Trade Agreement Implementation Act. {emphasis added] 71. Accordingly, the Broadcasting Act itself provides that any exception to the simultaneous substitution regime must be on a general basis, and cannot target a single program like the Super Bowl. © Department of Communietions, Government Response 1 the Fyteenth Report of the Standing Commitee on Communications and Cultire: A Broadcasting Policy for Cavada (Ottawa: Department of Communications, 1988) at 19, emphasis added.-20- PART IV—ORDER REQUESTED 72. The NFL submits that the CRTC erred in law and jurisdiction by prohibiting simultaneous substitution of the Super Bowl, and therefore requests that the appeal be allowed and this aspect of the decision be set aside. 73. The NFL is not seeking costs and asks that no costs be awarded against it, ALL OF WHICH IS RESPECTFULLY SUBMITTED this 10 day of September, 2015. Soles for the interveners, ‘National Football League, NFL International LLC and NFL Productions LLC Neil Finkelstein, Brandon Kain & Richard LiziusA. 10. PART V—LIST OF AUTHORITIES Statutes and Regulations Broadcasting Act, $.C. 1991, e. 11, a8 am. Canada-United States Free Trade Agreement Implementation Act, S.C. 1988, ¢, 65. Copyright Act, R.S.C. 1985, ¢. C-42. North American Free Trade Agreement Implementation Act, $.C. 1993, ©. 44, Annex 2106 of NAFTA, Case Law Alaska Trainship Corporation v. Pa S.C.R. 261 ifte Pilotage Authority, (1981] | Bell Canada v. Canadian Telephone Employees Association, [2003] 1 SCR. 884 Brant Dairy Co. v. Milk Commission of Ontario, [1973] 8.C.R. 131 British Columbia Ferry Corp. v. Canada (M.N.R.), (2001] 4 F.C. 3 (CA) Butler Metal Products Co. Ltd. v, Canada (Employment & Immigration Commission), [1983] 1 F.C. 790, 1982 CarswellNat 116 (C.A.) (WLeC), Canada (A.G.) v. Brent, (1956] $.C.R. 318 Canada (Canadian Radio-Television and Telecommunications Commission) v. CTV Television Network Ltd., [1982] 1 $.C.R. 530 City of Verdun v. Sun Oil Co., [1952] 1 $.C.R, 222 Dickie Dee Ice Cream Ltd. v. Winnipeg (City), [1985] M.J. No. 167 (C.A,) (QL) Doré v. Barreau du Québec, [2012] 1 $.C.R. 395 Forget v. Quebec (A.G.), [1988] 2 S.C.R. 9013. 14, 15. 16. 17. 18, 19, 20. 2 22. 24, 25. 26. 21. 28, 29. FWS Joint Sports Claimants v. Canada (Copyright Board), [1992] | F.C. 487, 1991 CarswellNat 157 (C.A.) (WLeC), leave to appeal refused, [1991] S.C.C.A. No. 367; Greater Vancouver Transportation Authority v. Canadian Federation of Students - British Columbia Component, [2009] 2 8.C.R. 295 HG. Winton Ltd. v. North York (Borough), [1978] 0.J. No. 3488 (Div. Ct) (QL) Katz Group Canada Ine. v. Ontario (Health and Long-Term Care), [2013] 38.C.R. 810 Los Angeles Memorial Coliseum Comm'n v. National Football League, 726 F.2d 1381, 1389 o Cir. 1984), cert. denied, 469 U.S. 990 (1984) Mission Institution v. Khela, (2014) 1 $.C.R. 502 Montréal (City) v. Arcade Amusements Inc., {1985} 1 $.C.R. 368 Moresby Explorers Lid. v. Canada (4.G.), 2007 FCA 273, leave to appeal refused, [2007] 8.C.C.A. No. 536 National Football League Properties, Inc. v. New Jersey Giants, Inc., 637 F. Supp. 507, 512 (D.NJ. 1986) NEL Enterprises L.P. v. 1019491 Ontario Ltd. (c.0.b. Wrigley's Field Sports Bar & Grill), {1998} F.C.J. No. 1063 (C.A.) (QL) NFL Enterprises L.P. v, Sotirios and Peter Restaurant Co. (¢.0.b. Jal. Kapps Pasta Bar & Grill), (1999] F.C.J. No. 1209 (Referee) (QL) Northern Telecom Canada Lid. v. Communication Workers of Canada, [1983] 1 S.C.R. 733 Nottinghamshire County Council v. Secretary of State for the Environment, [1986] A.C. 240 (HLL) Rv, Greenbaum, [1993] | $.C.R. 674 R. v. Hape, [2007] 2 8.C.R. 292 Rv. Krymowski, [2005] 1 $.C.R. 101 Re Therrien, [2001] 2 8.C.R.3 Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, [2012] 3 $.C.R. 48930. 31. 32, c Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 8.C.R. 27 Scarborough (Township) v. Bondi, [1959] S.C.R. 444 Schwartz v. Dallas Cowboys Football Club, Ltd., 157 F. Supp. 2d 561, 566, footnote 5 (E.D. Pa. 2001) Secondary Sources Government of Canada, Task Force on Broadcasting Policy, Report of the Task Force on Broadcasting Policy (Ottawa: Minister of Supply and Services Canada, 1986) Department of Communications, Canadian Voices, Canadian Choices: A New Broadcasting Policy for Canada (Ottawa: Minister of Supply and Services Canada, 1988) Department of Communications, Government Response to the Fifteenth Report of the Standing Committee on Communications and Culture: A Broadcasting Policy for Canada (Ottawa: Department of ‘Communications, 1988) House of Commons Standing Committee on Communications and Culture, Fifteenth Report to the House: A Broadcasting Policy for Canada (Hull, Quebec: Queen’s Printer for Canada, 1988)Court File No. A-231-15 FEDERAL COURT OF APPEAL BETWEEN BELL CANADA and BELL MEDIA INC. Appellants sand - ATTORNEY GENERAL OF CANADA Respondent ~and- NATIONAL FOOTBALL LEAGUE, NFL INTERNATIONAL LLC and NFL PRODUCTIONS LLC Intervener FACTUM OF THE MOVING PARTIES, NATIONAL FOOTBALL LEAGUE, NFL INTERNATIONAL LLC and NFL. PRODUCTIONS LLC McCarthy Tétrault LLP Suite 5300, TD Bank Tower Toronto Dominion Centre 66 Wellington Street West Toronto ON MSK 1E6 Neil Finkelstein Brandon Kain Richard Lizius ‘Tel: 416-362-1812 Fax: 416-868-0673 Solicitors for the Interveners, National Football League, NEL International LLC and NFL Productions LLC Docs 148510509ecart| eeatY “End of document™*