Bell Canada v. 7265921 Canada Ltd., 2018 FCA 174

Justice Rennie; Justice Woods; Justice Nadon - 2018-10-01

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Rennie: In 2015 the Canadian Radio-television and Telecommunications Commission (CRTC) imposed a policy to govern affiliation agreements, or simply, the contracts, between programming undertakings (PUs) and broadcasting distribution undertakings (BDUs). The CRTC implemented this policy through two decisions: Broadcasting Regulatory Policy 2015-438 (the 2015 Wholesale Code or the Code), and Broadcasting Order 2015-439 (the Order). The 2015 Wholesale Code establishes certain parameters on the negotiation and content of affiliation agreements. The Order makes the 2015 Wholesale Code binding on broadcasting distribution undertakings and requires them to distribute programs according to prescribed terms and conditions. ... Bell asserts that the mandate vested in the CRTC by section 3 of the Broadcasting Act to implement the Broadcasting Policy for Canada does not authorize the CRTC to interfere in the economic relationship between BDUs and PUs. Its argument is twofold: the 2015 Wholesale Code is not authorized by paragraph 9(1)(h) of the Broadcasting Act and secondly, the Code violates Bell’s copyright interests guaranteed under paragraph 3(1)(f) and subsection 13(4) of the Copyright Act. Woods: I agree with the reasons of my colleague, Justice Rennie, with the exception of his finding that the CRTC reasonably concluded that paragraph 9(1)(h) of the Broadcasting Act enables the CRTC to issue the 2015 Wholesale Code and the Order. Nadon: Both Rennie and Woods JJ.A., conclude that the question of whether paragraph 9(1)(h) of the Broadcasting Act confers authority to the CRTC to issue the Order must be decided on the standard of reasonableness. In my respectful opinion, the applicable standard is correctness.

Decision relates to:



Canadian Intellectual Property