National Football League, et al. v. Attorney General of Canada

(Federal) (Civil) (By Leave)


Administrative law - Copyright, Legislation, Interpretation, Commercial law, International trade, Jurisdiction, Judicial review, Standard of review, Boards and tribunals - Intellectual property - Copyright - Legislation - Interpretation - Commercial law - International trade - Administrative law - Jurisdiction - Judicial review - Standard of review - Boards and tribunals - Are the Canadian Radio-Television and Telecommunications Commission (“CRTC”) Instruments ultra vires the jurisdiction of the CRTC under s. 9(1)(h) of the Broadcasting Act, S.C. 1991, c. 11 - Are the CRTC Instruments invalid based on their conflict with s. 31(2) of the Copyright Act, R.S.C. 1985, c. C-42.


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The CRTC issued an Order excluding the Super Bowl from the simultaneous substitution regime to which it has been subject for many years under the Simultaneous Programming Service Deletion and Substitution Regulations. Under that regulatory regime, the Canadian broadcaster of the Super Bowl made requests to ensure that the Super Bowl was broadcast in Canada with Canadian commercials on both Canadian and American channels. The CRTC’s determination that simultaneous substitution for the Super Bowl is not in the public interest means that, as of January 1, 2017, Canadians watching the Super Bowl on Canadian stations see Canadian commercials, while those watching it on American stations see American commercials. The appellant, as copyright holder, had entered into an agreement with Bell Canada and Bell Media Inc. (“Bell”), granting Bell an exclusive license to broadcast the Super Bowl in Canada through to February 2020. Bell recovers the costs of the license by selling to Canadian businesses advertisements can be inserted into the Super Bowl broadcast on both Canadian and American stations. The appellant and Bell challenged the jurisdiction of the CRTC to issue the Order on the basis that it conflicts with Canadian broadcasting policy and regulations; targets a specific program, applies changes to the regulatory regime retrospectively to the detriment of vested rights, and is contrary to the Copyright Act, and Canada’s international trade obligations. The Federal Court of Appeal dismissed those appeals.