‘There’s going to be more recourse to the courts as people challenge the commission’: Grant

Peter Grant’s new book, Communications Law and the Courts in Canada, will be an essential reference guide on the desk of any communications lawyer—and communications nerds in general. The book, now known as “the Blue Book” for its blue cover, has been published by law firm McCarthy Tétrault, and will be added to to the firm's popular “Yellow Book” (Regulatory Guide to Canadian Television), the “Red Book” (Canadian Broadcasting Regulatory Handbook), and the “Green Book” (Regulatory Guide to Canadian Radio). Grant, counsel with McCarthy Tétrault in Toronto, has his hands in all of them. He is considered a top name in Canadian communications law, and is also the co-author, with Chris Wood, of Blockbusters and Trade Wars: Popular Culture in a Globalized World (Douglas & McIntyre, 2004). The Blue Book is an annotated guide to all judicial decisions relating to communications and copyright law in Canada. It’s pretty heavy. At 742 pages, it contains annotations to more than 500 decisions, and weighs a few pounds (but it's almost half as long as the Yellow Book). Serious work on the book got under way last year after Grant decided to bring up to speed a previous guide published by the Law Society of Upper Canada that hadn’t been updated since 1988. The Law Society handed him the copyright to the book, and with the assistance of 12 law students at the firm (their names are listed in the front of the book), he brought the book up to date. The CRTC also contributed two students, Mandeep (Monica) Chohan and Jamie David Greenberg, who faced the difficult job of researching applications for leave to appeal CRTC decisions—which the courts dismissed without reasons. They had to research the pleadings to explain the issues that the courts dismissed. In an introduction to the book, Grant notes that the CRTC has been the subject of 104 court challenges, 88 of which failed, for “a formidable success rate of 85%." The Copyright Board of Canada has faced court challenges 24 times since its creation in 1989, 20 of which have stood, for a success rate of 83 per cent. Grant also addresses the question of convergence and the calls to merge the Telecommunications Act and Broadcasting Act into a single statute, saying he isn’t so sure that merging the acts is necessary. The two acts “have turned out to be remarkably robust,” he writes. “The goals of the Broadcasting Act continue to be relevant in the digital age,” he says, and the CRTC can influence programming through licence conditions, scheduling and expenditure requirements, terms of trade between broadcasters and independent producers, and decisions on signal carriage. Consolidation and vertical integration among the big industry players—while making for a more competitive environment—do not necessitate a new, converged act. It would be a significant undertaking to try and merge the two acts, and he says he is not convinced that it’s worth the effort. Grant met with The Wire Report on Wednesday for an interview at the Reinventing Canadian Media conference in Ottawa, hosted by the Public Policy Forum. The following is an edited transcript. This is a very interesting compilation. Why did you write this book? Twenty-two years ago the Law Society published an earlier hardcover book that covered the same ground. It looked at all the judicial decisions affecting communications regulation and copyright regulation up until 1988. At that point there were about 340 judicial decisions in Canadian history that needed to be analyzed. But it’s 22 years later, and over the years people have asked me, “Are you ever going to update that? There’s been a heck of a lot of judicial decisions, some of them quite important.” The Copyright Board of Canada was created in 1989. Since ’88 there has also been a new Broadcasting Act created in 1991 and a new Telecommunications Act in 1993. In the older book, the section numbers in the statutory references are all out of date. So the Law Society handed me the copyright in the old book and we scanned it. Then I amended it to take account of the statutory changes since ’88. We had the help of a bunch of law students at McCarthy’s last summer. We put 12 of them to work doing summaries. The most recent case in the book is in January 2010, so I managed to get everything up to date to the end of last year. One of the things you point out in the introduction is that we’re seeing more regulatory decisions appealed or reviewed by the courts. Why is that? I would point to two factors. One is that you have consolidation in the industry, so you have bigger players. There’s more money at stake for any particular decision, so there’s more of a propensity to see if you can’t reverse the commission’s decisions in the courts. The concentration and the largeness of the industry is one factor. The other is that you have convergence. You have a number of owners and players who weren’t around when the original decisions were made and they are concerned. They weren’t part, if you will, of the regulatory bargain years ago that led to some of these licences being granted. They’re sort of going back to first principles and saying, ‘Why do we have to do all of this?” To me it’s understandable. I suppose it’s regrettable, but it does mean there’s going to be more recourse to the courts as people challenge the commission. Of course the commission, responding to this, has referred matters to the court. You write that you think the CRTC’s Canadian content policies are on safe ground under Charter jurisprudence. Can you talk about that? What I mention in the book is that, a few years ago, talking with other communications lawyers, one of them said, “The Canadian content regime is the elephant in the room,” suggesting that it was open for attack and inferring that nobody had ever really gone to court to try and overturn the commission’s Canadian content requirements on the basis of freedom of expression. That is a logical question because the requirements that the commission imposes on Canadian content affect scheduling, commissioning of work, and all sorts of things that affect your freedom of expression. The question would be, are they sustainable under the Charter of Rights? The answer, in my view, is it clearly is, and I lay out some of the arguments. The jurisprudence is quite clear that the Canadian content requirements—the kind that the commission has imposed so far—would pass scrutiny in the courts. There was obviously quite a process to put this book together. What did you learn in the course of making it? It is complex. You learn a heck of a lot about the difficulty of the interface between the private sector and regulation. Of course, there’s a real tension in the courts as to which court is the right court to look at some issues. Should they defer to the commission, as they have done in some cases? Or should they say, “No, no, this is something we as a court can handle"? I’m talking about private suits between communications companies quarreling about commission policy, and they go to court to try and resolve a contractual dispute. There’s an interesting byplay here. Some courts will say, “No, no we won’t touch it. That’s something for the commission to deal with.” Others will say, “No, this is something the courts are used to doing. We’ll make a decision and money will change hands as a result.” That’s an interesting tension in the courts, and it hasn’t entirely been resolved. There’s a case in fact in front of the Supreme Court of Canada. It’s called the Telezone case, and I’ve got the Ontario Court of Appeal level decision in the book. It’s a pretty important decision, because it basically says the courts can go after Industry Canada for its spectrum allocation decisions, not by way of judicial review of the minister’s decision, but rather on civil ground in a provincial superior court on the basis of negligence. It’s sort of on the basis of tendering law: You set the rules out badly and you’re negligent in how you awarded this. Is that a collateral attack on the minister that should have been taken to the Federal Court of Appeal as a judicial review matter? Or is this just a simple negligence case that you can bring against the Crown like you bring against anybody in a provincial court? This is a matter that is quite tricky, and the Supreme Court of Canada will have to decide. Were there any cases that really stood out for you as you went through the record of all these cases? They’re all sort of intriguing. I had some fun including all the election law cases in there. A lot of them have to do with broadcasting because for many years I have acted as the broadcasting arbitrator for Canada under the Canada Elections Act, which means that I deal with the allocation of paid time and the use of free time, and I arbitrate disputes between the parties and the broadcast parties in every federal election. It turns out there are a number of cases in the book dealing with to what extent can the blackout rules apply. You’re not permitted to have the results before the local polls close, and you can’t have advertising on polling day. And, there must be 10 cases in the book on minority parties wanting to get in on the leaders’ debates. This is a time-honoured problem that goes back 25 years. It never lets up, and the cases are unanimous in saying that the courts will not force the networks to include a small party leader in the debate. They’ll allow that decision to be made by the stations themselves. sdoyle@thewirereport.ca

‘There’s going to be more recourse to the courts as people challenge the commission’: Grant

Broadcast | May 21, 2010

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