Court File No. 34231

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) IN THE MATTER OF AN APPLICATION BY WAY OF A REFERENCE TO THE FEDERAL COURT OF APPEAL PURSUANT TO SECTIONS 18.3(1) AND 28(2) OF THE FEDERAL COURTS ACT, R.S.C. 1985, C.F-7

B E T W E E N: COGECO CABLE INC.

Appellant - and -

BELL MEDIA INC. (FORMERLY CTV GLOBEMEDIA INC.), CANWEST TELEVISION LIMITED PARTNERSHIP, NEWFOUNDLAND BROADCASTING CO. LTD., V INTERACTIONS INC. AND ATTORNEY GENERAL OF CANADA

Respondents

A N D B E T W E E N: ROGERS COMMUNICATIONS INC. and TELUS COMMUNICATIONS

Appellants - and -

BELL MEDIA INC. (FORMERLY CTV GLOBEMEDIA INC.), CANWEST TELEVISION LIMITED PARTNERSHIP, NEWFOUNDLAND BROADCASTING CO. LTD., V INTERACTIONS INC. AND ATTORNEY GENERAL OF CANADA

Respondents

A N D B E T W E E N: SHAW COMMUNICATIONS INC. Appellant - and -

BELL MEDIA INC. (FORMERLY CTV GLOBEMEDIA INC.), CANWEST TELEVISION LIMITED PARTNERSHIP, NEWFOUNDLAND BROADCASTING CO. LTD., V INTERACTIONS INC. AND ATTORNEY GENERAL OF CANADA

Respondents - and -

THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION (CRTC)

Intervener FACTUM OF THE APPELLANT COGECO CABLE INC. (Pursuant to Rules 35 and 42 of the Rules of the Supreme Court of Canada)

McCarthy Tétrault LLP Cavanagh Williams Conway Baxter LLP Suite 5300, Toronto-Dominion Bank Tower Suite 401 Toronto, ON M5K 1E6 1111 Prince of Wales Drive Ottawa, ON K2C 3T2 Neil Finkelstein Steven G. Mason Colin S. Baxter Daniel G.C. Glover Tel: (613) 780-2011 Tel: (416) 601-8200 Fax: (613) 569-8668 Fax: (416) 868-0673 Ottawa Agent for the Appellant Solicitors for the Appellant Cogeco Cable Inc. ORIGINAL TO: THE REGISTRAR Supreme Court of Canada 301 Wellington Street Ottawa, ON K1A 0J1 COPIES TO: Parties Counsel Agent Attorney General of Canada Department of Justice Canada Civil Litigation Section, Bank of Canada Building East Tower – Room 1104 234 Wellington Street Ottawa, ON K1A 0H8 Per: Alexander M. Gay Tel: (613) 941-2353 Fax: (613) 954-1920 Bell Canada Inc. and Bell Aliant Regional Communications, L.P. 160 Elgin Street 19th Floor Ottawa, ON K2P 2C4 Denis E. Henry Tel: (613) 785-6361 Fax: (613) 560-0472 Mr. Mirko Bibic Tel: (613) 785-0615 Fax: (613) 594-4628 Canadian Radio-television and Telecommunications Commission Central Building 1 Promenade du Portage Gatineau, QC J8X 4B1 John Keogh Tel: (819) 953-3990 Valerie Dionne Tel: (819) 953-4889 Crystal Hulley Tel: (819) 956-2095 Fax: (819) 953-0589 Parties Counsel Agent Canwest Television Paliare Roland Rosenberg Limited Partnership Rothstein LLP 250 University Avenue Suite 501 Toronto, ON M5H 3E5 Chris Paliare Tel: (416) 646-4318 Andrew Lokan Tel: (416) 646-4324 Fax: (416) 646-4301 Bell Media Inc. (formerly Goodmans LLP Nelligan O’Brien Payne CTVglobemedia Inc.), Bay Adelaide Centre LLP Newfoundland 333 Bay Street 55 O’Connor Street Broadcasting Company Suite 3400 Suite 1500 Ltd. and V Interactions Toronto, ON M5H 2S7 Ottawa, ON K1P 6L2 Inc.

Benjamin Zarnett Dougald Brown Tel: (416) 597-4204 Tel: (613) 231-8210 Robert Malcolmson Fax: (613) 788-3661 Tel: (416) 597-6286 Peter Ruby Tel: (416) 597-4184 Fax: (416) 979-1234 Rogers Communications Fasken Martineau Dumoulin LLP Inc. and TELUS 55 Metcalfe Street Communications Suite 1300 Company Ottawa, ON K1P 6L5

Gerald (Jay) Kerr-Wilson Julia Kennedy Tel: (613) 236-3882 Fax: (613) 230-6423 Parties Counsel Agent Shaw Communications Davies Ward Philips & Vineberg Gowlings LLP Inc. LLP 160 Elgin Street 1 First Canadian Place Suite 2600 44th Floor Ottawa, ON K1P 1C3 Toronto, ON M5X 1B1

Kent E. Thomson Ed Van Bemmel James Doris Tel: (613) 786-0212 Sarah Weingarten Fax: (613) 788-3500 Tel: (416) 863-0900 Fax: (416) 863-0871 TABLE OF CONTENTS

PART I — STATEMENT OF FACTS ...... 1 A. OVERVIEW...... 1 B. THE NATURE OF THE VALUE-FOR-SIGNAL REGIME...... 3 C. LEGISLATIVE FACTS...... 4 i. The Domestic Context...... 5 ii. The International Context...... 11 D. THE CRTC’S PREVIOUS POSITIONS ...... 15

PART II — QUESTION IN ISSUE ...... 16

PART III — STATEMENT OF ARGUMENT...... 16 A. STANDARD OF REVIEW...... 16 B. INTRODUCTION ...... 17 C. PRINCIPLES OF STATUTORY INTERPRETATION DEMAND A COHERENT INTERPRETATION OF STATUTES IN THE AREA OF RETRANSMISSION AND SIGNAL RIGHTS...... 18 i. Subordinate Legislative Bodies Are Limited to their Statutory Jurisdiction ...... 18 ii. Statutory Provisions Must Be Read Contextually and Purposively...... 20 iii. Interrelated Acts Must Be Read Harmoniously, Coherently and Consistently ...... 21 iv. Ancillary Statutes Are Presumed Not to Authorize Concurrent Regulation of Intellectual Property...... 23 D. THE PURPOSE AND STRUCTURE OF THE COPYRIGHT ACT...... 24 E. THE COPYRIGHT ACT RETRANSMISSIONS REGIME ...... 27 F. THE CRTC LACKS JURISDICTION UNDER THE BROADCASTING ACT, LACKS EXPERTISE IN THE SUBJECT MATTER AT ISSUE, AND IS NOT OWED DUE DEFERENCE...... 32 i. The CRTC Lacks Jurisdiction under the Broadcasting Act ...... 33 ii. The CRTC Is Not Expert in Valuing Private Rights in Retransmissions...... 37 G. CONCLUSION ...... 39

PART IV — SUBMISSIONS ON COSTS...... 40

PART V — ORDER REQUESTED ...... 40

PART VI — LIST OF AUTHORITIES ...... 41

PART VII — STATUTES AND REGULATIONS RELIED UPON...... 44 PART I — STATEMENT OF FACTS

A. OVERVIEW

1. The issue in this appeal is whether the Canadian Radio-Television and Telecommunications Commission (“CRTC”) can use its general powers under the Broadcasting Act to override a specific rights regime established and carefully balanced by Parliament under the Copyright Act. This question was the subject of a reference by the CRTC to the Federal Court of Appeal on the issue of whether it had jurisdiction to “invoke … market forces” and impose a “value-for-signal” regime in respect of subject-matter already governed by ss. 21 and 31 of the Copyright Act.

2. The CRTC’s proposed value-for-signal regime would allow a private local television station to impose blackouts of its programming unless cable television service providers (“BDUs”) pay a royalty for the right to retransmit the station’s signals. By contrast, the Copyright Act exempts retransmissions of local signals from royalties, and mandates that neither local nor distant signals can be blocked.

3. The majority of the Federal Court of Appeal, over a strong dissent by Justice Nadon, held that the CRTC had jurisdiction to establish the value-for-signal regime, finding that “Parliament has ranked the objectives of Canada’s broadcasting policy ahead of those statutory retransmission rights.” Reference: Decision of the Federal Court of Appeal, para. 40 Appellants’ Joint Record (“AR”), Vol. 1, Tab 3, p. 46

4. It is submitted that the majority made significant errors of law that led it to permit the CRTC to override the comprehensive legislative scheme established by Parliament in the Copyright Act for retransmissions by BDUs of free, over-the-air television signals.

5. By contrast, in dissent, Justice Nadon held that the CRTC’s proposed value-for-signal regime would be ultra vires because:

a) Parliament’s delegation of power to the CRTC under the Broadcasting Act was limited by the relevant provisions of the Copyright Act; - 2 -

b) The case law in the Supreme Court of Canada is clear that the Copyright Act is an exhaustive statutory regime;

c) Parliament clearly expressed its intention in s. 31 of the Copyright Act that royalties be paid for the retransmission of distant signals, but not for the retransmission of local signals. This exception could not be negated by the general requirement that a retransmission be “lawful under the Broadcasting Act” in s. 31(2)(b); and

d) The proposed CRTC regime was functionally equivalent to the retransmissions regime in the Copyright Act but would specifically override it. Reference: FCA Decision, paras. 63-81, 84-85 (AR 3, Vol. 1, pp. 54-60)

6. Cogeco Cable Inc. (“Cogeco”) respectfully submits that Justice Nadon was correct in concluding that the CRTC lacks the jurisdiction to create its proposed regime.

7. It is also noteworthy that Parliament and the Government of Canada (in its treaty-making powers) have repeatedly considered – and specifically rejected – giving broadcasters the right to block retransmissions of local or distant signals, or the right to collect royalties on retransmissions of local signals. The regime that the CRTC seeks to create here contradicts these principles, has all the fundamental indicia of copyright, and is regulated as such by Parliament under the Copyright Act in ss. 21 and 31.

8. Under the Copyright Act, Parliament deliberately declined to leave the value of retransmissions to “market forces”. Instead, Parliament exempted some retransmissions from royalties altogether, as here, and crafted a comprehensive compulsory licence regime for retransmissions of other copyright content, overseen by the Copyright Board, not the CRTC. Here the CRTC would appoint itself as the arbiter in place of the Copyright Board.

9. The federal legislative purpose of creating a non-market mechanism for retransmissions and of enabling access to copyright programming and denying exclusive rights to broadcasters is thus completely frustrated by the CRTC regime. - 3 -

B. THE NATURE OF THE VALUE-FOR-SIGNAL REGIME

10. On March 22, 2010, the CRTC announced its intention to create a new regime for broadcasters in relation to their local and distant television signals, subject to the issue herein of the CRTC’s jurisdiction.

Reference: Broadcasting Regulatory Policy CRTC 2010-167, paras. 151, 163 (AR 10, Vol. 2, pp. 30, 33)

11. The CRTC described the regime it proposed to implement in the following terms: “1. Licensees of private local television stations would choose whether i) they will negotiate with BDUs for the value of the distribution of their programming services, failing which they will be able to require deletion of the programming they own, or for which they have the exhibition rights, from all signals distributed in their market, or ii) they will continue to benefit from existing regulatory protections. …. 3. If a licensee of a private local television station chose option i): a) It would forego all existing regulatory protections related to the distribution of local television signals by BDUs, whether imposed by regulation or by condition of licence, including mandatory distribution and priority channel placement on analog basic, and simultaneous substitution. b) BDUs would be required, at the request of private local television stations, to delete any program owned by the licensee of that local television station or for which it has acquired exclusive contractual exhibition rights. c) Deletions would be exercised against the signal of any programming undertaking distributed by the BDU, whether foreign or domestic, affiliated or not, including that of the private local television station making the request. d) It could negotiate with a BDU for a fair value in exchange for the distribution of its programming service in lieu of the deletion rights set out in b) and c). e) Parties to the negotiation would be given a fixed period after the date on which the licensee of a private local television station chose option i) to conclude negotiations, during which the existing regulatory protections would continue to apply. This period could be shortened or extended by agreement between the parties. f) The Commission would minimize its involvement in the terms and conditions of the resulting agreements, intervening only in cases where there is evidence parties are not negotiating in good faith, and would consider acting as arbitrator only where both parties make a request.” Reference: CRTC Broadcasting Order 2010-168, para. 7 (AR 2, Vol. 1, pp. 5-6) - 4 -

12. Thus, the CRTC regime would give private broadcasters the right to unilaterally block BDUs from retransmitting television signals – whether local or distant – or to negotiate and charge retransmission fees to BDUs for the retransmission of those signals. This right is available only to broadcasters who own a program or have an exclusive right to disseminate it – namely, copyright owners and their exclusive licensees. If the broadcaster chose to negotiate a fee and the parties did not agree on a value for that signal, the CRTC could arbitrate the issue.

13. To resolve the question of its jurisdiction, on March 22, 2010, the CRTC referred the following question of law to the Federal Court of Appeal pursuant to ss. 18.3(1) and 28(2) of the Federal Courts Act: “Is the Commission empowered, pursuant to its mandate under the Broadcasting Act, to establish a regime to enable private local television stations to choose to negotiate with broadcasting distribution undertakings a fair value in exchange for the distribution of the programming services broadcast by those local stations?”

Reference: CRTC Broadcasting Order 2010-168, para. 10 (AR 2, Vol. 1, p. 7)

C. LEGISLATIVE FACTS

14. Both Parliament in exercising its legislative powers and the Canadian Government in exercising its treaty-making powers long ago recognized the importance and sensitivity of appropriately allocating rights in retransmissions. Both Parliament and the Canadian Government have consistently considered private rights in retransmissions to be an issue dealt with exclusively under the copyright regime by way of legislation and treaty negotiations.

15. For more than a half-century, Parliament has considered whether to give authors or broadcasters a right to block retransmissions by BDUs. It has repeatedly refused. Instead, in ss. 21 and 31 of the Copyright Act, Parliament has created a compulsory licence for the programs carried in distant signals, an exception for programs carried in local signals, and no rights whatsoever against BDUs for the signals themselves. As the legislative history reveals, these were deliberate limitations to ensure the continued access of Canadians to retransmitted content. These limitations were created by Parliament as a matter of broadcasting policy deliberately and specifically via the Copyright Act. They are a complete code with all valuation issues to be addressed according to regulatory criteria in Copyright Board proceedings. - 5 -

16. Through more than a decade of negotiations on the possibility of a global broadcast treaty, the Government of Canada has repeatedly demanded an opt-out power for countries which do not accord an exclusive retransmission right. The administrative decision of the CRTC to enact its regime would override this longstanding treaty-making position because it would prevent Canada from obtaining the benefit of its own proposed opt-out clause.

i. The Domestic Context

17. Parliament has never left the creation of copyrights to the vagaries of administrative tribunals such as the CRTC. In amending the Copyright Act, it has always followed a careful, consistent and extensive legislative process. For more than a half century, Parliament and its delegates have considered in numerous reports whether to grant a private right in retransmissions to broadcasters. These reports consistently noted public interest concerns associated with the creation of a private right for broadcasters to authorize the retransmission of local or distant signals. As a result of these concerns, Parliament has declined repeatedly to enact legislation providing for the very rights that the CRTC wishes to create. Reference: 1957 – Royal Commission on Patents, Copyright, Trade Marks and Industrial Design, Report on Copyright AR 13 1971 – Economic Council of Canada, Report on Intellectual and Industrial Property AR 14 1977 – A.A. Keyes and C. Brunet, Copyright in Canada: Proposals for a Revision of the Law AR 15 1980 – S.J. Liebowitz, Copyright Obligations for Cable Television: Pros and Cons AR 16 1984 – Robert E. Babe and Conrad Winn, Broadcasting Policy and Copyright Law: An Analysis of a Cable Rediffusion Right AR 17 1984 – From Gutenberg to Telidon: A White Paper on Copyright: Proposals for the Revision of the Canadian Copyright Act AR 18 1985 – A Charter of Rights for Creators: Report of the Sub-Committee on the Revision of Copyright AR 19 1986 – Government Response to A Charter of Rights for Creators AR 20 2001 – Consultation Paper on the Application of the Copyright Act’s Compulsory Retransmission Licence to the Internet AR 21 2001 – A Framework for Copyright Reform AR 22 2002 – Section 92 Report: Supporting Culture and Innovation AR 23

18. In 1984, the federal Ministers of Consumer and Corporate Affairs and Communications identified the question of whether broadcasters should have a right in cable retransmissions as one of two key issues for copyright reform. They decided against granting such a right, stating: “The provision of a right in broadcasts could add an unnecessary layer of proprietary rights to already-protected material. Such an extension could complicate the exploitation of material, and add to negotiating costs of both owners and users. Although broadcasts - 6 -

are protected in a few other countries, the copyright conventions do not require Canada to provide this protection. For these reasons the new Act will not protect broadcasts.” [Emphasis added.]

Reference: From Gutenberg to Telidon (AR 18, Vol. 3, pp. 79, 81)

19. In 1985, the federal Sub-Committee on Communications and Culture recommended that both the local and distant signals be the subject of a non-exclusive remuneration right, with local signals at a lower remuneration level. However, the Sub-Committee also considered the possibility that rights of a broadcaster in its signals could be addressed by the CRTC under the Broadcasting Act and firmly rejected it: “The right of transmission will, at first, appear redundant: regulations made under the Broadcasting Act already prohibit the simultaneous re-broadcast of a broadcast. The Sub- Committee, however, believes that regulations adopted for reasons of broadcasting policy are not the proper place to determine intellectual property rights. The right to transmit a broadcast should therefore be provided in the new Copyright Act.” [Emphasis added. Footnotes omitted.]

Reference: A Charter of Rights for Creators (AR 19, Vol. 3, pp. 109-10)

20. Last, the Sub-Committee strongly recommended, directly contrary to the proposed CRTC regime, that copyright holders not be able to block retransmissions: “Providing exclusive rights to copyright owners to authorize retransmissions would … give copyright owners the legal right to stop all retransmission activities by refusing authorization altogether. Copyright owners should not be permitted to stop retransmission because this activity is too important to Canada’s communications system.

“The right of retransmission to be provided in the revised law should be limited by a compulsory licence, with tariffs to be established by the Copyright Appeal Board.” [Emphasis added.]

Reference: A Charter of Rights for Creators (AR 19, Vol. 3, pp. 118-19)

21. In 1988, Parliament came to a landing on the issue of what rights should be accorded in retransmissions. It established a narrow retransmission right for authors in s. 31 of the Copyright Act. It accepted the Ministers’ view that no exclusive right be granted to broadcasters. It also accepted the recommendation that no one, not even authors, should be able to block BDUs from retransmitting a signal. Rather, Parliament provided that in exchange for giving up the right to block, authors would be compensated by a compulsory licence for the retransmission of - 7 - programs carried in distant signals. Last, overriding the 1985 recommendation of the Sub- Committee, Parliament elected to leave local signals free of royalties. Reference: Government Response to A Charter of Rights (AR 20, Vol. 3, pp. 124-27) Copyright Act, R.S.C., 1985, c. C-42 (as amended), s. 31 Appellant’s Authorities (“AA”), Tab 2

22. In 1988, Parliament also identified its chosen delegate for determining the fair value of the programs contained in such signals. It appointed the Copyright Board, not the CRTC, to fix the value of the programs carried in distant signals. Through regulation, the Canadian Government established mandatory criteria for the Copyright Board to assess in the retransmission setting. This included the requirement that the Copyright Board consider “the effects on the retransmission of distant signals in Canada of the application of the Broadcasting Act and regulations made thereunder”. Reference: Government Response to A Charter of Rights (AR 20, Vol. 3, pp. 124-27) Copyright Act, supra, ss. 31, 66-66.91, 71-76, 89-88, 90(a) AA 2 Retransmission Royalties Criteria Regulations, SOR/91-690, s. 2(a) AA 9

23. Parliament also recognized the possibility that small BDUs such as those serving remote communities would be prejudiced by having to pay a fee for distant signals. Accordingly, it directed in the Copyright Act that the Copyright Board fix a preferential rate for small BDUs in retransmission proceedings. Reference: Copyright Act, supra, s. 68.1(4) AA 2

24. As a result of the introduction of s. 31 of the Copyright Act in 1988, broadcasters receive distant signal retransmission royalties in their capacity as authors. They do not receive local signal retransmission royalties as a direct result of Parliament’s deliberate decision not to grant a right in, nor place a value on, the retransmission of local broadcast signals by BDUs. Reference: Copyright Act, supra, s. 2, “compilation” AA 2 Retransmission of Distant Radio and Television Signals, in Canada, in 1998, 1999, and 2000 (Re) (2000), 5 C.P.R. (4th) 440 at 447 (Cpy. Bd.) AA 38

25. In 1997, Parliament again considered whether broadcasters should be given exclusive rights in retransmissions, including the right to block BDUs from retransmitting their signals. Despite intense lobbying, it rejected the broadcasters’ requests. Instead, it gave them a limited copyright to authorize another broadcaster to retransmit a communication signal. Crucially, Parliament exempted BDUs from the broadcasters’ limited new right to authorize a - 8 - retransmission by removing BDUs from the s. 2 definition of “broadcaster”. (This point was missed completely by the majority below, which held that Parliament had granted this right.) Reference: Copyright Act, supra, ss. 2 “broadcaster”, “copyright”, 21(1)(c) AA 2 FCA Decision, para. 33 (AR 3, Vol. I, pp. 42-43) Legislative Summary of Bill C-32 (AR 26, Vol. 4, pp. 52, 78-79, 85, 87) Testimony of Susan Katz (Canadian Heritage) (AR 31, Vol. 6, pp. 5-7) Written Submissions of Canadian Association of Broadcasters (AR 41, Vol. 7, pp. 49-56; AR 43, Vol. 7, pp. 72, 77) Written Submissions of CTV (AR 42, Vol. 7, p. 68) Written Submissions of WIC (AR 37, Vol. 7, p. 15) Written Submissions of British Columbia Association of Broadcasters (AR 38, Vol. 7, pp. 18, 20) Testimony of Sheila Copps, Minister of Canadian Heritage (AR 44, Vol. 7, pp. 93-94) Testimony of Michael McCabe and Cynthia Rathwell (Canadian Association of Broadcasters) (AR 44, Vol. 7, p. 133) Testimony of Victor Rabinovitch, Assistant Deputy Minister of Canadian Heritage (AR 44, Vol. 7, pp. 157, 159) Testimony of Lise Bacon, Chair of Standing Senate Committee, at 984 (AR 44, Vol. 7, p. 169)

26. The policy considerations behind Parliament’s decision to limit rights in retransmissions were reaffirmed in 2001 in a joint report by the Ministries of Canadian Heritage and Industry:

“In its 1985 report A Charter of Rights for Creators, the Sub-Committee on Copyright Revision of the Standing Committee of Communications and Culture concluded that ‘Although the Sub-Committee does not in general favour compulsory licensing, it sees no other possibility in this case’. The Sub-committee was driven to this conclusion by its belief that the introduction of a new, broader communication right must not impair the vital role which the retransmission of over-the-air signals played in the Canadian broadcasting system. This vital role continues today with over 75% of Canadian households relying upon cable and DTH satellite broadcasting distribution undertakings (BDUs) for access to a wide range of over-the-air signals. This is of especially great importance in rural and remote areas of the country where many Canadians would otherwise have extremely limited, if any, access to over-the-air signals.” [Emphasis added. Footnotes omitted.]

Reference: Consultation Paper on Internet-Based Retransmission (AR 21, Vol. 3, p. 136)

27. In 2002, senior officials from Industry and Heritage testified before Parliamentary Committees on the impact of extending the retransmission regime to the Internet. In their joint presentations, they emphasized that the decision to limit rights in broadcast signals was intended to fix a stable broadcasting policy in the interest of the Canadian public via the Copyright Act: “The nature of copyright is such that there is exclusivity; there is control over works. In order for users to have access to creators’ works, there needs to be clearance of those works. - 9 -

There are exceptions, however, in the Copyright Act that are not so much in the interest of users, but in the interest of public policy, the overall interest of the public. We have recognized exceptions with regard to fair dealing and educational use, and these exceptions have been accepted by rights holders, as a general rule. Of course they don't like them, and we understand that. Nevertheless, copyright is about balancing interests between rights holders and users.

The compulsory licence that section 31 addresses in the Copyright Act is a sort of exception. It allows for remuneration of rights holders, but it takes away the control. The fact is that the nature of this particular exception, this compulsory licence, is to deal again with public policy, with overall public interest.

The reason we have a compulsory licence in the Copyright Act—as objectionable as it may be to some rights holders—is to deal with the broader interests of broadcast policy. It would be too difficult for cable and other retransmitters to clear all the rights that are inherent in television and radio programming—the many levels of rights that start out with the creator of the programming and the producer, right through to the broadcaster.

In order to ensure that the Canadian public has access to retransmission, to signals being transmitted across the country, it was felt desirable to have a compulsory licence to ensure that this broadcast policy was respected. In fact, it has been accepted. It was accepted with regard to cable and in fact has been extended to other forms of retransmission—satellite retransmission, for example.

The question before us is not so much whether a compulsory licence is a desirable thing—we have heard from various witnesses before you that it is not desirable in principle. But as a matter of policy, the compulsory licence exists now, and the real question is whether it should be extended to the Internet.”

…

“Retransmission of television and radio broadcast signals being [sic] a fundamental feature of Canadian broadcast policy. The nature of Canada is such that retransmission is essential to ensure that television and radio programming reach all parts of the country.

The key point underlying this issue is that retransmission operates in a copyright environment. Copyright involves a number of rights. Copyright owners have exclusive rights to prevent reproduction or — what is relevant in this case — communication of their content. In this case, it would be television and radio programming. The concern with copyright is that there is a need to clear copyright in television programming content. That is ordinarily done through authorization by the individual rights holder. On occasion, there is a need for exceptions to the requirement to clear those rights in the overall public interest. A compulsory licence is one of those limitations. That is the case here.” [Emphasis added.]

Reference: Testimony of Bruce Stockfish, Director General, Department of Canadian Heritage (AR 44, 48, Vol. 8, pp. 124, 198-99) - 10 -

28. In 2009, the Ministers of Industry and Heritage engaged in a series of Canada-wide public consultations on amendments to the Copyright Act. Both the Canadian Association of Broadcasters and CTVGlobemedia asked the government to grant broadcasters a full right to control distribution of their signals by others. CTVGlobemedia also asked that at a minimum, compensation be given under s. 31 for local as well as distant signals. Reference: CAB submission to the 2009 Copyright Consultation (AR 50, Vol. 9, p. 28) CTV submission to the 2009 Copyright Consultation (AR 51, Vol. 9, pp. 33, 37)

29. Following this consultation, a new Act to Amend the Copyright Act was introduced in Parliament on June 2, 2010. This draft legislation did not include the expanded rights sought by broadcasters. Nor does the reintroduced draft text of Bill C-11, An Act to Amend the Copyright Act, which received first reading on September 29, 2011. Reference: Bill C-32, ss. 9, 12-16, 22, 34, creating new ss. 19.1, 19.2, 29.23, 30.04, 30.9 and amending ss. 15, 19, 20, and 22 of the current Copyright Act AA 10 Bill C-11, ss. 9, 12-16, 22, 34, creating new ss. 19.1, 19.2, 29.23, 30.04, 30.9 and amending ss. 15, 19, 20, and 22 of the current Copyright Act AA 11

30. Parliament’s longstanding treatment of copyright reform as a legislative and executive responsibility has also been formalized in the legislation itself. Parliament has clearly identified those persons tasked with studying and proposing new copyrights. Under the Copyright Act and the Department of Industry Act, the Minister of Industry is required to balance nine key objectives in developing copyright policy and in reporting to Parliament on the provisions and operations of the Copyright Act. Under the Department of Canadian Heritage Act, the Heritage Minister has complementary jurisdiction over the formulation of cultural policy in relation to copyright. The Minister of Industry has established the Intellectual Property Policy Directorate, which has undertaken eight separate economic impact studies in the past decade to assess the consequences of various potential copyright reforms. Senior officials at the Intellectual Property Policy Directorate and the Heritage Ministry’s Copyright Policy Branch have represented Canada in international negotiations over broadcasting copyrights since at least 2001. Reference: Copyright Act, supra, ss. 2 “Minister”, 92 AA 2 Department of Industry Act, S.C. 1995, c. 1, ss. 4-6 AA 4 Department of Canadian Heritage Act, S.C. 1995, c. 11, s. 4(2)(j) AA 3

31. The new Bill C-11 would strengthen this process by creating an ongoing statutory review process overseen by a specialized Parliamentary committee struck every five years. Reference: Copyright Act, supra, s. 92 AA 2 Bill C-11, s. 58, amending s. 92 of the current Copyright Act AA 11 - 11 -

32. In sum, there is a clear and powerful record of Parliament asserting control over what rights ought to be granted in retransmissions of broadcasts. In each case, Parliament concluded that it was not in the public interest to grant broadcasters a right that might interfere with the “vital role” played by the retransmission of over-the-air signals in the Canadian broadcasting system. To encourage retransmission of local signals, it decided to exclude local signals from its compensation regime. Parliament appointed the Copyright Board to assess fair value in retransmissions, and a special Parliamentary Committee and the Ministers of Industry and Canadian Heritage to review the impacts of copyright reform on the public interest.

33. Parliament has made its legislative intention unmistakably clear: (a) Broadcasters’ s. 21 signal right does not apply to retransmissions by BDUs;

(b) BDUs must pay compulsory licence royalties for retransmissions of distant signals only, with local signals deliberately exempted;

(c) The jurisdiction to value the right to retransmit the distant signal belongs to the Copyright Board, not the CRTC;

(d) Broadcasters cannot block retransmissions of local or distant signals; and

(e) The question of whether and to what extent broadcasters should enjoy any new economic rights is a matter to be dealt with by Parliament and the Ministers of Industry and Canadian Heritage as a part of copyright policy.

ii. The International Context

34. The Government of Canada in its treaty-making powers has also consistently demonstrated its determination not to grant broadcasters an exclusive right over retransmissions.

35. On the international level, copyright in retransmissions is governed by the 1971 revision of the Berne Convention (“Paris Act”). Article 11bis provides authors of literary and artistic works with the exclusive right of authorizing “any … rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one”. This right applies to authors (in other words, the creators of programs), not broadcasters. Subsection - 12 -

(2) of Article 11bis specifically permits member countries to limit this right by allowing “competent authorities” to fix “equitable remuneration” for these uses. Reference: Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971, Art. 11bis) (AR 86, Vol. 12, p. 136)

36. Canada did not accede to the Paris Act in 1971. Rather, during free trade negotiations with the United States in 1987, Canada declared its intention to implement a strictly confined retransmission right for authors, with no fee to be paid to authors or broadcasters for retransmissions of local signals: “The size and proximity of the American market together with the as yet embryonic nature of purely Canadian programming and the physical size of our country have meant that Canada has become ‘highly cabled’ and constitutes a net importer. This typically Canadian situation has had to be taken into consideration when putting together a policy in respect of cable distribution.

[…]

“the Government intends to proceed as follows once the new legislation is passed:

1. local signals, which are still to be defined, will be excluded from the chosen arrangements; 2. the study of the matter will be entrusted to the Copyright Appeal Board which will report to the Government on the arrangements to be adopted. […] 4. the tariffs laid down by the Copyright Appeal Board will be subject to the right of review of the Governor in Council.” [Emphasis added.]

Reference: Executive Committee of the International Union for the Protection of Literary and Artistic Works, Doc. # B/EC/XXVII/11, March 20, 1987 (AR 92, Vol. 13, pp. 9-11)

37. Following the conclusion of its negotiations, Canada signed the Canada-U.S. Free Trade Agreement, which dealt with private rights in retransmissions. Article 2006 created a mandatory right of equitable remuneration for the retransmission of programs or works in distant signals and a mandatory right of exclusivity in program signals not intended for free, over-the air reception, but did not require the copyright law of either Party to provide a right of exclusivity or equitable remuneration for the retransmission of programs or works in local signals. Reference: Canada-United States Free Trade Agreement, Article 2006 (AR 88, Vol. 12, pp. 162-64)

38. The FTA was incorporated into domestic law on January 1, 1989 through the passage of Bill C-2, the Canada-U.S. Free Trade Agreement Implementation Act. This Act implemented all of the mandatory rights provided for in Article 2006. It did not incorporate any of the further - 13 - rights permitted by Article 2006 enabling remuneration for the retransmission of local signals, as the CRTC would do if allowed to implement its regime. Reference: Canada-U.S. Free Trade Agreement Implementation Act, S.C. 1988, c. 65, ss. 61- 65 (AR 30, Vol. 5, pp. 180-86)

39. Canada only acceded to the Paris Act in 1993, when full accession was made a condition of Canada’s membership in the World Trade Organization. Reference: TRIPs Agreement, Art. 9(1) (AR 90, Vol. 12, p. 181)

40. While granting treaty rights to broadcasters in their signals was discussed as early as 1928, this right was not the subject of a treaty until the 1961 passage of the Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the “Rome Convention”), which provided for certain “neighbouring rights” to be granted to performers, producers of sound recordings, and broadcasters under copyright legislation. Reference: Stewart, International Copyright and Neighbouring Rights (2nd Ed., 1989, at 8.01) AA 46

41. Article 13 of the Rome Convention provides that broadcasters are to be provided with limited rights in their signals, including the right “to authorize or prohibit … the rebroadcasting of their broadcasts”. Due to the Article 3 definition of “broadcasting” and “rebroadcasting”, the Article 13 rights of broadcasters do not cover cable retransmissions of their broadcasts. Reference: Rome Convention, Arts. 3, 13 (AR 89, Vol. 12, pp. 167-70) Ficsor, Guide to the Copyright and Related Rights Treaties Administered by WIPO, RC-13.2 AA 44

42. Canada did not become a signatory to the Rome Convention until 1998, following the passage of Bill C-32. Bill C-32 created a copyright in “communication signals” and thus fulfilled the Rome Convention minima. The legislative summary for Bill C-32 indicates that its major purpose was to enable Canada to adhere to the Rome Convention, including in the category of “broadcast signals”. As described at paragraph 25 above, while broadcasters specifically sought an exclusive right over the retransmission of their signals by BDUs in committee hearings, this was not among the 123 amendments made to Bill C-32 in committee, nor the 15 amendments made at the report stage. Reference: Legislative Summary dated March 21, 1997, LS-254E (AR 26, Vol. 4, pp. 40-41, 48, 52-53, 85, 87-88) - 14 -

43. Since at least 2001, the Government of Canada has made numerous official statements opposed to recognizing an exclusive retransmission right for broadcasters: “The Delegation of Canada reiterated its view that a comprehensive right of retransmission should not be granted. In respect of free over-the-air terrestrial broadcast, for instance, no right of cable retransmission should be granted. In respect of certain forms of broadcasting, however, there could be a right of retransmission. Encrypted signals were such an example. Further discussions with different stakeholders at the national level were planned before the next session of the Standing Committee. It should be noted, however, that if a right of retransmission was granted to broadcasters, they might enjoy higher protection than other categories of rightsholders who were not granted such an exclusive right. The right of retransmission for certain categories of rightsholders was reduced to a right to remuneration or a compulsory license in many countries.” [Emphasis added.]

Reference: Submission by Canada, Proposed WIPO Treaty, SCCR/6/4 (AR 94, Vol. 13, p. 29)

44. In 2007, Canada explained its international opposition to the granting of an exclusive retransmission right – including a right to block – by referring to domestic policy concerns: “Canada is quite concerned that should the treaty contain an exclusive right of retransmission, there could well be additional costs to retransmitting over the air television that might at least in part be passed on to consumers. In addition, in the event that there are such increased consumer costs, consumer spending may be diverted from optional cablecasts and specialty satellite services.” [Emphasis added.]

Reference: Submission by Canada, Proposed WIPO Treaty, SCCR/S2/3 (AR 101, Vol. 13, p. 82)

45. The above is only one of numerous official submissions made by Canada on a proposed treaty for the protection of broadcasting organizations. In all of these submissions, Canada has consistently and persistently opposed the granting of an exclusive retransmission right and has supported a carve-out or reservation power for any member signing the WIPO Broadcasting Treaty. It has done so in a formal proposal as recently as March 2011. Reference: Submissions by Canada on the Proposed WIPO Treaty (AR 92-102, 121)

46. Ironically, if the value-for-signal regime were to be implemented, Canada would be precluded from relying upon its own proposed opt-out clause at the international level. Broadcasters would obtain an exclusive right to authorize BDUs to retransmit local signals and would be entitled to negotiate a fee for all local programming, including material in the public domain. Such a consequence would be not only inconsistent with Canada’s international positions; it would undermine the Government’s treaty-making powers. - 15 -

47. Canada’s position on the international stage has been clear. For decades, via different governments, it has displayed the consistent determination to deny broadcasters the right to block or receive remuneration for the retransmission of local signals. This international stance is consistent with the detailed scheme set out domestically in the Copyright Act. It would be a jurisdictional error for the CRTC, an administrative body that is itself statutorily created by Parliament, to override these decisions of Parliament and the executive.

D. THE CRTC’S PREVIOUS POSITIONS

48. The CRTC has repeatedly recognized that the retransmission rights it seeks to create are a matter of copyright and that it does not have jurisdiction to create or value copyright. It has also held that the Copyright Board is the statutory body with expertise in valuing retransmissions.

49. As an example, in 1993, the CRTC declined to implement a “fee for carriage” regime: “The Commission has carefully considered the opinions expressed by the parties on the CAB proposal. The Commission is satisfied that its jurisdiction to require each element of the broadcasting system to contribute to Canadian programming is clear, and that the nature, extent and mechanism of that contribution is entirely within its discretion. However, the Commission is of the view that explicit recognition of a right to compensation for the retransmission of local signals is essentially a copyright issue and would most appropriately be dealt with by bodies other than itself.” [Emphasis added.]

Reference: Broadcasting Public Notice CRTC 1993-74 (AR 64, Vol. 9, pp. 175-78)

50. In 1999, the CRTC acknowledged that valuation of retransmission royalties is an issue of copyright law properly dealt with by the Copyright Board, not by the CRTC: “The Commission is not persuaded that the Order should be amended because of the financial impact that could ensue from the triggering of retransmission royalties for distant signals. It notes that the Copyright Board is the appropriate authority to examine the financial impact on distribution undertakings of distributing TVA’s service. The Commission further notes that the Copyright Board has extensive expertise in determining the value of distant signals in special circumstances. Insofar as affected distribution undertakings judge it appropriate, the Commission considers that they should address questions regarding retransmission royalties triggered by the retransmission of TVA’s signal to the Copyright Board.” [Emphasis added.]

Reference: Broadcasting Public Notice CRTC 1999-27 (AR 67, Vol. 10, pp. 32-33)

51. In 2001, the CRTC again recognized that retransmission rights were not within its jurisdiction, stating: - 16 -

“The Commission notes that the concerns expressed by the cable industry appear to assume that the regulations governing copyright payments would not be amended. Given that copyright is not within the Commission’s jurisdiction, it will be up to the copyright collectives to update their royalty payment regimes to reflect the new regional licensing model.” [Emphasis added.]

Reference: Broadcasting Public Notice CRTC 2001-59 (AR 68, Vol. 10, p. 42)

52. Thus, the CRTC itself has recognized repeatedly that: (a) rights of retransmission in local and distant signals are governed by copyright law and outside of its jurisdiction; and

(b) the Copyright Board – not the CRTC – is the appropriate authority to value retransmissions.

PART II — QUESTION IN ISSUE

53. The Reference Question is: “Is the Commission empowered, pursuant to its mandate under the Broadcasting Act, to establish a regime to enable private local television stations to choose to negotiate with broadcasting distribution undertakings a fair value in exchange for the distribution of the programming services broadcast by those local television stations?”

54. Cogeco respectfully submits that the answer to the Reference Question is “No”.

PART III — STATEMENT OF ARGUMENT

A. STANDARD OF REVIEW

55. Subsection 18.3(1) of the Federal Courts Act provides for a reference on any question or issue of law or jurisdiction. The Federal Court of Appeal’s decision involved a determination of the jurisdiction of the CRTC over the creation of a private right in retransmitted signals. Accordingly, that decision is to be reviewed on the basis of correctness. Reference: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at paras. 51, 55, 61 AA 22 Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1 SCR 476 at paras. 9-19 AA 13 ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), [2006] 1 S.C.R. 140 at paras. 21-32 AA 12 - 17 -

B. INTRODUCTION

56. It is submitted that the majority of the Federal Court of Appeal committed three crucial errors of law.

57. First, the majority departed from the modern approach to statutory interpretation by reading the s. 31(2)(b) requirement that a retransmission be “lawful under the Broadcasting Act” in isolation, and without due regard to the general and specific goals of the Copyright Act. By bypassing Parliament’s many considerations of the policy issues at stake, the majority misconstrued the scope and purpose of this passage. It was never intended to give the CRTC a back door to implement the very right Parliament repeatedly declined to grant.

58. Second, as Justice Nadon recognized in his dissent, the requirement that a retransmission be “lawful under the Broadcasting Act” must be read alongside the other conditions in s. 31(2), which set up a scheme whereby “royalties can be imposed on persons retransmitting distant signals but cannot be imposed on persons retransmitting local signals”. Paragraph 31(2)(b) does not authorize the CRTC to override the other conditions of s. 31(2). Since each of these conditions is a manifestation of Parliamentary policy, the CRTC cannot override them through its licensing powers, particularly when the effect is to reverse the underlying policy of the section. To do so would be to effectively extinguish a copyright exception created by Parliament. Reference: FCA Decision, paras. 32-40, 52-71 (AR 3, Vol. 1, pp. 42-46, 50-56)

59. Third, the majority decision misconstrued s. 21 of the Copyright Act. It held at para. 33 that s. 21 grants broadcasters the exclusive right to authorize retransmissions by BDUs. This is a fundamental error. Parliament exempted BDUs from this right by carving them out of the s. 2 definition of “broadcaster”. This carve-out demonstrates Parliament’s considered decision not to grant broadcasters a right to authorize retransmissions by BDUs. It complements Parliament’s decision in s. 31 not to give authors the right to block retransmissions of local or distant signals. The majority’s error demonstrates that it did not correctly review the legislative history, which demonstrates in painstaking detail that Parliament’s decision to deny broadcasters this right was a matter of broadcasting policy exercised through the Copyright Act. The CRTC regime would reverse Parliament’s decision by giving broadcasters the right to block a retransmission. - 18 -

C. PRINCIPLES OF STATUTORY INTERPRETATION DEMAND A COHERENT INTERPRETATION OF STATUTES IN THE AREA OF RETRANSMISSION AND SIGNAL RIGHTS

i. Subordinate Legislative Bodies Are Limited to their Statutory Jurisdiction

60. A subordinate legislative body such as the CRTC has only the jurisdiction granted to it by statute. Reference: Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at 33 AA 24

61. A broad objects provision is not a power-conferring provision. When, as in this reference, an administrative body seeks to claim jurisdiction by necessary implication, it must connect to an existing statutory power. The three principal cases on the point are the decisions of this Court in Barrie Public Utilities, ATCO, and Bell Canada (2009). Reference: Barrie Public Utilities, supra AA 13 ATCO Gas and Pipelines Ltd., supra AA 12 Bell Canada v. Bell Aliant Regional Communications, [2009] 2 S.C.R. 764 AA 14

62. In Barrie Public Utilities, the issue was whether the CRTC could make an order granting cable companies access to certain utilities’ power poles. The CRTC had relied on Canadian telecommunications policy objectives to ground its jurisdiction. Gonthier J., speaking for the majority of this Court, held: “The consideration of legislative objectives is one aspect of the modern approach to statutory interpretation. Yet, courts and tribunals must invoke statements of legislative purpose to elucidate, not to frustrate, legislative intent. In my view, the CRTC relied on policy objectives to set aside Parliament’s discernable intent as revealed by the plain meaning of s. 43(5), s. 43 generally and the Act as a whole. In effect, the CRTC treated these objectives as power-conferring provisions. This was a mistake.” [Emphasis added.]

Reference: Barrie Public Utilities at paras. 42-43 AA 13

63. In ATCO, the issue was whether the Alberta Energy and Utilities Board had jurisdiction to allocate proceeds from the sale of a public utility’s buildings and land to rate-paying customers. Bastarache J. concluded that no express legislative provision granted the Board the power to allocate the proceeds of an asset sale, and then considered whether such a power could be implied by two isolated provisions: “The intended meaning of these two provisions, however, is lost when the provisions are simply read in isolation as proposed by the City. These provisions on their own are vague and open-ended. It would be absurd to allow the Board an unfettered discretion to attach any condition it wishes to an order it makes. Furthermore, the concept of ‘public interest’ - 19 -

found in s. 15(3) is very wide and elastic; the Board cannot be given total discretion over its limitations…” [Citations omitted.] [Emphasis added.]

Reference: ATCO at para. 46 [Also see paras. 48-50, 58-60] AA 12 Also see Canada (Wheat Board) v. Canada (Attorney General), [2008] 2 F.C.R. 87 at paras. 36-44, 48 (F.C.T.D.), aff’d 2008 FCA 76 AA 18

64. Additionally, this Court noted that inferring jurisdiction is less often justified for “broadly drawn powers” than “narrowly drawn powers”: “The City seems to assume that the doctrine of jurisdiction by necessary implication applies to ‘broadly drawn powers’ as it does for ‘narrowly drawn powers’; this cannot be. The Ontario Energy Board in its decision in Re Consumers’ Gas Co., E.B.R.O. 410- II/411-II/412-II, March 23, 1987, at para. 4.73, enumerated the circumstances when the doctrine of jurisdiction by necessary implication may be applied:

a. [when] the jurisdiction sought is necessary to accomplish the objectives of the legislative scheme and is essential to the Board fulfilling its mandate;

b. [when] the enabling act fails to explicitly grant the power to accomplish the legislative objective;

c. [when] the mandate of the Board is sufficiently broad to suggest a legislative intention to implicitly confer jurisdiction;

d. [when] the jurisdiction sought must not be one which the Board has dealt with through use of expressly granted powers, thereby showing an absence of necessity; and

e. [when] the Legislature did not address its mind to the issue and decide against conferring the power upon the Board.

“In light of the above, it is clear that the doctrine of jurisdiction by necessary implication will be of less help in the case of broadly drawn powers than for narrowly drawn ones. Broadly drawn powers will necessarily be limited to only what is rationally related to the purpose of the regulatory framework….” [Emphasis added.]

Reference: ATCO at paras. 73-74 AA 12

65. In this case, a value for signal regime is not “essential to the Board fulfilling its mandate”, pursuant to point (a) from ATCO above. On the contrary, as indicated at paragraphs 48 to 52 hereof, the CRTC has repeatedly held that copyright is outside its jurisdiction and expertise. More important, this is not a case where “the legislature did not address its mind to the issue and decide against conferring the power to the Board”, pursuant to point (e) in ATCO. On the contrary, as indicated at paragraphs 14 to 47 hereof, Parliament repeatedly considered the - 20 - issue and chose to deal with it exhaustively under the special retransmissions regime in the Copyright Act with the Copyright Board acting as its delegate for determining fair value.

66. In Bell Canada (2009), this Court considered whether the Telecommunications Act granted the CRTC the authority to direct monies stored in the deferral accounts of telecommunications carriers to be used to improve accessibility for individuals with disabilities and for broadband expansion, with any unexpended funds credited back to certain current residential subscribers. Justice Abella stated for the Court: “The circumstances of Barrie Public Utilities are entirely distinct from those at issue before us. Here, we are dealing with the CRTC setting rates that were required to be just and reasonable, an authority fully supported by unambiguous statutory language. […]

“Unlike ATCO, in the case before us, the CRTC’s rate-setting authority and its ability to establish deferral accounts for this purpose are at the very core of its competence. The CRTC is statutorily authorized to adopt any method of determining just and reasonable rates. Furthermore, it is required to consider the statutory objectives in the exercise of its authority, in contrast to the permissive, free-floating direction to consider the public interest that existed in ATCO.” [Emphasis added.]

Reference: Bell Canada (2009) at paras. 50, 53 AA 14

67. As will be submitted at paras. 104 to 116 below, the creation and arbitration of private rights in retransmissions of broadcast signals is not at the core of the CRTC’s competence, nor is it supported by unambiguous statutory language. Rather, in applying established principles of statutory interpretation, it will be established that this subject matter is exhaustively dealt with under the Copyright Act regime.

ii. Statutory Provisions Must Be Read Contextually and Purposively

68. The applicable principles of statutory interpretation require a more nuanced approach to the Reference question than was presented by the majority decision below. The Broadcasting Act must be placed beside the Copyright Act, and the two statutes must be interpreted harmoniously. It is not sufficient to consider the purposes of the Broadcasting Act alone.

69. As stated in Bell ExpressVu, which considered the interrelationship of the Radiocommunication Act, the Broadcasting Act, and the Copyright Act: “In Elmer Driedger’s definitive formulation, found at p. 87 of his Construction of Statutes, 2nd ed. (1983): - 21 -

‘Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.’

“Driedger’s modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings. I note as well that, in the federal legislative context, this Court's preferred approach is buttressed by s. 12 of the Interpretation Act, which provides that every enactment ‘is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects’.

“The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article ‘Statute Interpretation in a Nutshell’, ‘words, like people, take their colour from their surroundings’. This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger’s principle gives rise to what was described in R. v. Ulybel Enterprises Ltd. as ‘the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter’” [Emphasis added. Citations omitted.]

Reference: Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559 at paras. 26-27 AA 15

70. The entire context of a provision, including its legislative evolution, must be considered before an attempt at interpretation is made. Reference: Bell ExpressVu at paras. 29-30 AA 15 Canada 3000 Inc. (Re), [2006] 1 S.C.R. 865 at paras. 44-45 AA 17 R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867 at paras. 33-35 AA 36

71. Thus, in this case, the Copyright Act and the Broadcasting Act must be read together in accordance with the principles of harmony, coherence, and consistency addressed below.

iii. Interrelated Acts Must Be Read Harmoniously, Coherently and Consistently

72. As a starting point, it must be remembered that the Copyright Act deals in detail with the creation of private rights, including in retransmitted signals, and the Broadcasting Act does not.1 Thus, this is not a direct competition between statutes, but a contest between a statute implementing a specific rights regime and a regulator exercising general discretionary powers.

1 Variations on “retransmission” appear 31 times in the Copyright Act, but only once in the latter Act, and “royalties” appears 116 times in the Copyright Act, but not once in the Broadcasting Act. - 22 -

Reference: Broadcasting Act, S.C. 1991, c. 11, s. 2 (“distribution undertaking”) AA 1 Marche v. Halifax Insurance Co., [2005] 1 S.C.R. 47 at para. 57 AA 31 Bell ExpressVu at para. 62 AA 15 FCA Decision, paras. 49, 73, 76, 85 (AR 3, Vol. 1, pp. 50, 56-57, 60)

73. Coherence presupposes that subordinate legislators will not act in conflict with related statutes unless their governing statute so authorizes: “The basic principles of law are not in doubt. Just as subordinate legislation cannot conflict with its parent legislation, so too it cannot conflict with other Acts of Parliament, unless a statute so authorizes. Ordinarily, then, an Act of Parliament must prevail over inconsistent or conflicting subordinate legislation. However, as a matter of construction a court will, where possible, prefer an interpretation that permits reconciliation of the two. ‘Inconsistency’ in this context refers to a situation where two legislative enactments cannot stand together… .” [Emphasis added. Citations omitted.]

Reference: Friends of the Oldman River Society at 38 AA 24

74. Conflict also arises when the intention or policy of Parliament is frustrated. In the federal-provincial context, this Court has listed some of the ills that arise when overlapping provincial legislation impairs the core of a federal legislative power: “Parliament would not be free to introduce broad, permissive legislation, should it so choose (and as it has chosen to do). Acceptance of this argument would narrow Parliament’s legislative options and impede the exercise of its core jurisdiction. It might also result in rival systems of regulation, which would be a ‘source of uncertainty and endless disputes’ and a ‘jurisdictional nightmare’.” [Citations omitted.]

Reference: Quebec (Attorney General) v. Canadian Owners and Pilots Association, [2010] 2 S.C.R. 536 at para. 53 AA 35

75. When two authorities are addressing the same subject-matter, it is crucial to examine in full context whether the more restrictive provision frustrates Parliament’s purpose, such as by overriding its balancing of competing interests: “what must be determined… is whether there is a conflict of purposes. In some cases, it can be seen from the legislative context that a permissive or restrictive provision of a federal statute has a purpose that is compatible with the purpose of the provincial legislation, but in others the opposite is true. …

to determine whether a conflict of purposes really exists, it is necessary to consider each of the provisions in issue in its context and to review its legislative purpose in order to clarify its scope.”

Reference: Quebec (Attorney General) v. Canada (Human Resources and Social Development), 2011 SCC 60 at paras. 20, 26 AA 36 - 23 -

Also see: Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188 at paras. 11-15 AA 39

76. When interlocking statutes come into conflict, this Court’s preference is to interpret newer provisions to override older ones and specific provisions to override the general: “When a conflict does exist and it cannot be resolved by adopting an interpretation which would remove the inconsistency, the question that must be answered is which provision should prevail. The objective is to determine the legislature’s intent. Where there is no express indication of which law should prevail, two presumptions have developed in the jurisprudence to aid in this task. These are that the more recent law prevails over the earlier law and that the special law prevails over the general (Côté, at pp. 358-62). The first presumes that the legislature was fully cognizant of the existing laws when a new law was enacted. If a new law conflicts with an existing law, it can only be presumed that the new one is to take precedence. The second presumes that the legislature intended a special law to apply over a general one since to hold otherwise would in effect render the special law obsolete. Neither presumption is, however, absolute. Both are only indices of legislative intent and may be rebutted if other considerations show a different legislative intent (Côté, at pp. 358-59).”

Reference: Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 S.C.R. 591 at para. 58 AA 28 Also see MGEA v. Manitoba, [1978] 1 S.C.R. 1123 at 1144-46 AA 32

77. In this case, ss. 21 and 31 of the Copyright Act postdate the enactment of s. 3 of the Broadcasting Act and its predecessors. Moreover, the Copyright Act is specific to rights in retransmitted signals, whereas the Broadcasting Act accords the CRTC a general supervisory role over broadcasting and no specific power to create private rights in broadcasts or signals.

iv. Ancillary Statutes Are Presumed Not to Authorize Concurrent Regulation of Intellectual Property

78. A final basic principle of statutory interpretation applicable here is the special nature of intellectual property statutes. Ancillary statutes are presumed not to authorize concurrent regulation of intellectual property subject matter unless Parliament has specifically granted an overlapping jurisdiction. Reference: Euro-Excellence Inc. v. Kraft Canada Inc., [2007] 3 S.C.R. 20 at paras. 11-13 AA 23 See also: Kirkbi AG v. Ritvik Holdings Inc., [2005] 3 S.C.R. 302 at para. 37 AA 27

79. As this Court has recognized on four separate occasions in the past decade, “copyright is a creature of statute and the rights and remedies provided by the Copyright Act are exhaustive”: “The “modern” or “purposive” approach requires that the words of the statute “in their grammatical and ordinary sense” be read harmoniously with the objects of the Act. It - 24 -

does not, however, give judges licence to substitute their policy preferences for those of Parliament. This Court has consistently held that “copyright is a creature of statute and the rights and remedies provided by the Copyright Act are exhaustive”: see CCH, at para. 9; Théberge v. Galerie d'Art du Petit Champlain inc., [2002] 2 S.C.R. 336, at para. 5; Bishop v. Stevens, [1990] 2 S.C.R. 467 at p. 477; Compo Co. v. Blue Crest Music Inc., [1980] 1 S.C.R. 357 at pp. 372-73.” [Emphasis added.]

Reference: Euro-Excellence at para. 3 (also see paras. 11-13) AA 23 SOCAN v. CAIP, [2004] 2 S.C.R. 427 at para. 82 AA 40 Copyright Act, s. 89 AA 2 Tamaro, 2011 Copyright Act Annotated at 891-92 AA 47

80. This Court has held that the only exception to this principle is when the Copyright Act or another federal act specifically authorizes the creation of a right in the nature of copyright. Absent such a specific legislative authorization, it is submitted that the creation of such a right is not “under” or “in accordance with” the Copyright Act or any other Act of Parliament. Reference: Copyright Act, s. 89 AA 2 Euro-Excellence at paras. 3, 11-13 AA 23 Bell ExpressVu at para. 52 AA 15 Tamaro at 892 AA 47 MacCharles v. Jones, [1939] 1 D.L.R. 584 at 588-89 (Man. C.A.) AA 28

81. Concomitantly, as this Court has recognized, the exhaustiveness principle demands restraint on the part of bodies that are not authorized to create or redefine copyright law. Such bodies are not empowered to amend or override the Copyright Act. Reference: Euro-Excellence at para. 3 AA 23 CCH Canadian Ltd. v. Law Society of Upper Canada, [2002] 4 F.C. 213 at para. 28 (F.C.A.), aff’d on this point [2004] 1 S.C.R. 339 at para. 16 AA 19 Bishop v. Stevens, [1990] 2 S.C.R. 467 at 480-81, 484-85 AA 16

82. Applying the foregoing principles, the Court should interpret the scope of the CRTC’s jurisdiction under the Broadcasting Act in a manner that does not result in disharmony, or conflict, with the Copyright Act. That is especially so in light of s. 3(2) of the Broadcasting Act described at paragraphs 110 - 111 infra, which implies that if a regulatory scheme is created under another Act, as the Copyright Act regulates property rights in broadcast retransmissions, such a scheme falls outside the CRTC’s jurisdiction under the Broadcasting Act.

D. THE PURPOSE AND STRUCTURE OF THE COPYRIGHT ACT

83. By proposing to create a right in broadcast signals that is exercisable by broadcasters against BDUs, the CRTC has stepped into the core mechanism of copyright: the creation of - 25 - economic rights to unlock value in copyright works. It is the Copyright Act, not the Broadcasting Act, that is concerned with the economic rights of copyright holders: “The Act provides the respondent with both economic and ‘moral’ rights to his work. The distinction between the two types of rights and their respective statutory remedies… Generally speaking, Canadian copyright law has traditionally been more concerned with economic than moral rights. … The economic rights are based on a conception of artistic and literary works essentially as articles of commerce.

Reference: Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336 at paras. 11-12 AA 42 FCA Decision, paras. 78, 84-85 (AR 3, Vol. 1, pp. 57-60)

84. Similarly, as stated in Desputeaux, the Copyright Act is: “designed to organize the economic management of intellectual property, and regards copyright primarily as a mechanism for protecting and transmitting the economic values associated with this type of property and with the use of it.”

Reference: Desputeaux v. Éditions Chouette (1987) inc., [2003] 1 S.C.R. 178 at para. 57 AA 21

85. This Court has held repeatedly that the Copyright Act is an important instrument of cultural policy and innovation. Disrupting the copyright balance, including by tampering with the public domain, risks imposing numerous negative effects on society: “The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated). …

“The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them. Once an authorized copy of a work is sold to a member of the public, it is generally for the purchaser, not the author, to determine what happens to it.

“Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization. This is reflected in the exceptions to copyright infringement enumerated in ss. 29 to 32.2, which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review and to add new protections to reflect new technology, such as limited computer program reproduction and “ephemeral recordings” in connection with live performances.” [Emphasis added.]

Reference: Théberge at paras. 30-32 AA 42 - 26 -

86. To promote these public interests, the Supreme Court has affirmed that the exceptions set out in the Copyright Act are user rights that are not to be construed restrictively. This is a concept that expands well beyond the “fair dealing” exception to all statutory copyright exceptions: “Before reviewing the scope of the fair dealing exception under the Copyright Act, it is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively. As Professor Vaver, supra, has explained, at p. 171: ‘User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.’ ” [Emphasis added.]

Reference: CCH (S.C.C.) at para. 48 (also see paras. 10, 49, 70) AA 19 SOCAN v. CAIP at paras. 88-89 AA 40 Euro-Excellence at paras. 76-88 AA 23

87. This principle of interpretation was ignored by the majority decision below, which would permit the CRTC to create a circumstance whereby no one is able to retransmit a local signal without authorization, thus nullifying Parliament’s granting of an exception applying to retransmissions of local signals.

88. By assigning a value to a program contained within a signal, regardless of whether that program is infringing under the Copyright Act, the majority decision also impinges upon uses of works that are in the public domain, or are captured by fair dealing or any other of the many other exceptions set out by Parliament in the Copyright Act. All such programs may be blacked out, even for program rights that have fallen into the public domain.

89. Where a person cannot rely on the specific language of the Copyright Act to found his property right, his remedy lies in Parliament, not the courts, and certainly not the CRTC. As stated by Justice Binnie: “To the extent, however, that the respondent seeks to enlarge the protection of s. 3(1) by reading in the general words ‘recast, transformed, or adapted’ as a free-standing source of entitlement, his remedy lies in Parliament, not the courts.” [Emphasis added.]

Reference: Théberge at para. 73 AA 42 Copyright Act, s. 37 AA 2 - 27 -

E. THE COPYRIGHT ACT RETRANSMISSIONS REGIME

90. The following are the most important provisions of the Copyright Act in this appeal:2 2. “broadcaster” means a body that, in the course of operating a broadcasting undertaking, broadcasts a communication signal in accordance with the law of the country in which the broadcasting undertaking is carried on, but excludes a body whose primary activity in relation to communication signals is their retransmission; […]

“communication signal” means radio waves transmitted through space without any artificial guide, for reception by the public; […]

“dramatic work” includes […] (b) any cinematographic work […]

“telecommunication” means any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system; […]

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 or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right […]

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication, […]

21. (1) Subject to subsection (2), a broadcaster has a copyright in the communication signals that it broadcasts, consisting of the sole right to do the following in relation to the communication signal or any substantial part thereof: […]

(c) to authorize another broadcaster to retransmit it to the public simultaneously with its broadcast […]

31. (1) In this section, […]

“retransmitter” means a person who performs a function comparable to that of a cable retransmission system, but does not include a new media retransmitter; […]

“signal” means a signal that carries a literary, dramatic, musical or artistic work and is transmitted for free reception by the public by a terrestrial radio or terrestrial television station.

(2) It is not an infringement of copyright for a retransmitter to communicate to the public by telecommunication any literary, dramatic, musical or artistic work if

2 A full set of the relevant provisions is provided in Tab 2 of the Authorities. - 28 -

(a) the communication is a retransmission of a local or distant signal;

(b) the retransmission is lawful under the Broadcasting Act;

(c) the signal is retransmitted simultaneously and without alteration, except as otherwise required or permitted by or under the laws of Canada;

(d) 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 [by the Copyright Board pursuant to ss. 71-76]; and

(e) the retransmitter complies with the applicable conditions, if any, referred to in paragraph (3)(b).

(3) The Governor in Council may make regulations

(a) defining “local signal” and “distant signal” for the purposes of subsection (2);3 and

(b) prescribing conditions for the purposes of paragraph (2)(e), and specifying whether any such condition applies to all retransmitters or only to a class of retransmitter. [Emphasis added.]

Reference: Copyright Act, supra, ss. 2, 3(1)(f), 21, 31 AA 2

91. The CRTC regime overlaps with these provisions because it creates a right: (a) in copyright subject-matter (a television program is a “dramatic work”);

(b) in a transmissions technology addressed in ss. 21 and 31 of the Copyright Act;

(c) of the type found in the Copyright Act, namely one that permits exclusivity in a broadcast signal against retransmissions (s. 21(1)(c));

(d) to the benefit of parties who are already beneficiaries of specific, limited rights under the Copyright Act (ss. 3(1)(f), 21 and 31(2)(d));

(e) exercisable against an entity that benefits from user rights within the Copyright Act (ss. 2 “broadcaster” and 31(2)(a),(d)) and

3 Under s. 2 of the Local Signal and Distant Signal Regulations, SOR/89-254, AA 8, promulgated under the Copyright Act, a “local signal” is the signal of a terrestrial radio or television station reaching all or a portion of the service area of a cable retransmitter. All other signals outside of the service area are considered “distant signals”. - 29 -

(f) whose fair valuation the CRTC itself has acknowledged repeatedly as being within the mandate of copyright bodies (ss. 71-76).

92. As Justice Nadon held, the CRTC regime and the Copyright Act regime “are functionally equivalent, despite slight differences in form.” More importantly, the CRTC regime is crafted in such a way to conflict with the existing ss. 21 and 31 Copyright Act regime. Reference: FCA Decision at paras. 78-85 (AR 3, Vol. 1, pp. 57-60)

93. Crucially, the retransmission regime under the Copyright Act in substance imposes important limitations which are absent from the CRTC regime:  While the Copyright Act prevents anyone from blocking a retransmission, the CRTC regime would permit broadcasters to block retransmissions where a fee is not paid.

 Pursuant to the Copyright Act, distant signals are remunerable but local signals are not. The CRTC regime would make both kinds of signals compensable.

 Pursuant to the Copyright Act, the right to be paid royalties for retransmissions belongs to authors, not broadcasters, and the CRTC regime would extend the right to broadcasters as well.

 Whereas the Copyright Act specifically requires the Copyright Board to establish preferential rates for small retransmissions systems via s. 74 and associated regulations, the CRTC regime would create no such protection.

 Whereas rights holders under the Copyright Act’s retransmissions regime in s. 31 must file tariffs via collective societies, broadcasters under the CRTC regime would exercise their bargaining power individually. As well, whereas rights holders under the Copyright Act must file requested rates and terms and conditions in advance, rights holders under the CRTC regime would have no such obligation.

 Pursuant to the Copyright Act, the Copyright Board, not the CRTC, is granted exclusive jurisdiction to establish royalties for distant signals. - 30 -

Reference: Copyright Act, supra, ss. 31, 71-76, 90 AA 2 Definition of ‘Small Cable Transmission System’ Regulations, SOR/94-755, as amended by SOR/2005-148 AA 7

94. As Justice Nadon found below, the CRTC regime is in conflict with s. 31(2) despite the requirement in s. 31(2)(b) that a broadcast be “lawful under the Broadcasting Act”. This is because the requirements of s. 31(2) are co-equal and conjunctive in nature. All five conditions must be met before the exception provided for in s. 31(2) applies. The effect of the majority decision below is to permit s. 31(2)(b) to override ss. 31(2)(a), (d), and (e) rather than operate in tandem with those provisions as constituent elements of the five-part test Parliament intended to apply. While the CRTC is permitted to impose certain conditions of licence that must be met before a BDU can make a transmission that is “lawful under the Broadcasting Act”, it cannot scuttle the s. 31 regime altogether.

95. As Justice Nadon put it, the CRTC cannot redefine s. 31(2)(d) to mean “that royalties may only be charged for the retransmission of distant signals and may not be charged for the retransmission of local signals, unless the CRTC decides otherwise”. Nor, if Cabinet created regulations under ss. 31(2)(e) and (3)(b), could the CRTC alter or overturn them through its powers so as to make the entire section inapplicable under any circumstances. Such actions would frustrate the intention of Parliament to remove obstacles to the retransmission of free, over-the-air signals to Canadians. Reference: FCA Decision, paras. 63-77 (AR 3, Vol. 1, pp. 54-57)

96. Examples of retransmissions that would be unlawful under the Broadcasting Act in the meaning of s. 31(2)(b) include retransmissions that: i) are to an unlicensed area; ii) breach the CRTC’s simultaneous substitution or preferential channel placement requirements; or iii) otherwise violate the Broadcasting Distribution Regulations. Such matters are clearly “under the Broadcasting Act” rather than under the Copyright Act. They do not impair any of the other statutory conditions in s. 31(2). A retransmitter who fails to comply with such broadcasting requirements will fail the test set by Parliament in s. 31(2)(b) and will be properly deprived of the benefit of the s. 31 exception. Reference: CRTC Order 2010-167, paras. 157, 164.3.a AR 10, Vol. 2, pp. 32-34 Broadcasting Distribution Regulations, SOR/97-555, s. 3 AA 6 - 31 -

97. It is worth emphasizing that royalties for retransmissions of distant signals pursuant to ss. 31(2) and (3) are set by the Copyright Board pursuant to ss. 71-76 of the Copyright Act, not by the CRTC, nor in market-based negotiations as proposed by the CRTC.

98. As set out at paragraphs 17 to 33 infra, the “market forces” invoked by the CRTC regime were considered and rejected by Parliament, not least because (a) it recognized the difficulty of clearing rights in retransmissions; (b) it accepted that retransmissions were too important to Canadians to permit rights holders to withhold authorization; and (c) it realized that small cable operators required uninterrupted access to signals in order to survive in the Canadian marketplace. To recoup any value from users, the holder must file tariffs (in a collective) in accordance with the many conditions and prescriptions in the Act. Parliament granted exclusive jurisdiction to the Copyright Board to fix applicable royalties and their related terms and conditions after it has conducted hearings into the matter and heard from all interested parties. Reference: Copyright Act, supra, ss. 31, 66-66.91, 71-76, 90(a) AA 2 Definition of ‘Small Cable Transmission System’ Regulations, SOR/94-755, as amended by SOR/2005-148 AA 7 Retransmission of Distant Radio and Television Signals, 1998-2000 (Re), at 447 AA 38

99. The CRTC regime would also overlap and conflict with Parliament’s legislative policy set out in s. 21. As the majority below failed to appreciate, the Copyright Act carefully defines the term “broadcaster” in s. 2 so as to deliberately exclude those whose “primary activity in relation to communication signals is their retransmission”. Accordingly, BDUs are exempted in s. 21(1)(c) from a broadcaster’s sole right to authorize “another broadcaster to retransmit” its communication signal. The s. 21 copyright does not allow broadcasters to authorize retransmissions by BDUs. That is precisely the right which the CRTC proposes to give to broadcasters pursuant to its general powers under the Broadcasting Act. Reference: Copyright Act, supra, ss. 2 “broadcaster”, 21 AA 2

100. Section 90 of the Copyright Act is also relevant here. It provides that the communication signal right shall not be construed as prejudicing authors’ rights or the amount of royalties that the Copyright Board may fix in respect of those rights.

101. Under the existing Copyright Act scheme, authors are entitled to royalties from retransmissions of distant signals and, importantly, the Act prevents anyone from blocking - 32 - retransmissions of those signals. The CRTC regime would permit broadcasters to block distant signals that contain the same programs as local signals. It would thereby “prejudice the amount of royalties” these authors would receive, contrary to the spirit of s. 90 of the Act. Reference: Legislative Summary dated March 21, 1997, LS-254E (AR 26, Vol. 4, p. 83) Robic-Leger, Canadian Copyright Act Annotated, at 90-1 to 90-2 AA 45 Submission by Canada on the Proposed WIPO Treaty, SCCR/6/4 (AR 94, Vol. 13, p. 29)

102. While s. 90 of the Copyright Act is an interpretive provision, it demonstrates the care which Parliament has taken to preserve the integrity and balance in the Copyright Act scheme. The CRTC regime would overturn basic copyright norms by according more powerful rights to broadcasters than it does to authors. As set out at paragraph 43 infra, this is an explicit concern of Canada in broadcast treaty negotiations.

103. In light of the comprehensive and specific regime set out in the Copyright Act and the comparative silence of the Broadcasting Act, an interpretation which would give the CRTC jurisdiction to implement its proposed value-for-signal scheme is implausible in isolation, let alone against the backdrop of the legislative history. As this Court recognized in a similar setting, the considered decision of Parliament not to grant a right warrants caution: The issue of ephemeral recording rights (together with rights to make archival recordings) is one that has long been on the legislative agenda […]. Given the policy issues raised and the repeated consideration of the matter by Parliament and its legislative adjuncts, it is my view that it would be inappropriate for this Court to interfere.

Reference: Bishop v. Stevens, [1990] 2 S.C.R. 467 at 484 AA 16 also see Tele-Mobile Co. v. Ontario, [2008] 1 S.C.R. 305 at paras. 28-43 AA 41

F. THE CRTC LACKS JURISDICTION UNDER THE BROADCASTING ACT, LACKS EXPERTISE IN THE SUBJECT MATTER AT ISSUE, AND IS NOT OWED DUE DEFERENCE

104. The majority below inferred that Parliament intended through the broadly drafted provisions of the Broadcasting Act to empower the CRTC to create a value-for-signal right, permit the blocking of local signals, and potentially to arbitrate the value of that right.

105. It is submitted that the majority was wrong for two principal reasons.

106. First, permitting the CRTC to implement the CRTC regime would require this Court to conclude that Parliament intended to grant the desired powers to the CRTC through the general purpose clauses in the Broadcasting Act, rather than through a clear and specific statutory power, - 33 - as Parliament has done in other situations under the Broadcasting Act or under the Copyright Act. It is submitted that the case law requires far more specific language than that which is found in the Broadcasting Act.

107. Second, such a conclusion begs the question of why Parliament would have indirectly and inferentially granted such powers to a body like the CRTC with no expertise in valuing private signal rights or adjudicating their associated terms and conditions, when the Copyright Board already has expertise in this very field.

i. The CRTC Lacks Jurisdiction under the Broadcasting Act

108. The Broadcasting Act lacks a specific power that grants the CRTC jurisdiction over the CRTC regime. The only possible basis for the regime exists in a number of general provisions in the Broadcasting Act. The first of these is s. 3, which declares Canada’s broadcasting policy but is not a power-granting provision. The relevant provisions in s. 3 are as follows: “3. (1) It is hereby declared as the broadcasting policy for Canada that

[…]

(e) each element of the Canadian broadcasting system shall contribute in an appropriate manner to the creation and presentation of Canadian programming;

[…]

(s) private networks and programming undertakings should, to an extent consistent with the financial and other resources available to them,

(i) contribute significantly to the creation and presentation of Canadian programming, and

(ii) be responsive to the evolving demands of the public; and

(t) distribution undertakings

(i) should give priority to the carriage of Canadian programming services and, in particular, to the carriage of local Canadian stations,

(ii) 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, packaging and retailing of those programming services, and - 34 -

(iv) may, where the Commission considers it appropriate, originate programming, including local programming, on such terms as are conducive to the achievement of the objectives of the broadcasting policy set out in this subsection, and in particular provide access for underserved linguistic and cultural minority communities.

(2) It is further declared that the Canadian broadcasting system constitutes a single system and that the objectives of the broadcasting policy set out in subsection (1) can best be achieved by providing for the regulation and supervision of the Canadian broadcasting system by a single independent public authority.” [Emphasis added.]

Reference: Broadcasting Act, S.C. 1991, c. 11, ss. 3(1)(e),(s),(t), 3(2) AA 1

109. None of the s. 3(1) provisions relates to a value for signal regime or grants the CRTC jurisdiction over the CRTC regime. Paragraph 3(1)(e) deals with the creation and presentation of Canadian programming. Paragraph 3(1)(s) deals with financial contributions to programming by broadcasters (not BDUs). Paragraph 3(1)(t) places limited obligations upon BDUs to carry or originate Canadian content, to deliver programming at affordable rates for consumers, and to set reasonable retail terms.

110. If a particular subject matter – in this case the right of retransmission and the valuation of those rights – is found outside of the Broadcasting Act and under the supervision of another regulator, by definition the CRTC is not a “single independent public authority” regulating the matter pursuant to s. 3(2) of the Broadcasting Act.

111. Far from supporting the CRTC’s jurisdiction, s. 3 makes it clear that Parliament did not intend to give the CRTC jurisdiction over the rights it now seeks to create. It is submitted that, by enacting ss. 21 and 31 of the Copyright Act, Parliament has clearly decided to exclude from the CRTC’s regulation and supervision the rights of retransmission and the valuation of those rights and has instead vested this supervisory power – to whatever extent it chose to do so – in the Copyright Board under the Copyright Act. The necessary implication from the clear wording of s. 3(2) is that the CRTC has no jurisdiction to regulate that particular subject matter.

112. The second potential source of the CRTC’s jurisdiction over the regime is s. 5 of the Broadcasting Act, which sets out the objects of the CRTC: “5. (1) Subject to this Act and the Radiocommunication Act and to any directions to the Commission issued by the Governor in Council under this Act, the Commission shall regulate and supervise all aspects of the Canadian broadcasting system with a view to - 35 -

implementing the broadcasting policy set out in subsection 3(1) and, in so doing, shall have regard to the regulatory policy set out in subsection (2).

(2) The Canadian broadcasting system should be regulated and supervised in a flexible manner that

(a) is readily adaptable to the different characteristics of English and French language broadcasting and to the different conditions under which broadcasting undertakings that provide English or French language programming operate;

(b) takes into account regional needs and concerns;

(c) is readily adaptable to scientific and technological change;

(d) facilitates the provision of broadcasting to Canadians;

(e) facilitates the provision of Canadian programs to Canadians;

(f) does not inhibit the development of information technologies and their application or the delivery of resultant services to Canadians; and

(g) is sensitive to the administrative burden that, as a consequence of such regulation and supervision, may be imposed on persons carrying on broadcasting undertakings.” [Emphasis added.]

Reference: Broadcasting Act, S.C. 1991, c. 11, ss. 5(1)-(2) AA 1

113. Section 5 addresses linguistic, geographical, cultural and technological broadcasting imperatives, none of which relates to a value-for-signal regime. While section 5 requires the CRTC to regulate and supervise all aspects of the broadcasting system, as set out above, it grants no power for the CRTC to regulate subject-matter already present in the Copyright Act.

114. The third potential source of jurisdiction for the CRTC regime is ss. 9 and 10 of the Broadcasting Act, which accord the CRTC general licensing and regulatory powers. The relevant provisions are as follows: 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.

10. (1) The Commission may, in furtherance of its objects, make regulations […]

(k) respecting such other matters as it deems necessary for the furtherance of its objects. - 36 -

Reference: Broadcasting Act, S.C. 1991, c. 11, ss. 3(2) AA 1

115. Paragraph 9(1)(h) is a mandatory carriage requirement. It grants the CRTC the ability to require a BDU to carry certain programming services, such as a minority language channel in a given geographic area. The terms and conditions of that carriage may be shaped by the CRTC in accordance with its powers. Paragraph 10(1)(k) accords the CRTC the power to act flexibly within its jurisdiction, not to exceed it. It does not accord the CRTC an unfettered discretion to attach any condition it wishes to an order. As stated by the Federal Court in the Canadian Wheat Board case: “In Bay Travel Centre Ltd. v. Registrar of Travel Services, Chief Justice McLachlin, as a Judge of the British Columbia County Court, abstracted the following principles from prior Supreme Court of Canada jurisprudence. She states:

‘It is well-established that Regulations may neither exceed nor be inconsistent with the statutory provisions under which they are made. If they do, they constitute attempts to legislate by adding to or amending the statute, and will be held to be ultra vires. The delegated authority must be exercised strictly and in accordance with the enabling statute; Regulations may neither enlarge nor abridge the scope or substance of the delegated power.’ [….]

“In Waddell v. Schreyer, Justice Lysyk made a number of observations that are helpful in this analysis. He stated:

‘In determining the scope of a power or discretion delegated by Parliament it may be necessary to look beyond the literal terms of the particular delegating provision of the enactment to ascertain limitations on that power or discretion which must have been intended by Parliament.’

‘[…]The test of conformity with the Act is not satisfied merely by showing that the delegate stayed within the literal (and often broad) terminology of the enabling provision when making subordinate legislation. The power-conferring language must be taken to be qualified by the overriding requirement that the subordinate legislation accord with the purposes and objects of the parent enactment read as a whole.

‘[…]the delegate may not frustrate or evade the Act of Parliament or exercise his discretionary powers arbitrarily or otherwise than in accordance with the purposes or objects of the enactment. The delegate must not only stay within the literal terms of the delegating provision but must respect, as well, restrictions upon his mandate that are implicit in the legislative scheme considered in its entirety.” [Emphasis added. Citations omitted.]

Reference: Canada (Wheat Board) v. Canada (Attorney General), [2008] 2 F.C.R. 87 at paras. 36-37 (F.C.T.D.), aff’d 2008 FCA 76 AA 18 Also see ATCO at paras. 46, 73-75 AA 12 - 37 -

116. Unlike in the decision of this Court in CKOY, where specific provisions existed to ground the CRTC’s jurisdiction over programming standards, there is no analogous class of subject in s. 3 of the Broadcasting Act that, even in isolation, could allow the CRTC to create a private right in the nature of copyright, let alone one that conflicts with the far more specific allocations of jurisdiction to the Copyright Board provided for under the Copyright Act. Accordingly, the principles set out by this Court in the Barrie Public Utilities and ATCO cases are applicable. Reference: CKOY Ltd. v. R., [1979] 1 S.C.R. 2 at 11 AA 20

ii. The CRTC Is Not Expert in Valuing Private Rights in Retransmissions

117. The Copyright Board has well-recognized institutional expertise in the valuation of private rights and the setting of terms and conditions for the usage of such rights, including retransmission rights. The CRTC does not. Reference: NRCC v. SOCAN, [2004] 1 F.C.R. 303 at paras. 41-68 AA 33 SOCAN v. CAIP, [2002] 4 F.C. 3 at paras. 98-99 (F.C.A.) AA 40 FWS Joint Sports Claimants Inc. v. Border Broadcasters Inc., 2001 FCA 336 at paras. 11-12 AA 25

118. Parliament has vested comprehensive and detailed jurisdiction in the Copyright Board to evaluate in the public interest the competing claims of producers, users and consumers in literary, musical and other works: “To this end, Parliament established the Copyright Board to administer the scheme by approving royalties and invested it with the powers necessary for it to discharge its regulatory responsibilities in a complex area…[Emphasis added.]

Reference: NRCC v. SOCAN at paras. 61-63 AA 33

119. This Court has acknowledged that the Copyright Board is in its “home territory” in certifying a “fair and equitable” tariff under the retransmissions regime: “This is an expert Board. It must consider complicated evidence in the area of economics, cable technology and statistics. The problem being considered is central to the Board's jurisdiction. The words of Iacobucci J. in Southam [[1993] 1 S.C.R. 941] are again helpful. He states:

Because an appellate court is likely to encounter difficulties in understanding the economic and commercial ramifications of the Tribunal’s decisions and consequently to be less able to secure the fulfilment of the purpose of the Competition Act than is the Tribunal, the natural inference is that the purpose of the Act is better served by appellate deference to the Tribunal’s decision. - 38 -

“In other words, the Tribunal was better placed to make the decision in question than the Court. There is no doubt that the technical and economic issues in this case, which have ramifications for the broadcasting industry, would be better understood by the Board than by an Appellate Court. The Act creates the Board to regulate royalty payments for the collective administration of performing rights. In that way, it is more of an economic or commercial institution than it is a legal one. By the terms of the Copyright Act, legal disputes about the ownership or enforcement of a copyright are expressly granted to the Courts, which presumably are better placed to decide those questions. These technical economic matters, however, are handed to the Board. The purposes of the legislation, therefore, will be better served by a high degree of appellate deference being paid to this expert Board.” [Emphasis added.]

Reference: Réseaux Premier Choix Inc. v. Canadian Cable Television Assn. (1997), 80 C.P.R. (3d) 203 at para. 15 (F.C.A.) AA 37 Also see FWS Joint Sports Claimants Inc. at para. 11 (F.C.A.) AA 25

120. Pursuant to the Copyright Act, the Governor in Council has issued a specific set of regulatory criteria for the Copyright Board to consider in determining a fair and equitable value for the retransmission of distant signals in Canada. Reference: Copyright Act, s. 66.91 AA 2 Retransmissions Royalty Criteria Regulations, SOR/91-690 AA 9 Definition of ‘Small Cable Transmission System’ Regulations AA 7 Legislative Committee on Bill C-130, Canada-United States Free Trade Agreement Implementation Act (AR 29, Vol. 5, p. 13)

121. Pursuant to s. 2 of these Regulations, the Copyright Board must have regard to: “(a) royalties paid for the retransmission of distant signals in the United States under the retransmission regime in the United States;

“(b) the effects on the retransmission of distant signals in Canada of the application of the Broadcasting Act and regulations made thereunder; and

“(c) royalties and related terms and conditions stipulated in written agreements in respect of royalties for the retransmission of distant signals in Canada that have been reached between collecting bodies and retransmitters and that are submitted to the Board in their entirety.” [Emphasis added.]

Reference: Retransmissions Royalty Criteria Regulations, s. 2 AA 9

122. It is submitted that, where Parliament has created a statutory regime which includes both rights and a procedure for their resolution, there is a strong reluctance to permit jurisdiction to be divided or to permit overlapping or concurrent jurisdiction. Reference: Gendron v. Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298 at 1321 AA 26 Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 at para. 55 AA 43 - 39 -

Mahar v. Rogers Cablesystems Ltd. (1995), 25 O.R. (3d) 690 at 698-701 (Gen. Div.) AA 30

123. Parliament expressly awarded the Copyright Board jurisdiction to manage any overlap between the economic rights granted under the Copyright Act and the policy imperatives of the Broadcasting Act. No such jurisdiction was conferred upon the CRTC. Reference: Copyright Act, ss. 31, 71-76 AA 2 Retransmissions Royalty Criteria Regulations AA 9

124. The CRTC regime, if valid, would involve the arbitration of value-for-signal rights by the CRTC that do not yet exist and whose value components remain undefined. Given the detailed treatment of such value in the retransmission regime administered by the Copyright Board, it cannot have been Parliament’s intention to accord the CRTC a right to step in as an arbitrator and determine good faith or fair value.

125. As the value-for-signal right has been adjudicated by the Copyright Board in the context of distant signals, and not by the CRTC, it cannot be said that the CRTC has the “particular familiarity” or “particular expertise” demanded by the Supreme Court’s decision in Dunsmuir. Reference: Dunsmuir v. New Brunswick, at para. 54 AA 22

126. Accordingly, it is implausible that Parliament would have indirectly and inferentially granted such powers to the CRTC through the existing provisions of the Broadcasting Act.

G. CONCLUSION

127. The Government of Canada and Parliament have made their intentions clear. For half a century, government studies have warned of the powerful potential impact of a value-for-signal regime on the Canadian public, including those portions of the Canadian public served by smaller retransmitters. Facing these recommendations, Parliament instituted an alternative regime. Internationally, the Government of Canada has fought for more than a decade against an exclusive signal right. Notwithstanding these clear indications of intent, the CRTC is trying to implement the very same regime through the back door of its general regulatory powers.

128. Granting the requested jurisdiction to the CRTC would risk overturning a delicate system of copyright checks and balances. It would allow a regulatory body to create significant copyright rights and remedies, not through ongoing public debate and legislation in Parliament - 40 - under the Copyright Act, but through administrative decision-making under the Broadcasting Act. It is submitted that that is not what Parliament intended.

PART IV — SUBMISSIONS ON COSTS

129. Cogeco respectfully submits that costs ought to follow the event in the ordinary course.

PART V — ORDER REQUESTED

130. Cogeco asks that its appeal be granted with costs and that this Court answer “No” to the question posed in the Reference by the CRTC.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

McCarthy Tétrault LLP Of counsel for the Appellant Cogeco Cable Inc. - 41 -

PART VI — LIST OF AUTHORITIES

TAB Authority Referred to at paras. Statutes, Regulations and Bills 1. Broadcasting Act, S.C. 1991, c. 11 4, 68-72, 77, 82- 83, 90, 94, 96, 103-104, 106, 108-116, 123, 126, 128 2. Copyright Act, R.S.C., 1985, c. C-42 1, 4, 7, 15, 21- 25, 27-28, 30- 31, 33, 57-59, 68-72, 77, 79- 103, 120, 123, 128 3. Department of Canadian Heritage Act, S.C. 1995, c. 11 30

4. Department of Industry Act, S.C. 1995, c. 1 30

5. Federal Courts Act, R.S.C., 1985, c. F-7 13, 55

6. Broadcasting Distribution Regulations, SOR/97-555 96

7. Definition of ‘Small Cable Transmission System’ Regulations, 93, 98, 120 SOR/94-755, as amended by SOR/2005-148 8. Local Signal and Distant Signal Regulations, SOR/89-254 90

9. Retransmission Royalties Criteria Regulations, SOR/91-690 120-121, 123

10. Bill C-32, An Act to Amend the Copyright Act, ss. 9, 12-16, 22, 34 29

11. Bill C-11, An Act to Amend the Copyright Act, ss. 9, 12-16, 22, 34 29, 31 Case Law 12. ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities 55, 61, 63-65, Board), [2006] 1 S.C.R. 140 115 13. Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1 55, 61-62 SCR 476 14. Bell Canada v. Bell Aliant Regional Communications, [2009] 2 61, 66 S.C.R. 764 15. Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559 69-70, 72, 80 - 42 -

16. Bishop v. Stevens, [1990] 2 S.C.R. 467 79, 81, 103

17. Canada 3000 Inc. (Re), [2006] 1 S.C.R. 865 70

18. Canada (Wheat Board) v. Canada (Attorney General), [2008] 2 63, 115 F.C.R. 87 (F.C.T.D.), aff’d 2008 FCA 76 19. CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 79, 81, 86 S.C.R. 339, aff’ing in part [2002] 4 F.C. 213 20. CKOY Ltd. v. R., [1979] 1 S.C.R. 2 116

21. Desputeaux v. Éditions Chouette (1987) inc., [2003] 1 S.C.R. 178 84

22. Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 55, 125

23. Euro-Excellence Inc. v. Kraft Canada Inc., [2007] 3 S.C.R. 20 78-81, 86

24. Friends of the Oldman River Society v. Canada (Minister of 60, 73 Transport), [1992] 1 S.C.R. 3

25. FWS Joint Sports Claimants Inc. v. Border Broadcasters Inc., 2001 117, 119 FCA 336

26. Gendron v. Public Service Alliance of Canada, Local 50057, [1990] 1 122 S.C.R. 1298

27. Kirkbi AG v. Ritvik Holdings Inc., [2005] 3 S.C.R. 302 78

28. Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 S.C.R. 76 591

29. MacCharles v. Jones, [1939] 1 D.L.R. 584 (Man. C.A.) 80

30. Mahar v. Rogers Cablesystems Ltd. (1995), 25 O.R. (3d) 690 (Gen. 122 Div.)

31. Marche v. Halifax Insurance Co., [2005] 1 S.C.R. 47 72

32. MGEA v. Manitoba, [1978] 1 S.C.R. 1123 76

33. NRCC v. SOCAN, [2004] 1 F.C.R. 303 117-118

34. Quebec (Attorney General) v. Canada (Human Resources and Social 75 Development), 2011 SCC 60

35. Quebec (Attorney General) v. Canadian Owners and Pilots 74 Association, [2010] 2 S.C.R. 536 - 43 -

36. R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867 70

37. Réseaux Premier Choix Inc. v. Canadian Cable Television Assn. 119 (1997), 80 C.P.R. (3d) 203 (F.C.A.)

38. Retransmission of Distant Radio and Television Signals, in Canada, 24, 98 in 1998, 1999, and 2000 (Re) (2000), 5 C.P.R. (4th) 440 (Cpy. Bd.)

39. Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 75 188

40. Society of Composers, Authors and Music Publishers of Canada v. 79, 86, 117 Canadian Assn. of Internet Providers, [2004] 2 S.C.R. 427, aff’ing in part [2002] 4 F.C. 3 (F.C.A.)

41. Tele-Mobile Co. v. Ontario, [2008] 1 S.C.R. 30 103

42. Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 79, 83, 85, 89 336

43. Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 122 Secondary Authorities 44. Ficsor, Guide to the Copyright and Related Rights Treaties 41 Administered by WIPO

45. Robic-Leger, Canadian Copyright Act Annotated 101

46. Stewart, International Copyright and Neighbouring Rights (2nd Ed., 40 1989, at 8.01)

47. Tamaro, 2011 Copyright Act Annotated 79-80 - 44 -

PART VII — STATUTES AND REGULATIONS RELIED UPON

TAB Authority Referred to at paras. 1. Broadcasting Act, S.C. 1991, c. 11, s. 2 (“distribution undertaking”) 72, 108-116

2. Copyright Act, R.S.C., 1985, c. C-42 30, 31, 89, 98, 120, 123 3. Department of Canadian Heritage Act, S.C. 1995, c. 11 30

4. Department of Industry Act, S.C. 1995, c. 1 30

5. Federal Courts Act, R.S.C., 1985, c. F-7, ss. 18.3(1), 28.2 13, 55

6. Broadcasting Distribution Regulations, SOR/97-555 96

7. Definition of ‘Small Cable Transmission System’ Regulations, 93, 98, 120 SOR/94-755, as amended by SOR/2005-148 8. Retransmission Royalties Criteria Regulations, SOR/91-690 120-121, 123

9. Bill C-32, An Act to Amend the Copyright Act, ss. 9, 12-16, 22, 34 29

10. Bill C-11, An Act to Amend the Copyright Act, ss. 9, 12-16, 22, 34 29, 31 Court File No. 34231

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) B E T W E E N: COGECO CABLE INC.

Appellant - and -

BELL MEDIA INC. (FORMERLY CTVGLOBEMEDIA INC.), CANWEST TELEVISION LIMITED PARTNERSHIP, NEWFOUNDLAND BROADCASTING CO. LTD., V INTERACTIONS INC. AND ATTORNEY GENERAL OF CANADA (“ET AL.”)

Respondents A N D B E T W E E N: ROGERS COMMUNICATIONS INC. and TELUS COMMUNICATIONS COMPANY

Appellants - and -

BELL MEDIA INC. (FORMERLY CTVGLOBEMEDIA INC.), ET AL.

Respondents A N D B E T W E E N: SHAW COMMUNICATIONS INC.

Appellant - and -

BELL MEDIA INC. (FORMERLY CTVGLOBEMEDIA INC.), ET AL.

Respondents - and -

THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION (CRTC)

Intervener

FACTUM OF THE APPELLANT COGECO CABLE INC.

McCarthy Tétrault LLP Suite 5300, Toronto Dominion Bank Tower Toronto, ON M5K 1E6

Neil Finkelstein/Steven G. Mason/Daniel G.C. Glover Tel: (416) 601-8200 Fax: (416) 868-0673 Counsel for the Appellant #11115858