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SuperBowl Commercials & Mail Carriers’ Safety Caught in Canadian Administrative Law Quagmire

  • Photo: “Canada Post Truck” by Duncan Rawlinson – Duncan.co – @thelastminute is licensed under CC BY-NC 2.0 http://Duncan.co/canada-post-truck

Last week, we looked at the much anticipated Vavilov decision, in which the Supreme Court of Canada rewrote the analytical framework to be applied in judicial reviews of administrative decisions.

The Court applied this new framework in the second decision, Bell Canada v. Canada (Attorney General). This case considered how Canadian television stations substitute Canadian commercials for the American ones during U.S. television broadcasts aired on Canadian television stations, including the Super Bowl. Doing this allows Canadian broadcasters to realize greater revenue, by selling commercial spots to Canadian advertisers.

In 2013, the CRTC was reviewing the entire regulatory framework of television. During this process, some Canadians complained about not being able to view U.S. commercials on Canadian television stations.  In 2016, the CRTC issued an order prohibiting substituting American commercials with Canadian ones.

Bell had an exclusive licence from the NFL to broadcast the Super Bowl in Canada. It challenged the CRTC’s order.

In a 7: 2 decision, the majority of the Court held that the CRTC’s order was not authorized by the provision in the Broadcasting Act it relied on. That provision did not give the CRTC the authority to require broadcasters to show American commercials.  

Seven judges were of the opinion that “because the issues in these appeals raise legal questions that go directly to the limits of the CRTC’s statutory grant of power, and therefore plainly fall within the scope of the statutory appeal mechanism referred to above, the applicable standard is correctness.”

A “correctness” standard means the underlying decision is more closely scrutinized by the court. 

The result is that, unless the CRTC has another legislative provision to rely on, or the federal government amendments the legislation, Canadians will not be viewing U.S. Superbowl commercials on Canadian T.V.

The Court also applied the new framework in the third decision, Canada Post Corp. v. Canadian Union of Postal Workers. This case involved safety issues for letter carriers.  A health and safety officer found that Canada Post as employer failed to ensure that every part of the workplace was inspected annually. 

An appeals officer concluded that the inspection obligation applied only to the parts of the workplace over which the employer has control. He concluded that this did not include letter carrier routes or points of call. On this basis, the original decision was rescinded.

The Federal Court of Appeal was more sympathetic to the Union. It overturned the appeals officer’s order.

In another 7:2 decision, the Supreme Court of Canada restored the appeals officer’s order. It decided that his interpretation of the workplace inspection obligation was “reasonable.”

The two dissenting judges considered that the appeals officer’s reasoning process was “deeply flawed.”   They point out that safety inspections are “central” to protecting workers’ health and safety. Inspections “exist to proactively identify hazards before workers are exposed to them, and ensure that they will either be fixed or avoided.” 

The dissenting judges stated that “safety inspections should be done in a way that protects employee safety as much as possible in the circumstances, not in a way that deprives whole categories of workers — those who work outside a physical building — from protection.”  “Just because inspections may be difficult does not mean that they do not have to be done at all, and just because hazards cannot be fixed entirely does not mean that nothing can be done to address them.”

This trilogy of cases – Vavilov, Bell Canada and Canada Post – opens the door for greater scrutiny by courts of decisions made by administrative decision makers. 

Some feel that the court has not yet gone far enough in rewriting the law in this area.

Until this area of law is again rewritten, Vavilov will be the starting point when challenging decisions of any administrative bodies within Canada.