Judicial review of Québecor-Bell undue preference dispute over sports packaging dismissed by court

The Federal Court of Appeal found that the CRTC was correct in allowing Québecor Inc. to bring forward an undue preference complaint against BCE Inc. over sports packaging, despite the two parties having reached a final arbitration offer in 2018. Bell applied for judicial review of a 2019 CRTC decision in which it found that the incumbent had given itself an undue preference to its French-language discretionary sports service, RDS, and subjected Québecor’s national French-language sports service TVA Sports to an undue disadvantage, arguing the matter had been resolved through arbitration. In its Tuesday decision, released Friday, the court found that a CRTC final arbitration offer (FOA) decision only resolves matters relating to market rates – in this case the rate that Bell was to pay Québecor for the right to carry TVA. “On the other hand, the issue in the undue preference complaint was whether Bell had abused its position as a distributor of programming services by giving itself (more precisely, its own PU) an undue preference at the expense of another PU,” Justice Denis Pelletier wrote on behalf of the court. In March 2019, Québecor filed a complaint with the CRTC arguing that Bell conferred an undue preference on its own RDS French-language sports channel by excluding TVA from Bell’s least expensive and most popular “Bon” TV bundle package. Bell instead chose to put TVA Sports in its higher cost package, Meilleur and Mieux, as well as à la carte or in build-your-own-packages. RDS was made available through Bon as well as the other packages in which TVA was offered. Bell argued that the fairness of its packaging was settled in a 2018 FOA between the two companies. Bell said the commission accepted Bell’s final offer, therefore, it was precluded from reconsidering the issue of packaging under the guise of a complaint alleging that Bell gave itself an undue preference. The CRTC sided with Québecor, having found that TVA’s exclusion “had, and continues to have, a material adverse impact on TVA’s operations.” The CRTC noted that an FOA decision is conducted on the basis of relevant fair market value factors and there are no such criteria for analyzing undue preference allegations. It found that packaging, the main issue in Québecor’s complaint, was not a factor that it considered in the FOA. The CRTC gave Bell until Feb. 5 , 2020 to report back with a new packaging structure but the company instead appealed the decision a month before the deadline once again arguing that the matter was determined in the 2018 FOA. The leave for appeal was dismissed, but as per the court’s usual practice, no reason was given for dismissing the appeal. Bell then filed an application for judicial review. In its filing, Bell argued that the commission erred by relying “on the absurd premise that there are no criteria for analyzing undue preference allegations such as those used in FOA proceedings;” that it “makes the unfounded generalization that the factors examined in the 2018 FOA and the undue preference decisions are not comparable;” and that its “ultimate conclusion that packaging was not considered in the 2018 FOA Decision cannot follow from the line of analysis it provided.” The court dismissed the application for review on the basis that the FOA and undue preference decision did not decide the same question, “that the legal constraints which Bell alleges are inapplicable in the circumstances and that the factual constraints upon which Bell relies were not in fact constraints upon the commission’s decision making,” – Reporting by Jenna Cocullo at jcocullo@thewirereport.ca and editing by Stephen Jeffery at sjeffery@lobbymonitor.ca.

Judicial review of Québecor-Bell undue preference dispute over sports packaging dismissed by court

Broadcast | September 9, 2022

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