Executive Summary: Key Legal and Evidentiary Issues

• Whether the Commission gave adequate reasons for ordering alternative dispute resolution was the first ground Rogers pressed on review.
• Reasonableness of the discretionary remedy—staff-assisted mediation followed, if needed, by final offer arbitration—was disputed and ultimately upheld.
• Consistency was questioned, since the Commission ordered dispute resolution here but had not done so in certain other cases.
• Waiver barred Rogers from objecting to Timeless' updated information, because it never raised that concern before the Commission.
• Jurisdiction to order mandatory alternative dispute resolution was treated as a new issue that could not be introduced for the first time on review.
• Functus officio did not apply, as the Commission had found undue preference and still had to decide the remedy.

Facts of the case

Rogers Communications Canada Inc. refused to carry Timeless Inc.'s OneSoccer channel on its cable and satellite systems. The Canadian Radio-television and Telecommunications Commission found that this amounted to an undue preference in favour of existing channels, contrary to section 9 of the Broadcasting Distribution Regulations, S.O.R./97-555. Having already found undue preference in Broadcasting Decision CRTC 2023-94, the remaining question was the appropriate remedy. By letter decision dated December 19, 2025 (file 2022-0445-2), the Commission ordered Rogers and Timeless into staff-assisted mediation and, if that should fail, final offer arbitration. Rogers appealed that decision with leave and also applied for judicial review of it. Given the urgency of the matter, the Court scheduled an expedited hearing. The Court questioned why a separate judicial review had been brought at all, but, consistent with Best Buy Canada Ltd. v. Canada (Border Services Agency), 2025 FCA 45, Rogers moved quickly to consolidate the appeal and the application.

Regulatory and statutory provisions at issue

Because this was a regulatory dispute rather than a contractual one, no private policy terms or contractual clauses were in play. The provisions at issue were statutory and regulatory: section 9 of the Broadcasting Distribution Regulations (undue preference), the public policy goals of the Broadcasting Act, S.C. 1991, c. 11, and—raised late by Rogers—paragraphs 9(1)(h) and 10(1)(h) of the Act together with sections 12-15 of the Regulations, said to bear on whether the Commission could order mandatory alternative dispute resolution. The Court expressly left the scope of that power to be resolved in a proper case.

The court's reasoning and analysis

Rogers advanced a wide range of arguments, and the Court rejected each. On adequacy of reasons, the Court applied Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, reading the Commission's reasons in light of the record. The Commission had explained that Rogers' proposal "may not necessarily lead to a resolution of the dispute in a timely manner," that there was an "imbalance in the parties' bargaining positions," and that further delay would undermine important policy objectives. Dealing with a discretionary, factually suffused matter carrying some urgency, the Court held that extensive court-style analysis was not required—particularly because Rogers, a sophisticated participant the Court described as a "frequent flyer, not an occasional tourist," could be in no doubt as to why the Commission acted. The Court found no error of law, palpable and overriding error, or unreasonableness in the Commission's assessment that Rogers' proposed remedy was unlikely to be acceptable to Timeless and that dispute resolution was useful and needed. Ordering such resolution here while not in other cases reflected case-specific discretion rather than a departure from precedent, especially as over two years had passed since the undue preference decision. The complaint that the Commission unfairly considered new evidence failed: the Commission had invited the parties to "provide updated information," Timeless did so, and Rogers never objected, so the doctrine of waiver barred the point. Rogers' challenge to the Commission's power to order mandatory dispute resolution was a new issue—supported below only by an "idle, passing comment"—which the Court declined to entertain. Finally, functus officio did not apply, because the Commission had decided the question of undue preference in 2023-94 and was now properly addressing the remedy.

Ruling and outcome

The Court dismissed both the appeal and the application for judicial review, with costs. Timeless Inc., together with the Attorney General of Canada, stood as the successful respondents, and costs were awarded in their favour against Rogers. The judgment does not state a dollar figure, so the quantum of costs is not specified in the decision.