Executive Summary: Key Legal and Evidentiary Issues

• Judicial review of the Copyright Board's Second Redetermination Decision, dated June 20, 2025, on a tariff of retransmission royalties for the years 2014–2018 was the subject of this application.
• Central to the dispute was whether the Board acted unreasonably in setting the Settlement Date at September 30, 2019, a date years in the past.
• Whether the Board was functus officio or otherwise lacked jurisdiction to amend the Settlement Date arose as a key legal question.
• Also contested was whether the Court's ruling should extend beyond the Settlement Date to the other transitional provisions in the Tariff.
• Interpretation of the scope of the remedies sought in the applicants' notice of application determined the reach of the available relief.
• Costs formed the final matter addressed by the Court.

Facts of the case

The applicants — Bell Canada, Rogers Communications Inc., Cogeco Communications Inc., Videotron Ltd., Telus Communications Inc., Shaw Communications Inc., and The Canadian Communication Systems Alliance — sought judicial review of a decision of the Copyright Board dated June 20, 2025. That decision, the Second Redetermination Decision, concerned a tariff of royalties payable by retransmitters (including the applicants) to the respondents for the retransmission of distant television signals in Canada for the years 2014–2018 (the Tariff). It was the Board's third final (non-interim) decision on the Tariff. The Board's original decision, issued August 2, 2019, had prompted a first application for judicial review that the Court granted on July 22, 2021 (2021 FCA 148), leading to a first redetermination decision dated January 12, 2024. That redetermination in turn prompted a second application for judicial review, granted by the Court on May 8, 2025 (2025 FCA 92, the Second Judicial Review Decision), which produced the Second Redetermination Decision under review here. The matter was dealt with in writing without appearance of the parties.

The tariff provisions at issue

The only issues concerned the Settlement Date and other transitional provisions discussed in paragraphs 34 and following of the Tariff. The Settlement Date represents the date on which amounts owing under the Tariff are due and after which interest accrues at a higher rate than before. In the Second Redetermination Decision, the Board set the Settlement Date at September 30, 2019 — a date years in the past. The parties agreed that selecting a date in the past was inappropriate because it was inconsistent with the Board's past practice, including in respect of this Tariff, and because the Board gave no explanation for the choice. When the applicants raised this issue, along with a separate concern about rates for mid-sized transmission systems, the Board corrected the mid-sized transmission systems problem as a clerical error but took the position that it could not amend the Settlement Date. The Board stated that its jurisdiction after rendering a decision is constrained, citing the SODRAC decision (2014 FCA 235) and the Second Judicial Review Decision (2025 FCA 92), and expressed the view that it had neither the power nor jurisdiction to make the change sought by the BDUs or the changes suggested by the Collectives.

The court's reasoning and analysis

Justice Locke agreed with the parties that setting the Settlement Date in the past was inconsistent with the Board's general practice and lacked adequate explanation, and was therefore unreasonable. He observed that it was unclear whether the Board believed it lacked the power to amend the Settlement Date because of the Second Redetermination Decision — that is, whether it considered itself functus officio in 2025 — or because of the Original Decision in 2019; either way, it was appropriate for the Court to intervene. If the Board felt it had become functus officio in 2025, the decision set aside that concern. If instead the Board had read the Second Judicial Review Decision as prohibiting any changes to the Original Decision beyond those explicitly mentioned in it — even changes that naturally follow or are consequent — that reading was unreasonable, because the parties had not raised the Settlement Date in the earlier application and that decision said nothing about it. The Board was entitled to select a Settlement Date consistent with its usual practice, and nothing in these reasons was intended to alter the Second Judicial Review Decision. On the other transitional provisions, the Court found that the remedies sought in the notice of application were sufficiently broad to encompass them; although the applicants had initially taken the position that extending the ruling to those provisions would be inappropriate, the parties ultimately agreed that the Judgment should address them.

The ruling and outcome

The Court set aside the Board's ruling on the Settlement Date and remitted that issue to the Board for reconsideration, and it did the same with regard to the other transitional provisions. The applicants — the retransmitters led by Bell Canada — obtained the relief they sought; although they had initially resisted extending the ruling to the other transitional provisions, the parties ultimately agreed it should reach those provisions as well. The Court made no award of costs, so no monetary amount was ordered, granted, or awarded in favour of the successful party.