Canadian Lawyer InHouse

39 CANADIANLAWYERMAG.COM/INHOUSE MARCH 2017 P r o f e s s i o n a l P r o f i l e BY SHELDON GORDON In defence of the regulatory process The CRTC's general counsel, Christianne Laizner, says the past 18 months of CRTC decision-making have been a 'watershed moment' for the agency. IN FEBRUARY 2015, Bell Media wrote to the CRTC requesting private meetings with some or all of the commissioners to discuss their decision to eliminate simultaneous substitution on Super Bowl commercials. The decision means that, starting in 2017, Canadians will be able to view American- based commercials on U.S. television sta- tions carried by the country's cable and other systems. (Canadians will still be able to watch the Canadian telecast, including Canadian commercials, on Canadian channels.) Bell was upset that, as owner of the Canadian broadcast rights to the Super Bowl through CTV, it would no longer be allowed by the regulator to substitute Canadian commercials in place of the American advertisements. In response to its request, the media com- pany received a stern letter of rebuff from the Canadian Radio-television and Telecommu- nications Commission. The regulator replied that its decision was the result of a public pro- cess still ongoing and that it would be inap- propriate for commissioners to hold private meetings with Bell to discuss the decision. This staunch defence of the integrity of the regulatory process was signed by Chris- tianne Laizner, who joined the CRTC's le- gal branch in 2010 and has been its senior general counsel since 2013. "Our role as lawyers is to ensure the fairness of CRTC proceedings," she says. "We deal with ad- ministrative fairness." The "simsub" policy change is not a done deal yet. Bell is appealing the regulatory decision to the Federal Court of Appeal. But Laizner points to an earlier ruling by the appellate court in May 2015 upholding the CRTC's Wireless Code of Conduct as a harbinger that the Bell application will be dismissed. "They [Bell] say they have vested con- tractual rights with the National Football League and the commission's decision is interfering with that," says Laizner. "That was one of the arguments made at the time the wireless code was challenged. Part of that challenge was that the wireless code improperly affected the contractual rela- tionship between a wireless service provider and its customer. They were basically argu- ing that we didn't have the ability to inter- fere with those contractual rights. And the Court of Appeal dismissed that challenge." Laizner reports to CRTC chairman Jean-PIerre Blais, a lawyer who specialized in the broadcast sector. "I always like engag- ing with commissioners who are lawyers be- cause they understand the legal arguments," she says. "It makes our job here easier when you're talking to someone who has been trained in the same discipline." But she notes a clear demarcation between the two roles. "My job is to lay out the different options and what their [legal] impact might be. It's the job of the commissioners to decide where they want something to land in the public interest. I never worry personally whether a decision might create greater legal risk, because then it becomes an interesting challenge of My job is to lay out the different options and what their [legal] impact might be. It's the job of the commissioners to decide where they want something to land in the public interest. I never worry personally whether a decision might create greater legal risk, because then it becomes an interesting challenge of managing that legal risk. CHRISTIANNE LAIZNER, CRTC

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