Canada: From Broadcasting To Telecommunications And Everything In Between: Reflections On The Recent New Developments In Communications Law And Policy Conference

We recently attended the 18th Biennial National Conference: New Developments in Communications Law and Policy, a national symposium of the Law Society of Upper Canada and the Entertainment Media and Communications Law section of the Canadian Bar Association.  This conference is always a stimulating and fascinating opportunity to share thoughts with colleagues in the Canadian communications sector.  This year's event was no exception.

Day One: Broadcasting, Privacy and Data

The conference kicked off with a plenary session on the state of the Canadian rights market.  Jay Kerr-Wilson and Ariel Thomas, both of Fasken Martineau DuMoulin LLP, explained how the existence of a distinct Canadian rights market was not an accident: it was the product of regulatory interventions designed to support it, beginning with the creation of the Broadcasting Act and the associated Canadian ownership and simultaneous substitution rules.  But, in the age of global over-the-top program delivery, with a major cultural policy review about to begin, important questions need to be asked and answered.  University of Ottawa law professor Jeremy de Beer noted that the rights market initially evolved to serve cultural policy objectives which are distinct from the economic interests of market participants.  In order to figure out the appropriate response, we first have to be clear on what we are trying to accomplish.  Susan Wheeler, vice-president (regulatory media) at Rogers Media Inc., agreed that the upcoming review offered an important opportunity to set out clear policy goals and to ensure that the tools available were adequate to meet them.

Following the opening plenary round, the conference broke into parallel streams.  One session picked up on themes from the plenary, with a deep dive into the changing landscape of broadcast regulation in Canada.  Ottawa communications lawyer Joel Fortune began with a review of some significant CRTC decisions dealing generally with concentration of the broadcasting sectors, ultimately leading to the Wholesale Code.  He then considered current challenges facing independent broadcasters in particular and what hints as to what the future regulatory direction might be.  Corus Entertainment's general counsel Gary Maavara noted that traditional broadcasting remained very strong in Canada, and challenged the audience (and policy-makers) to avoid the assumption that we were trapped in a zero-sum game.  Vice-president (broadcast policy and regulatory affairs) at TELUS Communications Ann Mainville-Neeson emphasized the importance of exporting content and competing globally and stressed the policy should seek to create level playing fields.  Kevin Goldstein, vice-president, regulatory affairs, content and distribution, Bell Media, discussed the state of pick-and-pay, stating that it was where the industry was heading eventually, but stressing that market choice should also involve market pricing.

In a concurrent session, Canada's former privacy commissioner Chantal Bernier (now of Dentons LLP) presented a paper on big data, arguing for a fair deal for both marketers and consumers. Through the lens of Canada's codified privacy principles, the paper explored how data that includes personal information can be used legally and what restrictions follow. Specifically, Ms. Bernier noted how use of personal information can be linked to "customer intimacy." But, as with any intimate action, consent is necessary. Accordingly, she argued a "fair deal" for big data must be based on valid and informed consent. David Elder of Stikeman Elliot LLP moderated the ensuing panel discussion. Google's Head of Public Policy and Government Relations Colin McKay spoke of data as an asset that is necessary to innovation and the public good, noting for example the use of data to improve health care. Regan Morris, legal counsel at the Office of the Privacy Commissioner of Canada questioned whether existing privacy laws were sufficient to deal with the big risks associated with big data. He noted that, when big data involves personal information, marketers have incentives to make predictions about specific individuals.

Over lunch, Jeffrey Campbell of Cisco commented on the state of Canada's IP networks.  The good news was that, compared to other countries, Canada's "network readiness" was strongest in the areas that were hardest to fix.

After lunch, the streams separated again for a final session.  On one side, our colleague Kirsten Thompson presented her paper on legal challenges relating to the Internet of Things.  Corinne Charette, Senior Assistant Deputy Minister of Innovation, Science and Economic Development Canada, noted that machine-to-machine (or M2M) communication is not entirely new.  But what has changed is that, increasingly, M2M communication is now self-initiated.  Humans are no longer necessarily aware of the information that is being transmitted and this challenged the ideas of transparency and consent.  Senior general counsel at the Office of the Privacy Commissioner of Canada Patricia Kosseim asserted that meaningful consent requires the existence of alternatives and wondered what would happen when the market no longer offered the ability to turn the devices off.  Bruce Gustafson, principal at Loquitor Group, noted that the view into large scale systems like cities and transportation networks provided by widespread instrumentation with sensors would change how we organize our societies.  But he also noted that not all changes benefit everyone.  He cited in particular the example of how apps like Waze have redirected vehicular traffic from major arteries to suburban environments.

The concurrent session looked at the regulatory and competitive challenges in Canada's wireless market. Dr. Jeffery Eisenach, senior vice-president, NERA Economic Consulting, presented his paper on a proposed regulatory framework for the digital ecosystem, which is made up of three key characteristics: modularity, economies of scale and scope and dynamism (dynamic competition). The discussion included both industry and regulatory challenges associated with digital convergence. Specifically, Dr. Eisenach argued that regulatory discrimination impedes competition by discarding certain innovations, requiring organizations to disclose proprietary information, and increasing the time to market.  Kirsten Embree of Dentons LLP moderated the panel discussion that included remarks from Bell Canada's Director of Regulatory Affairs Serge Bertuzzo and Wind Mobile's Chief Regulatory Officer Bob Boron.

Day 2: Professionalism and Telecommunications

Day two began with the first of two professionalism sessions, offering career advice to early-stage practitioners. PGYA Consulting's Colin Lachance offered three tips: expand your definition of success; expand your idea of what a lawyer should do; and expand your understanding of outside forces.  Former senior vice-president at Rogers Communications Ken Englehart stressed that it was important to do what seemed like fun, but that one should always try to take on the "ugly" files. Toronto communications lawyer Monique Lafontaine emphasized the importance of developing a network, for junior and senior practitioners alike.  And director of regulated agreements at TekSavvy Solutions Andy Kaplan-Myrth noted that a career path is often only visible in hindsight.

The next session focused on Net Neutrality.  This topic had been lurking in the background of a number of the previous sessions, with various speakers alluding to it in passing.  But this session took it head-on.  Bram Abramson, chief legal and regulatory officer at TekSavvy Solutions, distinguished wholesale access, network interconnection, and market competition from network neutrality, arguing that regulators have perhaps not established an adequate framework for the policy analysis.  Russel Blau of Morgan Lewis & Bockius LLP (Washington D.C.) described the regulatory history in the U.S., noting that the FCC's presumption is that there will not be enough retail competition to eliminate the need for net neutrality regulation.  Ted Woodhead, senior vice-president (federal government and regulatory affairs) TELUS Communications stated that, from his perspective, the whole issue was a red herring, dreamed up by law professors to address theoretical harms. CIPPIC's Tamir Israel disagreed, reviewing the long history of common carriage principles and explaining how the Internet's ability to function as an incubator of innovation was linked to its architectural design.

At that point, the streams diverged again.  One stream considered whether national security reviews were becoming a de facto means of regulating foreign ownership.  The panel, featuring Michael Koch of Goodmans LLP, Anne Salladin of Stroock & Stroock & Lavan LLP, as well as Ray Boivert, a senior associate at Hill + Knowlton Strategies, generally agreed this was not the case.  Although certainly security oversight was increasingly important in Canada, and elsewhere, this was a sensible reaction to real concerns and not a colourable attempt to disguise trade or industrial policy.

The concurrent panel tackled the role of the CBC as Canada's public broadcaster, including what media platforms the CBC should focus on, its mandate to foster culture and diversity, and how it can coexist with and thrive against the private sector. Christopher Taylor moderated the panel discussion by founder Steve Anderson, adjunct professor and former "CBCer" Sylvain Lafrance, and CEO of Blue Ant Media Inc. Michael MacMillan. All agreed that the CBC needs a long-term funding commitment from government to be able to plan and execute meaningful operations. Mr. Anderson discussed the modern CBC as a public media platform, rather than a broadcaster. As a long-time employee of the CBC, Mr. Lafrance reflected on his realization – after leaving the CBC – that the organization could do a better job of partnering with external groups. Mr. MacMillan explained that public broadcasting is a public good and the CBC represents a public space. He stressed that elected Parliamentarians, not private actors, should make decisions about the CBC's role.

The lunchtime keynote address from Jeffery Simpson surveyed the new federal government's ambitious policy agenda, noting the remarkable number of major policy reviews that have been announced.  In this context, although Minister Joly's announcement of a cultural policy review took many observers by surprise, Simpson argued it was typical of this government's approach.

The final panel of the conference was a professionalism session on social media and the practice of law. CRTC staff lawyer Crystal Hulley presented a thoughtful paper considering how much of the commentary on this subject was built on presumptions that made sense in a judicial context, but that might need some modification for administrative law practitioners. Dentons LLP counsel Bob Tarantino made an impassioned plea for lawyers to set aside their fear of participating in public debate and to take advantage of the opportunities offered by social media.  While University of Ottawa law professor Michael Geist argued that, if encouraging public participation in administrative proceedings was the goal, procedural rules should be revised to fully integrate social media into the record.

This last point elicited a lively response from the floor, with commenters questioning the fairness implications of direct social media interactions between parties and the tribunal, the ability to drown out or distract from the submissions of the parties, and the challenge of how to properly digest and respond to a record that might contain thousands or tens of thousands of social media submissions.  In a sense, this exchange was a perfect capstone to the conference: it offered thoughtful and creative attempts to reconcile principles with practicality.

To view the original article please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.