Supreme Court agrees to hear case from Bell, NFL on Super Bowl ads

The Supreme Court of Canada is going to play referee to help resolve the question of whether Canadians should be able to watch big- budget American commercials during the Super Bowl.

The court said Thursday it will hear appeals from Bell Canada and the National Football League over a CRTC ruling that exempted the football championship from normal practice in which Canadian ads are substituted for U.S. ones on Canadian TV.

To many Canadian fans, the highly anticipated Super Bowl commercials are considered part of the entertainment of the championship broadcast and for years there were complaints about missing them. Many turned to watching them online.

In 2016, the broadcast regulator decided that in the case of the Super Bowl, substitution was not in the public interest and excluded the game from the normal TV practice.

Bell has an exclusive licence from the NFL to broadcast the Super Bowl in Canada. It recovers the costs of that licence by selling ad time to Canadian businesses to be inserted into the Super Bowl broadcast on both Canadian and American stations.

The company said the CRTC decision cost it viewers, not to mention millions in revenue.

It argued — along with the league — that the CRTC order conflicted with Canadian broadcasting policy and regulations, targeted a specific program and violated the Copyright Act.

In a December judgment against Bell and the NFL, Justice David Near of the Federal Court of Appeal found there was “a certain irony” that legislation aimed at protecting Canada’s broadcasting industry was used to allow for American ads, to the apparent detriment of the industry.

“But there are numerous disparate objectives set out in the Broadcasting Act and Parliament intended that the CRTC decide how best to balance competing policy objectives related to broadcasting in Canada,” Near wrote.

“It is not for the court to engage in weighing these competing policy objectives and substituting its own view in deciding which policy objectives should be pursued.”