In defence of the regulatory process
- Subtitle: Professional Profile
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 stations 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 company received a stern letter of rebuff from the Canadian Radio-television and Telecommunications Commission. The regulator replied that its decision was the result of a public process still ongoing and that it would be inappropriate 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 Christianne Laizner, who joined the CRTC’s legal 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 administrative 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 contractual 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 relationship between a wireless service provider and its customer. They were basically arguing that we didn’t have the ability to interfere 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 engaging with commissioners who are lawyers because 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 managing that legal risk.”
She points to the CRTC’s creation of the wireless code three years ago as an example of where it was foreseeable that the wireless providers might take the issue to court, but the commissioners nevertheless pushed “the envelope of legal risk” because they considered it in the public interest to spell out rights and regulate contracts for mobile customers.
Laizner oversees a unit of 24 lawyers. Four are “team leads” that manage files in specific areas: telecom, broadcasting, enforcement and consumer and social policy. It’s a structure that enables some lawyers to handle files in a mix of areas, while others may work exclusively in one area, such as enforcement. “We try to accommodate lawyers’ professional aspirations that way, as well as giving young lawyers an opportunity to develop in all areas,” she says.
At least one commission lawyer always attends the public hearings held by the CRTC prior to making major decisions. Laizner herself often sits in on portions of hearings or tunes in to them on the Cable Public Affairs Channel. “As a lawyer, you know where the points will come up in a hearing where it would be important to pay closer attention,” she says.
The past 18 months of CRTC decision-making following its “Let’s Talk TV” public consultations have been a “watershed moment” for the agency, she says, citing policies such as simsub, pick-and-pay television channel choice for consumers and more opportunities for Canadian content creators. “I found being part of that process quite exciting.”
The Montreal-born, bilingual Laizner says she “fell into law” as a career.
“I was one of those students who didn’t know where I wanted to go as a career path. When I was accepted at Western University and actually studied law, however, I got excited. I found the intellectual process that you learn at law school to be very interesting.”
She spent five years in private practice, making partner at Chown Cairns Lawyers LLP in St. Catharines, Ont. after relocating from Toronto due to her husband’s career. She specialized in civil litigation, family law and insurance defence litigation.
When another spousal relocation brought her to Ottawa, she explored opportunities in both the private and public sectors. “I wanted to get slightly out of the family law area, and I found that gaining public sector experience would accomplish that. Again, it was one of those things where you get into it and your appetite for it grows. I really enjoyed the macro level of legal issues that you deal with in the public sector,” she says.
Starting with the Justice Department as a civil litigator in 1987, she became counsel to Foreign Affairs from 1992 to 1996. She provided legal advice on first the Canada-U.S. Free Trade Agreement and then its successor, the North American Free Trade Agreement.
“My work on the FTA was in the detailed negotiation of the implementation of it between the two countries and bringing into force all the amendments that were required to existing legislation in Canada,” she recalls. (She received the Justice Department’s Merit Award for her work on the FTA.)
For the NAFTA negotiations, she was involved from the outset. She focused on Chapter 19, the bi-national dispute settlement process for anti-dumping and countervailing duty cases. Both accords, she recalls, demanded “a lot of round-the-clock negotiations and frequent travel to the U.S. and Mexico.” She was also Canada’s legal adviser on the 1995 softwood lumber agreement with the U.S.
From 1997 to 2007, Laizner was at Public Works as co-manager of its litigation and procurement review practice group. She defended the federal government’s procurement decisions or processes against legal challenges by unsuccessful bidders.
“I would defend before the Canadian International Trade Tribunal and also provide litigation support before the Federal Court,” she says. She also advised other government departments on how to conduct a fair procurement based on the jurisprudence that emerged from the CITT or from the Federal Court.
Laizner then headed the legal services branch at the Canadian International Development Agency for three years. “I was there when there was a lot of legal work involved in contracting by CIDA in war-torn areas of Afghanistan.”
The move to the CRTC in 2010 to become general counsel for telecommunications represented a major shift in legal roles for Laizner. “In my legal career, I had been engaged in litigation in front of administrative tribunals and courts.” She had often wondered, “What’s it like to be inside a court or tribunal and provide legal advice to the decision-makers on the cases that come before them? This was an opportunity to be inside a decision-maker.”
60 SECOND SNAPSHOT
• Attended Western Law at Western University in London, Ont.
• Spent five years in private practice, making partner at Chown Cairns Lawyers LLP in St. Catharines, Ont.
• Started with the Justice Department as a civil litigator in 1987; she became counsel to Foreign Affairs from
1992 to 1996.
• Advised on first the Canada-U.S. Free Trade Agreement and then its successor, the North American Free Trade Agreement.
• Received the Justice Department’s Merit Award for her work on the FTA.
• Moved to the CRTC in 2010 to become general counsel for telecommunications. Now oversees a unit of 24 lawyers.
Published in Issue Archive