Friday, 5 April 2013

The "Rogers Exception": Some Recent Canadian Standard of Review Decisions

In my essay on deference and the copyright cases, I suggested that an innovation the Supreme Court of Canada made in Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 would bedevil lower courts. Briefly, the exception suggests that where there is co-ordinate jurisdiction between courts and administrative decision-makers to interpret statutory provisions, the standard of review is automatically correctness. I previously noted an early example with some satisfaction.

In recent weeks, the Rogers exception has been the subject of judicial treatment on several occasions. However, it has not had any effect -- which, given that I described the innovation as "unfortunate", I am pleased to see.
The Federal Court of Appeal handed down an important competition law decision in Tervita Corporation v. Commissioner of Competition, 2013 FCA 28. At issue were two appeals challenging a divestiture order in respect of secure landfill operations in Northeast British Columbia. Mainville J.A. held that legal elements of the impugned decision were reviewable on a standard of correctness, but that policy and factual questions were reviewable on a standard of reasonableness. There was no need for especially detailed analysis on standard of review. The question had been resolved by a previous decision of the Federal Court of Appeal. There was thus no detailed discussion of the Rogers exception:
[55]           The Supreme Court of Canada has found that, since Dunsmuir, the interpretation by an adjudicative tribunal of its enabling statute or of statutes closely related to its functions should be presumed to be a question of statutory interpretation subject to deference on judicial review: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 (CanLII), 2011 SCC 61; [2011] 3 S.C.R. 654 (“Alberta Teachers’ Association”), at paras. 34 and 41. That presumption may however be rebutted if it can be found that Parliament’s intent is inconsistent with its application: Rogers Communication Inc. v. Society of Composers, 2012 SCC 35 (CanLII), 2012 SCC 35 at para. 15.

[56]            In this case, Parliament has specifically provided that the decisions of the Competition Tribunal are subject to an appeal rather than judicially reviewed. Accordingly, the presumption set out in Alberta Teachers’ Association may not apply, but it is not necessary to decide this issue in this appeal. Indeed, I am of the view that if that presumption applies, it has been rebutted. Consequently, in my view, Superior Propane # 2 determined in a satisfactory manner that the standard of correctness is the appropriate standard of review on questions of law arising in an appeal from the Competition Tribunal. (My emphasis.)
I have highlighted the most interesting kernel in this passage. One of the issues unclear in the wake of Dunsmuir is how precisely any presumption of reasonableness is to be rebutted. This passage suggests that it is to be rebutted by reference to legislative intent, which presumably means a full, four-factor standard of review analysis. Of course, if that is the case, one can query the utility of replacing the four-factor analysis with a set of presumptions in the first place, because at the end of the day, the task for the reviewing court is the same. On the merits, incidentally, the appeals were dismissed.

Another important recent decision is that of the Ontario Divisional Court in Cornish v. Ontario Securities Commission, 2013 ONSC 1310. The question here was whether the appellants had failed to disclose a material change in their business, in violation of the Ontario securities legislation. The Commission thought not and issued enforcement proceedings, the ultimate outcome of which was a series of heavy penalties. One of the questions was whether there had been a material change within the meaning of the Securities Act.

Ducharme J. applied a standard of reasonableness, on the basis that the Commission was interpreting its home statute and the matter fell within its specialized expertise. His reasons for rejecting the applicability of the Rogers exception were, with respect, unconvincing:
[35]               While the Supreme Court of Canada applied a correctness standard in Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada[9], it did so in a context where both the courts and the Copyright Board were engaged in interpreting copyright legislation at first instance.  The Court described this as an “unusual statutory scheme”.  In contrast, in the securities context, the courts have long recognized the special expertise of securities commissions in the regulation of securities markets. 
It is undoubtedly the case, however, that courts as well as the Commission can find themselves interpreting provisions of the Securities Act at first instance. The definition of material change is actually a good example, because it underpins one of the sections imposing civil liability for non-disclosure, namely s. 134 (see e.g. here). I think Ducharme J. arrived at the right conclusion, but I think the reasons for refusing to apply the Rogers exception in the securities context need to be articulated at greater length. On the merits, the Commission's findings and sanctions were upheld as reasonable.

Finally, (and thanks to Jeremy de Beer for bringing this one to my attention) the Federal Court of Appeal had hardly anything to say about standard of review in Manitoba v. Canadian Copyright Licensing Agency (Access Copyright), 2013 FCA 91:
[26]           As this application for judicial review concerns a question of law of general application in respect of the Act, the standard of review is correctness (Rogers v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 (CanLII), 2012 SCC 35 at paragraphs 10 and 20).
As simple as that! On the merits, the applicant provinces were held to be subject to the Copyright Act just like the rest of us mere mortals.

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