Thursday, 6 March 2014

Curbing 'Coherence' as a Reason for Correctness Review in Canadian Administrative Law

Late last year, the Supreme Court of Canada derided "fashionable" claims by applicants for judicial review that a correctness standard should apply in the review of administrative decisions. Yet such claims continue to be made successfully before lower courts. Sometimes they are plausible (see here), sometimes they are not (see here, at para. 59). Clear guidelines as to when cases fall into one category rather than another have not been forthcoming. There has, however, been some movement towards curbing the extent of one of the 'correctness categories'.

In McLean, the case in which applicants were admonished to cease being "fashionable", the Court summarily rejected one of the arguments for correctness review. In Rogers, the Court had substituted its interpretive view for that of the Copyright Board on the basis that the relevant question could have been raised at first instance before a court. On appeal, the standard would have been correctness. Coherence thus required correctness review in judicial review as well.

As I noted at the time, the contours of this 'coherence category' were unclear. Rogers did suggest that in statutes where regulatory enforcement was shared between an agency and the courts, correctness would be the standard, though courts have been reluctant to push Rogers to its logical conclusion. The applicant in McLean made this argument and received the back of the Court's hand:
[24]                          This case is different.  As Rothstein J. made clear in Rogers, it was the fact that both the tribunal and the courts “may each have [had] to consider the same legal question at first instance” that “rebutt[ed] the presumption of reasonableness review” (para. 15 (emphasis added)).  Here, the legal question is the interpretation of s. 159 as it applies to s. 161(6)(d) — and it is solely the Commission that is tasked with considering that matter in the first instance.  Accordingly, there is no possibility of conflicting interpretations with respect to the question actually at issue.  The logic of Rogers is thus inapplicable.
Because the same question could not arise at first instance before both the Commission or a court, Rogers did not apply. This limitation on Rogers is itself relatively limited: while the validity of an order barring an individual from engaging in the securities market presumably could be raised before a court in a private-law action, the order would necessarily have to have been issued. The Commission would have had to have acted first by imposing the order.

A more thoroughgoing attack was made by Evans J.A. in Re: Sound v. Fitness Industry Council of Canada, 2014 FCA 48. The issue here was whether a collective society was entitled to receive royalties for all music performed in fitness classes or only royalties for those artists who had authorized it to do so. Evans J.A. acknowledged that it would be possible that a court would have to broach this question at first instance, but that such an action could proceed only with ministerial consent (at para. 48). He therefore dismissed the suggestion that Rogers thereby applied:
[49]         In my view, this theoretical and somewhat remote possibility is not sufficient to bring the present case within the Rogers exception. The requirement of Ministerial consent before a society can bring an action to recover equitable remuneration instead of seeking the Board’s approval of a tariff is a clear indication that Parliament intended the Board to have primary jurisdiction over the collective enforcement of neighbouring rights, including the interpretation of the statutory provisions governing this complex, rate-setting scheme. No such provision limited the copyright holder’s right in Rogers to bring an infringement action that could have required a court to decide the same legal question as that decided by the Board.
So Rogers continues to be chipped away at.

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