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.