Jul 5, 2018

Facts: Access Copyright is a “collective society” under the Copyright Act[1] and in accordance with licence agreements collects royalty payments on behalf of authors and publishers. As such, Access Copyright operates a “licensing scheme” under the Act and is subject to provisions in the Act that allow Access Copyright to propose royalty tariffs to the Copyright Board for approval. Objections to the proposed tariffs may be filed, and the Board adjudicates the fairness and appropriates of the proposed tariffs. At the end of the process, the Board “shall certify the tariffs as approved, with such alterations to the royalties and to the terms and conditions related thereto as the Board considers necessary, having regard to any objections to the tariffs.”[2]

Access Copyright proposed a tariff for royalty rates for the years 2010-2014. The proposed tariff included the making and distribution of digital copies of published works in the Access Copyright repertoire, subject to certain terms. One of those terms required government licensees to cease using digital copies once they were no longer covered by the tariff, and to delete those copies (the “Deletion Provision”). Following a lengthy hearing, the Board certified the tariff, but it excluded digital copying from the tariff and removed the Deletion Provision.

Access Copyright sought judicial review in the Federal Court of Appeal.

Decision: Application dismissed.

Justice Stratas wrote the principal set of reasons for the Federal Court of Appeal’s unanimous decision. Justices Rennie and Near wrote brief concurring reasons, agreeing with Stratas JA in the result and with much of his analysis, but disagreeing with his obiter comments on two doctrinal issues: the existence of jurisdictional questions, and the role of reviewing courts on procedural fairness questions.

All three judges agreed that the standard of review is reasonableness. Access Copyright argued that the correctness standard applied because the application involved a jurisdictional issue: whether the Board had exceeded its jurisdiction in making its decision. However, in deciding what it could and could not do, the Board had to interpret the Act, its home statute. The Supreme Court’s case law is clear that reasonableness is the presumed standard of review of an administrative decision maker’s interpretation of legislation with which it is familiar or that it frequently uses. Justices Rennie and Near agreed with Stratas JA on those points.

Justice Stratas then commented at length on Access Copyright’s submission that where “jurisdiction” is involved, the standard of review is correctness. Justice Stratas noted a tension between the presumption of reasonableness review of a decision-makers interpretation of its home statute, and correctness review for a certain category of such interpretation issues – the interpretation of whether the tribunal has jurisdiction to make a certain decision.

Justice Stratus observed that arguments that “jurisdiction” issues attract correctness review generally follow two streams. In the first stream, it is argued that the so-called “jurisdiction” issue is a fundamental issue relation to the limits of the Board’s power. According to Stratas JA, the Federal Court of Appeal has rejected that sort of submission “over and over again” based on Supreme Court jurisprudence. If a “jurisdictional question” is a question of whether the decision-maker has done something it did not have power to do, such a question calls for an interpretation of the legislation that gives the decision-maker power. Conceived in this way, a “jurisdictional question” is really a question of statutory interpretation, for which reasonableness is the presumptive standard of review.

This argument harkens back to the “preliminary questions doctrine”, which prevailed in judicial review through the 1970s and allowed the court to intervene in an administrative decision by simply labelling something a “preliminary” question and calling it “jurisdictional”. That approach was discarded by the Supreme Court in CUPE v New Brunswick Liquor Corp[3] due to its evident flaws. In Dunsmuir, the Supreme Court again cautioned against a highly formalistic, artificial “jurisdiction” test that could be easily manipulated.

In post-Dunsmuir cases, the presumption of reasonableness for questions of statutory interpretation has a strong foothold. However, due to some uncertainty in the Supreme Court’s standard of review jurisprudence recently, parties have been encouraged to argue for correctness review of “jurisdictional” questions. Nonetheless, in the Supreme Court’s most recent decision on the issue, Guérin, a majority of that court continued to apply the presumption of reasonableness.

The second stream of submissions identified by Stratas JA seeks to base correctness review on the category of “true questions of jurisdiction” recognized in Dunsmuir. Justice Stratas stated that the Supreme Court has never defined what a “true question of jurisdiction” is and in fact has warned that this category “will be narrow”. In three cases since Dunsmuir, the Supreme Court has questioned whether the category even exists.[4] Justice Stratas stated he was not going so far as to suggest that this avenue for correctness review is permanently foreclosed, as it is a feature of Dunsmuir and the Supreme Court has not removed it from the law. However, the Supreme Court has not yet had resort to this category.

Therefore, even if the Board’s decision were characterized as an issue of jurisdiction, the standard of review is reasonableness, not correctness.

Justice Stratas went on to assess whether the Board acted reasonably in deciding not to include the Deletion Provision in its tariff, and concluded that it did.

Next, Stratas JA considered Access Copyright’s arguments that the Board had breached its duty of procedural fairness. Justice Stratas began his analysis with the observation that “[t]he standard of review for procedural decisions made by administrators or decisions made by administrators that have procedural impacts is currently unsettled in this Court”. However, it was not necessary to determine the standard of review or define precisely the level of procedural fairness the Board owed the parties since none of Access Copyright’s procedural fairness concerns had any merit.

Justices Rennie and Near, in their concurring reasons, did not agree with the suggestion that the existence of jurisdictional questions has been foreclosed or that in Guérin the Supreme Court rejected the correctness standard of review for jurisdictional questions. To the contrary, the majority applied the reasonableness standard only after concluding that the issue was not a true jurisdictional question. The Supreme Court abrogated the “preliminary question” doctrine in CUPE, but it did not say that jurisdictional questions do not exist. Rather, courts should refrain from quickly labelling issues as “jurisdictional”. The presumption of reasonableness can be rebutted by a jurisdictional question; indeed some members of the Court have identified jurisdictional questions in recent cases. The majority reasons noted that jurisdictional questions are closely connected to the rule of law and courts’ constitutional responsibility to ensure administrative decision makers do not act outside their legislative authority.

Finally, Rennie and Near JJA disagreed with Stratas JA that the law with respect to the role of reviewing courts in assessing procedural fairness is unsettled. They cited three cases demonstrating that the law is settled.[5]

Commentary: The Federal Court of Appeal had the decision in this case under reserve for 21 months. According to Stratas JA’s reasons, the unusually long reserve was due to the Court awaiting the Supreme Court’s decision in Guérin. However, as seen in Guérin and the most recent decision in Caron, the Supreme Court itself remains deeply divided on so-called “jurisdictional questions”. So it is not surprising that judges of the Federal Court of Appeal are also struggling on the proper approach to such questions.

As we understand it, the current state of the law is that where “true questions of jurisdiction” arise, they are properly subject to correctness review. Justice Stratas rightly points out a tension between presumptive reasonableness review of a tribunal’s interpretation of its home statute, and correctness review of jurisdictional questions – which involve a tribunal’s interpretation of its home statute. However, this tension can be resolved by understanding that a jurisdictional question rebuts the presumption of reasonableness – a point made by Rennie JA in his concurring reasons.

Justice Stratas suggests that the conventional idea of jurisdictional questions – whether a decision maker does or does not have the power to do something – was put to bed in the Supreme Court’s 1979 decision in CUPE. This a common reading of CUPE, but it may also be a misreading of the decision. Justice Dickson (as he then was) did not say in CUPE that there is a conceptual problem with jurisdictional questions; rather, courts should not “quickly label” something as a question of jurisdiction in order to intervene where it is inappropriate to do so. CUPE is a caution to courts not to manipulate the test to arrive at an outcome that allows for greater interference with administrative decision. But properly applied, the concept of jurisdiction is fundamental to judicial review and the rule of law, and CUPE is not inconsistent with the idea that it is appropriate to review “true questions of jurisdiction” (as opposed to questions that are not “true” jurisdiction questions, but rather other kinds of questions that a court simply calls “jurisdictional” in order to intervene) on the correctness standard.

May be what the majority of the Supreme Court intended when it identified “true questions of jurisdiction” in Dunsmuir, and given the clear connection between questions of jurisdiction, rule of law, and the supervising role of reviewing courts, it is not suprising that this category of correctness review has never been foreclosed. Indeed, in recent cases it has seen new life with certain members of the Supreme Court.

When Stratas JA separates “true questions of jurisdiction” in Dunsmuir from jurisdiction questions as conventionally understood, he may be drawing a distinction that the mjaority never intended in Dunsmuir. The category of “true questions of jurisdiction” in Dunsmuir refers to those issues properly described as jurisdiction. And contrary to Stratas JA’s assertion, the Supreme Court majority did attempt to define that category in Dunsmuir. They described it as follows: whether the tribunal had the authority to make the inquiry. Such questions arise “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter.”[6] While some judges who favour broad reasonableness review have tried to limit this category, and have declined to find a “true question of vires” where others have identified such a question, the concept is conceptually sound and has not (yet) been definitively rejected.[7]

[1] RSC 1985, c C-42.

[2] Act, s. 70.15.

[4] See Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 64; McLean v British Columbia (Securities Commission), 2013 SCC 67 at paras 25-33; Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 at para 26.

[5] Mission Institution v Khela, 2014 SCC 24 at paras 79-80; Wsánec School Board v British Columbia, 2017 FCA 210 at para 23; Maritime Broadcasting System Ltd v Canadian Media Guild, 2014 FCA 59 at para 79.

[6] Para 59.

[7] This point was made by Beetz J three decades ago in Bibeault v. U.E.S. Local 298, [1988] 2 S.C.R. 1048, where he commented that the “theoretical basis of [jurisdictional questions] is… unimpeachable, which may explain why it has never been squarely repudiated.”

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