Thursday, August 23, 2018

Standard of Review: The Beginning of the End or the End of the Beginning?


The deadline for applications for leave to intervene the Supreme Court appeals involving Bell Canada and the “simultaneous substitution” or “simulcast” issue is August 31, 2018 by my calculation.

It very much looks like the real issue is not so much about the Superbowl and simultaneous substitution but what the SCC wants to do about the “sempiternal” issue of “standard of review” and the landmark Dunsmuir case that was supposed to be the beginning of the end of uncertainty but has instead become something more like the end of the beginning about uncertainty.

In granting leave to appeal, the Court made the very unusual statement that:
The Court is of the view that these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, and subsequent cases. To that end, the appellants and respondent are invited to devote a substantial part of their written and oral submissions on the appeal to the question of standard of review, and shall be allowed to file and serve a factum on appeal of at most 45 pages. 
The Court has also taken the unusual step of appointing amicus curiae  to assist on these case and a related case.

A crucial aspect of this discussion is the presumption of “expertise” by administrative tribunals. In a recent posting by the Copyright Board of remarks by its Chair Justice Robert Blair at an event on May 1, 2018, the learned Chair effectively admitted that the Board may lack expertise in certain respects and that the Board’s expertise may depend upon who is chosen to be a member or even the Chair:
I think it is also important to keep in mind that, while the Board’s staff, and at least the current Vice-Chair, are the repositories of a great deal of expertise in the rate-setting process, all members of the tribunal at the hearing may not have that same in-depth knowledge. The Chair must be a sitting or retired superior court judge (where very little intellectual property work, much less copyright work, is done), and to date has not come from the Federal Court system where they actually know something about those subjects! In addition, none of the present members is an economist. In this sense, the old adage that applies to every good counsel, in any setting, is relevant: know your adjudicator and your forum.
Copyright lawyers will know that the Supreme Court has carved out a special niche for the Copyright Board, essentially holding it to the stricter “correctness” standard because the same questions of law concurring the Copyright Act can arise both before the Board and in the courts. See
Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, [2012] 2 SCR 283, 2012 SCC 35 (CanLII), <>
One can only hope that this niche is preserved. Copyright law is sometimes very arcane and Copyright Board rulings can be very important in many ways. It is perfectly reasonable, if I can put it that way, that the Copyright Board be held to the standard of correctness on questions of law.

Interveners, start your engines.


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