Friday, February 22, 2008

Copyright Board and CAB - Once More with Feeling!

The Copyright Board has on February 22, 2008 now reiterated its conclusion from its decision October 14, 2005 to grant an increase of 32% to SOCAN for its commercial radio tariff and a corresponding increase to NRCC. The Board had been told by the Federal Court of Appeal that it had to provide adequate reasons for its original decision. I discussed this at some length on October 23, 2006 here.

The Board's new decision, which comes almost four years after the hearing in May 2004, comes to the same conclusion but for different reasons. A quick read indicates that it mainly adopts the CAB's economic expert's methodology "with several modifications", with the resulting arithmetic working against the CAB - and with lots of detail.

For fans of administrative law and "standard of review", the FCA's October 19, 2006 decision, which took only a week to issue and which was written by Mr. Justice John Evans, who is not a only a judge of the Federal Court of Appeal but is the co-author of the leading Canadian treatise on administrative law stated as follow:

[16] The Board is entitled to the greatest deference in the exercise of its discretion to set a rate and, accordingly, the discretionary decisions lying at the heart of its expertise are reviewable only for patent unreasonableness. However. it must explain the basis of its decisions in a manner that enables the Court on Judicial review to determine on the basis of the reasons, read in context, whether the decision was rationally supportable. When an administrative tribunal's decision is reviewable on a standard of reasonableness, its reasons are the central focus of a judicial review: Law Society at New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 see 20, at paras. 48-9, 54-55.

[17] In my view it was not sufficient in the circumstances of this case for the Board to justify its quantification of the undervaluation by merely referring to the evidence taken as a whole. It is not enough to say in effect: "We are the experts. This is the figure: trust us." The Board's reasons on this issue served neither to facilitate a meaningful judicial review, nor to provide future guidance for regulatees.
(Emphasis added)


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