Friday, November 21, 2008

Adequacy of Reasons in CRTC Throttling Decision?

A question that may arise about the CRTC decision is whether - irrespective of the conclusions - it meets the test of “adequacy” of the reasons. Despite its 80 paragraphs, the decision is arguably rather short on reasoning with respect to some of its main and most controversial conclusions.

As the Federal Court of Appeal ("FCA") said about the Copyright Board a couple of years ago:
[11] “Adequacy” is to be assessed in light of the functions performed by reasons: enhancing the quality of decisions, assuring the parties that their submissions have been considered, enabling the decision to be subject to a meaningful judicial review, and providing future guidance to regulates: see VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (C.A) at paras. 17-22. Equally important, the adequacy of the reasons must be assessed in context, including the agency’s record, the issues to which the reasons relate, and the scope of the agency’s expertise.

[15] The Board’s reasons are very thin. Nor could counsel for SOCAN or NRCC refer us to anything in the evidence that would explain how the Board arrived at the 10-15% range. Indeed, as the Board’s reasons indicate, the parties had not adduced evidence directly bearing on the quantification of the amount of the undervaluation. In effect, counsel argued that the Board was entitled to use its expertise to assess the evidence as whole and that it was not required to explain how it translated the evidence of undervaluation into a percentage.

[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 of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, at paras. 48-9, 54-5.

[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.
In fact, following this 2006 decision and the 2008 decision of the FCA that quashed the Board's decision to hold a hearing on an iPod "tax" (actually, levy), the Honourable Justice William J. Vancise, Chairman of the Copyright Board of Canada, has now written at length in a paper given at the 2008 Fordham conference on the issue of adequacy of reasons in a paper entitled REASONS – BECAUSE I SAID SO – NOT GOOD ENOUGH - BUT WHAT IS?


1 comment:

  1. To avoid nipping at your own heels here -- which parts of CAIP complaint re: Bell's supply of the GAS tariff did you feel were inadequately canvassed in the CRTC's decision?