Simon's Megalomaniacal Legal Resources

Judicial Review - SoR - Reasonableness Exception - Concurrency

This line of cases, addressing where the law sets out concurrent jurisdictional lines on the same legal issue, is interesting as they form an additional Vavilov 'reasonableness' exception - one that Vavilov itself did not anticipate. I find that the easiest way of thinking about this 'concurrency' is to contrast it with situations where the law sets out 'exclusive' jurisdiction, as it does with respect to labour relations and the OLRB (Weber).

. Bayer Inc. v. BGP Pharma ULC (Viatris Canada)

In Bayer Inc. v. BGP Pharma ULC (Viatris Canada) (Fed CA, 2023) the Federal Court of Appeal considered the 'concurrency' exception to the JR standard of review (SOR) (which, if it applied, would indicate an SOR of correctness), here in a patent case:

[4] Firstly, with respect to the standard of review, the judge did not err in refusing to apply the Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, 471 D.L.R. (4th) 391, exception to rebut the presumption of reasonableness. As observed by the judge, our Court in Teva Canada Limited v. Pfizer Canada Inc., 2016 FCA 248, [2017] 3 F.C.R. 80 at paras 56–57 found that this Court’s role as first instance decision-maker arises only when a proceeding is initiated under section 6 of the Regulations (see also AbbVie Corporation v. Canada (Health), 2022 FC 1209). Hence, contrary to the appellants’ contention, there is no concurrent jurisdiction between the Federal Court and the Minister in terms of the administration of section 5 of the Regulations: it squarely falls within the purview of the Minister. As such, the standard of review in this case is reasonableness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 (Vavilov)).

. September 21 Inc. v Registrar, Bereavement Authority of Ontario

In September 21 Inc. v Registrar, Bereavement Authority of Ontario (Div Court, 2023) the Divisional Court considered an exception to the JR standard of review of 'reasonableness' (that would set an SOR of 'correctness') where more than one body allegedly has jurisdiction over the matter (here, the court and the Bereavement Authority of Ontario):

[13] The Respondent submits that the standard of review on the issue of the Registrar’s jurisdiction is correctness, citing Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 29. Though not referred to in its factum, the Applicant also has brought to our attention the recent Supreme Court of Canada decision in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, at paras. 26-42. This case recognizes a new category of correctness review: when a court and an administrative body both have first instance jurisdiction over a legal issue in a statute and “reasonableness would undermine legislative intent or the rule of law in a manner analogous to the five correctness categories discussed in Vavilov at paras. 23 and 70”. We are skeptical that the jurisdictional issue in this case is a true question of vires as defined in para. 59 of Dunsmuir or that it is one of the “rare and exceptional circumstances” described in Society of Composers. However, we will assume, without deciding, that we need not afford deference to the Registrar’s assertion of authority on this judicial review.

. Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association

In Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association (SCC, 2022) the Supreme Court of Canada considered the situation when both a tribunal and the court have 'shared first instance jurisdiction' review of an issue. 'Shared first instance jurisdiction' (or concurrency) is the opposite of the 'exclusive' jurisdiction that most tribunals have, as with Ontario's himan rights or labour relations law. An Ontario example of 'shared first instance jurisdiction' is the Residential Tenancies Act, where matter with a dollar value of $35k must stay within the LTB but over it they may proceed in the normal Superior Court [RTA 207(1)].

In this case the issue was - when judicially reviewing an order of the Copyright Board (which had 'shared first instance jurisdiction') with the courts - what SOR applied. Under normal Vavilov rules it would be 'reasonableness', but the SCC in this case has - due to the concurrency of both tribunal and court - held that the higher SOR of 'correctness' should apply. This constituted a new, sixth exception to the normal 'reasonableness' SOR for court reviews.

A. Issue 1: What Is the Appropriate Standard of Review?

(1) Prior Jurisprudence Needs to Be Reconsidered in Light of Vavilov

[22] Prior to Vavilov, the Board’s decisions on the scope of rights in the Copyright Act were reviewed on the standard of correctness: see, for example, Rogers, at paras. 10-20; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615 (“CBC”), at para. 35.

[23] These pre-Vavilov cases held that correctness was appropriate because the Board and courts have concurrent first instance jurisdiction over some aspects of the Copyright Act. In infringement actions, the scope of rights under the Act is routinely brought before courts for interpretation. Similarly, the Board may need to decide the scope of rights in the Act in order to set tariffs, as occurred in this case: Rogers, at paras. 12-13. Given this shared jurisdiction, the pre-Vavilov cases concluded that correctness was appropriate because it minimized the risk of conflicting statutory interpretations and gave effect to legislative intent: Rogers, at paras. 12-15; CBC, at para. 35.

[24] In Vavilov, this Court reconsidered its standard of review jurisprudence. It simplified the law by holding that courts should review administrative decisions on a standard of reasonableness except when doing so would undermine legislative intent or the rule of law: paras. 17 and 69.

[25] Vavilov overtook the prior jurisprudence: para. 143. Cases from this Court applying a correctness standard to the Board’s decisions therefore need to be reconsidered in light of Vavilov.

(2) Concurrent First Instance Jurisdiction Should Be Recognized as a Sixth Category of Correctness

[26] Vavilov recognized five categories for correctness review: legislated standards of review, statutory appeal mechanisms, constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to the jurisdictional boundaries between two or more administrative bodies (paras. 17 and 69). None of these categories justifies applying a correctness standard of review to situations of concurrent administrative and court first instance jurisdiction.

[27] Nevertheless, I would apply a correctness standard of review to the Board’s decision. Vavilov did not “definitively foreclose the possibility that another category could be recognized as requiring a derogation from the presumption of reasonableness review”: Vavilov, at para. 70. In rare and exceptional circumstances, new correctness categories can be recognized when applying reasonableness would undermine legislative intent or the rule of law in a manner analogous to the five correctness categories discussed in Vavilov at paras. 23 and 70.

[28] This is one of those rare and exceptional circumstances where it is appropriate to recognize a new category of correctness review: when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute. Applying correctness to these issues accords with legislative intent and promotes the rule of law.

(a) Legislative Intent

[29] Reasonableness is the standard of review that, in most instances, gives best effect to legislative intent. When the legislature has granted exclusive jurisdiction to an administrative decision maker, courts presume that the legislature wanted that decision maker to operate without undue judicial interference: Vavilov, at para. 24.

[30] When the legislature expressly involves the court in the administrative scheme, this presumption no longer applies. That is why legislated standards of review and statutory appeal mechanisms give rise to a correctness standard of review. Such statutory features indicate legislative intent for judicial involvement and a desire to subject those decisions to appellate standards of review: Vavilov, at para. 36.

[31] When the legislature enacts a statute that gives concurrent first instance jurisdiction to courts and administrative bodies, the legislature expressly involves the courts. Like legislated standards of review and statutory appeal mechanisms, concurrent first instance jurisdiction signals a legislative intent for judicial involvement. By conferring such jurisdiction, it should be inferred that the legislature wanted to subject those decisions to appellate standards of review.

[32] My colleague suggests that, because there is no statutory appeal mechanism or legislated standard of review, a sixth correctness category cannot be recognized on the basis of legislative intent. With respect, this argument misconceives the question at issue. If there were legislated standards of review or statutory appeal mechanisms, the Board’s decision would already be reviewed for correctness under those established correctness categories. There would be no reason to consider a sixth category of correctness. When there is no statutory appeal mechanism or legislated standard of review (or other established correctness category), the question is whether correctness is nevertheless appropriate because applying reasonableness would undermine legislative intent in a manner analogous to the established correctness categories. Since that is the case here, a sixth category of correctness is justified on the basis of legislative intent.

(b) Rule of Law

[33] The presumption of reasonableness must give way to considerations aimed at maintaining the rule of law, which requires that certain questions be answered consistently and definitively: Vavilov, at para. 53. Legal inconsistency “is antithetical to the rule of law”: Vavilov, at para. 72.

[34] Applying reasonableness to the Board’s interpretation of the rights in the Copyright Act creates two legal inconsistencies. First, it subjects the same legal issue to different standards of review depending solely on whether the issue arises before the Board or the courts. As this Court explained in Rogers, at para. 14,

[i]t would be inconsistent for the court to review a legal question on judicial review of a decision of the Board on a deferential standard and decide exactly the same legal question de novo if it arose in an infringement action in the court at first instance. It would be equally inconsistent if on appeal from a judicial review, the appeal court were to approach a legal question decided by the Board on a deferential standard, but adopt a correctness standard on an appeal from a decision of a court at first instance on the same legal question.

[35] Second, differing standards of review could lead to conflicting statutory interpretations. For example, the Board could interpret s. 2.4(1.1) as requiring that users pay a performance royalty when works are downloaded, while a court could interpret the provision such that no such royalties are payable in those circumstances.

[36] This raises different concerns than the potential for inconsistent decisions within an administrative body. In Vavilov, at para. 72, this Court declined to recognize a correctness category for legal questions on which there is persistent discord within an administrative body for three reasons: (1) ensuring that administrative bodies remain independent, as the legislature intended, requires tolerating some inconsistencies; (2) a robust reasonableness review can adequately manage the serious rule of law concerns that emerge when the law is indeterminate; and (3) the point at which internal discord becomes serious enough to warrant a correctness standard is impossible to define in the abstract. None of these rationales justifies maintaining a reasonableness standard of review when courts and administrative bodies have concurrent first instance jurisdiction.

[37] First, when there is concurrent first instance jurisdiction, the legislature has expressly involved the courts in the interpretation of a statute. While one may contemplate a degree of inconsistency within an administrative body regarding the interpretation of a statute, no such inconsistency can be tolerated when a court interprets a statute. When the legislature confers first instance concurrent jurisdiction, that necessarily carries with it the implication that, absent legislative direction to the contrary, courts will operate by their settled standards, as explained in Vavilov, at para. 37.

[38] Second, the more methodologically rigorous reasonableness review developed in Vavilov cannot adequately deal with an inconsistency in statutory interpretation between courts and administrative bodies. Vavilov offered guidance as to how to manage persistent discord within administrative bodies at paras. 129-32. But, other than telling administrative bodies to consider relevant judicial decisions, at para. 112, it offers little guidance on managing differing decisions between courts and tribunals. In those circumstances, unless the statute allows for only one reasonable interpretation, discord could persist indefinitely: see para. 124.

[39] Third, this correctness category can be defined with precision. It will apply when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute. Such situations are rare. “Concurrent jurisdiction at first instance seems to appear only under intellectual property statutes where Parliament has preserved dual jurisdiction between the tribunals and the courts”: Rogers, at para. 19. Administrative bodies will also continue to benefit from the presumption of reasonableness in other circumstances. The Board’s decision on tariff rates, for example, will continue to be reviewed on a standard of reasonableness as that is a matter that comes within the Board’s exclusive jurisdiction.

(3) Conclusion: Standard of Review

[40] Recognizing concurrent first instance jurisdiction between courts and administrative bodies as a sixth category of correctness review gives effect to legislative intent and promotes the rule of law. I will therefore review the Board’s decision under the standard of correctness.

[41] I wish to emphasize that these reasons do not purport to change when it is appropriate to recognize a new correctness category. Vavilov contemplated that new correctness categories could be recognized only in rare and exceptional circumstances. Courts should only recognize new correctness categories when doing so is “consistent with the framework and the overarching principles set out in [Vavilov]”: para. 70. This is one of those circumstances.

[42] Nor do these reasons depart from Vavilov. Contrary to my colleague’s assertion, this Court never “chose not to make first instance concurrent jurisdiction an exception”: para. 125 (emphasis in original). When this Court wanted to reject the possibility of a certain correctness category, it did so expressly: see Vavilov, at paras. 71-72. Concurrent first instance jurisdiction was not discussed in Vavilov. Accordingly, I seek to give effect to Vavilov by considering whether treating concurrent first instance jurisdiction as a new correctness category furthers the framework and principles in Vavilov. With respect, I say that it is my colleague who departs from precedent by effectively reading the possibility of further correctness categories out of Vavilov.