ESA II: The Standard of Review and Rogers

In Entertainment Software Association, Stratas JA for the Court set out a number of important comments about statutory interpretation and international law. I dealt with those comments in a previous post. I write again about this case to highlight Stratas JA’s comments on the standard of review. Particularly, Stratas JA was faced with the propriety of the Rogers decision, which held that when an administrative regime contemplates concurrent jurisdiction between a decision-maker and a court, the standard is correctness. While Stratas JA rightly held that the issue should be left for another day, I think there are good reasons to affirm Rogers in light of Vavilov.

Stratas JA started out by noting that “[f]or some reviewing courts, Vavilov wrought a significant change in how reasonableness review should be conducted. But in our Court, at least for the conducting of reasonableness review in a case like this, Vavilov hardly changed anything at all” [23]. This was because one of Vavilov’s innovations (at least at the SCC) was its list of contextual “constraints” that act as indicia of a reasonable decision. For example, and perhaps most importantly, statutory language could be broad or narrow, which would either “liberate or constrain” the decision-maker (Entertainment Software Assoc, at para 24; Vavilov at paras 89, 110). Similarly, other factors (precedent, affect on the individual, etc) could set the context in which reasonableness is defined. In the Federal Court of Appeal, a similarly contextual approach was already known: see particularly the decisions in Farwaha, at para 91; Delios, at paras 26-27). In a way, Vavilov was a full vindication of the Federal Court of Appeal’s approach. No longer, Stratas JA said, would lower courts have to “tip-toe around dicta in Supreme Court decisions like [Edmonton East] and [Wilson].” Despite Abella and Karakatsanis JJ’s (surprising and unexpected, given cases like Saskatchewan Federation of Labour) call to follow stare decisis in relation to these cases, the majority rightly did away with them, leaving them to be read by generations of law students as exotic artifacts of times gone by. And the Federal Court of Appeal’s long-standing approach to these issues, rooted in sound doctrine, was vindicated.

More difficult was the propriety of Rogers. As noted in my previous post, the section of the Copyright Act under interpretation in the case “falls to be interpreted by both the Board and the courts” [14]. Under Rogers, the standard of correctness applied to such cases of concurrent jurisdiction. The question: does Vavilov throw doubt on Rogers?

As Stratas JA notes, Vavilov is exhaustive in that it addresses “all of the situations in which a reviewing court should derogate from the presumption of reasonableness review” (Vavilov, at para 69; see also Vavilov, at para 143 re “holistic revision”). While the Court left open the possibility for future categories of correctness review to be recognized in future cases (Vavilov, at para 70), Rogers clearly did not fit into the Vavilov correctness categories. This is odd, considering Rogers is of relatively recent vintage and the Court was clearly aware of it as a previously-recognized correctness category. My speculation is that, since Vavilov is clearly a compromise judgment.

That said, in my view, a case for Rogers could be made in light of Vavilov. Though Stratas JA left the merits of this argument for another day, he does point out that an organizing premise of Vavilov is legislative intent; specifically, a respect for the “institutional design choices” made by Parliament in establishing an administrative body (Vavilov, at paras 24, 26, 36, and 46). It is this concept that justifies a presumption of reasonableness review. Similarly, it is this concern that justifies one of the categories rebutting that presumption: statutory rights of appeal on questions of law. A respect for these “institutional design choices” (for example, the act of setting up an administrative actor in the first place, and the act of subjecting that administrative actor to a right of appeal on questions of law) might similarly militate in favour of recognizing concurrent jurisdiction as a category of correctness review (see Entertainment Software Assoc, at para 18).

While I find this argument quite convincing, there are three counter-arguments that should be tackled. First, one might argue that since Vavilov did not recognize Rogers, this should be taken as a sign that Rogers is no longer good law. While the Supreme Court in administrative law does have a history of simply ignoring precedents, no one should presume that this is what the Supreme Court decided implicitly in Vavilov. Remember that Vavilov is comprehensive; the Supreme Court took great pains to clarify its pre-Vavilov precedents. It is more likely that Rogers was not included because of the internal politics of keeping the majority together; not an implicit desire to overrule Rogers.

Second, one might argue that the conceptual basis of Rogers itself no longer exists. Specifically, Rogers says that “By setting up a specialized tribunal to determine certain issues the legislature is presumed to have recognized superior expertise in that body in respect of issues arising under its home statute…”(Rogers, at para 11). Similarly, in cases of concurrent jurisdiction, “…it must be inferred that the legislative intent was not to recognize superior expertise of the Board…” (Rogers, at para 15). On these extracts, expertise seems to be doing some conceptual work. Yet Vavilov dispatches with expertise as a reflexive reason for deference. What result?

While expertise is no longer the lynchpin for deference, Rogers still speaks of “legislative intent.” In this case, the relevant legislative intent has simply shifted. We do not go further and ask what legislative intent Parliament had with respect to expertise; we simply ask what Parliament did when it set up a decision-maker, from an institutional perspective. Under this new theoretical basis, and as noted above, there is at least a case that Rogers can fit in quite nicely.

Finally, one might take a page from Abella and Karakatsanis JJ’s disguised dissent and simply argue that concurrent jurisdiction should not necessarily lead to correctness review (the disguised dissent made this point re rights of appeal at Vavilov, para 249). One could argue that nothing should be gleaned from concurrent jurisdiction as a matter of legislative intent; and the presumption of deference should apply.

But the importance that the Vavilov Court attaches to delegation as a tool belies this argument. For the Court, it is the very act of delegation that invites reasonableness review (Vavilov, at para 30). But when Parliament delegates to a decision-maker but carves out jurisdiction for a court to decide the same or similar matters at first instance, the delegation to the administrative agency cannot be construed as “full.” Accordingly, the presumption of reasonableness should not be characterized as “full” either. The exception for courts to exercise original jurisdiction qualifies the delegation, undermining the conceptual basis for reasonableness review.

This is just a sampling of some of the considerations to take into account regarding Rogers. It will be interesting to see how courts deal with that case in light of Vavilov.


Author: Mark Mancini

I am a graduate of the University of New Brunswick Faculty of Law (JD) and the University of Chicago Law School (LLM). I am the National Director of the Runnymede Society, a national law student organization dedicated to debate on issues relating to the Rule of Law, constitutionalism, and individual liberty. I clerked at the Federal Court for Justice Ann Marie McDonald. I have interests in administrative law broadly, with specific interests in substantive review of administrative interpretations of law. I am also interested in law and economics. Any views expressed on Double Aspect are mine, and do not represent the views of the Runnymede Society.

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