In Entertainment Software Assoc v Society of Composers, 2020 FCA 100, Stratas JA (for the Court) made a number of interesting comments about statutory interpretation in the administrative state and the role of international law in the interpretive activity. In this post, I review these comments, and agree with them wholeheartedly. This case is an important add-on to a growing list of cases in the Federal Court of Appeal and the Supreme Court (Williams, Cheema, Hillier, Placer Dome, Telus v Wellman, Rafilovich) that advocate a certain form of text-based purposivism, which rejects abstract purposes and extraneous principles of international law in favour of specific text. As I will note, these cases all indicate a trend: a promising move towards statutory interpretation approaches that are governed by text, not the policy preferences of administrators or the wishes of unelected judges. While the courts most certainly would not put it in these terms, this is a new, reborn form of textualism in Canadian law that incorporates purpose but makes it a servant to text. In this sense, it is most certainly not the plain-meaning rule, but also not pure purposivism.
I note that there are important aspects of this decision that I will address in a later post, including on the standard of review analysis.
SOCAN administers the right to “communicate” musical works on behalf of copyright owners . It filed with the Copyright Board proposed tariffs for the communication to the public of works through an online music service. After SOCAN filed its proposed tariffs, the Copyright Act was amended to include the so-called “making available provision.” This provision defines “communication of a work…to the public” as including “making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and time individually chosen by that member of the public”  (s.2.4(1.1) of the Copyright Act). The question: does the making available of a work on an online server for later downloading constitute “an event for which a tariff was payable”? 
A Supreme Court case was on point. In 2012 SCC 34, the Court held that the “transmission over the Internet of a musical work that results in a download of that work is not a communication by telecommunication” , meaning that SOCAN could not collect royalties . The argument the Board was faced was that the introduction of s.2.4(1.1) made the Supreme Court’s decision “irrelevant” . The Board agreed , concluding that s.2.4(1.1) of the Copyright Act is a deeming provision that makes the making available of a work on a server an act that is a communication to the public, and is therefore an act that triggers a tariff entitlement. The Board’s conclusion meant that it split the process into two separate tariff triggering events: (1) “the making available” and (2) a subsequent download or transmission on the Internet. In support of its reasoning, the Board concluded that the contrary position would “not comply with Canada’s international obligations” as set out in Article 8 of the WIPO Copyright Treaty (the Treaty) .
The Board’s interpretation attempted to transgress the limits on its discretion by references to international law and abstract, imputed legislative purposes. The new Canadian textualism, as espoused by Stratas JA, rejects this approach.
Let’s start at the highest level of abstraction. The rules of statutory interpretation particular to administrative decision-makers must be read in harmony with the Supreme Court’s (and Federal Court of Appeal’s) statutory interpretation precedents, particularly recent precedents. Those precedents prize two things as part of the new Canadian textualism. First, as Stratas JA held in this case, results-oriented reasoning is prohibited: see Williams, at para 48; Cheema, at para 74; Hillier, at para 33; and Vavilov at paras 120-121 re “reverse-engineering” a desired outcome. Interpretation must be conducted according to text, context, and purpose, and extraneous policy or substantive considerations should not enter the analysis. Second, and importantly, courts cannot let purpose suffocate the text, no matter how nice the purposes sound. That is, purposes cannot be stated at such a high level of abstraction that the purpose expands the meaning of the text beyond its natural meaning (see Wilson (FCA), at para 86, rev’d not on this point: “…we cannot drive Parliament’s language….higher than what genuine interpretation—an examination of text, context, and purpose—can bear”; see also Cheema, at paras 74-75).
Examples of this abound. In Hillier, at para 36, the Court rejected abstract purposes of “administrative efficiency, adjudicative economy, and conservation of scarce administrative resources.” Instead, the provision in question was limited to a purpose more reflected in the legislative text (Hillier, at para 35). Lest one think this is just a predilection of the Federal Court of Appeal, the Supreme Court endorsed this approach in Telus v Wellman, where the Court said the following, at para 83:
Hence, while there can be no doubt as to the important of promoting access to justice…this objective cannot, absent express direction from the legislature, be permitted to overwhelm the other important objectives pursued by the Arbitration Act.
In that case, the Court chose purposes actually reflected in the text of the Arbitration Act (another Supreme Court case, Rafilovich, holds the same thing, as I wrote about here). And these cases are consistent with older Supreme Court cases, which constrain purpose: see Placer Dome, at para 23: purpose cannot be used to “supplant” clear language.
Put together, the text, context, and purpose of legislative provisions must be dealt with authentically, but purpose should be constrained to “fit” the scope of the legislative text. This is a simple application of the rule that “Most often the purpose of legislation is established simply by reading the words of the legislation” (see Sullivan, Statutory Interpretation, at 193). Under these precedents, text is inferred from purpose; purpose is not a free-standing licence to override text. This is an important corrective to a potential use of the purposive approach that does away with legislative text, in support of some realist approach to statutory interpretation.
While Vavilov does not reference these precedents (including Telus or Rafilovich), it does invoke the traditional requirement that administrative decision-makers must deal with the text, context, and purpose of legislation (Vavilov, at para 120, 121) with only limited opportunity for error (Vavilov, at para 122). In dealing with the text, context, and purpose, the Supreme Court’s precedents mean that text will often be the dominant consideration. Vavilov endorses this idea, at para 120: where the tools of interpretation lead to a clear answer, that interpreted text will govern. Under this approach, administrative decision-makers are governed by statute, limited by the boundaries on their authority. They cannot transgress these boundaries, and cannot use tools of interpretation that do so.
In the Entertainment Assoc case, the Board seemed to attempt to transgress the boundaries of its authority. The Board’s chosen materials for the interpretive exercise were stated, according to the Court, at a high level of generality (see paras 53-54). For example, the Board focused on the preamble to the Copyright Modernization Act to divine a rather abstract interpretation that supported its view on international law (paras 53-54). It also invoked government statements, but the Court rightly noted that these statements construed s.2.4(1.1) as a “narrow, limited-purpose provision” , not as an all-encompassing provision that permitted the collection of tariffs in both instances. The use of these materials was used by the Board to herald a different, broader interpretation than what the text and context of the provision indicated. This is the problem that Telus v Wellman and Rafilovich guard against.
What is the upshot of all this? Entertainment Assoc is justified from first principles and with regards to precedent. On first principles, it restrains the role of purpose and extraneous considerations, which might not be derived from text. On precedent, it is supported by Telus v Wellman and Rafilovich, and is clearly consistent with other Federal Court of Appeal precedents. Slowly, but surely, we are reaching a sensible approach to statutory interpretation.
The Board spent the majority of its time focusing its interpretation on the Treaty. Indeed, according to the Court, the Board spent scant time on the actual interpretation of the governing statute, instead taking a particular article of the Treaty, interpreting it, and then making “subsection s.2.4(1.1) conform with that interpretation” . Specifically, the Board used article 8 of the Treaty to “provide protection for the act of making a work available by telecommunication even where there was no transmission to the public” .
This approach, as the Court notes [75-88], is profoundly violative of the hierarchy of laws (see, for more on the hierarchy, Tennant). Section 52 of the Constitution Act, 1982 is clear: the Constitution is the supreme law of Canada. As the Court eloquently notes, under that Constitution, a division of powers exists which grants exclusive law-making rights to the provinces and the federal government. Of course, so long as powers are not abdicated, they can be delegated to domestic administrative decision-makers. Under this framework, the Constitution binds legislative actors, but within constitutional limits, the legislature is sovereign. This is basic, but as we shall see, easily forgotten stuff.
International law made by “unelected functionaries abroad who draft and settle upon international instruments” should not subvert the hierarchy of laws . The only way that international law treaties can actually become a part of our law is through the process of domestic adoption of international law in a proper legislative instrument . Parliament can adopt international law in whole in or in part; can change the content of international law as it is adopted in domestic legislation; or otherwise choose not to adopt international law in domestic legislation. In this way, Parliament remains sovereign because it controls the international law it adopts. This is the status quo ante, and should not be dispatched with simply because one party, academic, or lawyer likes the substantive content of particular international law instruments.
International law instruments, as the Court notes, can affect the interpretive activity in distinct but narrow ways. Of course, “[s]ometimes the text of a legislative provision explicitly adopts the international instrument wholesale” . Here, international law must form the basis of the interpretation. In other situations, it might be clear that legislation, under the ordinary techniques of interpretation is “clear enough,” such that international law cannot form a part of the interpretive activity. The importance of this conclusion is that if legislative text is clear, it should oust an extraneous international law instrument, due to the hierarchy of laws described above. If legislation is unclear, and international law “may have influenced its purpose or context” , international law could enter the interpretive task. The clearness of the legislative text, on first principles, should be the anchor that governs whether international law properly enters the interpretive task because, again, the legislature must proactively legislate into existence international law instruments under orthodox principles (see Sullivan, Statutory Interpretation, at 314, which contemplates an initial assessment of ambiguity: “If a legislative provision is considered unambiguous, it must be applied as written even though it may be inconsistent with international law.”
The Supreme Court’s “presumption of conformity” with international law could be marshalled to support the subversion of the hierarchy of laws, and to give international law a foothold in legislative text, even where the text is clear (see Gib van Ert’s piece here). So goes the argument, legislative sovereignty can be maintained by requiring that legislatures pro-actively and clearly oust international law; in this way, no ambiguity is required, and international law enters the interpretive activity in an all-encompassing way. This is the reverse from what the Court in Entertainment Assoc held, where international law can enter the interpretive activity if it has been clearly incorporated, or if the domestic law is otherwise ambiguous and international law is relevant. Under the argument advanced by van Ert and others, the international law presumption, then, is the tail wagging the domestic legislation dog.
From first principles, this understanding of the presumption of conformity is inconsistent with fundamental, orthodox legal principles. International law should be assimilated to domestic law, not the other way around. We usually don’t speak of legislation as being a “negative-option” in which Parliament must proactively and explicitly legislate away court-created presumptions linked to laws made elsewhere. Of course, it is true that Parliament often legislates against the backdrop of the common law, as developed by courts and led by the Supreme Court in appropriate cases. But in these cases, Parliament is in the driver’s seat, and there is no doubt that Parliament can oust the common law, probably by necessarily implication, a lesser standard than what the presumption of conformity requires: see Hillier, at para 37-38, and also generally how the Federal Court of Appeal prizes legislative action over judge-made rules. The common law rules made by judges are different than a presumption linked to the content of law made by another actor in another state, that purports to bind legislative actors in Canada who hold exclusive law-making power. Expecting this positive law to be supreme over domestic law, so that Parliament must do away with it, turns the international law instrument into the driving force of interpretation. This is quite different than the common law, which is domestic law, and which can be ousted by necessary implication.
Presumptions have a specific and technical meaning in law. Contrary to the Supreme Court’s recent treatment of presumptions (for example, its presumption of reasonableness pre-Vavilov), presumptions are not irrebuttable tools that can be used to subvert duly-enacted legislation out of service to some court-created concept. As the Court notes, the Supreme Court’s presumption “does not permit those interpreting domestic legislation to leap to the conclusion, without analysis, that its authentic meaning is the same as some international law” ; see also Hillier, at para 38 “…judge-made rules do not empower judicial and administrative decision-makers to ignore or bend the authentic meaning of legislation discovered through the accepted approach to interpretation.” It goes without saying, then, those who favour international law cannot use it as a way to subvert the authentic meaning of text, even if it is text that these proponents of international law would rather not have. Trite as it is, the remedy for this problem is to vote, not to consult the grand poohbahs of international law.
What Does All of This Mean?
There is a unified theme to all of Entertainment Assoc that indicates new directions in law in this country. As noted above, there is a growing list of cases in the Federal Courts and the Supreme Court that, on matters of statutory interpretation, favours clear legislative text over abstract purposes; and in this case, extraneous international law. We all know that text, context, and purpose are the ordinary tools of interpretation; and that this approach is seen by many (including in older cases of the Supreme Court: see West Fraser) to eschew an approach focused on text. What we are seeing in these cases is an attempt to recalibrate the worst excesses of a purposive or contextual approach: the perhaps irresistible temptation for administrators to use purpose or extraneous tools to oust legislative text in order to expand the boundaries of jurisdiction. Down the years, this sort of approach could slur the meaning of the words adopted by the legislature.
Fundamentally, what drives this tendency is a pernicious form of legal realism that has little confidence in the meaning of words. Of course, sometimes the worst ideas have a kernel of truth in them: sometimes it takes work to extract meaning from legislative language. It is not a self-executing task, to be sure. But the answer is not to rely on extraneous policy preferences or results-oriented reasoning, which a liberal use of broad purposes can invite.
It is no answer to this trend to simply state that the new approach in the Federal Court of Appeal and the Supreme Court is the ghost of “plain-meaning” “Diceyanism” or “formalism.” As I have written before:
In statutory interpretation, a belief that text in its context will generally contain answers is dismissed as a belief in “the plain meaning rule,” mere “textualism”–notwithstanding the important distinction between these two methods. In constitutional law, a focus on constitutional text is “originalism.” None of these are arguments, but they have since infiltrated the orthodoxy of the academy.
Indeed, if I read these cases correctly, formalism is a good thing. It means that we are sticking to the form in which laws must be promulgated and interpreted. If courts believe in the legislative work product, they will spend more time authentically applying the proper tools of interpretation to discern the meaning of the relevant text. Under this approach, legislative text is the driver of interpretation, and most of the time, an authentic application of the tools of interpretation can lead to the meaning of the words enacted by the legislature.
It is important to note that this new Canadian textualism is still Canadian in the sense that purpose forms a part of the interpretive exercise. None of the cases cited throughout this post say otherwise. However, purpose must be reflected in text, not created out of whole-cloth. That is the new Canadian textualism.
While it is too soon to state what the result of this new movement will be, it is notable that the cases are piling up in favour of a certain approach. This is not a coincidence. It indicates that the Supreme Court, and the Federal Court of Appeal, have moved beyond the mere invocation of “text, context, and purpose” in favour of the text actually adopted by the legislature. These cases clarify that the purposive approach is not a licence for policy reasoning above and beyond what the text says. As Justice Stratas notes in Hillier, at para 33: “Those we elect and, within legislative limits, their delegatees…alone may take their free standing policy preferences and make them bind by passing legislation.”
Under this approach, doubt is thrown on abstract policy preferences, purposes with no reference in legislation, international law instruments not clearly incorporated in legislation, and other ways of subverting legislative text. Good riddance.
See the following posts on the new Canadian textualism: