A New Correctness Category: The SCC Departs from Vavilov in SOCAN
The first installment of this post addressed the statutory interpretation question in Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association, 2022 SCC 30 [SOCAN]. The entire court was in agreement on the issue, and this was unsurprising given the Copyright Board of Canada’s (the “Board”) blatant departure from the well-settled approach to statutory interpretation.
The administrative law question, however, gave rise to a heated disagreement at the Supreme Court of Canada (“SCC”). This disagreement hinged upon the correct way to adhere to Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], a critical administrative law case from three years prior.
The Standard of Review Question
The Promise of Vavilov
The promise of Vavilov was bold—to set out a comprehensive approach to reviewing administrative decisions (Vavilov, para 17). In Vavilov, the SCC held that decisions shall be presumptively reviewed for reasonableness, save for five exceptions where the correctness standard will be applied in order to accord with legislative intent and/or the rule of law (Vavilov, para 5). These exceptions are (Vavilov, paras 34, 36, 55, 58, 63):
- Cases where the correctness standard is required by law
- Cases where statutory appeal mechanisms are in place
- Constitutional questions
- General legal questions of central importance to the entire legal system
- Questions regarding the jurisdictional boundaries between administrative bodies
Reasonableness is the lower standard wherein a court merely looks to see if the administrative decision was “transparent, intelligible and justified” (Vavilov, para 15). In other words, did the decision fall within the reasonable array of outcomes available to the administrative body (Vavilov, para 83)? Correctness is more stringent and allows for greater judicial involvement (Vavilov, 205). It allows the court to ask whether or not it would have made the same decision as the administrative body, if in its place (Vavilov, paras 15, 205).
In Vavilov, the court also noted that while they “would not definitively foreclose the possibility that another category could be recognized as requiring a derogation from the presumption of reasonableness review in a future case […] the recognition of any new basis for correctness review would be exceptional [emphasis added]” (Vavilov, para 70).
3 Years Later, 1 New Category
Only three years post-Vavilov, the majority in SOCAN found that this was one of those exceptional cases (SOCAN, para 43). Where pre-Vavilov, decisions by the Board would have enjoyed correctness review, post-Vavilov these decisions did not fit into any of the five enumerated exceptions to the reasonableness standard (SOCAN, paras 23, 26). The majority chose to carve out a sixth category for correctness review: cases where administrative bodies and courts have concurrent first instance jurisdiction over a legal issue in a piece of legislation (SOCAN, paras 28).
With respect to legislative intent, the majority held that since Parliament provided concurrent first instance jurisdiction of the Copyright Act, RSC 1985, c C-42 [the Act] to the Board and the courts, it intended to involve the judiciary and therefore subject Board decisions to correctness review (SOCAN, paras 30-32). Reasonableness was therefore rebutted. With respect to the rule of law, the majority held that correctness review would be necessary to prevent inconsistencies (SOCAN, para 33). Specifically, Justice Rowe noted that courts and the Board could reach different and conflicting conclusions on the interpretation of the Act (SOCAN, para 35). Additionally, courts would be placed in a strange situation wherein they would decide some issues de novo or anew, but also decide those same issues on a much lower reasonableness standard if the case was first handled by the Board (SOCAN, para 34).
Justice Karakatsanis, although concurring on the statutory interpretation issue, went on to write a scathing dissent of the majority’s adoption of a new correctness category. She wrote, “by creating a new correctness category only three years after a majority of the Court set out a comprehensive framework, my colleague’s conclusion undermines Vavilov’s promise of certainty and predictability. His approach shows no fidelity to the majority’s reasons in Vavilov [emphasis added] […]” (SOCAN, para 117).
With respect to the majority’s take on the rule of law, Justice Karakatsanis, joined by Justice Martin, held that the rule of law was more threatened by a lack of adherence to Vavilov than unavoidable inconsistencies in statutory interpretation, as highlighted by the majority (SOCAN, paras 129-130). With respect to the legislative intent issue, the concurring opinion noted that as per Vavilov, Parliament may indicate their intended standard of review through either explicit prescription or a statutory appeal mechanism (SOCAN, para 131). Since the legislature did neither of these two things via the Act, and since concurrent first instance jurisdiction is not one of the enumerated indicators, Justice Karakatsanis found that this was insufficient to justify a conclusion that Parliament “intended” the judiciary’s involvement by way of correctness review (SOCAN, para 131).
The concurring opinion also relied heavily on the fact that in Vavilov, the court granted intervention to a great deal of parties and purported to extensively consider the administrative law landscape prior to the creation of its five categories (SOCAN, paras 121-122). The SCC in Vavilov stated (para 69):
This framework is the product of careful consideration undertaken following extensive submissions and based on a thorough review of the relevant jurisprudence. We are of the view, at this time, that these reasons address all of the situations in which a reviewing court should derogate from the presumption of reasonableness review [emphasis added].
As noted by Justice Karakatsanis, this “thorough review” included a prior case, Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 [Rogers], which applied correctness review to a decision of the Board (SOCAN, para 117). The court in Vavilov had Rogers before it, cited Rogers in its decision at para 48, and yet excluded concurrent first jurisdiction as a sixth category for correctness review (SOCAN, para 117). In Justice Karakatsanis’ view, this was a deliberate overturning of Rogers, as the majority in Vavilov went on to acknowledge that its decision “depart[ed] from the Court’s existing jurisprudence on standard of review in certain respects” (SOCAN, para 125; Vavilov, para 70).
The Majority’s Approach Is an Unacceptable Departure From Stare Decisis
On its merits, the majority’s justification for applying correctness review to Board decisions is persuasive. With respect to the rule of law, it is clear that correctness review would promote legal consistency—a key element of the rule of law. Justice Karakatsanis’ rebuttal to this point is merely that inconsistencies can never be eradicated in full (SOCAN, paras 129-130). While this is true, it does not mean that they should not be avoided wherever possible. With respect to legislative intent, it is also evident that in providing concurrent first jurisdiction over the Act, Parliament did not intend to isolate the Board’s activities from judicial involvement. Although Justice Karakatsanis rightfully notes that this particular method of demonstrating legislative intent was not contemplated in Vavilov, it is sufficiently analogous to the two examples enumerated in Vavilov and in principle, accords with the underlying question of whether or not Parliament intended to involve the judiciary in administrative decisions.
Despite the majority’s sound articulation of the benefits of correctness review, this cannot be examined in a vacuum. One must zoom out and re-situate the discussion within the critical jurisprudential context. Vavilov purported to set out an exhaustive regime for years to come. In doing so, it very clearly had access to jurisprudence wherein correctness was applied in cases of concurrent first jurisdiction. This is fatal to the majority’s decision. Irrespective of the merits of correctness review in such cases, the SCC in Vavilov had the opportunity to carve out a sixth category but did not. In having the relevant case law before it and choosing not to act on it, it is reasonable to infer that the SCC declined to treat cases of concurrent first jurisdiction as worthy of correctness review. In other words, although the court did not explicitly exclude such categories, it effectively did so by omission. Any other interpretation effectively undermines the court’s own competence and suggests that it is capable of such an oversight.
Unfortunately, I agree with Justice Karakatsanis’ assessment that Justice Rowe’s decision will “not be without consequences” (SOCAN, para 135). She predicts that “not only will [the decision] open the door to endless litigation concerning possible exceptions to the reasonableness presumption, it will erode the presumption of reasonableness in all standard of review cases going forward [emphasis added]” (SOCAN, para 135). Ultimately, the SCC should avoid purporting to clarify legal approaches and then re-mystifying them soon afterwards.
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