Canadian Copyright Licensing Agency (Access Copyright) v. Canada

Canadian Copyright Licensing Agency (Access Copyright) v. Canada
Court (s) Database
Federal Court of Appeal Decisions
Date
2018-03-22
Neutral citation
2018 FCA 58
File numbers
A-293-15
Notes
A correction was made on April 04, 2018.
Digest
Decision Content
Date: 20180322
Docket: A-293-15
Citation: 2018 FCA 58
CORAM:
STRATAS J.A.
NEAR J.A.
RENNIE J.A.
BETWEEN:
THE CANADIAN COPYRIGHT LICENSING AGENCY,
OPERATING AS ACCESS COPYRIGHT
Applicant
and
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ALBERTA,
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF MANITOBA, THE PROVINCE OF NEW BRUNSWICK, HER MAJESTY IN RIGHT OF NEWFOUNDLAND AND LABRADOR, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA, THE GOVERNMENT OF NUNAVUT, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF PRINCE EDWARD ISLAND, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF SASKATCHEWAN, GOVERNMENT OF YUKON AND HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA
Respondents
Heard at Toronto, Ontario, on June 20, 2016.
Judgment delivered at Ottawa, Ontario, on March 22, 2018.
REASONS FOR JUDGMENT BY:
STRATAS J.A.
CONCURRING REASONS BY:
RENNIE J.A.
CONCURRED IN BY:
NEAR J.A.
Date: 20180322
Docket: A-293-15
Citation: 2018 FCA 58
CORAM:
STRATAS J.A.
NEAR J.A.
RENNIE J.A.
BETWEEN:
THE CANADIAN COPYRIGHT LICENSING AGENCY,
OPERATING AS ACCESS COPYRIGHT
Applicant
and
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ALBERTA,
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF MANITOBA, THE PROVINCE OF NEW BRUNSWICK, HER MAJESTY IN RIGHT OF NEWFOUNDLAND AND LABRADOR, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA, THE GOVERNMENT OF NUNAVUT, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF PRINCE EDWARD ISLAND, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF SASKATCHEWAN, GOVERNMENT OF YUKON AND HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA
Respondents
REASONS FOR JUDGMENT
STRATAS J.A.
[1] The applicant, Access Copyright, applies for judicial review of the decision dated May 22, 2015 of the Copyright Board.
[2] In its decision, the Copyright Board certified royalty rates in two proposed tariffs filed by Access Copyright. Specifically, the royalties are those that the respondent provincial and territorial governments must pay Access Copyright for the reproduction of copyright-protected works in Access Copyright’s repertoire in certain years. At issue here are the royalties the respondents must pay in a tariff covering the years 2010-2014.
[3] For the reasons that follow, I would dismiss the application for judicial review with costs.
A. Overview of the legislative provisions relevant to this application
[4] Access Copyright is a “collective society”: Copyright Act, R.S.C. 1985, c. C-42, section 2. Loosely put—and just highlighting those matters relevant to this case—that means that it obtains remuneration for the benefit of those who, through licence agreements, appoint it as their agent and authorize it to act on their behalf for that purpose.
[5] Access Copyright also falls under subsection 70.1(a) of the Copyright Act. It “operates… a licensing scheme” that applies “in relation to a repertoire of works of more than one author” and “sets out the classes of uses for which and the royalties and terms and conditions on which it agrees to authorize” such things as reproducing the works.
[6] As a result, sections 70.11 to 70.6 apply to it.
[7] Under section 70.12 of the Copyright Act, Access Copyright may propose tariffs to the Board. Objections may be filed.
[8] The Board then adjudicates the fairness and appropriateness of the proposed tariff. In the words of section 70.15 of the Act, the Board “shall certify the tariffs as approved, with such alterations to the royalties and to the terms and conditions related thereto as the Board considers necessary, having regard to any objections to the tariffs.”
[9] Once tariffs are certified, among other things, Access Copyright may, for the period specified in its approved tariff, collect the royalties specified in the tariff and, in default of their payment, recover them in a court of competent jurisdiction: sections 68.2(1) and 70.15(2) of the Copyright Act.
B. What happened here
[10] Access Copyright proposed tariffs setting out the royalty rates to be paid to Access Copyright concerning the copying of published works in Access Copyright’s repertoire by provincial and territorial governments during the 2005-2009 and 2010-2014 periods. A tariff was proposed for each period.
[11] The first tariff proposed by Access Copyright did not cover the making of digital copies. The second tariff proposed by Access Copyright did authorize the making and distribution of digital copies subject to certain terms. One term required government licensees, when they were no longer covered by the proposed tariff, to cease to use these digital copies and to delete them from their computer hard drives and other electronic media. This condition is known as the Deletion Provision.
[12] Following a lengthy hearing, the Board certified two tariffs. In the first tariff, the Board certified annual royalty rates payable to Access Copyright of 11.56 cents per full-time equivalent employee for the first period. In the second tariff, it certified the rates at 49.71 cents per full-time equivalent employee for the second period.
[13] Very much at issue in this judicial review is what the Board did with the Deletion Provision.
C. Proceedings before the Board
[14] Access Copyright and the respondents entered into a memorandum of understanding to conduct a joint study of the volume and nature of the copying of published works by provincial and territorial government employees. The parties refer to this as the Volume Study.
[15] The Volume Study was to estimate the annual volume of compensable copying of published works in Access Copyright’s repertoire in order to calculate annual royalty rates for the first and second tariffs. The Volume Study was carried out and results were obtained.
[16] Access Copyright chose not to rely on the results in the Volume Study. Instead, it proposed a different methodology. It relied on royalty rates it had previously negotiated with the federal government, the governments of Alberta, Saskatchewan and Ontario, and an agreement between Copibec, a copyright collective based in Quebec, and the government of Quebec. Access Copyright also adduced evidence of standard affiliation agreements with its authors and publisher affiliates. These standard agreements expressly prohibited Access Copyright from licensing digital copying of published works in the absence of the Deletion Provision.
[17] The respondents relied on results from the Volume Study to support their proposed royalty rates. They submitted that the Board should use a tariff methodology, known as the “volume times value” tariff methodology, that it employed in an earlier Board decision concerning a tariff proposed by Access Copyright. Under this methodology, the volume of compensable copying is multiplied by the estimated value of each page of a copied work to obtain a final certified royalty rate.
[18] One of the respondents, British Columbia, objected to the Deletion Provision proposed by Access Copyright in its second tariff. It submitted that requiring destruction of digital copies when a tariff has expired is improper and unreasonable.
[19] After the Board had completed the oral evidence phase of its hearing, the Board issued a notice establishing a timetable for submissions relating to the wording and administrative provisions contained in the proposed tariffs. The notice specifically required Access Copyright to “address the wording and administrative issues already raised by the objectors, and especially those raised in paragraphs 22 to 33 of Exhibit BC-1.” These paragraphs referred to British Columbia’s objection to the Deletion Provision.
[20] In its submissions, Access Copyright argued that that the parties were invited to address the wording and administrative provisions contained in the proposed tariffs, not issues of substance. Nevertheless, in its view, the Deletion Provision was appropriate and necessary because it was unable to license digital copying without it. It said that the Deletion Provision was a “condition of the grant of rights provided by Access Copyright’s affiliates to Access Copyright”: respondents’ record at p. 322.
[21] The respondents submitted that substantive issues could be addressed as a result of examining the wording and administrative provisions contained in the proposed tariffs. Thus, they addressed the propriety of the Deletion Provision. They submitted that the Deletion Provision should be removed because of the practical impossibility of compliance, Access Copyright had no legal right to control the use of a legally made copy, and the importance of treating digital copies in a technologically neutral manner: respondents’ record at pp. 347-348.
[22] Access Copyright replied, reiterating its position that because the Deletion Provision was a condition of the grant of rights to it by its authors and publisher affiliates, it “does not (and cannot) agree” to its removal from the final certified tariff: respondents’ record at p. 361.
[23] On May 6, 2014, the Board issued an order setting out its preliminary view on the Deletion Provision. The Board stated that the Deletion Provision should not be included in the second tariff. The Board asked seven questions concerning the Deletion Provision. The fourth asked about the effect that the non-inclusion of the Deletion Provision would have on the compensability of digital copies, including whether digital copying could be covered in the second tariff if the Deletion Provision was not included.
[24] The Board also informed the parties that it would provide them with a list of copying events that it had “preliminarily identified as representing acts of copying that would be compensable under the proposed tariffs” and would ask them to “make calculations that will help to establish the per-[Full Time Employee] royalty”: respondents’ record at p. 402. The parties had previously agreed that the Board should review 291 copying events in order to analyze compensability under the proposed tariffs.
[25] Access Copyright responded to the Board’s questions. On the fourth question, Access Copyright reiterated its earlier submission that the Deletion Provision was a condition of its grant of rights from its authors and publisher affiliates. But it added that it had obtained permission from its Board of Directors to license digital copying without the Deletion Provision and that it would request permission from its affiliates to remove the Deletion Provision from its licences.
[26] The respondents other than British Columbia submitted that although they would prefer that the second tariff cover digital works, if Access Copyright were unable to license digital copying without the Deletion Provision, the copying of digital works should not be considered compensable. British Columbia submitted that if the Deletion Provision were not included, digital copying would be outside of the scope of Access Copyright’s licence and, therefore, digital copying would not be compensable.
[27] The Board permitted the parties to file responses to each other’s submissions.
[28] Access Copyright stated that it had proposed a reasonable compromise in its submission “that recognizes there is no need to require the deletion of digital copies where there is no further infringing use”: respondents’ record at p. 436.
[29] The respondents other than British Columbia saw Access Copyright as attempting to retroactively build its repertoire of rights. It argued that the Board should not certify a tariff based on rights that do not yet exist. They also noted that Access Copyright had not filed any evidence of permission to license digital copying with the Deletion Provision and it was too late to introduce any new evidence.
[30] The Board then issued an order dealing with its analysis of the 291 copying events identified in the Volume Study. It found on a preliminary basis that 26 out of the 291events were compensable. This list of 26 excluded all digital copying events. The Board asked the parties to make some calculations on this basis. It did not invite any further submissions.
[31] Access Copyright filed a letter offering those calculations. It also filed a separate letter challenging the Board’s preliminary conclusions concerning the 26 events. Access Copyright also informed the Board that a majority of its publisher affiliates had agreed to waive the Deletion Provision with retroactive effect to the start date of the second tariff.
[32] The respondents wrote to object to Access Copyright’s extra submissions.
[33] The Board upheld the objection. Access Copyright’s further submissions were not requested by the Board, they came almost two years after final oral arguments had been made, and the submissions were speculative in nature: respondents’ record at p. 468.
[34] On May 22, 2015, the Board reached its final decision. It adopted the respondents’ preferred methodology, the “volume times value” approach. In applying this methodology, the Board excluded from the total number of compensable copying events all digital copying events identified in the Volume Study because the Board had decided not to include the Deletion Provision in the second tariff. Five copying events that exceeded a maximum 10% copying limit imposed by the tariff were also excluded.
[35] In this application for judicial review, the Deletion Provision is a central focus. The parties characterize quite differently what the Board did. Issues relating to procedural fairness, the Board’s evaluation of substantial copying and its application of fair dealing are also in issue.
[36] The parties’ characterizations of what the Board did concerning the Deletion Provision are worth canvassing as they affect the standard of review analysis.
[37] Access Copyright submits that it put forward certain terms and conditions to the Board. In its decision, the Board altered one: it removed the Deletion Provision: see paras. 151-159 of its reasons. As a result, an entire class of use—permission to the respondents to make digital copies—was removed from the tariff. The Board decided that the removal of the Deletion Provision deprived Access Copyright of any and all authority to licence digital uses: see paras. 161-167 of its reasons.
[38] This, Access Copyright says, the Board could not do. It submits that the Board had no authority under the Copyright Act to vary the terms and conditions on digital uses that Access Copyright agreed to authorize. Nor did it have authority to remove a term of digital use and thereafter to remove the entire class of digital use from the tariff on the basis of that improperly removed condition. It characterizes this as an issue that goes to the Board’s jurisdiction.
[39] Access Copyright submits that this removal was not necessarily tied to the Board’s rate-setting function. Instead, the Board was to value the rights of use—here, rights including the Deletion Provision—as presented by Access Copyright. In doing what it did, Access Copyright says that the Board failed to value the rights as presented by Access Copyright (i.e., including the Deletion Provision). The Board did not have the power to remove the Deletion Provision.
[40] As a result of this error, Access Copyright says that the Board failed to exercise its power to determine the value of the licensed right that was subject to the Deletion Provision.
[41] Access Copyright also submits that none of the respondents pleaded or advocated for the removal of the Deletion Provision until the Board first raised this issue roughly a year and a half after the hearing began. In its view, there was procedural unfairness that vitiates the Board’s decision.
[42] The respondents characterize what the Board did with the Deletion Provision differently. They say that the Board did not decide to remove the Deletion Provision. Instead, the Board decided not to include it in its tariff. In so doing, it exercised its discretion under section 70.15 of the Act to set tariffs. In Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2010 FCA 139, 403 N.R. 309 (“SOCAN (2010)”), this Court upheld the jurisdiction of the Board to exclude classes of uses from a tariff. This is what the Board did here. In no way did the Board vary the terms and conditions on digital uses that Access Copyright agreed to authorize.
D. Analysis
(1) Reviewing the substance of the Board’s decision
(a) The proper standard of review
[43] For the moment, for argument’s sake, I shall adopt Access Copyright’s characterization of what the Board did concerning the Deletion Provision. Even on Access Copyright’s characterization of what the Board did, some of its submissions on the standard of review cannot be accepted.
[44] Access Copyright submits that the standard of review of what the Board did concerning the Deletion Provision is correctness because this is a jurisdictional matter: the Board “exceeded its jurisdiction” in making its decision. It submits that the Board had no jurisdiction to alter the terms and conditions relating to the classes of uses that the collective society sets out and agrees to authorize.
[45] Put another way, Access Copyright says that the Board can consider and, if appropriate, change the proposed royalties and the terms and conditions proposed to be associated to those royalties, but cannot go further and change the terms and conditions of Access Copyright’s arrangements with copyright holders.
[46] Even on Access Copyright’s characterization of what the Board did, the standard is reasonableness, not correctness. I reject the submission that we have before us a jurisdictional issue warranting correctness review.
[47] What the Board had before it—and what is before us now—is the Copyright Act. It sets out what the Board may do. The question of what the Board may do, then, is a question of statutory interpretation.
[48] Thus, in deciding what it could and could not do, the Board had to expressly or implicitly take a view of what the Copyright Act says on that issue. In other words, we are dealing with the Board’s express or implicit view—its interpretation—of its home statute.
[49] Three recent Supreme Court majority decisions affirm that the standard of review on this is reasonableness: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Quebec (Attorney General) v. Guérin, 2017 SCC 42, , 412 D.L.R. (4th) 103; Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3.
[50] These cases stand for the proposition that reasonableness is the presumed standard of review for an administrative decision-maker’s interpretation of legislative provisions with which it is familiar or that it frequently uses. Here, the Copyright Board is interpreting the Copyright Act, legislation with which it is familiar and that it frequently uses.
[51] These Supreme Court cases are hardly new. They confirm an earlier and unwavering line of majority Supreme Court jurisprudence on this point. Although there are literally tens of Supreme Court cases that have employed the presumption of reasonableness in the case of interpretations of regulatory provisions by administrative decision-makers, I shall mention only the two most important, foundational ones.
[52] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court held (at para. 54) that “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity.”
[53] In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 34, the majority of the Supreme Court held that “unless the situation is exceptional…the interpretation by the tribunal of ‘its own statute or statutes closely connected to its function, with which it will have particular familiarity’ should be presumed to be a question of statutory interpretation subject to deference on judicial review.”
[54] I wish to address more directly Access Copyright’s submission that where “jurisdiction” is involved the standard of review is correctness. When one looks at the jurisprudence, we see that this sort of submission arises in two ways.
– I –
[55] The first way is that this was a fundamental issue relating to the limits of the Board’s power. The Board, so-to-speak, had to decide whether it was inside or outside the fences set up for it by Parliament. This was a “jurisdictional issue” that the Board had to get right before it entered into its assessment of Access Copyright’s proposed tariff.
[56] We receive this sort of submission quite often. We write cases rejecting it over and over again based on the Supreme Court’s standard of review jurisprudence: see, e.g., Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332 at paras. 39-46; Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 194, [2011] 3 F.C.R. 344 at paras. 28-29.
[57] For the moment, let’s define a so-called “jurisdictional question” as one requiring an assessment as to whether the administrator has done something that its legislation does not permit it to do. But to answer this question, we must interpret the legislation to define the limits of what the administrator can do. Thus, a “jurisdictional question” is really a question of legislative interpretation, one calling for reasonableness review on the basis of all of the above authorities.
[58] Put another way, the issue whether an administrative tribunal is inside or outside the “jurisdictional” fences set up by Parliament is really an issue of where those fences are—in other words, an interpretation of what the legislation says about what the administrative decision-maker can or cannot do.
[59] This Court has repeatedly concurred with this idea. It has held that “jurisdictional questions” defined in that way are really questions of legislative interpretation on which reasonableness is presumed to be the standard of review. They are not “true questions of jurisdiction” as that phrase is understood in Dunsmuir. See Public Service Alliance of Canada v. Canadian Federal Pilots Assn., 2009 FCA 223, [2010] 3 F.C.R. 219: C.B. Powell Limited v. Canada (Border Services Agency), 2011 FCA 137, 418 N.R. 33 at paras. 20-22; Globalive Wireless, above at para. 34; Canada (Attorney General) v. Professional Institute of the Public Service of Canada, 2011 FCA 20, 414 N.R. 256; Wheatland County v. Shaw Cablesystems Limited, 2009 FCA 291, 394 N.R. 323 at paras. 38-41; Canada (Attorney General) v. Public Service Alliance of Canada, 2011 FCA 257, 343 D.L.R. (4th) 156; Canada (Attorney General) v. Access Information Agency Inc., 2018 FCA 18 at paras. 16-20.
[60] These authorities bind us and preclude us from accepting Access Copyright’s submission that we are dealing with an issue of “jurisdiction.” And for good reason. The courts have been down the road of correctness for so-called jurisdictional questions and have seen its flaws.
[61] Long ago, courts interfered with decisions of administrative decision-makers by labelling their rulings on “preliminary” or “entry” matters as going to their “jurisdiction”: see, e.g., Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756, 18 D.L.R. (3d) 1. In effect, certain questions that, as discussed above, were really questions of legislative interpretation, were given the “preliminary” or “entry” label, as opposed to others. Criteria for what is “preliminary” or “entry” was never articulated, nor could it be: what is “preliminary” or “entry” is purely arbitrary and in the eye of the beholder. Nevertheless, by labelling certain matters as “preliminary” or “entry” questions, and calling them “jurisdictional,” courts freely substituted their view of the matter for that of the administrative decision-maker, even in the face of privative clauses—in effect, correctness review. It did not take much creativity or effort for judges to characterize something as “jurisdictional” and impose their views over those of the administrative decision-maker.
[62] Over thirty years ago, seeing the evident flaws with this approach, the Supreme Court began to discard it. In C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227, 97 D.L.R. (3d) 417, Dickson J. (as he then was), writing for a unanimous Supreme Court, declared (at p. 233), “[t]he courts, in my view, should not be alert to brand as jurisdic­tional, and therefore subject to broader curial review, that which may be doubtfully so.”
[63] The movement away from the old jurisdictional approach was pretty much complete as a result of the Supreme Court’s decision in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, 35 Admin. L.R. 153. From that time forward until Dunsmuir in 2008, the Supreme Court reviewed the substance of administrative decision-making on the basis of a “pragmatic and functional test.” The test required the Court to determine the standard of review by applying four factors and then assessing the acceptability and defensibility of the administrative decision without regard to the outmoded ground of “jurisdictional error.”
[64] In Dunsmuir, the Supreme Court recast the approach reviewing courts should follow when assessing the substance of administrative decisions. But it did not go back to the old approach of “jurisdictional error.” Quite the contrary: it disparaged it. It called it “a highly formalistic, artificial ‘jurisdiction’ test that could easily be manipulated”: Dunsmuir at para. 43.
[65] In Dunsmuir at para. 35, the Supreme Court commented upon Dickson J’s warning in C.U.P.E.:
Prior to CUPE, judicial review followed the “preliminary question doctrine”, which inquired into whether a tribunal had erred in determining the scope of its jurisdiction. By simply branding an issue as “jurisdictional”, courts could replace a decision of the tribunal with one they preferred, often at the expense of a legislative intention that the matter lie in the hands of the administrative tribunal. CUPE marked a significant turning point in the approach of courts to judicial review, most notably in Dickson J.’s warning that courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (p. 233). Dickson J.’s policy of judicial respect for administrative decision making marked the beginning of the modern era of Canadian administrative law.
[66] These words are wise. And on this, the Supreme Court does not stand alone.
[67] In a recent case, the majority of the Supreme Court of the United States decried the “jurisdictional error” approach, noting that virtually any decision can be said to raise a “jurisdictional” issue warranting overly intrusive correctness review: City of Arlington v. F.C.C., 133 S. Ct. 1863 (2013). The only possible limit would be to somehow distinguish certain questions of legislative interpretation—so called “entry questions” or “preliminary questions”— from questions of legislative interpretation, a evanescent distinction discoverable not on principle but rather on the whim or idiosyncratic musings of a reviewing judge. This offends the rule of law which supplies the primary basis for judicial interference with administrative decision-making: the outcome of cases cannot depend on the whim of the judge. The majority of the Supreme Court of the United States put it this way (at p. 1871): this sort of exercise places the judge in the position of a “haruspex, sifting the entrails of vast statutory schemes to divine whether a particular agency interpretation qualifies as ‘jurisdictional’,” a task that is “not the product of reasoned decision-making.”
[68] After the wise words of Dunsmuir, cited above, the Supreme Court has repeatedly sounded the warning of Dickson J. (as he then was) not to “brand as jurisdic­tional, and therefore subject to broader curial review, that which may be doubtfully so”: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 45; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160 at para. 36; Alberta Teachers’ Association at para. 33; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3 at para. 126.
[69] Most importantly, in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, the Supreme Court overruled Bell, above, and its idea that there are certain preliminary questions or entry questions of jurisdiction that an administrative decision-maker must get right.
[70] Quite simply, the use of the label “jurisdiction” to justify judicial interference with administrative decisions is no longer appropriate and was rightly discarded long ago. Through experience with the concept over some decades, it has seen to be unprincipled and doctrinally unsound.
[71] Recently, though, instability and uncertainty has bedeviled the Supreme Court’s standard of review jurisprudence. This has encouraged parties to raise matters long ago thought rejected.
[72] The old, discredited idea of labelling certain questions as “jurisdictional” and engaging in correctness review of them recently welled up again: Guérin, above. There, at the behest of the parties before it, the Supreme Court considered whether “jurisdiction” gives rise to correctness review: Guérin. Faced with Access Copyright’s submissions that the standard of review is correctness for jurisdictional questions and given the instability and uncertainty in the jurisprudence, this Court awaited the Supreme Court’s decision in Guérin.
[73] In Guérin, the Supreme Court did not give effect to the idea of correctness for so-called jurisdictional questions, questions that, as I have explained, are really just issues of statutory interpretation. But this was by only a bare majority.
[74] The majority of the Court in Guérin continued to apply the presumption of reasonableness to what, in its view, involved an administrator’s interpretation of the governing statute. The majority rejected the idea that some statutory interpretation issues are “jurisdictional” in nature inviting correctness review.
[75] Following the majority’s approach in Guérin, in my view administrative decision-makers are still kept within what some might call “jurisdictional fences.” The majority’s approach still respects what some call “jurisdiction.” There comes a point where an administrative decision-maker adopts a view of its statutory powers and the statutory scope of its authority that is neither acceptable nor defensible. When that happens, reviewing courts acting under the reasonableness standard will quash the administrative decision, thereby keeping the administrative decision-maker within its authority.
[76] Recently, forty articles, many of which were authored by leading members of the academy in the area of administrative law, were posted at the blog sites Administrative Law Matters and Double Aspect as part of a commemoration of the tenth anniversary of Dunsmuir. Of note is that not a single one advocated a return to the old, discredited approach of “jurisdiction.”
[77] For the foregoing reasons I conclude that even on Access Copyright’s characterization of the matter before us, the standard of review is reasonableness, not correctness.
– II –
[78] The second way that “jurisdictional” arguments of the sort that Access Copyright asserts in this case are commonly made is by reference to a portion of the Supreme Court’s seminal case of Dunsmuir. At para. 59 of Dunsmuir, the Supreme Court held that correctness is the standard of review for “true questions of jurisdiction.”
[79] Regrettably, the Supreme Court has never defined what a “true question of jurisdiction” is.
[80] The best that can be done is to examine para. 59 of Dunsmuir more closely. In that paragraph, the only case the Supreme Court cites to define a true question of jurisdiction is United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485. United Taxi concerned whether the City of Calgary was authorized under municipal acts to enact bylaws limiting the number of taxi plate licences. In other words, it was considering an issue of vires relating to subordinate legislation. This is not what we are dealing with in the case at bar.
[81] And at the same time, also in Dunsmuir, the Supreme Court warns us that in deciding what a “true question of jurisdiction” is, we must remember that this category “will be narrow” and, referring to C.U.P.E., above, it has told us that we must not brand as jurisdictional issues that are doubtfully so. In providing for correctness review for true questions of jurisdiction, the Supreme Court did not mean to throw us back to the old “jurisdictional” approach.
[82] Also of significance is that three times after Dunsmuir, the Supreme Court has queried whether the “true question of jurisdiction” category of correctness review exists: Alberta Teachers’ Association, above at para. 34; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 at paras. 25-33; Edmonton East at para. 26. This makes sense as, for reasons explained above, issues of jurisdiction are actually issues of legislative interpretation. And, also as explained above, the standard of review for decisions by administrative decision-makers concerning the interpretation of legislative provisions is presumed to be reasonableness.
[83] I do not mean to suggest that this avenue for correctness review is permanently foreclosed. It still remains a feature of Dunsmuir and the Supreme Court has not removed it from the law. There may be a day when the Supreme Court defines “true questions of jurisdiction” in a clearer way and starts to resort to this avenue of correctness review. But that day has not yet come: the Supreme Court has not resorted to it in the ten years since Dunsmuir was decided.
[84] Therefore, I conclude that even if I were to accept Access Copyright’s characterization of what the Board did concerning the Deletion Provision, the standard of review on this point would be reasonableness. But I do not accept Access Copyright’s characterization. I turn to that now.
(b) The proper characterization of what the Board did concerning the Deletion Provision
[85] The first step in considering an application for judicial review is to interpret and properly characterize what the administrative decision-maker has done that is impugned in the judicial review proceedings—i.e., identify and characterize the decision under review. Once the relevant decision has been identified and characterized, the reviewing court can determine whether or not the decision is reasonable. See Canada (Attorney General) v. Boogaard, 2015 FCA 150, 474 N.R. 121 at para. 36.
[86] In my view, the respondents have properly characterized the decision under review. The Board did not decide to remove the Deletion Provision. Instead, the Board decided not to include it in its tariff. This is an entirely different thing, one that it is able to do as part of its exercise of discretion under 70.15 of the Act when setting tariffs.
[87] To some extent, the characterization issue before us has been settled by our earlier jurisprudence. We are bound by that jurisprudence: Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149. In SOCAN (2010), this Court upheld the jurisdiction of the Board to exclude classes of uses from a tariff. This is what the Board did here. In no way did the Board vary the terms and conditions on digital uses that Access Copyright agreed to authorize.
[88] We must now assess whether the Board’s decision not to include the matters related to the Deletion Provision in the tariff was reasonable.
(c) The meaning of reasonableness
[89] The Supreme Court has told us that reasonableness is a “range of acceptable and defensible outcomes” or a “margin of appreciation”: Dunsmuir at para. 47; McLean, at para. 38.
[90] Repeatedly, the Supreme Court has suggested that reasonableness “takes its colour from the context” and “must be assessed in the context of the particular type of decision-making involved and all relevant factors”: Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5 at para. 18; Khosa, above at para. 59; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770 at paras. 22 and 73; Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 at para. 57; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458 at para. 74; Halifax, above at para. 44; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 at para. 54. In other words, certain circumstances, considerations and factors in particular cases influence how we go about assessing the acceptability and defensibility of administrative decisions.
[91] Looking at this from the perspective of reviewing courts, if the circumstances, considerations and factors differ from case to case, how reviewing courts go about measuring acceptability and defensibility will differ from case to case; in other words, reasonableness will “take its colour from the context” of the case. Looking at this from the perspective of administrative decision-makers, as a practical matter some decision-makers in some contexts seem to be given more leeway or a broader “margin of appreciation” than other decision-makers in other contexts.
[92] For this reason, sometimes we see some administrative decision-makers afforded a very broad range or margin of appreciation and others less so: compare, for example, cases like John Doe v. Ontario (Finance), 2014 SCC 36, [2014] 2 S.C.R. 3 with Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616. Although the Supreme Court sometimes tells us that reasonableness is a single standard of deference, there is no doubt that under the reasonableness standard, all other things being equal, the deference it gives to administrative decisions rooted in socio-economic policy is greater than the deference it gives to administrative decisions grappling with legal matters, like, for instance, where the text of the legislation is fairly clear and the administrator has not offered any specialized or policy-based insight into the matter.
[93] In many cases, this Court has followed these trends in the Supreme Court’s jurisprudence and has identified a number of factors that might affect the “colour” of reasonableness review or, put another way, the intensity of review: see, e.g., Canada (Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006; Canada (Attorney General) v. Abraham, 2012 FCA 266, 440 N.R. 201 at paras. 37-50, Canada (Attorney General) v. Canadian Human Rights Commission, 2013 FCA 75, 444 N.R. 120 at paras. 13-14 (the “Aboriginal Children” case); Boogaard, above; Re:Sound v. Canadian Association of Broadcasters, 2017 FCA 138, 148 C.P.R. (4th) 91 (“Re:Sound (2017)”). The Court of Appeal for Ontario has done this as well: Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 436, 237 O.A.C. 71 at para. 22.
[94] Several matters of context have been identified in the jurisprudence and a few examples will suffice to illustrate.
[95] Statutes and the case law of courts can constrain what is considered to be acceptable and defensible or within the margin of the appreciation of the administrative decision-maker. Take, for example, a taxation officer who must consider whether relief should be given w