Bell Canada v. 7265921 Canada Ltd.

Bell Canada v. 7265921 Canada Ltd.
Court (s) Database
Federal Court of Appeal Decisions
Date
2018-10-01
Neutral citation
2018 FCA 174
File numbers
A-51-16
Notes
A correction was made on July 24, 2019.
Reported Decision
Decision Content
Date: 20181001
Docket: A-51-16
Citation: 2018 FCA 174
CORAM:
NADON J.A.
RENNIE J.A.
WOODS J.A.
BETWEEN:
BELL CANADA and BELL MEDIA INC.
Appellants
and
7262591 CANADA LTD. (D.B.A. GUSTO TV), ACCESS COMMUNICATIONS CO-OPERATIVE LIMITED, ALLARCO ENTERTAINMENT INC., ANTHEM MEDIA GROUP, BLUE ANT MEDIA INC., CANADIAN CABLE SYSTEMS ALLIANCE INC., CBC/RADIO-CANADA, COGECO INC., COMPETITION BUREAU, DHX MEDIA LTD., EASTLINK, GROUPE V MÉDIA INC., INDEPENDENT BROADCAST GROUP/LE GROUPE DE DIFFUSEURS INDÉPENDANTS, L’OFFICE DES TÉLÉCOMMUNICATIONS ÉDUCATIVES DE LANGUE FRANÇAISE DE L’ONTARIO (GROUPE MÉDIA TFO), MEDIAMIND DIGITAL, MTS INC., PELMOREX COMMUNICATIONS INC., PUBLIC INTEREST ADVOCACY CENTRE, QUÉBECOR MÉDIA INC., SASKATCHEWAN TELECOMMUNICATIONS, SOGETEL INC., STINGRAY DIGITAL GROUP INC.,STORNOWAY COMMUNICATIONS LIMITED PARTNERSHIP, TEKSAVVY SOLUTIONS INC. AND HASTINGS CABLE VISION LTD., TELUS, TV5 QUÉBEC CANADA, VMEDIA INC. and ZAZEEN INC.
Respondents
Heard at Ottawa, Ontario, on November 14, 2017.
Judgment delivered at Ottawa, Ontario, on October 1, 2018.
REASONS FOR JUDGMENT BY:
WOODS J.A.
CONCURRING REASONS BY:
NADON J.A.
DISSENTING REASONS BY:
RENNIE J.A.
Date: 20181001
Docket: A-51-16
Citation: 2018 FCA 174
CORAM:
NADON J.A.
RENNIE J.A.
WOODS J.A.
BETWEEN:
BELL CANADA and BELL MEDIA INC.
Appellants
and
7262591 CANADA LTD. (D.B.A. GUSTO TV), ACCESS COMMUNICATIONS CO-OPERATIVE LIMITED, ALLARCO ENTERTAINMENT INC., ANTHEM MEDIA GROUP, BLUE ANT MEDIA INC., CANADIAN CABLE SYSTEMS ALLIANCE INC., CBC/RADIO-CANADA, COGECO INC., COMPETITION BUREAU, DHX MEDIA LTD., EASTLINK, GROUPE V MÉDIA INC., INDEPENDENT BROADCAST GROUP/LE GROUPE DE DIFFUSEURS INDÉPENDANTS, L’OFFICE DES TÉLÉCOMMUNICATIONS ÉDUCATIVES DE LANGUE FRANÇAISE DE L’ONTARIO (GROUPE MÉDIA TFO), MEDIAMIND DIGITAL, MTS INC., PELMOREX COMMUNICATIONS INC., PUBLIC INTEREST ADVOCACY CENTRE, QUÉBECOR MÉDIA INC., SASKATCHEWAN TELECOMMUNICATIONS, SOGETEL INC., STINGRAY DIGITAL GROUP INC.,STORNOWAY COMMUNICATIONS LIMITED PARTNERSHIP, TEKSAVVY SOLUTIONS INC. AND HASTINGS CABLE VISION LTD., TELUS, TV5 QUÉBEC CANADA, VMEDIA INC. and ZAZEEN INC.
Respondents
REASONS FOR JUDGMENT
RENNIE J.A. (dissenting)
I. Introduction
[1] Television services are provided to Canadians through the interaction of two types of commercial entities. Programming undertakings create content, either on their own or under licence from others. They transmit their programs to broadcasting distribution undertakings, which retransmit the programs through their networks, whether cable, satellite or broadband. There is, in effect, a symbiotic relationship between programming undertakings and broadcasting distribution undertakings, the commercial terms of which are negotiated and reflected in “affiliation agreements”.
[2] In 2015 the Canadian Radio-television and Telecommunications Commission (CRTC) imposed a policy to govern affiliation agreements, or simply, the contracts, between programming undertakings (PUs) and broadcasting distribution undertakings (BDUs). The CRTC implemented this policy through two decisions: Broadcasting Regulatory Policy 2015-438 (the 2015 Wholesale Code or the Code), and Broadcasting Order 2015-439 (the Order). The 2015 Wholesale Code establishes certain parameters on the negotiation and content of affiliation agreements. The Order makes the 2015 Wholesale Code binding on broadcasting distribution undertakings and requires them to distribute programs according to prescribed terms and conditions.
[3] I will turn to the 2015 Wholesale Code and its implications for affiliation agreements shortly, but pause to emphasize that while the Code, via the Order, is expressly binding only on BDUs (“distribution licensees”), it necessarily affects those that are counter-party to any negotiation and contract with a BDU, namely the programming undertakings.
[4] Bell Canada and Bell Media Inc. appeal these decisions under section 31 of the Broadcasting Act, S.C. 1991, c. 11. Bell asserts that the mandate vested in the CRTC by section 3 of the Broadcasting Act to implement the Broadcasting Policy for Canada does not authorize the CRTC to interfere in the economic relationship between BDUs and PUs. Its argument is twofold: the 2015 Wholesale Code is not authorized by paragraph 9(1)(h) of the Broadcasting Act and secondly, the Code violates Bell’s copyright interests guaranteed under paragraph 3(1)(f) and subsection 13(4) of the Copyright Act, R.S.C. 1985, c. C-42. In consequence, the 2015 Wholesale Code and Order are ultra vires the CRTC’s powers.
[5] There is no doubt that the exercise by the CRTC of its authority in respect of BDUs will have effects, both direct and consequential, on PUs. The question in their appeal, however, is whether, given the reach of the Code and its effects, it is “too great a stretch from the core purposes [of] … and from the powers granted to the CRTC under the Broadcasting Act” (Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68 at para. 33, [2012] 3 S.C.R. 489 (Cogeco) per Rothstein J.).
[6] In order to understand the issues in this appeal some context is necessary.
II. Background
[7] The Broadcasting Information Bulletin CRTC 2015-440 (the Bulletin), released contemporaneously with the Code, explains that the Code and the implementing Order arise from a concern on the part of the CRTC about increasing vertical integration of programming and broadcasting distribution entities and resulting concentration of market power. Beginning in 2011, the CRTC responded to this change in the commercial landscape through measures aimed at ensuring that vertical integration did not occur at the expense of a healthy wholesale market for the sale of program content, programming diversity and consumer choice as to types and combinations of programs they wish to receive and the platform or means by which they would receive programs. Those measures included:
issuing non-binding guidelines for the negotiation of commercial agreements between PUs and BDUs, such as the Broadcasting Regulatory Policy CRTC 2011-601 (Ottawa: CRTC, 2011) (amended in 2011-601-1) (the 2011 Wholesale Code or the 2011 Code);
imposing conditions of licence and group-based licence renewals on a case by case basis; and
establishing a dispute resolution process to address impasses in negotiations between PUs and BDUs (Broadcasting Distribution Regulations, SOR/97-555, ss. 12–15.02).
[8] In 2015 the CRTC replaced the voluntary 2011 Code with the more comprehensive Wholesale Code and, via the 9(1)(h) Order, required existing licensees to “abide” by the provisions in the 2015 Wholesale Code.
A. The 2015 Wholesale Code
[9] The Code is divided into five parts:
Application (sections 1–3);
Prohibitions (section 4);
Commercially unreasonable practices (section 5);
Commercially reasonable practices (sections 6–12); and
Affiliation agreements (sections 13–15).
[10] The 2015 Wholesale Code applies to “licenced programming and distribution undertakings” (sections 1–3). BDUs and PUs are both defined terms under the Broadcasting Act:
Definitions
Définitions
2 (1) In this Act,
2 (1) Les définitions qui suivent s’appliquent à la présente loi.
…
[…]
distribution undertaking means an undertaking for the reception of broadcasting and the retransmission thereof by radio waves or other means of telecommunication to more than one permanent or temporary residence or dwelling unit or to another such undertaking; (entreprise de distribution)
entreprise de distribution Entreprise de réception de radiodiffusion pour retransmission, à l’aide d’ondes radioélectriques ou d’un autre moyen de télécommunication, en vue de sa réception dans plusieurs résidences permanentes ou temporaires ou locaux d’habitation, ou en vue de sa réception par une autre entreprise semblable. (distribution undertaking)
…
[…]
programming undertaking means an undertaking for the transmission of programs, either directly by radio waves or other means of telecommunication or indirectly through a distribution undertaking, for reception by the public by means of broadcasting receiving apparatus; (entreprise de programmation)
entreprise de programmation Entreprise de transmission d’émissions soit directement à l’aide d’ondes radioélectriques ou d’un autre moyen de télécommunication, soit par l’intermédiaire d’une entreprise de distribution, en vue de leur réception par le public à l’aide d’un récepteur. (programming undertaking)
…
[…]
[Emphasis added]
[Soulignement ajouté]
[11] In the policy statement accompanying the Code, the CRTC explains that it intends to gradually “impose the Wholesale Code on all licensed [BDUs and PUs] by means of a condition of licence with a view to ultimately repealing the 9(1)(h) order” (at para. 137). Indeed, many of the requirements of the Code are already included as conditions in the appellants’ licences (see Blue Ant Memorandum of Fact and Law, Appendix B). The Order, which requires licensees to “abide” by the Code, bridges the gap between licence renewals and presumably seeks to ensure some degree of equivalency in licence conditions across the regulated industry.
[12] Section 4 of the Code sets out seven specific terms that are not permitted in affiliation agreements between PUs and BDUs. They include:
(a) terms that prohibit the distribution of programming services on a stand-alone basis;
(b) terms that prohibit the offering of programming services on a build-your-own-package or small package basis;
(c) provisions that unilaterally grandfather distribution on the same terms and conditions as the previously negotiated agreement;
(d) veto rights by PUs of BDU packaging changes;
(e) requirements to mirror existing analog tiers in a digital offering;
(f) most favoured nation (MFN) provisions, or any similarly worded provision that has the effect of guaranteeing terms as favourable as those agreed to with other parties in other affiliation agreements; and
(g) minimum penetration, revenue or subscription levels, except where negotiated by an independent programming service.
[13] Section 5 precludes commercially unreasonable practices, including:
(a) requiring an unreasonable rate (defined as other than fair market value);
(b) requiring an unreasonable volume-based rate card;
(c) requiring an unreasonable penetration-based rate card;
(d) requiring the acquisition of a program or service in order to obtain another program or service (tied-selling);
(e) imposing unreasonable terms and conditions that restrict the ability of a BDU to provide consumer choice; and
(f) imposing unreasonable terms and conditions that restrict a programming service or a BDU from providing programming on multiple distribution platforms.
[14] Section 6 describes what the CRTC considers to be commercially reasonable practices. It mandates that seven factors – 6(a) to 6(g) – be considered during negotiations to establish the fair market value of the wholesale rate for programming. Sections 7 to 12 are aimed at preventing vertically-integrated entities from discriminating against independent programming services. In particular, sections 7 to 10 are aimed at the packaging and marketing of independent programming services, and sections 11 and 12 at ensuring multiplatform access to independent programming services.
[15] Where an affiliation agreement has not been renewed by 120 days before its expiration date and where both parties confirm in writing their intention to renew, the Code requires that the dispute be referred to the CRTC for dispute resolution (section 13). As I will explain, this requirement is a key component of Bell’s argument.
[16] Finally, affiliation agreements and all other agreements regarding programming services are to be filed with the CRTC (sections 14–15).
[17] With the context having been set, I turn to the substantive issues.
III. Issues
[18] Bell contends that the Code, and its enabling Order, are ultra vires the CRTC’s powers insofar as they affect its interests as a programming undertaking. Whether that argument succeeds lies in the answer to three subsidiary questions:
Is the decision of the Supreme Court of Canada in Cogeco dispositive of the issues in this appeal?
If Cogeco is not dispositive, is the Code within the power of the CRTC under paragraph 9(1)(h) of the Broadcasting Act?
Does the Code conflict, in operation or purpose, with the Copyright Act?
[19] I will address the applicable standard of review in the context of issues B and C. Blue Ant Media, a respondent, raises the additional argument that the Court should, in the exercise of its discretion, bar Bell from any remedy by reason of its conduct. This will be addressed at the end of these reasons.
IV. Analysis
A. Is the decision of the Supreme Court of Canada in Cogeco dispositive of the issues in this appeal?
[20] Bell submits Cogeco stands for the principle that the CRTC cannot regulate any aspect of the economic and commercial relationship between PUs and BDUs. Bell contends that as the Code directly interferes in the manner and content of affiliation agreements and effectively limits, dilutes or negates some of its rights under the Copyright Act, the Code falls squarely within the scope of the prohibition in Cogeco. Bell’s argument requires careful consideration of what Cogeco decided.
[21] The issue in Cogeco was “whether the CRTC ha[d] the jurisdiction to implement the proposed value for signal regime” (VSR) (Cogeco at para. 14). The VSR, what it was and what it did, is critical to understanding Cogeco.
[22] In 2010, the CRTC was concerned about the economic viability of broadcasters (which, in effect, meant only PUs because BDUs are not included in the definition of “broadcaster” under section 2 of the Copyright Act). In order to ensure that the public would continue to benefit from the diversity of programming offered by broadcasters, and relying on subsection 3(1) of the Broadcasting Act as the source of its jurisdiction, the CRTC proposed to create the VSR (Cogeco at paras. 1, 6–7, 21).
[23] The VSR sought to alleviate the financial challenges faced by broadcasters by granting them new and exclusive rights to control the exploitation of their communication signals or works by retransmission. The VSR allowed broadcasters to negotiate directly with BDUs for the retransmission of all of their signals. When broadcasters were unable to agree with a BDU on compensation for the distribution of their programming services, the VSR would have given broadcasters “deletion rights”, thereby preventing their retransmission by BDUs (Cogeco at paras. 7, 19, 69).
[24] In so doing, the VSR dealt directly with the subject matter of sections 21 and 31 of the Copyright Act. Subsection 21(1) of the Copyright Act grants a broadcaster an exclusive, limited copyright in the communication signals it broadcasts, with paragraph (c) giving it the sole right to authorize or prohibit the simultaneous retransmission by another broadcaster to the public. Since BDUs are not considered “broadcasters” under section 2 of the Copyright Act, a broadcaster’s exclusive copyright under section 21 does not include a right to prohibit a BDU from retransmitting its communication signals (Cogeco at paras. 48–50). This is critical, as the salient feature of the VSR was the right of broadcasters to prohibit BDUs from retransmitting their signals (Cogeco at paras. 19, 69).
[25] Importantly, paragraph 3(1)(f) of the Copyright Act protects the right of copyright holders to distribute their work by various means, including telecommunication. However, section 31 of the Copyright Act creates a “user right” (or, an exception to copyright infringement) that allows BDUs to retransmit copyright protected works carried in local and distant (over-the-air) signals without the authorization of the copyright holder. The copyright holders in those works do not have the right to block the retransmission by BDUs of local and distant signals carrying their works (Cogeco at paras. 56, 58). The decision in Cogeco pivots on the CRTC’s “creation of exclusive control rights over signals or programs” and the “right” of a broadcaster to require a BDU “to delete any program owned by the broadcaster” (Cogeco at paras. 7, 13, 31–33), notwithstanding the rights granted under sections 21 and 31 of the Copyright Act.
[26] The Supreme Court held that the VSR was not authorized by any provision in the Broadcasting Act, including paragraph 9(1)(h), and that it conflicted with the purposes of sections 21 and 31 of the Copyright Act. For the Court, Rothstein J. said:
[13] In my respectful opinion, for two reasons, the provisions of the Broadcasting Act, considered in their entire context, may not be interpreted as authorizing the CRTC to implement the proposed value for signal regime. First, a contextual reading of the provisions of the Broadcasting Act themselves reveals that they were not meant to authorize the CRTC to create exclusive rights for broadcasters to control the exploitation of their signals or works by retransmission. Second, the proposed regime would conflict with specific provisions enacted by Parliament in the Copyright Act.
(See also para. 68 of Cogeco)
[27] With respect to the Broadcasting Act, the Court ruled that the broad licensing and regulatory powers in sections 9 and 10 had to be read in light of the Broadcasting Act as a whole. It found that not all links, however tenuous, between a licensing requirement and a broadcasting policy objective described in subsection 3(1) were sufficient to establish jurisdiction in the CRTC (Cogeco at paras. 25, 28–29).
[28] In its reasoning, the Supreme Court observed that, in contrast to the Telecommunications Act, S.C. 1993, c. 38, which expressly granted the CRTC jurisdiction to ensure rates charged by Canadian carriers were just and reasonable, “none of the specific fields for regulation set out in s. 10(1) pertain to the … control [of] the direct economic relationship between the BDUs and the broadcasters [that is, programming undertakings]” (Cogeco at paras. 26, 29).
[29] This phrase is the foundation of Bell’s argument in this appeal. It submits that none of the specific fields in subsection 9(1) pertain to the control of the direct economic relationship between BDUs and PUs.
[30] Significantly, the passages from Cogeco reproduced in paragraphs 78 and 80 of Bell’s memorandum omit a key sentence from Cogeco (bolded below):
[30] However, the broadcasters submit that s. 10(1)(g), which enables the CRTC to make regulations “respecting the carriage of any foreign or other programming services”, and s. 9(1)(h), which empowers the CRTC to require a licensed BDU “to carry ... programming services specified by the Commission”, together with the broad wording of ss. 10(1)(k) and 9(1)(b)(i), empower the CRTC to “dictate the terms of the carriage relationship between broadcasters and BDUs” (R.F., at para. 65). Thus, the CRTC would, in their opinion, have jurisdiction to implement the proposed regime.
[31] I cannot agree. On their face, ss. 9(1)(h) and 10(1)(g) could, for example, allow the CRTC to require the BDUs to distribute to Canadians certain types of programs, arguably, because they are deemed to be important for the country’s cultural fabric. However, it is a far cry from concluding that, coupled with ss. 10(1)(k) and 9(1)(b)(i), they entitle the CRTC to create exclusive control rights for broadcasters.
[emphasis added]
[31] When read in its context, the Supreme Court’s statement “I cannot agree”, was in response to the last sentence in paragraph 30. Indeed, as is clear from the last sentence in paragraph 31 of the decision, and the point on which the case turned, was that paragraph 9(1)(h) did not “entitle the CRTC to create exclusive control rights”.
[32] A reading of Cogeco, keeping in mind the particular exclusive control right created by the VSR, reveals that it cannot be interpreted as widely as urged by Bell. The Supreme Court decided whether the CRTC could give PUs “an exclusive right to require deletion of the programming to which they hold exhibition rights from all signals transmitted by the BDU” (Cogeco at para. 19), not whether the CRTC can regulate any aspect of the economic relationship between PUs and BDUs. In relation to the latter, the Supreme Court merely stated that the fields of regulation in subsection 10(1) of the Broadcasting Act do not expressly authorize control of “the direct economic relationship between BDUs and the [PUs]” (Cogeco at para. 29). This statement has to be read and understood in light of what the VSR attempted to do and the question the Court was asked to decide.
[33] I do not understand the Supreme Court to have concluded that any and all exercises of authority under paragraph 9(1)(h), which may have an effect, direct or incidental, on PUs, would be an overreach. In the result, the extent to which paragraph 9(1)(h) authorizes the CRTC to impose terms and conditions on the carriage of “programming services” by BDUs, which will incidentally affect PUs, remains an open question. I therefore agree with the respondents that Cogeco is not dispositive of whether paragraph 9(1)(h) authorizes the CRTC to make the Code binding.
[34] For similar reasons, Cogeco is also not determinative of the copyright conflict issue in this appeal. The Supreme Court decided that the CRTC could not, by granting an exclusive control right, create a functional equivalent to a copyright for broadcasters (PUs as copyright owners) that was deliberately withheld from the Copyright Act. In section 21 of that Act, Parliament set out a carefully tailored regime relating to the specific kind of copyright with respect to communication signals and a specific type of user right with respect to works transmitted in over-the-air signals under section 31 of the Copyright Act. The VSR, however, created exclusive control rights “for broadcasters to control the exploitation of their [over-the-air] signals or works by retransmission” (Cogeco at paras. 13, 19, 31, 33, 69–70). The VSR, in effect, created new copyright, and conflicted with the purpose of sections 21 and 31 of the Copyright Act (Cogeco at paras. 13, 62–64, 67–70, 75–76). As I will explain, in contrast to the VSR, the Code does not create a “special right” akin to that contemplated by the VSR.
[35] In considering the effect of Cogeco, guidance can be found in the principle expressed in R. v. Henry, 2005 SCC 76 at para. 53, [2005] 3 S.C.R. 609 (Henry), citing Quinn v. Leathem, [1901] A.C. 495 (H.L.), “that a case is only an authority for what it actually decides”. Of particular resonance in this appeal is Binnie J.’s observation at paragraph 57 that:
All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative.
[36] Having concluded that Cogeco is not dispositive does not mean that it is of no consequence to this appeal. To the contrary, and consistent with Henry, the principles of statutory interpretation employed by the Supreme Court of Canada to read the Broadcasting Act are binding. I note, in particular, Rothstein J.’s observation at paragraph 23 of Cogeco that references to the Broadcasting Act’s policy objectives in subsection 3(1) are, without more, insufficient to ground jurisdiction. Of equal force and effect is the Court’s recognition that the property interests created by the Copyright Act cannot be constrained or diminished unless authorized by Parliament. This bears on the second branch of Bell’s argument which is founded on its copyright interests.
[37] In conclusion, whether, to borrow the language of Rothstein J., the 2015 Wholesale Code “is too great a stretch from the core purposes intended by Parliament” and from the power granted to the CRTC under the Broadcasting Act (Cogeco at para. 33) and engages in the direct economic relationship in a manner not contemplated by Parliament remains a live question, the answers to which lie in an understanding of the intention of Parliament in enacting paragraph 9(1)(h). Whether the Code diminishes or conflicts with Bell’s copyright interests also remains unsettled.
B. What is the standard of review?
[38] The parties do not agree on the standard of review. Bell contends that the question whether the Code is authorized by paragraph 9(1)(h) of the Broadcasting Act is jurisdictional and attracts a correctness standard of review. The respondents contend that the question is simply a matter of interpretation of a home statute by a tribunal and that the standard of review is reasonableness. Insofar as the conflict with the Copyright Act is concerned, Bell says that this too should be examined through a correctness lens, as that act is not the home statute of the CRTC.
[39] The parties pressed their positions with respect to standard of review. Given the jurisprudence it is easy to understand why that was so. From the respondents’ perspective, reasonableness triggers the presumption which requires the Court to defer to the CRTC’s interpretation of its home statute. This makes short work of the appeal. A favourable result is virtually assured by the near-irrefutable nature of that presumption. From the appellants’ perspective, correctness opens the door, at least a crack, to a closer analysis of the legislation and potentially a different result.
[40] Bell makes a compelling case that this is a jurisdictional question. Parliament made a clear and express choice to limit the CRTC’s power to make orders under paragraph 9(1)(h) to BDUs and the “programming services” which they carry. In Bell’s view, the Code derogates from Bell’s rights under the Copyright Act and circumvents Parliament’s clear language with respect to copyright.
[41] Jurisdictional questions are, however, difficult to identify. We know that a jurisdictional question is one the answer to which must be correct. But this sheds little light on the defining characteristics of a jurisdictional question. As observed by Brown J. in West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (West Fraser) “… the distinction between matters of statutory interpretation which implicate truly jurisdictional questions and those going solely to a statutory delegate’s application of its enabling statute will be, at best, elusive” (at para. 124). The definitional challenges around jurisdictional questions continue to vex courts, here and abroad.
[42] The distinction between jurisdictional and non-jurisdictional questions has been described by one judge of the High Court of Australia as “chimerical” (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah, [2001] HCA 22 at para. 212, 206 C.L.R. 57 (Ex parte Miah)), as a “vague and probably undefinable concept” by the New Zealand Court of Appeal (Bulk Gas Users Group v. Attorney General, [1983] NZLR 129 (C.A.) at 136) and as a “mirage” by the Supreme Court of the United States (City of Arlington, Texas v. Federal Communications Commission), 569 U.S. 290 (2013) at 5. Academics have been no less restrained in their criticism. Professor Daly notes “the weak theoretical basis for the category and the historical difficulty in applying the concept … in a clear and coherent manner” (Paul Daly, “Dunsmuir’s Flaws Exposed: Recent Decisions on Standard of Review” (2012) 58:2 McGill L.J. 483 at 492 (Daly, “Dunsmuir’s Flaws Exposed”).
[43] The Supreme Court of Canada, echoing the suggestion of the High Court of Australia that the concept be “interred” (Ex parte Miah at para. 212) (Kirby J.)), has hinted that it might “euthanize” this category of review (Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 at para. 41 (CHRC), citing Binnie J. in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 88, [2011] 3 S.C.R. 654 (Alberta Teachers)).
[44] That said, the Supreme Court has also confirmed the centrality of jurisdictional issues in ensuring that Parliamentary intention is respected. Even Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 30, [2008] 1 S.C.R. 190 (Dunsmuir) notes that “the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’s authority” (citing Thomas A. Cromwell, “Appellate Review: Policy and Pragmatism” in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice, V-1, p. V-12). As Cromwell J. noted in Alberta Teachers:
[94] I agree that the use of the terms “jurisdiction” and “vires” have often proved unhelpful to the standard of review analysis. This, however, should not distract us from the fundamental principles: as a matter of either constitutional law or legislative intent, a tribunal must be correct on certain issues in the sense that the courts and not the tribunal have the last word on what is “correct”. …
[45] There is also considerable thoughtful and compelling academic commentary in support of the concept (see e.g. T.R.S. Allan, “Human Rights and Judicial Review: A Critique of ‘Due Deference” (2006) 65:3 Cambridge L.J. 671). Professor Daly recognizes that the “category” of jurisdictional error could be removed “without undermining the availability of review for correctness …” (Daly, “Dunsmuir’s Flaws Exposed” at 492, n. 36). Put otherwise, the problem lies in the category, not with the principles which it embodies.
[46] Thus, as Brown J. observed in CHRC at paragraph 110, “[w]hile … one might ‘euthanize’ the category of true jurisdictional questions, it would not follow that such questions themselves will disappear”. This is because there is a symbiotic relationship between the rule of law and jurisdiction. Jurisdictional issues are a label given to a fundamental principle – that all exercises of power by public authorities must be authorized by law. Parliament is acutely cognizant of this principle. In granting rights of appeal or judicial review, Parliament recognizes the incompatibility of an unfettered discretion in tribunals to decide the scope of their jurisdiction with the fundamentals of the Westminster parliamentary democracy, and mandates the courts to demarcate the boundaries.
[47] The persistency of jurisdictional questions is telling. They have coursed through our jurisprudence for over half a century, playing an integral role in ensuring the rule of law remains more than mere words. Efforts to categorize jurisdiction may have floundered, but this should not be understood either as a problem with the principle or as a rationale for its elimination.
[48] As observed by Brown J. in CHRC, despite definitional challenges of jurisdictional questions, the underlying principle that tribunals must remain squarely within the limits of the mandate that Parliament (and not the tribunal itself) determined, cannot be erased: “[T]here will remain questions that tend more to the former, including matters which are still widely regarded as jurisdictional by lower courts” (CHRC at para. 111). The question as to the CRTC’s authority under the Broadcasting Act in this appeal is precisely of that nature. It is one that tends to the jurisdictional, so much so that there is only one reasonable interpretation.
[49] We do not, however, need to decide whether the question in this appeal is jurisdictional. The standard of review to be applied to orders made under paragraph 9(1)(h) has previously been determined by this Court as reasonableness (Bell Canada and Bell Media Inc. v. Attorney General of Canada, 2017 FCA 249 at para. 9, 154 C.P.R. (4th) 85 (NFL), leave to appeal to S.C.C. granted, 37896 (10 May 2018)). Stare decisis requires that it should be followed and applied here (Miller v. Canada (Attorney General) 2002 FCA 370, 220 D.L.R. (4th) 149).
[50] That said, reasonableness “is a deceptively simple omnibus term” (Alberta Teachers at para. 87 (per Binnie J.)) and, if it is to be applied, it must be given definition and content. The Court should be transparent about what it means when it conducts a reasonableness review, and identify the factors which shape the degree of scrutiny or intensity of review it intends to bring to the question. To that end, I begin with a few observations about reasonableness and deference.
[51] Reasonableness, in its conception, is a highly elastic concept. Notwithstanding rule of law considerations, it tolerates the proposition that different decision makers can reach contradictory interpretations and both be reasonable (McLean v. British Columbia (Securities Commission), 2013 SCC 67 at paras. 32-33, [2013] 3 S.C.R. 895 (McLean); CHRC at para. 52; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 at para. 17, [2016] 1 S.C.R. 770 (per Abella J. (Wilson), see also paras. 70-71 wherein McLachlin C.J.C., Karakatsanis, Wagner, Gascon, Cromwell JJ. concurred on this point)). The other end of the spectrum also contemplates circumstances where there can be only one reasonable interpretation, and “no degree of deference can justify [the] acceptance” of any other interpretation (McLean at para. 38).
[52] Reasonableness also applies, without differentiation, across a wide range of decisions made by a broad spectrum of decision makers: ad hoc arbitrators, quasi-judicial tribunals, permit and licensing authorities and large specialized standing quasi-judicial tribunals supported by professional staff, such as the CRTC, the National Energy Board and the Canadian Transportation Agency, for example. It also applies to ministers of the Crown and the Governor in Council, whether acting under prerogative or statute. Reasonableness also embraces, without distinction, entirely distinct functions and responsibilities. At one end of the continuum stand administrative and adjudicative decisions affecting the interests of a single party on a discrete set of facts. At the other end are highly discretionary, policy-infused decisions, such as those of the Governor in Council as to whether a certain matter is in the public interest. There are many points in between, depending on the legal and factual matrix.
[53] The existing administrative law framework, predicated as it is on categories, forces a choice between reasonableness or correctness review. It assumes that there is a bright line between jurisdictional questions and all other types of decisions. But the line between the two, if there is one, becomes blurred as the range of reasonable outcomes narrows. When it tapers to only one reasonable outcome, correctness and reasonableness review merge and become indistinguishable. This can arise in the context of near-jurisdictional issues (Wilson at para. 27) as well as in the context of specific exercises of discretion: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61.
[54] The challenges inherent with categorization and classification as an over-arching framework were identified as early as 2003. Writing prior to Dunsmuir, the Supreme Court observed that the standard of review should focus on “the polar star of legislative intent” based on “principled analysis rather than categories” (C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, para. 149, [2003] 1 SCR 539). More recently, in Canadian Copyright Licensing Agency (Access Copyright) v. Canada, 2018 FCA 58, Stratas J.A. observed:
[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.
[55] Stratas J.A. continued and concluded “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.”
[56] In sum, the focus of the standard of review analysis should be on discerning legislative intent according to received principles of interpretation – not on choosing categories and applying a priori presumptions. If, after considering the statute, a court concludes that the decision was not authorized by the legislation, it cannot stand. The label applied to the exercise – whether unreasonable or jurisdictional – is of no consequence.
[57] As manifested by the arguments in this appeal, the stark choice between reasonableness and correctness has repercussions for both the parties and the courts.
[58] First, as Binnie J. cautioned in Dunsmuir, threshold debates about standard of review lead to lengthy and arcane discussions, which have little to do with the merits of the case. This truism has given rise to the contemporary view that the focus of judicial review should be on answering whether the particular power or decision was authorized by law, not on debating the category of review (see generally the contributions listed in Paul Daly, “The Dunsmuir Decade/10 ans de Dunsmuir” (11 January 2018), online: Administrative Law Matters <http://www.administrativelawmatters.com/blog/2018/01/11/the-dunsmuir-decade10-ans-de-dunsmuir/>, (A Decade of Dunsmuir / Les 10 ans de Dunsmuir, forthcoming CJALP, Fall 2018).
[59] Binnie J. also urged that the courts move the parties away from arguing about tests and back to arguing about the substantive merits of their cases. In collapsing three standards of review into two, Binnie J. wrote “… the result of today’s decision may be like the bold innovations of a traffic engineer that in the end do no more than shift rush hour congestion from one road intersection to another without any overall saving to motorists in time or expense” (Dunsmuir at para. 139). This has proven prescient. As noted by Professor D.R. Knight, in Vigilance and Restraint in the Common Law of Judicial Review (New York: Cambridge University Press, 2018) at 195 (Knight, Vigilance and Restraint), “[j]udicial review doctrines which mostly concentrate on judicial methodology, without strongly elaborating norms for the administration, undermines its effectiveness. Again, the Canadian experience illustrates this criticism …”.
[60] The second consequence arising from the stark choice between “categories” is that the compelling points of law and legal policy encompassed by the standard of review that is rejected are jettisoned, in their entirety (see e.g. dissenting opinions in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 at para. 63,[2016] 2 S.C.R. 293 (per Côté, Brown JJ., McLachlin C.J.C., Moldaver J. concurring) (Edmonton East) and in West Fraser at paras. 52–111 (per Côté J.), at paras. 112–125 (per Brown J.); see also the reasons concurring in the result of Côté, Rowe JJ. in CHRC at paras. 73–81). The adverse policy consequences of the categorical approach are also detailed by L. Sossin in “Why the Standard of Review Matters (or at least why it should)!” (September 25, 2018): online Sossin’s Law Blog <http://sossinblog.osgoode.yorku.ca/2018/09/why-the-standard-of-review-matters-or-at-least-why-it-should/>.
[61] Reasonableness, nevertheless, grants reviewing judges “a broad discretion to choose from a variety of levels of scrutiny from the relatively intense to the not so intense” (Alberta Teachers at para. 87 (per Binnie J.)). In Canada (Attorney General) v. Canadian Human Rights Commission, 2013 FCA 75 at paras. 12–14, 444 N.R. 120, Stratas J.A. articulated a number of factors whi