OTTAWA – On the third day of a hearing ostensibly into the CRTC’s Super Bowl simsub decision and the Vavilov spy case, those two individual cases took an even lesser importance than in the prior days. The Justices are mostly interested in developing a framework that would help the Courts, not just the Supreme Court, should rule on issues of administrative law.
On Tuesday, we had heard of the Bell’s appeal of the CRTC Super Bowl decision. Bell had an hour (which is more than the 51.5 minutes of advertising it wishes to once again sell to Canadian clients during the Super Bowl) to present its arguments, including questions from the Justices, and the Attorney General of Canada – defending CRTC’s decision – also had an hour. Both, however, within their hour allotment were also expected to state their positions on how an expected Standard of Review should work. Without surprise, their positions reflected their cases and the impact on their cases.
On Wednesday, we heard from the Attorney General appealing the fact that the Federal Court of Appeal overturned the decision of the Citizenship Registrar, denying Alexander Vavilov citizenship, even though he was born on Canadian soil – to Russian spies. They were also expected, to state their views on the Standard of Review.
Then on Thursday, the Court heard form 15 groups and organisations which have an interest or would be impacted by expected changes to such a standard of review. These groups and organisations have predictable views tied to whom they represent. Groups representing immigrants, refugees and prisoners will argue that frontline administrative delegates should have limited latitude in interpreting the Law, while the Council of Canadian Administrative Tribunals favour more deference: a.k.a. let us do our work.
We saw a diversity of views but also a diversity of persons and organisations. While the CRTC is a sophisticated tribunal with elaborate rules of procedure and a long history of conducting itself in accordance to the tenets of administrative law and has the ability, by statute, to formulate policy, other organisations functioning within the purview of administrative law lack the Regulator’s rigor and discipline because of the nature of the cases they administer.
Finally, appeared the Amici Curiae, (Friends of the Court). These are selected and remunerated by the Court because of their demonstrated acumen and because they have no skin in this. Daniel Poitras is an law professor at McGill and Andrea Boctor is a practicing lawyer without clients in the field at hand. They are unimpeded in their judgement and will not be impacted by the outcome. Most importantly though, they are unafraid of questioning what everybody else takes for granted.
Their proposal had the benefit of thinking outside the box and if it doesn’t influence the outcome, it may influence how the justices to come at this. To demonstrate the complexities of this issue, the Amici disagreed on some points in their submission.
Over time, Dunsmuir (the chief legal precedent in play which we explained here) morphed into something different than its original determination, slipping towards more reasonableness and deference towards administrative bodies like the CRTC, they said.
While the decorum and the way people are dressed in the Court screams conservatism and lead us to therefore expect no revolution – which would be no deference or no implied legislative intent – it is an impression confirmed by keen observers of the Court who are already predicting how each of the judges will cast their “votes” based on their past decisions and the question they asked. The only unknown is Justice Martin, the newest member of the Court, who only asked two questions and has little track record in administrative law.
The changes enunciated in the decision will not likely impact how the CRTC will conduct its business – although it might mean that it will be expected to provide more explanations in new interpretation of their statutes. For example, with the Super Bowl decision, it seems to a lot of observers the CRTC was punishing Bell for reasons unknown in a way that seemed arbitrary, but not deemed unreasonable – so a more fulsome explanation of such decisions may be expected in the future.
So on February 3rd 2019, Canadian TV subscribers may still have access to the American Super Bowl feed and be able to watch American ads. That’s hardly a fundamental human right, to paraphrase Justice Brown, but Alexander Vavilov and his brother Timofei will still not know whether they can be Canadian citizens.
It’s not known when the court will hand down its decision.
