OTTAWA – They say you can’t infer an outcome from the line of questioning and the tone of the questions. That goes for the Supreme Court as well as for CRTC Hearings.
But this has never stopped anyone from making predictions.
As reported yesterday, besides the Bell v. CRTC on the Super Bowl case and the Vavilov citizenship issue, what really seemed of interest to the Supreme Court justices today, which was made clear in their questions, is the appropriate standard of review that should apply when reviewing lower administrative tribunal decisions.
Tuesday, we heard the two sides in the Super Bowl case and depending on what the justices decide, whether it is correctness or reasonableness to become the new standard of review, then it will probably determine the outcome.
Correctness
Bell is basically arguing that the Legislation’s intent was not to allow the CRTC to use the paragraph 9(1)(h) of the Broadcasting Act for this specific purpose on a single show, the appeal should be granted and Bell wins.
Reasonableness
If it’s as the Attorney General of Canada argues, then the CRTC should have the latitude to use paragraph 9(1)(h) in a way that is not contrary to the Charter or section 2 of the Broadcasting Act: “This Act shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.”
Reasonableness is the current Standard of Review and the CRTC decision was upheld by the Federal Court of Appeal (FCA) where the courts give deference to administrative entities in interpreting and administering their “home statute.” That would mean that the CRTC decision stands – and that the CRTC Wholesale Code decision stands, maybe.
Tomorrow, the Court will hear the two sides in the Vavilov case where the FCA decided against giving deference to the Registrar in its administration of the Citizenship Act.
If the “correctness” side wins, it would mean that the courts would have more say in administrative law decisions.
Of course, this is not a black and white decision and the devil will be in the details on how the Justices will word the decision to have a framework that is rigorous while flexible.
From the tones of the questions, it is obvious that their discussion has already started between Justices, and some are quite passionate about it.
