Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association

In Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association,[1] the Supreme Court of Canada (the “Supreme Court”) created a new category of correctness review for matters of concurrent first instance jurisdiction between courts and administrative bodies. This decision is notable because it shows that the courts are still willing to find exceptions to the reasonableness standard of review.

The Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov (“Vavilov”) recognized five categories of correctness review: (1) legislated standards of review; (2) statutory appeal mechanisms (on questions of law); (3) constitutional questions; (4) general questions of law or central importance to the legal system as a whole; and (5) questions relating to the jurisdictional boundaries between two or more administrative bodies.[2] In Vavilov, the Supreme Court signalled that it was reluctant to add to this list except under exceptional circumstances.[3]

Society of Composers provided such an exceptional circumstance. In this case, the Supreme Court found a sixth category of correctness for matters of concurrent first instance jurisdiction between the courts and administrative bodies for two reasons: (1) it accords with legislative intent; and (2) it promotes the rule of law.[4]

Legislative Intent

The Supreme Court cited Vavilov to establish that the presumption of reasonableness applies where the legislature has granted exclusive jurisdiction to an administrative decision maker.[5] This presumption is rebutted when legislation expressly includes the courts in the administrative scheme.[6] The Supreme Court reasoned that when legislation gives concurrent first instance jurisdiction to both an administrative body and the courts, the legislature expressly involves the courts.[7] This allowed the Court to infer that the legislature intended those matters to attract the appellate standard of review, which includes correctness on questions of law.[8]

Rule of Law

The Supreme Court cited Vavilov to establish that “the presumption of reasonableness must give way to considerations aimed at maintaining the rule of law, which requires that certain questions be answered consistently and definitively.”[9] In cases of concurrent first instance jurisdiction, the Supreme Court reasoned that application of a reasonableness standard of review could lead to different standards of review on appeal and conflicting interpretations between an administrative decision maker and the courts.[10] Although the Supreme Court recognized that Vavilov accepted a certain degree of inconsistency within decisions made by administrative bodies,[11] it did not accept any inconsistencies on questions of statutory interpretation by the courts.[12]

Although they concurred in the result, Justices Karakatsanis and Martin disagreed with the majority on the appropriate standard of review and would not have recognized a sixth category of correctness. They did not find sufficient legislative intent to rebut the presumption of reasonableness[13] and would hold that Vavilov’s robust reasonableness standard would uphold the rule of law.[14]

[1] 2022 SCC 30 [Society of Composers].

[2] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras 17 and 69.

[3] Ibid at para 70.

[4] Society of Composers, supra note 1 at para 28.

[5] Ibid at para 29.

[6] Ibid at para 30.

[7] Ibid at para 31.

[8] Ibid.

[9] Ibid at para 33.

[10] Ibid at paras 34-35.

[11] Ibid at para 36.

[12] Ibid at para 37.

[13] Ibid at para 131.

[14] Ibid at para 128.