Administrative Law – Standard of Review
In this case, the same 7-2 majority in Vavilov applied the new standard of review framework to an appeal of a Canadian Radio-television and Telecommunications Commission (“CRTC”) order (the “Order”). The CRTC had issued the Order which Order banned simultaneous ad substitution for the Super Bowl, thereby allowing Canadians to see the high-profile commercials that are part of the broadcast. The Federal Court of Appeal had dismissed appeals of the Order. The 7-2 majority of the Supreme Court of Canada (the “Supreme Court”) allowed the appeals, and quashed the Order.
The majority began by noting that the main question under appeal was whether the CRTC had the authority under section 9(1)(h) of the Broadcasting Act to issue the Order. While the Federal Court of Appeal had applied a standard of reasonableness, noting the need for deference to the CRTC in its interpretation of its home statute, following Vavilov, the Supreme Court majority found that a standard of correctness applied. The majority reached this conclusion by noting that there was a statutory appeal mechanism in the Broadcasting Act, meaning that appellate standards of review applied. Because the appeals raised questions that went directly to the CRTC’s statutory grant of power, the standard was correctness.
The majority found that applying a correctness standard, the Order was issued on the basis of an incorrect interpretation of the scope of authority under s. 9(1)(h). It noted that s. 9(1)(h) only authorizes the issuance of mandatory carriage orders – orders that require service providers to carry specific channels as part of their cable or satellite offerings – that include specified terms and conditions. Because the Order did not mandate that service providers distribute a channel that broadcasts the Super Bowl, but rather imposed a condition on those who already do, its issuance was not authorized by s. 9(1)(h) of the Broadcasting Act.