Rogers Communications Inc., Rogers Wireless Partnership ... - Slaw

characterization ... of the holding in ATA [Alberta Teachers' Association v. Informationand Privacy Commissioner, SCC 2011] as meaning that the 'exceptions to thepresumption of home statute deference are … constitutional questions and questions oflaw of central importance to the legal system and outside the adjudicator’s specializedexpertise' ... ATA simply reinforced the direction in Dunsmuir [SCC 2008] that issues thatfall under the category of interpretation of the home statute or closely related statutesnormally attract a deferential standard of review ... My colleague’s approach would ineffect mean that the reasonableness standard applies to all interpretations of homestatutes. Yet, ATA and Dunsmuir allow for the exceptional other case to rebut thepresumption of reasonableness review for questions involving the interpretation of thehome statute" - See paragraph 16.Administrative Law - Topic 9102Boards and tribunals - Judicial review - Scope of review - The Supreme Court of Canada,per Rothstein, J., stated that "I wish to be clear that the statutory scheme under whichboth a tribunal and a court may decide the same legal question at first instance is quiteunlike the scheme under which the vast majority of judicial reviews arises. Concurrentjurisdiction at first instance seems to appear only under intellectual property statuteswhere Parliament has preserved dual jurisdiction between the tribunals and the courts.However, I leave the determination of the appropriate standard of review of a tribunaldecision under other intellectual property statutes for a case in which it arises. Nothing inthese reasons should be taken as departing from Dunsmuir and its progeny as to thepresumptively deferential approach to the review of questions of law decided by tribunalsinvolving their home statute or statutes closely connected to their function" - Seeparagraph 19.Administrative Law - Topic 9103Boards and tribunals - Judicial review - Scope of review - The Copyright Board (theFederal Court of Appeal agreeing), opined that streams of musical works over theInternet came within the exclusive right of copyright holders to communicate "to thepublic" by telecommunication (Copyright Act (s. 3(1)(f)) - Accordingly Tariffs could beestablished - Music service providers appealed - The Supreme Court of Canada discussedthe standard of review given that the court and the Copyright Board had concurrentjurisdiction at first instance in interpreting the Copyright Act - That concurrentjurisdiction rebutted the presumption of reasonablness review of the Board's decisions onquestions of law under its home statute - Therefore, the standard of correctness was theappropriate standard of review on questions of law arising on judicial review from theCopyright Board, such as the interpretation issue in this case - However, the Board'sapplication of the correct legal principles to the facts of a particular matter should betreated with deference - See paragraphs 10 to 20.Administrative Law - Topic 9103Boards and tribunals - Judicial review - Scope of review - The Supreme Court of Canada(majority) stated that it had to "... respectfully disagree with Abella J.’scharacterization ... of the holding in ATA [Alberta Teachers' Association v. Informationand Privacy Commissioner, SCC 2011] as meaning that the 'exceptions to the