Judicial Review - SOR - 'Reasonableness' and Stratas JA. Entertainment Software Assoc. v. Society Composers
In Entertainment Software Assoc. v. Society Composers (Fed CA, 2020) the Federal Court of Appeal considered a judicial review application where the new s.2.4(1.1) 'making available' of the Copyright Act was at issue. This provision makes it a 'communication of a work' under the Act (for which a SOCAN tariff was payable) to "allow() a member of the public to have access to it from a place and at a time individually chosen by that member of the public". As much of public internet use of copyrighted material is of this nature, the case was quite significant.
Stratas JA engages in his own take and emphases on Vavilov, summarized at para 23 as that 'it really didn't make too much difference' to pre-Vavilov law, at least in the Federal Court system which he supervises as 'they were already there' - meaning they had adopted the Vavilov doctrine before Vavilov did it. Stratas JA is almost always an interesting and challenging read:
A. Standard of review
 Subsection 2.4(1.1) of the Copyright Act falls to be interpreted by both the Board and the courts. The Supreme Court has held that the standard of review for Board interpretations of such provisions is correctness: Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45,  2 S.C.R. 427; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35,  2 S.C.R. 283; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57,  3 S.C.R. 615. Whether these three authorities, SOCAN (2004), Rogers and C.B.C., still apply is very much open to question.
 Last year, the Supreme Court engaged in "“a recalibration of the governing approach”" to the standard of review of the substantive merits of administrative decision-making, throwing into doubt which "“past precedents”", even its own, "“continue to provide helpful guidance”": Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 at para. 143.
 Vavilov "“address[es] all of the situations in which a reviewing court should derogate from the presumption of reasonableness review”" and perform correctness review: Vavilov at para. 69. Vavilov identifies only five such situations: legislated standards of review, statutory appeal mechanisms, constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies. SOCAN (2004), Rogers and C.B.C. do not fit into these five. Thus, Vavilov casts a cloud over SOCAN (2004), Rogers and C.B.C.
 The Supreme Court did not "“definitively foreclose the possibility that another category could be recognized as requiring a derogation from the presumption of reasonableness review in a future case”" only because "“it would be unrealistic to declare that…every possible set of circumstances”" has been contemplated: Vavilov at para. 70. This darkens the cloud over SOCAN (2004), Rogers and C.B.C. They must have been in the Supreme Court’s contemplation because they are of recent vintage and were cited to it. Yet the Supreme Court offered no gesture to confirm them.
 However, some considerations lighten the cloud, if not remove it altogether. In discussing the exception of statutory appeal mechanisms in which the standard of review is correctness on points of law, the Supreme Court spoke of the importance of respecting Parliament’s "“institutional design choices”": Vavilov at paras. 24, 26, 36, and 46. Parliament’s decision in the Copyright Act to give jurisdiction to both the Board and the courts on questions of statutory interpretation may be an "“institutional design choice”" that deserves recognition through correctness review. On this view, SOCAN (2004), Rogers and C.B.C. remain good law.
 Further, Vavilov stands for consistency, coherence and certainty in the law of judicial review. SOCAN (2004), Rogers and C.B.C. do further consistency, coherence and certainty. Rogers, for example, explains how (at para. 14):
It would be inconsistent for the court to review a legal question on judicial review of a decision of the Board on a deferential standard and decide exactly the same legal question de novo if it arose in an infringement action in the court at first instance. It would be equally inconsistent if on appeal from a judicial review, the appeal court were to approach a legal question decided by the Board on a deferential standard, but adopt a correctness standard on an appeal from a decision of a court at first instance on the same legal question. We do not have the submissions of the parties on this point. Whether SOCAN (2004), Rogers and C.B.C. are still good law on the standard of review should be left for another day.
 For the purposes of these applications for judicial review, this Court will assume that the standard of review is the one most generous to the Board and those defending its decision, namely reasonableness.
 The parties argued these applications while Dunsmuir v. New Brunswick, 2008 SCC 9,  1 S.C.R. 190, not Vavilov, was the governing authority for reasonableness review. But that is of no consequence.
 For some reviewing courts, Vavilov wrought a significant change in how reasonableness review should be conducted. But in our Court, at least for the conducting of reasonableness review in a case like this, Vavilov hardly changed anything at all.
 In Vavilov, the Supreme Court effectively adopted this Court’s view that administrative decisions are easier or harder to set aside depending on certain contextual factors that liberate or constrain the decision-maker: Vavilov at paras. 88-90. No longer must this Court tip-toe around dicta in Supreme Court decisions like Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47,  2 S.C.R. 293 at para. 35 and Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29,  1 S.C.R. 770 at para. 73 that forbade any resort to context.
 In Vavilov, the Supreme Court accepted that, as a practical matter, some decisions are more likely to survive reasonableness review because they are relatively unconstrained. But other decisions may be less likely to survive because they are relatively more constrained. Our Court previously recognized this reality in a series of foundational cases: see, e.g., Canada (Attorney General) v. Abraham, 2012 FCA 266, 440 N.R. 201 at paras. 37-50; Canada (Attorney General) v. Canadian Human Rights Commission, 2013 FCA 75, 277 C.R.R. (2d) 233 at paras. 13-14; Canada (Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56,  2 F.C.R. 1006 at paras. 88-92; Delios v. Canada (Attorney General), 2015 FCA 117, 100 Admin. L.R. (5th) 301 at para. 26; and see Paul Daly, "“Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness”" (2016) 62:2 McGill L.J. 527.
 Vavilov also identifies categories of contextual factors: Vavilov at paras. 83, 103, 108-126, 129-135. As we shall now see, this Court previously identified and applied almost all of them.
 Administrative decision-makers applying fact-driven criteria of a non-legal or less-legal nature are relatively less constrained and so, as a practical matter, their decisions are harder to set aside under the reasonableness standard: Vavilov at paras. 108-110; and in this Court, see, e.g., Re:Sound v. Canadian Association of Broadcasters, 2017 FCA 138, 148 C.P.R. (4th) 91 at para. 49, Gitxaala Nation v. Canada, 2016 FCA 187,  4 F.C.R. 418 at para. 149, Canada (Attorney General) v. Boogaard, 2015 FCA 150, 474 N.R. 121 at paras. 46, 51-52, Paradis Honey Ltd. v. Canada, 2015 FCA 89, 382 D.L.R. (4th) 720 at para. 137, Delios at para. 21 and Farwaha at paras. 90-99.
 Public interest determinations based on wide considerations of policy and public interest, assessed on polycentric, subjective or indistinct criteria and shaped by the administrative decision-makers’ view of economics, cultural considerations and the broader public interest—decisions that are sometimes characterized as quintessentially executive in nature—are very much unconstrained: Vavilov at para. 110; and in this Court see, e.g., Gitxaala Nation (2016) at para. 150, Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79,  2 F.C.R. 573 at paras. 72-73 and Raincoast Conservation Foundation v. Canada (Attorney General), 2019 FCA 224 at paras. 18-19.
 Complex, multifaceted and sensitive weighings by administrative decision-makers of information, impressions and indications using criteria that may shift and be weighed differently from time to time depending upon changing and evolving circumstances, all other things being equal, are relatively unconstrained and are harder to set aside: Vavilov at paras. 129-132; and in this Court, see, e.g., Boogaard at paras. 47, 51-52 and Re:Sound at para. 50.
 Assessments legitimately drawn from the expertise or specialization of administrative decision-makers, all other things being equal, similarly may be unconstrained and may be harder to set aside: Vavilov at paras. 92-93, 119; and in this Court, see, e.g., Re:Sound at para. 48 and Canada (Attorney General) v. Heffel Gallery Limited, 2019 FCA 82,  3 F.C.R. 81 at paras. 36-37.
 Where administrative decision-makers act under broad statutory wording that is capable of an array of meanings, they are relatively less constrained in the statutory interpretations they reach, all other things being equal: Vavilov at para. 110; and in this Court, see, e.g., Heffel, Boogaard at para. 42, Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245,  4 F.C.R. 75 at para. 69 and Canadian National Railway Company v. Richardson International Limited, 2015 FCA 180, 476 N.R. 83 at para. 30.
 Similarly, administrative decision-makers are relatively less constrained by provisions that vest them with a broad scope of discretion: Vavilov at para. 108; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2,  1 S.C.R. 5; Katz Group Canada Inc. v. Ontario (Health and Long Term Care), 2013 SCC 64,  3 S.C.R. 810; and in this Court, see, e.g., Heffel and Forest Ethics.
 On the other hand, administrative decision-makers that are constrained by specifically worded statutory provisions or settled decisions of the courts may find their decisions set aside if they ignore these constraints: see Vavilov at paras. 108-113; and in this Court, see, e.g., Abraham at paras. 37-50, Canadian Human Rights Commission at para. 14, Farwaha at paras. 93-97 and Emerson Milling at para. 70.
 Administrative decisions more akin to the legal determinations courts make, governed by legal authorities, not policy, can be relatively constrained: Vavilov at paras. 108-100; and in this Court, see, e.g., Canada v. Kabul Farms Inc., 2016 FCA 143, 13 Admin. L.R. (6th) 11 at paras. 24-25, Walchuk v. Canada (Justice), 2015 FCA 85, 469 N.R. 360 and Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 194,  3 F.C.R. 344.
 Specific methodologies and strict language set out in statutes can be like recipes that must be followed. They too can constrain and, if they are not respected, reversal can result: Vavilov at paras. 108-110; and in this Court, see, e.g., Canada (Attorney General) v. Almon Equipment Limited, 2010 FCA 193,  4 F.C.R. 203, Sharif v. Canada (Attorney General), 2018 FCA 205, 50 C.R. (7th) 1 at para. 34 and Heffel at para. 34.
 As well, decisions of great significance to the individual call for administrative decision-makers to supply more justification and explanation: Vavilov at paras. 133-135; and in this Court, see, e.g., Farwaha at paras. 91-92, Boogaard at para. 49, Walchuk at para. 33, Sharif at para. 11, Erasmo v. Canada (Attorney General), 2015 FCA 129, 473 N.R. 245 and Kabul Farms at paras. 24-26.
 The parties argued their cases under Dunsmuir but mindful throughout of this Court’s jurisprudence. Therefore, it was not necessary to invite them to provide further submissions concerning Vavilov. The reasons that follow cite primarily to Vavilov. But if Vavilov did not exist, these same reasons would have been given, with appropriate citation to the existing jurisprudence of this Court.
 The applications for judicial review before this Court challenge the Board’s interpretation of subsection 2.4(1.1). It is apposite to set out what reviewing courts should expect from administrative decision-makers when they interpret statutory provisions, as this is one of the ways the Board veered off course.
 For a while now, this Court has held that administrative decision-makers interpreting legislative provisions must consider the text, context and purpose of the provisions in order to arrive at the authentic meaning of the provisions: see Hillier v. Canada (Attorney General), 2019 FCA 44, 431 D.L.R. (4th) 556 at paras. 18-33, Sharif at paras. 18-29 and Schmidt v. Canada (Attorney General), 2018 FCA 55,  2 F.C.R. 376 at paras. 24-32, all of which follow the leading decisions of the Supreme Court in this area such as Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC),  1 S.C.R. 27, 154 D.L.R. (4th) 193, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42,  2 S.C.R. 559 and Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54,  2 S.C.R. 601 at para. 10. This Court has also held that administrative decision-makers must interpret legislative provisions in a non-result-oriented manner, refraining from pursuing policy preferences alien to the governing legislation: see Hillier, Sharif and Schmidt; see also Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252,  4 F.C.R. 174 at paras. 41-52 and Canada v. Cheema, 2018 FCA 45,  4 F.C.R. 328 at paras. 77-80.
 The empowering legislation of some administrative decision-makers gives them a policy-making or policy-applying role and some have expertise and specialization. These features may make them well-equipped to discern and appreciate the policy genuinely behind particular legislation. But it is not for them—or the courts for that matter—to amend that legislation. Absent specific and proper delegation of the power to legislate, making and changing legislation remains the exclusive preserve of those we elect: Williams at para. 49; Sharif at para. 51; Atlas Tube Canada ULC v. Canada (National Revenue), 2019 FCA 120 at paras. 4-5. Administrative decision-makers, like courts, are limited to discerning the authentic meaning of legislation and applying that meaning faithfully—not ignoring or distorting that meaning to get a result in a particular case or to achieve whatever they imagine is best or right.
 Vavilov is now the most recent word on this from the Supreme Court. In effect, it reiterates and ratifies the foregoing principles set out by this Court without modification, emphasizing that legislative intent "“can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context”": at para. 118.
 An administrative decision-maker that pays mere lip service to text, context and purpose rather than conducting a genuine analysis may well have its legislative interpretation quashed. The same fate will befall an analysis that is expedient, result-oriented or skewed to advance a policy extraneous to the legislation. In Vavilov, the Supreme Court put it this way (at paras. 120-121):
... the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutory interpretation apply equally when an administrative decision maker interprets a provision. Where, for example, the words used are “precise and unequivocal”, their ordinary meaning will usually play a more significant role in the interpretive exercise: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54,  2 S.C.R. 601, at para. 10. Where the meaning of a statutory provision is disputed in administrative proceedings, the decision maker must demonstrate in its reasons that it was alive to these essential elements.(For other recent decisions of the Supreme Court on the need for those interpreting legislation to avoid expedient, result-oriented approaches see TELUS Communications Inc. v. Wellman, 2019 SCC 19, 433 D.L.R. (4th) 1 and R. v. Rafilovich, 2019 SCC 51, 442 D.L.R. (4th) 539; and see also Mark Mancini, "“The ‘Return’ of ‘Textualism’ at the SCC[?]”" (9 April 2019), online (blog): Double Aspect ).
The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an interpretation it knows to be inferior — albeit plausible — merely because the interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to “reverse-engineer” a desired outcome.
 In Vavilov (at para. 124), the Supreme Court instructs us that reviewing courts conducting reasonableness review are not to "“perform a de novo analysis or to determine the ‘correct’ interpretation of a disputed provision”"; that would be insufficiently deferential correctness review, not reasonableness review. Similarly, the reviewing court should not conduct its own analysis and then measure the administrative interpretation against it. That would be "“disguised correctness”". See Vavilov at para. 116; in this Court, see, e.g., Delios at para. 28, Heffel at para. 50, Schmidt at para. 39 and Hillier at para. 14.
 Not every failure to examine a pertinent aspect of text, context or purpose will result in unreasonableness. But if "“it is clear that the administrative decision maker may well…have arrived at a different result”" had it considered "“a key element of a statutory provision’s text, context or purpose”", its "“failure to consider that element would be indefensible, and unreasonable in the circumstances”": Vavilov at para. 122. Thus, there are cases where the administrative decision-maker’s interpretation is impossible to sustain. Overall, the critical question is "“whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker”": ibid.
 When engaging in reasonableness review, courts are entitled to insist that administrative decision-makers explain their reasoning and justify their conclusions on issues of legislative interpretation: Vavilov at paras. 109, 116; see also Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, 441 D.L.R. (4th) 269 at para. 29. Insistence on explanation and justification ensures that the administrative decision-maker has "“meaningfully grapple[d] with key issues or central arguments raised by the parties”" and "“was actually alert and sensitive to the matter before it”": Vavilov at para. 128; in this Court, pre-Vavilov, see D'Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167, Yantzi v. Canada (Attorney General), 2014 FCA 193 at para. 4 and Bonnybrook Park Industrial Development Co. Ltd. v. Canada (National Revenue), 2018 FCA 136, 44 Admin. L.R. (6th) 71 at paras. 87-94. Where reasons read in light of the record "“contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis”", the court should not "“ordinarily…fashion its own reasons in order to buttress the administrative decision”": Vavilov at para. 96.
 It is unnecessary to consider the standard of review in much more detail in this case. For the reasons set out below, the decision of the Board cannot stand.
 Even under the standard of review of reasonableness, the Board was heavily constrained in what it could acceptably do by:
. the text, context and purpose of subsection 2.4(1.1) and the accepted methodology for considering these elements (see Vavilov at paras. 120-121 and pre-Vavilov authorities, above); In its interpretation of subsection 2.4(1.1), the Board offended these constraints and reached an unreasonable decision.
. case law decided in this area such as Entertainment Software Association and Rogers Communications Inc. concerning the meaning of a "“communication to the public by telecommunication”" (Vavilov at paras. 111-112 and pre-Vavilov authorities, above);
. case law concerning the interrelationship between domestic law and international law and the general primacy of the former over the latter (ibid. at paras. 111-114 and pre-Vavilov authorities, above).