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This week at the SCC

|Written By Elizabeth Raymer

A decade after its decision in Dunsmuir v. New Brunswick, the Supreme Court of Canada will again consider the standard of review in administrative law this week by way of a trilogy of appeals to be heard concurrently. The appellants were asked to address standard of review in their submissions, and have been permitted to submit longer filings than usual; more than 70 counsel (including amici curiae at the Supreme Court’s invitation) have reportedly made submissions.

Dec. 4-6 – Federal – Bell Canada, et al. v. Attorney General of Canada

Administrative law, standard of review: The CRTC issued an order excluding the Super Bowl from the simultaneous substitution regime to which it has been subject for many years under the Simultaneous Programming Service Deletion and Substitution Regulations. Under that regulatory regime, the Canadian broadcaster of the Super Bowl made requests to ensure that the Super Bowl was broadcast in Canada with Canadian commercials on both Canadian and American channels. The CRTC’s determination that simultaneous substitution for the Super Bowl is not in the public interest means that, as of 2017, Canadians watching the Super Bowl on Canadian stations see only Canadian commercials, while those watching it on American stations see only American commercials.

Read the appellate court decision here.

December 4-6 – Federal – National Football League, et al. v. Attorney General of Canada

Administrative law, intellectual property: Companion case to the above. The applicant, as copyright holder, had entered into an agreement with Bell Canada and Bell Media Inc. granting Bell an exclusive licence to broadcast the Super Bowl in Canada through to February 2020. Bell recovers the costs of the licence by selling to Canadian businesses advertisements can be inserted into the Super Bowl broadcast on both Canadian and American stations. The applicant and Bell challenged the jurisdiction of the CRTC to issue its Order for the Super Bowl that simultaneous substitution is not in the public interest and conflicts with Canadian broadcasting policy and regulations; targets a specific program, applies changes to the regulatory regime retrospectively to the detriment of vested rights and is contrary to the Copyright Act and Canada’s international trade obligations. The Federal Court of Appeal dismissed those appeals, for both the NFL and Bell.

Read the appellate court decision here.

December 4-6 – Federal – Minister of Citizenship and Immigration v. Vavilov

Administrative law, standard of review: The applicant, Alexander Vavilov, was born in Canada in 1994. His parents, who were then Canadian citizens, were undercover spies from Russia. In 2010, they were arrested in the U.S. and returned to Russia in a spy swap. In 2014, Canada’s Registrar of citizenship informed Vavilov that a certificate of Canadian citizenship issued to him in 2013 had been cancelled and that the Canadian government no longer recognized him as a Canadian citizen. The decision was based on a report of a citizenship analyst, which concluded that his parents were not lawfully Canadian citizens or permanent residents at the time of his birth, and they were, at that time, “employees or representatives of a foreign government” for the purposes of s. 3(2)(a) of the Citizenship Act.

The Federal Court dismissed Vavilov’s application for judicial review, ruling that s. 3(2)(a) targets representatives and employees in Canada of foreign governments, regardless of diplomatic or consular status. A majority of the Federal Court of Appeal allowed the appeal and quashed the decision of the Registrar as unreasonable. It concluded that given the text, context and purpose of the provision, s. 3(2)(a) targets only foreign government employees who benefit from diplomatic immunities or privileges.

Read the appellate court decision here.

Related news story:
Children born to Russian spies in Toronto should not be handed citizenship: Ottawa; National Post

On this week’s standard of review trilogy:

Related news story:
Marshall Rothstein casts an eye to Supreme Court docket, including standard of review; Canadian Lawyer Legal Feeds

Related bulletins:
Dicey’s Comet Returns — Will Administrative Law Skies Get Brighter?; Torys LLP

The Supreme Court of Canada’s Administrative Law Trilogy: What to Expect?; AdministrativeLawMatters.com

Why the Standard of Review Matters (or at least why it should)!; Sossin’s Law Blog (Osgoode Hall Law School)

Dissent On The Standard Of Review: The SCC Splits On True Questions Of Jurisdiction; Lenczner Slaght Royce Smith Griffin LLP

SCC to Revisit Standards of Review; Hull & Hull LLP

The Great Divide on Standard of Review in Canadian Administrative Law; ABlawg.ca (University of Calgary Faculty of Law)


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