Concurrent Jurisdiction: How Broad is the Entertainment Software Association Exception?

In Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, the Supreme Court of Canada recognized a “rare” and “exceptional” new category of matters requiring correctness review, namely “when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute” (at para. 28).

Rowe J suggested that this category would only arise in respect of intellectual property matters (at para. 39). Yet in two decisions this week first-instance courts have recognized that the exception applies well outside the confines of intellectual property.

In Cob Roller Farms Ltd. v. 9072-3636 Québec Inc. (Écocert Canada), 2022 FC 1487, the applicant’s organic certification was withdrawn on the basis that it had made false or misleading statements within the meaning of s. 15 of the Safe Food for Canadians Act, SC 2012, c 24.

The interpretation of s. 15 was relevant to the disposition of the judicial review application. The decision was quashed because the decision-maker did not adequately explain itself: on any view the decision was unreasonable (at paras. 78-86).

But McHaffie J noted, in obiter, that there is concurrent jurisdiction over s.15, which ordinarily would require correctness review on the authority of Entertainment Software Association:

In the present case, administrative bodies, such as Écocert Canada, have first instance jurisdiction to interpret and apply section 15 of the Safe Food Act in circumstances relating to cancellation of an organic certification. However, courts may also have first instance jurisdiction to interpret and apply section 15 where, for example, a person is charged with an offence for contravening section 15, or the Minister seeks an injunction or forfeiture on this basis: Safe Food Act, ss 15, 33, 37, 39. An argument may therefore be made that SOCAN v ESA dictates that correctness is the appropriate standard on this issue. I need not decide this question, since I have concluded that Écocert Canada’s decisions cannot stand even if the deferential reasonableness standard is applied and even accepting its interpretation of section 15. I therefore did not seek further representations from the parties on the point, and simply raise this as a caveat in light of the intervening jurisprudence of the Supreme Court (at para. 9).

At issue in Fairgrieve v British Columbia Review Board, 2022 BCSC 1882 was the scope of the Board’s authority to make redactions to its reasons for disposition under the Criminal Code. The Board held it had no such authority as there was no explicit grant of power in this regard in the Criminal Code.

F sought judicial review.

One issue was whether the matter was within the scope of judicial review at all, as applications for prerogative relief under the Criminal Code are more circumscribed than applications for judicial review: see e.g. R. v. Awashish, 2018 SCC 45. Riley J held that the question of the scope of the Board’s authority to make redactions was jurisdictional, as that concept applies to Criminal Code prerogative relief applications (at para. 95).

On the issue of whether the Board had properly interpreted the scope of its authority, Riley J held that the correctness standard applied, again because of Entertainment Software Association. For one thing, there is general shared jurisdiction over the relevant Part of the Criminal Code

Under Part XX.1 of the Criminal Code, criminal courts and Review Boards are reposed with concurrent first instance jurisdiction over dispositions in respect of accused persons found not criminally responsible or unfit to stand trial. Pursuant to s. 672.45, where an accused is found not criminally responsible or unfit to stand trial, the court may on its own motion, or shall on the application of either the accused or the prosecutor, hold a disposition hearing. Where the court declines to exercise its jurisdiction under s. 672.45, then the Review Board is obliged under s. 672.47 to hold a disposition hearing. In other words, the Review Board must make a disposition where the court does not do so. Other parts of the statutory scheme also reflect that courts and Review Boards enjoy concurrent first instance jurisdiction over dispositions under Part XX.1. For example, the term “disposition” is defined in s. 672.1(1) of the Criminal Code to include “an order made by a court or a Review Board under s. 672.54”. Further, s. 672.54 sets out the range of dispositions that may be made by a “court or Review Board” (at para. 99).

Furthermore, the specific provision at issue here is also subject to concurrent jurisdiction:

The first issue as framed by the panel was whether it had “the power” to make redactions to its Disposition Reasons. In my view, this is indeed an issue over which courts and Review Boards enjoy concurrent first instance jurisdiction under Part XX.1 of the Criminal Code. Since the statute gives criminal courts and Review Boards concurrent statutory jurisdiction to conduct disposition hearings and render dispositions, it stands to reason that both courts and Review Boards must have the jurisdiction to determine their authority to restrict public access to their reasons for disposition. Accordingly, whether one characterizes the matter as a criminal or quasi-criminal application for prerogative relief under Part XXVI of the Criminal Code, or an application for judicial review in administrative law, the panel’s consideration of this point is reviewable on the standard of correctness (at para. 103).

Riley J went on to agree with F that the Board had interpreted the Criminal Code incorrectly (at para. 117), but ultimately found that the Board’s decision to refuse to make redactions was reasonable (at para. 137). This feature makes this case a neat example of segmentation, with correctness applying to the question of whether the Board could redact and reasonableness of whether the Board should have redacted on the facts before it.

In my note on Entertainment Software Association, I commented that “Just because the Court says the new category applies in “rare” circumstances does not mean counsel and lower courts will agree”. Here we have the exception applying to health and safety regulation and the Criminal Code, areas far removed from intellectual property.

These cases may simply be outliers, of course, but it certainly seems clear that the scope of the Entertainment Software Association exception is broader than the Supreme Court originally envisaged. Long-time readers may be forgiven for feeling a sense of déjà vu.

This content has been updated on November 4, 2022 at 20:57.