Case comment: McLean v. British Columbia (Securities Commission), 2013 SCC 67

The Supreme Court’s decision in in McLean v. British Columbia (Securities Commission), 2013 SCC 67 (McLean) is intriguing for two reasons. First, the decision suggests a move away from the ‘categorical’ approach to the standard of review set down in Dunsmuir. It recognises expressly that the range of reasonable answers to a question of law may, in certain circumstances, be limited to a single “reasonable” answer. Second, the decision also appears to narrow, or at the very least clarify, the Court’s decision in Rogers concerning the standard of review in copyright cases. In fact, McLean could be read as going a little further and undermining the reasoning of the majority in Rogers.

A reaffirmation of Alberta Teachers and little more

The central issue in McLean was whether the B.C. Securities Commission’s interpretation of a limitation period provision of the Securities Act was reviewable on a standard of correctness or reasonableness. Ms McLean had entered into a settlement agreement with the Ontario Securities Commission that resulted in an Ontario order prohibiting her from trading in securities and acting as an officer and director of certain companies. Subsequently, the B.C. Securities Commission issued a reciprocal order. On judicial review, Ms McLean argued that the reciprocal order was made outside of the applicable six-year limitation period because the pertinent “event” was the original misconduct, which was more than six years earlier, and not the Ontario order. Moreover, the B.C. Securities Commission’s (implied) decision that the “event” was the Ontario order was a question of law, reviewable on a standard of correctness. The British Columbia Court of Appeal agreed with her on the issue of the standard of review.

Justice Moldaver, for the majority, held that the standard of review was reasonableness. He began by clarifying, albeit very quickly, the Court’s decision in Rogers. Ms McLean had relied on Rogers in arguing that a correctness standard was appropriate because there was concurrent jurisdiction between the B.C. Securities Commission and the provincial courts in applying the Securities Act. In what appears to be a narrowing of Rogers, Justice Moldaver held that the Rogers rule applied only where “the same legal question” is considered at first instances—not simply where there is concurrent jurisdiction.

The remainder of standard of review analysis is a strong reaffirmation of the Court’s approach in Alberta Teachers. Justice Moldaver makes clear that the two “exceptional categories” in which a correctness standard applies—true questions of vires and questions of law of central importance to the legal system—are truly exceptional.

With respect to true questions of vires, the Court expresses doubt that such questions constitute a separate category of questions of law, but does not make a definitive finding. (This is consistent with Justice Rothstein’s statement in Alberta Teachers that such questions are “without a clear definition” (para 42).)

However, despite its reluctance to find expressly that true questions of vires don’t really exist, the Court tips its hand. In a footnote, Justice Moldaver cites a recent U.S. Supreme Court decision in which that court held that “distinction[s] between ‘jurisdictional’ and ‘nonjurisdicitonal’ interpretations is a mirage” because “a separate category of ‘jurisdictional’ interpretations does not exist.” While the footnote is nothing more than obiter, the fact it is included is highly suggestive of where our Supreme Court is headed.

With respect to questions of central importance to the legal system, Justice Moldaver systematically dismissed three arguments made by Ms McLean. First, although “as a conceptual matter, [limitation periods] are generally of central importance” to the justice system, the interpretation of “this limitation period” was not (emphasis in original). Second, while a reasonableness standard allows for other securities commissions to arrive at different interpretations, such interpretations would concern different limitation periods and, therefore, there would be not concern about inconsistent interpretations. Finally, and “most significantly”, it was well within the B.C. Securities Commission’s expertise to interpret a provision within its home statute.

However, the most intriguing part of the decision comes a little later. At paragraph 38, Justice Moldaver acknowledges that, in certain circumstances, the range of reasonable interpretations may be limited to a single “reasonable” interpretation:

[38] It will not always be the case that a particular provision permits multiple reasonable interpretations. Where the ordinary tools of statutory interpretation lead to a single reasonable interpretation and the administrative decision maker adopts a different interpretation, its interpretation will necessarily be unreasonable.

Isn’t that a correctness standard? And isn’t this approach a little different from Dunsmuir and Khosa where the Court went out of its way to say that a reasonableness standard is a single standard?

A revisionist’s reading of Rogers

In Rogers, the Court split on the issue of what standard applies to the Copyright Board’s (Board) interpretation of the Copyright Act. Justice Rothstein for the majority held that the standard of review was correctness, primarily on the grounds that granting deference to the Board would lead to inconsistency. As the Copyright Act grants shared jurisdiction to the Board and the Federal Court, it cannot be that the Board’s interpretation of the Copyright Act would be granted deference on judicial review, while the court’s interpretation would be reviewable by an appellate court on a correctness standard.

In a strongly-worded dissent, Justice Abella held that post-Dunsmuir an administrative tribunal’s interpretation of its home statute “ought not to be disturbed unless the tribunal’s decision was not rationally supported.” As the Board is an expert tribunal, to which decision-making authority has been delegated, the presumption of a reasonableness standard is not rebutted.

Subsequently, lawyers have seized upon Rogers as creating a new exception to the presumption that a reasonableness standard applies; namely, a correctness standard applies where a statutory scheme grants an administrative tribunal and a court concurrent jurisdiction. In McLean, the appellant (Ms McLean) argued this point precisely, with no success.

A plain reading of McLean is that the Court is simply clarifying the Rogers rule. The presumption of reasonableness is only rebutted where a tribunal and a court are asked to consider the same “legal question”, as opposed to simply having concurrent jurisdiction. Indeed, this would explain why Justice Rothstein was part of the majority in McLean. It also serves to kill the new exception (of concurrent jurisdiction) to the presumption of reasonableness that Rogers appeared to have created.

But a closer reading of McLean suggests the Court went a little further and is moving away from majority’s reasoning in Rogers.

First, I am not sure how the Board’s “interpretation” of s. 3(1)(f) the Copyright Act is different from the Board’s determination of “the legal question” of whether internet streaming constitutes “communication to the public” as contemplated by s. 3(1)(f). An interpretation of a statute will necessarily result in the answer to a legal question. It seems to me that this is a distinction without a difference. Or to quote the US Supreme Court again: “a mirage”. It is perhaps an attempt, albeit a little stretched, to reconcile Rogers with the remainder of recent Supreme Court jurisprudence. It will be interesting to see if, and how, this distinction prevails.

Second, if a reasonableness standard can prescribe a single reasonable interpretation of the Copyright Act, then no exception to the presumption of reasonableness is necessary.

Finally, given the force with which the Court reaffirmed Alberta Teachers and the presumption of reasonableness, and underlined the exceptional nature of the exceptions to that presumption, it is difficult to see how the majority decision in Rogers will persist in the long run. The Copyright Act is the Copyright Board’s home statute, and the Copyright Board is an expert tribunal whose decisions take into account a number of factors. Deciding the same “legal questions” doesn’t quite seem exceptional enough, when considered in the light of McLean.

In the wake of McLean, I think it’s very likely that enterprising copyright litigators will continue to chip away at Rogers.