Case information

Administrative law — Judicial review — Standard of review — Whether Court of Appeal identified correct standard of review for redetermination decision of Copyright Board on judicial remand

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The applicant broadcasters are entitled, without prior authorization, to retransmit broadcast signals more than 32km from their source. In exchange, they must pay a per-subscriber royalty rate to the respondent copyright collectives, who administer the copyright for the source signals. Every four years, the Copyright Board conducts proceedings in which broadcasters and copyright collectives make submissions on new per-subscriber royalty rates. At the conclusion of those proceedings, the Board fixes the new rates in a Tariff.

In August 2019, the Board fixed rates for the 2014-2018 Tariff. The parties both sought judicial review of the Board’s decision. The Federal Court of Appeal held that the Board relied on outdated data to fix the per-subscriber rates and applied a profit margin discount that was unsupported by the evidence. It remanded the matter to the Board with a direction to redetermine the Tariff without these errors.

On redetermination, the Board corrected the errors identified by the Court of Appeal. However, it also made three further changes to its calculations to correct errors it discovered during the redetermination process. It held that it would not be appropriate to purposefully ignore apparent errors, and that doing so was not in conflict with the remand judgment of the Court of Appeal.

The Court of Appeal, on further judicial review, held that the Board exceeded its jurisdiction by adjusting the Tariff in ways not contemplated in the remand judgment. The Board’s interpretation of its own jurisdiction conferred by the Court of Appeal’s unambiguous judgment was neither correct nor reasonable. The Board was directed to calculate the Tariff in accordance with the earlier remand judgment and certify it.