The Supreme Court of Canada has ruled that a man, born in Canada, to parents who were undercover Russian spies, is a Canadian citizen.
This decision, and two others, including a finding that the CRTC does not have the power to require US Super Bowl ads to be shown in Canada, formed the basis of an effort to clarify how courts should deal with the review of administrative decisions.
There are two standards of review when courts are asked to review administrative decisions. These standards are “reasonableness” and “correctness.”
The usual standard of review by a court will be whether a decision was reasonable. This is what was applied in the case of the child of the Russian spies. A decision will be reasonable if it is logical and makes sense in light of the law and facts. In that case, the Supreme Court of Canada concluded that it was not reasonable to deny the child of the Russian spies Canadian citizenship, given the presumption that someone born in Canada is a citizen, and the wording and history of the exceptions to this.
The other standard of review is whether a decision was correct. This standard of review will apply in circumstances including where there is an issue about the legal authority to make a decision at all. That was the case with the CRTC decision: The Supreme Court of Canada concluded that the CRTC lacked the legal authority to require US Super Bowl ads to be shown in Canada. This wasn’t simply a matter of whether this was a reasonable decision to make.
Also discussed on the show was a case involving a British Columbia class action against Ticketmaster, concerning whether Ticketmaster was unlawfully facilitating the automated purchase, and resale, of tickets on a website that is owned by Ticketmaster: StubHub.
The claim alleges breaches of the Business Practices and Consumer Protection Act, as well as the Competition Act.
Ticketmaster provides software, called TradeDesk, which assists with organizing and reselling tickets.
The court decision denied an application by Ticketmaster to stop the British Columbia class action because similar cases were proceeding in Saskatchewan, Ontario, and Quebec.
Finally, the considerations for a judge when deciding on the period of parole ineligibility, following a second-degree murder conviction, are discussed.
Legally Speaking is live on CFAX 1070, Thursdays at 10:30 am.
An automated transcript of the show:
Adam Stirling [00:00:00] Michael Mulligan, sorry about that little bit of noise in the background here, we’ve got people coming in because they’re giving us toys for Toy Mountain. Good morning.
Michael T. Mulligan [00:00:06] Good morning. I must say, those are happy noises in the background. There’s actually a mountain of toys here. It’s great. People are coming in continuously and contributing to it. So, I can’t imagine a happier background noise.
Adam Stirling [00:00:17] All right. So, if our audience hears anything from time to time throughout our broadcast, that’s all that’s happening. They don’t need to worry about anything that may or may not be happening. Some people are yelling and cheering and stuff like that. And so anyway, now that our audience is aware, do want to start off with a little bit of breaking news that our newsroom has been covering right now. We have a sentence. We now know the length after the trial of Andrew Berry. I’m seeing here a headline, Sentenced to Life, No Parole for 22 years. How does this all fit together?
Michael T. Mulligan [00:00:48] Well, I mean, it’s an end to this stage of things and the end of a very sad saga for the community, of course. The decision that the judge had to make was a difficult one. The sentence, of course, is automatically life in prison. There was no discretion in that regard. But she had to make a decision about what length of time he would need to wait before he would be permitted to even ask to be released on parole. That was set at 22 years. The possible range of parole ineligibility was between 10 years and 25 years, and she selected 22. The other important thing to remember about that is that a parole ineligibility period does not mean that you are released after 22 years. All that means is that after that ineligibility period, you can ask to be released. It’s simply the period of time you need to wait before you can make the request. And of course, there are some circumstances where a person never does get released. So, I think that’s important to remember. Another thing, which is I think important to reflect upon is the sentencing process. Now, in a murder trial, there was, of course, a request for the jury to optionally make a recommendation, nonbinding one in terms of the length of parole ineligibility. And then we also had this week a number of victim impact statements put before the court to form part of the sentencing process. I think it’s worth touching upon what those are for and how a judge is to make use of them. The sentencing process is not a three-way process between the victims of crime, the crown and the accused. The purpose of the victim impact statements is to inform the judge as to the harm caused to the victim so that the judge can take that into account when determining what the appropriate sentence would be. But that process doesn’t involve, for example, individuals indicating what they think the sentence should be. The purpose of what went on was to let the judge know what impact the offence had on the people in the community. And so, the judge could take that into account when making her decision today about parole ineligibility.
Adam Stirling [00:03:10] I know there is a reference here made to the fact that these sentences will be concurrent, I would assume as opposed to consecutive. I was under the impression sentences are nearly always concurrent here in Canada as opposed to the Americans where we hear, you know, a hundred and fifty years for this person because they did this, this, this, this and this, and it all added together. How does that work?
Michael T. Mulligan [00:03:28] Well, for most sentences, the default position is that sentences would run concurrently, at the same time. The sentence, of course, of life in prison, which is the mandatory sentence required for first- or second-degree murder, you can’t make that consecutive to anything, of course.
Adam Stirling [00:03:45] I suppose you can’t its life. Oh, yes. Yeah, that’s it. All right. Fair enough.
Michael T. Mulligan [00:03:47] That’s all you’ve got, is that one life there was, in fact, however, a change a few years ago now, which would permit a judge to impose consecutive parole ineligibility periods in some cases. That wasn’t asked for and was not done here, but that would permit a longer parole ineligibility period if those were to run consecutive to each other. The challenge with that, of course, is to some extent trying to predict how the future dangerousness or risk that somebody is going to pose 25 years down the road. We need to bear in mind, of course, that we have to presume that the national parole board is going to do its job. They’re not going to release somebody into the community who poses a danger, that’s their principal duty. And so, to a large extent, I think we need to rely upon the parole board to do its job. And, of course, they’re going to be in a better position to assess somebody 22 or 25 years, whatever it might be down the road. That’s going to be an easier process than a judge trying to think ahead about, you know, what’s this person likely to be like 25 years from now. That’s a very challenging thing to do. So, for sentences other than life in prison, a judge does have discretion in Canada to impose consecutive sentences, but a judge would always need to bear in mind the concept of what’s called totality in the sentence. So for example, if you had somebody who robbed a bank and then drove dangerously driving away from the bank and also didn’t have a permit for their gun and also had some drugs in their pocket, if you simply figured out what the sentence might be for each of those individual offences and added them all up, you might end up with an aggregate sentence that would be, you know, 80 years or something. Well, that’s just more than what ought to be imposed for that activity, which was all really one unlawful transaction. And so, a judge always has to be alive to that concept of totality when deciding what an appropriate overall sentence would be.
Adam Stirling [00:05:53] Interesting. Thank you for that. Then guidance in how all this fits the other, Michael Mulligan. a couple of other interesting stories that we have on the docket today. You’ve helped us out with standards of review, with administrative law in the past, the idea that a court’s decision has weight. It is not like a slot machine where one may pull the slot machine until one receives the outcome that they desire. That’s not what appeals or for this, not what the Court of Appeal is for is not what the Supreme Court of Canada is for. So being able to overturn a finding of a judge at any stage at the system has to have certain standards met. I’ve heard reasonableness and correctness. What does it mean?
Michael T. Mulligan [00:06:29] Sure. That’s an excellent question that courts have actually struggled with. The Supreme Court of Canada this morning issued a decision in a trio of cases that try to provide some clarity for that question, for cases involving judicial review. And a judicial review would be where a courts called upon to review a decision made by an administrative body or tribunal.
Adam Stirling [00:06:54] Okay.
Michael T. Mulligan [00:06:54] Like most decisions that affect people aren’t made by judges. They’re made by sort of other people in government, like you go and apply for a building permit or you asked for a driver’s licence or, you know, somebody decides whether to issue your passport or not. Whatever it might be. And those decisions are all ultimately subject to that concept of a judicial review. And that’s an important thing from the perspective of ensuring sort of the rule of law. Make sure people are treated in a consistent and fair fashion.
Adam Stirling [00:07:21] Yes.
Michael T. Mulligan [00:07:21] But there’s been over the years the legal debate about, you know, on what basis should that be done? And you don’t want to have a circumstance where a judge is trying to second guess every decision about whether you should get a driver’s licence or what about that passport? The courts would be utterly clogged. And for many of those decisions, the administrative decision-maker is no doubt in a better position to make the decision. If all you do is, you know, conduct driving exams, you’re probably in a better position to sort out, should this person be driving, than some Supreme Court judge six months from now trying to figure out what’s to be made of your driving score.
Adam Stirling [00:07:57] All right. You see, the judge instructed counsel to provide 1, yes1 book, on driving instructors by this date at this time to review. OK, I can see that.
Michael T. Mulligan [00:08:05] So there is an effort to use some restraint and the Supreme Court has articulated that in various ways over the years. The basic approach that a judge is to use now is to apply either a standard of reasonableness or to say or a standard of correctness. And one of the complicating things is for courts to decide, well, when do you apply the standard? You’ve got to come to the right decision versus when do you just have to make a reasonable decision? Right. So, let’s take the example of, you know, should somebody get a passport? All right. You the Supreme Court of Canada’s tried to make clear that the starting point should be whether the decision was a reasonable one, which means there is a range of possible decisions and all of those sorts of cases. Should somebody get a passport? Should they be issued their driver’s licence? And a judge, when doing a review of those decisions, should not be starting, but to ask themselves would I, the judge, have given this person a driver’s licence or with either judge have issued them a passport. They need to presumptively in the Supreme Court has tried to clarify this morning, start from the proposition that you just ask: was that decision reasonable? Not what I have come to the same decision, but was that within the realm of reasonable thing? Was it logical? Was it consistent with the facts before the person? You know, that sort of thing. And that higher standard of being correct should be reserved for issues involving things like did the decision-maker have jurisdiction to make the decision at all, or was the decision involving some general principle of law that would affect things more broadly? And so, the general approach the Supreme Court of Canada tried to make clear is judges should ask themselves, is a decision reasonable? And the three cases they came out with today have some interesting fact patterns and a couple of them sort of illustrate how you might pick one of those things over the other. One of the cases, for example, involved a young man who was born in 1994 in Canada, and then in 2010, his parents who had moved to the United States were found out to be Russian spies. They were deported to Russia as part of a spy swap. And then this young man who had no idea that his parents were Russian spies applied to renew his passport. And some junior person at the passport office originally said, well, you need a birth certificate. We got that. And then said, that wasn’t good enough. You need to go get some proof of Canadian citizenship. He got that. And then he was still told no. Pursuant to this section that allows it excludes citizenship being given to people who are, this is the language: a diplomatic or consular official or other representatives, employee or employee in Canada of a foreign government. The idea would be, let’s say you’re the diplomat from Switzerland and you have a child while you’re here. Unlike the starting point, which would be, hey, you’re born in Canada, you would presumptively be Swiss, right? You were here. You’d do your parents or diplomats. That’s where you’d become a citizen. So, they decide the issue was. Well, look, these people were spies, they didn’t enjoy diplomatic immunity and this person didn’t even know his parents were spies. He just thought he was Canadian, born here, went to school here. But nonetheless, he was denied this passport. And so eventually this made all the way to the Supreme Court of Canada as part of this trio of cases today. And the Supreme Court of Canada indicated that look, this is the kind of decision which should be assessed on the standard of reasonableness. Right. It’s sort of an example of that.
Adam Stirling [00:11:33] So just to understand a layperson perspective, two people might come to different decisions, yet both of those decisions would be within the one or the realm of reason and therefore not over tunable down that standard.
Michael T. Mulligan [00:11:44] That’s right.
Adam Stirling [00:11:44] All right. OK.
Michael T. Mulligan [00:11:45] Now, on this particular case, for the fellow who is the son of the Russian spies, the Supreme Court of Canada said, look, the proper approach is reasonableness. You know, you could come to different decisions here. However, on the facts of this case, the junior person at the passport office didn’t take into account previous cases, decisions in court, the debates and the debate surrounding this legislation. And this decision was simply unreasonable.
Adam Stirling [00:12:11] Okay.
Michael T. Mulligan [00:12:11] And what was intended here could not possibly include that at the other end of the continuum was one that would also affect people. It’s…. It involves Bell Canada. And this was the case that caused people to be able to see all of the TV commercials from the Super Bowl last year. And that was an administrative decision by the CRTC that concluded that the network had to broadcast the entirety of the Super Bowl, including the commercials. Bell Canada appealed that decision by way of a judicial review. And ultimately, this was an example the Supreme Court of Canada used of a circumstance where the real issue was, did this party have the power to regulate that sort of thing at all? Not, is that a reasonable decision or not.
Adam Stirling [00:13:00] Okay.
Michael T. Mulligan [00:13:00] But it’s like, do you even have the power to decide whether the broadcaster has to broadcast the Super Bowl commercials?
Adam Stirling [00:13:06] Mm hmm.
Michael T. Mulligan [00:13:07] And so that was an example the Supreme Court of Canada used today, as an example of a decision that has to meet the standard of being correct, not just reasonable. You can’t just look at your legislation and say, look, I can reasonably do something here that really not covered by the legislation. Boy, that seems like a reasonable thing to do. That would be an example of where you actually have to be right about whether you’ve got the authority to do something at all. And so that was an example they gave today of where and when a court’s reviewing that they can review it from the point of view of, not just, could you come to the conclusion that you’re allowed to regulate what commercials have to be on the Super Bowl, but do you have the authority to do that at all? And so, the short of it is the Supreme Court of Canada found that the CRTC did not have the power to decide whether the commercials ought to run with the Super Bowl. And so next year, I suspect we may have the language, languages, simultaneous substitution of the commercials with Canadian commercials running instead.
Adam Stirling [00:14:03] All right. So, there we go. Standards of review. And we didn’t even have to get into Dunsmuir. That’s I’m wiping the sweat off my bra. All right. Quick break. We’re back in just a moment. Legally speaking continues on CFAX 1070.
Adam Stirling [00:14:14] We continue legally speaking with Michael Mulligan as we take a look at the interesting news stories of the week involving legal issues. A Ticketmaster, Michael Mulligan unsuccessful, I’m reading here, trying to stop a class action from proceeding. Set this one up for us.
Michael T. Mulligan [00:14:29] Yeah, this was a decision that just came out. It’s a BC case and it’s a case which is intended to be a class action, suing Ticketmaster on a number of theories, including alleged breaches of the Competition Act and the Business Practices Consumer Protection Act. That’s a BC statute. And the essence of it is that Ticketmaster apparently also produces a piece of software called Trade Desk. What is trade desk? Well, it all starts with the sort of the terms on the Ticketmaster site when you go to buy a ticket. Now the Ticketmaster site, it talks about things like all British Columbia residents. It speaks about the idea that you’re not allowed to use ticket bots or other things to try to purchase a whole bunch of tickets to then scalp at a higher price. Trying to suggest that the process of buying tickets on Ticketmaster would be fair for everyone. Right. Well, Ticketmaster also makes the software called Trade Desk, which they then sell to people who are ticket brokers. And Trade Desk apparently involves what’s described as inventory management for people who have a large number of tickets they wish to buy and sell.
Adam Stirling [00:15:47] Hmm mmm.
Michael T. Mulligan [00:15:47] And one of the functions of trade desk apparently includes the capacity to put in like multiple, hundreds of Ticketmaster accounts, such that even if one account is only allowed to buy, you know, six or eight tickets for that U2 concert or whatever it might be. You could with the assistance of Trade Desk, if you have a whole bunch of different accounts to buy tickets, it would help you automate the process of buying all these tickets and then organizing your hundreds of tickets so that you could then list them on the site, which is owned by Ticketmaster, to resell them.
Adam Stirling [00:16:21] So it’s created de facto bot.
Michael T. Mulligan [00:16:23] Yeah, it would mean I don’t know that it’s the bot, but it would help you manage your whole pile of tickets. And so, the I guess the complaint at its heart would be, hey, look, you’re running this site saying that everyone’s got a fair chance to buy tickets. Then you also own the resale site and you’re also selling this software to help people manage their giant pile of tickets which they wish to resell. And the suggestion there is that that is sort of in a broad sense. Hey, that’s not fair. But the hey, that’s not fair is articulated as being a breach of these things like the Competition Act or the BC Practices and Consumer Protection Act. So that’s the background of it. And what’s happened is that there are several class actions in different provinces, all dealing with Ticketmaster, there’s one Saskatchewan, Quebec, Ontario and BC. And like I think the practice is developed with class actions; companies who are being sued in that way put a great deal of effort into trying to prevent the case from being what’s called certified as a class action. They don’t ever want to get to the point where you’re having a trial on the merits of whether Trade Desk or their activity here is in violation of these various acts. So a great deal of time and effort is put into things like this application, which was an application by Ticketmaster in BC to say, hey, judge, you shouldn’t allow the BC case to proceed because look, there’s one already going on Saskatchewan. Just let that one go. It might cover the waterfront here. It’s not fair. We shouldn’t have to defend two or three of these things. Let’s just leave it to Saskatchewan.
Adam Stirling [00:17:59] Yes.
Michael T. Mulligan [00:17:59] Well, that didn’t get traction. And one of the reasons it didn’t get traction with the judge who decided it. Is the BC action specifically pleads or relies upon things like that act that I mentioned, the Business Practices and Consumer Protection Act, which is just a thing in BC and the proposed BC class action is also restricted just to people who live in BC. They’re not trying to cover the whole waterfront across the country. And so essentially this was an effort by Ticketmaster to try to stop the BC case and tried to then defend the one in Saskatchewan. I guess they thought they would have had some better shot defending that thing. The other interesting element of this decision is that Ticketmaster was also, in this case where they were sued, they would get served with the Notice of Civil Claim. Ticketmaster didn’t want to have to file a reply. Usually what happens is you want to sue somebody, you give them a Notice of Civil Claims and here’s why I’m suing you.
Adam Stirling [00:18:57] Mm hhmm.
Michael T. Mulligan [00:18:57] And the person you give that to would then finally Reply to the Civil Claims saying, well, here’s why I don’t think I should pay you any money, here’s my explanation. Ticketmaster really didn’t want to have to file that and they hadn’t. And they were relying on some cases where judges found that would be unfair to make them even explain why they don’t owe the money until after the certification issue has been decided, which again, that’s become the battleground on these class action cases. But once again, the judge decided, no, there’s no basis for not filing a reply to at least set out why it is you say that Trade Desk, these other practices that you’re engaged in, don’t violate these acts. You’ve got 60 days, Ticketmaster. File a reply and the BC case can go ahead. And then what often happens in these class actions is they have a big legal fight over the certification. And if the thing gets certified, that would then focus the mind. If you’re a ticket master on, okay, here’s your potential liability. There might be, you know, this many hundreds of thousands of people. Well, there could be a big award now, and there’s a higher probability that the thing will settle if and when certification flows. So, there’s just a great deal of legal effort put in by corporate defendants to not file the reply. Have the thing held off while some other one might go on. Resist getting certified, appealing that decision. So that’s where the legal fight is focused. But I suppose the takeaway for people is, you know if you’re somebody who’s wound up purchasing tickets on Ticketmaster or from the resale site that they own, at the end of the day, StubHub, I think that’s the name of it.
Adam Stirling [00:20:38] Yes.
Michael T. Mulligan [00:20:39] Owned by Ticketmaster. You may wind up with some compensation depending on how this thing plays out. I’d say don’t hold your breath here, they’ll probably be at this for the next 5 or 10 years. But someone out there is fighting Ticketmaster, and if you think the idea of them also selling this Trade Desk software doesn’t seem particularly fair. Somebody is out there making that argument for you.
Adam Stirling [00:21:02] I don’t even want to know what the standards of review might be depending on where this goes one way or the other. Maybe that’s for another day.
Michael T. Mulligan [00:21:07] Yes.
Adam Stirling [00:21:08] All right. Michael Mulligan appreciate your knowledge and insight, as always. Thank you so much for coming in with our time-delayed segment. Let’s see how much time we have left. We’ve got about 30 seconds. Any final thoughts?
Michael T. Mulligan [00:21:18] Well, I must say, on the Ticketmaster case, one of the interesting things is that Ticketmaster puts on their website a link to a number of case, a number of stories that have considered ticket pricing in the past, including a very interesting one by Freakonomics. The, in that book and subsequent stories, that talks about the fundamental issue being that tickets initially are sold at a lower price than what the market will bear, because people putting on concerts don’t want to appear to be greedy. And by doing that, you virtually guarantee you’re going to wind up with this secondary market. So that’s the sort of thing that Ticketmaster is pointing to, saying, hey, look, this is just a function of the market. How are we supposed to stop it? You know, this isn’t the fault of us and our Trade Desk software. This is just the law of economics.
Adam Stirling [00:22:03] Michael Mulligan, Legally Speaking, the second half of our second hour, normally, every week here on CFAX 1070 on a Thursday. Quick break news is next.
Automatically Transcribed on December 19, 2019 – MULLIGAN DEFENCE LAWYERS