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Canada (Director of Investigation and Research) v Southam Inc

Supreme Court of Canada Standard of review John Sopinka
Canada (Director of Investigation and Research) v Southam Inc
Supreme Court of Canada
Hearing: November 25, 1996
Judgment: November 25, 1996 and March 30, 1997
Full case nameSoutham Inc., Lower Mainland Publishing Ltd., RIM Publishing Inc., Yellow Cedar Properties Ltd., North Shore Free Press Ltd., Specialty Publishers Inc., and Elty Publications Ltd. v, Director of Investigation and Research
Citations[1997] 1 S.C.R. 748
Docket No.24915
Prior historyJudgment for the Director of Investigation and Research (Competition Tribunal) in the Federal Court of Appeal.
RulingAppeal allowed in part.
Holding
Besides the standards of "correctness" and "patently unreasonableness", a middle-ground standard of review is required for certain judicial reviews: the standard of "reasonableness".
Court membership
Chief Justice: Antonio Lamer
Puisne Justices: Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major
Reasons given
Unanimous reasons byIacobucci J.

Canada (Director of Investigation and Research) v Southam Inc, [1997] 1 S.C.R. 748 is a leading decision of the Supreme Court of Canada on judicial review. In this case the Court first set out the standard of review of "reasonableness simpliciter", which directs the court to only review decisions that are "not supported by any reasons that can stand up to a somewhat probing examination".[1]

Background

Southam Inc. purchased a number of small newspapers in the Vancouver region. The Competition Bureau investigated the purchase as a violation of the Competition Act. The Competition Tribunal held that Southam violated section 92 of the Competition Act and ordered the company to sell off one of the papers. The Tribunal found that the newspapers were not in the same market with regards to print advertising markets. There was a decrease of competition in real estate advertising and not the retail advertising market.

Southam appealed under section 13 of the Act to the Federal Court of Appeal. The Federal Court of Appeal held that it owed no deference to the Tribunal's finding that the markets were not the same and so it substituted its own findings that the markets were the same. The Court refused to set aside the remedy that had been ordered.

The issue before the Supreme Court was whether the Tribunal warranted any deference by the reviewing court.

Judgment

Justice Iacobucci, writing for a unanimous Court, held that the appeal should be allowed but the remedy should stay.

Iacobucci J. considered four factors to determine the standard of review from Pezim v. British Columbia (Superintendent of Brokers).[2] There was a statutory right of appeal but no privative clause, so the first factor indicated less deference; however, the absence of a privative clause was not determinative. In his view, the issue was one of mixed fact and law that was based on the balancing of interests, so the courts should be reluctant to re-examine the evidence. Iacobucci considered the purpose of the Act, which he stated was to encourage and promote competition and equality among companies. In his view this purpose was more economic policy than law and so suggests greater deference. Finally, he considered the expertise of the Tribunal, which he considered to be the most important factor. He found the Tribunal had expertise in matters of economics and commerce which were critical in assessing the question before the Tribunal and this required the courts to defer to their skill and judgment.

With this analysis in mind, Iacobucci devised a standard of review in between "correctness" and "patent unreasonableness". A standard of "reasonableness simpliciter" was said to apply to decisions that are "not supported by any reasons that can stand up to a somewhat probing examination".[1]

See also

References

  1. ^ a b para. 56
  2. ^ [1994] 2 S.C.R. 557