Jun 19, 2015

Deference and the Principles of Statutory Interpretation (Again): Bell Canada v. Amtelecom Limited Partnership, 2015 FCA 126

Bell Canada v. Amtelecom Limited Partnership, [2016] 1 FCR 29, 2015 FCA 126 (CanLII)

Andy Grewal had an interesting post on the Notice and Comment blog last week on a D.C. Circuit decision holding that the canon against extraterritorial interpretation of statutes trumps Chevron deference (though also suggesting that if the agency turned its mind to the canon its reasoned position might survive review). Grewal comments, astutely:

Yet recent judicial statements, as in Validus, suggest that Chevron deference might just be an interpretive canon which need not be formally overruled. That is, if a court wants to depart from an interpretive canon, whether it is the plain meaning rule, the extraterritorial presumption, or anything else, it need not “overrule” a prior case that employed the canon. Instead, interpretive canons are tools of judicial reasoning, not binding law. By treating agency deference as subservient to the extraterritoriality presumption, the D.C. Circuit implicitly viewed Chevron as an interpretive canon. This might diminish the importance of Chevron in other contexts.

Somewhat oddly, the D.C. Circuit left room for the government to eventually vindicate its arguments in Validus. That is, the court denied Chevron deference in part because the IRS’s previous rulings did not address the presumption against extraterritorial application of statutes. This seemingly suggests that if the IRS’s later rulings examine the extraterritorial presumption, the court might eventually defer to the IRS’s (forgone) conclusion.

Contrast this with the following passage from Pelletier J.A.’s reasons in Bell Canada v. Amtelecom Limited Partnership, 2015 FCA 126, an interesting case involving the retrospective application by the CRTC of new standards for wireless operators:

[36]           To the extent that a tribunal is entitled to deference in the interpretation of its home statute, it must equally be entitled to deference in the use which it makes of the tools of statutory interpretation. It would be illogical to find that while a tribunal’s interpretation of its home statute was presumptively entitled to deference, its use of the rules of interpretation, or its treatment of rebuttable presumptions, was to be assessed on the standard of correctness. This would simply be a back door application of the correctness standard.

I was very heartened to see this passage, as it resembles the argument I laid out in “Unreasonable Interpretations of Law” but which up to now has not had any takers amongst Canadian judges. The Supreme Court of Canada recently denied leave in a case that squarely raised this issue and I do hope they come back to it at some point, hopefully to approve Pelletier J.A.’s approach.

On the merits, Pelletier J.A. upheld the retrospective application of the new policy:

[51]           The issue is the timing of [the] implementation. The CRTC found that it was in the best interests of consumers that the Code be implemented as soon as possible and that it was essential that the transition period be as short as possible. These are both question which are intimately tied to the objectives of the Code itself. They are also questions which depend on the exercise of the CRTC’s intimate knowledge of the telecommunications industry and its regulatory environment. To that extent, they are determinations of fact made by the CRTC in the exercise of its mandate, or to put the matter another way, they are determinations which are permeated by the CRTC’s factual expertise, both generally and specifically in the context of this proceeding.

[56]           …Given the CRTC’s intention to put more information into the hands of consumers so as to increase the dynamism of the market, it is reasonable to have all consumers on the same footing as soon as possible. It is perhaps this limited non-technical view of “undue discrimination” which the CRTC had in mind. From the point of view of the regulation of the retail market in voice and data wireless services, the CRTC could reasonably consider that section 24, by necessary implication, gives it the power to impose the Code retrospectively.