Faculty Blog

In 1994, when the member states of what would later become the World Trade Organization sat to draft the TRIPs Agreement they could not agree on the question of parallel importation and the extent to which IP law should regulate it and eventually decided not to decide and let each country decide its own policy. It seemed that in Euro-Excellence v. Kraft the same thing happened to the justices of the Supreme Court of Canada. They too could not agree on what Canada’s copyright law says on the issue.

If I have to summarize in one word yesterday’s Supreme Court’s decision in Euro Excellence v. Kraft it will be “mess”. The decision might have solved the current dispute between Euro Excellence and Kraft but provides very little guidance for future disputes.  Moreover, a majority of the Court based their respective decisions on technical grounds, presenting the question merely as one of statutory interpretation. (You can read reports on the decisions in the blog posts of Michael Geist, Howard Knopf and Norman Siebrasse).

Administrative law is often obscure but the Supreme Court over the past year or two has been embroiled in a particularly technical administrative law question around which tribunals have jurisdiction over which kinds of disputes and whether more than one tribunal may have jurisdiction over the same dispute. Like many technical questions in administrative law, however, there is a basic question of fairness and justice underlying the debate. The stakes for Canadians who encounter the justice system (and far more of this group do so before administrative tribunals than before courts), could not be higher.

While there have been five or six decisions since 2005 on the issue of exclusive and concurrent jurisdiction in administrative tribunals, the one which illustrates the underlying issues best is Tranchemontagne v. Ontario (Director, Disability Support Program) [2006] S.C.J. No. 14.