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 ordered.
The issue before the Supreme Court was whether the Tribunal warranted any deference by the reviewing court.
Iacobucci J. considered four factors to determine the standard of review from Pezim v. British Columbia (Superintendent of Brokers). 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 and so required some deference to their skill and judgment.
With this analysis in mind, Iacobucci devised a standard of review in between "correctness" and "patent ureasonableness". 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".
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