Reflection Productions v. Ontario Media Dev. Corp., 2022 ONSC 64

CITATION: Reflection Productions v. Ontario Media Dev. Corp., 2022 ONSC 64

DIVISIONAL COURT FILE NO.: DC-19-315

DATE: 2022-01-12

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MORAWETZ C.J., VARPIO, KRISTJANSON JJ.

BETWEEN:

REFLECTION PRODUCTIONS CANADA LTD.

Applicant

– and –

ONTARIO MEDIA DEVELOPMENT CORPORATION

Respondent

Peter I. Waldmann, for the Applicant

Andi Jin, for the Respondent

HEARD: by videoconference at Toronto December 1, 2021

REASONS FOR DECISION

VARPIO J.:

OVERVIEW

[1] In 2017, the applicant, Reflection Productions Canada Ltd., produced a series of 39 hour-long television shows entitled Reflections. Reflections contained film of natural settings with Biblical scripture superimposed upon same.

[2] The Ontario Media Development Corporation (“OMDC”), an agency of the Ministry of Heritage, Sport, Tourism and Culture Industries, is mandated to stimulate employment and investment within Ontario’s cultural media industry. In that capacity, it is responsible for administering a tax credit program for Ontario-based productions. In order to qualify for this tax credit, a film must be either a “co-production”, must have 85% of its production shot in Ontario, or must be classified as a “documentary”.

[3] The applicant applied for the tax credit. All parties accept that it is not a “co-production” and that only 23% of Reflections was shot in Ontario. Accordingly, in order to receive the tax credit, Reflections must be categorized as a “documentary”.

[4] After review and consultation with the applicant’s principal, Mr. Mihkel Harilaid, the OMDC found that Reflections was not a “documentary”. As such, Reflections did not qualify for the tax credit.

[5] The applicant seeks judicial review of that finding and submits that the OMDC was unreasonable in arriving at that conclusion.

[6] For the reasons that follow, I find that the OMDC’s decision-making process and its decision were reasonable and, as a result, I will dismiss the appeal.

FACTS

The Applicant

[7] The applicant was incorporated in 2013 for the sole purpose of making Reflections, which was to be broadcast in Canada and the United States. Mr. Harilaid is an experienced film maker having previously received a tax credit through the OMDC for a fishing show he produced entitled Hookin’ Up with Nick and Mariko.

The OMDC and the Governing Statutory Framework

[8] The OMDC administers a tax credit program known as the Ontario Film and Television Tax Credit (“OFTTC”). Section 27(1)(7)(ii) of Ontario Regulation 37/09 as filed under the Taxation Act, 2007, S.O. 2007, c. 11, Sch. A. governs eligibility for the OFTTC:

27. (1) A film or television production made by a qualifying production company is an eligible Ontario production for the purposes of section 91 of the Act if the following conditions are satisfied:

28. If the production is not an interprovincial co-production or a treaty co-production,

iii. If the production is not a documentary, the photography or key animation for the production was done in Ontario during at least 85 per cent of the total number of days during which photography or key animation was done for the production.

[9] The term “documentary” is not defined within the Taxation Act or the regulations informing same.

Reflections and the OFTTC

[10] On November 3, 2016, the applicant applied for the OFTTC in relation to Reflections. OFTTC guidelines require that the applicant submit any application it makes for federal tax credits along with the OFTTC application. Accordingly, the applicant filed a copy of its application for a federal tax credit program as administered by the Canadian Audio-Visual Certification Office (“CAVCO”). In both the OMDC and CAVCO applications, the applicant described Reflections as follows:

Enjoy breathtaking scenes from many of God’s miraculous creations. Be immersed in the Word of God while you take in the majestic Rockies, the forests, lakes, and rivers of the Northern Ontario, the awe-inspiring Banff National Park, the beauty of Spain, Morocco, Mexico, South East Asia and much more. Familiar hymns and beautifully produced original music accompany Scripture to help you let go and surrender during a time of daily prayer and meditation.

[11] Originally, the applicant had classified Reflections as a “Lifestyle/Human Interest” production with CAVCO, as opposed to a “documentary”. On September 14, 2017, the OMDC advised the applicant of its concerns regarding Reflections’ eligibility for the OFTTC:

I see in the CAVCO application you have classified the production as Lifestyle/Human Interest, and the CRTC category assigned is 040 – Religion (not 02B – long form documentary) yet for your OFTTC you’ve classified it as a documentary. After reviewing the production there are concerns regarding classifying the production as a documentary.

[12] Mr. Harilaid responded to this concern on September 14, 2017 and asked: “Could you refresh my memory and let me know what concerns you have about the documentary genre?”

[13] On September 20, 2017, the OMDC advised the applicant that Reflections may not be eligible for the OFTTC because it was not a co-production, it did not meet the 85% shoot requirement and was not a “documentary”. The OMDC requested that the applicant withdraw its application.

[14] The applicant asked the OMDC what criteria were used to determine whether Reflections was a “documentary”. The OMDC responded that they used the CAVCO genre definitions, which defines “documentary” as follows:

An original work of non-fiction, primarily designed to inform but which may also educate and entertain, providing an in-depth critical analysis of a specific subject or point of view.

[15] On September 26, 2017, the OMDC advised the applicant of its concern that Reflections “contain[ed] no research component, no analysis, and no critique”. However, the OMDC offered to review individual episodes of Reflections that met the 85% shoot requirement so that those episodes might qualify for the OFTTC.

[16] On October 4, 2017, the applicant advised the OMDC that Reflections “meets all international criteria for a documentary” and was similar to renowned documentaries such as Planet Earth. The applicant also stated that CAVCO had reclassified Reflections as a documentary.

[17] On October 7, 2017, Mr. Harilaid and his co-producer spoke with the OMDC’s reviewing business officer and its team lead. The OMDC director was not on this call. In his affidavit in support of this application, Mr. Harilaid deposed that he made the following submissions to the OMDC at that time:

(a) “...the intention of the production [Reflections] was always a non-narrative documentary in the mold [sic] of Baraka and Koyaanisqatsi”;

(b) “CAVCO had changed their classification of the production [to “documentary”]”;

(c) “if the applicant were not granted the OFTTC, it would result in its bankruptcy.”

[18] Mr. Harilaid also deposed that during the October 7, 2019 conversation, the OMDC representatives referred to Reflections in a disparaging tone by using statements such as “that’s just a Bible quote”, “that’s just a Christian thing” and “how is the Bible anything critical?” As a result, Mr. Harilaid deposed that,

[a]fter the conversation had concluded, and I discussed it further with [Reflections’ co-producer], it became clear to me that the representatives of the OMDC were dismissive of the source material used in the production. Upon reflection, what seemed to me and [the co-producer] to be the primary issue that was informing their decision to deem the production ineligible for the OFTTC was the Christian message in the production.

I recall [the OMDC representatives] stating “your broadcaster is Daystar; that’s the big church [in] Texas”. It appeared to me that the OMDC representatives were unwilling to engage with my arguments and unwilling to see the true content of the production as it had a Christian message which they clearly deemed ignorant and objectionable.

In light of my previous experience with applying for the OFTTC and in light of the comments and decision made by the OMDC with respect to the production, I verily believe that the OMDC, without giving proper consideration to industry standards and the filmmaker’s intent, denied the Applicant’s OFTTC application not because the production does not fit into the definition of documentary, but for some improper and invalid reason or reasons, which may include an anti-Evangelical Christian sentiment held by members of the OMDC.

[19] On October 19, 2017, the OMDC advised the applicant that the reviewing business officer, the overseeing team lead, and the director had discussed Reflections and that the OMDC continued to have concerns regarding whether Reflections qualified as a “documentary”. The OMDC offered the applicant a further opportunity to make submissions, specifically as to why the production met the CAVCO definition of “documentary” as opposed to “religion”. Mr. Harilaid responded as follows:

In previous discussions, you have suggested that the CAVCO classification was of no import to your decision, but I agree with your current position that it is relevant.

CAVCO has certified this as a documentary so, regardless of my understanding of these criterion, it is certain that the project is a documentary by their standard.

To answer your question, to qualify as religion there are two criterions that must BOTH be met. Firstly, that it deals with “religion and religious teachings” and, secondly, that there is a “discussion of the human spiritual condition”. Although “Reflections” does deal with and use religion as source material there is no discussion of the human spiritual condition. This definitionally takes it out of this genre.

I note the exact wording for the religion criterion states “as well as,” which is in contrast to the documentary definition with uses “may also”.

It is unreasonable to suggest that all programs that deal with religion or reference God are spiritual programs.

There is no question that “Reflections” is a work of non-fiction in accordance with the CAVCO definition. This is an original work with all of the video material being filmed by us. The fact that we use scripture as our text does not negate the originality just as Ken Burn’s use of stills does not make his documentary, “The Civil War”, less “original”. It is the treatment and presentation of the material that dictates this. Our primary purpose here is to inform and educate the audience about what we believe are distinct connections of the world and certainly this is a “specific point of view” not shared by all.

I hope this puts the project into perspective and that you can now certify “Reflections” properly as a documentary and allow this to move forward with the full tax credit as filed.

[20] On December 1, 2017, the OMDC advised the applicant that it had considered the applicant’s arguments and had decided that Reflections could not be characterized as a “documentary”. Reflections was therefore ineligible for the OFTTC. In this correspondence, the OMDC director stated:

Thank you for your response. We do acknowledge that effort and money were spent on the production. However, we have reviewed the content of the series and your written arguments and found the production cannot be characterized as a documentary as it has not made a critical analysis of a subject or presented a point of view.

After further considering and reviewing the examples and arguments you presented on October 7, 2017, we gave you the opportunity to explain why the production meets the definition of “documentary”. Your response did not provide an explanation as to why the production should be considered a documentary. Rather, you have focused on why the production should not be categorized as “religion”. The production displays excerpts from scriptures on screen, which are recited by narrators, juxtaposed with images of nature, with music as opposed to providing an in-depth critical analysis or point of view on a subject.

The production does not present an in-depth discourse, for example, about God, spirituality, scriptures, religion, music, or nature. Rather it literally displays excerpts from scriptures.

As you are aware only productions that fulfill the 85% shot in Ontario requirement qualify for the OFTTC unless the production qualifies as a documentary or co-production. As the production consists of only 23% Ontario shooting, we will be issuing a letter of ineligibility on or after December 18, 2017. [Emphasis added.]

[21] On December 22, 2017, the director issued a letter of ineligibility that formalized the OMDC’s finding (the “Decision”).

The Application for Judicial Review

[22] On June 19, 2019, the applicant filed the instant application seeking judicial review of the Decision. Mr. Harilaid’s affidavit attached a variety of materials including newspaper articles and polling data. These materials describe what Mr. Harilaid suggests is an anti-evangelical Christian bias in media, government and Canadian society in general.

[23] The applicant served the director of the OMDC with a Rule 39.03 Notice of Examination with a Summons to Witness returnable December 9, 2020. On November 25, 2020, the OMDC brought an application to quash that subpoena. In grounds in support of the motion, the OMDC stated that

The Applicant’s proposed examination seeks documents and testimony that are protected by the doctrine of deliberative secrecy. The proposed examination is a fishing expedition based on an unreasonable and ultimately entirely speculative allegation of bias.

The Applicant has failed to meet this test. It has advised that the basis for its proposed examination is as follows:

“We are seeking to obtain as in a subpoena duces tecum from [the director’s] documentation that may have influenced the decision… including any which may reflect on any element of discrimination on the basis of religion which may have affected the decision, and questions to [the director’s] knowledge of same.”

[24] In its motion record, the OMDC made reference to the allegedly discriminatory remarks that were allegedly made by OMDC representatives on the October 7, 2019 call.

[25] The motion was granted, and the subpoena was quashed.

POSITIONS OF THE PARTIES

[26] The applicant raised several arguments in its factum and in oral argument. Effectively, it submitted that the OMDC engaged in improper conduct towards the applicant in its application for the OFTTC. Specifically, the applicant argued that:

a. Reflections was inspired by, and is similar to, world-renowned films such as Kohaanisqatsi and Baraka which are categorized as documentaries by leading experts such as the American Library of Congress and Roger Eberts;

b. Reflections is listed on IMDB as a documentary (as are Koyaanisqatsi and Baraka);

c. The OMDC did not specify Reflections’ actual genre;

d. CAVCO ultimately re-classified Reflections as a “documentary”;

e. Mr. Harilaid had previously received the OFTTC for Hookin’ Up with Nick and Mariko, which the OMDC accepted as a “documentary”;

f. Reflections provides the critical analysis necessary to meet the CAVCO definition of “documentary”: “[t]his critical analysis is provided by the juxtaposition of biblical scripture and filmed photography of the beauty of the world”;

g. The decision was not transparent because the OMDC refused to disclose its internal working documents;

h. The decision is contrary to the OMDC’s objective of stimulating employment and investment in Ontario because it has bankrupted the applicant;

i. It was unreasonable for the director to adopt the CAVCO definition of “documentary”; and

j. The director improperly considered anti-evangelical Christian sentiment.

[27] The applicant submitted that the appropriate standard of review was one of reasonableness.

[28] With respect to the arguments advanced by the applicant, the respondent submitted that the OMDC’s decision to adopt the CAVCO definition of a “documentary” was reasonable, that its interpretation of that definition was reasonable and that the OMDC afforded the applicant appropriate levels of procedural fairness.

ANALYSIS

Reasonableness

[29] Applications for judicial review begin with presumption that courts will review the decisions of administrative bodies on the basis of reasonableness. As the majority of the Supreme Court of Canada stated at paras. 82 and 83 of Vavilov v. Canada, 2019 SCC 65, 2019 S.C.J. No 65:

Reasonableness review aims to give effect to the legislature's intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law: see Dunsmuir, at paras. 27-28 and 48; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 10; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 317 (SCC), [1997] 3 S.C.R. 3, at para. 10.

It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker's reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the "range" of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the "correct" solution to the problem. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that"as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did": at para. 28; see also Ryan, at paras. 50-51. Instead, the reviewing court must consider only whether the decision made by the administrative decision maker -- including both the rationale for the decision and the outcome to which it led -- was unreasonable.

[30] The majority of the Supreme Court in Vavilov then described how a reviewing court ought to examine a decision-maker’s reasons at paras. 86 and 87:

Attention to the decision maker's reasons is part of how courts demonstrate respect for the decision-making process: see Dunsmuir, at paras. 47-49. In Dunsmuir, this Court explicitly stated that the court conducting a reasonableness review is concerned with "the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes": para. 47. Reasonableness, according to Dunsmuir"is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process", as well as "with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": ibid. In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.

This Court's jurisprudence since Dunsmuir should not be understood as having shifted the focus of reasonableness review away from a concern with the reasoning process and toward a nearly exclusive focus on the outcome of the administrative decision under review. Indeed, that a court conducting a reasonableness review properly considers both the outcome of the decision and the reasoning process that led to that outcome was recently reaffirmed in Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6, at para. 12. In that case, although the outcome of the decision at issue may not have been unreasonable in the circumstances, the decision was set aside because the outcome had been arrived at on the basis of an unreasonable chain of analysis. This approach is consistent with the direction in Dunsmuir that judicial review is concerned with both outcome and process. To accept otherwise would undermine, rather than demonstrate respect toward, the institutional role of the administrative decision maker.

[31] At paras. 94 to 96 of Vavilov, the majority of the Supreme Court focused on the need to interpret an administrative decision in light of its legal and factual framework:

The reviewing court must also read the decision maker's reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker's work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker's reasoning process that is not apparent from the reasons themselves or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency. Opposing parties may have made concessions that had obviated the need for the decision maker to adjudicate on a particular issue; the decision maker may have followed a well-established line of administrative case law that no party had challenged during the proceedings; or an individual decision maker may have adopted an interpretation set out in a public interpretive policy of the administrative body of which he or she is a member.

That being said, reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it. It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party.

Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision. Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines, at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion. This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision. To the extent that cases such as Newfoundland Nurses and Alberta Teachers have been taken as suggesting otherwise, such a view is mistaken.

[32] Therefore, the reviewing court must be satisfied that the decision-maker’s reasoning has no “fatal flaws in its overarching logic” and that “there is a line of analysis within the given reasons that could reasonably lead to [the outcome]”: see Vavilov at para. 55.

Application to This Case

[33] A further consideration of the applicant’s submissions reveals that a number of the applicant’s ostensibly discrete positions are actually positions that support larger arguments. Accordingly, the court will consider these arguments as part of the following analysis:

a. The adoption of the CAVCO decision;

b. The interpretation of the definition;

c. The application of the definition to Reflections; and

d. Procedural fairness.

The Adoption of the Definition

[34] In its factum, the applicant argued that the OMDC was unreasonable in adopting CAVCO’s definition of “documentary” for the purposes of administering the OTTFC. In oral argument, the applicant resiled from this position by stating that, for practical purposes, it was preferrable for filmmakers to have one definition of “documentary” in order to simplify the procurement of tax credits.

[35] In light of this concession, considerable effort is not necessary to analyze the OMDC’s decision to adopt this definition, however it bears repeating that the applicant’s concession is appropriate. First, it is preferable that filmmakers have a consistent definition of “documentary” in order to determine whether their works are eligible for tax credits at both the provincial and federal levels. Second, the applicant does not suggest that there is anything in the definition that fails to account for what would commonly be understood by the term “documentary”, other than the arguments it raised as described at para. 23 of these reasons. Thus, I find that the definition of “documentary” adopted by the OMDC is reasonable in the circumstances.

The Interpretation of the Definition

[36] The applicant effectively argues that the OMDC was unreasonable in its interpretation of “documentary” in that:

a. A plain reading of the definition is such that the “critical analysis” element of the definition is optional, as opposed to mandatory;

b. CAVCO has re-classified Reflections as a documentary, ergo the OMDC’s failure to re-classify Reflections is unreasonable;

c. Other films, such as Koyaanisqatsi and Baraka, qualify as documentaries on online databases such as IMDB, or are so classified by experts like Roger Eberts and the Library of Congress. Accordingly, the OMDC’s failure to categorize Reflections as a documentary is unreasonable;

d. Hookin’ Up with Nick and Mariko was classified as a “documentary” for the purposes of administering the OFTTC, ergo Reflections should qualify as well;

e. The OMDC’s failure to advise the applicant as to Reflections’ actual categorization demands that Reflections is, in fact, a “documentary”. As such, the decision is unreasonable;

f. A principle of tax law stipulates that disputes about interpretation should generally be resolved in favour of the taxpayer. Accordingly, the decision is unreasonable; and

g. The fact that the applicant will become insolvent if it does not receive the OTTFC demands that the OMDC’s interpretation of “documentary” is not in keeping with the OMDC mandate to encourage economic growth in the Ontario film industry. This incongruence proves that the OMDC’s interpretation of the definition is unreasonable.

Grammatical Construction

[37] The Court of Appeal for Ontario recently reiterated the approach to be taken when engaging in statutory interpretation in R. v. Walsh, 2021 ONCA 43 at paras. 59 and 60:

It is trite law that the modern approach to statutory interpretation requires that "the words of an Act must be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at para. 26.

The starting point is to determine the ordinary meaning of the text: R. v. Wookey, [2016] O.J. No. 4158, 2016 ONCA 611, 351 O.A.C. 14, at para. 24. At para. 25 of Wookey, quoting from Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014), Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513, [2006] S.C.J. No. 48, 2006 SCC 48, at para. 30, and Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 31 (SCC), [1993] 3 S.C.R. 724, [1993] S.C.J. No. 114, at p. 735 S.C.R., this court states that ordinary meaning "refers to the reader's first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context" and is "the natural meaning which appears when the provision is simply read through". In other words, the "plain" or "ordinary" meaning of a word is not dictated by its dictionary meaning nor is it frozen in time.

[38] Although the definition of “documentary” is not found in a statute, the term “documentary” is used in the Regulations interpreting the eligibility requirements for the OFTTC. Accordingly, the above-referenced jurisprudence governs the interpretation of “documentary” and, as such, the court must determine the “ordinary meaning” of the definition of “documentary” in accordance with, inter alia, the ordinary rules of grammatical construction.

[39] One rule of ordinary grammatical construction involves “parenthetical expressions”. A “parenthetical expression” is defined at page 543 of Mastering Effective English, (1950, Vancouver, Toronto and Montreal) by the authors J.C. Tressler and Claude E. Lewis who state:

Comma

3.To set off an expression requires two commas unless the words to be set off come first or last in the sentence.

6.Most parenthetical expressions are set off by commas – for example, however, on the other hand, for instance, by the way, to tell the truth, to say the least, I think, I believe, I repeat.

The lion, like everything great, has his share of critics and detractors. [Emphasis in original.]

[40] The grammatical website englishclub.com defines a parenthetical expression as follows:

A parenthetical expression is a word or words added to a sentence without changing the meaning or grammar of the original sentence. Parenthetical expressions give extra information but are not essential. You can add and remove a parenthetical and the sentence works just the same. [Emphasis added.]

[41] As noted earlier in these reasons, the OMDC adopted CAVCO’s definition of “documentary”, which is:

An original work of non-fiction, primarily designed to inform but which may also educate and entertain, providing an in-depth critical analysis of a specific subject or point of view. [Emphasis added.]

[42] CAVCO’s definition of “documentary” thus contains a parenthetical expression, namely the phrase “primarily designed to inform but which may also educate and entertain”. This expression does not alter the meaning of the primary thought, namely that a documentary is “[a]n original work of non-fiction... providing an in-depth critical analysis of a specific subject or point of view”. Put another way, the phrase “primarily designed to inform but which may also educate and entertain” does not obviate the need for “in-depth critical analysis” because the impugned phrase is merely a parenthetical expression.

[43] The OMDC’s interpretation that a documentary requires “in-depth critical analysis of a specific subject” is thus not unreasonable. Rather, it is entirely consistent with the ordinary rules of grammatical construction and the jurisprudence governing statutory interpretation.

CAVCO, Roger Eberts, the Library of Congress and Hookin’ Up with Nick and Mariko

[44] With regards to CAVCO’s classification of Reflections as a documentary, Miller J.A. of the Court of Appeal for Ontario stated at para. 23 of Pong Marketing and Promotions, Inc. v. OMDC, 2018 ONCA 555, citing McLean v. British Columbia, 2013 SCC 6:

… “under reasonableness review, we defer to any reasonable interpretation adopted by an administrative decision maker, even if other reasonable interpretations may exist”. It is not enough for a party seeking judicial review of a decision to establish that a competing interpretation is reasonable; the applicant’s burden is to establish that the interpretation adopted by the administrative decision maker is unreasonable. [Emphasis in original.]

[45] This principle was repeated by this court in Sticky Nuggz Inc. v. AGCO, 2020 ONSC 5916 at paras 53 and 54:

The onus of proving unreasonableness falls upon the Applicant. Decision-makers will often be confronted with multiple possible solutions or choices, all of which would be consistent with the applicable law that guides their decision. The ultimate choice, however, rests with the decision-maker. Their decisions on such matters are entitled to the greatest deference.

The use of non-specific language in the governing legislation suggests a legislative intention that the decision-maker has the authority to decide which interpretation best furthers the statutory mandate. It is not enough for a party seeking judicial review to establish that a competing interpretation is reasonable, or even that a competing interpretation may be preferable. An applicant is required to establish that the interpretation chosen by the decision-maker is unreasonable, Pong Marketing and Promotions Inc. v. Ontario Media Development Corp., 2018 ONCA 555 at paras. 22 and 23.

[46] Ergo, CAVCO’s re-classification of Reflections as a documentary does not render the OMDC’s non-classification unreasonable. The OMDC’s classification must be reviewed on its own merits as described above.

[47] With respect to the applicant’s argument that similar films have been classified as documentaries by Roger Eberts and others, this evidence does not support any finding whatsoever since the impugned films are not before the court, the definitions used by Roger Eberts and others are not filed with the court and, even if said evidence were before the court, the principles described in Pong Marketing would form a complete answer to the applicant’s submission.

[48] The same rationale holds true for the OMDC’s decision to classify Hookin’ Up with Nick and Mariko.

[49] Accordingly, the classification of other films is irrelevant to the analysis to be undertaken by this court.

The Non-Disclosure of Reflections’ Categorization

[50] The OMDC’s failure to advise the applicant as to how Reflections should be categorized (fiction, lifestyle/human interest, etc.) does not affect the reasonableness analysis. The OTTFC is awarded to films that are, inter alia, categorized as “documentaries”. For the purposes of awarding the OTTFC in this case, it does not matter how Reflections is classified except to state that it is, or is not, a “documentary”. This argument does not, therefore, affect the reasonableness analysis.

The Residual Presumption in Tax Law

[51] The applicant’s takes the position that there is a residual presumption that tax disputes ought to be ruled in favour of the taxpayer. As such, the applicant’s interpretation of “documentary” ought to be adopted by the OMDC and the decision is therefore unreasonable. That position is negated by the Court of Appeal for Ontario’s decision in Pong Marketing.

[52] In Pong Marketing, the court faced a situation where the OMDC denied a digital sweepstakes game maker a tax credit. The maker appealed the decision to the Divisional Court and then the Court of Appeal. At the Court of Appeal, three justices gave three separate concurring reasons that found that the OMDC’s decision was reasonable in the circumstances. One of the issues before the court was whether the OMDC, when faced with multiple interpretations of a given of a taxation statute, was required to side with the taxpayer. At para. 42 of the decision, Miller J.A. described the presumption as follows:

The OMDC, echoing the dissent of Sachs J., argues that this alternative argument is in error. It argues this approach cannot account for the deference that is to be accorded to the decisions of administrative decision makers. It argues that a rule that legislative indeterminacy must always be resolved by choosing the interpretation advanced by the taxpayer would be inconsistent with the core function of administrative decision-makers of interpreting their home statutes in a manner that advances statutory objectives. [Emphasis added]

[53] Ultimately, Miller J.A. found at paras 51 and 52:

In this case, the Regulation requires the OMDC to determine a product's "primary purpose" as well as whether that purpose is to "educate, inform or entertain the user". As discussed above, these criteria require evaluations of what is primary, and specifications of what it means to educate, inform or entertain.

Were the residual presumption to be applied in the manner suggested by Pong, it would eliminate much of the authority conveyed on the OMDC by statute. This would undermine the statutory scheme and be inconsistent with the rationale for and nature of a reasonableness standard of review. The majority of the Divisional Court accordingly erred in its conclusion that this presumption applied to support the interpretation advanced by Pong.

[54] Laskin J.A. and Pacciocco J.A. concurred in the result but had different rationales. At paras. 67 to 69 of the decision, Laskin J.A. wrote:

The other basis on which I would still find the residual presumption inapplicable is on the assumption that the Regulation gives rise to two reasonable interpretations: the majority of the Divisional Court's interpretation and OMDC's interpretation. Even on that assumption, the residual presumption cannot apply. To apply it would be incompatible with reasonableness review.

In the two Supreme Court of Canada cases referred to by counsel, the residual presumption in favour of the tax payer is said to apply "in the exceptional case where application of the ordinary principles of interpretation does not resolve the issue": Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, 1994 58 (SCC), [1994] 3 S.C.R. 3, [1994] S.C.J. No. 78, at p. 19 S.C.R.; and Placer Dome Canada Ltd. v. Ontario (Minister of Finance), [2006] 1 S.C.R. 715, [2006] S.C.J. No. 20, 2006 SCC 20, at para. 24. In both cases, courts were interpreting taxation statutes. In neither case was the Supreme Court looking at the interpretation of a statute by an administrative decision maker, which is reviewable on a deferential standard of reasonableness.

It seems to me that if reasonableness review applies, as it does here, and if a reviewing court concludes that the administrative decision-maker's interpretation is reasonable, as Miller J.A. does, that is the end of the matter. It is not for the reviewing court to look around to see if another reasonable interpretation more favourable to the tax payer exists, and then apply that other reasonable interpretation. To do so would entirely defeat the principles and objectives of reasonableness review. [Emphasis added.]

[55] Pacciocco J.A. agreed with Laskin J.A. as regards the residual presumption. He stated at para. 73:

I also agree with my colleagues that the Divisional Court erred in relying on the residual presumption in favour of the tax payer. I agree with Laskin J.A., that where a reviewing court concludes that "the administrative decision-maker's interpretation is reasonable . . . that is the end of the matter. It is not for the reviewing court to look around to see if another reasonable interpretation more favourable to the tax payer exists, and then apply that other reasonable interpretation." Applying the residual presumption to overcome a reasonable interpretation arrived at by an administrative decision-maker is inconsistent with the reasonableness standard of review that must be applied by a reviewing court. [Emphasis added.]

[56] Therefore, in Pong Marketing, the Court of Appeal for Ontario held in three separate opinions that any residual presumption in favour of a tax payer’s definition is superseded by an administrative body’s reasonable interpretation of its own statute.

[57] As such, the residual presumption is of no assistance to the applicant.

Insolvency

[58] The fact that the applicant claims it will be insolvent if it is not awarded the OTTFC is not relevant to the instant case. It was conceded in oral argument that the applicant could have consulted with the OMDC to determine whether Reflections was eligible for the OFTTC prior to filming, but the applicant chose not to do so. The failure to avail itself of this opportunity effectively negates the applicant’s submission.

[59] Also, this argument, taken to its logical conclusion, would suggest that all films with any ties to Ontario should qualify for the OFTTC since the OMDC must promote the Ontario media industry. This is an absurd result that also nullifies the applicant’s submission.

Conclusion

[60] Having considered the applicant’s submissions, this court finds that the OMDC’s interpretation of “documentary” accords with common grammatical structure while the applicant’s submissions are without merit. The OMDC’s interpretation of “documentary” is therefore reasonable given the grammatical, factual and legal context informing same.

The Application of the Definition to Reflections

The Juxtaposition of Scripture and Film

[61] The applicant submits that the juxtaposition of scripture and nature creates a visual argument for the existence and greatness of God. Accordingly, Reflections is a documentary because it is a work of critical analysis and the decision is therefore unreasonable.

[62] This argument is belied by applicant’s own description of Reflections:

Enjoy breathtaking scenes from many of God’s miraculous creations. Be immersed in the Word of God while you take in the majestic Rockies, the forests, lakes, and rivers of the Northern Ontario, the awe-inspiring Banff National Park, the beauty of Spain, Morocco, Mexico, South East Asia and much more. Familiar hymns and beautifully produced original music accompany Scripture to help you let go and surrender during a time of daily prayer and meditation. [Emphasis added.]

[63] As noted in the director’s December 1, 2017 e-mail, the ordinary meaning of “critical analysis” involves the engagement of one’s reasoning and questioning. Rather than engage in such an act of intellectual rigor, the applicant’s own description states that Reflections will “help you let go and surrender during a time of daily prayer and meditation”. Clearly, the applicant’s view of its own work stands in contrast to CAVCO’s definition of a “documentary” in that a documentary is supposed to make the viewer think and analyze whereas the applicant suggests that Reflections will help the viewer let go and surrender.

[64] Therefore, the applicant’s argument is without merit.

Procedural Fairness

[65] The applicant effectively argues that the OMDC denied the applicant’s right to procedural fairness in two ways:

a. The OMDC’s decision-making was fettered by anti-evangelical Christian bias; and

b. The OMDC allegedly withheld relevant production from the applicant that may have evidenced that bias.

Bias

[66] During oral submissions, the applicant took the position that it was not alleging that the OMDC was biased as against the applicant as a result of anti-evangelical Christian motives. Rather, the applicant submitted that the OMDC’s reasoning was merely fettered by same. Simply put, this is a pyrrhic distinction in that an allegation that a decision-maker’s reasoning is fettered by bias is in fact an allegation of bias. Accordingly, the legal principles governing allegations of bias apply to this case.

[67] Allegations of bias must be made at first instance to the decision-maker in question: Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 23; Speck v. OLRB, 2021 ONSC 3176 at para 44 (Div. Ct.). In this case, the applicant conceded in oral argument that it did not raise any concerns regarding bias to the OMDC.

[68] The applicant’s concerns about anti-evangelical Christian bias are founded upon Mr. Harilaid’s interpretation of statements allegedly made by OMDC representatives. It bears repeating that a decision-maker is presumed to be impartial and that party’s interpretation of a decision-maker’s tone of voice, facial expressions and body language are insufficient to overcome the presumption of impartiality: Beard Winter LLP v. Shekhdar, 2016 ONCA 493 at para 12; Ramirez v. Canada, 2012 FC 809 at paras. 22 and 23; SMR v. Children’s Aid Society of Oxford County, 2003 2421 (ON SC), [2003] OJ No. 2568 (Ont. S.C.) at paras 23 – 25. The nature of the concerns raised by the applicant are thus not capable of overcoming the high hurdle required to show bias.

[69] Finally, the statements made by people other than a decision-maker are not proof of the decision-maker’s state of mind: Elson v. Canada, 2017 FC 459 at paras. 146 – 149. Any statements made during the October 7, 2019 conversation between the applicant and representatives of the OMDC, even were the court to accept that the statements were made and that they evidence some form of bias as against evangelical Christians, are not evidence of potential bias held by the director, who was not present for that call.

[70] The applicant’s effective submission that the OMDC was biased as against the applicant due to an anti-evangelical Christian motivation therefore fails.

Production

[71] The Applicant served a Notice of Examination under Rule 39.03 of the Rules of Civil Procedure, which is a mechanism to compel oral testimony. The Notice of Examination was quashed. The decision to quash was not appealed. The Notice of Application seeking judicial review does not raise the decision to quash the Notice of Examination as an error.

[72] A subpoena duces tecum is a mechanism to have a witness present oral testimony. It is not an order to produce documents to a party outside of court, as set out in Law Society of Saskatchewan v Abrametz, 2016 SKQB 134 at para 46:

The document in issue, a subpoena duces tecum, is understood to have a particular function - to compel the subpoenaed person to court, or other independent tribunal, to testify and to bring with him/her certain, specified documents. Watt J. (as he then was) described a subpoena in these terms in R. v. Finkle, [2007] O.J. No. 3506 (Ont. S.C.J.) (QL): "literally translated 'under penalty', [a subpoena] is a command to the person named to appear at a time and place specified to give testimony about a matter in issue between the parties to a proceeding" (para. 88). Watt J. then explained the function of a subpoena duces tecum and the limits that ought to attach to its use:

... A subpoena duces tecum requires the witness to bring with him or her things like books, papers and other things connected with his or her testimony. In the usual course, a subpoena duces tecum is not used to obtain these other things, which are often used as aides memoires for production at trial.

It is uncontroversial that, where alternative methods of obtaining evidence are available, the party who seeks the evidence may generally choose the means to achieve that end. At the same time, however, courts should be chary of manifest circumventions of traditional methods of acquiring evidence, especially those that avoid adherence to established constitutional principle. A subpoena duces tecum ought not to be used to avoid the scrutiny associated with other methods of acquisition. See, by comparison, R. v. French (1977), 1977 2117 (ON CA), 37 C.C.C. (2d) 201, 213-4 (Ont. C.A.) per MacKinnon J.A., affirmed on other grounds (1979), 1979 49 (SCC), 47 C.C.C. (2d) 411 (S.C.C.). [Emphasis in original.]

[73] Although not raised in the Notice of Application, the applicant now argues that the record filed by the decision-maker was underinclusive.

[74] Section 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 provides:

Record to be filed in court

When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.

[75] Ergo, pursuant to s. 10 of the Judicial Review Procedure Act, it was available to the applicant to bring a motion seeking production of documents it alleges were relied on by the decision-maker but are not contained in the record: see, for example K.D. v. Peel Children’s Aid Society, 2017 ONSC 7392 (Div. Ct.) at paras. 16-17). The applicant failed to do so. As a result, it is precluded from raising this issue for the first time on judicial review.

[76] The applicant’s argument in this regard therefore fails.

Conclusion

[77] There is no evidence to suggest that the OMDC failed to afford appropriate levels of procedural fairness to the applicant when it arrived at the Decision.

CONCLUSION

[78] The Decision was reasonable and the OMDC’s conduct was also reasonable. The instant application for judicial review is dismissed.

COSTS

[79] The parties could not agree on costs. Reflections’ counsel filed a Bill of Costs seeking $25,665.05 (all inclusive) at a partial indemnity rate. The OMDC’s counsel seeks costs in the amount of $12,705.00 for the hearing of the application and $5,000.00 (as agreed upon by the parties) for the motion to quash the subpoena. Given the mandates of Rule 57.01 and given the Bill of Costs filed by Reflections, the quantum of costs sought by the OMDC is entirely appropriate.

[80] Therefore, the applicant shall pay $17,705.00 in costs (all inclusive) to the respondent (for both the instant application and the motion to quash) within 90 days of today’s date.

Varpio, J.

“I agree” Morawetz, CJSCJ

“I agree” Kristjanson J.

Released: January 12, 2022