Tariff-ic timing? FCA Reinforces Limits on Early Judicial Review

In Society of Composers, Authors and Music Publishers of Canada (SOCAN) v. Apple Canada Inc. et al., 2026 FCA 122, the Federal Court of Appeal dismissed SOCAN’s application for judicial review as premature.

Under the doctrine of prematurity, courts generally review administrative decisions only when they are final, meaning they conclusively determine the parties' rights, impose legal obligations, or cause prejudicial effects. Courts may review an interlocutory decision immediately only in exceptional circumstances, where the consequences of waiting are so “immediate and radical” that they call the rule of law into question.

What makes SOCAN notable is that the Court disposed of the application on a preliminary motion to strike. Courts rarely strike judicial review applications at this stage: an application must be “so clearly improper as to be bereft of any possibility of success,” a threshold the Court acknowledged is “high.”

SOCAN demonstrates that where prematurity is sufficiently clear, a court may dispose of an application on a preliminary motion.

Background: SOCAN’s Tariff Application Before the Copyright Board

SOCAN is a Canadian copyright collective that licenses musical works and collects royalties for more than 185,000 songwriters, composers, authors, and music publishers. It applied to the Copyright Board to determine the tariffs that online streaming services, including Apple TV+, Netflix, and YouTube, should pay for using music in SOCAN’s repertoire from 2014 to 2026.

The Board divided the proceeding into two phases:

• Phase I would decide four preliminary legal questions that would govern how the tariffs would be calculated, including how certain provisions of the Copyright Act applied and which rights were triggered by offline viewing copies.
• Phase II would then apply that framework to the evidence to determine the tariffs SOCAN could collect.

The Board also emphasized that if the Phase II evidence significantly called a Phase I conclusion into question, the parties could ask it to reconsider that conclusion.

After the Board released its Phase I ruling on November 21, 2025, SOCAN applied for judicial review without waiting for Phase II or the Board’s final tariff decision.

Buena Vista International, Warner Bros. Entertainment, and Netflix moved to strike SOCAN’s application as premature. The Court granted the motion and dismissed the application.

Why Was SOCAN’s Judicial Review Application Premature?

The Court held that SOCAN's application met the high threshold for dismissal on a motion to strike: the Phase I ruling remained interlocutory, and no exceptional circumstances justified immediate review.

1. The Phase I Ruling was Interlocutory

The Court interpreted “interlocutory” broadly. A ruling does not become final merely because it resolves significant legal issues or shapes the remainder of a proceeding. Rather, it is final only if it conclusively determines the parties' rights, imposes legal obligations, or causes prejudicial effects.

SOCAN relied on Wilson v. Atomic Energy of Canada Limited to argue that completing the first stage of a bifurcated proceeding made the Phase I ruling final. The Court rejected that comparison.

In Wilson, the first phase conclusively determined liability, leaving only the remedy to be decided in the second phase—creating a “natural break between two separate phases of the proceedings.”

Here, by contrast, Phase I established only the legal framework. The Board still had to apply that framework to the Phase II evidence before deciding what royalties were payable. The Court also noted that the Board could revisit its Phase I conclusions if the Phase II evidence significantly called them into question.

In short, “Phase I and Phase II together concern the merits of the proceeding.” Completing the first phase therefore did not transform the Phase I ruling into a final decision.

2. No Exceptional Circumstances Justified Immediate Review

As the Phase I ruling was interlocutory, the doctrine of prematurity required SOCAN to wait until the Board completed the proceeding before seeking judicial review.

The Court confirmed that departures from the doctrine remain exceedingly rare. An exception will arise only where waiting would result in consequences so “immediate and radical” that they would call the rule of law into question. Even constitutional or jurisdictional issues do not, on their own, meet this standard.

This strict approach helps prevent piecemeal litigation and preserves the role Parliament assigned to administrative decision-makers.

The Court concluded that SOCAN fell well short of this demanding standard. SOCAN remained free to advance its arguments before the Board and, if necessary, challenge any adverse conclusions after the Board issued its final tariff decision.

Key takeaway

SOCAN confirms that where prematurity is sufficiently clear, a court may dismiss an application for judicial review on a preliminary motion to strike, despite the high threshold for doing so.