8/19/2019 BC's Memorandum of Fact and Law - 19 Feb 2016 - Filed 22 Feb 2016 Searchable
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Cotut
File
No.
A-293-15
FEDERAL COURT
OF
APPEAL
BET 'EEN;
The
Canadian
Copyright
Licensing
Agency
(Operating
as
Access
Copyright)
Applicant
Her
Majesty
The
Queen
in
Right
of
the Province
of
Alberta,
Her
Majesty
The
Queen
in
Right
of the
Province
ofManitoba,
The
Province
of
New Brunswick,
Her
Majesty
in
Right
of
Newfoundland and
Labrador,
Her
Majesty
The
Queen
in
Right
of
the
Province of
Nova
Scotia,
The
Government of
Nunavut,
Her
Majesty
The
Queen
in
Right
of
the
Province ofPrince
Edward
Island,
Her
Majesty
The
Queen
in
Right
of the
Province of
Saskatchewan,
Government
of
Yukon and
Her
Majesty
The
Queen
in
Right
of
the Province
ofBritish
Columbia
Respondents
MEMORANDUM OF FACT
AND
LA 'F
HKR
MAJESTY
THK OUEKN
IN RIGHT OF
THE
PROVINCE
OF
BRITISH
COLUMBIA
1, This is the
Memorandum
of
Fact
and Law
of
the
Respondent,
Her
Majesty
The
Queen
in
Right
of
the Province
ofBritish
Columbia
( BC' ).
2.
This
proceeding
is
an
application
by
The
Canadian
Copyright
Licensing
Agency
(
Access
Copyright
)
for
judicial
review of the
decision
of the
Copyright
Board
( the
Board
)
dated
May
22,
2015
in
respect
of two
proposed
tariffs ofAccess
Copyright.
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3.
Access
Copyright
is a collective
society
within the
meaning
of section
70.1(a}
of the
Copyright
Act
( the
Act },
On March
31,
2004 Access
Copyright
filed a
proposed
tariff with the
Board
pursuant
to
sections
70.12
and
70.13of the Act with
respect
to royalties that it
proposed
to
collect,
for
the
years
2005
to
2009,
for
the
reprographic
reproduction,
in
Canada,
of
storks
in
its
repertoire
by
employees
of
provincial
and temtorial
governments,
other than
Quebec
{
he First
Tariff
).
This
was
the first
proposed
tariff ofAccess
Copyright
for
that class of
use.
The
First Tariff
was
published
in the
Supplement
to the
Canada
Gazette on
April 24,
2004.
4. Pursuant to section
67.1(5)
of the
Act,
BC
filed a
Statement of
Objections
to the First
Tariff
on
June
17,
2004.
On
March
31,
2009,
not
having
taken
any
further
steps
in
respect
of
the First
Tariff,
Access
Copyright filed
a
second
proposed
tariff
with
the
Board
pursuant
to
sections
70.12
and
70.13
of
the Act with
respect
to
royalties
that
it
proposed
to
collect, for the
years
2010 to
2014,
for
the
reprographic
reproduction,
in
Canada,
ofworks in its
repertoire
by
employees
of
provincial
and
territorial
governments,
other than
Quebec
{
he Second
Tariff
).
The Second Tariff was
published
in
the
Supplement
to
the
Canada
Gazette
on
May 9,
2009.
The
Second Tariff differed from
the First
Tariff in
that
it also
included
the
making
of
digital
copies
as a
class of licensed
copying.
5.
BC
filed
a
Statement of
Objections to
the
Second
Tariff with the Board
on
July
6,
2009.
Paragraph
7
of
BC's
Statement of
Objections
stated
B.C,
objects
to
the tariff
as
a
whole
as
extending
beyond
the
rights
under
section
3 of the
Copyright
Act
which
Access
Copyright
has the
right
to
license.
In
paragraph
9
of
its
Statement
of
Objections,
B.C.
objected
to
the
definition
of
Copy
as
being
overly
broad as
including
activities
beyond
the
rights
administered
by
Access
Copyright.
6.
Paragraph
14
of
BC's
Statement of
Objections
filed
July
6„2009
with
the
Board
stated,
B,C,
objects
to section
5
of
the
proposed
tariff,
'Additional
Limitations
Regarding Digital
Copies',
Notice of
Application
dated
June
22,
2015,
Applicant's Record
(' AR ),
Vol.
1,
Tab
1,
p.
1.
Applicant's
Supplementary
Application
Record
{ SAR ),
Vol.
1,
Tab
H,
p.
878.
SAR,
Vol.
I,
Tab
I,
p.
885.
SAR,
Vol.
1,
Tab
J,
p.
896.
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as
being
unreasonable
and
overly broad,
and
not
taking
into account insubstantial
reproductions and
exempted
activities
under the
Copyright
Act.
'ithout
limiting
the
foregoing,
the
acts
required
under
sub-section
5(d)
are unreasonable and unjustified
having
regard
to
the license
granted
by
the
tariff
and
the
rights
which
Access
Copyright
is
licensing. 'ub-section
5(d)
of
the
Second
Tariff,
as
referred
to at
paragraph
151
of the
Board's
Decision, is
referred
to hereafter as
the
Deletion
Provision .
The Deletion Provision in
paragraph
5(d)
of
the
Second Tariff
states that
where the
Licensee is
no
longer
covered
by
a
tariff
for
the
making
and distribution of
Digital
Copies,
the
Licensee shall
immediately cease
to
use Digital
Copies
of
Published
'orks
in Access
Copyright's
Repertoire,
delete
from
their hard
drives,
servers or
storage
area networks,
and make reasonable
efforts
to
delete from
any
other
device
or
medium
capable
of
storing
Digital
Copies,
those
Digital
Copies
and
upon written
request from
Access
Copyright
shall
certify
that
it
has
done
so.
7,
BC
had
therefore
specifically
raised the
issue
of the
propriety
of
the
Deletion
Provision
and
the
proper
scope
of
the
rights
which
Access
Copyright
was
purporting
to
license
as
early
as
July
6,
2009.
8.
The
governments
of
Alberta,
Saskatchewan, Manitoba,
Yukon, Nunavut, Nova
Scotia,
Prince
Edward
Island,
New Brunswick and
Newfoundland
and
Labrador
elected to
be
jointly
represented.
They
are referred to
collectively herein as
the
Consortium ,
BC
elected to
be
represented
on its
own.
BC
and the Consortium
are,
collectively,
the
Objectors
and the Objectors
and Access
Copyright
are referred
to
herein
as
the
Parties .
9.
On
March
2,
2010,
the Board issued
a
Directive
on Procedure to
govern
the
conduct of
this
proceeding.
The Directive
provided
at
paragraph
5
for
the
filing
of
the
parties'tatements
of
Case
listing
the
parties'itnesses,
their
witness
statements,
expert
reports
and all other
evidence
upon
which the
party
intends
to
rely. In
particular, the
Directive on Procedure
required
in paragraph 5
(iv)
that
the
participants
include all
other evidence
on
which
they
intend to
rely
in
the
Statement
ofCase.
Paragraph
6
provided
for
reply
evidence to
be filed
by
the
collective
society
by
the date
set for that
'AR„Vok
1,
Tab
J,
p.
897.
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purpose,
only
in
response
to
the evidence
filed
by
the
Objectors,
which
does not
include evidence
that
could
have been
filed
with the
case
in
chief.
Paragraph
9
of
the
Directive on Procedure also
provided
restrictions on
the
filing
of
documents
during
the hearing.
10.
In
2010,
Access
Copyright
and the
Objectors
agreed
to conduct
a
study
of
the volume
and
nature
of
published
works
reproduced
by
government
employees
(the
Volume
Study
).
On
December
17,
2010,
the Board
ordered that
a pretest
be
carried out
in order
to
assess the
overall
reliability
of
the Volume
Study.
The
pre-test
took
place
between
May 6,
2011
and
June
20,
2011 and
was
considered
satisfactory to
the
Parties,
11. Access
Copyright,
BC
and the
Consortium
concluded a
Memorandum
of
Understanding
dated February
17,
2011 to
govern
the conduct
of
the
Volume
Study.
The
results
of
the
Volume
Study
would
be
used to
provide
an
estimate
of the annual
volume of compensable
copying
of
published
works
in
the Access Copyright's repertoire
by
employees
of
the provincial
and territorial
governments
to
be
used
in
estimating
the
fair
market value of the
annual
royalty
for the First and
Second
Tariffs.
The Volume
Study
was
conducted in two
phases,
Phase I and Phase
II,
which were
completed
by
December 2011.
12.
The
parties
filed
their
Statements
of
Case
in advance of the
oral
hearing
which was
scheduled
for October
23,
2012.
BC's
Statement of
Case,
filed
August
31,
2009,
contained the witness
statement
of
Victoria Lester„Director
of
BC's
Intellectual
Property
Program.
Appendix
A
to
BC's
Statement of
Case
set
out
BC's
Additional
Changes
to
the
Proposed
Tariff.
In
paragraph
27
of
Appendix
A
to
BC's
Statement
of
Case,
BC
again
argued
against
the
Deletion
Clause as
follows:
Regarding Section
5,
'Additional Limitations
Regarding
Digital
Copies'f
the
Proposed
2010
Tariff,
B.C.
submits
that,
the Licensee
having
been licensed
to
make
digital
copies,
requiring
destruction
of
such
copies
when
a
tariff
has
expired
is
improper
and
unreasonable.
The
provision
SAR,
Vol.
1,
Tab
I,
p.
889.
'AR,
Vol,
1,
Tab
K,
pp.
956-958.
Board Decision,
para.
9,
AR,
Vol,
1,
Tab
4,
p.
3.
Consortium
Respondents'ecord
( CRR ),
Vol.
II,
Tab
B8,
p.
374.
4
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should
therefore be
removed. 'aragraph
36
of
Ms.
Lester's
witness
statement
repeated
that
submission
and in
her
oral
testimony
at the
hearing,
Ms.
Lester
affirmed
the truth of
that
state-
ment.'ccess
Copyright
chose
not
to
cross-examine
Ms.
Lester on
her evidence
concerning
the
impropriety
and
unreasonableness
of
the
Deletion Provision.
13. In
its
May 4,
2012 Statement
of
Case,
Access
Copyright
chose
not
to
rely
on
the results
obtained
in the
jointly
designed
Volume
Study,
which showed
that government
employees
do
relatively
little
photocopying.'nstead,
Access
Copyright
proposed
a
tariff-setting
methodology
that
relied on
a
market
comparable
approach
based
on
royalty
rates
it
had
previously
negotiated
with the
federal
government,
the
governments
ofAlberta,
Saskatchewan and Ontario,
and an
agreement
between
Copibec
(a
related
copyright
collective based in
Quebec)
and the government of
Quebec.'
14.
In
its Statement
of
Case,
Access
Copyright
provided
evidence
of
its
inability
to
license
digital
copying
without the
Deletion Provision.
As
Exhibit
AC-2E
to
its Statement
of
Case,
Access
Copyright
provided
copies
of
its
standard
affiliation agreements
with
its
authors and
publisher
affiliates.
Both
types
of
standard
agreements
expressly
prohibit
Access
Copyright
from
licensing
digital
copying
of
published
works
in the
absence of the
Deletion
Provision.
Access
Copyright's
Standard
Affiliation
Agreements
promise
to
its
affiliates in
Appendix
A that
e
will...
provide
for
the deletion
of
all
digital
files
no
later
than
the termination
of
our
licence.
This
promise
is
made
both
for print-to-digital
uses
(pages
10, 22)
and
digital-to-digital
uses
(pages
11,
23).
It was
apparent
therefore since
the outset of the
proceedings
that
failure to
include
the Deletion Provision
would invalidate the license,
as was later
argued
by
Access
Copyright
in favour of
retaining it,
in
letters
to the Board dated
January
18,
2013
and
April 26,
2013 described
b eow 'R
Vol.
2,
Tab
7,
p,
418.
CRR,
Vol. II,
Tab
B2,
pp.
231-232.
Public
Transcript,
Vol.
8,
p.
1760;
CRR,
Vol.
II,
Tab
F,
p.
504,
Board Decision,
para.
515,
AR,
Vol,
1,
Tab
4,
p.
149.
Statement
of
Case,
Exhibit
AC-1,
SAR,
Vol.
1,
T'ab
M,
p.
982.
Exhibit
AC-2E,
Standard
Affiliation
Agreements,
Appendix A,
s.
3A(i)(ii)
and
s.
3B(i)(ii),
AR„
Vol,
2,
Tab
9,
pp,
455,456, 467,
468.
Exhibit
AC-26,
p,
6,
AR,
Vol.
2,
Tab
12,
p.
603;
Exhibit
AC-28,
p.
9,
AR,
Vol,
2,
Tab
15,
p,
642,
-5-
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15. The
hearing
began
on
October
23,
2012 and lasted
8
days,
including
final
arguments.
The
record
was not
perfected
until
August 28,
2014 as the
Board
required
the Parties
to
provide
further
information and
perform
additional
analysis
and
calculations.
16.
On
October
24,
2012,
the
Board's
counsel delivered a
Tariff
Wording Process
Note
to the
parties
setting
out
the informal
process
that
the Board intended
to
implement
to deal with tariff
wording
and
administrative provisions.'he
parties
other than BC had
not
addressed
issues
with
the Tariff
Wording
in their
Statements ofCase.
Consequently
the
process specifically
directed
Access
Copyright
to
confirm
to the
Board
and
the
Objectors
the
extent to
which the
tariff
wording
and administrative
provisions
of the
original
proposed
statements should be used
in
the certified
tariff.
Access
will inform the
Board
and
the
objectors
of
any
changes
it
wishes
to propose.
Access
will also
explain
why
the Board should
accept
the
proposals
ofAccess on
tariff
wording
and
administrative provisions. It will address the
wording
and administrative issues
already
raised
by
the
objectors,
and
especially
those
raised
in
paragraphs
23 to
33
ofExhibit
BC-1. 's
noted
above,
paragraph
27
of
Appendix
A
to Exhibit
BC-1
dealt
with
BC's
objections
to
the
Deletion
Provision.
The
process
then
provided
for submissions
from
the
Objectors,
and
a
further
response
from Access
Copyright.
Counsel for the Parties were
given
the
opportunity
to
discuss the
process
and timelines,
following
which the
Hoard's
Order
of
November
26,
2012
was
issued. That
Order
of
the
Hoard
set a
schedule
governing
the
exchange
of
information
and
arguments
concerning
the
tariffs'dministrative
provisions.
Pursuant
to
the
Board's
Order of
November
26,
2012
the Parties
exchanged
submis-
sions
in
the
period
January
to
April,
2013.
17. On
January
18,
2013,
Access
Copyright
filed its submissions
concerning
the
tariffs'dminis-
trative
provisions. With
respect
to the Deletion
Provision
it
stated:
Access
Copyright
also notes that
the deletion of
digital
files
following the termination of a licence is
a
condition of
the
grant
of
rights
provided
by
Access
Copyright's affiliates
to
Access
Copyright.
See
AC-2E,
Appendix
A,
3A{i)(ii)
SAR,
Vol.
1,
Tab
24T,
p.
1051.
SAR,
Vol.
1,
Tab
24T,
p.
1051-1052.
AR,
Vol.
2,
Tab
11,
p.
597.
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and
3B(i)(ii)
which
state that
Access
Copyright
will
'provide
for deletion of all
digital
files no later
than
the
termination
of
our
licence'...,
Based on the
grant
of
licence from
its
affiliates,
Access
Copyright
does
not
agree
to the amendment
proposed
by
BC.
18.
The
Objectors
made
their
submissions
arguing
for removal of
the Deletion Provision
on
March
28
and
29,
2013.BC maintained the
objection
to the Deletion
Provision
in
paragraphs
15 and
16
of its
submission on
the basis
that,
The
copyright
owner will
have
been
compensated
for the
making
of the
digital
copy.
The
legitimate
copy
so
made
by
the licensee then has become the
legitimate
physical
property
of
the licensee
just
as
in the
case
of a
paper
copy,
and
there is no
legal
reason
why
the licensee
should be
deprived
of
the
use
or
possession
of the
legitimately
made
copy
after
the
license
has
terminated.
The
continuing
possession
of
the
lawfully made
copy does
not
infringe
any
rights
of
the
copyright
owner
after
termination of
the license....
Further from
a
practical
standpoint
there would be no
way
for
BC
to effectively
monitor deletion of such
digital
copies
to
ensure
compliance
in the event
of
termination/expiry
of the
license.
More
importantly,
there
is the
policy
and
legislative
framework for the retention of records
by
the
BC
government
in the
Document
Disposal
Act
(RSBC 1996,
c.
99)
as described
in
paragraphs
17-22
of
BC's
Reply
legal
brief.
'he
Consortium also
argued
for removal of the
provision
and noted
that,
First,
it
is
a
practical
impossibility
for
government
offices to
track
which digital
files
in
its
possession
were made
pursuant
to a
particular
Access
Copyright
tariff. It
is
therefore
not
possible
for a government
office to
determine which
files
need to
be
deleted once the
proposed
tariff no
longer
applies.
19. Access
Copyright
filed its
reply
to
such submissions
on
April
26,
2013
and
again
stated
as
follows:
Access
Copyright
also
notes that
the
deletion of
digital
files
following
the termination
of
a
licence is
a condition
of the
grant
of
rights provided
by
Access Copyright's affiliates
to
Access
Copyright,
The evidence
that was filed
with the Board
at
the
hearing
on
this
point
is
set
out in the
January
18
Letter,
at
page
6.
Therefore,
based
on the
grant
of licence from its
affiliates, Access
Exhibit
AC-26,
p.
6,
AR,
Vol.
2,
Tab
12,
p.
603.
'xhibit
BC-12,
pp.
3-4,
AR,
Vol.
2,
Tab
14,
pp.
628-629.
Exhibit
Consortium-37,
p.
4,
AR,
Vol.
2,
Tab
13,
p.
616.
-7-
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Copyright
does not
(and
cannot)
agree
to
the
deletion
of
section 5(d). It
was clear on
the
record
by
April 26,
2013 that
the
Objectors
opposed
the
Deletion Provision and
that
removal
of
the Deletion
Provision
would
negate
Access Copyright's
affiliates'rant
of a licence of
digital
rights,
and Access
Copyright had
been
given
at
least
two
opportunities
to
make
written
submissions
on
those
issues.
20.
On December
4,
2012,
the Board issued
two
notices,
The
first,
dated December
3,
2012,
asked the Parties to
make various
calculations,
submissions
on
value,
and
to clarify
certain
statements
made
by
Access in
previous
submissions. The second
notice asked
the
Parties to
4
provide
a
legal
brief to
address
issues
related to
exceptions
to
copyright,
and
to
comment on
the
Board's
statements
regarding
Access'epertoire.
'1,
The
responses
to the
first
notice
were
completed
by
February
1,
2013,
and those to the
second
notice
by
February
22,
2013.The Parties had
completed
making
their
submissions
regarding
administrative
provisions
by
April 26,
2013.
All
were
of the
view
that a
single
tariff could
be
certified
for the entire
2005-2014
period (the
Tariff
).
22. On
March
14,
2013,
the Board
issued
a
notice in which
it
asked the
Parties to
comment
on
calculations made
by
the
Board's
staff
with
respect
to
the
appropriateness
of
using
certain data from
the Volume
Study.
It also
expressed
a
preliminary
view on
the
events
captured
in the
Volume
Study
that should be
used
in the calculation of
a
royalty
rate,
and directed the
Parties
to submit additional
data
relating
to
those
events. Those submissions were
received
by
April 30,
2013.
On
May 6,
2013,
the Board ordered Access
Copyright
and the
Objectors
to
prepare
data samples and to
analyze
the
data from these
samples
with
respect
to
compensability
and
repertoire.
23.
On
May 27,
2013„
he Consortium
wrote to
the Board
informing
it that there
remained
a
discrepancy
of
four
copying events
between
the
sample
prepared by
it
and by
Access,
Subsequently,
Exhibit
AC-28,
p.
9,
AR,
Vol.
2,
Tab
15,
p.
642.
AR,
Vol.
2,
Tab
16,
p.
655,
'R,
Vol.
2,
Tab
18,
p.
696.
AR,
Vol.
2,
Tab
23,p.
868.
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the
Parties filed an
agreement
in
which
they
agreed
that the
sample
consisted
of
291
copying
events.
The analyses
were
completed
by
August
6,
2013.
24.
On May
6,
2014,
the
Board
issued
an
Order
that
set
out
its
preliminary
view
that it
would not
include the
Deletion
Provision set
out
in section
5{d)
of
the
Second
Tariff and directed the
Parties
to
respond
to a
ntnnber
of
questions. Question
4 was
the
effect that
non-inclusion
of
this
condition
would
have
on
the
compensability
of
Digital
Copies,
including
whether Access
Copyright
could
issue
a
licence in
relation
to
the
Digital Copies
made
in
the
events
in the
Study .
25,
The Parties filed
responses
to
the
Board's
Order of
May
6,
2014 on
June
6,
2014.
Regarding
the
effect
that
non-inclusion
of
the Deletion
Provision
would
have
on
the compensability
of
Digital
Copies,
in
the
Objectors'iew,
non-inclusion of
the
Deletion Provision
would
render
the
making
of
digital
copies,
including
those made in the events
in the Volume
Study,
outside of
Access's
licence
and therefore
non-compensable.
26.
In its
June
6,
2014
responding
submission,
Access
Copyright
provided
justification
for the
Deletion Provision. Access
Copyright,
in answer to
Question
4,
reiterated its
January
28,
2013,
submission
that
the Deletion
Provision
was
a
condition of
its
grant
of
rights
from its
authors
and
publisher
affiliates. In answer to
Question
2„Access
Copyright
also
proposed
an amendment to the
provision,
Given the
date
upon
which the tariff would
likely
be
certified
(i,e.
after
December
31,
2014},
Access
Copyright
agreed
that
the Deletion
Provision
(section
5{d)}
in its
entirety
could
be
removed
from
the
tariff
to
be certified.
27.
Access
Copyright
also
advised the
Board,
in
answer to
Question
4,
that
Access
Copyright's
Board ofDirectors had authorized
the
licensing
of
digital
copies
without
the
Deletion Provision
and
that
it
would request
express
permission
from
its publisher
affiliates to
remove
the
Deletion
Provision
from
the
express grants
of
licensing
authority
in the
publisher affiliation
agreements.
In its
AR,
Vol.
1,
Tab
6A,
pp.
214-215.
AR,
Vol.
1,
Tab
6B,
pp,
231 and
242-243.
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response,
Access
Copyright
stated
that
it
has
obtained
permission
from its
Hoard
of
Directors
to
authorize the
licensing
of
Digital Copies
under the
Proposed
Tariffs
without
the condition set
out
in
section
5(d}.
Access
Copyright
will
request
express
permission
from its
affiliates
to
remove this
provision
from
its
licences
and
we
reasonably
expect
that
permission
to
be
forthcoming. 'ccess
Copyright
also
submitted that it can
issue
a licence
in
relation to
the
digital copies
made in the
events
in
the
Volume
Study
even
without the Deletion Provision,
on
the basis
that
the condition is
unlikely
to be
triggered
and
on the
basis
that
it
has
received
approval
from
its
Board ofDirectors to
remove
the provision.
28.
In its June
6,
2014
submission,
the
Consortium's
position
was
that, although
it
would
prefer
that
the
tariff
cover
digital
works,
if
Access
Copyright
was
unable
to license
digital copying without
the
Deletion Provision,
the
copying
of digital
works
should not
be
considered
compensable,
Similarly,
British
Columbia's
submission noted
that
non-inclusion
of
the
Deletion
Provision
would
render
digital
copying
outside
of the
scope
of
Access
Copyright's
licence and therefore
render
digital
copying
non-compensable.
'9,
The Parties were
permitted
to
file
responses
to
each
other's
submissions
by
way
of further
submissions
on
June
13,
2014. In its
response,
regarding
Question
4,
Access
Copyright
stated that it
had
proposed
a
reasonable
compromise
in its June
6,
2014
submission
that
recognizes
there is no
need
to
require
the
deletion of
digital
copies
where
there
is no
further
infringing
use.
30.
In its
response
to Access
Copyright
regarding
the
Board's
fourth
question,
the
Consortium
disputed
Access
Copyright's
attempt,
in
its
June
6,
2014 submission,
to
retroactively build its
repertoire
of
rights,
arguing
that:
It
is fundamentally
unfair
to
build
a
tariff
on
rights
that a
copyright
collective
does
not
have. There is
no
way
for the Board to
certify
a
fair and
equitable
tariff based on
rights
that
do not
yet
exist, Collectives could
simply
propose
tariffs
that
license
anything
and
AR,
Vol.
1,
Tab
6B,
p.
219
—
221.
AR,
Vol.
1,
Tab
6B,
pp.
221-222.
'R,
Vol.
1,
Tab
68,
p.
231 and
242-243.
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everything they
can think
of,
and
then
go
to
rights-holders
for
permission
afterwards if
they
get
a
favourable
royalty
rate certified
by
the
Board. This is an
unfair
way
to
proceed...
31.
The
Consortium
also
noted
in
its
submission
that
Access
Copyright
had not
filed
any
evidence of
permission
to
license
digital
copying
without
the Deletion
Provision,
that the
time
for
introducing
new
evidence
[was]
long
past , and that
Access
Copyright
could have
proposed
its
purported
'compromise'n
its
April 26,
2013
submission
on
the two
tariffs'dministrative
provi-
sions
when
the
issue
had
first arisen.
34
32. On
July
21,
2014,
the Board issued an Order
setting
out
its
preliminary
conclusion that
26
out
of
the
291
copying
events
identified
in the
Volume
Study were
compensable,
The
preliminary
list
of
compensable
copying
events
excluded
all
digital
copying
events.
The Board
requested
the
parties
to
make a
number
of
mathematical calculations,
which
related
to the total number
of
pages
copied,
per
FTE,
per
annum,
for each
genre
ofwork
during
the
years
covered
by
the First
and Second
Tariffs.
In
its
Order,
the Board
did
not refer
to
any
legal
conclusions it
may
have
reached, request
any
further
legal
submissions from
the
parties,
or raise the
issue
of
the
Deletion Provision.
35
33.
On
August
28,
2014,
Access
Copyright„
in addition to
providing
the mathematical
calcula-
tions
requested
by
the
Board,
filed
a
separate
letter
challenging
a
number of the
Board's
preliminary
conclusions
relating
to
the 26
compensable
copying
events. This
letter also informed the Hoard that a
majority
of the Access
Copyright's publisher
affiliates had
agreed
to
waive
the
Deletion Provision
with retroactive effect to
January
1,
2010,
the start date
of
the Second
Tariff.
34.
On
September
2,
2014,
the
Consortium and British Columbia
jointly
wmte to the
Board
objecting
to
Access
Copyright's
letter
of
August 28,
2014
on the
ground
that
it
went
beyond
the
AR,
Vol.
1,
Tab
68,
p.
249.
AR,
Vol.
1„Tab
6B,
p.
252.
AR,
Vol.
1,
Tab
6B,
pp,
253 and
255.
'R,
Vol.
1,
Tab
6C,
p.
270.
AR,
Vol.
1,
Tab
6D,
p.
273.
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mathematical
calculations
requested
by
the Board in its
Order
of
July
21,
2014.
This
letter
requested
that Access Copyright's submissions
be ruled
procedurally
inadmissible. The
Board
subsequently
provided
Access
Copyright
with an
opportunity
to
respond,
with a further
right
of
reply
by
the
Consortium
and
British Columbia.
35. On
September
11,
2014,
the Board issued a
Ruling
that the representations in Access
Copyright's
letter
of
August
28,
2014,
were inadmissible
for
three reasons.
First,
Access
Copyright's
submissions on this
point
had
not
been
requested
by
the
Board
and were irrelevant to the calculations
sought
by
the Board.
Second, Access
Copyright's
submissions
came almost two
years
after
the
conclusion of
final
oral
arguments. And
third,
the
Applicant's
submissions were
entirely speculative,
The
Board
ruled
...we
dismiss
Access'ttempt
to
adduce new
evidence. The
issue
of
digital copying
was
live
from
the
beginning
of
the
2010-2014
tariff
proceedings.
In
the
sense that
the
evidence
can
be considered
to
be
new,
it is
only
so because Access has
waited
this
long
to seek
waivers
to the
provisions
in
its
agreement
with
affiliates.
Access
began
seeking
these
waivers
only
after
the Board
put
questions
to the
Parties
in relation to
s.5(d)
of the
2010-2014
Proposed
Tariff
in an
attempt
to
change
the
scope
of
its
authority
to
license
digital
uses,
Nothing
prevented
Access
from
doing
so
at
an earlier
stage,
36. The Board
released
its Decision on
May
22,
2015
certifying
a
single
tariff
for the
2005-2014
period.
The
Hoard
rejected
the market
comparable
approach
advocated
by
Access
Copyright
and
instead
applied
the
VTV
(volume times
value)
approach using
the
data from the
Volume
Study.
37.
W'th
respect to
the Deletion
Provision, the
Board
did not include
that
provision
in the
Tariff,
for reasons
that are set out at
length
in its
decision,
The effect of
exclusion
was
explained as
0
follows
at
paragraphs
164
through 167
of
the
Board's
decision:
AR,
Vol.
1,
Tab
6E,
p,
282,
AR,
Vol.
1,
Tab
6E,
p.
285.
AR,
Vol.
1,
Tab
6F„p.
293.
Board
Decision,
para.
156-159,
AR,
Vol.
1,
Tab
4,
pp.
59-60.
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[164]
As
Access itself
stated,
' the
deletion of
digital
files following the termination
of
a
licence
is a
condition
of
the
grant
of
rights
provided
by
Access
Copyright's
affiliates
to
Access
Copyright. e believe this
to
be a
correct interpretation
of the effect
of
A g re m e t
with
affiliates,
which states
that
Access
may
license
print-to-digital
and
digital-to-digital
copying,
provided
that Access provide[s]
for
the
deletion of all
digital
files
no later than the termination of
our
licence.
[165]
It
is
clear from
this
response
that Access did
not,
at
the
time it filed
the
proposed
tariffs,
and still
does
not,
have the
authorization
from
all
—
or
perhaps
any
—
of
its
affiliates to license
the
making
of
digital copies
without such
a deletion requirement. Whether
the
Board of
Directors
has
authorized Access to do
something
or not
is
not sufficient.
Access'uthority
to
license
the
copying
of
a
work flows
from
a
licence
granted
by the owner
of
copyright;
~here
it
does not
have
such
a licence,
it has no
authority
to
license the
use itself.
Access'oard
of
Directors
cannot
grant
to
Access
rights
which
owners of
copyright
did
not
themselves
grant
to
it.
[166]
This
finding
does not
deprive
the
copyright
holder in the
works
so
copied
of
any
rights
and remedies
she
may
otherwise have.
These events
simply
represent
copying
for
which this
Tariff does not
provide
a licence,
and,
as a
result,
for which Access cannot collect
royalties
under
this
Tariff.
C.
Conclusion
[167]
Since
Access cannot
grant
a licence for the
making
of
digital
copies
without
the
presence
of
the Deletion
Provision, since
the Tariff
cannot
have
the
effect
of
providing
a
licence for uses that Access
itself
cannot
grant,
and since we
have
excluded
paragraph
5(d)
from
the
2010
Proposed Tariff,
the
making
of
digital
copies
is not
an
act that will
be
permitted
under the
Tariff,
and is
thus
not
compensable
for the
purposes
of establishing a
royalty
rate.
'8.
The
Board also excluded
from
compensable
events in
the Volume
Study
five
copying
events
on the
basis
that
they
exceeded
the
copying
limits
permitted
under the
proposed
tariffs. The
five
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events
in
question
were
77,
119, 149,
180
and
234.
At
paragraph
171
and 172 the Hoard
stated
Copying
events where
the
work
copied
was within
Access'epertoire
must be
authorized under
the
Tariff for those
events
to
be compensable.
'here
the Tariff
has
limitations
whereby a
copying
event
in
the
Volume
Study would
not
be
permitted„
that event
is
not
compensable
for
the purposes
of
determining
the
royalty
rate for
this
Tariff.
Such
acts
of
copying
are
not
covered
by
the
Tariff,
and
remain
potential
acts of
copyright
infringement.
[172]To
count such
copying
as
compensable
would
have the
effect
of
making
the
Objectors
pay
for activities that
the
Tariff
does not
authorize.
Therefore, those events
that
would
not
have
been
authorized
by
the
Tariff,
had it
been in
place
at
the
time
when
the
copies
were
made,
are not
compensable
for the
purposes
of
the
Tariff.
39.
As
explained
at
paragraphs
173-176
of
the Board
Decision,
in
relation
to
books,
the
2010
Proposed
Tariff does
not
authorize the
copying
ofmore than 10
per
cent of a
work,
unless such
copying
is of
an entire
chapter
from a
book,
in which case
it does
not authorize
the
copying
of
more
than 20
per
cent of that book. In relation
to
genres
ofworks
not
identified in
paragraph
3(a),
the 2010
Proposed
Tariff does not
authorize the
copying
of
more
than
10
per
cent
of
that
work.
The
five
events
excluded
by
the
Board were
outside those
limits and
so
were
not
authorized
under
the
tariff
and hence
not
compensable,
and could
potentially
be
acts
of
copyright
infringement.
II.POINTS
IN ISSUE
40.
Access
Copyright
has
listed at Part Il of its Memorandum of Fact and Law the seven
points
which
it
considers to
be in
issue
in
this
judicial
review
application,
as
follows:
1. hatis the standard
of
review
to be
applied
with
respect
to
the
challenges
to the
Deci-
sion
advanced
by
Access
Copyright?
AR,
Vol.
1,
Tab
4,
pp.
61-62.
Board
Decision,
Table
2, AR,
Vol.
1,
Tab
4,
p.170.
AR,
Vol.
1,
Tab
4,
p.
63,
AR,
Vol.
1,
Tab
4,
p.
63-64.
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2.
Did the
Board
exceed its
jurisdiction
by
removing
the
Deletion
Provision, the effect of
which was
removing
the
making
of
digital copies
as a
class of use
under the second
tariff
(2010-2014)'?
3.
as
Access
Copyright
denied
procedural fairness
in
the
manner
in
which
the
issue
of
its
authority
to
license
digital
copying
was
first
raised;
and was Access
Copyright
denied
a
meaningful
opportunity
to
present
its
evidence
responsive to
the
issue
and
have
such
evi-
dence
fully
and
fairly considered
by
the
Board?
4. Was
Access
Copyright
denied
procedural
fairness in
the manner
in which
the Board
ex-
cluded
five
copying
events
on the basis that
they
exceeded the
copying
limits under the pro-
posed
tariffs,
despite
neither the
Respondents
nor
the Board ever
having
raised
the
issue
pri-
or,
during
or
after the
hearing
?
5.
Was the
Board correct
in
concluding
that the issue of
what
constitutes
a
substantial
part
of a
work
may
be determined
solely
on
a quantitative
assessment
of
the
portions
copied
and
without
regard
to
whether
a substantial
part
of the
author's
skill and
judgment
has
been cop-
1ed?
6. asthe
Board
correct in
assessing
fair
dealing
without
regard
to the
recognized
eviden-
tial and
persuasive
burdens
or
misapplying
those burdens
given
the
evidence,
or absence
of
evidence„before it?
7. Was
the Board correct
in
determining
that
fair
dealing
is
to
be
assessed
without
consider-
ing
the
public
interest
in
balancing
the
objectives
of
the
Act;
that fairness
is
to be
assessed
in
an
atomistic
and
isolated
view
of
the fairness
factors;
and
that
the
qualitative nature
of
the
amount
of
the
dealing
and the
aggregate
volume of
copying
are
not
to be
considered
in the
fairness
assessment?
41.
While BC does
not
agree
that the
foregoing
list
accurately
and
precisely
outlines
the
points
in
issue,
it will
respond
to
each
in
turn with
any
required
clarification
of
the
issues.
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III.
SUBMISSIONS
A. Standard of
Review
42. As
directed
by
the
Supreme
Court of Canada in
Canadian Broadcasting
Corp.
v. MDRAC
2003
Inc.,
2015
SCC 57
[ CBC j
at
paragraph
42, every
standard
of review
analysis
requires
identification
of
the
issues under review,
citing
Dunsmuir v. Sew Brunswick,
2008 SCC
9,
[2008j
1
S.C.R.
190
[ Dunsm~ir j
at
paras.
51-64.
43.
BC
will therefore address the
appropriate
standard
of review in
connection with each of the
points
in
issue
in
turn.
In
summary,
BC
submits that
the
standard
of
review
of
the
Board's
Decision
is the
reasonableness standard
in
respect
of issues
2,
5,
6
and 7
above,
and
the
correctness
standard in
respect
of issues 3
and
4,
albeit
applied
in the context
of the
Board's
proceedings.
B.
Board's
Jurisdiction
to
Not Include
the Deletion
Provision
i'1
Standard of
Review
44. At
paragraph
47(a}
of
Access
Copyright's Factum,
Access
Copyright
cites Dunsmuir as
authority
for
the
proposition
that
the
appropriate
standard
of
review
with
respect
to
issues
concern-
ing
the
Board's
jurisdiction to
alter
the
terms attached to
the
classes of use
prescribed
by
Access
Copyright
in
the
proposed
tariff
is the
standard
of correctness.
The
Supreme
Court of Canada in
Dunsmuir did indeed state that
[ajdministrative
bodies
must
also
be
correct in their
determinations
of true
questions
of jurisdiction
or vires... true jurisdictional
questions
arise where the tribunal
must
explicitly
determine whether
its
statutory
grant
of
power
gives
it the
authority
to
decide
a
particular
matter
(paragraph
59).
Subsequent
to Dunsmuir, however,
the
Supreme
Court of
Canada
has
clarified the
concept
of
true
jurisdictional
question
that was raised in
Dunsmuir,
and the
applicable
standard
of review that should attach to such
questions.
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45.
In Canada (Canadian
Human
Rights
Commission)
v.
Canada
(Attorney
General),
2011 SCC
53, [2011j
3 S.C.R.
471,
the
Supreme
Court of
Canada
held that
issues which have
previously
been
considered to be
jurisdictional
should now
be
dealt
with
under
the
standard
of review
analysis
in
order
to
determine whether
a
standard
of
correctness or
of
reasonableness
should
apply, because
the
decision
maker
may
have
expertise
in
the
matter and be in a better
position
than
a court to determine
the
scope
of
its
jurisdiction.
If the
issue
relates
to
the interpretation and
application
of
the
tribunal's
own statute,
is within
its
expertise
and
does not raise
issues of
general
legal
importance„
the tribunal
will
be
entitled to deference and the standard of reasonableness will
generally
apply
and the Tribunal
will be
entitled
to deference
{paragraph
24).
46.
The
Supreme
Court
of
Canada
in
Alberta
(Information
and Privacy
Commissioner)
v.
Alberta
Teachers
'ssociation,
2011 SCC
61,
[2011j
3
S.C.R.
654 went
further and held
at
paragraph
39
that
[tjrue
questions
of
jurisdiction
are
narro~
and will be exceptional.
hen
considering a
decision of
an
administrative tribunal
interpreting
or
applying
its home statute,
it should be
presumed
that the
appropriate
standard
of
review
is reasonableness. As
long
as the
true
question
of
jurisdiction
category
remains,
the
party
seeking
to
invoke
it must be
required
to
demonstrate
why
the court
should not review a
tribunal's
interpretation of its home
statute
on
the deferential
standard of
reasonableness .
47.
The
Supreme
Court
of Canada in McI.ean
v. British
Columbia (Securities
Commission),
2013
SCC
67, [2013j
3
S.C.R,
895
at
paragraphs
19-33
affirmed the
presumption
that the
standard
of
reasonableness
applied
to a decision
marker's
interpretation of
its own
jurisdiction,
but held that the
presumption
was
not carved
in
stone
but
rather
rebuttable. It
is
the appellant's
burden
to
demonstrate
that the standard of correctness
should
apply
because the
issue
at
hand is
one that falls into the
exceptional
categories
warranting
correctness review.
48. Most
recently
in
CBC,
supra,
at
para.
39,
the
Supreme
Court
affirmed that
approach,
citing
Alberta
(Information
and
Privacy
Commissioner) v. Alberta Tea~hers
'ssociation,
supra
at
para.
34
that:
'hile
it
is
possible
to frame
any
interpretation
of
a
tribunal's
home
statute as a
question
of
8/19/2019 BC's Memorandum of Fact and Law - 19 Feb 2016 - Filed 22 Feb 2016 Searchable
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whether
the
tribunal
has the
jurisdiction
to
take
a
particular
action,
this
Court
has
rejected
this
definition
of
jurisdiction in
the context of
standard
of review and
emphasized
that
the
category
of
'true
questions
of
jurisdiction',
if
it exists at
all,
is
narro~.
49.
Since
the
Copyright
Board in
this
case
is
interpreting
its
home
statute,
the
Copyright
Act
(in
particular
section
70,15
of the
Copyright
Act in
respect
of its
authority
to
make
alterations
to
the
royalties
and
to
the terms and conditions related thereto
as
the Board considers necessary }, the
presumption
is
that the
appropriate
standard
of review
is
reasonableness. Given
that
Access
Copyright
has not
rebutted that
presumption
by
sho~ing
that this issue
is
one of the
exceptional
instances
of
a
true
question
of
jurisdiction,
the
applicable
standard of review
in
respect
to this issue
should
be reasonableness.
50.
See
also
Neighbouring Rights
Collective
of
Canada v.
Society
of
Composers,
Authors
and
Music
Publishers
of
Canada,
2003 FCA
302,
I'2004]
1
F'CR
303,
at
para
63:
As
for the
purpose
of
subsection
68(3}
itself,
Parliament
presumably
intended
it to
equip
the
Board
with the
powers
necessary
to enable
it
to
implement
its
decisions in an
effective
and
efficient
manner.
Hence,
it
conferred
a
very
wide discretion
on
the
Board
to
certify
royalties, including,
in the
case
of
NRCC
tariffs, the
power
to
take
into account such factors as it
considers
appropriate.
Review
on a standard
of
correctness
would
be
incompatible
with these
purposes.
ii)
Did the Board Have
Jurisdiction to
Not
Include the
Deletion Provision
l
51. Access
Copyright
characterizes
this
issue as whether the Board
had
jurisdiction to
remove
the
Deletion Provision
from
the
proposed
tariff,
The
issue is
not whether
the Board had
jurisdiction
to
remove
digital
copying
as a class of
use
from
the
Tariff„since
that is not what the
Board did. The
Board
concluded
that
the
Deletion Provision
was
not
a
fair
and
reasonable
term
to be
included
in the
Tariff,
and
so
did
not include
it.
The inevitable
result
of that decision
was
that
digital
copying
of
works
for the
period
of the
Tariff
were
not
within
Access Copyright's
repertoire and hence were
not
compensable.
As
clearly
indicated
by
the
Board, digital
copying
is
open
to Access
Copyright
as a
8/19/2019 BC's Memorandum of Fact and Law - 19 Feb 2016 - Filed 22 Feb 2016 Searchable
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class
of
use
in future tariffs,
should such
copying
fall
within the
rights
licensed
from
its
affiliates and
reciprocal
collectives,
'5
52.
Thus
in
fulfilling
its mandate with
respect to
the
Tariff,
the
Board
decided
what
were the fair
and
reasonable
terms and
conditions of the
license granted
under the
tariff,
as
is required
of
the
Board under s.
70.15
of
the
Act
and
is
directly
within the
Board's
jurisdiction. In order to
arrive
at
the
appropriate
royalty
rate,
it
was also
necessary
for the Board to
determine which
works
covered
in
the
Volume
Study
were
within
Access
Copyright's
repertoire,
and
were
compensable,
which
again
is
squarely
within the
Board's
jurisdiction.
The
Board concluded
that once
the
fair
and
appropriate
terms of
the
Tariff were
determined, Access
had no digital
copying
within its
repertoire
at
the
relevant
times.
53.
In
fact,
recent
jurisprudence
of this Court specifically
supports
the
position
that the Hoard has
the
power
not
to include
a
term
contained in a
proposed
tariff in
carrying
out
its
mandate
of
certifying
such tariff. In
Society
of
Composers,
Authors and
Music Publishers
of
Canada
v,
Bell
Canada,
2010
FCA
139,
84 C.P.R.
(4th)
157
t Bell
Canada' ],
the issue
considered
by
the Federal
Court of
Appeal
on
judicial
review
was
whether the
Board exceeded its
jurisdiction in
certifying
Tariff
22,
but without including
in it one
of
the
tariff
Items
(the
item
that related
to
Other
Sites
)
that
was
part
of
Tariff
22.
The
Court held that
the Board
did
not
exceed its jurisdiction
by
excluding
from
the certification process
the
Item that related to
Other
Sites
and
stated:
The Board is
invested with
the
power
to
approve
a
proposed
tariff and the
duty
to
certify
it
once
approved,
In
exercising
this
function,
the Board
possesses
the
power
to make
such
al-
terations
to
the
royalties
and
to
the terms and conditions
thereto as
the Board considers
nec-
essary :
see
subsection
68(3)
of the Act.
This is
precisely
what
the Board
did.
(Paragraph 18)
'oard
Decision,
para.
170,
AR,
Vol.
1
Tab
4,
pp.
62-63.
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In
exercising
its
jurisdiction
to
approve
the
proposed
Tariff
22,
the Board found
it
necessary
to
exclude from the
certification
process
the Item
that
related
to
Other
Sites .
It
provided
abundant,
elaborate and
cogent
reasons for
this
exclusion.
(Paragraph
19)
That the
Board's
obligation
in
considering a
demand for the certification
of a
proposed
tariff
is
to
approve
and
certify
a fair and reasonable tariff
is not
disputed.
This is inherent
in
its
obligations
to balance the
competing
interests of
copyright
holders,
service
providers
and
the
public:
see
Neighbouring
Rights
Collective
of
Canada v.
Society
of
Composers,
Authors
4
Music
Publishers
of
Canada,
supra,
at
paragraph
42.
(Paragraph 25)
It is
true: subsection
68(3)
stipulates
that
the Hoard
shall
certify
the
tariffs
as approved.
However, I
cannot see
how
the
use of
the word
shall
can and
~ould
oblige
the
Boa~d to
certify
a
tariff
that it
cannot
approve
because
of a lack of or
insufficient
evidence
to
meet
the
legal
requirements for
approval.
(Paragraph 28)
Even if
I
assume,
as contended
by
SOCAN,
that
the
'Other
Sites
Item must
be seen
as
a
tar-
iff of its own
and,
therefore, that the
Board
refused
to
certify
that
tariff,
I
would conclude
for
the
reasons
already
stated that the
Board
was
justified
in
refusing
to
certify
it.
Surely„
it was
not
the intention of Parliament that the
Board
certify
an
unapproved
and
unapprovable
tariff.
(Paragraph
29)
54.
The critical
language
of
subsection
68(3)
of
the Act which
was
under
consideration in Bell
Canada is the
same as that under consideration
under s.70.15of the Act: The Board shall
certify
the
tariffs as
approved,
with such
alterations
to
the
royalties
and
to
the
terms
and conditions related
thereto as the Board
considers
necessary, having regard
to
any
objections
to
the tariffs,
55.
The
Board therefore
was
clearly acting
within its
jurisdiction
in not
including
the Deletion
Provision
in the Tariff as
being
unfair
and unreasonable. Access
Copyright
does
not
argue
on this
judicial
review
application
that
the
Board's
decision
that
the
Deletion
Provision
was
unfair and
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unreasonable was incorrect or
unreasonable.
Indeed Access
Copyright
eventually
agreed with
that
conclusion in its own submissions
to
the Board.
Having
come to
that decision, the
Board's
inevitable
conclusion
was
that the
Deletion Provision could not
be included,
and so
digital
copying
ofworks
for
the
period
of
the
Tariff
were
not
within
Access
Copyright's repertoire
and
hence
were
not
compen-
sable.
C. Breach of
the
Duty
of Procedural
Fairness
i)
Standard of Review
56.
This Court has held that the
appropriate
standard
of
review with
respect
to
issues
of
procedural
unfairness
is
the
standard
of
correctness:
Netfiix,
Inc. v.
Society
of
Composers,
Authors
and Music
Publishers
of
Canada, 2015
FCA 289
[ Netj7ix ],
at
paragraph
35,
citing Re:Sound
v.
Fitness
Industry
Council
of
Canada,
2014 FCA
48, paragraph
34
j Fitness
Industry
];
and Ehosa v.
Canada (Minister
of
Citizenship
and
Immigration),
2009 SCC
12,
paragraph
43. However
the Court
in
Netflix,
citing
Fitness
Industry,
stated
Administrative
decision
makers
enjoy
great
latitude in
setting
their
own
procedure, including
aspects
that fall within
the
scope
of
procedural
fairness
such
as whether a
request
for
adjournment
should be
granted,
the extent of disclosure
by
parties,
the
extent
of
cross-examination
that will
be
allowed
and
whether
representations
by
a
lawyer should
be
allowed,
Context
and circumstances will dictate the
breadth of
the
decision-
maker's
discretion on
any
of
these
procedural
issues,
and whether
a
breach of
the
duty
of
fairness
occurred
(Fitness
Industry,
paragraph
37).
57. Two
issues in Fitness
Industry
were
whether the
Copyright
Board
breached
the
duty
of
fairness
by
basing
Tariff 6.8 on
a
ground
that was
not
considered
during
the
hearing
and on evidence
that
Re:
Sound had no opportunity
to
address.
The
Federal
Court
of
Appeal affirmed
that
the
applicable
standard of
review
for issues of
procedural
fairness is correctness.
However, the Court
made
clear that
a reviewing court should
give
considerable
weight
to
decision-makers'iscretion
over
their procedure:
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In
short,
whether
an
agency's
procedural arrangements,
general
or
specific,
comply
with the
duty
of fairness
is for
a
reviewing
court
to
decide
on the correctness standard, but
in
making
that
determination
it must be respectful
of the
agency's choices. It
is thus
appropriate
for
a
reviewing
court
to
give
weight
to
the manner
in
which
an
agency
has sought
to
balance
maximum
participation
on
the one
hand,
and
efficient
and effective
decision-making
on the
other.
In recognition
of
the agency's
expertise,
a
degree
of
deference
to an
administrator's
procedural
choice
may
be
particularly
important
when the procedural
model of the
agency
under review differs
significantly
from the
judicial
model
with
which courts are
most
famil-
iar,
(Paragraph
42).
58. Fitness
relies on
Baker v. Canada
(Minister
of
Citizenship
and
IrnntE'gration),
1999 SCC
699,
[1999j
2 S.C.R.817
[ Baker j,
at
paragraph
27,
where
the
Supreme
Court
included
the
deci-
sion-maker's
procedural
choice and
agency
practice
as factors
that courts must
take
into
account
when determining
the
contents
of the
duty
of
fairness
in
any
context. The
Court
stated
that
important
weight
must be
given
to
the choice of
procedures
made
by
the
agency
itself
and
its
institutional
constraints.
59.
Similarly, the
Supreme
Court in Council
of
Canadians with
Disabilities
v. VIA
Rail
Canada
Inc., 2007
SCC
15,
[2007j
1
S.C.R.
650
stated
at paragraph
231
that:
Considerable deference is owed to
procedural
rulings
made
by
a
tribunal with the authority
to
control its own
process.
The
determination of the
scope
and
content
of a
duty
to act
fairly
is
circumstance-specific,
and
may
well
depend
on
factors
within the expertise
and
knowledge
of
the
tribunal,
including
the nature
of
the
statutory
scheme and the expectations and
practices
of the
Agency's
constituencies.
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ii)
as
there a
Breach of
Procedural Fairness
—
Deletion Provision
60. Access
Copyright
poses
this
question
as to whether
Access
Copyright
was denied
procedural
fairness
in
the manner
in
which the
issue
of
its authority
to
license
digital
copying
was
first raised;
and
was
Access
Copyright
denied
a
meaningful
opportunity
to
present
its evidence
responsive
to the
issue and
have such
evidence
fully
and
fairly
considered
by
the
Board?
61.
Access
Copyright
as
early
as
January
18,
2013 had
clearly
raised the
issue
that it is not
authorized
to licence
any
digital
copying
of its
affiliates'orks
without
the
corresponding
require-
ment
to delete
such
digital
files
upon
termination of
the
licence.
See
paragraphs
14,
17
and
19 above.
On
Access
Copyright's own
admission
therefore, prior
to
Question
4
being
raised,
non-inclusion
of
the
Deletion Provision
would render the
making
of
Digital
Copies,
including
those
made in
the
events
in
the
Volume
Study,
outside
of
Access Copyright's
licence
and
non-compensable. That fact
was raised
by
Access
Copyright
itself as a
reason
why
the
Deletion Provision had to be included,
62.
Moreover the issue
of
the
propriety
of
the
Deletion Clause
had been
alive from
the outset of
the
Second Tariff. BC
specifically
objected
to
it in
its
Statement
of
Objections,
it was raised
in
BC's
Statement
of
Case,
BC's
witness
Victoria Lester provided
evidence
opposing
it at the
hearing,
and
the
Objectors
made
detailed
submissions on
the
objection
in
the course
of
post-hearing
submissions
on the
tariff provisions,
63.
The Board
gave
the
Parties
full
opportunity
to
make
submissions
specifically
on the
propriety
of
including
the Deletion
Provision
and the effect of its
exclusion,
The
Board's
Order ofNovember
26,
2012
set a
schedule
governing
the
exchange
of information and arguments concerning
the
t ai f f s dmin s r aiv e
provisions,
and
pursuant
to
that
Order
the
Parties
exchanged
submissions
in
the
period
January to
April,
2013,
including
submissions
specifically on
the
propriety
of
including
the
Deletion Provision.
As a
result of
those
submissions the Board,
on
May 6,
2014,
issued an
Order that
set out its
preliminary
view
that it
would
not
include
the
Deletion Provision and
directed
the
Parties
to
respond
to
a
number of
questions
including
Question
4,
as to
the
effect that
non-inclusion
of this
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condition
would
have on
the
compensability
of
Digital
Copies,
including
whether
Access
Copyright
could
issue a licence in
relation
to
the
Digital Copies
made in the
events
in the
Study .
The Parties
made full submissions in
response
on
June
6,
2014 and
made further
reply
submissions
on June
13,
64. The
Board's
Order of
July 21,
2014
listed the
26
copying
events which it
considered
compensable.
In
its
Order,
the Hoard did not
request
any
further
legal
submissions
from
the
parties,
nor
raise the issue of the
Deletion Provision. The Order
simply
directed
the Parties
to make certain
mathematical
calculations. Yet
on
August
28,
2014,
Access
Copyright,
in
addition to
providing
the
mathematical calculations
requested
by
the
Board,
filed a
separate
letter
challenging
the
Board's
preliminary
conclusions
relating to
the 26
compensable
copying
events.
65. The
Objectors
objec