Court File No.

A-29;-I S
FEDERAL COURT OF APPEAL
BETWEEN:
The Canadian Copyright Licensing Agency(Operating as Access Copyright)
Applicant
- andHer Majesty The Queen in Right of the Province of Alberta,
Her Majesty The Queen in Right ofthe Province of Manitoba,
The Province ofNew Brunswick,
Her Majesty in Right of Newfoundland and Labrador,
Her Majesty The Queen in Right ofthe Province of Nova Scotia,
The Government ofNunavut,
Her Majesty The Queen in Right of the Province ofPrince Edward Island,
Her Majesty The Queen in Right ofthe Province of Saskatchewan,
Government of Yukon and
Her Majesty 'l~he Queen in Right ofthe Province of British Cohunbia
Respondents
MEMORANDUM OF FACT AND LAW OF HER MAJESTY THE QUEEN IN RIGHT OF
THE PROVINCE OF BRITISH COLUMBIA

I. FACTS

`I1~is is the Memorandum of Fact and Law ofthe Respondent, Her Majesty T'he Queen in
Right of the Province of British Columbia("SC").

2.

This proceeding is an application by The Canadian Copyright Licensing Agency ("Access

Copyright") for judicial review ofthe decision ofthe Copyright Board ("the Board") dated May 22,
2015 in respect oftwo proposed tariffs of Access Copyright.~

3.

Access Copyright is a collective society within the meaning ofsection 70.1(a) ofthe

Copyright pct("the Act"). On March 31, 2004 Access Copyright filed a proposed tariff with the
Board pursuant to sections 70.12 and 70.13 ofthe Act with respect to royalties that it proposed to
collect, for the years 2005 to 2009,for the reprographic reproduction, in Canada, of works in its
repertoire by employees of provincial and territorial governments, other than Quebec("the First
Tariff"}. This was the first proposed tariff of Access Copyright for that class of use. The First Tariff
was published in the Supplement to the Canada Gcr.:ette on April 24, 2004.2

4.

Pursuant to section 67.1(5) ofthe 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 ofthe First
Tariff, Access Copyright filed a second proposed tariff with the Board pursuant to sections 70.12 and
70.13 ofthe Act v~~itl~ respect to royalties that it proposed to collect, for the years 2010 to 2014,for
the reprographic reproduction, in Canada, of works in its repertoire by employees of provincial and
territorial governments, other than Quebec("the SecotZd 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.3
5.

BC filed a Statement of Objectiors to the Second Tariff with the Board on July 6, 2009.

Paragraph 7 of BC's Statement of Qbjections 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.

Pazagraph 14 of BC's Statement of Objections filed .iuly 6, 2009 with the Board stated,

"B.C. objects to section 5 of the proposed tariff, `Additional Limitations Re~ardin~ Digital Copies',
'
~
3
~

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. 1, 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, Without 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."' Sub-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 Works in Access Copyright's
Repertoire, delete froth 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 .luly 6,
2009.
The governments of nlberta, 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' Statements of Case
listing the parties' witnesses, their witness statements, expert reports and all other evidence upon
.n-hich the party intends to rely. In particular, the Directive on Procedure required in paragraph 5 (iv)
that the participants include all other evidence nn which they intend to rely in the Statement of Case.
Paragraph 6 provided for reply evidence to be filed by the collective society by the date set for that

SAR, Vol. 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.g
1 1.

Access Copyright, BC and the Consortium concluded a Memorandum of Understanding

dated February 17, 20I 1 to govern the conduct of the Volume Study.9 The results ofthe Volume
Study would be used to provide an estimate of the annual vo}ume 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 ofthe 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 Au~*ust 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' of the Proposed 2010
Tariff, B.C. submits that, the Licensee having been licensed to make digital copies, requiring
destruction ofsuch copies when a tariff has expired is improper and unreasonable. The provision

6 SAR, Vol. 1, Tab I, p. 889.

SAR, Vol. 1, Tab K,pp. 956-958.
g Board Decision, pare. 9, AR, Vol. 1, Tab 4, p. 3.
9 Consortium Respondents' Record ("CRR"), Vol. II, Tab B8, p. 374.
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should therefore be removed."10 Paragraph 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 statement.~ z Access Copyright chose not to cross-examine Ms. Lester on her evidence concerning the
impropriety and unreasonableness ofthe 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.13 Instead, Access Copyright proposed atariff=setting methodology that
relied on a market comparable approach based on royalty rates it had previously negotiated with the
federal government, the governments of Alberta, Saskatchewan and Ontario, and an agreement
14
between Copibec(a related copyright collective based in Quebec)and the government of Quebec.
14.

to 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 "We ill... provide for
the deletion of all digital fles no later than the termination of our licence." This promise is made
both for print-to-digital uses(pages 10, 2?)and digital-to-digital uses(pages 11, 23).x
'It was
apparent therefore since the outset ofthe 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 below.l~

10 AR, 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.
13 Board Decision, para. 515, AR,Vol. 1, Tab 4, p. 149.
~~ Statement of Case, Exhibit AC-1, SAR, Vol. 1, Tab M,p. 982.
15 E~ibit 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.
16 Exhibit AC-26, p. 6, AR, Vol. 2, Tab 12, p. 603; Exhibit AC-28, p. 9, AR,Vol. 2, Tab 15, p. 642.
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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.

I6.

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.~~ The parties other than BC had not addressed issues with
the Tariff Wording in their Statements of Case. 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 ot7ginal 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 of Access 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 of E.chibit BC-1."ig As 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 ~~ere given the opportunity to discuss the process and timelines,
following which the Board's Order of November 26, 2012 was issued. That Order ofthe Board set a
schedule governi~~ the ~.cch~nge of information and argurrients concerning the tariffs' administrative
provisions.19 Pursuant to the Board's Order of November 26,2012 the Parties exchanged submissions in the period January to April, 2013.

17.

On January 18, 2013, Access Copyright filed its submissions concerning the tariffs' adminis-

trative provisions. With respect to the Deletion Provision it stated: "Access Copyright also notes that
the deletion of digital files following the termination ofa licence is a condition ofthe 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.
'g SAR, Vol. 1, Tab 24T, p. 1051-1052.
~~ AR, Vol. 2, Tab 11, p. 597.

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."20

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 I S 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 wily the licensee should be deprived ofthe use or possession ofthe legitimately made copy
after the license has terminated. The continuing possession ofthe lawfully made copy does not
infringe any rights of the copyright owner after termination ofthe license.... Further from a
practical standpoint there would be no way for BC to effectively monitor deletion ofsuch digital
copies to ensure compliance in the event of termination/expiry ofthe 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."21 The Consortium also argued for removal ofthe 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."22

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 gut in the
January 18 Letter, at page 6. Therefore, based on the grant of licence from its affiliates, Access

'
0 Exhibit AC-26, p. 6, AR, VoI.2, Tab 12, p. 603.
21 E~chibit BC-12, pp. 3-4, AR, Vol. 2, Tab 14, pp. 628-629.
2'` E:chibit Consortium-37, p. 4, AR, Vol. 2, Tab 13, p. 616.
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Copyright does not(and cannot) agree to the deletion of section ~(d)."23 It was clear on the record by
April 26, 2013 that the Objectors opposed the Deletion Provision and that removal ofthe Deletion
Provision would negate Access Copyright's affiliates' grant 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.2~ The second notice asked the Parties to
provide a legal brief to address issues related to exceptions to copyright, and to comment on the
Board's statements regarding Access' repertoire.25

21.

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 ofthe 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 Apri130, 2013. On May 6,2 13,
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.2~

23.

On May 27, 2013,the 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,

23
2`~
ZS
26

Exhibit AC-28, p. 9, AR, Vol. 2, Tab 15, p. 642.

AR, Vol. 2, Tab 16, p. 655.
AR, 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)ofthe Second Tariff and directed the Parties to
respond to a number 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".27
25.

The Parties filed responses to the Board's Order of May 6, 2014 on June 6, 2014. Regarding

the effect that non-inclusion ofthe Deletion Provision would have on the compensability of Digital
Copies, in the Objectors' view, non-inclusion ofthe 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.2S

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 ofits 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.''9

27.

Access Copyright also advised the Board, in answer to Question 4, that Access Copyright's

Board of Directors 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

27 AR, Vol. 1, Tab 6A, pp. 214-215.

z~ AR, Vol. 1, Tab 6B, pp. 231 and 242-243.
6~
~,-.

response, Access Copyright stated that it has "obtained permission from its Board 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." Access
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 of Directors to remove
3o
the provision.

28.

In its ,lu~1e 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.3 ~

29.

The Parties were permitted to file responses to each other's submissions by way of fi,u-ther

submissions on June 13, 2014. In its response, regarding Question 4, Access Copyright stated that it
haci proposed a "reas~nahle cnmpromise" 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."3''

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

2~ AR, Vol. 1, Tab 6B, p. 219 - 221.

3o AR, Vol. 1, Tab 6B, pp. 221-222.
31 AR, Vol. 1, Tab 6B, 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..,"33

31.

The Consortium also noted in its submission that Access Copyright had not filed anv

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' in its April 26,2013 submission on the two tariffs' administrative provi3a
sions when the issue had first arisen.

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 nunnber of pages copied, per
FTE, per annum,for each genre of work 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 ofthe Deletion Provision.3s

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 Board that a
rnajority of the Access Copyright's publisher affiliates had agreed to waive the Deletion Provision
with retroactive effect to 3anuary 1, 2010,the start date of the Second Tariff.36

34.

On September 2, 2014, the Consortium and British Columbiajointly wrote to the Board

objecting to Access Copyright's letter of August 28,2014 on the ground that it went beyond the
32

AR, Vol. 1, Tab 6B, p. 249.

AR, Vol. 1, Tab 6B, p. 252.
3a AR,
Vol. 1, Tab 6B, pp. 253 and 255.
3s
AR, Vol. 1, Tab 6C, p. 270.
36
AR, Vol. 1, Tab 6D, p. 273.
33

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mathematical calculations requested by the Board in its Order ofJuly 21, 2014. This letter requested
that Access Copyright's submissions be ruled procedurally inadmissible.37 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 Boaxd and were irrelevant to the calculations
sought by the Board. Second, Access Copyright's submissions came almost two years after the
conclusion offinal oral arguments. And third, the Applicant's submissions were entirely speculative.
The Board ruled "...we dismiss Access' attempt to adduce new evidence. The issue of digital copying
was live from the beginning ofthe 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) ofthe 2010-2014 Proposed Tariffin an attempt to
change the scope of its authority to license digital uses, Nothing prevented Access from doing so at
an earlier stage.'39

35.

Tie Boyd released its Decision on May 22,2015 certifying a single tariff for the 24U5-2014

period. The Board 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.

With 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.40 The effect of exclusion was explained as
follows at paragraphs 164 through 167 ofthe Board's decision:

37 AR, Vol. 1, Tab 6E, p. 282.

38 AR, Vol. 1, Tab 6E, p. 285.
39 AR, Vol. 1, Tab 6F, p. 293.
`~0 Board Decision, para. 156-159, AR, Vol. 1, Tab 4, pp. ~9-60.
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[164J As Access itself stated,"the deletion of digital files following the termination ofa
licence is a condition of the grant of rights provided by Access Copyright's affiliates to
Access Copyright." We believe this to be a correct interpretation ofthe effect of Access'
agreement 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' authority to
license the copying of a work flows from a licence granted by the owner of copyright; where
it does not have such a licence, it has no authority to license the use itself. Access' Board 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 ofthe 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.4 ~

38.

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, l 49, 180 and 234.42 At paragraph 171 and 172 the Board stated
"Copying events where the work copied was within Access' repertoire must be authorized under the
Tariff for those events to be cam~ensabie. Where 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 ofcopying 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 ofthe Tariff."`~3
39.

As explained at paragraphs 173-176 ofthe Board Decision, in relation to books,the 2010

Proposed Tariff does not authorize the copying of more 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 of works not identified in paragraph 3(a), the ?010
Proposed Tariff does not authorize the copying of more than 10 per cent ofthat work. The five
events excluded by the Board were outside those limits and so wrere not authorized under the tariff
and hence not c~mpensable; and could potentially be acts of copyright infringement.~4

II. POINTS IN ISSUE

40.

Access Copyright has listed at Part II 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. What is the standard ofreview to be applied with respect to the challenges to the Decision advanced by Access Copyright?

41
`~2
`~3
`~4

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, Val. 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. Was 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 evidence fully and fairly considered by the Board?
4. Was Access Copyright denied procedural fairness in the manner in which the Board excluded five copying events on the basis that they exceeded the copying limits under the proposed tariffs, despite neither the Respondents nor the Board ever having raised the issue prior, 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 copied?
6. Was the Board correct in assessing fair dealing without regard to the recognized evidential 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 considering the public interest in balancing the objectives ofthe Act; that fairness is to be assessed in
an atomistic and isolated view ofthe fairness factors; and that the qualitative nature of the
amount of the dealing and the aggregate volume ofcopying 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 ofthe 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. SODRAC

2003 Inc., 2015 SCC 57["CBC"] at paragraph 42, every standard ofreview analysis requires
identification ofthe issues under review, citing Dunsmuir v. New Brunstivick, 2008 SCG 9,[2008] 1
S.C.R. 190 ["Dunsniuir"] at paras. 51-64.

43.

BC will therefore address the appropriate standard of review in connection with each ofthe

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 ofthe Board's proceedings.

S.Board's Jurisdiction to Not Lulude the Deletion Yroti~ision

i)Standard of Review

~,

A,t paragraph 47(a) of Access copyright's Factum, Access Copyright cites Daensnza~ir as

authority for the proposition that the appropriate standard of review with respect to "issues concerning 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 "[a]dministrative bodies must also be correct in their determinations
oftrue questions ofjurisdiction 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 Caurt of Canada has
clarified the concept of"true jurisdictional question" that was raised in DunsnzuiY, and the applicable
standard of review that should attach to such questions.

-16-

45.

In Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC

53,[2011) 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 ofreview 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 nat 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 (parabraph 24).

46.

The Supreme Court of Canada in Alberta (Information and Privacy Commissiver) v. Alberta

Teache~s'Association, 2011 SCC 61,[2011] 3 S.C.R. 654 went further and held at paragraph 39 that
"[t]rue questions ofjurisdiction are narrow and will be exceptional. When considering a decision of
an administrative tribunal interpreting or applying its home statute, it should he presumed that the
appropriate standard ofreview is reasonableness. As long as the true question ofjurisdiction
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 McLean v. British Columbia (Securities Commission),2013

SCC 67,[2013] 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 ofcorrectness 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

Alberto (Information and Privacy Commissioner) r. Alberta Teachers'Association, supra at para. 34

that:"While it is possible to frame any interpretation of a tribunal's home statute as a question of
-17.,~,j

whether the tribunal has the jurisdiction to take a particular action, this Court has rejected this
definition ofjurisdiction in the context of standard ofreview and emphasized that the category of
`true questions ofjurisdiction', if it exists at all, is narrow."

49.

Since the Copyright Board in this case is interpreting its home statute, the Copyright.4ct(in

particular section 70.15 ofthe Copyright Actin respect of its authority to make "alterations to the
royalties and to the terms and conditions related thereto as thz Board considers necessary"), the
presumption is that the appropriate standard of review is reasonableness. Given that Access
Copyright has not rebutted that presumption by showing that this issue is one of the "exceptional"
instances of a true question ofjurisdiction, the applicable standard of review in respect to this issue
should be reasonableness.

50.

See also Neighbouring Rights Collective ofCanada v. Society ofComposers, Authors and

.Music Publishers ofCanada,2UU3 FCA 302,[2004] 1 FCR 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?
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 ciass 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 t~ 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 ofthe 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
-18-

,~
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 ofthe Act and is directly within the Board's jurisdiction. In order to atxive 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 Board has

the power not to include a term contained in a proposed tariff in carrying out its mandate of
certifying such tariff. In Socien~ ofComposers, Authors and ~t~firsic Publishers ofCanada v. Bell
Canada, 2010 FCA 139, 84 C.P.R.(4th) 157 ["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 alterations to the royalties and to the terms and conditions thereto as the Board considers necessary": see subsection 68(3)ofthe Act. This is precisely what the Board did.(Paragraph 18)

4 Board Decision, pars. 170, AR, Vol. 1 T'ab ~, pp. 62-63.

'
-19_J

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 ofa 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 ofcopyright holders, service providers and the
public: see Neighbouring Rights Collective ofCanada v. Society ofComposers, Authors &
~Liusie Publishers ofCanada, supra, at paragraph 42.(Paragraph 25)

It is true: subsection 68(3)stipulates that the Board shall certify the tariffs as approved.
However, I cannot see how the use cif the word "shall" can and would oblige the Board to
certify a tariff that it cannot approve because ofa Iack 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 tariff of its own and, therefore, that the Board refused to certify that tariff, 1 would conclude for
the reasons already stated that the Board wasjustified in refusing to certify it. Surely, it was
not the intention of Parli~.ment that the Board certify an unapproved and unappro~nble tariff.
(Paragraph 29)

54.

The critical language of subsection 68(3)ofthe Act which was under consideration in Bell

Canc~du is the same as that under consideration under s.70.15 ofthe 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 taxiffs.

~5.

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
-20-

'`~.
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 of works for
the period of the Tariff were not within Access Copyright's repertoire and hence were not compensable.
C.Breach of the Dutv of Procedural Fairness
i)Standard of Review

~6.

This Court has held that the appropriate standard of review with respect to "issues of

procedural unfairness" is the standard of correctness: Netflix, Inc. v. Society ofCnmposers, Authors
and Music Publishers ofCanada, 2015 FCA 289 ["Netflix"], at paragraph 35, citing Re:Soz~nd v.
Fitness Industry Council ofCanada, 2414 FCA 48, paragraph 34 ["Fitness Indz~stry "]; and Khosa v.
Canada (Minister ofCitizenship and Immigratioiz), 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 fail within the scope of procedural fairness such
as whether a request for adjournment should be granted, the extent of disclosure by parties, the
extent ofcross-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 ofthese procedural issues, and whether a breach of the duty offairness 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.B 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 ofreview for issues of procedural fairness is correctness. However,the Court
made clear that a reviewing court should give considerable weight to decision-makers' discretion
over their procedure:

-21-

In short, whether an agency's procedural arrangements, general or specific, comply with the
duty offairness 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 ofthe agency
under review differs significantly from the judicial model with which courts are most familiar.(Paragraph 42).
58.

Fitness relies on Baker v. Canada (Minister ofCitizenship and hnmzgration), 1999 SCC 699,

[1999]2 S.C.R. 817 ["Baker"], at paragraph 27, where the Supreme Court included the decision-maker's procedural choice and agency practice as factors that courts must take into account
when determining the contents of the duty offairness 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.

Similazly, the Supreme Court in Council ofCanadians with Disabilities v. VIA Rail

Canada Inc., 2007 SCC 15,[2007] 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 ofthe 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.

-22-

'~
ii) Was 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' works without the corresponding requirement to delete such digital files upon termination ofthe licence. See paragraphs 14, I7 and 19 above.
Un Access Copyright's ovv~7 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 C.opyright's licence and non-compensable. That tact
was raised by Access Copyright itself as a reason why the Deletion Provision had to be included.

62.

Moreover the issue of the propriety ofthe 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 ofpost-hearing submissions
on the tariff provisions.
63.

The Board gave the Parties full opportunity to make submissions specifically on the propriety

ofincluding the Deletion Provision and the effect of its exclusion. The Board's Order of November
26, 2012 set a schedule governing the exchange of information and arguments concerning the tariffs'
administrative provisions, and pursuant to that Order the Parties exchanged submissions in tl~e
period January to April, 2013, including submissions specifically on the propriety ofincluding the
Deletion Provision. As a result ofthose 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
-23.~

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,
2014.
64.

The Board's Order of July 21, 2014 listed the 26 copying events which it considered

compensable. In its Order, the Board 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 objected that it was improper that Access Copyright had made these further

submissions in the separate August 28, 20141etter. After giving Access Copyright a right of reply,
the Board found the letter inadmissible for the reasons set out in paragraph 35 above. It was within
Board's control over its own procedure to deny new evidence at that point, long after oral hearing
and with no possibility ofcross-examination on the new evidence. This new "evidence" was
irrelevant in any case, since it did not tie the specific digital copies in the Volume Study to the partial
retroactive waiver. Also as the Second Tariff period had almost expired, it would be unreasonable to
apply Access Copyright's purported agreement with a majority of Access Copyright's publisher
affiliates retroactively to the Volume Study, thereby affecting the royalty for the entire tariff period.
66.

The Supreme Court of Canada in Baker held that the duty of procedural fairness is flexible

and variable and depends on an appreciation of the context ofthe particular statute and the rights
affected. The purpose of the participatory rights contained within it is to ensure that administrative
decisions are made using a fair and open procedure, appropriate to the decision being made and its
statutory, institutional and social context, with an opportunity for those affected to put forward their
views and evidence fully and have them considered by the decision-maker. Several factors should be
used in determining what procedural rights the duty of fairness requires in a given set of

-24-

~~

circumstances, since "the concept of procedural fairness is eminently variable". The non-exhaustive
list of factors (the "Baker Factors")includes:
(1) the nature ofthe decision being made and the process followed in making it;
(2)the nature ofthe statutory scheme and the terms of the statute pursuant to which the body
operates:
(3)the importance ofthe decision to the individual or individuals affected;
(4)the legitimate expectations ofthe person challenging the decision; and
(5)the choices of procedure made by the agency itself, particularly when the statute leaves to the
decision-maker the ability to choose its own procedures, or when the agency has an expertise in
determining what procedures are appropriate in the circumstances.

67.

The application ofthe Baker factors to the facts of this case supports that the Board did not

breach its duty offairness by denying Access Copyright's attempt to file new evidence long after the
oral hearing.

68.

With respect to the first Baker Factor, the Federal Court in Society ofComposes, Authors

and tb~usic Publishers ofCanada v. Canada (Copyright Board),[1993)F.C.J. No. 13?(FCTD).

['`.SOCAI~'"] stated at paragraph 51 that the Board's role is "more administrative than judicial, in the
sense that its decisions so fai as they affect private rights are to be made in the public interest".

69.

With respect to the second Baker Factor, this relates to whether the decision is determinative

of the issue and further requests cannot be submitted. Here the decision only affects the 2010-2014
tariff period, already past at the time of the Board's Decision. Access Copyright has the opportunity
to now adjust its agreements with affiliates to address this problem, of its own creation, for future
tariffs.

70.

With respect to the third Baker Factor, once Access Copyright knew with some certainty that

the Deletion Provision was to be excluded, it quickly took steps to attempt to retroactively remove

-25!
~

the requirement from its affiliate agreements. Had the issue been sufficiently important it could have
taken such steps much earlier in the proceedings, as was noted by the Board.
71.

This Court, in Society ofComposers, Azrthors and Music Publishers ofCanada v. Canadian

Assn. ofInternet Providers, 2002 FCA 166,[2002]4 F.C. 3, rev'd on other grounds 2004 SCC 45,
[2004] 2 S.C.R. 427, at paragraphs 88-91 suggested that the Copyright Board's decisions pertaining
to questions raised in royalty tariff proceedings do not significantly or seriously impact the rights of
the parties for two reasons relevant to this case. First, the Board's decisions in royalty tariff
proceedings do not impinge on constitutional or quasi-constitutional rights as such, and may
therefore attract less intense judicial scrutiny since the interests at stake in such proceedings are
primarily monetary in nature. Second, the impact ofthe Board's decisions on the parties' legal rights
is limited because a copyright owner may still sue for infringement, despite a determination by the
Board that a participant is not liable to pay a royalty.

72.

With respect to the fourth Baker Factor, having had multiple opportunities during the

proceedings to make submissions and file evidence on the issue, Access Copyright could not
legitimately have expected the Board to entertain its unsolicited submissions on the Deletion
Provision, almost two years after the oral hearing and long after the designated time for making
post-hearing submissions on the issue had past. The Board's Directive on Procedure requires in
paragraph 5 (iv) that the participants include all evidence on which they intend to rely in their
Statement of Case.
73.

With respect to the fifth Baler Factor, the Soard has considerable control over its own

procedures, as necessitated by its mandate to reach timely and efficient decisions, thereby requiring
reasonable limits on the extent to which parties can make unsolicited and untimely submissions.
74.

Given the foregoing considerations, Access Copyright was not denied procedural fairness in

the way in which the issue ofthe propriety of the Deletion Clause was decided, and the effect ofthe
exclusion ofthe Deletion Clause on the campensability of digital copying events in the Volume
Study. The Board was correct, in the context of these proceedings, that its procedure was fair.
-26-

i~

iii) VVas there a Breach ofProcedural Fairness 1V'on-Compensable as Outside Scope

75.

Was Access Copyright denied procedural fairness in the manner in which the Board excluded

five copying events on the basis that they exceeded the copying limits under the proposed tariffs?

76.

The first Baker Factor is determinative in respect of this issue. The Board's process in

arriving at its decision that the five events in question were outside the scope ofthe licence granted
under the proposed tariff, and therefore non-compensable, was a straightforward application of the
terms ofthe proposed tariff to the five events in question. The Board is expected to make straightforward calculations in reaching a decision on the compensability of works in the Volume Study for
purposes of calculating a royalty, without requesting argument and evidence on every issue for each
event. This is necessitated by its mandate to reach timely and efficient decisions.'the Board having
been given by the Parties the genres ofthe works which were copied in the Volume Study as a book,
journal article etc., the number of pages copied and the total number of pages in the work, could then
determine the percentage ofthe work which was copied, and whether (subject to issues of substantiality and fair dealing)the event was compensable under paragraph 3(a)ofthe tariff, without further
argument and evidence. To require further submissions on each event at that point would render the
tariff=setting process unwieldy.

77.

The five events in question were 77, 119, 149, 180, and 234. The genre of the works copied

in these five events, as well as the number of pages in the work and the number of pages copied.
were provided by the Parties as part ofthe data generated in the Volume Study. See the Excel
Spreadsheet filed by Access Copyright as part of its July 22, 2013 submissions to the Board, in
particular columns O,BM and BO of lines 80, 122, 152, 183 and 237.`6 The percentages of the
entire works that were copied were provided to the Board by Access Copyright in Column BT of the
foregoing spreadsheet and were also provided in the analysis ofcopying events filed with the Board
by Access Copyright as part of its July 22, 2013 submissions.47 It then followed as a direct applica-

46 CRR, Vol. II, Tab C, p. 401.

"
` SAR, Vol. 1, Tab FF, pp. 1228-1232.
-27-

tion ofthe Tariff by the Board that such events were non-compensable. The rationale is explained at
paragraphs 173-176 ofthe Board Decision. The five events excluded by the Board were outside the
copying limits permitted under the tariff and so were not authorized under the tariff and hence not
compensable, and could potentially be acts of copyright infringement.48
78.

With respect to the fifth Baker Factor, the Board has considerable control over its own

procedures, as necessitated by its mandate to reach timely and efficient decisions, thereby requiring
reasonable limits on the extent to which parties need to be given the right to make submissions on
every issue.
79.

Given the foregoing considerations, Access Copyright was not denied procedural fairness in

the way the Board excluded five copying events on the basis that they exceeded the copying limits
under the proposed tariffs. The Board was correct, in the context ofthese proceedings, that its
procedure was fair.
D. The Board's Assessment of Substantiality and Fair llealin~;

i)Standard of Review -Questions of Mixed Fact and Law

80.

The last three points in issue, whether the events in the Volume Study were non-compensable

for purposes of the tariff-setting calculations, are questions of mixed fact and law. The Supreme
Court in DunsmuiY made clear that questions of fact, discretion and policy as well as questions where
the legal issues cannot be easily separated from the factual issues generally attract a standard of
reasonableness(paragraph 51).
81.

With respect to issues concerning fair dealing in particular, in CCH Canadian Ltcl. v. Law

Society of Upper Canada, 2004 SCC 13,[2004] 1 S.C.R. 399 ["CCI-1"], the Supreme Court made
clear at paragraph 52 that "[w]hether something is fair is a question of fact and depends on the facts
ofeach case." Post-CCH the Supreme Court in Alberta (Edarcation) v. Canadian Copyright

`~~ AR, Vol. 1, Tab 4, pp. 63-6~.

-28-

~~

Licensing Agency (Access Copyright), 2012 SCC 37,[2012]2 S.C.R. 345 ["Alberta (Education)"]
applied the standard of reasonableness when reviewing the Board's decision on the issue of fair
dealing (paragraph 3?). Rothstein J. who wrote the dissenting decision in Alberta (Education)further
noted that "[t]he application ofthese factors to the facts of each case by the Copyright Board should
be treated with deference on judicial review"(paragraph 40). The proper standard of review therefore
nn the remaining three points in issue is reasonableness.

82.

Access Copyright relies on Rogers Communication Inc. v. Society ofComposers, Authops

and ;l~lusic Publishers in Canada,2012 SCC 35,[2012]2 S.C.R. 283 ["RogeYs"] for support in
arguing that the appropriate standard of review in respect to "the Board's legal interpretations" is the
standard of correctness.

83.

The Court in Rogers stated at paragraph 15 that because ofthe concurrent jurisdiction ofthe

Board and the court at first instance in interpreting the Copyright Act, this rebuts the presumption of
reasonableness review an questions oflaw under its home statute. However the Court in Rogers did
nol depart from the Dunsmuir principle that questions offact, discretion and policy as well as
questions where the legal issues cannot be easily separated from the factual issues generally attract a
standard of reasonableness (paragraph 51). The issue in Rogers was whether the online music
services' uses of music (e.g., paint-to-point transmission of musical works)constitute eommunicating "to the public" by telecommunication under section 3(1)(~ ofthe Act. The Court was ofthe
view that that issue before it was a pure question oflaw, and not a question of mixed fact and law,
because the Court was asked to determine whether apoint-to-point transmission can ever constitute a
communication "to the public" within the meaning of section 3(1)(~ of the Act(see paragraph 20).
84.

Lastly, Access Copyright cites CRIA v. SOCAN,2010 FCA 322["CRI.A "], for support in

arguing that the appropriate standard ofreview with respect to "the Board's findings made without a
proper evidentiary foundation" is the standard of correctness. CRIA supports instead a standard of
reasonableness in respect of matters ofthe weight and effect to be given to the evidence. Here, as
vas found in CRIA, the last three points in issue are "matters of the weight and effect to be given to
-29-

the evidence, matters with which this Court would generally be reluctant to intervene due to the
deference owed to the Board's assessment ofthe evidence before it"(Paragraph 13).
ii) Was The Board's Assessment of Substantiality and Fair Dealing Reasonable`?
85.

For the reasons argued by the Consortium, which BC adopts, it is submitted that the Board's

assessment ofthe weight and effect to be given to the evidence is determining whether the events in
the Volume Study were non-compensable for purposes ofthe tariff-setting calculations was
reasonable, and correct. As expressed in Dunsmuir,the Board's assessment was within the range of
acceptable a~~d rational solutions. The decision provided proper justification, transparency and
intelligibility, and falls within a range of possible, acceptable outcomes which are defensible in
respect ofthe facts and law.

IV. ORDER SOUGHT

86.

BC respectfully requests an Order:

i)

Dismissing the Application;

ii)

Awarding.costs to the Respondents;

iii)

Granting such further relief as this Honourable Court may deem just.

All of which is respectfully submitted.

February 19, 201 G
OYEN WIGGS GRE

UTALA LLP

Tel:(b04)669-3432
Fax:(604)681-4081
Per: Bruce M. Green
Solicitors for the Respondent, Her Majesty The
Queen in Right ofthe Province of British Columbia

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V.

LIST OF AUTHORITIES

1.

Alberta (Education) v. Canadian Copyright Licensing Agency (.Access Copyright), 2012 SCC
37,[2012] 2 S.C.R. 345.

2.

Alberta (Information and Privacy Commissioner) v. Alberta Teachers'Association, 2011

SCC 61,[2011] 3 S.C.R. 654.

3.

Baker v. Canada (Minister ofCitizenship and Immigration), CLA Vol.3, Tub 3.

4.

Caraadu (Canadian Hun2an Rights Commission) v. Canada (Attorney General), 2011 SCC
53,[2011] 3 S.C.R. 471.

5.

Canadian Broadcasting Corp. v. SODRAC 20031nc.,2015 SCC 57.

6.

CCH Canadian Ltd. i~. Law Society of Upper Canada, 2004 SCC 13,[2004 1 S.C.R. 339.

7.

Council ofCanadians with Disabilities v. Y'IA Rail Canada Inc., CLA b'o1.3, Tab 16.

8.

Dunsmuir v. New Brunsx%ick, CLA Vo1.3, Tab I8.

9.

McLean v. British Columbia (Securities Commission), 2013 SCC 67,[2013] 3 S.C.R. 895.

10.

Neighbouring Rights Collective ofCanada v. Society orComposeis, Authors and Music

Parblishers ofCanada, 2003 FCA 302,[2004) 1 FCR 303.

1 1.

Netflix, Inc. v. Society ofComposers, Authors and Music Publishers ofCanada, 2015 FCA
289.

12.

Re: Sound v. Fitness Industry Council ofCanada, 2014 FCA 48,[2015] 2 F.C.R. I70.

13.

Society ofComposers, Authors and Music Publishers ofCanada v. Bell Canada,2010 FCA
139,84 C.P.R.(4th) 157.

14.

Society ofComposers, Authors nnc~'Music Publishers ofCanada v. Canada (Copyright

Board), [1993] F.C.J. No. 137(FCTD),47 C.P.R.(3d) 297.

15.

Society ofComposers, Authors and Music Puhlishers ofCanada v. Canadian Assn. of

Internet Providers. 2002 FCA 166,[2002)4 F.C. 3, rev'd on other grounds 2004 SCC 45,
[2004]2 S.C.R. 427.

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~1