Copyright Board of Canada Access Copyright Tariff Proposals Provincial/Territorial Government Tariffs (2005-2009 and 2010-2014) Preliminary Legal

Proceeding re Crown Immunity

Reply Arguments of the Consortium Members to Access Copyright

Wanda Noel Barrister and Solicitor 5496 Whitewood Ave. Ottawa, Ontario K4M 1C7 Tel: (613) 692-9232 and FASKEN MARTINEAU DUMOULIN LLP Barristers and Solicitors Suite 1300 55 Metcalfe Street Ottawa, Ontario K1P 6L5 J. Aidan ONeill Ariel A. Thomas Tel: (613) 236-3882 Of Counsel for the Consortium Members September 14, 2011

-2-

TABLE OF CONTENTS
I. SUMMARY OF THE CONSORTIUM MEMBERS POSITION IN REPLY TO ACCESS COPYRIGHT ..................................................................................................................................................................................1 II. THE PRINCIPLES OF ENGAGING CROWN IMMUNITY ...............................................................2 PREJUDICE TO THE CROWN........................................................................................................................................2 EXPROPRIATION WITHOUT COMPENSATION ...................................................................................................................4 STANDING, THE GOVERNMENT OF NUNAVUT, AND CROWN IMMUNITY..........................................................................6 III. DID PARLIAMENT INTEND THE CROWN TO BE BOUND BY NECESSARY IMPLICATION? 8 THE NECESSARY IMPLICATION EXCEPTION MUST BE APPLIED STRICTLY ............................................................................8 THE FLEXIBLE AUSTRALIAN APPROACH TO THE NECESSARY IMPLICATION EXCEPTION ......................................................9 THE COPYRIGHT ACT AND A CLEAR EXPRESSION OF LEGISLATIVE INTENT THAT THE CROWN BE BOUND...........................10 INTERNATIONAL TREATIES AND THE NECESSARY IMPLICATION TEST ................................................................................15 WOULD THE PURPOSE OF THE ACT BE WHOLLY FRUSTRATED IF THE CROWN WERE NOT BOUND?....................................17 THE CROWNS CONDUCT CANNOT CHANGE THE LAW...................................................................................................20 IV. THE BENEFIT/BURDEN EXCEPTION TO THE PRESUMPTION OF CROWN IMMUNITY ....21 ASSERTION OF CROWN COPYRIGHT .........................................................................................................................22 PROVINCIAL AND TERRITORIAL LICENSING AGREEMENTS ............................................................................................25 LIMITED WAIVER..................................................................................................................................................26 V. THE ONUS OF REBUTTING THE PRESUMPTION OF CROWN IMMUNITY...............................27 VI. CONCLUSION.............................................................................................................................................29

DM_OTT/281874-00001/52940.7

I. Summary of the Consortium Members Position in Reply to Access Copyright 1. The following constitutes the reply submission of the provinces of Alberta,

Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Newfoundland and Labrador, and Prince Edward Island, and the territory of Nunavut (the Consortium members) in response to the Factum filed with the Copyright Board by Access Copyright on August 30, 2011 with regard to the issue of Crown immunity. 2. It is the submission of the Consortium members that, in its Factum, Access Copyright

has failed to rebut the presumption of Crown immunity which was described in the original Legal Arguments filed with the Board by the Consortium members on June 15, 2011. Instead, in its Factum, Access Copyright has advanced a series of arguments which, taken together, demonstrate a serious mischaracterization of both the presumption of Crown immunity, and the position taken by the Consortium members in this proceeding. 3. In this regard, it is important that the Copyright Board recognize and reaffirm the

longstanding presumption of Crown immunity. The Board will, in this case, set an important precedent relating to the scope of the presumption of Crown immunity in Canadian law. Although the Board is inherently empowered to ensure that copyright owners are fairly compensated for the use of their works, the Board must also take great care not to exceed the scope of the liability the Copyright Act imposes.
Copyright Act, R.S.C., 1985, c. C-42

4.

In considering these legal arguments, and those of Access Copyright, the Board should

understand that the Consortium members are not seeking a ruling of blanket immunity from the Copyright Act. Instead, they assert the defence of Crown immunity only in terms of their respective liability in respect of this tariff proceeding. In making this reply argument to Access Copyrights Factum, the Consortium members will argue that:

Access Copyrights assertion that Crown immunity from the Copyright Act is not engaged is incorrect, as the Crown is clearly prejudiced and the concept of expropriation is wholly inapplicable; Nunavut has status to claim, and, in any case, is entitled to the presumption of Crown immunity;

the Copyright Act in no way necessarily implies or requires the Crown to be bound and that Access Copyright misunderstands the necessary implication exception to the presumption of Crown immunity; Access Copyright has misapplied the benefit/burden exception to the presumption of Crown immunity; and, finally, the Crown is entitled to immunity as a presumption of law, and Access Copyright bears the legal onus of rebutting that presumption.

II. The Principles of Engaging Crown Immunity 5. Access Copyright makes two arguments as to why the presumption of Crown immunity

should, ab initio, not even be presumed in this matter. Access Copyright first asserts that the liability to pay for use of copyright works is not prejudicial to the Crown, and that the presumption of Crown immunity is therefore inapplicable. Access Copyright then goes on to argue that a common law principle of no expropriation without just compensation both applies to, and overrides, Crown immunity from the Copyright Act. The Consortium members respond to this argument as follows. Prejudice to the Crown 6. Access Copyright asserts that if the Copyright Act accrues to [the Crowns] benefit, then

the principle of statutory interpretation [the presumption of Crown immunity] will not apply. Access Copyright then argues that since the Crown benefits overall from a society which has laws protecting copyright, the Copyright Act is a net benefit to the Crown. There are three fundamental problems with this approach.
Access Copyright Factum at para. 23

7.

First, and most important, is that the purpose of requiring prejudice to the Crown is to

ensure that Crown immunity only operates to the Crown's advantage. It prevents third parties from asserting the presumption of immunity against the Crown. Crown immunity cannot be used by third parties to prevent the Crown from asserting a statutory right. 8. Access Copyright cites Alberta Government Telephones (which cites Professor Hogg),

which states: The presumption of immunity only applies when the statutory provisions, if applied to the Crown, would operate to its prejudice.

Alberta Government Telephones [1989] 2 S.C.R. 225, 1989 CANLii 78, at 64 (citing Hogg, Liability of the Crown. Sydney: Law Book Co., 1971 at 181) Access Copyright Factum at para. 18

9.

The existence of prejudice to the Crown, however, was not in issue in that case. In this

regard, Access Copyright has left out the preceding sentence in the Alberta Government Telephones decision which puts this principle in context by noting that [a]t common law it is wellestablished that, although not bound by a statute, the Crown may take advantage of its provisions unless there is an express or implied prohibition from doing so. This is the meaning of the requirement of prejudice to the Crown being requisite for a claim in support of Crown immunity.
Alberta Government Telephones at 64

10.

Second, the prejudice to the Crown that engages Crown immunity must be specific to

the provisions of the statute that are invoked in a particular case. As in the Alberta Government Telephones decision, the specific provisions of the Copyright Act for which the Crown asserts immunity would clearly prejudice the Crown if applied to the Crown. If Crown immunity was found not to apply, and the obligations of the Copyright Act were found to apply to the Crown, the Crown would be liable for payments and tariff terms for which it would not otherwise be liable. Access Copyrights proposed tariff is an example of clear and specific prejudice to the Crown that does indeed engage Crown immunity. 11. Third, every statute is created with the purpose of the overall good for society. This is

Parliament and the provincial and territorial legislatures primary mandate as public governments. Access Copyrights overall benefit to society theory, besides being an affront to common sense, would completely eviscerate the presumption of Crown immunity, as Crown immunity would then never apply. As Professor Hogg has himself written: The Privy Council in the Bombay case also rejected the argument, which was supported by some dicta of Coke, that a statute enacted "for the public good" must be held to bind the Crown, even in the absence of express words or necessary implication. Their lordships pointed out that "every statute must be supposed to be 'for the public good', at least in intention." The beneficent purpose of a statute was not by itself sufficient to rebut the presumption that the Crown was not bound.
Hogg and Monahan, Liability of the Crown, 3rd ed., Carswell, 2000, (hereinafter Hogg) at 277-278, citing to Bombay [1947] AC 58 (PC, India) at 63

12.

There is no authority in law that prejudice to the Crown must be set off against the net

overall accrual of the benefit of a whole statute to the overall public good. Access Copyright appears to be attempting to take a narrow limitation and then broaden it to apply to society as a whole. With respect, this has long been rejected as a ridiculous proposition. 13. Furthermore, if the Crown were not prejudiced by the application of obligations under the

Copyright Act in this proceeding, the Consortium members would hardly have chosen to come before the Copyright Board defending the presumption of Crown immunity. The imposition of certified tariffs which are payable to Access Copyright by Consortium members clearly constitutes a prejudice to the Crown. Expropriation without compensation 14. Access Copyright also argues that Crown immunity is not engaged because of an

inappropriate analogy to a common law principle stating that, without clear statutory authority, the expropriation of property must be compensated. This being said, it is unlikely that Access Copyright puts much stock in its own argument, as it gives this broad principle short shrift in its written submissions. More importantly, perhaps, the case law cited by Access Copyright does not even stand for the broad proposition that Access Copyright attempts to make. In this regard, expropriation is not a legal issue which is even remotely connected to the matter which is currently before the Copyright Board with respect to the question of Crown immunity. 15. Expropriation is, of course, a concept that applies primarily to real property; in other

words, land. As Supreme Court Justice Iacobucci wrote in Osoyoos Indian Band v. Oliver (Town), expropriation, by definition, is the forced taking of land without the consent of the owner.
Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85, [2001] 3 SCR 746 at para. 142 (emphasis added)

16.

The common law principles surrounding expropriation have never been used to defeat a

claim of Crown immunity. The rule Access Copyright relies upon is not a recognized exception to the presumption of Crown immunity, nor has the rule ever been used to obligate the Crown to make ongoing royalty payments under a tariff. 17. In its written argument, Access Copyright cites as authority the Supreme Court decision

of Authorson (Litigation Guardian of) v. Canada (Attorney General). This decision held that the

Bill of Rights, S.C. 1960, c. 44 does not protect against expropriation without just compensation. However, the Court took a very narrow interpretation of the common law principle which Access Copyright is now relying upon. As Major, J. wrote in that decision: The respondent claimed a rightbased on a broad conception of the rule of law against the expropriation of property (or against expropriation without just compensation). Does the due process guarantee of the Bill of Rights confer substantive protections in this regard? [heading omitted] Canadian courts have been wary of recognizing such protections, in part perhaps because of the American experience with the substantive due process enforcement of property and contract rights.
Authorson (Litigation Guardian of) v. Canada (Attorney General) 2003 SCC 39 at paras. 47 and 48

18.

In the Supreme Court decision of Manitoba Fisheries Ltd. v. The Queen, the Court was

explicit that there had to be a taking of a property right by the Crown. Simply put, the owner of property must be deprived of a right in that property. Here, however, no right to compensation is being taken away from copyright holders if the Crown is held to be immune; their statutory rights simply never extended to the Crown in matters such as this one. There can be no taking of what never existed.
Manitoba Fisheries Ltd. v. The Queen, [1979] 1 S.C.R. 101 at 110 to 113

19.

The Copyright Act is exhaustive with regards to the rights of copyright holders. If the

Crown is immune to the Copyright Act in relation to this tariff proceeding, there are, ergo, no rights in the first place which can be taken away by the Crown. 20. Additionally, and a fortiori, there are no rights in property that could be taken at all under

the Copyright Act, as the Copyright Act does not provide rights in property. Although copyright is often broadly categorized with trademark and patent law under the term intellectual property, copyright is a sui generis statutory right which has many key differences from property law. Notably, in this proceeding, nothing is being taken away from copyright holders, nor are copyright holders being deprived of property in any way. As Estey J. wrote: Mr. Hughes for the respondent in answer to a question from the Bench put it very well when he said that copyright law is neither tort law nor property law in classification, but is statutory law. It neither cuts across existing rights in property or

conduct nor falls between rights and obligations heretofore existing in the common law. Copyright legislation simply creates rights and obligations upon the terms and in the circumstances set out in the statute.
Compo Co. Ltd. v. Blue Crest Music et al., [1980] 1 SCR 357 at 372

21.

Finally, the source of the rule regarding expropriation is the common law. Common law

rules cannot overcome clear statutory language. As such, the completely unrelated and subordinate common law rule regarding expropriation of property that Access Copyright asserts in its Factum simply cannot overcome the clear language and intent of section 17 of the Interpretation Act.
Interpretation Act, RSC 1985, c I-21, s. 17

Standing, the Government of Nunavut, and Crown immunity 22. Access Copyright argues in its Factum that the territories have no standing to assert

Crown immunity because they have no separate constitutional status from the Crown in right of Canada.
Access Copyright Factum at paras. 20-22

23.

As the Board is aware, Yukon and the Northwest Territories are not asserting Crown

immunity in this proceeding, so the following arguments will only address the status of Nunavut. 24. First, no issue of standing is raised by Nunavuts assertion of Crown immunity in this

proceeding. Nunavut, as an Objector to Access Copyrights proposed tariff, is a proper party to this proceeding. The presumption of Crown immunity applies regardless of who may assert it. No reference need be made to the actions of the federal government in order for any territory to assert Crown immunity. 25. For example, in Robb v. Yukon Territory (Government of), a decision of the Yukon

Territory Court of Appeal, the government of Yukon successfully asserted Crown immunity without any reference to activities of the federal government. Yukon was found to enjoy immunity from both the prejudgment interest provision of the Yukon Judicature Act and the prejudgment interest provision of the Federal Interest Act due to the effect of the presumptions of Crown immunity codified in the Yukon and Federal Interpretation Acts, respectively.
Robb v. Yukon Territory (Government of) (Y.T.C.A.), [1987] Y.J. No. 7 (QL) at 3

Judicature Act, R.S.Y.T. 1971, c. J-1, s. 11; Interpretation Act, R.S.Y.T. 1971, c. I-3, s. 12; Interpretation Act, R.S.C. 1970, c. I-23, s. 16; Interest Act, R.S.C. 1970, c. I-18, s. 3

26.

At no point in the Yukon Territory Court of Appeals discussion of immunity is the issue

of standing ever mentioned. Nor is there any reference in the decision to the activities of the federal government. It appears that those factors were simply not relevant. 27. The fact that the territories are not mentioned in the Alberta Government Telephones

decision, as Access Copyright argues at paragraph 21 of its Factum, does not mean that section 17 of the Interpretation Act cannot apply to the benefit of the territories, as well as the provinces. The immunity of a territory was not at issue in that case and the Supreme Court consequently had no reason to discuss it. 28. Second, Access Copyrights assertion that Nunavut has no separate constitutional status

of its own is not accurate. Access Copyrights argument appears to rely heavily on the fact that Nunavut was created by a federal enactment. This argument fails to acknowledge that the territory of Nunavut was created by the comprehensive Nunavut Land Claims Agreement among Canada, Northwest Territories and the Inuit of the Eastern Arctic as represented by the Inuit Tunngavik (NTI).
Nunavut Land Claims Agreement (hereinafter NLCA)

29.

The NLCA is a quasi-constitutional document because it is protected by section 35 of the

Constitution Act, 1982. Article 2.2.1 states specifically that The agreement shall be a land claims agreement within the meaning of section 35 of the Constitution Act, 1982. In 1993, the NLCA was given legal force and effect by the Nunavut Land Claims Agreement Act.
Constitution Act, 1982, s. 35 NCLA, Art. 2.2.1 Nunavut Land Claims Agreement Act, S.C. 1993, c. 29

30.

Parliament was bound by the NLCA, and thus by the Constitution, to enact the Nunavut

Act. Article 4 of the NLCA required the Government of Canada to create Nunavut and its public government by way of legislation. Nunavut is therefore not impeded from alerting the Board to the presumption of Crown immunity and can benefit from the presumption in the same manner as the provincial Consortium members.
NCLA, Art. 4

III. Did Parliament intend the Crown to be bound by necessary implication? 31. The Consortium members submit that Access Copyright has not rebutted the

presumption of Crown immunity from the Copyright Act by showing that there is a necessary implication from the text of the Act that Parliament intended the Crown to be bound by it. The Consortium members submit the following arguments in support of their position. The necessary implication exception must be applied strictly 32. As the Supreme Court explained in Alberta Government Telephones, endorsing the

decision of the Privy Council in the leading case of Bombay, the test for finding a legislative intention to bind the Crown is strict and narrowly confined. [] the strict test for finding a legislative intention to bind the Crown.
Alberta Government Telephones at 71

The Privy Council made clear that any exception to the normal Crown immunity rule based on a necessary implication should be narrowly confined. As a result, an intention to bind the Crown is not to be inferred merely from the fact that the provisions of a statute will not operate smoothly or efficiently if the Crown is not bound, nor from the fact that if the Crown is not bound the statute will have only a limited application.
Alberta Government Telephones at 57 Province of Bombay v. Municipal Corporation of Bombay, [1947] A.C. 58

33.

The reason for the strictness of this test is that Parliament has already explicitly directed

in section 17 of the Interpretation Act that the Crown is not bound except as mentioned or referred to in the enactment. Any necessary implication must fit within this language. As explained by Professor Sullivan in Sullivan on the Construction of Statutes under the heading Rebutting the presumption, [w]hat the Interpretation Acts require is a clear expression of legislative intent. Professor Hogg explains that to satisfy the requirements of the statute, this expression of intent must be clear beyond doubt.
Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed., Butterworths Canada, 2002 (hereinafter Sullivan), at 605 Alberta Government Telephones at 63 Hogg at 275

34.

It is worth noting that the words mentioned or referred to do not merely mean that any

mention of the Crown is sufficient. The statute must have mentioned or referred to Her Majesty as being bound.
Interpretation Act, s. 17 Alberta Government Telephones at 61 (emphasis added)

35.

The necessary implication exception requires that the conclusion that Parliament

intended the Crown to be bound be inescapablethat the conclusion must be made. Access Copyright therefore clearly bears the onus of showing a clear expression of legislative intent that the Copyright Act binds the Crown. The Consortium members submit that it has not done so.
R v. Ouellette, [1980] 1 S.C.R. 568 at 575 (it is possible that Her Majesty be implicitly bound by legislation if that is the interpretation which the legislation must be given when it is placed in its context. [emphasis added])

The flexible Australian approach to the necessary implication exception 36. Prior to a discussion as to why Access Copyright has not shown that the Crown is bound

by necessary implication, it should be noted that Access Copyrights argument hinges on its claim that the Copyright Board should change the necessary implication exception by replacing the Canadian courts strict approach to applying the necessary implication exception with the contextual and flexible approach used in the Australian High Court decision Bropho v. Western Australia.
Bropho v. Western Australia [1990] HCA 24; 1990 171 C.L.R. 1 (hereinafter Bropho) Access Copyright Factum at para. 38

37.

The Consortium submits that it would be inappropriate for the Board to accept Access

Copyrights submission for several reasons. The most important reason is that the law of Crown immunity is significantly different in Australia. Prior to the Bropho decision, the presumption of Crown immunity in Australia actually granted the Crown a much broader immunity than that enjoyed by the Crown in Canada. This is because in Australia, not only was the Crown presumed not to be bound by its own laws, but as Professor Hogg explains in Constitutional Law of Canada, it has also been recognized that the essential functions of provincial governments are immune from federal laws.
Hogg, Constitutional Law of Canada, 5th Edition at 10-23

38.

The Bropho decision significantly weakened the presumption of Crown immunity in

Australia, but it did so against a backdrop of much more significant government privilege than that enjoyed by Canadian governments.
Hogg at 289, fn 81 (significantly weakened)

39.

The Supreme Court of Canada would have been aware of the Bropho case in 1992

when it decided Oldman River, and did not follow it. Indeed, the UK and New Zealand courts have also refused to adopt the Australian High Courts new and extraordinary approach.
Oldman River Hogg at 283

40.

If the Board were to adopt the expanded, flexible necessary implication test proposed

by Access Copyright outside of the context of the Australian law of Crown immunity, the result would be that Canadian Crown immunity would be severely limitedmuch more limited than it is in Australia. The necessary implication exception would apply in exactly the way former Chief Justice Dickson warned against: it would swallow the rule of Crown immunity.
Alberta Government Telephones at 70

The Copyright Act and a clear expression of legislative intent that the Crown be bound 41. In this case, the Consortium members submit that Access Copyright has not met its

onus to prove that it is clear beyond doubt that the Copyright Act binds the Crown by necessary implication, through a clear expression of legislative intent.
Sullivan at 605, referring to Alberta Government Telephones at 63 (clear expression of legislative intent) Hogg at 275 (clear beyond doubt)

42.

As proof that Parliament intended that the Crown be bound by the Copyright Act, Access

Copyright refers at paragraphs 56 to 68 of its Factum to exemptions under the Act that it says refer to the Crown. It argues that because the Crown is exempted, under the contextual interpretation established by the Australian High Court in Bropho, there is a logical implication that the Crown was intended to be bound by the remainder of the Copyright Act: These exemptions evidence a clear intention that the Act, subject to these exemptions, applies to the Crown; the maxim expressio

unius est exclusio alterius directs that the [Copyright] Act be so interpreted.
Access Copyright Factum at paras. 53 and 56-68

43.

In Professor Hoggs text, Liability of the Crown, he explains that the courts have been

reluctant to find that the Crown was bound based on this argument: The argument made most commonly was based on the maxim expressio unius est exclusio alterius. This argument applies to a statute that contains a provision exempting the Crown from some of its provisions and is silent as to whether the rest of the statute binds the Crown. The argument is that the exempting section raises a logical implication that the Crown is bound by those provisions from which it has not been exempted; if this were not so, so the argument runs, there would be no need for the exempting section. This argument has generally not been accepted by the Courts, who have tended to treat the exemption as having been inserted only out of an abundance of caution. It is easy to accept this reasoning. Since expressio unius is a weak inference at the best of times, it cannot overcome the presumption that the Crown is not bound.
Hogg at 289 See also Province of Bombay at 65; CBC v. A-G, Ont. [1959] S.C.R. 188 at 199; Lord Advocate v. Dumbarton D.C. [1990] 2 A.C. 580 at 600; Alberta Government Telephones at 62; IBEW v. Alberta Government Telephones [1989] 2 S.C.R. 318 at 329

44.

The text, Government Liability Law and Practice, also states that [t]he Crown will not be

bound as a result of the application of a rule of construction like expressio unius est exclusio alterius.
Horseman and Morley, Government Liability Law and Practice, Thomson Reuters, at 1-26.1

45.

The principle that exemptions of the Crown in certain provisions of a statute are not

evidence of a clear intention that the Crown be bound was made clear by the Supreme Court in Alberta Government Telephones. In that case, an exemption of Government railways in the Railway Act, R.S.C. 1970, c. R-2 was found not to be a sufficiently clear reference to any Parliamentary intention to bind the Crown because there were several equally plausible explanations for the exemption. An exemption which could equally have been inserted because Crown liability was not contemplated or because Crown liability was intended is not a clear expression of intention that the Crown should be bound.

[W]hether the exemption of Government railways from s. 5 exists out of an abundance of caution as Pratte J. held for the Federal Court of Appeal, as a matter of historical antecedent as held by Reed J. at trial, or otherwise, it does not provide a sufficiently clear reference to any Parliamentary intention to bind the Crown within the meaning of the general word person in s. 5. The fact that both of the explanations offered by Pratte J. and Reed J. are equally plausible is evidence enough of a failure to convey an intention to bind the Crown. [] The exemption of Government railways is as consistent with a complete absence of contemplation of whether Government telecommunications carriers are bound as it is with an intention that they be bound. To hold that this exception is sufficient to bind the Crown would be to do so in the face of a considerable doubt, inconsistent with a clear expression of intention.
Alberta Government Telephones at 62-63

46.

The situation is the same in this case. Access Copyright has listed several exemptions

in the Copyright Act which could apply to exempt Crown agents. However, these exemptions at best create a weak inference that the Crown was intended to be boundwhich the Supreme Court has decided is not a clear expression of intention. 47. It would be just as reasonable to assume that the exemptions were placed in the

Copyright Act out of an abundance of caution. Also, with the exception of the exemption for Archives Canada in section 30.5 of the Act, the exemptions listed would not protect only Crown agents. The exemption for performing statutory obligations and the exemption from the importation sanction would protect any person who does the exempted activities. Indeed, the exemption from the importation sanction exempts a person who imports copies of a work for use by a Crown. It does not actually exempt use by a Crown. Similarly, the exemptions for educational institutions are also designed to protect private personsa person acting under [an institutions] authorityfrom being found to have infringed the Copyright Act.
Copyright Act, ss. 32.1(1), para. 45(1)(b) Copyright Act, ss. 29.4, 29.5, 29.6

48.

Finally, just as the exemption of government railways from the Railway Act without

creating a necessary implication that Parliament intended the Crown to be bound, the exemption in section 30.5 of the Copyright Act for Archives Canada was likely inserted out of an

abundance of caution. Regardless of the presumption of Crown immunity, Parliament likely saw value in preventing needless and expensive litigation, or the proposal of a copying tariff, regarding Archives Canadas activities.
Copyright Act, s. 30.5 Alberta Government Telephones at 62-63

49.

Any implication arising from these exceptions that Parliament contemplated that the

Crown would be bound by the entire Copyright Act is a weak inference at best and falls far short of the exceptions requirement that the implication be clear beyond doubt. There is significant doubt here.
Hogg at 275

50.

There is a much clearer implication in the text of the Copyright Act that Parliament did

not intend the Crown to be bound. The only times the Crown is mentioned in the Act are the times when Parliament has explicitly exempted it. Parliament could just as easily have stated that the Crown is boundfor example, in the opening words of section 12 of the Act. Instead, it did the opposite, and explicitly preserved the rights and privileges of the Crown. 51. The presumption of the perfection of statutes is relevant here. As Professor Sullivan

explains, [l]egislation is presumed to be accurate and well-drafted; it is presumed that the legislature does not make slips of the pen.
Sullivan at 129

52.

Estey, J. explained the presumption of perfection as follows: [] the Legislature is guided and assisted by a well-staffed and ordinarily very articulate Executive. The resources at hand in the preparation and enactment of legislation are such that a court must be slow to presume oversight or inarticulate intentions. [] The Legislature has complete control of the process of legislation, and when it has not for any reason clearly expressed itself, it has all the resources available to correct that inadequacy of expression. This is more true today than ever before in our history of parliamentary rule.
Morguard Properties Ltd. v. City of Winnipeg, [1983] 2 SCR 493 at 509

53.

The Copyright Act is presumed perfect, and Parliament is presumed to have the power

to correct any inadequacy of expression. Section 17 of the Interpretation Act explicitly says that the Crown is presumed not to be bound, and section 12 of the Copyright Act explicitly preserves the rights of the Crown. The result is that the presumption that the Crown is immune from the Copyright Act is very strong. 54. Finally, it is worth noting that, in Eros-quipe, and contrary to Access Copyrights

submission, Justice Tremblay-Lamer did undertake an analysis of whether the Crown was bound by the Copyright Act by implication of the words of the Act. While her analysis was not detailed, she did conclude that, because the words of section 12 expressly preserve the Crowns rights and privileges, the Crown is not bound by implication. The following is her entire analysis: In the case at bar, the Act does not state that it applies to the Crown. This silence accordingly makes it necessary to analyse the provisions of the Act to determine whether the Crown can still be made subject to the Act by implication. Eros alleged that section 12 of the Act is an indication that the Act is applicable to the Crown. I am not of this view. Section 12 expressly mentions that it is applicable without prejudice to any rights or privileges of the Crown: [text of section 12] In his text Fox's Canadian Law of Copyright and Industrial Designs, 3d ed., Toronto, Carswell, 2000 (Fox), at p. 355, John S. McKeown states that the Crown can exercise the rights conferred in section 12 of the Act without this eliminating its immunity.
Eros -quipe de Recherche Oprationnelle en Sant Inc. v. Conseillers en Gestion et Informatique C.G.I. Inc., 2004 FC 178 (CanLII) (hereinafter Eros quipe) (emphasis added) at paras. 58-60

55.

Indeed, since section 12 of the Copyright Act expressly states that it does not limit the

Crowns rights, it is logical to conclude that any other provisions that mention the Crown do not limit the Crowns rights either. If those provisions made the Crown bound by the Act, it would be illogical for section 12 to preserve the Crowns immunity.

International treaties and the necessary implication test 56. In its Factum, Access Copyright lists several international agreements to which Canada

is a signatory and claims that their content creates a necessary implication that Parliament intended the Crown to be bound by the Copyright Act. This is incorrect, for two reasons. 57. First, even if those treaties did require the Crown to be bound by the Copyright Act, and

they do not, the fact that treaties may be considered in statutory interpretation does not mean that they can replace the plain and explicit words of section 17 of the Interpretation Act. [I]f a statute is unambiguous, its provisions must be followed even if they are contrary to international law [Where] the intent of Parliament was clear and unmistakable the plain words of a statute could not be disregarded in order to observe the comity of nations and the established rules of international law.
Daniels v. White and the Queen, [1968] SCR 517 at 541; quoted with approval in Schreiber v. Canada (Attorney General), [2002] SCC 62 at para. 50, and in Sullivan at 429

58.

Second, none of the treaties Access Copyright claims bind the Crown to the Copyright

Act actually do so. Article 1701 of the North American Free Trade Agreement (hereinafter NAFTA), which Access Copyright cites at paragraph 92 of its Factum, requires parties to enact laws that provide adequate and effective protection and enforcement of intellectual property rights. Those words cannot be read as a requirement that copyright laws must bind the Crown. The Copyright Act can hardly be described as inadequate and ineffective merely because it does not apply to the Crown.
NAFTA, Art. 1701

59.

Article 105 of NAFTA, also cited by Access Copyright at paragraph 92 of its Factum,

requires signatories to ensure that their state and provincial governments enact laws that give effect to that requirement, not for their governments themselves to be bound. That is plain from the wording of the provision.
NAFTA, Art. 105

60.

The Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter

TRIPs) cited by Access Copyright at paragraph 95 of its Factum, requires signatories to adhere to the Berne Convention, which requires laws ensuring that copyright subsists and prescribes substantive protections for copyright works. These requirements have clearly

already been fulfilled by Canadas Copyright Act and the subsistence and protection of copyright among the private parties to whom the Act is directed is not contradicted by the Crowns immunity from the Act. 61. Access Copyright also claims that Article 48 of TRIPs limits immunity of public

authorities and officials from intellectual property laws. Yet it is plain from the wording of the provision that it applies to the enforcement of intellectual property laws, not the laws themselves. The liability is to appropriate remedial measures. 48(2): In respect of the administration of any law pertaining to the protection or enforcement of intellectual property rights, members shall only exempt both public authorities and officials [] in the course of the administration of that law.
TRIPs, Art. 48(2)

62.

Finally, Access Copyright claims in paragraph 90 of its Factum that Article 46 of the

Vienna Convention on the Law of Treaties says that a state may not plead its internal constitution as an excuse to evade its international obligations. With respect to Access Copyright, this is, frankly, a mischaracterization of the rule. In this regard, the rule reads as follows: Article 46: Provisions of internal law regarding competence to conclude treaties 46(1): A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
Vienna Convention on the Law of Treaties, Art. 46(1)

63.

As such, the rule prevents a state from claiming that one of its laws removes its capacity

to enter into treaties (invalidating its consent). That is clearly not the case here. Article 46(1) does not mean, as Access Copyrights argument would require, that a states laws are subordinate to the provisions of treaties to which it is a signatory. The above treaty provisions therefore create no necessary implication in the Copyright Act that Parliament intended the Crown to be bound.

Would the purpose of the Act be wholly frustrated if the Crown were not bound? 64. To rebut the presumption of Crown immunity by showing that a statute would be wholly

frustrated if the Crown were not bound, it must be shown that an absurdity (as opposed to simply an undesirable result) would be the consequence of the Crowns immunity. Access Copyright argues that because the Copyright Act is an exhaustive regime, if it did not apply to the Crown, it would no longer be exhaustive and its purpose would thus be wholly frustrated.
Alberta Government Telephones at 62 Access Copyright Factum at paras. 48-49

65.

The Consortium members submit that Access Copyrights argument is based on a

misunderstanding of the exhaustiveness of the Copyright Act. The Act is exhaustive because it is the only way private parties can gain copyrightstheir rights to exclude others from engaging in certain activities with their works. As the Supreme Court of Canada stated in CCH Canadian Ltd. v. Law Society of Upper Canada, copyright is a creature of statute and the rights and remedies provided by the Act are exhaustive.
CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 at para. 9

66.

For example, one of these rights is the sole right of reproductionthe right held by its

owner which enables that owner to exclude others from reproducing a work. The Copyright Act does not, however, contain an exhaustive list of ways in which a work can be used. For example, while performance of a work in public is a protected right under the Act, anyone may perform a song in private because the Act does not give its author the right to exclude him (or her) from doing so. 67. The Copyright Act is not an exhaustive code vis--vis all possible legal uses of the works

in which it grants rights. There are many legal uses for which no permission is needed that the Act does not address. One category of such uses is use by the Crown, in situations where the Crown is immune from the Act. Just as the ability to perform a song in private does not affect the scheme of the Act, similarly, the Crowns ability to copy a published literary work does not. 68. Moreover, it would not make sense to ignore the words of the Copyright Act when

arguing that the Crowns immunity is pre-empted by the fact that the Act is an exhaustive

code. Section 12 of the Act itself provides for the Crowns rights and privileges, which include both Crown copyright and Crown immunity from statutes. 69. As the Supreme Court explained in Alberta Government Telephones, if the Act can

continue to function despite a gap in potential coverage caused by Crown immunity, then it will not be wholly frustrated: The fact that granting immunity will produce a regulatory vacuum with respect to AGT is insufficient and does not amount to a frustration of the Railway Act as a whole. While granting immunity unless and until Parliament chooses to amend the legislation will produce a gap in potential coverage of the Railway Act, the Act can continue to function just as it did prior to this Court's finding that AGT is a federal undertaking.
Alberta Government Telephones at 63

70.

In this case, even though the Crown is immune, the Copyright Act will continue to

regulate the relationships amongst the private parties toward whose conduct it is directed. Private parties would continue to be free to enter into agreements with governments for those governments access to, or gaining of exclusive rights to, copyright works. 71. This situation in this case is much different from those of Friends of the Oldman River

Society v. Canada (Minister of Transport) and R. v. Greening because in those cases, the statutes at issue would simply not work at all if they did not apply to the Crown. For example, with respect to the Navigable Waters Protection Act in Oldman River, the Supreme Court noted that the provinces themselves were one of the major groups whose activities could affect navigable waters. If a provinces activities obstructed a navigable waterway, the federal statutes objective would be completely thwarted because there would be no more navigable water to protect.
Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 SCR 3, 1992 CanLII 110 (SCC) (hereinafter Oldman River) at p. 8 (likely to engage) R. v. Greening, 1997 CanLII 14626 (NL CA)

72.

Furthermore, in that case, if the Navigable Waters Protection Act had not applied to the

Crown, there would have been no legal way for the provincial governments to engage in projects that would interfere with navigation. The Supreme Court explained the particular circumstances which led it to the conclusion that the purpose of the Navigable Waters

Protection Act would be wholly frustrated if the Crown in right of the provinces were not bound by it. 73. First, the Crown in right of a province was not entitled to interfere with the publics

common law right of navigation without legislative authorization. Second, only Parliament, vested with exclusive jurisdiction over navigation and shipping, could grant legislative permission. Third, the Navigable Waters Protection Act was the only legislation through which that permission could have been granted. Therefore, the only way the provinces could have engaged in projects interfering with navigation without violating the common law right of public navigation was through the Navigable Waters Protection Act.
Oldman River at p. 60 Sullivan at 607

74.

By contrast, the situation in this case is more analogous to the situation in Alberta

Government Telephones. The Crown does not require the regulation of the Copyright Act to gain permission to make copies because copies made by the Crown do not violate the common law. The Crowns relationship to the Copyright Act is simply a regulatory vacuum.
Alberta Government Telephones at 62

75.

In R. v. Greening, the issue was public safety. As noted in that decision: The orderly and safe circulation of traffic depends on the rules of the road being applicable to all users of the road. A departure from those rules would endanger not only the offender but any member of the public, whether in a motor vehicle or not, who had the misfortune to be in the [vicinity] of the offence.
R. v. Greening at para. 93

76.

In other words, unless everyone followed the rules of the road, the statutes public safety

goal could not be achieved. If the Crown was not bound, the Highway Traffic Act simply could not work. The situation with the Copyright Act is simply not the same. Even though it is not binding on the Crown, copyright holders can still assert their rights in their works against others. The system can function perfectly well amongst the private parties toward whom the Act is directed.

77.

At most, perhaps the value of Canadian copyrights on the whole is slightly diminished

because of the absence of the Crown as a market for non-exclusive rights. But even if Access Copyright had demonstrated that, such a small reduction would in no way amount to a whole frustration of the Acts purpose. 78. Finally, Access Copyrights rather ridiculous scenario, described at paragraph 52 of its

Factum, in which the Crowns immunity could be used by the Crown to pirate copyright works does not make that immunity an absurdity. If the governments were to become large-scale copyright pirates, a situation which would clearly never arise, it may be an undesirable result, but certainly not an absurdity. It would remain open to Parliament to remedy such an "undesirable result" by amending the Copyright Act to provide that the Crown is bound by the Act.
Access Copyright Factum at para. 52

The Crowns conduct cannot change the law 79. In its submission, Access Copyright lists several instances in which governments have

been defendants in copyright infringement lawsuits without having asserted Crown immunity. It also asserts that the Crown (meaning, a procurement contracting specialist for the regional supply depot of the Correctional Service of Canada, a prison warden, and the Treasury Board Secretariat Canada) has operated on the presumption that it should respect the copyrights of others. These instances are completely irrelevant to the determination of whether Parliament drafted the Act with the intention that it would bind the Crown.
Access Copyright Factum at paras. 71-72 and 78

80.

The policies of Consortium members that say that the members respect copyright or

intellectual property laws, or that require employees to obtain permissions to use copyright works have the same (lack of) effect. Even if those policies contained acknowledgements that the members are bound by the Copyright Actand they do notthe text of the Act and of the Interpretation Act would be the same. These policies cannot change those statutes and they are not an indication of Parliaments intention. 81. The various agreements that have been entered into by Consortium members, that

have, at least in part, granted them the right to use copyright works such as software, similarly cannot change the law. It is simply irrelevant to the task of statutory interpretation whether

various Crowns or Crown agents have entered into licence agreements. Entering into an agreement to purchase software and technical support for that software is nearly always part of the software installation process and is near-impossible to avoid. The only way to gain access to certain literary databases is by entering into a licence agreement as a purely contractual matter. That does not mean that these agreements have the power to change the words of the Interpretation Act and the Copyright Act. IV. The Benefit/Burden Exception to the Presumption of Crown Immunity 82. Access Copyright, in its arguments related to the benefit/burden exception to Crown

immunity, seems to have confused the basic principles of the exception. Indeed, Access Copyright cannot seem to keep straight which alleged benefit it thinks is linked to the liability to pay Access Copyright under a copying tariff. 83. Access Copyright does not make any meaningful attempt at drawing the close nexus

between a benefit and a burden as is required by the common law benefit/burden exception. Rather, Access simply lists everything that it considers a Crown benefit of the Copyright Act to claim that somehow, added together or overall, they would mean the doctrine of Crown immunityhas generally been waived by virtue of the Crowns commonplace conduct.
Access Copyright Factum at para. 143

84.

The strategic reasoning behind such confusion is clear. Access Copyright appears to be

attempting to obfuscate the close nexus between the benefit and burden required by this narrow exception to the presumption of Crown immunity. In this regard, Access Copyright states that the Crown cannot seek the benefits of the [Copyright] Act but avoid the restrictions attendant to the statute (emphasis added). This epitomizes Access Copyrights fundamental misunderstanding of the benefit/burden exception. The restrictions must be burdens attendant to the benefit, not the statute. This misunderstanding bears restating Sparling: Application of the benefit/burden exception does not result in subsuming the Crown under any and every regulatory scheme that happens to govern a particular state of affairsThe exception is not of such broad reach. Its application depends not upon the existence or breadth of a statutory scheme regulating an area of commerce or other activity, but, as noted earlier, upon the relationship or nexus between the benefit sought to be taken from a statutory or regulatory provision and the burdens attendant upon

that benefit. The focus is not on the source of the rights and obligations but on their content, their interrelationship.
Sparling v. Qubec (Caisse de dpt et placement du Qubec), [1988] 2 S.C.R. 1015 (hereinafter Sparling) at para. 29 Access Copyright Factum at para. 145

85.

For the sake of clarity, the reply to these arguments will be divided into the two benefits

that Access Copyright has claimed the Consortium members enjoythe assertion of Crown copyright and the licensing contracts to which the provinces and territories have voluntarily agreed. Access Copyrights argument regarding limited waiver will also be addressed. Assertion of Crown Copyright 86. Access Copyright submits that since the provinces and territories have asserted their

own copyright, that the benefit/burden exception to Crown immunity would entail some sort of reciprocal recognition of the assertion of copyright by others. However, this not only ignores the clear language of section 12 of the Copyright Act, it is also a clear misinterpretation of the purpose of the benefit/burden exception.
Access Copyright Factum at para. 121

(i) Section 12 of the Copyright Act Section 12 of the Copyright Act reads: Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.
Copyright Act, s. 12

87.

Access Copyrights interpretation of section 12 of the Copyright Act is that the words

without prejudice to any rights or privileges of the Crown refer only to the one historic right of the Crown to be the sole publisher of its own works. However, there is no case law that interprets section 12 in this narrow way; Access Copyright cites only the brief interpretation offered by Professor David Vaver.

Access Copyright Factum at para. 110

88. 12.

Access Copyright correctly cites Rizzo & Rizzo Shoes Ltd. as an authority in statutory

interpretation, although it plainly contradicts Access Copyrights position with respect to section

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21 citing with approval Driedger, Construction of Statutes, 2nd ed., 1983 at 87

89.

The federal Interpretation Act also provides that every enactment is deemed remedial,

and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects (emphasis added).
Interpretation Act, s. 12

90.

The clear intention of Parliament in drafting the language of section 12 was that the

Crown could assert copyright without prejudice to any rights or privileges of the Crown (emphasis added). The grammatical and ordinary meaning of these words is as clear and plain as the language could reasonably be. 91. If Parliament had intended this to be limited to one historic right of publication, it could

have easily chosen wording to that effect. Conversely, these are exactly the words one would expect to see if Parliament had intended section 12 to allow the Crown to assert copyright without prejudice to any of its rights or privileges. Access Copyrights interpretation is not, in any sense, fair, large and liberal.
Copyright Act, s. 12 Interpretation Act, s. 12

92.

Access Copyright suggests that this interpretation would mean that the Crown would

enjoy numerous immunities and privilegeswhich Access Copyright lists, but does not either qualify or explainin any case for copyright infringement. This is incorrect. Section 12 only confers these rights and privileges in respect of the grant of Crown copyright. That is to say, section 12 holds, inter alia, that the mere grant of Crown copyright does not waive the rights and privileges of the Crown.

93.

In Eros-quipe, the Crown was found to have waived its immunity in respect of a piece

of software by virtue of an exclusive license agreement with the software provider, and was therefore found liable for copyright infringement. It was not the Crowns assertion of copyright which was at issue in the benefit/burden analysis, and section 12 was therefore not engaged. In fact, the Federal Court expressly found in Eros-quipe that Crown immunity was not prejudiced by section 12 of the Copyright Act. Eros alleged that section 12 of the [Copyright] Act is an indication that the Act is applicable to the Crown. I am not of this view. Section 12 expressly mentions that it is applicable without prejudice to any rights or privileges of the Crown.
Eros-quipe at para. 59

(ii) The attendant burden to the Crowns assertion of copyright 94. Even if, arguendo, section 12 did not operate to protect the Crowns rights and privileges

when it asserts copyright over the works it produces, the benefit/burden exception does not entail some sort of reciprocal recognition of the panoply of rights of others in copyright works under the Copyright Act. 95. The benefit/burden exception to Crown immunity operates so that the Crown cannot

make use of a statutory right without the limitations to that right. That is to say, the Crown cannot take a greater right than a statute confers. In this regard, Sparling states: It was only by seeking the benefits of the statute by purchasing shares that the Caisse chose to bring itself within the purview of the law relating to shareholders. In the words of Professor Hogg, op. cit., at p. 183, "when the Crown claims a statutory right the Crown must take it as the statute gives it, that is, subject to any restrictions upon it." Otherwise, the Crown would receive a "larger right than the statute actually conferred" (p. 183).
Sparling at para. 28 (citing Hogg, Liability of the Crown in Australia, New Zealand and the United Kingdom. Australia: Law Book Co., 1971 at 183)

96.

In Alberta Government Telephones, the Supreme Court found that the Crown did not

waive its immunity to the general authority of the Railway Act despite having gained certain advantages from that Act. The benefits derived under the Railway Act by AGT are of a general nature resulting from its participation in the TCTS agreements. This is not a case where AGT relies or has relied on

the Railway Act for certain advantages and then argues that limitations placed upon those advantages by the legislation do not apply to the Crown. As stated above, at common law the Crown can gain advantages from a statute without necessarily waiving its immunity therefrom. Waiver only occurs where the Crown takes the benefit of a statute divorced from its enumerated restrictions. (emphasis added)
Alberta Government Telephones at 69

97.

There is no enumerated restriction on the right to assert copyright stating that you must

recognize the copyright of others. Indeed, infringing the copyright of others has no bearing whatsoever on ones own assertion of copyright. 98. In Sparling, the Crown could not gain greater rights than a shareholder would normally

have in purchasing a share. The limitations on share ownership defined what a share is and the right to own a share. This is not remotely analogous to the assertion of copyright, which is not in any way defined by the recognition of others rights under the Copyright Act. Access Copyright is making a very confusing assertion by trying to link these two concepts under the relatively narrow benefit/burden exception. 99. The restrictions on asserting copyright are the scope of rights given to copyright owners

as defined in the Copyright Act. If one were to disregard section 12 for the sake of argument, the burdens attendant on the Crown assertion of copyright would be the term limits and the exceptions, such as fair dealing, to those rights. In other words, the Crown could not take just the right to bring a suit for copyright infringement without recognizing the exceptions to copyright infringement, for this would exceed the rights given to bring such a suit under the Copyright Act. 100. The benefit/burden exception does not operate as some sort of doctrine of give-and-take

fairness. It is a logical principle that operates to keep the Crown from inventing new rights by ignoring the portions of a statute that define a rights limitations. Recognition of anothers rights under the Copyright Act does not define the assertion of copyright. The obligation to respect the copyright of others generally is not, in any logical way, linked under the benefit/burden exception to the right to assert copyright for oneself. Provincial and Territorial Licensing Agreements 101. Access Copyright also argues, apparently interchangeably, that the benefit which would

waive Crown immunity is the fact that the provinces and territories have previously entered into

agreements to use the works of others and to allow others to use their works. In its Factum, Access asserts that [o]utside the [Copyright] Act, no one has the right to use works protected by copyright. If the Crown chooses to use copyrighted works, it must be using them pursuant to the rights granted under the Act.
Access Copyright Factum at para. 121

102.

This is clearly not the case in this proceeding. As discussed above, outside of the

Copyright Act, copyright ownersother than the Crown, which has rights at common laware the ones who have no rights to control the use of their works by others. The clear wording [w]ithout prejudice to any rights or privileges of the Crown in section 12 of the Copyright Act shows that the Act is not exhaustive when it comes to the rights of the Crown. 103. Where the Crown is immune to the application of the Copyright Act, it is not required to

pay for the use of copyright materials. Thus, where the Crown is immune, a licence to use copyright materials is not a benefit per se. 104. Even if, for the sake of argument, the licensing agreements were a benefit to the Crown

under the Copyright Act, Access Copyright would have only established the benefit, but not the burden. Access Copyright has not demonstrated, beyond vague assertions of fairness, how this supposed benefit has the attendant burden of having to pay parties which have no license agreement or other contract with the Crown. Limited Waiver 105. Access Copyright disputes the Consortium members position on the limited nature of

waiver under the benefit/burden exception.

Access Copyright Factum at para. 145

106.

The Consortium members argument is simply that any past waiver of immunity would be

legally limited to the particular fact situations and statutory provisions that were in issue. This is because the benefit/burden exception to the presumption of Crown immunity operates on the basis of specific factual situations, and not at large. In other words, if, for the sake of argument, the Crown was found to have waived its immunity in respect of a particular infringement case in which the Crown asserted the benefit of copyright protection, that waiver would apply only in respect of the party against whom it brought suit for infringement. If the Crown had been found

to waive immunity by virtue of the benefit of a license agreement, that waiver would only apply in respect of that agreement. 107. In Eros-quipe, the Crown was found to be subject to the infringement portion of the

Copyright Act only in respect of the work for which the Crown had taken an exclusive license. The Crown was not, and could not have been, found to waive immunity in respect of any other parties or any other agreements. 108. states: [I]n Neary v. Nova Scotia (Attorney General), the Nova Scotia Court of Appeal categorically held that the Crown could not, in any tortuous cause of action where it is a defendant, claim the benefit of s. 10 of Nova Scotias Fatal Injuries Act but avoid the burden of s. 3 of the Limitations of Actions Act.
Access Copyright Factum at para. 147 (emphasis added)

The examples of categorical decisions on the benefit/burden exception that Access

Copyright lists clearly show its misunderstanding of this notion. For instance, Access Copyright

109.

Access Copyright seems to believe that categorical means that in every situation

where the facts and provisions in issue are identical, the benefit/burden exception will apply in the same manner. This is obvious, and beside the point. 110. The Consortium members point here is that Access Copyright is trying to draw a

connection between disparate and individual past alleged benefits, such as expired license agreements, and the burden of paying each one of Access Copyrights members for the entirety of Access Copyrights broad repertoire of work for an indefinite period of time into the future. V. The Onus of Rebutting the Presumption of Crown Immunity 111. Access Copyright, in the Overview section of its Factum, declares that the

presumption of Crown immunity is a misnomer: It is important to note that although it is often referred to as a presumption, because the rule of Crown immunity is in fact a rule of statutory construction, it is incorrect to speak of one party or another bearing the onus to shift the presumption. No party bears an onus to establish that a particular statute is applicable to the Crown rather it is for the tribunal or court to determine whether, in accordance with the applicable principles of statutory construction and/or of Crown immunity, the statute in question is

binding on the Crown. Here, neither Access Copyright nor the Consortium bears any onus.
Access Copyright Factum at para. 14

112.

With respect, Access Copyright is incorrect to argue that Crown immunity is a rule of

construction. Instead, Crown immunity is clearly a presumption. The common law and the text of section 17 of the Interpretation Act make it clear that it is presumed that statutes do not bind the Crown. Because Crown immunity is a presumption, the onus is on a party wishing to claim that the Crown is bound by a statute to prove that an exception from Crown immunity applies. 113. The onus in this case, therefore, is on Access Copyright to prove that an exception from

Crown immunity applies. The presumption provides that a statute will be presumed not to apply to the Crown in the absence of express language stating otherwise. The Copyright Act lacks any such language, and so Crown immunity must be presumed to apply. This Court is not, however, entitled to question the basic concept of Crown immunity, for Parliament has unequivocally adopted the premise that the Crown is prima facie immune.
R. v. Eldorado Nuclear, [1983] 2 SCR 551, p. 558 (emphasis added)

MacDonnell, J. put it well: Different considerations apply to the defence of Crown immunity because, as will be seen, there is a statutory presumption that the Crown is not bound by statutes. That presumption must be overcome, and in my view, the party seeking to bind the Crown has that burden.
R. v. Greening; R. v. Webb, 1992 CarswellOnt 57, 43 MVR (2d) 53, at para. 39 (emphasis added)

114.

As the party seeking to rebut the presumption, Access Copyright bears the burden of

overcoming that presumption. This is simply the nature of a presumption. Access Copyrights own quote from Blacks Law Dictionary affirms this: presumption of law is a legal assumption that a court is required to make if certain facts are established and no contradictory evidence is produced.
Blacks Law Dictionary (8th ed., 2nd reprint, Thomson, 2007), p. 1224 (emphasis added)

115.

Although Access Copyright makes this complaint in the Overview section of its Factum,

by the time it reaches the benefit/burden exception, Access Copyright has, in fact, accepted that it bears this onus because it argues that it has met the necessary burden of proof.
Access Copyright Factum at paras. 134-136

116.

Since it is clear that the Copyright Act has no language binding the Crown, Access

Copyright bears the onus of convincing the Copyright Board that the clear language of section 17 of the Interpretation Act does not apply in this matter. The presumption of Crown immunity, in absence of clear binding statutory language, remains the default answer. Common law exceptions to the Interpretation Act must be interpreted strictly, narrowly and with great care, to ensure that Parliaments intent is not thwarted by the exceptions being applied in an overly legislative manner.
Alberta Government Telephones at 71

VI. Conclusion 117. As also noted in paragraph 95 of their Legal Arguments dated June 15, 2011, the

Consortium members believe that their position with respect to the Crown immunity issue discussed above requires that the Board determine that Access Copyrights proposed tariff for each immune jurisdiction is without legal foundation. As such, the Board would be without statutory jurisdiction under the Copyright Act to either consider, or certify, such a proposed tariff in respect of these jurisdictions. * * * * *

ALL OF WHICH is respectfully submitted, this 14th day of September, 2011.

______________________ Wanda Noel

______________________ J. Aidan ONeill

______________________ Ariel A. Thomas Of Counsel for the Consortium members