Date: 20010205
Docket: A-764-99
Citation: 2001 FCA 4
PRESENT: STONE J.A.
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS AND MUSIC
PUBLISHERS OF CANADA
Applicant
and
CANADIAN ASSOCIATION OF INTERNET PROVIDERS,
CANADIAN CABLE TELEVISION ASSOCIATION,
AT & T CANADA LONG DISTANCE SERVICES COMPANY,
MCI COMMUNICATIONS CORPORATION,
BELL/EXPRESSVU, CANADIAN ASSOCIATION OF BROADCASTERS, TELUS COMMUNICATIONS INC., BELL CANADA,
CANADIAN BROADCASTING CORPORATION,
CANADIAN MOTION PICTURE DISTRIBUTORS ASSOCIATION,
CANADIAN RECORDING INDUSTRY ASSOCIATION,
TIME WARNER INC., ALIANT INC., MTS COMMUNICATIONS INC.
and SASKATCHEWAN TELECOMMUNICATIONS
Respondents
Heard at Ottawa, Ontario, on Tuesday, January 30, 2001.
Order rendered at Ottawa, Ontario, on Monday, February 5, 2001.
REASONS FOR ORDER BY: STONE J.A.
Date: 20010205
Docket: A-764-99
Citation: 2001 FCA 4
PRESENT: STONE J.A.
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS AND MUSIC
PUBLISHERS OF CANADA
Applicant
and
CANADIAN ASSOCIATION OF INTERNET PROVIDERS,
CANADIAN CABLE TELEVISION ASSOCIATION,
AT & T CANADA LONG DISTANCE SERVICES COMPANY,
MCI COMMUNICATIONS CORPORATION,
BELL/EXPRESSVU, CANADIAN ASSOCIATION OF BROADCASTERS, TELUS COMMUNICATIONS INC., BELL CANADA,
CANADIAN BROADCASTING CORPORATION,
CANADIAN MOTION PICTURE DISTRIBUTORS ASSOCIATION,
CANADIAN RECORDING INDUSTRY ASSOCIATION,
TIME WARNER INC., ALIANT INC., MTS COMMUNICATIONS INC.
and SASKATCHEWAN TELECOMMUNICATIONS
Respondents
REASONS FOR ORDER
STONE J.A.
[1] The moving parties (several of the named respondents in the underlying section 28 application brought by the applicant ("SOCAN") against a decision of the Copyright Board (the "Board") dated October 27, 1999) seek an order striking the records filed by the respondents Canadian Recording Industry Association ("CRIA") and Canadian Motion Picture Distributors Association ("CMPDA").
[2] The Board's decision was concerned with a statement of proposed royalties to be paid for public performance, or the communication to the public by telecommunication, in Canada, of musical works over the Internet. The moving parties, who could be liable for such royalties as internet access providers in Canada, participated in the proceeding before the Board. Both CRIA and CMPDA sought leave and were permitted to intervene in that proceeding for the reason that, as the Board found, they would "enrich the public record and allow the Board to render a more enlightened decision".1
[3] Both CRIA and CMPDA did in fact intervene before the Board where they adopted a position fully in support of SOCAN.
[4] Not being fully satisfied with the Board's decision, SOCAN instituted the section 28 application. The moving parties oppose that application. In early December 1999, CRIA and CMPDA each filed a Notice of Appearance pursuant to Rule 305 in which it was stated that each intend "to oppose" the section 28 application. However, in November 2000, CRIA and CMPDA filed their respective record in the section 28 proceeding in which they support SOCAN's position. This took the moving parties by surprise, given the content of the notices of appearance that had been earlier filed.
[5] The moving parties submit that the filing of the records by CRIA and CMPDA is highly irregular and not at all sanctioned by the Federal Court Rules, 1998 (the "Rules"). They contend that once CRIA and CMPDA filed their respective Rule 305 notice of appearance it was no longer open to either of them to file a record which contradicted the position taken in that notice. They also contend that the notice misled them into believing that CRIA and CMPDA are truly opposed to the section 28 application and that this has placed the moving parties in some jeopardy. Having already responded to SOCAN's position in the section 28 proceeding, the moving parties are now faced with having to respond to additional arguments and even to the additional evidence that is contained in the records filed by CRIA and CMPDA.
[6] CRIA and CMPDA maintain that in filing their respective notice of appearance and record they acted in accordance with the Rules. Because they had been intervenors in the proceeding before the Board they were properly named as respondents in the section 28 application pursuant to Rule 303(1)(a) as persons "directly affected" by the order being sought by SOCAN. As a respondent, each was then entitled to serve and file the Rule 305 notice of appearance and Rule 310 record in the section 28 proceeding. In any event, CRIA and CMPDA maintain that they seek only to argue points which SOCAN itself raised in its originating notice and that they ought to be able to do so even if SOCAN is not pursuing the points. Moreover, they submit that they are not, as is SOCAN, seeking to argue for strict liability to pay royalties and, accordingly, are actually "opposing" SOCAN's position in its section 28 application.
[7] It seems to me that the governing procedure must be found in the Rules as they are presently drafted and which replaced the former rules. The content and organization of the Rules was settled in 1998 prior to their adoption after several years of work by the Federal Court Rules Committee established pursuant to section 45 of the Federal Court Act. One of the purposes was to codify the rules that are to govern applications for judicial review. Those rules are found in Part 5 of the Rules.
[8] The following rules in Part 5 are relevant to the issue in dispute:
| 301. An application shall be commenced by a notice of application in Form 301, setting out
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301. La demande est introduite par un avis de demande, établi selon la formule 301, qui contient les renseignements suivants:
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| 303. (1) Subject to subsection (2), an applicant shall name as a respondent every person
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303. (1) Sous réserve du paragraphe (2), le demandeur désigne à titre de défendeur:
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| 304. (1) Unless the Court directs otherwise, within 10 days after the issuance of a notice of application, the applicant shall serve it on
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304. (1) Sauf directives contraires de la Cour, le demandeur signifie l'avis de demande dans les 10 jours suivant sa délivrance:
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| 305. A respondent who intends to oppose an application shall, within 10 days after being served with a notice of application, serve and file a notice of appearance in Form 305. |
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| 305. Dans les 10 jours après avoir reçu signification de l'avis de demande, le défendeur, s'il entend s'opposer à la demande, signifie et dépose un avis de comparution, établi selon la formule 305. |
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| 309. (1) An applicant shall, within 20 days after completion of all parties' cross-examination or the expiration of the time for doing so, whichever is earlier,
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309. (1) Dans les 20 jours suivant le contre-interrogatoire des auteurs des affidavits déposés par les parties ou dans les 20 jours suivant l'expiration du délai prévu pour sa tenue, selon celui de ces délais qui est antérieur à l'autre, le demandeur:
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| 310. (1) A respondent to an application shall, within 20 days after service of the applicant's record,
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310. (1) Dans les 20 jours après avoir reçu signification du dossier du demandeur, le défendeur:
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[9] It is also to be noted that, in general, the provisions of Rule 145(a) deprive a person who has been served with an originating document of the right to be served with any further documents in the matter if that person has failed to file a notice of appearance. That Rule reads:
| 145. Subject to subsection 207(2), where a person has been served with an originating document and
no further documents in the proceeding need be served on the person prior to final judgment unless the Court orders otherwise. |
145. Sous réserve du paragraphe 207(2), lorsqu'une personne a reçu signification d'un acte introductif d'instance et qu'elle se trouve dans l'une des situations suivantes, la signification des autres documents dans le cadre de l'instance n'est requise que si la Cour l'ordonne:
La dérogation ne vise pas le jugement final et les documents subséquents. |
[10] The moving parties maintain that CRIA and CMPDA were not "directly affected" by the order which SOCAN seeks and, accordingly, that they ought not to have been named as respondents pursuant to Rule 303(1)(a). If that submission is correct it would have been open to CRIA or CMPDA or indeed any other party to the proceeding to move to have them struck as parties respondent. That was not done. Accordingly, I see no need to determine whether CRIA or CMPDA were properly joined as respondents pursuant to Rule 303(1)(a). I would note, however, that traditionally this Court has taken an expansive view of who should be named as respondents in a section 28 application. See Tetzlaff v. Canada (Minister of the Environment), [1992] 2 F.C. 215 (F.C.A.) per Hugessen J.A., at 227. Although the language of Rule 303(1)(a) is also quite broad, it is worded differently from that which appeared in former Rule 1602(3). Moreover, the former rules contained no requirement for filing a notice of appearance.
[11] As I see it, Rule 305 was intended to play a pivotal role in the overall scheme and operation of the Part 5 rules. That Rule requires a named respondent to signify by way of a notice of appearance an intention "to oppose an application". This step allows the parties and the Court to know at an early stage which of the named respondents will truly oppose the section 28 application. The service and filing of the notice of appearance ensure that any respondent truly opposed to the application will be served with all further documents in the proceeding and so enable effective participation. As I have already stated, if no notice of appearance is filed, Rule 145(a) disentitles a named respondent from being served with any further documents in the section 28 proceeding.
[12] I am not persuaded that Rule 310 absolutely entitled CRIA and CMPDA to file their respective record in support of SOCAN in the circumstances of this case. As we have seen, Rule 305 requires that "[a] respondent who intends to oppose an application" file a respondent's record. I agree with the moving parties that CRIA and CMPDA are not actually responding to SOCAN's application because they do not "oppose" it. Their stance is of advancing different arguments with a view to persuading the Court to allow SOCAN's application for different reasons. Moreover, as these arguments were not raised in the proceeding before the Board, they cannot be raised at the section 28 application stage: Toussaint v. Conseil canadien des relations du travail et al (1993), 160 N.R. 396 (F.C.A.), per Décary J.A., at 399.
[13] I therefore conclude that the records filed by CRIA and CMPDA were not properly filed and that they ought to be struck.
[14] Counsel for the moving parties also requests a declaration that neither CRIA nor CMPDA are "directly affected" by the Board's decision and therefore would have no standing under subsection 18.1(1) of the Federal Court Act to launch separate judicial review applications against the decision. In my view, however, a determination of that question is best left to the Court on a properly supported motion and fuller argument should such a motion be brought.
[15] The moving parties concede that if the Court should strike the application records in issue it should do so without prejudice to the rights of CRIA or CMPDA to seek leave to intervene in SOCAN's section 28 proceeding pursuant to Rule 109. I agree.
[16] The motion will be granted with costs payable forthwith and the records filed by CRIA and CMPDA will be struck without prejudice to those associations seeking leave to intervene in SOCAN's section 28 proceeding pursuant to Rule 109.
"A.J. Stone"
J.A.
__________________1 Motion Record of Moving Parties, at 32.