Federal Court of Appeal Decisions

Docket: A-371-99

PRESENT: THE HONOURABLE MR. JUSTICE ROTHSTEIN

BETWEEN:

     THE EVANGELICAL FELLOWSHIP OF CANADA

     PRECISION SOUND CORPORATION

     WESTERN IMPERIAL MAGNETICS LTD.

     APPLICANTS

     - and -

     CANADIAN MUSICAL REPRODUCTION RIGHTS AGENCY

     NEIGHBOURING RIGHTS COLLECTIVE OF CANADA

     SOCIÉTÉ DE GESTION DES DROITS DES ARTISTES-MUSICIENS

     SOCIÉTÉ DU DROIT DE REPRODUCTION DES AUTEURS,

     COMPOSITEURS ET ÉDITEURS AU CANADA,

     SOCIETY OF COMPOSERS, AUTHORS AND MUSIC

     PUBLISHERS OF CANADA

     (hereinafter referred to as the Music Collectives)

     - and -

     FUJI PHOTO FILM CANADA INC.

     SONY OF CANADA LTD.

     MEMTEK CANADA LTD.

     MAXELL CANADA

     AVS TECHNOLOGIES INC.

KODAK CANADA INC.

(hereinafter referred to as the "Canadian Storage Media Alliance" or "CSMA")

- and -

COPYRIGHT BOARD

- and -

THE ATTORNEY GENERAL OF BRITISH COLUMBIA

- and -

CANATRON CORPORATION

MS. MARY ANNE EPP, d.b.a. Bluebird Events

MR. A. MARK HAMBRIDGE for FIRST EVANGELICAL LUTHERAN CHURCH

MR. GLENN HOWELL for ST. JOHN'S SHAUGHNESSY ANGLICAN CHURCH

MR. WES KLAUSE

MR. L. GRAHAM NEWTON

MS. KATIE WREFORD, d.b.a. STUDIO-A-MIRADOR

(hereinafter referred to as "additional non-represented participants")

RESPONDENTS

REASONS FOR ORDER OF THE COURT

[1]The applicant seeks a writ of prohibition against the Copyright Board from proceeding with a hearing to commence on August 24, 1999. The applicant says that the Copyright Board is without jurisdiction to hear and decide the matter before it for a number of reasons, including that Part VIII of the Copyright Act is invalid legislation as being invalid copyright law, invalid taxation law, and as being contrary to sections 2 and 15 of the Canadian Charter of Rights and Freedoms. Being of the view that the Board is without jurisdiction in the matter, the applicant seeks to avoid becoming embroiled in a lengthy hearing on the merits.

[2]The issue on this motion is whether the writ of prohibition is properly sought in the Appeal Division of the Federal Court.

[3]Paragraph 18(1)(a) of the Federal Court Act provides that, subject to section 28 of the Act, the Trial Division has exclusive original jurisdiction to issue a writ of prohibition against any federal board. Subsection 18(3) provides that the remedies provided for in subsection 18(1), e.g. prohibition, may be obtained only on an application for judicial review made under section 18.1.

[4]Paragraph 28(1)(j) provides that the Court of Appeal has jurisdiction to hear and determine applications for judicial review made in respect of the Copyright Board. By subsection 28(2), section 18.1 applies to any matter within the jurisdiction of the Court of Appeal under subsection 28(1). Subsection 28(3) says that when the Court of Appeal has such jurisdiction, the Trial Division does not have jurisdiction.

[5]Although no decision has been rendered, a prohibition application may only be brought by way of application for judicial review. In Inspiration Television Canada Inc. v. Canada¹, Muldoon J. held that an application for an interim injunction relating to the CRTC was properly brought before the Court of Appeal because the CRTC was a Board enumerated in subsection 28(1). The same reasoning is applicable to the Copyright Board.

[6]      For these reasons, I conclude that the application for a writ of prohibition and the application for an interim prohibition or stay of the Copyright Board's proceeding is properly brought in the Court of Appeal.

[7]      Having said this, the applicant should be aware of the jurisprudence in this Court in respect of interlocutory proceedings brought before the Court that delay trials or hearings.²

[8]      There are also other considerations in the case of an application for a writ of prohibition to the Federal Court of Appeal. There is a question as to whether, in complex jurisdictional matters involving the Charter, the Appeal Division should be the court of first instance, and possibly last instance, to hear and decide such matters. How is the appropriate factual basis is to be established, especially in respect of Charter issues and, in particular, issues relating to section 1 of the Charter? Does the Board have jurisdiction to consider Charter issues relating to its jurisdiction and if so, should the Board consider bifurcating its hearing so as to deal with and decide the jurisdictional issues at the outset?

[9]      These are all issues to be addressed when the application for interim prohibition or stay is argued before a judge of this Court and no decision is made with respect to them here. However, the parties should be aware that the granting of prerogative relief is discretionary and these will be issues that may be of interest to the Court.

[10]      An order will issue that the application for writ of prohibition and ancillary interim relief is properly brought in the Appeal Division.

    

     J.A.

June 30, 1999

__________________

     ¹      [1992] 3 F.C. 350

     ²      See Nidek v. Visx , Court File A-313/98, November 20, 1998, per: Sexton J.A.