BETWEEN:
CANADIAN RECORDING INDUSTRY ASSOCIATION
and
Heard at Ottawa, Ontario, on October 17, 2006.
Judgment delivered from the Bench at Ottawa, Ontario, on October 17, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Docket: A-593-05
Citation: 2006 FCA 336
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
CANADIAN RECORDING INDUSTRY ASSOCIATION
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on October 17, 2006)
[1] This is an application for judicial review by the Canadian Recording Industry Association (“CRIA”) to set aside an order made by the Copyright Board in the course of a proceeding to consider a proposed tariff of the royalties payable to a collective, CSI, in respect of “online music services” for the reproduction of certain musical works in the years 2005 to 2007.
[2] Following CRIA’s decision that it would no longer represent certain of its members (“the B Class members”) before the Board in this proceeding, the Board ordered CRIA to send a notice to its members saying that it had been instructed by the Board to advise them that it would not be representing the B Class members in the proceeding before the Board and that this was CRIA’s decision, not the Board’s. CRIA challenges the validity of this order on three grounds.
[3] First, it says that the Board made the order in breach of the duty of fairness because the Board issued it without giving CRIA prior notice and an opportunity to make submissions. We disagree. Any duty of fairness owed by the Board with respect to issuing the order was discharged when it subsequently confirmed the order after considering submissions from CRIA as to why the order should not have been made. Although CRIA disagrees with the reconsideration decision, it cannot say that its arguments were not heard by the Board.
[4] Second, CRIA says that the order was not authorized by section 66.71 of the Copyright Act, R.S.C. 1985, c. C-30. We disagree. The language of the provision is very broad and provides that the Board
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66.71 … may at any time cause to be distributed or published, in any manner and on any terms and conditions that it sees fit, any notice that it sees fit to be distributed or published.
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66.71 […] peut en tout temps ordonner l’envoi ou la publication de tout avis qu’elle estime nécessaire, […] ou y procéder elle-même, et ce de la manière et aux conditions qu’elle estime indiquées.
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In our opinion, these words authorized the kind of order made by the Board in connection with this royalty tariff proceeding.
[5] Third, CRIA submits that if, contrary to its submission, the Board has the power to make the kind of order that it made in this case, it exercised its power unreasonably. We do not agree. It was, in our view, perfectly reasonable for the Board to seek to assure itself that the B Class members were made aware that CRIA had decided not to represent them and that their interests could therefore not be taken into consideration when the Board rendered its decision on the proposed tariff.
[6] Counsel argues that the Board could have used less formal means to deal with any concerns that it may have had on this score. This may be so. However, that does not detract from the fact that the Board had the legal power to do what it did.
[7] For these reasons, the application for judicial review will be dismissed with costs.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-593-05
STYLE OF CAUSE: CANADIAN RECORDING INDUSTRY ASSOCIATION v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 17, 2006
REASONS FOR JUDGMENT OF THE COURT BY: Létourneau, Noël, Evans JJ.A.
DELIVERED FROM THE BENCH BY: Evans J.A.
APPEARANCES:
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For the Applicant
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For the Respondent
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SOLICITORS OF RECORD:
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Ottawa, Ontario
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For the Applicant
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Deputy Attorney General of Canada |
For the Respondent |