SUPREME
COURT OF CANADA
Between:
Canadian
Artists’ Representation/Front des artistes canadiens and
Regroupement
des artistes en arts visuels du Québec
Appellants
and
National
Gallery of Canada
Respondent
- and -
Writers
Guild of Canada, Canadian Screenwriters Collection Society,
Société
du droit de reproduction des auteurs, compositeurs et
éditeurs
du Canada and SODRAC 2003 Inc.
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell,
Moldaver and Wagner JJ.
Reasons
for Judgment:
(paras. 1 to 31)
|
Rothstein J. (McLachlin C.J. and LeBel, Abella,
Cromwell, Moldaver and Wagner JJ. concurring)
|
Appeal heard and
judgment rendered: May 14, 2014
Reasons delivered: June
12, 2014
carfac v.
national gallery of canada, 2014
SCC 42, [2014] S.C.R. 197
Canadian Artists’ Representation/Front des
artistes canadiens and
Regroupement des artistes en arts
visuels du Québec Appellants
v.
National Gallery of Canada Respondent
and
Writers Guild of Canada,
Canadian Screenwriters Collection Society,
Société du droit de reproduction des
auteurs,
compositeurs et éditeurs du Canada and
SODRAC 2003
Inc. Interveners
Indexed as: Canadian Artists’ Representation v. National
Gallery of Canada
2014 SCC 42
File No.: 35353.
Hearing and
judgment: May 14, 2014.
Reasons delivered: June 12, 2014.
Present: McLachlin C.J. and LeBel, Abella, Rothstein,
Cromwell, Moldaver and Wagner JJ.
on appeal from the federal court of appeal
Culture
and entertainment law — Status of the artist — Copyright — Collective bargaining
— Duty to bargain in good faith — Whether artists’ associations are precluded
from bargaining minimum fees for use of existing artistic works in agreements
negotiated under Status of the Artist Act — Whether allowing scale agreements
imposing minimum fees for provision of copyrights for existing works conflicts
with Copyright Act — Whether Tribunal’s finding that National Gallery of Canada
failed to bargain in good faith was reasonable — Standard of review — Status of
the Artist Act, S.C. 1992, c. 33 — Copyright Act, R.S.C. 1985, c. C‑42 .
The
Status of the Artist Act (“SAA ”) governs professional relations
between artists and certain federal government institutions that engage artists
to provide an artistic production. The SAA provides for the
certification of associations charged with representing the interests of an
identified sector of artists and negotiating with institutions in order to
conclude scale agreements that set out the “minimum terms and conditions for
the provision of artists’ services and other related matters”. In 2003, CARFAC
and RAAV, certified artists’ associations for Canadian visual artists, jointly
commenced negotiating a scale agreement with the National Gallery of Canada
(“NGC”). Those negotiations went on for four years, until the NGC obtained a
legal opinion upon which it relied to refuse to include in the scale agreement
minimum fees for the licensing or assignment of the copyright in existing
artistic works. Negotiations broke down due to the NGC’s position on this
issue. CARFAC and RAAV filed a complaint with the Canadian Artists and
Producers Professional Relations Tribunal that the NGC had failed to bargain in
good faith.
The Tribunal
concluded that the licensing or assignment of the copyright in existing works
can be subject to binding minimum fees set forth in scale agreements negotiated
pursuant to the SAA , provided that those agreements do not bind
collective societies established under the Copyright Act . It also held
that the NGC had failed to bargain in good faith by adopting an uncompromising
position based solely on one legal opinion, a position that it should have
known would not be accepted by CARFAC/RAAV. The majority in the Federal Court
of Appeal allowed the NGC’s application for judicial review, holding that
allowing scale agreements to impose minimum fees for existing works would
conflict with the Copyright Act . In light of this finding, the appellate
court concluded that the NGC had not failed to bargain in good faith.
Held:
The appeal should be allowed.
The
Tribunal’s conclusion was reasonable. Its interpretation of the SAA was
not contrary to the plain meaning of that Act. There was no reason for the
Federal Court of Appeal to overturn the Tribunal’s conclusion that minimum fees
for the provision of artists’ copyrights for existing works are eligible for
inclusion in scale agreements. Moreover, to conclude that such minimum fees are
excluded from scale agreements would result in the SAA having a limited
impact on the achievement of Parliament’s express recognition that artists
should be compensated for the use of their works, including the public lending
of those works.
The
collective bargaining conducted by artists’ associations in respect of scale
agreements covering the licensing or assignment of copyrights to existing
artistic works does not contradict any provision of the Copyright Act . Establishing
a minimum fee for the use of existing works does not affect any of the rights
conferred on copyright holders under s. 3 of the Copyright Act nor
do the scale agreements bind collective societies governed by that same Act.
The
Tribunal extensively canvassed the law regarding good faith bargaining and
closely examined the evidence put forth by the parties on the issue. It concluded
that the NGC had failed to bargain in good faith. On a reasonableness review,
it is not for this Court to reweigh the evidence considered by the Tribunal. In
view of the findings of fact of the Tribunal, it cannot be said that its
decision was unreasonable.
Cases Cited
Referred
to: Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996]
1 S.C.R. 369; Alberta (Information and Privacy Commissioner) v. Alberta
Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Euro‑Excellence
Inc. v. Kraft Canada Inc., 2007 SCC 37, [2007] 3 S.C.R. 20; Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339.
Statutes and Regulations Cited
Copyright Act, R.S.C. 1985, c. C‑42,
ss. 2 “collective society”, 3, 13(4), 70.1, 70.13, 70.15.
Jobs, Growth and Long‑term Prosperity Act, S.C. 2012, c. 19, s. 532 .
Status of the Artist Act, S.C. 1992, c.
33, ss. 2 (e), 5 “artists’ association”, “producer”, “scale
agreement”, 6(2), 7, 9(3), 25 to 27, 32, 33(1), 44.
Authors Cited
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th
ed. Markham, Ont.: LexisNexis, 2008.
APPEAL
from a judgment of the Federal Court of Appeal (Noël, Pelletier and Trudel JJ.A.),
2013 FCA 64, 443 N.R. 121, 54 Admin. L.R. (5th) 1, [2013] F.C.J. No. 261
(QL), 2013 CarswellNat 507, setting aside a decision of the Canadian Artists
and Producers Professional Relations Tribunal, 2012 CAPPRT 053
(http://decisia.lexum.com/cirb‑ccri/saa‑lsa/en/item/8107/index.do),
[2012] C.A.P.P.R.T.D. No. 1 (QL), 2012 CarswellNat 4332. Appeal allowed.
David Yazbeck, Michael
Fisher and Wassim Garzouzi, for the appellants.
Guy P. Dancosse, Q.C., Sophie Roy‑Lafleur and Guy Régimbald,
for the respondent.
Joshua S. Phillips and Karen Ensslen, for the interveners the Writers Guild of
Canada and the Canadian Screenwriters Collection Society.
Colette Matteau, for the interveners Société du droit de reproduction des auteurs,
compositeurs et éditeurs du Canada and SODRAC 2003 Inc.
The
judgment of the Court was delivered by
[1]
Rothstein J. — This appeal raises the issue of the scope
of collective bargaining permitted by an Act specific to the artistic sector,
and the relationship of that Act with the Copyright Act, R.S.C. 1985, c.
C-42 .
I.
Background and History
[2]
The Status of the Artist Act, S.C. 1992,
c. 33 (“SAA ”), was enacted “to establish a framework to govern
professional relations between artists and producers” (s. 7 ), “producers” being
limited to certain federal government institutions and broadcasting
undertakings that engage artists to provide an artistic production (ss. 5
“producer” and 6(2)(a)). The SAA provides
for the certification of “artists’ associations” to represent the professional
and socio-economic interests of an identified sector of artists (ss. 5
“artists’ association” and 25 to 27). Certified artists’ associations negotiate
“scale agreements” with a producer or association of producers that set out the
“minimum terms and conditions for the provision of artists’ services and other
related matters” (s. 5 “scale agreement”). Once signed, scale agreements bind
all artists in the identified sector — whether or not they are formal members
of the artists’ association — in their dealings with that producer or
association of producers, with the exception of work undertaken by defined employees
in the course of employment (ss. 9(3) , 33(1) and 44 ). At all relevant times for
this appeal, the Canadian Artists and Producers Professional Relations Tribunal
(“Tribunal”) was the administrative tribunal charged with applying and
enforcing the SAA (in 2012, this responsibility was transferred to the
Canada Industrial Relations Board pursuant to the Jobs, Growth and Long-term
Prosperity Act, S.C. 2012, c. 19, s. 532 ). Nearly 180 scale agreements have
been negotiated by artists’ associations certified by the Tribunal, many of
them containing matters related to copyright.
[3]
The Copyright Act contains several
provisions that are relevant to the present appeal. Section 2 defines a
“collective society” (sometimes referred to as a “copyright collective”) as a
society, association or corporation that carries on the business of collective
administration of copyright for the benefit of artists (among others) who
assign, grant a licence, or otherwise authorize the society to act on their
behalf with respect to their copyrights so assigned or authorized. Collective
societies must either operate a licensing scheme for a repertoire of artists’
works whereby the society determines the conditions under which it will
authorize the use of such works, or collect and distribute royalties payable
under the Copyright Act by users of such works. The Société du droit de
reproduction des auteurs, compositeurs et éditeurs du Canada (“SODRAC”), an
intervener in this case, is a collective society within the meaning of the Copyright
Act .
[4]
Copyrights assigned or exclusively licensed to
the collective society must comply with the Copyright Act requirement
that such assignments or exclusive licences be in writing and signed by the
copyright holder or his or her agent (s. 13(4) ). Collective societies may set
tariffs for the use of such copyrights (ss. 70.1 and 70.13 ). The Copyright
Board is responsible for certifying these tariffs (s. 70.15 ).
[5]
The Canadian Artists’ Representation/Front des
artistes canadiens (“CARFAC”) and Regroupement des artistes en arts visuels du
Québec (“RAAV”) are, respectively, the certified artists’ associations for
Canadian visual artists outside and within Quebec. In 2003, they jointly
commenced negotiating an SAA scale agreement with the National Gallery
of Canada (“NGC”). Among the list of items which CARFAC/RAAV sought to bargain
was the establishment of minimum fees payable by the NGC for the use of
existing works of visual artists. The NGC expressed reservations about
including such minimum fees in the scale agreement, stating that it would be
seeking legal advice on this issue. Over the next four years, the NGC
nevertheless proceeded to negotiate a draft scale agreement that included
existing works.
[6]
In 2007, the NGC obtained a legal opinion upon
which it relied to state that CARFAC/RAAV did not have the authority to
negotiate scale agreements providing for minimum fees for the licensing or
assignment of the copyright in existing works as it did not have written
authorization from each artist covered by the agreement. On that basis, the NGC
presented a revised draft scale agreement from which all references to existing
works were removed. After some attempts to discuss the issue further,
CARFAC/RAAV filed a complaint with the Tribunal that the NGC had breached
s. 32 of the SAA by failing to bargain in good faith.
[7]
The Tribunal concluded that the licensing or
assignment of the copyright in existing works can be subject to binding minimum
fees set forth in scale agreements, and that the NGC had failed to bargain in
good faith (2012 CAPPRT 053). It found that previous decisions by the Tribunal
had recognized that scale agreements can include minimum fees for the use of
existing works, and inclusion of copyright matters has become standard in the
cultural sector. It said that the SAA complements and supplements the Copyright
Act , and that artists’ associations can negotiate scale agreements under
the SAA provided that those agreements do not bind collective societies
established under the Copyright Act (paras. 99-104).
[8]
With respect to s. 32 of the SAA , which
requires artists’ associations and producers to bargain in good faith, the
Tribunal concluded that the NGC failed this duty by presenting a revised draft
scale agreement which excluded all matters related to the use of existing
artistic works “without prior notice” (para. 147) — in contravention of its
established negotiating practice with CARFAC/RAAV — without reasonable
alternatives, and based solely on one legal opinion. The NGC’s position on
minimum fees for the use of existing works was uncompromising, and one that the
NGC should have known would not be accepted by CARFAC/RAAV. Applying this
Court’s decision in Royal Oak Mines Inc. v. Canada (Labour Relations Board),
[1996] 1 S.C.R. 369 (“Royal Oak Mines”), the Tribunal concluded that the
NGC had violated s. 32 of the SAA by failing to bargain in good faith
(paras. 147-52). It ordered the NGC to comply with the SAA , establish a
bargaining schedule with CARFAC/RAAV and provide monthly reports to the
Tribunal (paras. 171-73).
[9]
The majority in the Federal Court of Appeal
allowed the NGC’s application for judicial review. Applying the standard of
review of correctness, the majority held that allowing scale agreements to
impose minimum fees for existing works would conflict with the Copyright Act
because only copyright holders can establish limits on how their copyright is
exercised (2013 FCA 64, 443 N.R. 121, at para. 101). It found that there was no
assignment in writing of copyright to CARFAC/RAAV by the artists in their
sectors as required by s. 13(4) of the Copyright Act , meaning
CARFAC/RAAV cannot impose any limits on how those artists exercise their
copyrights (para. 111). In contrast, scale agreements can pertain to
contracts for commissioned works as no copyright exists at the time an artist
signs such a contract. Further, licensing or assigning the copyright in an
existing work is simply a transfer of property; it is not a service or “other
related matte[r]” as required by the definition of “scale agreement” in the SAA
(paras. 102-8). As a result, minimum fees for the use of existing works cannot
be included in scale agreements. In light of that finding, the majority
concluded that the NGC had not failed to bargain in good faith (para. 115).
[10]
Pelletier J.A., writing in dissent, would have
dismissed the application for judicial review. Applying the standard of review
of reasonableness, he concluded that scale agreements can include minimum fees
for the use of existing works. Granting a producer the right to use an existing
work is analogous to the service provided by hotels and car rental agencies by
allowing others to use their property (para. 83). The Tribunal’s
interpretation of “provision of services” was therefore reasonable (para. 86).
Negotiating minimum fees for the use of existing works does not make an
artists’ association the agent of the artist for the purpose of granting
licences to producers (para. 85). The choice of whether or not to grant a
licence to a producer remains in the hands of the copyright holder and not the
artists’ association. Scale agreements do not apply to works for which the
copyright has been assigned to a collective society such as SODRAC, but rather
only where the artist alone has the right to grant licences to use his or her
work. Accordingly, there is no conflict between the SAA and the Copyright
Act (para. 87).
[11]
Pelletier J.A. also concluded that it was
reasonable for the Tribunal to find that the NGC had failed to bargain in good
faith. The NGC had taken a rigid stance that it knew CARFAC/RAAV could never
accept, based solely on one legal opinion and despite the fact that it had
spent four years negotiating such fees. The industry standard had been to
include copyright matters in scale agreements. Applying Royal Oak Mines,
Pelletier J.A. concluded that an objective assessment of the circumstances
supported the Tribunal’s finding that the NGC had failed to bargain in good
faith (paras. 71-76).
II.
Analysis
[12]
I would allow the appeal and dismiss the
application for judicial review.
A. Standard of Review
[13]
Reasonableness is the presumptive standard of
review when a tribunal is interpreting its home statute or a statute closely
connected to its function and with which it will have particular familiarity.
The SAA applies to, among other things, “authors of artistic
. . . works within the meaning of the Copyright Act ”,
requiring the Tribunal to interpret and apply that statute (SAA, s.
6(2) (b)(i)). None of the exceptions to this presumption of
reasonableness apply. No constitutional questions are at issue. The appeal
raises no true question of jurisdiction, particularly in light of this Court’s
caution to interpret this category of questions narrowly when a tribunal is
interpreting its home statute or statutes closely connected to its function (Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654, at para. 34). No issue is at stake that is of
central importance to the legal system as a whole and that is not within the
Tribunal’s area of expertise. Finally, all parties, interveners and the
Tribunal do not dispute that scale agreements under the SAA do not apply
to collective societies governed by the Copyright Act . Accordingly,
there is no serious question as to the jurisdictional lines between the
Tribunal and the Copyright Board. The applicable standard of review is
reasonableness.
B. Scale Agreements Can Include Existing Works
[14]
In order to determine whether scale agreements
negotiated under the SAA can include minimum fees for the use of
existing works, it is necessary to address the interpretation of the SAA
and whether it conflicts with the Copyright Act .
(1) “Provision of Artists’ Services” Includes the Use of Existing Works
[15]
The first question to consider is whether it was
reasonable for the Tribunal to conclude that the “provision of artists’
services” referred to in the definition of “scale agreement” in the SAA
includes the provision of existing artistic works.
[16]
I agree with Pelletier J.A. that there is no
reason to overturn the Tribunal’s conclusion on this issue. The Tribunal’s
interpretation of “provision of artists’ services” is not contrary to its plain
meaning. Indeed, the analogy presented by Pelletier J.A. of the service
provided by hotels and car rental agencies for the use of their property is
persuasive. Furthermore, nothing in the SAA supports treating
commissioned works differently from existing works.
[17]
The definition of the artists who are bound by
the SAA has three broad categories, the first of which includes “authors
of artistic . . . works within the meaning of the Copyright Act ”
(SAA, s. 6(2) (b)(i)). In order to be an author of an artistic
work within the meaning of the Copyright Act , an artist must have
already produced the artistic work of which he or she is the author. If the SAA
was not intended to apply to the provision of existing artistic works, this
branch of the definition would be meaningless. It would not make sense for the SAA
to apply to artists on the basis of their creation of such works, yet not permit
scale agreements negotiated under the SAA to apply to those same works.
Although not conclusive, the reference in s. 6(2) (b)(i) to authors of
works within the meaning of the Copyright Act provides a strong
indication that scale agreements were intended to apply to existing artistic
works.
[18]
To conclude that the provision of existing works
is excluded from scale agreements authorized by the SAA would result in
that Act having a limited impact, at least with respect to visual artists, on
the achievement of Parliament’s express recognition that artists should “be
compensated for the use of their works, including the public lending of them” (SAA,
s. 2 (e)). Fees for the use of existing works are the central
issue for visual artists seeking compensation for their work, not an ancillary
matter. The NGC acknowledged that it rarely commissions works, doing so
“perhaps once every five years”. Installation, lectures, and tours are
ancillary services that are not only unlikely to provide a source of income
sufficient to properly compensate artists for their work, but are services that
can all be provided by persons other than the creator of the artistic work.
Indeed, while they may qualify as “related matters” under the definition of
“scale agreement” in s. 5 , they may not often qualify as “artistic
production[s]” in the sense of s. 6(2) (a) of the SAA , and would
then not constitute a primary artistic service that can be included in scale
agreements in their own right.
[19]
For these reasons, the Tribunal’s conclusion that
“provision of artists’ services” includes assigning or licensing a copyright
was reasonable. As a result, minimum fees for the provision of artists’
copyrights for existing works are eligible for inclusion in scale agreements
negotiated pursuant to the SAA .
(2) The SAA and the Copyright Act Do Not Conflict
[20]
The second question to be addressed is whether
the above conclusion — that “provision of artists’ services” includes the
provision of copyrights for existing works — results in a conflict with the Copyright
Act .
[21]
In drafting the SAA , Parliament is
presumed to have knowledge of the Copyright Act and to have intended
that the two statutes not conflict (R. Sullivan, Sullivan on the Construction
of Statutes (5th ed. 2008), at pp. 205 and 325). The SAA’s explicit
reference to the Copyright Act in s. 6(2) (b)(i) supports that
presumption. In the absence of evidence of conflict or that one of these laws
is intended to provide an exhaustive declaration of the applicable law, the two
statutes must be read together in a manner that allows them to work in a
complementary fashion.
[22]
The collective bargaining conducted by artists’
associations such as CARFAC/RAAV under the SAA in respect of scale
agreements covering existing artistic works does not contradict any provision
of the Copyright Act . Artists’ associations are simply bargaining
agents. They have not taken or granted, and do not purport to have taken or
granted, any assignment or exclusive licence, or any property interest, in any
artist’s copyright (see Euro-Excellence Inc. v. Kraft Canada Inc., 2007
SCC 37, [2007] 3 S.C.R. 20, at paras. 26-28). For this reason, s. 13(4) of the Copyright
Act , which requires assignments and grants of exclusive licences of
copyrights to be in writing, is not applicable.
[23]
An artists’ association’s function is to bargain
with producers for the fixing of what is analogous to a minimum wage for any
artist who may agree to provide his or her artistic work to the producer.
Establishing a minimum fee for the use of existing works does not affect any of
the rights conferred on copyright holders under s. 3 of the Copyright Act .
Minimum fees may, in some circumstances, affect whether and under what
conditions artists will provide a producer with the right to use their artistic
works, namely preventing an artist from doing so if no producer is willing to
offer him or her the minimum amount under the applicable scale agreement.
Ultimately, however, the decision of whether or not to provide the right to use
an artistic work remains with the copyright holder.
[24]
The above interpretation causes no conflict with
the Copyright Act ’s provisions regarding collective societies. As
counsel for CARFAC/RAAV acknowledged at the oral hearing, minimum fees for
existing works do not apply to or bind collective societies such as SODRAC.
Collective societies have the power to determine tariffs for the works in which
they hold the copyright, subject to the approval of the Copyright Board.
However, the SAA and the Tribunal precedent are clear, and none of the
parties to this appeal disagree: scale agreements do not bind collective
societies. The SAA only governs the professional relations between
federal governmental producers, as defined by that Act, and artists insofar as
they choose to retain their copyrights.
[25]
Artists therefore have two options when dealing
with federal governmental producers for the use of their existing works. One
option is to assign or license their copyright to a collective society or
appoint that society as their authorized agent. In that case, tariffs set under
the Copyright Act , and not the SAA and any scale agreements for
their sector, will apply to the works. The other option is to deal directly
with the producer, in which case they will be bound by any applicable SAA
scale agreements. Within this option, artists may either accept the minimum
fees, terms and conditions set out in the scale agreements and model contracts,
or they can attempt to negotiate higher fees or more favourable terms.
C. Duty to Bargain in Good Faith
[26]
Counsel for the NGC confirmed at oral hearing
that if the Court concluded that minimum fees for the use of existing works may
be included in scale agreements, the NGC would be willing to negotiate such
fees. As this is, in essence, the outcome sought by CARFAC/RAAV, the issue of
whether the NGC failed to bargain in good faith need not be examined in depth.
[27]
The Tribunal focused on “the manner in
which the negotiations were conducted”, though it also considered the content
of the negotiations (para. 121 (emphasis added)). The Tribunal’s reasons set
out in detail the facts supporting its conclusion that the NGC did not bargain
in good faith (paras. 122-52). In brief, the Tribunal found that, despite
raising some initial concerns in June 2003, the NGC did not seek to exclude
minimum fees for existing artistic works from the draft scale agreement on the
basis of its interpretation of the Copyright Act until October 2007.
[28]
In light of this history, the Tribunal noted
that the NGC did not follow the parties’ established practice of exchanging draft
scale agreements prior to their meetings when it presented its revised draft
scale agreement immediately after the legal opinion it had obtained was first
discussed (paras. 123, 136, 138-39 and 147). It concluded that “putting forward
such a proposal [that excluded minimum fees for the use of existing artistic
works from the scale agreement] and taking a rigid stance which it should be
known the other party could never accept must necessarily constitute a breach
of the duty to bargain in good faith” (para. 151).
[29]
It appears from the reasons that the Tribunal
extensively canvassed the facts and the law regarding good faith bargaining. In
proceedings before this Court, the NGC raised certain facts to support its
argument that it had not failed to meet its duty to bargain in good faith. The
Tribunal’s reasons demonstrate that it was aware of those facts, namely that
the NGC had expressed reservations about including minimum fees for the use of
existing works in a negotiated scale agreement, that the NGC relied upon a
legal opinion to refuse to include such minimum fees in the scale agreement,
and that the NGC expressed a willingness to negotiate alternative solutions and
remaining issues after presenting the revised draft scale agreement (paras. 124
and 140-42). The Tribunal nonetheless concluded that the NGC had failed to
bargain in good faith.
[30]
On a reasonableness review, it is not for courts
to reweigh the evidence considered by the tribunal (Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 64, per
Binnie J.). In view of the findings of fact of the Tribunal, it cannot be said
that its decision is unreasonable.
III. Conclusion
[31]
The appeal is allowed and the Tribunal’s order
is reinstated. Costs are awarded to the appellants CARFAC and RAAV on the
appeals before this Court and the Federal Court of Appeal.
Appeal allowed with costs.
Solicitors
for the appellants: Raven, Cameron, Ballantyne & Yazbeck,
Ottawa.
Solicitors
for the respondent: Lapointe Rosenstein Marchand Melançon, Montréal;
Gowlings, Ottawa.
Solicitors
for the interveners the Writers Guild of Canada and the Canadian Screenwriters
Collection Society: Ursel Phillips Fellows Hopkinson, Toronto.
Solicitors
for the interveners Société du droit de reproduction des auteurs, compositeurs
et éditeurs du Canada and SODRAC 2003 Inc.: Matteau Poirier avocats
inc., Montréal.