Date: 20120123
Docket: A-395-11
Citation: 2012 FCA 22
Present: STRATAS
J.A.
BETWEEN:
ASSOCIATION OF UNIVERSITIES AND COLLEGES
OF CANADA
and THE UNIVERSITY OF MANITOBA
Applicants
and
THE CANADIAN COPYRIGHT LICENSING AGENCY
operating as “ACCESS COPYRIGHT”
Respondent
REASONS FOR ORDER
STRATAS J.A.
[1]
The
applicants have filed the affidavit of Gregory L. Juliano in support of their
application for judicial review of a decision of the Copyright Board. The
respondent, Access Copyright, moves to strike it out.
A. The
nature of the proceedings before the Copyright Board
[2]
The
Copyright Board has been conducting proceedings into a proposed tariff sought
by Access Copyright for the reproduction of published works by post-secondary
institutions located outside Quebec.
[3]
In
the course of its proceedings, the Copyright Board issued an interim tariff.
This interim tariff is to remain in place until the Copyright Board decides
upon Access Copyright’s proposed tariff.
[4]
The
Association of Universities and Colleges of Canada was unhappy with the interim
tariff. It requested the Copyright Board to amend it by forcing Access
Copyright to grant transactional licences to the Association’s members. This
would permit them to copy published works in Access Copyright’s repertoire. On
September 23, 2011, the Copyright Board denied the Association’s request.
B. The
applicants’ judicial review
[5]
The
applicants have brought an application for judicial review of the Copyright
Board’s decision to deny the Association’s request. Broadly speaking, the
applicants allege that the Copyright Board acted in a manner contrary to or
inconsistent with the Copyright Act, R.S.C. 1985, c. C-42, the proper
principles for awarding interim relief, and its earlier decisions. They do not
allege bias, a denial of natural justice, or lack of procedural fairness.
[6]
In
support of their application, the applicants filed two affidavits. The first
affidavit provides the complete record before the Copyright Board when it made
its decision. It is the second affidavit, that of Gregory L. Juliano, that is
under attack.
C. The affidavit
under attack
[7]
Broadly
speaking, the body of the Juliano affidavit asserts that transactional licences
are needed from Access Copyright and that the absence of transactional licences
causes adverse effects on the University of Manitoba. It offers
evidence in support of these propositions.
[8]
The
need for transactional licences from Access Copyright was the very issue raised
by the Association and rejected by the Copyright Board. The evidence in the
Juliano affidavit could have been provided in the hearing before the Board on
this issue.
[9]
The
Juliano affidavit appends ten exhibits. With a small exception, none of these
exhibits were provided to the Copyright Board. The small exception concerns
certain emails that were before the Board. The other affidavit filed by the
applicants includes these emails and will be before this Court.
D. Analysis
(1) Should
the admissibility of the affidavit be determined now?
[10]
At
the outset, the applicants suggest that the issue of the admissibility of the
Juliano affidavit should be determined by the panel hearing the application,
not by way of advance ruling.
[11]
Whether
the Court should provide an advance ruling is a matter of discretion. This
discretion is constrained by the instruction in subsection 18.4(1) of the Federal
Courts Act, R.S.C. 1985, c. F-7, that applications for judicial review be
“heard and determined without delay and in a summary way.” As a result, the
Court will only exercise its discretion to provide an advance admissibility ruling
where it is clearly warranted. Those embarking upon an interlocutory foray to
this Court to seek such a ruling will not often find a welcome mat when they
arrive.
[12]
Consistent
with the instruction in subsection 18.4(1), one matter to consider is whether
an advance ruling would allow the hearing to proceed in a timelier and more orderly
fashion: McConnell v. Canada (Canadian Human Rights Commission), 2004 FC
817, aff’d 2005 FCA 389. Another consideration is whether the issue of
admissibility turns on discretionary matters over which reasonable minds may
differ, rather than a clear question of law. Finally, and related to that, the
Court is more likely to make an advance ruling where the issue is relatively clear
cut or obvious: Canadian Tire Corp. Ltd. v. P.S. Partsource Inc., 2001
FCA 8.
[13]
As
shall be seen, the issue of admissibility in this case is mainly one of law and
is not discretionary. It is relatively clear cut. An advance ruling on
admissibility would allow the hearing to proceed in a timelier and more orderly
fashion. The admissibility of the Juliano affidavit should be determined now.
(2) The merits of
the motion to strike the affidavit
(a) Applicable
principles
[14]
Judicial
review courts are often confronted with procedural questions such as the one
posed in this case. The answers to these questions often rest in an
appreciation of the different roles played by judicial review courts and the
administrative decision-makers they review.
[15]
A
good example can be seen in the Supreme Court’s recent consideration of whether
a judicial review court can entertain new arguments on the merits (i.e.,
arguments that were not made to the administrative decision-maker): Alberta (Information and
Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61. In that case, the Supreme
Court adopted a restrictive approach to new arguments because of the differing roles
played by the judicial review court and the administrative decision-maker under
review. It noted that the former was limited to its judicial review powers
while the latter was the forum for arguments on the merits, including the fact-finding
necessary for those arguments (paragraphs 23-28). In the case before it, the Supreme
Court held that an exception applied, finding that “the rationales for the general rule have
limited application [in this case]” (at paragraph 28).
[16]
In
my view, the Supreme Court’s approach in Alberta Teachers’ Association is
a useful analytical tool for deciding a number of procedural issues in judicial
review courts, such as the one before this Court in this case: whether the
Juliano affidavit should be admitted. As we shall see, the Supreme Court’s approach
is really nothing new in this Court: it is embodied in this Court’s existing
case law on the admissibility of affidavits. This Court’s case law shows that
concerns about the differing roles played by judicial review courts and
administrative decision-makers have shaped the law in this area.
[17]
In
determining the admissibility of the Juliano affidavit, the differing roles
played by this Court and the Copyright Board must be kept front of mind. Parliament
gave the Copyright Board – not this Court – the jurisdiction to determine
certain matters on the merits, such as whether to make an interim tariff, what
its content should be, and any permissible terms associated with it. As part of
that task, it is for the Board – not this Court – to make findings of fact,
ascertain the applicable law, consider whether there are any issues of policy
that should be brought to bear on the matter, apply the law and policy to the
facts it has found, make conclusions and, where relevant, consider the issue of
remedy. In this case, the Copyright Board has already discharged its role,
deciding on the merits to make an interim tariff and to refuse to amend it.
[18]
Now
before the Court is an application for judicial review from this decision on
the merits. In such proceedings, this Court has only limited powers under the Federal
Courts Act to review the Copyright Board’s decision. This Court can only review
the overall legality of what the Board has done, not delve into or re-decide the
merits of what the Board has done.
[19]
Because
of this demarcation of roles between this Court and the Copyright Board, this Court
cannot allow itself to become a forum for fact-finding on the merits of the
matter. Accordingly, as a general rule, the evidentiary record before this
Court on judicial review is restricted to the evidentiary record that was
before the Board. In other words, evidence that was not before the Board and
that goes to the merits of the matter before the Board is not admissible in an
application for judicial review in this Court. As was said by this Court in Gitxsan
Treaty Society v. Hospital Employees’ Union, [2000] 1 F.C. 135 at pages
144-45 (C.A.), “[t]he
essential purpose of judicial review is the review of decisions, not the
determination, by trial de novo, of questions that were not adequately
canvassed in evidence at the tribunal or trial court.” See also Kallies v.
Canada, 2001 FCA 376 at paragraph 3; Bekker v. Canada, 2004 FCA 186
at paragraph 11.
[20]
There
are a few recognized exceptions to the general rule against this Court
receiving evidence in an application for judicial review, and the list of exceptions
may not be closed. These exceptions exist only in situations where the receipt
of evidence by this Court is not inconsistent with the differing roles of the
judicial review court and the administrative decision-maker (described in
paragraphs 17-18, above). In fact, many of these exceptions tend to facilitate
or advance the role of the judicial review court without offending the role of
the administrative decision-maker. Three such exceptions are as follows:
(a) Sometimes
this Court will receive an affidavit that provides general background in
circumstances where that information might assist it in understanding the
issues relevant to the judicial review: see, e.g., Estate of Corinne
Kelley v. Canada, 2011 FC 1335 at paragraphs 26-27; Armstrong v. Canada
(Attorney General), 2005 FC 1013 at paragraphs 39-40; Chopra v. Canada
(Treasury Board) (1999), 168 F.T.R. 273 at paragraph 9. Care must be taken
to ensure that the affidavit does not go further and provide evidence relevant
to the merits of the matter decided by the administrative decision-maker,
invading the role of the latter as fact-finder and merits-decider. In this
case, the applicants invoke this exception for much of the Juliano affidavit.
(b) Sometimes
affidavits are necessary to bring to the attention of the judicial review court
procedural defects that cannot be found in the evidentiary record of the
administrative decision-maker, so that the judicial review court can fulfil its
role of reviewing for procedural unfairness: e.g, Keeprite Workers’
Independent Union v. Keeprite Products Ltd. (1980) 29 O.R. (2d) 513 (C.A.). For
example, if it were discovered that one of the parties was bribing an
administrative decision-maker, evidence of the bribe could be placed before
this Court in support of a bias argument.
(c) Sometimes
an affidavit is received on judicial review in order to highlight the complete
absence of evidence before the administrative decision-maker when it made a
particular finding: Keeprite, supra.
(b) Applying these
principles
[21]
In
defending Access Copyright’s motion to strike the Juliano affidavit, the
applicants submit that the affidavit is necessary to support the standing of
the University of Manitoba as an
applicant in the application for judicial review and to provide necessary
context and background for the issues before the Court. They add that the
information supplied in the Juliano affidavit is consistent with information
already before the Copyright Board and does not prejudice Access Copyright.
[22]
I
reject these submissions.
[23]
For
the most part, as I have explained in paragraphs 7 to 9, above, the Juliano
affidavit offers evidence that was not before the Copyright Board and that goes
to the merits of the matter before the Board. It does not raise matters that
fall into any of the exceptions identified above. It would offend the demarcation
of roles between this Court as a judicial review court, and the Board as a
fact-finder and merits-decider.
[24]
In
the record before me, no objections have ever been made to the standing of the University of Manitoba.
Indeed, University of Manitoba is one of
the moving parties on this motion and Access Copyright does not object.
[25]
Assuming
without deciding that Access Copyright can launch an objection at a later time
to the University’s standing, the University of Manitoba may then seek
leave to file an affidavit showing that it is sufficiently affected by the
Copyright Board’s decision to have standing. However, such an affidavit will
not be necessary if the proper record placed before this Court is sufficient to
deal with the issue.
[26]
Finally,
in my view, the Juliano affidavit does not supply necessary context and
background that would be useful for this Court when it reviews the Copyright
Board’s decision. Much of the Juliano affidavit that is said to be “context and
background” is really evidence that goes to the merits of the matter before the
Board. The parties’ memoranda of fact and law can supply much context and
background by relying upon the Board’s decision, the applicable legal framework,
and the complete record that was before the Board.
E. Disposition
of the motion
[27]
Therefore,
Access Copyright’s motion shall be granted. The Juliano affidavit shall be
struck. That affidavit and any transcript of cross-examinations conducted thereon
shall not appear in the records filed before this Court. Access Copyright shall
have its costs of the motion.
"David Stratas"
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