Date: 20060314
Docket: A-366-05
Citation: 2006 FCA 108
CORAM: DÉCARY J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
THE CANADIAN COPYRIGHT LICENSING AGENCY
operating as ACCESS COPYRIGHT
Applicant
and
The Provinceof Alberta as represented by the Minister of Education;
The Province of British Columbiaas represented by the Minister of Education;
The Provinceof Manitoba as represented by the Minister of Education,
Citizenship and Youth;
The Province of New Brunswickas represented by the Minister of Education;
The Provinceof Newfoundland as represented by the Minister of Education;
The Northwest Territoriesas represented by the Minister of Education, Culture
and Employment;
The Province of Nova Scotiaas represented by the Minister of Education;
The Territoryof Nunavut as represented by the Minister of Education;
The Province of Ontarioas represented by the Minister of Education;
The Provinceof Prince Edward Island as represented by the Minister of
Education;
The Province of Saskatchewanas represented by the Minister of Learning;
The Yukon Territoryas represented by the Minister of Education;
The Airy and Sabine District School Area Board;
The AlgomaDistrict SchoolBoard;
The Algonquin and LakeshoreCatholic DistrictSchool Board;
The Asquith-Garvey DistrictSchoolArea Board;
The Atikokan RomanCatholic SeparateSchoolBoard;
The Avon MaitlandDistrict SchoolBoard;
The BloorviewMacMillan SchoolAuthority;
The BluewaterDistrict SchoolBoard;
The BrantHaldimand NorfolkCatholic DistrictSchool Board;
The Bruce-Grey CatholicDistrict SchoolBoard;
The CampbellChildren's School Authority;
The CaramatDistrict SchoolArea Board;
The Catholic DistrictSchool Board of Eastern Ontario;
The CollinsDistrict SchoolArea Board;
The Connell and PonsfordDistrict SchoolArea Board;
The Conseil des écoles catholiques du Centre-Est de l'Ontario;
The Conseil des écoles publiques de l'Est de l'Ontario;
The Conseil des écoles séparées catholiques de Dubreuilville;
The Conseil des écoles séparées catholiques de Foleyet;
The Conseil scolaire de district catholique Centre-Sud;
The Conseil scolaire de district catholique de l'Est ontarien;
The Conseil scolaire de district catholique des Aurores boréales;
The Conseil scolaire de district catholique des Grandes Rivires;
The Conseil scolaire de district catholique du Nouvel-Ontario;
The Conseil scolaire de district catholique Franco-Nord;
The Conseil scolaire de district des écoles catholiques de Sud-Ouest;
The Conseil scolaire de district du Centre Sud-Ouest;
The Conseil scolaire de district du Grand Nord de l'Ontario;
The Conseil scolaire de district du Nord-Est de l'Ontario;
The District School Board of Niagara;
The District School Board OntarioNorth East;
The Dufferin-Peel CatholicDistrict SchoolBoard;
The DurhamCatholic DistrictSchool Board;
The Durham DistrictSchoolBoard;
The English Language # 38 Catholic DistrictSchoolBoard;
The EssexCounty Children's Rehabilitation CentreSchoolAuthority;
The Foleyet DistrictSchoolArea Board;
The Gogama DistrictSchoolArea Board;
The Gogama RomanCatholic SeparateSchoolBoard;
The Grand ErieDistrict SchoolBoard;
The Greater EssexCounty DistrictSchool Board;
The Halton CatholicDistrict SchoolBoard;
The HaltonDistrict SchoolBoard;
The Hamilton-WentworthCatholic DistrictSchool Board;
The Hamilton-Wentworth DistrictSchoolBoard;
The Hastings & Prince EdwardDistrict SchoolBoard;
The HornepayneRoman CatholicSeparate SchoolBoard;
The HuronPerth CatholicDistrict SchoolBoard;
The Huron-SuperiorCatholic DistrictSchool Board;
The Ignace RomanCatholic SeparateSchoolBoard;
The James Bay LowlandsSecondary SchoolBoard;
The Kawartha PineRidge DistrictSchoolBoard;
The Keewatin-Patricia DistrictSchoolBoard;
The Kenora CatholicDistrict SchoolBoard;
The LakeheadDistrict SchoolBoard;
The LambtonKent DistrictSchool Board;
The Limestone DistrictSchoolBoard;
The Mine CentreDistrict SchoolArea Board;
The MissarendaDistrict SchoolArea Board;
The MooseFactory IslandDistrict SchoolArea Board;
The MoosoneeDistrict SchoolArea Board;
The MoosoneeRoman CatholicSeparate SchoolBoard;
The Murchison and LyellDistrict SchoolArea Board;
The NakinaDistrict SchoolArea Board;
The Near NorthDistrict SchoolBoard;
The NiagaraCatholic DistrictSchool Board;
The NiagaraPeninsula Children's Centre SchoolAuthority;
The Nipissing-ParrySound CatholicDistrict SchoolBoard;
The Northeastern CatholicDistrict SchoolBoard;
The Northern DistrictSchool Area Board;
The Northwest CatholicDistrict SchoolBoard;
The Ottawa Children's Treatment CentreSchoolAuthority;
The Ottawa-Carleton CatholicDistrict SchoolBoard;
The Ottawa-CarletonDistrict SchoolBoard;
The ParrySound RomanCatholic SeparateSchool Board;
The Peel DistrictSchoolBoard;
The Peterborough VictoriaNorthumberland and Clarington Catholic District
School Board;
The RainbowDistrict SchoolBoard;
The Rainy RiverDistrict SchoolBoard;
The Red Lake AreaCombined RomanCatholic SeparateSchool Board;
The Renfrew CountyCatholic DistrictSchoolBoard;
The Renfrew CountyDistrict SchoolBoard;
The SimcoeCounty DistrictSchool Board;
The Simcoe MuskokaCatholic DistrictSchoolBoard;
The St Clair CatholicDistrict SchoolBoard;
The SudburyCatholic DistrictSchool Board;
The Summer BeaverDistrict SchoolArea Board;
The SuperiorNorth CatholicDistrict SchoolBoard;
The Superior-GreenstoneDistrict SchoolBoard;
The ThamesValley DistrictSchool Board;
The KidsAbility SchoolAuthority;
The Thunder BayCatholic DistrictSchool Board;
The Toronto CatholicDistrict SchoolBoard;
The TorontoDistrict SchoolBoard;
The TrilliumLakelands DistrictSchool Board;
The Upper Canada DistrictSchoolBoard;
The Upper GrandDistrict SchoolBoard;
The UpsalaDistrict SchoolArea Board;
The WaterlooCatholic DistrictSchool Board;
The Waterloo RegionDistrict SchoolBoard;
The WellingtonCatholic DistrictSchool Board;
The Windsor-Essex CatholicDistrict SchoolBoard;
The YorkCatholic DistrictSchool Board;
and
The York RegionDistrict SchoolBoard
Respondents
Heard at Ottawa, Ontario, on March 14, 2006.
Judgment delivered from the Bench at Ottawa, Ontario, on March 14, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20060314
Docket: A-366-05
Citation: 2006 FCA 108
CORAM: DÉCARY J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
THE CANADIAN COPYRIGHT LICENSING AGENCY
operating as ACCESS COPYRIGHT
Applicant
and
The Province of Albertaas represented by the Minister of Education;
The Provinceof British Columbiaas represented by the Minister of Education;
The Province of Manitobaas represented by the Minister of Education,
Citizenship and Youth;
The Provinceof New Brunswickas represented by the Minister of Education;
The Province of Newfoundlandas represented by the Minister of Education;
The Northwest Territoriesas represented by the Minister of Education, Culture
and Employment;
The Provinceof Nova Scotiaas represented by the Minister of Education;
The Territory of Nunavutas represented by the Minister of Education;
The Provinceof Ontarioas represented by the Minister of Education;
The Province of Prince Edward Islandas represented by the Minister of
Education;
The Provinceof Saskatchewanas represented by the Minister of Learning;
The Yukon Territoryas represented by the Minister of Education;
The Airy and Sabine District School Area Board;
The Algoma District SchoolBoard;
The Algonquin and Lakeshore Catholic DistrictSchoolBoard;
The Asquith-GarveyDistrictSchool Area Board;
The AtikokanRomanCatholic SeparateSchool Board;
The AvonMaitlandDistrict SchoolBoard;
The Bloorview MacMillan SchoolAuthority;
The Bluewater District SchoolBoard;
The Brant Haldimand NorfolkCatholic DistrictSchoolBoard;
The Bruce-GreyCatholicDistrict SchoolBoard;
The CampbellChildren's School Authority;
The Caramat District SchoolArea Board;
The Catholic DistrictSchool Board of Eastern Ontario;
The Collins District SchoolArea Board;
The Connell and Ponsford District SchoolArea Board;
The Conseil des écoles catholiques du Centre-Est de l'Ontario;
The Conseil des écoles publiques de l'Est de l'Ontario;
The Conseil des écoles séparées catholiques de Dubreuilville;
The Conseil des écoles séparées catholiques de Foleyet;
The Conseil scolaire de district catholique Centre-Sud;
The Conseil scolaire de district catholique de l'Est ontarien;
The Conseil scolaire de district catholique des Aurores boréales;
The Conseil scolaire de district catholique des Grandes Rivires;
The Conseil scolaire de district catholique du Nouvel-Ontario;
The Conseil scolaire de district catholique Franco-Nord;
The Conseil scolaire de district des écoles catholiques de Sud-Ouest;
The Conseil scolaire de district du Centre Sud-Ouest;
The Conseil scolaire de district du Grand Nord de l'Ontario;
The Conseil scolaire de district du Nord-Est de l'Ontario;
The District School Board of Niagara;
The District School Board OntarioNorth East;
The Dufferin-PeelCatholicDistrict SchoolBoard;
The Durham Catholic DistrictSchoolBoard;
The DurhamDistrictSchool Board;
The English Language # 38 CatholicDistrictSchool Board;
The EssexCounty Children's RehabilitationCentreSchool Authority;
The FoleyetDistrictSchool Area Board;
The GogamaDistrictSchool Area Board;
The GogamaRomanCatholic SeparateSchool Board;
The GrandErieDistrict SchoolBoard;
The Greater Essex County DistrictSchoolBoard;
The HaltonCatholicDistrict SchoolBoard;
The Halton District SchoolBoard;
The Hamilton-Wentworth Catholic DistrictSchoolBoard;
The Hamilton-WentworthDistrictSchool Board;
The Hastings & PrinceEdwardDistrict SchoolBoard;
The Hornepayne Roman CatholicSeparate SchoolBoard;
The Huron Perth CatholicDistrict SchoolBoard;
The Huron-Superior Catholic DistrictSchoolBoard;
The IgnaceRomanCatholic SeparateSchool Board;
The James BayLowlandsSecondary School Board;
The KawarthaPineRidge DistrictSchool Board;
The Keewatin-PatriciaDistrictSchool Board;
The KenoraCatholicDistrict SchoolBoard;
The Lakehead District SchoolBoard;
The Lambton Kent DistrictSchoolBoard;
The LimestoneDistrictSchool Board;
The MineCentreDistrict SchoolArea Board;
The Missarenda District SchoolArea Board;
The Moose Factory IslandDistrict SchoolArea Board;
The Moosonee District SchoolArea Board;
The Moosonee Roman CatholicSeparate SchoolBoard;
The Murchison and Lyell District SchoolArea Board;
The Nakina District SchoolArea Board;
The Near North District SchoolBoard;
The Niagara Catholic DistrictSchoolBoard;
The NiagaraPeninsula Children's CentreSchoolAuthority;
The Nipissing-Parry Sound CatholicDistrict SchoolBoard;
The Northeastern Catholic District SchoolBoard;
The Northern District SchoolArea Board;
The NorthwestCatholicDistrict SchoolBoard;
The Ottawa Children's TreatmentCentreSchool Authority;
The Ottawa-CarletonCatholicDistrict SchoolBoard;
The Ottawa-Carleton District SchoolBoard;
The Parry Sound RomanCatholic SeparateSchoolBoard;
The PeelDistrictSchool Board;
The PeterboroughVictoriaNorthumberland and Clarington Catholic District
School Board;
The Rainbow District SchoolBoard;
The Rainy River District SchoolBoard;
The Red Lake AreaCombined Roman Catholic SeparateSchoolBoard;
The RenfrewCountyCatholic DistrictSchool Board;
The RenfrewCountyDistrict SchoolBoard;
The Simcoe County DistrictSchoolBoard;
The SimcoeMuskokaCatholic DistrictSchool Board;
The St ClairCatholicDistrict SchoolBoard;
The Sudbury Catholic DistrictSchoolBoard;
The SummerBeaverDistrict SchoolArea Board;
The Superior North CatholicDistrict SchoolBoard;
The Superior-Greenstone District SchoolBoard;
The Thames Valley DistrictSchoolBoard;
The KidsAbilitySchoolAuthority;
The Thunder Bay Catholic DistrictSchoolBoard;
The TorontoCatholicDistrict SchoolBoard;
The Toronto District SchoolBoard;
The Trillium Lakelands DistrictSchoolBoard;
The Upper CanadaDistrictSchool Board;
The UpperGrandDistrict SchoolBoard;
The Upsala District SchoolArea Board;
The Waterloo Catholic DistrictSchoolBoard;
The WaterlooRegionDistrict SchoolBoard;
The Wellington Catholic DistrictSchoolBoard;
The Windsor-EssexCatholicDistrict SchoolBoard;
The York Catholic DistrictSchoolBoard;
and
The YorkRegionDistrict SchoolBoard
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on March 14, 2006)
SEXTON J.A.
[1] The applicant applies for judicial review of the decision of the Copyright Board (Board) in which it ruled that the respondents did not have to produce all examinations set by the respondents for the purpose of discovering what copyrighted works of the applicant might have been reproduced in the examinations set by the respondents. There are more than 100 respondents and the amount of material involved would presumably be very great. The Board refused to order production saying:
Some of the information can serve no purpose, given s. 29.4(2) of the Copyright Act. Information should be supplied only with respect to examinations copied outside the establishment.
[2] In ruling on the issue of what material must be produced by the respondents, the Board adverted to subsection 29.4(2), as a reason why material copied on the premises of the respondents was not relevant in the tariff proceeding. No arguments on subsection 29.4(2) were made by the parties, before the Board, and its reasons are perhaps, for that reason, very brief.
[3] In our view, the arguments as to whether the exception in subsection 29.4(2) applies so as to deprive the applicant of the right to have a tariff set for the copying of material on the premises of the respondents should be heard by the Board in its main hearing. This is an important issue in the setting of the tariff and the Board no doubt will consider such arguments with an open mind especially because, to date, it has not had the benefit of such arguments. We do not accept that this issue can have been finally determined on the interlocutory motion relating to what documents the respondents were obliged to produce.
[4] This interlocutory ruling, in any event, would be subject to consideration by this Court by way of judicial review after the Board has issued its final decision on the tariff issue.
[5] In our view, this appeal does not raise the "special circumstances" as outlined in Szczecka v. Canada, (1994) 116 D.L.R. (4th) 333 (F.C.A.) at 335 and Zundel v. Canada(Human Rights Commission), [2000] 4 F.C. 255 (F.C.A.) at 261.
[6] The application for judicial review will be dismissed with costs.
"J. Edgar Sexton"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-366-05
STYLE OF CAUSE: THE CANADIAN COPYRIGHT LICENSING
AGENCY operating as ACCESS COPYRIGHT v.
The Province of Alberta as represented by the
Minister of Education; and others
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 14, 2006
REASONS FOR JUDGMENT
OF THE COURT: (Décary, Sexton, Malone JJ.A.)
RENDERED FROM THE BENCH BY: Sexton, J.A.
APPEARANCES:
Mr. David R. Collier For the Applicant
Mr. Louis Gratton
Mr. J. Aidan O'Neil For the Respondents
Ms. Wanda M. Noel
SOLICITORS OF RECORD:
Ogilvy Renault LLP For the Applicant
Montréal, Québec
Johnston & Buchan LLP For the Respondents
Ottawa, Ontario
Wanda M. Noel For the Respondents
Ottawa, Ontario
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