Date:
20051014
Docket:
A-380-05
Citation:
2005 FCA 330
Present: PELLETIER J.A.
BETWEEN:
GROUPE
ARCHAMBAULT INC.
Applicant
and
CMRRA/SODRAC
INC.
and
BELL
CANADA, CANADIAN ASSOCIATION OF
BROADCASTERS,
CANADIAN CABLE
TELECOMMUNICATIONS
ASSOCIATION,
CANADIAN
RECORDING INDUSTRY ASSOCIATION,
MOONTAXI
MEDIA INC., NAPSTER LLC, MUSICNET
INC.,
APPLE CANADA INC., REALNETWORKS INC.,
YAHOO
! INC., SIRIUS CANADA INC., ROGERS
WIRELESS
INC., ASSOCIATION QUEBECOISE DE
L’INDUSTRIE
DU DISQUE, DU SPECTACLE ET DE
LA
VIDÉO (ADISQ) INC.
Respondents
Hearing held at Montréal, Quebec, on
October 7, 2005.
Order
made at Ottawa, Ontario, on October 14, 2005.
REASONS FOR ORDER BY: PELLETIER
J.A.
Date:
20051014
Docket:
A-380-05
Citation:
2005 FCA 330
Present: PELLETIER J.A.
BETWEEN:
GROUPE
ARCHAMBAULT INC.
Applicant
and
CMRRA/SODRAC
INC.
and
BELL
CANADA, CANADIAN ASSOCIATION OF
BROADCASTERS,
CANADIAN CABLE
TELECOMMUNICATIONS
ASSOCIATION,
CANADIAN
RECORDING INDUSTRY ASSOCIATION,
MOONTAXI
MEDIA INC., NAPSTER LLC, MUSICNET
INC.,
APPLE CANADA INC., REALNETWORKS INC.,
YAHOO
! INC., SIRIUS CANADA INC., ROGERS
WIRELESS
INC., ASSOCIATION QUEBECOISE DE
L’INDUSTRIE
DU DISQUE, DU SPECTACLE ET DE
LA
VIDÉO (ADISQ) INC.
Respondents
REASONS
FOR ORDER
PELLETIER J.
[1]
This is an application for a stay of proceedings before the Copyright
Board, concerning the applicant, in the event of a decision by this Court on
its application for judicial review of an interlocutory decision on the
disclosure of evidence.
[2]
The application for a stay of proceedings is based on the following
facts. The respondent CSI, a collective representing music composers,
submitted to the Copyright Board a statement of proposed royalties that would
require online music services to pay it royalties for the use of the work of
the composers that it represented. The applicant, which operates an online
music service, opposes the proposed royalties, as do a number of other similar
services. The Board’s rules of procedure allow each party to submit questions
to any other party. The responses are forwarded to the party that asked the questions
but are not circulated among the other parties or filed with the Board.
[3]
In this case, the applicant and the respondent exchanged questions.
Each objected to the questions asked by the other. While a compromise was
reached on some of the objections, others were submitted to the Board for a
decision. The respondent sought quite detailed information, relating to all
aspects of the applicant’s business, including technology, finances,
contractual relations, advertising and relationships within and among related
corporations. In the applicant’s view, the information sought was irrelevant
to the issue before the Board, and the respondent’s questions related to
information that would be extremely prejudicial to the applicant if disclosed.
[4]
The Board issued an order on June 9, 2005 overruling most of the
applicant’s objections. It stated that the objections based on confidentiality
of information were overruled, as confidentiality was not an adequate ground of
objection, since the Board could issue a confidentiality order at the request
of any party feeling that one was necessary.
[5]
An application for judicial review of the order and an application for a
stay of proceedings were filed by the applicant, who argued that the order overruling
its objections was tantamount to unreasonable seizure within the meaning of
section 8 of the Canadian Charter of Rights and Freedoms. The applicant
relied on case law to the effect that an order to produce documents by state
authorities constitutes seizure, even in a regulatory context: R. v.
McKinlay Transport Ltd., [1990] 1 S.C.R. 627. In the applicant’s view, the
irrelevance and confidentiality of the information sought, as well as the costs
that the applicant would have to bear in order to recover the information, make
the order in question unreasonable.
[6]
In Szczecka v. Canada (Minister of Employment and Immigration)
(F.C.A.) (1993), 116 D.L.R. (4th) 333, Létourneau J., writing for this
Court on the subject of judicial review of interlocutory injunctions, stated
the following:
[4] This is why unless there are
special circumstances there should not be any appeal or immediate judicial
review of an interlocutory judgment. Similarly, there will not be any basis
for judicial review, especially immediate review, when at the end of the
proceedings some other appropriate remedy exists. These rules have been
applied in several court decisions specifically in order to avoid breaking up
cases and the resulting delays and expenses which interfere with the sound
administration of justice and ultimately bring it into disrepute. In the case
of judicial review under s. 28 of the Federal Court Act, which is the
case now before the Court, the interpretation of that section by the Court is
even more strict.
[7]
If judicial review of an interlocutory judgement is rarely warranted,
the granting of a stay of proceedings pending the outcome of the review should
be even rarer. Before addressing the conditions for issuing an interlocutory
stay of proceedings, the Court must be satisfied that its intervention is
warranted under the circumstances. The applicant does not deny the existence
of case law to this effect but argues that the infringement of its
constitutional right to privacy justifies this Court’s intervention even at the
stage of an interlocutory order concerning disclosure of evidence. This line
of thought would have the effect of transforming simple questions of relevance
into constitutional issues.
[8]
There are no exceptional circumstances that would warrant this Court’s
intervention at this stage. The relevance of questions raised in an
examination or on examination for discovery is one of the most trite issues
raised in civil litigation. It is up to the decision maker who hears the proceedings
to resolve these issues. Quite likely, some will allow questions which turn
out to be irrelevant. However, this does not transform a procedural issue into
a constitutional one.
[9]
The nature of the decision maker, be it a court of law or an administrative
tribunal, does not alter the nature of the question. In either case, an order
concerning disclosure of evidence gives the parties the necessary documents so
that they may assert their viewpoint before the decision maker. Except insofar
as they serve to enlighten it in its decision-making, the decision maker in
truth has no interest in those documents. The instant case does not involve
forced disclosure in the context of a dispute between the state and the
individual who is the subject of the forced disclosure.
[10]
For these reasons, the motion for a stay of proceedings must be
dismissed even before we proceed to analyse the conditions that must be
satisfied in order to grant an interlocutory stay of proceedings, as set out in
R.J.R. - MacDonald Inc. v. Canada (Attorney General), [1994]
1 S.C.R. 311. This case involves no special circumstances that would
warrant delaying the proceedings before the Board.
[11]
Even if some special circumstances were discovered in the case and it
were necessary to then analyse the conditions under which a stay of proceedings
should be issued, the applicant could not succeed in its application because it
has not demonstrated irreparable harm. The applicant argued that, once
confidential documents are circulated, it is impossible to re-establish their
confidentiality if their disclosure is subsequently determined to be
unjustified, which constitutes irreparable harm. Some case law supports this
argument: Calgary Regional Health Authority v. United Western Communications
Ltd. (c.o.b. Alberta Report Magazine) (1999), 35 C.P.C. (4th) 324, at
paragraphs 19-20.
[12]
In the case at bar, this argument is academic, since the applicant did
not apply for a confidentiality order, as the Board invited it to do. The
applicant cannot assume that an order by the Board would not meet its
requirements. See on this point Canada (Attorney General) v. Canada
(Information Commissioner) 2001 FCA 26, [2001] F.C.J. No. 283 (F.C.A.), at
paragraph 12.
[13]
The applicant argues that the infringement of its constitutional right
to privacy represents irreparable harm and that any infringement of a right
conferred under the Charter constitutes in and of itself irreparable
harm. It bases this argument on the following passage from 143471 Canada
Inc. v. Quebec (Attorney General) (143471 Canada Inc.), [1994] 2
S.C.R. 339, at paragraph 82:
Small
as it may be, there is such a privacy interest. If it transpires that the
respondents are correct in their constitutional contention, then I would think
that the loss of that privacy interest would, in itself, constitute irreparable
harm.
[14]
This passage reappears in the reasons of Cory J., concurred in by
Sopinka and Iacobucci JJ. Lamer C.J. was in agreement with Cory J.’s
conclusion but questioned some of his propositions. La Forest J., along with
McLachlin and l’Heureux-Dubé JJ., dissented on this point. He wrote as follows:
[41]
. . . The respondents are objecting here to the examination by the tax
authorities of the contents of business documents the seizure of which was
previously authorized. The existence of irreparable harm cannot be inferred
simply because a breach of a right protected by the Charter is alleged or
because the main proceeding itself involves the infringement of an entrenched
right . . . . It seems wrong to conclude as a matter of principle that the
right to privacy must in all circumstances take priority over any other
interest, for example over giving effect to legislation adopted in the public
interest.
[15]
This Court expressed its view on the significance of the decision in 143471
Canada Inc. in Canada (Attorney General) v. Canada (Information
Commissioner) (2001), 268 N.R. 328:
[22]
The decision of the Supreme Court in 14371 Canada Inc. v. Québec [A.G.],
[1994] 2 S.C.R. 319 brought to our attention by the respondents rested on an
entirely different set of facts. It dealt with intrusive searches of
residential and business premises by the tax authorities under constitutionally
suspect statutory authority. The Court in its reasons noted on more than one
occasion that searches of private property are far more intrusive than a demand
for production of documents, thereby giving rise to a greater need for the
protection of the privacy interests of those concerned (see pages 380, 381 and
382). That is the context in which the majority concluded that irreparable harm
would result if the seized documents were reviewed by the tax authorities,
pending the determination of the constitutional validity of the seizures. It
is clear that a different conclusion would have been reached if the information
in issue had been obtained by less intrusive means.
[Emphasis
added.]
[16]
In my opinion, the mere allegation of an infringement of section 8 is
insufficient to establish irreparable harm. This Court’s interpretation of 143471
Canada Inc. in Canada (Attorney General) v. Canada (Information
Commissioner) appears to me to be consistent with the opinions of the
dissenting justices on the issue of irreparable harm. Thus, the applicant has
not proven irreparable harm.
[17]
This is even more clearly the case when we recall that the applicant’s
participation in the proceedings before the Board Member was entirely
voluntary. The applicant was not summoned to appear before the Board but did
so of its own accord and can withdraw in the same way. While it is, of course,
true that it has a viewpoint to put across, its participation is conditional on
disclosure of the information requested by CSI and deemed relevant by the
Board. Whether the financial information is relevant is an issue that will
still be relevant at the hearing before the Board and on judicial review of its
final decision, if occasion arises.
[18]
The Court accordingly finds that the motion for a stay of proceedings
must be dismissed with costs.
“J.D. Denis Pelletier”
J.A.
Certified true
translation
Michael Palles
FEDERAL
COURT OF CANADA
APPEAL
DIVISION
SOLICITORS
OF RECORD
DOCKET: A-380-05
STYLE OF CAUSE: GROUPE
ARCHAMBAULT INC.
and
CMRRA/SODRAC
INC.
and
BELL
CANADA, CANADIAN ASSOCIATION OF
BROADCASTERS,
CANADIAN CABLE
TELECOMMUNICATIONS
ASSOCIATION,
CANADIAN
RECORDING INDUSTRY ASSOCIATION,
MOONTAXI
MEDIA INC., NAPSTER LLC, MUSICNET
INC.,
APPLE CANADA INC., REALNETWORKS INC.,
YAHOO
! INC., SIRIUS CANADA INC., ROGERS
WIRELESS
INC., ASSOCIATION QUEBECOISE DE
L’INDUSTRIE
DU DISQUE, DU SPECTACLE ET DE
LA
VIDÉO (ADISQ) INC.
REASONS FOR ORDER: PELLETIER J.A.
DATED: October
14, 2005
WRITTEN SUBMISSIONS BY:
Marek Nitoslawski
Jean-Philippe Mikus For the Applicant
Julie A. Thorburn
Colette Matteau For the
Respondents
SOLICITORS OF RECORD:
Fasken Martineau Du Moulin LLP. For the Applicant
Montréal, Quebec
Cassels Brock & Blackwell LLP.
Brodeau, Matteau, Poirier For the
Respondents
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