Canadian Recording Industry Association v. Canada (Attorney General), 2006 FCA 336

Date: 20061017

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

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.

Date: 20061017

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)

EVANS J.A.

[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[2]               Following CRIA’s decision that it would no longer represent certain of its members (“the B Class members”) before the Board in this proceeding, the Board ordered CRIA to send a notice to its members saying that it had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

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.

“John M. Evans”

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:

SOLICITORS OF RECORD: