Below is the Board’s response of November 25, 2010 to the submission below of AC and others that were filed in response to the Board’s November 23, 2010 deadline. The Board rarely moves this fast. This is really getting to be quite interesting.
- The Board will be treating all “intervenors” in effect as full objectors (although it is still hedging its bets to some extent here) – i.e. “unless absolutely necessary”
- This probably means a big fight ahead for these intervenors to stave off interrogatories that will very likely be overly onerous, unnecessary, irrelevant and designed to force them out of the hearing or to severely limit their ability to fully participate
- The Province of Alberta, which seemed to want a mores specifically defined role, is being told that it must accept a full role and responsibility in effect as a full objector (i.e. with interrogatories) and that this will the be the case “unless absolutely necessary” – whatever that means.
- The Board’s emphasis on treating “all participants equally” is not necessarily a good thing. As Ariel Katz reminded us from Orwell, "All animals are equal, but some animals are more equal than others." Obviously, not all participants have budgets of several million dollars a year to spend on lawyers and “expert” consultants, surveys etc.
I write, on behalf of Access Copyright, in response to the Board's Notice below. It is our understanding that the Board invited (in the Notice below) Access Copyright (and others) to provide its views as to whether "the government of Alberta [and] teachers, students and staff from the targeted institutions", being the "potential intervenors", should be granted "intervenor status with full participatory rights, in effect allowing them to act in these proceedings as if they were objectors" (setting aside "issues of duplicative representation or overlapping argumentation at this stage"). Please be advised that Access Copyright does not contest the Board's discretion to accord these potential intervenors the status suggested by the Board.
Access Copyright notes, however, that at least one such potential intervenor, Prof. Katz, and perhaps other persons whose submission we have not yet been provided, has responded to the Board's Notice, inter alia, by making legal submissions as to the Board's jurisdiction to confirm or deny a party's status as an "objector" within the meaning of the Copyright Act, effectively responding to Access Copyright's correspondence of September 22, 2010. It was not Access Copyright's understanding that such a submission was contemplated by the Notice. However, to the extent that any such submission(s) will be considered by the Board in its future deliberations on the status of the various parties who filed objections in this matter, Access Copyright requests the right to reply to any such submission(s) on an expedited basis.
I would be pleased to discuss the above request should the Board find that of utility.
Partner | Blakes
RULING OF THE BOARD
In its Notice of November 15, 2010 (the "Notice"), the Board acknowledged as objectors the Association of Universities and Colleges of Canada, the Association of Canadian Community Colleges, Athabasca University and the British Columbia Association of Institutes and Universities.
The purpose of this Ruling is to identify those who may participate to the examination process of the above-referenced proposed tariff as intervenors with full participatory rights.
1) In its Notice, the Board stated that it was inclined to grant to certain persons intervenor status with full participatory rights, in effect allowing them to act in these proceedings as if they were objectors. No one is challenging the participation of these persons. These persons were informed of the rights and obligations of such intervenors and were asked to confirm whether they wished to remain as participants. The following persons, who provided the confirmation the Board requested, are granted status as intervenor with full participatory rights: Mr. Sean Hunt, Mr. Ariel Katz, Mr. Sean Maguire, Mr. Mark McCutcheon, Ms. Meera Nair, Ms. Nancy Pardoe, Mr. Jay Rahn, the Canadian Alliance of Student Associations, the Canadian Association of University Teachers (CAUT) and the Canadian Federation of Students (CFS).
was one of the persons to whom the Board was inclined to grant intervenor status with full participatory rights. The province now asks that its participation be limited to receiving copy of evidence and arguments, filing a statement of case, calling witnesses and presenting oral or written arguments. Given the number of participants, the Board does not intend to treat some of them differently unless absolutely necessary. Alberta is asked to confirm by no later than Tuesday, November 30, 2010, whether it wishes to remain as intervenor with full participatory rights and obligations. If not, Alberta will not be granted intervenor status. Alberta
3) In its Notice, the Board expressed the preliminary opinion that the participation of certain persons would not be of assistance in these proceedings. These persons were invited to indicate the extent and nature of any association they may have with any post-secondary educational institution outside of the
targeted in the proposed tariff if they wished to be granted intervenor status in these proceedings. Only Mr. Pat Donovan and Mr. Jason Koblovsky responded to the Board’s Notice. Both failed to disclose any association with a targeted institution. Neither did they offer any evidence that they may be prospective users or reasons that would lead the Board to conclude that their participation may be of assistance. A mere statement that one is "covering" the public interest or that the proposed tariff’s terms are unfair are insufficient to establish a person’s status or to explain the contribution she may make. Consequently, these persons will not be granted intervenor status. Provinceof Quebec
4) In its Notice, the Board asked three persons to clarify whom they intended to represent. Ms. Liz Fulton-Lyne stated that she intended to represent
Yellowhead Tribal College, Mr. Sandy Ayer, Ambrose University Collegeand Mr. Brad Neufeldt, St. Mary’s . All asked to remain as intervenors with full participatory rights. The Board grants their request. University College
5) As stated in the Notice, notices of objections filed by any person other than those to whom this Ruling grants intervenor status will be treated as letters of comment and will be made part of the official record of these proceedings. The Board members who will hear the matter will consider them before reaching their decision. These persons are still permitted to consult the public record and to comment in writing on any aspect of the proceedings until the date set for the filing of final arguments, as are all members of the public.
6) Anyone even remotely familiar with how the Board proceeds knows that as a matter of course, the Board treats all participants equally, be they collectives, objectors or intervenors: they enjoy the same rights and are required to comply with the same obligations. Indeed, in the few instances where the Board has treated an intervenor differently, it has been usually, if not always, at the request of the concerned intervenor.
In these proceedings, intervenors and objectors will be treated identically unless circumstances dictate otherwise and being identified as one or the other will be of no practical consequence. As a result, and as was stated in the Notice, it is not necessary to rule on whether persons who filed notices of objection and who are allowed to participate as intervenors are proper objectors. Furthermore, since all participants who complied with the Notice are in effect being granted everything they asked for, there is no need to either afford them the opportunity to further comment or for the Board to provide reasons for its ruling. The only possible exceptions are Messrs. Donovan and Koblovski. In their case, they were afforded an opportunity to explain why they should remain as participants, and the reasons why they are not being allowed to so remain are clearly outlined above.