This recent November 6, 2025 decision of
the Federal Court of Appeal (FCA) is a big smackdown of Re:Sound
- the big music
collective that represents “artists and record companies”. This is an
interesting decision for more than one reason.
Re:Sound – which has long been represented by the same law
firm that has also represented Universities Canada and York University –
apparently didn’t get around to making certain arguments below before the
Copyright Board.
The FCA was clearly not pleased with the attempt to “raise
for the first time before this Court” new arguments that had not been put
forward when they could and should have been in the forum below. So, the FCA
unsurprisingly and decisively – about one week after the hearing - dismissed
the judicial review.
What is rather interesting is that two the three judges here
(including Pamel, J.A., the author of this decision, and Webb, J.A., the
presiding judge) had heard the Blacklock’s appeal about a month earlier on
October 7, 2025, upon which I commented. During that
hearing, that panel was concerned that Blacklock’s had long ago discontinued its
copyright infringement claims in the case before them. Upon being confronted
with this and issue of whether its appeal was “moot”, Blacklock’s desperately tried
to amend its appeal factum and arguments on the spot in the FCA, or at least
adjourn to another day. At the close of the hearing, the FCA said it would rule
soon on the Blacklock’s case – though
that was on October 7, 2025.
The Re:Sound decision may suggest that the FCA will not be
thrilled by Blacklock’s attempt to do a makeover in the FCA.
HPK
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