Copyright Board Rules of Practice and Procedure: Plus Ça Change, Plus C'est La Même Chose?

After years of concern about extraordinary delays and other problems that led a Senate Committee to label the Copyright Board back in 2016 as “dated, dysfunctional and in dire need of reform”, the Board has finally come up with some supposedly new “Copyright Board Rules of Practice and Procedure: SOR/2023-24”

The only thing that is reasonably clear from this very prolonged, non-transparent, and no doubt very expensive exercise and the resulting new document is that the Board is trying to justify yet another budget increase of as much as a million dollars a year.

The costs of the Rules are expected to be less than $1 million annually. While parties will be required to provide information earlier on in proceedings, the amount or type of information required from parties will be the same as under the current Model Directive. (highlight and emphasis added)

It bears repetition that the Board has held only one actual hearing in more than five years and that almost all of its decisions for a very long time have been unimportant and mostly unopposed. Indeed, several proposed tariffs have been withdrawn by collectives.

There is nothing in the new procedures that warrants optimism that the Board will rise beyond its dysfunctional doldrums. Meanwhile, the Board will have 25 FTE employees and a net cost of operations before government funding and transfers $5,171,140 for 2022-2023.

I’ll discuss only four issues in these “new” Rules, namely

• Interrogatories
• Quorum
• Case Management
• Delays in Decisions

Interrogatories

The elephant in the room has always been and still remains the issue of interrogatories. Some collectives have used the interrogatory process to put forward irrelevant and arguably abusive questions to objectors that require the production of irrelevant and confidential financial information, etc. The results of overreach on the part of some collective and failure by the Board to control this process have ranged from time consuming fishing expeditions to try to build a case to the driving away of and withdrawal of well-meaning objectors as a result of oppressive and expensive financial and time costs, not to mention irrelevant disclosure of financial and other sensitive business information. Another tactic has been the demand for lengthy interrogatory answers from each member or too many members of associations representing a large membership. See my blog from 2011 about Access Copyright’s aggressive use of interrogatories that led to the withdrawal of all objectors even including major educational associations except from one lone individual whose reason for involvement was never clear.

The Board now explicitly gives itself the discretion to rule on the “scope”, etc. of interrogatories – which it has always had - but absolutely no indication of what type of information will be considered relevant and how it will refrain from making the problematic pro-collective rulings it has made in the past, e.g. as mentioned above:

Interrogatories

34 The Board or the case manager may make an order to permit interrogatories and to specify their number, type, scope and form, the time limits for their completion and the person to whom they may be addressed.

BTW, the Competition Tribunal has had “Rules” in place since 2008 that apparently work well – and are more like the time honoured processes in the Courts that require the exchange of Affidavits of Documents after adequate pleadings and subsequent discovery – rather than the endless and often abusive fishing expeditions enabled by the Copyright Board in the name of “interrogatories” that have driven worthy and well-intentioned objectors away, even long before it became clear that Copyright Board tariffs aren’t mandatory. Courts do not allow for preliminary and lengthy fishing expeditions by plaintiffs to determine the basis, if any, of their case. Courts do not allow plaintiffs to put the cart before the horse. Why would a rational objector spend a fortune engaging in interrogatories or fights about interrogatories and the other procedural uncertainties endemic at the Board to oppose a tariff that won’t even be mandatory at the end of the day?

Quorum:

There is a new and explicit provision re “Quorum”.

Quorum

10 In all proceedings before the Board, the quorum is one member.

I am not aware that anyone asked for this. In the past, this has been dealt with pursuant to s. 22 of the Interpretation Act, meaning that a quorum would be majority of appointed members.

It is bizarre that the Chair of the Board can now designate just one person to be a quorum. Even supposedly simple matters may become contentious and complicated for better or for worse – e.g. the Breaktrhrough Films “unlocatable” case – the decision for which seems to have disappeared from the Board’s expensive new website but can be found here thanks to Prof. Ariel Katz. Although it would seem inconceivable, this new Rule would allow only one member to decide such complex and economically significant matters such as the retransmission tariff, which is worth more than $100 million a year.

BTW, the Copyright Act provides that:

66 (1) There is established a Board to be known as the Copyright Board, consisting of not more than five members, including a Chair and a Vice-chair, to be appointed by the Governor in Council.

This suggests that there must be a least a Chair and a Vice-Chair. The question of whether or not there was a quorum very nearly became an issue in 2018.

Case Management

It's strange enough that, under the legislation and rules, a case manger could be merely an employee or outside consultant who could decide very significant procedural matters, presumably including such matters as rulings on interrogatories.

Case manager

66.504 (1) The Chair may assign a member, officer or employee of the Board or a person engaged under subsection 66.4(3) to act as a case manager of a matter before the Board.

Staff

66.4 ...

(3) The Board may engage on a temporary basis the services of persons having technical or specialized knowledge to advise and assist in the performance of its duties and the Board may, in accordance with Treasury Board directives, fix and pay the remuneration and expenses of those persons.

In the Federal Court and the Ontario Superior Court, case managers are Associate Judges and Masters respectively who invariably have been very experienced lawyers. Even if case management rulings can be entrusted to one person, that person should at least be a duly appointed member of the Board and one with adequate legal qualifications.

Under the new Rules, the case manager can decide such weighty matters as:

• whether interrogatories should take place and their parameters as applicable;
•  documents to be filed with the Board before a hearing, including legal briefs and case records

All that said, it is hard to see how this sits with s. 66.5(2) of the Copyright Act, which requires that:

Decisions

(2) Matters before the Board shall be decided by a majority of the members of the Board and the presiding member shall have a second vote in the case of a tie. (highlight added)

Delays

What other court of tribunal allows a decision to be pending for several years AFTER the adjudicators have “retired” and are presumably being paid while thinking about the pending decision? Judges of the Federal Court and Federal Court of Appeal have eight weeks after retirement to render any pending decisions. Even Supreme Court of Canada justices have only six months after they retire to participate in decisions in cases on which they sat. The Canadian Judicial Council has specifically pronounced that “judges should render decisions within six months of hearing a case, except in very complex matters or where there are special circumstances.”

Even with the recently time limits regulations, the Board can still keep a tariff decision pending for a long time and postpone the date of a decision presumably for years under the rubric of  “exceptional circumstances”.

Someone with a lot of patience and $5.00, might think about doing an Access To Information and  Privacy (aka “ATIP”) request seeking documentation, including names of retired members and amounts paid for post-retirement consideration of decisions in matters of which they have “begun to consider” pursuant to the open-ended provision of s. 66.5(1). The provision reads as follows:

Concluding matters after membership expires

66.5 (1) A member of the Board whose term expires may conclude the matters that the member has begun to consider.

It would presumably be very easy for the Board to provide this information. The Board has very good records going back to its inception in 1989. However, one should not be surprised if the Board were to strongly resist such an ATIP request and even spend a lot of money on outside counsel in the process.

Concluding Comments

Currently, for the first time ever, neither the Vice Chair nor the Secretary General have any legal qualifications. The appointment of the current Vice Chair expires on September 30, 2023. Moreover, there is a notable absence of common law perspective at the Board – even more so than in the past.

On a positive note, it appears that there will NOT be a Copyright Board “Town Hall” this year under the auspices of the CBA at the annual CBA IP Day.  This should be a relief for those who felt obliged to observe this unproductive ritual over the last few years that resulted in essentially nothing other than management platitudes and promises. Here is the presentation of Presentation by Nathalie Théberge, Vice-chair and Chief Executive on Practical results of the Modernization of the Board from last year’s CBA Town Hall posted some time after the fact.

The viability of the Copyright Board in the future will depend on two seemingly simple elements:

1. Collectives must propose tariffs for approval that offers good value, terms and conditions that make them attractive for users, preferably without the need for interrogatories and hearings; and,
2. The Board must develop the expertise, efficiency, and determination to approve such tariff proposals, and, if appropriate, make them even better in a short period of time measured in weeks or months and not in years and not retroactively.

If the Board can manage to expeditiously approve truly fair and equitable tariffs that offer good value and convenience and, above all, provide necessary access to sufficient repertoire, then there is a strong likelihood that such “tariffs” will be utilized with enthusiasm.

However, one can confidently expect that certain collectives, especially any with extremely limited actual repertoire and a narrow view of what constitutes necessary “access”, are busy lobbying hard for legislation to make tariffs effectively mandatory – in spite of two clear Supreme Court of Canada decisions and case law going back decades. Such legislation would be a very unfortunate move on the part of the Government – and would likely give rise to prolonged litigation.

HPK

PS – beware the forthcoming Budget on March 28, 2023 and budget implementation legislation – where we have twice seen this Government break a major campaign promise about not burying bad and irrelevant things in omnibus budget bills.

Copyright Board Annual Report 2021-2022

The Copyright Board’s recently posted 2021-2022 Annual Report (“Report”) covers the period from April 1, 2021 to March 31, 2022.

(Copyright Board)

What does this full-page collage with this uncredited photograph on page 13 the Board’s Report possibly have to do with Canada’s Copyright Board? I, for one, have no idea. But it takes up a whole page, along with several other diverting and uninformative photographs in this Report that is overall mostly devoid of any actual useful information.

That’s regrettable as the deadline for objecting to proposed tariffs looms and potential objectors have to decide whether or not to become vulnerable to potentially extremely intrusive and invasive interrogatories, expert witness costs, and huge legal expenses to deal with tariffs that the Supreme Court of Canada (“SCC”) has confirmed with crystalline clarity are NOT MANDATORY. More on this below…

The Chairman’s “Message” to the Report notes that:

The 2021‒2022 fiscal year was also marked by the Supreme Court of Canada’s decision in York v. Access Copyright, an important decision that clarifies, among other things, the scope of tariffs approved by the Board. This decision will certainly have an impact on the Board’s ability to deliver on its mandate, but it will be some time before we see the concrete results of this decision, including the cumulative effect of the decision and the changes made to the Copyright Act in 2019.(highlight and emphasis added)

The York decision from the Supreme Court of Canada (“SCC’) is, of course, the elephant in the room at the Copyright Board. It is difficult to comprehend what “concrete results” of the York decision the Board does not understand. The SCC clearly ruled that:

Access Copyright’s tariff as approved by the Copyright Board is not mandatory for users

It was unnecessary and inappropriate for the Courts below to issue a declaration about fair dealing in these circumstances

Nonetheless, there were serious errors in the Courts below noted concerning their pronouncements about fair dealing, e.g. re “aggregate” copying.

While there may be more “results” in the future, the above is already as clear as can be. The SCC decision more than “clarifies, among other things, the scope of tariffs approved by the Board”. It unambiguously declares that Board tariffs for Access Copyright are NOT mandatory and not enforceable and makes important statements about fair dealing. BTW, I was honoured to have played a very major role and to have made the prevailing arguments as counsel for my esteemed client CARL in the SCC in getting this result.

These are rulings that the Board must follow – now and not if and when the Board finally can “see the concrete results of this decision”. The Board may not like the decision – but the Board is bound by it. Even if the SCC’s statements about fair dealing are technically “obiter dicta” under the circumstances, SCC obiter dicta – especially when it is so pointed, on point, and  precise as in the instance – is as good as law.

In the past, the Board has at times appeared to be hostile to the SCC and Federal Court of Appeal. One had hoped that this had passed. I wrote here  in 2009 about how former and then sitting Board Chair Justice William Vancise expressed his frank views.

The Board cannot even bring itself to use the “M” word, i.e. “mandatory”, in relation to its tariffs  - or more precisely “not mandatory” - in this Report – which was the essence of the SCC case.

Indeed, the only place the Board uses the “M” word is:

“mandatory training required as part of organizational measures to prevent and address workplace harassment and violence”

The Board is no doubt hoping, along with Access Copyright and other collectives and content owner lobbyists, that the Government will try to undo the SCC’s York ruling and curtail fair dealing in the educational sector. That, of course, would be an enormous legislative, political, and legal mistake that will likely result in costly litigation and uncertainty for years to come. Of course, the Board would probably use such uncertainty to justify more deflection and delay and, no doubt, to demand and even bigger budget so that it can analyze the obvious.

Interestingly, although the period of the report ends on March 31, 2022, it does NOT mention the ESA v. SOCAN “making available” case that was argued in the SCC in January of 2022 and decided on July 15, 2022.  That result was another existential body blow to the Copyright Board, holding, in effect, that the Board got it very wrong in its ill-advised and very wasteful venture into international law and that the Board “will be held to the “correctness” standard of review when it comes to interpreting the Copyright Act because it shares concurrent first instance jurisdiction with the Superior Courts. The Board will be given no deference for being “reasonable” in its interpretation of the substantive provisions of Copyright Act. It must be correct. Importantly, this is the first new category of correctness review since the landmark SCC Vavilov decision.

The Report contains some interesting language about how the Board is “constrained” by decisions of the Courts. It would have been more accurate and more respectful to say that the Board is subject to  and guided by rulings of the Courts – both in the form of judicial review and other decisions that may call into question the reasonableness or even the correctness of the Board’s decisions – as was the case in the York University litigation, in which Access Copyright sought – ultimately unsuccessfully – to enforce the Board’s tariff ruling.

If the Board is to serve any useful purpose and to have a long-term future, it would do well to focus on its mandate and to stay in its lane – which is all about and only about:

• Rate setting
• Establishing tariffs that – while not mandatory – are sufficiently attractive and reflect good enough value that users will voluntarily adopt and maybe even embrace them.

I have always said that there are tariffs that are “de facto” if not “de jure” mandatory – such as those of SOCAN and Re:Sound. If you operate a radio or TV station, there is no other way to clear these music rights other than to avoid the process by playing only public domain music and public domain sound recordings. Those tariffs have mostly been fairly reasonable because there has been sufficient competent organized opposition over the years.

On the other hand, inexperienced objectors with insufficient resources to spend easily five and even six or seven figures opposing a tariff will eventually be worn down by the inevitable irrelevant and oppressive interrogatories that the Board has shown little or no commitment to curtailing. Even the AUCC (now Universities Canada) was forced to withdraw from the Access Copyright tariff case in 2012, although it might have handled the whole matter very differently.

 The major collectives have only limited interest in making the Board better. It seems that their limited interest is only in making the Board a faster and cheaper place to do business.

Many users are now going to be asking themselves whether there’s any point in getting into the quagmire and quicksand of a Copyright Board tariff proceeding at potentially enormous expense  and opening their doors to offering collectives such as Access Copyright a potential treasure trove of interrogatory material. If the Board somehow manages to come up with a tariff that offers good value, a user can then sign a licence based upon it. Otherwise, for example with Access Copyright, the user can ignore the tariff and get licences, when needed, in other more efficient ways for far better value – which is precisely what so many institutions have been doing for nearly a decade with total vindication since the Access Copyright’s “tariffs” have been declared as NOT MANDATORY by the SCC in 2021.

Collectives have almost always done very well at the Board, though not so much in the Federal Court of Appeal and definitely not so much in the Supreme Court of Canada. Board proceedings have almost always been very profitable – with the costs being borne by members and the public.

In the past, tariff proceedings were usually a bankable cash cow for collectives. One notable but apparently isolated exception was Access Copyright’s attempt to get lots of money from provincial governments, outside Quebec. I wrote about this at some lengthy back in 2015:

To recapitulate, the Board awarded a tariff of 11.56 ¢ per FTE (full time equivalent) for the period 2005-2009 and 49.71 ¢ per FTE for 2010-2014. That’s less than 1% and about 2% respectively of what AC asked for.  According to the Board, the tariff will generate a total of only about $370,000 over its ten year period – which is likely only a small fraction of the costs involved in obtaining the tariff.

Here is that decision, interestingly with Justice Vancise as chair of the panel, which hopefully will be kept in mind by all concerned as Access Copyright attempts to impose a tariff for 2024-2026 for post-secondary institutions as follows:

(a) $15.65, if the educational institution is a university; or

(b) $6.01, if another educational institution.

The 2021-2022 Report contains virtually nothing new or interesting. Is all about management platitudes, e.g.:

Expected Outcomes

The Board strives to be a credible institution, well-respected both by the creators and the users of copyrighted material, because of the efficiency of its operations and its unique expertise in copyright matters.

It has adapted and will adapt with resilience and agility to the challenges posed by a constantly evolving legal and economic environment, whether at the national or international level, while offering high-quality support to parties and the public requesting its services.

The never ending tinkering with procedures – such as requiring “grounds” for new tariffs and objections at an early stage – is simply obvious and won’t change anything. The requirement for “fair and equitable” tariffs is hardly new – what else has the Board and its predecessor supposedly been doing for the last eight decades?

Bottom line:

The vast majority of the “tariffs” approved by the Board are no brainer unopposed rubber stamp exercises that somehow still take a very long time.

The unlocatable owner regime is an embarrassing waste of time and resources. Hopefully, it doesn’t still consume a whole FTE resource as then Chair William Vancise confirmed in 2014. With only one  inconsequential rulings visible in the 2021-2022  reporting period, it would be difficult to understand how this took more than a very few hours at the most to deal with. The Copyright Act could be amended to deal with these increasingly rare situations as an exception along with other specific exceptions.

The Board is continuing to try to justify itself as an important and essential quasi-judicial tribunal, which it once was. However, it has failed to clearly get beyond the “dysfunctional” description conferred by a Senate Committee in 2016 and continues to be an expensive and unproductive though paradoxically high profile presence in the Canadian administrative tribunal landscape. It has held only one hearing in the last five years.

Its proposed new Rules of Practice and Procedure will likely accomplish little or nothing – other than to provide an excuse for the Board to demand an additional $1 million a year to its already inflated budget:

The costs of the proposal are expected to be less than $1 million annually. While Parties would be required to provide information earlier on in proceedings, the amount or type of information required from Parties would be the same as under the current Model Directive. (emphasis added)

If the Board is to have any credibility and serve any useful purpose going forward, it needs competent, independent and balanced management with legal expertise in both civil and common law and – of course – in copyright law. The Board’s Members should, of course, reflect these requirements.

It’s really too bad that the ISED Minister @FP_Champagne seems to be apparently 100% missing in action on what is going on here – although it’s 100% his responsibility.

Happy Holidays to one an all!

HPK

My ABC 2017 Presentation and Update on Access Copyright v. York University

On June 30, 2017, I presented a Copyright Law Update at Queen’s University to the wonderful ABC group, which consists mostly of copyright librarians and officers at the post-secondary level. There were also observers from important associations interested in Canadian post-secondary education. It was a good program and I was very pleased to be invited back. Naturally, I focused mainly on fair dealing and other copyright issues and events of interest to the educational community.

The Access Copyright v. York University case was of great interest to everyone. The Court had earlier tantalizingly indicated the decision would be released “Shortly after July 1 weekend”. However, we learned at the last minute that York University had asked for a delay. Here’s their letter in which York’s counsel actually asked to get the decision 48 hours before its public release. Frankly, I’ve never heard of such a request. Even Supreme Court of Canada “lockups”, which are extremely rare, give counsel at the most a one hour and fifteen minute “heads up” before decisions are released to the public at 9:45 AM and counsel cannot even communicate the contents to their client. In any event, this extraordinary request was denied but the Court did agree to delay the release until no earlier than July 7, 2017, when hopefully we all find out what the Court ruled in Phase I.

The timing here is very important to the public interest because, of course, the deadline for filing an objection to Access Copyright’s proposed tariff for 2018-2020 is July 19, 2017. Naturally, everyone wants to know what the Federal Court will have to say about whether York’s fair dealing guidelines are viable and whether York succeeds on its narrow argument that the “interim” tariff imposed at the end of 2010 is “mandatory”. For whatever reasons, York expressly told the Court that it was not necessary to rule on the whether a “final” tariff could be mandatory. I have written at length about this issue and how the Supreme Court of Canada has ruled that Copyright Board tariffs are not mandatory and the potential implications of this ruling for the York University case.

The Copyright Board has yet to rule on the seven-year-old application for a tariff for 2011 onward, and whatever happens in the York University case is likely to be appealed. So, the next hearing may be a long time getting underway. It makes little sense for it to proceed while the seven-year-old application from 2010 is still undecided and the Federal Court decision can be and likely will be appealed, whatever the outcome.

Whether in spite or because of this uncertainty, there was a lot of interest in the filing objections with the Copyright Board by July 19, 2017. One point that came up repeatedly is whether associations that have many members need to answer interrogatories on behalf each member. The answer is clearly that this is not necessarily necessary. If the association asks the Board to allow for a representative sample of members to file responses to interrogatories, such a request would likely be positively received. The Board even said so last time around – only this came too late. The request had not been made. Such requests are routine when radio or TV stations are involved, because there are hundreds of them and they obviously don’t all answer interrogatories. In any case, these points are touched on in my slides for the ABC event, which are available here and which provide some hopefully useful clickable links.

HPK

Some Comparative Observations & Stats on the Copyright Board, Selected Canadian Tribunals & the Supreme Court of Canada

Some lobbyists and interested members of the copyright bar have been actively endorsing the Copyright Board’s longstanding campaign for more resources to supposedly solve the extraordinary delay problems at the Board. Here’s another very recent effusive example. There is a persistent but unexplained expectation that more resources will somehow speed up the frequently four year delay before a hearing even takes place and the now seemingly new normal delay of two years or more after the hearing for a decision to be rendered.  Assuming that members of the Copyright Board have expertise in their subject matter, and that they are actively engaged in writing their decisions, it is hard to see how more resources alone will have any positive effect in solving the delay problem. Federal Court judges routinely issue numerous – even dozens – of substantive and significant decisions every year in six months or usually much less time after hearing with no more “resources” other than one clerk just barely out of law school. Many of these cases are far more complex both factually and legally and sometimes in terms of public law importance than most at the Copyright Board. Even the less complex ones – for example routine immigration cases – are very important to the parties involved and require great care and judicial consideration.

The Canadian Judicial Council has recently stated that it should never take more than six months for a judge to render a decision, except in the most complex of cases. Indeed, the CJC said that “judges should render decisions within six months of hearing a case, except in very complex matters or where there are special circumstances.” It is difficult to find any examples of cases at the Board that would warrant an exception to this benchmark.

Ironically, even after these uniquely lengthy delays, the Board’s decisions in turn are regularly challenged in the Courts and sometimes dramatically reversed. Moreover, in two recent instances and after long delays, the Board has even felt compelled itself to issue quick “mea culpa” corrections, which have in in turn led to even more complications.

In this light, consider the following:

• There is an old adage attributed to Benjamin Franklin that “if you want something done, ask a busy person”.
• Canada’s Copyright Board is already by far the largest specialized copyright tribunal of its kind anywhere in the world.
• The Copyright Board process involves extensive use of an onerous interrogatory process that yields relatively little useful evidence at a hearing, but consumes enormous amounts of time (and money for lawyers) and has on several occasions driven away well-intentioned objectors.
• The interrogatory problem is exacerbated because the Copyright Board process never requires the tariff applicant to put forward the facts and legal arguments on which it intends to rely at the outset – which is contrary to virtually any other tribunal or court process that I have ever heard of. The result is that some tariff applicants simply go fishing in the interrogatory process – often in a drift net fashion – and thereby sometimes simply drive their opponents away. Whether this result is intentional and strategic doesn’t really matter. It happens because the Board lets it happen and some objectors’ counsel have arguably not taken all available steps to curtail this excess.
• The Copyright Board hears again and again from the same perennial “experts” who sometimes have little if any independence from those who ultimately pay their bills and whose “evidence” would almost certainly never be allowed in a normal court, especially  in view of recent jurisprudence in the IP context from the Supreme Court of Canada. 
• Even if these “experts” were sufficiently “independent”, it is highly questionable in many cases whether their testimony is even really “necessary”. The Supreme Court has made it clear that if the “expert” evidence is not “necessary”, it should not be admitted. The Board members themselves are assumed to have some expertise in copyright and economic regulation and the Supreme Court has said quite clearly that experts are both unnecessary and undesirable when the “common sense” of the decision maker should suffice.
• There are seldom any complex legal issues involved in Copyright Board hearings, and when they do arise, the Board is often reversed by the Federal Court of Appeal (at least once in a “brusque” manner according to retired Chairman Vancise – and yes, I was involved) and lately and clearly by the Supreme Court of Canada in the “pentalogy”. 
• Every specialized tribunal suffers from the inherent risk of “regulatory capture”. It is well known that can be an unseemly amount of lobbying when it comes to Copyright Board appointments. See Simon Doyle’s recent tightly pay walled but important piece in the Globe and Mail.  Adding more resources can only exacerbate any possible potential problems in this respect.
• There is much to be said for considering the American model of “consent decrees” overseen by truly independent and expert federal judges. Indeed, Canada has a Competition Tribunal with a lean and efficient support infrastructure and several Federal Court judges with expertise and experience in economic regulation and even intellectual property issues in place at any given time. Since the Copyright Board was born out of concern about “super monopolies” expressed by the late great Judge Parker in 1935, the possible adaptation of a “consent decree” model in Canada under the aegis of the Competition Tribunal is something that merits serious exploration. In theory, the entire role of the Board could be modified and absorbed by the Competition Tribunal, although this would almost certainly require legislative change. Such a transformation might also save taxpayers a lot of money.
• The Patented Medicines Notice of Compliance proceedings in the Federal Court are over and done with including a judgment within 24 months because regulations say that they must be. These cases are usually very complicated factually, and often involve several experts in pharmaceutical chemistry, etc. – an area far removed from the “common sense” comfort zone of most judges. However, these hearings run well because they must – and normally take no more than 4 or 5 days.

Below are some potentially interesting and useful statistics from the most apparently analogous federal institutions. This chart is a work in progress and may be further developed. Suggestions are welcome, on or off line. Corrections are also welcome, since I’m no expert in the interpretation of bureaucratic financial and planning reports.

The inclusion of the Supreme Court of Canada is a result of the  published statement of the retired Chairman of the Copyright Board (William Vancise) in 2006 shortly after his appointment:

I am not at all happy with the time it takes to render a final decision. I have tried to address the issue and I can assure you it will be resolved. If the Supreme Court of Canada can render a decision within six months of a hearing, there is no reason why this Board cannot do the same. My goal is to see that this occurs. (emphasis added)

It was indeed a rather odd notion on the part of Judge Vancise to use the Supreme Court of Canada as a proxy for the Board’s timing benchmarks, because the Supreme Court does not hear evidence or witnesses and it does, by definition, almost always deal with very complex and important legal issues. However, QED. If the Court can render judgments in six months, a fortiori one would think that the Board could do so – if not in much less time. Therefore, it is unfortunate that Justice Vancise was not able to resolve this problem during his ten year tenure and it would seem anecdotally that the delay problem has actually become significantly worse in recent years. For example, it has been nearly 2.5 years since the Board’s hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) matter and no decision has yet been rendered in that matter. The Access Copyright Post-Secondary Tariff seems to have gone into a state of suspended animation, since there has been no follow up by the Board to its announcement on January 17, 2014 that it will postpone the hearing sine die and will “will either decide when to reschedule the hearing or proceed on paper”.

We expect to shortly see an analysis from Prof. Jeremy de Beer commissioned by Heritage Canada based upon actual data of the time between some of the steps in the Board’s process.

So, in the meantime, here’s some data I’ve assembled without being commissioned by anyone:

Tribunal/ Applicable Regulations or Rules re Procedure	Mandate/# of Significant & Substantive Decisions per year	# of Members	# of Staff FTE	Budget (i.e. net cost of operations)
Copyright Board/No procedural regulations in place other than Board’s informal and very general “Directive on Procedure”	Setting Copyright Tariffs and Levies pursuant to Copyright Act/ app. 3 per year. (S. 77 “Unlocatable” decisions cannot be considered as “significant” and have never involved an actual hearing)	Up to 5 full time. Currently 1 full time + 1 part time. Chair (currently vacant)who  must be a sitting or retired judge.	16	3,514,185 (2013-2014)
Competition Tribunal/ Competition Tribunal Rules (SOR/2008-141)	Dealing with wide range of applications arising from Competition Act/ app. 10 per year since 2000.	Up to six judicial members from Federal Court and not more than eight lay members	9	3,184,043 (2014-2015)
CRTC/Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (SOR/2010-277)	Wide range of licensing and regulatory oversight in broadcasting and telecommunication, internet, ant-spam, etc./ app. 600-700 decisions a year – many minor but many very important, e.g. 2014	Chair, two Vice-Chairs and up to 10 national and Regional Commissioners	437	17,586 (2013-2014) (Expenses of 65,030 offset by revenues of 47,444)
Canadian International Trade Tribunal/ See Act and Regulations here.	“international trade cases, procurement cases, customs and excise tax appeals and government-mandated inquiries within the Tribunal’s jurisdiction”/129 decisions in 2013-2014	Up to seven full time members including a chairperson	62	13,168,000
Canadian Industrial Relations Tribunal/Canada Industrial Relations Board Regulations, 2012 (SOR/2001-520)	Handles more than 600 labour related matters under Federal jurisdiction, including Status of the Artist Act. Processing times are published here.	Chair, two Vice-Chairs, up to six full time members, and additional part time members	97	17,567,000
Trademarks Opposition Board/ See Practice in Trademark Opposition Proceedings	Rules on oppositions to registration and s. 45 expungement. Many of these rulings involve hearings./ 741 decisions rendered in 2011-2-12	App. 10 members and 12 staff These are all public service positions.	12	N/A
Supreme Court of Canada/Rules of the Supreme Court of Canada (SOR/2002-156)	Highest Court of Canada. Process more than 500 leave applications and issues approximately 80 decisions per year, on average about 4 months after hearing and 15 months total duration from application for leave to appeal.	Nine full time justices.	215	42,011,659 (net cost of operations est. for 2013-2014)

The problems of the Board can only be solved if both of two things happen:

• In the short term and very urgently, we need the appointment of a Chairperson (who must be a sitting or retired judge) who can hit the ground running in terms of knowledge of copyright and administrative law at minimum and is able and prepared from a managerial standpoint to make some changes in the way things work at the Board. This person should preferably also have experience in competition, communications and/or other related areas of economic regulatory law. It will be relatively easy to find such a qualified person from the ranks of sitting or retired Federal Court or Federal Court of Appeal judges and probably very difficult to find the right person elsewhere. Needless to say, given the very specialized mandate of the Board, such person’s career prior to appointment to the bench should not give rise to any possible apprehension of bias.
• In the medium but not far off term (i.e. a year or two but no more), we need regulations to deal with such issues as steps in a proceeding, the interrogatory or discovery processes, benchmark timelines, “expert evidence”, etc. The Board is clearly unable or unwilling to make anything more than very incremental changes from now well-established but clearly problematic processes. Its latest effort at consultation has produced a remarkable consensus amongst a mix of normally strange bedfellows who agree that the recommendations by the majority of the Working Committee may only make things even worse, which is no easy task in this instance. See the very limited terms of reference at page 27 of the recent Working Committee Report.

It will be noticed in the above chart that the Board is the only institution listed without regulations or other form of mandated specific rules to govern its procedure.  There is no reason for this to be the case – indeed experience suggests quite the contrary. As everyone knows, regulations are much easier to implement than statutes. That sometimes pesky and petulant creature known as Parliament is not involved. All the necessary authority is already in place in this case. There’s no need – and arguably no excuse - to wait for the five year review.

HPK