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 Indeed, several proposed tariffs have been withdrawn by collectives.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
- Case Management
- Delays in Decisions
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:
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?
There is a new and explicit provision re “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.
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.
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.
(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:
(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)
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.
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:
- 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,
- 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.
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.