Univ. Assoc. v. Cdn. Copyright Licensing (2012), 428 N.R. 297 (FCA)
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Temp. Cite: [2012] N.R. TBEd. FE.004
Association of Universities and Colleges of Canada and the University of Manitoba (applicants) v. The Canadian Copyright Licensing Agency operating as “Access Copyright” (respondent)
(A-395-11; 2012 FCA 22; 2012 CAF 22)
Indexed As: Association of Universities and Colleges of Canada et al. v. Canadian Copyright Licensing Agency
Federal Court of Appeal
Stratas, J.A.
January 23, 2012.
Summary:
The respondent moved to strike an affidavit filed by the applicants in support of their application for judicial review of a decision of the Copyright Board.
The Federal Court of Appeal, per Stratas, J.A., granted the motion and struck the affidavit.
Administrative Law – Topic 3345
Judicial review – General – Practice – Affidavit evidence – The respondent moved to strike an affidavit (the Juliano affidavit) filed by the applicants in support of their application for judicial review of a decision of the Copyright Board – The applicants suggested that the admissibility of the affidavit should be determined by the panel hearing the application, not by way of advance ruling – The Federal Court of Appeal, per Stratas, J.A., stated that “the issue of admissibility in this case is mainly one of law and is not discretionary. It is relatively clear cut. An advance ruling on admissibility would allow the hearing to proceed in a timelier and more orderly fashion. The admissibility of the Juliano affidavit should be determined now” – See paragraphs 10 to 13.
Administrative Law – Topic 3345
Judicial review – General – Practice – Affidavit evidence – The respondent moved to strike an affidavit filed by the applicants in support of their application for judicial review of a decision of the Copyright Board – The Federal Court of Appeal, per Stratas, J.A., granted the motion – For the most part, the affidavit offerred evidence that was not before the Copyright Board and that went to the merits of the matter before the Board – It did not raise matters that fell into any of the exceptions to the general rule against the court receiving evidence in an application for judicial review – It would offend the demarcation of roles between the court as a judicial review court, and the Board as a fact-finder and merits-decider – The affidavit did not supply necessary context and background that would be useful for the court when it reviewed the Copyright Board’s decision – Much of the affidavit that was said to be “context and background” was really evidence that went to the merits of the matter before the Board – See paragraphs 14 to 27.
Administrative Law – Topic 3345.1
Judicial review – General – Practice – Evidence (incl. new evidence) – [See second
Administrative Law – Topic 3345
].
Administrative Law – Topic 3357
Judicial review – General – Practice – Interlocutory proceedings (incl. application to strike) – [See first
Administrative Law – Topic 3345
].
Cases Noticed:
McConnell v. Canadian Human Rights Commission et al., [2004] F.T.R. Uned. 667; 2004 FC 817, affd. [2005] N.R. Uned. 188; 2005 FCA 389, refd to. [para. 12].
P.S. Partsource Inc. v. Canadian Tire Corp. (2001), 267 N.R. 135; 2001 FCA 8, refd to. [para. 12].
Alberta Teachers’ Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 2011 SCC 61, refd to. [para. 15].
Gitxsan Treaty Society v. Hospital Employees’ Union et al., [2000] 1 F.C. 135; 249 N.R. 37 (F.C.A.), refd to. [para. 19].
Kallies v. Minister of National Revenue, [2001] N.R. Uned. 241; 2001 FCA 376, refd to. [para. 19].
Bekker v. Minister of National Revenue (2004), 323 N.R. 195; 2004 FCA 186, refd to. [para. 19].
Kelley Estate v. Canada (Attorney General), [2011] F.T.R. Uned. 817; 2001 FC 1335, refd to. [para. 20].
Armstrong v. Canada (Attorney General), [2005] F.T.R. Uned. 613; 2005 FC 1013, refd to. [para. 20].
Chopra v. Canada (Treasury Board) et al. (1999), 168 F.T.R. 273 (T.D.), refd to. [para. 20].
Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R.(2d) 513 (C.A.), refd to. [para. 20].
Statutes Noticed:
Federal Courts Act, R.S.C. 1985, c. F-7, sect. 18.4(1) [para. 11].
Counsel:
Patricia J. Wilson and Glen A. Bloom, for the applicant;
Nancy Brooks, for the respondent.
Solicitors of Record:
Osler, Hoskin & Harcourt LLP, Ottawa, Ontario, for the applicant;
Blake, Cassels & Graydon, Ottawa, Ontario, for the respondent.
This motion was dealt with in writing, without the appearance of parties, by Stratas, J., of the Federal Court of Appeal, who delivered the following decision on January 23, 2012.
