|
Copyright - Practice. Society of Composers, Authors and Music Publishers of Canada v. Sirius XM Canada Inc.
In Society of Composers, Authors and Music Publishers of Canada v. Sirius XM Canada Inc. (Fed CA, 2024) the Federal Court of Appeal dismissed an application for a JR, here from a "rates-setting" ruling where the applicant argued "the thinness and inadequacy of the evidentiary record before the Copyright Board":[3] The Board’s decision is acceptable and defensible and adequately supported on the evidentiary record before it. The Board also explained its decision in detailed and complete reasons. The Board’s decision, involving subjective judgment calls, policy considerations and regulatory experience outside of the ken of the Court, is relatively unconstrained: Re:Sound v. Canadian Association of Broadcasters, 2017 FCA 138, 20 Admin LR (6th) 179 at para. 49; Canadian Copyright Licensing Agency (Access Copyright) v. Canada, 2018 FCA 58, 422 D.L.R. (4th) 112 at para. 100; CMRRA-SODRAC Inc. v. Apple Canada Inc., 2020 FCA 101. Thus, the Board’s decision is reasonable.
[4] Contrary to the submissions of SOCAN, the Board did not act in a procedurally unfair way. As the respondent notes in its memorandum of fact and law (at paras. 57-61), SOCAN had many procedural opportunities and tools to advance and protect its interests. SOCAN, a sophisticated and experienced party before the Board and represented by counsel, must be taken to know about these procedural opportunities and tools. To the extent that SOCAN was concerned about the thinness and inadequacy of the developing record before the Board, it had every ability to use those procedural opportunities and tools to adduce, discover and challenge evidence. If SOCAN did not use them, it is the author of its own misfortune. The Board, a neutral adjudicator in a specialized proceeding involving sophisticated parties, does not have to act on its own motion to help a party build its evidentiary case, such as by requiring a party to produce evidence. In administrative proceedings such as these, sophisticated parties alone are responsible for their own interests.
[5] This case resembles Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2010 FCA 139; see also CMRRA-SODRAC Inc. v. Apple Canada Inc., 2020 FCA 101 at para. 21. In SOCAN (2010), this Court rejected SOCAN’s argument that the Board "“should have resorted to its procedural powers under the Act and taken all necessary steps to obtain the information it deemed necessary for the purpose of certifying a tariff that is fair and equitable”" (at para. 31). This Court confirmed that the Board has those sorts of procedural powers (at para. 34) but that does not relieve a party from its "“obligation to file the necessary evidence in support of its proposed tariff”" and its obligation to "“put its best foot forward”" (at para. 33). It is not for the "“Board to do it in [SOCAN’s] stead”" (at para. 33).
[6] This is not a case where the Board, after the hearing but before it rendered its decision, decided it on an issue entirely unanticipated by the parties and outside of their reasonable contemplation, thereby depriving them of the opportunity to adduce and test evidence and make submissions on that issue. In cases where, as here, the issues are adequately defined or can be foreseen at the outset, parties must anticipate what might bear on their resolution and the final result and must conduct their cases accordingly.
|
