Canadian Association of Broadcasters v. Society of Composers, Authors and Music Publishers of Canada et al., (2006) 354 N.R. 310 (FCA)

• Judge: Létourneau, Noël and Evans, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 12, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 354 N.R. 310 (FCA);2006 FCA 337

CAB v. SOCAN (2006), 354 N.R. 310 (FCA)

MLB headnote and full text

Temp. Cite: [2006] N.R. TBEd. NO.012

Canadian Association of Broadcasters (applicant) v. Society of Composers, Authors and Music Publishers of Canada and Neighbouring Rights Collective of Canada (respondents)

(A-542-05; 2006 FCA 337)

Indexed As: Canadian Association of Broadcasters v. Society of Composers, Authors and Music Publishers of Canada et al.

Federal Court of Appeal

Létourneau, Noël and Evans, JJ.A.

October 19, 2006.

Summary:

The Copyright Board certified tariffs of the royalties payable by commercial radio sta­tions from 2003 to 2007 to the Society of Com­posers, Authors and Music publishers of Canada and to the Neighbouring Rights Col­lec­tive of Canada. The Canadian Associ­ation of Broadcasters applied for judicial review.

The Federal Court of Appeal allowed the application, set aside the decision and re­mitted the matter to the Board. The Board was to be constituted to include the two mem­bers who were not members of the pan­el which rendered the original decision.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Suffi­ciency of - Section 68(4)(b) of the Copy­right Act required that the Copyright Board send a copy of each approved tariff, to­gether with its reasons for decision, to each collective society that filed a pro­posed tariff and to any person who filed an ob­jec­tion - The Federal Court of Appeal stated that "'Adequacy' was to be assessed in light of the functions performed by rea­sons: enhancing the quality of decisions, assuring the parties that their submissions have been considered, enabling the deci­sion to be subject to a meaningful judicial review, and providing future guidance to regulates ... Equally important, the ade­quacy of the reasons must be assessed in context, including the agency's record, the issues to which the reasons relate, and the scope of the agency's expertise." - See para­graph 11.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Suffi­ciency of - The Copyright Board certified tariffs of the royalties payable by commer­cial radio stations from 2003 to 2007 to two collectives - The Board found that the rate had historically undervalued music to a radio station's revenues and that "based on the evidence taken as a whole", the un­der­valuation was between 10 and 15 per­cent - The Board valued the under­esti­ma­tion at "about 10 percent" - The Federal Court of Appeal allowed the Canada Asso­ciation of Broadcasters' judi­cial review application - It was not suffi­cient for the Board to justify its quantification by mere­ly referring to the evidence taken as a whole - The Board's reasons served neither to facilitate a mean­ingful judicial review, nor to provide future guidance for regula­tees - The Board's difficulty seemed to have stemmed in part from the Associa­tion's failure to produce relevant evidence - However, the Board could have requested additional evidence - If none was forth­coming, then it could have explained how it had made its best efforts to estimate an appropriate rate increase - It was not bound to quantify each component that jus­ti­fied an increase, but could choose simply to explain the reasoning supporting its quantification - See paragraphs 9 to 19.

Copyright - Topic 5620

Copyright Appeal Board (now Copyright Board) - General - Judgments and orders - [See both Administrative Law - Topic 549 ].

Copyright - Topic 5620

Copyright Appeal Board (now Copyright Board) - General - Judgments and orders - The Copyright Board certified tariffs of the royalties payable by commer­cial radio sta­tions from 2003 to 2007 to two collec­tives - The Canadian Association of Broad­cast­ers applied for judicial review, assert­ing that the Board failed to consider its objec­tion that there had been a prolifer­ation in the number or rights holders to be compen­sated - The Association asserted that the Board should have recognized the in­creased financial burden that this placed on the industry - The Federal Court of Appeal rejected the assertion - Although the "cum­ulative burden" argument was not specific­ally mention in the Board's reason, it was implicit in the Board's finding that, on the basis of the evidence of rising revenues, the industry could afford to pay increased royalties even greater than those certified -Further, the Board referred to the com­bined rates payable to all the col­lectives in a footnote to its reasons - See paragraphs 6 to 8.

Cases Noticed:

Via Rail Canada Inc. v. National Transpor­tation Agency et al., [2001] 2 F.C. 25; 261 N.R. 184 (F.C.A.), refd to. [para. 11].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Asso­ciation of Broadcasters et al. (1999), 239 N.R. 119; 1 C.P.R.(4th) 80 (F.C.A.), refd to. [para. 12].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 104].

Statutes Noticed:

Copyright Act, R.S.C. 1985, c. C-42, sect. 68(4)(b) [para. 10].

Counsel:

John B. Laskin and Andrew Bernstein, for the applicant;

Y.A. George Hynna and Gilles M. Daigle, for the respondent, Society of Com­posers, Authors and Music Publishers of Canada;

Glen A. Bloom and Steve Seiferling, for the respondent, Neighbouring Rights Col­lective of Canada.

Solicitors of Record:

Torys LLP, Toronto, Ontario, for the ap­pellant, Canadian Association of Broad­casters;

Gowling Lafleur Henderson LLP, Ottawa, Ontario, for the respondent, Society of Composers, Authors and Music Publi­shers of Canada;

Osler Hoskin Harcourt LLP, Ottawa, On­tario, for the respondent, Neighbour­ing Rights Collective of Canada.

This application was heard at Toronto, Ontario, on October 12, 2006, by Létour­neau, Noël and Evans, J.A., of the Federal Court of Appeal. Evans, J.A., delivered the fol­lowing reasons for judgment for the court on October 19, 2006.