In re Copyright Appeal Board and Canadian
Association of Broadcasters
Court of Appeal, Jackett C.J., Noël A.C.J. and
Perrier D.J.—Ottawa, June 23, July 8, 1971.
Court of Appeal—Copyright—Jurisdiction to review deci
sion of federal tribunal—Whether retroactive—Copyright
Appeal Board—Approval of statement of royalties—When
does it become decision of Board—Requirement for publica
tion in Canada Gazette—Copyright Act, R.S.C. 1952, c. 55,
s. 50 Federal Court Act, secs. 28, 61.
A statement of royalties approved by the Copyright
Appeal Board on May 17, 1971, pursuant to s. 50 of the
Copyright Act was duly published in the Canada Gazette on
June 1, 1971.
Held (Noël A.C.J. dissenting), the Court of Appeal is
without jurisdiction under s. 28 of the Federal Court Act to
review the Board's decision.
Per Jackett C.J. and Perrier D.J.: Under s. 61(1) of the
Federal Court Act the Court's review jurisdiction is exercis-
able only with respect to decisions made after the Act came
into force, viz on June 1, 1971. The Board's decision was
made prior to publication of the approved statement in the
Canada Gazette.
Per Noël A.C.J., dissenting: The Board's decision was not
made until it was published in the Canada Gazette. Further
more, under s. 61(2) of the Federal Court Act the Court's
review jurisdiction is, as a general rule, exercisable with
respect to decisions made prior to June 1, 1971, and s. 61(1)
does not remove that jurisdiction where, as here, the deci
sion was not subject to appeal before the Act came into
force.
National Indian Brotherhood v. Juneau [No. 21 supra,
p. 73.
APPLICATION.
John D. Richard for Canadian Association of
Broadcasters, applicant.
Yves Fortin and Paul Amos for Sound
Recording Licences (SRL) Ltd.
G. W. Ainslie, Q.C., and J. E. Smith for CBC.
JACKETT C.J.—This is an application for an
order extending the time within which the appli
cant may file a notice of an application to
review and set aside a decision of the Copyright
Appeal Board.
The application is under s. 28 of the Federal
Court Act, the relevant portion of which reads
as follows:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
(2) Any such application may be made by the Attorney
General of Canada or any party directly affected by the
decision or order by filing a notice of the application in the
Court within ten days of the time the decision or order was
first communicated to the office of the Deputy Attorney
General of Canada or to that party by the board, commis
sion or other tribunal, or within such further time as the
Court of Appeal or a judge thereof may, either before or
after the expiry of those ten days, fix or allow.
The application originally came on before me,
sitting alone. As it appeared that there was a
grave doubt as to the jurisdiction of this Court
to entertain the proposed application to review
in respect of which the extension of time is
sought, I adjourned the application to be
brought on before a court consisting of at least
three judges.
The matter has now been argued at length
before the Associate Chief Justice, Perrier D.J.
and myself.
First, I should say that, assuming that this
Court has jurisdiction to entertain the proposed
application to review a decision of the Copy
right Appeal Board, I am of the view that we
should grant an extension of ten days from the
date of the order disposing of this application.
If, however, this Court decides that it does not
have such jurisdiction, I am of the view that
this application should be dismissed.'
The decision of the Copyright Appeal Board
in question is to be found at page 16 of EXTRA
No. 8, Vol. 105 of Part 1 of the Canada
Gazette, and reads as follows:
The Copyright Appeal Board hereby approves the
attached statements of the fees, charges or royalties which
may be collected by Sound Recording Licences (SRL) Ltd.
in respect of the issue or grant by it of licences for the
performance in Canada of its dramatico-musical or musical
works during the calendar year 1971.
A. L. THURLOW
Chairman
JEAN MIQUELON
Member
PAUL OLLIVIER
Member
Ottawa, May 13, 1971
The Federal Court Act deals with the applica
tion of the jurisdictional provisions of that Act
by s. 61, which reads as follows:
61. (1) Where this Act creates a right of appeal to the
Court of Appeal or a right to apply to the Court of Appeal
under section 28 to have a decision or order reviewed and
set aside, such right applies, to the exclusion of any other
right of appeal, in respect of a judgment, decision or order
given or made after this Act comes into force, unless, in the
case of a right of appeal, there was at that time a right of
appeal to the Exchequer Court of Canada.
(2) Subject to subsection (1), any jurisdiction created by
this Act shall be exercised in respect of matters arising as
well before as after the coming into force of this Act.
I had a similar jurisdictional problem, a few
days prior to the argument of this motion, when
an application for directions was made before
me in respect of a section 28 application that
had been filed in respect of a "decision" that
had been rendered before the Federal Court Act
came into force on June 1, 1971. 2 In that case, I
adjourned the application for directions until
such time as it should be determined that the
Court had jurisdiction in the matter, but I
expressed my tentative opinion on the question
of jurisdiction as follows:
Apart from any other problem concerning the application
of s. 28(1) in the circumstances of this matter, the applica
tion is, on the face of it, an application to set aside a
"decision or order" that was made on May 28, 1971,
whereas s. 61(1) of the Federal Court Act provides, among
other things, that "Where this Act creates ... a right to
apply to the Court of Appeal under s. 28 to have a decision
or order reviewed and set aside, such right applies, ... in
respect of a ... decision or order given or made after this
Act comes into force ...", and the Federal Court Act was
brought into force by proclamation on June 1, 1971. It
follows, in my opinion, that there is no right under s. 28(1)
to apply to have a "decision or order" made on May 28,
1971, reviewed and set aside and, therefore, that this Court
has no jurisdiction in the present matter.
If the tentative view that I expressed at that
time is correct, it would follow that the Court
has no jurisdiction under s. 28(1) to entertain an
application to have a decision of the Copyright
Appeal Board given or made on May 13, 1971,
reviewed and set aside.
The applicant in the present matter puts for
ward two alternative bases for its contention
that the Court has jurisdiction in respect of its
proposed application under s. 28(1) to have the
Court review and set aside the decision of the
Copyright Appeal Board that was signed by its
members on May 13, 1971. In the first place, it
submits that that document did not become a
"decision or order" of the Copyright Appeal
Board until it was published in the issue of the
Canada Gazette that was dated June 1, 1971.
Alternatively, it says that, even if it was a
"decision or order" that was "given or made"
before June 1, 1971, s. 61(1) does not have
effect to deprive the Court of the jurisdiction
that it would have, apart from s. 61(1), by virtue
of s. 61(2).
The contention that the Copyright Appeal
Board's decision was not "given or made" until
June 1, 1971, is based upon s. 50 of the Copy
right Act. The portions of that section upon
which this submission is based read as follows:
(6) As soon as practicable after the Minister has referred
to the Copyright Appeal Board the statements of proposed
fees, charges or royalties as herein provided and the objec
tions, if any, received in respect thereto, the Board shall
proceed to consider the statements and the objections, if
any, and may itself, notwithstanding that no objection has
been lodged, take notice of any matter which in its opinion
is one for objection; the Board shall, in respect of every
objection, advise the society, association or company con-
cerned of the nature of the objection and shall afford it an
opportunity of replying thereto.
* * *
(8) Upon the conclusion of its consideration, the Copy
right Appeal Board shall make such alterations in the state
ments as it may think fit and shall transmit the statements
thus altered or revised or unchanged to the Minister certi
fied as the approved statements; the Minister shall there
upon as soon as practicable after the receipt of such state
ments so certified publish them in the Canada Gazette and
furnish the society, association or company concerned with
a copy of them.
(9) The statements of fees, charges or royalties so certi
fied as approved by the Copyright Appeal Board shall be
the fees, charges or royalties which the society, association
or company concerned may respectively lawfully sue for or
collect in respect of the issue or grant by it of licences for
the performance of all or any of its works in Canada during
the ensuing calendar year in respect of which the statements
were filed as aforesaid.
(10) No such society, association or company shall have
any right of action or any right to enforce any civil or
summary remedy for infringement of the performing right in
any dramatico-musical or musical work claimed by any such
society, association or company against any person who has
tendered or paid to such society, association or company
the fees, charges or royalties that have been approved as
aforesaid.
The applicant emphasizes that the Copyright
Appeal Board, upon the conclusion of its con
sideration of a matter, is required, by subsec.
(8), to "make ... alterations" in the statements,
to certify the statements and to "transmit" the
statements to the Minister and that the Minister
is required, by the same subsection, to "pub-
lish" the statements so "certified" in the
Canada Gazette and to "furnish" a copy of
them to the society, association or company
concerned, and it argues that, until all those
steps have been taken, the statements do not
have the status given to the "statements ... as
approved by the Copyright Appeal Board" by
subsec. (9) and subsec. (10) of s. 50.
The contention of the applicant in support of
this submission is supported by the Canadian
Broadcasting Corporation, who appeared by
counsel to support the application. Counsel for
that corporation summarized their position on
this point as follows:
It is submitted that bearing in mind the statutory scheme of
section 50 of the Copyright Act, and in particular subsection
(8), it cannot be said that the Copyright Appeal Board had,
as a matter of law, given or made its order or decision until
after the 1st of June.
Regardless of the correctness of the conten
tion that subsecs. (9) and (10) do not operate
until the Minister has carried out his duties,
under subsec. (8), of publishing and furnishing
copies of the certified statements, upon which
question I do not find it necessary to express
any opinion, in my view, the Copyright Appeal
Board had completed its task and had given or
made its decision or order when it made its
alterations, if any, in the statements and trans
mitted the certified statements to the Minister
as the "approved statements". That was clearly
done in this case before June 1, 1971. I am of
opinion, therefore, that the Copyright Appeal
Board had given or made the decision or order
in question before June 1, 1971.
I turn now to the applicant's alternative basis
for contending that this Court has jurisdiction in
respect of its proposed motion under s. 28(1),
which is that, even if the Copyright Appeal
Board's decision or order was given or made
before June 1, 1971, s. 61(1) does not have
effect to deprive the Court of the jurisdiction
that it would have, apart from s. 61(1), by virtue
of s. 61(2).
I repeat the provisions of s. 61 here for
convenience:
61. (1) Where this Act creates a right of appeal to the
Court of Appeal or a right to apply to the Court of Appeal
under section 28 to have a decision or order reviewed and
set aside, such right applies, to the exclusion of any other
right of appeal, in respect of a judgment, decision or order
given or made after this Act comes into force, unless, in the
case of a right of appeal, there was at that time a right of
appeal to the Exchequer Court of Canada.
(2) Subject to subsection (1), any jurisdiction created by
this Act shall be exercised in respect of matters arising as
well before as after the coming into force of this Act.
It would make it easier for me to explain and
consider the submissions made by the parties in
support of their position on this branch of the
case if I first analyze the section as I read it
apart from those submissions.
First, I should say that, as I understand it, it
is well established that a right of appeal is a
substantive right and, therefore, having regard
to the rule that statutes altering substantive
rights do not in the absence of express words
have retrospective effect, when a new right of
appeal is created, or an old right of appeal is
abolished, the change in the law applies only to
judgments or decisions in proceedings launched
after the change in the law, unless there is an
express statutory provision to the contrary. 3
The same principle would, I should have
thought, be applicable to a law conferring a
right of review such as that found in s. 28. In
the light of that basic principle, s. 61(1) is, as I
read it, a provision for giving a degree of retros-
pectivity to the rights of appeal and the section
28 rights of review created by the Federal Court
Act.
Section 61(1), as it seems to me on a superfi
cial reading, in the light of the fact that the Act
was brought into force on June 1, 1971, says
that, where the Federal Court Act creates
(a) a "right" of appeal to the Court of Appeal,
or
(b) a "right" to apply to the Court of Appeal
under s. 28 to have a decision or order
reviewed and set aside,
such "right" applies in respect of a judgment,
decision or order given or made on or after June
1, 1971, even though it was given or made in a
proceeding launched prior to that date, and, to
that extent givés retrospective effect to the
right so created. To that plain, simple provision
there are added two incidental clauses. First, by
virtue of the concluding words of s. 61(1), the
rule contained in that subsection does not apply
in the case of a right of appeal where there was
previously a right of appeal to the Exchequer
Court of Canada. (For obvious reasons any
such right of appeal should apply in respect of
judgments, orders or decisions made before
June 1, 1971, and should, therefore, fall under
s. 61(2).) Secondly, a "right" of appeal to the
Court of Appeal in respect of a judgment, order
or decision made on or after June 1, 1971,
applies "to the exclusion of any other right of
appeal", which means, as it seems to me, that
where the Act creates a "right of appeal" to the
Court of Appeal in respect of a particular judg
ment, decision or order, that right applies to the
exclusion of any right that would otherwise
exist to appeal in respect of that judgment,
decision or order to any other court. (The obvi
ous, if not the only, application of this subsidi
ary rule is to cut off appeals to the Supreme
Court of Canada in respect of any such judg
ment, decision or order in a proceedings
launched before June 1, 1971.)
In other words, my superficial reading of s.
61(1) is that,
(a) it makes a right of appeal to the Court of
Appeal (other than one where there was pre
viously a right to appeal to the Exchequer
Court), and a right to apply for review under
s. 28, retrospective so that it applies in
respect of judgments, decisions or orders
given or made on or after June 1, 1971, and
(b) it abolishes an appeal to any other court in
any case where there is a right of appeal to
the Court of Appeal that has been created by
the Federal Court Act.
Turning now to s. 61(2), it provides a rule
concerning the retrospectivity of the jurisdic
tional provisions of the Federal Court Act
"Subject to subsection (1)," which, as I under
stand it, means that the rule contained in s.
61(2) applies only to cases that have not already
been dealt with in s. 61(1).
I turn now to the submissions made by the
parties in support of the position that s. 61(1)
does not have effect to deprive the Court of the
jurisdiction that it would have, apart from s.
61(1), by virtue of s. 61(2).
The applicant, as I understood counsel, took
the position that the words "to the exclusion of
any other right of appeal" controlled the
application of s. 61(1) so that, if there is a
decision or order of a tribunal in respect of
which there was previously no right of appeal at
all—which is the situation with reference to
decisions of the Copyright Appeal Board—then
s. 61(1) has no application to its decisions and s.
61(2) operates to make the section 28(1) juris
diction apply "in respect of matters arising as
well before as after the coming into force of
this Act."
The Canadian Broadcasting Corporation car
ried this submission to its logical conclusion. Its
submission, as I understood it, is that s. 61(1)
operates only to exclude "any other right of
appeal" and in no way operates to give retro
spective force to the provisions of the statute
creating a right of appeal to the Court of Appeal
or to the provision (s. 28(1)) creating a right to
apply for a review. According to this submis
sion, as I understood it, s. 61(2) is the applica
ble rule and makes all rights of appeal to the
Court of Appeal created by the Act, and the
rights to a review created by s. 28(1), apply in
respect of matters "arising as well before as
after" the coming into force of the Act.
In order to do justice to this contention, I
quote the relevant parts of the very helpful
memorandum supplied to the Court by counsel
for the Canadian Broadcasting Corporation:
5. In the alternative, if the order or decision of the
Copyright Appeal Board was made prior to the 1st of June,
the Court of Appeal still has jurisdiction under section 28 of
the Federal Court Act to set aside the order by virtue of
subsection (2) of section 61 of the Federal Court Act, which
gives the jurisdiction conferred on the Court of Appeal by
section 28 of the Act a retrospective operation which pro
vides as follows:
61. (2) Subject to subsection (1), any jurisdiction creat
ed by this Act shall be exercised in respect of matters
arising as well before as after the coming into force of
this Act.
6. Subsection (1) of section 61 does not have the effect,
on the facts of this case, of taking away from the Court of
Appeal the jurisdiction conferred on it by subsection (2).
The applicable words of subsection (1) are as follows:
61. (1) Where this Act creates ... a right to apply to the
Court of Appeal under section 28 to have a decision
. set aside, such right applies, to the exclusion of any
other right of appeal in respect of a . .. decision or order
made or given after (the 1st of June, 1971).
7. Prior to the Federal Court Act coming into force, there
never was any right of appeal from a decision of the
Copyright Appeal Board. Since there was no pre-existing
right of appeal, the rule that the right to review is to operate
to the exclusion of any other right of appeal is inapplicable.
* * *
8. The rule of statutory interpretation is that rights of
appeal, being substantive rights, are not affected by the
repeal of the legislation granting them and are to continue
notwithstanding such repeal, unless there is a clear statutory
intent to the contrary. The purpose of subsection (1) of
section 61 is to provide specifically that in respect of
decisions or orders made after the 1st of June, 1971, the
litigants in respect of pending actions could no longer exer
cise the right of appeal provided by those sections of the
statutes which had been repealed by section 64 of the
Federal Court Act. But in respect of decisions or orders
made prior to the 1st of June, vested rights of appeal
conferred on the litigants under the sections of those stat
utes which had been repealed by section 64(3) were not
affected.
(It should be noted that, in the partial repro
duction of s. 61(1) in paragraph 6 of their
memorandum, counsel for the Canadian Broad
casting Corporation have omitted the comma
after the words "to the exclusion of any other
right of appeal" so that those words do not
appear, as they do in the statute, as a paren
thetical clause between commas. I have no
doubt that this was a typographical error but it
does have the effect of lending support that
does not exist to the view advanced by the
memorandum.)
One result of the view put forward by coun
sel for the Canadian Broadcasting Corporation,
if it is correct, is that there are concurrent rights
of appeal in respect of decisions or orders of
certain tribunals given or made before June 1,
1971, that is, the old right of appeal to the
Supreme Court of Canada and the new right of
appeal to the Court of Appeal. This follows, as
it seems to me, because, if the contention is
right that s. 61(2) creates unlimited retrospec-
tivity in respect of s. 28(1) proceedings and s.
61(1) merely cuts off old appeals in respect of
decisions or orders made or given on or after
June 1, 1971, it follows that s. 61(2) creates
unlimited retrospectivity in respect of rights of
appeal to the Court of Appeal and s. 61(1)
"does not have the effect ... of taking away
from the Court of Appeal the jurisdiction con
ferred on it by subsec. (2)." Concurrent rights
of appeal have not been unknown, but it seems
unlikely that it was intended to create such
rights at this stage of our judicial history.
On the other hand, the view of s. 61 that I
had formed on a preliminary examination (as
outlined above) results in a situation that is, to
say the least, somewhat difficult to justify on
rational grounds. Section 18 confers exclusive
original jurisdiction on the Trial Division to
issue a writ of certiorari against a federal tribu
nal, and this applies, by virtue of s. 61(2), in
respect of matters arising as well before as after
the coming into force of the Act, but, for practi
cal purposes, this certiorari jurisdiction is
excluded by s. 28(3) where the Court of Appeal
has jurisdiction under s. 28(1) to review and set
aside a decision or order. The result is that, on
my preliminary view, if a decision or order were
given or made prior to June 1, 1971, certiorari
would lie in the Trial Division, and if it were
given or made on or after that day, there would
be no certiorari jurisdiction but an application
for review could be made under s. 28(1). If this
Court is to have jurisdiction in such matters,
and it is legislative policy that it is to be exer
cised by an application under s. 28(1) if the
decision or order was given or made on or after
June 1, 1971, one cannot help but wonder why
the same procedure should not be applicable if
it was given or made prior to that day. (A
possible answer is that s. 28 not only creates a
new procedure but also lays down new rules of
substance and it might have been thought that
there should only be limited retrospectivity for
such new substantive rules.)
Attractive as I find the idea that all jurisdic
tion in the Federal Court of Canada to review
the validity of the decisions of federal tribunals
should be exercised under s. 28 of the Federal
Court Act, I cannot put on the words of s. 61 of
the Act the construction contended for by coun
sel for the Canadian Broadcasting Corporation.
There are two principal difficulties in the
contention that I have not been able to get over.
My first difficulty with the contention is that
it is founded on the assumption that s. 61 oper
ates in two stages, viz: first, subsec. (2) operates
to provide that "jurisdiction" created by the
Act shall be exercised in respect of matters
arising "as well before as after" the coming into
force of the Act and then subsec. (1) has what
ever effect it has; and so, the argument is made
that "Subset. (1) ... does not have the effect
... of taking away from the Court of Appeal
the jurisdiction conferred on it by subsec. (2)".
In my view, this rendering of the meaning of s.
61 does violence to the whole structure of the
section. To begin with, these are two related
enactments that come into force simultaneous
ly, so that there can be no question of subsec.
(1) having the effect of taking away a jurisdic
tion that has already been conferred by subsec.
(2). In the second place, Parliament states first
the special rule concerning the application of
certain appeal and review "rights", which spe
cial rule is found in s. 61(1), and then states the
general rule concerning the ambit of operation
of jurisdiction created by the Act, which gener
al rule is found in s. 61(2), and that general rule
is to operate "Subject to subsec. (1)", which is
to say that it operates in any area where the
special rule in subsec. (1) does not operate.
The second difficulty that I find in the con
struction of s. 61 contended for by the Canadi-
an Broadcasting Corporation is that it distorts
subsec. (1) from its ordinary grammatical sense.
What subsec. (1) says is that a "right" of appeal
to the Court of Appeal or a "right" to apply
under s. 28 "applies ... in respect of a ... deci
sion ... given . .. after this Act comes into
force". It incidentally, and in addition, says that
such a right so applies "to the exclusion of any
other right of appeal". To say that the sole
effect of the subsection is to abolish rights of
appeal to other courts where there is a right of
appeal or a section 28 right of review is to
ignore the principal portion of s. 61(1). 4
In my view, after giving the best considera
tion that I can to the submissions on this
application,
(a) the effect of s. 61(1) is, first, to give
retrospective effect to the provisions creating
rights of appeal to the Court of Appeal and
the section 28 rights of review so as to make
them apply to judgments, orders or decisions
given or made on or after June 1, 1971 and,
second, to abolish rights of appeal to the
Supreme Court of Canada or any other court
in any case where any such right has been
created, and
(b) the effect of s. 61(2) is to give general
retrospective operation to the other jurisdic
tional provisions in the statute.
On that view, there is no provision that makes
s. 28(1) apply retrospectively to decisions or
orders given or made prior to June 1, 1971, and
the Court of Appeal has, therefore, no jurisdic
tion in relation to the proposed application that
is the subject of this application.
Because the Court of Appeal has no jurisdic
tion in relation to the proposed application for a
review under s. 28(1), I am of the view that this
application for an extension of time in which to
make that application should be dismissed.
* * *
NOEL A.C.J. (dissenting)—I have had the
advantage of reading the notes of the Chief
Justice and I will, therefore, refrain from going
into any detail as to the facts which led to the
present application for an order extending the
time within which the applicant may file a
notice of an application to review and set aside
a decision of the Copyright Appeal Board.
The purpose of the present application is to
enable the Canadian Association of Broadcast
ers to attack by means of a review under s. 28
of the Federal Court Act, a decision of the
Copyright Appeal Board, wherein it approved
the fees, charges or royalties which could be
collected by Sound Recording Licences (SRL)
Limited, the substantial issue being whether
Sound Recording Licences (SRL) Limited was
a society, association or company which carried
on the business of acquiring performing rights
in recording. This issue, in turn, is dependent
upon whether a society or person which has
obtained by way of assignment all of the copy
right which manufacturers of records have
therein, has acquired a copyright in the per
forming right.
The present application is on the basis that if
the Court concludes that it has jurisdiction, the
extension of time will be granted; if not, the
application will be refused.
The Chief Justice in his notes has reached the
conclusion that the decision rendered by the
Board herein was reached prior to June 1, 1971,
and that because this decision was not rendered
on or after June 1, 1971, the Court's jurisdic
tion in the present case is excluded by s. 61(1)
of the Federal Court Act.
With respect, I am afraid that I cannot reach
the same conclusion on these matters. I am
indeed of the view that the decision of the
Board was not "given or made" or "rendue ou
établie" to use the language of s. 61(1) of the
Act until such time as the Minister under
subsec. (9) of s. 50 of the Copyright Act (c. 55)
published in the Canada Gazette the statement
of fees approved by the Board. The decision of
the Board, in my view, is not complete until this
is done, as subsec. (8) of s. 50 of the Copyright
Act requires the Board to transmit the state
ment of fees it has approved to the Minister
who then must publish it in the Canada Gazette.
Sect i ons 48 and following of the Copyright Act
spell out the manner in which pert orming right
societies are set up and the procedure to be
followed in establishing tariffs of fees, charges
or royalties which, once certified by the Copy
right Board and published in the Canada
Gazette, govern the payments to be made by
any person performing dramatico-musical or
musical works in which copyright subsists.
These fees, charges or royalties become the
only ones the society, association or company
concerned can respectively lawfully sue for or
collect in respect of the issue or grant by it of
licences for the performance of all or any of its
works in Canada during the ensuing calendar
year (cf. s. 50(9)). Once the above procedure is
followed and the above amounts are paid, no
performing right user can be sued for infringe
ment of the performing right (cf. s. 50(10)):
50. (10) No such society, association or company shall
have any right of action or any right to enforce any civil or
summary remedy for infringement of the performing right
of any dramatico-musical or musical work claimed by any
such society, association or company against any person
who has tendered or paid to such society, association or
company, the fees, charges or royalties that have been
approved as aforesaid.
It, in my view, follows that the prescription
requiring publication of the decision of the
Board is not a mere procedure but a substantial
part of the decision-rendering process. This
decision indeed becomes effective only after
publication and involves not only two parties
but all those who wish to avail themselves of
the right to perform dramatico-musical and
musical works in which copyright subsists. The
decision so published is indeed of the nature of
a licence granted to all those who wish to per
form these rights upon payment of certain fees
approved by the Board and published in the
Canada Gazette. This, of course, explains why
counsel for the applicant, Mr. Richard, stated at
the hearing that 800 copies of the issue of the
Canada Gazette containing the publication of
this decision of the Board are always requested
in order to be able to circulate them to the
users.
I am therefore of the view that as the publica
tion here took place on June 1, 1971, the appli
cant is therefore entitled to avail himself of the
review procedure under s. 28 of the Act.
I am also of the view that the applicant would
also be entitled to avail himself of the section
28 procedure on the basis that s. 61(1) does not
take this right away from him. It indeed appears
to me that the general rule with regard to a
recourse under s. 28 of the Act can be found in
s. 61(2) of the Act which reads as follows:
61. (2) Subject to subsection (1), any jurisdiction created
by this Act shall be exercised in respect of matters arising
as well before as after the coming into force of this Act.
If the rule is to be found in this subsection,
and the applicant would have, in so far as the
language used therein, a right to avail himself of
the section 28 procedure, then he has such right
unless it is taken away from him under another
section or subsection of the Act. The other
subsection, according to counsel for Sound
Recording Licences (SRL) Limited, which does
this is subsec. (1) of s. 61 of the Act. This
subsection reads as follows:
61. (1) Where this Act creates a right of appeal to the
Court of Appeal or a right to apply to the Court of Appeal
under section 28 to have a decision or order reviewed and
set aside, such right, applies, to the exclusion of any other
right of appeal, in respect of a judgment, decision or order
given or made after this Act comes into force, unless, in the
case of a right of appeal, there was at that time a right of
appeal to the Exchequer Court of Canada.
In order to determine whether the above sec
tion removes the right the applicant has under
subsec. (2) of s. 61, subsec. (1) of s. 61 must be
carefully examined in order to delimit its ambit,
having regard to the fact that we are dealing
with an exception to a rule which appears to be
stated in very broad terms in subsec. (2) of s.
61.
Subsection (1) of s. 61 says "where this Act
creates a right of appeal to the Court of
Appeal". The section deals here with the
appeals created by s. 27 of the Act which is a
brand new appeal procedure, and with those
appeals which are dealt with in Schedule B to
the Act, which are old appeals now transferred
to the Federal Appeal Court. The subsection
then continues "or a right to apply to the Court
of Appeal under s. 28 to have a decision or
order reviewed and set aside", which, of
course, is a brand new recourse which had no
existence in any Act prior to the proclamation
of the Federal Court Act. The subsection then
says that "such right", and this, of course,
means the rights of appeal under s. 27 of the
Act and under Schedule B of the Act as well as
the right of review under s. 28, "applies, to the
exclusion of any other right of appeal". The
literal meaning of these words in this context is
that for those cases where there existed an
appeal prior to the passing of the Act, recourse
can be had to the section 28 review procedure
to the extent that a judgment, decision or order
is not otherwise appealable as provided by s. 29
of the Act only if it is given or made after the
Federal Court Act comes into force. It still,
however, does not affect the right of a judg
ment, decision or order to be reviewed by the
section 28 procedure under the general rule laid
down in subsec. (2) of s. 61, and it then follows
that all cases, such as here where there was no
appeal prior to the new Act, can be reviewed
under the new procedure even if the judgment
or decision was rendered before the Act came
into force.
The general scheme of the Federal Court Act
appears to be directed toward providing new
rights of appeal, to allowing the new Court to
take over old rights of appeal given to another
Court, to maintain former rights of appeal to the
Exchequer Court, and, finally, to create a new
review procedure under s. 28.
The intent of the Act appears to be to insure
that proceedings launched but not decided
before the date of proclamation of the Act be
reviewed by way of appeals created by the Act
as well as by those appeals which existed in the
Exchequer Court and which are maintained in
the new Act and/or in some cases such proceed
ings may be subject to a section 28 review
procedure. In order to do so, it was necessary
to adopt a provision whereby such recourses
would be retroactive and this, of course, is what
took place both in subsecs. (1) and (2) of s. 61.
The retroactivity of subsec. (1) of s. 61 applies
only to those cases launched before the date the
Act came into force and decided after the Act
came into force whereas the retroactivity of
subsec. (2) of s. 61 applies to cases launched
before the Act came into force and decided as
well prior to, as after, the coming into force of
the Act. Having thus, by subsec. (1) of s. 61
legislated that in all cases where an appeal
existed prior to the proclamation of the Act a
recourse can be had to the section 28 review
procedure only for judgments and decisions
rendered subsequent to the proclamation date,
it does, I believe, follow, having regard to the
fact that we are here dealing with an exception
to the rule, that there is no such restriction
attached to a case where there was no appeal
and which is governed by the provisions of
subsec. (2) of s. 61.
In reaching this conclusion, I have, I believe,
merely given an ordinary literal meaning to the
words used in the Act. I have also, in doing this,
given to certain litigants, a recourse which will
enable them to attack a judgment, or decision
and without which they may well be left
(because of subsec. 2 of s. 61) entirely without
a remedy. I do not think that having regard to
the intent of the scheme of the Federal Court
Act to give recourses and remedies rather than
to deny them, it could be held that the legislator
had allowed old recourses to subsist for deci
sions rendered prior to the Act and had not
made any available to those who had none and
by subsec. (1) of s. 61, had provided for the one
case but not for the other.
It would, in my view, take clearer language
than subsec. (1) of s. 61 to take away from
those who, prior to the Act, had no appeal, the
benefit given them retroactively by subsec. (2)
of s. 61 of a section 28 review.
The scheme of the new Act, may I reiterate,
is to create new appeals and a new review
procedure under s. 28. If the language used in
the Act can be read so as to give a review
procedure before this Court where there was no
appeal prior to the Act, then such a procedure
should be available. If, in order to allow such a
procedure for a decision rendered prior to the
proclamation of the Act for which there was no
recourse in appeal, it is also necessary because
of the language used in the Act to accept that
there may well be concurrent appeals in all
cases where decisions were rendered prior to
the proclamation, then this, in my view, is pref
erable to denying a means of redress to one
segment of decisions, i.e., those, such as here,
rendered prior to the Act where there was no
right of appeal and where subsequent to the Act
a recourse to the provincial courts may be
(because of subsec. (1) of s. 61) no longer
possible.
I am therefore of the view that the Court of
Appeal has jurisdiction in relation to the pro
posed application for a review under s. 28(1)
and that, therefore, the extension for time
should be granted.
PERRIER D.J.—The applicant seeks leave to
appeal for reconsideration of a decision by the
Copyright Appeal Board (R.S.C. 1952, c. 55, s.
50).
The decision was given on May 13, 1971 and
received the approval of the Minister of Con
sumer and Corporate Affairs on May 18, 1971;
however, it was not published in the Canada
Gazette until June 1, 1971.
The ,Act respecting the Federal Court of
Canada came into force on June 1, 1971; before
this date no right of appeal existed from a
decision of the Copyright Appeal Board.
The applicant relies on the rights of appeal
mentioned in secs. 28 and 61 of the Federal
Court Act.
I have listened to and considered the interest
ing pleadings of counsel in this matter.
I have had the privilege of reading the Chief
Justice's notes in which he sets out lucidly the
difficulty and complexity of the problem this
Court is called upon to resolve.
Do secs. 28 and 61, through retroactivity,
grant a right of appeal from a decision given
before June 1, 1971?
It would be pointless to take up again and
repeat the Chief Justice's arguments concerning
the application and the interpretation of secs.
28 and 61.
For the same reasons that he set out in his
notes, I fully endorse his decision.
I have also read the notes of Noël A.C.J. but,
with due respect, do not share his view.
An alternative course, which I was disposed to follow,
was to grant the extension without considering the question
of jurisdiction and to deal with the jurisdiction question on
proceedings to quash under Rule 1100. However, the par-
ties concurred in asking the Court to deal with the jurisdic
tion question on this application.
2 National Indian Brotherhood v. Juneau [No. 2] supra, p.
73.
See, for example, Doran v. Jewell (1914) 49 S.C.R. 88,
Upper Canada College v. Smith (1920) 61 S.C.R. 413 per
Duff J. (as he then was) at pages 423 to 425, Singer v. The
King[1932] S.C.R. 70, Boyer v. The King [1949] S.C.R. 89,
and Marcotte v. The King [1950] S.C.R. 352.
4 It must not be overlooked that, by virtue of s. 29, there
can be no application under s. 28 to review an order or
decision "to the extent that" there is an appeal therefrom to
this Court, the Supreme Court of Canada, the Governor in
Council or the Treasury Board. That being so, I am unable
to see what purpose is served by the reference in s. 61(1) to
rights to review under s. 28 if the view urged by counsel for
the Canadian Broadcasting Corporation is correct.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.