Federal Appeal


Civil Procedure

Preliminary question of law
Open to court to decline to consider correctness of judge’s answer to questions not properly falling within R. 220(1)(a)

Corporations commenced action against the Society of Composers, Authors and Music Publishers of Canada seeking to recover amounts paid in relation to ringtones downloaded onto mobile devices. SOCAN, acting on behalf of Canadian music creators, counterclaimed for ringtone royalties. Copyright Board certified tariff 24 authorizing SOCAN to collect royalties on ringtone downloads on ground downloads constituted communication to public within meaning of Copyright Act (Can.). FCA dismissed application for judicial review and leave to appeal to SCC denied. Pursuant to consent agreement, proposed replacement tariff 24 was certified for 2006-13, pursuant to which Corporations paid over $12 million. In separate proceedings, Copyright Board certified tariff 22.A, which set royalties for downloading musical work over Internet or mobile network. FCA dismissed application for judicial review but SCC heard two appeals, majority determining that musical works not communicated by telecommunication when downloaded. Copyright Board declined Corporations’ application to vary tariff 24 certification decisions, finding that power to vary did not include power to rescind. Corporations brought action against SOCAN, claiming SOCAN was unjustly enriched. On preliminary determination of questions of law, judge held that Corporations’ claim not finally decided and they were not prevented by consent agreement from claiming relief. Judge concluded that internet transmission of ringtone file not constituting communication to public (not under appeal) and Copyright Board had jurisdiction to certify tariff 24. He also concluded, however, that SOCAN not unjustly enriched and Corporations not entitled to order tracing distribution of tariff 24 royalties. Corporations’ appeal and SOCAN’s cross-appeal allowed in part. Determination of questions arose out of R. 220(1)(a) of Federal Courts Rules (Can.) which authorizes determination of questions of law. Although made on consent, open to court to decline to consider correctness of judge’s answer to questions not properly falling within R. 220(1)(a). Whether consent agreement provided basis upon which Corporations’ claim could be precluded was not pure question of law and should not have been decided. Judge should have declined to determine whether SOCAN unjustly enriched as this was not pure question of law and was central issue to be tried. Whether Corporations were entitled to order tracing distribution of tariff 24 royalties was also not pure question of law.

Rogers Communications Partnership v. Society of Composers, Authors and Music Publishers of Canada (Jan. 27, 2016, F.C.A., C. Michael Ryer J.A., Wyman W. Webb J.A., and D.G. Near J.A., A-141-15) Decision at 250 A.C.W.S. (3d) 417 was reversed. 262 A.C.W.S. (3d) 71.

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