Applicant applied for judicial review, seeking to quash decision of Copyright Board. In notice of application, applicant made request under R. 317 of Federal Court Rules that board supply it with material that was relevant to application that was in possession of board and not in applicant’s possession. Board informed parties it did not have any relevant material in its possession that was not already in applicant’s possession. Applicant placed material that was before board and in its possession into application record but it was not under affidavit. Respondents brought motion to remove material from applicant’s record. Motion granted. Where party had material in its possession and that was before administrative decision maker at time it made decision but it was not produced by decision maker in response to R. 317 request, party had to take affirmative steps to place material before reviewing court. Rules 306 and 307 allowed parties to serve upon each other affidavit that appended material. Here applicant included in its application material it had in its possession that was before board at time it made its decision but it did not introduce material by way of affidavit, which was error. Applicant should have served affidavit explaining that material was before board when it made its decision, and appending relevant material to affidavit. Respondents then could exercise right to cross-examine if they wanted to. Minor irregularity could be easily fixed. Applicant was to remove materials it mistakenly included from record. Applicant could then serve affidavit appending material that was before board and in its possession, including material that was mistakenly included in application record. Respondents could then serve affidavits in response and cross-examinations could take place.
Canadian Copyright Licensing Agency (Access Copyright) v. Alberta (Nov. 26, 2015, F.C.A., David Stratas J.A., File No. A-293-15) 260 A.C.W.S. (3d) 206.