Federal Appeal

Administrative Law

Tribunal had no authority to compel negotiations

Applicant reversed bargaining position and refused to bargain minimum fees for right to use existing works with respondent after having done so for many months. Tribunal found applicant failed to bargain in good faith. Tribunal refused to exercise discretion in declaring copyright could be subject matter of scale agreement under Status of the Artist Act (Can.) (“SAA”). Application for judicial review was allowed. Tribunal had no authority to compel negotiations or deal with such negotiations. Jurisdiction could not be conferred by consent. Matters relating to copyright including imposition of minimum fees for use of existing works did not fall within SAA. Applicant could not agree to scale agreement affecting copyrights and applicant’s refusal to pursue negotiations relating to matters could not be attributed to failure to negotiate in good faith. Pelletier dissented and would have dismissed application for judicial review finding conclusion that applicant failed to bargain in good faith was reasonable and interpretation even to “provision of services” by tribunal did not create conflict between SAA and Copyright Act (Can.).

National Gallery of Canada v. Canadian Artists’ Representation

(Mar. 4, 2013, F.C.A., Marc Noël J.A., Johanne Trudel J.A., and J.D. Denis Pelletier J.A., File No. A-84-12) 226 A.C.W.S. (3d) 557.

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