consortium members reply toaccess copyright re crown immunity. september 14. 2011

8/3/2019 Consortium Members Reply ToAccess Copyright Re Crown Immunity. September 14. 2011.

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Copyright Board of Canada

Access Copyright Tariff ProposalsProvincial/Territorial Government Tariffs(2005-2009 and 2010-2014)

Preliminary Legal Proceeding re Crown Immunity

Reply Arguments of the Consortium Members to Access Copyright

Wanda NoelBarrister and Solicitor5496 Whitewood Ave.Ottawa, OntarioK4M 1C7

Tel: (613) 692-9232

and

FASKEN MARTINEAU DUMOULIN LLPBarristers and SolicitorsSuite 130055 Metcalfe StreetOttawa, OntarioK1P 6L5

J. Aidan ONeillAriel A. Thomas

Tel: (613) 236-3882

Of Counsel for the Consortium Members

September 14, 2011


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I. Summary of the Consortium Members Position in Reply to Access Copyright

1. The following constitutes the reply submission of the provinces of Alberta,

Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Newfoundland and Labrador, and

Prince Edward Island, and the territory of Nunavut (the Consortium members) in response to

the Factum filed with the Copyright Board by Access Copyright on August 30, 2011 with regard

to the issue of Crown immunity.

2. It is the submission of the Consortium members that, in its Factum, Access Copyright

has failed to rebut the presumption of Crown immunity which was described in the original Legal

Arguments filed with the Board by the Consortium members on June 15, 2011. Instead, in its

Factum, Access Copyright has advanced a series of arguments which, taken together,

demonstrate a serious mischaracterization of both the presumption of Crown immunity, and the

position taken by the Consortium members in this proceeding.

3. In this regard, it is important that the Copyright Board recognize and reaffirm the

longstanding presumption of Crown immunity. The Board will, in this case, set an important

precedent relating to the scope of the presumption of Crown immunity in Canadian law.

Although the Board is inherently empowered to ensure that copyright owners are fairly

compensated for the use of their works, the Board must also take great care not to exceed the

scope of the liability the Copyright Actimposes.

Copyright Act, R.S.C., 1985, c. C-42

4. In considering these legal arguments, and those of Access Copyright, the Board should

understand that the Consortium members are not seeking a ruling of blanket immunity from the

Copyright Act. Instead, they assert the defence of Crown immunity only in terms of their

respective liability in respect of this tariff proceeding. In making this reply argument to Access

Copyrights Factum, the Consortium members will argue that:

Access Copyrights assertion that Crown immunity from the Copyright Actis notengaged is incorrect, as the Crown is clearly prejudiced and the concept ofexpropriation is wholly inapplicable;

Nunavut has status to claim, and, in any case, is entitled to the presumption ofCrown immunity;


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the Copyright Actin no way necessarily implies or requires the Crown to bebound and that Access Copyright misunderstands the necessary implicationexception to the presumption of Crown immunity;

Access Copyright has misapplied the benefit/burden exception to thepresumption of Crown immunity; and, finally,

the Crown is entitled to immunity as a presumption of law, and Access Copyrightbears the legal onus of rebutting that presumption.

II. The Principles of Engaging Crown Immunity

5. Access Copyright makes two arguments as to why the presumption of Crown immunity

should, ab initio, not even be presumed in this matter. Access Copyright first asserts that the

liability to pay for use of copyright works is not prejudicial to the Crown, and that the

presumption of Crown immunity is therefore inapplicable. Access Copyright then goes on toargue that a common law principle of no expropriation without just compensation both applies

to, and overrides, Crown immunity from the Copyright Act. The Consortium members respond

to this argument as follows.

Prejudice to the Crown

6. Access Copyright asserts that if the Copyright Actaccrues to [the Crowns] benefit, then

the principle of statutory interpretation [the presumption of Crown immunity] will not apply.

Access Copyright then argues that since the Crown benefits overall from a society which has

laws protecting copyright, the Copyright Actis a net benefit to the Crown. There are three

fundamental problems with this approach.

Access Copyright Factum at para. 23

7. First, and most important, is that the purpose of requiring prejudice to the Crown is to

ensure that Crown immunity only operates to the Crown's advantage. It prevents third parties

from asserting the presumption of immunity against the Crown. Crown immunity cannot be

used by third parties to prevent the Crown from asserting a statutory right.

8. Access Copyright cites Alberta Government Telephones (which cites Professor Hogg),

which states: The presumption of immunity only applies when the statutory provisions, if

applied to the Crown, would operate to its prejudice.


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Alberta Government Telephones [1989] 2 S.C.R. 225, 1989 CANLii 78, at 64(citing Hogg, Liability of the Crown. Sydney: Law Book Co., 1971 at 181)


9. The existence of prejudice to the Crown, however, was not in issue in that case. In this

regard, Access Copyright has left out the preceding sentence in theAlberta Government

Telephones decision which puts this principle in context by noting that [a]t common law it is well-

established that, although not bound by a statute, the Crown may take advantage of its provisions

unless there is an express or implied prohibition from doing so. This is the meaning of the

requirement of prejudice to the Crown being requisite for a claim in support of Crown immunity.

Alberta Government Telephones at 64

10. Second, the prejudice to the Crown that engages Crown immunity must be specific to

the provisions of the statute that are invoked in a particular case. As in theAlberta GovernmentTelephones decision, the specific provisions of the Copyright Actfor which the Crown asserts

immunity would clearly prejudice the Crown if applied to the Crown. If Crown immunity was

found not to apply, and the obligations of the Copyright Actwerefound to apply to the Crown,

the Crown would be liable for payments and tariff terms for which it would not otherwise be

liable. Access Copyrights proposed tariff is an example of clear and specific prejudice to the

Crown that does indeed engage Crown immunity.

11. Third, every statute is created with the purpose of the overall good for society. This is

Parliament and the provincial and territorial legislatures primary mandate as public

governments. Access Copyrights overall benefit to society theory, besides being an affront to

common sense, would completely eviscerate the presumption of Crown immunity, as Crown

immunity would then never apply. As Professor Hogg has himself written:

The Privy Council in the Bombaycase also rejected the argument,which was supported by some dicta of Coke, that a statuteenacted "for the public good" must be held to bind the Crown,even in the absence of express words or necessary implication.

Their lordships pointed out that "every statute must be supposedto be 'for the public good', at least in intention." The beneficentpurpose of a statute was not by itself sufficient to rebut thepresumption that the Crown was not bound.

Hogg and Monahan, Liability of the Crown, 3rd ed., Carswell, 2000,(hereinafter Hogg) at 277-278, citing to Bombay[1947] AC 58 (PC, India)at 63


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12. There is no authority in law that prejudice to the Crown must be set off against the net

overall accrual of the benefit of a whole statute to the overall public good. Access Copyright

appears to be attempting to take a narrow limitation and then broaden it to apply to society as a

whole. With respect, this has long been rejected as a ridiculous proposition.

13. Furthermore, if the Crown were not prejudiced by the application of obligations under the

Copyright Actin this proceeding, the Consortium members would hardly have chosen to come

before the Copyright Board defending the presumption of Crown immunity. The imposition of

certified tariffs which are payable to Access Copyright by Consortium members clearly

constitutes a prejudice to the Crown.

Expropriation without compensation

14. Access Copyright also argues that Crown immunity is not engaged because of an

inappropriate analogy to a common law principle stating that, without clear statutory authority,

the expropriation of property must be compensated. This being said, it is unlikely that Access

Copyright puts much stock in its own argument, as it gives this broad principle short shrift in its

written submissions. More importantly, perhaps, the case law cited by Access Copyright does

not even stand for the broad proposition that Access Copyright attempts to make. In this

regard, expropriation is not a legal issue which is even remotely connected to the matter which

is currently before the Copyright Board with respect to the question of Crown immunity.

15. Expropriation is, of course, a concept that applies primarily to real property; in other

words, land. As Supreme Court Justice Iacobucci wrote in Osoyoos Indian Band v. Oliver

(Town), expropriation, by definition, is the forced taking of land without the consent of the

owner.

Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85, [2001] 3 SCR 746 atpara. 142 (emphasis added)

16. The common law principles surrounding expropriation have never been used to defeat a

claim of Crown immunity. The rule Access Copyright relies upon is not a recognized exceptionto the presumption of Crown immunity, nor has the rule ever been used to obligate the Crown to

make ongoing royalty payments under a tariff.

17. In its written argument, Access Copyright cites as authority the Supreme Court decision

ofAuthorson (Litigation Guardian of) v. Canada (Attorney General). This decision held that the


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Bill of Rights, S.C. 1960, c. 44does not protect against expropriation without just compensation.

However, the Court took a very narrow interpretation of the common law principle which Access

Copyright is now relying upon. As Major, J. wrote in that decision:

The respondent claimed a rightbased on a broad conception of the rule of lawagainst the expropriation of property (or against expropriation without justcompensation). Does the due process guarantee of the Bill of Rights confersubstantive protections in this regard?

[heading omitted]

Canadian courts have been wary of recognizing such protections, in part perhapsbecause of the American experience with the substantive due processenforcement of property and contract rights.

Authorson (Litigation Guardian of) v. Canada (Attorney General) 2003 SCC

39 at paras. 47 and 48

18. In the Supreme Court decision ofManitoba Fisheries Ltd. v. The Queen, the Court was

explicit that there had to be a taking of a property right by the Crown. Simply put, the owner of

property must be deprived of a right in that property. Here, however, no right to compensation

is being taken away from copyright holders if the Crown is held to be immune; their statutory

rights simply never extended to the Crown in matters such as this one. There can be no

taking of what never existed.

Manitoba Fisheries Ltd. v. The Queen, [1979] 1 S.C.R. 101 at 110 to 113

19. The Copyright Actis exhaustive with regards to the rights of copyright holders. If the

Crown is immune to the Copyright Actin relation to this tariff proceeding, there are, ergo, no

rights in the first place which can be taken away by the Crown.

20. Additionally, and a fortiori, there are no rights in property that could be taken at all under

the Copyright Act, as the Copyright Actdoes not provide rights in property. Although copyright

is often broadly categorized with trademark and patent law under the term intellectual property,

copyright is a sui generis statutory right which has many key differences from property law.Notably, in this proceeding, nothing is being taken away from copyright holders, nor are

copyright holders being deprived of property in any way. As Estey J. wrote:

Mr. Hughes for the respondent in answer to a question from the Bench put it verywell when he said that copyright law is neither tort law nor property law in classifi-cation, but is statutory law. It neither cuts across existing rights in property or


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conduct nor falls between rights and obligations heretofore existing in thecommon law. Copyright legislation simply creates rights and obligations uponthe terms and in the circumstances set out in the statute.

Compo Co. Ltd. v. Blue Crest Music et al., [1980] 1 SCR 357 at 372

21. Finally, the source of the rule regarding expropriation is the common law. Common law

rules cannot overcome clear statutory language. As such, the completely unrelated and

subordinate common law rule regarding expropriation of property that Access Copyright asserts

in its Factum simply cannot overcome the clear language and intent of section 17 of the

Interpretation Act.

Interpretation Act, RSC 1985, c I-21, s. 17

Standing, the Government of Nunavut, and Crown immunity

22. Access Copyright argues in its Factum that the territories have no standing to assert

Crown immunity because they have no separate constitutional status from the Crown in right of

Canada.

Access Copyright Factum at paras. 20-22

23. As the Board is aware, Yukon and the Northwest Territories are not asserting Crown

immunity in this proceeding, so the following arguments will only address the status of Nunavut.

24. First, no issue of standing is raised by Nunavuts assertion of Crown immunity in this

proceeding. Nunavut, as an Objector to Access Copyrights proposed tariff, is a proper party to

this proceeding. The presumption of Crown immunity applies regardless of who may assert it.

No reference need be made to the actions of the federal government in order for any territory to

assert Crown immunity.

25. For example, in Robb v. Yukon Territory (Government of), a decision of the Yukon

Territory Court of Appeal, the government of Yukon successfully asserted Crown immunity

without any reference to activities of the federal government. Yukon was found to enjoy

immunity from both the prejudgment interest provision of the Yukon Judicature Actand the

prejudgment interest provision of the Federal Interest Actdue to the effect of the presumptions

of Crown immunity codified in the Yukon and Federal Interpretation Acts, respectively.

Robb v. Yukon Territory (Government of) (Y.T.C.A.), [1987] Y.J. No. 7 (QL) at3


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Judicature Act, R.S.Y.T. 1971, c. J-1, s. 11; Interpretation Act, R.S.Y.T. 1971,c. I-3, s. 12; Interpretation Act, R.S.C. 1970, c. I-23, s. 16; Interest Act, R.S.C.1970, c. I-18, s. 3

26. At no point in the Yukon Territory Court of Appeals discussion of immunity is the issue

of standing ever mentioned. Nor is there any reference in the decision to the activities of the

federal government. It appears that those factors were simply not relevant.

27. The fact that the territories are not mentioned in theAlberta Government Telephones

decision, as Access Copyright argues at paragraph 21 of its Factum, does not mean that

section 17 of the Interpretation Actcannot apply to the benefit of the territories, as well as the

provinces. The immunity of a territory was not at issue in that case and the Supreme Court

consequently had no reason to discuss it.

28. Second, Access Copyrights assertion that Nunavut has no separate constitutional statusof its own is not accurate. Access Copyrights argument appears to rely heavily on the fact that

Nunavut was created by a federal enactment. This argument fails to acknowledge that the

territory of Nunavut was created by the comprehensive Nunavut Land Claims Agreement

among Canada, Northwest Territories and the Inuit of the Eastern Arctic as represented by the

Inuit Tunngavik (NTI).

Nunavut Land Claims Agreement(hereinafter NLCA)

29. The NLCA is a quasi-constitutional document because it is protected by section 35 of the

Constitution Act, 1982. Article 2.2.1 states specifically that The agreement shall be a land

claims agreement within the meaning of section 35 of the Constitution Act, 1982. In 1993, the

NLCA was given legal force and effect by the Nunavut Land Claims Agreement Act.

Constitution Act, 1982, s. 35

NCLA, Art. 2.2.1

Nunavut Land Claims Agreement Act, S.C. 1993, c. 29

30. Parliament was bound by the NLCA, and thus by the Constitution, to enact the NunavutAct. Article 4 of the NLCA required the Government of Canada to create Nunavut and its public

government by way of legislation. Nunavut is therefore not impeded from alerting the Board to

the presumption of Crown immunity and can benefit from the presumption in the same manner

as the provincial Consortium members.

NCLA, Art. 4


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III. Did Parliament intend the Crown to be bound by necessary implication?

31. The Consortium members submit that Access Copyright has not rebutted the

presumption of Crown immunity from the Copyright Actby showing that there is a necessary

implication from the text of theActthat Parliament intended the Crown to be bound by it. TheConsortium members submit the following arguments in support of their position.

The necessary implication exception must be applied strictly

32. As the Supreme Court explained inAlberta Government Telephones, endorsing the

decision of the Privy Council in the leading case ofBombay, the test for finding a legislative

intention to bind the Crown is strict and narrowly confined.

[] the strict test for finding a legislative intention to bind theCrown.


The Privy Council made clear that any exception to the normalCrown immunity rule based on a necessary implication should benarrowly confined. As a result, an intention to bind the Crown isnot to be inferred merely from the fact that the provisions of astatute will not operate smoothly or efficiently if the Crown is notbound, nor from the fact that if the Crown is not bound the statutewill have only a limited application.


Province of Bombay v. Municipal Corporation of Bombay, [1947] A.C. 58

33. The reason for the strictness of this test is that Parliament has already explicitly directed

in section 17 of the Interpretation Actthat the Crown is not bound except as mentioned or

referred to in the enactment. Any necessary implication must fit within this language. As

explained by Professor Sullivan in Sullivan on the Construction of Statutes under the heading

Rebutting the presumption, [w]hat the Interpretation Acts require is a clear expression of

legislative intent. Professor Hogg explains that to satisfy the requirements of the statute, this

expression of intent must be clear beyond doubt.

Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed.,Butterworths Canada, 2002 (hereinafter Sullivan), at 605


Hoggat 275


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34. It is worth noting that the words mentioned or referred to do not merely mean that any

mention of the Crown is sufficient. The statute must have mentioned or referred to Her

Majesty as being bound.

Interpretation Act, s. 17

Alberta Government Telephones at 61 (emphasis added)

35. The necessary implication exception requires that the conclusion that Parliament

intended the Crown to be bound be inescapablethat the conclusion must be made. Access

Copyright therefore clearly bears the onus of showing a clear expression of legislative intent that

the Copyright Actbinds the Crown. The Consortium members submit that it has not done so.

R v.Ouellette, [1980] 1 S.C.R. 568 at 575 (it is possible that Her Majesty beimplicitly bound by legislation if that is the interpretation which the legisla-

tion must be given when it is placed in its context. [emphasis added])

The flexible Australian approach to the necessary implication exception

36. Prior to a discussion as to why Access Copyright has not shown that the Crown is bound

by necessary implication, it should be noted that Access Copyrights argument hinges on its

claim that the Copyright Board should change the necessary implication exception by replacing

the Canadian courts strict approach to applying the necessary implication exception with the

contextual and flexible approach used in the Australian High Court decision Bropho v.

Western Australia.

Bropho v. Western Australia [1990] HCA 24; 1990 171 C.L.R. 1 (hereinafterBropho)


37. The Consortium submits that it would be inappropriate for the Board to accept Access

Copyrights submission for several reasons. The most important reason is that the law of Crown

immunity is significantly different in Australia. Prior to the Bropho decision, the presumption of

Crown immunity in Australia actually granted the Crown a much broader immunity than that

enjoyed by the Crown in Canada. This is because in Australia, not only was the Crown

presumed not to be bound by its own laws, but as Professor Hogg explains in Constitutional

Law of Canada, it has also been recognized that the essential functions of provincial

governments are immune from federal laws.

Hogg, Constitutional Law of Canada, 5th Edition at 10-23


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38. The Bropho decision significantly weakened the presumption of Crown immunity in

Australia, but it did so against a backdrop of much more significant government privilege than

that enjoyed by Canadian governments.

Hogg at 289, fn 81 (significantly weakened)

39. The Supreme Court of Canada would have been aware of the Bropho case in 1992

when it decided Oldman River, and did not follow it. Indeed, the UK and New Zealand courts

have also refused to adopt the Australian High Courts new and extraordinary approach.

Oldman River

Hogg at 283

40. If the Board were to adopt the expanded, flexible necessary implication test proposed

by Access Copyright outside of the context of the Australian law of Crown immunity, the result

would be that Canadian Crown immunity would be severely limitedmuch more limited than it

is in Australia. The necessary implication exception would apply in exactly the way former Chief

Justice Dickson warned against: it would swallow the rule of Crown immunity.


The Copyright Actand a clear expression of legislative intent that the Crown be bound

41. In this case, the Consortium members submit that Access Copyright has not met itsonus to prove that it is clear beyond doubt that the Copyright Actbinds the Crown by

necessary implication, through a clear expression of legislative intent.

Sullivan at 605, referring toAlberta Government Telephones at 63 (clearexpression of legislative intent)

Hogg at 275 (clear beyond doubt)

42. As proof that Parliament intended that the Crown be bound by the Copyright Act, Access

Copyright refers at paragraphs 56 to 68 of its Factum to exemptions under theActthat it saysrefer to the Crown. It argues that because the Crown is exempted, under the contextual

interpretation established by the Australian High Court in Bropho, there is a logical implication

that the Crown was intended to be bound by the remainder of the Copyright Act:

These exemptions evidence a clear intention that the Act, subjectto these exemptions, applies to the Crown; the maxim expressio


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unius est exclusio alterius directs that the [Copyright] Act be sointerpreted.

Access Copyright Factum at paras. 53 and 56-68

43. In Professor Hoggs text, Liability of the Crown, he explains that the courts have been

reluctant to find that the Crown was bound based on this argument:

The argument made most commonly was based on the maximexpressio unius est exclusio alterius. This argument applies to astatute that contains a provision exempting the Crown from someof its provisions and is silent as to whether the rest of the statutebinds the Crown. The argument is that the exempting sectionraises a logical implication that the Crown is bound by thoseprovisions from which it has not been exempted; if this were notso, so the argument runs, there would be no need for theexempting section. This argument has generally not been

accepted by the Courts, who have tended to treat the exemptionas having been inserted only out of an abundance of caution. It iseasy to accept this reasoning. Since expressio unius is a weakinference at the best of times, it cannot overcome the presumptionthat the Crown is not bound.

Hogg at 289

See also Province of Bombayat 65; CBC v. A-G, Ont. [1959] S.C.R. 188 at199; Lord Advocate v. Dumbarton D.C. [1990] 2 A.C. 580 at 600;AlbertaGovernment Telephones at 62; IBEW v. Alberta Government Telephones[1989] 2 S.C.R. 318 at 329

44. The text, Government Liability Law and Practice, also states that [t]he Crown will not be

bound as a result of the application of a rule of construction like expressio unius est exclusio

alterius.

Horseman and Morley, Government Liability Law and Practice, ThomsonReuters, at 1-26.1

45. The principle that exemptions of the Crown in certain provisions of a statute are not

evidence of a clear intention that the Crown be bound was made clear by the Supreme Court in

Alberta Government Telephones. In that case, an exemption of Government railways in the

Railway Act, R.S.C. 1970, c. R-2 was found not to be a sufficiently clear reference to any

Parliamentary intention to bind the Crown because there were several equally plausible

explanations for the exemption. An exemption which could equally have been inserted because

Crown liability was not contemplated or because Crown liability was intended is not a clear

expression of intention that the Crown should be bound.


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[W]hether the exemption of Government railways from s. 5 existsout of an abundance of caution as Pratte J. held for the FederalCourt of Appeal, as a matter of historical antecedent as held byReed J. at trial, or otherwise, it does not provide a sufficiently clearreference to any Parliamentary intention to bind the Crown withinthe meaning of the general word person in s. 5. The fact that

both of the explanations offered by Pratte J. and Reed J. areequally plausible is evidence enough of a failure to convey anintention to bind the Crown.

[]

The exemption of Government railways is as consistent with acomplete absence of contemplation of whether Governmenttelecommunications carriers are bound as it is with an intentionthat they be bound. To hold that this exception is sufficient to bindthe Crown would be to do so in the face of a considerable doubt,inconsistent with a clear expression of intention.

Alberta Government Telephones at 62-63

46. The situation is the same in this case. Access Copyright has listed several exemptions

in the Copyright Actwhich could apply to exempt Crown agents. However, these exemptions at

best create a weak inference that the Crown was intended to be boundwhich the Supreme

Court has decided is not a clear expression of intention.

47. It would be just as reasonable to assume that the exemptions were placed in the

Copyright Actout of an abundance of caution. Also, with the exception of the exemption for

Archives Canada in section 30.5 of theAct, the exemptions listed would not protect only Crown

agents. The exemption for performing statutory obligations and the exemption from the

importation sanction would protect any person who does the exempted activities. Indeed, the

exemption from the importation sanction exempts a person who imports copies of a work for use

by a Crown. It does not actually exempt use by a Crown. Similarly, the exemptions for

educational institutions are also designed to protect private personsa person acting under [an

institutions] authorityfrom being found to have infringed the Copyright Act.

Copyright Act, ss. 32.1(1), para. 45(1)(b)

Copyright Act, ss. 29.4, 29.5, 29.6

48. Finally, just as the exemption of government railways from the Railway Actwithout

creating a necessary implication that Parliament intended the Crown to be bound, the

exemption in section 30.5 of the CopyrightAct for Archives Canada was likely inserted out of an


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abundance of caution. Regardless of the presumption of Crown immunity, Parliament likely saw

value in preventing needless and expensive litigation, or the proposal of a copying tariff,

regarding Archives Canadas activities.

Copyright Act, s. 30.5

Alberta Government Telephones at 62-63

49. Any implication arising from these exceptions that Parliament contemplated that the

Crown would be bound by the entire CopyrightActis a weak inference at best and falls far short

of the exceptions requirement that the implication be clear beyond doubt. There is significant

doubt here.

Hogg at 275

50. There is a much clearer implication in the text of the Copyright Actthat Parliament did

not intend the Crown to be bound. The only times the Crown is mentioned in theActare the

times when Parliament has explicitly exempted it. Parliament could just as easily have stated

that the Crown is boundfor example, in the opening words of section 12 of theAct. Instead, it

did the opposite, and explicitly preserved the rights and privileges of the Crown.

51. The presumption of the perfection of statutes is relevant here. As Professor Sullivan

explains, [l]egislation is presumed to be accurate and well-drafted; it is presumed that the

legislature does not make slips of the pen.

Sullivan at 129

52. Estey, J. explained the presumption of perfection as follows:

[] the Legislature is guided and assisted by a well-staffed andordinarily very articulate Executive. The resources at hand in thepreparation and enactment of legislation are such that a courtmust be slow to presume oversight or inarticulate intentions. []The Legislature has complete control of the process of legislation,

and when it has not for any reason clearly expressed itself, it hasall the resources available to correct that inadequacy ofexpression. This is more true today than ever before in our historyof parliamentary rule.

Morguard Properties Ltd. v. City of Winnipeg, [1983] 2 SCR 493 at 509


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53. The CopyrightActis presumed perfect, and Parliament is presumed to have the power

to correct any inadequacy of expression. Section 17 of the Interpretation Actexplicitly says

that the Crown is presumed not to be bound, and section 12 of the Copyright Actexplicitly

preserves the rights of the Crown. The result is that the presumption that the Crown is immune

from the Copyright Actis very strong.

54. Finally, it is worth noting that, in Eros-quipe, and contrary to Access Copyrights

submission, Justice Tremblay-Lamer did undertake an analysis of whether the Crown was

bound by the Copyright Actby implication of the words of theAct. While her analysis was not

detailed, she did conclude that, because the words of section 12 expressly preserve the

Crowns rights and privileges, the Crown is not bound by implication. The following is her entire

analysis:

In the case at bar, the Act does not state that it applies to theCrown. This silence accordingly makes it necessary to analyse theprovisions of the Act to determine whether the Crown can still bemade subject to the Act by implication.

Eros alleged that section 12 of the Act is an indication that the Actis applicable to the Crown. I am not of this view. Section 12expressly mentions that it is applicable without prejudice to anyrights or privileges of the Crown:

[text of section 12]

In his text Fox's Canadian Law of Copyright and IndustrialDesigns, 3d ed., Toronto, Carswell, 2000 (Fox), at p. 355, John S.McKeown states that the Crown can exercise the rights conferredin section 12 of the Act without this eliminating its immunity.

Eros -quipe de Recherche Oprationnelle en Sant Inc. v. Conseillers enGestion et Informatique C.G.I. Inc., 2004 FC 178 (CanLII) (hereinafter Eros

quipe) (emphasis added) at paras. 58-60

55. Indeed, since section 12 of the Copyright Actexpressly states that it does not limit the

Crowns rights, it is logical to conclude that any other provisions that mention the Crown do not

limit the Crowns rights either. If those provisions made the Crown bound by theAct, it would beillogical for section 12 to preserve the Crowns immunity.


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International treaties and the necessary implication test

56. In its Factum, Access Copyright lists several international agreements to which Canada

is a signatory and claims that their content creates a necessary implication that Parliament

intended the Crown to be bound by the Copyright Act. This is incorrect, for two reasons.

57. First, even if those treaties did require the Crown to be bound by the Copyright Act, and

they do not, the fact that treaties may be considered in statutory interpretation does not mean

that they can replace the plain and explicit words of section 17 of the Interpretation Act.

[I]f a statute is unambiguous, its provisions must be followed evenif they are contrary to international law [Where] the intent ofParliament was clear and unmistakable the plain words of astatute could not be disregarded in order to observe the comity ofnations and the established rules of international law.

Daniels v. White and the Queen, [1968] SCR 517 at 541; quoted withapproval in Schreiber v. Canada (Attorney General), [2002] SCC 62 at para.50, and in Sullivan at 429

58. Second, none of the treaties Access Copyright claims bind the Crown to the Copyright

Actactually do so. Article 1701 of the North American Free Trade Agreement(hereinafter

NAFTA), which Access Copyright cites at paragraph 92 of its Factum, requires parties to enact

laws that provide adequate and effective protection and enforcement of intellectual property

rights. Those words cannot be read as a requirement that copyright laws must bind the Crown.

The Copyright Actcan hardly be described as inadequate and ineffective merely because itdoes not apply to the Crown.

NAFTA, Art. 1701

59. Article 105 of NAFTA, also cited by Access Copyright at paragraph 92 of its Factum,

requires signatories to ensure that their state and provincial governments enact laws that give

effect to that requirement, not for their governments themselves to be bound. That is plain from

the wording of the provision.

NAFTA, Art. 105

60. TheAgreement on Trade-Related Aspects of Intellectual Property Rights(hereinafter

TRIPs) cited by Access Copyright at paragraph 95 of its Factum, requires signatories to

adhere to the Berne Convention, which requires laws ensuring that copyright subsists and

prescribes substantive protections for copyright works. These requirements have clearly


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already been fulfilled by Canadas Copyright Actand the subsistence and protection of copyright

among the private parties to whom theActis directed is not contradicted by the Crowns

immunity from theAct.

61. Access Copyright also claims that Article 48 of TRIPs limits immunity of publicauthorities and officials from intellectual property laws. Yet it is plain from the wording of the

provision that it applies to the enforcement of intellectual property laws, not the laws

themselves. The liability is to appropriate remedial measures.

48(2): In respect of the administration of any law pertaining to theprotection or enforcement of intellectual property rights, membersshall only exempt both public authorities and officials [] in thecourse of the administration of that law.

TRIPs, Art. 48(2)

62. Finally, Access Copyright claims in paragraph 90 of its Factum that Article 46 of the

Vienna Convention on the Law of Treaties says that a state may not plead its internal

constitution as an excuse to evade its international obligations. With respect to Access

Copyright, this is, frankly, a mischaracterization of the rule. In this regard, the rule reads as

follows:

Article 46: Provisions of internal law regarding competence toconclude treaties

46(1): A State may not invoke the fact that its consent to be boundby a treaty has been expressed in violation of a provision of itsinternal law regarding competence to conclude treaties asinvalidating its consent unless that violation was manifest andconcerned a rule of its internal law of fundamental importance.

Vienna Convention on the Law of Treaties, Art. 46(1)

63. As such, the rule prevents a state from claiming that one of its laws removes its capacity

to enter into treaties (invalidating its consent). That is clearly not the case here. Article 46(1)

does not mean, as Access Copyrights argument would require, that a states laws are

subordinate to the provisions of treaties to which it is a signatory. The above treaty provisions

therefore create no necessary implication in the Copyright Actthat Parliament intended the

Crown to be bound.


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Would the purpose of the Act be wholly frustrated if the Crown were not bound?

64. To rebut the presumption of Crown immunity by showing that a statute would be wholly

frustrated if the Crown were not bound, it must be shown that an absurdity (as opposed to

simply an undesirable result) would be the consequence of the Crowns immunity. AccessCopyright argues that because the Copyright Actis an exhaustive regime, if it did not apply to

the Crown, it would no longer be exhaustive and its purpose would thus be wholly frustrated.



65. The Consortium members submit that Access Copyrights argument is based on a

misunderstanding of the exhaustiveness of the Copyright Act. TheActis exhaustive because

it is the only way private parties can gain copyrightstheir rights to exclude others from

engaging in certain activities with their works. As the Supreme Court of Canada stated in CCH

Canadian Ltd. v. Law Society of Upper Canada, copyright is a creature of statute and the rights

and remedies provided by theActare exhaustive.

CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 atpara. 9

66. For example, one of these rights is the sole right of reproductionthe right held by its

owner which enables that owner to exclude others from reproducing a work. The Copyright Actdoes not, however, contain an exhaustive list of ways in which a work can be used. For

example, while performance of a work in public is a protected right under theAct, anyone may

perform a song in private because theActdoes not give its author the right to exclude him (or

her) from doing so.

67. The Copyright Actis not an exhaustive code vis--vis all possible legal uses of the works

in which it grants rights. There are many legal uses for which no permission is needed that the

Actdoes not address. One category of such uses is use by the Crown, in situations where the

Crown is immune from theAct. Just as the ability to perform a song in private does not affect

the scheme of theAct, similarly, the Crowns ability to copy a published literary work does not.

68. Moreover, it would not make sense to ignore the words of the Copyright Actwhen

arguing that the Crowns immunity is pre-empted by the fact that theActis an exhaustive


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code. Section 12 of theActitself provides for the Crowns rights and privileges, which include

both Crown copyright and Crown immunity from statutes.

69. As the Supreme Court explained inAlberta Government Telephones, if theActcan

continue to function despite a gap in potential coverage caused by Crown immunity, then itwill not be wholly frustrated:

The fact that granting immunity will produce a regulatory vacuumwith respect to AGT is insufficient and does not amount to afrustration of the Railway Actas a whole. While granting immunityunless and until Parliament chooses to amend the legislation willproduce a gap in potential coverage of the Railway Act, theActcan continue to function just as it did prior to this Court's findingthat AGT is a federal undertaking.


70. In this case, even though the Crown is immune, the Copyright Actwill continue to

regulate the relationships amongst the private parties toward whose conduct it is directed.

Private parties would continue to be free to enter into agreements with governments for those

governments access to, or gaining of exclusive rights to, copyright works.

71. This situation in this case is much different from those ofFriends of the Oldman River

Society v. Canada (Minister of Transport) and R. v. Greeningbecause in those cases, the

statutes at issue would simply not work at all if they did not apply to the Crown. For example,

with respect to the Navigable Waters Protection Actin Oldman River, the Supreme Court noted

that the provinces themselves were one of the major groups whose activities could affect

navigable waters. If a provinces activities obstructed a navigable waterway, the federal

statutes objective would be completely thwarted because there would be no more navigable

water to protect.

Friends of the Oldman River Society v. Canada (Minister of Transport),[1992] 1 SCR 3, 1992 CanLII 110 (SCC)(hereinafterOldman River)at p. 8(likely to engage)

R. v. Greening, 1997 CanLII 14626 (NL CA)

72. Furthermore, in that case, if the Navigable Waters Protection Acthad not applied to the

Crown, there would have been no legal way for the provincial governments to engage in

projects that would interfere with navigation. The Supreme Court explained the particular

circumstances which led it to the conclusion that the purpose of the Navigable Waters


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Protection Actwould be wholly frustrated if the Crown in right of the provinces were not bound

by it.

73. First, the Crown in right of a province was not entitled to interfere with the publics

common law right of navigation without legislative authorization. Second, only Parliament,vested with exclusive jurisdiction over navigation and shipping, could grant legislative

permission. Third, the Navigable Waters Protection Actwas the only legislation through which

that permission could have been granted. Therefore, the only way the provinces could have

engaged in projects interfering with navigation without violating the common law right of public

navigation was through the Navigable Waters Protection Act.

Oldman Riverat p. 60

Sullivan at 607

74. By contrast, the situation in this case is more analogous to the situation inAlberta

Government Telephones. The Crown does not require the regulation of the Copyright Actto

gain permission to make copies because copies made by the Crown do not violate the common

law. The Crowns relationship to the Copyright Actis simply a regulatory vacuum.


75. In R. v. Greening, the issue was public safety. As noted in that decision:

The orderly and safe circulation of traffic depends on the rules ofthe road being applicable to all users of the road. A departure fromthose rules would endanger not only the offender but any memberof the public, whether in a motor vehicle or not, who had themisfortune to be in the [vicinity] of the offence.

R. v. Greeningat para. 93

76. In other words, unless everyone followed the rules of the road, the statutes public safety

goal could not be achieved. If the Crown was not bound, the Highway Traffic Actsimply could

not work. The situation with the Copyright Actis simply not the same. Even though it is notbinding on the Crown, copyright holders can still assert their rights in their works against others.

The system can function perfectly well amongst the private parties toward whom theActis

directed.


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77. At most, perhaps the value of Canadian copyrights on the whole is slightly diminished

because of the absence of the Crown as a market for non-exclusive rights. But even if Access

Copyright had demonstrated that, such a small reduction would in no way amount to a whole

frustration of the Acts purpose.

78. Finally, Access Copyrights rather ridiculous scenario, described at paragraph 52 of its

Factum, in which the Crowns immunity could be used by the Crown to pirate copyright works

does not make that immunity an absurdity. If the governments were to become large-scale

copyright pirates, a situation which would clearly never arise, it may be an undesirable result,

but certainly not an absurdity. It would remain open to Parliament to remedy such an

"undesirable result" by amending the Copyright Actto provide that the Crown is bound by the

Act.


The Crowns conduct cannot change the law

79. In its submission, Access Copyright lists several instances in which governments have

been defendants in copyright infringement lawsuits without having asserted Crown immunity. It

also asserts that the Crown (meaning, a procurement contracting specialist for the regional

supply depot of the Correctional Service of Canada, a prison warden, and the Treasury Board

Secretariat Canada) has operated on the presumption that it should respect the copyrights of

others. These instances are completely irrelevant to the determination of whether Parliament

drafted theActwith the intention that it would bind the Crown.

Access Copyright Factum at paras. 71-72 and 78

80. The policies of Consortium members that say that the members respect copyright or

intellectual property laws, or that require employees to obtain permissions to use copyright

works have the same (lack of) effect. Even if those policies contained acknowledgements that

the members are bound by the CopyrightActand they do notthe text of theActand of the

Interpretation Actwould be the same. These policies cannot change those statutes and they

are not an indication of Parliaments intention.

81. The various agreements that have been entered into by Consortium members, that

have, at least in part, granted them the right to use copyright works such as software, similarly

cannot change the law. It is simply irrelevant to the task of statutory interpretation whether


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various Crowns or Crown agents have entered into licence agreements. Entering into an

agreement to purchase software and technical support for that software is nearly always part of

the software installation process and is near-impossible to avoid. The only way to gain access

to certain literary databases is by entering into a licence agreement as a purely contractual

matter. That does not mean that these agreements have the power to change the words of the

Interpretation Actand the Copyright Act.

IV. The Benefit/Burden Exception to the Presumption of Crown Immunity

82. Access Copyright, in its arguments related to the benefit/burden exception to Crown

immunity, seems to have confused the basic principles of the exception. Indeed, Access

Copyright cannot seem to keep straight which alleged benefit it thinks is linked to the liability to

pay Access Copyright under a copying tariff.

83. Access Copyright does not make any meaningful attempt at drawing the close nexus

between a benefit and a burden as is required by the common law benefit/burden exception.

Rather, Access simply lists everything that it considers a Crown benefit of the Copyright Actto

claim that somehow, added together or overall, they would mean the doctrine of Crown

immunityhas generally been waived by virtue of the Crowns commonplace conduct.


84. The strategic reasoning behind such confusion is clear. Access Copyright appears to be

attempting to obfuscate the close nexus between the benefit and burden required by this narrow

exception to the presumption of Crown immunity. In this regard, Access Copyright states that

the Crown cannot seek the benefits of the [Copyright]Actbut avoid the restrictions attendant to

the statute (emphasis added). This epitomizes Access Copyrights fundamental

misunderstanding of the benefit/burden exception. The restrictions must be burdens attendant

to the benefit, not the statute. This misunderstanding bears restating Sparling:

Application of the benefit/burden exception does not result insubsuming the Crown under any and every regulatory schemethat happens to govern a particular state of affairsThe exceptionis not of such broad reach. Its application depends not upon theexistence or breadth of a statutory scheme regulating an area ofcommerce or other activity, but, as noted earlier, upon therelationship or nexus between the benefit sought to be taken froma statutory or regulatory provision and the burdens attendant upon


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that benefit. The focus is not on the source of the rights andobligations but on their content, their interrelationship.

Sparling v. Qubec (Caisse de dpt et placement du Qubec), [1988] 2S.C.R. 1015 (hereinafter Sparling) at para. 29


85. For the sake of clarity, the reply to these arguments will be divided into the two benefits

that Access Copyright has claimed the Consortium members enjoythe assertion of Crown

copyright and the licensing contracts to which the provinces and territories have voluntarily

agreed. Access Copyrights argument regarding limited waiver will also be addressed.

Assertion of Crown Copyright

86. Access Copyright submits that since the provinces and territories have asserted their

own copyright, that the benefit/burden exception to Crown immunity would entail some sort of

reciprocal recognition of the assertion of copyright by others. However, this not only ignores the

clear language of section 12 of the Copyright Act, it is also a clear misinterpretation of the

purpose of the benefit/burden exception.


(i) Section 12 of the Copyright Act

Section 12 of the Copyright Actreads:

Without prejudice to any rights or privileges of the Crown, where any workis, or has been, prepared or published by or under the direction or controlof Her Majesty or any government department, the copyright in the workshall, subject to any agreement with the author, belong to Her Majestyand in that case shall continue for the remainder of the calendar year ofthe first publication of the work and for a period of fifty years following theend of that calendar year.

Copyright Act, s. 12

87. Access Copyrights interpretation of section 12 of the Copyright Actis that the wordswithout prejudice to any rights or privileges of the Crown refer only to the one historic right of

the Crown to be the sole publisher of its own works. However, there is no case law that

interprets section 12 in this narrow way; Access Copyright cites only the brief interpretation

offered by Professor David Vaver.


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88. Access Copyright correctly cites Rizzo & Rizzo Shoes Ltd. as an authority in statutory

interpretation, although it plainly contradicts Access Copyrights position with respect to section

12.

Today there is only one principle or approach, namely, the wordsof an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme ofthe Act, the object of the Act, and the intention of Parliament.

Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21 citing with approvalDriedger, Construction of Statutes, 2nd ed., 1983 at 87

89. The federal Interpretation Actalso provides that every enactment is deemed remedial,

and shall be given such fair, large and liberal construction and interpretation as best ensures the

attainment of its objects (emphasis added).


90. The clear intention of Parliament in drafting the language of section 12 was that the

Crown could assert copyright without prejudice to any rights or privileges of the Crown

(emphasis added). The grammatical and ordinary meaning of these words is as clear and plain

as the language could reasonably be.

91. If Parliament had intended this to be limited to one historic right of publication, it couldhave easily chosen wording to that effect. Conversely, these are exactly the words one would

expect to see if Parliament had intended section 12 to allow the Crown to assert copyright

without prejudice to any of its rights or privileges. Access Copyrights interpretation is not, in

any sense, fair, large and liberal.

Copyright Act, s. 12


92. Access Copyright suggests that this interpretation would mean that the Crown wouldenjoy numerous immunities and privilegeswhich Access Copyright lists, but does not either

qualify or explainin any case for copyright infringement. This is incorrect. Section 12 only

confers these rights and privileges in respect of the grant of Crown copyright. That is to say,

section 12 holds, inter alia, that the mere grant of Crown copyright does not waive the rights and

privileges of the Crown.


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93. In Eros-quipe, the Crown was found to have waived its immunity in respect of a piece

of software by virtue of an exclusive license agreement with the software provider, and was

therefore found liable for copyright infringement. It was not the Crowns assertion of copyright

which was at issue in the benefit/burden analysis, and section 12 was therefore not engaged. In

fact, the Federal Court expressly found in Eros-quipe that Crown immunity was not prejudiced

by section 12 of the Copyright Act.

Eros alleged that section 12 of the [Copyright]Actis an indicationthat theActis applicable to the Crown. I am not of this view.Section 12 expressly mentions that it is applicable withoutprejudice to any rights or privileges of the Crown.

Eros-quipe at para. 59

(ii) The attendant burden to the Crowns assertion of copyright

94. Even if, arguendo, section 12 did not operate to protect the Crowns rights and privileges

when it asserts copyright over the works it produces, the benefit/burden exception does not

entail some sort of reciprocal recognition of the panoply of rights of others in copyright works

under the Copyright Act.

95. The benefit/burden exception to Crown immunity operates so that the Crown cannot

make use of a statutory right without the limitations to that right. That is to say, the Crown

cannot take a greater right than a statute confers. In this regard, Sparlingstates:

It was only by seeking the benefits of the statute by purchasingshares that the Caisse chose to bring itself within the purview ofthe law relating to shareholders. In the words of Professor Hogg,op. cit., at p. 183, "when the Crown claims a statutory right theCrown must take it as the statute gives it, that is, subject to anyrestrictions upon it." Otherwise, the Crown would receive a "largerright than the statute actually conferred" (p. 183).

Sparlingat para. 28 (citing Hogg, Liability of the Crown in Australia, NewZealand and the United Kingdom. Australia: Law Book Co., 1971 at 183)

96. InAlberta Government Telephones, the Supreme Court found that the Crown did not

waive its immunity to the general authority of the Railway Actdespite having gained certain

advantages from thatAct.

The benefits derived under the Railway Actby AGT are of ageneral nature resulting from its participation in the TCTSagreements. This is not a case where AGT relies or has relied on


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the Railway Actfor certain advantages and then argues thatlimitations placed upon those advantages by the legislation do notapply to the Crown. As stated above, at common law the Crowncan gain advantages from a statute without necessarily waiving itsimmunity therefrom. Waiver only occurs where the Crown takesthe benefit of a statute divorced from its enumerated restrictions.

(emphasis added)


97. There is no enumerated restriction on the right to assert copyright stating that you must

recognize the copyright of others. Indeed, infringing the copyright of others has no bearing

whatsoever on ones own assertion of copyright.

98. In Sparling, the Crown could not gain greater rights than a shareholder would normally

have in purchasing a share. The limitations on share ownership defined what a share is and the

right to own a share. This is not remotely analogous to the assertion of copyright, which is not

in any way defined by the recognition of others rights under the Copyright Act. Access

Copyright is making a very confusing assertion by trying to link these two concepts under the

relatively narrow benefit/burden exception.

99. The restrictions on asserting copyright are the scope of rights given to copyright owners

as defined in the Copyright Act. If one were to disregard section 12 for the sake of argument,

the burdens attendant on the Crown assertion of copyright would be the term limits and the

exceptions, such as fair dealing, to those rights. In other words, the Crown could not take justthe right to bring a suit for copyright infringement without recognizing the exceptions to copyright

infringement, for this would exceed the rights given to bring such a suit under the Copyright Act.

100. The benefit/burden exception does not operate as some sort of doctrine of give-and-take

fairness. It is a logical principle that operates to keep the Crown from inventing new rights by

ignoring the portions of a statute that define a rights limitations. Recognition of anothers rights

under the Copyright Actdoes not define the assertion of copyright. The obligation to respect the

copyright of others generally is not, in any logical way, linked under the benefit/burden exception

to the right to assert copyright for oneself.

Provincial and Territorial Licensing Agreements

101. Access Copyright also argues, apparently interchangeably, that the benefit which would

waive Crown immunity is the fact that the provinces and territories have previously entered into


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agreements to use the works of others and to allow others to use their works. In its Factum,

Access asserts that [o]utside the [Copyright]Act, no one has the right to use works protected

by copyright. If the Crown chooses to use copyrighted works, it must be using them pursuant to

the rights granted under theAct.


102. This is clearly not the case in this proceeding. As discussed above, outside of the

Copyright Act, copyright ownersother than the Crown, which has rights at common laware

the ones who have no rights to control the use of their works by others. The clear wording

[w]ithout prejudice to any rights or privileges of the Crown in section 12 of the CopyrightAct

shows that theActis not exhaustive when it comes to the rights of the Crown.

103. Where the Crown is immune to the application of the Copyright Act, it is not required topay for the use of copyright materials. Thus, where the Crown is immune, a licence to use

copyright materials is not a benefitper se.

104. Even if, for the sake of argument, the licensing agreements were a benefit to the Crown

under the Copyright Act, Access Copyright would have only established the benefit, but not the

burden. Access Copyright has not demonstrated, beyond vague assertions of fairness, how this

supposed benefit has the attendant burden of having to pay parties which have no license

agreement or other contract with the Crown.

Limited Waiver

105. Access Copyright disputes the Consortium members position on the limited nature of

waiver under the benefit/burden exception.


106. The Consortium members argument is simply that any past waiver of immunity would be

legally limited to the particular fact situations and statutory provisions that were in issue. This is

because the benefit/burden exception to the presumption of Crown immunity operates on the

basis of specific factual situations, and not at large. In other words, if, for the sake of argument,

the Crown was found to have waived its immunity in respect of a particular infringement case in

which the Crown asserted the benefit of copyright protection, that waiver would apply only in

respect of the party against whom it brought suit for infringement. If the Crown had been found


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to waive immunity by virtue of the benefit of a license agreement, that waiver would only apply

in respect of that agreement.

107. In Eros-quipe, the Crown was found to be subject to the infringement portion of the

Copyright Actonly in respect of the work for which the Crown had taken an exclusive license.The Crown was not, and could not have been, found to waive immunity in respect of any other

parties or any other agreements.

108. The examples of categorical decisions on the benefit/burden exception that Access

Copyright lists clearly show its misunderstanding of this notion. For instance, Access Copyright

states:

[I]n Neary v. Nova Scotia (Attorney General), the Nova ScotiaCourt of Appeal categorically held that the Crown could not, in anytortuous cause of action where it is a defendant, claim the benefitof s. 10 of Nova Scotias Fatal Injuries Act but avoid the burdenof s. 3 of the Limitations of Actions Act.

Access Copyright Factum at para. 147 (emphasis added)

109. Access Copyright seems to believe that categorical means that in every situation

where the facts and provisions in issue are identical, the benefit/burden exception will apply in

the same manner. This is obvious, and beside the point.

110. The Consortium members point here is that Access Copyright is trying to draw aconnection between disparate and individual past alleged benefits, such as expired license

agreements, and the burden of paying each one of Access Copyrights members for the entirety

of Access Copyrights broad repertoire of work for an indefinite period of time into the future.

V. The Onus of Rebutting the Presumption of Crown Immunity

111. Access Copyright, in the Overview section of its Factum, declares that the

presumption of Crown immunity is a misnomer:

It is important to note that although it is often referred to as apresumption, because the rule of Crown immunity is in fact a ruleof statutory construction, it is incorrect to speak of one party oranother bearing the onus to shift the presumption. No partybears an onus to establish that a particular statute is applicableto the Crown rather it is for the tribunal or court to determinewhether, in accordance with the applicable principles of statutoryconstruction and/or of Crown immunity, the statute in question is


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binding on the Crown. Here, neither Access Copyright nor theConsortium bears any onus.


112. With respect, Access Copyright is incorrect to argue that Crown immunity is a rule of

construction. Instead, Crown immunity is clearly a presumption. The common law and the text

of section 17 of the Interpretation Actmake it clear that it is presumed that statutes do not bind

the Crown. Because Crown immunity is a presumption, the onus is on a party wishing to claim

that the Crown is bound by a statute to prove that an exception from Crown immunity applies.

113. The onus in this case, therefore, is on Access Copyright to prove that an exception from

Crown immunity applies. The presumption provides that a statute will be presumed not to apply

to the Crown in the absence of express language stating otherwise. The Copyright Actlacks

any such language, and so Crown immunity must be presumed to apply.

This Court is not, however, entitled to question the basic conceptof Crown immunity, for Parliament has unequivocally adopted thepremise that the Crown isprima facie immune.

R. v. Eldorado Nuclear, [1983] 2 SCR 551, p. 558 (emphasis added)

MacDonnell, J. put it well:

Different considerations apply to the defence of Crown immunitybecause, as will be seen, there is a statutory presumption that theCrown is not bound by statutes. That presumption must beovercome, and in my view, the party seeking to bind the Crownhas that burden.

R. v. Greening; R. v. Webb, 1992 CarswellOnt 57, 43 MVR (2d) 53, atpara. 39 (emphasis added)

114. As the party seeking to rebut the presumption, Access Copyright bears the burden of

overcoming that presumption. This is simply the nature of a presumption. Access Copyrights

own quote from Blacks Law Dictionaryaffirms this:

presumption of law is a legal assumption that a court is requiredto make if certain facts are established and no contradictoryevidence is produced.

Blacks Law Dictionary(8th ed., 2nd reprint, Thomson, 2007), p. 1224(emphasis added)


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115. Although Access Copyright makes this complaint in the Overview section of its Factum,

by the time it reaches the benefit/burden exception, Access Copyright has, in fact, accepted that

it bears this onus because it argues that it has met the necessary burden of proof.


116. Since it is clear that the Copyright Acthas no language binding the Crown, Access

Copyright bears the onus of convincing the Copyright Board that the clear language of section

17 of the Interpretation Actdoes not apply in this matter. The presumption of Crown immunity, in

absence of clear binding statutory language, remains the default answer. Common law

exceptions to the Interpretation Actmust be interpreted strictly, narrowly and with great care, to

ensure that Parliaments intent is not thwarted by the exceptions being applied in an overly

legislative manner.


VI. Conclusion

117. As also noted in paragraph 95 of their Legal Arguments dated June 15, 2011, the

Consortium members believe that their position with respect to the Crown immunity issue

discussed above requires that the Board determine that Access Copyrights proposed tariff for

each immune jurisdiction is without legal foundation. As such, the Board would be without

statutory jurisdiction under the Copyright Actto either consider, or certify, such a proposed tariffin respect of these jurisdictions.

* * * * *

ALL OF WHICH is respectfully submitted, this 14th day of September, 2011.

______________________

Wanda Noel

______________________

J. Aidan ONeill


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______________________

Ariel A. Thomas

Of Counsel for the Consortium members

consortium members reply toaccess copyright re crown immunity. september 14. 2011

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