02 Memorandum of Fact and Law of the Respondent 16-02-12

8/2/2019 02 Memorandum of Fact and Law of the Respondent 16-02-12

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FEDERAL COLIRT OF APPEALBE TWE E N:

Court File Nos. A-339-11A-395-11

THE ASSOCIATION OF COLLEGES AND UNIVERSITIES OF CANADA andTHE UNIVERSITY OF MANITOBA

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THE CANADIAN COPYRIGHT LICENSING AGENCYoperating as "ACCESS COPYRIGHT"

MEMORANDUM Of FACT AND LAWOF THE RESPONDENT

OVERVIEW

Applicants

Respondent

1. The applications for judicial review in Court Files No. A-339-11 (the "339 Application")and A-395-11 (the u395 Application") are being heard together by order of Stratas J. datedJanuary 23, 2012. In both applications, the Association of Universities and Colleges of Canada("AUCe") and University of Manitoba (UU of MI7) seek judicial review of two interlocutory rulingsof the Copyright Board ( " B o a ~ d " ) 1 the first issued on August 18, 2011 (the IIAugust 18 Ruling")and the second issued on S ~ p t e m b e r 23,2011 (the "September 23 Ruling").The August 18 Ruling2. The August 18 Ruling, which is the subject of the 339 Application, dealt with a number ofmatters, including the issue sought to be reviewed by the Applicants, i.e., the request thatAUCC member institutions that say they are not operating under the Interim Tariff answerAccess Copyright's interrogatories (the Ulnterrogatories"). However, the Board's August 18Ruling was simply a ,confirmation by the Board that the AUCC was required to comply with theBoard's ruling of June 61 2011, which inter alia directed AUCC _ o seek answers from arepresentative sample of instituti


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6 Ruling,,).1 The AUCC never sought judicial review of the June 6 Ruling. The Applicants'Memorandum of Fact and Law does not alert the Court to, this, but instead the Applicantsattempt to characterize the August 18 Ruling as a new and stand-alone ruling. The 339Application is time-barred under section 18.1 of the Federal Court Ac t and should be dismissedon this basis alone.3. Even if this Honourable Court is inclined to treat the August 18 Ruling as a new andstand-alone decision of the Board and subject to review, the 339 Application should bedismissed. The Board's August 18 Ruling is an interlocutory decision of the Board and there areno special or. e.xceptional circumstances for departing from the rule that judicial review should besought after final decisions of a federal board. The 339 Application should be dismissed for thisreason.4. In the alternative, the August 18 Ruling confirming the June 6 Ruling is correct, certainlyreasonable, and should not be set aside. The Applicants argue that the Board's decision isunreasonable because it subjects IInon-parties" to "discovery". With respect to the Applicants'argument that the Opt-Out Institutions are IInon-partiesJl and that the AUCC did not represent theOpt-Out Institutions in respect of the August 18 Ruling (or, for that matter the June 6 Ruling),there is no merit to this argument for the following reasons:

(a) the AUCC applied for objector status in the Tariff Proceeding on behalf of all ofits 77 AUCC member institutions located outside Quebec, and was grantedobjector status in the Tariff Proceeding on this basis;

(b) the AUCC has never once' in any of its submissions to the 'Boatd (including withrespect to the August 18 and June 6 Rulings and the September 23 Ruling)advised the Board that it did not represent all AUCC member institutions outsideQuebec. At all times, the AUCC held itself out to the Board as representing all ofits 77 members outside Quebec and the ~ o a r d was entitled to rely on this; and

(c) the AUCC made detailed and lengthy submissions explicitly on behalf of Opt-OutInstitutions in relation to both the August 18 Ruling and the September 23 Ruling.Moreover, in its submissions in relation to these Rulings, the AUCC never arguedthat the Board did not have jurisdiction to make orders affecting Opt-Out

1 The AUCC member institutions that do not operate under the interim tariff elnterim Tariff') are .referredto as the IIOpt-Out Institutions". '


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Institutions, or that the Opt-Out Institutions could not be compelled to answerInterrogatories without the Board first establishing the elements of third partydiscovery.

5. It is noteworthy that, at the time the August 18 and June 6 Rulings were made, the onlyOpt-Out Institutions that existed were those AUCC members who say they opted out of theInterim Tariff as of January 1, 2011 (the uJanuary 1 Opt-Out Institutions") (since at the timethese Rulings were made, these were the only AUCC Institutions that had opted-out). Clearly,when the August 18 and June 6 Rulings were issued by the Board, the AUCC represented theInstitutions who did not opt-out until September 1, 2011 (the "Sep1ember 1 Opt-OutInstitutions"). The Applicants, therefore, have no basis for claiming procedural unfairness withrespect to the September 1 Opt-Out Institutions.6. Contrary to the Applicants' submissions on these judicial review applications, the recordbefore the Board clearly demonstrates that all AUCC institutions outside Quebec have beenrepresented by the AUCC at all times in the Tariff Proceeding. There is accordingly no merit tothe argument that there was a failure of procedural fairness in respect of the January 1 opt-OutInstitutions based on the claim that these Institutions were not heard by the Board.7. The ,?oard's procedures do not permit oral or documentary discovery - thus) theinterrogatories process is the only method for obtaining evidence relevant to the ProposedTariff. As master of its own procedures, the Board is entitled to control the interrogatoriesprocess in a manner that furthers its parliamentary mandate to certify tariffs. The Board is alsoentitled to judicial deference from courts on judicial review of its determinations of relevance andproportionality, with respect to its procedural decisions generally, and its decisions regardinginterrogatories specifically.8. Moreover, by ordering that only a representative sample of January 1 O p t ~ O u t Institutions answer the Interrogatories, the Board considered the burden on the Institutions andtailored its order accordingly. Contrary to the Applicants' arguments, the August 18 Rulingconfirming the June 6 Ruling qoes not impose an unreasonable burden on the Opt-OutInstitutions for the following reasons:

(a) the only AUCC members that are affected by the outcome of the 339 Appl.icationare the January 1 Opt-Out Institutions. T ~ e Applicants. cOrlcede (at para. 48 oftheir Memorandum of Fact and Law C1Applicants'. Memorandum") that the


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September 1 Opt-Out Institutions have already answered the Interrogatories anda representative sample of these Institutions will rectify any deficiencies in theirresponses; and

(b) the Board ordered in the August 18 and June 6 Rulings that only a representativesample of the January 1 Opt-Out Institutions is required to answer theInterrogatories. Just two January 1 Opt-Out Institutions - Brandon University andCampion College - are included in the representative sample of Opt-OutInstitutions. These are the only two AUCC members that are required to answerthe Interrogatories, and the only AUCC Opt-Out Institutions that are affected bythe August 18 Ruling (or June 6 Ruling for that matter).Affidavit of Steve Wills sworn October 6, 2011 ("Wills Affidavit (A-339w11 )ll),para. 30, Applicants Record (liAR"), Vol. 2, pp. 53-54.

9. Therefore, the 339 A p p l i c a t i o ~ is really only about whether two AUCC memberlnstitutions - Brandon University and Campion College - must answer the Access(nterrogatories. Moreover, the Board has only ordered that these institutions make l'reasonableinquiries" and provide a ureasonable amount of relevant information". To date, they haveprovided none at all.10. The other issues raised by the Applicants in relation to the August 18 Ruling (set out inparagraphs 1 8) through 1 0) of the Notice of Application in the 339 Application) - Le.,statements made by the Board about the potential consequences if an Opt-Out Institution doesnot comply with the ~ u n e 6 R u l ~ n g and _answer the Access Copyright Interrogatories - do notconstitute I'decisions" of the Board, let alone final decisions, and are not r e v i ~ w a b l e . The Boardexpressly retained jurisdiction to hE?ar submissions at a later date about the matters addressed ..in these statements. There was no pre-judging by the Board of matters addressed in thesestatements nor is there any evidence of bias as alleged by the Applicants. The Applicants arebootstrapping these nO'n-decisions onto what was merely a confirmation by the Board of itsearlier June 6 Ruling in an attempt to construe the August 18 Ruling as a new and stand-alone"decision" subject to review. These "grounds" for review are, clearly, red-herrings, not subject toreview and a waste of this Honourable Courfs time.


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The September 23 Ruling11. With respect to the September 23 Ruling, which is the subject of the 395 Application, thistoo is an interlocutory decision of the Board and there are no special or exceptionalcircumstances for departing from the rule that judicial review should not, generally, be grantedwith respect to an interlocutory decision of a federal board. As the Board stated in its September23 Ruling, even though Access Copyright has applied for a tariff that offers only a blanketlicence based on a set sum of money per academic year per full time equivalent C'FTE")student, it is open to the Board in its final decision to set royalties according to any reasonableformula it chooses, including one based on the number of copies made. It is still possible thatthe final tariff C'Final Tariff") certified by the Board will provide for transactional licences andaccordingly the 395 Application is premature, providing another reason why it must wait to beheard until after the Board issues'a Final Tariff.12. In the alternative, the September 23 Ruling is correct, certainly reasonable, and shouldnot be set aside. The Board's September 23 Ruling sets out in detail the bases for its decisiondenying the AUCC's application to amend the Interim Tariff. Several of these reasons amountedto findings of fact (due substantial judicial deference) regarding the administrative costliness andimpracticality of the Applicants' proposal, the lack of credibility of the Applicants' submissions,and an assessment of the balance of convenience favouring Access Copyright. Additionally,one of the objects of the Copyright Act is to ensure that rights holders get paid for protecteduses of their works. The 1nterim Tariff does not prevent Institutions from making alternativearrangements such as source licensing or using works that are not in the repertoire of AccessCopyright. The Board recognized in the September 23 Ruling that for the Institutions, the InterimTariff is an option, not an imposition. Moreover, the Applicants raise several issues here for thefirst time on judicial review that could have been - but were not - raised before the Board.13. Access Copyright requests that this Honourable Court dismiss the 339 and 395Applications, with costs as against the Applicants.


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PART I .. STATEMENT OF FACTSBackground14. Access Copyright is a collective society within the meaning of sections 2 and 70. 1 of theCopyright Act; it administers the reproduction rights of publishers and authors, and collects feesand grants licences for such rights in Canada in relation to works in its repertoire. Starting in1994, Access Copyright and members or the AUCC outside Quebec entered into licence. .agreements which permitted the Institutions to reproduce published works in Access Copyright'srepertoire onto paper. These licences, which were based on a model licence agreement,

. negotiated between the AUCC and Access Copyright (the "Model Licence"), expired onDecember 31',2010.15. On March 31, 2010, Access Copyright filed a Proposed Tariff that covers the copying ofworks in its repertoire by Po.st-secondary institutions in Canada, outside Quebec. In accordancewith section 70.14 of the Copyright Act, the Board published the Proposed Tariff in the CanadaGazette on June 12, 2010 giving notice to prospective users and their representatives that anyobjections to the Proposed Tariff were to be filed by August 11,2010.16. The AUCC filed an objection to the Proposed Tariff on July 15, 2010. The AUCC'sobjection letter stated:

AUCC hereby objects to the provisions of the [Proposed Tariff) on behalfof its members located in Canada outside the Province of Quebec.ALJCC is the voice of Canada's Universities. AUCC represents 95Canadian public and private not-for-profit universities and universitydegree level colleges. Of the 95 universities and colleges, 77 are locatedin Canada outside Quebec. [Emphasis added]Wills Affidavit (A-339-11), Ex. j'B" AR, Vol. 2, p. 66.

17. The AUCC was granted objector status in the Tariff Proceeding based on its July 15,2010 a p p l i ~ a t j o n and representation that it was objecting on behalf of its 77 members locatedoutside Quebec.18. On October 7, 2010, Access Copyright applied for an interim tariff to take effect fromJanuary 1,2011 to the date a Final Tariff is certified by the Board. By letter dated December 10,2010, the AUCC opposed Access Copyright's application for an interim tariff. On December 23,2010, the Board issued an interim tariff ("Interim Tariff') in effect from January 1, 2011 until the


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date the Final T a r i f f ~ i s certified. The Interim Tariff established a royalty based on a fee per FTEstudent, with per page rates for copies of published works made for the purpose of coursecollections that are sold to students. The Interim Tariff also provided an optional licence fordigital copying.

December 10, 2010 letter, Affidavit of Shallyn MacOonald swornNovember4, 2011 ("MacDonald Affidavit"), Ex. "G" , AR, Vol. 4, p. 581.December 23, 2010 Board Decision, Wills Affidavit (A-339-11), AR, Vol. 2,pp. 107 et ft.

19. The royalties sought in the Proposed Tariff and provided for in the Interim Tariff are inthe form of a blanket licence covering all copying by a post-secondary institution ("lnstitutionlJ).In its decision issuing the Interim Tariff, the Board stated that the main objectives of the InterimTariff were, inter alia, to provide certainty to targeted lnstitutions by informing them of what theymayor may not do using Access Copyright's repertoire starting January 1, 2011; and tomaintain the status quo to the extent possible under the Model Licence.

December 23, 2010 Board Decision, Wills Affidavit (A-339-11), AR, Vol. 2,pp. 107 et ft.20. Steve Wills, a lawyer who holds the position of Manager, Government Relations andLegal Affairs at the AUCC 1 was cross-examined on his two affidavits filed in the 339 Applicationand 395 Application. He t e s ~ i f i e d that the AUCC .applied for objector status in the TariffProceeding on behalf of all 77 AUCC members outside Quebec. He also testified that nowherein any of the AUCC's correspondence to the Board in the Tariff Proceeding (includingcorrespondence sent by the AUCC in relation to the August 18 Ruling and the September 23Ruling) did the AUCC advise the Board that the AUCC did not represent the Opt-OutInstitutions. The AUCC only once stated that it did not represent the Opt-Out Institutions, andthis was in its objections to the Access Interrogatories, provided to Access Copyright (asdescribed below in paragraphs 22 to 24).

Wills Cross-examination, AR, Vol. 6, Tab 10, Qs 109-10, 126-29, 14042, 145-46,176-77,229,269-70.

The June 6 Ruling21. The BoardJs Directive on Procedure in the Tariff P ~ o c e e d i n g dated March 161 2011 (thejjOirective") does not provide for documentary or oral discovery. Instead. the Directive providesf o ~ a process whereby partiCipants in the Tariff Proceeding exchange interrogatories. Theinterrogatories are not filed with the Board. If a participant objects to answerinQ an interrogatory


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posed by another participant, and the objection cannot be resolved by the concernedparticipants, only then does that interrogatory get filed with the Board.

Copyright Board of Canada, Model Directive on Procedure, dated March 16,2011, Applicants' Book of Authorit ies (UABA"), Tab 10.22. The AUCC objected to certain interrogatories served on it by Access Copyright. OnlyQuestion 3 of the Access Interrogatories is at issue in the 339 Application. Question 3 asked:

Q. Identify all parties that the Objector represents in the Tariff (each, anII Institution").

23. In their objection to Q. 3 provided to Access Copyright, the AUCC and the Association ofCanadian Comm unity Colleges ('IACCClJ) stated:

ObjectionAUCC and ACCC represent in this hearing their members located inCanada outside Quebec who are operating pursuant to the licenceconveyed by the Interim Tariff. AUCC and ACCe object to having tosecure answers to this interrogatory from their members located outsideQuebec who have decided to only make Copies of Published Works withthe permission of the copyright owner other than through the InterimTariff, or with other legal justification, e.g. fair dealing. The ProposedTariff does not apply to these members. [ .. ]MacDonald Affidavit, Ex. "An Appendix B, AR, Vol. 4, p.462.

24. Access Copyright wrote to the Board on April 191 2011 to seek a determination from theBoard on the objections to Interrogatories of the AUeC and ACeC, including whether theobjection to Q. 3 should be upheld; and in doing so, the objection by the AUCC and ACCC wasprovided to. the Board by Access Copyright. The Board issued the June 6 Ruling on theInterrogatories to which the AUCC and ACCC had objected, including Q. 3. The Board ruled:

General comment: the volume of information Access requests is largelya result of the breadth of issues raised by the objectors. That being said,parties are reminded that the Board does not need all existing relevantinformation to set fair tariffs. The ~ s s o c i a t i o n s should provide areasonable amount of relevant information, from a reasonable number ofinstitutions, preferably identified with the concurrence of Access. Theinstitutions will in turn be required to make reasonable inquiries fromstaff.Q. 3/3: the objection is dismissed. Information concerning institutionsthat do not avail themselves of the interim tariff is relevant and shall beprovided, subject to the general comment aQove. Institutions who resistproviding information should be reminded of the Board's powers. pursuant to subsection 66.7(1) of the Copyright Act.June 6 Ruling, Wills Affidavit (A-339-11), Ex. uJ", AR, Vol. 2, p. 332.


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The August 18 Ruling25. The AUCC never sought judicial review of the June 6 Ruling.

26. The AUCC and ACee were to provide their answers to Interrogatories by a deadlinespecified by the Board. They failed to provide any answers from Opt-Out Institutions and on July20, 2011 Access Copyright wrote to the Board referring to the June 6 Ruling, pointing out thatthe AUee and Aeee had failed to provide answers to Interrogatories from any January 1 OptOut Institution and requesting:

[ .. Jthat the Board issue an effectively confirming its June 6 - order:(i) requiring the AUeC and AGCe to provide complete answers to theinterrogatories from a representative sample of the institutions onSchedule 'IA

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developed in consultation with Access Copyright incompliance with the June 6 Ruling, or, alternatively;(ii) the Board exercise its powers under section 66.7(1) of the CopyrightAct to require that the institutions listed on Schedule "AI! [the attached listof January 1 Opt-Out Institutions] answer and produce for inspection allof the documentation that is responsive to the interrogatories.Access Copyright's July 20, 2011 letter to the Board, Wills Affidavit (A-339-11), Ex. UK", AR, Vol. 2, p. 337.

27. The AUCe's letter dated August 2t 2011 filed with the Board in response to AccessCopyright's July 20 1 2011 letter, commences, IIWe are writing to you on behalf of the Associationof Universities and e o l ~ e g e s of Canada [ .. ]" Nowhere in the AUeC's letter does it state that theAUCe does not represent the Opt-Out Institutions. Nowhere in the letter does the AUee statethat the Board does not have jurisdiction to make an order that the Opt-Out I"nstitutions answerthe Interrogatories. In fact, the AUCC's submissions opposing Access Copyrighfs request thatthe June 6 Ruling be enforced include more than two pages of detailed arguments opposinghaving the Opt-Out Institutions answer the Interrogatories.

August 2, 2011 AUCC letter, Wills Affidavit (A-339-11), Ex. "L", AR, Vol. 2,pp. 344 and 351-53.28. The Board issued its August 18 Ruling, again ordering the AUCC and Aeee to provideanswers to Interrogatories from a representative sample of the Opt-Out Institutions: The August18 Ruling stated, in part:

The application for an order allowing Access to obtain information frominstitutions that do not avail t h e m ~ e l v e s of the interim tariff (the "opt-out


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29. Pursuant to the August 18 Ruling, the parties were to agree on a representative sampleof OptwOut Institutions. Access Copyright negotiated directly with the AUCC regarding whichOpt-Out Institutions should be included in the r e p r e s e n t a ~ i v e sample. There was no suggestionwhatsoever from the AUCC or its counsel that counsel for the AUCC was not able to negotiateon behalf of the Opt-Out Institutions; nor was there any suggestion that Access Copyrightshould be negotiating with the OptHOut Institutions directly-because the AUCC did not represent,the Opt-Out Institutions. Throughout its correspondence with-Access Copyright and the Board,the AUCC held itself out as authorized to represent the Opt-Out Institutions.

Letter dated September 10, 2011 from counsel fo r the AUCC to counsel forAccess Copyright, MacDonald Affidavit, AR, Vol. 4. p. 823".Letter dated September 14, 2011 from counsel for the ACCC (writing onbehalf of the AUCC and ACCC) to counsel fo r Access Copyright,MacDonald Affidavit. ARt Vol. 4, p. 837ff.

30. Access Copyright and the AUCC drew a sample of Opt-Out Institutions. Included in thesample are just two January 1 Opt-Out Institutions (Brandon University and Caf!lpion College).These are the only AUCC members affected by the August 18 Ruling since the Applicantsconcede at paragraph 48 of their Memorandum that the September 1 Opt-Out Institutionsprovided answers to the Interrogatories (they had not opted out when the June 6 Ruling and theAugust 18 Ruling were mage) and the AUCC does not object to having a sample of theSeptember 1 Opt-Out Institutions address deficiencies in the responses to Interrogatories thathave been provided by them.31. The AUCC filed its application for judicial review of the August 18 Ruling on September -19, 2011. For its part, the Association of Canadian Community Cotteges (ACCC) has not soughtjudicial review. The August 18 Ruling was stayed (Access Copyright took no position on theAUCC's stay motion), and to date, the AUCC has not provided any answers to Interrogatoriesfrom Brandon University or Campion College.The September 23 Ruling32. The application for judicial review in the 395 Application relates to the _Board's decision,dismissing the AUCC's application to B:mend the Interim Tariff. ~ h e AUCC filed an applicationon June 8, 2011 to amend the Interim Tariff to require Access Copyright to g'rant transactional


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. licences to its members on a per copy basis. Nowhere in its application to amend the InterimTariff does the AUCC state it is not representing the Opt-Out Institutions. Indeed, the AUCC. .filed d o c u m e n t ~ r y evidence obtained from some of its members who had opted out on January1, 2011, and made extensive arguments as to why the Board should amend the Interim Tariff toallow any Opt-Out Institution to demand and obtain a transactional licence - i.e., a one-timelicence for a one-time use of a work in Access Copyright's repertoire.

AUCC Application to Amend Interim Tariff, Affidavit of Steve Wills swornNovember 22, 2011 ("Wilts Affidavit (Aw395-11}"), Ex. "e", AR, Vol. 5, p.882ft.33. In effect, the AUCC a s k ~ d the Board to graft onto the Interim Tariff a right for Institutions- including Opt-OLit In'stitutions who were therefore not paying the FTE rate under the InterimTariff - to demand a transactional I j c e n c ~ from Access Copyright for paper and/or digital copies.Since at least 2004, Access Copyright has never issued a transactional licence to Institutions forpaper copies that fall within the limits of the Model Licence. What the AUCC was seeking wouldchange the status quo ante for paper. Similarly, with respect to digital copying, AccessCopyright had only issued digital transactional licence to Institutions that had signed the ModelLicence.

AUCC Application to Amend Interim Tariff, Wills Affidavit ( A - 3 9 5 ~ 1 1 ) , Exhibit "C", AR, Vol. 5, p. 882.Access Copyright Reply, Wills Affidavit (A-395-11), Exhibit "I") AR, Vol. 5, p.1003. .34. In its reasons dismissing the AUCC's application, the Board set out 10 different groundsfor its decision, including:

(a) once a tariff is in place, a collective should be entitled to rely on it. A r ~ u a b l y , when a collective opts for a tariff, it is in part to avoid the costs associated withtransactional dealings. Such a course of conduct is rational and fair (para. 16);

(b) the Interim Tariff seeks to reflect the status quo to the extent possible and isreasonable. The agreements the tariff replaced were "take it or leave if ' licences.Therefore, the "take it or l ~ a v e it" nature of Access Copyright's dealings cannot ofitself justify changing the status quo (paras. 11-14);

(c) transactional licen'ces inherently raise monitoring issues, especially in such adecentralized setting as the Institutions. These issues. are compounded. withdigital copying (paras. 21-24);


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a false sense of security. If the Final Tariff provides only for an FTE rate asAccess Copyright has requested, any Institution that availed itself of an interimtransactional licence will be liable for the full FTE price unless the Final Tariffprovides otherwise (para. 30); and

(f) the Board's power to vary a tariff is broad and even though Access Copyrightapplied for a tariff that offers only the FTE licence, it will be open to the Board inits final decision to set royalties according to any reasonable formula, includingone based on the number of copies made (para. 33).September 23 Ruling, Wills Affidavit (A-395-11), Exhibit irA", AR, Vol. 5, p.855-61.

PART II - POINTS IN ISSUE35. Access Copyright submits that the following issues are the principle issues raised by theApplications and that a response in the negative to these questions requires rejection of theApplications:

(a) in relation to the August 18 Ruling and the September 23 Ruling, whether thereare any special or exceptional circumstances for departing from the rule thatjudicial review should only be granted for a final decision(s) of a federal board,here the Copyright Board?

(b) in relation to the August 18 Ruling, whether the application for judicial review ofthe August 18 Ruling should be considered by this Honourable Court given that itis out of time because the Ruling merely confirms the June 6 Ruling, in respect ofwhich no application for judicial review was ever filed by the Applicants?

36. Should this Honourable Court respond in the affirmative to either of the above questions,in response to the issues as stated by the Applicants at paragraphs 58 and 59 of the Applicants'Memorandum, Access Copyright submits that:

(a) the August 18 Ruling (and the June 6 Ruling) and the September 23 Ruling werecorrect, and certainly were reasonable having regard to the circumstances andthe deferentia,1 standard of review due to the Board's decisions;


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(b) the Board did not exceed its authority under the Act by requiring the January 1Opt-Out Institutions to answer the Interrogatories;

(c) the Board was correct, and certainly reasonable, to require January 1 Opt-OutInstitutions to answer the Interrogatories, a decision due the greatest deferenceas a mat ter involvir}g procedural and evidentiary findings:(i) the Board's decision properly took into account sections' 66.7(1) and

70.15 of the Act;(ii) the Board's decision was properly tailored to avoid imposing an

unreasonable burden on the January 1 Opt-Out Institutions since only arepresentative sample (two Institutions) is required to answer theInterrogatories, and they are only required to conduct lI reasonableinquiries" and provide a "reasonable response"; and,

(iii) the Board's decision did not constitute an order for Uthird-party' discoverysince the Opt-Out Institutions were at all times represented by the AUCCin the Tariff Proceedings, are prospective users under the Final Tariff andthere is no reason to believe that the Board did not consider third partydiscovery UrequirementsJJ;

(d) the Board's statements at paragraphs (6) to (8) of the August 18 Ruling wereproper and, in any event. the statements manifest no (pre}determination (the

...Board has expressly retained jurisdiction to hear submissions at a later dateabout the matters addressed in these statements) and are irrelevant to theApplication.

37. In relation to the September 23 Ruling, there is no real error of law alleged by theApplicants grounded in the text of the Act, the sufficiency of the Board's reasons or its exerciseof discretion - the Applicants merely dislike the r e s u l ~ the Board reached, principally on findingsof fact, that differed from the result sought by the Applicants. Contrary to the Applicants'arguments:

(a) the Board's decision is consistent with and takes into account the statutorycontext and purpose of the Act;


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decision falls within a range of possible, acceptable outcomes which aredefensible in respect of the facts and law. [emphasis added]Dunsmuir v. New Brunswick, [2008] 1 SCR 190 (IIDunsmuir") at para. 47,ABA, Tab 1.

41. The Court has explained in subsequent decisions that the review is an "organic exercise- the reasons must be read together with the outcome and serve the purpose of showingwhether the result falls within a range of possible outcomes)}, The adequacy of a board'sreasons is not by itself a sufficient basis for quashing the board's decision. H[C1ourts should notsubstitute their own reasons, but they may, if they find it necessary. look to the record for thep u r p o s ~ of assessing the reasonableness of the outcome,1I

Newfoundland Nurses at paras. 1 4 ~ 1 5 .

B. The Board#s procedural determinations are entitled to deference as the Board ismasterof ts own procedures42. Access Copyright submits that when the Federal Court of Appeal looks to the actualrecord here (as opposed to the Applicants' selective arguments), both of the Rulings are.acceptable outcomes that reflect a correct - and certainly a reasonable - interpretation of thefacts and the law. As discussed more fully below, Federal Court case law affirms that deferenceto administrative decisions is at its highest when procedural matters are at issue: U[t1hejurisprudence establishes, as a general rule, that administrative agencies are masters of theirown procedures as long those procedures respect the principles of procedural fairness." Here,of course, the Applicants raise only one issue of procedural fairness: the contention being madefor the first time in these judicial review proceedings that Opt-Out Institutions should have beenheard, in addition to their representative the AUCC, in relation to the August 18 Ruling. TheApplicants have made no suggestion that the Board ever denied the AUeC, the ACee, or anyInstitution that wished to be heard an opportunity to make submissions on any decisionchallenged now.

Coupal v. Canada (Attorney General), 2006 FC 255 at para. 27, ACBA, Tab 2.See also Bell Canada v. Canadian Telephone Employees Association, 2001FCA 139 at para. 5, ACBA, Tab 3.


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- 16-c. The Board1s findings of fact are entitled to deference unless they are capricious orperverse43. Findings of fact are not easily set aside by courts in hindsight. Thus, the Federal Court ofAppeal has held:

On an application for judicial review the role of the Court with respect toa tribunal's findings of fact is strictly circumscribed. In the absence of anerror of law in a tribunal's fact-finding process. or a breach of the duty offairness, the Court may only quash a decision of a federal tribunal forfactual error if the finding was perverse or capricious or made withoutregard to the material before the tribunal: FederaJ Court Act, paragraph18.1(4)(d). Hence, if, as a result of an error of law. a tribunal has omittedto make a relevant finding of fact. including a factual inference. thematter should normally be returned to the tribunal to enable it tocomplete its work. [emphasis addecUCanada (Minister of Human Resources Development) v. Rafuset 2002 FCA31 at para. 13, ACBA, Tab 4.

D. The Board 's decisions should no t be overturned based on arguments that couldhave been but were not presented to the Board44. The Supreme Court of Canada recently ruled that udiscretion wi,1I not be exercised infavour of an applicant on judicial review where the issue could have been but was not raisedbefore" the administrative body, offering several rationales including: (a) the administrativebody's "specialized functfons or expertise"; and (b) doing so IImay unfairly prejudice theopposing party and may deny the court the adequate evidentiary record reqUired to consider theissue",

Alberta (Information and Privacy Commissioner) v. Alberta Teachers'Associations, 2011 SCC 61 at paras. 2 2 ~ 2 9 , ABA, Tab 2.The Decisions are Interlocutory and Not Ripe for Review45. It is settled law that unless there are IIspecial circumstances"! courts should not conductjudicial review of an interlocutory decision of a federal board. A decision will be consideredreviewable and not interlocutory where it is IIfinally dispositive of a substantive right of a party,the d e t ~ r m i n i n g factor being whether the damage done by the interlocutory decision can later becorrected" .

Szczecka v. Canada (Min. of Employment & Immigration) (1993), 116 D.L.R.(4th) 333 (Fed. C.A.) at para. 4, ACBA, Tab 5.Cosgrove v. Canada '(Attorney General), 2008 Fe 941 at para. 31, ACBA,Tab 6.


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46. The Applicants argue that the August 18, 2011 Ruling is not interlocutory because it is afinal determination of the obligations. of Opt-Out Institutions to provide answers to AccessCopyrightls Interrogatories. In fact the Applicants claim that the August 18 Ruling uraises issuesthat are jurisdictional in nature about the Board's authority to reach beyond the parties to a tari ffto impose discovery requirements .. "

Applicants' Memorandum, AR, Vol. 8, at para. 63.47. As a preliminary point, this casual reference to jurisdictional error is reflective of thegenerally inflammatory nature of the arguments made in the Applicants' Memorandum (theApplicants have also accused the Board of acting IIblindly", in a biased manner and in rlcavalierdisregardll of the consequences of its decisions). If the Applicants are sincerely claiming that theBoard exceeded its jurisdiction in issuing the August 18 Ruling, then they should forthrightly sayso and argue that the proper standard of judicial review is correctness, not reasonableness.Their reference here and elsewhere in their factum to the Board exceeding its jurisdiction is anattempt to suggest a more favourable standard of review without establishing that it applies.

Applicants' Memorandum at paras. 10, 61, 63, 77, 78, 90.48. Even assuming that the Opt-Out lnstitlJtions should be characterized as Uthird parties"because they did not object to the Proposed Tariff qua institutions, and, thus, the August 18Ruling raises jurisdictional issues, the Applicants have not shown that this constitutes a specialcircumstance warranting interlocutory review. In fact, the Federal Court of Appeal. has held thatthe presence of a jurisdictional issue is not an exceptional circumstance allowing judicial reviewbefore the administrative process has been completed.

Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61at para. 33, ACBA, Tab 7 rthe authorities show that very fewcircumstances qualify as "exceptional" and the threshold forexceptjonality is high [ .. ] the presence of so-called jurisdictional issues isnot an exceptional circumstance justifying early recourse to courtsll) andpara. 45 C'courts all across Canada have repeatedly eschewedinterference with intermediate or interlocutory administrative rulings andhave forbidden interlocutory forays to court, even where the d e c ~ s i o n .appears to be a so-called 'jurisdictional' issue"}.

49. Paragraphs 6 ~ 8 of the August 18 Ruling are neither a final determination of the Opt-OutInstitution's ri.ghts or obligations nor relevant to this Application (339). While the Applicants havechallenged these paragraphs as "improper enforcement threats and prospective evidentiaryrulings"', .the impact of these statements - none of which constitutes a reviewable (let alone final)


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"decision" - on the Opt-Out Institutions is entirely dependent on the Opt-Out Institutions' ownchoice of actions between now and the Proposed Tariff hearing and, regardless, aredeterminative of none of the issues addressed in these paragraphs or the 339 Application.50. Paragraph 6 of the August 18 Ruling merely confirms Access Copyright's ability to filewith the Board an application limiting the ability of an Opt-Out Institution that does not provideinterrogatory responses to file evidence at the Proposed Tariff hearing absent the Board's leave.No determination is made by the Board with respect to any such application. Paragraph 7 (selfevidently) notes that if the Opt-Out Institutions choose not to provide interrogatory responses,then the Final Tariff certified by the Board might be higher than otherwise, as the record will notreflect the copying habits of Opt-Out Institutions as accurately as it would if they fullyparticipated; no determination is made by the Board with respect to this issue. Paragraph 8 ofthe August 18 Ruling simply notes that an Opt-Out rnstitution's decision to operate outside theInterim Tariff will not immunize it from potential liability or an obligation to provide informationunder the Final Tariff; no determination is made by the Board with respect to this issue.51. Paragraph 6 is, at most, a statement by the Board about the evidentiary procedure to befollowed in the Proposed Tariff hearing; it does not affect the rights or obligations of any party. Astatement regarding evidentiary procedure or the admissibilit,y of evidence before the actualhearing on the merits is not a type of "special circumstance" in which judicial review is permitted.The Federal Court of Appeal has specifically explained:

Rulings made by a Tribunal panel on the admissibility or compellability ofevidence should not be the subject of such applications until the panellsproceedings are completed. This principle, as the cases have indicated,is based on the fact that the parties cannot know until the end of theproceeding whether a review of a particular interlocutory decision will benecessary; and on the fact that the inconvenience of the delay involvedfar outWeighs any value in an early review.Bell Canada v. Canadian Telephone Employees Association, 2001 FCA 139at para. 5, ACBA,. Tab 3. See also Canada (Min. of Citizenship &Immigration) v. Varela, 2003 FCA 42 at paras. 3-5, ACBA, Tab 8 (findingpremature an application for judicial review of a decision on a point of law~ e a l i n g with evidence).

52. Paragraphs. 7 and 8 of the August 18' Ruling do not have any effect on the Opt-OutInstitutions' rights or obligations - ' they are merely obiter dicta by the Board discussinghypothetical situations. It is well established that statements with no impact on parties' rightscannot be the subject of judicial review. Moreover, even assuming that these statements aretaken to be evidence of bias - as the Applicants speculate without any evidence in support of


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this startling allegation - an ~ l I e g a t i o n of non-systemic bias does not qualify as ':specialcircumstances" justifying immediate judicial review.

Sanaf; Pasteur Ltd. v. Canada (A. G.} (2008), 2008 Fe 286 at paras. 48-521ACBA, Tab 9.53. Finally, with respect to the September 23 Ruling, the Applicants claim that they win notbe able to apply for judicial review of this decision if they have to await the Fi.nal Tariffcertification. However, the very question may become moot by the ultimate decision of theBoard in the Tariff P r o c e ~ d i n g , As the Board explained in the September 23 Ruling, "it wil1 beopen to the Board in its final decision to set royalties according to any reasonable formula itchooses, including one based on the number of copies madel' , Importantly, it will also be opento the Objectors to argue that a transactional-based tariff is the proper one.

Wills Affidavit (395-11), Ex. "A" AR, Vol. 5, Tab 8A, para. 33.54. Moreover, 16 of the Opt-Out Institutions say they have been operating outside theInterim Tariff since January 1, 2011, and 21 say they have been doing so since September 1,2011. They have seemingly done so without a need for transactional licences (as was the casebefore the Interim Tariff became effective on January 1 2011). The Opt-Out Institutions willsuffer no prejudice if they continue to wait until the Board issues its decision regarding theProposed_ Tariff. At that time, they (and this court) will be in a better position to assess all thefacts, legal issues, and consequences facing the Opt-Out Institutions.

Hurst Cross-examination, AR, Vol. 6, Tab 9, Qs. 336-40.Wills Cross-examination, AR, Vol. 6, Tab 10, Qs. 178-81,348-53,359.

Judicial Review of the August 18 Ruling is Time .Barred55, The Board's June 6 Ruling contained the Board's -decision regarding whether Opt-OutInstitutions should be required to respond to the Interrogatories (the focus of the 339Application). In that decision, the Board found that the large volume of information requested byAccess Copyright in the Interrogatories was due to the issues raised by the objectors, that theinformation from Opt-Out Institutions was relevant, and that the parties should be able tonegotiate a reasonable amount of information from a reasonable number of Institutions, whichwould make reasonable inquiries of their staff. As stated by Mr. Wills in his affidavit andconfirmed by the Applicants at paragraph 48 of their Memorandum, those AUCC members whosubsequently became the September 1 Opt-Outs have already answered the Interrogatories


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- 20-and the Applicants concede that a representative sample of them will correct any deficiencies intheir answers. The sample of January 1 Opt-Out Institu1ions contains only two Institutions,randomly selected, demonstrating that the Board's finding was more than reasonable.

Wills Affidavit (A-339-11), para. 30 and Ex. "J", AR, Vol. 2, pp. 53-54 and332.56. The August 18 Ruling contains no new findings or conclusions of law regarding thepropriety of requiring answers from the Opt-Out Institutions. It merely provides deadlines for theparties to agree on which Opt-Out Institutions will be required to answer the Interro.gatories , atimetable for answers, and a joint letter to the Opt-Out Institutions describing the consequencesof not answering, as well as the Board's own statements in paragraphs 6-8 regardingconsequences of ignoring the Ruling.

Wills Affidavit (A-339-11), Ex. uM", AR, Vol. 2, p. 376.57. The Applicants did not apply for judicial review of the June 6 Ruling within 30 days asrequired by Rule 18.1 (2) of the Federal Courts Act, or at all. Nor did the Applicants bring amotion seeking an extension of time. Moreover1 even though the AUCC was keeping the OptOut Institutions apprised of developments with the Board, none of the Opt-Out Institutionsobjected.

Wills Cross-examination, AR, Vol. 6, Tab 10, "Qs 50-52.Section 18.1(2), Federal Courts Act, R.S.C. 1985, c F-7

58. There is no evidence before the Court as to the reason why the Applicants neglected tofile an application for judicial review within the time period for the June 6 Ruling. Indeed,AUCC's affiant in support of its applications Steve Wills (Manager, Government Relations andLegal Affairs) does not accurately describe the nature of the June 6 Ruling in his affidavit, andthe Applicants omit any mention of the June 6 Ruling at all from their Memorandum.

Wills Affidavit (A-339-11), AR, Vol. 2, p a r a ~ 22; Applicants' Memorandum atparas. 41-42.59. Case law here is clear - a courtesy response of a federal board affirming an earlierdecision does not extend the time for seeking judicial review, unless the board has explicitlyagreed to reconsider its decision on the basis of new facts and issue a new one.

See Dumbrava v. Canada (Minister of Citizenship and Immigration), [1995]F.C.J. No. 1238, 101 F.T.R. 230, at para. 15, ACBA, Tab 10.


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60. The Applicants have not alleged that the Board's August 18 Ruling constituted areconsideration of its June 6 Ruling. Indeed, it was Access Copyright who wrote to the Board toinform it that the AUCC and ACeC had not yet filed any answers from Opt-Out Institutions andrequesting the Board order the AUCC and ACeC to comply with the June 6 Ruling.

Wills Affidavit ( A ~ 3 3 9 - 1 1 ) , Ex. 'K", AR, Vol. 2, pp. 340-41.61. In its response to Access Copyright's 60mplaint to the Board about the AUCe andACCC's non-compHance with the June 6 R u l i n g ~ the AUCe submitted tlthat it has complied withthe [June 6] Ruling [ .. because] [i]t has provided a vast quantity of relevant information frommore than a reasonable number of AUCe members .." But the AUCC never asks the Board toformally reconsider or revisit its -June 6 Ruling. It certainly never raises the argument that theBoard's June 6 Ruling is deficient because it does not 'contain a full-fledged analysis of thepropriety of third-party discovery or that the Board lacked jurisdiction over the Opt-OutInstitutions. On cross-examination, Mr. Wills admitted that the AUCC did not write to the Boardin response to Access Copyright's request to enforce the June 6 Ruling for the purpose ofadvising the Board that the AUCC would not be providing any responses from Opt OutInstitutions or for the purpose of contesting the Board's jurisdiction over such Institutions.

Wills Affidavit ( A - 3 3 9 ~ 1 1 ) . Ex. HL", AR, Vol. 2, p. 352. Wills Crossexamination, AR, Vol. 6, Tab 10, Qs 275-77, 280-81,284,292-95,318-20.62. The text of the August 18 Ruling confirms that the Board's ,focus was determiningcompliance with the June 6 Ruling, not reconsidering its findings and conclusions on the merits.The Board writes: liThe June 6, 2011 ruling is clear". The Board does not reference or rely onany new arguments on the issue by the parties, nor does it supplement or vary its reasons.Accordingly, t h ~ Applicants are t ~ m e barred from challenging the Board's decision that the OptOut Institutions must respond to the Interrogatories.

Wills Affidavit (A-339-11), Ex. "Mil, AR, Vol. 2, p. 376.In the Alternative, the August 18 Ruling and the September 23 Ruling Are Correct. andCertainly ReasonableA. A u g u ~ t 18 Ruling63. The August 18 Ruling was manifestly a procedural decision. As a matter of standard ofreview, the Courfs deference is at its highest with respect to procedural decisions ofadministrative bodies. Access Copyright submits .that the Board correctly, and certainly


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reasonably, found that the Opt-Out Institutions were prospective users, indeed participants,under the Proposed Tariff proceeding (and, thus, not third parties). Even if the Opt-OutInstitutions are considered to be third parties, the Board reasonably found that their evidencewas relevant and the interrogatory responses sought would not impose an unreasonableburden. Finally. the Board's decision was in furtherance of its mandate under section 70.15 tocertify proposed tariffs and well within its procedural powers under section 66.7(1) to makeorders unecessary or proper for the due exercise of its jurisdiction" 'under section 70.15. Thiswas a correct, and certainly a reasonable, interpretation of the Board's procedural powers underthe Copyright Act.i. The Opt-Out Institutions were represented by the AUCC64. It is clear that the Opt-Out Institutions have been represented by the AUCC throughoutthe Tariff Proceedings. First, Mr. Wills testified under cross-examination that the AUCC througheither its internal staff or external counsel kept all its member Institutions informed of the TariffProceeding and coordinated their responses to the Interrogatories since at least December 23,2010. To claim now that the Opt-Out Institutions were not represented before the Board when itmade its August 18 Ruling but were uninvolved third parties is, therefore, a mischaracterizationof the record.

Wills C r o s s ~ e x a m i n a t i o n t AR, Vol. 6, Tab 10, Qs 52-62.65. Second, Mr. Wills could not, on cross-examination, identify any time that the AUCCinformed the Board that it was not representing those Institutions not operating under the InterimTarif f (the only such statement appeared once, in the AUCC's April 4,2011 response to AccessCopyright) or that the Board lacked jurisdiction to order the Opt-Out Institutions to respond tointerrogato(ies. Third, while the Applicants claim that that there is some sort of divide betweenthe AUCC's representation of its members operating within the Interim Tariff and the Opt-OutInstitutionsl interests, they have not identified any real divergence of interests. In his crossexamination, Mr. Wills admitted that the AUCC strives to represent all its members' interests.Interestingly, paragraph 19 of the Applicants' Notice of Application in 1\-395-11 explicitly statesthat the application to vary the Interim Tariff was brought by AUCC to the Board on the Opt-OutInstitutions' behalf:

AUCC applied to the Board to amend the interim tariff to provide fortransactional licences because it would be vastly more efficient andtimely to provide for transactional licences than for each opt out


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- 23-institution to make an application to the. Board under Section 70.2 foreach copy of a published work that an opt out institution desires to make.Wills Cross-examination, AR, Vol. 6, Tab 10, Qs 106, 1 0 9 ~ 1 0 , 128, 130-33,140-42,14547,176-77,198,207,229,259,318-20.395 Application afpara. 19, AR, Vol. 1, Tab 2.

ii. The Opt-Out Institutions are prospective users under the Final Tariff66. It is implausible that the Opt-Out Institutions are not prospective users under the FinalTariff. Christopher Hurst, a representative of Brandon University (a January 1 Opt-OutInstitution) testified at length in his affidavit in support of the 339 Application about BrandonUniversity's extensive and lengthy (16-year) history of using Access Copyright's repertoire. Mr.Hurst outlined a handful of measures that Brandon University has taken to try to operate outsidethe Interim Tarl.ff. without violating copyright law, but he also explicitly stated that BrandonUniversity decided to operate outside the Interim Tariff because of the "potential retroactiveliability" should the Final Tariff be certified at a higher rate by the Board. None of this is evidencethat Brandon University did not continue to be a prospective user under the Proposed Tariffgiven its extensive history with Access Copyright, and its ability to opt-in to the Tarff during (orsubsequent to) its period of application.

Hurst Affidavit, AR, Vol. 3, Tab 6, paras. 5, 10-18.

67. Mr. Hurst further testified on cross-examination that:(a) there is an official executive point of contact between Brandon University and

AUCC that allows the latter to keep the former apprised on Copyright Boardproceedings, and although Brandon University did not, itself, file an objection tothe Proposed Tariff, Mr. Hurst knew the AUCC had filed such an objection onbehalf of its members, including Brandon University;Hurst C r o s s ~ e x a m i n a t i o n , AR, Vol. 6, Tab 9, Qs 49-50,63-64,80-91,103.

(b) he did not know w h e ~ h e r Brandon University's executives became aware of theInterrogatories, through the AUCC, when they were issued by Access Copyrightor whether (or when) they became aware of the Board's June 6 Ruling;Hurst Cross-examination, AR, Vol. 6, Tab 9; Qs 98, 188-91,_ 233,235,238,240-41.


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(c) he himself personally became aware of Access Copyright's July 20, 2011 requestfor the Board t6 enforce its June 6 Ruling lIa few days" after July 20, 2011; andHurst Cross-examination, AR, Vol. 6, Tab 9, Qs 246, 251, 254, 260-62.

(d) Brandon Universitis fair dealing policy, a basis for Brandon University's position'that it need not operate under the Interim Tariff, originated with the AUCC and/orits legal counsel, demonstrating the intimate involvement of AUCC in the internalcopyright management policy of the Opt-Out Institutions and the unity of interest.between the AUCC and the Opt-Out Institutions.Hurst C r o s s ~ e x a m i n a t i o n J AR, Vol. 6, Tab 9, Qs 5 7 3 ~ 7 8 .

68. If the Opt-Out Institutions were not prospective users, then they would disclaim any useof Access Copyright's repertoire - a position they have consistently refused to take. In theseproceedings, they have brought an application to the Board to amend the Interim Tariff, claimingthat they require transactional licences from Access Copyright because they wish to use worksin its repertoire. In the tariff hearing, the Board will, as !t indicated in its September 23 Ruling,consider various methods of calculating royalties. If the Final Tariff includes some form oftransactional licence, the Opt-Out Institutions may become users of the Final Tariff even jf suchInstitutions claim not to be subject to the Interim Tariff. Of course, as the Final Tariff will beretroactive to January 1, 2011, even Institutions that obtained a transactional licence (Le., underthe Interim Tariff if this court were to reverse the Board's September 23 Ruling) may still besubject to the terms of the Final Tariff.69. Of course, it is also clear that any Opt-Out Institutions not operating legitimately outsidethe Interim Tariff (by making just one copy of a published work in Access Copyright's repertoirewithout licence from the owner or under a legal exception), would be actual users - not justprospective users - under the Final Tariff. This reality is apparent in the cross-examination ofBrandon University's representative Mr. Hurst. When asked what steps Brandon University tookto ensure compliance with the copyright laws in the lead-up the expiration of the licence withAccess Copyright on December 31,2010 and the decision to operate outside the Interim Tariff,Mr. Hurst:

(a) could not identify any changes made by professors to their use of course packsor class handouts or e-mails of published works to students;Hurst Cross-examination, AR. Vol. 6, Tab 9, Qs 382-406.


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(b) could not confirm any monitoring mechanism (or change in monitoringm e c h a n i ~ m ) to verify that published works put in paper course reserves orelectronic course management by professors have been legally obtained;Hurst Cross-examination, AR, Vol. 6, Tab 91 Qs 418-27, 429-32, 436-40, 443-47, 524-30.

(c) could not identify any sanction imposed by Brandon University for any breach ofcopyright law or the Institutionls copyright policies by a professor or studentdiscovered by Brandon University;Hurst Cross-examination , AR, Vol. 6, Tab 9, Os 548-58.

(d) admitted that Brandon University has no copyright administration or clearanceoffice and that only he (a librarian with no legal training) is responsible forcopyright clearance advice; andHurst Cross-examina tion, AR, Vol. 6, Tab 9, Qs 2530, 67-69, 73-77.

(e) confirmed that he has never sought legal advice regarding copyright clearance.Hurst Cross-examinations AR. Vol. 6, Tab 9, Qs 703 .04.

70. Brandon University made a last-minute decision to try to operate without a licence andoutside the Interim Tariff and took minimal internal steps to so operate, most of which occurredafter the Tariff became effective (January 1, 2011). The Board was aware, through the AUCC'ssubmissions, that the January 1 Opt-Out Institutions were attempting to operate outside theInterim Tariff. It was, therefore, open to the Board to conclude, based on the evidence provided,that the January 1 Opt-Out Institutions were prospective users of the Proposed Tariff.Regardless, the annual structure of the Proposed Tariff, notably the ability of Institutions to optin during the period of the Proposed Tariff, is sufficient basis for such conclusion.

Hurst Cros,s-examination, AR, Vol. 6, Qs 39-44, 382-99, 400-06, 423-27, 429-30, 435-40, 444-45, 516-21 524-30, 533-40, 548-58.

71. Finally, the Applicants' argument ,(at paragraphs 76-77 of. their factum) that the Boardhas no power to order "non-parties" (as a narrowly defined term) to respond to Interrogatorieshas no merit. Under the Applicants' theory, only the Auec and ACee qua associations areparties to the Proposed Tariff Proceeding but member Institutions are not and therefore cannotbe requested t6 answer the Interrogatories. If the Court adopted this premise, then it would haveto find that the Board has no authority to require even the Institutions operating under the


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- 26-Interim Tariff to respond to the Interrogatories. This is a submission not even the AUCC or theACCC has advanced before the B ~ a r d or any Court.72. The AUCe and ACee, as mere membership organizations, have no relevant i.nformf!ltionthemselves as regards the rate at which the Board should certify the tariff. They are permitted toappear as objectors on behalf of their members for the sake of administrative efficiency. Thisprocess has never given members of associations the ability (or right)1 to hide behind theassociation, here the AUCC and ACCe l to resist reasonable interrogatory requests, since theyare the entities with relevant information and they are the prospective users.iii. Even i f the Opt-Out Institutions are considered third parties, the Board's decisionwas proportional and did not impose an unreasonable burden on the Opt-Out

Institutions73. The Applicants argue that the Board failed to consider whether the requirements for nonparty discovery were met, i.e., that the Interrogatories were relevant, that the Opt-OutInstitutions were prospective users, that the information cannot be otherwise obtained, that theInterrogatories were proportional, that the Interrogatories effect no unjustified interterence orprejudice, that the Interrogatories will not interfere with the progress of the proceedings, and thatthe time and expense incurred is not onerous.

Applicants' Memorandum, AR, Vol. 8, at para. 79.74. This is a red-herring. Moreover, it is an entirely new argument that the AUCC neverpresented to the Board for its consideration. The AUeC never raised the objection that theBoard lacked jurisdiction or was requ!red to consider any Hrequirements" related to third partydiscovery in their submissions regarding the. June 6 Ruling or the August 18 Ruling.75. The Board's findings. with respect to relevance and uprospective users" have alreadybeen discussed above. With respect to availability of information, it is self-evident that if the OptOut Institutions are not ordered to respond, Access Copyright will not have any evidence aboutthe copying habits of those purporting to operate outside the Interim Tariff! who could later optin, or otherwise be subject to the Finar Tariff, and this information will not be available to theB o a ~ d in its Proposed Tariff hearing.76, With respect to prejudice to the Opt-Out Institutions, they are merely being asked tosupply relevant information. As discussed below, the burden of responding is proportional, andthere will be no collateral interierence or prejudice to their interests in this or any other matter.


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77. With respect to interference with progress of the proceedings, the filing of this applicationhas done more to delay these proceedings than anything else. Clearly, other m.emberInstitutions, indeed the Sept;}mber 1 Opt-Out Institutions, of the AUCC (and ACee) were able torespond in a reasonably timely manner. If the Interrogatories had been answered pursuant tothe schedules set out in the August 18 Ruling, then the parties would be much closer to ahearing date for the certification of the Proposed Tariff.78. With respect to burden in terms of IItime and expense", the Applicants claim that the Optbut Institutions will face {(expansive and burdensome" inquiries if forced to respond. In fact, as aresult of the August 18 Ruling, only two Opt-Out Institutions have been chosen to respond to theInterrogatories. Additionally, the touchstone of the Board's Rulings has been that the Opt-OutInstitutions only need to make IIreasonable inquiries" and provide a "reasonable amount ofrelevant information". To date, no inquiries have been made and no information provided. In thiscontext,' the Board1s June 6 and August 18 Rulings can hardly be described as 4Iunreasonable".79. The only evidence of the burden that the Applicants have submitted is the affidavit of Mr.Hurst of Brandon University, who claims that responding to the Jnte-rrogatories would take "manyhundreds of person hours", diversion of staff, and lIeven impinge the basic universityoperations". However. on cross-examination, Mr. Hurst admitted that this statement was basedsolely on his own estimation without reliance upon substantive conversations with the AUCC,other Institutions who have responded to the Interrogatories, or any Brandon University librarystaff members, management, professors, administrative staff, or information technology staff.Mr. Hurst admitted that he conducted no real inquiry as to time, cost, or institutional resourcesinvolved, and admitted that other Institutions of similar size to Brandon University had answeredthe same Interrogatories. Mr. Hurst was also unaware that Brandon could have requested anextension of time to comply.

Hurst Affidavit, AR, Vol. 3, Tab 6, paras. 2 2 ~ 2 4 ; Applicants' Memorandum,AR, Vor. 8, at para. 50.

Hurst Cross-examination, AR, Vol. 6, Tab 9, Qs 245, 274, 278,281 .91,294-95, 298-300, 303-07.80. Mr. Hurst further testified that if it operated under the Interim Tariff, Brandon Universitywould not be faced with a situation significantly different from the status quo. Specifically,Brandon University:


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(a) would not encounter any unique burdens or expenses out of the ordinary type ofexpenses and obligations that Brandon University faces and that are passed onthrough the University budget to students through tuition;Hurst Cross-examination, AR, Vol. 6, Tab 9, Qs 589-96,600,605-11,614-15,619.

(b) new expenses can be reflected in changed student fees; andHurst Cross-examination, AR, Vol. 6, Tab 9, Qs 625-29,' 631-34,646-53.

(c) Brandon University, has an accumulated surplus for the 2010-11 budget year ofmore than $2 million that can be used to meet a budget change caused byincreased copyright compliance expenses.Hurst Cross-examination, AR, Vol. 6, Tab 9, Qs 6 5 9 ~ 6 2 , 665, 671, 678-81.

81. The Board's June 6 Ruling and August 18 Ruling easily meet th.e administrative lawrequirements for intelligibility and reasonableness. The Board made a finding of fact (due thehighest judicial deference) that the Opt-Out (nstitutions are prospective u s ~ r s under theProposed Tariff based on their past conduct in these proceedings! their proposed use of AccessCopyright material, and their ability to Opt-In (as well as Opt-Out) annually under the ProposedTariff. The Board then made a finding that requiring a sample of Opt-Out Institutions to respondwould produce information relevant to its determination of the tariff rate and would not beburdensome. The thoughtfulness of the Board's decision is reflected in the June 6 Ruling whereit rejected or limited some of Access Copyright's Interrogatories. Courts of record andadministrative tribunals make decisions every day with one-line affirmations of relevance andreasonableness, and without providing reasons for such decisions. To allow such a decision tobe subject to full fledged judicial review would be contrary to the purpose of, and the p r o ~ e s s for, judicial review established by the Federal Courts Act..82. The Applicants treated this as a routine interrogatory matter when the issue was beforethe 8 o a r ~ , and yet they are attempting - ,too tate - to paint it now as a jurisdictional issue of thehighest order before this Court. The Applicants' attempt must be rejected.iv. The Board's decision properly took into account sections 66.7(1) and 70.15 of the

Copyright Act83. The Applicants do not identify how the Board failed to properly take account of section66.7(1) and 70.15 of the Act. They merely state that the general powers of the Board identified


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- 29-in section 66.7(1) may only be exercised within the limits of the Board's authority in section70.15 to certify tariffs with regard to objections thereto.84. Section 66.7(1) provides the Board wide procedural authority:

General powers, etc.66.7 (1) The Board has, with respect to the attendance, swearing andexamination of witnesses, the production and inspection of documents, theenforcement of its decisions and other matters necessary or proper f o ~ the dueexercise of its jurisdiction all such powers, rights and privileges as are vested ina superior court of record.Copyright Act, s. 66.7(1).

85. Section 70.15 provides the context in which that authority may be exercised:Certification70.15 (1) The Board shall certify the tariffs as approved, with such alterations tothe royalties and to the terms and conditions related thereto as the Boardconsiders necessary, having regard to any objections to the tariffs.Copyright Act, s. 70.15.

86. Thus, section 66.7 confers upon the Board the full procedural authority necessary for itto periorm its duties to certify a tariff under section 70.15. This Court has recognized that thisauthority is quite comprehensive and not to be narrowly circumscribed:

These powers are useful complementary tools at the disposition of the Board foruse upon request or of its own motion in appropriate circumstances: see section6 of the Board's Model Directive on Procedure. . . . ITlhese powers canconveniently be used by the Board to complement a partially defective record. . .[emphasis added] .Society of Composers, Authors and Music Publishers of Canada v. BellCanada, 2010 FCA 139 at para. 33, , ACBA, Tab 11.

87. Requiring a small sample of the Opt .Out Institutions to respond to Interrogatories is , asthe Board has explained in its June 6 Ruling and its August 18 Ruling, crucial to allowing th.eBoard to obtain evidence necessary to certify a fair and equitable tariff. It is necessary becausethe Opt .Out lnstitutions have relevant information about copying practices. And it is alsonecessary in order for the Board to control its own procedures. If the Opt-Out Institutions are tobe allowed to present evidence at the tariff hearing (which the Applicants claim is the AUCC'sand/or the Institution's right). then fairness dictates that Access Copyright should have access torelevant information responsive to the Interrogatories.


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. v. The Board's statements at p ~ r a g r a p h 6 to 8 of the August 18 Ruling do notconstitute improper bias or pre-judgment, and are regardless irrelevant to theApplication88. There is nothing in paragraphs 6, 7, or 8 of the August 18 Ruling that places theApplicants at a disadvantage or indicates any pre-judgment of the issues on the merits.89., Paragraph 6 merely confirms that Access Copyright may file with. the Board anapplication limiting the ability of an Opt-Out Institution that does not provide Interrogatoryresponses to file evidence at the Proposed Tariff hearing absent the Board's leave. The Boarddoes not say that it will grant such an application., Nor does the Board state that there is apresumption that leave will not be granted. Additionally, the Board's June 6 and August 18Rulings only require a reasonable inquiry and reasonable response from the Opt-OutInstitutions. Any prejudice here is three causal chains away from actual fruition and, even if theApplicants' position is sustained, only amounts to an interlocutory evidentiary decision.90. Paragraph 7 of the August 18 Ruling notes that if the Opt-Out Institutions choose not toprovide Interrogatory responses, then the Final Tariff certified by the Board might be higher thanotherwise, as the record will not reflect the copying habits of Opt-Out Institutions (presumablylow-volume copiers) as accurately as it would if they fully participated. No determination is madein this regard. This does not constitute an improper bias or ('signaI JJ of the Board's direction onthe merits, as the Applicants argue. First, the Applicants have not filed any evidence of bias anddo not even bother to layout the test for bias in their factum, which is reflective of their lack ofconviction in their own claim. Second, the standard for alleging a reasonable apprehension ofbias is objective and h i g ~ . The Federal Court of Appeal has stated that it is a "serious allegationllthat shall not be made lightly and Ilcannot rest on mere suspicion, pure conjecture, insinuationsor mere impressions of an applicant or his counsel. It must be supported by material evidence .demonstrating conduct that derogates from the standard. It is often useful, and even necessary,in doing so, to resort to evidence extrinsic to the case." The Applicants can point to no evidenceshowing that the tenor of the August 18 Ruling discloses prejudgment or bias rather thanstatements in a routine interrogatories dispute.

Arthur v. Canada (Attorney General), 2001 FCA 223, at para. 8, ACBA,Tab 12. .91. Paragraph 8 of the August 18 Ruling merely reminds the objectors that an Opt-OutInstitution's decision to operate outside the Interim Tariff will not immunize it from potentialliability or an obligation to provide information under the .Final Tariff; it makes:no determination


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- 31 -in this regard. The Applicants claim that, by this statement, the Board is engaging in improperlIen forcement 17 of a tariff. Of course, the Board nowhere states that it is attempting toprospectively enforce the Interim Tariff or any other tariff against the Opt-Out Institution.92. The Board's statements in paragraphs 6 to 8 of the August 18 Ruling are not even ripefor judicial review, much less evidence of impermissible bias. Moreover, they are irrelevant tothe substance of the AUCC's application for judicial review of the August 18 Ruling. In short, theApplicants' argument with respect to these statements is yet another r e d ~ h e r r i n g l introduced todistract this Honourable Court from the paucity of any merits to the AUCC's challenge of theAugust 18 Ruling.B. September 23 Rulingi. The Board's decision is consistent with and takes into account the statutory

context and purpose of the Act93. The Applicants argue that because the general purpose of the Copyright Act is toprovide copyright users access to works while ensuring proper reward for their creators, theBoard's refusal to order Access Copyright to offer transactional licences to the Opt-OutInstitutions is de facto unreasonable as being inconsistent with the general purpose of the Act,as well as section 70.2 specifically,

Applicants' Memorandum, AR, VoI.S, at para. 102-03.94. As a preliminary matter, the Court should note that although the AUCC spends almostfour pages (paragraphs 96-101) on this argument in its Memorandum, it did not raise thesearguments in its application to the Board to amend the Interim Tariff. While the AUCC diddiscuss in general terms how the collective licensing regime was brought about throughamendments to the statute over the past 30 years, nowhere did it suggest (as it does now) thatif the Board refused to order mandatory transactional licences pursuant to the Interim Tariff (asopposed to individually per section 70.2) the Board would be acting in a manner "inconsistentwith the statutory context and purpose of the copyright licensing regime. I The Applicants nowargue (which Access Copyright disputes) that the Board had no discretion to deny. orderingAccess Copyright to grant transactional licences given this "statutory context.!!

Wills Affidavi t (A-395 .11)J AUCC's July 19 2011 Submission to the CopyrightBoard, AR, Vo1-5, Ex. "J", pp.1038-40.


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95. The Supreme Court of Canada r e c ~ n t l y ruled that "discretion will not be exercised infavour of an appricant on judicial review where the issue could have been but was not raisedbefore" the administrative body, offering several rationales, including: (a) the administrativebody's specialized functions or expertise"; and (b) doing so IImay unfairly prejudice th.eopposing party and may deny the court the adequate evidentiary record required to consider theissue".

Alberta (Information and Privacy Commissioner) v. Alberta Teachers'Associations, 2011 sec 61 at paras. 22-29, ABA, Tab 2.96. Both considerations apply here. The Applicants are contestir}9 the considered judgmentof the expert federal board e m p o ~ e r e d to set tariff and licence rates in a complicated statutoryscheme that Tequires the application of both legal and industry expertise. Furthermore, theApplicants' failure to bring this argument before the Board denied the Board the opportunity toexplain the scope of its powers and the nature of its discretion given the general statutorypurpose as that interacts with SUb-sections 70.2 and 70.15 of the Act. As a result, this Courtdoes not have an adequate evidentiary record to consider this issue and Access Copyrightwould be unfairly prejudiced if the Court exercised its discretion in favour of the Applicants.97. Assuming the Court should consider the Applicants' argument in this contextl AccessCopyright submits that the AUCC1s argument is inconsistent with the w e l l ~ c o n s i d e r e d scheme ofthe Act. Under the Act, the Board is empowered to issue licences under three circumstances: toset the terms of licences pursuant to subsection 70.2(2); to change the terms of licenSingagreements at the request of the Commissioner of Competition pursuant to subsection 70.6(1);and, to issue a licence for the use of a work whose copyright owner cannot be located pursuantto subsection 77(1). These are the only circumstances under which express statutory authorityis granted to the Board to issue compulsory licences.

Copyright Board, Reasons for Dec. 23, 2010 Interim Tariff (March 16, 2011),Wills Affidavit (A-339-11), Exhibit "Eu rAR, Vol. 2, p. 152.98. Access Copyright is a collective society within the meaning of section 70.1 of the Act.'Section 70.12 of the Act s t a t ~ s that a collective society may: operate via tariff or entering intolicences. It does not read that a collective society 'Cshall" or "musf' operate via a licence where auser does not want to operate under a tariff.

70.12 A collective society may. for the purpose of setting out by licence theroyalties and terms and conditions relating to classes of uses,(a) file a proposed tariff with the Board; or.


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(b) enter into agreements with users.Copyright-Act, R.S.C. 1985, C C-42, s. 70.2.

99. Among other things, copyright owners have the exclusive right to reproduce their worksin whole or in substantial part, and to authorize such reproduction. Nothing in the Act compels a 'copyright owner, or a collective society under section 70.12. to licence the reproduction of anycopyright-protected work. To find otherwise, as the AUCC argues, would mean that Canada hasa compulsory licensing regime. It does not.100. Finally, as alluded to a b o v e ~ the Applicants are arguing that the general context andpurpose of the Act make it unreasonable to deny them an' order mandating a copyright collectiveto provide mass transactional licences in the context of a tariff certification proceeding. This isthe exact reverse of traditional administrative law analysis - while specific textual provisions in astatute may limit discretion, it is rare that a statute's general purpose will mandate that certainaction be taken. To establish such an unorthodox result, the Applicanfs should be forced toestablish that they are entitled to a mandamus remedy, ordering discretion be exercised in aspecific manner. The requirements for mandamus are significant, and the Applicants haveneither pleaded nor established them here:

Before this Court will order a writ of mandamus, the following criteria [ .. ]must be satisfied:(a) there must be a public legal duty to act under t h ~ circumstances;(b) the duty must be owed to the applicant;(c) there must be a clear right to performance of that duty, and inparticular the applicant must have satisfied all conditions precedentgiving rise to the duty;(d) no other adequate remedy is available to the applicant;(e) the order sought must have some practical effect;(f) in the exercise of its discretion, the court must find no equitable barto the relief sought; and(g) on a balance of convenience, an order of mandamus should issue.Khalil v. Canada (Secretary of State), [1999] 4 Fe 661 at para. 11, ACBA,Tab 13.

ii. The Board correctly, and certainly reasonably, apprehended the purposes ofproviding interim relief under section 66.51 of the Act101. The Applicants argue that the purpose of section' 66.51 of the Act is to protect partiesaffected' by the length and uncertainty of the tariff proceeding before the Board and that theBoard IImisdirected" itself by assuming that the Interim Tariff as issued reflected the status quobetween the parties. This argument was not ra,ised b e ~ o r e the Board. Instead, the AUCC chose


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- 34-to justify its request for an amendment to the Interim Tariff on the grounds that AccessCopyright's' refusaf to grant transactional licences represented a change from the status quothat existed before the Interim Tariff came into effect on January 1, 2011. For the same reasonsas advanced above, the Court should dismiss the argument outright.

AUCC's July 19 2011 Submission to the Copyright Board, Wills Affidavit (A-395-11), AR, Vol. 5, Ex. "J", pp. 1 0 4 5 4 6 ~ 102. Assuming that the Applicants are entitled to make this argument for the first time in thisCourt, the Board's ruling remains correct, . and certainly reasonable. The Board stated in itsSeptember 23 Ruling that "[t]he interim tariff seeks to reflect the status quo to the extentpossible and reasonable'!. Thus, it is incorrect to suggest that the Board focused on the statusquo to the exclusion of the interests in certainty under section 66.51. The Board simply agreedwith Access Copyr ight that the Interim Tar iff reflected the status quo and was reasonable.103. That finding is supported by the record. Access Copyright submitted to the Board that:

Access Copyright has never issued transactional licences to postsecondary ed ucational institutions for paper copies. Nor has AccessCopyright ever entered into a transactional licence for digital with anypost-secondary educational institution that had not already entered into acomprehensive licence for paper copying, and was therefore paying theFTE rate under the comprehensive licence. In its application, the AUCCis seeking an amendment to the Interim Tariff that would give a right toInstitutions - including those who have not taken up the tariff and whoare therefore not paying the FTE rate - to demand a transactionallicence for paper copies andl or digital copies. What the AUCC isseeking would entirely change the status quo ante for paper and digital.Access Copyright's July 8 2011 Submission to the Copyright Board, WillsAffidavit (A .3 9 5 ~ 1 1 ) , AR, Vol. 5, Ex. "I", pp. 1009.

104. Access Copyright submitted that the AUCC was requesting a change from the statusquo:

In essence, the AUCC is asking that the Board establish an interim tariffthat provides an a-la-carte menu. for post-secondary institutions: aninstitution can choose to pay: (i) the FTE rate; (ii) a transactional (Le.,one-off) licence for paper coursepack copying; (iii) a transactional licencefor digital copying; and (iv) a blanket licence for digital copying underSchedule "G", or any combination of the above. This is not reflective ofthe status quo, is a completely unworkable model, would be acompliance and revenue-tracking nightmare (particularly in the digitalenvironment) and should not. be implemented by the Board withoutcogent and conVincing evidence that it is the appropriate way to reflectvalue and fairly compensate rightsholders.


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- 35-Access Copyright's July 8 2011 Submission to the Copyright Board, Wills.Affidavit ( A - 3 9 5 ~ 1 1 ) , AR, Vol. 5, Ex. "In pp. 1011.

105. The Board agreed, finding:

,AUCC asks for something institutions either never had or rarely used.Based on the record, we conclude that, at least since 2004, Access hasgranted digital or paper transactional licences only to insUtutions thatbought the FTE licence, and only for uses that were not allowed by theFTE or coursepack licences. Furthermore, the use of digital transactionalUcences was minimal. In 2010, permission was sought for 1,160 titles.Less than two per cent of institutions regularly purchased digitaltransactional licences, and less than 10 per cent made at least oneapplication. Royalties paid pursuant to those licences totaled less thanone per cent of what Access collected pursuant to the FTE andcoursepack licences.September 23 Ruling, Wills Affidavit (Aw395-11), AR, Vol. 5, Ex. "A", p. 856.

106. The Applicants' affiant Mr. Wills in cross-examination confirmed that he was unaware ofany situation prior to January 11, 2011 where Access Copyright had granted a transactionallicence to an Institution that had not already entered into a blanket, Model Licence agreementwith Access Copyright.

Wills Cross-examination, AR, Vol. 5, Tab 10, Qs 346-53, 358-59.107. Moreover, Mr. Hurst testified on cross-examination that Brandon University neverrequested a transactional licence from Access Copyright. Therefore, he can hardly claim thatthe Board's refusal to order mandatory transactional licences is a change from the status quo.

Hurst C r o ~ s .. e x a m ~ n a t i o n , AR, Vol. 6, Tab 9, Qs 336-37.108. The Applicants complain that the Board's decision ignored the changed circumstancesafter the prior licences expired by focuss,ing too much on the blanket licensing agreements.They also complain that the Board's concern with monitoring requirements for transactionallicences was misplaced because Access Copyright had previously p ~ o v i d e d digital licences, andthat the low volume of transactional licence requests is not a reason to refuse to mandatetransactional licences in the'absence of other licensing alte(natives.'

Applicants' Memorandum, AV, Vol. 8, at paras. 105 .07, 110 .11.109. However, the Board considered these issues at length in the September 23 Ruling,ultimately rejecting the AUCC's proposal as too difficult to administer. The Board identifiedseveral problems with AUCC's proposal in,cluding:


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(a) inherent monitoring 'issues;(b) cost-intensive administrative issues;(c) contradictory submissions by the proponents of transactional licences that made

it "difficult to lend credence to their statements";(d) uncertainty resulting between any variance between a transactional licence andFin'al Tariff;(e) a balance of convenience favouring Access Copyright, as the "[a]mounts in issueare prima facie significant for Access, far less so for the institutionsU,; and(f) "operational difficulties" in the AUCC's proposal.

September 23 Ruling. Wills Affidav,t (A-395-11), AR, Vol. 5, Ex. "A", p. 8 5 8 ~ 61. '110. These are all findings of fact that cannot be overturned by a court on judiCial reviewunless they are capricious, perverse, or made without regard to the evidence. The Board'sreasons for making these findings are clear, intelligible and reasonable. The Applicants have nogrounds (and have proffered no basis) for challenging the findings as capricious, perverse, orarbitrary. They object simply because the Board reached a different conclusion than that soughtby the AUCC.iii. The ruling is consistent with earlier decisions of the Board that the Interim Tariff isvoluntary and will not impair alternative licensing mechanisms111. The Applicants argue that the September 23 Ruling is inconsistent with the Interim Tariffdecision of the Board, because the effect of the refusal by Access Copyright to providetransactional licences is to force Opt-Out Institutions to forego copying a work or obtain a full,blanket licence under the Interim Tariff. However, even a cursory review of the Board'sSeptember 23 Ruling shows that the Board addressed this argument and found it Jacking forgood reason. Paragraph 113 of the AUCC's factum manifestly ignores and misrepresents thesereasons.

Applicants' Memorandum, AR, Vol. 8, paras. 16.53,54,61,99-100.112. Under the general ta

02 Memorandum of Fact and Law of the Respondent 16-02-12

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