Date: 20051014
Docket: A-380-05
Citation: 2005 FCA 330
Present: PELLETIER J.A.
BETWEEN:
GROUPE ARCHAMBAULT INC.
Applicant
and
CMRRA/SODRAC INC.
and
BELL CANADA, CANADIAN ASSOCIATION OF
BROADCASTERS, CANADIAN CABLE
TELECOMMUNICATIONS ASSOCIATION,
CANADIAN RECORDING INDUSTRY ASSOCIATION,
MOONTAXI MEDIA INC., NAPSTER LLC, MUSICNET
INC., APPLE CANADA INC., REALNETWORKS INC.,
YAHOO ! INC., SIRIUS CANADA INC., ROGERS
WIRELESS INC., ASSOCIATION QUEBECOISE DE
L’INDUSTRIE DU DISQUE, DU SPECTACLE ET DE
LA VIDÉO (ADISQ) INC.
Respondents
Hearing held at Montréal, Quebec, on October 7, 2005.
Order made at Ottawa, Ontario, on October 14, 2005.
REASONS FOR ORDER BY: PELLETIER J.A.
Date: 20051014
Docket: A-380-05
Citation: 2005 FCA 330
Present: PELLETIER J.A.
BETWEEN:
GROUPE ARCHAMBAULT INC.
Applicant
and
CMRRA/SODRAC INC.
and
BELL CANADA, CANADIAN ASSOCIATION OF
BROADCASTERS, CANADIAN CABLE
TELECOMMUNICATIONS ASSOCIATION,
CANADIAN RECORDING INDUSTRY ASSOCIATION,
MOONTAXI MEDIA INC., NAPSTER LLC, MUSICNET
INC., APPLE CANADA INC., REALNETWORKS INC.,
YAHOO ! INC., SIRIUS CANADA INC., ROGERS
WIRELESS INC., ASSOCIATION QUEBECOISE DE
L’INDUSTRIE DU DISQUE, DU SPECTACLE ET DE
LA VIDÉO (ADISQ) INC.
Respondents
REASONS FOR ORDER
[1] This is an application for a stay of proceedings before the Copyright Board, concerning the applicant, in the event of a decision by this Court on its application for judicial review of an interlocutory decision on the disclosure of evidence.
[2] The application for a stay of proceedings is based on the following facts. The respondent CSI, a collective representing music composers, submitted to the Copyright Board a statement of proposed royalties that would require online music services to pay it royalties for the use of the work of the composers that it represented. The applicant, which operates an online music service, opposes the proposed royalties, as do a number of other similar services. The Board’s rules of procedure allow each party to submit questions to any other party. The responses are forwarded to the party that asked the questions but are not circulated among the other parties or filed with the Board.
[3] In this case, the applicant and the respondent exchanged questions. Each objected to the questions asked by the other. While a compromise was reached on some of the objections, others were submitted to the Board for a decision. The respondent sought quite detailed information, relating to all aspects of the applicant’s business, including technology, finances, contractual relations, advertising and relationships within and among related corporations. In the applicant’s view, the information sought was irrelevant to the issue before the Board, and the respondent’s questions related to information that would be extremely prejudicial to the applicant if disclosed.
[4] The Board issued an order on June 9, 2005 overruling most of the applicant’s objections. It stated that the objections based on confidentiality of information were overruled, as confidentiality was not an adequate ground of objection, since the Board could issue a confidentiality order at the request of any party feeling that one was necessary.
[5] An application for judicial review of the order and an application for a stay of proceedings were filed by the applicant, who argued that the order overruling its objections was tantamount to unreasonable seizure within the meaning of section 8 of the Canadian Charter of Rights and Freedoms. The applicant relied on case law to the effect that an order to produce documents by state authorities constitutes seizure, even in a regulatory context: R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627. In the applicant’s view, the irrelevance and confidentiality of the information sought, as well as the costs that the applicant would have to bear in order to recover the information, make the order in question unreasonable.
[6] In Szczecka v. Canada (Minister of Employment and Immigration) (F.C.A.) (1993), 116 D.L.R. (4th) 333, Létourneau J., writing for this Court on the subject of judicial review of interlocutory injunctions, stated the following:
[4] This is why unless there are special circumstances there should not be any appeal or immediate judicial review of an interlocutory judgment. Similarly, there will not be any basis for judicial review, especially immediate review, when at the end of the proceedings some other appropriate remedy exists. These rules have been applied in several court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses which interfere with the sound administration of justice and ultimately bring it into disrepute. In the case of judicial review under s. 28 of the Federal Court Act, which is the case now before the Court, the interpretation of that section by the Court is even more strict.
[7] If judicial review of an interlocutory judgement is rarely warranted, the granting of a stay of proceedings pending the outcome of the review should be even rarer. Before addressing the conditions for issuing an interlocutory stay of proceedings, the Court must be satisfied that its intervention is warranted under the circumstances. The applicant does not deny the existence of case law to this effect but argues that the infringement of its constitutional right to privacy justifies this Court’s intervention even at the stage of an interlocutory order concerning disclosure of evidence. This line of thought would have the effect of transforming simple questions of relevance into constitutional issues.
[8] There are no exceptional circumstances that would warrant this Court’s intervention at this stage. The relevance of questions raised in an examination or on examination for discovery is one of the most trite issues raised in civil litigation. It is up to the decision maker who hears the proceedings to resolve these issues. Quite likely, some will allow questions which turn out to be irrelevant. However, this does not transform a procedural issue into a constitutional one.
[9] The nature of the decision maker, be it a court of law or an administrative tribunal, does not alter the nature of the question. In either case, an order concerning disclosure of evidence gives the parties the necessary documents so that they may assert their viewpoint before the decision maker. Except insofar as they serve to enlighten it in its decision-making, the decision maker in truth has no interest in those documents. The instant case does not involve forced disclosure in the context of a dispute between the state and the individual who is the subject of the forced disclosure.
[10] For these reasons, the motion for a stay of proceedings must be dismissed even before we proceed to analyse the conditions that must be satisfied in order to grant an interlocutory stay of proceedings, as set out in R.J.R. - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. This case involves no special circumstances that would warrant delaying the proceedings before the Board.
[11] Even if some special circumstances were discovered in the case and it were necessary to then analyse the conditions under which a stay of proceedings should be issued, the applicant could not succeed in its application because it has not demonstrated irreparable harm. The applicant argued that, once confidential documents are circulated, it is impossible to re-establish their confidentiality if their disclosure is subsequently determined to be unjustified, which constitutes irreparable harm. Some case law supports this argument: Calgary Regional Health Authority v. United Western Communications Ltd. (c.o.b. Alberta Report Magazine) (1999), 35 C.P.C. (4th) 324, at paragraphs 19-20.
[12] In the case at bar, this argument is academic, since the applicant did not apply for a confidentiality order, as the Board invited it to do. The applicant cannot assume that an order by the Board would not meet its requirements. See on this point Canada (Attorney General) v. Canada (Information Commissioner) 2001 FCA 26, [2001] F.C.J. No. 283 (F.C.A.), at paragraph 12.
[13] The applicant argues that the infringement of its constitutional right to privacy represents irreparable harm and that any infringement of a right conferred under the Charter constitutes in and of itself irreparable harm. It bases this argument on the following passage from 143471 Canada Inc. v. Quebec (Attorney General) (143471 Canada Inc.), [1994] 2 S.C.R. 339, at paragraph 82:
Small as it may be, there is such a privacy interest. If it transpires that the respondents are correct in their constitutional contention, then I would think that the loss of that privacy interest would, in itself, constitute irreparable harm.
[14] This passage reappears in the reasons of Cory J., concurred in by Sopinka and Iacobucci JJ. Lamer C.J. was in agreement with Cory J.’s conclusion but questioned some of his propositions. La Forest J., along with McLachlin and l’Heureux-Dubé JJ., dissented on this point. He wrote as follows:
[41] . . . The respondents are objecting here to the examination by the tax authorities of the contents of business documents the seizure of which was previously authorized. The existence of irreparable harm cannot be inferred simply because a breach of a right protected by the Charter is alleged or because the main proceeding itself involves the infringement of an entrenched right . . . . It seems wrong to conclude as a matter of principle that the right to privacy must in all circumstances take priority over any other interest, for example over giving effect to legislation adopted in the public interest.
[15] This Court expressed its view on the significance of the decision in 143471 Canada Inc. in Canada (Attorney General) v. Canada (Information Commissioner) (2001), 268 N.R. 328:
[22] The decision of the Supreme Court in 14371 Canada Inc. v. Québec [A.G.], [1994] 2 S.C.R. 319 brought to our attention by the respondents rested on an entirely different set of facts. It dealt with intrusive searches of residential and business premises by the tax authorities under constitutionally suspect statutory authority. The Court in its reasons noted on more than one occasion that searches of private property are far more intrusive than a demand for production of documents, thereby giving rise to a greater need for the protection of the privacy interests of those concerned (see pages 380, 381 and 382). That is the context in which the majority concluded that irreparable harm would result if the seized documents were reviewed by the tax authorities, pending the determination of the constitutional validity of the seizures. It is clear that a different conclusion would have been reached if the information in issue had been obtained by less intrusive means.
[Emphasis added.]
[16] In my opinion, the mere allegation of an infringement of section 8 is insufficient to establish irreparable harm. This Court’s interpretation of 143471 Canada Inc. in Canada (Attorney General) v. Canada (Information Commissioner) appears to me to be consistent with the opinions of the dissenting justices on the issue of irreparable harm. Thus, the applicant has not proven irreparable harm.
[17] This is even more clearly the case when we recall that the applicant’s participation in the proceedings before the Board Member was entirely voluntary. The applicant was not summoned to appear before the Board but did so of its own accord and can withdraw in the same way. While it is, of course, true that it has a viewpoint to put across, its participation is conditional on disclosure of the information requested by CSI and deemed relevant by the Board. Whether the financial information is relevant is an issue that will still be relevant at the hearing before the Board and on judicial review of its final decision, if occasion arises.
[18] The Court accordingly finds that the motion for a stay of proceedings must be dismissed with costs.
“J.D. Denis Pelletier”
J.A.
Certified true translation
Michael Palles
FEDERAL COURT OF CANADA
APPEAL DIVISION
SOLICITORS OF RECORD
DOCKET: A-380-05
STYLE OF CAUSE: GROUPE ARCHAMBAULT INC.
and
CMRRA/SODRAC INC.
and
BELL CANADA, CANADIAN ASSOCIATION OF
BROADCASTERS, CANADIAN CABLE
TELECOMMUNICATIONS ASSOCIATION,
CANADIAN RECORDING INDUSTRY ASSOCIATION,
MOONTAXI MEDIA INC., NAPSTER LLC, MUSICNET
INC., APPLE CANADA INC., REALNETWORKS INC.,
YAHOO ! INC., SIRIUS CANADA INC., ROGERS
WIRELESS INC., ASSOCIATION QUEBECOISE DE
L’INDUSTRIE DU DISQUE, DU SPECTACLE ET DE
LA VIDÉO (ADISQ) INC.
REASONS FOR ORDER: PELLETIER J.A.
DATED: October 14, 2005
WRITTEN SUBMISSIONS BY:
Marek Nitoslawski
Jean-Philippe Mikus For the Applicant
Julie A. Thorburn
Colette Matteau For the Respondents
SOLICITORS OF RECORD:
Fasken Martineau Du Moulin LLP. For the Applicant
Montréal, Quebec
Cassels Brock & Blackwell LLP.
Brodeau, Matteau, Poirier For the Respondents