Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada

2012 SCC 35

Supreme Court of Canada

Public Performance of Musical Works, Re

Rogers Communications Inc., Rogers Wireless Partnership, Shaw Cablesystems G.P., Bell Canada and TELUS Communications Company (Appellants) and Society of Composers, Authors and Music Publishers of Canada (Respondent) and CMRRA-SODRAC Inc., Cineplex Entertainment LP, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Apple Canada Inc. and Apple Inc. (Interveners)

McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis JJ.

Heard: December 6, 2011

Judgment: July 12, 2012

Docket: 33922

Counsel: Gerald L. Kerr-Wilson, Ariel A. Thomas, Julia Kennedy, for Appellants

Gilles Daigle, D. Lynne Watt, Paul Spurgeon, Henry Brown, Q.C., for Respondent

Casey M. Chisick (written), Timothy Pinos (written), Jason Beitchman (written), for Intervener, CMRRA-SODRAC Inc.

Tim Gilbert (written), Sana Halwani (written), Sundeep Chauhan (written), for Intervener, Cineplex Entertainment LP

Jeremy de Beer (written), David Fewer (written), for Intervener, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic

Michael Koch (written), for Interveners, Apple Canada Inc. and Apple Inc.

Headnote

Intellectual property --- Copyright — Copyright Board — Tariff hearings

Collective society of composers, authors and publishers of music filed tariffs for various uses of musical works constituting, in their view, communication of musical works to public over Internet — Objections were filed — Copyright Board established tariff for years 1996 to 2006 — Application for judicial review by companies providing online music services was dismissed — Applicants appealed — Appeal was allowed in respect of downloads for reasons set out in companion case and dismissed in respect of music streamed from Internet — Although they occurred between online music provider and individual consumer in point-to-point fashion, transmissions of musical works in this case, where they constituted “communications”, could be nothing other than communications “to the public” — Through commercial activities of online music services, works in question had potential of being put in possession of aggregation of customers — Customers requesting streams were not members of narrow group but “the public” — In these circumstances, transmission of any file containing musical work, starting with first, from only service’s website to customer’s computer, at customer’s request, constituted communicating work to public by telecommunication.

Administrative law --- Standard of review — Correctness

Collective society of composers, authors and publishers of music filed tariffs for various uses of musical works constituting, in their view, communication of musical works to public over Internet — Objections were filed — Copyright Board established tariff for years 1996 to 2006 — Application for judicial review by companies providing online music services was dismissed — Applicants appealed — Appeal allowed in part — By majority it was concluded that appropriate standard of review was correctness — Concurrent jurisdiction of board and court at first instance in interpreting Copyright Act rebutted presumption of reasonableness review of board’s decisions on questions of law under its home statute — Courts must be assumed to have same familiarity and expertise with statute as board — Issue in case had been argued by parties as pure question of law.

Propriété intellectuelle --- Droit d’auteur — Commission du droit d’auteur — Audiences sur les tarifs

Regroupement d’auteurs, de compositeurs et d’éditeurs de musique a déposé des projets tarifaires pour diverses utilisations d’oeuvres musicales qui constituaient, à ses yeux, une communication au public d’oeuvres musicales sur Internet — Objections ont été soulevées — Commission du droit d’auteur a établi des tarifs pour les années 1996 à 2006 — Demande de contrôle judiciaire déposée par les fournisseurs de services de musique en ligne a été rejetée — Requérants ont formé un pourvoi — Pourvoi a été accueilli relativement aux téléchargements pour les motifs exprimés dans un pourvoi connexe mais rejeté en ce qui concernait la transmission de musique en continu sur Internet — Même si elle intervenait point à point entre le service de musique en ligne et un consommateur individuel, la transmission d’oeuvres musicales considérée en l’espèce, lorsqu’elle constituait une « communication », ne pouvait être autre chose qu’une communication « au public » — En raison de l’activité commerciale du service de musique en ligne, les oeuvres en cause étaient susceptibles de se retrouver entre les mains d’un ensemble de consommateurs — Consommateurs qui demandaient des transmissions en continu ne faisaient pas partie d’un groupe restreint mais faisaient partie du « public » — Dans ces conditions, le fait de transmettre un fichier contenant une oeuvre musicale, du site Internet du fournisseur à l’ordinateur du consommateur, à la demande de ce dernier, équivalait dès la première fois à communiquer au public, par télécommunication, une oeuvre.

Droit administratif --- Norme de contrôle — Décision correcte

Regroupement d’auteurs, de compositeurs et d’éditeurs de musique a déposé des projets tarifaires pour diverses utilisations d’oeuvres musicales qui constituaient, à ses yeux, une communication au public d’oeuvres musicales sur Internet — Objections ont été soulevées — Commission du droit d’auteur a établi des tarifs pour les années 1996 à 2006 — Demande de contrôle judiciaire déposée par les fournisseurs de services de musique en ligne a été rejetée — Requérants ont formé un pourvoi — Pourvoi accueilli en partie — À la majorité, il a été décidé que la norme de contrôle applicable était celle de la décision correcte — Compétence concurrente conférée à la commission et à la cour de justice pour interpréter en première instance la Loi sur le droit d’auteur avait pour effet d’écarter la présomption selon laquelle la décision de la commission sur un point de droit rendue sous le régime de sa loi constitutive était assujettie à la norme de la raisonnabilité — Il faut supposer que la cour de justice et l’organisme administratif ont, à l’égard du texte législatif, une même connaissance approfondie et une même expertise — Parties ont présenté la question soulevée en l’espèce comme une pure question de droit.

Online music services provide catalogues of digital audio files. A consumer may download or stream the digital audio file containing the musical work to his or her computer or mobile phone. The collective society of composers, authors and publishers of music filed proposed tariffs in 1995 with the Copyright Board for various uses of musical works constituting communication of musical works to the public over the Internet. The board dealt with legal issues in Phase I and the tariffs in Phase II. The board established a tariff for the years 1996 to 2006. The board was of the opinion that downloads and streams came within the scope of the exclusive right of copyright holders to communicate to the public by telecommunications provided by the Copyright Act. The companies which provided online music services applied for judicial review of the decision. The Federal Court of Appeal unanimously dismissed the appeal. The companies appealed. In a companion case, the majority of the Court determined that musical works were not “communicated” by telecommunication when they were downloaded.

Held: The appeal was allowed in respect of downloads and dismissed in respect of music streamed from the Internet.

Per Rothstein J. (McLachlin C.J.C., LeBel, Deschamps, Fish, Cromwell, Moldaver, Karakatsanis JJ. concurring): Because of the unusual statutory scheme under which the board and the court may each have to consider the same legal question at first instance, it must be inferred that the legislative intent was not to recognize superior expertise of the board relative to the court with respect to such legal questions. This concurrent jurisdiction of the board and the court at first instance in interpreting the Act rebuts the presumption of reasonableness review of the board’s decisions on questions of law under its home statute. Courts must be assumed to have the same familiarity and expertise with the statute as the board. In the Supreme Court of Canada judgment on Phase I of the board’s decision, it was determined in a satisfactory manner that the standard of correctness should be the appropriate standard of review on questions of law arising on judicial review from the Copyright Board. The Court was asked to determine whether a point-to-point transmission could ever constitute a communication “to the public” within the meaning of s. 3(1)(f) of the Act. This was an extricable question of law.

The companies’ proposed rule that each transmission be analyzed in isolation would have the effect of excluding all interactive communications from the scope of the copyright holder’s exclusive rights to communicate to the public. Section 3(1)(f) is technology-neutral. Whether a business chooses to convey copyright protected content in a traditional “broadcasting” type fashion, or opts for newer approaches based on consumer choice and convenience, the end result was the same: the copyrighted work had been made available to an aggregation of individuals of the general public. Developments at the international level were consistent with this conclusion. Although they occur between the online music provider and the individual consumer in a point-to-point fashion, the transmissions of musical works in this case, where they constituted “communications”, could be nothing other than communications “to the public”. Following the online services’ business model, musical works were indiscriminately made available to anyone with Internet access to the online music services’ website. This meant that the customers requesting the streams were not members of a narrow group. They were “the public”. In these circumstances, the transmission of any file containing a musical work, starting with the first, from the online service’s website to the customer’s computer, at the customer’s request, constituted “communicat[ing] the work to the public by telecommunication “.

Per Abella J. (concurring): In the case of streams only, it was agreed that the board’s conclusion that a point-to-point communication from an online service provider, effected at the request of a customer, could be a communication to the public, ought not to be disturbed. The majority’s conclusion about how to approach the standard of review overcomplicated what should be a straightforward application of the reasonableness standard. Applying a correctness standard of review on the sole basis that a court might interpret the same statute took the court back to the pre-2008 focus on relative expertise between courts and tribunals and the view that courts prevailed whenever it came to questions of law. In concluding that the board’s concurrent jurisdiction with all federal and provincial courts in Canada warranted a correctness standard of review, the majority’s reasons had added a new exception of shared jurisdiction with the courts.

The fact that a court might in another case be asked to interpret the same provisions of the Act did not detract from the board’s particular familiarity and expertise with the provisions of the Act. Nor did it make this legislation any less of a home statute to the board. The view that a legal definition of “communicate to the public” under s. 3(1)(f) could be extricated from the context of the complex and interlocking facts and policies considered by the board in setting a tariff was unrealistic. Even if an aspect of the tribunal’s decision would otherwise attract a correctness standard, the decision as a whole should be reviewed on a deferential standard. Segmenting the definition of each word or phrase in a statutory provision into discrete questions of law was a re-introduction by another name of the unduly interventionist approach championed by the jurisdictional and preliminary question jurisprudence. The board’s conclusion that a music download was a communication to the public was a decision entirely within its mandate and specialized expertise, involving a complex tapestry of technology, fact and broadcast law and policy.

Des services de musique en ligne offrent des catalogues de fichiers audionumériques. Le consommateur peut télécharger ou se faire transmettre en continu sur son ordinateur ou son téléphone portable le fichier audionumérique contenant l’oeuvre musicale. En 1995, un regroupement d’auteurs, de compositeurs et d’éditeurs de musique a déposé des projets tarifaires auprès de la Commission du droit d’auteur pour diverses utilisations d’oeuvres musicales qui constituaient une communication au public d’oeuvres musicales sur Internet. La commission a traité des points de droit dans la décision de la première phase et de l’établissement des tarifs dans la décision de la deuxième phase. La commission a établi un tarif pour les années 1996 à 2006. La commission a estimé que le droit exclusif du titulaire du droit d’auteur de communiquer une oeuvre au public par télécommunication, prévu dans la Loi sur le droit d’auteur, s’appliquait au téléchargement et à la transmission en continu. Les fournisseurs de services de musique en ligne ont demandé le contrôle judiciaire de la décision. La Cour d’appel fédérale a rejeté l’appel à l’unanimité. Les fournisseurs ont formé un pourvoi. Dans un pourvoi connexe, les juges majoritaires ont conclu que les oeuvres musicales téléchargées ne sont pas « communiquées » par télécommunication.

Arrêt:Le pourvoi a été accueilli relativement aux téléchargements mais rejeté en ce qui concernait la transmission de musique en continu sur Internet.

Rothstein, J. (McLachlin, J.C.C, LeBel, Deschamps, Fish, Cromwell, Moldaver, Karakatsanis, JJ., souscrivant à son opinion) : Étant donné le caractère particulier du régime législatif en vertu duquel la commission et une cour de justice peuvent être respectivement appelées à statuer en première instance sur un même point de droit, il faut inférer que le législateur n’a pas voulu reconnaître à la commission une expertise supérieure à celle de la cour de justice en la matière. Cette compétence concurrente conférée à la commission et à la cour de justice pour interpréter en première instance la Loi a pour effet d’écarter la présomption selon laquelle la décision de la commission sur un point de droit rendue sous le régime de sa loi constitutive est assujettie à la norme de la raisonnabilité. Il faut supposer que la cour de justice et l’organisme administratif ont, à l’égard du texte législatif, une même connaissance approfondie et une même expertise. Dans un jugement de la Cour suprême du Canada au sujet de la décision de la première phase rendue par la commission, on a conclu de manière satisfaisante que la norme de la décision correcte est celle qui convient au contrôle judiciaire de la décision de la Commission du droit d’auteur sur un point de droit. La Cour était appelée à décider s’il était même possible qu’une transmission point à point constitue une communication « au public » au sens de l’art. 3(1)f) de la Loi. Il s’agissait d’une question de droit manifeste.

La règle dont les fournisseurs préconisaient l’application de telle sorte que chacune des transmissions soit examinée isolément aurait pour effet de soustraire toute communication interactive au respect du droit exclusif du titulaire du droit d’auteur de communiquer son oeuvre au public. L’article 3(1)f) est neutre sur le plan technologique. Qu’une entreprise choisisse de transmettre un contenu protégé selon le mode traditionnel de la « radiodiffusion » ou qu’elle opte pour une nouvelle technologie axée sur ce qui plaît ou convient à l’utilisateur, le résultat est en fin de compte le même : l’oeuvre protégée est mise à la disposition d’un groupe de personnes faisant partie du grand public. Les changements survenus dans le monde confirmaient cette conclusion. Même si elle intervient point à point entre le service de musique en ligne et un consommateur individuel, la transmission d’oeuvres musicales considérée en l’espèce, lorsqu’elle constituait une « communication », ne pouvait être autre chose qu’une communication « au public ». Dans le cas d’un service de musique en ligne, les oeuvres musicales étaient indistinctement mises à la disposition de quiconque avait accès à son site Internet. Dès lors, le consommateur qui demandait la transmission en continu ne faisait pas partie d’un groupe restreint. Il faisait seulement partie du « public ». Dans ces conditions, le fait de transmettre un fichier contenant une oeuvre musicale, du site Internet du fournisseur à l’ordinateur du consommateur, à la demande de ce dernier, équivalait dès la première fois à « communiquer au public, par télécommunication, une oeuvre ».

Abella, J. (soucrivant à l’opinion des juges majoritaires) : Dans le cas de la transmission en continu, on était d’accord pour dire qu’il n’y avait pas lieu de modifier la conclusion de la commission selon laquelle la communication point à point effectuée par le fournisseur de services en ligne à la demande du client pouvait constituer une communication au public. Dans leur analyse de la norme de contrôle applicable, les juges majoritaires compliquaient à outrance ce qui devrait être en fait un cas simple d’application de la norme de la raisonnabilité. Appliquer la norme de la décision correcte pour la seule raison qu’une cour de justice pourrait être appelée à interpréter la même loi ramenait la cour à la situation qui prévalait avant 2008 où l’on s’attachait à l’expertise relative du décideur administratif et de la cour, et où l’on considérait que toute question de droit ressortissait aux cours de justice. En concluant que la compétence que se partagent la commission et l’ensemble des cours de justice provinciales et fédérales du Canada justifiait l’application de la norme de la décision correcte, les juges majoritaires créaient une nouvelle exception, celle de la compétence concurrente.

La possibilité qu’une cour de justice soit appelée à interpréter les mêmes dispositions de la Loi dans une autre affaire n’enlevait pas à la commission sa connaissance approfondie de la Loi ni son expertise dans l’application de celle-ci. La Loi n’en demeurait pas moins sa loi constitutive. Il paraissait irréaliste de dégager la portée juridique des mots « communiquer au public » que l’on retrouve à l’art. 3(1)f) du contexte constitué des faits et des politiques à la fois complexes et interdépendants dont la commission tenait compte pour fixer un tarif. Même lorsqu’un aspect de la décision administrative était par ailleurs assujetti à la norme de la décision correcte, les motifs dans leur ensemble devraient faire l’objet d’un contrôle suivant la norme de la décision raisonnable. Voir dans la définition de chaque mot ou expression figurant dans une disposition législative une question de droit distincte équivalait à ramener sous une autre appellation l’interventionnisme indû qui caractérisait la doctrine de la condition préalable liée à la compétence. La conclusion de la commission selon laquelle télécharger une oeuvre musicale équivalait à la communiquer au public ressortissait tout à fait à son mandat et à son expertise spécialisée, avec comme toile de fond un enchevêtrement complexe de technologies, de faits, ainsi que de dispositions législatives et de politiques en matière de radiodiffusion.

Table of Authorities

Cases considered by Rothstein J.:

A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 339 D.L.R. (4th) 428, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 2011 SCC 61, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, 52 Alta. L.R. (5th) 1, 28 Admin. L.R. (5th) 177, [2012] 2 W.W.R. 434, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654 (S.C.C.) — considered

Alliance Pipeline Ltd. v. Smith (2011), 328 D.L.R. (4th) 1, 56 C.E.L.R. (3d) 161, 16 Admin. L.R. (5th) 157, [2011] 1 S.C.R. 160, 2011 SCC 7, 2011 CarswellNat 202, 2011 CarswellNat 203, 102 L.C.R. 1, 412 N.R. 66 (S.C.C.) — referred to

Apple Computer Inc. v. Mackintosh Computers Ltd. (1986), 10 C.P.R. (3d) 1, 3 F.T.R. 118, 28 D.L.R. (4th) 178, 1986 CarswellNat 606, 1986 CarswellNat 705, [1987] 1 F.C. 173, 8 C.I.P.R. 153 (Fed. T.D.) — considered

Apple Computer Inc. v. Mackintosh Computers Ltd. (1987), 1987 CarswellNat 720, 1987 CarswellNat 887, 16 C.I.P.R. 15, [1988] 1 F.C. 673, 44 D.L.R. (4th) 74, 81 N.R. 3, 18 C.P.R. (3d) 129 (Fed. C.A.) — referred to

Apple Computer Inc. v. Mackintosh Computers Ltd. (1990), 1990 CarswellNat 736, 1990 CarswellNat 1027, 36 F.T.R. 159 (note), 110 N.R. 66, [1990] 2 S.C.R. 209, 71 D.L.R. (4th) 95, 30 C.P.R. (3d) 257 (S.C.C.) — referred to

C.A.P.A.C. v. CTV Television Network (1968), [1968] S.C.R. 676, 38 Fox Pat. C. 108, 55 C.P.R. 132, 68 D.L.R. (2d) 98, 1968 CarswellNat 26 (S.C.C.) — considered

Canada (Attorney General) v. Mowat (2011), 93 C.C.E.L. (3d) 1, D.T.E. 2011T-708, 337 D.L.R. (4th) 385, 26 Admin. L.R. (5th) 1, 2011 CarswellNat 4190, 2011 CarswellNat 4191, 2011 SCC 53, 422 N.R. 248, (sub nom. C.H.R.C. v. Canada (A.G.)) 2011 C.L.L.C. 230-043, (sub nom. Canada (Canadian Human Rights Commission) v. Canada (Attorney General)) [2011] 3 S.C.R. 471 (S.C.C.) — referred to

Canadian Admiral Corp. v. Rediffusion Inc. (1954), [1954] Ex. C.R. 382, 14 Fox Pat. C. 114, 20 C.P.R. 75, 1954 CarswellNat 5 (Can. Ex. Ct.) — considered

Canadian Wireless Telecommunications Assn. v. Society of Composers, Authors & Music Publishers of Canada (2008), 2008 CarswellNat 540, (sub nom. Canadian Wireless Telecomm. v. SOCAN) 371 N.R. 273, 290 D.L.R. (4th) 753, [2008] 3 F.C.R. 539, 2008 CarswellNat 8, 2008 CAF 6, 2008 FCA 6, 64 C.P.R. (4th) 343 (F.C.A.) — considered

Canadian Wireless Telecommunications Assn. v. Society of Composers, Authors & Music Publishers of Canada (2008), 2008 CarswellNat 3234, 2008 CarswellNat 3235, 390 N.R. 390 (note), [2008] 2 S.C.R. vi (note) (S.C.C.) — referred to

Cartoon Network LP, LLLP v. CSC Holdings, Inc. (2008), 536 F.3d 121 (U.S. C.A. 2nd Cir.) — considered

CCH Canadian Ltd. v. Law Society of Upper Canada (1999), 179 D.L.R. (4th) 609, 169 F.T.R. 1, 72 C.R.R. (2d) 139, 2 C.P.R. (4th) 129, 1999 CarswellNat 2123, [2000] 2 F.C. 451, 1999 CarswellNat 3080 (Fed. T.D.) — referred to

CCH Canadian Ltd. v. Law Society of Upper Canada (2002), 18 C.P.R. (4th) 161, 212 D.L.R. (4th) 385, 224 F.T.R. 111 (note), 289 N.R. 1, [2002] 4 F.C. 213, 2002 FCA 187, 2002 CarswellNat 1000, 2002 CAF 187, 2002 CarswellNat 2841 (Fed. C.A.) — referred to

CCH Canadian Ltd. v. Law Society of Upper Canada (2004), 236 D.L.R. (4th) 395, 317 N.R. 107, 30 C.P.R. (4th) 1, 2004 CarswellNat 446, 2004 CarswellNat 447, 2004 SCC 13, [2004] 1 S.C.R. 339, 247 F.T.R. 318 (note), [2004] 3 F.C.R. 241 at 244 (S.C.C.) — distinguished

Compo Co. v. Blue Crest Music Inc. (1979), [1980] 1 S.C.R. 357, 1979 CarswellNat 640, 45 C.P.R. (2d) 1, 105 D.L.R. (3d) 249, (sub nom. Blue Crest Music Inc. v. Compo Co.) 29 N.R. 296, 1979 CarswellNat 640F (S.C.C.) — referred to

Doré c. Québec (Tribunal des professions) (2012), (sub nom. Doré v. Barreau du Québec) 428 N.R. 146, 34 Admin. L.R. (5th) 1, 2012 CarswellQue 2048, 2012 CarswellQue 2049, 2012 SCC 12, (sub nom. Doré v. Barreau du Québec) 343 D.L.R. (4th) 193 (S.C.C.) — considered

Entertainment Software Assn. v. Society of Composers, Authors & Music Publishers of Canada (2012), 2012 SCC 34, 2012 CarswellNat 2376, 2012 CarswellNat 2377 (S.C.C.) — referred to

Galerie d’Art du Petit Champlain inc. c. Théberge (2002), (sub nom. Théberge v. Galerie d’art du Petit Champlain inc.) 285 N.R. 267, (sub nom. Théberge v. Galerie d’Art du Petit Champlain inc.) 210 D.L.R. (4th) 385, 23 B.L.R. (3d) 1, 2002 CarswellQue 306, 2002 CarswellQue 307, 2002 SCC 34, (sub nom. Théberge v. Galerie d’Art du Petit Champlain inc.) 17 C.P.R. (4th) 161, [2002] 2 S.C.R. 336 (S.C.C.) — considered

Housen v. Nikolaisen (2002), 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, 2002 CarswellSask 178, 2002 CarswellSask 179, 2002 SCC 33, 30 M.P.L.R. (3d) 1, 219 Sask. R. 1, 272 W.A.C. 1, [2002] 2 S.C.R. 235 (S.C.C.) — followed

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65 (S.C.C.) — followed

Public Performance of Musical Works, Re (2007), 2007 CarswellNat 3466, 2007 CarswellNat 3467, 61 C.P.R. (4th) 353 (Copyright Bd.) — considered

Robertson v. Thomson Corp. (2006), 2006 SCC 43, 2006 CarswellOnt 6182, 2006 CarswellOnt 6183, 353 N.R. 104, 274 D.L.R. (4th) 138, 52 C.P.R. (4th) 417, [2006] 2 S.C.R. 363, 217 O.A.C. 332 (S.C.C.) — followed

Shaw Cablesystems G.P. v. Society of Composers, Authors & Music Publishers of Canada (2010), 2010 CarswellNat 3112, 2010 FCA 220, 14 Admin. L.R. (5th) 159, 2010 CAF 220, 86 C.P.R. (4th) 239, 323 D.L.R. (4th) 42, 2010 CarswellNat 5932, 409 N.R. 102 (F.C.A.) — referred to

Society of Composers, Authors & Music Publishers of Canada v. Canadian Assn. of Internet Providers (1999), (sub nom. SOCAN Statement of Royalties, Public Performance of Musical Works 1996, 1997, 1998 (Tariff 22, Internet), Re) 1 C.P.R. (4th) 417, 1999 CarswellNat 3173, 1999 CarswellNat 3174 (Copyright Bd.) — referred to

Society of Composers, Authors & Music Publishers of Canada v. Canadian Assn. of Internet Providers (2004), (sub nom. SOCAN v. Canadian Assn. of Internet Providers) 240 D.L.R. (4th) 193, 2004 SCC 45, 2004 CarswellNat 1919, 2004 CarswellNat 1920, 322 N.R. 306, (sub nom. Socan v. Canadian Assn. of Internet Providers) [2004] 2 S.C.R. 427, (sub nom. SOCAN v. Canadian Assn. of Internet Providers) 32 C.P.R. (4th) 1 (S.C.C.) — followed

Cases considered by Abella J.:

A.C.T.R.A. v. Canadian Broadcasting Corp. (1995), 27 Admin. L.R. (2d) 1, (sub nom. Canadian Broadcasting Corp. v. Canada (Labour Relations Board)) 95 C.L.L.C. 210-009, (sub nom. Canadian Broadcasting Corp. v. Canada (Labour Relations Board)) 177 N.R. 1, (sub nom. Canadian Broadcasting Corp. v. Canada (Labour Relations Board)) 121 D.L.R. (4th) 385, (sub nom. Canadian Broadcasting Corp. v. Canada (Labour Relations Board)) [1995] 1 S.C.R. 157, 1995 CarswellNat 265, 1995 CarswellNat 701 (S.C.C.) — considered

A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 339 D.L.R. (4th) 428, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 2011 SCC 61, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, 52 Alta. L.R. (5th) 1, 28 Admin. L.R. (5th) 177, [2012] 2 W.W.R. 434, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654 (S.C.C.) — considered

Alliance Pipeline Ltd. v. Smith (2011), 328 D.L.R. (4th) 1, 56 C.E.L.R. (3d) 161, 16 Admin. L.R. (5th) 157, [2011] 1 S.C.R. 160, 2011 SCC 7, 2011 CarswellNat 202, 2011 CarswellNat 203, 102 L.C.R. 1, 412 N.R. 66 (S.C.C.) — considered

Alticor Inc. v. Nutravite Pharmaceuticals Inc. (2005), 2005 CarswellNat 2249, 2005 FCA 269, 257 D.L.R. (4th) 60, 2005 CAF 269, 2005 CarswellNat 3465, 42 C.P.R. (4th) 107 (F.C.A.) — referred to

Bell v. Ontario (Human Rights Commission) (1971), 18 D.L.R. (3d) 1, 1971 CarswellOnt 156, [1971] S.C.R. 756, 1971 CarswellOnt 156F (S.C.C.) — considered

Canada (Attorney General) v. Mowat (2011), 93 C.C.E.L. (3d) 1, D.T.E. 2011T-708, 337 D.L.R. (4th) 385, 26 Admin. L.R. (5th) 1, 2011 CarswellNat 4190, 2011 CarswellNat 4191, 2011 SCC 53, 422 N.R. 248, (sub nom. C.H.R.C. v. Canada (A.G.)) 2011 C.L.L.C. 230-043, (sub nom. Canada (Canadian Human Rights Commission) v. Canada (Attorney General)) [2011] 3 S.C.R. 471 (S.C.C.) — considered

Carrier Sekani Tribal Council v. British Columbia (Utilities Commission) (2010), 325 D.L.R. (4th) 1, 406 N.R. 333, (sub nom. Rio Tinto Alcon Inc. v. Carrier Sekani Tribal Council) [2010] 4 C.N.L.R. 250, (sub nom. Rio Tinto Alcon Inc. v. Carrier Sekani Tribal Council)) [2010] 2 S.C.R. 650, 2010 CarswellBC 2867, 2010 CarswellBC 2868, 2010 SCC 43, (sub nom. Rio Tinto Alcon Inc. v. Carrier Sekani Tribal Council) 225 C.R.R. (2d) 75, 11 Admin. L.R. (5th) 246, 96 R.P.R. (4th) 1, [2010] 11 W.W.R. 577, 9 B.C.L.R. (5th) 205, 54 C.E.L.R. (3d) 1, 293 B.C.A.C. 175, 496 W.A.C. 175 (S.C.C.) — considered

Chamberlain Group Inc. v. Lynx Industries Inc. (2010), 379 F.T.R. 270 (Eng.), 2010 CarswellNat 4902, 2010 FC 1287, 89 C.P.R. (4th) 122, 2010 CF 1287, 2010 CarswellNat 5671 (F.C.) — referred to

Doré c. Québec (Tribunal des professions) (2012), (sub nom. Doré v. Barreau du Québec) 428 N.R. 146, 34 Admin. L.R. (5th) 1, 2012 CarswellQue 2048, 2012 CarswellQue 2049, 2012 SCC 12, (sub nom. Doré v. Barreau du Québec) 343 D.L.R. (4th) 193 (S.C.C.) — considered

Entertainment Software Assn. v. Society of Composers, Authors & Music Publishers of Canada (2012), 2012 SCC 34, 2012 CarswellNat 2376, 2012 CarswellNat 2377 (S.C.C.) — referred to

Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) (2012), 428 N.R. 107, 2012 SCC 10, 2012 CarswellNS 124, 2012 CarswellNS 125, 31 Admin. L.R. (5th) 179, 343 D.L.R. (4th) 385, 94 M.P.L.R. (4th) 1 (S.C.C.) — considered

Housen v. Nikolaisen (2002), 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, 2002 CarswellSask 178, 2002 CarswellSask 179, 2002 SCC 33, 30 M.P.L.R. (3d) 1, 219 Sask. R. 1, 272 W.A.C. 1, [2002] 2 S.C.R. 235 (S.C.C.) — considered

Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339 (S.C.C.) — considered

Mattel U.S.A. Inc. v. 3894207 Canada Inc. (2006), 2006 CarswellNat 1400, 2006 CarswellNat 1401, 49 C.P.R. (4th) 321, (sub nom. Mattel Inc. v. 3894207 Canada Inc.) 348 N.R. 340, (sub nom. Mattel Inc. v. 3894207 Canada Inc.) 268 D.L.R. (4th) 424, 2006 SCC 22, (sub nom. Mattel Inc. v. 3894207 Canada Inc.) [2006] 1 S.C.R. 772, 53 Admin. L.R. (4th) 1 (S.C.C.) — considered

Molson Breweries, A Partnership v. John Labatt Ltd. (2000), 2000 CarswellNat 178, 2000 CarswellNat 1754, 180 F.T.R. 99 (note), 5 C.P.R. (4th) 180, 252 N.R. 91, (sub nom. Molson Breweries v. John Labatt Ltd.) [2000] 3 F.C. 145 (Fed. C.A.) — considered

N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 CarswellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340 (S.C.C.) — referred to

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65 (S.C.C.) — considered

Ryan v. Law Society (New Brunswick) (2003), 2003 SCC 20, 2003 CarswellNB 145, 2003 CarswellNB 146, 223 D.L.R. (4th) 577, 48 Admin. L.R. (3d) 33, 302 N.R. 1, 257 N.B.R. (2d) 207, 674 A.P.R. 207, (sub nom. Law Society of New Brunswick v. Ryan) [2003] 1 S.C.R. 247, 31 C.P.C. (5th) 1 (S.C.C.) — considered

Society of Composers, Authors & Music Publishers of Canada v. Canadian Assn. of Internet Providers (2004), (sub nom. SOCAN v. Canadian Assn. of Internet Providers) 240 D.L.R. (4th) 193, 2004 SCC 45, 2004 CarswellNat 1919, 2004 CarswellNat 1920, 322 N.R. 306, (sub nom. Socan v. Canadian Assn. of Internet Providers) [2004] 2 S.C.R. 427, (sub nom. SOCAN v. Canadian Assn. of Internet Providers) 32 C.P.R. (4th) 1 (S.C.C.) — considered

Toronto (City) v. C.U.P.E., Local 79 (2003), 232 D.L.R. (4th) 385, 9 Admin. L.R. (4th) 161, [2003] 3 S.C.R. 77, 17 C.R. (6th) 276, 2003 SCC 63, 2003 CarswellOnt 4328, 2003 CarswellOnt 4329, 311 N.R. 201, 2003 C.L.L.C. 220-071, 179 O.A.C. 291, 120 L.A.C. (4th) 225, 31 C.C.E.L. (3d) 216 (S.C.C.) — considered

VIA Rail Canada Inc. v. Canadian Transportation Agency (2007), 2007 SCC 15, 2007 CarswellNat 608, 2007 CarswellNat 609, 360 N.R. 1, 279 D.L.R. (4th) 1, (sub nom. Council of Canadians with Disabilities v. Via Rail Canada Inc.) 59 C.H.R.R. D/276, 59 Admin. L.R. (4th) 1, (sub nom. Council of Canadians with Disabilities v. VIA Rail Canada Inc.) [2007] 1 S.C.R. 650 (S.C.C.) — considered

Statutes considered by Rothstein J.:

Barreau, Loi sur le, L.R.Q., c. B-1

en général — referred to

Canada-United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65

s. 61 — referred to

s. 62 — referred to

Canadian Human Rights Act, R.S.C. 1985, c. H-6

Generally — referred to

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

Generally — referred to

s. 2 “telecommunication” — considered

s. 3(1) — considered

s. 3(1)(f) — considered

Statutes considered by Abella J.:

Administrative Tribunals Act, S.B.C. 2004, c. 45

Generally — referred to

Barreau, Loi sur le, L.R.Q., c. B-1

en général — referred to

Canadian Human Rights Act, R.S.C. 1985, c. H-6

s. 53(2)(c) — referred to

s. 53(2)(d) — referred to

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

Generally — referred to

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

Generally — referred to

s. 3(1) — considered

s. 3(1)(f) — considered

Ontario Human Rights Code, 1961-62, S.O. 1961-62, c. 93

Generally — referred to

Trade-marks Act, R.S.C. 1985, c. T-13

s. 6 — considered

Treaties considered by Rothstein J.:

Berne Convention for the Protection of Literary and Artistic Works, July 24, 1971; 828 U.N.T.S. 221; S. Treaty Doc. No. 99-27

Article 11 — considered

Article 20 — considered

North American Free Trade Agreement, 1992, C.T.S. 1994/2; 32 I.L.M. 296,612

Article 1721(2) — considered

WIPO Copyright Treaty, 1996, 36 I.L.M. 65

Generally — referred to

Article 1(1) — considered

Article 8 — considered

Words and phrases considered:

download

[Per Rothstein J. (McLachlin C.J.C., LeBel, Deschamps, Fish, Cromwell, Moldaver, Karakatsanis JJ. concurring):] A download is the transmission over the Internet of a file containing data, such as a sound recording of a musical work, that gives the user a permanent copy of the file to keep as his or her own.

limited download

[Per Rothstein J. (McLachlin C.J.C., LeBel, Deschamps, Fish, Cromwell, Moldaver, Karakatsanis JJ. concurring):] A limited download allows the copy to be used as long as the user’s subscription is paid up.

stream

[Per Rothstein J. (McLachlin C.J.C., LeBel, Deschamps, Fish, Cromwell, Moldaver, Karakatsanis JJ. concurring):] A stream is a transmission of data that allows the user to listen to or view the content transmitted at the time of the transmission, resulting only in a temporary copy of the file on the user’s hard drive.

Termes et locutions cités :

téléchargement

[Rothstein, J. (McLachlin, J.C.C, LeBel, Deschamps, Fish, Cromwell, Moldaver, Karakatsanis, JJ., souscrivant à son opinion):] On entend par téléchargement la transmission sur Internet d’un fichier de données, tel l’enregistrement sonore d’une oeuvre musicale, dont l’utilisateur conserve une copie permanente.

téléchargement limité

[Rothstein, J. (McLachlin, J.C.C, LeBel, Deschamps, Fish, Cromwell, Moldaver, Karakatsanis, JJ., souscrivant à son opinion):] Le téléchargement limité permet à l’abonné d’utiliser la copie tant qu’il acquitte le coût de son abonnement.

transmission en continu

[Rothstein, J. (McLachlin, J.C.C, LeBel, Deschamps, Fish, Cromwell, Moldaver, Karakatsanis, JJ., souscrivant à son opinion):] La transmission en continu est une transmission de données permettant d’entendre ou de voir le contenu au moment de la transmission; elle ne permet que le stockage d’une copie temporaire sur le disque dur de l’utilisateur.

APPEAL by companies providing online music services from judgment reported at Shaw Cablesystems G.P. v. Society of Composers, Authors & Music Publishers of Canada (2010), 2010 CarswellNat 3112, 2010 FCA 220, 14 Admin. L.R. (5th) 159, 2010 CAF 220, 86 C.P.R. (4th) 239, 323 D.L.R. (4th) 42, 2010 CarswellNat 5932, 409 N.R. 102 (F.C.A.).

POURVOI formé par les fournisseurs de services de musique en ligne à l’encontre d’un jugement publié à Shaw Cablesystems G.P. v. Society of Composers, Authors & Music Publishers of Canada (2010), 2010 CarswellNat 3112, 2010 FCA 220, 14 Admin. L.R. (5th) 159, 2010 CAF 220, 86 C.P.R. (4th) 239, 323 D.L.R. (4th) 42, 2010 CarswellNat 5932, 409 N.R. 102 (F.C.A.).

Rothstein J.:

I. Introduction

1      Online music services offer permanent downloads, limited downloads and on-demand streams of files containing musical works. A download is the transmission over the Internet of a file containing data, such as a sound recording of a musical work, that gives the user a permanent copy of the file to keep as his or her own. A limited download allows the copy to be used as long as the user’s subscription is paid up. A stream is a transmission of data that allows the user to listen to or view the content transmitted at the time of the transmission, resulting only in a temporary copy of the file on the user’s hard drive. The Copyright Board was of the opinion that downloads and streams, among other uses of music that it examined as part of the certification process of a proposed tariff for the communication of musical works over the Internet, come within the scope of the exclusive right of copyright holders to communicate to the public by telecommunication provided by the Copyright Act, R.S.C. 1985, c. C-42 (the “Act”). Accordingly, it found that a claim for communication royalties by the holders of copyright in the communicated works was well founded, in addition to any reproduction royalties received when a work is copied through the Internet ((2007), 61 C.P.R. (4th) 353 (Copyright Bd.) [Public Performance of Musical Works, Re] (”Tariff 22.A”). On appeal, the Federal Court of Appeal agreed (2010 FCA 220, 409 N.R. 102 (F.C.A.)).

2      The sole issue in this appeal is the meaning of the phrase “to the public” in s. 3(1)(f) of the Act. The online music services brought this appeal on the basis that their uses of music do not engage the right to communicate to the public by telecommunication in s. 3(1)(f) because they do not come within the scope of the phrase “to the public”. The issue of whether downloads can be “communication[s]” within the meaning of s. 3(1)(f) was left to be determined in the companion case Entertainment Software Assn. v. Society of Composers, Authors & Music Publishers of Canada, 2012 SCC 34 (S.C.C.) (”ESA”). In ESA, a majority of this Court determined that musical works are not “communicated” by telecommunication when they are downloaded. This conclusion affects this appeal. The question of whether the online music services engage the exclusive right to “communicate ... to the public by telecommunication” by offering downloads to members of the public has now become moot. However, the ESA did not contest the Board’s conclusion that a stream constitutes a “communication” within the meaning of s. 3(1)(f) of the Act. As a result, the remaining issue here is whether, based on CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339 (S.C.C.) (”CCH”), such communication of protected works nevertheless does not engage the exclusive right to communicate to the public because a point-to-point transmission from the website of an online music service to any individual customer is a private communication.

II. Facts and Procedural History

3      The appellants, Rogers Communications Inc., Rogers Wireless Partnership, Shaw Cablesystems G.P., Bell Canada and Telus Communications Company, offer online music services. Online music services provide catalogues of digital audio files that consumers can browse at their convenience. A consumer may select a song or an album and download or stream the digital audio file containing the musical work to his or her computer or mobile phone, or both.

4      The respondent, Society of Composers, Authors, and Music Publishers of Canada (”SOCAN”), is a collective society of composers, authors and publishers of music. It administers the right to perform in public and the right to communicate to the public by telecommunication the works covered by its members’ copyrights. It files proposed tariffs with the Board and collects licence royalties, as set in tariffs certified by the Board, on behalf of its members.

5      The issue in the present appeal is now whether streaming of files from the Internet triggered by individual users constitutes communication “to the public” of the musical works contained therein by online music services who make the files available to the users for streaming.

6      These proceedings involve proposed tariffs first filed by SOCAN in 1995 for various uses of musical works constituting, in SOCAN’s view, communication of musical works to the public over the Internet. There were objections to the filed proposals. In 1996, the Board decided to deal with legal issues separately from the determination of the actual tariffs. The first step was to “determine which activities on the Internet, if any, constitute a protected use [of SOCAN’s repertoire of music] targeted in the tariff” (Society of Composers, Authors & Music Publishers of Canada v. Canadian Assn. of Internet Providers (1999), 1 C.P.R. (4th) 417 (Copyright Bd.) (Tariff 22” decision), at p. 424). Issued on October 27, 1999, the Board termed this its Phase I decision, dealing with legal and jurisdictional issues. Some of its determinations are directly relevant to this appeal. The Tariff 22 decision was ultimately appealed to this Court, albeit on different issues. However, in Society of Composers, Authors & Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427 (S.C.C.) (”SOCAN v. CAIP”), at para. 30, Binnie J. noted the Board’s interpretation of the phrase “to the public”, which was that a communication may be to the public when it is made to individual members of the public, regardless of whether they receive it at the same or at different times (Tariff 22 decision, at p. 435). He found that this particular issue was “no longer contested.”

7      After this Court’s decision in SOCAN v. CAIP, the Board proceeded to Phase II of the process to establish a tariff for the communication of musical works over the Internet for the years 1996 to 2006. In these proceedings, the Appellants argued both before the Board and subsequently on judicial review, that a point-to-point transmission of a musical work is not a communication “to the public”. This argument is in large part based on CCH and on the finding in that case that fax transmissions of copyrighted works by the Great Library at Osgoode Hall to its patrons were private communications.

8      The Board rejected this argument in its decision issued on October 18, 2007 (”Tariff 22.A” decision). The Tariff 22.A decision reiterates the Board’s earlier-stated view that communications to individual members of the public through downloads or streams requested by them at different times are communications “to the public”. Accordingly, finding SOCAN’s claim to be valid in law, the Board proceeded to establish the tariffs it considered appropriate.

9      The appellants’ application for judicial review was unanimously dismissed by the Federal Court of Appeal. Pelletier J.A., writing for the court, considered that the application should be reviewed on the standard of reasonableness and found the Board’s determination of what constitutes a “communication to the public” under the Act to be reasonable.

III. Analysis

A. Standard of Review

10      The appropriate standard for reviewing the Board’s determinations on points of law was considered by Binnie J. in SOCAN v. CAIP. In concluding that the correctness standard must apply, he wrote, at para. 49:

There is neither a preclusive clause nor a statutory right of appeal from decisions of the Copyright Board. While the Chair of the Board must be a current or retired judge, the Board may hold a hearing without any legally trained member present. The Copyright Act is an act of general application which usually is dealt with before courts rather than tribunals. The questions at issue in this appeal are legal questions.

[Emphasis added.]

11      Since that decision, this Court has substantially revised the appropriate approach to judicial review. New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), made clear that an administrative body interpreting and applying its home statute should normally be accorded deference on judicial review. See also Canada (Attorney General) v. Mowat, 2011 SCC 53, [2011] 3 S.C.R. 471 (S.C.C.) (”Canada (CHRC)”), at para. 16, and Alliance Pipeline Ltd. v. Smith, 2011 SCC 7, [2011] 1 S.C.R. 160 (S.C.C.), at para. 26. In A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61, [2011] 3 S.C.R. 654 (S.C.C.), at para. 39, the Court held that “[w]hen considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness.” By setting up a specialized tribunal to determine certain issues the legislature is presumed to have recognized superior expertise in that body in respect of issues arising under its home statute or a closely related statute, warranting judicial review for reasonableness.

12      As stated by Binnie J. in SOCAN v. CAIP, the core of the Board’s mandate is “the working out of the details of an appropriate royalty tariff” (para. 49). Nevertheless, in order to carry out this mandate, the Board is routinely called upon to ascertain rights underlying any proposed tariff. In this, it is construing the Act, its home statute.

13      However, as Binnie J. noted in SOCAN v. CAIP, the Act is a statute that will also be brought before the courts for interpretation at first instance in proceedings for copyright infringement. The court will examine the same legal issues the Board may be required to address in carrying out its mandate. On appeal, questions of law decided by the courts in these proceedings would be reviewed for correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.), at para. 8.

14      It would be inconsistent for the court to review a legal question on judicial review of a decision of the Board on a deferential standard and decide exactly the same legal question de novo if it arose in an infringement action in the court at first instance. It would be equally inconsistent if on appeal from a judicial review, the appeal court were to approach a legal question decided by the Board on a deferential standard, but adopt a correctness standard on an appeal from a decision of a court at first instance on the same legal question.

15      Because of the unusual statutory scheme under which the Board and the court may each have to consider the same legal question at first instance, it must be inferred that the legislative intent was not to recognize superior expertise of the Board relative to the court with respect to such legal questions. This concurrent jurisdiction of the Board and the court at first instance in interpreting the Copyright Act rebuts the presumption of reasonableness review of the Board’s decisions on questions of law under its home statute. This is consistent with Dunsmuir, which directed that “[a] discrete and special administrative regime in which the decision maker has special expertise” was a “facto[r that] will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied” (para. 55). Because of the jurisdiction at first instance that it shares with the courts, the Board cannot be said to operate in such a “discrete ... administrative regime”. Therefore, I cannot agree with Abella J. that the fact that courts routinely carry out the same interpretive tasks as the board at first instance “does not detract from the Board’s particular familiarity and expertise with the provisions of the Copyright Act” (para. 11). In these circumstances, courts must be assumed to have the same familiarity and expertise with the statute as the board. Accordingly, I am of the opinion that in SOCAN v. CAIP, Binnie J. determined in a satisfactory manner that the standard of correctness should be the appropriate standard of review on questions of law arising on judicial review from the Copyright Board (Dunsmuir, at para. 62).

16      I must also respectfully disagree with Abella J.’s characterization, at para. 5, of the holding in ATA as meaning that the “exceptions to the presumption of home statute deference are ... constitutional questions and questions of law of central importance to the legal system and outside the adjudicator’s specialized expertise”. Dunsmuir had recognized that questions which fall within the categories of constitutional questions and questions of general law that are both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise were to be reviewed on a correctness standard (Dunsmuir, at paras. 58 and 60). ATA simply reinforced the direction in Dunsmuir that issues that fall under the category of interpretation of the home statute or closely related statutes normally attract a deferential standard of review (ATA, at para. 39; Dunsmuir, at para. 54). My colleague’s approach would in effect mean that the reasonableness standard applies to all interpretations of home statutes. Yet, ATA and Dunsmuir allow for the exceptional other case to rebut the presumption of reasonableness review for questions involving the interpretation of the home statute.

17      My colleague refers to pre-Dunsmuir decisions for the proposition that shared jurisdiction at first instance does not prevent reasonableness review of a tribunal’s decision under its home statute. However, such precedents will only be helpful where they “determin[e] in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question” (Dunsmuir, at para. 62).

18      The recent examples raised by Justice Abella where reasonableness review was applied all involved bodies with exclusive primary jurisdiction under their home statute, constituting “discrete ... administrative regime[s]”. Canada (CHRC) concerned the Canadian Human Rights Act, R.S.C. 1985, c. H-6, which does not create shared primary jurisdiction between the administrative tribunal and the courts. In these circumstances, the Court simply found that the standard applicable on the facts of that case was the reasonableness standard and confirmed the presumptive rule that “if the issue relates to the interpretation and application of its own statute, ... the standard of reasonableness will generally apply” (para. 24 (emphasis added)). Doré c. Québec (Tribunal des professions), 2012 SCC 12 (S.C.C.), involved the judicial review of a decision of a disciplinary body under a professional Code of ethics of advocates, R.R.Q. 1981, c. B-1, applicable to lawyers. There was no question of the constitutionality of the provision in the Code of ethics. The question, rather, was whether the adjudicator, making his fact-specific determination in the circumstances of that case, had “act[ed] consistently with the values underlying the grant of discretion, including Charter values” (Doré, at para. 24). In any case, the adjudicator was operating as part of a discrete administrative regime with exclusive jurisdiction over disciplinary matters under the Code of ethics.

19      I wish to be clear that the statutory scheme under which both a tribunal and a court may decide the same legal question at first instance is quite unlike the scheme under which the vast majority of judicial reviews arises. Concurrent jurisdiction at first instance seems to appear only under intellectual property statutes where Parliament has preserved dual jurisdiction between the tribunals and the courts. However, I leave the determination of the appropriate standard of review of a tribunal decision under other intellectual property statutes for a case in which it arises. Nothing in these reasons should be taken as departing from Dunsmuir and its progeny as to the presumptively deferential approach to the review of questions of law decided by tribunals involving their home statute or statutes closely connected to their function.

20      It should be equally clear that the Board’s application of the correct legal principles to the facts of a particular matter should be treated with deference, as are the decisions of this nature by trial judges on appellate review. However, I cannot agree with Abella J. that the question arising in this appeal is a question of mixed fact and law (para. 74). The issue in this case has been argued by the parties as a pure question of law. The Court is asked to determine whether a point-to-point transmission can ever constitute a communication “to the public” within the meaning of s. 3(1)(f) of the Copyright Act (A.F. at para. 2). This is not a “questio[n] of mixed fact and law [that] involve[s] applying a legal standard to a set of facts” (Housen v. Nikolaisen, at para. 26); it is an extricable question of law.

B. Can a Point-to-Point Transmission Effected at the Request of the Recipient Be a Communication “to the Public”?

(1) Arguments of the Parties and Relevant Legislative Provisions

21      Before this Court, the appellants maintain that a point-to-point communication by telecommunication of a discrete copy of a musical work is not a communication to the public, regardless of whether another copy of the same work is transmitted to a different customer at a different time. They argue that “the [Federal Court of Appeal’s] decision is directly contrary to ... CCH”, where “all three Courts concluded that the Great Library’s facsimile service did not infringe the right to communicate to the public by telecommunication — based on analyzing whether each transmission was a communication to the public” (A.F., at paras. 8, 45 (emphasis in original)). The appellants further support their position by reference to the legislative history of s. 3(1)(f) of the Act and U.S. authorities. SOCAN views the decisions of the Board and of the F.C.A. as correct and consistent with relevant international copyright conventions.

22      The legal question in this appeal involves the interpretation of s. 3 of the Act. The right to communicate to the public by telecommunication is set out in s. 3(1)(f) of the Act.

3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right ...

. . . . .

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,

. . . . .

and to authorize any such acts.

23      Section 2 broadly defines “telecommunication” as “any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system”. There is no dispute in this appeal that the communications in issue are “telecommunications” within the meaning of the Copyright Act.

(2) The Precedent in CCH: Interpreting “to the Public”

24      The words “to the public” within the meaning of s. 3(1)(f) of the Act were considered in CCH. The Great Library offered the service of faxing reported judgments and excerpts of other legal materials to individual lawyers at the lawyer’s request. The publishers holding copyrights in the transmitted works argued that the fax transmissions of copies of their works to individual lawyers were communications to the public by telecommunication by the Great Library. Contrasting this situation with telecommunications in the context of subscription or pay-per-view television, at trial, Gibson J. found no communication to the public since “the telecommunications, by facsimile, emanated from a single point and were each intended to be received at a single point” ([2000] 2 F.C. 451 (Fed. T.D.) [CCH Canadian Ltd. v. Law Society of Upper Canada], at para. 167).

25      The conclusion was affirmed on appeal by the Federal Court of Appeal (2002 FCA 187, [2002] 4 F.C. 213 (Fed. C.A.) [CCH Canadian Ltd. v. Law Society of Upper Canada]) and this Court. This Court, as did the F.C.A., held that “transmission of a single copy to a single individual is not a communication to the public”: CCH (SCC), at para. 78; CCH (FCA), at paras. 101 and 253). Both sets of reasons in the Federal Court rely on the ordinary meaning of the phrase “to the public”, as well as the definition of “public” in art. 1721(2) of North American Free Trade Agreement, Can. T.S. 1994 No. 2 (”NAFTA”), to conclude that “to be ‘to the public’ a communication must be targeted at an aggregation of individuals, which is more than a single person but not necessarily the whole public at large” (Linden J.A. at para. 100) (emphasis added). This Court agreed with the F.C.A.’s conclusion (para. 78).

26      However, this Court expressly limited its ruling to the facts in CCH. McLachlin C.J. wrote:

The fax transmission of a single copy to a single individual is not a communication to the public. This said, a series of repeated fax transmissions of the same work to numerous different recipients might constitute communication to the public in infringement of copyright. However, there was no evidence of this type of transmission having occurred in this case.

On the evidence in this case, the fax transmissions were not communications to the public.

Emphasis added; [paras. 78-79.]

(3) A Disagreement Based on Perspective

27      Both parties in this appeal rely on CCH in support of their respective positions. They disagree, however, on the meaning of the caveat in CCH that “a series of repeated fax transmissions of the same work to numerous different recipients might constitute communication to the public in infringement of copyright”. The appellants argue that all three courts in CCH ruled that each transmission must be analyzed on its own, as a separate transaction, regardless of whether another communication of the same work to a different customer may occur at a later point in time. They submit that a “series of repeated fax transmissions of the same work to numerous different recipients might constitute communication to the public in infringement of copyright” only where the series of transmissions to multiple users originate from a single act by the sender. They provide the example of multiple fax transmissions occurring successively as a result of a decision by the sender to fax to multiple recipients (”a broadcast fax” (A.F., at para. 70)). This is distinguishable in their view from discrete point-to-point transmissions which result from multiple unrelated acts by the sender. In SOCAN’s view, there is no requirement in CCH that the series of transmissions originate from a single act of the sender.

28      The disagreement is based on perspective. Where the appellants argue that we must consider the recipient of each transmission, SOCAN and the decisions below focused on the sender’s activities in communicating a given work over time.

(4) Transmissions Must Be Looked at in Context

29      In my respectful view, the appellants’ proposition is untenable. Such a rule would produce arbitrary results. For example, where a copyright-protected work is sent to 100 randomly selected members of the general public by way of a single email with multiple recipients, on the appellants’ approach, this would constitute a communication “to the public”. However, under the same approach, the sender could avoid infringing copyright simply by executing the same task through sending separate e-mails to each of the 100 recipients. If the nature of the activity in both cases is the same, albeit accomplished through different technical means, there is no justification for distinguishing between the two for copyright purposes.

30      Focusing on each individual transmission loses sight of the true character of the communication activity in question and makes copyright protection dependant on technicalities of the alleged infringer’s chosen method of operation. Such an approach does not allow for principled copyright protection. Instead, it is necessary to consider the broader context to determine whether a given point-to-point transmission engages the exclusive right to communicate to the public. This is the only way to ensure that form does not prevail over substance.

31      Sharlow J.A. addressed this issue in Canadian Wireless Telecommunications Assn. v. Society of Composers, Authors & Music Publishers of Canada, 2008 FCA 6, [2008] 3 F.C.R. 539 (F.C.A.), leave to appeal refused [2008] 2 S.C.R. vi (note) (S.C.C.) (”CWTA”), holding that a person offering members of the public the opportunity to download ringtones for their mobile phones thereby communicates the musical works contained in the ringtones to the public. She wrote that this approach

is consistent with the language of [s. 3(1)(f) of the Act] and its context. It also accords with common sense. If a wireless carrier were to transmit a particular ringtone simultaneously to all customers who have requested it, that transmission would be a communication to the public. It would be illogical to reach a different result simply because the transmissions are done one by one, and thus at different times. [para. 43]

(5) The Appellants’ Interpretation Would Exclude All On-Demand Transmissions

32      In oral argument, counsel for the appellants seemed to go somewhat beyond the mere technicality of the transmissions by looking at the intention of the sender in accomplishing a given transmission. In the case of a “blas[t]” communication, he pointed out that the sender has “take[n] it upon [himself] to send the work] out” (Transcript, at p. 24). By contrast, in the case of a one-to-one transmission, at least that from an online music service to a customer at the customer’s request, or from the Great Library in CCH to a patron, he argued that there is no intention that the same work ever be transmitted again “because it is entirely at the request of the consuming public” (p. 26). In the appellants’ view, this would justify differential treatment of the point-to-point transmission and the “blas[t]” communication.

33      With respect, this proposition too must be rejected, for the same reason that focusing the analysis on the recipient of a transmission rather than on the overall context of the communication produces results inconsistent with the true character of the communication. The facts of this case underscore the point. The Board found that “[d]ownloads are ‘targeted at an aggregation of individuals’” and are “offered to anyone with the appropriate device who is willing to comply with the terms” (para. 97). It is hardly possible to maintain that “there is no intention that the same work ever be transmitted again”.

34      In addition, the appellants’ proposed rule that each transmission be analyzed in isolation because each is initiated at the request of individual members of the public would have the effect of excluding all interactive communications from the scope of the copyright holder’s exclusive rights to communicate to the public and to authorize such communications. A stream is often effectuated at the request of the recipient. On-demand television allows viewers to request and view the desired program at the time of their choosing. By definition, on-demand communications — relating to the so-called “pull” technologies — are initiated at the request of the user, independently of any other user, and each individual transmission happens in a point-to-point manner. None of these telecommunications would be considered as being made “to the public” simply because the actual transmission occurs at the initiative and discretion of the consumer to accept the invitation to the public to access the content.

35      Nothing in the wording of s. 3(1)(f) of the Act implies such a limitation. A communication is not restricted to a purely non-interactive context.

(6) Section 3(1)(f) Is Not Limited to Traditional “Push” Technologies; It Is Technology-Neutral

36      The right to communicate to the public is historically linked to traditional media that operated on a broadcasting, or “push”, model. As pointed out by the appellants, the predecessor to s. 3(1)(f) guaranteed copyright holders an exclusive right to communicate literary, dramatic, musical or artistic works by radiocommunication. The predecessor section was introduced in 1931, implementing Article 11bis of the Berne Convention for the Protection of Literary and Artistic Works, 828 U.N.T.S. 221 (Rome Revision of 1928): J. S. McKeown, Fox on Canadian Law of Copyright and Industrial Designs, (4th ed. (loose-leaf), at p. 21:86; C.A.P.A.C. v. CTV Television Network, [1968] S.C.R. 676 (S.C.C.), at p. 681. Radio-communications were understood to include transmissions by microwave over the airwaves: Canadian Admiral Corp. v. Rediffusion Inc., [1954] Ex. C.R. 382 (Can. Ex. Ct.). As such, the radio-communication right extended to radio and traditional over-the-air television broadcasting, notably leaving transmissions by cable outside of copyright protection.

37      This technology-specific communication right was amended to the technologically neutral right to “communicate ... to the public by telecommunication” to reflect the obligations entered into by Canada under NAFTA (Canada-United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65, ss. 61 and 62). The change from radio-communication to telecommunication meant that Canadian cable companies which previously escaped any payment of royalties under the “radio-communication” right, were now caught by the Act: S. Handa, Copyright Law in Canada, (2002), at p. 320.

38      The historic relationship between the right to communicate to the public and broadcasting-type, “push” technologies, and the 1988 amendment in particular, is evidence that the Act has evolved to ensure its continued relevance in an evolving technological environment. The historic relationship does not support reading into the Act restrictions which are not apparent from and are even inconsistent with the neutral language of the Act itself.

39      In addition, this Court has long recognized in the context of the reproduction right that, where possible, the Act should be interpreted to extend to technologies that were not or could not have been contemplated at the time of its drafting: Apple Computer Inc. v. Mackintosh Computers Ltd. (1986), [1987] 1 F.C. 173 (Fed. T.D.), aff’d [1988] 1 F.C. 673 (Fed. C.A.), aff’d (S.C.C.). That the Act was to apply to new technologies was recently reaffirmed in Robertson v. Thomson Corp., [2006] 2 S.C.R. 363 (S.C.C.), at para. 49, per LeBel and Fish JJ.:

Media neutrality is reflected in s. 3(1) of the Copyright Act which describes a right to produce or reproduce a work “in any material form whatever”. Media neutrality means that the Copyright Act should continue to apply in different media, including more technologically advanced ones.... [I]t exists to protect the rights of authors and others as technology evolves.

Although the words “in any material form whatever” qualify the right to “produce or reproduce the work” in s. 3(1), the same principle should guide the application of the neutral wording of the right to “communicate ... to the public by telecommunication”. The broad definition of “telecommunication” was adopted precisely to provide for a communication right “not dependent on the form of technology” (SOCAN v. CAIP, at para. 90).

40      Ultimately, in determining the extent of copyright, regard must be had for the fact that “[t]he Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator” (Galerie d’Art du Petit Champlain inc. c. Théberge, 2002 SCC 34, [2002] 2 S.C.R. 336 (S.C.C.), at para. 30). This balance is not appropriately struck where the existence of copyright protection depends merely on the business model that the alleged infringer chooses to adopt rather than the underlying communication activity. Whether a business chooses to convey copyright protected content in a traditional, “broadcasting” type fashion, or opts for newer approaches based on consumer choice and convenience, the end result is the same. The copyrighted work has been made available to an aggregation of individuals of the general public.

(7) Developments at the International Level Are Consistent in Encompassing On-Demand Communications to the Public in Copyright Protection

41      Developments at the international level are consistent with this conclusion. Article 11bis of the Berne Convention, of which Canada is a party, sets out certain communication rights in literary and artistic works:

[Broadcasting and Related Rights]

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing:

(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;

(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one;

(iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

42      As stated earlier, s. 3(1)(f) is based on Article 11bis of the Berne Convention.

43      The advent of on-demand technologies, and the Internet in particular, led to questions as to whether such new telecommunication technologies were encompassed in the communication right existing under the Berne regime. While it was possible to interpret the relevant articles as extending to on-demand transmissions over the Internet, there was ambiguity: S. Ricketson and J. Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond, (2nd ed. 2006) vol. I, at para. 12.48. For example, the word “broadcasting” used in Article 11bis(1) “may well imply widely sending a communication simultaneously to many recipients” (para. 12.49).

44      In 1996, the WIPO Copyright Treaty (”WCT”) was entered into. The WCT is a special agreement within the meaning of Article 20 of the Berne Convention, which stipulates that “[t]he Governments of the countries of the [Berne] Union reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention....” (see Article 1(1) of the WCT).

45      Article 8 of the WCT reads:

[Right of Communication to the Public]

Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

46      Ricketson and Ginsburg comment on the meaning and legislative history of Article 8 in these terms:

The WCT’s principal innovation is its specification that the right of communication to the public includes a right of “making available to the public of [literary and artistic] works in such a way that members of the public may access those works from a place and at a time individually chosen by them”. This right targets on-demand transmissions (whether by wire or wireless means), for it makes clear that the members of the public may be separated both in space and in time.

[Emphasis added; para. 12.57.]

47      The WIPO Intellectual Property Handbook: Policy, Law and Use, chapter 5, “International Treaties and Conventions on Intellectual Property”, No. 489, (2nd ed. 2004), comments that the “WCT [...] clarifies that that right also covers transmissions in interactive systems ... (para. 5.226 (emphasis added)).

48      In the end, “[t]he core concept of ‘making available’ ... can fairly be called neither a reaffirmation nor a novelty, for it resolves an ambiguity as to whether the old communication to the public rights accommodated or excluded ‘pull technologies’.” (J. C. Ginsburg, “The (new?) right of making available to the public”, in D. Vaver and L. Bently, eds., Intellectual Property in the New Millenium: Essays in Honour of William R. Cornish (2004), 234, at p. 246.)

49      Canada has signed, but not yet ratified or legislatively adopted the WCT. Therefore, the WCT is not binding in this country. The WCT is only cited to demonstrate that the broad interpretation of s. 3(1)(f) of the Act, recognizing that a communication “to the public” subject to copyright protection may occur through point-to-point transmissions at the user’s request, is not out of step with Article 8 of the WCT and international thinking on the issue.

(8) American Jurisprudence

50      The appellants’ remaining argument is based on American jurisprudence. This argument must also be dismissed. They mainly rely on the decision of the Court of Appeals for the Second Circuit in Cartoon Network LP, LLLP v. CSC Holdings, Inc. (2008), 536 F.3d 121 (U.S. C.A. 2nd Cir. 2008), in which it was held that the potential audience of each point-to-point transmission must be considered to determine whether a given transmission is “to the public”. The Second Circuit Court of Appeals found in that case that the transmissions were not “to the public”.

51      This case is of no assistance to the appellants. The Court of Appeals for the Second Circuit relied on the specific language of the U.S. “transmit clause”. It held that the language of the clause itself directs considering who is “capable of receiving” a particular “transmission” or “performance”, and not of the potential audience of a particular “work” (p. 134). Quite to the contrary, our Copyright Act speaks more broadly of “communicat[ing a] work to the public”. This Court has recognized in the past important differences both in wording and in policy between Canadian and American copyright legislation. It has warned that “United States court decisions, even where the factual situations are similar, must be scrutinized very carefully” (see: Compo Co. v. Blue Crest Music Inc. (1979), [1980] 1 S.C.R. 357 (S.C.C.), at p. 367). The difference in statutory wording between the relevant provisions of the American legislation and of the Canadian Copyright Act is sufficient to render the U.S. decisions of no assistance in the interpretive exercise engaged here.

(9) Summary

52      These considerations are sufficient to dispose of the appellants’ argument that a point-to-point transmission is necessarily a private transaction outside of the scope of the exclusive right to communicate to the public. To quote Sharlow J.A., at para. 35 of CWTA,

[I]n determining whether paragraph 3(1)(f) applies to the transmission of a musical work in the form of a digital audio file, it is not enough to ask whether there is a one-to-one communication, or a one-to-one communication requested by the recipient. The answer to either of those questions would not necessarily be determinative because a series of transmissions of the same musical work to numerous different recipients may be a communication to the public if the recipients comprise the public, or a significant segment of the public.

CCH (SCC) determined that a “series of repeated ... transmissions of the same work to numerous different recipients” may constitute a communication “to the public” within the meaning of s. 3(1)(f) of the Act (CCH (SCC), at para. 78). Where such a series of point-to-point communications of the same work to an aggregation of individuals is found to exist, it matters little for the purposes of copyright protection whether the members of the public receive the communication in the same or in different places, at the same or at different times or at their own or the sender’s initiative.

IV. Application to the Facts — Whether Online Music Services “Communicate to the Public”

53      Although they occur between the online music provider and the individual consumer in a point-to-point fashion, the transmissions of musical works in this case, where they constitute “communications”, can be nothing other than communications “to the public”.

54      Online music services provide catalogues of musical works. It is open to any customer willing to pay the purchase price to download or stream the works on offer. The works in the catalogues could as a result be transmitted to large segments of the public — if not the public at large. Through the commercial activities of the online music services, the works in question have the potential of being put in the possession of an aggregation of customers. Indeed, the appellants’ business model is premised on the expectation of multiple sales of any given musical work. Achieving the highest possible number of online sales is the very raison d’être of online music services. The number of actual transmissions depends only on the commercial success of a given work. The necessary implication of this business model is that there will be a “series of repeated ... transmissions of the same work to numerous different recipients” (CCH (SCC), at para. 78). The conclusion that a communication “to the public” occurs is consistent with reality. As Professor Vaver explains,

If the content is intentionally made available to anyone who wants to access it, it is treated as communicated “to the public” even if users access the work at different times and places”.

(D. Vaver, Intellectual Property Law: Copyright, Patents, Trade-Marks, (2nd ed. 2011) at p. 173)

55      These facts are distinguishable from those in CCH and the holding in that case does not assist the appellants. The publishers alleging infringement in CCH had presented no evidence that the Great Library was communicating the same works in a serial fashion or that the Great Library had made the works generally available at any lawyer’s request. The Great Library’s employees examined and accordingly accepted or refused every request on its own merits, thus retaining control over access to the works.

56      Following the online music services’ business model, musical works are indiscriminately made available to anyone with Internet access to the online music service’s website. This means that the customers requesting the streams are not members of a narrow group, such as a family or a circle of friends. Simply, they are “the public”. In these circumstances, the transmission of any file containing a musical work, starting with the first, from the online service’s website to the customer’s computer, at the customer’s request, constitutes “communicat[ing] the work to the public by telecommunication”.

V. Conclusion

57      The appeal is allowed in respect of downloads for the reasons set out by the majority in Entertainment Software Assn. v. Society of Composers, Authors & Music Publishers of Canada, 2012 SCC 34 (S.C.C.), and dismissed in respect of music streamed from the Internet in accordance with these reasons. In view of the divided result, each party should bear its own costs.

Abella J.:

58      I agree with Justice Rothstein that in the case of streams only, not downloads, we ought not to disturb the Copyright Board’s conclusion that a point-to-point communication from an online service provider, effected at the request of a customer, can be a communication “to the public”. The focus of these concurring reasons, however, is on the standard of review.

59      In my respectful view, the majority’s conclusion about how to approach the standard of review overcomplicates what should be a straightforward application of the reasonableness standard. The Board, when interpreting its home statute in setting tariffs for the communication of new forms of digital media, should be accorded the same deference and be reviewed on the same standard as every other specialized tribunal in Canada.

60      Since New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.), this Court has unwaveringly held that institutionally expert and specialized tribunals are entitled to a presumption of deference when interpreting their home statute. Applying a correctness standard of review on the sole basis that a court might interpret the same statute, in my view, takes us back to the pre-Dunsmuir focus on relative expertise between courts and tribunals and the view that courts prevail whenever it comes to questions of law. This effectively drains expert tribunals of the deference and respect they are owed, as is reflected in the language of Society of Composers, Authors & Music Publishers of Canada v. Canadian Assn. of Internet Providers, [2004] 2 S.C.R. 427 (S.C.C.) (SOCAN v. CAIP), which the majority’s reasons rely on to conclude that the Board’s legal determinations should be reviewed on a correctness standard:

The Copyright Act is an act of general application which usually is dealt with before courts rather than tribunals. The questions at issue in this appeal are legal questions.... [T]he Board’s ruling... addresses a point of general legal significance far beyond the working out of the details of an appropriate royalty tariff, which lies within the core of the Board’s mandate.

[Emphasis added; para. 49.]

61      This Court recently held in A.T.A. v. Alberta (Information & Privacy Commissioner), [2011] 3 S.C.R. 654 (S.C.C.) (ATA) that deference on judicial review is presumed any time a tribunal interprets its home statute:

[U]nless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory interpretation subject to deference on judicial review.

[Emphasis added; para. 34.]

62      The existing exceptions to the presumption of home statute deference are, as noted in ATA, constitutional questions and questions of law of central importance to the legal system and outside the adjudicator’s specialized expertise (ATA, at para. 30; Dunsmuir, at paras. 58 and 60). The Court in ATA also questioned the continued existence of another exception: the problematic category of true questions of jurisdiction or vires (paras. 33-34).

63      In concluding that the Copyright Board’s concurrent jurisdiction with all federal and provincial courts in Canada warrants a correctness standard of review, the majority’s reasons have added a new exception — shared jurisdiction with courts. This is not even hinted at in Dunsmuir. Nor is anything about this new category obviously analogous to the other exceptions to the presumption of home statute deference, which are essentially legal questions beyond the quotidian work of a tribunal. Nor is it obvious to me why shared jurisdiction should be seen to displace Parliament’s attributed intention that a tribunal’s specialized expertise entitles it to be reviewed with restraint. It appears to spring full panoplied from a different brow.

64      We attribute expertise to a tribunal on the basis that Parliament has delegated decision making to it as an institutionally specialized body. Dunsmuir recognized the reality that “in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”: at para. 49, citing David J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93. This idea was reinforced by this Court in Khosa v. Canada (Minister of Citizenship & Immigration), [2009] 1 S.C.R. 339 (S.C.C.), where the majority held that express or implied statutory direction was not required before granting deference to a tribunal — deference flowed instead from the tribunal’s “day to day” statutory familiarity (para. 25).

65      The Board has specialized expertise in interpreting the provisions of the Copyright Act. The fact of shared jurisdiction does not undermine this expertise, the basis for institutional deference. The Board does not simply “wor[k] out ... the details of an appropriate royalty tariff”, despite what is suggested in SOCAN v. CAIP, at para. 49. It sets policies that collectively determine the rights of copyright owners and users, and plays an important role in achieving the proper balance between those actors: Margaret Ann Wilkinson, “Copyright, Collectives, and Contracts: New Math for Educational Institutions and Libraries”, in Michael Geist, ed., From “Radical Extremism” to “Balanced Copyright” (2010), 503, at p. 514.

66      The Board has highly specialized knowledge about the media technologies used to create and disseminate copyrighted works, such as the Internet, digital radio, satellite communications, as well as related economic issues: Copyright Board Canada, Performance Report for the period ending 31 March 2003 (online), at Section II: Departmental Context — Organization, Mandate and Strategic Outcomes. This specialized knowledge is precisely the kind of institutional expertise that Dunsmuir concluded was entitled to deference.

67      In the case before us, the Board is tasked with determining whether downloading a musical work constitutes a “communicat[ion]...to the public” within s. 3(1)(f) of the Copyright Act. This question involves examining many facets, including how music is accessed (e.g. through a stream versus a download), recent changes and trends in the way that users and consumers access music, and how all of this impacts on the ability of copyright owners to obtain compensation for their work.

68      In exercising its mandate, the Board must interpret the meaning of several provisions in the Copyright Act, including the exclusive rights of copyright owners listed in s. 3(1). The fact that a court might in another case be asked to interpret the same provisions of the Copyright Act does not detract from the Board’s particular familiarity and expertise with the provisions of the Copyright Act. Nor does it make this legislation any less of a home statute to the Board. The Act may sometimes be home to other judicial actors as part of their varied adjudicative functions, but their occasional occupancy should not deprive the Board of the deference it is entitled to as the permanent resident whose only task is to interpret and apply the Act.

69      The majority bases its conclusion that shared jurisdiction attracts a correctness standard on the possibility of inconsistent results stemming from a more deferential standard of review for the Board’s interpretation of the Act. But this Court in Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160 (S.C.C.), considered — and rejected — concerns over the possibility of multiple interpretations flowing from deference. Justice Fish noted that even prior to Dunsmuir, the standard of reasonableness was based on the idea that multiple valid interpretations of a statutory provision were inevitable, and ought not to be disturbed unless the tribunal’s decision was not rationally supported (paras. 38-39).

70      The majority’s reasons also suggest that concurrent jurisdiction between tribunals and courts is rare, and therefore no threat to the integrity of the “home statute” presumption. Yet tribunals often share jurisdiction with courts in interpreting and applying the same statutory provisions. Both the Trade-marks Opposition Board and the Federal Court, for example, interpret and apply s. 6 of the Trade-marks Act, R.S.C. 1985, c. T-13, to determine whether a trade-mark is “confusing”. The Board applies s. 6 in the context of opposition proceedings seeking to block registration of a trade-mark, while the Federal Court applies s. 6 in the context of actions for infringement or claims seeking the expungement of a registered trade-mark on the basis that it is invalid: see Chamberlain Group Inc. v. Lynx Industries Inc. (2010), 2010 FC 1287, 379 F.T.R. 270 (Eng.) (F.C.); Alticor Inc. v. Nutravite Pharmaceuticals Inc., 2005 FCA 269, 339 N.R. 56 (F.C.A.).

71      Notwithstanding this shared jurisdiction, the Trade-marks Opposition Board’s decisions are nevertheless reviewed on a reasonableness standard, as Rothstein J.A. concluded for the majority in Molson Breweries, A Partnership v. John Labatt Ltd., [2000] 3 F.C. 145 (Fed. C.A.):

Having regard to the Registrar’s expertise ... I am of the opinion that decisions of the Registrar, whether of fact, law or discretion, within his area of expertise, are to be reviewed on a standard of reasonableness simpliciter ... [unless] additional evidence is adduced in the Trial Division that would have materially affected the Registrar’s findings of fact....

[Emphasis added; para. 51.]

72      And in Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471 (S.C.C.), this Court applied a reasonableness standard to the Canadian Human Rights Tribunal’s conclusion that the terms “compensate... for any expenses incurred by the victim” in s. 53(2)(c) and (d) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, gave it the authority to award costs. Justices LeBel and Cromwell, for the Court, noted that even though the issue of “costs” could arise before other adjudicative bodies, including the courts, this was not an automatic reason to apply a correctness standard. Instead, the Court found that the question was within the Tribunal’s expertise, and therefore reviewable on a reasonableness standard of review:

There is no doubt that the human rights tribunals are often called upon to address issues of very broad import. But, the same questions may arise before other adjudicative bodies, particularly the courts....

[I]f the issue relates to the interpretation and application of its own statute, is within its expertise and does not raise issues of general legal importance, the standard of reasonableness will generally apply and the Tribunal will be entitled to deference.

[Emphasis added; paras. 23-24.]

73      There are other examples of the application of a reasonableness standard notwithstanding shared jurisdiction between tribunals and courts. Most recently, in Doré c. Québec (Tribunal des professions), 2012 SCC 12 (S.C.C.), this Court applied a reasonableness standard in determining whether a disciplinary board properly applied the Charter of Rights and Freedoms’ guarantee of freedom of expression in disciplining a lawyer under Quebec’s Code of ethics of advocates, R.R.Q. 1981, c. B-1. The fact that “freedom of expression” is concurrently interpreted by the courts did not in any way detract from the deference given to the discipline board in applying the Charter. If concurrent jurisdiction with the courts in interpreting and applying something as legally transcendent as the Charter does not affect the deference to which tribunals are entitled in interpreting their own mandate, surely it is hard to justify carving out copyright law for unique judicial “protection”.

74      Even if shared jurisdiction is accepted as a justification for reviewing the Board’s legal determinations on a standard of correctness, the Board’s mandate was to decide whether a particular activity — downloading a musical work — is the type of activity captured by the phrase “communicate ... to the public” in s. 3(1)(f) of the Copyright Act, thereby triggering a tariff. This is a question of mixed fact and law which, according to Dunsmuir, attracts deference. The view that we can extricate a legal definition of “communicate ... to the public” under s. 3(1)(f), from the context of the complex and interlocking facts and policies considered by the Board in setting a tariff, strikes me as unrealistic. The majority, however, sees two extricable legal questions: the definition of “communicate” and the definition of “to the public”: see also the companion appeal, Entertainment Software Assn. v. Society of Composers, Authors & Music Publishers of Canada, 2012 SCC 34 (S.C.C.).

75      ”Extricating” legal issues from a question of mixed fact and law is an appellate review concept that was developed in Housen v. Nikolaisen, [2002] 2 S.C.R. 235 (S.C.C.). In the context of judicial review, however, extricating legal issues — sometimes referred to as “segmentation” — presents several problems. Unlike trial courts, which have no expertise relative to appellate courts when interpreting a statute, most tribunals are granted particular mandates, giving them specialized expertise in interpreting and applying their home statute to a particular set of facts.

76      In Dunsmuir, while Bastarache and LeBel JJ. for the majority did not define “mixed fact and law” questions, they did discuss the issue of “separat[ing]” legal and factual issues at paras. 51-53:

Where the question is one of fact, discretion or policy, deference will usually apply automatically. We believe that the same standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated.

[Emphasis added; citations omitted; para. 53.]

77      This statement was recently affirmed by this Court in Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), [2010] 2 S.C.R. 650 (S.C.C.), at para. 65. In that decision, the Chief Justice held that the B.C. Utilities Commission’s conclusion that consultation with First Nations was not required for the approval of an Energy Purchase Agreement was a question of mixed fact and law (at para. 78). She declined to classify the Commission’s decision within the scheme of the Administrative Tribunals Act, S.B.C. 2004, c. 45, as a “constitutional question” or question of law on the one hand, or a finding of fact on the other. Instead, citing Dunsmuir, she held that the mixed question “falls between the legislated standards and thus attracts the common law standard of ‘reasonableness’” (para. 78).

78      Moreover, this Court has repeatedly held that the application of multiple standards of review to different aspects of a tribunal’s decision — one for questions of law and one for questions of fact — should be avoided, urging instead that the tribunal’s decision be reviewed as a whole. As Iacobucci J. explained for the majority in A.C.T.R.A. v. Canadian Broadcasting Corp., [1995] 1 S.C.R. 157 (S.C.C.) (CBC v. Canada):

While the [Canada Labour Relations Board] may have to be correct in an isolated interpretation of external legislation, the standard of review of the decision as a whole, if that decision is otherwise within its jurisdiction, will be one of patent unreasonableness. Of course, the correctness of the interpretation of the external statute may affect the overall reasonableness of the decision. Whether this is the case will depend on the impact of the statutory provision on the outcome of the decision as a whole.

[Emphasis added; para. 49.]

79      And in Ryan v. Law Society (New Brunswick), [2003] 1 S.C.R. 247 (S.C.C.), at para. 56, Iacobucci J. confirmed that what should be reviewed are the “reasons, taken as a whole” (see also N.L.N.U. v. Newfoundland & Labrador (Treasury Board), [2011] 3 S.C.R. 708 (S.C.C.), at para. 14.)

80      In other words, even if an aspect of the tribunal’s decision would otherwise attract a correctness standard, the decision “as a whole” should be reviewed on a deferential standard. As suggested by Iacobucci J. in CBC v. Canada (at para. 49 (emphasis added)), even when the tribunal incorrectly interprets an external statute, that would merely “affect the overall reasonableness of the decision”, as opposed to being a completely extricable error of law.

81      There are several other directives from this Court to the effect that the application of more than one standard of review to a tribunal’s decision is an exceptional practice. In Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77 (S.C.C.), LeBel J. warned:

This Court has recognized on a number of occasions that it may, in certain circumstances, be appropriate to apply different standards of deference to different decisions taken by an administrative adjudicator in a single case. This case provides an example of one type of situation where this may be the proper approach. It involves a fundamental legal question falling outside the arbitrator’s area of expertise. This legal question, though foundational to the decision as a whole, is easily differentiated from a second question on which the arbitrator was entitled to deference: the determination of whether there was just cause....

However, as I have noted above, the fact that the question adjudicated by the arbitrator in this case can be separated into two distinct issues, one of which is reviewable on a correctness standard, should not be taken to mean that this will often be the case. Such cases are rare; the various strands that go into a decision are more likely to be inextricably intertwined, particularly in a complex field such as labour relations, such that the reviewing court should view the adjudicator’s decision as an integrated whole.

[Emphasis added; citations omitted; paras. 75-76.]

82      This view was endorsed in VIA Rail Canada Inc. v. Canadian Transportation Agency, [2007] 1 S.C.R. 650 (S.C.C.), where the majority said:

The Agency is responsible for interpreting its own legislation, including what that statutory responsibility includes. The Agency made a decision with many component parts, each of which fell squarely and inextricably within its expertise and mandate. It was therefore entitled to a single, deferential standard of review.

[Emphasis added; para. 100.]

83      And in Mattel U.S.A. Inc. v. 3894207 Canada Inc., [2006] 1 S.C.R. 772 (S.C.C.), the Trade-marks Opposition Board concluded that use of the name “Barbie’s” for a small Montreal restaurant chain would not create confusion in the marketplace with the Mattel doll of the same name. On judicial review and at this Court, Mattel argued that the Board wrongly interpreted a provision of the Trade-marks Act defining “confusion”. Binnie J. for the majority refused to extricate a definitional legal question from the mixed question of whether the word “Barbie” created “confusion” in the marketplace. Concluding that the factual and legal issues were intertwined, he applied a deferential standard:

The determination of the likelihood of confusion requires an expertise that is possessed by the Board (which performs such assessments day in and day out) in greater measure than is typical of judges. This calls for some judicial deference to the Board’s determination....

. . . . .

While the appellant frames its argument as a challenge to the correctness of the interpretation given to s. 6 ... I think that in reality ... its challenge is directed to the relative weight to be given to the s. 6(5) enumerated and unenumerated factors. The legal issue is not neatly extricable from its factual context, but calls for an interpretation within the expertise of the Board.

[Emphasis added; paras. 36 and 39.]

84      Binnie J., rightly in my view, was reluctant to extricate a pure question of statutory interpretation from the Board’s overall conclusion that the name “Barbie” did not create “confusion”. The case before us raises the identical issue of reviewing statutory interpretation.

85      Prof. David Mullan, persuasively in my view, has also warned against segmentation. In his view, “[o]ver-willingness” to see a question as a “court” question rather than a “tribunal” question (i.e., jurisdictional questions, questions of law or statutory interpretation), “can lead to excessive and wrong-headed intervention” (p. 74):

In my view, it is quite inappropriate to place much, if any store in the context of a judicial review application on the fact that the tribunal might be resolving a “pure question of law” which will have “precedential value”. To see that as an indicator of a need for correctness review would be to undercut seriously the philosophy of deference that prevails in judicial review....

. . . . .

To the extent that segmentation frequently involves the extraction of overarching legal principles, it will have a tendency to promote correctness review or greater intervention.

[Emphasis added; pp. 77 and 79.]

86      The Board was not tasked with definitively or even separately defining the terms “communicat[ion]” and “to the public” in its decision about whether s. 3(1)(f) applied to downloading music. It is not clear to me that Parliament intended this phrase to be defined categorically at all, as opposed to contextually depending on the facts of each case.

87      Segmenting the definition of each word or phrase in a statutory provision into discrete questions of law is a re-introduction by another name — correctness — of the unduly interventionist approach championed by the jurisdictional and preliminary question jurisprudence, jurisprudence which this Court definitively banished in ATA. When that jurisprudence was in full flight, in Bell v. Ontario (Human Rights Commission), [1971] S.C.R. 756 (S.C.C.) (Bell (1971)), this Court held that the Ontario Human Rights Commission exceeded its jurisdiction when it defined the term “self-contained dwelling unit” within The Ontario Human Rights Code, 1961-62, S.O. 1961-62, c. 93, to include a boarding house. In Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10 (S.C.C.), this Court overturned Bell (1971) on the basis that it represented an unduly interventionist approach on the part of the reviewing courts:

Early judicial intervention ... allows for judicial imposition of a “correctness” standard with respect to legal questions that, had they been decided by the tribunal, might be entitled to deference .... [para. 36]

88      The Copyright Board’s conclusion that a music download is a “communicat[ion] ... to the public” was a decision entirely within its mandate and specialized expertise, involving a complex tapestry of technology, fact, and broadcast law and policy. Pulling a single legal thread from this textured piece and declaring it to be the determinative strand for deciding how the whole piece is to be assessed strikes me, with great respect, as an anomalous jurisprudential relapse.

Appeal allowed in part.