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Court File No.

A-259-17

FEDERAL COURT OF APPEAL

BETWEEN:

YORK UNIVERSITY

Appellant

- and -

THE CANADIAN COPYRIGHT LICENSING AGENCY


("ACCESS COPYRIGHT")

Respondent

- and —

UNIVERSITIES CANADA, CANADIAN ASSOCIATION OF UNIVERSITY


TEACHERS, and CANADIAN FEDERATION OF STUDENTS

Interveners

MOTION RECORD OF PROPOSED INTERVENER CANADIAN ASSOCIATION OF


RESEARCH LIBRARIES ("CARL") TO RECONSIDER
(Motion in Writing to Reconsider — Rules 369 and 397)

MACERA & JARZYNA LLP


1200-427 Laurier Avenue West
Ottawa, Ontario K1P 7YS
Howard P. Knopf (LSUC #19578F)
Tel: (613) 238-8173
Fax: (613) 235-2508
howard.knopf@macerajarzna.com
Solicitors for CARL
INDEX
Tab Page #
1. Notice of Motion, dated April 30, 2018 1
2. Written Representations, dated April 30, 2018 6
3. Authorities
York University v. The Canadian Copyright Licensing Agency et al
2018 FCA 81 A

Omar Samarraie v. The Minister of Citizenship and Immigration


2003 FCT 755 (F.C.T.D.) B

Vavilov v. Canada (Citizenship and Immigration)


2018 FCA 65 C

Copyright Act, R.S.C. 1985, Ch. C-42, as amended, s. 68.2 (1) D


TAB 'I
001

Court File No. A-259-17

FEDERAL COURT OF APPEAL

BETWEEN:

YORK UNIVERSITY

Appellant

- and -

THE CANADIAN COPYRIGHT LICENSING AGENCY


("ACCESS COPYRIGHT")

Respondent

- and —

UNIVERSITIES CANADA, CANADIAN ASSOCIATION OF UNIVERSITY


TEACHERS, and CANADIAN FEDERATION OF STUDENTS

Interveners

NOTICE OF MOTION OF PROPOSED INTERVENER CANADIAN ASSOCIATION


OF RESEARCH LIBRARIES ("CARL") TO RECONSIDER

(Motion in Writing to Reconsider — Rules 369 and 397)


002

NOTICE OF MOTION

(Motion in Writing to Reconsider — Rules 369 and 397)

TAKE NOTICE that the proposed intervener, Canadian Association of Research Libraries
(hereinafter "CARL") makes a motion to the Honourable Mr. Justice Wyman W. Webb of this
Court in writing pursuant to Rules 369 and 397 of the Federal Courts Rules.

THE MOTION IS FOR:

1. CARL respectfully asks this Honourable Court to make an order as follows:

a. That the Court reconsider its Reasons and Order dated April 20, 2018 and issue an
order permitting CARL to intervene in this appeal;

b. That CARL be granted leave to intervene on the "mandatory tariff" issue in the present
appeal by filing a factum not exceeding 15 pages and presenting oral argument not
exceeding a time limit to be determined;

c. That there be no costs of this motion payable to or by CARL or, in the event that CARL
is granted leave to intervene, in the Appeal; and,

d. That the Court permit such further and other relief as it may deem just.

THE GROUNDS FOR THE MOTION ARE:

2. With respect, the Court, in its Reasons for Order dated April 20, 2018, overlooked certain
aspects of the Notice of Appeal, of the trial decision and CARL's motion record in
concluding that CARL was raising a "new" issue with respect to the mandatory tariff issue;
and,

3. With respect, the Court overlooked the fact that Access Copyright itself did not suggest that
CARL had raised a new issue in this respect and that York University did not respond to
CARL's motion record.
003

4. Such other grounds as this Honourable Court may permit.

LEGISLATIVE PROVISIONS RELIED ON

5. Rules 109, 369 and 397 of the Federal Courts Rules

6. S. 68.2(1) of the Copyright Act, R.S.C. 1985, Ch. C-42,

THE FOLLOWING DOCUMENTARY EVIDENCE IS RELIED ON:

7. The Motion Record of CARL for leave to intervene filed March 9, 2018, the Response of
Access Copyright thereto filed March 26, 2018 and CARL's Reply filed on April 3, 2018 and
the Reply of Universities Canada dated February 16, 2018

8. This Notice of Motion.

9. The Order and Reasons for Order of this Honourable Court dated April 20, 2018.

10. Such further and other materials as counsel may advise and this Honourable Court may
permit.

DATED AT OTTAWA, April 30, 2018.


LL,
MACERA & JARZYNA LLP
1200-427 Laurier Avenue West
Ottawa, Ontario K1 P 7YS
Howard P. Knopf (LSUC #19578F)
Tel: (613) 238-8173
Fax: (613) 235-2508
howard.knopf@macerajarzna.com
Solicitors for CARL

To:

Federal Court of Appeal


90 Sparks St.
Ottawa, Ontario
KlA 0C9

And to:
004

OSLER, HOSKIN & HARCOURT LLP


100 King Street West
1 First Canadian Place
Suite 6200, P.O. Box 50
Toronto, ON M5X 1B8
attn. John C. Cotter
Tel: 416.862.5662
Fax: 416.862.6666
jcotter@osler.com
Solicitors for Appellant

And to:
Arthur B. Renaud
Barrister & Solicitor
40 Rivercrest Road
Toronto, ON M6H 4H3
TeI: 647.984.1049
a.b.renaud@gmail.com
ADDRESS FOR SERVICE:
Access Copyright
320-56 Wellesley St. W.
Toronto, ON M5S 2S3
Solicitor for the Respondent

McMillan LLP
David Kent
Brookfield Place, Suite 4400
181 Bay Street
Toronto, Ontario M5J 2T3
david.kent@mcmillan.ca
Jonathan O'Hara
World Exchange Plaza, Suite 2000
45 O'Connor Street
Ottawa, Ontario KIP 1A4
jonathan.ohara@mcmillan.ca
Solicitors for the Intervener, Universities Canada

Torys LLP
79 Wellington St. W., 30th Floor
Box 270, TD South Tower
Toronto, ON M5K 1N2
Fax: 416.865.7380
Andrew E. Bernstein
abernstein@torys.com
Tel. 416.865.7678
005

Sarah Whitmore
swhitmore@torys. corn
Tel. 416.865.7315
Solicitors for the Interveners,
Canadian Association of University Teachers and
Canadian Federation of Students
TAB 2
006

Court File No. A-259-17

FEDERAL COURT OF APPEAL

BETWEEN:

YORK UNIVERSITY

Appellant

- and -

THE CANADIAN COPYRIGHT LICENSING AGENCY


("ACCESS COPYRIGHT")

Respondent

- and —

UNIVERSITIES CANADA, CANADIAN ASSOCIATION OF UNIVERSITY


TEACHERS, and CANADIAN FEDERATION OF STUDENTS

Interveners

MOTION OF PROPOSED INTERVENER CANADIAN ASSOCIATION OF


RESEARCH LIBRARIES ("CARL") TO RECONSIDER

WRITTEN REPRESENTATIONS

(Motion in Writing to Reconsider — Rules 369 and 397)


007

OVERVIEW

1. These written representations are filed by the proposed Intervener, the Canadian Association
of Research Libraries ("CARL"), in support of a motion pursuant to Rule 397 of the Federal
Courts Rules for reconsideration of the Order of this Court by the Honourable Mr. Justice
Wyman W. Webb dated April 20, 2018 ("the Order"), which denied CARL's leave to intervene
in this appeal.

PART I: FACTS

2. On March 9, 2018 CARL applied for leave to intervene in the appeal from the judgment of the
Federal Court in Canadian Copyright Licensing Agency (Access Copyright) v. York University,
2017 FC 670. On March 26, 2018, Access Copyright filed a Response to the proposed
intervention, to which CARL replied on April 3, 2018. The Appellant, York University,
("York"), did not oppose CARL's proposed intervention.

3. By order of this Court dated April 20, 2018, together with the Reasons for Order of the same
date (the "Reasons"),' CARL's application for leave to intervene in the appeal was denied by
Webb J.A.

4. The Court, in para. 6 of its Reasons, quoted from York's Notice of Appeal as follows:

I. Introduction

1. Generally stated, this appeal relates to the following independent issues:

(a) The scope of fair dealing for the purposes of education - a user's right under
the Copyright Act. In particular, whether copies of extracts of published works

York University v. The Canadian Copyright Licensing Agency et al, 2018 FCA 81, CARL
Motion for Reconsideration Record ("CMRR"), Tab Af.
008

(e.g. a chapter from a, book) made for students' education are fair dealing, and
therefore not infringing copies, or whether compensation must be paid to rights
holders for such copies.

(b) Whether an interim tariff granted by the Copyright Board of Canada under its
interim decision making power is an approved tariff, and mandatory and
enforceable on an institution that does not consent to be bound by its terms.

II. Fair Dealing

2. The Trial Judge erred in concluding that reproductions falling within York's
Fair Dealing Guidelines do not constitute fair dealing pursuant to sections 29, 29.1
and/or 29.2 of the Copyright Act. Specifically, he misconstrued the second part of
the test for fair dealing (i.e., whether the dealing was fair) and/or altered that legal
test in the course of its application. These errors included the following:

(a) failing to recognize that fair dealing is a user's right of students enrolled at
York; and

(b) conflating the fairness factors enumerated by the Supreme Court of Canada
and relying on the same considerations to support conclusions under multiple
factors.

III. Interim Tariff

3. The trial judge erred in holding that:

(a) the Interim Tariff is mandatory and enforceable against York;

(b) an approved tariff is mandatory and binding on any person to whom it


pertains; and

(c) the defence that the Interim Tariff is not mandatory and enforceable was a
collateral attack on the Copyright Board's Interim Tariff decision.

(emphasis added)

5. In paragraph 11 of the Reasons, Webb J.A. wrote that he was "not satisfied that the issues that
[CARL] raises are issues that are within the scope of issues as raised in the notice of appeal."2

2 Ibid, para 11.


009

6. In paragraph 12 of the Reasons, Webb J.A. wrote that:

[12] In Ms. Owen's affidavit she states that:

58. Moreover, York's Notice of Appeal and its Statement of Issues in its
Memorandum both focus explicitly on whether the interim tariff is mandatory and
not whether approved tariffs are mandatory. Even if York has succeeded on its
narrow argument about the interim tariff or should do so in this Court on such a
narrow basis, it would ring hollow for the university community because the final
approved tariff from the Copyright Board, would still be mandatory....

59. Thus, it is still not clear that York will fully, forcefully and adequately address
the overall threshold issue of whether tariffs approved by the Copyright Board are
mandatory or merely whether the interim tariff is not mandatory. Moreover,
York's submissions on the mandatory tariff issue comprise only about five of the
30 pages in the York Memorandum.

(emphasis added)

7. In paragraph 13 of the Reasons, Webb J.A. wrote that:

[13] By acknowledging that York only addresses the interim tariff issue in its
Notice of Appeal, CARL is acknowledging that this is the only issue that will
be before this Court. Any arguments that CARL would wish to make in relation to
any final approved tariff are outside the issues that are before this Court and do
not justify granting CARL leave to intervene. (emphasis added)

8. The Court reasoned that, in the statements quoted above in paragraph 6, CARL acknowledged
that the interim tariff was the "only" issue before this Court. Accordingly, the Court explained,
"[a]ny arguments that CARL would wish to make in relation to any final approved tariff are
outside the issues that are before this Court and do not justify granting CARL leave to
intervene."3 (emphasis added)

9. The Court also made a similar comment with respect to Universities Canada's intervention,
explaining that "[i]t is difficult to link the arguments that relate to the final tariff (which is not
before this Court) or alternative remedies available to non-parties, to the issues as raised by
York in its notice of appeal."4 Nonetheless, the Court allowed Universities Canada's motion
for leave to intervene.

3 Ibid, para 6 (emphasis added).


4 Ibid, para 9
010

10. Although Access Copyright raised objections that certain issues addressed by CARL were new
issues and outside the scope of this appeal, no such objection was raised with respect to any
aspect of CARL's submissions with the respect to the "mandatory tariff" issue. On the
contrary, Access Copyright acknowledged in its Response to CARL's leave to intervene
motion that York had addressed the issue of "whether Copyright Board tariffs are mandatory
for users ... in its memorandum".5

11. Access Copyright also noted that "[w]hile York appeared to concede during oral argument
at trial that final tariffs are mandatory, it does not do so on appeal" (emphasis added) and
now takes the position that final tariffs are not mandatory.6

12. The Court further held that the other two issues that CARL proposed to address should it be
granted leave to intervene do not justify granting the leave. This motion for reconsideration
addresses only the first issue, which concerns the "mandatory tariff" issue.

PART II: POINTS IN ISSUE


13. The issue is whether the Court should reconsider its order of April 27, 2018 pursuant to Rule
397 and allow CARL to intervene in this appeal with respect to the "mandatory tariff' issue.

PART III: SUBMISSIONS


14. Rule 397 of the Federal Courts Rules reads as follows:

Motion to reconsider
397 (1) Within 10 days after the making of an order, or within such other time as
the Court may allow, a party may serve and file a notice of motion to request that
the Court, as constituted at the time the order was made, reconsider its terms on
the ground that
(a) the order does not accord with any reasons given for it; or
(b) a matter that should have been dealt with has been overlooked or
accidentally omitted.

5 Access Copyright Response to CARL motion record Written Representations March 26, 2018
para 38.
6 Ibid, para 41.
011

15. The jurisprudence under Rule 397 establishes that the issue on reconsideration is "whether
there was some matter the Court overlooked in reaching its decision and if so determine if the
overlooked matter changes its decision."7

16. Very recently, this Court, per Webb J.A., confirmed that, with respect to a motion for
reconsideration, "[i]n order for paragraph (b) to be applicable, there must have been some
matter that was overlooked or accidentally omitted. To be overlooked or accidentally omitted,
it must have been a matter of which the Court was aware or ought to have been aware."8

17. Accordingly, there must be:

• Some matter that the Court has overlooked or accidentally omitted;

• The Court was aware or ought to have been aware of the matter; and,

• The oversight or omission resulted in a different decision than the one the Court
would have arrived at if the matter had not been overlooked or omitted.

18. CARL respectfully submits that those three conditions apply in the present case:

• In reasoning that the "only" issue in this appeal is whether an "interim" tariff is
mandatory, this Court overlooked the fact that this appeal is not limited to the issue
of the interim tariff. The Court overlooked the fact that the broader issue of whether
approved tariffs, whether "interim" or "final", are mandatory is clearly and
explicitly a central issue in this appeal;

• The issue of whether approved tariffs are mandatory was an issue that the Court
was aware of, or ought to have been aware of; and

• But for this oversight, the Court would likely have reached a different conclusion
with respect to CARL's leave to intervene.

7 Omar Samarraie v. The Minister of Citizenship and Immigration, 2003 FCT 755 (F.C.T.D.) at
para 6. CMRR Tab B.
8 Vavilov v Canada (Citizenship and Immigration), 2018 FCA 65, para 4. CMRR Tab C.
012

A. The Court Overlooked a Matter: This Appeal Concerns the Issues of Both Interim
and Final Tariffs

19. The issue of whether "approved" tariffs (which by definition include "final" tariffs) are
mandatory is an issue in this appeal because York mentioned this issue explicitly in paragraphs
1(b) and 3(a) and 3(b) of its grounds of appeal, as quoted in paragraph 3 of the Reasons and as
noted in paragraph 4 above. According to York, this appeal raises two issues with respect to
tariffs. The first is whether the Interim Tariff is an "approved tariff" within the meaning of s
68.2(1) of the Copyright Act, and second, whether an "approved tariff' is mandatory on users.

20. Thus, the Court overlooked the fact that York itself defined two separate errors in its grounds
of appeal. One error is specific to the "interim tariff', and the other is the more general holding
that an "approved tariff' is mandatory.

21. York also treated these two issues as separate issues in its appeal Factum.9

22. Moreover, as stated at paragraph 12 of the Court's Reasons, CARL indeed indicated that
York's Notice of Appeal and Factum "focus" on the interim tariff. However, the Court
overlooked the fact that CARL did not argue that this was the only issue that will be before the
Court. Indeed, CARL pointed out at great length and numerous times that in its Notice of
Appeal York has finally raised the more general notion of "approved tariffs" and that it no
longer deals exclusively with the "interim tariff' issue.

23. With respect, while the Reasons quote paragraphs 58 and 59 of the Owen affidavit, the Court
overlooked the preceding paragraph of that affidavit, which clearly shows that CARL did not
state that the "interim tariff' is the "only" issue properly before this Court on appeal. Para 57
of the Owen affidavit states as follows:

57. While York challenges this holding [i.e., that all tariffs are mandatory] on
appeal, in CARL's opinion, its argument is incomplete, ambiguous, and clearly
secondary to York's concern with fair dealing. As documented below, it is clear
that York repeatedly asserted before the Federal Court that it was not
necessary to address the issue of whether final approved tariffs are
mandatory. York's attempt now to deal with the "mandatory tariff' issue
notably contrasts with its position at trial.

9 York appeal Factum, para. 24 and 75-92. CARL Motion Record Volume I Tab 2A.
013

(emphasis added)10

24. CARL has questioned the adequacy of York's approach to this threshold issue,11 pointed out
the ambiguity of York's position,12 and that York's inappropriate "focus" on the narrower issue
of "interim tariffs" could lead to an incorrect result and considerable further litigation.13

25. The Court has overlooked that in York's Notice of Appeal and its factum, it is now addressing
the issue of "approved tariffs" and not just "interim" tariffs, and that this now necessarily
includes the concept of "final" tariffs. CARL has not raised a new issue but has instead
indicated in detail how and why it wishes to deal differently and more fully and forcefully with
the issue of whether "approved" tariffs are mandatory, which necessarily includes a discussion
of "interim" and "final" tariffs.

26. The Court has overlooked the fact that the Copyright Act refers only to "approved" tariffs14 —
and does not speak of "interim" tariffs or "final tariffs" explicitly. Although it is common
ground that all "final" tariffs are "approved tariffs", the fundamental dispute in this case is
whether "approved tariffs" are mandatory. The question of whether the "interim tariff" is
mandatory arises only if "approved tariffs" are mandatory. S. 68.2(1) of the Copyright Acti5 is
quoted here for convenience:

68.2 (1) Without prejudice to 68.2 (1) La societe de gestion


any other remedies available peut, pour la periode
to it, a collective society mentionnee au tarif
may, for the period specified homologue, percevoir les
in its approved tariffs collect redevances qui y figurent et,
the royalties specified in the independamment de tout
tariff and, in default of their autre recours, le cas echeant,
payment, recover them in a

113Owen Affidavit, Carl Motion Record, Vol. I, Tab 2, para. 57.


" Owen Affidavit, Carl Motion Record, Vol. I, Tab 2, paras. 55 — 75.
12 Owen Affidavit, Carl Motion Record, Vol. I, Tab 2, paras. 7, 57.

13 Owen Affidavit, Carl Motion Record, Vol. I, Tab 2, paras. 58, 62, 66.

14 The Act also refers to tariffs as "certified" by the Copyright Board; however, that terminology
is not relevant for the purposes of this appeal. It is effectively synonymous with "final" as used
by the parties and CARL and means the issuance of tariff that is then published in the Canada
Gazette.
15 Copyright Act, R.S.C. 1985, Ch. C-42, as amended, s. 68.2(1). Also quoted in the Trial
Decision at para. 194. CARL Motion Record, Vol. II, Tab 3B.
014

court of competent en poursuivre le


jurisdiction. recouvrement en justice.

(emphasis added)

27. Nobody argues that an "interim tariff' could be mandatory even if an "approved tariff' is not.
Therefore, to decide whether to affirm or reverse the holding that the "Interim Tariff' is
mandatory, this Court must first decide whether the decision of the trial court that "approved
tariffs" are mandatory is correct.

28. The Court has overlooked the fact that in the trial decision under appeal, Justice Phelan himself
has confirmed that, in order to hold that the "interim tariff' is mandatory, the Court needed to
decide that (a) the "interim tariff' is an "approved tariff', and (b) "approved tariffs" are
mandatory. Justice Phelan's recognized that both issues were before him and that he had to
answer both. In para 6 of his decision, Justice Phelan wrote the following:

[6] The trial management process set out the specific issues as follows:

A. Main Action

1. The issues relating to whether the Interim Tariff is enforceable against York
are:

a) Whether Access can sue for amounts allegedly due under the Interim Tariff,
namely:

i) Is the Interim Tariff an "approved tariff" for the purposes of section 68.2(1)
of the Copyright Act?

(emphasis added)

29. Justice Phelan then answered both question in the positive, and held that the "interim tariff' is
an "approved tariff' and that both are mandatory:

[195] Considering the scheme of the Act, tariffs and the enforcement of tariffs
(both final and interim) are an integral part of the legislative scheme created by
Parliament for the collective administration of copyright.

Parliament recognized the difficulties copyright owners might face in enforcing


their rights individually against those who copied copyright protected works.

(emphasis added)
015

And,

[218] The Court has concluded that an approved tariff is a form of subordinate
legislation which is mandatory and binding on any person to whom it pertains.
There is no opting out.

(emphasis added)

30. Thus, Justice Phelan adopted Access Copyright's argument, which was based on the following
syllogism:
• The "Interim Tariff' is an "approved tariff';
• "Approved tariffs" (which necessarily include "final" tariffs) are, according to s.
68.2(1), mandatory; hence
• The "Interim Tariff' is mandatory.
York appeals all elements of this syllogism. Accordingly, the issue of whether "approved
tariffs" (which include "final" tariffs) is squarely an issue on appeal.

31. The Court has overlooked the fact that the taxonomy of "interim", "final" and "approved" is
not in controversy. The reference to "final" with respect to tariffs is not a new one introduced
by CARL, but is found on the record in several places. It originated in York's attempt to
distinguish between "interim" and "final" tariffs. The trial judge held that both are mandatory
and the issue is currently on appea1.16

32. The Court may also have overlooked the apparent inconsistency between its ruling at
paragraphs 8 and 9 of its reasons allowing leave to intervene to Universities Canada but
denying leave to intervene to CARL. Although the Court put some apparent restrictions on
Universities Canada intervention in respect of certain issues mentioned in paragraph 8 of the
Reasons (issues which CARL did not propose to address), the Court has allowed Universities
Canada to intervene with respect to the "nature of the Interim Tariff',17 which, as noted above,
is logically inseparable from the issue of whether "approved tariffs" are mandatory (and which
CARL did propose to address). With respect, this inconsistency may also mean that the Court's

16
E.g. notably in para. 195 of the Trial Decision. See above para. 28.
17 Universities Canada Reply Written Representations dated February 16, 2018 para. 27.
016

order does not accord with its reasons.18

33. In any event, it its respectfully submitted that any issues involving the terminology or
taxonomy of "interim", "final" and "approved" tariffs are substantive issues that should be
decided by the panel hearing this appeal and are not determinative of whether CARL should
be granted leave to intervene.

B. The Court Was Aware or Ought to Have Been Aware of the Overlooked Matter

34. The Court was aware or should have been aware that the Appeal concerns two issues about
tariffs because, as noted and documented above, the issues were identified by the trial Judge
and the parties as being whether the interim tariff is an approved tariff and, whether approved
tariffs (which include "final" tariffs) are mandatory. Indeed, the Court's own Reasons19 cite
the paragraphs from York's Notice of Appeal that mention those two separate issues.

The Court should have also been aware that this appeal is not limited to the issue of the interim
tariff because if approved tariffs, which are explicitly referred to the in the legislation (and
which include "final tariffs"), are not mandatory, then interim tariffs could not possibly be
mandatory. Therefore, the issue of whether "approved tariffs" are mandatory — the issue that
CARL sought to address — is central to this appeal and dispositive of it.

35. To summarize, the Court, with respect, has overlooked the matter that the issue of "final tariffs"
is not a new issue and is very much embedded in the overall issue of whether "approved tariffs"
are mandatory. No party has suggested that CARL has raised a new issue in this respect.
CARL' s submissions regarding the mandatory tariff issue are all "related to the proceeding".20
The thrust of CARL's submissions was that it needs to intervene because the Appellant, York,
did not fully and forcefully dealt with this at trial and cannot be counted upon to adequately do
so on appeal.

18 Rule 397(1)(a).
19 CMRR Tab 1.

20 Rule 109(2)(b).
017

C. The Court Would Likely Have Reached a Different Result Without the Oversight

36. With respect, if the Court had not overlooked the fact that the concept of "final" tariff is
included within that of "approved tariff' and that a key and threshold issue of this appeal is
whether an "approved tariff', which is referred to in the Notice of Appeal is mandatory, the
Court would presumably have granted CARL's motion for leave to intervene.

PART IV: ORDER REQUESTED AND SUBMISSIONS ON COSTS

37. CARL respectfully asks this Honourable Court to make an order as follows:

a. That the Court reconsider its Reasons and Order dated April 20, 2018 and issue an
order permitting CARL to intervene in this appeal;

b. That CARL be granted leave to intervene on the "mandatory tariff' issue in the present
appeal by filing a factum not exceeding 15 pages and presenting oral argument not
exceeding a time limit to be determined;

c. That there be no costs of this motion payable to or by CARL or, in the event that CARL
is granted leave to intervene, in the Appeal; and,

d. That the Court permit such further and other relief as it may deem just.

ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 30th day of April 2018.

r\r\
MACERA & JARZYNA LLP
1200-427 Laurier Avenue West
Ottawa, Ontario KIP 7YS
Howard P. Knopf (LSUC #19578F)
Tel: (613) 238-8173
Fax: (613) 235-2508
howard.lumpf@macerajarzna.com
Solicitors for CARL
018

TABLE OF AUTHORITIES

Authority Page
Cases
Omar Samarraie v. The Minister of Citizenship and Immigration, 2003 FCT 755 (F.C.T.D) 5
Vavilov v Canada (Citizenship and Immigration), 2018 FCA 65 5
York University v. The Canadian Copyright Licensing Agency et al, 2018 FCA 81 2
Statutes
Copyright Act, R.S.C. 1985, Ch. C-42, as amended, s. 68.2(1) 8
019

To:

Federal Court of Appeal


90 Sparks St.
Ottawa, Ontario
KlA 0C9

And to:

OSLER, HOSKIN & HARCOURT LLP


100 King Street West
1 First Canadian Place
Suite 6200, P.O. Box 50
Toronto, ON M5X 1B8
attn. John C. Cotter
Tel: 416.862.5662
Fax: 416.862.6666
'cotter ,osler.com
Solicitors for Appellant

And to:
Arthur B. Renaud
Barrister & Solicitor
40 Rivercrest Road
Toronto, ON M6H 4H3
TeI: 647.984.1049
a.b.renaud@gmail.com
ADDRESS FOR SERVICE:
Access Copyright
320-56 Wellesley St. W.
Toronto, ON M5S 2S3
Solicitor for the Respondent

McMillan LLP
David Kent
Brookfield Place, Suite 4400
181 Bay Street
Toronto, Ontario M5J 2T3
david.kent@mcmillan.ca
Jonathan O'Hara
World Exchange Plaza, Suite 2000
45 O'Connor Street
Ottawa, Ontario KlP 1A4
jonathan.ohara@mcmillan.ca
Solicitors for the Intervener, Universities Canada
020

Torys LLP
79 Wellington St. W., 30th Floor
Box 270, TD South Tower
Toronto, ON M5K 1N2
Fax: 416.865.7380
Andrew E. Bernstein
abernstein@torys.com
Tel. 416.865.7678
Sarah Whitmore
swhitmore@torys.com
Tel. 416.865.7315
Solicitors for the Interveners, Canadian Association of University Teachers and
Canadian Federation of Students
TAB 3
TAB A
Arbrrai Courf of Appi al Cour ?lir/Filet fa6rzile
Date: 20180420

Docket: A-259-17

Citation: 2018 FCA 81

Present: WEBB J.A.

BETWEEN:

YORK UNIVERSITY

Appellant

and

THE CANADIAN COPYRIGHT LICENSING AGENCY


("ACCESS COPYRIGHT")

Respondent

and

UNIVERSITIES CANADA,
CANADIAN ASSOCIATION OF UNIVERSITY TEACHERS AND
CANADIAN FEDERATION OF STUDENTS

Interveners

Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on April 20, 2018.

REASONS FOR ORDER BY: WEBB J.A.


Churl ofAppral b'appel ficbernie
Date: 20180420

Docket: A-259-17

Citation: 2018 FCA 81

Present: WEBB J.A.

BETWEEN:

YORK UNIVERSITY

Appellant

and

THE CANADIAN COPYRIGHT LICENSING AGENCY


("ACCESS COPYRIGHT")

Respondent

and

UNIVERSITIES CANADA,
CANADIAN ASSOCIATION OF UNIVERSITY TEACHERS AND
CANADIAN FEDERATION OF STUDENTS

Interveners

REASONS FOR ORDER


Page: 2

WEBB J.A.

[1] There are three motions that have been brought for leave to intervene in this appeal. The

first motion dated February 2, 2018 is brought by Universities Canada, an association

representing 96 universities from across Canada. The second motion dated March 8, 2018 is

brought by the Canadian Association of University Teachers (CAUT) and the Canadian

Federation of Students (CFS). CAUT is an organization that represents 70,000 teachers,

librarians, researchers and other academic professionals and staff. CFS is an organization

representing in excess of 650,000 members in 75 students' unions in all 10 provinces. The third

motion is brought by the Canadian Association of Research Libraries (CARL) which is an

organization that represents 31 research libraries at universities and federal government

institutions.

[2] Rule 109 of the Federal Courts Rules, SOR/98-106 (Rules) provides that:

109(1) The Court may, on motion, 109(1) La Cour peut, sur requete,
grant leave to any person to intervene autoriser toute personne a intervenir
in a proceeding. dans une instance.

(2) Notice of a motion under (2) L'avis d'une requete presentee


subsection (1) shall pour obtenir l'autorisation
d' intervenir:

(a) set out the full name and a) precise les nom et adresse de
address of the proposed la personne qui desire intervenir
intervener and of any solicitor et ceux de son avocat, le cas
acting for the proposed echeant;
intervener; and

(b) describe how the proposed b) explique de quelle maniere la


intervener wishes to participate personne desire participer a
in the proceeding and how that l' instance et en quoi sa
participation will assist the participation aidera a la prise
Page: 3

determination of a factual or d'une decision sur toute


legal issue related to the question de fait et de droit se
proceeding. rapportant a l'instance.

(3) In granting a motion under (3) La Cour assortit l'autorisation


subsection (1), the Court shall give d'intervenir de directives concernant :
directions regarding

(a) the service of documents; a) la signification de


and documents;

(b) the role of the intervener, b) le role de l'intervenant,


including costs, rights of appeal notamment en cc qui conceme
and any other matters relating to les &pens, les droits d'appel et
the procedure to be followed by toute autre question relative a la
the intervener. procedure a suivre.

[3] All of the proposed interveners and the respondent agree that the appropriate criteria to be

met to permit a person to intervene in a proceeding are as set out by Justice Rouleau in

Rothmans, Benson & Hedges Inc. v. Canada (Attorney General) (1989), [1990] 1 F.C. 74, at

79 and 80 (and affirmed on appeal ([1990] 1 F.C. 90, at 92)):

(1) Is the proposed intervenor directly affected by the outcome?

(2) Does there exist a justiciable issue and a veritable public interest?

(3) Is there an apparent lack of any other reasonable or efficient means to


submit the question to the Court?

(4) Is the position of the proposed intervenor adequately defended by one of


the parties to the case?

(5) Are the interests of justice better served by the intervention of the
proposed third party?

(6) Can the Court hear and decide the cause on its merits without the proposed
intervenor?
Page: 4

[4] This Court in Sports Maska Inc. v. Bauer Hockey Corp., 2016 FCA 44, confirmed that

these criteria will continue to apply in determining whether a person should be permitted to

intervene in a proceeding. In particular this Court noted that:

42 The criteria for allowing or not allowing an intervention must remain


flexible because every intervention application is different, i.e. different facts,
different legal issues and different contexts. In other words, flexibility is the
operative word in dealing with motions to intervene. In the end, we must decide
if, in a given case, the interests of justice require that we grant or refuse
intervention. Nothing is gained by adding factors to respond to every novel
situation which motions to intervene bring forward. In my view, the Rothmans,
Benson & Hedges factors are well tailored for the task at hand. More particularly,
the fifth factor, i.e. "[a]re the interests of justice better served by the intervention
of the proposed third party?" is such that it allows the Court to address the
particular facts and circumstances of the case in respect of which intervention is
sought. In my view, the Pictou Landing [Canada (Attorney General) v. Pictou
Landing First Nation, 2014 FCA 21, [2015] 2 F.C.R. 253] factors are simply an
example of the flexibility which the Rothmans, Benson & Hedges factors give to
a judge in determining whether or not, in a given case, a proposed intervention
should be allowed.

[5] In my view, in each of the three motions the critical factors are whether the position of

the proposed intervener will be adequately represented by one of the parties and whether it will

be in the interests of justice to allow the organization to intervene. As part of this determination,

it is important to review the issues that have been raised by York University (York) in the notice

of appeal. The organizations that are seeking to intervene will, if leave is granted, be interveners

and not parties to the appeal. The issues that they can raise will be restricted to the issues that

were raised by York in its notice of appeal.

[6] The grounds of appeal as identified by York that are relevant to these motions are as

follows:
Page: 5

I. Introduction

1. Generally stated, this appeal relates to the following independent issues:

(a) The scope of fair dealing for the purposes of education - a user's right
under the Copyright Act. In particular, whether copies of extracts of published
works (e.g. a chapter from a book) made for students' education are fair dealing,
and therefore not infringing copies, or whether compensation must be paid to
rights holders for such copies.

(b) Whether an interim tariff granted by the Copyright Board of Canada under
its interim decision making power is an approved tariff, and mandatory and
enforceable on an institution that does not consent to be bound by its terms.

II. Fair Dealing

2. The Trial Judge erred in concluding that reproductions falling within


York's Fair Dealing Guidelines do not constitute fair dealing pursuant to sections
29, 29.1 and/or 29.2 of the Copyright Act. Specifically, he misconstrued the
second part of the test for fair dealing (i.e., whether the dealing was fair) and/or
altered that legal test in the course of its application. These errors included the
following:

(a) failing to recognize that fair dealing is a user's right of students enrolled at
York; and

(b) conflating the fairness factors enumerated by the Supreme Court of


Canada and relying on the same considerations to support conclusions under
multiple factors.

III. Interim Tariff

3. The trial judge erred in holding that:

(a) the Interim Tariff is mandatory and enforceable against York;

(b) an approved tariff is mandatory and binding on any person to whom it


pertains; and

(c) the defence that the Interim Tariff is not mandatory and enforceable was a
collateral attack on the Copyright Board's Interim Tariff decision.
Page: 6

[7] In Canadian Doctors for Refugee Care v. Canada (Attorney General), 2015 FCA 34,

Justice Stratas noted that:

19 Notices of application and notices of appeal serve to define the issues in a


proceeding. Existing parties build their evidence and submissions around those
carefully defined issues. An outsider seeking admission to the proceedings as an
intervener has to take those issues as it finds them, not transform them or add to
them. Thus, under Rule 109(2)(b) a proposed intervener must show its potential
contribution to the advancement of the issues on the table, not how it will change
the issues on the table.

[8] Universities Canada has, in my view, satisfied the requirement to show that its position in

relation to the issues of fair dealing and the Interim Tariff that are raised in the notice of appeal

would not be adequately defended by York and that it is in the interests of justice that

Universities Canada be added as an intervener. However, in relation to the Interim Tariff,

Universities Canada has also indicated that it would be addressing issues that do not appear to

have been raised in the notice of appeal. In its reply submissions Universities Canada has

indicated that:

[its] arguments on the Interim Tariff will go beyond those made by York,
including to:

■ the importance of the Board completing its work in the ongoing proceeding
and issuing a final tariff;

• the availability of judicial review of the final tariff once the boards
proceeding concludes, which is important because no judicial review of the
Interim Tariff was ever possible. This is shown by this Court dismissing as
premature Universities Canada's attempt to judicially review the Interim
Tariff, because 'This is manifestly a case with the Copyright Board should be
permitted to complete its work before the Court is called upon to consider
administrative law remedies'; and

• the range of options available to the rights holders represented by Access


Copyright to enforce their rights without the need to rely on the Interim
Tariff.
Page: 7

[9] As noted above an intervener is restricted to the issues as raised in the notice of appeal. It

is difficult to link the arguments that relate to the final tariff (which is not before this Court) or

alternative remedies available to non-parties, to the issues as raised by York in its notice of

appeal.

[10] I am also satisfied that CAUT and CFS have jointly satisfied the requirements that their

position will not be adequately defended by York and that it is in the interest of justice that they

be permitted to intervene in these proceedings.

[11] With respect to the submissions of CARL, I am not satisfied that the issues that it raises

are issues that are within the scope of issues as raised in the notice of appeal. In its written

submissions CARL submits that:

32. Consistent with recent case law from this Court, the affidavit of Ms. Owen
demonstrates in great detail that:

b. It is compliant with the object as set out in Rule 3 regarding "the just, most
expeditious and least expensive determination of every proceeding on its merits",
and the mandatory requirements in Rule 109, including an explanation of how the
intervener will assist the Court in the issue before it.

(Emphasis in original)

[12] In Ms. Owen's affidavit she states that:

58. Moreover, York's Notice of Appeal and its Statement of Issues in its
Memorandum both focus explicitly on whether the interim tariff is mandatory and
not whether approved tariffs are mandatory. Even if York has succeeded on its
narrow argument about the interim tariff or should do so in this Court on such a
narrow basis, it would ring hollow for the university community because the final
approved tariff from the Copyright Board, would still be mandatory....
Page: 8

59. Thus, it is still not clear that York will fully, forcefully and adequately
address the overall threshold issue of whether tariffs approved by the Copyright
Board are mandatory or merely whether the interim tariff is not mandatory.
Moreover, York's submissions on the mandatory tariff issue comprise only about
five of the 30 pages in the York Memorandum.

[13] By acknowledging that York only addresses the interim tariff issue in its notice of appeal,

CARL is acknowledging that this is the only issue that will be before this Court. Any arguments

that CARL would wish to make in relation to any final approved tariff are outside the issues that

are before this Court and do not justify granting CARL leave to intervene.

[14] In its written submissions CARL also submitted that it is proposing to make arguments

that Access Copyright "cannot ask the court to make findings on any alleged infringement by

institutions such as York". However this issue has not been raised in the notice of appeal and

therefore cannot justify granting CARL leave to intervene in this proceeding.

[15] CARL also indicated that, in the alternative, it would be proposing to make submissions

on aggregate copying and monitoring and supervision. However, the only submission on this

issue is in one paragraph (paragraph 25) of the 160 paragraphs that CARL submitted in its

written submissions in support of its motion (including 72 paragraphs in its reply submissions).

The only statement in paragraph 25 is that the trial decision was "incorrect with respect to its

conclusions on 'aggregate' copying; and ... incorrect with respect to its conclusions on

monitoring and supervision". There is no indication of how its arguments on these issues would

be any different from those of York. This brief allegation that the trial decision was incorrect

does not warrant granting CARL leave to intervene.


Page: 9

[16] As a result the motion by Universities Canada and the motion by CAUT and CFS to

intervene in this proceeding are each allowed and the motion by CARL is dismissed.

[17] Universities Canada shall have the right to serve and file, on or before May 22, 2018, a

memorandum of fact and law that:

(a) does not exceed 15 pages in length

(b) does not repeat any of the submissions made by York;

(c) only relies on evidence that is part of the record in this proceeding;

(d) only addresses issues raised by the notice of appeal; and

(e) complies with Rule 65.

[18] Access Copyright shall have the right to serve and file, on or before June 21, 2018, a

reply to the memorandum of Universities Canada that:

(a) does not exceed 15 pages in length

(b) only addresses issues raised by Universities Canada in its memorandum; and

(c) complies with Rule 65.


Page: 10

[19] CAUT and CFS shall jointly have the right to serve and file, on or before May 22, 2018,

a memorandum of fact and law that:

(a) does not exceed 15 pages in length

(b) does not repeat any of the submissions made by York;

(c) only relies on evidence that is part of the record in this proceeding;

(d) only addresses issues raised by the notice of appeal; and

(e) complies with Rule 65.

[20] Access Copyright shall have the right to serve and file, on or before June 21, 2018, a

reply to the memorandum of CAUT and CFS that:

(a) does not exceed 15 pages in length

(b) only addresses issues raised by CAUT and CFS in their memorandum; and

(c) complies with Rule 65.

[21] The right of the interveners to make oral submissions at the hearing will be determined

by the panel hearing the appeal. The style of cause shall be amended to reflect Universities

Canada, CAUT, and CFS as interveners.


Page: 11

[22] No costs shall be awarded to or against any of the interveners.

"Wyman W. Webb"
J.A.
FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-259-17

STYLE OF CAUSE: YORK UNIVERSITY v. THE


CANADIAN COPYRIGHT
LICENSING AGENCY ("ACCESS
COPYRIGHT" AND
UNIVERSITIES CANADA et al.

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY: WEBB J.A.

DATED: APRIL 20, 2018

WRITTEN REPRESENTATIONS BY:

John C. Cotter FOR THE APPELLANT


Barry Fong YORK UNIVERSITY

Arthur B. Renaud FOR THE RESPONDENT


THE CANADIAN COPYRIGHT
LICENSING AGENCY ("ACCESS
COPYRIGHT"

David Kent FOR THE INTERVENER


Jonathan O'Hara UNIVERSITIES CANADA

Andrew E. Bernstein FOR THE INTERVENERS


Sarah Whitmore CANADIAN ASSOCIATION OF
UNIVERSITY TEACHERS AND
CANADIAN FEDERATION OF
STUDENTS

Howard P. Knopf FOR THE PROPOSED


INTERVENER
THE CANADIAN ASSOCIATION
OF RESEARCH LIBRARIES
Page: 2

SOLICITORS OF RECORD:

Osier, Hoskin & Harcourt LLP FOR THE APPELLANT


Toronto, Ontario YORK UNIVERSITY

Arthur B. Renaud FOR THE RESPONDENT


Barrister and Solicitor THE CANADIAN COPYRIGHT
Toronto, Ontario LICENSING AGENCY
("ACCESS COPYRIGHT"

McMillan LLP FOR THE INTERVENER


Toronto, Ontario UNIVERSITIES CANADA
Ottawa, Ontario

Torys LLP FOR THE INTERVENERS


Toronto, Ontario CANADIAN ASSOCIATION OF
UNIVERSITY TEACHERS AND
CANADIAN FEDERATION OF
STUDENTS

Macera & Jarzyna LLP FOR THE PROPOSED


Ottawa, Ontario INTERVENER
THE CANADIAN
ASSOCIATION OF RESEARCH
LIBRARIES
TAB B
Samarraie v. Canada (Minister of Citizenship & Immigration), 2003 FCT 755, 2003...
2003 FCT 755, 2003 CFPI 755, 2003 CarswellNat 1947, 2003 CarswellNat 6899...

2003 FCT 755, 2003 CFPI 755


Federal Court of Canada, Trial Division

Samarraie v. Canada (Minister of Citizenship & Immigration)

2003 CarswellNat 1947, 2003 CarswellNat 6899, 2003 FCT 755, 2003 CFPI 755, [2003] F.C.J. No. 979, 123
A.C.W.S. (3d) 11o8

Omar. M. Jasim. Al. Samarraie, Applicant and The Minister of Citizenship and
Immigration, Respondent
Blanchard J.

Judgment: June 18, 2003


Docket: IMM-3002-01

Proceedings: refusing reconsideration (2003), 2003 CarswellNat 810, 2003 CarswellNat 1739, 2003 FCT 377, 2003 CFPI
377 (Fed. T.D.)

Counsel: Dr. Sabah Alazzawi, for Applicant


Miss Brenda Carbonell, for Respondent

Subject: Immigration

Related Abridgment Classifications

Administrative law
VIII Error of law on face of record
VIII.6 Miscellaneous

Immigration and citizenship


II Admission
11.3 Immigrants
11.3.d Skilled workers
II.3.d.iii Categories (point system)
II.3.d.iii.F Experience

Immigration and citizenship


II Admission
11.4 Application for temporary resident or immigrant visa
II.4.c Documentation and corroborative evidence
II.4.c.i Consideration of evidence

Immigration and citizenship


II Admission
11.5 Appeals and judicial review
II.5.b Judicial review
II.5.b.vii Procedure
II.5.b.vii.F Miscellaneous

Headnote
WestlavvNext CANADA Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved
Samarraie v. Canada (Minister of Citizenship & Immigration), 2003 FCT 755, 2003...
2003 FCT 755, 2003 CFPI 755, 2003 CarswellNat 1947, 2003 CarswellNat 6899...

Aliens, immigration and citizenship --- Admission — Appeals and judicial review — Judicial review — Powers and duties of
court
Alien brought application for permanent residence in Canada in independent category — Application was dismissed and
alien brought application for judicial review — Application was dismissed — Reasons for judgment included two factual
errors, being statement that alien's application was brought in assisted relative category as well as independent category and
statement that alien was interviewed in support of application on wrong date — Alien brought application for reconsideration
— Application dismissed — Reconsideration may be granted pursuant to Federal Court Rules, 1998 R. 397 where "there was
some matter the Court overlooked in reaching its decision and if so determine if the overlooked matter changes its decision"
— In present case, factual errors in reasons for judgment did not effect conclusion and did not result in confusion between
reasons and order — Errors did not constitute "matter the Court overlooked in reaching its decision" and reconsideration was
accordingly not available in present case.

Table of Authorities

Cases considered by Blanchard J.:

Cedeno v. Canada (Minister of Citizenship & Immigration) (2000), 2000 CarswellNat 3072 (Fed. T.D.) considered

Statutes considered:

Immigration and Refugee Protection Act, S.C. 2001, c. 27


s. 74(d) — referred to

Rules considered:

Federal Court Rules, 1998, SOR/98-106


R. 397 — considered

R. 397(1)(a) — considered

R. 397(2) — referred to

APPLICATION by alien from reconsideration of judgment reported at 2003 CarswellNat 810, 2003 CarswellNat 1739, 2003
FCT 377, 2003 CFPI 377 (Fed. T.D.), dismissing alien's application for judicial review of decision dismissing alien's
application for permanent residence in Canada.

Blanchard J.:

1 The applicant, Mr. Al Samarraie, seeks reconsideration of the Federal Court orders dated March 31, 2003 and May 13,
2003. The reconsideration is requested pursuant to Rule 397(1)(a) of the Federal Court Rules, 1998, SOR/98-106 (the
"Rules").

2 Mr. Al Samarraie applied for permanent residence in the independent category on February 29, 2000. His application
was rejected on November 17, 2000. He applied for judicial review of that decision, and the matter was heard by the Federal
Court on February 5, 2003, in Vancouver. The applicant subsequently proposed a question of general importance for
certification, pursuant to subsection 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The question
proposed was considered and by order dated May 13, 2003, no question was certified..

3 The applicant now brings a motion for reconsideration of the March 31, 2003, order on the basis, noted in Rule
397(1)(a), that some of the facts in that order are not correct and consequently do not accord with the reasons given.

4 Rule 397 provides:


(1) Within 10 days after the making of an order, or (1) Dans les 10 jours apres qu'une ordonnance a ete
WestlawNext CANADA Copyright© Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 2
Samarraie v. Canada (Minister of Citizenship & Immigration), 2003 FCT 755, 2003...
2003 FCT 755, 2003 CFPI 755, 2003 CarswellNat 1947, 2003 CarswellNat 6899...

within such other time as the Court may allow, a party rendue ou dans tout autre delai accorde par la Cour,
may serve and file a notice of motion to request that une partie pent signifier et deposer un avis de requete
the Court, as constituted at the time the order was demandant a la Cour qui a rendu l'ordonnance, telle
made, reconsider its terms on the ground that qu'elle etait constitude a ce moment, d'en examiner de
nouveau les termes, mais seulement pour l'une ou
l'autre des raisons suivantes :
(a) the order does not accord with any reasons given a) l'ordonnance ne concorde pas avec les motifs qui, le
for it; or cas echeant, ont ete donnes pour la justifier;
(b) a matter that should have been dealt with has been b) une question qui aurait do etre trait& a ete oubliee
overlooked or accidentally omitted. ou omise involontairement.
(2) Clerical mistakes, errors or omissions in an order (2) Les fautes de transcription, les erreurs et les
may at any time be corrected by the Court. omissions contenues dans les ordonnances peuvent
etre corrigees a tout moment par la Cour.

5 The applicant's motion record was filed on May 14, 2003, more than 10 days after the Order. An extension of time was
not requested by the applicant nor was the issue raised by the respondent. I will nevertheless allow an extension of time so
that the motion may be dealt with on the merits.

6 The jurisprudence clearly establishes that Rule 397 is not intended to be used as a method of appeal. Rather, the issue is
"whether there was some matter the Court overlooked in reaching its decision and if so determine if the overlooked matter
changes its decision": Cedeno v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 2117 (Fed. T.D.)at para.
9.

7 In the present case, the applicant submits that the March 31, 2003, order contains two errors of fact. At paragraph 2, the
order states that the applicant applied under the "independent" and "assisted relative" categories, whereas the applicant states
that he applied only as an independent category candidate. Secondly, the applicant notes that paragraph 3 states that the
applicant was interviewed on August 10, 2000, when in fact he was interviewed on November 16, 2000. The applicant's
motion record also sets out a number of arguments aimed at disputing the merits of the visa officer's decision.

8 I am of the view that the two errors of fact do not result in the order not being in accord with the reasons given or that a
matter that should have been dealt with has been overlooked or accidentally omitted. There is nothing inconsistent between
the reasons and the order. The analysis examines the visa officer's decision in relation to the applicant's work experience as a
biologist and his relationship to his aunt and as such clearly address the applicant's submissions concerning his application as
an "independent" category immigrant. I also find that the error concerning the interview date is of no import whatsoever.

9 The applicant also purports to re-open the judicial review by submitting additional arguments concerning the visa
officer's decision. This constitutes an attempt to have the decision reconsidered on its merits. As noted earlier, this is not
permitted under Rule 397.

10 The applicant also seeks reconsideration of the May 13, 2003, order, in which I rejected the proposed certified
question. In that order, I held that the proposed question did not arise from the issues considered by the Court on judicial
review and would therefore not be determinative of the appeal. I fail to see that the reasons given do not accord with the
order.

11 In the result, the motion for reconsideration is dismissed. The two errors of fact in the Reasons for Order and Order
will be ordered corrected pursuant to Rule 397(2).

Order

IT IS HEREBY ORDERED that:

1. The motion for reconsideration is dismissed.

WestlawNext CANADA Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents) All rights reserved 3
Samarraie v. Canada (Minister of Citizenship & Immigration), 2003 FCT 755, 2003...
2003 FCT 755, 2003 CFPI 755, 2003 CarswellNat 1947, 2003 CarswellNat 6899...

2. My Reasons for Order dated March 31, 2003, be amended and corrected as follows:

(i) the words "and 'assisted relative' categories" in paragraph 2 be deleted and replaced with "category";

(ii) the words "August 10, 2000," in paragraph 3 be deleted and replaced with "November 16, 2000,".

Application dismissed

End of Document Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.

WestlawNext CANADA Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved
TAB C
ciffrberal Olourf of,Appeat Cnir ?'apprl ft''berale
Date: 20180328

Docket: A-394-15

2018FCA 65 (CanLII)
Citation: 2018 FCA 65

Present: WEBB J.A.

BETWEEN:

ALEXANDER VAVILOV

Appellant

and

THE MINISTER OF CITIZENSHIP AND


IMMIGRATION

Respondent

Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on March 28, 2018.

REASONS FOR ORDER BY: WEBB J.A.


afrberal Court' of (Appeal (roar b'appri fiberafe
Date: 20180328

Docket: A-394-15

2018FCA65 (CanLII)
Citation: 2018 FCA 65

Present: WEBB J.A.

BETWEEN:

ALEXANDER VAVILOV

Appellant

and

THE MINISTER OF CITIZENSHIP AND


IMMIGRATION

Respondent

REASONS FOR ORDER

WEBB J.A.

[1] By the Order (the FCA Order) dated January 19, 2018 (2018 FCA 19), the motion that

had been brought by the Minister of Citizenship and Immigration (Minister) for an order staying

the Judgment of this Court dated June 21, 2017 (2017 FCA 132) pending the disposition of the

Minister's application for leave to appeal to the Supreme Court of Canada and, if leave is

granted, the determination of the appeal, was dismissed. The Minister has now filed a motion
Page: 2

requesting that I reconsider the FCA Order under Rule 397(1)(b) of the Federal Courts Rules,

SOR/98-106 or that I set it aside under Rule 399(2)(a).

[2] For both Rules the matter that I allegedly "overlooked or accidentally omitted" or that

2018 FCA 65 (CanLII)


subsequently arose was the decision of the Federal Court on January 19, 2018 (the same date that

the FCA Order and the related Reasons were signed) that dismissed the Minister's motion for an

adjournment of the hearing of the judicial review application of Timothy Vavilov, Alexander

Vavilov's brother.

I. Rule 397

[3] Rule 397 provides a limited basis for reconsidering an order that has been granted:

397(1) Within 10 days after the 397(1) Dans les 10 fours apres qu'une
making of an order, or within such ordonnance a ete rendue ou dans tout
other time as the Court may allow, a autre delai accorde par la Cour, une
party may serve and file a notice of partie peut signifier et deposer un avis
motion to request that the Court, as de requete demandant a la Cour qui a
constituted at the time the order was rendu l'ordonnance, telle qu'elle etait
made, reconsider its terms on the constitude a ce moment, d'en
ground that examiner de nouveau les termes, mais
seulement pour l'une ou l'autre des
raisons suivantes :

(a) the order does not accord a) l'ordonnance ne concorde pas


with any reasons given for it; or avec les- motifs qui, le cas
echeant, ont ete donnes pour la
justifier;

(b) a matter that should have b) une question qui aurait du


been dealt with has been etre trait& a ete oublide ou
overlooked or accidentally omise involontairement.
omitted.
Page: 3

[4] In order for paragraph (b) to be applicable, there must have been some matter that was

overlooked or accidentally omitted. To be overlooked or accidentally omitted, it must have been

a matter of which the Court was aware or ought to have been aware. However, in this case, the

matter to which the Minister referred was an order of a different court — the Federal Court. That

',an L1 1)
Order of the Federal Court was issued on the same day that the FCA Order and Reasons were

20 18FCA 65 ( :
signed. The Federal Court and this Court are two separate courts. There is no process by which a

judge of this Court is immediately apprised, as soon as a judge of the Federal Court signs an

order, that such order has been signed. In any event, it appears, from the copy of the Federal

Court Order that was submitted by the Minister in relation to this motion, that the Order of the

Federal Court was sent by fax at 4:17 pm on January 19, 2018 to counsel for Minister. The FCA

Order and Reasons were signed before that time.

[5] The motion for reconsideration under Rule 397 is without any merit.

II. Rule 399(2)

[6] Rule 399(2) provides that an order can be set aside based on a subsequent event:

(2) On motion, the Court may set (2) La Cour peut, sur requete, annuler
aside or vary an order ou modifier une ordonnance dans l'un
ou l'autre des cas suivants :

(a) by reason of a matter that a) des faits nouveaux sont


arose or was discovered survenus ou ont ete decouverts
subsequent to the making of the apres que l'ordonnance a ete
order; or rendue;

(b) where the order was b) l'ordonnance a ete obtenue


obtained by fraud. par fraude.
Page: 4

[7] In arguing that the dismissal of the Minister's motion for an adjournment in Timothy

Vavilov's application for judicial review should result in the FCA Order being set aside, the

Minister submits in paragraph 2 of his memorandum that because Timothy Vavilov's case will

be proceeding:

2018 FCA 65 (CanLII)


• [it] will lead to procedural complexities (notably whether to consider Timothy Vavilov's

Charter argument)

• the waste of resources in potentially unnecessary proceedings (if the Supreme Court

ultimately dismisses the Minister's case)

• the uncertain preservation of appeal rights (it being no foregone conclusion the Federal

Court will certify a question this Court has already answered) and

• the risk of inconsistent outcomes (should Timothy Vavilov's judicial review be granted

and no question be certified, but the Minister eventually be successful in the present

matter before the Supreme Court).

[8] All of these arguments are submissions that would be more appropriate in relation to the

adjournment motion for Timothy Vavilov's application than in this motion to reconsider the

FCA Order. It would appear that these submissions were made by the Minister before the Federal

Court in relation to that adjournment motion. These arguments were not sufficient to obtain an

adjournment of Timothy Vavilov's judicial review application and are less relevant in this

motion to set aside the FCA Order.


Page: 5

[9] The issue related to Timothy Vavilov's application for judicial review was addressed in

paragraphs 12 and 13 of the Reasons dated January 19, 2018. This was part of the analysis of

whether there would be any irreparable harm to the Minister if the stay was not granted. Since

the conclusion in paragraph 11 of these Reasons was that "there may be some harm to the

2018 FCA65 (CanLII)


Minister in having to revoke a certificate of citizenship and a passport if the Minister is

successful in having the decision of this Court overturned", the analysis proceeded to the balance

of convenience, even though the arguments related to Timothy Vavilov's application were

speculative at that time.

[10] In order to succeed in this motion, the Minister will need to establish that the denial of the

adjournment request in Timothy Vavilov's case would result in the balance of inconvenience

analysis, as set out by the Supreme Court of Canada in RJR-MacDonald v. Canada, [1994]

1 S.C.R. 311, would now result in greater harm to the Minister than to Alexander Vavilov.

[11] The harm to Alexander Vavilov discussed in the balance of inconvenience analysis in the

Reasons dated January 19, 2018 is not affected by the denial of the adjournment in Timothy

Vavilov's application.

[12] The additional harm identified by the Minister, as set out in paragraph 7 above, relate to

the additional litigation related to Timothy Vavilov. This is simply a consequence of having the

two matters proceed separately. The floodgates of individuals who have been or may be granted

citizenship that should not be granted, if the Minister is successful in being granted leave to
Page: 6

appeal and also ultimately in the appeal to the Supreme Court, are not open. The number of

individuals who may be in the same situation as Alexander Vavilov simply increases from 1 to 2.

[13] In my view, the denial of the adjournment request in Timothy Vavilov's application does

2018 FCA 65 ( CanLII)


not warrant a reconsideration of the FCA Order denying the Minister's motion for a stay in

Alexander Vavilov's case.

[14] As a result, the motion of the Minister is dismissed, with costs.

"Wyman W. Webb"
J.A.
FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-394-15

2018FCA65 (CanLII)
STYLE OF CAUSE: ALEXANDER VAVILOV v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY: WEBB J.A.

DATED: MARCH 28, 2018

WRITTEN REPRESENTATIONS BY:

Hadayt Nazami FOR THE APPELLANT


ALEXANDER VAVILOV
John Provart FOR THE RESPONDENT
Tessa Cheer THE MINISTER OF
Kevin Doyle CITIZENSHIP AND
IMMIGRATION

SOLICITORS OF RECORD:

Jackman Nazami & Associates FOR THE APPELLANT


Toronto, Ontario ALEXANDER VAVILOV

Nathalie G. Drouin FOR THE RESPONDENT


Deputy Attorney General of Canada THE MINISTER OF
CITIZENSHIP AND
IMMIGRATION
TAB D
CANADA

CONSOLIDATION CODIFICATION

Copyright Act Loi sur le droit d'auteur

R.S.C., 1985, c. C-42 L.R.C. (1985), ch. C-42

Current to April 10, 2018 A jour au 10 avril 2018


Last amended on June 19, 2017 Derniere modification le 19 juin 2017

Published by the Minister of Justice at the following address: Publie par le ministre de la Justice a l'adresse suivante :
http://laws-Iois.justice.gc.ca http://lois-laws.justice.gc.ca
Copyright Droit d'auteur
PART VII Copyright Board and Collective Administration of Copyright PARTIE VII Commission du droit d'auteur et gestion collective
Collective Administration of Performing Rights and of Communication Rights Gestion collective du droit d'execution et de communication
Sections 68.1-68.2 Articles 68.1-68.2

(C) for the third year following the coming into c) dans le cas des systemes de transmission publics,
force of this section, one hundred per cent of the ne payent, la premiere annee suivant l'entree en vi-
royalties set out in the approved tariff for that gueur du present article, que trente-trois et un tiers
year; pour cent du tarif homologue, la deuxieme armee,
soixante-six et deux tiers pour cent et payent cent
(b) community systems shall pay royalties of $100 in pour cent la troisieme annee, ces pourcentages etant
respect of each year; and calcules selon le tarif homologue de Vann& en cause.
(c) public transmission systems shall pay royalties, in
respect of each of the first three years following the
coming into force of this section, as follows:

(i) for the first year following the coming into force
of this section, thirty-three and one third per cent
of the royalties set out in the approved tariff for
that year,

(ii) for the second year following the coming into


force of this section, sixty-six and two thirds per
cent of the royalties set out in the approved tariff
for that year, and

(iii) for the third year following the coming into


force of this section, one hundred per cent of the
royalties set out in the approved tariff for that year.

Effect of paying royalties Effet du paiement des redevances


(2) The payment of the royalties set out in subsection (1) (2) Le paiement des redevances visees au paragraphe (1)
fully discharges all liabilities of the system in question in libere ces systemes de toute responsabilite relative aux
respect of the approved tariffs. tarifs homologues.

Definition of advertising revenues Definition de recettes publicitaires


(3) The Board may, by regulation, define advertising (3) Pour l'application du paragraphe (1), la Commission
revenues for the purposes of subsection (1). peut, par reglement, definir recettes publicitaires.

Preferential royalty rates Tarifs preferentiels


(4) The Board shall, in certifying a tariff as approved un- (4) Lorsqu'elle procede a l'homologation prevue au para-
der subsection 68(3), ensure that there is a preferential graphe 68(3), la Commission fixe un tarif preferentiel
royalty rate for small cable transmission systems. pour les petits systemes de transmission par fil.

Regulations Reglements
(5) The Governor in Council may make regulations (5) Le gouverneur en conseil peut, pour l'application du
defining "small cable transmission system", "community present article, definir par reglement « petit systeme de
system", "public transmission system" and "wireless transmission par fil », « systeme communautaire »,
transmission system" for the purposes of this section. « systeme de transmission par ondes radioelectriques »
1997, c. 24, s 45. et « systeme de transmission public >>,
1997, ch. 24, art 45.

Effect of fixing royalties Portee de l'homologation


68.2 (1) Without prejudice to any other remedies avail- 68.2 (1) La societe de gestion peut, pour la periode
able to it, a collective society may, for the period specified mentionnee au tarif homologue, percevoir les redevances
in its approved tariff, collect the royalties specified in the qui y figurent et, independamment de tout autre recours,
tariff and, in default of their payment, recover them in a le cas echeant, en poursuivre le recouvrement en justice.
court of competent jurisdiction.

Current to April 10, 2018 142 A jour au 10 avril 2018


Last amended on June 19, 2017 Derniere modification le 19 juin 2017
Copyright Droit d'auteur
PART VII Copyright Board and Collective Administration of Copyright PARTIE VII Commission du droit d'auteur et gestion collective
Collective Administration of Performing Rights and of Communication Rights Gestion collective du droit d'execution et de communication
Sections 68.2-69 Articles 68.2-69

Proceedings barred if royalties tendered or paid Interdiction des recours


(2) No proceedings may be brought against a person who (2) Il ne peut etre intente aucun recours pour violation
has paid or offered to pay the royalties specified in an ap- des droits d'execution en public ou de communication au
proved tariff for public par telecommunication vises a Particle 3 ou des
droits vises aux alineas 15(1.1)d) ou 18(1.1)a), ou pour re-
(a) the infringement of the right to perform in public couvrement des redevances visees a Particle 19, contre
or the right to communicate to the public by telecom- quiconque a paye ou offert de payer les redevances figu-
munication, referred to in section 3; rant au tarif homologue.
(b) the infringement of the rights referred to in para-
graph 15(1.1)(d) or 18(1.1)(a); or

(c) the recovery of royalties referred to in section 19.

Continuation of rights Maintien des droits


(3) Where a collective society files a proposed tariff in (3) Toute personne visee par un tarif concernant les
accordance with subsection 67.1(1), ceuvres, les prestations ou les enregistrements sonores
vises a Particle 67 peut, malgre la cessation d'effet du ta-
(a) any person entitled to perform in public or com- rif, les executer en public ou les communiquer au public
municate to the public by telecommunication those par telecommunication des lors qu'un projet de tarif a ete
works, performer's performances or sound recordings depose conformement au paragraphe 67.1(1), et ce jus-
pursuant to the previous tariff may do so, even though qu'a l'homologation d'un nouveau tarif. Par ailleurs, la
the royalties set out therein have ceased to be in effect, societe de gestion interessee peut percevoir les rede-
and vances prevues par le tarif anterieur jusqu'a cette homo-
logation.
(b) the collective society may collect the royalties in 1997, ch. 24, art. 45; 2012, ch. 20, art. 54.
accordance with the previous tariff,
until the proposed tariff is approved.
1997, c. 24, s. 45, 2012, c. 20, s. 54.

Public Performances in Places Other Executions en public ailleurs qu'au


Than Theatres theatre
69 (1) [Repealed, R.S., 1985, c. 10 (4th Supp.), s. 14] 69 (1) [Abroge, L.R. (1985), ch. 10 (4e suppl.), art. 14]

Radio performances in places other than theatres Executions par radio dans des endroits autres que des
theatres
(2) In respect of public performances by means of any (2) En ce qui concerne les executions publiques au
radio receiving set in any place other than a theatre that moyen d'un appareil radiophonique recepteur, en tout
is ordinarily and regularly used for entertainments to endroit autre qu'un theatre servant ordinairement et re-
which an admission charge is made, no royalties shall be gulierement de lieu d'amusement oil est exige un prix
collectable from the owner or user of the radio receiving d'entree, aucune redevance n'est exigible du proprietaire
set, but the Board shall, in so far as possible, provide for ou usager de l'appareil radiophonique recepteur; mais la
the collection in advance from radio broadcasting sta- Commission doit, autant que possible, pourvoir a la per-
tions of royalties appropriate to the conditions produced ception anticipee, des radio-postes emetteurs des droits
by the provisions of this subsection and shall fix the appropries aux conditions nees des dispositions du pre-
amount of the same. sent paragraphe, et elle doit en determiner le montant.

Expenses to be taken into account Calcul du montant


(3) In fixing royalties pursuant to subsection (2), the (3) En ce faisant, la Commission tient compte de tous
Board shall take into account all expenses of collection frais de recouvrement et autres &bourses epargnes ou
and other outlays, if any, saved or savable by, for or on pouvant etre epargnes par le detenteur concerne du droit
behalf of the owner of the copyright or performing right d'auteur ou du droit d'execution, ou par ses mandataires,

Current to April 10, 2018 143 A jour au 10 avril 2018


Last amended on June 19, 2017 Derniere modification le 19 juin 2017