COMPETITION TRIBUNAL
IN THE MATTER OF THE Competition Act, R.S.C. 1985, c. C-34 (the “Act”) AND IN THE MATTER OF an application by Stargrove Entertainment Inc. for an order pursuant to section 76 of the Act
BETWEEN STARGROVE ENTERTAINMENT INC. Applicant - and –
SONY/ATV MUSIC PUBLISHING CANADA CO., SONY MUSIC ENTERTAINMENT CANADA INC., ABKCO MUSIC & RECORDS, INC., CASABLANCA MEDIA PUBLISHING, and CANADIAN MUSICAL REPRODUCTION RIGHTS AGENCY LTD.
Respondents
REPLY OF THE PROPOSED INTERVENER, THE SAMUELSON GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC
Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC) University of Ottawa, Faculty of Law Common Law Section 57 Louis Pasteur St. Ottawa, Ontario, K1N 6N5
David Fewer Tel.: 613-562-5800 ext. 2558 Fax: 613-562-5417
Counsel for the Moving Party Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC)
CT-2015-014
TO: WEIRFOULDS LLP Barristers & Solicitors 4100 - 66 Wellington Street West P.O. Box 35, Toronto-Dominion Centre Toronto, ON M5K 1B7
Nikiforos Iatrou niatrou@weirfoulds.com Tel: 416-947-5072, Fax: 416-365-1876
Scott McGrath Tel: 416-947-5038, Fax: 416-365-1876 smcgrath@weirfoulds.com
Bronwyn Roe broe@weirfoulds.com Tel: 416-947-5051, Fax: 416-365-1876
Counsel for the Applicant AND TO: DIMOCK STRATTON LLP 20 Queen Street West, 32nd Floor Toronto, ON M5H 3R3
Sangeetha Punniyamoorthy spunniyamoorthy@dimock.com Tel: 647-288-9536, Fax: 416-971-6638
Thomas Kurys tkurys@dimock.com Tel: 647-288-9551, Fax: 416-971-6638
Counsel for the Applicant AND TO: OSLER, HOSKIN & HARCOURT LLP 100 King Street West 1 First Canadian Place Suite 6200, P.O. Box 50 Toronto, ON M5X 1B8
Mahmud Jamal Tel: 416-862-6764; Fax: 416-862-6666 mjamal@osler.com
Peter Franklyn Tel: 416-862-6494; Fax: 416-862-6666 pfranklyn@osler.com Counsel for the Respondents Sony/ATV Music Publishing Canada Co. and Sony Music Entertainment Canada Inc.
AND TO: AFFLECK GREENE MCMURTRY LLP 365 Bay Street, Suite 200 Toronto, ON M5H 2V1
W. Michael G. Osborne Tel: 416-360-5919; Fax: 416-360-5960 mosborne@agmlawyers.com
Wendy Sun Tel: 416-360-1485; Fax: 416-360-5960 wsun@agmlawyers.com Counsel for the Respondents ABKCO Music & Records, Inc. and Casablanca Media Publishing
AND TO: CASSELS BROCK & BLACKWELL LLP Suite 2100, Scotia Plaza 40 King Street West Toronto, ON M5H 3C2
Chris Hersh Tel: 416-869-5387; Fax: 416-640-3017 chersh@casselsbrock.com
Casey Chisick Tel: 416-869-5403; Fax: 416-644-9326 cchisick@casselsbrock.com Counsel for the Respondent Canadian Musical Reproduction Rights Agency Ltd.
I. CIPPIC should be allowed to intervene in the public interest. 1. In the interest of fairness, CIPPIC should be allowed to intervene in this application in the public interest. The Competition Tribunal Rules, on the respondent’s reading, impose a substantially higher threshold for proposed interveners to overcome than other Canadian Courts. However, Canadian jurisprudence requires the Competition Tribunal to apply a “genuine interest” test in place of the “directly affected” test in deciding whether to allow a public interest intervention. CIPPIC meets the genuine interest test and should be allowed to intervene. II. The Respondents’ reading of the Competition Tribunal Rules imposes a substantially higher threshold for proposed interveners to overcome than other Canadian Courts. 2. In comparison to the rules for intervention in Ontario courts, the Federal Courts or the Supreme Court of Canada, the respondents’ reading of the Competition Tribunal Rules imposes a much higher threshold for allowing intervenors. The respondents would require interveners to solely provide “a concise statement of the matters in issue that affect that person”. 1 This threshold would preclude a public interest intervention from ever being heard by the Competition Tribunal. 3. The Ontario Rules of Civil Procedure allow a person to move for leave to intervene if the person claims either an interest in the subject matter of the proceeding; that the person may be adversely affected by a judgment in the proceeding; or that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding. 2 4. The Federal Court Rules do not impose a “directly affected” requirement; instead, the statute requires proposed interveners to describe how they wish “to participate in the proceeding and how that participation will assist the determination of a factual or legal issue related to the proceeding.” 3 1 Competition Tribunal Rules, SOR/2008-141, at s 43(2)(c). 2 Ontario, Rules of Civil Procedure, at r 13.01(1). 3 Federal Courts Rules at r 109(2)(b).
5. The Rules of the Supreme Court of Canada require the proposed intervener to identify their “interest in the proceeding” 4 , any prejudice that person “would suffer if the intervention were denied” 5 and set out the submissions to be advanced by the person interested in the proceeding with respect to the questions on which they propose to intervene, their relevance to the proceeding and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties. 6 6. None of these disparate rules provide for an explicit public interest intervener test. Instead, each implies a private interest justification for the proposed intervention. Yet, courts have interpreted the rules in all three cases to permit public interest interventions. The Tribunal’s Rules are similarly flexible, and do not explicitly deprive the Tribunal of the benefit of public interest interventions.
III. Canadian jurisprudence requires the Competition Tribunal to apply a “genuine interest” test in place of the “directly affected” test when deciding an application to intervene in the public interest.
7. In R v. Finta, the Supreme Court of Canada established that although the court was “often reluctant to grant intervener status to public interest groups in criminal appeals, exceptions can be made under its broad discretion where important public law issues are considered.” 7 CIPPIC submits that the same principle should apply to the Competition Tribunal when deciding applications for public interest interventions. The Competition Tribunal should not let a reluctance to grant public interest interventions prevent CIPPIC from intervening to provide useful information that will assist the Tribunal in making a decision on the issues.
8. The Supreme Court of Canada has recognized that Canadian courts have moved away from limiting standing to
4 Rules of the Supreme Court of Canada at r 57(1). 5 Rules of the Supreme Court of Canada at r 57(1). 6 Rules of the Supreme Court of Canada at r 57(2)(b). 7 R. v. Finta, [1993] 1 SCR 1138.
persons whose private rights were at stake or who were specially affected by the issue. In public law cases, however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionary approach to public interest standing, guided by the purposes which underlie the traditional limitations. 8 CIPPIC submits that the Tribunal should apply this approach when deciding on CIPPIC’s application to intervene. “Liberal standing rules for parties and interveners, which make it possible for any group with relevant arguments to come before the court, are an effort to increase access to justice.” 9 9. In Canada (Attorney General) v. Pictou Landing Band Council, 2014 FCA 21, the Federal Court of Appeal changed the “directly affected” standard for proposed interveners to “a lower but still meaningful” standard of a “genuine interest in the precise issue(s) upon which the case is likely to turn.” 10 The Court’s concern was that the “directly affected” standard was meant for parties seeking “full party status in an application for judicial review”. 11 Applying the “directly affected” standard to proposed interveners was not appropriate because it was “much higher than the standard used in “[a]ll other jurisdictions in Canada”. 12 Instead, the considerations that a court should consider when deciding whether intervener status should be granted are:
a. Has the proposed intervener complied with the specific procedural requirements in Rule 109(2)? Is the evidence offered in support detailed and well-particularized? If the answer to either of these questions is no, the Court cannot adequately assess the remaining considerations and so it must deny intervener status. If the answer to both of these questions is yes, the Court can adequately assess the remaining considerations and assess whether, on balance, intervener status should be granted.
8 Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society at para 1. 9 Lara Friedlander, “Costs and the Public Interest Litigant” (1995) 40 McGill LJ 55 at 91. 10 Canada (Attorney General) v. Pictou Landing Band Council, 2014 FCA 21 at para 9 11 Ibid. 12 Ibid.
b. Does the proposed intervener have a genuine interest in the matter before the Court such that the Court can be assured that the proposed intervener has the necessary knowledge, skills and resources and will dedicate them to the matter before the Court? c. In participating in this appeal in the way it proposes, will the proposed intervener advance different and valuable insights and perspectives that will actually further the Court's determination of the matter? d. Is it in the interests of justice that intervention be permitted? For example, has the matter assumed such a public, important and complex dimension that the Court needs to be exposed to perspectives beyond those offered by the particular parties before the Court? Has the proposed intervener been involved in earlier proceedings in the matter? e. Is the proposed intervention inconsistent with the imperatives in Rule 3, namely securing "the just, most expeditious and least expensive determination of every proceeding on its merits"? Are there terms that should be attached to the intervention that would advance the imperatives in Rule 3? 13 10. ABKCO Music & Records Inc. and Casablanca Media Publishing (ABKCO) submit that Globalive Wireless Management Corp v Public Mobile Inc has no application to an intervention application before the Competition Tribunal. CIPPIC submits that Globalive is applicable because it reflects established Canadian jurisprudence on public interest interventions. It is neither a “violation” nor a “violence” to the Competition Tribunal Act to import a test that allows interventions in the public interest and comes from a court that hears decisions appealed from the Competition Tribunal. The “genuine interest” standard has a basis in Canadian jurisprudence and in the interest of fairness should be adopted by the Tribunal when considering CIPPIC’s application to intervene in the public interest.
13 Canada (Attorney General) v. Pictou Landing Band Council, 2014 FCA 21 at para 11.
IV. CIPPIC meets both the genuine and direct interest tests and should be allowed to intervene.
11. ABKCO submits that CIPPIC fails to meet the “genuinely interested” test because its interest is merely jurisprudential.
12. CIPPIC’s mandate is to research and advocate in the public interest on important public policy issues arising at the intersection of law and technology. CIPPIC has an interest in ensuring that the interpretation of the Competition Act is consistent with the preservation of issues within its mandate. 14 Through its mandate, CIPPIC has a direct stake in protecting Canada’s public domain under competition and copyright law.
13. CIPPIC’s concern that the Tribunal’s decision will have repercussions on copyright law and policy are in the context of protecting the public domain. “This interest is beyond a mere ‘jurisprudential interest’, such as a concern that [the Tribunal’s] decision will have repercussions for other areas of law.” 15 CIPPIC has a demonstrated commitment to protecting the public domain and the public interest in copyright law, and to the proper functioning of markets for works and sound recordings – both copyright-protected and public domain. This interest is both genuine and direct.
14. Additionally, Benoit v. Canada, 2001 FCA 71 established that if in a case where important public interest issues are raised, an intervener wishes to raise a related public interest question which naturally arises out of the existing lis between the parties, and which none of the other parties has raised, it is appropriate to permit the intervention. 16 14 Competition Act, RSC 1985 c C-34; R. v. Finta, [1993] 1 SCR 1138. 15 Globalive Wireless Management Corp. v. Public Mobile Inc. (2011), 420 N.R. 46, 2011 FCA 119; 16 Benoit v. Canada, 2001 FCA 71 at para 18.
15. CIPPIC offers a unique and distinct perspective on important public interest issues that arise in this application, but were not discussed by either the applicant or the respondents. The Tribunal’s mandate is to consider “fairness” in its decisions. 17 In the interest of fairness, CIPPIC should be allowed to intervene in this application.
All of which is respectfully submitted, this 5 th day of April, 2016, at Ottawa, Ontario. David Fewer LSUC # 45307C Tel.: 613-562-5800 ext. 2558 Fax: (613) 562-5417
17 “Organization Profile – Competition Tribunal”, 18 March 2016, online: <www.appointments-nominations.gc.ca/prflOrg.asp?OrgID=RCT⟨=eng >.