Procedural Errors before the Federal Court: Admitting Evidence under Rules 306 and 307

  • November 26, 2015

Canadian Copyright Licensing Agency (Access Copyright) v. Alberta, 2015 FCA 268 (J.A. David Stratas)

November 26, 2015

Jessaca Zagar of The Canadian Copyright Licensing Agency, for Canadian Copyright Licensing Agency (Access Copyright) (Applicant)

Wanda Noel, J. Aidan O’Neil and Ariel Thomas of Fasken Martineau DuMoulin LLP (Respondents)

Bruce M. Green of Oyen Wiggs Green & Mutala LLP for Her Majesty the Queen in Right of the Province of British Columbia (Respondent)

This decision arose out of an application for judicial review under R. 317 of the Federal Courts Rules (the “Rule”) where the Applicant sought to have a decision of the Copyright Board (the “Board”) quashed. Pursuant to the Rule, the Applicant requested that the Board supply it with material that was: 1) relevant to its application; and 2) in the Board’s, but not in the Applicant’s, possession. After being notified by the Board that no material met this qualification, the Applicant took affirmative steps to place material that was in its own possession and before the Board, into the application record. However, the Applicant failed to place this material under affidavit, as required by Rules 306 and 307.

The Respondents subsequently brought a motion seeking to remove this material and argued that they suffered “irredeemable prejudice” as result of the “egregious” error of Access Copyright. The Respondents further argued that Access Copyright should be “barred from including in its application record an affidavit appending the materials, regardless of how relevant the material might be to the Court’s determination of the judicial review.”

On review of the facts and the applicable law, the Court determined that the Applicant had erred by including material in its application without introducing it by way of an affidavit. The Court found that the error prevented the Respondents from exercising their right to cross-examine the material, and as a result, created the potential for procedural unfairness that could not be overlooked. Notwithstanding, the Court disagreed with the Respondents’ position regarding the degree of harm caused by the Applicant’s error. The Court instead found that the Applicant’s error was trivial and repairable. Accordingly, the Court ordered that the materials mistakenly included in the Applicant’s record be removed and that the Applicant may rectify its mistake and re-enter the materials evidence so long as the Federal Courts Rules were properly followed.

The motion was granted with no order for costs.

By: Bria M. Brown, Carscallen LLP