Michael Shortt

The appellants challenged the Federal Court of Appeal's decision setting aside the Copyright Board of Canada's tariff determination, which had held that s. 2.4(1.1) of the Copyright Act created a separate compensable 'making available' right triggering royalties both when works are made available online and again when downloaded or streamed.

The majority held that the Board's interpretation violated the principle of technological neutrality and was inconsistent with the text, structure, and purpose of the Act; correctness was the applicable standard of review as concurrent first instance jurisdiction between courts and the Board constitutes a sixth category of correctness review.

Section 2.4(1.1) was interpreted as clarifying only that s. 3(1)(f) applies to on-demand streams and that a work is performed as soon as it is made available for on-demand streaming, with Canada's obligations under art. 8 of the WIPO Copyright Treaty satisfied through a combination of existing performance, reproduction, and authorization rights.

The concurring minority would have applied a reasonableness standard but agreed the Board's decision was unreasonable for disregarding binding precedent and the principle of technological neutrality.

Appeal dismissed.

The applicant sought a remedy under section 77 of the Official Languages Act, alleging the respondent airport authority failed to communicate in French on its website and social media.

The Federal Court held the respondent breached its language duties, finding its online communications are subject to both section 22 as a head office and section 23 as services to the travelling public.

The Court ordered the respondent to pay $5,000 in damages for deterrence and vindication, alongside $6,000 in costs.

The plaintiff sought leave to file a reply factum to address issues raised by the defendant and the admissibility of an audio recording.

The Federal Court determined that Rule 55 governed the request, requiring special circumstances.

The court found that the plaintiff, an experienced litigant, failed to meet the high threshold for special circumstances and dismissed the motion, awarding elevated costs of $2,650 to the defendant.

The defendants appealed an order of a prothonotary who, on a motion to strike the plaintiffs' action for undue delay under Rule 167, found undue delay but imposed case management rather than dismissing the action.

The prothonotary had also refused the defendants leave to file a reply affidavit detailing post-motion delays.

The Federal Court allowed the appeal, holding that the prothonotary erred in refusing the reply affidavit because it was relevant to the remedy.

Applying the culture shift mandated by Hryniak and Jordan, the Court found that once undue delay is established, an action should presumptively be dismissed unless the defaulting party establishes that an alternative sanction will result in reasonable prosecution.

Given the plaintiffs' continuing delays, failure to provide a litigation plan, and opposition to case management, the Court set aside the prothonotary's remedy and dismissed the action with costs.

The Court dismissed the appeal and upheld the order for a new Tax Court hearing before a different judge after multiple violations of official language rights of witnesses and counsel, and the related interpretation right of the unilingual party.