Rules of Procedure
The Copyright Board is currently developing a new set of regulations that will generally apply to all its tariff-setting proceedings. In June 2022, the proposed Copyright Board Rules of Practice and Procedure were published in the Canada Gazette for consultation. The final version of the Rules will be published in the coming months.
These rules codify some of the Board's existing practices, while introducing new requirements for various stages of its proceedings. They also clarify the Board's expectations, ensure that the process is more predictable and consistent, and position Parties and the Board to work together more effectively. An overview of the proposed rules can be found here.
Until the new regulations are made official, the Board will continue its current practice of adapting its Model Directive on Procedure (see below), if required, to specific cases.
Model Directive on Procedure
This directive outlines the procedure the Board intends to follow in considering the proposed tariffs and the objections thereto. It aims to ensure that the proceedings are conducted as efficiently as possible, while providing the appropriate procedural safeguards. Various practice notices complement the Directive.
Filing and Service of Documents
A document is generally filed with the Board in electronic format by delivering it by email to:
The Secretary General
Copyright Board of Canada
Documents in electronic format must contain all structured content information (sometimes referred to as a “searchable” document), such as character and tabular information, as opposed to submitting them as files that contain an image.
A document filed with the Board must be accompanied by a list of the names of the persons served.
Evidence of service must be kept; this will serve to establish that service was effectively made.
Filing or service of a document is effected on the date that the document is received by the person being served.
Anyone may comment in writing on any aspect of these proceedings. As a general rule, comments received later than the date by which participants must present or file oral or written arguments will not be considered. In due course, the Board will forward these comments to participants.
The Board may allow anyone to intervene in these proceedings. The intervention is allowed insofar as the Board finds it useful, given the interest of the person requesting to intervene and the nature of the participation contemplated by that person.
Anyone who intends to intervene shall file with the Board a written request to that effect. The request describes the person’s interest in the proceedings and the manner in which the person intends to participate; it shall specify whether the person only intends to file written comments, or also wishes to file evidence and cross-examine witnesses.
A request to intervene shall be filed as early as possible and no later than the date by which participants must present or file oral or written arguments. The Board will seek comments from participants regarding any request to intervene. Participants may object to the request. The Board normally will deny leave to intervene if it believes that granting the request would unduly postpone the proceedings.
Interveners have such rights and obligations as determined by the Board, and must comply with the rules and deadlines as set out in this directive.
List of Exhibits
The Board will periodically update and issue a list of exhibits filed. Any person who has not received a document may obtain a copy from the person who filed it.
Format of Documents
Documents filed should be of the dimensions 8 1/2" × 11", save for certain exceptions.
Text documents shall be filed in Word format (.doc /.docx) or in PDF format generated from a word processor, save for certain exceptions.
Any table larger than one page should be sent separately as an Excel file to facilitate analysis of the data therein.
Raw data and statistics shall be filed in Excel or comma-separated values (CSV) format.
The Board may, upon request or of its own motion, issue a subpoena to require a person to appear at the hearing, to testify and to produce any document the Board may consider helpful. A subpoena is issued by the Secretary General.
List of Participants
Appendix I lists the names and addresses of those who have advised the Board of their intention to participate in these proceedings. Participants shall inform the Board and other participants of any change regarding their coordinates.
Confidential Treatment of Documents
Any document filed with the Board is placed on the public record unless the Board orders otherwise.
Issues of confidentiality shall be discussed among participants, with a view to reaching an agreement on the way the document or the information should be handled. If no agreement is reached, participants may request that the Board determine the way the document or information should be handled.
If a request to treat a document as confidential is denied, the disclosure will be postponed long enough to allow the person who made the request to either withdraw the document, if the Board allows it, or initiate any recourse that the person may see fit to take.
In all documents filed with the Board, confidential information should be highlighted in yellow and highly confidential information should be highlighted in blue. The cover page of the document should indicate if it contains confidential or highly confidential information.
The Board has arranged for a commercial service to prepare transcripts of the hearing. Copies may be obtained directly from that firm.
Language of Communication
Participants and witnesses may address the Board and communicate with each other in the official language of their choice. Upon written request made to the Secretary General, 14 days before it is required, simultaneous interpretation will be provided at the hearing.
Documents may be drafted in either official language.
The Board may dispense with or vary any of the provisions of this directive.
Order of proceedings
Interrogatories are NOT filed with the Board. They are served on the participant to whom they are posed by the date set for that purpose and presented in the form set out in Appendix II. Interrogatories can be posed to any participant who is allowed to file evidence or to cross-examine witnesses.
The Board may, at any time, direct interrogatories to a participant.
Objections to Interrogatories
A participant who receives an interrogatory and who is contemplating objecting to it shall first attempt to resolve the issue with the person who posed the interrogatory.
The person objecting to an interrogatory who contends that the information requested is not available shall offer any alternative information available that may be of assistance to the person who posed the interrogatory.
Any remaining dispute shall be submitted to the Board for decision. To allow for this, the person who posed the interrogatory serves on the person who objected and files with the Board, by the date set for that purpose, the interrogatory, the statement of objection and a statement of the grounds in support of maintaining the interrogatory. The Board will dispose of the issue as soon as possible.
The fact that information is claimed to be confidential is not a reason for refusing to answer an interrogatory. Such information will be handled pursuant to the Board’s order dealing with the issue.
Responses to Interrogatories
Responses to interrogatories shall be served on the person who posed the interrogatory by the date set for that purpose and presented in the form set out in Appendix III. Responses are NOT filed with the Board.
Responses Considered Incomplete or Unsatisfactory
The person who finds a response to one of its interrogatories unsatisfactory shall send to the person who provided the answer, by the date set for that purpose, a notice of the grounds for so concluding. Any remaining dispute shall be submitted to the Board for determination. To allow for this, the person who provided the answer serves on the unsatisfied person and files with the Board, by the date set for that purpose, the interrogatory, the response, the unsatisfied person’s notice and the grounds upon which the person who provided the response relies to conclude that the response is sufficient. The Board will dispose of the issue as soon as possible.
Filing of Cases
In addition to filing an electronic version, a case is filed with the Board in eight (8) paper copies including one (1) redacted copy, if applicable and served on all other participants on the date set for that purpose. Paper copies must be delivered to the Board by mail or courier to:
The Secretary General
Copyright Board of Canada
56 Sparks Street, Suite 800
Ottawa, ON K1P 5A9
A case shall contain the following documents:
(i) a statement of case setting out the participant’s arguments and how he/she intends to establish it. The statement shall contain a list of witnesses and an estimate of the time required to present their evidence. It shall also contain a detailed explanation of any proposed changes to the current tariff, when applicable;
(ii) the sworn statements or solemn declarations of fact witnesses;
(iii) the expert reports, including the Acknowledgment of Expert Witness Form; and
(iv) all other evidence upon which the participant intends to rely.
Participants shall file as evidence ONLY those responses to interrogatories to which they know they intend to refer. If multiple responses to a same question are filed under a single Tab, their pages must be sequentially numbered and a Table of Content included at the start of the Exhibit. Responses that are not adequately tabbed or page-numbered will be entirely returned to the person who filed it.
To the extent possible, exhibits are submitted in a three-ring binder. Exhibits are separated by consecutively numbered tabs.
Each exhibit must bear the abbreviation of the name of the participant producing it, as assigned in Appendix I, together with its consecutive number. Exhibit No. 1 is the statement of case.
Extremely voluminous source documentation used to prepare derived exhibits is filed with the Board in electronic format and one (1) paper copy is also filed.
Participants who fail to file a statement of case are deemed to have withdrawn from the proceedings.
The participants authorized to file reply evidence shall do so by the date set for in the schedule. That evidence should only be in response to the evidence filed by the others and not be used to introduce evidence that is not related to the other participants’ evidence or evidence that could reasonably have been filed with the case in chief.
Brief on Legal Issues
Participants may be asked to file a brief on legal issues, along with a list of authorities referred to, by a date to be determined later.
The Board can decide to hold a pre-hearing conference if it believes it may help to simplify or accelerate the presentation of the evidence and the conduct of the proceedings.
Filing of Documents During the Hearing
Filing of documents during the hearing must be kept to a strict minimum. Anyone who intends to file such evidence shall provide other participants with the required copies and provide to the Board eight (8) paper copies including one (1) redacted copy, if applicable, as soon as possible.
Participants shall be allowed to refer to a response that was not filed as part of their evidence if this becomes necessary as a result of the testimony of an opposing witness, for the purposes of cross-examination or rebuttal.
List of Participants
|[Name of Participant]||Identification:|
(Form of Interrogatories)
From: [participant(s) addressing the interrogatory]
To: [participant(s) to whom the interrogatory is posed]
Note: The interrogatories are numbered consecutively and are set out one after the other.
(Form of Response to Interrogatories)
|File:||Response to Interrogatory Number
Identifying Code [see note below]
Page 1 of pages
Q. (reproduce interrogatory in full)
R. (set out response)
The identifying code is comprised of:
- the number of the interrogatory
- in parentheses, the Appendix I abbreviation of the responding participant
The answer to each interrogatory must begin on a separate page.