Document Type

Book Chapter

Publication Date

2013

Subjects

copyright; judicial review; fair dealing; administrative law; tribunals; Copyright Board

Abstract

This paper focuses on judicial review of Copyright Board decisions in Canada’s copyright pentalogy (the five copyright law decisions handed down by the Supreme Court of Canada (SCC) on 12 July 2012). Part I briefly discusses the (recent) history of judicial review of decisions of the Copyright Board. Part II analyzes Abella J’s reasons for judgment in Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 (Alberta (Education)) in light of Rothstein J’s implied suggestion, in his dissenting reasons, that Abella J applied a correctness standard of review as opposed to a reasonableness standard of review. Part III discusses the implications of Alberta (Education) for fair dealing (and specifically the fairness analysis), for future Copyright Board decisions, and for the relationship between the Copyright Board and reviewing courts. This paper concludes that Abella J, in Alberta (Education), applied a reasonableness standard of review consistent with the way in which reasonableness has been applied in Dunsmuir v New Brunswick (Dunsmuir), in numerous SCC decisions handed down post-Dunsmuir, and in several Canadian appellate decisions; that one conclusion that can be drawn from Alberta (Education) is that fairness (in the context of fair dealing) is not as discretionary a concept as it appears to be; and that Abella J’s decision in Alberta (Education) provides reviewing courts with the framework through which they can – defensibly and in a manner consistent with prior jurisprudence – overturn a decision of the Copyright Board in which the Copyright Board applies an approach to copyright that is inconsistent with the purpose of the Copyright Act as interpreted by the SCC, on the basis that it is unreasonable.

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