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Minor procedural mistake should be fixed, not fought

In Canadian Copyright Licensing Agency (Access Copyright) v. Alberta, 2015 FC 268, the Court of Appeal provided guidance on how parties should deal with minor procedural mistakes.

Background

On May 22, 2015 the copyright Board of Canada set certain royalties to be collected for the reproduction of works in Canada by employees of provincial and federal governments. Access Copyright then brought a judicial review seeking to quash the Board’s decision. Pursuant to Rule 317 of the Federal Court Rules, Access requested the materials that were before the Board and not in Access’ possession.

The Board responded indicating that it did not have any relevant material that was not already in Access’ possession. Access then included material purportedly before the Board into its application record without providing a covering affidavit explaining the provenance of teh documents. The Respondents then brought a motion to strike this material from the record arguing that an affidavit was necessary.

Justice Stratas noted that while the dispute may look like a technical issue of no moment it was not. The Rules sit alongside the fundamental general principle that facts must be proven by admissible evidence. Noting that what materials were before an administrative decision maker may sometimes not be entirely clear, the parties are entitled to test each other’s positions through cross-examination. Access’ approach of simply filing the materials without an affidavit, although an innocent mistake, denied the Respondents this opportunity.

Remedy

The Respondents submitted that this “egregious irregularity” should result in Access being completely barred from including the impugned material in its record. Justice Stratas rejected this submission, ordering the impugned material be stuck from the record but providing a schedule for Access to serve an affidavit appending the materials that were before the Boards, for the Respondents to file responding affidavits, for cross-examinations thereon. Justice Stratas concluded by noting:

[34]           This motion was about a minor, fixable mistake. As long as humans are involved in litigating cases, no matter how much they try to prevent mistakes, mistakes like this will sometimes happen, even by excellent counsel. Happily, most procedural mistakes, like the one in this case, do not seriously implicate clients’ rights. Mistakes of this sort should be nothing more than a minor inconvenience during the drive to the ultimate destination—a judicial determination on the merits that to all is proper and fair.

[35]           But here, the parties pulled over to the side of the road and stopped to fight, forgetting the destination. After Access Copyright made its mistake, the respondents wrote, pointing out the mistake. Despite the clarity of the relevant rules, Access Copyright dug in its heels, maintaining its position rather than reassessing it. In reaction to that, the respondents brought their motion. But they too showed inflexibility, forcefully asserting their position that Access Copyright should be prevented in the judicial review from using any of the material it improperly included in its application record, whether or not it was needed by the Court. In counter-reaction to that, Access Copyright brought a counter-motion—one that in the end is unnecessary for this Court to determine—proposing a lesser, more practical remedy. In that counter-motion, it laudably advanced submissions showing an awareness of its mistake. But that changed nothing: everyone has remained stuck on the side of the road.

[36]           All have acted in good faith, representing their clients’ interests vigorously, advocating their positions with characteristic excellence. But here initial intransigence begat a motion with remedial overreach, and remedial overreach begat a counter-motion. Forgotten was the destination: this Court, as a practical problem-solver, simply wants to determine the judicial review properly and fairly on the merits, using a proper and fair evidentiary record. The focus should have been on a fix, not a fight

A copy of the decision may be obtained here.