Executive Summary: Key Legal and Evidentiary Issues

• The Copyright Board exceeded its jurisdiction during redetermination by addressing issues beyond those remitted by the Federal Court of Appeal.

• The Board’s adjustments for double-counting and Fox News payments were not authorized by the original judgment.

• A 25% profit margin applied to U.S. proxy services contradicted the appellate court’s earlier finding that 10% was the only correct figure.

• The Board's interpretation of its mandate on remittal was found both incorrect and unreasonable.

• The Court emphasized the limits of redetermination following a partial judicial review, focusing on strict adherence to remittal directions.

• Applicants were granted their requested tariff rates, capped by previously published limits, with costs awarded.

Facts and outcome of the case

The case involved a group of copyright collectives (including the Copyright Collective of Canada, Canadian Broadcasters Rights Agency, and SOCAN) who challenged a redetermination decision made by the Copyright Board of Canada. The redetermination, issued in January 2024, followed a 2021 Federal Court of Appeal decision that identified two specific errors in the Board’s original 2019 royalty rate ruling for the retransmission of distant television signals from 2014 to 2018.

The original appellate ruling had found that the Board had (1) used incomplete and outdated payment data for Canadian proxy services, and (2) applied an incorrect 25% profit margin instead of the 10% margin recommended by the BDUs’ own expert. The court remitted the matter to the Board solely to correct these two errors.

However, on redetermination, the Board went further. It removed payments it deemed to be double-counted (regarding SD/HD services) and added previously unaccounted payments by Telus related to Fox News. It also reinstated the 25% profit margin for U.S. proxy services despite the appellate court’s previous conclusion that 10% was the only correct figure. The applicants argued that these actions exceeded the Board’s authority and deviated from the limits imposed by the remittal order.

The Federal Court of Appeal agreed with the applicants. The Court concluded that the Board's expanded redetermination was both jurisdictionally improper and substantively unreasonable. It reaffirmed that the Board had no authority to re-open or revise issues not explicitly remitted by the Court. The Court was particularly critical of the Board’s justification that it was merely correcting other perceived errors, emphasizing that such self-initiated corrections require specific judicial direction or statutory authority, which were absent.

As a result, the Court granted the application for judicial review, set aside the Board’s redetermination, and directed the Board to issue a new certified tariff using the applicants' proposed royalty rates, subject to predefined annual caps. The Court declined to remit the matter again, citing the prolonged delay in finalizing tariffs for a period that ended in 2018.

Finally, the applicants were awarded costs, although no specific amount was disclosed in the judgment.