Law Times

Page 14 OctOber 27, 2014 • Law Times www.lawtimesnews.com FEDERAL COURT OF APPEAL Industrial and Intellectual Property COPYRIGHT Incorporation of musical work into audiovisual work was reproduction that attracted royalties Copyright board exercised its mandate under s. 70.2 of Copy- right Act (Can.), to settle terms of licences granted to two broadcast- ers by collective society that ad- ministered reproduction rights. Terms of licence ref lected board's view that royalties were payable with respect to ephemeral copies of works made by broadcasters in normal course of their produc- tion or broadcasting activities. Ephemeral copies were copies or reproductions that existed only to facilitate technological opera- tion by which audiovisual work was created or broadcast. Broad- casters applied for judicial review. Application granted in part. If technological advances required making of more copies of musical work in order to get audiovisual work that incorporated it to mar- ket, those additional copies added value to enterprise and attracted additional royalties. Broadcasters' argument that copy-dependent technology did not add value to enterprise and as result, there was no additional value to share with artists, was essentially economic argument. Board heard exten- sive evidence on argument and its conclusion had evidentiary foundation. There was no basis to interfere with board's conclusion on economic justification. Broad- casters conceded that incorpora- tion of musical work into audio- visual work was reproduction that attracted royalties. Board's rea- soning was grounded in Bishop v. Stevens (1990), 72 D.L.R. (4th) 97, 22 A.C.W.S. (3d) 568 (S.C.C.), where Supreme Court of Canada held that ephemeral recordings of performance of work made solely for purpose of facilitating broad- casting of that performance were, if unauthorized, infringement of copyright holders rights. Bishop v. Stevens continued to remain good law. Entertainment Software Assn. v. Society of Composers, Authors and Music Publishers of Canada (2012), 347 D.L.R. (4th) 193, 216 A.C.W.S. (3d) 218 (S.C.C.) (ESA), restated principle of tech- nological neutrality in copyright law, but provided no guidance as to how court should apply prin- ciple when faced with copyright problem in which technological change was material fact. Nothing in ESA authorized board to cre- ate category of reproductions or copies which, by their association with broadcasting, would cease to be protected by Act. ESA did not overrule Bishop v. Stevens. Com- ments in ESA about technological neutrality had not changed law to point where board erred in find- ing that incidental copies were protected by copyright. However, formula imposed by board was f lawed and discounted formula was amended. Canadian Broadcasting Corp. v. SODRAC 2003 Inc. (Mar. 31, 2014, F.C.A., Marc Noel J.A., J.D. Denis Pelletier J.A., and Johanne Trudel J.A., File No. A-516-12, A-527-12, A-63-13) 241 A.C.W.S. (3d) 434. FEDERAL COURT Immigration REFUGEE STATUS Panel did not consider operational reality of processes Refugee claimant was citizen of Mongolia who claimed protection based on spousal abuse. Refugee Protection Division (RPD) found that claimant's husband was con- victed of criminal offence when in fact he had not been. While her husband had been taken away by police on three occasions, there was no evidence that he received criminal convictions as opposed to administrative detentions. Letter from police indicated that claimant's husband was sen- tenced according to administra- tive law. Claimant's testimony and documentary evidence indicated that recently enacted domestic violence law had been rarely if ever used. RPD referred to test for state protection as being whether Mongolian government was taking steps to address domes- tic violence. RPD denied claim. Claimant applied for judicial re- view. Application granted; deci- sion quashed and matter remitted back for new determination by different panel. RPD referred to test for state protection as being whether Mongolian government was taking steps to address do- mestic violence. That articulation of legal test was error in law. RPD's actual analysis of state protection focused on processes in place to deal with domestic violence. RPD did not consider efficacy or oper- ational reality of those processes. RPD should have confronted fact that claimant had accessed all re- sources which RPD found were available to protect her and was still experiencing serious violence. Therefore, this decision could not be sustained. Osor v. Canada (Minister of Citizenship and Immigration) (Jun. 4, 2014, F.C., Michael L. Phelan J., File No. IMM-2081-13) 241 A.C.W.S. (3d) 428. SELECTION AND ADMISSION No basis for amateur diag- nosis as officer had no exper- tise in field of psychiatry Foreign national, aged 26, was citizen of China who came to Canada on student visa in 2005 after her mother died. Foreign national suffered from mental ill- ness, which according to psychia- trist could be controlled, but not cured. Between December 2008 and September 2010, foreign na- tional was admitted to psychiatric wards on five occasions. Foreign national subsequently enrolled in college and was residing at home of senior official in psychiatric de- partment of major Toronto hos- pital. In denying humanitarian and compassionate claim, officer found that foreign national's psy- chotic depression/lapse was result of separation anxiety as conse- quence of travelling alone to new country and that it was reason- able that her psychosis would di- minish when she was back in her native culture and language and among family and friends. Offi- cer also found that China had suf- ficient medical resources reason- ably available to foreign national to treat her mental illness. Foreign national applied for judicial re- view. Application granted. Immi- gration Officer made fatal error in coming to his own conclusions on source of foreign national's psychiatric problems. It was de- termination made in absence of any evidence to support finding that source of psychiatric prob- lems was culture shock of coming to Canada. There was no basis for amateur diagnosis as officer had no expertise in this field, and there was no medical evidence to sup- port this diagnosis. Culture shock had exacerbated foreign national's medical problems, but was not found to be root cause. Officer's conclusion that return to China would be tantamount to cure was unsupported and bizarre. In considering evidence of mental health treatment in China, officer focused exclusively on services in Shanghai and Beijing and failed to link those few facilities identified with foreign national's ability to access them from her home city. Li v. Canada (Minister of Citizenship and Immigration) (Jun. 6, 2014, F.C., Michael L. Phelan J., File No. IMM-4109-13) 241 A.C.W.S. (3d) 430. ONTARIO CIVIL DECISIONS Appeal GROUNDS Not clear what acts trial judge found rose to level of insubordi- nation, recklessness and/or gross negligence Parties entered into contract where plaintiff was appointed property management com- pany. Defendant condominium corporation terminated agree- ment for cause. In Small Claims action, plaintiff sought damages of $8,303.24 from defendant for breach of contract. Trial judge found that collectively grounds relied on by defendant were sufficient to constitute insub- ordination, recklessness and/ or gross negligence that entitled defendant to terminate agree- ment without notice. Claim was dismissed. Plaintiff appealed. Appeal allowed. Trial judge's rea- sons were not sufficient. What was decided was unclear. It was not clear what acts or omissions trial judge found collectively rose to level of insubordination, reck- lessness and/or gross negligence. Trial judge did not provide an- swers as to why he made finding. There was no window into deci- sion to allow for meaningful ap- pellate review. Maple Ridge Community Management Ltd. v. Peel Con- dominium Corp. No. 231 (Jun. 16, 2014, Ont. S.C.J., David L. Edwards J., File No. CV-13-39- 00) 241 A.C.W.S. (3d) 262. Contempt of Court GROUNDS By unilaterally transferring schools without consent of father mother willfully breached order casELaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT 8JUINPSFUIBOQBHFWJFXTBOEVOJRVF WJTJUPSTNPOUIMZDBOBEJBOMBXMJTUDPNDBQUVSFTZPVSNBSLFU FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an annual Gold or Silver Enhanced listing package. 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