Judgments

[2000] 1 F.C. 586

A-371-99

Evangelical Fellowship of Canada, Precision Sound Corporation and Western Imperial Magnetics Ltd. (Applicants)

v.

Canadian Musical Reproduction Rights Agency, Neighbouring Rights Collective of Canada, Société de gestion des droits des artistes-musiciens, Société du droit de reproduction des auteurs, compositeurs et éditeurs au Canada, Society of Composers, Authors and Music Publishers of Canada (hereinafter referred to as the “Music Collectives”) and Fuji Photo Film Canada Inc., Sony of Canada Ltd., Memtek Canada Ltd., Maxell Canada, AVS Technologies Inc., Kodak Canada Inc. (hereinafter referred to as the “Canadian Storage Media Alliance” or CSMA) and Copyright Board and The Attorney General of British Columbia and Canatron Corpo-ration, Ms. Mary Anne Epp, d.b.a. Bluedbird Events, Mr. A. Mark Hambridge, for First Evangelical Lutheran Church, Mr. Glenn Howell for St. John’s Shaughnessy Anglican Church, Mr. Wes Klause, Mr. L. Graham Newton, Ms. Katie Wreford, d.b.a. Studio-A-Mirador (hereinafter referred to as “additional non-represented participants”) (Respondents)

Indexed as: Evangelical Fellowship of Canada v. Canadian Musical Reproduction Rights Agency (C.A.)

Court of Appeal, Rothstein J.A.—Toronto, August 12, 13; Ottawa, August 18, 1999.

Practice — Stay of proceedings — Motion for prohibition or stay of proceedings before Copyright Board pursuant to Copyright Act, Part VIII — Constitutionality thereof questioned — Although serious issue raised, case of irreparable harm with respect to imposition of levies if relief not granted not made out — In suspension cases, public interest carrying greater weight in favour of compliance with legislation.

Copyright — Attack on constitutionality of Copyright Act, Part VIII (system for payment of royalties to copyright holders to be imposed by levies on importers, manufacturers of blank tapes) — Whether legislation in respect of copyright or taxation — Motion for prohibition or stay of Copyright Board proceedings dismissed as issues of irreparable harm, balance of convenience favouring respondents.

Part VIII of the Copyright Act was enacted to legalize private copying of sound recordings; to provide a system for the payment of royalties to those with copyrights to be imposed by way of levies on importers and manufacturers of blank audio tapes when sold by them and to delegate to the Copyright Board the power to certify tariffs setting the levies on the sale of the blank tapes by importers and manufacturers. When the Board scheduled a hearing on the tariff of levies, the applicants brought a motion for an order to prohibit, or alternatively to stay, proceedings. It was argued that the legislation was unconstitutional.

Held, the motion should be dismissed.

The tripartite test established in RJR—MacDonald Inc. v. Canada (Attorney General) for interlocutory injunctions, or in this case prohibition or stay of proceedings, was applicable herein.

There was a serious issue to be tried. The applicants’ argument, that the legislation was more in respect of taxation than copyright, and that it had to comply with sections 53 and 54 of the Constitution Act, 1867, was not frivolous or vexatious.

The issue of irreparable harm had to be resolved in favour of the respondents. While the applicants claimed that they would suffer irreparable harm if Part VIII was ultimately found to be unconstitutional, especially since there is no mechanism for the recovery of damages or the reimbursement of levies, the evidence that the Music Collectives had declared their intention to offer an exemption from the collection of the levy to certain classes of users of blank tapes including religious organizations was particularly persuasive with respect to the Evangelical Fellowship. With respect to other applicants, the levies were not being imposed on them but upon importers and manufacturers, who will probably try to pass on the levies. Since the level of the levies and whether they would indeed be passed on in their entirety was not known at this point, the evidence of irreparable harm to these other applicants was also somewhat speculative.

However, the applicants’ argument, that they would incur significant unrecoverable costs in participating in the proceedings before the Copyright Board, costs which will be wasted if Part VIII were eventually held to be unconstitutional, was valid. It was at this point that the argument of the Attorney General of Canada with respect to irreparable harm to the public interest became relevant. In a case where the authority of a law enforcement agency is constitutionally challenged, no interlocutory injunction or stay should issue to restrain that authority from performing its duties to the public unless, in the balance of convenience, the public interest is taken into consideration and given the weight it should carry: Manitoba (Attorney General) v. Metropolitan Stores Ltd. (per Beetz J.). Applying the comments of Sopinka and Cory JJ. in RJR—MacDonald herein, it was not the role of the Court, as a general rule, to evaluate the effectiveness of government action or to determine whether the government is governing well. In carrying out its functions under Part VIII, the Board was acting to promote and protect the public interest reflected therein. It was therefore appropriate to assume that irreparable harm to the public interest would result from the issuance of a writ of prohibition or stay of the Copyright Board proceedings.

In suspension cases, public interest carries greater weight in favour of compliance with the existing legislation. The Courts have generally answered in the negative the question of whether it is equitable and just to deprive the public, or important sectors thereof, from the protection and advantages of impugned legislation, the invalidity of which is merely uncertain, unless the public interest is taken into consideration in the balance of consideration and is given the weight it deserves: Beetz J. in Metropolitan Stores Ltd. In the case at bar, the balance of convenience involving the weighing of irreparable harm on both sides favoured the Attorney General. While the incurring of unrecoverable costs might be sufficient to justify interlocutory relief in other circumstances, as a general rule, it cannot be a factor that justifies the suspension of the operation of legislation and frustrates the will of a democratically elected legislature.

There were two additional considerations for reaching that conclusion. Not only could the applicants have acted earlier, but the Copyright Board has said that it would consider any constitutional question raised before it. Even though there is some doubt as to the jurisdiction of the Board to consider the constitutionality of the statute under which it is proceeding, this means that the applicants would have a forum in which to argue the precise issues that give rise to these prohibition proceedings.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 53, 54, 91(3),(23).

Copyright Act, R.S.C., 1985, c. C-42, s. 79 “audio recording medium” (as enacted by S.C. 1997, c. 24, s. 50), Part VIII (as enacted idem).

CASES JUDICIALLY CONSIDERED

APPLIED:

RJR —MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; (1994), 111 D.L.R. (4th) 385; 164 N.R. 1; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; (1987), 38 D.L.R. (4th) 321; [1987] 3 W.W.R. 1; 46 Man. R. (2d) 241; 25 Admin. L.R. 20; 87 CLLC 14,015; 18 C.P.C. (2d) 273; 73 N.R. 341; Ainsley Financial Corp. v. Ontario Securities Commission (1993), 14 O.R. (3d) 280 (Gen. Div.).

REFERRED TO:

FWS Joint Sports Claimants v. Canada (Copyright Board), [1992] 1 F.C. 487 (1991), 81 D.L.R. (4th) 412; 36 C.P.R. (3d) 483; 129 N.R. 289 (C.A.); CTV Television Network Ltd. v. Canada (Copyright Board), [1993] 2 F.C. 115 (1993), 99 D.L.R. (4th) 216; 46 C.P.R. (3d) 343; 149 N.R. 363 (C.A.); Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; (1991), 81 D.L.R. (4th) 121; 91 CLLC 14,024; 122 N.R. 361; [1991] OLRB Rep 790; Lawson v. Interior Tree Fruit and Vegetable Committee of Direction, [1931] S.C.R. 357; [1931] 2 D.L.R. 193.

MOTION for an order to prohibit, or alternatively to stay, Copyright Board hearings for the certification of tariffs setting levies on the sale of blank audio tapes. Motion dismissed.

APPEARANCES:

Howard P. Knopf for applicants.

Randall J. Hofley for respondent, Canadian Storage Media Alliance.

David R. Collier and Claudine Roy for respondent, Canadian Musical Reproduction Rights Agency.

Edward R. Sojonky for proposed respondent Attorney General of Canada.

Mario Bouchard for intervener, Copyright Board.

SOLICITORS OF RECORD:

Shapiro Cohen, Ottawa, for applicants.

Stikeman, Elliott, Ottawa, for respondent, Canadian Storage Media Alliance.

Ogilvy Renault, Montréal, for respondent, Canadian Musical Reproduction Rights Society.

Deputy Attorney General of Canada for proposed respondent, Attorney General of Canada.

Copyright Board for intervener, Copyright Board.

The following are the reasons for order of the Court rendered in English by

Rothstein J.A.:

ISSUES

[1]        This is a motion for an order to prohibit, or alternatively to stay, proceedings scheduled to commence before the Copyright Board on August 24, 1999. The applicants say that Part VIII of the Copyright Act [R.S.C., 1985, c. C-42][1] which came into force in March 1998 and pursuant to which the proceedings will be conducted is unconstitutional. At the conclusion of argument on Friday, August 13, 1999, the motion was dismissed. I indicated these reasons would follow.

BACKGROUND

[2]        The reasons for, and purpose of, Part VIII of the Copyright Act were explained to the Court by counsel and I summarize them briefly. Individuals make sound recordings of music and other copyrighted works on blank audio recording media (hereinafter referred to as “blank tapes”).[2] Arguably, such “private” copying violated the copyrights of the artists and others who had copyright over the works being copied. However, the rights of copyright holders were said to be practically unenforceable.

[3]        Part VIII was enacted: (1) to legalize private copying (but not pirating, which would be copying for resale); (2) to provide a system for the payment of royalties to those with copyrights to be imposed by way of levies on importers and manufacturers of blank tapes when sold by them; (3) to delegate to the Copyright Board the power to certify tariffs setting the levies on the sale of the blank tapes by importers and manufacturers.

[4]        After the legislation was enacted, Music Collectives, on behalf of the copyright holders, filed proposed tariffs, essentially calibrated and based on a fifteen-minute period of recording time on blank tape. The Board then published the tariffs which initiated a procedure whereby those who intended to object could do so. By August 1998, a very large number of objections had been filed, some on the basis of principle and some on the basis of the amount of the proposed tariff.

[5]        The Board then became involved in scheduling a hearing. Initially, a hearing before the Board was to commence on May 25, 1999. However, that hearing was postponed and is now scheduled to commence on August 24, 1999, unless prohibited or stayed as a result of these proceedings.

[6]        Under Part VIII, a two-year tariff of levies was to be in force as of January 1, 1999. That deadline passed and counsel for the Board advised that the chairman of the Board had indicated that he wished to make a decision so that if a tariff is certified, it will be in place for January 1, 2000. In the meantime, the Music Collectives have waived the collection of levies until January 1, 2000 or as soon as the Copyright Board certifies a tariff, whichever is earlier.

[7]        The applicants are of two types: religious and commercial. The Evangelical Fellowship of Canada is an umbrella organization of 32 religious denominations. They record religious information, e.g. sermons, on blank tapes and distribute them at low or no cost. Precision Sound and Western Imperial sell blank tapes largely on a wholesale basis to customers such as professional musicians. The applicants are resisting the imposition of the levies on blank tapes because they say it will increase their cost of blank tapes significantly and, in the case of Precision Sound and Western Imperial, will render them less competitive in the marketplace in relation to U.S. competitors from whom blank tapes may be purchased in the United States where no levy applies.

[8]        The Attorney General of British Columbia objects to the levy as a user of blank tapes for recording court proceedings. The additional non-represented participants are a small manufacturer of blank tapes, producers for musicians who use blank tapes, and other churches who use blank tapes to record religious messages.

[9]        The applicants, the Attorney General of British Columbia and the additional non-represented participants say their use of blank tapes does not involve the recording of music or other copyrighted material and for that reason, they object to the levy.

[10]      The Music Collectives are organizations established to collect the levies and pay amounts to copyright holders. They are the parties that have filed the proposed tariffs with the Copyright Board.

[11]      The Canadian Storage Media Alliance (CSMA) is an association of importers and manufacturers of blank tapes. Under Part VIII, the levy is imposed upon the sale of blank tapes by the members of the CSMA. The levy may or may not be passed on to the customers of the importers and manufacturers, depending upon market conditions.

[12]      The Attorney General of Canada is involved to defend against the attack on the constitutionality of Part VIII.

[13]      The Copyright Board has intervened to assist the Court if necessary.

SERIOUS ISSUE

[14]      I turn to the usual tripartite test for interlocutory injunctions, or in this case prohibition or stay of the Copyright Board proceedings: serious issue, irreparable harm and balance of inconvenience. As indicated by the Supreme Court of Canada in RJR—MacDonald Inc. v. Canada (Attorney General),[3] the threshold for determining if there is a serious question to be tried is low and the assessment to be made is only preliminary. Once satisfied that the application is not frivolous or vexatious, a motions judge should then proceed to consider the issues of irreparable harm and balance of convenience.

[15]      The applicants say that Part VIII of the Copyright Act is unconstitutional. They say that Part VIII can only be valid federal legislation under subsection 91(23) or 91(3) of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]]: legislation in respect of “Copyrights” or legislation in respect of “raising of Money by any Mode or System of Taxation”. They say that it is not copyright legislation because its net is too wide; there is no nexus in the legislation between the holders of copyrights and the imposition of levies; that the levies are universal on all blank tapes and will be passed on to users of blank tapes who do not record copyrighted material. The applicants point to narrower law in the United States and Australian jurisprudence which they say supports their position. Accordingly, they argue that Part VIII is not copyright legislation under subsection 91(23) of the Constitution Act, 1867.

[16]      Rather than being legislation in respect of copyrights, the applicants submit that Part VIII is legislation in respect of taxation. They say the levies are enforceable by law; they are imposed under the authority of Parliament; they are levied by a public body and they are intended for a public purpose. (See Lawson v. Interior Tree Fruit and Vegetable Committee of Direction.)[4] The applicants say that being a taxation provision, Part VIII must comply with sections 53 and 54 of the Constitution Act, 1867. Sections 53 and 54 provide:

53. Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.

54. It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.

The applicants say there is non-compliance because Part VIII was not introduced by way of a ways and means motion as required by Standing Orders of the House of Commons. They also argue that the Act delegates to the Copyright Board broad discretion to determine on what products the levy is to be imposed and what persons or categories of persons should be exempted from the levy. They submit such broad and sweeping delegation is inconsistent with the requirements of sections 53 and 54.

[17]      The Attorney General of Canada and the Music Collectives, while arguing that Part VIII is constitutional, concede that the applicants’ arguments are not frivolous or vexatious. On the basis of a perfunctory initial consideration of the applicants’ arguments, I too am satisfied that they are not frivolous or vexatious. Beyond this, I should not go. The applicants have established a serious issue.

IRREPARABLE HARM AND BALANCE OF CONVENIENCE

[18]      I turn to irreparable harm. The applicants claim irreparable harm at two levels. The first is with respect to their cost of participating in the proposed hearings of the Copyright Board. The applicants say that if no prohibition or stay is ordered, they will incur significant unrecoverable costs in participating in the proceedings before the Copyright Board, costs which will be wasted if Part VIII of the Copyright Act is eventually held to be unconstitutional. The second is with respect to the levies that will be imposed and passed on to them if the Copyright Board certifies a tariff as a result of the proceedings conducted by it. The applicants say that if a levy is imposed and passed on, it will result in the creation of “grey market activity” in the form of consumers of blank tapes acquiring them in the United States where no levy is imposed. The imposition of levies in Canada will increase costs to users such as the Evangelical Fellowship with the result that there will be a curtailment of religious activity. The purchase of blank tapes in the United States by Canadian consumers will also adversely affect the business of the other applicants. The applicants say there is no mechanism for the recovery of damages or the reimbursement of levies if Part VIII is ultimately found to be unconstitutional.

[19]      With respect to the second aspect of the applicants’ irrevocable harm allegation, the Music Collectives’ evidence is that they have declared their intention to offer an exemption from the collection of the levy to certain classes of users of blank tapes including religious organizations, courts, court reporters, police, recording studios, post-production houses, advertising agencies, broadcasters, record labels and independent artists. The Music Collectives also dispute that the levies could not be recovered if the legislation were found to be unconstitutional, e.g. by means of monies held in trust by the CSMA or the Collectives until the constitutional issue is determined. They also say that even if a stay were ordered, the CSMA members have indicated that they will probably still attempt to raise their prices as of January 1, 2000, to cover potential levies that could be made retroactive to January 1, 2000. Therefore, a stay would not necessarily result in prices not increasing to cover the potential levies.

[20]      The Music Collectives’ evidence is more persuasive than the applicants’ with respect to the second aspect of the applicants’ claim of irreparable harm. The offer to exempt religious organizations is particularly persuasive in so far as the Evangelical Fellowship is concerned. It may be a complete answer to the concerns of the Fellowship. Yet the Fellowship has not taken up the Music Collectives on this offer although it was made in May of 1999.

[21]      It appears details must still be worked out. The Fellowship says the “zero rating scheme” as it is called, is thought by some to be unworkable and too narrow, but the evidence is not clear that the proposal will not work. I do not have evidence that it was put forward by the Collectives in bad faith or that they will not do what they proposed to do. In the circumstances, I must characterize this aspect of the Evangelical Fellowship’s claim to irreparable harm as, at the least, speculative.

[22]      With respect to the impact of the imposition of levies on the other applicants, it is probably true, in a broad economic sense, that anything that increases their costs will adversely impact their business. However, the levies are not being imposed upon them, but upon importers and manufacturers. The importers and manufacturers will probably try to pass on the levies but must take into account the impact on the volume of their sales. At this point, the level of the levies and whether they will indeed be passed on in their entirety is not known. Accordingly, the evidence as to irreparable harm to these other applicants is also somewhat speculative.

[23]      I am not satisfied that the applicants have made out a case of irreparable harm with respect to the imposition of levies if no stay or prohibition is granted.

[24]      However, the first aspect of applicants’ argument, unrecoverable costs of potentially wasted Copyright Board proceedings is viable. The respondents have not undertaken to indemnify the applicants for wasted costs and no other means of recovery has been put forward.

[25]      It is at this point that the argument of the Attorney General of Canada with respect to irreparable harm to the public interest becomes relevant. Counsel for the Attorney General has correctly spelled out the law with respect to the balance of inconvenience and irreparable harm when the public interest is involved and I adopt and follow the jurisprudence cited by the Attorney General. In Manitoba (Attorney General) v. Metropolitan Stores Ltd.,[5] Beetz J. states:

In short, I conclude that in a case where the authority of a law enforcement agency is constitutionally challenged, no interlocutory injunction or stay should issue to restrain that authority from performing its duties to the public unless, in the balance of convenience, the public interest is taken into consideration and given the weight it should carry.

[26]      In Ainsley Financial Corp. v. Ontario Securities Commission,[6] Blair J. stated:

Interlocutory injunctions involving a challenge to the constitutional validity of legislation or to the authority of a law enforcement agency stand on a different footing than ordinary cases involving claims for such relief as between private litigants. The interests of the public, which the agency is created to protect, must be taken into account and weighed in the balance, along with the interests of the private litigants.

[27]      In RJR—MacDonald, supra, Sopinka and Cory JJ. state:[7]

In our view, the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authorities charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the courts should in most cases assume that the irreparable harm to the public interest would result from the restraint of that action

A court should not, as a general rule, attempt to ascertain whether actual harm would result from the restraint sought. To do so would in effect require judicial inquiry into whether the government is governing well, since it implies the possibility that the government action does not have the effect of promoting the public interest and that the restraint of the action would therefore not harm the public interest. The Charter does not give the courts a licence to evaluate the effectiveness of government action, but only to restrain it where it encroaches upon fundamental rights.

While Sopinka and Cory JJ.’s comments pertain to Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] cases, I think the principles they set out must also apply to other constitutional challenges to legislation.

[28]      Part VIII of the Copyright Act is, according to the evidence before me, intended to promote the cultural industry by bolstering Canadian identity and encouraging job creation. The summary [in Bill C-32, An Act to amend the Copyright Act, First reading, April 25, 1996] preceding the amendments in which Part VIII is contained provides in part:

This enactment provides a regime to protect performers’ performances, sound recordings and broadcasters’ communication signals, thereby bringing Canadian legislation into compliance with the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, signed in Rome in 1961.

A remuneration regime is established in relation to the private copying of musical works, performers’ performances and sound recordings. A number of exceptions are added to the rights of copyright owners. These exceptions will be of particular benefit to educational institutions, libraries, archives and museums and to persons with perceptual disabilities.

It is not the role of the Court, as a general rule, to evaluate the effectiveness of government action or to determine whether the government is governing well and I decline to do so. I consider Part VIII as being in the public interest.

[29]      The Copyright Board is charged with establishing the manner of determining levies, varying proposed tariffs and certifying the tariffs, which will result in the imposition and collection of the levies. The levies will be distributed to collective societies in proportions fixed by the Board. In carrying out these functions, the Board is acting to promote and protect the public interest reflected by enactment of Part VIII of the Copyright Act. Upon these findings, it is appropriate for me, according to RJR—MacDonald, supra, to assume that irreparable harm to the public interest will result from the issuance of a writ of prohibition or stay of the Copyright Board proceedings.

[30]      I shall assume, for the purposes of argument, that, at least the Evangelical Fellowship, representing 32 religious denominations, also represents a segment of the public. In incurring potential wasted and unrecoverable costs in proceedings before the Copyright Board, the Evangelical Fellowship will suffer irreparable harm. It is therefore necessary to weigh the public interest considerations on each side.

[31]      In doing so, I would observe that this is a “suspension” case in which the operation of Part VIII is sought to be suspended for all purposes. In suspension cases, public interest carries greater weight in favour of compliance with existing legislation. The rationale is described by Beetz J. in Metropolitan Stores, supra:[8]

… the granting of a stay requested by the private litigants or by one of them is usually aimed at the public authority, law enforcement agency, administrative board, public official or minister responsible for the implementation or administration of the impugned legislation and generally works in one of two ways. Either the law enforcement agency is enjoined from enforcing the impugned provisions in all respects until the question of their validity has been finally determined, or the law enforcement agency is enjoined from enforcing the impugned provisions with respect to the specific litigant or litigants who request the granting of a stay. In the first branch of the alternative, the operation of the impugned provisions is temporarily suspended for all practical purposes. Instances of this type can perhaps be referred to as suspension cases….

Whether or not they are ultimately held to be constitutional, the laws which litigants seek to suspend or from which they seek to be exempted by way of interlocutory injunctive relief have been enacted by democratically-elected legislatures and are generally passed for the common good…. It seems axiomatic that the granting of interlocutory injunctive relief in most suspension cases and, up to a point, as will be seen later, in quite a few exemption cases, is susceptible temporarily to frustrate the pursuit of the common good.

While respect for the Constitution must remain paramount, the question then arises whether it is equitable and just to deprive the public, or important sectors thereof, from the protection and advantages of impugned legislation, the invalidity of which is merely uncertain, unless the public interest is taken into consideration in the balance of consideration and is given the weight it deserves. As could be expected, the courts have generally answered this question in the negative.

In Metropolitan Stores, supra,[9] Beetz J. notes the infrequency of the occasions in which interlocutory relief has been granted to suspend the operation of legislation.

[32]      In the case at bar, I have little difficulty concluding that the balance of inconvenience involving the weighing of irreparable harm on both sides favours the Attorney General. While I recognize that the applicants may incur unrecoverable costs in proceedings before the Copyright Board, I do not think this consideration is sufficient to place this case in that small minority of cases in which the suspension of the operation of legislation can be justified. While the incurring of unrecoverable costs might be sufficient to justify interlocutory relief in other circumstances, I do not think, as a general rule, it can be a factor that justifies the suspension of the operation of legislation and frustrates the will of a democratically elected legislature.

[33]      In this case, there are two additional considerations which impel me to this view. The first is that the applicants could have acted earlier. Part VIII was proclaimed in force in March 1998. The applicants themselves became involved in the proceedings before the Copyright Board in November or December 1998. The applicants say they were unsophisticated and unorganized until recently. However, if this matter is of such concern to them as to warrant the present proceedings, it is difficult not to place some responsibility on them for not taking steps earlier.

[34]      The second is that the Copyright Board has said it will consider any constitutional question raised before it. The applicants will therefore have a forum in which to argue the precise issues that give rise to these prohibition proceedings. I recognize that the jurisdiction of the Copyright Board to consider the constitutionality of the statute under which it is proceeding is not free from doubt. Indeed, that issue was argued before me. I decline to rule on it as I think it deserves consideration by a fully constituted panel of judges as opposed to one judge in an interlocutory motion in the Appeal Division. However, without deciding the issue, I would observe that this Court has held that the Board does have the power to decide questions of law and the Supreme Court of Canada has held that a tribunal that has power to interpret law, holds a concomitant power to determine whether that law is constitutionally valid. FWS Joint Sports Claimants v. Canada (Copyright Board);[10] CTV Television Network Ltd. v. Canada (Copyright Board);[11] Cuddy Chicks Ltd. v. Ontario (Labour Relations Board).[12] To find that the Copyright Board does not have such jurisdiction presents the practical difficulty of the constitutional issues arising before the Federal Court of Appeal on judicial review ab initio without the benefit of a trial record containing relevant constitutional facts.

[35]      I conclude that the issues of irreparable harm and the balance of inconvenience favour the respondents opposing the application.

[36]      For these reasons, the application for a writ of prohibition or alternatively a stay of proceedings before the Copyright Board is dismissed. The parties may present written submissions on the matter of costs.

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