York University - A D - Reply Réplique - Suitable For Posting - FIRST APPLICATION PDF

Osler, Hoskin & Harcourt LLP
Box 50, 1 First Canadian Place

Toronto, Ontario, Canada M5X 1B8
416.362.2111 MAIN
416.862.6666 FACSIMILE
August 31, 2020 John Cotter

[email protected]
Toronto 416.862.5662
Our Matter Number: 11142795
Montréal
By E-Mail
Calgary
Supreme Court of Canada
Ottawa
301 Wellington Street
Ottawa, Ontario K1A 0J1
Vancouver
Attention: David Power, Deputy Registrar

New York
Dear Sir:
Re: File No. 39222 (FIRST APPLICATION) – York University v. The Canadian
Copyright Licensing Agency (“Access Copyright”)
Reply of York University pursuant to Rule 28 of the Rules of the Supreme

Court of Canada, S.O.R./2002-156
These submissions are provided on behalf of York University (“York”) in reply to the
Response of Access Copyright delivered on August 21, 2020, which responded to York’s
application for leave to appeal to this Court from the Federal Court of Appeal Decision. 1
Access Copyright’s Response asserts that the fair dealing issues raised by York were
“manufacturer[ed]”. 2 That is clearly incorrect given that the first issue York raises (the
proper perspective from which the fair dealing analysis should be conducted) responds to
the Federal Court of Appeal’s comment that this Court’s jurisprudence on that question is
internally inconsistent, and that this Court’s most recent word on the issue is per incuriam. 3
Access Copyright’s answer is that the Federal Court of Appeal’s comment was “obiter”
and “perhaps went further than necessary”, and it argues that the Federal Court of Appeal
was correct about how to reconcile this Court’s jurisprudence. 4 Access Copyright’s
argument is flawed on the merits, but more importantly it discounts the significance of the
Federal Court of Appeal holding that this Court’s jurisprudence is inconsistent and wrong.
It is a matter of public importance for this Court to confirm that its jurisprudence is not per
incuriam and ought to be followed.
1
Capitalized terms not otherwise defined have the meanings given to them in the Memorandum of
Argument of York University dated June 19, 2020: Leave Application of York University filed June 19,
2020 (File No. 39222 – First Application) (“York LA”), Vol. II, Tab 3.
2
Memorandum of Argument of Access Copyright dated August 21, 2020 (“Access Copyright Response”),
para. 5: Response of Access Copyright to the Leave Application of York (“Access RLA”), p. 2.
3
Federal Court of Appeal Decision, para. 227 [York LA, Tab 2-C], regarding Society of Composers,
Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36, [2012] 2 S.C.R. 326.
4
Access Copyright Response, para. 47: Access RLA, p. 13.
Page 2
Access Copyright’s Response itself makes the case for the public importance of the fair
dealing issues raised in York’s leave application. Access Copyright makes sweeping
statements regarding the copyright practices of post-secondary and K-12 educational
institutions generally. 5 Implicit in these statements is Access Copyright’s recognition that
the fair dealing issues are not limited to the immediate parties but apply to the educational
sector more broadly. That point was confirmed in York’s leave application, including
through the 25 letters of support filed by educational institutions and other organizations
across Canada. 6
Access Copyright’s concluding argument regarding the “education sector’s copyright bait-
and-switch” particularly makes the case for public importance. Access Copyright alleges
that “York and the entire education sector baited Parliament” in their support for adding
“education” as an allowable fair dealing purpose under s. 29 of the Copyright Act, R.S.C.,
1985, c. C-42. 7 This allegation is inflammatory and completely ignores the impact of this
Court’s copyright pentalogy of nearly a decade ago in 2012 (which was released after the
Parliamentary submissions) on fair dealing in the education sector. 8 In any event, and
importantly for York’s leave application, this confirms that York’s Fair Dealing Guidelines
are based on model guidelines or policies which have been adopted more broadly in the
post-secondary and K-12 education sectors, and that it is a matter of public importance for
this Court to address the fair dealing guidelines at issue. This is not limited to York but is,
as Access Copyright puts it, an issue affecting the “entire education sector”.
York respectfully requests that leave to appeal ought to be granted, with costs in the cause.
Sincerely,
John Cotter
c. Arthur B. Renaud, Asma Faizi, and Guy Régimbald (for Access Copyright)
5
E.g., Access Copyright Response, paras. 11, 70-74: Access RLA, pp. 4, 20-21.
6
Affidavit of Susan Ann Trimble sworn June 19, 2020, Exhibits 1 to 25: York LA, Vol. II, Tab 4-I.
7
Access Copyright Response, para. 74: Access RLA, p. 21.
8
E.g., Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37,
[2012] 2 S.C.R. 345; Society of Composers, Authors and Music Publishers of Canada v. Bell Canada,
2012 SCC 36, [2012] 2 S.C.R. 326.

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Osler, Hoskin & Harcourt LLP

Box 50, 1 First Canadian Place

August 31, 2020 John Cotter

Attention: David Power, Deputy Registrar

Reply of York University pursuant to Rule 28 of the Rules of the Supreme

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