MODEL DIRECTIVE ON PROCEDURE

This directive outlines the procedure the Board usually follows in considering a proposed tariff and objections thereto. The directive aims to ensure that the proceedings are conducted as efficiently and simply as possible, while providing the appropriate procedural safeguards.

1. Filing and Service of Documents

   Documents are filed with the Board in electronic version, either by email or on another medium (CD-ROM, DVD or USB key) for very large files. Hard copies of the documents must also be delivered to the Board, by mail or by courier, for reception on the same day, to:

   The Secretary General
   Copyright Board of Canada
   56 Sparks Street, Suite 800
   Ottawa, Ontario  K1A 0C9
   Telephone: 613-952-8624

   The electronic version must allow the Board to import the text, in whole or in part, into a word processing software.

   A document filed with the Board by mail or by courier must be accompanied by a list of the names of the persons served.

   Evidence of service must be kept; this will serve to establish that service was effectively made.

   Filing or service of a document is effected on the date that the document is received by the person being served.

2. Comments

   Anyone may comment in writing on any aspect of the proceedings. As a general rule, comments received later than the date by which participants must present or file oral or written arguments, will not be considered. In due course, the Board will forward these comments to participants.

3. Intervenors

   The Board may allow anyone to intervene in the proceedings. The intervention is allowed insofar as the Board finds it useful, given the interest of the person requesting to intervene and the nature of the participation contemplated by that person.

   Anyone who intends to intervene must file with the Board a request to that effect. The request describes the person’s interest in the proceedings and the manner in which the person intends to participate; it must specify whether the person only intends to file written comments, or also wishes to file evidence and cross-examine witnesses.

   A request to intervene should be filed as early as possible. The Board normally will deny leave to intervene if granting the request would unduly postpone the proceedings.

   The Board will advise participants of any request to intervene. A participant may object to the request.

   Intervenors have the same rights and obligations as other participants, unless the Board directs otherwise, and must comply with the rules and deadlines as set out in this directive.

   Intervenors and other participants who support the position of a collective must comply with the deadlines that apply to that collective. At the hearing, they will be asked to submit any evidence they may be allowed to put forward immediately after that collective.

4. List of Exhibits

   The Board issues and updates periodically a list of exhibits filed. A person who has not received a document may obtain a copy from the person who filed it.

5. Format of Documents

   Where possible, documents filed should be of the dimensions 8 1/2" x 11".

6. Subpoenas

   The Board may, upon request or of its own motion, issue a subpoena to require a person to appear at the hearing, to testify and to produce any document the Board may consider helpful. A subpoena is issued by the Secretary General.

7. List of Participants

   Appendix I lists the names and addresses of those who have advised the Board of their intention to participate in the proceedings.

8. Confidential Treatment of Documents

   Any document filed with the Board is placed on the public record unless the Board orders otherwise.

   Issues of confidentiality should be discussed among participants, with a view to reaching an agreement on the way the document should be handled or the information circulated. It is only after this has been done that a request for confidential treatment should be made.

   The request is filed with the Board, with the relevant document. The request must set out the reasons therefor and indicate any way in which the information might be shared with other participants while preserving the confidential nature of the information. The request must be served on all other participants, who will comment on it by the date set for that purpose.

   When ruling on a request for confidential treatment, the Board may order that the document not be put on the public record. It may also order that an abridged or redacted version or part of the document be put on the public record. The order will address the manner and extent to which the document can be disclosed to participants or to their counsel on a confidential basis. The Board may also, of its own motion, and even where the participants have agreed on the issue, decline to treat a document as confidential.

   If a request to treat a document as confidential is denied, the disclosure will be postponed long enough to allow the person who made the request to either withdraw the document, if the Board allows it, or initiate any recourse that the person may see fit to take.

   In all documents filed with the Board, confidential information is highlighted in yellow and highly confidential information is highlighted in blue.

9. Transcripts

   The Board arranges for a commercial service to prepare transcripts of the hearing. Copies may be obtained directly from that firm.

10. Language of Communication

    Participants and witnesses may address the Board and communicate with each other in the official language of their choice. Upon request made to the Secretary General, 14 days before it is required, simultaneous interpretation will be provided at the hearing.

    Documents may be drafted in either official language.

11. Flexibility

    The Board may dispense with or vary any of the provisions of this directive.

1. Interrogatories

   Interrogatories are NOT filed with the Board. They are served on the participant to whom they are addressed, by the date set for that purpose, and presented in the form set out in Appendix II. Interrogatories can be addressed to any participant who is allowed to file evidence or to cross-examine witnesses.

   The Board may, at any time, direct interrogatories to a participant.

2. Objections to Interrogatories

   A participant who receives an interrogatory and who contemplates objecting to it must first attempt to resolve the issue with the person who addressed the interrogatory.

   The person who objects to an interrogatory who contends that the information requested is not available, should offer any alternative available information that may be of assistance to the person who addressed the interrogatory.

   Any remaining misunderstanding must be submitted to the Board for decision. To allow for this, the person who addressed the interrogatory serves on the person who objected and files with the Board, by the date set for that purpose, the interrogatory, the statement of objection and a statement of the grounds in support of maintaining the interrogatory. The Board will dispose of the issue shortly thereafter.

   The fact that information is claimed to be confidential is not a reason for refusing to answer an interrogatory. Such information will be handled pursuant to the Board's order dealing with the issue.

3. Responses to Interrogatories

   Responses must be served on the person who addressed the interrogatory, by the date set for that purpose, and presented in the form set out in Appendix III. Responses to interrogatories are NOT filed with the Board.

4. Responses Considered Incomplete or Unsatisfactory

   The person who finds a response to one of its interrogatories unsatisfactory must send to the person who provided the answer, by the date set for that purpose, a notice of the grounds for so concluding. Any remaining misunderstanding must be submitted to the Board for determination. To allow for this, the person who provided the answer serves on the unsatisfied person and files with the Board, in electronic version only, by the date set for that purpose, the interrogatory, the response, the unsatisfied person’s notice and the grounds upon which the person who provided the response relies to conclude that the response is sufficient. The Board will dispose of the issue shortly thereafter.

5. Filing of Cases

   A case is filed with the Board in electronic version and in 10 copies, and served on all other participants on the date set for that purpose. A case will contain the following documents:

   (i) a statement of case setting out the participant’s arguments and how he or she intends to establish it. The statement will be in the form of a written opening statement and will contain a list of witnesses and an estimate of the time required to present their evidence. It will also contain a detailed explanation of any proposed changes to the current tariff;

   (ii) a statement for each non-expert witness. The statement must be detailed enough to allow the Board to follow easily the evidence as it is presented and to determine, in advance of the hearing, any issue that the evidence and arguments might raise;

   (iii) all expert reports; and

   (iv) all other evidence upon which the participant intends to rely.

   Participants file as evidence only those responses to interrogatories to which they know they intend to refer.

   A modified version of the statement of case may be filed in the course of the proceedings.

   To the extent possible, exhibits are submitted in a three-ring binder. Exhibits are separated by consecutively numbered tabs. Each exhibit bears the abbreviation of the name of the participant producing it, as assigned in Appendix I, together with its consecutive number. Exhibit No. 1 is the statement of case.

   Extremely voluminous source documentation used to prepare derived exhibits is filed in one copy with the Board and is not served on participants. The Board will arrange for reasonable access to such documentation.

   Participants who fail to file a statement of case are deemed to have withdrawn from the proceedings.

6. Reply Evidence

   The collective societies can file supplementary evidence by the date set for that purpose. That evidence should only be in response to the evidence filed by the objectors and not be used to introduce evidence that is not related to the objectors’ evidence or evidence that could reasonably have been filed with the case in chief.

7. Brief on Legal Issues

   Participants may be asked to file a brief on legal issues, along with a list of authorities referred to, by a date to be determined later.

8. Pre-Hearing Conference

   If required, the Board will hold a pre-hearing conference if it may help to simplify or accelerate the presentation of the evidence and the conduct of the proceedings.

9. Filing of Documents During the Hearing

   Filing of documents during the hearing must be kept to a strict minimum. Anyone who intends to file such evidence must provide other participants and the Board with the required copies as soon as possible.

   Participants may be allowed to refer to a response that was not filed as part of their evidence if this becomes necessary as a result of the testimony of an opposing witness, for the purposes of cross-examination or rebuttal.

10. Decision

    The Board will send a copy of the approved tariff, together with reasons for the Board??s decision, to all participants.