DIRECTIVE ON PROCEDURE

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

A. GENERAL PROVISIONS

1. Filing and Service of Documents

   A document may be filed with the Board by delivering it by mail, by courier, by facsimile or by e-mail to:

   The Secretary General
   Copyright Board of Canada
   56 Sparks Street, Suite 800
   Ottawa, Ontario  K1A 0C9
   Telephone: (613) 952-8621
   Telecopier: (613) 952-8630
   E-mail: majeau.claude@cb-cda.gc.ca

   Where possible, participants must provide the Board with an electronic version of any document they file. The electronic version must be in a workable format allowing the Board and the parties to import the text, in whole or in part, into a word processing software.

   A document may be served by mail, by courier or by any electronic means of communication. A document filed with the Board must be accompanied by a list of the names of the persons served.

   Evidence of service must be kept; this will serve, in case of disagreement, 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

   Any person may comment in writing on any aspect of these 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 any person to intervene in these 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.

   Any person intending to intervene must file with the Board a request describing that person's interest in the proceedings and the manner in which the person intends to participate. The request must also specify whether participation will be limited to written comments, or will extend to filing evidence or cross-examining witnesses.

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

   The Board will advise parties of any request to intervene. A party may object to such a request.

   Once allowed to intervene, 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 shall 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 will issue and update 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. Subpoena

   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 Parties

   Appendix I lists the names and addresses of those who have advised the Board of their intention to participate or to intervene in these 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 filed with the Board.

   The request is filed with the Board, with the relevant document. The request shall 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 shall be served on all other participants, who will have one week from the service of the request to comment on it.

   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 version or part of the document be produced, or order that the document 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 person may see fit to take.

9. Transcripts

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

10. Language of Communication

    Participants, intervenors 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.

B. ORDER OF PROCEEDINGS

1. 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.

2. Interrogatories

   The interrogatories are NOT filed with the Board. They must be 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.

3. Objections to Interrogatories

   A participant who receives an interrogatory and who is contemplating objecting to it shall first attempt to resolve the issue with the person who addressed the interrogatory.

   If the objector to an interrogatory contends that the information requested is not available, he/she should then offer any alternative available information that may be of assistance to the person who addressed the interrogatory.

   Any remaining misunderstanding (including issues of confidentiality) must be submitted to the Board for decision. To allow for this, the person who addressed the interrogatory serves on the objector and files with the Board, by the date set for that purpose, one copy of the interrogatory, the statement of the objector's grounds and a statement of the grounds in support of maintaining the interrogatory.

4. 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.

5. Responses Considered Incomplete or Unsatisfactory

   The person who finds a response to one of its interrogatories unsatisfactory shall 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, 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.

6. Filing of Cases

   A case is served on all other participants at the same time it is filed with the Board in 10 copies. A case shall contain the following documents:

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

   (ii) a statement for each non-expert witness. The statement shall 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 should file as evidence only those responses to interrogatories to which they know they intend to refer.

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

   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 must bear 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.

7. Supplementary Evidence

   The collective society can file supplementary evidence by the date provided for this in the timetable. That evidence should only be in response to the evidence filed by the objectors. The collective society should not introduce evidence that is unrelated to the objectors' evidence or evidence it could reasonably have chosen to file earlier with its evidence in chief.

8. 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.

9. Filing of Documents During the Hearing

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

   Participants are always 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 its decision, with reasons therefor, to all participants.

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APPENDIX I

List of Participants

[Name of Participant]        Identification:

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APPENDIX II

(Form of Interrogatories)

File:

1.

2. (...)

Note: The interrogatories are numbered consecutively and are set out one after the other.

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APPENDIX III

(Form of Response to Interrogatories)

 

________________________________
Q. (reproduce interrogatory in full)

R. (set out response)

Note:

1. The identifying code is comprised of:

   - the number of the interrogatory
   - in parentheses, the Appendix I abbreviation of the responding participant

2. The answer to each interrogatory must begin on a separate page.