P.S. KNIGHT CO. LTD. v. GORDON KNIGHT, 2018 FCA 222

Date: 20181207 Dockets: A-90-16 A-121-16 Citation: 2018 FCA 222 CORAM: WEBB J.A. RENNIE J.A. GLEASON J.A. BETWEEN: P.S. KNIGHT CO. LTD. and GORDON KNIGHT Appellants and CANADIAN STANDARDS ASSOCIATION Respondent Heard at Toronto, Ontario, on March 1, 2018. Judgment delivered at Ottawa, Ontario, on December 7, 2018. REASONS FOR JUDGMENT BY: GLEASON J.A. CONCURRED IN BY: RENNIE J.A. DISSENTING REASONS BY: WEBB J.A. Date: 20181207 Dockets: A-90-16 A-121-16 Citation: 2018 FCA 222 CORAM: WEBB J.A. RENNIE J.A. GLEASON J.A. BETWEEN: P.S. KNIGHT CO.

LTD. and GORDON KNIGHT Appellants and CANADIAN STANDARDS ASSOCIATION Respondent REASONS FOR JUDGMENT GLEASON J.A. [ 1 ] In this appeal, the appellants seek to set aside the judgment of the Federal Court in Canadian Standards Association v. P.S. Knight Co. Ltd. , 2016 FC 294 ( per Manson J.) as well as the supplemental judgment in Canadian Standards Association v. P.S. Knight Co. Ltd. ,

2016 FC 387 (also per Manson J.). [ 2 ] In the judgment, the Federal Court granted the application of the respondent Canadian Standards Association (the CSA) for copyright infringement, enjoined the appellants from continuing that infringement, ordered them to deliver up to the CSA all infringing copies of the 2015 version of the Canadian Electrical Code,

Part I (the CSA Electrical Code or the Code), as well as all plates or electronic files of the infringing copies, and ordered the corporate appellant (Knight Co.) to pay statutory damages in the amount of $5,000.00. The Federal Court also granted the CSA its costs. In its supplemental judgment, the Federal Court quantified those costs in the amount of $96,336.00 and ordered them to be paid by Knight Co. [ 3 ] For the reasons that follow, I would dismiss both appeals, with costs. I.

The Factual and Statutory Background to these Appeals [ 4 ] It is useful to commence by outlining the relevant factual and statutory background to these appeals. A. The CSA and the CSA Electrical Code [ 5 ] The CSA is a federal not-for-profit corporation governed by the Canada Not-for-profit Corporations Act, S.C. 2009, c. 23. It is engaged in developing, testing and certifying over 3,000 voluntary standards.

One of the most important of these is the CSA Electrical Code, which sets out safety standards for installation and maintenance of electrical equipment in Canada. [ 6 ] The CSA published the first version of CSA Electrical Code in 1927 and has updated and published revised versions of the Code continuously ever since. The CSA sells the CSA Electrical Code and uses the income from these sales to finance the development of the Code and other voluntary standards.

The 2015 version of the CSA Electrical Code is at issue in these appeals. [ 7 ] The CSA has been accredited by the Standards Council of Canada (the Standards Council) as a standards development organization. The Standards Council is a non-agent federal Crown corporation, established pursuant to the Standards Council of Canada Act , R.S.C. 1985, c. S-16, s. 3 (the Standards Council Act ).

According to subsection 4(1) of that Act, the Standards Council’s mandate is to: " […] promote efficient and effective voluntary standardization in Canada, where standardization is not expressly provided for by law and, in particular, to " " […] de faire progresser l’économie nationale, de contribuer au développement durable, d’améliorer la santé, la sécurité et le bien-être des travailleurs et du public, d’aider et de protéger les consommateurs, de faciliter le commerce intérieur et extérieur, et de développer la coopération internationale en matière de normalisation, le Conseil a pour mission d’encourager une normalisation efficiente et efficace au Canada lorsque celle-ci ne fait l’objet d’aucune mesure législative, et notamment : " " " " (

a) promote the participation of Canadians in voluntary standards activities, " " " " a " " ) d’encourager les Canadiens à participer aux activités relatives à la normalisation volontaire; " " (

b) promote public-private sector cooperation in relation to voluntary standardization in Canada, " " " " b " " ) d’encourager la coopération entre les secteurs privé et public en matière de normalisation volontaire au Canada; " " (

c) coordinate and oversee the efforts of the persons and organizations involved in the National Standards System, " " " " c " " ) de coordonner les efforts des personnes et organismes s’occupant du Système national de normes, et de voir à la bonne marche de leurs activités; " " " " (

d) foster quality, performance and technological innovation in Canadian goods and services through standards-related activities, and " " " " d " " ) d’encourager, dans le cadre d’activités relatives à la normalisation, la qualité, la performance et l’innovation technologique en ce qui touche les produits et les services canadiens; " " " " (

e) develop standards-related strategies and long-term objectives, " " e " " ) d’élaborer des stratégies et de définir des objectifs à long terme en matière de normalisation. " " " " in order to advance the national economy, support sustainable development, benefit the health, safety and welfare of workers and the public, assist and protect consumers, facilitate domestic and international trade and further international cooperation in relation to standardization. " " [EN BLANC /BLANK] " [ 8 ] Among other things, the Standards Council is empowered to accredit organizations in Canada that are engaged in standards

development (paragraph 4(1)( d.1 ) of the Standards Council Act ) and to approve standards submitted by such organizations as national standards (paragraph 4(1)(

e) of the Standards Council Act ). The Standards Council has approved the CSA Electrical Code as a national standard. [ 9 ] The introduction to the 2015 version of the CSA Electrical Code states that it is a " “voluntary code for adoption and enforcement by regulatory authorities” " . The Code has been adopted by the federal, provincial and territorial governments and incorporated by reference into legislation and regulations regarding electrical safety. [ 10 ] For example, at the federal level,

section 8.1 of

Part VIII of the Canada Occupational Health and Safety Regulations , SOR/86-304 incorporates the CSA Electrical Code as part of its definition of " “Canadian Electrical Code” " that federally-regulated workplaces and employers are required to comply with in accordance with subsection 8.3(1) of those regulations. [ 11 ] At the provincial and territorial level, the CSA Electrical Code has been incorporated by reference into regulations and statutes setting standards for installation and maintenance of electrical equipment, sometimes with variation for local conditions (see, for example, Electrical Safety Regulation , B.C.

Reg. 100/2004, s. 20; Electrical Code Regulation , Alta Reg. 209/2006, s. 3( a ); The Electrical Code Regulations , R.R.S., c. E-6.3 Reg. 16, s. 3; Manitoba Electrical Code , M.R. 76/2018, s. 1; Electrical Safety Code , O. Reg. 164/99, s. 1; Construction Code , C.Q.L.R., c. B-1.1, r. 2, s. 5.01; General Regulation , N.B. Reg. 84-165, s. 2; Electrical Code Regulations , N.S. Reg. 95/99, s. 3; Canadian Electrical Code Regulations , P.E.I. Reg. EC406/13, s. 2; Electrical Regulations , N.L.R. 120/96, s. 4; Electrical Protection Act , R.S.Y. 2002, c. 65, s. 1.01(1); Electrical Protection Act , R.S.N.W.T. 1998, c.

E-3, s. 1(1); Electrical Protection Act , R.S.N.W.T. (Nu) 1988, c. E-3, s. 1(1)). [ 12 ] The evidence before the Federal Court established that the amendments to the CSA Electrical Code that were included in the 2015 version of the Code were developed by a committee set up under the auspices of the CSA and that members of that committee as well as representatives of the CSA expended time and effort to produce the 2015 version of the CSA Electrical Code.

Members of the committee included two CSA employees as well as several representatives of provincial, territorial and municipal electrical inspection authorities, certain federal departments and agencies and industry, labour and educational associations. The evidence also indicated that the committee members who were not employed by the CSA had signed agreements, assigning to the CSA the copyright in the amendments developed by the committee that were incorporated into the 2015 version of the CSA Electrical Code.

However, the practice of obtaining such assignments appears not to have extended back to the earlier versions of the CSA Electrical Code produced before approximately 2010. [ 13 ] Copyright in the 2015 CSA Electrical Code was registered on April 27, 2015 in favour of the CSA.

There was evidence before the Federal Court indicating that a similar registration was made for the 2012 version of the Code. [ 14 ] The introduction to the 2015 version of the CSA Electrical Code claims copyright on behalf of the CSA, shows the CSA as being the publisher, states that the CSA is the owner or authorized licensee of the copyrighted works and warns that the unauthorized use, modification, copying or disclosure of the CSA Electrical Code may violate the law and lead to legal action. [ 15 ] The evidence before the Federal Court indicated that the CSA Electrical Code was published by the CSA and the Ontario Electrical Safety Authority.

In the Ontario publication, the Electrical Safety Authority specifically acknowledges the CSA’s copyright in the Code and the fact that it has been given permission by the CSA to reproduce the Code. There was no evidence to indicate whether the CSA Electrical Code was similarly published by other provincial or territorial authorities nor to indicate how easy or difficult it might be to obtain a copy of the CSA Electrical Code. B. The Appellants and the Circumstances Giving Rise to the Application by the CSA to the Federal Court [ 16 ] Knight Co. is a commercial competitor of the CSA.

One of the publications offered and sold in the past by Knight Co. was the Electrical Code Simplified (the ECS), a simplified version of the CSA Electrical Code intended for residential applications. It was developed in the 1960’s by Peter Knight, the former president and director of Knight Co. and father of the appellant, Gordon Knight, who is now the president and a director of Knight Co. [ 17 ] At the time the ECS was first developed and published, Peter Knight and the CSA had a good working relationship, providing each other with advance copies of their respective publications.

In 1968 and 1969, they exchanged a series of letters, which included reminders from the CSA that Peter Knight ensure that he not infringe the CSA’s copyright in the Code and make sure that he properly attributed the excerpts from the CSA Electrical Code used in the ECS.

In response, Peter Knight wrote that he was " “very careful to avoid any infringement of C.S.A.’s copyright” " (Affidavit of Gordon Knight, Exhibit 3, Appeal Book, Vol. 2, p. 485) and that " “[i]f we are in fact infringing on C.S.A. copy-right [ sic ] we will take immediate steps to correct this situation” " (Affidavit of Gordon Knight, Exhibit 5, Appeal Book, Vol. 2, p. 490). [ 18 ] A letter sent by the CSA in 1969 gave Peter Knight permission to quote from the CSA Electrical Code, so long as " “recognition of the source is given in a clear manner on those items which are direct quotations” " (Affidavit of Gordon Knight, Exhibit 7, Appeal Book, Vol. 2, p. 495).

In his affidavit filed with the Federal Court, Gordon Knight claims that this permitted use was assigned from Peter Knight to Knight Co. after it was incorporated, though no additional evidence was provided to substantiate this fact, and the CSA claims it did not have knowledge or approve of any such assignment. [ 19 ] In 2004, the CSA offered to purchase Knight Co., but the offer was refused. Following the breakdown in negotiations, the relationship between the parties deteriorated.

In a letter dated July 12, 2007, the CSA offered to grant a licence to Peter Knight personally to reproduce excerpts from the Code that could not be assigned or transferred to any other person or legal entity. No response to that letter was received by the CSA. [ 20 ] Following Gordon Knight’s purchase of Knight Co. in 2010, the CSA wrote to Knight Co. to inform the company that any licence

that may have existed was terminated. In 2012, the CSA discovered that Knight Co. intended to publish a new version of the ECS which is the subject of the action in Federal Court file T-1178-12, which is still pending before that Court. After that action was commenced, the relationship between the parties continued to worsen and Gordon Knight started a website which is intensely critical of the CSA. In response, the CSA launched a defamation proceeding in the Ontario Superior Court of Justice: see Canadian Standards Association v. P.S. Knight Co. Ltd. , 2015 ONSC 7980 and 2016 ONSC 896 .

That proceeding appears still to be pending. [ 21 ] At the behest of Gordon Knight, a Member of Parliament asked questions in the House of Commons in 2013 relating to the federal government’s perspective on the CSA. The Minister of Industry explained that the CSA was not a regulatory entity, but rather a not-for- profit-membership-based association.

The Minister further explained the federal government’s view that standards development organizations such as the CSA " “maintain the intellectual property and copyright of voluntary standards that are referenced in regulations” " (Affidavit of Doug Morton, Exhibit 14, House of Commons Debates, 41 st Parliament, 2nd Session, No. 026 (November 28, 2013), Appeal Book, Vol. 1, pp. 324-327). [ 22 ] In 2016, Knight Co. reproduced and threatened to distribute a complete and identical copy of the 2015 version of the CSA Electrical Code at one-third the price the CSA charges, advertising as follows: Why purchase the PS Knight edition of the CEC?

Same Code – Different Price PS Knight’s Code Book • $60 CSA’s Code book • $180 You save $120. All the Code at 1/3 the cost! (Affidavit of Doug Morton, Appeal Book, Vol. 1, Tab 10, p. 117, para. 37) [ 23 ] In response, the CSA initiated the application under Rules 61 and 300 of the Federal Courts Rules , SOR/98-106, and the Copyright Act , R.S.C. 1985, c. C-42 that gave rise to the judgments under appeal. C.

The Statutory and Regulatory Framework for Publication and Reproduction of Statutes and Regulations [ 24 ] It is convenient to next summarize the framework that applies to the publication and reproduction of statutes and regulations. As the discussion that follows demonstrates, this framework does not apply to materials incorporated by reference into statutes or regulations, like the CSA Electrical Code.

(1) Federal [ 25 ] At the federal level, original statutes and nearly all original regulations are published by the Queen’s Printer: Publication of Statutes Act , R.S.C. 1985, c. S-21, s. 10; Statutory Instruments Act , R.S.C. 1985, c. S-22, ss. 10(1), 11(1) . (

Section 15 of the Statutory Instruments Regulations , C.R.C., c. 1509 exempts certain regulations from publication on national security and other grounds.) The Queen’s Printer for Canada is an " “officer of the Department [of Public Works and Government Services]” " and " “exercise[s] [his or her] printing and publishing functions” " , including those " “assigned […] by the Minister [of Public Works and Government Services]” " , " “under the supervision of the Minister” " : Department of Public Works and Government Services Act , S.C. 1996, c. 16, s. 19.

Likewise, the federal Minister of Justice and Attorney General maintains and publishes the consolidated statutes and regulations: Legislation Revision and Consolidation Act , R.S.C. 1985, c. S-20, ss. 2, 26 , 28(1) . The Revised Statutes and supplements to them were printed and distributed in accordance with the Revised Statutes of Canada, 1985 Act , R.S.C. 1985, c. 40 (3rd Supp.), ss. 8 , 15 . [ 26 ] The relevant

definitions in the Statutory Instruments Act exclude from the definition of a " “regulation” " and " “statutory instrument” " materials that are incorporated by reference into a regulation. In this regard, subsection 2(1) of the Statutory Instruments Act defines a " “regulation” " as meaning a " “statutory instrument” " : " (

a) made in the exercise of a legislative power conferred by or under

an Act of Parliament, or " " " " a " " ) soit pris dans l’exercice d’un pouvoir législatif conféré sous le régime d’une loi fédérale; " " " " (

b) for the contravention of which a penalty, fine or imprisonment is prescribed by or under

an Act of Parliament, " " " " b " " ) soit dont la violation est passible d’une pénalité, d’une amende ou d’une peine d’emprisonnement sous le régime d’une loi fédérale. " " " " and includes a rule, order or regulation governing the practice or procedure in any proceedings before a judicial or quasi-judicial body established by or under

an Act of Parliament, and any instrument described as a regulation in any other Act of Parliament; " " Sont en outre visés par la présente définition les règlements, décrets, ordonnances, arrêtés ou règles régissant la pratique ou la procédure dans les instances engagées devant un organisme judiciaire ou quasi judiciaire constitué sous le régime d’une loi fédérale, de même que tout autre texte désigné comme règlement par une autre loi fédérale. " [ 27 ] Subsection 2(1) of the Statutory Instruments Act defines a " “statutory instrument” " as meaning:

" ( a ) […] any rule, order, regulation, ordinance, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established " " a " " ) Règlement, décret, ordonnance, proclamation, arrêté, règle, règlement administratif, résolution, instruction ou directive, formulaire, tarif de droits, de frais ou d’honoraires, lettres patentes, commission, mandat ou autre texte pris : " " " " (

i) in the execution of a power conferred by or under an Act of Parliament, by or under which that instrument is expressly authorized to be issued, made or established otherwise than by the conferring on any person or body of powers or functions in relation to a matter to which that instrument relates, or " " " " (

i) soit dans l’exercice d’un pouvoir conféré sous le régime d’une loi fédérale, avec autorisation expresse de prise du texte et non par simple attribution à quiconque — personne ou organisme — de pouvoirs ou fonctions liés à une question qui fait l’objet du texte, " " " " (ii) by or under the authority of the Governor in Council, otherwise than in the execution of a power conferred by or under

an Act of Parliament, " " [emphasis added] " " (ii) soit par le gouverneur en conseil ou sous son autorité, mais non dans l’exercice d’un pouvoir conféré sous le régime d’une loi fédérale; " " [mon soulignement] " [ 28 ] In accordance with the foregoing, a regulation must be a statutory instrument. Hence, something that is not a statutory instrument cannot be a regulation.

And, to be a statutory instrument, the instrument must either be issued, made or established pursuant to a power established under federal legislation under which the instrument is expressly authorized to be issued, made or established or must have been issued, made or established by or under the non-statutory authority of the Governor in Council. [ 29 ] Neither can be said of the CSA Electrical Code. It was not issued, made or established by or under the non-statutory authority of the Governor in Council. Nor was it made or established in the execution of a power by or under

an Act of Parliament under which it was expressly authorized to be issued because it was not issued under the authority of the Standards Council Act or any other legislation. Rather, the CSA Electrical Code was developed and issued by the CSA, a private corporation. The fact that the Standards Council has recognized the CSA Electrical Standard as a national standard and that the CSA has been accredited by the Standards Council does not transform the CSA Electrical Code into a statutory instrument. As was noted by the British Columbia Court of Appeal in R. v.

Sims , 2000 BCCA 437 , 148 C.C.C. (3d) 308 at para. 32 : The Canadian Standards Association is a voluntary non-statutory organization. In developing standards and publishing them, the Association does not exercise powers conferred by or under

an Act of Parliament and therefore its standards cannot be regarded as “statutory instruments” or “regulations” within the meaning of the Statutory Instruments Act . [ 30 ] The recently-enacted federal Incorporation by Reference in Regulations Act , S.C. 2015, c. 33 recognizes that standards like the CSA Electrical Code need not be published in accordance with the requirements set out in the Statutory Instruments Act . This Act amends the Statutory Instruments Act to provide for an express power to incorporate by reference in regulations: " 18.1

(1) Subject to subsection (2), the power to make a regulation includes the power to incorporate in it by reference a document — or a part of a document — as it exists on a particular date or as it is amended from time to time. " " 18.1

(1) Sous réserve du paragraphe (2), le pouvoir de prendre un règlement comporte celui d’y incorporer par renvoi tout ou

partie d’un document, soit dans sa version à une date donnée, soit avec ses modifications successives. " [ 31 ] Following these amendments, subsection 18.3(1) of the Statutory Instruments Act requires that the appropriate authority, usually the minister responsible for the administration of a regulation, ensure that material that is incorporated by reference is " “accessible” " , though that term is left undefined and has yet to be interpreted in a reported decision.

Section 18.4 provides that publication in the Canada Gazette of material incorporated by reference is not required, reflecting the understanding that one of the advantages of incorporation by reference is the possibility of bypassing the formal requirements of the Statutory Instruments Act concerning publication. [ 32 ] Thus, under federal law, the CSA Electrical Code is not a regulation and need not be published by the federal government, although the appropriate authority must ensure that it is accessible. [ 33 ] The appellants point to the Reproduction of Federal Law Order , SI/97-5 (the Reproduction of Federal Law Order), which allows for the copying of federal enactments and decisions, asserting that the Reproduction of Federal Law Order provides authority for Knight Co. to copy and sell the CSA Electrical Code.

I disagree. [ 34 ] The Reproduction of Federal Law Order provides that:

Anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally- constituted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version.

" " " T " " oute personne peut, sans frais ni demande d’autorisation, reproduire les textes législatifs fédéraux, ainsi que leur codification, et les dispositifs et motifs des décisions des tribunaux judiciaires et administratifs de constitution fédérale, pourvu que soient prises les précautions voulues pour que les reproductions soient exactes et ne soient pas présentées comme version officielle.

" [ 35 ] The term " “enactment” " is not defined in the Reproduction of Federal Law Order , but, in my view, must be understood as only encompassing statutes enacted by Parliament and regulations made by the Governor in Council or otherwise under statutory authority. The term does not include materials incorporated by reference into a regulation that need not be published in the manner contemplated by the Statutory Instruments Act . [ 36 ] The federal

Interpretation Act, R.S.C. 1985, c. I-21, s. 2(1) defines an enactment as meaning " “an Act or regulation or any portion of

an Act or regulation” " , and a regulation as including: " an order, regulation, rule, rule of court, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established " " Règlement proprement dit, décret, ordonnance, proclamation, arrêté, règle judiciaire ou autre, règlement administratif, formulaire, tarif de droits, de frais ou d’honoraires, lettres patentes, commission, mandat, résolution ou autre acte pris : " " " " (

a) in the execution of a power conferred by or under the authority of

an Act, or " " " " a " " ) soit dans l’exercice d’un pouvoir conféré sous le régime d’une loi fédérale; " " (

b) by or under the authority of the Governor in Council; " " b " " ) soit par le gouverneur en conseil ou sous son autorité. " [ 37 ] Although the

definitions in subsection 2(1) of the

Interpretation Act are stated to apply for the purposes of the

Interpretation Act itself, paragraph 15(2) (

b) of the

Interpretation Act provides that: Where an enactment contains an

interpretation

section or provision, it shall be read and construed " " " Les dispositions définitoires ou interprétatives d’un texte : " […] " […] " (

b) as being applicable to all other enactments relating to the same subject- matter unless a contrary intention appears. " b " " ) s’appliquent, sauf indication contraire, aux autres textes portant sur un domaine identique. " [ 38 ] The

Interpretation Act and the Reproduction of Federal Law Order relate to the same subject matter, namely federal enactments. As can be inferred from R. v. Hay , 2010 SCC 54 , [2010] 3 S.C.R. 206 at para. 4 and British Columbia Ferry Corp. v. M.N.R. , 2001 FCA 146 , [2001] 4 F.C. 3 at para. 13 , for the rule in paragraph 15(2) (

b) of the

Interpretation Act to apply, the enactments need not relate to an identical subject-matter so long as there is sufficient similarity among their subject-matters. Such similarity exists here. Therefore, the definition of " “enactment” " in the

Interpretation Act should be applied to interpret the term as it is used in the Reproduction of Federal Law Order. [ 39 ] For the same reasons set out above in the context of the Statutory Instruments Act , the CSA Electrical Code is not a regulation and, consequently, not an enactment within the meaning of the

Interpretation Act and the Reproduction of Federal Law Order . [ 40 ] This

interpretation is shared by the federal government. As noted by the respondent, the federal Department of Innovation, Science and Economic Development has indicated on its website that the Reproduction of Federal Law Order " “does not apply to any materials that have been copyrighted privately or separately by a third party, and that happen to have been included with, added to, or referred to in the Government of Canada legislation, statute, regulation and/or decision” " . (https://www.ic.gc.ca/eic/site/icgc.nsf/eng/07415.html#p3.2)

(2) Provincial and Territorial [ 41 ] Most provinces and territories have dealt with these issues in a similar fashion and require that the Queen’s Printer (or equivalent official) publish original statutes and regulations and allow for the publication of consolidations: Queen’s Printer Act , R.S.B.C. 1996, c. 394, ss. 5, 7 ; Regulations Act , R.S.B.C. 1996, c. 402, s. 5(1); Queen’s Printer Act , R.S.A. 2000, c. Q-2, s. 3; Regulations Act , R.S.A. 2000, c. R-14, s. 3(1); Queen’s Printer Act , R.S.S. 1978, c. Q-3, ss. 3 - 4 ; Regulations Act, 1995 , S.S. 1995, c.

R-16.2, s. 6(1); Statutes and Regulations Act , C.C.S.M., c. S207, ss. 5, 16 , 23 ; Legislation Act, 2006 , S.O. 2006, c. 21, Sched. F., ss. 15(1) , 25(1) ; An Act respecting the Centre de services partagés du Québec , C.Q.L.R., c. C-8.1.1, s. 41; An Act respecting the Compilation of Québec Laws and Regulations , C.Q.L.R., c. R-2.2.0.0.2; Regulations Act , C.Q.L.R., c. R-18.1, s. 15; Queen’s Printer Act , R.S.N.B. 2011, c. 214, ss. 3(2), 6(1) , (3) ; Communications and Information Act , R.S.N.S. 1989, c. 79, ss. 6, 7(1) ; Regulations Act , R.S.N.S. 1989, c. 393, s. 4(1); Queen’s Printer Act , R.S.P.E.I. 1988, c.

Q-1, s. 4(1); Statutes and Subordinate Legislation Act , R.S.N.L. 1990, c. S-27, ss. 7, 8(1) , 11(1) ; Public

Printing Act , R.S.Y. 2002, c. 180, s. 5; Regulations Act , R.S.Y. 2002, c. 195, s. 3(1); Public Printing Act , R.S.N.W.T 1988, c. P-15, ss. 2, 3 ; Statutory Instruments Act , R.S.N.W.T. 1988, c. S-13, s. 9(1); Public Printing Act , R.S.N.W.T. (Nu.) 1988, c. P-15, ss. 2, 3 ; Statutory Instruments Act , R.S.N.W.T. (Nu.) 1988, c.

S-13, s. 1(1). [ 42 ] Most provinces and territories also exempt standards incorporated by reference into regulations from the usual publication requirements that apply to regulations: British Columbia Regulations Act , s. 1 (definition of " “regulation” " ); Alberta Regulations Act , para. 1(2)( d ) (definition of " “regulation” " ); Saskatchewan Regulations Act, 1995 , s. 2 (definition of " “regulation” " ); Manitoba Statutes and Regulations Act , para. 8(2)( b ); Ontario Legislation Act, 2006 , para. 62(4)( a ) (by implication); Quebec Regulations Act , s. 16(1); Nova Scotia Regulations Act , para. 3(5)( c ); Prince Edward Island Queen’s Printer Act , para. 4(1)( a ) (by implication); Newfoundland and Labrador Statutes and Subordinate Legislation Act , para. 9(1)( e ); Yukon Regulations Act , s. 1 (definition of " “regulation” " ) (by implication); Northwest Territories Statutory Instruments Act , s. 9(3); Nunavut Statutory Instruments Act , s. 9(3). [ 43 ] Some provinces and the territories also allow for reproduction of statutes and regulations (but not copyrighted material incorporated by reference in them) in a fashion analogous to that provided for in the Reproduction of Federal Law Order : British Columbia Queen’s Printer Licence (http://www.bclaws.ca/standards/2014/QP-License_1.0.html); Alberta (http://www.qp.alberta.ca/copyright.cfm); Saskatchewan (http://www.publications.gov.sk.ca/freelaw/index.cfm?fuseaction=content.display&id=78D82F52-0E92-4934- 9C5521C6046079BF); Manitoba (https://www.gov.mb.ca/legal/mb_laws.html); Ontario (https://www.ontario.ca/page/copyright- information-c-queens-printer-ontario#section-1); Quebec (http://www.droitauteur.gouv.qc.ca/en/copyright.php); New Brunswick (http://www2.gnb.ca/content/gnb/en/departments/attorney_general/acts_regulations/content/disclaimer_and_copyright.html); Prince Edward Island (https://www.princeedwardisland.ca/en/information/executive-council-office/website-disclaimer-and-copyright-policy); Nova Scotia (https://nslegislature.ca/legal/copyright); Newfoundland and Labrador (https://www.assembly.nl.ca/CopyrightPrivacyStatement.aspx); Yukon Reproduction of Yukon Law Order , O.I.C. 2000/52; Northwest Territories (https://www.justice.gov.nt.ca/en/legislation/#gn-filebrowse-0:/); Nunavut (https://www.nunavutlegislation.ca/). [ 44 ] Alberta, Newfoundland and Labrador, Ontario and Yukon expressly require that the CSA Electrical Code, as amended, be made available to the public in some form: Safety Codes Act , R.S.A. 2000, c.

S-1, s. 65(7); Public Safety Act , S.N.L. 1996, c. P-41.01, s. 34(4); Ontario Electrical Safety Code , s. 3; Ontario Legislation Act, 2006 , s. 62(4); Yukon Electrical Protection Act Regulation, 1992 , O.I.C. 1992/017, s. 19. There is seemingly no equivalent statutory requirement in the other provinces and territories. II. The Decision Below [ 45 ] With this background in mind, I turn now to review the decision of the Federal Court.

In its Reasons, the Federal Court found that copyright subsisted in the 2015 version of the CSA Electrical Code, that the CSA owned that copyright and that Knight Co. could not rely on the defences of fair dealing or licence. [ 46 ] The Federal Court began its analysis by considering the question of whether copyright subsisted in the 2015 version of the CSA Electrical Code. It discounted the CSA’s certificate of registration as presumptive evidence, viewing as suspicious the fact the 2015 registration had not occurred until three days after the commencement of the CSA’s application.

However, the Federal Court did not mention the evidence that indicated that the CSA had likewise obtained a registration in 2012 with respect to the previous version of the CSA Electrical Code. [ 47 ] Despite rejecting the certificate of registration, the Federal Court found that the CSA was entitled to the presumptions of ownership and validity created by paragraph 34.1(2) (

a) of the Copyright Act , which provides that if the name of the author is indicated on the work in the usual manner, there is a presumption that the author owns valid copyright.

In so concluding, the Federal Court did not discuss the fact that the CSA is a corporate entity and that contributions to the 2015 CSA Electrical Code were made by individual members of the committee, the majority of whom were employees of organizations other than the CSA. [ 48 ] The Federal Court then moved on to reject the appellants’ arguments that the CSA did not exercise sufficient skill and judgment in compiling the works of others and that the Code is not sufficiently original to justify copyright protection, holding that the CSA Electrical Code " “does in fact involve significant skill and judgment” " , concluding that considerable time and effort was expended to produce it. [ 49 ] Next, the Federal Court rejected the appellants’ argument that the Crown owned the copyright by reason of the fact that the Code is incorporated by reference into provincial and federal statutes and regulations and the argument that public policy militated against law being copyrighted.

In so concluding, the Federal Court referred to the fact that the CSA is independent of government and that the CSA Electrical Code is a voluntary standard that legislators incorporate by reference into law at their own discretion. In addition, the Federal Court referred to the above-mentioned statements from the Minister of Industry and concluded that there was no evidence that the federal Crown or any provincial Crown claimed copyright in the CSA Electrical Code.

In concluding on this issue, the Federal Court stated that: […] in light of the fact that the CSA has undertaken significant effort and expense [to] produce and publish the CSA Code, it would be contrary to a purposive construction of the Copyright Act to strip the CSA of its rights in the 2015 CSA Code simply because certain provinces have incorporated it into law. (Reasons, para. 40) [ 50 ] Having found that copyright subsists in the 2015 Code, the Federal Court next considered whether the CSA owned that copyright.

Since the CSA is a corporation, the appellants argued the CSA could own copyright only to the extent it had obtained valid assignments from the authors. The appellants invited the Federal Court to draw an adverse inference from the fact the only evidence of assignments adduced by the CSA was in the form of a general statement in the affidavit filed by a representative of the CSA.

The Federal Court declined to draw the inference, noting that the CSA had obtained executed assignments from authors who contributed to improvements in the 2012 and 2015 editions, which evidence was provided to the appellants during discovery in the pending action before the Federal Court. The Federal Court thus agreed with the CSA that the appellants had failed to produce any credible evidence to dispute the CSA’s

ownership. [ 51 ] The Federal Court then turned to the question of whether the appellants had a valid defence. It first considered whether the appellants had a licence to reproduce the 2015 version of the CSA Electrical Code and rejected the appellants’ submission that the correspondence between the parties in the 1960’s amounted to a subsisting perpetual licence to reproduce the CSA Code, concluding that the letters (

i) were addressed to a non-party, Peter Knight; (ii) did not purport to confer on Peter Knight the right to assign the permission to the appellants; (iii) pertained to a booklet made in 1969, not a copy-cat Code made in 2015; (iv) at best, provided a permission to quote from CSA’s 1969 Code, not copy the entirety of the 2015 Code while passing it off as the appellants’ work; and (

v) the 1969 letters could not be read as a perpetual and non-revocable licence in light of the fact that the CSA provided express notice of termination in both 2007 and 2011. [ 52 ] The Federal Court next considered whether the appellants could avail themselves of the defence of fair dealing and concluded that the exception could not apply because " “[w]hen 100% of a work is copied, the dealing cannot be fair” " (Reasons, para. 59).

The Federal Court also found there was no merit to the argument that the Knight Co. version of the CSA Electrical Code was for educational purposes, as it was a competitive commercial undertaking by the appellants to compete with the 2015 version of the CSA Electrical Code. It therefore concluded that Knight Co. had infringed CSA’s copyright and granted the remedies detailed above. III.

The Issues in these Appeals [ 53 ] Having outlined the foregoing background, I now move to detail the various arguments made by the parties in these appeals. [ 54 ] The appellants first submit that the Federal Court erred in concluding that the CSA Electrical Code can be the subject of copyright. Because it is incorporated into various statutes and regulations, the appellants say that the CSA Electrical Code is law and, relying principally upon American case law, say that there cannot be any copyright in the law.

The appellants also assert public policy reasons why CSA cannot own the copyright in the CSA Electrical Code, submitting that the rule of law requires that the Code be available to all Canadians. Closely connected to this argument, the appellants submit, in the alternative, that if the CSA Electrical Code may be the subject of copyright, such copyright belongs to the Crown, either by virtue of the Crown’s prerogative rights and privileges outside the Copyright Act or by virtue of

section 12 of the Copyright Act , which provides that: " Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year. " "

Sous réserve de tous les droits ou privilèges de la Couronne, le droit d’auteur sur les œuvres préparées ou publiées par l’entremise, sous la direction ou la surveillance de Sa Majesté ou d’un ministère du gouvernement, appartient, sauf stipulation conclue avec l’auteur, à Sa Majesté et, dans ce cas, il subsiste jusqu’à la fin de la cinquantième année suivant celle de la première publication de l’œuvre.

" [ 55 ] The appellants further say that copyright cannot subsist in the 2015 CSA Electrical Code because it lacks the originality necessary for copyright, is a collaborative product, created through a consensus process more analogous to a legislative committee than an individual author and is, as law, " “a matter of fact and evidence to be determined by the Judge” " and, accordingly, cannot be copyrighted as copyright cannot apply to facts (appellants’ memorandum of fact and law, at paras. 98-103). [ 56 ] In response to these arguments, the CSA submits that the appellants did not raise these arguments in their notice of appeal and are therefore foreclosed from making them.

Subsidiarily, the CSA contends that the American case law relied upon by the appellants is inapplicable in Canada, that copyright in this country is a creature of statute and that, under

section 5 of the Copyright Act , the CSA Electrical Code is capable of being the subject of copyright. The CSA also says that Crown prerogative does not extend to the CSA Code, underscoring the position taken by the federal Minister of Industry. As for

section 12 of the Copyright Act , the CSA asserts that the CSA Electrical Code was not prepared under the direction or control of the Crown and therefore submits that the

section is inapplicable. [ 57 ] The appellants next argue, in the further alternative, that in the event the CSA Electrical Code may be the subject of copyright and such copyright is not owned by the Crown, the Federal Court erred in holding that the CSA could rely on paragraph 34.1(2) (

a) of the Copyright Act because the presumption in that paragraph cannot apply to a corporation. They also say that, in the absence of the presumption, the burden fell on the CSA to establish it owned the copyright, which it did not and could not do in the absence of production of the assignments from the individuals who developed the CSA Electrical Code.

As the authors of the 2015 Code were employees of government and private companies, whose contributions were made within the ambit of their employment, the appellants say that the CSA had the onus of proving that the authors were capable of assigning their copyright, given the subsisting interest of their employers in the copyright.

In failing to include the written assignments of copyright in evidence, the appellants claim that the CSA failed to discharge its onus. [ 58 ] The CSA, for its part, says that the Federal Court committed no reviewable error in concluding that the CSA established assignment of copyright in the 2015 version of the CSA Electrical Code in light of the uncontested affidavit evidence of Mr. Morton, who deposed that the CSA members and other contributors who authored the 2015 CSA Electrical Code assigned copyright interests to the CSA.

It also says that the Federal Court ought to have relied on the certificate of registration produced by the CSA in respect of the 2015 version of the CSA Electrical Code, particularly in light of the evidence that it followed the earlier registration of the 2012 version of the Code, which had been registered well before the application was commenced. [ 59 ] The appellants next argue, in the yet further alternative, that the Federal Court erred in its treatment of the defence of fair dealing and in concluding that Peter Knight was not granted a perpetual licence that operated to the benefit of the Knight Co., which they say allow it to distribute its identical copy of the 2015 version of the CSA Electrical Code.

[60] On the former point, the appellants contend that the Federal Court erroneously conflated separate portions of the test for fairdealing and that, contrary to what the Federal Court held, copying the entirety of a work may constitute fair dealing and did in factconstitute such dealing in the instant case. [61] As concerns the licence given to Peter Knight, the appellants say that the Federal Court erred in failing to recognize that the licencewas a perpetual one, which could not be revoked except in accordance with its express terms, none of which allowed for revocation.

Theappellants also say that the conduct of the CSA between 1969 and 2012, including its attempt to purchase Knight Co. in 2004,demonstrates that the CSA accepted their dissemination of the Code and provided its implied consent to the assignment of benefits of thelicence from Peter Knight to Knight Co. [62] In response, the CSA contends that all these points involve matters of fact or of mixed fact and law and that the appellants cannotpoint to any reviewable error having been made by the Federal Court in respect of any of them in light of several factors, including, mostparticularly, the appellants’" “blatant and competing commercial acts”" in copying and seeking to sell a complete copy of the 2015 CSAElectrical Code and the fact that the licence granted to Peter Knight in the 1960’s pertained to the ECS, a completely different and muchabridged work (CSA’s memorandum of fact and law, at paras. 47, 90, 92). [63] Finally, the appellants contest the Federal Court’s costs award, arguing that the CSA failed to lead evidence that could support thequantum awarded.

The CSA in response says that the decision of this Court in Nova Chemicals Co. v. Dow Chemical Co., 2017 FCA 25(Nova Chemicals) indicates that their evidence was sufficient and that the costs award therefore ought not be disturbed. IV. Analysis [64] I do not believe that any of the various arguments raised by the appellants warrants intervention by this Court. A.

Did the Federal Court err in finding that copyright subsists in the CSA ElectricalCode? [65] Turning first to the issue of whether the Federal Court erred in concluding that copyright subsists in the CSA Electrical Code,contrary to what the CSA claims, I believe that the principal argument raised by the appellants regarding the subsistence of copyrightwas sufficiently set out in their amended notice of appeal and memorandum of fact and law to allow this Court to consider it.

In theiramended notice of appeal, the appellants set out as their first ground of appeal that the Federal Court erred in finding that they hadinfringed the CSA’s copyright in the CSA Electrical Code because the Code is the law and citizens have the right to unimpeded access tothe law. They developed this argument at length in their memorandum of fact and law and considerable time was devoted to it before theFederal Court. The CSA is therefore in no way surprised by the appellants’ reliance on this argument and the related argumentsregarding Crown prerogative and

section 12 of the Copyright Act. It is therefore appropriate for this Court to consider these arguments.

(1) Is the CSA Code incapable of being the subject of copyright by reason of its incorporation into statuteand regulation? [66] Moving on to the merits of the argument regarding the non-subsistence of copyright in the CSA Electrical Code due to itsincorporation by reference into statutes or regulations, the appellants make three separate and inter-related points, all of which hinge onthe assertion that there cannot be any copyright in the law. [67] More specifically, the appellants first say that because the CSA Electrical Code is incorporated into a number of regulations, it isthe law.

In support of this assertion they rely on Ontario v. St. Lawrence Cement Inc. (2002), (ON CA), 60 O.R. (3d)712, 162 O.A.C. 363 (C.A.) at para. 18, which held that the Crown need not formally prove standards incorporated by reference intoregulations. The appellants also refer to R. v. Sims at para. 33, which concluded that the text of a standard incorporated by reference intoregulations need not itself be published before the regulations can be enforced.

They also rely on the Reference re Manitoba LanguageRights, (SCC), [1992] 1 S.C.R. 212 at p. 230, 133 N.R. 88 (the Manitoba Language Rights Reference), in which theSupreme Court of Canada concluded that materials incorporated by reference into a legislative instrument are an integral part of theinstrument.

In the case of standards developed by a non-governmental standard setting body, however, the Supreme Court explained that,in most instances, such standards need not be translated in a jurisdiction like Manitoba where the law must be bilingual because there is abona fide reason for not doing so, given the technical and voluminous nature of such standards (pp. 230-231). [68] The appellants secondly assert that no copyright subsists in the law and in support of this proposition rely on the judgment of theSupreme Court of the United States in Banks v.

Manchester, 128 U.S. 244 (1888) (which held that no copyright subsists in the opinionsof judges), the judgment of the United States Court of Appeals for the Fifth Circuit, sitting en banc, in Veeck v. Southern Building Code Congress International Inc., 293 F.3d 791 (5th Cir. 2002), (Veeck) (which held that no copyright subsists in a building code that wasdeveloped by a third party standards organization and incorporated by reference into law in several U.S. states) and the judgment of the United States Court of Appeals for the First Circuit in Building Officials & Code Adm. v.

Code Technology, Inc., 628 F.2d 730 (1st Cir.1980) (to similar effect). After these appeals were heard, with the Court’s permission, the appellants made additional submissionsconcerning the judgment of the United States Court of Appeals for the Eleventh Circuit in Code Revision Commission v. PublicResource.

Org Inc., No. 17-11589, slip. op. (11th Cir., October 19, 2018) (which held that no copyright subsists in annotations onGeorgia law prepared by an office supporting the Georgia General Assembly). [69] Finally, the appellants invoke public policy in support of their position, asserting that the rule of law requires that there be nocopyright in the CSA Electrical Code because citizens have the right to unimpeded access to the law. [70] I agree with the CSA that the American precedents regarding the lack of copyright in the law are of no relevance in Canada, giventhe difference in copyright legislation in the two countries and the important historical and constitutional differences that exist between

Canada and the United States. As the Supreme Court of Canada explained in Society of Composers, Authors and Musical Publishers ofCanada v. Bell Canada, 2012 SCC 36, [2012] 2 S.C.R. 326 (SOCAN), that Court has often" “cautioned against the automatic portabilityof American copyright concepts into the Canadian arena, given the ‘fundamental differences’ in the respective legislative schemes”"(para. 25). [71] Under the American Copyright Act, there can be no copyright in federal statutes or regulations as the United States Court ofAppeals for the Fifth Circuit noted in Veeck at p. 496.

More specially, by virtue of the Copyright Act, there is no" “copyright protection[…] for any work of the United States Government”", which is defined as" “a work prepared by an officer or employee of the UnitedStates Government as part of that person’s official duties”": 17 U.S. Code § § 101, 105. [72] There is no similar prohibition in Canada. Under

section 5 of our Copyright Act, copyright subsists" “in every original literary,dramatic, musical and artistic work”", subject to certain residency or citizenship requirements that are irrelevant to these appeals. The Actfurther provides in

section 2 that the phrase" “every original literary, dramatic, musical and artistic work”" includes: […] every original production in the literary, scientific or artistic domain, whatever may be the mode or form of itsexpression, such as compilations, books, pamphlets and other writings, lectures, dramatic or dramatico-musical works,musical works, translations, illustrations, sketches and plastic works relative to geography, topography, architecture orscience. [73] Thus, so long as it is original, any writing may be the subject of copyright in Canada. This would include laws and regulations. [74] That law and regulations may be the subject of copyright is indeed recognized by

section 12 of the Copyright Act, which, as noted,provides: "Without prejudice to any rights or privileges of theCrown, where any work is, or has been, prepared orpublished by or under the direction or control of HerMajesty or any government department, the copyright inthe work shall, subject to any agreement with theauthor, belong to Her Majesty and in that case shallcontinue for the remainder of the calendar year of thefirst publication of the work and for a period of fiftyyears following the end of that calendar year.

" "Sous réserve de tous les droits ou privilèges de laCouronne, le droit d’auteur sur les œuvres préparées oupubliées par l’entremise, sous la direction ou lasurveillance de Sa Majesté ou d’un ministère dugouvernement, appartient, sauf stipulation conclue avecl’auteur, à Sa Majesté et, dans ce cas, il subsiste jusqu’àla fin de la cinquantième année suivant celle de lapremière publication de l’œuvre. " [75] The phrase" “rights or privileges of the Crown”" in

section 12 of the Copyright Act preserves" “the Crown’s rights and privileges ofthe same general nature as copyright”", as this Court concluded in Manitoba v. Canadian Copyright Licensing Agency (Manitoba v.Access Copyright), 2013 FCA 91, [2014] 4 F.C.R. 3 at para. 34; see also Fox on Canadian Law of Copyright,

Section 18:3(a). Bypreserving the Crown’s rights and privileges outside the Copyright Act and, indeed, outside any other statute, this provision functions asan exception to the general principle in

section 89 of the Copyright Act that: No person is entitled to copyright otherwisethan under and in accordance with this Actor any other Act of Parliament […]. Nul ne peut revendiquer un droit d’auteurautrement qu’en application de la présenteloi ou de toute autre loi fédérale […]. [76] As is more fully discussed below, these rights or privileges include the right to publish statutes, orders-in-council andproclamations. [77] The remainder of

section 12 of the Copyright Act provides an additional basis for Crown ownership of copyright in statutes,regulations and the like, which are all published by or under the direction or control of Her Majesty or a government department. Forpurposes of these appeals it is not necessary to consider whether such materials are also in all circumstances prepared by or under thedirection or control of Her Majesty or a government department. [78] Although the Copyright Act does not define" “Her Majesty”", subsection 35(1) of the federal

Interpretation Act defines the"“Crown”" as being synonymous with" “Her Majesty”", the latter of which, as the Supreme Court explained in Alberta GovernmentTelephones v. (Canada) Canadian Radio-television and Telecommunications Commission, (SCC), [1989] 2 S.C.R. 225at p. 274, 98 N.R. 161," “embraces the Crown in right of a province as well as the Crown in right of Canada”" in the context of a similaruse of the term in a federal statute; see also Syndicat professionnel des ingénieurs d’Hydro-Québec v. Hydro-Québec, (FCA), [1995] 3 F.C. 3, 184 N.R. 291 (C.A.); Peter W. Hogg, Patrick J. Monahan and Wade K.

Wright, Liability of the Crown, 4th Edition (Toronto: Carswell, 2011) at pp. 444-455. Given this

interpretation of the term Her Majesty, there would seem no reason tolimit the term" “government department”" in

section 12 of the Copyright Act to federal government departments. [79] Subparagraph 2.2(1)(a)(

i) of the Copyright Act provides that" “[f]or the purposes of th[e] [Copyright Act], publication means (

a) inrelation to works, (

i) making copies of a work available to the public, […]”" [emphasis in original]. Subsection 33(3) of theInterpretation Act provides that" “[w]here a word is defined, other parts of speech and grammatical forms of the same word havecorresponding meaning”". Since the word" “publish”" is a verbal form of" “publication”", it correspondingly means to make a copy of awork available to the public: Keatley Surveying Ltd. v. Teranet Inc., 2017 ONCA 748 at para. 31, leave to appeal to the Supreme Courtof Canada granted, 37863 (June 21, 2018) (Keatley v.

Teranet). [80] As described above, statutes and regulations are made available to the public by or under the direction or control of federal,provincial and territorial government departments. Statutes and regulations therefore fall within the ambit of

section 12 of the CopyrightAct. [81] It therefore follows that the American precedents relied on by the appellants are inapplicable as the law in Canada may be and

indeed is the subject of copyright. Thus, if the CSA Electrical Code constitutes the law (a proposition that I do not accept for the reasonsdetailed below), it nonetheless could still be subject to copyright in this country. [82] The public policy arguments advanced by the appellants do not mandate a different conclusion for several reasons. [83] First, the appellants are in no position to invoke these arguments as they seek to protect their commercial interest in selling a copy-cat version of the 2015 CSA Electrical Code.

Thus, the public policy concern they invoke does not arise in this case, which involves thecompeting interests of two parties that seek to generate income from the sale of the 2015 version of the CSA Electrical Code. [84] Second, to the extent there is a concern about ordinary citizens acquiring access to the portions of the CSA Electrical Code that theymight need to know to perform the types of electrical maintenance and installations that they are legally permitted to perform, theinformation they require is not the entire CSA Electrical Code that is at issue in these appeals but, rather, only the sort of informationcontained in the abbreviated ECS, which is the subject of the pending action before the Federal Court. [85] Provincial and territorial statutes generally only allow a limited range of work to be done by a homeowner without a permit and awider range of work to be done by homeowners who do not hold a licence, but obtain a permit (see, for example, Electrical SafetyRegulation, B.C.

Reg. 100/2004, s. 2, para. 4(1)(d), ss. 17, 18; Electrical Inspection Act, 1993, S.S. 1993, c. E-6.3, s. 2(w); ElectricalInspection Regulations, R.R.S., c. E-63, Reg. 1, s. 19(1); Manitoba Electrical Code, Man. Reg. 76/2018, Sched., ss. 3(2), (3); Licensingof Electrical Contractors and Master Electricians, O. Reg. 570/05, s. 2; General Regulation, N.B. Reg. 84-165, ss. 2, 24; ElectricalInstallation and Inspection Act, R.S.N.S. 1989, c. 141, s. 3).

Thus, it would appear that ordinary citizens have no need to access theentirety of the CSA Electrical Code as opposed to merely those portions of it that concern residential installations, which is at issue in thepending action before the Federal Court, but not in these appeals. [86] Third, anyone faced with prosecution for violation of a law based on non-compliance with a regulation or statute that incorporatesthe CSA Electrical Code might well have a defence if the Code were truly inaccessible due to the cost associated with purchasing it. [87] At the federal level, a statutory defence is available to those who are charged with infringing provisions incorporated by referenceinto legislation if those provisions are inaccessible.

Section 18.6 of the Statutory Instruments Act protects against a person’s beingpenalized for contravening a provision that incorporates an inaccessible document by reference: "A person is not liable to be found guilty of an offenceor subjected to an administrative sanction for anycontravention in respect of which a document, index,rate or number — that is incorporated by reference in aregulation — is relevant unless, at the time of thealleged contravention, it was accessible as required bysection 18.3 or it was otherwise accessible to thatperson.

" "Aucune déclaration de culpabilité ni aucune sanctionadministrative ne peut découler d’une contraventionfaisant intervenir un document, indice, taux ou nombre— incorporé par renvoi dans un règlement — serapportant au fait reproché, sauf si, au moment de cefait, le document, l’indice, le taux ou le nombre étaitaccessible en application de l’article 18.3 ou étaitautrement accessible à la personne en cause.

" [88] Likewise, in Quebec, subsection 16(2) of the Regulations Act establishes a similar statutory defence: "No person may be convicted of an offence under a textthat has not been published in the Gazette officielle duQuébec and that is referred to by a regulation unless itis proved that the text has been published otherwise andthat the persons to whom the text may be applicablewere in a position to acquaint themselves with it beforethe offence was committed.

" "[…] une personne ne peut être condamnée pour uneinfraction commise à l’encontre d’un texte non publié àla Gazette officielle du Québec et auquel renvoie unrèglement, à moins qu’il ne soit prouvé que ce texte aété autrement publié et que les personnes susceptiblesd’être visées par celui-ci pouvaient en prendreconnaissance avant la commission de l’infraction. " [89] Although there is seemingly no equivalent statutory defence in the other provinces or in the territories, there may well be a defenceavailable at common law. In his concurrence in R. v.

Jorgensen, (SCC), [1995] 4 S.C.R. 55, 189 N.R. 1 (Jorgensen),Lamer C.J. recognized that although ignorance of the law is not a valid defence," “[a]n accused is excused when the law she wascharged under was impossible to gain knowledge of because it has not been published”" (para. 6). In Corporation de l’ÉcolePolytechnique v.

Canada, 2004 FCA 127, 325 N.R. 64, this Court adopted Lamer C.J.’s reasoning in Jorgensen on this point andexplained that showing an" “invincible mistake of law”" is a defence available when" “[…] it is impossible to avoid [making a mistake]because it is impossible for the person charged [with an offence] to know the law, either because it has not been promulgated or becauseit was not published in a satisfactory way so that its existence and contents could be known”" (para. 39); see also Makhija v. Canada(Attorney General), 2010 FCA 342, 414 N.R. 158 at para. 6 to similar effect.

Thus, if an accused were charged with a breach of a statuteor regulation that incorporated the CSA Electrical Code by reference and were able to establish that it was impossible to gain knowledgeof it, there would likely be a defence available to the accused. [90] Finally, to the extent that it is appropriate for this Court to consider public policy issues in these appeals, it seems to me that onthese facts public policy militates in favour of recognizing the CSA’s copyright in the CSA Electrical Code.

The collaborative processfor developing the Code, which is then extended through incorporation by reference into statutes and regulations at the federal,provincial and territorial levels, is an example of cooperative federalism at its best: see generally Reference re Securities Act, 2011 SCC66, [2011] 3 S.C.R. 837 at paras. 132-133; Reference re Pan-Canadian Securities Regulation, 2018 SCC 48 at paras. 16-19.

Animportant component of this process is the CSA’s ability to sell the Code and to use the funds so generated to help finance themaintenance of this and other national standards: Federal Court’s reasons at para. 42.

Impairing the CSA’s ability to continue to generaterevenue in this way might well negatively impact the continued existence of common national standards in areas where consistency isimportant, as is the case with electrical maintenance and installation. [91] In the Manitoba Language Rights Reference, as noted, the Supreme Court recognized the need for a flexible national standardssystem by concluding that such standards need not be translated when they are incorporated into statutes or regulations that must, as aconstitutional matter, be bilingual (pp. 229-231).

Likewise, there is a strong public policy argument to be made in the instant case in

favour of the respondent’s position that similarly favours the maintenance of a national standards system. [ 92 ] Thus, the principal argument advanced by the appellants for why copyright should be found to not subsist in the CSA Electrical Code fails.

(2) Is the CSA Code incapable of being the subject of copyright by reason that it lacks originality and was developed by a committee? [ 93 ] Turning now to the subsidiary arguments advanced by the appellants regarding lack of originality and development by committee, the CSA is correct in noting that neither of these arguments was raised by the appellants in their amended notice of appeal, no matter how generously it is read.

While this is a sufficient basis for disposing of these arguments, I also believe that neither point has any merit. [ 94 ] Insofar as concerns the alleged lack of originality, the appellants can point to no error committed by the Federal Court in its assessment of this issue. Contrary to what the appellants say, the Federal Court did not misinterpret the test for originality laid out by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada , 2004 SCC 13 , [2004] 1 S.C.R. 339 ( CCH ).

There, the Supreme Court held at paragraph 16 that, for a work to be original within the meaning of the Copyright Act : […] it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work.

By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise.

For example, any skill and judgment that might be involved in simply changing the font of a work to produce “another” work would be too trivial to merit copyright protection as an “original” work. [ 95 ] In so holding, the Supreme Court rejected the notion that mere expenditure of effort, or the so called " “sweat of the brow” " test, is sufficient to establish the originality required for copyright. [ 96 ] The appellants submit that the Federal Court erred because it premised its originality finding solely on the fact that time and effort were expended to produce the 2015 version of the CSA Electrical Code, pointing to paragraph 33 of the Federal Court’s reasons, where the Federal Court made its originality finding and stated: The evidence of [the CSA’s affiant] is that thousands of hours went into the production of the latest edition of the CSA Code.

This constitutes a substantial undertaking of skill and judgment. [ 97 ] I agree that the foregoing passage is not as carefully worded as it might have been but disagree that the Federal Court erred in concluding that the 2015 version of the CSA Electrical Code possessed the requisite originality to found copyright. While the mere fact that time and effort is expended to produce a work is insufficient to constitute originality under the test elaborated in CCH , the Federal Court had evidence before it to establish the requisite originality.

More specifically, the parties filed a copy of the 2015 CSA Electrical Code, in its entirety. A review of it, coupled with the evidence of the time and effort expended to produce the amendments that were included in the 2015 version of the Code, establish that much more than minimal skill and judgment were expended to produce this version of the CSA Electrical Code.

Given the content of the Code, it is incontrovertible that skill and judgment were required, among other things, to determine which portions of the Code needed revision, to adapt them to then current industry practices and needs and to determine how the sections should be appropriately arranged. Thus, the Federal Court did not err in concluding that the 2015 version of the CSA Code possessed originality. [ 98 ] Nor does the fact that the amendments to the 2015 CSA Code were developed by committee prevent the 2015 version of the Code from being copyrighted as the Copyright Act extends copyright to compilations.

As noted,

section 5 of the Copyright Act extends copyright to original literary works. These are defined in

section 2 of that Act as " “includ[ing] tables, computer programs, and compilations of literary works” " .

Section 2 of the Copyright Act defines compilations of literary works, in relevant part, as including " “a work resulting from the selection or arrangement of data” " . Further, subsection 2.1(2) of the Copyright Act provides: " The mere fact that a work is included in a compilation does not increase, decrease or otherwise affect the protection conferred by this Act in respect of the copyright in the work or the moral rights in respect of the work. " " L’incorporation d’une œuvre dans une compilation ne modifie pas la protection conférée par la présente loi à l’œuvre au

titre du droit d’auteur ou des droits moraux. " [ 99 ] In light of the forgoing, the appellants’ assertions regarding the collaborative nature of the 2015 version of the CSA Electrical Code are without merit. Accordingly, the Federal Court did not err in concluding that copyright subsists in the 2015 version of the CSA Electrical Code. B. Did the Federal Court err in finding that the Crown does not own the copyright in the CSA Electrical Code? [ 100 ] I turn next to the issue of whether the Federal Court erred in concluding that the Crown does not possess copyright in the CSA Electrical Code. As already indicated, under

section 12 of the Copyright Act , Crown copyright may arise either by virtue of the rights or privileges of the Crown outside the Copyright Act , which

section 12 preserves, or by virtue of a work’s having been " “prepared or published by or under the direction or control of Her Majesty or any government department” " .

(1) The CSA Electrical Code is Not Prepared or Published by or under the Direction or Control of Her Majesty or any Government Department [ 101 ] The second of these bases for Crown ownership of the copyright at issue may be dispensed with relatively quickly because the Federal Court did not err in finding that there was an absence of any such control or direction over the preparation and publication of the CSA Electrical Code.

As the Federal Court noted, there was no evidence of any such control or direction as the CSA is independent of government, there was no evidence of any de facto control exercised by any level of government over the CSA or over the process of developing CSA standards and no evidence that any province or territory other than Ontario publishes or exerts control over the publication of the CSA Electrical Code (and Ontario acknowledges the CSA’s copyright). Moreover, no government claims ownership of the copyright in the standards developed by the CSA.

Similarly, there was no evidence before the Federal Court to indicate any degree of control being exercised by the Crown or any government department over the Standards Council. [ 102 ] Nor can such control or direction be extrapolated from the statutory scheme. [ 103 ] The CSA is a private corporation and the Standards Council is neither an emanation of the Crown nor a government department. Sections 16 and 17 of the Standards Council Act provide that, except for purposes of Public Service Superannuation Act , R.S.C. 1985, c. P-36, and the Government Employees Compensation Act , R.S.C. 1985, c.

G-5, " “[t]he Council is not an agent of Her Majesty and […] members and the executive director and other officers and employees of the Council are not part of the federal public administration.” " [ 104 ] As a non-agent Crown corporation, the Standards Council is not equivalent to the Crown and cannot be said to be under the direction or control of the Crown merely because it is a Crown corporation.

As Hogg, Monahan & Wright note, " “[…] public corporations, even if they are performing ‘governmental’ functions, are not agents of the Crown, unless they are controlled by a minister or expressly declared by statute to be an agent of the Crown.” " (p. 13). [ 105 ] The recent decision of the Ontario Court of Appeal in Keatley v. Teranet provides useful guidance on this issue. There, the Court considered whether the Crown in right of Ontario possesses copyright by virtue of

section 12 of the Copyright Act in plans of survey registered under the provincial Electronic Land Registration Services Act , 2010, S.O. 2010, c. 1, Sched. 6 (the ELRSA ). That Act provides details as to how plans, prepared by surveyors, are to be prepared for registration and requires that the private sector operator of the electronic land registration system provide copies of registered plans of survey to anyone who requests them, upon payment of a fee.

The Ontario Court of Appeal held that the plans in issue could not be said to have been prepared under the direction or control of the Crown, even though they were in a form contemplated by and subsequently registered under the ELRSA (para. 30). However, the Court concluded that the statutory scheme supported the conclusion that the surveys were published under the control of the Crown.

The Ontario Court of Appeal described that scheme in the following terms at paragraph 43 of its reasons for judgment: […] The statutory scheme, considered in its entirety, goes far beyond simply authorizing the Crown to impose terms on the content and form of documents to be registered or deposited, or to copy plans of survey deposited or registered in the ELRS. The provisions oblige the Crown to maintain possession and custody of all registered plans of survey. The Crown must provide access to those plans upon request. The surveyor cannot place any marking on the plan claiming any kind of copyright.

The surveyor cannot make any change to the plan once it is registered or deposited, without the permission of the Examiner of Surveys. The Examiner, on the other hand, can make changes even without the permission of the surveyor. Finally, of course, the Crown is statutorily obliged to provide certified copies upon request. [ 106 ] The situation in the instant case, as concerns the preparation of the CSA Electrical Code, resembles that discussed in Keatley v. Teranet and similarly evinces a lack of direction or control by either the Crown or a government department.

As noted by the trial judge in Keatley Surveying v. Teranet , 2016 ONSC 1717 at para. 32 , the ELRSA required that the plans of survey " “conform to certain statutorily prescribed guidelines” " . Even with this, though, the plans were found to not have been prepared by or under the direction or control of Her Majesty or any government department for purposes of

section 12 of the Copyright Act . In the instant case, neither the Crown nor any government department sets any guidelines about the form the CSA Electrical Code is to take. Thus, there is even less basis than there was in Keatley v. Teranet to conclude that the CSA Electrical Code was prepared by or under the direction or control of Her Majesty or any government department. (See also to similar effect Copyright Agency Limited v.

State of New South Wales , [2007] F.C.A.F.C. 80, 240 A.L.R. 249, at paras. 121-126, rev’d on other grounds [2008] H.C.A. 35, 248 A.L.R. 590). [ 107 ] However, the situation in the instant case, as concerns publication, is entirely different from that discussed in Keatley v. Teranet . Here, unlike there, neither the Crown nor a government department possesses any of the various indicia of control that exist under the ELRSA and the mere fact of incorporation by reference does not require that the CSA Code be published.

Moreover, there was no evidence before the Federal Court to indicate that the CSA Code is published by any jurisdiction, other than Ontario. And Ontario specifically acknowledges the CSA’s copyright in its publication. Therefore none of the indicia of control that were present in Keatley v. Teranet can be said to exist in this case. [ 108 ] I thus conclude that the CSA Electrical Code cannot be said to be published by or under the direction or control of the Crown or a government department.

(2) Copyright in the CSA Electrical Code Does not belong to the Crown by virtue of its Rights or Privileges [ 109 ] The foregoing conclusion requires that I move to next consider the issue of Crown prerogative. [ 110 ] The Copyright Act binds the federal and provincial Crowns by necessary implication, but the opening words of

section 12 of the Copyright Act preserve the federal and provincial Crowns’ rights and privileges outside the Copyright Act that are of the same general nature as copyright: Manitoba v. Access Copyright at paras. 34, 47. [ 111 ] A typical defendant in an action for copyright infringement can raise as a defence that the plaintiff does not own the copyright or otherwise have an interest in it: see Copyright Act , ss. 34(1), 35(1) , 38(1) , 41.23(1) (all referring to the " “owner” " of copyright and, in the last subsection, to a " “person […] deriving any right, title or interest by assignment or grant in writing from the owner” " ).

[ 112 ] However, the Crown’s unique rights and privileges in the nature of copyright do not lend themselves to being raised as a defence by someone other than the Crown itself because only the Crown may assert its prerogative. In Canada (Prime Minister) v. Khadr , 2010 SCC 3 , [2010] 1 S.C.R. 44 ( Khadr ) the Supreme Court noted that " “[…] it is for the executive and not the courts to decide whether and how to exercise […] prerogative powers” " (at para 36).

Neither the federal Crown nor any provincial Crown has asserted a right or privilege over the CSA Electrical Code, and the appellants cannot do so in the Crown’s place. Thus, the claim based on Crown prerogative must fail. [ 113 ] This determination is sufficient to dispose of the Crown prerogative issue.

However, if it were necessary to examine the issue of Crown prerogative further, I would conclude that, although the Crown has a common law right akin to copyright that allows it to print and publish certain works of a legislative nature, that right does not extend to works incorporated by reference, including the CSA Electrical Code. (

a) General Principles [ 114 ] The Crown has unique rights and privileges recognized at common law. These include Crown prerogatives, which are a " “limited source of non-statutory administrative power” " : Khadr at para. 34 , as well as Crown immunities, which modify the application of the general law to the Crown: see, for example, Canada (Attorney General) v. Thouin , 2017 SCC 46 , [2017] 2 S.C.R. 184 at paras. 16 and 23 ( Thouin ). [ 115 ] The Crown’s rights and privileges at common law were received from English law into the law of each colony in what became Canada: McAteer v.

Canada (Attorney General) , 2014 ONCA 578 at para. 51 , 121 O.R. (3d) 1, leave to appeal to the Supreme Court of Canada refused 36120 (February 26, 2015) ( McAteer ); J.E. Cote, " “The Reception of English Law” " (1977) 15(1) Alberta L.R. 29 at p. 61. [ 116 ] The Constitution generally preserves the Crown’s rights and privileges at common law.

Section 129 of the Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.), reprinted in R.S.C. 1985, App. II, provides that: [e]xcept as otherwise provided by [the Constitution Act, 1867 ], all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union […] shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made […] subject nevertheless […] to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that

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