A tariff for ringtones was first approved by the Copyright Board in 2006 for the years 2003-2005.That decision was the subject of judicial review in the FCA, where the users (many of whom are thesame companies as the Applicants in this matter) took the position, among others, that the Internetdelivery of a ringtone did not constitute a “communication” within the meaning of section 3(1)(f) of the
. The FCA dismissed the application (“
”) and, subsequently, the SupremeCourt of Canada dismissed the users’ application for leave to appeal.In June 2010, SOCAN and the Tariff 24 Objectors reached an agreement on the royalties to be paidfor ringtones (and ringbacks) for the period 2006 to 2013, and asked the Board to approve the tariff in accordance with that agreement. The Board certified the tariff, as requested by the parties, onJune 29, 2012.Shortly thereafter, the
Decision was issued on July 12, 2012. The majority in
decision and stated (incorrectly in our submission) that
had not examined thelegislative history behind the term “communicate” or the connection between communication andperformance.
While the majority decided that the download of videogames and full-length musicalworks were not “communications”, the majority did not expressly overturn
is subject to the doctrine of
The doctrine of
is a fundamental doctrine of the justice system.
The SCC has definedthe doctrine as “something that has clearly been decided” and “has passed into a matter adjudged”.
Therefore, a final judgment concludes the issues between parties.
The effect of the doctrine is that when any possibility to appeal a decision has lapsed, that decisionis final as between the parties, on that particular set of facts. Unless retroactive legislation isadopted, the parties have no recourse to substitute a decision even where future cases change theinterpretation of a statute, or even if the statute itself is amended, repealed or struck because it isunconstitutional.
is grounded on several principles and policy rationales. Public policy dictates that it isin the interest of the public that an end be put to litigation. There is a social necessity requiring thefinality and validity of judgments, on the basis that adjudicated issues are received as “the truth”.
is also based on the individual rightthat no one should be twice vexed by the samecause.
The fact that the FCA in
did not expressly refer to the legislative history of s.3(1)(f) in its written reasons does notmeanthat it did not consider it. Both the appellants CWTA, Bell and TELUS, and the respondent SOCAN provideddetailed argument in their written facta about the legislative history of the provision and made submissions in oralargument on the point.
R. v. Van Rassel
,  1 S.C.R. 225 at 238.
R. v. Riddle
(1979), 48 C.C.C. (2d) 365 (S.C.C.). at 369.
Donald J. Lange,
The Doctrine of Res Judicata in Canada
ed. (Markham: LexisNexis, 2010) at p. 4-5;
(1896), 25 S.C.R. 633 at 642-644.
Toronto (City) v. Canadian Union of Public Employees, Local
79,  S.C.J. No. 64 at para. 55;
Roberge v. Bolduc
, 1 S.C.R. 374 at 402; Minott
v. O’Shanter Development Co.
, (1999), 42 O.R. (3d) 321 (C.A.) at 329;
Children’s Aid Society of the Niagara Region v. D.P.
,  O.J. No. 4015 (S.C.J.). at para. 12.