EB-2014-0116 ONTARIO ENERGY BOARD IN THE MATTER OF the Ontario Energy Board Act, 1998, Schedule B to the Energy Competition Act, 1998, S.O. 1998, c. 15; AND IN THE MATTER OF an Application by toronto Hydro-Electric System Limited for an Order or Orders approving or fixing just and reasonable rates and other service charges for the distribution of electricity as of May 1, 2015; AND IN THE MATTER OF Rule 27 of the Board’s Rules of Practice and Procedure. AMPCO BOOK OF AUTHORITIES (COPYRIGHT AND CONSTITUTIONAL ISSUES) - MOTION AND CROSS-MOTION OF THE CANADIAN ELECTRICITY ASSOCIATION DAVIS LLP 6000 - 1 First Canadian Place 100 King Street West Toronto ON M5X 1E2 David Crocker Andy Radhakant Telephone 416.365.3500 Facsimile 416.365.7886 Counsel to AMPCO - 2 - TO: Ontario Energy Board 2701 - 2300 Yonge Street Toronto ON M4P 1E4 Tel: 416.481.1967 Fax: 416.440.7656 AND TO: Torys LLP 79 Wellington St. W. 30th Floor Box 270, TD South Tower Toronto ON M5K 1N2 Charles Keizer and Crawford Smith Tel: 416.865.7512 Fax: 416.865.7380 Counsel to Toronto Hydro-Electric System Limited AND TO: Goodmans LLP Bay Adelaide Centre 3400 - 333 Bay Street Toronto ON M5H 2S7 Peter Ruby and Michel Shneer Tel: 416.979.2211 Fax: 416.979.1234 Counsel to Canadian Electricity Association AND TO: Jay Shepherd Professional Corporation 2300 - 2399 Yonge Street Toronto ON M4P 1E4 Mark Rubenstein Tel: 416.483.3300 Fax: 416.483.3305 Counsel to the School Energy Coalition AND TO: Attorney General of Ontario Constitutional law Branch 4th Floor - 720 Bay Street Toronto ON M5G 2K1 Fax: 416.326.4015 AND TO: Attorney General of Canada Department of Justice P.O. Box 36 3400 - 130 King Street West Toronto ON M5X 1K6 Fax: 416.952.0298 - 3 - INDEX 1. Intellectual Property Law: Copyright, Patents, Trade-marks, Second Edition, Vaver, 2011 2. Copyright Act, R.S.C., 1985, c. C-42 3. Home Office v. Harman, [1981] Q.B. 534 (C.A.) 4. Unclaimed Property Recovery Service, Inc. v. Kaplan, Docket No. 12-4030 (United States Court of Appeal for the Second Circuit) 5. Manitoba v. Canadian Copyright Licensing Agency (Access Copyright), 2013 FCA 91 6. Apotex Inc. v. Sanofi-Synthelabo Canada Inc., 2008 SCC 61 7. CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 8. Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 Page 1 ICLR: King's/Queen's Bench Division/1981/HOME OFFICE v. HARMAN - [1981] Q.B. 534 [1981] Q.B. 534 [COURT OF APPEAL] HOME OFFICE v. HARMAN 1980 Nov. 19, 20, 21; 27 Park J. 1981 Jan. 28, 29, 30; Feb. 6 Lord Denning M.R., Templeman and Dunn L.JJ. Contempt of Court - Solicitor - Disclosure of documents - Solicitor's implied undertaking not to use documents disclosed on discovery except for purposes of litigation - Confidential documents disclosed and read in court at trial - Solicitor allowing journalist access to documents after trial for purpose of writing feature article - Whether breach of implied undertaking - Whether serious contempt The respondent, a solicitor and legal officer of the National Council for Civil Liberties ("N.C.C.L."), was acting as solicitor for the plaintiff in an action against the Home Office arising out of his treatment in prison in an experimental "control unit." During the course of the action the Home Office disclosed a large number of documents. The solicitor for the Home Office, in a letter dated October 17, 1979, stated the Home Office did not wish the documents to be used for the general purposes of the N.C.C.L. outside the respondent's function as solicitor for the plaintiff in the action. The respondent replied to that letter on the same day, saying that she was well aware of the rule that documents obtained on discovery should not be used for any purposes other than for the case in hand. The Home Office was later ordered to disclose six confidential documents which they objected to produce on the ground of public interest immunity. The respondent selected from the documents disclosed those required for use at the trial of the plaintiff's action, and in due course they were read out by counsel at the hearing. A few days after the hearing the respondent allowed a journalist whom she knew to be a feature writer, and who had been present during part of the hearing, to have access to the documents that had been read out, including the confidential documents, for the purpose of writing a newspaper article. The article was highly critical of Home Office ministers and civil servants. The Home Office applied under R.S.C., Ord. 52, r. 9 for an order against the respondent for contempt of court, alleging that she was in breach of the undertaking, implied by law and affirmed in her letter of October 17, not to use documents obtained on discovery for purposes other than those of the action in which they were disclosed. Park J. held that the respondent was in contempt of court, but accepted that she had acted in good faith and imposed no penalty. On appeal by the respondent:- Held, dismissing the appeal, that although the right to privacy and respect for confidential documents could be Page 2 overridden in the interests of justice, and a party to litigation might be ordered to disclose all the documents in his possession relevant to the issues in the action, the court implied an undertaking by the party to whom disclosure had been made that he would make use of the documents only for the [1981] Q.B. 534 Page 535 purposes of the action; that such an undertaking was not destroyed by reading out the documents in open court, nor did the public interest require that it should be so destroyed; and that there could be no further use of the documents or dissemination of their contents without the consent of the owner (post, pp. 557D-G, 558H - 559A, E-F, 561D-E, G-H, 562C, E); that, in the present case the inference could be drawn that the respondent had induced the belief that she had obtained disclosure of the documents on behalf of the N.C.C.L., and since she had used them or authorised their use for the purpose of reproduction in the press, she had not confined her use of them to use in the action brought by the plaintiff against the Home Office, and accordingly, she had committed a serious contempt of court (post, pp. 556D-E, G-H, 557H - 558B, E-F, 562D-E, 564B-C). Scott v. Scott [1913] A.C. 417, H.L.(E.) and Riddick v. Thames Board Mills Ltd. [1977] Q.B. 881, C.A. considered. Per Dunn L.J. If a reporter wishes to check the date of a document or its exact wording, he or she can always ask counsel or solicitor for the party who has disclosed the document. There is no reason why such a request should be refused (post, p. 563D-E). Decision of Park J. post, p. 536H et seq. affirmed. The following cases are referred to in the judgments in the Court of Appeal: Baker v. Bethnal Green Borough Council [1945] 1 All E.R. 135, C.A. Burmah Oil Co. Ltd. v. Governor and Company of the Bank of England [1979] 1 W.L.R. 473; [1979] 2 All E.R. 461, C.A.; [1980] A.C. 1090; [1979] 3 W.L.R. 722; [1979] 3 All E.R. 700, H.L.(E.). Conway v. Rimmer [1968] A.C. 910; [1968] 2 W.L.R. 998; [1968] 1 All E.R. 874, H.L.(E.). Gammell v. Wilson [1981] 2 W.L.R. 248; [1981] 1 All E.R. 578, H.L.(E.). Pickett v. British Rail Engineering Ltd. [1980] A.C. 136; [1978] 3 W.L.R. 955; [1979] 1 All E.R. 744, H.L.(E.). Rex v. Wilkes (1770) 4 Burr. 2527. Riddick v. Thames Board Mills Ltd. [1977] Q.B. 881; [1977] 3 W.L.R. 63; [1977] 3 All E.R. 677, C.A. Schering Chemicals Ltd. v. Falkman Ltd. [1981] 2 W.L.R. 848; [1981] 2 All E.R. 321, C.A. Scott v. Scott [1913] A.C. 417, H.L.(E.). Page 3 Williams v. Home Office (No. 2) [1981] 1 All E.R. 1211. The following additional cases were cited in argument in the Court of Appeal: ALAE v. BEA [1973] I.C.R. 601, N.I.R.C. Alterskye v. Scott [1948] 1 All E.R. 469. Church of Scientology of California v. Department of Health and Social Security [1979] 1 W.L.R. 723; [1979] 3 All E.R. 97, C.A. Distillers Co. (Biochemicals) Ltd. v. Times Newspapers Ltd. [1975] Q.B. 613; [1974] 3 W.L.R. 728; [1975] 1 All E.R. 41. National Sulphuric Acid Association's Agreement, In re (No. 2) (1966) L.R. 6 R.P. 210, R.P.Ct.(E. & W.). The following cases are referred to in the judgment of Park J.: Alterskye v. Scott [1948] 1 All E.R. 469. [1981] Q.B. 534 Page 536 Attorney-General v. New Statesman and Nation Publishing Co. Ltd. [1981] Q.B. 1; [1980] 2 W.L.R. 246; [1980] 1 All E.R. 644, D.C. Halcon International Inc. v. Shell Transport and Trading Co. [1979] R.P.C. 97, Whitford J. and C.A. Riddick v. Thames Board Mills Ltd. [1977] Q.B. 881; [1977] 3 W.L.R.