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[27] Teksavvy submits that this motion must be considered in the broader context of the Canadian debate on site-blocking that is occurring before Parliament and the CRTC. When considered in this context, it argues the Court should decline to exercise any jurisdiction or discretion it may have to grant a site-blocking order.
[28] First, TekSavvy argues that the remedies available to a copyright holder set out in the Copyright Act are exhaustive and do not include site-blocking orders. TekSavvy further notes that in introducing reforms to the Copyright Act in 2012 Parliament considered but chose not to provide for a site-blocking regime. It submits that the Federal Court should not now provide a remedy to the Plaintiffs that Parliament declined to make expressly available in legislation. The argument is not persuasive.
[29] Parliament’s choice not to adopt a site-blocking regime does not equate to Parliament prohibiting this Court from exercising its equitable jurisdiction to issue a site-blocking order. Furthermore, subsection 34(1) of the Copyright Act recognizes that, subject to that Act, a copyright owner is “entitled to all remedies by way of injunction […] that are or may be conferred by law for the infringement of a right”. This includes the right to seek relief against a non-party in circumstances where that non-party facilitates, albeit innocently, the harm being complained of (Equustek at para 31).
[30] This broadly stated entitlement to injunctive relief is not consistent with Teksavvy’s view that Parliament’s failure to legislate a site-blocking regime equates to an implicit intent to limit the availability of a similar remedy before the courts.
[31] Teksavvy further submits that the sole issue before the Court on this motion is a proposed site-blocking order against the Third Party Respondents, an issue that is discrete from the underlying action relating to the alleged copyright infringement. Teksavvy submits that site-blocking is a matter that falls within the CRTC’s mandate as set out in the Telecommunications Act and the CRTC has, in its decisions and policy documents, held that site-blocking is only warranted in exceptional circumstances. Teksavvy points to sections 7 and 36 of the Telecommunications Act to argue that the granting of the order would (1) usurp the CRTC’s role in ruling on the appropriateness of site-blocking, and (2) supplant the CRTC’s role in deciding which, if any “exceptional circumstances” warrant site-blocking in furtherance of Canadian telecommunications policy objectives as set out at section 7 of the Telecommunications Act.
[32] In the course of oral submissions Teksavvy requested and was granted leave to provide supplementary written submissions on section 36 of the Telecommunications Act. The Plaintiffs, in turn, have filed supplementary written submissions in reply.
[33] Section 36 provides the CRTC with the authority to authorize an ISP to block a website:
Content of messages
36 Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.
[34] In a 2018 decision the CRTC addressed the reach of section 36, in the context of considering an application from a group referred to as the FairPlay Coalition. The FairPlay Coalition requested that the CRTC create a regime that would allow the CRTC to require ISPs to block access to websites and services engaged in copyright piracy. The CRTC concluded it lacked the jurisdiction to implement the proposed regime and denied the FairPlay Coalition’s application. In doing so, in the Telecom Decision 2018-384 [FairPlay decision] at para 67, it considered the scope of the power granted to it by section 36:
67. Section 36 of the Telecommunications Act limits the ability of carriers to control the content of messages carried over their networks without prior Commission authorization. While this section gives the Commission the explicit power to authorize an ISP to block a website, the proposed regime would go further and require such blocking pursuant to a Commission order. Because section 36 confers authorizing power and not a mandatory power, the power to mandate blocking must be found elsewhere and must relate to the subject matter that is clearly within the Commission’s jurisdiction under the Telecommunications Act. [Emphasis added.]
[35] In the FairPlay decision the CRTC also concluded it possessed no jurisdiction over matters of copyright infringement. The CRTC held that Parliament had intended the Copyright Act to be an exhaustive regime and that clear language would be required to establish that rights and remedies related to copyright were available under the Telecommunications Act (FairPlay decision at paras 60, 61 and 65).
[36] I have considered the jurisprudence cited by Teksavvy in its supplementary written submissions (MTS Allstream v TELUS Communications Company, 2009 ABCA 372 (CanLII) at paras 20, 23, 28–29, and 32; Bazos v Bell Media Inc, 2018 ONSC 6146 (CanLII) at paras 66–72; Iris Technologies Inc, et al v Telus Communications Company, 2019 ONSC 2502 (CanLII) at paras 30 and 33; Shaw Cablesystems (SMB) Ltd. et al v. MTS Communications Inc. et al., 2006 MBCA 29 (CanLII) at paras 52 and 54–55; Association canadienne des télécommunications sans fil c. Procureure générale du Québec, 2018 QCCS 3159 (CanLII) at para 119). As the Plaintiffs note, the jurisprudence Teksavvy relies upon is limited to situations where the essential character of the dispute in issue falls within the scope of the CRTC’s statutorily prescribed jurisdiction.
[37] Teksavvy seeks to characterize the issue on this motion as one of site blocking only. I am not convinced the injunction remedy sought can be so simply divorced from the essential character of the underlying copyright infringement action.
[38] Teksavvy has not argued that the CRTC erred in concluding it lacked jurisdiction in the area of copyright infringement. For the purposes of addressing the issues before me and absent argument to the contrary I accept the CRTC conclusion that Parliament intended the Copyright Act to be an exhaustive regime. Absent clear statutory language to the contrary, where the essential character of the dispute is one of copyright, remedies are to be found in the Copyright Act.
[39] Teksavvy’s characterization of the relief sought as being discrete from the underlying copyright action is not persuasive and is at odds with the CRTC’s conclusions set out above. There is an absence of CRTC jurisdiction over the underlying copyright issues and an absence of authority to grant the type of relief being sought on this motion. On these facts one cannot conclude that the granting of the injunctive relief sought would in any manner usurp, supplant or erode the CRTC’s role under sections 7 or 36 of the Telecommunications Act.
[40] In the course of the oral submissions counsel for Teksavvy also raised the issue of whether the Third Party Respondents would be required to seek section 36 approval from the CRTC prior to implementing a site-blocking order. Teksavvy did not pursue this argument in its supplementary written submissions.
[41] Having concluded above that the Court may bind the Third Party Respondents in the exercise of its equitable jurisdiction, I agree with and adopt the Plaintiffs’ submissions in this regard. Section 36 of the Telecommunications Act cannot be interpreted or applied in a manner that would allow the CRTC to interfere with an order of the Court aimed at impeding further infringement of rights under the Copyright Act (Reference re Broadcasting Act SC 1991 (Canada), 2012 SCC 68 (CanLII) at paras 39 and 45).
[42] In summary, the Court has jurisdiction to grant the relief sought. I am not convinced that any of the provisions of the Telecommunications Act, nor the fact that there is ongoing debate about the role of site blocking in Canada’s telecommunications regulatory regime, support the view that the Court should decline to exercise its discretion in this case.
