FEDERAL COURT OF APPEAL TEKSAVVY SOLUTIONS INC BELL MEDIA INC, GROUPE TVA INC, ROGERS MEDIA INC, JOHN DOE 1

The ‘colour’ that Copyright Act provisions bring to the court’s general remedial powers emerges from the Act’s purpose: to provide a “balance between promoting the public interest in…dissemination of works…and obtaining a just reward for the creator” or, 8 specifically, a balance between the rights of users and copyright holders. [...] For example, the Supreme Court has held that section 12 of the Act, which generally preserves common law Crown prerogative, must accord with the balance at the 13 heart of the Act. [...] Responding to the Supreme Court’s invitation, Parliament clarified the liability and remedy exposure of ISPs and encoded the common law concept of ‘authorization’ as applicable to different 26 intermediaries. [...] The requirement to act “solely as a common carrier” and not “control the contents nor influence the meaning or purpose” of 65 telecommunications, first in the Bell Canada Special Act and then in section 36 of the Telecommunications Act, exists in the context of the common carrier’s obligation to avoid discrimination. [...] Evidence “to the effect that the cost of implementation and the exclusion of some third party ISPs from the scope of the order will potentially negatively impact the competitive position of smaller ISPs including Teksavvy” (¶98) must be weighed against telecommunications policy objectives.