This was a dispute over a tariff requiring Rogers to pay royalties to SOCAN in respect of ringtones and ringbacks (Tariff 24) as a communication of a musical work to the public. Tariff 24 had previously been the subject of litigation between the parties, with SOCAN being the successful party. Rogers argued that the Supreme Court’s 2011 decisions relating to downloads of musical works and downloads of video games containing musical worksoverturned the earlier litigation and would apply to ringtones as well.
The Court held that although the Federal Court of Appeal had already decided this issue in earlier litigation, the Board always has the power to vary its royalty decisions. In effect, the Court found that a decision of the Board is never really final.
Following the SCC jurisprudence, the Court held that the download of a ringtone was a reproduction, not a communication, of a musical work. This meant that Tariff 24 became unenforceable after the SCC 2011 decisions. Royalties paid before the change in the law were not required to be repaid and SOCAN was not found to have been unjustly enriched, because there had been a juristic reason for the payments.