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December 18, 2013

By Email phenein@casselsbrock.com tel: 416.860.5222 f a x: 6 4 7 . 2 5 9 . 7 9 7 4 file # 1-2812

Mr. Gilles McDougall, Secretary General Copyright Board of Canada 56 Sparks Street, Suite 800 Ottawa, ON K1A 0C9

Dear Mr. McDougall: Re: Access Copyright Post-Secondary Education Institutions Tariff (2011 - 2013) (the "Proposed Tariff")

We are counsel to the University of Toronto (the U of T). We write to you in response to the letter from Access Copyrights lawyer, Nancy Brooks, dated December 13, 2013, seeking leave to file evidence relating to the use by the U of T of published works and paper coursepacks and digitally on its Course Management System (CMS). Attached to Ms. Brooks December 13 letter are the two documents Access Copyright seeks leave to file, being a report by Circum Network Inc. entitled Analysis of the Volume and Nature of the Copying of Published Works at the University of Toronto, 2005 - 2012 and the Supplementary Witness Statement of Kerrie Duncan describing the repertoire analysis carried by Access Copyright of the sample of documents posted by the U of T to its CMS (collectively, the Proposed Evidence). The U of T objects to Access Copyrights request to file the Proposed Evidence. The U of T requests that the Board permit it to make submissions by no later than January 13, 2014 in support of its request that the Board decline to admit the Proposed Evidence in the tariff proceeding. As the U of T intends to explain in greater detail, it is of the view that Access Copyrights attempt to file the Proposed Evidence is in direct contravention of its licence agreement with the U of T. As such, the U of T requests that the Board reconsider its preliminary views on Access Copyrights request for leave and refrain from rendering a decision on the admissibility of the evidence until after receiving the U of Ts submissions. The U of T is not a party to the tariff proceeding and did not receive any prior notice regarding the submission of the Proposed Evidence from Access Copyright or any other party. It was only when Ms. Brooks December 13 letter to the Board was drawn to the U of Ts attention that it became aware of Access Copyrights request. This failure to inform the U of T has left it in a position where it cannot substantively respond to Access Copyrights submissions within the timelines set out by the Board. The U of T needs to brief counsel and seek legal advice in view of the prejudice that will result to the U of T if the Proposed Evidence is admitted. Due to the intervening holidays, our office has limited availability until January 3, and the U of T closes as of the end of day on December 20 and will re-open on January 6. Therefore, the U of T will not be able to respond substantively on the issue of admissibility with respect to Access Copyrights submission or the Boards request for submissions from the objectors until after January 6.

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The U of T notes that, prior to writing the Board directly, on December 17, the U of T contacted Access Copyright and asked it to withdraw its request for leave to file this evidence. Access Copyright refused in a letter received this afternoon. This has prompted the U of T to seek leave from the Board to make submissions by no later than January 13. Yours respectfully, Cassels Brock & Blackwell LLP

Peter J. Henein PJH/cb


cc: C. Chisick, Cassels Brock N. Brooks & R. Hofley, Blakes D. Fewer A. Katz S. Maguire

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