The central issue in the Rogers case was whether the delivery of musical works via the internet constitutes communication of the musical works "to the public" by telecommunication, within the meaning of paragraph 3(1)(f) of the Copyright Act, such that copyright right holders should receive compensation.
The online music providers argued that downloads and streams of musical works are best characterized as private communications - transmissions of single copies of a work to single individuals - and therefore are not communications "to the public."
The Copyright Board found that online music services are communications to the public and established a tariff. An appeal to the Federal Court of Appeal was dismissed.
Because of the reasons in the ESA case (wherein a download was found not to be a "communication"), the Court found that the issue of "to the public" in respect of downloads was moot.
While musical works transmitted by streaming services are point-to-point transmissions between providers and consumers, Justice Rothstein nevertheless concluded that when understood in their proper context these services are communications "to the public." Achieving the highest possible number of online sales was found to be the raison d'être for online music services. Citing from Professor David Vaver's text, Justice Rothstein concluded that if content is intentionally made available to anyone who wants to access it, it is treated as communicated "to the public" even if users access the work at different times and place.
The following is a link to the full decision: http://scc.lexum.org/en/2012/2012scc35/2012scc35.html
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