Date:20010705
Docket: T-1514-96
Neutral Citation: 2001 FCT 760
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
- and -
NEWFOUNDLANDER INC. carrying on business as
THE NEWFOUNDLANDER RESTAURANT, and CHRISTOR ISSARIOTIS
Defendants
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] The Society of Composers, Authors and Music Publishers of Canada ("SOCAN") (the "Plaintiff") brings a Notice of Motion pursuant to the Federal Court Rules, 1998 (the "Rules"), for an Order that the Newfoundlander Inc., carrying on business as Newfoundlander Restaurant, and Christor Issariotis (the "Defendants") to show cause why they should not be found in contempt for failure to comply with a judgment of this Court dated December 3, 1996. The present motion follows the issuance of an Order dated April 25, 2001 authorizing the Plaintiff to proceed with this proceeding for contempt.
[2] On December 3, 1996, the Plaintiff obtained a judgment issued by Associate Senior Prothonotary Peter A.R. Giles which found that the Defendants had infringed the Plaintiff's copyright in musical works in which the Plaintiff owns the right to perform in public for the years 1992 to 1996, inclusive. The judgment also provided as follows:
11. That the Defendants, themselves or through their officers, servants, agents, workmen or otherwise, either directly or indirectly, be restrained from performing, authorizing or causing to be performed on premises under their control musical works in which the Plaintiff owns the performing rights;
12. That the Defendants, themselves or through their officers, servants, agents, workmen or otherwise, either directly or indirectly, be restrained from permitting, for their private profit, a place of entertainment to be used for the performance musical works in which the Plaintiff owns the performing rights;
[3] Upon the motion brought by the Plaintiff that the Defendants appear to show cause why they should not be held in contempt of this judgment, an Order was issued by this Court on April 25, 2001. The record shows that this Order was served upon the Defendants. The Defendants did not appear by counsel or in person, in the case of the non-corporate Defendant. The hearing proceeded on the basis of viva voce evidence presented by Mr. Robert N. Bleakley, Mr. Peter Panayotou and Ms. Georgina Pollock. As well, supplementary affidavits were tendered in respect of both Mr. Bleakley and Mr. Panayotou.
[4] Ms. Pollock is the Assistant Director of Licensing, Head Office, and National Policy for SOCAN. She testified that SOCAN is a performing rights society which licenses the public performance and communication to the public by telecommunication of musical works in its repertoire. The repertoire includes the musical works "Other Side", "Fast as You", "Suspicious Minds", "Lay Down Sally", "Memphis Tennessee", "Big City Turn Me Loose", "Let's Chase Each Other Around the Room" and "Six Days on the Road".
[5] According to the evidence of Mr. Bleakley, he is employed as a field representative with SOCAN. He has been a field representative since 1981 and monitors establishments to see if there is compliance with licenses concerning the use of music. He maintains logs on the music heard in public places of entertainment.
[6] He testified that he attended at the Newfoundlander Restaurant on February 23, 2001. A copy of his log was produced as Exhibit P-A. According to this Exhibit, Mr. Bleakley heard a sole, live performer singing "Other Side", "Fast as You", "Suspicious Minds", "Lay Down Sally" and "Memphis Tennessee".
[7] Mr. Bleakley was not questioned about the location of the Newfoundlander Restaurant or how he identified it, although the log records an address for this establishment at 472 Danforth Road, Scarborough, Ontario. He testified that he had no personal knowledge about the ownership of that establishment by the Defendant, Mr. Issariotis. His evidence in that regard was as follows:
Q. Are you aware who owns the Newfoundlander Restaurant?
A. Now I am, yes.
Q. And who is that?
A. Mr. Christor Issariotis.
Q. And is that owned personally by him or ...
A. I have no knowledge of that. This particular file came to me in January 2001 and as such that file was already, as far as SOCAN was concerned, in legal. And the only duties I was expected to perform was to go to the premises and to form a log of music.
[8] Mr. Peter Panayotou is also employed as a field representative in the licensing department. He visited the Newfoundlander Restaurant on December 8, 2000. A duo was playing and he heard various songs including "Big City Turn Me Loose", "Let's Chase Each Other Around the Room" and "Six Days on the Road". He did not produce a copy of any log concerning the performance of these works.
[9] Similarly to Mr. Bleakley, Mr. Panayotou did not provide any information about the location of the Newfoundlander Restaurant or how he identified it. He did not testify that he had seen Mr. Issariotis in the premises. When questioned about his knowledge of the ownership of the establishment, he testified as follows:
Q. Are you aware who owns the Newfoundlander Restaurant?
A. Yes, I am.
Q. Who is that?
A. I can't spell his name correctly, but Christor Issariotis. I'd have to see the paper to pronounce it correctly.
Q. Christor Issariotis?
A. Yes.
Q. And does he run that directly or through his corporation?
A. I'm not actually quite sure if he is in partnership with his wife or something like that. I really don't know.
[10] This motion proceeded pursuant to rule 470 of the Rules. That rule provides as follows:
| 470(1) Unless the Court directs otherwise, evidence on a motion for a contempt order, other than an order under subsection 467(1), shall be oral.
(2) A person alleged to be in contempt may not be compelled to testify.
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470 (1) Sauf directives contraires de la Cour, les témoignages dans le cadre d'une requête pour une ordonnance d'outrage au tribunal, sauf celle visée au paragraphe 467(1), sont donnés oralement.
(2) La personne à qui l'outrage au tribunal est reproché ne peut être contrainte à témoigner.
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[11] The evidence in this motion consisted of the viva voce evidence given by Ms. Pollock, Mr. Bleakley and Mr. Panayotou. Although two affidavits were submitted on behalf of both Mr. Bleakley and Mr. Panayotou, they do not address any matter not covered by their oral evidence. In light of the plain words of rule 470 and the fact that the deponents testified, these affidavits add nothing to the evidence.
[12] The burden of proof in contempt proceedings lies upon the party alleging contempt; see Tamec Inc. v. 2804166 Canada Inc. (1995), 65 C.P.R. (3d) 129, 104 F.T.R. 275 (T.D.). The burden to be met is proof beyond a reasonable doubt; see Beloit Canada Ltee/Ltd. v. Valmet Oy (1988), 20 C.P.R. (3d) 1, 82 N.R. 235 (Fed. C.A.).
[13] In this case, the Defendants did not appear. However, that failure does not shift the burden from the Plaintiff to prove the alleged contempt beyond a reasonable doubt. The question for determination is whether the Plaintiff has met its evidentiary burden.
[14] In my opinion, it has not. There is evidence about the location of the Newfoundlander Restaurant in the log maintained by Mr. Bleakley, but no evidence about the relationship between that establishment and the corporate Defendant, Newfoundlander Inc. There is inconclusive evidence about the relationship between the individual Defendant and the Newfoundlander Restaurant. Indeed, Counsel for the Plaintiff acknowledged in her oral submissions that there is some difficulty with establishing the relationship between the two Defendants and submitted that an Order for contempt should issue only to the individual Defendants.
[15] There is no evidence about the control, if any, exercised by the individual Defendant over the Newfoundlander Restaurant establishment. The Plaintiffs cannot establish the commission of contempt in this case simply by leading evidence about the performance of musical works but which does not address elements of ownership, control, permission to perform and the like, on the dates in question that is December 8, 2000 and February 23, 2001.
[16] The motion is dismissed. I allow the costs of service and a $200.00 counsel fee.
[17] As for the submission by Counsel for the Plaintiff that the Defendants were in contempt by failing to appear at the show cause hearing, I decline to make any order in that regard. As I read the show cause order, the failure by the Defendants to appear means that they were in jeopardy of having an order for contempt issued against them if they failed to rebut the evidence presented by the Plaintiff. However, the Plaintiff has failed to meet the onus on it and no order for contempt will issue. It is open to the Plaintiff to seek a further order in relation to the non-appearance of the Defendants if it so chooses.
ORDER
The motion is dismissed, with costs of service and a $200.00 counsel fee.
"E. Heneghan"
J.F.C.C.
OTTAWA, Ontario
July 5, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T- 1514-96
STYLE OF CAUSE:SOCIETY OF COMPOSERS, AUTHORS ET AL. and NEWFOUNDLANDER INC. ET AL.
PLACE OF HEARING: Toronto, Ontario
MOTION HEARD ON: June 4, 2001
REASONS FOR ORDER OF: HENEGHAN J.
DATE OF REASONS: July 5, 2001
APPEARANCES:
Ms. Colleen Stanley FOR PLAINTIFF
No appearance FOR DEFENDANT
SOLICITORS OF RECORD:
Society of Composers, Authors et al. FOR PLAINTIFF
(Legal Department)
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