Date: 19990302
Docket: T-1633-97
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
- and -
946945 ONTARIO INC., c.o.b. as LONG SHOTZ RESTAURANT AND
LOUNGE, and KEVIN MICHAEL KORMOS
Defendants
REASONS FOR ORDER
SHARLOW J.:
[1] On July 29, 1997, the Plaintiff commenced this action for royalties alleged to be payable by the Defendant 946945 Ontario Inc., and for other relief against both Defendants with respect to various allegations relating to royalties. The Defendants have not filed any pleadings.
[2] On December 18, 1997, Giles A.S.P. made an order upon the Plaintiff"s motion that, among other things, required the Defendants to file and serve a Statement of Issues, and serve an Affidavit of Documents by stated deadlines. That order was served on both Defendants on March 23, 1998. By February 8, 1999, the deadlines had long since passed, and neither Defendant had complied with the order.
[3] By order dated February 8, 1999 made upon the Plaintiff"s motion, Reed J. made an order pursuant to Rule 467 ordering the Defendants to appear before this Court on March 1, 1999 at 2:00 P.M. or such later time as counsel might be heard, and to be prepared to hear proof that they had failed to file and serve the documents as required by the December 18, 1997 order, and to be prepared to present any defence that they may have. The order of Reed J. was served on the Defendants on February 24, 1999.
[4] The hearing commenced before me at 2:00 P.M., March 1, 1999. Counsel for the Plaintiff appeared. The Defendants did not appear in person or by counsel. Evidence at the hearing established beyond a reasonable doubt that the Defendants were served with both orders, and that they have not filed or served the documents as required by the order of December 18, 1997.
[5] I find both Defendants to be in contempt of this Court in that they have failed to file and serve a Statement of Issues, and have failed to serve an Affidavit of Documents, as required by the order of Giles A.S.P. dated December 18, 1997.
[6] It remains to consider the appropriate penalty. The facts in Society of Composers, Authors and Music Publishers of Canada v. Timberlea Investments Ltd. et al (T-1515-96)1 are substantially the same as in this case. The failure of the defendants in that case to file and serve documents pursuant to a court order resulted in the imposition of a fine of $1,000.00 and a further fine of $100.00 per day for each day after service of the order, so long as the documents were not filed and served. A similar penalty was imposed on the defendants in similar circumstances in Society of Composers, Authors and Music Publishers of Canada v. Niagara Hotel et al (T-17-97).2
[7] In the Timberlea case the Court also held that the failure of the defendants to appear as ordered in the Rule 467 order was a further contempt of court for which a separate penalty could be imposed. At this time I am not prepared to make such an order on my own motion or to make a finding of contempt for the failure to appear. However, this does not preclude the Plaintiff from initiating further contempt proceedings in that regard.
[8] In my view, a fine similar to that imposed in Timberlea and Niagara Hotel would be appropriate in this case. It reflects the Court"s concern that its orders be obeyed, and at the same time provides an incentive for compliance with an order in which the Plaintiff has a continuing interest. I impose on the Defendants, jointly and severally, a fine of:
| (1) $1,000 payable on or before April 1, 1999, and |
| (2) a further $100 for each day during the period commencing on April 2, 1999 and ending on the day the order of Giles A.S.P. is complied with, payable on the final working day of each calendar month during that period. |
[9] The Plaintiff is awarded solicitor and client costs.
"Karen. R. Sharlow"
F.C.J.J.
TORONTO, ONTARIO
March 2, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1633-97
| STYLE OF CAUSE: SOCIETY OF COMPOSERS, AUTHORS AND MUSIC PUBLISHERS OF CANADA |
and -
| 946945 ONTARIO INC., c.o.b. as LONG SHOTZ RESTAURANT AND |
| LOUNGE, and KEVIN MICHAEL KORMOS |
DATE OF HEARING: MONDAY, MARCH 1, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: SHARLOW J. |
DATED: TUESDAY, MARCH 2, 1999
APPEARANCES: Mr. Mark F. Walker
For the Plaintiff
SOLICITORS OF RECORD: Society of Composers, Authors and
Music Publishers of Canada
41 Valleybrook Drive,
Don Mills, Ontario
M3B 2S6
For the Plaintiff
FEDERAL COURT OF CANADA
Date: 19990302
Docket: T-1633-97
Between:
| SOCIETY OF COMPOSERS, AUTHORS AND MUSIC PUBLISHERS OF CANADA |
- and -
| 946945 ONTARIO INC., c.o.b. as LONG SHOTZ RESTAURANT AND |
| LOUNGE, and KEVIN MICHAEL |
Defendants
REASONS FOR ORDER
__________________
1 Reasons of MacKay J., dated April 28, 1998, 152 F.T.R. 198.
2 Unreported decision of Evans J. dated November 17, 1998. The defendant in the Niagara Hotel case appeared at the hearing, unlike the defendants in Timberlea and the present case.
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