Society of Composers, Authors and Music Publishers of Canada v. Trillion Investment Corp., docket T-2231-96

Date: 19990309

Docket: T-2231-96

BETWEEN:

     SOCIETY OF COMPOSERS, AUTHORS AND

     MUSIC PUBLISHERS OF CANADA

     Plaintiff

     - and -

     TRILLION INVESTMENT CORPORATION,

     carrying on business as

     COPPER JOHN'S TAVERN, and

     PETER GEORGE JOVANOVICH

     Defendants

     REASONS FOR ORDER

TEITELBAUM J.:

[1]      The Associate Senior Prothonotary, in a judgment dated March 6, 1997, ordered, amongst other matters, "that the Defendants:

(a) within fourteen days of the date of service of the Plaintiff"s Statement of Issues, file and serve on the Plaintiff, the defendant"s Statement of Issues; and

(b) within twenty-one days of the date of service of the Plaintiff"s Statement of Issues, serve on the Plaintiff, their Affidavit of Documents listing all documents relevant to the issues on this reference, including but not limited to financial statements, general ledgers, performer and agency contracts, cash receipt journals, cash disbursements journals, cheque stubs, general journals and cancelled cheques, for all years in issue in these proceedings; and thereafter produce such documents on request by the Plaintiff; (see paragraph 5 of judgment (Tab 4 motion record))

            

[2]      On June 11, 1997 the Defendants Trillion Investment Corporation and Peter George Jovanovich were served with Plaintiff"s Statement of Issues and Judgment (see affidavit of Robert Baker of June 8, 1997 (Tab 2 of Motion Record)).

[3]      On March 4, 1999 the Defendants were served with the Order of Mr. Justice Evans dated February 22, 1999 wherein the Defendants were ordered to attend before this Court on Monday March 8, 1999 at 2:00 p.m. to be prepared to hear proof of the contemptuous acts with which they are charged, namely, that they failed or refused to comply with paragraph 5 of the judgment of the Associate Senior Prothonotary, in that they have not served or filed the required documents (see affidavit of James H. Carr sworn March 5, 1999.)

[4]      Neither defendant appeared for the hearing. The Court had serious concerns as to whether or not contempt proceeding could proceed if an individual defendant, Peter George Jovanovich in this case, was not present as contempt proceeding, although not criminal, is quasi criminal in nature, in that proof beyond a reasonable doubt is required and an individual defendant, if found guilty of contempt may be sentenced to a period of incarceration.

[5]      Counsel for the Plaintiff submitted the cases of Society of Composers, Authors and Music Publishers of Canada v. 946945 Ontario Inc., T-1633-97 March 2, 1999 (F.C.T.D.) and Society of Composers, Authors and Music Publishers of Canada v. Timberlea Investments Ltd., et al, 152 F.T.R. 198, wherein Madame Justice Sharlow and Mr. Justice MacKay did find the Defendants guilty of contempt although, in both cases, the individual defendants and the corporate defendants failed to appear for the contempt hearing.

[6]      I am satisfied that individual defendants may be found guilty of civil contempt if they do not appear for a contempt hearing but I am satisfied that they cannot be incarcerated for civil contempt without being present for such a hearing.

[7]      The evidence made before me clearly establishes that the Defendants failed to file and serve a Statement of Issues and an Affidavit of Documents, as ordered, to the present time.

[8]      The Defendants are guilty of contempt.

[9]      I am satisfied, after reading the 946945 Ontario Inc. case (supra) and the Timberlea case (supra) that a fine of $1,000.00 for each defendant should be paid, and a further fine of $100.00 per day should be paid to the individual defendant for each day, after seven days after service of the present order, so long as the documents are not filed and served.

[10]      Costs are awarded to the Plaintiff on a solicitor and client basis.

                                 "Max M. Teitelbaum"

     J.F.C.C.

TORONTO, ONTARIO

March 9, 1999

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                          T-2331-96

STYLE OF CAUSE:                      SOCIETY OF COMPOSERS, AUTHORS AND

MUSIC PUBLISHERS OF CANADA

                             and -

TRILLION INVESTMENT CORPORATION,

                             carrying on business as

                             COPPER JOHN'S TAVERN, and

                             PETER GEORGE JOVANOVICH

DATE OF HEARING:                  MONDAY, MARCH 8, 1999

PLACE OF HEARING:                  TORONTO, ONTARIO

REASONS FOR ORDER BY:              TEITELBAUM J.

DATED:                          TUESDAY, MARCH 9, 1999

APPEARANCES:                      Mr. Mark Walker

                            

                                 For the Plaintiff

                            

                            

SOLICITORS OF RECORD:              Society of Composer, Authors &

                             Music Publishers of Canada

                             41 Valleybrook Dr.,

                             Don Mills, Ontario

                             M3B 2S6

                                 For the Plaintiff

                            

                    

                              FEDERAL COURT OF CANADA

                                 Date: 19990309

                        

         Docket: T-2231-96

                             Between:

SOCIETY OF COMPOSERS, AUTHORS AND

MUSIC PUBLISHERS OF CANADA

                            

Plaintiff

                             - and -

TRILLION INVESTMENT CORPORATION,

                             carrying on business as

                             COPPER JOHN'S TAVERN, and

                             PETER GEORGE JOVANOVICH

                        

     Defendants

                    

                            

            

                             REASONS FOR ORDER