Date: 20100323
Docket: T-79-07
Citation: 2010
FC 328
Ottawa, Ontario, March 23, 2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
CANADIAN
PRIVATE COPYING COLLECTIVE
Plaintiff
and
BLUE MEDIA GROUP INC.,
COMPUTER ULTRA CORPORATION and
COMPUTER ULTRA DISTRIBUTION
INC.
Defendants
and
Docket: T-1241-09
BETWEEN:
CANADIAN
PRIVATE COPYING COLLECTIVE
Plaintiff
and
BURN N LEARN INC., c.o.b. blankmedia.ca
and
THOMAS RICHER, c.o.b. Bits N PCs Computer
and blankmedia.ca and
HEATHER
RICHER, c.o.b. Bits N PCs Computer and blankmedia.ca
Defendants
REASONS FOR ORDER AND ORDER
[1]
In these
two files, the Defendants asked for the same relief against the Plaintiff for
essentially the same reasons. The Order sought is a form of gag order
preventing the Plaintiff from contacting the Defendants’ customers, who may
have evidence relevant to this litigation, without first securing the
Defendants’ consent or an order from this Court.
[2]
The CPCC
is a body created by statute to collect and administer charges due on the sale
of blank media (a blank CD or tape is an example). These charges are set forth
in a tariff. The Defendants have been sued for failure to collect and remit
these charges on blank media sold.
[3]
As a
result of pre-trial disclosure, the Defendants, with a fair degree of
reluctance and obfuscation, finally produced the names of the customers who may
have purchased items to which the tariff applied.
[4]
The
Plaintiff wrote to a number of these customers advising them of the existence
of the litigation and outlining that they may have evidence relevant to that
litigation. The Plaintiff then asked the customers to maintain the evidence and
to make it available to the Plaintiff if necessary.
[5]
The
Defendants have objected to this form of contact with their customers alleging
that it amounts to intimidation of the customers and undermines the business
relationship with the respective Defendants.
[6]
The
Defendants concede that the letter itself is not improper but describe it as a
sinister motive to the Plaintiff – to destroy their business before the matter
ever proceeds to trial.
[7]
The
Plaintiff justifies the letter, both on its non-offensive terms and on the
grounds of necessity, due to the destruction of some of the Defendants’
documents. This document destruction was said to be part of a regular document
clean-up and not for some ulterior motive.
[8]
The Order
sought is unusual and is akin to an injunction. As such, the principles
applicable to injunctive relief are relevant to this motion. The motions have
been argued on that basis. The elements of the tripartite test set forth in RJR-MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 are
discussed below.
I. SERIOUS ISSUE
[9]
Other than
saying that the Defendants have a defence and therefore this part of the
tripartite test is met, the Defendants concede that they cannot point to any
precedent or statutory provision which justifies or supports the type of relief
sought here.
[10]
It is not
surprising that no such precedent exists because the nature of the order sought
offends the long established principle that “there is no property in a witness”,
as Lord Denning said in Harmony Shipping Co. v. David, [1979] 3 ACC E.R.
177 at p. 181 (CA).
[11]
There is
no suggestion that the Plaintiff has breached the implied undertaking on
discovery, that matters disclosed may only be used for purposes of that
litigation. In fact, the Plaintiff’s letter is clearly directed at securing
evidence for the trial.
[12]
Therefore,
on this first part of the test, the Defendants fail. On those grounds alone,
this motion should be dismissed; however, the Court will comment on the
remaining parts of the tripartite test.
II. IRREPARABLE
HARM
[13]
The
Defendants cannot establish harm, much less irreparable harm. Evidence from one
Defendant expressing his fears and an affidavit from the Defendants’ counsel is
not sufficient evidence to establish this prerequisite. There is no evidence of
loss or change in sales or customers’ complaint or anything else one would
expect to see in a commercial case alleging that commercial harm has occurred
or is reasonably likely to occur (as in this case, the relief is analogous to a
quia timet type injunction).
III. BALANCE OF
CONVENIENCE
[14]
Any
suggestion that the Plaintiff is engaged in a fishing expedition has been dealt
with by Prothonotary Milczynski.
[15]
The Order
sought would interfere with the Plaintiff’s ability to conduct its pre-trial
and trial activities without the interference from the Defendants.
[16]
The burden
of proof rests with the Plaintiff, the litigation must be conducted in
accordance with the usual rules and done so efficiently. The Defendants’
interest in isolating its customers must give way to the needs for proper and
effective litigation. The rights of the Plaintiff on this point trump any
interest of the Defendants.
[17]
Therefore,
the motions are dismissed with costs.
ORDER
THIS COURT ORDERS that the motions are dismissed
with costs.
“Michael
L. Phelan”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-79-07
STYLE OF CAUSE: CANADIAN
PRIVATE COPYING COLLECTIVE
and
BLUE
MEDIA GROUP INC., COMPUTER ULTRA CORPORATION and COMPUTER ULTRA DISTRIBUTION
INC.
AND
DOCKET: T-1241-09
STYLE OF CAUSE: CANADIAN
PRIVATE COPYING COLLECTIVE
and
BURN N
LEARN INC., c.o.b. blankmedia.ca and
THOMAS
RICHER, c.o.b. Bits N PCs Computer and blankmedia.ca and HEATHER RICHER, c.o.b.
Bits N PCs Computer and blankmedia.ca
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: March
15, 2010
REASONS FOR ORDER
AND ORDER: Phelan J.
DATED: March
23, 2010
APPEARANCES:
|
Mr. Randy
Sutton
|
FOR THE PLAINTIFF
|
|
Mr. Orie
Niedzviecki
|
FOR THE DEFENDANTS
|
SOLICITORS
OF RECORD:
|
OGILVY RENAULT
LLP
Barristers
& Solicitors
Toronto, Ontario
|
FOR THE PLAINTIFF
|
|
ELLYN LAW LLP
Barristers
& Solicitors
Toronto, Ontario
|
FOR THE DEFENDANTS
|
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