Date: 20081001
Docket: T-2221-04
Citation: 2008
FC 1099
Ottawa, Ontario, October 1, 2008
PRESENT: The Honourable James K. Hugessen
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS
AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
and
MAPLE LEAF SPORTS &
ENTERTAINMENT LTD.
Defendant
REASONS FOR ORDER AND ORDER
[1]
This is an appeal by the plaintiff by way of motion from an Order
of the case management prothonotary who was called upon to deal with a large
number of issues arising on the examinations for discovery in this copyright
infringement action. Only one paragraph of the Order is in issue. That
paragraph freed the defendant's representative from making any further
inquiries of the defendant's past and present employees as to the alleged
performances of certain musical works at the Air Canada Centre in Toronto.
[2]
The plaintiff, the Society of Composers, Authors and Music
Publishers of Canada (SOCAN), performs the function of enforcing and collecting
license fees for the public performance of musical works in Canada. For practical
purposes it may be said to hold the copyright in almost all copyright musical
works performed in Canada.
[3]
The defendant (MLSE) is the operator of Air Canada Centre (ACC),
a large sports arena used primarily for indoor sports events (hockey and basketball)
but also not infrequently for public concerts and other shows.
[4]
In its action the plaintiff alleges that the defendant has
authorized or permitted a large number of unlicensed musical performances at
the ACC over the past ten years. The defendant denies this allegation and puts
plaintiff to strict proof of all its allegations, including its claims of
copyright.
[5]
On the oral examination for discovery of the defendant's
representative the plaintiff asked the latter to give the detail of all
performances which had been put in issue by the pleadings, including names of
performers and works performed. In the single paragraph of the Order under
appeal on this motion the case management prothonotary ordered as follows:
(xi) MLSE
shall answer the following question to the extent as directed in its
undertaking, and in particular, MLSE’s representative on discovery shall
provide the name of the performer(s) and songs performed where it is known to
her for concerts at issue. For greater clarity, MLSE is not required to make
inquiries with its employees beyond its representative on discovery.
[6]
The restriction of the
obligation to answer an admittedly relevant question to the representative's
personal knowledge and the denial of any further obligation to make further
enquiries of defendant's servants, agents and employees is very unusual. Rule
241 is clear:
241. Subject to
paragraph 242(1)(d), a person who is to be examined for discovery, other than a
person examined under rule 238, shall, before the examination, become informed
by making inquiries of any present or former officer, servant, agent or
employee of the party, including any who are outside Canada, who might be
expected to have knowledge relating to any matter in question in the action.
[7]
The rigour of the rule is tempered however by Rule 242 and
notably paragraph 1 (d ) which reads:
242. (1) A
person may object to a question asked in an examination for discovery on the
ground that
…
(d) it would be
unduly onerous to require the person to make the inquiries referred to in rule
241.
[8]
It would seem to be common ground that in ruling as she did the
prothonotary was relying on this provision and on the evidence which showed
that for the almost ten year period in issue the defendant had had
approximately 2,400 full and part time employees in the ACC (stage hands,
ushers, security agents, salespersons, etc.) whose duties might have allowed
(but did not require) them to notice who was performing and what musical works
were being performed. To require the defendant's representative to interview
such vast numbers of people on matters of which they might be expected to have
only imperfect recollection, if any, was at first blush a matter on which the
prothonotary was fully entitled to exercise her discretion and find that the
obligation would be unduly onerous.
[9]
If this were the end of the matter it would also be the end of
these Reasons for the impugned decision is manifestly one
which lay within the prothonotary's discretion and nothing that I have so far
said indicates that such discretion was improperly exercised.
[10]
But there is more: it appears, particularly
from the cross-examination on affidavit of the defendant's representative, that
the defendant was actively obstructing legitimate attempts by the plaintiff to marshal
its evidence. The following questions and answers are particularly instructive:
2
Q. Will the defendant provide the
names and
contact particulars of all its employees
who work at
concert events and allow SOCAN to
contact them
and ask them questions about the
concert
performances at issue?
MR. BLOOM: Refused. R/F
BY MR.
GILL:
3
Q. Will MLSE provide the names and
contact
particulars of all its former employees
who worked at
concert events and allow SOCAN to
contact them
and ask them questions about the
concert
performances?
A. No. R/F
[11]
This refusal can have no proper legal basis. Rule 240 is clear
and specific on the point:
240. A person being examined for discovery shall
answer, to the best of the person's knowledge, information and belief, any
question that
…
(b) concerns the
name or address of any person, other than an expert witness, who might
reasonably be expected to have knowledge relating to a matter in question in
the action.
[12]
The defendant cannot have it both ways. If the task of
interviewing its present and former employees is too burdensome for it it
cannot refuse to reveal the names and addresses of such employees to plaintiff
so that the latter can do the work. On the other hand, by refusing to reveal
the employees' identities and addresses it lost its right to object to the
onerous nature of obtaining the information required of it. One cannot plead
hardship when one is oneself solely responsible for the creation of the
conditions giving rise thereto. The defendant was itself the sole source of the
difficulty which it now seeks to invoke in its favour. In my respectful view,
by overlooking this extremely relevant factor and failing to take it into consideration
the prothonotary acted upon a wrong principle and her exercise of discretion
was fatally flawed. Her decision cannot stand.
[13]
The appeal will be allowed with costs and the defendant will be
ordered to answer the question on the basis of information which it shall seek
and obtain from all its present and former employees at the ACC.
ORDER
THIS COURT ORDERS that
1. Paragraph 1 (b) (xi) of the Order under
appeal is set aside and the following substituted therefor:
(xi) MLSE
shall answer the following question to the extent as directed in its
undertaking, and in particular, MLSE’s representative on discovery shall
provide the name of the performer(s) and songs performed in all concerts at
issue where such information can be obtained by diligent inquiry of all of
MLSE's present and former employees who might reasonably be expected to have
such knowledge.
2. Plaintiff shall have its
costs to be assessed.
"James
K. Hugessen"
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