Mcue Enterprises Corp. v. Entral Group International Inc., 2006 FCA 289

Date: 20060830

Docket: A-272-06

Citation: 2006 FCA 289

Present:          SHARLOW J.A.

BETWEEN:

MCUE ENTERPRISES CORP.,

d/b/a Di Da Di Karaoke Company,

VITUS WAI-KWAN LEE and YUK SHI (TOM) LO

Appellants

and

ENTRAL GROUP INTERNATIONAL INC. and TC WORLDWIDE LTD.

Respondents

Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on August 30, 2006.

REASONS FOR ORDER BY:                                                                                  SHARLOW J.A.

Date: 20060830

Docket: A-272-06

Citation: 2006 FCA 289

Present:          SHARLOW J.A.

BETWEEN:

MCUE ENTERPRISES CORP.,

d/b/a Di Da Di Karaoke Company,

VITUS WAI-KWAN LEE and YUK SHI (TOM) LO

Appellants

and

ENTRAL GROUP INTERNATIONAL INC. and TC WORLDWIDE LTD.

Respondents

REASONS FOR ORDER

SHARLOW J.A.

[1]               This is a motion by the appellants (collectively, MEC) to settle the contents of the appeal book. The parties have agreed on the contents except for one document, a letter dated March 16, 2006 from counsel for the respondents (collectively, EGI) to counsel for MEC.

[2]               EGI is suing MEC in the Federal Court for breach of copyright. There have been a number of interlocutory motions. One was a motion by MEC for an order striking the statement of claim as against the appellants Mr. Lee and Mr. Lo. That motion was denied by the Prothonotary on February 24, 2006. MEC moved under Rule 51 for an order reversing the Prothonotary’s decision. The Rule 51 motion was heard by a Judge of the Federal Court on March 20, 2006 and dismissed on June 1, 2006 (2006 FC 671). The Judge’s decision is the subject of this appeal.

[3]               The February 24, 2006 order of the Prothonotary also granted the motion of MEC for additional particulars of “the alleged wilfulness and knowledge by [MEC] of their allegedly infringing activities.” EGI did not appeal that part of the Prothonotary’s order.

[4]               EGI wishes to have the March 16, 2006 letter included in the appeal book because it contains an allegation to the effect that Mr. Lee and Mr. Lo were aware of the existence of the copyright in issue in this case, and decided not to agree to a certain licensing arrangement proposed by EGI. It is argued for EGI that a document providing particulars of an allegation in a statement of claim is to be treated like a pleading (referring to Cremco Supply Ltd. v. Can. Pipe Co., [1998] F.C.J. No. 435 (QL) (F.C.T.D.)), and must be included in the appeal book under Rule 344(1)(d).

[5]               It is argued for MEC that the March 16, 2006 letter should not be included in the appeal book because it was not part of the record before the Judge when he made the order under appeal, and because it contains information that, if true, would reveal certain facts about privileged settlement discussions. I do not consider it necessary to deal with the question of privilege.

[6]               Generally, an appeal book should not contain documents that were not before the Judge who made the order under appeal (except, of course, the order itself, any reasons for that order, and certain documents prepared specifically for the appeal; see Rules 344(1)(a), (b), (c), (f), (h) and (i)). A more important limitation relates to relevance. The appeal book should contain only the documents that are required to dispose of a matter in issue in the appeal.

[7]               Where a party tries unsuccessfully to present a document as evidence in a hearing, and does not appeal the ruling by which the document was excluded from consideration, that document normally will not meet the test of relevance: see, for example, West Vancouver v. British Columbia (Ministry of Transportation), 2005 FCA 281.

[8]               The parties do not agree on whether the March 16, 2006 letter was part of the record before the Judge. The letter itself contains a request that counsel for MEC consent to a copy of the letter being presented to the Judge at the hearing of the Rule 51 motion. Counsel for MEC did not consent. The letter was not included in the motion record filed by EGI for the hearing on March 20, 2006. Apparently the matter of the letter was raised at the hearing, but the Judge does not mention the letter in his reasons.

[9]               From the material filed in this Court, it is not possible to determine whether the Judge made any ruling in respect of the March 16, 2006 letter, but it would appear that if he did refuse to permit the letter to be treated as part of the record, EGI has not appealed that decision. In these circumstances, it seems appropriate to deal with the present motion on the basis that the March 16, 2006 letter was not before the Judge when he made the order under appeal, either because the Judge did not consider the request of EGI to treat the letter as part of the motion record, or because he considered that request and rejected it. In either case, Judge’s decision on that point has not been appealed. That is a sufficient basis for concluding that the letter should not form part of the appeal book.

[10]           It is argued for EGI that even if the March 16, 2006 was not part of the record before the Judge, Rule 344(1)(d) requires it to be included in the appeal book. That rule says that an appeal book is to contain:

The word “pleading” is defined in Rule 2 as:

[11]           In the context of an appeal of an order disposing of an interlocutory motion, the “proceeding” is the motion. A statement of particulars may or may not be relevant to an appeal from a decision on an interlocutory motion, depending upon the nature of the motion, the contents of the motion records filed by the parties, and the state of the court file at the time the motion is considered. Rule 344(1)(d) does not require a statement of particulars to be included in an appeal book in relation to an appeal of an interlocutory motion if it has never been filed with the Court, either by including it in a motion record in relation to the interlocutory motion, or by having it accepted for filing separately, upon presentation to the Registry or the motions judge.

[12]           An order will be made requiring the appeal book to contain all the documents to which the parties have agreed, but not the March 16, 2006 letter. Costs of this motion will be borne by EGI regardless of the outcome of this appeal.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-272-06

STYLE OF CAUSE:                                                              MCUE ENTERPRISES CORP.,

                                                                                                d/b/a Di Da Di Karaoke Company,

                                                                                                VITUS WAI-KWAN LEE and YUK SHI (TOM) LO v.

                                                                                                ENTRAL GROUP INTERNATIONAL INC. and

                                                                                                TC WORLDWIDE LTD.

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                             SHARLOW J.A.

DATED:                                                                                 AUGUST 30, 2006

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: