Supreme Court of Canada
Composers,
Authors and Publishers Association of Canada, Limited v. Siegel Distributing
Company Limited et al., [1958] S.C.R. 61
Date:
1957-12-19
Composers, Authors And Publishers Association Of
Canada, Limited (Plaintiff) Appellant;
and
Siegel Distributing Company Limited Et Al. (Defendants) Respondents.
1957: December 9; 1957: December, 19.
Present: Kerwin C.J. and Rand, Cartwright, Fauteux and Abbott
JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.
Appeals—Right of appeal—Amount in dispute—Effect of
pleadings—The Exchequer Court Act, R.S.C. 1952, c. 98, s. 82.
[Page 62]
The mere fact that the plaintiff in an action in the Exchequer
Court for infringement of copyright claims more than $500 in damages is not
sufficient to give a right of appeal to the Supreme Court. Such a pleading does
not of itself establish that "the actual amount in controversy" in
the appeal exceeds $500 within the meaning of s. 82 of the Exchequer Court
Act. McNea and McNea v. The Township of Salt-fleet, [1955]
S.C.R. 827, applied.
MOTION by the respondents to quash an appeal from a
judgment of the Exchequer Court of Canada.
Appeal quashed.
The action was for infringement of copyright through the
use of a reproducing machine in a tea-room in Toronto. The defendant company
furnished and serviced the reproducing equipment and the individual defendants
were the proprietors of the tea-room in question.
The plaintiff claimed declarations, injunctions and
"the sum of $525.00 damages, or such further sum as this Court may see fit
to allow". The trial judge dismissed the action with costs, and the
plaintiff appealed.
In support of the motion to quash, the respondents filed
an affidavit, parts of which are summarized in the reasons for judgment. The
appellant filed an affidavit of W. S. Low, General Manager of the appellant
company, containing the following paragraphs:
2. The Plaintiff claims in this action the sum of $525
damages. No evidence was tendered at the trial in respect of the quantum of
damages for the reason that in more than 120 actions for damages for
infringement of copyright brought by the Appellant in the Exchequer Court of
Canada, a minority of which have come to trial, damages have not been assessed
at trial or on motion for judgment, but have been the subject of a reference to
the Registrar or Deputy Registrar of the said Court.
3. The Defendants in this action have continuously since
the filing of the statement of claim infringed the Appellant's copyrights by
continuing to perform in public music the sole right to perform which in public
in Canada is the property of the Appellant, and the Defendant Company is
engaged in activities similar to those carried on at the premises in question
in this action in numerous locations in the City of Toronto and elsewhere, and
at such locations has in a similar manner continued to infringe the Appellant's
copyrights.
* * *
6. The Appellant, as a result of observations made by its
staff and applications for licence made to it, believes that devices similar to
those in question in this appeal are used for public performance of music the
sole right to perform which in public in Canada is the property of the
[Page 63]
Appellant by persons in Canada who would be liable to the
Appellant for fees, according to the scale approved by the Copyright Appeal
Board, in sums aggregating more than $125,000 per year.
Paragraph 4 of the affidavit gave particulars of an
action brought by the appellant against other defendants where "punitive
damages" of $1,200 were awarded in respect of "infringements much
less numerous than" those established in this action.
G. W. Ford, Q.C., for
the defendants (respondents), applicants.
M. B. K. Gordon, Q.C., for the plaintiff
(appellant), contra.
The judgment of the Court was delivered by
The Chief Justice:—This
is a motion by the defendants to quash for want of jurisdiction an appeal
lodged by the plaintiff against the judgment of the Exchequer Court dismissing its action. The
application is supported by the affidavit of Carlton F. McInnis showing the
course of the trial and stating that the evidence offered by the plaintiff
indicated that from March 11, 1955 to May 3, 1956, there were ten instances of
recordings being played in the Superior Tea Room of the four musical works
referred to in the statement of claim. The deponent believes that as between
the plaintiff and the defendants the value of the amount in dispute is far less
than $500.
An examination of the transcript of the proceedings before
the Exchequer Court shows that on the argument before Mr. Justice Cameron
counsel for the plaintiff drew the Court's attention to the fact that the
statement of claim asked for $525 damages, "or such further sum as this
Court may see fit to allow", and later said:
… we are asking for $525 damages, which award would give the
Defendants the right to go, as a matter of course, to the Supreme Court of
Canada, … [this] is a fair and very modest request. We have no evidence to show
how much of a profit was made out of this installation.
In McNea and McNea v. The Township of Saltfleet, we said:
Very often the allegations of fact set forth in a statement
of claim and the amount claimed may be sufficient to show that the amount or
value of the matter in controversy in an appeal exceeds $2,000 within the
meaning of s. 36 of the Supreme Court Act.
[Page 64]
It was there decided that, in the circumstances of that
case as they were explained, the amount of damages asked for in the statement
of claim could not be said to be any indication that the amount or value of the
matter in controversy exceeded the stated sum.
Similarly in the present case, and notwithstanding the
affidavit of Mr. Low, it cannot be said that the mere claim by the plaintiff
for $525 damages, or a larger sum, is sufficient to show that the actual amount
in controversy in the appeal exceeds $500 within the meaning of s. 82 of the Exchequer
Court Act, R.S.C. 1952, c. 98. No opinion is expressed as to the damages
that might be allowed if the plaintiff had succeeded.
The motion is, therefore, granted with costs.
Appeal quashed.
Solicitors for the plaintiff, appellant
(respondent on the motion): Manning, Mortimer, Mundell & Bruce, Toronto.
Solicitors for the defendants, respondents
(applicants): Rogers & Rowland, Toronto.
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