Date: 20120323
Docket: A-66-12
Citation: 2012 FCA
98
Present: MAINVILLE J.A.
BETWEEN:
EL
MOCAMBO ROCKS INC.
Appellant
and
SOCIETY OF COMPOSERS, AUTHORS
AND
MUSIC PUBLISHERS OF CANADA (SOCAN)
Respondent
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa, Ontario,
on March 23, 2012.
REASONS
FOR ORDER BY: MAINVILLE
J.A.
Date: 20120323
Docket: A-66-12
Citation: 2012 FCA 98
Present: MAINVILLE
J.A.
BETWEEN:
EL MOCAMBO ROCKS INC.
Appellant
and
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA (SOCAN)
Respondent
REASONS FOR ORDER
MAINVILLE J.A.
[1]
The
appellant is appealing the order of Hughes J. of the Federal Court dated
January 24, 2012 by which a default judgment was granted against it in the
amount of $16,990.00 with costs.
[2]
The
appellant submits a motion pursuant to Rule 120 of the Federal Courts Rules,
SOR/98-106 for leave to be represented in this appeal by its president and
owner Mr. Abbas Jahangiri, rather than by a solicitor. Rule 120 reads as
follows:
|
120. A corporation,
partnership or unincorporated association shall be represented by a solicitor
in all proceedings, unless the Court in special circumstances grants leave to
it to be represented by an officer, partner or member, as the case may be.
|
120. Une personne morale, une
société de personnes ou une association sans personnalité morale se fait
représenter par un avocat dans toute instance, à moins que la Cour, à cause
de circonstances particulières, ne l’autorise à se faire représenter par un
de ses dirigeants, associés ou membres, selon le cas.
|
[3]
In order
to demonstrate special circumstances under Rule 120 in the context of an appeal
to this Court – and though other factors may apply depending of the nature of
the appeal – a corporation must at least demonstrate that (a) it cannot afford
a solicitor; (b) that the issues in appeal are not of such a complexity as to
be beyond the reasonable capabilities of the proposed representative; and (c)
that the appeal can be handled expeditiously by the proposed representative.
[4]
The
demonstration that a corporation cannot afford a solicitor should usually be
made by submitting complete and clear financial information concerning the
corporation, preferably by means of financial statements. Financial statements
are particularly useful for this purpose where, as in this case, a corporation
is actively carrying on a business enterprise.
[5]
In
considering the capabilities of the proposed representative to pursue the
appeal for a corporation, and whether that representative can handle
expeditiously the appeal, the conduct of the corporation and of its
representative in the court below may also be taken into account.
[6]
In this case,
the appellant corporation has failed to provide financial statements in support
of its motion. The only documentary evidence submitted are a bank statement for
an account with the CIBC showing an overdraft of $5,607, a property tax notice
dated November 3, 2011 relating to a building which is not owned by the
appellant corporation, and an Ontario Ministry of Revenue retail sales tax and
interest summary dating from over one year ago and concerning the period of
November 2006 to June 2010. In the absence of clear updated financial
statements or of other clear and updated financial information concerning its
continuing operations, I am unable to conclude that the appellant corporation
does not have the financial capacity to retain a solicitor to pursue its
appeal.
[7]
In
addition, though the appellant corporation asserts that Mr. Jahangiri has
represented it “in several other provincial cases”, no evidence of this has
been submitted through an affidavit or otherwise.
[8]
The record
before me also shows that (a) SOCAN’s statement of claim was filed with the
Federal Court on May 6, 2011; (b) on June 20, 2011, the Registry informed a
representative of the appellant corporation that it must be represented by
counsel or submit a motion requesting leave to be represented by an officer;
(c) no such motion was subsequently submitted prior to judgment; (d) a notice
of status review was issued by the Federal Court on November 16, 2011; (e) no
remedial measures were taken by the corporation to constructively respond to this
status review; (f) a resulting judgment was rendered by Hughes J. against the
corporation on January 24, 2012 upon an ex parte motion. Taking into
account the lack of diligence of the appellant corporation and of its proposed
representative in the Federal Court, I cannot conclude that the proposed
representative has the capabilities to diligently pursue this appeal.
[9]
In light
of all of the above, the motion shall be dismissed and the appellant shall have
20 days from the order in order to appoint a solicitor to represent it in this
appeal.
"Robert
M. Mainville"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-66-12
STYLE OF CAUSE: El
Mocambo Rocks Inc. v. Society of Composers, Authors and Music Publishers of Canada (SOCAN)
MOTION
DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: MAINVILLE J.A.
DATED: March 23, 2012
WRITTEN
REPRESENTATIONS BY:
|
Abbas Jahangiri
|
FOR
THE APPELLANT
(SELF-REPRESENTED)
|
|
Daniela Bassan
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
|
|
|
Stewart McKelvey
Halifax,
Nova Scotia
|
FOR
THE RESPONDENT
|
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