Date: 20090311
Docket: A-517-08
Citation: 2009 FCA
78
CORAM: LÉTOURNEAU J.A.
NADON J.A.
TRUDEL J.A.
BETWEEN:
MAPLE LEAF SPORTS & ENTERTAINMENT LTD.
Appellant
and
SOCIETY OF COMPOSERS, AUTHORS
AND
MUSIC PUBLISHERS OF CANADA
Respondent
Heard at Toronto, Ontario,
on March
10, 2009.
Judgment delivered at Toronto, Ontario,
on March
11, 2009.
REASONS FOR JUDGMENT BY: TRUDEL
J.A.
CONCURRED
IN BY: LÉTOURNEAU
J.A.
NADON J.A.
Date: 20090311
Docket: A-517-08
Citation: 2009 FCA 78
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
TRUDEL J.A.
BETWEEN:
MAPLE LEAF
SPORTS & ENTERTAINMENT LTD.
Appellant
and
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
The respondent (SOCAN) has commenced an action against the
appellant (MLSE) claiming, inter alia, that MLSE had authorized the live
performance of protected musical works at concerts held at the Air Canada
Centre in Toronto since 1999 without fulfilling its various obligations under
the Copyright Act, R.S.C. 1985, c. C-42 and the applicable Tariffs.
[2]
This appeal arises from an interlocutory order of Hugessen
J. (the Motions Judge)
[2008 FC 1099, October 1, 2008] who set aside a previous order of the case
management Prothonotary (T-2221-04, June 19, 2008) made in the context of a
motion by the respondent to compel MLSE to answer various questions put during
discovery to a representative of MLSE.
[3]
The respondent, through question No. 36, sought to probe
MLSE’s knowledge, information and belief as to who performed and which songs
were performed at a number of identified concerts.
[4]
The Prothonotary ordered that the question be answered but
held that MLSE was “not required to make inquiries with its employees beyond
its representative on discovery” (Prothonotary’s Order, at subparagraph 1(b)(xi)).
[5]
The
Motions Judge, who incidentally was also authorized to act as the case
management judge, concluded that “to require the [appellant’s]
representative to interview [a] 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” (Reasons at
paragraph 8).
[6]
For
him, nonetheless, this did not end the matter. On the basis of a
cross-examination on affidavit of the appellant’s representative, the Motions
Judge found that MLSE was “actively obstructing legitimate attempts by the
[respondent] to marshal its evidence” by refusing to answer questions related
to the issues on discovery and that such refusal had no proper legal basis
pursuant to Rule 240 (ibid. at paragraphs 10 and 11). More particularly,
MLSE had refused to provide the names and contact particulars of all its former
and present employees who worked at concert events and to allow the respondent
to contact them and ask them questions about the concert performances at issue.
[7]
There
is no doubt that the appellant’s knowledge and the information it possesses is
highly relevant and at the core of the respondent’s attempt to identify those
who performed musical work at these concerts, as well as the works performed. This
information is necessary to determine the extent of the copyright
infringements, the sums due as royalties under the Tariffs and the damages
claimed.
[8]
The
Motions Judge ruled that MLSE could not 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 [the
respondent] so that the latter can do the work” (Ibid. at paragraph
12.). The Motions Judge also concluded that MLSE’s active obstruction led to
the loss of its right to object to the onerous nature of obtaining the
information required from it.
[9]
In
light of all the circumstances, I have not been persuaded that the Motions
Judge made an error in compelling, as he did, MLSE to answer question No. 36.
[10]
More
particularly, I am satisfied that the Motions Judge did not err in concluding
that the Prothonotary had acted upon a wrong principle when she overlooked the
fact that the appellant was responsible for creating the conditions of hardship. I am satisfied that his intervention was warranted on
that basis. This is sufficient to dispose of the present appeal without having
to decide on the application of Rule 240.
CONCLUSION
[11]
I
would dismiss the appeal with costs.
“Johanne
Trudel”
“I
agree
Gilles Létourneau J.A.”
“I
agree
M. Nadon J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-517-08
STYLE OF CAUSE: MAPLE
LEAF SPORTS & ENTERTAINMENT LTD. and SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 10, 2009
REASONS FOR JUDGMENT BY: TRUDEL J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NADON J.A.
DATED: March 11, 2009
APPEARANCES:
|
Glen A. Bloom
|
FOR
THE APPELLANT
|
|
Diane Cornish
Roger
Tam
|
FOR
THE RESPONDENT
|
SOLICITORS OF RECORD:
|
OSLER, HOSKIN & HARCOURT LLP
Ottawa,
Ontario
|
FOR
THE APPELLANT
|
|
GOWLING LAFLEUR HENDERSON LLP
Toronto, Ontario
|
FOR
THE RESPONDENT
|
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