Czarnogorski v. Society of Composers, Authors, and Music Publishers Canada, 2007 FCA 316

Date: 20071003

Docket: A-227-05

Citation: 2007 FCA 316

CORAM:       NADON J.A.

                        SEXTON J.A.           

                        SHARLOW J.A.

BETWEEN:

ANDREW CZARNOGORSKI

Appellant

and

SOCIETY OF COMPOSERS, AUTHORS AND

MUSIC PUBLISHERS OF CANADA

Respondent

Heard at Toronto, Ontario, on October 3, 2007.

Judgment delivered from the Bench at Toronto, on October 3, 2007.

REASONS FOR JUDGMENT OF THE COURT BY:                                         SEXTON J.A.

Date: 20071003

Docket: A-227-05

Citation: 2007 FCA 316

CORAM:       NADON J.A.

                        SEXTON J.A.           

                        SHARLOW J.A.

ANDREW CZARNOGORSKI

Appellant

and

SOCIETY OF COMPSERS, AUTHORS AND

 MUSIC PUBLISHERS OF CANADA

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on October 3, 2007)

SEXTON J.A.

[1]               We are not persuaded that the Trial Judge erred in his award of costs. The issue relating to the offer to settle was not brought to his attention prior to judgment nor did counsel for the Appellant ask the Trial Judge to reserve his decision on costs until after a determination of liability had been made, in order to allow for representations to be made on the subject of costs, after the main findings of the Trial Judge were known.

[2]               The order of the Trial Judge providing for no costs was not unreasonable having regard to the fact that (a) the Respondent was successful against the corporate defendant but unsuccessful against the Appellant, and that (b) both the corporate defendant and the Appellant were represented by the same counsel and (c) both defendants denied liability for the infringement thus putting the Respondent in the position of having to prove the infringement. It is also significant that the Appellant was the president of the corporate defendant and at all material times was the operator and manager of the business of the corporate defendant.

[3]               The appeal should therefore be dismissed with costs.

“J. Edgar Sexton”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                  A-227-05

STYLE OF CAUSE:                                                  ANDREW CZARNOGORSKI

                                                                                                                        Appellant

and

SOCIETY OF COMPOSERS, AUTHORS, AND MUSIC PUBLISHERS CANADA

                                                                                                                        Respondent

PLACE OF HEARING:                                            TORONTO, ONTARIO

DATE OF HEARING:                                              OCTOBER 3, 2007

REASONS FOR JUDGMENT

OF THE COURT BY:                                               (NADON, SEXTON, SHARLOW JJ.A.)

DELIVERED FROM

THE BENCH BY:                                                      SEXTON, J.A.

APPEARANCES:

SOLICITORS OF RECORD: