Date: 20030605
Docket: A-554-02
Citation: 2003 FCA 256
CORAM: LINDEN J.A.
ROTHSTEIN J.A.
SEXTON J.A.
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Appellant
and
960122 ONTARIO LTD., c.o.b. as BLUE MOUNTAIN
GATEWAY TAVERN
Respondent
REASONS FOR JUDGMENT
SEXTON J.A.
Facts
[1] The appellant takes assignments of copyright of works from authors and composers in Canada for the purpose of protecting the rights of those individuals in their works.
[2] In the present case the appellant commenced an action against the respondent for copyright infringement in October 2000.
[3] On April 2, 2001 the appellant was awarded default judgment against the respondent by Heneghan J.
[4] The judgment of Heneghan J. provided that the respondent had infringed the appellant's copyright and the respondent was ordered to pay damages and profits arising from such infringement, the amount of such damages and profits to be determined at a reference.
[5] The judgment also provided inter alia that the respondent must serve and file a Statement of Issues and an Affidavit of Documents on the appellant and that if the respondent was in default of these obligations the appellant could, on ex parte application, become entitled to a reference to be held without notice to the respondent, such reference to be held on ex parte basis.
[6] The respondent defaulted on filing a Statement of Issues and serving and Affidavit of Documents and on motion by the appellant, by order dated May 10, 2002, McGillis J. ordered that the appellant was entitled to proceed to a reference on an ex parte basis.
[7] By order of the Associate Chief Justice dated May 24, 2002, Mr. Roger R. Lafrenière, Prothonotary, was designated as the referee in the proceeding.
[8] By order dated July 18, 2002 the Referee set the date for the hearing of the reference and ordered that the appellant personally serve the respondent with a copy of his order and any affidavit evidence that the appellant intended to rely upon at the hearing of the reference.
[9] On August 26, 2002 the appellant by motion to the Trial Division sought an order setting aside the order of the Referee on the basis that the he had erred in requiring the appellant to serve the respondent with notice of the reference, arguing that this amounted to a variance of the order of McGillis J. which had entitled the appellant to a reference on an ex parte basis. On September 19, 2002 the Motions Judge dismissed the appellant's motion on the grounds that no appeal lies from an interlocutory order of a referee. He further held that in any event the order of the Referee requiring a notice to be served on the respondent did not amount to a variance of the order of McGillis J.
[10] We were told on the appeal that this matter is of some importance to the appellant. The appellant brings actions against a great number of persons who infringe its copyright by playing or performing musical works without paying the appropriate licence fees to the appellant. After the appellant brings action against such people, frequently the parties do not respond and proceedings are then taken in default. The appellant says that many of such persons are transient and that requiring service upon them of further notices in the proceedings constitutes hardship because in many cases the people cannot be found result in delay and unnecessary expense for the appellant.
Issues
1. Does an appeal lie from an interlocutory order of a referee?
2. Did the order of the Referee vary the order of McGillis J. and if so did this amount to his exceeding his jurisdiction as a referee?
Relevant Statutory Provisions and Rules
| Section 27. (1)Appeals from Trial Division - An appeal lies to the Federal Court of Appeal from ...
(c) any interlocutory judgment,
...of the Trial Division
Rule 4. Matters not provided for - On motion, the Court may provide for any procedural matter not provided for in these Rules or in an Act of Parliament by analogy to these Rules or by reference to the practice of the superior court of the province to which the subject-matter of the proceeding most closely relates.
Rule 51. (1) Appeal - An order of a prothonotary may be appealed by a motion to a judge of the Trial Division.
Rule 153.(2)Directions on reference - Notwithstanding rules 155 to 160, the Court may at any time give directions regarding the conduct of a reference
Rule 159. (1) Powers of referee - Subject to subsection (2), a referee shall have the same power and authority in matters of practice and procedure as would a judge of the Court presiding at the trial of an action.
|
L'article 27. (1)(c) Appels des jugements de la Section de première instance - Il peut être interjeté appel, devant la Cour d'appel fédérale, des décisions suivantes de la Section de première instance : ...
c) jugement interlocutoire ; ...
La règle 4. Principe général - En cas de silence des présentes règles ou des lois fédérales, la Cour peut, sur requête, déterminer la procédure applicable par analogie avec les présentes règles ou par renvoi à la pratique de la cour supérieure de la province qui est la plus pertinente en l'espèce.
La règle 51. (1) Appel - L'ordonnance du protonotaire peut être portée en appel par voie de requête présentée à un juge de la Section de première instance.
La règle 153.(2) Directives - Malgré les règles 155 à 160, la Cour peut à tout moment donner des directives concernant le déroulement d'un renvoi.
La règle 159. (1) Pouvoirs de l'arbitre - Sous réserve du paragraphe (2), l'arbitre possède les mêmes pouvoirs et la même autorité, en matière de pratique et de procédure, qu'un juge de la Cour présidant l'instruction d'une action.
|
| Rule 163. (1) Appeal of referee's findings - A party may appeal the findings of a report of a referee who is not a judge on motion to the division of the Court that ordered the reference.
Rule 399. (1)Setting aside or variance - On motion, the Court may set aside or vary an order that was made
(a) ex parte; or
(b) in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding, if the party against whom the order is made discloses a prima facie case why the order should not have been made.
|
La règle 163. (1)Arbitre qui n'est pas un juge - Une partie peut, par voie de requête, en appeler à la section de la Cour qui a ordonné le renvoi des conclusions du rapport de l'arbitre qui n'est pas un juge.
La règle 399. (1)Annulation sur preuve prima facie - La Cour peut, sur requête, annuler ou modifier l'une des ordonnances suivantes, si la partie contre laquelle elle a été rendue présente une preuve prima facie démontrant pourquoi elle n'aurait pas dû être rendue :
a) toute ordonnance rendue sur requête ex parte;
b) toute ordonnance rendue en l'absence d'une partie qui n'a pas comparu par suite d'un événement fortuit ou d'une erreur ou à cause d'un avis insuffisant de l'instance.
|
Analysis
[11] The appellant indicated to the Court that there was no precise section in the Federal Court Act or in the Federal Court Rules directed to appeals from interlocutory orders of a referee.
[12] Appeals do lie to the Court of Appeal from interlocutory judgments from the Trial Division pursuant to section 27(1)(c) of the Federal Court Act.
[13] By reason of section 159(1) of the Federal Court Rules a referee has the same power and authority in matters of practice and procedure as would a judge of the Court presiding at the trial of an action.
[14] By Rule 51(1) orders of prothonotaries may be appealed by motion to a judge of the Trial Division.
[15] Although it was argued by the appellant that because Mr. Lafrenière is a prothonotary, we should be governed by Rule 51(1) which provides that appeals may be taken from prothonotaries, we feel that in the present circumstances the Prothonotary was acting as a referee and consequently it must be decided whether an interlocutory appeal lies from a referee.
[16] Because appeals do lie from interlocutory judgments from the Trial Division and because Rule 159(1) gives to a referee the same power and authority in matters of practice and procedure as a judge of the Trial Division, logic would indicate that an appeal should lie from an interlocutory order of a referee. The appellant argued that were it otherwise, a referee could proceed with a reference fully outside the terms which had been set and no remedy would be available.
[17] I am of the view that Rule 4 provides a means of dealing with this issue. This rule states that the Court may provide for any procedural matter not provided for in the rules, by analogy or by reference to the rules. When looking at the rules it is quite apparent that appeals from interlocutory orders of judges lie and appeals from interlocutory orders of prothonotaries lie. It would make little sense if interlocutory orders of referees were not subject to appeal. Consequently it seems to me that one can rely on Rule 4 and say that by analogy, appeals from interlocutory orders of referees should lie.
[18] I am therefore of the view that the learned motions judge erred in holding that no appeal lies from an interlocutory order of the referee in the present case.
[19] This view, I believe, is supported by Rule 153(2) which permits the Court at any time to give directions regarding the conduct of a reference. Clearly the order in question here occurred during the conduct of the reference proceedings and it would be strange if the Court could give directions regarding the conduct of a reference but could not consider an interlocutory appeal from the referee.
[20] It should also be pointed out that pursuant to Rule 163 parties can appeal the findings or report of a referee.
Variance of the Order of McGillis J.
[21] It is clear that the conduct of a reference is governed by the order or judgment which set up the reference. Even where a judge is acting as a referee the judge so acting does not have the power to vary the order which set the reference. In conducting the reference the Referee must follow the precise wording of the order of judgment granting that reference: Merck v. Apotex 1997 77 C.P.R. (3d) 451 at 546.
[22] Consequently the Referee has no power, generally speaking, to vary the terms of reference.
[23] The only obvious way in which the order of McGillis J. relating to the ex parte nature of the proceedings could be varied would have been pursuant to Rule 399(1). Under that rule the Court can set aside or vary an ex parte order if the party against whom the order is made applies to the Court and discloses a prima facie case why the order should not have been made. In the present case the respondent made no such motion nor does there appear to be any basis on which such a motion could have been made.
[24] The Motions Judge was apparently of the view that the order of McGillis J. which entitled the plaintiff to a reference "which may be made ex parte" is not varied by a referee who orders notice of the hearing to be served on the defendants. He felt that the Prothonotary's order related only to the conduct of the reference, which is a matter of practice and procedure within the referee's discretion.
[25] I am of the view, however, that the use of the words ex parte used in the order of McGillis J. referred not only to the actual hearing itself but also as to the obligation to give notice of a hearing.
[26] The Latin words ex parte, translated literally, mean from one side or party only. In a judicial sense the words ex parte refer to a proceeding granted at the instance of and for the benefit of one party only, without notice to, or contestation by, any person adversely affected. (Manitoba (AG) v. Canada (National Energy Board) (1974), unreported, Court File No. T-2669-74, August 9, 1974 at p. 9 (F.C.T.D.)).
[27] It has been held that the defining element of an ex parte proceeding is the absence of notice to the other party: see Metropolitan Life Insurance v. Hover (1999), unreported, Court File No. 16735, April 16, 1999 at para., 22 (Alta. C.A.).
[28] It is therefore my view that the referee by requiring the appellant to give the respondent notice of the reference effectively varied the order of McGillis J. which had entitled the appellant to proceed to the reference on an ex parte basis. The Referee lacked the jurisdiction to do this.
Conclusion
[29] I would allow the appeal and set aside the order of the Motions Judge dated September 19, 2002, set aside the order of the referee dated July 18, 2002, and order that the reference in this matter be conducted on an ex parte basis without notice to the respondent in accordance with the order of McGillis J. dated May 10, 2002.
(Sgd.) "J. Edgar Sexton" J.A.
(Sgd.) "Allen M. Linden"
J.A.
(Sgd.) "Marshall E. Rothstein"
J.A.
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