Federal Court Decisions

Decision Information

Decision Content

T-75-96

Between:

SOCIETY OF COMPOSERS AUTHORS et al.,

Applicants,

- and -

THE CONVENTION CENTRE CORPORATION,

Respondents.

Let the attached edited version of the transcript of my Reasons delivered orally from the bench at Winnipeg, Manitoba, on August 12, 1998, be filed to comply with Section 51 of the Federal Court Act.

F.C. Muldoon

Judge

Ottawa, Ontario October 14, 1998

FILE NO. T-75-96

IN THE FEDERAL COURT OF CANADA

BETWEEN:

SOCIETY OF COMPOSERS AUTHORS ET AL.,

Applicants,

- and­

THE CONVENTION CENTRE CORPORATION,

Respondents.

Transcript of decision given by Justice Muldoon on Wednesday, the 12th day of August, A.D., 1998.

REPORTED BY:

Sherryl Puchlik, Official Examiner, Q.B.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

WEDNESDAY, AUGUST 12TH, A.D., 1998

THE COURT: The Court is prepared to give a decision on this application by the defendant for summary judgment. The Court will be very brief. It could not possibly give reasons for judgment to equal the volume of material which has been filed.

In summary, the Court finds that the application for summary judgment is premature. Discoveries have not been held in a matter of complexity and great

detail dealing with events and musical works performed at various events. The case cries out for discovery. All is not lost to the parties, however. This has been an exercise which can be of some use to them.

The applicant cites the decision of Mr. Justice Joyal in DeTervagne v. Township of Beloeil, [1993], 3FC 227, a decision of Mr. Justice Joyal as mentioned, for the proposition that the Convention Centre acting as a licensor is not liable for copyright infringement, regardless of whether the licensee paid the necessary royalties to SOCAN for the use of musical works within its repertoire. When events are licensed at the Centre, a contract is signed between the Centre and the organization seeking to rent out space from the Centre. The standard forms of contract have been put before the Court. Each

2

1       contract specifies however, that the licensee is required to

2    pay all royalties and that the Centre will not be

3    responsible for non-payment of royalties regardless of

4     whether the contracts contain such clauses. In DeTervagne,

5     Mr. Justice Joyal indicated that regard must be had to the

6    facts of each case, particularly to the nature of control

7    exercised by the body supplying the means by which the

8    copyright is allegedly infringed.

9                     After summarizing the relevant case law, the

10    Australian case law on this question, Mr. Justice Joyal

11    concluded at page 239, this interpretation of the Australian

12    Courts must be rejected in Canada in view of Vigneux, (that

13    is the name of the case), which clearly established that a

14    defendant who simply supplies the means which make the

15    infringement possible, cannot be held liable for authorizing 16      the infringement if he or she had no control over the means 17 in question.

18                    Now he continued by examining Canadian case

19    law in this case on this point, and he mentioned a decision

20    of the Supreme Court of Canada in Muzak Corp v. Composers,

21    Authors and Publishers Association of Canada Limited,

22    [1953], 2 SCR 182, that is the leading decision in Canada

23    interpreting the concept of authorization.

24                    Mr. Justice Joyal also said that the first

25      principle which was applied in these was that in order to

3

1    "authorize", within the meaning of the Copyright Act, a

2     person must sanction, approve or countenance something more

3     than the mere use of equipment, which might possibly be used

4    in an actual infringement of the copyright.

5                     The Court went on at some lengths and quoted

6     the Falcon v. Famous Players Film Company and Lord Banks and

7    Lord Atkin, Mr. Justice Joyal later made the following

8    statement, pages 247 to 248 in which he said, "Having

9     completed the survey of the case law relating specifically

10    to the concept of "authorization", in respect of copyright,

11    I find that each case essentially turns on its facts and

12    that the Court must give judgment on those facts. This

13    means that the case law is not always a faithful servant."

14    In the case at bar, the applicant has not established that

15    it was merely supplying the means by which the copyright was

16    infringed. There is evidence to establish that staff

17    members from the Centre also worked during the licensed

18    event. As Mr. Justice Joyal stated, each case turns on its

19    facts in order to determine the amount of control exercised, 20      and therefore this is not a proper case for summary judgment 21     on that issue.

22                    Summary judgment has not been claimed on

23    behalf of the plaintiffs against the defendants for the

24    events for which liability is admitted. That is to say

25      events staged by the Convention Centre. Summary judgment

4

1        cannot be issued in regard to the background music, as this

2      argument was not pleaded in the statement of claim.

3                      Finally, summary judgment should not issue in

4      regard to the licensed events as facts are needed to

5        determine the degree of control exercised by the Centre, and

6        those are matters, that is a matter in issue, an issue for

7        trial. What was the relationship between the Centre and its

8        clients? Control is an issue for trial. The issue of the

9      relationship as mentioned and this licensee present a

10       genuine issue for trial. The defendant here was on the

11       scene all the time, and indeed, extracted thirty tickets, or

12       up to thirty tickets, from the licensee. The defendant in

13       making this motion ought to have waited to complete

14       discovery. That discovery should be completed.

15                     All in all, the application appears to be

16       premature and therefore, it suffers from a want of merit in

17       the circumstances, so it is dismissed. Insofar as costs are

18       concerned, we've had some spirited argument on both sides.

19       Each side seems to believe that it is right, and that is

20       something about which this judge cannot speak, because the

21       Court's attention is drawn to an application for a summary

22       judgment. I see what was decided by Mr. Justice McKay in

23       Merck and Company v. Apotex, which is reported at [1998], 78

24       CPR (3rd) 376, but this Court has a different view of the

25       matter. In the Court's view, costs in this matter should be

5

1     costs in the cause, since the cause is still preserved to go

2     ahead, if each side believes itself to be right, if there is

3      no possibility of settlement, no possibility of coming to

4     one's senses about a case of this complexity and this high

5      degree of detail, well, then each side will be vindicated no 6       doubt in the ultimate outcome of the trial. Are there any 7 questions?

8                    MS. GRELL: No, My Lord, thank you.

9                     MR. HACAULT: No, My Lord, just to thank, as

10      counsel always do, for your time and attention.

11                    THE COURT: Well, I have given great

12    attention to this, not only today of course, but in reading

13    the material before today, and in giving directions. It's

14      been interesting, but overlong.

15                    MS. GRELL: My Lord, I'm just, for your 16 interest, we are in the case management, so that will be the 17    next step.

18      THE COURT: I think you should be under case 19      management indeed.

20      MS. GRELL: It was suspended for the purposes 21     of this motion.

22                    THE COURT: Thank you. Court will rise. 23

24                   (ADJOURNED GENERALLY AT 5:45 P.M.)

FEDERAL COURT OF CANADA TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                       T-75-96

STYLE OF CAUSE:                     SOCIETY OF COMPOSERS AUTHORS ET AL v. THE CONVENTION CENTRE CORPORATION

PLACE OF HEARING:                WINNIPEG

DATE OF HEARING:                   AUGUST 12, 1998REASONS FOR ORDER OF MULDOON J. DATED:                                                      AUGUST 12, 1998

APPEARANCES

MS. EMMA GRELL AND                                                       FOR APPLICANTS MS. JANE CLARK

ANTOINE HACAULT                                                            FOR RESPONDENTS

SOLICITORS OF RECORD:

GOWLING, STRATHY & HENDERSON                              FOR APPLICANTS OTTAWA, ONTARIO

THOMPSON DORFMAN SWEATMAN                               FOR RESPONDENTS WINNIPEG, MANITOBA

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.