Date: 19980428
Docket: T-1515-96
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
- and -
TIMBERLEA INVESTMENTS LTD., carrying on business as
TIMBERLEA BEVERAGE ROOM, and PETER BLACKBURN
Defendants
REASONS FOR ORDER
MacKAY J.:
[1] These Reasons concern penalties imposed upon the defendants for contempt of court by reason of their failure to comply with the Judgment of Peter A.K. Giles, A.S.P., dated December 3, 1997, issued in Toronto upon the plaintiff's ex parte motion and failure to comply with an Order of the Honourable Associate Chief Justice, dated January 26, 1998, that they appear before the Court at Halifax on March 10, 1998 to show cause why they should not be found in contempt.
[2] When the matter came on for hearing in Halifax, as set down, on March 10, 1998 the defendant corporation, incorporated under the laws of Nova Scotia with its principal place of business at Timberlea, N.S., was not represented and the defendant Mr. Peter Blackburn, the sole officer and director of the defendant corporation, was not in attendance and was not represented. The Court is satisfied from the record that both the corporate defendant and Mr. Blackburn were served with the Judgment of Mr. Giles, dated December 3, 1997, and the Order of the Associate Chief Justice dated January 26, 1998.
[3] The Court finds that both defendants are in contempt of Court, by failing to comply with the Judgment of Mr. Giles, in particular to serve and produce documents as required by clause 6 of that Order, and by failing to comply with the Order of Jerome A.C.J. to appear and show cause why they should not be found in contempt of court.
[4] The plaintiff society commenced its action by statement of claim filed June 26, 1996 whereby it alleges breach of copyright to which it is entitled to royalties for any public performance, for which royalties, not paid by the defendants, and damages, are claimed against the defendants. The statement of claim, filed in Toronto, was served on the defendants. No defence was entered and the plaintiff moved ex parte for default judgment, which was granted on December 3, 1997 by Mr. Giles. That Judgment delivered on the plaintiff's ex parte application at the Court in Toronto, inter alia, directed the defendants to produce documents and records upon which damages claimed by the plaintiff might appropriately be based in a reference ordered to be undertaken. I am satisfied that they had notice of the Judgment of Mr. Giles. They did not produce documents and records as directed by paragraph 6 of the Judgment, and indeed, they have continued in their failure to provide those documents up until the hearing in Halifax on March 10, 1998.
[5] When they had failed to comply with the Judgment of Giles, A.S.P. by providing documents within 21 days as ordered, on the plaintiff's application, the Associate Chief Justice ordered, on January 26, 1998 that the defendants appear before the Court at Halifax on March 10, 1998 to show cause why they should not be found in contempt. Both defendants by their failure to appear or be represented as ordered by the Associate Chief Justice, have not merely failed to utilize the opportunity to show cause but, more significantly, they have committed a further contempt of the Court.
[6] At the hearing in Halifax, counsel for the plaintiff society undertook to provide submissions in writing concerning appropriate penalties to be imposed if the defendants be found in contempt. The resulting written submissions have been of assistance to the Court.
[7] The Order now issued includes the following terms1 for the reasons here set out briefly, as follows.
| 1) The defendants are both found in contempt of court for failure to comply with the Judgment of December 3, 1997 made by Mr. Giles and with the Order of the Associate Chief Justice, dated January 26, 1998, as outlined in these Reasons. |
| 2) Each of the defendants is fined $1,000.00 for failure to file and serve the documents and records as ordered by Mr. Giles' Judgment dated December 3, 1997 and those fines are to be paid on or before May 29, 1998. |
| [These fines reflect the Court's concern that its Orders be obeyed, and relate to contempt by failing to comply with the terms of the Judgment and the Order to show cause, and failing to comply with the Judgment up to the date of the hearing on March 10, 1998.] |
| 3) The defendants shall be subject to a further fine, for which they are jointly and severally liable, in the amount of $100.00 per day, commencing on the eighth day after service of the Order so long as the documents ordered by Mr. Giles' Judgment of December 3, 1997 are not served or filed, and that fine shall to be paid on the final working day of each calendar month, subject to any further order of the Court. |
| [Payment of a fine on a per diem basis for each day of continuing failure of the defendants to comply with the Order to produce documents is intended to enforce compliance with that Order.] |
| 4) The Court may review the circumstances of the defendants' failure to comply with previous orders and with that now issued if those terms are not complied with on or before June 15, 1998, and the Court may thereafter issue a bench warrant for the arrest of Peter Blackburn, and may thereafter order incarceration of Peter Blackburn, if that be considered just and appropriate, for continuing flagrant failure to comply with Orders of the Court. |
| [Continuing flagrant failure to comply with the Court's Orders may be found, by the judge then considering the matter, to warrant imprisonment of Peter Blackburn. A Court must ensure that its Orders are complied with and are not simply ignored.] |
Conclusion
[8] For the reasons set out, the plaintiff's motion that the plaintiff be found in contempt was allowed and is now confirmed by written Order. Penalties are imposed upon both the defendants by that Order. The penalties are intended to have the defendants comply with the Order of Mr. Giles to produce documents and records which may provide some basis for calculating damages, which the plaintiff claims pursuant to statute.
W. Andrew MacKay
Judge
OTTAWA, Ontario
April 28, 1998.
__________________1. Somewhat similar penalties, including possible incarceration for continuing failure to comply with the Court's Order or Judgment, may be found in an Order issued in S.O.C.A.N. v. The Bank Cabaret Limited, July 15, 1997, Court file T-1968-95, per Muldoon J.