Date: 19981117
Docket: T-17-97
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS and
MUSIC PUBLISHERS OF CANADA,
Plaintiffs,
- and -
NIAGARA HOTEL, BRIAN SALMI and RON TETI,
Defendants.
REASONS FOR ORDER
EVANS. J.
[1] This is a contempt proceeding under Federal Court Rules, 1998, rule 467. The plaintiff obtained from Giles, A.S.P. an ex parte default judgment on June 5, 1997 for an infringement by the defendants of certain of the plaintiff's copyrights. The judgment included a requirement that the defendants produce an affidavit of documents listing all the documents in their possession that are relevant for enabling the plaintiff's damages to be quantified at a reference.
[2] The plaintiff alleges that the defendant Ron Teti has produced some information, namely documentation showing the value of the hotel's liquor sales during the time that the infringements occurred, but has not produced an affidavit of documents as required by Giles, A.S.P.
[3] The defendant Ron Teti appeared in person. He acknowledged that he had been served with notice of this proceeding and understood its purpose. He also admitted that he had not produced an affidavit of documents. His explanation was that he was unable to produce other documents because the financial records of the hotel had been lost or destroyed when the hotel was damaged. Moreover, he said, the hotel is now under new ownership.
[4] Mr. Teti testified that he had asked his bookkeeper to cooperate fully with counsel for the plaintiff in this matter, and had instructed her to produce whatever records she had. However, he also admitted that he had made no independent inquiries of his own to determine whether it was possible to provide computer generated records to replace the hard copies that had been lost or destroyed. Nor had he exercised any supervision over his bookkeeper to ensure that she had made diligent efforts to produce the documents, whether already existing as hard copies or generated from computer data, that were listed in the judgment of Giles, A.S.P.
[5] Before finding Mr. Teti guilty of contempt, I must be satisfied beyond a reasonable doubt that he is in breach of the order of Giles, A.S.P. On the basis of the defendant's testimony, I find that he has failed to produce an affidavit of documents as required. It is no defence for that he advised counsel for the plaintiff that he has produced all the relevant documents in his possession, especially when he has not exercised due diligence to discover what documents or information are available to him.
[6] Accordingly, I find the defendant Ron Teti to be in contempt of the order of this Court in that he has failed to produce the affidavit of documents required in the judgment of Giles, A.S.P. dated June 5, 1997, and impose a fine of $1,000 payable on or before December 1, 1998. This fine reflects the seriousness of disregarding an order of this Court.
[7] The defendant shall be subject to a further fine in the amount of $100 per day, commencing on December 2, 1998, so long as the affidavit of documents ordered by Mr. Giles' judgment of June 5, 1997 is not produced, and that fine shall be paid on the final working day of each calendar month, subject to any further order or judgment of the Court.
[8] Costs are awarded to the plaintiff to be assessed on a solicitor-client basis and are to include a sum for the appearance of in-house counsel for the plaintiff on the ex parte motion to show cause in this matter.
(Sgd.) "John M. Evans"
Judge
Vancouver, British Columbia
November 17, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: November 16, 1998
COURT NO.: T-17-97
STYLE OF CAUSE: SOCIETY OF COMPOSERS, AUTHORS and
MUSIC PUBLISHERS OF CANADA
v.
NIAGARA HOTEL, BRIAN SALMI and
RON TETI
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF EVANS, J.
dated November 17, 1998
APPEARANCES:
Ms. Stella Frame for Plaintiff
Mr. Ron Teti on his own behalf
SOLICITORS OF RECORD:
Stella Frame
Boughton, Peterson, Yang,
Anderson
Vancouver, BC for Plaintiff