PRACTICE |
Discovery |
Canadian Private Copying Collective v. Amico Imaging Services Inc.
T-519-03
2004 FC 469, Blais J.
26/3/04
16 pp.
Anton Piller Order Defendant Amico Imaging Services Inc. filed motion to set aside Anton Piller order granted by Lemieux J. on April 30, 2003--Under Copyright Act, s. 88, plaintiff entitled to institute action to recover unpaid levies, to obtain compliance of contravening parties to other obligations set out in Part VIII of Act--Two defendants in action instituted by plaintiff, Amico Imaging Services Inc and Computer Direct Depot Inc.--Anton Piller orders generally granted in context of copyright or trade-mark infringement--Order granted to plaintiff on basis of allegation defendant has not paid levies required by Act-- Object of Anton Piller order to secure preservation of documents relevant to suit which could, if notice given to defendant of impending suit, be destroyed in bid to avoid suit--Extent of Anton Piller order delivered by Lemieux J., to allow inspection of premises of both defendants, seizure of documents relevant to sale of audio recording media, seizure of samples of such media, recording by photography, video camera, other means of blank audio recording media found on premises of defendants--Both defendants consented to execution of order, but defendant Amico reserved right to contest issuance of order--Three conditions to be satisfied before Anton Piller order granted-- First two conditions normally satisfied with establisment of clear proof of title to intellectual property, clear evidence of infringement--Conditions met--Plaintiff arguing that by not obtaining Anton Piller order, it will be deprived of opportunity to make case and recover sums owed to artists, performers, copyright holders --Thus potential damage real-- Just as clear evidence of title, infringement would suffice to establish strong prima facie case, serious damage, clear evidence of right to levies, these not being paid sufficient to meet first two conditions of Anton Piller order--As to third condition, given elaborate deception organized to avoid paying levy owed, there was reason to fear evidence might be destroyed if defendants warned ahead of time plaintiff intended to claim levy; with destruction of evidence, it would be difficult for plaintiff to establish past amounts due--Harm, fear of destruction established--As to whether setting aside order warranted, one must consider all evidence, argument adduced by parties--On this basis, Anton Piller order properly issued--Following facts relevant in coming to conclusion: (1) defendant Amico, by own admission, never paid levy on imported blank audio recording media; (2) Director of sales for Amico knew as early as 2000 levy to be paid; and (3) Mr. Grunbaum and Mr. Frankel informed only in 2002 of levy, yet when found out, neither of them inquired as to what might have to be paid, simply decided not to import CDs so as not to pay levy--No reason to set aside Anton Piller order--Motion dismissed-- Copyright Act, R.S.C., 1985, c. C-42, s. 88 (as enacted by S.C. 1997, c. 24, s. 50).