PRACTICE
Pleadings
Motion to Strike
Plaintiffs owners in Canada of copyright in Asian‑language films; L. S. Entertainment active plaintiff, wholesale distribu-tor of Asian‑language films in Canada—Plaintiffs alleging defendants, carrying on business of retail video stores, infringing copyright in films—Seeking order striking out statement of defence, granting default judgment on basis defendants failing to comply with three orders of Court—Not possible to say defendants’statement of defence disclosing no reasonable defence—However, defendant Mandy Hui Mei Chen’s (manager of Formosa Video (Canada) Ltd.) failure to re‑attend for examination for discovery breaching order of Court within contemplation of Federal Courts Rules, r. 97, which provides that “[w]here a person fails to attend an oral examination . . . the Court may . . . (d) dismiss the proceeding or give judgment by default”—Medical notes provided to justify failure to attend inadequate—Defendant Chen also failing to attend dispute resolution conference—Although Court’s order fixing date, time, place of dispute resolution conference not directly within contemplation of r. 97, its effect creating analogous situation, tantamount to breach of order to attend oral examination pursuant to r. 4—Authority granted by r. 97(d) discretionary—That discretion exercised in case at bar—Statement of defence struck out—Defendants’ conduct throughout proceedings taken into account—No serious question of law to be argued, default judgment granted as against defendants Formosa and Chen—Proceeding dismissed as against defendant Shun Po Chan as not active in proceeding, plaintiffs not pursuing proceeding against him—Declaration as between plaintiffs and Formosa and Chen issued, permanent injunction issued against Formosa and Chen with respect to films—Plaintiffs electing to recover statutory damages pursuant to Copyright Act, s. 38.1—Factors to be considered by Court in exercising discretion re: award of statutory damages set out in Copyright Act, s. 38.1(5)—Here, defendants acted in bad faith, defendant Chen’s conduct reprehensible, necessary to deter other infringements of copyright in question—Statutory damages claimed ($1000 in respect of each of the 14 seized films in issue) reasonable and thus awarded—Plaintiffs entitled to remedy of delivery up contemplated in Copyright Act, films, back‑up computer records seized on behalf of plaintiffs ordered forfeited to plaintiffs—In light of defendants’ conduct, award of costs above ordinary scale justified—Motion granted—Federal Courts Rules, SOR/98‑106, rr. 1 (as am. by SOR/2004‑283, s. 2), 4, 97—Copyright Act, R.S.C., 1985, c. C‑42, s. 38.1 (as enacted by S.C. 1997, c. 24, s. 20).
L. S. Entertainment Group Inc. v. Formosa Video (Canada) (T‑1795‑01, 2005 FC 1347, Gibson J., declaration, order and judgment dated 30/9/05, 35 pp.)