Society of Composers, Authors and Music Publishers of Canada v. Landmark Cinemas of Canada Ltd.
T-633-92
Noël J.
13/11/92
11 pp.
Action for copyright infringement alleging defendants permitting public performance of musical works forming part of plaintiff's repertoire without licence -- Plaintiff moving to strike out certain paragraphs of statement of defence and for particulars -- Particulars provided properly respond to plaintiff's motion -- Defendant pleading authorized to present musical performances by motion picture distributors and producers -- Providing names of distributors and producers and indicating authorization obtained when licence to show relevant motion pictures granted -- Fact defendant unaware of legal source of rights of distributors and producers not rendering particulars insufficient -- Particulars also indicating amount of fees paid for acquisition of rights allegedly conveyed to defendant encompassed in purchase price of licence to display motion picture to public, and easily ascertained at discovery or at trial -- As to motion to strike, defendant pleading estoppel against plaintiff, producers and distributors -- If defendant can establish allegations distributors and producers had right to authorize performance of musical works, plea of estoppel against them would disclose reasonable defence -- Plea allowed to stand -- Defence of estoppel raised against plaintiff based on acquiescence of plaintiff and predecessors since 1972 -- Plaintiff submitting actions of predecessors cannot bind it -- As nothing before Court allowing any conclusion in that regard, plea also stands -- Defendant alleging s. 67.2 of Copyright Act violating Charter, ss. 2(b), 15 -- Material facts upon which plaintiff intending to rely pleaded -- Attack aimed at part of legislative scheme authorizing Copyright Board to determine royalties plaintiff permitted to collect for performance of works by parties -- Not clear and obvious Charter attack cannot succeed -- Defendant pleading Copyright Board's legislative authority to determine royalties in pith and substance law respecting property and civil rights and not ancillary to powers of Parliament to pass laws respecting copyright -- Directly opposite to long-established case law holding Board's power to fix licence fees not matter of contract, but of statutory fixation ancillary to Parliament's jurisdiction with respect to copyright under Constitution Act, 1867, s. 91(23) -- Attack not based on changed circumstances, evolving factual context, or novel aspect of jurisdictional relevance -- Plea not disclosing reasonable defence -- Clear and obvious cannot succeed and should be struck out -- Defendant alleging quantum of royalties certified by Copyright Board constituting restraint of trade, used to enhance price, and contrary to Competition Act, s. 32 -- Alleging establishment of royalties by Copyright Board constituting illegal price fixing and unfair and monopolistic trade practice injurious to Canadian public -- Competition Act, s. 32 not applicable -- Activities of plaintiff and Board within framework of Copyright Act, s. 67 expressly sanctioned by federal legislation and exempt from operation of s. 32 under "regulated industry defence" -- Board's fee setting activities within legislative mandate and deemed to be in public interest -- Plea struck out -- Defendant moved on short notice for order all future interlocutory motions be held in Edmonton where resides -- Arguing bringing interlocutory motions in Ottawa where plaintiff's solicitors reside, working injustice, oppressive and vexatious to defendant -- Motion not heard on short notice but Court noting litigant's ability to file motion in Registry of choice must not be abused -- No Rule permitting party to bring motions in city of choice without regard to convenience of other party -- In matters involving protracted pre-trial motions, parties must share inconvenience regardless of who initiates motions and counsel expected to ensure result -- Copyright Act, R.S.C., 1985, c. C-42, ss. 67 (as am. by R.S.C., 1985 (4th Supp.), c. 10, s. 12), 67.2 (as enacted idem) -- Competition Act, R.S.C., 1985, c. C-34 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 18), s. 32 (as am. by S.C. 1990, c. 37, s. 29) -- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 2(b), 15 -- Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 91(23).