Hertzog v. Highwire Information Inc.
T-1753-95
Hargrave P.
20/6/97
14 pp.
Reference to provide plaintiff with accounting, award of profits, damages, costs to establish rate of pre-, post- judgment interest-Plaintiff co-authoring guide to using internet-Publication of guides producing royalty revenue of $49,966.01-Plaintiff neither paid for work, nor giving permission to anyone to publish it-After filing defence, defendants ignoring proceedings-Plaintiff obtaining default judgment-As reference arising out of infringement, plaintiff may have damages, discretionary award of profits arising from infringement, exemplary or punitive damages in appropriate circumstances-(1) Re: loss of profit, plaintiff need only prove revenue received; onus shifting to defendant to prove expenditures-Where judgment debtor not providing records, Court must make best estimate-Defendants neither explaining costs nor producing records to show proper deductions from profits-Recommending plaintiff receive all profits to date-May be more than would have received had defendants participated, but plaintiff should not to be penalized because of defendants' failure to participate-(2) Recommending $7,000 as non-pecuniary damages for inconvenience, stress, cost of pursuing litigation beyond that recoverable as taxed costs-(3) Punitive damages awarded where defendant's actions high handed or contemptuous, so as to both punish defendant for wrongdoing and to make example of him to deter others-Defendants' conduct generally reprehensible-Sold right to publish guides, collected royalties, without either plaintiff's permission or without making some substantial offer-Also having substantial portion of royalties paid into own holding company-Recommending $10,000 exemplary damages-(4) Defendants' actions depriving plaintiff of use of his money-Order resulting in reference unliquidated claim-Interest therefore running pursuant to Federal Court Act, s. 36(2)(b) from date of notice in writing of claim-As demand letter sent February 28, 1995 interest running from that date to date of default judgment-Pre-judgment interest of 9% on royalties paid to defendants recommended-Post-judgment interest of bank prime plus one percent (plaintiff's borrowing rate from bankers) on royalties paid to defendants recommended-Costs and disbursements of $3,037.80 recommended-Federal Court Act, R.S.C., 1985, c. F-7, s. 36(2)(b) (as am. by S.C. 1990, c. 8, s. 9).