MCA Canada Ltd., Leeds Music Limited and
The Robert Stigwood Group Limited (Plaintiffs)
v.
Robert Simpson Productions, Foster Hewitt
Broadcasting Limited, Two Star Productions,
Mavin Holdings, Al Hinkle, Masonic Temple
Corporation Limited and David Mann (Defend-
ants)
Trial Division, Heald J.—Toronto, November
18; Ottawa, November 19, 1971.
Practice—Service of process—Defendant a corporation—
Service on comptroller—Insufficiency of—Rule 309(2).
In an application for an interlocutory injunction against
several defendants in Toronto to prevent an advertised
theatrical performance, service of the notice of motion on
an incorporated defendant was made on a person described
in the affidavit of service as its comptroller.
Held, dismissing the motion as against such defendant,
plaintiffs had not shown that service on a corporation's
comptroller was within the Federal Court Rules governing
service on corporations (R. 309(2)), nor had the evidence
shown such an urgency as to justify an ex parte injunction.
MOTION for interlocutory injunction.
R. T. Hughes for plaintiffs.
W. M. Gordon, Q.C. for defendants.
HEALD J.—The plaintiffs are applying for an
order granting an interlocutory injunction
restraining the defendant, Foster Hewitt Broad
casting Limited, its officers, directors, servants,
agents and employees from:
(i) performing the rock opera Jesus Christ
Superstar;
(ii) performing a substantial portion of the
rock opera Jesus Christ Superstar;
(iii) performing any more than two songs
from the rock opera Jesus Christ Superstar
at any one performance; and
(iv) advertising any of the performances
stipulated in paragraphs (i), (ii) or (iii) under
or in association with the words Jesus
Christ Superstar.
At the hearing, counsel for the plaintiffs
indicated that he wished to proceed on this
motion only against the defendant Foster
Hewitt Broadcasting Limited. Said defendant
was allegedly served with certified copies of the
notice of motion, the statement of claim, the
affidavits of William T. B. Bird and Allan All-
butt on November 16, 1971 by personally serv
ing Mr. Douglas Longstaff, the comptroller of
said defendant, a corporation duly incorporated
under the laws of the Province of Ontario, and
having its head office at l Grenville Street in
the Municipality of Metropolitan Toronto.
The affidavit of Donald Lewis Marston, a
student-at-law, who served Mr. Douglas Long-
staff, deposes that service was effected on
November 15, 1971. However, at the hearing,
counsel for the plaintiffs acknowledged that
there was a typographical error in the said
affidavit, and that in fact, service was effected
on Mr. Douglas Longstaff on November 16,
1971. I gave leave to the plaintiffs at the hear
ing to file a supplementary affidavit correcting
the date of service on Mr. Douglas Longstaff to
accord with the facts.
Federal Court Rule 321(2) provides:
RULE 321. (2) Unless the Court gives special leave to
the contrary, there must be at least 2 clear days between the
service of a notice of motion and the day named in the
notice for hearing the motion.
The returnable date in the notice of motion is
November 18, 1971 and the hearing was held
before me in Toronto on that date. The alleged
service on the defendant Foster Hewitt Broad
casting Limited was effected on November 16,
1971. Such service did not provide two clear
days' notice and thus Rule 321(2) is not com
plied with. However, counsel for the plaintiffs
asked that I "give special leave to the contrary"
as provided for in Rule 321(2). At the hearing
on November 18, 1971 before me, no one
appeared on behalf of the defendant Foster
Hewitt Broadcasting Limited.
The evidence before me establishes that the
performances in question were to commence on
November 10, 1971 at the Masonic Auditorium,
888 Yonge Street, Toronto and were to be
performed nightly at that location for the period
November 10, 1971 to November 30, 1971
inclusive, and that there were some plans to
move to the Playhouse on Bayview Avenue,
Toronto, for a long run. The defendant, Foster
Hewitt Broadcasting Limited, is involved
because of the circulation of a brochure affixed
as Ex. 9 to the affidavit of William T. B. Bird
which stated that at least one of the said perfor
mances at the Masonic Auditorium was being
presented in association with said defendant.
There is also evidence before me that the
defendant Foster Hewitt Broadcasting Limited
operates a radio station and otherwise carries
on business in and about the Municipality of
Metropolitan Toronto under the trade name
1430 CKFH.
Said defendant is further involved by the
circulation of another informational bulletin, a
copy of which is Ex. 10 to William T. B. Bird's
affidavit. This bulletin is dated November 8,
1971 and states:
CKFH IN ASSOCIATION WITH ROBERT SIMPSON
PRODUCTIONS PRESENT THE CANADIAN LIVE
THEATRE PREMIERE .. .
of the performance in question on November
10, 1971 at the Masonic Auditorium.
There was also evidence before me that at
least one performance was held, namely, the
premiere performance on November 10, 1971.
Mr. Allan Allbutt, the general professional
manager of the Music Division of MCA Canada
Ltd., one of the plaintiffs herein, attended said
performance at the Masonic Auditorium which
lasted approximately one hour and thirty-five
minutes—the Auditorium has a capacity of
approximately 750 people and it was almost
full.
Because the defendant Foster Hewitt Broad
casting Limited was involved in at least the
premiere performance, I felt that the plaintiffs
should have an opportunity to present their case
against that defendant and accordingly I exer
cised the discretion given to me under Rule
321(2) and gave leave to the plaintiffs to short
en the period of service on said defendant from
two clear days to one clear day.
Unfortunately, however, plaintiffs have
another procedural problem.
Federal Court Rule 309(2) deals with the
manner in which documents are to be served on
corporations. Rule 309(2)(b)(i) provides for ser
vice on:
... the president, manager, or other head officer, the trea
surer, the secretary, the assistant treasurer, the assistant
secretary, any vice-president, or any person employed by
the corporation in a legal capacity, .. .
The affidavit of service by Donald Lewis
Marston, student-at-law, is to the effect that
service was on Mr. Douglas Longstaff "who is
in the capacity of comptroller with said corpo
rate defendant". There is no evidence before
me on which I could possibly conclude that said
Douglas Longstaff is one of the persons cov
ered by Rule 309(2)(b)(i).
Nor does Rule 309(2)(b)(ii) assist the plain
tiffs. This Rule is an alternative to Rule
309(2)(b)(i) and permits service on:
. the person apparently in charge, at the time of the
service, of the head office or of the branch or agency in
Canada where the service is effected, .. .
There is nothing in Mr. Donald Marston's
affidavit of service or anywhere else in the
evidence before me from which I could sensibly
infer or assume that said Douglas Longstaff
was "the person apparently in charge at the
time of the service".
Rule 309(2)(c) permits a further alternative
service on:
... any person discharging duties for the particular corpora
tion comparable to those of an officer falling within sub-
paragraph (a) or (b)(i),
There is no evidence before me as to what
Douglas Longstaff's duties are with the defend
ant corporation other than that he is described
as comptroller. I therefore hold that Rule
309(2)(c) does not permit service on Douglas
Longstaff.
Rule 309(2) provides still other possibilities
for service:
... or by such other method as may be provided by statute
for the particular case or as is provided for service of a
document on a corporation for the purposes of a superior
court in the province where the service is being effected.
Accordingly, I have considered the Rules of
Practice of the Supreme Court of Ontario to see
whether the service herein would be permitted
thereunder. The applicable Rule is Rule 23 and
permits service on:
23. (1) ... the mayor, warden, reeve, president, or other
head officer, or on the township, town, city or county clerk,
or on the cashier, treasurer or secretary, clerk or agent of
such corporation ...
The service here does not come within any of
the said permitted services.
In the Shorter Oxford English Dictionary, 3rd
ed., "Comptroller" is described as "an errone
ous spelling of CONTROLLER". In said diction
ary, "Controller" is defined as:
Controller-1. One who keeps a counter-roll so as to
check a treasurer or person in charge of accounts.
In Earl Jowitt's Dictionary of English Law,
"Controller" is defined as:
Controller— ... an overseer or officer appointed to
examine and verify the accounts of other officers.
All parties to a proceeding are entitled to rely
on the Rules of Court and it may well be that
the service on the comptroller, Douglas Long-
staff, was not brought to the attention of those
officials in the defendant corporation who have
the authority and responsibility to make deci
sions on legal matters of this kind.
Or, alternatively, if such service were brought
to their attention, they may have decided that
such a service was not a proper service and to
rely on the Rules covering permitted services.
In any event, the defendant corporation did
not appear in the proceedings before me.
I therefore find that the service of the notice
of motion and supporting affidavits on Douglas
Longstaff on November 16, 1971 was not ser
vice on the defendant corporation Foster
Hewitt Broadcasting Limited.
The Court has power to order an interlocuto
ry injunction under Rule 469(2) ex parte "in
case of urgency".
The learned Chief Justice of this Court at
page 61 of A Manual of Practice—The Federal
Court of Canada expresses the following opin
ion on this matter:
... Such an application for an ex parte order may only be
made in case of urgency (Rule 469(2)) and it is a rare case
within the jurisdiction of the Federal Court that involves
urgency of the type that warrants an order being made
against a party without his having an opportunity to be
heard.
I agree with the said stated opinion of the
learned Chief Justice. I expressed the view ear
lier that I was prepared to shorten the time for
service in this case. However, I do not consider
that the evidence establishes such a degree of
urgency as to justify me in proceeding ex parte.
Having thus decided, it is unnecessary to
consider the substantive portion of plaintiffs'
case. However, there is another facet of plain
tiffs' case against the defendant Foster Hewitt
Broadcasting Limited that concerns me. That
has to do with the limited proof against this
particular defendant. That proof is contained in
Ex. 9 and 10 to the affidavit of William T. B.
Bird. Exhibit 9 is a multi-color brochure pur
porting to advertise the performances of Jesus
Christ Superstar to be performed at the Mason
ic Auditorium, Toronto, from November 10
through November 30. On the face of this bro
chure, there is no reference in any way to the
defendant Foster Hewitt Broadcasting Limited.
However, superimposed on the said brochure is
a self-pasting paper strip approximately 6
inches in length and 11 inches in width on
which are the words:
IN ASSOCIATION WITH 1430 CKFH PRESENTS THE
CANADIAN LIVE THEATRE PREMIERE WEDNES-
DAY, NOVEMBER 10TH, 9 P.M.
I am of the view that Ex. 9 is open to the
interpretation that radio station CKFH 1430
was involved only in the premiere performance
on Wednesday, November 10.
This interpretation is re-enforced by a consid
eration of Ex. 10 which is an informational
bulletin circulated by CKFH. This bulletin is
dated Monday, November 8, 1971 and com
mences as follows:
CKFH IN ASSOCIATION WITH ROBERT SIMPSON
PRODUCTIONS PRESENT THE CANADIAN LIVE
THEATRE PREMIERE OF "SELECTIONS OF JESUS
CHRIST SUPERSTAR"
The bulletin then goes on to describe the open
ing night ceremonies planned for the November
10 performance. All of the information con
tained in the bulletin is confined to the premiere
on November 10. The only evidence before me
of any performance taking place was the
November 10 premiere and the only evidence
of involvement of the defendant Foster Hewitt
Broadcasting Limited is restricted to the pre
miere on November 10.
There was absolutely no evidence before me
on which I could possibly conclude that the
defendant Foster Hewitt Broadcasting Limited
or radio station CKFH was in any way involved
in performances after the November 10
premiere.
Additionally, the evidence adduced does not
convince me that damages would not be suffi
cient compensation in the event of plaintiffs'
success at trial.
I therefore deny the motion for injunction.
There will be no order as to costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.