BMG Music Canada Inc. et al. v. Vogiatzakis et al., (1996) 110 F.T.R. 34 (TD)

• Court: Federal Court (Canada)
• Case Date: February 14, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 110 F.T.R. 34 (TD)

BMG Music Can. Inc. v. Vogiatzakis (1996), 110 F.T.R. 34 (TD)

MLB headnote and full text

BMG Music Canada Inc.; EMI Music Canada, a Division of TEMI Canada Inc.; MCA Records Canada, a Division of MCA Canada Limited; Polygram Group Canada Inc.; and Sony Music Entertainment (Canada) Inc. (plaintiffs) v. Michael Vogiatzakis carrying on business as "Roadshow Sound & Lite"; Michael Vogiatzakis carrying on business as "Midnight Sound"; Michael Vogiatzakis and Kyriakos Vogiatzakis, carrying on business as "AAA Sonic Sound & Lite"; the said "Roadshow Sound & Lite"; the said "Midnight Sound"; and the said "AAA Sonic Sound & Lite" (defendants)

(T-2585-95)

Indexed As: BMG Music Canada Inc. et al. v. Vogiatzakis et al.

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

February 20, 1996.

Summary:

The plaintiff applied to strike out various paragraphs of the defence and counterclaim, or alternatively, to require particulars of the allegations and material facts in support of the defence and counterclaim.

A Prothonotary of the Federal Court of Canada, Trial Division, allowed the application in part.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - BMG et al. held copyright in various pieces of music - BMG sued Vogiatzakis et al. for infringement - Vogiatzakis claimed an implied licence - However, s. 13(4) of the Copyright Act stated that only a licence in writing was valid - Vogiatzakis claimed BMG breached an implied term of past licences that it would uniformly enforce the licensing of other people in the disc jockey industry - Vogiatzakis claimed conspiracy and unlawful interference - BMG applied to strike out parts of the defence and counterclaim because of failure to disclose a reasonable cause of action in the context of the defence (i.e., no licence in writing) - A Prothonotary of the Federal Court of Canada, Trial Division, declined to strike the portions based on the implied licence - See paragraphs 10 to 14.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - BMG et al. held copyright in various pieces of music - BMG sued Vogiatzakis et al. for infringement - Vogiatzakis claimed an implied licence - Vogiatzakis claimed BMG breached an implied term of past licences that it would uniformly enforce the licensing of other people in the disc jockey industry - BMG applied to strike out parts of the defence and counterclaim because in previous written contracts, Vogiatzakis attorned to the courts of the Province of Ontario, so far as all claims that arose from those contracts - A Prothonotary of the Federal Court of Canada, Trial Division, declined to strike stating that "the court has a residual jurisdiction to hear a matter despite what the parties may think is in an agreement" - See paragraph 15.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - BMG et al. held copyright in various pieces of music - BMG sued Vogiatzakis et al. for infringement - Vogiatzakis claimed an implied licence - Vogiatzakis also claimed that it offered to enter into a licence with AVLA but BMG refused - That forced Vogiatzakis to acquire its sound recordings from a more expensive source - BMG applied to strike out parts of the defence and counterclaim because of failure to disclose a reasonable defence - Vogiatzakis submitted that its offer to enter into a licence with AVLA (i.e., to pay royalties) provided a defence under s. 67.2(3) of the Copyright Act - A Prothonotary of the Federal Court of Canada, Trial Division, declined to strike - See paragraphs 16 and 17.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - BMG et al. held copyright in various pieces of music - BMG sued Vogiatzakis et al. for infringement - Vogiatzakis claimed an implied licence - Vogiatzakis claimed BMG breached an implied term of past licences that it would uniformly enforce the licensing of other people in the disc jockey industry - Vogiatzakis claimed conspiracy and unlawful interference - BMG applied to strike out parts of the defence and counterclaim on the ground that many of the allegations in the defence and counterclaim sought a tort remedy which should be pursued in a provincial court - Vogiatzakis claimed entitlement to civil damages under s. 45 of the Competition Act - A Prothonotary of the Federal Court of Canada, Trial Division, declined to strike and granted Vogiatzakis leave to amend to plead the Competition Act - See paragraphs 18 to 22.

Practice - Topic 2239.2

Pleadings - Striking out pleadings - Grounds - Action prescribed or barred by limitation period - BMG et al. held copyright in various pieces of music - BMG sued Vogiatzakis et al. for infringement - Vogiatzakis claimed an implied licence as well as conspiracy and unlawful interference - BMG applied to strike out parts of the defence and counterclaim on the ground that many of the allegations in the defence and counterclaim sought a tort remedy which should be pursued in a provincial court - Vogiatzakis claimed entitlement to civil damages pursuant to s. 45 of the Competition Act - BMG submitted that any claim was barred by the Competition Act's limitation period - A Prothonotary of the Federal Court of Canada, Trial Division, declined to strike on the basis of the limitation period - See paragraphs 22 to 24.

Practice - Topic 2243

Pleadings - Striking out pleadings - Bars - General - BMG et al. held copyright in various pieces of music - BMG sued Vogiatzakis et al. for infringement - Vogiatzakis claimed an implied licence - Vogiatzakis claimed BMG breached an implied term of past licences that it would uniformly enforce the licensing of other people in the disc jockey industry - Vogiatzakis claimed conspiracy and unlawful interference and in the result sought set off in its defence and damages in its counterclaim - BMG applied to strike out parts of the defence and counterclaim - Vogiatzakis submitted that BMG, having pleaded to the defence and counterclaim, was barred by rule 419 from moving to strike - A Prothonotary of the Federal Court of Canada, Trial Division, considered the application to strike only on the basis of whether the impugned portions disclosed a reasonable cause of action - See paragraphs 6 to 9.

Cases Noticed:

Procter & Gamble Co. v. Nabisco Brands Ltd. (1985), 62 N.R. 364; 5 C.P.R.(3d) 417 (F.C.A.), consd. [para. 8].

Montreuil v. R., [1976] 1 F.C. 528 (T.D.), refd to. [para. 8].

Mayflower Transit Ltd. v. Marine Atlantic Inc. et al. (1989), 29 F.T.R. 30 (T.D.), consd. [para. 8].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R.(3d) 1, refd to. [para. 12].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 13 C.R.R. 287; 18 D.L.R.(4th) 481; 12 Admin. L.R. 16, refd to. [para. 12].

McMillan v. Canada (1996), 108 F.T.R. 32 (T.D.), consd. [para. 12].

Cselko Associates Inc. v. Zeller's Inc. (1992), 44 C.P.R.(3d) 56 (Ont. Gen. Div.), refd to. [para. 13].

Consumers' Gas Co. v. Minister of National Revenue, [1984] 1 F.C. 779; 52 N.R. 106 (F.C.A.), consd. [para. 18].

Littler v. Minister of National Revenue, [1978] C.T.C. 235; 20 N.R. 541 (F.C.A.), consd. [para. 18].

Transworld Shipping Ltd. v. R. (1975), 12 N.R. 129; 61 D.L.R.(3d) 304 (F.C.A.), consd. [para. 18].

Pollakis v. Corner (1975), 9 O.R.(2d) 691 (H.C.), consd. [para. 24].

Milliken & Co. v. Interface Flooring Systems (Canada) Inc. (1993), 71 F.T.R. 227 (T.D.), consd. [para. 24].

Kibale v. Canada (1990), 123 N.R. 153 (F.C.A.), consd. [para. 24].

Statutes Noticed:

Competition Act, R.S.C. 1985, c. C-34, sect. 36(4)(a) [para. 22]; sect. 45 [para. 19].

Copyright Act, R.S.C. 1985, c. C-42, sect. 13(4) [para. 11]; sect. 67.2(3) [para. 17].

Federal Court Rules, rule 413(3), rule 415 [para. 4]; rule 419(1)(a), rule 419(1)(b), rule 419(1)(c), rule 419(1)(d), rule 419(1)(f) [para. 7].

Authors and Works Noticed:

Fox, Harold G., The Canadian Law of Copyright (2nd Ed. 1967), generally [para. 13].

Counsel:

Raymond Hall, for the plaintiffs;

Chris P. Besko, for the defendants.

Solicitors of Record:

Raymond Hall, Winnipeg, Manitoba, for the plaintiffs;

Pitblado & Hoskin, Winnipeg, Manitoba, for the defendants.

This application was heard on February 14, 1996, at Winnipeg, Manitoba, before Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following judgment on February 20, 1996.