Canadian Private Copying Collective (CPCC) v. Fuzion Technology Corp. et al., (2009) 349 F.T.R. 303 (FC)

• Judge: Martineau, J.
• Court: Federal Court (Canada)
• Case Date: June 16, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 349 F.T.R. 303 (FC);2009 FC 800

CPCC v. Fuzion Tech. Corp. (2009), 349 F.T.R. 303 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. AU.013

Canadian Private Copying Collective (applicant) v. Fuzion Technology Corp. and 1565385 Ontario Inc. and Mickey Yeung (respondents)

(T-1655-04; 2009 FC 800)

Indexed As: Canadian Private Copying Collective (CPCC) v. Fuzion Technology Corp. et al.

Federal Court

Martineau, J.

August 5, 2009.

Summary:

Fuzion Technology Corp. imported and sold blank discs. The Canadian Private Copying Collective (CPCC) requested an audit of Fuzion's records for the determination of tariff levies payable under the Copyright Act. Before the audit could be completed, Yeung, a director of Fuzion, resigned and incorporated 1563585 Ontario Inc. and registered the business name FTC Computers. Fuzion ceased operations and transferred its stock, including blank discs, on a consignment basis to FTC (the consignment arrangement). CPCC's request to complete its audit of Fuzion by auditing FTC was refused. CPCC applied for an order against Fuzion, FTC and Yeung mandating the audit of Fuzion and FTC and requiring payment of the levies. FTC and Yeung resisted, arguing that FTC was a completely separate corporation from Fuzion.

The Federal Court (von Finckenstein, J.), in a decision reported at (2006), 302 F.T.R. 27, granted an order allowing CPCC to audit FTC and requiring Yeung's absolute cooperation. Without the debt being established, the request for an order for payment was premature. The court remained seized of that matter and would hear a new application if necessary. FTC and Yeung appealed.

The Federal Court of Appeal, in a decision reported (2007), 371 N.R. 33, dismissed the appeal. Subsequently, the CPCC alleged that Yeung was in contempt for not following the order of von Finckenstein, J., within 30 days (in particular for failing to produce the business, accounting and financial records of Fuzion Technology Corp. and FTC for the time period before the consignment arrangement). A prothonotary issued an ex parte order requiring Yeung to appear before the court to answer to the charge of contempt.

The Federal Court dismissed the motion, holding that Yeung was not guilty of civil contempt.

Contempt - Topic 42

General - Elements of contempt - Mens rea - Rule 466(b) of the Federal Court Rules provided that a person was guilty of contempt who disobeyed a court order - Rule 472(a) allowed a judge to imprison a person found guilty of contempt - The Federal Court opined that rule 466(b) had to be read in conjunction with rule 472 - Since imprisonment could be imposed for disobeying a court order, rule 466(b) did not create some kind of absolute liability offence where mens rea was not a required element - Otherwise, rules 466(b) and 472 could be the subject of a challenge under the Charter - The court thereafter discussed the requisite mens rea for a finding of civil contempt under rule 466 - See paragraphs 50 to 74.

Contempt - Topic 505

What constitutes contempt - General principles - Civil contempt - The Federal Court discussed generally the principles to be applied in finding someone guilty of civil contempt for failure to obey a court order - See paragraphs 50 to 74.

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of or non-compliance with - Fuzion Technology Corp. imported and sold blank discs - The Canadian Private Copying Collective (CPCC) requested an audit of Fuzion's records - Before the audit could be completed, Yeung, minority owner of Fuzion, resigned, incorporated 1563585 Ontario Inc. and registered the business name FTC Computers - Fuzion ceased operations and transferred its stock, including blank discs, on a consignment basis to FTC - CPCC applied for an order against Fuzion, FTC and Yeung mandating the audit of Fuzion and FTC - The Federal Court (von Finckenstein, J.) granted an order allowing CPCC to audit FTC and requiring Yeung's absolute cooperation - The order was affirmed on appeal - Subsequently, the CPCC alleged that Yeung was in contempt of von Finckenstein's order for failing to produce the business, accounting and financial records of Fuzion - Contempt proceedings ensued - The Federal Court held that Yeung was not guilty of civil contempt - There was no wilful or deliberate breach - His non-compliance was not deliberate or intentional - He did not have actual control or possession of Fuzion's records - His defence of due diligence and impossibility to comply was accepted in the circumstances - He had tried to comply with the order - There was no wilful blindness - See paragraphs 7 to 86.

Contempt - Topic 5115

Practice - Hearing - Costs - Yeung was cited for civil contempt for failing to comply with a court order - The contempt motion was dismissed and Yeung's counsel argued that this would be an appropriate case to allow his client a lump sum in lieu of assessed costs, based on the bill of costs submitted by him, where costs and disbursements totaled $25,685.41 (inclusive of all taxes) - The Federal Court awarded Yeung a lump sum of $15,000 - See paragraphs 87 to 103.

Cases Noticed:

Poje v. British Columbia (Attorney General), [1953] 1 S.C.R. 516, refd to. [para. 50].

Vidéotron ltée et Premier Choix: TVEC Inc. v. Industries Microlec produits éléctroniques Inc. et autres, [1992] 2 S.C.R. 1065; 141 N.R. 281; 50 Q.A.C. 161, refd to. [para. 54].

Frank v. Bottle et al. (1994), 74 F.T.R. 251 (T.D.), refd to. [para. 55].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 57].

Lyons Partnership, L.P. v. MacGregor (2000), 186 F.T.R. 241; 5 C.P.R.(4th) 157 (T.D.), refd to. [para. 58].

Syndicat des travailleurs d'Olympia (CSN) v. Olymel, s.e.c., [2009] J.Q. no. 1142 (Sup. Ct.), refd to. [para. 59].

Syndicat canadien de la fonction publique, section locale 301 v. Montréal (Ville), [1997] 1 S.C.R. 793; 210 N.R. 101, refd to. [para. 59].

Daigle v. St. Gabriel de Brandon (Corporation municipale), [1991] R.D.J. 249 (Que. C.A.), refd to. [para. 59].

Rocques v. Sans, J.E. 2004-790 (Que. C.A.), refd to. [para. 59].

Anthes et al. v. Wilson Estate (2005), 197 O.A.C. 110 (C.A.), refd to. [para. 59].

Chaudhry v. Canada, [2008] N.R. Uned. 51; 2008 FCA 173, refd to. [para. 60].

Imperial Chemical Industries plc et al. v. Apotex Inc. (1989), 26 F.T.R. 47; 24 C.P.R.(3d) 176 (T.D.), refd to. [para. 60].

Mennes v. Warkworth Institution - see Mennes v. Correctional Service of Canada et al.

Mennes v. Corectional Service of Canada et al., [2001] F.T.R. Uned. 348; 2001 FCT 571, refd to. [para. 62].

Church of Scientology of Toronto v. Cooper, [1984] O.J. No. 1400 (H.C.), refd to. [para. 63].

Minister of National Revenue v. Iwaschuk et al. (2004), 266 F.T.R. 17; 2004 FC 1602, refd to. [para. 63].

Brilliant Trading Inc. v. Wong et al., [2005] F.T.R. Uned. A69; 2005 FC 1214, refd to. [para. 63].

Bell ExpressVu Limited Partnership v. Torroni et al. (2009), 246 O.A.C. 212; 2009 ONCA 85, refd to. [para. 64].

Hobbs v. Hobbs (2008), 240 O.A.C. 202; 54 R.F.L.(6th) 1 (C.A.), refd to. [para. 64].

Prescott-Russell Services for Children and Adults v. N.G. - see Services aux enfants adultes de Prescott-Russell v. N.G. et al.

Services aux enfants adultes de Prescott-Russell v. N.G. et al. (2006), 214 O.A.C. 146; 82 O.R.(3d) 686 (C.A.), refd to. [para. 64].

LifeGear Inc. et al. v. Urus Industrial Corp., [2004] F.T.R. Uned. 340; 2004 FC 21, refd to. [para. 65].

Merck & Co. et al. v. Apotex Inc. (2003), 305 N.R. 68; 25 C.P.R.(4th) 289; 2003 FCA 234, refd to. [para. 65].

Telus Mobility v. Telecommunications Workers Union (2002), 220 F.T.R. 291; 2002 FCT 656, refd to. [para. 65].

United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; 135 N.R. 321; 125 A.R. 241; 14 W.A.C. 241, refd to. [para. 66].

Sherman v. Canada Customs and Revenue Agency (2006), 299 F.T.R. 313; 2006 FC 1121, refd to. [para. 67].

Morrow, Power v. Newfoundland Telephone Co. et al. (1994), 121 Nfld. & P.E.I.R. 334; 377 A.P.R. 334 (Nfld. C.A.), refd to. [para. 68].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 72].

Canada Metal Co. v. Canada Broadcasting Corp. (No. 2) (1974), 4 O.R.(2d) 585 (H.C.), refd to. [para. 72].

Nemo Foods Ltd. v. Remi Rivet Fast Foods Ltd. et al. (1982), 64 C.P.R.(2d) 125 (Ont. H.C.), refd to. [para. 74].

R. v. Roussel et al. (1989), 54 C.C.C.(3d) 203 (Que. Sup. Ct.), refd to. [para. 74].

Kun Shoulder Rest Inc. v. Kun (Joseph) Violin and Bow Maker Inc. et al., [1997] F.T.R. Uned. 78; 74 C.P.R.(3d) 487 (T.D.), refd to. [para. 74].

Capital Regional District v. Sooke River Hotel Ltd. et al., [2001] B.C.T.C. 1373; 2001 BCSC 1373, refd to. [para. 74].

TG Industries Ltd. v. Williams et al. (2001), 196 N.S.R.(2d) 35; 613 A.P.R. 35; 2001 NSCA 105, refd to. [para. 74].

Silver Rill Corn Ltd. et al. v. Island View Golf Centre Ltd., [2007] B.C.T.C. Uned. D44; 2007 BCSC 865, refd to. [para. 74].

Dimplex North America Ltd. v. CFM Corp. (2006), 307 F.T.R. 153; 2006 FC 1403, refd to. [para. 88].

Pro Swing Inc. v. Elta Golf Inc. (2006), 354 N.R. 201; 218 O.A.C. 339 (S.C.C.), refd to. [para. 100].

Statutes Noticed:

Federal Court Rules, 1998, rule 466(b) [para. 52]; rule 472 [para. 55].

Counsel:

Madeleine Lamothe-Samson, for the applicant;

Igor Ellyn, for the respondent.

Solicitors of Record:

Ogilvy Renault, LLP, Montreal, Quebec, for the applicant;

Ellyn Law, LLP, Toronto, Ontario, for the respondents.

This motion was heard in Toronto, Ontario, on June 16, 2009, by Martineau, J., of the Federal Court, who delivered the following decision on August 5, 2009.