Canadian Private Copying Collective v. Z.E.I. Media Plus Inc. et al., (2006) 305 F.T.R. 40 (FC)

• Judge: de Montigny, J.
• Court: Federal Court (Canada)
• Case Date: November 23, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 305 F.T.R. 40 (FC);2006 FC 1546

CPCC v. ZEI Media Plus Inc. (2006), 305 F.T.R. 40 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. JA.005

Canadian Private Copying Collective (plaintiff) v. Z.E.I. Media Plus Inc. and Zanin CD/DVD Inc. and Joseph Lemme (defendants)

(T-578-05; 2006 FC 1546)

Indexed As: Canadian Private Copying Collective v. Z.E.I. Media Plus Inc. et al.

Federal Court

de Montigny, J.

December 22, 2006.

Summary:

The plaintiff sued the defendants for failing to report and pay private copying levies. The plaintiff moved to compel service of a complete and accurate affidavit of documents under Federal Court Rule 223. The defendants requested bifurcation of the proceedings (liability and quantum) under rule 107.

A Prothonotary of the Federal Court, in a decision reported at [2006] F.T.R. Uned. 975, allowed the plaintiff's motion and denied the defendants' request. The defendants appealed.

The Federal Court dismissed the appeal.

Courts - Topic 2583

Registrars and prothonotaries - Appeals from - Scope of review (incl. standard of review) - The plaintiff sued the defendants for failing to report and pay private copying levies - The plaintiff moved to compel service of a complete and accurate affidavit of documents under Federal Court Rule 223 - The defendants requested bifurcation of the proceedings (liability and quantum) under Rule 107 - A Prothonotary allowed the plaintiff's motion and denied the defendants' request - The defendants appealed - The Federal Court confirmed that orders of prothonotaries ought not be disturbed unless (a) the questions raised were vital to the final issue of the case, or (b) the orders were clearly wrong, in the sense that the exercise of discretion by the Prothonotary was based upon a wrong principle or upon a misapprehension of the facts - Neither the issue of bifurcation nor the order compelling an affidavit of documents was vital to the case - Consequently, the court could only intervene if the Prothonotary's decision on either issue was clearly wrong - See paragraphs 27 to 36.

Practice - Topic 4648

Discovery - Affidavit or list of documents - Order for further and better affidavit or list - The plaintiff sued the defendants for failing to report and pay private copying levies - The plaintiff moved to compel service of a complete and accurate affidavit of documents under Federal Court Rule 223 - The plaintiff requested (a) all documents relevant to the importation of blank audio recording media into Canada by each of the defendants, such as purchase orders, invoices, shipping documents, customs documents, correspondence with customs brokers, payment journals, etc. from December 1999 to the present or prior to December 1999 for blank audio recording media sold in Canada in or after December 1999; (b) all documents relevant to the purchase of blank audio recording media in Canada by each of the defendants, such as purchase orders, invoices, shipping documents, payments journals, etc., from December 1999 to the present; and (c) documents relevant to the sale of blank audio recording media in Canada by each of the defendants, such as invoices, purchase orders, shipping documents, inventory lists, sales journals, etc., from December 1999 to the present - A Prothonotary allowed the motion - The Federal Court dismissed an appeal - Many of the documents omitted from the defendants' affidavit of documents existed and were in the defendants' possession, power or control and were relevant to the issues - The Prothonotary's decision was not clearly wrong - See paragraphs 56 to 68.

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - The plaintiff sued the defendants for failing to report and pay private copying levies - The defendants requested bifurcation of the proceedings (liability and quantum) under Federal Court Rule 107 - They asserted that under s. 88(1) of the Copyright Act, the plaintiff's right to recovery was based on the fact that levies were due - Pursuant to paragraph 82(1)(a), private copying levies were only due with respect to the importation into Canada and sale therein of blank audio recording media - Blank audio recording media was a defined term at s. 79 - Where the parties disputed the application of the definition of blank audio recording media imported and sold by the defendants, it could not be said that levies were due - Accordingly, a trial respecting liability had to be held before quantum could be determined - A Prothonotary rejected the argument and denied the defendants' request - The Federal Court dismissed an appeal - Section 88(3) left open the possibility for the plaintiff to seek "any other remedy available" - Further, s. 88(3) was clearly of a residuary nature - See paragraphs 37 to 48.

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - The plaintiff sued the defendants for failing to report and pay private copying levies - The defendants requested bifurcation of the proceedings (liability and quantum) under Federal Court Rule 107 - A Prothonotary denied the defendants' request - The defendants appealed, arguing that the Prothonotary wrongly focussed on the timeliness of their argument - The Federal Court dismissed the appeal - The Prothonotary's decision did not rest on the issue of delay - He merely observed that the defendants could have raised the possibility to bifurcate earlier - See paragraphs 49 and 50.

Cases Noticed:

Canadian Private Copying Collective v. Canadian Storage Media Alliance et al., [2005] 2 F.C.R. 654; 329 N.R. 101; 2004 FCA 424, refd to. [para. 4].

Canadian Private Copying Collective v. Cano Tech Inc. (2006), 285 F.T.R. 130; 47 C.P.R.(4th) 350 (F.C.), refd to. [para. 4].

Private Copying 2003-2004, Re, [2003] C.B.D. No. 8, refd to. [para. 4].

Illva Saronno S.p.A. v. Privilegiata fabbrica maraschino Excelsior Girolamo Luxardo S.p.A. et al., [1999] 1 F.C. 146; 157 F.T.R. 217 (T.D.), refd to. [para. 24].

Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425; 149 N.R. 273 (F.C.A.), refd to. [para. 27].

Merck & Co. et al. v. Apotex Inc. (2003), 315 N.R. 175; 30 C.P.R.(4th) 40 (F.C.A.), refd to. [para. 27].

Merck & Co. et al. v. Brantford Chemicals Inc. (2004), 262 F.T.R. 147; 35 C.P.R.(4th) 4 (F.C.), refd to. [para. 31].

Fero Holdings Ltd. v. Blok-Lok Ltd., [2003] F.T.R. Uned. 940; 2003 FCT 353, refd to. [para. 31].

Contour Optik Inc. et al. v. Viva Canada Inc. et al. (2005), 284 F.T.R. 299; 45 C.P.R.(4th) 31 (F.C.), refd to. [para. 33].

AVS Technologies Inc. et al. v. Canadian Mechanical Reproduction Rights Agency et al. (2000), 257 N.R. 283; 7 C.P.R.(4th) 68 (F.C.A.), refd to. [para. 44].

Cooper Industries Inc. v. Caplan Industries Inc., [1998] F.T.R. Uned. 154; 80 C.P.R.(3d) 237 (T.D. Protho.), refd to. [para. 59].

Havana House Cigar & Tobacco Merchants Ltd. et al. v. Naeini et al. (1998), 147 F.T.R. 189; 80 C.P.R.(3d) 132 (T.D. Protho.), affd. (1998), 147 F.T.R. 197; 80 C.P.R.(3d) 563 (T.D.), refd to. [para. 59].

Symtron Systems Inc. v. I.C.S. International Code Fire Services NC., [2001] F.T.R. Uned. 796; 2001 FCT 1226, refd to. [para. 61].

Counsel:

Madeleine Lamothe-Samson, for the plaintiff;

Louis Chronopoulos, for the defendants.

Solicitors of Record:

David Collier/Madeleine L.-Samson, Ogilvy Renault LLP, Montreal, Quebec, for the plaintiff;

Marvin Segal/Louis Chronopoulos, Gross Pinsky, Montreal, Quebec, for the defendants.

This appeal was heard on November 23, 2006, at Montreal, Quebec, by de Montigny, J., of the Federal Court, who delivered the following judgment on December 22, 2006.