Entral Group International Inc. et al. v. MCUE Enterprises Corp. et al., 2006 FCA 289

• Judge: Sharlow, J.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: August 30, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FCA 289;(2006), 354 N.R. 29 (FCA)

Entral Group Intl. v. MCUE Ent. (2006), 354 N.R. 29 (FCA)

MLB headnote and full text

Temp. Cite: [2006] N.R. TBEd. SE.005

MCUE Enterprises Corp., d/b/a Di Da Di Karaoke Company, Vitus Wai-Kwan Lee and Yuk Shi (Tom) Lo (appellants) v. Entral Group International Inc. and TC Worldwide Ltd. (respondents)

(A-272-06; 2006 FCA 289)

Indexed As: Entral Group International Inc. et al. v. MCUE Enterprises Corp. et al.

Federal Court of Appeal

Sharlow, J.A.

August 30, 2006.

Summary:

The plaintiffs sued the defendants for breach of copyright. The defendants moved to strike the statement of claim as against two of the defendants.

A Prothonotary of the Federal Court dis­missed the motion. The defendants moved un­der rule 51 for an order to reverse the Prothonotary's decision.

The Federal Court, in a decision reported at [2006] F.T.R. Uned. 849, dismissed the motion. The defendants appealed and moved for a determination of the appeal book. At issue was the inclusion of a letter from the plaintiffs' counsel that contained particulars of an allegation against the two defendants.

The Federal Court of Appeal, per Sharlow, J.A., excluded the letter from the appeal book.

Practice - Topic 9455

Appeals - Factum, case on appeal or ap­peal book - Content of - In a copyright ac­tion, the defendants' motion to strike the claim as against two of the defendants was dis­missed - The defendants' motion to re­verse that decision was dismissed - The defendants appealed and moved for a de­ter­mi­nation of the appeal book - At issue was a letter from the plaintiffs' counsel that contained particulars of an allegation -The plaintiffs argued that the letter was to be treated as a pleading and had to be in­cluded under rule 344(1)(d) - The defen­dants argued that the letter should not be included because it was not part of the record before the judge below - The Fed­eral Court of Appeal, per Sharlow, J.A., excluded the letter - It was not possible to determine whether the judge made any rul­ing regarding the letter, but if he had re­fused to treat it as part of the record, the plaintiffs had not appealed that decision - That was a sufficient basis for exclusion - Further, rule 344(1)(d) did not require a statement of particulars to be included in an appeal book on an appeal of an inter­loc­utory motion if it had never been filed with the court.

Cases Noticed:

Cremco Supply Ltd. et al. v. Canada Pipe Co. et al. (1998), 145 F.T.R. 48 (T.D.), refd to. [para. 4].

West Vancouver (District) v. Canada (Min­ister of Transport) et al., [2005] N.R. Uned. 133; 2005 FCA 281, refd to. [para. 7].

Statutes Noticed:

Federal Court Rules, 1998, rule 344(1)(d) [para. 10].

Counsel:

Lawrence Chan, for the appellants;

Stephen Selznick, for the respondents.

Solicitors of Record:

Paul Smith Intellectual Property Law, Van­cou­ver, British Columbia, for the appel­lants;

Cassels Brock & Blackwell, Toronto, On­tario, for the respondents.

This motion was dealt with in writing with­out appearance of parties by Sharlow, J.A., of the Federal Court of Appeal, who de­livered the following reasons for order on August 30, 2006.