Czarnogorski v. Society of Composers, Authors, and Music Publishers Canada

Czarnogorski v. Society of Composers, Authors, and Music Publishers Canada
Court (s) Database
Federal Court of Appeal Decisions
Date
2007-10-03
Neutral citation
2007 FCA 316
File numbers
A-227-05
Decision Content
Date: 20071003
Docket: A-227-05
Citation: 2007 FCA 316
CORAM: NADON J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
ANDREW CZARNOGORSKI
Appellant
and
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Respondent
Heard at Toronto, Ontario, on October 3, 2007.
Judgment delivered from the Bench at Toronto, on October 3, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20071003
Docket: A-227-05
Citation: 2007 FCA 316
CORAM: NADON J.A.
SEXTON J.A.
SHARLOW J.A.
ANDREW CZARNOGORSKI
Appellant
and
SOCIETY OF COMPSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on October 3, 2007)
SEXTON J.A.
[1] We are not persuaded that the Trial Judge erred in his award of costs. The issue relating to the offer to settle was not brought to his attention prior to judgment nor did counsel for the Appellant ask the Trial Judge to reserve his decision on costs until after a determination of liability had been made, in order to allow for representations to be made on the subject of costs, after the main findings of the Trial Judge were known.
[2] The order of the Trial Judge providing for no costs was not unreasonable having regard to the fact that (a) the Respondent was successful against the corporate defendant but unsuccessful against the Appellant, and that (b) both the corporate defendant and the Appellant were represented by the same counsel and (c) both defendants denied liability for the infringement thus putting the Respondent in the position of having to prove the infringement. It is also significant that the Appellant was the president of the corporate defendant and at all material times was the operator and manager of the business of the corporate defendant.
[3] The appeal should therefore be dismissed with costs.
“J. Edgar Sexton”
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-227-05
STYLE OF CAUSE: ANDREW CZARNOGORSKI
Appellant
and
SOCIETY OF COMPOSERS, AUTHORS, AND MUSIC PUBLISHERS CANADA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 3, 2007
REASONS FOR JUDGMENT
OF THE COURT BY: (NADON, SEXTON, SHARLOW JJ.A.)
DELIVERED FROM
THE BENCH BY: SEXTON, J.A.
APPEARANCES:
RAY DI GREGORIO
FOR THE APPELLANT/
APPLICANT
KELLY GILL
FOR THE RESPONDENT
SOLICITORS OF RECORD:
CAMPORESE SULLIVAN DI GREGORIO HAMILTON, ON
FOR THE APPELLANT/
APPLICANT
GOWLINGS LLP,
TORONTO, ON
FOR THE RESPONDENT