L.S. Entertainment Group Inc. v. Formosa Video (Canada) Ltd.

L.S. Entertainment Group Inc. v. Formosa Video (Canada) Ltd.
Court (s) Database
Federal Court Decisions
Date
2005-09-30
Neutral citation
2005 FC 1347
File numbers
T-1795-01
Notes
Digest
Decision Content
Date: 20050930
Docket: T-1795-01
Citation: 2005 FC 1347
BETWEEN:
L. S. ENTERTAINMENT GROUP INC.
CHINA STAR PICTURES LIMITED
FILM CITY (HONG KONG) LIMITED
FLEA MARKET PRODUCTION LIMITED
FOREIGN EXCHANGE FILMS LIMITED
IMPERIAL INTERNATIONAL LIMITED
LONG SHONG PICTURES (H.K.) LTD.
ONE HUNDRED YEARS OF FILMS COMPANY LIMITED
and WIN'S ENTERTAINMENT LTD.
Plaintiffs
- and -
FORMOSA VIDEO (CANADA) LTD.
SHUN PO CHAN and MANDY HUI MEI CHEN
Defendants
REASONS FOR DECLARATION, ORDER AND JUDGMENT
GIBSON J.
INTRODUCTION
[1] These reasons arise out of a motion filed on behalf of the Plaintiffs on the 16th of September 2004 seeking an order:
1. Striking out the statement of defence of Formosa Video (Canada) Ltd. ("Formosa") and Mandy Hui Mei Chen ("Chen") and granting default judgment to the plaintiff [sic] with respect to these two defendants.
2. Costs of the within motion, costs of aborted attendance at examinations for discovery, and costs of the action to the plaintiffs calculated at the highest scale.
3. And for such further and other relief as to this Honourable Court may seem just.
[2] The Plaintiffs sought a hearing date for the motion "... on a date and at a time and place to be determined by the Administrator."
[3] By a Supplementary Motion Record filed the 14th of December 2004, the Plaintiffs requested that the motion be dealt with in writing pursuant to Rule 369 of the Federal Courts Rules, 1998[1].
[4] Counsel for the Defendants replied by motion record filed the 17th of January 2005, urging that the Plaintiffs' motion be dealt with by this Judge, as case management judge, and that it be dealt with in open hearing and not in writing. Counsel also briefly urged against the merits of the motion based on three affidavits in reply.
[5] Counsel for the Plaintiffs filed written representations in reply on the 18th of January 2005.
[6] Counsel for the Plaintiffs filed a further Supplementary Motion Record, dealing with the issues of damages and costs, on the 25th of February 2005. This latter document was responsive to an Order of this Court dated the 24th of January 2005, providing a timetable for further filings. In addition to the further filing on behalf of the Plaintiffs, the Court's Order contemplated the filing of responsive materials on behalf of the Defendants by the 18th of March 2005. The Order further provided that, in the exercise of the Court's discretion under Rule 369(4), the Plaintiffs' motion would be disposed of in writing after the 18th of March 2005.
[7] By letter dated the 11th of March 2005, the Court was advised by counsel for the Defendants that counsel were withdrawing from representation of the Defendants. Counsel advised that there would be a Notice of Intention to Act in Person forthcoming from the Defendants. No such notice has been received by the Court. Further, no further submissions have been received from the Defendants or from anyone purporting to represent the Defendants.
[8] Against the foregoing, the Court belatedly turns to consideration of the Plaintiffs' motion.
BACKGROUND
a) The Statement of Claim
[9] In their Statement of Claim, the Plaintiffs allege that they are, individually, the owners in Canada of the copyright in 158 scheduled Asian-language "films" (the "films in issue") described as films of television programs and motion pictures. They further allege that L. S. Entertainment Group Inc. ("L. S. Entertainment") is, amongst other things, a wholesale distributor of Asian-language video products for the home-viewing market in Canada, including the films in issue, and possesses in Canada a right, title and interest, protected by the Copyright Act[2] in the films in issue that belong to the other Plaintiffs. They note that L. S. Entertainment is "... the active plaintiff in these proceedings; the other plaintiffs [being] parties pursuant to section 36(2) of the Copyright Act [who] do not intend to take part in the proceedings as copyright owners."
[10] L. S. Entertainment is a British Columbia corporation with its registered office located in Richmond, British Columbia. The other plaintiffs are alleged to be Hong Kong corporations that carry on the business of film production or film distribution or both.
[11] The Plaintiffs allege that the Defendants have infringed copyright in the Asian-language films in issue in respect of each of which the copyright has been registered in the Copyright Office of Canada with certificates of copyright registration having been duly issued.
[12] The Plaintiffs plead and rely on the presumptions set out in subsection 53(2) of the Copyright Act which reads as follows:
53.(2) A certificate of registration of copyright is evidence that the copyright subsists and that the person registered is the owner of the copyright.
53.(2) Le certificat d'enregistrement du droit d'auteur constitue la preuve de l'existence du droit d'auteur et du fait que la personne figurant à l'enregistrement en est le titulaire.
[13] The Plaintiffs further allege that Formosa Video (Canada) Ltd. ("Formosa") is a privately held British Columbia corporation with its registered office located in Burnaby, British Columbia, and with three (3) principals, each of whom was, at the relevant time, an officer or director or both of Formosa. They allege that Formosa carried on a business consisting of a chain of four (4) retail video stores located in and around Vancouver, British Columbia, from which it distributes, rents and sells, among other things, Asian-language motion pictures in VHS video-cassette tape format and VCD and DVD formats, amongst others, to members of the general public for the purpose of home viewing. They allege that the defendant Mandy Hui Mei Chen, is the spouse of Shun Po Chan and is the manager of Formosa.
[14] In addition to very substantial damages including exemplary damages, or, alternatively, an accounting of profits, the Plaintiffs claim a declaration that copyright subsists in the films in issue, that one or another of the Plaintiffs is the copyright owner of each of the films in issue and that L. S. Entertainment possesses a right, title and interest, protected by the Copyright Act, in the copyright in the films in issue belonging to the other plaintiffs. They seek injunctive relief, an Anton Piller Order providing for the custody and preservation of any seized infringing copies of the films in issue, delivery up at the Defendants' expense of infringing copies and related materials, equipment and records, pre-judgment and post-judgment interest and costs.
b) The Anton Piller Order and Its Execution
[15] On the 15th of October 2001, following an ex parte hearing and based upon a five (5) volume motion record filed the 10th of October 2001, an Anton Piller Order herein, extending to fifteen (15) pages plus schedules, issued in favour of the Plaintiffs against premises of Formosa at 4819 Kingsway, Burnaby, British Columbia "... and such other business premises, locations, motor vehicles, and other places and things located within the Province of British Columbia, as may be owned, occupied, or used for the operation of [Formosa's business] by the Defendants or by their respective directors, officers, employees, servants, agents, successors or assigns or by any corporation associated or affiliated with the Defendants ...". The Order extended to " ... certain Asian-language motion pictures in VHS video-cassette tape format, the titles of which are set out in Schedules A through I annexed [to the Order] and for which L. S. Entertainment Group Inc. ... owns the exclusive Canadian rights ... .". The extensive terms of the Order appear under the following headings: Commencement & Duration of Order, Subject of Order: The Films, Premises, Authorized Persons, Functions of Authorized Persons, Rights of Defendants, Obligations of Defendants, Obligations of Plaintiffs, Disposition of Things & Materials Seized, Hours of Entry, Interim Prohibitory Injunction, Motion Ex Parte & In Camera, Sealing of Documents, Plaintiffs' Undertaking, Dispensing with Compliance with Certain Rules, Terminology & Interpretation, and Costs.
[16] The Statement of Claim earlier referred to and forming part of the materials that were before the Court on the Motion for the Anton Piller Order was filed on the 19th of October 2001.
[17] The Anton Piller Order was executed at Formosa's premises at 4819 Kingsway, Burnaby, British Columbia, on the 8th of November 2001. Five (5) persons attended at the premises on behalf of the Plaintiffs, a solicitor, a bailiff, two (2) representatives of L. S. Entertainment and an interpreter. A "Report to the Court made pursuant to the Anton Piller Order" was filed with the Court on the 15th of November 2001 in support of a Motion, filed the 14th of November 2001, seeking a review of the execution of the Anton Piller Order. According to that report, during the course of the execution, as the attending solicitor attests, the defendant Mandy Hui Mei Chen was in attendance, a solicitor on behalf of the Defendants was contacted and consulted and the full contents of the Anton Piller Order were explained to those in attendance. Thirty six (36) VCR video-tapes of fourteen (14) titles (the "seized films") and ten (10) "back-up" computer discs containing rental records, client lists and lists of customers who then had videos under rental were seized and carried away.
[18] As earlier noted, by motion filed the 14th of November 2001, the Plaintiffs sought a review of the execution of the Anton Piller Order, as required by that Order. Hearing of the review motion has on five (5) separate occasions been adjourned by this Court, the last such adjournment order being dated the 27th of May 2002 when the motion was adjourned sine die "pending settlement discussions between the parties". By the same adjournment order, a motion filed on behalf of the Defendants on the 2nd of April 2002 "... for, inter alia, an order setting aside the ex parte Anton Piller Order ... dated October 15, 2001..." was also adjourned sine die.
[19] The materials seized during the execution of the Anton Piller Order presumably remain in the possession or control of the Plaintiffs or their solicitor.
c) The Statement of Defence
[20] On the 8th of January 2002, a Statement of Defence was filed on behalf of the Defendants. Following a number of paragraphs reflecting specific denials of allegations in the Statement of Claim, the substance of the Statement of Defence concludes with the following paragraphs:
13. In reply to paragraph 18 of the Statement of Claim, the Defendants say and the fact is that the activities complained of at all times were done with the consent and licences of the Plaintiffs, whether written, implied or oral.
14. In reply to the Statement of Claim as a whole, the Defendants deny that the Films are protected by copyright in Canada and deny that the Plaintiffs or any of them are the owners of copyright in Canada in the Films.
15. More particularly, the Defendants deny that the Films are original works or are proper subject matter for copyright protection. The Defendants further deny that the author or maker of the Films are qualifying authors or makers under section 5 of the Copyright Act or that the first publication occurred in a treaty country.
16. The Defendants further deny that any authors of the Films were employed by any Plaintiff under a contract of service and deny that the Films were made in the course of their authors' employment. Further, the Defendants deny that any Plaintiff has obtained a valid assignment of copyright or any exclusive rights in the Films, in which copyright exists, which is denied.
17. In further reply to the Statement of Claim as a whole, having regard to paragraphs 15, 16 and 17 [sic] above, any registration of copyright in the Films relied on by the Plaintiffs is invalid, void and of no effect.
18. Further in reply to the Statement of Claim as a whole, the Defendants say, and the fact is, that they were not aware of the subsistence of copyright in the alleged works, which copyright is denied, and had no reasonable ground for suspecting the subsistence of copyright in the alleged works. The Defendants say that the Plaintiffs are not entitled to any remedy, but if they are is [sic], then in view of s.39 of the Copyright Act the Plaintiff is [sic] not entitled to any remedy other than an injunction.
19. The Defendants plead that the claims of the Plaintiffs are barred by subsection 41(1) of the Copyright Act. The Defendants further plead that the Plaintiffs are barred by laches and acquiescence from pursuing any claim.
[21] In the result, the Defendants seek the dismissal of the Plaintiffs' action with costs.
d) Relevant Interlocutory Orders
[22] Two (2) earlier motions to strike the Statement of Defence were filed on behalf of the Plaintiffs. The first was adjourned sine die. With respect to the second motion to strike and grant default judgment against Formosa and Mandy Hui Mei Chen, I, then acting as case management judge, recited the following findings in an Order dated the 8th of January 2004:
THE COURT being satisfied that the written answers to written questions on the examination for discovery of Mandy Hui Mei Chen as agreed to on the oral examination for discovery of Ms. Chen at Vancouver, British Columbia, on the 20th of December, 2002 are, as alleged on behalf of the Plaintiffs, "... so devoid of meaningful content as to be tantamount to a complete refusal to answer the questions";
AND THE COURT further noting that the material filed herein on behalf of the Defendants simply fails to respond to the Plaintiffs' allegation that the Defendants " ...undertook during the oral examination for discovery to provide copies of Formosa's computer records with respect to the Films that are the subject of this action, and then subsequently refused to do so";
I then denied the Plaintiffs' motion on the following terms:
...
2. The Defendant Chen shall attend to be further examined for discovery on behalf of herself and Formosa at Toronto, at their own expense and at a time to be agreed upon by counsel but in any event no later than sixty (60) days from the date of this order, to answer all proper questions asked in the written examination dated the 15th of January, 2003 and all proper questions deriving from answers given.
3. Formosa and Chen shall, within sixty (60) days from the date of this order, comply with the undertaking given by Chen in response to question 124 on her oral examination for discovery above referred to, as that undertaking is amplified by questions 123 and 125 on the said examination and notwithstanding the caveat placed on the record with respect to such undertaking by counsel for Chen and Formosa in response to question 127 on such examination for discovery.
4. The Plaintiffs are entitled to their costs of this motion, calculated on the ordinary scale, and payable by the Defendants in any event of the cause.
[23] By further order dated the 5th of March 2004, following consultation with counsel, I put in place a Dispute Resolution Conference to be held in Vancouver, British Columbia on a day during the week of the 14th of June 2004, to commence at 9.30 a.m., Vancouver time, and to continue for not more than one (1) day.
[24] By further order of the 5th of March 2004, I amended my order of the 8th of January to substitute for the sixty (60) day period referred to in the first substantive paragraph quoted above from that Order a date of the 30th of April 2004 for Mandy Hui Mei Chen's attendance at Toronto for further examination for discovery on behalf of herself and Formosa.
[25] By order dated the 6th of April 2004, the Dispute Resolution Conference fixed for a day in the week of the 14th of June 2004, was more specifically fixed for Thursday the 17th of June 2004 to commence at 9.30 a.m., Vancouver time, and to continue for not more than one (1) day. On that day, counsel for the Plaintiffs and a representative of the Plaintiffs with full authority on behalf of the Plaintiffs to agree to any negotiated settlement attended at the time and place fixed, together with counsel for the Defendants who was without full authority to agree to a settlement on behalf of the Defendants. Neither Mandy Hui Mei Chen nor anyone else with full authority on behalf of the Defendants attended. No notice that Mandy Hui Mei Chen or another person having full authority would not attend was provided to the Court or to the Plaintiffs. In the result, on the same date, I ordered:
The Dispute Resolution Conference herein scheduled for this day is adjourned sine die with costs of the day, fixed at Seven Hundred and Fifty Dollars ($750.00) payable by the Defendants to the Plaintiffs forthwith and in any event of the cause.
The Defendants may take no further step in this proceeding, other than a step previously ordered by this Court to be taken or a step responsive to a step hereafter taken on behalf of the Plaintiffs until evidence satisfactory to the Court of payment of the costs, hereby ordered to be paid, is filed with the Court.
No evidence of payment of the costs so ordered has, to this date, been filed with the Court.
THE PLAINTIFFS' SUBMISSIONS IN SUPPORT OF THE MOTION NOW BEFORE THE COURT
[26] Counsel for the Plaintiffs urges in support of this motion to strike the Defendants' Statement of Defence and enter default judgment against the Defendants, Formosa and Mandy Hui Mei Chen ("Chen") that they have failed to comply with three (3) orders of this Court, namely, my order of the 8th of January 2004 regarding re-attendance by Chen in Toronto for continuance of her examination for discovery, as that order was amended, my order of the 5th of March 2004, as supplemented, regarding attendance at a Dispute Resolution Conference in Vancouver on the 17th of June 2004 and my order of the 17th of June 2004 requiring payment of costs of that day by the Defendants to the Plaintiffs, forthwith and in any event of the cause.
[27] With respect to the first order, Chen not having attended in Toronto by the 5th of March 2004, on request on her behalf, the time for such attendance was extended first, to the 30th of April 2004. By agreement of the parties, attendance was scheduled for the 29th of April 2004 but, due to circumstances impacting counsel for the Plaintiffs that were unquestionably beyond his control, time for compliance was further extended to the 31st of May 2004, this time at the request of the Plaintiffs. The Plaintiffs served on Chen and Formosa a direction to attend for further examination for discovery on the 31st of May 2004. Chen subsequently advised the Plaintiffs, through counsel, that she was unavailable on that date because she was purportedly in Taiwan. In the result, the Plaintiffs consented to an extension of time for Chen's attendance on the examination until the 11th of June 2004. On that date, the Plaintiffs and their counsel attended at the fixed time and place but, without explanation, neither Chen nor her counsel attended. The Plaintiffs submit that they incurred out-of-pocket costs as a result of the adjournment on the 31st of May and Chen's non-attendance on the 11th of June, which costs the Defendants have refused to pay.
[28] As earlier noted, following consultation with counsel, the Court, by order, fixed the 17th of June 2004 as the date for a Dispute Resolution Conference to be held at a specified time and location in Vancouver. The Plaintiffs attended represented by counsel and an officer of L. S. Entertainment who had authority to bind the Plaintiffs. While counsel for Chen attended, Chen did not herself attend. Counsel provided a medical certificate that, in the view of counsel for the Plaintiffs, a view shared by the Court, was entirely too vague to justify Chen's non-attendance. Since that date, no further or better medical certificate has been provided.
[29] Finally, once again as earlier noted, the Court by order fixed costs of the day for the 17th of June, 2004, payable forthwith by the Defendants to the Plaintiffs. Two (2) and perhaps three (3) cheques were written by one or another of the Defendants in the amount fixed. Although the cheques written were delivered to the Plaintiffs, they were dishonoured when presented.
[30] Counsel for the Plaintiffs concludes his written submissions in this regard in the following terms:
This failure [that is to say the provision of cheques in payment of costs of the day on the 17th of June, 2004 that were subsequently dishonoured] substantiates the Plaintiffs' submission that Chen's conduct in May and June [of 2004] had little to do with her health and everything to do with an arrogant and contemptuous refusal to abide by court orders.
RESPONDING SUBMISSIONS ON BEHALF OF THE DEFENDANTS
[31] Counsel for the Defendants submits that the Plaintiffs themselves were complicit in the failure of the parties to comply with this Court's order that Chen attend for discovery in Toronto by the 31st of May 2004 in that they agreed to waive strict compliance with that Order by agreeing to re-schedule the examination for the 11th of June 2004. Counsel further submits that Chen was unable to attend on the rescheduled date "due to health reasons", which allegation is supported by an affidavit of a solicitor for Formosa and Chen, not counsel for Formosa and Chen on this matter.
[32] With respect to the non-attendance of Chen at the Dispute Resolution Conference on the 17th of June 2004, counsel submits that the non-attendance was satisfactorily addressed by the Court's "costs penalty" order issued on that date.
[33] Finally, counsel submits that the non-payment of the costs order "... was not intentional but, at least in the case of the third cheque, likely resulted from the delay in presentation of the cheque, since other cheques written at the same time cleared."
THE ISSUES
[34] In a Supplementary Motion Record Re: Damages & Costs filed the 25th of February 2005, counsel for the Plaintiffs wrote:
Given that these representations are made without an oral hearing the Plaintiffs are waiving their claim for a declaration. The Anton Piller Order was granted. Damages for conversion are no longer granted under the Copyright Act. An interlocutory injunction was granted and the Plaintiffs are seeking a permanent injunction. The Plaintiffs are not pursuing their claim for exemplary damages; to the extent that the defendants' conduct during the course of these proceedings may warrant censure, that fact will be discussed below in the representations on costs. The Plaintiffs are not seeking an accounting of profits.
The Plaintiffs are seeking the pleaded relief for a permanent injunction, statutory damages rather than general damages, delivery-up, interest, costs, and GST as applicable.
[35] In the result, the following issues remain on this motion: first, whether or not an order striking out the Statement of Defence and granting default judgment as against Formosa and Chen is justified; secondly, whether or not a disposition of the claim as against the defendant Shun Po Chan is appropriate; and thirdly, assuming that the Statement of Defence is struck out as against Formosa and Chen and that default judgment is granted against them, whether the reliefs now claimed against Formosa and Chen are justified, those reliefs being a permanent injunction, statutory damages, delivery up which the Court assumes includes forfeiture of the seized films and related back-up records, interest on statutory damages, and costs in favour of the Plaintiffs, inclusive of Goods and Services Tax.
[36] Finally, and somewhat peripherally, confidentiality in respect of aspects of the Court's file and the status of counsel for the Defendants before the Court given the letter of the 11th of March 2005 from counsel for the Defendants indicating that he and his firm are withdrawing from representing the Defendants in this action, particularly in light of the fact that no notice of intention to act in person has since been filed on behalf of all or any of the Defendants, remain to be briefly dealt with.
ANALYSIS
[37] By order of the then Associate Chief Justice of the Federal Court of Canada, now the Chief Justice of the Federal Court, dated the 3rd of June 2003, I was designated as Case Management Judge in this matter. In the result, I have had a close association with this file since that date, and indeed, for some weeks prior to that date. The materials, including affidavits, filed on the motion here under consideration are, in some respects, rather sketchy. Thus, once again in some respects, I will rely on my general knowledge of the file as Case Management Judge and, in particular, on my recorded notations of dealings with counsel for the Plaintiffs and for the Defendants and, more particularly, on those notations as they relate to Orders that I have issued on this file.
a) Striking Out of the Statement of Defence as Against Formosa and Chen and Default Judgment
[38] Rule 221(1) of the Federal Court Rules, 1998[3] (the "Rules") reads as follows:
221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it
(a) discloses no reasonable cause of action or defence, as the case may be,
(b) is immaterial or redundant,
(c) is scandalous, frivolous or vexatious,
(d) may prejudice or delay the fair trial of the action,
(e) constitutes a departure from a previous pleading, or
(f) is otherwise an abuse of the process of the Court,
and may order the action be dismissed or judgment entered accordingly.
221. (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d'un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas :
a) qu'il ne révèle aucune cause d'action ou de défense valable;
b) qu'il n'est pas pertinent ou qu'il est redondant;
c) qu'il est scandaleux, frivole ou vexatoire;
d) qu'il risque de nuire à l'instruction équitable de l'action ou de la retarder;
e) qu'il diverge d'un acte de procédure antérieur;
f) qu'il constitue autrement un abus de procédure.
Elle peut aussi ordonner que l'action soit rejetée ou qu'un jugement soit enregistré en conséquence.
[39] It is trite law that Hunt v. Carey Canada Inc.[4] stands for the proposition that, in circumstances such as those enumerated in Rule 221(1), the test in Canada to strike out a pleading is whether it is plain and obvious that the pleading discloses no cause of action or defence. This proceeding, despite the length of time it has been before the Court, has not proceeded to a stage where it is possible to say with any degree of confidence that the Defendants' Statement of Defence discloses no reasonable defence. Thus, the Plaintiffs cannot succeed with the relief of striking the Statement of Defence as against Formosa and Chen on the basis of Rule 221.
[40] But that is not the end of the matter. The opening words of Rule 97 of the Rules and paragraph (d) of that Rule read as follows:
97. Where a person fails to attend an oral examination or refuses to take an oath, answer a proper question, produce a document or other material required to be produced or comply with an order made under rule 96, the Court may
97. Si une personne ne se présente pas à un interrogatoire oral ou si elle refuse de prêter serment, de répondre à une question légitime, de produire un document ou un élément matériel demandés ou de se conformer à une ordonnance rendue en application de la règle 96, la Cour peut :
.....
(d) dismiss the proceeding or give judgment by default, as the case may be;
...
[emphasis added]
.....
d) ordonner que l'instance soit rejetée ou rendre jugement par défaut, selon le cas;
...
[je sousligne]
The reference to Rule 96 in the opening words of Rule 97 is inapplicable on the facts of this matter.
[41] As earlier noted in these reasons, this Court ordered Chen to re-attend for examination for discovery on behalf of herself and Formosa at Toronto, and at their own expense, at a time eventually extended by further order to the 31st of May 2004. Efforts to negotiate a date and time for re-attendance within the time provided proved unsuccessful. In the result, counsel for the Plaintiffs made an appointment at the official examiner's office for the 31st of May 2004 and served a direction to attend. Chen alleges she was in Taiwan on that date. In the result, without consultation with the Court, the deadline of the 31st of May 2004 was extended so that the examination for discovery could be resumed in Toronto on the 11th of June 2004. Counsel for the Plaintiffs attended at the agreed time and at the agreed place. Neither Chen nor her counsel appeared. Counsel for the Plaintiffs was later advised that Chen's failure to attend was due to ill health.
[42] Whether by failure to agree to a date for re-attendance before the end of May 2004 or by failure to attend, without notice, on the 11th of June 2004, or both, I am satisfied that Chen, on behalf of herself and Formosa, breached an order of the Court within the contemplation of Rule 97.
[43] By letter dated the 16th of June 2004, counsel for the Defendants advised the Court and, by copy, counsel for the Plaintiffs as follows:
I am informed through Ms. Chen's Mandarin-speaking counsel, John Mao, that for medical reasons, on her doctor's recommendations, Ms. Chen is unfortunately unable to attend the Dispute Resolution Conference scheduled for tomorrow. She is apparently under medication and cannot attend either in person or by telephone. Last Friday, June 11, 2004 Ms. Chen was scheduled to attend the continuation of her examination for discovery in Toronto and I learned that morning that she had not attended for health reasons. I have been provided this morning by Mr. Mao with a doctor's note, copy attached, prepared in respect of June 11, 2004 and Mr. Mao has this morning been advised that her doctor is providing a further report today on her condition and her inability to attend tomorrow, which I will forward to the Court on receipt. Unfortunately, there is no other officer or manager to represent Formosa Video (Canada) Ltd. at tomorrow's Conference.
The doctor's note referred to in the foregoing quotation is in the following terms:
To Whom It May Concern:
For health reasons Ms. Chen could not go to Toronto June 11, 2004.
A similar note dated the 16th of June 2004 simply provides:
For medical reasons she [Ms. Chen] could not attend medical [sic] proceedings tomorrow June 17, 2004.
[44] Counsel for the Plaintiffs urges that the medical certificates or notes provided are entirely inadequate. Counsel for the Plaintiffs, by letter dated the 24th of June 2004, requested more detailed reports. No written response was received. In a telephone conversation with counsel for the Defendants, counsel for the Plaintiffs was apparently advised that more detailed information was forthcoming. In the material before me, an officer of L. S. Entertainment attests that no more detailed report was ever received.
[45] I share the view of counsel for the Plaintiffs that the medical notes received were entirely inadequate. In addition, they were both received too late to prevent inconvenience and expense being incurred.
[46] While this Court's order fixing the date, time and place of the Dispute Resolution Conference is not directly within the contemplation of Rule 97, I am satisfied that its effect was to create a situation directly analogous to the first situation contemplated by Rule 97 and, as urged on behalf of the Plaintiffs, I am prepared to rely on Rule 4 of the Rules to treat breach of the Order fixing the Dispute Resolution Conference as tantamount to a breach of an Order to attend an oral examination.
[47] Once again, as earlier indicated in these reasons, at the aborted Dispute Resolution Conference, I ordered the Defendants to forthwith pay costs of the day to the Plaintiffs in the fixed amount of seven hundred and fifty dollars ($750.00). The Plaintiffs allege that two (2) cheques in payment of such costs were sequentially provided by the Defendants, both of which were dishonoured. The Defendants urge that three (3) cheques were sequentially provided and that the Plaintiffs should have been more assiduous in pursuing the cashing of at least the last of the cheques.
[48] I reject the position of the Defendants and determine that the conduct of the Defendants in response to the costs order was contemptuous of an order of this Court. That being said, the costs order is not an order within the contemplation of Rule 97.
[49] In Kuzmich v. Canada (Minister of Citizenship and Immigration)[5], Justice McGillis noted that the authority granted by Rule 97(d) to dismiss a proceeding or give judgment by default is discretionary. On the facts before her, she exercised her discretion to dismiss an application for judicial review. I determine to exercise my discretion in a similar manner and will strike out the
Statement of Defence against the Defendants Formosa and Chen by reason of the failure of Chen to comply with an order requiring her, on her own behalf and on behalf of Formosa, to re-attend for further examination for discovery. In doing so, I also rely on Chen's failure to attend, without adequate excuse or timely notice, at the Dispute Resolution Conference scheduled for the 17th of June 2004, in contravention of an Order of this Court that I regard as creating a situation analogous to the situations that are directly within the contemplation of Rule 97. I arrive at this conclusion taking into account the failure of the Defendants to comply with the costs order earlier referred to and taking into account the general conduct of Chen, on behalf of herself and Formosa, as it has come to my attention during the time when I have been Case Management Judge of this proceeding and as reflected in the materials before me on this motion. I also take into account Chen's affidavit that is before me on this motion in which she describes herself as the Manager of Formosa and the notation in a letter dated the 16th of June 2004 from counsel for the Defendants to the Court in which it is indicated that there is no other officer or manager of Formosa to attend the Dispute Resolution Conference. I extrapolate from this statement and from the conduct of Chen throughout the proceeding that she is the sole person with authority to speak for Formosa in respect of this proceeding and has throughout acted and spoken for Formosa, or failed to act and speak for Formosa, as well as for herself, without adequate notice and evidence of supportable reason.
[50] Rule 210 reads as follows:
210. (1) Where a defendant fails to serve and file a statement of defence within the time set out in rule 204 or any other time fixed by an order of the Court, the plaintiff may bring a motion for judgment against the defendant on the statement of claim.
(2) Subject to section 25 of the Crown Liability and Proceedings Act, a motion under subsection (1) may be brought ex parte and in accordance with rule 369.
(3) A motion under subsection (1) shall be supported by affidavit evidence.
(4) On a motion under subsection (1), the Court may
(a) grant judgment;
(b) dismiss the action; or
(c) order that the action proceed to trial and that the plaintiff prove its case in such a manner as the Court may direct.
210. (1) Lorsqu'un défendeur ne signifie ni ne dépose sa défense dans le délai prévu à la règle 204 ou dans tout autre délai fixé par ordonnance de la Cour, le demandeur peut, par voie de requête, demander un jugement contre le défendeur à l'égard de sa déclaration.
(2) Sous réserve de l'article 25 de la Loi sur la responsabilité civile de l'État et le contentieux administratif, la requête visée au paragraphe (1) peut être présentée ex parte et selon la règle 369.
(3) La preuve fournie à l'appui de la requête visée au paragraphe (1) est établie par affidavit.
(4) Sur réception de la requête visée au paragraphe (1), la Cour peut :
a) accorder le jugement demandé;
b) rejeter l'action;
c) ordonner que l'action soit instruite et que le demandeur présente sa preuve comme elle l'indique.
Here a statement of defence was filed which will now be struck as against Formosa and Chen. I am satisfied that, in such circumstances, default judgment is available both under Rule 97(d) and under Rule 210 against Formosa and Chen since the effect of striking the Statement of Defence, as against them, is tantamount to no defence having been filed on their behalf.
[51] Allied Colloids Ltd. v. Alkaril Chemicals Ltd.[6] appears to stand for the proposition that default judgment should not be invoked where serious questions of law can be argued, or the facts are not clear and undisputed. Here, by their Statement of Defence, the Defendants put into issue the questions of existence of copyright in the films in issue, ownership of copyright in the films in issue and the rights of L. S. Entertainment in Canada in relation to the films in issue. That being said, those issues, which are clearly serious issues, are put into play by the Statement of Defence in only the most general of terms and nothing further of substance, since the Statement of Defence, has been put forward by the Defendants with respect to those issues.
[52] By contrast, on the application for an Anton Piller Order herein, very extensive evidence was put before the Court as to the existence of copyright, ownership of copyright and the rights in Canada of L. S. Entertainment in respect of the films in issue. Certificates of registration of copyright in each of the films in issue, in each case indicating L. S. Entertainment Group Inc. as the owner for all purposes in Canada, were put before the Court. Subsection 53(2) of the Copyright Act provides as follows:
53.(2) A certificate of registration of copyright is evidence that the copyright subsists and that the person registered is the owner of the copyright.
53.(2) Le certificat d'enregistrement du droit d"auteur constitue la preuve de l'existence du droit d'auteur et du fait que la personne figurant à l'enregistrement en est le titulaire.
[53] A judge of this Court was satisfied on the application for issuance of the Anton Piller Order that, at least on a prima facie basis and on an ex parte application, the evidence of the existence of copyright and of ownership and related rights in Canada was sufficient to justify the issuance of an Anton Piller Order.
[54] In light of the foregoing, particularly, the generality of the allegations in the Statement of Defence, the extensive evidence put forward by the Plaintiffs on the application for the Anton Piller Order, including the certificates of registration, and the conclusion of a judge of this Court that issuance of an Anton Piller Order was justified, I am satisfied that the Defendants have not met the threshold test stated in Allied Colloids Ltd., supra, by demonstrating that there is here a serious question of law to be argued or facts that are unclear and substantially disputed.
[55] This Court, on a not infrequent basis, grants default judgment and a declaration, injunctive relief and damages in circumstances where a statement of claim has been filed, an Anton Piller Order has been issued and executed and the defendant or a defendant fails to appear on the hearing of a motion for review of the execution of the Anton Piller Order and fails to file a statement of defence within the time provided. Assuming the foregoing practice to be warranted, and I make that assumption, as a matter of principle, it is not in the interests of justice to encourage persons against whom an Anton Piller Order is executed, to obstruct and ignore the process of