Julia Marie Williams Kennedy

This decision addresses costs arising from multiple motions in two related commercial actions involving contractual disputes and counterclaims between corporate parties.

The court evaluated costs under Rules 1.04(1.1) and 57 of the Rules of Civil Procedure, considering proportionality, complexity, success on the motions, counsel time and rates, and litigation conduct.

One party had obtained judgment without trial in the first action and succeeded on several motions, while the opposing party succeeded on certain procedural motions and defeated a motion to dismiss the second action based on a forum selection clause.

The court declined to award substantial indemnity costs and instead allocated partial indemnity costs reflecting divided success.

Specific cost awards were made payable between the parties depending on the particular motions and outcomes.

Montel brought a motion to strike the defendants' counterclaims and for judgment on unpaid invoices in Action No. 1.

The defendants sought to stay Action No. 1 and consolidate it with Action No. 2, which involved claims for breach of a distribution agreement.

Montel also moved to dismiss Action No. 2 based on a forum selection clause.

The court struck the counterclaims in Action No. 1 as duplicitous of claims in Action No. 2 and granted judgment to Montel for the unpaid invoices, refusing a stay.

The court dismissed Montel's jurisdictional motion, finding the validity of the agreement containing the forum clause was a triable issue.

Finally, the court allowed Kipawa to be added as a plaintiff in Action No. 2 but denied consolidation, ordering consecutive trials instead.

The defendants brought a motion to strike portions of the plaintiffs’ statement of claim or alternatively for further particulars.

The claim alleged copyright infringement, misappropriation of trade secrets, interference with contractual relations, unjust enrichment, and misappropriation of goodwill relating to software and a business method used in contact centre management.

The court held that the pleading of copyright infringement was deficient because it failed to plead the chain of title and did not clearly identify the copyrighted works or the assignment or grant of rights required under the Copyright Act.

That portion of the claim was struck with leave to amend.

The remaining causes of action were sufficiently pleaded and the request for further particulars was dismissed.

In a copyright appeal, the Court considered whether pre-existing sound recordings embedded in film and television soundtracks remain subject to equitable remuneration under s. 19 of the Copyright Act when the soundtrack accompanies a cinematographic work.

Applying modern statutory interpretation, the Court held that the soundtrack exclusion in the definition of sound recording captures pre-existing recordings in that context.

The Court found this reading consistent with the legislative scheme, parliamentary intent, and international obligations under the Rome Convention.

As a result, the proposed tariffs could not be certified for performances or communications of recordings when accompanying cinematographic works.

The appeal concerned whether online music previews streamed before purchase are fair dealing for the purpose of research under the Copyright Act.

The Court held that research must be interpreted broadly and assessed from the user perspective, not only from the service provider perspective.

Applying the CCH framework, the Court found the previews fair in purpose, character, amount, alternatives, nature of the work, and market effect.

Because the previews were short, lower quality, temporary, and supported consumer selection without substituting for purchases, no additional royalties were payable for them.

In a copyright tariff appeal concerning online music services, the Court addressed whether on-demand transmissions over the Internet constitute communication to the public by telecommunication under the Copyright Act.

The Court held that individual user-initiated streaming transmissions are not private in character when viewed as repeated transmissions to members of the public, and therefore remain within the communication right.

In light of the companion ruling on downloads, the download issue was moot and the appeal succeeded only to that extent.

The Court further held that correctness applied to the legal question under the statutory scheme, while a concurrence preferred reasonableness deference to the specialized tribunal.