CITATION: Canadian Bandurist Capella Inc. v. Mishalow, 2016 ONSC 6041
COURT FILE NO.: DC-16-0003-0000
DATE: 2016 09 26
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Canadian Bandurist Capella Inc. Aka Canadian Bandurist Capella, Appellant - and - Victor Mishalow, Respondent
BEFORE: Bloom, J.
COUNSEL: R. Krupnyk, Counsel for the Appellant
J. Juda, Counsel for the Respondent
HEARD: September 23, 2016
E N D O R S E M E N T
BLOOM J.
I. INTRODUCTION
[1] The Appellant appeals from the judgment of Deputy Judge W. McRea dated December 14, 2015 sitting as a judge of the Small Claims Court at Burlington, Ontario. The trial judge awarded the Respondent $ 20,000.00 in damages and $1500.00 in costs.
II. ANALYSIS
[2] The proceeding arose from the relationship between the Respondent as artistic director of the Appellant, which conducted performances of traditional Ukrainian music. The substance of the reasoning of the trial judge is contained in the following passage:
The plaintiff [(Respondent)] had both the common law copyright and the moral rights to the works that he composed.
He composed, in my opinion, 200 works and I would assess the damages as provided by the Copyright Act, at the minimum of $100 per work for a total of $20,000.
[3] In his factum the Appellant put in issue the damages award on a number of bases both factual and legal. It did not, however, raise the adequacy of the reasons to permit meaningful appellate review. I raised this matter because I was having difficulty in understanding how the trial judge reasoned to his conclusion.
[4] I see no unfairness to the Respondent in considering this point because the Appellant’s factum put the Respondent on notice that the very questions on which I was seeking reasoning were in issue.
[5] I gave the Respondent time to seek authorities to assist me. He drew to my attention Maple Ridge Community Management Ltd. V. Peel Condominium Corporation No. 231, 2015 ONCA 520. In that decision Hourigan J.A. for the Court of Appeal set out the applicable principles in the following passages:
(a) The “What” and the “Why”
[24] The Divisional Court relied on this court’s decision Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, for the principle that in order to permit meaningful appellate review, the reasons of a court must adequately express “what” was decided and “why” it was decided. Although the appeal justice correctly cited the standard to permit meaningful appellate review, he erred in applying that standard to the facts of this case.
(b) The Record
[30] Having concluded that the reasons of the Small Claims Court were facially incapable of appellate review, the Divisional Court was obliged to consider the record before the trial judge to determine if the reasons were more comprehensible when read in the context of this record.
(c) The Small Claims Court Context
[33] The Supreme Court of Canada has recognized that access to justice is a significant and ongoing challenge to the justice system with the potential to threaten the rule of law. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 1, the court held:
Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.
[34] The Small Claims Court is mandated under s. 25 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to “hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.” The Small Claims Court plays a vital role in the administration of justice in the province by ensuring meaningful and cost effective access to justice for cases involving relatively modest claims for damages. In order to meet its mandate, the Small Claims Court’s process and procedures are designed to ensure that it can handle a large volume of cases in an efficient and economical manner.
[35] Reasons from the Small Claims Court must be sufficiently clear to permit judicial review on appeal. They must explain to the litigants what has been decided and why: Doerr v. Sterling Paralegal, 2014 ONSC 2335, at paras. 17-19. However, appellate consideration of Small Claims Court reasons must recognize the informal nature of that court, as well as the volume of cases it handles and its statutory mandate to deal with these cases efficiently. In short, in assessing the adequacy of the reasons, context matters: Massoudinia v. Volfson, 2013 ONCA 29, at para. 9. Just as oral reasons will not necessarily be as detailed as written reasons, reasons from the Small Claims Court will not always be as thorough as those in Superior Court decisions. Failing to take the Small Claims Court context into account only serves to restrict access to justice by unnecessarily imparting formality and delay into a legal process that is designed to be informal and efficient.
[6] In the case at bar the legal analysis required of the trial judge according to the Respondent’s submissions before me included the application of the principles set out in the following passage from A.G.C. v. Madeleine Rundle c.o.b. NEC PLUS ULTRA 2013 ONSC 2747:
[36] Section 5 of the Copyright Act states that copyright shall subsist “in every original literary, dramatic, musical and artistic work”. In CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339, at para 25, the Supreme Court held that to be considered “original” and thereby attract copyright protection, what is required is the exercise of skill and judgment that is not so trivial that is [sic] could be characterized as a purely mechanical exercise:
25 For these reasons, I conclude that an "original" work under the Copyright Act is one that originates from an author and is not copied from another work. That alone, however, is not sufficient to find that something is original. In addition, an original work must be the product of an author's exercise of skill and judgment. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. While creative works will by definition be "original" and covered by copyright, creativity is not required to make a work "original".
[37] What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment.
[7] The Respondent could not point out to me in the trial judge’s reasons or in the record how the trial judge applied those principles to facts he found at trial. That weakness in the judgement appealed supports my conclusion that neither the trial judge’s reasons alone nor those reasons supplemented by the record adequately express “what” was decided and “why” it was decided.
[8] Reluctantly, therefore, given the Small Claims Court context, I must order a new trial. There has been a miscarriage of justice by virtue of the denial to the Appellant of appellate review by virtue of the inadequacy of the reasons of the trial judge even as supplemented by the record.
III. COSTS
[9] If the parties are unable to agree on costs, I will receive written submissions on that issue of no more than 3 pages, excluding a bill of costs. The Appellant shall serve and file its submissions within 14 days of release of this endorsement. The Respondent shall serve and file his submissions within 14 days from service of the Appellant’s submissions. There shall be no reply.
Bloom, J.
DATE: September 26, 2016
CITATION: Canadian Bandurist Capella Inc. v. Mishalow, 2016 ONSC 6041
COURT FILE NO.: DC-16-0003-0000
DATE: 2016 09 26
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Canadian Bandurist Capella Inc. Aka Canadian Bandurist Capella, Appellant - and - Victor Mishalow, Respondent
BEFORE: Bloom, J.
COUNSEL: R. Krupnyk, Counsel for the Appellant
J. Juda, Counsel for the Respondent
ENDORSEMENT
Bloom, J.
DATE: September 26, 2016