Canadian Private Copying Collective v. Redpact Impex Inc., 2017 ONSC 3038
CITATION: Canadian Private Copying Collective v. Redpact Impex Inc., 2017 ONSC 3038
DIVISIONAL COURT FILE NO.: 520/16
DATE: 20170516
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, NORDHEIMER and CORBETT JJ.
BETWEEN:
CANADIAN PRIVATE COPYING COLLECTIVE Plaintiff/Appellant
– and –
REDPACT IMPEX INC., JIMMY TSENG CHEN (ALSO KNOWN AS TSENG HSING CHEN) WIE CHEN (ALSO KNOWN AS WIE HSING CHEN AND ALSO KNOWN AS WILLIAM CHEN), 2260582 ONTARIO INC. and BRIAN VINCENT KU (ALSO KNOWN AS KUO YAU) Defendants/Respondents
Stephen Taylor, for the Plaintiff/Appellant
No one appearing for the Defendants/Respondents,
HEARD at Toronto: May 16, 2017
NORDHEIMER J. (orally)
[1] The plaintiff appeals, with leave, from the order of Wilton-Siegel J. dated October 12, 2016, wherein the motion judge declined to grant default judgment to the plaintiff.
[2] The Copyright Act, R.S.C. 1985, c. C-30 requires that importers and manufacturers of blank media, ordinarily used by individuals to copy music, remit private copying levies to the plaintiff on the sale or disposition of blank media in order to compensate eligible rights holders for the private copying of their works.
[3] The plaintiff commenced this action against a number of defendants for failure to remit the levies. Two of the defendants, 2260582 Ontario Inc. (“2260582”) and Brian Vincent Ku failed to defend the claim and were noted in default.
[4] It is alleged in the statement of claim that these defendants, along with others, sold 21,604,045 units of blank media in Canada, and failed to pay the levies due to the plaintiff. Mr. Ku is alleged to be the sole director of 2260582 and, in that capacity, it is alleged that he conspired, both with the company and with the other defendants, to avoid paying the required levies.
[5] By virtue of r. 19.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, any defendant who is noted in default is deemed to admit all of the allegations of fact made in the statement of claim.
[6] The motion judge declined to award default judgment for two reasons. One is that he stated that fraud was being asserted and the other was that the plaintiff ought to have to satisfy the court by way of oral evidence, both of the quantity of media and that they were, in fact, blank disks.
[7] I have difficulty with both of the motion judge’s reasons. In terms of the first reason, I do not see any pleading of fraud in the statement of claim. Admittedly, a conspiracy is pleaded but that is not the same thing as pleading fraud. In any event, I am not aware of any authority that distinguishes fraud from the effect of deemed admissions contained in the default proceedings under the Rules and none was cited by the motion judge.
[8] In terms of the second reason, there was an express pleading of the quantity of media involved, and of the fact that the media were blank. Those allegations of fact are deemed to have been admitted by these defendants. In those circumstances, I fail to see any reason why the plaintiff should be required to separately establish those facts through a trial. To hold otherwise would appear to defeat the purpose of Rule 19.
[9] In the end result, I conclude that the motion judge erred in not granting default judgment as had been requested. The appeal is allowed and default judgment shall issue against 2260582 Ontario Inc. and Brian Vincent Ku as set out in paragraphs (c), (d) and (g) of the amended Notice of Appeal together with costs.
KITELEY J.:
[10] I have endorsed the Appeal Book and Compendium as follows: “This appeal is allowed for oral reasons given. Judgment to issue against 2260582 Ontario Inc. and Brian Vincent Ku (also known as Kuo Yan) in accordance with paragraphs (c), (d) and (g) of the amended notice of appeal. Costs in the amount of $5,773.12.”
NORDHEIMER J.
I agree
KITELEY J.
I agree
D.L. CORBETT J.
Date of Reasons for Judgment: May 16, 2017
Date of Release: May 17, 2017
CITATION: Canadian Private Copying Collective v. Redpact Impex Inc., 2017 ONSC 3038
DIVISIONAL COURT FILE NO.: 520/16
DATE: 20170516
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, NORDHEIMER and CORBETT JJ.
BETWEEN:
CANADIAN PRIVATE COPYING COLLECTIVE Plaintiff/Appellant
– and –
REDPACT IMPEX INC., JIMMY TSENG CHEN (ALSO KNOWN AS TSENG HSING CHEN) WIE CHEN (ALSO KNOWN AS WIE HSING CHEN AND ALSO KNOWN AS WILLIAM CHEN), 2260582 ONTARIO INC. and BRIAN VINCENT KU (ALSO KNOWN AS KUO YAU) Defendants/Respondents
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: May 16, 2017
Date of Release: May 17, 2017