DATE: 20020409
DOCKET: C34727

COURT OF APPEAL FOR ONTARIO

SIMMONS J.A. (In Chambers)

B E T W E E N:

JOHN FOLKES

John Folkes in person

Plaintiff

Appellant

Justin deVries

For Virgin Records

• and -

Kevin Weber
For Global Music Ltd.

GREENSLEEVES PUBLISHING LIMITED, SIGNET RECORDS INC., VIRGIN RECORDS (CANADA) INC., NORTHRIDGE MUSIC COMPANY GLOBAL MUSIC LTD., ESTATE OF HENRY MANCINI, ORVILLE BURRELL AND CECIL CAMPBELL (also known as PRINCE BUSTER)

Kristine Di Bacco
For Greensleeves Publishing Limited, Northridge Music Company and Estate of Henry Mancini

Anthony Cole
For Burrell

Defendants
Respondents

Heard: June 29, 2001

On appeal from four Certificates of Assessment of Costs issued on November 3, 1999 by Assessment Officer E.M.Q. Moquin.

SIMMONS J.A.:

[1] Mr. Folkes appeals from four Certificates of Assessment of Costs issued by Assessment Officer E.M.Q. Moquin on November 3, 1999 relating to costs awarded by this court.

[2] The costs were assessed on June 21, 1999. Mr. Folkes requested that the Certificates of Assessment be held back for fourteen days to permit objections. He delivered written objections on June 27, 1999.

[3] The assessment officer issued Reasons for Decision on Assessment on November 3, 1999, together with the four Certificates of Assessment. She assessed the costs awarded on appeal as follows:

1. Greensleeves Publishing Limited, Northridge Music Company and Estate of Henry Mancini -- $11,984.30;

2. Virgin Records (Canada) Inc. -- $5,697.59;

3. Global Music Ltd -- $17,500.58; and

4. Orville Burrell -- $1,493.99.

[4] Mr. Folkes raises many issues on appeal. I have summarized his grounds of appeal as follows:

1. the assessment officer erred by proceeding with the assessment because the respondents have no basis for resisting his claims against them. The respondents should not accordingly be entitled to costs;

2. the assessment officer erred by proceeding with the assessment without requiring counsel for the respondents to prove that Northridge Music Company exists;

3. the assessment officer erred by proceeding with the assessment when the claim for costs asserted on behalf of Northridge Music Company is a fraud on the court;

4. the assessment officer erred by failing to recognize and take account of the impact of the costs award made against him by Somers J. on his ability to pay additional costs;

5. the assessment officer erred in failing to exercise her authority to refuse to assess costs where the justice of the case demands it;

6. the assessment officer demonstrated bias by falsely describing his objection that Greensleeves had stolen royalties from him as an objection that Greensleeves had garnished royalties owing to him in order to collect the costs fixed by Somers J.;

7. the assessment officer erred in proceeding with an assessment in the face of an objection that the formal order of this court was obtained on the basis of a fraudulently backdated order; and

8. the assessment officer erred in proceeding with an assessment in the face of an objection that the formal order of this court directing an assessment was obtained based on counsel’s approval of the form of order at a time when Mr. Folkes was no longer represented.

[5] I would dismiss this appeal.

Background

[6] Mr. Folkes commenced an action against the respondents in Ontario on January 8, 1996. He claimed a declaration against Greensleeves Publishing Limited that a copyright assignment agreement he made in Greensleeves’ favour is null and void, as well as an order re-vesting full copyright in the musical “Oh Carolina” in him. He claimed damages for infringement of copyright, as well as other relief, against all of the respondents.

[7] On March 25, 1997 Somers J. made a finding that the United Kingdom is the more appropriate forum to deal with the issues raised, and permanently stayed Mr. Folkes’ action. In doing so, Somers J. noted the following matters:

▪ Mr. Folkes composed “Oh Carolina” in 1958 while a teenager in Jamaica;

▪ Mr. Folkes signed an assignment of copyright agreement in favour of Greensleeves with respect to “Oh Carolina” in 1993;

▪ Greensleeves originally became interested in a reggae version of “Oh Carolina”, which was released in the United Kingdom by Orville Burrell using the name “Shaggy”. Greensleeves was told at the time that the song was authored by Cecil Campbell;

▪ after determining that Mr. Folkes was the author of “Oh Carolina” and obtaining the assignment agreement, Greensleeves commenced an action in England to contest Campbell’s claim of authorship;

▪ Mr. Folkes was originally a co-plaintiff in the English action, however he was entered as a defendant following a dispute with Greensleeves concerning the assignment agreement. The proceeding was discontinued as against Mr. Folkes prior to trial and Mr. Folkes gave evidence at trial in support of the plaintiffs’ claim.

▪ on November 4, 1994 the Chancery Division issued an order declaring that Mr. Folkes is the sole author of the song “Oh Carolina” composed in Jamaica in 1958, and that Greensleeves is the owner of the copyright in that song;

[8] By order dated September 10, 1998, this court dismissed Mr. Folkes’ appeal from the order of Somers J. with “one set of costs … in favour of the respondents Greensleeves Publishing Limited, Northridge Music Company and Estate of Henry Mancini; and costs in favour of Virgin Records (Canada) Inc., Global Music Ltd, and Orville Burrell”. The Supreme Court of Canada dismissed Mr. Folkes’ application for leave to appeal from the order of this court on April 1, 1999.

[9] The assessment officer noted the following objections to the assessment of costs raised by Mr. Folkes:

The Objections – The Appellant objects,

To the Bill of Costs of Greensleeves Publishing, Northridge Music and Estate of Henry Mancini

1. That Northridge Music Company does not exist and is therefore fraudulently identified as the publisher of music for the late Henry Mancini. Because of this “fraud”, Northridge Music Company “is not entitled to any monetary or other award it makes or receives in these proceedings” and the Assessment Officer should set aside the order of costs and not allow Northridge Music Company any costs at all.

2. That the assessment hearing was invalid because the Appellant had requested that the Supreme Court of Canada reconsider its decision denying him leave to appeal the order of the Court of appeal for Ontario.

3. That Greensleeves Publishing has committed theft against the Appellant because Greensleeves has garnished his royalties in order to collect the costs fixed by Mr. Justice Somers on the original motion and as a result, no costs award can be made to a solicitor abetting theft and the Assessment Officer is authorized under the Rules of Civil Procedure to refuse costs when such costs arise from reprehensible or dishonest conduct in the proceedings.

4. That the order of the Court of Appeal was fraudulently obtained and as such, no costs can be assessed against the Appellant.

5. That the dockets produced by the solicitors did not indicate the “time of day” when work was done and that a separate docket was not produced for each of the three respondents represented.

6. That costs of the assessment should not have been awarded against him because the hearing was unlawful and fraudulent and should never have taken place.

7. That Rule 58.01 and Section 136 of the Courts of Justice Act give the Appellant the right to record the proceedings or to have a court reporter present and that the Assessment Officer had no authority to refuse to allow a reporter to be present or to allow the Appellant to tape record the assessment proceedings.

To the Bill of Costs of Global Music Ltd.

1. In addition to objecting to the same matters as set out above to the bill of Greensleeves Publishing, the Appellant claims that the time allowed Global Music by the Assessment Officer was excessive.

2. As well, the Appellant claims that Global Music, by abetting the fraudulent behaviour of Greensleeves Publishing, has become a party to theft and fraud.

To the Bill of Costs of Virgin Records (Canada) Inc.

1. In addition to objecting the same matters as set out above to the bill of Greensleeves Publishing, the Appellant objects to the allowance of time for junior counsel attending the appeal hearing.

2. As well, the Appellant claims that Virgin Records (Canada) Inc., by abetting the fraudulent behaviour of Greensleeves Publishing, has become a party to theft and fraud.

To the Bill of Costs of Orville Burrell

1. In addition to objecting to the same matters as set out above to the bill of Greensleeves Publishing, the Appellant objects to the allowance of any costs to all to Orville Burrell.

2. As well, the Appellant claims that Orville Burrell, by abetting the fraudulent behaviour of Greensleeves Publishing, has become a party to theft and fraud.

[10] The assessment officer gave reasons for decision as follows:

Reasons for Decisions on Assessment

1. The Assessment Officer has authority to assess costs awarded pursuant to a court order, rule or statute and has no authority to set aside an order of the Court.

The Law of Costs, 2nd Edition states at page 6-8:

“602.3(3) Where there is a judgment for costs generally, the assessment officer’s duty is to follow any directions as to costs in the formal judgment and assess costs in favour of the party to whom they have been awarded. He or she has no jurisdiction to question the validity of the order by virtue of which costs are being assessed; or to receive evidence to contravene such order; …”

2. An appeal does not stay the assessment of costs, only the collection of those costs.

(Rules of Civil Procedure, Rule 63.)

Rule 63.03(2) – A stay does not prevent the settling, signing and entering of the order or the assessment of costs.

Rule 63.03(3) – A stay does not prevent the issue of a writ of execution or the filing of a writ in a sheriff’s office or land registry office, but no instruction or direction to enforce the writ shall be given to a sheriff while the stay remains in effect.

3. The fact that the Appellant’s royalties have been garnished in order to collect the costs fixed by Mr. Justice Somers’ previous order is of no relevance to this assessment hearing. This assessment hearing was held to assess the quantum of costs awarded to the respondents in relation to an order made in the Court of Appeal.

4. Prior to obtaining the appointment for assessment of costs, a copy of the signed and entered order of the Court of Appeal was filed with the civil litigation office. In his reply to these objections, the solicitor for Greensleeves Publishing et al. states that the Court of Appeal order was approved as to form and content by the Appellant’s solicitors of record and taken out in the usual course. I have no reason to believe otherwise.

5. There is no requirement for counsels’ dockets to indicate the time of day that work was performed. A docket showing the time spent on each item is sufficient. As well, at the assessment hearing, counsel who performed the work gave evidence as to the work performed, what it consisted of and the length of time spent and any items or time not related to the appeal were disallowed.

6. The assessment hearing was conducted with proper authority pursuant to an order of the Court of Appeal. Pursuant to Rule 58.05(6) the Assessment Officer has the authority to award or refuse costs of the assessment to any party. Based on submissions made by all parties at the hearing, costs of the assessment were awarded to the Respondents.

7. At the assessment hearing, the Appellant requested permission to tape record the proceedings or, if that was not possible, to have a court reporter present. In his objection, the Appellant claims that Rule 58.01 gives him not only the right to have a court reporter record the proceedings, but that the rule requires that a reporter be present. I am not certain what rule the Appellant is referring to but Rule 58.01 of the Rules of Civil Procedure only gives a party who is entitled to costs and whose costs have not been fixed by the court, to have those costs assessed. It does not confer upon any party the right to have the proceedings recorded. Although the Appellant did not raise it at the assessment hearing, only referring later to it in his objections, Section 136(2) of the Courts of Justice Act does allow a person to make an audio recording solely for the “purpose of supplementing or replacing handwritten notes.” It is evident to me from the Appellant’s statements made at the assessment and also his statements at page 22 of his objections to Greensleeves Publishing et al., that this was not the reason the Appellant wished to record the proceedings. Absent any consent from counsel attending the assessment, the Appellant’s request was refused. Rule 58.05(4) of the Rules of Civil Procedure gives the Assessment Officer the authority to give directions for the conduct of the proceeding and I did so.

Analysis

Did the assessment officer err by proceeding with the assessment in light of Mr. Folkes’ submissions that the respondents have no basis for resisting his claims?

[11] Mr. Folkes makes several submissions directed at the strength of his claims against the respondents and the erroneous nature of the decision directing that his claims be determined in another forum. It is unclear to what extent these issues were raised before the assessment officer, as they are not dealt with as part of her reasons on assessment. In any event, it was not for the assessment officer to review the underlying basis of Mr. Folkes’ claims. Justice Somers’ order, upheld on appeal, requires that the validity of Mr. Folkes’ claim be dealt with in another forum. It was not for the assessment officer to go behind that determination in assessing costs pursuant to an order of this court.

Did the assessment officer err by proceeding with the assessment without requiring counsel for the respondents to prove that Northridge Music Company exists?

[12] The assessment officer refused Mr. Folkes’ request that she require counsel for Northridge Music Company to produce documents proving its status prior to proceeding with the assessment hearing. She did not err in so doing. Her function was to assess costs in accordance with the order of this court, not to look behind it. Any issue relating to the status of the respondents ought to have been dealt with in the substantive proceeding.

Did the assessment officer err by proceeding with the assessment in light of Mr. Folkes’ claim that Northridge Music Company’s claim for costs amounts to a fraud on the court?

[13] Mr. Folkes claims that Northbridge Music Company is a non-existent entity. He submits that that fact renders the global award of costs in favour of Greensleeves Publishing Limited, Northridge Music Company and Estate of Henry Mancini a nullity, and that all parties who participated in advancing the claim are participating in a fraud on the court.

[14] This ground of appeal cannot succeed for two reasons. First, I am not satisfied that Mr. Folkes has established that Northridge Music Company does not exist. Second, and perhaps more importantly, the assessment officer was required to assess costs in accordance with the order of this court, not to look behind it.

[15] On the first issue, Mr. Folkes claims that Northridge Music Company was dissolved in the 1980’s[^1]. He included a document in the Appeal Book described in the index as “Lexis Nexis (California Secretary of State Corporate Record) faxed June 13, 1997” under a tab entitled “Further Corroborating Evidence”. The copy of this document in the Appeal Book is poor but it appears to disclose that Northbridge Music, Inc. was dissolved on August 22, 1980. It is unclear whether this document was admitted into evidence before the assessment officer. Even if it was, the document states on its face, “[t]his data is for information purposes only. Certification can only be obtained through the office of the California Secretary of State”. The document is accordingly of questionable weight, if admissible at all. Most importantly, however, I fail to see the relevance of this document. “Northridge Music, Inc.” and “Northbridge Music Company” are not, on their face, one and the same.

[16] In his written objections, Mr. Folkes also referred to the fact that counsel for Greensleeves was cross-examined on the assessment hearing about an affidavit in which counsel stated that Northridge Music Company is a “d/b/a” (doing business as) company. Mr. Folkes asserted in his objections that this was a fictitious name or business style of Henry Mancini and that counsel had improperly referred to Northridge as a separate corporate entity.

[17] The appeal book contains an affidavit of counsel for Northridge sworn January 26, 1998, which includes the following paragraphs:

20. The appellant also seeks on this motion an order requiring Northridge “to file a factum clearly explaining its legal status”.

21. Northridge did not initiate this action. It was sued by the appellant.

22. I am advised by … an attorney with the California law firm … that Northridge is a “d/b/a” (doing business as) name used initially by the late Henry Mancini and now used by the Mancini Family Trust to conduct certain business…

[18] The use of the word “Company” in a business name does not automatically denote a corporate entity. By this affidavit, counsel appears to have explained completely the reason Northridge appears in the title of proceedings and the use of the name. To the extent Mr. Folkes alleges that duplicate costs have been awarded to what he describes as a fictitious entity and the Estate of Henry Mancini, he is mistaken. The global award of costs in favour of Greensleeves Publishing Limited, Northridge Music Company and Estate of Henry Mancini means that one set of costs was awarded to these three parties that Mr. Folkes named as defendants.

[19] Second, as already noted, any issue relating to the status of the respondents ought to have been dealt with during the substantive proceeding. This court made a global award of costs in favour of three named parties. It was not for the assessment officer to look behind that order.

Did the assessment officer err by failing to recognize and take account of the impact of the costs award made against him by Somers J. on his ability to pay additional costs?

[20] The appellant submits that the assessment officer erred in finding that the costs awarded by Somers J. are irrelevant to the assessment of the costs on appeal and in failing to recognize that all costs awarded against him impact on his ability to pay.

[21] This submission appears to relate to the assessment officer’s comment that “[t]he fact that the Appellant’s royalties have been garnished in order to collect the costs fixed by Mr. Justice Somers’ previous order is of no relevance to this assessment hearing”. Mr. Folkes interprets this comment as a general finding that the total amount of costs awarded against him is an irrelevant consideration on the assessment of costs of the appeal. I do not agree with Mr. Folkes’ characterization of this comment. In my view, it is a limited finding that the respondents’ collection efforts with respect to the costs awarded by Somers J. were irrelevant to the assessment.

[22] In any event, although the assessment officer may have been entitled, in the exercise of her discretion, to take account of the global amounts of costs awarded against the appellant in assessing the costs of appeal, she did not err by failing to do so, or by failing to refer to this factor specifically in her reasons.

Did the assessment officer err in failing to exercise her authority to refuse to assess costs based on Mr. Folkes’ submission that the justice of the case demands it?

[23] Mr. Folkes submits that although the assessment officer may have been entitled to proceed with the assessment based on the order of this court, she erred in doing so in light of fraudulent actions of the respondents in pursuing the claim for costs. Mr. Folkes has not demonstrated fraudulent conduct on the part of the respondents. There is no merit to this ground of appeal.

Did the assessment officer demonstrate bias by falsely describing his objection that Greensleeves had stolen royalties from him as an objection that Greensleeves had garnished royalties owing to him in order to collect the costs fixed by Somers J.?

[24] As part of his written objections to the assessment Mr. Folkes claimed that Greensleeves Publishing improperly applied portions of his share of royalties from “Oh Carolina” on account of the costs order made against him by Somers J. As already noted, the assessment officer found that “[t]he fact that the Appellant’s royalties have been garnished in order to collect the costs fixed by Mr. Justice Somers’ previous order is of no relevance to this assessment hearing”. Mr. Folkes submits that the assessment officer not only erred by failing to give effect to that submission, but that in describing Greensleeves actions as “garnishment” she demonstrated bias against him. He says “[s]he deliberately, in her attempt to support the Respondents in their criminal act of theft, wrote a clear falsehood, thereby committing a dereliction of duty and performing a miscarriage of justice.”

[25] I see no basis for interfering with the assessment officer’s finding that the actions of Greensleeves were irrelevant to her task in assessing the costs of appeal. Her task was to determine the quantum of costs properly flowing from this court’s order. The conduct referred to does not relate to the respondents’ conduct of the underlying appeal. The assessment officer had no mandate to inquire into the propriety of other financial dealings between the parties.

[26] Although it appears that the assessment officer may have mis-described Greensleeves’ actions, I find no foundation in the record before me for Mr. Folkes’ bald assertions of deliberate impropriety.

Did the assessment officer err in proceeding with an assessment in the face of an objection that the formal order of this court was obtained on the basis of a fraudulently backdated order?

[27] Mr. Folkes claims that counsel for Greensleeves advised him in a letter dated January 26, 1999 that the “Endorsement Order” of this court was not in existence at the time it is claimed to be made. He submits “it was fraudulently backdated … to appear as being one and the same Order as the Endorsement, issued previously so as to allow the Respondents to receive costs against the Appellant.”

[28] The January 26, 1999 letter is reproduced in the Appeal Book. The copy is very poor. The relevant portions appear to read as follows:

As previously explained to you, the taking out of the Order of the Court of Appeal and the forwarding of a copy of the Order to you was done in accordance with ordinary practice.

As pointed out to you, the Order was not in existence from September 10, 1998. It was issued January 8, 1999, as noted in our letter of January 13, 1999.

[29] Mr. Folkes’ submission is confusing. It appears that he has misconstrued the statement that “the Order was not in existence from September 10, 1998” to mean that this court’s endorsement was not in existence on September 10, 1998. That is not what the sentence he relies on in the January 26, 1999 letter means. The sentence immediately following makes it clear that the order referred to is the formal order of this court.

[30] I find no foundation in the record for Mr. Folkes’ assertion that an order of this court was fraudulently backdated. The date in the upper right corner of this court’s endorsement is clearly indicated to be September 10, 1998. It is customary that the formal order of the court arising from an endorsement is issued subsequently. There is no merit to this ground of appeal.

Did the assessment officer err in proceeding with an assessment in the face of an objection that the formal order of this court directing an assessment was obtained based on counsel’s approval of the form of order at a time when Mr. Folkes was no longer represented?

[31] Mr. Folkes indicates that counsel for the respondents acted improperly in endorsing the approval of Mr. Folkes’ counsel on the formal order of this court at a time when Mr. Folkes had indicated he intended to proceed on his own behalf. I reject this submission. In Chrysler Credit Canada Ltd. v. 734925 Ontario Ltd. (1991), 5 O.R. (3d) 65 Master Peppiatt noted that counsel have a professional obligation to the court and other counsel to approve an order to which there is no valid objection even after ceasing to act. I agree with his conclusion. To hold otherwise would create an inappropriate impediment to the proper processing of orders of the court.

Disposition

[32] For the reasons given, this appeal is dismissed with costs to the respondents. Counsel for the Respondents may deliver a bill of costs with accompanying written submissions within 15 days. Mr. Folkes’ may deliver a written response within 15 days thereafter.

Released: April 9, 2002 “JS”

“Janet Simmons J.A.”

[^1]: Mr. Folkes states in his factum that this occurred in 1985 whereas in his written objections he said it was 1981.