CITATION: John v. Richards, 2017 ONSC 6307
COURT FILE NO.: CV-16-0102-00
DATE: 2017 10 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Darren John
Self-represented
- and -
Jim Richards, Bell Media Inc., Bell Media, Newstalk 1010, The Showgram, and CFRB
P. Jacobsen and J. Lefebvre, Counsel for the Defendants
HEARD: 4 October 2017
REASONS FOR JUDGMENT
Trimble J.
[1] The defendants bring this motion for summary judgment.
[2] For reasons that follow, summary judgment is granted.
Background:
[3] The plaintiff, Mr. John, is a rap artist who performs under the name of "Avalanche the Architect". His rap songs can be purchased from a number of pay sites. His music is also available to watch or listen on YouTube and other like websites.
[4] The defendant, Jim Richards, is a radio talk show host whose show, called "The Showgram", airs on CFRB 1010 in Toronto. Mr. John appeared on that radio program on 2 July, 2015. It is from that interview that this lawsuit springs. Mr. John sues CFRB for copyright infringement, theft and negligence with respect to his interview with Mr. Richards. Bell Media and Bell Media Inc. are the parent companies of CFRB.
The Interview:
[5] Mr. Richards interviewed Mr. John because Mr. John had been the subject of a Toronto Star article on 30 June 2015 which reported that Mr. John had been convicted of threatening to cause bodily harm to his former music promoter. The threatening words were contained in the lyrics of Mr. John's rap song "Got Yourself a Gun". The Star had written several times about Mr. John's pending criminal charges. Mr. Richards wanted to interview Mr. John about the charges and their impact on freedom of speech and the limits of artistic license.
[6] At the beginning of the interview, Mr. Richards played a brief clip from one of Mr. John's rap songs, "The Dream Catcher". A second very short clip of that song was played during the course of the interview. The clips totalled approximately 18 seconds of the song. Mr. Richards opted not to play "Got Yourself a Gun" because of the conviction. Instead, Mr. Richards chose "The Dream Catcher" as it was not associated with the criminal charges yet gave a flavour of Mr. John's music.
The System for Paying Royalties to Artists:
[7] The Copyright Act sets out a detailed process by which artists' works are protected, and royalties collected and paid. As set out in Rogers Communications Partnership v. Society of Composers, Authors and Music Publishers of Canada (SOCAN), 2016 FCA 28, para. 8 and 9, leave to appeal to S.C.C. dismissed 2016 CanLII 41065:
[8] SOCAN is a collective society, as defined in section 2 of the Copyright Act, R.S.C. 1985, c. C-42 (the "Copyright Act"). It carries on the business of collective administration of copyright, as defined in subsection 3(1) of the Copyright Act, for the benefit of persons who authorize it to do so on their behalf. Its business includes granting licences for the public performance and communication to the public by telecommunication in Canada of dramatico-musical and musical works. In its business, it acts on behalf of Canadian music creators and publishers who hold the copyright in relation to a work (the "Rightsholders") and who authorize it to do so.
[9] In general terms, Rightsholders enter into arrangements with collective societies, such as SOCAN, so that, on an economical and efficient basis, the unauthorized use of their works can be prevented and compensation for the authorized use of their works can be obtained. The collective society provides "licenses" to persons wishing to use the performance rights in the works under its administration and collects fees for such use by those persons. After deducting agreed upon costs, the collective society makes distributions to the Rightsholders.
[8] Under s. 67.1 of the Act, SOCAN proposes tariffs to the Copyright Board, which sets them. At the time of Mr. Richards' interview with Mr. John, SOCAN granted licences to those who wanted to us SOCAN's artists' artistic output. With licenced radio stations, each was assessed as to its level of use of SOCAN registered material, and based on that assessment, the station paid a royalty of a defined percentage of the station's gross monthly revenue. The station was required by the Copyright Board to document which SOCAN registered songs it played, and maintain its financial records and song lists for defined periods.
[9] As a corollary of paying a licence fee, s. 68.2(2) of the Act says that no action for infringement lies against anyone who communicates the work by broadcasting it when the broadcaster has paid the royalty: see E.S.A. v. SOCAN, 2012 SCC 34, para. 12-25.
[10] As part of its business model, when an artist registers his work with SOCAN, it takes an assignment of copyright from the artist and protects the artist's copyright and work against those who seek to infringe those rights by using the work without paying the royalty: see Society of Composers, Authors and Music Publishers of Canada v. 960122 Ontario Inc., 2003 FCA 256, para. 1 and 10.
[11] It is common ground that "The Dream Catcher" was a song registered with SOCAN. Mr. John did not say whether he entered into the assignment with SOCAN with respect to "The Dream Catcher". I draw the inference that he did.
[12] The only difference between the parties with respect to CFRB's paying royalties is the process by which royalties are paid. Mr. John says that CFRB was obliged to notify SOCAN of CFRB's intention to use "The Dream Catcher" so that Mr. John would be paid a royalty.
Mr. John Objects:
[13] On September 23, 2015, almost three months after the interview with CFRB, Mr. John emailed CFRB and complained about its use of "The Dream Catcher". That email, it in its entirety, reads:
I am writing again to complain about jim Richards, him and his producer. Donnie coulter asked if I would be on the show gram I agreed. While was being interviewed the complainant [in the criminal proceeding] called in and they put her on, I was not aware that she was going to be on or I would have refused to do the interview. Seeing as the trial is still going on and I am on bail I'm not to have any communication, direct or indirect, with the complainant. The complainant made some comments which I was asked to respond to which I did and in the middle of the responding I could see jim on the live stream podcast signalling the engineer to cut off my mic or call off and then has the nerve to say he had to keep me in check and that the court came to the right decision in finding me guilty which is not correct because the trial is not done and the last charge is going to be stayed due to some legal issues he would never understand but none the less it was clear his position and that's great but he defamed my character by the inference that I did or said something that he had to "keep me in check" by disconnecting my call. The other issue is that jim richards played a song of mine called "The Dream Catcher" which featured another artist and was in no way related to the charges and he did not have permission to play the song and did not pay for the song and it is clear that any unauthorized reproduction or dissemination of my material is prohibited and it is marked on my video and my music is not offered any where for free I am also attaching a disclaimer for the song in question and the you tube link which show the date the song was posted which is relevant because it shows how long that disclaimer was on the song four. The remedy I am seeking is a public apology from jim Richards on his show a clarification on his live show that the song he played had nothing to do with the charges and credit to the other artist on the track name is "Cappadonna" from the Wu Tang Clan and a written apology to my satisfaction. Failure of me receiving this will leave me with no other option but to sue jim Richards, CFRB 1010 AM bell media and its affiliates. Darren John. (emphasis added)
[14] The latter half of the email is relevant to this law suit.
[15] In a series of emails, Mr. John and Bell media's representative, Nicole Nanjad corresponded and negotiated the "clarification" that would be made. On November 12, 2015, at 9:49 a.m., Ms. Nanjad proposed wording to Mr. John. He responded at 3:52 p.m. that day stating that he was only prepared to agree to a portion of Ms. Nanjad's proposed clarification which he reworded slightly. On November 18, at 7:44 a.m., Ms. Nanjab responded, said that she was happy to continue to try to work this out with Mr. John, but said that his revision did not make sense. In the second paragraph of her email she proposed a solution for revision which said:
During the summer, we aired a show about a rapper, Avalanche the Architect, and charges against him in connection with the lyrics of one of his rap songs. The matter is still before the courts. During the broadcast, we also aired another song by the same artist that had nothing to do with the charges, but was representative of his music. The song we played was Dream Catcher and along with Avalanche the Architect, the other artist on the track was Cappadonna from the Wu-Tang Clan. We apologize for any misunderstanding this may have caused.
[16] At 11:09 p.m. that day, Mr. John responded "If you read my email the second paragraph says exactly what you are offering the air. This is fine and I will be listening Friday thank you" (emphasis added).
[17] The agreed-to wording was read on Mr. Richards show on 20 November, 2015. At Mr. John's request, it was replayed on 21 January, 2016.
The Lawsuit:
[18] Unknown to CFRB, when Mr. John requested that it repeat the agreed-to clarification, he had already issued his Statement of Claim. Mr. John emailed a copy of the Statement of Claim to Ms. Nanjad at 1:59 a.m. on January 22, 2016. His covering email said:
Attached is my statement of claim after further review and consultation with my lawyer we agreed that jim Richards and 1010am are liable for copyright infringement, and the pre-recorded message was not satisfactory. According I have filed a statement of claim I have personally serve 1010 CFRB the other parties will be soon served as well. The claim has been filed I Brampton Superior Court.
[19] The Statement of Claim was issued on January 8, 2016. In it Mr. John claims general and special damages in the sum of $70,000, and in paragraph 5 of the Statement Claim he describes the circumstances giving rise to the claim.
[20] In paragraph 6 of the Statement of Claim Mr. John particularizes the claims he advances. Most of these relate to copyright infringement such as downloading "The Dream Catcher" from YouTube, and not reporting CFRB's use of "The Dream Catcher" to SOCAN so that Mr. John could be paid a royalty. He claims that CFRB played the song without permission and courted the risk of penalties because of the viewership it would gain from having a high profile guest on the show and playing his music.
[21] The preamble in the Statement of Claim to the particularization of allegations against the defendants reads "The Plaintiff states that his intellectual property has been stolen, and the defendant infringes copyrights and acted negligently as follows:"
[22] Most of Mr. John's allegations relate to the defendants' infringement or theft of intellectual property such as downloading music from YouTube and in doing so ignoring the disclaimer that he placed at the beginning of the video for "The Dream Catcher" saying it could not be downloaded.
[23] He also particularizes claims of negligence in that the defendant failed to read the disclaimer on his YouTube video of "The Dream Catcher" before downloading it, negligently played the song on the radio show about Mr. John's criminal charges arising from a completely different songs, and chose "The Dream Catcher"over the 20 other songs available on YouTube which were not subject to a disclaimer. Finally, Mr. John alleges that Jim Richards intentionally tried to sabotage "The Dream Catcher's" success by playing it as it was played.
[24] In paragraph 7 of the Statement of Claim, Mr. John describes the losses he has suffered including economic losses pertaining to "The Dream Catcher" arising from loss of radio play time, and the fact that venues did not permit him to perform the song thereby impairing his ability to perform "The Dream Catcher".
[25] In paragraph 8 of his Statement of Claim, Mr. John says "the injuries were accompanied by…" and lists a series of physical and emotional complaints common in personal injury actions. Included in this listing of "Nonpecuniary general damages" is the inability to participate in social, household, recreational, athletic and employment activities. He claims a loss of income as well as other pecuniary damages.
Result:
[26] For the reasons that follow, I find that there is no issue in this case that requires a trial. This is an appropriate case for summary judgment. Summary judgment should issue dismissing the action.
The Law on Summary Judgment:
[27] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada discussed when summary judgment can be granted on the basis that there is "no genuine issue requiring a trial," as in Rule 20.04(2)(a). The Court also considered when it is against the "interest of justice" for the new fact-finding powers in Rule 20.04(2.1) to be used on a summary judgment motion.
[28] Rule 20.04(2) provides that the Court shall grant summary judgment if the Court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[29] Subsection 2.1 provides that when determining whether there is a genuine issue requiring a trial, the Court may weigh the evidence, evaluate the credibility of a deponent, and draw reasonable inferences from the evidence to the extent possible from a paper record. Under subsection 2.2, if necessary, a judge may order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[30] Under what circumstances can summary judgment be granted? The Supreme Court of Canada stated, at para. 49:
There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[31] The overarching issue to be answered is whether summary judgment will provide a fair and just adjudication. The Court said that "the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute." If the judge is not confident that she can find the necessary facts and resolve the dispute on the motion even using the special powers under Rule 20.02 (2.1) and (2.2), then the matter must proceed to trial.
[32] The Supreme Court noted: "The interests of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers – and the purpose of the amendments – would be frustrated." Therefore, on a motion for Summary Judgment, the judge must compare the advantages of proceeding by way of summary judgment and proceeding by way of trial, including the relative cost and speed of each medium, as well as the evidence that is to be presented and the opportunity afforded by each medium to properly examine it. The Supreme Court noted that, "when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so." However, the inquiry must go further, and must also consider the consequences of the motion in the context of the litigation as a whole.
[33] In its approach to a motion for summary judgment, the Supreme Court stated that the following analysis should apply:
The judge should determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-findings powers. There will be no genuine issue requiring trial if the summary judgment process provides the trial judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
If there appears to be a genuine issue requiring a trial, the judge should determine if a trial can be avoided by using the powers under Rule 20.04(2.1) and (2.2). The motion judge may, at his discretion, use those powers unless it is against the interest of justice to do so. It will not be against the interest of justice if use of the powers will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[34] Hryniak left undisturbed the pre-Hryniak law with respect to the obligations of a respondent on a summary judgment motion. S/he must still put his/her best foot forward, presenting sworn evidence of specific facts showing that there is a genuine issue requiring a trial, or, to put it another way, that there is an issue that has a real chance of success: see Canadian Imperial Bank of Commerce v. Mitchell, 2010 ONSC 2227 (Ont. S.C.J.), Guarantee Co. of North America v. Gordon Capital (1993), 3 S.C.R. 423, and Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.
[35] Without detracting from Hryniak, the parties have the duty to place all available, relevant evidence before the court to consider on the motion. The court must determine whether the evidence before it, including evidence obtained through the additional powers under Rule 20.04, is sufficient to make the findings needed to arrive at a final determination of the issue. If the answer is yes then judgment can be made on the summary motion. If not, a trial or some procedure crafted under Rule 20.04 is required.
The Parties' Positions:
[36] The defendants say that:
They complied with part seven of the Copyright Act and the tariff set by the Copyright Board with respect to the payment of royalties to Mr. John, for the payment of royalties to SOCAN when it played "The Dream Catcher";
In the alternative, their use of "The Dream Catcher" during the interview with Mr. John is protected by fair dealing;
The tort of negligence is not a reasonable cause of action as the defendant did not owe Mr. John the duty of care to obtain his approval prior to broadcast in the song in question and did not cause any damages to Mr. John; and
Mr. John and CFRB settled any claim he might have had against the defendants by way of an on-air clarification and the settlement agreement should be enforced by this Honourable Court under Rule 49.11.
[37] Accordingly, there are no issues that require a trial.
[38] Mr. John says that there are issues which require a trial. These are:
The defendants failed to pay royalties and failed to notify SOCAN of its intention to play "The Dream Catcher" so that SOCAN could pay Mr. John a royalty;
There was no settlement with CFRB. There was no written agreement that the parties signed and no release of all causes of action that is enforceable under Rule 49. If there was an agreement, he was self represented and did not have the benefit of legal counsel at the time.
Mr. Richards and CFRB stole "The Dream Catcher" by downloading it from YouTube notwithstanding the disclaimer attached to the song that warned YouTube viewers not to download.
Analysis:
[39] The following issues arise in this motion:
Is this a case in which the Court can grant summary judgment?
Were royalties paid and if so, was there "theft"?
Were the Defendants Negligent?
Was there a settlement?
1. Is this a case in which the Court can grant Summary judgment?
[40] Yes. I find that I can do justice between the parties, fairly, and reach a just result, having a mind to proportionality, based on this written record. The Defendants have filed a complete record of evidence addressing Mr. John's complaints. Mr. John's record contains only an Affidavit, which is deficient. He has failed to provide any admissible evidence in support of any of the claims he brings.
[41] Why do I say this? There are a number of reasons, including:
a) Paragraphs 2, 3, the latter half of 5, and paragraphs 7, 9, 10, 12, 13 and 15 are statements of position and argument. They contain no facts.
b) Paragraphs 1, the first half of 5, and paragraphs 6, 8, 11 and 14, are bald statements of fact, without substantiation. On their face, it is clear that these statements are made based on information and belief based on information Mr. John obtained from someone or somewhere else.
c) Paragraphs 9, 13 and 15 contain quotes apparently from cases or literature, statute, or internet sources without proper citation or reference to establish the source of the quote or whether in was current or in force at the time relevant in this action.
d) Mr. John refers in his Affidavit, and attaches to it, a screen shot of the disclaimer he says he attached to his YouTube version of "The Dream Catcher" at the time that he says the Defendants downloaded it. It is not proper evidence as it is not marked as an exhibit to his affidavit and he does not swear to its truth or authenticity. Mr. John is an experienced self-represented litigant and knows or ought to know that evidence is put before a Court on a motion by way of Affidavit containing statement of facts, and properly sworn exhibits. In any event, the disclaimer's print date is "9/25/2017". There is no citation or information in the screen shot to indicate that it was in effect at the relevant time.
[42] Based on the foregoing, alone, the summary judgment motion must succeed. Mr. John failed to lead any properly admissible evidence to show that there is any issue that requires a trial, or that requires the use of the special powers under Rule 20.04. He has not put his best foot forward.
2. Were royalties paid and if so, was there "theft"?
[43] Based on the admissible evidence about how the royalties system works under the Copyright Act, I find that the Defendants did all that was required of them to be allowed to play the song "The Dream Catcher". CFRB was a licencee with SOCAN It submitted its list of songs it played. It submitted its royalty calculated on the percentage assigned to it by SOCAN "light user" of SOCAN registered songs. I find that Mr. John is mistaken in his view of what CFRB was required to do in order for him to receive his royalty.
[44] Having found that CFRB did what was required of it to ensure that Mr. John was paid his royalty, it follows that there can be no theft or appropriation of his intellectual property, or violation of his or anyone else's copyright in "The Dream Catcher".
3. Were the Defendants Negligent?
[45] The Defendants say, in effect, that the Copyright Act is a complete code and that Mr. John cannot seek a remedy in negligence when he has no remedy under the Copyright Act. They cite in support of this proposition Compo v. Blue Crest Music, 1979 CanLII 6 (SCC), [1980] 1 S.C.R. 357, wherein Estey, J. says at pp. 372 to 373 that copyright law is neither tort nor contract law, but is statutory law, and that it neither cuts across existing rights in property or conduct, nor falls between rights and obligations heretofore existing in the common law. Rather, it creates rights and obligations upon the terms of the statute.
[46] I disagree. Estey, J. does not say that the Copyright Act creates a complete code. Indeed, he declines to make such a broad statement. He says "Courts in this technical field of copyright have found it prudent to make their judicial answers congruent with the legal issues raised in the proceeding at hand leaving, so far as possible, analogies, examples and hypothetical questions to another day. I propose to follow this principle…."
[47] Mr. John's claim in negligence fails, rather, because he leads no admissible evidence that he sustained any damage or injury other than the loss of a royalty, which is a matter for the statute, not negligence law.
4. Was There a Settlement?
[48] Having decided that there is no infringement of Mr. John's intellectual property rights, and no sustainable cause of action in negligence, it is unnecessary to consider whether any action was settled. I do so in the event that my first two conclusions are incorrect.
[49] On the evidence before me, I find that Mr. John entered into a settlement, ending any claim he might have against the Defendants in copyright or defamation. Therefore, even had I concluded that the Defendants had breached Mr. John's copyright in "The Dream Catcher" or that he had a claim in negligence, I would still have granted summary judgment.
[50] The law concerning settlement is set out in 829276 Ontario Ltd v. 6711677 Canada Inc., 2013 ONSC 2272 and Sahota v. Sahota, 2016 ONSC 314. There must be a mutual intention to make a legally binding contract, and agreement must be reached on all the essential terms. The intention of the parties is divined not from post-agreement statements by the parties of their intent at the time of entering into the contract; rather, it is gleaned from the words used by the parties in the agreement, viewed objectively. Since the Courts want to encourage settlement between parties, the Court should not be quick to find a lack of certainty in any of the agreement's essential terms.
[51] In his email of 23 September, 2015, Mr. John claimed that Mr. Richards and his producer defamed him and played "The Dream Catcher" without permission. He said "The remedy I am seeking is a public apology from jim Richards on his show a clarification on his live show that the song he played had nothing to do with the charges … and a written apology to my satisfaction. Failure of me receiving this will leave me with no other option but to sue jim Richards, cfrb 1010am bell media and its affiliates."
[52] It is clear by this wording that Mr. John intended that in exchange for a satisfactory clarification and apology, he would not sue for defamation or for infringement of copyright. The parties negotiated wording to which Mr. John agreed, unequivocally, in his email of 18 November, 2015, 11:09 p.m. While he was self-represented at the time, he never expressed any reservation, sought time to consider and reflect on his decision, or asked to consult with a lawyer before the agreement became binding.
[53] Mr. John submitted that he never agreed to resolve anything. He submits that there was no settlement as there was no signed release. Further, he says that he should not be bound by any agreement as he did not have legal counsel at the time. Mr. John points to his email of 22 January, 2016, as evidence that in November, 2015, he never intended to resolve anything with the Defendants. By his January 2016 email, however, Mr. John confirms that there was a settlement, but that "…after further review and consultation with my lawyer…" over two months, he decided that the agreement he made was no longer satisfactory.
[54] That there is no formal release is a factor to consider in determining whether there was a mutual intent to settle, and agreement on the essential terms of the agreement. Looking at all the circumstances, however, it is clear that in return for CFRB airing the agreed-to wording (indeed, it aired it a second time at Mr. John's request), there was a mutual intention to settle. There was offer, acceptance and consideration. That he would not exercise his cause of action in defamation or copyright infringement thereafter was implicit in the bargain he made.
[55] That Mr. John did not have legal advice is also of no moment. He is of age. He is legally competent. There was no evidence that he was operating under any disability or impairment at the time he made his agreement. He was able and entitled to make legally enforceable contracts, whether good contracts or bad, with or without legal advice. He chose to make a contract without legal advice. It is clear that, two months later, after seeking legal advice and requesting that the agreed-to statement was aired a second time, he thought that he made a bad bargain and wanted to resile from it.
Costs:
[56] The Defendants are presumed entitled to their costs. I will address costs in writing, with submissions not to exceed three double spaced pages, excluding bills of costs, cases and other attachments. The Defendants are to be served and filed not later than 4:30 p.m., November 3, 2017 and Mr. John's not later than 4:30, November 17, 2017.
Trimble J.
Released: October 20, 2017
CITATION: John v. Richards, 2017 ONSC 6307
COURT FILE NO.: CV-16-0102-00
DATE: 2017 10 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Darren John
Self-represented/Responding Party
- and –
Jim Richards, Bell Media Inc., Bell Media, Newstalk 1010, The Showgram, and CFRB
Defendants/Moving Parties
REASONS FOR JUDGMENT
Trimble J.
Released: October 20, 2017