Society of Composers, Authors and Music Publishers of Canada v. Landmark Cinemas of Canada Ltd.

A-194-03

2004 FCA 57, Létourneau J.A.

5/2/03

13 pp.

Joinder--Appeal from Trial Division decision (T-633-92) dismissing appeal from Prothonotary's order granting motion made by Society of Composers, Authors and Music Publishers of Canada (SOCAN) to amend statement of claim in order to add new defendants--Motions Judge erred in concluding could not exercise Prothonotary's discretion de novo-- Whether amendments should have been allowed--As to SOCAN's 1992 election to bring action solely against defendant Landmark, legal doctrine of election requires person to make choice between two available mutually exclusive rights--Rights to sue Landmark and new defendants not mutually exclusive, as all defendants could be sued for infringing activities, either individually or jointly on account of joint liability--Legal doctrine of election has no application here-- Delay in suing new defendants could be pleaded as defence, would not justify refusing amendments if they are necessary in order that matters be effectively and completely determined by court--Appellants questioned manner in which Prothonotary proceeded when not satisfied with evidence-- Prothonotary offered parties possibility of adjournment, but parties declined and insisted matter proceed as it was-- Notwithstanding that, Prothonotary ordered adjournment of motion against will of parties--Unusual for judge or Prothonotary to, proprio motu, impose adjournment on parties wanting to proceed--Unusual to issue direction to that effect to moving party although power itself to issue directions not contested--Case management judges' or Prothonotaries' relative immunity from review not authorizing them to do what they want when they want--In terms of costs, efficiency and expeditiousness, better to add new defendants now than to force multiplicity of new proceedings--Adjournment understandable and in interest of justice--No error in exercise of Prothonotary's discretion--Appeal dismissed.