A-306-74
Société pour l'administration du Droit de Repro
duction Mécanique des auteurs, compositeurs et
éditeurs (S.D.R.M.) (Plaintiff) (Appellant)
v.
Trans World Record Corp. (Defendant)
(Respondent)
Court of Appeal, Jackett C.J., Pratte J. and Hyde
D.J.—Montreal, November 5 and 6, 1975.
Copyright Practice — Appeal against refusal to order
delivery into Court of materials in dispute pending outcome of
proceedings — Federal Court Rule invoked to give special
effect to s. 21 of Copyright Act Appeal dismissed without
costs because of defendant's responsibility for unnecessary
work Copyright Act, R.S.C. 1970, c. C-30, s. 21 -- Federal
Court Rule 470(1).
Appellant claims copyright in certain musical works and
sought an order in the Trial Division for delivery into Court of
records, tapes, recordings and matrices of these works pending
the outcome of the trial. Appellant claims ownership of these
articles by virtue of section 21 of the Copyright Act, but sought
to have them seized under Rule 470(1) of the Federal Court.
Held, the appeal is dismissed. As in the case of an interlocu
tory injunction, the Trial Judge must consider the balance of
convenience and Rule 470(1) cannot be invoked to give special
effect to section 21 of the Copyright Act. No costs will be
awarded in view of the fact that the respondent caused unneces
sary work to be done by challenging the Court's jurisdiction to
hear this action, which question could not be decided at this
stage of the proceedings.
APPEAL.
COUNSEL:
Serge Tremblay and R. Reynolds for
appellant.
David M. Bernstein and Y. A. G. Hynna for
respondent.
SOLICITORS:
Martineau, Walker, Allison, Beaulieu,
MacKell & Clermont, Montreal, for
appellant.
Bernstein, Feifer, Beaupré & Savoyan, Mon-
treal, and Gowling & Henderson, Ottawa, for
respondent.
The following is the English version of the
reasons for judgment of the Court delivered orally
by
PRATTE J.: Appellant claims to hold copyrights
on a number of musical works. It brought an
action against respondent accusing it of having
illegally manufactured records and magnetic tapes
reproducing these works. At the commencement of
the proceedings it made a motion requesting that
these records and tapes made by respondent, and
the matrices which were used to manufacture
them, be seized before judgment and remain in the
custody of the Court until final judgment is ren
dered in the action which it brought against
respondent. Appellant claims that this property
which it requested be seized belongs to it under
section 21 of the Copyright Act'. This motion was
dismissed in the Trial Division, and it is this
decision which is being appealed here.
Appellant's motion was filed under Rule 470(1),
which reads as follows:
Rule 470. (1) Before or after the commencement of an action,
the Court may, on the application of any party, make an order
for the detention, custody or preservation of any property that
is, or is to be, the subject-matter of the action, or as to which
any question may arise therein, and any such application shall
be supported by an affidavit establishing the facts that render
necessary the detention, custody or preservation of such prop
erty and shall be made by motion upon notice to all other
parties.
Counsel for the appellant maintained that the
motion was also made under the Code of Civil
Procedure of the Province of Quebec. This misun
derstanding must be dispelled at the outset. In the
cases mentioned in Rule 5 the Court may deter
mine the procedure to be followed by analogy to
the procedure in force in a province; however, this
is not a case of the type contemplated by Rule 5,
since there is no gap in the Rules of the Court
concerning this matter. There is therefore no
reason to refer to the provisions of the Code of
Civil Procedure, or to the decisions interpreting
them.
Counsel for the appellant maintained that the
Trial Judge was in error in deciding this motion by
taking into consideration an affidavit filed by
respondent in support of other proceedings. It is
' R.S.C. 1970, c. C-30.
not necessary to comment on this argument. It
seems clear to the Court that in order to reach a
decision in this case the Trial Judge should first
have considered the chances for success of the
action brought by appellant; if he concluded there
was a reasonable doubt that this action would
succeed, the Judge should then have considered
the balance of convenience (see as to this the
passage in the third edition of Halsbury's cited by
Cartwright C.J. in Lido Industrial Products Ltd.
v. Melnor Manufacturing [ 1968] S.C.R. 769 at
771). If we approach the problem in this way by
considering only the evidence submitted by appel
lant and without taking into account the affidavit
to which, according to appellant, the Trial Judge
should not have referred, it seems to us that appel
lant's motion should have been dismissed. It should
be borne in mind that Rule 470, which is in this
respect similar to the Rules dealing with interlocu
tory injunctions, is a provision the sole purpose of
which is to maintain the status quo by ensuring
the preservation of property that is the subject-
matter of an action. This Rule may not be used to
give a special effect to section 21 of the Copyright
Act, as appellant would like to do.
For these reasons the appeal will be dismissed. It
will, however, be dismissed without costs because
it seems (see the judgment of Addy J. at page 365
of the appeal record) that solely as the result of a
mistake by counsel for the respondent, a large part
of the parties' factums and probably of the pre
paratory work for the hearing was devoted to
discussion on the jurisdiction of the Court in this
matter, which was a pointless discussion since it is
clear that this question cannot be raised at this
stage of the proceedings.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.