Date: 20010402
Docket: T-2515-97
Neutral citation:2001 FCT 278
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
-and-
ASSOCIATED FITNESS INC., c.o.b. as. EVERY
BODIES FITNESS and DEAN A. BOMBARDIER
Defendants
REASONS FOR RECOMMENDATIONS ON A REFERENCE
[1] I was appointed to conduct a reference in this matter to determine the damages and profits to which the Plaintiff is entitled by reason of a judgment signed against the Defendants in default of defence.
[2] The judgment ordered the Plaintiff to serve a statement of issues setting forth the issues which needed to be determined in the Plaintiff's view on the reference and it also required the Defendants also to file a statement of the issues they felt relevant. The judgment further provided that the Defendants should serve an affidavit of documents including but not limited to financial statements, general ledgers, performer and agency contracts, cash receipts journals, cash disbursements journals, cheque stubs, general journals and cancelled cheques for the periods in issue and thereafter to produce such documents on request by the Plaintiffs.
[3] There was also a provision in the judgment that if the Defendants defaulted on the requests to serve a statement of issues and the other materials, the Plaintiff would be entitled, upon application, which might be made ex parte, to a reference hearing in Toronto which might be held without notice to the Defendants at which hearing, the referee would determine the amounts referred to in the judgment by way of affidavit evidence filed by the Plaintiff.
[4] The Defendant defaulted and the Plaintiff proceeded before me on affidavit evidence. The unlicenced playing of music which gave rise to the action was used in fitness activities and thus Tariff 19 applied. Tariff 19 provides that the annual fee for each room in which performances of music take place shall be the average number of participants per week multiplied by $2.14.
[5] The evidence of the Plaintiff's field representative was that the Defendants used a room seven days a week and had 22 classes a week in that room. He also swore that there were at least 10 persons on average in a class. He thus concluded there were 220 participants a week. Given the unavailability of the Defendants' records, I considered the figures thus calculated to be a proper basis for calculating licence fees due and I recommended general damages based on such a calculation.
[6] With regard to profits, the books not having been produced, it was necessary to proceed on a comparative rather than an actual basis. The Plaintiff had caused a study to be made of fitness clubs across Canada of various types. The profits of each club were analysed to determine how much of the income should be attributed to each aspect of the programs offered by the club and having deducted estimated incremental expenses, he derived the profit attributable to the use of music. It was apparent that the profit in each case fell in a range between 18 and 24 times the licence fees. I therefore recommended that profits derived from the playing of music in fitness activities described in Tariff 19, be estimated by multiplying the licence fees by 21. The actual calculations in this particular instance are shown in my report on a reference dated the 20th of March, 2001.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
April 2, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2515-97
STYLE OF CAUSE: SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
-and-
ASSOCIATED FITNESS INC., c.o.b. as. EVERY BODIES FITNESS and DEAN A. BOMBARDIER
Defendants
DATE OF HEARING: TUESDAY, MARCH 20, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR RECOMMENDATIONS
ON A REFERENCE BY: GILES A.S.P.
DATED: MONDAY, APRIL 2, 2001
APPEARANCES BY:
Ex parte matter: Ms. C. Stanley, and
Ms. L. Trabucco
For the Plaintiff
SOLICITORS OF RECORD: Society of Composers, Authors & Music Publishers
Legal Department
41 Valleybrook Drive
Don Mills, Ontario
M3B 2S6
For the Plaintiff
FEDERAL COURT OF CANADA
Date: 20010402
Docket: IMM-2515-97
Between:
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
-and-
ASSOCIATED FITNESS INC., c.o.b. as. EVERY BODIES FITNESS and DEAN A. BOMBARDIER
Defendants
REASONS FOR RECOMMENDATIONS
ON A REFERENCE