Date: 20010530
Docket: T-633-92
Neutral Citation: 2001 FCT 534
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
- and -
LANDMARK CINEMAS OF CANADA LTD.
Defendant
(Delivered from the bench at Edmonton,
Alberta, on May 23, 2001)
[1] This is a motion for summary judgment brought by the defendant Landmark Cinemas seeking the dismissal of the action brought against it by the plaintiff, commonly known as SOCAN which is a performing right society. The action alleges copyright infringement in certain musical works in which SOCAN holds the rights, musical works copyright in which is alleged to have been infringed during the performance by the defendant of certain motion pictures in theaters in Western Canada.
[2] The motion for summary judgment is supported by an affidavit given by one McIntosh who is the president of the defendant company. In that affidavit, he asserts that the defendant does not own, lease or operate any motion picture theaters and does not exhibit or cause or permit or authorize to be exhibited any motion pictures and has never done so in the past.
[3] Of course, for me to give effect to the motion for summary judgment, I would have to be of the view that the affidavit of McIntosh is worthy of some credit. Unfortunately for the defendant, the assertions in that affidavit are directly contradicted by other affirmations given by the same Mr. McIntosh, under oath, during earlier examinations in this case and in particular, during his examination for discovery as a representative of the defendant Landmark. In that discovery, Mr. McIntosh stated very clearly that Landmark operated and was in the business of operating motion picture theaters and that it had exhibited a number of films which are listed in the statement of claim in a number of theaters in Western Canada. Mr. McIntosh was as recently as last week invited to explain or to expand upon the contradictions and discrepancies between what is contained in his affidavit given in support of this motion and his earlier statements under oath. He declined to do so. His credibility is seriously in issue. That issue can only be resolved in a trial.
[4] I may say that a number of statements in Mr. McIntosh's affidavit are also at variance with certain statements in the defendant's pleadings as originally filed and in particulars given with regard to those pleadings. They also appear to be at variance with certain other evidence which has been produced during the discovery process, notably publications indicating that Landmark operates theaters, bank accounts which show that Landmark conducts a very considerable volume of business even though it may have no actual income, and other documents of that sort.
[5] Now, it may be that when this action goes to trial, the trier of fact will decide that the facts as mentioned in Mr. McIntosh's affidavit in support of this motion are indeed true. But that is a serious issue for trial and I am unable, sitting on a motion for summary judgment to make any such finding on the affidavit of Mr. McIntosh who is the only witness who has affirmed in support of the motion and whose credibility is, as I say, very much in doubt.
[6] I conclude that the motion will be dismissed.
Judge
Ottawa, Ontario
May 30, 2001