Date: 20010510
Docket: T-1868-97
Neutral reference: 2001 FCT 459
MONTRÉAL, QUEBEC, MAY 10, 2001
BEFORE: RICHARD MORNEAU, PROTHONOTARY
Between:
MARTIN BEAUDRY
and
JEAN-MARCEL RAYMOND
Plaintiffs
AND
JEAN-JACQUES GOLDMAN,
SONY MUSIC ENTERTAINMENT (CANADA) INC.,
CÉLINE DION,
RENÉ ANGÉLIL
and
BEN KAYE
Joint and several defendants
AND
SOCIETY FOR REPRODUCTION RIGHTS OF AUTHORS,
COMPOSERS AND PUBLISHERS IN CANADA,
SOCIETY OF COMPOSERS, AUTHORS AND MUSIC
PUBLISHERS OF CANADA
LA SOCIÉTÉ DES AUTEURS, COMPOSITEURS
ET ÉDITEURS DE MUSIQUE
and
LA SOCIÉTÉ POUR L'ADMINISTRATION DU
DROIT DE REPRODUCTION MÉCANIQUE DES
AUTEURS, COMPOSITEURS ÉDITEURS
(SACEM / SDRM)
Mis-en-cause
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] The Court has before it a motion by the plaintiffs to resolve the objections made by the defendants at the latter's examination for discovery.
[2] The background to the instant case is known to the parties and the Court since a motion of the same type, this time by the defendants, was decided on January 19, 2001 ("the January 2001 decision").
General Observations
[3] Before considering the specific questions put to each of the defendants, the disposition of the matter will be assisted by making certain general observations.
[4] These observations are intended to relate the case to the January 2001 decision, but also to the Court's decision on March 29, 1999 in which the Court ordered the question of the potential infringement of the copyright to be severed from the question of the quantum of damages (hereinafter "the reference").
[5] In this connection it should be noted, first, that the defendants relied heavily on the January 2001 decision and the reference as a basis for arguing that many of the questions put by the plaintiffs were irrelevant or inadmissible.
[6] In the January 2001 decision the Court disposed of a series of objections raised at the examination for discovery of the plaintiffs. In connection with that decision, in particular at paras. 12 to 15, the Court identified the points it considered relevant to the issue between the parties. At that time the Court identified at most what it regarded as relevant for the purposes of disposing of the motion then before it. However, the list given cannot be taken as an exhaustive list of the relevant points on the examinations for discovery as a whole. Accordingly, the January 2001 decision cannot a priori be a basis for the defendants' refusal to answer certain questions on the ground that the answers sought are not on the list given.
[7] The purpose or function of the decision on the reference was not to separate from the question of copyright infringement aspects of the case which, although useful in relation to damages, might nevertheless have sufficient relevance to infringement to be authorized at this stage.
[8] On the relevance of a question at the discovery stage, without in any way derogating from what was indicated in the January 2001 decision, this is what the Court said in Sydney Steel Corp. v. Omisalj (The), [1992] 2 F.C. 193, at 197:
. . . the standard for propriety of a question asked in discovery is less strict than the test for admissibility of evidence at trial and the appropriate standard is whether the information solicited by a question may be relevant to the matters which at the discovery stage are in issue on the basis of pleadings filed by the parties.
[9] That is essentially what is required by Rule 240 of the Federal Court Rules, 1998 ("the Rules").
[10] In an earlier judgment, Reading & Bates Construction Co. et al. v. Baker Energy Resources Corp. et al., (1988), 24 C.P.R. (3d) 66, at 70, McNair J. of this Court stated the following rule on the production of documents, a rule which so far as I know also applies to a question asked as part of an examination for discovery:
The principle for determining what document properly relates to the matters in issue is that it must be one which might reasonably be supposed to contain information which may directly or indirectly enable the party requiring production to advance his own case or to damage the case of his adversary, or which might fairly lead him to a train of inquiry that could have either of these consequences . . .
[11] These remarks by the Court in Reading & Bates apply here to the various agreements which the plaintiffs are seeking from the defendants, since the latter are numerous and their rights, powers and obligations under those agreements in respect of the disputed work are of interest to the plaintiffs in determining the participation of each defendant in the alleged infringement of their work. Accordingly, the agreements may assist the plaintiffs to advance their case.
[12] It is also worth noting that it is the confidentiality which essentially concerns the defendants in the production of these agreements. It appeared that for many of the points which these agreements might affect the defendants allowed the plaintiffs to ask a host of questions. However, when the time came to produce the agreements on undertaking, the barriers went up. This background suggests to the Court that the agreements are relevant at this stage but it is their confidentiality that creates a problem.
[13] As the Court sees the matter, this question of confidentiality could not be a fundamental aspect of the decision on the reference and cannot now prevent production of the agreements as such.
[14] The confidentiality of any relevant document is dealt with in accordance with Rule 152. Thus, in the instant case any agreement production of which is ordered will be produced strictly in accordance with the provisions of Rule 152(2).
[15] Finally, any question the plaintiffs indicated they are not prepared to discuss in connection with the instant motion will not be touched on here. The Court must now turn to the specific questions put to each defendant individually.
Sony Music Entertainment (Canada) Inc.
[16] For this defendant, the plaintiffs questioned Vito Luprano.
[17] Although he is one of Sony's senior vice-presidents, Mr. Luprano is in the "Artist and Repertory" sector. The evidence in the record as a whole was that it was in terms of these duties and knowledge that the counsel for the plaintiffs insisted on questioning this witness rather than the representative Sony initially wished to offer, Ian J. Mackay, Sony's person responsible for commercial and legal affairs. Although the plaintiffs had relevant reasons for proceeding in this way, they knew that Mr. Luprano could not be regarded as the Sony representative who had full knowledge of all the relevant aspects of the defence.
[18] It does not appear to the Court that the first question put to Mr. Luprano is relevant: it will therefore not have to be answered.
[19] Question No. 2 falls under solicitor-client privilege: it will therefore not have to be answered.
[20] On question No. 3, the choice of Mr. Luprano meant that he was not the right witness to answer this question: the question will therefore not have to be answered.
[21] The same applies to question No. 4.
[22] Question 7, which requests production of an agreement, seems to the Court to be relevant in view of the background to the dispute as described above. Further, it can be produced by Mr. Luprano. It will therefore have to be produced within 15 days in accordance with Rule 152 by counsel for the plaintiffs.
[23] On questions 12 and 13, the choice of Mr. Luprano means that he is not the right witness to answer the said questions. Moreover, and most importantly, these questions relate to whether the defendants attempted to mitigate their potential infringement. The questions therefore deal with the matter of damages, which is the subject of the reference. The questions will accordingly not have to be answered.
[24] On question 14, it seems to the Court that this necessarily requires an expert opinion. The question will therefore not have to be answered.
[25] In view of the preceding conclusions, there is no basis for ordering Mr. Luprano's examination to continue. If the plaintiffs wish to continue the examination of Sony, they will have to do so through another representative who this time will be named by Sony. In view of Rules 3 and 53, and the fact that an opportunity in this direction was mentioned by counsel for Sony at the examination of Mr. Luprano (see p. 40 of the latter's examination), the Court considers that it is right and proper here to order that any further examination of Sony should be conducted within 40 days of the date of the instant order by the examination of a representative named by Sony and in compliance with Rule 90: the whole at a date and place to be determined by agreement between the parties.
René Angélil
[26] The agreement sought by the only disputed question put to this witness seems to the Court relevant as to its nature and the fact that it could enable the plaintiffs to confirm many points they have already obtained through questions already asked. The witness was the manager of the defendant Dion and is in a position to produce the said agreement. It will therefore have to be produced within 15 days in accordance with Rule 152 by counsel for the plaintiffs.
[27] Further examination of this witness - and of the defendants Kaye and Goldman - should be conducted within 40 days of the date of this order, at a specific date and place determined by agreement between the parties, unless within the same time the parties agree to proceed by written examination. If the examination is oral, Rule 90 will have to be observed.
Jean-Jacques Goldman
[28] Since in regard to this witness question No. 1 is included in question No. 2, the latter question needs consideration. Question No. 2, which involves producing a copy of a written agreement, if it is in writing, is relevant in view of the general remarks made above. It will therefore have to be produced within 15 days in accordance with Rule 152 by counsel for the plaintiffs.
[29] The same is true mutatis mutandis for the agreement covered by question 3.
[30] Question No. 4 results from a misreading of paragraph 51 of the defence filed by this witness. It will not therefore have to be answered.
[31] On questions 7 and 8, the premises sought by these questions could have been determined by specific questions. In accordance with the general framework presented here, no further answer will have to be given to them.
[32] Question 9 does not have to be answered by this witness. It is clear that it calls for knowledge the witness does not have.
Ben Kaye
[33] On question No. 1, the relevant exhibit speaks for itself. This question will not have to be answered.
[34] On question 3, since the agreement concerned will be filed under the foregoing reasons, it will not have to be filed a second time under this question.
[35] Question 4 as worded is deficient in respect of the information sought (point 4(c), p. 16, plaintiffs' written representations). It will therefore not have to be answered.
[36] On questions 6 and 7 (and regardless of whether there is an objection to question 6), these relate to relevant documents, especially as the statements regarding SACEM have been produced. They will therefore have to be answered.
[37] Question 10 ultimately concerns damages. On account of the reference, this question will not have to be answered. The same applies to questions 11 and 13 to 15.
[38] On question 12, the plaintiffs were able to determine the premise for this question by specific questions. No further answer will have to be given.
[39] Moreover, the deadline of April 18, 2001 set in the order of March 5, 2001 in the instant case for the requisition for a pre-trial conference is postponed to July 20, 2001.
[40] Costs on the instant motion will follow the divided outcome on the latter.
Richard Morneau
Prothonotary
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
|
Federal Court of Canada Trial Division Date: 20010510 Docket: T-1868-97 Between: MARTIN BEAUDRY and JEAN-MARCEL RAYMOND Plaintiffs AND JEAN-JACQUES GOLDMAN, SONY MUSIC ENTERTAINMENT (CANADA) INC., CÉLINE DION, RENÉ ANGÉLIL and BEN KAYE Joint and several defendants AND SOCIETY FOR REPRODUCTION RIGHTS OF AUTHORS, COMPOSERS AND PUBLISHERS IN CANADA, SOCIETY OF COMPOSERS, AUTHORS AND MUSIC PUBLISHERS OF CANADA LA SOCIÉTÉ DES AUTEURS, COMPOSITEURS ET ÉDITEURS DE MUSIQUE and LA SOCIÉTÉ POUR L'ADMINISTRATION DU DROIT DE REPRODUCTION MÉCANIQUE DES AUTEURS, COMPOSITEURS ÉDITEURS (SACEM / SDRM) Mis-en-cause REASONS FOR ORDER AND ORDER |
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT FILE No.: STYLE OF CAUSE: |
T-1868-97 |
MARTIN BEAUDRY and JEAN-MARCEL RAYMOND
Plaintiffs
AND
JEAN-JACQUES GOLDMAN,
SONY MUSIC ENTERTAINMENT (CANADA) INC.,
CÉLINE DION, RENÉ ANGÉLIL and BEN KAYE
Joint and several defendants
AND
SOCIETY FOR REPRODUCTION RIGHTS OF AUTHORS,
COMPOSERS AND PUBLISHERS IN CANADA,
SOCIETY OF COMPOSERS, AUTHORS AND MUSIC
PUBLISHERS OF CANADA
LA SOCIÉTÉ DES AUTEURS, COMPOSITEURS
ET ÉDITEURS DE MUSIQUE
and
LA SOCIÉTÉ POUR L'ADMINISTRATION DU
DROIT DE REPRODUCTION MÉCANIQUE DES
AUTEURS, COMPOSITEURS ÉDITEURS
(SACEM / SDRM)
Mis-en-cause
PLACE OF HEARING:Montréal, Quebec
DATE OF HEARING:April 11, 2001
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER:May 10, 2001
APPEARANCES:
| Éric P. Goyette |
for the plaintiffs |
|
| Paul-André Martel |
for the defendants Goldman, Dion, Angélil and Kaye |
|
| David E. Platts |
for the defendant Sony Music Entertainment (Canada) Inc. |
|
SOLICITORS OF RECORD:
| Tamaro, Goyette Montréal, Quebec |
for the plaintiffs |
|
| Dunton Rainville Montréal, Quebec |
for the defendants Goldman, Dion, Angélil and Kaye |
|
| McCarthy Tétrault Montréal, Quebec |
for the defendant Sony Music Entertainment (Canada) Inc. |