Federal Court Decisions

Date: 20020226

Docket: T-1059-99

Neutral Citation: 2002 FCT 215

Ottawa, Ontario, this 26^th day of February 2002

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

TIME WARNER ENTERTAINMENT COMPANY, L.P.

Plaintiff

- and -

JANE DOE and OTHERS

Defendants

REASONS FOR ORDER AND ORDER

[1]    The plaintiff applies for default judgment against Thi Lee and Van Nguyen Le. It appears that at the time of execution of the Anton Piller order Thi Lee was 14 years old. It further appears that the stall where Ms. Lee was served was registered in the name of Van Nguyen Le even though Ms. Lee claimed to be the owner of the stall. The flea market manager confirmed to the plaintiff's representative that the flea market had no dealing with Ms. Lee.

[2]    There only evidence of service upon Mr. Le is by way of service on Ms. Lee. The affidavit submitted in support of an order ratifying execution of the order provides that after conferring with Ms. Lee, the flea market manager indicated that: "She was satisfied that the flea market had not contracted with Ms. Lee and we were given permission to proceed with the search and seizure. Although the defendant denied manufacturing the counterfeit items we saw and seized counterfeit transfers and they were hidden near the Hot Stamp Press". It is not obvious by whom the consent to proceed was granted for there was no party to the conversation who appeared to have the authority to consent to the execution of the order.

[3]    It is now sought to complete this matter by obtaining default judgment against a person who was 14 years old at the time of service. She was therefore a person under a disability. According to Rule 129, service on a person under a disability is to be effected in such manner as the Court may order. No order was in place at the time of service and no motion was made after service seeking directions nunc pro tunc. If Mr. Le was served, he was served by service upon a minor who stated that she lived with him.

[4]    The order which was served at the time of execution provides that it may be served by leaving it with the person apparently in charge of the premises. This was never intended to include a minor. As a matter of law, a minor lacks the capacity to consent to a search and seizure of someone else's property. Whether an adult in the same circumstances has the requisite authority is a matter of fact.

[5]                 An order was made reviewing the execution of the Anton Piller order and converting the interim injunction to an interlocutory injunction. It must be treated as conclusive of the question of service for the purposes of the injunctive relief granted. It is not for one judge of this court to go behind an order issued by another judge of this court. Nor is it desirable to treat an order as binding for some purposes but not for others so that one must accept that service has been proved for purposes of default judgment as well.

[6]                 If service is proved, then the plaintiff need only show that the defendants have infringed the plaintiff's intellectual properties in order to be entitled to judgment. In this case, the evidence is that Ms. Lee, who claimed to be owner of the stall, was present where certain allegedly infringing goods were being sold. There is hearsay evidence that the stall was rented to Mr. Le.    The evidence of infringement is the same type of evidence of infringement accepted by this court at the time of execution of the order. Apart from the hearsay evidence of ownership of the stall, there is no evidence that Mr. Le knew of or participated in the infringement of the plaintiff's rights. This leaves only the question as to whether a 14 year old has the capacity to understand the nature of infringement and the consequences of such conduct. This is not to import a requirement of mens rea into infringement proceedings but to inquire whether an infant has the capacity to attract liability for infringement, with the consequence in damages which flow from this. In the absence of any authority which requires me to find that an infant has the capacity to engage in acts of infringement so as to attract liability, I decline to do so.

NOW THEREFORE IT IS HEREBY ORDERED THAT

The application for default judgment is dismissed.

         "J.D. Denis Pelletier"         

   Judge