BMG Music Canada Inc. v. Vogiatzakis
T-2585-95
Hargrave P.
20/2/96
10 pp.
Motion to strike-Action itself by holders of copyrights of various pieces of music, against defendants who operate disc jockey and music supply service, allegedly without plaintiffs' licence-Defendants argue implied licence to use music and that plaintiffs in breach of implied term of past licences held by defendants, to effect plaintiffs would uniformly enforce licensing of other people in disc jockey industry-Defendants therefore claim conspiracy and unlawful interference and seek set-off in their defence and damages in counterclaim-Court will not strike out pleadings under R. 419(1) where, as here, party seeking to strike has already pleaded to allegations contained in impugned paragraph: Nabisco Brands Ltd. v. Procter & Gamble Co. et al. (1985), 5 C.P.R. (3d) 417 (F.C.A.)-However, appropriate to consider whether impugned paragraphs diclose reasonable cause of action, in context of counterclaim, or defence, as case may be-Not plain and obvious that plea of implied licence, together with plea of implied term in that licence, cannot succeed or that there is no chance of success-Court not prepared to say defendants' plea of implied agreement to use musical works cannot possibly succeed in this Court, particularly in that plaintiffs using this Court to enforce their side of claim-Paragraph 12 of defence, alleging defendants have offered to enter into licence with AVLA, but plaintiffs refused, could be defence to action under Copyright Act, s. 67.2(3) providing right of action barred if royalties tendered-May also go to plea of conspiracy-Reliance on provision of Copyright Act must be made clear by amendment or particulars-Certain paragraphs will have to be amended so as to more closely track wording and causes of action available in claim for civil damages based on Competition Act, s. 45-Paragraph containing bare reference to Competition Act will have to be amended to provide particulars of allegations, material facts in support thereof and reference to specific statutory provisions relied on-Plea of limitation not sufficient grounds to strike out statement of claim-As plaintiffs have mixed success on motion and as premature in bringing motion, taxable costs awarded to defendants in any event-Copyright Act, R.S.C., 1985, c. C-42, s. 67.2(3) (as enacted by R.S.C., 1985 (4th Supp.), c. 10, s. 12; S.C. 1993, c. 23, s. 4; c. 44, ss. 71, 79)-Competition Act, R.S.C., c. C-34, s. 45 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 30; S.C. 1991, c. 45, s. 547; c. 46, s. 590; c. 47, s. 714).