Best News Enterprises Corp. Plaintiff v. Tai Li Enterprises Ltd., 2003 BCSC 460

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Best News Enterprises Corp. v. Tai Li Enterprises Ltd., 2003 BCSC 460 Date: 20030326 Docket: S010771 Registry: Vancouver Between: Best News Enterprises Corp. Plaintiff And Tai Li Enterprises Ltd. doing business as Popular Video and Hing Cheung Wong Defendants Before: The Honourable Mr. Justice Joyce Reasons for Judgment Counsel for the plaintiff J.A. Henshall Counsel for the defendants and for Janice Wang R.

Pedersen Date and Place of Trial/Hearing: March 11, 2003 Vancouver, B.C. [ 1 ] The plaintiff sues the defendants for damages for infringement of copyright and an injunction in respect of the rental, distribution and possession for the purpose of rental of certain videotapes. [ 2 ] The plaintiff commenced the action on February 8, 2001. On January 14, 2003, a master dismissed the plaintiff’s application to add Janice Wang as a defendant. The plaintiff wanted to appeal but failed to file its notice of appeal by January 28, 2003, as required by Rule 53(7).

It seeks an extension of time within which it may bring the appeal. [ 3 ] In Pridham v. Wickham [1993] B.C.J. No. 1796 , Master Wilson, as he then was, dealt with the applicable principles relating to an application to extend the time to appeal from a decision of a master. At paragraphs 26-30, Master Wilson said: Appeals to the Court of Appeal must be taken within a prescribed time. In Newson v.

Newson 1980 CanLII 388 (BC CA) , [1980] 3 W.W.R. 741 (B.C.C.A.), Lambert J.A., made the following observations concerning the time limits for appeals to the Court of Appeal, at page 745: The concept of finality of litigation underlies the strict view that is taken by this court in considering whether to exercise its discretion to extend the time for filing a notice of appeal.

Once a dispute has been submitted to litigation, and has been decided, and the time for appeal has expired, then the parties should be able to pursue their affairs on the basis that the dispute has been finally put to rest, for better or worse. They may make irrevocable decisions based on that assumption. They ought to be able to do so. It is clear that the ultimate finality, in appeals to the Court of Appeal, is not present in appeals from the order or decision of a master. Nevertheless, I think that the notions expressed by Mr. Justice Lambert are relevant, albeit to a lesser degree, to an appeal from an

interim order. Accordingly, I have applied the principles defined for the determination of an application for an order extending the time for an appeal to the Court of Appeal to this application concerning an appeal from the order of a master. I have taken those principles from Davies v. C.I.B.C. (1987) 1987 CanLII 2608 (BC CA) , 15 B.C.L.R. (2d) 256. At page 259, Seaton J.A. wrote: …In Re Flair Construction Ltd.; Venables v. Bank of Montreal (1981), 38 C.B.R. (N.S.) 292 (B.C.C.A.) , five questions are set out that I think are the proper questions to consider in this case.

First, was there a bona fide intention to appeal? Second, when were the respondents informed of the intention? Third, would the respondents be unduly prejudiced by an extension? Fourth, is there merit in the appeal? And, fifth, is it in the interest of justice that an extension be granted? [ 4 ] I agree that the forgoing questions are relevant to the consideration of an application for extension of time to appeal from a master, bearing in mind that the decision that the plaintiff wants to appeal does not have the finality of a trial judgment.

That fact, in my view, has particular significance to the consideration of the third question - whether the respondent would be unduly prejudiced by an extension of time. [ 5 ] I am satisfied there was a bona fide intention to appeal. The plaintiff’s solicitor took a brief time to review the law then sought and obtained instructions to appeal on January 29. Shortly thereafter, he advised counsel for the defendants and Ms. Wang of his instructions.

It was then he realized that the appeal was to a judge of this Court, not to the Court of Appeal, and that the appeal had to be launched within 14 days rather than the 30 days within which a party must seek leave from the Court of Appeal to appeal an interlocutory decision. [ 6 ] I do not consider the defendants or Ms. Wang would suffer undue prejudice if an extension were granted. There is no evidence she has taken any particular course of action or made any decisions based on any feeling of certainty that the passing of January 28 th might have brought.

Furthermore, there is no suggestion in this case of any limitation issue. Accordingly, if the plaintiff is precluded from bringing its appeal, it can issue a separate writ, containing the same allegations, and have the issue re-visited in that way. [ 7 ] In my view, the nub of this application is whether there is any merit in the appeal. If there is no reasonable likelihood that the appeal would succeed, then I should refuse an extension of time. If the appeal has merit, an extension of time is appropriate. [ 8 ] It is necessary to set out briefly the nature of the plaintiff’s claim.

The plaintiff alleges it is the owner of the copyright and/or the exclusive right to distribute certain Chinese language videotapes. [ 9 ] The corporate defendant operates a retail video store in Vancouver from which it rents Chinese language videotapes.

The defendant Wong is the sole shareholder, director and officer of the corporate defendant and, the plaintiff alleges one of its operating minds. [ 10 ] The plaintiff alleges the defendants infringed the plaintiff’s copyright in the videotapes by renting copies of them to the public. [ 11 ] The plaintiff further alleges Janice Wang is the manager of the corporate defendant’s business and one of the operating minds of the corporation. The plaintiff seeks to join Ms.

Wang as a defendant and to amend its statement of claim to allege that … the Defendants or one or more of them infringed and continue to infringe the Plaintiff’s copyright in and or exclusive right to distribute [the videotapes] [ 12 ] In dismissing the application the learned master said: It is important to look at the proposed amendments themselves. The ones with respect to Ms. Wang start particularly at paragraph 7 and go through to paragraph 11. In each case, the allegations are against the defendants as existing with the inclusion of Ms. Wang but not separately.

What I mean by that is that she is not named separately in paragraphs 7 through 11 of the proposed Amended Statement of Claim. The allegations are against all of the defendant, and the evidence and the argument before me was that Ms. Wang should be added because she is, to all intents and purposes, the operation mind of the company. In addition, the allegations are that she was an employee of the company either paid full-time or part-time.

There is no allegation that she did any act separate and apart from the company in any of the proposed amendments to the Statement of Claim. [ 13 ] The master referred to and quoted from Insurance Corporation of British Columbia v. Leland [1999] B.C.J. No. 2073 (S.C.) , Rafiki Properties Ltd. v. Integrated Housing Development Ltd. [1999] B.C.J. No. 243 (S.C.) and The Owners Strata Plan LMS 1965 v. 450526 B.C.

Ltd. [2002] BCSC 155 (S.C.), which dealt with the question of when principals or employees of a company may be sued in negligence in addition to the company of which they are a principals or employees. [ 14 ] At paragraph 10, the learned master said that: … based on the Rafiki Properties and The Owners Strata Plan LMS 1965 , and based on the fact that I do not see any allegations in the Statement of Claim of any allegations separate and apart from the company, I deny the application.

[ 15 ] The master also referred to the delay in applying and the prejudice referred to by Ms. Wang but rested his decision primarily on the foregoing basis. [ 16 ] Counsel for the plaintiff seeks to advance the argument on appeal that the learned master erred in principle in relying on the law set out in the two decisions cited above. He submits those cases are distinguishable because they dealt with situations where the plaintiff sought to hold the individual defendants liable in negligence when there was no separate identity or interest from that of the company, i.e. no acts independent of those of the company.

Counsel for the plaintiff says the present case deals not with negligence but with an intentional tort or breach of statute (Copyright Act). He seeks to argue that Ms. Wang is liable, in her own right, for having rented the copyrighted videotape. [ 17 ] The court in Insurance Corporation of British Columbia v. Wyland , Rafiki Properties Ltd. v. Integrated Housing Development Ltd. and The Owners Strata Plan LMS 1965 v. 450526 B.C. Ltd. referred to ADGA Systems International Ltd. v.

Valcom Ltd. , (1999), 1999 CanLII 1527 (ON CA) , 43 O.R. (3d) 101 (C.A.) which canvassed the law of personal liability of directors, officers and employees of corporations including the following proposition drawn from Montreal Trust Co. of Canada v. ScotiaMcLeod Inc. (1995), 1995 CanLII 1301 (ON CA) , 129 D.L.R. (4 th ) 711 (Ont.

C.A.): … officers or employees of limited companies are protected from personal liability unless it can be shown that their actions are themselves tortious or exhibit a separate identity or interest from that of the company so as to make the act or conduct complained of their own. [ 18 ] In my opinion, the master was correct in concluding that the law as stated above is applicable in the circumstances of this case. In my view, counsel for the plaintiff puts the matter too narrowly when he suggests that a distinction must be drawn between acts of negligence and the conduct alleged by Ms. Wang in this case.

The master concluded that the allegations the plaintiff seeks to make against Ms. Wang did not exhibit a separate interest or identity. In my view, he was correct. Ms. Wang did not rent the videos; the company rented them. [ 19 ] In my opinion, there is no merit in the appeal and I dismiss the application. “B.M. Joyce, J.” The Honourable Mr. Justice B.M. Joyce