2019 FC, 2019 FC 1010

Date: 20190726 Docket: T-168-19 Citation: 2019 FC 1010 Vancouver, British Columbia, July 26, 2019 PRESENT: Madam Justice St-Louis BETWEEN: SOCIETY OF COMPOSERS, AUTHORS AND MUSIC PUBLISHERS OF CANADA Plaintiff and SHAKERS ROADHOUSE LTD. C.O.B. AS SHAKERS ROADHOUSE Defendant JUDGMENT UPON MOTION made on behalf of the Plaintiff ex parte and in writing, on July 22, 2019, pursuant to Rules 210 and 369 of the Federal Courts Rules , SOR/98-106 , [the Rules ] for Default Judgment against the Defendant, Shakers Roadhouse Ltd., doing business as Shakers Roadhouse , for failing to file a Statement of Defence herein; AND UPON READING the Statement of Claim, documents, and Affidavits of: (

a) Robert Lemoine, sworn February 15, 2019; (

b) Adriana Verhaeghe, sworn July 16, 2019; and (

c) Jaimie Marshall, sworn July 19, 2019; AND UPON considering that, on a motion for default judgment, the Court has two questions before it; first, is the Defendant in default, and second, is there evidence to support the Plaintiff’s claim: Chase Manhattan Corp v 3133559 Canada Inc , 2001 FCT 895 ; SOCAN v IIC Entreprises Ltd.

COB as Cheetah’s Nightclub , 2011 FC 1088 para 9 ; AND UPON considering that the Court is satisfied the Plaintiff has established that the Defendant was personally served with the Statement of Claim on February 14, 2019, as per the affidavit of service of Mr Robert Lemoine; AND UPON considering that there is no record of a Statement of Defence being filed within the time provided in Rule 204 of the Rules , or any request for an extension of time; AND UPON considering that the Plaintiff’s Motion had already been filed with the Court when the Notice of Status Review was issued on July 23, 2019 and that said Notice is thus hereby rescinded; AND UPON considering that the Plaintiff has adduced evidence to support its claim that the estimated licence fees of $3,960.00, and $198.00 GST is owed by the Defendant to the Plaintiff under Tariff 3A for the years 2017 through to 2019; AND UPON considering, inter alia , Subsection 38.1(4) of the Copyright Act and the jurisprudence cited by the Plaintiff; THIS COURT ORDERS that: 1 .

The Defendant has infringed the Plaintiff’s copyright in musical works in which the Plaintiff owns the right to perform in public by means of live music (Tariff 3A). 2 . The Defendant shall pay to the Plaintiff statutory damages in accordance with the Copyright Act , in the amount of $23,958.00, which is six (6) times the estimated licence fees of $3,960.00, and $198.00 GST owed by the Defendant to the Plaintiff under Tariff 3A for the years 2017 through to 2019. 3 . The Defendant shall permit a full and complete accounting of all such licence fees due and an audit of the Defendant’s books and records. 4 .

The Defendant shall pay to the Plaintiff statutory damages in accordance with the Copyright Act , in the amount of six (6) times any additional licence fees found payable under Tariff 3A for the years 2017 to 2019 pursuant to the Defendant’s full and complete accounting of all such licence fees due and an audit of the Defendant’s books and records.

5 . The Defendant shall pay to the Plaintiff pre-judgment interest on the amounts found due and owing to the Plaintiff, at the rates prescribed by the Judgment Interest Regulation , Alta. Reg. 215/2011 for 2017 to 2019. 6 .

The Defendant, itself or through its officers, servants, agents, employees or otherwise, either directly or indirectly, shall be restrained from performing, authorizing or causing to be performed on the premises under its control musical works in which the Plaintiff owns the performing rights unless the Defendant has first obtained from the Plaintiff a performing rights licence authorizing such acts. 7 .

The Defendant, itself or through its officers, servants, agents, employees or otherwise, either directly or indirectly, shall be restrained from permitting, for profit, a place of entertainment to be used for the performance of musical works in which the Plaintiff owns the performing rights unless the Defendant has first obtained from the Plaintiff a performing rights licence authorizing such acts. AND THIS COURT FURTHER ORDERS AND ADJUDGES THAT: 8 . The Defendant shall pay to the Plaintiff forthwith its costs of this motion fixed at $3,000.00.

THIS JUDGMENT bears interest at the rate of 4% per annum from its date. "Martine St-Louis" Judge