Federal Court of Appeal sets hearings for copyright and excise tax cases

This coming week, hearings scheduled before the Federal Court of Appeal and the Federal Court involved matters relating to the Copyright Act, Excise Tax Act, and Federal Courts Rules, as well as certified class proceedings.

Federal Court of Appeal

The appeal court set the cases of Macciacchera dba Smoothstreams.tv et al v. Bell Media Inc et al, A-2-23 and Macciacchera et al v. Bell Media Inc. et al, A-262-22 on Sept. 3, Tuesday. The underlying proceedings involved copyright infringement allegations against three streaming services operated by the appellants.

An appeal questioned the lawfulness of the execution of an ex parte Anton Piller order issued by the Federal Court. The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic wanted to intervene in this appeal. It argued that it had substantial experience in applying equity principles to copyright actions.

On Aug. 23, 2023, in Macciacchera (Smoothstreams.tv) v. Bell Media Inc., 2023 FCA 180, the Federal Court of Appeal accepted that the clinic was a credible organization with experience in copyright infringement matters. However, the appeal court dismissed the motion for intervener status.

The appeal court ruled that it would be more appropriate for the clinic to raise the issues before bodies like the Federal Court’s Intellectual Property Bar Liaison Committee, the Intellectual Property Institute of Canada, or the government’s legislative branch.

The individual appellants then moved to represent the corporate appellants of which they were officers under r. 120 of the Federal Courts Rules, SOR/98-106. They claimed that they were committed to pursuing this appeal.

Last Feb. 15, in Macciacchera (Smoothstreams.tv) v. Bell Media Inc., 2024 FCA 30, the Federal Court of Appeal denied the motion and ordered them to file a fresh requisition for hearing within 30 days of retaining new counsel. The individual appellants failed to show an inability to afford a lawyer and thus the existence of special circumstances, the appeal court held.

The appeal court scheduled GE Renewable Energy Canada Inc. v. Canmec Industrial Inc. et al., A-206-24 on Sept. 4, Wednesday. The appellant in this case filed an copyright infringement action against respondent Canmec Industrial Inc., which made a third-party claim against co-respondent Rio Tinto Alcan Inc.

The Federal Court partly dismissed the appellant’s motion seeking leave to amend its amended statement of claim under r. 75 of the Federal Courts Rules and seeking to adjourn the trial. The appellant asked the appeal court to allow the appeal, to set aside the lower court’s order, and to allow it to serve and file a second amended statement of claim.

The appeal court set Amex Bank of Canada v. His Majesty the King, A-225-23 on Sept. 5, Thursday. In this case, the Tax Court of Canada dismissed an appeal relating to input tax credits that the appellant claimed.

This appeal relating to the Excise Tax Act, 1985 wanted to set aside the Tax Court’s dismissal. The appellant alleged that the Tax Court’s judge failed to properly consider the relevant agreement between the parties.

Federal Court

The court scheduled Benchmuel and 9303-0484 Quebec Inc. et al. v. Gags N Giggles et al., T-60-17 on Sept. 5, Thursday. A statement of claim alleged that the defendants infringed copyrights in two designs and directed public attention to their goods, services, or business in a way that was confusing or likely to be confusing with the plaintiffs’ goods, services, or business.

The plaintiffs requested a default judgment. The court issued a default judgment ordering the defendants to pay the plaintiffs $40,000 in statutory damages under s. 38.1 of the Copyright Act, 1985 and $15,000 in punitive damages.

The defendants moved to set aside the default judgment under r. 399(1) of the Federal Courts Rules. On July 25, 2017, in Benchmuel v. Gags N Giggles, 2017 FC 720, the Federal Court dismissed the motion on the basis that the defendants failed to satisfy the applicable test to set aside the judgment.

The court set the cases of Heyder v. Attorney General of Canada, T-2111-16 and Beattie v. Attorney General of Canada, T-460-17 on Sept. 5, Thursday. In this matter, the court certified two class proceedings and approved a final settlement agreement negotiated between the parties.

The proceedings covered two classes of individuals who allegedly experienced sexual misconduct while serving in the Canadian Armed Forces, in the Department of National Defence, and as staff of the non-public funds, Canadian Forces.

On Jan. 6, 2023, in Heyder v. Canada (Attorney General), 2023 FC 28, the Federal Court ordered the administrator to decide whether to accept the 12 late claims for which the court’s leave was requested and all other claims received after the extension period’s expiry in line with the court’s directions.