Czarnogorski v. Society of Composers, Authors, and Music Publishers Canada
The Trial Judge did not err in his exercise of discretion on costs because the offer to settle was not presented before judgment nor was a reservation on costs sought, and the factual circumstances (respondent's mixed success, joint representation of defendants, defendants' denials of liability, and the appellant's...
Source-derived case information.
- Citation
- 2007 FCA 316
- Parties
- Appellant: Andrew Czarnogorski; Respondent: Society of Composers, Authors and Music Publishers of Canada
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 3 October 2007
- Procedural Posture
- Appeal / Judgment on Costs Following Appeal
- Outcome
- Appeal dismissed with costs
- Legal Topics
- Costs, Offer to Settle, Liability, Infringement, Joint Representation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Andrew Czarnogorski
Appellant
Society of Composers, Authors and Music Publishers of Canada
Respondent
Procedural Posture
Appeal / Judgment on Costs Following Appeal
Legal Issues
- 1 Whether the Trial Judge erred in his award of costs
- 2 Whether an offer to settle not raised before judgment can affect costs
- 3 Whether the Trial Judge's decision to order no costs was unreasonable given the parties' positions and representation
Ratio Decidendi
The Trial Judge did not err in his exercise of discretion on costs because the offer to settle was not presented before judgment nor was a reservation on costs sought, and the factual circumstances (respondent's mixed success, joint representation of defendants, defendants' denials of liability, and the appellant's role as president/operator) made an order of no costs reasonable; therefore the appeal is dismissed with costs.
Court Disposition
Appeal dismissed with costs
Orders
- Appeal dismissed with costs
Full Case Text
Judgment text and source record
1 paragraphs
Czarnogorski v. Society of Composers, Authors, and Music Publishers Canada Court (s) Database Federal Court of Appeal Decisions Date 2007-10-03 Neutral citation 2007 FCA 316 File numbers A-227-05 Decision Content Date: 20071003 Docket: A-227-05 Citation: 2007 FCA 316 CORAM: NADON J.A. SEXTON J.A. SHARLOW J.A. BETWEEN: ANDREW CZARNOGORSKI Appellant and SOCIETY OF COMPOSERS, AUTHORS AND MUSIC PUBLISHERS OF CANADA Respondent Heard at Toronto, Ontario, on October 3, 2007. Judgment delivered from the Bench at Toronto, on October 3, 2007. REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A. Date: 20071003 Docket: A-227-05 Citation: 2007 FCA 316 CORAM: NADON J.A. SEXTON J.A. SHARLOW J.A. ANDREW CZARNOGORSKI Appellant and SOCIETY OF COMPSERS, AUTHORS AND MUSIC PUBLISHERS OF CANADA Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on October 3, 2007) SEXTON J.A. [1] We are not persuaded that the Trial Judge erred in his award of costs. The issue relating to the offer to settle was not brought to his attention prior to judgment nor did counsel for the Appellant ask the Trial Judge to reserve his decision on costs until after a determination of liability had been made, in order to allow for representations to be made on the subject of costs, after the main findings of the Trial Judge were known. [2] The order of the Trial Judge providing for no costs was not unreasonable having regard to the fact that (a) the Respondent was successful against the corporate defendant but unsuccessful against the Appellant, and that (b) both the corporate defendant and the Appellant were represented by the same counsel and (c) both defendants denied liability for the infringement thus putting the Respondent in the position of having to prove the infringement. It is also significant that the Appellant was the president of the corporate defendant and at all material times was the operator and manager of the business of the corporate defendant. [3] The appeal should therefore be dismissed with costs. “J. Edgar Sexton” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-227-05 STYLE OF CAUSE: ANDREW CZARNOGORSKI Appellant and SOCIETY OF COMPOSERS, AUTHORS, AND MUSIC PUBLISHERS CANADA Respondent PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: OCTOBER 3, 2007 REASONS FOR JUDGMENT OF THE COURT BY: (NADON, SEXTON, SHARLOW JJ.A.) DELIVERED FROM THE BENCH BY: SEXTON, J.A. APPEARANCES: RAY DI GREGORIO FOR THE APPELLANT/ APPLICANT KELLY GILL FOR THE RESPONDENT SOLICITORS OF RECORD: CAMPORESE SULLIVAN DI GREGORIO HAMILTON, ON FOR THE APPELLANT/ APPLICANT GOWLINGS LLP, TORONTO, ON FOR THE RESPONDENT