The Ontario Superior Court allowed an appeal from the order of motion judge, wherein he declined to grant default judgment to the plaintiff. The Plaintiff had commenced this action against a number of Defendants for failure to remit private copying levies to the Plaintiff following the sale or disposition of blank media, as required under the Copyright Act. Two of the Defendants had failed to defend the claim and were noted in default. The motion judge declined to award default judgment since fraud was being asserted and that the plaintiff ought to have to satisfy the court by way of oral evidence, both of the quantity of media and that they were, in fact, blank disks.
The Ontario Superior Court concluded that the motion judge erred in not granting default judgment. First, the Court did not see any pleading of fraud in the claim, nor was it aware of any authority that distinguishes fraud from the effect of deemed admissions contained in the default proceedings. Second, the Court noted that there was an express pleading of the quantity of media involved, and of the fact that the media were blank. The Court found no reason why the Plaintiff should be required to separately establish those allegations of facts through a trial.