France Animation V Robinson, 2011 QCCA 1361 (English Translation)

Translated version of 11-France_Animation,_s.a._c.
_Robinson,_[2011]_J
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Translated version of 11-France_Animation,_s.a._c._Robinson,_ [2011]_J

Style of Cause: France Animation, Robinson bag FRANCE ENTERTAINMENT SA, CHRISTOPHE IZARD, RAVENSBURGER + FILM TV GmbH and RTV Family Entertainment AG, APPELLANTS (500-09-020014-098) - Defendants and Cinar Corporation and FILMS INC. CINAR. CALL (500-09-020033-098) - Defendants and Christian Davin, APPELLANT (500-09-020034-096) - Respondent and RONALD A. RONALD WEINBERG and A. WEINBERG, as sole liquidator of the estate of the late Micheline Charest, CALLER (500-09-020035-093) - defendant and defendant continuance of suit c. CLAUDE ROBINSON and PRODUCTIONS INC. NILEM., RESPONDENTS applicants and BBC Worldwide Television, Theresa Plummer-Andrews, HELEN Charest and McRAW HOLDINGS INC., AT ISSUE - Defendants and
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Translated version of 11-France_Animation,_s.a._c._Robinson,_[2011]_J
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VIDEAL GESELLSCHAFT VON ZUR HERTELLUNG AUDIOVISUELLEN Produkten MHB and 3918203 CANADA INC.., AT ISSUE - put involved [2011] JQ no 9469 2011 QCCA 1361 EYB 2011-193354 2011EXP-2382 I 2011-1327 EYB 2011-193354 [2011] RJQ 1415 Nos: 500-09-020014-098, 500-09-020033-098, 500-09-020034-096, 500-09-020035-093 (500-05-021498-967)
Court of Appeal of Quebec Registry of Montreal The Honourable France Thibault JA, Benoit Morin and JCA Franois Doyon JA Heard: 18, 19, 20 and April 21, 2011. Minutes: July 20, 2011. (274 ss.) Intellectual property - Copyright - Related Legislation - Provincial Legislation Criteria for copyright protection - originality - Objects of Copyright - Literary Works - Books and other writings - Violation - Direct injury - Remedies - Damages Compensatory - punitive or exemplary - Distribution of profits - Wienberg Cinar and do not demonstrate a palpable and overriding error in the analysis and the judge's conclusion regarding the character original work of Robinson Curiosity - The fact that this is a project that has not been completed is not an impediment to the work to be protected to the extent that it is sufficiently developed and goes beyond the stage of ideas - The judge made errors that led him to pay a sum considerably exaggerated in terms of punitive damages - Appeal allowed in part.
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Wienberg, Cinar and several other individuals and companies are appealing against a decision allowing in part the action for infringement of copyright for Robinson and his company Nilem Productions Inc.. (Nilem). In 1982, Robinson drew the first sketches of the characters of the proposed children's television series to be called Robinson curiosity and he sets the characters and their character in a literary form. In 1985, the Copyright Office issues a registration certificate indicating that Robinson Robinson Curiosity is the author of the work and Nilem is the owner. Robinson and Nilem multiply efforts for the promotion and production of their work. They contact several companies, including Cinar. Considerable efforts have been exhausted. In September 1995, there is diffusion in Quebec the first episode of Robinson Sucro, work produced by Cinar France Animation and Ravensburger. Robinson and Nilem believe there are too many similarities between Sucro and curiosity. In 1996, they brought an action for infringement and damages against Wienberg and persons and companies involved in the dissemination of Sucro Robinson. The trial judge allowed the action in part and awarded damages totaling $ 5,224,293. The ruling was challenged in terms of the original character of the work of Robinson, the personal liability of certain defendants appellants and the calculation of damages. HELD: Appeal allowed in part. Wienberg and Cinar do not demonstrate a palpable and overriding error in the analysis and conclusion of the judge regarding the originality of the work Robinson curiosity. The fact that this is a project that has not been completed is not an impediment to the work to be protected to the extent that it is sufficiently developed and goes beyond the ideas stage . Although the Court does not share all the grounds of trial decision, Wienberg and Cinar not convinced that the judge committed a reviewable error in concluding that there was substantial recovery of the work Robinson Curiosity, except relates to music rights. In this regard, the judge erred in concluding the inseparability of the musical work and the literary work of Robinson Sucro. He also erred in holding the personal responsibility of Davin, CEO of France Animation. The facts do not establish that he knew the infringement or played any role in it. In addition to the legal fees of $ 1.5 million, Robinson and Nilem receive compensatory damages of $ 725,839, paying $ 260 577 in profits and punitive damages of $ 250 000 overall. Legislation cited: Charter of Rights and Freedoms, ss. 6, Art. 49 Quebec Civil Code, art. 1480, art. 1525, art. 1526, art. 1621, art. 2849 Under the Canada Business Corporations Act, art. 228 Law on Copyright Act, RSC (1985), c. C-42, art. 2, art. 3 (1), Art. 3 (1) (a), Art. 13 (4), Art. 14.1 (1), Art. 27 (1), Art. 34 (1), Art. 34 (2), Art. 35, art. 35 (1) Lawyers: Me Pierre Y. Lefebvre, Mr. Alain Y. Dussault and Mr. Silviu Bursanescu (Fasken Martineau DuMoulin LLP), counsel for the appellants, France Animation SA, Christophe Izard, Ravensburger Film + TV GmbH and RTV Family Entertainment AG. Mr. William Brock and Mr. Aub-Christine Gagnon (Davies Ward Phillips & Vineberg LLP) l f th ll t Ci C ti Ci Fil I d ti
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LLP), counsel for the appellants Cinar Corporation, Cinar Films Inc.. and questioned 3918203 Canada inc. Guy J. Pratte, Daniel Urbas and Marc-Andr Grou (Borden Ladner Gervais LLP, s.en.crl), attorneys for the appellant Christian Davin. Me Raynold Langlois, Patrick Dallaire and Mr. Dimitrios Maniatis (Langlois Kronstrm Desjardins LLP), counsel for the appellants Ronald A. Ronald A. Weinberg and Weinberg, as sole executor of the estate of the late Micheline Charest. Me Florence Lucas, Francine Martel and Mr. Laurence Bourgeois-Hatto (Gowling Lafleur Henderson LLP), counsel for respondents and Claude Robinson Nilem Productions inc. Michel Bernier (Bernier Gravel Vaillancourt), prosecutor questioned Helene Charest.
OFF 1 The appellants appeal against a ruling August 26, 2009 by the Superior Court, District of Montreal (Honourable Claude Auclair), allowing in part the respondents' action, with costs, made decisions declaratory, injunctive orders issued and
severally condemned Cinar, Ronald A. Weinberg, personally and as executor of the estate of the late Micheline Charest, Christian Davin, France Animation, Christophe Izard, Ravensburger Film + TV GmbH and RTV Family Entertainment AG to pay the respondents $ 2,724,283 with interest at the legal rate and compensation Additional from 5 December 1995; severally condemned Cinar, Ronald A. Weinberg, personally and as executor of the estate of the late Micheline Charest, Christian Davin, France Animation and Christophe Izard to pay the respondents $ 1,000,000 in punitive damages plus interest at the legal rate from the trial; severally condemned Cinar, Ronald A. Weinberg, personally and as executor of the estate of the late Micheline Charest, Christian Davin, France Animation, Christophe Izard, Ravensburger Film + TV GmbH and RTV Family Entertainment AG to pay the respondents $ 1,500,000 plus GST and QST, as legal fees, plus interest at the legal rate from the trial; severally condemned Cinar, Ronald A. Weinberg, personally and as executor of the estate of the late Micheline Charest, Christian Davin, France Animation and Christophe Izard respondents to pay the full cost of experts, with interest at the legal rate from the trial. 2 As for the action against McRaw Holdings inc. Helene Charest, Theresa PlummerAndrews and Peter Hille, she was rejected and the Court does not hear an appeal of that decision.
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1 - The context 3 The respondent Claude Robinson is an artist. In the summer of 1982, he drew the first sketches of the characters of the proposed children's television series to be called Robinson curiosity and he sets the characters and their character in a literary form. Between 1982 and 1985, he honed his project. 4 On 16 October 1985, the Copyright Office issues a registration certificate for Robinson curiosity that Mr. Robinson is the author of the work and that the respondent Nilem productions inc. (Hereinafter Nilem), a corporation of which he is the sole shareholder, is the owner. 5 Beginning in 1985, the respondents multiply efforts for the promotion and production of their work Robinson Curiosity: association with Pathonic, a company producing television programs, Cinar contract with him a mandate to make canvassing the U.S. market, meetings with representatives of Columbia Pictures and Disney Channel, participation in the international fair of MIP-TV in 1986 and 1987 in Cannes, a new association with film production company in Quebec, SDA Productions Ltd. (the SDA), incorporated by the latter of two commercial companies, etc.. 6 Unfortunately, considerable efforts have been exhausted by the respondents. Both corporations are incorporated by SDA dissolved December 12, 1990 Robinson Curiosity and the project was put on hold. 7 In December 1994, Mr. Robinson made a presentation of his project to his wife as well as friends and associates. He was persuaded to reactivate. In this context, it made some presentations one of which leads to an expression of interest on the part of Philips, who wrote, April 24, 1995: "As you are aware, Philips [...] Recently HAS created a catalog of software titles Entitled [...]. followings our investigation, We Believe That your project for a collection of CD-i/CD-ROM titles based on "Robinson Curiosity" Possess all the Criteria Necessary to Participate in this market program.. " In addition, Mr. Robinson is preparing a draft that presents a representative of Toy's "R" Us 8 These new opportunities do not materialize, because at the beginning of September 1995, there is diffusion in Quebec the first episode of Robinson Sucro, work produced by Cinar France Animation and Ravensburger. The respondents and their new partners believe there is too much similarity between Sucro and curiosity. Development projects of Robinson Curiosity is therefore suspended. 9 For the purposes of the appeal, it is not necessary to recount in detail the steps taken by the respondents to develop the project Robinson curiosity or to describe all the steps in the creation of Robinson Sucro which began in 1992. In this regard, the sequence made by the trial judge can be found (paragraphs 22 to 205 of the Judgement). 10 A notice shall be served Cinar, M. Weinberg, Micheline Charest and all partners in the joint production and dissemination of Sucro Robinson. A complaint is filed with the Royal Canadian Mounted Police. 11 On July 16, 1996, the respondents brought an action against the appellants. It has two components. The first relates to a violation of their copyright and moral
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rights in the work Robinson Curiosity in contravention of the Act, a copyright (the
LDA). The second part of the action concerns the liability of persons to which the respondents allege unfair conduct against them in violation of the obligations of the Civil Code of Quebec. In addition to the findings of such injunction, asking the respondents to the appellants for damages for psychological injury, damage their moral rights, breach of copyright and loss of profits. Finally, they ask for punitive damages and reimbursement of legal fees of counsel.
12 Specifically, the respondents continued the following:
Cinar Films and Cinar Corporation (hereinafter Cinar), co-producer of Sucro Robinson; Ronald A. Weinberg, president and shareholder of Cinar, vicepresident, secretary and shareholder of McRaw Holdings inc. And Micheline Charest, President of the Board, CEO, Cinar shareholder and president and shareholder of McRaw Holdings inc.; Animation France SA (France Animation below), co-producer of Sucro Robinson; Mr. Christian Davin, CEO of France Animation; Ravensburger Film and TV GmbH (hereinafter Ravensburger), co-producer of Sucro Robinson; Mr. Peter Hill, managing director of Ravensburger; RTV Family Entertainment AG (hereinafter RTV), born of the merger, March 29, 1999, Ravensburger with RTV Family Entertainment GmbH; BBC Worldwide Television (the BBC), vending Sucro Robinson; Theresa Plummer-Andrews, president of BBC; Mr. Christophe Izard, executive producer of Robinson Sucro in France Animation; Hlne Charest, sister of Micheline Charest, known by the pen name of Eric Alexander; McRaw Holdings inc. (Hereinafter McRaw) management company Micheline Charest and Ronald Weinberg. 2 - The Trial Judgement 13 After a trial lasting 83 days, the trial judge grants in part the respondents' action.
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14 In a detailed ruling, he concluded that the appellants had access to Robinson Curiosity (paragraphs 250 to 404). 15 His assessment of the evidence leads him also to say that Robinson Curiosity is an original work (paragraphs 405 to 436) and Robinson Sucro presents substantial similarities with this work (paragraphs 502-685). 16 Finally, the judge finds that the appellants have not established that Robinson Sucro is one independent nature to push the evidence of infringement. He therefore concluded that the infringement of the work of the respondents (paragraphs 686-827). 17 examines the responsibility of different actors in relation to the LDA. In addition to that of the three co-producing corporations Robinson Sucro, it retains the responsibility for Mr. Weinberg, Micheline Charest, Mr. Izard and Christopher M. Davin Christian because they are all aware of the violation of the respondents they have collaborated or which they have encouraged (paragraphs 828-843). 18 The judge said that Cinar, M. Weinberg and Micheline Charest, for their unfair practices, they also committed liability. He specifically criticized for using the documents they had submitted the respondents in connection with a contract agreement for the solicitation of Robinson Curiosity United States, and that, even after the expiry of the contractual agreement reached between Cinar and Pathonic (paragraphs 865-908). 19 In terms of damages, the judge awarded the respondents $ 5,224,293: $ 607 489 to compensate for the infringement of copyright (see paragraphs 994 to 1005), $ 1,716,804 for reimbursement of the profits made by the appellants (paragraphs 1006 to 1030), $ 400 000 for the psychological harm (see paragraphs 959-993), $ 1 million for punitive damages (see paragraphs 1036 to 1073) and $ 1.5 million for legal fees (paragraphs 1074 to 1103). 3 - The grounds of appeal 20 In their appeal briefs, appellants made various ways which can be grouped under the following headings:
1 2 3 4 -
The owner of copyright in the work Robinson curiosity. Exhibit P-18 makes it an integral part of the work of the respondents? The definition of the work of the respondents and its original character. Substantial recovery of the work of the respondents in Sucro Robinson.
5 -
Evidence of independent creation.
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6 7 8 -
The personal liability of Christian Davin under the LDA. The liability of the other appellants under the LDA. The liability of Cinar (duty of loyalty).
9 -
Access to the work Robinson curiosity.
10 -
Repairs ordered by the trial judge.
11 -
Convictions for violation of copyright.
11.111.2-
The compensatory damages. The profits.
12 - The psychological harm. 13 - The interest and additional indemnity. 14 - punitive damages. 15 - The legal fees. 4 - Analysis 1 - The holder of copyright 21 Weinberg argues that the respondents have no interest required to bring their appeal because they are not the copyright holders that they would have given the company's productions Curious Island inc. , created through the combination of Nilem with SDA. In the absence of an act of surrender in writing, under subsection 13 (4) LDA, Mr. Weinberg says the copyright is vested in Her Majesty in right of Canada
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pursuant to section 228 of the under the Canada Business Corporations Act 22 This argument is without merit.
2.
23 According to clauses 2.2 and 2.4 of a letter of agreement signed April 17, 1987 between SDA and Nilem, copyright was transferred to a corporation to be formed with the express condition that a shareholders' agreement to intervene between the parties within 90 days of the signing of the letter. However, the shareholders' agreement is not concluded within that time. It follows that the letter agreement was canceled by the passage of time as stipulated in clause 2.3 of this document. It also means that copyright has not been given under this Letter of Understanding:
2.2
In this regard, the parties shall within ninety (90) days after the date of this Act, together create a separate company which will devolve the management of the entire production and operation of any such series and WORK, (including, without restriction or limitation, names, drawings, descriptions and characters of all characters in the series and work). They will in addition, simultaneously with the creation of this separate company, (hereinafter called the "Company"), negotiate and ratify a shareholder agreement by which they are linked, in their capacity as shareholder of COMPANY. In the absence of any other agreement to the contrary signed by the parties, PRODUCTIONS INC NILEM. and SDA PRODUCTIONS LTD will be the two (2) only equal shareholders of the Company, follow a fifty percent (50%) each. It is expressly to execution by mentioned above conditions will cancellation of understood that the validity of this agreement is subject the parties, within the said period, each of the services in the preceding paragraph. The failure of any of these automatically, on expiry of the term specified above, the this agreement.
2.3
VESTING OF RIGHTS
Subject to full compliance by the parties to the stipulations above expressed in paragraph 2.2, the Company shall be vested with the copyright and all other rights subsist in the work [...]. [Emphasis added] 24 A shareholder agreement has also been signed between Nilem and SDA, coshareholders of companies Enterprises Curious Island (the Company) and The Curious Productions Island (the subsidiary), during the fall of 1987. The provision of this Agreement, which deals with its objectives, indicates who will own the copyright:
For the purposes of this Agreement, the Company will be invested to copyright and all other rights existing on the work and the series (including, without restriction or limitation, copyright and all other rights existing in names, drawings, descriptions and characteristics of the characters in the work and the series) The
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characteristics of the characters in the work and the series). The Corporation agrees to sell and sells its subsidiary, the rights relevant and necessary to the production and operation of series. NILEM acknowledges and agrees that the entire property of all the exclusive rights it holds in its possession and Claude Robinson, be and is vested in the Company undertakes to subscribe to this effect to any documents necessary to performance of such devolution of law.
[Emphasis added] The 25 Clause 16.2 provides that the shareholders' agreement is null and void if the company is dissolved or if the parties decide to end their relationship:
16.2
This Agreement shall automatically terminate and become null and void as to all parties hereto:
16.2.1
if the Company is declared bankrupt or makes an authorized assignment of property for the benefit of creditors generally, or becomes or is declared insolvent or is dissolved or wound up voluntarily; or
16.2.2
if the shareholders agree to terminate, by mutual consent.
26 By the termination clause, the parties agreed to a reinstatement if the purposes for which the partnership was established disappeared. This is exactly what happened. The companies were dissolved December 12, 1990, and therefore, recovered Nilem retroactively copyright. This conclusion is also consistent with the intent of the parties as appears from a document entitled "Acknowledgement" signed by them, 4 November 2008. 2 - Exhibit P-18 makes it an integral part of the work of the respondents? 27 The LDA protects the original expression, specific and individualized ideas. It does not protect ideas, however innovative they may be. In this sense, it promotes freedom of movement. 28 To be protected, the work must be "original", meaning that the author must have made efforts talented and intellectual decision. Even so, the court must first examine the originality of a work to determine if it enjoys the protection afforded by the LDA.
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29 Robinson Curiosity is an unfinished work, since the project has not materialized and remained at the stage of promotion. It may be more difficult to establish the elements and call in order to then determine whether the appellants, or either of them, have reproduced some "important", that is a part " substantial ". 30 In this context, the appellants argue that the trial judge erred in including in the work of the respondents listed the room "P-18". This piece consists of a set of several hundred documents that shall include a description of the nature of certain characters, scenarios and synopses, many comic books and a large number of drawings. The appellants, the judge should have been limited to parts P-27 (promotional newspaper prepared by Mr. Robinson and distributed at Cannes in 1987), P-30 (specifications have also prepared by Mr. Robinson) and P-210 ( several panels reproducing designs found in P-18). This would be the only aspects of the project selected by Mr. Robinson and the only parts particularized enough to be protected as original work, the rest having been rejected by the author. 31 In short, the parts P-27, P-30 and P-210 constitute the entirety of the work truly original, while P-18 was not caused in the exercise of the trial and the talent of Mr. Robinson. This would be at best a mix of unfinished ideas and not particularized which can not be an original work, except as to the portion retained in Exhibits P-27, P-30 and P-210. 32 The qualification of the work and determination of its original character are mixed questions of law and fact. In Betaplex inc. c. B & A Construction Ltd.
3,
Chief Justice Robert wrote for the Court:
[36] The appellants argue that the characterization of the work and its originality are questions of law. They are based on a passage of the Act on Copyright annotated Normand Tamaro:
The qualification of the work and its originality are questions of law. These are not the parts that characterize the work. Based solely on questions of fact and degree, it is for the courts to describe the work.
[37] It is clear that the meaning to Mr. Tamaro is that the qualification of copyright and originality are legal questions and not questions of law. The qualification of the work and determination of its originality consists in evaluating the facts to determine if the characteristics of a work enable it to benefit from the protection of the law. Therefore, it is a question of mixed fact and law.
[38] In Housen v. Nikolaisen [2002] 2 SCR 235, the standard of review depends on whether the alleged error is more in factual or legal in the question of mixed fact and law considered. When it is difficult to separate the legal principle of factual issues, the question is really a mixed response rigorous standard applies.
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[Citations omitted] 33 The appellant must demonstrate a palpable and overriding error for the Court to intervene, unless the analysis of the trial judge is deficient because of an error of law. Contrary to what they argue, it is clear that a comprehensive approach by focusing as called for
four
courts, the judge did not err in concluding that
such Exhibit P-18 is part of Curiosity Robinson the original work.

34 As mentioned earlier, this piece is made up of many elements of literature, art and graphics, in addition, result from the combination of effort, talent and trial of Mr. Robinson. Nothing suggests that this part of the work is not sufficiently arrested or attached in order to be incorporated into all of the work.
Chief Justice McLachlin described the concept of "original work":

35 In CCH Canadian Ltd. v. Law Society of Upper Canada
5,
16 I conclude that the correct interpretation is between these two extremes. To be "original" under the Act respecting the copyright, a work must be more than a copy of another work. There is no need, however, be creative, that is to say, innovative or unique. The key to protecting the expression of an idea by the copyright law is an exercise of skill and judgment. I mean the talent use personal knowledge, an ability or a skill acquired after the experiment to produce the work. I mean the ruling faculty of discernment or the ability to form an opinion or an evaluation by comparing various options to produce the work. This exercise of skill and judgment necessarily implies an intellectual effort. The exercise of skill and judgment that requires the production of the work should not be so trivial that it can be treated as a purely mechanical exercise. For example, any skill and judgment that might be the only change the font of a work to create an "other" would be too trivial to warrant the protection that copyright gives to a work "original".
[...]
24 The requirement that an original work must result from the exercise of skill and judgment is both functional and fair. The test based on "effort" is not strict enough. It unduly favors the rights of the owner and does not protect the public interest in the production and dissemination of intellectual works best. For cons, the criterion of originality based on creativity is too stringent. Creativity implies that something must be novel and not obvious concepts that are associated with more reason that the patent copyright. In comparison, the standard requiring the exercise of skill and judgment in the production of a work avoids these difficulties and provides for the grant of protection of copyright, a functional test that is appropriate and compatible with policy objectives of the Act respecting the copyright.
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36 Exhibit P-18 meets these requirements. The ideas it contains have been raised, fixed, and is embodied in literary form, or as an art form. The drawings and descriptions, scenarios and synopses, cartoons and photos it contains, even if they have not all been incorporated into the parts P-27, P-30 and P-210, remain a part of the work. 37 Of course, the fact that it is a project that has not been completed, remains relevant and should be considered in the qualification of the work. This may make the task more difficult, but it is not an impediment to the work to be protected to the extent that it is sufficiently developed and goes beyond the ideas stage, as was decided in Arbique c . Gabriele 6; Tele-Vision 84 inc. c. Corporation of the celebrations of the 350th anniversary of Montreal (1642-1992) 7, 8
Fenollar c. PRB Media, Preston c. 20th Century Fox Canada Ltd.

38 The author wrote Normand Tamaro, for its part:
9.
A work within the meaning of the law need not be completed. Even at the preliminary stage, the work of an author becomes a work when it certifies the factors determining the originality of a work.
10
39 There is not here, as appellants argue, a version of "completed" (P-27, P-30, P210) and a version of "Unfinished" (P-18) of the work . Impose choices of this nature to Mr. Robinson, as would the appellants, does not meet the LDA does not achieve its objectives and is a simplistic way to address the question of the originality of the work. In this case, it is clear that, by making promotional material P-27 and P-30, Robinson has used part of his work also larger. Thus, P-27 essentially sought to attract the attention of producers by giving a brief synopsis and a brief description of the main characters. Exhibit P-30 seems more complete, but it was still there, too, to present briefly the project, several drawings and scenarios that are found in P-18 being excluded. This does not mean that in doing so, Mr. Robinson, "says" his work and abandoned his right to the protection of the rest of the work, as appellants argue. A work can have multiple components. 40 In short, what is found in P-18 should or could be used if the project had materialized and is involved in all of the work. 3 - The definition of the work of the respondents and its original character. 41 The trial judge concluded that the work is original and is protected by the LDA. The appellants wrote that he failed a preliminary step, that of defining the work:
The definition of the allegedly plagiarized work is an essential step prior to the determination of a violation of copyright. It requires to identify the substance, since in fact only a recovery of the substance may lead to a finding of infringement [...]. 42 The Court does not share this view. 43 There is no indication that the court should, in a preliminary step, identify the
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substance of the work in determining whether infringement by reproduction of a significant, substantial, of the original work. Doing so would reduce the content of the work, would unduly restrict the scope of protection under the ADA and may limit, without cause, the exercise aimed at identifying the number of similarities that can be learned. This is not the substance of the work that must be compared to the copy, but the work as a whole to determine whether substantial recovery of the latter in print. 44 In the case Avanti 11, Justice Paul-Arthur Gendreau wrote:
Two particular elements of the quote by Justice McLachlin are interesting for the solution of our business. First, during the qualification of the work, an essential task and demanding, the court must use a comprehensive approach to determine whether the work produced is new and original and not the result of a simple bonding scattered pieces. Thus, the definition of what constitutes an essential and important part of the work may be more easily released. Second, this qualification must be made by studying the work in terms of intervention work and creativity of the author. And will be a substantial part of a work which occupies an important place in the whole and as a result of work of the artist, writer, filmmaker, playwright, etc.. 45 The Court must therefore question the originality of the work, without which there can, of course, be contrary to the LDA. He then proceeds to a comparative analysis for determining whether there are similarities between the original and the copy, similarities must focus on aspects that are important in all of the original work. This is emphasized by the Court of Appeal in Tele-Direct (Publications) Inc.. c. American Business Information Inc..
12:
21 The principles were formulated by Lord Reid in the decision Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. [1964] 1 All ER 465:
[Translation] The theory of dissection submitted by the appellant is the result of case law set out in violation of copyright, I must analyze the applicable law in this area. The copyright gives its owner the exclusive right to perform certain acts, including the "reproduce the work in any material form" (paragraph 2 (5)), and reproduction includes the reproduction of some importance of the work (section 49 (1)). In general, reproduction means copying, and this act does not substantially similar work carried out by an author or compiler using a self-employed and without copying. If there is copying, whether it concerns a large part depends much more on the quality and quantity of what was copied. We can examine in particular whether the copied portion is new or striking, or if it is the commonplace arrangement of ordinary words or known data. Consider whether the part copied itself could be protected by a right of author can sometimes be a convenient shorthand, but in my opinion, this is a shortcut, and it is more correct to first determine if the work as a whole is "original" and protected by law copyright and then
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consider whether the part taken by the defendant is important.
One can easily reach a poor solution when one begins by dissecting the work of the applicant and whether the Part A, in isolation, could be protected by copyright law and the party B, in isolation, could be as well, and so on. I think the fact that parts of a work can not be a copyright does not mean that all of the work can be. In fact, it has often been recognized that if the production of all the work asked enough talent and trial, this may be an important if not decisive in whether the work as a whole is protected by copyright.
[Emphasis added] 46 In this case, the ADA protects the expression of ideas emanating from the talent and trial of Mr. Robinson and found in Exhibits P-18, P-27, P-30 and P-210. It will therefore examine the importance of similarities in terms of all the work and not with respect to qualified parties prior to substantial loan to see if substantial work. 47 The trial judge supports his conclusion that this is an original work overall, including P-18, referring to several aspects of the evidence. 48 He cites the testimony of Seth Willenson, Cinar United States, who, fifteen years after interest in the project, still recognizes the work of Mr. Robinson saw the Exhibit P-18. To the judge, the work was "so much style and character" that the witness was still in memory, despite the passage of time. 49 He also noted the testimony of Andre Picard, Telefilm Canada, for whom the project was "exceptional" and still remembers it in 2008:
Well, it, I imagine these elements then ... it was still quite exceptional as presentation. T's just that in 1985 in projects that were submitted to Telefilm Canada, we rarely saw it there. Precisely the position I occupied was a new fund that was created when it was the rise of the independent industry and today is the elements found in more common but .. . but to have an illustration that is to say, visualization tools that are part of the vocabulary now the most common was rare. So maybe that's why I remember more than any other presentation. I remember the island, very distinctly the three huts, the three characters. However, especially this one with ... the specimen, the one with the test I would say. 50 In paragraph 429 of its ruling, the judge takes the description of the work such as outlines the formal notice to the defendants:
A format of television for children, for a period of thirty minutes (30 ') each, formats "live" and cartoons; A central character, ROBINSON CURIOSITY:
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is a bearded, myopic and curious journalist, explorer and human communications. It is on the lookout for discoveries and experiences of all kinds, relationships with others are similar to those of a child, it can be both generous, sulky, impatient, playful, friendly, curious, clumsy, angry , dreamy, careless, thoughtless, cook, tender at times, exuberant and distracted;
characters support including:
01/03 Friday holiday (HOLIDAY):
scientific spirit, educator, inventor, it is quiet and full of kindness toward Robinson;
3.2 BOOM BOOM (TIPTOE):
incarnation of the obese type, both complex and very helpful to the point of being irritating, generous, exuberant, but it is also likely, he has difficulty being understood;
CHARLIE 3.3
gruff, singles voluntary also attaches great he has a means
softened, is an adventurer and is bounded and awkward with women, the worst smells do not bother, he importance to the opinion that parents can have him, of transport.
3.4 LEON:
small, it is a gambler turns and easy to recognize, despite his disguise;
3.5 LAZY (Lazybones)
it is slow, his words are slow, pasty mouth and murky air, indolent, it is also a scapegoat, and he loves music and vegetarian cuisine;
3.6 GERTRUDE:
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After a big family, it is determined, autonomous and delicate in her movements, despite his stable temperament, it sometimes has mood swings innate sense of organization, discipline at work is essential to her femininity enviable bearing with one voice, defending the oppressed, tend to be indignant at the stupidity and has also traveled extensively.
theme aimed adventures of Robinson Curiosity in a South Sea island with lush vegetation, a volcano and the north-east, a half-moon beach, the island where the action takes place is inhabited and is located near another smaller island, and remains in contact with the continent; with respect to artistic expression and visual of the WORK:
photographic documentation and artistic expressions and movements Robinson curiosity drawings of other characters, an artistic and visual description of the island with its inhabitants, its vegetation and other components; hundreds of incidents of various comic books, drawings as boards and posters;
positioning studies at both educational and commercial and artistic; (...) with respect to the drama and literary WORK:
fifty-two (52) synopsis and eighty-two (82) programming topics including:
Robinson opens its advertising agency; The machine to travel back in time; Robinson goes to the movies; The tourism project; The Olympics; The elections in the island; The symphony orchestra; The eruption of the volcano;
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The feast of BOOM BOOM; Disease of the clock. 51 He concludes that the work Robinson Curiosity, including P-18, is an original work under the LDA. 52 The appellants do not demonstrate a palpable and overriding error in the analysis and the conclusion of the judge. Among the unique aspects of the work Robinson Curiosity include such a Robinson who, unlike the hero of the work of Robinson Crusoe Daniel Defoe, is not alone on his island
He shares his life with many people one of which, Friday holiday, is the antithesis of the classic Friday. There is also a very precise and detailed description of the character traits of the ten characters that populate the island, and especially their relationships with each other in the context of scenarios for understanding any This dynamic, which is an essential part of the work. Finally, all the drawings includes the work must also be identified in terms of the original expression of an idea.
53 As stated by the author
14
13.
Tamaro, citing Avanti supra:
All in all, one can summarize the case law on the fictional characters taking up the suggestion made by a U.S. judge: one character is less developed, the greater the chance of the author to claim copyright is limited. An author and penalized for not sufficiently serious a character. 54 In this case, the author Claude Robinson typed enough characters, their character, their relationships and their environment so that it is entitled to the protection of the LDA. 4 - The recovery of the substantial work of the respondents in Robinson Sucro 55 Section 2 15 LDA defines counterfeiting in connection with a work as
follows:
"Counterfeiting"
In respect of a work in which copyright subsists, any copy, including any colourable imitation, made or imported in contravention of this Act; [Emphasis added] 56 The LDA then describes the actions which are reserved to the holder of copyright:
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(1) For the purposes of this Act, "copyright" means the exclusive right to produce or reproduce the work or any substantial part thereof, in any material form, to perform or to represent or, if it is a lecture to deliver, in public, and if the work is unpublished, to publish the work or any substantial part of it, right s' means also the exclusive right: to produce, reproduce, perform or publish any translation of the work; [...] [Emphasis added] 57 Counterfeiting is not limited to the copy of the work or bonded, as it can be a colourable imitation as long as it resumes, if not all, at least a substantial part of or significant the work. 58 What is significant or important in a work? 59 First, it is not really a question of quantity. It is rather a question of quality, although both remain important aspects:
21 No, here, complete reproduction of the copyrighted work. Is there, however, reproduction of a "significant portion" of the work?
22 To determine whether a "significant portion" of a copyrighted work has been reproduced, not so much the amount of which was reproduced matters as the quality and nature of which has been reproduced. C. In Beauchemin Cadieux 10 BR 255, the court cited with approval Blanchet on page 281, this passage from Pouillet, Literary Property No. 507:
"It would be dangerous to stick exclusively to find the number or size of loans, it is their quality and their nature to look."
It would unduly reduce the protection afforded to copyright than to stop at a simple calculation of percentages or proportions in determining whether a violation. Part, in terms of copyright, can be as important as the whole, and this seems particularly relevant when it comes to arrangements of data in the public domain
16.
60 The author Tamaro said the orientation of the jurisprudence in this regard:
Noting, in the course of case developments, the need to give great importance to the outcome of the work of the author, rather than simply to recognize the amount of loans, the courts look to the criterion of importance quality of loans
17.
61 It is clear, moreover, that counterfeiting is assessed first by the similarities,
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61 It is clear, moreover, that counterfeiting is assessed first by the similarities, as, for example, the use of a well-known and important to a comic strip may be sufficient, despite the presence of numerous differences in the rest of the copy. In sum, the similarities to determine if borrowing a substantial part of a work, while such differences could support a claim of independent creation. 62 The trial judge was therefore justified to consider the existence of similarities
whose mandate was to identify precisely, if any, similarities and similarities between Robinson Curiosity and Robinson Sucro.
and rely on the testimony of the expert Charles Perraton 63 The appellants, who want the court considered and weighed along with the similarities and differences, some cite judgments, however, supportive of their
18,
Hutton v. c. Shaker MGM Distribution Canadian Broadcasting Corporation. (CBC) Preston 21 or c. Canada Ltd. 20th Century Fox. 22, it had not demonstrated either the originality of the work or the presence of significant similarities.
claim. Thus, whether in Cummings v. Global Television Network
20,
19,
64 As already noted, the ADA states that still disguised imitation counterfeit. In other words, the differences are sometimes used to conceal infringement, which can not make it disappear. 65 However, do not fall into the excess and conclude that any difference is only intended to cover counterfeiting. In the words of Justice Buffoni:
36 Certainly, the Act punishes what it calls "colourable imitation". And case law provides many illustrations of defendants who have tried in vain to disguise their plagiarism by putting, as the aphorism classic enough similarities to confuse the original purchasers, and enough differences to confuse the court.
37 But we many acts limit, it itself by
can infer that the accumulation of differences is bound to of disguise. Otherwise, the argument becomes circular: the would mean that more of a competitor seeks to distinguish a different expression of a common idea, the more he tries
23.
to "disguise" the package
66 In sum, the differences may have no impact if the loan remains substantial. Conversely, it is also possible that the result is a new and original work, which was simply inspired by the first. Everything is matter of nuance, of degree and context, so that in this respect as in many others, these are questions of fact that are first and foremost the trial judge
24.
67 It should also add that if there is substantial recovery, counterfeiting remains, despite a significant intellectual effort by the infringer:
57 Therefore, the true test of infringement is whether the alleged act is an act that only the holder of copyright has the right to do nder section 27 (1) incl ding reprod ction the original or a
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under section 27 (1), including reproduction the original or a significant portion of the work. The presence of a certain intellectual effort is not enough to overshadow the fact that there has been an important part of reproduction of a work. Those who adapt novels for the stage (musical) or for film also apply their minds, but if there is reproduction of a substantial portion of the original, there is still infringement if the owner's consent Copyright has not been obtained
25.
68 Thus, even if the infringer through his talent, has produced an "improved" version of the original work, which some might argue here that does not change the reality: the infringement notice and the author is entitled the protection of the LDA. 69 The appellants also suggest that the trial judge erroneously refused to consider the fact that many similarities can be explained by the source of inspiration common to both works, or Robinson Crusoe. This argument must be rejected. 70 The trial judge has, however, acknowledged that some similarities can be explained by this common source of inspiration. He qualifies, however minor, rightly, does not give them much importance. In fact, the similarities identified by the judge to conclude that a substantial recovery of the work of Mr. Robinson are no similarities can be explained by the common source of inspiration what Robinson Crusoe, the work of Daniel Defoe. For example, it is clear that the existence of other residents on the island or the reassuring presence of a companion totally different from the traditional Friday not intended as similarities resulting from the same source of inspiration. 71 With regard to the admissibility of the report and expert testimony Perraton, once again appellants are wrong. 72 It is true that, generally, the expert testimony is not necessary for the court to determine whether there is substantial recovery of a work. The comparison of two works by an ordinary, reasonable, would normally allow him to rule without the help of an expert, as also did the Court in Avanti, quoted above. 73 In this regard, the expert testimony does not meet eligibility rules differ. This is noted by Justice Rothstein, in the context of litigation for trademark:
[75] The presentation of expert evidence in cases involving trademarks does not differ from the presentation of such evidence in other contexts. In R. c. Mohan, [1994] 2 SCR 9, the Court set out four requirements to be an accepted expert evidence at trial: a) relevance, b) the need to assist the trier of fact, c) absence of any exclusionary rule, and d) a properly qualified expert. [...] 26 74 This testimony must be necessary, which counterfeiting because, in many cases, the determine if there substantial recovery of must be considered in the circumstances of testimony does not divert the attention of done. That's what Rothstein pointed out in 77, 79 and 93. What about here? is not always the case when it comes to judge is in a better position to the work. In short, the test of necessity the case while ensuring that this the court of the analysis on which it is Masterpiece, particularly in paragraphs
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75 must take into account the special situation in which the trial judge was confronted. 76 On the one hand, there was a work that was still in draft form, pregnant, and another, made a television series produced and broadcast. It was necessary to compare two works that were at very different stages of development. The comparison is more difficult, not least because Robinson Curiosity consists of a collection of many documents, text and drawings, which must then review and compare Sucro Robinson, a finished work. Moreover, respondents' allegations relate not only to graphic aspects of the work, but also on its literary aspects, especially in relation to the characters. The judge could lend themselves to exercise and examine every aspect of the two works without the help of an expert. It would, however, had to spend an excessive number of hours while an expert can also sort and analyze the various elements of the works for comparison. This was a way to make much more efficient, provided of course that the judge is the only master of the obvious conclusion. 77 In sum, part of the expert's report consisted of a Perraton support work for the court, which could also have it to spend itself. This is not new. In many cases, for example, the parties use an accountant to sort information and carry out mathematical operations that the judge is able to achieve, but this approach saves valuable time. 78 There is one other reason to justify by expert testimony Perraton. 79 Indeed, the report focuses on two distinct modes of comparison. First is the form "perceptible" of a work. This is the part that can be seen directly, or by the choice of shapes, colors, arrangements, etc.. Or by the choice of words and their articulation. In short, it's a concrete, joint, review a work by considering what the senses can detect directly. We can say that it is probably the aspect of a work to which the case law refers when prescribing an ordinary person should be able to find itself the similarities between two works. 80 The report addresses, however, another way of comparison, unlike the previous, may require explanations that could assist the court to conduct a benchmarking exercise. This is the form "intelligible" of a work. The expert Perraton explains that this is "the structure, composition and arrangement of its elements: characters, interactions between them, time shares, etc.. That's what we do not perceive directly, but can be deduced from the perceptible form. It is the understanding of the dynamics of the atmosphere, on grounds that the building work. " 81 In short, the ordinary observer is aware of what he sees, and can easily compare two works in this aspect. It is much less than what he does not perceive directly, which justifies the presence of an expert to make a comparison of the form "intelligible" of the work. Thus, for example, the expert Perraton links and similarity between two characters by examining and comparing their physical appearance, their traits and their relationships with other characters, to suggest that even if one is an animal and the other a human
the second is a cover of the first. We retain this proposal or not, we can conclude that a court could more easily without the help of an expert, such a linkage between an animal and a person. This is another reason for the d i ibilit f t t ti P t
27,
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admissibility of expert testimony Perraton.

82 The appellants argue also that the trial judge married, without reserve, the theory of expert and, for all practical purposes, abdicated its role. It is not. 83 The trial judge fully explains why he retains the expert testimony Perraton, methodology and most of its conclusions. The appellants do not see any palpable and overriding error in this regard. Moreover, the judge dismissed certain aspects of the report and testimony, demonstrating, once again, he considered the whole as it should, accepting some of the testimony and rejecting another. Thus, it has independently analyzed the similarities noted by the expert Perraton. He concluded that some were significant and others were not. It was therefore disagree with some conclusions. Therefore, if the court convicts a large part of this report, it is only after having analyzed and the findings of fact from which he believes necessary. It was his role and nothing justifies the intervention of the Court in this regard. 84 The judge released so many similarities between the two works and he speaks at length about this in his trial. 85 He keeps those he described as substantial. It should be noted however that the test is not the number of significant similarities, but that the recovery of the loan or substantial work. Despite the wording used by the judge, the appellants did not convince the Court that there is an error of law. Indeed, the result which the judge reaches is consistent with the rule. It is necessary to proceed in stages, and ask whether there are similarities before concluding that there is substantial recovery or borrowing. 86 What now of these similarities? 87 In the words of the judge, the question of the fabric and history is not an issue:
From the outset, the applicant acknowledges that there is no recovery of history, but recovery of the main characters and their characters and some drawings. 88 According to him, the evidence establishes several important similarities, both in relation to the look of the work with the traits of several characters and their relationships with each other. He concludes that a substantial recovery of Robinson curiosity. 89 It must first be emphasized that for this purpose, the judge is not based solely on the testimony of the expert. 90 It is based inter alia on the testimony of Mr. Thomas LaPierre, director of writing at Cinar at the time of production of the series Sucro Robinson, who said he recognized Claude Robinson from the moment he first met Once, in 1996, given its strong resemblance to the character of Robinson Robinson Sucro. He added there may be an obvious similarity between Robinson and Sucro Exhibit P-30. 91 The judge also cited the testimony of Mr. Serge Lalonde, an employee of Pathonic.
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j g y g , p y It states that "the main character looks funny with that of Claude Robinson as well as houses." After seeing the broadcast of Sucro Robinson, he was so convinced it was the work of Mr. Robinson that he unsuccessfully "tried the generic names of people I knew, including Claude Robinson." 92 There is also the testimony of Ms. Madeleine Lvesque, who knew Mr. Robinson's documentation, including drawings, to be prepared for a presentation in Cannes. She described her reaction after seeing Robinson Sucro with her children at home:
Okay. And what was your reaction? A Well, I thought immediately that this was the project of Claude and he had finally managed to do so occur.
Q Okay. And then you remember the draft Claude Robinson?
Absolutely, yes, yes.
93 It states:
Q R
And when you say that you hit ... Hmm, hmm. Q ... what hit you when you look Sucro Robinson?
A There is nothing that struck me as such. That is to say it was clear to me. There was no question for me was the issue of Claude. Claude was the draft. 94 Franois Champagne, former president of the SDA production company, was involved in lobbying for the project Curiosity Robinson. It also demonstrates the similarity of the characters of both works. 95 The writer Stephen Ashton, used by Cinar production of Sucro Robinson, explains how he has responded with the latest knowledge of the work of Mr. Robinson:
[...] When I first heard about it [Robinson Curiosity] II was quite
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surprised at how it seemed to Be Ninety-Nine percent (99%) of "Robinson Sucro" that we HAD WORKED it. The drawing style, the structure, the story and all. II have admitted to II was quite shocked.
Q-When you say And the similarities do you recall what you saw from "Robinson Curiosity"?
A-
The characters, the structures ...
96 He then gave several specific examples. 97 Note finally statement to the RCMP by Peter Sander, head of development at Cinar: "After hearing Claude Robinson's description of Robinson Curiosity history project, my immediate reaction WAS" So that's from Where Robinson Sucro cam '. " 98 In sum, in addition to expert testimony Perraton, there was more evidence that could allow the judge to conclude to the existence of important similarities between Robinson and Robinson Sucro curiosity. 99 In regard to the similarities now accepted by the judge as a result of expert testimony Perraton, they are fully described in paragraphs 505 to 663 of Judgement. 100 Without citing the ruling in the text, key elements of similarity that are selected:
The main character, Robinson: graphic resemblance and likeness of character: both are sulky, childish, moody, in the development process, clumsy, naive, versatile, messy, curious, affectionate and generous, but sometimes angry and impatient ; Friday holiday and Wednesday: graphic resemblance, similarity of names and likeness of character: father figures and
28
therefore paternalistic in their dealings with Robinson, scientific, intelligent, scholars, scientists, inventors, teachers, caring;
Boom Boom and Duresoire (the real name of the latter being Hildegarde Van Boom Boom): two large characters physically and likeness of character may, irritable, emotional. It should also be noted that in the first synopsis Sucro Robinson (The treasure hunt), the name Duresoire was associated with a pachyderm;
29
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hi
bl
ll
hi
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Gertrude and Gladys: graphic resemblance (young, pretty, tall, thin and elegant, they both have freckles) and character: women of character, with very specific ideas, independent, autonomous; Charlie the pilot and Courtecuisse: graphic resemblance and character: unkempt, culinary tastes strange and repulsive, gruff, but which lose their ability to Gertrude, for one, and Duresoire to another; Lazy and Dimanchemidi: graphic resemblance and character: half-closed eyes, extremely lazy, sleeping or struggling against sleep at any time, very slow movements, speak slowly, slurred speech; Brisk and Captain General Schloup: graphic resemblance (tall, slim, elegant, slender faces and sunken cheeks) and character: dishonest, give orders; Leon the Chameleon and Petitevacances: no graphic resemblance, but resemblance of character and mischievous pranksters, they love the costumes, metamorphose despite some characteristics that allow to recognize, however, and often carry with Robinson; The main house, a bungalow in the shape of "L", topped with a thin pipe used in fireplace and an observatory, or an observation tower conical, with a telescope, or a telescope, a retractable dome, illuminated by an ox-eye, provided with a porch canopy supported by bamboo trunks found in another drawing of Robinson Curiosity; The many repetitions, that is to say that the infringer uses the same loan more than once for different characters. Transport vehicles; The logo used in both works. 101 We may disagree with some of the similarities identified by the judge (for example, the similarity between graphic and Duresoire Boom Boom). The fact remains that the evidence allowed him to conclude that substantial recovery of the work of Mr. Robinson, even if the frame is not an issue and even if what the final product contains a Sucro Robinson large number of new and distinct Robinson curiosity. It is the combination of visible and intelligible elements is decisive here. 102 Finally, the other criticisms made by the appellants can not be further considered. Thus, it is incorrect to say that the judge erred in not ruling out the similarities from the public domain. He did so in particular paragraphs 620 and 621 of the trial. He also dismissed the similarities specific to children's programs on
As for when is the story of Robinson Sucro, it is not relevant, because the respondents do not claim that there was recovery of the scenario.
which the appellants had caught his eye 103 In conclusion, even if the Court does not share all the grounds of trial decision, the appellants did not convince the judge has committed a reviewable error in concluding that there was substantial recovery of the work Robinson Curiosity, except in regard to music rights as we shall see
30.
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except in regard to music rights, as we shall see. 5 - Evidence of independent creation 104 It must be remembered that the purpose of proof of independent creation to rebut the evidence of infringement:
[40] With respect for the contrary opinion, I believe that the appellant could have partially right on this point: the law in fact recognizes that, in the absence of direct evidence or not, the circumstantial evidence resulting from a substantial number of similarities, if not expressions, formulas and terms identical or error common to both texts, can actually create a presumption of infringement (Cadieux v. Beauchemin). The presumption then reverses the burden of establishing that the defendant did not infringe the plaintiff's work and his book is an independent creation
31.
105 The burden of proof rested on the appellants. They do not demonstrate that the trial judge committed a palpable and overriding error in dismissing their claims. As noted by Judge Morissette, the appellant who challenges the factual findings of the trial court has a heavy burden:
[111] The appellants respond on this point that the negligence and carelessness which they have shown is not sufficient for a finding of intentional interference with the rights of the respondent. Clearly, their interpretation of the facts in evidence differs from that of the judge, but it is not sufficient to establish the existence of a palpable and overriding error (or critical) in the conclusions he has drawn. I recall that Justice Fish wrote on this subject, in a recent decision, unanimous Supreme Court of Canada [R. c. Clark, [2005] 1 SCR 6, para. 9.]
Appellate courts can not change the inferences and conclusions of fact by the trial judge, unless they are clearly erroneous, unsupported by evidence or otherwise unreasonable. In addition, the error must be clearly attributed noted. It must also demonstrate that it has affected the result. The words "palpable and overriding error" expressed in a concise and eloquent that standard well established [a reference to the following seven decisions of the Court on this issue, ranging between 1976 and 2002].
We must therefore go beyond the simple stage by ressassage punctilious all seen and heard what the trial judge in the trial to identify an obvious weakness in the light of the evidence (hence the manifest), weakness may distort all or part of the formal judgment (hence the decisive nature).
32
106 This is particularly true where, as here, the judge's findings are based on its assessment of the credibility he has given to the appellants' witnesses. The judge has spent some 136 paragraphs in the analysis of this issue and found several
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disturbing elements in the version of these witnesses. It is not necessary to report all its findings. A summary statement is sufficient. 107 The only witness heard on the issue of graphic design is Jean Caillon. This appears in the credits of the show Sucro Robinson as a creator of the main characters and graphics copyright research additional characters. But his testimony, the judge rejected, is confused, hesitant and unconvincing. 108 In addition to numerous disturbing examples cited by the judge, the testimony of Mr. Caillon is full of "probably" to "may" and "I guess," making it a very credible witness or, the very least, unreliable. The appellants would have had the opportunity to show other designers of the show Sucro Robinson. They are seven in number in regard to the characters, in addition to those who have worked with decorations. The appellants chose not to give evidence and be limited to the testimony of Mr. evasive and nebulous Caillon. 109 As for the evidence of independent literary creation, it relies heavily on the testimony of Mr. Izard, the brainchild of designer and executive producer of the series, according to the generic Sucro Robinson. Again, the judge rejected his testimony and explains it fully, with many supporting examples. It is true that the judge is hard, some would say excessively harsh, at the place of the witness. It was not necessary to be much, but the fact remains: in the exercise of its discretion, the judge concluded that the witness is not credible. Nothing suggests that this conclusion is due to a palpable and overriding error. 110 The appellants argue that the judge seems to suggest that proof of access to the work of Claude Robinson prohibits evidence of independent creation:
[802] One thing is certain: Izard had access to the work of the applicant and representatives of CINAR also demanded changes. Izard is the conductor of any literary production and leads Caillon. Due to its contamination by some that he had access to the work of the applicant, he can not claim to be independent and lead an independent production. 111 If the judge refused to consider evidence of independent production for the sole reason that Mr. Izard had access at work, it would be a mistake of law. But this passage does not give the sense that the appellants. In fact, any analysis of the judge on the allegation of independent creation, which is very long (see paragraphs 680-822), shows that he would certainly not reject it for that reason. In fact, in this extract, which is in the latter part of his analysis, the judge seeks rather to demonstrate the complete absence of evidence of independent creation. The choice of words is perhaps not the best, but again, one thing is clear: the judge does not believe the witnesses, so that there can be a preponderance of evidence of independent creation. 112 Following this exercise, the judge concluded, at paragraphs 823-826:
[823] In copyright issues in education, the authors write:
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Which is well established, however, is that the literal reproduction of a work as a whole is still a counterfeit. By cons, where the reproduction covers only part of a protected work, the judge refused to consider the quantitative criterion to retain rather qualitative criterion. The qualitative criterion expresses the idea that once we reproduce what is the essence, substance or vital part of a protected work there is infringement. This can happen even if we can reproduce only a few lines of text also important or a single character in a cartoon, or a few bars of a musical work. Each time, the judge will apply to the reproduction position relative to the whole of the original work. If it finds that the reproduction takes the essence of the original finding of infringement is
33.
[824] Considering the existence of significant similarities, including:
Drawings of the main character curiosity; The house "L" and his observation tower; Characters of the main characters disguised as humans, such as Boom Boom in Duresoire, the lazy Dimanchemidi, Leon the chameleon Petitevacances; The camouflage Friday a holiday Wednesday, Charlie in Courtecuisse of Schloup in Brisk;
[825] Considering the conclusion of Dr Perraton that the Court endorsed and which reads as follows:
Thanks to the systematic survey of the similarities and links observed and inferred in the characters and their relationships, or the spatio-temporal context and scriptwriting elements that organize the action, the comparative analysis has in fact reached a level of completeness enough to respond affirmatively to the original question: yes, there are between Robinson and Robinson Sucro Curiosity, similarities and links that are visible not only in quantity by the resumption of perceptible forms, but especially in quality by the resumption of the intelligible form.
[826] The Tribunal finds that the defendants have reproduced the essence, substance and vital part of the work curiosity. 113 The appellants do not demonstrate that this conclusion is unreasonable. It is based on the evidence and does not make an error of law or mistake of fact and palpable, except as regards the responsibility of Mr. Davin. 6 - The personal liability of Christian Davin under the LDA
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114 In January 1989, Mr. Davin joins France Animation as general manager. It will eventually be named president and CEO of the company and held that position until his departure in February 1997. 115 In 1991, France Animation offers to Mr. Izard a freelance contract to participate in the production of television series including Albert the 5th Musketeer, Cinar co-produced with BBC and Ravensburger. 116 In 1992, France Animation turns back to Mr. Izard and asked to develop a new project. The latter proposes the idea to parody Robinson Crusoe. On October 8, 1992, Mr. Izard signed a contract with the copyright France Animation in which it ensures that the work Sucro Robinson is an original concept that he is the author. 117 The trial judge retains the personal liability of Mr. Davin under the LDA. It deals with this issue in paragraphs 835-839 of its decision:
[835] Davin is the CEO of France Animation at the relevant time, from 1989 to 1997. It is the character teflon in this case. It is never directly accused but nevertheless it is impossible that he remained in ignorance of maneuvers violation of copyright, both by his relationship with Weinberg and Charest as its reporting relationship to Izard.
[836] Indeed, Izard testified that he had been treated generously by Davin in his hiring. He also said he was afraid "of losing his job" if he did not participate in the scheme WASH, that is to say McRaw benefit through royalties Erica Alexander of SACD which she was not entitled.
[837] Who could make him "lose his job", but he who granted him his contracts?
[838] Davin is an accomplice in maneuvers Cinar and France Animation in the bilateral agreements in which they have distorted the percentages of participation, without which the two corporations were ineligible for grants because they are not consistent with the requirements and conditions of the bilateral agreement between France and Quebec.
[839] It is impossible Davin was not aware of these maneuvers and plagiarism and personal responsibility must be selected as well as that of France Animation. 118 M. Davin argues that his status in France Animation is not sufficient for personal liability and that under the applicable rules of copyright, the evidence must establish his conscious participation in the wrongdoing of the company:
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If the concept of Separate legal existence of the corporation IS Given effect, a director or officer Should Not Be linkable for Infringement of intellectual property rights Merely as a consequence of his or her position with or relationship to a corporate defendant. However, in specific situations it May Be Appropriate to "lift the corporate veil" and impose personal liability on directors and officers for a corporation's infringing Activities. The concept of "lifting the corporate veil" is Designed to Prevent directors and officers, are guilty of intentional Who Infringement, escaping from personal liability by using a puppet corporation controlled by 'em.
[...]
The [Federal Court of Appeal in Mentmore] set out the test for the tax liability of a director or officer Against as follows:
... There Must Be Circumstances from Which It Is reasonable to Conclude That the purpose of the director or officer Was Not the management of the manufacturing and selling activity of the company in the ordinary course of historical relationship to the purpose it Deliberate, willful and Knowing pursuit of a course of conduct That Was Likely to CONSTITUTE Infringement or indifference to the Reflected year risk of it. The precise formulation of the test IS Appropriate Obviously one has difficulty. Room Must Be Left for a Broad appreciation of the Circumstances of Each box determines whether to have a matter of policy They Call for personal liability.
34
[Emphasis added] 119 The judge recognized that the evidence did not establish that Mr. Davin had direct knowledge of the infringement or had participated in the conspiracy to counterfeit. So using a proof by presumptions that had to be demonstrated involvement in or knowledge of the infringement. In this regard, Mr. Davin argues that the evidence did not meet the conditions laid down by Article 2849 CCQ:
Assumptions that are not established by law are left to the discretion of the court should take into consideration that those who are serious, precise and consistent. 120 This provision was interpreted by the Court in a decision making authority:
To conclude this, I bought into the notion had Larombire standard that applies in this case and it states so in its treaty obligations:
Presumptions are serious when reports due to the unknown fact is known as the existence of an established, by a powerful induction,
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the existence of the other (...)
The presumptions are accurate when the inductions that result from the known fact tending to establish direct and particularly the fact unknown and disputed. If it was also possible to draw conclusions different and even contrary, to infer the existence of diverse and contradictory facts, assumptions would have no character and no precision that would create doubt and uncertainty .
Finally, they are consistent, when, all having a common origin or different, they tend, in whole and their agreement to establish the fact that it is to prove ... Yes .. they contradict ... and cancel, they are more consistent, and certainly one can enter the mind of the magistrate. 35 121 With respect to the trial judge, he erred in holding the personal liability of Mr. Davin under the LDA. 122 First, the facts alleged in paragraphs 836, 837 and 838 of the trial are not relevant to establish that Mr. Davin was aware of the infringement or had any role in it, and that, even if they were relevant in assessing his credibility. On the other hand, paragraphs 835 and 839 do not contain any of Judgement is such as to justify the conclusion that "it is impossible that Mr. Davin was not aware of these maneuvers and plagiarism." Judgement is impaired at the motivation of knowledge by Mr. Davin counterfeiting or participation in it. 123 Let us open a parenthesis to deal with two facts that were not directly related to the existence of the infringement, but have had a considerable impact on the judge's findings with regard to the credibility of those involved, their responsibilities and in terms of punitive damages. 124 In order to obtain the Society of Dramatic Authors and Composers (the SADC) payment of charges due to the authors, Micheline Charest has established a scheme of appointing a writer for the episodes of Robinson Sucro produced by Cinar. It therefore included a fictitious name, Eric Alexander, the pen name of his sister Helen, who in reality did not write any of the scenarios. Because of this deception, Hlne Charest has received royalties which it was not entitled. It retains 16% interest and paid the rest McRaw Holdings inc., A management company of which Mr. Weinberg and Micheline Charest are the shareholders. 125 It is assumed that the charges have been affected without the right to the point that in December 1999, Cinar has paid $ 351.80 in 1096 SADC. As Cinar, Mr. Weinberg and Ms. Charest, Mr. Izard knew that charges were collected without the right through the author's fictional Erica Alexandre. 126 Cinar also obtained without the right financial support from Telefilm Canada pursuant to the Agreement on relations in the field of television between the
(hereinafter the Agreement) which aims to promote the development of television coproductions between France and Canada. According to Article 3 of the Agreement, to be eligible for the benefits provided therein, companies must meet certain conditions including a respective contributions of
Government of Canada and the Government of the French Republic
36
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must meet certain conditions, including a respective contributions of 20% to 80% per program.
127 Contrary to what was presented to the agencies responsible for implementing the Agreement, it appears that the real contribution of France Animation and Cinar was 90% for the first and 10% for the second, making them ineligible for grants. 128 Cinar has received without entitlement $ 2,594,055 that was required to repay Telefilm Canada. As Cinar, Mr. Weinberg and Ms. Charest, Mr. Davin knew that the respective contributions did not receive subsidies under the Agreement. 129 In law, it is not possible to infer from these facts the existence of collateral or the counterfeiting of participation in a violation of copyright. These facts, however, can be used to assess the credibility of all those who contributed, directly or indirectly, for the maneuvers without the right to obtain financial assistance. 130 This means that the respondents had the burden of establishing the facts upon which their claim that Mr. Davin has been involved in a conscious and deliberate violation of their copyright. 131 In their brief, the respondents are trying to overcome the shortcomings of the trial decision and they mention a few specific facts in an attempt to establish the participation of Mr. Davin to counterfeiting or knowledge of it. These are the relations of the latter with the couple Charest-Weinberg, its reporting relationship with Mr. Izard and his meeting with Mr. Robinson, in 1984. 132 Such a conclusion here is speculative. It does not meet the applicable standard of proof by presumption. This requires that the known facts such as to make probable the existence of the fact that we want to lead. The existence of relations between Mr. Davin and Charest-Weinberg couple does not mean that the former knew the latter had exposed the work of the respondents to Mr. Izard. In addition, the fact that Mr. Weinberg brought with him certain documents related to Robinson curiosity during a trip to France in 1989 does not assume that they were presented to Mr. Davin. The hierarchical relationship between Mr. Izard - a freelancer who Animation France a mandate to create a new television series - and Mr. Davin does not indicate knowledge of the infringement by it or its authorization to produce a work in violation of protected rights. Finally, the meeting between Mr. Robinson and Mr. Davin in 1984, meeting during which they discussed the project Robinson curiosity, without examining the work
does not believe that the knowledge that had Mr. Davin was such that he could see that Mr. Izard had forged.
133 The presumptions that can be drawn from these facts are not serious, precise and consistent. It is also reasonable to infer that Mr. Davin could not recall a meeting several years old, he has never been exposed to the work of Robinson and the maneuvers were counterfeit made without his knowledge by the couple and Mr. CharestWeinberg Izard, as he testified. 134 It should also be noted that the respondents have argued that using the alternative. Their primary means 135 is to support Mr. Davin is a "producer" under the ADA and that in these circumstances, ignorance and good faith is not a valid defense. They write that Mr. Davin has "personally authorized and was involved in the series Sucro
37,
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Robinson." What about 136? 137 Names of France Animation, Cinar and Ravensburger appear in the credits emissions Sucro Robinson as co-producers and those of Mr. Davin and Ms. Charest therein as "executive producers" in France and "executive producers" in Canada. Mr. Davin describes the function of executive producer as follows:
Mr. Davin - The Executive Producer - this is different from the terminology you use in Canada - in France, is responsible in terms of overall management of production, the artistic, financially, but mostly it is the guarantor of a successful conclusion. It is he who is liable for the film.
The executive producer, with us, is the producer manufacturer. Often the two are combined, but not always. In Canada (this probably comes from the English), the executive producer - executive producer - is the executive producer, executive producer and French is the executive producer in Canada. It should be stated. 138 The question that arises is whether Mr. Davin has violated the copyright of the respondents in exercising their exclusive right to produce or work authorized under the provisions of the LDA production Sucro Robinson:
The following definitions apply to this Act.
[...]
"Producer" The person performing the operations necessary for the making of a film, an imprint of a perforated roll or other contrivance by means of which sounds may be mechanically reproduced.
(1) For the purposes of this Act, "copyright" means the exclusive right to produce or reproduce the work or any substantial part thereof, in any material form, to perform or to represent or, if it is a lecture to deliver, in public, and if the work is unpublished, to publish the work or any substantial part of it, right s' means also the exclusive right: to produce, reproduce, perform or publish any translation of the work;
[...]
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Is included in this definition the exclusive right to authorize such acts.
27. (1) Is considered to have infringed the copyright in a work who, without the consent of the copyright owner, performs an act that under this Act only the owner has the option to run .
[...] [Emphasis added] 139 The application of these provisions supports the conclusion that a violation of copyright if a person takes an action reserved for the owner of the copyright, particularly in paragraph 3 (1) LDA, which includes the act of produce the work and to authorize the production. 140 The title attached to a person is not determinative. It should rather be related to the functions performed by it and all the circumstances to determine who is the real holder of power or charge. 141 In this case, those who carried out the operations necessary for making Sucro Robinson, under the above definition of the word "producer" are France Animation, Cinar and Ravensburger. It is they who have committed the necessary staff to carry out the series and it is they who have assumed responsibility for managing the production of Robinson Sucro both artistically and financially, as appears from contracts between the interested parties
While these corporations have acted through officers or employees. These are not in the legal sense, a producer as such, but the officers and employees of a producer. These include Mr. Davin in the case of France Animation, Mr. Weinberg and Ms. Charest and Cinar M. Hille for Ravensburger.
142 At the risk of repeating ourselves, officers and employees of a company acting for the latter and not on their own behalf. As a result, they can not be held liable for wrongful acts attributed to the company unless they have participated in a conscious way. 143 If Mr. Davin can not be held responsible for the violation committed by the three co-production companies, can it be to have "authorized" the production of Robinson Sucro? 144 The notion of consent as defined in subsection 3 (1) in fine LDA was examined by
38.
the Supreme Court in CCH Canadian Ltd. v. Law Society of Upper Canada
39:
Under s. 37. 27 (1) of the Act respecting copyright is a violation of copyright the performance of an act that only the owner of copyright under the Act, the Faculty of complete, including authorizing the exercise of his rights. Authorize a person to do something that is not an infringement does not infringe the copyright. See Composers, Authors and Publishers Association of Canada Ltd. c. CTV Television Network Ltd.., [1968] SCR 676, p. 680. The editors argue that the Society is liable under this provision, the breach of copyright for allowing users tacitly the Great Library to copy works in
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allowing users tacitly the Great Library to copy works in contravention of the Act on Copyright .
38 "Allow" means "sanction, approve or support" ("sanction, APPROVe and countenance"): Muzak Corp.. c. Composers, Authors and Publishers Association of Canada, Ltd.., [1953] 2 SCR 182, p. 193, c. In Tervagne Beloeil (Town), [1993] 3 FC 227 (1st TD).. In determining whether a violation of copyright has been authorized, must be attributed to the word "countenance" the strongest sense mentioned in the dictionary, is [sic] "approve, sanction, permit, promote, encourage": see The New Shorter OED (1993), vol. 1, p. 526. Authorization is a question of fact which depends on the circumstances of each case and can be inferred from acts that are not direct and positive acts, including a sufficient degree of indifference: CBS Inc. . c. Ames Records & Tapes Ltd. [1981] 2 All ER 812 (Ch. D.), p. 823-824. However, this does not authorize violation of copyright that the mere use of a device that can be used for this purpose. Courts should presume that a person who authorizes an activity authorized only within the limits of the law: Muzak, supra. This presumption may be rebutted by evidence that there was some relationship or degree of control between the alleged perpetrator of the authorization and those who have violated copyright law: Muzak, supra; In Tervagne, supra . See also JS McKeown, Fox Canadian Law of Copyright and Industrial Designs (4th ed. (Leaf)), p. 21-104 and PD Hitchcock, "Home Copying and Authorization" (1983), 67 CPR (2d) 17, p. 29-33. [Emphasis added] 145 There are two ways to authorize a violation of copyright. The authorization may result from positive acts: the encouragement or the express permission fall into this category. It can also result from a passive situation, for example, for failure to perform an obligation control
40.
146 In this case, the evidence does not suggest that Mr. Davin has authorized the violation of the copyright of the respondents. As already mentioned, the existence of relations between Mr. Davin and Charest-Weinberg couple does not mean that Mr. Davin knew that the work of the respondents had been exposed to Mr. Izard. The hierarchical relationship between Mr. Izard and Mr. Davin does not indicate knowledge of the infringement by it or its authorization to produce a work in violation of protected rights. Finally, the meeting between Mr. Robinson and Mr. Davin in 1984 does not allow to conclude that Mr. Davin knew the work developed to detect that Mr. Izard had forged. 147 Rather, the circumstances tend to establish that Mr. Davin ensured the authorship of the work by requiring the signing of a copyright in which Mr. Izard guarantees that it is France Animation the designer of the original idea of Robinson Sucro. 7 - The responsibility of the other appellants under the LDA 148 Since we have concluded that there was an infringement and violation of the respondents in the production of Robinson Sucro, we must remember the responsibility of the three producers, under the LDA: France Animation, Cinar and Ravensburger. 149 Th li bilit f M W i b i di id l d t f th t t f
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149 The liability of Mr. Weinberg, as individuals and as executor of the estate of the late Micheline Charest and Mr. Izard were also detained under the ADA because the trial judge concluded that their conscious participation and deliberate infringement of copyright for the respondents. In this regard, individuals have not shown the existence of a reviewable error by the trial judge. 150 On appeal, Cinar is trying to distance themselves from Mr. Weinberg and Ms. Charest. She argues that she was a victim of fraud arising from its directors and such acts can not be booked. This about-face surprises. It is even acceptable in the circumstances as these three defendants stood together in the first instance. In addition, the proposal is based Cinar, to some extent, on a false premise, since the actions of Mr. Weinberg and Ms. Charest were not made at the expense of Cinar, but they were to make him realize a profit. 151 Accordingly, the responsibility of France Animation, Cinar, Ravensburger, Mr. Izard and Mr. Weinberg, as individuals and as executor of the estate of the late Micheline Charest, is confirmed, this under the LDA. 8 - The liability of Cinar (duty of loyalty) 152 It is not necessary to address this issue which was presented by the respondents in the alternative to liability under the LDA. 9 - Access to the work Robinson Curiosity 153 The judge's finding that the appellants had access to the work Robinson Curiosity is not really challenged on appeal. Indeed, without admitting that this is the case, appellants concede that they can not demonstrate in this respect there is a palpable and overriding error. 10 - Repairs ordered by the trial judge 154 The question of liability of the appellants being set, it remains to consider the issue of reparations ordered by the judge. In fact, this is not one, but several issues raised in this regard. 155 As the Court has held no responsibility of Mr. Davin against respondents, it is understood that the convictions against him will be deleted. 156 To understand how the issues raised by appellants arise in the trial decision, it is appropriate to indicate here how the judge dealt with the repairs in sections 15 to 22 of its decision. The table of contents found in the preface of it is written on these issues as follows: 15 - The possession and ownership and accountability
15.1 -
Accountability
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16 -
The moral rights of the applicant under the Act, the Copyright
16.1 -
The right of paternity
16.2 -
The right of the author to maintain the integrity of his work
17 - hurt feelings
17.1 -
The quantum 18 - Damages and profits
18.1
Economic damages under the ADA
18.1.1 -
Compensatory damages of copyright
18.1.2 18.1.3 -
Profits The calculation of profit
18.1.3.1 18.1.3.2 -
All music rights Redemption of territories
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18.1.3.3 -
Contracts do not arise from the alleged infringement (D-8)
18.1.3.4 -
Other
18.1.3.5 -
Income from Christophe Izard 18.1.4 - Summary
19 - Exemplary Damages 20 - Fees 21 - The interest and additional indemnity 22 - Conclusions 11 - Convictions for violation of copyright 157 The appellants argue first that the trial judge misapplied Article 35 LDA, committing several errors in this regard. 158 Here's how this article reads:
35 (1) Whoever violates the copyright in a work protected under this Act is liable to pay to the owner of copyright has been violated, the damages that the holder has suffered because of this violation, and in addition, such proportion that the court considers just, profits that the infringer has made in committing the violation of copyright.
In determining the profits, the applicant is required to establish that the revenue or proceeds from the publication, sale or other illegal use of the work, or representation, hearing or unauthorized execution of work remained protected, and the defendant must prove every element of cost which he alleges. 159 As can be seen, the legislature established the first paragraph of the article a clear distinction between compensatory damages to which entitled the holder of copyright and the profits made by the person who violated that right. 160 Indeed, it is by reading the sections 15, 18 and 22, as contained in paragraph 1118 of the device trial that one can understand the problems surrounding the first
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question concerning the application of the Article 35 LDA. 161 In paragraphs 917 to 933 that form the sub-section 15.1 of the trial, the judge deals with accountability. 162 He noted, first, that Mr. Robinson is based on paragraph 34 (1) LDA to request an accounting of the appellants. This paragraph provides as follows:
34 (1) Where copyright in a work has been infringed, the owner of copyright is, subject to other provisions of this Act, entitled to all remedies by way of injunction, damages, account or otherwise provided by law or may grant for infringement of a right. [Emphasis added] 163 Then, after describing the divergent positions of the parties on this issue, the judge rejected the request for accountability for the following reasons:
[929] The process of accountability is a slow process because it opens the door to a second trial, as a result of deposit accounts by the defendants, their challenge is in the same way as a challenge to a common share.
[930] The parties have fought bitterly for almost fourteen years. Considering the 4.1 and 4.2 CCP on proportionality, it is not in the interest of justice or of the parties to return to a discussion, the procedure under Articles 532 and following CCP is heavy.
[931] Moreover, the Court finds that the claim of the plaintiff's lawyers for their legal fees to date is $ 2,433,836 and it would be against inappropriate to allow such accountability leading to perpetuate litigation, costs, emotions and passions.
[932] Of course, the Court may order an accounting that would do the trick of the defendants. Such a decision would result in unnecessary additional delays. The defendants chose not to call a witness on this issue. Maybe they were afraid of having to reveal all in consideration of all income? They preferred to be satisfied with the declared income and add a challenge to the portion of income which will be discussed further. 164 Subsequently, in the sub-section 18.1 of the trial, the judge addresses the economic damages under the ADA. He then makes the distinction referred to in subsection 35 (1) LDA, focusing on compensatory damages related to breach of copyright and examining the question of profits. 165 In regard to compensatory damages, the judge sets mainly based on the gross income of Mr. Izard and Mr. Caillon or $ 547 739 and $ 56 750, for a total of $ 604,489 ( the judge erroneously mentions a total of $ 607,489). Note that there is no appeal on this subject except by Mr Weinberg
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no appeal on this subject, except by Mr. Weinberg. 166 As for profits, this is what the judge wrote:
[1006] The plaintiffs claim the defendants of all profits arising from the release of the series Sucro and sale of all products derived from it. However, they fail to fix the amount and content themselves to claim the whole.
[...]
[1010] According to the plaintiff, it turns documents to him have not been provided but calculation of revenues to $ 16,656,715. No production costs, other than documents that filed to establish these costs 9 $ 912.233.
out that all relevant he managed to make a evidence has been made on the applicant himself has
[1011] The respondents submit that the Tribunal must avoid duplication or overlap between the heads of damage, 167 Then the judge makes a calculation of profits, noting in paragraph 1014 that Mr. Robinson establishes the total amount of revenue to $ 16,656,715, of which 8308 $ 292.03 are contested by the appellants. It states the following:
[1015] The defendants do not dispute the amount of expenditure laid down $ 9,912,233, but argue that if we subtract the income in dispute, there is no profit but a loss of 2111 $ 549.13. 168 Subsequently, it allows certain deductions claimed by the appellants, which led him to establish the following summary table:
169 Finally, after being asked what percentage of profits should be attributed to Mr. Robinson, the judge responds as follows:
[1030] The applicant was a partner with Pathonic 50% and 50% with SDA. The Tribunal will, therefore, that the portion of profits to which he is entitled is 50%, or $ 1,716,804. 170 Then, the judge drew the following overall conclusions:
[1108] The Tribunal finds that the defendants Charest, Weinberg, Cinar, Izard, France Animation, Davin, Ravensburger and RTV have plagiarized the work of the applicant and, therefore, provides applicants with the following amounts:
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1 - ECONOMIC DAMAGE UNDER THE LDA
a)
COPYRIGHT
$ 607 489
b)
PORTION OF THE PROFITS:
$ 1,716,804
$ 2,324,293
2 - PSYCHOLOGICAL INJURY
$ 400 000
$ 400 000
3 - EXEMPLARY DAMAGES
$ 1,000,000
$ 1,000,000
4 - ATTORNEY FEES
$ 1.5 million + Tx
$ 1.5 million + Tx
TOTAL:
5224293
171 Finally, the judge pronounced sentence as follows:
[1118] CINAR order the defendants, Ronald A. Weinberg, both personally and what art unique qualities of executor of the estate of the late Micheline Charest, Christian Davin, France Animation, Christophe Izard, Ravensburger Film + TV GmbH and RTV Family Entertainment AG, jointly and severally to pay the plaintiffs the sum of $ 2,724,283 with interest at the legal rate, plus the additional indemnity from December 5, 1995. 172 We note immediately that in this last paragraph, the distinction made by the judge under section 35 LDA no longer, he treats, in fact, without distinction of compensatory damages and reimbursement of profits made by Offenders. Moreover, the reading of Article 1108, we see that also includes in its conclusion the amount of psychological damage it deals, however, separately in Section 17 of its decision.
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psychological damage it deals, however, separately in Section 17 of its decision. This last point is the subject of a particular ground of appeal that goes beyond the question of application of Article 35 and LDA will be addressed by the Court separately. 173 Before addressing the appellants' grounds of appeal on the application of Article 35 LDA, consider a request by the respondents that the judge erred by allocating only 50% of profits made by the appellants:
The respondents wish to report to this Honourable Court that the appellants submit on appeal that the payment of profits is not intended to compensate for the loss of the respondents or punish the appellants, but to prevent the unjust enrichment of counterfeiters. Building on this principle, they agree that confirming the infringement, this Honourable Court should not legally allow callers to keep the profits from counterfeiting. Therefore, even the admission of the appellants, the Court of Appeal was asked to modify the trial decision and ordered the appellants to the respondents to return the entire profits (not just 50%) or 3433 $ 608 for a total of $ 4,041,097. 174 The respondents did not cross-appeal on this issue and, in the absence of such an appeal, their request is rejected. Now consider the means of the appellants concerning the application of Article 35 LDA. The 11.1-compensatory damages 175 What about the first call from Mr. Weinberg regarding compensatory damages? This is in paragraphs 98 to 102 of its submission that it is exposed this way:
The judge grants an amount of $ 607,489 as compensatory damages of copyright, recognizing the difficulty of quantifying and making their quantification with the premise as an infringement of the characters as drawings of Robinson, then become inaccurate premise in the absence of violation of copyright. Weinberg and Charest agreed that damages equivalent to the damages provided for in Article 35 (1) LDA are eligible under sections 1611 and 1613 of the Civil Code. However, in the absence of violation of copyright, these damages should be limited to the portion of the elements of curiosity that this Court holds still protected by an implied obligation of confidentiality, or one that Robinson would not have allowed the disclosure. This calculation corresponds to the compensatory gain by Robinson missed the equivalent of money he would have received by creating these items for the benefit of France Animation and Izard. Without such evidence, Weinberg and Charest submit that the amount of damages should not exceed 10% of the amount paid, the same percentage by Cinar in Sucro.
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176 As the Court has already determined that a violation of copyright, this plea is rejected, subject to correct the calculation error committed by the judge ($ 604,489 instead of $ 607,489). 11.2-Profits 177 The issue of disgorgement is the subject of several grounds of appeal. 178 First, the appellants argue that the judge erred in condemning the persons mentioned in paragraph 1118 of the trial to a refund of a proportion of profits, and this, irrespective of the payment of compensatory damages for violation of copyright and payment of damages for psychological harm. 179 They note, correctly, that only companies Cinar France Animation, Ravensburger and RTV to make a profit from the exploitation of the work Sucro Robinson. Accordingly, the convictions against Mr. Weinberg, Davin and Izard should be struck, as they have not been participating as such in the profits. 180 The Court agrees with this ground of appeal. The evidence did not establish that MM. Weinberg, Davin and Izard participated in profit sharing. It is therefore necessary to intervene in this regard to clarify that the conviction for the repayment of profits can not be applied to them. This conclusion is all the more concerning Mr. Davin for whom the Court found a lack of accountability. 181 The appellants also argue that the judge erred in imposing a sentence solidarity regarding repayment of profits. Based on the text of paragraph 35 (1) LDA, they argue that a counterfeiter can not be sentenced beyond the profits he made himself. 182 The Court agrees with this interpretation. 183 The end of paragraph 35 (1) LDA already quoted says, in a clear, the court may order the infringer to pay a proportion of profits it has made and not condemn him to pay back the profits made by the all the counterfeiters. 184 This provision, however, raises a real problem in this case because the judge refused the request for an accounting of Mr. Robinson. In doing so, it prevented the presentation of detailed evidence to determine accurately the proportion of profits respectively Cinar France Animation, Ravensburger and RTV. Cinar 185 proposes to solve this problem as follows:
While the Trial Judge Quantified the total revenue from the Series as $ 13,345,841.18 Being ET Could and Should Have, Did not order, allocate revenue Such Between France Animation, Cinar and Ravensburger in Accordance with the terms of the Co-production Agreement. This Could and Should Have Been done based on the Information Contained in the record. To Avoid the Necessity of a lengthy mathematical calculation Before this Court, France Animation, Cinar and Ravensburger Agree and stipulata That WAS the total revenue in the Earned proportion of 60%
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stipulata That WAS the total revenue in the Earned proportion of 60% for France Animation, 15% and 25% for Ravensburger for Cinar. Cinar, with the agreement of France Animation and Ravensburger, submits That This Is consist in substance with the Co-production Agreement.
(...)
Based on the Information Used by the Trial Judge, below Is A mathematical calculation of the profits of EACH of France Animation, Ravensburger and Cinar using, for illustration Purposes, the total revenues of $ 13,345,841.18 and total expense of $ 9,912,233 Determined by the Trial Judge and Applying the allocation of revenue Referred to in paragraph 18 Above:
TOTAL
FRANCE ANIMATION (60%)
Back
$ 13,345,841
$ 8,007,505
Expenses
$ $ 9,912,233
6,063,120
Profits
$ 3,433,608
$ 1,944,385
50% of the profits
$ 1,716,804
$ 972.193
RAVENSBURGER (15%)
CINAR (25%)
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Back Expenses
$ 2,001,876 $ 1,515,780
$ 3,336,460 $ 2,333,333
Profits
$ 486.096
$ 1,003,127
50% of the profits
$ 243.048
$ 501.564
The Above Will exchange calculations, moreover, to the Extent That this Court accepts Appellants' Submissions with respect to revenue or Expense items. In Particular, if this Court accepts the $ 1,117,252 That of profits from the music of Sucro Should not Have Been Included in the back of the Defendants, then the total profits are $ 2,316,356,18, To Be Divided Between France Animation, Cinar Ravensburger and in Their respective shares. Moreover, if this Court accepts aussi Cinar's Submissions in Section B. below, That the $ 1,111,201 owed by Cinar to Jaffa Road Was a Direct Expense of distribution and Should Have Been deducted from the revenue, the total profits are $ 1,205,255.18, to Be Divided Between France Animation, Cinar and Ravensburger. Again, EACH of the Appellants Can Only Be Condemned to pay the Earned profits and it has only portion of These Should Be profits payable to Respondent. [Emphasis added] 186 This suggestion is reasonable given the circumstances of the case. Indeed, when a judge orders a refund of profits pursuant to subsection 35 (1) LDA, there is normally 41 accountability. As the author points out David Vaver, if
accountability entails problems of proof too expensive and too complex, it is usually best to seek more damages for which the law appears less demanding about the quality and probative evidence.
187 Here, the judge decided to order a return of profits based on the documentary evidence filed. However, he did not explain why he passed sentence solidarity, thus going against the text of paragraph 35 (1) LDA. 188 The proposal by Cinar is to enable the implementation of this legislation, all based on documentary evidence submitted at trial. The respondents have not shown how this proposal would be unfounded and unreasonable. In the circumstances, it is necessary to consider this proposal and is not attached to the conviction for the repayment of profits. 189 It now remains to determine the amount of those profits. The appellants argue that it was miscalculated by the judge. Specifically, they state that the judge erred in refusing to admit the three following deductions in the calculation of profits:
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profits of $ 1,117,252 related to music rights; an investment of $ 684 000 for Ravensburger; an expenditure of $ 1,111,201 of Cinar for Jaffa Road. 190 Before addressing these three issues, we note that the respondents are opposed to the three grounds of appeal arguing, in general, that the appellants have made no particularized evidence about this. It should be rejected that argument. This would amount to apply a rule "two weights, two measures" against parties. 191 Indeed, the respondents submitted documentary evidence to establish the main income from the production Sucro Robinson. It would be unfair to require the appellants to rely on other evidence to establish the expenditure to obtain this income. Moreover, it appears that the judge's ruling was itself based on documentary evidence to draw conclusions concerning deductions claimed by the appellants. 192 But it should be allowed the respondents' motion which seeks the dismissal of a document filed by the appellants in the case April 13, 2011. This document entitled "Calculations relating to deductions claimed by the Appellants" contains 15 pages accompanied by three appendices. As reported by the respondents, this document was not presented at trial and, furthermore, it has not been a request for new evidence. In the circumstances, the Court will ignore. 193 The judge addresses the issue of music rights in the following terms:
[1016] The respondents use a fallacy when subtract music rights on the grounds that the applicant is not alleging plagiarism about the music rights. Since they do not dispute the expenses include costs related to music, logic dictates that we keep the incomes consequential, especially as incomes music can not be separated from all of the work attacked .
[1017] The $ 1450 $ 092.31 must remain in the column "Income". 194 We note immediately that the appellants do not seek to derive profit all revenues related to music rights, but only the profits from those revenues, or $ 1,117,252. 195 Moreover, the music and lyrics by Robinson Sucro have nothing in common with those of Robinson curiosity. In addition, the musical work of Robinson Sucro contains no substantial recovery of the work Robinson Curiosity, words or music. In these circumstances, the musical work of Robinson Sucro is original and there is, in this respect, no violation of the copyright of the respondents. This means that the appellants made a profit on a musical of their own. 196 The trial judge therefore erred in concluding the inseparability of the musical work and the literary work of Robinson Sucro. He should have asked what profits would have made the appellants is that their musical work with or without a work not
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would have made the appellants is that their musical work with or without a work not counterfeit. It is common in fact that the author is entitled to delivery of the portion of the profits of the infringer that a causal relationship to his work. 197 The Monsanto Canada inc. c. Schmeiser 42 is relevant to this question:
100 The Patent Act provides for two types of compensation: damages and surrender profits. The damages are the loss of the inventor, which may include either the loss of profits that the patentee has suffered in sales or loss of royalties. By cons, an accounting of profits is calculated based on the profits made by the infringer rather than the amount lost by the inventor. In this case, there is no reason to award damages, since Monsanto has decided to seek an account of profits.
101 It is well established that the inventor is only entitled to remission of the portion of the profits made by the infringer, who has a causal relationship to the invention: Lubrizol Corp.. c. Imperial Oil Ltd., [1997] 2 FC 3 (CA), Celanese International Corporation. c. BP Chemicals Ltd. [1999] RPC 203 (Pat. Ct), para. 37. This is consistent with the general rule that applies in respect of compensation not punitive, "it is essential that the losses are only those which, on a common sense of causation, were caused by the breach" ( Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 SCR 534, p. 556, McLachlin J. (as he then was), cited with approval, on behalf of the Court, by Justice Binnie in the Cadbury Schweppes Inc.. v. FBI Foods Ltd., [1999] 1 SCR 142, para. 93).
102 The preferred method of calculating the profits to be delivered is called the value-based method or method "differential profit", which consists in calculating the profits according to the value that the patent was allowed to acquire goods of the defendant: N. Siebrasse, "A Remedial Benefit-Based Approach to the Innocent-User Problem in the Patenting of Higher Life Forms" (2004), 20 CIPR 79. You have to compare the profit that the invention has enabled the defendant to carry him to that would have made the best noninfringing (ie Lasnier Collette (1886), 13 SCR 563, p. 576, also cited with approval in stopping Colonial Fastener Co. v. Lightning Fastener Co., [1937] SCR 36 ).
103 The problem is that, by ordering the return of profits, the trial judge did not indicate any causal link between the invention and the profits, he said, the appellants from the canola Roundup Ready. Based on the facts found, appellants made no profits due to invention.
104 They made exactly the same profits as if they had planted and harvested ordinary canola. They sold as animal feed, the Roundup Ready canola grown in 1998 and therefore did not get a better price from the fact that it was Roundup Ready canola. In agriculture, the
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p y g , appellants have also not benefited from the strength of canola to the herbicide, since no conclusion that they sprayed with Roundup herbicide to reduce the presence of weeds. Profits appeals from only the characteristics of the crop that are not attributable to the invention.
105 According to the evidence in this case, the appellants have not benefited from the invention and Monsanto is entitled to nothing in terms of its rebate.
[Emphasis added] 198 Although this case involved a patent issue, the principles that were laid deserve to be observed in the case of offenses relating to copyright, given the similarity of the relevant legislation in both laws. In sum, there is no causal link here between the profits made by the appellants and the respondents' musical work. 199 In the circumstances, the Court is of the opinion that the trial judge should subtract the amount of $ 1,117,816 in the calculation of profits
43.
200 As for the investment of $ 684 000 for Ravensburger, the judge dealt with as follows:
18.1.3.2 - Redemption of territories
[1018] This element 864 totaling $ 066.72 will be treated together with the investment of $ 684 000 Ravensburger. The latter amount is related to distribution rights in accordance with Article 2d) and Annex F of the contract Exhibit P-93-FA-1A-1 and, therefore, that income must remain in the calculation of income. This is not investment as the defendants claim. 201 For its part, France Animation argues that the judge erred when she makes the following:
Second, the judge does not subtract the amount of income Sucro investing $ 684 000 made by Ravensburger, a co-producer (Judgement appealed from, by. 1018-9). This is illogical. Indeed, the judge shall refund the profits on a global basis for the production of Sucro. As a result, are exchanged between co-producers obviously can not be considered as income. Indeed, the amount paid by Ravensburger in France Animation is an expense for Ravensburger and only one to costs for France Animation. Thus, when we shall calculate profits on a global basis, as did the judge, these exchanges of money between co-producers can not be taken into account. The amount of $ 684 000 is not income and should have been subtracted from profits. 202 hi l h ld b d Si h l l i f i h b d
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202 This proposal should be accepted. Since the calculation of income has been made globally, we must deduct all payments made by the appellants (one calls these expenses or investments) for income, to finally arrive at net income or profits. 203 It is therefore necessary to deduct $ 684 000 in calculating profits. 204 Finally, also in regard to profits, the judge deals with the expenditure of Cinar for Jaffa Road as follows:
[1022] On Jaffa Road, the defendants make a mistake. First, they were right, the deduction should read $ 1,111,158 instead of $ 1,853,333. This amount must remain in income as it is a recognition of an income guarantee. The Tribunal has no evidence of the defendants on a duplication of income. 205 The solution for the investment of $ 684 000 for Ravensburger must also prevail here. 206 In fact, 1,853,333 in Robinson. In distribution under a contract of sale dated January 31, 1994, Cinar sold for $ Jaffa Road XLV Limited Partnership its interest in the work Sucro addition, 29 November 1994, Jaffa Road in Cinar sold for $ 1,111,201 rights in Canada and the United States.
207 In the circumstances it is appropriate to include $ 1,853,333 in income of Cinar, but it must be inferred $ 1,111,201 due to Jaffa Road. 208 Finally, it should be deducted from profits calculated by the judge ($ 3,433,608) the sum of $ 2,912,453 ($ 1,117,252 + $ 684,000 + $ 1,111,201), which gives $ 521 155 in profits. By taking 50% of these profits, percentage retained by the judge, we arrive at the amount of $ 260 577 for which payment is to be shared between France Animation (60%), Ravensburger (15%) and Cinar (25%). France Animation and must repay $ 156,346 in profits, Ravensburger, $ 39 087, and Cinar, $ 65 144. 12 - The psychological damage 209 The appellants propose two other grounds of appeal relating to paragraph 1118 of the trial. 210 They argue first that the judge erred in awarding compensation to Mr. Robinson for $ 400 000 as a moral or psychological harm. Specifically, they claim that the judge should have applied the rules here in the trilogy Andrews v. Grand Toy Alberta Ltd.. 44, Thornton v. School District No. 57 (Prince George)
Arnold v. Teno non-monetary.
46,
and which set a ceiling for compensation for damage to
45,
211 The judge concluded that Mr. Robinson has suffered psychological harm for which he fixed the quantum of damages as follows:
[985] The applicant relies on Case Hill [1995] 2 SCR 1130 the Supreme Court has granted a sum of $ 300 000 to Assistant Attorney General
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g $ y for his reputation and defamation by unfounded allegations of abuse of confidence crime.
[...]
[991] The respondents submit a parallel quantum equated with the death of a child, which is not our cause. In this case, we are facing a rape if one considers the very personal relationship between the character of Curiosity and the applicant, its relationship paternity is directly inspired by his life, his family and relatives and the intimacy with the main character in that it was based on his own person, both in its character than her physical attributes and lineage.
[992] The Tribunal also finds that more than fourteen years have passed since the Hill case and that it is necessary to update the amount of $ 300 000.
[993] The Tribunal finds it reasonable to grant a sum of $ 400 000 as moral damages in this case. 212 For these references to the Hill case, the judge suggested that an attack on his reputation as Mr. Robinson has suffered. But this contradicts what he wrote at paragraph 957:
[957] There is no evidence as to what the honor and reputation of the plaintiff were tainted by the changes at work. 213 It should be noted here that in section 16 of the trial, the judge rejected the claim of $ 250 000 made by Mr. Robinson for violation of moral rights referred to in paragraph 14.1 (1) LDA:
14.1 (1) The author of a work entitled, subject to section 28.2, the integrity of the work and, in respect of any act mentioned in section 3, the right light uses reasonable to claim, even under a pseudonym, creation, and the right to anonymity. 214 This decision was not appealed by the respondents. 215 We note, moreover, that the report of the psychiatrist Louis Ct, quoted in paragraph 965 contained in section 17 of the trial, reported a "state of mental distress very important" and "symptoms of anorexia, weight loss , vomiting, physiological reaction, bleaching of his beard and sleep disturbances with nightmares persistent [...]". Concluding his report, he concluded with a diagnosis of "adjustment disorder with anxiety-depressive mood." 216 In short, there is no reputation here of Mr. Robinson, because the judge found
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no such evidence. There is not, either, affect moral rights referred to in subsection 14.1 (1) LDA, as the judge denied this claim and that his decision was not appealed. Finally, the evidence did not establish that the psychological damage suffered by Mr. Robinson has caused a financial loss. In these circumstances, the injury suffered by Mr. Robinson is an injury to non-monetary and shall be compensated according to the teaching of the Supreme Court in the trilogy mentioned above. 217 According to the ruling Godin v. Quintal 47 is the date of assignment, not
the date of the decision is to turn your ceiling to fix the result of the trilogy. But in 1996, this limit was set at $ 242,700 48. The maximum award is usually given to those most affected as it is people who have suffered serious injuries resulting in significant and permanent effects that take away all the little joys of life.
218 As noted by the judge in the decision Kasirer Stations of the Valley of StSauveur inc. c. MA 49, the Supreme Court of Canada suggested that a
balanced approach, that is to say making a fair share from the conceptual approach, the functional approach and the personal approach is adopted to determine the quantum of prejudice to non-monetary, and this, in the Quebec (Public Curator) v. National Union of Hospital StFerdinand 50.
219 In applying this principle to this case and holding that suffered by Mr. Robinson was not the most serious is that it physical attack and can still enjoy life despite the quality diminished, the Court held that an indemnity equal to 50% of trilogy, is $ 121 350, is reasonable in the circumstances. the psychological harm has not suffered a of it was greatly the limit set by the
220 It should be emphasized that at the end of his report dated October 20, 1997, Dr. Ct recommends that Mr. Robinson "to undertake a therapy for this difficult time in order to protect it against possible risks mental collapse and help it regain its normal potential. " 221 Then, in a note dated June 23, 2005, he wrote:
Mr. Robinson was followed by supportive psychotherapy in our private office for a few months after the assessment of 20 October 1997. He did not re-consulted the outpatient clinic of Psychiatry, St-Luc Hospital since then. 222 Furthermore, in testimony delivered on 27 October 2008, he said he met Mr. Robinson in consultation four times during the two years following their initial meeting in October 1997. He said he did not consider necessary a closer follow-up, as Mr. Robinson was "able to continue his personal efforts without deterioration." 223 In his testimony, Dr. Ct said, moreover, that in general the adjustment disorder like that suffered by Mr. Robinson lasts 2 to 6 years. 224 These are factors which, while not exhaustive, were considered by the Court to draw its conclusion as to the quantum of compensation payable for psychological
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injury. 225 It is therefore necessary to cut 400 $ 0000 $ 121 350 in compensation for psychological harm and to provide interest and additional indemnity from the assignment. 13 - The interest and additional indemnity 226 The second ground of appeal relating to paragraph 1118 specifically addresses the timing of interest and provide additional compensation. The judge held December 5, 1995, the date of the house. It thus held ultra small because the respondents stated in their declaration and re-remanded the September 5, 2008, requesting a conviction bearing interest and additional indemnity for the assignment. 227 So from the latter date is July 16, 1996, with interest and additional indemnity relating to compensatory damages, including for psychological injury, should be calculated. By 228 against, interest and additional indemnity relating to reimbursement of profits can be calculated from that date, since the profits were not all made at the same time, when the summons. Given the difficulty of fixing the exact date or dates that should be used for this purpose, it is reasonable to choose a date to approximately half of the period when the work was carried Sucro Robinson, is the 1 July 2001. 14 - Punitive damages 229 Recall that the trial judge sentenced Cinar, M. Weinberg, personally and as executor of the estate of the late Micheline Charest, Mr. Davin, France Animation and Mr. Izard severally to pay the respondents $ 1,000,000 in punitive damages with interest at the legal rate from the trial. 230 The appellants propose several ways with respect to punitive damages. First they challenged the right to obtain such damages in Quebec in the event of violation of the LDA. If it is possible to attribute such punitive damages, they attack the quantum awarded by the trial judge, they are clearly exaggerated. Finally, they argue that only those who had intentional conduct can be ordered to pay punitive damages. If necessary, they argue that it is wrong to convict solidarity. 231 Article 1621 CCQ deals with punitive damages:
1621. Where the law provides for the award of punitive damages, they may not exceed, in value, which is sufficient to fulfill their preventive.
Punitive damages are assessed taking into account all relevant circumstances including the seriousness of the misconduct of the debtor's financial situation or the extent of the compensation to which he is already liable to the creditor and, if appropriate, that support the payment of the damages is wholly or partly assumed by a third party.
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232 This provision requires that the award of punitive damages is provided by law. Here, the LDA does not contain, at a time when the respondents commenced their
The question is, however, since theoretically, the violation was ongoing, the respondents could change their procedures, in 1997, calling for punitive damages. In any case, the Court decided, in a recent decision, the reasons which have been written by Judge Bich, the intentional infringement of copyright was an infringement of the owner to the enjoyment of one of property and constituted a violation of Articles 6 and 49 of the Charter of Rights and Freedoms:
action, such a provision. It appeared in 1997
51.
[46] What about now punitive damages?
[47] The award of punitive damages is not intended as such by the Law on Copyright, although section 38.1, para. 7, makes reference to talking about the right to claim that may exist "where appropriate". The damage of this type are commonly recognized and awarded, and this, according to the law of the province in which the action is brought . In Quebec, some decisions of this court recognized the possibility of awarding punitive damages in cases of intentional violation of copyright. Although the Court did not specify the basis for such a sentence, one can see application of Articles 1621 CCQ and Articles 6 and 49 of the Charter of Rights and Freedoms, the intentional infringement of copyright is an infringement of the holder to peaceful enjoyment of one of its property . This is implicit, conversely, stopping Greenberg Stores Ltd. v. Import-Export Ren Derhy (Canada) inc. [2004] QJ No. 2705, which Rothman JA for the court case in these words to the sentence imposed punitive damages at trial: 52 [...]
[Emphasis added] 233 As noted by the parties, the solidarity in punitive damages is the subject of
delivered on 1 October 2008, Justice Pelletier expressed the view that solidarity is not appropriate for punitive damages. He said the articles 1480 and 1526 CCQ limit solidarity liability. However, punitive damages do not exercise any remedial function. The objectives of retribution, deterrence and denunciation attached to punitive damages would be inconsistent with the idea that a person supports the fine imposed on another. Furthermore, Article 1525 CCQ does not solidarity unless it is expressly stipulated by the parties or imposed by law, which is not the case for punitive damages. Finally, Justice Pelletier points out that Article 1621 CCQ provides that the determination of the level of punitive damages is a process of individual assessment.
controversy in Quebec. In Solomon v. stop Quebec (Attorney General) 234 In the case Genex Communications inc. c. Quebec Association of the record
53,
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234 In the case Genex Communications inc. c. Quebec Association of the record industry of the show and
54
of the video, released November 20, 2009, Judge
Dalphond expresses the opposite view: solidarity is possible in punitive damages against the co-authors of an intentional interference. It relies on two cases in which the Supreme Court handed down sentences solidarity in punitive damages. This is Quebec (Public Curator) v. National Union of employees of the hospital of St. Ferdinand and Gauthier v. 55 Beaumont 56.
235 The proposed solution in stopping Solomon must be retained for two reasons. First, in terms of legal policy, it is preferable that the Court applies its previous, except in cases of obvious error. In this perspective, stopping Solomon, which predated the case Genex, must prevail. Second, the analysis made by Justice Pelletier in Solomon is based on Article 1621 CCQ, a provision was not applicable when the Supreme Court ruled the affairs Quebec (Public Curator) v. National Union of employees of the hospital of St. Ferdinand and Gauthier v. Beaumont on which is based Genex. Certainly, we can not share the view expressed in Solomon, but we can not say that the result of an obvious error. The individualization of punitive damages recommended in Solomon, according to the state of the financial situation of each offender, has the merit to avoid the compensation level, up or down, depending on the assets of the richest and the one who is not. It also has the advantage to "punish" each offender for acts he has performed in sentencing him to a specified amount to measure for him. Consequently, the award of punitive damages will not be supportive. 236 Before discussing the quantum of punitive damages awarded, remember the basic rules. They were set out and explained by the Supreme Court in Whiten v. Pilot Insurance Co. 57. That case, of some interest, but limited in scope in
Quebec law. It does not replace the requirements of Article 1621 CCQ, but it helps to specify the tags of Evaluation 58. Punitive damages are the exception. They are justified in the case of a malicious and reprehensible conduct, which derogates from the usual standards of conduct. They are awarded if wrongdoing go unpunished or where other sanctions would fail to achieve the objectives of retribution, deterrence and denunciation. In this regard, the Supreme Court said that punitive damages are not intended to compensate the plaintiff but to punish the defendant, to deter repeat and express disapproval of the whole community 59 .
237 As regards the quantum of punitive damages, the Supreme Court advocated a rule of proportionality. This means that punitive damages must be proportionate to factors such as the reprehensibility of the defendant's conduct, the injury to the plaintiff, his vulnerability, profits derived by the defendant and other damages to which it was condemned. 238 What about here? 239 The judge deals with punitive damages in paragraphs 1036 to 1073 of its decision. The analysis shows that the compensation was based on a combination of two factors: the sympathy given to Mr. Robinson, a vulnerable person who has fought hard against the experienced people in the business and the stigma aroused by the conduct
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of persons who have obtained, without the right, grants and royalties from a considerable amount. 240 With great respect, the judge made errors that led him to pay a sum considerably exaggerated in terms of punitive damages. 241 The appellants are correct that most of the facts that the judge considers in sentencing them to punitive damages are not related to infringement of copyright for the respondents or their conduct before the Court. Thus, the steps taken by certain callers to obtain grants or royalties to which they were not entitled can not be the basis for the award of such damages. Reading the ruling shows that these nonrelevant played a key role in awarding punitive damages. 242 In addition, the trial judge does not consider the exceptional nature of this type of damage or their goal. In this perspective, it should have considered the height of other amounts awarded to the respondents before determining the amount of punitive damages that he has failed to do. 243 However, it remains certain that appellants violated the copyright of the respondents, particularly that of Mr. Robinson, in a deliberate and intentional and they have also adopted a deceptive conduct in the trial including the refusal to recognize the Obviously, that is to say, they had access to the work of Mr. Robinson. These facts support the award of punitive damages. 244 Let us remember here that Cinar, Mr. Weinberg and Ms. Charest used without the right of the documents submitted by the respondents as part of their mandate that they had entrusted to promote Robinson curiosity, to usurp their right to author, and have continued to deny this fact throughout the trial. Mr. Izard, for its part, had access to the work of the respondents, he used to create Sucro Robinson and he, too, denied this throughout the trial. 245 As for Mr. Davin, as noted above, the evidence did not establish that he was at fault, much less an intentional and deliberate violation of the rights of respondents. It is the same for France Animation. Violation of the rights of the respondents by Mr. Izard, who has a status of freelance in France Animation, can not be attributed to the latter in that the evidence did not establish his knowledge of the violation or some of its complicity part. 246 How much money would fulfill the objectives of the award of punitive damages and respect the proportionality rule advocated by the Supreme Court? 247 According to Jean-Louis Baudouin and Patrice Deslauriers, the text of Article 1621 CCQ establishes a general principle of moderation, since the compensation awarded in this area must take into account the gravity of the offense, the extent of repair and the assets of the debtor
60.
248 The analysis of the cases cited by the parties with respect to punitive damages indicates that the amounts awarded in this area are generally moderate. 249 For example, in copyright law, punitive damages awarded range from $ 5 000 to $
In other matters, punitive damages are generally $ 5 000 to $ 250 000

200 000, the highest amounts being reserved for cases of repeat offenders
61.
62.
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250 The Canadian judicial tradition so strictly applied the rule of proportionality. The granting of very substantial and it is exceptional accompanies cases of extreme misconduct 63. 251 This case is not one of those exceptional cases as it was in the business above
cited by the respondents in their memory. In both of these cases, a bank and an insurance company tried to cheat their clients make informed choices. In these situations, the need for denunciation is particularly pressing, if only to know the people involved that such conduct is unacceptable and will be strongly denounced.
and Whiten v. Markarian CIBC World Markets. 252 In Whiten, the insurer refused to indemnify the insured on the grounds that he participated in a fire. However, the investigator and the expert with whom he had dealt both stated that there was no evidence whatsoever of arson. The family whose house had been burned was in a very precarious financial situation. She had to risk his last asset to engage in a long trial and totally unnecessary given the lack of credibility of the allegation of arson. The jury found that the insurer had engaged in conduct egregious and awarded punitive damages of one million dollars to launch a strong message of retribution, deterrence and denunciation. The Supreme Court recognized that the amount was high, but declined to intervene because of the very particular facts of the case. In Markarian 253, CIBC knew that his clients, the elderly and unwary in market, were victims of a fraud on the part of one of his advisors. CIBC refused to accept responsibility, it maintained an untenable position and forced the applicants to stand trial for four months. Moreover, this conduct was not isolated, but it was repeated on several other victims. These facts have led to the award of punitive damages of one million dollars.
64
the Supreme Court upheld an award of punitive damages and $ 800 000 for compensatory damages of $ 500 000 for moral damages due to the reputation of the Hill lawyer. Remember that the behavior of the Church of Scientology of Toronto in the publication injurious false about Mr. Hill was full of malice. She had taken the necessary steps for its publication, carefully planned and widely disseminated so that it is very damaging. The claim against the lawyer Hill was devastating. He was accused of embezzlement and was accused of criminal conduct. In addition, the actions of the Church of Scientology from the publication, during the trial and after trial, constituted a continuing attempt to harm Hill by spreading a false statement that she knew.
254 In Hill v. Church of Scientology of Toronto 255 This case is distinguishable from recent cases. 256 First, there is here a marked difference regarding the wrongfulness of the conduct covered by the appellants' claim for punitive damages. Certainly, they were wrong to deny that they had access to the work of Mr. Robinson, but, despite this, they had a valid defense against the respondents. This was related to the scope of the work Robinson curiosity, to its original character, the recovery of a substantial part in Sucro Robinson and evidence of independent creation. In this
65,
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p p regard, recall that the two works include aspects such totally different in terms of music and scenarios. It is in light of certain graphics characters, their traits and their relationship has played everything. But these questions dictate an exercise of discretion based on elements of nuances, of degree and context. The fact that the respondents' defense was not accepted does not deprive it of its reasonableness. 257 Then, for the same reason, the need for denunciation is so pressing that in those cases where, because of the unacceptable conduct of the defendants, a lengthy trial was held pointless. Here was matter for trial, it is indisputable. If it was extended due to certain acts of the appellants note that the respondents were generously compensated in terms of legal fees and a significant portion of respondents' evidence was not relevant, including a relating to the issue of subsidies. 258 Finally, with respect to compensation, compensatory damages awarded to respondents and the disgorgement imposed on the appellants have largely contributed to the punishment and deterrence of them. All these factors affect the quantum of punitive damages. 259 Taking into account the particular facts of the case and the amount already paid, the appropriate amount to be paid for punitive damages is $ 100 000 for Cinar and $ 50 000 each to Mr. Weinberg, Ms. Charest and Mr. Izard. 260 Net income for the full year is just and equitable. In addition to the legal fees of $ 1.5 million, the respondents will receive compensatory damages of $ 725,839 (604,899 + $ 121,350), the disgorgement of $ 260,577, punitive damages of $ 250 000 overall and they can exploit Robinson curiosity. Without minimizing the fault of the appellants and the fact that they are appropriate without right a substantial part of the work of the respondents, the fact remains that they were unable to successfully market their project Curiosity Robinson even after the flow of a decade. On the other hand, the appellants, as it should, do not withdraw their crimes even if they have a large contribution. The total amount to which they are condemned ensure that they not only do not benefit from their work, but in addition, they must cost money. This is a good way to punish and deter them from again, while compensating properly the respondents. 15 - The legal fees 261 The issue of legal fees was treated as follows:
[1120] CINAR order the defendants, Ronald A. Weinberg, both personally and what art unique qualities of executor of the estate of the late Micheline Charest, Christian Davin, France Animation, Christophe Izard, Ravensburger Film + TV GmbH and RTV Family Entertainment AG. Jointly and severally, to pay the plaintiffs the sum of $ 1,500,000 plus GST and QST, as an attorney-client fee with interest at the legal rate of this trial. 262 Only Mr. Davin appealed on this issue through its notice of appeal. The Court has already concluded that the convictions against him should be excluded in the absence of liability on its part, it is not necessary to dwell further on this subject.
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263 As for Mr. Weinberg, it only addresses this issue in its brief, without having alleged in his notice of appeal:
These damages are awarded in accordance with Article 34 (2) LDA and not under the principles established by this Court in Viel c. Local real estate companies Ltd [2002] JQ no 1056. Outside the framework of these principles, Weinberg and Charest denied that such damages are permissible in civil law. 264 However, section 34 (2) LDA relied upon by the judge reads as follows:
34 (2) The costs of all parties to proceedings relating to infringement of copyright is at the absolute discretion of the court. 265 The judge considered the issue of legal fees in paragraphs 1074 to 1103. When a representation 2433 of $ 836.16, he studied seriously the conduct of the proceeding, concluding as follows:
[1103] The Tribunal, exercising its judicial discretion and at the lack of evidence to the contrary, gives applicants the sum of $ 1,500,000 plus GST and QST. 266 The trial judge properly exercised its discretion in this case and there is no need to speak to this issue. 267 Finally, it remains to decide on a request for legal fees for the respondents for appeals. They present a claim for $ 943.66 856 for fees, disbursements and taxes. 268 There were no callers from an abuse of the procedures on appeal that would warrant ordered to extrajudicial fees. The fate of the calls showed also that they were not unfounded. For these reasons, the claim for legal fees on appeal is denied. 269 In summary, the appeal of Mr. Davin is allowed and the respondents' action is dismissed against him. As for the other three calls, in addition to legal fees of $ 1.5 million, the respondents will receive compensatory damages of $ 725,839, reimbursement of profits of $ 260,577 and punitive damages of $ 250 000 overall. THEREFORE THE COURT: 270 granted the motion of the respondents, dated April 14, 2011, to dismiss a document submitted by the appellants; 271 DISCLAIMS consequently the document entitled "Calculations relating to deductions claimed by the appellants" filed by them April 13, 2011 and clarified the next day; 272 allowed the appeal by Christian Davin with costs (500-09-020034-096 file);
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272 allowed the appeal by Christian Davin, with costs (500 09 020034 096 file); 273 allowed in part the appeal of other callers, at no cost given the mixed fate of appeals (files 500-09-020014-098, 500-09-020033-098 and 500-09-020035-093; 274 REPLACE subsequent paragraphs 1114 and following of the trial decision by the following:
[1114] DENIES the plaintiffs' action against Christian Davin, with costs;
[1115] DECLARES that the work entitled The Adventures of Robinson Curiosity is a protected work and that the exclusive rights of the latter are violated by the defendants CINAR, Ronald A. Weinberg, both personally and as a liquidator of the estate of the late Micheline Charest, Christophe Izard, France Animation, Ravensburger Film + TV GmbH and RTV Family Entertainment AG;
[1116] ordered the defendants to:
cease to produce or reproduce the work entitled Robinson Sucro or a substantial portion thereof, in any material form, or use it in any way; cease to produce and traffic in any capacity whatsoever, the series Robinson Sucro or copy thereof, together with all products in this series; stop broadcasting Sucro Robinson;
[1117] the plaintiff MAKE Claude Robinson, owner of all infringing copies of the work Sucro Robinson, as well as all plates, negatives or any other instruments that were used or intended for use in the manufacture of copies counterfeit;
[1118] ordered the defendants to provide the applicant with Claude Robinson, under oath, within thirty (30) days of this Judgement, all copies of Robinson Sucro, original drawings, all tapes and other ORDERS applicants to destroy them in sixty (60) days of delivery;
[1119] condemns the defendants jointly and severally CINAR, Ronald A. Weinberg, both personally and as a liquidator of the estate of the late Micheline Charest, France Animation, Christophe Izard, Ravensburger Film + TV GmbH and RTV Family Entertainment AG, to pay the plaintiffs the sum of $ 725,839 with interest at the legal rate , plus the additional indemnity since July 16, 1996;
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[1120] CINAR condemns the defendant to pay the plaintiffs the sum of $ 65,144 with interest at the legal rate, plus the additional indemnity from 1 July 2001;
[1121] Animation France condemns the defendant to pay the plaintiffs the sum of $ 156,346 with interest at the legal rate, plus the additional indemnity from 1 July 2001;
[1122] condemns the defendants jointly and severally Ravensburger Film + TV GmbH and RTV Family Entertainment AG to pay the plaintiffs the sum of $ 39,087 with interest at the legal rate, plus the additional indemnity from 1 July 2001;
[1123] ORDERED Ronald A. Weinberg, both personally and as a liquidator of the estate of the late Micheline Charest, and Christophe Izard to pay all claimants a total of $ 50,000 (for a total of $ 150,000) in punitive damages with interest at Legal as of August 26, 2009;
[1124] CONDEMNS CINAR to pay the plaintiffs the sum of $ 100,000 in punitive damages with interest at the legal rate as of August 26, 2009;
[1125] condemns the defendants jointly and severally, CINAR, Ronald A. Weinberg, both personally and as a liquidator of the estate of the late Micheline Charest, France Animation, Christophe Izard, Ravensburger Film + TV GmbH and RTV Family Entertainment AG, to pay the plaintiffs the sum of $ 1,500,000 plus GST and QST, as an attorney-client fee with interest at the legal rate as of August 26, 2009;
[1126] condemns the defendants jointly and severally CINAR, Ronald A. Weinberg, both personally and as a liquidator of the estate of the late Micheline Charest, France Animation and Christophe Izard, to pay the plaintiffs the full amount of expertise, with interest at the legal rate as of August 26, 2009;
[1127] The whole, with costs limited to disbursements court except with respect to Christian Davin who is entitled to pay the costs. THIBAULT FRANCE JA Benoit Morin, JJ.A. Franois Doyon JA
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cp / e / ln / qlisl / qlmlt / qlana
RSC 1 (1985), c. C-42. Except where otherwise noted, references to the LDA will be made to the law as it existed July 16, 1996, when the proceedings were instituted.
2 RSC (1985), c. C-44.
March 2006 QCCA 886.
4 Productions Avanti Cin Vido inc. c. Favreau, [1999] RJQ 1939 (CA).
5 [2004] 1 SCR 339, 2004 SCC 13.
6 JE 99-352, SOQUIJ AZ-99021160, 1998-12-16 (CS), aff'd. JE 2003-297, SOQUIJ AZ-50159522, 2003-01-23 (CA).
7 JE 2000-925, SOQUIJ AZ-00021435, 2000-03-10 (CS).
August 2006 QCCS 1956.
9 (1990), 38 FTR 183 (FC), conf. by (1993), 164 NR 304 (FCA).
10 Normand Tamaro, Law on Copyright, 8th ed., Scarborough, Carswell, a division of Thomson Reuters Canada Limited, 2009, p. 73.
11 Productions Avanti Cin Vido inc. c. Favreau, supra note 4.
12 [1998] 2 FC 22, para. 21 (FCA).
13 If this is the presence of Friday in the work of Defoe.
14 N. Tamaro, supra note 10, p. 274.
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15 Let us recall that this is the text in force July 16, 1996, see note 1.
16 dutile inc. c. Association for the protection of motorists, [2000] 4 FC 195 (FCA).
17 N. Tamaro, supra note 10, p. 260.
18 expert in semiotics or semiology, is the science that studies signs and symbols, especially when compared with the message conveyed.
19 JE 2005-1088, SOQUIJ AZ-50315115, 2005-05-24 (CS), aff'd. QCCA 338 by 2007.
20 (1992), 120 AR 291 (Alta. CA).
21 JE 98-1641, SOQUIJ AZ-98021732, 1998-06-25 (CS).
22 Preston v. 20th Century Fox Canada Ltd., Supra note 9.
Thibault v. 23 GEOCAN imports inc., JE 2004-1127, SOQUIJ AZ-50223944, 2003-0606, para. 36 and 37 (CS).
24 See: Construction Denis Desjardins inc. c. Jeanson, [2010] RJQ 1600, 2010 QCCA 1287, para. 33, British Columbia Jockey Club v. Standen (cob Winbar Publications), [1985] 6 WWR 683, para. 8 (BCCA); Hager c. ECW Press Ltd. [1999] 2 FC 287, para. 18, c. Duff Quebec (Attorney General), 2005 QCCA 661, para. From 19 to 23.
25 Company General Facilities Michelin-Michelin & Cie v. National Union of Automobile, Aerospace, Transportation and General Workers Union of Canada (CAWCanada), [1997] 2 FC 306.
Masterpiece Inc. 26. c. Alavida Lifestyles Inc., 2011 SCC 27.
27 Lazy For example, in Robinson Curiosity and Dimanchemidi in Sucro Robinson. It should be noted also that in the first synopsis Sucro Robinson, the name was attributed to Dimanchemidi an iguana.
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28 Bank Holiday Friday being a day of rest and Wednesday, a day off for French students.
29 An elephant and a lady.
30 Judgement appealed from, para. 648, 649 and 660.
31 Duff v. Quebec (Attorney General), supra note 24.
32 c. Fillion Chiasson, [2007] RJQ 867, 2007 QCCA 570.
33 Christian Vincke, Peter A. Side and Victor Nabhan, copyright issues in education, Official Publisher, Quebec, 1974, p. 36 and 38.
34 John S. McKeown, Fox Canadian Law of Copyright and Industrial Designs, 4th ed. Toronto: Carswell - Thomson Reuters, 2003 24-16 and 24-17. The author refers to a passage in Mentmore Manufacturing Co. v. National Merchandise Manufacturing Co. (1978), 22 NR 161 (FCA).
C. 35 Longpr Thriault, [1979] AC 258, p. 262, see also Crispino c. General Accident Insurance Company, 2007 QCCA 1293.
36 The Agreement can be accessed via the following link: http://www.cnc.fr/Site/Template/A2.aspx?SELECTID=36&ID = 37 & textid = 197 & t = 1
37 Mr. Robinson speaks with a casual conversation with friends in common.
38 This Convention No. 794 between the National Centre for Cinematography (CNC) and FRANCE ANIMATION - SA, the contract entitled "Robinson Sucro" between Ravensburger Film + TV, France Animation and international and bilateral conventions CO-PRODUCTION between FRANCE ANIMATION, Ltd. and CINAR PRODUCTIONS INC. / Cinar Productions inc.
39 Supra, note 5.
40 Daniel Gervais and Elizabeth F. Judge, The Law of Intellectual Property, Cowansville, Les ditions Yvon Blais, 2006, p. 62.
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Cowansville, Les ditions Yvon Blais, 2006, p. 62.
41 David Vaver, Intellectual Property Law, 2nd ed. Toronto: Irwin Law, 2011, p. 649-655.
42 [2004] 1 SCR 902, 2004 SCC 34.
43 Note that this amount is slightly different from that specified in paragraph 33 of the memory of Cinar. In fact, May 11, 2011, following a request for clarification of the Court, counsel for Cinar was informed that a mistake has been made in the calculation of music rights. It is based on an estimate of production as of May 24, 1994 (Exhibit P-200, Tab 26) that Cinar comes to the amount of $ 1,117,816. This amount is determined based on the documentary evidence adduced at trial and there is no reason that would justify the Court not to consider in the circumstances.
44 [1978] 2 SCR 229.
45 [1978] 2 SCR 267.
46 [1978] 2 SCR 287.
47 [2002] RJQ 2925, para. 86 (CA).
48 Daniel Gardner, personal injury, 3rd ed., Cowansville, Yvon Blais, 2009, p. 383.
49 [2010] RJQ 1872, 2010 QCCA 1509, para. 83, (CA).
50 [1996] 3 SCR 211, para. 80.
51 This is section 38.1, para. 7, LDA.
52 Construction Denis Desjardins inc. c. Jeanson, supra note 24, para. 46 to 48.
53 [2008] RJQ 2127 (CA), 2008 QCCA 1832.
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54 [2009] RJQ 2743 (CA), 2009 QCCA 2201.
55 Supra, note 50.
56 [1998] 2 SCR 3.
57 [2002] 1 SCR 595, para. 52.
58 Jean-Louis Baudouin and Patrice Deslauriers, Liability, 7th ed., Cowansville, Yvon Blais, 2003, No. 380, p.401.
59 See also De Montigny c. Brossard (Succession), [2010] 3 SCR 64, 2010 SCC 51.
60 J.-L. Baudouin and P. Deslauriers, supra note 58, No. 380, p. 403.
61 Construction Denis Desjardins inc. c. Jeanson, supra note 24 ($ 5,000) 2703203 Manitoba Inc.. v. Parks, 2007 NSCA 36 ($ 40,000); Pantis c. Pagliaro, JE 97-1940, SOQUIJ AZ-97011808, 1997-10-02 (CA) ($ 10,000); Profekta International Inc.. v. Lee, 75 CPR (3d) 369 (FCA) ($ 10,000); Entrala Group International Inc.. c. MCUE Enterprises Corp. (Di Da Di Karaoke Company), 2010 FC 606 ($ 100,000) Transcontinental Media sencc Carignan, 2009 QCCS 2848 ($ 7500) Microsoft Corporation v. PC Village Co. Ltd.., 2009 FC 401 ($ 50,000); Louis Vuitton SA v. 486353 BC Ltd.., 2008 BCSC 799 ($ 200,000 for the director of the company) and ($ 100,000 for the other defendants) Transcontinental Media Inc. sencc Soumissionnez.com., 2008 QCCS 1772 ($ 2,500); Louis Vuitton SA v. Yang, 2007 FC 1179 ($ 100,000), Microsoft Corporation v. 9038-3746 Qubec Inc.., 2006 FC 1509 ($ 100,000); Icotop Inc.. c. Ferrand, [2005] RJQ 2376 (CS) ($ 10,000), Canada Allied Diesel Company v. RTI Turbo inc., JE 2005-2238, SOQUIJ AZ-50340177, 2005-10-25 (CS) ($ 10,000); Sunardi Structures Inc.. v. Nelson, JE 2003-585, SOQUIJ AZ-50160289, 2002-12-17 (CS) ($ 100,000); SETYM International Inc.. Belout c., [2001] RRA 1051 (CS) ($ 8,000).
62 c. De Montigny Brossard (Succession), supra note 59 ($ 10,000), Vancouver (City) v. Ward, [2010] 2 SCR 28, 2010 SCC 27 ($ 5,000), Royal Bank of Canada v. W. Got & Associates Electric Ltd. [1999] 3 SCR 408 ($ 100,000) Gauthier v. Beaumont, supra note 56 ($ 50,000), Quebec (Public Curator) v. National Union of Hospital St-Ferdinand, supra note 50 ($ 200,000); Genex Communications inc. c. Quebec Association for the music industry, entertainment and video, supra note 54 ($ 60,000); Solomon v. Quebec (Attorney General), supra note 53 ($ 50,000); c. Fillion Chiasson, supra note 32 ($ 200,000); Larose v. Fleury, 2006 QCCA 1050 ($ 50,000); Metromedia CMR Montreal inc. c. Johnson, 2006 QCCA 132 ($ 250,000); Lafferty, Harwood & Partners v. Parizeau, [2003] RJQ 2758 (CA) ($
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50,000); Historia inc. c. Gervais Harding and Associates Design inc., 2006 QCCA 560 ($ 100,000) Roy v. Patenaude, [1994] RJQ 2503 (CA) ($ 100,000), c. Montignac NSV Nutrinautes inc., 2008 QCCS 3465 ($ 45,000); Fournier v. Clement, 2008 QCCS 4715 ($ 25,000), MB-C. c. LH, [2005] RRA 569 (CS) ($ 15,000).
63 For example: Whiten v. Pilot Insurance Co., supra, note 57; Markarian c. CIBC World Markets. [2006] QJ No. 2851 (SC) [Markarian] Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130; Hinse c. Quebec (Attorney General), 2011 QCCS 1780. In the latter case, punitive damages of $ 2.5 million were granted. As the decision was appealed, the Court refrains from comment.
64 Ibid. [Markarian].
65 Supra, note 63.
12/29/2011

France Animation V Robinson, 2011 QCCA 1361 (English Translation)

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France Animation V Robinson, 2011 QCCA 1361 (English Translation)

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Translated version of 11-France_Animation,_s.a._c.

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Evidence of independent creation.

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Access to the work Robinson curiosity.

Repairs ordered by the trial judge.

Convictions for violation of copyright.

The compensatory damages. The profits.

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if the shareholders agree to terminate, by mutual consent.

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Chief Justice Robert wrote for the Court:

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courts, the judge did not err in concluding that

such Exhibit P-18 is part of Curiosity Robinson the original work.

Chief Justice McLachlin described the concept of "original work":

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Fenollar c. PRB Media, Preston c. 20th Century Fox Canada Ltd.

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consider whether the part taken by the defendant is important.

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characters support including:

01/03 Friday holiday (HOLIDAY):

3.2 BOOM BOOM (TIPTOE):

gruff, singles voluntary also attaches great he has a means

small, it is a gambler turns and easy to recognize, despite his disguise;

3.5 LAZY (Lazybones)

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fifty-two (52) synopsis and eighty-two (82) programming topics including:

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Tamaro, citing Avanti supra:

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61 It is clear, moreover, that counterfeiting is assessed first by the similarities,

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37 But we many acts limit, it itself by

to "disguise" the package

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admissibility of expert testimony Perraton.

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Q Okay. And then you remember the draft Claude Robinson?

Absolutely, yes, yes.

[...] When I first heard about it [Robinson Curiosity] II was quite

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The characters, the structures ...

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[823] In copyright issues in education, the authors write:

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[824] Considering the existence of significant similarities, including:

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