BETWEEN:
COLUMBIA PICTURES INDUSTRIES, INC.,
DISNEY ENTERPRISES, INC.,
METRO-GOLDWYN-MAYER STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,
TRISTAR PICTURES, INC.,
TWENTIETH CENTURY FOX FILM CORPORATION,
UNITED ARTISTS PICTURES, INC.,
UNITED ARTISTS CORPORATION,
UNIVERSAL CITY STUDIOS, INC.,
WARNER BROS., a division of
TIME WARNER ENTERTAINMENT CO., L.P.
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REASONS FOR JUDGMENT
(Delivered from the bench in Montreal, Quebecon March 4, 2005)
HUGESSEN J.
[1] The plaintiffs are the owners of copyright in a number of motion picture films.
[2] They say that the defendant has sold and distributed "black boxes" or decoders which are used for the purpose of decoding encrypted television signals in breach of their copyright.
[3] They sue the defendant for breaches of the Copyright Act, R.S.C., 1985, c. C-42, and
the Radiocommunication Act, R.S.C., 1985, c. R-2 and they now move for summary judgment on that action.
[4] Apart from affidavit evidence of a wholly general nature of the alleged illegal activities by the defendant which, in my view, is not sufficiently specific to allow me to give judgment in favour of the plaintiffs on a motion such as this, the plaintiffs rely, as subsection 18(3) of the Radiocommunication Act allows them to do, on a plea of guilty entered by the defendant to two charges under sections 9 and 10 of that Act. I set out here the text of section 18:
18. (1) Any person who
may, where the person has suffered loss or damage as a result of conduct that is contrary to paragraph 9(1)(c), (d) or (e) or 10(1)(b), in any court of competent jurisdiction, sue for and recover damages from the person who engaged in the conduct, or obtain such other remedy, by way of injunction, accounting or otherwise, as the court considers appropriate.
(4) For the purposes of an action under subsection (1), the Federal Court is a court of competent jurisdiction.
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18. (1) Peut former, devant tout tribunal compétent, un recours civil à l'encontre du contrevenant quiconque a subi une perte ou des dommages par suite d'une contravention aux alinéas 9(1)c), d) ou e) ou 10(1)b) et:
(3) Dans tout recours visé au paragraphe (1) et intenté contre une personne, les procès-verbaux relatifs aux procédures engagées devant tout tribunal qui a déclaré celle-ci coupable d'une infraction aux alinéas 9(1)c), d) ou e) ou 10(1)b) constituent, sauf preuve contraire, la preuve que cette personne a eu un comportement allant à l'encontre de ces dispositions; toute preuve fournie lors de ces procédures quant à l'effet de l'infraction sur la personne qui intente le recours constitue une preuve à cet égard.
(4) La Cour fédérale est, pour l'application du paragraphe (1), un tribunal compétent.
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[5] The defendant's affidavit evidence alleges and asserts that his guilty plea was entered solely for the purpose of avoiding the costs and inconvenience of a trial. He was fined $5,000.00 as a result of that plea.
[6] The plaintiffs invite me to give little credit to that allegation and in other circumstances I might be inclined to do so, but the plaintiffs, unfortunately for them, have failed to cross-examine the defendant on his affidavit as they had the opportunity to do and as the Rules permit. In my view, one cannot simply discredit sworn evidence out of hand where one has neglected to cross-examine the deponent of that evidence.
[7] In those circumstances, while I do not necessarily find that the defendant's affidavit evidence is true or credible, neither can I discredit it entirely. I find it to be "evidence to the contrary" within the meaning of subsection 18(3) and since the evidence of the guilty plea is, as I have already said, in my view, the only evidence of sufficient specificity to justify the Court in finding that the defendant has in fact committed the acts with which the plaintiffs charge him, I am obliged to dismiss the motion for summary judgment. I shall do so, however, without costs.
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Judge
Ottawa, Ontario
March 9, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-42-02
STYLE OF CAUSE: COLUMBIA PICTURES INDUSTRIES, INC. and others
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SERGE GAUDREAULT
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: March 4, 2005
REASONS FOR JUDGMENT: HUGESSEN J.
DATED: March 9, 2005
APPEARANCES:
Daniel Ovadia FOR PLAINTIFFS
Louis Savoie FOR DEFENDANT
SOLICITORS OF RECORD:
OVADIA, SAUVAGEAU FOR PLAINTIFFS
MONTREAL, QUEBEC
DK
JUTRAS ET ASSOCIÉS FOR DEFENDANT
DRUMMONDVILLE, QUEBEC