Date: 20101209
Docket: T-1938-10
Citation: 2010
FC 1267
Toronto, Ontario, December 9, 2010
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
|
|
PREMIUM SPORTS BROADCASTING INC.
|
|
|
|
Plaintiff
|
|
and
|
|
|
598096
ONTARIO LIMITED, carrying on business as STUDIO 10 and ANDRE TRAHAN, HEMATIE
GOWKARRAN, (also known as MEMATIE S. GOWKARRAN, also known as SHIRLEY
GOWKARRAN), carrying on business as D’PAVILION SPORTS BAR / D’PAVILION
RESTAURANT & LOUNGE,
2037939
ONTARIO LIMITED, carrying on business as KEYSTORM PUB
and
DANIEL J. THOMPSON, GVANDE LIMITED, carrying on business as SERVICE GRILL
& SIDETRACK LOUNGE and GREGORY VANDETTE, ORIGINAL’S SPAGHETTI WESTERN
LTD., carrying on business as ORIGINAL’S, NADA MORRA and TONY MORRA,
1682211
ONTARIO INC., carrying on business as THE SPORTS CAFE CHAMPION and KOSTA
GRIGORIADIS,
WALDEMAR
BABIS, carrying on business as DOMENIC PUB
|
|
|
|
Defendants
(Ontario)
|
|
|
and
|
|
|
|
9000-0696
QUEBEC INC., 2168-8700 QUEBEC INC., 2425-2058 QUEBEC INC., carrying on
business as BAR CHEZ GEORGE/PUB HARAIKI and also carrying on business as BAR
CHEZ GEORGES/PUB HARAIKI and GEORGE(S) TRITSIS
|
|
|
|
|
Defendants
(Quebec)
|
|
|
and
|
|
|
|
1473395
ALBERTA LTD., carrying on business as HAT TRICKS RESTAURANT & LOUNGE,
JASON FOREMAN and BIYU LIANG
|
|
|
|
|
Defendants
(Alberta)
|
|
|
and
|
|
|
|
0697655
B.C. LTD., carrying on business as ROCKING HORSE PUB and DAVID WILLOUGHBY, MAXX’S
FITNESS LTD., carrying on business as MAXIMUM FITNESS SPORTS LOUNGE, GREGG
PEARSON and KEVIN DENNIS FRANK HALL
|
|
|
|
|
Defendants
(British Columbia)
|
|
|
|
|
REASONS FOR ORDER AND ORDER
I. Background
[1]
On
December 6th, 2010 Premium Sports Broadcasting, (Premium) moved the
Court for an interlocutory injunction in support of an action filed on November
24, 2010 against a number of Sports Bars in Ontario (7), Quebec (2) and
British Columbia (2).
[2]
The
defendant 1682211 Ontario Inc. (The Sports Café Champion) and its controlling
mind Kosta Grigoriadis operating a Sports Bar in Toronto were named defendants in the action.
Premium initiated similar actions in Court Files T-1935 and T-1939 in which the
defendants were also Sports Bars. Interlocutory relief in those cases was also
sought by Premium in this Court on December 6, 2010.
[3]
In its
November 24 action, Premium claims the defendants infringed the Copyright
Act and the Radiocommunication Act by publicly showing, exhibiting
or performing sports events licensed to or by Premium. The particular focus, albeit
not the only ones, are sports events described as matches and events emanating
from Ultimate Fighting Championship (UFC) events distributed by broadcasting
undertakings to both satellite and cable pay-per-view subscribers. In
particular it is asserted by Premium that UFC is the premium provider of Mixed
Martial Arts (MMA) events in North America and that MMA is currently one of the
fastest growing sports in North
America.
[4]
In its
action, Premium claimed the defendant Sports Bars are commercial establishments
in Canada which could only exhibit each live UFC sports event
distributed via PPV if it obtained the authority to exhibit the particular
event from Canadastar as agents of Premium and Zuffa LLC (Zuffa) the owner of
UFC with whom Premium entered into an argument pursuant to which Zuffa assigned
to Premium its copyright to each live event.
[5]
In
particular, in its action against the defendant The Sports Café Champion (SCC)
Premium alleges, based on the affidavit of Tim Jackson who investigated the
Sports Bar on May 29th, 2010, that this business exhibited UFC 114
on May 29, 2010 to at least 35 patrons in attendance to watch the exhibition.
Premium alleged this establishment was not authorized to exhibit UFC 114 or any
other UFC pay-per-view events.
[6]
In his
affidavit in support of Premium’s interlocutory motion Rod Keary, an officer
and director of Premium, stated he believed the SCC was using either an illegal
or illegally-modified satellite system to gain access to the UFC 114 event. It
was his belief that the SCC has exhibited other UFC pay-per-view events in the
same manner, without authorisation.
[7]
In his
affidavit, Mr. Keary states that on June 1st, 2010 he sent a
letter to the SCC informing it of the results of Mr. Jackson’s investigation
and invited it to contact him in an effort to resolve the matter. He sent a
follow-up letter on June 18th, 2010. Essentially that letter
puts the SCC on notice that its conduct is unlawful unless authorized by
Canadastar. Mr. Keary deposed that it was his belief that, unless the requested
injunction is granted against the SCC, it will continue to show other UFC
pay-per-view events including the upcoming UFC 124 scheduled to be broadcast
on December 11, 2010 from Montreal (my emphasis) as well as any other
Premium proprietary event that may be of interest to the SCC to which they are
able to gain access using their illegal or unauthorized receiving equipment.
[8]
In his
affidavit Mr. Keary deposed to the issue of Balance of
Convenience/Irreparable Harm/Damages. I summarize the substance of his
affidavit on this point:
a.
The need
for an interlocutory injunction in the context of the number of UFC events, the
vast number of commercial establishments and the ease of illegal access to UFC
PPV events through unauthorized receiving equipment.
b.
The fact
that Premium needs to preserve the integrity of its licensing system related to
the piracy of UFC PPV events and the duty owed to its customers who have
expressed concerns about illegal exhibition by their competitors which, in some
instances has led customers to warn Premium they will not purchase future UFC
events unless Premium stops unauthorized exhibitions and protects the integrity
of its licensing system. This will lead to lost sales opportunities and lost
existing market share.
c.
Unauthorized
and illegal access to UFC events infringes upon and creates confusion with
Premium’s Trade-marks related to the UFC trade name.
d.
Continued
ability by the defendants to intercept and decode live transmission of UFC PPV
events contrary to the provisions of the Radiocommunication Act, if not
enjoined, Premium has and will continue to suffer irreparable harm.
II. The hearing of the motion
[9]
At the
return of Premium’s motion for an interlocutory injunction, Counsel for SCC
entered an appearance and filed a responding motion record with authorities. He
argued Premium:
i.
Failed to
establish irreparable harm;
ii.
It delayed
seeking relief;
iii.
It has
failed to establish it is entitled to relief in the nature of an Anton Piller
Order; and
iv.
It has not
provided sufficient information concerning the undertaking for damage.
[10]
SCC’s
arguments must be appreciated in the following context:
i.
It has yet
to file a statement of defence to the underlying action;
ii.
It did not
file a responding affidavit denying any of the allegations contained in Mr.
Keary’s affidavit and in particular his allegation that SCC had unlawfully
exhibited UFC events in the past and intended to do so in the future; and
iii.
Did not
move the Court for the right to cross examine Mr. Keary on his affidavit.
[11]
In short,
the only evidence I have before me is Premium’s unchallenged evidence
particularly on irreparable harm and balance of convenience. I have no evidence
on the other side except unsupported submissions by Counsel for SCC. I do not
accept his submission that:
i.
Premium
has delayed relief; it tried to settle the matter;
ii.
Mr. Keary’s
affidavit speaks to irreparable harm and was not cross-examined;
iii.
Premium
did not seek relief in the nature of an Anton Piller Order; and
iv.
Mr. Keary
undertook in his affidavit to abide by any Court order on damages.
[12]
For the
reasons set out in Premium’s written representations, I am satisfied that the
Plaintiff has raised a serious issue to be tried, has established irreparable
harm and the balance of convenience favours it.
[13]
The
hearing of Premium’s motion was overshadowed by one fact and that is the UFC
event to take place in Montreal on Saturday December 11th,
2010 which will be carried on satellite and cable to Premium’s PPV customers. I
was told that this event is to be a “blockbuster” attraction with the potential
of breaking records.
[14]
I asked
Counsel for SCC whether his client intended to show this event without
authorisation. There was no answer. I encouraged the parties to resolve the
matter. I was informed yesterday that discussions had been held but, the matter
could not be resolved.
ORDER
THIS COURT ORDERS that:
1.
An
interlocutory injunction be and is hereby granted, until trial or further order
of this Court, against 1682211 ONTARIO INC., carrying on business as THE SPORTS
CAFÉ CHAMPION and KOSTA GRIGORIADIS restraining each of them, their officers,
directors, employees, agents, assigns, servants, or any person acting under
their instructions, or any persons having knowledge of this order or any of its
terms from publicly showing, exhibiting, performing or from decoding,
decrypting, or downloading via the Internet, any broadcasts, telecasts or
signal feed, regardless of the source of broadcast or signal feed, without the
written authorization and consent of the plaintiff, any of the following
events:
(a)
All
Ultimate Fighting Championship (UFC) pay-per-view (PPV) matches and events
broadcast in Canada from today’s date up to and
including December 31, 2011;
(b)
All
matches and events broadcast exclusively by Premium in Canada via the Setanta Sports Channel.
2. The
issuance of this Order is premised upon the plaintiff’s undertaking to abide by
any order concerning damages that the Court may make if it ultimately appears
that the granting of the injunction herein has caused damage to the defendant.
“François
Lemieux”
Email this Content