Date:
20070119
Docket:
T-299-05
Citation:
2007 FC 7
BETWEEN:
CATHERINE
LEUTHOLD
Plaintiff
and
CANADIAN BROADCASTING CORPORATION
and
JERRY MCINTOSH
Defendants
REASONS FOR ORDER
MORNEAU
P.
[1]
This
is a motion by the defendants for the determination of a series of 24 questions
grouped into six categories and arising out of the examination for discovery of
the plaintiff held on March 23, 2006 where apart from the questions in suit,
the remaining of the 550 questions asked of the plaintiff appear to have been answered
by the latter.
Background
[2]
Plaintiff,
a photo-journalist, and the Defendant Canadian Broadcasting Corporation
(hereinafter the CBC) entered, on or about October 7, 2002, into a licence agreement
(the licence) for the right to use five of plaintiff’s still photographs (the Stills)
in a CBC documentary for apparently “one broadcast” of that documentary. The
Stills pertain to various scenes at and near the site of the terrorists attack
on the World Trade Center in New York.
[3]
Plaintiff
alleges that the CBC made multiple additional unauthorized broadcasts of the
said documentary without advising the plaintiff and without compensation. The
plaintiff sustain that the defendants would therefore have infringed the
plaintiff’s rights under the Copyright Act, R.S.C. 1985, c. C-42, as
amended.
[4]
Plaintiff
is claiming general damages of $3,080.71 for each alleged unauthorized
broadcasts relying on the same amount that the parties agreed to in the licence
for one broadcast.
[5]
As
indicated, the outstanding questions consist of twenty-four (24) questions
classified in six (6) categories.
Analysis
[6]
The
general applicable principles as to questions to answer and records to produce
at an examination for discovery have been essentially laid down by this Court
in Reading & Bates Construction Co. and al v. Baker Energy Resources
Corp. and al (1988) 24 C.P.R. (3rd ) 66, at 70-72 (F.C.T.D.),
where Mr. Justice McNair, in a general six-point review, first defines in
points 1 to 3 the parameters that determine whether a question or a document is
relevant, and then, in points 4 to 6, sets out a series of circumstances or
exceptions in which, on the off chance, at the end of the day, a question need
not be answered or a document need not be produced.
[7]
With
this in mind, I shall now evaluate the propriety of the questions in suit using
the categorization followed by the parties.
Category 1
[8]
This
category deals with causation/ damages and contains 17 questions.
[9]
I
do not read plaintiff’s claim in terms of damages or causation as being related
to any specific analysis of competition from the CBC or specific reduced demand
for the plaintiff’s Stills. True, the plaintiff at paragraph 12 of her Reply
makes reference to said wording, but said paragraph 12 is there to form part of
the allegations of the plaintiff that contrary to what the CBC claims in its
Statement of Defence, CBC’s use of the Stills would not constitute a fair
dealing within the meaning of section 29.2 of the Copyright Act, supra.
[10]
Here
the plaintiff’s basis for the quantum of damages is the agreed licence fee.
[11]
As
argued by the plaintiff, damages for copyright infringement can be awarded “at
large” and specific damages need not be alleged or proven. To that effect, the
following extract from Hughes on Copyright & Industrial Design,
Second Edition, Butterworths, par 101 at page 659, is instructive:
In considering an award of
damages, it is not necessary to give specific proof of damages, although an award of loss of
profit may be given. Damages are at large; where damages are difficult
to quantify, such as the value of the taking of only a portion of a literary
work, the Court may assess damages on the basis of what might have been
reasonable. When only nominal damages are awarded, because there is no proof
of specific damages, the award is not necessarily small. Damages for
infringement of copyright are generally determined as those which the owner of
the copyright may have suffered due to the infringement, such as the licence
fee that otherwise would have been charged.
(Footnotes omitted, my underlinings)
[12]
I
am of the general view that the Defendants are on a fishing expedition and that
the questions under this category amount to an extensive inquiry into the
plaintiff’s financial affairs and business dealings which is neither necessary
nor relevant given the above teachings and considering that the third parties
involved are largely magazines and not national broadcasters as is the CBC. In
addition, the discovery of the Plaintiff has been wide enough to allow
eventually the judge at the merits to appreciate, as he might see fit, other
elements than the licence in his assessment of the damages claimed.
[13]
As
to causation, I do not see that further inquiry in that regard need be made.
[14]
In
a Schedule A attached to her written representations filed against the motion
at bar, the plaintiff has addressed specifically all 17 questions under this
category. I have reviewed the specific bases for refusal provided therein, as
well as a similar schedule put forth by the defendants, and I agree with the
plaintiff’s position on all questions under this category.
[15]
Therefore,
based on the foregoing, the questions under this category need not be answered.
[16]
However,
as agreed by the plaintiff at the hearing, the latter shall provide to the
Defendants a redacted copy of the agreement allegedly entered between the
plaintiff and Corbis in order to evidence the starting date of that agreement.
Category 2
[17]
This
one question category is entitled Course of dealing. Questions 61 request the
plaintiff to provide the name of the agency that would handled the plaintiff’s
photographs in relation to the usage of the Stills by Newsweek.
[18]
I
do not see this question as being relevant here since any limits or terms
applicable in one licence pertain and are limited to that licence. In
addition, I think the Defendants are fishing in hope for potential harmful
information to be disclosed. This question, therefore, needs not be answered.
Category 3
[19]
This
category is entitled Res Gestae. The one question under this category
need not be answered as I am of the view that the wording it used makes the
question too vague and too broad to be understood and answered. The same
conclusion applies to question 480-484 under category 6.
Category 4
[20]
The
one question under this category entitled liability has now been answered
sufficiently. No further answer is required. Same reasoning applies to
question 490 under category 6.
Category 5
[21]
The
two questions under this category entitled Evidence need not be answered for
the reasons found in Schedule A of plaintiff.
Category 6
[22]
This
category has been dealt and denied by what is contained in paragraphs [19] and
[20] above.
“Richard
Morneau”
Montréal, Quebec
January 19,
2007
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