![](/scc-csc/scc-csc/en/13390/281019/res.do)
SUPREME
COURT OF CANADA
Citation:
Cinar Corporation v. Robinson, 2013 SCC 73, [2013] 3
S.C.R. 1168
|
Date:
20131223
Docket:
34466, 34467, 34468, 34469
|
Between:
Cinar
Corporation and Les Films Cinar inc.
Appellants
and
Claude
Robinson and Les Productions Nilem inc.
Respondents
-
and -
France
Animation S.A., Christophe Izard, Ravensburger Film + TV GmbH,
RTV
Family Entertainment AG, Christian Davin, Ronald A. Weinberg, Ronald A.
Weinberg, in his capacity as sole liquidator of the succession of the late
Micheline Charest, BBC Worldwide Television, Theresa Plummer-Andrews, Hélène
Charest, McRaw Holdings Inc., Videal Gesellschaft Zur Hertellung Von
Audiovisuellen Produkten MHB, 3918203 Canada Inc. and Music Canada
Interveners
And
Between:
Ronald
A. Weinberg and Ronald A. Weinberg, in his capacity as
sole
liquidator of the succession of the late Micheline Charest
Appellants
and
Claude
Robinson and Les Productions Nilem inc.
Respondents
-
and -
Christophe
Izard, France Animation S.A., Ravensburger Film + TV GmbH,
RTV
Family Entertainment AG, Cinar Corporation, Les Films Cinar inc., Christian
Davin, BBC Worldwide Television, Theresa Plummer-Andrews, Hélène Charest, McRaw
Holdings Inc., Videal Gesellschaft Zur Hertellung Von Audiovisuellen Produkten
MHB, 3918203 Canada Inc. and Music Canada
Interveners
And
Between:
Christophe
Izard, France Animation S.A.,
Ravensburger
Film + TV GmbH and RTV Family Entertainment AG
Appellants
and
Claude
Robinson and Les Productions Nilem inc.
Respondents
-
and -
Les
Films Cinar inc., Cinar Corporation,
Ronald
A. Weinberg, Ronald A. Weinberg, in his capacity as sole liquidator of the
succession of the late Micheline Charest and Music Canada
Interveners
And
Between:
Claude
Robinson and Les Productions Nilem inc.
Appellants
and
France
Animation S.A., Ravensburger Film + TV GmbH, Videal Gesellschaft Zur Hertellung
Von Audiovisuellen Produkten MHB, RTV Family Entertainment AG, Christian Davin,
Christophe Izard, Les Films Cinar inc., Cinar Corporation, 3918203 Canada Inc.,
Ronald A. Weinberg and Ronald A. Weinberg, in his capacity as sole liquidator
of the succession of the late Micheline Charest
Respondents
-
and -
Music
Canada
Intervener
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell
and Moldaver JJ.
Reasons for
Judgment:
(paras. 1 to 152)
|
McLachlin C.J. (LeBel, Fish, Abella, Rothstein, Cromwell
and Moldaver JJ. concurring)
|
![](/scc-csc/scc-csc/en/13390/281018/res.do)
Claude Robinson and Les Productions Nilem inc., 2013 SCC 73,
[2013] 3 S.C.R. 1168
Cinar Corporation and Les Films Cinar inc. Appellants
v.
Claude Robinson and Les Productions Nilem inc. Respondents
and
France
Animation S.A., Christophe Izard,
Ravensburger
Film + TV GmbH,
RTV
Family Entertainment AG,
Christian
Davin, Ronald A. Weinberg,
Ronald
A. Weinberg, in his capacity as sole liquidator
of
the succession of the late Micheline Charest,
BBC
Worldwide Television, Theresa Plummer‑Andrews,
Hélène
Charest, McRaw Holdings Inc.,
Videal
Gesellschaft Zur Hertellung Von Audiovisuellen
Produkten MHB, 3918203 Canada Inc. and Music Canada Interveners
‑ and ‑
Ronald
A. Weinberg and Ronald A. Weinberg,
in
his capacity as sole liquidator of the succession
of the late Micheline Charest Appellants
v.
Claude Robinson and Les Productions Nilem inc. Respondents
and
Christophe
Izard, France Animation S.A.,
Ravensburger
Film + TV GmbH,
RTV
Family Entertainment AG,
Cinar
Corporation, Les Films Cinar inc.,
Christian
Davin, BBC Worldwide Television,
Theresa
Plummer‑Andrews,
Hélène
Charest, McRaw Holdings Inc.,
Videal
Gesellschaft Zur Hertellung Von Audiovisuellen
Produkten MHB, 3918203 Canada Inc. and Music Canada Interveners
‑ and ‑
Christophe
Izard, France Animation S.A.,
Ravensburger
Film + TV GmbH and
RTV Family Entertainment AG Appellants
v.
Claude Robinson and Les Productions Nilem inc. Respondents
and
Les Films
Cinar inc., Cinar Corporation, Ronald A. Weinberg,
Ronald
A. Weinberg, in his capacity as sole liquidator
of
the succession of the late Micheline Charest and
Music Canada Interveners
‑ and ‑
Claude Robinson and Les Productions Nilem inc. Appellants
v.
France
Animation S.A., Ravensburger Film + TV GmbH,
Videal
Gesellschaft Zur Hertellung Von Audiovisuellen Produkten MHB,
RTV
Family Entertainment AG, Christian Davin, Christophe Izard,
Les Films
Cinar inc., Cinar Corporation, 3918203 Canada Inc.,
Ronald
A. Weinberg and Ronald A. Weinberg,
in
his capacity as sole liquidator of the succession
of the late Micheline Charest Respondents
and
Music Canada Intervener
Indexed as: Cinar Corporation v. Robinson
2013 SCC 73
File Nos.: 34466, 34467, 34468, 34469.
2013: February 13; 2013: December 23.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein,
Cromwell and Moldaver JJ.
on appeal from the court of appeal for quebec
Intellectual
property — Copyright — Infringement — Reproduction of a substantial part of an
original work — Whether trial judge failed to follow correct approach in
assessing whether a “substantial part” of a work was reproduced — Whether trial
judge failed to give sufficient weight to differences between works at issue —
Whether trial judge erred in finding that features of original work are
protected by the Copyright Act — Whether trial judge erred by relying on
inadmissible expert evidence.
Intellectual
property — Copyright — Infringement — Damages — Quantum — Disgorgement of
profits — Whether Court of Appeal erred in interfering with trial judge’s
assessment of profits — Whether liability for disgorgement of profits may be
imposed on a solidary basis — Whether Andrews trilogy cap applies to non‑pecuniary
damages that do not stem from bodily injury — Whether Court of Appeal erred in
interfering with trial judge’s assessment of punitive damages — Whether
punitive damages may be awarded on a solidary basis — Copyright Act, R.S.C.
1985, c. C‑42, s. 35 — Civil Code of Québec, S.Q. 1991,
c. 64, art. 1621 — Charter of human rights and freedoms, R.S.Q.,
c. C‑12, s. 49.
R
spent years developing an educational children’s television show, “The
Adventures of Robinson Curiosity” (“Curiosity”). R drew his inspiration
from Daniel Defoe’s novel Robinson Crusoe, as well as from his own life
experiences. He developed characters, drew detailed sketches and storyboards,
wrote scripts and synopses, and designed promotional materials for his Curiosity
project.
From
1985 to 1987, R and his company, Les Productions Nilem inc. (“Nilem”),
undertook various initiatives to get the Curiosity project developed.
In so doing, R gave a copy of his Curiosity work to W and C, who were
directors and officers of Cinar Corporation (“Cinar”). During this same
period, a presentation on Curiosity was given to I, a French creator of
children’s television shows. Despite the various efforts undertaken by R and
his partners, the project failed to attract investors and stalled.
R
shelved his project, but did not forget about it. On September 8, 1995, R
watched on television the first episode of a new children’s television show,
“Robinson Sucroë” (“Sucroë”). He was stunned to see that Sucroë,
as he perceived it, was a blatant copy of Curiosity. R subsequently
discovered that several parties who had been given access to his Curiosity project,
namely Cinar, W, C and I, were also involved in the production of Sucroë.
R
and Nilem commenced an action for copyright infringement against Cinar, W, C,
and I, and various co‑producers and distributors of Sucroë.
The
trial judge concluded that R’s Curiosity was an original work protected
by copyright, that the creators of Sucroë had copied Curiosity,
and that the features reproduced in Sucroë represented a substantial
part of Curiosity. He found that Cinar, W, C, I, France
Animation S.A., Ravensburger Film + TV GmbH and RTV Family Entertainment AG
(collectively the “Cinar appellants”) were liable for infringement of
copyright. He also held D, the chief executive officer of France Animation at
the relevant time, personally liable for the infringement. Finally, the trial
judge found that Cinar, W, and C were extra‑contractually liable towards
R and Nilem for having violated their obligations of good faith and of loyalty.
The
trial judge awarded damages on a solidary basis (the equivalent of “joint and
several” liability in the common law) and costs in the amount
of $5,224,293: $607,489 in compensatory damages for R’s pecuniary losses
stemming from the infringement; $1,716,804 to disgorge the profits earned as a
result of the infringement; $400,000 for the psychological harm suffered by R; $1,000,000
in punitive damages; and $1,500,000 for costs on a solicitor‑client
basis.
The
Court of Appeal upheld the trial judge’s findings on infringement. It
confirmed the trial judge’s findings of personal liability for copyright
infringement, except for D, against whom the evidence was insufficient in its
view.
The
Court of Appeal also upheld the trial judge’s award of compensatory damages for
R’s pecuniary losses, subject to a minor mathematical correction. It rejected
the trial judge’s order for disgorgement of profits against W, C and I because
those profits were retained by corporations. It also ordered disgorgement on a
joint basis (the equivalent of “several” liability in the common law) rather
than solidarily. In addition, the Court of Appeal excluded amounts incorrectly
included by the trial judge in the calculation of profits, reducing the amount
to be disgorged.
The
Court of Appeal held that the cap established in the Andrews trilogy was
applicable to the award for psychological suffering and reduced the award to $121,350,
which represents 50 percent of the cap’s value at the date of the summons.
In
addition, the Court of Appeal reduced the award for punitive damages from $1,000,000
to $250,000, on the ground that punitive damages in Quebec must be moderate,
and held that they could not be awarded on a solidary basis. It held Cinar
liable for $100,000 in punitive damages, and each of W, C and I liable
for $50,000. It also affirmed the trial judge’s award of $1,500,000 for
costs on a solicitor‑client basis, but declined to award additional costs
on a solicitor‑client basis for the appeal.
Four
appeals have been brought from the Court of Appeal’s judgment (in files 34466,
34467, 34468, and 34469). The Cinar appellants appeal the finding of liability
for infringement (in files 34466, 34467 and 34468). R and Nilem appeal the
reduction in damages and disgorgement of profits ordered by the Court of Appeal
(in file 34469).
Held:
The appeals in files 34466, 34467 and 34468 should be dismissed, and the appeal
in file 34469 should be allowed in part.
The need to strike an appropriate balance between giving protection
to the skill and judgment exercised by authors in the expression of their
ideas, on the one hand, and leaving ideas and elements from the public domain
free for all to draw upon, on the other, forms the background against which the
arguments of the parties must be considered.
In
the present case, the trial judge found that the Cinar
appellants copied a number of features from R’s Curiosity and that, considered as a whole, the copied
features constituted a substantial part of R’s work. The
Cinar appellants argue that instead of applying a holistic approach, the trial
judge should have applied a three‑step approach requiring him to
(1) determine what elements of Curiosity were original, within the
meaning of the Copyright Act ; (2) exclude non‑protectable
features of R’s work (such as ideas, elements drawn from the public domain, and
generic elements commonplace in children’s television shows); and
(3) compare what remains of Curiosity after this “weeding‑out”
process to Sucroë, and determine whether a substantial part of Curiosity
was reproduced.
As a general matter, it is important to not
conduct the substantiality analysis by dealing with the copied features
piecemeal. The approach proposed by the Cinar
appellants would risk dissecting R’s work into its component parts. The
“abstraction” of R’s work to the essence of what makes it original and the
exclusion of non‑protectable elements at the outset of the analysis would
prevent a truly holistic assessment. This approach focuses unduly on whether
each of the parts of R’s work is individually original and protected by
copyright law. Rather, the cumulative effect of the features copied from the
work must be considered, to determine whether those features amount to a
substantial part of R’s skill and judgment expressed in his work as a whole. The trial judge accordingly did not err by
failing to follow the three‑step approach advocated by the Cinar
appellants.
Likewise,
the trial judge did not err by engaging in a qualitative and holistic assessment
of the similarities between the works, which took into account the relevant
similarities and differences between the works. The question of whether there
has been substantial copying focuses on whether the copied features constitute
a substantial part of the plaintiff’s work — not whether they amount to
a substantial part of the defendant’s work. The alteration of copied
features or their integration into a work that is notably different from the
plaintiff’s work does not necessarily preclude a claim that a substantial part
of a work has been copied.
In essence, the aspects of the trial judge’s reasons that the Cinar
appellants take issue with are findings of mixed fact and law. They invite
this Court to embark on a fresh assessment of the features copied from Curiosity.
However, they have failed to
demonstrate palpable or overriding errors in the trial judge’s findings on
substantiality.
The
Cinar appellants further argue that the trial judge based the bulk of his
findings on the issue of substantial copying on inadmissible expert evidence. For expert evidence to be admitted at trial, it must (a) be
relevant; (b) be necessary to assist the trier of fact; (c) not
offend any exclusionary rule; and (d) involve a properly qualified
expert. These criteria apply to trials for copyright infringement, as they do
in other intellectual property cases.
The Cinar appellants argue that the second criterion — necessity of
the evidence — is not met in the case at hand. The expert evidence was not
necessary to assist the court, they say, because the question of whether a
substantial part has been copied must be assessed from the perspective of the
lay person in the intended audience for the works at issue.
The
perspective of the lay person in the intended audience for the works at issue
is a useful one. It has the merit of keeping the analysis of similarities
concrete and grounded in the works themselves, rather than in esoteric theories
about the works. However, the question always remains whether a substantial
part of the plaintiff’s work was copied. This question
should be answered from the perspective of a person whose senses and knowledge
allow him or her to fully assess and appreciate all relevant aspects — patent
and latent — of the works at issue. In some cases, it may be necessary to go
beyond the perspective of a lay person in the intended audience for the work,
and to call upon an expert to place the trial judge in the shoes of someone reasonably versed in the relevant art or technology. In the present case, the necessity criterion of the test for the admissibility
of expert evidence is satisfied.
With respect to damages, R and Nilem seek inter
alia to have the trial judge’s entire award of profits reinstated.
Regarding profits from the Sucroë soundtrack, they argue that there is a
causal link between the infringement and the profits derived from the
soundtrack and that the trial judge therefore correctly included them as part
of his award of profits. The apportionment of profits between infringing and
non‑infringing components of a work is essentially a factual
determination which is subject to judicial discretion. An appellate court may
only disturb the trial judge’s findings on apportionment if there are errors of
law or palpable and overriding errors of fact. The trial judge did not make a
reviewable error in concluding that it was inappropriate to apportion profits
to the soundtrack as a non‑infringing component of the work. The Court
of Appeal accordingly erred by interfering with the trial judge’s conclusion in
this regard.
As for the trial judge’s characterization of
the payment from Ravensburger Film + TV GmbH to France Animation S.A. as
revenue, there is agreement with the Court of Appeal that this characterization
constitutes a palpable and overriding error and that this amount should be removed
from the revenues taken into account when calculating the profits generated by
Sucroë. However, in connection with the characterization of the payment due
by Cinar to a partnership called Jaffa Road as revenue, the trial judge did not
err in this regard and this amount should not be deducted as an expense when
calculating the profits from Sucroë.
On the issue of liability for disgorgement of profits under the Copyright Act , the Court of Appeal was correct in concluding that the trial judge
erred in ordering disgorgement against all infringers on a solidary basis.
Section 35 of the Copyright Act provides a dual remedy for
copyright infringement: damages for the plaintiff’s losses and disgorgement of
the profits retained by the defendant. The latter is not intended to
compensate the plaintiff and is not subject to the principles that govern
general damages awarded under Quebec’s law of extra‑contractual
liability, whose aim is compensatory. Disgorgement under s. 35 of the Copyright
Act goes no further than is necessary to prevent each individual defendant
from retaining a wrongful gain. Defendants cannot be held liable for the gains
of co‑defendants by imposing liability for disgorgement on a solidary
basis. For the same reasons, W, C, and I are not personally liable to disgorge
profits. In addition, the Court of Appeal’s apportionment with respect to the
disgorgement of profits should be maintained.
In connection with non‑pecuniary damages, and in particular
whether the Andrews trilogy cap should be applied in the present case, the scope of application of the cap beyond non‑pecuniary
damages stemming from bodily injury should not be extended. Furthermore, R’s
non‑pecuniary damages cannot be characterized as stemming from bodily
injury, within the meaning of art. 1607 of the Civil Code of Québec.
It is more appropriate to characterize R’s psychological suffering as a non‑pecuniary
damage stemming from material injury. Indeed, the infringement of
copyright was a breach of R’s property rights. It is the initial breach,
rather than the consequences flowing from that breach, which serves to
characterize the type of injury suffered. The Court of Appeal accordingly
erred in applying the Andrews trilogy cap in the present case.
In
terms of assessing quantum for this injury, there is agreement with the trial
judge that R’s non‑pecuniary damages are analogous to those claimed by a
victim of defamation. The trial judge had the advantage of observing R in
court over a long period of time and was well placed to conduct a personalized
evaluation of his non‑pecuniary damages. He made no palpable and
overriding error in his assessment of R’s non‑pecuniary damages.
As
regards punitive damages, they cannot be awarded on a solidary basis. This
Court has recognized that the punitive damages regime under the Charter is
autonomous from the extra‑contractual civil liability regime established
under the Civil Code of Québec. Article 1526 of the Civil Code
of Québec applies to extra‑contractual fault causing injury and
cannot ground the solidarity of punitive damages awarded under the Charter.
Furthermore, awarding punitive damages on a solidary basis would be
inconsistent with the principles set forth in art. 1621 of the Civil
Code of Québec, which expressly requires that the
objectives of punitive damages — prevention, deterrence (both specific and
general), and denunciation of acts that are particularly reprehensible in the
opinion of the justice system — be taken into account when awarding them. Both the objectives of punitive damages and
the factors relevant to assessing them suggest that awards of punitive damages
must be individually tailored to each defendant against whom they are ordered.
This requirement of individualization militates against awarding punitive
damages on a solidary basis.
In
addition, the Court of Appeal was correct to re‑assess the quantum of
punitive damages, although it did not give sufficient weight to the gravity of
the conduct in this case. Indeed, Cinar, W, C, and I consistently and
contemptuously denied having access to R’s work, and disparaged R’s claims that
they had copied his work. The impact of this conduct
on R was equally serious. It
deprived him not only of a source of revenue, but also of his sense of
proprietorship over a project that had deep personal significance for him. This said, punitive damages must be
awarded with restraint. Article 1621 of the Civil
Code of Québec expressly
provides that the award of punitive damages “may not exceed what is sufficient
to fulfil their preventive purpose”. An amount of $500,000 reaches an
appropriate balance between the overarching principle of restraint that governs
these damages, on the one hand, and the need to deter conduct of this gravity,
on the other. The Court of Appeal held Cinar liable for two‑fifths of
the amount of punitive damages, and each of W, C, and I liable for one‑fifth, and this represents a reasonable
apportionment in the circumstances.
Cases Cited
Distinguished:
Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Thornton
v. School District No. 57 (Prince George), [1978] 2 S.C.R. 267; Arnold
v. Teno, [1978] 2 S.C.R. 287; referred to: Massie & Renwick
Ltd. v. Underwriters’ Survey Bureau Ltd., [1940] S.C.R. 218; Théberge v.
Galerie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336; Society
of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012
SCC 36, [2012] 2 S.C.R. 326; Entertainment Software Association v. Society
of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2
S.C.R. 231; Rogers Communications Inc. v. Society of Composers, Authors and
Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; CCH
Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R.
339; Ladbroke (Football), Ltd. v. William Hill (Football), Ltd., [1964]
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[2001] 1 All E.R. 700; Nichols v. Universal Pictures Corporation, 45
F.2d 119 (1930); Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235;
Baigent v. The Random House Group Ltd., [2007] EWCA Civ 247, [2007]
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(3d) 339; Computer Associates International, Inc. v. Altai, Inc., 982 F.2d
693 (1992); Productions Avanti Ciné‑Vidéo Inc. v. Favreau (1999), 177
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Metro‑Goldwyn Pictures Corporation, 106 F.2d 45 (1939); Wellcome
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Imperial Oil Ltd., [1997] 2 F.C. 3; Monsanto Canada Inc. v. Schmeiser,
2004 SCC 34, [2004] 1 S.C.R. 902; Quebec (Public Curator) v. Syndicat
national des employés de l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211;
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of Toronto, [1995] 2 S.C.R. 1130; Snyder v. Montreal Gazette Ltd.,
[1988] 1 S.C.R. 494; Schreiber v. Canada (Attorney General), 2002 SCC
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to appeal refused, [2011] 3 S.C.R. v; Gauthier v. Beaumont, [1998] 2
S.C.R. 3; Stations de la Vallée de Saint‑Sauveur inc. v. M.A.,
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Charter of human rights and freedoms,
R.S.Q., c. C‑12, ss. 1, 4, 6, 49.
Civil Code of Québec, S.Q. 1991,
c. 64, arts. 1525, 1526, 1607, 1618, 1619, 1621, 2846, 2849.
Copyright
Act, R.S.C. 1985, c. C‑42, ss. 2 “infringing”, 3, 5, 27(1),
34 [am. 2012, c. 20, s. 43], 34.1, 35.
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APPEALS
from a judgment of the Quebec Court of Appeal (Thibault, Morin and Doyon JJ.A.),
2011 QCCA 1361, [2011] R.J.Q. 1415, 108 C.P.R. (4th) 165, [2011] Q.J. No. 9469
(QL), 2011 CarswellQue 15414, SOQUIJ AZ‑50771854, setting aside in part a decision of Auclair J., 2009 QCCS 3793, [2009]
R.J.Q. 2261, 83 C.P.R. (4th) 1, [2009] R.R.A. 1135, [2009] J.Q. no 8395
(QL), 2009 CarswellQue 8380, SOQUIJ AZ‑50572488.
Appeals in files 34466, 34467 and 34468 dismissed. Appeal in file 34469
allowed in part.
William
Brock and Cara Cameron, for the appellants
(34466)/respondents (34469) Cinar Corporation and Les Films Cinar inc. and for
the respondent (34469) 3918203 Canada Inc.
Guy
Régimbald, Normand Tamaro, Gilles M.
Daigle and Marie‑Catherine Deschênes, for the respondents
(34466, 34467, 34468)/appellants (34469) Claude Robinson and Les Productions
Nilem inc.
Pierre Y.
Lefebvre and Alain Y. Dussault, for the
appellants (34468)/respondents (34469) Christophe Izard, France Animation S.A.,
Ravensburger Film + TV GmbH and RTV Family Entertainment AG and for the
respondent (34469) Videal Gesellschaft Zur Hertellung Von Audiovisuellen Produkten
MHB.
Guy J.
Pratte, Daniel Urbas and Marc‑André
Grou, for the respondent (34469) Christian Davin.
Raynold
Langlois, Q.C., Dimitri Maniatis, Jean‑Patrick
Dallaire and Fabrice Vil, for the appellants (34467)/respondents
(34469) Ronald A. Weinberg and Ronald A. Weinberg, in his capacity as
sole liquidator of the succession of the late Micheline Charest.
Barry B.
Sookman and Daniel G. C. Glover, for
the intervener Music Canada.
The
judgment of the Court was delivered by
[1]
The Chief
Justice — Canadian law protects
the exclusive right of copyright owners to reproduce or to authorize the
reproduction of their works. The unauthorized reproduction of a substantial
part of an original work constitutes copyright infringement, for which a
copyright owner can seek various remedies. The present appeals require this
Court to determine whether a substantial part of a work has been reproduced, to
examine the role of expert evidence in infringement cases, and to assess
whether the trial judge committed reviewable errors in his award of damages.
[2]
I conclude that copyright was infringed and
would order compensatory damages, disgorgement of profits, and punitive
damages.
I.
Background
[3]
Claude Robinson was a dreamer. He spent years
meticulously crafting an imaginary universe for an educational children’s
television show, “The Adventures of Robinson Curiosity” (“Curiosity”).
Robinson drew his inspiration from Daniel Defoe’s novel Robinson Crusoe,
as well as from his own life experiences. He developed a character ―
Robinson Curiosity ― who lives on a tropical island and must learn to
interact with its other inhabitants. From 1982 onwards, he drew detailed
sketches and storyboards, wrote scripts and synopses, and designed promotional
materials. In October 1985, the Copyright Office issued a registration
certificate identifying Robinson as the author of Curiosity and Les Productions
Nilem inc. (“Nilem”) ― a corporation of which Robinson is the sole director
and shareholder ― as the owner of the rights to the literary work.
[4]
From 1985 to 1987, Robinson and Nilem undertook
various initiatives to get the Curiosity project developed. Of
particular relevance to this appeal, in 1986 Cinar Corporation (“Cinar”) was
retained by one of Robinson’s production partners, Pathonic International Inc.
(“Pathonic”), as a consultant to promote the project in the United States and
to offer general production advice. Ronald Weinberg and his late wife Micheline
Charest, who were directors and officers of Cinar, became involved in the
project. Robinson gave Weinberg and Charest a copy of his Curiosity work.
Ultimately, nothing came of Cinar’s efforts to find financial partners for the
project in the United States.
[5]
In 1987, Robinson partnered with Les Productions
SDA ltée (“SDA”) to produce the television show. Nilem and SDA set up
two corporations, Curious Island Productions Inc. and Curious Island
Enterprises Inc., which they intended to use as vehicles for the production.
[6]
During that same year, Robinson and SDA
participated in a television industry convention held at Cannes, in France. At
this convention, they allegedly gave a presentation on Curiosity to
Christophe Izard, a French creator of children’s television shows.
[7]
Despite the various efforts undertaken by
Robinson and his partners, the project failed to attract investors and stalled.
Curious Island Productions and Curious Island Enterprises were dissolved
on December 12, 1990.
[8]
Robinson shelved his project, but did not forget
about it. In 1995, he explored the possibility of converting his Curiosity
project into interactive educational software for children. However, these
fresh efforts were cut short when, on September 8, 1995, Robinson watched on
television the first episode of a new children’s television show, “Robinson
Sucroë” (“Sucroë”). He was stunned to see that Sucroë, as he
perceived it, was a blatant copy of Curiosity.
[9]
In Robinson’s view, the characters and
environment depicted in Sucroë closely tracked his work. Like Curiosity,
Sucroë features a bearded, Robinson Crusoe-inspired protagonist who
wears glasses and a straw hat. In both works, the protagonist lives on an
island and interacts with other characters. There are however notable
differences between the works. Many of the “side-kicks” in Curiosity are
animals, whereas in Sucroë they are predominantly humans. Also, Sucroë,
unlike Curiosity, features a band of marauding pirates as
“villains”.
[10]
Robinson discovered that several parties who had
been given access to his Curiosity project, namely Cinar, Weinberg,
Charest, and Izard, were also involved in the production of Sucroë. He
concluded that Sucroë was not an independent creation, but rather had
been developed by copying Curiosity. He and Nilem commenced an action
for copyright infringement against Cinar, Weinberg, Charest, Izard, and various
co-producers and distributors of Sucroë. They also claimed damages under
the rules of extra-contractual liability, contending that Cinar, Weinberg, and
Charest had breached their obligations of good faith and loyalty under the
contract for services that they concluded with Pathonic, and that in doing so
they knowingly caused damages to Robinson and Nilem.
[11]
The trial lasted 83 days and resulted in the
production of a voluminous evidentiary record. After considering the testimony
of over 40 witnesses and 4 experts, as well as extensive documentary and
audio-visual evidence, the trial judge concluded that Robinson’s Curiosity was
an original work protected by copyright, that the creators of Sucroë had
copied Curiosity, and that the features reproduced in Sucroë represented
a substantial part of Curiosity. He found that Cinar, Weinberg,
Charest, Izard, France Animation S.A., Ravensburger Film + TV GmbH and RTV
Family Entertainment AG (collectively referred to as the “Cinar appellants” in
these reasons) were liable for infringement of copyright. He also held
Christian Davin, the chief executive officer of France Animation at the
relevant time, personally liable for the infringement. Finally, the trial judge
found that Cinar, Weinberg, and Charest were extra-contractually liable towards
Robinson and Nilem for having violated their obligations of good faith and of
loyalty: 2009 QCCS 3793, [2009] R.J.Q. 2261.
[12]
The trial judge awarded damages on a solidary
basis (the equivalent of “joint and several” liability in the common law) and
costs in the amount of $5,224,293: $607,489 in compensatory damages for
Robinson’s pecuniary losses stemming from the infringement; $1,716,804 to disgorge
the profits earned as a result of the infringement; $400,000 for the
psychological harm suffered by Robinson; $1,000,000 in punitive damages; and
$1,500,000 for costs on a solicitor-client basis.
[13]
The Court of Appeal upheld the trial judge’s
findings on infringement. It confirmed the trial judge’s findings of personal
liability for copyright infringement, except for Davin, against whom the
evidence was insufficient in its view: 2011 QCCA 1361, 108 C.P.R. (4th) 165.
[14]
The Court of Appeal upheld the trial judge’s
award of compensatory damages for Robinson’s pecuniary losses, subject to a
minor mathematical correction. It rejected the trial judge’s order for
disgorgement of profits against Weinberg, Charest, and Izard because those
profits were retained by corporations. It also ordered disgorgement on a joint
basis (the equivalent of “several” liability in the common law) rather than
solidarily. In addition, the Court of Appeal excluded amounts incorrectly
included by the trial judge in the calculation of profits, reducing the amount
to be disgorged.
[15]
The Court of Appeal held that the cap
established in the Andrews trilogy (Andrews v. Grand & Toy
Alberta Ltd., [1978] 2 S.C.R. 229, Thornton v. School District No. 57
(Prince George), [1978] 2 S.C.R. 267, and Arnold v. Teno, [1978] 2
S.C.R. 287) was applicable to the award for psychological suffering and reduced
the award to $121,350, which represents 50 percent of the cap’s value at the
date of the summons.
[16]
The Court of Appeal reduced the award for
punitive damages from $1,000,000 to $250,000, on the ground that punitive
damages in Quebec must be moderate, and held that they could not be awarded on
a solidary basis. It held Cinar liable for $100,000 in punitive damages, and
each of Weinberg, Charest, and Izard liable for $50,000.
[17]
The Court of Appeal held that interest and the additional
indemnity (arts. 1618 and 1619 of the Civil Code of Québec, S.Q. 1991,
c. 64 (“CCQ”)) on the award of compensatory damages should be computed
as of July 16, 1996, and as of July 1, 2001, for the award of profits. It also
affirmed the trial judge’s award of $1,500,000 for costs on a solicitor-client
basis, but declined to award additional costs on a solicitor-client basis for
the appeal.
[18]
Four appeals have been brought from the Court of
Appeal’s judgment (in files 34466, 34467, 34468, and 34469). The Cinar
appellants appeal the finding of liability for infringement. Robinson and
Nilem appeal the reduction in damages and disgorgement of profits ordered by
the Court of Appeal.
II.
Issues
[19]
The appeals raise a number of issues, which I
will address as follows:
A. The Standing of Robinson and Nilem
B. The Infringement of Copyright
C. The Personal Liability of Weinberg, Charest, and Davin for
Infringement
D. The Extra-contractual Liability of Cinar, Weinberg, and
Charest
E. Disgorgement of Profits
F. Non-pecuniary Damages
G. Punitive Damages
III.
Analysis
A.
The Standing of Robinson and Nilem
[20]
The appellant Weinberg argues that neither
Robinson nor Nilem has standing to bring an action for copyright infringement
because Robinson assigned all of his rights in Curiosity to Nilem, and
Nilem thereafter assigned those rights to Curious Island Enterprises. He argues
that, as a result of these assignments, neither Robinson nor Nilem retains any
rights in Curiosity.
[21]
Weinberg bears the burden of proving the loss of
copyright: s. 34.1 of the Copyright Act, R.S.C. 1985, c. C-42 (“Copyright
Act ” or “Act”) (s. 34 at the time this action was commenced); Massie
& Renwick Ltd. v. Underwriters’ Survey Bureau Ltd., [1940] S.C.R. 218,
at pp. 233-34. In my view, he has failed to discharge this burden. On the
record before this Court, I would not interfere with the conclusion of the
courts below that Robinson and Nilem were co-owners of the rights to Curiosity.
And I agree with the courts below that any rights transferred by Nilem to
Curious Island Enterprises reverted to Nilem. The 1987 shareholders’ agreement
by which Nilem transferred its rights to Curious Island Enterprises contained a
resolutory clause pursuant to which the rights would revert back to Nilem if
Curious Island Enterprises was dissolved, and Curious Island Enterprises was
indeed dissolved on December 12, 1990.
[22]
Consequently, Robinson and Nilem have standing
to bring their action.
B.
The Infringement of Copyright
(1)
The Scope of the Protection Afforded by the Copyright
Act
[23]
The Copyright Act strikes “a balance
between promoting the public interest in the encouragement and dissemination of
works of the arts and intellect and obtaining a just reward for the creator”: Théberge
v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336,
at para. 30; see also Society of Composers, Authors and Music
Publishers of Canada v. Bell Canada, 2012 SCC 36, [2012] 2 S.C.R. 326, at
paras. 8-11; Entertainment Software Association v. Society of Composers,
Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 S.C.R. 231,
at paras. 7-8; Rogers Communications Inc. v. Society of Composers, Authors
and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at para.
40. It seeks to ensure that an author will reap the benefits
of his efforts, in order to incentivize the creation of new works. However, it
does not give the author a monopoly over ideas or elements from the public
domain, which all are free to draw upon for their own works. For example, “[t]he general stock of incidents in fiction or drama is free for
all to use ― a substantial part of everyone’s culture, not of any one
individual’s work”: D. Vaver, Intellectual Property Law: Copyright, Patents,
Trade-marks (2nd ed. 2011), at p. 182.
[24]
The Act protects original literary,
dramatic, musical, and artistic works: s. 5. It protects the expression of
ideas in these works, rather than ideas in and of themselves: CCH Canadian
Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339, at
para. 8. An original work is the expression of an idea through an exercise of
skill and judgment: CCH, at para. 16. Infringement consists of the
unauthorized taking of that originality.
[25]
However, the Act does not protect every
“particle” of an original work, “any little piece the taking of which cannot
affect the value of [the] work as a whole”: Vaver, at
p. 182. Section 3 of the Copyright Act provides that the copyright owner
has the sole right to reproduce “the work or any substantial part thereof”.
[26]
A substantial part of a work is a flexible notion.
It is a matter of fact and degree. “Whether a part is substantial must be
decided by its quality rather than its quantity”: Ladbroke (Football), Ltd.
v. William Hill (Football), Ltd., [1964] 1 All E.R. 465 (H.L.), at p. 481, per
Lord Pearce. What constitutes a substantial part is determined in relation
to the originality of the work that warrants the protection of the Copyright
Act . As a general proposition, a substantial part of a work is a part of
the work that represents a substantial portion of the author’s skill and
judgment expressed therein.
[27]
A substantial part of a work is not limited to
the words on the page or the brushstrokes on the canvas. The Act protects
authors against both literal and non-literal copying, so long as the copied
material forms a substantial part of the infringed work. As the House of Lords
put it,
the “part” which is regarded
as substantial can be a feature or combination of features of the work,
abstracted from it rather than forming a discrete part. . . . [T]he original
elements in the plot of a play or novel may be a substantial part, so that
copyright may be infringed by a work which does not reproduce a single sentence
of the original.
(Designers
Guild Ltd. v. Russell Williams (Textiles) Ltd., [2001] 1 All E.R. 700, at
p. 706, per Lord Hoffmann; see also Nichols v. Universal Pictures
Corporation, 45 F.2d 119 (2d Cir. 1930), per Learned Hand J.)
[28]
The need to strike an appropriate balance
between giving protection to the skill and judgment exercised by authors in the
expression of their ideas, on the one hand, and leaving ideas and elements from
the public domain free for all to draw upon, on the other, forms the background
against which the arguments of the parties must be considered.
(2)
The Issue on Appeal
[29]
The Cinar appellants no longer contest the trial
judge’s findings that Robinson’s work as a whole was original, that several of
the appellants had access to the work, and that Sucroë and Curiosity
share common features. Rather, they argue that the trial judge made
several errors in his assessment of whether a substantial part of Curiosity is
reproduced in Sucroë, giving rise to a remedy for copyright
infringement.
(3)
The Standard of Review
[30]
The conclusion of the trial judge that a
substantial part of a plaintiff’s work was copied is entitled to appellate
deference. The issue of substantiality is one of mixed fact and law.
Consequently, an appellate court should generally defer to the trial judge’s
findings on substantiality, unless those findings are based on an error of law
or palpable and overriding errors of fact: Housen v. Nikolaisen, 2002
SCC 33, [2002] 2 S.C.R. 235; Designers Guild, at p. 707, per Lord Hoffman, and p.
708, per Lord Millett; Baigent v. The Random House Group Ltd.,
[2007] EWCA Civ 247, [2007] F.S.R. 24, at paras. 125-26; Delrina Corp. v.
Triolet Systems Inc. (2002), 58 O.R. (3d) 339 (C.A.), at para. 81; Vaver, at p. 182.
(4)
Did the Trial Judge Err in Finding That a
Substantial Part of Robinson’s Work Was Reproduced in Sucroë?
[31]
The trial judge, upheld by the Court of Appeal,
found that the Cinar appellants infringed Robinson’s copyright by copying a
substantial part of his original work without his or Nilem’s authorization: see
ss. 3(1) and 27(1) of the Copyright Act .
[32]
The Cinar appellants contend that the trial
judge (a) failed to follow the correct approach to assessing substantiality;
(b) failed to give sufficient weight to the significant differences between Sucroë
and Curiosity; (c) made an error in finding that the features of Curiosity
reproduced in Sucroë were protected by the Copyright Act ; and
(d) based his findings on inadmissible expert evidence. I will address each of
these arguments in turn.
(a)
Did the Trial Judge Fail to Follow the Correct
Approach to Assessing Whether a “Substantial Part” of a Work Was Reproduced?
[33]
The trial judge found that the Cinar appellants
copied a number of features from Robinson’s Curiosity, including the
visual appearance of the main protagonist, the personality traits of the main
protagonist and of other characters, visual aspects of the setting, and
recurring scenographic elements. He concluded that, considered as a whole, the
copied features constituted a substantial part of Robinson’s work.
[34]
The Cinar appellants argue that instead of
applying a holistic approach, the trial judge should have applied a three-step
approach requiring him to (1) determine what elements of Curiosity were
original, within the meaning of the Copyright Act ; (2) exclude
non-protectable features of Robinson’s work (such as ideas, elements drawn from
the public domain, and generic elements commonplace in children’s television
shows); and (3) compare what remains of Curiosity after this
“weeding-out” process to Sucroë, and determine whether a substantial part
of Curiosity was reproduced.
[35]
The approach proposed by the Cinar appellants is
similar to the “abstraction-filtration-comparison” approach used to assess
substantiality in the context of computer software infringement in the United
States: see Computer Associates International, Inc. v. Altai, Inc., 982
F.2d 693 (2d Cir. 1992); B. Clermont, “Les compilations
et la Loi sur le droit d’auteur : leur protection et leur création”
(2006), 18 C.P.I. 219, at p. 237; B. Tarantino, “‘I’ve Got This Great
Idea for a Show. . .’ ― Copyright Protection for Television Show and
Motion Picture Concepts and Proposals” (2004), 17 I.P.J. 189, at pp.
199-200. It has been discussed, though not formally adopted, in Canadian
jurisprudence: Delrina Corp., at paras. 43-47. I do not exclude the possibility that such an
approach might be useful in deciding whether a substantial part of some works,
for example computer programs, has been copied. But many types of works do not
lend themselves to a reductive analysis. Canadian courts have generally adopted
a qualitative and holistic approach to assessing substantiality. “The character
of the works will be looked at, and the court will in all cases look, not at
isolated passages, but at the two works as a whole to see whether the use
by the defendant has unduly interfered with the plaintiff’s right”: J. S. McKeown,
Fox on Canadian Law of Copyright and Industrial Designs (loose-leaf), at
p. 21-16.4 (emphasis added).
[36]
As a general matter, it
is important to not conduct the substantiality analysis by dealing with the
copied features piecemeal: Designers Guild, at p. 705, per Lord Hoffman. The approach proposed
by the Cinar appellants would risk dissecting Robinson’s work into its
component parts. The “abstraction” of Robinson’s work to the essence of what
makes it original and the exclusion of non-protectable elements at the
outset of the analysis would prevent a truly holistic assessment. This
approach focuses unduly on whether each of the parts of Robinson’s work is individually
original and protected by copyright law. Rather, the cumulative effect of
the features copied from the work must be considered, to determine whether
those features amount to a substantial part of Robinson’s skill and
judgment expressed in his work as a whole.
[37]
I thus conclude that the trial judge did not err
by failing to follow the three-step approach advocated by the Cinar appellants.
(b)
Did the Trial Judge Fail to Give Sufficient
Weight to the Differences Between Sucroë and Curiosity?
[38]
The Cinar appellants contend that the trial
judge focused almost exclusively on the similarities between Sucroë and Curiosity,
and failed to consider the differences between the works. They point to
significant differences between the works: the secondary characters in Sucroë
are humans, whereas in Curiosity several of those characters are
animals; Sucroë prominently features as its “villains” a band of
marauding pirates, whereas Curiosity does not seem to have any villains;
and the protagonist in Sucroë is not particularly curious, whereas
curiosity is the dominant personality trait of the protagonist in Curiosity.
[39]
The question of whether there has been
substantial copying focuses on whether the copied features constitute a
substantial part of the plaintiff’s work ― not whether they amount
to a substantial part of the defendant’s work: Vaver, at p. 186; E. F.
Judge and D. J. Gervais, Intellectual Property: The Law in Canada (2nd
ed. 2011), at p. 211. The alteration of copied features or their integration
into a work that is notably different from the plaintiff’s work does not
necessarily preclude a claim that a substantial part of a work has been copied.
As the Copyright Act states, infringement includes “any
colourable imitation” of a work: definition of “infringing”, s. 2 .
[40]
This is not to say that differences are irrelevant to the
substantiality analysis. If the differences are so great that the work, viewed
as a whole, is not an imitation but rather a new and original work, then there
is no infringement. As the Court of Appeal put it, “the differences may have
no impact if the borrowing remains substantial. Conversely, the result may
also be a novel and original work simply inspired by the first. Everything is
therefore a matter of nuance, degree, and context” (para. 66).
[41]
The trial judge engaged in a qualitative and
holistic assessment of the similarities between the works, which took into
account the relevant similarities and differences between the works. For
example, he gave little weight to similarities that were due to the generic
island setting of both works: the fact that beaches, luxuriant vegetation, and
bananas are present in both works was, at best, a “minor” similarity (paras. 621 and 631). He also gave little weight to the alleged
similarities between Gladys, a female character in Sucroë, and Gertrude,
a character in Curiosity (paras. 577-81). He examined whether Robinson
Sucroë could be said to be as curious as Robinson Curiosity, and recognized
that curiosity was a less predominant personality trait in Sucroë than it was
in Curiosity (paras. 529-31). He concluded that, despite any differences
between the works, it was still possible to identify in Sucroë features
copied from Curiosity and that these features constituted a substantial
part of Robinson’s work. The trial judge did not err in approaching the matter
in this way.
(c)
Did the Trial Judge Err in Finding That the
Features of Curiosity Reproduced in Sucroë Are Protected by the Copyright Act ?
[42]
The Cinar appellants contend that, by failing to
follow their three-step approach and to give sufficient weight to differences
between the works, the trial judge characterized as a substantial part of the
work a series of features that are not protected by copyright law. They argue
that, at most, Sucroë reproduced the ideas embodied in Curiosity,
elements drawn from the public domain (such as the protagonist of Daniel
Defoe’s nearly 300-year-old novel), and other elements that are not original
within the meaning of the Copyright Act .
[43]
I turn first to the argument that Sucroë
merely reproduced the idea of a children’s television show about a Robinson
Crusoe-inspired character living on a tropical island, as opposed to
Robinson’s expression of that idea. I cannot accept this contention.
The trial judge clearly grounded his finding of copying of a substantial part
not in the idea behind Curiosity, but in the way Robinson expressed that
idea. He concluded that the overall architecture of Robinson’s submission for a
television show was copied. He found that the graphic appearance and several
aspects of the personality of Curiosity’s protagonist were copied; the
personalities of the secondary characters that gravitate around Curiosity’s
protagonist were copied; and the graphic appearance of the makeshift village
that these characters inhabit was also copied in part (paras. 685 and 824-26).
These findings are not confined to the reproduction of an abstract idea; they
focus on the detailed manner in which Robinson’s ideas were expressed.
[44]
This leaves the second argument ― the
suggestion that to the extent that the characters and setting of Sucroë
replicated those found in Curiosity, these are generic elements
that are not protected by copyright law. The story of a man marooned on an
island interacting with animals, native inhabitants, and the environment is
archetypal and has been reproduced for centuries, the Cinar appellants assert.
[45]
Again, the trial judge’s findings refute this
contention. He found that Curiosity was an original work, within the
meaning of the Copyright Act . He based this not on the generic
nature of the characters, but on their distinct visual appearance and
particular personalities, which were the product of Robinson’s skill and
judgment. Nor was Curiosity’s island an entirely generic island; the
trial judge cited particular visual elements of the setting that Robinson had
conceived and that the Cinar appellants had copied.
[46]
The development of a group of characters that
have specific personality traits and whose interactions hinge on those
personalities can require an exercise of skill and judgment sufficient to
satisfy the Copyright Act ’s originality criterion: see for example Productions
Avanti Ciné-Vidéo Inc. v. Favreau (1999), 177 D.L.R. (4th) 568 (Que. C.A.),
leave to appeal refused, [2000] 1 S.C.R. xi. Sucroë reproduces more than
generic elements which all are free to draw upon for inspiration. It reproduces
Curiosity’s particular combination of characters with distinct
personality traits, living together and interacting on a tropical island
― elements that represent a substantial part of the skill and judgment
expressed in Curiosity.
[47]
In essence, the aspects of the trial judge’s
reasons that the Cinar appellants take issue with are findings of mixed fact
and law. They invite this Court to embark on a fresh assessment of the features
copied from Curiosity. I would decline to do so. They have failed to
demonstrate palpable or overriding errors in the trial judge’s findings on
substantiality.
(d)
Did the Trial Judge Err by Relying on
Inadmissible Expert Evidence?
[48]
The Cinar appellants argue that the trial judge
based the bulk of his findings regarding substantial copying on inadmissible
expert evidence ― the evidence of a semiologist, Dr. Charles Perraton.
Semiology is the study of signs and symbols and how they convey meaning. Dr.
Perraton offered evidence that, quite apart from the surface meaning of the
works at issue, there were latent similarities in how the two works used
atmosphere, dynamics, motifs, symbols, and structure to convey meaning. The
trial judge relied on this evidence in concluding that the Cinar appellants had
copied a substantial part of Robinson’s work.
[49]
For expert evidence to be admitted at trial, it
must (a) be relevant; (b) be necessary to assist the trier of fact; (c) not
offend any exclusionary rule; and (d) involve a properly qualified expert: R.
v. Mohan, [1994] 2 S.C.R. 9. These criteria apply to trials for copyright
infringement, as they do in other intellectual property cases: Masterpiece
Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, [2011] 2 S.C.R.
387, at para. 75.
[50]
The Cinar appellants argue that the second
criterion ― necessity of the evidence ― is not met in the case at
hand. The expert evidence was not necessary to assist the court, they say,
because the question of whether a substantial part has been copied must be
assessed from the perspective of the lay person in the intended audience for
the works at issue: see Preston v. 20th Century Fox
Canada Ltd. (1990), 33 C.P.R. (3d) 242 (F.C.T.D.), aff’d (1993), 53 C.P.R.
(3d) 407 (F.C.A.); Arbique v. Gabriele, [1998] J.Q. no 3794
(QL) (Sup. Ct.), aff’d 2003 CanLII 16298 (Que. C.A.). They argue that trial
judges are well placed to understand a lay person’s point of view and that the
assistance of an expert is unnecessary to help them grasp this perspective.
[51]
In my view, the perspective of a lay person in
the intended audience for the works at issue is a useful one. It has the merit
of keeping the analysis of similarities concrete and grounded in the works
themselves, rather than in esoteric theories about the works. However, the
question always remains whether a substantial part of the plaintiff’s work was
copied. This question should be answered from the
perspective of a person whose senses and knowledge allow him or her to fully
assess and appreciate all relevant aspects ― patent and latent ― of
the works at issue. In some cases, it may be necessary to go beyond the
perspective of a lay person in the intended audience for the work, and to call
upon an expert to place the trial judge in the shoes of
“someone reasonably versed in the relevant art or technology”: Vaver, at p.
187.
[52]
To take an example, two pieces of classical
music may, to the untrained ear, sound different, perhaps because they are
played on different instruments, or at different tempos. An expert musician,
however, might see similarities suggesting a substantial part has been copied
― the same key signature, the same arrangement of the notes in recurring
passages, or a recurrent and unusual harmonic chord. It will be for the judge
to determine whether the similarities establish copying of a substantial part,
to be sure. But in making that determination, the judge may need to consider
not only how the work sounds to the lay person in the intended audience, but
also structural similarities that only an expert can detect.
[53]
In the present case, the necessity criterion of
the test for the admissibility of expert evidence is satisfied. First, the
works at issue are intended for an audience of young children. A rigid
application of the “lay person in the intended audience” standard would unduly
restrict the court’s ability to answer the central question, namely whether a
substantial part of Robinson’s work was copied. It would shift the question to
whether the copied features are apparent to a five-year-old.
[54]
Second, the nature of the works at issue makes
them difficult to compare. The trial judge was faced
with the task of comparing a sprawling unrealized submission for a television
show to a finished product that had aired on television. These are not works that are easily amenable to a side-by-side
visual comparison conducted by a judge without the assistance of an expert.
[55]
Finally, the works at issue had both patent and
latent similarities. Or, as Dr. Perraton explained it, they shared
“perceptible” and “intelligible” similarities. “Perceptible” similarities are
those that can be directly observed, whereas “intelligible” similarities
― such as atmosphere, dynamics, motifs, and
structure ― affect a viewer’s experience of the work indirectly. Expert
evidence was necessary to assist the trial judge in distilling and comparing
the “intelligible” aspects of the works at issue, which he would not otherwise
appreciate. Consequently, the trial judge did not err in admitting the expert
evidence of Dr. Perraton.
(5)
Conclusion
[56]
The Cinar appellants have failed to establish
that the trial judge erred in concluding that they copied a substantial part of
Robinson’s work.
C.
The Personal Liability of Weinberg, Charest, and
Davin for Infringement
[57]
France Animation, Cinar, Ravensburger, and RTV
Family Entertainment no longer argue that they cannot be found liable in their
capacity as producers of Sucroë. Nor does Izard argue that he cannot be
found liable in his personal capacity. However, Weinberg, Charest, and Davin
contend that they cannot be found personally liable for copyright infringement.
(1)
Weinberg and Charest
[58]
The trial judge found that Weinberg and Charest
were personally liable for the infringement of Robinson’s copyright, since they
deliberately and knowingly engaged in the infringement.
[59]
Weinberg argues that Robinson failed to
establish on a balance of probabilities that he and Charest knowingly engaged
in copyright infringement, contending that they had little direct involvement
in the creative process of Sucroë.
[60]
For a director and/or officer to be held liable
for his or her company’s infringement of a copyright, “there must be
circumstances from which it is reasonable to conclude that the purpose of the
director or officer was not the direction of the manufacturing and selling
activity of the company in the ordinary course of his relationship to it but
the deliberate, wilful and knowing pursuit of a course of conduct that was
likely to constitute infringement or reflected an indifference to the risk of
it”: Mentmore Manufacturing Co. v. National Merchandising Manufacturing Co.
(1978), 89 D.L.R. (3d) 195 (F.C.A.), at pp. 204-5, per Le Dain J.
[61]
The trial judge concluded from the whole of the
evidence that Weinberg and Charest deliberately, wilfully, and knowingly
infringed Robinson’s copyright. This conclusion was supported by the evidence.
The trial judge accepted testimony to the effect that Weinberg and Charest
personally had access to and actively consulted Robinson’s drawings during the
development of Sucroë (paras. 786-99). He drew adverse inferences from
Weinberg and Charest’s persistent denials that they had access to Robinson’s
work, despite the fact that they were given copies of the work and even made
comments on it in the course of their consultations with Pathonic (paras. 254-58).
The findings of personal liability are supported by the evidence and should not
be set aside.
(2)
Davin
[62]
The trial judge found Davin, the chief executive
officer of France Animation at the relevant time, personally liable for
copyright infringement. He relied on evidence that Davin was involved in
schemes orchestrated by Cinar in order to fraudulently obtain royalties and
government subsidies, and noted that Davin was the hierarchical superior of
Izard, who was personally involved in the copying of Robinson’s work. The Court
of Appeal overturned this finding of personal liability on the ground that it
was not supported by the evidence. I agree with the Court of Appeal’s
conclusion.
[63]
The trial judge established Davin’s liability by
presumption, i.e. by the inductive process of inferring an unknown fact
(Davin’s personal participation in copyright infringement) from known facts
(Davin’s hierarchical position within France Animation and his participation in
other fraudulent schemes): art. 2846 CCQ. Courts may only rely on
presumptions that are “serious, precise and concordant”: art. 2849 CCQ;
see also Longpré v. Thériault, [1979] C.A. 258, at p. 262.
[64]
The evidence relied upon by the trial judge did
not support a serious, precise and concordant presumption that Davin was
personally, deliberately and knowingly involved in the copying of Robinson’s
work, as required by Mentmore. The trial judge inferred Davin’s knowing
and deliberate participation from general circumstantial evidence. He observed
that Davin was a [translation]
“Teflon man” who had participated in fraudulent schemes (para. 835). However,
these schemes were unrelated to the copying of Robinson’s work. Evidence of a
dishonest and arrogant personality does not suffice to ground an inference of
participation in copyright infringement. He also relied on Davin’s position as
Izard’s hierarchical superior. Yet, this alone does not establish personal
participation in copyright infringement. An officer of a corporation cannot be
held personally liable for copyright infringement merely on the basis of his
hierarchical status as officer.
[65]
Robinson also argues that Davin “authorized” the
copying of Robinson’s work, within the meaning of s. 3 of the Copyright Act .
“Under s. 27(1) of the Copyright Act , it is an infringement of copyright
for anyone to do anything that the Act only allows owners to do, including
authorizing the exercise of his or her own rights”: CCH, at para.
37. As stated in CCH:
“Authorize”
means to “sanction, approve and countenance” . . . . Countenance in the context
of authorizing copyright infringement must be understood in its strongest
dictionary meaning, namely “[g]ive approval to; sanction, permit; favour,
encourage” . . . . Authorization is a question of fact that depends on the
circumstances of each particular case and can be inferred from acts that are
less than direct and positive, including a sufficient degree of indifference .
. . . [References omitted; para. 38.]
[66]
There is no evidence that Davin actively or
passively authorized the copying of Robinson’s work in this sense. Indeed, the
record fails to establish that Davin even knew or should have known that Sucroë
was developed by copying Robinson’s work.
[67]
Finally, Robinson argues that Davin is liable as
a producer of Sucroë. His name appears as [translation] “executive producer” in the show’s credits in
Canada, and as “producteur délégué” in France. This alone is
insufficient to hold Davin personally liable. As executive producer, he was
acting as an officer of France Animation. It is France Animation, as a
corporate entity distinct from its directors and officers, that reproduced a
substantial part of Robinson’s work by commissioning and commercializing Sucroë.
As the Court of Appeal correctly noted, various contracts establish that it is
France Animation and its co-producers, Cinar and Ravensburger, who hired the
production staff and assumed financial as well as artistic responsibility for
the production of Sucroë (para. 141).
[68]
I accordingly agree with the Court of Appeal
that Davin cannot be held personally liable for copyright infringement on any
of the grounds argued by Robinson.
D.
The Extra-contractual Liability of Cinar,
Weinberg, and Charest
[69]
Having concluded that Cinar, Weinberg, and
Charest are liable for copyright infringement, it is unnecessary to examine
whether they can be found liable under Quebec’s regime of extra-contractual
liability. This form of liability was only argued in the alternative by
Robinson and Nilem.
E.
Disgorgement of Profits
[70]
Pursuant to s. 35 of the Copyright Act ,
the trial judge awarded both compensatory damages to account for Robinson’s
losses (including non-pecuniary damages, discussed below) and 50 percent of the
profits made by the infringers, against all the Cinar appellants, on a solidary
basis.
[71]
The Court of Appeal took issue with the trial
judge’s award of profits and made several corrections. First, it excluded
$1,117,816 in profits derived from Sucroë’s soundtrack, on the ground
that there was no causal link between the infringement and the soundtrack.
Second, it found that the trial judge erred in characterizing a payment of
$684,000 from Ravensburger to France Animation (the “Ravensburger amount”) as
revenue, and excluded the amount from the calculation of profits. Third, it
found that a payment of $1,111,201 made by Cinar to a partnership called Jaffa
Road (the “Jaffa Road amount”) should have been characterized as an expense and
deducted from the calculation of profits. Fourth, it held that only the
corporate defendants should have been ordered to disgorge profits, and that
under s. 35 of the Copyright Act profits can only be ordered
disgorged on a joint basis. Finally, it modified the date from which to
calculate interest and the additional indemnity on the award of profits.
[72]
Having concluded that under s. 35 of the Copyright
Act profits cannot be disgorged on a solidary basis, the Court of Appeal
apportioned the total amount of profits between France Animation (60 percent),
Ravensburger (15 percent), and Cinar (25 percent).
[73]
Robinson and Nilem now seek to have the trial
judge’s entire award of profits reinstated. No appeal is brought against the
award of compensatory damages ordered by the trial judge under s. 35 of the Copyright
Act for Robinson’s pecuniary losses.
[74]
The trial judge refused to order an accounting
of profits, a decision which has not been appealed. Instead, he calculated the
net profits made from Sucroë on the basis of documentary evidence
produced by the parties. As a result, this Court does not have the benefit of
the type of detailed record that typically results from a taking of accounts,
and must confine itself to the trial judge’s findings of fact and the
documentary evidence on the record before it.
[75]
I will deal in turn with each of the alleged
defects in the trial judge’s award of profits.
(1)
Profits From the Sucroë Soundtrack
[76]
The soundtrack to Sucroë is the result of
an independent creative process. It was not copied from Robinson’s work, but
rather was incorporated into the materials that were copied. Robinson argues
that there is nevertheless a causal link between the infringement and the
profits derived from the soundtrack. In his view, the soundtrack is an
inextricable component of a television show that was created through a process
of copyright infringement. The Cinar appellants, for their part, argue that
since the soundtrack results from independent creation, there can be no causal
link between the infringement and the profits related to musical rights.
[77]
Section 35 of the Copyright Act provides
that a defendant can be ordered to “disgorge its profit to the extent that
such profit is caused by the infringement. The requirement for a [causal]
link between infringement and profit may require that the profit be apportioned
between that which is attributable to the infringement and that which is not”:
McKeown, at p. 24-82.3 (emphasis added). The onus is on the infringer to
“satisfactorily separate non-infringing from infringing activities”: Vaver, at
p. 653; Sheldon v. Metro-Goldwyn Pictures Corporation, 106 F.2d 45 (2d
Cir. 1939), per Learned Hand J. In some cases, “an infringer may so
interweave the right-holder’s work with its own as to make separation
impossible”: Vaver, at p. 637.
[78]
The apportionment of profits between infringing
and non-infringing components of a work is essentially a factual determination
which is subject to judicial discretion: Wellcome Foundation Ltd. v. Apotex
Inc., [2001] 2 F.C. 618 (C.A.), at para. 23; Lubrizol Corp. v. Imperial
Oil Ltd., [1997] 2 F.C. 3 (C.A.), at para. 9. An appellate court may only
disturb the trial judge’s findings on apportionment if there are errors of law
or palpable and overriding errors of fact (Housen).
[79]
In the case at hand, the trial judge found that [translation] “the music revenues cannot
be disassociated from the overall . . . work” (para. 1016). The Court of Appeal
disagreed and asked itself what profits would have been generated if the
soundtrack had been commercialized as a separate product, independently of the
infringing material (para. 196). It relied on the “differential profit” approach
used in patent infringement cases, in which a comparison is made “between the
defendant’s profit attributable to the invention and his profit had he used the
best non-infringing option”: Monsanto Canada Inc. v. Schmeiser, 2004 SCC
34, [2004] 1 S.C.R. 902, at para. 102.
[80]
In my view, the Court of Appeal erred by
interfering with the trial judge’s conclusion that the profits stemming from
the soundtrack could not be dissociated from the profits derived from the
infringing material. The “differential profit” approach on which the Court of
Appeal relied is generally used in cases where an infringement allows the
infringer to commercialize a good in a more profitable manner than he could
have without the infringement. However, there is no evidence that the soundtrack
could have been commercialized as a separate product if Curiosity had
not been infringed in the first place. The soundtrack was only commercialized
as a component of the television show Sucroë, which was itself created
by copying a substantial part of Robinson’s work. The trial judge was entitled
to conclude that the soundtrack had no stand-alone value, and that it generated
profits only as an accessory to the television show. Consequently, he did not
make a reviewable error in concluding that it was inappropriate to apportion
profits to the soundtrack as a non-infringing component of the work.
(2)
The Ravensburger Amount
[81]
The Ravensburger amount represents $684,000 that
Ravensburger paid to France Animation. The trial judge characterized this as a
form of revenue stemming from Sucroë. I agree with the Court of Appeal
that this characterization constitutes a palpable and overriding error.
[82]
The trial judge calculated the net profits
stemming from Sucroë on a global basis, taking into account the revenue and
expenses of all the co-producers. However, he treated the Ravensburger amount
in isolation, looking only to the fact that it constituted a form of revenue
for one of the co-producers, France Animation. This treatment of the
Ravensburger amount was inconsistent with the global approach adopted
elsewhere. The amount also represented an outlay of capital for another
co-producer, Ravensburger. It was a contribution by Ravensburger to the
financing of Sucroë, and its net effect was simply to partially shift the
burden of the production expenses from France Animation to Ravensburger. The
amount did not constitute a form of revenue for the group of co-producers
taken as a whole. The Court of Appeal was correct to remove this amount
from the revenues taken into account when calculating the profits generated by
Sucroë.
(3)
The Jaffa Road Amount
[83]
Pursuant to a distribution agreement, Cinar sold
an interest in Sucroë to Jaffa Road for $1,853,333. It is not contested
that this amount was collected by Cinar and constitutes revenue stemming from Sucroë.
In a later agreement, Jaffa Road transferred back to Cinar the distribution
rights for Canada and the United States. That agreement provided that a minimum
payment of $1,111,201 as part of a “revenue guarantee” would be due unconditionally
by Cinar about a year after the execution of the agreement. The trial judge did
not characterize this amount as an expense incurred by Cinar, whereas the Court
of Appeal did.
[84]
The substance of the trial judge’s finding was
that the Cinar appellants had not proven the actual occurrence of a transfer of
$1,111,201 from Cinar to Jaffa Road (para. 1022). The document submitted to
establish this payment provided only for a “revenue guarantee” to be paid a
year from the moment of execution. No evidence was tendered to demonstrate that
this guarantee was executed when it actually became due. The trial judge was
entitled to conclude that this document did not constitute proof of payment of
the amount. Contrary to the suggestion of the Court of Appeal, he had no
obligation to take this evidence at face value. Consequently, I would not
deduct this amount as an expense when calculating the profits from Sucroë.
(4)
Ordering Disgorgement Against All Infringers on
a Solidary Basis
[85]
The trial judge ordered disgorgement against all
the parties that he found liable for infringement on a solidary basis. The
Court of Appeal held that this misconstrued the disgorgement remedy under s. 35
of the Copyright Act . It held that a defendant can only be made to
disgorge profits that it made, as opposed to the profits of other defendants
with whom it participated in an infringement.
[86]
I agree with the Court of Appeal. Section 35 of
the Copyright Act provides a dual remedy for copyright infringement:
damages for the plaintiff’s losses and disgorgement of the profits retained by
the defendant. Disgorgement of profits under s. 35 is designed mainly to
prevent unjust enrichment, although it can also serve a secondary purpose of
deterrence: Vaver, at p. 650. It is not intended to compensate the plaintiff.
This remedy is not subject to the principles that govern general damages
awarded under Quebec’s law of extra-contractual liability, whose aim is
compensatory. Consequently, solidarity of profits ordered disgorged under s. 35
of the Copyright Act cannot be inferred from art. 1526 of the CCQ,
which makes co-authors of a fault solidarily liable for the “obligation to make
reparation for injury caused to another”.
[87]
Disgorgement under s. 35 of the Copyright Act
goes no further than is necessary to prevent each individual defendant from
retaining a wrongful gain. Defendants cannot be held liable for the gains of
co-defendants by imposing liability for disgorgement on a solidary basis.
[88]
For the same reasons, Weinberg, Charest, and
Izard are not personally liable to disgorge profits. The profits from Sucroë
were retained by the corporate entities that acted as co-producers. Weinberg,
Charest, and Izard should not be required to disgorge profits that they did not
retain in their personal capacity.
[89]
Having concluded that disgorgement must be
ordered on a joint basis, I would maintain the Court of Appeal’s apportionment.
France Animation must disgorge 60 percent of the profits; Ravensburger, 15
percent; and Cinar, 25 percent.
(5)
Interest and Additional Indemnity
[90]
The trial judge applied interest and the additional
indemnity (arts. 1618 and 1619 CCQ) to the award of profits from the
date of the letter of demand, i.e. December 5, 1995.
[91]
The Court of Appeal held that this amounted to
imposing interest on the profits before they were earned. The profits ordered
disgorged were earned during a period of over a decade, largely after December
5, 1995. Since the trial judge refused to order an accounting, it is impossible
to apply the interest with precision. Consequently, the Court of Appeal applied
interest and the additional indemnity from a date situated roughly at the
halfway point of the period during which Sucroë generated revenue, i.e.
July 1, 2001.
[92]
The Court of Appeal’s solution was fair in the
circumstances of this case. The parties ordered to disgorge profits should not
pay interest from a date clearly prior to the period during which the bulk of
the profits were earned.
F.
Non-pecuniary Damages
[93]
The trial judge awarded Robinson $400,000 in
non-pecuniary damages as compensation for his psychological suffering. He
analogized Robinson’s psychological suffering to the injury sustained by a
victim of defamation.
[94]
The Court of Appeal reduced this award of
damages to $121,350. It reasoned that Robinson’s physical symptoms of shock and
depression stemmed from a bodily injury. Therefore, the trial judge should
have applied the cap on non-pecuniary damages established by this Court in the Andrews
trilogy.
(1)
Applicability of the Andrews Cap
[95]
In the Andrews trilogy, this Court set a
cap of $100,000 on the non-pecuniary losses that can be recovered following
catastrophic bodily injury. Non-pecuniary loss is a broad category that covers
elements such as “loss of enjoyment of life, esthetic prejudice, physical and
psychological pain and suffering, inconvenience, loss of amenities, and sexual
prejudice”: Quebec (Public Curator) v. Syndicat national des employés de
l’hôpital St-Ferdinand, [1996] 3 S.C.R. 211, at para. 63; Andrews,
at p. 264. In cases where the cap applies, it is adjusted to account for
inflation during the time that has elapsed since the trilogy was decided in
1978: Lindal v. Lindal, [1981] 2 S.C.R. 629, at pp. 640-41.
[96]
Although the cap was articulated by this Court
in the context of appeals from common law provinces, it is applied by Quebec
courts when assessing non-pecuniary damages stemming from bodily injury: J.-L.
Baudouin and P. Deslauriers, La responsabilité civile (7th ed. 2007),
vol. I, at pp. 481-84; D. Gardner, Le préjudice corporel (3rd ed. 2009),
at pp. 376-77. This is consistent with the concern, expressed in Andrews,
that the amounts of these non-pecuniary damages awards “should not vary greatly
from one part of the country to another. Everyone in Canada, wherever he may
reside, is entitled to a more or less equal measure of compensation for similar
non-pecuniary loss” (p. 263).
[97]
However, the Andrews cap is inapplicable
to non-pecuniary damages that do not stem from bodily injury, such as those
that result from defamation: Hill v. Church of Scientology of Toronto,
[1995] 2 S.C.R. 1130, at para. 168; see also Snyder v. Montreal Gazette Ltd.,
[1988] 1 S.C.R. 494, in which Lamer J. failed to attract a majority with his
proposition that damages in civil law defamation cases should be capped.
[98]
The Cinar appellants argue (i) that a cap should
be imposed on all non-pecuniary damages, regardless of whether they stem from
bodily injury, and alternatively (ii) that the non-pecuniary damages in this
case do in fact stem from bodily injury.
[99]
On the first argument, I would decline to extend
the scope of application of the Andrews cap beyond non-pecuniary damages
stemming from bodily injury. In Hill, this Court refused to apply the
cap to non-pecuniary damages stemming from defamation. The Court reasoned that
the policy concerns specific to bodily injury cases identified in the Andrews
trilogy ― namely the socially burdensome inflation of the amounts
awarded as non-pecuniary damages ― had not been made out in the field of
defamation law. Likewise, the Cinar appellants have not persuaded me that there
is an imminent risk of a burdensome upward trend in non-pecuniary damages
awarded in copyright infringement cases.
[100]
On the second argument, I do not agree that
Robinson’s non-pecuniary damages can be characterized as stemming from bodily
injury, within the meaning of art. 1607 of the CCQ. In Quebec civil law,
an injury can only be characterized as a bodily injury (“préjudice corporel”)
if “some form of a breach of physical integrity” is made out: Schreiber v.
Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269, at para. 62.
In making this characterization, it is important to look to whether the act
that caused the injury was itself a breach of the victim’s physical integrity,
rather than to whether the act had an impact on the physical health of the
victim: Gardner, at p. 17. Conversely, “interferences with rights properly
characterized as being of a moral nature will not be included within this class
of claims”: Schreiber, at para. 64.
[101]
The infringement of Robinson’s copyright was not
a breach of his physical integrity. The infringement caused severe shock
resulting in deterioration of Robinson’s physical health. However, as
discussed, impact on a victim’s physical health does not suffice to characterize
the injury as a bodily injury, in the absence of a breach of physical
integrity: see for example Landry v. Audet, 2011 QCCA 535 (CanLII), at
para. 107, leave to appeal refused, [2011] 3 S.C.R. v. The Court of Appeal,
with respect, lost sight of this distinction.
[102]
It is more appropriate to characterize
Robinson’s psychological suffering as a non-pecuniary damage stemming from material
injury. Indeed, the infringement of copyright was a breach of Robinson’s
property rights. It is the initial breach, rather than the consequences flowing
from that breach, which serves to characterize the type of injury suffered. As
Professor Gardner states it, [translation]
“the appropriation of Claude Robinson’s work is, for him, a material injury
with pecuniary consequences (the profits generated by using it) and
non-pecuniary consequences (the stress, emotional distress or, in other words,
psychological injury that results from it)”: “Revue de la jurisprudence 2011 en
droit des obligations” (2012), 114 R. du N. 63, at p. 70. As discussed,
the scope of application of the Andrews cap is limited; it does not
apply to non-pecuniary damages stemming from material injury.
[103]
Consequently, I conclude that in this case the
Court of Appeal erred in applying the Andrews cap.
(2)
Quantum
[104]
The Cinar appellants contend that even if the Andrews
cap is inapplicable to Robinson’s non-pecuniary damages, the trial judge
nevertheless committed a palpable and overriding error by awarding a grossly
disproportionate amount under this head of damages.
[105]
In Quebec, the quantum of non-pecuniary damages
is generally assessed by combining a conceptual approach, a personal approach,
and a functional approach: St-Ferdinand, at paras. 72-73, 75 and 77; Gauthier
v. Beaumont, [1998] 2 S.C.R. 3, at para. 101. The conceptual approach
measures loss “based on an appreciation of the objective seriousness of the
injury”: Stations de la Vallée de Saint-Sauveur inc. v. M.A., 2010 QCCA
1509, [2010] R.J.Q. 1872, at para. 83, per Kasirer J.A. The personal
approach “seeks to evaluate, from a subjective point of view, the pain and
inconvenience resulting from the injuries suffered by the victim”: St-Ferdinand,
at para. 75, citing A. Wéry, “L’évaluation judiciaire
des dommages non pécuniaires résultant de blessures corporelles: du pragmatisme
de l’arbitraire?”, [1986] R.R.A. 355. The functional
approach seeks to calculate the cost of measures that could provide solace to
the victim: Andrews, at p. 262. These approaches “apply jointly, and
thereby encourage a personalized evaluation” of non-pecuniary damages: St-Ferdinand,
at para. 80.
[106]
In addition to applying these approaches, courts
assessing non-pecuniary damages should compare the case at hand to other
analogous cases in which non-pecuniary damages were awarded: Stations de la
Vallée, at para. 83. They must attempt to treat “like cases alike” (ibid.),
by giving roughly similar compensation to victims whose injuries are alike when
assessed from the point of view of the combined approaches discussed above.
However, it is not helpful to compare cases where non-pecuniary damages are
capped to those where they are not. Arguments to the effect that a victim of
copyright infringement should not receive more compensation for non-pecuniary
damages than an accident victim rendered quadriplegic carry no weight, since
the Andrews cap applies as binding precedent in one case but not in the
other.
[107]
In this case, the trial judge relied heavily on
the personal approach, emphasizing the subjective impact of the infringement of
copyright on Robinson’s mental state and personal life. He bolstered his
analysis by comparing Robinson’s anguish to the similar level of anguish
experienced by the plaintiff in the defamation case Société Radio-Canada v.
Gilles E. Néron Communication Marketing inc., [2002] R.J.Q. 2639 (C.A.),
aff’d 2004 SCC 53, [2004] 3 S.C.R. 95. In Néron, the Court of Appeal
confirmed an award of non-pecuniary damages in the amount of $300,000. The
trial judge also looked to the Hill case, in which this Court awarded
$300,000 in general damages to a victim of defamation. He correctly took into
account the fact that Hill had been decided over a decade before the
case at hand, and that a valid comparison required the amount awarded to be
adjusted for inflation.
[108]
I agree with the trial judge that Robinson’s
non-pecuniary damages are analogous to those claimed by a victim of defamation.
The product of Robinson’s artistic exertions was taken from him and the
integrity of his personal creative process was violated, causing deep
psychological suffering. These harms are similar to those suffered by a victim
of defamation.
[109]
The trial judge had the advantage of observing
Robinson in court over a long period of time and was well placed to conduct a
personalized evaluation of his non-pecuniary damages. He made no palpable and
overriding error in his assessment of Robinson’s non-pecuniary damages.
G.
Punitive Damages
[110]
In addition to compensatory damages and
disgorgement of profits, the trial judge awarded $1,000,000 in punitive damages
on a solidary basis, against Cinar, Weinberg, Charest, Izard, Davin, and France
Animation. He justified this award largely by referring to the persistently
dishonest behaviour of these parties: they had engaged in fraudulent schemes to
obtain royalties and government subsidies, had lied repeatedly about their
involvement in these schemes, had lied to the court about their access to
Robinson’s work, and had treated Robinson with callous disregard.
[111]
The Court of Appeal reduced the award to
$250,000, and apportioned jointly: $100,000 against Cinar, and $50,000 against
each of Weinberg, Charest and Izard. It held that the other defendants had not
intentionally and deliberately violated Robinson’s rights, and were thus not
liable for punitive damages; that the nature of punitive damages requires them
to be assessed and awarded on an individualized basis, which precludes
solidarity; and that the award of punitive damages in Quebec is governed by a
spirit of moderation.
[112]
Robinson and Nilem submit that the trial judge’s
award of punitive damages is not in error and that the Court of Appeal should
not have interfered with it.
(1)
Statutory Basis for Punitive Damages
[113]
In Quebec, punitive damages can only be awarded
where they are provided for by a specific enabling enactment: art. 1621 CCQ.
The courts below did not fully examine the basis for the punitive damages
awarded in this case, although the Court of Appeal alluded to the Charter of
human rights and freedoms, R.S.Q., c. C-12 (“Charter”).
[114]
Section 49 of the Charter provides that
punitive damages may be awarded if there is an unlawful and intentional
interference with any of the rights and freedoms that the Charter recognizes.
The evidence establishes unlawful and intentional interference with several of
Robinson’s Charter rights. Copyright infringement is a violation of s. 6
of the Charter, which provides that “[e]very person has a right to the
peaceful enjoyment and free disposition of his property, except to the extent
provided by law”: see Construction Denis Desjardins inc. v. Jeanson,
2010 QCCA 1287 (CanLII), at para. 47. Additionally, the
infringement of copyright in this case interfered with Robinson’s personal
rights to inviolability and to dignity, recognized by ss. 1 and 4 of the Charter.
[115]
An interference with the right to inviolability
“must affect the victim’s physical, psychological or emotional equilibrium in
something more than a fleeting manner”: St-Ferdinand, at para. 97. The
trial judge made detailed findings of fact to the effect that Robinson’s
psychological and emotional equilibrium was deeply affected as a result of the
infringement and the ensuing legal proceedings (paras. 981-82).
[116]
An interference with the right to dignity is a
violation of “the respect to which every person is entitled simply because he
or she is a human being and the respect that a person owes to himself or
herself”: St-Ferdinand, at para. 105. In Markarian v. Marchés
mondiaux CIBC inc., 2006 QCCS 3314 (CanLII), the Quebec
Superior Court found that
[translation] [a]
lack of respect, contempt and degrading treatment constitute interference with
dignity. They must reach a certain degree to be sanctioned under the Charter. [para. 589]
[117]
Here, Cinar, Weinberg, Charest, and Izard
consistently and contemptuously denied having access to Robinson’s work, and
disparaged Robinson’s claims that they had copied his work. Their behaviour
constitutes an interference with Robinson’s Charter right to dignity,
and provides an additional basis for the award of punitive damages.
(2)
The Parties Liable for Punitive Damages
[118]
The Court of Appeal was correct to conclude that
only Cinar, Weinberg, Charest, and Izard could be found liable for punitive
damages. Under s. 49 of the Charter, punitive damages are only awarded
if an interference with protected rights and freedoms is “intentional”. An
interference is intentional “when the person who commits the unlawful
interference has a state of mind that implies a desire or intent to cause the
consequences of his or her wrongful conduct, or when that person acts with full
knowledge of the immediate and natural or at least extremely probable
consequences that his or her conduct will cause”: St-Ferdinand, at para.
121. The detailed findings of the trial judge establish intentional
interference with protected rights by Cinar, Weinberg, Charest, and Izard.
[119]
As discussed, the same cannot be said of Davin.
The record does not support the contention that he had or should have had
knowledge of the actions that gave rise to an interference with Robinson’s Charter
rights. Nor can France Animation be said to have engaged in an intentional
interference with Robinson’s rights as a result of its employer-employee
relationship with Izard, who personally engaged in infringement. I agree with
the Court of Appeal that Izard was a relatively low-level employee of France
Animation and that the employer-employee relationship is not sufficient to hold
France Animation liable for his intentional interference with Robinson’s rights
under the Charter. In order to establish that an employer shares its
employee’s intent to interfere with Charter rights, there must be
evidence of factors such as “[o]rders given by the employer, knowledge of or
failure to prohibit the unlawful acts, failure to order that the acts cease”,
or the employee’s relatively elevated hierarchical position within the
organization: Gauthier, at para. 111. These factors are not present
here.
(3)
Solidarity of Punitive Damages
[120]
In my view, punitive damages cannot be awarded
on a solidary basis under the Charter. I come to this conclusion for two
reasons.
[121]
First, there is no statutory basis, whether in
the Civil Code or the Charter, for the solidarity of
punitive damages. In Quebec civil law, solidarity of obligations between
debtors is the exception, rather than the norm: D. Lluelles and B. Moore, Droit
des obligations (2nd ed. 2012), at p. 1524. Article 1525 of the CCQ
provides that “[s]olidarity between debtors is not presumed; it exists only
where it is expressly stipulated by the parties or imposed by law.” Consequently,
[translation]
“[i]n the absence of a contractual stipulation,
solidarity is . . . available only if it is clearly provided for in a
legislative provision”: J.-L. Baudouin and P.-G. Jobin, Les obligations (7th
ed. 2013), by P.-G. Jobin and N. Vézina, at p. 710.
[122]
The Quebec Court of Appeal’s jurisprudence is
divided on the issue of whether there is a statutory basis for the solidarity
of punitive damages awarded under the Charter. In Genex
Communications inc. v. Association québécoise de l’industrie du disque, du
spectacle et de la vidéo, 2009 QCCA 2201, [2009] R.J.Q. 2743, the court, per
Dalphond J.A., held that art. 1526 of the CCQ provides a statutory basis
for solidarity. It reasoned that the co-authors of an intentional interference
with rights protected by the Charter are essentially in the same
position as co-authors of an extra-contractual fault, who would be liable
solidarily under art. 1526 of the CCQ.
[123]
However, in Solomon v. Québec (Procureur général),
2008 QCCA 1832, [2008] R.J.Q. 2127, the court, per Pelletier J.A., found
that art. 1526 of the CCQ does not provide a basis for awarding punitive
damages on a solidary basis under the Charter. It noted that the
provision applies to “[t]he obligation to make reparation for injury”.
This wording suggests that solidarity between co-authors of a fault only
applies to compensatory damages, the purpose of which is to repair injury. The
purpose of punitive damages, by contrast, is not to repair injury, but rather
to achieve prevention, deterrence, and denunciation.
[124]
I prefer the reasoning and result in Solomon.
The wording of art. 1526 of the CCQ, which emphasizes its application to
the obligation to repair injury, does not extend to the Charter’s
punitive damages regime. Moreover, in the years since both Solomon and Genex
were decided, this Court has recognized that the punitive damages regime
under the Charter is autonomous from the extra-contractual civil
liability regime established under the Civil Code: de Montigny v.
Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64, at para. 44, per
LeBel J. In my view, art. 1526 of the CCQ applies to
extra-contractual fault causing injury and cannot ground the solidarity of
punitive damages awarded under the Charter.
[125]
The second reason for concluding that punitive
damages cannot be awarded on a solidary basis is that this would be
inconsistent with the principles set forth in art. 1621 of the CCQ,
which provides:
1621. Where the awarding of punitive damages is provided for by law, the
amount of such damages may not exceed what is sufficient to fulfil their
preventive purpose.
Punitive damages are assessed
in the light of all the appropriate circumstances, in particular the gravity of
the debtor’s fault, his patrimonial situation, the extent of the reparation for
which he is already liable to the creditor and, where such is the case, the
fact that the payment of the damages is wholly or partly assumed by a third
person.
[126]
Article 1621 of the CCQ expressly
requires that the objectives of punitive damages — prevention, deterrence (both
specific and general), and denunciation of acts that are particularly
reprehensible in the opinion of the justice system — be taken into account when
awarding them: Richard v. Time Inc., 2012 SCC 8, [2012] 1 S.C.R. 265, at
para. 155, per LeBel and Cromwell JJ. Among the non-exhaustive list of
factors that should be taken into account when assessing the quantum of
punitive damages are “(1) the gravity of the debtor’s fault, (2) the debtor’s
patrimonial situation, (3) the extent of the reparation for which the debtor is
already liable to the creditor and (4), where such is the case, the fact that
the payment of the damages is wholly or partly assumed by a third person” (e.g.
an insurer): ibid., at para. 199.
[127]
Both the objectives of punitive damages and the
factors relevant to assessing them suggest that awards of punitive damages must
be individually tailored to each defendant against whom they are ordered. This
requirement of individualization militates against awarding punitive damages on
a solidary basis.
[128]
As art. 1621 of the CCQ makes clear,
punitive damages “may not exceed what is sufficient to fulfil their preventive
purpose”. Whether the quantum of damages is sufficient to ensure prevention is
determined by looking to factors that, by their very nature, are specific to
each individual defendant against whom punitive damages are awarded: V. Karim, Les
obligations (3rd ed. 2009), vol. 2, at pp. 801-2. The gravity of the
conduct of several co-defendants may vary from one defendant to the other (ibid.).
As well, the patrimonial situation of co-defendants, the extent of the
reparation for which they are already liable, and the assumption of payments by
a third party are all factors that are specific to each defendant.
[129]
It has been argued that awarding punitive
damages on a solidary basis against the co-authors of an intentional
interference with Charter rights would contribute to the preventive
purpose of these damages. [translation] “In some cases, such a
condemnation cannot help but encourage individuals to refuse to participate in civil
faults such as this for fear of having to pay punitive damages in the place of a
co‑author”: Genex, at para. 135, per Dalphond J.A.
[130]
I agree that the possibility of being ordered to
pay punitive damages on a solidary basis may have a deterrent effect. However,
a properly tailored award of punitive damages, which takes into account the
factors enumerated by art. 1621 of the CCQ and all other appropriate
circumstances, will already achieve sufficient deterrence. Adding solidarity to
a properly tailored award will only create a risk that the amount of punitive
damages exceeds what is sufficient to ensure prevention. This would be the case
where one of the defendants is insolvent, which would prevent co-defendants
from recovering that defendant’s share of the damages and effectively increase
the punitive damages for which they are liable: Jobin
and Vézina, at p. 716.
[131]
I add this. In St-Ferdinand, this Court awarded punitive damages on a solidary basis.
L’Heureux-Dubé J. (writing for the Court), held that “nothing . . . would
prevent joint and several liability [from] operating” in the context of an
award of punitive damages, “as it does in respect of other kinds of damages”
(para. 131). However, St-Ferdinand was decided under the provisions of
the Civil Code of Lower Canada. In my view, the legislative and
jurisprudential developments since that ruling, in particular the introduction
of art. 1621 of the CCQ, justify departing from the precedent set in
that case.
[132]
For these reasons, I conclude that the trial
judge erred by awarding punitive damages under the Charter on a solidary
basis.
(4)
Quantum of Punitive Damages
[133]
The Court of Appeal reduced the award of
punitive damages from $1,000,000 to $250,000. In my view, the Court of Appeal
was correct to re-assess the trial judge’s award of damages. However, it gave
too little weight to the gravity of Cinar, Weinberg, Charest, and Izard’s
conduct. I would award an amount of $500,000 in punitive damages.
[134]
In Richard, this Court held that an
appellate court may only interfere with a trial judge’s assessment of punitive
damages (1) if there is an error of law; or (2) if the amount is not rationally
connected to the purposes for which the damages are awarded, namely prevention,
deterrence (both specific and general), and denunciation (see para. 190).
[135]
The Court of Appeal was justified in reducing
the trial judge’s award for punitive damages because the trial judge considered
factors that were not relevant to the assessment. The trial judge took into
account the fact that the Cinar appellants engaged in fraudulent schemes to
obtain royalties and government subsidies to which they were not entitled.
Here, punitive damages are being awarded because of an intentional interference
with several of Robinson’s rights under the Charter. Fraudulent schemes
perpetrated against third parties may attract distinct remedies at civil law or
sanctions at criminal law, but they are not relevant to the purposes pursued by
this award of punitive damages. In light of this error of law, it is necessary
to re-assess the quantum of punitive damages awarded by the trial judge: Richard,
at para. 198.
[136]
As discussed, punitive damages are assessed by
looking to the purposes they serve — prevention, deterrence, and denunciation.
Factors to be considered include the gravity of the debtor’s fault; the
debtor’s patrimonial situation; the extent of the reparation for which the
debtor is already liable to the creditor; and the fact that the payment of
damages will be wholly or partly assumed by a third person: art. 1621 CCQ.
I also note that, in Quebec civil law, “it is perfectly acceptable to use
punitive damages, as is done at common law, to relieve a wrongdoer of its
profits where compensatory damages would amount to nothing more than an expense
paid to earn greater profits while flouting the law”: Richard, at para.
206.
[137]
In addition, particular attention must be paid
to the gravity of the debtor’s fault, which “is undoubtedly the most important
factor”: Richard, at para. 200. The gravity is assessed
from two perspectives: “. . . the wrongful conduct of the wrongdoer and the
seriousness of the infringement of the victim’s rights” (ibid.).
[138]
This said, punitive damages must be awarded with
restraint. Article 1621 of the CCQ expressly provides that the award of
punitive damages “may not exceed what is sufficient to fulfil their preventive
purpose”. The typical range for punitive damages in Quebec is between $5,000
and $250,000: see review of the case law in the reasons of the Court of Appeal,
at para. 249. However, in cases where the gravity of the conduct warrants it,
punitive damages reaching $1,000,000 or more have been awarded: Markarian;
Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595.
[139]
In this case, the relevant factors point in
different directions. On the one hand, the gravity of the conduct suggests a
high amount of punitive damages. Cinar, Weinberg, Charest, and Izard engaged
in intentional and calculated copyright infringement, which they planned to
keep secret, all the while reaping profits from an internationally successful
children’s television series. They persistently denied having copied any
portion of Robinson’s work throughout the lengthy legal proceedings. Conduct of
this nature threatens one of the fundamental goals of Canadian copyright law,
namely “to prevent someone other than the creator [of a work] from
appropriating whatever benefits may be generated”: Théberge, at para.
30. The impact of this conduct on Robinson was equally serious. It deprived him
not only of a source of revenue, but also of his sense of proprietorship over a
project that had deep personal significance for him. He experienced profound anguish.
Insult was added to injury by the callous denials of copying and by
insinuations to the effect that Robinson was simply an attention-seeking
eccentric.
[140]
On the other hand, Cinar, Weinberg, Charest, and
Izard have already been found liable towards Robinson for substantial amounts
of money. As the Court of Appeal noted, they will be largely deprived of any
benefits they may have gained from the infringement.
[141]
I would award $500,000 in punitive damages. The
amount of $1,000,000 awarded by the trial judge is too high. It was awarded on
the basis of irrelevant factors and did not give sufficient weight to the
substantial amounts awarded under other heads of damages. On the other hand,
the amount of $250,000 awarded by the Court of Appeal fails to fully reflect
the gravity of the conduct and the need to deter others from engaging in
similar conduct. The offending conduct was extremely lucrative; the penalties
associated with it must be proportionally significant. An amount of $500,000
reaches an appropriate balance between the overarching principle of restraint
that governs these damages, on the one hand, and the need to deter conduct of
this gravity, on the other.
[142]
Since I have found that these damages cannot be
awarded on a solidary basis, I must apportion them among the parties. The Court
of Appeal held Cinar liable for two-fifths of the amount of punitive damages,
and each of Weinberg, Charest, and Izard liable for one-fifth. This appears to
be reasonable, considering that Cinar drew greater financial benefit from the
infringement than Weinberg, Charest, or Izard.
IV.
Conclusion
[143]
I conclude that the copyright in Curiosity
was infringed. The trial judge committed no reviewable errors in finding that Sucroë
reproduced a substantial part of Curiosity. The Cinar appellants
incorrectly argue for an approach that dissects Robinson’s work into its
constituent parts. Rather, a qualitative and holistic approach must be adopted.
In order to determine whether a substantial part of Robinson’s work was copied,
the features that were copied by the Cinar appellants must be considered
cumulatively, in the context of Robinson’s work taken as a whole. This is
precisely the approach adopted by the trial judge. In addition, the expert
evidence relied upon by the trial judge in his analysis was admissible.
[144]
On the issue of liability, I agree with the
Court of Appeal that the record does not ground a finding of personal liability
against Davin. As for Weinberg, Charest, and Izard, their personal liability
for infringement is engaged. I also find Cinar, France Animation, Ravensburger,
and RTV Family Entertainment liable for infringement.
[145]
My conclusions on the issue of infringement make
it unnecessary to examine the extra-contractual liability of Cinar, Weinberg,
and Charest.
[146]
With respect to damages, I agree with the Court
of Appeal that profits cannot be ordered disgorged on a solidary basis under s.
35 of the Copyright Act . I also agree that a payment made by
Ravensburger to France Animation could not be treated as revenue for the
purpose of calculating profits. However, unlike the Court of Appeal, I would
include in the calculation of profits those profits associated with the
soundtrack of Sucroë. I would also refrain from deducting from the
profits a payment that was allegedly made by Cinar to Jaffa Road. Finally, I
would maintain the Court of Appeal’s apportionment with respect to the
disgorgement of profits.
[147]
On the issue of non-pecuniary damages, the Court
of Appeal erred in applying the Andrews trilogy cap to damages that did
not stem from bodily harm. I find that the trial judge committed no palpable
and overriding error in his assessment and would reinstate the award of
$400,000.
[148]
As regards punitive damages, I agree with the
Court of Appeal that they cannot be awarded on a solidary basis. In addition,
the Court of Appeal was correct to re-assess the quantum of damages, although
it did not give sufficient weight to the gravity of the conduct in this case. I
would award an amount of $500,000. Cinar is liable for
two-fifths of that amount, and each of Weinberg, Charest, and Izard are liable
for one-fifth.
[149]
Finally, I agree with the Court of Appeal’s
solution with respect to the computation of interest and the additional
indemnity.
[150]
It follows that I would dismiss the appeals in
files 34466, 34467, and 34468.
[151]
With respect to file 34469, I would allow the
appeal in part. Specifically, I would reinstate the profits from the Sucroë soundtrack
and the Jaffa Road amount in the trial judge’s calculation of profits;
reinstate the trial judge’s order of non-pecuniary damages; and award $500,000
in punitive damages, subject to apportionment on a joint basis as discussed in
these reasons.
[152]
I would award Robinson and Nilem costs
throughout, in addition to the trial judge’s award of $1,500,000 in
solicitor-client costs for the proceedings at the trial level. The trial judge
was well placed to observe the litigation strategy of the Cinar appellants, as
well as all other factors relevant to exercising his discretion to award solicitor-client
costs under the Copyright Act . I would decline to award Robinson and
Nilem costs on a solicitor-client basis for the appeals before the Court of
Appeal and this Court. There were serious points of law to argue and it is not
established that, on appeal, the Cinar appellants acted in bad faith or
otherwise conducted themselves in a manner that warrants an award of costs on a
solicitor-client basis.
Appeals
34466, 34467 and 34468 dismissed. Appeal 34469 allowed in part with costs
throughout.
Solicitors for the
appellants (34466)/respondents (34469) Cinar Corporation and Les Films Cinar
inc. and for the respondent (34469) 3918203 Canada Inc.: Davies Ward
Phillips & Vineberg, Montréal.
Solicitors for the
respondents (34466, 34467, 34468)/appellants (34469) Claude Robinson and Les
Productions Nilem inc.: Gowling Lafleur Henderson, Ottawa; Mannella
Gauthier Tamaro, Montréal.
Solicitors
for the appellants (34468)/respondents (34469) Christophe Izard, France
Animation S.A., Ravensburger Film + TV GmbH and RTV Family Entertainment AG and
for the respondent (34469) Videal Gesellschaft Zur Hertellung Von
Audiovisuellen Produkten MHB: Fasken Martineau DuMoulin, Montréal.
Solicitors for the
respondent (34469) Christian Davin: Borden Ladner Gervais, Montréal.
Solicitors for the
appellants (34467)/respondents (34469) Ronald A. Weinberg and
Ronald A. Weinberg, in his capacity as sole liquidator of the succession
of the late Micheline Charest: Langlois Kronström Desjardins,
Montréal.
Solicitors for the
intervener Music Canada: McCarthy Tétrault, Toronto.