Docket: T-1765-13
Citation:
2017 FC 590
Ottawa,
Ontario, June 19, 2017
PRESENT: The Honourable Madam Justice St-Louis
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BETWEEN:
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PREMIUM SPORTS
BROADCASTING INC.
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Plaintiffs
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and
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9005-5906
QUÉBEC INC. (doing business as RESTO-BAR MIRABEL) and STEVE CARON
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Defendants
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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
The plaintiff, Premium Sports Broadcasting Inc.
[Premium], alleges that the defendants, Resto-Bar Mirabel and Steve Caron, broadcast
the “Ultimate Fighting Championship” [UFC] pay-per-view
fight on March 16, 2013 [the Fight] without authorization, thereby violating sections
21, 24 and 35 of the Copyright Act, RSC 1985, c C‑42, and
paragraphs 9(1)(c), (d) and (e) of the Radiocommunication Act, RSC
1985, c R-2.
[2]
Premium holds the broadcast rights in Canada to
a number of sporting events, including those related to the UFC pay-per-view
fights, and it was not disputed that it held the rights to broadcast the Fight
live from the Bell Centre in Montréal. The pay-per-view program of the Fight
began at 10:00 p.m. and was to include several fights, including the first
between Mike Ricci and Colin Fletcher.
[3]
9005-5906 Québec Inc., doing business as Resto-Bar
Mirabel [Resto-Bar Mirabel], is a restaurant and bar located in Mirabel [the resto-bar
or Resto-Bar Mirabel establishment], and Steve Caron is its sole director.
[4]
Premium filed a motion for summary judgment
against the defendants pursuant to rules 213 to 215 of the Federal
Courts Rules, SOR/98-106, but discontinued the motion prior to the hearing.
The defendants, meanwhile, submitted a motion for summary trial pursuant to rule 216,
which is the subject of this judgment.
[5]
In short, the Court agrees with the parties’
position and concludes that a summary trial is an appropriate procedural
vehicle in this case. Moreover, on the merits of the case, the Court finds that
Premium has not proved, on a balance of probabilities, that the defendants
broadcast the Fight, and will therefore dismiss the action.
II.
Factual background
[6]
On April 4, 2013, Premium sent a notice of
default letter to Resto-Bar Mirabel, alleging that it had broadcast the Fight
without authorization and without paying the fees, and demanding that it pay
Premium $9,000.00.
[7]
On October 28, Premium filed an action against
49 defendants, including Resto-Bar Mirabel and Steve Caron, alleging that they
had broadcast the Fight without authorization. Premium was claiming $300,000.00
from them. On December 16, 2013, the defendants filed their defence, denying
that they had broadcast the Fight and stating that on March 16, 2013, they had presented
a “Harlem Shake”-type dance event, hosted by
three disc jockeys.
[8]
On November 13, 2013, Madam Justice Kane granted
an interlocutory injunction against the defendants, including Resto-Bar Mirabel
and Steve Caron, that among other things (1) prohibited the broadcast of
UFC “Pay-per-View” fights without the written
authorization of Premium or Zuffa International
LLC; (2) ordered the source, description and means by which they accessed
Premium’s UFC fights to be revealed, as well as the means used to intercept,
decode, decrypt or download by internet these events; (3) ordered the
information and devices used in such a context to be maintained and preserved;
(4) ordered the production, further to a request by Premium to this effect, of
statements of accounts that could be relevant to matters at issue between the
parties.
[9]
On November 19, 2013, by letter addressed to Premium,
the defendants denied having broadcast the Fight.
[10]
On December 22, 2014, Premium filed a notice of
motion for summary judgment, and on September 23, 2015, the defendants filed a
notice of motion for summary trial.
[11]
Between 2013 and 2015, Premium came to
agreements with a number of defendants and obtained default judgments against
others, such that only Resto-Bar Mirabel and Steve Caron remained as named
defendants.
[12]
In March 2017, Premium discontinued its claim
for $300,000.00 and suggested instead that the amount of $15,000.00 would be
appropriate in the circumstances.
[13]
A few days prior to the hearing, Premium discontinued
its motion for summary judgment and did not challenge the motion for summary
trial as procedural vehicle to resolve this case.
III.
Parties’ evidence and positions
A.
Premium’s evidence and position
[14]
There is no question that the defendants did not
have the right to broadcast the Fight.
[15]
However, Premium alleges that Resto-Bar Mirabel [translation] “was
seen” broadcasting the Fight. On this point, Premium submits in evidence
the observation report of Anthony Collin, a private investigator employed by
Garda, dated March 16, 2013; the affidavit of Mr. Collin, dated October 22,
2013; the affidavit of Yves Lefebvre, Mr. Collin’s supervisor at Garda, dated
October 28, 2015; the observation report of Mr. Collin, amended on April
10, 2013 by Mr. Lefebvre; the affidavit of Rod Keary, Premium’s director of
operations, dated September 29, 2014; and a number of other observation
reports regarding other establishments, all completed by Mr. Collin on
March 16, 2013. Premium also submitted in evidence the cross-examinations of Steve
Caron, Simon Langevin and Mickael Carreau.
(1)
Mr. Anthony Collin’s observation report and
affidavit
[16]
Mr. Collin went to the Resto-Bar Mirabel establishment
on March 16, 2013, and noted his findings in an observation report.
[17]
In this observation report, Mr. Collin noted the
following: (1) the start time at 10:00 p.m. and the end time at 10:10 p.m.; (2) there were four approximately
50-inch televisions in operation, and the fighters were identified as Mike
Ricci and Colin Fletcher; (3) the fight was in Round 1; (3) the short
colours were blue and orange; and (4) the logo on the television screens was
identified as that of Videotron.
[18]
Mr. Collin also signed an affidavit on October
22, 2013, initially submitted for the motion for summary judgment. In it, Mr.
Collin states that he arrived at the Resto-Bar Mirabel establishment “ at approximately 10:00 p.m.”,
where he could see the fight being presented on four television screens (“ I could see the UFC 158 event being shown on four television
screens ”). Mr. Collin also states that the
owner of the resto-bar allegedly told him that “they” would
be presenting the main event, namely the fight between Saint-Pierre and Diaz (“The owner told me that they would be
presenting the main UFC event, ‘St. Pierre v. Diaz’.”) and that he could see the Videotron, UFC, Tapout and Ecko logos.
(2)
Mr. Yves Lefebvre’s affidavit
[19]
In his affidavit, Mr. Lefebvre states that he
contacted Mr. Collin by telephone on or around April 10, 2013, to get
additional details and include them in Mr. Collin’s observation report of March
16, 2013. Mr. Lefebvre states that he then amended Mr. Collin’s observation
report to add the following: [translation]
“I arrived shortly after 10:00
p.m. Upon entering, I saw the screen with the fighters who were entering the
ring, and their names appeared on screen. I also asked the owner if they were showing
the main fight, and he said yes”.
[20]
Furthermore, in that same affidavit, Mr. Lefebvre
paradoxically states that Mr. Collin confirmed that he had arrived at the resto-bar
“ just before 10 p.m.”.
[21]
In addition to the amended observation report,
Mr. Lefebvre attached to his affidavit other observation reports, completed by
Mr. Collin the evening of March 16, 2013, one of which is for the bar called “Le Step” in
Ste-Sophie, and in which Mr. Collin states he arrived at 10:25 p.m., or 15
minutes after the end of his observation at the resto-bar.
(3)
Mr. Rod Keary’s affidavit
[22]
In his affidavit, Mr. Keary reports Premium’s
activities, the damage they suffer when events for which they hold the
broadcast rights are broadcast without authorization, and various methods used
to access satellite transmissions illegally. He also refers to the content of
Mr. Collin’s affidavit, and in particular to the fact Mr. Collin stated that
he had seen a Videotron logo on the defendants’ televisions.
[23]
Mr. Keary attaches to his affidavit many
exhibits, including a copy of a page from the Resto-Bar Mirabel website, which
states, [translation] “ Come watch the biggest special events live on our jumbo screens
” and [translation]
“ For hockey, boxing, UFC, NASCAR, F1 and
more, make your reservation online now ”.
(4)
Premium’s position regarding the defendants’
defence
[24]
In addition to its evidence, Premium raises the
weakness of the defence the defendants presented.
[25]
It submits that their version of the facts is
not credible and notes inconsistencies in the various affidavits and in the affiants’
cross-examinations. For example, in his affidavit, Mr. Caron states that
the four televisions in the resto-bar were operational during the entire
evening of March 16, 2013, and that it was entirely possible that they had broadcast
the free part of the UFC program prior to the fight. During his
cross-examination, however, Mr. Caron merely stated that two televisions were
showing a hockey game and two others the free part of the fight. Premium notes
that this response contradicts the statements Simon Langevin made on
cross-examination, to the effect that the four televisions were all broadcasting
the same sporting event, which is selected based on the clients’ requests.
Similarly, Premium refers to statements made by Mickael Carreau, one of the
guest disc jockeys from that evening, who stated on cross-examination that the
dance only started at midnight. Premium thus argues that it was plausible that the
defendants broadcast the fight before the start of their dance party.
[26]
Premium also submits that the Court can draw a
negative inference from the fact the defendants refused to produce some
evidence; destroyed some evidence, including some electronic equipment; and
would not allow Premium to question certain potential witnesses.
[27]
Additionally, Premium draws the Court’s
attention to the fact that the defendants decided not to cross-examine Mr.
Collin and Mr. Lefebvre, and submits that the Court must draw a negative
inference (rule 216(4) and Louis Vuitton Malletier SA v Singga Enterprises
(Canada) Inc, 2011 FC 776 at para 99 [Louis Vuitton]). According
to Premium, the fact that the defendants did not cross-examine Mr. Collin and Mr.
Lefebvre prevents them from submitting evidence that would contradict their
testimony.
B.
Defendants’ evidence and position
[28]
The defendants state that they did not broadcast
the fight on March 16, 2013, but instead had a “Harlem
Shake”-type dance event.
[29]
They presented as evidence the affidavits of
Steve Caron, director of Resto-Bar Mirabel; Mickael Carreau, manager of the resto-bar;
and Simon Langevin, a guest disc jockey for the evening of March 16, 2013.
[30]
The defendants also submitted the transcript of
their cross-examination of Mr. Keary.
(1)
Mr. Steve Caron’s affidavit
[31]
In his affidavit, Mr. Caron states that more
than 6,000 promotional invitations for the dance night were sent out using the
Facebook social media platform and that more than 200 people accepted the invitation.
A screenshot of the Facebook event page is attached to the affidavit to support
this statement. He also states that three disc jockeys were invited to the
event and that they were paid through an admission fee collected from the participants.
[32]
Mr. Caron also states that he enquired about the
cost of a licence to present pay-per-view events, which varies from $750.00 to
$10,000.00. Mr. Caron states that he did not obtain one because the price was
too high, considering his clientele and the sales figures of Resto-Bar Mirabel.
[33]
In addition to the screenshot of the Facebook
event page, the following exhibits are attached in support of Mr. Caron’s
affidavit: two letters from the defendants’ counsel to Premium’s counsel, dated
November 19 and 29, 2013, respectively; an affidavit by a Garda private
investigator who went to another establishment targeted by Premium, including
evidence collected by the investigator to show that the Fight had been
broadcast in that establishment; and invoices and other billing data of the defendants’
counsel in this case.
(2)
Mr. Mickael Carreau’s affidavit
[34]
Mr. Carreau states that he worked as a disc
jockey at the resto-bar between 5:00 p.m. and 3:00 a.m. the evening
of March 16, 2013, that a “Harlem Shake”-themed
dance night started around 10:00 p.m., and that the resto-bar did not broadcast
the fight during the “Harlem Shake” night.
(3)
Mr. Simon Langevin’s affidavit
[35]
Mr. Langevin’s affidavit indicates that he
worked as manager of the resto-bar between 5:00 p.m. and 3:00 a.m.
the evening of March 16, 2013. His affidavit contains the same statements as
Mr. Carreau’s.
(4)
Mr. Rod Keary’s cross-examination
[36]
During Mr. Keary’s cross-examination, the defendants
filed in evidence: a DVD with an excerpt from the Fight; an excerpt from a
fight card given to Mr. Collin which shows Mike Ricci wearing blue shorts
and Colin Fletcher wearing orange shorts; emails exchanged between counsel for
the parties; a screenshot of Google Maps showing the distance between the
Resto-Bar Mirabel establishment and the Le Step bar in Sainte-Sophie; details
of Resto-Bar Mirabel’s Videotron package, indicating that it was subscribed to the
TVA Sports network; and copies of the Videotron bills addressed to Resto-Bar
Mirabel for the period including March 16, 2013.
(5)
Defendants’ position
[37]
With regard to Mr. Collin’s observation report,
the defendants argue that the document is not sufficient to prove they
broadcast the fight, and they note that even Mr. Lefebvre thought the report
had gaps, leading him to ask Mr. Collin for clarifications.
[38]
The defendants note the following gaps: (1) the
report does not mention the lineup outside or the requirement of a tip to enter
the resto-bar, when a tip was required at the door starting at 10:00 p.m.;
(2) Mr. Collin did not collect any material evidence, such as photographs, to
support his report; (3) Mr. Collin noted the shorts were blue and orange, while
the photographs taken during the fight indicate that one of the fighters was
wearing white shorts and the other, grey shorts; (4) in light of the various
reports Mr. Collin filled out, he supposedly left the resto-bar at 10:10 p.m.
and arrived at the Le Step bar in Sainte-Sophie at 10:25 p.m., 15 minutes
later, when in fact, it takes 30 minutes to get from one to the other,
according to the data from Google Maps. Additionally, the defendants contradict
Mr. Collin’s statement that the owner of the resto-bar told him that the fight
between Saint-Pierre and Diaz would be presented, as Mr. Caron states that
he never confirmed to anyone that the fight would be broadcast.
[39]
The defendants refer to Mr. Keary’s affidavit,
in which he states that at 10:07 p.m., only the fighter Colin Fletcher was
shown on screen and that Mike Ricci entered the arena after 10:10 p.m.
According to Mr. Keary’s timeline, the Fletcher-Ricci fight had not even begun
yet at 10:10 p.m. (Answers to Written Examination of Rod Keary at paras 17-18),
the time at which Mr. Collin states he ended his observation at the resto-bar. Moreover,
this timeline of events contradicts the note in Mr. Collin’s observation
report, which indicates that the fight was in Round 1.
[40]
As for Mr. Lefebvre, he contradicts Mr. Keary because
he states that the first round of this fight was under way before 10:10 p.m.
(Yves Lefebvre’s Affidavit at para 5).
[41]
The defendants also note that they do not use
sports to attract their clients but instead rely on other types of events and programs,
such as comedy shows. The presence of four La Cage aux Sports restaurants within
a 15-kilometre radius of their establishment requires Resto-Bar Mirabel to
distinguish itself by presenting something different from what its competitors
offer.
[42]
With regard to the Resto-Bar Mirabel website, the
defendants note that it promotes UFC events in general, but not specifically
pay-per-view ones. They submit that nowhere on the site is there an invitation
to people looking to watch a pay-per-view sporting event to come to their
establishment.
[43]
In sum, the defendants point out that the plaintiff
has the burden of proving the facts required to substantiate its claim, and
they argue that this burden was not met.
[44]
According to the defendants, the best evidence
Premium presented was Mr. Collin’s observation report. However, the various
versions of the facts presented by Premium’s witnesses do not even allow for a
confirmation of the time Mr. Collin arrived at the resto-bar on March 16,
2013. There is a choice between (1) 10:00 p.m., as indicated in Mr.
Collin’s observation report; (2) approximately 10:00 p.m., as
indicated in Mr. Collin’s affidavit; (3) shortly before 10:00 p.m.,
as affirmed by Mr. Lefebvre in his affidavit; or (4) shortly after 10:00 p.m.,
as indicated in the amended observation report, which was amended by Mr.
Lefebvre, not Mr. Collin.
[45]
According to the defendants, this time, 10:00 p.m.,
is crucial because the UFC night was available for free before 10:00 p.m.
After that, there was a UFC show on TVA Sports that was still free, as well as
the pay-per-view fight.
[46]
Moreover, Mr. Collin’s departure at 10:10 p.m.
would not have allowed him to “see” the first round of the fight at the resto-bar,
or to see the fighters arrive in the ring, which appears to be confirmed by his
incorrect description of the colours of the shorts. Additionally, if Mr. Collin
left the resto-bar at 10:10 p.m., he could not have arrived at the Le Step
bar in Ste-Sophie at 10:25 p.m.
[47]
According to the defendants, the weakness of
this evidence makes their evidence to the effect that a dance night was held on
March 16, 2013, even more credible: it had been advertised, the place was
prepared, and the televisions were turned off. The disc jockey had installed
lights and was playing dance music for the clients, who consisted of young
women and men there for the event.
[48]
In regard to rule 216(4), which states that the
Court may draw an adverse inference if a party fails to cross-examine on an
affidavit or to file responding or rebuttal evidence, the defendants argue the
following: (1) they cross-examined Mr. Keary; (2) Mr. Collin did not submit an
affidavit for the summary trial, only for the summary judgment; (3) they
presented rebuttal evidence. Therefore, the Court should not draw an adverse
inference pursuant to rule 216(4).
[49]
Finally, the defendants submit that they are
entitled to their extrajudicial fees in this case, owing to the unfounded
allegations presented by Premium, which constitute an abuse of process. Relying
on rule 400, they ask this Court to order Premium to pay $4,865.18,
representing the amount of the extrajudicial fees incurred up to the filing and
serving of their defence, in addition to a lump sum of $5,000.00 for services
rendered since then, including the preparation of the motion for summary trial,
as well as costs.
IV.
Issues
[50]
The Court must first determine whether a summary
trial is the appropriate procedural vehicle in this case.
[51]
If so, and as rightly pointed out by the
parties, it is then relevant to determine whether Premium has proved, on a
balance of probabilities, that the defendants broadcast the Fight. The Court
will therefore not address the alleged violations of the Copyright Act and
the Radiocommunication Act unless there is a positive response to this
question.
V.
Analysis
A.
Is a summary trial the appropriate procedural
vehicle?
[52]
Summary trials are provided for in rule 215(3).
If the Court is satisfied that there is a genuine issue of fact or law for
trial with respect to a claim or a defence, the Court may, as a matter of
discretion, hold a summary trial under rule 216 (Manitoba v Canada, 2015
FCA 57 at para 16).
[53]
Under rule 216(5), the Court shall dismiss the
motion for summary trial if (a) the issues raised are not suitable for
summary trial; or (b) a summary trial would not assist in the efficient
resolution of the action. Unless it is of the opinion that it would be unjust
to decide the issues on the motion, the Court may grant judgment either
generally or on an issue in particular if it is satisfied that there is
sufficient evidence for adjudication, regardless of the amounts involved, the
complexity of the issues and the existence of conflicting evidence (rule
216(6)).
[54]
The moving party has the burden of demonstrating
that a summary trial is appropriate (Collins v Canada, 2014 FC 307 at para 39
[Collins]). To determine whether a summary trial is appropriate, the
court must consider factors such as:
•
the amount involved;
•
the complexity of the matter;
•
its urgency;
•
any prejudice likely to arise by reason of delay;
•
the cost of taking the case forward to a
conventional trial in relation to the amount involved;
•
whether credibility is a crucial factor;
•
the course of the proceedings; and
•
any other matters that arise for consideration (Louis
Vuitton at para 96; Wenzel Downhole Tools Ltd v National-Oilwell
Canada Ltd, 2010 FC 966 at paras 36-38; Collins at para 40).
[55]
According to the case law, a summary trial is warranted
where:
•
the issues are well defined and their resolution
will allow the action, or whatever remains of it, to proceed more quickly or be
resolved between the parties;
•
the facts necessary to resolve the issues are
clearly set out in the evidence;
•
the evidence is not controversial and there are
no issues as to credibility; and
•
the questions of law, though novel, can be dealt
with as easily as they would be after a full trial (0871768 BC Ltd v Aestival
(Vessel), 2014 FC 1047 at para 58).
[56]
If the Court dismisses the motion for summary
trial in whole or in part, it may order the action, or the issues in the action
not disposed of by summary trial, to proceed to trial or order that the action
be conducted as a specially managed proceeding (rule 216(8)). However, if “ the Court finds that a case
is suitable for summary trial, then the Court should hear the case on the
merits in the same motion ” (Collins at para 41).
[57]
The defendants submit that this case should be
disposed of in a summary trial. In their motion for summary trial, the defendants
ask this Court (1) to decide the true issue by summary trial; (2) to declare
that they did not broadcast the fight on March 16, 2013; (3) to dismiss the
action commenced against them by Premium; and (4) to order Premium to pay them
$4,865.18 in extrajudicial fees incurred until the defence was filed and a lump
sum of $5,000.00 for services provided since then, as well as costs.
[58]
According to the defendants, a summary trial is warranted
since (1) the issue is well defined; (2) the facts necessary to resolve
the issue are clearly set out in the affidavits submitted in evidence; (3) no
additional evidence is required; (4) credibility is not a major issue, in that
the documentary evidence alone allows for a fair and enlightened decision to be
rendered; (5) the parties have had the opportunity to conduct written and oral examinations
and cross-examinations; and (6) the principle of proportionality therefore
argues in favour of committing the matter to summary trial.
[59]
The Court shares the parties’ opinion and finds
that a summary trial is the appropriate vehicle, particularly in light of the
amount sought, the complexity of the case, and the evidence presented to decide
the matter.
B.
Has Premium proved on a balance of probabilities
that the defendants broadcast the fight?
[60]
The Court finds that Premium has failed to
prove, on a balance of probabilities, that the defendants broadcast the fight.
[61]
The Court notes that Premium’s arguments, as
very able as they may be, are designed to minimize the weakness of its own
evidence and divert the Court’s attention to certain weaknesses in the defendants’
position. Premium behaves as if its burden was one of making a prima facie
case, allowing the onus of proof to be shifted to the defendants. However, such
is not the case. The onus is not on the defendants to prove that they did not
broadcast the fight, but on Premium to prove that they did. Therefore, the gaps
Premium raises in the defendants’ evidence do not allow it to meet or reverse
its own burden of proof.
[62]
The balance of probabilities, the usual standard
that applies in civil matters, requires the Court to scrutinize “the relevant evidence with care to determine whether it is
more likely than not that an alleged event occurred” (FH v
McDougall, 2008 SCC 53 at para 49. In French: “ pour déterminer si, selon
tout vraisemblance, le fait allégué a eu lieu ”).
[63]
The Court notes that the evidence presented by
Premium is essentially based on Mr. Collin’s observation report, which
states that he witnessed the broadcast of the fight. However, this evidence is
fraught with significant contradictions or inconsistencies, particularly with
regard to the time he arrived at the premises of the defendant, Resto-Bar
Mirabel, and to the content broadcast on the televisions when he was present.
[64]
The Court adopts the defendants’ position that
the time Mr. Collin arrived and left the resto-bar is a determinative element
in this case, considering that the Fight was broadcast only from 10 p.m.
However, and as mentioned at paragraphs 17 to 21 of this judgment, several
different scenarios have been submitted as evidence by Mr. Collin and Mr.
Lefebvre regarding the time during which Mr. Collin was actually present at the
resto-bar.
[65]
In sum, the Court concludes that Premium has not
shown, on a balance of probabilities, that the defendants broadcast the fight
on March 16, 2013.
[66]
The Court does not find it appropriate in the
circumstances to exercise its discretion to draw adverse inferences from the
fact that the defendants did not cross-examine Mr. Collin (Collins at
para 81).
VI.
Costs
[67]
The defendants submit that they are entitled to
extrajudicial fees in this case, owing to abusive and unfounded allegations made
by Premium, who filed an action that, on its face, was doomed to fail. They also
argue that this abuse of process was an attempt to intimidate Mr. Caron
because there is no evidence or allegation in support of Premium’s action that
would allow the corporate veil to be lifted, thereby engaging Mr. Caron’s
liability.
[68]
As this Court recently noted, “[i]t has now been well-established that solicitor-client
costs are awarded only on very rare occasions, for example when a party has
displayed reprehensible, scandalous or outrageous conduct or as a matter of
public interest” (Stryker Corporation v Umano Medical Inc, 2016 FC
378 at para 53).
[69]
The Court does not consider there to be any extraordinary
circumstances here that would justify awarding solicitor-client costs.
[70]
Pursuant to the discretion conferred to it by rule
400, the Court awards costs to the defendants for a lump sum of $5,000.00.
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