Docket: T-231-15
Citation:
2017 FC 172
Ottawa, Ontario, February 10, 2017
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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CHARLES
AUGUSTUS STEEN III
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Plaintiff
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and
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DR. SEUSS
ENTERPRISES, L.P.,
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AUDREY GEISEL,
TISH RABE,
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JOE MATHIEU,
JACK PRELUTSKY, RANDOM HOUSE OF CANADA AND
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KARL ZOBELL
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Defendants
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ORDER AND REASONS
[1]
In February 2015, the Plaintiff commenced an
action seeking damages from the Defendants for copyright infringement as well
as for various acts alleged to have occurred in the United States (U.S.),
including criminal fraud and conspiracy, perjury, forgery, wrongful arrest, malicious
prosecution, fabrication of evidence, obstruction of justice and intentional
infliction of emotional distress.
[2]
This action is the most recent chapter in a saga
that goes back to the mid 1990’s and which was prompted by the publication, in
the U.S., of a children story-book entitled “Daisy-Head
Mayzie”. The Plaintiff has since been claiming that this book plagiarizes,
in several ways, his unpublished work “The Pains of
Being Pure of Heart” for which he obtained a U.S. copyright
registration in 1991. In 2001, the Plaintiff initiated two proceedings in the
U.S., one in Albuquerque, New-Mexico, and the other in Portland, Oregon,
alleging infringement and other wrongdoings by various named defendants in
those actions.
[3]
The Albuquerque action was ultimately dismissed
for want of prosecution. A motion filed in 2013 to re-open that case was
dismissed. The Portland action, which was commenced against 23 defendants,
including three of the present defendants, Dr. Seuss Enterprises, L.P., Audrey
Geisel and Karl Zobell (the Seuss Defendants), as well as Random House Inc.,
the U.S. parent company of the Random House Defendant in the present instance, contained
various claims that were dismissed as being frivolous or malicious. The
remaining parts of that action were ultimately dismissed for want of
prosecution. In the midst of these proceedings, things got nasty and charges
were laid against the Plaintiff for extortion related to comments made to Ms. Geisel
and Mr. Zobell. In March 2004, the Plaintiff pleaded guilty to one count of
felony extortion in a California Court.
[4]
The Plaintiff claims that although the copyright
for his work “The Pains of Being Pure of Heart”
was registered in the U.S., it is enforceable in Canada by virtue of the Berne
Convention for the Protection of Literary and Artistic Work, 9 September 1886, 828 UNTS 221, as amended.
[5]
On June 10, 2016, Prothonotary Kevin R. Aalto, on
a motion brought by the Defendants, struck out, without leave to amend, all the
allegations of the Statement of Claim save and except the copyright
infringement allegations which, in turn, were stayed on the basis of forum non
conveniens “to allow the Plaintiff to pursue such
proceedings in the United States as he so chooses”. Applying the
factors set out in Van Breda v Village Resorts Ltd, 2012 SCC 17 [Van
Breda] and taking into consideration the interests of justice, as mandated
by Lexus Maritime Inc v Oppenheim Forfait Gmbh, [1998] AQ 2059 (CA), Prothonotary
Aalto found that the copyright infringement allegations were more connected to
California than Canada and should therefore be tried in that jurisdiction.
[6]
Presently before
the Court is a motion in writing filed by the Plaintiff on October 27, 2016
under rule 51 of the Federal Courts Rules, SOR/98-106 (the Rules), for
an Order setting aside Prothonotary Aalto’s Order, reinstating the copyright
infringement complaint and extending the time to file the said motion. According
to rule 51(2) of the Rules, the Plaintiff’s deadline for challenging
Prothonotary Aalto’s Order was June 20, 2016. This deadline, therefore, has
been exceeded by a little more than four (4) months.
[7]
The Defendants oppose the Plaintiff’s motion on
all counts.
[8]
The Court must first determine whether the
Plaintiff has satisfied the jurisprudential four-part test for an extension of
time. If he has not, then the Plaintiff will not be permitted to pursue his
appeal of Prothonotary Aalto’s Order.
[9]
This test requires the Plaintiff to establish that
(i) he had a continuing intention to pursue the said appeal; (ii) a reasonable
explanation for the delay exists; (iii) no prejudice to the Defendants arises
from the delay; and (iv) his position in the appeal has some merit (Canada
(Attorney General) v Hennelly, [1999] 167 FTR 158, 89 ACWS
(3d) 376 (FCA) [Hennelly]).
[10]
To begin with, it is important to note that the
Plaintiff does not take issue with that part of Prothonotary Aalto’s Order striking
out, without leave to amend, all the Statement of Claim’s non-copyright
infringement allegations. The appeal the Plaintiff wishes to undertake only
concerns Prothonotary Aalto’s finding that the Van Breda factors favour
the U.S. as the appropriate jurisdiction to entertain the Statement of Claim’s
copyright infringement cause of action.
[11]
The main - and sole - basis for the Plaintiff’s
request for an extension of time is that new evidence has been discovered since
Prothonotary Aalto issued his Order. That evidence is the publication in the
U.S., on July 5, 2016, of a new version of the book “Daisy-Head
Mayzie” (the New Evidence) where the Defendants, according to the
Plaintiff, have intentionally “eliminated all of the
incriminating evidence of copyright infringement, in art, plot and language”
and have therefore, “clearly exposed themselves to
blatant copyright infringement” […].
[12]
The Plaintiff claims that when the Defendants’
motion to strike was argued before Prothonotary Aalto in March 2016, he knew
that new drawings for “Daisy-Head Mayzie”
were being created but ignored that the Defendants were making a new version of
that book. He says that it is only on October 18, 2016, after he had relocated
in Montreal, that he “put it all together”.
[13]
The main difficulty with the Plaintiff’s motion
is that he has shown no intention whatsoever of challenging Prothonotary
Aalto’s Order, let alone a continuing intention to do so as it is clear from
the record that if it had not been for the New Evidence, there would have been
no challenge to that Order. This explains why there is nothing in the
Plaintiff’s motion material pointing to any reviewable error on the part of Prothonotary
Aalto in concluding, on the basis of the material that was before him, that the
Van Breda factors favour the U.S. as the appropriate jurisdiction to
entertain the Statement of Claim’s copyright infringement cause of action. More
particularly, there is nothing pointing, as now required by Hospira
Healthcare Corp v Kennedy Institute of Rheumatology, 2016 FCA 215 [Hospira],
to Prothonotary Aalto having made a “palpable and
overriding error” in determining the facts and applying them to the Van
Breda legal test, which the Plaintiff concedes to have been correctly set
out by Prothonotary Aalto.
[14]
This is particularly evident from the
Plaintiff’s reply to the Defendants’ responding motion materials where the
Plaintiff’s main – and sole – focus is to attempt to show how the New Evidence might
have altered Prothonotary Aalto’s decision if it had been before him when he made
that decision. This is of no assistance to the Court when it comes to
determining whether the challenge to Prothonotary’s Order has, on the basis of
the standard of review established in Hospira, some merit as required by
the Hennelly test.
[15]
The fact of the matter is that what the
Plaintiff is ultimately asking the Court to do is to reconsider the Defendants’
motion to strike, and in particular the forum non conveniens analysis,
in light of the New Evidence. However, this goes beyond the scope of an appeal
of a prothonotary’s decision as the general rule is that such appeals are to be
decided on the basis of the material that was before the prothonotary (Shaw
v Canada, 2010 FC 577, at para 8). In other words, the Court should
not admit new evidence on an appeal from a prothonotary (Apotex
Inc v Wellcome Foundation Ltd, 2003 FC 1229, at para 10).
[16]
The Supreme Court of Canada decision in R v
Palmer, [1980] 1 S.C.R. 759 [Palmer], on which the Plaintiff relies in
order to claim that the New Evidence should be admitted for the purposes of his
motion, has to be read with caution here. Indeed, that case was decided in a
criminal law context and dealt with the application of a specific provision of
the Criminal Code providing appellate courts, in certain circumstances
and under certain conditions, with the authority to admit fresh evidence on
appeal. It reaffirmed, among other things, the principle that the rules
applicable to the introduction of new evidence in civil case appeals was not to
be applied with the same force in criminal matters, thereby establishing a
principled distinction between civil and criminal law matters in this respect (Palmer,
at p. 775). In addition to not dealing with a criminal law matter, the Court,
when seized of a motion under rule 51 of the Rules, is not a court of appeal per
se and the guiding principle regarding the admission of new evidence on
such motions is that it should not be admitted. Palmer, which was
rendered more than 35 years ago, has not altered that principle. This case is,
therefore, of no assistance to the Plaintiff.
[17]
Therefore, the delay resulting from the fact the
Plaintiff allegedly only discovered the New Evidence in October 2016 is
irrelevant in the case at bar. In other words, this does not constitute a
reasonable explanation within the meaning of the Hennelly test, for the time
taken by the Plaintiff to file his rule 51 motion in the present case. Furthermore,
the Plaintiff has provided no explanation as to why he was only in a position
to “put it all together” in October 2016,
once he had relocated in Montreal. As the prescribed deadline for the filing
of his rule 51 motion has been exceeded by more than five (4) months, such lack
of explanation would, in the ordinary course, normally be fatal to the
Plaintiff’s request for extension of time.
[18]
The proper way to seek reconsideration of a
matter on the basis of fresh evidence is normally to bring a motion under rule
399(2) of the Rules. That provision empowers the Court to set aside or vary an
order by reason of a matter that arose or was discovered subsequent to the
making of the order.
[19]
An order is open to be varied or set aside in
such context if the moving party establishes that the new matter was discovered
subsequent to the order, could not with reasonable diligence have been
discovered sooner and is of such character that if it had been brought forward sooner,
it would have altered the order (Saywack v Canada (Minister of Employment
and Immigration), [1986] 3 FC 189 (CA). As judicial policy strongly favors
finality of court orders so as to ensure the integrity of the judicial process,
rule 399(2) cannot be used as a vehicle for revisiting orders or judgments
every time a change in the facts occurs (Zeneca Pharma Inc v Canada
(Minister of National Health and Welfare), [2000] FCJ No 2134 (CA).
[20]
Here, if I was to consider the Plaintiff’s
motion as a motion brought under rule 399(2) or, for that matter, if I was to
admit the New Evidence as part of the Plaintiff’s challenge to Prothonotary
Aalto’s Order, I would conclude that this evidence is not of such character
that if it had been brought forward sooner, it would have altered Prothonotary
Aalto’s Order. In other words, it offers no assistance for this Court being a
more appropriate forum for the Plaintiff’s copyright infringement cause of
action or, for that matter, for a claim of a breach of copyright in Canada.
[21]
As counsel for the Defendant, Random House of
Canada, points out, the New Evidence, consisting of the version of the book “Daisy-Head Mayzie” published in July 2016, was
clearly published and printed in the U.S., not Canada, by Penguin Random House
LLC, not Random House of Canada, and has, as a result, no bearing on the
Plaintiff’s Canadian copyright infringement claim. The New Evidence is,
according to the Plaintiff, further and confirmatory evidence that the Seuss
Defendants and Defendant Joe Mathieu have conspired to steel his copyright work
and in doing so, “have clearly exposed themselves to
blatant copyright infringement”. However, none of these Defendants have
a direct connection to Canada, nor does the publication of the new version of
the book “Daisy-Head Mayzie” in July 2016.
[22]
I agree, therefore, with counsel for the
Defendants that the New Evidence would not have assisted the Plaintiff on the forum
non conveniens issue had it been available before Prothonotary Aalto.
[23]
Having found that the New Evidence would not
have altered Prothonotary Aalto’ Order if it had been brought to his attention,
I will deal with the Plaintiff’s accusation that counsel for the Defendants intentionally
and unethically concealed the fact that a new version of that book “was already ‘secretly’ being printed by Penguin Random
House” just to say that such accusations are so serious that they can
only be proven with clear and convincing evidence, not, as is the case here,
with suppositions, innuendos or speculative assertions. This wholly
unsubstantiated allegation will therefore, be given no weight.
[24]
For all these reasons, the Plaintiff’s request
for an extension of time must fail and with it, his challenge to Prothonotary
Aalto’s Order.
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