Date: 20031006
Docket: T-824-03
Citation: 2003 FC 1149
Ottawa, Ontario, October 6, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
VIDEO BOX ENTERPRISES INC. and
TVB (OVERSEAS) LIMITED
Plaintiffs
and
WEI BIN YANG (ALSO KNOWN AS WEIBIN YANG) and
4011716 CANADA INC.
Defendants
REASONS FOR ORDER AND ORDER
[1] This is a motion by the plantiffs for a review of the execution of the order of the Honourable Mr. Justice O'Keefe dated May 28, 2003; and a motion by the defendants for an order to quash the order of Justice O'Keefe on the fact that the plaintiff would not be a registered exclusive licencee in Canada because there is no certificate of registration of licence.
[2] The defendant Wei Bin Yang also mentioned that the damages are exaggerated because the actual disputed amount in this action would be less than $200 before the execution of the Anton Piller order.
BACKGROUND
[3] On August 18, 2003, the review was adjourned until September 15, 2003 to allow the defendant Wei Bin Yang (also known as Weibin Yang) to find a counsel to represent the company 4011716 Canada Inc.
[4] On August 18, 2003, I carefully explained to the defendant Wei Bin Yang that he could not himself represent the company which should be represented by a counsel or that he should present a motion with valid reasons to explain why the company cannot be represented by a counsel or why he, Mr. Wei Bin Yang, could represent his company.
[5] On September 15, 2003, at the beginning of the hearing, I again discussed the question of representation for his company with the defendant Wei Bin Yang. The defendant only said that he wanted to represent his company and provided no reasons why nor any affidavit in support.
[6] The Court decided that the company would not be represented for this particular hearing and repeated to the defendant that he should act pursuant to the directions that were provided on August 18, 2003 and repeated on September 15, 2003.
[7] In reviewing the file, I noticed that the defendant Wei Bin Yang had filed a statement of defence and counterclaim. I should again notify the defendant that he should settle the matter of the representation of the company 4011716 Canada Inc. which is not yet represented before the Court pursuant to the directions provided to the defendant Wei Bin Yang on August 18, 2003 and on September 15, 2003.
ANALYSIS
[8] I carefully reviewed the affidavits provided by both sides and exhibits attached to those affidavits.
[9] I particularly reviewed the two affidavits of Mr. Daniel Ovadia who was leading the group of persons that conducted the search and seizure at the defendant's premises, one dated August 13, 2003 and another sworn on September 12, 2003.
[10] I also reviewed the affidavit of Mrs. Élizabeth Jacquart, attorney, who was also attending at the defendant's premises on the day of the search and seizure.
[11] I also reviewed the affidavits of Mr. Hai Thach, Mr. Tullio Simboli and Mr. Kwok Ping Cheng.
[12] I also reviewed the affidavit of the defendant Mr. Wei Bin Yang sworn on August 18, 2003.
[13] I also examined the exhibits of evidence filed in the Court.
[14] I have examined the contracts between the parties referred to by the defendant.
[15] It is difficult at this stage to determine the validity of those contracts, but nevertheless, their existence are prima facie evidence in favour of the plaintiffs.
[16] The defendant also stated that he was not infringing the rights of the plaintiffs, given that some programs used by the defendant were downloaded from internet and that did not infringe the plaintiffs' rights. Moreover, according to the defendant, some of the evidence provided to Justice O'Keefe to obtain the Anton Piller order was illegally obtained by the plaintiffs.
[17] At this stage, I am faced with the contradictory testimonies of those who participated in the search and seizure on August 8, 2003 at the defendant's premises and the defendant himself, Mr. Wei Bin Yang.
[18] I have considered the evidence submitted by the plaintiffs, and I have reviewed the execution of the order made by the Honourable Mr. Justice O'Keefe on May 28, 2003. I have no hesitation in maintaining the order that the property removed following the search and seizure carried out on August 8, 2003 continue to be detained by the supervising solicitor until further order of this Court.
[19] I have no hesitation to conclude that the defendants have knowingly infringed the plaintiffs' interests in the copyright of the programs by selling and renting out infringing copies thereof.
[20] The defendants' said acts of infringement have caused and are causing serious and irreparable harm to the plaintiffs, and the balance of convenience favours the plaintiffs.
[21] In my view, the defendants failed to provide evidence that the order of O'Keefe J. should be quashed at this stage, and the defendants' motion has no merit.
ORDER
THIS COURT ORDERS THAT:
a) The motion by the defendants be dismissed;
b) The motion by the plaintiffs be granted;
c) The defendants and their respective employees, servants, agents, assigns, successors, and all those over whom the defendants exercise control, and all those having knowledge of the order sought herein be enjoined order, from, directly of indirectly, infringing copyright in any Program (as that terms is defined in the order), by reproducing all or a substantial part of the Programs in a material form or by one or more of the following means:
i. selling or renting out; or
ii. distributing to such an extend as to prejudicially affect the plaintiffs' respective rights; or
iii. by way of trade distributing, exposing or offering for sale or rental, or exhibiting in public; or
iv. possessing for the purpose of doing any of those acts described in the preceding paragraphs 3.(a)I, 3.(a)ii, and 3.(a)iii of this notice of motion; or
v. importing into Canada for the purpose of doing any of those acts described in the preceding paragraphs 3.(a)I, 3.(a)ii, and 3.(a)iii of this notice of motion;
copies of the Programs that infringe copyright or would infringe copyright if made within Canada by the person who made them; and/or by
d) The defendants and their respective employees, servants, agents, assigns, successors, and all those over whom the defendants exercise control, and all those having knowledge of the order sought herein be enjoined, from, directly or indirectly, in any way altering, erasing, defacing, destroying, hiding, removing, or transferring any of the following:
i. all copies of the Programs;
ii. all video disks (including without limitation, laser disks, VCDs, and DVDs), video tapes (including without limitation, ½ - inch VHS or ¾ - inch u-matic), film (including without limitation, 8 mm, 16 mm and 35 mm), and positive prints and negatives, that are in the defendants' possession, custody, power, or control, and that may be used or have been used to manufacture or duplicate the Programs; and
iii. all video cassette recorders, CD-ROM burners, and any and all other machines, appliances, or equipment that are in the defendants' possession, custody power, or control, and that were used or were intended to be used for making copies or reproducing any Programs in any format; and
iv. all information, documents, and things that relate in whole or in part to the Programs, including without limitation all correspondence, memoranda, financial records, financial statements, banking records, sales records, rental records, receipts, and invoices, that are in the possession, custody, power or control of the defendant, or are being held on the defendant's behalf by any other person; and
v. all computer-information storage systems, including all computers, computer discs, computer tapes, and backups thereof that contain the information, documents and things referred to in paragraph 3.(b)iv above;
e) Costs in the cause.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-824-03
STYLE OF CAUSE: VIDEO BOX ENTERPRISES INC. ET AL v.
WEI BIN YANG ET AL
PLACE OF HEARING: Montréal
DATE OF HEARING: 15-SEP- 2003
REASONS FOR ORDER AND ORDER: Blais J.
DATED: October 6, 2003
APPEARANCES:
Me Daniel OVADIA
Me Victor CARBONNEAU
FOR PLAINTIFFS
Mr.Wei Bin YANG
FOR DEFENDANTS
SOLICITORS OF RECORD:
OVADIA, SAUVAGEAU
401-1441, René-Lévesque Blvd. West
Montréal (Québec) H3G 1T7
FOR PLAINTIFFS
Mr.Wei Bin YANG (for himself)
10-3285, Barclay
Montréal (Québec) H3S 1K3
FOR Mr.Wei Bin YANG one of the DEFENDANTS
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