Hollywood Nights Sports Inc. v. Banda Filarmonic Lira De Fatima Inc., 2002 FCT 105

Date: 20020128

Docket: T-2265-01

Neutral citation: 2002 FCT 105

Toronto, Ontario, this 28th day of January, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                               HOLLYWOOD NIGHTS SPORTS INC.

                                                                                                                                                          Plaintiff

                                                                              - and -

BANDA FILARMONICA LIRA DE FATIMA INC., INTERNATIONAL

SPORTS BAR BAR-B-Q AND GRILL, PORTS CAFÉ BAR & GRILL INC.,

RUI RIBEIRO MENDES carrying on business as TROPICAL SPORTS BAR,

BOA ESPERANCA RESTAURANT LTD., COPAS CAFÉ,

MORNINGSTAR RESTAURANT, PRIME TIME SPORTS CAFÉ,

DUPONT BBQ CHICKEN, TONY SANTOS carrying on business as

ESPLANADA CAFÉ & RESTAURANT, ATLANTICO-RESTAURANTE LIMITED,

SANDRA CUNHA carrying on business as CAFÉ LUSO CHURRASQUEIRA,

RESTAURANTE CHURRASQUEIRA AVEIRENSE,

CHURASQUEIRA O ESPETO, AMADEUS RESTAURANT,

RAINBOW CAFÉ NIGHT CLUB, FERNANDO FAUSTINO carrying on business as

BRADFORD TIC TAC SPORTS BAR AND GRILL, BRADFORD BAR GRILL,

PAUL VIANA carrying on business as STAR OF THE OCEAN,

NOE'S BOCA DOCE INC., JACK'S PLACE, VENTURAS SIGNATURE RESTAURANT, MATTINA PIZZERIA LTD, PORTAZOR PROPERTIES LTD.,

CAFÉ DUNAS DO MAR INC., MARIA PRECIOSA DE SOUSA

carrying on business as CHURRASQUEIRA & CAFÉ O CANTINHO, CAFÉ ROYAL,

WILD ORCHID CAFÉ/BAR LTD., RESTAURANTE O MARINHEIRO,

CERVEJARIA COSTA NOVA LTD., O FAROL - THE LIGHTHOUSE SEAFOOD

RESTAURANT, NATIONAL SPORTS BAR, PORTUGUESE CLUB OF

MISSISSAUGA, 1128885 ONTARIO LTD., BAR DA VILLA, TRAINEIRA,

BOTO FOGO BAR & CAFÉ, LA BAMBA RESTAURANT & NIGHT CLUB,

OS AMIGOS RESTAURANT & CAFÉ INC., O PICO RESTAURANT,

BRAZIL BAKERY & PASTRY LIMITED, EUROSPORT BAR,

1107582 ONTARIO INC., GINA COSTA carrying on business as DELTA SPORTS BAR,

CAFÉ GRACIOSA & SPORTS BAR INC., KHAI HONG NGUYEN

carrying on business as JENNY'S CAFÉ & BAR, ST. CLAIR BAKERY,

HOLLAND SPORTS BAR INC., CERVEIJARIA MELO ABREU,

SAO MATEUS SPORTS BAR INC., ABICA CAFÉ, FLA. CAFÉ SPORTS BAR,

CD SPORTS BAR RESTAURANT, CENTRAL BILLIARDS,

FERNANDO NEVES carrying on business as JAMESVILLE CAFÉ,

BANDA PORTUGUESA DE HAMILTON & I.S.P. INC., VASCO DA GAMA INC.,

TOTAL SPORTS BAR LTD., JOHN COUTO carrying on business as

WALTER'S SPORTS BAR, METRO COFFEE BAR,

RUI GUILHERME VIEIRA carrying on business as REI DOS LEITOES,

NBS SPORTS, NUCLEO SPORTINGUISTA LONDON ONTARIO,

CUP TO MUG, 2001 SPORTS BAR CAFÉ and CITY SPORTS BAR

Defendants

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 The plaintiff filed a statement of claim against a number of defendants for copyright infringement, a declaration that the defendants' actions are a breach of the Radiocommunication Act, damages for the infringement and the breaches of the Radiocommunication Act, an accounting of profits and injunctive relief.

[2]                 The current motion by the plaintiff is for an interlocutory injunction against certain of the defendants as listed in the motion. Certain of these defendants are named in the motion record in reply (hereinafter referred to as the "named defendants").

[3]                 The defendant, Morningstar Restaurant indicated to the Court that it would make representations at the next hearing of this matter.

[4]                 Other than the named defendants and Morningstar Restaurant, none of the other defendants named in the motion appeared or were represented at the hearing.

[5]                 Counsel for the parties requested that the hearing of the motion be adjourned until February 4, 2002 in order to allow for cross-examination of the affiants of some of the affidavits.

[6]                 The plaintiff requested an interim injunction until February 4, 2002 against the defendants named in the motion and an interlocutory injunction against the defendants listed in the motion who did not appear.

[7]                 The plaintiff has an agreement dated September 6, 2001 which purports to give the plaintiff exclusive rights to broadcast Portuguese Football National Football League ("Portuguese League") games in Canada in commercial establishments, except for Portuguese League games that involve the home field games of the Portuguese League team or which are broadcast on the RTP International Network.

[8]                 The plaintiff obtained these rights from Kelly Broadcasting Systems Inc. ("Kelly Broadcasting").

[9]                 In the affidavit of Jose Enstaquio, he deposes as follows in paragraph 7:

I was informed by each of those representatives and verily believe that each of the Represented Defendants has arrangements with Dishnetwork (a wholly owned subsidiary of Kelly Broadcasting Systems) like those described in paragraph 5 above. I was also informed by those representatives and verily believe that the Representative Defendants have had these arrangements since before the Plaintiff entered into its contract with Kelly Broadcasting Systems as alleged in the Statement of Claim and the Plaintiff's Motion Record.

[10]            Mr. Eduardo Vieira swore a further affidavit on January 21, 2002 in reply to the Eustaquio affidavit. He states in that affidavit that he believes the previous arrangements that the named defendants had with respect to the provision of the games were obtained by "representing that they had a U.S. address and by failing to mention that they were commercial establishments".

[11]            Issues

1.          Should an interim injunction issue against the named defendants and Morningstar Restaurant?

2.          Should an interlocutory injunction issue against the defendants named in the motion record for an interlocutory injunction other than the named defendants and Morningstar Restaurant?

Analysis and Decision

[12]            The test for obtaining an interlocutory or interim injunction are outlined in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) at page 305:

This Court, as well as other appellate courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396 [Footnote 3 appended to judgment]. As stated by Kerans J.A. in the Black case supra:

The tri-partite test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly, that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience considering the total situation of both parties favors the order.

The plaintiff must meet all three branches of the tri-partite test.

[13]            Issue 1

Should an interim injunction issue against the named defendants and Morningstar Restaurant?

I propose to deal firstly with the issue of irreparable harm. The authorities state the plaintiff must be able to show that it will suffer irreparable harm if the interim injunction is not granted. If the defendant can be compensated by damages for any loss that it may suffer, then there is no justification to issue an interim injunction. In R.J.R. MacDonald Inc. v. Canada (Attorney General) (1994) 111 D.L.R. (4th) 385 (S.C.C.), the Supreme Court of Canada described irreparable harm as follows at pages 405 to 406:

At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.

"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court's decision (R.L. Crain Inc. v. Hendry (1988), 48 D.L.R. (4th) 228, 67 Sask. R. 123, 8 A.C.W.S. (3d) 380 (Q.B.)); where one party will suffer permanent market loss or irrevocable damage to its business reputation (American Cyanamid, supra); or where a permanent loss of natural resources will be the result when a challenged activity is not enjoined (MacMillan Bloedel Ltd. v. Mullin, [1985] 3 W.W.R. 577, 61 B.C.L.R. 145 (C.A.)). The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration (Hubbard v. Pitt, [1976] Q.B. 142 (C.A.)).

[14]            At this stage of this proceeding, based on the evidence that is before the Court with respect to the named defendants, I cannot find that the plaintiff will likely suffer irreparable harm before the next hearing date (February 4, 2002). The named defendants have provided affidavit evidence that they had arrangements made to receive the services prior to the date of the defendant's contract. Also, the named defendants have stated in an affidavit that they would not avail themselves of the plaintiff's service even if they are prohibited from receiving their current service. The time period to the next hearing date is very short and the plaintiff's evidence does not persuade me that it will suffer a loss of reputation or that its business will be lost before February 4, 2002 as a result of the named defendants' activities. I would apply the same reasoning to Morningstar Restaurant. The situation may well be different at the hearing of February 4, 2002, depending on the additional evidence.

[15]            As the plaintiff has to satisfy all three branches of the tri-partite test, because it has not persuaded me that it will suffer irreparable harm prior to the next hearing date, the plaintiff will not be granted an interim injunction against the named defendants or Morningstar Restaurant pending the hearing of February 4, 2002.

[16]            Issue 2

Should an interlocutory injunction issue against the defendants named in the motion record for an interlocutory injunction other than the named defendants and Morningstar Restaurant?

The situation is different with respect to the defendants named in the motion for an interlocutory injunction, who are not part of the named defendants, and who did not reply to the motion for an injunction. These defendants did not appear at the motion or put forward any evidence to inform the Court that they had any right to receive the services that the plaintiff claims the sole right to provide to commercial establishments in Canada. The plaintiff's affidavits allege damages with respect to the defendants and I am satisfied that the plaintiff has met the tri-partite test for an interlocutory injunction. There is a serious issue to be tried which is - Does the plaintiff have the sole right to provide the services? There is irreparable harm in that the plaintiff's business could cease if it is entitled to provide the services and customers are not purchasing the services from the plaintiff. The balance of convenience favours the plaintiff as it is entitled pursuant to its agreement to provide these services.

[17]            I therefore hold that the plaintiff shall be granted an interlocutory injunction against Dupont BBQ Chicken, Atlantico-Restaurante Limited, O Pico Restaurant, 1107582 Ontario Inc. and Banda Portuguesa De Hamilton & I.S.P. Inc.

[18]            The plaintiff shall have costs of this motion against the defendants named in paragraph 17 in the amount of $60 per defendant payable forthwith.

[19]            The costs of this motion for an interim injunction and an adjournment shall be dealt with by the justice hearing the application on February 4, 2002.

ORDER

[20]            IT IS ORDERED that:

1.          Pending the trial or determination of this action, each of the defendants, Dupont BBQ Chicken, Atlantico-Restaurants Limited, O Pico Restaurant, 1107582 Ontario Inc., Banda Portuguesa De Hamilton & I.S.P. Inc., their agents or servants, or any person acting under their instruction, or any person having knowledge thereof is restrained from performing publicly, showing, broadcasting or exhibiting any Portuguese Football National Football League game or decrypting, without authorization, transmissions of Portuguese Football National Football League games, with the exception of the home games of the Portuguese team Benfica, without the consent, in writing, of the plaintiff.

2.          The issuance of this order is premised on the plaintiff's undertaking to abide by any order concerning damages that the Court may make if it ultimately appears that the granting of the order has caused damage to any of the responding parties for which the plaintiff ought to compensate any of the responding parties.

3.          The defendants, Dupont BBQ Chicken, Atlantico-Restaurants Limited, O Pico Restaurant, 1107582 Ontario Inc., Banda Portuguesa De Hamilton & I.S.P. Inc. pay the plaintiff its costs of this motion forthwith, which costs are fixed at $60 per defendant.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Toronto, Ontario

January 28, 2002