Date: 20020423
Docket: T-607-02
Neutral citation: 2002 FCT 459
BETWEEN:
DESIGN COUNCIL LTD. d.b.a.
THE STYLE COUNCIL
Plaintiff
and
NET VILLAGE INC., CHRISTIAN GREGOIRE,
DONALD PARIS and BANNER PHARMACAPS
Defendants
[1] Two matters in this action came before me at Montreal on April 22, 2002.
[2] The applicant was seeking a confidentiality and protective order as well as interim injunction restraining the defendants from posting or downloading through the server, Net Village Inc., original art work and print for textile designs created for the applicant "Style Council Works"; the plaintiff was also seeking the protection of what it termed "confidential information" previously relayed by it to the defendant Gregoire.
[3] Initially, these applications came before me on April 17, 2002 while I was duty judge in Ottawa. They were ex parte applications.
[4] I ordered service and advised I would hear the parties at Montreal on April 22, 2002.
[5] I heard the first application, that of a confidentiality and protective order. I listened for approximately two hours after which I rendered an order from the bench which is attached hereto. I was satisfied not to proceed with the injunction application; from what was submitted both orally and in writing I was confident that there were too many unanswered questions for the Court to entertain such an application.
[6] The evidence revealed that the parties, plaintiff and defendant Gregoire, began negotiations some two years ago to set up a website. The plaintiff provided Gregoire with some 13,000 photos and negatives of textile prints; he then proceeded to prepare a website and retained the services of a server, the defendant Net Village Inc., to provide the internet access.
[7] Negotiations were friendly between the parties for approximately 18 months, though never reduced to writing; they were adhering to a verbal agreement derived from much correspondence and electronic exchanges between the parties. A dispute arose between the plaintiff and the defendant Gregoire with respect to the payment of sums due allegedly unpaid in February 2002.
[8] The unresolved issues, at first blush, appear to be of a contractual nature; if such was the case, the Court would have no jurisdiction to entertain the dispute:
- Issues arose as to the proper parties to be joined by these proceedings;
- A reading of the pleadings did not satisfy me that this was even in the nature of a copyright infringement dispute; intellectual property rights, more particularly copyright protection was never raised by either party, either orally or in the dozens of written exchanges;
- If the matter was urgent, why did the plaintiff delay from February 2002 until April 17, 2002, to initiate proceedings and expect the Court to resolve the issues on an ex parte basis; though the statement of claim alleges copyright infringement, there is little evidence to support the allegations;
- Why seek a confidentiality and protective order; it was suggested by plaintiff that the designs are to be kept confidential. If so, why had they agreed for some 18 months to allow the server to post the 13,000 designs on a website from which copies could easily be reproduced.
[9] I was satisfied that the defendant Gregoire was the one responsible for creating the web, not the defendant Net Village Inc.; it is only a server.
[10] In order to grant an injunction, the Court must be satisfied that there is serious issue to be tried; weigh the balance of convenience and determine irreparable harm.
[11] With respect to the serious issue, two questions arise: does the Court have jurisdiction (is it a copyright matter, or contractual dispute); and why the delay in launching the application. I am also satisfied that the textile designs and prints are already in the public domain and should the plaintiff ultimately prove successful, damages as a remedy are available.
[12] Orders referring to both applications are attached hereto.
Paul Rouleau
Judge
MONTREAL, QUEBEC
April 23, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020423
Docket: T-607-02
BETWEEN:
DESIGN COUNCIL LTD. d.b.a.
THE STYLE COUNCIL
Plaintiff
and
NET VILLAGE INC., CHRISTIAN GREGOIRE,
DONALD PARIS and BANNER PHARMACAPS
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-607-02
STYLE OF CAUSE:
DESIGN COUNCIL LTD. d.b.a. THE STYLE COUNCIL
Plaintiff
and
NET VILLAGE INC., CHRISTIAN GREGOIRE,
DONALD PARIS and BANNER PHARMACAPS
Defendants
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: April 22, 2002
REASONS FOR ORDEROF THE HONOURABLE MR. JUSTICE ROULEAU
DATED: April 23, 2002
APPEARANCES:
|
Mr. Kenneth D. Hanna |
FOR THE PLAINTIFF |
|
Mr. André Bousquet |
FOR THE DEFENDANTS NET VILLAGE INC., CHRISTIAN GRÉGOIRE AND DONALD PARIS |
|
Mr. Yvan Houle |
FOR THE DEFENDANT BANNER PHARMACAPS |
SOLICITORS OF RECORD:
|
Ridout & Maybee L.L.P. Toronto, Ontario |
FOR THE PLAINTIFF |
|
Mr. André Bousquet Montreal, Quebec |
FOR THE DEFENDANTS NET VILLAGE INC., CHRISTIAN GRÉGOIRE AND DONALD PARIS |
|
Borden, Ladner, Gervais Montreal, Quebec |
FOR THE DEFENDANT BANNER PHARMACAPS |