PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
cob FPTV - FESTIVAL PORTUGUESE TELEVISION and
FRANK ALVAREZ
and
1548951 ONTARIOLIMITED carrying on business as O BOLA SPORTS BAR,
O AVIAO BAR & GRILL INC. operating as O AVIAO RESTAURANT,
and 827704 ONTARIO LIMITED operating as WHITE ROSE BAR,
WHITE ROSE BAR AND CAFÉ LIMITED,
PASQUALE D'ALESSIO carrying on business as WHITE ROSE BAR,
1205250 ONTARIO INC., carrying on business as NEW CASA ABRIL
RESTAURANT & CATERING,
CASA EUROPA SPORTS BAR INC., and
SPORTING CLUB IDEAL OF BRAMPTON
(Ontario)
and
3975592 CANADA INC. carrying on business as
RESTAURANT BEIRAMAR
Defendant
(Quebec)
REASONS FOR ORDER AND ORDER
[1] The Plaintiff, 1395047 Ontario Inc. cob FPTV - Festival Portuguese Television ("FPTV"), has a contract such that it can broadcast the 2004/2005 and 2005/2006 seasons of the Portuguese Premiere League Soccer which is known as the Superliga. FPTV also has copyrights for these rights.
[2] FPTV submits that its employees investigated the restaurant New Casa Abril and determined that it had repeatedly shown Superliga matches without FPTV's consent. It decided to prosecute the defendant, New Casa Abril, and the following series of legal proceedings ensued:
a. On February 7, 2005 FPTV filed a statement of claim against numerous Defendants. One was Mr. Januario Barros Abreu carrying on business as New Casa Abril. The personal defendant's name is actually Januario Barros. (The name Abreu was later discovered to have been added by mistake.) Corporate and business searches did not give rise to a business operating as New Casa Abril.
b. On February 14, 2005, Justice Campbell issued an interlocutory injunction against the defendants including Januario Barros Abreu cob New Casa Abril operating at 475 Oakwood Avenue. The injunction stated it "restrained [the company] from performing publicly, showing, broadcasting or exhibiting any Superliga matches for the 2004/2005 and 2005/2006 seasons or decoding encrypted satellite transmission of such matches without authorization or consent of the Plaintiffs in writing, with the exception of those matches shown on the RTP International Network".
c. Justice Campbell's order was personally served on February 21, 2005 on a female person seemingly in charge of the restaurant called New Casa Abril at 475 Oakwood Avenue.
d. On April 4th, 2005, Justice Pinard issued default judgment against several defendants, inter alia Januario Barros Abreu cob as New Casa Abril. The Court issued a permanent injunction against Januario Barros Abreu cob as New Casa Abril and ordered damages in the amount of $10,914 for infringement of copyright and breach of the Radio Communication Act, and costs of $1500.
e. FPTV issued a requisition for a writ of seizure and sale dated April 6, 2005 against Januario Barros Abreu cob as New Casa Abril. The writ was issued on April 12, 2005.
f. Once enforcement measures were taken, FPTV learned the business was actually 1205250 Ontario Inc. cob as New Casa Abril Restaurant & Catering ("120 Inc.") and that the proper name of the owner of 120 Inc. was actually Januario Barros. FPTV sought to amend the proceedings to properly name the Defendant.
g. On July 26, 2005, Justice Dawson issued an order to adjourn the Plaintiff's motion requesting an order amending the title of proceedings to correct the name of the Defendant and to also include 120 Inc. until September in order to allow the Defendant to retain counsel.
h. On September 12, 2005, Prothonotary Milczynski, with the consent of both the Plaintiff, the Defendant and Januario Barros, ordered the title of proceedings be amended to include 120 Inc. as a defendant. Januario Barros Abreu cob as New Casa Abril was removed as a defendant. She also ordered that 120 Inc. had 40 days to file a statement of defence. After that time, the Plaintiff was entitled to obtain judgment upon the same terms of Justice Pinard's order dated April 4, 2005. 120 Inc. was also ordered to be bound by the terms of Justice Campbell's February 14, 2005 injunction.
i. 120 Inc. served the Statement of Defence on FPTV on October 24, 2005 and attempted to file it with the Court on October 25, 2005. The Statement of Defence was rejected by the Court as it had not filed it within the stipulated 40 days. 120 Inc. did not bring a motion requesting an extension of time to file it until March 8, 2006.
j. On March 15, 2006, Justice Russell heard both motions and agreed to an extension of time and gave 120 Inc. 5 days to file its Statement of Defence. This was filed on March 20, 2006. Justice Russell stated that because 120 Inc. should be allowed to file its statement of defence, FPTV should not be granted judgment nor have the defence struck for failure to comply with Prothonotary Milczynski's Order or Justice Campbell's injunction. Justice Russell held there was sufficient evidence before him to order a show-cause hearing in accordance with Rule 467 of the Federal Courts Rules, SOR/98-106. He ordered that Januario Barros and 120 Inc. should appear on May 29, 2006 during general motions and be prepared to hear proof of their contempt and be prepared to present any defence which they might have.
k. This hearing was adjourned and finally took place on June 12, 2006 and lasted for three days.
[3] The relevant exact wording of Justice Campbell's order stated:
1. THIS COURT ORDERS that until such further order of this court, or the trial and full determination of this action, each of the Defendants listed in Schedule "A" attached hereto, their officers, directors, employees, agents, assigns, servants, or any person acting under their instructions, or any person having knowledge thereof, is retrained from performing publicly, showing, broadcasting or exhibiting any Superliga matches for the 2004/2005 and 2005/2006 seasons or decoding encrypted satellite transmission of such matches without authorization or consent of the Plaintiffs in writing, with the exception of those matches shown on the RTP International Network;
2. THIS COURT ORDERS that each of the Defendants is to provide to the Plaintiffs within 5 days of service of a copy of this Order, any serial numbers, identification numbers and satellite transmission decoding card numbers as may be contained on the Defendants' satellite receiving equipment, including any satellite dishes or satellite receiving sets;
3. THIS COURT ORDERS that the issuance of this order is premised on the Plaintiffs' undertaking to abide by any order concerning damages that the court may make if it is ultimately found that the granting of this order has caused damage to any of the Defendants such that the Plaintiffs are obligated to provide compensation.
[4] The Show cause order of Justice Russell in its relevant parts stated:
Mr. Janvario [sic] Barros and 1205250 Ontario Inc., carrying on business as New Casa Abril Restaurant and Catering shall appear before a Judge of this Court on Monday, May 29, 2006 during general motions in Toronto prepared to hear proof of their contempt of Justice Campbell's Order of February 14, 2005 and the Order of Prothonotary Milczynski of September 12, 2005 in that, notwithstanding those orders, they have continued to show 2004/2005 and 2005/2006 Superliga matches at the premises of New Casa Abril located at 475 Oakwood Avenue, Toronto, Ontario M6E 2WA as alleged by FPTV in the materials filed with this motion, and that they be prepared to present any defence which they may have.
[5] The Plaintiff brought a motion for contempt returnable February 20th, 2006 seeking the following relief:
An Order directing that Januario Barros and 1205250 Ontario Inc. operating as New Casa Abril Restaurant & Catering attend at a time and date to be fixed by the Court to hear proof of contempt against each of them as charged by the Plaintiff.
Issue
[6] Are either Januario Barros or 120 Inc. in contempt of the Order of Justice Campbell dated February 14, 2005 and the order of Prothonotary Milczynski dated September 12, 2005?
THE LAW OF CONTEMPT
[7] An excellent summary of the law of contempt is given by Justice Teitelbaum in Tele-Direct (Publications) Inc. v. Canadian Business Online Inc. (1998), 151 F.T.R. 271at paragraph 20:
I can do no better than to quote from the plaintiff's Memorandum on the state of what the jurisprudence is when dealing with the issue of contempt.
ONUS
69. The party alleging contravention of an order of the court has the burden of proving that the order has been defied. Contempt of court proceedings being quasi-criminal in nature, the defendant need not present any evidence to the court.
70. The plaintiff need only present evidence of the contempt and is not required to prove that the injunction was rightly granted. A show cause hearing should not bring into question the validity of the injunction rendered by the Court to which the Plaintiff is alleging defiance. The order of the court is deemed valid for the purposes of the hearing with respect to contempt of court.
BURDEN OF PROOF
71. An allegation of contempt of court is a matter of criminal (or at least quasi-criminal) dimension. This is to say that the Plaintiff must prove the constituent elements of contempt beyond a reasonable doubt.
KNOWLEDGE
72. Knowledge of the existence of an injunction is sufficient to obligate persons to obey it.
73. Despite the fact that contempt of court proceedings are analogous to criminal proceedings, the proof of mens rea is not a required element to be present for the finding of contempt. The intent to contravene an order of the court is not essential; if the contemnor has knowledge of the injunctive order, it is sufficient to find him liable for disobeying the injunction, whether or not he intended to defy the order.
74. The applicant need not show that the respondent intended to disobey the order in question nor that the respondent intended to interfere with the administration of justice. Mens rea and the presence of good faith are of no consequence in such proceedings and are only relevant as mitigating factors relative to the penalties that are to be imposed.
[...]
INJUNCTION
[...]
78. An injunction must be abided by even by those who are not parties to the action, if they know the substance or nature of the injunction. It is not necessary that the words "person or persons having notice of this order" be contained in the terms of the injunction in order for it to bind them.
BREACH OF INJUNCTION
79. Anyone who disobeys any process or order of the Court or a judge thereof is guilty of contempt of court.
80. There is breach of an order, such as an injunction when the party to whom it is addressed disobeys the order.
81. A court injunction will often enjoin not only the parties named in the action but also their employees, servants, brokers, agents, mandataries and assigns and all those over whom they exercise control. It follows that the defendant against whom such an injunction is pronounced is enjoined from committing the prohibited acts whatever be the method he may use in committing them. The defendant will be in breach of the injunction pronounced against him not only if he himself contravenes the order of the court but also if the order is breached by his agent, workman, servant or another person acting for him.
[...]
83. Persons not named as a party to an injunction are liable to be committed for breach of an injunction if, with knowledge, they step into the place of the person who is named in the injunction and commit the act enjoined.
86. A defendant against whom an injunction has been pronounced is in contempt if he does not do everything in his power to cause companies under his control to comply with the injunction.
[...]
OBSTRUCTION OF JUSTICE
[...]
89. The fundamental purpose of the court's contempt powers is to ensure the smooth functioning of the judicial process. Therefore even if technically there is no breach of an injunction because a person is not personally bound by the order, there can still be contempt if a person who has knowledge of an injunction acts in a way that tends to obstruct the course of justice by contravening the terms of the order. This is also so when a person aids and abets others in setting the Court at defiance and deliberately treats the order of the court as unworthy of notice.
90. Persons who are not parties to an action and therefore are not named therein must still abide by it if they know of the substance and nature of the injunction.
91. "A third party who knowingly aided and abetted a party to disobey an injunction may be found guilty of contempt, not because he breached the injunction but rather, because he acted in a manner that interfered with the course of justice". A defendant may therefore be in contempt in aiding in the commission of a breach of an injunction or inciting another to commit such a breach.
[Citations removed]
Analysis
[8] The Federal Courts Rules 466 and 467 provide:
| 466. Subject to rule 467, a person is guilty of contempt of Court who:
(a) at a hearing fails to maintain a respectful attitude, remain silent or refrain from showing approval or disapproval of the proceeding;
(b) disobeys a process or order of the Court;
(c) acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court;
(d) is an officer of the Court and fails to perform his or her duty; or
(e) is a sheriff or bailiff and does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes a rule the contravention of which renders the sheriff or bailiff liable to a penalty.
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466. Sous réserve de la règle 467, est coupable d'outrage au tribunal quiconque:
a) étant présent à une audience de la Cour, ne se comporte pas avec respect, ne garde pas le silence ou manifeste son approbation ou sa désapprobation du déroulement de l'instance;
b) désobéit à un moyen de contrainte ou à une ordonnance de la Cour;
c) agit de façon à entraver la bonne administration de la justice ou à porter atteinte à l'autorité ou à la dignité de la Cour;
d) étant un fonctionnaire de la Cour, n'accomplit pas ses fonctions;
e) étant un shérif ou un huissier, n'exécute pas immédiatement un bref ou ne dresse pas le procès-verbal d'exécution, ou enfreint une règle dont la violation le rend passible d'une peine.
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| 467. (1) Subject to rule 468, before a person may be found in contempt of Court, the person alleged to be in contempt shall be served with an order, made on the motion of a person who has an interest in the proceeding or at the Court's own initiative, requiring the person alleged to be in contempt:
(a) to appear before a judge at a time and place stipulated in the order;
(b) to be prepared to hear proof of the act with which the person is charged, which shall be described in the order with sufficient particularity to enable the person to know the nature of the case against the person; and
(c) to be prepared to present any defence that the person may have.
(2) A motion for an order under subsection (1) may be made ex parte.
(3) An order may be made under subsection (1) if the Court is satisfied that there is a prima facie case that contempt has been committed.
(4) An order under subsection (1) shall be personally served, together with any supporting documents, unless otherwise ordered by the Court. |
467. (1) Sous réserve de la règle 468, avant qu'une personne puisse être reconnue coupable d'outrage au tribunal, une ordonnance, rendue sur requête d'une personne ayant un intérêt dans l'instance ou sur l'initiative de la Cour, doit lui être signifiée. Cette ordonnance lui enjoint:
a) de comparaître devant un juge aux date, heure et lieu précisés;
b) d'être prête à entendre la preuve de l'acte qui lui est reproché, dont une description suffisamment détaillée est donnée pour lui permettre de connaître la nature des accusations portées contre elle;
c) d'être prête à présenter une défense.
(2) Une requête peut être présentée ex parte pour obtenir l'ordonnance visée au paragraphe (1).
(3) La Cour peut rendre l'ordonnance visée au paragraphe (1) si elle est d'avis qu'il existe une preuve prima facie de l'outrage reproché.
(4) Sauf ordonnance contraire de la Cour, l'ordonnance visée au paragraphe (1) et les documents à l'appui sont signifiés à personne.
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[9] In a contempt case, the Court finds itself in the position of being, for all intents and purposes, both accuser and judge. The consequence of this was poignantly explained by Justice Marceau in Valmet Oy v. Beloit Canada Ltd (1988), 20 C.P.R. (3d) 1 at p. 17:
One has difficulty finding a case involving the law of contempt where the court has not taken great care to insist upon the basic principle that the matter is one which must be considered and dealt with according to strict law (strictissimi juris). It is of course true that a contempt of court is an offence of a criminal character punishable by way of committal and/or sequestration. But it is, also, I think, that the courts have always felt the need to reaffirm constantly, and thus buttress, as much as possible, their complete objectivity in situations where they are, at one and the same time, the makers of the law, the triers of the accused and the punishers of the guilty. In any event, as I read the judgments, rules strict and severe have been developed in the past on the basis of that principle...
[10] Accordingly, in order for a person to be convicted of contempt, there has to be strict compliance with all the requirements.
[11] A person cannot be held in contempt unless he has knowledge of the order. In the case at bar, Januario Barros was not personally served with the order of Justice Campbell on February 21, 2005. That service was defective in the following ways:
a. Januario Barros was not personally served; instead, some unnamed woman who appeared to be in charge of the premises was served;
b. The order did not display Januario Barros' proper name; and
c. The order did not display the name of the corporate defendant.
[12] The order was served on a Monday when the restaurant is closed. Januario Barros testified that he usually is not at the restaurant on Mondays. He acknowledges that he saw the order in his restaurant but decided to ignore it as it displayed neither his correct name nor the name of the company that owns the restaurant.
[13] Under these circumstances, I find it impossible to find that the order was properly served on February 21, 2005.
[14] Once the mistakes of the order became known, on July 5, 2005 the Plaintiff served Januario Barros personally with a motion to correct the order by deleting the name "Januario Barros Abreu" and by adding the proper corporate defendant, 120 Inc. This fact is undisputed and accordingly I find that only as of July 5, 2005, that was there proper service and only as of this date can it be said that the Defendant and Januario Barros had knowledge of the order.
[15] Parenthetically I would note that notwithstanding the subsequent order of Prothonotary Milczynski dated September 12, 2005, the Plaintiff's motion record (filed February 15, 2006 and returnable February 20, 2006) still displays the style of cause indicating the defendant as Januario Barros Abreu cob as New Casa Abril instead of the proper defendant of 120 Inc.
Summary of the evidence of contempt
[16] For the plaintiff, the Court heard from Mr. da Silva, coordinator of Services for FPTV, and Mr. Ben Falcone, General Manager of CIRV Radio Inc.
[17] For the defence, the Court heard from Januario Barros, his chief waiter, George Gomes, a part-time waiter called Jose Gomes, and two clients of New Casa Abril being Angelo Rocha and Joao Goncalves.
Uncontested background testimony
[18] Superliga games are very popular with the Portuguese immigrant community in Canada. Most games take place on weekends. While there are 18 teams in the Superliga, there are three particularly popular ones: Benefica, Sporting and Porto FC. Games between these three are particularly popular and are known as Derbies.
[19] FPTV owns the rights to Superliga games for Canada. SPT, based in New Jersey, holds the rights for the USA. The Portuguese national broadcaster, RTP, has the right to transmit one Superliga game every weekend, but it does not have the right to transmit Derbies. These can be received free over the air, and incidentally are excluded from the order of Mr. Justice Campbell. Since November 24, 2005, RTP has been licensed by the CRTC to transmit directly in Canada. To receive either SPT or RTP signals, one needs a large dish antennae having a diameter of four feet or more.
[20] Superliga games shown on TV, if emanating from the US, will display the SPT logo, while those emanating from Canada will show the FPTV logo. Games directly transmitted by the Portuguese national broadcaster will only show the RTP logo.
[21] FPTV shows the Superliga games via its own pay-per-view channel on Roger's cable or via a special channel on Bell ExpressVu. A person can subscribe for that channel on an individual basis, or if it is an establishment, it contracts directly with FPTV. Each receiver is coded and Bell ExpressVu can control whether one receives a personal signal or an establishment signal. It will only code a receiver to receive an establishment signal if FPTV has advised it that the owner of the receiver has signed a contract with FPTV. The establishment fee is considerably higher than the personal fee and is roughly based on the number of persons to which the establishment can serve liquor under its liquor license.
[22] 120 Inc.'s restaurant, New Casa Abril, is located at 475 Oakwood Ave. It has three levels and two entrances. The main entrance is from the street and a side entrance is from the parking lot. The side entrance has a sign "Sports Bar" over it and leads directly to the basement. The main floor is for general dining and the upper floor is used for private dinners.
[23] The downstairs, which has a large screen TV, functions as a sports bar, and working men's luncheon during the day and is used for large private functions in the evening. There is no record of a contract between Januario Barros or 120 Inc. and FPTV or Bell ExpressVu.
Plaintiff's evidence
Witness Aires da Silva
[24] Mr. da Silva testified that he had first visited New Casa Abril in November 2004. He saw a Superliga game being shown on the large TV. He identified himself to the owner, Mr. Januario Barros, advised him of the need for a license to show Superliga games, and tried to sign him up for the service. Januario Barros was too busy to attend to him, left him alone and ignored him. Eventually Mr. da Silva left his business card and left. Subsequently, after initial warning letters, this litigation commenced.
[25] Mr. da Silva testified that he took pictures of the roof of New Casa Abril on September 10, 2004 ( Tab 10 Exhibit 1of Plaintiff) clearly showing two large dish antennas of the type needed to receive STP or RTP signals. He took further pictures of the roof in April 2006 which show at least one of the large dish antenna still standing erected (Tab 12 of Exhibit 1 of Plaintiff).
[26] Mr. da Silva tried to visit New Casa Abril another Saturday, October 29, 2005, when a Derby was being shown. He testified that he heard the announcers from outside and he recognized them as the two announcers who traditionally give the play-by-play for Superliga matches.
[27] He followed another customer down the stairs to the sports bar. Before he could enter the room, Januario Barros saw him, grabbed the remote control and turned the TV off. As a result, he never saw what game was on the screen and whose logo was being displayed on the upper margin of the screen.
Witness Ben Falcone
[28] Mr. Falcone is the son-in-law of the owner of FPTV. He testified that at the request of Mr. da Silva, he visited New Casa Abril on September 10, 2005, a day a Derby was being transmitted. He tried to go to the sports bar but found the door locked. He then met an acquaintance, a woman called Denis Germanez, from Brazil (who has since returned to that country). She gained access to the building and he followed her. He consumed a meal, and also ordered beer, coffee and soda water. He submitted an undated invoice reflecting such purchases totalling $ 25.66 and a Visa slip bearing the date of September 10, 2005. He also identified a banking printout of his Visa account that indicates the amount was charged September 11 and posted September 12, 2005. He testified that in the company of roughly 20 people he saw the whole game on the large screen TV. The screen on top clearly displayed the SPT symbol, indicating to him that the signal for the game shown came from the US rights holders to the Superliga.
Defendant's evidence
Januario Barros
[29] Januario Barros testified that he has operated restaurants for more than twenty years. He denies having ever shown any Superliga games other than RTP games in his restaurant. He admitted that the restaurant had antennae capable of receiving RTP games. He claims they came with the restaurant and while initially used, they no longer work and have been dismantled, but not removed from the restaurant.
[30] He stated that he was never served with the original order of Justice Campbell and that sometime in February he found it on the counter. If it was delivered on February 21, 2005, as the affidavit of service alleges, he was not there as that was a Monday and the restaurant is closed on that day and it is also his day off. Once he found the order on the counter, he ignored it, as it did not display his name or that of 120 Inc.
[31] He asserted that as Saturdays are his most lucrative days, it makes no business sense to close the doors of the restaurant or any part thereof on Saturday. The sports bar is primarily a lunch room for working men who come there in their working clothes, to do business, and to watch news, soaps and sports. Superliga games, other than RTP games, have never been shown there. He admits the RTP games that were shown were received via the Globecast large dish antenna on the roof of the restaurant. He denied having ever seen Mr. da Silva or Mr. Falcone in his restaurant. He categorically denies ever having shown Superliga games since early September 2005 when he took the large dish antenna down. He denies having ever shown Superliga games via SPT or the Bell ExpressVu signal.
Witness George Gomes
[32] George Gomes, who has worked for Januario Barros since 1992, testified similarly that he has never seen the sports bar nor the restaurant closed on a Saturday. He would know as he worked all Saturdays in 2005, except for one week in February when he was on holidays. He claims never to have been on the roof and has no knowledge of the antenna located there. He also claimed that no Superliga game was ever shown on the large screen in the sports bar since July 4, 2005.
Witness Jose Gomes
[33] Jose works as a part time waiter in New Casa Abril on weekends. He testified that most Saturdays there is a party downstairs in the evening which would require setting up the tables in the afternoon. There would be no time to show Superliga games at 4:30 as Mr. Falcone suggested.
[34] He also doubted that one could hear a TV broadcast from outside. The volume would have to be on so loud as to make the rest of the restaurant unusable. He had no specific recollection as to September 10, 2005.
Witness Angelo Rocha
[35] Mr. Rocha is a TV producer and frequent customer of New Casa Abril. Januario Barros is one of his clients to whom he sells advertisements on his show. He goes frequently to New Casa Abril on Saturdays. He never saw a Superliga game there. He admits he sees the games at his soccer club.
Witness Joao Goncalves
[36] Mr. Goncalves works in construction. He testified that he is a steady customer at New Casa Abril. He likes to go there on Saturday noon and afternoons as he can go in his work clothes and conduct business while eating. He never saw any Superliga games there.
[37] Much of the court's time was spent on evidence as to the accounting and VISA system used by New Casa Abril. Januario Barros introduced a sales invoice from September 9, 2005 for a customer who consumed exactly the same items as Mr. Falcone and was charged the same amount of $ 25.66 and also paid by Visa. It is the defendant's allegation that Mr. Falcone must have attended on September 9, 2005 not the 10th as alleged. However under cross-examination, it emerged that complete Visa billings for both September 9 and 10 are not available. Thus there is no conclusive evidence, either way whether Mr. Falcone was there on the September 9 or 10, 2005 or if on two successive days two different customers ordered the same food and paid by Visa.
Findings
[38] On the basis of the testimony and the exhibits I find the following.
[39] The defendant Januario Barros had knowledge of the order as of July 27, 2005. He was served personally with an order trying to delete his name and substitute the name of his corporation. As the owner of the corporation, he now cannot plead ignorance as to the order or the persons that it is meant to affect (see CHUM Ltd. v. Stempowicz (c.o.b. Lizard King's Playhouse), 2005 FC 611).
[40] Similarly, 120 Inc. knew that the order of Justice Campbell applied to it the moment Januario Barros, its president and owner, was served with the motion to substitute the corporation's name for that of Januario Barros Abreu cob as New Casa Abril. Through an exchange of letters between solicitors, 120 Inc. consented as of September 9, 2005 to the order which Prothonotary Milczynski signed on September 12, 2005. The knowledge of its owner and president regarding the substitution motion (having the effect of adding 120 Inc. as a party) can be imputed to it, notwithstanding that 120 Inc. was not party to the original proceedings and was only added on September 12, 2005.
[41] As to the means, Januario Barros himself testified that the large dish antenna on top of his restaurant had been used to receive the RTP signal. It is undisputed that an antenna that can receive the RTP signal can also receive the SPT signal.
[42] Two specific instances of showing Superliga matches at the New Casa Abril are alleged: September 10, 2005 and October 29, 2005.
September 10, 2005
[43] As to the September 10, 2005 incident, the evidence is far from clear. Mr. Falcone testified that he had seen a Derby on September 10, 2005 in New Casa Abril. It is undisputed that a Derby was shown that day. The importance of a Derby is that RTP had no rights to show Derbies. In any event, he testified that he saw the STP logo on the screen. The corroborating evidence for his visit is:
a. an undated invoice for $26.55;
b. his Visa slip showing an amount of $26.55 being charged together with a tip resulting in a total charge of $30.00. The slip bears the date of September 10, 2005, which by his own admission he added, as the restaurant apparently left it blank; and
c. his Visa account statement showing that an amount of $30.00 was transacted by New Casa Abril on September 11, 2005 and posted on September 12, 2005.
[44] On the other hand, Januario Barros testified that he never showed Superliga matches other than those transmitted by RTP. He also asserted, quite reasonably, that he never locked his restaurant on a Saturday as this was his most lucrative day.
[45] He also produced an invoice generated by his computer dated September 9, 2005 for the same items as consumed by Mr. Falcone in the amount of $26.55 and also paid by Visa.
[46] He also produced something called Z slips (which are the total amounts for all items sold by New Casa Abril) for September 9 and September 10, 2005. Attached to each Z slip are the individuals bills, that comprise the total amount, as registered on the restaurant's computer. While the Z slip for September 10, 2005 indicates that 8 bills were paid by Visa, only 6 individual Visa-paid bills are attached. The September 9, 2005 Z slip indicates 2 payments were made by Visa and 2 individual Visa-paid bills are attached. The September 9, 2005 Z slip has attached to it an individual sales bill for $25.66 paid by Visa and specifying items like the ones shown on the undated invoice supplied by Mr. Falcone. The September 10, 2005 Z slip has no such individual bill.
[47] George Gomes categorically denied all knowledge about antennas on the roof. He claimed the restaurant only showed soaps and news. He denied seeing a Superliga game in the restaurant after July 2005. In all his years working at New Casa Abril, it was never closed on a Saturday.
[48] Similarly, the three other witnesses could not recall ever seeing New Casa Abril closed on a Saturday. None of the four witnesses had, however, a specific recall of September 10, 2005.
[49] I am unable to conclude that the Plaintiff has proven beyond a reasonable doubt that a Superliga game was shown on September 10, 2005 due to the conflicting evidence presented to me as:
a. the corroborating evidence to Mr. Falcone's testimony is not conclusive. I an unable to determine when he incurred the outlay of $25.66 at New Casa Abril.
b. The evidence of Mr. Falcone that the restaurant was locked on September 10, 2005 is also inconclusive. While Mr. Falcone testified that the door to the sports bar was locked when he first tried to enter New Casa Abril, the testimony of Januario Barros and Mr. Gomes is that the restaurant is never closed on Saturdays as it is the restaurant's busiest day. The evidence of the customers was also that New Casa Abril is open on Saturdays. Logic dictates that a business would not close on its busiest day. Furthermore, Januario Barros testified he has not shown Superliga games since early September 2005 while Mr. Gomes testified no Superliga games were shown in the sports bar since July 2005.
[50] The Plaintiff has to meet its burden proving that the Plaintiff showed a Superliga game on September 10, 2005. Given the conflicting evidence of when the meal was consumed and whether the sports bar was locked on September 10, 2005, as cited above, the Plaintiff has not met that burden.
October 29, 2005
[51] I cannot find that the showing of the Superliga game on October 29, 2005 was proven beyond a reasonable doubt. Mr. da Silva only heard a broadcast but he never saw a screen or a logo. There was also conflicting evidence as to whether a broadcast could be heard from outside the restaurant. Given this was the only evidence, I find that breach of the order was not shown as to this incident.
Summary
[52] As mentioned before, the jurisprudence provides that in cases of contempt, the Court requires strict compliance (strictissimi juris in the words of Valmet, supra) in terms of establishing all elements constituting contempt.
[53] With respect to both the Defendant and Januario Barros, the Plaintiff while establishing knowledge and means, has not established beyond a reasonable doubt that on either September 10, 2005 or October 29, 2005 the terms of Justice Campbell's and Prothonotary Milczynski's Order were breached by the Defendant or Januario Barros.
[54] Consequently, the motion cannot succeed due to these defects.
[55] The Plaintiff also alleges that the Defendant and Januario Barros breached paragraph 2 of Justice Campbell's order by failing to deliver the serial numbers of satellite dishes and decoding equipment. However, as the show cause order of Justice Russell only refers to the showing of Superliga games and not to the serial numbers, the failure to live up to this part of the Campbell order cannot be part of this application for a contempt order. If the Plaintiff wanted to make it part of this motion, he should have asked for that relief when he appeared before Justice Russell.
[56] Accordingly, this application motion will not succeed.
ORDER
THIS COURT ORDERS that this application be dismissed with costs awarded in favour of the Defendants.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-212-05
STYLE OF CAUSE: FPTV et al.
v. New Casa Abril et al.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 12 and 19, 2006
REASONS FOR
ORDER AND ORDER: von FINCKENSTEIN J.
DATED: July 6, 2006
APPEARANCES:
| Kevin W. Fisher Kristine Anderson |
FOR THE PLAINTIFFS |
| Julian Binavince |
FOR THE DEFENDANTS |
SOLICITORS OF RECORD:
| Basman Smith LLP Toronto, ON |
FOR THE PLAINTIFFS |
| Ricketts, Harris LLP Toronto, ON |
FOR THE DEFENDANTS |