A-418-80 
Société pour l'Avancement des droits en audio-
visuel (SADA) Ltée (Plaintiff) (Respondent) 
v. 
Collège Édouard-Montpetit (Defendant) (Appel-
lant) 
Court of Appeal, Pratte and Ryan JJ. and Lalande 
D.J.--Montreal, November 12, 1980. 
Practice -- Interlocutory injunction — Copyright infringe
ment - Appeal from decision dismissing appellant's applica
tion to rescind ex parte order on application for injunction 
Application for injunction made without notice to adverse 
party -- Appellant submits that the order is invalid as grant
ing an injunction ex parte for a period exceeding 10 days, 
contrary to Rules 469 and 470 — Respondent relies on Rule 
321 as authorizing the Trial Judge to exempt it from giving 
notice of its motion for injunction — Appeal allowed 
Federal Court Rules 321, 330, 469, 470. 
APPEAL. 
COUNSEL: 
R. Trudeau and C. Décarie for plaintiff 
(respondent). 
G. Trépanier and F. Brissette for defendant 
(appellant). 
J. Laurent for intervenors Collège de Rose-
mont, Collège de Lévis-Lauzon, Collège de 
Limoilou, Collège de Shawinigan, Collège 
Régional du Saguenay-Lac St-Jean, Collège 
de Chicoutimi, Collège Régional du Sague-
nay-Lac St-Jean, Collège de Jonquière, Col-
lège François-Xavier Garneau, Collège de 
Maisonneuve, Collège de Valleyfield, Collège 
du Vieux-Montreal, Collège Ahuntsic, Col-
lège de Ste-Foy, Collège de Montmorency. 
SOLICITORS: 
Martineau Walker, Montreal, for plaintiff 
(respondent). 
Brissette & St-Jacques, Longueuil, for 
defendant (appellant). 
Guy, Vaillancourt, Mercier, Bertrand, Bour
geois & Laurent, Montreal, for intervenors 
Collège de Rosemont, Collège de Lévis-Lau-
zon, Collège de Limoilou, Collège de Shawini-
gan, Collège Régional du Saguenay-Lac 
St-Jean, Collège de Chicoutimi, Collège 
Régional du Saguenay-Lac St-Jean, Collège 
de Jonquiere, Collège François-Xavier Gar-
neau, Collège de Maisonneuve, Collège de 
Valleyfield, Collège du Vieux -Montréal, Col-
lège Ahuntsic, Collège de Ste-Foy, Collège de 
Montmorency. 
The following is the English version of the 
reasons for judgment delivered orally by 
PRATTE J.: On May 26, 1980 the respondent 
brought an action against the appellant for 
infringement of copyright. On the same day it 
applied to the Trial Division for an order enjoining 
the appellant: 
(1) to preserve certain videotapes and other 
items which the respondent proposed to use as 
evidence at the trial, 
(2) to allow the respondent's representatives to 
enter the appellant's premises in order to pre
pare a list of films copied by the appellant, and 
(3) to cease infringing the respondent's copy
right. 
The respondent made this application without 
notice to the appellant. The application was never
theless granted at the hearing by Decary J., who 
stated that his order would remain in effect 
[TRANSLATION] "until final judgment is rendered, 
unless the defendant shows cause why it should be 
rescinded, amended or suspended." 
A few days later the appellant requested Decary 
J. under Rule 330 to rescind the order he had 
made ex parte on May 26, 1980*. The Judge 
dismissed the application. It is this latter judgment 
which is the subject of the present appeal. 
It should be mentioned at the outset that coun
sel for the respondent stated at the hearing that he 
agreed that the appeal should be allowed in part. 
He admitted that rather than dismissing the appel
lant's application, the Trial Judge should have 
granted it in part by rescinding that part of his 
order concerning the preparation of an inventory 
* [No written reasons for order distributed—Ed.] 
and the prohibition on continuing to infringe the 
respondent's copyright. Counsel for the respondent 
maintained, however, that the Trial Judge was 
correct in refusing to rescind paragraphs (A) and 
(B) of his order of May 26, in which he ordered 
the appellant to preserve the evidence which the 
respondent wished to use at the trial. 
The only issue raised by this case is therefore 
whether the Trial Judge should have rescinded 
paragraphs (A) and (B) of his order of May 26. 
These paragraphs read as follows: 
[TRANSLATION] THIS COURT ORDERS THE DEFENDANT AND 
ITS LEGAL REPRESENTATIVES AND ASSIGNS TO: 
(A) KEEP, detain and preserve, until judgment has been 
rendered in this case, the audio-visual media, videotapes and 
other devices by means of which the films forming part of the 
repertoire of SADA and its principals and, without limiting 
the generality of the foregoing, the films referred to in 
paragraphs 5, 7, 9 and 11 of the statement 
of claim, which must be served with this order, may be 
performed, shown or delivered mechanically; 
(B) KEEP, detain and preserve, until judgment is rendered in 
this case, all cards, catalogues, cardexes, indexes, data proc
essing media and all documents and data recording media 
relating to its video library and films and other works in its 
possession: 
According to counsel for the appellant, this 
order was made invalidly because it is an injunc
tion granted "ex parte" for a period exceeding 10 
days, contrary to Rules 469 and 470. The Trial 
Judge should therefore have rescinded it, accord
ing to the appellant. 
The only reply counsel for the respondent was 
able to make to this argument' is that under Rule 
321 the Trial Judge could exempt the respondent 
from giving notice of its motion. This reply 
appears to me to be unfounded. Rule 321 sets out 
the general principle that motions are to be upon 
notice to the adverse party unless the Court 
decides otherwise. Rules 469 and 470 set out 
special rules for applications for an injunction: 
they must be made upon notice to the adverse 
party except in the cases provided for in paragraph 
(2) of each of these Rules, and in these exceptional 
' Counsel for the respondent agreed at the hearing that the 
appeal should succeed if, as the appellant maintained, the order 
of May 26 had been made invalidly for a period exceeding 10 
days. 
cases in which the application may be made ex 
parte, the Court may grant only an interim injunc
tion for a period not exceeding 10 days. 
I am therefore of the opinion that the injunction 
of May 26, 1980 was made in contravention of the 
requirements of Rules 469 and 470. The appeal 
must therefore be allowed. 
For these reasons I would allow the appeal with 
costs, set aside the decision of the Trial Judge and, 
rendering the judgment he should have rendered, 
grant the appellant's application with costs and 
rescind the order of May 26, 1980 in its entirety. 
* * * 
RYAN J. concurred. 
* * * 
LALANDE D.J. concurred. 
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.