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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.
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