T-1890-83
B. Anne Cameron and Nancy Colbert and
Associates (Plaintiffs)
v.
Ciné St-Henri Inc., Nielsen-Ferns International
Limited, Société Radio-Canada, Office national
du film, Institut québécois du cinéma, Société de
développement de l'industrie cinématographique
canadienne and Famous Players Ltd. (Defend-
ants)
Trial Division, Walsh J.—Montreal, October 24;
Ottawa, November 3, 1983.
Copyright — Practice — Whether, in spite of alleged copy
right assignment agreement, writer's copyright in work for
television series infringed by motion picture — As question of
jurisdiction merely raised in argument and dependent on care
ful examination of agreement, matter to be determined at later
stage — Plaintiff B. Anne Cameron's agent struck from
record, having no interest in copyright as such — Admissibili
ty of affidavits — On motion to strike, presumption of truth of
allegations in statement of claim rebuttable where affidavit
evidence showing falseness of essential allegation — Extent of
particulars to be ordered in action for infringement of copy
right in literary work — Pleadings and particulars to be as
succinct as possible — Other motions for particulars granted
with directions as to extent — Copyright Act, R.S.C. 1970, c.
C-30, s. 12(4) — Federal Court Rules, C.R.C., c. 663, RR.
341, 419(2).
Practice — Motion to strike pleadings — Admissibility of
affidavit — Affidavit argumentative but containing material
on which motion based — Assumption that allegations in
statement of claim true on motion to strike — Assumption not
to be made if evidence in supporting affidavit showing essen
tial allegation false or misleading.
Jurisdiction — Trial Division — Whether action based on
copyright infringement or for damages for breach of contract
— Proceedings not struck for lack of jurisdiction where
merely raised in argument — Co-plaintiff struck from pro
ceedings on strict interpretation of Court's jurisdiction where
party lacking standing.
These are a series of motions presented in an action to
determine whether there was, in spite of what could be a
copyright assignment agreement, infringement of a writer's
copyright in his work for a television series when it was
allegedly incorporated in a motion picture on the same subject.
Held, the motions result in the following orders. A motion to
declare inadmissible an affidavit produced in support of a
motion on the grounds that it is argumentative should be
dismissed because it contains material upon which the motion is
based. A motion to declare another affidavit inadmissible on
the grounds that it is introducing evidence on a motion to
strike, contrary to Rule 419(2), is also dismissed because the
contentious paragraph of the document produced in the affida
vit is already before the Court and because it is relevant to the
determination of the question of whether this Court has juris
diction, an issue which should be decided as early as possible.
An added reason is that the affidavit clearly contradicts an
essential allegation contained in the statement of claim. While
it is a well-recognized presumption that, on a motion to strike,
the allegations in the statement of claim are true, it may be
rebutted when there is affidavit evidence showing that one of
the essential allegations is false.
While it is possible that the Court lacks jurisdiction over the
subject-matter itself, the proceedings should not be struck on
that ground as the issue depends on a careful examination of
the agreement, which should be done at a later stage, especially
since the defendants did not specifically seek to strike the
proceedings on that basis but merely raised the issue in argu
ment. The motion to strike plaintiff Cameron's agent from the
record is allowed as it has no interest in the copyright as such.
The motion for particulars is allowed in part. It raises serious
questions as to what particulars can or should be ordered in an
action for infringement of copyright in an artistic or literary
work. The cases on this question, while not extensive, were
somewhat contradictory. The patent law cases holding that it is
insufficient merely to allege infringement are of little assistance
as it is possible to be more precise concerning patent infringe
ment. In the case of a literary work, there may be hundreds of
passages in respect of which a claim for infringement might be
made and it would impose an intolerable burden on a plaintiff
at the pleading stage to have to list them and be restricted to
such list. The plaintiff is required to give particulars sufficient
ly extensive to establish a prima facie cause of action, which
may be accompanied by the phrase: "without limiting the
generality of the foregoing". The pleadings and the particulars
provided with respect to them should be as succinct as possible.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Sweet v. Maugham (1840), 11 Sim. 51; 59 E.R. 793
(H.C.Ch.); Starr and Crowe-Swords v. Northern Con
struction Co. Ltd. et al. (1956), 16 Fox Pat. C. 42
(B.C.S.C.).
COUNSEL:
J. M. Banfill, Q.C. and S. N. Dans for
plaintiffs.
D. W. Seal, Q.C. and L. E. Seidman for
defendant Ciné St-Henri Inc.
S. E. Barry for defendants Société Radio-
Canada and Office national du film.
M. H. Cooper for defendants Institut québé-
cois du cinéma, Société de développement de
l'industrie cinématographique canadienne and
Famous Players Ltd.
SOLICITORS:
Tilley, Carson & Findlay, Toronto, for
plaintiffs.
Seal & Associés, Montreal, for defendant
Ciné St-Henri Inc.
Deputy Attorney General of Canada for
defendants Société Radio-Canada and Office
national du film.
Engle, Schwartz, Toronto, for defendants
Institut québécois du cinéma, Société de déve-
loppement de l'industrie cinématographique
canadienne and Famous Players Ltd.
The following are the reasons for order ren
dered in English by
WALSH J.: A series of motions were presented
and argued simultaneously in this matter, defend
ants being represented by three different attorneys,
one representing Ciné St-Henri Inc., another
representing defendants Société Radio-Canada
and l'Office national du film, and a third repre
senting l'Institut québécois du cinéma, la Société
de développement de l'industrie cinématogra-
phique canadienne and Famous Players Ltd. Since
the defences of all defendants will not be identical
the motions presented raise different issues, but to
some extent overlap each other so that an order
issued on the motion of one group of defendants
may also be of benefit to the other defendants,
notably with respect to the jurisdiction of the
Court and with respect to particulars. While sepa
rate orders must be issued on each motion in view
of the different issues raised by some of the
defendants, it is not desirable that there should be
duplication. These reasons will therefore deal in
general with all the issues raised, and the separate
orders will be based on them.
The motion most fully argued in the interest of
all defendants was that on behalf of Ciné St-Henri
Inc. to whom defendant Nielsen-Ferns Interna
tional Limited assigned its rights in its agreement
of February 20, 1979 with plaintiff B. Anne Cam-
eron. This motion seeks to strike certain para
graphs of plaintiffs' amended statement of claim
as disclosing no reasonable cause of action, and in
the alternative for particulars with respect to a
number of paragraphs of it, enumerated in the
order to be rendered. Moreover it seeks to strike
Nancy Colbert and Associates as co-plaintiff in
the action, and during the course of argument
raised the issue of jurisdiction of this Court over
the subject-matter of the action itself, although no
motion was made for leave to file a conditional
appearance for this purpose.
In the affidavit of Marie Josée Raymond of
September 13, 1983, supporting the motion, para
graph 7 states that in the contract referred to in
paragraph 10 of the amended statement of claim,
paragraph 23, subparagraph (a) reads as follows:
... the parties are entering into this agreement as employer and
employee and, ... all rights in and to the proceeds and results
of the writer services arising in the course of the producer's
employment of the writer hereunder shall be the exclusive
property of the producer, the producer being the author thereof
and being entitled to the copyright therein together with all
renewals and extensions thereof.
One of the motions argued was that of plaintiffs
seeking an order that this affidavit is inadmissible
in whole or in part and should not be considered by
the Court on hearing of the motion of Ciné
St-Henri Inc. This is a somewhat extraordinary
motion suggesting that the Court should not con
sider the affidavit required in support of the
motion to strike or for particulars, and, as a result,
at the opening of the hearing counsel for Ciné
St-Henri Inc. submitted a further affidavit of
Marie Josée Raymond which merely annexes the
entire agreement of February 20, 1979 from which
the extract had been quoted in the previous affida
vit, pointing out that since the original is in plain
tiffs' possession and is referred to in the statement
of claim, the production cannot take plaintiffs by
surprise. While it is true that some of the para
graphs of the affidavit of September 13, 1983 are
argumentative and notably paragraphs 4, 5 and 6
thereof, it does contain the extract from the agree
ment (supra) in paragraph 7 thereof on which said
defendant's motion to strike is based, and is admis-
Bible, so plaintiffs' motion that it should not be
considered in deciding said defendant's motion will
be dismissed with costs.
There is considerable doubt as to whether the
second affidavit of Marie Josée Raymond pro
duced at the hearing annexing the entire agree
ment between Nielsen-Ferns International Limited
(the producer) and plaintiff B. Anne Cameron,
(the writer) should be admitted in view of the
provisions of Rule 419(2) [Federal Court Rules,
C.R.C., c. 663] which provides that "No evidence
shall be admissible on an application under para
graph (1) (a)", which is the paragraph on which
said defendant's motion, in so far as it seeks to
strike certain paragraphs of plaintiffs' action is
based, on the grounds that "(a) it discloses no
reasonable cause of action".
Said defendant Ciné St-Henri Inc. sought to
amend its motion to overcome this difficulty by
seeking an order under Rule 341 to seek a judg
ment "at any stage of a proceeding" on the basis
of the document filed in Court (i.e. the agreement)
but I do not consider that Rule to be appropriate
in the circumstances of this action, nor can it be
used as an indirect means of filing a document
which it might not otherwise be possible to file on
the hearing of this motion so this verbal applica
tion to amend is refused. However I did permit the
production of the entire agreement which will
obviously be essential to any determination of the
action, since the contentious paragraph in it on
which the motion to strike is based is before the
Court in any event, and it is clearly in the interest
of all parties to determine at an early date, if
possible, if in fact this Court has jurisdiction. This
is all the more so in view of the very surprising and
apparently totally erroneous statement in para
graph 16 of the amended statement of claim that
"It was an expressed provision of the agreement of
February the 20th, 1979, that copyright in the
work to be created by the Plaintiff, B. Anne
Cameron, would remain in her" which is in com
plete conflict with paragraph 23(a) of the agree
ment (supra).
I am well aware of the constant jurisprudence to
the effect that in considering a motion to strike the
Court must assume that all the allegations of the
statement of claim are true, and on that basis
decide whether or not there is a cause of action
disclosed by the said statement of claim. However
when the Court has before it evidence in the
supporting affidavit clearly showing that an essen
tial allegation, and in fact an allegation on which
the very jurisdiction of the Court is based, is not
true, or is at least erroneous and misleading, it
would be unreasonable to expect the Court to shut
its eyes and render judgment on the assumption
that the allegation is true.
The question of jurisdiction must therefore be
considered. Unless the action is based on copyright
infringement it is merely an action for damages
between subject and subject based on breach of
contract and within the jurisdiction of the courts of
a province.
Plaintiffs' counsel argues vigorously, (now
invoking the entire agreement the production of
which he opposed) that it incorporates the terms of
the Independent Producers Agreement which
forms part thereof. This latter is an agreement
between the Canadian Association of Motion Pic
ture Producers, the Canadian Film and Television
Association, the National Film Board and the
Association of Canadian Television and Radio
Artists covering freelance writers of theatrical
films, television programs and other productions.
This is a very lengthy and involved agreement
covering payments, rights of the parties, residuals,
etc. and is revised from time to time. The agree
ment in effect from April 1, 1978 to March 31,
1980 was that annexed to the contract of February
20, 1979. While it has since been superseded by an
agreement running from April 1, 1980 to March
31, 1983 as set out in paragraph 15 of the amend
ed statement of claim, this latter version is not
before the Court, and would, in any event, only
affect the quantum of the claim, and cannot be
used to interpret the contract made on February
20, 1979 on which the present proceedings are
based. Plaintiffs' counsel argues that clause A5 of
the Independent Producers Agreement in effect at
the time read as follows:
It is agreed that all rights negotiated under this Agreement or
in any individual contract between a writer and a producer
shall ordinarily be in the form of a licence from the writer to
the producer for a specific use during a specified term of
whatever right is in question.
and that Article A702a) and b) read:
A702 All contracts with the writer shall specify or include:
a) ownership of basic rights in the material;
b) a delineation of rights purchased;
Plaintiffs argue that all that was transferred to the
producer was a licence for the specific use of the
writer's original work for the 5-part television
series and that it was never contemplated that a
motion picture would be made incorporating plain
tiff B. Anne Cameron's work so that she never
transferred any copyright to the producer for the
use of her work for other purposes than what was
contemplated in the agreement.
It is of interest to note however that, dealing
with television productions, clause C105 read:
C105 The producer may terminate a contract at the end of
any instalment in C103 or C104, in which case any copyright
held by the writer in the work reverts to the writer.
The Independent Producers Agreement there
fore clearly does not prevent a writer from trans
ferring a copyright to her employer the producer
as was certainly done in this case, but it does
contemplate licensing the use for a specific pur
pose after which, when it has been accomplished,
the copyright reverts to the writer.
There is nothing in this which would be contrary
to subsection (4) of section 12 of the Copyright
Act' which reads as follows:
12....
(4) The owner of the copyright in any work may assign the
right, either wholly or partially, and either generally or subject
to territorial limitations, and either for the whole term of the
copyright or for any other part thereof, and may grant any
interest in the right by licence, but no such assignment or grant
is valid unless it is in writing signed by the owner of the right in
respect of which the assignment or grant is made, or by his duly
authorized agent.
Without going into further details of the terms
of the agreement of February 20, 1979 it does,
however, appear to contemplate the possibility of
the material being used for a motion picture and,
1 R.S.C. 1970, c. C-30.
in this event, the terms of payment therefor, so it
may well be that the entire copyright for all pur
poses was assigned to the producer by the agree
ment. This is not a matter for the Court to deter
mine at this stage of proceedings however.
In conclusion, with respect to this part of the
argument I find that, while it may well be that
plaintiff B. Anne Cameron, had no copyright in
the material at the time of institution of proceed
ings, and hence this Court would have no jurisdic
tion, the proceedings should not be struck on the
present motion for lack of jurisdiction, especially
as that was not specifically sought, but merely
raised in argument. I believe however that the
issue should be raised at an early date before
discoveries or other proceedings, possibly by means
of a preliminary determination of a question of
law, or a stated case, so that the jurisdiction of this
Court may be determined before further steps are
taken to proceed on the merits.
With respect to the co-plaintiff Nancy Colbert
and Associates, however, I fail to see how this
Court can be found to have jurisdiction over them.
They are agents of plaintiff B. Anne Cameron
duly authorized by her to receive all payments due
to her pursuant to the agreement of February 20,
1979. As such they, of course, have an interest in
the financial outcome of the present proceedings
and, as such, would normally be properly joined as
a party. However, they do not have any interest in
the copyright as such. Plaintiffs' counsel argued
that in a sense plaintiff B. Anne Cameron could be
said to have assigned her rights to them (if she had
any copyright rights after the agreement of Febru-
ary 20, 1979 to assign) but this argument cannot
be accepted as no written assignment was made
pursuant to subsection 12(4) of the Copyright Act
(supra).
The jurisdiction of this Court has been strictly
interpreted by recent jurisprudence, and a party
who otherwise would have no standing in the
Court to sue cannot acquire it, whether by way of
a cross-demand, third party proceeding or other
wise, or in this case by way of being made
co-plaintiff in an action brought by plaintiff B.
Anne Cameron, arising out of her alleged copy
right rights over which the Court would have
jurisdiction. The proceeds of any judgment in her
favour which might be rendered as a result of
these proceedings may no doubt have to be shared
with Nancy Colbert and Associates pursuant to
whatever agency agreement she may have with
them but that is not the concern of this Court, so
they will be struck from the proceedings as
co-plaintiffs and the style of cause amended
accordingly.
Dealing specifically now with the motion of
defendant Ciné St-Henri Inc. to strike certain
paragraphs of plaintiffs' amended statement of
claim, specifically paragraphs 17, 19, 21,
22(a),(b),(c),(d),(e),(f),(g) and (h), or in the
alternative to order certain particulars, the said
paragraphs will not be struck, but some of the
particulars sought by defendant will be dealt with,
as follows:
1. The complete address of plaintiff B. Anne
Cameron in Nanaimo. This is not required to
enable defendant to plead, and can readily be
obtained on discovery, so no answer will be
ordered.
2. These details are irrelevant, Nancy Colbert
and Associates having been struck as co-plaintiff.
3. [Paragraphs] 12(a),(b),(c),(d) and (e). While
it might appear that these dates would be known
to said defendant, plaintiff should give these dates,
if she has a record of them.
4. The agreements speak for themselves and I
have already stated that the subsequent agreement
would only perhaps be relevant with respect to
damages. No particulars ordered.
[Paragraphs] 6(a) and 8(b). The fees due to
plaintiff B. Anne Cameron are presumably those
due by virtue of the agreement and Independent
Producers Agreement with which defendant is
familiar, but if plaintiff is claiming more than this
as "fees" then particulars should be given.
[Paragraph] 7(a). Defendant is aware of what
publicity has been used so does not require
particulars.
[Paragraph] 9(a). While Nancy Colbert and
Associates is not permitted to be a plaintiff in this
Court, defendant was by notice duly acknowledged
required to make payment of sums due to B. Anne
Cameron to them so these particulars should be
given.
[Paragraphs] 8(c), 9(c) and (d). With respect to
particulars of allegations in paragraphs 22(c) and
(d) relating to exemplary damages and damages
for loss of enhancement of reputation, these will be
matters for the Court to decide after a hearing on
the merits or on a reference as to damages and no
particulars are required to enable defendant to
plead.
This leaves us with paragraphs 5, 6(b), 7(b),
8(a), 8(d) and 9(b) and 9(e) which raise serious
questions as to just what particulars can or should
be ordered in an action for infringement of copy
right in an artistic or literary work. The jurispru
dence on this issue is not extensive and somewhat
contradictory.
Plaintiff relies on the old British case of Sweet v.
Maugham 2 which held that it is sufficient for
plaintiff to allege generally that the defendant's
work contains passages that have been pirated
from plaintiff's work and the Court will compare
the two works. On the other hand defendant refers
to the case of Starr and Crowe-Swords v. North
ern Construction Co. Ltd et al. 3 in which Macfar-
lane J. in the Supreme Court of British Columbia
held that particulars of any allegation in pleadings
should be given which define the issues so that
surprise at trial may be prevented. In that case the
issue was confined to a plan adopted by defendants
which was a colourable imitation of the plan
referred to in the statement of claim.
Fox: The Canadian Law of Copyright and
Industrial Designs, Second Edition, has this to say
at page 448:
It would seem that the defendant is entitled to particulars
indicating what parts of the plaintiffs work the plaintiff alleges
the defendant has pirated and this is particularly true where the
plaintiffs work is entitled to copyright only in part ....
and again
On the other hand, there is authority to the effect that the
defendant is not entitled to particulars of the parts of his work
2 (1840), 11 Sim. 51; 59 E.R. 793 (H.C.Ch.).
3 (1956), 16 Fox Pat. C. 42 (B.C.S.C.).
that are alleged to be reproductions of the plaintiffs work; it is
sufficient to plead that the defendant's work reproduces the
plaintiffs work or a substantial part of it.
The patent law cases which require that particu
lars of infringement must be given and that it is
insufficient to merely state that there has been an
infringement are not of great assistance as it is
possible to be more precise with respect to alleged
infringement of patents.
In an action for infringement of copyright in a
literary work there may be hundreds of passages or
phrases or plot situations on which a claim for
infringement might be made and it would impose
an intolerable burden on a plaintiff at the pleading
stage of proceedings to list them all in detail and
be restricted to such a list. This is all the more true
in the present case where both the work in which
plaintiff B. Anne Cameron's copyright subsists,
and the allegedly infringing motion picture ver
sions are derived from a common source, the novel
of the late Gabrielle Roy The Tin Flute/Bonheur
d'occasion. Moreover plaintiff allegedly does not
even have the script of the motion picture, learning
of the infringement as a result of certain admis
sions by defendant's counsel in correspondence and
perhaps by viewing the motion picture.
The Court hearing the case on the merits will
eventually have to make the comparisons. On the
other hand it must be said that paragraphs 17,
19(b), 20(b), 21(a), 21(d), 22(c) and 22(f) are too
general and vague as drawn to establish a precise
cause of action to which defendant can plead.
It appears to me that, in a case such as the
present, plaintiff should be required to give par
ticulars of a number of phrases, passages or situa
tions which she claims are originally created by
her and which defendant has allegedly pirated or
copied in the motion picture version. Such particu
lars should be sufficiently extensive as to establish
a prima fade cause of action, but may be accom
panied by the phrase "without limiting the gener
ality of the foregoing" or restricting plaintiff at
trial from introducing other examples. A motion
for particulars must not be confused with an
examination for discovery. Pleadings and the par
ticulars provided with respect to them should be as
succinct as possible, and the Court record should
not be encumbered at the initial stage of proceed-
ings with what might be hundreds of pages of
particulars which really constitute the evidence to
be used at trial and which may relate more to the
gravity of the alleged plagiarism and hence the
quantum of damages for which there may well
eventually be a reference, than to be necessary to
establish plaintiffs case that there has been an
infringement.
The order on the motion of defendant Ciné
St-Henri Inc. will therefore be in accordance with
these findings.
The third motion, that of defendants l'Institut
québécois du cinéma, la Société de développement
de l'industrie cinématographique canadienne and
Famous Players Ltd. merely asks for particulars
with respect to paragraphs 17, 18, 19 and 20 of the
amended statement of claim. Paragraphs 17, 18
and 19 charge them with having produced a fea
ture film incorporating some or all of the original
work created by plaintiff for the television series,
with having provided financing for and assisted in
the said production, and with having published the
feature film without the knowledge or consent of
plaintiff. Paragraph 20 charges them, by their
agents, to have caused dissemination of publicity
attributing authorship to a person other than
plaintiff.
Counsel for said defendants admits that they
provided financing but denies that they assisted in
the production. In answer plaintiffs counsel con
tends that the agreements with them speak for
themselves and that said defendants well know the
extent of their involvement so cannot be said to be
taken by surprise. However, pleading a conclusion
arising from a contract is not the same as pleading
material facts. A general denial in a pleading
without giving any particulars is inacceptable so
said defendants must have some particulars of the
involvement in the production, assisting in some
other way than by financing, publishing the film
and dissemination of publicity in connection there
with attributing authorship to a person other than
plaintiff. Plaintiff should indicate the facts on
which she relies in making these allegations to the
extent that they are within her knowledge and not
within the sole knowledge of said defendants.
The fourth motion is a motion for particulars by
defendants la Société Radio-Canada and l'Office
national du film du Canada requesting particulars
similar to those sought by Ciné St-Henri Inc. in its
motion which has already been dealt with. Counsel
indicated said defendants have already received
some particulars and are now limiting their motion
to paragraphs 17, 20 and 22(b) of the amended
statement of claim. Paragraph 17 requests precise
particulars with respect to the alleged plagiarism
and I have already indicated in the Ciné St-Henri
motion how this should be dealt with, and limited
particulars on the same basis should be furnished
to these defendants. The same applies to the par
ticulars sought with respect to paragraph 20—in
the portion of said defendants' motion enumerated
as 20(c). With respect to 20(a) and (b) said
defendants are well aware of the publicity, if any,
disseminated by them attributing authorship to
someone other than B. Anne Cameron, and the
names of the agents who have disseminated it.
Plaintiff should give some examples of such
publicity of which she is aware, without being
limited to this, sufficient to establish that there has
been some such publicity, but defendants are well
aware of what agents if any disseminated it so
plaintiff should not be required to particularize
this. With respect to paragraph 22(b) the motion
states that this relates to paragraph (d) of the
amended statement of claim dealing with exem
plary damages and I have already indicated that
this is a matter for the Court after trial and not for
particulars. During argument counsel for said
defendants suggested that it was paragraph 22(d)
of his motion which he had in mind. If so, this
relates to paragraph 22(f) of the amended state
ment of claim and again seeks precise details of
the portion of plaintiff's work allegedly wrongfully
used which plaintiff seeks to restrain, and here
again this has been dealt with in the Ciné St-Henri
motion and need not be repeated.
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.