Law Times

PAGE 14 CASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. FEDERAL COURT OF APPEAL Industrial and Intellectual Property Publication done without consent of respondent COPYRIGHT Respondent claimed that appellants infringed copyright in his literary works, particularly "Farmans" and "Talikas" "Farmans 1957-2009 - Golden Edition" included literary works covered by respondent but claimed that respondent gave consent to publica- tion. Book presented to respondent at 1992 Mehmani ceremony. It had been printed by appellants few days prior. No indication as to who print- ed book or prepared compilation and no notice given to respondent, or anyone within his organization, of intention to seek respondent' by copyrights owned consent to reproduction, distribu- tion and sale of copyrighted literary work included in book. No evidence respondent knew or ought to have known that book not simply com- pilation printed for family' s use. Respondent applied for sum- mary judgment on basis there was no possible genuine issue whether respondent gave consent. Motion judge granted motion for summary judgment and permanent injunc- tion precluding publication of Golden Edition and accompanying MP3 audio bookmarks. Appellants' appeal dismissed. Not disputed that consent pursuant to Copyright Act (Can.), could be either express or implied. Test to be applied objec- tive with focus on whether owner of copyright can be presumed to have consented to otherwise infringing actions. Subjective belief in consent not particularly relevant. Evidence established there was no genu- ine issue with respect to consent. Respondent filed material indi- cating he encourages followers to reflect on guidance he provides and believes that availability and level of circulation of his teachings not s personal . Appellants admitted that satisfactory but these facts insuf- ficient to establish consent. Only inference to be drawn on evidence was that publication of Golden Edition done without consent of respondent. Appellants did not establish any defence based on lach- es, detrimental reliance or acquies- cence. Facts did not establish that respondent had appropriate knowl- edge of appellants' activities at rel- evant time. Aga Khan v. Tajdin (Jan. 16, 2012, F.C.A., Nadon, Sharlow and Gauthier JJ.A., File No. A-59-11; A-60-11) Decision at 329 D.L.R. (4th) 521, 199 A.C.W.S. (3d) 1280 was affirmed. 211 A.C.W.S. (3d) 440 (13 pp.). COURT OF CANADA SUPREME Consumer Protection Notification conveyed impression that appellant won grand prize TRADE PRACTICES LEGISLATION Appellant Sweepstakes Notification" suppos- edly signed by manager. Coloured boxes referred to Time magazine leading to inference it was sent by respondent Time. Notification contained exclamatory sentences in bold uppercase letters to catch reader' received "Official had won large cash prize. Sentences combined with conditional clauses in smaller print, some of which began with "If you have and return the Grand Prize winning entry in time" s attention by suggesting he requirement to validate entry by returning reply coupon which offered subscription to Time maga- zine. Appellant subscribed but did not receive prize. When he con- tacted Time, he was informed that Notification merely invitation to participate and that alleged man- ager only "pen name" . Contest conditions included motion to institute proceedings, alleging contraventions of ss. 219 and 228 of Consumer Protection . Appellant filed These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. Act (Que.). Alleged violation of s. 219 lay in fact that Notification false- ly stated appellant was winner, while alleged violation of s. 228 related to Time' lant might not be winner. Quebec Superior Court allowed action in part, finding Notification contra- vened Act, setting value of appel- lant' fixing punitive damages at $100,000. Time' s failure to reveal appel- Court of Appeal. Appeal to Supreme Court of Canada allowed in part. Pursuant to Act, merchants, manu- facturers and advertisers responsible for veracity of information they pro- vide to consumers. Main objectives of Title II, "Business Practices" protect consumers from false or misleading representations. Section 218 provides that in determining whether representation constitutes prohibited practice, general impres- sion it gives, and literal meaning of terms used to be taken into account. "General impression" conveyed by representation must be analyzed in abstract, without considering per- sonal attributes of consumer. Test is that of first impression. In case of false or misleading advertising, general impression is one a person has after initial contact with entire advertisement, and relates to both layout and meaning of words used. In Quebec consumer law, "average consumer" means someone not particularly experienced at detect- ing falsehoods or subtleties in com- mercial representations. "Credulous and inexperienced" describe average consumer. "Credulous" reflects fact that average consumer prepared to trust merchants on basis of general impression conveyed by advertise- ments but does not suggest average consumer incapable of understand- ing literal meaning of words used if general layout does not render words unintelligible. Notification conveyed general impression that appellant won grand prize. Even if no false statements, Notification riddled with misleading representa- tions, contrary to s. 129. Nor were contest rules apparent, thereby vio- lating s. 228. Section 272 establishes scheme to sanction prohibited prac- , to s moral injuries at $1,000 and s appeal allowed by Quebec tices by means of civil proceedings instituted by consumers in accor- dance with principles governing application of Act and rules of gen- eral law. Legal interest depends on existence of contract to which Act applies. Consumer does not have to prove fraud; recourse based on premise that failure to fulfill obliga- tion imposed by Act gives rise to absolute presumption of prejudice. Prohibited practice must be one capable of influencing consumer' behaviour with respect to forma- tion, amendment or performance of contract. When requirements met, court can conclude that pro- hibited practice deemed to have had fraudulent effect on consumer and contract so formed, amended or performed constitutes, in itself, prejudice suffered by consumer. Recourse in damages, whether contractual or extracontractual, not dependent on specific contractual remedies in s. 272. Claim for extra- contractual compensatory dam- ages available, since fraud commit- ted during pre-contractual phase is civil fault that can give rise to extra- contractual liability. Presumption means that consumer does not have to prove merchant intended to mis- lead. Appellant proved sufficient nexus between prohibited practices of Time and subscription contract. Trial judge found appellant would not have subscribed to magazine had he not read misleading docu- mentation. Notification deemed to have had fraudulent effect on appel- lant' s conduct constituted civil fault that triggered extracontractual liabil- ity. Trial judge did not err in find- ing that Time' s decision to subscribe. Time's injuries to appellant or in awarding appellant $1,000 for those injuries. Section 272 of Act establishes no criteria or rules for awarding puni- tive damages; such damages must be awarded in accordance with Civil Code of Quebec and must have pre- ventive objective. Court must con- sider whole of merchant' s fault caused moral Punitive damages justified but not in amount of $100,000. Trial judge erred in considering Charter of French language (Que.), and pat- s conduct. rimonial situation of Time when assessing punitive damages. Award of $15,000 was sufficient. Time inc. v. Richard (Feb. 28, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Cromwell JJ., File No. 33554) Decision at 187 A.C.W.S. (3d) 86 was reversed in part. 211 A.C.W.S (3d) 321 (121 pp.). ONTARIO CIVIL CASES City received access to information request for disclosure of every invoice submitted for reimbursement by particular municipal employee for use of paid toll highway. City agreed to partial disclosure, redacting entry and exit points on highway as well as times of entry and exit. Requester appealed decision to withhold infor- mation to Information and Privacy Commissioner. Commissioner ordered city to release withheld information. Commissioner agreed that withheld data met definition of "personal information" but found that it fell under one of enumer- ated exceptions, namely benefits received by employee in addition to base salary. Commissioner rejected city' information" but fell under one of enumerated exceptions Data met definition of "personal Administrative Law JUDICIAL REVIEW could reveal employee's where- s argu- s argument that information abouts and should remain redact- ed for safety reasons. City' ment that individual's whereabouts not "benefit" under s. 14(4)(a) of Municipal Freedom of Information and Protection of Privacy Act (Can.), also dismissed. City' cation for judicial review dismissed. Existing jurisprudence indicat- ed standard of reasonableness applied to commissioner' s appli- Reasonableness concerned mostly with existence of justification, trans- parency and intelligibility within decision-making process but also whether decision falls within range of possible, acceptable outcomes. s decision. April 30, 2012 • lAw Times Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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