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.