BC Court Upholds Worldwide Injunction Against Google – Precedence for Online Piracy

Gilbertson Davis LLPInjunction & Specific Performance, Intellectual Property0 Comments

In a recent decision from the British Columbia Court of Appeal, the Court upheld an interlocutory injunction that forced Google to prohibit any websites of an alleged distributor of counterfeit goods to appear in Google search results. Google, who is not a party to the action against the defendant, argued that the Court could only prohibit Google from listing the defendant’s websites on “google.ca”, but not on any other international sites run by Google. Google submitted that the Court could not restrain Google in its actions outside of Canada, because (a) the BC Court did not have jurisdiction to make orders about activity in other jurisdictions, and (b) the BC Court did not have jurisdiction over Google. In dismissing the appeal, the Court of Appeal confirmed that as long as the court has jurisdiction over the underlying action (which was not disputed), it will have jurisdiction over any ancillary motions … Read More

‘Innocence of Muslims’ Copyright Decision Highlights Scope of Moral Rights: Canadian vs. US Protections

Gilbertson Davis LLPInjunction & Specific Performance, Intellectual Property0 Comments

A recent high-profile United States copyright decision has highlighted the limited scope of protection granted to an artist’s “moral rights” in their creations in the United States, rights which are given broader protections in other countries, including Canada. Court Rejects Actor’s Copyright Claim This week, the 9th Circuit Court of Appeals in the United States issued an en banc decision reversing an earlier decision restraining YouTube from displaying the controversial film Innocence of Muslims. The injunction was based on the copyright claim of actress Cindy Lee Garcia, whose five-second appearance in the film was based on misrepresentations to her that an entirely different film was being produced. Her controversial lines were dubbed over her appearance in post-production without her permission. The Court initially held that Garcia did not sign away her copyright to her performance, and therefore could make a valid copyright infringement claim regarding her performance in the film, and … Read More

Gilbertson Davis LLP News – OsgoodePD Program on Shareholder Litigation and the Closely-Held Company

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorBusiness Litigation, Business Torts | Economic Torts, Closely-Held Business Disputes, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Directors' and Officers' Liability, Family Business Disputes, Gilbertson Davis LLP News, Injunction & Specific Performance, International Joint Venture, Oppression Remedies, Partnerships and Shareholder Disputes, Shareholder Disputes0 Comments

David Alderson, of Gilbertson Davis LLP attended as a faculty member of the OsgoodePD professional development program on April 7, 2015 concerning Shareholder Litigation and the Closely-Held Company. He was on the panel addressing Ethical and Professional Issues in Shareholder Disputes and Litigation. Osgoode Hall Law School said of this professional development program, “This OsgoodePD program brings together some of the country’s top commercial litigators and other experts to provide insight into key aspects of litigating these cases.”  Shareholders disputes are one of the most common and most complex disputes handled by commercial litigators and in-house counsel. The panel on Ethical and Professional Issues in Shareholder Disputes and Litigation included Paul N. Feldman of Feldman Lawyers, Tom Curry of Lenczner Slaght Royce Smith Griffin LLP and David Alderson of Gilbertson Davis LLP, with Lisa C. Munro of Lerners LLP moderating. The program is being re-broadcast on May 22, 2015 as described here. David Alderson has experience in shareholder and partnership disputes, both in arbitration … Read More

Ontario Court Given Jurisdiction over Internet Defamation Claim

Gilbertson Davis LLPCivil Litigation, Cross-Border Litigation, Information Technology, Injunction & Specific Performance0 Comments

A recurring issue in online defamation cases is the proper jurisdiction where a claim should be commenced. In many cases, the people who read the allegedly defamatory statements will be located across the planet, meaning that a publisher of such materials may find themselves having to defend claims brought far away from their actual home jurisdiction. In Goldhar v. Haaretz.com et al., Justice Faieta allowed an Ontario claim to continue for allegedly defamatory statements posted online by an Israeli-based newspaper organization. The defendants brought a motion to have the plaintiff’s claim stayed, arguing that the action should be heard in Israel, as the majority of the publication of the article was in Israel, and only 200-300 persons in Canada read the English online article. The court ultimately concluded that it did have jurisdiction over the defendants, and the plaintiff’s claim could continue in Ontario. By finding that at least some … Read More

London Court of International Arbitration (LCIA) – New Rules Include Expanded Provisions on Emergency Relief

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorArbitration, Business Litigation, Commercial Arbitration, Commercial Litigation, Copyright Infringement, Cross-Border Litigation, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments, Fashion Industry, Industrial Design, Injunction & Specific Performance, Intellectual Property, International Sale of Goods, Mareva Injunction, Of Interest to US Counsel, Preservation Orders, Textiles and Apparel0 Comments

The London Court of International Arbitration has announced that its new LCIA Arbitration Rules have been formally adopted by the LCIA Court and the LCIA Board of Directors and will come into effect on 1 October 2014. Article 9B of the new LCIA Arbitration Rules – Emergency Arbitrator provides that in the case of emergency at any time prior to the formation or expedited formation of the Arbitral Tribunal , any party may apply to the LCIA Court for the immediate appointment of a temporary sole arbitrator to conduct emergency proceedings pending the formation or expedited formation of the Arbitral Tribunal. By Article 9.14 of the New Rules, Article 9B does not apply where the parties have concluded their arbitration agreement before 1 October 2014 have not agreed in writing to ‘opt in’ to Article 9B, or the parties have agreed in writing at any time to ‘opt out’ of Article 9B. Reference should be had in this regard to … Read More

Court Grants Ex Parte Injunction Against Pipeline Protesters

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Commercial Law, Commercial Litigation, Injunction & Specific Performance0 Comments

In Enbridge Pipelines Inc. v. Jane Doe, the Applicant had an easement through a property for its gas pipeline.  The protesters (according to their social media postings) opposed further construction on the pipeline, and occupied and refused to leave the property.  The Applicant brought an ex parte (without notice) application for an interlocutory injunction prohibiting the protesters from occupying a work site on the property. The Applicant argued i) that the work on the pipeline was an immediate safety concern, ii) that any delay caused by the protesters would have serious impact on its economic concerns (the supply of oil to its customers), and iii) that the Applicant’s property rights  – the easement – were in a “privileged position”, and that a trespass to property rights is virtually always remedied by an injunction. The Judge found with respect to i) that there was not an immediate safety concern, but with respect to ii) … Read More

Motion to Set Aside Default Judgment Denied in Internet Defamation Case

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Injunction & Specific Performance0 Comments

The Ontario Superior Court of Justice in Busseri v. Doe, 2014 ONSC 819, dealt with the defendant’s motion to set aside default judgment against him in an internet defamation case.  The plaintiff brought the underlying defamation action after discovering numerous posts by the defendant on a stock-related online public forum called stockhouse.com.  Although the defendant was provided adequate notice of the lawsuit and the subsequent motion for an interim injunction against posting further defamatory statements, the defendant did not take any steps to defend in any way until it became clear that the default judgment ($200,000 + costs) would be enforced in the defendant’s jurisdiction. In considering a motion to set to aside default judgment, the Court must consider the following factors: (1) whether the motion to set aside the default judgment was brought without delay after the moving party learned of the default judgment; (2) whether the circumstances giving rise to the default judgment have been adequately explained; and (3) whether the moving party has an … Read More

Scooter Wars – Defamation Strikes Back

Andrew Ottaway, B.A. (Hons.), LL.B.Commercial Litigation, Injunction & Specific Performance, Summary Judgment0 Comments

In Motoretta v. Twist & Go Power Sports, the Plaintiff and Defendant are two rival GTA scooter stores, engaged in what the Judge called the “Toronto Scooter Wars”.  The Defendant’s Vespa dealership was terminated by the Canadian Vespa distributor.  The Plaintiff remained an authorized Vespa dealer.  The Plaintiff was suspicious that the Defendant had “bad-mouthed” it to customers on an ongoing basis.  In response, the Plaintiff hired private investigators to pose as customers at the Defendant’s store.  The private investigators recorded their conversations with the Defendant, which the Plaintiff alleged were defamatory. The Plaintiff scooter store brought an action for damages for defamation, and for a permanent injunction prohibiting the Defendant from further defaming the Plaintiff.  The action was determined by summary judgment. The Judge found that the Defendant’s statements to the private investigators had defamed the Plaintiff.  The Defendant argued that the statements did not meet the legal test of defamation because … Read More

Court of Appeal Defines Key Terms Relating to Injunctions

Andrew Ottaway, B.A. (Hons.), LL.B.Commercial Law, Injunction & Specific Performance0 Comments

In 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd. a dispute arose between the parties regarding access to a laneway, resulting in three Court endorsements referring to “interim”, “interlocutory”, “permanent”, and “mandatory” injunctive relief.  The Court of Appeal took the opportunity to clarify these key terms relating to injunctions: Interim injunction:  Pre-trial relief, which may be sought with or without notice to the other party. Argument in an interim injunction proceeding is usually brief.  The injunction is typically for a short, defined period of time. Interlocutory injunction: Pre-trial relief, again restraining a party for a limited period of time, but often for longer than an interim injunction (such as until trial or other disposition of the action).  Argument in an interlocutory injunction proceeding is typically lengthier than in an interim injunction proceeding, and involves both parties.  The test for an interlocutory injunction is set out in in RJR-MacDonald, and recognizes that the Court does not have the ability … Read More

Court Grants Interim Injunction Against Neighbour

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Commercial, Injunction & Specific Performance0 Comments

The recent Ontario Superior Court of Justice decision in Sciara v. Szpakowski, 2014 ONSC 2157, involved a dispute between neighbours over the right to use a lane between the two houses.  The lane was owned by the Respondent but the Applicants allege that they were allowed continuous use of the lane to access their backyard for many years.  When the neighbours had an argument over another matter, the Respondent threatened to construct a fence to restrict the Applicants’ access to the lane.  The Applicants sought an interim injunction restricting the Respondent from constructing a fence until their application for prescriptive easement over the lane was heard. In determining whether an interim injunction should be granted, the Court applied the test outlined by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, which was as follows: (i) is there a serious question to be determined, (ii) … Read More