Hi All,
Here is the complete Oral Reasons For Judgement by the Honourable Mr. Justice Donald Brenner from a fax my wife Frances typed in. Thanks to GS2 for the Fax and Frances and THANKS to the Honourable Mr. Justice Brenner.
Notice how Bell ExpressVu convelute the CanAm name and peoples names to make it appear like its Bell against the masses. Quite some formula for destruction.
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Date: 19991210
Docket: A993004
Registry: Vancouver
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IN THE SUPREME COURT OF BRITISH COLUMBIA
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Oral Reasons for Judgment
Mr. Justice Brenner
Pronounced in Chambers
December 10, 1999
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BETWEEN:
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BELL EXPRESSVU LIMITED PARTNERSHIP
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PLAINTIFF
AND:
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RICHARD REX c.o.b. as "CAN-AM SATELLITES", RICHARD REX c.o.b. as "CAN AM SATELLITES" and c.o.b. as "CANAM SATELLITES" and c.o.b. as "CAN AM SATELLITE" and c.o.b. as "CAN AM SAT" and c.o.b. as "CAN-AM SATELLITE DIGITAL MEDIA GROUP" and c.o.b. as "CAN-AM DIGITAL MEDIA GROUP" and c.o.b. as "DIGITAL MEDIA GROUP", ANNE MARIE HALLEY a.k.a ANNE MARIE REX, MICHAEL REX a.k.a. MIKE REX, RODNEY KIBLEE a.k.a. RODKIBLER, LEE-ANNE PATTERSON, MICHELLE LEE, JAY RAYMOND, JASON ANTHONY, JOHN DOE 1 to 20, JANE DOE 1 to 20 and ANY OTHER PERSON OR PERSONS FOUND ON THE PREMISES OR IDENTIFIED AS WORKING AT THE PREMISES AT 22409 McINTOSH AVENUE, MAPLE RIDGE, BRITISH COLUMBIA, WHO OPERATE OR WORK FOR BUSINESSES CARRYING ON BUSINESS UNDER THE NAME AND STYLE OF "CAN-AM SATELLITES", "CANAM SATELLITES", "CAN AM SATELLITE", "CAN AM SAT", "CAN-AM SATELLITE DIGITAL MEDIA GROUP", "CAN-AM DIGITAL MEDIA GROUP", "DIGITAL MEDIA GROUP", OR ONE OR MORE OF THEM
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DEFENDANTS
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Counsel for the Plaintiff: K. McKenzie, D. Grunder
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Counsel for the Defendant, R. Rex: R. Peck, Q.C.
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Counsel for the Defendant, A. Halley: D. Martin
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Counsel for the Defendant, M. Lee: R. Willinofsky
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Counsel for all Defendants, except M. Rex: K. Filkow
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(1) THE COURT: The plaintiff seeks a permanent injunction or, in the alternative, an interim injunction in this matter. The plaintiff is licensed by the C.R.T.C. to broadcast direct to home (DTH) television programming via satellite to Canadian subsribers.
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(2) Canadian residents who subscribe to ExpressVu and who own an ExpressVu DTH satellite television decoding system are authorized to decode the encrypted subscription programming signals transmitted by the plaintiff and view the programming for which they have subscribed. There is one other licensed satellite DTH broadcaster in Canada called Star Choice.
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(3) Similar services operate in the United States under the names Direct T.V. and Echo Star. They are licensed by the F.C.C. and are authorized to have their encrypted subscription programming signals viewed in the United States. Counsel advise that their signals are not authorized under the F.C.C. rules to be broadcast for reception and decoding outside the U.S.
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(4) The plaintiff alleges that the defendants' business activities breach ss. 9.1(c) and 10.1(b) of the Radio Communication Act and interfere with the plaintiff's business.
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(5) The defendants are in the business of selling U.S. DTH decoder systems to Canadians and supplying them with a U.S. address and other services which allow them to subscribe for and pay for programming from U.S. DTH broadcasters. This is what, on this application, was termed "grey market activities". The plaintiff also says that the defendants have engaged in what is termed "black market activities", that is, the selling of modified DTH decoder cards that permit the decoding of U.S. DTH broadcasters' signals without any payment to the broadcasters.
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(6) The defendants have consented to a cease and desist order in respect of these latter activities. In view of that, the issue before me is whether an injunction should issue with respect to the grey market activities carried on by the defendants, either on a permanent or interim basis.
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(7) The issue in the underlying action is the interpretation of s. 9.1(c) of the Radio Communication Act; on this application the issue is whether the plaintiff has met the test for an injunction. S. 9.1(c) provides as follow:
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No person shall
(c) decode an encrypted subscription programming signal or encrypted network feed, otherwise than under and in accordance with authorization from the lawful distributor of the signal or feed.
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(8) "Lawful distributor" is defined by the Radio Communication Act as a person who has the lawful right in Canada to transmit the signal and authorize its decoding. "Subscription programming signal" means radio communication that is intended for a reception, either directly or indirectly, by the public in Canada or elsewhere on payment of a subscription fee or other charge.
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(9) It is an offence under s. 9.1(d) of the Radio Communication Act to operate a radio apparatus so as to receive an encrypted subscription programming signal or encrypted network feed that has been decoded in contravention of 9.1(c).
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(10) Section 18.1 creates a civil cause of action in favour of any person who holds an interest in the content of a subscription programming signal or network feed by virtue of copyright ownership or a license granted by a copyright owner. If loss or damages are suffered as a result of conduct that is contrary to s. 9.1(c) or (d) or s. 10.1(b), provable damages may be recovered. Such person also has the right to obtain other remedies, including an injunction, accounting, or other remedy that the court considers appropriate.
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(11) The plaintiff contends that s. 9.1(c) makes it an offence to decode any encrypted signals or feeds without the authorization of a lawful distributor, which by definition means a person who has the lawful right in Canada to transmit the signal or fee and authorize its decoding. The defendants, on the other hand, contend that s. 9.1(c) simply makes it unlawful to decode the encrypted transmissions of a lawful distributor without paying for it.
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(12) The courts in three Canadian provinces, in cases involving criminal prosecutions, have held that s. 9.1(c) does not encompass the decoding of foreign signals for which there is no lawful distributor in Canada (see R. v. Love (1997), M.J. (No. 109); R. v. Ereiser (1997), S.J. (No. 276); R. v. LeBlanc (1997), M.S.J. (No. 476)).
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(13) However the plaintiff relies on other decisions holding to me contrary in civil actions with facts very similar to the facts in the case at bar. The latest of these decisions is a decision of Mr. Justice Nordheimer of the Ontario Supreme Court of Justice, issued October 5, 1999, unreported, Court File 99CV174995.
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(14) Mr. Justice Nordheimer heard an application by the plaintiff to restrain a similar activity in Ontario. At paragraph 15, Nordheimer J. turned to the question as to whether an interlocutory injunction should be granted. After setting out the test and referring to s. 9.1(c) and (d) of the Radio Communication Act, at paragraph 18, he stated:
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Further, the type of activities engaged in by the defendants here have already been found in other proceedings to offend the aforementioned provisions of the Radio Communication Act.
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He then referred to a 1997 decision of Mr. Justice Gibson in the Federal Court, ExpressVu Inc. v. NII Norsat International Inc. (1997), F.C.J. (No. 10004), which was affirmed on appeal.
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(15) In Norsat Mr. Justice Gibson had before him a similar civil case and, when one reviews his decision, it is apparent that he, in turn, adopted the earlier analysis of a Provincial Court judge in Alberta, Jude LeGrandeur, with respect to the proper interpretation of s. 9.1(c). At page 16 of his reasons, Mr. Justice Gibson sates:
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In my analysis of the application of the above-quoted expansion of a portion of s-s. 9.1 on the facts before me, I adopt much of the analysis of His Honour Judge J. LeGrandeur in the Quality Electronics case cited earlier.
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He the