Profekta International Inc. v. Lee et al., (1997) 214 N.R. 309 (FCA)

• Judge: Desjardins, Linden and Robertson, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 30, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 214 N.R. 309 (FCA)

Profekta Intl. Inc. v. Lee (1997), 214 N.R. 309 (FCA)

MLB headnote and full text

Profekta International Inc. (appellant/plaintiff) v. Theresa Lee carrying on business in the business name and style of Fortune Book & Gift Store (respondent/defendant)

(A-23-96)

Indexed As: Profekta International Inc. v. Lee et al.

Federal Court of Appeal

Desjardins, Linden and Robertson, JJ.A.

April 30, 1997.

Summary:

Profekta International Inc. was the exclus­ive licensed duplicator and distributor of Television Broadcasts Limited of Hong Kong's (TVB's) Asian language television programmes recorded on video cassettes for home viewing. Profekta alleged that Lee improperly copied and rented out TVB tapes without a licence. As part of a settlement in 1988, Lee had pleaded guilty to one count of copyright infringement and had been fined $50. In 1993, Profekta sent Lee a cease and desist letter which Lee ignored. In 1994, Profekta executed an Anton Piller order on Lee's premises. Profekta sued Lee under the Copyright Act for infringement of rights. Thereafter, Profekta sought summary judg­ment.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 105 F.T.R. 155, allowed the application and awarded Pro­fekta damages of $9,500, plus costs of $2,500. TVB appealed. TVB requested an increase in the award of general damages ($9,500) plus exemplary damages.

The Federal Court of Appeal allowed the appeal in part by awarding $10,000 punitive damages.

Copyright - Topic 4586

Infringement of copyright - Remedies - Damages - [See Practice - Topic 5705 ].

Damage Awards - Topic 2030.1

Exemplary or punitive damages - Copy­right infringement - [See Practice - Topic 5705 ].

Practice - Topic 5705

Judgments and orders - Summary judg­ments - Requirement that question at issue be beyond doubt - Profekta International Inc. (PFI) was the exclusive licenced dup­licator and distributor of Television Broadcasts Limited of Hong Kong's (TVB's) Asian language television pro­grammes recorded on video cassettes for home viewing - Profekta discovered that Lee was copying and renting out TVB tapes - Lee ignored Profekta's cease and desist order - Profekta obtained an Anton Piller order and recovered 326 TVB tapes from Lee's store - Profekta sued Lee for copyright infringement and sought sum­mary judgment - The trial court allowed the application where there were no issues which required disposition at trial - The trial court awarded Profekta general dam­ages of $9,500, plus costs of $2,500 - The Federal Court of Appeal allowed Profekta's appeal in part by awarding $10,000 as punitive damages.

Cases Noticed:

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620; [1981] 1 W.W.R. 289; 14 C.C.L.T. 181; 114 D.L.R.(3d) 385; 7 Alta. L.R.(2d) 1, consd. [para. 2].

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 2].

General Tire & Rubber Co. v. Firestone Tyre & Rubber Co., [1975] 2 All E.R. 173 (H.L.), refd to. [para. 2].

Consolboard Inc. v. MacMillan Bloedel (Saskatchewan) Ltd. (1983), 50 N.R. 161; 74 C.P.R.(2d) 199 (F.C.A.), refd to. [para. 2].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, consd. [para. 4].

Lubrizol Corp. et al. v. Imperial Oil Ltd. et al. (1996), 197 N.R. 241 (F.C.A.), refd to. [para. 4].

Counsel:

Gary J. McCallum, for the appellant;

John Weisdorf, Q.C., for the respondent.

Solicitors of Record:

Gary J. McCallum, Barister & Solicitor, Markham, Ontario, for the appellant;

John Weisdorf, Q.C., Barrister & Solicitor, Toronto, Ontario, for the respondent.

This appeal was heard at Toronto, Ontario, before Desjardins, Linden and Robertson, JJ.A., of the Federal Court of Appeal.

The following decision of the Court of Appeal was delivered orally on April 30, 1997, by Linden, J.A.