Canada: Supreme Court Partially Reverses, Partially Upholds Appeal In Robinson Curiosity Case (Intellectual Property Weekly Abstracts Bulletin: Week Of December 23, 2013)

Last Updated: December 24 2013
Most Read Contributor in Canada, September 2016

Edited by Chantal Saunders and Beverley Moore and Adrian Howard


Supreme Court partially reverses, partially upholds appeal in Robinson Curiosity case

Cinar Corporation v. Robinson, 2013 SCC 73

This Supreme Court copyright decision decides issues of 1) whether a substantial part of a work is reproduced; 2) the role of expert evidence in copyright infringement cases; and 3) to assess whether the trial judge committed reviewable errors in his award of damages, including disgorgement of profits, non-pecuniary damages, and punitive damages.

In short, Robinson had sketched out a story and characters for a children's show called Robinson Curiosité. He shopped the idea to various people and companies but the show was never made. Years later the Cinar Corporation, one of the companies who had previously seen the concept, broadcast a children's show called Robinson Sucroë, and this was found to be an infringing work.

The Supreme Court describes the two works as similar, stating that "[l]ike Curiosity, Sucroë features a bearded, Robinson Crusoe-inspired protagonist who wears glasses and a straw hat. In both works, the protagonist lives on an island and interacts with other characters. There are however notable differences between the works. Many of the "side-kicks" in Curiosity are animals, whereas in Sucroë they are predominantly humans. Also, Sucroë, unlike Curiosity, features a band of marauding pirates as "villains"."

The Supreme Court agreed with the trial judge's approach for determining there was an infringement of a substantial portion of the work. The use of the expert testimony was considered to be reasonable in the circumstance. Personal liability on the part of some of the defendants but not others was upheld.

The Supreme Court overturned the Court of Appeal and ordered a disgorgement of the profits from the soundtrack that accompanied the TV show. There was no finding that the soundtrack could have been commercialized as a separate product if Curiosity had not been infringed in the first place. The soundtrack was only commercialized as a component of the television show Sucroë, which was itself created by copying a substantial part of Robinson's work.

The decision to apply the Andrews cap to non-pecuniary damages was also overturned. The Andrews cap covers non-pecuniary losses that can be recovered following catastrophic bodily injury. In this case, the shock and depression arose from a material injury and not a breach of the body's physical integrity. The Supreme Court viewed the situation to be similar to defamation, and restored the trial judge's $400,000 award for non-pecuniary damages.

The award of punitive damages was originally set at $1,000,000, reduced to $250,000 on appeal, and now increased to $500,000 by the Supreme Court. This amount was then apportioned between the parties, as it was found that punitive damages could not be awarded on a solidary, or joint and several, basis.

The Appeal judgment was otherwise upheld.

Please see also the Québec Superior Court decision, and the Québec Court of Appeal decision.

Default judgment against Pub who broadcast UFC fight stands

Domenic Pub v. Premium Sports Broadcasting Inc., 2013 FCA 288

Domenic Pub had sought to set aside a default judgment for copyright infringement but the motion was dismissed by the first Federal Court Judge who heard the motion. Domenic Pub appealed, but this was also dismissed because it was found that there were no errors requiring intervention.

The original default judgment enjoined the pub from broadcasting UFC events and ordered the pub to pay $20,000 in damages and $1,500 in costs. The Judge who heard the motion to set aside the default judgment decided that the owner of the pub had been properly served with the Statement of Claim and there was no reasonable explanation for failing to file a defence. She also found that the pub did not provide any evidence of a defence to the copyright claim, nor did the pub provide an explanation for the delay. The Court of Appeal dismissed the appeal because this was the correct legal test and no error was found.


Parliament has published amendments to the Patent Rules regarding becoming a patent agent and the Trade-mark Regulations regarding becoming a trade-mark agent. The Regulatory Impact Analysis Statement for both can be found with the publication for the Patent Rules.

Amendments to the Patent Rules regarding Final Action procedures and Re-examination proceedings were published in Part II of the Canada Gazette on December 18, 2013. The Rules will come into force on January 17, 2014.

In conjunction with these amendments, CIPO will publish a revised chapter 21 of the Manual of Patent Office Practice (MOPOP), entitled Final Actions and Post-Rejection Practice, which will also come into force on January 17, 2014.

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