Date: 19980727
Docket: A-103-97
CORAM: STONE J.A.
STRAYER J.A.
DESJARDINS J.A.
B E T W E E N:
NFL ENTERPRISES L.P.
Appellant
" and "
1019491 ONTARIO LTD. c.o.b.a. WRIGLEY"S FIELD SPORTS BAR & GRILL
1099659 ONTARIO INC. c.o.b.a. GILMOUR"S SPORTS BAR & LOUNGE
358820 ONTARIO LTD. c.o.b.a. ROOKIE"S SPORTS CAFE
555858 ONTARIO INC. c.o.b.a. DUSTY"S SPORTS BAR
ROMAN COURT MOTOR INN LTD. c.o.b.a. HALFTIME SPORTS LOUNGE
750125 ONTARIO LTD. c.o.b.a. PURE PLATINUM
1104045 ONTARIO INC. c.o.b.a. RYAN"S NITE CLUB and/or
ROADHOUSE SPORTS BAR & RESTAURANT
MARIO MARCELLO TORELLI c.o.b.a. CARTOONZ and/or
CRAZY 8'S BILLIARD CLUB
1093884 ONTARIO LTD. c.o.b.a. CAHOOTS BAR & GRILLE
GORAN MALJKOVIC and MILICA MALJKOVIC c.o.b.a.
SNEAKER"S BEACH TAVERN
SHIRLEY RUTH ENNIS and TRACY ELIZABETH ENNIS c.o.b.a.
BLACK CREEK RESTAURANT & TAVERN
816178 ONTARIO LTD. c.o.b.a. STUMPY"S PIER 44 and
1006035 ONTARIO INC. c.o.b.a. HOGAN"S ROADHOUSE
Respondents
HEARD at Toronto, Ontario on Friday, July 3, 1998
JUDGMENT delivered from the Bench at Toronto, Ontario on Friday, July 3, 1998
REASONS FOR JUDGMENT BY: STRAYER J.A.
Date: 19980727
Docket: A-103-97
C O R A M: STONE J.A.
STRAYER J.A.
DESJARDINS J.A.
B E T W E E N:
NFL ENTERPRISES L.P.
Appellant
" and "
1019491 ONTARIO LTD. c.o.b.a. WRIGLEY"S FIELD SPORTS BAR & GRILL
1099659 ONTARIO INC. c.o.b.a. GILMOUR"S SPORTS BAR & LOUNGE
358820 ONTARIO LTD. c.o.b.a. ROOKIE"S SPORTS CAFE
555858 ONTARIO INC. c.o.b.a. DUSTY"S SPORTS BAR
ROMAN COURT MOTOR INN LTD. c.o.b.a. HALFTIME SPORTS LOUNGE
750125 ONTARIO LTD. c.o.b.a. PURE PLATINUM
1104045 ONTARIO INC. c.o.b.a. RYAN"S NITE CLUB and/or
ROADHOUSE SPORTS BAR & RESTAURANT
MARIO MARCELLO TORELLI c.o.b.a. CARTOONZ and/or
CRAZY 8'S BILLIARD CLUB
1093884 ONTARIO LTD. c.o.b.a. CAHOOTS BAR & GRILLE
GORAN MALJKOVIC and MILICA MALJKOVIC c.o.b.a.
SNEAKER"S BEACH TAVERN
SHIRLEY RUTH ENNIS and TRACY ELIZABETH ENNIS c.o.b.a.
BLACK CREEK RESTAURANT & TAVERN
816178 ONTARIO LTD. c.o.b.a. STUMPY"S PIER 44 and
1006035 ONTARIO INC. c.o.b.a. HOGAN"S ROADHOUSE
Respondents
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on Friday, July 3, 1998)
STRAYER J.A.
This is an appeal from a decision of the Trial Division of February 10, 1997 in which the motions judge refused the request of the appellant NFL Enterprises L.P. ("NFLE") for summary judgment against some 13 operators of taverns, bars and restaurants in the Niagara Peninsula and Hamilton, Ontario. This appeal relates to three of these establishments, namely 750125 Ontario Ltd. carrying on business as Pure Platinum, 1104045 Ontario Ltd. carrying on business as Ryan"s Nite Club and/or Roadhouse Sports Bar & Restaurant, and Goran and Milica Maljkovic carrying on business as Sneaker"s Beach Tavern. These three businesses are the respondents in the present appeal.
NFLE"s action against these businesses, filed on November 1, 195 alleged essentially the following.
| (1) NFLE is the owner by assignment of copyright in the broadcast of certain National Football League games in both the United States and Canada. |
| (2) The defendant taverns and restaurants have on various occasions displayed for the entertainment of their customers live broadcasts of Sunday home games of the Buffalo Bills football team without authorization by the NFLE, and that these displays constitute public performances of the television production of the games. |
| (3) These acts constitute a breach of the NFLE"s copyright and also involves unlawful decrypting of satellite signals in breach of the Radiocommunication Act . |
NFLE accordingly sought in its action against these defendants
| (a) a declaration that these unauthorized performances and descriptions are a breach of the NFLE"s copyright and a breach of the Radiocommunication Act ; |
| (b) damages for breach of copyright and of the Radiocommunications Act; |
| (c) interlocutory and permanent injunctions; and |
| (d) interest and costs. |
After the statements of defence of the present respondents and of other defendants in this action were filed, the NFLE applied for summary judgment. In support of its motion it filed several affidavits which attest to NFLE"s copyright in respect of the games in question and to the displays of specific Sunday home games of the Buffalo Bills in the establishments, inter alia , of the three present respondents.
While the respondents had all filed statements of defence denying the essential allegations in the statement of claim, on the motion for summary judgment only one of the three present respondents filed any affidavit evidence. This was filed by the proprietors of Sneaker"s Beach Tavern. This affidavit essentially suggests one defence: namely that Sneaker"s Beach Tavern had purchased from the National Football League the right to receive all NFL football games regardless of time or place, by a contract called a "Sunday Ticket". No documentary evidence of such a contract was produced with this affidavit. However, in another affidavit also before the motions judge sworn by Frank Hawkins on behalf of NFLE it was stated that any commercial subscribers to the NFL Sunday Ticket would have to sign a detailed document, a sample copy of which was exhibited to that affidavit.
In considering this appeal we have in mind the requirements of former rule 432.2, applicable to this case, that
| in response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest on the mere allegations or denials of the party"s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial. |
We also have in mind jurisprudence dealing with similar rules, as set out by the Court in Feoso Oil Ltd. v. Sarla (The)1
| The intention appears to be that claims or defences clearly without foundation should not take up the time and incur the costs of a trial. To this end, as Henry J. stated in Pizza Pizza, . . . both sides are required to "put their best foot forward". The responding party cannot hold back in the hope that the motion will fall of its own weight . . . . |
While in this action the refusal of the motions judge to issue summary judgment against the other defendants may well have been justified on the record in respect of them, we are of the view that he erred in refusing summary judgment against these three respondents. He stated two reasons for doing so.
First he found that there was no evidence in respect of the NFLE"s broadcast or rebroadcast rights in Canada. The evidence of Frank Hawkins, with relevant documents attached, however, does demonstrate a prima facie claim of copyright entitlement by NFLE and this is supported by the statutory presumption in subsection 34(4) of the Copyright Act. No geographical limitations appear on those documents. Although the defendants challenged NFLE"s copyright ownership in their pleadings, none has submitted any evidence to bring it into question.
Secondly, the learned motions judge found the evidence to be "unclear" as to whether the defendants engaged in unauthorized decryption contrary to paragraph 9(1)(c) of the Radiocommunications Act . However the evidence on behalf of the appellant NFLE was clear on this point and two of the three respondents before us submitted no evidence whatever. As to the third respondent, Sneaker"s Beach Tavern, the affidavit submitted but its co-owner should have been assessed by the motions judge for credibility. Although the affidavit asserts that this tavern had bought a "Sunday Ticket" from the NFL there were no details and no documentary proof provided. It is not enough to succeed on a summary judgment motion for a party to put in simply any evidence that if believed would raise a disputable issue of fact. In our view the motions judge erred in treating this affidavit as a serious reason for sending this matter to trial. It might also be noted that this affidavit concerned an issue that was not pleaded in defence by this respondent, and in the absence of an amendment to the pleadings such evidence might well not have been admissible at trial.
The appeal should therefore be allowed and a declaration issued that these respondents" activities constitute a breach of the appellant"s copyright and of the Radiocommunications Act. There should be a permanent injunction issued against the performance of similar acts by the respondents and there should be an order for a reference for determination of damages owing to the appellant for breach of its copyright and of the Radiocommunications Act. The appellant should have pre and post-judgment interest and its costs of the action here and in the Trial Division.
J.A.
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