RSS FeedHow not to sue Dragons’ Den
Every time I see the Dragons belittle a sweating contestant from their raised TV studio platform that reminds of Olympus I catch a breath. It’s not Jerry Springer but what if one of the scorned pitchers loses it and throws his heavy business idea right at a Dragon’s head? Thankfully, I’ve never seen such a sight, but at least one unlucky show participant did sue the CBC for defamation after a particularly nasty broadcast. His litigation imploded at the summary judgment motion teaching us something about both the defamation law and the inner workings the famous TV show.
In his judgment, Justice Lofchik summarized well what happened between the plaintiff, Mr. Turmel, and the CBC. A Dragons’ Den producer recruited Turmel for his public speaking skills. No business idea was on the table at that time. Turmel signed a bulletproof consent and release. Then his unsuccessful pitch for “a local currency system for Brantford, Ontario” was taped on May 31, 2009. Dragons showed no mercy. Nine months later, the CBC broadcast Mr. Turmel’s pitch in a one-minute version. A week later, he sued the CBC for defamation.
The CBC brought a summary judgment motion. The rule for summary judgment is that “there is no genuine issue requiring a trial with respect to a claim or defence.” Summary judgment is serious because it deprives one or more parties to a lawsuit of a trial. But if there is no doubt about the outcome of a trial, the court should grant summary judgment to save everyone’s time and money.
The first issue at the motion was Mr. Turmel’s failure to notify the CBC of the alleged defamation in writing within six weeks of seeing the broadcast. Ontario’s Libel and Slander Act bars any claim for “libel in a newspaper or in a broadcast” if the plaintiff didn’t do that. Even serving a statement of claim a week after the broadcast didn’t help Mr. Turmel. The purpose of the written notice is to give the alleged defamer a chance to apologize and correct the record. The courts have held that you cannot expect a defendant to have such an opportunity once the litigation took off. If Mr. Turmel’s claim was for defamation, his ignorance of the (rather arcane) law killed his case.
The second issue was Mr. Turmel’s argument that his case was not only for defamation but also for breach of contract. If he was right, the Libel and Slander Act didn’t bar at least some of his claim. He was wrong. The judge held that even though “one might also glean the suggestion of a claim for breach of contract,” Mr. Turmel signed a rock-solid consent and release that was the whole contract between him and the CBC. Mr. Turmel wasn’t a vulnerable party deserving special treatment, and he could have consulted a lawyer when he signed the deal. The agreement was that the CBC could pretty much show or not show anything taped in exchange for giving him a chance to pitch to the Dragons.
So a procedural misstep in the defamation claim and a failure to plead another real cause of action caused Mr. Turmel to lose this summary judgment motion. Consulting a defamation lawyer could certainly have helped him, but who knows, maybe Mr. Turmel will launch a second salvo in his war with the CBC by pleading another cause of action. But which one?
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Legal Domestic Dispute Is Brewing…
I have to admit that I called this one. As my wife and I were watching CBC’s Dragon’s Den an interesting segment began. Before I go into the relevant legal issues in this case, some background is required.
One of the “Dragons” is Jim Treliving is, among other numerous ventures, a co-owner of Mr. Lube.
Fast forward to the episode that I was watching. Out comes Jessica Gilbank, who is the owner of Ms. Lube by Mechanchik. She is the owner of an oil changing garage that employs women, because she found it hard for female mechanic apprentices to break into the male dominated field.
Although I know little about copyright law, Treliving clearly indicated in the episode that he did not even want to participate in the segment because he clearly felt that Ms. Lube was infringing on the Mr. Lube brand.
Fast forward again to this week, where my prediction came true. The Globe and Mail has reported that Mr. Lube has filed a $250 000 lawsuit alleging that the use of the name Ms. Lube should be prohibited based on copyright law.
As this legal domestic dispute unfolds we shall see how the court rules.
What is more interesting to me is how this may affect the CBC and potential “contestants” on Dragon’s Den. For this, too we will have to wait and see as the next season of Dragon’s Den is currently filming.
CBC and Copyright
Scott Tribe pointed out on his blog today that the CBC has implemented new copyright policies on its online news properties. As boingboing explains, the CBC has signed up with iCopyright, an American service which sells licences to digital content creators to allow them to re-post or re-publish CBC content for a monthly fee. Cory Doctorow points out that this is the same service that purports to sell readers of Associated Press content the ability to quote 5 or more words from AP stories.
As a business strategy, I think this is clearly going to be a spectacular failure. Any company large enough to pay $250/month to re-post a single article can also create its own original content at a lower cost. Consequently, I don’t imagine that the CBC will sell very many licenses.
Of course, selling licenses isn’t really the point of the new policy. The point is scare small, independent digital content creators from sourcing the CBC. As Doctrow observes:
The cherry on the cake? iCopyright offers a reward of up to $1,000,000 for snitching on bloggers who don’t pay Danegeld to Canada’s public broadcaster to quote the works they funded.
On top of that, the licensee must “agree not to criticize the CBC, the subject of the article, or its author.”
This, too, seems like an unsound business strategy to me. When bloggers link to or reference CBC‘s online content, it is almost universally the practice of good bloggers to provide a link to the original content. This drives traffic to the CBC‘s online properties both directly (through people clicking on the link) and indirectly (through the Google PageRank benefit which accrues from inbound links, causing CBC‘s stories to achieve more favourable rankings in search results). The CBC seemed to acknowledge the important role that bloggers play in the online news ecosystem when it introduced features such as their “most blogged” content. Recently, these innovative social media features were removed; now they are being replaced with restrictive copyright policies that discourage bloggers from linking to CBC at all.
The CBC, like any other content provider, has a right to protect its intellectual property within the limits of copyright law. To the extent that other parties wish to re-publish the CBC‘s content in full and without comment (by the way, good bloggers never do this anyway), the CBC has the right to dictate the terms and conditions.
However, as the Supreme Court made perspicuous in CCH Canada Ltd. v. Law Society of Upper Canada, there are limits on the scope of copyright protection. The Court is extremely clear on the point that fair dealing is not simply a defence to a claim by a copyright holder; it is a distinct right held by users of copyright material. In other words, “Any act falling within the fair dealing exception will not be an infringement of copyright [emphasis added].”
In determining whether the use of copyright material falls within the fair dealing exception, the court will look at six factors (I have provided short extracts from the case to explain each factor):
- The purpose of dealing.. “In Canada, the purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act, namely research, private study, criticism, review or news reporting”
- The Character of the Dealing. “If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing.”
- The Amount of the Dealing. “If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement.”
- Alternatives to the Dealing. “If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court.”
- The Nature of the Work. “Although certainly not determinative, if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work — one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair.”
- Effect of the Dealing on the Work. “If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair.”
On his site, Scott proposes three ways of circumventing the CBC‘s iCopyright program. First, he proposes to paraphrase any material he uses from the CBC. Second, he says that he will seek out alternative sources that use more permissive copyright policies. Finally, he references a commenter on boingboing who suggests that one user can purchase a license and then every other user can link that original licensed use. I question the legality of the third option, as this would likely still constitute an infringement of the original work.
Not being a lawyer, I am prohibited from offering legal services or advice to anyone. Personally, though, I will continue to quote from and source CBC‘s copyright material on my blog, without purchasing a license (as I did in this post). When I quote from CBC, I will link to the original source. I will also continue to ensure that any use I make of copyright material falls within the fair dealing exception by quoting minimally and supplementing quotations with my own original analysis, commentary, criticism, review, and research. It’s not at all clear to me why I would pay $250/month to exercise my existing legal rights, while also contracting out of my right to criticize the original source.
There is one thing that I will change as a result of CBC‘s new iCopyright policy. From now on, whenever I link to CBC, I will use the the rel=”nofollow” construct. This attribute instructs search engines like Google not to index the link as part of its PageRank algorithm. Essentially, the links don’t help their destination sites to achieve higher rankings in search engines. I already use this construct when linking to sources such as the Conservative and Liberal parties (being a New Demcorat, I want to ensure that I’m not giving any advantage, however trivial, to my political opponents). From now on, CBC will not get the trivial benefit they enjoy in terms of search engine ranking when I link to them. This practice will continue until CBC adopts a more balanced and realistic approach to copyright.
Jane/Finch Fatalities, By Car Not Gun…
On Sunday October 18th I woke up as I usually do, turning to the news to see what I missed while I was dreaming of something I would undoubtedly not remember… I recall rolling my eyes when I heard of another death in the Jane/Finch area, an area I visited on occasion in a past career and hear of often while watching the news. Then the pictures flashed across the screen. A BMW. A Honda Odessey. A seat. Engine. Bodies (yes that is PLURAL!). All strewn across a street that normally attracts attention for shell casings, and knife blades. I have seen fatal car accidents, dead bodies, but none of that amounted to the carnage inflicted to that minivan.
Then as first heard from CP24, and confirmed in this CBC article, the BMW, which police allege rocketed into the Honda at approximately 200 km/h, was being operated by a man who was being investigated for “driving related offences.” When I first saw the newscast, it was saying that 21 year-old Roman Luskin, was known to police for previous impaired driving offences (the CBC article makes mention of this also). Again???!!!
I do not want to make this article about drinking and driving and its effects. We all know what the result is.
I want to discuss the legal ramifications of impaired driving causing death in Canada, and how those being convicted of such offences are getting away with murder.
This is the latest in a series of high profile cases that has outraged the public with relation to impaired driving cause death. The most recent, and an open wound here in Southwestern Ontario is the death of the “Pie Ladies.” When these four ladies were killed by convicted impaired driver, Wladyslaw Bilski, only those seasoned in impaired driving cases would be able to predict that he would get off so easily with, a 4 year sentence. Justice Abbey’s sentence, unfortunately, is in the realm of available sentences for this type of offence. The problem is, why?
Impaired Operation of a Motor Vehicle:
253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the per- son’s blood exceeds eighty milligrams of al- cohol in one hundred millilitres of blood.
255. (1) Every one who commits an offence under section 253 or 254 is guilty of an indicta- ble offence or an offence punishable on sum- mary conviction and is liable,
(a) whether the offence is prosecuted by in- dictment or punishable on summary convic- tion, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than $1,000,
(ii) for a second offence, to imprisonment for not less than 30 days, and
(iii) for each subsequent offence, to im- prisonment for not less than 120 days;
(b) where the offence is prosecuted by in- dictment, to imprisonment for a term not ex- ceeding five years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.
…
Impaired Operation of a Motor Vehicle Cause Death:
255. (3) Everyone who commits an offence under paragraph 253(1)(a) and causes the death of an- other person as a result is guilty of an indictable offence and liable to imprisonment for life.
Life. Now how many people do you need to kill to get life? Is an older person’s life less valuable than a young child’s? If he had killed 4 infants or school-aged children, would Justice Abbey have seen that as a more aggravating factor in determining sentence?
When will Canadian courts stand up and take notice and actually digest the fact that criminal driving fatalities are the LEADING cause of criminal death in Canada, and punish the offenders accordingly.
I do, however, applaud the inclusion of s.752 of the Criminal Code which now excludes conditional sentencing as an option for “serious person injury offences.” This December 2007 legislation should now certainly guarantee anybody convicted of impaired cause death of jail.
Prior to this legislation, it was the norm for a conditional sentence to be given to somebody convicted under s. 255. Good deal for them. Kill somebody, be held criminally culpable, yet serve your sentence from home. This is what happened in this case:
YORK REGIONAL POLICE – MEDIA RELEASE
SENTENCING IN 2006 FATAL MOTOR VEHICLE COLLISION
A 55-year-old Vaughan man has received a conditional sentence in connection with a 2006 fatal motor vehicle collision that claimed the life of a 34-year-old woman in the City of Vaughan.
On Thursday, November 13, 2008, the Honourable Mr. Justice A. Stong sentenced David CLARK to house arrest for a period of two years less a day. He will then be placed on two years probation that includes 240 hours of community service. He has also received a three-year driving prohibition.
In April, 2008, David CLARK pleaded guilty to Impaired Driving Causing Death and Impaired Driving Causing Bodily Harm.
On Tuesday, May 16, 2006, a silver Nissan Maxima operated by Mr. CLARK was southbound on Huntington Road south of Major MacKenzie Drive. A blue Honda Civic being operated by a 30-year- old man from Vaughan was northbound on Huntington Road when it was struck by the southbound motor vehicle. The passenger in the Honda Civic, a 34-year-old woman from Vaughan, was killed in this collision.
Impaired driving remains the number one criminal cause of death in Canada. When you drink and drive you not only risk your life and those of your passengers, but the lives of every other driver and pedestrian on the road.
—
The unfortunate part of this is that I was part of this incident. I saw the victim’s lifeless body. I saw the paramedics try to save her. I smelled the booze coming from the suspect. I arrested Mr. Clark for impaired cause death. And I was bitterly disappointed to learn of his sentence.
I do understand how sentencing takes part, and I’m learning more and more about the mechanics behind it every day that I attend in law school. I also understand the adversarial system in our courts and how it is absolutely necessary for a defendant to be able to be provided the best possible defence they can receive.
But what I do not understand is why the Canadian government, whether under Liberal or Conservative authority, has yet to pass stricter legislation that provides for adequate sentencing for Canada’s most deadly form of criminal death. Guns kill, that’s a given, but let us stop debating the gun registry, or handgun ban for a moment, and tally up the numbers. What I did learn from my first year criminal law class, is that “there is a strong correlation with deterrence and high conviction appears to show that deterrence will be effective in reducing crime.”
Since impaired driving is such a technical offence with numerous requirements to satisfy the courts, perhaps this is not possible. I recall from my early days as a police officer that a charge was withdrawn because the breath technician said “the suspect had 80 millilitres of alcohol per 100 millilitres of blood.” What he should have said was “the suspect had 80 milligrams of alcohol per 100 millilitres of blood.” I think only the judge and I noticed the difference in the testimony, because as soon as the Crown went forward to the next line of questioning, they withdrew the charge because one of the two required tests under law had not met the specifications as outlined by law. I know I was shocked, and had I realized, I would have said something.
But it is this form of adversary that provides for justice to be done. Had this little mistake been overlooked, and the suspect been convicted, it has the potential to open the floodgates. But I digress into another area…
Consequently, it is not that I want harsher sentences because of any of a number of reasons. I just feel that in this specific offence there is a HUGE disconnect between the offence and sentence. One of the principles of criminal law sentencing is deterrence, and I do not believe that the current sentences for Canada’s leading criminal cause of death is being satisfied.
Let us hope that should Mr. Luskin be found guilty of what he is accused of, that the disconnect mentioned has be repaired.
Bah, humbug to Tarek Fatah
Ihsaan Gardee, The Calgary Herald
December 14, 2008
Reproduced with the permission
While Canadians hunker down for the festive season, bombarded by incessant shopping jingles and reruns of A Christmas Carol, many are also simply trying to weather the economic storm which is now battering the world and has finally reached our shores.
It was with this in mind that the initiative to launch a food drive in conjunction with the CBC and the cast and crew of one of Canada’s newest and most talked-about sitcoms, Little Mosque on the Prairie, embarked.
No holiday season would be complete, however, without the naysayers and those who would seek to divide Canadians instead of uniting to help them in their time of need. In this case, the role of Ebenezer Scrooge is played with aplomb by Tarek Fatah [who writes for and is frequently interviewed by Maclean's magazine], who has taken it upon himself to bah, humbug this project.
In the rush to pen his Dec. 11 column, “CBC and jihad,” attacking the Canadian Broadcasting Corp. for teaming up with the Canadian Council on American-Islamic Relations (CAIRCAN) on an anti-hunger initiative, Fatah omitted more than just facts. Accuracy and truth went out the window too.
Apart from a passing mention of CAIR-CAN’s involvement in what he terms “an admirable deed,” Fatah’s diatribe seems to focus more on his own fears and insecurities–seeing Islamists lurking around every corner and hiding in every shadow–while mudslinging at highly respected grassroots organizations. Perhaps using the logic that a lie repeated a thousand times becomes the truth, Fatah seems content to spew the same unsubstantiated allegations time and time again.
To paraphrase from the movie The American President, many of us operated under the assumption that the reason that Fatah (and those like him) devotes so much time and energy shouting at the rain is that he simply doesn’t get it. Well, we were wrong. Fatah’s problem isn’t that he doesn’t get it. Fatah’s problem is that he just can’t sell it.
For the record, CAIR-CAN is an organization whose vision is to be a leading voice that enriches Canadian society through Muslim civic engagement (such as this project) and the promotion of human rights. Formed as a sister organization of the U. S.-based CAIR, the two remain completely distinct and autonomous operationally while co-operating on issues of mutual concern and sharing best practices.
Furthermore, CAIR-CAN has acted as an intervener on several high-profile human rights cases, including that of Maher Arar’s rendition to torture in Syria, and continues its work on day-to-day issues of discrimination and civil liberties violations. Recognized for its professionalism and commitment to the universal principles enshrined in our Constitution by organizations and individuals such as Amnesty International and author/ activist Naomi Klein, CAIR-CAN has worked and will continue to work on behalf of all Canadians.
Finally, CAIR-CAN does not now nor will it ever receive or accept funding from foreign governments. Period.
Having said this, even in the story, there is hope at the end for Ebenezer Scrooge.
We welcome Tarek Fatah to come out and help distribute the food collected by this initiative to feed the hungry this holiday season. Then, just maybe, he’ll see for himself that when, as Canadians, we are united, we can accomplish miracles.
Ihsaan Gardee is the executive director of the Canadian Council on American-Islamic Relations (CAIR-CAN).
Kashif Ahmed of Law is Cool is a Board Member of CAIR-CAN. Note that this piece is provided for interest alone.
Green Party Barred from Election Debates
Déjà vu.
Though political support for the party continues to grow, a consortium of Canadian broadcasters has yet again decided not to allow the Green Party to participate in the leaders’ debates.
This is despite the fact that the Green Party, which is headed by Elizabeth May, recently acquired its first Member of Parliament when Independent (former Liberal) Blair Wilson decided to don the party colours.
Previously, the need to have at least one MP was put forth by the consortium as a prerequisite for participation in the debates.
As of last week, the Greens have an MP, but their request for participation was denied anyway.
Public interest – defined as having more than 5% support in a recent national poll – was another requirement.
According to the latest Strategic Council poll (PDF), the Greens have about 9% support across Canada. Out west, this number is as high as 12%, compared to just 18% for the Liberals.
Indeed, the Greens are ahead of the Bloc Québécois in nation-wide support. The Bloc is a separatist party with the explicit goal of tearing the fabric of Canada apart, and one which does not even field candidates outside of Québec. Nevertheless, while Bloc leader Gilles Duceppe will be appearing in the debates, Elizabeth May will not.
Michael Byers, the NDP candidate for Vancouver-Centre, supported the decision of the consortium. He is quoted calling May the leader of a “single-issue party:”
“My leader, Jack Layton, is running to be prime minister and so are the leaders of the other parties,” Byers told CBC News on Monday from Vancouver. “This is a leaders’ debate. It’s not an environment ministers’ debate.”
(Source: CBC)
The wholly incorrect perception of the Greens as a single-issue party is precisely the problem that Elizabeth May is unable to address now that she has been denied access to the debates.
May said in a statement that she is considering pursuing legal action against the TV networks. Not that I have much (read: any) knowledge of election law, but unfortunately I doubt that there’s a case here.
As undemocratic as it seems, the televised leaders’ debates are produced by private TV networks. Though the CBC is a Crown corporation – with the mandate to foster Canadian unity and promote the expression of diverse ideas - there is good case law suggesting that any legal action on May’s part would fail.
It’s been tried before.
In National Party of Canada v. Canada Broadcasting Corp. (1993), 106 D.L.R. (4th) 568 (Alta. Q.B.), the court decided that the CBC was not subject to Charter scrutiny when it denied the National Party the opportunity to participate in the leadership debates. The Supreme Court of Canada refused to grant expedited leave to appeal.
Along these same lines, in Natural Law Party v. Canada Broadcasting Corp. (T.D.), [1994] 1 F.C. 580, the Federal Court held that:
“In my view, the CBC is acting as a broadcaster and not as an agent of the government in its participation in the Broadcasters’ Consortium.”
and further that
“It is not the function of the government or indeed the courts to dictate to the news media what they should report. The broadcasters are exercising a function that is very central to the democratic process. But it is a function that they perform quite independently of government.
…
What the applicants are really asking this court to do is to dictate the content and the agenda of the political debate in the forthcoming federal general election. It is for the leaders of the various political parties to decide of their own free will and accord, without any coercion from this court, whom they want to debate and when and on what terms such debates should take place. It is not for this court to dictate the agenda of political debate.
The Green Party has retained Toronto lawyer Peter Rosenthal to spearhead the legal fight.
