Warman Memorandum

7/30/2019 Warman Memorandum

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Court File No. A-394-12 and A-395-12

FEDERAL COURT OF APPEAL

B E T W E E N:

RICHARD WARMAN and NATIONAL POST COMPANYAppellants

- and -

MARK FOURNIER and CONSTANCE FOURNIER Respondents

MEMORANDUM OF FACT AND LAW OFTHE APPELLANT, RICHARD WARMAN

BRAZEAUSELLER.LLPBarristers and Solicitors55 Metcalfe StreetSuite 750Ottawa, ON K1P 6L5

James KatzLSUC # 49046K

Tel: 613.237.4000 ext. 267

Fax: [email protected]

Lawyers for the Appellant,Richard Warman


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TO: CASSELS BROCK & BLACKWELL LLP2100 Scotia Plaza40 King Street WestToronto, ON M5H 3C2

Casey M. Chisick LSUC # 46572RTel: 416.869.5403Fax: [email protected]

Jason Beitchman LSUC # 564770Tel: 416.860.2988Fax: 647.259.7993

[email protected] for the Appellant,National Post Company

AND TO: MARK FOURNIER2000 Unity RoadElginburg, ON KOH 1NO

Tel: 613.929.9265Fax: 609.379.8793

Respondent

AND TO: CONSTANCE FOURNIER2000 Unity RoadElginburg, ON KOH 1NO

Tel: 613.929.9265Fax: 609.379.8793

Respondent


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TABLE OF CONTENTS

Page No.

OVERVIEW...................................................................................................................................1

PART I - SUMMARY OF RELEVANT FACTS .............................................................................2

1. MR. WARMANS COPYRIGHT IN THE WARMAN WORK ................................2

2. THE RESPONDENTS' INFRINGING ACTIVITIES ...................................................................2

3. THE APPLICATION JUDGES DECISION....................................................................3

PART II - ISSUE IN THIS APPEAL .............................................................................................4

PART III - SUBMISSIONS ...........................................................................................................4

1. STANDARD OF APPELLATE REVIEW ............................................................................4

2. CONTINUOUS OR ONGOING INFRINGEMENT .................................................................4

A. DEFINING A CONTINUOUS OFFENCE ......................................................................4

B. THE LEGAL PRINCIPLE ..............................................................................................6

3. THE PURPOSES OF THE LIMITATION PERIOD ............................................................9

A. THE CERTAINTY RATIONALE ..................................................................................10

B. THE EVIDENTIARY RATIONALE ..............................................................................10

C. THE DILIGENCE RATIONALE ...................................................................................11

4. BALANCING PLAINTIFF AND DEFENDANT INTERESTS & CONSIDERING THE

CIRCUMSTANCES .............................................................................................................11

PART IV - ORDER SOUGHT...............................................................................................12

PART V - LIST OF AUTHORITIES......................................................................................14


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MEMORANDUM OF FACT AND LAW OFTHE APPELLANT, RICHARD WARMAN

OVERVIEW

1. This appeal concerns the correct application of the limitation period as defined insubsection 41(1) (now Section 43.1) of the Copyright Act1 in a continuing (also known as an

ongoing) infringement of a work on the Internet.

2. The respondents, Constance and Mark Fournier (the Respondents) operate a website

message board on which a full-text reproduction of a literary work entitled Maximum Disruption:

Stopping Neo-Nazis By (Almost) Any Means Necessary (the Warman Work), authored and

owned by the appellant, Richard Warman (Mr.Warman), was published and/or communicated

to the public, without Mr. Warmans consent. Mr. Warman became aware of the publicationand/or communication to the public of the Warman Work on or about September 7, 2007.

3. Despite several requests by either Mr. Warman or his legal counsel that the Warman

Work be removed from the Respondents website, the Respondents refused to do so until

approximately April of 2011, when Mr. Warman threatened to begin legal proceedings against

them in the Federal Court by emailing to the Respondents an un-issued courtesy copy of his

Notice of Application, which was subsequently issued on May 9, 2011.

4. On June 21, 2012, Mr. Justice Rennie dismissed Mr. Warmans Application with respect

to the Warman Work, with costs to the Respondents. In his reasons for decision, Mr. Justice

Rennie found that Mr. Warmans Application was statue barred by operation of subsection 41(1)

of the Act, as Mr. Warman did not commence legal proceedings until May 9, 2011, more than

three (3) years after he first became aware of the infringement of the Warman Work by the

Respondents on their website.

5. It is respectfully submitted, that, in dismissing Mr. WarmansApplication, Justice Rennieerred in his application of subsection 41(1) of the Act, given that the evidence adduced during

the course of the Application clearly demonstrated that a) the Warman Work was, by the

Respondents own admission, continuously published on their website until they received notice

1 R.S.C., 1985, c. C-42 [hereinafter the Act]


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of Mr. Warmans copyright infringement proceeding in April of 2011, at which point the

Respondents removed copies of the Warman Work from their website; and b) the Warman

Work was published by the Respondents (again, by their own admission) on more than one

occasion and on different parts of the Respondents website, and that Mr. Warman did not

become aware of the additional publication of the Warman Work by the Respondents until well

within the three (3) year limitation period established by the Act.

6. Mr. Warman therefore brings this appeal for the purpose of ensuring a just resolution

against the Respondents who continuously infringed his copyright in the Warman Work for a

period of over three (3) years, and to seek a clarification in the law with regard to continuous or

ongoing infringement of copyright as it occurs over the Internet, which begins, but does not end,

three (3) years before copyright infringement proceedings are issued by the owner of the

copyright in a work.

PART I - SUMMARY OF RELEVANT FACTS

1. Mr. Warmans Copyright in the Warman Work

7. On or about July 6, 2005, Mr. Warman authored the Warman Work.2

8. The Warman Work was first published in Canada on July 6, 2005, by way of a

presentation at a meeting in Toronto.3

9. Copyright in the Warman Work was registered on the Canadian Copyright Register in

the name of Mr. Warman on February 18, 2011 as Certificate of Registration No. 1084591.4

2. The Respondents' Infringing Activities

10. The Respondents own, operate and moderate an Internet website located at the URLs

www.freedominion.com and www.freedominion.com.pa ("Freedominion"). The Respondents,

either individually, or via their employees or agents, control all content which is published on

Freedominion.5

2Warman Affidavit at para. 2, Appeal Book, Vol. 1, Tab 7, p. 78

3Warman Affidavit at para. 5, Appeal Book, Vol. 1, Tab 7, p. 78

4Appeal Book, Vol. 1, Tab 5, p. 72

5Warman Affidavit at paras. 19-20, Appeal Book, Vol. 1, Tab 7, p. 80.
http://www.freedominion.com.pa/http://www.freedominion.com.pa/


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11. On or about September 2007, Mr. Warman discovered that the Respondents had,

without his authorization, published an exact copy of the Warman Work on Freedominion. On

or about October 7, 2007, Mr. Warman sent a cease and desist notice to the Respondents,

demanding that they remove the Warman Work from Freedominion. Mr. Warman received no

response.6

12. On or about August 2010, Mr. Warman discovered that the Respondents continued to

reproduce and display the Warman Work on Freedominion, in the face of Mr. Warmans earlier

demands that the Respondents cease and desist from infringing his copyright in the Warman

Work.7

13. On August 25, 2010, Mr. Warmans solicitor, pursuant to Mr. Warmans instructions,

emailed a cease and desist letter to the Respondents solicitor, requesting theWarman Worksimmediate removal from Freedominion. The Respondents solicitor acknowledged that she had

forwarded this letter to the Respondents for their consideration. In a posting on Freedominion

dated September 1, 2010, the Respondents wrote that they did not intend to comply with Mr.

Warmans requests to cease and desist their infringement of the Warman Work. 8

14. On January 6, 2011, Mr. Warman discovered that the Respondents, without his

authorization, continued to publish the Warman Work on Freedominion.9

15. On or about March 29, 2011, Mr. Warmans legal counsel emailed to the Respondents

an un-issued courtesy copy of Mr. Warmans Notice of Application. As a result, on or about

April 7, 2011, the respondent, Constance Fournier, emailed Mr. Warmans solicitor and advised

him that the Respondents had removed all of the items [Mr. Warman] was complaining about

from [their] website.10

6 Warman Affidavit at para. 21, Appeal Book, Vol. 1, Tab 7, p. 807 Warman Affidavit at para. 29, Appeal Book, Vol. 1, Tab 7, p. 818 Warman Affidavit at paras. 30-32, Appeal Book, Vol. 1, Tab 7, p. 829 Warman Affidavit at para. 33, Appeal Book, Vol. 1, Tab 7, p. 8210 Warman Affidavit at paras. 34-36, Appeal Book, Vol. 1, Tab 7, p. 82


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16. As a result of the Respondents continued and ongoing infringement of the Warman

Work, Mr. Warman began legal proceedings against them on May 9, 2011, in Court File No. T-

784-11, by way ofNotice of Application.11

17. As of June 6, 2011, a copy of the Warman Work was still posted on Freedominion,

available for viewing and downloading by visitors to that website.12

3. The Application Judges Decision

18. The Application was heard in Ottawa on May 28, 2012 by the Honourable Mr. Justice

Donald J. Rennie. Justice Rennie issued his judgment and reasons for judgment on June 21,

2012, dismissing the Application in respect of the Warman Work. In his reasons, Justice Rennie

held that, although the Respondents had clearly infringed Mr. Warmans copyright in the

Warman Work, the Respondents were not liableby reason of Mr. Warman having commenced

his Application after the expiry of the three (3) year statutory limitation period set out in

subsection 41(1) of the Act.13

PART II - ISSUE IN THIS APPEAL

19. There is one issue in this appeal that is unique to Mr. Warman and that this Honourable

Appellate Court has, pursuant to its order and direction of December 18, 2012, directed Mr.

Warman to make representations on:

(a) Did the Application Judge err by finding the Respondents not liable for copyright

infringement of the Warman Work by reason of the Applicant having commenced his

Application for copyright infringement after the expiry of the three (3) year statutory

limitation period set out in subsection 41(1) of the Act?

11 Appeal Book, Vol. 1, Tab 4, p. 3612 Warman Affidavit at para. 37, Appeal Book, Vol. 1, Tab 7, p. 8313 Reasons for Judgment and Judgment, paras. 11-21, Appeal Book, Vol. 1, Tab 3, p. 24-27


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PART III - SUBMISSIONS

1. Standard of Appellate Review

20. Whether or not a statute of limitations applies in a given case is a question of law.14

Similarly, any question with regard to the interpretation of provisions of the Act is also a question

of law.15

21. The standard of review on a question of law is one of correctness.16 When applying the

correctness standard on an appeal, the appellate court must decide, using its own analysis,

whether the lower courts decision was correct in law. If the appellate court does not agree with

the lower courts judgment, the appellate court may substitute that judgment for its own.

22. Therefore, for Mr. Warman to succeed in this appeal, he must demonstrate to this

Honourable Appellate Court that Justice Rennie erred in law and incorrectly applied subsection

41(1) of the Act which ultimately lead Justice Rennie to dismiss Mr. Warmans claim of copyright

infringement regarding the Warman Work in its entirety.

2. Continuing or Ongoing Infringement

A. Defining a Continuous Offence

23. The Supreme Court of Canada defined a continuing offence as not simply an offencethat takes or may take a long time to commit. Rather, it is when the accused remains in a state

of criminality while the offence continues. For example, murder is not a continuing offence, but,

conspiracy to commit murder may be a continuing offence. Possessing stolen goods and

wrongful detention of a victim following a kidnapping are continuing offences.17

24. Blacks Law Dictionary defines a continuing offence as an offence committed over a

span of time, so that the crimes last act controls when a statute of limitations begins to run.

14 Des Champs v. Conseil des coles spares catholiques de langue franaise de Prescott-Russell[1999] 3 S.C.R. No. 281 (S.C.C.) at para 5915Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers ofCanada [2012] S.C.J. No. 35 (S.C.C.) at para 2016Housen v. Nikolaisen, [2002] S.C.J. No. 31 (S.C.C.) at para 817R. v. Bell, [1983] 2 S.C.R. 471(S.C.C.)at 10


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Only the last act must be alleged to have occurred within the limitations period for prosecution of

the offence not to be statute barred.18

25. As with the criminal law concept of a continuing offence, liability for copyright

infringement that is ongoing and continues over a period of time will not be statute barred based

on when the infringing act was first discovered by a plaintiff. Rather, the limitation period will

only begin from the date that the last act of this continuing infringement occurred.19

26. In R. v. Lorimer, a Crown copyright case, the Government of Canada published a seven-

volume series of books about the gas industry. The defendant, James Lorimer and Company

Limited, published a single-volume infringing work at a much lower price. The reproduction of

the book over and over again (which clearly infringed the Crowns copyright) was considered a

continuing or ongoing infringement.20

27. Similarly, the Federal Court in Universal v. Zellers held that as the consequences (of a

continuing infringement) are so serious and the principle so important, when it is apparent that a

continuing infringement will continue to cause serious damages, an interlocutory injunction

should not be refused on this ground alone.21

28. Other examples of continuing or ongoing copyright infringement have included the

continued sale of counterfeit Louis Vuitton items, and Adobe computer software.22

29. As with the continued and ongoing infringements referenced above, placing infringing

material on a publicly accessible Internet site and keeping it there is an ongoing reproduction

and/or publication of a work that occurs as long as that material remains on the website in

question. Therefore, every day that such a work is accessible on the Internet constitutes a new

and ongoing infringement of that work.

18 Garner (Bryan A.),Blacks Law Dictionary, 8th ed. (New York: Thompson/West, 2004)19

Bell, supra note 17.20The Queen v. J ames Lorimer and Company Limited [1984] 1 F.C. 1065 (F.C. C.A.) at 5. (R. v.Lorimer)21 Universal City Studios, Inc. and Merchandising Corporation of America, Inc. v. Zellers Inc. [1984] 1 F.C. 49 (F.C. T.D.) at 9. (Universal v. Zellers)22Louis Vuitton Malletier S.A. v. Lin[2007] F.C.J. 1528 (F.C.) at paras 14 and 25.


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B. The Legal Principle

30. In the case of an ongoing copyright infringement, the correct application of the limitation

period as found in subsection 41(1) of the Act is to preclude a remedy for acts of infringement

that earlier than three (3) years before the commencement of legal proceedings. For example,

if infringement of copyright occurs six (6) years before an infringement action is issued, aplaintiff will only receive compensation for damages for the infringing activity that occurred

during the three (3) years prior to the commencement of the plaintiffs action. The infringing

party therefore escapes liability for his/her earlier infringing activities, but not those activities that

fall within the (3) year period established by subsection 41(1) of the Act.23

31. Further, since infringement is a continuing wrong, the limitation period bars past

infringements, but not those committed after the bar falls, nor those that are threatened for the

future.24

32. The case Wall v. Horn Abot Ltd. surrounding the alleged infringement of the copyright in

the Trivial Pursuitboard game provides an authority for the application of the Acts limitation

provision.25 In that case, the plaintiff argued that the passage of a limitation period of three (3)

years from the date of the initial copyright infringement did not preclude bringing an action for

ongoing and subsequent infringements. The plaintiff in that case relied on James C. Mortons

work, Limitation of Civil Actions, which opinedthat every unauthorized reproduction of a work is

an infringement of copyright and therefore the limitation period will commence running only fromthe latest instance of infringement and not from the commencement of infringement. Morton

also noted that the limitation period does not apply to bar an action for an injunction restraining

future copyright infringements.26

33. The court in Wallstated that with respect to the copyright claims, it does not appear to

be contested that although claims relating to breaches that occurred more than three years

preceding the commencement of this proceeding are barred, ongoing breaches within the three

years and following the commencement of this proceeding are not.

27

The court continued,

23Vaver, David. Essentials of Canadian Law Copyright Law (Toronto: Irwin Law Inc., 2000) at 288.24Vaver, David. Essentials of Canadian Law Intellectual Property Copyright, Patent and Trade-mark, 2

ndEdition (Toronto: Irwin Law Inc., 2011) at 660-662.

25Wall v. Horn Abbot Ltd.,[2007] N.S.J. No. 280 (N.S. S.C.) at para 455. (Wall)26J. Morton, Limitation of Civil Actions(Carswell, 1988) at 78.27Wall, supra note 25 at para 474.


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stating, the claims for copyright infringement, are not dismissed in respect to any claims

that arose within three (3) years of the initiation of this proceeding.28

34. That subsection 41(1) of the Act does not act to preclude a claim of copyright

infringement for infringing activities that continue into the three (3) year period prior to the

commencement of legal proceedings is also the interpretation of that subsection that has beenadopted by the Ontario Superior Court of Justice.29

35. In other contexts, including patent law, and in other jurisdictions, from the United States

to the United Kingdom, the same legal principle has been applied to cases of ongoing

infringement that begin outside of time limit established by the relevant statutes of limitations.

36. In the context of patents, the Federal Court of Canada has ruled that, in the case of a

continuing infringement, a remedy in damages for the portion of the infringement that wasongoing and occurred prior to the limitation period being triggered is actionable.30 In this sense,

an ongoing infringement is seen as a new infringement every day.31

37. In the United States, the general principle of law in cases of ongoing copyright

infringement is that the limitation period does not begin to run on a continuing wrong until the

wrongful act is completed.32 Therefore, in a case of continuing copyright infringement, an action

may be brought for all acts that accrued within the statutory three (3) year limitation period and

preceding the filing of the copyright infringement suit.

33

38. In the United Kingdom, a copyright claim is not statute-barred in cases of ongoing

infringement, because such an infringement is deemed a continuing breach of duty, but that the

loss for which damages may be recovered in such a case is limited to what was sustained

before the six (6) year limitation period is triggered, up to the time when legal proceedings

begins.34

28Ibid at para 475.29

Dolmage v. Erskine [2003] O.J. 161 (Ont. S.C.J.) at paras 57, 75 and 76.30Consolboard Inc. v. MacmIllan Blodeel (Saskatchewan) Ltd.[1982] F.C.J. No. 301(F.C.T.D.) at 15.(Consolboard)31 Ronald E. Dimock, ed., Intellectual Property Disputes: Resolutions and Remedies , looseleaf(Toronto: Carswell, 2002) at 20-5.32Taylor v. Merrick, 219 U.S.P.Q. 2d 420, Posner J. (7th Cir. 1983)at para 8.33Roley v. New World Pictures Ltd. (1994), 30 U.S.P.Q. (2d) 1654, Tang J. (9

th Circuit) at para 16.34Phonographic Performance Ltd. v. Department of Trade and Industry (2004), [2005] RPC 8 (Eng.Ch. Div.) at para 28.


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3. The Purposes of The Limitation Period

39. The rationale of a having a statutory limitation period supports the proposition that, in

cases of ongoing copyright infringement, the passage of a limitation period does not preclude a

successful infringement action for those acts of infringement that continue before a limitation

date is triggered by the passage of time.

40. In Peixeiro v. Haberman and cases since, the Supreme Court of Canada affirmed its

earlier identification of the traditional rationales of limitations statutes in M. (K.) v. M. (H.), which

provided that limitation statutes were held to rest on certainty, evidentiary, and diligence

rationales.35

A. The Certainty Rationale

41. Regarding the certainty rationale, statutes of limitations have long been said to be

statutes of repose. There comes a time, it is said, when a potential defendant should be

secure in his reasonable expectation that he will not be held to account for ancient

obligations.36

42. However, in cases of ongoing infringement, a defendants obligations to the copyright

owner are not ancient, and accrue every day during which the infringement occurs. Therefore,

although the certainty rationale would be offended if an act of infringement began and endedafter the expiry of the applicable limitation period, it would not apply if the infringement in

question continued to occur.

B. The Evidentiary Rationale

43. The evidentiary rationale concerns the desire to foreclose claims based on stale

evidence. Once the limitation period has lapsed, the potential Defendant should no longer be

concerned about the preservation of evidence relevant to the claim.37

35Peixeiro v. Haberman,[1997] 3 S.C.R. 549 (S.C.C.) at para 34. (Peixeiro v. Haberman)36Ibid atpara 22.37

Ibid at para 23.


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44. The goal of this rationale, therefore, is to avoid actions being tried on stale evidence.

However, on the proven facts of the case at bar, there is no issue with regard to the evidence of

the ongoing infringement of the Respondents, as aprima facie case of copyright infringement of

the Warman Work, which continued to occur as late as June of 2011, has been made out.

C. The Diligence Rationale

45. This rationale stands for the proposition that plaintiffs are expected to act diligently and

not sleep on their rights. Statutes of limitation are an incentive for plaintiffs to bring suit in a

timely fashion.38 The goal is to give potential defendants the security of knowing that they will

not be held accountable for obligations that have long since passed. But again, a defendants

legal obligations to a plaintiff continue as long as the defendants infringement continues and is

ongoing in time prior to the expiry of the limitation period.

46. If certainty, evidentiary, and diligence rationales for the limitation period are considered,

as they must be, the copyright infringement that occurred in the three (3) years leading up to Mr.

Warmans Application being issued must not be barred by subsection 41(1) of the Act.

4. Balancing Plaintiff and Defendant Interests & Considering The Circumstances

47. Balancing interests and considering the circumstances of each case are relevant in the

context of the correct application of a limitation period. Both analyses support Mr. Warmans

position on this appeal. Protecting potential defendants was once a key goal of the limitation

period. However, more modern judicial interpretations have evolved to reflect a policy of striking

a balance between the interests of the plaintiff and the defendant.

48. The Supreme Court in Murphy v. Welsh stated a limitations scheme must attempt to

balance the interests of both sides, and that there must be fairness to the plaintiff as well. One

example is the reasonable discovery rule, which prevents the injustice of a claim being statute

barred before the plaintiff becomes aware of its existence.39

49. As the interests of both sides must be balanced, allowing a party to get away with

copyright infringement because the infringement began over three (3) years before legal action

38Ibid at para 24.39Murphy v. Welsh; Stoddard v. Watson[1993] 2 S.C.R. 1069(S.C.C.) at paras. 11 and 12. (Murphyv. Welsh)


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is issued would not be a correct balancing of the interest of plaintiff and defendant. Rather, a

balanced approach would be to hold as statute barred the specific and distinguishable copyright

infringement(s) later than the three (3) year period that runs up to the date legal proceedings are

issued, while allowing claims for infringement(s) which occurred within that three (3) year period.

50. In 1999, the Supreme Court in Novak v. Bondstated that over the last several decadesrenewed attention has been given to ensuring that statutes of limitations are framed in a manner

that addresses plaintiff's interests more consistently and not just those of the defendant. They

stated that this trend has also been reflected in the more balanced way that courts have sought

to interpret these statutes.40

51. The Court stated that the best interpretation of a limitations statute seeks to give effect

to each of the three traditional characteristics of limitation periods certainty, evidentiary and

diligence and to add a fourth: Account for the plaintiff's own circumstances, as assessedthrough a subjective/objective lens, when assessing whether a claim should be barred by the

passage of time.41

52. Therefore, consideration ofMr. Warmans circumstances, and the circumstances of this

case, must occur in assessing whether subsection 41(1) of the Act should act to bar Mr.

Warmans claim outright. This court must therefore consider the established facts that Mr.

Warman repeatedly put the Respondents on notice that they were infringing his copyright in the

Warman Work, and that he intended to bring legal proceeding against them if their actionscontinued. However, despite these warnings, the Respondents decided to continue infringing

Mr. Warmans copyright, and took no steps to cease their infringing activities until faced with the

commencement of legal proceedings against them. These circumstances, when viewed

objectively, militate in favour of a finding that subsection 41(1) of the Act does not operate to

ban Mr. Warmans claim of infringement outright.

53. If the interests of Mr. Warman and Respondents are balanced in the context of the

subsection 41(1) limitation period, which they must be, a legal or equitable remedy for thecopyright infringement that occurred within the three (3) years leading up to the commencement

of legal proceedings in this case must attract an appropriate remedy.

40Novak v. Bond[1999] 1 S.C.R. 808 (S.C.C.) at paras 65-66. (Novak v. Bond)41

Ibid at para 67.


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PART IV - ORDER SOUGHT

54. The appellant, Richard Warman, therefore requests that the following order be made:

(a) That Mr. Warmans appeal with respect to the Warman Work be allowed;

(b) That a declaration be issued that the Respondents infringed copyright in the

Warman Work, contrary to Section 27(1) of the Act, by reproducing the full text

thereof on their website between May 9, 2008 and June of 2011;

(c) That the Respondents pay to Mr. Warman statutory damages in an amount between

$500.00 and $200,000.00 as this Honourable Appellate Court deems appropriate;

(d) That an injunction issue enjoining the Respondents from infringing Mr. Warmans

copyright in the Warman Work in the future;

(e) That the Respondents pay to Mr. Warman his costs on this appeal, as well as his

costs in his Application in the court below; and

(a) That the Appellant be granted such further and other relief as this Honourable

Court deems just.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 25th day of March, 2013.

BRAZEAUSELLER.LLPLawyers for the Appellant,Richard Warman


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PART V LIST OF AUTHORITIES

Statutes

1. Copyright Act, R.S.C., 1985, c. C-42

2. Copyright Modernization Act, S.C. 2012, c. 20

Periodicals

3. Garner (Bryan A.),Blacks Law Dictionary, 8th ed. (New York: Thompson/West, 2004)

4. Black (Henry Campbell) et al.,Blacks Law Dictionary, 6th ed. (St. Paul, West, 1990)

5. Vaver, David. Essentials of Canadian Law Copyright Law (Toronto: Irwin Law Inc., 2000)

6. Vaver, David. Essentials of Canadian Law Intellectual Property Copyright, Patent and

Trade-mark, 2nd Edition (Toronto: Irwin Law Inc., 2011)

7. J. Morton, Limitation of Civil Actions (Carswell, 1988)

8. Ronald E. Dimock, ed., Intellectual Property Disputes: Resolutions and Remedies,looseleaf (Toronto: Carswell, 2002)

Jurisprudence

9. Des Champs v. Conseil des coles spares catholiques de langue franaise de Prescott-

Russell[1999] 3 S.C.R. No. 281

10. Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of

Canada [2012] S.C.J. No. 35

11. Housen v. Nikolaisen, [2002] S.C.J. No. 3112. R. v. Bell, [1983] 2 S.C.R. 471

13. R. v. J.R.G., [2002] O.J. No. 5709

14. The Queen v. James Lorimer and Company Limited [1984] 1 F.C. 1065

15. Universal City Studios, Inc. and Merchandising Corporation of America, Inc. v. Zellers Inc.

[1984] 1 F.C. 49

16. Louis Vuitton Malletier S.A. v. Lin [2007] F.C.J. 1528

17. Adobe Systems Inc. v. Thompson (c.o.b. Appletree Solutions) [2012] F.C.J. 1336

18. Wall v. Horn Abbot Ltd., [2007] N.S.J. No. 28019. Kerr v. Canada [1982] F.C.J. 401

20. Dolmage v. Erskine [2003] O.J. 161

21. Consolboard Inc. v. MacmIllan Blodeel (Saskatchewan) Ltd. 1982 63 CPR (2d) 1

22. R. v. J.R.G., [2002] O.J. No. 5709
http://www.lexisnexis.com/ca/legal/search/runRemoteLink.do?langcountry=CA&linkInfo=F%2523CA%2523OJ%2523year%252002%25sel1%252002%25ref%255709%25&risb=21_T16846867865&bct=A&service=citation&A=0.5226040505412004http://www.lexisnexis.com/ca/legal/search/runRemoteLink.do?langcountry=CA&linkInfo=F%2523CA%2523OJ%2523year%252002%25sel1%252002%25ref%255709%25&risb=21_T16846867865&bct=A&service=citation&A=0.5226040505412004


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23. Taylor v. Meirick, 219 U.S.P.Q. 2d 420, Posner J. (7th Cir. 1983)

24. Roley v. New World Pictures Ltd. (1994), 30 U.S.P.Q. (2d) 1654, Tang J. (9th Circuit)

25. Phonographic Performance Ltd. v. Department of Trade and Industry (2004), [2005] RPC

8 (Eng. Ch. Div.)

26. Peixeiro v. Haberman, [1997] 3 S.C.R. 549

27. M. (K.) v. M. (H.), [1992] 3 S.C.R. 628. Murphy v. Welsh; Stoddard v. Watson [1993] 2 S.C.R. 1069

29. Novak v. Bond[1999] 1 S.C.R. 808
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Warman Memorandum

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Transcript of Warman Memorandum