• Appeal Relating to New Simplified Application Procedure in Copyright Claim Dismissed
  • September 5, 2013
  • Law Firm: Borden Ladner Gervais LLP - Toronto Office
  • NovaScotia v. Roué, 2013 NSCA 94

    The Respondents are descendants of the original designer of the Bluenose, and claim copyright interests and moral rights to his design drawings. When the original Bluenose sunk, the Bluenose II was constructed. This boat has fallen into disrepair. The Province of Nova Scotia started a project that is central to this dispute. The Province argues that it is restoring the Bluenose II, while the Respondents assert that the Province is creating an entirely new vessel based on the lines of the original Bluenose. This is alleged to be an infringement of their copyright and moral rights.

    The Respondents used a new rule, Rule 5.07 in the Rules of Civil Procedure, to bring an application to advance their claim. The Province (and other appellants) brought a motion to change the application into a traditional action. They also sought to strike, or obtain particulars, on parts of the claim. These motions were dismissed (judgment here). In this motion, the Appellants sought leave to appeal, and to have the ruling overturned.

    The Court of Appeal refused leave to appeal on the refusal to strike certain aspects of the pleadings or require further disclosure, stating that the judge correctly set out the applicable law and explained why he was exercising his discretion. However, regarding the issue of Rule 5.07,  the Court of Appeal did allow leave to appeal, as this was the first instance the Court had been asked to consider the new process. The Court then considered the decision below, and held that the judge displayed a clear understanding of the issues in the case, and engaged in a comprehensive analysis. The Court found nothing wrong with his result and dismissed the appeal.