• Damages of $52,527.07 For Breach of Copyright Where Licence Conditional on Payment of Fees Did Not Pass to Respondent Through Foreclosure Proceedings
  • April 25, 2017 | Authors: Jillian Brenner; Adrian J. Howard; Beverley Moore; Chantal Saunders
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Ankenman Associates Architects Inc. v. 0981478 B.C. Ltd., 2017 BCSC 333

    In this petition, the Supreme Court of British Columbia found the corporate respondent liable for damages for breach of copyright based on the unauthorized use of architectural plans and drawings in respect of an apartment development.

    The petitioner, a small architectural firm, had originally prepared the plans for Murray's Walk Development Ltd ("MWDL"), a developer who later went bankrupt and failed to pay all of the petitioner's fees. MWDL's property, including the lands and the plans for the project, was sold to the corporate respondent, a second developer, in the course of foreclosure proceedings.

    There was no dispute as to the ownership of copyright in the plans. Rather, at issue was whether the corporate respondent had acquired MWDL's right to use the plans by virtue of having purchased all of MWDL's property in the foreclosure proceedings.

    The Court concluded that the consent given to MWDL for the use of the drawings was conditional on payment of the petitioner's fees in full. The licence ended when payment was not provided. The Court found that the terminated licence was not capable of being transferred to the respondents, who as a result used the drawings without consent. The Court noted that even if the licence did transfer to the respondents, the petitioner revoked its consent or alternatively, the licence was conditional on payment in full which was never provided. In either case, the respondents would have used the drawings without consent.

    The Court disagreed with the respondents claim that the petitioner was estopped, by issue estoppel or cause of action estoppel, from seeking the relief sought in this petition because it was a respondent to the foreclosure proceedings but decided not to object to the relief sought at that time. The Court found that the issue raised in these proceedings was not addressed in the foreclosure proceedings.

    The Court noted that there was no clearly established practice on how to assess damages in this context. The Court awarded in the amount the corporate respondent would have been required to pay the petitioner in order for individual respondent to provide services based on the drawings. The Court concluded that damages should not be awarded against the individual respondent, finding that he was in a difficult position and appears to have acted in good faith.