As reported previously (for further details please see "Injunction against retailers of set-top boxes loaded with infringing applications"), the Federal Court issued an interlocutory injunction on June 1 2016 directed at retailers of set-top boxes that are configured or 'pre-loaded' with various applications that provide their users with unauthorised access to copyrighted television content. This was found to amount to irreparable harm to the plaintiffs, which were Canadian broadcasters and broadcast distribution undertakings that own and retransmit television programming in Canada. The Federal Court order also provided for a mechanism allowing the plaintiffs to expand the scope of the interlocutory injunction by impleading additional defendants that sell pre-loaded set-top boxes. Since the interlocutory injunction was issued, the plaintiffs have added 83 new defendants to the proceedings.

One of the five original defendants, Vincent Wesley doing business as, appealed the interlocutory injunction to the Federal Court of Appeal, arguing that the motion judge erred in finding that the plaintiffs had demonstrated that they would suffer irreparable harm if the injunction were not granted. The appeal was heard on March 20 2017 by a panel of three judges of the Federal Court of Appeal and was dismissed from the bench, with costs.

Madam Justice Gauthier, speaking for the Federal Court of Appeal, noted that it was open to the motion judge to conclude as she did, in view of the uncontradicted evidence that was presented by the plaintiffs. In particular, the court held that it was open to the motion judge to infer that purchasers of pre-loaded set-top boxes had an incentive to cancel their subscription with the plaintiffs permanently, given that these set-top boxes were specifically advertised by the defendants as means to "cut the cord".

For further information on this topic please contact Jean-Sébastien Dupont at Smart & Biggar/Fetherstonhaugh's Montreal office by telephone (+1 514 954 1500) or email ([email protected]). The Smart & Biggar/Fetherstonhaugh website can be accessed at