As reported in the recent Ontario decision of Pourshian v. Walt Disney Company, 2021 ONSC 4840, Damon Pourshian, the Toronto-based Sheridan student who commenced a copyright infringement lawsuit against The Walt Disney Company, Pixar, and several other Defendants, partially succeeded in his appeal to have the case continue against various US-based Defendants. The foreign Defendants had previously brought a motion to set aside service of Pourshian’s claim, arguing that the Ontario court lacked jurisdiction over the US companies. In a prior decision from October 15, 2019, a Master found that the Ontario court had jurisdiction over the claims against three of the Defendants, but not against the other five. On appeal, both Pourshian and the Defendants (on cross-appeal) argued that the Master misapplied the legal framework for determining whether a court has jurisdiction over a claim commenced against foreign defendants. The appeal was allowed in part, with the Appellate Court finding that the Master made various legal errors, and ultimately concluded the Ontario court had jurisdiction over six of the eight US defendants. The decision is notable for foreign content creators doing business in Canada, as held by the Appeal Court: “[a]ny activities the defendants engaged in outside Ontario that resulted in the communication [of the film] in Ontario are not protected simply because they took place outside Ontario”.

As we previously reported, Pourshian authored both a script and made a short film titled “Inside Out” (first conceived in high school) when he was a student at Sheridan College’s Faculty of Film and Television in 2002 in its Media Arts Program, renowned for its animation program and a fertile ground for big animation studios to recruit students. In June 2015, Pixar released its film titled “INSIDE OUT” about an 11-year old girl named Riley struggling emotionally with a cross-country move with her family, leaving her home and friends behind, while experiencing the roller coaster of change that comes with being pre-pubescent. In July 2018, Pourshian commenced an action in Ontario against Pixar and other related Disney entities, seeking damages and a permanent injunction for alleged copyright infringement of Pourshian’s Inside Out by virtue of the Defendants’ production, reproduction, and distribution of their “INSIDE OUT” film.

Shortly after the action was commenced, the Defendants moved before a Master to set aside service of the claim, arguing that the Ontario court lacked jurisdiction over any of the US-based Defendants, except for Disney Shopping, Inc. (which had directly sold some INSIDE OUT merchandise in Ontario). On October 15, 2019, the Master found that the Ontario court had jurisdiction over the claims against Pixar, Walt Disney Pictures Inc., and Disney Shopping, Inc., but not against any of the other Defendants. Pourshian appealed the order in so far as it stayed the action against the other Defendants, with Pixar and Walt Disney Pictures Inc. both cross-appealing the findings of jurisdiction against them.

The Appellate Court began its analysis by restating the standard of review applicable to an appeal from a Master’s decision, namely that errors of law must be reviewed on a standard of correctness, with errors of fact or mixed fact and law requiring review on a standard of palpable and overriding error. In all, the appellate court found the Master made at least three legal errors, namely: (1) failing to analyze the meaning of “carrying on business” in Ontario; (2) only having regard to the allegations in the statement of claim and not the evidence filed by the Parties; and (3) failing to identify what “property” in Ontario was supposedly connected to each Defendant. The Appellate Court noted that once an error is identified that may have affected the outcome of a lower court’s decision, the matter is generally remitted back to that court for redetermination. However, the Appellate Court reasoned it would proceed to decide the issue on its merits, particularly given the delay that remitting the matter would have.

The general principles applicable to issues of jurisdiction were not in dispute. The established legal framework for determining whether a Canadian court has jurisdiction over a claim brought against a foreign defendant requires application of a three-part framework to determine: (1) if there is a presumptive connecting factor between the claim and the jurisdiction; (2) if there is no presumptive connecting factor, whether a new presumptive connecting factor should be recognized; and (3) if there is a presumptive connecting factor, whether the defendant can rebut the presumption by establishing facts which demonstrates the factor points only to a weak relationship between the subject matter of the litigation and the forum.

Pourshian argued the Ontario court had jurisdiction based on three alleged presumptive connecting factors: (1) Ontario is the jurisdiction of “reception” for the defendants’ INSIDE OUT film; (2) there is “property in Ontario” given that the copyright for the Mr. Pourshian’s film is in Ontario; and (3) some of the defendants carry on business in Ontario.

On the first alleged connecting factor, Pourshian argued there was jurisdiction over the Defendants given that their film INSIDE OUT was “received” in Canada. Previous decisions had found a presumptive connecting factor where a tort was committed in the jurisdiction where the action was brought. The Appeal Court reasoned that since copyright infringement is essentially a statutory tort, a presumptive connecting factor could be analogized to where alleged copyright infringement occurred in the jurisdiction where the action was brought. In relying on the Supreme Court of Canada’s decision in SOCAN v. Canadian Association of Internet Providers, 2004 SCC 45, the Court noted that copyright infringement can occur where a communication was transmitted from and where it was received. If the communication originated in another jurisdiction but is ultimately made available in Ontario, Ontario is one of the places where copyright infringement occurred, and it is one of the jurisdictions substantially affected by the copyright infringement. Consequently, the Appeal Court found a presumptive connecting factor of copyright infringement in Ontario.

The second presumptive connecting factor giving jurisdiction that Pourshian argued was that his claim was in respect of property in Ontario. Previous decisions had found that if the subject of a claim is real property, the location of the property can be a presumptive connecting factor. Pourshian argued that copyright in his film should be recognized as having the same status a real property for the purpose of determining jurisdiction. The Appeal Court accepted his argument, relying in part on the decision in Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548, which recognized intangible property (a domain name) was property for the purpose of determining a motion to set aside service of a statement of claim. The Appeal Court was satisfied Pourshian’s claim was in respect of property in Ontario given that Pourshian lives in Ontario and created his film in Ontario, and therefore, this was another presumptive connecting factor between the claim and Ontario jurisdiction.

The final presumptive connecting factor Pourshian argued gave jurisdiction was that the Defendants were carrying on business in Ontario. The Appeal Court noted that in order to make a finding that a foreign defendant carries on business in a jurisdiction, the foreign entity must have an actual presence in the jurisdiction. Because Pourshian failed to plead any facts or evidence relating to the Defendants actual presence in Ontario, the Appeal Court did not address his argument. Notwithstanding, the Appeal Court was satisfied that in a general sense, the two other presumptive connecting factors, namely copyright infringement in Ontario and property in Ontario, provided a real and substantial connection between Pourshian’s claim and Ontario. The Appeal Court then proceeded to determine whether the allegations in the statement of claim and the evidence supported finding “a good arguable case for assuming jurisdiction” on the basis of copyright infringement in Ontario and/or property in Ontario. As detailed below, ultimately the Appeal Court found that the allegations against six of the named Defendants were sufficient to find a good arguable case—reversing many of the findings from the court below—while two of the Defendants adduced sufficient evidence to rebut alleged connecting factors against them:

  1. Walt Disney Company: allegation that it is the parent company of all the other defendants, without specific allegations regarding to its involvement in making or distributing INSIDE OUT in Ontario was not sufficient to make out a good arguable case;
  2. Walt Disney Pictures Inc.: uncontested allegations that it produced INSIDE OUT and was responsible for its distribution in Ontario found sufficient for finding a good arguable case;
  3. Pixar: uncontested allegation that it filmed and produced INSIDE OUT, along with the evidence that it is the registered copyright owner of INSIDE OUT in Canada found sufficient for finding a good arguable case;
  4. Disney Enterprises Inc.: owner of copyright and trademark for INSIDE OUT in Canada, found sufficient to give rise to a good arguable case;
  5. Buena Vista Home Entertainment: allegations that it played a role in distributing copies of INSIDE OUT in Ontario supports finding a good arguable case;
  6. Disney Consumer Products, Inc.: allegation that it played a role in making available INSIDE OUT branded merchandise in Ontario found sufficient to give rise to a good arguable case;
  7. ABC, Inc.: allegations that it played a role in making available INSIDE OUT for distribution in theaters in Ontario and authorized distribution and showing of INSIDE OUT in theaters in Ontario through a license agreement found sufficient to give rise to a good arguable case; and
  8. American Broadcasting Companies, Inc.: the Appeal Court was satisfied that this defendant rebutted the presumptive connecting factor and was not part of the direct chain of production and distribution that led to the sale and showing of INSIDE OUT in Ontario.

The Parties had reached agreement on $30,000 in costs in the event that one party was entirely successful on both the appeal and cross-appeal. Since Pourshian was “substantially successful”, the Court determined he was entitled to $25,000 in costs. The matter is expected to continue to wind its way through the Ontario Superior Court, keeping all copyright and entertainment lawyers’, as well as content creators’ eyes peeled to see how the court will determine this copyright infringement matter, provided it is not settled out of court before a decision can be rendered.