In an interesting factual situation concerning the scope of moral rights, the Quebec Court of Appeal, in 91439 Canada ltée (Éditions de Mortagne) c. Robillard, 2022 QCCA 76, had the opportunity to determine, among other things, whether the Quebec Superior Court committed a palpable and overriding error when it ruled that there was no infringement of moral rights of a novel when damaged copies thereof were sold in a bargain store for resale. Anne Robillard (the Respondent and Cross-Appellant), an author of a popular series of books “Les Chevaliers d’Émeraude”, claimed that when her editor, Les Éditions de Mortagne (the Appellant and Cross-Respondent), sold damaged copies of her novels to Dollarama to then be sold to the public at a discounted price, they infringed her moral rights in the novels under sections 14.1(1), 28.1 and 28.2 of the Copyright Act on the basis that “the Work sold in damaged form and at a discounted price was ‘otherwise modified’ in a manner ‘prejudicial to the honour or reputation of the author" [our translation]. The Court, however, ultimately disagreed.

According to Ms. Robillard, the trial judge committed a palpable and overriding error when she failed to conclude that the sale of damaged and/or faded copies of the novel constituted a distortion, mutilation or modification of the damaged novels sold, thereby constituting a moral rights infringement. As pled by Robillard: “the physical structure containing the work was altered since the books sold by Les Éditions de Mortagne to the reseller were badly damaged, which would constitute an infringement of her moral rights, an infringement accentuated by their subsequent sale in stores of the Dollarama chain specializing in the sale of articles at very low prices and, according to what she alleges in her brief, of inferior quality. In so doing, [Robillard’s] honour or reputation would have been prejudiced” [our translation].

While this factual situation certainly poses an interesting question regarding the integrity of the work under section 28.2(1) and what actions constitute an infringement thereof, the Court found itself unable to grapple with the substantive elements of moral rights infringements, having found that Ms. Robillard had adduced insufficient evidence to conclude that the judge committed a manifest error. Such a dearth of evidence presented no grounds upon which the Quebec Court of Appeal could render a new decision of the alleged infringement. As the Court of Appeal explained, there was no evidence adduced by Ms. Robillard that the books sold at Dollarama were “in such poor condition that they were (unsellable)" [our translation]. In fact, the evidence introduced by Les Éditions de Mortagne rather suggested the opposite – of the more than 10,000 copies ultimately sold to Dollarama, a number less than that was eventually put on the market as not all of the copies were of an unsaleable quality. Further, all copies that were eventually put up for sale had to first undergo a full cleaning and purification, a process during which all unsalvageable copies were omitted. Such a factual finding seriously undermined Ms. Robillard’s argument that copies of an unsaleable quality were put on the shelf and ultimately led to the Court of Appeal dismissing Ms. Robillard’s appeal.

In the end, the Court of Appeal granted in part the appeal of Les Éditions de Mortagne on grounds unrelated to moral rights. However, this case should serve as a reminder that any litigant that seeks to demonstrate that there has been an infringement of their moral rights must be certain that their argument is supported with sufficient evidence.