Injunction Principles Apply to Motion for Gag Order
Canadian Private Copying Collective v. Blue Media Group Inc., 2010 FC 328 (Phelan, J.)

March 23, 2010

Randy Sutton for the Plaintiff, Canadian Private Copying Collective
Orie Niedzviecki for the Defendants, Blue Media Group Inc., Computer Ultra Corporation and Computer Ultra Distribution Inc.

The Defendants requested an Order preventing the Plaintiff from contacting the Defendants’ customers who may have evidence relevant to the pending litigation, without first obtaining the Defendants’ consent or an Order from the Court.  The motions were dismissed.  The Court held that the Order sought is akin to an injunction and as such, applied injunctive relief principles to the motions.  The Court found that the Defendants failed to meet all elements of the tripartite test.  Given that there is no property in a witness and there is no evidence that the Plaintiff breached the implied undertaking on discovery that the matters disclosed are only used for the litigation, the Defendants failed to establish that there was a serious issue to be tried.  The Defendants also failed to establish harm.  Finally, having regard to the fact that the Plaintiff has the burden of proof in the litigation, the Plaintiff’s rights to properly and effectively conduct its pre-trial and trial activities trump the Defendants’ interest in isolating its customers.

By: Charmane Sing, Borden Ladner Gervais LLP