As reported previously, 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 unauthorized access to copyrighted television content. This was found to amount to irreparable harm to the Plaintiffs, which are 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 such “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 (5) original Defendants, Mr. Vincent Wesley doing business as MTLFreeTV.com, appealed from 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 have an incentive to permanently cancel their subscription with the Plaintiffs given that these set-top boxes are specifically advertised by the Defendants as means to “cut the cord”.

The Plaintiffs (Respondents on appeal) were successfully represented by François Guay, Guillaume Lavoie Ste-Marie and Jean-Sébastien Dupont of Smart & Biggar’s Montreal office.