Marc Ribeiro pitched a board game, called Pick N Choose, in which players guess a word described through mime, facial expressions, drawings, or by using modeling clay.
The short segment aired on the CBC program showed the dragons guessing the word “penis.” One of the dragons, Arlene Dickinson, told Ribeiro his product might be successful “if you turn it into an adult game.”
The CBC program was introduced by a statement of the host of the program saying: “The dragons never pull punches when they spot a money-losing venture. Unfortunately, these next few ideas hit the mat … immediately”. It showed the dragons guessing the word “penis.” One of the dragons, Arlene Dickinson, told Ribeiro his product might be successful “if you turn it into an adult game.”
An Ontario Superior Court decision released June 28 says Ribeiro believed the segment was a “complete misrepresentation” of the original recording, and that CBC’s actions amounted to “gross and reckless negligence, intentional misconduct, malice and bad faith.”However, CBC applied for a summary judgment to dismiss the claims, pointing to the consent and release form signed by Ribeiro on two occasions.
Justice David Aston said: “Ribeiro is himself a lawyer. He does not dispute the fact that he had ample opportunity to read and consider the consent and release before signing it. That document speaks for itself. There are no material facts in dispute except those to be drawn inferentially.”
Ribeiro, who represented himself, argued there was an implied duty to edit the show reasonably and in good faith.
He contended that where there was contractual ambiguity, the contra proferentem principle dictated that contractual clauses should be interpreted against the author – in this case CBC.
However, Aston said: “The express terms provide exceptionally broad protection for the CBC against any liability to a participant on the program. That protection is not hidden in fine print. It is crystal clear.”
The motion for summary judgment was granted and the action dismissed. Ribeiro was told to pay costs, fixed at $7,500.
In an emailed statement, Ribeiro told Legal Feeds he had no issue with what the dragons said during the show. He said one dragon made an offer, which MHR turned down. Other dragons expressed an interest or considered making an offer, he said.
But, he added: "The broadcast segment resulted in a significant misrepresentation of how the original recording occurred, and conveyed the idea that the presentation was not taken seriously by the dragons, which was not the case."
MHR plans to appeal the decision.
Update July 8: Clarification and comments from Ribeiro