Jury notice struck in IP case on whether Food Network took idea from producer who pitched show

BC Supreme Court judge rules case is too "intricate and complex" for a jury to deal with properly

Jury notice struck in IP case on whether Food Network took idea from producer who pitched show
Scott Foster, Seastone IP LLP

In a decision believed to be the first in Canada involving an intellectual property dispute, a British Columbia Supreme Court judge has struck a jury notice, ruling that details of the litigation are so intricate and complex a judge should try the case alone.

“I am of the view that the intricacy and complexity of the issues raised by the plaintiffs in this case,” Justice Jacqueline Hughes ruled last week in a motion related to long-running litigation in Andrew John Henni et al V. Food Network Canada et al.

“Particularly with respect to their copyright claim and the apportionment of damages if that claim is made out, [a jury] will impede and undermine the efficacy of the trial process and the confidence that the parties can have in the trial’s outcome if it were to proceed as a jury trial.”

The case involves whether the defendants – Food Network Canada, Cineflix Media Inc., along with other television production entities – allegedly “stole” the plaintiffs’ pitch for a television series that centred on the making of food in factories. 

Scott Foster, a co-founder of Seastone IP LLP, says that jury trials in intellectual property cases are virtually unheard of in Canada, unlike the United States.

The Federal Court of Canada tends to hear most IP cases with no jury, he says, and at the trial level in most provinces, IP-related cases are generally not heard by trials. Most trial courts across Canada also have rules of procedures where jury trials are not allowed in IP cases. In BC, one can apply for a jury trial in an IP case if it meets certain conditions. However, Foster says it is up to the other party to seek a motion to strike the jury notice.

The plaintiffs claim that Food Network Canada rejected their submission for a show concept called “Food Factories” but then commissioned Cineflix to produce a program called “Food Factory,” which they say is virtually identical to “Food Factories.”

The defence argues the validity of the terms of a release of proprietary rights that one of the plaintiffs, Andrew Henni, signed when he submitted the “Food Factories” concept to Food Network Canada. Shaw Media is the parent company of Food Network.

The defendants also say that the plaintiffs’ “Food Factories” concept was not original and, therefore, not subject to copyright protection.

Food Factory first aired in August 2012, and the plaintiffs took legal action the following year. The case has moved slowly, primarily because of issues that include changes made to the claim and the time needed to review documents.

A trial on the matter is scheduled for 24-days beginning Oct. 2, 2023. The parties expect that approximately 24 fact witnesses will testify at trial: five for the plaintiffs and 19 for the defendants. Expert evidence is also likely to be given on both liability and damages.

The issue on the application ruled on by Justice Hughes in the decision released Oct. 3 deals with whether the jury notice filed by the plaintiffs in this action ought to be struck. Determination of this matter turned on two points:

  • Whether construction of Henni’s release is the principal issue in this litigation and therefore comes under Rule 12-6(2) of the BC Supreme Court Civil Rules, which says a trial must be held without a jury if the case deals with the performance of a specific contract.
  • Whether the claim is otherwise not suitable for trial by jury because the issues raised are of an intricate or complex character and require prolonged examination of documents, which cannot be made conveniently with a jury.

The plaintiffs claimed that the construction of the release is “an ancillary and minor matter” that is not the central focus of the trial. The plaintiffs also argued a trial would not require a prolonged examination of documents or raise intricate or complex issues.

However, the defendants argued that the nature of the release, a contract, “is the principal issue in the litigation.” The defendants also claimed that the issues are unsuitable for a jury under Rule 12-6(5)(a) of the civil rules because they are “intricate and complex” and will require a prolonged examination of documents that a jury cannot conveniently do.

In her ruling, Justice Hughes granted the defendants’ application and ordered a judge-alone trial.

“In my view, these issues would benefit from the additional time for reflection and deliberation that trial by judge alone provides,” Justice Hughes wrote. “I find that it would be exceptionally difficult for a judge to be able to adequately instruct a jury with respect to the intricacies of liability in copyright law and the apportionment of damages required under the Act if liability were to be found.”

Justice Hughes noted the complexity of issues at play, in this case, would require a complex jury charge that may be “difficult to formulate into appropriate questions” for the jury. “Difficulty framing questions for a jury is an indicator of sufficient complexity to warrant striking a jury notice.”

She added: “I am also not satisfied that a jury, once instructed, would be able to retain and apply such instructions adequately or have the opportunity, given the constraints inherent in jury deliberations, to give the issues put before them sufficient and reasoned consideration. In the circumstances, I am satisfied that the issues raised in this case are of sufficient complexity that they cannot conveniently be determined by a jury.”

Foster says that a judge can take their time with a decision and review the evidence. In contrast, a jury must decide at the end of the trial, however long it takes, depending on how complicated the evidence is.

A judge-alone trial has a “different timeframe and ability to review all the documents, whereas the jury is making a very much first impression decision,” Foster says.

Evidence in a civil trial can be very document heavy these days, Foster says, given that the Internet has provided the ability to produce potentially thousands of documents – whether it is emails, financial statements, texts or other documents.

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