Copyright suit for book never sold in Canada summarily dismissed

A recent ruling of the Ontario Superior Court is a reminder to plaintiffs that they must present more than bald allegations that evidence of infringement has been contorted or suppressed in order to discharge their burden when defending a motion for summary judgment.

In Miguna v. Walmart Canada et al., 2015 ONSC 5744, the defendant brought a summary judgment motion seeking the dismissal of the Copyright Act infringement claim commenced by the plaintiff, Mr. Miguna, a Kenyan Canadian residing in Ontario who had served as senior adviser to the prime minister of Kenya. Mr. Miguna had authored an insider account of corruption within the Kenyan government in a book entitled “Peeling Back the Mask,” published by Gilgamesh Africa Ltd. in 2012. Mr. Miguna asserted that the publishing agreement with Gilgamesh was a fraud from the beginning, and he terminated the publishing contract in January 2013.

In August 2014, Mr. Miguna discovered his book was being offered for sale on the walmart.com website. The website was controlled by Walmart.com USA LLC, an affiliate of the named defendant, Walmart Stores Inc. The named publisher of the book on walmart.com was Consortium Book Sales and Distribution LLC.

In October 2014, Mr. Miguna started an action for copyright infringement against Consortium and Walmart US. After the exchange of pleadings and affidavits of documents in this action, Walmart and Consortium brought a motion for summary judgment seeking dismissal of the action. Justice Mew stated that summary judgment is appropriate where there is no genuine issue for trial, and applied the test endorsed by the Supreme Court of Canada in Hryniak v. Maudlin: summary judgment motion is appropriate where a court can make the necessary finding of fact and can apply the law to facts, and where the process is a proportionate, expeditious and less expensive means to achieve a just result.

The issue before the Court on the summary judgment motion came down to whether the defendants directly infringed Miguna’s copyright, whether they indirectly infringed his copyright by importing into Canada a copy of a work that the person knows or should have known would infringe copyright had it been made in Canada by the person who made it, or whether they infringed Miguna’s moral rights.

The Court found that all the facts necessary to resolve the dispute were in front of the court, and that they were not in dispute. There was no evidence that anything other than the originally published book had been sold or offered for sale in North America, that persons located in Canada could not actually purchase from the walmart.com website, and the representation made on walmart.com that Consortium was the publisher was a mistake.

In granting the defendant’s motion for summary judgment, Justice Mew held:

[51] While there are some inconsequential inconsistencies in aspects of the evidence adduced by all parties, there is ample evidentiary record upon which I can confidently conclude that neither of the moving parties ever physically received or sold, in North America let alone Canada, a copy of “Peeling Back The Mask”…

…

[56] Ultimately, the evidence does not satisfy me that there is anything close to a significant connection between Mr. Miguna’s claims and Canada. Consequently the rights and remedies provided by the Copyright Act cannot be engaged.

A copy of the decision may be found here.