2022 QCCA 1083, 2022 QCCA 1083

Marvel Entertainment c. Horizon Comics Productions Inc. 2022 QCCA 1083 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-030036-222 (500-17-116501-217) DATE: May 25, 2022 BEFORE THE HONOURABLE CHRISTINE BAUDOUIN, J.A. MARVEL ENTERTAINMENT, LLC THE WALT DISNEY COMPANY MARVEL STUDIOS, LLC MVL FILM FINANCE, LLC MARVEL WORLDWIDE INC. THE WALT DISNEY COMPANY (CANADA) LTD., formerly known as BUENA VISTA PICTURES DISTRIBUTION CANADA INC. APPLICANTS – Defendants v. HORIZON COMICS PRODUCTIONS INC.

RESPONDENT – Plaintiff JUDGMENT [ 1 ] Applicants seek leave to appeal the judgment rendered on March 15, 2022, by the Superior Court, District of Montreal (the Honourable Jérôme Frappier) [1] , dismissing their application to dismiss for want of jurisdiction [2] , res judicata and abuse of process. The scope of the leave application is however limited to the issue of jurisdiction and res judicata . [ 2 ] The factual backdrop of this case is fully set out in the reasons of the judge and need not be repeated at length.

It is sufficient to say that Applicants are being sued by Respondent for alleged copyright infringement due to purported similarities between various characters in the Avengers movie franchises and that of two characters in the Radix comic books for which Respondent owns all copyrights. The suit comes after two similar actions between the same parties were dismissed by two different district courts of the United States, the first for lack of jurisdiction and the second on the merits. While the second action was still pending, two more films within the Avengers franchise were released, including in Canada.

Respondent took cognizance of those films which are now the basis of their Québec action. [ 3 ] In support of their application, Applicants submit that the judge committed several errors of law and one error of mixed fact and law. On the matter of jurisdiction, they contend that the real and substantial connection test of Article 3148(3) CCQ was not applied to each defendant, and that the test applied for jurisdiction under 3148 CCQ was in fact incorrect.

As for res judicata , they allege that the judge did not apply the correct criteria to determine the identity of cause, that his assessment on the matter was erroneous and that he failed to consider how two actions based on different statutory provisions may still share the same cause.

They also allege that the wrong criteria were applied for identify of object. [ 4 ] More generally, Applicants take issue with the fact that the judge avoided ruling on certain questions raised by their dismissal application, and left it for the trial judge to make a more informed decision on the matter after full and complete proof is administered at trial.

In their view, and no matter how complex or novel, a judge seized of an application to dismiss has a duty to decide the questions of law raised. *** [ 5 ] Judgments dismissing an application to dismiss do not generally qualify as a judgment causing irremediable harm or deciding in part of the dispute within the meaning of

Article 31, para. 2 CCP [3] . When the grounds advanced for dismissal pertain to jurisdiction or res judicata however, and subject to the interests of justice, leave may exceptionally be granted [4] . More particularly as it relates to grounds of dismissal based on lack of jurisdiction, it is accepted that it be best to resolve those grounds of dispute in limine litis .

Save and except special circumstances, a judge seized of an application to dismiss on such grounds that raise strict questions of law should thus decide them and not defer the issue to the trial judge [5] . *** [ 6 ] After reviewing the evidence submitted and despite the importance for preliminary exceptions here in issue to be decided at the outset of a case, I find that the interests of justice [6] do not warrant that leave be granted.

[ 7 ] Based on the evidence before him, and following what I find to be a correct application of the legal principles, the judge concluded on a prima facie basis that the alleged injurious act (here, a copyright infringement) may have occurred in Québec thus giving Québec courts jurisdiction, and that the issue of res judicata and estoppel raised serious questions requiring additional evidence and argument despite the extensive evidence presented by Applicants. [ 8 ] Indeed, the evidence, although extensive, fell short of allowing the judge to make clear findings on the identity of cause and object criteria between the Québec action and the American proceedings.

The same can be said on the issue of estoppel and the scope of the signed document on which Applicants rely to assert that Respondent waived its right to commence an action in Canada following the dismissal of the American proceedings. Moreover, the judge identified several questions of mixed fact and law raised by the dismissal application that he found could only be answered following a full evidentiary hearing at the trial stage.

FOR THESE REASONS, THE UNDERSIGNED : [ 9 ] DISMISSES the Applicants’ Application for leave to appeal of a judgment rendered in the course of proceeding and for stay of proceedings, the whole with legal costs in favour of the Respondent. CHRISTINE BAUDOUIN, J.A. Mtre Élodie Dion ROBIC Mtre Timothy Lowman AIRD & BERLIS For Applicants Mtre Julie Desrosiers Mtre Patricia Hénault FASKEN MARTINEAU DUMOULIN For Respondent Date of hearing: May 24, 2022