July 27, 2021
In Canadian Standards Association v. P.S. Knight Co. Ltd., 2021 FC 770, the Federal Court held that the respondents were in contempt of court for breaching the terms of two judgments of Justice Manson relating to copyright infringement.
Canadian Standards Association (“CSA”) sought an order finding the respondents, P.S. Knight Co. (“Knight Co”), Mr. Gordon Knight, and a related company, PS Knight Americas Inc. (“Knight Americas”) (collectively, “Knight Parties”) in contempt of court.
CSA alleged that each of the Knight Parties breached, or alternatively, aided and abetted another Knight Party to breach, the terms of an Amended Judgment  and Supplemental Judgment  issued by Justice Manson (collectively, the “Judgment”).
The Judgment declared that Knight Co had infringed CSA’s copyright in a 2015 edition of the Canadian Electrical Code Part I (“2015 CSA Code”), and ordered delivery up to CSA of all copies of the infringing publication (“Knight Code”). Knight Co, its officers, directors, employees and any related companies under its control were permanently enjoined from reproducing, distributing or selling the Knight Code, or otherwise doing any act to contravene CSA’s copyright without CSA’s express written permission.
CSA alleges that since October 2020, the respondents have resumed reproduction, distribution and sales of infringing publications through a newly incorporated entity, Knight Americas.
Contempt of court is criminal or quasi-criminal in nature. Therefore, a finding of civil contempt requires that three elements be established, to the criminal standard of proof – beyond a reasonable doubt:
The order alleged to have been breached must state clearly and unequivocally what should and should not be done;
The alleged contemnor must have had knowledge of the order; and
The alleged contemnor must have intentionally carried out the act that the order prohibits or failed to carry out the act that the order requires.
Clear and unequivocal order
There is no question that the Judgment was in force at the time of the alleged acts of contempt. However, the Knight Parties assert that their activities did not fall within the scope of the Judgment and argued that the Judgment was insufficiently clear about whether it applied to parties other than Knight Co. and to editions other than the 2015 Knight Code.
The evidence establishes beyond a reasonable doubt that Mr. Knight is a director of Knight Co. and Knight Americas is a related company. The Judgment clearly applied to all three Knight Parties.
The Court further held that the terms of the Judgment were clearly not limited to the 2015 edition of the Knight Code, and that the Judgment clearly applied to the 24th edition of the Knight Code.
Knowledge of the Order
The Court was satisfied beyond a reasonable doubt that all three Knight Parties had knowledge of the Judgment at all material times, including at the time they engaged in the acts that contravened its terms.
Intentionally carried out the prohibited act or failed to carry out compelled act
The Court was satisfied beyond a reasonable doubt that the 2018 Knight Code reproduced a substantial part of the 2015 CSA Code, contrary to sections 3 and 27 of the Copyright Act. Such reproduction was not permitted or authorized as a result of the CSA Code having been incorporated into law, or a grant of permission under a 2018 agreement between the parties.
The Court was also satisfied beyond a reasonable doubt that the Knight Parties reproduced the 2018 edition of the Knight Code and sold and distributed it in Canada, and that they did not deliver up all copies of the 2018 Knight Code.
The Court held that the Knight Parties were guilty of contempt and ordered the proceeding to advance to the next stage, which is the hearing regarding penalty.