ExpressVu Inc. v. NII Norsat International Inc.
A-527-97
Létourneau J.A.
20/11/97
5 pp.
Appeal and cross-appeal from Trial Division decision ([1998] 1 F.C. 245) dismissing appellants' application for summary judgment and/or motion to strike statement of claim in respondents' action for damages and injunctive relief re: importation and sale of receivers (small satellite dishes) and decoders for receiving direct broadcast satellite (DBS) signals originating in U.S. from broadcasters not licensed to broadcast in Canada-Appeal and cross-appeal dismissed-Issue proper interpretation of Radio communication Act, s. 9(1)(c) read in conjunction with s. 2 definitions: no person shall decode encrypted radiocommunication intended for reception either directly or indirectly by public in Canada or elsewhere on payment of subscription fee or other charge otherwise than under and in accordance with authorization from person having lawful right in Canada to transmit and authorize its decoding-As drafted, prohibition against decoding or any encrypted radiocommunication intended for reception either directly or indirectly by public in Canada, or even elsewhere, meant to cover much more than mere theft of signals; prohibition absolute, and proper authorization can only be obtained from lawful distributor in Canada of that radiocommunication-Parties cited Report of a Task Force on Broadcasting and Parliamentary debates surrounding introduction of words "in Canada" into definition of concept of lawful distributor found in s. 9(1)(c)-Unfortunately, material filed and argued too fragmentary to ascertain proper meaning of provision-Interpretation given by Trial Judge to s. 9(1)(c) entirely supported by text of provision and providing, as intended, measure of control in Canada over unfair competition coming both from internal and external sources and inherent in reception and enjoyment of satellite services; interpretation purposeful, responsive to and warranted by text and problem it is meant to remedy, and reasonable-Radiocommunication Act, R.S.C., 1985, c. R2 (as am. by S.C. 1989, c. 17, s. 2), ss. 2 "encrypted" (as am. by S.C. 1991, c. 11, s. 81), "lawful distributor" (as am. idem), "subscription programming signal" (as am. idem), 9(1) (as enacted by S.C. 1989, c. 17, s. 6; 1991, c. 11, s. 83).