COURT OF APPEAL FOR ONTARIO

CITATION: Miguna v. Walmart Canada Corp., 2016 ONCA 174

DATE: 20160301

DOCKET: C61022

van Rensburg, Pardu, and Miller JJ.A.

BETWEEN

Miguna Miguna

Plaintiff (Appellant)

and

Walmart Canada Corp., Walmart Stores, Inc. and Consortium Book Sales and Distribution LLC

Defendants (Respondents)

Miguna Miguna, in person

Antonio Turco and Sarah O’Grady for the respondent Walmart Stores, Inc.

Dominique Hussey and Ilan Ishai for the respondent Consortium Book Sales and Distribution LLC

Heard: February 22, 2016

On appeal from the order of Justice Graeme Mew of the Superior Court of Justice, dated September 18, 2015 with reasons reported at 2015 ONSC 5744.

ENDORSEMENT

[1] Miguna Miguna is the author of a book entitled Peeling Back the Mask: A Quest for Justice in Kenya. It is an account of political corruption in Kenya, published in 2012 by Gilgamesh Africa Ltd. in the United Kingdom. Mr. Miguna has alleged that Gilgamesh Africa and other entities have published and sold unauthorized editions of the book, retaining the proceeds that are rightfully his. He alleges that thousands of unauthorized copies of the book have been printed and sold in North America, and he has sought redress through several actions in Ontario.

[2] This is one of those actions. Mr. Miguna alleges that the respondent Consortium Book Sales and Distribution, LLC (“Consortium”) illegally reproduced and sold thousands of copies of the book, some of which he alleges were sourced by a third party distributor, Baker & Taylor Fulfilment, for sale through the website walmart.com in the United States. He alleges primary and secondary copyright infringement against Consortium, and secondary copyright infringement against the respondent Walmart Stores, Inc.

[3] Walmart Stores, Inc. is a corporation operating Walmart retail stores in the United States. Its affiliate Walmart.com USA LLC (‘Walmart.com USA’) manages web-based sales of products in the United States on the website located at walmart.com. Walmart.com USA is not a party to this action.

[4] Consortium distributes books from independent publishers to wholesalers and retailers, including Walmart.com USA.

[5] In 2014, Mr. Miguna became aware that the book was listed for sale on the website walmart.com, and that the website named Consortium as the publisher of the book. He concluded that Consortium had published a version of the book without his consent or knowledge, and that this unauthorized version was being sold by Walmart Stores, Inc. in violation of his copyright.

[6] He brought this action, alleging that Consortium: (1) directly infringed his copyright by printing or reproducing copies of the book without his consent (primary infringement); and (2) indirectly infringed his copyright by distributing, selling, or exposing or offering for sale copies of the book, which it knew or ought to have known were printed, produced or reproduced without his consent (secondary infringement). As against Walmart Stores Inc., Mr. Miguna pursued a claim of secondary infringement.

[7] The respondents were successful on a motion for summary judgment and the action was dismissed.

[8] The motion judge concluded that there was no evidence that either of the respondents had published the work, which is a prerequisite for proving primary infringement. He also concluded that Mr. Miguna had not made out any of the three necessary elements for secondary infringement. In particular, that Mr. Miguna had not established that infringing copies of the book had been published, that the respondents knew or ought reasonably to have known that they were dealing with infringing copies, or importantly, that either respondent had handled, distributed or offered for sale infringing copies of the book. The motion judge also concluded that there was no evidence that the respondents or anyone else ever failed to attribute authorship of the book to Mr. Miguna. Accordingly, the motion judge dismissed Mr. Miguna’s claim that his moral rights were infringed.

[9] Mr. Miguna has appealed. Although he raises several grounds of appeal, the overarching issue is whether the motion judge made a palpable and overriding error in finding that “there is an ample evidentiary record … [to] conclude that neither of the moving parties ever physically received or sold, in North America let alone in Canada, a copy of Peeling Back the Mask.”

[10] Mr. Miguna argued that the motion judge failed to apprehend key evidence establishing that the respondents in fact held physical copies of the book in stock. In particular, he argued that: (1) the business records of Consortium documented sales of the book; (2) General Counsel for Walmart, in a letter dated October 24, 2014, identified Baker & Taylor as the “supplier of the book”, which implied that Walmart Stores Inc. held a supply; and (3) an affidavit from Baker & Taylor in another proceeding established that Baker & Taylor had supplied two American universities with two copies of the book that it had received from Consortium (the “Baker & Taylor affidavit”).

[11] These submissions are without merit: (1) the business records in evidence are clear that the only sales of the book were unfilled backorders; (2) the October 24, 2014 letter cannot bear the interpretation that Mr. Miguna assigns to it; and (3) the motion judge reasonably and permissibly preferred the preponderance of the evidence before him to the untested Baker & Taylor affidavit.

[12] The motion judge’s findings of fact are all supported by evidence and entitled to deference.

[13] However, some further comment on the Baker & Taylor affidavit is necessary. At the hearing of the summary judgment motion, the motion judge refused Mr. Miguna’s motion to strike a paragraph from Walmart Stores, Inc.’s factum. Mr. Miguna had objected to the paragraph in question on the grounds that it relied on material not in evidence: a letter from Baker & Taylor’s lawyer addressing the Baker & Taylor affidavit. Counsel for Consortium advised the motion judge that it expected to introduce this letter into evidence through a forthcoming affidavit.

[14] The motion judge was not willing to rely on the letter. Although he dismissed Mr. Miguna’s motion (which was a permissible exercise of his discretion) the transcript reveals that he nevertheless shared Mr. Miguna’s concern about the reference to the intended affidavit. He disregarded it as nothing more than an assertion of counsel. Significantly, Mr. Miguna was unable to point to any place in the motion judge’s reasons that would suggest that the motion judge relied on this material, and merely speculates that he must have relied on it in rejecting the claim that the respondents stocked physical copies of the book. We reject this argument. There was ample evidence before the motions judge to enable him to conclude that neither of the respondents ever physically received or sold a copy of the book.

[15] Finally, we reject Mr. Miguna’s claim of bias on the part of the motion judge. The record discloses that Mr. Miguna was given a fair and impartial hearing, and that the motion judge carefully and properly determined the motion based on the evidence before him and the parties’ submissions.

[16] The appeal is dismissed. Costs are awarded to the respondents in the amount of $20,000 each, inclusive of disbursements and HST.

“K. van Rensburg J.A.”

“G. Pardu J.A.”

“B. Miller J.A.”