Court File and Parties

COURT FILE NO.: CV-17-577020

DATE: 20211217

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WISEAU STUDIO, LLC and TOMMY WISEAU d.b.a. WISEAU-FILMS Plaintiffs/Responding Parties

AND:

RICHARD HARPER, FERNANDO FORERO MCGRATH, MARTIN RACICOT d.b.a. ROCKHAVEN PICTURES, ROOM FULL OF SPOONS INC., PARKTOWN STUDIOS INC. and RICHARD STEWART TOWNS Defendants/Moving Parties

BEFORE: S.F. DUNPHY J.

COUNSEL: Matthew Diskin & Kristin Aucoin, for the Applicants Daniel Brinza, for the Respondents

HEARD: December 17, 2021

ENDORSEMENT

[1] The defendant moving party has brought before me an “anti-suit” injunction. The requested injunction would go somewhat further than disposing of the two claims which gave rise to the motion in that it would also block any further potentially related proceedings being brought anywhere in the world related to the production of the film that lies at the heart of this saga. This is a story best related from the beginning.

[2] The defendants created a movie called “Room Full of Spoons” in 2016. The movie is a documentary about the making of another movie, this one created by the plaintiff in 2003 called “The Room”. The plaintiffs are the owners/creators of “The Room” and strongly objected to the documentary as amounting to a breach of their property rights in the original movie. A statement of claim was issued and injunction sought. The parties have been locked in litigation since and, judging by the various reported cases spun off, the litigation has been, well, litigious.

[3] An eight-day trial was held before Shabas J. in early 2020, resulting in a judgment dismissing the plaintiff’s claim and granting the defendant’s counterclaim for damages arising from the injunction. That decision was released in April 2020. The plaintiffs were not satisfied with that ruling and brought a motion to vary it on the basis of alleged new evidence. That motion was heard and dismissed for reasons released on June 5, 2020.

[4] From there, the matter moved to the Court of Appeal. That Court took the relatively unusual step of requiring security for the judgment to be posted as a condition of permitting the appeal to proceed in a decision released earlier this year. The security was not posted and the appeal was accordingly dismissed without further hearing.

[5] Two things have happened since. First, the unsuccessful plaintiffs brought an action in the Federal Court on July 6, 2021 alleging a breach of copywrite under s. 41.1(1) of the Copyright Act, R.S.C. 1985, c. C-42 by reason of the alleged steps taken by the defendants to defeat anti-duplication technology used by the plaintiffs. That issue was raised at trial before Schabas J. who declined to hear it on the basis that it had not been pleaded, had not been gone into on discovery and thus could not fairly be raised at trial.

[6] Second, the plaintiffs have commenced a fresh action before this court on August 13, 2021 (CV-21-00667074-0000) seeking “damages for fraudulent misrepresentation in respect of representations made by the Defendants during mediation, pre-trial discovery and evidentiary stages, pre-trial motions, at trial, during post-trial motions, at the appeal stage and during motions at the appeal stage”.

[7] This anti-suit injunction application is in response to both of those developments.

[8] I am not satisfied that a full-bore “anti-suit” injunction is called for at this juncture although clearly I do not preclude an application being made at a later date should circumstances warrant. The nature of the injunction sought is broad and very closely resembles an order to stop a vexatious litigant that might be sought under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43. It seems to me that the broad injunction sought here cannot be justified under the more general injunction provisions of the CJA if it cannot also be justified under s. 140 where the relief sought is substantially the same. While the facts of this case certainly approach the threshold of a s. 140 application, I cannot find that it has yet crossed that threshold.

[9] A bazooka is not needed where a precision fly swatter will do.

[10] The Superior Court action commenced earlier this year is quite clearly an abuse of process. If one were to read the claims enumerated in the Statement of Claim with the assumption that the trial judgment and the decision of the Court of Appeal are both final and binding and cannot be collaterally challenged in a separate proceeding, there is simply nothing left of the claim. It cannot stand. Both of those decisions are final and binding at this point.

[11] The plaintiffs candidly admit that they have pretty much tried every avenue open to them to attempt to re-open the trial decision and introduce fresh evidence. They were not successful in persuading Schabas J. to allow them to do so and the Court of Appeal has now closed that door with the appeal being dismissed.

[12] Procedurally, the moving party defendant ought to have brought a motion to stay the new Superior Court action under Rule 21 in that proceeding instead of in this one (the original 2017 action in which Schabas J. granted his judgment). That is a technical defect without substantial impact: the issues are fairly raised in the Notice of Motion and the parties are all before me.

[13] I am ordering that the 2021 Superior Court action shall be stayed as an abuse of process.

[14] The respondent has raised issues regarding the applicability of issue estoppel or cause of action estoppel as regards the Federal Court action citing the decision of Schabas J. not to deal with the s. 41.1 issue at trial. The moving party defendant assures me that their claim to bar that proceeding is rock solid despite those issues raised. In my view, the proper forum to make those arguments and receive a decision is the court before whom the s. 41.1 issue has been raised: the Federal Court.

[15] While I accept that anti-suit injunctions may in appropriate cases be sought in respect of domestic as opposed to merely foreign proceedings, it is fair to say that the jurisprudence since Amchem Products Incorporated v. British Columbia (Workers' Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 SCR 897 suggests that this court should be slow to leap to that answer. The Federal Court is entitled to deference from this court and is fully as capable as this court is of hearing the dispute and deciding it.

[16] I would therefore decline to delve into the arguments for and against the application of res judicata, cause of action estoppel or issue estoppel that the moving party defendant was keen to raise before me. Those arguments should be addressed to the Federal Court which is perfectly capable of applying them to determine what should be done with a cause of action under a statute which lies somewhere near the very core of that Court’s jurisdiction. I decline to stay the Federal Court proceeding and instead defer the decision to that Court.

[17] I observe that I have held back from issuing an anti-suit injunction at this stage but I have not precluded a fresh application should further facts make that advisable. This battle has been a long and drawn out affair. Finality is a very important value in our judicial system without which it would literally collapse. The plaintiff’s principal addressed the court directly at the close of this motion to assure me of his good faith and intention not to abuse the court’s process in any way. I shall take him at his word on that. I accept that he is disappointed – even very disappointed. We as judges know that we shall not always convince litigants that our decisions are correct. We do hope to convince them that we have been fair in rendering them and we do expect them to respect their finality when recourse has run out.

[18] I issued the foregoing decision at the close of argument and have outlined my reasons above. I proposed that with success on the motion being divided, there should be no order as to costs. Both parties were prepared to live with that outcome and I so order.

S.F. Dunphy J.

Date: December 17, 2021