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Disney Enterprises Inc. v. Click Enterprises Inc. (2006) 267 DLR (4th) 291 (Ont SCJ)

Facts:

the respondents conducted an Internet retail business for profit that facilitated the illegal copying and downloading of copyrighted motion pictures. They advertised on Google and had testimonials from American customers. The payments were processed from US customers through companies incorporated in the U.S. A default judgment was entered as D said it was “too expensive”.

Issue(s):

Is there a “real and substantial connection” to New York in a borderless Internet world?

Ratio:

Purchase from a website is sufficient to establish jurisdiction in the place of purchase.

Analysis:

“A foreign judgment will be recognized in Ontario if it is a final in personam judgment for a definite sum of money given by a court that had jurisdiction to issue the judgment.”

For this to be so court must be properly exercising jurisdiction
-Morguard sets out two concerns the need for order and fairness and the need for real and substantial connection
--Order and Fairness: The fact that there were American customers and the copyright belonged to American residents provide reasons for the New York Court to have exercised jurisdiction
--Real and Substantial connection: Either with subject matter or persons

“a defendant can reasonably be brought within the embrace of a foreign jurisdiction’s law where he or she has participated in something of significance or was actively involved in that foreign jurisdiction.” (Beals)
-Unfainress will be dealt with at the level of forum non conveniens

While internet activity is inherently without specific jurisdiction the act of giving and receiving money is not and here the first took place in the U.S.

(Moran) “By tendering his products in the marketplace directly or through normal distributive channels, a manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods.”

Besides which federal rules in the U.S. put the jurisdiction there given that the customers were there.

There are three defences:
-Fraud: Not raised here
-Natural justice: Rules are similar there so not really a problem
-Public Policy: This is very narrow and must outright contradict Canadian public policy

Holding:

P wins.


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