Affidavit of Claude Robinson Feb

500-09-020033-098

QUÉBEC COURT OF APPEAL

(Montréal)

On appeal from a judgment of the Superior Court, District of Montréal, rendered on August 26, 2009 by the Honourable Mr. Justice Claude Auclair. ______

No. 500-09-020033-098 C.A.M. – 500-05-021498-967 S.C.M.

CINAR PRODUCTION LES FILMS CINAR INC. APPELLANTS (defendants) v.

CLAUDE ROBINSON LES PRODUCTIONS NILEM INC. RESPONDENTS (plaintiffs) - and -

FRANCE ANIMATION S.A. CHRISTOPHE IZARD RAVENSBURGER FILM + TV Gmbh RTV FAMILY ENTERTAINMENT AG RONALD A. WEINBERG CHRISTIAN DAVIN PETER HILLE BBC WORLDWIDE TELEVISION THERESA PLUMMER-ANDREWS HÉLÈNE CHAREST McRAW HOLDINGS INC. MIS-EN-CAUSE (defendants)

RONALD WEINBERG ès qualités Liquidator of the Estate of Micheline Charest MIS-EN-CAUSE (defendant in continuance of suit)

VIDEAL GESELLSCHAFT ZUR HERTELLUNG VON AUDIOVISUELLEN PRODUKTEN MHB 3918203 CANADA INC. MIS-EN-CAUSE (mis-en-cause)

APPELLANTS’ FACTUM AND SCHEDULE

Henri A. Lafortune Inc. 2005 Limoges Street Tel. 450 442-4080 Longueuil, Québec Fax 450 442-2040 J4G 1C4 [email protected] www.halafortune.ca - 2 -

Me William Brock, Ad.E. Me Cara Cameron Me Christine Aubé-Gagnon Davies Ward Phillips & Vineberg LLP 26th Floor 1501 McGill College Avenue Montréal (Québec) H3A 3N9

Tel. : 514 841-6400 Fax : 514 841-6499 [email protected] [email protected] [email protected]

Counsel for appellants Cinar Corporation, Les Films Cinar inc. and 3918203 Canada inc.

Me Florence Lucas Me Francine Martel Me Jeanne Tugault-Lafleur Gowling Lafleur Henderson LLP 37th Floor 1 Place Ville-Marie Montréal (Québec) H3B 3P4

Tel. : 514 392-9590 Fax : 514 878-1450 [email protected] [email protected] [email protected]

Counsel for respondents Claude Robinson and Les Productions Nilem inc.

Me Pierre Y. Lefebvre Me Alain Y. Dussault Me Silviu Bursanescu Fasken Martineau DuMoulin LLP Suite 3700 800 Victoria Square Montréal (Québec) H4Z 1E9

Tel. : 514 397-7400 Fax : 514 397-7600 [email protected] [email protected] [email protected]

Counsel for mis-en-cause France Animation S.A., Christophe Izard, Ravensburger Film + TV Gmbh et RTV Family Entertainment AG

- 3 -

Me Guy J. Pratte Me Daniel Urbas Me Marc-André Grou Borden Ladner Gervais LLP Suite 900 1000 de La Gauchetière Street West Montréal (Québec) H3B 5H4

Tel. : 514 879-1212 Fax : 514 954-1905 [email protected] [email protected] [email protected]

Counsel for mis-en-cause Christian Davin

Me Michel Bernier Gravel Bernier Vaillancourt Iberville Trois Block Suite 500 2960 Laurier Blvd. Québec (Québec) G1V 4S1

Tel. : 418 656-1313 Fax : 418 652-1844 [email protected]

Counsel for mis-en-cause Hélène Charest

Me Raynold Langlois Me Dimitri Maniatis Me Jean Patrick Dallaire Me Marie-Pier Lefebvre Langlois Kronström Desjardins LLP 28th Floor 1002 Sherbrooke Street West Montréal (Québec) H3A 3L6

Tel. : 514 842-9512 Fax : 514 845-6573 [email protected] [email protected] [email protected] [email protected]

Counsel for mis-en-cause Ronald A. Weinberg and Ronald A. Weinberg, ès qualités Liquidator of the Estate of Micheline Charest

TABLE OF CONTENTS i)

Description of Documents Page

APPELLANTS’ ARGUMENT

PART I – FACTS ...... 1

I. Preliminary comments ...... 1

II. History of Cinar, Weinberg and Charest ...... 3

III. Cinar's Contractual Relationship with Pathonic, and the Absence of a Contractual Relationship with Respondents ...... 5

IV. Profits earned by Cinar from Sucroë ...... 6

V. Cinar's involvement in the creation of Sucroë ...... 8

PART II – ISSUES IN DISPUTE ...... 10

PART III – ARGUMENT ...... 11

A. The Trial Judge erred by condemning France Animation, Ravensburger, Cinar and the other Appellants to pay solidarily the aggregate profits made by all of them, as opposed to ordering each to disgorge its own profits ...... 11

B. The Trial Judge erred by failing to allow the deduction of an expense, in an amount of $1,111,201 payable by Cinar to an entity known as Jaffa Road in respect of the distribution of Sucroë ...... 13

C. The Trial Judge erred by ordering that interest be paid on disgorged profits from December 5, 1995, instead of from the date that such profits were earned ...... 15 TABLE OF CONTENTS ii)

Description of Documents Page

D. The Trial Judge erred in his subsidiary conclusion, at paragraph 908 of the Trial Judgment, that Cinar was responsible under the rules of extra-contractual liability, even if there had been no infringement of copyright ...... 16

E. The Trial Judge erred in condemning Cinar, solidarily with France Animation, Ravensburger and the other Appellants, to pay $1,000,000 in exemplary damages ...... 20

PART IV – CONCLUSIONS ...... 25

PART V – AUTHORITIES ...... 26

SCHEDULE II – ADDITIONAL PROCEEDING

Affidavit of Claude Robinson Feb. 13, 2001 27

Exhibit I-1 Articles de journaux du 20 décembre 2000 ...... 30

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 ...... 36

Exhibit I-3 Articles de journaux du 7 février 2001 ...... 84

______

Attorneys’ Certificate ...... 95 ______

Appellants’ Argument Facts

APPELLANTS’ ARGUMENT

PART I – FACTS

I. PRELIMINARY COMMENTS

1. In the 1980s, when the Respondent Claude Robinson ("Robinson") created Les Adventures de Robinson Curiosité (“Curiosité”), and in the 1990's when Christophe Izard ("Izard") created, and France Animation S.A. ("France Animation"), Ravensburger Film + TV GmbH ("Ravensburger") and the Appellant Cinar Corporation (formerly known as Les Films Cinar Inc.) ("Cinar") co-produced the Robinson Sucroë television series ("Sucroë"), Cinar was controlled by Co- Appellants, Ronald A. Weinberg (“Weinberg”) and his late wife Micheline Charest (“Charest”), who were its two most senior executives.

2. In March 2000, Weinberg and Charest resigned as senior executives of Cinar following the discovery of their misconduct relating to various aspects of Cinar's business and assets, which caused substantial harm to Cinar and its shareholders. In 2002, as a result of such conduct, they were sanctioned and personally fined $1 million each by the Quebec Securities Commission ("QSC"). They ceased to act (and were prohibited for a period of five years from acting) as Directors of Cinar or any other Canadian publicly traded company. They were prohibited from voting the shares they held in Cinar, also for a period of five years1. Further, again as a result of this wrongful conduct, Cinar instituted proceedings in 2001 against Weinberg and Charest seeking to hold them accountable for millions in damages suffered by Cinar as a result of their actions2. In 2004, Cinar was purchased by new arm’s length investors, who had no prior involvement with Cinar or in the facts at issue in this case.

1 Exhibit P-83, the press release issued by the QSC on March 15, 2002 (“QSC Press Release”), p. 11, A.C., Vol. 12, p. 4273, Tab 57. 2 Exhibit I-2 of the Affidavit of Claude Robinson dated February 13, 2001, infra, pp. 36 and ff.. 2

Appellants’ Argument Facts

3. In this factum, Cinar submits the following arguments:

(a) If there was infringement, which is denied, the Trial Judge erred by condemning France Animation, Ravensburger and Cinar (collectively the “Co-Producers”) and the other Appellants to pay solidarily the aggregate profits, as opposed to ordering each Co-Producer to disgorge its own profits to Respondents;

(b) The Trial Judge erred by refusing the deduction of an expense, in an amount of $1,111,201 payable by Cinar to an entity known as Jaffa Road.

(c) The Trial Judge erred by ordering that interest be paid on disgorged profits from December 5, 1995, instead of from the date that such profits were earned.

(d) The Trial Judge erred in his subsidiary conclusion, at paragraph 908 of the Trial Judgment, that Cinar was responsible under the rules of extra-contractual liability.

(e) The Trial Judge erred in condemning Cinar, solidarily with the other Appellants to pay $1,000,000 in exemplary damages.

4. In addition to the foregoing, in the interest of the orderly management of the appeal process, Cinar adopts and relies on the description of the facts set out in the factum filed by France Animation, Izard and Ravensburger (collectively the "France Animation Appellants") as if recited in full herein adds at the facts that follow herein below. Cinar further relies on, as if recited in full herein, the submissions made by the France Animation Appellants, particularly with respect to the issues of infringement, damages and costs, and the submissions concerning punitive damages made by the Appellant Christian Davin (“Davin”). 3

Appellants’ Argument Facts

II. HISTORY OF CINAR, WEINBERG AND CHAREST

5. Cinar, was founded by Weinberg and Charest in 1976. It was and remains involved in the development, production, post production and world-wide distribution of entertainment programming and educational products for children and families3, including as Co-producers of Sucroë.

6. Until March 2000, when trading in the shares of Cinar was halted by regulatory authorities, shares of Cinar were traded on the Toronto Stock Exchange and the NASDAQ National Market4. This cessation of trading resulted, among other things, from the discovery of the wrongdoing described in the QSC Press Release5 and in the Declaration instituting the lawsuit by Cinar against Weinberg, Charest and others filed in 2001 (the "Cinar Declaration")6.

7. For a number of years prior to their removal as officers of Cinar, Weinberg and Charest engaged in a course of wrongful conduct that was not known to, authorized or condoned by the Board of Directors of Cinar, and which caused significant prejudice to Cinar and its shareholders. In particular, but without limitation:

(a) Weinberg and Charest provided, or instructed or allowed Cinar’s employees to provide:

i) false information to the tax authorities concerning the nationality of script writers for certain productions between 1993 and 1995, as well as the involvement of Canadians in certain of Cinar's productions. When

3 QSC Press Release, p. 2, A.C., Vol. 12, p. 4264, Tab 57 and Exhibit P-188, the 1999 Cinar Prospectus, p. 27, A.C., Vol. 28, p. 11166, Tab 111. 4 QSC Press Release, para. 8, A.C., Vol. 12, p. 4264, Tab 57. 5 QSC Press Release, A.C., Vol. 12, pp. 4262 and ff., Tab 57. 6 Exhibit I-2 of the Affidavit of Claude Robinson dated February 13, 2001 A.C., infra, pp. 36 and ff.. 4

Appellants’ Argument Facts

this was discovered by the authorities, these productions were disqualified from certain tax benefits7;

ii) false information to Telefilm Canada concerning the involvement of Canadians in certain of Cinar's productions. When this was discovered by the authorities, the right of these productions to benefit from certain Telefilm programs was withdrawn8;

iii) false information to the Société des auteurs et compositeurs dramatiques (“SACD”) to the effect that the author of certain scripts was Hélène Charest (the sister of Charest), when she was not, and that Hélène Charest had received the royalties, when in fact 84% of the money she received from SACD was paid to Holdings Limited ("McRaw"), a corporation owned by Weinberg and Charest, and later to Cinar9;

(b) In 1999, Weinberg improperly transferred approximately US$108,000,000 to a company called Globe-X Management Limited in the Bahamas. As of February 27, 2002, only approximately US$40 million of the US$108 million of Cinar’s funds had been recovered10.

7 QSC Press Release, para. 36, A.C., Vol. 12, p. 4267, Tab 57. 8 QSC Press Release, para. 41 and 42, A.C., Vol. 12, pp. 4267-4268, Tab 57. 9 QSC Press Release, para. 52, A.C., Vol. 12, p. 4268, Tab 57. 10 QSC Press Release, para. 54 to 84, A.C., Vol. 12, pp. 4269-4271, Tab 57. 11 QSC Press Release, para. 85, A.C., Vol.12, p. 4271, Tab 57. 5

Appellants’ Argument Facts

8. Following the removal of Weinberg and Charest as officers of Cinar in March 2000:

(a) Cinar paid $18 million to the tax authorities to settle claims related to tax credits improperly claimed or received12;

(b) Cinar repaid Telefilm Canada a total of $2,594,05513;

(d) Cinar was only able to recover a portion of the funds improperly transferred to Globe-X Management Limited in the Bahamas and, as a result, suffered substantial losses15.

9. In January 2001, Cinar sued Weinberg, Charest and McRaw, alleging that, over a period of at least six years prior to March 2000, Weinberg and Charest abused their positions at Cinar, breached their fiduciary duties, and wrongfully and covertly misappropriated, used and misused assets of Cinar, causing substantial loss and prejudice to Cinar. Cinar also alleged that Weinberg and Charest actively concealed their wrongdoing from the non-management members of Cinar’s Board of Directors, the whole as more fully appears from the Cinar Declaration16.

III. CINAR'S CONTRACTUAL RELATIONSHIP WITH PATHONIC, AND THE ABSENCE OF A CONTRACTUAL RELATIONSHIP WITH RESPONDENTS

10. Respondent Les Productions Nilem Inc. (“Nilem”) entered into a verbal agreement with Pathonic International Limited (“Pathonic”) for a joint venture relating to Curiosité. Cinar was not part of this joint venture.

12 Exhibit I-1 of the Affidavit of Claude Robinson dated February 13, 2001, infra, pp. 30 and ff. 13 QSC Press Release, para. 43, A.C., Vol. 12, p. 4268, Tab 57. 14 QSC Press Release, para. 53, A.C., Vol. 12, p. 4269, Tab 57. 15 QSC Press Release, para. 84, A.C., Vol. 12, p. 4271, Tab 57. 16 Exhibit I-2 of the Affidavit of Claude Robinson dated February 13, 2001, infra, pp. 36 and ff.. 6

Appellants’ Argument Facts

11. On January 10, 1986, Cinar offered its services to represent Pathonic in relation to Curiosité17, which offer was accepted on February 11, 1986 (the “Pathonic Agreement”)18. Pursuant to the Pathonic Agreement, Cinar agreed to act as a "marketing and sales consultant to Pathonic" and to provide certain specified services.

12. In accordance with the Pathonic Agreement, Cinar billed Pathonic for the services it rendered and was paid in full by Pathonic for same19. The Pathonic Agreement terminated, in accordance with its terms, on July 31, 1986. Neither the Respondents, nor Pathonic, nor anyone else produced Curiosité as a television series.

13. There is no evidence of any continued collaboration between Respondents and Cinar following the termination of the Pathonic Agreement20.

14. No contractual relationship ever existed between Cinar and either of the Respondents. In particular, as appears from the Pathonic Agreement, neither Nilem, nor Robinson were parties thereto. The Pathonic Agreement contains no obligations in favour of them and, in fact, the Pathonic Agreement makes no mention whatsoever of either Respondent.

IV. PROFITS EARNED BY CINAR FROM SUCROË

15. On November 30, 1993, France Animation and Cinar entered into an international bilateral co-production agreement regarding Sucroë (the "Co-production Agreement")21.

17 Exhibit P-17, A.C., Vol. 12, pp. 3044-3048 Tab 11. 18 Exhibit P-89.6 (ERW-11), A.C., Vol. 18, pp. 6777-6780, Tab 62. 19 Exhibit P-66, letters of Pathonic, en liasse, A.C., Vol. 12, pp. 4106-4126, Tab 51; Exhibit P-89.6 (ERW-10), A.C., Vol. 18, p. 6775, Tab 62. 20 Robinson, Sept. 2, 2008 p. 239, A.C., Vol. 54, p. 22412, Tab 338; Robinson, Sept. 3, 2008 pp. 22-24, A.C., Vol. 54, pp. 22476-22478, Tab 339. 21 Exhibit P-93, Contrats de production, de coproduction ou de collaboration, en liasse, A.C., Vol. 19, pp. 7157-7239, Tab 65. 7

Appellants’ Argument Facts

16. Section 8 of the Co-production Agreement sets out, among other things, the shares of France Animation, Ravensburger22 and Cinar in the revenues generated by Sucroë. Essentially, each of France Animation, Ravensburger and Cinar earned all of the revenues from their home territories, and the net revenues from other territories (other than territories of the BBC) were divided 75% to France Animation and 25% to Cinar. While Charest signed a counterletter on the same date as the Co-production Agreement (the "Counterletter")23, which reduced Cinar’s share of the revenues from Sucroë, Cinar is not relying on same for the purpose of this appeal or the calculation set out below.

17. While the Trial Judge quantified the total revenue from the Series as being $13,345,841.1824 he could and should have, but did not, allocate such revenue between France Animation, Ravensburger and Cinar in accordance with the terms of the Co-production Agreement. This could and should have been done based on the information contained in the record25.

18. To avoid the necessity of a lengthy mathematical calculation before this Court, France Animation, Ravensburger and Cinar agree and stipulate that the total revenue was earned in the proportion of 60% for France Animation, 15% for Ravensburger and 25% for Cinar. Cinar, with the agreement of France Animation and Ravensburger, submits that this is consistent in substance with the Co-production Agreement.

22 Regarding Ravensburger’s share or involvement in the Co-Production, see also Exhibit D-22, A.C., Vol. 41, pp. 17070-17091, Tab 181. 23 Exhibit P-93, A.C., Vol. 19, pp. 7157-7239, Tab 65. 24 Trial Judgment, para. 1027 and Exhibit P-207-A2, A.C., Vol. 34, pp. 14067-14076, Tab 117. 25 Exhibits P-93 to P-106 and P-108 to P-116, A.C., Vol. 19-22, pp. 7157-8880, Tabs 65 to 87; Exhibit P-200, A.C., Vol. 32-33, pp. 13239-13638, Tab 114; Exhibit P-207, A.C., Vol. 34, pp. 14040-14076, Tab 117. 8

Appellants’ Argument Facts

V. CINAR'S INVOLVEMENT IN THE CREATION OF SUCROË

19. As explained in further detail in the Factum filed by the France Animation Appellants, France Animation first approached Cinar concerning its Sucroë project in December 1992. By this time, Sucroë had been created and developed independently by Izard in France and the central ideas and principle characters of Sucroë had already been developed.

20. France Animation always retained creative control26. The contribution of Cinar was very limited. In particular, as discussed in the France Animation Factum, Peter Sander ("Sander"), then artistic director of Cinar, met Izard in Canada with Charest in January 1993 to discuss Sucroë and suggested in March 1993, adding two child characters, a boy and a girl, and the appearance of the "Touléjours" be changed to something more acceptable to a North American audience.

21. The limited implication of Cinar in the creative aspects of Sucroë are reflected in the work division contained in the Co-production Agreement27. As early as July 6, 1993, France Animation's offer to Cinar was that its contribution be limited to providing eight scripts and story-boards, the English voices and all of the post-production, including the music28. In fact, according to the Co-Production Agreement, Guide Track, Guide Track Edit, Overall Character design, Overall BG/Layout Design, Overall Color models, Overseas studio, Overseas supervisor, PIX Edit – Retakes, Pix Post and Mix French Version were the sole responsibilities of France Animation for all the 26 episodes of Sucroë.

22. With respect to Cinar’s first main responsibility, scripts, France Animation was responsible for 18 scripts, while Cinar was responsible for only 8 scripts and

26 LaPierre, Oct. 2, 2008, p. 26, A.C., Vol. 61, p. 25376, Tab 351 and the Co-Production Agreement, Exhibit P-93, A.C., Vol. 19, pp. 7157-7239, Tab 65. 27 Exhibit P-93.2 (FA-1-A-2), p. 21, A.C., Vol. 19, p. 7201, Tab 65. 28 Exhibit D-30, Fax to Charest from Davin, dated July 6, 1993, A.C., Vol. 42, p. 17268, Tab 185. 9

Appellants’ Argument Facts

storyboards (although Cinar was allowed some input into the first 18 scripts and storyboards). Robinson, however, admitted that his story (script) was not copied in Sucroë29, and the Trial Judge agreed30.

23. With respect to Cinar’s second main responsibility, post-production, the Co-production Agreement provided that Cinar was responsible for Sound post, Music Library & Edit, Mix – International Version, English Dub and Mix English Version for the 26 episodes31. If there had been any infringement, which is denied, it would have occurred before the post-production stage.

24. The two main components of Cinar’s contribution to Sucroë are thus both unrelated and/or subsequent to any infringement alleged by Respondents.

25. On October 5, 1995, Robinson, through his attorney, wrote a letter to Cinar, care of Weinberg and Charest, alleging that Sucroë copied important elements of Curiosité32. On October 11, 1995, Cinar responded seeking additional information33. On December 5, 1995, Robinson, through a new attorney, repeated his claim of copyright infringement34 and Cinar, through its attorneys, denied the claims of Robinson and asserted that Sucroë was an independent creation and that the similarities raised by Robinson were insufficient to justify his claims 35.

26. On July 16, 1996, Respondents instituted the present proceedings against Cinar and the other Appellants.

______

29 Robinson, Sept. 8, 2008, pp. 252-253, A.C., Vol. 56, pp. 23291-23292, Tab 341. 30 Trial Judgment, para. 502 and 1004. 31 Exhibit P-93.2 (FA-1-A-2), p. 21, A.C., Vol. 19, p. 7201, Tab 65. 32 Exhibit P-40, A.C., Vol. 11, pp. 4051-4052, Tab 35. 33 Exhibit P-41, A.C., Vol. 11, p. 4053, Tab 36. 34 Exhibit P-42, A.C., Vol. 11, pp. 4054-4060, Tab 37. 35 Exhibit P-43, A.C., Vol. 11, pp. 4061-4062, Tab 38. 10

Appellants’ Argument Issues in Dispute

PART II – ISSUES IN DISPUTE

27. Cinar raises and argues herein the following grounds of appeal of the Trial Judgment:

A. The Trial Judge erred by condemning France Animation, Ravensburger, Cinar, and the other Appellants to pay solidarily the aggregate profits made by all of them, as opposed to ordering each to disgorge its own profits.

B. The Trial Judge erred by failing to allow the deduction of an expense in an amount of $1,111,201 payable by Cinar to an entity known as Jaffa Road in respect of the distribution of Sucroë.

C. The Trial Judge erred by ordering that interest be paid on disgorged profits from December 5, 1995, instead of from the date that such profits were earned.

E. The Trial Judge erred in condemning Cinar, solidarily with the other Appellants to pay $1,000,000 in exemplary damages.

______11

Appellants’ Argument Argument

PART III – ARGUMENT

A. The Trial Judge erred by condemning France Animation, Ravensburger, Cinar and other Appellants to pay solidarily the aggregate profits made by all of them, as opposed to ordering each to disgorge its own profits

28. Section 35(1) of the Copyright Act states that the victim of copyright infringement may be entitled, in addition to damages, to the disgorgement of the profits made by the infringer:

35 (1) Quiconque viole le droit d'auteur 35 (1) Where any person infringes sur une œuvre protégée en vertu de la copyright in any work that is protected présente loi est passible de payer, au under this Act, the person is liable to titulaire du droit d'auteur qui a été violé, pay such damages to the owner of the des dommages-intérêts que ce titulaire right infringed as he may have suffered a subis du fait de cette violation, et, en due to the infringement and, in addition sus, telle proportion, que le tribunal thereto such part of the profits that the peut juger équitable, des profits que le infringer has made from the contrefacteur a réalisés en commettant infringement as the court may decide to cette violation du droit d'auteur be just and proper.

29. While, exceptionally in the case of the Copyright Act, a party whose rights have been infringed may claim both damages and an accounting for profits, they remain very different remedies. Unlike damage awards, an accounting for profits is not compensatory, as stated by the Supreme Court of Canada (in a patent case): "An accounting for profits […] is measured by the profits made by the infringer, rather than the amount lost by the inventor" (Monsanto Canada Inc. v. Schmeiser, [2004] 1 S.C.R. 902 at para. 100). The object of an award of profits is to remove from the infringer all benefit from the act of infringement, not to punish the infringer (Peter Wells, "Monetary Relief – Profits" in Ronald E. Dimock, ed., Intellectual Property Disputes, Vol. 2, Carswell 2004 at 18-2).

30. An infringer should never be required to (and in fact could not) account for profits in excess of the profits such infringer actually made from the infringed work. This is a maximum, which the court can reduce, where appropriate. Thus, Cinar can only be 12

Appellants’ Argument Argument

required to account for its profits, and not the profits of the other Appellants. A solidary condemnation violates this principle. (David Vaver, Copyright Law, Irwin Law Inc., 2000 at 278 and Celanese International Corp. v. B.P. Chemicals Ltd., [1999] R.P.C. 203 (Pat. Ct.) at para. 36.)

31. Consequently, the Trial Judge erred in holding the Appellants solidarily liable to pay over the profits earned by all Appellants, instead of only condemning each of France Animation, Ravensburger and Cinar to pay over the portions they respectively earned, determined in accordance with the division of revenues referred to in paragraph 18 above.

32. Based on the information used by the Trial Judge36, below is a mathematical calculation of the profits of each of France Animation, Ravensburger and Cinar using, for illustration purposes, the total revenues of $13,345,841.18 and total expenses of $9,912,233 determined by the Trial Judge and applying the allocation of revenue referred to in paragraph 18 above :

TOTAL FRANCE RAVENSBURGER) CINAR ANIMATION (15%) (25%) (60%)

Revenues $13,345,841 $8,007,505 $2,001,876 $3,336,460

Expenses $9,912,233 $6,063,120 1,515,780 $2,333,333

Profits $3,433,608 $1,944,385 $486,096 $1,003,127

50% of $1,716,804 $972,193 $243,048 $501,564 the profits

36 Exhibit P-93.2 (FA-1-A-2), Vol. 19, pp. 7180-7202, Tab 65; Exhibit P-93.7 (FA-1-A-7), A.C., Vol. 19, pp. 7219-7224, Tab 65; Exhibit P-108, A.C., Vol. 21, pp. 8182-8214, Tab 79; Exhibit P-207-A-2, A.C., Vol. 34, pp. 14067-14076, Tab 117 and, more generally, Exhibits P-93 to P-106 and P-108 to P-116, A.C., Vol. 19-22, pp. 7157-8880, Tabs 65 to 87. 13

Appellants’ Argument Argument

33. The above calculations37 will change, moreover, to the extent that this Court accepts Appellants’ submissions with respect to revenue or expense items. In particular, if this Court accepts that the $1,117,252 of profits from the music of Sucroë should not have been included in the revenue of the Defendants, then the total profits are $2,316,356.18, to be divided between France Animation, Ravensburger and Cinar in their respective shares. Moreover, if this Court also accepts Cinar’s submissions in Section B. below, that the $1,111,201 due by Cinar to Jaffa Road was a direct expense of distribution and should have been deducted from the revenue, the total profits are $1,205,255.18, to be divided between France Animation, Ravensburger and Cinar. Again, each of the Appellants can only be condemned to pay the profits it earned and only a portion of these profits should be payable to Respondents.

B. The Trial Judge erred by failing to allow the deduction of an expense, in an amount of $1,111,201 payable by Cinar to an entity known as Jaffa Road in respect of the distribution of Sucroë

34. Pursuant to a Purchase and Sale Agreement dated as of January 31, 199438, Cinar sold 79.43% of its undivided ownership interest in Sucroë to Jaffa Road XLV Limited Partnership ("Jaffa Road"), a Florida entity, for a price of $1,853,333, which was included in the gross revenues of $13,345,841.18 referred to at paragraph 1014 of the Trial Judgment39.

37 Further, if this Court accepts the alternative arguments submitted by the France Animation Appellants to the effect that Respondents should be apportioned no more than five percent (5%) of the profits, then, France Animation, Ravensburger and Cinar would be responsible for only $97,219, $24,305 and $50,157 respectively. 38 Exhibit P-111.1, A.C., Vol. 22, pp. 8478-8495, Tab 82. 39 Exhibit P-207-A-2, A.C., Vol. 34, pp. 14067-14076, Tab 117. 14

Appellants’ Argument Argument

35. By way of a Master Distribution Agreement dated the 29th day of November, 199440, Jaffa Road then granted Cinar the right to distribute Sucroë throughout Canada and the United States in return for an agreed upon distribution of gross receipts, including a revenue guarantee of $1,111,201 payable to Jaffa Road. Therefore, while Cinar received $1,853,333 when it sold Sucroë to Jaffa Road, it agreed to pay back at least $1,111,201 to Jaffa Road.

36. Clearly, to the extent that the purchase price received from Jaffa Road, namely $1,853,333, was included in the revenues of Cinar, the amount of $1,111,201 due by Cinar to Jaffa Road was a direct expense of distribution and therefore, should have been allowed as a expense. The Trial Judge however, disallowed such expense in paragraph 1022 of the Trial Judgment stating the following:

[1022] Quant à Jaffa Road, les défendeurs commettent une erreur. Premièrement, s'ils avaient raison, la déduction devrait se lire 1 111 158$ au lieu de 1 853 333 $. Ce montant doit rester dans les revenus puisqu'il s'agit d'une reconnaissance d'une garantie de revenus. Le Tribunal n'a pas de preuve des défendeurs quant à un dédoublement de revenus.

37. The Trial Judge made a manifest error in finding that "Ce montant doit rester dans les revenus puisqu'il s'agit d'une reconnaissance d'une garantie de revenus'' and that "Le Tribunal n'a pas de preuve des défendeurs quant à un dédoublement de revenus". In fact, the deduction sought, namely $1,111,158, was an expense, an amount payable by Cinar to Jaffa Road, and not a revenue item. The issue is not one of "dédoublement de revenus", but rather, simply matching a legitimate expense against its revenue. The Trial Judge's error thus overstated the profits by $1,111,158.

40 Exhibit P-110.2, A.C., Vol. 21, pp. 8450-8468, Tab 81. 15

Appellants’ Argument Argument

C. The Trial Judge erred by ordering that interest be paid on disgorged profits from December 5, 1995, instead of from the date that such profits were earned

38. In his conclusions, the Trial Judge ordered that Appellants pay interest and special indemnity from December 5, 1995, being the date of the letter of demand sent by Respondents to Cinar, on the amount of $1,724,283 awarded as the portion of the Sucroë profits to be paid to Respondents 41.

39. Cinar submits that this was an error in law of the Trial Judge. In particular, the evidence relied on by the Trial Judge42 demonstrated that the revenues (and thus the profits) from Sucroë were only earned by France Animation, Ravensburger and Cinar over time. In fact, if we assume the conclusions of the Trial Judge concerning revenues and expenses (i.e. if we leave aside the issues raised in paragraph 33 above), the evidence shows that the profits of Sucroë were spread over a period of 15 years, as illustrated by the following table, which shows the profits earned and losses incurred by the Co-Producers each year (calculated by deducting each year's expenses from each year’s revenues) between 1993 and 2007:

Year Profit Year Profit 1993 -$2,622,398 2001 $511,152 1994 -6,517,192 2002 631,925 1995 2,122,116 2003 556,211 1996 2,492,044 2004 550,316 1997 1,465,197 2005 444,556 1998 810,408 2006 345,808 1999 412,138 2007 430,368 2000 1,009,330 TOTAL $3,433,608

41 Exhibit P-42, A.C., Vol. 11, pp. 4054-4060, Tab 37. 42 Exhibits P-93 to P-106 and P-108 to P-116, A.C., Vol. 19-22, pp. 7157-8880, Tabs 65 to 87 and Exhibit P-200, A.C., Vol. 32-33, pp. 13239-13638, Tab 114. 16

Appellants’ Argument Argument

40. It should be noted that, in the first two years, 1993 and 1994, the Co-Producers suffered significant losses resulting from the expenses incurred to produce the series. These losses must be recouped by the profits earned in subsequent years before the Co-Producers can be considered to have earned any profits overall from Sucroë. Further, in the event that this Court holds that Cinar is correct in submitting that the $1,117,252 of profits from the music of Sucroë should not have been included in the Co-Producers' revenues and that the $1,111,158 payable by Cinar to Jaffa Road should have been allowed as an expense, these amounts must be deducted from revenues to determine when the Co-Producers of Sucroë would have first begun to make a profit and how much would have been earned. Once a determination is made concerning the expenses and the revenues the Trial Judge should have taken into account, the quantum of profits per year may be determined based on the information on the record.

41. Consequently, it is submitted that the Trial Judge erred in law and that neither interest nor additional indemnity should have been awarded on profits before they were earned by the Co-Producers.

42. The conclusion of the Trial Judge that Cinar, Weinberg and Charest were responsible under the rules of extra-contractual liability on the basis that Cinar breached its contract with Pathonic and acted in bad faith was based on a misinterpretation of the Pathonic Agreement and relied on conduct entirely unrelated to the alleged copyright infringement. As a result, the Trial Judge erred and, absent the alleged infringement of Respondents' copyright (which is denied), 17

Appellants’ Argument Argument

Cinar did not commit any act or omission that gave rise to its liability to Respondents.

43. First, the Trial Judge misinterpreted the Pathonic Agreement43 in several respects. Such agreement makes no reference to either Respondent, who were not parties to same. In fact, the Pathonic Agreement only created obligations between Cinar and Pathonic. There was never any contractual relationship between Cinar and the Respondents.

44. As well, the analogy made by the Trial Judge, between Cinar and a book publisher, is manifestly erroneous44. There was never any transfer of intellectual property rights by Respondents to Cinar, Cinar never undertook to produce or broadcast Curiosité and nothing in the Pathonic Agreement prohibits Respondents from finding someone else to produce broadcast Curiosité, either before or after the term of such agreement. Cinar was simply engaged by Pathonic as a consultant, to render limited and circumscribed services set out in the Pathonic Agreement. No fiduciary or other relationship was created.

45. Further, contrary to what was found by the Trial Judge, the Pathonic Agreement contains no obligation (implicit or explicit) to return any Curiosité materials at the end of the contract, or to treat any Curiosité materials as confidential. This is unsurprising, when one considers that, pursuant to the Pathonic Agreement, Cinar’s primary mandate as “marketing and sales consultant” was the publicity of Curiosité. In fact, a number of the elements of Exhibit P-18 were distributed to dozens of persons between 1986 and 1989, including among others LBS and Disney (Exhibits P-2145, P-2246 and P-2347) and the panels48 were presented on a

43 Exhibit P-89.6 (ERW-11), A.C., Vol. 18, pp. 6777-6780, Tab 62. 44 Para. 891-894, Trial Judgment. 45 A.C., Vol. 11, p. 3787, Tab 15. 46 A.C., Vol. 11, pp. 3788-3789, Tab 16. 47 A.C., Vol. 11, pp. 3790-3791, Tab 17. 48 Exhibits P-210, A.C., Vol. 34, pp. 14079-14134, Tab 118 and P-215, A.C., Vol. 34, p. 14147, Tab 123. 18

Appellants’ Argument Argument

number of occasions to potential partners in New York, Los Angeles, Cannes and Montreal.

46. Respondents themselves, moreover, made numerous documents concerning Curiosité widely available to the industry, further demonstrating the lack of confidentiality concerning the Curiosité project and the materials provided to Cinar. In particular, approximately 5000 copies of Exhibit P-2749 were distributed at MIPTV 8750; and parts of Exhibit P-3051 were distributed to many persons at the MIPTV 8752. The public nature of the Curiosité material is furthermore consistent with the absence of any evidence that either Pathonic or Respondents sought the return of the Curiosité materials provided to Cinar at the end of the Pathonic Agreement or even when, according to Robinson, Weinberg and Charest stopped returning his phone calls and communicating with him concerning Curiosité53.

47. Consequently, the Trial Judge manifestly erred in finding that the Pathonic Agreement, either expressly or implicitly, created any obligation (or reasonable expectation) that the materials concerning Curiosité provided to Cinar would be kept confidential, or that at the end of the mandate they would be either returned to Pathonic (or Respondents) or be destroyed.

48. Second, the Trial Judge also erred in law by relying heavily on conduct entirely unrelated to the alleged copying of Curiosité to justify condemning Cinar to pay damages for civil extra-contractual liability.

49. In particular, in paragraphs 886 to 888, 902, 903 to 906, the Trial Judge relies on evidence that he believed supported the position that Weinberg and Charest did

49 A.C., Vol. 11, pp. 3820-3831, Tab 21. 50 Robinson, Sept. 2, 2008, p. 257, A.C., Vol. 54, p. 22430, Tab 338. 51 A.C., Vol. 11, pp. 3840-3960, Tab 24. 52 Exhibit P-34, A.C. Vol. 11, pp. 3978-3982, Tab 29; Robinson, Sept. 3, 2008, pp. 10-11, A.C. Vol. 54, pp. 22464-22465, Tab 339. 53 Robinson, Sept. 2, 2008, p. 239, A.C. Vol. 54, p. 22412, Tab 338. 19

Appellants’ Argument Argument

not honestly answer questions, whether in these proceedings or to other authorities, concerning their dealings with the Respondents and their involvement in the Curiosité project.

50. Even if it were true that, almost 10 years following the end of the Pathonic Agreement, Charest or Weinberg deliberately lied about knowing Robinson (which is not admitted) and that, as a result, the proceedings before the Trial Judge were unnecessarily complicated, this is irrelevant to the Respondents’ action. While there may be legal sanctions for such conduct if it indeed occurred (such as separate proceedings for contempt or for damages for abusive proceedings), the Trial Judge erred in relying on this conduct to base a claim of extra-contractual liability in this instance (Viel v. Entreprises immobilières du terroir ltée, J.E. 2002-937 (C.A.)). There is absolutely no connection between such conduct and the damages awarded by the Trial Judge.

51. Moreover, to the extent that such conduct could give rise to civil liability, it could only be the civil liability of Weinberg and Charest personally, and not that of Cinar, given that the conduct complained of was both contrary to the interests of Cinar and, for the most part, took place after March 2000 when they ceased to have any involvement in Cinar’s day to day operations and any authority to represent Cinar.

52. Finally, it is submitted that even if Cinar committed an extra-contractual fault, the damages owed to Respondents are very limited and are not the same damages that would be payable for copyright infringement.

53. More particularly, absent a violation of the Copyright Act, there is no legal basis for awarding either an accounting for profits, punitive damages or extra-judicial legal fees. This is implicitly recognized by the Trial Judge when he concludes that Respondents are entitled to compensatory damages (paragraph 908 of the Trial Judgment). 20

Appellants’ Argument Argument

54. Further, the compensatory damages to which Respondents may be entitled, if any, are very limited. Respondents failed at trial to establish that they suffered any damages that were directly caused by Cinar’s alleged violation of its extra- contractual responsibilities. In particular, they failed to prove any amount that would have been earned from Curiosité had Cinar not had any involvement with Sucroë, or any other financial losses related to same, or that even if there was communication of confidential information (which is denied), that this led to damages.

55. In fact, in 1995, when Sucroë was first aired, Respondents Curiosité project had been transformed into a collection of interactive and educational CD ROMs, merchandising and discovery tools54. Consequently, the diffusion of Sucroë, a children’s entertainment cartoon/television show, was irrelevant to Respondents' marketing of Curiosité. Nothing prohibited Respondents from commercializing their educational products.

E. The Trial Judge erred in condemning Cinar, solidarily with France Animation, Ravensburger and the other Appellants, to pay $1,000,000 in exemplary damages

56. First, the Trial Judge erred in awarding any exemplary damages in the present instance, as he based himself on facts that, even if true, are entirely unrelated to the alleged violation of Respondents’ copyright.

57. The Trial Judge explained his findings concerning what he terms the “conduite immorale et souvent illégale dans ses affaires”, as well as the unscrupulous, shameless, reprehensible and arrogant conduct of Cinar (or more specifically

54 Robinson, Sept. 3, 2008, pp.160-161 and 167-168, A.C. Vol. 55, pp. 22614-22615 and 22621-22622, Tab 339. 21

Appellants’ Argument Argument

Weinberg and Charest)55. The conduct the Trial Judge is referring to in these comments, however, is not related to the infringement of Respondents’ copyright, but instead relates to the following allegations:

(a) Cinar violated its obligations pursuant to the Pathonic Agreement56;

(b) Cinar committed “fraud” of the “authorities” in relation to the bilateral France- Canada treaty concerning the percentages that must be observed for France/Quebec co-productions57;

(d) Weinberg and Charest knowingly did not tell the truth to the RCMP concerning what they knew of Robinson59;

(e) Weinberg and Charest (with Izard) wanted to mislead the Court concerning their involvement in the creation of Surcroë60;

(f) After Respondents made their claim against Cinar, Cinar’s representatives did not treat Robinson with respect and called him a "kook"61;

(g) Davin, France Animation and Izard, throughout the proceedings, demonstrated “une conduite mensongère” and did not tell the truth to the Court62; and

(h) Davin signed artificially inflated sub-contracts to allow Cinar to obtain larger grants and created documents intended to camouflage false expenses63.

55 Trial Judgment, para. 1042 to 1046. 56 Trial Judgment, para. 1041 and 1042. 57 Trial Judgment, para. 1042, 1061 and 1062. 58 Trial Judgment, para. 1047 to 1051 and 1062. 59 Trial Judgment, para. 1045 and 1046. 60 Trial Judgment, para. 1060 and 1065. 61 Trial Judgment, para. 1053. 62 Trial Judgment, para. 1054. 63 Trial Judgment, para. 1055 to 1058 and 1061. 22

Appellants’ Argument Argument

58. These determinations of fact, which are not admitted by the Appellants, led the Trial Judge to conclude that the conduct of the Appellants (including Cinar) was, among other things, “outrageante, préméditée, délibérée”64. He states that his object in condemning the Appellants to exemplary damages is to punish “ces bandits à cravate ou à jupon, afin de les décourager de répéter leur stratagème et sanctionner leur conduite scandaleuse, infâme et immorale”65 and that doing so “enverra un message clair aux producteurs que: la fraude, la contrefaçon, la copie, les mensonges à la Cour ne sont pas tolérés”66.

59. In awarding damages on these grounds, however, the Trial Judge erred in law. In short, the object (and the result) of the Trial Judgement was to punish the Appellants for conduct that was not at issue in these proceedings and which, for the most part, if true (which is not admitted), caused no prejudice to Respondents and with respect to which only limited evidence and argument was made at trial – given that it was unrelated to Respondents’ claims.

60. The result is that, not only do Respondents receive $1,000,000 to which they are not entitled, but Cinar is punished for the unauthorized conduct of Weinberg and Charest, for which Cinar and its shareholders have already paid substantially. In particular, as appears from the facts set out in paragraph 8 above, Cinar paid restitution (of both principle and interest) to the appropriate authorities in relation to the conduct complained of by the Trial Judge and Weinberg and Charest were forced to resign from Cinar, were personally and heavily sanctioned by the Quebec Securities Commission and were sued by Cinar. The Trial Judge should, as a result, have refused to award exemplary damages, at least against Cinar.

64 Trial Judgment, para. 1065. 65 Trial Judgment, para. 1066. 66 Trial Judgment para. 1067. 23

Appellants’ Argument Argument

61. In these proceedings, the Trial Judge was called upon to decide whether Respondents’ copyright had been infringed and the consequences, if any, resulting from same. The Trial Judge was not called upon to determine the legality of the alleged conduct of Cinar, Weinberg, Charest, or any of the other Appellants in relation to the RCMP, the tax authorities, SACD, or any authorities in France and Canada and certainly not to punish Cinar for same. This alleged conduct had nothing to do with Respondents and their rights in Curiosité. This is explicitly acknowledged by the Trial Judge, at least with respect to the SACD issues, Hélène Charest and McRaw, as the Trial Judge concludes “Il n’y a aucun lien entre le stratagème et la réclamation des demandeurs”67. Consequently, by relying on these grounds to award exemplary damages, the Trial Judge erred in law.

62. If there was no intentional violation of the Copyright Act, there is no basis for awarding exemplary damages. Consequently, to the extent that this Court finds either that Cinar did not violate Respondents’ rights pursuant to the Copyright Act, or that such violations were unintentional, or that Cinar is only responsible as a result of its extra-contractual liability to Respondents, the Trial Judge erred in law in awarding Respondents exemplary damages. Moreover, the Trial Judge erred in fact and in law by awarding an amount that was excessive in light of the nature of the impugned conduct and the very significant sums awarded by the Trial Judge for the accounting of profits and other damages. In this regard, Cinar relies on the submissions of the France Animation Appellants and Appellant Davin.

63. The Trial Judge also erred in holding the Appellants solidarily liable, particularly given the different involvement of the Appellants, including Cinar (as opposed to Weinberg and Charest), in the conduct complained of.

64. The Supreme Court of Canada has stated that vicarious liability is inconsistent with the policy objectives behind punitive damages and runs contrary to the

67 Trial Judgment, para. 862. 24

Appellants’ Argument Argument

fundamental moral principles against vicarious punishment (Augustus v. Gosset, [1996] 3 S.C.R. 268; Gauthier v. Beaumont, [1998] 2. S.C.R. 3). While, in certain cases the acts of senior officers can give rise to the liability of the corporation for punitive damages (Genex Communications Inc. v. Association québécoise de l'industrie du disque, du spectacle et de la vidéo, 2009 QCCA 2201 (CanLII)), this cannot be the case where the senior officers were acting for their personal benefit, particularly as part of an over arching plan to enrich themselves through wrongful conduct that caused substantial prejudice to the corporation. (In a different context, see Lennard's Carrying Co. v. Asiatic Petroleum Co., [1915] A.C. 705 (H.L.), Export Brewing & Malting Co. v. Dominion Bank, [1937] 3 All E.R. 555 (P.C.) and, in a criminal case, Canadian Dredge & Dock Co. v. The Queen [1985] 1 S.C.R. 662).

65. In the present instance, when Weinberg and Charest's conduct in relation to, among other things, SACD and the tax authorities came to light, the conduct was not condoned, authorized or ratified by Cinar. Instead, they were forced to resign from their positions as officers. Further, the alleged dishonesty of Weinberg and Charest in their statements to the RCMP and the Court was not known to, approved of or ratified by Cinar and, in the case of their testimony in these proceedings, such was given in large part after they had ceased to act as officers of Cinar.

66. Cinar was not complicit in the wrongful conduct of Weinberg and Charest complained of by the Court, nor did it actively participate, ratify or authorize such conduct, which was in fact contrary to its interests and damaging to Cinar, and it should not, as a result, be condemned to punitive damages.

______25

Appellants’ Argument Conclusions

PART IV – CONCLUSIONS

67. The present appeal should be granted, with costs, the Judgment of First Instance should be overturned and the action of Respondents against Cinar should be dismissed with costs.

THE WHOLE, RESPECTFULLY SUBMITTED.

MONTRÉAL, January 21, 2010

DAVIES WARD PHILLIPS & VINEBERG LLP (Me William Brock, Ad. E.) (Me Cara Cameron) (Me Christine Aubé-Gagnon) Attorneys for Appellants Les Films Cinar Inc. and Cinar Corporation 26

Appellants’ Argument Authorities

PART V – AUTHORITIES

JURISPRUDENCE ...... Paragraph(s)

Monsanto Canada Inc. v. Schmeiser, [2004] 1 S.C.R. 902 ...... 29

Celanese International Corp. v. B.P. Chemicals Ltd., [1999] R.P.C. 203 (Pat. Ct.) ...... 30

Viel v. Entreprises immobilières du terroir ltée, J.E. 2002-937 (C.A.) ...... 50

Augustus v. Gosset, [1996] 3 S.C.R. 268 ...... 64

Gauthier v. Beaumont, [1998] 2. S.C.R. 3 ...... 64

Genex Communications Inc. v. Association québécoise de l'industrie du disque, du spectacle et de la vidéo, 2009 QCCA 2201 (CanLII) ...... 64

Lennard's Carrying Co. v. Asiatic Petroleum Co., [1915] A.C. 705 (H.L.) ...... 64

Export Brewing & Malting Co. v. Dominion Bank, [1937] 3 All E.R. 555 (P.C.) ...... 64

Canadian Dredge & Dock Co. v. The Queen [1985] 1 S.C.R. 662) ...... 64

DOCTRINE

Peter Wells, "Monetary Relief – Profits" in Ronald E. Dimock, ed., Intellectual Property Disputes, Vol. 2, Carswell 2004 ...... 29

David Vaver, Copyright Law, Irwin Law Inc., 2000 ...... 30 SCHEDULE II ADDITIONAL PROCEEDING 27

Affidavit of Claude Robinson dated February 13, 2001 28

Affidavit of Claude Robinson dated February 13, 2001 29

Affidavit of Claude Robinson dated February 13, 2001 30

Exhibit I-1 Articles de journaux du 20 décembre 2000 31

Exhibit I-1 Articles de journaux du 20 décembre 2000 (cont’d) 32

Exhibit I-1 Articles de journaux du 20 décembre 2000 (cont’d) 33

Exhibit I-1 Articles de journaux du 20 décembre 2000 (cont’d) 34

Exhibit I-1 Articles de journaux du 20 décembre 2000 (cont’d) 35

Exhibit I-1 Articles de journaux du 20 décembre 2000 (cont’d) 36

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 37

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 38

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 39

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 40

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 41

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 42

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 43

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 44

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 45

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 46

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 47

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 48

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 49

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 50

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 51

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 52

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 53

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 54

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 55

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 56

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 57

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 58

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 59

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 60

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 61

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 62

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 63

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 64

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 65

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 66

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 67

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 68

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 69

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 70

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 71

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 72

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 73

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 74

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 75

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 76

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 77

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 78

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 79

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 80

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 81

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 82

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 83

Exhibit I-2 Action de Cinar contre les défendeurs requérants en date du 30 janvier 2001 (cont’d) 84

Exhibit I-3 Articles de journaux du 7 février 2001 85

Exhibit I-3 Articles de journaux du 7 février 2001 (cont’d) 86

Exhibit I-3 Articles de journaux du 7 février 2001 (cont’d) 87

Exhibit I-3 Articles de journaux du 7 février 2001 (cont’d) 88

Exhibit I-3 Articles de journaux du 7 février 2001 (cont’d) 89

Exhibit I-3 Articles de journaux du 7 février 2001 (cont’d) 90

Exhibit I-3 Articles de journaux du 7 février 2001 (cont’d) 91

Exhibit I-3 Articles de journaux du 7 février 2001 (cont’d) 92

Exhibit I-3 Articles de journaux du 7 février 2001 (cont’d) 93

Exhibit I-3 Articles de journaux du 7 février 2001 (cont’d) 94

Exhibit I-3 Articles de journaux du 7 février 2001 (cont’d) 95

Attorneys’ Certificate

ATTORNEYS’ CERTIFICATE

We, undersigned, DAVIES WARD PHILLIPS & VINEBERG LLP, do hereby certify that the above Appellants' Factum do comply with the requirements of the Rules of Procedure of the Court of Appeal in civil matters and with the amended minutes of the pre-trial conference of October 20, 2009.

Length of time requested for the oral presentation of the arguments: 3h00.

MONTRÉAL, January 21, 2010

DAVIES WARD PHILLIPS & VINEBERG LLP (Me William Brock, Ad. E.) (Me Cara Cameron) (Me Christine Aubé-Gagnon) Attorneys for Appellants Les Films Cinar Inc. and Cinar Corporation