Eros -Équipe de Recherche Opérationnelle en Santé Inc. v. Conseillers en Gestion et Informatique C.G.I. Inc.

Eros -Équipe de Recherche Opérationnelle en Santé Inc. v. Conseillers en Gestion et Informatique C.G.I. Inc.
Court (s) Database
Federal Court Decisions
Date
2004-02-03
Neutral citation
2004 FC 178
File numbers
T-687-88
Notes
Digest
Decision Content
Date : 20040203
Docket: T-687-88
Citation: 2004 FC 178
Ottawa, Ontario, the 3rd day of February 2004
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
EROS - ÉQUIPE DE RECHERCHE OPÉRATIONNELLE
EN SANTÉ INC.
Plaintiff
AND
CONSEILLERS EN GESTION ET INFORMATIQUE C.G.I. INC.
and
RÉGIE RÉGIONALE DE LA SANTÉ ET DES
SERVICES SOCIAUX DE QUÉBEC
and
RÉGIE RÉGIONALE DE LA SANTÉ ET DES
SERVICES SOCIAUX DE LA MONTÉRÉGIE
Defendants
REASONS FOR ORDER AND ORDER
[1] This is an action in which the plaintiff Eros - Équipe de recherche opérationnelle en santé inc. (Eros) is suing the defendants Conseillers en gestion et informatique CGI inc. (CGI) and the Régie régionale de la santé et des services sociaux de Québec (Régie de Québec) jointly and severally and the Régie régionale de la santé et des services sociaux de la Montérégie (Montérégie) for an infringement of its copyright under the Copyright Act, R.S.C. 1985, c. C-42 (the Act) with respect to the use of its literary work titled Classification (des bénéficiaires) par types (de programmes) en milieu de soins prolongés (CTMSP).
[2] The defendants Régie de Québec and Montérégie are both corporations created pursuant to the Quebec Act Respecting Health Services and Social Services, R.S.Q., c. S-4.2 (Health Act).
[3] Several of the points at issue in the instant case arose before the conseils régionaux de santé et des services sociaux became the régies régionales de la santé et des services sociaux. However, to simplify reading, I have decided to refer to these organizations as "régies" at all times.
THE PLAINTIFF EROS
[4] Eros is a company duly incorporated under Canadian legislation. Mr. Tilquin is its president. He was a professor at the University of Montréal for over thirty years. His research specialty there was analysing the cost of care: Mr. Tilquin wanted to market his research results and in 1980 created the company Science des systèmes Montréal 1980 (SSM-80). In 1984 he founded Eros _ Équipe de recherche opérationnelle en santé inc., which he merged with SSM-80.
[5] Eros is a business for the evaluation, design, realization and implementation of management systems in the health field.
BACKGROUND
[6] The following background, prepared from facts admitted by the parties, helps in understanding the case.
A. Assessment of beneficiaries in the Quebec homecare and long-term care network
[7] Up to the 1980s, the Quebec homecare and long-term care network consisted of several independent establishments. There was no regional coordination of admission procedures, which resulted in several management problems and created injustices in the system of access to the institutions. Persons wishing to be admitted to the network had to make a direct application to the institution. If the institution where the person requiring care had made an application for admission rejected that person, the latter would have no means of finding a place in the network. Waiting lists for institutions therefore became uncontrollable and contained false information, with beneficiaries often making applications for admission to several places. Additionally, the result of the existence of such a network of independent institutions was to prevent the Ministère des Affaires sociales (MAS) (now the Ministère de la Santé et des Services sociaux) from knowing what the population of its homecare centres was.
[8] In order to deal with this situation the Government of Quebec, by its Decree 1320-84 of June 6, 1984, imposed on regional régies the responsibility of preparing and coordinating a regional system for admitting and transferring beneficiaries to institutions in the health and social services network in their region. The councils and the institutions were subjected to several new requirements, including those set out in sections 32 and 33 of the Organization and Management of Institutions Regulation, R.R.Q. 1981, c. S-5, r. 3.01:
32. Each regional council shall prepare a system for admitting beneficiaries to and transferring beneficiaries in institutions providing long-term care or homecare services, coordinated in cooperation with the institutions in the region.
32. Le conseil régional élabore et coordonne avec la collaboration des établissements de la région un système d'admission et de transfert des bénéficiaires dans les établissements offrant des soins de longue durée ou des services d'hébergement.
The system shall be prepared after consulting the institutions and practitioners involved in assessing applications for admission and directing beneficiaries towards the resource best suited to their needs, with a view to their admission.
Un tel système est élaboré après consultation des établissements et des intervenants impliqués dans l'évaluation des demandes d'admission et l'orientation des bénéficiaires vers la ressource la mieux adaptée à leurs besoins, en vue de leur admission.
Such system must take into account the whole of the resources of the territory served, including foster families and homecare resources and permits issued to institutions. It must be designated to promote services that complement those provided by other institutions for the users in question.
Le système doit tenir compte de l'ensemble des ressources du territoire, incluant les familles d'accueil et les services de maintien à domicile, ainsi que des permis des établissements. Il doit être de nature à favoriser une intervention complémentaire à celle des autres établissements auprès de la clientèle visée.
The admission system shall in particular provide for the participation of physicians, social workers and nurses.
Le système d'admission doit notamment prévoir la participation de médecins, d'infirmières ou infirmiers et de praticiens en service social.
The admissions system shall provide procedures for assessing the application and for setting up regional or subregional admission committees.
Le système d'admission doit prévoir les modalités de l'évaluation de la demande et la formation d'un comité régional ou de comités sous-régionaux d'admission.
The admissions committee shall fix the order of priority of admissions for the institutions covered by this section. The regional council shall maintain a card-index of applications for admission received by the admissions committees.
Le comité d'admission établit l'ordre de priorité des admissions pour les établissements visés par le présent article. Le conseil régional doit constituer un fichier des demandes d'admission reçues par les comités d'admission.
33. A beneficiary shall be admitted to an institution providing long-term care or homecare services under the following procedures:
33. Un bénéficiaire est admis dans un établissement offrant des soins de longue durée ou des services d'hébergement selon les formalités suivantes :(1) an application for admission shall be made in writing to the local community service centre of the territory in which the beneficiary resides, or to the social service centre of the region, if there is no local community service centre;
1) une demande d'admission est faite par écrit au centre local de services communautaires du territoire où le bénéficiaire réside, ou au centre de services sociaux de la région, s'il n'y a pas de centre local de services communautaires;
(2) a medical assessment and an assessment of the beneficiary's autonomy, supplying the information required by the regional council, must certify the need for admission;
2) une évaluation médicale et une évaluation de l'autonomie du bénéficiaire donnant les informations requises par le conseil régional, atteste de la nécessité de l'admission;
(3) the application for admission shall be accepted by the regional or subregional admissions committee formed by the regional council, taking into account preferences expressed by the beneficiary;
3) la demande d'admission est acceptée par le comité régional ou sous-régional d'admission formé par le conseil régional, en tenant compte des préférences exprimées par le bénéficiaire;
(4) the institution designated by an admissions committee shall admit the beneficiary as soon as a bed is available.
4) l'établissement désigné par un comité d'admission admet le bénéficiaire dès qu'un lit est disponible.
Where an application applies to a beneficiary already sheltered in an institution, it shall be sent directly to the admissions committee with the assessment of the beneficiary, and a copy shall be sent to the local community services centre of the territory where the beneficiary resides or to the social service centre of the region, if there is no local community service centre.
Lorsqu'une demande vise un bénéficiaire déjà hébergé dans un établissement, elle est transmise directement au comité d'admission avec l'évaluation du bénéficiaire, et une copie en est transmise au centre local de services communautaires du territoire où le bénéficiaire réside ou au centre des services sociaux de la région, s'il n'y a pas de centre local de services communautaires.
[9] In 1984-1985, the MAS received $13,000,000, annualized at $27,000,000 the following year, for homecare centres and hospital centres for long-term care. These amounts were to be used to increase the satisfaction rate in nursing care in ergotherapy and in physiotherapy. No amount was provided for the purchase of data processing equipment or design of software.
[10] The MAS had to find a means of distributing the amounts received equitably. It decided to make province-wide assessments for the purpose of distributing the funds in accordance with regional needs. Several discussions were held to decide what tools should be used to make the assessments. The MAS chose the CTMSP.
Contract for assignment of interests
[11] On August 8, 1984, Eros concluded an agreement with the MAS for the assignment of certain of its interests in the literary work CTMSP. None of the three defendants in the case at bar took part in the negotiations which led to that contract. The clauses of the contract which are relevant here are set out below. The [TRANSLATION] "contracting party" in these extracts refers to the plaintiff Eros.
[TRANSLATION]
1.5 The Minister considers that the CTMSP 81 system is currently the most adequate tool for meeting his objectives, and to assist with its introduction and use in the social affairs network he agrees to accept it as the standard tool for assessing and directing beneficiaries.
. . . . .
3.1 The contracting party hereby grants to the Minister as of this date, finally but subject to the territorial restrictions and limitations mentioned in this agreement, an exclusive licence to exploit the original work known by the abbreviation "CTMSP 81".
3.2 Under this licence, the Minister will be exclusively entitled to do the following:
(a) all the rights and attributes pertaining to the literary exploitation of the work (printing, publication, reproduction, distribution, broadcasting, promotion and public execution of the work and its marketing);
. . . . .
(c) all the same rights and attributes regarding the transcription (adaptation) of the work CTMSP 81 in the following forms or support only: microfilm, video, television, sound tracks and any other sound or visual devices or combination thereof.
3.3 Any authorization granted to the Minister under this licence shall also apply to his employees, agents or mandataries (persons or organizations doing business with the Minister) solely for the purpose and the exercise of the attributes granted to the Minister.
. . . . .
4.6 Finally, the Minister expressly recognizes that this licence gives him no right to electronic exploitation of the work and that such right (including, but without being limited thereto, the right to use or reproduce all or part of CTMSP 81 on one or more supports, by any procedure whatever, for the purpose and aim of printing, publication, distribution, broadcasting and marketing of the work for electronic use) belongs exclusively to the contracting party. The Minister undertakes to perform no personal act which may interfere with the enjoyment of the rights retained by the contracting party.
In consideration whereof, the contracting party undertakes to inform the Minister promptly of any electronic adaptation it may make of the work or its derivatives. It further undertakes to give the Minister priority (right of first refusal) for any concession of interests relating to the exploitation of any electronic adaptation of the work or its derivatives.
[12] On October 24, 1984, the MAS distributed ministerial circular 1984-069 telling the health and social services régies and institutions of its new policies for the assessment and direction of beneficiaries. The régies were to ensure that all their institutions had the necessary resources to meet their customers' needs. To do this, it was not only important to assess the magnitude of beneficiaries' requirements, but also to be able to control such information.
[13] The circular informed its recipients that the CTMSP was the tool chosen by the MAS for the assessment and direction of beneficiaries. As a result of this assignment of interests, the paper form was made available to all the régies and institutions in the province free of charge. The circular further indicated the limits on the copyright obtained by the MAS to the CTMSP and informed recipients that the form could not be altered by users in any way.
The CTMSP
[14] The CTMSP was created by Claude Tilquin in 1976. It is a tool that makes it possible to manually assess the needs of elderly persons requiring care and to decide where they should be placed in the network. It consists of a group of forms and involves four stages.
[15] The first stage is a medical assessment of the state of the client's health. The relevant form is filled in by a physician. A nurse or social worker then completes the autonomy assessment form. This form draws up a picture of the client's autonomy, with reference to his or her ability to perform everyday activities, that is, essential activities and the activities of everyday life.
[16] The second stage involves assessing the services that will be required by the beneficiary who has made an application for admission to the network. There are two categories of service: potential services and actual services. Potential services are related to the client's general burden, that is, all the services the beneficiary will require apart from assistance he receives from persons around him. Actual services represent services the network will have to provide once the persons around the beneficiary have done their part.
[17] The form for determining nursing care and assistance services required is part of this assessment. It is at the heart of the CTMSP, as these services represent 90 per cent of the care burden.
[18] Once these forms have been filled in, a coordinator reads the assessments and ensures that everything has been properly completed. He or she then forwards the file to a multi-disciplinary team, which determines the services required. That team includes a physician, a nurse, a social worker or physiotherapist and an ergotherapist. The team must arrive at a consensus to ensure that the work plan adequately meets the beneficiary's needs. This information is then consolidated in the form for measuring resources required, which is the third stage of the CTMSP.
[19] This third stage involves calculating the total points for nursing care and services required of each other professional. This calculation can be made by the coordinator or one of the team professionals. The results of this calculation are presented in hours/care, that is, they indicate the care required by the beneficiary for each 24-hour segment.
[20] The fourth stage involves placing the beneficiary in the network of long-term care and services for the elderly. There is a complete range of programs, from programs offered to the beneficiary at home to programs offered in institutions for the most handicapped beneficiaries.
[21] In March 2002, the MAS informed the régies that the multi-client tool would henceforth be the only tool of assessment in the network. However, the CTMSP forms were and still are in use in Quebec.
Shortened CTMSP
[22] Eros created the shortened CTMSP to carry out ongoing assessment of beneficiaries already residing in a network homecare centre. The ongoing assessment is done after the initial assessment using the CTMSP. The ongoing assessment makes it possible to determine the beneficiary's progress or deterioration and to reassess his or her needs in accordance with the current state of health.
[23] The shortened CTMSP is essentially a shortened version of the CTMSP. It only includes the form for assessing nursing care and assistance required. It is completed by a nurse in the same way as the CTMSP. Then, a multi-disciplinary team reviews the form and determines the nursing care required by the beneficiary.
[24] At the time, it was also a useful tool for distributing budgetary allowances to the regions and managing the resources within institutions.
Creation of information system
[25] Ministerial circular 1984-051, which was distributed to general managers of health and social services institutions and regional régies on June 20, 1984, lists the new obligations imposed on them under Decree 1920-84. In particular it indicated that the régies should [TRANSLATION] "create a card index of admission applications received by committees and a card index of discharge of beneficiaries". The régies were thus responsible for collecting and preserving information on beneficiaries.
[26] During summer 1984, the MAS also decided that it was necessary to collect information on the beneficiaries in the network. The MAS decided to make [TRANSLATION] "a joint committee responsible for coordinating the introduction of a data gathering system to supply information systems relating to clients of the CHSLDs" (ministerial circular 1984-053, dated August 16, 1984, p. 2).
[27] In June 1980, the Régie de Québec began implementing a regional admission system, the [TRANSLATION] "Program for Evaluating and Coordinating Admissions" ("PECA"). In February 1981, all institutions in the Quebec region complied with the PECA. Under the PECA, all admission applications to reception centres, homecare centres and hospital centres for long-term care in the Québec region were assessed using a uniform tool: the CTMSP form.
[28] In fall 1983, pursuant to the PECA, the Régie de Québec conducted operation 8800, a general assessment of all clients accommodated in various institutions in the region. The Régie de Québec used the CTMSP.
SIBPA software
[29] The action at bar concerns damages caused to Eros by the creation, circulation and use of the SIBPA software containing CTMSP forms.
[30] The SIBPA software ([TRANSLATION] "information system for non-independent beneficiaries") is an information system created by the Régie de Québec to facilitate the control of admissions by PECA and other regional admission procedures. It was designed to comply with the requirements imposed by the MAS on régies under sections 32 and 33 of the Organization and Management of Institutions Regulation, supra. SIBPA was not a system intended for institutions.
[31] The purposes of SIBPA, set out by the Régie de Québec in a letter to general managers of institutions in the Québec region, were the following:
[TRANSLATION]
- support the regional and subregional procedure for assessing, directing and coordinating admissions in a program meeting the needs of non-independent persons;
- relating the needs of clients to resources available to the distributors of services and so allocating budgetary resources;
- providing longer-term planning for the management of resources and services for such clients, by identifying general trends in needs;
- assisting institutions with the production of reports of all kinds, while regularly providing them with a general review of the needs of their homecare or long-term care clients.
[32] The Régie de Québec was instructed by the MAS to design this software and received a grant of $200,000 from the latter for this purpose in January 1986. One of the conditions for the making of the grant was that once completed the software would be made available throughout the provincial health and social services network.
[33] Initially, the Régie de Québec asked CGI to conduct a preliminary study on the design of an information system on assessing sheltered beneficiaries.
[34] In due course, the Régie de Québec retained Partagec, a paragovernmental non-profit company, to create the software that became SIBPA.
[35] The Régie de Québec remained in control at all times. In the agreement between Partagec and the Régie de Québec, the latter chose to acquire the property rights to the software rather than only acquiring the rights to use the software.
[36] In late 1985 and early 1986, SIBPA was ready to be made available to the régies and was accordingly installed at the Régie de Québec. The other régies in the province were informed by a letter from the general manager of the Régie de Québec, dated May 13, 1986, that they could obtain SIBPA free of charge. The Régie de Québec received no profits relating to SIBPA.
[37] In order to acquire SIBPA, a régie only had to inform Claude Roy at Informas-IST (the successor of Partagec). He then sent a diskette with the software to the régie. The régie only had to retain the content of the diskette on the hard disk of its server.
[38] In order to make assessments with the SIBPA software, it was necessary to complete the CTMSP form. The information was then entered in the software by technicians. The software produced output containing the results of calculations made by the software for each institution and user. The results in the outputs were presented in the form of hours/care and the latter helped institutions with their internal management. This information also made it possible to calculate hours/care required by the average beneficiary for the institution as a whole. These results were helpful to the Régie de Québec when it had to allocate clientèle increase budgets.
PLAISIR system
[39] The case at bar also concerns damages relating to the Eros work PLAISIR ([TRANSLATION] "computerized planning of nursing care required"). These damages were allegedly caused by the use of the SIBPA software.
[40] The PLAISIR system, designed by Eros in the early 1980s, is a tool for assessing the needs of non-independent elderly persons already residing in a long-term care institution.
[41] PLAISIR consists only of one form, the FRAN ([TRANSLATION] "nursing actions summary form"), which must be completed by a nurse. Once completed, this form is sent to Eros where a nurse rereads it and ensures that the information is reliable and valid. This rereading is an integral part of the system. The form is then processed by Eros using software. The software determines the resources required by the beneficiary who is the subject of the assessment by seven-day periods and by work shifts.
[42] This system performs the same function as the shortened CTMSP. It is used to make an ongoing assessment of beneficiaries already accommodated in the network, not for the complete assessment of persons making an application for admission to a reception centre.
[43] However, PLAISIR is more detailed than CTMSP in the nomenclature describing nursing actions. The PLAISIR nomenclature is [TRANSLATION] "open", that is, in completing the FRAN form the nurse ticks a number of parameters which are in the list and reflect the beneficiary's needs. By ticking the parameters for the necessary actions, she creates new care actions. Unlike the CTMSP, in which the actions are already all described, FRAN thus makes possible a more flexible description of the beneficiary's needs. Once the form is complete, points are assigned to each action by the PLAISIR software at Eros. The software then calculates the results.
[44] Because PLAISIR subdivides its results by work shift, it makes possible a more accurate assessment of needs for manpower and assistance in the management of the latter. The shortened CTMSP measures workload by separating it between the nursing load and that of auxiliaries and employees, which PLAISIR does not do.
[45] The PLAISIR tool was used in Montérégie in 1983 and by the Régie de Québec from 1984 onwards. Montérégie had used PLAISIR in 1983-1984 and 1984-1985 to make assessments throughout its region. However, it cancelled the contract for the PLAISIR assessment from 1985 to 1986.
Involvement of CGI in case
[46] CGI is a company incorporated under Canadian law. CGI is the legal successor to Partagec, the Société Informas du Québec (SIQ) and IST-Informas Inc. (IST). CGI's involvement in this matter dates back to 1996, at which time it purchased Groupe IST Inc. The contract of sale provided for the purchase by CGI of Groupe IST Inc., which consisted only of the IST [TRANSLATION] "contracting out" division, not its [TRANSLATION] "health" division. CGI never purchased the division which had the SIBPA file and this software was not part of the assets purchased in May 1996. It is MédiSolution inc. which is the owner of the IST "health" division. At the same time, the contract of sale stipulated that CGI acquired Eros's action against IST. CGI therefore owns the rights and obligations of its predecessors, Partagec, SIQ and IST.
Plaintiff's arguments
[47] Eros alleged the Régie de Québec had infringed its copyrights by performing the following acts:
- authorizing the reproduction of significant portions of CTMSP forms when SIBPA was designed by CGI;
- authorizing the translation of the CTMSP into data processing language by CGI;
- reproducing the CTMSP work in the use of SIBPA;
- authorizing use of the infringing SIBPA software, and consequently reproduction of the CTMSP at the time of use;
- placing the infringing work in circulation so as to injure Eros, by offering the software to all the régies.
[48] Eros alleged that Montérégie had reproduced its CTMSP work in using the SIBPA.
[49] Eros alleged CGI had reproduced significant portions of its CTMSP work in designing SIBPA. By incorporating the CTMSP forms in the SIBPA software CGI reproduced them, but in data processing language.
II. ANALYSIS
1. Crown immunity
[50] The Régie de Québec alleged that it could not be held responsible for the damages caused by the design of SIBPA since it was acting as an agent of the Crown, and as such could rely on the benefit of the immunity of the Crown in Right of the province.
[51] In Commission des normes du travail v. Conseil régional des services de la santé et des services sociaux de la Montérégie, [1987] R.J.Q. 841 at 860 (C.A.) (Commission), the Quebec Court of Appeal clearly held that the CRSSs are agents of the Crown as a result of the significant degree of control exercised by the MAS over their activities.
[52] When the Régie de Québec acts in a specific mandate from the MAS, as in the case at bar, its status as agent is all the more obvious.
[53] It is a well-settled rule of administrative law that a Crown agent or employee enjoys Crown immunity (R. v. Eldorado Nuclear Limited, [1983] 2 S.C.R. 551- "Eldorado").
(A) Whether Copyright Act applicable to Crown in Right of province
[54] Section 17 of the federal Interpretation Act, R.S.C. 1985, c. I-21, provides that no enactment is binding on the Crown unless this expressly stated:
17. No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in
any manner, except as mentioned or referred to in the enactment.
17. Sauf indication contraire y figurant, nul texte ne lie Sa Majesté ni n'a d'effet sur ses droits et prérogatives.
[55] Since the Act does not state that it applies to the Crown, the Régie de Québec submitted that the MAS and its agents, including the régies, could rely on the Crown immunity.
[56] It is recognized at common law that the Crown in Right of Canada and the Crown in Right of the provinces enjoy a significant immunity. This immunity is covered in the interpretation statutes of the federal legislature and several of the provinces.
[57] Alberta Government Telephones v. C.R.T.C., [1989] 2 S.C.R. 225 (AGT), affirmed that the reference to Her Majesty in section 16 of the Interpretation Act, R.S.C. 1970, c. I-23 (now section 17), applies not only to the Crown in Right of Canada but to the Crown in Right of a province as well.
[58] In the case at bar, the Act does not state that it applies to the Crown. This silence accordingly makes it necessary to analyse the provisions of the Act to determine whether the Crown can still be made subject to the Act by implication.
[59] Eros alleged that section 12 of the Act is an indication that the Act is applicable to the Crown. I am not of this view. Section 12 expressly mentions that it is applicable without prejudice to any rights or privileges of the Crown:
12. Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year. [My emphasis].
12. Sous réserve de tous les droits ou privilèges de la Couronne, le droit d'auteur sur les oeuvres préparées ou publiées par l'entremise, sous la direction ou la surveillance de Sa Majesté ou d'un ministère du gouvernement, appartient, sauf stipulation conclue avec l'auteur, à Sa Majesté et, dans ce cas, il subsiste jusqu'à la fin de la cinquantième année suivant celle de la première publication de l'oeuvre. [Je souligne].
[60] In his text Fox's Canadian Law of Copyright and Industrial Designs, 3d ed., Toronto, Carswell, 2000 (Fox), at p. 355, John S. McKeown states that the Crown can exercise the rights conferred in section 12 of the Act without this eliminating its immunity.
Theory of waiver or [TRANSLATION]"complementarity of advantages and disadvantages"
[61] In Sparling v. Caisse de dépôt & du placement, [1988] 2 S.C.R. 1015 (Sparling), the Supreme Court of Canada held that the Crown could not benefit from rights conferred by legislation without being subject to the resulting burdens. Thus, even where there is no indication that legislation applies to the Crown, the latter may make itself subject to the Act through its own actions. The theory of waiver requires, however, that there be a quite close nexus between the benefit received by the Crown and the burden it is being made to assume.
[62] Eros stated that the MAS made itself subject to the provisions of the Act of its own volition through its negotiations with Eros of the contract for assignment of copyright. The MAS derived a benefit from this by obtaining an exclusive licence to the CTMSP. It argued that this constituted an implicit acceptance of the benefits of the provisions of the Act. The MAS therefore could not take advantage of the provisions creating and protecting the rights which were the subject of its licence without being covered by the system of responsibility for infringement of its contracting party's copyrights. If the rights resulting from the licence which the MAS obtained had been infringed, it would have wanted to sue the infringer: it therefore cannot avoid application of the provisions on which in the circumstances it would have relied. The Crown and its agents cannot take advantage of legislative provisions and then ignore the resulting burdens.
[63] In the case at bar, I consider that the MAS made use of the provisions of the Act. There is a close nexus between the benefit provided by an exclusive licence, namely the right to use a work to the exclusion of any other person, and the burden not to infringe the rights which the assigning party has chosen not to assign, here the right to electronic application of its work. The MAS and its agents are therefore bound by the provisions of the Act and cannot rely on Crown immunity.
(B) Whether actions of Québec ultra vires its mandate
[64] Additionally, I consider that even if the Régie de Québec could have relied on immunity, it exceeded the mandate conferred by the MAS when it infringed Eros's copyrights, and it consequently lost its immunity.
[65] In Eldorado, supra, at 566, the Supreme Court of Canada said the following;
When the agent steps outside the ambit of Crown purposes, however, it acts personally, and not on behalf of the state, and cannot claim to be immune as an agent of the Crown. This follows from the fact that s. 16 of the Interpretation Act works for the benefit of the state, not for the benefit of the agent personally.
[66] In AGT, supra, at 295, it stated that "this doctrine may be applied where one level of government seeks to invoke Crown immunity from a statute of the other".
[67] There is no evidence in the record that the MAS gave the Régie de Québec a mandate to infringe Eros's rights regarding electronic use of the CTMSP form. The evidence actually shows the contrary. In its ministerial circular 1984-069 the MAS informed the régies of the right assigned to the MAS by Eros. Additionally, nothing in the instructions the MAS gave to Québec required, authorized or approved computerization of the CTMSP. Also, no provision of the Act respecting health gives the régies power to contravene federal legislation in carrying out their mandates.
[68] I therefore conclude that the Régie de Québec exceeded the limits of its instructions when it decided to include the CTMSP form in the SIBPA software. As a consequence, it cannot rely on Crown immunity to protect itself from the consequences of its infringement of Eros's rights.
(C) Whether Régie de Québec became liable under C.C.L.C. civil liability
[69] Paragraph 1 of article 356 of the C.C.L.C. provides the following:
Art. 356. Secular corporations are further divided into political and civil; those that are political are governed by the public law, and only fall within the control of the civil law in their relations, in certain respects, to individual members of society.
Art. 356. Les corporations séculières se subdivisent encore en politiques et en civiles. Les politiques sont régies par le droit public, et ne tombent sous le contrôle du droit civil que dans leurs rapports, à certains égards, avec les autres membres de la société individuellement.
[70] Eros alleged that the design of SIBPA was not an act of policy but an act of execution, which could make the artificial entity liable in public law. By committing an act of execution, the [TRANSLATION] "political" artificial entity acts as a private person. It can therefore be subject to the rules of private law.
[71] In Fox, supra, at page 414, John S. McKeown warns against the application of private law concepts to infringement of copyright: "[b]ecause the rights in question are statutory in nature the terms of the [Copyright] Act speak for themselves and it is not helpful in interpreting those provisions to import tort concepts." This principle was recognized by the Supreme Court of Canada in Compo Co. Ltd. v. Blue Crest Music Inc., [1980] 1 S.C.R. 357, at 372-373, where it said:
Courts in this technical field of copyright have found it prudent to make their judicial answers congruent with the legal issues raised in the proceeding at hand leaving, so far as possible, analogies, examples and hypothetical questions to another day. I propose to follow this principle and therefore expressly refrain from deciding such questions as whether or not there may be in law two "makers" of a single record for the purpose of these sections of the Copyright Act. Mr. Hughes for the respondent in answer to a question from the Bench put it very well when he said that copyright law is neither tort law nor property law in classification, but is statutory law. It neither cuts across existing rights in property or conduct nor falls between rights and obligations heretofore existing in the common law. Copyright legislation simply creates rights and obligations upon the terms and in the circumstances set out in the statute. This creature of statute has been known to the law of England at least since the days of Queen Anne when the first copyright statute was passed. It does not assist the interpretive analysis to import tort concepts. The legislation speaks for itself and the actions of the appellant must be measured according to the terms of the statute. [Emphasis added.]
[72] It appears that the rules of tort liability have no place in the interpretation of copyright. In my view it is wrong to suggest, as the plaintiff did, that civil law can be the source of the defendant's fault in a case of copyright infringement.
[73] The Act in fact provides what acts can be an infringement of copyright and what remedies are available. The remedy in damages is mentioned in sections 34 and 35.
[74] I agree that in Club de golf Murray Bay v. La Commission des normes du travail, [1986] A.Q. No. 422 (QL), the Quebec Court of Appeal applied rules of liability in delict under article 1053 C.C.L.C. as a basis for its conclusion that the Commission des normes du travail had infringed the Labour Standards Act, R.S.Q. c. N-1.1. However, unlike the case at bar the Labour Standards Act provides no remedy for the plaintiff. The Court therefore relied on civil law in compensating the plaintiff for the damage caused by the fault of the Commission. The rules contained in that case are not applicable to the case at bar.
[75] In conclusion, I feel that although the Régie de Québec was an agent of the MAS in connection with the SIBPA project, it cannot rely on Crown immunity since the MAS, and therefore its agents, made itself subject to the Act when it concluded the contract for assignment of copyrights. Further, even if the Régie de Québec enjoyed immunity, it lost that immunity when it exceeded its instructions. The Régie de Québec will have to sustain the consequences of its infringing acts.
2. Knowledge by régies of existence of Eros copyrights
[76] The CTMSP forms were created by Charles Tilquin, and under his supervision. Mr. Tilquin and his assistants signed assignments to Eros of all their rights resulting from the creation of the CTMSP forms. The CTMSP forms are the subject of copyright registrations in the plaintiff's name.
[77] The parties admitted that the CTMSP forms are literary works protected by the Act.
[78] Mr. Tilquin testified that in spring 1984 he negotiated with the MAS the conditions for use of his CTMSP forms in the Quebec health network. On August 8, 1984, the assignment of interests was signed. It conferred the rights of literary exploitation of the CTMSP work on the MAS.
[79] Mr. Tilquin only wanted to assign a licence to exploit, not his rights to the CTMSP work, as if he assigned them he might lose his rights to his other works, PLAISIR and PRN. He also did not want to assign a licence for electronic use of his work, since in 1984 computerization was beginning in the networks and he saw this as an important potential for CTMSP.
[80] This intention is in fact clear from reading all the preliminary versions of the contract, which contain deletions regarding assignment of electronic exploitation. Clause 4.6 of the contract states that Eros retains its rights to electronic exploitation of the CTMSP.
[81] At the time of the negotiations the parties had contemplated a review of the CTMSP. Since the CTMSP was going to be used throughout the pro