Drolet v. Stiftung Gralsbotschaft and Foundation of the Grail Movement

Drolet v. Stiftung Gralsbotschaft and Foundation of the Grail Movement
Court (s) Database
Federal Court Decisions
Date
2009-01-06
Neutral citation
2009 FC 17
File numbers
T-1670-04
Notes
Reported Decision
Decision Content
Date: 20090106
Docket: T-1670-04
Citation: 2009 FC 17
OTTAWA, ONTARIO, January 6, 2009
Present: The Honourable Mr. Justice de Montigny
BETWEEN:
YVON DROLET
Plaintiff/Defendant to counterclaim
and
STIFTUNG GRALSBOTSCHAFT AND THE FOUNDATION OF THE GRAIL MOVEMENT - CANADA
Defendants/Plaintiffs by counterclaim
REASONS FOR JUDGMENT AND JUDGMENT
[1] This case involves complex and unusual intellectual property issues. But possibly even more importantly to the parties and to those who hold the beliefs underlying this dispute, these issues have major repercussions on what they most profoundly believe and what is therefore at the very core of their lives. The sincerity of the many witnesses who testified in Court leaves no doubt as to the intensity of their convictions.
[2] That said, this Court must not intervene in a sphere that is not under its jurisdiction. It is not up to a civil court to rule on metaphysical and spiritual issues. Even if the legal issues that must be decided are sometimes inextricably linked with issues of another nature, we must try to separate them, as far as possible, and deal with only those aspects that have a legal dimension. It is therefore with this caution in mind that I will now deal with the dispute between the parties.
FACTS
[3] The plaintiff, Yvon Drolet, is a retired manager and teacher. He read the Grail Message for the first time in 1976.
[4] To properly understand the ensuing events, it is important to digress somewhat and say a few words about this work and its author. The Grail Message was written by Oskar Ernst Bernhardt, born in Germany in 1875. From 1923 to 1937, under the pen name Abd-ru-shin, he published numerous lectures that were the fruit of his own spiritual thinking in the “Gralsblätter” [translation] (“Grail Pages”) and in the periodicals “Der Ruf” [translation](“The Call”) and “Die Stimme” [translation] (“The Voice”).
[5] Considered by followers to be a work of even greater importance than the Bible, the Grail Message claims to answer the existential questions with which all religions are concerned and places considerable importance on the teachings of Christ. In fact, the author considers himself a messenger from God, following Moses and Christ. Adherence to the principles of the Message can be formalized in an official ceremony called “Sealing.”
[6] In 1926, Oskar Ernst Bernhardt published a first book, in German, entitled “Im Lichte der Wahrheit” [translation] (“In the Light of Truth”). In 1931, under the same title, he published the Grail Message in one volume, including 91 of the author’s essays, God’s ten commandments, and, as an appendix, an essay entitled [translation] “Life.”
[7] In 1934, Oskar Ernst Bernhard published a collection of 61 essays, also in German, entitled [translation] “Echo I to the Grail Message”.
[8] From 1934 to 1936, Oskar Ernst Bernhard published 38 other separate lectures under the imprint of “Der Ruf”. Then, in 1937, he published his last ten lectures in “Die Stimme”. He died on December 6, 1941.
[9] In 1949, a book entitled “Ermahnungen” [translation] (“Exhortations”) was published posthumously. It included 22 lectures given by Oskar Ernst Bernhardt in the years 1934-1937. Twenty of those lectures had already appeared between 1934 and 1936 in “Echo I to the Grail Message” and the periodical “Der Ruf”, and two were previously unpublished.
[10] I will return to these different publications, which are at the heart of this dispute, when I analyze the actual legal issues involved. First, however, it is important to describe the activities of Mr. Drolet that led to the main action and counterclaim, and to say a few words about the two organizations that are also parties to this dispute .
(a) Mr. Drolet’s activities and the causes of this dispute
[11] As the leader of the Grail Circle in the Québec City area, Mr. Drolet organized various activities for spreading the Grail Message. Mr. Drolet stated that from 1982 to 1995, he gave more than 200 speeches on a voluntary basis in several regions of Quebec.
[12] In 1997, Mr. Drolet withdrew from the Foundation of the Grail Movement because he was uncomfortable with the way the Foundation was doing things. Nevertheless, he continued to give speeches on a personal basis until 1999, without assistance from any organization. It seems that during those years there was a rift within the Grail Movement in Germany and this rift spread to Canada and various other countries. Although the rift may have had significant consequences for members, it is not relevant for the purposes of this case because the Movement is not one of the parties of record.
[13] In 2000, the plaintiff learned of the existence of what he believed was the original work of the author of the Grail Message, Oskar Ernst Bernhardt, in its 1931 edition, as translated into French by Jean-François Roudaut. It is important to note that this translation had existed only in the form of photocopies.
[14] Mr. Drolet subsequently learned that a disciple of Oskar Ernst Bernhardt, Lucien Siffrid, had translated part of Bernhardt’s work into French during the author’s lifetime. Based on the translations by Mr. Roudaut and Mr. Siffrid of the original German work, as well as the French translation by Mr. Kaufmann distributed by the Foundation, Mr. Drolet undertook research to try to reconstitute what he believed to be the original work of Oskar Ernst Bernhardt.
[15] As a result of this research, the plaintiff concluded that the version published around 1949/1950 in German and considered by the Foundation to be the definitive version of the Grail Message was different from the original edition and from the writings published during Oskar Ernst Bernhardt’s lifetime in several respects: 14 essays or lectures were withdrawn, a significant number of passages were withdrawn and the order in which the essays appeared was reversed.
[16] After noting these numerous discrepancies and after checking that the copyright to the original work had lapsed in 1991 (that is to say 50 years following the author’s death as specified in section 6 of the Copyright Act, R.S.C. 1985, c. C-42), in May 2001 the plaintiff published one hundred copies in three volumes of what he considered to be the French version of the Grail Message as published during the author’s lifetime, at least as far as the first two volumes were concerned. Mr. Drolet’s books bore the following titles: Dansla lumière de la vérité, édition de 1931 [“In the Light of Truth”, 1931 edition]; Résonances au message du Graal, tome 1 [“Echoes to the Grail Message”, volume 1]; and Résonances au message du Graal, tome 2 [“Echoes to the Grail Message”, volume 2].
[17] Because the first edition sold out quite quickly, Mr. Drolet let it be known in early 2002 that he would be publishing a second edition to meet the demand of other persons wanting to read his work.
[18] On March 14, 2002, the Foundation of the Grail Movement - Canada sent Mr. Drolet a formal demand that he immediately cease disseminating , distributing or communicating in any form whatsoever any book, work or publication containing trade-marks registered in 1999 by the Stiftung Gralsbotschaft. I will deal with the registration of these trade-marks later. For now, suffice it to say that the registered trade-marks concern the name “Abd-Ru-Shin”, the title “Dans la lumière de la vérité/In the Light of Truth/Im Lichte Der Warheit”, and the logo including the letter A in a circle formed by a snake swallowing its tail.
[19] Following an exchange of letters between counsel for both parties, and faced with the impossibility of reaching an agreement, on September 14, 2004, the plaintiff instituted an action under section 57 of the Trade-marks Act, R.S.C. 1985, c. T-13, to have the registrations of the defendants/plaintiffs by counterclaim struck from the Trade-Marks Register.
[20] In a counterclaim, the defendants alleged that their trade-marks were valid and consequently that the plaintiff had infringed paragraphs 7(b) and (c) of the Trade-marks Act. The defendants also asked the Court to issue a permanent injunction ordering the plaintiff to cease using the defendants’ trade-marks as well as offering for sale, selling, manufacturing, distributing, writing or announcing any literary work, publication, public presentation of the work or lecture in connection with the trade-marks of the defendants. Lastly, the defendants asked the Court to order the plaintiff, at the defendants’ election, either to pay damages to them or to report the profits resulting from his illegal activities.
[21] On October 21, 2007, the defendants/plaintiffs by counterclaim brought a motion under rules 75 et seq. and 210 of the Federal Courts Rules to amend their defence to include infringement of copyright as a new cause of action against the plaintiff. The defendants basically alleged that Mr. Drolet’s work was a substantial copy of the translation of the original work done by and for the defendant Stiftung Gralsbotschaft and for which copyright subsisted.
[22] By order dated December 5, 2007, Prothonotary Morneau dismissed the motion because it was brought too late. However, my colleague Mr. Justice Yvon Pinard set that decision aside on December 20, 2007. While stating that he agreed with the prothonotary that the defendants/ plaintiffs by counterclaim were negligent in acting so late, he was of the opinion that the interests of justice would be better served by holding a single trial in which the same judge could consider both facets of the intellectual property issue raised in this dispute. Following that judgment, the defendants amended their defence and counterclaim to request that the Court declare that the publication, marketing, offering for sale and selling of the Grail Message by the plaintiff/ defendant to counterclaim is an infringement of copyright contrary to section 27 of the Copyright Act. The defendants also asked for a permanent injunction to be issued ordering the plaintiff not to publish, market, offer for sale, import and possess for the purpose of publishing, marketing, offering for sale or selling, any publication containing excerpts of the translations done by Paul Kaufmann for the Stiftung until November 20, 2044.
(b) Who are the defendants?
[23] The Stiftung Gralsbotschaft is a recognized public service corporation (a charity and not-for-profit corporation) founded at the very beginning of the fifties by Maria Bernhardt, the widow of Oskar Ernst Bernhardt. This foundation was registered by the Department of Religion and Public Education of the province of Baden-Württemberg on April 2, 1951.
[24] The articles of incorporation of the Stiftung specify that its mission is to protect, promote and disseminate (including through translations) the work of Oskar Ernst Bernhardt and other works based on it. The Stiftung is thus basically a publishing house and must not be confused with the International Grail Movement, the mission of which is essentially spiritual.
[25] The Stiftung distributes its books worldwide in 17 languages, including French and English. The royalties it collects from these sales represents a significant portion of its funding. During his testimony, the managing director of the Stiftung, Michael Oort, mentioned that more than 1,300,000 copies of the Grail Message had been sold since 1931.
[26] The Stiftung distributes these products outside Germany by working closely with national organizations such as the Foundation of the Grail Movement - Canada and supports these organizations financially and/or materially when necessary.
[27] On April 27, 1998, the Stiftung filed applications with the Canadian Intellectual Property Office for the registration of the following trade-marks:
- ABD-RU-SHIN
- A & SNAKE DESIGN
- DANS LA LUMIÈRE DE LA VÉRITÉ
- IN THE LIGHT OF TRUTH
- IM LICHTE DER WAHRHEIT
[28] Since no opposition was made to these applications, they were registered in 1999 under the following respective numbers:
- LMC 519 470
-LMC 519 469
- LMC 520 520
- LMC 519 477
- LMC 519 476
[29] Some minor details aside, these registrations concerned the following wares: Literary works and all publications, namely: leaflets, pamphlets and posters in connection with the distribution and/or the promotion of these works. The services concerned are public presentations of the works and lectures.
[30] On January 16, 2008, before the deadline set by order of the Court for filing documents concerning the authorized amendment to add a counterclaim for infringement of copyright, the Canadian Intellectual Property Office issued copyright registration certificate 1 055 266 to the Stiftung for the French translations of the Grail Message by Paul Kaufmann.
[31] The Foundation of the Grail Movement - Canada is a not-for-profit corporation incorporated under Part II of the Canada Corporations Act, and its letters patent mirror the articles of incorporation of the Stiftung. The Foundation is a registered charitable organization authorized to issue receipts for tax purposes.
[32] The Foundation is the Stiftung’s exclusive distributor in Canada. It distributes the Stiftung’s various books to bookstores, libraries and other stores where the books can be sold. The books are also sold on the Foundation’s website. Lastly, the Foundation organizes lectures on the work of Oskar Ernst Bernhardt and publicizes those lectures in the media.
ISSUES
[33] As a result of pre-trial conferences held on June 27 and October 11, 2006, the prothonotary noted that the parties did not agree on all the issues in this dispute. As he mentioned in his order dated November 3, 2006, the plaintiff submitted several issues in the form of arguments and which in any event seem to me to be included in the more general issues on which the parties agreed. I note also that in his written submissions, the plaintiff dropped several issues he had raised and to which the defendants had objected. Based on the testimony at the hearing and the written and oral submissions of counsel, I would frame the issues to be decided as follows:
- Trade-marks:
(a) Are the registered trade-marks distinctive from the wares and services sold by the defendants/plaintiffs to counterclaim within the meaning of section 2 of the Trade-marks Act?
(b) Are the registered trade-marks descriptive of the wares and services sold by the defendants/plaintiffs to counterclaim within the meaning of paragraph 12(1)(b) of the Trade-marks Act?
(c) Are the registered trade-marks, in connection with the wares and services sold, deceptively misdescriptive of the work of Oskar Ernst Bernhardt to the extent that the work published by Les Éditions françaises du Graal is not the complete version of the work of Oskar Ernst Bernhardt, within the meaning of paragraph 12(1)(b) of the Trade-marks Act?
(d) Should the registered trade-marks be struck because they consist of the name, the title in a language and the symbol of the work of Abd-ru-shin in connection with which they are used, pursuant to paragraph 12(1)(c) of the Trade-marks Act?
(e) Does the use by the defendants of the name, title and logo as trade-marks in connection with the work of Oskar Ernst Bernhardt infringe the plaintiff’s right to freedom of belief and expression, contrary to section 2 of the Canadian Charter of Rights and Freedoms, section 3 of the Quebec Charter of Human Rights and Freedoms and articles 18 and 19 of the International Covenant on Civil and Political Rights?
(f) If the Court finds that the defendants’ trade-marks are valid, is Mr. Drolet’s publication of his work an infringement of the defendants’ rights under sections 19 and 20 of the Trade-marks Act?
(g) If the Court finds that the defendants’ trade-marks are valid, is Mr. Drolet’s publication of his work unfair competition within the meaning of paragraphs 7(b) and (c) of the Trade-marks Act?
(h) If either of the two preceding questions is answered in the affirmative, what damages or profits are the defendants/plaintiffs by counterclaim entitled to claim?
- Copyright
(i) Was the translation done by Paul Kaufmann an original work within the meaning of subsection 5(1) of the Copyright Act?
(j) Is the defendant/plaintiff by counterclaim the Stiftung the owner of the copyright of the translation by Paul Kaufmann of the work of Oskar Ernst Bernhardt?
(k) If both preceding questions are answered in the affirmative, is the work prepared by Mr. Drolet a reproduction of the translation done by Paul Kaufmann?
(l) Do the allegations of the defendants/plaintiffs by counterclaim come up against the limitation period under section 41 of the Copyright Act?
(m) If Mr. Drolet did infringe the copyright of the defendants/plaintiffs by counterclaim, what is the appropriate remedy? Can Mr. Drolet rely on subsection 39(1) of the Copyright Act and claim that he was not aware of the Stiftung’s copyright?
[34] Before examining the issues mentioned above, I should note that no evidence was adduced having regard to damages and to the profits that Mr. Drolet may have made from the sale of his work. It was agreed at the hearing that this issue would be dealt with later, if necessary, depending on the answers to the substantive issues.
[35] Likewise, the motion brought by the defendants/ plaintiffs by counterclaim to be dispensed from filing certain documents was not decided. The requested documents were mentioned in a subpoena sent on March 17, 2008 to Serge Thivierge, president of the Foundation of the Grail Movement - Canada. The documents included financial statements, assets, statements of revenues and expenditures and evaluation and purchase contracts for the buildings of the Foundation and the Stiftung. Since the purpose of that information was merely to establish the defendants’ ability to pay in the event that exemplary damages were awarded to Mr. Drolet, I stated at the hearing that this motion would be taken under advisement and a ruling would be made only if it became appropriate in view of my findings on the merits of this case.
EVIDENCE
[36] Both parties called several witnesses in support of their respective submissions. Mr. Drolet split his evidence, first calling his witnesses in support of his trade-mark action and then in defence concerning the copyright counterclaim. The defendants/plaintiffs by counterclaim chose instead to present their evidence together in a single block. Given how closely the trade-mark evidence and the copyright evidence are related, I will summarize the testimony not necessarily in chronological order but overall for each of the two parties.
- Evidence adduced by Mr. Drolet
[37] Mr. Drolet first called three followers of the Grail Message who told the Court how much this work was at the heart of their lives and how important the opportunity to read the “original” version published by Mr. Drolet was to them. They also explained at length the content of the Message, its basic principles and foundations, and how they had come into contact with the work distributed by the Foundation and subsequently with Mr. Drolet’s version. Although I do not for a moment doubt their great sincerity, their testimony is of little assistance in resolving the legal issues to be decided in this case.
(i) Raymond Lefebvre
[38] The first witness, Raymond Lefebvre, owns a business and works in marketing. He was a member of the Circle of the Grail Foundation for the Québec City area with Mr. Drolet until the latter withdrew from it. He stated that when he read the version of the Message published by Mr. Drolet, he had the impression of reading the “real” message because it was more logical in the way it unfolded. He stressed the necessity of making the version published by Mr. Drolet available, saying that he was convinced it was the “right” one and that it conveyed the original Message.
[39] Mr. Lefebvre is one of the signatories (numbering one hundred or so) of a statement in support of Mr. Drolet. In this statement, the signatories demand that the defendants’ trade-marks be struck from the register and claim the right to have access to the original and complete Message of Oskar Ernst Bernhardt, which the Foundation would deny them.
[40] On cross-examination, Mr. Lefebvre confirmed that the books distributed by the Foundation and the Stiftung were available at lectures sponsored by the Foundation. He also identified the logo and copyright notice in each of the four volumes [translation] (In the Light of Truth, volumes 1, 2, and 3, and Exhortations) published by the Stiftung.
(ii) Alexis Langlois
[41] The second witness, Alexis Langlois, is a student. Mr. Langlois was also involved in the Foundation and gave lectures at the end of the 1990s. During his testimony he described the internal dissension that shook the organization in Germany, based on letters that he, like all members of the Foundation, received at the time. As already mentioned, the conflict in question has no bearing on this case.
[42] Although Mr. Langlois was raised by a mother who was a believer, he had an inquiring mind and wanted answers to his questions. He said that he had done extensive research on the life and work of Oskar Ernst Bernhardt, and that the version distributed by the Foundation left him unsatisfied, did not answer all of his questions, was not consistent, and that he had had doubts about the order in which the essays were presented in that version even before reading Mr. Roudaut’s translation based on the 1931 edition. He added that after reading that edition in the original German, he can assert that the work is not the same as the one distributed by the Foundation. Not only does the order of the essays differ, but entire pages were withdrawn. He also noted that several lectures appearing in the book entitled [translation] Exhortations were originally published in [translation] Echoes I and therefore accessible to everyone and not only to members having received the “Sealing.”
[43] Mr. Langlois also added that he was never able to see the manuscript of the version published by the Stiftung and he claimed that the author had never given any indication that he would alter his work. Moreover, the witness claimed that the author identified himself as the Son of Man and Emmanuel in the original work, whereas these references have disappeared completely in the version published by the Stiftung.
[44] Mr. Langlois also gave a long explanation that tended to show that Oskar Ernst Bernhardt could not have revised his message because he had said, in a written statement made while he was under house arrest and Gestapo control in October 1939, that he had not made any changes to his Message (exhibit P-6, page 11). Because they were repeated and commented on by numerous witnesses, it is worth reproducing the relevant paragraphs of that statement:
[translation]
Fortunately, however, my own case is different because everything I said is printed, therefore my complete Works, which are discussed in general terms, and because of which human beings have found {their Way} to me and also {as a result} made of themselves all that they have, and therefore also granted the loans that served the ideal Goals {resulting} from the earthly requirement of this spiritual Activity.
Now, of these Words that are mine, not the slightest {word} has been changed. They are, even today, to be read exactly as in the beginning and can stand as the proof and basis of my Answer.
As they presently are, so were they from the beginning. Therefore, should the personal conviction of any human being be shifted or altered because of other influences or intentions, I could not be criticized for having any intent to mislead!
As far as I am concerned, nothing else happened or was changed, but on the contrary, everything remained the same, word for word. And these Words are my unchanged and complete Belief of which I never wanted to persuade another human being because I have nothing but Joy in the Work itself and care not {to know} who and how many human beings say that this is also their Belief.
[45] The defendants objected to the admissibility of this statement on the ground that nothing established that it had been given freely and willingly. Even though I am aware that this case does not involve the principles applicable to criminal law, it nevertheless seems prudent to me not to give this text too much probative weight without knowing in what circumstances it was written. But there is more.
[46] Several interpretations may be given to the excerpt reproduced above and it does not seem to me to establish beyond any doubt that the author did not make any changes to his text. It must be borne in mind that this excerpt is part of a larger essay in which the author answers his critics and stands by everything he has written. Therefore, this excerpt must not be interpreted literally and taken to mean that the original text was never altered, however slightly, especially since we are dealing with a translation of the original statement, with all the risks that entails.
[47] In any event, and even supposing that this statement clearly establishes that the author had not revised his work when he made the statement, it cannot be inferred that he made no changes to it in the following two years (until his death in December 1941).
[48] Lastly, the witness tried to cast doubt on the completeness of the Message as published by the Stiftung and distributed by the Foundation by pointing out that the passage from the Statement reproduced at paragraph 44 of these reasons was not quoted in its entirety in a work on the life of Oskar Ernst Bernhardt published by the Éditions françaises du Graal with the blessing of the Stiftung (“Et la lumière luit dans les ténèbres et les ténèbres ne l’ont pas comprise” [translation: “And the light shineth in darkness and the darkness comprehended it not”] by Herbert Vollmann, exhibit P-19). This argument strikes me as very tenuous and based on conjecture rather than solid evidence. Moreover, Mr. Langlois did not testify as an expert on the life and work of Oskar Ernst Bernhardt and did not establish that he had any literary or philosophical knowledge that would allow him to make a scientific judgment. At most he can claim that he conducted personal research. Therefore, his interpretation of the works of Oskar Ernst Bernhardt and other writings about the author can only be his own opinion.
[49] When cross-examined, Mr. Langlois confirmed that the version of the Grail Message distributed by the Foundation was available in general bookstores in Quebec and in some municipal libraries. He also admitted that the documents he had received and to which he referred in describing the conflict within the International Grail Movement did not come from the International Grail Foundation (the Stiftung) but actually from the International Grail Movement.
[50] In his testimony, Mr. Langlois relied on a letter sent to Irmingard Bernhardt on March 6, 1976 by a disciple of Oskar Ernst Bernhardt, Hellmuth Muller, in which the latter cast doubt on the fact that Oskar Ernst Bernhardt could have substantially revised his text during the last two years of his life (Joint List of Admissions, tab 16). On cross-examination, counsel for the defendants drew attention to a notarized statement dated May 15, 1956 by Irmingard Bernhardt (Joint List of Admissions, tab 15) in which she wrote:
[translation]
The correction method applied by Mr. Oskar Ernst Bernhardt was the following: on a copy of the Grail Message used for this purpose, he wrote his instructions with a pencil, he removed passages and he marked reference points where he wanted to make changes or additions. He noted each of those changes or additions on a separate sheet of paper. Then, because these pencilled notes could be easily erased or become illegible, I typed them onto strips of paper, I erased the pencilled corrections on the copy of the Grail Message used for correction purposes and I glued the typewritten strips onto that copy.
As for the pages of the Grail Message on which longer paragraphs had been crossed out, I covered them by sticking paper over the hatching or I re-typed the whole page, making the changes, and glued the new page into place.
Because the order of the lectures was also changed, a lecture would sometimes have to be moved and inserted in another place.
I made all the changes exactly according to the instructions of the author of the Grail Message. He checked each of these corrections.
This process explains why only a few pages of the original manuscript written by Mr. Oskar Ernst Bernhardt still exist.
[51] In another statement dated December 1, 1985 made at the request of the Foundation of the Grail Message in Germany (also enclosed at tab 15 of the Joint List of Admissions), she repeated that the changes made to the original work were by Oskar Ernst Bernhardt himself. She also stated that she had granted a licence to the Stiftung for all of Oskar Ernst Bernhardt’s works in the following terms:
[translation]
As owner of the copyright of the Grail Message, I granted to the Foundation of the Grail Message in Stuttgart (Stiftung Gralsbotschaft) a general and exclusive licence for the printing, translation into all living languages and distribution of the work, on the basis of the final edition.
Therefore, the versions of the Grail Message that it publishes are, both in their content (text) and in the division and order of the lectures, the “only authorized editions” of this work.
[52] Counsel for the defendants also had the witness admit that the Grail Message had been extensively revised between the first edition of 1926 and the edition of 1931 that he claimed was final and definitive. Not only was the order of the lectures changed, but the number increased from 43 to 91. However, the witness added that Oskar Ernst Bernhardt had himself announced these changes, which he did not do after 1931.
(iii) Yves Malépart
[53] The third witness, Yves Malépart, is retired from the Federal Public Service. He also read the Grail Message in the 1980s and he joined the Movement in the 1990s. He stated that he had learned from Mr. Drolet in 1999 that the work he had access to had been revised. He therefore acquired Mr. Roudaut’s translation and then that of Mr. Drolet in 2001. It was then that he realized that the order of the lectures in the 1931 edition was not the same as in the edition published by the Stiftung. In his opinion, the 1931 edition as translated by Mr. Drolet was much more logical and easy to read. He said that he did not know why the Stiftung did not publish the original version and voiced the opinion that perhaps it wanted to control the Message.
[54] He stressed the importance of making the original work of Oskar Ernst Bernhardt as published in 1931 available to everyone because it was more complete and more readable. He repeated that the 1931 edition contained a dozen more lectures than the edition distributed by the Stiftung, that the order of the lectures had been changed and that more than 300 passages were different. This is why, according to him, it was essential that Mr. Drolet be able to publish his own translation which was more faithful to the German edition of 1931.
[55] On cross-examination, Mr. Malépart said that he had bought the Grail Message published by the Stiftung in a general bookstore after having previously borrowed it from a municipal library. As for Mr. Roudaut’s translation, he had read a mimeographed copy of it. Lastly, he confirmed that Mr. Drolet’s version and the Stiftung edition were easier to read than Mr. Roudaut’s version.
- Jean-François Roudaut (expert witness)
[56] Jean-François Roudaut, a French citizen, testified as an expert on the life of Oskar Ernst Bernhardt. Holder of Bachelor’s and Master’s degrees in literature, he has conducted research on Oskar Ernst Bernhardt since 1976, when he himself embraced the Grail Message. He published several books on the work of Oskar Ernst Bernhardt, which he distributed to followers of the Message. Some of those books were translated into German but none of them was copyrighted. In addition to studying the author’s work, he also met a number of Oskar Ernst Bernhardt’s disciples who had known him personally. Lastly, he gave public lectures in some twenty French cities on the Grail Message and Oskar Ernst Bernhardt.
[57] In addition to writing about the work of Oskar Ernst Bernhardt, he also translated some of his unpublished writings. Having read the original version of the Message (1931 edition) in 1979 and being dissatisfied with the French translation done by one Lucien Sigfrid in 1933, he personally undertook the translation of the work of Oskar Ernst Bernhardt [translation] (In the Light of Truth, Echoes I and Echoes II) in 1991. He worked on the translation until 2001 and he continued to correct it until 2005. This translation (which is at exhibit P-32) was intended only for the followers of the Message and was therefore not copyrighted, publicized or distributed by a publisher.
[58] Counsel for the defendants objected to the Court’s recognition of Mr. Roudaut as an expert on the ground that he was merely giving his personal opinion based on certain texts. It was also argued that the issue of whether the original version had been revised and by whom was not relevant to the case. At the hearing I reserved my decision on this objection.
[59] Now that I have heard the testimony and cross-examination of Mr. Roudaut and read his report, I am of the opinion that the witness does have in-depth and extensive knowledge of the life and work of Oskar Ernst Bernhardt and that he can help the Court by shedding light at least on the context of this dispute. It is true that the expertise that Mr. Roudaut may have acquired on the philosophy of Oskar Ernst Bernhardt does not result from his academic training but from his in-depth study of the writings in their original German version. However, the fact that Mr. Roudaut is largely self-taught in this subject does not disqualify him as an expert. As the authors Sopinka, Lederman and Bryant wrote in a passage cited with approval by the Supreme Court in R. v. Marquard, [1993] 4 S.C.R. 223 (at page 243):
The admissibility of such [expert] evidence does not depend upon the means by which that skill was acquired. As long as the court is satisfied that the witness is sufficiently experienced in the subject‑matter at issue, the court will not be concerned with whether his or her skill was derived from specific studies or by practical training, although that may affect the weight to be given to the evidence.
The Law of Evidence in Canada (1992) at pages 536 to 537.
[60] On the other hand, the defendants are right to point out that Mr. Roudaut is not a perfectly neutral and objective witness, since he not only joined the Grail Movement but also published what he feels is a more faithful French version of the work of Oskar Ernst Bernhardt, on which in fact Mr. Drolet based his own work. Although this does not prevent the Court from recognizing Mr. Roudaut as an expert and from admitting his testimony, I nevertheless consider this a factor which I will have to take into consideration when the time comes to assess the probative value of his testimony.
[61] Mr. Roudaut delivered a learned analysis, admittedly sometimes difficult for the uninitiated to follow, of the work of Oskar Ernst Bernhardt. As I mentioned in my introductory comments, it is not up to this Court to rule on the true meaning and import of the writings of Oskar Ernst Bernhardt and even less to arbitrate the doctrinal quarrels that may divide the followers of the Message. Therefore, I will consider only those aspects of the testimony of Mr. Roudaut that may have a bearing on the legal issues before this Court.
[62] First, Mr. Roudaut claimed that the author had never wanted his work to be marketed or publicized. On the contrary, he wanted it to be transmitted orally and difficult to obtain and intended it only for those persons wishing to embark on a personal quest.
[63] He also mentioned that in all the works published by the author between 1923 and 1936, his pen name was spelled in the German manner (Abdruschin) whereas in subsequent editions a different spelling (Abd-ru-shin) was used without any explanation.
[64] Mr. Roudaut also discussed the genealogy of Oskar Ernst Bernhardt and of his wife Maria Freyer (this genealogy is found at exhibit P-39). Oskar Ernst Bernhardt had two children from his first marriage, Herbert (died 1918) and Edith (died 1970). His second wife also had three children from a first marriage, Irmingard, Alexander and Maria Elisabeth. Oskar and Maria never had any children together and Oskar never adopted Maria’s children.
[65] Because Oskar Ernst Bernhardt died intestate, his daughter Edith was his principal heir. Under German law at the time, she inherited three quarters of the estate and his widow Maria inherited one quarter (see exhibit P-29).
[66] On January 20, 1942, Edith and Maria agreed on a new division of the estate. Edith received a claim Oskar Ernst Bernhardt had against a third party while Maria became the owner of the [translation] “intellectual property rights, as well as the rights to the publishing company and all other patrimonial assets belonging to the estate” (exhibit P-4). The witness questioned the authenticity of this agreement, especially because the claim that Edith allegedly inherited would have been of little value. However, there is no evidence on this point. In any event, a letter sent to Ms. Nagel by the family’s attorney on January 14, 1942 mentioned that the copyright belonged to Maria because Oskar Ernst Bernhardt had made a gift of it to her while he was alive (exhibit P-35).
[67] Mr. Roudaut also referred to a first statement written by Oskar Ernst Bernhardt when he was detained by the Nazis on July 19, 1938 (his second statement is reproduced at paragraph 44 of these reasons). In this first statement, found at tab 11 of the Joint List of Admissions, Oskar Ernst Bernhardt apparently revoked all mandates that he had previously given. The statement reads as follows:
[translation]
I point out that all possible foreign organizations still in existence and which are based on the teachings of the Grail must confine any possible continuation of their activities strictly within the framework of their country’s laws so that I myself will no longer have anything to do in any way with those organizations and so that any such mandate given by me – whether commercial in nature or in connection with the organization – is to be considered, as far as I am concerned, to have expired. No one is authorized any longer to use any power of attorney whatsoever given by me:
1. All commercial and private mandates given by me are expired. Only the power of attorney granted to the lawyer Doctor Karl Polaczek remains in force and he is authorized to make arrangements as instructed by me.
2. I demand that my former supporters cease any community, collective work and activity that would lead to the conclusion that the Movement directed by me is continued.
3. In particular, it is my wish that all former members of the “Gralssiedlung” [“City of the Grail”] on the Vomperberg leave this Community or its environs as soon as possible.
4. It is also necessary to avoid giving even the impression that the Movement is continuing in any form whatsoever. Anyone acting counter to my wishes expressed here is acting against me and under his own responsibility.
[68] If Mr. Roudaut is to be believed, there is no reason to doubt the authenticity of this document, even if it is only a copy of the original that was destroyed at the end of th