



COURT OF APPEAL FOR ONTARIO

CITATION:  Miguna v. Walmart Canada Corp., 2016 ONCA 174

DATE: 20160301

DOCKET: C61022

van Rensburg, Pardu, and Miller JJ.A.

BETWEEN

Miguna Miguna

Plaintiff (Appellant)

and

Walmart Canada Corp.,
Walmart
    Stores, Inc
. and

Consortium Book Sales
    and Distribution LLC

Defendants (Respondents)

Miguna Miguna, in person

Antonio Turco and Sarah OGrady for the respondent Walmart
    Stores, Inc.

Dominique Hussey and Ilan Ishai for the respondent
    Consortium Book Sales and Distribution LLC

Heard: February 22, 2016

On appeal from the order of Justice Graeme Mew of the Superior
    Court of Justice, dated September 18, 2015 with reasons reported at 2015 ONSC
    5744.

ENDORSEMENT

[1]

Miguna Miguna is the author of a book entitled
Peeling Back the
    Mask: A Quest for Justice in Kenya
. It is an account of political
    corruption in Kenya, published in 2012 by Gilgamesh Africa Ltd. in the United
    Kingdom. Mr. Miguna has alleged that Gilgamesh Africa and other entities have
    published and sold unauthorized editions of the book, retaining the proceeds
    that are rightfully his. He alleges that thousands of unauthorized copies of the
    book have been printed and sold in North America, and he has sought redress
    through several actions in Ontario.

[2]

This is one of those actions. Mr. Miguna alleges that the respondent
    Consortium Book Sales and Distribution, LLC (Consortium) illegally reproduced
    and sold thousands of copies of the book, some of which he alleges were sourced
    by a third party distributor, Baker & Taylor Fulfilment, for sale through
    the website walmart.com in the United States. He alleges primary and secondary
    copyright infringement against Consortium, and secondary copyright infringement
    against the respondent Walmart Stores, Inc.

[3]

Walmart Stores, Inc. is a corporation operating Walmart retail stores in
    the United States. Its affiliate Walmart.com USA LLC (Walmart.com USA)
    manages web-based sales of products in the United States on the website located
    at walmart.com. Walmart.com USA is not a party to this action.

[4]

Consortium distributes books from independent publishers to wholesalers
    and retailers, including Walmart.com USA.

[5]

In 2014, Mr. Miguna became aware that the book was listed for sale on the
    website walmart.com, and that the website named Consortium as the publisher of
    the book. He concluded that Consortium had published a version of the book
    without his consent or knowledge, and that this unauthorized version was being
    sold by Walmart Stores, Inc. in violation of his copyright.

[6]

He brought this action, alleging that Consortium: (1) directly infringed
    his copyright by printing or reproducing copies of the book without his consent
    (primary infringement); and (2) indirectly infringed his copyright by
    distributing, selling, or exposing or offering for sale copies of the book,
    which it knew or ought to have known were printed, produced or reproduced
    without his consent (secondary infringement). As against Walmart Stores Inc.,
    Mr. Miguna pursued a claim of secondary infringement.

[7]

The respondents were successful on a motion for summary judgment and the
    action was dismissed.

[8]

The motion judge concluded that there was no evidence that either of the
    respondents had published the work, which is a prerequisite for proving primary
    infringement. He also concluded that Mr. Miguna had not made out any of the
    three necessary elements for secondary infringement. In particular, that Mr. Miguna
    had not established that infringing copies of the book had been published, that
    the respondents knew or ought reasonably to have known that they were dealing
    with infringing copies, or importantly, that either respondent had handled,
    distributed or offered for sale infringing copies of the book. The motion judge
    also concluded that there was no evidence that the respondents or anyone else
    ever failed to attribute authorship of the book to Mr. Miguna. Accordingly, the
    motion judge dismissed Mr. Migunas claim that his moral rights were infringed.

[9]

Mr. Miguna has appealed. Although he raises several grounds of appeal, the
    overarching issue is whether the motion judge made a palpable and overriding
    error in finding that there is an ample evidentiary record  [to] conclude
    that neither of the moving parties ever physically received or sold, in North
    America let alone in Canada, a copy of
Peeling Back the Mask
.

[10]

Mr.
    Miguna argued that the motion judge failed to apprehend key evidence
    establishing that the respondents in fact held physical copies of the book in
    stock. In particular, he argued that: (1) the business records of Consortium
    documented sales of the book; (2) General Counsel for Walmart, in a letter
    dated October 24, 2014, identified Baker & Taylor as the supplier of the
    book, which implied that Walmart Stores Inc. held a supply; and (3) an
    affidavit from Baker & Taylor in another proceeding established that Baker
    & Taylor had supplied two American universities with two copies of the book
    that it had received from Consortium (the Baker & Taylor affidavit).

[11]

These
    submissions are without merit: (1) the business records in evidence are clear
    that the only sales of the book were unfilled backorders; (2) the October 24,
    2014 letter cannot bear the interpretation that Mr. Miguna assigns to it; and
    (3) the motion judge reasonably and permissibly preferred the preponderance of
    the evidence before him to the untested Baker & Taylor affidavit.

[12]

The
    motion judges findings of fact are all supported by evidence and entitled to
    deference.

[13]

However,
    some further comment on the Baker & Taylor affidavit is necessary. At the
    hearing of the summary judgment motion, the motion judge refused Mr. Migunas
    motion to strike a paragraph from Walmart Stores, Inc.s factum. Mr. Miguna had
    objected to the paragraph in question on the grounds that it relied on material
    not in evidence: a letter from Baker & Taylors lawyer addressing the Baker
    & Taylor affidavit. Counsel for Consortium advised the motion judge that it
    expected to introduce this letter into evidence through a forthcoming
    affidavit.

[14]

The
    motion judge was not willing to rely on the letter. Although he dismissed Mr.
    Migunas motion (which was a permissible exercise of his discretion) the
    transcript reveals that he nevertheless shared Mr. Migunas concern about the
    reference to the intended affidavit. He disregarded it as nothing more than an
    assertion of counsel. Significantly, Mr. Miguna was unable to point to any
    place in the motion judges reasons that would suggest that the motion judge
    relied on this material, and merely speculates that he must have relied on it in
    rejecting the claim that the respondents stocked physical copies of the book. We
    reject this argument. There was ample evidence before the motions judge to
    enable him to conclude that neither of the respondents ever physically received
    or sold a copy of the book.

[15]

Finally,
    we reject Mr. Migunas claim of bias on the part of the motion judge. The
    record discloses that Mr. Miguna was given a fair and impartial hearing, and
    that the motion judge carefully and properly determined the motion based on the
    evidence before him and the parties submissions.

[16]

The
    appeal is dismissed. Costs are awarded to the respondents in the amount of
    $20,000 each, inclusive of disbursements and HST.

K. van Rensburg J.A.

G. Pardu J.A.

B. Miller J.A.


