I also noted that the CBC - which is subsidized by taxpayers to the tune of more than $1.1 billion per year – had not asked the Court for an order for security of costs. Ms. Leuthold is not resident in Canada and such security for costs orders are quite normal in the case of non-residents. A plaintiff can avoid such an order if impecuniosity can be demonstrated and the Court is of the opinion that the case has merit. Without commenting on this particular case, such orders can be very effective at stopping speculative litigation brought by non-residents of Canada. I have not hesitated to use this tool when necessary. And it has worked.
The appellant resides in the United States. She is self-employed as a gardener on a seasonal basis (Affidavit of Catherine Leuthold, Appelant’s Motion Record, p.1, paras. 4 and 5). She also occasionally licenses photographs which she takes (ibidem). Her average yearly taxable income is less than $15,000.00 US and her assets are of limited value (Affidavit of Catherine Leuthold, Appelant’s Motion Record, p.2, paras. 6 and 8; Exhibit CL-1, Appellant’s Motion Record, p.5; Exhibit CL-2, Appellant’s Motion Record, p.60).
 Amongst the questions in issue on appeal is whether a communication to the public for purposes of the Copyright Act, R.S.C. 1985, c. C-42 takes place when the photos are transmitted to the broadcasting distribution undertakings or on each occasion when the broadcasting distribution undertakings retransmit the photographs to the public (Amended Notice of Appeal, Appellant’s Motion Record, pp. 85 and 86, paras. II and III). The number of instances when the appellant’s copyright was infringed turns on this question (Motion Record, Reasons, p. 62, para. 105). While I do not believe that the appellant can seriously envisage obtaining an award of the magnitude which she claims, I am unable to conclude that the issue raised on appeal cannot lead to an award that is more favourable to the appellant. To that extent, I am satisfied that the appeal has been shown not to be without merit and I exercise my discretion so as to allow it to proceed.(Emphasis added)
In case anyone was not already aware, Canadian copyright litigation is not a lottery. One cannot necessarily expect to receive $21.5 million from the proceeds of a lawsuit against a public broadcaster involving a mistaken re-use – or even six such re-uses - of 18 seconds worth of still photographs in a feature length CBC documentary, when the original license was given for $2,500.
…If this decision is to indeed have “significant effects in both Canadian copyright and broadcasting law” as her counsel suggests, I suspect that it will be to remind potentially aspiring litigants and their counsel that litigation is in Canada is not like a lottery and Canadian judges do not hand out gigantic jackpots like American juries sometimes do. One can normally expect that Canadian Courts will follow the maxim as stated by Justice Scott of the Federal Court in this case that:Fundamentally, the Court‘s discretion is broad but its assessment of damages must be based on common sense.