IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Henni v. Food Network Canada Inc.,  
2022 BCSC 1711  
Date: 20221003  
Docket: S134233  
Registry: Vancouver  
Between:  
Andrew John Henni, Jennifer Pearl Butcher, Raphael Cohen, Stephen Anthony  
Carney, John Pearl Enterprises Ltd.  
Plaintiffs  
And  
Food Network Canada Inc., Cineflix Media Inc./Media Cineflix Inc., Cineflix  
(Food Factory) Inc., Cineflix (Food Factory 2) Inc., Cineflix (Food Factory 3)  
Inc., Cineflix (Food Factory 4) Inc., Cineflix (Food Factory 5) Inc., Cineflix (Food  
Factory 6) Inc., Cineflix (Food Factory USA) Inc., Cineflix (Food Factory USA 2)  
Inc., Cineflix (Home Factory) Inc., Cineflix (Style Factory) Inc., and Leslie  
Merklinger  
Defendants  
Before: The Honourable Madam Justice J. Hughes  
Reasons for Judgment  
Counsel for the Plaintiffs/Respondents:  
Counsel for the Defendants/Applicants:  
J.G. Dives, K.C.  
N. Pike  
S.E. Foster  
Place and Dates of Hearing:  
Place and Date of Judgment:  
Vancouver, B.C.  
May 12-13, 2022  
Vancouver, B.C.  
October 3, 2022  
Henni v. Food Network Canada Inc.  
Page 2  
Table of Contents  
OVERVIEW................................................................................................................ 3  
FACTS....................................................................................................................... 4  
Nature of the Claims and Defences in Issue .......................................................... 6  
Expected Evidentiary Record at Trial ..................................................................... 7  
LEGAL PRINCIPLES STRIKING JURY NOTICES................................................ 9  
Rule 12-6(5)(a)..................................................................................................... 10  
Rule 12-6(5)(b)..................................................................................................... 11  
ANALYSIS............................................................................................................... 12  
Rule 12-6(2): Contractual Grounds for Striking Jury Notice ................................. 12  
Rule 12-6(5)(a): Difficulty Grounds for Striking Jury Notice.................................. 16  
General Principles of Copyright Infringement ................................................... 17  
Rule 12-6(5)(a)(i): Prolonged Examination of Documents or Accounts That  
Cannot Conveniently be Made With a Jury....................................................... 19  
Rule 12-6(5)(a)(ii): Issues of An Intricate and Complex Nature ........................ 22  
CONCLUSION......................................................................................................... 28  
Henni v. Food Network Canada Inc.  
Page 3  
Overview  
[1]  
The defendants apply for an order pursuant to Rule 12-6(5) of the Supreme  
Court Civil Rules, B.C. Reg. 168/2009 [Rules], that the trial of this action be heard  
without a jury. The plaintiffs oppose the application. The trial is scheduled for 24-  
days beginning October 2, 2023.  
[2]  
The underlying action is primarily a copyright infringement claim that arises  
out of the plaintiffs’ submission of a television show concept called “Food Factories”  
to the defendant, Food Network Canada Inc. (“Food Network”). The plaintiffs allege  
that Food Network rejected their submission, but then commissioned a program  
called “Food Factory”, which they say is virtually identical to “Food Factories”. The  
balance of the defendants are the production companies for various seasons of  
Food Factory, Style Factory, Home Factory, and an individual defendant, Leslie  
Merklinger.  
[3]  
In defence of the plaintiffs’ claims, the defendants plead the terms of a full  
and final release of proprietary rights (the “Release”) that the plaintiff Andrew Henni  
executed in favour of Shaw Media Inc. (“Shaw Media”) when he submitted the “Food  
Factories” concept to the Food Network Canada channel. Shaw Media is the parent  
company to the defendant Food Network. The defendants also say that the plaintiffs’  
“Food Factories” concept was not original and therefore not subject to copyright  
protection, and that in any event, they did not copy original aspects of it or otherwise  
infringe the plaintiffs’ copyright.  
[4]  
The issue on this application is whether the jury notice filed by the plaintiffs in  
this action ought to be struck. This determination turns on whether construction of  
the Release is the principal issue in this litigation, or whether the claim is otherwise  
not suitable for trial by jury because the issues raised are of an intricate or complex  
character, or require a prolonged examination of documents which cannot be made  
conveniently with a jury.  
[5]  
The defendants take the position that the construction of the Release is the  
principal issue in the litigation such that this action comes within the scope of Rule  
 
Henni v. Food Network Canada Inc.  
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12-6(2) and thus must proceed to trial by judge alone. The defendants also say that  
the issues are unsuitable for a jury under Rule 12-6(5)(a) because they are intricate  
and complex and will require a prolonged examination of documents that cannot be  
conveniently done by a jury.  
[6]  
Conversely, the plaintiffs claim that the construction of the Release is “an  
ancillary and minor matter” that is not the main or central focus of the trial. In the  
plaintiffs’ view, the trial will not require a prolonged examination of documents or  
raise intricate or complex issues.  
[7]  
For the reasons that follow, I grant the defendants’ application and order that  
the trial of this action be heard by judge alone.  
Facts  
[8]  
The plaintiffs are four individuals (Andrew Henni, Jennifer Butcher, Raphael  
Cohen and Stephen Carney) and a corporate entity, John Pearl Enterprises Ltd. The  
plaintiffs allege that three television showsFood Factory, Style Factory and Home  
Factorythat aired on the Food Network Canada channel and its American  
counterpart, infringed their copyright in the Demo. The plaintiffs also advance claims  
for breach of confidence and unjust enrichment.  
[9]  
The defendant Food Network operates the Food Network Canada channel.  
Cineflix Media Inc. and its subsidiaries are the production companies that produced  
different seasons of the television shows Food Factory, Style Factory and Home  
Factory (collectively the “Cineflix Defendants”). Shaw Media is the predecessor to  
Corus Entertainment Inc. and the parent company of its wholly-owned subsidiary  
Food Network.  
[10] The individual defendant, Leslie Merklinger, was at the relevant time the  
Director of Original Production, Lifestyle Content at Shaw Media. Ms. Merklinger’s  
responsibilities included commissioning Canadian independent producers to develop  
and produce programs for the Food Network Canada channel.  
 
Henni v. Food Network Canada Inc.  
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[11] The plaintiffs claim that in or about 20092010, they developed a concept for  
a television show about mass production of food items that they titled “Food  
Factories”, that was suitable for broadcast on Food Network Canada channel. The  
plaintiffs plead that the distinguishing characteristics of their concept include:  
a) Scenes and descriptions of significant quantities of materials being  
handled and high speed machinery processing substantial quantities of  
food goods”;  
b) “Scenes of employees or owners of the plant or company being featured  
to add a human touch to the program”;  
c) A title that was a “catchy expression which would clearly indicate the main  
theme of the program”; and  
d) “More than one food item…featured in each show”.  
[12] In April 2011, the plaintiffs submitted their concept to the defendant Food  
Network in the form of a demo reel DVD (the “Demo”). The Demo was 22 minutes  
long and documented the production of pasta, peanut butter and eggs.  
[13] The Demo was submitted together with the Release. It is not disputed that the  
Release was signed by or on behalf of the plaintiffs. The Release provides as  
follows:  
Shaw Media Inc.  
Submission Release  
Title of Project: Food Factories (the “Project”)  
Submitter (Please print name clearly): Drew Henni.  
As an inducement to, and in consideration of, Shaw Media Inc.’s (hereafter  
“Shaw”) willingness to receive for review any and all proposals, ideas,  
concepts and materials in connection with the Project (whether written or  
otherwise) submitted to Shaw by Submitter at any time, in any form of  
communication, before or after the date of this release (collectively, the  
“Materials”), Submitter agrees as follows (this “Release”).  
1. Submitter irrevocably releases and discharges Shaw and its affiliates, and  
their respective shareholders, directors, officers, employees, licensees and  
assigns (collectively, the “Shaw Parties”) from and against any claim, action,  
Henni v. Food Network Canada Inc.  
Page 6  
loss or expenses arising out of, in connection with, or relating to, Submitter’s  
submission of the Materials and Shaw’s use and review of the Materials as  
contemplated in this Release.  
2. Shaw will not use the Materials (except for the review contemplated by this  
Release) without first negotiating compensation for such use with Submitter,  
but it is understood and agreed that Shaw may freely use any part of the  
Materials that it otherwise has a legal right to use without liability to Submitter.  
5. Submitter acknowledges and agrees that:  
(c) There is no relationship of any type created or implied, including any  
fiduciary relationship, as between Submitter and any Shaw Party, by virtue of  
the submission by Submitter of the Materials; and  
(d) Shaw receives numerous submissions of, and commissions the creation  
of numerous, ideas, treatments, stories, outlines, scripts, teleplays, formats  
and other material and elements from many parties (collectively the “Shaw  
Materials”). The Shaw Materials previously created or created in future may  
be substantially similar to or identical with elements contained in the  
Materials. Shaw has the unrestricted right to use the Shaw Materials without  
compensation, obligation or liability to Submitter whatsoever.  
[14] In May 2011, Shaw rejected the plaintiffsDemo. The plaintiffs say that Food  
Network then went on to commission a “virtually identical” concept—Food Factory—  
which first aired in September 2012. Food Factory was produced by Cineflix Media,  
which is the parent company of the Cineflix Defendants. Style Factory and Home  
Factory are produced by Cineflix (Style Factory) Inc. and Cineflix (Home Factory)  
Inc., respectively.  
Nature of the Claims and Defences in Issue  
[15] In their further amended notice of civil claim, the plaintiffs plead claims of  
copyright infringement under the Copyright Act, R.S.C. 1985, c. C-42, and breach of  
confidence. The plaintiffs also claim that the defendants have been unjustly  
enriched. With respect to Ms. Merklinger, the plaintiffs allege that having knowledge  
of their Demo, she provided substantive and specific instructions for the  
development of Food Factory to the Cineflix Defendants, and that they used this  
information to develop Food Factory in a manner that was virtually identical to the  
plaintiffs’ concept and the Demo.  
 
Henni v. Food Network Canada Inc.  
Page 7  
[16] The defendants say that the Release is their primary and overarching defence  
to the plaintiffs’ claim. In the defendants’ submission, the entirety of the claim against  
them is precluded or limited by the terms of the Release.  
[17] Aside from the Release, the defendants’ response to the claim is in large part  
predicated on the assertion that the Demo was not original and is thus not capable  
of being the subject of copyright protection under the Act. The defendants say that  
as of April 2011, a genre of television programs documenting how products are  
made already existed. They point to “How It’s Made” and “Unwrapped”, television  
shows that the defendants say first aired long before the Demo (as early as 2001),  
andlike the Demohave included segments on pasta, peanut butter and eggs.  
The defendants also take the position that they did not copy the Demo and that the  
Cineflix Defendants developed Food Factory (and subsequently Style Factory and  
Home Factory) in complete isolation from and without knowledge of the Demo.  
[18] As the pleadings presently stand, the plaintiffsclaim puts in issue six  
seasons of Food Factory (128 episodes), two seasons of Food Factory USA (46  
episodes), one season of Home Factory (14 episodes) and one season of Style  
Factory (15 episodes). Each episode is approximately 2224 minutes long.  
[19] If copyright infringement is established, the plaintiffs claim an accounting and  
disgorgement of profits that is broad in scope as it relates to all three shows (Food  
Factory, Style Factory and Home Factory), and 12 corporate defendants. In the  
defendants’ submission, assessing damages in the event that copyright infringement  
is made out will be complex and require an extensive review and analysis of the  
corporate defendants’ contractual relationships and financial records.  
Expected Evidentiary Record at Trial  
[20] The parties presently expect that approximately 24 fact witnesses will testify  
at trial: five for the plaintiffs and 19 for the defendants. Expert evidence is also  
expected to be tendered on both liability and damages.  
 
Henni v. Food Network Canada Inc.  
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[21] As to liability, the defendants have served a report of Dr. Tasha Oren, opining  
on:  
a) the history of the “How It’s Made” genre prior to 2010;  
b) the format, structure, content, style, atmosphere, dynamics and motifs in  
pre-existing programs (How It’s Made and Unwrapped) and the plaintiffs’  
Demo; and  
c) the similarities and differences, including both patent and latent elements,  
between the plaintiffs’ Demo, the pre-existing programs (How It’s Made  
and Unwrapped), and the defendants’ programs Food Factory, Food  
Factory USA, Home Factory and Style Factory, respectively.  
[22] The plaintiffs object to Dr. Oren’s report on the basis that it is largely irrelevant  
to the matters in issue in the action, is unnecessary and purports to make findings of  
fact that are the purview of the trial judge. The defendants say that Dr. Oren’s report  
is intended to assist the court in its consideration of the hundreds of allegedly  
infringing episodes of Food Factory, Style Factory and Home Factory. However, if  
the plaintiffs’ objection succeeds, the defendants say that the trier of fact will then  
need to view a substantial number of those episodes to determine the copyright  
infringement claim.  
[23] This Court expressed a similar view in finding that this case was not suitable  
for determination by summary trial. In that instance, Justice Tammen noted the  
following (Henni v. Food Network Canada Inc. (11 January 2018), Vancouver  
S134233 (B.C.S.C.) [Henni January 2018]):  
[14] During the suitability application, some of the video clips were played in  
court, totally approximately one hour. The defendants propose to play some  
additional portions during their summary trial application and to make detailed  
submissions on such things as originality of content, camera angles,  
formatting and various other matters which go to the ability of the content to  
be copyrighted. It seems to me that at any trial the trial of fact would need to  
view the entire body of that evidence and carefully examine it for similarities  
in order to reach conclusions on those arguments. The video portion of the  
Henni v. Food Network Canada Inc.  
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evidence presentation even on a summary trial could well occupy two full  
court days.  
[Emphasis added.]  
[24] The defendants have produced thousands of documents in the action, many  
of which relate to the financial and contractual arrangements between Shaw Media,  
Cineflix Media and its subsidiaries, and the claim against Ms. Merklinger arising out  
of her involvement in the development of Food Factory.  
[25] With respect to the claim against Ms. Merklinger, the defendants intend to  
canvass a significant volume of email correspondence between her and the other  
defendants to respond to the allegation that she directed the Cineflix Defendants to  
develop Food Factory (and later Home Factory and Style Factory) in a manner that  
copied the Demo.  
[26] As to damages, the defendants say that if copyright infringement is made out,  
an extensive review of financial and contractual documentation will be necessary to  
conduct a proper assessment of damages. This documentation will also form the  
factual underpinnings for three expert reports that have been served to date.  
[27] The plaintiffs have served two expert reports from Robert D. MacKay relating  
to future loss figures and an accounting of the defendants’ profits respectively. The  
latter report concluded that it was not possible to determine the total profits  
generated by the defendants from the Food Factory shows and that it was unclear  
from the available documents what profits they earned from production and  
distribution of the Food Factory shows in Canada. Nonetheless, the plaintiffs assert  
that Mr. MacKay was able to synthesize the documents relating to the defendants’  
worldwide profits into a simple report. The defendants intend to tender a responsive  
report once Mr. MacKay has provided a complete report.  
Legal Principles Striking Jury Notices  
[28] This application is brought pursuant to Rule 12-6(5), which provides as  
follows:  
 
Henni v. Food Network Canada Inc.  
Page 10  
Court may refuse jury trial  
(5)  
Except in cases of defamation, false imprisonment and malicious  
prosecution, a party on whom a notice under subrule (3) has been served  
may apply  
(a) within 7 days after service for an order that the trial or part of it be  
heard by the court without a jury on the ground that  
(i) the issues require prolonged examination of documents or  
accounts or a scientific or local investigation that cannot be  
made conveniently with a jury,  
(ii) the issues are of an intricate or complex character, or  
(iii) the extra time and cost involved in requiring that the trial be  
heard by the court with a jury would be disproportionate to the  
amount involved in the action, or  
(b) at any time for an order that the trial be heard by the court without  
a jury on the ground that the trial relates to a fast track action or to  
one of the proceedings referred to in subrule (2).  
Rule 12-6(5)(a)  
[29] Subrules 12-6(5)(a)(i)(iii) are to be treated disjunctively, not as factors in a  
holistic assessment of whether the jury notice ought to be struck: Cochrane v.  
Insurance Corp. of British Columbia, 2005 BCCA 399; Rados v. Pannu, 2015 BCCA  
459 [Rados BCCA]; Royal Bank v. Shaw, 2016 BCSC 2285 at para. 27; Sidhu v.  
Hiebert, 2020 BCSC 183.  
[30] The party applying to set aside the jury notice faces a high onus to satisfy the  
court that one of the grounds set out in Rule 12-6(5) is established: Han v. Cho,  
2008 BCSC 1192 at para. 15; MacPherson v. Czaban, 2002 BCCA 518 at para. 17.  
[31] Rule 12-6(5) requires a two-step analysis. First, the court determines whether  
the issues in the case require a prolonged examination of documents, scientific  
investigation, or are otherwise of an intricate or complex character. If the court finds  
that prolonged examination of documents or a scientific investigation is necessary, it  
must then consider whether that examination can be made conveniently with a jury.  
[32] Similarly, if the court determines that the issues are of an intricate or complex  
character, it must proceed to determine whether the trial should be heard without a  
jury: Rados BCCA at paras. 67, citing Rados v. Pannu, 2015 BCSC 453 at paras.  
 
Henni v. Food Network Canada Inc.  
Page 11  
3435 [Rados BCSC]; Sidhu at paras. 20–22. The court’s discretion at the second  
stage of the analysis is somewhat broader when a finding has been made that the  
issues in the case are intricate or complex: Rados BCCA at paras. 67.  
[33] Complexity must be assessed cumulatively with the whole of the trial in mind  
and with an appreciation of the extent to which factual findings will impact on the  
weight that may be given to expert reports and guide the assessment of issues such  
as quantification of damages. The focus of the inquiry is on the character of the  
issues, not the number of issues in play: Rados BCCA at paras. 67, citing Rados  
BCSC at para. 34.  
[34] The phrase “cannot be made conveniently with a jury” requires the ability to  
have a proper trial, including not just an understanding of the evidence as it is  
elicited, but the ability to retain that understanding throughout the trial to enable a  
meaningful analysis to be conducted at the end of the day: Rados BCSC at para. 36,  
citing Wipfli (Guardian ad litem of) v. Britten (1981), 32 B.C.L.R. 343 at 347, 1981  
615 (S.C.) [Wipfli]; Lee v. Averbach, 2019 BCSC 1280 at para. 14.  
Rule 12-6(5)(b)  
[35] Rule 12-6(5)(b) provides that an order that the trial be heard by the court  
without a jury may be made at any time on the ground that the trial relates to one of  
the proceedings referred to in subrule (2). Rule 12-6(2) provides that “A trial must be  
heard by the court without a jury if the trial relates toa proceeding referred to in  
Rule 2-1 (2)”. Rule 2-1(2)(c) refers to proceedings where the sole or principal  
question at issue is alleged to be one of construction of an enactment, will, deed,  
oral or written contract or other document”.  
[36] Whether a trial “relates to” a matter pursuant to Rule 12-6(2) means  
something more than “touches on or is in any way concerned with” one of the  
excluded matters. An excluded matter must be the main or central focus of the trial:  
Han at para. 37. If the findings of fact will substantially dispose of the issues to be  
tried, Rule 12-6(2) ought not to be applied. However, if after the facts are found there  
remains a genuine question as to the significance of those facts when construing a  
 
Henni v. Food Network Canada Inc.  
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contract, it will be the “principle question in issue” regardless of the relative length or  
complexity of the fact-finding exercise: Nelson Marketing International v. Royal &  
Sun Alliance Insurance, 2003 BCSC 439 at para. 20 [Nelson Marketing].  
[37] If it is found that the action relates to a matter set out in Rule 12-6(2), then  
there is no discretion to be exercised and the jury notice must be set aside: G. Peter  
Fraser, John W. Horn & Susan A. Griffin, The Conduct of Civil Litigation in British  
Columbia (LexisNexis Canada, 2007) (loose-leaf release 40) at §53.3. It is of no  
consequence that there are other claims raised in this litigation that are not barred  
by the Rules from being heard by a jury. Absent severance of those claims, the  
effect of the fact that one of the claims cannot be heard by a jury is that the whole of  
the action cannot be heard by a jury: McNarland v. Yada, 2003 BCSC 1404 at para.  
11.  
Analysis  
Rule 12-6(2): Contractual Grounds for Striking Jury Notice  
[38] The defendants say that the jury notice ought to be struck pursuant to Rule  
12-6(2)(f), or the combined effect of 12-6(2)(j) and 2-1(2)(c), because their principal  
defence is the Release and whether it bars the plaintiffs’ claims. In my view, Rule  
12-6(2)(f) does not apply as the pleadings do not raise a claim seeking “the  
rectification, setting aside or cancellation of” the Release. Whether the jury notice  
ought to be struck on contractual grounds thus falls to be determined under Rule 12-  
6(2)(j) and whether this action relates to a matter referred to in Rule 2-1(2)(c),  
namely whether “the sole or principal question at issue is alleged to be one of  
construction of” the Release.  
[39] Interpretation of the Release is an exercise in contractual interpretation which  
requires the court to consider both the words of the release and the objective  
evidence of the “surrounding circumstances” of the parties thereto: Corner Brook  
(City) v. Bailey, 2021 SCC 29 at paras. 2021. This engages Rule 12-6(2)(j) by way  
of Rule 2-1(2)(c). A jury notice may be struck where construction issues arise in  
   
Henni v. Food Network Canada Inc.  
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respect of a release pleaded in response to the whole of a claim: Zaworski & Other  
v. Carrier Lumber Ltd., 2004 BCSC 194 at paras. 1416.  
[40] The defendants concede that construction of the Release is not the sole issue  
in the action, but do say that it is the principal issue. In the defendants’ submission,  
construction of the Release has always been central to their defence and if that  
defence succeeds, the action fails. In this way, the defendants characterize the  
Release as a “silver bullet” that has the potential to dispose of the entirety of the  
claims brought against them.  
[41] The plaintiffs disagree and say that the Release is only a “minor” issue and  
has been treated as such by the defendants until this application was brought. In this  
regard, they point to the Release not being included as an issue for determination at  
trial in one of the defendants’ early trial briefs. The plaintiffs also note that regardless  
of whether the Release operates to bar their claims, the action will still require a  
lengthy trial, the majority of which will be dedicated to determining whether the claim  
of copyright infringement is made out.  
[42] The fact that the defendants’ pleadings put interpretation of the Release in  
issue has been recognized by the Court on two prior occasions: Henni v. Food  
Network Canada Inc. (21 December 2017), Vancouver S134233 (B.C.S.C.) at para.  
1; Henni January 2018 at para. 3. The likelihood that construction of the Release will  
factor centrally in the trial is also evident from the positions taken by the parties as to  
its effect on various aspects of the claim.  
[43] First, there is a dispute as to which of the defendants are covered by the  
Release. It will therefore need to be interpreted to determine whether some or all of  
Ms. Merklinger, Food Network and the Cineflix Defendants fall within the meaning of  
“employees”, “affiliates” or “licensees” of Shaw Media respectively under clause 1 of  
the Release. This will require findings of fact to be made regarding the relationships  
between Shaw Media and the defendants, and then the interpretation and  
application of the Release to determine which of the defendants obtain its benefit.  
Henni v. Food Network Canada Inc.  
Page 14  
[44] Second, there is a dispute as to whether the Demo was provided to Shaw  
Media in circumstances giving rise to an obligation of confidence, which is a key  
element of the plaintiffs’ breach of confidence claim. The plaintiffs say the Demo was  
communicated in confidence; the defendants point to clause 5 of the Release as  
negating any obligation of confidence arising in the circumstances of the Demo  
being submitted to Shaw Media.  
[45] Finally, the plaintiffs acknowledge that a favourable construction of the  
Release will be a factor in their success at trial. They submit that the Release does  
not release proprietary rights and, to the extent that it may limit claims, it does not  
limit those being advanced in this action. The plaintiffs also point to clause 2 of the  
Release, and say that if Shaw Media did not otherwise have a legal right to use  
content included in the Demo, then it could not do so without compensation to the  
Plaintiffs. This is another way in which the interpretation of the Release will factor  
heavily in this action, particularly in light of the plaintiffs framing one of the  
overarching issues in the litigation as whether the defendants had a right to use the  
concept reflected in the Demo, and if not, whether they did so without compensating  
the plaintiffs.  
[46] I am cognizant that much of the trial will be devoted to the plaintiffs’ proof of  
their copyright infringement claim, and that from their perspective, this is the central  
issue. Whether or not the defendants copied original elements of the plaintiffs’ Demo  
in their development and production of Food Factory, Style Factory or Home Factory  
and thereby infringed the plaintiffs’ copyright are principle issues of fact and law that  
will need to be determined at trial. The fact-finding exercise at trial will be lengthy  
and complex, likely occupying the bulk of the trial. However, this is not determinative  
of the present inquiry.  
[47] I agree with the defendants that, while proof of the copyright infringement  
claim is the central issue in the case from the plaintiffs’ perspective, the  
interpretation of the Release and the resulting effect it has on the plaintiffs’ ability to  
succeed on some or all of their causes of action (copyright infringement, breach of  
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Page 15  
confidence and unjust enrichment) will, at the end of the day, be the central issue in  
the action. Put differently, if the defendants prevail on their interpretation of the  
Release, the plaintiffs’ claims cannot succeed. Conversely, if the plaintiffs prevail on  
their interpretation of the Release, then they may succeed against the defendants on  
some or all of their claims.  
[48] In that way, this case is akin to Nelson Marketing, where a Master’s decision  
finding that interpretation of an insurance policy was a principal issue in the litigation  
and striking a jury notice on that basis was upheld on appeal. In so concluding,  
Justice McEwan approved of the approach taken in Bell v. AXA Pacific Insurance  
Co., [1997] B.C.J. No. 2026, 1997 2487 (S.C.):  
[15]  
In Bell v. AXA Pacific Insurance Co., [1997] B.C.J. No. 2026  
(B.C.S.C.), Master McCallum dealt with a case where the parties were at  
odds over whether the principal issue was the construction of a fire insurance  
policy, or whether it was the “cause” of the fire. Master McCallum made the  
following observations:  
¶17 This is a case where the principal question at issue is  
one of construction of the policy of insurance issued by Axa  
and upon which the plaintiffs rely. The causation issue will  
undoubtedly be important but it could not be said, in my view,  
that a finding in favour of the plaintiffs on the causation issue  
will necessarily resolve the litigation. The defendants are  
entitled to rely upon the wording of the policy with respect to  
misrepresentation at last and the issue of construction will  
become the principal question even in those circumstances.  
The framers of the rules elected to take from juries trial where  
the principal question is one of construction of a contract.  
Ultimately this proceeding will involve as its central theme  
construction of the policy of insurance issued by Axa to the  
plaintiffs. As in Watchel, the court will be required to make  
findings of fact with respect to the cause of the fire. I am not  
persuaded that resolution of the factual issue involving  
causation will necessarily resolve the proceeding.  
[16]  
This strikes me as the right way to approach such questions.  
[18]  
I think that to seize upon the phrase “the sole or principal question at  
issue” as if one must then weigh the issues of fact against the “questions at  
issue” referred to in Rule 10(1)(b) to determine which should be declared  
“principal” is to adopt a somewhat flawed analysis. In Bell, Master McCallum  
asked himself whether the resolution of the causation issue (ie, the issues of  
fact) would “necessarily resolve the litigation”. I think that approximates the  
proper test, which really must be whether, once the facts are decided, there  
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remain “questions at issue” as to the “construction of an enactment, will,  
deed, oral or written contract, or other document”.  
[20]  
These cases demonstrate that if the findings of fact substantially  
dispose of the issues to be tried then Rule 39(25) should not be applied. But  
if, after the facts have been found, a genuine question remains as to the  
significance of those facts within a Rule(10)(b) issue, it will be the “principle  
question in issue” within the meaning of the Rule, regardless of the relative  
length or complexity of the fact finding exercise itself.  
[Emphasis added.]  
[49] Similarly in this case, even if the plaintiffs are successful in establishing  
copyright infringement, that will not dispose of the litigation in their favour. The  
proper construction and application of the Release, including whether it releases  
proprietary rights and which of the defendantsif anyit applies to, then comes into  
play. These issues will remain to be determined after the facts are found with  
respect to whether copyright infringement is made out. The plaintiffs cannot succeed  
unless and until the Release is interpreted in their favour so as not to bar some or all  
of their claims, or not to apply to some or all of the defendants who may be found  
liable to the plaintiffs. In this way, it is the interpretation of the Release and its  
application to the facts as found that will determine the litigation.  
[50] When considered from this perspective, it becomes clear that interpretation of  
the Release is the central issue in the litigation. Neither party can succeed without  
that issue being resolved largely in their favour. In the result, I am of the view that  
the principal issue in this case is the construction and application of the Release. As  
such, the jury notice must be struck pursuant to Rule 12-6(2).  
Rule 12-6(5)(a): Difficulty Grounds for Striking Jury Notice  
[51] In the event that I am incorrect in my conclusion that the jury notice must be  
struck under Rule 12-6(2), I am also satisfied that the issues in this case are not  
suitable for trial by jury because they are intricate and complex in nature, and will  
require a prolonged examination of documents that cannot conveniently be made  
with a jury.  
 
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General Principles of Copyright Infringement  
[52] The defendants’ application to strike the jury notice under Rule 12-6(5)(a)  
turns in large part on their assertion that copyright infringement by their very nature  
are not well-suited to trial by jury. In the defendants’ submission, whether the  
plaintiffs’ copyright was infringed is not simply a matter of watching the allegedly  
infringing episodes and comparing them to the Demo, but instead requires a  
complex multi-factoral analysis, as set out by the Supreme Court of Canada in Cinar  
Corporation v. Robinson, 2013 SCC 73 [Cinar]. As such, a brief review of applicable  
principles of copyright infringement is required to inform the analysis.  
[53] Section 27(1) of the Copyright Act provides that it is an infringement for any  
person to do anything that the owner of the copyright has the right to do, one of  
which rights is the sole right to produce or reproduce the work or any substantial part  
thereof in any material form (s. 3(1)).  
[54] Absent direct proof of copying, the plaintiff bears the onus of establishing the  
elements of infringement (Pyrrha Design Inc. v. Plum and Posey Inc., 2019 FC 129  
at para. 121):  
a) similarity sufficient similarity between the infringing work and the  
copyright work or of a substantial part of the copyright work; and  
b) access evidence of access to the work or a connection between the two  
works showing that the copyright work is the source for the infringing work.  
[55] The court must also be satisfied that the parties own their respective  
copyrights: Copyright Act, s. 13(3). Once these elements are established, a prima  
facie case of infringement is raised, but can be negated by the defendant showing  
that the infringing work is the result of work from a common source or that it is an  
independent creation: Pyrrha at para. 122; Phillip Morris Products S.A. v. Marlboro  
Canada Ltd., 2010 FC 1099 at para. 320.  
 
Henni v. Food Network Canada Inc.  
Page 18  
[56] An infringing work will have copied a substantial part of a copyrighted work.  
What constitutes a substantial part of a work is matter of fact and degree, and  
includes both literal and non-literal copying: Cinar at paras. 2627. As a general  
proposition, a substantial part of a work is a part that represents a substantial portion  
of the author’s skill and judgment: Cinar at paras. 2526. This is assessed  
holistically and qualitatively by first assessing all of the cumulative similarities  
between the works, then determining whether the similarities overall form a  
substantial part of the author’s skill and judgment. Non-original elements can form  
part of the substantial part of the author’s skill and judgment where the specific  
combination of these elements has been copied by the alleged infringer: Pyrrha at  
para. 125126, 128; see also Cinar at paras. 2643.  
[57] The relevant question is whether the similarities between the works are "a  
substantial part of the author's skill and judgment". The question is not whether the  
similarities are visually a substantial part of the work (both non-original and original),  
but whether the alleged infringer copied a substantial part of the originality of the  
author’s work: Cinar at para. 26; Pyrrha at para. 132.  
[58] Unlike trademark infringement cases, the substantial similarity analysis in  
copyright cases is grounded in whether a substantial part of the work has been  
copied, not whether a layperson could identify the similarities: Pyrrha at para. 130.  
Substantial similarity is to be assessed from the perspective of someone who can  
assess and appreciate all the relevant aspects of the work. This is the task of the  
trial judge, possibly assisted by expert evidence on the relevant art, but based on the  
evidence before them as to the relevant aspects of the work: Cinar at para. 51;  
Pyrrha at para. 131.  
[59] Finally, if copyright infringement is made out, the court must determine both  
damages suffered due to the infringement and also allocate profits between the  
original and infringing elements as well as each defendant’s liability: Copyright Act,  
s. 35.  
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Page 19  
[60] It is evident from the foregoing that determining the copyright infringement  
claim will require nuanced factual findings and a complex legal analysis. It is not  
simply a matter of watching a selection of the allegedly infringing programs to  
determine if they are facially similar.  
Rule 12-6(5)(a)(i): Prolonged Examination of Documents or Accounts  
That Cannot Conveniently be Made With a Jury  
[61] As noted above, Rule 12-6(5)(a)(i) mandates a two-part test in which I must  
first determine whether the issues in the action will require a prolonged examination  
of documents or accounts, or a scientific investigation. The fact that there may be  
numerous or lengthy documents does not necessarily mean that a prolonged  
examination is required; rather, the court must carefully consider what the evidence  
will actually be: Rados BCSC at para. 34; Lee at para. 13. However, it is reasonable  
to infer that the longer the trial and the more prolonged the examination of  
documents or scientific inquiry will be, the more difficult it will be for a jury to retain a  
clear understanding of the evidence and its significance to the determination of the  
issues in the case: Rados BCSC at para. 37.  
[62] The defendants say that the evidentiary record at trial will be voluminous,  
including:  
a) evidence from at least 24 fact witnesses and multiple expert witnesses;  
b) hundreds of documents, including email correspondence, spanning  
approximately seven years relating to the creation and development of  
Food Factory, Style Factory and Home Factory, both generally and in  
relation to the claim that Ms. Merklinger provided specific information to  
the Cineflix Defendants from the Demo that was then used to modify the  
Cineflix Defendant’s concept to mirror the plaintiffs’ concept;  
c) significant contractual and financial documents (licensing and profit-  
sharing agreements, royalty statements, accounts and budgets) relating to  
 
Henni v. Food Network Canada Inc.  
Page 20  
the commercial relationships and right between the various corporate  
defendants; and  
d) hundreds (if not thousands) of hours of video footage from How It’s Made,  
Unwrapped and all seasons of Food Factory, Home Factory and Style  
Factory. This may be attenuated somewhat if Dr. Oren’s expert report is  
admitted, but as noted above, that is not guaranteed given the plaintiffs’  
objection.  
[63] The plaintiffs say that individual episodes of the defendants’ programs are  
irrelevant given that their claim is framed as whether the defendants copied the  
same “spin” on the “How It’s Made” genre that the plaintiffs put on their concept as  
reflected in the Demo. In their submission, it is unnecessary to view all episodes of  
the allegedly infringing programs and that they do not intend to adopt such an  
approach at trial. In the plaintiffssubmission, even if a prolonged examination of  
documents is required, it can conveniently be done by a jury as “to the extent that it  
involves watching TV, it surely can’t be suggested that the jurors cannot  
conveniently watch TV”.  
[64] I disagree. In my view, the assessment of whether the Demo was capable of  
attracting copyright protection and whether the defendants’ productions infringed the  
plaintiffs’ copyright will require a more in-depth review and analysis than simply  
watching the programs to see if they look similar. The analysis prescribed by Cinar  
requires the trier of fact to determine which aspects of the content in issue is original  
or unoriginalwhich may include matters that are not immediately apparent to a  
casual observer or laypersonand then determine whether the original parts of the  
work have been copied.  
[65] While the trier of fact may not need to view every single allegedly infringing  
episode of Food Factory, Style Factory and Home Factory—especially if Dr. Oren’s  
report is admitted and the parties can come to an agreement for proof of the  
underlying factsit is likely that a significant portion of that video footage will still  
need to be viewed by the trier of fact. I agree with Justice Tammen that this footage  
Henni v. Food Network Canada Inc.  
Page 21  
will need to be carefully examined with respect to originality of content, camera  
angles, formatting and other matters that go to the ability of the content of the Demo  
to be copyrighted, and then for similarities between the Demo and the defendants’  
productions: Henni January 2018.  
[66] The same can be said in respect of the contractual and financial documents  
that will form part of the evidence at trial. In my view, these documents will need to  
be considered in detail to conduct a proper assessment of the plaintiffs’ damages if  
copyright infringement is made out, and to determine the claim against Ms.  
Merklinger.  
[67] Based on the evidence before me, I am satisfied that the documents that are  
likely to be adduced into evidence will be voluminous and will require detailed  
consideration by the trier of fact in order to make the findings of fact necessary to  
determine the claims advanced by the plaintiffs. It is clear that the evidentiary record  
to be put before the court will be extensive in terms of documents and video footage  
of the allegedly infringing programs.  
[68] Further, if the copyright infringement claim is made out, the resulting  
damages assessment will require the tier or fact to make determinations about  
revenues, costs and net profits, and then apportion those profits for the multiple  
Cineflix Defendants. The plaintiffs point to the expert evidence that the parties intend  
to lead on damages and its potential to simplify the examination and analysis. That  
may well be the case, though at present, Mr. MacKay appears to have encountered  
some difficulty in preparing his report. In any event, the evidence underlying the  
parties’ respective expert reports remains voluminous and will need to be adduced  
into the record at trial to prove the facts and assumptions upon which the experts’  
opinions are based.  
[69] In the result, I am satisfied on the evidence before me that the trial of this  
action will involve a prolonged examination of documents.  
Henni v. Food Network Canada Inc.  
Page 22  
[70] Turning to the issue of whether this can conveniently be undertaken by a jury,  
I agree with the defendants that it would be unrealistic to expect a jury to be in a  
position to make determinations of fact regarding original and unoriginal elements of  
patent or latent content in the Demo and then apply those findings to a significant  
number of hours of footage of three programs, and retain that knowledge through to  
the end of what is presently a five-week trial.  
[71] I reach the same conclusion with respect to the documents that will be  
necessary to assess damages and apportion profits if the plaintiffs’ copyright  
infringement claim is made out. The evidence before me suggests that, given the  
number of different corporate entities involved, the contractual and financial  
documents that must be examined in respect of this aspect of the claim are likely to  
be voluminous in nature and will require an in-depth consideration of detailed  
information that will be difficult for a jury to engage in within the confines of that  
process. The potential difficulties that may be encountered by a jury in this regard  
are highlighted by the complications encountered to date by the plaintiffs’ own  
experts.  
[72] I am satisfied that the prolonged examination of documents, in particular the  
video footage and financial and contractual documents that will be required to  
determine the plaintiffs’ copyright infringement claim, is not well-suited to a jury. In  
my view, it will be difficult for a jury to understand the nuances of the video evidence  
and complex financial documentation to be tendered and retain that understanding  
throughout the trial so as to enable a meaningful analysis at the end of the day. In  
the result, I find that the trial of this action will involve a prolonged examination of  
documents and that this examination cannot be conveniently undertaken by a jury.  
Rule 12-6(5)(a)(ii): Issues of An Intricate and Complex Nature  
[73] This subrule requires that I consider whether the issues in this case are of  
such an intricate or complex nature that they should be heard by a judge without a  
jury. As noted above, the court’s discretion to strike a jury notice is somewhat  
 
Henni v. Food Network Canada Inc.  
Page 23  
broader where the issues are found to be intricate or complex in nature: Rados  
BCSC at para. 35; Rados BCCA at para. 7.  
[74] The inquiry focuses on the character and interaction of the issues raised in  
the litigation: Holland v. Hallonquist (1968), 63 W.W.R. 207 at 221, 1968 936  
(B.C.C.A.); MacDonald (Guardian ad litem of) v. Smith (1983), 48 B.C.L.R. 285 at  
paras. 13-14, 1983 580 (S.C.). Certain elements, such as anticipated trial  
length, can suggest that a case is intricate and complex: Lee at para. 15. However,  
the inquiry is ultimately broader and contextual: Gulamani v. Chandra, 2009 BCSC  
1042 at para. 35, citing Yewdale v. Insurance Corp. of British Columbia, [1994]  
B.C.J. No. 2835 (S.C.).  
[75] Issues in isolation may be appropriate for jury determination, but may  
combine to create sufficient intricacy or complexity to justify striking a jury notice:  
MacDonald at paras. 1314. For example, a jury may not be appropriate when  
“issues cannot be determined on their own and may only be determined after other  
issues have been resolved, or in themselves be issues on which other issues are  
dependent”: Naicker v The Great West Life Assurance Company, 2002 BCSC 443 at  
para. 25.  
[76] The defendants say that the complexities of the copyright issues in this case  
make it inappropriate for trial by jury. In this regard, they point to a host of intricate  
issues that will need to be determined, consistent with copyright law as articulated in  
the jurisprudence (see e.g. Pyrrha at paras. 124125), including:  
a) whether the Demo was sufficiently original to attract copyright protection;  
b) are the defendants’ programs sufficiently original to also attract copyright  
protection, thereby negating any possibility of infringement;  
c) did the defendants copy a substantial part of the original, copyrighted  
elements of the Demo;  
Henni v. Food Network Canada Inc.  
Page 24  
d) if copying did occur, does it constitute infringement of the plaintiffs’  
copyright;  
e) if copyright infringement is made out, how are the profits allocated  
between original and non-original elements of the Demo; and  
f) if infringement is made out, which seasons of the defendants’ programs  
and which defendants are liable.  
[77] Concepts unique to copyright law such as the protection of expression  
instead of ideas, originality, and the “substantiality” of the alleged copying, will all  
need to be considered. The trier of fact will need to determine whether a substantial  
part of the Demo was copied and whether that part was original. This requires a  
qualitative analysis and is an issue in respect of which expert evidence is commonly  
led: Pyrrha, at paras. 124131; Cinar at paras. 33, 3536. As the Federal Court’s  
dicta in Pyrrha suggests, assessing substantial similarity is not a matter for the  
untrained eye:  
[131] Substantial similarity is to be assessed from the perspective of  
someone who can assess and appreciate all the relevant aspects of the work  
(Cinar at para. 51). This is the task of the trial judge, possibly assisted by  
expert evidence on the relevant art, but based on the evidence available to  
the judge as to the relevant aspects of the work.  
[78] For their part, the plaintiffs say that juries frequently deal with complex issues  
and that the judge will be able to explain the applicable principles of copyright law to  
the jury. However, the plaintiffs are unable to point to any instance in which a claim  
under the Copyright Act has been tried by jury. As the defendants note, copyright  
claims are not ordinarily tried by jury, and there are no reported cases in this  
jurisdiction where copyright claims have been found appropriate for a jury trial. In my  
view, this is illustrative of the complexity of such claims and their resulting  
unsuitability for determination by way of a jury trial.  
[79] Indeed, relatively few copyright claims are brought in this Court. Rather, most  
copyright claims are brought in Federal Court due to its expertise, expediency,  
national coverage, and power to expunge, vary, or rectify any copyright register  
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Page 25  
under s. 20(1)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7: David Vaver,  
Intellectual Property Law, 2d ed. (Toronto: Irwin Law, 2011) at 608. All matters  
before the Federal Court are heard and determined without a jury: Federal Courts  
Act, s. 49.  
[80] Further, in the event that the defendants are found liable for copyright  
infringement under the Act, the plaintiffs’ damages will then need to be assessed.  
Section 35 of the Act provides that where a person infringes copyright, they are  
liable to pay damages and also “such part of the profits that the infringer has made  
from the infringement and that were not taken into account in calculating the  
damages”. Subsection 35(2) then provides that in calculating profits, the plaintiff is  
required to prove revenues derived from the infringement, but the defendant then  
must prove “every element of the cost” claimed in respect of those revenues.  
[81] The plaintiffs’ expert, Mr. Mackay, has not yet been able to form a complete  
assessment of the profits earned by Corus Entertainment Inc. and the Cineflix  
Defendants from production and distribution of Food Factory in Canada, and has not  
attempted to do the same for Style Factory or Home Factory. The defendants say  
this is because of complexity. The plaintiffs disagree and say all that is needed from  
the accounting experts is the defendants’ total profit, which can then be apportioned  
based on the proportion of the plaintiffs’ work that is determined to have been copied  
by the defendants.  
[82] Regardless, the fact that both parties intend to tender expert opinion evidence  
on damages and the challenges experienced to date by Mr. MacKay in formulating  
his opinion, are in my view indicative that any such assessment will be intricate and  
complex in nature. I am satisfied that such an assessment will not be as simple as  
the plaintiffs contend and that it is likely to require a complex apportionment of net  
profits from different revenue streams and programs depending on which  
defendants, if any, are found liable to the plaintiffs and for which cause(s) of action.  
[83] Somewhat similar corporate structures and accounting arrangements were in  
issue in Royal Bank of Canada v. Shaw, 2016 BCSC 2285 [Shaw], where the  
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Page 26  
plaintiff sued on certain guarantees and a mortgage provided by individuals who  
were principals of film production companies. In that case, the plaintiff’s claim was  
relatively straightforward, while the defendants raised a multiplicity of defences and  
brought a counterclaim giving rise to issues that included breach of implied and  
express terms of the guarantees, breach of fiduciary duty, and unjust enrichment:  
Shaw at paras. 2324. The defendants filed a notice requiring trial by jury, and the  
plaintiff applied to have that notice struck under Rule 12-6(5)(a)(ii).  
[84] Following a comprehensive review of the applicable jurisprudence in the  
commercial context, Justice Voith (as he then was) struck the jury notice. In doing  
so, he recognized the intelligence of juries and that the onus of a party seeking to  
strike a jury notice is not easily satisfied, but then concluded as follows:  
[47] However, there has to be a tipping point. That tipping point is reached  
when the intricacy or complexity of the issues raised by an action actually  
impede or undermine the efficacy of the trial process and the confidence that  
the parties can have in the trial’s outcome. In this case, this might arise in  
several ways. There would be a level of factual complexity in recounting or  
describing the evidence of how various costs were allocated to different  
production companies. Mr. Shaw’s discovery evidence suggests that it may  
be necessary to turn to hundreds of different spreadsheets to address those  
allocations.  
[48] The charge to the jury would also be complex; see Collette v. Cartier  
Partners Securities Inc., 2005 BCSC 501 at para. 31.  
[49] It will be difficult to form questions for the jury; see Holland v.  
Hallonquist (1968), 63 W.W.R. 207 (B.C.C.A.) at 219 para. 41; and Collette at  
para. 3.  
[50] There is little doubt that there would be various alternate questions  
posed to the jury with the risks that are attendant to that exercise; see  
Collette at para. 32 and Stephen at para. 19.  
[51] Still further, this is not a case where the primary issues are factual in  
nature. In cases where the dominant or central issues are legal, the  
jurisprudence recognizes that there is a benefit in providing a judge  
somewhat more time for reflection that there is greater need for a mature  
consideration of the matters; see Holland at 219-220, and McDonald v. Inland  
Natural Gas Co. Ltd. (1966), 57 W.W.R. 87 at 96 (B.C.C.A.).  
[85] Similarly, I am of the view that the intricacy and complexity of the issues  
raised by the plaintiffs in this caseparticularly with respect to their copyright claim  
and the apportionment of damages if that claim is made outwill impede and  
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Page 27  
undermine the efficacy of the trial process and the confidence that the parties can  
have in the trial’s outcome if it were to proceed as a jury trial. Assessing the  
plaintiffs’ damages under the Copyright Act would also give rise to a level of factual  
intricacy similar to that in Shaw. Together with the complexity of the liability issues in  
play in this case, this would require a complex jury charge that may be difficult to  
formulate into appropriate questions for the jury. Difficulty framing questions for a  
jury is an indicator of sufficient complexity to warrant striking a jury notice: Rados  
BCSC at para. 34; Rados BCCA at paras. 67.  
[86] In my view, these issues would benefit from the additional time for reflection  
and deliberation that trial by judge alone provides. In this regard, I agree with Chief  
Justice McEachern’s reasoning in Wipfli at 349350, where he succinctly articulated  
the concerns that underpin this inquiry:  
This case cries out for unhurried and thoughtful consideration. There must  
be a weighing of alternatives, and an opportunity to reflect upon these  
alternatives. With deference, I also refer to what I said in Henry v.  
Knickerbocker, B.C.S.C., 12th May 1981 (not yet reported):  
A judge decision this case without a jury would, after hearing  
the evidence and reviewing his notes or a transcript, assess  
and consider all the evidence including the many medical  
reports and the submissions of counsel. He would probably  
draft and re-draft a judgment several times, and he would  
make countless calculations to test and verify the  
reasonableness of his conclusions. Like any conscientious  
jury, he would agonize over his conclusions, but he would do  
so at a leisurely pace and he would not be under pressure of  
time or the personal comfort of himself or others in making the  
kind of calculations which should be made to test the  
reasonableness of his conclusions.”  
[87] In the result, I find that it would be exceptionally difficult for a judge to be able  
to adequately instruct a jury with respect to the intricacies of liability in copyright law  
and the apportionment of damages required under the Act if liability were to be  
found. I am also not satisfied that a jury, once instructed, would be able to retain and  
apply such instructions adequately or have the opportunity given the constraints  
inherent in jury deliberations to give the issues put before them sufficient and  
reasoned consideration. In the circumstances, I am satisfied that the issues raised in  
Henni v. Food Network Canada Inc.  
Page 28  
this case are of sufficient complexity that they cannot conveniently be determined by  
a jury. I therefore find that the jury notice ought to be struck pursuant to Rule 12-  
6(5)(a)(ii).  
Conclusion  
[88] The defendantsapplication is allowed and the jury notice is struck. Costs of  
this application shall be in the cause.  
Hughes J.”  
 
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