Cinar Corporation v Robinson: Substantial Protection for Substantial Infringement – Part II

Part II of this two part article concerns damages and the use of expert testimony, alongside the implications arising from the case as a whole. Part I describes the factual background and trial history of the case, also delving into the ruling of the Court with regard to substantial infringement.

SCC Analysis (Continued)

Expert Testimony

The Appellant’s argued that the trial judge had erred due to his acceptance of inadmissible expert evidence. According to Cinar Corp, “the question of whether a substantial part has been copied must be assessed from the perspective of the lay person in the intended audience for the works at issue” (Cinar Corp, para 50). Consequently, the “expert” evidence should have been deemed inadmissible as it was not necessary for determining substantial infringement given that the target audience was not an “expert” within the field of children’s stories, but children themselves.

However, the SCC held that in certain cases it may be necessary to “call upon an expert to place the trial judge in the shoes of ‘someone reasonably versed in the relevant art or technology'” (para 51). In the case of Robinson’s Curiosity, a rigid application of the “lay person in the intended audience” standard would result in an evaluation as to whether or not the copied features would be apparent to a child. This application would unduly restrict the capacity of the trial judge to apply the facts to the test for substantial infringement, thereby rendering the test unworkable.

Concluding that the testimony was crucial in distilling the intelligible similarities between the works, the SCC held that the admission of expert evidence by the trial judge was appropriate.


The SCC considered a number of issues regarding damages, including the proper approach to harness when awarding punitive damages for copyright infringement. The trial judge based his calculation of punitive damages on the fraudulent schemes and dishonest behaviour persistently demonstrated by the Appellants, holding that they had treated Robinson with “callous disregard” (para 110).

Justice McLachlan found that the Quebec Charter of Human Rights and Freedoms, RSQ, c C-12 justified an award for punitive damages to Robinson given the intentional and calculated nature of the Appellant’s infringement. However, “punitive damages must be awarded with restraint” (para 138). Only when the outcome of a defendant’s conduct is highly egregious will an award approaching 1 million dollars be appropriate.

The SCC found that while the trial judge had surpassed the warranted amount of punitive damages to Robinson, the Court of Appeal had gone too far in its subsequent reduction. The Court ultimately settled on an amount of 500 thousand dollars, holding that this amount “reaches an appropriate balance between the overarching principle of restraint that governs these damages, on the one hand, and the need to deter conduct of this gravity, on the other” (para 141).


The effects of the ruling in Cinar Corp can be broken down into two categories: legal and social.


Commentators such as Barry Sookman have suggested that Cinar Corp stands as “a goldmine – a treasure trove – of important copyright holdings by the Supreme Court” (Sookman). First and foremost, it is clear that the SCC refuses to adopt the abstraction filtration test from Altai, perhaps out of a fear that allowing this test to operate within certain contexts will cause the Court to “miss the forest for the trees” (Tarantino). However, it is not entirely clear that engaging in the “holistic cumulative comparison” approach established in Cinar Corp differs in any truly significant manner from the abstraction filtration test.

As outlined by Bob Tarantino in reaction to the ruling, the SCC rejects the application of the Altai test, then “spends paragraphs 38-47 of their own decision dissecting Robinson’s work into its component parts and comparing the features piecemeal” (Tarantino). Also, Justice McLachlan stated clearly that the Altai test “might be useful in deciding whether a substantial part of some works, for example computer programs, has been copied” (Cinar Corp, para 35). Therefore, the test has not been ruled out moving forward.

It is difficult to argue with the notion that Robinson’s work was, in a holistic and cumulative sense, copied. However, certain individual paragraphs of the ruling appear to provide strong support for the protection of individual components of a particular work, providing ammunition for copyright owners to add to their arsenal moving forward. For example, the Court holds that “the development of a group of characters that have specific personality traits and whose interactions hinge on those personalities can require an exercise of skill and judgment sufficient to satisfy the Copyright Act‘s originality criterion” (Cinar Corp, para 46).

Admittedly, the Court states that such characters “can” require protection, not that they invariably “do” deserve such protection. Regardless, it is difficult to conceive of a situation where interactions between characters would not hinge on their respective personality traits. Therefore, this sentence appears to demonstrate quite clearly that characters developed for a specific purpose within the context of an author’s work are likely deserving of full copyright protection.

Other aspects of Robinson’s work which were deemed to have been infringed include the work’s “overall architecture” alongside “the ‘distinct visual appearance’ of the characters and the ‘particular visual elements of the setting'” (Tarantino). It remains to be seen whether providing protection to such seemingly broad aspects of Robinson’s work will overextend copyright, inhibiting the capacity of future creators to engage in the development of similar works.


At a more basic level, it is significant that Robinson was forced to engage in a long and drawn out legal battle with the Cinar Appellants dating back to the mid-1990s. While the compensation awarded to Robinson might seem generous at first glance, Robinson currently carries a debt load of at least 2.5 million dollars in legal fees alone. Worse still, his psychological condition has been detrimentally impacted by the monopolization of this dispute over his life. Engaging in legal battles with corporate giants can be difficult to contemplate much less execute, and the reality is that this case reflects the inadequacies of access in Canada’s legal system.

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