FORM 1 (RULE 3-1 No. Vancouver Registry l?FE?i? isu3319 3133 s1s14s? VANCOUVER AQUARIUM MARINE SCIENCE CENTRE Plaintiffs and GARY CHARBONNEAU, EVOTION FILMS INC. also known as EVOTION INC., JOHN DOE, AND JANE DOE Defendants NOTICE OF CIVIL CLAIM This action has been started by the plaintiff for the relief set out in Part 2 below. If you intend to respond to this action, you or your lawyer must a) ?le a response to civil claim in Form 2 in the above-named registry of this court within the time for response to civil claim described below, and b) serve a copy of the ?led response to civil claim on the plaintiff. If you intend to make a counterclaim, you or your lawyer must a) ?le a response to civil claim in Form 2 and a counterclaim in Form 3 in the above-named registry of this court within the time for response to civil claim described below, and b) serve a copy of the ?led response to civil claim and counterclaim on the plaintiff and on any new parties named in the counterclaim. JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to ?le the response to civil claim within the time for response to civil claim described below. Time for response to civil claim A response to civil claim must be ?led and served on the plaintiff, a) if you were served with the notice of civil claim anywhere in Canada, within 21 days after that service, {00451319;1} ?m751?gz '2 Liu Part 1: l. 2 b) if you were served with the notice of civil claim anywhere in the United States of America, within 35 days after that service, c) if you were served with the notice of civil claim anywhere else, within 49 days after that service, or d) if the time for response to civil claim has been set by order of the court, within that time. CLAIM OF THE PLAINTIFF STATEMENT OF FACTS The Vancouver Aquarium Marine Science Centre is a not for pro?t society registered in British Columbia, and has an address for service in this matter at 2900 595 Burrard Street, Vancouver, British Columbia. The defendant, Gary Charbonneau, is an individual residing in British Columbia, whose occupation is unknown to the plaintiff, but who has an address of 160-170 W. North Vancouver, BC, V7M 3P2, and an email address at evotioninc@gmail.com. The defendant, Evotion Films Inc. also known as Evotion Inc. (?Evotion?), is a company registered in British Columbia with a registered and records of?ce at 304-1200 Lonsdale Avenue, North Vancouver, British Columbia, V7M 3H6. The defendant Charbonneau is the sole director and officer of Evotion. The defendant, Jane Doe has assisted Charbonneau and/or Evotion in committing the causes of action described herein, but her true identity is not known to the plaintiff. The defendant, John Doe has assisted Charbonneau and/or Evotion in committing the causes of action described herein, but his true identity is not known to the plaintiff. The Aquarium operates the Vancouver Aquarium, and is the creator, operator and owner of all images, video, audio, text and other works contained in: a) the website (the ?Aquarium Website?); b) (the ?Aquarium B10 {00451819;1} -3- c) a Youtube channel of Aquarium works (the ?Aquarium Youtube?); (1) an audiovisual work entitled ?Vancouver Aquarium: Cetaceans in Our Care? (the ?Cetaceans Video?) which appears on the Aquarium website and on the Aquarium Youtube channel; and e) the physical site of the Aquarium, located in Vancouver, British Columbia (the ?Aquarium Site?). 7. The Aquarium Website contains the following terms, accepted by anyone using the said website. The defendants accessed and used the Aquarium Website. As such, the terms below are contractual terms as between the plaintiff and defendants: TERMS AND CONDITIONS OF USE Materials on this web site were produced by the Vancouver Aquarium Marine Science Centre (the Aquarium) to provide information about the Aquarium's facility, programs and services and to further the Aquarium's goal of effecting the conservation of aquatic life. Unless otherwise stated, all or any information, text, Video, audio, animation or image ?les on this web site are provided for private or educational use only. All other uses are prohibited without authorization from the Aquarium, including: reproduction; redistribution in any manner; storage in any medium; extraction; and alteration in any respect. Need Permission? Anyone wishing to use the materials from this web site for these or other purposes must obtain prior written approval from the Aquarium. Please contact: Meighan Makarchuk Web Content Manager Vancouver Aquarium webmaster@vanaqua.org 8. Further contractual terms as between the plaintiff and the defendant Evotion and/or the defendant Charbonneau are set forth in a written contract signed by Charbonneau, purportedly on behalf of Evotion, including the following terms: 1. DETAILS OF USE OF PROPERTY: Commencing on April 28, 2015, Producer [de?ned as Evotion Inc.] shall have access to the Property [de?ned as 834 Avison Way, Greater Vancouver, BC. V6G as is determined by Vancouver Aquarium, and such use may continue for a period of 1 hour. {00451819;1} -4- 2. GRANT OF ACCESS: Producer shall have access to the Property as determined by Vancouver Aquarium. Said permission shall include the right of Producer to bring in a camera and all ?lming and recordings shall be produced on the day of the granted interview. Previous or future recordings taken at the Property shall not be permitted or use by the Producer. 7. RIGHTS TO RECORDING: Producer shall have the rights to images and sounds recorded on the Property on the day of April 28, 2015, for use in making, distributing, or exhibiting Film [as de?ned in the document]. Producer may not re- sell, remarket or transfer any parts of the recordings to a third?party for use at any time other than as part of the ?lm. The publication by the defendants of the Offending Video on Vimeo is currently located at 148035941 9. The defendants have produced a video entitled Vancouver Aquarium Uncovered (the ?Offending Video?), and have published the said video in screenings within British Columbia as well as to the world on and on a website registered by Charbonneau and operated by the defendants, (the ?Defendants? Website?) 10. The publication by the defendants of the Offending Video on Youtube is currently located at 11. In the Offending Video, the defendants used, included and re-published, without authorization from the plaintiff, the plaintiff?s copyrighted works in violation of the Copyright Act. These violations were aggravated by the defendants? publishing of the Offending Video to the world on the defendants? website, and by the defendants transferring and/or remarketing the video to Vimeo and Youtube for ?lrther publication to the world. The particulars of the plaintiffs copyrighted works which were illegally used in the Offending Video include but are not limited to the particulars set forth in Schedule to this Notice of Civil Claim. 12. The defendants? violations of the plaintiff?s copyright continue as of the date of this Notice of Civil Claim, and will continue unless restrained and enjoined by this Court. 13. The defendants Charbonneau and/or Evotion have violated the contractual terms described herein by publishing images taken on the plaintiffs property for commercial purposes, including but not limited to all compensation received for screenings and other {00451819;l} -5- publication of the Offending Video, and money raised by Charbonneau through advertising on the Defendants? Website, fundraising requests on the Defendants? Website and in further and elsewhere, including an Indiegogo monetary campaign at breach by transferring and/or remarketing the video, including the images covered by the contract to third parties for re-publication, namely Youtube and Vimeo. Damages and Iniunctive Relief 14. 15. 16. 17. Part 2: 1. The breaches of contract described herein have caused and continue to cause damages to the plaintiff, and as such the plaintiff claims general damages and special damages. The violations of copyright described herein are numerous and ongoing, in respect of which the plaintiff has suffered special, general and statutory damages. The defendants have each been guilty of reprehensible, insulting, high-handed, spiteful, malicious and oppressive conduct, and such conduct by the defendants justi?es the court in imposing a substantial penalty of exemplary damages on the defendants, imposing an award of aggravated damages. There is a serious risk that the defendants will renew or continue its violations described herein unless the defendants are restrained from doing so by an Order of this Honourable Court. RELIEF SOUGHT General and special damages. Aggravated and punitive damages. Special damages. An interlocutory and permanent injunction restraining the publication of the Offending Video on Vimeo and Youtube including the locations described herein, at and any other publication of the Offending {00451819;1} -6- Video, and requiring the removal of the Offending Video from Youtube, Vimeo, and any other public location. 5. Interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79. 6. Such further and other relief as this Honourable Court may deem just. 7. Costs. Part 3: LEGAL BASIS 1. Common law of contract; and 2. Copyright Act of Canada and jurisprudence. Plaintiffs address for service: Owen Bird Law Corporation PO. Box 49130 Three Bentall Centre 2900-595 Burrard Street Vancouver, BC V7X 115 (Attention: Daniel W. Burnett, Q.C.) Fax number address for service (if any): (604) 632-4433 E-mail address for service (if any): dburnett@owenbird.com Place of trial: Vancouver, BC The address of the registry is: Law Courts, 800 Smithe Street, Van BC V6Z 2E1 DatezFebruary 15, 2016 Signature of lawyer for plaintiffs Daniel W. Burnett, Q.C. {00451819;1} -7- Rule 7-1 (1) of the Supreme Court Civil Rules states: (1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period, prepare a list of documents in Form 22 that lists all documents that are or have been in the party?s possession or control and that could, if available, be used by any party at trial to prove or disprove a material fact, and (ii) all other documents to which the party intends to refer at trial, and serve the list on all parties of record. {00451819;1} APPENDIX Part 1: CONCISE SUMMARY OF NATURE OF CLAIM: Breach of copyright and breach of contract. Part 2: THIS CLAIM ARISES FROM THE FOLLOWING: A personal injury arising out of: a motor vehicle accident medical malpractice another cause A dispute concerning: contaminated sites construction defects real property (real estate) personal property the provision of goods or services or other general commercial matters investment losses the lending of money an employment relationship a will or other issues concerning the probate of an estate a matter not listed here Part 3: THIS CLAIM INVOLVES: a class action maritime law aboriginal law constitutional law con?ict of laws none of the above do not know {00451819;l} Part 4: CopyrightAct, R.S.C. 1985, c. C-42. {00451819;l} SCHEDULE "Vancouver Aquarium Uncovered? unauthorized and illegal uses by Defendants of Plaintiff's copyrighted images and video Time Stamp Aquarium Images or Footage Used Source 0:21 Photo of whale at Aquarium Aquarium Website and Aquarium Blog 0:28 Photo of Chester Aquarium Blog 1:01 Cetaceans in our Care audio/video footage Cetaceans Video, Aquarium Website and Aquarium Youtube 3:32 Cetaceans in our Care audio/video footage Cetaceans Video Aquarium Website and Aquarium Youtube 3:42 Photos of rescued animals Aquarium Website and Aquarium Blog 24:38 Belugas swimming in habitat Aquarium Property 26:35 Students interviews near beluga habitat Aquarium Site 33:02 Audio/video footage of dolphin show Aquarium Site 36:55 Photo of dolphin Aquarium Website 49:35 Audio/video footage of children at beluga Aquarium Site habitat 50:39 Audio/video footage of Qila swimming for two Aquarium Site minutes 57:48 Photo of rescue centre Aquarium Blog 57:55 Photo of beluga whale with staff Aquarium Website 57:56 Photo of dolphin Aquarium Website 1:00 Photo of Helen swimming in habitat Aquarium Site {00451535;1}