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Wiseau case: No need for bazooka when fly swatter will do

Author(s): May Cheng

Jan 11, 2022

The initial decision in Wiseau Studio, LLC et al. v. Harper et al. 2020 ONSC 2504, has been the subject of numerous articles, including more than one written by this author. The original decision followed an eight-day trial in 2020 before Justice Paul Shabas of the Ontario Superior Court of Justice, that rejected Tommy Wiseau’s claim that the film Room Full of Spoons violated his moral rights in the film The Room, while allowing the counterclaim of the defendants for damages caused by the granting of an earlier injunction in the proceedings. 

The case set an interesting precedent for holding that moral rights claims can only succeed if they actually denigrate the work or reputation of the author, to which Justice Shabas opined: “To the extent the documentary portrays Wiseau as someone who made a terrible movie, there is nothing new about that.” The decision would not have come as a surprise to anyone who had seen Wiseau’s film, which was universally panned as “the Citizen Kane of Bad Movies.” The Room Full of Spoons is a Canadian documentary that undertook an examination of the making of the original film and its cult following that, while negative in its assessment, was not found to have been a “tabloid-style exposé” or “hit piece” as alleged by Wiseau.

Wiseau was undeterred by the lower court ruling and not only brought an unsuccessful motion to vary the judgment, but went on to appeal it to the Ontario Court of Appeal, which ended up dismissing the appeal without a hearing. The Court of Appeal had earlier issued an unusual condition that security for costs awarded in the earlier judgment needed to be posted by Wiseau before the appeal would be heard, and the dismissal resulted from the plaintiff’s failure to pay the security into court as required. Nevertheless, the dismissal from the Court of Appeal is a final decision.

That would sadly not be the end of the saga for the Canadian documentary filmmakers.

Intent on pursuing the case further, Wiseau brought a Federal Court action on July 6, 2021, alleging copyright infringement pursuant to s. 41.1(1) of the Copyright Act, RSC 1985, c. C-42, which specifically prohibits the circumvention of technological protection measures that were likely used to obtain the lower quality footage from the original film used in the documentary. It should be noted that the issue had been raised at trial before Justice Shabas but had not been pleaded and there had not been discovery on the issue, so it was not properly before the court. Justice Shabas refused to entertain arguments on the issue in light of the circumstances. This left the matter open for a new case to be brought; however, the issue could still be challenged on the basis that it ought to have been pleaded and raised in the first instance.

Barely five weeks later, Wiseau also commenced another action in the Ontario Superior Court of Justice on Aug. 13, 2021, seeking damages for “fraudulent misrepresentation” in respect of representations allegedly made by the defendants during mediation, at discovery and at various motions during the contentious proceedings. It is difficult to see how such representations could be deemed fraudulent since allegations made during litigation are just that, allegations that need to be proven on a balance of probabilities. Any representations at mediation would also likely be covered by settlement privilege.

In response to the filing of the two new proceedings in Canada by Wiseau, the Harper defendants brought an anti-suit injunction before Justice Sean Dunphy of the Ontario Superior Court of Justice aimed at preventing the plaintiff from pursuing vexatious litigation in two separate courts, seeking to relitigate the case. The plaintiff candidly admitted to the court that it has tried every avenue available to reopen the trial decision and introduce fresh evidence, without success.

In a decision released on Dec. 17, 2021, Justice Dunphy declined to grant the anti-suit injunction “at this stage,” but did not rule out that it could be considered anew should further facts make it advisable (Wiseau Studio LLC v. Harper 2021 ONSC 8324). The court opined that the new actions did not cross the threshold for ruling Wiseau a vexatious litigant yet but did agree to stay the second Ontario Superior Court of Justice action as “clearly an abuse of process.” Justice Dunphy stated that the trial judgment and Court of Appeal decisions are final and binding and cannot be collaterally challenged in a separate proceeding.

The court’s reluctance to grant a more draconian order against Wiseau that would prevent further litigation on the same factual matrix was summed up with the statement of Justice Dunphy that: “A bazooka is not needed where a precision fly swatter will do.” The possible implication being that Wiseau is nothing more than a fly that needs to be swatted again.

While Justice Dunphy grants deference to the Federal Court by refusing to stay the additional case, this leaves to Wiseau another day to relitigate the merits and face questions of res judicata and issue estoppel that will undoubtedly be raised in that forum. Justice Dunphy also issued no order as to costs on the motion for the “anti-suit” injunction, leaving both parties to bear their own costs.

The Wiseau v. Harper saga highlights the difficulties faced by defendants confronted by overly litigious plaintiffs that will not accept final and binding decisions of the court that go against them, even where such rulings are clear and unequivocal. Further, the lack of a costs award, despite the granting of a stay of proceedings in one action ruled an abuse of process, leaves the defendant impoverished by the plaintiff’s vexatious litigation, which will only continue in light of the divided result.

The decision of Justice Dunphy also underscores the high bar to meet to have a party ruled a vexatious litigant. Defendants who are targets of vexatious litigants are left with little recourse even in the face of glaringly obvious abuses. Reform in this area of law is urgently needed particularly in light of the escalating costs and lengthy delays associated with civil litigation. The consequences can be ruinous.

Stay tuned for additional material from this saga in 2022.

This article originally appeared in The Lawyer’s Daily, (https://www.thelawyersdaily.ca), part of LexisNexis Canada Inc.