This Precedent-Setting Cartoon is Back at it Again
This blog post reviews the decision of Desputeaux v. Éditions Chouette (1987) inc, 2018 QCCS 5079
The creators of a small cartoon boy named Caillou could probably benefit from some of the lessons they impart through the children’s stories they authored. Otherwise they might literally take a page from their own books.
Caillou is a children’s animated character and star of the educational television and book series of the same name, which follows the titular character as he learns important lessons about growing up, like the importance of sharing and how to let go of grudges.
Co-authors Hélène Desputeaux and Christine L’Heureux, the self-proclaimed “mothers” of Caillou, have been disputing each other’s co-authorship for the majority of Caillou’s roughly thirty-year life. Desputeaux illustrated the Caillou character, while L’Heureux wrote the text of early Caillou books. L’Heureux is also the editor and founder of Les Éditions Chouette (1987) inc. (“Chouette”), the publishing house which for years has held the economic rights to the Caillou series.
In 2003, the authors gained notoriety in the legal areas of commercial arbitration and intellectual property when Desputeaux sought to annul an arbitral decision that declared L’Heureux a co-author of the Caillou works. This dispute escalated to the Supreme Court of Canada, which, in a judgment by Lebel J., upheld the arbitral award and thus solidified the status of Desputeaux and L’Heureux as co-authors and owners of the moral rights in Caillou.
Two years later, the parties found themselves in court once again. The parties managed to reach a settlement agreement with respect to this new litigation, which the Superior Court ultimately homologated. The 2005 settlement agreement set out the distribution of rights as between the parties to the Caillou works, including the following relevant text:
Hélène Desputeaux reprend les textes et les illustrations qu’elle a conçus en vertu de ses diverses ententes […]. Christine L’Heureux et/ou Chouette ne prétendent à aucun droit d’aucune façon sur les textes et illustrations de Hélène Desputeaux, titulaire unique des droits sur ses textes et illustrations, sous réserve de ce qui suit immédiatement quant à la possibilité pour Hélène Desputeaux de publier ses textes et illustrations…
The authors’ play date with the courts did not end there. The text of the 2005 settlement agreement, reproduced in part above, was front and center when Desputeaux later applied for a judicial declaration to the effect that L’Heureux had no claim to co-authorship of Caillou following the 2005 settlement agreement. On November 26, 2018, Barin J. rendered a judgment that dismissed this application.
Desputeaux wanted the Court to declare that the 2005 settlement agreement was definitive, that it prevailed over the arbitral decision and that its terms precluded L’Heureux from claiming moral rights in the works or to be their co-author.
Barin J. considered whether the Court could exercise its discretionary power to proceed to an analysis of Desputeaux’s application for judicial declaration concerning the meaning of the settlement agreement. Because the settlement agreement had been homologated, it had become a judgment of the Superior Court, such that the application essentially sought the judicial interpretation of a judgment.
The jurisprudence clearly establishes that the declaratory recourse cannot apply to the Court’s judgments given that doing so would effectively permit a disguised appeal of the judgment, undermining the principles of finality and irrevocability of judgments.
However, Barin J. reasoned, homologation is not an ordinary judgment of the Court, especially when it is sought jointly by the parties. Homologation is the approbation by the Court of what is still fundamentally an agreement between the parties.
Homologation confers the juridical act with the executory force that attaches to a judgment of the court. However, in homologating a transaction, the Court does not validate or approve the merits of the act between the parties or purge the transaction of its defects.
It follows that a request for judicial declaration on a homologated transaction does not constitute an indirect attempt to appeal a judicial decision.
Having decided that judicial declaration was an appropriate procedural vehicle in the case at hand, Barin J. turned to the threshold issue of whether the application presented a “genuine problem” to be resolved by a declaratory judgment, per the text of art. 142 CCP.
Barin J. defined the question of whether there was a “genuine problem” as the question of whether the terms of the settlement agreement warranted contractual interpretation by the Court: in other words, was there sufficient ambiguity in the terms of the settlement agreement to warrant the intervention of the Court in the case at hand?
Concluding that there was no “genuine problem” for resolution, Barin J. determined that there was no reasonable doubt as to the meaning of the terms of the settlement agreement, which clearly declared the will of the parties as to the exploitation of the economic rights or droits d’auteur of the Cailloux character, to the exclusion of moral rights.
Accordingly, there was no need for judicial interpretation of the terms of the agreement and thus no “genuine problem” to be resolved by a judicial declaration.
It is not lost on the reader that, in reaching the conclusion that no judicial declaration is warranted, the Court nonetheless conducts all the analyses and makes the findings that it would otherwise make for a judicial declaration, begging the question of whether it is a meaningful distinction to stop the analysis at the stage of a “genuine problem”. Barin J. cites Baudouin and Jobin for the acknowledgment that the role of the judge in such cases is paradoxical because it requires the court to interpret the contract a first time to determine whether the contract warrants contractual interpretation.
The latest chapter of Caillou’s saga has left jurists with something to think about. However, the biggest question remains whether the story is definitively complete. Only time will tell.
 Desputeaux v. Éditions Chouette (1987) inc., 2003 SCC 17