Court File No.

T-662-16

SIMPLIFIED ACTION

FEDERAL COURT

PROPOSED CLASS PROCEEDING

BETWEEN:

VOLTAGE PICTURES, LLC, COBBLER NEVADA, LLC, PTG NEVADA,

LLC, CLEAR SKIES NEVADA, LLC, GLACIER ENTERTAINMENT S.A.R.L.
OF LUXEMBOURG, GLACIER FILMS 1, LLC, and FATHERS &
DAUGHTERS NEVADA, LLC
Applicants

- and -

ROBERT SALNA, JAMES ROSE, and LORIDANA CERRELLI, proposed

representative Respondents
Respondents

APPLICANTS’ REPLY MEMORANDUM OF FACT AND LAW

(Certification)
A. All Class Members Would Be Internet Account Subscribers -

Either Direct Infringers or Authorizing Infringers

1. Many of the issues raised by the Respondents and Intervener involve

practical issues of identifying Direct Infringers who are not also Internet

Account Subscribers. Of course, many (but not all) of the Internet Account

Subscribers will also be Direct Infringers.

See e.g. Memorandum of Fact and Law of the Proposed

Representative Respondents at paras 41, 61a, 71
[Respondents’ Factum], Responding Record of the
Proposed Representative Respondents [RRPRR], Tab 5.
Memorandum of Fact and Law of the Intervener at para
15 [Intervener’s Factum], Motion Record of Intervener
[MRI], Vol 2, Tab 4.

2. Voltage agrees that there would be issues in identifying Direct Infringers

who are not Internet Account Subscribers — in that it would require a further

factual determination to know who was the Direct Infringer if they are not

identified through a Norwich order as being the relevant account holder at a

particular date and time.

3. In order to clarify Voltage’s position, Voltage agrees that the class

members would only be Direct Infringers or Authorizing Infringers who are also

Internet Account Subscribers (as such terms are defined in Voltage’s

materials). This sets a narrow class definition, limits the common issues, and

avoids a large secondary fact determination.

4. While perhaps not set out as clearly as possible, this was the intended

class definition set out in the Litigation Plan, which, in fact, narrows the class

even further. As stated in the Litigation Plan, the Respondent Class (i.e. of
both Direct Infringers and Authorizing Infringers) is limited to individuals that

receive a “positive response” from their ISP confirming that the Certification

Notice has been sent to the individual. As such, every member of the proposed

class would be an Internet Account Subscriber who can be identified by an ISP.

Those that did not get the notice (i.e. those that the ISP did not confirm received

a notice) would not form part of the Class and would not be subject to legal

proceedings.

See memorandum of Fact and Law of the Applicants

[Applicants’ Factum], Appendix 1 at para c, Motion
Record of the Applicants [MRA], Tab 3.

5. Direct Infringers who are not Internet Account Subscribers would not

form part of the class, and would not be identified in a future Norwich order in

this proceeding.

6. Voltage submits that this issue resolves the vast majority of issues

raised by both the Respondents and the Intervenor.

B. This Class Proceeding is the Opposite of a Settlement Factory

7. The Intervener submitted that Voltage are intending to use this class

proceeding to force “speculative settlements”. They suggest that being named

as a class member is prejudicial and would compel individuals to settle matters.

Intervener’s Factum at paras 54, 60, MRI, Vol 2, Tab 4.

8. While it is odd that a party would not want to encourage settlement of

legitimate legal disputes, in any event, Voltage’s position is that this proceeding
is the exact opposite of a proceeding involving significant numbers of

independent defendants where litigation costs may drive settlements.

9. The proposed Litigation Plan would not allow the Applicants to pursue

any settlements against any member of the Respondent Class unless they opt

out, and are contacted following the hearing on the merits:

a. all of the members of the Respondent Class would remain

anonymous until the conclusion of the hearing on the merits;

b. they would only be identified if the Applicants are successful at

the hearing on the merits and obtain a court order applicable to

each class member;

c. If the Applicants are not successful, then the Class Members

would not be liable for copyright infringement (and for that matter,

it would likely not be infringement against the opted-out members

either).

10. To the extent a proposed class member opts-out, they would be

proceeded against in the usual course, subject to practical issues regarding

litigation costs and the number of individual respondents pursued. In that

event, the individual respondent would have the choice of litigating this matter,

or settling the matter based on their special circumstances and given the

guidance of the Court in the common issues hearing.

Applicants’ Factum, Appendix 1 at para b(vii), MRA, Tab

3.
C. Wording of the Proposed Notice to Class Members

11. The Respondents note that the proposed notice to class members

states that “if you do opt out, you will be subject to court proceedings, however

you will have the opportunity to retain a lawyer and defend the case yourself”.

12. They have a point when they say that this may drive people towards not

opting-out. We therefore proposed that that sentence be revised to read ““if

you do opt out, you may be subject to future court proceedings, however, if so,

you will have the opportunity to retain a lawyer and defend the case yourself.

13. That re-wording should minimize any potential prejudice. The

Applicants do intend on proceeding with the opted-out respondents, but there

are practical limitations on how many individual cases can be effectively

processed at one time.

D. Mechanisms for the Respondent Class to Fund the Defence

14. The Respondents submitted that the Litigation Plan does not address

funding the defence of the proposed class. This is incorrect.

Respondents’ Factum at para 71a, RRPRR, Tab 5.

15. There are several mechanisms that could be used by the Respondent

Class to fund the defence of this Application:

a. the class representatives could request to include in the notices

sent to class members a solicitation of contributions to fund their

defence in the notice, pursuant to Rule 334.32(6). The Applicants

 have already submitted in the Litigation Plan that they would not

oppose a reasonable request for contributions.

Applicants’ Factum, Appendix 1, Litigation Plan

Submission at para 2e, NIRA, Tab 3.

b. as in this motion, the class representatives may rely on an

Intervener, such as CIPPIC. The Respondents have already

relied on CIPPIC’s submissions in this proceeding to assist in

their defence.

See e.g. Respondents’ Factum at para 33, RRPRR, Tab

5.

c. the Respondent Class could bring a motion to this Court seeking

a court-appointed amicus curiae to assist the Court;

See e.g. McLean v. Canada, 2019 FC 1077, para 17 where

an Amicus was ordered in a Federal Court class action
to assist the Court.

d. the Respondent Class could seek an order after the hearing on

the merits for class members to pay part of the defence legal

fees. For example, if the Applicants are successful, an order

would issue on Applicants’ behalf, and a further order could issue

to a class member to pay a certain part of the class

representative’s legal fees.

e. the Respondent Class could make a request to the Class

Proceedings Fund of Ontario or of other provinces to seek

litigation financing;
 f. the Respondent Class could use a crowdfunding platform (such

as Kickstarter or GoFundMe) to fund its defence, which could

also be referenced in the notices to be sent to class members,

but which could also be advertised to the public at large.

16. Note that if the proceeding is not certified, Mr. Salna and his tenants will

be ordinary Respondents, and will have to defend the matter in their own

names. Not certifying the proceeding does not mean that there will be no court

proceeding against any of the Proposed Representative Respondents; instead,

it will proceed as a regular application.

September 19, 2019 AIRD & BERLIS LLP

Barristers and Solicitors
Brookfield Place
181 Bay Street, Suite 1800
Toronto, Canada M5J 2T9

Kenneth R. Clark
Patrick Copeland
Lawrence Veregin

Tel: 416.865.1500
Fax: 416.863.1515

Counsel for the Applicants

TO: THE ADMINISTRATOR

Federal Court
 AND TO: LIPMAN, ZENER & WAXMAN LLP
Barristers and Solicitors
1220 Eglinton Avenue West
Toronto, ON M6C 2E3

Sean N. Zeitz

Tel: 416.789.0652
Fax: 416.789.9015

Counsel for the Respondents

AND TO: SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY

AND PUBLIC INTEREST CLINIC (CIPPIC)
University of Ottawa, Faculty of Law
Common Law Section
57 Louis Pasteur Street
Ottawa, ON K1N6N5

David Fewer
Tamir Israel

Tel: 613.562.5800 ext. 2558

Fax: 613.562.5417

Counsel for Samuelson-Glushko Canadian Internet Policy

and Public Interest Clinic (CIPPIC)

37288888.3