• Court of Appeal Granted an Appeal of The Federal Court's Decision Allowing Internet Service Provider to Charge a Fee for Disclosure of Suspected Infringer
  • June 6, 2017 | Authors: Jillian Brenner; Adrian J. Howard; Beverley Moore; Chantal Saunders
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Voltage Pictures, LLC v. John Doe, 2017 FCA 97

    The Appellants are movie producers and have launched a proposed "reverse" class action against those they say have been downloading their movies illegally. The Appellants are claiming, amongst other things, declaratory and injunctive relief against the Respondent, whose identity is presently unknown to them. The Appellants had sought information identifying a suspected infringer, the Respondent, John Doe #1, from an internet service provider, Rogers Communications Inc. The Appellants moved for an order requiring the identifying information to be disclosed to them. Rogers was prepared to disclose it, but only if the appellants paid a fee, in the amount of $100 per hour of work plus HST.

    In the decision under appeal, the Federal Court interpreted the legislative regime and, agreed with Rogers (see 2016 FC 881, our summary here). On appeal, the Appellants noted that there are tens of thousands of suspected infringers whose identifying information can now only be had at the same fee. They submitted that this fee and the Court's approval of it, is a multi-million dollar barrier between them and the starting gate for their legal proceedings.

    The Court of Appeal agreed with the Appellants that the Federal Court erred in law in interpreting the legislative regime and the appeal was allowed with costs. After describing and analyzing the legislative regime, the Court of Appeal concluded that an internet service provider cannot charge a fee for the costs of discharging its obligations under subsection 41.26(1). The Court of Appeal found that to allow Rogers to charge a fee for these costs at the point of disclosure would be an end run around the legislative decision that these activities should not be remunerated at this time. The Court of Appeal also noted that the Federal Court did not assess the reasonableness of the fee and should have.