Date: 20211022

Docket: T-513-18

Citation: 2021 FC 1130

Toronto, Ontario, October 22, 2021

PRESENT: The Honourable Madam Justice Furlanetto

SIMPLIFIED ACTION

BETWEEN:

VOLTAGE HOLDINGS, LLC

Plaintiff

and

DOE #1 ET AL. (SEE SCHEDULE 1 FOR LIST

OF DEFENDANTS)

Defendants

and

SAMUELSON-GLUSHKO CANADIAN
INTERNET POLICY
& PUBLIC INTEREST CLINIC

Proposed Intervener

ORDER AND REASONS

[1] This action, brought under the Federal Court’s simplified procedure, is a mass copyright

infringement action in which the Plaintiff, a movie production company, alleges that a mass

group of Defendants who are internet subscribers used the BitTorrent peer-to-peer network to
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unlawfully distribute copies of the Plaintiff’s science-fiction film, Revolt. The Plaintiff filed a

default judgment motion against thirty of the Defendants, seeking statutory damages and costs

from each. Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic [CIPPIC], a

legal clinic based at the University of Ottawa, brings this motion requesting leave to intervene in

the default judgment motion.

[2] CIPPIC describes its core mandate as advocating in the public interest on matters arising

at the intersection of law and technology. It proposes to intervene as a public interest intervener.

CIPPIC asserts that the motion for default judgment has broad reaching implications that will

call into question the legislative balance between user rights and copyright, expand authorization

rights, and run the risk of imposing liability on innocent internet subscribers. It contends that it

has a genuine interest in the proceeding resulting from its “long history of involvement in online

expression, balanced copyright, and the enforcement role played by various Internet

intermediaries with response to user-initiated rights infringement.” If intervention is allowed,

CIPPIC proposes to:

a. ...[provide] an approach to Federal Court Rules 210 and

211 in mass copyright litigation cases that identifies
circumstances and factors for the Court to consider among
others in assessing whether it is “just in all circumstances”
to issue default judgement with a particular emphasis on
proposing safeguards against misuse of the joinder rules in
default proceedings, the need to avoid obtaining
judgements against innocent ISP subscribers, and the
evidentiary steps a plaintiffs must take before properly
seeking default judgment in mass copyright litigation;

b. ...argue that the Plaintiff’s argument (i) fails to identify

primary infringers and substitutes innocent internet
subscribers for those who might actually have engaged in
acts alleged to infringe copyright; (ii) relies upon a theory
of authorization that is not supported by judicial
interpretation of the authorization right and runs contrary to
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choices made by Parliament in updating the Act and

introducing new remedies and procedures including the
notice and notice scheme; (iii) and does not fulfill the
elements of secondary infringement Parliament and the
courts have required to make out liability under the
Copyright Act; and

c. ...argue that the Plaintiff’s motion will establish an

uncontested path from filing multi-defendant John and Jane
Doe claims through third party discovery of Internet
Service Providers through to default judgement and the
award of damages. Others will follow this path...; and

d. ...[provide] factors and circumstances that ought to be

considered in any award of statutory and punitive damages
under the Copyright Act – and cost awards – in the context
of mass copyright litigation.

[3] CIPPIC asserts in the alternative that it could intervene without providing a position on

the merits, although both parties agree that, at least with respect to certain of the arguments

sought to be made (some of those identified in “b” above and those in “d”), the arguments would

be more challenging to make on a theoretical basis.

[4] The Plaintiff is opposed to the intervention, primarily because their motion is a default

motion where there is no anticipated response or position put forward from defendants. The

Plaintiff asserts that by proposing to provide a position on the merits, the intervener seeks to

introduce new issues and provide a defence that is not otherwise pleaded.

[5] For the reasons set out below, I am of the view that the default judgment motion raises

issues of public interest that the Court can address in a more informed way through intervention

by CIPPIC. Accordingly, it is my view that leave should be granted, and the proposed

intervention allowed.
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I. Legal Test on Intervention

[6] Rule 109 of the Federal Courts Rules, SOR/98-106 [Federal Courts Rules] provides the

Court with discretion to grant leave to intervene in a proceeding. Pursuant to subsection 109(2),

the moving party must describe how they wish to participate and how their participation will

assist in the determination of the factual or legal issues relating to the proceeding. I am satisfied

that the Affidavit of Mr. Israel, CIPPIC’s Staff Lawyer, meets this procedural requirement.

[7] Substantively, in considering whether leave should be granted, the following six factors

must be considered (Rothmans, Benson & Hedges Inc v Canada (Attorney General), [1990] 1 FC

90 (CA) at para 3; aff’g [1990] 1 FC 74 (TD) at para 12 [Rothmans]; Sport Maska Inc v Bauer

Hockey Corp, 2016 FCA 44 at paras 39-41 [Sport Maska]):

1) Is the proposed intervener directly affected by the

outcome?

2) Does there exist a justiciable issue and a veritable public

interest?

3) Is there an apparent lack of any other reasonable or

efficient means to submit the question to the Court?

4) Is the position of the proposed intervener adequately

defended by one of the parties to the case?

5) Are the interests of justice better served by allowing the

intervention?

6) Can the court hear and decide the case on its merits without
the proposed intervener?

[8] As noted by the Federal Court of Appeal in Sport Maska at paragraphs 42-43, the criteria

for intervention remains flexible: the primary question is whether the proposed intervention will
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serve the interests of justice. Central to this question is whether the intervener will bring further,

different and valuable insights and perspectives that will assist the Court in determining the

matter (Sport Maska para 40; Canada (Attorney General) v Pictou Landing First Nation, 2014

FCA 21 [Pictou] para 9). The following additional considerations have been addressed when

evaluating this question: whether the moving party has a genuine interest and the necessary

knowledge, skills and resources to dedicate to the matter; whether the matter has assumed public

importance and assumed such a complex dimension that the Court needs to be exposed to

perspectives beyond those offered by the parties; whether the moving party has been involved in

earlier proceedings in the matter; and whether terms can be advanced in the intervention to

advance the objectives of Rule 3 of the Federal Courts Rules and afford procedural justice to the

existing parties (Prophet River First Nation v Canada (Attorney General), 2016 FCA 120 at

para 6).

II. Application of the Legal Test

[9] In this case, Rothmans Factors 1, 3, and 6 can be dealt with readily. CIPPIC is not

directly affected by the litigation, but is proposing to intervene on a public interest basis (Factor

1). There is no other means to raise CIPPIC’s arguments in this proceeding as the motion is for

default judgment (Factor 3). The Court can hear and decide the motion without the proposed

intervention; however, for the reasons set out below, it is my view that in doing so it would miss

out on the valuable perspective that CIPPIC can provide (Factor 6).
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A. Is there a justiciable issue of veritable public interest (Factor 2)

[10] To obtain default judgment, the Plaintiff must lead evidence to establish not only that the

Defendants are in default, but also that the claims of the statement of claim have been made out,

on a balance of probabilities, and that there is an entitlement to the remedies requested (Bell

Canada v L3D Distributing Inc (INL3D), 2021 FC 832 at para 43; Teavana Corp v Teayama Inc,

2014 FC 372). There are accordingly justiciable issues to be determined.

[11] The parties disagree on whether the issues raised by the default motion are of public

interest.

[12] The Plaintiff asserts that because default motions are a summary route to judgment,

premised on there being no defence, by their nature they are not of interest to anyone other than

the parties involved. As such, this is the wrong proceeding for CIPPIC’s input.

[13] CIPPIC’s argument focusses on the substantive issues that must be determined on the

motion and the procedural context in which they have been brought forward. It argues that the

nature of the motion and the issues raised in the action anticipate novel findings that will have

broader application beyond the present proceeding. I agree.

[14] While the Plaintiff’s premise may hold true for many default proceedings, the nature and

scope of the proceeding must be considered for the purpose of assessing whether it may be of

broad interest and application, even if brought as a default judgment motion.

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[15] In this case, the technical area and the nature of this proceeding raises several important

substantive issues for consideration, some of which include novel arguments. Such issues include

whether the appropriate defendants have been identified, whether copyright infringement can be

established and, if so, whether there is justification for statutory damages under the Copyright

Act, RSC, 1985, c C-42 [Copyright Act] and at what level. The fact that these issues will come

forward for adjudication in the context of a default motion raises procedural issues about the

evidentiary limitations to the motion and whether judgment is appropriate in this procedural

context. That these substantive and procedural issues arise in the internet space, in my view,

heightens the level of public interest in the proceeding. I agree with CIPPIC that the issues raised

are of public interest. As such, this second factor favours intervention.

B. Is the position of the intervener adequately provided by one of the parties to the litigation
(Factor 4)

[16] The proceeding at issue is a default motion. As such, there is only one position that will

be put forward by the parties on the motion – that of the Plaintiff. The Plaintiff argues that it

would be highly prejudicial to allow another entity to argue on the merits of the case where the

Defendants have not taken an active role or raised any defence in the proceeding.

[17] CIPPIC asserts that it is not seeking to provide a defence, but rather to raise concerns and

propose safeguards with respect to the application of the mass litigation model in this context,

and with respect to some of the arguments made and remedies sought, from a public interest

perspective. It asserts that to provide meaningful comments, it must address the Plaintiff’s

arguments and evidence and that it will be enhancing the record by doing so.
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[18] As noted in Minister of Citizenship and Immigration v Canadian Council for Refugees,

2021 FCA 13 [Canadian Council for Refugees] at paragraph 27, the issues in an action are

defined by the parties to the action. An intervener has no standing to add new issues or to

commandeer the proceeding.

[19] In this case, CIPPIC does not seek to file any evidence of its own or to conduct any

cross-examination. It only seeks to make legal argument on the issues advanced in the

proceeding. I do not foresee from the description of the proposed arguments any basis for the

contention that the issues on the default motion will be shifted or taken over by the intervention.

To the contrary, the proposed intervention seeks to provide different insights on the approaches

to take to the issues already in play.

[20] Further, I note that the comments made by the Plaintiff on the arguments proposed by

CIPPIC focussed more on the merits of those arguments rather than the issue of whether they

would be of assistance to be heard and considered by the Court.

[21] In my view, where there are important public interest issues at play, as in this case, it is

necessary for the Court to have varied perspectives and arguments raised to ensure that it has the

ability to fully consider the impact of the decision it has to make (Pictou at para 11; Lukacs v

Canada (Transportation Agency), 2014 FCA 292 at paras 16-18). This is more significant in this

default context where the Court would otherwise be limited to the submissions of the Plaintiff

only. Enhancement of the record on this motion would be of assistance to the Court.
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[22] For all of these reasons, the fourth Rothmans Factor favours allowing the intervention.

C. Is it in the interests of justice to allow the proposed intervention (Factor 5)

[23] As stated in Sport Maska at paragraph 43, the interests of justice considers both the

interests of the Court and the interests of the parties. In considering this issue, the Court must

ask whether the proposed intervention will provide submissions that would be helpful to the

Court and which will not detract from the procedural justice to be afforded to the parties.

[24] There is no question that CIPPIC has significant experience and has a history of

providing submissions and assistance to both government and the Court on the legal and factual

context at issue in this action.

[25] CIPPIC has provided expert testimony and submissions to Parliamentary Committees

regarding various aspects of the Copyright Act and legal issues associated with online

environments including, amongst others, submissions to the Departments of Industry Canada and

Heritage Canada on the implementation of the “Notice and Notice” system under the Copyright

Act.

[26] CIPPIC has intervened in a number of proceedings involving mass copyright litigation,

including in procedural motions relating to the discovery of identities of anonymous internet

service provider (ISP) subscribers (BMG v Doe, 2004 FC 488; 2005 FCA 193; Voltage Pictures

LLC v John Doe, 2014 FC 161). In the latter proceeding, the Plaintiff was a party and there was
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no position advanced by the defendants on the motion. CIPPIC argued against making the order

requested by Voltage.

[27] Further, both this Court and the Federal Court of Appeal in Voltage Pictures LLC v

Salna, 2019 FC 1047; rev’d 2021 FCA 176 [Salna] allowed CIPPIC to intervene in a

certification motion involving the same Plaintiff and essentially the same causes of action as this

proceeding – i.e., an allegation of copyright infringement against an alleged BitTorrent user. The

intervention extended to the right to adduce evidence and/or address the merits of the case.

[28] I am satisfied from the mandate of CIPPIC and their involvement in these past

proceedings that CIPPIC has a genuine interest in the issues raised by the pending default motion

and has the necessary knowledge, skills and resources to dedicate to this matter.

[29] The Plaintiff argues that CIPPIC’s intention is to push its own interests and messages,

instead of advancing the position of the Defendants. It asserts that while CIPPIC’s causes may be

important and worthy of attention in the right case, such intervention is not of assistance here

(Canadian Council for Refugees at paras 41-42). I disagree.

[30] In my view, the Court would benefit from the insights of CIPPIC on the issues at play.

The fact that CIPPIC is offering positions grounded in its public interest perspective is consistent

with its proposal to function as a public interest intervener; its position should not be a substitute

for the position of the Defendants, especially on a default motion.

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[31] Further, it is my view that it would be inconsistent for the Court to allow CIPPIC to

intervene in the certification motion in Salna and not to allow intervention on this default

motion. This is particularly so as the default motion will go further and address the Plaintiff’s

request for relief in the context of a mass copyright infringement action involving alleged

BitTorrent users, while Salna dealt with whether or not the claims disclosed a reasonable cause

of action.

[32] With respect to the issue of timing and Rule 3 of the Federal Courts Rules, I do not see

any real prejudice to the Plaintiffs. In my view, the intervention will not impede the just and

expeditious determination of the default motion.

[33] The default motion will be heard in a timely manner at a date agreed to by the parties.

When asked about the timing for the default motion, counsel for the parties indicated that if

intervention were allowed a short adjournment of the November 4, 2021 hearing date to a date

later in November would be preferred to allow some time for written arguments.

[34] On the issue of costs, the Plaintiff argues that the proposed intervention will cause it to

incur costs that it would not otherwise be expected to incur. It argues that the proposed order that

CIPPIC be immune from any award or payment of costs is prejudicial.

[35] As CIPPIC is not functioning as the Defendants’ counsel, I do not consider this proposal

as to costs to be inconsistent from the normal proposal made in an intervention context, provided

that the submissions made are consistent with the nature of this order.
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[36] For all of these reasons, it is my view that Rothmans Factor 5 also favours CIPPIC and it

is in the interests of justice to allow the requested intervention on the terms proposed.
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ORDER IN T-513-18

THIS COURT ORDERS that

1. The motion to intervene is granted on the terms set out herein.

2. Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic

[CIPPIC] shall be hereinafter added to the style of cause as intervener.

3. CIPPIC will take the issues in the Plaintiff’s pending motion for default

judgment as they are and shall not add to them.

4. The Plaintiff shall forthwith serve CIPPIC with electronic copies of its

motion materials on the default judgment motion.

5. CIPPIC shall be permitted to file a Memorandum of Fact and Law of no

more than 20 pages, and serve same upon the Plaintiff by no later than

November 3, 2021.

6. The Memorandum of Fact and Law may address the merits of the

Plaintiff’s submissions insofar as it relates to the objective of providing a

public interest perspective on the pending issues.

7. The Plaintiff shall be permitted to file a responding Memorandum of Fact

and Law of no more than 15 pages by November 15, 2021.

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8. CIPPIC shall be permitted to present oral arguments at the hearing of the

default judgment motion at a length to be determined by the hearings

judge.

9. CIPPIC shall not request or be subject to any order as to costs.

10. The hearing of the default judgment motion currently scheduled for

November 4, 2021 shall be adjourned. Within seven days of the date of

this order, the parties shall submit their joint availability during the week

of November 22 for rescheduling the hearing of the default judgment

motion.

11. CIPPIC shall not be permitted to appeal any decision relating to the

default judgment motion without leave of this Court.

"Angela Furlanetto"
Judge
 FEDERAL COURT

SOLICITORS OF RECORD

DOCKET: T-513-18

STYLE OF CAUSE: VOLTAGE HOLDINGS, LLC v DOE #1 ET AL (SEE

SCHEDULE 1 FOR LIST OF DEFENDANTS) AND
SAMUELSON-GLUSHKO CANADIAN INTERNET
POLICY & PUBLIC INTEREST CLINIC

PLACE OF HEARING: HEARD BY VIDEOCONFERENCE

DATE OF HEARING: OCTOBER 13, 2021

ORDER AND REASONS: FURLANETTO J.

DATED: OCTOBER 22, 2021

APPEARANCES:

Kenneth R. Clark FOR THE PLAINTIFF

Lawrence Veregin

David A. Frewer FOR THE INTERVENER

SOLICITORS OF RECORD:

Aird & Berlis FOR THE PLAINTIFF

Barristers and Solicitors
Toronto, Ontario

Samuelson-Glushko Canadian FOR THE PROPOSED INTERVENER

Internet Policy & Public Interest
Clinic
University of Ottawa
Faculty of Law
Common Law Section
Ottawa, Ontario