Case information

Civil procedure — Class actions — Respondent class actions — Preferable procedure — Whether Court of Appeal erred in holding that class proceeding was not preferable procedure — Costs — Exceptional circumstances — Whether Court of Appeal erred in holding that exceptional circumstances justified an award of costs on class proceeding certification motion — Intellectual property — Copyright — Infringement — Whether Federal Court erred in holding that notices of claimed infringement may not be used to notify class members — Copyright Act, R.S.C. 1985, c. C-42, ss. 41.25, 41.26

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The applicants are related motion picture production companies. The respondent is an Internet subscriber whose IP address was associated with the sharing over the BitTorrent file-sharing protocol of works in which the applicants hold copyright. The applicants wish to certify a respondent class proceeding for copyright infringement and propose the respondent as the class representative. In 2021, the Federal Court of Appeal concluded that the proposed class proceeding disclosed a reasonable cause of action, an identifiable class of two or more persons, and common issues, but could not determine whether a class proceeding was the preferable procedure or whether the respondent was a suitable class representative. The motion was remitted to the Federal Court to determine these issues.

The Federal Court dismissed the certification motion with leave to amend, holding that a class proceeding was the preferable procedure for the claims, but that the respondent was not a suitable class representative because the litigation plan did not provide funding for class counsel and because notices of claimed infringement prepared under the Copyright Act may not be used to communicate with class members for litigation purposes. It further awarded the respondent his costs of the motion. The Federal Court of Appeal held that it was an error to consider deficiencies in the litigation plan when determining the respondent’s suitability as a class representative. However, it also found that the proposed common issues cannot resolve the question of whether the Internet subscribers associated with particular IP addresses actually engaged in, or authorized, infringing conduct. A class proceeding is therefore not the preferable procedure for these claims. The appeal was dismissed with costs.