Voltage Pictures, LLC v. Salna

Voltage Pictures, LLC v. Salna
Court (s) Database
Federal Court Decisions
Date
2019-11-12
Neutral citation
2019 FC 1412
File numbers
T-662-16
Notes
Digest
Decision Content
Date: 20191112
Docket: T-662-16
Citation: 2019 FC 1412
Ottawa, Ontario, November 12, 2019
PRESENT: Mr. Justice Boswell
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 LOREDANA CERILLI, PROPOSED REPRESENTATIVE RESPONDENTS ON BEHALF OF A CLASS OF RESPONDENTS
Respondents
and
SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND
PUBLIC INTEREST CLINIC
Intervener
ORDER AND REASONS
Table of Contents
Sections
Paragraphs
I. Background
[6] – [18]
II. The Evidence
[19] – [21]
Voltage’s Evidence
[22] – [23]
(1) The Macek Affidavit
[24] – [30]
The Respondent’s Evidence
blank
(1) The Salna Affidavits
[31] – [34]
(2) The Rose Affidavit
[35] – [36]
(3) The Cerilli Affidavit
[37] – [39]
The Intervener’s Evidence
blank
(1) The Lethbridge Affidavit
[40] – [42]
(2) The Kwan Affidavit
[43]
III. Analysis
blank
Overview
[44] – [49]
General Principles Governing Class Proceedings
[50] – [51]
Reverse Class Proceedings
[52] – [59]
Test for Certification
[60] – [61]
(1) Do the Pleadings Disclose a Reasonable Cause of Action?
[62] – [73]
(2) The Pleadings Do Not Disclose a Reasonable Cause of Action
[74] – [81]
(3) Standard of Proof
[82] – [83]
(4) Is there an Identifiable Class?
[84] – [85]
(a) Voltage’s Submissions
[86] – [89]
(b) Respondents’ Submissions
[90] – [97]
(c) Intervener’s Submissions
[98]
(d) Analysis
[99] – [109]
(5) Are there Common Questions?
[110] – [125]
(6) Is a Class Proceeding a Preferable Procedure?
[126] – [143]
(7) A Class Proceeding is not a Preferable Procedure
[144] – [151]
(8) Is there a Suitable Representative Respondent?
[152] – [155]
IV. Conclusion
[156] – [164]
Costs
[165] – [168]
[1] The applicants ˗˗ namely 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 [collectively, Voltage] ˗˗ are film production companies who allege that their copyrights in several films have been infringed online. They claim that the respondents, and others like them, have engaged in illegal uploading and downloading of Voltage’s films using peer-to-peer networks.
[2] Voltage has brought a motion for an order to certify its underlying application as a respondent class proceeding (a so-called “reverse class application”) under Rules 334.14(2), 334.14(3) and 334.16 of the Federal Courts Rules, SOR/98-106, and on terms and conditions under Rule 334.17. According to Voltage, the grounds for this motion are threefold: (i) the amended notice of application discloses a reasonable cause of action; (ii) there is an identifiable class of two or more respondent persons; and (iii) the claims of the class members raise common issues of fact or law.
[3] The proposed representative respondents ˗˗ namely, Robert Salna, James Rose, and Loredana Cerilli (collectively, the respondents) ˗˗ say Voltage’s proposed class application is not suitable for certification. According to them, if certified, the proposed reverse class proceeding will be inefficient, unfair, and unmanageable. The intervener, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic [CIPPIC], also says the proposed reverse class proceeding should not be certified.
[4] Part 5.1 of the Federal Courts Rules contains the Rules applicable to a class proceeding. Voltage desires to have this application certified as a class proceeding to facilitate enforcement of the copyrights in its films. Should this application be certified as a class proceeding? And if so, what form of order should the Court issue under Rule 334.17?
[5] For the reasons that follow, Voltage’s amended motion for certification is dismissed.
I. Background
[6] It is unnecessary, for the purpose of these reasons, to summarize the rather lengthy procedural history of this proceeding, which has already been to the Supreme Court of Canada once. Suffice it to say, this history can be found in the following decisions: Voltage Pictures, LLC v Doe, 2016 FC 681; Voltage Pictures, LLC v John Doe, 2016 FC 881; Voltage Pictures, LLC v John Doe, 2017 FCA 97; Voltage Pictures, LLC v. Salna, 2017 FC 130; Voltage Pictures, LLC v Salna, 2017 FCA 221; Rogers Communications Inc. v Voltage Pictures, LLC, 2018 SCC 38 [Rogers]; and Voltage Pictures, LLC v Salna, 2019 FC 1047 (presently on appeal to the Federal Court of Appeal).
[7] In 2015, Voltage used a custom, forensic software product to identify online copyright infringements of its films through peer-to-peer networks using BitTorrent, a communication protocol for file sharing. A person who wishes to share a computer file with others saves that file in a computer folder. The BitTorrent software then offers that file for download to anyone who is using compatible BitTorrent software and who requests that particular file.
[8] Voltage alleges that the respondents committed three unlawful acts: (i) making a film available for download by means of a BitTorrent network offering the file for uploading, or actually uploading a film; (ii) advertising by way of the BitTorrent protocol that a film is available for download; and (iii) failing to take reasonable steps to ensure that the first and second unlawful acts did not take place in respect of an internet account controlled by an Internet Account Subscriber, and by doing so authorized such unlawful acts. Voltage defines an “Internet Account Subscriber” or “internet subscriber” as a person who is contractually obligated to an internet service provider [ISP] to pay for internet services.
[9] Initially, Voltage sought to describe the class of respondents as being all natural persons residing in Canada who Voltage defines as either “Direct Infringers” or “Authorizing Infringers”, or both. The respondents, as a proposed class, would fall into one or both of these categories of infringer. A Direct Infringer includes a person who has performed the first or second of the unlawful acts noted above, or who has unlawfully copied a film. An Authorizing Infringer includes a person, such as an internet subscriber, who has performed the third unlawful act noted above, or who has authorized an unlawful copy of a film.
[10] At the hearing of this motion and in its reply, Voltage clarified that the proposed class comprises Direct Infringers or Authorizing Infringers who are also internet account subscribers. In other words, every member of the proposed respondent class would be an internet account subscriber who an ISP identifies by virtue of the notice-and-notice regime or a Norwich order. Direct Infringers who are not internet account subscribers would not be part of the proposed class.
[11] The proposed class respondents would consist of those individuals whose internet accounts had been detected by Voltage’s forensic software as offering to upload its films during a prior six-month period. Voltage chose six months because, under paragraph 41.26(1) (b) of the Copyright Act, RSC 1985, c C-42, an ISP is required to retain records enabling identification of an internet account holder for six months following the day on which the account holder received notice of an alleged infringement.
[12] In 2015, Voltage identified internet protocol [IP] address 174.112.37.227 as offering for upload five of its films at various times. These films are:
Blank
Title
Owner
1.
The Cobbler
Cobbler Nevada, LLC
2.
Pay the Ghost
PTG Nevada, LLC
3.
Good Kill
Clear Skies Nevada, LLC
4.
Fathers and Daughters
Fathers & Daughters Nevada, LLC
5.
American Heist
Glacier Films 1, LLC and Glacier Entertainment S.A.R.L. of Luxembourg
[13] Voltage then proceeded to obtain a Norwich order, which compelled Rogers Communications Inc. to disclose the identity of the subscriber with this IP address. The respondent Robert Salna was identified as the subscriber. Voltage says it chose this IP address from thousands of possible choices because the frequent samples of this address ensure reliability. Mr. Salna, in turn, claimed the tenants in his rental property performed the alleged unlawful activities. He identified the other two proposed representative respondents, James Rose and Loredana Cerilli, as the tenants who had access to his internet account during the relevant time.
[14] The respondents deny having committed the unlawful acts Voltage alleges. They claim to have no personal knowledge of anyone using Mr. Salna’s internet connection to download Voltage’s films. They do not know if the internet connection has been compromised by other users, including family members, guests, and internet hackers.
[15] Mr. Salna provides internet access as part of the tenancies at his rental property in Richmond Hill, Ontario. In his capacity as a landlord, he says he never controlled or monitored his tenants’ internet usage; and hence, he claims he does not know the nature of the online activities they engage in. Although the internet account is in his name, Mr. Salna denies having sufficient control over the use of this account and the associated internet devices used to access the internet.
[16] The respondents say they have no interest in participating in this reverse class proceeding. Given the choice, they would opt-out of this proceeding because they do not identify themselves as being part of the proposed class and have no incentive to voluntarily expend money on legal fees, and divert time and attention to defend Voltage’s application.
[17] According to CIPPIC, Voltage admits that it does not know who uploaded the films or whether the respondents, or some other unknown third party, made the films available for upload. CIPPIC notes that, although ISPs assign IP addresses to devices on their networks, the assignment is subject to change. While a public facing IP is unique, it is not tied to any one device or individual. In CIPPIC’s view, Voltage’s only affiant, Mr. Benjamin Perino, admitted during cross-examination that an IP address cannot be associated with a particular individual as opposed to equipment such as an internet router. Mr. Perino further admitted that more evidence would be required to identify an individual who carries out a particular internet activity associated with an IP address.
[18] According to CIPPIC, in certain circumstances it may be possible to trace traffic or behavior associated with an IP address to a particular individual, but it is not possible to impute copyright infringement by that individual. Associating an IP address with a particular internet activity does not identify the individual responsible for that activity. Such a determination requires examination of the actual wireless devices using an IP address at the relevant time.
II. The Evidence
[19] On a motion for certification, an applicant is required to file and serve (i) a notice of motion for certification of a proceeding as a class proceeding, and (ii) an affidavit in support of the motion, at least 14 days before the day set out in the notice for the hearing of the motion (Rule 334.15(1)). A proposed representative respondent is not required to file an affidavit under Rule 334.15(4) (Tippett v Canada, 2019 FC 869 at para 29 [Tippett]), but may do so at least five days before the hearing of the motion.
[20] Rule 334.15(5) prescribes the contents of the affidavit evidence. It stipulates that a person filing an affidavit on a motion for certification must set out:
(a) the material facts on which the person intends to rely at the hearing of the motion;
(b) that the person knows of no fact material to the motion that has not been disclosed in the person’s affidavit; and
(c) to the best of the person’s knowledge, the number of members in the proposed class.
[21] Rule 81(1) permits an affidavit filed on a motion to provide evidence that is not within the deponent’s personal knowledge. This Rule does require, however, a statement as to the deponent’s belief in the evidence (Tippett at para 19). The Supreme Court of Nova Scotia in Sweetland v Glaxosmithkline Inc, 2014 NSSC 216, stated the following about hearsay evidence on a certification motion:
[13] A certification motion in a class proceeding is considered to be procedural and, therefore, hearsay evidence is permissible provided the deponent establishes the source and the witness’ belief of the information.
[14] The evidentiary onus on plaintiffs seeking certification of a class proceeding is not high. It is sufficient that they show “some basis in fact” for each of the certification requirements. Indeed, courts on certification motions are not expected to resolve conflicts in the evidence or engage in assessments of evidentiary weight.
[15] The low threshold of proof required on a certification motion should not be equated with a relaxation of the requirements for admissibility of evidence. A certification motion, like any motion, can only be decided on evidence that is properly before the court. The motion record must comply with the rules of evidence. For procedural motions this includes hearsay, provided the source is identified and the witness is able to establish their belief in the information. These requirements allow the court to assess the credibility and reliability of the hearsay statements being offered.
A. Voltage’s Evidence
[22] Voltage relies on evidence filed in the motion that resulted in a Norwich order identifying Mr. Salna as a proposed class representative. This evidence included the affidavit of Daniel Macek; he was a systems administrator at Maverickeye UG when he affirmed his affidavit in May 2016.
[23] Voltage also relies on the affidavit of Benjamin Perino dated June 3, 2019. Mr. Perino is the former chief executive officer and a senior developer at GuardaLey Ltd., a company that provides a data collection system to track and identify IP addresses using the BitTorrent protocol. GuardaLey licences this system to Maverickeye. In his affidavit, Mr. Perino agrees with the contents of Mr. Macek’s affidavit and he adopts that affidavit as his own evidence with some minor modifications since he did not conduct the IP address searches.
(1) The Macek Affidavit
[24] In his affidavit, Mr. Macek details his knowledge and experience monitoring peer-to-peer internet networks to identify instances of copyright infringements of Voltage’s film. He explains the process by which peer-to-peer networks distribute copyrighted works through the BitTorrent protocol, and describes the method he used to identify the IP address that was subsequently disclosed as that of Mr. Salna.
[25] According to Mr. Macek, BitTorrent is a popular peer-to-peer file sharing protocol, which enables the decentralized and simultaneous distribution of computer files over the internet. It does so by breaking a file into numerous small data packets, allowing internet subscribers to download data packets of copyrighted content from various sources while simultaneously uploading that content for download by others. Each data packet is identifiable by a unique “hash” number, which is created using a mathematical algorithm. Ultimately, an entire computer file is obtained by downloading all the required packets.
[26] Mr. Macek explains that an IP address is a unique numerical label assigned to every device connected to the internet. One of the core functions of an IP address is to allow data sent over the internet to be received by the intended recipient device. An ISP allocates an IP address to devices connected to its networks. ISPs are assigned blocks or ranges of IP addresses that can be found in publicly available databases on the internet.
[27] Mr. Macek states that it is possible to determine which ISP has been allocated a particular IP address at a particular date and time. Only an ISP, however, can correlate an IP address to the identity of a customer. He also states that, to his knowledge, this is the only method by which a customer can be reliably identified. He notes that sometimes an IP address is allocated to a customer for a long period of time. More frequently though, IP addresses change and are dynamically allocated by the ISP to a customer.
[28] According to Mr. Macek, an ISP can allocate an IP address to a WiFi router, a device that can connect to a number of other devices such as computers, telephones, and tablets, each of which could be used simultaneously by different individuals. Consequently, an IP address will not necessarily correspond to the internet activities of only one subscriber but may correspond to other individuals connecting to the router.
[29] Mr. Macek used forensic software specifically made to track peer-to-peer transfers of computer files. Given that the BitTorrent protocol is an open and shared network, he says it was simple to identify the IP address downloading a specific film. Mr. Macek collected three types of identifying information about the users offering to upload Voltage’s films: (i) the IP address assigned by an ISP to an uploader at the time of the scan (after a software-generated pause to ensure the IP address was reliable); (ii) the date and time when a film was made available for upload by the uploader in the form of a computer file; and (iii) the file’s metadata, including the name and size of the computer file containing the film, as well as the BitTorrent hash number identifying the particular version of the film.
[30] In reviewing the file data, Mr. Macek identified IP address 174.112.37.227 as offering all five of Voltage’s films for upload at various times. He states that he traced this IP address through an “ARIN” network search to Rogers Cable Communications Inc. A schedule to Mr. Macek’s affidavit shows the file data collected on this IP address, including the times and dates on which the data was collected.
B. The Respondent’s Evidence
(1) The Salna Affidavits
[31] Mr. Salna filed his first affidavit in connection with his motion for security for costs in 2017. Mr. Salna speaks to his lack of control, or knowledge, about his tenants alleged infringing activities. His second affidavit dated June 7, 2019 attaches the security for costs order and discusses opting out of the proposed class proceeding.
[32] In both affidavits, Mr. Salna expresses a lack of interest or desire in being a respondent in this proceeding. He claims not to identify as part of the class proposed by Voltage. He does not want to spend legal fees, offer his time, or face repercussions at trial, and would like to opt-out and “simply remain on the side-lines” if he has the choice.
[33] In his first affidavit, Mr. Salna acknowledges the possibility that his current or previous tenants may have infringed Voltage’s alleged copyrights, or that the impugned IP address may have been hijacked by another internet user. Mr. Salna claims he does not control or monitor his tenants’ internet usage. He also claims he does not have sufficient control over his tenants’ internet use or devices, that they have full control, and that he could not have known whether they or others conducted activities prohibited by the Copyright Act. He acknowledges that the internet account is registered to his name.
[34] Mr. Salna denies he has infringed Voltage’s copyrights as alleged or at all.
(2) The Rose Affidavit
[35] James Rose rents one of Mr. Salna’s apartments. In his affidavit dated June 10, 2019, Mr. Rose claims he has never seen Voltage’s films, and that the last time he used any BitTorrent network was in 2014, before any of the films were released. He says he has never engaged in any unlawful acts as alleged by Voltage.
[36] Mr. Rose acknowledges that he has hosted overnight guests who have used the internet access in his apartment and they may have infringed Voltage’s copyrights. He says, however, he did not witness any such infringement taking place. Mr. Rose asks that he be given the choice to opt-out of this proceeding as he is not part of any class proposed by Voltage.
(3) The Cerilli Affidavit
[37] Loredana Cerilli rented one of Mr. Salna’s apartments for approximately five years, until August 2017. In her affidavit dated June 10, 2019, Ms. Cerilli states she and her children used the internet provided by Mr. Salna for the first year they lived at his apartment, but she switched to her own ISP in or around 2012 because Mr. Salna’s ISP service was slow.
[38] Ms. Cerilli claims she has never seen any of Voltage’s films, nor has she ever used a BitTorrent network. She says she never witnessed her children, their friends, or any visitors using a BitTorrent network or watching Voltage’s films; though her children and their friends were sometimes at the apartment without her attendance.
[39] Ms. Cerilli also says that, given the choice, she would like to opt-out of the proposed class proceeding because she does not identify as a member of any class proposed by Voltage.
C. The Intervener’s Evidence
(1) The Lethbridge Affidavit
[40] Professor Timothy Lethbridge is a professor of software engineering and computer science at the University of Ottawa. He also is a licensed professional engineer and registered information systems professional. In his affidavit dated on September 9, 2019 Professor Lethbridge explains the relationship between ISPs and IP address holders as follows:
An IP address is a numerical identifier assigned to a network connection point of a device such as a router or a computer so as to allow other devices to communicate with it on the internet via Internet Protocol.
Internet Service Providers (“ISPs”) assign IP addresses to the routers that serve as the entry points to their customers’ networks.
Each ISP has a pool of IP addresses from which they can draw, and each assignment is subject to change.
While an IP address for a device connected to the internet is unique, it is not necessarily associated with any one computer or with any one individual computer user. Where the device connected to the internet is a router like a wireless internet (WiFi) router, multiple users may connect to the internet using a single IP address on a variety of devices including desktop computers, laptops, mobile phones, tablets, music players (iPods), e-book readers, and, increasingly, multi-functional household appliances such as refrigerators, vacuum cleaners, washing machines, and smart home devices (e.g. Amazon’s Alexa, Google Home).
[41] Professor Lethbridge emphasizes that it is difficult, if not impossible, to track the internet usage activities of individual devices connected to a shared internet connection, unless the person tracking has a high level of technical expertise and access to specialized software. He adds that:
It is completely wrong to presume that a responsible ISP customer would have knowledge of who was using the particular internet account at a specifically identified date and time or would have the ability to know that. It would be impossible to conclude, based on the IP address alone, that any one individual was responsible for the internet activity associated with that IP address without additional evidence obtained by examining the actual computer(s) or other devices used by that individual.
[42] Professor Lethbridge claims Mr. Perino’s characterization of BitTorrent does not match the reality of the software’s use. According to Professor Lethbridge, there is no differentiation between downloading and uploading files to BitTorrent. He says users do not “consciously decide or act so as to offer the file for download or advertise that it is available for download, because a core aspect of the BitTorrent protocol is that all files once shared are shared by all”. Professor Lethbridge says uploading or offering to upload files can be done without a user’s knowledge. He points out that where a BitTorrent user accesses the internet through an ISP customer’s IP address, the ISP customer would be completely unaware of any offering to upload or uploading of files through their IP address.
(2) The Kwan Affidavit
[43] Johann Kwan is an articling student at CIPPIC in Ottawa. In his affidavit dated September 6, 2019, Mr. Kwan outlined his research concerning file-sharing lawsuits filed by Voltage. He found a pattern of “trolling” by Voltage in the United States, where it has filed some 96 cases since 2010, many against unnamed defendants. As Mr. Kwan explains:
None of the cases filed by Voltage and its above-named associated entities in the American Federal Court system has proceeded to trial. All the cases are initially filed against a group of unnamed defendants. In some cases, courts have refused to permit joinder of unnamed defendants at the outset. In some cases, courts have permitted joinder of defendants during the discovery stage. Typically, the courts issue a subpoena against a third-party ISP to permit discovery of the identity of the unnamed defendants. Once the subpoena is issued, the plaintiffs are required to proceed individually against each defendant. The plaintiffs in the cases listed below have not proceeded against any individual defendant who has filed a defence. The plaintiffs in these cases either seek voluntary withdrawal, or file consent judgments, or proceed to default judgment where no defence is filed.
III. Analysis
A. Overview
[44] Voltage seeks certification of the underlying amended application as a class proceeding under Rules 334.14(2), 334.14(3) and 334.16, and on terms and conditions under Rule 334.17, with the proposed class being a class of respondents (as opposed to a plaintiff or applicant class).
[45] According to Voltage, certifying its application as a class proceeding will be more efficient in terms of time, money, and judicial resources than the alternative of naming thousands of respondents personally in separate proceedings. Voltage claims this choice of procedure would minimize the barriers to enforcement of what Voltage characterizes as “low-value infringements”; in that, the statutory damages regime for non-commercial infringements under the Copyright Act allows for damages of only $100 to $5,000, plus costs.
[46] Voltage contends that its application meets the conditions mandated under Rule 334.16(1). In Voltage’s view, its application discloses a reasonable cause of action, there is an identifiable class of two or more respondent persons, and the claims of the class members raise common issues of fact or law.
[47] In the respondents’ view, Voltage’s proposed reverse class proceeding is not suitable for certification. If certified, the proceeding will be inefficient, unfair, and unmanageable. According to the respondents, Voltage has not identified a class of two or more persons, and it would be impossible for potential members to reasonably self-identify under the proposed class definition.
[48] Even if a class exists, the respondents claim there is a lack of commonality, and a class proceeding would neither prevent re-litigation of issues nor entail any savings by spreading expenses. At its core, the respondents say Voltage’s application raises individual, not common, issues requiring a complex fact-finding process for each class member that would overwhelm the process. In the respondents’ view, Voltage’s litigation plan is practically unworkable and would imperil access to justice for the proposed class members.
[49] CIPPIC submits that the proposed reverse class proceeding should not be certified under Rule 334.16 because Voltage’s application does not disclose a reasonable cause of action. In CIPPIC’s view, there is no identifiable class of two or more persons with an objective class definition; there are no common issues that advance the litigation; and a reverse class proceeding is not the preferable procedure.
B. General Principles Governing Class Proceedings
[50] The purpose of class actions is threefold: namely, (i) facilitating access to justice; (ii) conserving judicial resources; and (iii) modifying harmful behaviors (Western Canadian Shopping Centres Inc. v Dutton, 2001 SCC 46 at paras 27 to 29 [Dutton]; Hollick v Metropolitan Toronto (Municipality), 2001 SCC 68 at paras 15, 16 and 25 [Hollick]). In Hollick, Chief Justice McLachlin (speaking for the Court) stated:
[15] The [Ontario Class Proceedings] Act reflects an increasing recognition of the important advantages that the class action offers as a procedural tool….class actions provide three important advantages over a multiplicity of individual suits. First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis. Second, by distributing fixed litigation costs amongst a large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own. Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public. … [Citations omitted]. In my view, it is essential therefore that courts not take an overly restrictive approach to the legislation, but rather interpret the Act in a way that gives full effect to the benefits foreseen by the drafters.
[51] A certification motion is a procedural matter. Its purpose is not to determine whether litigation can succeed, but how the litigation should proceed (Sauer v Canada (Minister of Agriculture), [2008] OJ No 3419 at para 12). The onus is on the moving party to establish an evidentiary basis for certification (Buffalo v Samson First Nation, [2009] 4 FCR 3 at para 32; affirmed 2010 FCA 165 [Buffalo Samson FCA]). The criteria in Rule 334.16(1) are conjunctive, and if an applicant fails to meet any one of the five listed criteria, the certification motion must fail (Buffalo Samson FCA at para 3). The moving party must show some basis in fact for each of the certification requirements, apart from the requirement that the pleadings disclose a reasonable cause of action (Hollick at para 25).
C. Reverse Class Proceedings
[52] Voltage’s submissions concentrate on Rule 334.16, which sets out the certification criteria, and on the jurisprudence interpreting this Rule.
[53] A reverse class proceeding is available in the Federal Court. A reverse class proceeding is a civil action brought against persons defending on behalf of a group of similarly situated persons. The objectives of reverse class actions are like those for plaintiff class actions: (i) the conservation of judicial resources and private litigation costs; (ii) preventing re-litigation of the same issues; and (iii) spreading expenses and resolving common issues over many defendants or respondents (Chippewas of Sarnia Band v Canada (AG), [1996] OJ No 2475 at para 16 [Chippewas]).
[54] Rule 334.14(2) enables a party to an action or application against two or more defendants or respondents to bring a motion for certification of the proceeding as a class proceeding and for the appointment of a representative defendant or respondent. Rule 334.14(3) states that Part 5.1 of the Federal Courts Rules applies, with any necessary modifications, to a defendant or respondent class proceeding.
[55] Under Rule 334.11, if no special provision is made in Part 5.1 relating to class actions and applications, the general Federal Courts Rules apply. Rule 334.16 sets out the certification conditions, the matters to be considered and, if applicable, the subclasses. Rule 334.17 sets out the contents of the order certifying a proceeding as a class proceeding.
[56] Rule 334.14(2), enabling certification of a respondent class proceeding and the appointment of a representative respondent, resulted from a series of discussions by the Federal Court Rules Committee between 1998 and 2000. These discussions culminated in the Committee’s adoption of defendant class certification principles enacted in Ontario; namely, section 4 of the Class Proceedings Act, SO 1992, c 6 [OCPA], and US Federal Court Rule 23(a) (Canada, Federal Court Rules Committee, Class Proceedings in the Federal Court of Canada - A Discussion Paper (Ottawa: June 9, 2000) at p 3).
[57] Part 5.1 of the Federal Courts Rules does not define or delineate the scope of “necessary modifications” in the context of a defendant or respondent class proceeding. While there is no binding or guiding precedent interpreting Rules 334.14(2) and (3), the Federal Court of Appeal in Canada v John Doe, 2016 FCA 191 [John Doe], remarked that:
[22] The conditions for certifying a class action are provided for at Rule 334.16 of the Rules. According to that provision, a class action proceeding shall be certified if the following conditions are met: (a) the pleadings disclose a reasonable cause of action, (b) there is an identifiable class of two or more persons, (c) the claims raise common questions of law or fact, (d) a class proceeding is the preferable procedure for just and efficient resolution of those common questions, and (e) there is a representative plaintiff who would fairly and adequately represent the interests of the class. These criteria are essentially the same ones applicable in provincial court proceedings in Ontario and British Columbia, such that the Federal Court’s jurisprudence on certification relies substantially on Supreme Court cases arising in those provinces: Buffalo v. Samson Cree Nation, 2010 FCA 165, 405 N.R. 232, at para. 8.
[58] In Chippewas, the Ontario Court of Justice observed that:
[17] Defendant class actions have a long history in Anglo-American jurisprudence. Their origins are in the English Courts of Equity of the 18th and 19th century. They evolved as a means of providing plaintiffs with an enforceable remedy where it was otherwise impractical to secure the attendance of all potential defendants, while at the same time ensuring that those affected by the outcome of a lawsuit, although absent, were sufficiently protected. Adequate representation of absentee defendants was viewed as a sufficient substitute for the natural justice requirements of individual notice and the opportunity to be heard [Citations omitted].
[18] Hansberry v. Lee…is one of the leading American cases to consider the circumstances in which absent persons will be bound by a judgment. In that case, the United States Supreme Court described the origins of the defendant class action in these terms at p. 118:
The class suit was an invention of equity to enable it to proceed to a decree in suits where the number of those interested in the subject of the litigation is so great that their joinder as parties in conformity to the usual rules of procedure is impractical. Courts are not infrequently called upon to proceed with causes in which the number of those interested in the litigation is so great as to make difficult or impossible the joinder of all because some are not within the jurisdiction or because their whereabouts is unknown or where if all were made parties to the suit its continued abatement by the death of some would prevent or unduly delay a decree. In such cases where the interests of those not joined are of the same class as the interest of those who are, and where it is considered that the latter fairly represent the former in the prosecution of the litigation of the issues in which all have a common interest, the court will proceed to a decree.
[59] The Court in Chippewas noted that Ontario was (in 1996) the only jurisdiction in Canada with a comprehensive class proceedings statute expressly authorizing a defendant’s class proceeding in addition to the more common plaintiff class actions (para 25). The Court further noted that the OCPA is remedial legislation to be given a purposive interpretation in keeping with its goals of promoting judicial economy and access to the courts (para 26). In its view, section 4 of the OCPA did not require that all potential defendants be named prior to certification of the proceeding and it was not expressly confined to willing or consensual representative defendants (paras 45 and 46).
D. Test for Certification
[60] Rule 334.16 stipulates that a judge must certify a proceeding as a class proceeding if:
(a) the pleadings disclose a reasonable cause of action;
(b) there is an identifiable class of two or more persons;
(c) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;
(d) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
(e) there is a representative plaintiff or applicant who
(i) would fairly and adequately represent the interests of the class,
(ii) has prepared a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members as to how the proceeding is progressing,
(iii) does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and
(iv) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff or applicant and the solicitor of record.
[61] According to Voltage, a proceeding must be certified as a class proceeding if each of the requirements stated in Rule 334.16 is fulfilled. In Voltage’s view, certification of class proceedings is desirable as a general principle and undue burdens should not be raised to deny certification.
(1) Do the Pleadings Disclose a Reasonable Cause of Action?
[62] The first requirement to certify a proceeding as a class proceeding is that the pleadings disclose a reasonable cause of action. This is assessed on the same standard of proof which applies on a motion to dismiss an action or application; assuming all facts pleaded are true, this requirement will be satisfied unless it is plain and obvious that the claim cannot succeed (Pro-Sys Consultants Ltd. v Microsoft Corporation, 2013 SCC 57 at para 63 [Pro-Sys]).
[63] According to Voltage, the threshold to meet the first requirement is low and it is unnecessary that it meet this in relation to all asserted causes of action. It is sufficient, Voltage says, that its pleadings disclose at least one valid cause of action.
[64] Voltage claims to have a reasonable cause of action against each of the Direct Infringers and Authorizing Infringers because they have distributed unauthorized copies of Voltage’s films over the internet. Voltage also claims it is entitled to enforce its copyrights and that the cause of action against Direct Infringers is proper.
[65] Voltage asserts that, in certain circumstances, failing to take down infringing content once notified of the infringement could lead to a finding of copyright infringement through authorization. According to Voltage, authorizing copyright infringement constitutes a reasonable cause of action.
[66] Voltage adds that persons who have allowed others to use their internet accounts, who in turn committed copyright infringements, cannot be wilfully blind as to how their accounts were used. These persons have a legal obligation, Voltage claims, not to sit by and fail to be reasonably informed as to the use of their internet accounts.
[67] CIPPIC’s position, which the respondents adopt and rely upon, is that Voltage has not pleaded the necessary facts to disclose a cause of action for any of the three alleged unlawful acts: namely, offering a film for download, secondary infringement in the films, and authorizing others to infringe copyrights in the films.
[68] According to CIPPIC, Voltage has not identified any respondent for its d