Date: 20220606  
Docket: T-513-18  
Citation: 2022 FC 827  
Toronto, Ontario, June 6, 2022  
PRESENT: The Honourable Madam Justice Furlanetto  
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This is a motion for default judgment brought pursuant to Rule 210 of the Federal Courts  
Rules, SOR/98-106 [Rules] relating to an action under the Federal Court’s simplified procedure  
for online copyright infringement. The Plaintiff, Voltage Holdings, LLC [Voltage], a movie  
production company, alleges that a mass group of internet subscribers used or authorized for use  
the BitTorrent peer-to-peer [P2P] network to unlawfully make the Plaintiff’s science-fiction film,  
Revolt [the Work] available for distribution. The Plaintiff seeks default judgment against thirty  
internet subscribers [Default Defendants] as well as statutory damages and costs from each. A  
list of the Default Defendants, identified by IP address, is attached as Schedule “A”.  
Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic [CIPPIC], a legal  
clinic based at the University of Ottawa and public interest intervener, was previously granted  
leave to intervene in the motion. It provided written submissions and argument at the hearing.  
For the reasons that follow, I find that there is insufficient evidence to grant default  
judgment, but that Rule 210(4)(c) should be exercised and the matter should proceed forward to  
trial, without prejudice to the Plaintiff to bring the same motion back again with better evidence.  
The Plaintiff is a motion picture production company. It hired a service company  
Maverickeye UG [Maverickeye] to use forensic data collection software [Software] to monitor  
the internet to look for unauthorized uploading and offering of its movies, including the Work,  
through the BitTorrent network.  
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As explained by the Plaintiff’s affiant, Benjamin Perino, BitTorrent is a protocol that  
allows for the transfer of large files between internet users on a P2P network. Rather than  
downloading a file from a single source server, the BitTorrent protocol allows users to join a  
“swarm” of hosts and upload and download files simultaneously in a decentralized manner. In  
P2P sharing, a computer program that implements the BitTorrent protocol requests a file and  
portions of the requested file residing on other devices connected to the P2P network are then  
sent and reassembled into a full copy on the end user’s device. Users do not typically copy an  
entire file from one peer, but rather from multiple peers that have already downloaded the file  
and have made it available through their BitTorrent software. Typically, when users copy a file  
they simultaneously offer to distribute portions of it to every other user connected to the  
BitTorrent network. The goal of the system is to distribute files over many computers and  
internet connections, which in turn tends to minimize data transfer from any one individual  
(Paragraphs 5-13, Affidavit of Benjamin Perino, affirmed May 28, 2021 [Perino Affidavit]).  
The Software tracks people offering files for download and requests portions of a file  
from a user who has made the file available. After confirmation that the downloaded portion  
matches the relevant work, the Software captures certain information about the file, including the  
Internet Protocol [IP] address of the user, the date and time the file was made available, the  
metadata of the file identifying the name and size of the file, and a “hash” signature identifying  
the version of the work.  
In 2017, the Software detected and verified portions of the Work being made available  
for download through the BitTorrent network from various IP addresses. Based on this  
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information, the Plaintiff sent notices to the related internet service providers [ISPs] to forward  
to the relevant internet subscribers associated with the IP addresses pursuant to the notice-and-  
notice regime set out by sections 41.25 and 41.26 of the Copyright Act, RSC, 1985 c C-42 [Act].  
The first notice gave the internet subscriber one week to remove the copy of the Work  
from the computer using the internet account or to be subject to the possibility of an action for  
copyright infringement. A second similar notice was sent where the Software located the same IP  
address offering the same Work after the seven day period set out in the first notice. The ISPs  
confirmed the notices were sent to the relevant internet subscribers.  
This action was commenced on March 16, 2018. In the Statement of Claim [SOC], the  
predecessor to the Plaintiff named 110 anonymous “Doe” Defendants, identified only by their IP  
addresses as determined by the Software.  
[10] On December 3, 2018, the Plaintiff’s predecessor obtained a Norwich order requiring the  
relevant ISPs to disclose the names and addresses of the subscribers of the IP addresses listed in  
the SOC.  
[11] The Plaintiff seeks relief against thirty internet subscribers that it describes as the “worst  
of the worst”. The Plaintiff asserts that the thirty Default Defendants are the internet subscribers  
associated with those IP addresses that offered the Work for download online “for weeks,  
sometimes months, possibly to thousands of people.” The degree of alleged infringement was  
assessed by considering the length of time within a three month period before and after the  
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notices that portions of the Work were made available for download and by considering the  
swarm size of the offering.  
[12] In support of its motion, the Plaintiff filed two affidavits: (1) the Perino Affidavit; and (2)  
an Affidavit of Marnie Macdonald, affirmed May 31, 2021 [Macdonald Affidavit].  
[13] Mr. Perino is the former Chief Executive Officer and a Senior Developer at GuardaLey  
Ltd, a company created to monitor the download and distribution of copyrighted works.  
Mr. Perino developed the Software which was licensed to Maverickeye and used to track and  
identify the IP addresses distributing the Work via the BitTorrent network.  
Ms. Macdonald is a law clerk working for the solicitors for the Plaintiff. Ms. Macdonald  
provides background to the proceeding, the investigations conducted using the Software, the  
notices delivered, service of the SOC, and the infringement analysis conducted.  
[15] As no defences were filed in the action, the evidence in the Perino and Macdonald  
Affidavits is uncontested.  
[16] As noted earlier, CIPPIC was granted leave to intervene in the motion. It filed written  
submissions and gave oral argument at the hearing.  
The Issues  
[17] This motion raises the following issues:  
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Was service of the SOC sufficient to establish that the Default Defendants are in  
Should default judgment be granted: Does the evidence establish that the Default  
Defendants, who are internet subscribers, have infringed copyright in the Work?  
If so, what quantum of statutory damages is the Plaintiff entitled to?  
Was service of the SOC sufficient to establish that the Default Defendants are in default?  
[18] On September 24, 2018, Prothonotary Milczynski, the Case Management Judge, ordered  
that service of the SOC by registered mail to the Defendants’ addresses disclosed pursuant to any  
Order of the Court for disclosure would be deemed personal service under Rule 128(1)(b) of the  
Rules if the Defendant or an adult member of their household signed for the package. If the  
package was unclaimed, the Plaintiff was to effect service by mailing a copy of the SOC by  
regular mail. The Order also provided that no default could be commenced without personal  
service of the SOC being effected in accordance with Rule 128(1)(b) and proof of service filed,  
unless otherwise ordered by the Court.  
[19] Rule 128 of the Rules provides for personal service of a SOC on an individual:  
(b) by leaving the  
b) par remise du document  
document with an adult  
person residing at the  
individual’s place of  
residence, and mailing a  
copy of the document to  
the individual at that  
à une personne majeure  
qui réside au domicile de  
la personne et par envoi  
par la poste d’une copie du  
document à cette dernière  
à la même adresse;  
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(e) by mailing the document  
by registered mail to the  
individual’s last known  
e) par envoi par courrier  
recommandé du document à la  
dernière adresse connue de la  
address, if the individual signs personne si la personne signe  
a post office receipt; . . .  
le récépissé du bureau de  
[20] The Macdonald Affidavit provides details of the service made on the thirty internet  
subscribers who are identified by the Plaintiff as the Default Defendants. The evidence indicates  
Twenty of the Default Defendants had the individual identified by the Norwich  
order sign personally for the registered mail package that included the SOC;  
Eight Default Defendants had an individual other than the individual identified by  
the Norwich order sign for the registered mail package that included the SOC;  
The registered mail package was not successfully delivered to one Default  
Defendant (Doe #15), but the SOC was sent to that Defendant by regular mail;  
There was no proof of delivery of the registered mail package for one other  
Default Defendant (Doe # 51).  
[21] Service on the first group satisfies the requirements of personal service under  
Rule 128(1)(e).  
[22] With respect to the second group, the Plaintiff asserts that it is reasonable to assume from  
the circumstances of the acceptance of the registered mail package that an adult signed for the  
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service package and that the package was directed to the Default Defendant. In all cases, a  
further reminder letter was also sent to all individuals identified by the Norwich order that fell  
into this group, except for Doe #24 with whom there was correspondence between the Default  
Defendant and counsel for the Plaintiff. There is no indication that any of this correspondence  
was ever returned. On the basis of my review of the service material, I am satisfied that it is  
likely that the SOC came to the Default Defendants’ attention and that service for this group  
should be validated.  
[23] With respect to the remaining two Default Defendants (Doe #15 and Doe #51), the  
Plaintiff has included correspondence between the Default Defendant or their counsel and the  
Plaintiff’s counsel regarding the action. I am satisfied that this correspondence indicates that Doe  
#15 and Doe #51 were aware, and had notice, of the action. Accordingly, I consider it  
appropriate to validate service on these Defendants.  
[24] CIPPIC argues that the Plaintiff should not be entitled to bring a default proceeding as it  
hasn’t done enough to identify the true Defendants who actually performed the activities asserted  
to be infringing. It contends that the Plaintiff should have requested discovery of the internet  
subscribers or requested a second Norwich order to identify the true users’ identities. However, it  
is up to the Plaintiff to define who it is asserting is the infringer. In my view, CIPPIC’s argument  
goes to the merits of the motion; that is, whether infringement has been established by the  
asserted defendants (the internet subscribers), rather than whether the motion can be brought.  
Accordingly, I will consider this argument further below in my discussion of the issue of  
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[25] CIPPIC further contends that the default motion should not proceed as there is improper  
joinder of the Default Defendants in one proceeding. I agree with the Plaintiff, as joinder is not  
an issue raised by the Plaintiff on this motion, it is outside the scope of the intervention order,  
which limited CIPPIC’s intervention to only those issues that were already in dispute. Moreover,  
there are no distinguishing facts that have emerged at this stage to suggest that joinder is  
inappropriate or inefficient to address the default claim against the group of Default Defendants.  
[26] As none of the Default Defendants filed a Statement of Defence within 30 days of being  
served with the SOC or at all, I am satisfied that the Default Defendants are indeed in default and  
that the Court should proceed to consider the merits of the motion and whether default judgment  
should issue.  
Should default judgment be granted: Does the evidence establish that the Default  
Defendants, who are internet subscribers, have infringed copyright in the Work?  
[27] In order for the Plaintiff to obtain relief for copyright infringement, it must first establish  
that it owns copyright in the Work.  
[28] If a name purporting to be that of the maker of the work appears on the work in the usual  
manner, that person is presumed to be the maker of the work, and the maker is presumed to own  
copyright (s. 34.1(1) of the Act; Canadian Broadcasting Corporation v Conservative Party of  
Canada, 2021 FC 425 at para 33). In the end credits of the Work it includes a written inscription  
that the owner of the copyright is POW Nevada, LLC. The Plaintiff has provided a copy of the  
assignment of copyright in the Work from POW Nevada LLC to the Plaintiff. In my view, these  
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facts are sufficient to entitle the Plaintiff to the presumption of ownership of copyright in the  
[29] Direct Infringement is addressed in subsection 27(1) of the Act, which states that: [i]t is  
an infringement of copyright for any person to do, without the consent of the owner of the  
copyright, anything that by this Act only the owner of the copyright has the right to do.”  
[30] Pursuant to subparagraph 3(1)(f) and subsection 2.4 (1.1) of the Act, a copyright owner  
has the exclusive right to communicate a work to the public by telecommunication, including in  
a way that allows a member of the public to have access to the work from a place and at a time  
individually chosen by that member of the public. A person infringes copyright if they violate  
these exclusive rights.  
[31] In Entertainment Software Association v Society of Composers, Authors and Music  
Publishers of Canada, 2020 FCA 100 at paragraphs 55-56 (leave to appeal to the SCC granted,  
39418 (22 April 2021)), the Federal Court of Appeal confirmed that paragraph 2.4 (1.1) of the  
Act was intended to clarify that the unauthorized sharing of copyrighted material over P2P  
networks constitutes an infringement of copyright.  
[32] The uncontested evidence indicates that portions of the Work have been made available  
through the BitTorrent network, by persons who are not the owner or individuals authorized by  
the owner, in a manner that allows BitTorrent users to have access to the portions of the Work at  
a chosen place and time. Mr. Perino’s evidence states that for each Default Defendant on at least  
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two occasions, the Software detected a person using the Default Defendant’s IP address to make  
a portion of the Work available for download over the BitTorrent network and distributed a copy  
of a portion of the Work (uploaded a portion of the Work) to the Software in response to a  
request for download. In each case, there were two comparisons completed by employees of  
Maverickeye to confirm that the downloaded portion was a copy of a portion of the Work.  
Similarly, the Software was able to verify that in each instance, the IP address used to offer the  
portion of the Work for download was the same in each of the two occurrences.  
[33] Thus, portions of the Work have been subject to unauthorized sharing over the BitTorrent  
network. The outstanding issue is whether the Default Defendants who are internet subscribers  
have committed an act of infringement.  
The Plaintiff put forward two theories of infringement in oral argument; either direct  
infringement or infringement by authorization.  
Is there Direct Infringement?  
[35] The Plaintiff bears the burden of establishing infringement on a balance of probabilities  
through clear, convincing and cogent evidence: FH v McDougall, 2008 SCC 53 at paras 40,  
45-46. The Plaintiff asserts that it has done all that it can to meet this burden. It contends that it  
has identified the internet subscribers responsible for the thirty IP addresses at issue and sent two  
notices to each (under the notice and notice regime) in an effort to deter infringement. It argues  
that as no defence has been filed, there are no additional facts in the proceeding to assist with  
identification of the users of the IP addresses in issue, and there is no technological way to pierce  
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through the veil of the internet to determine who was actually using the IP addresses at the time  
the Work was offered for download.  
[36] CIPPIC contends that the Plaintiff has failed to identify the persons who were accessing  
the computers at the time the Work was being offered and who are responsible for any alleged  
infringement. It asserts that it cannot be presumed that an internet subscriber and an internet user  
are the same person.  
[37] CIPPIC refers to the decision in R v Ward, 2012 ONCA 660 [Ward], where the Ontario  
Court of Appeal noted this gap at paragraph 23:  
The ISP records the dates and times that its IP addresses are  
assigned to its subscribers. These records identify the subscribers’  
accounts on which the Internet was accessed at particular times.  
However, that does not necessarily mean that the subscriber  
himself or herself was using the computer connected to the Internet  
at that time, or that it was even the subscriber’s computer that was  
connected to the Internet. A wired or wireless network may link  
multiple computers to a central device referred to as a shared  
access point. When more than one computer is accessing the  
Internet through a shared access point at the same time, there are  
additional technical issues that may arise.  
[38] The reasoning in Ward was similarly applied in United States v Viscomi, 2015 ONCA  
484 [Viscomi], which involved consideration of an extradition order. The Court at paragraphs 31  
and 35-36 found that the inference that Mr. Viscomi was the user of an IP address at the relevant  
time was not one that could reasonably and logically be drawn from the fact that he was  
the subscriber of that IP address. The gap between the subscriber information and the factual  
inference that Mr. Viscomi was the user of the IP address at the relevant time could only be  
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bridged by evidence. As such, the order committing Mr. Viscomi for extradition to the United  
States was quashed.  
[39] Both the Ward and Viscomi decisions, however, involved criminal proceedings, which  
carry a distinct standard of proof and an ability on behalf of the Crown to obtain search warrants  
and to compel testimony and documents. I agree with the Plaintiff that the role of the internet  
subscriber must be considered in the appropriate context, which in this case is the notice and  
notice regime under the Act.  
[40] The notice and notice regime was discussed in Rogers Communications Inc v Voltage  
Pictures LLC, 2018 SCC 38 [Rogers] at paragraphs 22-23 as serving two complementary  
objectives: deterring online copyright infringement; and balancing the rights of interested parties.  
With respect to the first objective, it was noted that “by requiring notice of a claimed  
infringement to be forwarded to the person who was associated with the IP address that is alleged  
to have infringed copyright, the regime is aimed at deterring that person, or others who are using  
the IP address, from continuing to infringe copyright”. As described by the Supreme Court at  
paragraph 24:  
[24] The notice and notice regime was not, however, intended to  
embody a comprehensive framework by which instances of online  
copyright infringement could be eliminated altogether. As a  
representative of Rogers explained before the House of Commons  
committee considering what would become of the Copyright  
Modernization Act, “notice and notice is not a silver bullet; it’s just  
the first step in a process by which rights holders can go after those  
they allege are infringing. ... Then the rights holder can use that  
when they decide to take that alleged infringer to court” (House of  
Commons, Legislative Committee on Bill C-32, Evidence, No. 19,  
3rd Sess., 40th Parl., March 22, 2011, at p. 10). This is why, as I  
have explained, a copyright owner who wishes to sue a person  
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alleged to have infringed copyright online must obtain a Norwich  
order to compel the ISP to disclose the person’s identify. The  
statutory notice and notice regime has not displaced this  
requirement, but operates in tandem with it. This is affirmed by  
s. 41.26(1)(b), which contemplates that a copyright owner may sue  
a person who receives notice under the regime, and fixes the ISP’s  
obligation to retain records which allow that person’s identity to be  
determined for a period of time after such notice is received.  
[41] With respect to balancing the rights of interested parties, the Supreme Court in Rogers  
noted at paragraphs 26 and 27:  
[26] For example, Parliament sought to strike a balance between  
the interests of copyright owners and of Internet subscribers,  
respectively, by preferring a notice and notice regime over a  
“notice and take down” regime (see House of Commons Debates,  
at p. 2109, per Hon. James Moore). ... the notice and notice regime  
allows for notices of claimed infringement to be forwarded  
(thereby advancing the rights of copyright holders), while  
accounting for the interests of Internet subscribers by maintaining  
the presumption of innocence and allowing them to monitor their  
own behaviour (and, more specifically, to avoid continued  
copyright infringement).  
[27] Parliament also sought to balance the interests of copyright  
owners against those of Internet intermediaries such as ISPs. ... the  
amendments to the Act were also intended to “clarify Internet  
service providers’ liability” to copyright owners (Copyright  
Modernization Act, summary; see also Legislative Committee on  
Bill C-32, Evidence, at p. 1, per Craig McTaggart). To that end,  
Parliament insulated ISPs from liability for the copyright  
infringement of their Internet subscribers (Act, s. 31.1). Now, to  
attract liability under the Act, an ISP must fail to satisfy its  
statutory obligations under the notice and notice regime, or provide  
a service “primarily for the purpose of enabling acts of copyright  
infringement” (ss. 27(2.3), 31.1 and 41.26(3)).  
[42] In my view, these comments, which refer back to the objectives of Parliament in  
implementing the notice and notice regime, highlight that litigation by rights holders against  
internet subscribers was contemplated if deterrence was not achieved by the notice and notice  
system. However, it does not suggest an absolute liability framework. As stated, there is a  
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presumption of innocence for internet subscribers. Infringement by internet subscribers (either  
directly or through authorization), in my view, must still be proven for the claim to succeed.  
[43] This same theme was further emphasized at paragraph 41 of Rogers, wherein the Court  
[41] It must be borne in mind that being associated with an IP  
address that is the subject of a notice under s. 41.26(1)(a) is not  
conclusive of guilt. As I have explained, the person to whom an IP  
address belonged at the time of an alleged infringement may not be  
the same person who has shared copyrighted content online  
[44] The Plaintiff asserts that it has provided comprehensive evidence of significant and  
repeated infringement. It has the names and addresses of the internet subscribers that it knows  
are associated with the IP addresses from which it asserts there is repeated infringing use. Where  
the defendant has failed to engage and provide further information, the Plaintiff asserts that the  
persuasive (legal) burden applies, shifting the burden to the Default Defendants to disprove their  
association with the acts concerned at the IP addresses: Sopinka, Lederman & Bryant: The Law  
of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018) at §3.11-§3.15.  
[45] I do not agree that the burden shifts so easily. In a default proceeding all allegations in the  
statement of claim are treated as denied and the plaintiff bears the burden of proof: Tatuyou LLC  
v H2Ocean Inc, 2020 FC 865 at para 9; NuWave Industries Inc v Trennen Industries Ltd., 2020  
FC 867 at paras 16-17. The Plaintiff is required to lead sufficient evidence to allow the Court to  
conclude on a balance of probabilities that the Default Defendants are the proper defendants and  
have infringed copyright.  
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[46] CIPPIC contends that despite the defendants being in default, the Plaintiff should not be  
entitled to obtain judgment without exhausting the procedural means available to obtain further  
information. It asserts that the Plaintiff could have sought leave to obtain discovery of the  
internet subscribers under Rule 236(1)(c) of the Rules, which provides that a party may examine  
an adverse party for discovery if the adverse party is in default of serving and filing its pleadings  
and leave of the Court has been obtained. If identifying an IP address associated with allegedly  
infringing activity is sufficient to maintain an action for primary infringement, CIPPIC asserts it  
would encourage unscrupulous actors to litigate and run counter to the purposes of the Act.  
[47] The Plaintiff argues that even if discovery were available, it would require the Plaintiff to  
obtain all electronic devices associated with the IP address, or forensic copies of the devices, of  
all individuals with access to the IP address on the relevant dates in order to definitively establish  
who was using the computer at the relevant time. The intrusion into the privacy of these  
individuals would be significant and the costs of the analysis high. Similarly, asking third party  
ISPs to provide detailed internet activity logs of their subscribers would raise significant privacy  
concerns or require expert assistance if in fact the evidence existed in a useful form.  
[48] It notes that the Court has previously expressed reluctance in ordering disclosure of  
information about subscribers in order “to make sure that privacy rights are invaded in the most  
minimal way” (Voltage Pictures, LLC v John Doe, 2016 FC 881 at para 16; rev’d other grounds  
2017 FCA 97; rev’d other grounds 2018 SCC 38).  
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[49] The Plaintiff refers to paragraph 46 of Rogers, which states that “the notice and notice  
regime should be interpreted so as “to allow copyright owners to protect and vindicate their  
rights as quickly, easily and efficiently as possible while ensuring fair treatment of all””. It  
contends that to require it to do more would place an unreasonable burden on the Plaintiff,  
tipping the balance in favour of the rights users and making it impossible for any reasonable  
enforcement of online copyright infringement.  
[50] I agree with the Plaintiff that if leave for discovery were granted, the scope of allowable  
discovery would likely only be limited, particularly in the context of a simplified proceeding  
such as this. However, this does not mean that some further discovery or a request for further  
information would be futile. Without seizing the electronic devices at the address, written  
discovery could be used to seek further information as to the nature of the system provided at the  
IP address, including how many devices the IP address services, the type of interaction or control  
the IP owner has over those devices and its users, how many users there are, and what if any  
steps were taken with respect to those users after the notices under the notice and notice regime  
were received. Such information would assist with understanding the role of the internet  
[51] The Perino Affidavit states that the ISP’s customer may be (and often is) the individual  
who is utilizing BitTorrent software to distribute files, particularly if the assigned IP address is  
only used by a single device. However, the ISP may be getting their internet delivered through a  
router supplied by the ISP. In that case, the router allows many devices to use the customer’s  
internet connection and its specifically allocated IP address with other devices connected to it.  
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This is common in a residential setting. The connected devices can include both wired and  
wireless devices of many different types: computers, tablets, phones, game consoles, smart TVs,  
set-top boxes, etc., each of which could be used by different individuals.  
[52] In my view, some attempt must be made to determine the internet user responsible for the  
alleged infringement before a presumption can arise that the internet subscriber is that user or a  
proper adverse inference can be drawn based on non-responsiveness.  
[53] As stated in Joe Hand Promotions Inc v Social Major League Sports Bar & Grill, 2009  
FC 699 at paragraph 3.  
The practice of using the term “John Doe” in the style of cause is  
directed at permitting a plaintiff to sue a person whose name the  
plaintiff does not know. The practice is perfectly acceptable;  
however, the expectation is that the plaintiff will take reasonable  
steps to identify the unnamed defendant and then move to amend  
the style of cause.  
[54] The same holds true in this John Doe proceeding with respect to the unnamed defendants  
and proposed wrongdoers.  
[55] In light of the balance the Act seeks to provide between the rights of users and owners  
(Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet  
Providers, 2004 SCC 45 [SOCAN] at paras 40-41), something more is needed than the bare  
assertion that a subscriber is, by default, the user responsible for infringement. A direct link must  
be addressed by the evidence between the internet subscriber and the alleged infringing use or  
sufficient steps taken for an adverse inference to be drawn against the internet subscriber.  
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[56] An assumption of infringement is not enough. Based on the steps taken and evidence  
filed, I cannot conclude that direct infringement by the default internet subscribers has occurred.  
[57] While this is sufficient to conclude on this sub-issue, I note that the evidence is also  
thinas to the portions of the Work made available through each IP address. This presents a  
further evidentiary challenge to be able to conclude that infringement has occurred in each  
instance. However, in view of my findings above, I need not delve into this further.  
Is there Infringement by Authorization?  
[58] The leading cases on authorization in the context of copyright infringement are CCH  
Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 [CCH] and SOCAN, both of which  
were decided before the implementation of the notice and notice regime.  
[59] CCH involved allegations of unauthorized copying from a library photocopier. At  
paragraph 38, the Supreme Court of Canada considered the meaning of authorization as it related  
to the use of equipment as follows:  
“Authorize” means to “sanction, approve and countenance”:  
Muzak Corp. v. Composers, Authors and Publishers Association of  
Canada, Ltd., [1953] 2 S.C.R. 182, at p. 193; De Tervagne v.  
Beloeil (Town), [1993] 3 F.C. 227 (T.D.). Countenance in the  
context of authorizing copyright infringement must be understood  
in its strongest dictionary meaning, namely “[g]ive approval to;  
sanction, permit; favour, encourage”: see The New Shorter Oxford  
English Dictionary (1993), vol. 1, at p. 526. Authorization is a  
question of fact that depends on the circumstances of each  
particular case and can be inferred from acts that are less than  
direct and positive, including a sufficient degree of indifference:  
CBS Inc. v. Ames Records & Tapes Ltd., [1981] 2 All E.R. 812  
(Ch.D.), at pp. 823-24. However, a person does not authorize  
infringement by authorizing the mere use of equipment that could  
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be used to infringe copyright. Courts should presume that a person  
who authorizes an activity does so only so far as it is in accordance  
with the law: Muzak, supra. This presumption may be rebutted if it  
is shown that a certain relationship or degree of control existed  
between the alleged authorizer and the person who committed the  
copyright infringement: Muzak, supra; De Tervagne, supra; see  
also J.S. McKeown, Fox Canadian Law of Copyright and  
Industrial Designs (4th ed. (loose-leaf)), at p. 21-104, and P.D.  
Hitchcock, “Home Copying and Authorization” (1983), 67 C.P.R.  
(2d) 17, at pp. 29-33.  
[60] In SOCAN, Justice Binnie at paragraph 127 commented in obiter on what might  
constitute authorization relating to ISPs before the notice and notice regime:  
The knowledge that someone might be using neutral technology to  
violate copyright (as with the photocopier in the CCH case) is not  
necessarily sufficient to constitute authorization, which requires a  
demonstration that the defendant did “(g)ive approval to; sanction,  
permit; favour, encourage” (CCH, at para 38) the infringing  
conduct. I agree that notice of infringing content, and a failure to  
respond by “taking it down” may in some circumstances lead to a  
finding of “authorization”. However, that is not the issue before us.  
Much would depend on the specific circumstances. An overly  
quick inference of “authorization” would put the Internet Service  
Provider in the difficult position of judging whether the copyright  
objection is well founded, and to choose between contesting a  
copyright action or potentially breaching its contract with the  
content provider. A more effective remedy to address this potential  
issue would be the enactment by Parliament of a statutory “notice  
and take down” procedure as has been done in the European  
Community and the United States.  
[61] The issue of authorization in the BitTorrent framework is currently pending in a proposed  
reverse class action proceeding involving the Plaintiff and CICC as intervener. A motion to  
strike the proceeding was recently reversed in part as it related to inter alia allegations of  
authorization by an internet subscriber (Salna v Voltage Pictures LLC, 2021 FCA 176 [Salna],  
Page: 21  
leave to appeal to SCC denied, 39895 (26 May 2022)). The FCA provided the following  
comments at paragraphs 76-85 relating to pleading infringement by authorization:  
[76] The Federal Court also erred in dismissing Voltage’s cause  
of action that the respondents authorized the infringement. The  
judge concluded that Voltage relied on an overly broad reading of  
Binnie J.’s obiter comment in SOCAN at paragraph 127. Binnie J.  
observed that the failure to take down infringing conduct after  
receiving notice may in some circumstances lead to a finding of  
‘authorization’” [Emphasis in original], (Federal Court reasons at  
para. 79).  
[77] Here again, the judge delved into the merits of the  
argument, rather than considering whether Voltage should be  
precluded from advancing the argument. At this stage of a  
proceeding, it is not appropriate to engage in a detailed analysis of  
the argument, and more particularly, whether the proposed  
argument is good law (Merck & Co., Inc. v. Apotex Inc., 2012 FC  
454, 106 C.P.R. (4th) 325 at para. 28 (Merck & Co.)). Indeed, the  
careful use of the word “may” is an indication from the Court that  
the question is open for consideration.  
[78] When combined, subsections 3(1) and 27(1) of  
the Copyright Act grant the right to authorize the reproduction of a  
Work. Voltage’s claim may push against the boundaries of a claim  
for authorizing infringement, but that is not the test on a motion to  
strike. Although the topic of “authorizing infringement” has been  
judicially considered, the Court in this case is faced with a novel  
application of the doctrine. Specifically, this Court must consider  
the prohibition on authorizing infringement in the context of  
BitTorrent technology and the notice and notice regime.  
[79] The key precedents, CCH and SOCAN, arose in distinct  
legal and factual contexts. CCH dealt with authorization in relation  
to photocopiers while SOCAN was decided prior to the enactment  
of the notice and notice regime. Accordingly, the extent to which  
these authorities provide the requisite guidance in this context to  
conclusively preclude allegations of direct and authorizing  
infringement at the certification stage is an arguable question.  
[80] Mr. Salna made no submissions on the question of whether  
there was a reasonable cause of action; rather he adopted the  
argument of the intervener.  
[81] CIPICC argues that cases like CCH, SOCAN and Century  
21 closed the door to the possibility that a party can be liable for  
Page: 22  
authorizing infringement without explicitly authorizing  
infringement. In other words, the mere act of providing access to  
technology that allowed the infringement cannot on its own ground  
a claim for authorizing infringement.  
[82] CIPICC asks the Court to definitively determine the  
question of whether, on the facts pled, a reasonable cause of action  
exists. That is not the role of a court in assessing the  
reasonableness of a cause of action.  
[83] At this stage, all a Court should do is determine whether the  
moving party should be precluded from advancing their argument  
in front of a trial judge (Merck & Co. at para. 15). In determining  
this, “[…] the Court must be generous and err on the side of  
permitting a novel but arguable claim to proceed […]” (Assn. of  
Chartered Certified Accountants v. Canadian Institute of  
Chartered Accountants, 2011 FC 1516, 2011 CarswellNat 5412 at  
para. 9; Merck & Co. at para. 24). Allowing novel but arguable  
claims to proceed is the “[o]nly […] way can we be sure that the  
common law […] will continue to evolve to meet the legal  
challenges that arise in our modern […] society” (Hunt v. Carey  
Canada Inc., [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321 at 990-  
991). In this instance, Voltage has shown it has a novel but  
arguable claim.  
[85] It is also clear that Voltage has pled the material facts  
necessary to support its claim based on a reasonable interpretation  
of authorizing infringement. For example, as seen in paragraph 44  
of the Amended Notice of Application, Voltage pleads that the  
proposed class members “possessed sufficient control over the use  
of his or her internet account and associated computers and internet  
devices such that they authorized, sanctioned, approved or  
countenanced the infringements particularized herein.”  
[62] While not necessary at the time of pleading, at the time of adjudication, Salna implies  
that the Plaintiff would have evidence to establish that the internet subscriber “possessed  
sufficient control over the use of his or her internet account and associated computers and  
internet devices such that they authorized, sanctioned, approved or countenanced the  
infringements particularized” (paragraph 85).  
Page: 23  
[63] In this case, the Plaintiff has not provided any such evidence. Instead, it relies on the  
comments made in Rogers at paragraphs 34 and 35, relating to the deterrent purpose behind the  
notice and notice regime, which is premised on the capability of an internet subscriber to stop the  
continuation of copyright infringement by being able to determine who is using the IP address:  
[34] The deterrent purpose of the notice and notice regime also  
affirms the ISP’s duty to correctly determine to whom the  
impugned IP address belonged at the time of the alleged  
infringement. Deterring online copyright infringement entails  
notifying that person, because it is only that person who is capable  
of stopping continued online copyright infringement.  
[35] I acknowledge that there will likely be instances in which  
the person who receives notice of a claimed copyright  
infringement will not in fact have illegally shared copyrighted  
content online. This might occur, for example, where one IP  
address, while registered to the person who receives notice of an  
infringement, is available for the use of a number of individuals at  
a given time. Even in such instances, however, accuracy is crucial.  
Where, for example, a parent or an employer receives notice, he or  
she may know or be able to determine who was using the IP  
address at the time of the alleged infringement and could take steps  
to discourage or halt continued copyright infringement. Similarly,  
while institutions or businesses offering Internet access to the  
public may not know precisely who used their IP addresses to  
illegally share copyrighted works online, they may be able, upon  
receiving notice, to take steps to secure its Internet account with its  
ISP against online copyright infringement in the future.  
[64] The Perino Affidavit asserts that where an ISP’s customer is a homeowner getting their  
internet delivered through a router supplied to the ISP, the homeowner would typically have  
knowledge of the family members who are connected through the router and there would be  
limitations to the physical range of the internet connection. Mr. Perino notes that almost all  
routers provide security settings that “allow a password to be put on Wi-Fi access, enable a  
blacklist to ban specified devices, enable a whitelist to only permit specified devices and block  
certain types of internet traffic (such as BitTorrent).” The Plaintiff contends from this evidence  
Page: 24  
that the Default Defendants could have easily taken action to prevent infringement by; for  
example, changing the Wi-Fi passwords, blacklisting unauthorized devices or even blocking the  
BitTorrent protocol.  
[65] CIPPIC argues that the Plaintiff seeks to lower the standard of authorization to whether  
the alleged authorizer has any power to stop the direct infringer. They assert that this is akin to  
the standard adopted in Australia, which the Supreme Court explicitly rejected in CCH when it  
stated at paragraphs 39-41:  
... At trial, the Law Society applied for a declaration that it did not  
authorize copyright infringement by providing self-service  
photocopiers for patrons of the Great Library. No evidence was  
tendered that the photocopiers had been used in an infringing  
The trial judge declined to deal with this issue, in part because of  
the limited nature of the evidence on this question. The Federal  
Court of Appeal, relying in part on the Australian High Court  
decision in Moorhouse v. University of New South Wales, [1976]  
R.P.C. 151, concluded that the Law Society implicitly sanctioned,  
approved or countenanced copyright infringement of the  
publishers’ works by failing to control copyright and instead  
merely posting a notice indicating that the Law Society was not  
responsible for infringing copies made by the machine’s users.  
With respect, I do not agree that this amounted to authorizing  
breach of copyright. Moorhouse, supra is inconsistent with  
previous Canadian and British approaches to this issue. See D.  
Vaver, Copyright Law (2000), at p. 27, and McKeown, supra, at p.  
21-108. In my view, the Moorhouse approach to authorization  
shifts the balance in copyright too far in favour of the owner’s  
rights and unnecessarily interferes with the proper use of  
copyrighted works for the good of society as a whole.  
[66] As noted by CIPPIC, even under the more liberal Australian standard, the relevant  
statutory provision provides for consideration to be given to the extent to which the proposed  
authorizer has power to prevent the doing of the act concerned, the nature of the relationship  
Page: 25  
between the proposed authorizer and infringer, and whether reasonable steps were taken to  
prevent or avoid the act (Copyright Act, (Austl), 1968/63, section 36(1A)).  
[67] While Salna indicates that the door should not be closed to evolving the law relating to  
authorization in order to meet the needs of modern technology, there must still be a balanced  
approach. If one were to apply the Plaintiff’s argument to this action, this would mean that once  
an internet subscriber is notified of a potential infringement under the notice and notice regime,  
if the infringement does not cease, they would be liable for authorizing the infringement without  
the need to establish any control or relationship to the infringer. In my view, this lowers the bar  
and tips the balance under the Act in favour of copyright owners.  
[68] To establish authorization in this context, in my view, consideration must be given to not  
only whether the Default Defendant had knowledge of the alleged infringing activity, but also  
the relationship and extent of control over the user and whether the internet subscriber had some  
ability to prevent the act of concern.  
[69] The Plaintiff provided notices to the Default Defendants through their ISPs, who  
confirmed that the notices were sent. The confirmations that the emails were sent is sufficient to  
ground a presumption that the notices were received by the internet subscribers (Zare v Canada  
(Minister of Citizenship and Immigration), 2010 FC 1024 at para 48) and that they had  
knowledge of the alleged infringing activity.  
Page: 26  
[70] However, there is no evidence as to the nature of relationship between the internet  
subscribers identified as Default Defendants and those that actually uploaded the unauthorized  
content, who as discussed earlier have not been identified. There is also no evidence as to what  
steps, if any, the internet subscribers have taken to prevent further alleged infringement. As  
previously noted, some form of discovery could be sought to seek these facts or any others that  
would support a finding of authorization or allow an adverse inference to be drawn.  
[71] On the basis of the record before me, there is insufficient evidence to ground a finding of  
infringement by authorization.  
Other Allegations - Is there Secondary Infringement  
[72] While not argued orally, the Plaintiff’s written representations also assert that the Default  
Defendants have engaged in secondary infringement. This presents an even steeper hurdle for the  
Plaintiff from an evidentiary stand-point.  
[73] In order to establish secondary infringement under subsection 27(2) of the Act, the  
following test must be satisfied (CCH at para 81; Euro-Excellence v Kraft Canada Inc, 2007  
SCC 57; Salna at para 87): a) there must be an act of primary infringement; b) the secondary  
infringer must be shown to have known that he or she was dealing with a product of  
infringement; and c) the secondary infringer must have sold, distributed or exposed for sale the  
infringing goods.  
Page: 27  
[74] I agree with CIPPIC that there is insufficient evidence to establish secondary  
infringement. In particular, the Plaintiff has not provided any evidence that the Default  
Defendants have committed any of the acts specified in the third part of the test that is, that  
they have sold, distributed or exposed the Work for sale either directly or by authorization.  
[75] Accordingly, judgment cannot issue on the basis of this further allegation.  
Remedies and Conclusion  
[76] Given my findings on the infringement issue, I need not go on at this stage to consider the  
statutory damages requested.  
[77] Rule 210(4) provides that the Court may on a motion for default judgment do one of three  
things: a) grant judgment; b) dismiss the action; or c) order that the action proceed to trial and  
that the plaintiff prove its case in such a manner as the Court may direct.  
[78] On the basis of the evidentiary deficiencies noted, I cannot grant judgment. Nor am I  
prepared to find that the Plaintiff would not be entitled to any relief for its claim on a more  
fulsome evidentiary record. Accordingly, I shall invoke Rule 210(4)(c) and the Plaintiff shall be  
ordered to requisition a case management conference to set the next steps to advance the case to  
trial. The order shall be made without prejudice to the Plaintiff’s ability to seek default judgment  
again on a different evidentiary record that addresses the deficiencies noted in these reasons.  
Page: 28  
ORDER IN T-513-18  
The motion for Default Judgment is dismissed.  
The action shall proceed forward to trial pursuant to subrule 210(4)(c).  
The Plaintiff shall within thirty (30) days of the date of this Order  
requisition a case management conference to set a timetable for the next  
steps in the action.  
Notwithstanding paragraph 2, the Plaintiff is not precluded from  
commencing a further motion for default judgment on a different  
evidentiary record that addresses the deficiencies noted in these reasons.  
This is no order as to costs.  
"Angela Furlanetto"  
Page: 29  
Schedule “A”  
IP Address  
Default Defendant  
Doe #3  
Doe #4  
Doe #8  
Doe #15  
Doe #18  
Doe #20  
Doe #23  
Doe #24  
Doe #26  
Doe #30  
Doe #33  
Doe #36  
Doe #37  
Doe #42  
Doe #48  
Doe #49  
Doe #50  
Doe #51  
Doe #58  
Doe #62  
Doe #63  
Doe #66  
Doe #84  
Doe #86  
Doe #93  
Doe #94  
Doe #97  
Doe #103  
Doe #108  
Doe #109  
NOVEMBER 29, 2021  
JUNE 6, 2022  
Kenneth R. Clark  
Lawrence Veregin  
David A. Frewer  
Aird & Berlis  
Barristers and Solicitors  
Toronto, Ontario  
Samuelson-Glushko & Public  
Interest Clinic  
University of Ottawa, Faculty of  
Law. Common Law Section  
Ottawa, Ontario  

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