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Court File No.: T-2058-12 FEDERAL COURT BETWEEN Court File No.: T-2058-12 FEDERAL COURT BETWEEN: VOLTAGE PICTURES LLC PLAINTIFF/MOVING PARTY - and - JOHN DOE and JANE DOE DEFENDANTS - and - TEKSAVVY SOLUTIONS INC. RESPONDING PARTY - and – SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC INTERVENER MOTION RECORD OF THE SAMUELSON-GLUSHKO CANADIAN INTERNET POLICYAND PUBLIC INTEREST CLINIC (Motion for a written examination of a non-party under rule 238) Volume 3 of 4: Book of Authorities, Part 1 Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC) University of Ottawa, Faculty of Law, Common Law Section 57 Louis Pasteur Street Ottawa, ON, K1N 6N5 David Fewer Tel: (613) 562-5800 ext. 2558 Fax: (613) 562-5417 TO: THE ADMINISTRATOR Federal Court of Canada AND TO: VOLTAGE PICTURES LLC P. James Zibarras BRAUTI THORNING ZIBARRAS LLP 151 Yonge Street, Suite 1800 Toronto, ON M5C 2W7 Tel: (416) 362-4567 Fax: (416) 362-8410 AND TO: TEKSAVVY SOLUTIONS INC. Nicholas McHaffie Stikeman Elliot LLP Suite 1600, 50 O’Connor Street Ottawa, ON K1P 6L2 Tel: (613) 566-0546 Fax: (613) 230-8877 Table of Contents TAB TITLE PAGE VOLUME 1 1 Affidavits And Transcripts 2 A Affidavit of Alexander M Cooke, dated 27 February 2013 2 B Affidavit of Timothy Lethbridge, dated 27 February 2013 59 Transcript of the cross-examination of Barry Logan on his C 71 affidavit of 7 December 2012, dated 5 June 2013 Exhibit 1: First nine pages of printed material from Canipre D 158 Website. (Page 8 identified as cached copy) Exhibit 2: Bundle of Documents, consisting of Media E 167 Coverage of Canipre VOLUME 2 2 Memorandum of Fact and Law 168 3 Appendix A: Statutes and Regulations Copyright Act, R.S.C., 1985, c. C-42 Federal Court Rules, SOR 98/106 Personal Information Protection and Electronic Documents Act, S.C. 2000 VOLUME 3 4 Appendix B: Book of Authorities 1654776 Ontario Limited v. Stewart, 2013 ONCA 184, [2013] OJ A No 1362 (QL) A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 SCR B 567 C BMG Canada Inc. v. Doe, 2005 FCA 193, [2005], 4 RCF 81 D Cash Converters Canada Inc. v. Oshawa (City), 2007 ONCA 502 Home Office v. Harman, [1983] 1 AC 280 (UK HL) [1982] 1 All E ER 532 Ingenuity 13 LLC v. John Doe, Case No. 2:12-cv-8333-ODW, 2013 F WL 1898633 (JCx) (CD Cal 2013) G Jones v. Tsige, 2012 ONCA 32, [2012] OJ No 148 H Juman v. Doucette, 2008 SCC 8, 290 DLR (4th) 193 Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 72 Cal Rptr 3d 231 I (Cal. App. 6 Dist 2008) J M.(A.) v. Ryan, [1997] 1 S.C.R. 157, [1997] SCJ No 13 K R. v. O’Connor, [1995] 4 S.C.R. 411, [1995] SCJ No 98 VOLUME 4 L R. v. Spencer, 2011 SKCA 144, [2011] SJ No 729 M R. v. Trapp, 2011 SKCA 143, [2011] SJ No 728 N R. v. Ward, 2012 ONCA 660, [2012] OJ No 4587 Recording Industry Association of New Zealand Inc. v. O Enforcement Number: Telecom NZ 2592, [2013] NZCOP 2 Rugby Football Union v. Consolidated Information Services Ltd., P (formerly Viagogo Ltd) (in liquidation), [2012] UKSC 55, [2013] 1 All ER 928 Safety Point Products, LLC et al. v. Does 1-14, Does 15-96, Does Q 97-177, & Does 178-197, Case Nos. 1:12-CV-2812, 1:12-CV- 2820; 1:12-CV-2831; 1:12-CV-2894 (ND Ohio 2013) Tattered Cover, Inc. v. The City of Thornton, 44 P.3d 1044, (Colo R Sup Ct, en banc, 2002), 30 Media L Rep 1656 S Voltage v. Doe, 2013 FC 112 T Voltage Pictures LLC v. Jane Doe and John Doe, 2011 FC 1024 Voltage Pictures, LLC, v. Does 1-198, Does 1-12, Does 1-34, Does U 1-371, (6:13-cv-290-AA, 2:13-292-AA, 1:13-293-AA, 3:13-295- AA) (D Oregon 2013) V Warman v. Fournier, 2012 FC 803, [2012] FCJ No 851 W Warman v. Fournier et al., 210 ONSC 2126, [2010] OJ No 1846. ACADEMIC J. Cohen, “A Right to Read Anonymously: A Closer Look at X “Copyright Management” in Cyberspace”, (1996) 28 Conn. L. Rev. 981 S. Balganesh, “The Uneasy Case Against Copyright Trolls” (2013) Y 86 S. CAL. L. REV. (forthcoming) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) 2013 ONCA 184 (CanLII) SUPREME COURT OF CANADA CITATION: A.B. v. Bragg Communications Inc., 2012 SCC 46, DATE: 20120927 [2012] 2 S.C.R. 567 DOCKET: 34240 BETWEEN: 2012 SCC 46 (CanLII) A.B. by her Litigation Guardian, C.D. Appellant and Bragg Communications Incorporated, a body corporate, and Halifax Herald Limited, a body corporate Respondents - and - BullyingCanada Inc., British Columbia Civil Liberties Association, Kids Help Phone, Canadian Civil Liberties Association, Privacy Commissioner of Canada, Newspapers Canada, Ad IDEM/Canadian Media Lawyers Association, Canadian Association of Journalists,, Professional Writers Association of Canada, Book and Periodical Council, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Canadian Unicef Committee, Information and Privacy Commissioner of Ontario and Beyond Borders Interveners CORAM: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein and Karakatsanis JJ. REASONS FOR JUDGMENT: Abella J. (McLachlin C.J. and LeBel, Deschamps, Fish, (paras. 1 to 31) Rothstein and Karakatsanis JJ. concurring) - 2 - A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567 A.B., by her Litigation Guardian, C.D. Appellant 2012 SCC 46 (CanLII) v. Bragg Communications Incorporated, a body corporate, and Halifax Herald Limited, a body corporate Respondents and BullyingCanada Inc., British Columbia Civil Liberties Association, Kids Help Phone, Canadian Civil Liberties Association, Privacy Commissioner of Canada, Newspapers Canada, Ad IDEM/Canadian Media Lawyers Association, Canadian Association of Journalists, Professional Writers Association of Canada, Book and Periodical Council, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Canadian Unicef Committee, Information and Privacy Commissioner of Ontario and Beyond Borders Interveners Indexed as: A.B. v. Bragg Communications Inc. 2012 SCC 46 File No.: 34240. - 3 - 2012: May 10; 2012: September 27. Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein and Karakatsanis JJ. ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA 2012 SCC 46 (CanLII) Courts — Open court principle — Publication bans — Children — 15-year-old victim of sexualized cyberbullying applying for order requiring Internet provider to disclose identity of person(s) using IP address to publish fake and allegedly defamatory Facebook profile — Victim requesting to proceed anonymously in application and seeking publication ban on contents of fake profile — Whether victim required to demonstrate specific harm or whether court may find objectively discernable harm. A 15-year-old girl found out that someone had posted a fake Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her. The picture was accompanied by unflattering commentary about the girl’s appearance along with sexually explicit references. Through her father as guardian, the girl brought an application for an order requiring the Internet provider to disclose the identity of the person(s) who used the IP address to publish the profile so that she could identify potential defendants for an action in defamation. As part of her application, she asked for permission to anonymously seek the identity of the creator of the profile and for a publication ban on the content of the profile. - 4 - Two media groups opposed the request for anonymity and the ban. The Supreme Court of Nova Scotia granted the request that the Internet provider disclose the information about the publisher of the profile, but denied the request for anonymity and the publication ban because there was insufficient evidence of specific harm to the girl. The judge stayed that part of his order requiring the Internet provider to disclose the publisher’s identity until either a successful appeal allowed the girl to 2012 SCC 46 (CanLII) proceed anonymously or until she filed a draft order which used her own and her father’s real names. The Court of Appeal upheld the decision primarily on the ground that the girl had not discharged the onus of showing that there was evidence of harm to her which justified restricting access to the media. Held: The appeal should be allowed in part. The critical importance of the open court principle and a free press has been tenaciously embedded in the jurisprudence.
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