Appeal of Decision of Prothonotary Ordering Production of Contact Information from Internet Service Provider Results in Partial Costs Award to Appellant

  • December 09, 2015

Voltage Pictures LLC v. John Doe 2015 FC 1364 (Annis J.)

December 9, 2015

James Zibbaras and Adam Weissman of Brauti Thorning Zibarras LLP, for Voltage Pictures LLC (Plaintiff)
Nicholas McHaffie and Bram Abramson of Stikeman Elliott LLP, for Teksavvy Solutions Inc. (Responding Party)

This decision arose from a motion brought by Voltage Pictures LLC (“Voltage”) to dismiss an appeal made by Teksavvy Solutions Inc. (“TekSavvy”) in relation to an underlying motion brought by Voltage under Rule 238 of the Federal Courts Rules (the “Rule”). Pursuant to the Rule, Voltage made an application that compelled TekSavvy, as an un-related party, to produce the names of subscribers that Voltage had identified as having infringed their copyrights.

The appeal made by Teksavvy concerned the Costs Order made by Prothonotary Aronovitch (the “Aronovitch Order”) in the underlying motion. Upon reviewing the reasonable legal, administrative and disbursement costs incurred by Teksavvy as a result of complying with Voltage’s request, the Aronovitch Order ordered Voltage to pay costs to TekSavvy in the amount of $21,577.50 (the “Costs Order”). Teksavvy appealed this Costs Order and requested that: 1) the Costs Order be varied; or 2) in the alternative, that the Costs Order be varied in a manner that allowed for additional amounts to be awarded to them. In addition to this, Teksavvy sought an order that awarded them additional costs related to the (then present) hearing.

Upon review of the relevant law and facts, the Court allowed the appeal in part, awarding Teksavvy an additional $11,822.50 in costs. The appeal failed in part due to the Court’s affirmation of Prothonotary Arnovitch’s assessment and because the Court ruled that an innocent party does not have a right to consequential losses or to “be made whole, fully indemnified or compensated” on a “but-for damage-like causation basis” for all of the costs incurred with a Norwich-type order. Instead, Norwich orders that allow parties to gain crucial information prior to litigation generally entitle parties such as TekSavvy the right to be compensated for any costs incurred in the motion.

The appeal was allowed in part with no costs awarded for the motion.

By: Bria Brown, Carscallen LLP