Defence costs at issue in Voltage reverse class action case

OTTAWA — Lawyers representing a defendant in a reverse class action case over a copyright infringement claim are asking a federal court judge to give their client an opportunity to recover costs from the plaintiff if he's successful in his defence. The video-conference hearing Tuesday was part of an ongoing copyright infringement case brought by United States-based Voltage Pictures LLC, a movie studio that claims customers of Rogers Communications Inc. have been illegally downloading its products. Robert Salna, who was named as a defendant by Rogers after a Voltage request, is the subject of the reverse class action certification motion that potentially involves up to 55,000 others. Sean Zeitz, Salna’s counsel, argued that because his client was “unilaterally thrust” into the position as class representative, he would be unable to handle the costs of litigation if he is not reimbursed, creating an access to justice issue. And if the court rules against Salna, that would cause a ripple effect affecting the other defendants’ ability to mount a proper defence, his lawyers argued. They are asking the court to give Salna the opportunity to recover his costs at the end of the trial if he is successful in his defence. Such reverse class action suits are rare in Canada, the Wire Report reported when the case was launched last year. But Kenneth Clark, counsel to Voltage, said his client shouldn’t have to pay because this reverse class action is no different than others ones under the no-cost regime that governs class actions. One of the effects of the no-cost regime, which is in play in provinces like British Columbia, Saskatchewan and observed by the federal court, is to promote class actions by reducing barriers to certification, according to Clark. Clark argued that Salna’s personal circumstances — low potential damages award and a reasonably high cost of defending the certification motion — is not enough to be considered exceptional. Exceptional cases are normally reserved for “bad behaviour” on behalf of the plaintiff, including improper conduct and unnecessarily prolonging a proceeding, which both counsel agreed was not the issue at this point. But Zeitz argued in the reply phase that the no-cost regime, to the letter, doesn’t simply say that costs would not be awarded when exceptional circumstances are not present. Ian Kleiman, who is also representing Salna, said that his clients’ bill of costs total $141,930.75, which includes anticipated fees and anticipated disbursements. Salna is the only name in the reverse class action that Voltage has thus far asked Rogers to identify, Clark said in an email. In an application to the Federal Court of Appeal in November, Rogers is seeking to turn down Voltage’s request that would force Rogers to pay for costs associated with retrieving subscriber data.

Defence costs at issue in Voltage reverse class action case

Brief | January 31, 2017

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Defence costs at issue in Voltage reverse class action case

Brief | January 31, 2017

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