Court File No. T-2058-12

FEDERAL COURT

BETWEEN:

VOLTAGE PICTURES LLC Plaintiff

- and -

JOHN DOE AND JANE DOE Defendants

- and -

TEKSAVVY SOLUTIONS INC. Responding Party

- and -

SAMUEL SON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC

Intervener

NOTICE OF MOTION

TAKE NOTICE THAT THE RESPONDING PARTY, TEKSAVVY

SOLUTIONS INC. ("TekSavvy") will make a motion appealing the order of Madam

Prothonotary Aronovitch dated March 17, 2015 (the "Order") to the Court, on a date

to be set by the Court, at Ottawa.

THE ESTIMATED DURATION of the hearing of the appeal motion is four

hours.

THE MOTION IS FOR:

(a) an Order varying paragraph 1 of the Order so as to award TekSavvy its

reasonable legal costs, administrative costs and disbursements as

claimed in its Bill of Reasonable Legal Costs, Administrative Costs and

Disbursements (save for the costs associated with the adjourned hearing

before Justice Mandamin, which request was withdrawn);

(b) in the alternative to (a), an Order varying paragraph 1 of the Order so as

to award TekSavvy such additional portion of its reasonable legal costs,

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administrative costs and disbursements as this Honourable Court deems

just and appropriate;

(c) an Order setting aside paragraph 3 of the Order and awarding

TekSavvy its costs of the hearing before Prothonotary Aronovitch;

(d) the costs of this appeal motion; and

(e) such further and other relief as counsel may advise and this Honourable

Court deem just.

THE GROUNDS FOR THE MOTION ARE:

(a) the moving party, TekSavvy, is a relatively small telecommunications

service provider based in Chatham, Ontario that provides Internet

service provider ("ISP") services, among other services;

(b) on November 14, 2012, the Plaintiff, Voltage Pictures LLP

("Voltage"), commenced an action alleging that unidentified "Doe"

Defendants had engaged in illegal file-sharing over the Internet and had

thereby infringed copyright held by Voltage in various cinematographic

works;

(c) Voltage claims to have identified Internet Protocol (IP) addresses

associated with those alleged copyright violations and determined that

some were IP addresses that had been assigned to the Responding

Party, TekSavvy and were thus associated with ISP customers of

TekSavvy;

(d) on November 1, 2012, Voltage provided TekSavvy with draft motion

materials containing a list identifying over 4,500 IP addresses

(subsequently reduced to slightly over 2,100 IP addresses), for which

Voltage sought subscriber information from TekSavvy, an innocent

third party;

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(e) TekSavvy took the position from the outset that it would not disclose

customer account information without a Court order so requiring and

without appropriate privacy safeguards. TekSavvy also advised

Voltage, inter alia, that it would be a substantial undertaking for

TekSavvy to identify the IP addresses, and that it would require the

dedication of significant resources away from the normal operations of

TekSavvy's business;

(f) Voltage's motion seeking disclosure of personal subscriber information

was adjourned twice and was ultimately heard before Prothonotary

Aalto on June 25, 2013;

(g) in Reasons for Order and Order released on February 20, 2014, 1

Prothonotary Aalto ordered, inter alia, that "[a]11 reasonable legal costs,

administrative costs and disbursements incurred by TekSavvy in

abiding by this Order shall be paid by the Plaintiff to TekSavvy".

Prothonotary Aalto also ordered that "[a]ny dispute regarding those

costs can be resolved by the Case Management Judge";

(h) on March 14, 2014, Madam Prothonotary Aronovitch was appointed

case management judge; 2

(i) at the direction of Prothonotary Aronovitch, the issue of the reasonable

legal costs, administrative costs and disbursements incurred by

TekSavvy was addressed through a motion brought pursuant to Rule

406, with such modifications as the circumstances required;

(j) the motion with respect to these costs was heard before Madam

Prothonotary Aronovitch on December 8, 2014;

Amended on February 16, 2015; the amendments are not relevant to the within motion. 2 On March 23, 2015, Prothonotary Aalto was appointed case management judge in place of Prothonotary Aronovitch.

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(k) TekSavvy filed a detailed Bill of Reasonable Legal Costs,

Administrative Costs and Disbursements, supported by affidavit

evidence, that itemized costs totalling $346,480.68, including costs

related to, inter alia:

(i) information technology administrative costs incurred by

TekSavvy in correlating the IP addresses, including the

implementation of new systems designed specifically to respond

to Voltage's request and the Order of Prothonotary Aalto;

(ii) operational administrative costs incurred by TekSavvy in

communicating with its customers to respond to concerns

related specifically to the Order of Prothonotary Aalto and

Voltage's request, including increased staffing requirements

directly attributable to same;

(iii) legal costs and disbursements incurred by TekSavvy in respect

of Voltage's motion, both before and after the hearing of the

motion before Prothonotary Aalto; and

(iv) disbursements reasonably incurred by TekSavvy to "harden" its

infrastructure in response to a Directed Denial of Service attack

occurring as a direct result of Voltage's motion;

(1) Voltage took the position that TekSavvy was not entitled to any costs

whatsoever or, alternatively, was entitled to no more than $884.00;

(m) on March 17, 2015, Madam Prothonotary Aronovitch released her

Order and Reasons for Order, awarding TekSavvy a total of $21,557.50

as its "legal costs, administrative costs, and disbursements of abiding

with" Prothonotary Aalto's Order, and in doing so:

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(i) disallowed all of TekSavvy's claim for reasonable legal costs

save $4,500 associated with certain communications pertaining

to a technical issue related to the list of IP addresses;

(ii) disallowed all of TekSavvy's claim for operational

administrative costs;

(iii) disallowed $10,035.00 of TekSavvy's information technology

administrative costs;

(iv) disallowed all of TekSavvy's claim for disbursements; and

(v) declined to award costs of the Rule 406 motion in favour of

TekSavvy;

(n) the decision of the Learned Prothonotary to disallow the large majority

of the legal, administrative and disbursement costs incurred

TekSavvy's was based upon a wrong principle, an error of law and/or

misapprehensions of the fact that cannot reasonably be supported by

the evidence, and in particular, the Learned Prothonotary erred in:

(i) improperly interpreting the scope of Prothonotary Aalto's

decision and the relevant Norwich order jurisprudence,

including the purpose and nature of costs to which an innocent

third-party respondent is entitled in the context of a Norwich

order;

(ii) improperly relying on irrelevant jurisprudence to justify

excluding TekSavvy's costs;

(iii) concluding that Prothonotary Aalto did not intend to entitle

TekSavvy to its costs of the motion before him or, alternatively,

concluding that Prothonotary Aalto did not intend to have the

case management judge address the costs of the motion before

him;

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(iv) refusing to accept submissions regarding what had been

requested and/or spoken to at the hearing of the motion before

Prothonotary Aalto;

(v) refusing to allow certain of TekSavvy's costs, including all of

TekSavvy's operational administrative costs, on the basis that

such were merely the "costs of doing business" and, as such,

could not be recovered;

(vi) refusing to allow the vast majority of TekSavvy's legal costs,

including all costs of its counsel Christian Tacit, thereby

effectively negating Prothonotary Aalto's specific and express

reference to TekSavvy's entitlement to its "legal costs";

determining that she could not calculate TekSavvy's legal costs

for the motion itself within the Federal Courts Rules tariff;

(viii) failing to provide adequate reasons for disallowing some or all

of the costs claimed in TekSavvy's Bill of Reasonable Legal

Costs and/or providing reasons that fail to support the decision

to disallow such costs; and

(ix) refusing to award TekSavvy its costs of the motion before her,

including, but not limited to, unreasonably criticizing TekSavvy

for its cost request and failing to consider the factors

enumerated under Rule 400 of the Federal Courts Rules

regarding costs;

(o) Rules 3, 4, 35, 51, 358-371, 400, 401 and 407 of the Federal Court

Rules;

(p) such further and other grounds as are set out in the evidence and written

representations filed in support of this motion; and

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(q)

such further and other grounds as counsel may advise and this

Honourable Court may permit.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the

hearing of the motion:

(a) the Bill of Reasonable Legal Costs, Administrative Costs and

Disbursements of TekSavvy, including supporting documentation;

(b) the Affidavit of Marc Gaudrault, sworn June 27, 2014;

(c) the Affidavit of Pascal Tellier, sworn June 27, 2014;

(d) the Affidavit of Pierre Aube, sworn July 3, 2014;

(e) the Transcript of Cross-examination of Marc Gaudrault, October 8,

2014, and the exhibit thereto;

(f) the Transcript of Cross-examination of Pascal Tellier, October 8, 2014;

(g) the Transcript of Cross-examination of Pierre Aube, October 8, 2014;

(h) the Affidavit of Barry Logan, sworn July 30, 2014, and a selected

exhibit therefrom;

(i) the Affidavit of Steven Rogers, sworn July 31, 2014 (without exhibits);

(j) the Affidavit of John Philpott, sworn July 31, 2014 (without exhibits);

(k) the Transcript of Cross-examination of Barry Logan, October 9, 2014,

and the exhibits thereto;

(1) the Transcript of Cross-examination of Steven Rogers, October 9,

2014, and the exhibit thereto;

) the Transcript of Cross-examination of John Philpott, October 9, 2014;

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(n) the Statement of Claim in Court File No. T-2058-12, filed November

14, 2012;

(o) the Order and Reasons for Order of Justice Mandamin, dated January

18 and January 31, 2013;

(p) the Amended Order and Reasons for Order of Prothonotary Aalto,

dated February 16, 2015;

(q) the Order and Reasons for Order of Madam Prothonotary Aronovitch,

dated March 17, 2015;

(r) the transcript of the hearing held before Prothonotary Aronovitch on

December 8, 2014; and

(s) such further and other evidence as counsel may advise and this

Honourable Court may permit.

March 27, 2015 44'

STIKEMAN F t'io LP Banisters & Solicitors Suite 1600, 50 O'Connor Street Ottawa, Ontario MP 6L2

Nicholas McHaffie Alex Sarabura Tel: (613) 234-4555 Fax: (613) 230-8877

Solicitors for the Responding Party, TekSavvy Solutions Inc.

TO: THE REGISTRAR

AND TO: BRAUTI THORNING ZIBARRAS LLP 151 Yonge Street, Suite 1800 Toronto, ON M5C 2W7

AND TO:

P. James Zibarras John Philpott Tel: (416) 362-4567 Fax: (416) 362-8410

Lawyers for the Plaintiff, Voltage Pictures LLC

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

Lawyers for the Intervener, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC)