Even if CIPPIC is allowed to intervene, its role may be limited both by the Court and by practical considerations. In 2004 in the ground breaking BMG v. Doe case, CIPPIC was allowed limited intervener status that specifically precluded it from cross-examining the Plaintiffs’ affidavit material or filing of further evidence.
Interveners can sometimes have considerable influence in proceedings ranging from circumstances very similar to this (e.g. CIPPIC’s intervention in 2004 and 2005 in the BMG case) and even in the Supreme Court of Canada. But interveners in court proceedings are rarely if ever in the same position in a hearing as an actual party and their role is not to duplicate or substitute for parties or respondents with full standing. In this instance, Teksavvy is not a party to the actual infringement litigation but clearly is the one and only Respondent on the Rule 238 disclosure motion. It would have had full rights to cross-examine and introduce its own evidence, should it had chosen to do so.
The BMG case would assuredly have turned out very differently if Shaw and Telus had not rolled up their sleeves and taken all reasonable steps to vigorously oppose the disclosure motion, including cross-examining on the affidavit evidence that was found to be clearly inadequate both by the Federal Court and the Federal Court of Appeal. CIPPIC did not have the status or the resources or the practical ability to do what Shaw and Telus did, even if were permitted to do so – which it wasn’t.
In any event, CIPPIC obviously does not have access to the technical information held by Teksavvy that might be relevant to the reliability of Voltage’s material and might otherwise assist the Court on the issues with which the Court is clearly concerned, such as Justice Mandamin’s reported comment that “the court needs to be well informed of the connection between IP addresses and the information Voltage has on alleged infringers.”
Ms., Dobby also reports, interestingly, that:
Based upon the above, the following seems to be clear at this time:
Based upon Ms. Dobby’s report, it would seem to be reasonably apparent that the Court wants and needs as much assistance as is necessary on what it clearly sees as an important matter that will require a special hearing of at least one day and that it may be expecting Teksavvy to actually make representations that go well beyond simply “not opposing” the motion.
Once again to be completely clear, an ISP respondent to a Rule 238 disclosure motion is fully entitled to test the adequacy of the evidence and the other factors related to privacy and PIPEDA as laid down by the Federal Court of Appeal in BMG v. Doe more than seven years ago. This includes the right to cross-examine and, if advisable, and to file its own affidavit evidence, which in turn is subject to cross-examination. Arguably, if the material is problematic, the ISP should test it and, if necessary, should oppose it. In opposing it on the BMG v. Doe grounds, there is absolutely no implication that this entails any “comment on the merits of the case” or “making a case against the merit” with respect to copyright infringement.
Hopefully, the above will restore some clarity to the public’s understanding of this potentially very important proceeding.