Tuesday, November 26, 2019

Voltage v. Salna + ~55,000 - Costs Implications of Dismissal of Reverse Class Action Certification Motion

It will be recalled the Federal Court recently decisively dismissed Voltage’s attempt to certify a controversial “reverse class action”, in which three individuals would have presumably been forced to respond and defend a class of about 55,000 alleged infringers – each of whom might have had a different story to tell and each of whom could have opted out and none of whom could even conceivably have been on the hook for more than $5k and none of whom would have even know about this proceeding at this time.

The main lead class defendant would have been Mr. Robert Salna – who is a landlord. A couple of his tenants also got pulled in and named as proposed respondents.

The Court has curiously and rather inexplicably declined to let Mr. Salna have the $75,000 security for costs that was paid into Court due to the “exceptional circumstances” and which required a trip to the Federal Court of Appeal, in which Salna succeeded. The Court, per Justice Boswell, has simply said that:
[ 167] The $75,000 posted as security for costs will not be released at this time given Voltage's stated intention to pursue the application regardless of whether it is certified.

Not surprisingly, Mr. Salna is appealing this aspect of Justice Boswell’s ruling. Mr. Salna is also asking for solicitor and client costs, which could conceivably be even more than $75,000 for this unusual, complex and unprecedented motion in the Federal Court. Here is Mr. Salna’s Notice of Appeal.

CIPPIC played an important role in this proceeding as an intervener but did not seek costs.

It remains to be seen whether Voltage will attempt to appeal the dismissal of the certification motion.


PS January 17, 2020: For anyone following the appeals, both sides are appealing. There's been a bit of a procedural snafu, Here is the Direction of Rennie, JA dated January 17, 2020 along with a lesson in the Federal Courts Rules, which will hopefully straighten this all out.

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