Decision

Teksavvy Solutions Inc. v. Bell Media Inc. et al., 2021 FCA 100

Justice Nadon; Justice Locke; Justice LeBlanc - 2021-05-26

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This appeal concerns an Order of the Federal Court that all parties agree is unprecedented in Canada. On November 15, 2019, Justice Patrick Gleeson issued an interlocutory Order (see 2019 FC 1432) in a copyright infringement action requiring a number of Canadian Internet service providers, including the appellant, Teksavvy, to block access to certain websites by their customers. This is known as a site-blocking order. The ISP parties’ customers make up a majority of Canadian Internet users. In addition to being unprecedented in Canada, the Order is notable because the ISPs to whom it applies are not defendants in the Action and are not accused of any wrongdoing. ... In my view, the possible remedies contemplated in subsection 34(1) of the Copyright include a site-blocking order. The real question is whether the site-blocking order granted in this case was appropriate in the circumstances. ... In my view, the general wording of section 36 of the Telecommunications Act does not displace the Federal Court’s equitable powers of injunction, including the power to impose a site-blocking order. ... In my view, it is not necessary to decide whether the Charter is engaged and, if so, whether freedom of expression is infringed. In considering the issue of freedom of expression in the context of a particular equitable remedy, it was not necessary for the Judge to engage in a detailed Charter rights analysis separate and distinct from the balance of convenience analysis that is already to be considered ... Having found no error in the Judge’s conclusion that the Federal Court has the power to grant a site-blocking order, and having likewise found no error in his analysis of the applicable legal test, I conclude that this Court should not interfere with the Judge’s decision.

Decision relates to:

 

Canadian Intellectual Property