Voltage Pictures, LLC v Salna, 2023 FC 893
In a matter that has been ongoing for at least six years, the Federal Court has once again declined to certify a reverse class action proposed by Voltage Pictures, LLC.
While the Court affirmed that reverse class actions were available in the Federal Court pursuant to Rule 334.16, it found that Voltage had not met the test required for certification.
This decision is the second time the Federal Court has refused to certify the proposed reverse class action. The Court previously concluded that none of parts of the test for certification had been met (see: 2019 FC 1412). Voltage was successful on appeal, with the Court of Appeal finding that Voltage had met at least three of the five criteria set out in s. 334.16: (a) a reasonable cause of action; (b) an identifiable class; and (c) common issues, the final two points were referred back to the Federal Court (see 2021 FCA 176).
In this reconsideration, the Court noted two remaining concerns that were ultimately fatal. First, the representative defendant raised concerns with the funding of defence counsel, and the Federal Court confirmed that “[t]he funding of class counsel is of paramount importance” (at para. 54).
Second, the Court did not accept Voltage’s proposed use of the notice-and-notice regime to communicate with class defendants, finding that “…Voltage’s proposed use of the notice-and-notice regime to advance this class proceeding is inconsistent with the Copyright Act, and is contrary to law.” (at para. 65)
Despite these concerns, the Court confirmed that Voltage was at liberty to reapply to certify the class action—so it’s likely this is not the end of the story.
For a full copy of the decision, see here.