No More Words, It’s Time For Action

Our family was one of the first to be contacted by Minister MacLeod’s staff to engage in a preliminary consultation process with her Ministry. Our family has since rescinded that invitation as a result of discriminatory and unorganized policy coming from MacLeod’s office and most recently from the Premier Ford himself. Our family believes that unless there is a 180 degree turn on the use of age caps, and new leadership is presented on the autism file, that any consultations will be a waste of our time. Time better spent on taking care of our severely autistic son. The below was sent to our contact within Macleod’s Ministry office explaining in detail why our family will not take part in these consultations going forward:

Mr. Lockridge,

The Government of Ontario has now upended and rebuilt the autism system of supports twice in less than 3 years. This has added an abundance amount of stress on caregivers, and children including mine. Stress that has manifested itself in now chronic health conditions to which I now suffer. Simply put, I’m not sure anything I say will change the level of understanding needed to ensure that families in the future are not burdened with the extra work load and stress in dealing with policy makers who don’t understand (or take the time to) what’s taking place on the ground after years of consultation, and are making policy decisions that do not reflect any understanding of the amount of stress and work we are already engaged in when caring for kids and adults with challenges. Unfortunately this lack of understanding still reins pretty high up the chain right up to the premier’s office on a recent phone call with a parent of two kids on the spectrum and I cannot commit to working with the Ministry or this government under such ignorance that was recently displayed by Premier Ford himself:

Minister MacLeod and her staff over the past several weeks have made extremely derogatory comments against families who are under a tremendous amount of stress, along with those who are supporting them. The information I handed to Ms. Mulroney was for all purposes my family’s legal position. I have not seen any of the recommendations from this presentation implemented. There has been a tremendous lack of information from the Ministry on announced changes which is adding to the stress of not being able to plan ahead. This includes a lack of information on SSAH. During my presentation to Ms. Mulroney, I’ve recommended that any further consultations be transparent. I have not seen any willingness to provide any transparency on these consultations. The government has also refused to walk back on its discriminatory age caps.

I filed a “Notice of Intent” with Mr. Colin Aitchison about 1 ½ weeks ago giving the government until April 1st to implement my recommendations, and revert back to the old OAP while we work collaboratively on reducing the wait lists. This was to limit the liability currently on government for freezing the wait lists due to discriminatory policy. The fact that the Ministry is sending me a junior policy advisor barely out of diapers, rather than dealing with the governments lawyers – since a vast majority of the work ahead will be on ensuring the government stops discriminating against our most vulnerable and their families, and ensuring the government is properly accommodating individuals with disabilities – is telling in itself.

With the amount of consultations that have been done previously, if the Government of Ontario simply can’t get what it’s doing to families and vulnerable children when you up end the autism support regime, than maybe it’s time a Superior Court Justice weighs in on that, rather than wasting everyone’s time going through consultations that will not likely yield balanced policy as a result of continued ignorance.

Should the Ministry in the near future find itself under new leadership with the goal of ensuring policy is non-discriminatory, you may contact me again and I’d be more than happy to provide further input as an expert analyst in complex systems and as a user of the system. Until then what I have to say, needs to be said in front of a judge to ensure an expert amount of care is given when dealing with policy changes surrounding our most vulnerable. I quite simply trust our judiciary more than I trust The Government of Ontario at present, especially after the linked call with Ford above.


Kids With Autism Deserve Responsible Leadership

February 13, 2019 1 comment

(Caroline Mulroney and Myself After Our meeting)

We are constituents of Caroline Mulroney. I have a son who is 14, who just started to receive autism therapy under the new Ontario Autism Program. The government’s announcement last week on autism services will see my son lose his therapy. The government announced that for kids over the age of 6, they would be providing $55,000 lifetime amount for autism therapy. The Ford Government is only allowing families to use $5,000 of that per year, for therapy that costs $80,000/year.

After taking to social media in response to being snubbed by one of Mulroney’s staff that went viral, Mulroney agreed to meet with our family. We explained to her that we’ve had a tremendous amount of difficulty obtaining the little support we have, because we were purposely left out of the loop on supports we qualified for. We had an outside consultant come in to assess our families needs in 2017, to find out that our case managers and NGOs were intentionally not telling us about services and supports we qualified for, which landed my family in crisis for years while waiting for this therapy. Prior to 2016 our family had significant difficulties in getting placed on the wait list for autism therapy despite several requests over a 6 year period to do so.

We had a significant period of time where our son was going through meltdowns almost every two hours. This included yelling, screaming, hitting, biting, and self-injury. He was sent home on occasion from school, because the behaviors got so bad. As a parent, this time of our lives was our own version of hell. Having to watch my child in such emotional distress, and not being able to comfort him and protect him and to tell him everything will be okay, was a really horrible thing to go through. Both my wife and I have suffered health wise as a result of this. We went through 3 long years of this consistently being told there’s no intimidate help. We did put him on medications to try and get these behaviors down to something manageable. The medications did help “a little”.

We finally got on the provincial wait list for therapy in August 2016, and we were one of the first families in York Region to enter the Ontario Autism Program in March 2018. We chose the direct funding option. What direct funding is, is essentially the government pays for the autism therapy through a private provider which is what the government is currently offering for us to do at $5,000/year. Upon shopping around for a private provider, there isn’t very many in York Region to choose from. Most of them are based in Richmond Hill, Markham which would be extremely difficult to get to. Only one of these providers would do in home therapy sessions, and we didn’t feel this provider was a match for our family and the budget we were provided at the time. So we chose the direct service option, which is where the therapy is provided by provincially funded organizations. We started our therapy through direct service provider in August of 2018.

Since August we’ve had huge gains in communication and toileting which have been the priority. His aggressive and self-injury behaviors have decreased. Our next goal, which is now up an in the air is to get him communicating words. I’ve never heard my child say “Dad I love you”. Under the governments current plan as announced, that will not happen. I will never hear those words from him. I’m also concerned about going back into our own personal hell again as a result of him losing a lot of what he has gained in 6 months. This therapy needs to be maintained and we haven’t received it for long enough that it he will hold on to what he’s learned let alone learn other skills such as talking. He’s now much bigger, and it’s going to be very difficult for us to care for him at home without this therapy.

All of the above was communicated to Mulroney in detail as I presented these issues to her. She listened and was taking notes. Based on our experience I presented the following concerns recommendations to her.

Concerns with Governments Approach:

– While I recognize that early intervention is important, those whom haven’t had that opportunity as a result of the significant lack of accountability in the prior system should not be thrown under the bus. The government has a responsibility under law to accommodate based on need, not age.

– $5,000/year under the announced changes for autism therapy will NOT meet our family’s needs nor be beneficial to our son

– Our son will regress without the intensity he is currently receiving under current therapy making it extremely difficult to care for him in home.

– There is a lack of private providers in York Region and across the province. The government’s current approach will clear the public wait list, only to put these kids on other wait lists with other private providers as a result of the lack of capacity. This will significantly impact kids in service now. Gains made in service will be lost, and this will defeat the government’s current objective to get these kids the help they need ASAP.

Policy Recommendations:

Crisis Management and Prevention

– In 2016 the people of Ontario sent a strong message to the Wynne Liberals and to all political parties to properly fund this therapy. Reducing that funding for this critical therapy was seen unethical then as it is now. The resolve of the tax payers around this hasn’t changed since 2016. Doug Ford promised he would continue to support autism families during the election by looking strait into the camera and saying he was behind all of us 1000%.

As such I would recommend for an immediate reinstatement of the Liberal Ontario Autism Program (OAP) which was worked on by families, experts, and in a by-partisan way from input by all political parties. Up and until Patrick Brown resigned, the PC party was committed to that plan. All three parties were committed to providing the necessary funding during the election to ensure that the OAP remained in place. (autism debates). You made a commitment to the tax payers to support us. Keep it! The OAP was not bankrupt, it was 3 months old when the election happened and it was waiting for commitments that your government made during the election to keep it up and running.

– Referrals to the OAP need to be electronic and done on the back end.

– For wait listed families. I recommend the government create a Rapid Response Crisis Intervention team (RRCI) that will be able to assist with the immediate needs of the family AT HOME and current future funding and in home supports, while waiting for the provincial ABA to kick in. This team should include an outside consultant to ensure that the family is being properly supported, as required under the provinces legal responsibilities. High risk kids, such as those with self-injurious and aggressive behaviors should be receiving immediate funding for in home supports/services regardless of age, until long term ABA support is secured.

– While there is definitely a need for more training of staff in schools, it should not be at the expense of FAMILY SUPPORTS. I am concerned that the education unions are using parent protests to position themselves ahead of families like mine, and the support we need in home. I would recommend that the priority going forward is on supporting families, however I do recognize the need for investments in education as well. I would also ask as part of this an immediate amendment to the education act REQUIRING the school boards to allow ABA into the classroom regardless of where that ABA is coming from. I am extremely concerned that without this amendment that ALL ABA treatment for school aged children will be disrupted, further putting families back into CRSIS!

– I also highly recommend the government set up a public committee to work in a transparent and bi-partisan way to address the problem of reducing the wait lists, and legislating meaningful accountability mechanisms rather than building a system of supports in the smoky back rooms of Queen’s Park. I believe strongly that stakeholder organizations and NGOs that refuse to make their comments public and on the record in a matter of public policy and within the public interest, should not be advising government at this time. The autism community on whole requested public transparency in the implementation committee for the OAP under the Liberals plan through the Ontario Autism Coalition which failed to produce results. Members of the implementation committee were tied to non-disclosure agreements, and the community received minutes of meetings sometimes months after these meetings took place.

– I would be happy to testify before such a committee as a parent who has lived the broken system of supports and provide further evidence of what we’ve had to deal with as a family when asking for help.

– Moving forward the government’s approach needs to be sustainable and respects its legal obligations to autistic children and adults. We can not keep going through a system overhaul every few months, and putting families and their kids through crisis after crisis. Stop it. This is emotional exhausting and it’s talking its toll on everyone involved.

After the presentation was finished. Mulroney pointed out that my recommendation on the Rapid Response Crisis Intervention team, was very similar to something they are working on in their plan for autism services. The term she used was a “family navigator”. This was also part of the liberal autism plan, but I stressed the need for this role to be expanded and meaningful to families moving forward.

I got the impression from Mulroney that as of now, they will not be going back to the plan under the Liberals. Mulroney made a commitment to not just our family, but also others in the same situation that no matter what system is set up and in place, that the government will ensure that it is properly accommodating families moving forward. Mulroney observed my son in an autism therapy session for a little bit.

At the end of the meeting, came something I did not expect and it was a very human moment. Mulroney came up to me, gave me a really big hug, and said to me “You’re an excellent father, don’t let anyone else tell you any different.” I replied almost in tears “You’re an awesome lady, don’t let anyone else tell you any different.” This to me alone suggested that we got through to her. It’s very hard to explain to people who don’t know what it’s like living with autism or for that matter caring for a person who is disabled. All MPPs should take the time to observe these kids in home, in therapy and listen to all of our concerns. Mulroney also stated that she will be hand delivering our recommendations to Minister of Community and Social Services Lisa Macleod.

We made a commitment to working with Mulroney’s office to ensure our family moving forward is properly accommodated. Mulroney stated that she is also meeting with several other families in the very near future to discuss their individual concerns as well. I’m cautiously optimistic, but I will not support any plan that puts any family into further crisis.

Whatever the answer is, it’s going to require responsible leadership moving forward, and I have serious doubts on whether or not that’s going to happen under Minister Macleod. I think Macleod has lost the public confidence on this issue, and she keeps trying to spin it around how great she is, rather than actually walking back a bit and listening to us parents. Recently Autism Ontario has distanced itself from MacLeod’s plan, and rather than focusing on building a coalition to come together in building a plan that is supportive of our vulnerable kids, MacLeod is publicly threatening experts that do not come in support of it. That is not an example of responsible leadership.

UPDATED: Attorney General Asked To Probe Ministry of Community and Social Services

February 24, 2019 Leave a comment

During our meeting with Mulroney two weeks ago I brought up several concerns in the system that her office is currently investigating regarding the lack of accountability with NGO’s us parents have to deal with on a day to day basis. Last night leaked documents have revealed that the Ministry of Community and Social Services has intentionally inflated the autism wait lists in an attempt to sell the governments new program to the public and attack political opponents. The Ministry has also attempted to hide this from families ordering NGOs to keep all of this confidental:

The following was sent to Caroline Mulroney’s executive assistant last night on behalf of our family:

Under counsel’s advice, I’m granting you a one weeks extension with respect to your written submission to me in light of recent documents (attached) that have become available. I requested a compliance audit through the Ministry of Community and Social Services on YSSN in late 2018. You should be aware of those communications since I’m sure I copied you on them. Your office is also aware that the Ministry of Community and Social Services is on record directing me NOT to communicate with Ms. Mulroney on our issues. I would ask that a full compliance audit not only be considered on YSSN but also with respect to Kerry’s Place and the actual Ministry of Community and Social Services.

Should your office fail to produce compliance audits on all three entities, I have instruction from our counsel to personally deliver our statement of claim to the Attorney General’s office at Queen’s Park on March 7th, 2019.

You are to confirm a compliance investigation has been initiated on all three entities, or referred to the proper legal authorities by not later than the end of the business day, March 4th, 2019. Failure to comply will result in legal action against the Attorney Generals office.

Please govern yourself accordingly.

Jason Koblovsky

UPDATE 2/26/2019: Update from Mulroney’s office is as follows:


My Response:

Hi MaryLynn,

Thanks for the response. You have a duty to report. I’ll see the attorney general next week.

Jason Koblovsky

Autism Dad’s Open Letter To Ontario’s Attorney General

September 11, 2018 Leave a comment

Ms. Mulroney,

As a parent with a kid who has severe autism, I am deeply concerned about the government’s use of the notwithstanding clause suspending the Charter of Rights and Freedoms. Premier Ford in his presser on September 10th, hinted that he would be willing to use this clause outside of the issue with Toronto City Council. In a further television interview later that day on CP24, Premier Ford announced that the province is in a “financial disaster”. I am concerned that your government will use the notwithstanding clause to circumvent the rights of our most vulnerable children in order to balance the budget. Our children are already in a humanitarian situation as a result of a support system that is broken, lacks accountability and treats our families and children as adversarial. I have provided copies of documentation with supportive evidence to Amy Fee’s office, and what our family is currently going through with respect to support and service.

I am concerned that the government will not fix this system of supports to ensure that it respects our children’s fundamental human and constitutional rights, and may be moving to circumvent those rights in order to push forward its mandate to balance the provincial budget. A concern I expressed directly too you during the last election, and most recently to your staff who also made me aware they also have children who are autistic, and are also concerned about this latest move by Ford to use the notwithstanding clause and suspend the charter. We need a government that respects the rule of law, and respects the will of the people, and most importantly respects our independent judiciary to which upholds our most fundamental rights and freedoms. Once you suspend the rights of one group of people, you open up the door to suspending the rights of anyone on any given issue. This is why the notwithstandingclause is very rarely used, and when used done so in a thoughtful careful way.

I hope that your government will reconsider this move to use the notwithstanding clause, and ensure that the rights of all Ontarioians are respected in policy and legislation moving forward during your term as my MPP and the provinces attorney general.  I look forward to meeting with you to discuss how we can achieve the mandate of fiscal restraint, and at the same time respecting the very fundamental constitutional rights our system of government is tasked to uphold.

Warm Regards,

Jason Koblovsky

Teksavvy vs Voltage File Sharing Case Back in Court This Week

November 9, 2015 Leave a comment

Teksavvy and Voltage were back in court today exclusively over costs.  As some of you may remember, movie studio Voltage is seeking the identity of ISP Teksavvy users who allegedly shared the movie “The Buyers Club” over peer to peer file sharing networks.  Voltage wants to sue the Teksavvy users over copyright infringement, and Teksavvy was ordered to provide the info of users identified by Voltage sharing their movie.

This case will set a precedent for the telecom industry in Canada on how copyright complaints will be dealt with in the future.  As many of you remember I’ve commented a great deal on this case.  A summery of the policy debate I was a part of regarding this case, and how Teksavvy should have done a lot more to protect it’s customers privacy is here.

In this latest development, it appears that no technical challenge (or any legal challenge) of the evidence is going to be argued by Teksavvy.  Instead “new evidence” is apparently being filed to justify Teksavvy’s costs to take no position in court on the case.  Costs that the court found were excessively high.  IP Lawyer Howard Knopf’s most recent blog on this, is again another must read if you are following the case.  In it Knopf not just criticizes Teksavvy’s legal position but also questions CIPPIC’s role in the case stating:

Although CIPPIC is no longer actively involved on the file, the appeal material was eventually posted here by CIPPIC  late last week and this will be helpful to the public discussion generally and to law students in particular.  It will be recalled that CIPPIC stepped in earlier as an intervener, after Teksavvy took the position that it took no position, and sought adjournments so that CIPPIC could enter the fray. CIPPIC’s role was never entirely clear. It explicitly disclaimed any role in acting for Teksavvy or for the John or Jane Does. It did conduct some cross- examination and referred to the “hearsay” issue – the giant elephant in the room – in its written material in the disclosure motion but did not do so explicitly even once in its oral submissions before Prothonotary Aalto as confirmed by the transcript Teksavvy is trying to file. This may somewhat explain why Prothonotary Aalto’s decision does not once mention the word “hearsay”.

Knopf also went on to say:

According to the transcript of the substantive hearing before Prothonotary Aalto, CIPPIC was apparently more concerned more with broad “public policy” issues than with the more practical question of whether, in light of the BMG decision, there was arguably insufficient substantial, admissible, non-hearsay, and reliable evidence to justify denial of the disclosure motion and thereby stopping the case from even moving forward.

Questions on both Teksavvy and now CIPPIC as to why this case has gone this far when it didn’t have to, and Teksavvy customers privacy assured.

Teksavvy vs Voltage Going to Appeals

Teksavvy has filed an appeal on costs in the latest legal battle over file sharing in Canada involving Voltage pictures.  Copyright Lawyer Howard Knopf has written an excellent blog regarding the privacy implications of what has taken place to date, and has a different take on the privacy implications of the previous court decision than Micheal Geist. Knopf worte:

I must respectfully and explicitly disagree, which I rarely do, with Prof. Michael Geist; however, I must do so about this case. He has been very supportive of TekSavvy throughout. He had a blog the other day entitled “Defending Privacy Doesn’t Pay”.  In my view, it would be more accurate to say that defending privacy can and does pay if done vigorously and out of principle – both in terms of legal costs and subscriber good will. Moreover, full indemnity legal costs are very rarely recovered in Canadian litigation. Responsible ISPs should expect to incur some non-recoverable legal costs for defending their customers’ privacy as part of their “cost of doing business”. Indeed, speaking generally and not necessarily about this case, it’s arguable that ISPs have a positive duty to actually oppose ill-founded motions for disclosure and that failing to do so could expose them to liability – but that’s another topic for another day.

Knopf’s blog is a must read for those who are following the case regardless of the position you have taken.  Knopf also points to an article in which lead legal council for Voltage is implying that Voltage may seek “actual” costs when going after downloaders which I find extremely interesting:

Zibarras explained that plaintiffs in piracy cases can opt for statutory damages or actual damages. The former are awarded automatically once it’s been proven in court the defendant actually did download the movie. The latter, actual damages, take into account how much money the production company may have lost due to the downloading and subsequent distribution.

In 2013 the US’s first file sharing case involving Jamie Thomas-Rasset made it’s way up the appeals process to the supreme court.  Thomas-Rasset was sued $222,000 for sharing 24 songs, in which her lawyer found that amount to be rather excessive and punitive, and wanted the case to be closer to the “actual” damages that occurred.  The Obama administration filed an interesting defense under which it defended the $222,000 ruling stating essentially that if actual damages were sought, than it would leave copyright holders unable to enforce their rights under law, and the US Supreme Court should not hear the case.  The Obama admin stated in the briefing:

“The public interest cannot be realized if the inherent difficulty of proving actual damages leaves the copyright holder without an effective remedy for infringement,”

The US Supreme Court decided not to hear the case and sided with the Obama admin.  This is why those following this case need to be properly informed.  Both Teksavvy and Voltage have their own interests, all of which seem to be trying to manipulate the public view to their advantage, which does nothing to properly inform those Teksavvy customers affected.  It’s an unfortunate situation, one I hope stops in the appeals process, or at least the courts can rise above all of this.

Judge Issues Scathing Decision on Costs in Teksavvy vs Voltage

March 18, 2015 1 comment

The judgement around costs in the Teksavvy vs Voltage court case is now in.  This is one of the first copyright file sharing cases in Canada to make it to the courts since our new copyright laws were passed.  As some of you may remember Teksavvy was asking for court costs of $346,480.68 for the disclosure of subscribers names, while Voltage was asking to pay Teksavvy for just under $900 for those names.  Both parties also brought up this blog in court.  Teksavvy added time in its costs docket for reading it, while Voltage couldn’t look past one post I had criticizing the costs associated with IP correlation. I had some choice words in December for both parties, and today the Judge in this case weighed in ordering Teksavvy only $21,557.50 in total costs.

Micheal Geist wrote today on the cases in a blog titled: “Defending Privacy Doesn’t Pay: Federal Court Issues Ruling in Voltage – TekSavvy Costs“:

With TekSavvy now bearing all of those motion costs (in addition to costs associated with informing customers), the decision sends a warning signal to ISPs that getting involved in these cases can lead to significant costs that won’t be recouped. That is a bad message for privacy. So is the likely outcome for future cases (should they arise) with subscribers left with fewer notices and information from their ISP given the costs involved and the court’s decision to not compensate for those costs.

I disagree with this statement when looking at the whole picture and decision.   This seems to be a balanced decision on how both parties acted in this case. I believe Teksavvy could have done a much better job at defending its customers privacy than it has to date.  This decision seems to be a rather scathing view from the courts on the evidence, merits, and costs argued by Teksavvy. I don’t see how defending hearsay evidence can be beneficial to promoting subscribers privacy in court by both parties!  The judge in my view acted in a very balanced way as a result of the evidence presented in the case and the law in place surrounding costs.

The full judges decision is here.  Below I will be posting some points I found interesting in the decision with some commentary.

The prosiding judge was Prothonotary Aronovitch.  In her opening statement on the decision Aronovitch wrote:

 [9] TekSavvy’s interpretation of the Order’s meaning is too expansive, Voltage’s too narrow. Neither position, in my view, is justifiable on the evidence or at law.

For it’s part, Teksavvy presented to the court as a defense of costs, that the case generated huge amounts of public interest.  Teksavvy wanted compensation as a result of their decision not to oppose the order, to which seemingly generated a huge uptake in calls into Teksavvy by angry subscribers:

[23] TekSavvy’s provides evidence to the effect that Voltage’s motion generated considerable interest and concern among TekSavvy’s then-current subscribers, potential subscribers, and the general public. This resulted in a massive increase in telephone and online inquiries, comments and complaints to TekSavvy. Gaudrault says that in the days before the December 17, 2012 return date of the motion, at one point TekSavvy was receiving 4,000 to 6,000 calls per day, of which 90 percent were related to Voltage, had as many as 200 telephone calls in queue for response, and had employees working overtime to field inquiries.

The above should be of concern to all ISPs.  Subscribers are very concerned about their privacy and how each ISP handles it.  It seems as though not opposing the court order really pissed off Teksavvy customers.  A wound in my opinion that was self inflicted.

Something that came out of this ruling as well, is that all three parties Teksavvy, Voltage, and Canipre were subjected to a DDoS attack on December 15th, 2012.  Teksavvy attributes this to the public interest generated in the case, thus has asked for compensation for it:

[24] Gaudrault attests to the fact that the attention and interest generated by Voltage’s motion was also manifested in a much more negative way. TekSavvy, Voltage, and Canipre were each victims of distributed denial-of-service (DDoS) attacks, in which hackers disable a website or online business by manipulating a huge number of computers to flood a targeted host with communication requests. Given the targets (TekSavvy, Voltage, and Canipre) and the timing of the attacks (which started on December 15, 2012), Gaudrault attributes the DDoS attack to the Voltage motion.

I strongly disagree with anyone who would use DDoS attacks to express frustration about this case.  Anyone disagreeing with the way all three parties have handled things, should speak up.  That’s what I’ve been doing throughout this whole process providing alternate views to the public on the case, which is something Openmedia started to do, then retracted.  I think those supporting Openmedia, should have voiced their strong concerns to this consumer group, and put this consumer group (who is supported by Teksavvy) in a position to negotiate with the ISP on it’s stance as it relates to public interest.  That is a much more proactive approach, and consumer groups need to learn they should not be influenced in any way by telecom providers!

The next bit is a bit of legalese.  From paragraphs 36-39 of the decision Teksavvy is trying to make an argument within law that they should be compensated for ALL costs associated with this case, not just the order to produce. Aronovitch stated:

[41] I find no support for that view in the jurisprudence or Prothonotary Aalto’s Order. More to the point, TekSavvy has produced no cases where, in similar circumstances, costs have been ordered to be paid, or assessed to be paid, on that basis.

So essentially Teksavvy’s lawyers didn’t convince the judge they should be entitled to all costs associated with this case within law.  On the now infamous Norwich orders, in which some Teksavvy supporters have stated publicly in the past was the reason why this case was different, and why Teksavvy could not oppose the motion (my emphasis added):

[49] While a Norwich order remains a discovery remedy that is out of the ordinary, orders requiring ISPs to provide contact information for their subscribers are not new or uncommon, whether in the context of the posting of defamatory materials (York University v Bell Canada Enterprises (2009), 99 OR (3d) 695 (Sup Ct) (York University); Pierce v Canjex Publishing Ltd., 2011 BCSC 1503, 27 BCLR (5th) 397 (Pierce)), or of alleged infringement of intellectual property rights (BMG; Voltage Pictures LLC v Jane Doe, 2011 FC 1024, 395 FTR 315 (Voltage 2011)). Indeed, TekSavvy acknowledges that the only uncommon aspect of Voltage’s motion is in the number of IP addresses that are identified.

Presumably, if the Norwich orders are not uncommon regarding subscribers information, there should be ample amount of case law out there to defend against them as well.

Paragraphs 54 – 55 the judge explains that the previous judge who ordered Teksavvy to disclose the information did not state that Teksavvy was entitled to full costs outside of the court order:

[54] I ascribe no special significance to the fact that Prothonotary Aalto identifies three heads of costs to be reimbursed. The legal costs, the administrative costs, and the disbursements he identifies are not independent costs, they are recoverable only insofar as they are directed to and incurred for the purposes of “abiding by this Order” to produce the requested subscriber information. There is no basis in the jurisprudence or in Prothonotary Aalto’s reasons to give any broader scope or meaning to the plain language of his order.
[55] Had Prothonotary Aalto intended TekSavvy to be compensated, in full, for any costs that it would have incurred “but for the motion” or “in connection with the motion,” I am confident he would have so ordered.

The judge goes on to explain that her decision on costs will than be based on evidence provided and what she deems as reasonable:

[56] I will proceed on the basis that the costs which Voltage is required to reimburse are limited to those incurred in abiding with the Order, that is, to locate and produce the required contact information of the subscribers identified by their IP addresses. It remains to be determined, on the evidence, what those costs are and whether they are reasonable, by which I mean “reasonably necessary” to give effect to the Order (Fontaine v Canada (Attorney General), 2012 ONSC 3552 at para 7).

Teksavvy provided notice to affected customers.  Teksavvy supporters noted that the notice provided was separate from what other ISPs were doing and the ISP should be patted on the back for it.  Well, Teksavvy tried to claim costs on those notices stating that it was essential to weed out any false accusations, and to let affected customers obtain legal council.  Based on the evidence the judge disagreed with Teksavvy, however awarded Teksavvy for the costs of “rechecking” the IP addresses only if the identity of the affected subscriber can be proven (my emphasis added):

[64] While the Court has the discretion to order a party to give notice, the Rules do not require TekSavvy to have provided notice of the motion to its affected clients. TekSavvy acted voluntarily and on its own initiative. Whether it acted out of altruism or self-interest is irrelevant.

[65] I do not accept the argument that the notice served to verify the correlation as it led to a more accurate identification of affected customers, and that the resulting costs should therefore Page: 19 be subsumed in the costs of abiding with the Order. This appears to be an explanation after the fact. Notice was not given to ensure the accuracy of the correlation. There is nothing in the notices or in the exchanges of counsel to suggest that the purpose of the notice was anything other than to inform subscribers of the motion and to provide them with an opportunity to seek legal advice, or to appear at the motion.

[66] That said, the costs incurred from rechecking and correcting information following the notice would be recoverable, if identified and proven.

Teksavvy should be applauded for notifying its customers, however the court disagreed that they should be awarded full compensation for such.  That’s going to have interesting results going forward with future cases.  This is the only privacy concern I can see, however what sets apart others from the rest of the pack (and the more noble thing to do) on privacy should be those that incur costs to do the right thing, rather than leaving their subscribers in the dark. Unfortunately the telecom industry is increasingly less likely to do that as a whole, so this does become a concern.

Regarding Teksavvy’s legal costs.  The judge took exception of how Teksavvy’s lawyers were billing, and award only $4,500 in legal fees (my emphasis added):

[77] Finally, I need not comment on the entries to Stikeman Elliot’s bill that are on account of “Reviewing draft and revised press releases,” “Reviewing and revising draft blog posts,” and “Review talking points; interviews; conference call re media lines,” to name a few. These and other similar items are irrelevant to the implementation of the Order and not recoverable.

I’m glad that the court agrees that Teksavvy isn’t entitled to costs for reading my blog!

[78] I also need not comment on the evidence of Philpott taking issue with the manner in which TekSavvy or its counsel allegedly drove up these costs as I have had no reference to the evidence.
[79] Having reviewed the bill of legal costs, I am satisfied that the following legal costs alone fall within the scope of the Order: the costs of McHaffie’s communication with counsel for Voltage concerning time zones or timestamp information necessary to carry out the correlation and those of reviewing and providing advice on Prothonotary Aalto’s Order. I fix these at $4,500.00.

The judge goes on to question the administrative costs associated with the order, citing only “estimates” were provided, and a lot of those costs were not related to the implementation of the court order.

[81] Gaudrault says that Tacit’s retainer by TekSavvy “in the relevant period” was monthly rather than hourly. Tacit did not himself provide a bill of costs or time sheets in relation to his services. Rather, Gaudrault attaches “estimates” of Tacit’s monthly costs for advice with respect to Voltage’s motion, including representing TekSavvy in the litigation as co-counsel, and giving advice related to customer communication, IT issues, call centre issues, and privacy matters. Neither specific tasks, nor the time at which they were performed or the length of time it would have taken to complete them, are identified.

[82] Most of the items identified are unrelated to the implementation of the Order. Tacit’s advice or involvement related to the performance of the look-up or correlation exercise required to locate accurate contact information for TekSavvy subscribers cannot be identified or determined on the evidence. I do not comment on whether any cost items might be excluded due to overlap with items also claimed by Stikeman Elliott. VI.

Voltage had objected to the “estimates” provided by Teksavvy on administration costs.  Teksavvy employee’s apparently didn’t submit time sheets (my emphasis added):

[97] On the first ground regarding hearsay, Voltage makes several points. First, Gaudrault and Tellier did not themselves do the work of correlating the IP addresses. As revealed on crossexamination, it was Misur, not the affiants, who created the appendix setting out the hours of work. Gaudrault’s and Tellier’s evidence is therefore inadmissible hearsay. Additionally, the times noted in the appendix as well as the hourly rates are merely estimates as TekSavvy employees did not keep time sheets or time logs of the work that was done. Finally, the individuals who carried out the work did not produce their own evidence even though they had direct personal knowledge of the facts.

Paragraphs 107 – 113 deal with the judge basically throwing out Voltages notion on the very low cost amount of administration costs of close to $900, stating that Voltages experts were not familiar with Teksavvy’s systems.  One of the main admin costs I objected to on this blog that Teksavvy filed for what was the purchase of a new computer system to handle the court order.  The judge on that:

[114] The Order does not distinguish between the correlation and the systems necessary to carry it out. The adaptations to TekSavvy’s look-up process were necessary to effect the required correlation and, in my view, its costs are thereby encompassed by the Order. Put another way, in this respect Voltage has to take TekSavvy as it finds it.
[115] While TekSavvy may have derived a benefit from the situation, TekSavvy will not be able to claim the costs of its upgraded correlation process again in the context of future requests. What’s more, if such costs are to be excluded, it is up to the parties to see that the cost order reflects their intentions.

Finally the court arrived at a sum of $17, 057.50 for administration costs provided to the court by Teksavvy, and flat out rejected the notion that Teksavvy be allowed to recover costs associated with not opposing the motion and having to deal with upset consumers.  The court finds that to be a regular business expense:

[118] In sum, having reviewed TekSavvy’s claim for technical administrative costs, I find that it has proven costs in the amount of $17,057.50. In arriving at this sum I have excluded costs of “Preparation of information for court” and one half of the costs of “Second check/QA verification” as these were not identified and supported by evidence. Moreover, at the hearing of the motion, TekSavvy failed to explain what was meant by “QA verification.”

A. The “operational” administrative costs of implementing the Order
[119] Under this heading, TekSavvy seeks to recover the sum of $81,524.12 for expenses incurred in communicating with affected and non-affected subscribers and the public; creating an online portal tool for the use of subscribers; and responding to a higher volume of inquiries and complaints. The claim, including overtime, is on account of the work performed by supervisors and staff in the e-services department, at the call centre, and in the marketing department.

[120] These tasks, which Gaudrault refers to as “work relating to TekSavvy’s reputational impact,” are, in effect, TekSavvy’s costs of marketing, promotion, and customer relations, which I consider to be TekSavvy’s costs of doing business. Consequently, I disallow these costs. I do not consider them recoverable as they are unrelated to the identification and production of the required customer information, and fall outside the ambit of the Order.

In conclusion the court has found that both parties were way out there on their costing of disclosure.  It’ll be interesting to see how or even if there will be an appeal and on what basis.  The court quite clearly called out Teksavvy here for the evidence provided for costs.  To my non-lawyer eyes, the judgement on costs (while low) seems to fit with the evidence provided in the case, and the decision seems balanced within that respect.

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