Court File No.

T-1486-19

FEDERAL COURT

BETWEEN:

ALLARCO ENTERTAINMENT 2008 INC.

Plaintiff

- and -

STAPLES CANADA ULC, STAPLES CANADA INC., STAPLES CANADA

HOLDINGS, LLC, STAPLES CANADA HOLDINGS III, LLC, STAPLES
PROMOTIONAL PRODUCTS CANADA, LTD., BEST BUY CANADA LTD.,
BEST BUY MEDICAL SUPPLIES (CANADA) INC., BEST BUY MATTRESS
COUNTRY CANADA LTD., LONDON DRUGS LIMITED, CANADA
COMPUTERS INC., JOHN DOE CUSTOMERS 1 TO 50,000
Defendants

NOTICE OF MOTION
(Motion to Strike, for Particulars, for Production of Documents, and for an
Extension of Time to File Statements of Defence)

TAKE NOTICE THAT the Defendants, Best Buy Canada Ltd., Staples
Canada ULC, London Drugs Limited and Canada Computers Inc. (collectively,
“4Stores Defendants”) will make a joint motion to the Case Management
Judge, to be assigned, at a time and place to be set by the Court.

The estimated duration of the motion is: 1 day.

THE MOTION IS FOR:

1. An order pursuant to Rule 206 of the Federal Courts Rules requiring the
Plaintiff to provide copies of the following documents referred to in the
Statement of Claim dated September 11,2019 (“Claim”), within 15 days
from disposition of this motion, or such additional time as the parties
may agree to in writing:

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(a) all “audio-video recordings” referred to in paragraph 35 of the

Claim; and

(b) all “letters” referred to in paragraph 58 of the Claim.

2. An order pursuant to Rule 221(1) of the Federal Courts Rules striking

out the following paragraphs of the Claim that contain allegations and
assert causes of action over which the Federal Court has no jurisdiction,
such as allegations that the defendants have intentionally interfered with
the economic and business relations of the plaintiff, and allegations that
the actions of the defendants constitute an unlawful conduct conspiracy:

(a) paragraph 1(g); paragraph 1(p); paragraph 1(h); paragraph 1(q);

paragraph 45, paragraph 46, paragraph 51, paragraph 52,
paragraph 53, paragraph 54, paragraph 57, and paragraph 61
(conspiracy allegation).

3. An order pursuant to Rule 221(1) of the Federal Courts Rules striking

out the following paragraphs of the Claim that contain allegations that
are immaterial, redundant and otherwise vexatious, and that will
prejudice or delay the trial of this action and otherwise abuse the
process of this Court:

(a) Allegations of “theft”, “stealing” and “pirating”, including at

paragraphs 1(k), 8, 11, 12, 21,22, 24, 25, 27, 28, 29, 30, 37, 54,
55, 56, 57, 59, and the heading “John Doe Customers are
stealing” above paragraph 31;

(b) Allegations of “bait and switch tactics” used to “deceive, confuse

and mislead” customers, at paragraph 24;

(c) Allegations of “intentional interference with economic and

business relations”, at paragraphs 1(g), (p), 45-47, and 57-58;

(d) Allegations of “unjust enrichment”, at paragraphs 1(i) and 48-49;

(e) Allegations of “conspiracy”, at paragraphs 1(h), (q), 51-54, and

61;

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(f) Allegations of “counseling to commit an offence”, at paragraph

55;

(9) Allegations of “public nuisance” at paragraph 59 and the heading

“Public Nuisance and importing infringing content” above
paragraph 61;

(h) Unspecified allegations of “high handed and advertently

misleading conduct” at paragraph 60, unless those allegations
are specifically particularized for each 4Stores Defendant;

(i) Unspecified allegations of “criminal passing off’ contrary to s. 408

of the Criminal Code, at paragraph 62;

0) Unspecified allegations of buying, receiving or detaining military

stores owned by Her Majesty contrary to s. 420 of the Criminal
Code, at paragraph 62;

(k) Unspecified allegations contrary to unspecified provisions of the

Combating Counterfeit Products Act, at paragraph 62; and

(I) Allegations regarding trademarks and passing off, including

allegations under sections 7, 20 and 22 of the Trademarks Act,
and particularly with respect to paragraphs 1(n), (o), (r), 42-44,
56 and 62 of the Statement of Claim, as the Plaintiff’s alleged
trademarks have not been identified.

4. An order pursuant to Rule 181 of the Federal Courts Rules requiring the
Plaintiff to provide further and better particulars of the allegations in the
Claim that are identified below:

(a) the so-called “Pirate Devices”, including which “internet

streaming devices” comprise the “Pirate Devices”, and including
the identity of the manufacturer(s) of all such devices;

(b) the “equipment and devices” allegedly used or intended be used

as radio apparatus for the purpose of receiving the Plaintiff’s
encrypted subscription signal;

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(c) the “Plaintiffs programming”, the “Plaintiffs Programming”, and

the “Infringing Content” which are not defined in the Claim;

(d) the specific “cinematographic works” and any other works which
the Plaintiffs Works consist of and for which the Plaintiff claims
that copyright subsists;

(e) the identity of the authors of the Plaintiffs Works and what
country the author was, at the date of making each of the
Plaintiffs Works, a citizen or subject of, or ordinarily resident in;

(f) the dates on which each of the Plaintiffs Works were created;

(g) the manner in which the Plaintiff obtained rights to the Plaintiffs
Works and the terms of any agreements by which the Plaintiff
acquired the rights in the Works, and whether the rights were
acquired in accordance with Section 13(4) of the Copyright Act]

(h) the Plaintiffs technological protection measures alleged to have

been circumvented;

(i) the Plaintiffs “programming suppliers” and such suppliers’

technological protection measures alleged to have been
circumvented;

G) when, and in what manner, each of the 4Stores Defendants

allegedly:

(i) manufactured “Pirate Devices”; and

(ii) circumvented the “technological protection measures” to

be identified in accordance with (h) and (i), above; and

(k) the “John Doe Customers”, if any, currently known to the Plaintiff.

5. An order pursuant to Rule 181 of the Federal Courts Rules requiring the
Plaintiff to provide further and better particulars of the following specific
allegations in the Claim:

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(a) Paragraph 7:

(i) the “websites”, “call centers”, “social media arrangements”

and “applications” allegedly operated by the 4Stores
Defendants, and the manner in which they relate to the
causes of action pleaded; and

(ii) the “teams of persons” who are alleged to attend or go to

locations including homes of customers, and the manner
in which they relate to the causes of action pleaded.

(b) Paragraph 8, if it is not ordered struck:

(i) who allegedly configured the “Pirate Devices” to allow the

viewing of the Plaintiff’s Programming without paying for
it;

(ii) what applications, add-ons and/or other services were

allegedly used in configuring the devices that enable acts
of infringement; and

(iii) what actions each of the 4Stores Defendants has

allegedly taken for the purpose of enabling acts of
copyright infringement, or as improperly pleaded in
paragraph 8, “to encourage or induce” customers to view
the Plaintiff’s Programming without paying for it.

(c) Paragraphs 20 and 21:

(i) the specific “Internet Streaming Devices” which are the

subject of this action;

(ii) the specific actions, if any, the 4Stores Defendants took to

program the Internet Streaming Devices;

(iii) which of the “Plaintiff’s Programming” has been viewed

without authorization and without being paid for; and

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(iv) the dates on which the Plaintiffs Programming were

streamed on the Internet Streaming Devices sold by the
4Stores Defendants.

(d) Paragraphs 21,22 and 23:

(i) the manner in which each of the 4Stores Defendants

offered for sale, sold, or leased “Pirate Devices” to
Customers, including whether the Plaintiff objects to online
sales or only in store sales, and in context of in store sales,
the dates of such acts and the individuals involved in such
acts;

(ii) the manner in which each of the 4Stores Defendants

advised, educated, encouraged, induced, enabled,
coached or directed Customers to purchase the “Pirate
Devices”, including the dates of such acts and the
individuals involved in such acts;

(iii) the manner in which each of the 4Stores Defendants

advised, educated, counseled, encouraged, directed,
induced, enabled and authorized John Doe Customers to
download, install and operate services that result in the
operation of the “Pirate Devices”, including the dates of
such acts and the individuals involved in such acts; and

(iv) the manner in which the 4Stores Defendants advised,

educated, counseled, encouraged, directed, induced,
enabled and authorized John Doe Customers to
download, install and operate services that enable the
John Doe Customers to access Infringing Content.

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(e) Paragraph 28, if it is not ordered struck:

0) the pirated programming referred to;

(ii) the manner in which it is alleged each of the Defendants

deployed and operated “Pirate Devices” and showed
pirated programming in their stores;

(iii) the dates on which each of the Defendants showed pirated

programming in their stores; and

(iv) the locations of the stores which allegedly showed pirated

programming.

(f) Paragraph 30, if it is not ordered struck, particulars of any specific

infringements allegedly perpetrated by each of the 4Stores
Defendants, known to the Plaintiff, including particulars of:

(i) the dates of each specific infringement; and

(ii) the steps each of the 4Stores Defendants took to

perpetrate the specific infringements.

(9) Paragraph 30, if it is not ordered struck, particulars of any specific

infringements perpetrated by each customer, known to the
Plaintiff, including particulars of:

(i) the dates of each specific infringement; and

(ii) the acts each of the customers took to perpetrate the

specific infringements and the causal connection to the
4Stores Defendants’ actions.

(h) Paragraph 35, particulars of all “audio-visual recordings”, unless

copies of said recordings are ordered produced under Rule 206.

(i) Paragraph 36:

(i) the works referred to, including whether these are the
Plaintiff’s Works;

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(ii) the infringements committed by the John Doe Customers,

including the dates of such infringements;

(iii) the manner in which the 4Stores Defendants induced John

Doe Customers to directly infringe the Plaintiff’s copyright
in its works; and

(iv) the manner in which the 4Stores Defendants influenced

John Doe Customers to commit an infringement which
would not otherwise take place.

(j) Paragraph 38:

(i) the manner in which the 4Stores Defendants have

marketed the “Pirate Devices” as being for the purposes
of circumventing a technological protection measure.

(k) Paragraph 39:

(0 the programming distributed by the Plaintiff and the

manner in which the Plaintiff distributes such programming
to subscribers, to the extent such programming is the
subject of this action;

(ii) the dates on which the Plaintiff distributed the

programming that is the subject of this action; and

(Hi) the purpose for the alleged offer for sale that is said to be
contrary to section 10(1)(b) of Radiocommunication Act
(i.e., identify the subsection(s) of section 9 the Plaintiff
relied upon).

(I) Paragraph 50:

(i) what steps the 4Stores Defendants took to induce and/or

influence John Doe Customers to infringe the Plaintiff’s
copyright; and

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(ii) the circumstances by which the 4Stores Defendants knew

that such influence would result in infringing acts by the
John Doe Customers.

(m) Paragraph 58, particulars of the letters written by the Plaintiff,

including the contents of the letters, the dates on which the letters
were sent, and the addressees of the letters, unless copies of
said letters are ordered produced under Rule 206.

(n) Paragraph 61, if it is not ordered struck:

(i) the specific “copyrighted works” alleged to have been

imported by the Defendants;

(ii) the identity of the authors of the “copyrighted works” and

what country the author was, at the date of making each
of the “copyrighted works”, a citizen or subject of, or
ordinarily resident in;

(iii) the date on which each of the “copyrighted works” was

created;

(iv) what steps the 4Stores Defendants are taking to import

such “copyrighted works”;

(v) the copies or substantial portion or portions of the said

works allegedly imported by the Defendants; and

(vi) the facts establishing the Defendants’ knowledge or a

basis that the Defendants should have known the said
copies or portions infringe copyright or would infringe
copyright if they had been made in Canada.

6. In the alternative that any of the allegations set out in paragraph 3 above
are not struck, full particulars of each of the said allegations.

7. An Order requiring the Plaintiff to file an amended Statement of Claim

reflecting this Court’s Order as to striking the allegations set out in

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paragraph 3 above, and pleading all material facts including the

particulars requested above, or in the alternative providing the
particulars requested above by way of letter to be filed with the Court,
within 15 days from disposition of this motion, or such additional time as
the parties may agree to in writing.

8. An Order pursuant to Rule 8 of the Federal Courts Rules extending the

time within which the 4Stores Defendants may serve and file Statements
of Defence until thirty (30) days following the later of either the
disposition of this motion, or the date when the Plaintiff has served all of
the documents and particulars that may be ordered by this Court.

9. Costs of this motion to the 4Stores Defendants in any event of the

cause, in a lump sum amount as the Court deems just in all the
circumstances, payable forthwith, or in the alternative costs to the
4Stores Defendants on such other basis as this Court may determine.

10. Such further and other relief as this Honourable Court may deem just.

THE GROUNDS OF THE MOTION ARE:

1. The Plaintiff commenced this action on September 11,2019.

2. On September 27, 2019, the 4Stores Defendants wrote to the Plaintiff

requesting that it voluntarily amend the Claim to strike the paragraphs
outlined above and to particularize the allegations outlined above.

3. On October 21, 2019, counsel for the Plaintiff responded, advising that
the Plaintiff would not provide the 4Stores Defendants with the “audio­
video recordings” referred to in paragraph 35 of the Claim unless the
Defendants agreed to keep the recordings confidential. Specifically,
Plaintiffs counsel insisted that:

i.e. no one is to see them except members of your firm and

employees of your clients who have agreed to confidentiality.
This confidentiality mandate will remain in place until a) I have
waived the confidentiality b) I have filed them with the Court
or c) pursuant to a Court Order [emphasis in original].

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The Plaintiff also refused to provide copies of the “letters” referred to in

paragraph 58 of the Claim, and instead took the position the Defendants
know what “letters” are being referred to.

4. The balance of the Plaintiff’s letter did not (i) provide the particulars
requested by the 4Stores Defendants, (ii) address the Defendants’
concerns regarding the jurisdictional issues raised by certain of the
Plaintiff’s allegations, and (iii) address the frivolous, vexatious and
abusive pleadings noted above.

5. In response, the 4Stores Defendants wrote to the Plaintiff on October

23, 2019, advising that they would not agree to the “confidentiality
mandate", and that should the Plaintiff intend to assert the recordings
are confidential, it would need to bring a motion pursuant to Rules 151
and 206(b) of the Federal Courts Rules.

6. The Defendants have not yet pleaded in response to the Claim.

Motion for Documents

7. The Claim refers to specific documents in paragraphs 35 and 58. It is

not possible for the 4Store Defendants to respond meaningfully to the
allegations based on these documents without seeing the documents.
The Plaintiff is required to produce these documents pursuant to Rule
206, and has refused to do so.

Motion to Strike

8. The Claim contains a number of allegations that are not within the
jurisdiction of the Federal Courts, as set out in paragraph 2 above.
These allegations must be struck.

9. The Claim contains a number of allegations that are immaterial,

redundant and otherwise vexatious, and that will prejudice or delay the
trial of this action and otherwise abuse the process of this Court, as set
out in paragraph 3 above. These allegations must be struck.

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10. In support of the motion to strike these allegations, the 4Stores

Defendants rely upon Rule 221 of the Federal Courts Rules.

Motion for Particulars

11. The Claim contains numerous bald allegations that are unsupported by
any material facts, as outlined in paragraphs 4 and 5 above.

12. If paragraphs 8, 21,22,28, 30 and 61 of the Claim are not struck, further
and better particulars of said paragraphs are required, for the reasons
set out above.

13. Without the requested particulars, the 4Stores Defendants do not know
the case they have to meet and how to plead in response thereto.
Particulars are clearly warranted.

14. The 4Stores Defendants rely upon Rules 3, 174, 181, 206 and 221 of
the Federal Courts Rules.

Extension of time

15. The 4Stores Defendants require additional time to file their Statements
of Defence. An extension of thirty (30) days is appropriate in the
circumstances, following the later of either the disposition of this motion,
or the date when the Plaintiff has served all of the documents and an
Amended Statement of Claim with the particulars that may be ordered
by this Court.

16. The 4Stores Defendants rely upon Rule 8 of the Federal Courts Rules.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing

of this motion:

1. The pleadings and proceedings herein;

2. The Affidavit of Lori-Anne DeBorba, to be sworn;

3. The Affidavit of Alana McMullen, to be sworn; and

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4. Such further and other material as counsel may advise and this
Honourable Court may permit.

Date: October 28, 201 irC

BE RE SKIN & PARR LLP
Barristers Solicitors
40th Floor, Scotia Plaza
40 King Street West
Toronto, ON M5H 3Y2
Jonathan Colombo
E: icolombo@bereskinparr.com
Amrita V. Singh
E: asinqh@bereskinparr.com
Tel: 416-364-7311
Fax: 416-361-1398
Solicitors for Best Buy Canada Ltd.

BAKER MCKENZIE LLP

181 Bay StreeJ/Suite 2100
Toronto, ON M5J 2T3
Jim Holloway
Tel: 416-863-1221
Fax: 416-863-6275
E: iim.hollowav@bakermckenzie
Solicitors for Staples Canada ULC

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ORTON ROSTFULBRIGHT CANADA LLP

jV 1 800—510 West Georgia Street
Vancouver, BC V6B 0M3
Christopher S. Wilson
Tel: 604-641-4841
Fax: 604-646-2548
E: chris.wilson@nortonrosefulbriqht.com
Solicitors for London Drugs Limited

r di CRIMSON WRIGHT LLF

19'9 Bay^StreetfSuite 2200
Commerce Court West
Toronto, ON M5L 1G4
Ted A. Kalnins
Tel: 416-777-4008
Fax: 844-670-6009
E: tkalnins@dickinson-wriqht.com
Solicitors for Canada Computers Inc.

TO: CHIEF ADMINISTRATOR

Courts Administration Service

AND TO: KWM LAW PROFESSIONAL CORPORATION

3 - 200 Memorial Avenue
Suite 111
Orillia, ON L3V 5X6
K. William McKenzie
Tel: 705-323-5833
Fax: 705-482-0648
E: lawverbill@roqers.com
Solicitors for the Plaintiff

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