Davydiuk v. Internet Archive Canada, 2014 FC 944

The Defendant, Internet Archive Canada (“IAC”), appealed the order of Prothonotary Aalto, who dismissed IAC’s motion for a permanent stay of the proceedings by the Plaintiff, Daniel Davydiuk (“Davydiuk”) in Ontario. The Prothonotary found that the Court had jurisdiction to hear the claim, and the circumstances in the case favoured hearing the claim in Canada. IAC argued that the matter should be heard in California.

Davydiuk commenced this action against IAC, alleging that IAC infringed his copyright by reproducing certain works on websites located on various website archive domains (e.g. the “Wayback Machine”) that he submitted are owned and controlled by IAC.

The Court heard this matter on a de novo basis, and agreed with the Prothonotary’s decision with respect to the ‘real and substantial connection’ analysis: the Court found that there is a real and substantial connection between the action and Canada. Furthermore, the Court considered the forum non conveniens argument advanced by IAC, and held that while some factors favoured California, it is “not clearly more appropriate”. Therefore, IAC failed to meet its burden.

The Court therefore came to the same conclusion as the Prothonotary, and dismissed the appeal.