Court File No. 4592 / 98

ONTARIO COURT (GENERAL DIVISION)

BETWEEN:

PHILIP SERVICES CORP.

Plaintiff/Applicant

-and-

JOHN DOE 1 a.k.a. Addicted2PHV,
JOHN DOE 2 a.k.a. alreadygored,
JOHN DOE 3 a.k.a. Angelofthelaw,
JOHN DOE 4 a.k.a. Ben_Hurr98,
JOHN DOE 5 a.k.a. brokerr39 and Broker39,
JOHN DOE 6 a.k.a. Coma_Cozy,
JOHN DOE 7 a.k.a. CountBuster,
JOHN DOE 8 a.k.a. cstew,
JOHN DOE 9 a.k.a. Imm1tya,
JOHN DOE 10 a.k.a. Imshort65,
JOHN DOE 11 a.k.a. inthebunker,
JOHN DOE 12 a.k.a. mobhit,
JOHN DOE 13 a.k.a. mreecs,
JOHN DOE 14 a.k.a. Paul Palango,
JOHN DOE 15 a.k.a. PJ_21,
JOHN DOE 16 a.k.a. Realdic,
JOHN DOE 17 a.k.a. sava_urasa,
JOHN DOE 18 a.k.a. scrappym,
JOHN DOE 19 a.k.a. skeptic666 and skeptik666,
JOHN DOE 20 a.k.a. somnific_no_more,
JOHN DOE 21 a.k.a. Stucklikeglue and stucklikeglue,
JOHN DOE 22 a.k.a. SunTzu22,
JOHN DOE 23 a.k.a. THEPHVPOSTMAN,
JOHN DOE 24 a.k.a. tigerstar666,
JOHN DOE 25 a.k.a. twickewnham,
JOHN DOE 26 a.k.a. wentworth_guy,
AND PERSONS UNKNOWN

Defendants/Respondents

AFFIDAVIT OF RANDY BASTARACHE

I, Randy Bastarache, of the City of Hamilton, in the Regional Municipality of Hamilton-Wentworth,
MAKE OATH AND SAY:
1.
I am the Manager of Marketing with Weslink Datalink Corporation and have personal knowledge of matters hereinafter deposed.

2.
Weslink Datalink Corporation (hereinafter referred to as "Weslink") is in the business of providing internet access and other related services. Both individual consumers and corporations enjoy these services. Weslink carries on its business throughout the Toronto-Grimsby corridor. Throughout its operating territory, Weslink was many small and national competitors.

3.
On June 25, 1998, a letter was delivered to the attention of John Levy, the President and Chief Executive Officer of Weslink from Douglas Hodgson enclosing an Order of the Honourable Mr. Justice Borkovich of the Ontario Court (General Division) on the 24th day of June, 1998 from Douglas Hodgson. Attached hereto and marked as Exhibits "A" and "B" respectively are true copies of the June 25, 1998 letter from Douglas Hodgson and the enclosed Order of the Honourable Mr. Justice Borkovich dated the 24th of June, 1998.

4.
The Order was obtained ex parte without notice. Weslink's offices are located at 1603 Main Street West, Hamilton, Ontario and Turkstra Mazza Associates are a customer to whom we provide services.

5.
Exhibit "A" suggests Weslink is not a party to this litigation nor has it been sued. However, Weslink was not served with the Motion materials and supporting Affidavits, if any, relied upon in support of the ex parte Motion in order to obtain the Order. As such, Weslink has been unable to assess its legal rights and responsibilities including:

(a)
whether the Order was properly obtained under the Rules of Civil Procedure;

(b)
determining whether any of its competitors have been served with a similar Order;

(c)
any ability to explain to its customers that it must disclose their personal information pursuant to a Court Order;

(d)
determining its industry association's position concerning the privacy rights which may exist for its customers.

6.
On June 30, 1998, we retained the firm of Evans, Philp to act on Weslink's behalf with respect to this matter. I am advised and verily believe that on June 30, 1998 a voice mail message was left with Douglas Hodgson with respect to Mr. Justive Borkovich's Order expressing Weslink's concerns and trying to obtain information related to the Order.

7.
In a letter dated July 2, 1998, Weslink through its solicitors, forwarded a letter to Douglas Hodgson concerning the Order which had been obtained. Amongst concerns raised was the fact that Weslink has not been provided with a copy of Notice of Motion and all Affidavits or other documents used at the Motion to obtain the Order. Weslink wished to review the materials supporting the Order which was obtained from Mr. Borkovich in order to assess its legal obligations and representations made to the Court. Attached hereto and marked as Exhibit "C" is a true copy of the July 2, 1998 correspondence from Mark J. Zega to Douglas Hodgson.

8.
On July 2, 1998 at 4:59pm, a facsimile transmission of a further Order by the Honourable Mr. Justice Borkovich dated the 24th of June, 1998 was forwarded to Evans, Philp. Weslink was not served with that additional Order and were not aware of the Order until it came to the attention of our solicitor, Mark Zega, on July 2, 1998. The Order provides that the file will be sealed until such time as Examinations for Discovery ordered on June 24th, 1998 have been completed and that the service of the Notice of Action in the above matter and the Notice of Motion herein be dispensed with until further Order of the Court. Attached hereto and marked as Exhibit "D" is a true copy of the Order of the Honourable Mr. Justice Borkovich dated the 24th of June, 1998.

9.
I verily believe that it is unfair to have no opportunity to review the Motion Record utilized by Philip Services Corp. (hereinafter referred to as "Philip") in obtaining the Court Order. Weslink has not information as to the representations made to the Court as to either its involvement in this matter or whether Weslink may at some point be added as a party in this or future actions by Philip.

10.
Weslink is concerned about the potential negative impact on its business if it is required to comply with the Order as issued. It is not in Weslink's business interests to release confidential information concerning its customers or their usage patterns unless legally obligated to do so. Weslink's reputation and therefore its ability to continue to attract new customers and retain existing customers will be damaged if it is not permitted to communicate with its customers to explain the circumstances under which it is ordered to release information that customers may have provided to it in confidence.

11.
Internet access is not exclusive to the individual who has contracted the service from Weslink. A large number of Canadians share internet access accounts with family members, friends, or work colleagues. In many instances, small offices will make individual internet access available to its employees

12.
The release of Weslink's customer's information may or may not be relevant to the proceeding brought by Philip. However, Weslink is unable to assess what its obligations may be, given its lack of knowledge about representations upon which the Order was obtained.

13.
I verily believe that the Orders of Mr. Justice Borkovich are unduly broad, oppressive, and unjust with respect to Weslink which is a non-party to this proceeding. The said Orders result in unfairness to Weslink. Weslink relies upon a number of grounds including the following:

(a)
Weslink is being deprived of its legal rights to be apprised of representations made to the Court in obtaining these Orders so that it may assess its legal rights and responsibilities.

(b)
Weslink is unable to ascertain the validity or accuracy of the representations made to the Court in order to obtain this Order.

(c)
Weslink is being denied its rights under the Canadian Charter of Rights and Freedoms including its right to freedom of association to contact other member service providers and its national association to determine the industry's position with respect to Weslink's obligation to its customers.

(d)
Weslink is prevented from communicating with its customers for the purpose of advising that personal information provided by Weslink is only being disclosed because of the requirements of a Court Order.

14.
I verily believe that Weslink's business interests are being unfairly compromised by the unduly broad, oppressive, and unjust nature of the Orders. I verily believe that if not all service providers in the Regional Municipality of Hamilton-Wentworth are under the same obligation that Weslink may lose customers who subsequently discover Weslink produced personal and private information to Philip without Weslink being able to communicate the reason for such disclosure.

15.
I verily believe that by disclosing information which may have been provided by customers in confidence that Weslink may be exposed to legal proceedings from its customers unless it is able to communicate that it is disclosing such information pursuant to a legal Court Order.

16.
I verily believe that the requirements of natural justice require that Weslink be apprised of any representation which may affect Weslink's legal rights and obligations and be given an opportunity, if Weslink so desires, to respond to those representations before being subjected to a Court Order.

17.
I verily believe that Philip's litigation against internet users has been publicly disseminated in the newspaper media. I verily believe that the balance of convenience does not support Weslink being bound by a non-disclosure obligation concerning the Order for litigation which Philip appears to have disclosed publicly at their own initiative. Attached hereto and marked as Exhibit "E" is a true copy of a newspaper article from the Hamilton Spectator published on June 9, 1998.

18.
I have sworn this Affidavit for no improper purpose in support of Weslink's Motion to amongst other things set aside the Orders of Mr. Justice Borkovich.

SWORN before me at the City of Hamilton,
in the Regional Municipality of Hamilton-Wentworth,
this 3rd day of July, 1998.

_____(signed)_____
A Commissioner, etc.
MARK J. ZEGA

       )
)
)
)
)
)
)
       _____(signed)_____
RANDY BASTARACHE