Executive Summary: Key Legal and Evidentiary Issues

• Central to the appeals was whether Mr. Johnson’s proposed discovery questions were permitted under the Federal Courts Rules or were instead improper, irrelevant, abusive, or beyond the allowed scope.
• Another issue was whether Mr. Johnson’s motions attempted to relitigate matters already decided, including by way of a collateral attack on earlier Federal Court orders.
• Bias allegations were repeatedly advanced, but the courts found that Mr. Johnson had not provided the evidence required to establish bias.
• Security for costs was in issue under Rule 416(1)(f), together with whether Rule 417 justified refusing such security.
• Costs were also contested, including the discretion to award them, the meaning of “one set of costs”, and whether particular claimed items and disbursements were recoverable.
• On assessment, the question was whether the respondents’ invoices and materials established that the claimed travel expenses and related amounts were reasonable and necessary.

Facts of the case

On November 3, 2021, Mr. Johnson commenced a copyright infringement action in the Federal Court, docket T-1686-21. He alleged that the Canadian Tennis Association and several professional tennis players had infringed his copyright in certain photographs contrary to the Copyright Act. Although the Federal Court had case managed the action, it had not advanced much since 2021. The examinations for discovery were not completed, and the action had required the Federal Court to issue some twenty-three directions and twenty orders. The uploaded decisions concern three appeals arising from interlocutory orders made in that action, followed by a later assessment of the appellate costs awarded in those appeals.

Appeal numbered A-369-23

This appeal related to Mr. Johnson’s motion under Rule 97(b) of the Federal Courts Rules. He sought to compel the president of the Canadian Tennis Association and Mr. Félix Auger-Aliassime to answer some 64 pages of questions that, in his view, followed up from the answers that the Association and Mr. Auger-Aliassime had given on written examination for discovery. The Associate Judge dismissed the motion after concluding that Mr. Johnson was seeking a second examination for discovery, that the questions were generally irrelevant, abusive or improper, and well beyond the scope of Rule 97(b). The Associate Judge also found that the motion amounted to a collateral attack on a previous Federal Court order whereby most of Mr. Johnson’s questions to the Association and Mr. Auger-Aliassime had been either struck or revised in scope.

Federal Court and Court of Appeal disposition in A-369-23

Mr. Johnson appealed the Associate Judge’s decision to the Federal Court, arguing that the Associate Judge had demonstrated bias and erred in respect of important facts. The Federal Court held that, because the matter involved a discretionary order, intervention was available only if the Associate Judge had incorrectly decided a question of law or committed a palpable and overriding error in respect of a question of fact or of mixed fact and law. The Federal Court found no such errors. It agreed that the motion was a collateral attack and added that the motion was an abuse of process because it sought to relitigate issues already decided. It also held that Mr. Johnson had failed to adduce the cogent, convincing and substantial evidence required to establish bias. The Federal Court of Appeal also found no reviewable error. It held that nothing in the record supported Mr. Johnson’s argument that his right to a proper examination for discovery had been denied, and it found that neither the Associate Judge nor the Federal Court demonstrated bias.

Appeal numbered A-168-24

This appeal concerned a motion by Mr. Denis Shapovalov, based on Rules 99(2) and 242 of the Federal Courts Rules, seeking to strike most of the 820 written questions that Mr. Johnson wanted to ask him in written examination for discovery. In support of the motion, Mr. Shapovalov filed a refusals chart setting out the questions in issue, the basis of his objection for each question, and the revised questions that he was prepared to answer. The Associate Judge instructed Mr. Johnson to provide his submissions on each objected question in the refusals chart. Mr. Johnson provided a document, but his annotated refusals chart was not attached to it. The Associate Judge asked him again to provide the chart. Mr. Johnson then tendered his annotated refusals chart, but the Associate Judge found it improper because it provided the same generic answer to each of Mr. Shapovalov’s objections. On that basis, the Associate Judge cancelled the hearing of the motion to strike, asked for submissions on costs, and then granted the motion, striking some 808 of the 820 questions.

Federal Court and Court of Appeal disposition in A-168-24

Mr. Johnson appealed that order to the Federal Court, arguing that the Associate Judge was biased and had misapprehended the facts. The Federal Court rejected those arguments, finding that Mr. Johnson had failed to establish bias and agreeing with the Associate Judge that his responses were neither clear nor cogent and, for the most part, were repetitions of the same response or variations of it. On further appeal, the Federal Court of Appeal held that nothing turned on the failure that occurred when Mr. Johnson first downloaded his annotated refusals chart. The Court held, however, that Mr. Johnson still had to show reviewable error in the Federal Court’s conclusions and that he had not done so. It again found nothing in the record to support the allegations of bias.

Appeal numbered A-111-24

This appeal concerned a motion made by the Canadian Tennis Association, Mr. Auger-Aliassime and Mr. Shapovalov under Rule 416(1) of the Federal Courts Rules seeking security for costs. The Federal Court granted the motion. The decision explained that Rule 416(1)(f) provides that, where it appears that the defendant has an order against the plaintiff for costs in the same or another proceeding that remain unpaid in whole or in part, the Court may order the plaintiff to give security for the defendant’s costs. The Federal Court found that Mr. Johnson owed a total of $19,870.50 to the respondents in unpaid costs ordered by the Federal Court in the action and by the Provincial Court of Alberta in a similar action involving the same parties. The decision also explained that Rule 417 allows the Court to refuse to order security for costs if a plaintiff demonstrates impecuniosity and the Court is of the opinion that the case has merit, but the Federal Court did not waive security because Mr. Johnson neither alleged nor demonstrated impecuniosity.

Federal Court and Court of Appeal disposition in A-111-24

In that context, the Federal Court ordered Mr. Johnson to post $44,870.50 as security for costs. The decision states that this amount corresponded to the total of the costs that Mr. Johnson had been ordered to pay to date, the estimated costs of a 3-day trial and the costs on the motion for security for costs. The Federal Court also ordered Mr. Johnson not to take any further steps in the action until he posted the security. It further provided that, if he failed to do so within 60 days of the order, the Association, Mr. Auger-Aliassime and Mr. Shapovalov could bring an informal motion asking the Federal Court to dismiss the action. The Federal Court of Appeal saw no errors in that decision. It noted that Mr. Johnson did not deny that he had not paid the identified costs, held that Rule 416(1)(f) applied, and found that the Federal Court’s estimate of the costs related to a 3-day trial was reasonable.

Costs issues in the 2025 appeal judgment

In all three appeals, Mr. Johnson also challenged the costs awarded by the Associate Judge and the Federal Court. The Federal Court of Appeal held that decisions on costs are fully discretionary under Rule 400(1) and that it would intervene only if the Federal Court had erred in law or committed a palpable and overriding error regarding a question of fact or of mixed fact and law. It stated that intervention would be warranted only if the Federal Court had made an error in principle or if the costs award was plainly wrong. The Court found no such error. It therefore dismissed all three appeals with one set of costs calculated in the normal range, based on the middle of Column III of Tariff B of the Federal Courts Rules. The 2025 judgment did not set out the assessed dollar amount of that one set of appellate costs.

Assessment of costs in 2026 FCA 95

The later decision, dated May 13, 2026, dealt with the assessment of the costs awarded in the three appeals. It states that, by the judgment rendered on June 26, 2025, the Court dismissed all three appeals and granted one set of costs to the respondents, calculated in the normal range corresponding to the middle of Column III of Tariff B. The three respondents initiated the assessment under Rule 406 by filing one bill of costs for the three files on October 1, 2025. The Assessment Officer explained that, because the judgment had been rendered before the amended Tariff B came into force on December 21, 2025, Tariff B as it read on December 20, 2025, applied to the assessment.

Issues determined on the costs assessment

The Assessment Officer rejected Mr. Johnson’s request that the respondents be sanctioned and ordered to pay the amount they had claimed in the bill of costs, explaining that an assessment officer assesses costs pursuant to Rule 405 and cannot go beyond, or contradict, the judgment rendered by the Court. The Assessment Officer also held that the appellant’s limited resources were not a relevant factor at the assessment stage. On the bill of costs, the Assessment Officer allowed the claims under Item 22(a) and Item 26 in full, partially allowed the claims under Items 18 and 19, and disallowed the claim under Item 21(a). The reasons state that the phrase “one set of costs” applied to all items in the bill of costs, with the result that the respondents could not recover separate claims for each of the three appeal files under Items 18 and 19. In summary, the Assessment Officer allowed 14 units for assessable services, amounting to $2,520, and allowed $126 for 5% GST paid or payable by the respondents on the allowed assessable services.

Disbursements and final outcome

The Assessment Officer also considered the respondents’ claimed travel disbursements for counsel’s attendance at the Toronto hearing on June 26, 2025. The reasons state that $1,112.35 was allowed for transportation, $422.42 was allowed for accommodation, and $131.95 was allowed for meals. The reasons then state that, in summary, $1,792.72 was allowed for disbursements. Across the uploaded decisions, the successful parties were the respondents: the Canadian Tennis Association, Denis Shapovalov and Félix Auger-Aliassime. The 2025 judgment awarded them one set of costs in the appeals, but the amount was not fixed in that judgment. The 2026 assessment fixed the amount payable by the appellant to the respondents at $4,312.72. The uploaded decisions did not determine damages on the underlying copyright claim, but they also left in place the order requiring Mr. Johnson to post $44,870.50 as security for costs in the underlying Federal Court action.