2010 QCCA 2151, 2010 QCCA 2151

J2 Global Communications Inc. c. Protus IP Solutions Inc. 2010 QCCA 2151 COURT OF APPEAL CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-09-020615-100 ( 550-05-013775-096 ) MINUTES OF THE HEARING DATE: November 19, 2010 THE HONOURABLE NICOLE DUVAL HESLER, J.A. PETITIONER ATTORNEY TABITHA KRUIDBOS WAYNE SELMAN Mtre Dominique Ménard HEENAN BLAIKIE APPELLANT ATTORNEY J2 GLOBAL COMMUNICATIONS INC. Mtre Katheryne Desfossés IRVING MITCHELL KALICHMAN RESPONDENT ATTORNEY PROTUS IP SOLUTIONS INC. ABSENT

MOTION OF THIRD PARTY FOR SUSPENSION Clerk: Annick Nguyen Court Room: RC.18 HEARING 9:51 Commencement of the hearing. 9:52 Submission by Mtre Ménard. 9:59 Submission by Mtre Desfossés. 10:15 Rebuttal by Mtre Ménard. 10:20 BY THE JUDGE. Judgment – See page 3. Annick Nguyen Clerk JUDGMENT [ 1 ] The Superior Court has dismissed J2's Motion for an Order enforcing Letters Rogatory issued by the United States District Court for the Central District of California.

J2 has appealed that decision. [ 2 ] The third parties, who are the witnesses to be deposed, are asking that the appeal be suspended because the American proceedings have themselves been suspended, as shown by the following extracts of Exhibit R-5: WHEREAS , on October 1, 2010, this Court entered its Order re OSC:

(1) Reconsidering Order Denying Protus’ Motion for Partial

Summary Judgment,

(2) Granting Protus’ Motion for Partial

Summary Judgment, and

(3) Dismissing Protus’ TCPA Counterclaims (Docket No. 1267) (the “Order”); and WHEREAS , on October 12, 2010, j2 filed its Motion for Certification for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292 (b) (the “Motion”) […] WHEREAS , the Parties further agree that this action should continue to be stayed until the Court rules on j2’s Motion and, if an appeal is allowed, until the disposition of such appeal become final. […] b. STAY . The current stay of this action shall remain in effect pending this Court’s disposition of j2’s Motion. In the event an

interlocutory appeal is certified, the stay shall be further extended until the disposition of such appeal become final . (Emphasis added) [ 3 ] If the dismissal of the claim in the United States is maintained in appeal, or if no appeal is allowed, the depositions, obviously, will not be required and will have been a waste of time and money. [ 4 ] It is somewhat contradictory that J2 should be asking for a stay in the United States while insisting on proceeding with the depositions in Canada. [ 5 ] I believe it is in the interest of justice and in conformity with the proportionality principle (Article 4.2 C.C.P. ) to grant the Motion as per its conclusions. [ 6 ] The whole without costs.

NICOLE DUVAL HESLER, J.A.