Court File No.

T-948-22

FEDERAL COURT

B E T W E E N:

THE GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO, ROBERT

GAZZALE, LISA KRAMER, and AI TANIGUCHI

Plaintiffs/Defendants by Counterclaim

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EASY GROUP INC. d/b/a EASY EDUCATION, EASY 4 EDUCATION CANADA

INC., EASY 4.0 EDUCATION INC., EASY 4.0 EDUCATION UTSC INC.

Defendants/Plaintiffs by Counterclaim

AMENDED STATEMENT OF DEFENCE AND COUNTERCLAIM

1. The defendants, Easy Group Inc. d/b/a Easy Education, Easy 4 Education Canada
Inc., Easy 4.0 Education Inc., and Easy 4.0 Education UTSC Inc. (collectively, “Easy
Edu”), admits the allegations in paragraphs 2 to 9, 14 to 16, 18 to 19, 21, 22, 32 to 36, the
first sentence of paragraph 39, paragraph 51, the second sentence of paragraph 55, and
paragraphs 64 and 65 of the plaintiffs’ Statement of Claim (the “Claim”).

2. Easy Edu has no knowledge of the allegations in paragraphs 13, 17, 20, 23, 24, 27
to 29, 59, and 60 of the Claim and puts the plaintiffs to the strict proof of the allegations
therein.

3. Easy Edu denies each and every other allegation in the Claim except as expressly
admitted herein.

4. Easy Edu denies that the plaintiffs are entitled to any relief requested in the Claim.

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5. Easy Edu agrees that this action be held in Toronto, Ontario.

6. To the extent any of the following assertions are deemed inconsistent with another,
the same should be understood as being presented as alternatives.

A. OVERVIEW

7. The plaintiffs would have this Honourable Court believe that Easy Edu's business
is selling copies of “University Course Materials.” In reality, Easy Edu's business is
providing otherwise unavailable Chinese-language tutoring services for Mandarin-
speaking students. In providing these services, Easy Edu’s tutors create original tutoring
materials.

8. Easy Edu does not copy whole or substantial portions of the plaintiffs’ PowerPoint
presentations, lecture slides, course syllabuses, or lecture notes. To the extent Easy Edu
has used any materials, such as portions of term tests, Easy Edu’s activities are protected,
among other things, by the user rights enshrined in the fair dealing provisions of the
Copyright Act. In fact, the plaintiffs have championed the very same rights they now seek
to deny to the defendants.

9. Despite this misguided action by the plaintiffs, Easy Edu’s tutoring services
complement the plaintiffs’ interests. Easy Edu’s services address an unmet need (a need
created by the University’s own admission policies) – providing academic assistance to
students who speak Mandarin as a first language and experience systemic cultural barriers
at the University of Toronto in higher education.

10. The plaintiffs have also made false and misleading public accusations that have
caused the defendants significant harm, while demonstrating ignorance of the challenges
faced by a major racialized constituency of its student body.

B. BACKGROUND

a. Easy Edu

11. The defendant Easy Group Inc. d/b/a Easy Education is the parent company to the

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defendants Easy 4 Education Canada Inc., Easy 4.0 Education Inc., and Easy 4.0 Education
UTSC, which provide tutoring services to Mandarin-speaking students at the University of
Toronto.

12. Easy Edu was founded in 2015 by Jacky Zhang shortly after he graduated from the
University of Toronto, where he began tutoring fellow international students.

13. Easy Edu companies provide group tutoring sessions, practice materials, and
learning resources, as well as mentorship in formats that help students master the university
courses they are taking. Easy Edu contracts tutors to prepare their own tutoring content,
which consists of, among other things, lectures (in-person or remote), slide decks, notes,
video recordings, and practice questions (“Tutoring Materials”).

14. Many international students face structural, academic, and cultural barriers in their
Canadian post-secondary education. Mr. Zhang founded Easy Edu to continue servicing
the international student community and to address international students’ unmet
educational needs in Canadian post-secondary institutions.

15. Because English is the second language for many Chinese international students,
Easy Edu provides various services and resources in Mandarin and written Chinese. Unlike
in Canada, private tutoring is commonplace and customary for students in China and for
international students from China.

16. The defendant Easy 4.0 Education Inc. provides services to students attending
classes at the University of Toronto’s downtown campus (“St. George”).

17. The defendant Easy 4 Education Canada Inc. provides services to students
attending classes at the University of Toronto’s University of Toronto at Mississauga
campus (“UTM”).

18. The defendant Easy 4.0 Education UTSC Inc. provides services to students
attending classes at the University of Toronto’s Scarborough campus (“UTSC”).

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 b. The University and the Professors

19. The plaintiffs Robert Gazzale (“Gazzale”), Lisa Kramer (“Kramer”), and Ai
Taniguchi (“Taniguchi”, and collectively with Gazzale and Kramer, the “Professors”) are
employed by The Governing Council of The University of Toronto (the “University”). The
Professors teach students enrolled at the University of Toronto, including international
students from China, in their ECO101, MGT330, and LIN204 courses (collectively, the
“Courses”) referred to in paragraph 25 of the Claim.

C. NO INFRINGEMENT OF COPYRIGHT

20. The plaintiffs fail to allege copyright infringement of any particular or identifiable
work. The Claim vaguely refers to purported “University Course Materials” at paragraphs
17, 20, and 23 as the “PowerPoint presentations, lecture slides, course syllabuses, lecture
notes, tests, examinations, and other literary, artistic, dramatic, and audiovisual works”
used in the Gazzale ECO101 Course (the “ECO101 Course Materials”), the Kramer
MGT330 Course (the “MGT330 Course Materials”), and the Taniguchi LIN204 Course
(the “LIN204 Course Materials”, which also allegedly includes lecture videos and
homework assignments). No dates of creation, no titles, and no meaningful descriptions of
the form or content are pleaded in the Claim. The Claim only provides non-limiting and
non-specific examples at paragraphs 40a to 40c, referring to indefinite works such as
“Term Tests” and “undated lectures.” As the University Course Materials are not defined,
the defendants have no knowledge of whether copyright subsists in any purported
University Course Materials. Easy Edu puts the plaintiffs to the strict proof thereof.

21. In any event, Easy Edu has not copied a substantial part of any allegedly
copyrightable aspects of any PowerPoint presentations, lecture slides, course syllabuses,
lecture videos, homework assignments or lecture notes. As set out at paragraphs 31 to 49
below, any use by Easy Edu of any purported University Course Materials, such as portions
of term tests, was lawful.

22. The Claim also fails to clearly and precisely define Easy Edu’s purportedly
infringing activities. Instead, the plaintiffs provide vague, non-limiting, and non-specific

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examples of Easy Edu’s purported infringement of the plaintiffs’ alleged copyrights at
paragraphs 40a to 40c of the Claim:

a. “tutoring packages that reproduced the ECO101 Course Materials” in the

Fall of 2020 and 2021;

b. “tutoring packages that reproduced the MGT330 Course Materials” in the

Fall of 2020; and

c. “tutoring packages that reproduced the LIN204 Course Materials” in the

Fall of 2021.

23. Easy Edu contracts tutors to prepare their own Tutoring Materials, which do not
infringe the rights of the plaintiffs. In particular, although the plaintiffs have failed to plead
infringement in respect of any identifiable work, Easy Edu denies it has any liability to the
plaintiffs (or any party) under the Copyright Act because, for the reasons set out below,
Easy Edu has not and cannot have infringed any purported copyright of the plaintiffs.

24. With respect to paragraphs 32 to 45 of the Claim, Easy Edu denies that it has
unlawfully reproduced, produced, published, communicated to the public by
telecommunication, sold or offered for sale, distributed, or possessed any purported
University Course Materials (or any substantial part thereof) in which copyright subsists
without authorization of the plaintiffs, or authorized any such activities (and including any
other conduct contrary to the Copyright Act alleged within the Claim, together the
“Allegedly Infringing Activities,” all of which are denied).

25. The plaintiffs appear to fundamentally misunderstand Easy Edu’s business and
services. Easy Edu’s services are not predicated on wholesale or substantial copying of
professors’ course content. The Tutoring Materials, including the lectures and written
materials, are original works created by Easy Edu tutors and, depending on the case,
entirely or mainly prepared in Mandarin and written Chinese. To further facilitate learning,
tutors also use Chinese cultural references and context in delivering educational material,
for instance when the tutor provides examples or question content.

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26. Students who enroll in Easy Edu’s tutoring sessions access the Tutoring Materials
through Easy Edu’s web portal. Students subscribe to a course package (i.e., a set of weekly
tutorial sessions), which will grant the student permission to, as applicable, attend live
tutorial sessions (in person or online), access and/or watch video recordings of tutorial
sessions, or download the Tutoring Materials.

27. The Tutoring Materials are not reproductions of University Course Materials and
do not include substantial reproductions of such purported works. They are not mere copies
or mere translations of the plaintiffs' purported works, nor are they colourable imitations
thereof. Rather, the Tutoring Materials are new, original, and lawfully used works created
and compiled by Easy Edu tutors. For example, the Tutoring Materials do not substantially
copy any lecture slides, course notes, or PowerPoint presentations owned by the plaintiffs
and alleged to be University Course Materials.

28. Easy Edu’s tutoring services are primarily carried out by tutors who are
independent contractors. Easy Edu’s tutors are responsible for creating the Tutoring
Materials. Easy Edu is not liable for the acts of independent contractors. As admitted by
the plaintiffs, Easy Edu’s own policies forbid the unlawful use of intellectual property by
its tutors.

29. In the alternative, if this Honourable Court finds that copyright subsists in any
purported University Course Materials and that any of the defendants have carried out any
of the Allegedly Infringing Activities (which is denied), then:

a. The defendant Easy 4 Education Canada Inc. provides tutoring services and
materials to students attending the UTM campus. As such, Easy 4 Education
Canada Inc. specifically denies that it carried out or carries out any
Allegedly Infringing Activities in respect of any purported University
Course Materials that were made in connection with courses offered at the
UTSC or St. George campuses.

b. The defendant Easy 4.0 Education UTSC Inc. provides tutoring services and
materials to students attending the UTSC campus. As such, Easy 4.0

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 Education UTSC Inc. specifically denies that it carried out or carries out
any Allegedly Infringing Activities in respect of any purported University
Course Materials that were made in connection with courses offered at the
UTM or St. George campuses. None of the Courses were offered at UTSC,
and therefore no purported University Course Materials were made in
connection with courses offered at UTSC. Accordingly, none of the
allegations made in the Claim, including any Allegedly Infringing
Activities, relate to Easy 4.0 Education UTSC Inc. in any manner.

c. The defendant Easy 4.0 Education Inc. provides tutoring services and
materials to students attending the St. George campus. As such, Easy 4.0
Education Inc. specifically denies that it carried out or carries out any
Allegedly Infringing Activities in respect of any purported University
Course Materials that were made in connection with courses offered at the
UTSC or UTM campuses.

d. The defendant Easy Group Inc. does not provide tutoring services or
materials to students and denies that it carried out or carries out any
Allegedly Infringing Activities in respect of any purported University
Course Materials.

D. NO INFRINGEMENT OF MORAL RIGHTS

30. The pleaded allegations of moral rights infringement at paragraph 44 of the Claim
do not identify any particular activity or product by Easy Edu that unlawfully fails “to
credit the Professors for their works.” Further, the plaintiffs do not define (a) which
purported University Course Materials Easy Edu has distorted, mutilated, or otherwise
modified, (b) how Easy Edu has allegedly done so, and (c) what makes those undefined
actions prejudicial to the Professors’ honour or reputation. Easy Edu denies that it has failed
to do or to not do any act, including crediting the Professors or distorting, mutilating, or
otherwise modifying the purported works, that, if so done or not done, would prejudice the
honour or reputation of the Professors.

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E. EASY EDU’S ACTIVITIES CONSTITUTE FAIR DEALING

31. If this Honourable Court finds that copyright subsists in any purported University
Course Materials and that Easy Edu has carried out any Allegedly Infringing Activities,
which is denied, Easy Edu’s activities constitute fair dealing pursuant to sections 29 and
29.1 of the Copyright Act.

32. The activities of Easy Edu, its tutors, and its students, including any Allegedly
Infringing Activities (which are denied), fall squarely within one or more of the explicitly
enumerated permissible purposes in sections 29 and 29.1 of the Copyright Act — education,
research, private study, criticism, and review. To any extent Easy Edu has used the
purported University Course Materials, it has done so for the purposes of, inter alia:

a. educating University of Toronto students on the same subject matter taught

in the Courses;

b. researching and studying such purported University Course Materials to

better understand the scope of the subject matter taught in the Courses and
tailor Easy Edu’s tutoring offerings to students at the University of Toronto;

c. reviewing and criticizing such purported University Course Materials,

particularly to comment on the ways these materials can better meet the
needs of Chinese international students at the University of Toronto; and

d. aiding students in their research or private study.

33. To the extent Easy Edu has used any purported University Course Materials for the
purposes of criticism or review, Easy Edu mentions the source and author of the purported
originating work.

34. Easy Edu’s students are also students at the University of Toronto and are the
ultimate users of Easy Edu’s Tutoring Materials and any purported University Course
Materials. Easy Edu, its tutors, and its students make copies of materials used for Easy
Edu’s tutoring services for the purposes of education, research, private study, criticism,
and review. In each case, the tutoring materials and services aid, support, and enable (and,
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in the case of Easy Edu and its tutors, to provide tutoring services that support) the rights
of students to receive such materials for education, research, private study, criticism, and
review purposes in a fair manner, including Chinese international students enrolled in
particular courses at the University of Toronto.

35. Easy Edu, its tutors, and its students limit the number of copies made and
distributed. Easy Edu’s students receive Tutoring Materials that are specific to particular
courses at the University of Toronto. In other words, students do not have general access
to, or receive copies of, Tutoring Materials other than those that are specific to the courses
they are enrolled in at the University of Toronto.

36. Contrary to the allegations at paragraph 38 of the Claim, Tutoring Materials are
retained and available to students only as necessary. Tutoring Materials are only provided
for a particular course when the course is being offered by the University, and such
materials are no longer accessible to students or provided after the course has been
completed. Easy Edu discourages further dissemination, including through the use of
technological measures such as watermarking. Once such materials are made inaccessible
to students, they are only accessed by Easy Edu and its tutors for the purpose of developing
and improving Easy Edu’s tutoring services.

37. To the extent that any purported University Course Materials are included in whole
or in part in Easy Edu’s tutoring materials, Easy Edu, its tutors, and its students copy and
use only such amount as required to aid, support, and enable the students’ academic success
in the University’s courses. For example, Easy Edu translates English content into
Mandarin and written Chinese to allow students to understand course content in their first
language.

38. Easy Edu addresses otherwise unmet needs for Chinese international students at the
University of Toronto. Namely, Easy Edu provides culturally specific tutoring services for
Mandarin-speaking students, tailored to accommodate the differences between the
Canadian and Chinese education systems. The University and the Professors do not provide
any alternatives to the services provided by Easy Edu.

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39. The plaintiffs know or ought to know that the majority of Chinese international
students speak English as a second (or subsequent) language. However, the majority of the
University’s courses, including the Courses, are offered solely in English. By providing
tutorial services in Mandarin and written Chinese to international students, Easy Group
seeks to close pedagogical and cultural gaps that perforce arise when students who speak
a different language and come from a materially different learning culture undertake
studies at Canadian Universities arising from the University’s own admission policies and
the content of its courses.

40. Course materials at universities including, presumably, any purported University

Course Materials, are specific to both particular institutions and professors. To aid, support,
and enable the success of its students, Easy Edu and its tutors must provide tutoring services
and materials that are specific to the courses in which the students are enrolled, and to the
professors teaching those courses. Accordingly, to any extent Easy Edu carries out
Allegedly Infringing Activities in respect of purported University Course Materials (which
is denied), the specific nature of such purported University Course Materials requires the
use of such particular works in order to provide meaningful tutoring services to students.
It is a commonplace practice for tutors and for providers of tutoring services to do so.

41. As set forth at paragraphs 53 to 54 below, Easy Edu’s business is complementary

and beneficial to the University and the Professors. In addition, Easy Edu’s tutoring
services are designed to allow Chinese international students to understand English
language course content and materials. As a result, any purported University Course
Materials are more likely to achieve the Professors’ and the University’s purpose of
educating students as a result of Easy Edu’s activities.

F. THE UNIVERSITY COURSE MATERIALS ARE SUBJECT TO AN

IMPLIED LICENCE AND/OR CONSENT

42. If this Honourable Court finds that copyright subsists in any purported University
Course Materials, which is denied, Easy Edu’s activities were performed within the scope
of one or more licences or consents from the plaintiffs implied by the circumstances.

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43. The plaintiffs authorize, permit, and encourage students and others to make copies
of course materials, including any purported University Course Materials, for the purpose
of studying. For example, the plaintiffs encourage the copying and dissemination of past
tests. The University of Toronto Library’s website provides links for students to access and
copy past tests and exams. As a further example, the University encourages students to
access and copy tests at the Arts & Sciences Student Union (the “ASSU”) online Past Test
Library on the University’s webpage entitled “Where can I find old exams?”. The ASSU
Past Test Library comprises hundreds of past tests that have been “donated” by students.
The ASSU website states, “ASSU has a library of student donated tests. Students can come
in and photocopy them. Some of our Course Unions also carry tests – you can ask at our
office. ASSU is always looking for students to donate their old tests to our library – we
will make a photocopy of the test.” To the defendants’ knowledge, the ASSU is not
explicitly licensed to copy past exams or to make them available for copying.

44. As another example, the University also hosts an “Old Exam Repository” where
students can access copies of previous final exams.

45. As yet another example, the University encourages students to access the
University of Toronto Engineering Society SKULE repository, which includes exams and
syllabuses.

46. The plaintiffs authorize, permit, and encourage students to share course materials,
including any purported University Course Materials, for example, in the context of private
studying groups.

47. Purported University Course Materials were posted on the internet, including on
publicly accessible websites and on University-owned or operated websites for students.
The plaintiffs have been aware of, and have encouraged, the copying and dissemination of
course materials identical to, or similar to, the general descriptions in the Claim of the
purported University Course Materials for many years. To the defendants’ knowledge,
purported University Course Materials did not and do not carry copyright markings or
notices.

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48. In addition, it is an implied term in every contract between the University, on one
hand, and each student enrolled in a University course, on the other hand, that the student
is entitled to make use of University Course Materials for the purpose of studying,
including receiving and benefitting from supplementary tutoring services.

49. In addition or in the alternative, Easy Edu pleads and relies upon the doctrine of
non-derogation from grants.

G. THE PLAINTIFFS ARE NOT ENTITLED TO DAMAGES

50. With respect to paragraphs 56 to 62 of the Claim, the defendants deny that the
plaintiffs have suffered any irreparable harm, loss, or damage as a result of Easy Edu’s
activities.

51. Contrary to the allegations at paragraphs 56, 57, and 71 of the Claim, the University
and the Professors have suffered no harm to their reputations or perceived integrity.
Further, Easy Edu’s activities have created no false impressions, let alone harmful ones.
The plaintiffs have pleaded no material facts to support these bald assertions. Rather, as
the plaintiffs admit at paragraph 2 of the Claim, the University of Toronto is one of
Canada’s premier universities and is consistently ranked among the best universities in the
world. As alleged at paragraphs 15 to 23 of the Claim, the Professors continue to be
employed by and to teach numerous courses to thousands of students at this prestigious
institution. These allegations are frivolous, scandalous, and vexatious.

52. The allegations at paragraphs 58 to 61 of the Claim are also frivolous and vexatious.
Violations of the University’s internal codes of conduct and academic policies are not
within the jurisdiction of this Honourable Court. These inflammatory allegations are
immaterial to the causes of action advanced in the Claim. In any event, as set out at
paragraphs 63 to 70 below, Easy Edu has made consistent, good faith efforts to assist the
University in addressing academic offenses and misconduct by its students.

53. The University and the Professors benefit, both economically and in other
significant ways, from the enrolment and attendance of international students. Indeed, the
University encourages applications from international students. According to the plaintiffs

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at paragraph 14 of the Claim, 26 per cent of the University’s student body is made up of
international students. The University’s website further indicates a plurality of
international students are accepted from China. Specifically, and according to the
University’s website, 15,671 of its students are admitted from China, the next highest
foreign country being India with 2,082. While the tuition cost for Canadian undergraduate
students ranges from $6,100 to $14,180, the tuition charged to international students ranges
from $39,560 to $62,250. In 2019, the University reported that international students were
its highest source of revenue, contributing even greater income than operating grants from
the Ontario government.

54. Easy Edu’s tutoring services make it possible for Chinese international students,
the largest demographic of international students at the University of Toronto by a wide
margin, to overcome language and cultural barriers to their academic success and thus meet
the requirements of the University’s courses, including ECO101, MGT330, and LIN204.
In fact, when marketing its own services, Easy Edu encourages Chinese international
students to attend the University. Easy Edu’s services make the University’s offerings,
including ECO101, MGT330, and LIN204 more appealing to Chinese international
students. Easy Edu’s services also benefit professors by making their courses more
accessible to Chinese international students, thereby reducing professors’ workloads and
fostering a better classroom environment.

55. Even if the defendants infringed copyright in any purported University Course
Materials, which is denied, such University Course Materials have, at most, nominal value.
Course materials, such as any purported University Course Materials for a particular
University course, are freely available to students who have enrolled in the course. Thus,
to the extent Easy Edu’s tutoring materials include any purported University Course
Materials, which is denied, such materials would already be freely available to the students
who purchase Easy Edu’s tutoring programs. Course materials have, at most, nominal
standalone value outside the context of enrolment in a university course. Moreover, the
value of Easy Edu’s tutoring materials to students is based upon content lawfully created
or assembled by Easy Edu and/or its tutors, and not any Allegedly Infringing Activities.

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56. Moreover, with respect to the purported assignments between the University and
each of Gazzale and Taniguchi described at paragraph 29 of the Claim (the
“Assignments”), each such assignment of all right, title, and interest in certain University
Course Materials was apparently made for the all-inclusive sum of $2.00. The assignment
for such nominal monetary consideration purportedly included the right to seek damages
for infringement, including in the present action which was contemplated at the time of the
Assignments. The economic value of any purported University Course Materials, and the
damages being sought in this action, cannot be greater than the entire economic value of
“all right, title, and interest” in those same University Course Materials.

57. In the alternative or in addition, the Claim is champertous and an abuse of process.
As a result, the plaintiffs are not entitled to the relief claimed, including damages. The
University procured the purported copyrights for an improper motive. As the plaintiffs
admit at paragraph 28 of the Claim, the University has no legal interest in course materials,
including any purported University Course Materials, created by professors. The
University’s only interest in this proceeding arises as a result of purported Assignments
executed days prior to the plaintiffs having commenced this proceeding. In the further
alternative or in addition, the Assignments are forbidden and invalid, pursuant to An Act
Respecting Champerty, RSO 1897, c. 327.

58. With respect to paragraph 63 of the Claim, if this Honourable Court finds that the
plaintiffs are entitled to any statutory damages, which is denied, the quantum of such
damages should be reduced pursuant to sections 38.1(2) and 38.1(3) of the Copyright Act.

59. Including as set out at paragraphs 23 to 28 and 31 to 49 above, Easy Edu was not
aware and had no reasonable grounds to believe that it had infringed any copyright in the
purported University Course Materials. Instead, Easy Edu has cooperated with the
University at all material times to ensure that its activities do not infringe any purported
copyright in the University Course Materials. Contrary to the plaintiffs’ allegations at
paragraphs 46, 50, and 53 of the Claim, Easy Edu was only notified that the University was
investigating its wares and services for potentially infringing activities. The details of Easy
Edu’s good faith cooperation with the University, as well as Easy Edu’s lack of awareness

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of the University’s written notice to “cease-and-desist” from allegedly infringing activities,
are set out at paragraphs 63 to 70 below

60. Further, the University Course Materials comprise more than one work and/or other
subject matter in a single medium. The awarding of even the minimum amount of $500 per
work or other subject matter infringed would also result in a total award that is grossly out
of proportion to any infringement (which is denied).

61. In the alternative, the quantum pursuant to section 38.1(1)(a) of the Copyright Act
should be the minimum statutory amount of $500 per work or other subject matter
infringed.

62. With respect to paragraphs 67 to 70 of the Claim, the plaintiffs are not entitled to
punitive or exemplary damages. Easy Edu has not knowingly, wilfully, or maliciously
engaged in any infringement of the plaintiffs’ rights. Rather, as set out at paragraphs 63 to
70 below, Easy Edu has attempted to engage and cooperate with the plaintiffs with respect
to both intellectual property-related issues and, though beyond the proper scope of this
action, academic offenses committed by students at the University of Toronto. Any such
award would result in a chilling effect upon lawful user rights and upon tutorial services,
including but not limited to those of the defendants, that serve the unmet needs of
international students.

H. THE PLAINTIFFS ARE NOT ENTITLED TO AN INJUNCTION OR AN

ACCOUNTING OF PROFITS

a. The University ignored Easy Edu’s attempts to establish a

constructive relationship

63. With respect to paragraphs 46 to 55 of the Claim, Easy Edu has made repeated
attempts to engage with the University to ensure that its services continue to benefit the
University, the University’s professors including the Professors, and their students.
Although the University was at times receptive to engaging in constructive dialogue with
Easy Edu, the University seemingly terminated this relationship around the time of its
initial investigations into Easy Edu’s purported copyright infringement. Despite Easy

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Edu’s ongoing cooperation with the University’s investigations, Easy Edu’s attempts to
reach out to the University were ignored.

64. In or around April 2020, hoping to form a constructive relationship, Easy Edu sent
emails to the University (including to the administration at its UTM and UTSC satellite
campuses) introducing Easy Edu’s tutoring services and providing details of Easy Edu’s
commitment to academic integrity. In response to this outreach, Andrea Russel, Director
of Academic Affairs of the University, wrote on or around October 8, 2020:

“Our Vice-Provost Faculty & Academic Life, Professor Heather Boon,

and I would like to take you up on that request to meet to discuss
academic integrity expectations at U of T, and how your company helps
our students understand academic integrity standards at our
university. While some of our divisional academic integrity offices may
also wish to meet with you, we would be meeting with you on behalf of
the University as a whole on this topic.”

65. As set out at paragraph 48 of the Claim, on October 28, 2020, Easy Edu’s CEO,
Gary Kang, met with representatives of the University to discuss academic integrity.

66. Contrary to the allegations at paragraph 50 of the Claim, the University did not
demand in or around November 2020 that Easy Edu “cease-and-desist” from infringing the
MGT330 Course Materials. While the subject of copyright was first raised in an email sent
on or around November 4, 2020 by Andrea Russell to Gary Kang, Ms. Russell stated that
she had “received a message from one of our professors yesterday, asking about possible
copyright infringement that might be occurring with the coursepack materials that you sell
on your website.” Ms. Russell asked Easy Edu to send copies of the tutoring materials for
the class MGT330, which Easy Edu promptly and voluntarily sent on or around November
9, 2020.

67. In follow-up correspondence on or around December 1, 2020, Mr. Kang reiterated

to Ms. Russell that Easy Edu had no intention of infringing copyright, stating, “We
absolutely do not want to infringe on the copyright held by the university or individual
professors.” Mr. Kang specifically requested that the University “let us know if you have
any guidance regarding the materials we shared” and offered to update the materials if
necessary.

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68. On or around December 1, 2020, Ms. Russell responded promising to contact Easy
Edu when its review of the MGT330 materials was complete. To Easy Edu’s knowledge,
Ms. Russell made no further contact.

69. On or around December 1, 2020, Mr. Kang responded and reiterated that Easy Edu
would continue to work to ensure there was no copyright infringement, as admitted by the
plaintiffs at paragraph 51 of the Claim, and expressed Easy Edu’s “fervent hope to establish
a continued dialogue moving forward.”

70. The University made no further effort to engage with Easy Edu until on or around
April 30, 2021. Despite the prior direct email communication that had been occurring
between Mr. Kang and Ms. Russell, external counsel for the University and the Professors
sent a cease-and-desist letter to Easy Edu to a generic contact email address,
contact@easygroup.ca. The email containing the cease-and-desist letter was not opened,
and Easy Edu was unaware of the existence of the cease-and-desist letter until learning of
it from the Claim. Despite having communicated by email with Mr. Kang and several other
Easy Edu employees, the University did not follow up with any of them when it failed to
receive a response to the email sent to contact@easygroup.ca.

b. The Plaintiffs are not entitled to equitable relief

71. With respect to paragraphs 1c, 1f, 71, and 72 of the Claim, Easy Edu denies that
the plaintiffs are entitled to any equitable relief as claimed, or at all, including any form of
injunction or any accounting of profits, including on the grounds of unclean hands, ex turpi
causa, acquiescence, waiver, and copyright misuse.

72. There is no serious issue to be tried as Easy Edu has not carried out any Allegedly
Infringing Activities as described at paragraphs 20 to 29 above. In any event, Easy Edu’s
activities constitute fair dealing as discussed at paragraphs 31 to 41 above. Further, Easy
Edu has not distorted, mutilated, or otherwise modified the purported works, nor has Easy
Edu failed to credit the Professors for the purported works, in a manner that prejudices the
Professors’ honour or reputation. Regardless, the Claim is manifestly deficient with respect
to these allegations as described at paragraphs 20, 22, and 30 above.

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73. Contrary to the allegations at paragraph 71 of the Claim, the plaintiffs have failed
to establish any irreparable harm from the alleged reproduction of the University’s
purported works. As described at paragraph 55 above, the University Course Materials are
already freely available online to students at the University. Any purported harm that the
plaintiffs complain of has already occurred by the plaintiffs’ own hand and will not be
affected by the issuance of an injunction.

74. The balance of convenience also favours denying injunctive relief. As described
below at paragraphs 81 to 86, the plaintiffs’ conduct has irreparably harmed Easy Edu’s
reputation and goodwill. Additionally, Easy Edu’s clients – largely international students
who rely on Easy Edu’s products and services for academic support in their native
language, as described at paragraphs 11 to 15 and 38 to 39 above – will be unduly restrained
by operation of the injunction.

75. Further, as set out at paragraphs 42 to 48 above, the plaintiffs actively encourage
the very conduct complained of in the Claim. The plaintiffs have acquiesced to such
conduct and have waived their rights, including their right to seek equitable remedies.

76. In addition, University professors themselves frequently use and copy materials
subject to copyright in the University Course Materials, or in similar University course
materials, without authorization from underlying rightsholders. The University encourages
this conduct and promotes user rights such as fair dealing. To any extent Easy Edu’s
conduct amounts to an infringement of the plaintiffs’ copyright, which is denied, the
plaintiffs have variously committed, encouraged, or acquiesced to the same unlawful acts.

77. The plaintiffs’ conduct, including the Claim, also constitutes copyright misuse.
Through the Claim and the plaintiffs’ conduct including as set out at paragraphs 81 to 86
below, the plaintiffs have unlawfully attempted to expand the scope of copyright protection
beyond the exclusive rights granted under the Copyright Act in a manner that is anti-
competitive and otherwise subverts the foundational policy rationales of the Copyright Act.
In particular, the plaintiffs have overreached the boundaries of copyright by attempting to
use it to, inter alia, (a) suppress third-party academic supports and (b) sanction parties who
they purportedly perceive have facilitated students’ academic misconduct.

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78. With respect to paragraph 72 of the Claim, the plaintiffs have failed to demonstrate
that their request for a wide injunction under section 39.1 of the Copyright Act is justified
or practical, both of which are denied. As described at paragraphs 20, 22, and 30 above,
the plaintiffs have failed to clearly and precisely define which works Easy Edu has
purportedly infringed, let alone (a) whether copyright subsists in any or all of these works
or (b) how and where Easy Edu has purportedly infringed these indeterminate works.
Additionally, such an injunction would be overbroad. The Claim fails to adequately define
which works the University or the Professors own or will own, by way of authorship or
assignment, that Easy Edu will likely infringe. In the alternative, if this Honourable Court
orders any other form of relief, in the form of an injunction or otherwise against Easy Edu,
such relief will provide a sufficient deterrent in place of a wide injunction.

78a. The defendants request that this action be dismissed with costs, plus HST, and
including all disbursements.

COUNTERCLAIM

79. The defendants/plaintiffs by Counterclaim, Easy Edu, claim:

a. a declaration that Easy Edu’s activities do not infringe any copyright or

moral rights over the University Course Materials;

b. damages in an amount to be determined at trial under sections 7(a) and

53.2(1) of the Trademarks Act for making false or misleading statements
tending to discredit the business, goods, or services of Easy EDU;

c. a mandatory order compelling the University to remove and retract any false
or misleading statements tending to discredit the business, goods, or
services of Easy EDU, and to publish and disseminate a retraction in the
same manner as such statements were originally published;

d. damages in an amount to be determined at trial under sections 52(1) and

36(1)(a) of the Competition Act for knowingly or recklessly making a
representation to the public that is false or misleading in a material respect

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 for the purpose of promoting, directly or indirectly, the supply or use of a
product or for the purpose of promoting, directly or indirectly, the plaintiffs’
business interests;

e. damages in an amount to be determined at trial under sections 52.01(2) of

and 36(1)(a) the Competition Act for knowingly or recklessly making a
representation in an electronic message that is false or misleading in a
material respect for the purpose of promoting, directly or indirectly, the
supply or use of a product or for the purpose of promoting, directly or
indirectly, the plaintiffs’ business interests;

f. interim and interlocutory injunctions prohibiting the University from

making any statements, orally or in writing, to customers or potential
customers of Easy Edu that Easy Edu’s parents, subsidiaries, affiliates, or
each of their respective agents, employees, officers, or directors are
infringing any copyright;

g. punitive and aggravated damages;

h. prejudgment and post-judgment interest;

i. its costs of this action, all disbursements, including expert fees, plus all
applicable taxes, on a solicitor client basis or such other basis as this court
may award, payable forthwith; and

j. such further and other relief as this Honourable Court may deem just.

80. Easy Edu repeats and relies upon the allegations contained in the Statement of
Defence as set out above.

81. On or around May 11, 2022, the University issued an online, public press release
entitled “U of T sues Easy Edu tutoring company” (the “Press Release”), which includes
comments from the Professors. The University disseminated the Press Release, including
through its official news website, which is widely read throughout Canada and elsewhere,
and through its The Bulletin Brief digest email. The University also shared the story on
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Twitter to approximately 106,000 followers through its “@UofT” Twitter account and
further via other University Twitter accounts.

82. The following false or misleading statements were included in the Press Release:

a. "The University of Toronto and three of its professors have launched a

lawsuit against a tutoring business alleging it routinely copies, without
authorization, lecture slides, course syllabuses, tests and exams and sells
them in “coursepacks” to post-secondary students on its website in violation
of Canada’s Copyright Act."

b. “"I have devoted years to preparing materials for my students. To have a

company profit from the unauthorized use of my intellectual property is
incredibly wrong. It is theft," said Gazzale. "I am also saddened that tutoring
companies are pushing the approach of trying to game the system, as
opposed to trying to help students learn the material."”

c. “The lawsuit alleges that Easy Edu also unfairly exploits students who, in
good faith, pay significant fees for tutoring that can lead to life-altering
consequences stemming from sanctions for academic misconduct. U of T
alleges that in providing tutoring services, Easy Edu may in some cases be
providing students with unauthorized academic assistance where it is not
permitted, an offence under the university's Code of Behaviour on Academic
Matters. That can lead - and has led - to sanctions for academic misconduct
and cheating, including suspensions. For international students, suspensions
can lead to cancellation of their study permits and a forced return to their
home country.”

d. “Assistant Professor Taniguchi, whose linguistics courses attract many

international students, expressed disappointment that Easy Edu preys on
students fears of not doing well in an unfamiliar setting and potentially
disappointing their family. "Easy Edu exploits that fear and leads students
down the path of possible academic offences," she said. "Students are much

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 better off asking for help from their U of T professors or teaching assistants
than paying for a tutoring service that is violating copyright law."”

(the “Unlawful Statements”)

83. The plaintiffs know the full extent of the publication and communication of false
and misleading statements, including the Unlawful Statements, that they have made or
intend to make concerning the activities and ethics of Easy EDU.

84. The Unlawful Statements tend to discredit the business, goods, and services of Easy
Edu. The University and the Professors have and continue to convey the message that Easy
Edu has intentionally and persistently committed copyright infringement and has no regard
for the rights of authors. Moreover, the University has imputed that Easy Edu exploits
students and facilitates academic misconduct.

85. The University has positioned itself as a competitor to Easy Edu, including by
promoting its own academic supports and tuition-funded tutoring services in the Press
Release.

86. These Unlawful Statements have harmed the corporate image, reputation, and
goodwill of Easy Edu – valuable assets that Easy Edu has spent considerable time, money,
and effort to foster and protect. The Unlawful Statements exacerbated and inflamed anti-
Asian racism, including racist, prejudicial, and/or stereotypical sentiments made online
about Chinese international students and tutoring services, including Easy Edu’s tutoring
services.

87. Easy Edu is entitled to an award of aggravated damages. The University’s conduct
has been high-handed and oppressive. The harm that Easy Edu has incurred for loss of
reputation, image, and goodwill is also impossible to accurately assess.

88. Further or in the alternative, the University’s conduct has been deceptive, abusive,
and malicious. The University’s action in copyright was for improper collateral purposes
as described at paragraph 77 above, warranting an award of punitive damages.

89. Easy Edu proposes that the counterclaim be tried in Toronto, at the same time as or
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immediately following the trial of the claim.

Dated at Toronto, Ontario, this 24th day of June, 2022.

Dated at Toronto, this 18th day of August, 2022

______________________________
GILBERT’S LLP

Suite 2200, Law Chambers

181 University Avenue
Toronto, Ontario M5H 3M7

Tim Gilbert, LSO #30665U

Paul Banwatt, LSO #61767L
Justin Kearsley-Ho, LSO #82749R

Tel: 416-703-1100
Fax: 416-703-7422
Email: tim@gilbertslaw.ca
paul@gilbertslaw.ca
justin@gilbertslaw.ca

______________________________
Ariel Katz, LSO #56029H

c/o Gilbert’s LLP

Tel: 416-795-5648
Email: ariel@arielkatz.org

______________________________
GOWLING WLG (CANADA) LLP
Suite 2600, ONE60 Elgin
160 Elgin Street
Ottawa, Ontario K1P 1C3

James Plotkin, LSO #69559C

Tel: 613-783-8817
Email: james.plotkin@gowlingwlg.com

Solicitors for the Defendants

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 (Plaintiffs by Counterclaim)

- 24 -
TO:
THE ADMINISTRATOR
Federal Court of Canada
180 Queen Street West, Suite 200
Toronto, Ontario M5V 3L6

AND TO:
CASSELS BROCK & BLACKWELL LLP
Suite 2100, Scotia Plaza
40 King Street West
Toronto, Ontario M5H 3C2

Casey M. Chisick, LSO #46572R

Tel: 416.869.5403
Fax: 416.644.9326
Email: cchisick@cassels.com

Jessica Zagar, LSO #57305Q

Tel: 416.869.5449
Fax: 647.259.7969
Email: jzagar@cassels.com

Sebastian Beck-Watt, LSO #74221L

Tel: 416.860.6726
Fax: 416.360.8877
Email: sbeckwatt@cassels.com

Solicitors for the Plaintiffs

(Defendants by Counterclaim)

- 25 -
 Court File No. T-948-22
FEDERAL COURT
BETWEEN:
THE GOVERNING COUNCIL OF THE
UNIVERSITY OF TORONTO,
ROBERT GAZZALE, LISA KRAMER, and AI
TANIGUICHI
Plaintiffs/Defendants by Counterclaim

- and –

EASY GROUP INC. d/b/a EASY EDUCATION, EASY

4 EDUCATION
CANADA INC., EASY 4.0 EDUCATION INC., EASY
4.0 EDUCATION UTSC INC.
Defendants/Plaintiffs by Counterclaim

STATEMENT OF DEFENCE AND

COUNTERCLAIM

GILBERT'S LLP
181 University Avenue, Suite 2200
Toronto, Ontario M5H 3M7

Tim Gilbert
Paul Banwatt
Justin Kearsley-Ho

Tel: 416-703-1100
Fax: 416-703-7422

Ariel Katz
c/o Gilbert’s LLP

Tel: 416-795-5648

GOWLING WLG (CANADA) LLP

160 Elgin Street, Suite 2600
Ottawa, Ontario K1P 1C3
James Plotkin
Tel: 613-783-8817
Solicitors for the Defendants/Plaintiffs by Counterclaim