DEFENDANT / MOVING PARTY REPLY

Court File No.: T-2084-12 FEDERAL COURT BETWEEN: UNITED AIR LINES, INC. and CONTINENTAL AIRLINES, INC. Plaintiffs and DR. JEREMY COOPERSTOCK Defendant DEFENDANT / MOVING PARTY REPLY Dated: January 18, 2013 DR. JEREMY COOPERSTOCK 392 Grosvenor Street Westmount, Québec H3Z 2M2 Tel: 438-808-6463 jcooperstock@gmail.com Defendant / Moving Party

TO: GOWLING LAFLEUR HENDERSON LLP 1 Place Ville Marie, 37th Floor Montreal, Quebec H3B 3P4 Me Hélène D Iorio Tel: 514-392-9564 Fax: 514-878-1450 Me Lee A. Johnson Tel: 514-392-9502 Fax: 514-876-9502 Solicitor for the Plaintiffs, United Air Lines, Inc., and Continental Airlines, Inc.

Court File No.: T-2084-12 FEDERAL COURT BETWEEN: UNITED AIR LINES, INC. and CONTINENTAL AIRLINES, INC. Plaintiffs and DR. JEREMY COOPERSTOCK Defendant REPLY OF THE MOVING PARTY, DR. JEREMY COOPERSTOCK Table of Contents A. UNPROVEN ALLEGATIONS, NOT SUPPORTED BY EVIDENCE... 2 B. PLAINTIFFS HAVE UNNECESSARILY INSTITUTED TWO PROCEEDINGS.. 3 C. CONDUCT OF COUNSEL FOR THE PLAINTIFFS... 4 D. EXTENSION OF TIME FOR FILING STATEMENT OF DEFENCE... 6 (i) Applicability of Rule 6... 7 (ii) Alleged prejudice to the Plaintiffs... 8 (iii) Dr. Cooperstock has reasonable explanation for the delay... 9 E. CASE MANAGEMENT... 12 F. COSTS... 13

- 2 - A. UNPROVEN ALLEGATIONS, NOT SUPPORTED BY EVIDENCE 1. The Plaintiffs have made several unproven and misguided allegations of facts in their submissions that are not supported by any evidence on the record. A few examples of these are provided below. 2. Dr. Cooperstock denies that he redesigned the website Untied.com between March 3, 2012 and April 9, 2012, and submits that there is no evidence on the record in support of this allegation. Plaintiffs Representations, para. 4 3. Dr. Cooperstock denies that he made no changes to the website Untied.com after he was approached by the Plaintiffs. Indeed, well before the Statement of Claim was served, Dr. Cooperstock did add a disclaimer (This is not the website of United Airlines) and a pop-up window to clearly distinguish Untied.com from the Plaintiffs website in response to the Plaintiffs concerns as an additional, possibly unnecessary, safety measure to avoid any possible confusion. Dr. Cooperstock Affidavit, Ex. B and C Motion Record, Tabs 2B-2C Plaintiffs Representations, paras. 5 & 50 4. The Plaintiffs have chosen not to cross-examine Dr. Cooperstock on his January 7, 2013 affidavit. Instead, the Plaintiffs attempt to rely on inadmissible hearsay contained in a newspaper article. Even if the Toronto Star article were admissible, it supports Dr. Cooperstock s account of the events: the article was published on November 30, 2012, and it refers to a redesign last year, that is, in the year of 2011, and not in 2012 as the Plaintiffs claim. Lastoria Affidavit, Ex. F 5. Dr. Cooperstock asks that the Honourable Court draw adverse inference from the Plaintiffs failure to adduce evidence in support of their allegations and/or to cross-examine him on his January 7, 2013 affidavit.

- 3 - B. PLAINTIFFS HAVE UNNECESSARILY INSTITUTED TWO PROCEEDINGS 6. Dr. Cooperstock would like to draw attention to the evasive response by the Plaintiffs to Dr. Cooperstock s submission that the Plaintiffs have unnecessarily instituted two proceedings against him. Defendant s Representations, para. 31 Plaintiffs Representations, para. 6 Motion Record, P92 7. This point is relevant to the present motion, because the Plaintiffs and/or their counsels have created conflicting deadlines for Dr. Cooperstock, and there is a legitimate concern that without close monitoring by the Honourable Court, they will attempt to do so in the future. 8. Dr. Cooperstock submits that the Plaintiffs could have pursued the present action for trade-mark and copyright infringement in the Quebec Superior Court, which has concurrent jurisdiction over these subject matters. Indeed, the Plaintiffs could have instituted a single proceeding before the Quebec Superior Court, and could have put forward all their complaints about the Untied.com website in a single action. 9. The Plaintiffs have offered no explanation for their choice to pursue their claim for trade-mark and copyright infringement in a separate action and in a different court, given that they commenced at the same time an action against Dr. Cooperstock before the Quebec Superior Court, and that court has jurisdiction over all subject matters in issue. 10. It is submitted that the Plaintiffs failure to address this point supports the conclusion that the Plaintiffs reason for unnecessarily instituting two separate proceedings is to create additional burden on Dr. Cooperstock s limited resources, to create conflicting deadlines in parallel proceedings, and ultimately, to prejudice Dr. Cooperstock s ability to defend himself.

- 4 - C. CONDUCT OF COUNSEL FOR THE PLAINTIFFS 11. In spite of the Plaintiffs attempt to whitewash the conduct of their counsel toward Dr. Cooperstock, as demonstrated below, Me D Iorio failed to act reasonably and professionally in her dealings with Dr. Cooperstock. It is further submitted that her conduct, which has substantially contributed to the need to bring the present motion, ought to be considered with respect to costs. (i) Failing to respond to request concerning electronic service 12. On December 13, 2012, Dr. Cooperstock wrote to Me D Iorio, and sought her consent to accepting Electronic Legal Service as per the Electronic Legal Service and Electronic Filing in the Federal Court (Amended July 21, 2009) directive. Dr. Cooperstock Affidavit, para. 17, Ex. L Motion Record, Tab 2L, P39 13. Me D Iorio has never responded to Dr. Cooperstock s request. Moreover, she has failed to respond to Dr. Cooperstock s request even though this matter was raised in the present motion. The Plaintiffs have ignored this matter, and provided no explanation for Me D Iorio s failure to respond. Dr. Cooperstock Affidavit, para. 18 Defendant s Representations, paras. 45-46 Motion Record, Tab 2, P8 Motion Record, P95 (ii) Failure to ask about the reasons for the request for an extension 14. The Plaintiffs complain in their submissions that Dr.Cooperstock did not provide reasons for his request for an extension. Plaintiffs Representations, paras. 8, 10, 12, 14, 42, 44, 56(iii) 15. If Dr. Cooperstock s reasons for asking for an extension were a concern to the Plaintiffs, it is perplexing why Me D Iorio did not inquire about them, and it supports the conclusion that Me D Iorio was engaging in sharp practice.

- 5 - (iii) Falsely denying knowledge of death in family 16. On December 21, 2012, Dr. Cooperstock delivered a letter of complaint to Me Dorion about the conduct of Me D Iorio. Dr. Cooperstock Affidavit, paras. 23, Ex. P Motion Record, Tab 2P, P46 17. As the Plaintiffs conceded, a copy of the letter was sent to Me D Iorio during regular business hours, around 3:00 pm, by email. The letter was marked URGENT and its subject stated Complaint concerning the conduct of Me Hélène D Iorio in bold font. Plaintiffs Representations, para. 22 Dr. Cooperstock Affidavit Ex. P Motion Record, Tab 2P, P46 18. It is difficult to believe that an attorney who receives a copy of a complaint about her conduct would not immediately read it. It is even more difficult to believe that Me Dorion would not contact Me D Iorio about the letter, which was marked as urgent, upon its receipt. The Plaintiffs made no representations as to any circumstance that might have prevented Me D Iorio from reviewing the letter on the day of its receipt, that is, December 21, 2012. 19. In these circumstances, it is submitted that it is far more probable that Me D Iorio read the December 21, 2012 letter before January 3, 2013 than the Plaintiffs claim that she did not; thus, on a balance of probabilities, Me D Iorio did know about the death in Dr. Cooperstock s family before January 3, 2013. (iv) Failure to cooperate with respect to the extension 20. Whatever the case might have been in December 2012, the evidence shows that by January 3, 2013, Me D Iorio was aware of the details concerning the death in Dr. Cooperstock s family. Nevertheless, Me D Iorio continued to withhold her consent to an extension. Dr. Cooperstock Affidavit, Ex. T" Motion Record, Tab 2T, P73

- 6-21. It is worth noting that Me D Iorio had reasonable alternatives to flatly refusing to cooperate with respect to Dr. Cooperstock s request for an extension: (a) Me D Iorio could have followed the practice of the Attorney General of Canada and consented to a 15 day extension, and leave it to the Registrar or the Court to interpret it in light of Rule 6(3). Dr. Cooperstock Affidavit, Ex. N Motion Record, Tab 2N, P44 (b) Me D Iorio could have offered to consent to a motion for an extension should Dr. Cooperstock choose to bring one. This would have relieved her of any concern about the interpretation of Rules. However, as the record demonstrates, Me D Iorio chose the least cooperative and most confrontational avenue to respond to Dr. Cooperstock s reasonable request for an extension. D. EXTENSION OF TIME FOR FILING STATEMENT OF DEFENCE 22. Oddly, although the Plaintiffs argue at great length that Dr. Cooperstock does not meet the legal test for an extension, they are only asking the Court to set a date for the filing of the Statement of Defence; in particular, the Plaintiffs are not asking that the Honourable Court dismiss the motion for an extension. Plaintiffs Representations, paras. 45, 53, and 58 23. This inconsistency in the Plaintiffs position underscores the unreasonableness of the Plaintiffs refusal to cooperate and consent earlier to the sought extension, before the present motion was served and filed. 24. Nevertheless, Dr. Cooperstock has no choice but to respond to the arguments presented by the Plaintiffs, because of their relevance to case management and costs.

- 7 - (i) Applicability of Rule 6 25. Dr. Cooperstock respectfully disagrees with the Plaintiffs about any ambiguity with respect to Rule 6(3). The submissions below are provided to assist the Honourable Court, should it decide to specifically address this point in order to provide guidance to litigants. 26. The effect of Rule 6(3) is to delete from the calendar and ignore, for the purpose of computation of time under the Rules, the days falling within the Christmas recess. 27. The deadline for filing a Statement of Defence is prescribed by Rule 204. Thus, it is a deadline under these Rules within the meaning of Rule 6(3). Rule 7 permits parties to extend, by consent, a 30-day deadline for filing a Statement of Defence by 15 days, to 45 days. The extended deadline of 45 days is still a time prescribed by the Rules, and hence falls within the scope of Rule 6(3). 28. The case at bar can be distinguished from Telecommunications Workers Union v. Telus Mobility, which dealt with a deadline set by the Federal Court Act, and not by the Rules. 29. The case at bar is also different from Canadian Steel Producers Association v. Commissioner of Customs, which dealt with Rule 6(1) and implicitly s. 26 of the Interpretation Act. The present case, however, concerns Rule 6(3), which provides specific provisions about excluding the Christmas recess from the computation of time. 30. Therefore, it is respectfully submitted that Rule 6(3) applies also to deadlines that are extended by consent pursuant to Rule 7.

- 8 - (ii) Alleged prejudice to the Plaintiffs 31. The only evidence tendered by the Plaintiffs in support of their dubious claim that they may be prejudiced by a delay of two weeks is a printout from Dr. Cooperstock s Untied.com website, which the Plaintiffs clearly misinterpret. Lastoria Affidavit, Ex. E Plaintiffs Representations, paras. 39-41 32. It is not uncommon for passengers who were mistreated by the Plaintiffs to post a copy of their correspondence with the Plaintiffs on Untied.com in order to draw public attention to it. There is no evidence to suggest that the Plaintiffs did not receive correspondence from their passengers, and that passengers contacted Untied.com instead of contacting the Plaintiffs. 33. On the contrary, as the Attempted column Exhibit E of the Lastoria Affidavit reveals, both Ms. Rabinovitch and Mr. Moubayed made a variety of attempts to communicate with the Plaintiffs: spoke to employee at airport/flight, complained by telephone, complained by letter, and complained by email. Ms. Rabinovitch also contacted the media. Lastoria Affidavit, Ex. E 34. Unfortunately, as is typical of the modus operandi of the Plaintiffs, these passengers likely received no satisfaction from their communications with the Plaintiffs, and thus they resorted to posting a copy of their correspondence with the Plaintiffs on Untied.com. 35. Hence, Dr. Cooperstock respectfully submits that there is no evidence before the Honourable Court to support the Plaintiffs allegation that the Untied.com website confuses customers of the Plaintiffs and/or that the Plaintiffs suffer any prejudice from a two-week delay in the filing of the Statement of Defence.

- 9 - (iii) Dr. Cooperstock has reasonable explanation for the delay 36. As a preliminary matter, Dr. Cooperstock submits that he has to satisfy the Honourable Court, and not the Plaintiffs, that he has a reasonable explanation for the delay. The Plaintiffs and/or their counsel have taken no interest in Dr. Cooperstock s reasons for seeking an extension until January 3, 2013, that is, twenty-seven (27) days after the first request was made. Thus, they cannot blame Dr. Cooperstock for their own failure to inquire about his reasons. Plaintiffs Representations, para. 44 37. Dr. Cooperstock s explanation for his delay is a combination of three factors: death in his family, the Plaintiffs choice to unnecessarily commence two proceedings against Dr. Cooperstock in two different courts, and inability to obtain legal advice about the subject matter of the action due to the holiday season. The impact of these factors on Dr. Cooperstock s ability to prepare a Statement of Defence must be considered in their totality, and not individually as the Plaintiffs propose. Notice of Motion, p. 2, para. 4 Motion Record, Tab 1 38. Dr. Cooperstock and his wife were notified on December 7, 2012 that his wife s 91-year-old grandmother was dying. It is a common human experience that the dying of a family member is an emotional turmoil that impedes one s ability to concentrate on other matters and to think logically; it is often more difficult than the period after the funeral. Dr. Cooperstock Affidavit, Ex. E Motion Record, Tab 2E, P29 39. It is difficult to understand the Plaintiffs argument that Dr. Cooperstock seeking an extension before the actual passing away of his relative puts into question his reasons for seeking the extension. Plaintiffs Representations, para. 42

- 10-40. Dr. Cooperstock did what a diligent litigant can do in such a situation: within a few hours after receiving the news about his wife s grandmother, he wrote to Me D Iorio to seek her consent to an extension. It is submitted that his reasons for seeking the extension are corroborated by the evidence. Dr. Cooperstock Affidavit, para. 12 Motion Record, Tab 2, P7 41. By instituting two proceedings on the same day (November 19, 2012), the Plaintiffs have created a conflict between the deadline for filing the Statement of Defence in the present proceeding, and the deadline for responding to the Quebec Action. 42. On December 18, 2012, Me Bantey, counsel for the Plaintiffs in the Quebec Action, proposed an unreasonably tight schedule for the proceeding that would have likely interfered with Dr. Cooperstock s ability to defend himself in the present action. Unfortunately, Me Bantey refused to agree to the schedule proposed Dr. Cooperstock on December 20, 2012, and the Plaintiffs chose not to include a copy of that correspondence in their responding record. Plaintiffs Representations, para. 16 43. The Quebec Action is less complex than the present case. Indeed, there is only one counsel representing the Plaintiffs in that action, while there are two counsels in the present action. 44. Thus, Dr. Cooperstock was able to prepare a substantial portion of the preliminary motions in the Quebec Action by December 7, 2012. Due to the dying of his wife s grandmother, he was able to complete these documents only with substantial help from friends, and he did so only by the very last day (December 19, 2012) that the Quebec Code of Civil Procedure permits for filing documents for a hearing set for December 21, 2012.

- 11-45. It is difficult to follow the Plaintiffs argument that Dr. Cooperstock s filing preliminary motions in the Quebec Action on the very last day, which he accomplished with substantial help from friends, is inconsistent with his explanation for his delay in the present action. 46. On the contrary, Dr. Cooperstock s actions with respect to the Quebec Action demonstrate that he took deadlines seriously and made genuine efforts to comply with all of them; alas, he succeeded in complying only with some. 47. Dr. Cooperstock has been and remains self-represented in all actions commenced against him by the Plaintiffs. However, he does seek legal advice from time to time, and some of his court documents are reviewed by a counsel. 48. The Statement of Defence, being the blueprint for the entire action and for the evidence that may be sought through discovery, is certainly a document that Dr. Cooperstock intended to have reviewed by an attorney with expertise in trade-mark and copyright law. 49. Dr. Cooperstock did not have an initial draft of the Statement of Defence ready by December 7, 2012, at which time his efforts to mount a defence were significantly disrupted by the dying of his wife s grandmother. Thus, by that point, he had nothing to be reviewed by an attorney. Later, he had no access to an attorney specialized in trade-mark and copyright law due to the holiday season. Therefore, Dr. Cooperstock s first opportunity to seek legal advice from same about his draft Statement of Defence was on the week of January 7, 2013. 50. Hence, it is respectfully submitted that these unique circumstances provide a reasonable explanation for Dr. Cooperstock s delay in filing his Statement of Defence.

- 12 - E. CASE MANAGEMENT 51. The parties agree that continuing the present action as a specially managed proceeding is desirable, although their views on the reasons for doing so substantially differ. 52. Dr. Cooperstock denies the Plaintiffs allegation that he did not disclose all facts relevant to the present motion. Allegations of this nature by the Plaintiffs are not supported by any evidence before the Honourable Court. Plaintiffs Representations, para. 50 53. Case management is necessary in the present case to prevent the Plaintiffs and their counsels from creating conflicts between deadlines in the present action and the Quebec Action, which would ultimately undermine Dr. Cooperstock s ability to defend himself in one or both of the proceedings. 54. Dr. Cooperstock agrees with the Plaintiffs proposal that this Honourable Court fix a date for the filing and service of the Statement of Defence and the Reply. 55. In light of the upcoming hearing of Dr. Cooperstock s preliminary motions in the Quebec Action on February 15, 2013, Dr. Cooperstock respectfully asks that the Honourable Court allow 45 days from the service of the Reply for the filing and service of the Affidavit of Documents. 56. With respect to Examination for discovery, Dr. Cooperstock asks the Honourable Court to delay fixing a deadline until after the February 15, 2013 hearing in the Quebec Action (at which time the Quebec Superior Court is expected to fix the schedule of the action), in order to minimize any conflict between the demands of the two actions on Dr. Cooperstock s limited resources.

- 13 - F. COSTS 57. In the present motion, Dr. Cooperstock is not asking to be compensated for his own time spent on preparing the motion and the reply; he is only seeking to be indemnified with respect to the printing and binding costs ($120.57 for the Motion Record and approximately $20.00 for the present Reply), and for legal fees paid to an attorney not specialized in trade-mark and copyright law, for reviewing of documents related to the present motion on short notice. 58. The actions of the Plaintiffs and their counsel forced Dr. Cooperstock to bring the present motion and to incur expenses unnecessarily: (a) (b) the Plaintiffs have unnecessarily commenced two separate proceedings in two different courts against Dr. Cooperstock, even though they could have commenced a single action before the Quebec Superior Court; counsel for the Plaintiffs unreasonably withheld her consent to a reasonable request for an extension of the deadline for filing the Statement of Defence even after she was informed about death in Dr. Cooperstock s family, contrary to paragraphs 4 and 30 the Principles of Civility for Advocates. 59. Even though the Plaintiffs do not oppose the motion for an extension, they made a substantial amount of prejudicial representations, which necessitated the present Reply, and caused Dr. Cooperstock to incur additional costs. 60. Thus, it is submitted that in the case at bar, ordering that the Plaintiffs fully indemnify Dr. Cooperstock for the expenses incurred in relation to the motion is warranted and also necessary to express the Honourable Court s disapproval of the conduct of the Plaintiffs and their counsel.

- 14-61. The Plaintiffs misstate the law with respect to availability of costs to lay litigants; indeed, Stevens v. Canada (Attorney General) cited by the Plaintiffs states the contrary: [19] I think that jurisprudence such as Okanagan above and respected authorities such as Orkin above represent for lay litigants an encouraging sense of shift in the common law on costs towards embracing compensation for the time of lay litigants. However, with specific regard to the Applicants in these two Federal Court matters, it has not moved so significantly that an assessment officer could ordinarily read the award of costs here as a Rule 400(1) exercise of discretion authorizing recovery from the Crown of compensation for their time. The alternative, which did not occur here, would have been a petition to the hearing judge for lump sum costs or for a direction to the assessment officer to allow something for their time. I therefore have no jurisdiction to allow costs for their time. [Emphasis added.] 62. Dr. Cooperstock submits that a lump sum costs of $500.00, inclusive of disbursements, would be appropriate in the circumstances. ALL OF WHICH IS RESPECTFULLY SUBMITTED. January 18, 2013 DR. JEREMY COOPERSTOCK 392 Grosvenor Street Westmount, Québec H3Z 2M2 Tel: 438-808-6463 jcooperstock@gmail.com Defendant / Moving Party