BETWEEN

I, Ritchie Sinclair, of the City of Toronto, in the Province of Ontario, SWEAR

THAT:

Background
1. I am a personal defendant herein and carry on business with my co-defendant, Garth Cole, as Friendship Enterprises, and as such have knowledge of the matters to which I hereinafter depose.

2. I am the principal web developer and am a co-owner of the web site called, "Toronto2", located at the Internet address of, "http://www.toronto2.com" (the "web site" or "our web site" or "my web site" or the "defendants' web site"), which is the subject of the plaintiff's claim. I have been using the Internet and developing web sites, on a non-professional basis, since in or about April of 1998.

3. I am an artist by training and by vocation, and have developed my web site together with my long-time friend and associate, Garth Cole. Garth Cole is otherwise employed, and he spends his spare time on the development of the web site.

4. The claim against my associate, Garth Cole, and me, involves serious allegations of deliberate trademark infringement, copyright infringement, and passing off. Pursuant to the Statement of Claim in the within action, the plaintiff is seeking $500,000.00 in damages and an interlocutory and permanent injunction to shut down my web site.

The Plaintiff's Allegation Regarding Copyright Infringement and Passing Off
5. On or about May 21, 1999, I received a letter by registered mail from the plaintiff's solicitors. Attached hereto to this my affidavit and marked as Exhibit "A", is a true copy of the aforesaid letter. This letter, in part, stated that it considered the 'framing' of the following web pages, a violation of the plaintiff's copyright:

a) Casa Loma;
b) Bata Shoe Museum;
c) Eaton Centre;
d) Movie Listings;
e) Electronic Edition of the Toronto Star; and
f) Star Careers classified advertising listings.

7. As an Internet user since in or about April of 1998, I had visited countless web pages that contained such 'frames', and as such did not agree that I had copied anybody's work or infringed anybody's copyright.

8. Every single page of my Internet site includes the address of my web site so as to permit viewers to identify the location and owner of the web site that they are visiting. The plaintiff's web site also contains this feature.

9. Furthermore, I verily believe that I, in no way, copied or reproduced the plaintiff's work. I was merely using the Internet's capabilities, which enabled visitors to my web page to visit the plaintiff's web pages while still connected to my web site.

10. In preparing the linked 'frames' to the plaintiff's web site, I had occasion to visit portions of the plaintiff's web site. I found the plaintiff's web site by following links from other web pages when I was looking for tourist attractions, which I believed might be of ancillary interest to people visiting my web site.

11. Because I never entered the plaintiff web site through the front page, but rather through other web sites which linked directly to the web pages which I eventually linked my web site to, I never saw the plaintiff's purported copyright notice. The plaintiff's purported copyright notice only appears on the front page of the plaintiff's web site, and does not appear on any of its other web pages.

12. Attached hereto to this my affidavit and marked as Exhibit "B", is a true copy of the plaintiff's copyright notice. This notice mentions nothing of a prohibition against 'linking' or 'framing'.

13. Nevertheless, since the six (6) 'frames' that the plaintiff's solicitors were objecting to, formed only a tiny fraction of my web site, and I did not wish to needlessly antagonize an obviously sensitive company, I removed all 6 (six) of the aforementioned 'frames' on or about May 22, 1999. To date, these frames remain removed, and I will not be replacing them on my web page. (See Exhibit "D", below, for a true copy of the 'links' section of the defendants' web site)

14. As of May 21, 1999, the date of the aforementioned letter, previously attached hereto as Exhibit "A", my web site was still under construction and was not ready to be viewed by members of the public. The web site, in its most preliminary form, was on-line from in or about late April, 1999. From May 16, 1999 through May 31, 1999, only forty-one (41) people visited the web site (see Exhibit "T", below, at paragraph #68).

15. In particular, the coding, or programming of my web site was incomplete. The aforementioned 'frames' were not yet programmed so as to allow a viewer to see my web site and the linked sites simultaneously on a split screen. I intended to complete this phase of the programming before the web site was open for use by the public.

16. Garth Cole and I commenced the design and development of our web site on or about February 28, 1999. Developing the web site required that the site be connected to the Internet notwithstanding that the site was still being constructed.

17. The web site was scheduled to be completed by on or about June 29, 1999, and this launch date was indicated on the front page of our site, just in case anybody happened to visit the site and thought that it was complete. It was intended that June 29, 1999 was the date on which promotion of the web site would commence and the public would be invited to visit the web site.

18. Accordingly, as of May 21, 1999, the date of the aforementioned letter sent by the plaintiff's solicitor, my web site was still being constructed, was incomplete, and was not advertised or promoted in any way, on the Internet or otherwise.

19. To date, I continue to develop and design my web site, however all of the services that I plan on offering through my web site, are not yet available.

The Plaintiff's Allegations of Trade-mark Infringement and Passing-off
20. The plaintiff's web site address is "http://www.toronto.com" and goes by the name "toronto.com", all in smaller case. The defendants' web site address is "http://www.toronto2.com", and goes by the name, "Toronto 2", beginning in a capital "T", and not including the suffix, ".com".

21. Attached hereto to this my affidavit and marked as Exhibit "C", is a true copy of the front page of the plaintiff's web site, printed on or about September 8, 1999.

22. Attached hereto to this my affidavit and marked as Exhibit "D", is a true copy of the front page of my web site, together with the links section of the site, printed in or about August and September, 1999.

23. Pursuant to Exhibit "C", previously attached hereto, the plaintiff's web site offers a directory and guide to the following services in connection with the City of Toronto:

a) hotels;
b) jobs & training;
c) movies;
d) restaurants;
e) shopping areas;
f) sports & leisure;
g) business to business;
h) community;
i) news;
j) weather; and
k) classifieds.

25. Pursuant to Exhibit "D", previously attached hereto, the defendants' web site offers or intends to offer in the future, the following content:

a) free electronic mail;
b) on-line web site building;
c) communications tools; and
d) electronic commerce.

27. On-line web site building is available to individuals on a without charge basis and is available to businesses at cost. This means that persons may design and create their own web site that is connected to the Toronto2 web site.

28. Communications tools are available to all persons visiting the Toronto2 web site. Communications tools, such as discussion boards, chat rooms, and games rooms, are or will be available to enable visitors to the Toronto2 web site to meet, interact, and discuss things with other visitors.

29. Attached hereto to this my affidavit and marked as Exhibit "E" is a true copy of the "glossary" portion of our web site which explains all of the different services that I offer or intend to offer through the Toronto2 web site.

30. The web site "Toronto2" is the latest project from Friendship Enterprises which has a longstanding tradition of developing projects that intertwine involvement in the community with not-for-profit business.

31. Since in or about 1984, Garth Cole and I have from time to time carried on various activities under the name "Friendship Enterprises". These activities integrated business with community involvement. For example, in or about 1998, we developed and implemented the "Heartfelt Project" which sent thousands of crests to the bereaved relatives of the victims of the Swissair crash in Nova Scotia, as tokens of remembrance. In or about the early 1980's, we developed and implemented a federally funded program for inner-city youth in Toronto.

32. In or about December of 1998, Garth and I conceived of an Internet project, which would be the latest in our joint efforts to enrich our communities through not-for profit ventures. This project was the "Toronto2" Internet site. The site was intended to be a place where the people of the City of Toronto could communicate with each other and buy and exchange goods and services from each other. The Toronto2 site was to be the flagship web site for a series of web sites throughout North America that was to be called the "Canada2 Network". The series, or 'family' of web sites all used the number, "2" to indicate a 'parallel' or 'second' community in cyberspace. Attached hereto to this my affidavit and marked as Exhibit "F", is a list of the Internet addresses that Friendship Enterprises owns that form the Canada2 Network.

33. Although making a profit was not a motive for wanting to establish the site, it was hoped that if the site were successful, there would be enough revenue to maintain the site, grow the site, and provide services to the community without charge. Furthermore, Garth Cole and I, along with other volunteers, might some day be nominally compensated and reimbursed for our efforts.

34. In or about February of 1999, I conducted a search of the "Web Interface to Whois" located at the Internet site of Network Solutions Inc.. Network Solutions is an international body entrusted with administering the registration of Internet addresses. The "Whois Interface" enabled me to search available addresses on the Internet.

35. My aforementioned search revealed that the Internet address (also known as a "domain name") of "http://www.toronto2.com" was available to anyone who registered it.

36. On or about February 28, 1999, Network Solutions registered the address "http://www.toronto2.com" in the name of Friendship Enterprises for a fee of U.S. $70.00. Attached hereto to this my affidavit and marked as Exhibit "G" is a true copy of the Network Solutions registration entry.

37. Network Solutions has registered numerous Internet addresses or domain names that include the word "Toronto". For example, attached hereto to this my affidavit and marked collectively as Exhibit "H" are true copies of twenty-eight (28) Network Solutions registrations of Internet addresses, which all include the word "Toronto" in their address, searched and printed by me from the Network Solutions registry on or about August 22, 1999. Included as Exhibit "I" is a list of about one-thousand and eighteen (1018) Internet addresses that begin with the word "Toronto" searched and printed by myself on or about September 15, 1999.

38. I verily believe that my search of the Network Solutions registry that revealed the one-thousand and eighteen (1018) revealed hundreds more Internet addresses that include the word, "Toronto", for which I have not printed and attached the evidence of to my affidavit.

39. Among the one-thousand and eighteen (1018) registered Internet addresses (not all of these addresses are currently operational, though they are all registered for use) that are attached to my affidavit as Exhibits "G" and "H", are the following:

i) 4toronto.com
ii) toronto4us.com;
iii) toronto411.com;
iv) toronto2012.com;
v) toronto2000.com;
vi) toronto2k.com;
vii) toronto24.com;
viii) toronto21.com;
ix) torontoguide.com;
x) toronto7.com;
xi) toronto360.com;
xii) toronto1.com;
xiii) toronto8.com;
xiv) toronto12.com;
xv) toronto-canada.com;
xvi) toronto-a-to-z.com;
xvii) toronto-crimestoppers.com;
xviii) toronto-best.com;
xix) torontolearningcafe.com;
xx) torontolinks.com;
xxi) torontopubliclibraries.com;
xxii) torontotaebocentre.com;
xxiii) torontohydro.com;
xxiv) torontosaab.com; and

41. I along with my friend and associate, Garth Cole, decided that our web site should have a name and Internet address that included the word, "Toronto", so as to indicate that our web site's content was related to the City of Toronto. We selected, "http://www.toronto2.com" because it seemed to convey that the site was a 'second' or 'parallel' City of Toronto in cyberspace.

42. Our web site address and name was not selected with the intention of mimicking or copying the plaintiff's web site address or mark. Furthermore, we did not select our web site address and name with the intention or purpose of misleading the public into believing that our web site was actually the plaintiff's "toronto.com" web site. Nobody that has visited our site has ever indicated to us in any way that they were under the impression that the plaintiff produced our web site.

43. There are numerous other Internet web sites which are comprised of guides and directory-type services in connection with the City of Toronto. For example, attached hereto to this my affidavit and marked as Exhibit "J", is a true copy of the front page of the web site (printed September 21, 1999), "4Toronto", which is located at the Internet address of "http://www.4toronto.com".

44. Attached hereto to this my affidavit and marked as Exhibit "K", is a true copy of pages of the web site called "Yahoo.ca" (printed September 21, 1999), which is located at the Internet address of "http://www.yahoo.ca", which contains a directory of services in connection with the City of Toronto.

45. The Corporation of the City of Toronto has its own official web site located at the Internet address of "http://www.city.toronto.on.ca". Attached hereto to this my affidavit and marked as Exhibit "L", is a true copy of the front page of the City of Toronto's official web site.

46. Attached hereto to this my affidavit and marked as Exhibit "M", is a true copy of the Internet web site called "Tourism Toronto" (printed September 22, 1999), which is located at the Internet address of, "http://www.tourism-toronto.com" and offers a directory and guide to the City of Toronto.

47. Attached hereto to this my affidavit and marked as Exhibit "N", is a true copy (printed September 21, 1999) of the front page of the web site called "TORINFO.COM", which is located at the Internet address of, "http://www.torinfo.com".

48. Attached hereto to this my affidavit and marked as Exhibit "O", is a true copy (printed September 21, 1999) of the front page of the web site called "Show Me Toronto", which is located at the Internet address of, "http://www.showmetoronto.com".

49. Attached hereto to this my affidavit and marked as Exhibit "P", is a true copy (printed September 21, 1999) of the front page of the web site called, "Access Toronto", located at the Internet address of, "http://www.accesstoronto.com".

50. Attached hereto to this my affidavit and marked as Exhibit "Q", is a true copy of the front page (printed September 21, 1999) of the web site called, "Where Toronto", located at the Internet address of, "http://www.wheretoronto.com".

51. Attached hereto to this my affidavit and marked as Exhibit "R", is a true copy of the front page (printed September 21, 1999) of the web site called, "Bizlook", located at the Internet address of, "http://www.bizlook.com".

The Nature of the Proceedings

52. The within action was commenced by Statement of Claim, issued June 24, 1999.

53. I was not served with the Statement of Claim until on or about July 20, 1999; nearly a full month after the Claim was issued.

54. I was served with the within motion for an interlocutory injunction (returnable August 9, 1999) on or about, August 4, 1999; only fourteen (14) days after I was served with the claim, before I even filed my Statement of Defense. I filed my Statement of Defense on or about August 19, 1999.

55. On or about June 1, 1999, which was about three-weeks before the Statement of Claim in the within action was issued, the plaintiff was sent via its solicitors, two (2) Examiner's Reports from the Canadian Intellectual Property Office, in connection with their pending applications for the registration of their two marks; "toronto.com" and "toronto.com everything you want to know about T.O.". Attached hereto to this my affidavit and marked collectively as Exhibit "S" are true copies of the aforesaid Examiner's Reports.

56. I verily believe, that pursuant to the aforementioned Examiner's Reports, the plaintiff was advised that "toronto.com" was not considered a trade-mark and as such was likely not registerable.

57. I verily believe, that pursuant to the aforementioned Examiner's Reports, the plaintiff was advised that another company, REALCANADA Networks Inc., had an application co-pending for the registration of a similar mark, "condostoronto.com".

58. About three weeks after receiving the aforesaid Examiner's Reports, the plaintiff commenced the within action, and sought in part, a Declaration as to its "ownership" of its "trade-marks".

The Attempt to Terminate the Defendants' Web Site
59. The motion for an interlocutory injunction that the plaintiff has brought and that I make this affidavit in opposition to, chiefly seeks to enjoin me from continuing to operate my web site by enjoining me from continuing to use my registered Internet address.

60. If I am enjoined from continuing to operate my web site from the aforementioned address, and am further prevented from calling my web site "Toronto2", I will no longer be in business. My web site's only business location, other than Garth Cole's apartment, is its Internet address. It would be futile to continue to produce the Canada2 Network without the flagship web site of Toronto2, representing Canada's largest city. Furthermore, my web site concept and business requires that I have an Internet address and name which indicates that my web site relates to a 'parallel' or 'second' City of Toronto.

61. If I have to shut down my web site pursuant to an interlocutory order, my entire business will be terminated. I verily believe that my web site name and address is my business' entire identity, as it is the only place of business that my web site has, by definition, on the Internet. Taking away my web site address effectively takes away the location of my business. Even if I were to use a different Internet address and web site name pending the resolution of this action at trial, any goodwill that I would accumulate in the interim would be difficult, if not impossible, to transfer back to my original address and name of "Toronto2".

62. If my web site were to be shut down pursuant to an interlocutory injunction, I would remain liable to the Internet Service Providers, Syne-Post Communications Inc. and Critical Path Inc., for the balance of my contract for the provision of Internet services in the minimum amount of $550.00. Paying these monthly installments in consideration for Internet service, without an operating web site, represents a substantial and unaffordable financial liability for me.

63. The contract expires as of in or about May, 2000. I verily believe that in the absence of any revenue generation from my web site as a result of its closure pursuant to an interlocutory injunction, we will be unable to keep up payments, and my Internet Service Providers will cease being interested in continuing to provide joint-venture support for my web site.

64. As part of the development process of our web site, Garth Cole and I, brought on-board ten (10) volunteer web site agents and ten (10) volunteer web site developers. The volunteer agents were retained to offer businesses and community groups an Internet web site connected to Toronto2, at a nominal cost. The volunteer web site developers were retained to design and implement the aforementioned web sites. All of the volunteers were promised $100.00 honoraria for each web site project that they worked on.

65. I verily believe that if my web site were to be shut down, these volunteers would move on to other projects and would not be available if the injunction were to be lifted after trial.

66. If my web site were shut down pursuant to an injunction, I verily believe that it would be next to impossible for me to continue to solicit strategic partners, sponsors, investors, members, and volunteers for a site that did not exist in fact.

67. Even if the plaintiff were ordered to pay money damages following trial, as a result of their unjust interlocutory injunction, it would not compensate for the loss of our web site nor compensate for the interim harm to our dignity and reputation in the Internet community.

68. My web site has enjoyed modest visitations by the public since I began to record such visits commencing on or about May 16, 1999. These visits average about four (4) to six (6) visits per day. I intend and plan on increasing these visits as my site is improved and promotion commences. Attached hereto to this my affidavit and marked as Exhibit "T", is a true copy of the counter statistics for my web site, from May 16, 1999 to September 21, 1999, which I verily believe are accurate. Also appended to Exhibit "T" are true copies of various counter statistic break-downs.

69. Defending the plaintiff's law-suit against me has taken up a substantial amount of valuable time that I had previously intended to dedicate to the development and promotion of my web site. To date, we have generated no revenues from our web site.

70. I make this affidavit in opposition to the plaintiff's motion for an interlocutory injunction, and for no other or improper purpose.
_______________________

Ritchie Sinclair

Sworn before me at the City )

Of Toronto, in the Province )

Of Ontario, this 21^st day of )

September, 1999. )

)

)

_______________________ )

A Commissioner for Taking

Affidavits

Zak A. Muscovitch