Tuesday, August 13, 2019

Blacklock’s Tendentious and Tenacious Litany of Litigation – the Latest (Lack of) Developments



Here’s an update since my last blog concerning Blacklock’s “litany of litigation” (as I have described it)  against the Attorney General of Canada (“AGC”) and several federal agencies. On July 2, 2019 the Case Management Judge, Prothonotary Sylvie Molgat, directed that ‘"The parties are to provide, by no later than July 22, 2019, (i) a jointly proposed timetable leading up to the hearing of the Defendant's motion for summary judgment; (ii) their joint availability for a case management conference; and (iii) an agenda of the issues to be discussed at the CMC."’ Here’s a link to the main docket in the long litany of litigation.

However, Blacklock’s appears to be resisting. On July 17, 2019 Blacklock’s filed a letter, attached, from its counsel, Scott Miller, seeking to change the channel from the process that had apparently been agreed to for the determination of the AGC’s summary judgment motion in the Parks Canada action. Blacklock’s sought, instead, to proceed with another file involving Health Canada. Mr. Miller’s letter includes the following:
Blacklock's instructions are to proceed to the case management conference without a timetable for the summary judgment motion in Parks Canada (T-1862-15). As such, MBM is not able to provide a timetable leading to the hearing of the Defendant's motion. MBM has advised the AG accordingly.
Blacklock's instructions are to proceed to the case management conference (CMC) on the basis that the consent to summary judgment motion was only to answer the question of law: Does fair dealing (s.29) apply to circumvention of a TPM (s.41)? (see letters to the April 5, 2019, April 5, 2019, April 18, 2019 and June 26, 2019).
Therefore, Blacklock's continues to maintain that it cannot agree to the timetable for the motion which would include findings of fact which ultimately would not need to be determined if s.29 does not apply to s. 41.
Blacklock's asks the agenda for the CMC to address the aforementioned and a determination of whether Health Canada (HC) (T-117-17) may proceed. Blacklock's has continually sought to have HC proceed and was led to believe that the summary judgment motion in Parks Canada would ultimately merely accelerate same. If HC proceeds, the AG has been advised that it is their prerogative to proceed with a summary judgment motion in that matter.
(highlight added)

The AGC was clearly displeased with Blacklock’s submission and replied the same day in the attached filed letter from counsel Alexander Gay, which includes the following paragraphs:
To the Attorney General's surprise, counsel for the Blacklock’s has now proposed an agenda for the next Case Management Conference where he wished to discuss a timetable in relation to the Health Canada action and not the Parks Canada action. He has requested that the Attorney General bring the motion for summary judgment in the Health Canada action and not the Parks Canada action. This is after he had apparently consented to having a motion for summary judgment heard in the Parks Canada action and after having had the benefit of the Attorney General's Affidavit evidence for months in the Parks Canada action.
Counsel for the plaintiff is resiling from an agreement to have a motion for summary judgment heard in the Parks Canada action. The position advanced by plaintiff’s counsel is that he never agreed to having the Attorney General file affidavit evidence in support of a motion for summary judgment, even though it is contemplated by the Rules. Rather, he contends that the motion should be on a point of law only. With the greatest of respect, there is a distinction between a motion for summary judgment and the preliminary determination of a legal issue. What was agreed upon was a motion for summary judgment which calls for evidence.
(highlight added)

Readers may wish to read the entire unusual exchange in full. The letters are short and trenchant.

It will be interesting to see how the Court responds to this apparent stalemate that appears to be contravention of the Court’s directions. On April 11, 2019 the Court had issued a direction containing the following unusual language that appears to suggest some degree of exasperation even then:  ''Directions having been issued during the case management conference of April 4, 2019, the Court expects them to be complied with.” (highlight added)

Blacklock’s appears to be both very tendentious and tenacious its “litany of litigation” against the federal government in the Federal Court, which has been going on since 2014. I have been blogging about it off and on since 2015. Here are my blogs in reverse chronological order.

I will report on the Court’s response as soon as it is publicly available to the correspondence noted above.

HPK

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