Wednesday, January 16, 2019

Update on Blacklock’s Mega Motion of December 12, 2018


I attended the Blacklock’s motion hearing on December 12, 2018 which I have previously written about including links to the key portions of the almost 3,000 page mega motion record filed by Blacklock’s and the responding material. I missed the first part of the hearing, but I have heard all about the part I missed from various reliable sources. Here’s my overall impression.

Blacklock’s proceeded with its extremely unusual professional and even allegedly “personal” attack on former Attorney General of Canada (“AGC”) lawyer Alexandre Kaufman – who had coincidentally just days earlier been appointed as a Master of the Superior Court of Ontario. After initial comments by the Case Management Judge, and prior to making his submissions, Blacklock’s counsel confirmed that he was aware that Mr. Kaufman was no longer with the Department of Justice and that he would still be proceeding on the Kaufman part of the motion.
Blacklock’s somehow is trying to parlay these attacks into a punitive damages award. This attack, of course, could potentially backfire badly – not only against Blacklock’s but potentially even against Blacklock’s new counsel personally. The Justice lawyers gave clear notice that they may seek such a costs award.  The matter of costs will presumably be addressed after the Case Management Judge rules on Blacklock’s mega motion.
It is interesting to note that the attacks on Mr. Kaufman were not confined to allegations in the court documents. Blacklock’s through its two owners and operators Tom Korski and Holly Doan made some serious allegation in one of its few unlocked articles as referred to the AGC’s motion material:
On Apri3 23, 218, Mr. Korski wrote an article for Blacklock's entitled "Justice Dep't Bullies Reporters" which reported that "[o] lawyer representing Attorney General Jody Wilson-Raybould privately coached" writers to withdraw their affidavit in an "apparent witness tampering scheme”.

Here is what Mr. Korski’s article said:

The Department of Justice threatened Parliamentary Press Gallery reporters with contempt of court in an apparent witness tampering scheme, records disclose. One lawyer representing Attorney General Jody Wilson-Raybould privately coached Blacklock’s writers to withdraw sworn oaths filed in a federal copyright case(highlight, underline and emphasis added)

The AGC material also refers to tweets by Holly Doan “alleging witness tampering”. Here are some of her currently posted tweets that mention “witness tampering”, including at least one referred to in the AGC material.

Attacks on the conduct of opposing counsel, especially government lawyers, are mercifully extremely rare in Canada. The most dramatic reported case of an attack on the conduct of an adversarial lawyer involved Casey Hill, as he then was, who was involved as an Ontario Crown attorney in very serious litigation against the Church of Scientology.  Following the 1984 attack on him in public on the steps of the courthouse by high profile lawyer Morris Manning who was then counsel for the Church of Scientology and who was wearing his gown and reading from notice of motion material, Mr. Hill was subsequently awarded $1.6 million in damages in a defamation action against the Church of Scientology and Morris Manning personally. This was the largest defamation award at the time in Canada and a very high profile Supreme Court of Canada case, frequently written about online and elsewhere.  See Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130, 1995 CanLII 59 (SCC). Mr. Hill went on to be appointed in 1995 as a Judge of the Ontario Superior Court. I am not comparing Blacklock’s and its new counsel’s attack with that of Scientology and Manning against Casey Hill, either factually or legally. I’m merely making the point that any attack on the professional conduct of an adversary’s counsel, and particularly a government counsel, is very rare and can, when appropriate and depending on the circumstances, have extremely costly consequences for the party making the allegations and even the counsel advancing them.
Also, in terms of costs, it is worth noting that even successful attempts to amend pleadings can result in very expensive costs awards to compensate for prejudice – such as vast amounts of wasted time.

The Justice lawyers were methodical and understated and even conceded that a few amendments of pleadings might be allowed in a few of the litany of cases against the Government – but that most were out of time and contrary to rules and jurisprudence. They presented useful charts and concluded that most of the proposed amendments had “no reasonable prospect of success” – which is the legal test that could be fatal under the circumstances to most of the substance of this mega motion.

In this regard, the Justice lawyer who spoke to the legal issues – Sarah Sherhols -  looked carefully at the meaning of “access control” and provided a very useful American case – namely L.M.S. Inquiry v Berkshire 307 F. Supp. 2d 521 . The gist of the argument would seem to be that there has been no “circumvention” in the current cases. No locks were broken, picked, or hacked. The keys to the alleged locks – namely the passwords – were supplied by Blacklock’s. Whether or not there was breach of contract, or even copyright infringement –  notwithstanding Judge Barnes clear ruling on fair dealing – this was very arguably NOT “circumvention”. American law is clear on this point.  She pointed out how the Nintendo decision was useful in one respect in terms of a definition – but that the precedential value of that decision is very is limited by the circumstances in which it was rendered, which was not much different than a default proceeding. I have discussed the precedential value – or lack thereof – of the Nintendo decision at length on my blog. It is an interesting coincidence that the law firm that failed to provide final defence arguments in the Nintendo case is the same firm now representing Blacklock’s.

Very interestingly, I’m reliably informed that, following the morning submissions, additional security was added in the courtroom in the form of an armed RCMP officer. This is extremely unusual in these types of hearings.

It is interesting to recall the Justice Barnes’s words in his costs judgment (upheld by the Federal Court of Appeal in a ruling from the Bench linked to and discussed here) in the only Federal Court trial to date in the litany of litigation:
[7] …I also reject the Plaintiff's argument that this case raised "strong public interest considerations". Rather, this case was about the Plaintiff's attempt to recover disproportionate damages without any apparent consideration to the legal merits of the claim or to the costs that it imposed on the taxpayers of Canada.
[8] Any reporter with the barest understanding of copyright law could not have reasonably concluded that the Department's limited use of the subject news articles represented a copyright infringement. Indeed, the fair dealing protection afforded by section 29 of the Copyright Act, RSC, 1985, c C-42, is so obviously applicable to the acknowledged facts of this case that the litigation should never have been commenced let alone carried to trial.
 [9] I am also troubled by Plaintiff's attempt to claim an excessive amount of damages beginning with its demand for compensation completely divorced from the Department's limited use of the two articles. In no circumstances would Blacklock's losses have exceeded the cost of individual subscriptions by the six officials who read the articles; yet Blacklock's demanded a license fee equivalent to its bulk subscription rate of over $17,000.00. This practice appears to be consistent with Blacklock's usual approach which is to hunt down, by Access to Information requests, alleged infringers and then demand compensation based on an unwarranted and self-serving assertion of indiscriminate and wide-spread infringement. The record discloses that in several instances government departments acquiesced for business reasons and paid the full amounts demanded. In this instance the Department appropriately took a hard line and succeeded in its defence.
(highlight, underline and emphasis added)

So, to reiterate from my previous blog, “Will this turn out for Blacklock’s to be an example of the old adage about “be careful what you wish for”?”


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