Blacklock’s Got Much of What it Wished For – For Now: Will This Be About “Be Careful What You Wish For”?

I recently blogged about Blacklock’s “mega motion” of December 12, 2018 concerning its “litany of litigation”.

Blacklock’s was seeking to:

·       Amend old pleadings to add a new cause of action involving circumvention of technical protection measures. This comes more than two years after Justice Barnes ruled during the trial of the first case in 2016 that circumvention of TPMs has not been pleaded and allegations and arguments based on this would not be heard by the Court. Frankly, even if circumvention had been properly pleaded at the original trial, it’s very likely, as explained below, that it would have failed on the facts before the Court and any correct interpretation of the law;

·       Convert these “simplified actions”, which had an upward limit of $50,000 in terms of liability, into normal actions with an enormous theoretical damage potential based, inter alia, upon the assertion that “Statutory damages for circumvention of a TPM may include statutory damages for the library of works behind the TPM. The Locked Articles subject to potential statutory damages in each of the Blacklock's cases is in the 1000's.” (footnote omitted); and,

·       To seek punitive damages based upon extraordinarily unusual and even “personal allegations” and “personal attacks” (according to the Attorney General of Canada) on the Government’s lead senior counsel up to now, Alexandre Kaufman, which might have resulted in his removal from the file.

I attended most of the hearing on December 12, 2018 and, after setting out some possible outcomes, wrote that:

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”?”

That seems to be what has transpired. Here is Case Management Judge (CMJ) Milczynski’s Order dated January 29, 2019.  The bottom line is that Blacklock’s will be allowed to make some of the amendments it asked for, but some may not get very far if Blacklock’s proceeds. The Court explicitly indicates that summary judgment may be available at least on the limitation period issues in several of the files.

I have written at some length about how Blacklock’s faces a very uphill battle on the issue of circumvention of technical protection measures and trying to establish liability leading to a pot of gold at the end of the rainbow based upon statutory damage for each of the hundreds or thousands of individual articles on its website.

On the most dramatic issue in the motion concerning which Blacklock’s launched an extremely unusual professional and even allegedly “personal” attack on former Attorney General of Canada (“AGC”) lawyer Alexandre Kaufman and sought to parlay these attacks into a punitive damages award, I indicated in my January 16, 2019 blog:

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.

Blacklock’s was shot down unequivocally on this issue by the CMJ:

None of what transpired gives rise even to the semblance of misconduct that would warrant punitive damages, or to any cause of action. I am satisfied that it is plain and obvious and without any doubt that this claim would necessarily fail. Those amendments shall not be allowed.

It will be very interesting to see what the cost consequences of this part of the ruling may be, considering that these allegations concerning Mr. (now Master)  Kaufman consumed a major portion of the nearly 3,000 page mega motion record and much the oral submissions to the Court, even following the questioning by the Court at the outset as to whether Blacklock’s new counsel really intended to proceed on this issue.  Coincidentally just days earlier, Alexandre Kaufman had been appointed as a Master of the Superior Court of Ontario. Blacklock’s is apparently still somehow fixated on Mr. (now Master) Kaufman, as this recent February 3, 2019 tweet by Ms. Holly Doan suggests:

“He’s hearing cases as we speak!” - Alex Gay, @JusticeCanadaEN, DECEMBER 12, Federal Court.  @ccla_abcc: https://t.co/7F1djskBc1 @DM_SMJustice @howardknopf  #classic #comedy

— Holly Doan (@hollyanndoan) February 3, 2019

The bottom line is that Blacklock’s has gotten its wish to pursue some circumvention cases. It still has major potential obstacles to overcome to get to trial, including the possibility of summary judgements on the limitation period issues in several files.

It remains to be seen whether Blacklock’s should be commended or consoled for its tenacity. Time will surely tell.

HPK