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 in 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 Blacklock's 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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