trying to block the efforts of the Attorney General of Canada (“AGC”) to seek via
a counterclaim a summary judgment ruling that might end the seemingly endless litigation attempts by Blacklock’s going back to about 2014 and its attempt to refloat its definitive defeat on fair dealing via a new claim based on Technical Protections Measures (“TPM”).
There is an
important motion brought by Blacklock's pending in the Federal Court returnable August 10, 2021.
Anyone interested in watching should seek permission at least two days in
The file is:
- T-1862-15 - 1395804 Ontario Ltd. v. The Attorney General of Canada
The AGC is attempting
to proceed with a summary judgment motion that could potentially resolve all of
the litany of cases against the AGC and various federal agencies promptly and
efficiently. which is concise and readable. I won’t post Blacklock’s motion
material because it is extraordinarily lengthy at 1,298 pages and 25,914
KB. I’m always happy, in the public interest, to post public domain material or
material for the purpose of fair dealing without a paywall. But in this case,
it’s just too cumbersome. Blacklock’s itself is, of course, free to post some
or all of it. Maybe it will even do so without a paywall.
I have blogged
several times before about Blacklock’s and elsewhere on my blog.
BTW, CIPPIC is
attempting to intervene in the substantive motion for summary judgment, once it
Here, in the AGC’s
own words, is the Overview of the AGC’s response. The highlighting and emphasis
is mine. The AGC’s submissions have not yet been ruled upon – but presumably will
be on or after August 10, 2021.
This is a bold move
by the Plaintiff to set aside a discretionary Order of the Case Management
Judge Molgat and avoid a motion for
summary judgment which it has been trying to avoid for almost two years. There is no basis in fact or law to set the Order aside. The
motion must be heard.
On April 4, 2019,
the Attorney General of Canada (AGC) proposed a motion for summary judgment in
respect of the Technological Protective Measures (TPM) claims contained
in the Parks Canada action at a Case Management Conference (CMC). The TPM claims are the only remaining dispute between the Plaintiff and
the AGC, given
that Justice Barnes had already concluded that the institutional use of the
articles published by the Plaintiff constitute a “fair dealing” under the Copyright
Act. The results of the proposed motion would dispose of fourteen actions that
are before the Federal Court. An agreement was reached by all counsel at the
CMC. With the exception of
the Plaintiff, everyone in attendance at the CMC, including the Case Management
Judge, had a clear understanding on what was agreed to.
Upon being advised that the AGC would be leading evidence
in the motion for summary judgment, a matter clearly provided for under the
Federal Court Rules, the Plaintiff reneged on the agreement and spent the next
two years trying to derail the motion for summary judgment. As explained in
this factum, the conduct of counsel for
the Plaintiff has been contemptuous of the Court, and include such things as
the disregard of numerous Court Directions.
After two years of resisting and
after it was clear that the Plaintiff could no longer avoid the motion, the Plaintiff gave notice that it would
discontinue the action. The surprise announcement came at a CMC in July 2021,
after the Plaintiff was ordered to comply with the Directions of the Court.
However, the Plaintiff did not file the Notice of Discontinuance immediately.
The AGC used the delay to serve and file a Counterclaim and it renewed the
motion for summary judgment under this new pleading, the very motion that the
Plaintiff had been resisting. The Case Management Judge allowed the Counterclaim and directed the
parties the set dates for the hearing of the motion. The Plaintiff now appeals
from that Order.
The AGC contends
that the Order of the Case Management Judge was appropriate and necessary.
There are no errors of law, mixed fact and law or fact. The motion will dispose of the remaining thirteen actions and,
more specifically, it will dispose of all TPM claims before the Court, even in
the Related Actions. The order of the Case Management Judge is in keeping with
Rules 55 and 385, which allow her to make decisions that allow for the most
expeditious means of adjudicating the claims that are before this Court.
The AGC requests that the appeal be
dismissed, with costs.
Be sure to tune in on August 14, 2021. The one good thing about COVID is that the Courts are now more accessible than ever. This is one to watch.
Update: August 26, 2021