Wednesday, September 01, 2021

Never Say “Never on a Sunday”. Has Blacklock’s Bottomed Out with Another Black Eye – Yet Again?

(Here's the famous "Never on a Sunday" chorus of the Connie Francis classic)

Blacklock's protracted attempt to stop summary judgment proceedings that it had long ago agreed to has resulted in yet another black eye in its long losing litany of litigation.

 Let me repeat myself from my recent blog wherein I repeat my quotation from the Attorney General of Canada (“AGC”) submissions:


1.            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.

2.            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 CourtAn 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.

3.            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.

4.            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.

5.            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.

6.            The AGC requests that the appeal be dismissed, with costs.

Blacklock's announced during as per para. 4 above on a Friday that it would discontinue its Parks Canada action, which is one of its long litany of more than a dozen cases against the Federal Government and several of its agencies.

However, for whatever reason, it did not immediately file its discontinuance. So, over the ensuing  weekend, the Attorney General of Canada ("AGC") amended its pleading and, with considerable ingenuity and professional dedication, served on a Sunday a counterclaim on Blacklock's by email, the receipt which Blacklock's lawyer acknowledged.

Blacklock's didn't actually play its discontinuance card until first thing the following Monday morning - but the AGC's amended pleading and counterclaim were already there. 

Despite Blacklock’s enormous efforts, the Case Management Judge ruled that the AGC’s amended pleading and counterclaim was validly filed – on a Sunday – and ahead of time of Blacklock’s belated discontinuance.

So - more than a year later and after an enormous motion record from Blacklock's the Court has ruled in favour of the AGC. See the Judge’s ruling on Blacklock’s unsuccessful appeal attached here, which for some reason has not yet been posted on the Federal  Court’s website but which is a public and precedential document.

Although Blacklock's could theoretically appeal this Judge’s order, success would frankly seem very unlikely. Any Federal Court lawyer will understand the standard of review and other obstacles that Blacklock’s would face.

There's some important procedural lessons in this case for Federal Court procedural nerds. Most notably that “Never on a Sunday” may be a great song for Boomers but it doesn’t apply in the Federal Court. Service on a Sunday may very well be good service – both legally and, in this case, for the taxpayer.

The real lesson is “Never Say ‘Never On Sunday’”….

More importantly, it looks like the AGC can now get to proceed to dispose of Blacklock's belated TPM argument by way of a summary judgment that could effectively bring an end to the long litany of losses by Blacklock’s in the Federal Court.

 It will be recalled that Blacklock's lost badly in its first Federal Court trial on the issue of fair dealing nearly five years ago  - and got nowhere on the issue of TPMs because the issue had not been pleaded. Somehow, Blacklock's was able resurrect the TPM issue in subsequent proceedings - but this would seem to be a long shot and fair dealing will continue to loom large. CIPPIC may become involved when this matter moves forward substantively.

It's hard to understand how Blacklock's sustains its business model and funds its long list of losses in the Federal Court. It must be admitted that Blacklock's is nothing if not tirelessly – some might say tediously – tenacious.

However, the end of all of this may now be in sight - to the relief of taxpayers and very likely most informed copyright lawyers from coast to coast.


 PS - Justice McDonald's ruling of August 25, 2021 is now officially posted here: 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2021 FC 872 (CanLII) <>