CIPPIC Rebuffs Blacklock’s Bid to Block Intervention in Summary Judgment Motion

www.blacklocks.ca

Blacklock’s has a lengthy list of losses in its long litany of litigation against the federal government and many of its agencies. I have blogged about this many times.

It will be recalled that Blacklock’s lost decisively on fair dealing back in its first test case against Finance Canada in a judgment dated November 10, 2016 that was not appealed.  Blacklock’s had, for whatever reason, not pleaded anything about Technical Protections Measure (TPM) circumvention, so there was no ruling on that issue. It has attempted to refloat its definitive defeat on fair dealing via new claims in numerous proceedings based on alleged TPM circumvention.  As I have reported, Blacklock’s was unable to stop the Attorney General’s summary judgment motion that may well finally end this this litigation saga.

Blacklock’s latest loss is its unsuccessful attempt to stop CIPPIC from intervening in the summary judgment proceeding. As most readers well know, CIPPIC has a long list of interventions in the public interest. I was and still remain proud to have been CIPPIC’s outside and lead counsel in its first and very influential intervention which was in the BMG v Doe case back in 2004-2005. See here in the Federal Court and here in the FCA. This was the beginning of mass copyright litigation in Canada. The reasoning in these judgments has helped keep Canada relatively free so far from the outrageous excesses we have sometimes seen in the mass trolling cases in the USA. Here’s a pair of complementary articles that I and opposing counsel wrote back in the day in  2005 when such civilized controversies, confrontations, and collaborations on commentaries were still possible.

Since then, CIPPIC has been involved with many interventions in copyright and other cases – including in the SCC.

Flash forward to 2021-2022. Blacklock’s fiercely resisted CIPPIC’s motion to intervene in the summary judgment motion on the basis that:

“…CIPPIC has no “legitimate” interest in the outcome of the proceeding, that the scope of its proposed intervention does not differ from that of the AGC; that it is not in the interest of justice to allow the proposed intervention because BR will suffer prejudice as a result of CIPPIC’s “perceived bias” and “apparent vendetta” against it, and that it will result in an “inequality of arms” and unduly complicate this already protracted litigation”

and that Blacklock’s:

‘…will be prejudiced because CIPPIC is “motivated by bias”, that its Executive Director and General Counsel has a “vendetta” against BR, and is on a “crusade” as a result of past litigation before the Federal Court and the Ontario courts, and that “[his] position and influence over CIPPIC negates any possibility of fairness”’

(highlight added)

Unsurprisingly, the Case Management Judge Sylvie M. Molgat rejected these very surprising and unusual allegations. The result is that CIPPIC will be now be permitted to file a 20 page Memorandum of Fact and Law. The Supreme Court of Canada now allows interveners only 10 pages, so this is significant. CIPPIC will also be permitted to make present oral submissions, for such duration as may be determined by the hearing judge.

Here is CMJ Molgat’s Order, dated January 21, 2022, which is unusually detailed for such an order. Readers should note that interventions are rare in the Federal Court.

Here is CIPPIC’s motion to intervene – which provides a preview of what we may expect to see and hear. CIPPIC will be represented by James Plotkin who has just recently joined Gowling WLG.

I’ll post updates as this moves forward. The motion will be worth watching for sure.

 HPK