The Blacklock’s FCA Appeal Hearing - October 7, 2025

 

The Federal Court of Appeal (“FCA”) hearing on October 7, 2025 in the Blacklock’s case was possibly the most unusual, if not bizarre, courtroom event I’ve ever seen.

The presiding Justice Wyman Webb started out by asking counsel for the appellant, Blacklock’s, even before he spoke, why the whole thing was not “moot”. He pointed out that Blacklock’s had long ago discontinued its copyright infringement action against the Attorney General (“AG”) and that the case being appealed was the result of the AG’s counterclaim. For those who may have forgotten the interesting procedural adventure that led to this result, see my blog about  Never Say “Never on a Sunday”. Has Blacklock’s Bottomed Out with Another Black Eye – Yet Again?

The Court repeatedly pointed out that Blacklock’s could only appeal the order issued below – and not the reasons for it. He pointed out that Blacklock’s had asked only that  “the Judgment of the Honourable Mr. Justice Roy dated May 31, 2024, be set aside” and had not asked for anything else from the FCA. There were no longer any copyright infringement issues on the table, given Blacklock’s discontinuance, and Blacklock’s had never sought a remedy for breach of contract.

Blacklock’s counsel was unsurprisingly surprised by the suggestion that the proceeding was now moot and spent a lot of time responding to questions from the bench about his lack of suggested relief other than setting aside Judge Roy’s order, which was this:

1.     It is hereby declared that, having purchased the only type of subscription available, which was allowing the acquisition of the password needed to access articles produced by Blacklock’s Reporter, Parks Canada’s use of the password in the circumstances of this case constitutes fair dealing under section 29 of the Copyright Act.

2.     It is hereby declared that the licit acquisition and use of a password, if it is otherwise a technological protection measure, does not constitute the circumvention of the technological protection measures of the Copyright Act.

3.     There is no order as to costs.

Blacklock’s counsel spent a lot of time on such matters as Oxford commas but didn’t get to much of the meat in Blacklock’s written submissions. He asked repeatedly in the morning and later in reply at the end of the hearing if he could amend his submissions to deal with other possible relief and adjourn to reconvene the hearing at a later date to deal with TPMs.  As for the fact finding and evidentiary rulings by the very careful Judge Roy below, it goes without saying that these things cannot be challenged in the absence of palpable and overriding error.

The AG pointed out that that Justice Roy’s order had “utility” and would be useful in the 14 or so other pending Blacklock’s cases where the facts might be similar and where issue estoppel might apply. CIPPIC spoke extremely briefly, although it could have addressed the Court at length, given the Court’s direction on timing and the AG’s comparatively brief submissions It did not address any of the substance in its factum.

The Court reserved and promised an early result. They did not quite rule from the bench. Oddly enough, one of the judges seemed to leave open the possibility of further submissions – though this would be extraordinary and unheard of to my knowledge.

IMHO, the logical and useful result would be for the FCA to simply deny the appeal on the basis that no palpable and overriding errors of fact or legal errors had been established.

What this would mean for future cases would, of course, depend on the facts of those cases.

Of course, one might wonder whether, even if Blacklock’s unexpectedly pulls a rabbit out of a hat, it has the resources and the will to press forward, given its long litany of losses in unresolved but similar litigation. Blacklock’s counsel pointed out several times that it had spend “hundreds of thousands of dollars” on this case. BTW, this case was started almost TEN YEARS AGO with a Statement of Claim filed on November 4, 2015. There have been 22 Blacklock’s copyright actions filed in the Federal Court going back more than 11 years. It has not won any of them. Blacklock’s plea that it is David fighting Goliath may be interesting to some people, but it is not a legal argument. Blacklock’s is the author of its own business model and its litigation strategy, which has thus far been nothing but a litany of losses.

HPK

(as usual, not legal advice)