I have
blogged about Blacklock’s war against fair dealing for over a decade during
which it has been protracting its long lasting litany of litigation losses.
This began notably with Justice Barnes’ 2016 decision in a case in which he ruled
against Blacklock’s and stated that “Although there are certainly some
troubling aspects to Blacklock’s business practices it is unnecessary
to resolve the Attorney General’s allegation that this litigation constitutes a
form of copyright abuse by a copyright troll.” See 1395804 Ontario Ltd. v. Canada
(Attorney General), 2016 FC 1255 (CanLII), [2017] 2 FCR 256, <https://canlii.ca/t/gvrbx>. Incidentally,
the Government’s lawyer on that case, Alexandre Kaufman, has since been
appointed as a judge of the Ontario Superior Court.
In 2024, the
Federal Court gave the Government another decisive victory in its long struggle
to resist the controversial business practices of Blacklock’s and its hostility
to fair dealing. The long and careful decision of the Federal Court by Justice
Roy – see 1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada
(Attorney General), 2024 FC 829 (CanLII), <https://canlii.ca/t/k4zfr> - ended with these declarations:
- 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.
- 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.
- There
is no order as to costs.
Blacklock’s
appealed. After more than 5 months following the October 7, 2025 appeal hearing,
which I
described as “ possibly the most unusual, if not bizarre,
courtroom event I’ve ever seen”,
the Federal Court of Appeal (“FCA”) has finally issued its judgment on March
19, 2026.. See 1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada
(Attorney General), 2026 FCA 56 (CanLII), <https://canlii.ca/t/kjxld>. The reasons for decision by Webb, JA conclude
that:
[43] As
a result, in my view, there is no practical utility in rendering either
declaration as neither declaration settles a “live
controversy” between the parties. Therefore, the Federal Court erred in
making the declarations. I would allow the appeal and set aside the Judgment of
the Federal Court. Rendering the Judgment that the Federal Court should have
made, I would dismiss the Attorney General’s motion for summary judgment with
respect to the requested declarations.
and goes on to award costs to Blacklock’s to be determined
if not agreed upon.
This ruling:
- Essentially says that Justice Roy was wrong to make the declarations that he did below but does not rule that the declarations were substantively wrong
- Incongruously and incorrectly concludes that there was no “live controversy” involved
- Incorrectly ruled that “these
declarations lack any practical utility” – notwithstanding that there are 14 or so similar Blacklock’s
cases against the Government involving similar issues that were awaiting reasoned
rulings from the Federal Court and Federal Court of Appeal and maybe the SCC
- Ignores key aspects of the lengthy procedural history below, in which Blacklock’s discontinued its copyright infringement claims and the AGC’s procedurally brilliant (“Never On A Sunday”) summary judgment counterclaim motion was blessed by the Federal Court despite Blacklock’s objection
- Technically gives Blacklock’s a win on appeal –
but it’s a classic pyrrhic victory
- Leaves the door open for Blacklock’s to continue the uncertainty and likely futility of its lengthy losing litany of litigation.
Justice Roy’s
judgment below is full of much careful fact finding and legal reasoning. Even
if it is now “obiter dicta”, it could still be very useful for the Government if
Blacklock’s goes forward with any of its other cases against the government
where the facts and issues are similar.
Blacklock’s
will get some measure of costs as a result of the FCA ruling, although the FCA
gave no reason to overturn Justice Roy’s declaration that there should be no
costs award, which was an unexplained and unnecessary act of sympathy in favour
of Blacklock’s. Justice Roy declared below that “There is no order as to
costs”. It is unclear why or even how the FCA could now go back and award costs
below to Blacklock’s.The Government
should play hardball on the costs issue, and there are well established prescribed
“tariffs” that are far from generous. The FCA has provided no reason to depart
from these tariffs. Whatever Blacklock’s gets, it won’t be enough even to cover
this case, much less to fund future pursuit of the other outstanding cases. This
costs award will be modest, given the way the Federal Courts work. See Federal Courts
Rule 407 and Tariff B.
It will be interesting to see if the Government tries to get
leave to appeal to the Supreme Court. This would be an uphill battle, since the FCA’s ruling is
really only procedural at the end of the day and confined to the peculiar
unsavoury history of this unlovely litany and may thus be of little interest to
the Supreme Court of Canada.
Hopefully, this FCA decision will effectively be not just
the beginning of the end or even the end of the beginning but will result in
the actual end of this lamentable litany of litigation losses.
HPK
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