Blacklock’s Pyrrhic Victory in the Federal Court of Appeal

 

The wounding of Stonewall Jackson at the Battle of Chancellorsville, May 2, 1863.

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:

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 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