e-document T-1862-15-ID 145

F D
I FEDERAL COURT É
L COUR FÉDÉRALE P
E O
D S
July 13, 2021 É
13 juillet 2021
Court File No.: T-1862-15
FEDERAL COURT Jonathan Macena

OTT 57
BETWEEN:

1395804 ONTARIO LTD, operating as BLACKLOCK’S REPORTER

Plaintiff
(Moving Party)
-and-

THE ATTORNEY GENERAL OF CANADA

Defendant
(Responding Party)

______________________________________________________________________________

MOTION RECORD OF THE RESPONDENT,

THE ATTORNEY GENERAL OF CANADA
(Plaintiff’s Appeal of the Order of Case Management
Judge Sylvie S. Molgat dated April 29, 2021)
______________________________________________________________________________

June 13, 2021

ATTORNEY GENERAL OF CANADA

Department of Justice Canada
National Litigation Section
50 O’Connor Street, Suite 500
Ottawa, ON K1A 0H8
Fax: 613-954-1920

Per: Alexander Gay

Andrew Gibbs

Tel: 613-670-8497
613-670-6312
Email: [email protected]
[email protected]

Counsel for the Defendant

TO: Federal Court – Registry
90 Sparks Street
Ottawa, ON K1A 0H9

Fax: 613-952-3653

Court

AND TO: Scott Miller and Deborah Meltzer

MBM INTELLECTUAL PROPERTY LAW LLP
275 Slater Street, 14th Floor
Ottawa, ON K1P 5H9

Tel: (613) 567-0762

Fax: (613) 563-7671
Email: [email protected]
[email protected]

Counsel for the Plaintiff

2
 TABLE OF CONTENTS

TAB DOCUMENT

1. Order of Case Management Judge Sylvie S. Molgat - April 29, 2021

2. Memorandum of Fact and Law of the Respondent - July 13, 2021

 Date: 20210429

Docket: T-1862-15

Ottawa, Ontario, April 29, 2021

PRESENT: Case Management Judge Sylvie M. Molgat

BETWEEN:

1395804 ONTARIO LTD., operating as

BLACKLOCK’S REPORTER

Plaintiff

and

THE ATTORNEY GENERAL OF CANADA

Defendant

ORDER

UPON procedural issues having arisen in this proceeding, the progress of which has been

hampered by the entrenched positions of the parties and their inability to reach agreement on

next steps;

AND UPON case management conferences having been held jointly with the parties in

Court File Nos. T-2090-14, T-269-15, T-897-15, T-1085-15, T-1726-15, T-2042-16, T-117-17,

T-132-17, T-133-17, T-134-17, T-943-17 and T-1228-17 [Related Actions] on July 3, 2020 and

August 21, 2020;

1
 Page: 2

AND UPON the Plaintiff, 1395804 Ontario Ltd., operating as Blacklock’s Reporter

[BR] and Defendant, Attorney General of Canada [AGC] having filed written submissions in

accordance with the Court’s Directions dated August 21, 2020 and September 16, 2020;

This proceeding is one of 13 similar actions involving a number of federal departments

and entities which are being case managed together, the procedural history of which is

summarized in the Orders of Prothonotary Tabib dated March 3, 2016 and of Prothonotary

Milczynski dated January 29, 2019 [2019 Order]. The Plaintiff alleges that the Defendants have

copied or distributed its articles [Articles] without consent and in breach of its copyright. By way

of Amended Statements of Claim filed pursuant to the 2019 Order, BR further alleges that the

Defendants accessed its articles by circumventing technological protection measures [TPMs]

contrary to s. 41.1(1)(a) the Copyright Act [Act].

At the centre of the current impasse is the motion for summary judgment filed by the

Defendant AGC in this proceeding involving Parks Canada.

Background

On April 4, 2019, a joint case management conference [CMC] was held to discuss and

establish a timetable for the completion of next steps. At the outset of the CMC, counsel for the

Plaintiff was assigned the task of preparing and circulating for approval draft minutes of the

CMC and any Directions made or Orders to be issued, which included Orders on consent

extending the stays in T-897-15, T-1726-15 and T-1228-17. The proposed motion by AGC for

summary judgment in this action was discussed, including the potential for such a motion to also

resolve the Related Actions, whether the Defendants in those actions might participate, and the

2
 Page: 3

Court heard the submissions of all parties present. Not being in a position at the CMC to agree

upon a timetable or the involvement of the other Defendants, the parties were directed to confer

and provide the Court with their proposals by April 12, 2019. The parties agreed that the Related

Actions would be held in abeyance until the disposition of the motion for summary judgment and

the Court directed such.

Following the CMC, a disagreement arose between BR and the AGC as to what had been

agreed to and directed by the Court regarding the motion for summary judgment, resulting in a

flurry of correspondence. Despite the Court extending the time for the parties to comply with the

oral directions issued at the CMC, and directing them to work cooperatively in doing so, the

parties proved unable to agree on a proposed timetable.

The Defendant’s Motion for Summary Judgment

On April 18, 2019, the AGC served its Amended Statement of Defence and its Notice of

Motion for summary judgment in this proceeding. The AGC seeks summary judgment

dismissing those parts of the Plaintiff’s Claim that relate to a breach of the TPMs, more

specifically: (a) an Order confirming that the Articles were put to “fair use” as provided for by s.

29 of the Act, such that there is no breach of copyright; (b) and Order confirming that where

Articles are put to “fair use”, it constitutes an exception to the TPM provisions in the Act, and

that no claim for damages may be asserted; (c) an Order confirming that Parks Canada purchased

an institutional subscription; and (d) where an institutional subscription has been purchased any

password that has been shared by Crown servants in respect of that subscription, a claim for a

breach of a TPM may not be asserted.

3
 Page: 4

An affidavit in support of the motion was served on the Plaintiff by the AGC on June 21,

2019. On June 30, 2019, the Court issued a Direction requiring the parties to provide, by no later

than July 22, 2019, a jointly proposed timetable leading up to the hearing of the Defendant’s

motion for summary judgment, their joint availability for a CMC, and an agenda of issues to be

discussed at the CMC.

The AGC again sought to engage Plaintiff’s counsel in setting up a timetable, but the

Plaintiff refused. By letter dated July 17, 2019, counsel for the Plaintiff (MBM) advised that

“Blacklock’s instructions are to proceed to the case management conference without a timetable

for the summary judgment motion in Parks Canada (T-1862-15). As such, MBM is not able to

provide a timetable leading to the hearing of the Defendant’s motion. MBM has advised the AG

accordingly.”

Although the Plaintiff does not deny that it agreed to the proposed motion, BR has

continued to take issue with the scope of the summary judgment requested by the AGC, which it

contends it never agreed to. The Plaintiff has refused to either discuss or propose a timetable for

the hearing of the motion despite the Court’s Directions.

No further steps were taken until April 2020 when the Plaintiff, confirming that matters

relating to BR remain in abeyance, requested a CMC advising that “Blacklock’s is inclined to

forego the summary judgment motion in Parks Canada (T-1862-15) and have Health Canada (T-

117-17) proceed.” Once again, the parties were directed to work cooperatively in providing a

jointly proposed timetable ahead of the CMC. Whereas the AGC submitted a detailed timetable

for the motion for summary judgment, referencing the supporting affidavits already provided,

4
 Page: 5

counsel for the Plaintiff confirmed that BR’s position was as set out in previous letters and that

his instructions had not changed.

A joint CMC was held on Friday, July 3, 2020 with the Plaintiff’s representative in

attendance. The Court advised the parties that, given their inability to work cooperatively in

complying with Directions, an Order would issue establishing a timetable for the motion for

summary judgment in accordance with the proposed schedule submitted by the AGC, and that a

timetable for next steps in the action involving Health Canada (T-117-17) would be established

following a decision on the summary judgment motion. This prompted counsel for the Plaintiff

to announce that if such was to be the outcome of the CMC, he had been instructed by his client

present to discontinue the Parks Canada action.

The Counterclaim

Following the Plaintiff’s indication that it would discontinue the Parks Canada action, the

AGC received instructions over the course of the weekend after the July 3rd CMC to file a

counterclaim, or if necessary, a fresh Claim to ensure the motion for summary judgment could

proceed. The counterclaim seeks declaratory relief in respect of the copyright infringement and

TPM claims which are the same issues set out in the AGC’s notice of motion for summary

judgment. Although an amended notice of motion would be necessary, the issues and evidence

remain the same. In the event that leave should be required, the AGC advised that it would seek

an order nunc pro tunc, retroactive to the date of service or filing.

The AGC’s Amended Defence and Counterclaim [Counterclaim] accompanied by a

cover letter, was served and filed electronically early on Sunday, July 5, 2020. It was entered

5
 Page: 6

first upon the opening of the Ottawa Registry on the morning of July 6, 2020, followed by the

Plaintiff’s Notice of Discontinuance [Discontinuance] which was served and filed on July 6,

2020.

In view of its Counterclaim, the AGC submits that the motion for summary judgment

remains alive and, accordingly, should proceed. The Plaintiff contends that the action being

discontinued, there is no longer any proceeding in which to file a counterclaim and that, in any

event, leave is required as pleadings are closed.

The parties were directed to provide written submissions on the issues of the filing of the

Counterclaim and Discontinuance, as well as any requirement for leave. The Court has

considered the detailed submissions of both parties as well as the Plaintiff’s submissions in reply.

The issue to be determined is whether the Counterclaim has been properly filed such that

it may proceed independently and, if so, whether the motion for summary judgment ought to be

allowed to proceed.

The Plaintiff’s Position

The Plaintiff maintains its right to discontinue pursuant to Rule 165 of the Federal Courts

Rules irrespective of any consequences for the Defendant and challenges the AGC’s position on

technical and procedural grounds. BR submits that Registry staff should have sought directions

pursuant to Rule 72 and argues that the Counterclaim should now be removed from the Court file

pursuant to Rule 74 as it was “not filed in accordance with the Rules.”

6
 Page: 7

BR further submits that by operation of Rules 143(1) and 71.1(3), the effective date of

service of the Counterclaim is Monday July 6, 2020 and accordingly that it must be deemed to

have been filed “simultaneously with” the Discontinuance; there being no counterclaim in the

Court file at the time the action was discontinued, the Plaintiff contends that the Counterclaim

cannot survive as contemplated by Rule 190.

In any event the Plaintiff submits that the AGC was required to obtain leave pursuant to

Rule 172 and Rule 207(1) as pleadings are closed. No motion for leave having been filed before

the Parks Canada action was discontinued, BR contends that making a nunc pro tunc Order

would undermine the Rules and that the Court cannot consider granting leave retroactive to filing

as it is functus officio.

Although the Plaintiff concedes that it consented to the AGC proceeding with a motion

for summary judgment, the Plaintiff continues to object to the scope of the motion and cites the

application of Rule 297 to this simplified action. Finally, the Plaintiff attacks the merits of the

counterclaim and submits that it is not a distinct action because it seeks a declaration for the

same subject of the summary judgment motion.

The Defendant’s Position

The Defendant, relying on Rule 385(1)(a) of the Rules, urges the Court to accept the

filing of the Counterclaim and to schedule the pending motion for summary judgment, reiterating

that the parties all agreed that the Related Actions would be held in abeyance pending the AGC’s

motion. The AGC again underscores that, if successful, the motion for summary judgment will

be dispositive of most, if not all the Related Actions.

7
 Page: 8

As to the timing, the AGC argues that Rules 142 permits service to be effected on a

Sunday, and that the Plaintiff acknowledges having received the Counterclaim prior to serving

their Discontinuance on Monday, July 6, 2020. The AGC submits that Rules 200 and 201 do not

apply to a counterclaim, but to the extent that the Court is of the view that leave is required, that

it should be granted nunc pro tunc, taking effect on the day it was served or on the following

Monday in accordance with Rule 143(1).

In any event, the AGC submits that the test for leave is prejudice and that there is no

prejudice to the Plaintiff given that the legal issues raised in the Counterclaim are the same issues

that the AGC already seeks to have adjudicated by way of summary judgment: a declaration that

there was no breach of copyright or of a TPM, which are the very issues raised by the Plaintiff in

its claim against Parks Canada.

The AGC contends that it has articulated a cause of action that can be advanced as a

claim or a counterclaim and that the issues raised in the Counterclaim are not time-barred.

Although the AGC had the option of commencing an action independent of these proceedings, it

would not advance the matters that are before the Court. The Defendant submits that it is in the

interest of justice that the Counterclaim be accepted and that the motion for summary judgment

be allowed to be heard.

The AGC served and filed its Amended Motion Record, including the Amended Notice

of Motion, on August 27, 2020.

8
 Page: 9

Analysis

In considering the submissions of the parties in the overall context of this specially

managed action, I am guided by the principles set out in Rule 3 of the Federal Court Rules and

the general rule that the interests of justice require that any action or proceeding proceed as

expeditiously as possible.

Subject to Rule 190, there is no doubt that once a discontinuance has been filed, the

proceeding ends and the Court file is closed (see Olumide v. Canada, (2016) FCA 287 at paras.

27-30). Having reviewed and considered all the circumstances however, I reject the Plaintiff’s

assertion that the Court must treat the counterclaim and discontinuance as having been

“submitted and filed simultaneously” at the opening of the Court on Monday, July 6, 2020. The

Plaintiff has also not provided any authority to support its assertion that in the event that a

counterclaim and discontinuance are filed “simultaneously”, the discontinuance trumps the

counterclaim to extinguish the Court file.

The Plaintiff does not dispute that it received the Counterclaim on July 5, 2020, prior to

serving and filing its Discontinuance on the morning of July 6, 2020. Although service and filing

cannot take effect on a Sunday, the actions of the AGC clearly preceded those of the Plaintiff,

such that the Counterclaim and the Discontinuance were not in fact simultaneous. The

Counterclaim was served and was submitted for filing, with proof of service, prior to service of

the Discontinuance by the Plaintiff, and they were properly entered and filed by the Registry in

the same sequence. I therefore find that the Counterclaim was served and filed prior to the action

being discontinued.

9
 Page: 10

While the Plaintiff contends that the Counterclaim ought to have been referred to the

Court for direction, that is a matter for the Administrator. The language of Rule 72(1)(b) is not

mandatory and the Counterclaim was accepted for filing. As for the Plaintiff’s submission that

the Counterclaim should now be removed from the Court file on the ground that it is not filed in

accordance with the Rules, I disagree. Whereas Rule 72 concerns the failure to satisfy conditions

precedent for filing a document, Rule 74 addresses whether a document should be removed due

to “a fatal substantive defect”, which I am satisfied is not the present case (see Canada

(Citizenship and Immigration) v. Tennant, 2018 FCA 132 at para. 7).

Pleadings being closed, I agree that the Defendant is required to seek leave. I am

however of the view that in the circumstances of this case, it is appropriate for the Court to

consider exercising its discretion pursuant to Rule 385(1)(a) and Rule 55, to grant leave nunc pro

tunc or to dispense with compliance with Rule 172.

Case management judges are empowered to give any directions or make any orders that

are necessary for the just, most expeditious and least expensive determination of a proceeding on

its merits. Rule 385(1) also “sits alongside” Rule 55 pursuant to which the Court may vary a

Rule or may dispense with compliance with a Rule, which powers are to be exercised with

procedural fairness in mind (see Mazhero v. Fox, 2014 FCA 219 at paras. 2-6; Canada (National

Revenue) v. Mcnally, 2015 FCA 195 at paras. 8-9).

It is implicit in considering the special circumstances referred to in Rule 55 that, on one

hand, justice be done and, on the other hand, there be no prejudice (See Yearsley v. Canada,

2002 FCT 732 at para. 7). In considering whether to exercise the Court’s discretion to dispense

with compliance with Rule 172, the Court must consider whether it will promote the objectives

10
 Page: 11

of Rule 3. Whether or not to dispense with compliance with Rule 172 is a discretionary decision

and must be considered based on the facts of the particular matter, bearing in mind the

overarching principle of proportionality and efficient use of the parties’ resources and the

judicious use of limited Court resources.

Relevant factors to be considered in determining whether to exercise the Court’s inherent

jurisdiction to issue an order nunc pro tunc include whether the opposing party will be

prejudiced by the order; whether the order would have been granted had it been sought at the

appropriate time, such that the timing is merely an irregularity; whether the irregularity is

intentional; whether the order will achieve the relief sought or cure the irregularity; whether the

delay has been caused by an act of the court and whether the order would facilitate access to

justice (see Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60 at paras. 89-90).

The Counterclaim does not raise any new issues— indeed they are the same issues that

were raised by BR in its now discontinued Claim. As such, the Plaintiff cannot be said to be

taken by surprise, nor does the Plaintiff allege so. Failing to obtain leave to file the Counterclaim

is also not in my view an “unsurmountable obstacle” but more in the nature of a procedural

irregularity which could be cured by the issuance of an order nunc pro tunc. Of note as well is

that the AGC could proceed by way of a fresh Claim.

Considering the history of this simplified action, requiring the AGC to bring a formal

motion for leave would not, in my view, be conducive to resolving the dispute in a manner

consistent with the intent and purpose of the simplified rules which is to allow for claims to be

dealt with quickly through a less cumbersome and expensive process (see Source Enterprise Ltd.

11
 Page: 12

v. Canada (Public Safety and Emergency Preparedness), 2012 FC 966 [Source Enterprise] at

para. 37).

With that in mind, it was proposed that these issues be addressed by way of written

submissions. The parties have been provided with the opportunity to put forward their respective

positions in a procedurally fair manner and those submissions have been of great assistance to

the Court.

Apart from the prospect of now facing a counterclaim and the motion for summary

judgment filed, the Plaintiff has not demonstrated that it will suffer prejudice or injustice if leave

to file the Counterclaim is granted or dispensed with. In all the circumstances, I conclude that it

is in the interest of justice and in the spirit of Rule 3 and the simplified rules to do so. The

requirement to obtain leave to file the Counterclaim will therefore be dispensed with.

Having concluded that the Counterclaim was served and filed before the action was

discontinued, I find that it may be proceeded with in accordance with Rule 190.

Over two years have passed since the parties agreed to a motion for summary judgment

by the AGC and to hold the Related Actions in abeyance pending the outcome of that motion.

Despite Rule 297, the Court retains the discretion to hear a summary judgment motion (see

Source Enterprise; Lepage v. Canada, 2017 FC 1136, at paras. 48-52).

Given the potential for the motion to dispose of most if not all of the Related Actions, I

am satisfied that allowing the motion to proceed is the option that best achieves the interest of

justice and the just, most expeditious and least expensive determination of the issues.

12
 Page: 13

THIS COURT ORDERS that:

1. The requirement to obtain leave to file a counterclaim is dispensed with and the

Amended Defence and Counterclaim is accepted as filed.

2. Blacklock’s shall serve and file its Defence to the Counterclaim by no later than

May 31, 2021.

3. Any Reply by the Attorney General shall be served and filed by no later than June

10, 2021.

4. The parties shall, by no later than June 14, 2021, confirm their joint availability in

September and October 2021 for a 2-day hearing of the Attorney General’s motion

for summary judgment. A date for the hearing of the motion shall be set for the

earliest possible available date after September 15, 2021.

5. The motion for summary judgment shall proceed according to the following

schedule:

(i) Blacklock’s shall serve and file its affidavits by no later than June 30, 2021;

(ii) Cross-examinations shall be completed by no later than July 20, 2021;

(iii) The Attorney General shall serve and file its complete motion record,

including a memorandum of fact and law by no later than August 10, 2021;

(iv) Blacklock’s shall serve and file its responding motion record, including a

memorandum of fact and law by no later than August 31, 2021;

13
 Page: 14

(v) The Attorney General may serve and file a memorandum of fact and law in

reply, not exceeding 10 pages, by no later than September 15, 2021. Such

reply shall not exceed 10 pages and be limited to matters raised by

Blacklock’s.

6. The parties shall, within 10 days after the final disposition of the motion, provide

the Court with an update and their joint availability for a case management

conference.

7. There will be no order as to costs.

8. A copy of this Order shall be placed in Court File Nos. T-2090-14, T-269-15, T-

897-15, T-1085-15, T-1726-15, T-2042-16, T-117-17, T-132-17, T-133-17, T-134-

17, T-943-17 and T-1228-17.

“Sylvie M. Molgat”
Case Management Judge

14
 Court File No.: T-1862-15
FEDERAL COURT

BETWEEN:

1395804 ONTARIO LTD, operating as BLACKLOCK’S REPORTER

Plaintiff
-and-

THE ATTORNEY GENERAL OF CANADA

Defendant

_______________________________________________________________________________

FACTUM OF THE ATTORNEY GENERAL OF CANADA

(Plaintiff’s appeal of the Order of Case Management
Judge Sylvie S. Molgat dated April 29, 2021)
_______________________________________________________________________________

OVERVIEW

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 Court. An agreement was reached by all

15
 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.

16
6. The AGC requests that the appeal be dismissed, with costs.

PART I - THE FACTS

7. The Plaintiff, Blacklock’s Reporter, filed actions before the Federal Court against a number

of federal public institutions, including Parks Canada, Health Canada, Public Prosecution

Services, and the Canadian Transportation Agency, to name a few, alleging a breach of

copyright and of the TPM surrounding access to its website.1 At time of purchase, an

institution receives a password and, according to the Plaintiff, the sharing of the password

between employees constitutes a breach of a TPM. All in all, the Plaintiff commenced

fourteen actions before the Federal Court.2

8. The actions, for which there are multiple defendants are case managed by Case Management

Judge Molgat.3 The AGC represents some, but not all defendants. The CTA, Archives

Canada, the Library of Parliament, to name a few, are presented by private sector counsel.

All of the actions have been managed together as they share a common facts and legal issues.

9. On April 4, 2019, a joint case management conference (CMC) with a number of the legal

representatives of the various counsel was called to discuss and establish a timetable for the

completion of next steps.4 While there had been informal discussions between the parties

prior to the CMC, the objective was to find a streamlined approach to all cases.

10. At the outset of the CMC, counsel for the Plaintiff was assigned the task of preparing and

circulating for approval draft minutes of the CMC and any Directions made or Orders to be

1
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 2, AGC Motion Record, at Tab 1.
2
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 2, AGC Motion Record, at Tab 1.
3
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 2, AGC Motion Record, at Tab 1.
4
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 2, AGC Motion Record, at Tab 1

17
 issued, which included Orders on consent extending the stays in T-897-15, T-1726-15 and T-

1228-17.5 Counsel for the Plaintiff was to provide a copy of the draft minutes for approval

by the AGC, prior to filing them with the Court.6

11. At the CMC, the AGC proposed a motion for summary judgment in the Parks Canada action.7

The proposal was with a view to finding an action that would dispose of all fourteen actions.

Discussions were had between all counsel and the Court on such things on whether the

Defendants in Related Actions might participate in the proposed motion and what the eventual

motion could look like.8 The proposal was also impromptu.

12. An agreement was reached by all parties that allowed the AGC to bring a motion for summary

judgment in the Parks Canada action.9 The Plaintiff consented to the motion and agreed that

it would streamline the remainder of the cases. At the CMC, the AGC made it clear to all

parties that a number of the legal issues asserted in all the actions had been resolved by the

Justice Barnes in a Federal Court decision and that the only live issue was in relation to the

TPM aspect of the claims. That would be the focus of the proposed motion in the Parks

Canada case.

13. At no time did the Plaintiff request a copy of a Notice of Motion at the CMC. The proposal

was made within the context of an informal oral discussion with all counsel.10 Regardless,

consent to the motion was provided unconditionally and without reservation, a matter made

clear in the order of Case Management Judge Molgat. Only the Plaintiff now wants his

consent revisited.

5
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 2. AGC Motion Record, at Tab 1
6
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 2, AGC Motion Record, at Tab 1
7
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 2, AGC Motion Record, at Tab 1
8
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 2, AGC Motion Record, at Tab 1.
9
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 3, AGC Motion Record, at Tab 1.
10
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 2, AGC Motion Record, at Tab 1

18
14. Not being in a position at the CMC to agree upon a timetable or the involvement of the other

Defendants in the Related Actions, the parties were directed by the Court to confer and

provide to the Court with a proposed timetable by April 12, 2019.11 The parties agreed that

the Related Actions would be held in abeyance until the disposition of the motion and the

Court directed such, subject to any interventions.12

15. As part of the discussion on the possible timetable, counsel for the AGC approached the

Plaintiff and requested agreement on the facts that were not at issue in the Parks Canada

action, all with a view of avoiding evidence and expediting the motion. 13 The fact that articles

were put to fair use and that they benefited from the fair dealing defence was not controversial.

In response, the Plaintiff advised that evidence was not permissible on the motion. What

became clear to the AGC is that the Plaintiff had confused a motion for summary judgment

with a motion to determine a question of law. .

16. With the prospect of the AGC filing evidence, counsel for the Plaintiff moved to renege from

the motion, suggesting that it went far beyond what he had understood to be the scope of the

motion.14 A disagreement arose between the Plaintiff and the AGC as to what had been agreed

to and directed by the Court regarding the motion for summary judgment, resulting in a flurry

of never-ending correspondence and emails by the Plaintiff’s counsel to both counsel for the

AGC, counsel in the Relations Actions and the Court.15

17. As part of the attempt to derail the AGC’s motion, counsel for the Plaintiff filed the personal

notes of a junior counsel on what she believed had been communicated by the parties at the

11
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 3, AGC Motion Record, at Tab 1
12
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 3, AGC Motion Record, at Tab 1
13
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 3, AGC Motion Record, at Tab 1
14
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 3, AGC Motion Record, at Tab 1
15
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 3, AGC Motion Record, at Tab 1

19
 CMC, without obtaining the approval of the AGC, and contrary to what had been directed by

the Case Management Judge on April 4, 2019. Consequently, a contested version of the so-

called “transcription” was put before the Court, the same transcription that the Plaintiff again

puts before this Court in the appeal materials.16 However, having participated in the CMC,

the Case Management Judge was not swayed by these notes in her Order.

18. In a further attempt to derail the motion, counsel for the Plaintiff filed a partial record of the

email exchanges between counsel with the Court, claiming privilege over communications to

the AGC. While nothing turns on these emails exchanges, the Plaintiff refused to make the

entire record available to the Court. That same partial record of emails has been put before

this Court on this appeal.17

19. Despite the Court extending the time for the parties to comply with the oral Directions

provided at the CMC, and further Directing counsel for the Plaintiff to provide dates for the

motion, there was a refusal to comply. The AGC repeatedly demanded dates, all of which

were met without any cooperation.18

16
See: (a) Plaintiff’s letter of April 5, 2019, which appends he Minutes, without approval from the AGC. Case
Management Molgat had directed counsel for the Plaintiff to get the approval of the AGC prior to submitting
it to the Court, see p. 80 of the Plaintiff’s Motion Record; (b) Counsel for the AGC emailed counsel for the
Plaintiff twice (April 11 and 12, 2019) to request that they amend the Minutes that had been filed with the
Court (so-called transcripts), which he refused to do without explanation or even denying that they were
grossly inaccurate, see pp. 93-94 of the Plaintiff’s Motion Record; (c) Counsel for the AGC wrote to the Court
on April 18, 2019 to advised that the Minutes (so-called transcripts) were inaccurate and that the Plaintiff had
failed to file the entire record of correspondence with the Court, see Plaintiff’s Motion Record, pp. 105-107.
The entire record of exchanges was never provided to the Court
17
Counsel for the AGC wrote to the Court on April 18, 2019 to advised that the Minutes (so-called
transcripts) were inaccurate and that the Plaintiff had failed to file the entire record of correspondence
between counsel with the Court, see Plaintiff’s Motion Record, pp. 105-107
18
The Plaintiff’s Record is replete with examples of where counsel refused to adhere to Court Directions on
the grounds that he had been instructed by his client to ignore them. See letter from MBM to the Court,
dated July 17, 2019, Plaintiff’s Motion Record, at p.p. 120-121; See also Letter from MBM to Court, dated
June 12, 2020, Plaintiff’s Motion Record, at pp. 134-136.

20
The Attorney General’s Motion for Summary Judgment

20. On April 18, 2019, the AGC served its Amended Statement of Defence and a Notice of

Motion for summary judgment.19 This was an effort to move the motion forward on the

motion.

21. In the Notice of Motion, the AGC sought summary judgment dismissing those parts of the

Plaintiff’s Claim that relate to a breach of the TPMs, more specifically: (a) an Order

confirming that the Articles were put to “fair use” as provided for by s. 29 of the Copyright

Act, such that there is no breach of copyright; (b) and Order confirming that where Articles

are put to “fair use”, it constitutes an exception to the TPM provisions in the Act, and that no

claim for damages may be asserted; (c) an Order confirming that Parks Canada purchased an

institutional subscription; and (d) where an institutional subscription has been purchased any

password that has been shared by Crown servants in respect of that subscription, a claim for

a breach of a TPM may not be asserted. This was all within the bounds of what had been

described by the AGC on the CMC.20

22. An affidavit in support of the motion was served on the Plaintiff by the AGC on June 21,
21
2019. Again, all in an effort to move the motion forward.

23. On June 30, 2019, after being advised by the AGC that the Plaintiff was refusing to cooperate

and adhere to the Direction of the Court, the Court issued a further Direction requiring the

Plaintiff to provide, by no later than July 22, 2019, a jointly proposed timetable leading up to

the hearing of the Defendant’s motion for summary judgment, their joint availability for a

19
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 3, AGC Motion Record, at Tab 1.

20
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 3, AGC Motion Record, at Tab 1.
21
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 3, AGC Motion Record, at Tab 1.

21
 CMC, and an agenda of issues to be discussed at the CMC. 22 Again, the Plaintiff refused to

adhere to this further Direction, insisting that it did not want the motion to proceed and that

he had been instructed by his client to ignore the Direction.

24. By letter dated July 17, 2019, counsel for the Plaintiff advised the Court that it would not

comply with the Court’s Order: “Blacklock’s instructions are to proceed to a CMC without a

timetable for the summary judgment motion in Parks Canada (T-1862-15). As such, MBM is

not able to provide a timetable leading to the hearing of the Defendant’s motion. MBM has

advised the AG accordingly.” 23

25. Although the Plaintiff does not deny that it agreed to the proposed motion within the context

of the simplified proceeding rules, it has continued to take issue with the scope of the summary

judgment. The Plaintiff refused to either discuss or propose a timetable for the hearing of the

motion despite the Court’s repeated court Directions.24

26. From April 2019 to July 2020, all of the Related Actions were kept in abeyance. All of the

Defendants in the Relation Action were denied the opportunity to prosecute the claims.

27. No further steps were taken until April 2020 when the Plaintiff, confirming that matters

relating to the Plaintiff remain in abeyance, requested a CMC advising that “Blacklock’s is

inclined to forego the summary judgment motion in Parks Canada (T-1862-15) and have

Health Canada (T-117-17) proceed.” Once again, the parties were directed to work

cooperatively in providing a jointly proposed timetable ahead of the CMC.25 Whereas the

22
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 4, AGC Motion Record, at Tab 1
23
See Letter from MBM to Court, dated July 17, 2019, Plaintiff’s Motion Record, at pp. 120-121.
24
Plaintiff refused to multiple Directions, including the oral Direction of April 4, 2019, Direction of April
11, 2019, see Plaintiff’s Motion Record, at p. 86; Direction of July 2, 2019 , see Plaintiff’s Motion Record,
at p. 118; Direction of June 8, 2020, see Plaintiff’s Motion Record, at p. 128.
25
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 4-5, AGC Motion Record, at Tab 1

22
 AGC submitted a detailed timetable for the motion for summary judgment, referencing the

supporting affidavits already provided to counsel and filed with the Court, counsel for the

Plaintiff confirmed that their position was as set out in previous letters and that instructions

had not changed – to disregard all the Directions from the Court.

28. A joint CMC was held on Friday, July 3, 2020 with the Plaintiff’s representative in attendance,

Mr. Tom Korski. All counsel in the Related Actions also attended. The Court advised the

parties that, given plaintiff’s inability to work cooperatively in complying with Directions, an

Order would issue establishing a timetable for the motion for summary judgment in

accordance with the proposed schedule submitted by the AGC, and that a timetable for next

steps in the action involving Health Canada (T-117-17) would be established following a

decision on the summary judgment motion. 26 The Case Management Judge provided a stern

warning to counsel or the Plaintiff that he would have to adhere to the Direction.

29. The Case Management Judge’s decision at the CMC of July 3, 2020, immediately prompted

counsel for the Plaintiff to make a surprise announcement, namely that that if such was to be

the outcome of the CMC, he had been instructed by his client present to discontinue the Parks

Canada action.27

The Counterclaim
30. Following the Plaintiff’s surprise announcement that it would discontinue the Parks Canada

action, the AGC received instructions from Parks Canada over the course of the weekend after

the July 3, 2020 CMC to file a Counterclaim, or if necessary, a fresh Claim. The objective

26
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 5, AGC Motion Record, at Tab 1
27
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 5, AGC Motion Record, at Tab 1.

23
 was to have the motion which had been contemplated for over (x) months and which would

efficiently determine the disputed adjudicated. . 28

31. The Counterclaim seeks declaratory relief in respect of the copyright infringement and TPM

claims which are the same issues set out in the AGC’s notice of motion for summary

judgment. Although an amended Notice of Motion was necessary, the issues and evidence

remain the same. In the event that leave should be required, the AGC advised that it would

seek an order nunc pro tunc, retroactive to the date of service or filing.29

32. The AGC’s Counterclaim, which was accompanied by a cover letter, was served and filed

electronically early on Sunday, July 5, 2020. It was entered first upon the opening of the

Ottawa Registry on the morning of July 6, 2020, followed by the Plaintiff’s Notice of
30
Discontinuance which was served and filed on July 6, 2020. The Plaintiff acknowledged

that it received the Counterclaim before it had filed a Notice of Discontinuance.

33. Faced with a Counterclaim, the parties were directed by the Court to provide written

submissions on the issues of the filing of the Counterclaim and Discontinuance, as well as

any requirement for leave. The parties complied. The Court considered the detailed

submissions of both parties as well as the Plaintiff’s submissions in reply.31

34. The issue for the Court was whether the Counterclaim has been properly filed such that it may

proceed independently and, if so, whether the motion for summary judgment ought to be

allowed to proceed.32

28
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 5, AGC Motion Record, at Tab 1
29
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 6, AGC Motion Record, at Tab 1.
30
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 5, AGC Motion Record, at Tab 1.
31
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 6-8, AGC Motion Record, at Tab 1.
32
Order of Case Management Judge Molgat, dated April 29, 2021, at p. 9, AGC Motion Record, at Tab 1.

24
35. On April 29, 2021, The Court issued an order accepting the Counterclaim and allowing the

motion for summary judgment to be heard. 33

Interveners
36. In or about June 2021, the Samuelson-Glushko Canadian Internet Policy and Public Interest

Clinic (CIPPIC), a public interest and advocacy clinic based at the Centre for Law,

Technology and Society at the University of Ottawa’s Faculty of Law served notice that it

would be seeking to intervene in the motion for summary judgment. CIPPIC has been granted

intervener status on a number of cases before the Federal Court and the Federal Court of

Appeal. If leave to intervene is granted, CIPPIC will make submissions on a number of issues,

including the interplay between the “fair dealing” provisions of the Act and the TPM

provisions. The AGC has consented to the intervention, all of which highlight the importance

of the issues that are raised in the motion for summary judgment and their broad implications.

PART II-ISSUES

37. The issues are as follows:

a) What is the standard of review on an appeal of a discretionary order of a Case Management

Judge;

b) Is there a live controversy that would allow this Court to issue a declaration;

c) Was the Case Management Judge to schedule a motion for summary judgment in a

simplified proceeding; and

d) Was the Case Management Judge entitled to grant leave to the AGC to file the

Counterclaim?

33
Order of Case Management Judge Molgat, dated April 29, 2021, AGC Motion Record, at Tab 1.

25
 PART III –DISCUSSION

A. Standard of Review

38. This is an appeal of the discretionary decision of a Case Management Judge allowing for the

filing of a Counterclaim and scheduling a motion for summary judgment. Since the Federal

Court of Appeal’s decision in Hospira Healthcare Corp. v. Kennedy Institute of

Rheumatology, it is well-established that this Court may only interfere with such decisions if

the Case Management Judge made an error of law or a palpable and overriding error regarding

a question of fact, or mixed fact and law.34

39. The “palpable and overriding error” standard is highly deferential. Such an error has been

described as “obvious, plainly seen and apparent, the effect of which is to vitiate the integrity

of the reasons”.35 To meet this standard, “it is not enough to pull at leaves and branches and

leave the tree standing. The entire tree must fall.”36

40. Much of what the Appellant puts forward in his appeal is an incomplete and inaccurate record

of the events giving rise to a consent that the Plaintiff gave to having a motion for summary

judgment heard in the Parks Canada action, all of which were rejected by the Case

Management Judge. The remainder of the complaints in the appeal are in relation to the

exercise of discretion by a Case Management Judge under Case Management Rules. There is

no error of law or a palpable and overriding error regarding a question of fact, or mixed fact

and law in the Order.

34
Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at paras. 64-65, 79
[Hospira]; see also Bossé v. Canada, 2017 FC 48 at para. 7, AGC Book of Authorities, at Tab 4.
35
Brauer v. Canada, 2020 FC 828 at para. 17, citing Madison Pacific Properties Inc v Canada, 2019 FCA
19, AGC Book of Authorities, at Tab 5.
36
Brauer, ibid., citing Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157 at para 61, AGC
Book of Authorities, at Tab 5.

26
 B. There is still a live controversy

41. The Appellant has fought hard to derail the motion for summary judgment to which it had

agreed. The issues put forward in the motion will put an end to the TPM claims advanced by

the Plaintiff in all fourteen actions. The mere presence of an intervener, CIPPIC, speaks

volumes to the importance of the legal issues raised in the motion and the impact on the

remaining the thirteen actions that are before the Federal Court.

42. Mootness was defined in the following manner by Mr. Justice Sopinka in Borowski at page

353:

The doctrine of mootness is an aspect of a general policy or practice that a court may
decline to decide a case which raises merely a hypothetical or abstract question. The
general principle applies when the decision of the court will not have the effect of
resolving some controversy which affects or may affect the rights of the parties. If the
decision of the court will have no practical effect on such rights, the court will decline to
decide the case. This essential ingredient must be present not only when the action or
proceeding is commenced but at the time when the court is called upon to reach a
decision. Accordingly if, subsequent to the initiation of the action or proceeding, events
occur which affect the relationship of the parties so that no present live controversy exists
which affects the rights of the parties, the case is said to be moot. The general policy or
practice is enforced in moot cases unless the court exercises its discretion to depart from
its policy or practice.37

43. The test of mootness, according to Borowski, is whether there is a live controversy which

affects or may affect the rights of the parties. There are fourteen actions before the Federal

Court where the Plaintiff has asserted that the sharing of a password by a public institutions

to gain access to articles, even within the context of articles that benefit from a fair dealing

defence.

44. If there is no live controversy as between the AGC and the Plaintiff, then the question is why

are there thirteen other Related Actions with the very same TPM claims that continue. The

37
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at pg 353, AGC Book of Authorities, at Tab
3.

27
 determination of the Parks Canada action is dispositive of all of the remaining actions and

thus, the motion will have great utility to the parties and the Court, not to mention the parties

in the Related Actions.

45. As explained by the AGC in the CMC of April 2019, the Parks Canada action offers a unique

opportunity in that there were but a handful of articles that were shared, none of which left

that institution. The Parks Canada action offers a clean case where the determination of the

legal issues will transcend that case and offer answers to the remainder of the actions. This

is anything but mootness.

46. There is an abundance of case law before this Court where even when an applicant receives

the full benefit of what he or she has sought in a judicial review application, the Court has

allowed the proceeding to continue where the declaratory relief sought concerns the public or

has some utility.38

C. Absent Evidence of Misuse of Judicial Discretion, Court Should not Interfere

47. The appeal is in relation to a discretionary order made under the Case Management Rules

which affords a Case Management Judge wide discretion in regulating proceedings. This

Court should not interfere except in the clearest of case of misuse of judicial discretion, for

which there is none in this case.

48. Case Management Judges have very broad powers flowing from Rule 385(1). In exercising

these broad powers, Case Management Judges may make orders that allow for the most

38
Trang v. Alberta (Edmonton Remand Centre), 2004 ABQB 497 (CanLII), AGC Book of Authorities, at Tab
17; Rahman v. Canada (Minister of Citizenship and Immigration) (2002), 2002 FCT 137 (CanLII), 216 F.T.R.
263, AGC Book of Authorities, at Tab 15.; Fogal v. Canada (2000), 1999 CanLII 7932 (FC), 167 F.T.R. 266
(F.C.C.T.D.), aff’d (1999) 167 F.T.R. 266 (F.C.A.), leave to appeal denied [2001] S.C.C.A. No. 84, AGC Book
of Authorities, at Tab 10.

28
 expeditious and least expensive determination of the issues.39 A decision to allow a

Counterclaim and a motion for summary judgment is well within these powers. The Plaintiff

may disagree on the exercise of discretion, but that remains no more than an opinion and is

not a basis to appeal.

49. Regardless, this Court on appeal must give the decision of the Case Management Judge a

great deal of deference. There is an entire factual backdrop against which the decision was

made by the Case Management Judge, all of which was witnessed first-hand by the Case

Management Judge. In the absence of an error of law or legal principle, an appellate court

cannot interfere with a discretionary order unless there is an obvious, serious error that

undercuts its integrity and viability.40

50. While the Plaintiff may not like the decision of the Case Management Judge and while it may

have ruled differently had it been given the opportunity, this is not a basis to appeal. There

is no error of law or legal principle that was misapplied. The decision of Case Management

Judge was well reasoned and appropriate in the context of the facts that were before her.

D. Plaintiff Consented to a Motion for Summary Judgment

51. The Plaintiff consented to having a motion for summary judgment heard. The consent was

given in the presence of the Case Management Judge and the various other counsel

representing a number of Defendants in the Related Actions as well as the AGC. Everyone

in attendance has a clear understanding of what was agreed to and the Court ordered it so. To

suggest that consent was anything but unconditional or limited to a single narrow legal issue

is to rewrite history in an egregious way, a matter that was not accepted by the Case

Management Judge in her decision of April 21, 2021.

39
Barkley v.Canada 2018 CarswellNat 1637, 2018 FC 228, AGC Book of Authorities, at Tab 2.
40
Turmel v. Canada(2016), 481 NR 139, 2016 CarswellNAT 126, 2016 FCA 9, leave to appeal refused
(June 23, 2016), Doc. 36937, 2016 CarswellNat2407 (SCC), AGC Book of Authorities, at Tab 18.

29
52. At the heart of the issue for the Plaintiff is what counsel agreed to at the CMC of April 4,

2019. The letters and submission of counsel filed subsequent to April 4, 2019 are irrelevant

or worse, incomplete and inaccurate. The fact is that the AGC proposed a motion for

summary judgment on the TPM claims contained in the Parks Canada action which cut across

all actions. This proposal flowed from the fact that the remainder of the legal issues that are

non-TPM related and contained in all fourteen action have already been decided by Justice

Barnes in a previous case. 41 The proposal made sense to all parties in attendance.

53. The Plaintiff reneged from the agreement only after he received notice that the AGC would

lead evidence and after he had consulted with his clients on that harmful evidence.

Regardless, a Plaintiff does not get to decide whether evidence may be filed in support of a

motion for summary judgment, the nature of the evidence that will be filed or how the legal

issues will be framed by the moving party. These are matters that are within the purview of

the moving party.

54. While the Plaintiff contends that the AGC never provided a copy of a Notice of Motion in

advance of the CMC of April 4, 2019, this is irrelevant to the consent that was provided by

counsel, all in the absence of such a notice. To suggest that he required a Notice of Motion

after the fact or that it vitiates consent when it was never requested is disingenuous.

55. The Plaintiff has also gone to extraordinary efforts to derail the motion. At the CMC of April

4, 2019, the Case Management Judge requested that counsel for the Plaintiff prepare Minutes

of the CMC and circulate them for approval to the AGC, prior to filing them with the Court.

Rather than comply with the Direction, counsel used the opportunity to create an highly

41
1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2016 FC 1255 (CanLII),
[2017] 2 FCR 256, AGC Book of Authorities, at Tab 1.

30
 disputed transcription of the CMC and file it with the Court, contending that it was a true and

accurate representation of the discussion. The so-called transcription, which counsel again

puts before this Court as evidence, was not accepted by Case Management Judge or any of

the other counsel that were in attendance on April 4, 2019. The same holds true of the email

record. The Plaintiff produced a partial record of the exchanges and contends that it is a

record of the agreement that was reached.

56. The Case Management Judge made a factual finding. This is a factual determination on the

events that transpired between counsel for which there is no basis to set aside. The Plaintiff

consented to a motion.

E. Interest of Justice Favours the Attorney General

57. Case Management Judge Molgat assessed all of the facts and came to the conclusion that it

was in the interest of justice to allow the AGC’s Counterclaim and motion for summary

judgment to proceed in the Parks Canada action The motion is determinative of important

issues that cut across a number of actions. This is a discretionary decision that must not be

disturbed, absent some error of law for which there is none.

58. The facts are clear. For more than two years, the Plaintiff has resisted the AGC’s motion.

There is good reason that underlies the conduct of the Plaintiff, namely this is a motion that

will bring finality to a litany of cases.

59. The Plaintiff has a business model where it publishes articles that are inaccurate regarding

public institutions, taunting them to read and purchase a subscription to their news services.

Generally speaking, the information is so inflammatory that most public institutions, as part

of their public mandate, will follow up with the Plaintiff, trying to secure a copy of the article.

The eventual purchase of a subscription is subject to terms and conditions which are, for he

31
 most part, ambiguous and leave doubt as to whether an individual or an institutional

subscription has been purchased. The Plaintiff waits and then sends out an ATIP request with

a view to determining whether the articles have circulated in that institution. A civil action

is then commenced where it then contends that it was an individual subscription that was sold.
42

60. The Plaintiff has suffered a total loss before this Court on one action. Justice Barnes

determined that a public institution that is maligned and that faces an inflammatory article of

the nature published by Blacklock’s Reporter benefits from a fair dealing defence, as

contemplated under s. 29 of the Copyright Act.

61. The conclusions reached by Justice Barnes cut across all of the cases and should have put an

end to all litigation. However, upon the conclusion of this case, the Plaintiff changed legal

counsel and found a new angle, namely that all of the Defendants in all actions are in breach

of the TPM measures when they shared a password. The language in all of the pleadings was

amended and it all reads the same. The only differences between the various actions are on

the facts, namely the articles that were circulated and how the subscriptions were purchased.

62. As it relates to the alleged breach of the TPM measures, the Plaintiff contends that the site

was password protected and that the sharing of the password is a circumvention. The AGC

contends that there was no circumvention in that much like sharing the key to a hotel room

(or the sharing of a Netflix password among family members), between family members,

there was no circumvention on an institutional subscription.

42
1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2016 FC 1255 (CanLII),
[2017] 2 FCR 256, AGC Book of Authorities, at Tab 1.

32
63. The issues to be decided in the Parks Canada case, which have been recorded in a Notice of

Motion under the Counterclaim, cut across all cases. The motion raises a number of legal

issues that are determinative of the TPM component of the various claims, the only novel

aspects that this Court needs to adjudicate to dispose of all actions. The issues include: (a)

in the face of an institutional subscription, can a plaintiff assert a breach of a TPM measure;

(b) is a password an “effective” protective measure, an element required under the Copyright

Act; (c) can there be a breach of a TPM in the face of fair dealing; (c) should damages be

recoverable for a breach of a TPM when there was fair dealing. .

64. While the Plaintiff contends that the Parks Canada motion is not determinative of all other

Related Actions, the AGC disagrees, as did Case Management Judge Molgat. She reviewed

the pleadings and all of the material before her and reached the very same conclusion reached

by the Attorney General. The that CIPPIC has moved to intervene provides clear

confirmation that there are important overarching issues that go well beyond the Parks Canada

case.

65. Case Management Judge Molgat expressly made reference to Rule 3, which underpins the

reading all of the Federal Court Rules. The Rule clearly provides that a technical reading of

the Rules is to be avoided in favour of a reading that gives rise to reasonable results, results

that are in the interest of justice. Rule 3 is about substance over form.43 Allowing this Court

to adjudicate the substantive issues that confront all of the cases before the Federal Court is,

as concluded by the Case Management Judge, in interest of justice.

43
MNR v. National Foundation of Christian Leadership, [2005] 1 CTC 185, 59 DTC 5034, AGC Book of
Authorities, at Tab 13

33
F. The Discontinuance was Filed after the Issuance of the Counterclaim

66. The Plaintiff admits that it filed and served his Notice of Discontinuance after the AGC served

and filed the Counterclaim. However, the Plaintiff contends that because service by the AGC

was effected on a Sunday, the Notice of Discontinuance and the Counterclaim must be

deemed to have been served simultaneously on a Monday morning and that precedence must

be given to the Notice of Discontinuance. This is a technical application of the Rules and for

which there is no legal authority to support it.

67. There is no legal debate that, subject to Rule 190 of the Federal Court Rules, once a

discontinuance has been filed, a proceeding ends and the Court file is closed.44 The issue for

the Case Management Judge in this case was whether the door had been left open to the

Attorney General to file a Counterclaim under Rule 190.

68. As determined by the Case Management Judge, the Plaintiff does not dispute that it received

the Counterclaim on July 5, 2020, prior to serving and filing its Discontinuance on the

morning of July 6, 2020. Although service and filing cannot take effect on a Sunday, the

actions of the AGC clearly preceded those of the Plaintiff, such that the Counterclaim and the

Discontinuance were not in fact simultaneous, as contended by the Plaintiff. While the

Plaintiff had given notice that it would file a Notice of Discontinuance on July 3, 2020, it in

fact never filed it until after the AGC served and filed the Counterclaim.

69. The Counterclaim was served and was submitted for filing, with proof of service, prior to

service of the Discontinuance by the Plaintiff, and they were properly entered and filed by the

Registry in the same sequence, prior to the entering of the Notice of Discontinuance. In this

matter, the Case Management Judge properly concluded that the Counterclaim was served

44
Olumide v. Canada, 2016 FCA 287 at paras. 27-30, AGC Book of Authorities, at Tab 14.

34
 and filed prior to the action being discontinued, which left the door wide open for the AGC.

The Plaintiff may have expressed an intention to act in the future, but it failed to do so and it

only has itself to blame for failing to file the Notice of Discontinuance on July 3, 2020.

70. The circumstances surrounding the AGC’s decision to file and serve a Counterclaim are also

telling and serve to explain the Case Management Judge’s decision. Over almost two years,

counsel for the Plaintiff refused to adhere to numerous Court Directions requiring it to provide

dates for the AGC’s motion, contending that counsel was under instruction by his client to

ignore all Court Orders. In so doing, he delayed a number of Defendants, not just the AGC.

All counsel for the various Defendants in the Related Actions were forced to attend a CMC

and force the Plaintiff’s hand on the agreement that had been reached. Only when counsel

realized that there was no escaping the impending motion that he announced that he would

discontinue the Parks Canada action. This came as a surprise to all of the Defendants. While

the Plaintiff sat idle on July 3, 2020 surprise announcement and did not file the Notice of

Discontinuance, the AGC received instructions from Parks Canada to file a Counterclaim and

it did so prior to the discontinuance.

71. The Plaintiff’s concerns with the acceptance of the Counterclaim by the Court Administrator

are also without merit. While the Plaintiff contends that the Counterclaim ought to have been

referred to the Court for direction, that is a matter for the Administrator to decide and within

its purview. Discretion was exercised and the Counterclaim was accepted. The language of

Rule 72(1)(b) of the Federal Court Rules is not mandatory. As such, what the Plaintiff

challenges in this appeal is the discretion exercised by the Court Administrator which he is

not entitled to do.

35
72. As for the Plaintiff’s submission that the Counterclaim should be removed from the Court file

on the ground that it is not filed in accordance with the Rules, this becomes untenable in the

absence of a motion, not to mention that there is no legal basis to do so. As concluded by

Case Management Judge, Rule 74 addresses whether a document should be removed due to

“a fatal substantive defect”, which is not the case here.45 Rule 74(1) also uses the word

“may”, making it a discretionary decision and not a mandatory one, contrary to what is

contended by the Plaintiff.

G. Discretion under Case Management

73. A Case Management Judge is entitled to exercise powers on all matters that arise prior to trial

or hearing of a specially managed proceeding, including the granting of an order nunc pro

tunc dispensing with compliance with Rule 172. The wide discretion afforded to a Case

Management Judge is not subject to review, absent some flagrant error of law for which there

is none in this case. The discretion of the Case Management Judge was properly exercised

and does not give rise to errors of law,

74. The conduct of the Plaintiff has been abusive. At the very last minute, when the Plaintiff

could not escape the inevitable, counsel announced that it would move to discontinue, all

without notice. All of this within the context of a motion that will resolve the TPM claims,

which cuts across all of the actions that are before the Federal Court. The exercise of

discretion by the Case Management Judge and the granting of an order nunc pro tunc

dispensing with leave was appropriate and well within keeping of Rule 55 and 385.

45
Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132 at para. 7, AGC Book of Authorities, at
Tab 6.

36
75. Case Management Judges are empowered to give any directions or make any orders that are

necessary for the just, most expeditious and least expensive determination of a proceeding on

its merits. As correctly stated by Case Management Judge Molgat, Rule 385(1) sits alongside

Rule 55 pursuant to which the Court may vary a Rule or may dispense with compliance with

a Rule, which powers are to be exercised with procedural fairness in mind. 46

76. In considering whether to exercise the Court’s discretion to dispense with compliance with

Rule 172, the Case Management Judge considered whether it would promote the objectives

of Rule 3, namely whether it would result in the most expeditious and least expensive

determination of all the issues before the Court.

77. The Court in this case determined that the Plaintiff would not be prejudiced by the order

dispensing with leave. A number of factors were considered, including whether the order

would have been granted had it been sought at the appropriate time, such that the timing is

merely an irregularity; whether the irregularity is intentional; whether the order will achieve

the relief sought or cure the irregularity; whether the delay has been caused by an act of the

court and whether the order would facilitate access to justice.47

78. While the Plaintiff disputes this conclusion, the Counterclaim did not raise any new issues

and simply created a legal framework against which the very motion that had been filed could

be adjudicated. The Plaintiff was not taken by surprise, nor did the Plaintiff allege this to be

the case. This was nothing more than a technical irregularity that in the face of the conduct

of the Plaintiff for which the Case Management Judge was prepared to cure by an order nunc

pro tunc.

46
Mazhero v. Fox, 2014 FCA 219 at paras. 2-6, AGC Book of Authorities, at Tab 12; Canada (National
Revenue) v. Mcnally, 2015 FCA 195 at paras. 8-9, AGC Book of Authorities, at Tab 7.
47
Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60 at paras. 89-90, AGC Book of Authorities,
at Tab 8.

37
79. In any event, the AGC was able to show that apart from the prospect of a counterclaim and

the motion for summary judgment, the Plaintiff would not suffer prejudice or injustice if leave

to file the Counterclaim is granted or dispensed with. The Plaintiff faced the very same

pleading and motion for summary judgment that he had been trying to evade for almost two

years.

H. Parks Canada Action is Dispositive of many of the Related Actions

80. All of the actions brought forward by the Plaintiff consists of two components, namely a

breach of copyright and a breach of the TPM provisions. The pleadings in all actions are

essentially the same as are a number of facts. A resolution of the Parks Canada action would

bring some finality to all of the actions.

81. Justice Barnes had an opportunity to assess the fair dealing defense and concluded that all of

the articles that were shared by that institution were subject to the fair dealing defense under

the Copyright Act. The articles were used for the furtherance of the public interest for which

this public institution had been bestowed and there was no improper use.

82. The business model of the Plaintiff of sending inflammatory and inaccurate articles to public

institutions and enticing them to purchase a subscription on ambiguous terms and conditions,

all of which is followed up with a civil action, was adjudicated by the Federal Court. When

faced with the realization that the fair dealing defence was available to public institutions, the

Plaintiff quickly amended pleadings in the various actions and included the new allegation

that the TPM provisions had been breached for which there was liability.

83. The fact remains that the only live controversy as between the AGC and the Plaintiff is in

relation to the TPM aspects of the claims. As it relates to TPM claims, there are obvious

38
 commonalities between the various actions, both legally and factually. The terms and

condition of subscription are, for the most part, the same as are the representations made by

the Plaintiff in all actions following the purchase. The legal issues are also the same in all

actions as they relate to the TPMs.

84. As discussed in the CMC of April 5, 2019, the only difference between the Parks Canada

action and the remainder of the actions is in the number of articles that were circulated. In

the case of Parks Canada, the number of articles that were circulated internally were very few

and in all cases, it could be confirmed that they did not leave the institution. The factual

matrix allows the AGC to dispose of the entire claim with a resolution of the TPM issue. This

was the very basis of the agreement reached on moving forward with the motion for summary

judgment in the Parks Canada action.

85. The suggestion that the factual differences between the cases will make a material difference

in the outcome of the TPM aspect of the case is false

86. The issues raised in the motion for summary judgment are indeed of some importance and

will assist in the administration of the Copyright Act. CIPPIC has given notice that it intends

to intervene. Their involvement make it clear that a resolution of the issues in the motion

will have an impact in all other cases, and not just cases involving this Plaintiff.

I. Rule 297 is not an impediment

87. The Case Management Judge has the authority to remove a case from the restrictions that

otherwise apply to the simplified proceeding under Rule 297. The decision to allow a motion

for summary judgment to proceed was made by the Case Management Judge, but only after

the Plaintiff consented to the motion.

39
88. The case law provides that the Courts retain the discretion to remove an action from the

operation of the rules governing simplified actions, especially in a context where it would

give rise to an expeditious and least expensive means of resolving a dispute between the

parties, as is the case here.48 A strict and uncompromising reading of the rules is not to be

favoured.

89. The Parks Canada action provides the cleanest record upon which to adjudicate a number of

legal issues in relation to the TPM claims that are advanced in a number of actions. A limited

number of articles that did not leave the institution, which is the very reason why the AGC

proposed to move with a motion for summary judgment in this case. All parties in attendance

at the Case Management Conference of April 2019 were in agreement that moving with a

motion for summary judgment in this case made an abundance of practical sense, for which

the Court exercised its discretion and issued a Direction allowing for the hearing of the

motion.

90. Regardless, it is disingenuous of the Plaintiff to now raise this argument in a context where it

admits to have consented to a motion for summary judgment, but does not agree with the

scope of that motion.

48
The Source Enterprise Ltd. v. Canada (Min. of Public Safety & Emergency Preparedness), 416 FTR 227,
2012 CarswellNat 2865, 2012 FC 966; AGC Book of Authorities, at Tab 16; DE Rodwell Investigative
Services Ltd., v. Enoch Cree Nation Indian Band, 238 FTR 198, 2003 CarswellNat 1218, 2003 FCT 509
(Proth.), AGC Book of Authorities, at Tab 9.

40
 PART IV – ORDER SOUGHT

91. The Respondent respectfully requests an Order:

i. Dismissing the appeal of the order of Case Management Molgat; and

ii. Granting the Respondents costs of this motion.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 13th day of July, 2021.

__________________________
Alexander Gay
Counsel for the Respondent

TO: Scott Miller and Deborah Meltzer

MBM INTELLECTUAL PROPERTY LAW LLP
275 Slater Street, 14th Floor
Ottawa, ON K1P 5H9

Tel: (613) 567-0762

Fax: (613) 563-7671

Counsel for the Plaintiff

41
 PART V – LIST OF AUTHORITIES

Jurisprudence

1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2016 FC 1255
(CanLII), [2017] 2 FCR 256

Barkley v.Canada 2018 CarswellNat 1637, 2018 FC 228

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342

Bossé v. Canada, 2017 FC 48

Brauer v. Canada, 2020 FC 828

Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132

Canada (National Revenue) v. Mcnally, 2015 FCA 195

Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60

DE Rodwell Investigative Services Ltd., v. Enoch Cree Nation Indian Band (2003), 238 FTR
198, 2003 CarswellNat 1218, 2003 FCT 509

Fogal v. Canada (2000), 1999 CanLII 7932 (FC), 167 F.T.R. 266

Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215

Mazhero v. Fox, 2014 FCA 219

MNR v. National Foundation of Christian Leadership, 1 CTC 185 2005

Olumide v. Canada, (2016) FCA 287

Rahman v. Canada (Minister of Citizenship and Immigration) (2002), 2002 FCT 137
(CanLII), 216 F.T.R. 263

The Source Enterprise Ltd. v. Canada (Min. of Public Safety & Emergency Preparedness)
(2012), 416 FTR 227, 2012 CarswellNat 2865, 2012 FC 966

Trang v. Alberta (Edmonton Remand Centre), 2004 ABQB 497 (CanLII)

Turmel v. Canada(2016), 481 NR 139, 2016 CarswellNAT 126

42