Blacklock’s has a lengthy list of losses in its long litany of litigation against the federal government and many of its agencies. I have blogged about this many times.
It will be
recalled that Blacklock’s lost decisively on fair dealing back in its first test case against Finance Canada in
a judgment dated
November 10, 2016 that
was not appealed. Blacklock’s had, for
whatever reason, not pleaded anything about Technical Protections Measure (TPM) circumvention, so there was no ruling on
that issue. It has attempted to refloat its definitive defeat on fair
dealing via new claims in numerous proceedings based on alleged TPM
circumvention. As
I have reported, Blacklock’s was unable to stop the Attorney General’s summary judgment motion that may well finally end this this litigation saga.
Blacklock’s latest
loss is its unsuccessful attempt to stop CIPPIC from intervening in the summary judgment proceeding.
As most readers well know, CIPPIC has a long list of interventions in the public
interest. I was and still remain proud to have been CIPPIC’s outside and lead counsel
in its first and very influential intervention which was in the BMG v Doe case back in 2004-2005. See here in the Federal Court and here in the FCA.
This was the beginning of mass copyright litigation in Canada. The reasoning
in these judgments has helped keep Canada relatively free so far from the outrageous
excesses we have sometimes seen in the mass trolling cases in the USA. Here’s a pair of complementary articles that I and opposing counsel
wrote back in the day in 2005 when
such civilized controversies, confrontations, and collaborations on
commentaries were still possible.
Since then, CIPPIC
has been involved with many interventions in copyright and other cases – including in the SCC.
Flash forward to
2021-2022. Blacklock’s fiercely resisted CIPPIC’s motion to intervene in the
summary judgment motion on the basis that:
“…CIPPIC has no “legitimate”
interest in the outcome of the proceeding, that the scope of its proposed
intervention does not differ from that of the AGC; that it is not
in the interest of justice to allow the proposed intervention
because BR will suffer prejudice
as a result of CIPPIC’s “perceived bias” and “apparent
vendetta” against it, and
that it will result in an “inequality of arms” and unduly complicate
this already protracted litigation”
and that Blacklock’s:
‘…will be prejudiced because
CIPPIC is “motivated by
bias”, that its Executive Director and General Counsel has a “vendetta”
against BR, and is on a “crusade” as a result of past litigation before the
Federal Court and the Ontario courts,
and that “[his] position and influence over CIPPIC negates any possibility of
fairness”’
(highlight added)
Unsurprisingly,
the Case Management Judge Sylvie M. Molgat rejected these very surprising and unusual
allegations. The result is that CIPPIC will be now be permitted to file a 20
page Memorandum of Fact and Law. The Supreme Court of Canada now allows
interveners only 10 pages, so this is significant. CIPPIC will also be
permitted to make present oral submissions, for such duration as may be
determined by the hearing judge.
Here is CMJ Molgat’s Order, dated January 21,
2022,
which is unusually detailed for such an order. Readers should note that
interventions are rare in the Federal Court.
Here is CIPPIC’s motion to intervene – which provides a preview of what we may expect to
see and hear. CIPPIC will be represented by James Plotkin who has just recently joined Gowling WLG.
I’ll post updates
as this moves forward. The motion will be worth watching for sure.
Posts
