1395804 Ontario Ltd. v. Canada (Attorney General)

1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-05-31
Neutral citation
2024 FC 829
File numbers
T-1862-15
Decision Content
Date: 20240531
Docket: T-1862-15
Citation: 2024 FC 829
Ottawa, Ontario, May 31, 2024
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
1395804 ONTARIO LTD, operating as BLACKLOCK'S REPORTER
Plaintiff/ Respondent on Motion
and
ATTORNEY GENERAL OF CANADA
Defendant/ Moving Party
and
SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY & PUBLIC INTEREST CLINIC
Intervener/ Respondent on Motion
JUDGMENT AND REASONS
[1] The Attorney General of Canada [AGC], the Defendant in the action launched by 1395804 Ontario Ltd, operating as Blacklock’s Reporter [hereinafter “Blacklock’s Reporter” or “BR” or “Plaintiff/Respondent on Motion”], is the Moving Party seeking a summary judgment against the Plaintiff.
[2] This matter turns on a subscription to Blacklock’s Reporter, which is a subscription-based news corporation based out of Ottawa. An officer at Parks Canada purchased a $148 subscription to Blacklock’s Reporter, using a Parks Canada Agency credit card and address. Blacklock’s Reporter launched against the Defendant, acting on behalf of Parks Canada, an action alleging that officers at Parks Canada used the subscription in a way that is contrary to the Copyright Act, (RSC 1985, c C-42) [the Act] by obtaining, reading and distributing news articles without proper authorization.
[3] However, as I will explain, the matter in dispute reached the Court in a rather tortuous way. While Blacklock’s Reporter discontinued its action, the Defendant raced to the Court in order to counterclaim against the Plaintiff. The Attorney General also brought a summary judgment motion pursuant to Rule 213 of the Rules of the Federal Courts (SOR/98-106). That constitutes the matter which is before the Court. As a result, Blacklock’s Reporter is now the “Plaintiff/Respondent on Motion”, while the Attorney General, acting on behalf of the original Defendant, is now the “Defendant/Moving Party”.
I. How did we get here? [4] Blacklock’s Reporter chose to discontinue its action against Parks Canada on July 6, 2020. Nevertheless, the Defendant sought to keep some of the matters that would have been included in the discontinued action alive by serving an amended Statement of Defence and Counterclaim on Sunday, July 5, 2020. It was filed with the Court on July 7. However, Blacklock’s Reporter argued that its discontinuance of its action resulted in the motion for summary judgment being without object.
[5] I pause to give some more background to these proceedings. A number of actions against federal departments and Crown corporations have been launched by BR. They all allege copyright infringement, but the facts in each such action were found to be different by Case Management Judge Tabib, in her Order of March 3, 2016 (T-1862-15). She found that the news articles were different and often involved different authors as well as different acts of infringement, including the copying and transmission to others within the entity. There are also similarities between the cases: the theory of the case for the Plaintiff in each case appears to be similar. The Defendants were all claiming to be operating on the basis of fair dealing (Copyright Act, s 29) in that the subscriptions purchased were used to share within the organization articles to conduct research, media monitoring, verification of accuracy or consideration of whether a response was required.
[6] Associate Judge Tabib determined that the pending actions were to be stayed, in spite of BR’s resistance, until after one of those actions, involving the Department of Finance (T‑1391‑14), was finally concluded. The Case Management Judge held the faint hope that case T-1391-14 would lead to “a very high likelihood that it will lead to a significant narrowing of the issues” (Order of March 3, 2016, p 6/7). Associate Judge Tabib alluded to the possible application of the principles of issue estoppel in a number of future cases.
[7] Blacklock’s Reporter challenged the ruling. In a Judgment dated June 27, 2016 (2016 FC 719), Gascon J found that the appeals had to be dismissed, with costs amounting to $10,500 to be paid by BR (Order of August 16, 2016). Gascon J indicated in his Judgment of June 2016 that BR complained that Associate Judge Tabib speculated on the question of the application of the doctrine of issue estoppel, a matter that was argued before this Court in this case. He disposed of the issue as follows: “This statement clearly indicated that issue estoppel could help streamline cases where the AGC is a Defendant, but it did not suggest or imply that this doctrine could apply to the other Defendants” (para 63).
[8] The Department of Finance case, the so-called “test case”, was decided on November 10, 2016. It did resolve little concerning the other pending cases. The next one in the queue was the one involving Parks Canada. The matter of filing an amended Statement of Defence and Counterclaim by the AGC in the Parks Canada case was challenged by Blacklock’s Reporter. By an Order dated April 29, 2021, Case Management Judge Molgat found that the Statement of Defence and Counterclaim should be allowed to proceed, following written submissions made by the parties.
[9] We learn from the Order that the summary judgment motion made by the AGC was the sticking point. The AGC’s contention was that the motion would help resolve related actions. The genesis of what became the amended notice of motion for summary judgment after the events of July 2020 is found in the AGC’s motion for summary judgment. The AGC sought the dismissal of the parts of the Plaintiff’s claim that relate to the contention that there was a breach in this case of technological protection measures (TPMs, as per section 41 et al of the Copyright Act). The AGC was also asking for an order confirming that the use of articles obtained through a subscription constitutes “fair dealing” in the circumstances of the case: there was therefore no violation of the Act, says the AGC. That is because “fair use” is an exception to the TPM provisions. The obtaining of a subscription gives access to a password that can be shared in pursuit of the “fair use”.
[10] It is reported in the Order of April 29, 2021, that, leading up to the kerfuffle in early July 2020, Blacklock’s Reporter gave instructions to counsel “to proceed to the case management conference without a timetable for the summary judgment motion in Parks Canada (T-1862-15)” (Order of April 29, 2021, p 4/14). It appears that there were discussions between the parties to consider such motion.
[11] There were no further developments until April 2020. Blacklock’s Reporter requested a case management conference 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” (Order of April 29, 2021, p 4/14). The AGC submitted a detailed timetable for his motion for summary judgment in this case. That led to a CMC on July 3, 2020, where the Case Management Judge advised that an Order establishing a timetable for the motion for summary judgment would be issued. It is then that Blacklock’s Reporter, through its counsel, announced that it would discontinue its action against Parks Canada.
[12] Following the incidents of early July 2020, the issue became whether the motion for summary judgment should proceed. That takes us to the Order of April 2021. Case Management Judge Molgat had to adjudicate whether the counterclaim was still alive in spite of the discontinuance of the “main action”. Associate Judge Molgat found that the amended motion record of August 27, 2020 (an amended Statement of Defence and Counterclaim had come on the heels of the events of July 3 to 6, 2020) was alive and well. Recognizing that a discontinuance ends the proceedings (Olumide v Canada, 2016 FCA 287), that result would be attained only if the discontinuance is filed prior to the counterclaim. The counterclaim had been served on Blacklock’s Reporter on Sunday, July 5, prior to the discontinuance of July 6; at any rate, 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” (Order of April 29, 2021, p 9/14).
[13] The Case Management Judge then proceeded to dispense with compliance with Rule 172 and grant leave nunc pro tunc. Associate Judge Molgat wrote at p 12/14:
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.
…
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.
[14] Blacklock’s Reporter appealed the Order of the Case Management Judge. Madam Justice McDonald heard the appeal and dismissed it on August 25, 2021 (2021 FC 872).
[15] McDonald J found that the fact that the Amended Statement of Defence and Counterclaim was filed prior to the notice of discontinuance allowed for the motion for summary judgment to proceed. My colleague wrote: “If the discontinuance was filed before the Counterclaim was filed, the action would have been concluded and the summary judgment motion could not proceed. Whereas, if the Counterclaim was filed first, the Discontinuance would not apply to the claims advanced in the Counterclaim” (para 5). In the result, there is discontinuance of Blacklock’s Reporter’s action, but the AGC’s motion remains alive and was heard by the Court. However, the nature and quality of the evidence to be adduced was not known at the time. Whether a decision on the motion for summary judgment would help streamline the process concerning the other lawsuits was not a certainty, but rather a hope.
[16] As already alluded to, there are a number of related actions launched by Blacklock’s Reporter against various federal government departments and agencies. Indeed the first such action, involving the Department of Finance and alleging a violation of the Act by obtaining, reading and distributing articles without authorization, was dismissed in November 2016. The other related actions are held in abeyance. The matters to be addressed in this case may have an impact in the other Court cases still pending. At least, that is the contention of the AGC. The motion seeks declarations concerning three distinct matters:
The Terms and Conditions relative to the subscription to gain access to a website in order to have available articles. The subscription is offered and sold by the Plaintiff.
The use made of articles accessed by Parks Canada, said by the Defendant to constitute “fair dealing” in accordance with s 29 of the Copyright Act RSC 1985, c C-42.
Do the activities conducted by Parks Canada, i.e. the sharing of a password required to access articles from the Plaintiff’s website, constitute circumvention of technological protection measures taken by the Plaintiff?
II. The parties [17] The Respondent on the motion, an Ontario numbered company operating as Blacklock’s Reporter, is an online news corporation based in Ottawa. It makes available articles on a subscription basis via its website. BR covers politics, legislation, parliamentary committees, the federal bureaucracy as well as the courts. It has court cases pending concerning various departments and agencies. The first such court action was with respect to civil servants in the Department of Finance. It appears that this first test case did not resolve much as a second case, involving officers at Parks Canada, was litigated until a discontinuance intervened. Nevertheless, the Crown kept some matters alive in the hope of getting some declarations that could then be used in other litigation between Blacklock’s Reporter and various defendants.
[18] This case involves the Parks Canada Agency which is established pursuant to the Parks Canada Agency Act (SC 1998, c 31). The Agency is made a body corporate, under the responsibility of the Minister of the Environment, “that may exercise powers and perform duties and functions only as an agent of Her Majesty in right of Canada” (s 3). The long preamble to the Act speaks of the purpose of the Agency to be to ensure “that Canada’s national parks, national historic sites and related heritage areas are protected and presented for this and future generations and in order to further the achievement of the national interest as it relates to those parks, sites and heritage areas and related programs”. The Agency has the power to enter into contracts, to acquire property, sell, loan, exchange or dispose of any personal property or moveables acquired, or deal in the intellectual property controlled or administered by it (s 8). Legal proceedings may be brought or taken by or against the Agency in the name of the Agency (s 18).
[19] Following this Court’s decision on the ability of the AGC to counterclaim in spite of the discontinuance of the underlying action, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic [CIPPIC] sought to intervene in this matter, pursuant to Rule 109 of the Federal Courts Rules. The Case Management Judge’s Order of January 21, 2022 notes the opposition to the intervention by Blacklock’s Reporter while the AGC supported it. The Court granted leave to intervene.
[20] What prompted the Court to grant leave was Blacklock’s Reporter’s contention that access to its online articles was performed through the circumvention of its TPM, that being contrary to s 41.1(1)(a) of the Act. Indeed, does fair dealing constitute an exception to the TPM provisions, assuming that the required password can be a technological protection measure as the notion is defined. Here is how Associate Judge Molgat justified the intervention:
CONSIDERING that the issues raised involve the rights of owners of copyright on one hand and the rights of users on the other, and that the interplay between the Act’s anti-circumvention provisions and an affirmative defence of fair dealing with potentially broad implications for users’ rights appears not to have been the subject of previous decisions, the Court is satisfied that CIPPIC has a genuine interest in the matter;
CONSIDERING CIPPIC’s public interest mandate, institutional expertise and experience, the Court is of the view that CIPPIC has much insight into the area of copyright law and policy, including the reach of the anti-circumvention provisions in the Act, and the scope of fair dealing, as it has demonstrated in a number of interventions before this Court, the Federal court of Appeal and the Supreme Court of Canada.
The CIPPIC abided perfectly by the terms of the Order granting it leave. Its intervention was of great assistance to the Court.
III. The original test case [21] Many Court cases were held in abeyance while an initial Court case was before the Federal Court (Order of Case Management Judge Tabib, March 3, 2016). That case involved the Department of Finance, represented as it should by the Attorney General of Canada. It is 1395804 Ontario Ltd (Blacklock’s Reporter) v Canada (Attorney General), 2016 FC 1255, [2017] 2 FCR 256 [Department of Finance]. As we shall see, the AGC relies significantly on the findings made by Mr. Justice Robert Barnes. The matter was not appealed by Blacklock’s Reporter (the awarding of the costs in favour of the Defendant (2016 FC 1400) was appealed and the appeal was dismissed from the Bench (2017 FCA 185).
[22] In that first case, Blacklock’s Reporter alleged that Department of Finance officials violated its copyright by obtaining, reading and distributing the Plaintiff’s articles without authorization. The AGC argued, successfully, that the use made constituted fair dealing in accordance with s 29 of the Act.
[23] Our Court found that BR was using a “paywall” in order to protect its news copy. The paywall is referred to as the requirement to pay a subscription which allows for the use of a password to gain access to articles located on a website. There is no description or explanation as to what constitutes a password from a technical standpoint. In fact, there is no indication that access to a password was used by Finance officials.
[24] There is a description of how a subscription can be acquired through an online application. Single subscriptions, without the need to acknowledge and accept any terms of use, are available. The Court notes that the application “refers to the purchase of custom bulk rates for institutional subscribers who would like to distribute or share Blacklock’s content in-house” (para 5). Furthermore, the Court acknowledges that at the bottom of the application form, there is a “reference to “Terms and Conditions” but these are not particularized and would only be seen by a subscriber following a search of Blacklock’s website” (para 5). As we shall see later, that corresponds to the evidence available in the instant case.
[25] The facts in the Finance case differ somewhat from those in this case, as the articles which were made the subject of BR’s action in infringement were acquired by someone outside of the Department of Finance. Nevertheless, the articles were made available within Finance.
[26] BR’s managing editor, Mr. Tom Korski, was writing an article which he titled “$30,000,000 Sugar Tax is averted”. As part of his process, Mr. Korski interviewed the President of the Sugar Institute; he also sought to get information about tariff changes from an official at the Department of Finance. In spite of comments made by the Finance official, the article improperly attributed “did not comment” from the Department.
[27] Following a chain reaction, Mr. Korski sent the President of the Sugar Institute an e-mail comprising a digest of his article, which prompted the President to acquire a subscription to access the said article. The President then pasted the article in an e-mail sent to a Finance official in the International Trade Policy Division. The President wrote to the Finance official that she was not pleased with the “spin” put on the conversation she had with BR’s managing editor.
[28] Two days later, a second article was posted online. Once again, an unfavourable light was cast on the Department of Finance in an article whose title was “It didn’t make any sense”. The President, using the password, accessed the article and sent the second article to the same Finance official. As in this case, the President of the Sugar Institute testified being unaware of the Terms and Conditions: the President never thought she could be infringing BR’s copyright by sending the articles to the Finance official.
[29] Within Finance, the articles were shared between officials with a direct interest with a view to possible corrections. In the end, none were made. Blacklock’s Reporter sued, seeking $17,209.10 in damages.
[30] Our Court found that the Defendant, the AGC on behalf of the Department of Finance, was entitled to the protection afforded by s 29 of the Act: its use of the articles constituted fair dealing for the purpose of research, private study, education, parody or satire. Fair dealing does not infringe copyright. In the view of Barnes J, “the fair dealing protection so obviously applicable to the acknowledged facts of this case that the litigation should have never been commenced let alone carried to trial” (Supplemental Judgment and Reasons as to costs, 2016 FC 1400, at para 18).
[31] Indeed, in the appeal concerning costs, the Court of Appeal noted “(t)he Federal Court considered the issues before it – here, primarily the issue of fair dealing – to be well-settled in the jurisprudence and, thus, neither novel nor of public significance” (para 5).
[32] I turn to the analysis conducted in the “test case” involving the Department of Finance. Having reviewed the facts of the case, our Court acknowledged that the copyrighted material had been used by the Department without payment and without consent. Accordingly, it was for the AGC to establish that the use made was covered by s 29, the fair dealing provision which reads as follows:
Research, private study, etc.
Étude privée, recherche, etc.
29 Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.
29 L’utilisation équitable d’une oeuvre ou de tout autre objet du droit d’auteur aux fins d’étude privée, de recherche, d’éducation, de parodie ou de satire ne constitue pas une violation du droit d’auteur.
The reach of s 29 is broad and fair dealing is not an exception to a right conferred on copyright holders by law. It is inherent to the scheme, thereby striking a balance between owners and users. In this oft-quoted passage, Professor Vaver summarized the state of the law in his Intellectual Property Law: Copyright, Patents, Trade-marks (Toronto: Irwin Law 2nd ed, 2011):
The Copyright Act lets users carry on a wide range of activities without needing to worry about copyright. What the Act specifically permits is not an infringement. Whoever does a permitted act is not just taking advantage of a limitation, exception, exemption, defence, “loop-hole,” or gracious indulgence extended by a copyright owner. He is exercising a right inherent in the balance the Copyright Act strikes between owners and users. Both owner and user rights must receive the fair and balanced reading that befits remedial legislation. User rights need to be as liberally interpreted as owner rights are, lest copyrights become “instruments of oppression and extortion”” and unduly interfere with people’s rights to deal as they wish with their own tangible property. [Footnotes omitted]
(p 215)
[33] The leading authority on what constitutes fair dealing continues to be CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339 [CCH]. The case concerned the reproduction by the Law Society of reported cases, statute, regulation or limited selection of text from a treatise at the Great Library at Osgoode Hall operated by the Law Society. In a unanimous decision authored by Chief Justice McLachlin, the Supreme Court ruled that the reproduction constitutes “research” in accordance with s 29. For our purposes, it will suffice to refer to only a few findings made by the Supreme Court and considered fully by Barnes J.
[34] At paragraph 48 of CCH, the Supreme Court establishes the fundamental principles and underpinnings of the law:
fair dealing is an integral part of the scheme; it is not a defence;
“in order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively”.
[35] Evidently, pursuant to s 29, there must be a dealing which falls within one of the purposes identified in the section. It must also be fair. In the case at bar, as well as in CCH, the dealing was said to be for research. At paragraph 51 of CCH, the Court writes:
51 The fair dealing exception under s. 29 is open to those who can show that their dealings with a copyrighted work were for the purpose of research or private study. “Research” must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained. I agree with the Court of Appeal that research is not limited to non-commercial or private contexts. The Court of Appeal correctly noted, at para. 128, that “[r]esearch for the purpose of advising clients, giving opinions, arguing cases, preparing briefs and factums is nonetheless research.” Lawyers carrying on the business of law for profit are conducting research within the meaning of s. 29 of the Copyright Act.
[36] It is without difficulty that our Court found that the use made of the BR’s articles was for the purpose of research: “There is no question that the circulation of this news copy within the Department was done for a proper research” (para 33). In so doing, our Court considered and applied the other leading case concerned with s 29, the unanimous decision in Society of Composers, Authors and Music Publishers v Bell Canada, 2012 SCC 36, [2012] 2 SCR 326 [SOCAN]. In SOCAN, the Court confirmed and reaffirmed at paragraph 11 that “(i)n order to maintain the proper balance between these interests [the balance between protection and access], the fair dealing provision “must not be interpreted restrictively”: CCH, at para 48.” The SOCAN Court found that allowing previews of musical works by consumers before making a purchase did constitute research and, therefore, s 29 could apply if that dealing for the purpose of research was fair.
[37] The SOCAN Court endorsed and applied the six fairness factors for guidance developed in CCH: “the purpose, character, and amount of the dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work” (para 14). The SOCAN Court reviewed the six factors and concluded that the dealing (for the purpose of research) was fair.
[38] Barnes J conducted his own review of fairness factors. I reproduce most of paragraph 36 of his Judgment in view of the importance the findings will have on the outcome of the case:
[36] In finding the scope of use of the articles to be fair I have considered the following factors, all of which favour the Defendant’s position:
(a) The articles were legally and appropriately obtained by [XXX] who was a paid subscriber to Blacklock’s. Blacklock’s website was not hacked or accessed by illicit means. In the result, the articles were no longer behind Blacklock’s paywall when the Department obtained them.
(b) [XXX] sent the articles to [Departmental officials] for a legitimate business reason (i.e., to protect her business reputation and to manage her working relationship with the Department);
(c) The Department received the articles unsolicited and used them (i.e., read them) for a legitimate business purpose (i.e., to consider whether the stories required a response or correction);
(d) The articles were circulated among only six Department officials all of whom had a reason to see them;
(e) No commercial advantage was sought or obtained by the Department’s use of the articles nor were they republished in any form;
(f) The two articles represented only a small fraction of the protected news copy on Blacklock’s website and one of them was shortly-after publically exposed on Blacklock’s website;
(g) The articles contained information obtained from the Department in response to Mr. Korski’s queries. As a source, the Department had a direct and immediate interest in their content. Indeed, a finding of copyright infringement against a news source for the simple act of reading the resulting copy is likely to have a chilling effect on the ability of the press to gather information. Such a result cannot be in the public interest;
(h) [Departmental officials] had a reasonable basis for their concern that the articles misrepresented some of the information they had conveyed to Mr. Korski and that a correction might be warranted. The involvement of their colleagues in a possible follow-up was, in the circumstances, reasonable;
(i) Neither [XXX] nor the Department were aware of, or agreed to, Blacklock’s Terms and Conditions. In any event and as noted below, those provisions did not unambiguously prohibit the circulation of Blacklock’s copy for personal or non-commercial purposes. If [XXX], as a subscriber, had the right to use and distribute the articles for a non-commercial purpose, those who received the articles lawfully could reasonably expect to enjoy the same privilege;
(j) What occurred here was no more than the simple act of reading by persons with an immediate interest in the material. The act of reading, by itself, is an exercise that will almost always constitute fair dealing even when it is carried out solely for personal enlightenment or entertainment; and
(k) While the public interest is served by the vigilance of the press, copyright should not be a device that serves to protect the press from accountability for its errors and omissions. The Department had a legitimate interest in reading the articles with a view to holding Blacklock’s to account for its questionable reporting.
[39] Before concluding the review of the law and findings made by our Court in the Department of Finance “test case”, a reference to some further observations and findings is apposite. The relevance of a paywall and of terms and conditions to applying the fair dealing provision is recognized. However, the copyright’s owner must not only establish some prohibition, but it must be shown that the person involved was aware of the limitations. “All that is required is an acknowledgement at the time of acquiring access that the terms in question were read and accepted.” (para 38). That was not done and the subscriber had no reason to think a violation of the Act would occur by sharing articles of special and direct interest with people affected by them. Indeed, the Terms and Conditions were found by our Court to be ambiguous which results in the drafter of the conditions to be bound to the most favourable interpretation to the user of the copy:
[42] I do not accept that [the subscriber] or the Department should be taken to be aware of Blacklock’s web-based terms of use. But even if they had been aware they would have been no further ahead. Blacklock’s Terms and Conditions contain a material ambiguity concerning downstream distribution. On the one hand they seemingly prohibit distribution by subscribers but, on the other, they permit it for personal, or non-commercial uses: [Footnote omitted]
The use made of the articles was found to be for a non-commercial purpose.
[40] In the result, our Court dismissed the action. The AGC urges this Court, in spite of the discontinuance of the underlying court action, to issue a declaration of rights to the effect that there is room for rectification of the Terms and Conditions, that not only is there no breach of copyright on the basis of the facts in the underlying action, but also there is no infringement of technological protection measures [TPM], in the form of a password that was required to gain access to articles on Blacklock’s Reporter’s website.
IV. The facts in this case A. Notice of Motion [41] The Fresh as Amended Notice of Motion sets the framework to be used by the AGC to get the declarations sought. The AGC asserts:
a)the Terms and Conditions of the subscription were ambiguous and unenforceable; at any rate they should be interpreted in favour of Parks Canada. No adequate notice was given. The Terms and Conditions of the subscription allowed the distribution of articles within Parks Canada without infringing on the copyright or circumventing the alleged TPM;
b)the use made of the articles constitutes fair dealing;
c)Parks Canada acquired an institutional subscription, thus allowing the further distribution of the articles, as an officer of Blacklock’s Reporter represented to Parks Canada that the subscription was for the benefit of Parks Canada;
d)sharing the password as part of fair dealing does not constitute a circumvention of the TMP. There was no intention to circumvent in gaining access in these circumstances. At any rate, the public servants were permitted to share the password, under the Terms and Conditions, to access the articles from the website: thus there was no circumvention of the TPM.
B. The evidence [42] It should be stressed at the outset that it is largely unknown what specific evidence was before our Court in the case involving public servants from the Department of Finance. Some of it was mentioned by Barnes J, but it is less than clear, as we shall see, whether the issues with respect to the copyright infringement, and the existence of fair dealing, can be readily disposed of on the basis of the doctrines of issue estoppel and res judicata where the actual evidence is not sufficiently spelled out. That is not to say that the findings made are of no assistance. They are. The question is rather whether the test for issue estoppel is met (Danyluk v Ainsworth Technologies Inc, 2001 SCC 44, [2001] 2 SCR 460 [Danyluk]), including the exercise of discretion by the Court.
[43] The Moving Party, the AGC, forcefully suggested that BR’s modus operandi is akin to “copyright trolling”, which is described as copyright holders using the threat of litigation to generate revenue. BR is accused of publishing inaccurate, deceptive or inflammatory articles. Then, “teasers” are sent to federal entities to entice a purchase of a subscription. The terms and conditions are ambiguous and are buried in the webpage. The AGC contends that after a few months, BR files access to information requests to assess the amount of sharing of articles. I indicated during the hearing of the case that without the evidence of a pattern repeating itself – evidence that was not present in the case – I was not inclined to consider any further an allegation of “copyright trolling”, perhaps with a view to implying an abuse of copyright. Having considered again the evidence before the Court, I continue to disregard such assertions.
[44] Media relations is undoubtedly a role that is played at Parks Canada. The media coverage is monitored; if there are media pieces that contain erroneous or misleading information, a decision must be made on whether or not a response or correction is warranted. As related by one of three Parks Canada employees who testified by affidavit in this case, Mr. Frédéric Baril, that may well require that the content of media pieces be shared with experts and other employees within the organization. To put it simply, Mr. Baril’s evidence, which remained uncontradicted, is that media monitoring is part and parcel of the activities of federal entities, which includes Parks Canada.
[45] Mr. Baril, who was the manager of the unit with Parks Canada that gained access to some articles from BR through a subscription (le Directeur des Services ministériels et médiatiques), testified more specifically that Parks Canada’s interest in media reporting is with a view to correcting erroneous or misleading information: he provided examples of such occurrences involving Blacklock’s Reporter’s articles. Moreover, Mr. Baril stated that the only articles from BR, which were accessed by Parks Canada and shared within the organization, were articles related to the Agency’s mandate and activities. There were fifteen. He said that, typically, managers and senior employees would receive e-mails from BR referring to contents that were either deceitful or misleading, or alarmist. They required consultations within Parks Canada to formulate an appropriate response as a governmental organization. In a word, Parks Canada’s interest in articles published by BR was limited to those involving the Agency and the sharing of them, and only them, was limited to the personnel that might contribute to a response or further communication, if needed (see, for instance, Exhibit C to Frédéric Baril’s Affidavit, Moving Party’s Record, p 127 et al).
[46] The sharing of articles could also happen, according to Mr. Baril, with central agencies when the mandate or responsibilities of other governmental entities are engaged. The limited and occasional sharing would help ensure a coordinated response or position on behalf of the government.
[47] The second Parks Canada official who testified (affidavit and cross-examination on her affidavit) was Ms. Genevieve Patenaude. She was the official who purchased the subscription which allowed Parks Canada to have the password to gain access to the articles of interest to it.
[48] Ms. Patenaude, a media relations officer at Parks Canada, was instructed to purchase a subscription to Blacklock’s Reporter for the benefit of the entity she worked for, the Parks Canada Agency. That was on September 18, 2013.
[49] Ms. Patenaude testified at length on how she proceeded to acquire a subscription. She testified that between January 2013 and December 2015, media relations officials received numerous requests from BR for information. Having experience with the purchase of subscriptions for Parks Canada, she went to the Blacklock’s Reporter website to acquire a subscription.
[50] Ms. Patenaude stated in her affidavit, and never moved from her position on cross-examination, that the Blacklock’s Reporter webpage she accessed indicated only one type of subscription which was made available. According to her affidavit (Moving Party’s Motion Record, p 1156 and following), she accessed a webpage which had the same information as that found at her Exhibit A. Exhibit A contains the home page for the Blacklock’s Reporter website and a page with the title “Membership Levels” for those who wish to subscribe. That was actually a page retrieved by using the Wayback Machine, a device used frequently in litigation which archives historical information on the web. Ms. Patenaude said that was the page she saw in September 2013. As a matter of fact there is no indication on that page of more than one membership level, although the title “Membership Levels” appears on the page. On the same line where the level Blacklock’s Reporter appears, there is a link in light blue font entitled “I want Blacklock’s Reporter”. Ms. Patenaude clicked on that link.
[51] As part of Exhibit A, there is at the bottom of the home page the words “Terms and Conditions” in relatively small font: the words were inconspicuous although visible. When the purchase was made, the witness testified that she was unaware of their existence: it was in black font: indeed it was not identified as a link as oftentimes such a link is in light blue. Not only was the link not obvious, but there was no indication that there was a connection with institutional subscriptions. As I read Ms. Patenaude’s testimony, she was not aware of terms and conditions and these were not brought to the attention of the person who is interested in purchasing a subscription. She says that “I was not asked to acknowledge them, which is unlike what most vendors require. I also understood that a purchase of a “Blacklock’s Reporter” subscription, the only subscription available on the webpage, was an institutional subscription” (Genevieve Patenaude’s Affidavit, para 8).
[52] Ms. Patenaude proceeded to fill out the form called “Membership Checkout” with information relating to Parks Canada and the Agency’s credit card number; she identified the purchase as a Parks Canada purchase. The form that was filled out by Ms. Patenaude was not in evidence. Instead, the available form was retrieved from the Wayback Machine. It is striking that the form produced in Exhibit A, which contains the membership levels item, is dated December 2013. The price associated with the only level, “Blacklock’s Reporter”, is $157. However, the Membership Checkout form reproduced at Exhibit C of Ms. Patenaude’s affidavit indicates the price of membership to be $314, twice the amount posted in December 2013. That may well suggest that the Checkout form came later than December 2013.
[53] The version found in Exhibit C includes words Ms. Patenaude asserts were not on the form she filled out. They are: “For institutional subscribers who would like to share or distribute content in-house, please contact manager