Court File No.

A-394-12 and A-395-12 FEDERAL COURT OF APPEAL BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants - and -

MARK FOURNIER and CONSTANCE FOURNIER Respondents

RESPONDING MOTION RECORD OF THE NATIONAL POST COMPANY (Responding Party to the CCIA Motion in Writing for Leave to Intervene) May 27, 2013 CASSELS BROCK & BLACKWELL LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Casey M. Chisick LSUC #: 46572R Tel: 416.869.5403 Fax: 416.644.9326
cchisick@casselsbrock.com

Jason Beitchman LSUC #: 564770 Tel: 416.860.2988 Fax: 647.259.7993

jbeitchman@casselsbrock.com

Solicitors for the Appellant, National Post Company

-2TO: FASKEN MARTINEAU DUMOULIN LLP 55 Metcalfe St., Suite 1300 Ottawa, ON K1 P 6L5 Jay Kerr-Wilson Ariel Thomas Tel: 613.236.3882 Fax: 613.230.6423 Solicitors for the Proposed Intervener, Computer and Communications Industry Association AND TO: BRAZEAU SELLER LLP Barristers and Solicitors 55 Metcalfe Street Suite 750 Ottawa ON K1 P 6L5 James Katz Tel: 613.237.4000 ext. 267 Fax: 613.237.4001 Solicitors for the Appellant, Richard Warman AND TO: MARK and CONSTANCE FOURNIER 2000 Unity Road Elginburg ON KOH 1 NO Tel: 613.929.9265 Fax: 609.379.8793 Respondents

Court File No. A-394-12 and A-395-12 FEDERAL COURT OF APPEAL BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants - and -

MARK FOURNIER and CONSTANCE FOURNIER Respondents

RESPONDING MOTION RECORD OF THE NATIONAL POST COMPANY (Responding Party to the CCIA Motion in Writing for Leave to Intervene)

INDEX
Tab 1. A Description Affidavit of Caitlin Russell, sworn May 27, 2013, along with the exhibits listed therein Exhibit "A" to the Affidavit of Caitlin Russell, a copy of the Notice of Appeal of the National Post Company in Court File No. A-39412 Exhibit "B" to the Affidavit of Caitlin Russell, a copy of the Notice of Appeal of Richard Warman in Court File No. A-395-12 Exhibit "C" to the Affidavit of Caitlin Russell, a copy of the Order of Mr. Justice Pelletier, dated December 18, 2012 Exhibit "D" to the Affidavit of Caitlin Russell, a copy of the Affidavit of Tamir Israel, sworn May 1, 2013(without exhibits), contained in the Motion Record filed on behalf of the SamuelsonGlushko Canadian Internet Policy and Public Interest Clinic Written Representations of the Appellant, National Post Company, dated May 27, 2013 Page 01-03 04-15

B C D

16-23 24-27 28-39

2.

40-58

~~

Court File No. A-394-12 and A-395-12 FEDERAL COURT OF APPEAL BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants - and -

MARK FOURNIER and CONSTANCE FOURNIER Respondents

AFFIDAVIT OF CAITLIN RUSSELL (SWORN MAY 27, 2013) I, Caitlin Russell, of the city of Toronto, in the province of Ontario, SWEAR THAT: 1. I am an articling student with the firm of Cassels, Brock &Blackwell LLP, counsel

to the National Post Company ( "National Post") and am assisting with this matter. As such, I have personal knowledge of the matters hereinafter deposed. Where my knowledge is based on information and belief, I have so stated and believe such information and belief to be true. 2. Attached hereto as Exhibit "A" is a copy of the Notice of Appeal of the National

Post in Court File No. A-394-12. 3. Attached hereto as Exhibit "B" is a copy of the Notice of Appeal of Richard

Warman in Court File No. A-395-12. 4. Attached hereto as Exhibit "C" is a copy of the Order of Mr. Justice Pelletier,

dated December 18, 2012.

~~

5.

I am advised by Jason Beitchman, counsel to the National Post, and believe that,

despite the fact that the National Post was named as an applicant in the application in Court File No. T-784-11 (the "Application"), the National Post had no knowledge that the Application had been commenced, was never served with any of the documents in the proceeding (including the originating process), and had no knowledge of the Application until after judgment was issued. The National Post did not submit any evidence or argument in the Application and did not appear at the hearing of the Application. 6. i am advised by Mr. Beitchman, and believe, that after learning of the judgment,

the National Post instructed counsel to commence the appeal in Court File No. A-39412.

7.

I have reviewed the Court Index and Docket on the Federal Court website in

respect of appeals A-394-12 and A-395-12. By April 23, 2013, all parties had delivered memorandum of fact and law on the merits in both appeals. A Requisition for hearing was filed on May 13, 2013.

8.

On May 2, 2013, the proposed intervener, the Samuelson-Glushko Canadian

Internet Policy and Public Interest Clinic( "CIPPIC"), filed a motion for leave to intervene. Attached hereto as Exhibit "D" is a copy of the Affidavit of Tamir Israel, sworn May 1, 2013 (without exhibits), contained within the Motion Record filed on behalf of CIPPIC. SWORN BEFORE ME at the City of Toronto, in the Province of ntario on May 27, 2013. ~~
Commissioner r Taking Affidavits (or as fhe case maybe)
(Signature of deponent)

Jason Be'rtchman

03
Court File No.: A-394-12 and A-395-12 FEDERAL COURT OF APPEAL

BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants -and -

MARK FOURNIER and CONSTANCE FOURNIER Respondents AFFIDAVIT OF CAITLIN RUSSELL (FILED THIS 27T" DAY OF MAY, 2013) Cassels Brock &Blackwell LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Casey Chisick LSUC #: 46572R Tel: 416.869.5403 Fax: 416.644.9326
cchisick@casselsbrock.com

Jason Beitchman LSUC #: 564770 Tel: 416.860.2988 Fax: 647.259.7993

jbeitchman@casselsbrock.com

Solicitors for the Appellant, National Post Company

oN

This is Exhibit "A" referred to in the Affidavit of Caitlin Russell sworn May 27, 2013

Commissioner for T.

Affidavits (or as maybe)

J~sOn Beitchnna~o

ns
Court File No. FEDERAL CURT OF' APPEAL

HARD WARMAN and NATIONAL POST COMPANY

Appeil~nts

MARK ~OURNIER and CONSTANCE FOURNIEf~

Respc~i~dents
e ~ ~I " j M C~~ ~C [ l 7 ~ ~ ~~~ ' ~~

TO THE RESP(JNDENT: A LEGAL PROCEEDING HAS BEEPS COMMENCED AGAINST YOU by the appellant, the National Post Company (the "National Post"). The relief claimed by the app~ll~nfi appears on the following page. TN1S APPEAL will be heard by the Court at a time and pace to be fixed by the Judicial Administrator. Unless the Court directs othenrvise, fihe place of hearing will be as requested by the appellant. The appellant rec~uesfs that this appeal be heard at the Federal Court of Appel in Toronto. IF 1fOU WISH TO OPPOSE THlS APPEAL., to receive notice of arty step in tha appeal or to be seru~:d with any documenfis in the appeal, you or a solicifiar acting for you must prepare a rrotic~ of app~aianc;~; in Form 341 prescrib~;d by tt'i~ F~d~r~l Cau~~`s Rules and serve it on the appellant's solicitor, or where the appellant is self-represented, on the appellant, WITHIN 10 DAYS of being served with this notice of appeal.

_2_ IF YOU INTENp TO SEEK A aIFFERFNT LII~PC7SITIQN of the c.~rd~r appealed frc~n~, you must serve and file a notice of crass-appeal in ~=orrn 341 prescribed by the Fed~r~~al Cvur~s Rules ir~st~~d of s~rvinc~ and filing a natic~ of apE7~~raE~c~. ~;opi~s of th~a F~dc~ral C,c~u~~s Rules, information concerning the local afficc~s of ff7e Courk and other necessary informakian may be obtaij~ed on request to the Administrator of fihis Caurt at Ottawa (telephone 613-992-4238) or at any local office. I~ YOU FAIL TO OPPOSE THIS APPEAL, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.

Date

CEP L ~ 10~~

Issued by (Reg stry Officer) Address of local office: 18Q Queen Street West Suite 200 Toronto, Ontario M5V 3L6

TO:

BRAZEAU SELLER LLP barristers anti Solicitors 5~ Metcalfe Street Suite 750 Ottawa ON FC1 P GL.~i James Katz TAI: 613.237.AOOQ ~xt. 267 Fax: 613.237.4001 Soliciic~rs for tf~e Applicant, Richard Warman

AND TO:

MARK FOURNI~R 2000 Unity Road Elginburg ON KOH 1 NO R~;s~ondent

-3AND TO: CONSTANCE FOURNIER 1000 l.)nity Road Flginburg ON KOH 1 NQ Respondent

APPEAL THE APPEI,LAN`T' APPEALS fia the Federal Co~.~rt of Appeal from the Judgment of the Nanaurable Mr...)~.istice~ D~ugl~s Rennie dated June 21, ?q12, by which the C~aui~k dismissed the Application and d~t~rminPCi, amc~nc~ other things, thafi ~N i ~~-~~1
(a)

4~ i I

the reproduction of excerpts of an article entitled "Jonathan Kay on Richard Warman and Canada's Phony-Racism Industry", which was authored by Jonathan Kay as an employee of the National Post (the "Kay Wark"), did not constitute the re~araductioii of a subsfiantial part of that work end therefore was not an infringement of copyright pursuant to subsections 3(1) and 27(1) of the Copyright Act, R.S.C., 1985, c. C-42 (the "Act"); and

(b)

even if the reproduced ~xc~rpts afi the Kay Work amounted to a substantial dart of the work, the respondents' reproduction of the excerpt consfiitutes fair dealing for the purpose of news ~~eporting pursuant to sectian 29.2 of the Act and therefore did not infringe copyright in the Kay Work.

THE APPELL,~NT ~,SKS that: 1. The appeal be allowed and that this Honourable Court order that: (~) the respondents' use of the excerpts of the Kay Work constitutes reproduction of a substantial part of that work within the meaning of subsecfiian 3(1) of the Act;

o~
_2_ (b) the respondents infringed copyright in the Kay Work, contrary to subs~ctian 27(1) of the Act, bath by reproducing the full texfi of the work and by reproducing the excerpts of the work; (c) the respondents' use of the Kay Wark was not fair dealing for the purposes of news reporting and therefore does not qualify far the exception from copyright infringement in section 29.2 of the Act; {d} the appellants are entitled to statutory damages for infringement of copyright in the Kay Wark; {e) the respondents remove the posting of the Kay Work from their website and be enjoined from further publishing the excerpfi of the Kay Work; (~ the respondents pay to the appellants the costs of this appeal and of the application; and (g) fihe appellants be granted such further and ether relief as this Honourable Court deems just. THE GROUNDS OF APPEAL are as follows: I. l'~verview 2. Pastmedia Networks Inc., which is the successor corpor~fiion to the National Post

(callectiv~ly refcrre~ to as "National Past"), is the sole owner of copyrigh# in the Kay Work. !f hods no copyright in#erest in the other two works at issue in the court below. The National Post's interest in this proceeding is restricted to addressing the correct

c~
-3interpretation of tf7e Copyright Act as it applies to alleged infringement of copyright in the Kay Work. It takes no position on the dispute between Mr. Warman and the respondents. 3. On January 13, 2010, the National Posfi granted an exclusive licence to copyright

in the Kay Work to Mr. W~rm~n. 4. In April 2010, Mr. Warman discovered thafi the full text of the Kay Work had be~:n

reproduced on fihe respondents' website, www.freedomininn.cam( "Free Dominion") 5. On April 16, 201 Q, Mr. Warman der7ianded that the respand~nts remove the Kay

Work, and the respondents did so. However, after taking down the reproduction of the entire work, the respondents replaced it by posting exc~r~ts of the Kay Work nn ~r~e Dominion. 6. Mr. Warman and the National Past then commenced the application below,

clair77ing damages for copyright infringement in the Kay Work ~risir7c~ fi~orn the reproduction of the posted excerpts. '7. 7'he full text of fh~ Kay Work cpnsists of the headline and 11 paragraphs. Thp Free

C~aminion website reproduced the headline of the article, three complete paragraphs, and part of a fiourth paragraph. ~3. In tV7e view of thc: ~pplicati~n judge, th~r~ was no infringement of copyright in tr7e

KG3y Work.

~~

9.

First, he detPrmin~d fih~t "the r~sp~andents did not re~~r~d~ace ~ ~~ak~stanti~l part of

thy: Key Wr~rk"and that therefore there was na infringement of the applicant's rights under subsPCtion 3(1) of the Act. 10. Second, t7e found that, even if the reproduced portions of the Kay Work amounted

to a substantial part, such reproduction constituted "fair dialing for the purposes of news reporting" pursuant to section 29.2 of the Act. 11. In the National Post's view, these findings cansfiitute significant errors on the part

of the application judge. As described below, this appeal raises important questions about the correct application of sections 3(1), 27(1) and 29.2 of the Act. If. The Re~poa~denfis Reproduce~c~ a Subsfi~ntial Pert of the Kay Work 12. The Court erred by failing to conclude that the respondents' reproduction of the

entire Kay Work infringed copyright in that work. 13. Thy Court erred further by concluding that the respondents did not reproduce a

"subst~nfiial part" of the Kay Work by posting the excerpts at issue an their website. In so finding, the Court erred by: (a) finding that a quantity of "less than half of the work" specifiically, the headline, three complete paragraphs, and part of a fourth paragraph from an article comprising a headline and 11 paragraphs in total is not a subsfiantial part of a work;

1~

-5(b) arbitrarily finding in paragraph 26 that "it appears [Warman] sought the exclusive licence to the Kay Work in order to prevenfi its further publication," which finding is unsupportable nn fihe evidence; (c) cc~nclucling that the Kay Work was not excerpted to "save time and effort," which conclusion is arbitrary and unsupported key the evidence; and (d) incorrectly characterizing fihe excerpt as a paraphrase of the Kay Work, when only a small portion of the excerpt was actually paraphrased, and igrnoring the fact that, as a reasonable alternative to reproducing the excerpt, the respondents could have restated the underlying ideas of the Kay Work in their own words. 111. The Reproducfiion v~ras Not Fair Dealing for the Purpose of Flews Reporting 14. The Court erred in determining, in the altern~tiv~:, that the reproduction constitutes

fair dealing for tf~e purposes of news reporting. 15. Specifically, the Court erred in finding that the statutory pre-conditions for the news

reporting exception, which require that the source and the author of the work be named, were met when in fact tine neither the so~~rce (the National Past) nor the author(Jonathan Kay) were referenced in the infringing repraduction. 16. Further, in considering whether the dealing was "fair", the Court erred in its

application of the fairness factors by:

13
(a) determining that the purpose of the dealing was for news reporting when that finding was contrary to the respondent's admission on

crass-examinafiinn that the purpose of fihe dealing was to critique" Mr. Warman's activities;. (h) deter~~nining that the amount of the dealing was "very limited" and that this favoured a finding ofi fairness, when in fact the amount of fihe work reproduced was substantial and strongly favours a finding that a dealing is unfair; (c) failing to consider the nature of the work, which if considered would have supported a finding of unfairness; and (d) failing to find the dealing unfair, despite its findings that the alternatives to the dealing and the character of the dealing favoured a finding of unfairness; 17. 18. 19. The Federal Court Rules, Rule 335; "!"he F'Ederal Courfs Act, section 27; The Copyright Act, R.S.C., 1985, c. C-42, sections 3, 27, and 29.2. _._"~V..--~, `~ ~
~i` ~,. .~'' '~ _...

September 20, 2012 ,~~f

CASSELS BROCF~ 'BLACKWELL LLP 2100 Scptia Plaza '~ 40 King Street West Toronto, ON M5H 3C2 Casey M. Chisick LSUC #: 465721

_,_
Tel: 4~6.869.5403 Fax: 416.644.9326
cchisick@casselshrock.com

i~

Jason Beitchman LSUC ~: 564770 Tel: 416.860.2988 Fax: 647.259.7993

jbeitchman(a~casselsbrock.com

Solicitors for the Appellant, National Post Company

~5

Court File Na. FEDERAL COURT O~ APPEAL

BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY

Appellants

MARK FOURNIER and CONSTANCE FOURNIER Respandents

NOTfCE OF APPEAL

Cassels Brock &Blackwell LLP Barristers &Solicitors

Scotia Plaza, Suite 2100 40 King Street West Toranto, Ontario, M51-i 3C2 Casey M. Chisick LSUC #: 46572R TAI: 416.869.5403 Fax: 416.644.9326
cch isick@casselsbrock.com

Jasan Beitchman LSUC #: 5647707 Tel: 416.850.2988 Fax: 647.259.7993

jbeitchman@casselsbrock.com

Solicitors for the f~ppellant, National Post Company

This is Exhibit "B" referred to in the Affidavit of Caitlin Russell sworn May 27, 2013

Commissioner for T.

Affidavits (or as maybe)

Jason Beitchman

l~

FEC~~~,L GOU~~'~ C7~ flF'F~,A~

s~ rvu~w-~:
(~IC:t-lA~C~ 1/V,~Ii~VIAN end h~A'TIUNAL. f~(7,T C~M~ANY
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~r~d Mt'~C~iki f=C)liRNl~~ attd C~JNSTANC~ ~C~Uf~2Nf~f~

Fte~~~nc~~i'rts

NQTMC~ aF A~'PkA~ ~~t~ TII!~ ~~~I~t~kV~D~~1~` s.

~ ~,~~~A~. ~Rt~~;~EDtNG HAS ~~;~N Gt~MM~NG~D A~,A.I~I~T YOiJ by flee

ap~el(~nt, Richard W~rrr~~an (thy "APp~itan~"). T'he ~~lief ciaim~d {~y tP~~ Appeli~~7t ~pp~~r~ r~r'~ tP~c~ falfc~winc~ ~a~ac~~, TPi1S APR~4.I~ wilt k~~ I~~at~d by ~i7~: Coi~~C ~~ a~ time grid ~I~c~ to ka~ fixers key tf'a~ Juclfci~l ~drrtiriistra~ar, i~nl~ss the Gouct digec~~ r~th~:ruvise, #h~ ~rl~~u~=; ~,f hcrarir~~ will r.,~ ~s r~c~ue~~fc~cJ by kl~e ~pp~llant. Thy ~F~p~flant r~r~ue~ts ttt this t~E~pe~l l~c~ hr~rc~ gat tl~c F~sd~r~l rc~~arf; r~~ f~E~~~4j1 in t~tt~w~. I~ Yt~U WI~1~! TC1 Ut~~QSC T~}!S A~`P~A~, to r~a~iv~ nr~tice of any st~~ ire kl'c* ~~.~~~~f r~r to t serue~t with any cior.,t.~m~nt~ in xh~ anpeat, you or ~ sc~lir,,itUr acting fcrr you m~~~~ ~are~s~re a ncatit;e of ~p~e~rartce ii1 Ft~rm 311 pr~srrik~~d key tf7~; f-ccic~r~:~J C:cat~rts Rubs ~r~~i s~~ve it ran thy: ~~pel(~nt'W saticitor, ~r wh~f`~ tl~rt~ ~~pr~c~ilar~~t is 4~~If.~

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ap~a~~l, It~ ~'C~E1 NTENt? 7'C7~ S~~K ~ pIFF~~i~NT DI~K'Q~I'X'IOi~ off` i:hca ~~~cE~i rzg~C;~c~cafc:d frctirn, yc~t~ rnusf ser~r~ end file ~ notice oafctt'r~ss-~pp~~l in Farm :~~I ~1 pr~~,c;rit~~d by th~~ C~'~r~~r~l C~ou~s f?ul~s instead of,:ruing ~ancl ~fing ~ naG~c~ o~f ~~~p~arant;Fa. t;aF~i~;; cif Chi ~~;d~r~f ~aur~~ t~trlas, ir~fvrrri~tic~r7 car7c~rnitici the lor.,~! af~ic~s c,~f tiiti~; ~a~art r~i~d ~~f~c~r n~c~.ssary inforit~atir~n may be al~tairci n~~ ra~7u~st tc~ the Aclminl~tr~tor of this Ct~utt ~t C~ki,~wa (tcicaphc~ne fi13M~92~42~fi) ~r ~t any Icyc~! c~ffir.,c~. IT= YC?t.~i ~'~~L. T~ t~Pk't?S~ 1'~-Ml~ AF'REA~,, JUDi~~~NT lVI~Y ~G~, C11/~iV I~t lt'pU~. A,I~~~k~~~ ~t,Itlp'1tt~'ITNCIU"1' ~URT~t~~ N~7TIC~ "1"f:f YC?U. 1

({fie ~istry CafPic;~r)~ Address of lac~l afFic~: T ~ om~s I~'/lrcy M~G~c~ ~~~iilclirig 90 Spar}t~ ~treef, ~itn I~laor Ottawa, CAN fCiA 01-ICJ

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f::rc~3nburc~ C?N Kal-I 'f NCB
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~C~N~AI. TI-!i 1l~'F'~i...,C_.,~NT A~'i~CA!_~ to t37c~ f=~d~r~l Gout~t c~f,~ppc~71 frrsrn t{~t~ Judctrnt~r~i c>f ti~~ Fic~~~oui~:,bi~ Mr, .)u ticc~ C'~o~~c~l~s R~nni~ cicj~~d .l~~n~~ ~1, 2012., by wlrich the Coi~rl
di~mi~>~:c1 t17~ /lp~a~1~ttf`:} ~~plicati~,ri anti dQt~rmir~~d, inter ~llF~, t(t~t: (~) ~17~ rrprc~cll~ction Uf ~:xcr~rpts of can ~rticl~ c~ntifil~d ",1nr7~~Fh~n f~~~y orr 1~2irt~~~rrJ LN~ir~77t~it ~r~d ~~rr~cta's
I-~f101T~~~~CiS1T7 If7dLl51`f)~',

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~~ufi~~c~rcad ray Jr~r~ath~rn ~C~y ~$ ~n c~rrar~fc~ycac pf the N~Ei~:+ri~al {='c,~sfi ~Um~~rny

( #I7~ "K~y V~lc~rlc), dici r~c~t cc~n~titut~ the reproduction of ~ suk~sl:~i7ti~1 ~~art of ~f~at work and ff7~r~:fvr~ v~ra~ not an lnfringatr~ert ~f c:rt~pyric~l7t p~.ies~.i: -ant tc~ Kaui~~~c#inns 3(1) ~r~d ,`Z"7(~) cat the C~apyrir~ht Act, E'~.S.C,, 1!~t~:a, c. C-~2 (tt7~: "l~cl " }; (Pa}

r~~r~o~ if ti~r~ reproduccrl excerpts. of the Kay Wark vr~~ ~ sul~st<~nti~i ~a~rk of
tfita wc~tic, titt~ r~spc~ndenta' r~productian raft the ~xcc~rrat c:onstiiut~a fair ci~~ing fr~r the purp~s~ of news reporting pursta~nt td ~~clic~r~ 2~.2 cif thr~ f1c~t ~F~d kltic~tc~ar~ rlic~ npt infrin~~ the ap~licai~t's ccapyri~i~~t ire thc~ ff~,7y
1fVar4t; ~t7ci

(c)

that YC-~s l~~~.~s~llant'~ ~:lairri ~~r c~pyrigk~it ir~frinc~~rnc~rit rGg~rc~ing tine r~~~~,71511~C:'nt~' r~~rrdurtiai7 rai' thr enK~r~ ~rtirle ~ntitk~cl "l~~caximcrrn

C71sru~~fi~ar: ,S~a}~~i~ag N~:o~Naxis ~3y (~(ma~~) .~1ny Mr~r,i~,, N~c:~~ss;~ry",

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~~

.~w

Tk1~ Ai= 'P~I..~,ANT ASKS tl~~t: 1. Thc~ ~F;~~n:.~i h~ c~{Ir~wc~cl ~~~d tk7~t thfs hicancaurab(c Court urrl~:r tC'~~t.

(~)

the r~~~por~d~nx~ infrinc~~ci cta~~yric~ht it1 tNiSr lC~y Work, rr~i~tr7iy to

>e.ab c~tiaii ;~'T(~) of the ,pct, b~~th day repracJuc;inq t17~~ full text e~~f khe work ~7i~c! by rc~rc~cfucir~g the exc~r~pts aF tk~~ work;

(~~)

tt~yc; r~s~a~r7cf~r~t.~' use of tl7e ex~erpt~ of the ICu~y Wr~r(c cprrstitutes

r~wpr~d~ac~t'rc~n ~f ~a suk~st~~~~I~i dart of ~hrxi uvvrl< witf~ir~ tha rr7~~a~~ir~g caf

~LIb;~~+G~IOFI ~~~} Uf tI1G-' AG1;,

(~)

thc~ r~yp~an~l~r7t~' use ref the Key Work w~~ nat fair dc~~linca fior tYrE pur~c~s~~ cat" r7~ws r~par#inc~. end th~r~Fcare c~a~~ not qualify far the ~sec~p~tian frcarr7 c~~ryric~ht infrit7c~~m~nt in section 2~.2 at the A rt;

(d}

tP~~ re~pc~nd~nt~ infrin~jr~cl cr~pyrighf in the W~rrn~i7 Warl~, cc~r~trary to :tiuEa~~:~:tic~n 17(1) o~F the Act, by rap~at~d{y ~rici cai7tit'iur~usfy rQpro~uoiric~

tf~~ f~.~ll k~xt {afi the W~rr~~~rt Wr~rk; (r) tf~~ ~~~~~l4~rit i~ ~ntitfcsci tc~ ~Lxtutc~t~ d~m~a~~~ frrr irtfrii~ar~emc~rtt of ca~yyrit~l~it in thy: I~~y Work grid tl~~a W~rrrndn Work; (t'~ thy: r~;;~a~nci~ n#, be: ~t~jr~ir~erl firom furthor publishing thy: i<~y Work ~nrs tP7~ W~rin:-~n Wc~t~lc;

a~ _~~
(c7} the rc s~~canc~~~nt~ ~aay kr.3 tf7e: Ap~a~Cl~rtt his r~r~,~~. OP tiI'iIS <~~s~sli~;~atit~ir, ~~ric~ (17) tf7n ~E.~~~~Il;:~rifi lac grarEt~d sG~cli f~Yrkh~r ar7ci ~tl7~r relief a~ trim t lanourrat~lc~ Gc>urC det.sr~~ just. 'T~-l~ ~~~c~Ui~[75 ~F ,~~~C'Al. ~rs~ as fallaws: 2. `i~h~ }-IonoGiralal~ Mr. ,l~~~ki~ ~:~nni~ Prrr~d ii7 feet ~~nc~ in I~uu in ~Fi:.1llllltf 1.0
GOII~IUC~~?

c~E7~7E:~I

~~r~d of the

that ttic res~~c~r~r3c*r~ta' ir7iti~[ r~prodati~n of ttie ~ntir~ I<ay Work liifriny~rf cc~~yric~ht it7 i~~~i~tt v~rc~r'I<. ~. The I-1c,noLr~~~ataE~ Cvlr. Justice R~r~nio csrr~d in facF, end in law in finding tit~t t~rrW

respc~ndc~nfis did not re:pr~r~el~ic~ a sut~st~n#iii part crf the Kay Wurlc and that therefc~rr~
tl~era wa } nc~ (r~friny~mei7F: of ~l~~t work ~urau~~nti to subsea#icxn ~{1) of the .Art.

~.

Thr~ I-lonour~abfe Mr. Justice f~pr~tti~ erred in f~cf and in I~w in finding that, ~vGn if

tt7e r~~~r~duc,e~1 ~aorllUi7~ caf t,Ei~ k~,~y Vllark C~atl ~mauntc~d tc~ a ~i.ahst~ir7ti~al ~~~~rt, s~acl~r
r~pr4t~i.~~tign cc~n~titt~trd t~a(R~ cic~~ling fr~r ti~~ purpo~~~ of n~w~ r~p~i~:ir7~ ~~~,r~~~~nt to S~ac~lon ~~3.2 at tM~ Act. 5. Thy: 1~Icarl~a~.ir~ial~ Mr. Stu ~sfi~:~~ R~r~rri~ ~.rr~c1 ire fac# atic! irr 14~w in ir~di~~g th~k the

~1E~~~:il~~nt'c, r(~il~r~ cif cc~riyric~trt infrin~~rn~n~ r,7f the W~rnian 1~irark uvnj~ ankir~ly st~tiat.r~ bzarrcci, ~t~r~c~4~nt to S~~;ticai7 ~1 of the Aat. I~~ p~triicul~r, Mr. Justice ~~:~~ni~: ~ail~c~ to ~rartcludc~ t(gat tine continuous, ~r~d reEa~:~t~ci r~~prcrd~~ctie~r~ of tP~e W~r~~~~n 1Nc~rl~ an ti=~~ re~p~~r-r~cant~' u~~eb;its thrc~ughaut the Ehr~c~-year period irrzmc~ciiate3,y ~rinr t4~ tlz~

a~
l~~pellant':~ cl~irr~ for ir~frinc~~rncrtt of tint w~>rk brc~U~t~t tl7~t portion of fih~ cl~~riim wiiiiin ~l7~a ~t~~l~.tiory (imit4~tiar~ E:~~riod ;sit out in ~eetid~~ 4'I oftr~o Act. Ey. ~u~C7 ~f~.~rt(~er ~nr~ r~kl~~ar ~rourtcl~ ~s Caunsei msay cacivis~ ~ric~ this; 1.4ra~tiour~blc>.

taoi.art may ~~ri7tit. 7. 3. 9, 'l~hc~ r~FCa'c:r~! Gt~ur~s Rr.~lr:s, ~~.+Ira ;i35; .I he fTc~r~er~! Cour~`c; Act, s~cti~r7 ??; ~CI~~ Go~~yrlq/~tl~r;f, f~:.~.C,, 1 85, c, G~42, s~ctlons 3, ~7, 2~3.?_ end 4'(.

~c~~,t~n~l~~r~1, 2~'f2

t~FtA.U3~LL,~R,~.~..~' '7~t~-a5 M~~tc~lf~ StreQt tJttc~w~y, Oniarlc~ K1P ~~.5 J~rn~~ l~aCz L~UC;~: fi~{~+~4CK T~; 613-237~4c~~a ~xr., ~~7 Fix: x'13-237-40p1 Solicitors far tP~a App~ll~nt, C~ichard W~rmtan

A "

~N

This is Exhibit "C" referred to in the Affidavit of Caitlin Russell sworn May 27, 2013

Commissioner for Ta

(or as may be)

Jason Beitchrr~an

~s ~~~ rt~~~~
r

~~~r~xz~r C~~~~zrf ~-~~~a~~~~

~ .t::~,~s ~. _ _

C~~ixx~ ~'~~~~eX ~~e~~~~X~

Date: 20121218
Docket: A-394-12

Ottawa, Ontario, December l8, 2012

Present:

PELLETIER J.A.

BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants and

MARK FOUItNIER and CONSTANCE FOURNIER

Respondents

ORllER

WHEREAS by direction dated November 21,2012,the Court asked the parties for their comments as to why the Court should not make the order proposed in that direction; and

WHEREAS the parties' submissions have been received and considered;

Page :?

NOW THEREFORE IT IS HEREBY ORDERED THAT: 1) The motions to dismiss appeals A-394-12 and A-395-12 sue dismissed. Pursuant to Rule 53(2), the following orders are made:

2) The appeals in files A-394-12 and A-395-12 shall be consolidated.

3)

The appeal in file A-394-12 shall ire considered as the lead appeal and file A-395-12 shall he

considered the related appeal.

4)

The style of cause in any further proceedings shill be the style of cause in file A-394-12 and

shall bear the docket numbers A-394-12 and A-395-12.

5)

One appeal book shall be prepared containing the material For both appeals. There shall be one

agreement as to the contents of the appeal book which shall be served and filed in the lead appeal and in the related appeal within 21 days of the date of this order, failing which a motion to settle the conCents of the appeal book shall be served and filed within a further 10 days.

6)

Six copies of the appeal book, and any other documents to be served and filed, shall be filed

within thirty days after the later of the filing of the agreement as to the contents of the appeal book, or the date of the order settling the contents of the appeal book. Tlie sixth copy shall be placed on the related file.

7)

The appellant in the lead appeal shall prepare a memorandum of fact and law, nut to exceed 30

pages, dealing with any common issues and the issues which a~e specific to the National Post Company, which shall be served and filed within 30 days of the filing of the appeal book.

Yagc : 3

8) The appellant in the related appeal shall prepare a memorandum of argument, not to exceed 15 pages dealing only with the issues which are specific to the appellant Richard Warman, which shall be served and filed within 15 days ofthe date offiling of the lead appellant's memorandum of fact. and law.

9) The respondents shall file a single memorandum offact and law which shall not exceed thirty pages.and which shall be filed within 30 days from the date of service on the respondents ofthe memorandum offact and law in the related appeal.

10) The requisition for hearing together with a common book of authorities in the lead and the related appeal shall be served and filed within 20 days ofthe date of service ofthe respondent's memorandum offact and law.

11) The respondent's book of authorities shall be served and filed within 20 days offiling ofthe requisition for hearing.

12) The time lines in this order are peremptory and must be strictly complied with. If, for any reason, an extension oftime is required,the motion seeking such extension must be sled before the expiration ofthe time for doing the act for which an extension of time is required.

13) The costs ofthe motions to dismiss shall be costs in the cause.

"J.D. Denis Pelletier" J.A.

~~ r

~~

This is Exhibit "D" referred to in the Affidavit of Caitlin Russell sworn May 27, 2013

Commissioner for Taking

(or as may be)

Jason ~eitchrr3an

Court File No. A-394-12 and A-395-12

FEDERAL COURT OF APPEAL

BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY APPELLANTS

- and MARK FOURNIER and CONSTANCE FOURN[ER RESPONDENTS

AFF[UAVIT OF TAMIR ISRAEL

I, TAMIR ISRAEL,ofthe City of Ottawa, in the Province of Ontario, DO SOLEMNLY AFFIRM THAT: I. INTRODUCTION

1. I am Staff Lawyer at the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) hosted at the Centre for Law, Technology and Society (GETS) at the University of Ottawa's Faculty of Law. This Affidavit is sworn in support of CIPPIC's motion for leave to intervene in this appeal. 2. Except as otherwise indicated, I have personal knowledge of the matters to which I depose in this Affidavit. Where I lack such personal knowledge, I have indicated the source of my information and I verily believe such information to be true. Where specific CIPPIC activities are refereed to below in which I have had no personal participation, I have reviewed the

relevant files, documentation and submissions and base my account thereof on this knowledge. 3. I began working with CIPPIC in summer 2008 as a Student-at-law and Law Foundation of Ontario Public Interest Articling Fellow. I kept that position until summer 2009, at which time I became Staff Lawyer at CIPPIC. 4. CIPPIC is a legal clinic founded by the University of Ottawa, Faculty of Law. It was established in September 2003 with funding from the Ontario Reseazch Network on Electronic Commerce and an Amazon.com Cy Pres fund with the purpose of filling voids in public policy debates on technology law issues, ensuring balance in policy and law-making processes, and providing legal assistance to under-represented organizations and individuals on matters involving the intersection of law and technology. In 2007, CIPPIC received additional funding from the Samuelson-Glushko Foundation, enabling CIPPIC to continue fulfilling its mandate and to join the international network of Samuelson Glushko technology law clinics. To my knowledge, CIPPIC is Canada's sole public interest legal clinic devoted entirely to the practice of Internet law. CIPPIC provides its services free of charge to its clients. 5. CIPPIC generally operates under a Director and a Staff Lawyer, presently David Fewer and myself, respectively. Both the Director and Staff Lawyer are called to the bar of Ontario and work for CIPPIC full time. CIPPIC reports to an internal Advisory Committee comprised of eight faculty members, as well as to an external Advisory Board composed of five highly respected and accomplished lawyers and academics in the technology law field from across North America. CIPPIC also benefits from the expertise of a Student-at-law, as well as a number of law students who are involved in CIPPIC activities as interns for academic credit, as paid researchers, as paid interns during the summer months, or as volunteers. 6. CIPPIC's core mandate is to ensure balance in policy and legal decision-making on issues raised at the intersection of law and technology by participating in public and legal debates. This is primarily furthered by ensuring public interest perspectives that would not otherwise be heard receive due consideration. It has the additional mandate of providing legal assistance to under-represented organizations and individuals on law and technology issues, and a

tertiary education-based mandate that includes a teaching component and a public outreach component. In pursuit of these mandates, CIPPIC is deeply involved in research and advocacy on the nature and social impact of online activity and how the evolving legal landscape interacts with such activity. Its expertise has evolved through its varied advocacy on this front advocacy which includes interventions in various levels of court, expert testimony before parliamentary committees, involvement in Internet governance related matters before various quasijudicial tribunals and in international decision-making fora, and the publication of academic and advocacy reports on Internet law related issues. 7. The breadth of this activity has furnished CIPPIC with expansive institutional expertise on legal and Internet policy issues, encompassing matters such as the nature of Canadians' use of the Internet, the technical aspects of online legal issues and their social implications, and particularly on finding the balance between creator rights and user rights as copyright law and policy confronts the challenges posed by a digital society. Central to CIPPIC activities is the constant attempt to adapt normative frameworks and legal principles to the challenges raised by online activity. II. INSTITUTIONAL EXPERTISE (a) Judicial

8. CIPPIC has intervened in a number oftechnology-related proceedings on previous occasions, including, before the Supreme Court of Canada: (i) R. v TELLS Communications Co., 2013 SCC 16, on the need to adopt a flexible, purposive approach when applying Criminal Code protections intended to safeguazd against the interception of private communications to technologically advanced communications delivery methods; (ii) A.B. v Bragg Communications Inc., 2012 SCC 46, on the need to ensure privacy rights are protected in the context ofthe open court principle, particularly in light ofthe greater risk of secondary uses of informarion in judicial decisions posed by the online publication ofjudicial decisions;

(iii) Five copyright-related appeals heazd in conjunction, which raised issues related to the application of copyright concepts to a range of online activities: Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34; Rogers Communications Inc., v. Society Publishers

of Composers, Authors and Music

Authors and Music

of Canada,

2012 SCC 35; Society

of Composers,

Publishers of Canada v. Bell Canada, 2012 SCC 36; Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),2012 SCC 37; and Re: Sound v. Motion Picture Theatre Associations ofCanada, 2012 SCC 38; (iv) Crookes v Newton, 2011 SCC 47: wherein CIPPIC intervened to argue that more robust action than the mere posting of a hyperlink must occur before a hyperlinker can be held to have published defamatory statements in the linked content; and (v) Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34: wherein CIPPIC intervened to address the appropriate adaptation of consumer contract law principles to an online environment so as to take into account unique Internet issues, such as whether additional terms referenced through a hyperlink were `external'to the contract. 9. CIPPIC: has also been granted intervention status in other court proceedings, including: a. Warman v. Fournier, 2010 ONSC 2126 (Ont. Div. Ct.): appeal addressing the proper balance between the need to preserve the privacy rights and free expression rights of anonymous online speakers with the need to facilitate legitimate allegations of defamation. CIPPIC successfully argued that the proper balance required a protective framework to ensure privacy and free expression are not discarded upon a mere allegation ofdefamatory speech; and b. BMG Canada Inc. v. Doe,2004 FC 488; 2005 FCA 193: CIPPIC intervened both at first instance and, before this Court on appeal, in order to ensure privacy rights were factored

33

ocoo~~~~
when courts are asked to compel third party disclosure of identifying information for anonymous Doe defendants. CIPPIC successfully azgued that certain safeguards must be in place before a court will, for the purpose of enforcing online private rights (copyright), order a third party to identify otherwise anonymous individuals. 10. Aside from its activity as an intervener, CIPPIC has also been active in the courts as counsel to primary parties on copyright issues, including: a. Craig Northey v. Sony Music Entertainment Canada Inc. et al., Ont. Sup. Ct. File No. CV 0800360651 OOCP: CIPPIC participated in a legal team serving as class counsel in an action seeking damages from music labels for failure to pay license fees owing to class members for the making of mechanical copies of musical works; and b. Authors Guild v. Google, Inc., No. OS-Civ.-8136 (DC)(S.D.N.Y. March 22, 2011): CIPPIC acted on behalf of a group of independent Canadian authors and for the Canadian Association of University Teachers (CAU'1~ in opposing the proposed settlement to a U.S.-based class action settlement agreement that would have affected the rights ofinternational copyright holders, including Canadian authors. CAUT objected on the basis ofthis inclusion. 11. In addition, CIPPIC is currently involved in: a. Voltage v. Doe, Federal Court File No.T2058-12(legitimacy of mass litigation copyright monetization models; need to protect online anonymity in third party discovery) as an intervener; and b. Canada Post v. Geolytica Inc., Federal Court File No. T519-12 (copyright alleged to subsist in postal code data)as counsel for the defendant. 12. Finally, CIPPIC rourinely advises and represents both individuals and organizations regarding a

3y
broad range of technology and copyright issues. (b) Narliamentar-~~ Committees and Governmental Consultations

13. CIPPIC has had many opportunities to provide expert testimony and submissions to Pazliamentary Committees and other governmental processes regarding the challenges posed by online environments for Canadians, a sampling of which includes: a. testimony before the House Committee on Bill C-32, An Acr to amend the Copyright

Act, on striking the appropriate balance in copyright law and policy while taking proper account for competing interests of authors, owners, distributors, consumers, downstream creators and innovators(Mazch 8,2011); and b. testimony before the Parliamentary All-Pazty Arts Caucus on policy options for updating Canada's copyright laws in light ofnew digital exigencies(June 3,2010).
(c) Quasi-Judicial Tribunals

14. CIPPIC has participated in various activities before quasi-judicial administrative tribunals in pursuit ofits objectives. A representative sample of CIPPIC's advocacy in this field includes: a. submissions to the Copyright Board of Canada on behalf of the Canadian Association of University Teachers(CAUT)and the Canadian Federation of Students(CFS) objecting to a copyright tariff that aimed to include and evaluate a range of digital content(Access Copyright Post-Secondary Educational Institution Tariff, 2011-2013); b. complaints under the Privacy Act against the CRTC (letter requesting investigation, June 2005)and the Pension Appeals Board (July 2007)successfully calling for a reassessment of the open court principle in light of the greater impact and risks that emerge from online publication of non-anonymized decisions; and

35

c.

participation in consultation processes regarding domain name dispute resolution procedures internarionally(ICANN June 2004)and in Canada(CIRA January 2005). The processes sought to balance the need to facilitate intellectual property rights claims against websites and the privacy rights of domain name registrars.

15. Through these and other activities, CIPPIC has had substantial impact to date on the development of Internet law and policy in Canada, including copyright law. Expertise gained from these activities is supplemented by CIPPIC's client-based advisory activities and its participation in international policy-making forums. CIPPIC staff members are frequently called upon to do presentations, media interviews, and sit on panel discussions as experts in law and technology issues. 16. CIPPIC expertise is fiuther supplemented by its Faculty advisors and, more generally, its access to the University of Ottawa's Faculty of Law and Centre for Law, Technology and Society. CIPPIC relies upon this expertise and the multi-faceted perspective it has gained on the ways in which Canadians interact online and the ways in which legal and normative principles adapt to the challenges posed by such interactions in this intervention.
(d) Academic and Aclvocac~' Research and Reports

17. CIPPIC has published multiple reports, academic articles, and other materials on issues relating to the intersection oflaw and technology such as: a. "The Technical Case for Openness", in Casting an Open Net: ALeading-Edge Approach to Canada's Digital Future (May 2011), canvassing legal and technical arguments for maintaining openness and neutrality on the Internet; b. "Copyright and Fair Dealing: Guidelines for Documentary Filmmakers" for the Documentary Organization of Canada. This resource addresses fair dealing with respect to the reproduction of copyright material that occupies public spaces and is

3~
'11 ~;~'~ N h

incidentally captured on film in addition to general fair dealing guidelines for Canadian filmmakers(May 2010); c. On the Identity Trail project participation; an expansive multidisciplinary examination of the impacts of the online world on anonymity and identity. Participation included research on related topics and publication of various academic articles on the adequacy of online protections (Oxford: Oxford University Press, 2009); d. Reports funded by the Office of the Privacy Commissioner of Canada and the Social Sciences and Human Research Council covering a wide range of online activities. This includes: a report on digital rights management (September 2007), which examined the technical capacities of emerging technologies placed on products to facilitate surveillance of user activities for the purpose of enforcing intellectual property rights; and a report tracking data flows of personal information (April 2006) online from consumers,to online and then offline companies, and to data brokers; e. Participation in lawful access debates aimed at modernizing investigative techniques in order to account for technological advances. CIPPIC has participated in closed door consultations between civil liberties representatives and representatives of the Department of Justice, the Solicitor General, and Industry Canada and, at the behest of Justice, prepared a report of these proceedings on the topic (Mazch 2005). It has also submitted comments (October 2007) to the Ministry of Public Safety on the need to preserve civil liberties and constitutional values while modernizing police surveillance powers; and f. The publication of articles and book chapters addressing important copyright issues. CIPPIC's current Director, David Fewer, in particulaz has published a number of significant articles addressing important Canadian copyright law matters, including: ", in A Copyright Cocktail,(Montreal: "Copyright and the Supremacy of the Charter Les EditionsTh~mis, 2007); ~ "Slouching Toward WIPO: Canada's Reluctant Consideration of the 1996 WIPO Internet Treaties",23(2)E-Commerce Law &Strategy 1, June 2006;

3~
iJU~)i~

nn~~;

"Making Available: Existential Inquiries", in Michael Geist, ed., In the Public Interest: The Future ofCanadian Copyright Law (Scarborough, Irwin Law: 2005); "Invisible Infringement: Trade-marks, Meta-tags, and the Status of the Initial Interest Confusion Doctrine in Canada" (2003-2004) 4 Internet and E-Commerce Law in Canada 1; "Case Comment: British Columbia Automobile Assn. v. Office and Professional ", (2000-2001) 2 Internet and Employees' International Union, Local 378 E-Commerce Law in Canada 9(co-author: Wes Crealock); "A Sui Generis Right to Data? A Canadian Position",(1998)30 Canadian Business Law Journal 165; "Constitutionalizing Copyright: Freedom of Expression and the Limits of Copyright in Canada",(1997)55 U.T. Fac. L. Rev. 175; and Defrning the Public Interest in Canadian Intellectual Property Policy, Master's Thesis, University of Toronto (1997). l8. Through these activities, CIPPIC has had substantial impact to date on the development of Internet law and policy in Canada, including copyright law. Expertise gained from these activities is supplemented by CIPPIC's client-based advisory activities and its participation in international policy-making forums. CIPPIC staff members are frequently called upon to do presentations, media interviews, and sit on panel discussions as experts in law and technology issues. III. CIPPIC'S INTEREST IN THIS APPEAL

19. CIPPIC's historical concern that public policy issues arising at the intersection of law and technology account for the public interest places this appeal squarely within its mandate. 20. This appeal raises fundamental issues that lie at the core of copyright policy and fair dealing. T'he appeal also raises fundamental questions about the balance between fair enablement of knowledge distribution in online settings and fair compensation for copyright owners. The determination of these issues impacts on important public interest considerations that will affect all Canadians, notjust the parties to this appeal.

IV.

POSITION AND PROPOSED SUBMISSIONS

21. If granted leave to intervene, CIPPIC will make submissions regarding the following legal issues: a. the application of the statutory lilitation period set out in subsection 41(1) of the Copyright Act, R.S.C. 1985, c. C-42 to works published on the Internet. The recognition of the `ongoing reproduction' rule suggested by the Appellants will effectively end the availability of statutory limitations for copyright infringements online, by transforming content hosting into a daily act of reproduction; b. the scope of copyright liability that an intermediary can incur for a work posted to its site by a third party; c. the interpretation of"distinctive", as stated in the definition of"work" in section 2 of the Copyright Act. The definition of `distinctive' proposed by the appellant National Post is expansive and, if adopted, threatens to expand the scope of copyright protection over titles attached to works that do not warrant protection; d. what constitutes `substantial' reproduction under the Copyright Act. Minor excerpting for the purpose of news reporting or criticism should not be considered an `unfair dealing'. To hold so would be to render significant proportions of online communication liable to copyright suit or, more accurately, to censorship as anyone who dislikes the manner in which their works are being discussed will be able to sue; e. the interpretation ofstatutory conditions precedent to the fair dealing exceptions, as listed in section 29 and sections 29.1 and 29.2 of the Copyright Act The Act's attribution requirement was intended by Parliament to be flexible and informal, and should not be interpreted narrowly to defeat what are fair and legitimate online discussions; and f. whether minor excerpting for the purpose of news reporting or criticism should be considered `fair' dealing. The interpretation of `news reporting' advocated by the National Post appellant is inconsistent with several Supreme Court of Canada

3~
00001~~~
judgments calling for a broad and expansive interpretations of the purposes listed in section 29 ofthe Copyright Act. 22. CIPPIC will expand on these submissions ifleave to intervene is granted. 23. I believe that CIPPIC's submissions will be of assistance to the Court in deciding the important issues in this appeal. CIPPIC's submissions will be unique in that they will derive from its public interest mandate. CIPPIC will inform its submissions with its extensive experience articulating and advancing the public interest in copyright and in online media more generally. 24. CIPPIC's proposed intervenrion will not cause a delay in the hearing ofthis case nor prejudice the parties. 25. CIPPIC will not seek costs and asks that it not have costs awazded against it in the event that leave to intervene is granted. 26. I make this Affidavit in support of CIPPIC's Motion for Leave to Intervene in this matter and for no improper purpose.

SWORN before me at the City of Ottawa in the Province of Ontario this 1 S` day of May,2013 ~~~ David Fe~~ver, Co

) ) )

.~ C._..... ~--~ TAMIR ISRAEL

i Toner for Taking Oaths

yo
Court File No. A-394-12 and A-395-12 FEDERAL COURT OF APPEAL BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants ~Tir~ MARK FOURNIER and CONSTANCE FOURNIER Respondents

WRITTEN REPRESENTATIONS OF THE NATIONAL POST COMPANY (Responding Party to the CCIA Motion in Writing for Leave to Intervene) CASSELS BROCK & BLACKWELL LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Casey M. Chisick LSUC #: 46572R Tel: 416.869.5403 Fax: 416.644.9326
cchisick@casselsbrock.com

Jason Beitchman LSUC #: 564770 Tel: 416.860.2988 Fax: 647.259.7993

jbeitchman@casselsbrock.com

Solicitors for the Appellant, National Post Company

2 TO: FASKEN MARTINEAU DUMOULIN LLP 55 Metcalfe St., Suite 1300 Ottawa, ON K1 P 6L5 Jay Kerr-Wilson Ariel Thomas Tel: 613.236.3882 Fax: 613.230.6423 Solicitors for the Proposed Intervener, the Computer and Communications Industry Association AND TO: BRAZEAU SELLER LLP Barristers and Solicitors 55 Metcalfe Street Suite 750 Ottawa ON K1 P 6L5 James Katz Tel: 613.237.4000 ext. 267 Fax: 613.237.4001 Solicitors for the Appellant, Richard Warman AND TO: MARK and CONSTANCE FOURNIER 2000 Unity Road Elginburg ON KOH 1 NO Tel: 613.929.9265 Fax: 609.379.8793 Respondents

~~

Court File No. A-394-12 and A-395-12 FEDERAL COURT OF APPEAL BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants - and -

MARK FOURNIER and CONSTANCE FOURNIER Respondents WRITTEN REPRESENTATIONS OF THE NATIONAL POST COMPANY (Responding Party to the CCIA Motion in Writing for Leave to Intervene)

OVERVIEW 1. The National Post Company (the "National Post") opposes the motion for leave

to intervene in this proceeding filed by the Computer and Communications Industry Association (the "CCIA"). The CCIA has no actual direct interest in this proceeding. Rather, its stated purpose in seeking to intervene is to address what it describes as "disturbing worldwide trends" and to ensure that "Canada's copyright law remains Internet-friendly." These concerns are both irrelevant to the dispute between the parties in this proceeding and solely jurisprudential in nature. The CCIA's proposed intervention is nothing more than an attempt to influence the result in this proceeding in an effort to pre-emptively litigate the interests of its members. 2. In any event, the CCIA's participation is not necessary. Another proposed

intervener, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic

N3
( "CIPPIC"), has already filed a motion for leave to intervene. The CIPPIC motion: (i) is unopposed by the parties; (ii) proposes to address all of the same relevant issues that the CCIA seeks to address; (iii) discloses that, like the CCIA, CIPPIC is aligned with the Respondents in this proceeding; and (iv) demonstrates that CIPPIC is better positioned than the CCIA to represent the public interest in this proceeding (if any such interest in fact exists, which is denied). 3. For these reasons, the CCIA motion should be denied.

PARTI -FACTS 4. The CCIA motion seeks leave to intervene in two related appeals in Court File

Nos. A-394-12 and A-395-12 (together, the "Appeals").' The National Post is the Appellant in A-394-12. Richard Warman is the Appellant in the related appeal, A-39512. 5. The Appeals both challenge the Judgment and the Reasons for Judgment dated

June 21, 2012 (the "Judgment"),2 in which Mr. Justice Rennie dismissed an Application (the "Application") alleging infringement of copyright in three works. 6. One of those three works is a newspaper article authored by Jonathan Kay, an

employee of the National Post (the "Kay Work"). The National Post is the owner of

The Notices of Appeal in A-394-12 and A-395-12 appear as Exhibits to the Affidavit of Caitlin Russell, sworn May 27, 2013( "Russell Affidavit"), Responding Motion Record, Tabs 1(A) and (B).
2

Warman et al. v. Fournier, 2013 FC 803 [Warman], National Post Book of Authorities, Tab 1.

3 copyright in the Kay Work. Mr. Warman is the exclusive licensee of copyright in the Kay Work.3 The Appeal in A-394-12 relates exclusively to the Kay Work. 7. The respondents to the Appeals, Mark and Constance Fournier (the

"Respondents"), operate Free Dominion, a website discussion forum.4 The Application alleged that the Kay Work was reproduced on the Respondents' website without consent of the owner or the exclusive licensee and therefore infringed copyright. More specifically, the Application alleged that the Respondents had first published the Kay Work in its entirety, then removed the complete text of the Kay Work and replaced it with excerpts of that work.5 The excerpts comprise the headline and three and a half paragraphs of an 11-paragraph article. 8. Mr. Justice Rennie dismissed the Application. He determined that the excerpts of

the Kay Work reproduced by the Respondents did not constitute a "substantial part" of the work and therefore could not have infringed copyright in that work pursuant to sections 3 and 27 of the Copyright Act.6 He further determined that, even if the portions reproduced did amount to a substantial part, the reproduction constituted fair dealing for the purpose of news reporting pursuant to section 29.2 of the Copyright Act.' 9. While the National Post was named as an applicant in the Application, it had no

knowledge that the proceeding had been commenced. The National Post was never served with any documents in the proceeding (including the originating process) and
3 4 5 6

Ibid at pars 3. Ibid at pars 5. Ibid at pars. 7. R.S.C., 1985, c. C-42. Warman supra note 2 at paras. 23, 24 and 29.

had no knowledge of the Application until after the Judgment was issued. The National Post did not submit any evidence or argument in the Application and did not appear at the hearing of the Application.$ 10. After learning of the Judgment, the National Post instructed counsel to

commence this appeal, which was issued on September 20, 2012. By April 23, 2013, all parties had delivered memoranda of argument on the merits in the Appeals. A Requisition for Hearing was filed on May 13, 2013.9 11. On May 2, 2013, CIPPIC, which had not intervened in the Application, served a

motion record in support of its motion for leave to intervene in the Appeals. The National Post filed its responding motion record on May 13, 2013. The National Post did not oppose the motion to intervene by CIPPIC per se, but requested that appropriate limitations be placed on CIPPIC's participation. 12. On May 15, 2013, the CCIA served a motion record in support of its motion for

leave to intervene in the Appeals. The CCIA did not intervene in the Application. PART II - POINTS IN ISSUE 13. There is one issue on this motion: a) Should the CCIA be granted leave to intervene?

$ Russell Affidavit at pars. 5, Responding Motion Record, Tab 1.

9

Russell Affidavit at paras. 6 - 7, Responding Motion Record, Tab 1.

ys

yb
PART III - SUBMISSIONS 14. There are three important reasons why the CCIA's motion for intervention ought

to be denied. 15.

First, the CCIA has no direct interest in this proceeding. Instead, its interest is

purely jurisprudential and self-interested. The CCIA wishes to influence the result of this proceeding in an effort to influence the development of legal precedent in Canada in a manner that might be favourable to the commercial interests of its members and that might support its members' position in potential future litigation. 16. Second, the CCIA's proposed intervention would greatly expand the scope of the

issues in this proceeding. The CCIA seeks to engage in an extensive discussion of international law and international treaty obligations, which are at best marginally relevant to the Appeals. In any event, any examination of international treaty obligations would dramatically increase the magnitude, scope and complexity of this proceeding, and is not necessary to resolve the Appeals on their merits. 17. Third, the CCIA's participation is redundant and duplicative. CIPPIC has already

put forward a motion for leave to intervene and, like the CCIA, is generally if not entirely supportive of the Respondents' position. Other than the international law issues, which are irrelevant to the Appeals, the issues that the CCIA seeks to address have all been raised by CIPPIC. Further, to the extent that any issues of public interest or policy arise in this case, which is denied, CIPPIC is more appropriately placed than the CCIA to opine on them. Each of these reasons is addressed further below.

18.

[:~

(A) 19.

TEST FOR INTERVENTION Rule 109(2) of the Federal Court Rules'0 requires the proposed intervener to

demonstrate how its participation in the proceeding will assist in the determination of a factual or legal issue related to the proceeding. This is the fundamental question to be determined on a motion for intervention." (i) 20. The CCIA's Interest is Merely Jurisprudential Neither the CCIA nor any of its members holds any interest in either the Kay

Work or the website discussion forum operated by the Respondents. The CCIA admits that its members excerpt news articles online "on an enormous scale." Conversely, the Respondents in this case are alleged to have reproduced one article, and excerpts of that article, on a website message forum intended for a small community of users. 21. The CCIA has no direct interest in this proceeding. Rather, its intended purpose

is to transform this case into one that addresses its members' business model(s), which are radically different from the website at issue in this case, in an effort to influence legal precedent in that regard. 22. The possibility that a decision of the Court may have repercussions on future

litigation is not a sufficient interest to justify intervening in a proceeding.12 In C.U.P.E. v. Canadian Airlines International Ltd., Noel J.A. noted that the potential for

~0 1998, S.O.R./98-106. "Apotex Inc. v. Canada (Minister of Health)[2000] F.C.J. No. 248 at para 11, BOA Tab 2. 12 Troxide Canada Inc. v. R.(1994) 174 N.R. 212 (Fed. C.A.) at pars. 2, BOA Tab 3

"repercussions" on future litigation is not an appropriate basis to justify a motion to intervene:

It seems clear that at its highest PSAC's interest is "jurisprudential" in nature; it is concerned that the decision of the Tribunal, if allowed to stand, may have repercussions on litigation involving pay equity issues in the future. It is well established that this kind of interest alone cannot justify an application to intervene.s13

23.

The CCIA seeks to intervene in this proceeding in an effort to litigate collaterally

issues that may hypothetically, at some unknown point in the future, affect the commercial interests of its members. Indeed, the CCIA's own written representations on this motion make clear that its intention is to use this proceeding to advocate a position which it has been advancing unsuccessfully in other cases internationally:
25. There is a disturbing worldwide trend emerging in which copyright owners in news publications are attempting to squelch users' rights to quote the news. The CCIA and its members are firsthand witnesses to this trend and have advocated against it in multiple fora. 26. The National Post's Appeal is simply another example of this trend, and if Canada's copyright law is to remain Internet-friendly, the Appeal must not be allowed,'a

24.

From this passage, it is clear that the CCIA's real interests in this proceeding are

(a) to stem a so-called "worldwide trend" of jurisprudence that has been decided against their interests; and (b) to ensure that Canada's copyright law "remain Internet-friendly." 25. This "worldwide trend" includes the decision of a Belgian Court, affirmed on

appeal, in which it was determined that "the activities of Google News ... breach

13
'a

[2000] F.C.J. No. 220(Fed. C.A.) at para 11 (Cupe], BOA Tab 4.

CCIA Written Representations, paras. 25 and 26, Motion Record of the Computer and Communications "CCIA Motion Record"), Tab 3. Industry Association(

copyright law," along with recent decisions of a New York District Court and the U.K. Court of Appeal that found that a subscription-based news aggregator service was infringing copyright through unauthorized reproductions of copyright content.15 26. The Appeals in this proceeding do not involve multinational Internet-based

aggregators of news content. They are not about worldwide trends or "Internet-friendly" copyright laws. Rather, they are about a single article posted, first in whole and then in part, on a privately-run web forum, apparently for the purpose of facilitating discussion among members of that particular web community. 27. It is improper for the CCIA to attempt to use this proceeding as a forum to lobby

against "worldwide" trends and in favour of an "Internet-friendly" copyright regime. This interest is of a purely jurisprudential nature, is unquestionably self-serving, and is not the appropriate subject matter for an intervention. 28. For these reasons alone, the CCIA's motion for leave to intervene ought to be

denied. (ii) 29. International Treaty Arguments are Beyond the Scope of the Proceeding The CCIA's attempts to expand the scope of this proceeding to pursue its own

agenda is further made clear by its intention to raise questions of "Canada's

~s Goog/e Inc v Copiepresse et al., Brussels Court of First Instance, Court File No. 06/10/928/C February 13, 2007, aff'd Goog/e Inc v Copiepresse et al, Brussels Court of Appeal (9th Chamber) May 5, 2011, BOA Tab 5; and see The Associated Press v. Meltwater U.S. Holdings Inc. et al., [2013] 12 Civ. 1087 (DLC), BOA Tab 6; and see The Newspaper Licensing Agency Limited v. Meltwater Holding BV,[2011] EWCA Civ 890, BOA Tab 7.

~o
international treaty commitments"16 and the effect that those treaties may have on this proceeding.

30.

The Court has expressed caution in granting intervener status to a proposed

participant who seeks to expand the focus of a proceeding. Indeed, it has been held that an intervener may not widen or add to the issues to be determined in a proceeding." 31. In Eli Lilly Canada Inc. v. Canada (Minister of Health), Justice Blais (as he then

was) noted that the Court should "try to balance the possible advantages of intervention with the disruption that may be caused" by an intervener's participation and that the Court's focus "should be on determining whether the contribution that might be made by the interveners is sufficient to counterbalance the disruption caused by the increase in the magnitude, timing, complexity and costs of the original action."'$ 32. None of the parties in this proceeding have raised international treaty

commitments, nor did Justice Rennie consider any such issues. To raise these issues at this stage of the proceeding would be unduly disruptive to the existing parties, who would be required to brief and respond to these complex issues. In any event, it would also be unnecessary to do so. As discussed above, this is not a case with "worldwide" implications however much the CCIA would like it to be and therefore it would be unnecessarily complicating and burdensome to expand its scope to include argument on international issues.

16 CCIA Motion Record, Tab 3, p. 57, pars. 13. "Canada (Minister of Indian &Northern Affairs) v. Corbiere (1996), 199 N.R. 1 (Fed. C.A.), BOA Tab 8. '$ (2001), 10 C.P.R.(4th) 310 (Fed. T.D.) at para. 36 [Eli Lilly], BOA Tab 9, aff'd 2001 FCA 108.

10 33. Consequently, the CCIA ought to be denied leave to address the issue of

SI

"Canada's international treaty obligations" in this proceeding. (iii) 34. The CCIA Adds Nothing that CIPPIC is Not Already Positioned to Address Finally, it is simply unnecessary for the CCIA to participate in this proceeding as

an intervener given that CIPPIC: (i) has already sought leave to intervene; (ii) supports the Respondents' position, as does the CCIA; (iii) intends to address all the same issues as the CCIA (other than the international law issue, which is unnecessary to address in any event); and (iv) is better positioned to address issues of the public interest (to the extent that any such public interest exists, which is denied). 35. Where an intervener serves no useful purpose in the proceeding,19 or where the

position of the intervener is identical to the position of another party, courts have dismissed motions for leave to intervene.20 36. The CCIA proposes four issues that it intends to address: (1) the effect of

international treaty commitments; (2) that the copying at issue is insubstantial; (3) the application of the fairness factors and the need for a large and liberal interpretation of fair dealing; and (4) the application of copyright limitations periods.21 37. Aside from the international treaty issue, discussed above, there is no material

difference between the position of the CCIA and the position of CIPPIC with respect to the remaining issues that the CCIA seeks to address. The following chart sets out the

19 20 21

Bell Canada v. C. T.E.A.(1997), 143 F.T.R. 24(Fed. T.D.) at para. 10, BOA Tab 10. Canadian Pacific Railway v. Boutique Jacob Inc., 2006 FCA 426 at Para. 30, BOA Tab 11.
CCIA Written Representations at paras. 13 to 16, CCIA Motion Record, Tab 3

11 issues that each of the CCIA and CIPPIC intend to address, and demonstrates the near-identical nature of their intended participation: ISSUE 1. 2. 3. CCIA The effect of Canada's international treaty commitments The reasons why the Respondents' copying was insubstantial The reasons why the Respondents' copying was fair dealing, according to all the factors set out in CCH Why, according to copyright law, a work is not "posted" online "each day" it is available on a website CIPPIC N/A What constitutes `substantial' reproduction under the Copyright Act Whether minor excerpting for the purpose of news reporting or criticism should be considered `fair' dealing The application of the statutory limitation period set out in subsection 41(1) of the Copyright Act, R.S.C. 1985, c. C-42 to works published on the Internet.

4.

38.

It is clear that the CCIA's intended contribution is nearly identical to that of

CIPPIC. However, CIPPIC has presented the issues it intends to address in a generally neutral form, suggesting that its intention is to assist the Courtin determining the issues on a principled basis. By contrast, the CCIA's presentation of the issues it intends to address is highly adversarial, indicating its intention to advocate in support of one position and for a particular result. 39. No useful purpose is served by permitting two interveners to make the same

arguments in support of the same position. Accordingly, if leave is granted to CIPPIC, the CCIA's motion for leave to intervene ought to be denied.
22 23

CCIA Written Representations at para. 36, CCIA Motion Record, Tab 3.

Affidavit of Tamir Israel (without exhibits), para. 21(a), (d) and (f), Exhibit D to the Russell Affidavit, Responding Motion Record, Tab 1(D).

sa

12 (B) (i) 40. LIMITS ON INTERVENTION If Leave is Granted, the Intervention Must be Limited In the alternative, if the CCIA is granted leave to intervene, the National Post

53

submits that the scope of the intervention proposed by the CCIA is overly broad and respectfully requests that the Court impose appropriate terms on the intervention. 41. Rule 109(3) of the Federal Court Rules provides the Court with the discretion to

place terms and conditions on the role of an intervener as may be appropriate in the circumstances of a particular case.24 Indeed, the role of an intervener is necessarily more limited than the participation of a respondent, who enjoys all rights of a party.25 42. It is not uncommon for the Court to impose terms including limitations on the

issues that the intervener may address, the length of the memorandum of fact and law that the intervener may file, and the time allocated to the intervener for oral argument.26 43. If leave to intervene is granted to both the CCIA and CIPPIC, both will be

supporting the position of the Respondents. Accordingly, the National Post respectfully requests that the memoranda of fact and law of these two interveners be limited to 20 pages total (i.e., 10 pages each) and oral submissions limited to 30 minutes total (i.e., 15 minutes each).

Z4 Canada (Director of Investigation &Research) v. Air Canada,[1989] 2 F.C. 88 (Fed. C.A.) at para 14, BOA Tab 12. 25 Sandy Pond Alliance to Protect Canadian Waters Inc. v. Canada (Attorney General) 2011 FC 158, rev'd in part 2011 FCA 129 at pars. 41, BOA Tab 13. 26 Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FC,~ 119, BOA Tab 14.

13 44. The National Post notes that it and the Respondents were limited to submitting

s~

memoranda of fact and law of not more than 30 pages in the Appeals, and that Mr. Warman was limited to a memorandum of not more than 15 pages.27 45. Further, and in any event, the CCIA should be precluded from expanding the

scope of the proceeding. For the reasons set out in paragraphs 29 to 33 above, any order granting leave to intervene should include a prohibition against raising any international law issues. (ii) 46. If Leave is Granted, There Should Be No Right of Appeal Further, the CCIA has asked the Court to grant it "party status in this proceeding

such that it may seek leave to appeal this Court's eventual decision to the Supreme Court of Canada." This extraordinary relief ought to be denied. 47. Ordinarily, an intervener must take the record as he finds it and has no status to

pursue an appeal.28 Interveners may be granted leave to appeal only in exceptional circumstances where there is an expectation that the Respondent would not have a vital interest to prosecute an appeal with the same vigour as the intervening parties.29 48. There is no reason to expect that the Respondents do not have a vital interest in

prosecuting an appeal. The Respondents fully participated in and were successful in the

27 Order of Pelletier J.A., dated December 18, 2012, Russell Affidavit, Exhibit "C", Responding Motion Record, Tab 2(C). 28 Edmonton Friends of the North Environmental Society v. Canada (Min. of Western Economic Diversification), [1991) 1 F.C. 416 (C.A.) at pars. 9, BOA Tab 15. 29 Chretien v. Canada (Attorney General)(2005), 273 F.T.R. 219 (F.C.) at para. 42, BOA Tab 16

14 Application, and have been fully involved in the Appeals, having prepared a comprehensive memorandum of argument on the merits. 49. (C) 50. This requested relief should be denied. CONCLUSION The CCIA should not be granted leave to intervene in the Appeals. It has no

SS

direct interest in the subject matter of the Appeals. Rather, it has a mere jurisprudential interest and is attempting to transform this proceeding into a way to collaterally and preemptively litigate issues that its members have faced in other jurisdictions. 51. Further, the CCIA's intended participation seeks to unduly expand the magnitude

and complexity of this proceeding by focusing on international law and requiring the parties to respond on those issues. Addressing international law issues is unnecessary in this case, and the CCIA ought to be denied the ability to raise this issue. 52. Finally, the CCIA's participation is simply not necessary given that CIPPIC has

already sought intervener status, intends to address the same issues that the CCIA seeks to address, supports the Respondents, and is better positioned to represent the public interest (if any exists). No useful purpose would be served by permitting two interveners to address the same issues in the same way and the CCIA's request to do so ought to be denied. 53. In the alternative, if CCIA's motion is allowed, its participation should be made

subject to the strict conditions outlined above.

15 PART IV -ORDER SOUGHT 54. The National Post respectfully requests that the CCIA's motion for leave to

S~

intervene in the Appeals be dismissed. ALL OF WHICH IS RESPECTFULLY SUBMITTED this 27 day of May, 2013.

CASSELS BROC ~'L~KWELL LLP 2100 Scotia Plaza 40 King Street W t Toronto, ON M5H 3C2 Casey M. Chisick LSUC #: 46572R Tel: 416.869.5403 Fax: 416.644.9326
cch isick@casselsbrock.com

Jason Beitchman LSUC #: 564770 Tel: 416.860.2988 Fax: 647.259.7993

jbeitchman@casselsbrock.com

Solicitors for the Appellant, National Post Company

~~

SCHEDULE A STATUTES OR REGULATIONS CopyrightAct R.S.C., 1985, c. C-42 2. Federal Court Rules, 1998, S.O.R. /98-106, R. 109

-17SCHEDULE B LIST OF AUTHORITIES 1. Warman et al. v. Fournier, 2013 FC 803 2. Apotex Inc. v. Canada (Minister of Health)[2000] F.C.J. No. 248 3. Tioxide Canada Inc. v. R.(1994), 174 N.R. 212(Fed. C.A.) 4. C.U.P.E. v. Canadian Airlines International Ltd. [2000] F.C.J. No. 220(Fed. C.A.) 5. Google Inc v Copiepresse et al., Brussels Court of First Instance, Court File No. 06/10/928/C February 13, 2007, aff'd Google Inc v Copiepresse et al, Brussels Court of Appeal (9th Chamber) May 5, 2011 6. The Associated Press v. Meltwater U.S. Holdings Inc. et al., [2013] 12 Civ. 1087 (DLC) 7. The Newspaper Licensing Agency Limited v. Meltwater Holding BV, [2011] EWCA Civ 890 8. Canada (Minister of Indian &Northern Affairs) v. Corbiere (1996), 199 N.R. 1 (Fed. C.A.) 9. Eli Lilly Canada Inc. v. Canada (Minister of Health) (2001), 10 C.P.R. (4th) 310 (Fed. T.D.) aff'd 2001 FCA 108 10.Bell Canada v. C.T.E.A. (1997),(sub nom. Bell Canada v. Communications, Energy & Paperworks Union of Canada) 143 F.T.R. 24(Fed. T.D.) 11. Canadian Pacific Railway v. Boutique Jacob Inc. 2006 FCA 426 12. Canada (Director of Investigation &Research) v. Air Canada (1988), [1989] 2 F.C. 88 (Fed. C.A.) 13.Sandy Pond Alliance to Protect Canadian Waters /nc. v. Canada (Attorney General) 2011 FC 158, rev'd in part 2011 FCA 129 14. Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 119 15.Edmonton Friends of the North Environmental Society v. Canada (Min. of Western Economic Diversification),[1991] 1 F.C. 416(C.A.) 16. Chretien v. Canada (Attorney General)(2005), 273 F.T.R. 219(Eng.)(F.C.)

Court File No.: A-394-12 and A-395-12 FEDERAL COURT OF APPEAL

BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants ~T'iT~ MARK FOURNIER and CONSTANCE FOURNIER Respondents

RESPONDING MOTION RECORD OF THE NATIONAL POST COMPANY (Responding Party to the CCIA Motion in Writing for Leave to Intervene) (Filed May 27, 2013) Cassels Brock &Blackwell LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Casey M. Chisick LSUC #: 46572R Tel: 416.869.5403 Fax: 416.644.9326
cchisick@casselsbrock.com

Jason Beitchman LSUC #: 564770 Tel: 416.860.2988 Fax: 647.259.7993

jbeitchman@casselsbrock.com

Solicitors for the Appellant, National Post Company