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Court File Nos.: T-2090-14;
T-2b9-1S;T-1U85-15; T-162-15;
T-117-17; T-132-17; T-133-17; T-13~-17; T-943-17

FEDCRAL COtiR7'

BETWF.F.N:

1395804 ONTARIO LTD., OPERA'T'ING AS BLACKLOCK'S R~;PORTER

Plaintiff

and

THE ATTORNEY GENERAL 4F CANADA

Defendant

FACTUM pF THE DEFENDANT,
THE ATTORNEY GL+'NERAL OF CANADA

Novcmbcr 26, 20l 8

ATTORNEY GENERAL OF CANADA
Department of Justice Canada
Civil Litsgation Section
Sd O'Connor Street, Suite 500
Ottawa, ON K L A OH8
Fax:613-954-1920

e'er; Alexa~lder Gay
'1'cl: 61:i-670-8447
Email: Al~x~sndcr.(<<~y(ct,~jusiirc.~~.ca

Cai~nsel for the Attorney General of Canada
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OVERVIEW

1. There arc two parts to this motion, one tl~at deals with allegations made by plaintil'i`'s
counsel against Mr. Kaufman as it relates to his handling of freelvicers that provided affidavits
and another that deals t~~iih amendments to the pleadings, amendments that are largely time-barred.
Both parts of the motion should, f'or the most part, be rejected by this Court.

2. As it relates to the first Past of this motion, the plaintiff alleges that Mr. Kaufman breached
his professional obligations by asking freelance journalists to either attend for crass-cxaminatio~l
or withdraw their affidavits on consent. Mr. Miller contends that the act of putting an affiant to an
election is the suppression of evidence Por which his client is entitled to punitive damages. These
lasts fi~nn the basis of his amendment. There is nothing improper with asking affiants if'they are
prepared to stvtd behind an affidavit, An affiant must be prepared to face cross-examination on
tl~cir evidence. The amendments in relation to Mr. Kaufman's conduct are improper and irrelevant
to any cause of action. They should not Ue permitted by this Court.

3. As for the second part of this motion, the plaintiff seeks to amend the various statement ~f
claims to: (a} add a claim that the plaintiff owns copyright in all of the articles; {b) add a new cause
of action of [he circumvention of a technological protection measure {"!'PM") under section 41.1
of the CvPyrr'ght Act; (c) add a ciairn that the delendant's activities were for a commercial purpose;
(d) expand the claim to cover X11 articles ghat were available on Hlacklock's website during the
relevant time and not just the specific articles that were allegedly shared; (e) change the relief
sought, including adding new declarations, a permanent injunction, and changing its damages
claims to one where tltc plaintiff may elect either damages ar statutory damages. These
amendments, which were not brought ai the first opportunity, change the nature and substance of
the claim.

4. From the Attorney General's perspective, there are three categories of draft amct~dcd
statement of claims: (a) those for t~~hich the plaintiff is within [he limitation period and that are not
opposed, Frith the exception of amendments relating to Mr. Kaufman; (b) those for which the
plaintiff is cica~ly outside of the limitation pceiod f'or all amendments; and (c) those Ior which the
plaintiff is outside of the limitation period for some of the amendments.
3 1 i~
S. As it relates to the statcmc~~t of claims where the plaintiff is out of time on some or• all o£
the claims, the Attorney GencraJ makes the fallowing observations. Firstly, the 7~PM claims sue
grounded in a breach of a device to access copyright materials. They arc se~ar~te rind apart from
a claim of breach oi' copyright, which makes them new claims anchored on new facts. Where the
limitation ~eri~d has expired and the new cause of action is l~aseci an new facts, tlicrc is a
presumption of prejudice and harm. 'Phis presumption will be determinative, unless the party
seeking the a~nenc#ment can show that there are special circumstances that rebut it. The p~ainliil~
is unable to cx~lain why it waited more than two years after it was advised by Justice Barnes that
the Fznance claim could ~~ot sustain an amendment of a breach of a rl'1'M to amend their pleadings.
Not to mention that the ~lainti[I~ filed new statement al~ claims that never mentioned TPMs after
the Finance trial and after they were advised by Justice Bar~Scs that it was nvf f~~und in the Finance
pleading. `1'hc natter was clearly decided by Justice Barnes and it failed to act.

G. There have Ueen rn~my delays in all of these actions, laagely due to the plaintiff. It is not
in the interest of justice to allow any of these amendmc~Zts to the statement of claims which are
prescrihcd in time. The Attorney C7eneral h1s been and remains ready tc> proceed to trial. Any
matter that is prescribed in time should be refused by this Caurl,

PART I -- FACTS

A. 'Chc Plaintiffs ]7 Par~llc~ Actions fir Alleged Copyright Infrin~ernent

ct. Aefions described
7. Since June 2014, the plaintiff h1s brought seventeen 2~ara)Jcl actions for alleged ec~}?yright
infringement against various fccicral deparlmeilts and agencies before this Court. One of these, an
actio~~ against the Departrncnt of Pinance; ~ proceeded to trial and was dismissed in its eniirefy.z
Three other actions against fhe Canadian. ]~ood Inspection Agency (CT1A}, Public Works and
Government Services Canada (PWGSC}, ~tnd the Bank of Ca~iada sefiiled and were discontinued
o~~ consent.'

~ Court N'ilc No. T-1391-14.
z Plucklack'.s' Xeporler~ v Ccrr~vcla, 2016 ~'C 1255.
3 Court ~'iie Nos. 'I'-1234-15 and T-477-1,5.
8. Tl~e saune counsel for the Attorney Ueneral, Mr. Kaufman a~zd Ms. Sherhols, have had
can-iage of twelve of these actions, ten of which remain outstandi~~g and are described a5 follows:

T-2040-14: an aclian against the Canada Revenue Agency ("CKA"), started on 9 October
2014;

T-269-15: an action against tl~c Ca~iadian International llcvcl~pment Agency ("CTllA"),
started an 23 February 201. ,5;

• '~'-1085-15: a simplified action against the Competition Bureau of Canada ("Competition
J3ureau"), started on 29 June 2015;

T-1862-15: a simplified action a~;ai~lst Parlcs Canada, started o~i November 4, 2 15;

• T-2042-1 b: a simplilied action against Cnvironment and Clzmate Change Can~dd
("ECC'C"'}, started an Novemhcr 28, 2016;°

• T-1 7 7-17: an action against I lcaltl~ Canada, started on January 24, 2017;

• `1'-132-17: an action ~~;ainst h;mpioyrnent and Social llcvclopment Canada ("ESllC"),
started on January 26, 2017;

T-134-17: a simplified action against Financial Transactions and Reports Analysis Centre
of Canada. ("FINTIZAC"), started on January 26, 2017;

T-133-17: an action against Transport Canada, started oat January 2G, 2017; and,

T-943-17: an action a~a.insf the National fi;ncr~y Board, started on .1 unc 28, 2017.

9. The rcm~tinin~ three actions against federal lgencies, which have seFarate Iegal
representation, are as follows:

• "1'-897-15. a simplified action. against the Canaeiian Transportation Agency, startcci on
May 29; 201 S; and,

4 Uiven the stay, the pleadings hive not yet closed, so the plaintilC may amend this action as of
right. I Iowever, the ~unended statement of claim includes the a~ncndmcni with alle~;aticros against
opposing counsel, which the defendant submits is ianproper. If the defendant is successful cm this
issue in this motion, it submits that [his decision would apply In the ECC.0 action a~Zd the itnprc>per
amendment wclulci need to be struck.
5 ~ L

• T-1726-1.5: an action against the Library of Parliament, started on October 14, 2415;
and,

• T-1228-P7: an action against VIA Rail Canada Inc, started on August 8, 2417.

h. The ucti~ns rrricc~ similar allegations and issues of breach of c~~pyright

10. ALA o£ihe plaintiff's actions concern the same pattern of behaviour and raise the same core
issues. Specifically, I.he plaintiff ~~lleges that I.he defendant copied or distributed its articles without
its consent and in breach of its copyright. In all of the actions, save f«r T-2090-14, T-2042-Ib T-

132-17and 'I'-943-17 whcrc statutory damages were ciccted, the plaintiff claims damages in the
form of an "institutional" license. Including punitive damages, the amounts claimed ra~~gc from
$16, 470 to $115,155,

11. The defendants allege that the plaintiff employs a pattern of writing misleading or
inaccurate articles about an organisation, wiCh the expectation that these articles will be accessed
and shared internally. The plaintiff them rnalces Access to Inf~lrmalivn Acts requests for evidence
of distributio», sut~sec1tiently claiming disproportionate damages through speculative invoices,
demand letters, and litigation. The statements of defence raise the emerging doctrine of copyright
misuse, as well as fair dealing a~1d tl~c defence that the plaintiff does not c~wn the copyright in the
articles.

B. Litigation Histar~+

1.2. "i~ese actions have been the subject of several ~n~tions. On September l8, 2015; the
Attorney General brought z motion for, among other things, a further and better affidavit of
documents and to compel answers refused on discovery. Ma.darne Prothonotary Tabib granted this
m~tio~7, with costs. She remar(<cd that the plaintiff's• opposition tc7 the motion for production was
"troubling". The plaintiff's affidavit of documents was "inadequate and in ~~ccd of being redone"
and that "the plaintiff's ar~umenl and the way in which it chose to understand qucstioz~s or
construed questions was obtuse to the point of being obstructive."~ A mode o£obstrucfive conduct
that was also visible in the cress-examination of Mr. Korsl<i, held on November 13, 2018.

RSC, t98S, c A-l.
h Urdcrof Prothonotary "i'abib dated 2C (?ctober 2Q15 in'l'-1341-14, UMR, Tah lA, p 19-20.
6 ~ ~~

13. Un No~~cmbcr 2, 2015, the Attor~~cy Gcncral brought a motion to stay all of the actions
until the action against the nepartmei~.t of Finance, which was farthest along, was determinee~.
Prothonotary Tabib granted this motion, she described the plaintiff's proposal that all of the related
~clions proceed simultaneously as "nonsensical".~ The pi~intiff appealed this order, which was
d}smisseci with costs.$

a. This Court dismissed the Denartme~nt of Finance action with tests

14. 1'l~.e ]~epartrracnt of Finance action was tried over Svc days in Scptc►nher 2016.

15. In his opcnin~ statement, and for the fi rst time in any of the pre~ceedings, Mr. Hatneed
alleged that the Attorney General had circumvented a technological protection me~surc in breach
of section 41 0l' Che C~~pyrighl rlct. the Attorney General objected to this allegation that was not
pleaded and was not based can any of the pleaded iacis., lli~er reviewing the pleadings, Justice
}3arncs did not allow Blacklock's to advance these allegations because Lhey had not been plead:

There was an obligation fo plead the section and to plead its breach by the plaintiff Ind
in addition tc~ that; to plead the material facts which support the —which would
arguah~y suppc7rt the application c~f'section 41 to the case. S~ I'm not going to enleRain
an argument that there has been a breach of'section 41 of the Copyraghi ~ct.~

1G. ARer heariil~ all of the evidence, this Court dismissed the action in its entirety, fi nding that
there were "troubling aspects to Blacklock's business practices." A business model anchored on
dubious .journalism. S~ecitically, the trial judbe found that the Department of Finance h~td
"legitimate concer~~s aUout the fairness and accuracy of Mr. Korski's reportinb" ~Lnd that
"copyright should not be a device that serves to protect the press from accountability for its errors
and emissions."~~

l 7. rl'his Court awarded the Attorney General d<~~ible casts in the amount of $65,000. The tri11
judge noted that "the award of costs in this case should reflect the Court's concern with the

Order of Prothonotary Tabib dated Much 3, 2~1b in T-2090-14, DMR, `1'ab 11-3. '1'hc same order
wa.s granted in T-26~-15, T-477-15, T-745-15, 7'-897-15, '1'-1085-15, '1'-1234-15, T-1862-15, and
T-172b-15.
K 13facklock 's I~ep~~rt~r v Canada, 2416 1~'C; 7l 9, 1~MR, Tab 1 C.
`' "1'zanscript ti~c~m T-1391-14 dated 19 September ?416, DivIR, Tab 2, p 2 ~7-238.
t0 Blacklock's Rcp«r~er v CUnadu, 2016 FC 1255 at paras 34, 3G, DMK, Tab l l}, p 78, 80.
•7 ') '~
c:

litigation strategy" and that lie was "traublcd by the plaintiff's attcmpt to claim an cxccssivc
amount of damages" and "~3lacklock's usual approach which is to hwzt down, by Acccss to
Inform~ition Requests, alleged infringers and then demand compensation based on an unwarranted
and sell=serving assertion of indiscriminate ~~nd wide-spread inirin~emenl."~ ~ A practice that is
nothing more than copyright trolling. This decision was upheld by the Feder~~1 Court of Appeal,
which speciftcaily rclicd on Blacklocl<'s litigation strategy t~ support the high oasts award.~~

b. Procedure to determine next steps after the FinRnce Trial

18. The p~uties were ~mable to agree as to how the remaining actions should proceed after khe
Finance trial was determined and the stay on the remaining actions was lifted. As 1 result,
I3lacl<lock's and the Attorney Ucncral each hmu~ht a motion as t~ next ste~s.13

G'. Filacklocic's Tries to Prevent T'reelancers from Being Cross-Txrmined

19, In its response to the Attorne}r General's motion as to next steps, Blacklc~ck's filed
affidavits from freelance journalists ("freelancers"}, which were made exhibits to an assistant's
affidavit. Mr. Kaufman objected to the filing of the freelancers' affidavits in this way because it
shielded the freelancers from cross-examination.14

20. Qn .fuly l4 and 17, 2017, Mr. Kaufiil~an asked Mr. Hameed to confirm that Blaelcloek's
would either withdraw the affidavits of the fz-cclaa~cers or else malcc than available for cross-
exarnination. ' s Attaching as an exhibit to an affidavit a second affidavit in order to avoid cross-
examinati<m was improper.

a. Mr. Harneed advises that he is not represertti~cg thefreelancers

21. Cha ,fuly l7, 2017, Mr. I lamced wrote an email tc} the freelancers, carbon cc~pyinb Mr.
Kaulm~ui. He advised the freelancers that Mr. Kaufman had indicated that .he wanted to "speak to

~ j Blucklock's Repv~-ter ~~ {,crnada, 2~ 16 FC 1400 ~Zt. pass 9-10, DMR, Tab l P, p 93.
1z 13lucklock's~ Repo►•ter v Canada, 2017 PC;A 185, BIViR, Tab 1 G.
~~ rlfiidavii oC Kassandra Cormier affrmeci l ] C)ctoUcr 2U] 8 ("Cormier Affidavit") at para 16,
DMR, Tab 1, p b.
~ a },mail from Mr. Kaufman t<> Mr. ] lameeci dated 14 July 20] 8, DMR, Tab lO.
~s ('ormier aPFidavit at pass 23-26; UMR, Tab S, p 8-9.
g I_, J

examine [them]" and that Mr. Hameed was n~~t representing them, but that they could ask hiin
questions about the procedure car spea.ic to independent counsel_ Mr, I Iamced vn~ote that "the
process of cross-cxamizaation is not court nsa~~datcd or obligatory" ~.nd that he would "leave it to
Mr. Kaufman to contact [them] directly."16

22. Also, on Judy 17, 2017, Mr. Kaufman wrote to the freelv~cers acid corrected Mr. Hameed.
Mr. Kaufman stated that: "a~~ affidavit filed in a Court proceeding is subject to cross-exarninalion.
`Phis is a mandatory requirement (to be available for cross examination) if the affidavit is to be
used in the proceeding". Mr. Kaurm~tn gave the Iieelancers the option of withdrawing their
respective affidavit, failing which he would schedule cress-cxan~inations on September 7 and 8,
2OI7. 17 Mr. Kaufinan put them to an ciccti~n and was prepared to provide his consent to the
withdrawal of tl~e affidavits.

23. On ,iuly 26, 2017, Mr. llaniced wrote to the freelancers to advise them that he was aware
that Mr. Kaufman had put thcnz to an election and tfiat, if they agreed with the statements contained
in their affidavit, they were under no obligation to withdraw it. t$ Mr. Hameed was apprised ~f Mr.
Kaufman's communications and was afforded with every opportunity to express his views on all
procedural matters.

24. On August 3, 2017, Ms. Sherhals emailed Directions to Attend to the freelancers, Farm 9 t
of the Iederal Courts Rules.' Perm 91 eont~lins the following standard prescribed language:

Ir YOU PAIL TQ ATTEND OR REMAIN UNTIL THE END OF THIS
EXAMINATION, YOiJ MAY BE COMPELLED TO AT'C1;ND A'l~ YOLJIt Q1~VN
EXPENSE AND YOi1 MAY 13T: FOLJNU IN CON"I"N;M1''l~ (~H' C;~UK"!~,

2.5. On flubust 23, 2017, Mr. Korslci, Blacklock's principal, wrote t~ the freelancers and stated
that: "Kaufman in carrespondcncc refers to CON"1'~:MP'.[` C}l~ COURT in capitll letfers. Mister
Kaufman is not a TV district attorney, and you are not on trial."2°

~~ Email from Mr. iiameed to frcclanccrs dated 17 Juiy 2017,. emphasis added, 1)MR, Tab 1R.
~~ email from Mr. Ka~iimdn to freelancers dated 17 Tuiy 2017, DMIt, `f'ab ! S.
~ R email Isom Mr. Hameed to [ieelancers dated 2f~ July 2017, DMR; Tab 3 ~J.
~' l;.iz~ail from Ms. Sherhuls [o ii•eelancer ]ustin Ling doled 3 tlugust 2017, DMR, Tab 1 W.
zQ Na~~ail from Mz'_ Karslci to freelancers dated 23 August 20J.7, DMR., Tab 1X.
L li
9

26. That sane day, and in response to Mr. Korski's email, I~1r. Kauti»an wr~tc Mr. Ilamccd
stating that if Mr. H~uneed had any concerns, lie would like to hear them from him.21 At no timc
did Mr. Hameed raise any coi~ccrns with Mr. Kaufman's course of conduct.

h. After receiving independent legal advice, Mr. Smith wifhclraws his affidavit

27. On August 3t}, 2017, Mr. Smith, one of the freelancers, sent Mr. Korski a note requesting
that a lawyer he provided for his cross-cxaminatioi1.22

28. On SepCember 6, 20l 7, Mr, Smith advised Messrs. 1 Ia~nccd znd Kaufman that, after having
obtai~~cd independent Jcgal advice, he wanted to wilhdr~w his ~Zlidavit end that he did not want to
be a witness in this proceeding,23 When pal iv his election, Mr. Smith chose to avnid a crcass-
examination. The al~idlvil, however, was never ft~rmalIy withdrawn from the covert record.

29. Freelancers Kaven Baker-Voakes, Mark Buurrie, and Justin Ling were cross-examined nn
their affid~.vits.24 They were apprised of their right tc7 obtain legal advice hefore doing so.

34. '1'hc parties' motions ~s to next steps were heard on September 18, 2017 before Madame
Prothonotary Milczynski. Before Lhe hearing, Messrs Hameed and Kaufman discussed the
withdrawal of Mr. Smith's allidavit, and Me. Harneed agreed that IC COLIICI not he relied upon.
During the course o~'ar~;umeiit, Mr. Kaufman advised the Court that Mr. Smith ltad withdrawn hi.s
affidavit.Zs The Cc>urt was apprised of all matters.

31. At no time did Mr. 1 [amccd object to the fact that Ma'. Smith had elected to withdraw his
affidavit. Nor did Mr. Ilamecd ever raise any concerns or state that there had been anything
improper about Mr. Smith's wiihclrawal ofd his afliclavit.zG Mr. Kaufman put the affiants to an

Z ~ rmail fro»~z Mr. Kaufman to Mr. Hazneed dated 23 tlu~usi 2017, DMR, Tab 1 X.
~Z Canadaland article "'('hc Stra~igc Case of the Uttawa {)utlet that Sued its Own Freelancer",
Criss-examination of Tom Kc►rski on ]3 November 2018, lixhibit 11, Tab IA.
2S Email from 1i-eelancer Dale Smith dated b Septcmt~cr 2017, UMR, 'I~ab 1 Y.
24 Cormier aflidavit a~ para 37, DMR, Tab 1, p 1 l .
Z5 Cormier Affidavit al para 38, DMR, Tab 1, p 12.
2~' Cormier Affidavit at paz~as 39-4Q, DMR, Tab I , p 12; Transcript of 1 ~ September 2017 hearii~~,
llMlt,l~ab 1 AA.
io ~ ~ r~

election, either withdraw the affidavits, for which he was prc~ared to consent, or make themselves
available fi rcross-examination. 'Phis was completely appropriate.

l). The Ylai~tifl'Sucs Freelancer Dale Smith

32. On October l3, 2017, Blaciclock's brought an action against Mr. Smith in the Ontario
Superior Court.27 He brought another, similar action against Mr. Smith in this Curt on November
6, 2017. 28 The Statement of Claim in the h'cdcra] C:aurt action ~1legcs that:

Aro~~nd August 2Q17, Mr. Smith made repeated requests for payment from t11c
plaintiff: Following the plaintiff's refusal to pay, Mr. Smith cancelled the cross-
exainination nn the affidavit he pro~~idcd in the plaintiff's motion as to next steps.Zy

"~Mr, Smithy his acted in bad faith in the context of a Federal Court proceeding Uy
purporting to wilhdra.w a solemnly declared stalenzent ai[er the plainliir declined t~
meet ~Mr. Smith'sJ demands ror monetary payment".~°

• "[T]he action 1`iled in the Superior Court was necessitated by virtue of [Mr. Smith's]
deliberate attempt to frustrate proceedings in Federal Court in purporting t~ withdraw
an affidavit that he had swcarn".31

• "[G]iven ]zis erratic conduct, it is not clear whether [Mr. Smith] will attempt to ~ncc
again renebe ti•om previously sworn statements...[Mr. Smith] has acted in a manner
tantamount to can#empt".32

E. The Plaintiff Alleges Opposing Couttsel Acted Improperly

33. On January 1Q, 201$, Blacklock's changed solicitors and Mr. Scott Miller replaced Mr.
H~meed.

27 Statement of Claim in 131uckloek's Report v Dale Smith, Court l~ilc No 17-74245, Plaintiff's
Motican Record {"PMR"), Tab 21.
2R Statement ~I' Claim ii1 I3lacklock's Re~nrt v Dcrdc .Smith, Cnu~t File No T-169(1-l7 ("Smith
SOC"), PMR, Tab 2J. See also Can~daland article "The Strange Case of the Ottawa OuClet that
~ucd its Own Preel~ncer", Cross-ex~unination of Torn Koiski can 13 November 2018, Lxhibil 11.
29 Smith SOt: at pass l 8-23, 27-29, PMR., TaU 2J, 392-394.
~° Smith SOC at Para 32(j), PMR, 7'ab 2,f, p 395.
31 Smith SOC ai Marx 35, PMR, 'Cah 2J, p 39C.
?2 S~nit1~ SOC al par~i 36, PMR, Tab 2.1, p 396.
R. Blncklock's makes aCCegati~rns a~,rlllflSL opposing counsel in "Justice Deb'! Bullies
Reporters" nrticle

34. On Apri3 23, 218, Mr. Korski wrote an article for Black~ock's cntiticd ".lusticc Uep't
Bullies Rcportcrs" which reported thaf "~o]ne lawyer representing Allorney General Jody Wilson-
Raybould privately coached" writers to withdraw lheil- ~fiidavit in ~n "a~~~~~rcnt wit~icss l•~trn~~crin~
scheme." Blacklock's alleged that, by attaching a llircction to Attend, Form 91 of the Federal
Courts Rules, Ms. Sherhols "threatened reporters". Blacklock's publisher, Hc>lly Uoan, entailed
fhe article to Mr. Kaulman and Ms. ~herhols' employer and posted it, unlocked, a~ Blacklocic's
website.33

35. Mr. Korski admitted that he did not research his article. He did not look at the federal
C,ouYts Holes or Form 91 before writing his article alleging fhal Ms. Sherhols "threatened
reporters".34 He did t~.ot attribute the prescribed language to Farm 91, a Federal Court Lorm.

36. In additirnl to posting the "Justice Dept Bullies Reporters" article, in unlocked form where
the pubic could gain access, tl~c principals of Blacklocic's, Mr. Knrski and Ms. Uoan, made similar
allegations through social media az~d over an extended period of time. For example; Blacklock's
publisher, Ms. Uoan, tweeted "1Iow inspiring is this? lJoes witness tampering (a3JusliceC~nadaEN
count as hibh ethical standards or does the public service integrity code only apply tc~
technicians~~~~35 E'hc suggestion put forward was that counsel had en~a~ed in witness tampering

by putting the freelancers to an election.

G. Blacklock's counsel makes allc~>airons a~ruinst npposirig counsel

37. One of the amendments Mr. Miller seeks to m~~.ke in the cirafl amended pleadings includes
personal allegations against Mr. Kaufman; n~mcly that he engaged in witness tai~npering and the
suppression oi~ evidence. This allegation is grounded in a misundcrstanciing of the rules c>f

3i Blacklock's article Jr~.slice UeP't 13ullie,s Re~~orter.s dated 23 ~Lpril 2 18, DMR, Tab 11313;
(;ormicr affidavit ~t para 42, DMR, Tab 1, p 12.
3a Cross-examination or Tom ICorski oat 13 November 2018, p 28, q 8Z — p 32, q 97.
35 Cross-examination of Torn Korski on 13 November 2018, exhibit 8: 1Io11y Doan Twitter
account; Cross-examination of'I'onl Korski nn 13 November 2018, exhibit A: Facebook page post
that Holly Loan's twitter account ~inlcs to; Tah lA.
• ~~
1Z < <~

proced~ire and professional conduct. This amendment, which has no bearing on the claim, is
alleged to support the plaintiff s claim for punitive damabes against the individual defendants.

38. Counsel for the Aitomey General objected iv this amendment, staling that it was improper
and irrelevant to the claim, In response, It~ir. Miller advised that Blacl<lock's "revisited" the
paragraph and will expand it to include the names of five freelancers and not just Mr. Smith,3b

39. As a result, Mr. Miller now seeks Lo add the following paragraph to all of the draft
pleadings, ``The Delendant's [legal] agent improperly notified Alex Binkley, Kaven Baker-
Voakcs, llalc Smith, Mark Bourric and Justin ling that thcy could withdraw cviciencc regarding
Hlacklock's ~wncrship of azticics which he authored."37 T11is allegation relates to the conduct of
the litigltion and does nothing to support the cause of action.

4Q. In a Juiy 19, 2018 letter to the Court, Mr. Miller went further in his allegations. He accused
Mr. Kaufman of breaching the RuJ.es of Professional. C'onducl and subverting or suppressing
evidence or procuring a witness to stay oLiC of the way when he advised the fi•eelancers cif their
right to withdraw .heir affidavit. 38 In a respondinb letter tc~ the Court, Mr. KdLifman wrote that
these allegations were baseless and irrelevant, and that the amendment was "an abuse of process
as it is made i-br the sole pur~~c~se of having counsel removed fi~orn these files."39

41. Mr. Miller's writleii submissions allege that Mr. Kaulinan suppressed evidence and
cnco~u•ag~d the Suppression of cvidcnce.49 '1'hesc submissions also state that "Mr, K~tuftnan's
repeated invitation that M.r. Smith was `always fret to withdraw (l~is~ affidavit' is in contravention
of the Rules of Professiorutl CrJnclucl"4 ~ .

~~ Cross-examination of Torn Korski ~n 13 November• 2018, exhibit 3: Mr. Miller's letter to the
Court dated 1) July 218, Tab lA.
'~ Por example, see Statement of t:laim in '1'-117-17 at pars. 35{m}, PMR, Tab lA; Cross-
cxami»atian of'l.'om Korski on 13 No~embcr 2018, exhibit 3;' Mr. Millcr'S letter to the C;aurt dated
19 .iuly 201 R.
;$ Cross-exaiilinatic>n cif Tom Korslci ~>n 13 November 2018, exhibit 3: Mr. Miller's letter t~ the
Court dated 19 July 2Q18.
39 Mr. Kaufiinail's letter to the Court dltecl July i9, 2018, Court Pile Nos. T-2090-14 and others.
~0 P1lintiff5 written submissiozis at p 486-487,
a ~ Plaintiffs written submissions at p 499.
~~
13

~+'. Outcome of the Mat~ans As to Next Steps

42. On October 24, 2017, the Court issued a decision nn the parties' motions as to next steps.
The C:~urt detcr~nined that:

examinations for discovc~y in the Finance action ('1~-1341-14) will apply in all cases;

additioa~al discoveries may be conducted by way of written interrogatories, with
perhaps limited oral fallow-up where appropriate end necessary;

• the majority of cases are simplified actions;

• the shay will be lilted on all proceedings and, as the m~ttiers progress, they will be
coordinated. such that they mdy be a>nsUlidated oi- directed to be heard consecutively
c>r at the same time.42

43. A decision as to how the matters are tc> progress was made a~ a November 23, 201? ease
managcxncnt conference. Specifically:

atrial for the si~l~Plified actions wxs to he scheduled for eight days before Prothonotary
Aaito sometime during the first three weeks of October, 2418;~z ~.nd,

a pre-trial conference in the regul~n- actions was scheduled Ior jtily 27, 2018 `~a

G. Blxckloci:'s Mt~tiun to Amend

44. After Blacklock's retained new counsel, the simplified ~.ctions did ~aot proceed to trial and
the ire-iri~l cc»7fei•ence in the regular actions was cancelled. Inste~.d, Blackloek's sou~hl to
sul}stantially change its claims anci the actions through this motion brou~;llt on August 27, 2 18. If
granted, this 2notion would bring the actions back to the pleadings stage.

4Z Order of Prothanocary Milczynski dated 24 Uctobcr 20] 7 in `['-2Q90-14; "1~-269-15; '1'-477-15;
't-1085-1.5; T-12:14-15; 'I'-1 862-15; `.0-2U42-16; '1'-t 17-17; '1'-132-17; "1'-133-17; "1'-134-17.
43 ~~•_~
~~S_l S; '1'-269-] 5; '1'-897-15; '1'-134-17; '1'-1X62-] 5. Sec; email ii-c~m Ms. Sherhols to alI
counsel dated 23 November 2017, PMR, Tali 2X.
`~4 T-2090-14; T-117-17; T-132-17; T-133-17; T-443-17. See email from Ms, Sherhols to all
counsel dated 23 November 2017, PMR, T~6 2X,
7
14

~5. In aciditi~n to the amendment including allegations against opposing counsel, the plaintiff
sccks to ~nakc the following amendments in all of the actions:

• add a claim that the plaintiff awns copyright in all of the articles;

add the new cause of actiolZ of the circumvention ora iechnola~ieal protection measure
("TPM") under section 41.1 of the Copyri~,~ht 1~c1;

• add a claim that the defend~uii's activities were for a commercial purpose;

• expend the claim to cover ill articles that were available nn Blaekloeic's website during
the relevant time and not_just the specific artic]cs that wcrc ~1lcgedly shared;

• change the relief sought, including addilzg new dccl~trations, a permanent injui~ctio~l,
and changing its damages claims to one where the plaintiff may elect citlicr damages
or statutory damages.

The addition of the new TPM cause of action and the amendments to the relief sought, ii~~r~nted,
will require all of the simplified actions to be converted t.o reb~~lar ~cti~ns. The plainl.ill~ also seeks
to reopen ~liseoveries in the actions ~t~;ainst CTDA (T-2C9- I S), Competition Bureau (T-897-15},
and the Canadian Transport Agency (T-8~?7- l 5)_

PART II —ISSUES

46. 'Phis mntion raises two issues:

Whether the plaintifi-'s amendment related to punitive damages and tl~e allegations against
o~~~osing counsel is i~npr~per and thus should ziot be allowed.

ii. Whether tlac plaintiff's remaining amendments should be allowed.

NAR7' Il] — AItGUMT~NT

A. The Plaintiffs Personal Attacks nn Qpposin~ Cc~unscl are Irn~ro~er end Not a Basis
to Amend the Pleadings

47. It is impt~oper for counsel to allege a Ureacl~ of the Ruler of 1'rvressiorrcrl Conduct to gain
strategic advanta~c in litigation, especially in a context where the allegation is Uaseless.45 1'lie

`~5 t'elarre.ce Canada Inc v Murr~ray Uem~~lilion Cor1~, 2U0( ~{.'L 36 at para 5(~; Defendant's I-3ook
o#~1~uth~rities ("DBOA"}, "I'ah 8.
15 ~ J (`t1
amendments in relation to the conduct of Mr. Kaufman rind 1~r which the plaintiff sccks punitive
damages, sue improper, irrcicvant to any cause of action, and should nat be permittcd by this Cottrt.

48. Mr. Miller and his client have made serious allegations ofmisconciuct against Mr. I{aufman
and Ms. Sherhols, bath officez•s of this Co~~rl. The allegations have heen numerous, However, the
mast egregious ones, which now Iorm the hasis of the request for the amendment, are the
allegations that Mr. Kaufman tampered and suppressed evidence by putting the freelancers to an
election, namely; (sl) withdraw their affidavits on consent or (b) m~llce themselves available for
cross-examination.

49. These serious allegations were first made by Mr. Miller in a letter to the Court, datcci July
19, 2418, where he communicated that Mr. Kaufman had breached his professional obligations
under• the Law Society of Ontario: "...it is inappropriaEe to advise a witness that tl~cy could simply
withdraw an affidavit to avoid crass-examination. Fir example, the Rules of Prufessivraal Conduct
{R S.:i-1}provide that a lawyer should take care «ot to subvert or suppress 1ny evidence car procure
a witness to stay out oi~ the way_ E~~ccnu~a~in~; a ~vimess to withdraw an al~idavit is a direct violation
of R5.3-1."~~

50. "l~hc request Uy Mr. Kaufman to cross-exami~lc the freelancers came as a result ~f Mr.
la~~~eed, appending a series of afitidavits from freelancers to an affdavif from his assistant, This
was a deliberate ~ltlernpi tc> shelter evidence from. cross-examination. When Mr. Kaufman asked to
cross-examine the fi~eclanccrs, which was well within his right, plaintiff's courtsel left them on
their own and directed Mr. K~tufm~m to eontacC them directly. At all tinZes, Mr. Hameed was
apprised tzf the comrnunicatinns with the freelancers and of Mr. Kaufman's request t~ have them
attend cross-examination. {one sought independent legal advice a~1c~ suhsequently requested to
withdraw his af~idavit.`~' Mr. Hameed neither complained nor resisted u~y attempt by Mr.
Kaufinau~ to cross-examine the I'reela«cers.

Sl. Mr. Kaurrn~n but each of the freelancers to an election. He was prepared to offer his
consent l~ have the at#idavits withdrawn or, in the alternative, he was prepared t~ conduct a cross-

4~ Letter ii•om Mr. Miller to the C'aurt dated l.9 July 2018, emE~hasis added, PMIt, Tab 2AA.
~' t;mail from Mr. Sanity to Messrs Kaufman and f iameed dated 6 September 2017, DMIt, 'lab
1 Y.
16 j

examination.. At no time did Mr. Kaufman threaten any of the iieelancers. "Co the contrary, he
directed tJzein to the Law Society of Ontario where they could get legal assistance in evaluating
their legal options and advised the court of the steps that he had taken to cross-examine.48 When
one of the freelancers enquired about the possibility of withdrawing his arfidavit, I~1r. Kaufman
advised hi~n that if he chase to do that he would have to advise Blackloek's. There was cc~mp(ete
transparency.4~

52. Mr. Miller is wrong to suggest that an affidavit may not be withdrawn on consent. An
affidavit may be withdrawn al any tune with the opposing parfy's consent or with leave of the
court. 50 There is nolhin~ im~7roper wi.tli this request nor does it coiistitutc suppression or tampering
~f evidence as Mr. Miller cantc~tds. This very point was rnadc by former Justice SCrayer in
I3J7AIi1GS;6Y V C,~QpZQLtQ:

The respondents elected to withdraw Lhe affidavit and 7 perznittcd them to do so in spite
oCcertain objcctic~ns by counsel for the a~pFicant. While 1 am aware that in some other
courts it has been held that an ~ffidavil once f led nn a motion c~nnoi be withdrawn, I
could find no reason in principle why this should be so. It appears tome that the closer
analogy is to that of a. respondent deciding not to call a witness where vr'>>a voce
evidence is being tlken. As l~.r as 1 am concerned the affidavit never became part of
the evidence. 'The respondents cannot, of course, have it both ways: I cannot take into
account a~7y evidence in support oftheir case which this lffidavit might have afForded
end c1n draw any appropriate irifcrcnces from the lbsence oi~ such evidenca5 ~

53. The same point was made in Gr~rdan v LSlarr, where the Court held that ~n ~Iiidavit, ancc
served, cannot be withdrawn without the coilscnt of the other side or leave c>f the court.sZ '1'hcrc is
therefore nolhinb impro~cr in giving a witness the election c>f withdrawing aia affidavit on consent.

54. The iieelai~cers were fi•ec to either accept or reject the offer made by Mr. ICaufm~n, in the
case o[~ the latter they were required to attend across-examination. "Phis was explained by Mr.
Hamecci in an eYnail to them. With one exception, all decided to attend a ceoss-examination. As ~t

4$ For ex~m~le, sec 1:n~1it from Mr. Kaufman to Mr. Smith dated 3~ August 20l 7, PMR, Tah 211.
4`' Por example; see }:mail from Mr. Klulni~m to Mr. Ling dated 21 July 2017, T}MR, Tab 1V.
s~~ Services Fir~arrciers Element v 185142 On1.rr.rio Inc., 2017 UNSC 5224 at para 2Z, DL3vA, Tab
l 8.
51 13hatna~er ►~ C'un~xd~r., ~198b] 2 FC 3 at Para t0, I)f~t)A, Tab 5.
52 Gordan v .Slum, ~ 20{}7 (t).f Nc~ 2062 (ON SC} at pars 26,. Ut~OA., 'I'~tb 14.
~7 ~
relates to the one exception, Mr. Smith made the dccisi~n t~ withdraw the aff davit after he
received independent legal advice. "i'hc affidavit, howcvcr, was ncvcr withdrawn from the court
file. There was nn adverse consequence on the proceedings or the evidence given that, with one
exception, all of the fxcelancers stood by their evidence.

55. 'I'l~c allcgatio~i that the offer made by Mr. Kaufman consiicutes a suppression oi~ evidence
contrary to the Rules of Professr~nul G~nduct is wrong, In addition, it could never be used to flame
a claim for punitive d~unages against Mr. Kautnian's clients

Sb, There is a clear distinction between conduct that is actionable pep se anc~ conduct that
relates to litigation which may go to casts, even cc7sts a~ainsf co~msel }personally. Counsel conduct
that goes tc~ costs should nit form part of a claim, but rather it should be left to tl~e court to assess
upon the cornpletian of'thc trial, It is irrelevant to the cause of action. 7~iis very point was made
by .lusticc ficaudoin in Ueographic Reso~at~ces Integruled Dcrlu Solutaotas Llcl. v Peterson, where
he held that that the allegation of litigation misconduct is relevant la a cost analysis, but not for
the purposes of assessing art amendment for punitive danla~es in a claim. The conduct of counsel
does not go to the merits of the claim.53

57. 'l'hc same conclusion was. reached in C'nurville v Ilarr~ison, where the court held that a
proposed amendment io a pleadinb anchored on Che conduct cif counsel, for which punitive
damages were sough[, wits improper and irrelevant to the claim. The court noted that there is a
prevision in the rules of practice for penalising solicitors for improper conduct, sometimes by the
aw~rci of s~lieitor-client costs,54 but an amendment far ~wiitive damages is not the appropriate
response.SS Mr. Kaufman is counsel and not a party to the proceeding.

B. Most cif tie Plaintiffs Amendments Are Out of Time and Should Nat be Allowed

S8. "l.'hcre are tluee categories of draft amended statements of claim:

~. those i'or which the plaintiff is within the limitation period and that are not opposed,
with the excepli~n of amendments relalin~ io Mr. Kaufman;

53 (;end,>ral~hic Re.rnurccs lntegraded J)ata Snlr~lion,s I,J.d v 1'eter,ron, 201 S
()NSG 46S$ at para S3,
DBOA, Tab l3.
54 In the Iederul Caurl,~~ Rules, see Ttule 404
s5 C'ouri~ifle v Ilcr.~•l~isr~n, 1998 C~•sweliOnl X482 at para 42, DB~A, Tab
10.
18 ~ ✓ .~

b. those for which the plaintiff is clearly outside of the limitation period for all
amendments; and,

c~. those for which the. plaintiff is outside of the limitation period i'or some of the
amendrnenfs.

a. Amendrrtenls are within the limit~linre perior~

59. The Iimilation period has not yet expired for NES (T-943-17) or FINTRAC (T-134-17).
Given this, the defendant only disputes the aniendn~ents changing how the defendant was named
and the improper amendment involving allegations against opposing counsel.

l~. All amenrimetrts are clearly outside of the limitation perio~!

50. The plaintiff is clearly out of timc in the fallowing five actions: CPA (T-209 -14);
Competition Bureau (T-1085-15); CIDA {T-269-IS}; ESDC (T-132-17); and, Parks Canada (T-
1862-15}, As a result, none of these amendments should be allowed.

CRA, Competition Bureau~e117C{ C'IUA

61. CRA, Competition Bureau, and CII~A are gut of time hosed on the date of the original
statement of claim alone. However, in all of the draft amended pleadings, the plaintiff admits that
it became aware of the alleged breach of copyright and TPM the day it received the response 10 its
AT'IP request. Given this, the plainti#f is also out of time for ESDC.

Tile Date the nri~in.~l naie ATIP t•i•spt►nsc Dz~te limit~ticyn
tiC)C' ~ti~:t, issur~i ~~.~ti rrrci~~rcl E~crio~i ex~~ireel

CRA, T-2090-14, 9 October 2414 16 May 2 ~ 14 16 NFay 2Q 17
PMR, Tab 1P
(Draft Amended SOC,
para 13 C}
CIDA, T-269-15, 23 Feb 2~15 3 flpril 201 ~4 3 Apri12017
PMR, Tab 1H
{Draft Amended SQC,
ara 8D}
Competition Bureau, T- 1085, 29 June 2415 27 Febr~iary 2015 27 February 201 S
PMR, Tab 1 E
(Draft Amcr~dcd S~JC,
ara 12)
ESDC, T-132-17, 2b .lanuary 2017 ~0 October 2014 30 October 2017
PMR, Tab 1 D
'T
19 ~ f t~

(llraft AiT~cnded SOC,
~a.ra 8I}

62. The plaintift's attempt to `stop the clock' on the limitations gerioc~ iii the Competition
Bureau acEion is without foundation.' There is no evidence on the record of any tolling agreement
or ocher arrangement indicating that the parties agreed that the limitation period was varied in any
way. This is an imPrc~per and w~supporteci allegation. 17ather, the evidence shows that plaintiffls
counsel in#cndcd to bring a motion to amend, but ciclaycd in dc►ing so.57 Moreover, as indicated
below, the plaintiff had numerous opportunities to amend its pleadings before the limitation
periods expired, but made a strategic decision not to cla so.

Parks Canada

~3, The plaintiff is also out e~f time for Packs Canada. On cross-examination, Mr. Korski
admitted that as of .luly 2, 20l 4, J3lacklock.'s knew that Parks Canada had a Rlacklock's Reporter
Level subscription.5" Given this, the li~nitatian pez•iod in that acti.an expired an .1uly 2, ?Ol 7. "[1~is
claim is Elsa prescribed.

c'. Sn►afe r~rnencl~te~ts ure virtsitle lie titrre period

b4. Por the two rcrnain.ing actions against the Attorney tTcncral, I lcalth C~u7ada ('1'-117-17)5`'
and Transport Canada (T-133-17), 0 the plaintil'£is out oI'time for same amendments, but. not all.

Health Canada '

&S. Tn Heaith Canada, the plaintifChas pleaded an entire new claim in an attempt to circumvent:
the limitation period on other events that arc cicaz-ly prescribed in time. 'I'hc original statcmc~it

5~' lilacklock's W'rittc~~ Rcprescntations at paras ]4-16, E'MR, "I~ab 3, p 4$0.
y~ [,cttcr from Alexanclrc K~ui-'m~3~z tc~ the N~deral Court in T-2090-14 and others dated 30 I~~ay
241$.
5$ Cross-exacnin~ition of Ton1 Itorski on 13 No~~ember 2018, alp 9~4, lines 4-11; Crass-eYaminatiun
oi~ Tum Korski on 13 November 2U18, exhibit 13: ~rnail exchange between Holly Doan and
Andrew Campbell dated 2 Juty 2U 14, Tab 1 A.
5`1 ~'M R, ' l'~tU i A.
r,° 1'MR, 'l~al} l Ci.
2~ T J~
referred to two subscriptions (items 1 and 2); however, the draft amended statement of claim refers
to two new subscriptions (items 3 and 4).

~~ri~scripti~rt i Rrfe~~red t~~ ►n U.tte ATt~' ~•rs~~{~risc 1).~tc lin~il.►lio~i
ti~~:~~ r~~eei~eel peri~~ei ex~fi~-e~l

Purchased oti 4 Tuly 2t)13 Yes 121vIay 2f~ 14 12 Mav 2017
1 (Draft Amended SAC, para (Draft Amended
8) SOC, para 15)
Purchased an 1~ July 2U1~ ~'~eS l 0 August 201 S 10 August 2018
2 (Draft Amcndcd SOC, Para (Draft Amended
12B) SOC, para 15}
Purchased on 10 February -- ~ Na l4 December 2014 14 December 2017
.~ 2Q14
(Draft Amended
{Drat} Amended SOC, para. SOC, para 15A)
12A}
Purchased on 28 January No 27 March 2017 Within litnitatior~
~ 2016 period
(Uraft Amended
(Draft Amended SOC, para SOC, Para. l ~ A}
l 2 K}

66. The plaintiff is clearly outside of the limitation period for subscriptions 1 through 3. None
of the amendments should be allowed in so far as they relate to these subscri~~tions. lndccd, the
p3aintiff' should i1c~t be allowed to a~nerid its pleading to add subscription 3 at all since it is well
outside the limitation period to do so.

67. 'I'hc limitation peri~ci has not yet expired for subscription 4. However, the plainiitf cannot
attempt to use this subscription to `backdate' the limitation period for any claims related to
subscriptions I to 3. This is exactly what it is attempting to do. if the plaintiff wants to make a
claim rebated to sulascription 4, it needs to either bring a new action ar recast its current action, sa
the amencjments only apply this subscription. As it stands, the amended pleading is unaccc}~table,

Transport Lanada
68. For Transport Canada, the plaintiff has plead that it received two responses to .TIP
requests: tS~e first on August 22, 2U 14 and the second on C}ctober 1 S, 2015. He pleads that be
became aware of the defendant's wrongful actions, including the alleged circumvention of TPM,
21
1 :~ 6

on those dates.' The limitation period for any claims arising out of the first ATIP response expired
on August 22, 2017. As a result, the plaintiff should not be allowed to make any ~unendments in
relation to the first A"l'I.P response. .

69. The plaintiff is within the limitation period for the second ATIP response. If it wishes tv
make any ame~lc~ments in relation to that ATIP response, it will need to recast its pleading, so that
none of those amendments apply io the Iirst .1TIP response. As it stands, die amended pleading es
unacceptable.

C. The Plaintiff Must establish Lxce~tional Circumstances Justifying the Amendments

7(}. Whcrc the limitation period has expired, Rule 201 ofi the Federal Gv.ur~.s Rules provides
that a party ~xaay be granted Ieave to mend a pleading to add a new cause of action, "il~ the nc:w
cause of action arises out of substantially the same facts as a cause of action in respect of which
the party seeking the amendment has already claimed relief in the action." As they stand, the
claims do nc>t encompass sufficient facts to suppoa~ a new TPM claim. A TPM claim relates to [he
circumvention of'the device that is intended to protect the materials that are subject to copyright,
which is separate and apart from the copyright itself.

7I . However, where the limitation period has expired and the new cause of action is based on
new facts, there is a presumption of prejudice and harm. This presumption will be detezminative
unless the party seeking the amendment can show that there are special circumstances that rebut
it.hz

72. This presumption preserves the purpose aI limitation periods, which gives defendants
certainty as Cc~ the case they have to meet and assurances that they will ~aot be held to acco~int for
ancient obligations and claims. Similarly, l~mitltio~a periods are an incentive far p.ainliffs to act
diligently and not "sleep on their rights".6~

~'~ llraft Amended SUC T-133-17 al para 4P, PMR, Tab IG.
`i2 Prc~nrir~ l~irecl lrtc ~~ Yendir•ec! .lnc, 2018 PC 1081 {~=Propc~rio") at para 3Q, DBOA, Tab 16,
citing Frnhlick v 1'Inkerton Canada l.iort~ted (20f)$}, 88 (.)K (3d) 4fl1 (C'A} {"I'rohlack"), DBOA,
Tab l2.
~'; f'r~nhlick. at para 18, DBOA, Tab 12.
zz

73. 7n assessing whether the presumption has been rebuiled; the Cc~ur~ may consider "the
timeliness of the motion to a~nend...ihe extent to which the proposed amendil~ei~ts would delay
the expeditious trial of the mailer; the extent to which a position taken originally by one party has
led another party to f~]]ow a course cif action in the litigatio~a".64 This list of factors is not
exhaustive and nc~ single factor is determinative. "Ultimately it boils down to a consideration car
simple fairness, c~mm~n sense and the i~iterest that the courts have justice be done."6$

i. Limitation Periods Expired a►~rl the New Causes r~Action are Based o►~ New F~rcts
74, The amendments the }plaintiff seeks to ~nakc arc substantial, in~oJ~ing new causes of action
based on new facts. 1f' allc>wec~, these amendments substantially change the issues between the
parties and the n~turc of the claims. Por example, fhe unauthorised distributic3n of copyrighted
material is an entirely different issue and factual situation than the circumvention of a TPM. One
relates to copyright and the other relates tc} the devices that are intended to control access to the
materials that are subject to co~ayri~;ht. As a result; to support the new cause of action, the plaintiff
had to plead al] new material facts: the existence of a "['1'M, that the TPM used is effective,b~ that
the TPM used was authorized by the copyright owner, what constitutes circumvention of the TPM,
how it was allegedly circu~nvcntcd and by whom, anti the resulting damages. This is all new end
has little to do with the allegation of breach of copyright per se.

75. Similarly, the new claims that the plaintiff owns co~yri~ht in all of the articles auci lh~t the
defendant's activities were for a commercial purpose are laclual themselves end thus necessarily
rcc~uire pleading all new facts.

76. 'l.'lie plaintiff does not only seek ~o add new facts and causes cif action, it also seeks to strike
several admissions the }plaintiff has made. '1'hc plaintiff has provided no expl~talation as to why it
seeks to withdraw these admissions ztow, ~''

G4 A~~olex !nc v Wellcome l~'vunc~arion 1imi~cld, 2009 1~C: 449 at pars ] 6, DF30A, T~t~ 3, citing
Cund~-c~l Itd v C'ancrcta (l 994] 1 I~C 3 (C;A}, llI3UE1. "I'ab 7.
~'s Continental Bank Lea.vin~r ('nrporatinn el al u %he Queen, (1993), 93 I)TC {"I'CC'), p 302,
DBOA, Tab 9.
«' A rec~tyirement of a TPM is that it is efl.ective. The plaintiff has f~iiled to plead this clement or
tic rn~tcrial facts that arc alleged to support il.
G7
:l~L'1'~I( cC'~ C'rl. /nc~ v A~~~~~e,~- Inc, 2O03 1~CA X88 <~t pass 31-32, DI30A, Tab 1 S.
23 ~ .1

ii. Nn Exceptia~al Crrcumstunees Justifying the Amendments
77. Even if the substantive amcndmcnts sc~ubhi arose out of the samc facts, the plaintiff has
failed to meet its ~urdeil tc~ show chat there arc special circumstances that rebut the presuznption of
harm end prejudice.

The plaintiff knew it must amend its p.lcadin~s_. but only sought to do so at this late sta~c

78. The pJaintif~s 1<nc~wledge of the TPM issue ai d its failure to acl Ior a two year period is a
relevant consideration. As of September 19, 2016, when Mr. Hamccd made his opening statement
in the Finance trial, the plai~~tiff knew that, iI~ it wanted to rely on the ~1'i'M cause of action, it had
to amend its pleadings. Yet, it look no action for two years. The plaintiff did not sack to amend its
existing plcadings~g car plead the TPM cause ~f action in any of the seven pleadings it subsec~ucntly
illed.fi9

?9. Moreover, the plaintiff was aware of the '1'YM cause of action grid that Phis cause of action
was available to plead a year before the Finance trzal. "['hc plaintiff relied on the TPM issue and
section 41.1 in its small claims curt action against the Canadian Vintners Association, which was
heard on March 3l, 2015 and May C, 2015. A decision in that case; including; on the TPM issue,
was rendered on October 16, 2015.70

80. Similarly, the plaizltiff always knew the issue of copyright ownership and assib7r►ment was
in issue. On December 1 ?, 20J 5, the defendant crass-examined several of E31aci<lock's i'reelancers
~n the issue of whether they ha.d assigned tl~►cir copyright to Blacklock's pursuant to subsection
13(4) of the Copyright .4ct. As of January ] 1, 2016, the defend~~.ni started pleading that the
copyright in the relewtnt articles had not heen ~Zssigneci to the plaintiff,' Again, the plaintiff took
no action. It chid nc~l address lliis issue in any of the Iive pleadings it subsequently filed.72

Gg Fir example, see: Parks C~u-►ada ('l'-1852-15}, Competition Bureau ~'1'-10$5-1 5), CRA {T-2Q90-
14}, CIDn (T-269-15}, PMR, ~rahs i c, E, F, and H, respectively.
~~ Fc~r exvnple, see: Health Canada (T-117-17}, NAB {"I~-943-17), F.SI3C (T-132-17), Transport
Canada {T-133-17), I~IN`1'RAC (T-134-17), PMR, Taus 1 A, B, ll, G, and I, respectively.
7° 131acklc~ck's Izeporter v (~arrudiarr Vintners Rssocicrtinn, 2015 CanL[I G5885 (ON SCSM},
I7~3UA, '1'ah (i.
~~ Statement of defence in the Fortes (:anada action, T-1862-15.
7z l~ealth Canada {T-117-17), N1-:t3 ("1'-9~3-17}, ESDC (T-132-17), 'l'ransport C'a~~~ida (T-133-17),
I'INTRl~C (T-134-17}, 1'Mlt, '1'abs lA, Q, D, U, and J, respcctively.
24 ~ .J

81. As l'<~r the other new facts and claims—That the defendant's activities wcrc for a
commercial purpose, expanding the claim to cover all articles that we're available on ~3la~kJock's
wcbsitc, a»d cl anging the relief to cane where the plai~tift may elect either damages or statutory
damages—they ~tll could ha~~c and should have heen plead in the origin<<1 statements ol~claim.

`l~hc amendments would result in prejudice that would not he compensable by costs or an
adiounlmcnt

82. Allowing these long ticlaycd amendments would nit ~c in the interests of~ justice or
fairness. It would prejudice the defendant in a way that could not be addressed by costs or an
adjournment, which would create further dela.y.7;

83. This Court has repeatedly expressed co~icern about the pla.intiffls litigation strategy and
conduct.74 'l,hc plaintiff has acted in ways tht~t are "obtuse to the point of being obstructive".75 It
attempts tc~ "rcc~ver dispraportic>nate damages without any apparent consideration to the 1eg11
merits of the claim or to the costs that it im~oscd an the taxpayers of Canada_"'~

84, bringing these substantial ame«dments at this late state is consistent with this behaviflr.
The Court hack provided the parties with a timeline whereby all of the simplified actions would
have proceeded is trial by now a~~d the rc~,ular actions would have had apre-trial conference and
either settled ar set down for lrial.~~ However, by virtue of this motion, none of the rcmainin~ ten
actions abainst the ~itorney General have advanced. Indeed, if the amc»dmcnts arc allowcci, the
parties will be back at the pleadings si~~;e.

85, Prior to this motion, the defendant had a ]egitini~te expectation lh~i this litigation would
come to an end ~u~d the delays caused by tl2csc late amendments i-rusizale the interests o£ justice.

73 ,4polex Inc v Shire Cunudc, Inc, 2011 PC 1 159 at pass 14-24, DI3(JA, `l.'ab 4,
~`~ For example, see; Order of Prothonotary Tabib dated 2G Uctobcr 2015 in 'l'-1391-1 4, I~MIt, Tab
lA, p 19-20; Order or Prothonotary Tabib dated 3 M~trcl~ 2016 in '1'-18b2-15, DMIt, "1'ab IB, p 28;
13luckl~~ck's Reporter v Canada, 201 E~ E~ C; l 4(}U at para 7, I)M~Z, 'Cab 1 F, p 92; I3lUciclocic'.s Re~x~rre~
v Canad~r, 2 17 I~CA l SS at pars 7, 1)Mlt,'I'ab 1 CT, p 103.
75 I~or example, sec; Order of Prothon<~tary Tabib d~ited 26 October 2015 in T-1397-14, DMR,1'ab
1 A, p 19.
~~ Blacklrlck's Reporter v Ccrncrclu, 2016 PC 1400 at para 7, DMR, Tab l h, p 92.
77 Email 1`rom Ms. Sherhols to all counsel dated 23 Novcmbci• 2017; l'Mlt, '1'~h 2X,
z5 1 ~'~ ~
1'hrs injustice is compounded by the nurnUer of actions involved. The resulting prejudice, which
would apply to all ten actions, includzs:

• The defendant will have diffictilly obtaining evidence relevant to the proposed amendment,
specifically:

witnesses may no loner be available and, even if they are, they would have !o testify
aboi►t events Thal occurred several years ado; and,

. given the extent and substantial nature crf the a~ncndmcnts, new cvicicncc may need to
he Prodttccd and key evidence may now be lost.~x

7 lad these new claims been dead in tJ1c original statements of claims, they would have led
tl~c defendant to follow a different course of action in the litigation.

• The defendant will have to obtain expert evidence to respond to the new causes cif action,
greatly increasing the costs, time, and complexity of the litigation.

86. The plaintii't's amendments create further prejudice by requiring all of~ the simplified
proceedings to he c~nvcrtcd into regular actions, tllercby increasing the procedural complexity and
costs associated with defending these actions. The effect of this is evident by the plaintiff's request
tier additional discovery in CTI3A {'1'-269-15} and Competition Bureau ("I'-1085-1 S).

87. The Plaintiffs request for additional discovery is made notwithstanding this Court's order
that examinations for discovery in the 1-'inancc action (`l~-1391-14) will apply in all matters and
that any additio:ial discoveries is to be conducted by way of written interrogatories, ~~nless oral-
follow-up is necessary. 79 This Order was made to efficiently manage the thirteen related action
and to allow them to proceed expeditiously. F3ccausc the amendments cffectivcly create entirely
new claims, any such efficiencies will be lost by both the parties and the Cowrt.

78 Fc~r example, see: Domco Industries Ltd v Manningtorr Mills !nc (l 990}, 29 CPR (3 d) 4R ! (F'CA),
leave to appeal relused {1990}, 127 NR 239n, DBOA, Tab 11.
~~ Urder of Prothonotary 1Vlilczynski doled 24 October 2017 in T-2040-14; T-269-15; T-477-15;
'1'-lU85-15; `1'-1234-1 S; 'f-18G2-15; `f-2U4~-16; T-117-17; T-132-17; T-133-17; '1'-134-17,
lei
26

PART 1V —ORDER SOUGHT

88. The defendant respectfully requests that this motion be dismissed, with costs.

All of which is respectfully submitted this 26th day of Nc~very(~ie~•,~Ol S.

llicx

Counsel for the/Altcar~ey General of Canada
z~
C,ist of Authorities

LcQist~tion

Federal G'uurls Mules•, Ptiule 404

Case Law

,4dahi-U~JDIP21 U Canada, ~1994~ 3 k~C ll-41 {'1'I))
Air Canada v. 7aronto 1'or•1 Authority, 2U] 0 rC 1335
~Ipulex lac v Wellcvrrze F'oi~ndalion I,imi~ed, 2009 FC 949
13halnu~,~er v C;crnadta, [ 1986] 2 FC 3 at Paea 10
13lcrcklock's Reporter v Canadian Yir~tners.4ssociation, 2015 CanT:I] 65$85 (nN SCSM)
Ca~drel Lid v Canadu ~~] 994 1 faC; 3 (CA)
Celanese Canada Inc v Murray I~ernolitian Corp, 2006 SC:C 3G

Continental Bank Leasing C'orporution. et al v 7'he Queen, (1993), 93 DTC (TC:C}
Cuurvrlle v Ilarrison, 1998 C~trswellOnl 3482 at para 42

Domco Industries Llci v Manningtnn Mills Inc {1990), 29 CPR (3d) 4R i (FCA), leave to appeal
rcfuscd (1494), l27 N1Z 239

I'rohlick v Pinkerton Canada l.imitetl (2Q08), St{ OR (3d) 4Ul {LA)
Ceo~~ruphic Resources Integrcrled Data S'nlutinns Ltd r Peterson, 2015 ONSC 4658
Cordon v Starr, ~2007~ n.i iVo 262 (UN SC)

Merck d~ Co, Inc v Apotex Inr., 2003 T'C/t 488
PYO~PIO UIYL'Cl. I37C V ~G'YlC~IYBCI IYIC, 201 R FC 1089
~Juebec (I)irecleur des paursuites eyiminelles e~ penales) v ~l~cloin, 20l 7 SCC 26,
~S~ervices Finuncicr~s Llerricnt v 18.51424 C~ntari~ Inc., 2017 UNSC 5224