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Court File No.

: T-2090-14;
T-269-15;
T-1085-15;
T-1862-15;
T-117-17;
T-132-17;
T-133-17;
T-134-17;
T-943-17
FEDERAL COURT
BETWEEN:
1395804 Ontario Ltd., operating as Blacklock's Reporter
Plaintiff
-and-

Attorney General of Canada
Defendant

Court File No.: T-897-15
BETWEEN:
1395804 Ontario Ltd., operating as Blacklock's Reporter
Plaintiff
-and-

Canadian Transportation Agency
Defendant

Court File No.: T-1726-15
BETWEEN:
1395804 Ontario Ltd., operating as Blacklock's Reporter
Plaintiff
-and-

Library of Parliament
Defendant

Court File No.: T-1228-17
BETWEEN:

1395804 Ontario Ltd., operating as Blacklock's Reporter
Plaintiff
-and-

VIA Rail Canada Inc.
Defendant

MOTION RECORD
(Plaintiff's motion to amend)
MBM Intellectual Property Law LLP
275 Slater Street, 14th Floor
Ottawa ON K1P 5H9

Scott Miller
Deborah Meltzer

Tel: 613-567-0762
Fax: 613-563-7671
smiller(a~mbm.com
dmletzer~mbm.com

Solicitors for the Plaintiff

TO: THE ADMINISTRATOR
Federal Court Registry

Thomas D'Arcy McGee Building
90 Sparks Street, 5th floor
Ottawa ON K1A OH9

AND TO: DEPUTY ATTORNEY GENERAL OF CANADA
Nathalie G. Drouin

Per: Sarah Sherhols
Department of Justice
50 O'Connor Street, Suite 500
Ottawa ON K1A OH8
TeI: 613-670-6294/613-670-6287
Fax: 613-954-1920
Email: Sarah.Sherhols(a~justice gc c~

Solicitor for the Defendant

AND TO: THE LIBRARY OF PARLIAMENT

Per: Ariel Thomas
Fasken
1300-55 Metcalfe St.
Ottawa ON K1P 6L5
Tel: 613-696-6879
Fax: 613-230-6423
Email: athomasCa~fasken.com

Solicitor for the Defendant

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AND TO: CANADIAN TRANSPORTATION AGENCY

Per: Allan Matte
Canadian Transportation Agency
19-15 Eddy Street
Gatineau QC K1A ON9
Tel: 819-994-2226
Fax: 819-953-9269
Email: Allan.Matte(a~otc-cta.gc.ca

Solicitor for the Defendant

AND TO: VIA RAIL

Per: Bob Sotiriadis
Robic, LLP
1001 Square-Victoria, Bloc E, 8th fl,
Montreal QC H2Z 2B7
Tel: 514-987-6242
Fax: 514-845-7874
Email: sotiriadisCa~robic.com

Solicitor for the Defendant

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TABLE OF CONTENTS

TAB DOCUMENT DESCRIPTION PAGE

1 Notice of Motion dated August 27, 2018 1

A Draft Amended Statement of Claim in T-117-17 (Health Canada) 9
B Draft Amended Statement of Claim in T-943-17 (National Energy Board) 41

C Draft Amended Statement of Claim in T-1862-15 (Parks Canada) 59
D Draft Amended Statement of Claim in T-132-17 (Employment Canada) 77

E Draft Amended Statement of Claim in T-1085-15 (Competition Bureau) 99
F Draft Amended Statement of Claim in T-2090-14 (Canada Revenue 120
Agency)

G Draft Amended Statement of Claim in T-133-17 (Transport Canada) 139

H Draft Amended Statement of Claim in T-269-15 (Canadian International 159
Development Agency)

Draft Amended Statement of Claim in T-134-17 (FINTRAC) 176

J Draft Amended Statement of Claim in T-897-15 (Canadian Transport 195
Agency)
K Draft Amended Statement of Claim in T-1228-17 (Via Rail) 210
L Draft Amended Statement of Claim in T-1726-15 (Library of Parliament) 236
2 Affidavit of Tom Korski dated August 23, 2018 253
A Exhibit A — Blacklock's Articles of Incorporation dated January 11, 2000 260
B Exhibit B — Blacklock's Resolutions of the Board of Directors dated 262
January 11, 2000
C Exhibit C —Tom Korski's 2012-2016 T4 Statements of Remuneration 266
Paid (expurgated)
D Exhibit D — Blacklock's Notice of Motion filed March 21, 2017 272

E Exhibit E —the Attorney General's Amended Notice of Motion filed May 285
23, 2017

F Exhibit F —Affidavit of Jennifer Jans sworn on July 14, 2017, including 293
freelance agreements of Kaven Baker-Voakes, Alex Binkley, Mark
Bournie, Dale Smith and Justin Ling

G Exhibit G —Cover sheet from transcript of cross-examination of Dale 343
Smith on December 17, 2015

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H Exhibit H —Access to Information and Privacy Return dated February 345
28, 2018
Exhibit I — Blacklock's Statement of Claim against Dale Smith, dated 349
October 13, 2017, filed at the Ontario Superior Court (Court File No. 17-
74245)
J Exhibit J —Blacklock's Statement of Claim against Dale Smith, dated 386
November 6, 2017, filed at the Federal Court (T-1696-17)
K Exhibit K —Notice of Discontinuance in Court File No. T-1696-17 425
L Exhibit L —Email from A. Kaufman to Y. Hameed dated July 14, 2017 427
M Exhibit M —Email from Y. Hameed to authors of Blacklock's articles 429
dated July 17, 2017
N Exhibit N —Email from A. Kaufman to authors of Blacklock's articles 431
dated July 19, 2017
O Exhibit O —Email from A. Kaufman to authors of Blacklock's articles 433
dated July 21, 2017
P Exhibit P —Email from Y. Hameed to authors of Blacklock's articles, 436
copy to A. Kaufman dated July 26, 2017
Q Exhibit Q —Email from S. Sherhols to D. Smith, copy to A. Kaufman 438
dated August 3, 2017
R Exhibit R —Email from D. Smith to S. Sherhols dated August 3, 2017 440
S Exhibit S —Email from S. Sherhols to D. Smith dated August 21, 2017 442
T Exhibit T —Email from D. Smith to S. Sherhols, copy to A. Kaufman 445
dated August 30, 2017
U Exhibit U —Email from A. Kaufman to D. Smith dated August 30, 2017 447
V Exhibit V —Email from D. Smith to A. Kaufman dated August 31, 2017 449
W Exhibit W —Email from A. Kaufman to D. Smith dated August 31, 2017 451
X Exhibit X —Letter from the Attorney General to the Court dated 453
December 6, 2017
Y Exhibit Y —Letter from the Attorney General to MBM dated February 6, 456
2018
Z Exhibit Z —Letter from MBM to the Court dated May 30, 2018 461
AA Exhibit AA —Letter from MBM to the Court dated July 19, 2018 466
3 Written Representations of the Plaintiff 476

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1

Court File No.: T-2090-14;
T-269-15;
T-1085-15;
T-1862-15;
T-117-17;
T-132-17;
T-133-17;
T-134-17;
T-943-17
FEDERAL COURT
BETWEEN:
1395804 Ontario Ltd., operating as Blacklock's Reporter
Plaintiff
-and-

Attorney General of Canada
Defendant

Court File No.: T-897-15
BETWEEN:
1395804 Ontario Ltd., operating as Blacklock's Reporter
Plaintiff
-and-

Canadian Transportation Agency
Defendant

Court File No.: T-1726-15
BETWEEN:
1395804 Ontario Ltd., operating as Blacklock's Reporter
Plaintiff
-and-

Library of Parliament
Defendant

Court File No.: T-1228-17
BETWEEN:

1395804 Ontario Ltd., operating as Blacklock's Reporter
Plaintiff
-and-

VIA Rail Canada Inc.
Defendant

NOTICE OF MOTION
(Plaintiff's motion to amend)
2

TAKE NOTICE THAT the Plaintiff, 1395804 Ontario Ltd., operating as Blacklock's
Reporter, ("Blacklock's") will make motion to the Court on a date to be set by the Case
Management Prothonotary, Ms. Milczynski, at 90 Sparks St, Ottawa, Ontario, K1A OH9.

THE MOTION IS FOR:
1. An Order pursuant to Rules 75-79 and 201 of the Federal Courts Rules (Rules),
permitting Blacklock's to amend its Statements of Claim, as set out in the form attached
to this Motion Record, as follows:
Schedule Federal Court File No. Defendant
A T-117-17 Health Canada
B T-943-17 National Energy Board
C T-1862-15 Parks Canada
D T-132-17 Employment Canada
E T-1085-15 Competition Bureau
F T-2090-14 Canada Revenue Agency
G T-133-17 Transport Canada
H T-269-15 Canadian International Development
Agency
T-134-17 FINTRAC
J T-897-15 Canadian Transport Agency
K T-1228-17 Via Rail
L T-1726-15 Library of Parliament

2. An Order declaring that each of the below actions are converted from simplified to
ordinary procedure:
Schedule Federal Court File No. Defendant
C T-1862-15 Parks Canada
E T-1085-15 Competition Bureau
H T-269-15 Canadian International Development
Agency
T-134-17 FINTRAC
J T-897-15 Canadian Transport Agency

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3

3. An Order pursuant to Rule 235 of the Rules providing leave to Blacklock's to examine for
discovery each of the following Defendants:

Schedule Federal Court File No. Defendant
H T-269-15 Canadian International Development
Agency
E T-1085-15 Competition Bureau
J T-897-15 Canadian Transport Agency

4. Costs of this Motion; and

5. Such further and other relief as to this Honourable Court may seem just.

THE GROUNDS FOR THE MOTION ARE:
Background:

6. On December 6, 2017, the Attorney General of Canada ("AG") provided Blacklock's with
a summary of the parties' November 23, 2017 case conference which indicates that "no
party is to file any motion until there has been a CMC to discuss the issue/proposed
motion". A Direction was issued by the Court, accordingly.

7. On January 10, 2018, Blacklock's retained new counsel, MBM Intellectual Property Law.

8. On February 6, 2018, MBM participated in its first case conference wherein it advised
the Court that three matters had been settled. The Court was advised that the parties
were seeking ways to advance the litigation.

9. On February 6, 2018, the parties discussed whether legal questions could be
determined in advance of any trial including issues relating to confirmatory assignments
and technological protection measures. The parties met on March 13, 2018, but
unfortunately, consent to pursue a reference was declined.

10. On June 4, 2018, MBM participated in its second case conference in these matters.
MBM proposed, on behalf of Blacklock's that it provide draft amended Statements of

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4

Claim and seek consent accordingly for their filing. The draft claims were circulated on
July 4, 2018.

11. On July 25, 2018, MBM participated in its third case conference in these matters wherein
the Defendants confirmed they would not consent to the filing of the draft amended
claims.

Naming Correct Party:

12. The Plaintiff in each of the below actions mistakenly named a Government Department
and should have named the Attorney General of Canada. These propose amendments
do not cause any doubt as to the identity of the proper Defendant:
Schedule Federal Court File No. Defendant
B T-943-17 National Energy Board
C T-1862-15 Parks Canada
T-134-17 FINTRAC

Copvright Ownership:

13. Each of the Statements of Claim assert that Blacklock's owns copyright of the infringed
works. The proposed amended Statements of Claim seek to particularize the ownership
by Blacklock's of the copyright in issue -either by Mr. Tom Korski, author, being an
employee, officer and/or director of Blacklock's, each of the authors assigning copyright
to Blacklock's, or alternatively, as a result of Mr. Korski's contribution of originality and
expression to the asserted works. The Plaintiff is not seeking to alter the capacity in
which Blacklock's is bringing the proceedings.

Technoloaical Protection Measures (TPMI —Limitation Periods:

14. Blacklock's seeks to add a new cause of action to assert circumvention of the
Blacklock's technological protection measures contrary to s.41.1(1)(a) of the Copyright
Act. The new cause of action arises out of substantially the same facts as already
pleaded by Blacklock's in the actions. As such, technological protection measures may
be pursued notwithstanding that the amendment for certain of the actions occurred

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5

outside the limitation period.

Improper to Suppress Evidence:

15. Each of the proposed amended Statements of Claim where the Department of Justice is
counsel includes the following amendment under the heading of punitive damages: "The
Defendants agent improperly notified Alex Binkley, Kaven Baker-Voakes, Dale Smith,
Mark Bourrie and Justin Ling that they could withdraw evidence regarding Blacklock's
ownership of articles which they authored".

16. In making the said amendment, Blacklock's is relying on advice given by the counsel for
the Attorney General of Canada that the said authors were free to withdraw their
affidavits to avoid cross-examination.

Conversion from Simplified Actions to Ordinary Actions:

17. If the Court finds circumvention of Blacklock's TPM, the award of damages in each of
the current simplified actions could far exceed $50,000 in damages. As such, the
simplified actions ought to be converted to ordinary actions.

Additional Discove

18. If the proposed amendments are granted, common sense would dictate that Blacklock's
be permitted additional discovery in the three actions (T-269-15/CIDA; T-1085-
15/Competition Bureau; T-897-15/CTA) where written discovery has occurred.

Interest of Justice:

19. It is in the interest of justice to allow the proposed amended Statements of Claim.

20. It is not plain and obvious that the proposed amended Statements of Claim will fail at
trial.

21. Trial has not been set for any of the matters in issue. Moreover, the proposed

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amendments will determine the real questions in controversy between the parties.

22. The Defendants will not suffer any prejudice.

23. The Defendants have unnecessarily opposed the proposed amended Statements of
Claim. The Defendants have failed to consent to any part of the proposed amended
Statements of Claim.

24. Pursuant to Rule 77 of the Federal Courts Rules, and s. 43.1 of the Copyright Act RSC
1985, c C-42, the relevant period of limitation had not expired at the date of
commencement of the proceedings.

25. Sections 13(3), 41(a), 38.1(1), 41.1, 43.1 of the Copyright Act, RSC 1985, c. C-42, as
amended.

26. Rules 3, 47, 75, 76, 77, 201, 235, 292 of the Federal Courts Rules, SOR 98/106.

27. Such further and other grounds as counsel for the Plaintiff may advise.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion:
A. The pleadings and proceedings herein including Schedules A-L;

B. Affidavit of Tom Korski sworn August 23, 2018;

C. Such further and other materials as counsel may advise and this Honourable Court
may permit.

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DATED AT Ottawa, Ontario, this 27th day of August, 2018.

MB teilectual Property Law LLP
275 Slater Street, 14th Floor
Ottawa ON K1P 5H9

Scott Miller
Deborah Meltzer

Tel: 613-567-0762
Fax: 613-563-7671
smiller@mbm.com
dmletzer(a~mbm. com

Solicitors for the Plaintiff

TO: THE ADMINISTRATOR
Federal Court Registry

Thomas D'Arcy McGee Building
90 Sparks Street, 5th floor
Ottawa ON K1A OH9

AND TO: DEPUTY ATTORNEY GENERAL OF CANADA
Nathalie G. Drouin

Per: Sarah Sherhols
Department of Justice
50 O'Connor Street, Suite 5d0
Ottawa ON K1A OH8
TeI: 613-670-6294/613-670-6287
Fax: 613-954-1920
Email: Saral-~ Sl~rrhois(cx~justice.gc ca

Solicitor for the Defendant

AND TO: THE LIBRARY OF PARLIAMENT

Per: Ariel Thomas
Fasken
1300-55 Metcalfe St.
Ottawa ON K1P 6L5
Tel: 613-696-6879
Fax: 613-230-6423
Email: athomasC~?~asken.com

Solicitor for the Defendant

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AND TO: CANADIAN TRANSPORTATION AGENCY

Per: Allan Matte
Canadian Transportation Agency
19-15 Eddy Street
Gatineau QC K1A ON9
Tel: 819-994-2226
Fax: 819-953-9269
Email: Allan.MatteCu~otc-cta.gc.ca

Solicitor for the Defendant

AND TO: VIA RAIL

Per: Bob Sotiriadis
Robic, LLP
1001 Square-Victoria, Bloc E, 8th fl,
Montreal QC H2Z 2B7
Tel: 514-987-6242
Fax: 514-845-7874
Email: sotiriadis(c~robic.com

Solicitor for the Defendant

Page 8 of 8
SCHEDULE A
10

Court File No.: T-117-176

FEDERAL COURT

BETWEEN:

1395804 Ontario Ltd., operating as Blacklock's Reporter

Plaintiff
-and-

Attorney General of Canada
Defendant

AMENDED STATEMENT OF CLAIM

TO THE DEFENDANT:

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the
Plaintiff. The claim made against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or a solicitor acting for you
are required to prepare a statement of defence in Form 171B prescribed by the Federal
Courts Rules, serve it on the Plaintiff's solicitor or, where the Plaintiff does not have a
solicitor, serve it on the Plaintiff, and file it, with proof of service, at a local office of this
Court, WITHIN 30 DAYS after this statement of claim is served on you, if you are served
within Canada.

If you are served in the United States of America, the period for serving and filing
your statement of defence is forty days. If you are served outside Canada and the
United States of America, the period for serving and filing your statement of defence is
sixty days.

Copies of the Federal Courts Rules, information concerning the local offices of
the Court and other necessary information may be obtained on request to the
Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

IF YOU FAIL TO DEFEND THIS PROCEEDING, judgment may be given against
you in your absence and without further notice to you.
January 24, 2017
July XX, 2018 Issued by:
(Registry Officer)

Federal Court of Canada
90 Sparks Street, 1St Floor
Ottawa ON K1A OH9
Tel: 613-992-4238
Fax: 613-947-2141

TO: Nathalie G. Drouin
Deputy Attorney General of Canada
Per: Alexandre Kaufman
Sarah Sherhols
Department of Justice
50 O'Connor Street, Suite 500
Ottawa ON K1A OH8
Tel: 613-670-6294/613-670-6287

Counsel for the Defendant

E
12

CLAIM

1. The Plaintiff, 1395804 Ontario Ltd., operating as Blacklock's Reporter
("Blacklock's"), claims:

ei A declaration that the Defendant has breached the Copyright Act (R S.C.,
1985, c. C-42) (the "Act"):
a) copvright subsists in the Locked Articles (as defined below) and the
Plaintiff is the owner thereof;
b) copyright subsists in the Circulated Articles (as defined below) and
the Plaintiff is the owner thereof;
c) the Defendant has infringed copvright in the Plaintiff's Circulated
Articles (as defined below) contrary to s.27.(1) of Act; and
d) the Defendant has circumvented the Blacklock's technological
protection measures, Blacklock's TPM (as defined below) that
controls access to the Plaintiff's Locked Articles contrary to s.
41.1(1)(a) of the Act;

ii A permanent injunction to restrain the Defendant, including its employees,
workers, agents or any other persons under its direction, power, or control
from producing or reproducing the Plaintiff's Works (as defined below) and
circumventing the Blacklock's TPM (as defined below) without
authorization from the Plaintiff;

a-} iii An order awarding the Plaintiff monetary relief in excess of $50,000,
exclusive of interest and costs, as follows:
a) damages, or statutory damages, as the Plaintiff may elect, #e~
ACt Q c r ~gQ~ i«~,n~,.+»> ,. r n~ for
the unauthorized use, distribution, production, reproduction and
third party dissemination of ,~ ci ihcnrir~+inn h~corJ ~,,,,+o„+ the
Plaintiff's Circulated Articles (as defined below)
;and

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13

b) damages, or statutory damages, as the Plaintiff may elect for
circumvention of Blacklock's TPM las defined belowl to be calculated on a
per-work basis for each of the Locked Articles (as defined below)

~} iv Punitive and/or exemplary damages ,

~-} v~ Prejudgment and post judgment interest in accordance with the provisions
of the Federal Courts Act (R.S.C., 1985, c. F-7); ,

e} vi Costs of this action together with any applicable goods and services tax;
and

#} vii Such further and other relief as this Honourable Court may deem just.

The Parties

2. The Plaintiff is a subscription based news corporation that covers politics, bills
and regulations, reports and committees, as well as Federal Court and public
accounts in Canada. It is a reporter-owned and operated newsroom in Ottawa
that provides news on a subscription basis to individuals, business, labor and
associations via its website located at www.blacklocks.ca (the "Blacklock's
Website").

2A. The Plaintiff is a corporation oraanized and existina under the laws of the
Province of Ontario with a arincigal glace of business located at 409 Thi
Avenue, Ottawa, Ontario, K1S 2K6.

2B. The present claim against the Defendant relates specifically to the actions of the
Department of Health Canada ("Health Canada") (hereinafter sometimes
referred to as the "Defendant") as represented by the Attorney General of
Canada. Health Canada is the federal department responsible for helping the
14

people of Canada maintain and improve their health. Health Canada, according
to its website, is motivated and guided by personal integrity, and advances the
public aood while honourina democratic values. Health Canada glays five core
roles of leader/partner, funder, guardian/regulator, service provider, and
information provider in order to realize their vision. Health Canada strives to meet
its objectives by workina with others in a manner that fosters the trust of
Canadians.

2C. This action is substantially the same as Ontario Superior Court of Justice. Court
File No. 16-68441 between the same aarties herein which was discontinued on
or about May 1, 2017. The action was discontinued so that it could proceed in the
Federal Court. Attached as Schedule "A" is a coav of the Statement of Claim in
Ontario Sugerior Court File No. 16-68441.

2D. At all material times referred to in this claim. the individuals associated with the
Defendant were actina for the benefit of the Defendant. motivated by the
institutional interests and mandate of the Defendant.

2E. During the periods of 2013-2014 and 2014-2015, Health Canada had full-time
equivalent staff of 9,375 and 9,037 respectively.

Copyright

3. The Plaintiff maintains the majority of its online articles on the Blacklock's
Website as pay walled ~ea~+~g so that the general public cannot access +~s
articles without a subscription ("Locked Articles"). The Locked Articles are
identified in Schedule "B" hereto.

3A. By January 28. 2017 there were at least 4606 Locked Articles accessible through
the Blacklock's Website.

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15

3B. Some of the Plaintiff's articles are "unlocked" and are available to users of the
Blacklock's Website without a subscription ("Unlocked Articles"). The Plaintiff is
currently unaware of any Unlocked Articles that have been produced, reproduced
or distributed by the Defendant.

3C. The Locked Articles and Unlocked Articles may hereinafter be collectively
referred to as the "Works". The Plaintiff owns the copyright in all of the Works:

a) The Plaintiff is the first owner of copyright in all Works written by Tom
Korski and 'bv staff' by virtue of Mr. Korski beina an emblovee. officer
and/or director of the Plaintiff or, in the alternative, as a result of the
assignment of copyright from Mr. Korski to the Plaintiff. All Works written
'bv staff' were written by Mr. Korski:
b) All Works having an author identified as an individual other than Mr. Korski
or Paul Delahanty are owned by the Plaintiff as a result of the author
assianina cogvriaht in the article to the Plaintiff or. in the alternative. as a
result of Mr. Korski's contribution of sufficient originality and expression to
such articles;
c) The Plaintiff is an owner of all copyright in the Works written by Paul
Delahanty as a result of Mr. Korski's written contribution of sufficient
originality and expression to such articles;
d) Each of the accredited authors of any of the Works, being Kaven Baker-
Voakes, Alex Binkley, Mark Bourrie, Paul Delahanty, Dale Smith, Justin
Lina. Jason Unrau and Tom Korski. was at the date of makina of any of
the Works a citizen of Canada.
e) Each of the Works has been published in Canada;
f) Each of the aforementioned authors is alive but for Paul Delahanty who
passed away on June 28, 2015.

3D. The assianments of cogvriaht from the authors of the Works to the Plaintiff are
attached as Schedule "C" hereto.

D
16

3E. The Plaintiff's Works may not be produced or reproduced without the Plaintiff's
authorization.

3F. All users of the Blacklock's Website, including subscribers must comply with the
Blacklock's Terms and Conditions, which are posted on the Blacklock's Website
("Terms and Conditions"~. RlonLlnnl~'c ~„~~or,~~ ~~ nnr~vrirvh4 nr„+o,.+o,~ -,,,,~ .,,-,,,
,,,,+ ho ,~~~~o.,-,~„~+o~, Annual Ssingle user electronic subscriptions were available
in 2013 for $148 plus tax. Tho~o +ormc ~„~, rnnr~li~inrie pro .,,,~+o~, „n ~+~ ,~,oh~~+o
The Blacklock's Terms and Conditions directs a party wishing to purchase bulk
rate e~ subscriptions #~—~r~~~i~a#+r~ns ~ ~ ho ^i irnh~cor! h„ to contact+~g
Blacklock's directly. f~ ~r+hor ~n ~nihinh o lironcinn rnn~ron4 is rionn~i~toi-1 hofin~oor,

Oho r»r4ioc

3G. The Blacklock's Terms and Conditions included inter alia a prohibition on the
distribution of the Works by a single user; institutional in-house production
reproduction and distribution would only be permissible with the purchase of a
bulk subscription.

._
■_
17

Technological Protection Measures

5A. The Blacklock's technological protection measure constitutes a password
protected paywall that controls access to the Plaintiff's Locked Articles. The
general public cannot access the Locked Articles until a user purchases a
subscription from the Plaintiff and a unique subscriber password is created by the
user ("Blacklock's TPM"). The password terminates upon the termination of the
subscription.

5B. Circumvention of the Blacklocks TPM includes:
(i) sharing of a unique subscriber password with someone who is not
authorized to have the unique subscriber password'
(ii) sharing of a Locked Article accessed from a single user subscription to
anyparty; or
(iii) unauthorized persons) or entitv(s) requesting and thereafter receiving a
Locked Article from anyone having access either directly or indirectly to
the Locked Article.

5C. The Plaintiff business model is to charge a fee for access to its Locked Articles.
Without the benefit of the Blacklock's TPM, the Plaintiff's business would not
exist.

5D. Once a password is created by a subscriber the Plaintiff has no knowledge of
how the password is used or which Locked Articles were accessed using the
particular password.
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Purchase of Individual Subscriptions

8. On July 4, 2013, the Defendant purchased a $167.24 individual single-use
electronic subscription to Blacklock's in the name of Sharron Drummond
("Drummond"), Administrator Officer, at the following email address:
he media sc(a~hc-sc.gc.ca (the "First Drummond Subscription").

9. The Plaintiff's Terms and Conditions were posted on +~s the Blacklock's v~rWebsite
at the time AA-s- Drummond purchased the First Drummond sSubscription. k~
i~El~~e~1--±~at~a~'a,a~reap~~ a~eT ~"~t~~^~f +~"~~u,~~ ~„+ Ee;zep~~er

10. On e~-a-bet+ September 12, 2013, the Plaintiff and the Defendant exchanged
communications. During this exchange, Holly Doan, publisher at Blacklock's
~~^r+~~sent an email to Sean Upton, Communications Officer at Health
Canada, in which she advised him that Blacklock's Terms and cConditions
require a bulk rate subscription to distribute copy. .
e~ai~

10A. On September 12, 2013, Mr. Upon replied that the Health Canada media
monitoring group had a Blacklock's subscription. This reply did not reveal the
manner in which the subscription was used, if at all.

11. On e~-a~at~~ January 8, 2014, the Plaintiff communicated with Gary Holub, Media
Relations Officer, Health Canada, in reference to an interview regarding a story
relating to Health Canada. At the end of this communication, Health Canada
19

requested a copy of a Blacklock's article and was directed to contact Holly Doan
for subscription inquiries.

12. The Defendant did not follow up on this inquiry or contact Ms. Doan.

12A. On February 10, 2014, the Defendant purchased a $164.85 individual single-use
electronic subscription to Blacklock's in the name of Line M des Rosiers ("des
Rosier"), Administrator Officer at the following email address:
alberta.newclips(a~hc-sc.gc.ca (the "First des Rosier Subscription").

~12B. On July 14, 2014, the Defendant purchased a~►sthe~ a second individual single-
use ~~
~~~ subscription (the "Second Drummond Subscription") ~e
~
R'~ ' ~, for the amount of $177.41, in the name of Drummond at the following
email address: hc_media_sc@hc-sc.gc.ca.

~12C. On July 14, 2014, the Plaintiff sent an email to Drummond, indicating that t#is
the Second Drummond sSubscription did not allow for redistribution of
Blacklock's Works. no,^,~ ^^n+o^+ The Plaintiff also directed Drummond to its
Terms and eConditions.

~12D. On July 15, 2014, Mark Montreuil ("Montreuil"), Chief Communications
Executive at Health Canada, replied to the Plaintiff's email of July 14, 2014 and
requested a quote for a distribution license for up to 240 users. The Plaintiff
responded and indicated the previous use of the Drummond account was under
review.

12E. On January 28, 2016, the Defendant purchased a~e#~ie-~ a second individual
single-use ~~~~~+ ~ subscription (the "Second des Rosier Subscription") #a
Rl~r ~, for the amount of $164.85, in the name of Drummond at the
following email address: alberta.newsclipsCa~hc-sc.gc.ca.

10
12F. On December 19, 2016, des Rosier and Blacklock's exchanaed emails. des
Rosier inquired about subscription renewal. In reply, Blacklock's requested
information regarding what the Second des Rosier Subscription was used for. In
reply, des Rosier indicated that Blacklock's Login Information (as defined below)
is accessible by one person only beinq a Defendant's communications officer.

1.2G. The Plaintiff's Terms and Conditions were posted on the Blacklock's Website at
the time the Defendant purchased the subscriptions described herein.

Access to Information Request

13. The Plaintiff does not have the capacity to monitor each single-user ~a-E
~
~; ?~~c~i~~r a~~he-~+~e-~ subscription ~~ ~~ ~rrh~corJ but makes diligent
efforts to assess the nature of the uses of single-user subscriptions by making
inquiries with subscribers who have purchased subscriptions as well as by filing
statutory information requests as permitted under the Access to Information Act-
to ensure that single-user subscribers are complvinq with Blacklock's Terms
(~nnrlitinnc

14. On April 7, 2014 and July 5, 2015, the Plaintiff submitted an Access To
Information request to verify whether the Defendant was complying with the
Plaintiff's Terms and Conditions in respect of the First and Second Drummond
Subscription. ~~~~+~" ~~a~a--r~q~es~n~~a~l c~„~P~era^~E~e~+.,+fir
u~~iThi.~~nn i ico c~nrono ~nrJ r~i4~4inn of ~r~inloc nr ~n~i n}hor r~nn4ori4 h~i r~~+r~or

eEeE~r~n i~i~# n+~~e~-s~-a-~y~t#er-~ea~s~~+,a-fie ,
o ci ihcnr~4inri fn 4h~pi
a—o'a c~cn cry i r-nv n r avr
ihll~~~~,nZf gTac~~Te~c-~ppy~e~~
..N -
~~~'Fc—n~+mo of ~+nr~ni int

14A. On or about November 30, 2014 and before March 2017, the Plaintiff submitted
an access to information request to verify whether the Defendant was complying

11
21

with the Plaintiff's Terms and Conditions in respect of the First des Rosier
Subscription and Second des Rosier Subscription.

ATI Returns Showing Copvright Infringement

15. On May 12, 2014 and August 10, 2015, the Plaintiff received the first and second
ATI disclosure regarding the First Drummond Subscription and Second
Drummond Subscription ("Drummond ATI Returns"). frn~",~-~e#c~~'~~T-b~

15A. On December 14, 2014 and March 27, 2017 the Plaintiff received the first and
second ATI disclosure regarding the First and Second des Rosier Subscriptions
("des Rosier ATI Returns").

15B. The Drummond ATI Returns and the des Rosier ATI Returns are collectively
referred to as the ATI Returns.

15C. The ATI Returns show that the account details of the Second des Rosier
Subscription, including the username and password ("Login Information") were
shared with the Defendant's employees. Blacklock's Terms and Conditions
prohibit a single user from sharing the Works by any and all methods, which
includes username and password sharing.

15D. The des Rosier ATI Returns shows the following sharing of Login Information:

Date Sender Recipient
Shannon Jones
01/28/2016 Line des Rosiers
Miranda Post

12
22

Erin Turcotte
Jennine Wri ht
Added Login Information to shared
03/02/2016 Line des Rosier
drive
Shannon Jones
Miranda Post
03/02/2016 Line des Rosiers
Erin Turcotte
Jennine Wri ht
03/04/2016 Line des Rosiers Jared Pachan

15E. The Plaintiff pleads that if there were other shared Login Information or requests
for Locked Articles not referenced above that such knowledge is in the purview of
the Defendant.

15F. The Drummond ATI Returns show that since at least as early as July 2013, the
Defendant produced, reproduced and/or distributed at least 119 of the Plaintiff's
Works to persons within the Defendant's department, (the "Circulated Articles").
The Plaintiff has knowledge of the circulation of the following articles which are
attached as Schedule "D" hereto and summarized in the below table:

Locked (L)
Blacklock's Article or Date of initial
Sender Recipients
and Author Unlocked Distribution
U
Pesticide Census
Years Late But
Andre
"Catching Up": Feds L Unknown HGSC Media
Gagnon
B Tom Korski
A New Battle On
Generics Andre
L Unknown HC-SC Media
Gagnon
B Alex Binkle
Health tests Miss
Toxins?
Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
Bees. Trouble.
Nicolas
L Unknown HC-SC Media
Frate
B Alex Binkle
"Buy Local" Andre
L Unknown HC-SC Media
cam ai n is Mostl — Ga non

13
23

Talk, Studv Shows

B Staff
Missing From the
Menu
Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
Feds to Ease Hemp
Rules
L Unknown HC-SC Media
Gagon
B Tom Korski
Hmm, 'Leather
Cleaner' Andre
L Unknown HC-SC Media
Gagnon
B Staff
How did you do?
Terrible Andre
L Unknown HC-SC Media
Gannon
B Alex Boutilier
A Federal "Kill"
Warning Andre
L Unknown HGSC Media
— Gagnon
B Staff
Health Canada urged
to Review Cookware Andre
L Unknown HC-SC Media
Gagnon
B Staff
Haste Does Not
Make Waste
Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
Civil Servents No
Sicker Than The
Andre
Rest Of Us? L Unknown HC-SC Media
Gagnon
B Alex Boutilier
Saving A $2 Billion
Asset
L Unknown HC-SC Media
Gagon
B Alex Binkle
A Close Call On Beer
Labels
Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
"We do not have a
Andre
national housing L Unknown HC-SC Media
Gagnon
olic in Canada"

14
24

B Staff
Food Inspectors
Won't Pav For
Andre
Mistake U Unknown HC-SC Media
Gagnon
B Dale Smith
Bees. More Trouble
Andre
L Unknown HC-SC Media
Gagnon
By Tom Korski
Victory —Then
Defeat
Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
Canada In 20 years:
Older, greyer &Still
Andre
On the Job L Unknown HC-SC Media
Gagnon
B Tom Korksi
Farmers Vs. Health
Canada Andre
L Unknown HC-SC Media
— Gaq non
B Alex Binkle
End of a Regulatory
Era
L Unknown HC-SC Media
Gagon
B Tom Korski
Health Canada
Rethinks Labels
Michelle
L Unknown HC-SC Media
Gaudet
By Kaven Baker-
Voakes
What Changes?
Andre
L Unknown HC-SC Media
Gagnon
B Tom Korski
Minister to Trade
Critics: Don't "Hold
Andre
Back The Day" L Unknown HC-SC Media
Gagnon
B Alex Binkle
9 in 10 Scientists Michelle
Muzzled? Gaudet;
L Unknown HC-SC Media
Andre
B Dale Smith Ga non
No Text, "No
Changes" Andre
L Unknown HC-SC Media
Gagnon
B Alex Binkle
A Million-Tire Case In L Unknown Nicolas HC-SC Media

15
25

Court Frate

B Tom Korski
Sneaky and
Subversive Andre
U Unknown HC-SC Media
Gannon
B Tom Korski
Not Your Mom's
Groceteria
Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
"People lost
confidence..." Andre
L Unknown HC-SC Media
— Gagnon
B Tom Korski
`The devil is in the
details'
Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
Pricier Drugs with
Andre
Pact?
Gagnon;
L Unknown HC-SC Media
Nicolas
By Kaven Baker-
Frate
Voakes
Eleven Cities
Targeted in
Mammoth Grocery Andre
U Unknown HC-SC Media
Check — Gaanon

B Tom Korski
Unions To Be
`Restructred' In 2014,
Andre
Says Treasury Board L Unknown HC-SC Media
Gagnon
B Dale Smith
Steaks Get the Okav
Andre
L Unknown HC-SC Media
Gagnon
B Paul Delahant
No Quick Relief Here
Michelle
L Unknown HC-SC Media
Gaudet
B Alex Binkle
Call Or Pav On Druq
De Michelle
w L Unknown HC-SC Media
— Gaudet
B Dale Smith
Bill Gets Flayed Andre
L Unknown HC-SC Media
Some More Ga non
Food Safet Has L Unknown Michelle HC-SC Media

16
26

Weakness Gaudet

B Alex Binkle
Feds OK Lab-Grown
Fish
Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
Food Penalties
"Surprising" Michelle
L Unknown HC-SC Media
— Gaudet
B Alex Kinle
MP Says Union Staff
"Lazy" & "Dead
Nicolas
Wejght„ L Unknown HC-SC Media
Frate
B Paul Delahant
"Consumers have a
right to know..." Andre
L Unknown HC-SC Media
— Gagnon
B Alex Binkle
Drug Costs Up A
Billion With Euro
Andre
Pact, MPs Told L Unknown HC-SC Media
Gagnon
B Paul Delahant
$1B Druq Claim
Disputed Michelle
L Unknown HC-SC Media
— Gaudet
B Staff
'Almost every major
shift in regulations in
Michelle
crisis-driver' L Unknown HC-SC Media
Gaudet
B Alex Binkle
Senate Opens Bee
Probe
L Unknown HC-SC Media
Ga tlon
B Staff
Labels Would Help:
~
R Michelle
L Unknown HC-SC Media
Gaudet
By Kaven Baker-
Voakes
One Wav To Save
On Dining
Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
'Natural Doesn't L Unknown Nicolas HC-SC Media

17
27

Mean Safe' Frate

B Tom Korski
Senate To Probe
Fish Farms Andre
L Unknown HC-SC Media
Gagnon
B Paul Delahant
Military Cuts War On
Drugs Funding 75% Andre
L Unknown HC-SC Media
Gagnon
B Tom Korski
It's A Long Climb
Michelle
L Unknown HC-SC Media
Gaudet
B Alex Binkle
A Water Treatment
Plant In Every
Canadian Andre
L Unknown HC-SC Media
Household? — Gagnon

B Staff
A Million-Dollar Habit
Michelle
L Unknown HC-SC Media
Gaudet
B Staff
Feds Probe Plane
Chemicals Nicolas
L Unknown HC-SC Media
Frate
B Staff
Health Canada
Reduced To
"Insufficient" Twitter Andre
L Unknown HC-SC Media
Blitz — Gagnon

B Tom Korski
Health Canada
Reduced To
"Insufficient' Twitter Nicolas
L Unknown HC-SC Media
Blitz Frate

B Tom Korski
Bees Versus
Farmers Andre
L Unknown HC-SC Media
Gagnon
B Alex Binkle
Feds Test For Nuke
Fallout Andre
L Unknown HC-SC Media
Gagnon
B Tom Korski
Mercury Probe In 20
Michelle
Lakes L Unknown HC-SC Media
Gaudet

~:3
28

B Paul Delahant
37 Drown In National
Parks
L Unknown HC-SC Media
Gaqon
B Tom Korski
Survey Asks, `What
Did You Eat That
Andre
Made You Sick?...' L Unknown HC-SC Media
Gagnon
By Staff
Refinery Gases
Rated Toxic Michelle
L Unknown HC-SC Media
Gaudet
B Dale Smith
Smoking Rates
Plateau: "We Used
To Be A World
Michelle
Leader" L Unknown HC-SC Media
Gaudet
By Kaven Baker-
Voakes
Most Stressful Job In
Gov't? Nicolas
L Unknown HC-SC Media
— Frate
B Tom Korski
23 Chemicals Under
Review
Nicolas
L Unknown HC-SC Media
Frate
By Kaven Baker-
Voakes
AG Canada Monitors
Protests On Made-In-
Andre
The-Lab Salmon L Unknown HC-SC Media
Gagnon
B Tom Korski
Bee Probe Delayed
Ti112018 Michelle
L Unknown HC-SC Media
Gaudet
B Tom Korski
Bee Chemical 'Like
T lenol' Andre
L Unknown HC-SC Media
Gagnon
B Paul Delahant
Health Canada Can't
Be Sued For Mistake:
Andre
Judge L Unknown HC-SC Media
Gagnon
B Staff
Curses, The Sierra Andre
L Unknown HC-SC Media
Club — Ga non

19
29

B Paul Delahant
Senate Issues Druq
Andre
d
Wa L Unknown HC-SC Media
— Gagnon
B Tom Korski
1 Out Of 4 Seek
Counselling Andre
L Unknown HC-SC Media
— Gagnon
By Staff
Chemical Census
Years Late Andre
L Unknown HC-SC Media
Gagnon
B Tom Korski
Half Never Heard Of
Pact
L Unknown HC-SC Media
Gagon
B Paul Delahant
Free Trade Spikes
`Buy Local' Bids Andre
L Unknown HC-SC Media
Gagnon
B Dale Smith
'Do We Have A
Policy? No' Andre
L Unknown HC-SC Media
Gagnon
B Staff
Rome Wasn't Built In
~
A Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
Nvet To Cutbacks
Andre
L Unknown HC-SC Media
Gagnon
B Dale Smith
New Rules To
Monitor Lobbyists Andre
L Unknown HC-SC Media
Gagnon
B Paul Delahant
Cuts Open Contract
Talks
Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
Bees Get Federal
Tax Break Michelle
L Unknown HC-SC Media
— Gaudet
B Paul Delahant
Dumping At Sea
Andre
Gets OK L Unknown HC-SC Media
Gagnon

20
30

B Staff
It Comes With
Instructions Michelle
L Unknown HC-SC Media
Gaudet
B Tom Korski
Bees. Careful.
Nicolas
L Unknown HC-SC Media
Frate
B Staff
Court Hears Pharma
Case
L Unknown HC-SC Media
Gaqon
B Dale Smith
Cabinet Tackles Piq
Virus
Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
Inspectors Get New
Powers Andre
L Unknown HC-SC Media
— Ga non
B Tom Korski
20 Years With The
Internet
Andre
L Unknown HC-SC Media
Gagnon
By Dale Smith

For Tanners, A
Gruesome New
Michelle
Label L Unknown HC-SC Media
— Gaudet
B Paul Delahant
Law Will OK
Pesticides By Fish
Nicolas
Farmers L Unknown HC-SC Media
Frate
B Staff
Beekeepers Appeal
For Ban Michelle
L Unknown HC-SC Media
— Gaudet
B Staff
Senate To Probe
Obesi Andre
L Unknown HC-SC Media
— Gagnon
B Tom Korski
Chemical Run-Off
Blamed Andre
L Unknown HC-SC Media
Gagnon
By Staff
Toy Toxins Not Michelle
L Unknown HC-SC Media
Re ulated — Gaudet

21
31

By Kaven Baker-
Voakes
'Who Keeps the
Statistics?' Andre
L Unknown HC-SC Media
Gagnon
B Staff
Salmon Fresh From
The Lab Andre
L Unknown HC-SC Media
Gannon
B Dale Smith
Drug Co. Pays
$248K Fine Andre
L Unknown HC-SC Media
Gaq non
By Dale Smith
Insurers Eye Pot
Rules
L Unknown HC-SC Media
Gagon
By Tom Korski
Fish Farm Pesticides
Closer Andre
L Unknown HC-SC Media
Gagnon
B Staff
Teamwork Could
Save Cash
Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
Frackinq Chemicals
Secret Andre
L Unknown HC-SC Media
— Gagnon
B Tom Korski
"Removes Pets;
Keep Away From
Children..." Michelle
L Unknown HC-SC Media
— Gaudet
By Kaven Baker-
Voakes
Chemical Probe
Takes Years Andre
L Unknown HC-SC Media
— Gagnon
B Tom Korski
Price Check On
Grocery Chains
Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
Frackinq's Not Our
Andre
Business L Unknown HC-SC Media
Gagnon

22
32

B Tom Korski
Feds Pressed On
Farm Chemicals Andre
L Unknown HC-SC Media
Gagnon
B Staff
"We Are On A Very
Thin Line" Andre
L Unknown HC-SC Media
— Gagnon
B Tom Korski
Pot Privatized At
Midnight Andre
L Unknown HC-SC Media
Gagnon
B Staff
Bill Curbs
"Unscrupulous" Biq
Pharma, Says Andre
L Unknown HC-SC Media
pS onsor Gagnon

By Paul Delahanty
'Why Believe Your
ata.~~
L Unknown HC-SC Media
Gagnon
B Staff
No Evidence That
Wireless Is Unsafe
Michelle
L Unknown HC-SC Media
Gaudet
By Kaven Baker-
Voakes
"We Need Some
Science..." Michelle
L Unknown HC-SC Media
Gaudet
B Staff
More Fines On
Processors Michelle
L Unknown HC-SC Media
Gaudet
B Alex Binkle
No Biq Risk, Feds
Promise Michelle
L Unknown HC-SC Media
— Gaudet
B Paul Delahan
Five Months, No
Consensus Andre
L Unknown HC-SC Media
— Gagnon
By Alex Binklev
Feds Pressed On A
Grocery Code Andre
L Unknown HC-SC Media
Gagnon
By Kaven Baker-
Voakes
Feds L Unknown Michelle HC-SC Media

23
33

"Unconscionable": Gaudet
MP

By Kaven Baker-
Voakes

the above articles were and continue to be Locked Articles. The Plaintiff
pleads that if there are other Circulated Articles not referenced above such
knowledge is in the purview of the Defendant and will be the subject of discovery.

15H. The Plaintiff pleads that the Defendants wrongful activities described in this
action occurred for commercial purposes for media operation and monitoring by
the Defendant.

151. On or about March 27, 2017, the Plaintiff became aware of the Defendant's
wrongful sharing of Login Information following a review of the second des Rosier
DTI rota irri

15J. On or about May 12, 2014, the Plaintiff became aware of the Defendant's
wronaful production. reproduction and distribution of the Circulated Articl
following a review of the first Drummond ATI return.

16. The ATI Returns demonstrate that various email groups which received the
Circulated Articles consisted of a total of approximately 1,192 email accounts,
including email accounts corresponding to government employees in
departments and agencies other than Health Canada.

24
34

~ .

.~

20. On August 22, 2014, the Plaintiff sent an email to the Defendant indicating that it
had identified approximately 121 stories that were distributed to approximately
2000 names. Accordingly, the Plaintiff requested that Health Canada confirm
whether its content was in fact distributed to 2000 users and also requested the
identity of a gmail user whose name was redacted from the ATI request.

21. On September 4, 2014, Montreuil indicated that no more than 500 people
received the Articles directly from Health Canada. He also revealed the name of
the gmail account holder.

22. On September 27, 2014, after the Plaintiff undertook its own calculations, the
Plaintiff sent Health Canada an invoice in the amount of $90,100.55. This amount
represents the cost of an institutional license to a department the size of Health
Canada, and institutional license charges for the multiple instances of third-party
distribution to people within the Privy Council Office, Citizenship and Immigration
Canada, the Department of Agriculture, and the Canadian Food Inspection
Agency.

Damages for Breach of Copyright Act

22A. The Defendant's production, reproduction, and distribution of the Circulated

25
35

Articles was explicitly prohibited by the Plaintiff. In doing so, the Defendant
infringed the Plaintiff's copyright in the Circulated Articles.

22B. The events described in paragraphs 15C, 15D and 15F herein amount to the
circumvention of the Blacklock's TPM in that the sharing of the password sharing
of the Locked Articles and/orr requesting a Locked Article removes impairs,
avoids and/or bypasses the Blacklock's TPM. By circumventing the Blacklock's
TPM the Defendant had access to the entire library of Locked Works of the
Plaintiff until the expiry of the password on or about January 28, 2017.

22C. The Defendant was aware or should have been aware that its action
contravened s.27(1) and s.41.1(1)(a) of the Act.

26
36

28. The Plaintiff states and it is the fact that since December 2012, the Defendant
routinely purchased and does purchase electronic subscriptions from a number
of different news media content providers and spent between $12,000 and
$97,000 in annual subscriptions from individual media content providers.

27
37

of
v o lir~or~ca fnr RI~rLlnrl~'c nnr~4on4 h~i I-lo'+I}h (`~+r~~rJ-+

Punitive and/or Exemplary Damages

kL~~1:ZrP. -

Plaintiff relies on the above facts and the following facts for its claims for punitive
and/or exemplary annr damages against the Defendant ~^ +"~ 'm^„^+ ^f
~ p,&S2 61{1-~~-1~~2~! ~1C
11'~~I~~I6I~tFS~n.~! h inh h~n rJ
~~r~rci~Tc~.vr'
Y rcacc

of +ho Ilofor,rJor,+ onr! rolioc ~ ir~nn Oho fnlln~niinn f~nFc in ci ir~r~nr~ of i}c nl~+im•

a) Tf~~ p~~~^+~~ o~r~;^~+~„ m~,~o The Defendant ~~^~~ro ^f ~+~ knew or ought to
have known that it was circumventing Blacklock's TPM ab r disclosing login
information to employees within Health Canada without authorization and
without adverting to the Terms and CEonditions of the Plaintiff;

b) The Defendant routinely purchased and had, at the material times referred
to herein, subscribed to news media content paying between $12,000 and
$97,000 per year for such subscription to each content provider and was
accordingly aware of the cost of purchasing institutional licenses for such
content;

c) The Defendant did not advise its employees of Blacklock's copyright
restrictions demonstrating disregard for its legal obligations and the value
of the Plaintiff's economic interests;

~,
38

d) The Defendant acted in bad faith by disseminating and circulating
information within Health Canada and to government employees outside
of Health Canada with the explicit knowledge that the Plaintiff's content is
available by subscription only;

e) After receiving the Plaintiff's article through an individual subscription, the
Defendant did not have an incentive to purchase an institutional user
license from the Plaintiff, the outcome of which was a foreseeable and
adverse consequence to the Plaintiff's economic interests;

fl Circumvention of subscription based lawful access of online news content
erodes the basis of the Plaintiff's business and its ability to charge a fee
for its services;

g) The Defendant's dealings with the Plaintiff demonstrate an unethical
business practice, the gravity of which may be aggravated should further
unauthorized disclosure of Blacklock's content be discovered;

h) The Defendants dealings with the Plaintiff run counter to its commitment
to personal integrity and working with others in a manner that fosters the
trust of Canadians.

i) The Defendant has a public duty to lawfully use the media resources it has
obtained;

j) The unlawful sharing of copyright protected content for use by a publicly
funded agency adversely affects public confidence in the practices of the
Defendant;

k) The Defendant is or should have been aware that institutional
subscriptions are different than personal use subscriptions and that

29
39

government agencies are not individual or personal users;

I) Ms. Drummond, on behalf of the Defendant, purchased and maintained an
individual electronic subscription while the Media Monitoring Group
engaged in distribution of Blacklock's content on behalf of the Defendant
institution, which they knew or ought to have known was impermissible
under the Plaintiff's terms of use of its copyright protected material; and

m) The Defendant's agent imgroperly notified Alex Binkley, Kaven Baker-
Voakes, Dale Smith, Mark Bourrie and Justin Linq that they could
withdraw evidence regarding Blacklock's ownership of articles which then
authored.

36. The Plaintiff reserves its right to amend its pleading based upon discovery of
other instances of unauthorized disclosure of its copyright protected content by
the Defendant.

37. The Plaintiff pleads and relies upon the Copyright Act, R.S.C., 1985, c. C-42.

January 24, 2017
Amended Julv XX, 2018

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

Scott Miller
Deborah Meltzer

Tel: 613-567-0762
Fax: 613-563-7671

30
40

•'

e~

~~, •

31