order re amended defence t-1391-14 order 26-oct-2015

7/23/2019 Order Re Amended Defence T-1391-14 ORDER 26-OCT-2015

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Date: 20151026

Docket: T-1391-14

Ottawa, Ontario, October 26, 2015

PRESENT: Case Management Judge Mireille Tabib

BETWEEN:

1395804 ONTARIO LTD.,

OPERATING AS BLACKLOCK'S REPORTER

Plaintiff

and

CANADA (ATTORNEY GENERAL)

Defendant

ORDER

UPONthe Defendants motion for:

1. An Order under Rule 292, to have this action proceed as a regular action

notwithstanding that the relief claimed is under $50,000;

2.

An Order allowing the Defendant to amend his Statement of Defence in the form

attached hereto as Appendix 1;

3. An Order directing the Plaintiff to provide the Defendant with a further and better

affidavit of documents;


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4. An Order directing the Plaintiff to provide answers or better answers to the

questions refused on the February 9, 2015 examination for discovery;

5.

With costs to the Defendant payable forthwith and in any event of the cause; and

6. Such further and other relief as this Court may deem just.

CONSIDERING the Plaintiffs consent to an Order allowing this action to continue as

an ordinary action notwithstanding Rules 292 and following.

CONSIDERINGthe parties respective motion records, having heard counsels

representations at the hearing and having ruled from the bench and given reasons substantially as

follows:

Motion to amend:

The defence that the Defendant seeks to raise, based on abuse of copyright, is novel but

as the Plaintiff itself recognizes, the door has been opened and there is no case law that traces the

outer limits of that defence. The Plaintiff makes a spirited argument that the proposed defence is

based on three elements: teaser, use of ATIP request and speculative invoicing, none of which

are unlawful or tortious. However, I think that this mischaracterizes the allegation. The

allegation also includes that the teaser often includes incorrect or misleading information and is

designed to interest the department in reading and distributing the articles. The novel doctrine of

trolling is, also, said to sometimes include patterns of behaviour that, taken individually, are

entirely lawful but which, in the way and circumstances in which they are used, become abusive.

Finally, the argument of counsel for the Plaintiff based on the Bill of Rights and the propriety of

the Attorney General pleading use of ATIP requests as part of an unlawful scheme certainly does


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not rise to my mind to the level that it makes it plain and obvious that the proposed defence

cannot success. Again, I am not certain that it is fair to characterize the scheme alleged by the

Defendant as being founded on the use of ATIP requests. The ATIP requests are one of the

factual steps alleged but may not be an essential step; one has to give a fair and wide reading to a

proposed defence. It is not my purpose to say whether the argument of the Plaintiff will

eventually be well founded or not. At this point, what the Plaintiff had to do was to satisfy me

that the proposed defence does not have a scintilla of a chance of success or that it is so clearly

improper that it should not be permitted. I am not satisfied that this is the case.

It was not the Plaintiffs argument that lateness and costs associated with a late

amendment are such that the amendment should not be permitted. The Plaintiffs position was

that, if the amendment is permitted, prejudice could and should be compensated by costs.

On the conditions of the amendment:

I agree that the motion could have been brought earlier. However, I am not satisfied that

it could or should have been brought before the examination on discovery. If there was a delay,

it was a delay after the conduct of the examination on discovery and I dont see that this delay

has been prejudicial, in costs, to the Plaintiff. It does not make sense to account for a time delay

by awarding costs when delay has not translated into duplicative or unnecessary procedural

steps. Most of the refusals were argued based on damages rather than based on their relevance to

the amendments. What was conceded as being relevant because of the amendment is a very

small portion of the refusals. That leaves me to conclude that there would have been a further

examination for discovery or follow-up examination for discovery in any event. I cannot, at this

time, identify any proceeding that has been made necessary as a result of the amendment and that


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requires compensation in costs. I leave to the Judge on the merits the determination of any costs

that should be specially awarded, or awarded differently from the outcome, on the basis of the

amendment, including costs of filing a reply or amending the reply, if already filed.

Motion to compel:

Questions 101 and 108 seek approximate numbers and are relevant. They serve to

understand the nature of the business of the Plaintiff and situate the revenues from group

subscriptions in relation to other subscriptions.

The Plaintiff withdrew its objection to Questions 161 and 162 and has already provided

an answer. Follow-up may of course be had on that answer.

Questions 183 to 185, 188 and 194 are all relevant and clearly seek to obtain examples of

licensing agreements. The questions clearly require provision of representative samples of

licensing agreements entered into by the Plaintiff. Even if the Plaintiff felt that everyone of its

licencing agreements were completely different from the others, such that a cross-sampling

would not yield something vaguely representative, the question would still require an answer, in

the form of production of all agreements. The Plaintiff is not dispensed from providing its

information, knowledge and belief of its own documents or information on the basis that the

information may be in the public domain or accessible to the Defendant, or that they are

commercially proprietary.

Although the Plaintiff withdrew its objection to Question 195, it only answered the

second part. It must answer the first part as well.


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After attempting to construe questions 241 to 244 in an unjustifiably narrow and obtuse

fashion, the Plaintiff eventually undertook at the hearing to provide a full response to those

questions as well as to questions 245 to 247. The record and argument at the hearing also

revealed the Plaintiffs affidavit of documents to be inadequate and in need of being redone.

In respect of question 249, the case law submitted by the Plaintiff does not stand for the

proposition that the Plaintiffs losses of profits are not relevant, or cannot be explored at all on

discovery. In the circumstances, I am satisfied that the profits and profitability of the Plaintiffs

business model are generally relevant and that the question remains proportional.

The first three questions grouped under question 250 are not proper questions, as phrased,

but the fourth one is. It is to be answered to the best of the Plaintiffs information, knowledge

and belief, to the extent the Plaintiff has made the calculations or has formed an informed belief

thereof.

Given that the amendments were permitted, the Plaintiff conceded the relevance of

question 320 and undertook to answer it.

Costs of the motion:

The motion was contested, it was contested extensively and it took a lot of time. There

was a need for cross-examination. In the course of the argument, I made comments to the effect

that the Plaintiffs argument and choice of the way in which it chose to understand questions or

construed questions was obtuse to the point of being obstructive. That informs the portion of the

motion that seeks answers to the undertaking. The motion to amend was contested, it was not


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contested on outrageous grounds but certainly, the motion for production troubled me. That

merits recognition in costs.

The Plaintiff submitted that the costs of the motion should be assessed reasonably at

$2,000. The Defendant submits that the appropriate cost, based on the Tariff, would be $3,049.

That is not a huge difference but the Defendant also brings forward that a written settlement offer

which had an element of compromise, and was not accepted. A portion of the costs of

contestation, including the preparation and the attendance on an examination for discovery that

pertain particularly to the ruling on objections, and part of the hearing do deserve to be

compensated on a double fee basis. So, even considering that costs would have had to be

incurred in any event if the Defendant had to make an uncontested motion, the enhancement due

to the settlement offer brings assessable costs in the range between $4,000 and $4,500. Taking

everything into consideration, costs will be fixed in the amount of $4,000.

THIS COURT ORDERS that:

1. The motion is granted.

2. This action shall continue as an ordinary action, still as a specially managed

proceeding.

3. The Defendant may serve and file its proposed amended Statement of Claim.

4. The Plaintiff shall provide answers to questions 101, 108, 183 to 185, 188, 194,

the first part of 195, 241 to 247 and the last portion of question 250, shall serve a

further and better affidavit of documents and shall submit to follow-up


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examination for discovery on these answers and documents and any other answers

to undertaking.

5. Costs of this motion shall be payable by the Plaintiff to the Defendant in the

amount of $4,000.

6. The parties shall, having discussed between themselves, file written submissions

as to a schedule for the next steps to be taken in this matter, within 10 days of the

date of this order.

Mireille Tabib

Case Management Judge

order re amended defence t-1391-14 order 26-oct-2015

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