Dockets: T-2090-14
T-1862-15
T-1726-15
T-1234-15
T-1085-15
T-897-15
T-745-15
T-477-15
T-269-15
Citation:
2016 FC 719
Ottawa, Ontario, June 27, 2016
PRESENT: The
Honourable Mr. Justice Gascon
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Docket: T-2090-14
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BETWEEN:
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1395804 ONTARIO
LTD., OPERATING AS BLACKLOCK’S REPORTER
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Plaintiff
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and
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ATTORNEY
GENERAL OF CANADA
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Defendant
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Docket: T-1862-15
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BETWEEN:
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1395804 ONTARIO LTD., OPERATING AS BLACKLOCK’S REPORTER
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Plaintiff
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and
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PARKS CANADA
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Defendant
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Docket:
T-1726-15
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BETWEEN:
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1395804 ONTARIO
LTD., OPERATING AS BLACKLOCK’S REPORTER
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Plaintiff
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and
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LIBRARY OF
PARLIAMENT
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Defendant
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Docket: T-1234-15
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BETWEEN:
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1395804 ONTARIO LTD., OPERATING AS BLACKLOCK’S REPORTER
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Plaintiff
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and
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ATTORNEY
GENERAL OF CANADA
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Defendant
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Docket: T-1085-15
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BETWEEN:
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1395804 ONTARIO
LTD., OPERATING AS BLACKLOCK’S REPORTER
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Plaintiff
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and
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ATTORNEY
GENERAL OF CANADA
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Defendant
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Docket: T-897-15
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BETWEEN:
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1395804 ONTARIO LTD., OPERATING AS BLACKLOCK’S REPORTER
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Plaintiff
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and
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CANADIAN
TRANSPORTATION AGENCY
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Defendant
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Docket:
T-745-15
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BETWEEN:
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1395804 ONTARIO
LTD., OPERATING AS BLACKLOCK’S REPORTER
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Plaintiff
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and
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BANK OF CANADA
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Defendant
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Docket: T-477-15
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BETWEEN:
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1395804 ONTARIO LTD., OPERATING AS BLACKLOCK’S REPORTER
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Plaintiff
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and
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CANADIAN FOOD
INSPECTION AGENCY
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Defendant
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Docket:
T-269-15
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BETWEEN:
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1395804 ONTARIO
LTD., OPERATING AS BLACKLOCK’S REPORTER
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Plaintiff
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and
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ATTORNEY
GENERAL OF CANADA
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Defendant
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JUDGMENT AND REASONS
I.
Overview
[1]
The Plaintiff, 1395804 Ontario Ltd. (operating
as Blacklock’s Reporter) [Blacklock], is appealing nine orders issued on March
3, 2016 [the Orders] by Madam Prothonotary Tabib, imposing a stay of
proceedings in nine different actions [the Nine Actions] filed by Blacklock
against six federal government departments represented by the Attorney General
of Canada [the AGC] and three Crown corporations and agencies [together, the Defendants].
In her Orders, Prothonotary Tabib imposed a stay of the Nine Actions pending
the disposition of a tenth separate case, 1395804 Ontario Ltd (operating as
Blacklock’s Reporter) v Canada (Attorney General), Court File No T-1391-14
[the Finance Action], opposing Blacklock to the Department of Finance. The
Orders issued in each of the Nine Actions are identical.
[2]
In its actions, Blacklock alleges copyright
violations following the dissemination of various articles within the respective
organizations of the Defendants. In her Orders, Prothonotary Tabib concluded
that, in the circumstances, a stay of proceedings in the Nine Actions pending
the disposition of the Finance Action was the option that best achieved the
interests of justice and the just, most expeditious and least expensive
determination of the issues in dispute between Blacklock and the Defendants.
[3]
In its motions filed pursuant to Rule 51(1) of
the Federal Courts Rules, SOR/98-106 [the Rules], Blacklock is asking
the Court to overturn and set aside the Orders, and to allow the Nine Actions
to proceed to trial. Blacklock contends that Prothonotary Tabib erred in failing
to properly apply the factors developed in the case law with respect to stay of
proceedings, in concluding that similar issues were raised and similar evidence
would be led in the different trials, and in relying on irrelevant considerations
such as the risk of contradictory decisions as a ground to order the stays. The
Defendants reply that, on all fronts, Prothonotary Tabib’s Orders were not
clearly wrong and that this Court should therefore not intervene.
[4]
Blacklock’s motions raise the following issues:
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Should the Orders of Prothonotary Tabib be set
aside on the ground that they were clearly wrong?
-
If the Orders are set aside, should the Court
decide, on a de novo basis, that the actions filed by Blacklock be
stayed until the Finance Action is determined?
[5]
For the reasons that follow, Blacklock’s motions
are dismissed. I am not persuaded that that the motions meet the high threshold
imposed on appeals of a prothonotary’s orders issued in the context of case
management decisions and that Prothonotary Tabib’s Orders are based upon a
wrong principle or a misapprehension of the facts. On the contrary, I concur
with Prothonotary Tabib that staying the Nine Actions is in the interests of
justice in this case. Since I find that the Orders are not clearly wrong, I do
not need to review this matter on a de novo basis and to deal with the
second issue raised by Blacklock’s motions.
II.
Background
A.
Facts
[6]
Blacklock is a subscription-based news
corporation that covers politics, bills and regulations, reports and
committees, as well as the Federal Court and public accounts in Canada. It has a
reporter-owned and operated newsroom in Ottawa. The general public cannot
access Blacklock’s articles without a subscription, but single-use or bulk-rate
electronic subscriptions for organizations may be purchased.
[7]
Blacklock has instituted, within a 17-month span
(between June 9, 2014 and November 4, 2015), ten different actions for
copyright infringement, namely the Nine Actions and the Finance Action. Seven
were initiated against various departments or agencies of the federal government,
and three against Crown corporations or agencies, specifically the Canadian
Transportation Agency, the Library of Parliament and the Bank of Canada.
[8]
Blacklock alleges that the Defendants have
unlawfully distributed its articles within their respective departments or
agencies and have breached its copyright after having obtained the articles by
way of single-use subscriptions or through third-party sources. According to
the Defendants, Blacklock employs a pattern of writing misleading or inaccurate
articles about an organization with the expectation that these articles would
be accessed and shared internally. Blacklock then makes Access to
Information Act requests for evidence of distribution, and claims damages
through various means, including litigation.
[9]
Of the ten actions instituted by Blacklock, the
Finance Action is the furthest along. It is one of only three actions
proceeding as a regular action before the Court (the remaining seven actions being
simplified procedures), and it is scheduled for a five-day trial initially set
for June 2017 but which has recently been advanced to September 2016. Prothonotary
Tabib is case managing all ten actions.
B.
Prothonotary Tabib’s Orders
[10]
In her decisions, Prothonotary Tabib ordered the
stay of the Nine Actions until 45 days following the determination of the
Finance Action. She also directed that, upon the lifting of the stays and in
consultation with each other, the parties shall advise the Court as to their
availability for a case management conference to discuss the remaining issues,
and a schedule for further steps to be taken. She further ordered that the costs
of the motion shall be payable by Blacklock to the Defendants.
[11]
In her decisions, Prothonotary Tabib acknowledged
that the facts of each case are different as both the alleged copyrighted
materials and the specific alleged acts of infringement are distinct to each
case. However, she stressed that “commonality and
similarities” reside in the defences raised in the ten actions. These
common defences are: whether Blacklock owns the copyright in the articles
alleged to have been infringed; the novel defence of abuse of copyright; the
defence of fair dealing when articles are copied/used for internal government
reporting purposes; the proper assessment of damages (whether they be loss of
profit apportioned per article or the value of an institutional licence); and
the availability of punitive damages. Prothonotary Tabib also noted that the
amounts claimed in the actions filed by Blacklock are modest, ranging from
$10,000 to $55,000 when they are specified.
[12]
According to Prothonotary Tabib, the
commonalities between claims coupled with the modest amounts sought “cry out for some form of streamlining and a search for
efficiencies” in the case management of Blacklock’s actions. She
expressed the view that the “sound administration of
limited judicial resources” does not rhyme well with proceeding with ten
different trials raising overlapping defences and evidence, “with the attendant risk of contradictory judgments.”
[13]
Prothonotary Tabib then reviewed the procedural
history of the ten actions and the different possibilities explored with the
parties to streamline the proceedings. She noted the lack of cooperation
between the parties and their failure to open their minds to “creative solutions that might have accommodated both sides’
goals.” She observed that the only options left were either the stay of
all actions pending the determination of the most advanced action (i.e., the
Finance Action), or allowing all actions to proceed until the pre-trial
conference. Prothonotary Tabib concluded that, in the circumstances, “the stay of the proceedings is the option that best achieves
the interests of justice and the just, most expeditious and least expensive
determination of the issues.”
[14]
Prothonotary Tabib dismissed the alternative course
proposed by Blacklock, which was to “allow all actions
to proceed until the pre-trial conference, and only then to consider how to
manage the trials.” She indicated that, unless all cases proceed in lock
step or are stayed as they reach the stage of a pre-trial conference, there
will be no opportunity to manage how or when the trials are heard. She added
that a single, consolidated trial on all issues would likely be lengthy and
unwieldy without a concerted effort of the parties to cooperate to narrow
issues and simplify evidence. Even in the best case scenario offered under this
option, she found that the costs of the trials would still remain out of
proportion for the Defendants facing various claims of less than $50,000, that
it would effectively delay the determination of even the most advanced actions,
and that it would deliver limited cost savings to the Court and to Blacklock.
[15]
Prothonotary Tabib further explored the idea of
withholding fixing trial dates pending the determination of a “test” case or group of cases. She however dismissed
this option, stating that “it would still be wasteful
and give rise to an unacceptable risk of contradictory judgments to have four,
five or even two different trials proceed almost simultaneously.” She
remarked that withholding fixing trial dates at a pre-trial conference is
effectively a stay of proceedings but one that would be ordered after full costs
of preparing for trial have been expended in all cases.
[16]
Prothonotary Tabib then explained why, in light
of the foregoing, ordering a stay of the Nine Actions pending the determination
of the Finance Action is the only solution consonant with the interests of
justice. She observed that there is no injustice or prejudice to Blacklock in
the “relatively short delay to the other actions”
that the stay will occasion, as there is no “on-going
harm being suffered by the Plaintiff that would be unnecessarily prolonged by a
stay,” given that Blacklock’s claims are for past damages. She added
that the determination of the Finance Action will lead to a significant
narrowing of the issues, mentioning the principles of issue estoppel
with respect to the AGC Defendants. She also noted that the Finance Action is
the most advanced action as well as a regular action allowing for a thorough contestation
by the parties. She finally mentioned that “a stay is
the only means by which the very real risk of contradictory judgments and a
significant waste of the Court’s resources can be avoided.”
C.
The standard of intervention and the relevant
provisions
[17]
It is well established that on appeals under
Rule 51, orders of a prothonotary ought not to be disturbed and the Court
should not interfere with a prothonotary’s discretion unless the impugned order
is “clearly wrong, in the sense that the exercise of
discretion was based upon a wrong principle or a misapprehension of the facts,”
or if “the prothonotary improperly exercised his or her
discretion on a question vital to the final issue of the case” (ZI
Pompey Industrie v ECU-Line NV, 2003 SCC 27 [Pompey] at para 18; Sport
Maska Inc v Bauer Hockey Corp, 2016 FCA 44 at para 26; Apotex Inc v Eli
Lilly Canada Inc, 2013 FCA 45 at para 4; Apotex v Merck & Co,
2003 FCA 438 [Merck] at para 9). Where the decision of the prothonotary
falls within one of these two categories, the reviewing judge may then exercise
his or her discretion de novo (Seanix Technology Inc v Synnex Canada
Ltd, 2005 FC 243 at para 11).
[18]
When an appeal under Rule 51 relates to case
management decisions, the test is heightened and becomes even more deferential
as prothonotaries who are case managing litigation have “intimate knowledge of the litigation and its dynamics”
and should thus be afforded ample scope in exercising their discretion (J2
Global Communications Inc v Protus IP Solutions Inc, 2009 FCA 41 [J2
Global] at para 16). In such cases, the discretionary decisions of
prothonotaries will only be disturbed if they are based on a wrong principle or
a misapprehension of the facts “that constitutes a
demonstrably clear misuse of judicial discretion” (Turmel v Canada,
2016 FCA 9 [Turmel] at paras 10-11; J2 Global at para 16; Merck
at para 12; L'Hirondelle v Canada, 2001 FCA 338 [L’Hirondelle] at
para 11). The Court will only intervene “with an order
issued by a case management judge acting in that capacity in the clearest case
of a misuse of judicial discretion” (Constant v Canada, 2012 FCA
89 at para 12). The underlying principle is that, “in
the absence of an error of law or legal principle, an appellate court cannot
interfere with a discretionary order unless there is an obvious, serious error
that undercuts its integrity and viability”; this is a “high test, one that the case law shows is rarely met”
(Turmel at para 12).
[19]
Rules 383 to 385 establish the principles
governing the case management process and specially managed proceedings at the
Court. Pursuant to Rule 385(1)(a), a case management judge may “give any directions or make any orders that are necessary
for the just, most expeditious and least expensive determination of the
proceedings on its merits”.
[20]
As far as stays of proceedings are concerned, judicial
officers of the Federal Court of Appeal and of this Court possess the statutory
authority to impose a stay of proceedings pursuant to subsection 50(1) of the Federal
Courts Act, RSC 1985, c F-7 [the Federal Courts Act]. This provision
contemplates two possibilities for granting a stay of proceedings, as follows:
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50 (1) The
Federal Court of Appeal or the Federal Court may, in its discretion, stay
proceedings in any cause or matter
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50 (1) La Cour
d’appel fédérale et la Cour fédérale ont le pouvoir discrétionnaire de
suspendre les procédures dans toute affaire :
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(a) on the ground
that the claim is being proceeded with in another court or jurisdiction; or
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a) au motif que
la demande est en instance devant un autre tribunal;
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(b) where for any other reason it is in the interest of justice
that the proceedings be stayed.
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b) lorsque, pour quelque autre raison, l’intérêt de la justice
l’exige.
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[21]
Paragraph 50(1)(a) gives this Court the
discretion to stay proceedings in situations where a claim filed before the
Court is also being proceeded with in another court or jurisdiction. This is
not the case here as the Nine Actions and the Finance Action were all filed by
Blacklock before this Court. Paragraph 50(1)(b) further grants this Court the
discretion to stay proceedings for any other reason, when it is in the interest
of justice to do so. In the current case, the motion for a stay of proceeding
initially brought by the AGC Defendants was indeed based on this paragraph
50(1)(b) of the Federal Courts Act.
III.
Analysis
[22]
The only question raised by Blacklock’s motions is
whether the Orders of Prothonotary Tabib were clearly wrong, in the sense that
they were based upon a wrong principle or upon a misapprehension of the facts.
Blacklock is not claiming that the Orders relate to a question vital to the
final issue of the Nine Actions.
A.
Blacklock’s submissions
[23]
In support of its appeals, Blacklock essentially
relies on the case of White v Ebf Manufacturing Ltd, 2001 FCT 713 [White],
where the Court crystallized (at paragraph 5 of the decision) a series of
considerations in determining whether a stay of proceedings should be granted
[the White Factors]. Blacklock contends that the concept of the “interest of justice” contemplated by subsection 50(1)
of the Federal Courts Act is not infinitely malleable and ought to be
looked at through the lens of these White Factors.
[24]
Blacklock faults Prothonotary Tabib for not
having conducted a clear and systematic analysis based on an assessment of the White
Factors. Rather than canvassing the White Factors, Prothonotary Tabib
indicated in her Orders that the imposition of the stay was “the option that best achieves the interests of justice and
that the just, most expeditious and least expensive determination of the
issues.” Blacklock submits that, by doing so, Prothonotary Tabib wrongly
resorted to a pragmatic approach which defers to the economic convenience of
the Defendants, understating the prejudice to Blacklock and ignoring the
general principle that a stay is an extraordinary remedy to be exercised only
in the clearest of cases.
[25]
Blacklock further submits that, according to the
White Factors, the onus is on the moving party to establish both a prejudice
to itself and a lack of prejudice to the other party. Where a defendant is
incapable of demonstrating the prejudice it will suffer (apart from financial
inconvenience or “extra expense”) in the absence
of a stay of proceedings, its motion must fail. Blacklock claims that the
Defendants have adduced no prejudice other than an “extra
expense” in having Blacklock proceed simultaneously with the Nine Actions.
[26]
Blacklock also pleads that Prothonotary Tabib wrongly
based her decisions on the principle that the risk of contradictory judgments
militates in favour of granting a stay of proceedings. Blacklock claims that
this element is not captured by the White Factors and runs counter to
the common law principle of stare decisis, which limits the jurisdiction
of a court to adjudicate cases and make decisions solely by the precedents of
higher courts, as opposed to concurrent decisions made by other judges of that court.
Blacklock argues that the “risk” of
contradictory judgments within the same jurisdiction is not a recognized legal
principle justifying a stay, since decisions of the same court, while
persuasive authority, are not binding. Blacklock adds that the White
Factors and section 50(1) of the Federal Courts Act pay special
attention to the possibility of different results in different jurisdictions,
but do not recognize judicial comity as a ground to support a stay.
[27]
Furthermore, Blacklock notes that Prothonotary
Tabib’s Orders recognized that “the facts upon which
liability is alleged to arise are different” in each of the Nine
Actions, and that the evidence to be called in each case by both parties will
not be identical. Blacklock also contends that Prothonotary Tabib erred in
failing to address the question of how issue estoppel would potentially
apply to the Defendants other than the AGC.
[28]
In its submissions, Blacklock further states that
this Court’s prior decisions in Marihuana Medical Access Regulations (Re),
2014 FC 435 [MMAR] and Canada (Attorney General) v Cold
Lake First Nations, 2015 FC 1197 [Cold Lake] provide useful guidance
for analyzing the extent of the discretion available to a prothonotary in
staying an action, but should nonetheless be distinguished. Blacklock points
out that MMAR was a case involving 222 different challenges to the Medical
Marijuana Access Regulations, where the “risk of
contradictory judgments” was not a factor invoked to justify the stay.
In Cold Lake, reference was made to the possibility of “inconsistent outcomes” (at para 20) but Blacklock
submits that the procedural circumstances were so specific to the facts of that
case as to have no applicability in the present case.
[29]
Finally, Blacklock contends that Prothonotary Tabib
failed to exercise her discretion sparingly and “in the
clearest of cases,” and to adopt the judicial restraint built into the exercise
of discretion to order a stay. Because the risk of producing contradictory
judgments is not a legally valid basis to impose a stay, Blacklock argues that the
standalone concern of managing scarce judicial resources was not enough to justify
the Orders.
B.
The Orders of Prothonotary Tabib are not clearly
wrong
[30]
I disagree with the arguments put forward by
Blacklock and I am not persuaded that Blacklock has demonstrated a “clear misuse of judicial discretion” by Prothonotary
Tabib in the issuance of the Orders (Merck at para 12; L’Hirondelle at
para 11).
[31]
I do not find that Prothonotary Tabib was
clearly wrong in any dimension of her analysis and in the exercise of her
discretion to grant a stay of the Nine Actions. There was no misapprehension of
facts nor was she wrong in principle in concluding that the interests of
justice warranted a stay of the Nine Actions and in relying on the considerations
identified in her Orders. On the contrary, Prothonotary Tabib offered an
efficient and cost-saving solution for moving along the litigation in the ten
actions filed by Blacklock (J2 Global at para 16), perfectly in line
with the overarching purpose and objectives of effective case management.
[32]
Prothonotary Tabib was right to expressly base
her decisions on the two governing principles set out respectively in paragraph
50(1)(b) of the Federal Courts Act and in Rule 385(1)(a), namely that a
stay of proceeding was the best option to act in the “interests
of justice” and allowed for the “just, most
expeditious and least expensive determination of the issues.” Stated
otherwise, Blacklock does not meet the high threshold governing appeals of a
prothonotary’s decision; this is not one of those rare cases where the
prothonotary’s findings should be disturbed by the Court.
[33]
I pause to remind that prothonotaries have broad
discretion to stay proceedings in the interest of justice. This is specifically
recognized by Rule 385(1)(a) and paragraph 50(1)(b) of the Federal Courts
Act and is especially true in the context of case management decisions (Turmel;
J2 Global). Contrary to the situation in Merck (at para 13), this
is not a situation where Prothonotary Tabib has fettered the exercise of her
discretion and where the general principle authorizing a case management judge to
give directions necessary for a “just, most expeditious
and least expensive” solution has been used to either deny a legal right
otherwise provided or to override a specific right granted in the Rules.
[34]
More specifically, I find that Prothonotary
Tabib did not commit any error in her treatment of the White Factors,
and that she did not wrongly apply any principle nor misapprehended any facts
in her assessment of the interests of justice justifying a stay of proceeding
in the Nine Actions.
(1)
The White Factors
[35]
Blacklock’s extensive reliance on the White Factors
is misplaced and misguided.
[36]
First, I observe that the White decision
was issued in the context of a stay of proceedings granted under paragraph
50(1)(a) of the Federal Courts Act, not under paragraph 50(1)(b).
Paragraph 50(1)(a) applies to stays where potential adjudications can be made in
two different courts or jurisdictions. The White decision indeed
specifically refers to that situation. This is not the case here. The ten
actions filed by Blacklock are all pending before this Court and the stays were
sought pursuant to paragraph 50(1)(b), not paragraph 50(1)(a). Prothonotary
Tabib was therefore not wrong in principle when she did not specifically mention
nor refer to the White case in her decisions, as this precedent does not
directly govern the stay applications made by the Defendants in the Nine
Actions.
[37]
The White Factors provide guidance where
a stay is sought in the context of related proceedings brought in different
courts. These factors, as described at paragraph 5 of White, are as
follows:
1. Would the continuation of the action
cause prejudice or injustice (not merely inconvenience or extra expense) to the
defendant?
2. Would the stay work an injustice to the
plaintiff?
3. The onus is on the party which seeks a
stay to establish that these two conditions are met;
4. The grant or refusal of the stay is
within the discretionary power of the judge;
5. The power to grant a stay may only be
exercised sparingly and in the clearest of cases;
6. Are the facts alleged, the legal issues
involved and the relief sought similar in both actions?
7. What are the possibilities of
inconsistent findings in both Courts?
8. Until there is a risk of imminent
adjudication in the two different forums, the Court should be very reluctant to
interfere with any litigant's right of access to another jurisdiction;
9. Priority ought not necessarily be given
to the first proceeding over the second one or, vice versa.
[38]
That is not to say that the White Factors
cannot be relied on to provide guidance on the exercise of the discretion to
stay proceedings in the interest of justice under paragraph 50(1)(b) of the Federal
Courts Act. However, even assuming that the White Factors apply to
stays imposed pursuant to the more general provisions of paragraph 50(1)(b), it
is well accepted that these factors are not mandatory, and that the Court need
not adhere to all considerations outlined in White. Furthermore, they
are not exhaustive and need to be adapted to the unique context of each case (MMAR
at paras 17-19).
[39]
This was indeed recently confirmed by the Court in
both Cold Lake and MMAR. In Cold Lake, a stay of parallel
proceedings was granted on four considerations modelled after the White
case, namely the possibility of inconsistent decisions, the similarity of
issues and remedies, prejudice to the parties and the status of each proceeding
(Cold Lake at paras 19-22). Similarly, in MMAR, the Court did not
cite the White case but simply applied considerations which echoed many
of the White Factors and were nearly identical to those in Cold Lake:
whether there is a substantial overlap of issues, whether the cases share the
same factual background, whether the stay will prevent unnecessary and costly
duplication of judicial and legal resources and whether the stay will result in
an injustice to one or more of the parties resisting the stay.
[40]
In MMAR, the Court was satisfied that a
determination of the action furthest along would “clear
away some issues” and “save judicial resources,”
and granted a stay of all other proceedings on that basis (MMAR at para
24). The Court did not see any prejudice in this as, realistically, none of the
other cases would be heard earlier and each party’s situation would remain open
to litigation later if necessary. In the Turmel case (which decided the
appeal of the MMAR decision), the Federal Court of Appeal confirmed that
a stay of proceedings can be granted on considerations of “judicial resources, efficiency and the orderly conduct of
multiple proceedings before this Court” (Turmel at paras 16-17).
[41]
It is thus well settled that the test laid out
in White is flexible, and the case management judge retains a very broad
discretion to determine the weight to be accorded to the various factors
depending on the circumstances of each case. As in Cold Lake and MMAR,
Prothonotary Tabib in fact resorted to considerations mirroring many of the White
Factors to determine that staying the Nine Actions was in the interests of
justice. I therefore conclude that, as far as the White Factors are
concerned, there is nothing clearly wrong in Prothonotary Tabib’s Orders.
(2)
The elements retained by Prothonotary Tabib
[42]
In addition, I find that, even though she did
not specifically refer to the White case in her decisions, Prothonotary
Tabib properly applied the principles enunciated in the Rules and the Federal
Courts Act as well as stemming from the White Factors. In fact, she
echoed many of the elements that have been retained by this Court in MMAR
and Cold Lake in support of a stay of proceeding. Properly applying the
relevant legal principles, even when not expressly referencing the White
decision, is certainly not sufficient to satisfy the high threshold for an
appeal of a case management decision dealing with a stay of proceedings.
[43]
In her Orders, Prothonotary Tabib concluded that
it was in the interests of justice to stay the Nine Actions given that 1) the
issues raised by the various actions significantly overlapped, 2) a stay would
avoid costly duplication of judicial and legal resources, 3) a real risk of
contradictory decisions existed, 4) Blacklock would not suffer prejudice, and 5)
proceeding with the ten actions would cause prejudice to the Defendants. I am
of the view that each of these five considerations fall well within the
discretion of Prothonotary Tabib and that none of them reflects a reliance on a
wrong legal principle or a misapprehension of the facts in granting the stays
of proceedings sought by the Defendants.
[44]
In fact, I am convinced that Prothonotary Tabib was
right to take these factors into account in her assessment of the interest of
justice at stake in this case and in ensuring the just, most expeditious and
least expensive determination of the Nine Actions and the Finance Action.
[45]
First, I agree with the Defendants and
Prothonotary Tabib that there is a significant overlap of issues and facts
between the Nine Actions and the Finance Action, and that this was a proper
consideration to retain. This overlap includes the ownership of copyright by
Blacklock, the defences of copyright misuse and fair dealing, as well as the
proper assessment of damages and the availability of punitive damages. Blacklock
tries to distinguish the Finance Action from the other actions because the
distributed articles were obtained from a third party and not through its
subscription. However, the Finance Action concerns the same pattern of conduct
and core issues as the other actions. In addition, the issue of copyright
ownership in the Finance Action relates to the defence of abuse of copyright
raised in all actions. Lastly, the assessment of Blacklock’s actual damages and
availability of punitive damages is a recurring theme in all actions.
[46]
In Turmel, the Federal Court of Appeal
acknowledged that a stay can be granted in the interest of justice when
proceeding with one action has a significant potential to “reduce the issues in play, clarify those remaining [,]
potentially simplify the litigation for the lay litigants” and “save judicial resources,” and where there is
significant overlap between the various challenges brought (Turmel at
paras 5 and 17).
[47]
Second, Prothonotary Tabib was not clearly wrong
in relying on the avoidance of costly duplication of judicial and legal
resources in support of her decisions. The Orders considered the judicial
resources that would be saved by the stay, such as a multiplicity of pre-trial
conferences and likely procedural motions, and several separate trials resulting
in weeks of hearings. Prothonotary Tabib further estimated that even a
consolidated trial would require at least three weeks and would delay the
determination of even the most advanced actions.
[48]
There was no wrong principle or misapprehension
of facts in singling out this factor to conclude that it was in the interest of
justice to stay the Nine Actions. I note that the unnecessary expenditure of
resources and the costly duplication of judicial and legal resources were indeed
considerations mentioned in both Cold Lake (at para 22) and MMAR
(at para 23). I add that the concern for proportionality voiced by Prothonotary
Tabib in the Orders echoes the need for having procedures better balanced with
the amounts involved in a proceeding and the costs related to the Court process,
which has been expressly recognized and enshrined by the Supreme Court in Hryniak
v Mauldin, 2014 SCC 7 [Hryniak]. In the aftermath of that decision, “favouring proportionality and fair access to the affordable,
timely and just adjudication of claims” (Hryniak at para 5)
certainly bodes well with the interest of justice.
[49]
A determination in the Finance Action will
either settle all issues or narrow them significantly. Even if it only resolves
some of the issues, a stay of proceedings will result in savings because the
parties will not need to spend time and money exploring resolved issues. I observe
that Blacklock has not provided any case law stating that, when considering the
interest of justice in granting a stay, a prothonotary or case management judge
cannot consider the reduction of the number of live issues between the parties
as a relevant consideration.
[50]
Third, I also conclude that the reference to the
risk of contradictory or inconsistent decisions does not reflect the use of a
wrong principle or a misapprehension of the facts by Prothonotary Tabib. I am
of the view that she was entitled to consider this risk of contradictory
decisions under her broad discretion as a case management judge. The possibility
of contradictory judgments is very real here as the ten cases brought by
Blacklock relate to a similar pattern of behaviour, raise the same core issues
and rely on related evidence and facts.
[51]
I acknowledge that the doctrine of judicial
comity only applies to determinations of law and has no application to factual
findings where there is a different factual matrix or evidentiary basis between
two cases (Apotex v Allergan Inc, 2012 FCA 308 [Allergan] at
paras 43-46; Eclectic Edge Inc v Gildan Apparel (Canada) (LP), 2015 FC
1332 at paras 29-32). Indeed, “the doctrine of comity
seeks to prevent the same legal issue from being decided differently by members
of the same Court, thereby promoting certainty in the law” (Allergan
at para 43).
[52]
But it was not clearly wrong for Prothonotary
Tabib to consider this risk in the context of her exercise of discretion and
her assessment of the interest of justice in granting a stay. The issue is not
whether the doctrine of judicial comity could be ultimately invoked in the
determination of the various actions. Nor is it whether the doctrine will lead
to one action being bound or not bound by another decision. The issue is
whether the risk of producing inconsistent judgments can be one of the factors
considered in assessing the interests of justice to grant or deny a stay. I find
no reason to conclude that considering this element was clearly wrong. Indeed, Blacklock
has not provided any authority supporting the proposition that the risk of
contradictory decisions cannot be retained as a legally valid consideration in
determining whether it is in the interests of justice to impose a stay of
proceedings, as contemplated by paragraph 50(1)(b) of the Federal Courts Act.
[53]
Irrespective of the application of the doctrine
of judicial comity, the possibility of contradictory decisions is a
consideration recognized in the case law, such as the “potential
for inconsistent outcomes” mentioned at paragraph 20 of Cold Lake.
Furthermore, such considerations are consistent with the goals of case
management and the broad discretion granted under paragraph 50(1)(b) of the Federal
Courts Act. If any of the Nine Actions proceed to trial, they will benefit
from the legal principles to be decided in the Finance Action, especially
concerning novel legal issues such as abuse of copyright, applying fair dealing
to internal government reporting and the allocation of damages.
[54]
I emphasize that there are numerous common legal
issues raised by the Defendants in the ten actions. The Defendants rely on the
doctrine of abuse of copyright as a basis to justify their assertion that
Blacklock’s actions in a given context amount to copyright trolling. While this
matter will be ultimately determined on the facts adduced in each specific case
as to whether there has been copyright misuse, there are nonetheless common underlying
legal issues being raised. Similarly, while the questions relating to damages,
the value of Blacklock’s license for its product and the defence of fair
dealing are questions where the factual assessment of the evidence will play a
role, they raise comparable underlying legal questions that can be determined
and that could be narrowed in the Finance Action.
[55]
It is true that decisions of the same court,
while persuasive authority, do not constitute binding authority which the Court
is obliged to follow (Allergan at para 46). But, this does not mean that
the risk of inconsistent judgments was not a valid element to consider by
Prothonotary Tabib in the exercise of her discretion and her assessment of the “interests of justice” to grant a stay of the Nine Actions.
Clearly, the White Factors do not exclude factoring this element, even
though they do not expressly refer to it.
[56]
Fourth, on the issue of prejudice to Blacklock,
I again find that no wrong principle has been applied by Prothonotary Tabib nor
was there any misapprehension of the facts. There is no evidence of prejudice
to Blacklock. The stays do not limit Blacklock’s access to the courts and do
not prevent it from pursuing all ten actions. The Orders merely postpone
further steps pending a determination in the Finance Action. There is also no
evidence that any of the Nine Actions could be decided prior to the Finance
Action as it was the most advanced, similarly to the situation in MMAR (at
para 25).
[57]
In addition, I agree with the Defendants that
Blacklock’s arguments to the effect that the value of its media content will
continue to erode as the actions are left without judicial determination and the
underlying violations persist have no merit: Blacklock’s actions and claims of
infringement relate to alleged discrete, past copyright violations dating back
to 2013 and 2014. There is no evidence that staying the Nine Actions could
diminish the value of Blacklock’s content or affect the extent of any past
damages suffered.
[58]
Once again, this absence of prejudice to
Blacklock was a valid consideration retained by Prothonotary Tabib in support
of her conclusion that staying the Nine Actions was in the interest of justice.
In fact, this point has been magnified since the Finance Action will now be
proceeding to trial in September 2016 and not in June 2017.
[59]
Fifth, the prejudice to the Defendants is real
and I am satisfied that Prothonotoray Tabib did not err in considering it in
the exercise of her discretion. The White Factors state that “the prejudice must be more than mere inconvenience or extra
expense.” Assuming that the White Factors apply to this case, I
am not convinced that the Orders were clearly wrong on this point as the prejudice
alleged and demonstrated by the Defendants extends beyond mere extra expenses.
[60]
Here, the prejudice does not only reside in an
additional amount of money to be incurred by the Defendants. The prejudice lies
in the disproportionality between the amounts claimed by Blacklock and the
resources needed to defend multiple actions raising similar issues. There is a
difference between extra expenses related to a proceeding and this
disproportionality. Again, I do not find that Prothonotary Tabib applied a wrong
principle or misapprehended the facts when relying on this element.
[61]
Blacklock attaches great weight to the extraordinary
character of a stay of proceeding and emphasizes, on the basis of the White
Factors, that “the power to grant a stay may only be
exercised sparingly and in the clearest of cases.” However, before even
getting to this element forming part of the White Factors, I note that
the overarching principle governing Blacklock’s appeals is that this Court
should only intervene in discretionary decisions of prothonotaries issued in a
case management context in the clearest cases of misuse of discretion (J2
Global at para 16). This is not the case here.
[62]
I also observe that the “clearest
of cases” principle outlined in White was not repeated in MMAR
or Cold Lake. In MMAR, Mr. Justice Phelan rather stated that “each stay turns on its facts” (MMAR at para
19). Indeed, when asked at the hearing before this Court, counsel for Blacklock
confirmed that he was not aware of any precedent where a stay of proceeding
granted by a prothonotary or a judge was quashed on appeal because such stay
had not been granted in the “clearest of cases.”
[63]
Finally, concerning issue estoppel, I do
not agree with Blacklock that Prothonotary Tabib speculated on this question. The
exact terms of Prothonotary Tabib’s Orders state that “at
least in the respect of cases where the Attorney General is a defendant, the
principles of issue estoppel will likely apply to many issues between
the parties.” This statement clearly indicated that issue estoppel
could help streamline cases where the AGC is a Defendant, but it did not suggest
or imply that this doctrine could apply to the other Defendants.
IV.
Conclusion
[64]
In these appeals, it is not the merits of Blacklock’s
actions that are at issue, but whether there was anything clearly wrong with
Prothonotary Tabib’s Orders staying the Nine Actions. For the reasons detailed
above, Blacklock’s appeals of Prothonotary Tabib’s Orders are dismissed as I do
not find that that any aspect of her decisions is based upon a wrong principle
or upon a misapprehension of the facts amounting to a clear misuse of her
judicial discretion. This is sufficient to dismiss Blacklock’s motions.
[65]
At the hearing, the Defendants asked for an
opportunity to make submissions on costs and the Court’s order will provide
accordingly.
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