Court File Nos.: T-2090-14; T-269-153 T-477-153 T-1234-153 T-1862-153 T-2042-16; T-117-17; T-132-17; T-133-173 T-134317 FEDERAL COURT BETWEEN: 1395804 ONTARIO LTD., OPERATING AS BLACKLOCK’S REPORTER Plaintiff And CANADA (ATTORNEY GENERAL) Defendant MOTION RECORD ATTORNEY GENERAL OF CANADA Attorney General of Canada Department of Justice Canada Civil Litigation Section 50 O'Connor Street, Suite 500 Ottawa, Ontario K1A oH8 Fax: (613) 954-1920 Per: Alexandre Kaufman Sarah Sherhols Tel: (613) 670-6294 (613) 670-6287 Counsel for the DefendantTO: AND TO: Hameed & Farrokzhad ers & Solicitors 43 Florence Street Ottawa, Ontario K2P 0W6 Yavar Hameed Tel: (613) 232-2688 ext 228 Fax: (613) 232-2680 Counsel for the plaintiff Federal Court Thomas D'Arcy McGee Building 90 Sparks Street, Sth Floor Ottawa, Ontario KIA 0H9 Tel: (613) 996-4238 Fax: (613) 952-3653TAB TABLE OF CON’ Notice of Motion dated April 4, 2017 Affidavit of Patricia Suys, affirmed April 4, 2017 A B G H Agreed Statement of Facts, T-1391-14, September 12, 2016 Chart filed during trial, T-1391-14 Chart, exhibit ‘A’ of February 1, 2016 affidavit sworn by Jennifer Jans Letter from Mr. Hameed dated October 15, 2015, T-2090-14 Statement of Defence, T-477-15 Letter from Mr, Hameed dated March 15, 2017, T-477-15 Mareh 23, 2017 email chain between Mr. Hameed and Mr. Kaufman Statement of Defence, T-117-17 Affidavit of Nick Fillmore, affirmed April 3, 2017 Affidavit o' suzane Aboueid, affirmed April 3, 2017 Written Representations of the Defendant, dated April 4, 2017Court File Nos.: 169-153 T-477-153 T-1234-1 T-2042-16; 117-173 T-132-173 T-133-175 T-134317 FEDERAL COURT BETWEEN: 1395804 ONTARIO LTD., OPERATING AS BLACKLOCK’S REPORTER Plaintiff And CANADA (ATTORNEY GENERAL) Defendant NOTICE OF MOTION TAKE NOTICE THAT the Attorney General of Canada will make a motion to the Court on May 2, 2017 at 9:30 am or a soon thereafter as this Court may permit THE MOTION IS FOR AN ORDER: 1. Directing that the action against the Canadian Food Inspection Agency (T-477-15) be allowed to proceed to a motion for summary judgment before any additional steps are taken in these proceedings. 2. Directing the trial of certain issues in common to all proceedings pursuant to Rule 107. Specifically: a. whether 1395804 Ontario Ltd has standing to bring these actions; and, alternatively, b. the quantum of its damages assuming, without admitting, liability3. The costs of this motion. 4. Such other grounds as counsel may advise and the Court permit ‘THE GROUNDS FOR THE MOTION ARE. 1. The Attomey General of Canada's proposal that the next steps in these actions be (1) the determination of CFIA’s motion for summary judgment, and (2) the determination of issues common to all proceedings pursuant to Rule 107, achieves the interest of justice and the just, most expeditious, and least expensive determination of the issues. T-477-15 should proceed to a motion for summary judgment before further steps are taken in these proceedings. 2. Allowing the CFIA action (T-477-15) to proceed to a motion for summary judgment is consistent with the intent of the original stay and would bring about the most just, expeditious, and least expensive determination of this action. 3. On March 3, 2016, this Court stayed nine out of ten Blacklock’s actions (including the CFIA action) pending the determination of the Finance action (T-1391-14). The stay was sought on the basis that the Court's findings in the Finance action would be applied to the remai actions. 4, This Court dismissed the plaintiff's claim in the Finance action in its entirety. The decision conclusively determined that the government was not liable for copyright infringement in circumstances where it receives an article unsolicited and that article is then distributed to a ‘small group of persons who have an interest in it 5. The CFIA action is indistinguishable, in any material way, from the Finance action. Like the Finance action, the CFIA action concerns the receipt of an unsolicited article from a third party that was forwarded to a small group of CFIA employees and consultants who had a direct interest in the article,6. There is no reason for staying the CFIA action in these circumstances. The Court should order the separate determination of issues under Rule 107 in respect of issues common to all actions. 7. Rule 107 provides that the Court may, at any time, order the trial of an issue or that issues in a proceeding be determined separately 8. Here, bifurcating the issues of standing and damages is the most just, expeditious and least expensive way of proceeding. Deciding the issue of standing could resolve all of the actions, 9. The issue of standing is a legal one that requires a narrow factual record. If resolved in the defendant's favo it would resolve all of the actions expeditiously and inexpensively. 10. All of the articles at issue in the actions are authored by either Mr. Korski or freelancers. The Attorney General of Canada's position is that assignments of copyright cannot be made to apply retroactively, and that the plaintiff has no standing to bring these actions. 11. Even if the issue of standing is not resolved in the defendant's favor, the same amount of the parties’ and the Court's time would be required to determine this issue in the context of the trial of an action or in the context of a separate issue. Quantifying Blacklock's damages could facilitate resolution of the actions. 12. Quantifying damages assuming, but not admitting, liability, would: ()) finally determine the value of these actions; (i) allow the parties to make informed choices about the costs that can be justified in pursuing or defending these actions; and, (ii) help facilitate settlement. This approach achieves the just, most expeditious, and least expensive determination of this issue in common,13.In the Finance action decision, this Court already found that Blacklock’s claims disproportionate damages. Damages were not quantified because the action was dismissed. 14, A trial on the damages issue would only require minimal discovery and an estimated two days of hearing to determine the quantum of damages for all of the actions currently before the Court, 15, The parties would have to prepare for and argue the issue of damages for any trial in any event. Having the Court determine the quantum of damages for every case in one trial of this issue would only require marginally more time than would be required for only one case. 16. Federal Courts Rules, SOR/98-106, rules 3, 107 and 385. THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion: 1, The affidavit of Patricia Suys affirmed April 4, 2017, 2. The affidavit of Nick Fillmore affirmed April 3, 2017. 3. The affidavit of Suzane Aboueid affirmed April 3, 2017. 4. Such further material as counsel may advise and this Honourable Court may permit. ATTORNEY GENERAL OF CANADA Department of Justice Canada Civil Litigation Section 50 O'Connor Street, Suite 500 Ottawa, ON K1A OH8 Per: Alexandre Kaufman Sarah Sherhols Tel: (613) 670-6294 (613) 670-6287 Fax: (613) 954-1920 Counsel for the Attorney General of CanadaTO: TO: Hameed Law Barristers & Solicitors 43 Florence Street Ottawa, Ontario K2P OW6 Yavar Hameed Tel: (613) 232-2688 ext 228 Fax: (613) 232-2680 Counsel for the plaintiff Federal Court ‘Thomas D’Arcy McGee Building 90 Sparks Street, Sth Floor Ottawa, ON K1A 0H9 Tel: 613- 992-4238 Fax: 613- 952-3653Court File Nos. 2090-14; ‘T-269-15; T-477-153 -1234-153 T-1862-15; T-2042-1 ‘T-117-173 T-132-173 T-133-175 T-134517 FEDERAL COURT BETW 1395804 ONTARIO LTD., OPERATING AS BLACKLOCK’S REPORTER Plaintiff And CANADA (ATTORNEY GENERAL) Defendant — ———— AFFIDAVIT OF PATRICIA SUYS. 1, PATRICIA SUYS, from the City of Ottawa, in the Province of Ontario, SOLEMNLY AFFIRM that: 1. Tama legal assistant employed by the Department of Justice and I work with Mr. Alexandre Kaufman, counsel who has carriage of these actions. Since I am responsible for organizing all of Mr. Kaufman's files, I have personal knowledge of the matters herein,The Finance action (T-1391-1. 2. ‘The trial of Blacklock’s action against the Department of Finance lasted for five days during the week of September 19, 2016. Before the trial, the parties filed an Agreed Statement of Facts. Attached as exhibit “A” is a copy of the Agreed Statement of Facts. During the trial, a chart was filed on consent. This chart listed the various government institutions’ Blacklock’s subscription dates, email addresses associated with these subscriptions, and the period of time between the subscription date and the Access to Information request. Attached as exhibit “B” is a copy of this chart. . The Attorney General had planned to call seven witnesses. The government later chose not to call two of the witnesses (from the Canadian Broadcasting Corporation and the University of Ottawa) it had subpoenaed in order to finish the trial within the five days. 1 am advised by Sarah Sherhols, co-counsel on this file, and verily believe, that the government spent approximately $165,000 in professional services to defend the Finance action. The government only recovered $65,000. While the finance action proceeded to trial, nine other actions brought by Blacklock’s against the Attorney General were stayed. The total claimed in all ten of these actions was $295,717.81.8. Blacklock’s opposed the Attorney General’s original stay motion that resulted in the Finance matter proceeding to trial while the other nine actions were stayed. 9. In opposing this motion, Blacklock’s filed a chart that contained the names of the authors of the Blacklock’s articles involved in the ten actions. Attached as exhibit “C” is a copy of this chart that was filed as exhibit ‘A’ of a February 1, 2016 affidavit sworn by Jennifer Jans. Request for evidence that authors had assigned their copyright to Blacklock’s 10.0n August 25, 2015 and September 30, 2015, Mr. Kaufman contacted Blacklock’s counsel, Mr. Hameed, requesting evidence that the authors of the articles allegedly infringed had assigned their copyright to Blacklock’s. 11. Mr. Hameed responded by letter on October 15, 2015. This letter and its enclosures are attached as exhibit “D”. The Canadian Food Inspection Agency action (T-477-15) 12, Blacklock’s also brought an action against the CFIA. Attached as exhibit “E” is a copy of the Statement of Defence filed in that action. 13. On March 15, 2017, Mr. Hameed wrote to the Court regarding the Attorney General's proposed motion for summary judgment in the CFIA action. Attached as exhibit “F” is a copy of this letter.Federal Court actions T-117-17; T-132-17; T-134-17; T-133-17 14. Blacklock’s recently brought four more actions against the Attorney General in Federal Court: 117-17; T-132-17; T-134-17; T-133-17. 15. Blacklocks had previously filed these four actions in the Ontario Superior Court. 16. On March 23, 2017, Mr. Kaufman inquired as to whether Blacklocks would discontinue the Superior Court actions as promised. This email chain is attached as exhibit “G”. 17. One of these actions was Blacklock’s action against Health Canada, T-117-17. The Attorney General filed its statement of defence in this Court on March 9, 2017. The statement of defence is attached as exhibit “H”. SOLEMNLY AFFIRMED Before me in the City of Ottawa, in the ) Province of Ontario D) This 4'* day of April, 2017 ) COT. . ) PATRICIA SUYS issioner for taking affidavits ete ud Else Bééard, a Commissioner, et, Province of Ontario, forthe Goverment, Canada, Deparment of Juste, Eire December 7, 2017,THIS IS EXHIBIT “A” Referred to in the affidavit of PATRICIA SUYS Affirmed on the 4th day of April, 2017 issioner for Taking Affidavits, etc. Judit Elise Bédard, a Commissioner, et, Province of Ontario, for the Government of Canada, Department of Justice. Expires December 7, 2017.Court File No. T-1391-14 FEDERAL COURT BETWEEN: 1395804 ONTARIO LTD, operating as BLACKLOCK’S REPORTER, PlaintifE ~and. CANADA (ATTORNEY GENERAL) Defendaint AGREED S IMENT OF FACTS ‘The Plaintiff and the Defendant, by their respective counsel, agree that the following facts are, for the purpose of this action only, not in dispute: Blackdock’s Reporter 1, Blacklock’s Reporter (“Blacklock’s”), the Pla a news agency operating out of a private residence in Ottawa. Blacklock’s reports almost exclusively on federally regulated industries and the Federal Government. Its content is available exclusively online. 2. On October 26, 2012, Blacklock's managing editor told the Ottawa Business Journal the company's break-even point was estimated to be 500 subscriptions at $148 per year or the equivalent ($74,000).In its first year of operations, Blacklock’s revenues were approximately $45,000. The numbered company (1395804 Ontario Ltd.) financed Blacklock’s during that year. Blacklock’s is one business line operated under this numbered company. The numbered company was incorporated in 2001 and is owned and operated by Tom Korski and Holly Doan, Korski and Doan are also the only employees and members of Blacklock's management. Korski is the managing and only editor, whereas Doan is Blacklock’s publisher. Korski’s duties include the coordination of assignments of reporters, continuity of copy and routine administration. Doan is responsible for community outreach and negotiating licenging agreements. Blacklocks’ revenues have gradually increased since its inception in 2012 until today. Tn 2015, Blacklock’s generated approximately $98,000 of revenue per year. Approximately five percent (5%) of Blacklock’s revenue comes from online advertising. The remainder of the revenue comes from either subscriptions/licences paid in advance or from invoices/settlements based on what Blacklock's describes as user's acknowledgement of violations of Blacklock’s terms of use. In 2015, Blacklock’s incurred costs of approximately $53,000 per year. This amount is almost exclusively related to labour costs, as Blacklock’s does not incur costs for rent or publishing print editions. In 2015, Blacklock’s bad approximately seven contractors who contributed stories. Two reporters’ were on retainer and received $1,700 to $2,200 per month as remuneration fron Blacklock’s. One former contractor was accredited to the Press Gallery in exchange for a single story. Another of the reporters has been remunerated through a profit sharing arrangement, 12a B, The Department of Finance 10. The Department of Finance, the Defendant, (“Finance”) assists the Government of Canada in developing and implementing economic, fiscal, tax and financial sector policies and programs. Finance’s responsibilities include the development of tariff policy and legislation U1. Blacklock’s has contacted and received information from Finance's Media Relations Sector in response to its media requests for its articles. 12, However, Finance at no time had either a subscription or licence to Blacklock’. 13."On April 10, 2013, Stephanie Rubec, manager, Media Relations, Finance, wrote Korski an email stating: "What are the chances you would send me your piece once published?" Korski replied, "We did publish that this morning, The finance department ‘ought to subscribe; numerous other departments and Crown agencies do; $148 a year." Rubee replied, "I've asked -- the machine isn't always the fastest in processing requests." Korski replied, "Our office can always set you up right away if the department wants paper billing by invoice. Just forward the request with invoice data to Holly Doan", and cited Doan’s email address. Blacklock’s Subscriptions and Licences 14, Blacklock’s in 2015 had approximately 260 licensees and paid subscribers. The difference between the two is that licences cover multiple users while Blacklock’s Level subscriptions provide access to a single user. 15. Blacklock’s single-reader subscribers in 2015 generated between $4,083 and $6,123 of Blacklock’s revenue, At the relevant time, a Blacklock’s Level subscription cost $148 and granted access to the subscriber for all Blacklock’s content for one year. Between 10 and 15 percent of the 260 Blacklock's clients in 2015, i.e. approximately 26 and 39, were single-use subscribers.16. Blacklock’s Level subscriptions have been purchased electronically by owners of nonitoring2@cra-arc.ge.ca, an account purchased by Canada Revenue Agency staff Sophie Desjardins using the account libraty-bibliotheque@fintrac-canafe.ge.ca; Sharron Drummond using the account he_media_sc@he-segc.ca; and Annie Trepanier using the account government email accounts such as medi services, medin@tpsec-pwese.ge.ca.” 17. On February 3, 2014, Korski requested a comment from Minister Jason Kenney’s office regarding the re-appointment of Brian Johnsion to the Canada Mortgage and Housing Corporation’s (CMHC) board. 18, On February 4, 2014, Charles Sauriol, Senior Media Relations Officer with CMHC responded to Mr. Korski. 19, On February 5, 2014, Blacklock’s published a story entitled “Builder tied to GST scheme wins gov't reappointment”. Blacklock’s sent a marketing email consisting of the headline and the two sentences of the article was sent to Peter De Barros, Vice President of Public Affairs with CMHC, 20. On February 5, 2014 at 10:21 a.m., Charles Sauriol emailed Korski and asked “would it be possible for you to send me a copy of your article”, Korski replied at 10:27 a.m.: “yes, by all means, I’m copying our publisher Holly Doan who manages all copy distribution”, 21. At 12:34 a.m., Holly Doan wrote fo Charles Sauriol and wrote: “Hi Chatles, ‘Thank you for your interest in Blacklock’s Reporter. Apologies, but we area paywalled news service and do not distribute free copy because it would not be fair (o “MPs, departments, government agencies, industry associations and universities who subscribe. 14Backlock’s covers federal affairs not found in mainstream media publications you may not already have”, 22, A “Blacklock’s Reporter” level subscription was purchased online on February 5, 2014 riol@cmhe.ca at acost of $177.41 under account CMHC2014, using email address os: and billing address 700 Montreal Road, Ottawa. 23. Blacklock’s terms and conditions of subscription are posted on its website and accessed through a link at the bottom of the website. Attached as exhibit “A” to this Agreed Statement of Facts is a copy of the Terms and Conditions as they were posted on Blacklocks’ website on April 19, 2013. Attached as exhibit “B” to this Agreed Statement of Facts is a copy of the Terms and Conditions as they were posted on Blacklocks’ website on June 23, 2013. 2d, Blacklock’s licences are customizable. Organizations have either paid the cost of the licence up front, or procured licences retroactively in circumstances where Blacklock’s believed that organizations had breached their terms and conditions. 25, The most Blacklock's has charged for a licence in circumstances where there was no alleged violation of terms of use is $3,925 to the Senate Liberal Caucus. This agreement is for Februaty 22, 2016 to February 22, 2017. The licence granted access to 27 Liberal Senators and permitted proxy readership by each Senator's staff. The caucus could increase or decrease without a change in the fixed fee. 26, With respect to the other categories of licensees, where payments were made in advance (and there were no issues of compliance with terms or conditions), the price of the licences was: a, For unions, approximately $1,500 to $1,900 in annual licence fees. b. For libraries, approximately $500 to $2650 in annual licence fees. c. For law firms, approximately $500 to $900 in annual licence fees.4. For lobbyists, public advocacy groups and research organizations, between $500 and $2900 in annual licence fees. 27. Blacklock’s has also sold licences for $500 per year. Blacklock’s sold a licence to the Canada Broadcasting Corporation (CBC) reference library which granted access to every CBC employee for $157 in September 2014, but this amount was inereased 10 $500 in October 2014, and CBC paid the difference between these two amounts. 28, Blacklock’s has sold multiple user licences at an introductory rate of $500. The University of Waterloo, the University of Ottawa and York University purchased licences with Blacklock’s for the introductory rate of $500. 29. Waterloo’s licensing agreement provides access to Blacklock’s content forall students, faculty, employees and researchers associated with the University of Waterloo Library. ‘The agreement deems individuals who are at the library to be authorized users (ie. walk-in users”). 30. York did not renew its licence beyond the first year. The University of Ottawa renewed its licence and now pays Blacklock's $2650 in annual licence fees. This licensing agreement with the University of Ottawa provides online access to Blacklock’s content to faculty, staff, students and affiliated researchers. 31. Blacklock’s has never sold a licence for $11,470, or more, to an organization in circumstances where Blacklock's had not raised concerns about potential violations of Blacklock’s terms of use. D. Jacklock’s Settlements and Invoices 32. Korski has made Access to Information requests in relation to every subscriber who had a government email address, 33, In just over two years, Blacklock’s has received responses to 24 such Access to Information requests (ATIP). 1634, Following responses to these ATIP requests, Korski has occasionally sent invoices in cases where it believes that there has been a violation of Blacklock’s Terms and Conditions. 35. Blacklock’s alleged that the Privy Council Office, Agriculture Canada, Canada Mortgage Housing Corporation, the Canadian Museum of History, Friends of Canadian Broadcasting, Sietra Club, and the Department of Justice breached its copyright in its articles, 36, Claiming violations of its Terms and Conditions, Blacklock’s sent invoices to the Privy Council Office, Agriculture Canada, Canada Mortgage Housing Corporation, the Canadian Museum of History, Friends of Canadian Broadcasting, Sierra Club, and Department of Justice, 37. The Privy Council Office, Agriculture Canada, Canada Mortgage and. Housing Corporation, the Canadian Muscum of History, and the Department of Justice paid Blacklock's invoices, sent following an alleged violation of the Terms and Conditions. 38, Friends of Canadian Broadcasting and Sierra Club did not pay the invoices, but instead entered into settlement agreements with Blacklock’s after it commenced actions in the Federal Court, 39, Excluding the Friends of Canadian Broadcasting, these entities paid a total $54,663.68, in the petiod 2013, 2014 and 2015 to the Plainti 40. Blacklock's has also sent invoices to Finance, Health Canada, the Canadian Food Inspection Agency, Public Works & Government Services Canada, the Bank of Canada, the Canada Revenue Agency, the Competition Bureau, the agency formerly known as the Canadian Intemational Development Agency, the Canadian ‘Transportation Agency and One Big Campaign for alleged breach of its copyright. ‘These invoices totalled at least $318,696.78. A41. After issuing invoices and not receiving payment of those invoices, Blacklock’s proceeded to litigation against some organizations, including the Canadian Food Inspection Agency, the Privy Council Office, Public Works & Government Services Canada; the Canada Revenue Agency, the Competition Bureau, the Canadian Transport Agency, One Big Campaign, Friends of Canadian Broadcasting, Sierra Club Foundation, and the Canadian Vintners Association. 42. In less than two years, Blacklock’s has initiated at least 18 actions alleging copyright ‘The total infringement. Fourteen of those are against federal departments and agenci the 18 actions currently or previously before the Federal amount of damages elaime Court, the Ontario Superior Court or the Ontario Small Claims Court is approximately $601,892.11. Biacklock’s Articles 43. Blacklock’s articles are almost exclusively paywalled — which means that they are only accessible to paying customers. 44, For a one-year period commencing with the start of the publication in October 2012, Blacklock's made available on its website a ‘digest’ of weeks-old, previously-paywalled article and made them available for free. If Blacklock's makes an article accessible to the public (Le. itis ‘unlocked’, it does not take any copyright enforcement measures if that article is copied or distributed from the date it was unlocked, 45, Blacklock’s posts between 25 and 30 articles per week on its website blacklocks.ca, Korski and Doan produce approximately 40 percent of Blacklock’s content, 46, Blacklock's and its reporters routinely contact and interview federal government employees for comment on stories. 47. Blacklock's rarely provides a free copy of any article to any person who has contributed fo one of its articles whether by providing information or granting an interview, including government employees. 1819 48, Blacklock’s distributes emails comprised of the headline and two sentences that either appear in the article or paraphrase the article. They are routinely sent to an employee of an organization when the article concems the organization or an issue affecting it FF, Blackdocl’s and the Department of Finance 49. On August 20, 2013, Mr. Korski made an Access to Information Request to Finance. for the follow All correspondence and documentation since Oct.23, 2012 on the use and/or distribution of articles from the publication known as Blacklock’s Reporter or its, derivatives Blacklock’s and blacklocks.ca 50. He received a response on September 19, 2013. 51. On September 11, 2013, Holly Doan inquired as to whether Rubec was still interested in a subscription to Blacklock's, 52, That same day, Rubec replied by email as follows: “...unless a subscription to Blacklock’s allows for the circulation of an article within the Department, we cannot subscribe. If you have such a subscription, please let me know.” 53.-Doan replied to Rubee as follows: “Yes, we do have bulk rates as mentioned on the website, Rate is calculated based on how many readers. Let me know how many pairs of eyes, approx, and I will provide an estimate. It’s a sliding scale, the more you buy, the cheaper it gets. ‘54, Rubec futher inquired as follows — “can you provide me with a rate for 500 then for 800?” 55. On September 12, 2013, Doan replied to Rubec’s request by providing a rate card outlining a discount bulk rate of $11,470 for the first 100 subscriptions and a quote of $13,870 for 500 subscriptions total and $15,670 for 800 subscriptions total.10 56. In October 2013, Korski made media enquiries of Finance’s Media Relations for information for the two articles that ate the subject of this action both of which were authored by Korski and for which Blacklock’s owns copyright. 57. Finance issued statements in response to these media requests with a final statement delayed till 7:25 pm on October 9, 2013. 58. On October 10, 2013 a Finance media relations official, Stephanie Rubec, wrote Korski about the article entitled "$30,000,000 Sugar Tax Is Averted": "I trust you received this yesterday at 7:25. The response was delayed since the proper context wasn't provided until well into our email exctianges, Will you be updating the story and removing the no comment?" ‘Sugar Institute, gave an 59. On October 9, 2013, Sandra Marsden, President, Canadit interview (o Blacklock’s for the “$30,000,000 Sugar Tax is Averted”. 60. Sandra Marsden was quoted in both articles. She received an email from Blacklock’s at 9:12am on October 10, 2013 with the headline of the article and the following text: "$30,000,000 Sugar Tax Is Averted ‘A Department of Finance error that meant a $30 million sugat tax is being remedied following appeals from industry. A trade group said a mistaken tariff hike on Brazilian imports would have forced the closure of at least one Canadian ‘sugar refinery: "We would have been a casualty." Read more, 61. Marsden would not have been able to “read more” without subscribing, She purchased a“Blacklock’s Reporter Level” subscription within minutes of receiving the marketing email 62, Sandra Marsden sent Patrick Halley, Senior Chief, Tariff and Trade Policy of the International Trade Policy Division, Finance, the two articles that are the subject of this action,ut 63. In the October 10, 2013 email forwarding the “$30,000,000 Sugar Tax is Averted”” aiticle to Patrick Halley, Marsden told Halley that she had been interviewed but that “Most of the facts are accurate although I'm not all happy with the spin- obviously I wouldn’thave characterized this as a “sugar tax” nor a Department of Finance “error 64, The article entitled "It Didn't Make Sense" originally published October 11, 2013 and forwarded by Patrick Halley that day, was made available to the public for free in a "digest" available on the blacklocks.ca website on November 25, 2013. 65. On October 18, 2013, Mr. Korski made another Access to Information Request to Finance for the following: All emails, communications, reports, electronic Tinks, citations and/or documents of any kind containing the words “sugar” and “tariff” from October 8 to October 16, 2013 and any emails communications, reports, electronic links, citations and/or documents regarding news coverage of the sugar tariff in the same Oct.8-16,2013, period, 66. He received a response on February 5, 2014. 67. Blacklock’s on February 8, 2014 contacted Finance seeking an explanation of the concluet that is the subject of this action, and received no reply. On February 14, 2014 Blacklock’s again contacted Finance and received a notice that Mr. Halley would be out of the office until February 27, 2014. On February 19, 2014, Blacklock’s sent Finance a $17,816.71 invoice for the alleged breach ofits copyright in the two articles that are the subject of this action, On March 18, 2014, in response to Blacklock’s invoice, Finance offered to pay Blacklock’s $471.00, the equivalent of three Blacklock’s Reporter Level subscriptions, on March 18, 2014, 2122 12 G. Authenticity of Documents Admitted 68, The parties admit for the purposes of this proceeding only, the authenticity of the following documents: 1. All documents in the Plaintif’s Affidavit of Documents and Amended Affidavit of Documents and Supplementary Affidavit of Documents. 2. All documents in the Defendant’s Affidavit of Documents, Amended Affidavits of Documents and Supplemental Affidavit of Documents. 69. For greater clarity, the parties agree that the documents contained in the Joint Book of ‘Documents filed in these proceedings on September 12, 2016, are authentic and, in the case of emails, are evidence that the email was either sent or received by the persons named in the email. The parties agree to argue the weight, significance, the relevance and admissibility to be given to the documents during argument. Séptemberl2, 2016 William F. Pentney, Q.C. Deputy Attomey General of Canada Pér: Alexandre Kaufman Orlagh O’Kelly Department of Justice Canada Civil Litigation Section St Floor, 50 O°Connor Street Ottawa, ON KIA 0H8 Tel: (613) 670-6294 Fax: (613) 954-1920 Solicitors for the Defendant23 September 12, 2016. facklock"€ Reporter, per Yavar Hameed Hameed law Barristers and Solicitors 43 Florence Street Ottawa, ON. K2P 0W6 Tel: (613) 232-2688 ext 228 Pax: (613) 232-2680 Solicitor for the PlaintiffAppendix “A”AECLIHS BU COHUUUHD | DIALRLULR > KEpULtet rage 1 uLe <19> ict ws BLACKLOCK'S CCH a petra URScRMEMoW HOWE | ABOUT. conTACT ACHIVE save Terms and Conditions ete Sen etre Fanon grinding ‘We oe Blass Reporte waste fon. 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