Federal Court of Appeal takes novel approach to granting interveners’ motions

“In certain well-trodden areas of law, the Court does know the law,” wrote Federal Court of Appeal Justice David Stratas in his recent decision in Teksavvy Solutions Inc. v. Bell Media Inc.

“So why shouldn’t it just announce the law at the outset, inviting the parties to correct or supplement it if necessary? There are many ways this can be done,” he continued. “One way is to issue a written direction at the outset of a dispute setting out preliminary views of the law. That is how this Court proceeded in these motions.”

In a novel approach, Justice Stratas decided to grant motions “on a slightly modified version of the usual terms” to the six groups of parties that had moved to intervene in the appeal of the Federal Court’s November decision in Bell Media Inc. v. GoldTV.Biz. (That ruling held in favour of plaintiffs Bell Media Inc., Groupe TVA Inc. and Rogers Media Inc., and issued the first Canadian site-blocking order against websites that contained infringing copyrighted content. Teksavvy has opposed the website blocking order, including on the grounds the court lacked the jurisdiction to grant an order of such type, or should refrain from issuing a blocking order if it did have jurisdiction.)

In his June 24 decision on motions, Stratas divided the six separately represented groups of parties moving to intervene into three groups, which he ordered to file one memorandum of fact and law each.

James Plotkin, a civil litigator at Caza Saikaley LLP in Ottawa and a counsel for intervener The Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic, has seen intervenors voluntarily group themselves together, but not ordered to do so by a court.

 “I think what Justice Stratas is trying to do is achieve efficiencies to … maximize the likelihood of an orderly hearing, in a situation where there are a number of intervenors on both sides of the discussion,” Plotkin told Canadian Lawyer.

Justice Stratas is as the case management judge, and allowed all the intervenors in, grouping a number of the “content” intervenors on one side, “because their submissions are very much aligned and probably significantly overlapping,” says Plotkin.

The content interveners are the Fédération Internationale des Associations de Producteurs de Films--FIAPF; the Canadian Music Publishers Association, International Confederation of Music Publishers, Music Canada and International Federation of the Phonographic Industry; and the International Publishers Association, International Association of Scientific, Technical and Medical Publishers, American Association of Publishers, The Publishers Association Limited, Canadian Publishers’ Council, Association of Canadian Publishers, The Football Association Premier League Limited and Dazn Limited. These organizations support the site-blocking orders.

On the other side there are three intervenors: the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic; the Canadian Internet Registration Authority; and the British Columbia Civil Liberties Association (BCCLA). The submissions of those organizations, which generally do not support the site-blocking orders, “are synergistic to an extent,” says Plotkin. The first two organizations will submit jointly, and BCCLA separately.

Interveners’ memoranda of fact and law are due August 3, says Plotkin, and the FCA’s decision in the case, when it is released, will be much anticipated.

“It’s a case of first impression in Canada on site-blocking orders, and I would say that it's an important case for all Canadians, to the extent that Canadians are subscribers to ISPs and access the internet.”

As for the broader implications of Justice Stratas’s recent decision, “I hesitate to make a prediction,” Plotkin adds, but “I will say that the courts are likely to be cautious in doing this sort of thing unless they can be sure that the parties that they're grouping together have sufficient synergies as between them that it makes sense to group them that way.”