328

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

Blacklock's Supplemental Written Representations

(Plaintiff's motion to amend)
 329

SUPPLEMENTAL ARGUMENT

NO PREJUDICE —WITHIN ACTIONS ARE AT THE PLEADINGS STAGE

1. The Plaintiff has only been served with an affidavit of documents in one of the within
actions (T-943-17 National Energy Board).

2. The Defendants have yet to conduct discovery in any of the actions. If the Plaintiff's
proposed amendments are allowed, the Defendants will suffer no prejudice —the
Defendants have not pursued any action beyond the pleadings stage.

INTEREST OF JUSTICE —STREAMLINING ISSUES

3. If the Plaintiff's proposed amendments are allowed, there is a greater propensity that the
within actions will be streamlined. For example, the Plaintiff maintains that fair dealing
does not apply to the circumvention of technological protection measures.

T-1391-14 (FINANCE) DECISION IS SUPPORT FOR THE PROPOSED AMENDED

PLEADINGS

4. The affidavit of Kassandra Cormier, affirmed on October 11, 2018, relied upon by the
Attorney General of Canada ("AG"), reviews the decision in Federal Court File No. T-
1391-14 (the "Finance Case").' Respectfully, the merits of the Finance Case should
have little to no bearing on this motion to amend pleadings. The Plaintiff's proposed
amended pleadings are deemed to be true.2

5. Regardless, the facts in Finance Case are wholly different from the within actions. The
agreed statement of facts in the Finance Case reveal that the Department of Finance

Affidavit of Kassandra Cormier, affirmed October 11, 2018 ("KC Aff"), paras. 10-15, Responding Motion
Record of the Attorney General of Canada, ("AGMR"), Tab 1, p. 4.
2 Savanna Energy Services Corp v Technicoil Corp, 2005 FC 842, 40 CPR (4th) 237 at para 14,
Blacklock's Book of Authorities ("BBOA"), Tab 15.

1
 330

never purchased a Blacklock's subscription. In addition, there was no sharing of login

information in the Finance Case.3

6. The facts in the Finance Case do not fit within the definition of circumvention of a
technological protection measure as per the proposed amended claims.

7. In the Finance Case, previous counsel for Blacklocks sought to argue section 41 of the
Copyright Act (Technological Protection Measures). Justice Barnes noted: "...based on
the agreed statement of facts...wouldn't fallen in section 1 —section 41...the defendant
can't be expected to guess about the provisions...there was an obligation to plead the
section. , .l'm not going to entertain an argument that there has been a breach of section
41 of the Copyright Act". 4

8. Justice Barnes makes it clear that it is necessary to amend the within actions to claim
circumvention of a technological protection measures.

9. Moreover, iri the Finance Case, Justice Barnes specifically states the following: "Nothing
in these reasons should however be taken as an endorsement of arguably blameworthy
conduct in the form of unlawful technological breaches of a paywall, misuse of
passwords or the widespread exploitation of copyrighted material to obtain a commercial
or business advantage." 5

3 KC CX, Ex. 5, BSMR, Vol. 6, Tab 1-E, p. 123.

4 Transcripts from Proceeding T-1391-14 before the Honourable Justice R. Barnes on September 19th,
2016, AGMR, Tab 2, p. 234.
5 1395804 Ontario Ltd v Canada (Attorney General), 2016 FC 1255, 2016 CarswellNat 5931 at para 45,
Blacklock's Supplemental Book of Authorities ("BSBOA"), Tab 3.
 331

AFFIDAVIT OF AG WITNESS SHOULD NOT BE GIVEN ANY WEIGHT

Ms. Cormier's affidavit is misleading

Misconstruing Mr. Hameed's email

10. At paragraph 29 of Ms. Cormier's affidavit, specific portions of Mr. Hameed's email of
July 17, 2017 (Exhibit R) are reproduced.s Mr. Hameed is former counsel to the Plaintiff.

11. The Plaintiff asserts that reading the excerpts in paragraph 29 of Ms. Cormier's Affidavit
in isolation changes the understanding of Mr. Hameed's sentences. The below table
compares the content:
Paragraph 29 of Ms. Cormier's Affidavit Mr. Hameed's email (Exhibit R)
Mr. Hameed wrote "the process of cross- As the process of cross-examination is not
examination is not court mandafed or court mandated or obligatory, it is up to
obligatory" and that (Mr. HameedJ would legal counsel to determine the necessity
"leave it to Mr. Kaufman to contact (them] and extent of cross-examination at their
directly" own discretion. 1leave it to Mr. Kaufman to
contact you directly if he chooses to
examine any or all of you.

12. Ms. Cormier could not explain this portion of her affidavit.'

13. Further, paragraph 30 of Ms. Cormier's affidavit indicates that in Mr. Kaufman's reply
(Exhibit S), he was specifically responding to Mr. Hameed's comment that cross-
examination was not "court mandated or obligatory", rather than Mr. Hameed's email as
a whole.8 There is no content in Mr. Kaufman's email of July 19, 2017 (Exhibit S) that
would suggest that he was responding or correcting a specific comment.

14. Ms. Cormier could not explain this portion of her affidavit.9

6 KC Aff, para. 29, AGMR, Tab 1, p. 9.

Cross-examination of Kassandra Cormier dated November 13, 2018 ("KC CX") q. 78-80, Blacklock's
Supplemental Motion Record ("BSMR") Vol. 6, Tab 1, p. 42.
8 KC Aff, para. 30, AGMR, Tab 1, p 30.
9 KC CX, q. 87-88, BSMR, Vol. 6, Tab 1, p. 45.
3
 332

Erroneous allegation that Mr. Hameed consented to the withdrawal of Dale Smith's affidavit

15. Paragraph 38 of Ms. Cormier's affidavit is based on double hearsay.10 The affidavit
asserts that Ms. Sherhols was allegedly told by Mr. Kaufman of the content of an alleged
meeting between Mr. Hameed and Mr. Kaufman in which Mr. Hameed consented to the
affidavit of Mr. Smith, freelancer, being withdrawn from the Court. Thereafter, at an
unknown time, this meeting was allegedly explained by Ms. Sherhols to Ms. Cormier.
Unfortunately, Ms. Cormier did not know when or where this alleged meeting took
place."

16. Ms. Cormier's affidavit includes a short excerpt from the hearing dated September 18,
2017 before Madame Prothonotary Milczynski.12 The excerpt is merely the argument of
Mr. Kaufman and is not a pronouncement of the Court. The excerpt reads in part: "Dale
Smith withdrew his affidavit when he was asked to attend for cross-examination". The
excerpt fails to include any statement by Mr. Kaufman that he invited Mr. Smith to
withdraw his affidavit. The excerpt fails to include any evidence that Mr. Hameed
allegedly consented to the withdrawal of Mr. Smith's affidavit.

17. Ms. Cormier claims to have listened to the entire audio recording of the September 18,
2017 hearing. When Ms. Cormier was asked if the audio discloses whether or not Mr.
Kaufman advised the Court that he instructed the freelancers that they could withdraw
their affidavits, Ms. Cormier claimed she could not remember.13 Moreover, when asked
if she could remember anything from the audio recording, she was wrongly instructed by
counsel not to answer the question.'a

18. The Plaintiff unequivocally denies that Mr. Hameed consented to Mr. Smith withdrawing
his affidavit.

10 KC Aff, para. 8, AGMR, Tab 1, p. 3.

" KC CX, q. 66-69, BSMR, Vol. 6, Tab 1, p. 39.
12 KC Aff, Ex. AA, AGMR, Tab 1-AA, p. 227.
13 KC CX, q. 105-110, BSMR, Vol. 6, Tab 1, p. 52.
14 KC CX, q. 105-110, BSMR, Vol. 6, Tab 1, p. 52.

D
 333

19. Regardless, the Plaintiff respectfully submits that Mr. Kaufman did not forewarn Mr.
Hameed that he was going to advise the freelancers that they could withdraw their
affidavits.

AG's witness lacked basic knowledge relating to her affidavit

20. Ms. Cormier asserts that she is a legal assistant at the Department of Justice, and has
worked on the files in issue since the summer of 2017.15 Unfortunately, her cross-
examination is a testament to her unfamiliarity with the matters in issue and reveals that
she has little to no knowledge of the material facts in this motion. Ms. Cormier was not
the proper affiant for the AG in this motion.

21. Ms. Cormier's affidavit should be given little to no weight for the following reasons:
a. Despite admitting that she works with Mr. Kaufman (AG co-counsel) and Ms.
Sherhols (AG co-counsel), Ms. Cormier could not recall if either one of them was
present in the office in September of 2018. When pressed, the question was refused
for both of the months of September and October despite the AG's counsel being
advised of Rule 81(2);16
b. Numerous paragraphs of Ms. Cormier's affidavit are based on hearsay. For example,
paragraphs 16, 20, 22, and 38 are based on information provided to Ms. Cormier
from Ms. Sherhols. In fact, paragraph 38 is based on double hearsay — Ms. Sherhols
was allegedly told by Mr. Kaufman of the content of an alleged meeting between Mr.
Hameed and Mr. Kaufman. Thereafter, at an unknown time, this meeting was
allegedly explained by Ms. Sherhols to Ms. Cormier. Unfortunately, Ms. Cormier had
no idea where or when the alleged meeting took place;"
c. Despite the heading in Ms. Cormier's affidavit above paragraph 36, which reads
"Dale Smith withdraws his affidavit', Ms. Cormier did not know whether this
statement was factually correct. Question 123 reads: Q. [...] was Dale Smith's
affidavit withdrawn? Yes or no? From the Court? A. Well, yes, according to this, yes.
Question 126 reads: Q. [...] does the witness know whether or not the affidavit was
withdrawn from the Court record? Yes or no? A. No;18

15 KC CX, q. 8, BSMR, Vol. 6, Tab 1, p. 7.

16 KC CX, q. 55-59, BSMR, Vol. 6, Tab 1, p. 33-34.
"KC CX, q. 66-69, BSMR, Vol. 6, Tab 1, p. 39.
~$ KC CX, q. 123, 126, BSMR, Vol. 6, Tab 1, p. 59, 60.

5
 334

d. Ms. Cormier had no idea what was discussed between Ms. Sherhols and Justin Ling
despite her affidavit including Exhibit W which references a conversation between
the said individuals;19
e. Ms. Cormier had no idea when, why or who gave the instruction to excerpt and
transcribe the particular portion of an audio recording, reproduced in her Exhibit AA,
from the September 18, 2017 hearing before Madame Prothonotary Milczynski;20
f. Ms. Cormier had no idea why paragraph 29 of her affidavit only produced portions of
sentences taken from Exhibit R to her affidavit as opposed to the entire sentences;21
g. Ms. Cormier had no idea why her affidavit at paragraph 30 indicates that Mr.
Kaufman's email found at Exhibit S was allegedly in reply to a particular comment in
Mr. Hameed's email dated July 17, 2017 (Exhibit R) as opposed to the whole of Mr.
Hameed's email; 22
h. Ms. Cormier's affidavit includes the judgment in the Finance Case (Exhibit D).
Despite asserting that she did read the judgment and reasons briefly, Ms. Cormier
was unaware if the Department of Finance had purchased a Blacklock's subscription
or if there was sharing of a password amongst employees of the Department of
Finance. As clearly described in Exhibit D, the Department of Finance had not
purchased a Blacklock's subscription, nor shared a Blacklock's password; z3
i. Paragraph 36 of Ms. Cormier's affidavit is incorrect; it falsely asserts that Mr. Binkley,
a freelancer, was cross-examined. The AG's counsel confirmed that Mr. Binkley was
not cross-examined. It is submitted that the cross-examination transcript establishes
that Ms. Cormier had no idea that Mr. Binkley was not cross-examined but counsel
for the AG refused the question; 24
j. Ms. Cormier had no idea if Mr. Binkley was ever contacted for the purposes of cross-
examination despite her affidavit including Exhibit T which speak to same. Ms.
Cormier also had no idea if telephone conversations between the AG's counsel and
Mr. Binkley took place as to why he was not cross-examined. z5

19 KC CX, q. 102, BSMR, Vol. 6, Tab 1, p. 51; KC AFF Ex. W, AGMR, Tab 1-W, p. 216.
20 KC CX, q. 41-42, 45, 47, BSMR, Vol. 6, Tab 1, p. 17-19.
Z' KC CX, q. 78-80, BSMR, Vol. 6, Tab 1, p. 42.
zZ
KC CX, q. 87-88, BSMR, Vol. 6, Tab 1, p. 45.
23
KC CX, q. 139-140, BSMR, Vol. 6, Tab 1, p. 64; KC Aff, Ex. D, AGMR, Tab 1-D, p. 64.
24
KC CX, q. 91-93; BSMR, Vol. 6, Tab 1, p. 47.
25
KC CX, q. 94-101, BSMR, Vol. 6, Tab 1, p. 50.
 335

k. Despite her affidavit indicating that she was advised by Ms. Sherhols in paragraphs
16, 20, 22 and 38, Ms. Cormier has never spoken to Ms. Sherhols or Mr. Kaufman
regarding any exhibit to the affidavit of Mr. Korski; zs
I. Ms. Cormier was not aware when Ms. Sherhols became co-counsel in these files
despite her Exhibit C indicating that Ms. Sherhols had been co-counsel since at least
as early as June 27, 2016;27 and
m. Paragraph 1 of Ms. Cormier's affidavit indicates that Mr. Kaufman took over the files
from one of his colleagues. Ms. Cormier indicated that no one advised her of same
and when pressed who the colleague was, the question was refused.28

AG's counsel wrongfully refused proper questions

22. Evidence contained in an affidavit must be able to be tested during a cross-

examination.29

23. Ms. Cormier is a fact witness. Despite same, it is respectfully submitted that numerous
wrongful refusals were made during Ms. Cormier's cross-examination. These refusals
further support that Ms. Cormier was not the proper affiant for this motion. In addition to
the above, further examples include:
a. Refusal to admit that Ms. Cormier was a fact witness. The AG's counsel indicated
that confirmation that Ms. Cormier was a fact witness was irrelevant; 3o
b. Refusal to advise whether Ms. Cormier drafted her affidavit;31
c. Refusal to advise who chose the exhibits to Ms. Cormier's affidavit; 32
d. Failure to produce all documents which record the discussions referenced in Exhibit
W of Ms. Cormier's affidavit on the basis that such documents may have potentially
been purged; 33

26
KC CX, q. 111, 114, BSMR, Vol. 6, Tab 1, p. 55.
Z' KC CX, q. 27-28, BSMR, Vol. 6, Tab 1, p. 12; KC Aff, Ex. C, AGMR, Tab 1-C, p.30.
28 KC CX, q. 29-31, BSMR, Vol.
6, Tab 1, p. 12.
29 Bressette v Kettle &Stony Point First Nations Band Council, 1997 CarswellNat 1532 at para 3 (FCT),
BSBOA, Tab 4.
3o KC CX, q. 49, BSMR, Vol.
6, Tab 1, p. 20.
31 KC CX, q. 61, BSMR, Vol. 6, Tab 1, p. 35.
32
KC CX, q. 49, 62, BSMR, Vol. 6, Tab 1, p. 19, p. 37.
33 KC CX, q.
49, BSMR, Vol. 6, Tab 1, p. 23.

7
 336

e. Refusal to indicate if Ms. Cormier spoke with Ms. Sherhols or Mr. Kaufman regarding
correspondence dated July 17, 2017 from Mr. Hameed to Mr. Kaufman and each of
the freelancers in issue in this motion (Exhibit R to Ms. Cormier affidavit); 34
f. Refusal to advise if Ms. Cormier could remember anything from the audio recording
she referenced in paragraph 40 of her affidavit; 35
g. Refusal to advise if Ms. Cormier spoke to Ms. Sherhols or Mr. Kaufman regarding
any correspondence attached as exhibits to her affidavit;36 and
h. Refusal to confirm if Ms. Cormier did not formulate the last sentence at paragraph 29
of her own affidavit. 37

Potential affiant with personal knowledge was available to swear affidavit

24. Rule 81(2) of the Federal Courts Rules provides that where an affidavit is made on
belief, an adverse inference may be drawn where a party fails to provide evidence of
persons having personal knowledge of material facts.38

25. Affidavits made on belief should include an explanation as to why the best evidence was
not provided, unless this is otherwise obvious.39 Where better evidence is available,
meeting the requirement of "necessity" to allow the admission of hearsay evidence
becomes more difficult.40 The failure to provide the best evidence goes to the weight and
probative value of the affidavit. a'

26. Where a lawyer has to give evidence on a motion, it is often acceptable for another
lawyer in the firm to serve as counsel on the motion. Following the motion, the lawyer
who swore the affidavit for the motion can represent the client in future motions and the
hearing on the merits. 4z

3a
KC CX, q. 71-72, BSMR, Vol. 6, Tab 1, p. 40.
35 KC CX, q. 105-110, BSMR, Vol. 6, Tab 1, p. 52.
3s
KC CX, q. 75-76, BSMR, Vol. 6, Tab 1, p. 41.
37 KC CX, q. 78-80, BSMR, Vol. 6, Tab 1, p. 42.
38 Federal Courts Rules, SOR/98-106, r 81(2), BSBOA, Tab 2.
39 Kootenhayoo v Alger, 2003 FC 1128, 2003 CarswellNat 3059, BSBOA, Tab 7.
40 Ottawa Athletic Club lnc v Athletic Club Group lnc, 2014 FC 672, 2014 CarswellNat 2636 at pars 119,
BSBOA, Tab 8.
41 Gould v Lumonics Research Ltd, 1983 CarswellNat 7 (FCA), BSBOA, Tab 6.
'Z Sawridge Band v Poitras, 2011 FCA 310, 2011 CarswellNat 4712, BSBOA, Tab 9.
 337

27. Mr. Kaufman has been co-counsel in the within actions since approximately July 2015. a3

28. Ms. Sherhols is also co-counsel on all the files in issue in this motion and has worked on
the actions in question since at least as early as June 27, 2016. aa

29. In paragraphs 16, 20, 22 and 38 of Ms. Cormier's affidavit, she is advised by Ms.
Sherhols and verily believes the contents therein. as

30. Ms. Cormier could not explain her affidavit with respect to which freelancers were
previously cross-examined. However, Ms. Sherhols has first hand knowledge of the
matters in issue in these cases and was the only person in attendance on behalf of the
AG at Ms. Cormier's cross-examination who knew that Alex Binkley was not cross-
examined on his affidavit. as

31. The aforementioned demonstrates that there were numerous questions posed during the
cross-examination of Ms. Cormier which she was not able to answer based on her lack
of knowledge of the matters in issue for this motion.

32. The Plaintiff is unaware of any reason why Ms. Sherhols or Mr. Kaufman could not
swear an affidavit based on their personal knowledge of the material facts in this matter.
The Plaintiff's efforts to ask questions in this regard were denied during the cross-
examination of Ms. Cormier.47

AG's witness and counsel ignored requests in direction to attend

33. Where a party deliberately does not seek relief from production of documents pursuant
to a direction to attend under Rule 94(2), and unilaterally refuses to make the required
production under Rule 94(1), the party is acting contrary to the Federal Courts Rules.48

43 KC Aff, para. 1, AGMR, Tab 1, p.1

44 KC CX, q. 27, BSMR, Vol. 6, Tab 1, p. 12; KC Aff, Ex AGMR,
C, Tab 1-C, p.30.
a5 KC Aff, paras. 16, 20, 22 and 38, AGMR, Tab 1, p. 6-7, 12.
as KC CX, q. 91, BSMR, Vol. 6, Tab 1, p. 47.
47 KC CX, q. 55-60, BSMR, Vol. 6, Tab 1, p. 33.
48 Gilead Sciences Inc v Canada (Minister of Health), 2016 FC 856, 2016 CarswellNat 5235 at paras 52-
55, BSBOA, Tab 5; Federal Courts Rules, SOR/98-106, r 94(2)-(1), BSBOA, Tab 2.
 338

34. On November 8, 2018, the Plaintiff served on Ms. Cormier a direction to attend.49

35. Despite the requirement to produce the requested documents in her direction to attend
at her examination, Ms. Cormier failed to produce the following documents without
proper justification:
a. The Affidavit of Documents of the AG in each of the actions. The initial refusal to
produce same was made on the basis that such documents are "unwieldly".
Unfortunately, when AG's counsel made that statement, he had no idea that only
in T-943-17 (National Energy Board) did the Defendant provide the Plaintiff an
affidavit of documents and that same was not "unwieldly".50 It is submitted that no
search for the affidavit of documents was made prior to the cross-examination.
On November 15, 2018, two days after Ms. Cormier's cross-examination, the
affidavit of documents in T-943-17 was produced but claimed not to be produced
pursuant to the cross-examination of Ms. Cormier. In doing so, the Plaintiff was
deprived of the opportunity to ask questions relating to same. Specifically, the
Plaintiff could not ask whether or not any other documents would be added if it
succeeds in amending its pleadings to include technological protection
measures;
b. All documents which record the discussion referenced in Ms. Sherhols email
dated August 3, 2017 (Exhibit W —Email to Mr. Ling, Freelancer). Counsel for the
AG admitted that they did not know if the documents which record the discussion
referenced in Ms. Sherhols email dated August 3, 2017 (Exhibit W), requested in
Ms. Cormier's direction to attend, had been purged or not. 51 No search for these
documents was made prior to the cross-examination; and
c. The complete transcript from the hearing before Madame Prothonotary
Milczynski held September 18, 2017 (produced in part —Exhibit AA to the
affidavit of Ms. Cormier). Counsel for the AG's reason for not producing the
transcript was that they do not have it and have no obligation to produce the
audio recording of the hearing.52 Ms. Cormier did not know who gave the
instructions to transcribe only a portion of the audio recording, could not give a
clear answer as to how she knew the entire audio recording was not transcribed

49 KC CX, Ex. 1, BSMR, Vol. 6, Tab 1-A, p. 67.

5o
KC CX, q. 52, BSMR, Vol. 6, Tab 1, p. 27.
51
KC CX, q. 49, BSMR, Vol. 6, Tab 1, p. 23-24.
5z
KC CX, q. 37, BSMR, Vol. 6, Tab 1, p. 16.

10
 339

and did not remember who gave her the excerpt included in her affidavit. 53
Subsequent to the cross-examination, counsel for the Plaintiff again requested a
copy of the audio of the hearing. Counsel for the AG denied this request,
changing the basis of his objection by noting that the recording was subject to
copyright and that they are not permitted to copy it. A party to a proceeding is
permitted to produce 2 additional copies of an audio recording of the Federal
Court. Further, upon written consent from the Court, a party may distribute same.

COUNSEL FOR THE AG'S TRANSGRESSION DURING CROSS-EXAMINATION OF THE

PLAINTIFF'S WITNESS

Inappropriate questions

36. Counsel for the AG's cross-examination of Mr. Korski was fundamentally based on the
merits of the case and ignored the purpose of this motion. For example, questions #204-
#212 of Mr. Korski's cross-examination relate to Mr. Korski's contribution to Blacklock's
articles.54 The within motion to amend is not the appropriate forum for questions relating
to the merits of the claims. The Plaintiff's proposed amended pleadings are deemed to
be true. To succeed in disputing the Plaintiff's proposed amendments, the AG must
prove that it is plain and obvious that the amendments will fail. 55

37. Counsel for the AG put wholly irrelevant and inappropriate questions to the Plaintiff's
witness during his cross-examination. These questions included asking Mr. Korski:

a. To identify the Prothonotary (Madame Prothonotary Milczynski) in a picture; 5s

b. To identify himself (Mr. Gay) in a picture;57
c. To identify Holly Doan (Mr. Korski's wife) in a picture;58
d. To identify Mr. Kaufman in a picture;59
e. If Mr. Korski purchases courses from CPDonline.ca; so

53
KC CX, q. 42-45, BSMR, Vol. 6, Tab 1, p. 18.
S4 TK CX, q.204-212, BSMR, Vol. 6, Tab 2, p. 208.
55
Davydiuk v Internet Archive Canada, 2016 FC 1313, 2016 CarswellNat 6526 at Para 41, BBOA Tab 6.
5s TK
CX, q.121-123, BSMR, Vol. 6, Tab 2, p. 181.
57 TK CX, q.151-152, BSMR, Vol. 6, Tab 2, p. 191.
58 TK CX, q.111, BSMR, Vol. 6, Tab 2, p. 176.
5s TK CX, q.124, BSMR, Vol.
6, Tab 2, p. 182.

11
 340

f. If Mr. Korski purchased a module, a course or a credit on a primer of the law of

arbitration -questions to the same effect were asked at least three times; 61
g. More specifically, if he purchased any arbitration course that Mr. Kaufman and he
(Mr. Gay) would have offered through the Toronto Lawyers Association; 62
h. If Mr. Korksi has a "tweet account";63 and
i. Whether Holly Doan is an active tweeter. sa

Ambushing the Plaintiff's witness

38. During Mr. Korski's approximate one hour and a half cross-examination, counsel for the
AG put 17 documents to Mr. Korski. The Plaintiff is unaware of any reason why these
documents were not included in the AG's material by way of Ms. Cormier's affidavit to
ensure that Mr. Korski would not be taken by surprise.

39. Cross-examination on a document put to a witness can only proceed if the witness first
confirms that they know of or recognize the document. s5

40. It is respectfully submitted that the AG deliberately chose to ambush Mr. Korski by
presenting him with documents which he had not seen prior to his cross-examination.
Notwithstanding same, and despite objection, counsel for the AG pursued questioning
Mr. Korski on documents he had not seen before his cross-examination.ss Moreover,
despite objection, the AG improperly entered some of these documents as exhibits as
opposed to marking them for identification purposes only. s' Examples include:
• Ex 8 -Holly Doan Twitter page;68 and
• Ex 9 -ARTICLE: November 13, 2017 The Role of In-House Counsel in
Arbitration.sg

so
TK CX, q.156, 158, BSMR, Vol. 6, Tab 2, p. 194-195.
61 TK CX, q.157, 159, 161 BSMR, Vol. 6, Tab 2, p. 194 -196.
sz
TK CX, q.160, BSMR, Vol. 6, Tab 2, p. 195.
s3
Cross-examination of Tom Korski, dated November 13, 2018 ("TK CX") q. 107, BSMR, Vol. 6, Tab 2, p.
175.
sa
TK CX, q.109, BSMR, Vol. 6, Tab 2, p.176.
s5 Sierra
Club of Canada v Canada (Minister of Finance), [1998] CarswellNat 2273 at pars 13 (FCT),
BSBOA, Tab 10.
ss
TK CX, q. 81-86, 91-97, 98-105, 106-118, 139-149, 150-154, 155-164, 304-307, BSMR, Vol. 6, Tab 2,
169, 171, 174, 175, 185, 191, 194, 239.
~' TK CX, q.106-118, 138-149, BSMR, Vol. 6, Tab 2, p. 175, 185.
68 TK CX, Ex. 8, BSMR, Vol. 6, Tab 2-H p. 264; TK CX, q. 116-118, BSMR, Vol. 6, Tab 2 p. 178.
69 TK CX, Ex 9, BSMR, Vol. 6, Tab 2-I p. 267; TK CX, q. 149, BSMR, Vol. 6, Tab 2 p. 189.

12
 341

THE PLAINTIFF IS ENTITLED TO COSTS

41. Rule 97 of the Federal Courts Rules allows the Court to order a party to pay the costs of
an examination in the event of misconduct.

42. For the reasons stated above, the Plaintiff submits that counsel for the AG acted
inappropriately during the cross-examination of Mr. Korski and was put on notice that the
Plaintiff would be seeking costs accordingly.70

ALL OF WHICH IS RESPECTFULLY SUBMITTED

43. DATED AT Ottawa, Ontario, this 26`h day of November, 2018.

M In Ilectual Property Law LLP

275 Sla~r Street, 14th Floor
Ottawa ON K1P 5H9

Scott Miller
Deborah Meltzer

Tel: 613-567-0762
Fax: 613-563-7671
smiller(c~mbm.com
dmeltzer(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: Alexander Gay and Sarah Sherhols

70 TK CX, q.149, BSMR, Vol. 6, Tab 2, p.189.

13
 342

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: Alexander.GayCa.justice.gc.ca
Sarah.Sherhols Ca~justice.gc.ca

Solicitors for the Defendant

AND TO: THE LIBRARY OF PARLIAMENT

Per: Jay Kerr-Wilson and Stacey Smydo

Fasken
1300-55 Metcalfe St.
Ottawa ON K1P 6L5
Tel: 613-696-6879
Fax: 613-230-6423
Email: jkerrwilson(a~fasken.com
ssmydo(a~fasken.com

Solicitors for the Defendant

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

Solicitors for the Defendant

AND TO: VIA RAIL

Per: Bob Sotiriadis

Robic, LLP
1001 Square-Victoria, Bloc E, 8th fl,
Montreal QC H2Z 267
Tel: 514-987-6242
Fax: 514-845-7874
Email: sotiriadis(a~robic.com

Solicitors for the Defendant

14