Fournier Memorandum 1

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Court File No. A-394-12 and A-395-12

FEDERAL COURT OF APPEAL

BETWEEN:

RICHARD WARMAN and NATIONAL POST COMPANY

Appellants

-and-

MARK FOURNIER and CONSTANCE FOURNIER

Respondents

MEMORANDUM OF FACT AND LAW OF

THE RESPONDENTS, MARK AND CONSTANCE FOURNIER

Mark and Constance Fournier

2000 Unity Rd.Elginburg, ON K0H 1M0

(613) 929-9265

Self Represented


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TO: BRAZEAU SELLER LLPBarristers and Solicitors 55 Metcalfe StreetSuite 750Ottawa ON K1P 6L5

J ames Katz LSUC #: 49046K

Tel: 613.237.4000 ext. 267Fax: [email protected]

Lawyers for the Applicant, Richard Warman

AND TO: CASSELS BROCK & BLACKWELL LLP 2100 Scotia Plaza 40 King Street WestToronto, ON M5H 3C2

Casey M. Chisick LSUC #: 46572RTel: 416.869.5403Fax: [email protected]

J ason Beitchman LSUC #: 564770Tel: 416.860.2988Fax: [email protected]

Lawyers for the Appellant, National Post Company


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BETWEEN:


Appellants

-and-


Respondents



TABLE OF CONTENTS

PART I STATEMENT OF FACTS 4

A. General ... 4

B.The Warman Work . 5

C.The Kay Work 8

PART II ISSUES IN THIS APPEAL .. 9

PART II I SUBMISSIONS 9

A. Full-Text Reproduction of the Kay work ... 9

B. Were the Kay Excerpts a substantial part? .11C. Was the purpose of the Kay Work posting for news reporting? 13D. Was the source and author of the Kay Work credited? ..15E. Was the use of the Kay Work Fair Dealing? ..16F. Continuous or Ongoing Publication A New Argument ..18G. Other Issues .23

PART IV ORDER SOUGHT 27

PART V LIST OF AUTHORITIES .29


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BETWEEN:


Appellants

-and-


Respondents



PART I STATEMENT OF FACTS

A. General

1. The Appellant, Richard Warman is an Ottawa lawyer who is a former employee of the Canadian

Human Rights Commission.1

2. The Appellant Richard Warman states on his website that he has investigated, developed and co-litigated the 3rd-18th complaints under Section 13 of the Canadian Human Rights Act.2

3. The Appellant Richard Warman states that his human rights investigations have attracted widespread

national print, radio and television media coverage and they have also been mentioned in reports to

the United Nations.3

1TranscriptofCrossExaminationofRichardWarman,Volume4,Tab11,p.1375Questions1011022AffidavitofConstanceFournier,Volume1,Tab8A,p.202para.33AffidavitofConstanceFournier,Volume1,Tab8A,p.202para.3


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4. The Appellant Richard Warman also states on his website that he has lectured widely to law

enforcement, universities and NGO groups about hate group activity.4

5. In a website page called Legal Work the Appellant Richard Warman lists the CHRC complaints he

has filed under Section 13 of the Human Rights Act.5

6. Under a section called Media, the Appellant Richard Warmans website contains two pages withapproximately 18 links to news articles about him and interviews with him.6

7. 7The Respondents, Mark and Constance Fournier (the Respondents) moderate an online political

news discussion forum that is accessible, free of charge, to any member of the public.

8. The Appellant Richard Warman is currently engaged in three defamation lawsuits against the

Respondents.8

9. In addition to his thirteen Canadian Human Rights Commission complaints, as of January, 2011, the

Appellant Richard Warman had sued or threatened to sue people at least 62 times.9

10.The Appellant Richard Warmans Section 13 activities have been highly controversial, even

prompting a Canadian Human Rights Tribunal member to write the following, when The Applicant

admitted, after first denying that he participated in messaging on sites he was investigating: The

evidence in this case of his participation on Internet sites similar to the Northern Alliance site is both

disappointing and disturbing. It diminishes his credibility.10

11.The Appellant Richard Warmans activities have generated a lot of discussion all over the internet.

He is a very public figure whose activities have been newsworthy. An assortment of articles can be

found in the exhibits from the Affidavit of Constance Fournier.11

B. The Warman Work

12. On or about July 6, 2005, the Appellant Richard Warman wrote and delivered a public speech called

Maximum Disruption: Stopping Neo-Nazis By (Almost) Any Means Necessary (the Warman Work).12

13.The Appellant Richard Warman delivered the Warman Work speech at a conference held by Anti-Racist

Action, on their invitation.13

4AffidavitofConstanceFournier,Volume1,Tab8A,p.204,lastparagraph5AffidavitofConstanceFournier,Volume1,Tab8A, p.2022036AffidavitofConstanceFournier,Volume1,Tab8A, p.2152167AffidavitofConstanceFournier, Volume1,Tab8,p.192,para.28AffidavitofConstanceFournier, Volume1,Tab8,p.193,para.59SupplementaryAffidavitofConstanceFournier, Volume4,Tab910

AffidavitofConstanceFournier,Volume1,Tab8C, p.344345,para.606411

AffidavitofConstanceFournier,Volume2,TabEandTabF12

AffidavitofRichardWarman,Volume1,Tab7 p.78,para.213

TranscriptofCrossExaminationofRichardWarman,Volume4,Tab11, p.1362Questions2325


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14.Anti-Racist Action is a group that has appeared in the news on many occasions, and have produced

posters and other material that promote violence as a solution for hate. The group itself is both

controversial and newsworthy.14

15.The Warman Work, as it existed on Free Dominion, is a scanned copy of a Canadian Human Rights

Tribunal Exhibit, from the Warman v. Tremaine hearing. It bears the R-3 stamp that is described inthe official transcripts.15 The Warman Work was also an Exhibit in the Warman v. Fromm defamation

case.16

16.The Warman Work has been submitted as evidence for our defence in the three defamation cases the

Appellant Richard Warman has filed against us.17

17.The Appellant Richard Warman is seeking an Order that forbids the Respondents and their lawyer

from possessing the Warman Work, a key piece of evidence in the defamation cases.18

18.The Warman work Tribunal exhibit, in pdf form, was uploaded onto the Free Dominion server on or

about September 2007. It was calledwarman_speech.pdf. A complete search of the Free Dominion

database showed that links towarman_speech.pdfwas only posted to the forum on two occasions,

September 19, 2007 and March 4, 2008. The two links led to the same pdf image both times, and

there were no other publications. 19 A second copy calledmaximum.pdfexisted on the server but was

never accessible by the public.20 The Appellants provided no evidence that themaximum.pdfcopy

was ever shared with the public.

19.The Appellant Richard Warman has not earned any royalties, speaking fees or other earnings from the

Warman Work and he has not given permission to anyone to use it.21

20.The Appellant Richard Warman admits to attending pleasant gatherings, which were actually

violent protests, with Anti-Racist Action in the early 1990s.22

21.The Warman Work itself describes the Appellant Richard Warmans personal strategy of Maximum

Disruption, where he attacks his opponents on various legal fronts at the same time to keep them

off balance and defending themselves. He also says that he finds it fun and, if he finds people

particularly annoying, that he will move them up the list. 23

14AffidavitofConstanceFournier,VolumeI,Tab8C

15Volume3,TabG,p.824

16TranscriptofCrossExaminationofRichardWarman,Volume4,Tab11, p.1363Question30

17SupplementaryAffidavitofConstanceFournier,Volume4,Tab9,p.1273para.37

18TranscriptofCrossExaminationofRichardWarman,Volume4,Tab11, p.1363Questions3537





23AffidavitofRichardWarman,Volume1,Tab7A,p.85,para.4 5


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22.The Appellant Richard Warman admits that he uses the maximum disruption strategy, but says that

he only uses it on neo-Nazis. 24

23.When the Appellant Richard Warman was asked if he considered filing three lawsuits against the

Respondents, complaining to their server host and calling the police on them to be maximum

disruption, he said it could not be because the Respondents are not neo-Nazis.25

24.The Appellants claim that the Respondents wrote on September 1, 2010 that they did not intend to

comply with Mr. Warman's request to cease and desist.26 This is factually inaccurate as no such

statement was made on that thread, in fact the thread was about a different copyright case.27

25.The Appellant Richard Warman states that on January 6, 2011 Mr. Warman discovered that the

Respondents "continued to publish" the Warman Work on Free Dominion.28 In fact, if you go to the

Warman Affidavit29, you will find that what Mr. Warman actually said was that the Respondents had

"again published" the Warman Work. No evidence of a subsequent publication (after September

2007) was presented in the lower court, and the Appellants did not raise an argument of "continuous"

or ongoing publication in the lower court.

26.The Appellant Richard Warman states that, as of June 6, 2011, a copy of the Warman Work was still

posted on Free Dominion.30 The evidence in the Warman Affidavit31shows a link that is non-

functional. In the lower court, Mr. Katz directed Mr. Justice Rennie to that url

(www.freedominion.ca_images_warman_speech.pdf) and said that it was a "renewed infringment" of

the work.32

27.In his Reasons for Judgment, Mr. Justice Rennie rightly states that the Appellants provided no

evidence of a separate publication. The url in Mr. Warman's affidavit was not even in the right

format for an url, and no print-out was provided with that url on it.33

28.In the lower court The Appellant Richard Warman argued that this mythical, non- url was a separate

"renewed infringement". Now he argues that it is evidence of continuing publication.

24 TranscriptofCrossExaminationofRichardWarman,Volume4,Tab11, p.1367Questions5457

25 TranscriptofCrossExaminationofRichardWarman,Volume4,Tab11, p.1376Question105

26 MemorandumofFactandLawoftheAppellantRichardWarman,page6,para.13

27 WarmanAffidavit,Volume1,Tab7,ExhibitJ


29 AffidavitofRichardWarman,Volume1,Tab7,p.83


31 WarmanAffidavit,Volume1,Tab7,p.83para.37

32 LowerCourtTranscripts,Volume4,page1437line18 page1439,line19

33 ReasonsofMr.JusticeRennie,Volume1,Tab3,Page25,para.1617


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C. The Kay Work

29. On or about January 2008, Jonathan Kay wrote an article on the National Post Blog entitled,

J onathan Kay on Richard Warman and Canadas Phony-Racism Industry (the Kay Work).

30. On January 10, 2008, the entire Kay Work was posted to a thread in the Free Dominion forum.34

31.On January 18, 2008 at 8:27pm Mark Fournier posts, "It's gone", noting that article had disappeared

from NP site approximately 6 hours after being posted on Free Dominion.35

32.The Appellant Richard Warman filed a Statement of Claim for Defamation against Jonathan Kay, the

National Post, several other bloggers, and the Respondents on April 7, 2008. The Kay Work was one

of the comments that he complained of, and he said in his Statement of Claim, the Article has been

posted on dozens, if not hundreds of websites around the world.36

33.At the time the Kay Work was posted, the Appellant Richard Warman did not have copyright

assigned to him. Those rights were not assigned until January 13, 2010.37 The licence was presumably

assigned as part of a settlement in the defamation action.

34.On April 16, 2010, the Respondents received notice that the Applicant had acquired copyright control

of the Kay Work and was demanding its removal from Free Dominion. On or about April 18, 2010,

the full article was removed and it was replaced with a short excerpt that was a direct quote from the

Appellant Richard Warmans defamation Statement of Claim.38

35.When the full text of the Kay Work was removed from Free Dominion, it was replaced with an exact

copy of relevant excerpts

39

that came directly from this defamation Statement of Claim.

40

36.The National Post states that they had no knowledge of this proceeding until after the Decision was

rendered.41 However, in a Notice of Application,42 James Katz clearly declares that he and

BrazeauSeller LLP are "Solicitors for the Applicants".

37.In the Memorandum of Fact and Law of the Appellants, The National Post Company, they state that

"The respondents did not at any time in their evidence, or in their written or oral submissions, indicate

where the National Post was credited as the source of the Kay Work, or suggest that the National Post

34MemorandumofFactandLawoftheAppellanttheNationalPostCompany,TabA,p.1

35MemorandumofFactandLawoftheAppellanttheNationalPostCompany,TabA,p.4(lastpost)

36SupplementaryAffidavitofConstanceFournier,Volume4,Tab9A,p.1296para.54

37AffidavitofRichardWarman,Volume1,Tab7,p.79,para.13

38SupplementaryAffidavitofConstanceFournier,Volume4,Tab9,p.1271,para.1820

39AffidavitofRichardWarman,Volume1,Tab7G,pages138139

40SupplementaryAffidavitofConstanceFournier,Volume4Tab9A,p.12941295

41MemorandumofFactandLawoftheAppellant,theNationalPostCompany,p.5,para.15

42NoticeofApplication,Volume1,Tab4,page44


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was so credited.43 In fact, in the Memorandum of Fact and Law of the Respondents, they state that

the "source and author were always given"44.

38.In the Memorandum of Fact and Law of the Appellant, the National Post Company45, page 21,

Section 3.1.2, it is stated that Mr. Justice Rennie erred in concluding that the reproduction of the Kay

Work was for the purpose of news reporting. The purpose was news reporting because the subject ofthe speech, namely the Appellant Richard Warman and the Canadian Human Rights Commission,

was newsworthy. Free Dominion is a forum about political news.

PART I I ISSUES IN THIS APPEAL

A. Did the Application Judge err by finding that the Respondents did not infringe copyright in the

Kay Work both by reproducing the full text of the Work and by reproducing excerpts of the

Work?

B. Did the Application Judge err by finding that the respondents use of the Kay Work was fair

dealing for the purposes of news reporting?

C. Did the Application Judge err by failing to award damages for infringement of copyright in the

Kay Work?

D. Did the Application Judge err in finding the Respondents not liable for copyright infringement of

the Warman Work by reason of the Applicant having commenced his Application of copyright

infringement after the expiry of the three (3) year statutory limitation period set out in subsection

41(1) of the Act?

PART I II SUBMISSIONS

A. Full-Text Reproduction of the Kay work

39.In his decision, Mr. Justice Rennie was not asked to consider if the full text of the Kay Work which

appeared on the website from February 18, 2008 until April 18, 2010 amounted to a copyright

infringement, so he was under no obligation to make that finding. See Notice of Application46

40.In the Notice of Application 47 the Appellant Richard Warman makes it clear that he is referring to the

excerpts, not to the posting of the whole article, as a violation of his copyright.41.When faced with a similar situation inPour-Shariati v. Canada the Federal Court of Appeal stated,

It follows that the Refugee Division cannot be faulted for not deciding an issue that was not raised

before it. The appeal should therefore be dismissed ...48

43MemorandumofFactandLawoftheAppellant,theNationalPostCompany,p.7,para.22

44MemorandumofFactandLawoftheRespondents,Volume4,Tab13,p.1404,para.75

45MemorandumofFactandLawoftheAppellanttheNationalPostCompany,p.21,Section3.1.2

46NoticeofApplication,Volume1,Tab4,page38

47NoticeofApplication,Volume1,Tab4,page42,paragraph27


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42.Also in the Notice of Application49it is noted that the National Post is named as a party "solely to

comply with subsection 36(2) of the Copyright Act" and "takes no active role in these proceedings".

43.For whatever reason the National Post Company did not participate in the case below, it would be

highly prejudicial to the Respondents to overturn Mr. Justice Rennies ruling because it did not

address the National Posts interests because nobody asked him to.44.Mr. Justice Rennie, in his Reasons50, notes that the Respondents argued that the Kay Work was time-

barred, but he found that the Appellant Richard Warman could not have known that his copyright had

been infringed until he acquired the licence for the copyright, so Mr. Warmans Application was

within the time limitation period.

45.This is not the case for the National Post. The Kay Work was posted on Free Dominion on the same

day that it appeared on the National Post website on January 18, 2008 at 2:34pm51. Richard Warman

commenced a defamation action against the National Post and Jonathan Kay over the Kay Work on

April 7, 2008. The Respondents in this Appeal were named as co-defendents in that defamation

action. 52 Therefore, it is unthinkable that the Appellants, The National Post Company, could not have

known about the posting of the Kay Work on Free Dominion by April 7, 2008 if they did not know

before.

46.Since this Application, in which the National Post Company took "no active role", was filed on May

9, 2011, it is clearly time-barred for the National Post Company.

47.Since subsection 41(1) of the Copyright Act states that "a court may not award a remedy" in relation

to a time-barred infringement, the issue as to whether the full text posting of the Kay Work infringed

the copyright of the National Post is also moot.

48.Even if Mr. Justice Rennie had been asked for declaratory relief in regard to whether that initial full-

text posting was a copyright violation, if such a declaration is considered a remedy, the Act clearly

states that he was not permitted to award that remedy. If such a finding of fact isnotconsidered a

remedy, the question is still a moot one.

49.An issue is considered moot "when a decision will not have the effect of resolving some controversy

affecting or potentially affecting the rights of the parties"53

. Because no remedy could be awardedand the text was no longer on the site so there was no need for an order to remove it, the issue was

48PourShariativ.Canada(MinisterofEmploymentandImmigration), 1997CanLII5264(FCA)

49NoticeofApplication,Volume1,Tab4,page43,paragraph34

50ReasonsofMr.JusticeRennie,Volume1,Tab3,page27,paragraph22

51AffidavitofConstanceFournier,Volume2,TabD,page348

52SupplementaryAffidavitofConstanceFournier,Volume4,Tab9A

53Borowskiv.Canada(Attorneygeneral),1989CanLII123(SCC),[1989]1SCR342p.2,para.2


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moot. "The doctrine of mootness holds that a Court should decline to decide cases involving

hypothetical or abstract questions". 54

50.In Epicept Corp. v Canada (Min. of Health), the Federal Court of Appeal exercises its discretion

against hearing and deciding on a moot appeal because, "If we were to hear and decide the issues in

this appeal today in this hypothetical context, we might well affect or even bind parties not before thisCourt today who will wish to argue those issues in a concrete context." 55 This is especially

applicable in this case as this argument was not raised in the lower court so it has not even been fully

argued.

51.Mr. Justice Rennie, in his reasons,56 denies the Applicant's request for an injunction saying that

"...recent cases of this Court and other courts, including those in which an injunction was sought,

have applied the limitation period and denied any remedy".

52.The Supreme Court stated that, "It is clearly illustrated by the rules governing declaratory and

injunctive relief that the courts will not take remedial action where the occurrence of future harm is

not probable." 57

53.Since Mr. Justice Rennie also said in his Reasons, "The applicant has not shown that an injunction is

necessary to prevent further infringement; the evidence is that the respondents have removed the

Warman Work from their server and the physical copies they retain are for the purposes of defending

the defamation action brought against them by the applicant. Thus, I decline to exercise my discretion

and grant an injunction in respect to the Warman Work...",58 it is reasonable to conclude that, even if

he had been asked to make a declaratory judgment, he would have exercised his discretion and

declined to do so.

54.Since the Appellant Richard Warman has also raised an argument of continuous or ongoing

publication, they will be addressed together later in this document.

B. Were the Kay Excerpts a substantial part?

55.In the Memorandum of Fact and Law of the Appellant the National Post Company, page 14,paragraph 51 that Mr. Justice Rennie made an extricable error in law by not applying aforementioned

legal standards in his conclusion that the excerpts of the Kay Work were not a "substantial part" of

the Kay Work.

54Borowskiv.Canada(Attorneygeneral),1989CanLII123(SCC),[1989]1SCR342p.2,para.2

55EpiceptCorporationv.Canada(Health),2011FCA209p.4,para.12

56ReasonsofMr.JusticeRennie,Volume1,Tab3,p.26,para.19

57OperationDismantlev.TheQueen,1985CanLII74(SCC),[1985]1SCR441para.36

58ReasonsofMr.JusticeRennie,Volume1,Tab3,p.8,para21.


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56.InSkoog v Canadian Tire59, it says, "This Court should not presume that the Deputy Judge was not

aware of or failed to apply the appropriate legal test merely because the test is not explicitly set out in

the Judges reasons."

57.This is absolutely the case in this instance as well as we can see from reading Mr. Justice Rennie's

reasons. In the Memorandum of Fact and Law of the Appellants the National Post Company60

, theAppellants list the standards that Mr. Justice Rennie allegedly failed to apply. Below we will list

those standards and point out where Mr. Justice Rennie considered these issues in his Reasons.61

58.a)The "distinctive traits of the original work"

Inparagraph 25, he mentions the "hook" of the article, the summary of facts, and the commentary,

and the original thought. In paragraph 27, he talked about the reproduced portions as a "summary of

facts" and refers to a paraphrased section.

b) Whether there is "sufficient objective similarity" between the reproduction and the original

Paragraphs 25 and 27 discuss the contents of the paragraphs that were copied.

c) Whether the very "essence" or "principle features" are appropriated

In paragraph 27, Mr. Justice Rennie talks about the excerpts being a summary of facts and, in

paragraph 25 he talks about the paragraphs containing the "opening hook" and says that most of the

commentary and original thought is not reproduced.

d) Whether it "comes so near to the original as to give every person seeing it the idea of the

original"

In paragraph 27 he makes it clear that the summary of facts was posted so that members of Free

Dominion could continue to discuss the facts in the forum. Since it was an excerpt from a Statement

of Claim, it obviously did not give anyone the same idea as the original.

e)"Whether the defendent intentionally appropriated the plaintiff's work to save time and

effort"

He addresses this point directly in paragraph 27 where he finds that "It does not appear that the

excerpts of the Kay Work were reproduced to save time and effort".

59.In his reasons, Mr. Justice Rennie obviously considers all of these issues even if he does not explicitlyset out the tests in his Reasons.62

59SkoogvCanadianTire,2013ONSC144para16

60MemorandumofFactandLawoftheAppellantstheNationalPostCompany,,page13,paragraph48

61ReasonsofMr.JusticeRennie,Volume1,Tab3

62ReasonsofMr.JusticeRennie,Volume1,Tab3,page27para2329


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70.In the Respondents' Memorandum of Fact and Law69, they list a few pages of topic titles that were

listed in Exhibits 1 and 2 from the Transcript of the Cross-Examination of Constance Fournier.

Unfortunately, these exhibits have not been included in the Appeal Book, but Mr. Justice Rennie had

that list before him.

71.In the Respondents' oral arguments, they drew the attention of Mr. Justice Rennie to that list again70

.72.It is evident by reading both postings of the Kay article in context that they were posted for news

reporting. In the first case, it is a posting of the news that a well-known public figure who was also

suing the Respondents, was the subject of a critical news article about his activities. If you look at the

defamation Statement of Claim71, you can see that the Plaintiff, Richard Warman says the Kay article

was posted on February 19, 2008 on the National Post site. And, if you turn to page 1282, you will

see that the Respondent Mark Fournier posted most of the same facts on Free Dominion on January

18, 2008. The newsworthiness of the Kay Work was not the contents of the work itself, but rather the

fact that the mainstream media was now reporting on an issue Free Dominion had broken, and that

members had been talking about for a month. Instead of seeking to take trafficawayfrom the

National Post site, readers were urged togo to the National Post site and comment. The article

"became the news" in an even more significant way, approximately six hours later, when it was

removed from the National Post site due to Mr. Warman's libel threats.

73.The articlewasthe news and the original poster was reporting it.

74.The second posting of the excerpts also constituted news reporting. The Appellant Richard Warman

had acquired exclusive copyright licence for the article that was central to a defamation suit in which

the Respondents were parties. It seemed likely that that copyright licence was part of the settlement

agreement between Mr. Warman and the National Post. Mr. Warman demanded that the article,

which was now a court exhibit in our defamation case, be removed from Free Dominion. The

Respondents were reporting this newsworthy turn of events, and, so, posted the excerpts directly from

Mr. Warman's defamation Statement of Claim so that readers could see the defamation claim that

started it all.

75.In the Memorandum of Fact and Law of the Appellants72

, The National Post Company, they citeAllen v. Toronto Star Newspapersand they state that, inAllen, "the purpose of its reproduction of the

cover was to aid in the presentation of a news story". The exact same determination can be made

about the use of the Kay Work on Free Dominion as this court made about the use of Ms Copps


70FederalCourtTranscripts,Volume4,Tab14,p.1462,lines616

71SupplementaryAffidavitofConstanceFournier,Volume4,Tab9A,p.1294,para.47

72MemorandumofFactandLawoftheAppellanttheNationalPostCompany,p.23para8788


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picture. Within six hours of its appearance on the Free Dominion website, the Kay Work was erased

from the National Post site and was no longer available for the public to read. And, when full text

article was removed, the excerpts from the Statement of Claim aided in the presentation of the news

story about the defamation suit and Mr. Warman's copyright claim. It is impossible to tell the story if

readers cannot see the subject of the story. And, the Appellant Richard Warman is using his licenceto ensure that people cannot read even excerpts.

76.The Appellant the National Post Company asserts that the purpose of Free Dominion cannot be for

news reporting because the Fournier Affidavit stated that members can post their own opinions,

discuss and debate the issues.73 I would submit that the National Post website has a spot under nearly

every article where users are allowed to discuss and debate what they have read there, but nobody

would seriously suggest that the purpose of the National Post site is not for news reporting.

77.Mr. Justice Rennie had full Free Dominion threads before him74 where it was obvious that each thread

starts with a piece of news and is followed by (sometimes long) comment and debate. He was also

shown a list of topics from the forum that showed clearly that threads were about news, not about

book reviews or puppies or baking, or something equally unrelated to current events.75 He did not

make this finding in a vacuum.

78.The Appellants have provided no evidence that Mr. Justice Rennie made a "clear error" in examining

the evidence and reaching his conclusion that the purpose was for news reporting.

79.The Appellants quote part of the cross-examination of Constance Fournier where she is being

questioned about the purpose in publishing the Warman Work.76 The Warman Work was a pdf of a

speech that was not posted in a thread, it could only be reached by a link. On two occasions it was

referenced within threads that were about Richard Warman's activities. The Kay Work, on the other

hand, was published on its own thread to let people know that the mainstream media was writing

about this issue and to encourage people to go to the National Post site to leave comments. It is

incorrect to suggest that the purpose must be the same for all of the dealings.

D. Was the source and author of the Kay Work credited?80.The Memorandum of Fact and Law of the Appellants the National Post contains the original posting

of the full Kay article in Tab A. Jonathan Kay's name appears four times on Page 1 as the author. At

the end of the article on page 3, is the word SOURCE and it is underlined. That was underlined

73MemorandumofFactandLawoftheAppellanttheNationalPostCompany,p.23para8586

74AffidavitofConstanceFournier,Volume2,TabD


76MemorandumofFactandLawoftheAppellanttheNationalPostCompany,p.22para.8384


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because it was an active link that led directly to the National Post site where the article was located.

In addition, the original poster, in the very next post (page 3), wrote "Visit the link and leave a

comment for Johnathan" (sic). "Leave a comment" is underlined because it, too, was a link that led to

the National Post site and readers were being encouraged to go there and participate in the discussion.

81.When the excerpts were published, Jonathan Kay's name remained in the title, the National Post linkwas removed from that initial post because the article had been removed from the National Post site,

and a link was inserted that led to the Statement of Claim the excerpt came from (the Statement of

Claim indicated that the National Post was the source). The second link to the National Post that was

located below, however, remained untouched. Visitors who click the link will still go to the National

Post site. The copy that was produced by the Appellants in the Warman Affidavit77 is a quote from

the third page of the thread and does not show the actual post in context. However, in the Fournier

Affidavit78, you can see that Jonathan Kay's name and the link to the National Post remain intact even

after the Respondents removed the article excerpts.

82.Obviously, Mr. Justice Rennie understood from reading them that those text links led to the National

Post site. If he had not understood, he could have asked during the oral arguments. Similarly, the

Appellants, at no time, raised the argument that there was no link to the source of the Kay Work. If

they had, the Respondents could have produced evidence of the code behind the links.

83.Mr. Justice Rennie, in his Reasons79, makes a finding of fact that the requirement that the source and

author be mentioned was met in this case. And, they were.

84."Because of the privileged position of the judge who presides at the trial, who sees and hears the

parties and witnesses and who assesses their evidence, it is an established principle that his opinion is

to be treated with the utmost deference by the appellate court, whose duty is not to retry the case nor

to interfere by substituting its assessment of the evidence for that of the trial judge, except in the case

of a clear error on the face of the reasons or conclusions of the judgment appealed from." 80

85.The Appellants have provided no evidence that Mr. Justice Rennie made a "clear error" in examining

the evidence and determining that the source was acknowledged.

E. Was the use of the Kay Work Fair Dealing?Purpose of the Dealing

86.Mr. Justice Rennie accepted that the purpose of the dealing was for news reporting. This is a finding

of fact, and it is supported by evidence referenced previously. The only evidence that the Appellants

77AffidavitofRichardWarman,Volume1,Tab7G,p.138139

78AffidavitofConstanceFournier,Volume2,TabD,p.348349

79ReasonsofMr.JusticeRennie,Volume1,Tab3,p.30,para.31

80Lapointev.HpitalLeGardeur,[1992]1S.C.R.351p.358para.6


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provide that it might have been for a different purpose was a quote from a transcript referring

specifically to the Warman Work, not the Kay Work.

87.The failure to consider relevant evidence can amount to a palpable error if the evidence was

potentially significant to a material finding of fact. The appellants bear the onus of demonstrating a

failure to consider such evidence. The mere absence of any reference to evidence in reasons forjudgment does not establish that the trial judge failed to consider that evidence. The appellants must

point to something in the trial record, usually in the reasons, which justifies the conclusion that the

trial judge failed to consider certain evidence.81

Character of the Dealing

88.After approximately six hours on February 18, 2008, the Kay Work was not available on the National

Post site any longer. There was no way for readers to get private copies of the article, or for the

Respondents to link to another copy.

Amount of the Dealing

89.Mr. Justice Rennie made a finding of fact that the amount of the dealing was not a substantial part.

Alternatives to the Dealing

90.By the time the excerpts of the Kay Work were placed on Free Dominion, nearly every trace of it had

disappeared from the internet. The National Post had removed it, and the Appellant Richard Warman

had no intention of allowing people to read it because it was a "highly critical" article about him and

"he sought the exclusive licence...in order to prevent further publication". 82

91.The excerpts that were placed on Free Dominion came directly from the Statement of Claim that the

Appellant Richard Warman had filed against the Respondents in this case and against the National

Post Company. Paraphrasing the Kay would not have served the purpose of reporting to the readers

exactly what Mr. Warman had sued over, and the public has an interest in reading court documents.

Conclusion of Fair Dealing

92.The Respondents did mention the source of the Kay Work. Mr. Justice Rennie clearly saw the

underlined links called SOURCE and "Click here and leave a comment for Johnathan" and concluded

correctly that they led directly to the National Post site.93.There was plenty of evidence that the Kay Work was posted for news reporting purposes and Mr.

Justice Rennie exercised his discretion in finding that to be the case. There is no palpable or

overriding error here.

94.Mr. Justice Rennie did not misapply the fairness factors in CCH and there was no palpable and

overriding error in his finding that the dealing was fair.

81Waxmanv.Waxman(2004),186O.A.C.201(C.A.)p.79,para.343

82ReasonsofMr.JusticeRennie,Volume1,Tab3,p.28,para26


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Continuous or Ongoing Publication A New Argument

95.Since both of the Appellants have raised the new argument of continuous or ongoing publication,

we will deal with both at once.

96.The full text of the Kay article was posted on Free Dominion on February 18, 2008. It remained thereuntil April 18, 2010. It was not posted each day as the Appellants claim.83

97.The Appellants claim that the Respondents have "admitted" to posting a full-text reproduction of the

Kay Work "each day" from the date of publication until April 18, 2010. This is patently false. The

full-text reproduction of the Kay Work was posted once on February 18, 2008 and the Respondents

did not touch it again until April 18, 2010.

98.Likewise, the Appellant Richard Warman is attempting to raise the new argument of "Continuing or

Ongoing Infringement"84

99.Continuous publication argument is brand new. It was not raised in the court below and no evidence

was adduced by either side.

100. In fact, Mr. Katz conceded no less than four times in his oral arguments before Mr. Justice

Rennie that the Warman Work and the first full publication of the Kay Work were statute barred.85868788

101. Mr. Katz also argued that the "clock starts" when the plaintiff knew or ought to have known

that the publication had occurred.89

102. The Federal Court of Appeal has held that, "As a general rule, a party may not raise in appeal

a new argument which was not raised in the trial jurisdiction and in relation to which it might have

been necessary to adduce evidence at trial".90

103. In his Memorandum of Fact and Law, the Appellant Richard Warman makes reference to a

case where the issue is whether importing a narcotic is a continuing offence.

104. In their reasons, the Supreme Court concludes that: "...the offence of importing a narcotic is a

continuing offence which is not completed until the recipient receives the goods."91

83MemorandumofFactandLawoftheAppellants,theNationalPostCompany,p.10,para36.

84MemorandumofFactandLawoftheAppellantRichardWarman,p.8Section2

85TranscriptsoftheFederalCourt,Volume4,Tab14,p.1437,lines217



88TranscriptsoftheFederalCourt,Volume4,Tab14,p.1440,lines1825p.1441,line1


90LittleRedRiverCreeNation#447vLaboucan2010FCA253p.3,para.10

91Bellv.TheQueen,[1983]2S.C.R.471


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105. This is not a good comparison for placing a work on a server and providing a link to it. The

Appellants are making the argument that, simply because the work is sitting on the server andmight

be viewed by someone who clicks on the link, that that situation is similar to a smuggler who has

picked up the goods and has not yet delivered them to his customer.

106. As mentioned earlier, this argument was not raised in any court in Canada in this way before,either. InCarter v B.C. Federation of Foster Parents Assn.92, they talk about this issue in some

depth. The United States, has enacted a rule of law (adopted in many but not all states) known as the

"single publication rule". Under this law, several communications to a third party of a defamatory

statement are held to be only one publication and the limitation period begins to run from the date of

the first such communication: Firth v. State of New York, 775 N.E.2d 463 (Ct. App. 2002).

107. Although this has been discussed a (very) few times in Canadian courts, it has never been

fully argued or adopted. In the case of one internet posting that has, potentially, been viewed multiple

times, however, finding that one internet post was a "single publication" would make a lot of sense.

Because, as stated inCarter 93, "If the plaintiff is correct in terms of a republication occurring each

time a user accesses the forum and such a user was able to read the Dberlane comment, quite apart

from the myriad of other innocent postings, then a site provider (as opposed to a service provider such

as Blue Frogg) such as the Federation could never avail itself of any limitation period defence."

108. However, even if the "single publication" view is not adopted, the Appellants have provided

no case law to support their assertion that the mere presence of a Work on a server constitutes a new

publication every single day. In fact, the case law that exists clearly shows the opposite.

109. InBahlieda v Santa94, the court is quite clear that it does not. This defamation case involved

a limitation period for the filing of a notice of libel. The alleged libel was republished monthly on a

website and the previous archived months were still available online. (Paragraphs 7 and 54) Despite

this, the Court decided "The claim of the plaintiff for damages arising from defamatory statements

posted on the defendants website in May, 2001 and continuing monthly through to December, 2001

is statute barred and is struck." 95

110. Similarly, the BC Court of Appeals, inCarter, where the alleged libel was on a website andthe limitation period from the day it was published had passed. The impugned words remained on the

website for two years. While the Court felt it was inappropriate to adopt the American "single

publication rule" as they felt this should be addressed legislatively, they still found that the plaintiff

92CartervB.C.FederationofFosterParentsAssn.,2005,BCCA398para.18


94Bahliedav.Santa,2003CanLII2883(ONCA),para.7and54

95Bahliedav.Santa,2003CanLII2883(ONCA),para.62


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should only be able to pursue the matter if she could prove that subsequent publication had taken

place that was within the time limitation period.96 (para 20). The Court went on to say that "...it may

be that the plaintiff will have difficulty in establishing the fact of publication to a third party

subsequent to her originally learning about the existence of the comment in the year 2000, but I do

not consider that she should be prevented from tendering evidence that there was such publication."97

111. The reason a plaintiff might have difficulty proving publication within the limitation period is

because the process of publication involves two steps. The Supreme Court, has clearly defined

internet "publication" in this way: "In the common law of defamation, publication has two

components: (1) an act that makes the defamatory information available to a third party in a

comprehensible form, and (2) the receipt of the information by a third party in such a way that it is

understood." 98

112. They go on to say that: "For an action in defamation to succeed, the plaintiff must also satisfy

the requirements of the second component of publication on a balance of probabilities, namely that a

third party received and understood the defamatory information. This requirement can be satisfied

either by adducing direct evidence or by asking the court to draw an inference based on, notably,

whether the link was user-activated or automatic; whether it was a deep or a shallow link; whether the

page contained more than one hyperlink and, if so, where the impugned link was located in relation to

others; the context in which the link was presented to users; the number of hits on the page containing

the hyperlink; the number of hits on the page containing the linked information (both before and after

the page containing the link was posted); whether access to the Web sites in question was general or

restricted; whether changes were made to the linked information and, if so, how they correlate with

the number of hits on the page containing that information; and evidence concerning the behaviour of

Internet users. Once the plaintiff establishes prima facie liability for defamation, the defendant can

invoke any available defences."99

113. The Warman Work and the Kay Work were both available on Free Dominion, but they were

available in different ways. The Warman Work was sitting on the server but it was not embedded

into any forum threads. The only way to access the Warman Work was to click on a link in a forumpost (there were two such links on the site, buried within 1.75 Million posts). A user who went to

Free Dominion would be presented with a list of links to topics, and, if they chose one that contained



98Crookesv.Newton,2011SCC47,[2011]3S.C.R.269p.271para.6



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a link to the Warman Work, they could choose to click on that link and the Warman Work would load

on their computer and "publication", by theCrookesstandard, would be complete.

114. The Kay Work, on the other hand, was part of a thread in the forum. So, the user would be

presented with a list of forum topics, and, if he/she chose the one about the Kay Work, and went to

the correct page in that thread, the Kay Work would be displayed without the extra step of clicking onanother link.

115. If we use the Crookes standard, we cannot simply assume that a Work is newly published

every day that it sits on a server. Using the analogy that the Appellant Richard Warman drew from

Bell, it would be like saying that you could charge a smuggler with smuggling after the limitation

period was over because you had proof that he smuggled in the past so it's likely he has done it since.

116. In order to make the case that publication occurred recently enough that it was within the

limitation period, the Appellants would be required to provide evidence that that publication took

place. As they did not raise this argument in the lower court, they brought no evidence that such a

publication took place.

117. In addition, if the Court is to consider this argument, the Respondents will be prejudiced

because they have had no opportunity to bring their own evidence such as page counts, site statistics,

possible server logs, technical information on hyperlinks (user-activated vs automatic, deep vs

shallow, location etc.), statistical information on user behaviour, and expert testimony on all of the

above.

118. The Appellants, in asking the court to make a determination that publication is continuous and

ongoing if a work is online, are asking for the creation of a separate standard for copyrighted works

depending on the medium in which they are published. This is a very serious issue and it should not

be decided in a case where the evidentiary record is so obviously incomplete.

119. In his Memorandum of Fact and Law, the Appellant Richard Warman refers to the traditional

rationales for limitations statutes. (pg 12-13)

120. He states that the Certainty Rationale reads "There comes a time, it is said, when a potential

defendent should be secure in his reasonable expectation that he will not be held to account forancient obligations". This should apply to internet publications every bit as strongly as it does to

publications in other media. A publisher should not be held forever accountable for something that he

published online when he would not be held accountable for it if it were published, instead, in a

newspaper. Once a work is published online the publisher moves on to other things and, usually

never touches it again. The idea that the publisher should be treated as if he is republishing every

single thing he has ever posted online every day for as long as it sits on his server, is ludicrous.


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121. Our world is becoming increasingly wired. To remove the limitation protection from a

publisher for simply publishing it online is to encourage publishers to avoid the new media.

122. The Supreme Court, inCrookes v Newtonsaid, "The Internets capacity to disseminate

information has been described by this Court as one of the great innovations of the information age

whose use should be facilitated rather than discouraged"100

.123. The Appellant Richard Warman states that the Evidentiary Rationale says, "Once the

limitation period has lapsed, the potential Defendent should no longer be concerned about the

preservation of evidence relevant to the claim".

124. This also weighs heavily in favour of the Respondents. Website operators often have server

logs and statistics about page views that are important evidence if one is to consider all of the factors

that Crookes stated were important in establishing, on a balance of probabilities, whether a work has

been published, and when. If the limitation period does not automatically apply to online postings

after three years, all of this data must be preserved by website owners indefinitely. Publishers in

other media would continue to be free from such an obligation.

125. Finally, the Appellant Richard Warman states that the Diligence Rationale reads as follows,

"Statues of limitation are an incentive for plaintiffs to bring suit in a timely fashion."

126. In the case of the Warman Work, from the time the Appellant Richard Warman found out

about the publication of the Work on Free Dominion until he filed this Application, he had found the

time to launch no less than three defamation lawsuits against the Repondents in this case, and dozens

of lawsuits against others. He has given no reason for waiting until the limitation period was over,

and there is no reason he should be exempt from filing within the limitation period just because the

publication was online.

127. The Appellant Richard Warman states that there should be a balancing of rights with regard to

limitation periods. InNovak v Bond101, the Supreme Court says, "Almost all applications of

limitations statutes will seem harsh. But their finality should not obscure their value. They bring

needed stability to society by enabling potential defendants to plan their affairs in the safe assumption

that stale claims cannot be raised against them. They minimize the risk that evidence relevant to theclaim will be lost. In addition, they are an incentive for plaintiffs not to sleep on their rights.

128. In urging this Court to balance interests, the Appellant Richard Warman refers to a case

(Novak v Bond) where the Supreme Court states that the plaintiff's circumstances should be

considered when deciding whether or not to extend a limitation period.


101Novakv.Bond,1999CanLII685(SCC),[1999]1SCR808,p.816,para.8


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129. In that case, the plaintiff was misdiagnosed by her doctor when she developed breast cancer.

After a long round of chemotherapy, she thought she had beaten the disease and thought about suing

her doctor but decided instead to stay positive and go on with her life. A few months later the cancer

came back and had spread throughout her body. At that point she decided to sue but came up against

a limitation period. In British Columbia they have a postponement provision for cases wheresomeone is not able to launch their case within the time limitation period so she relied on that.

130. The Court did allow her to take advantage of the postponement provision, but said the

following: "...limitation periods are not postponed on the plaintiffs whim. There is a burden on the

plaintiff to act reasonably."102

131. It is the submission of the Respondents that the circumstances of the plaintiff inNovakwere

dreadful, and she had to fight to have the limitation period prolonged, even when there was a

postponement provision for her to plead.

132. In the present case, there is no postponement provision, and the Appellant Richard Warman's

circumstances are decidedly different. He is not pleading illness or tragedy as his reasons for not

filing this Application earlier. The sum total of his reasons is that he gave the Respondents

repeated warnings and heintended to file this Application. Perhaps he was busy with the dozens of

other lawsuits that he launched against the Respondents and other individuals during those years, but

when compared with the circumstances of Ms Novak, Mr. Warmans stated intentions and his lack of

action on those intentions is not a compelling reason to overturn the lower Court on this issue.

G. OTHER ISSUES

133. However, an appeal from the judgment by the appellant allows the respondent to make all the

arguments it considers relevant and which have a bearing on the questions of law or fact that were

before the Motions Judge or that led to the judgment. 103

The Open Court Principle

134. The Warman Work, as it was posted on Free Dominion, is a stamped Exhibit from the

Canadian Human Rights Tribunal (Warman v. Tremaine). In addition, it is an Exhibit from the

Warman v. Fromm defamation (Ontario Court File No: 04-CV-26550SR), and part of the defence

evidence for the Respondents in the three defamation cases that have been filed by the Appellant

Richard Warman. The Kay Work, as it appeared on Free Dominion since April 2010, was an exact

102Novakv.Bond,1999CanLII685(SCC),[1999]1SCR808,p.840,para.65

103Devinatv.Canada(ImmigrationandRefugeeBoard),[2000]2FC212para.12


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copy of a short excerpt from the filed Statement of Claim in Warman v. National Post (Ontario Court

File No: 08-CV-352197SR). These are Court documents and, as such, should be available to the

public. The open court principle is a hallmark of democracy, and applies to all judicial

proceedings.104

135. A very important consideration in this case is that both of the Works in question are courtdocuments. The Courts have been very clear about the rights of citizens to view, copy and share

court documents and exhibits. Publication bans are never considered lightly, and citizens rights are

balanced with the rights of the victims and the accused before they are enacted.

136. In this case, however, the Appellant Richard Warman has obtained copyright on items from

cases that are currently before the Courts, and he is using copyright to prevent citizens from reading

that material. The Warman Work contains passages of Mr. Warman bragging about using the Courts

for a collateral purpose, and his audience is a group that is very disreputable. A reasonable person

can easily conclude that Mr. Warman is never going to use his copyright on that Work in a traditional

sensedisseminating the Work.

137. The same is true for the Kay Work. The article was unflattering of Mr. Warman so he sued

the author and the publisher in order to obtain copyright and now, while the defamation lawsuit

continues on, he has ensured that the public will not even be allowed to read the Statement of Claim

in that case.

138. The Supreme Court talked inCCH about the balancing of users rights and copyright owners

rights. In a case where the users are the public who want to read materials that are before the Court,

and the owner/licensee is not publishing it and is suing anyone who uses it, the balance seems to be

terribly skewedawayfrom the user. The scales are tipped even further when you consider that no

profits are being lostthe Appellants in this case have not even lost web traffic, and the Respondents

have gained nothing by sharing those documents.

139. The open court principle is inextricably linked to the freedom of expression protected by s.

2(b) of theCharter,and the right of the public to receive this information is also protected by the

constitutional right of freedom of expression. The open court principle is not to be lightly interferedwith.105

140. The principle of openness of judicial proceedings extends to the pretrial stage, as well.106

141. In considering publication bans, the Court developed theDagenais/Mentucktest to balance

freedom of expression and other important rights and interests. This test is not just applicable to

104VancouverSun(Re),[2004]2S.C.R.332,2004SCC43,para.23

105VancouverSun(SCC43,para.26,Re),[2004]2S.C.R.332,2004



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publication bans, and it is applicable in other circumstances when the Courts are considering

balancing issues related to the openness of the Court. 107

142. The Supreme Court has reiterated that, in respect to the openness of judicial and non-judicial

acts, At every stage the rule should be one of public accessibility and concomitant judicial

accountability and curtailment of public accessibility can only be justified where there is presentthe need to protect social values of superordinate importance. 108

143. Access to Exhibits is included in the open court principle, and protected by 2(b)Charter

rights.109

144. The right to access includes the right to make copies. The state must not interfere with an

individuals ability to inspect and copy public records and documents including judicial records and

documents.110

145. Freedom of expression is too important a principle to be lightly cast aside or limited.

Whether political, religious, artistic or commercial, freedom of expression should not be suppressed

except where urgent and compelling reasons exist and then only to the extent and for the time

necessary for the protection of the community. 111

146. This case is not only requires the usual balancing of copyright users rights vs copyright

owners rights, but the Warman Work and the Kay Work also require the Court to consider the 2(b)

Charter rights of the public with respect to accessibility of judicial documents and exhibits.

Creation of new subject matter

147. Section 29.21 (1) of the Copyright Act states that "It is not an infringement of copyright for an

individual to use an existing work or other subject-matter or copy of one, which has been published or

otherwise made available to the public, in the creation of a new work or other subject-matter in which

copyright subsists and for the individual or, with the individuals authorization, a member of their

household to use the new work or other subject-matter or to authorize an intermediary to

disseminate it, if..." and it sets out several criteria. We will discuss those criteria and how they apply

to the Kay Work excerpts, one-by-one below:


108R.v.CanadianBroadcastingCorporation,2010ONCA726(CanLII),para.22

109R.v.CanadianBroadcastingCorporation,2010ONCA726(CanLII),para. 28

110R.v.CanadianBroadcastingCorporation,2010ONCA726(CanLII),para.22

111Irwintoyltd.v.Quebec(Attorneygeneral),1989CanLII87(SCC),[1989]1SCR927Section4


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148. (a) the use of, or the authorization to disseminate, the new work or other subject-matter is

done solely for non-commercial purposes; This is clearly the case as Free Dominion is not a

commercial website, nor was the posting done for commercial reasons.

149. (b) the source and, if given in the source, the name of the author, performer, maker or

broadcaster of the existing work or other subject-matter or copy of it are mentioned, if it isreasonable in the circumstances to do so; The name of the author, Jonathan Kay, appeared several

times on each posting, and, as discussed earlier, the source was also given in link form.

150. (c) the individual had reasonable grounds to believe that the existing work or other subject-

matter or copy of it, as the case may be, was not infringing copyright; The excerpt that was used to

make the post was a direct quote from a Statement of Claim which is a public document. The

excerpts had been taken from the article and used in the creation of a new document, the Statement of

Claim. The Respondents had reasonable grounds to believe that there was no copyright in a small

quote from a court document.

151. (d) the use of, or the authorization to disseminate, the new work or other subject-matter does

not have a substantial adverse effect, financial or otherwise, on the exploitation or potential

exploitation of the existing work or other subject-matter or copy of it or on an existing or

potential market for it, including that the new work or other subject-matter is not a substitute for the

existing one. There is no adverse effect, substantial or otherwise, that would apply to the use of the

works that are the subject of the underlying Application. It is apparent the Appellant Richard

Warman has no intention of ever letting the public read either of the Works. The Kay Work is a very

critical article about him, and the Warman Work is a speech he seems to be ashamed to have given.

There is no existing market, and there is no potential market for either. The Kay Work was removed

from the National Post website within six hours after it was posted on Free Dominion, so there has

been no adverse effect on the National Post, either. Also, the excerpts that were posted on Free

Dominion could never substitute for the existing work because it is incomplete and it is about the

defamation lawsuit, it is no longer just an editorial about Mr. Warman.

152. It is our submission that the use of the Kay work excerpts to create the news post about theAppellant Richard Warmans lawsuits would fit the criteria for a copyright exemption under Section

29.21 (1).

153. The Appellant Richard Warman has not used his copyright on any of these items for any

purpose other than to keep these Works from the public. Use for research and news reporting has no

effect on the copyright, and allowing the Appellant Richard Warman to keep the Works from the


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public for no good reason is contrary to the spirit of theCopyright Act, which is to balance users and

owners rights.

154. The fair dealing exception, like other exceptions in the Copyright Act, is a users right. In

order to maintain the proper balance between the rights of a copyright owner and users interests, it

must not be interpreted restrictively. As Professor Vaver, supra, has explained, at p. 171: User rightsare not just loopholes. Both owner rights and user rights should therefore be given the fair and

balanced reading that befits remedial legislation.112

155. "This cause of action arises when the processes of law are used for an ulterior or collateral

purpose. It is defined as the misusing of the process of the courts to coerce someone in some way

entirely outside the ambit of the legal claim upon which the court is asked to adjudicate. It occurs

when the process of the court is used for an improper purpose and where there is a definite act or

threat in furtherance of such purpose."113

156. An abusive action is one which misuses or perverts the procedure of the Court. It has been

characterized as an action which can lead to no possible good, one where the defendants are to be

dragged through long and expensive litigation for no possible benefit.114

157. This Application brings the administration of justice into disrepute. In demanding that the

Respondents surrender all copies of the Warman Work, the Appellant Richard Warman is attempting

to use his copyright claim as an oblique way to deprive the Respondents of evidence in his other cases

against them. If this case succeeds, the public will be deprived of their 2(b)Charter rights to access

to Court documents. The Works have all been removed from public view, and neither of the

Appellants had any damages, so there is no possible benefit to this Appeal. The Appellant Richard

Warman is a lawyer who has bragged about disrupting the lives of his political enemies using legal

means, and who has sued or threatened to sue dozens of people. The Appellant Richard Warman

currently has three other defamation lawsuits against the Respondents. This copyright Application is

an attempt to negate users rights, and to financially ruin the Respondents.

PART IV ORDER SOUGHT

158. Given the foregoing, the Respondent requests the following Order:

a) Dismissal of this Appeal; and

b) Costs of this Appeal on the highest scale permitted under theFederal Court Rules, 1998

112CCHCanadianLtd.v.LawSocietyofUpperCanada,2004SCC13., para.48

113LeviStrauss&Co.v.RoadrunnerApparelInc.[1997](F.C.A.),atp.2(b)

114RoyHarrisv.TheAttorneyGeneralofCanada,2004FC1051,para.18


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ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 23nd day of April, 2013.

____________________________

Mark and Constance Fournier

2000 Unity Rd.Elginburg, ON K0H 1M0

(613) 929-9265

Self Represented


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PART V ORDER LIST OF AUTHORITIES

1) PourShariativ.Canada(MinisterofEmploymentandImmigration),1997CanLII5264(FCA)2) Borowskiv.Canada(Attorneygeneral),1989CanLII123(SCC),[1989]1SCR3423) EpiceptCorporationv.Canada(Health),2011FCA2094) OperationDismantlev.TheQueen,1985CanLII74(SCC),[1985]1SCR4415) SkoogvCanadianTire,2013ONSC1446) Housenv.Nikolaisen,[2002]2S.C.R.2357) H.L.v.Canada(AttorneyGeneral),[2005]1S.C.R.401,2005SCC258) Waxmanv.Waxman(2004),186O.A.C.201(C.A.)P.799) Lapointev.HpitalLeGardeur,[1992]1S.C.R.35110)LittleRedRiverCreeNation#447vLaboucan2010FCA25311)Bellv.TheQueen,[1983]2S.C.R.47112)CartervB.C.FederationofFosterParentsAssn.,2005,BCCA39813)Bahliedav.Santa,2003CanLII2883(ONCA)14)Crookesv.Newton,2011SCC47,[2011]3S.C.R.26915)Novakv.Bond,1999CanLII685(SCC),[1999]1SCR808

16)Devinatv.Canada(ImmigrationandRefugeeBoard),[2000]2FC21217)VancouverSun(Re),[2004]2S.C.R.332,2004SCC4318)R.v.CanadianBroadcastingCorporation,2010ONCA726(CanLII)19)Irwintoyltd.v.Quebec(Attorneygeneral),1989CanLII87(SCC),[1989]1SCR927

20)CCHCanadianLtd.v.LawSocietyofUpperCanada,2004SCC1321)CopyrightAct,RSC1985,cC42


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BETWEEN:


Appellants

-and-


Respondents



Fournier Memorandum 1

Documents

Transcript of Fournier Memorandum 1