Intervention
Supreme Court turns a corner on intervener motions. Plus the judge who used AI to interpret a contract and whether paywall workarounds violate copyright.
Dylan Gibbs & Ethan Russell
June 06, 2024
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Under WestJest’s new UltraBasic fare tier, you can’t bring a carry-on bag unless your flight is crossing an ocean. It seems to be a precursor to HardcoreBasic, where passengers who really want to cut costs will be invited to fly in the extra overhead space freed up by their UltraBasic peers.
— Dylan Gibbs
with Ethan Russell
TODAY'S DOCKET |
Cracking down on interveners
The judge using ChatGPT to interpret a contract
Accessing copyrighted content by sharing passwords
Streaming revenues, leaky pricing, and smoking bans
PRACTICE
A harsh new* world for SCC interveners
In the latest challenge to Canada's sex work laws, Justice Rowe turned away seven groups asking for intervener status last week. And he gave reasons, which is unusual for run-of-the-mill motion decisions.
With one of the groups being fairly vocal about their disappointment, it’s the most dramatic intervener event at the Court since 2017’s Trinity Western debacle. More broadly, the Court that played it safe after a wave of bad press is finally returning to a more critical assessment of intervener motions.
Catch up: Justice Wagner (then just a frontrunner to be the next Chief Justice) rejected most of the 27 groups that applied to intervene in the Trinity Western appeals. Some religious groups made the cut. But groups expressly supporting LGBTQ+ interests didn't. After public outcry, Chief Justice McLachlin waved her magic wand and let everyone participate.
Following Trinity Western, the judges laid low. They gave intervener status to just about anyone who applied:
Although some judges changed their habits more than others, just about everyone tightened the reins:
But the times they are a-changin': With its 2021 Notice to the Profession, the Court reminded interveners it's not a free-for-all. And Justice Rowe drove the point home early last year, writing concurring reasons solely to dish out an intervener smackdown:
[A]n intervener can make useful contributions when it respects the rules, practice directions, and jurisprudence of this Court. By contrast, it exceeds its role when it seeks to alter the nature of the litigation by usurping the role of the parties, expanding the issues before the Court, or presenting new evidence. An intervention that contravenes these settled rules is improper, and has negative consequences for the parties, potential interveners, and the administration of justice.
[I]n the present case, certain interveners overstepped the well-established limits on their role.
Justice Rowe might be the loudest voice in the room , but he isn’t alone. The Court is now rejecting interveners in roughly the same proportion of cases as it did before Trinity Western:
Even Chief Justice Wagner is recovering from past trauma. In 2022, he denied an intervener motion for the first time in almost five years.
So if you or a loved one is applying for intervener status, play it safe—give the 2021 Notice and Justice Rowe's McGregor concurrence a second read.
HEARSAY ROUNDUP
Canadiana
🚭 Newfoundland and Labrador might become the first Canadian jurisdiction to ban tobacco for future generations.
💧 The Competition Bureau hit SiriusXM with over $3 million in penalties for drip pricing. The music service advertised its subscription prices without including fees, which made the advertised price unattainable. The hidden fees increased costs by 10–20%.
🧑💻 The CRTC published its policy for online streaming revenue. Streaming companies that make over $25 million in annual revenue will need to fork over 5% to support Canadian initiatives. Revenue doesn’t count if it comes from working with a Canadian broadcaster.
🤖 A US judge used ChatGPT to interpret the word “landscaping” in an insurance contract. And he wrote an excellent concurrence (page 25) explaining why:
I spent hours and hours (and hours) laboring over [whether the] trampoline-installation project qualified as “landscaping” as that term is ordinarily understood. And it was midway along that journey that I had the disconcerting thought that underlies this separate writing: Is it absurd to think that ChatGPT might be able to shed some light on what the term “landscaping” means?
Initially, I answered my own question in the affirmative: Yes, Kevin, that is positively absurd. But the longer and more deeply I considered it, the less absurd it seemed.
COPYRIGHT
Paywall schmaywall
The Federal Court said Parks Canada employees didn’t violate copyright when they accessed an online publication by sharing a single account.
But don’t take it as a free pass for credential sharing. The publisher didn’t draw users’ attention to its terms of service. And even if it had, the terms of service were ambiguous about article sharing. Although Justice Roy found that the government’s conduct was fair dealing instead of infringement, clearer terms might have carried the day for the publisher.
Nothing in these Reasons for Judgment should be taken as condoning practices which contravene the Copyright Act in the guise of monitoring at large the media. Parks Canada [obtained], in a licit fashion, articles directly related to its mandate and its operations… Different facts may generate different outcomes.
The publisher also argued that people who work around paywalls and passwords violate the Copyright Act, even if their use of copyrighted material would otherwise be fair dealing. But Justice Roy wasn’t convinced.
Sharing passwords isn’t circumvention (at least when the copyright holder doesn’t clearly state that sharing passwords is a problem).
And even if it was, people who circumvent technological protection measures don’t violate the Copyright Act if they stick to fair dealing once they’ve done their circumventing.
[T]here is no circumvention of a [technological protection measure] simply because the password was not circumvented: it was properly obtained and used for a legitimate purpose.
[In any event, if] there is fair dealing, there is no infringement.
[The technological protection measure] provisions were not intended to effectively enlarge copyright protection for digital works by allowing owners to employ [technological protection measures] to defeat fair dealing, an inherently non-infringing activity.
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