In 2019, as Canada was gearing up for its Federal election, the Conservative Party of Canada took video excerpts and debate material authored by Canadian journalists Rosemary Barton and John Paul Tasker, and owned by the Canadian Broadcasting Corporation (affectionately known as the “CBC”) and used them on website posts and tweets released by the Party. In response, on October 10, the CBC started a Federal Court application against the Party and Conservative Fund Canada (collectively the “Conservatives”), alleging copyright infringement, and named Ms. Barton and Mr. Tasker as co-applicants, asserting that their moral rights as authors of the content at issue had been infringed.
Two days later, the CBC made clear that while it had named the journalists as co-applicants because of concerns regarding political use of their content impacting perceptions of their independence, it had been the “driver” of the application, and indicated it would be amending the application to remove their names as co-applicants. Shortly thereafter, CBC served an amended pleading removing the journalists as parties and withdrawing the moral rights infringement allegations. The Conservatives did not dispute that they understood as of that date that Ms. Barton and Mr. Tasker would no longer be participating as applicants in the litigation.
The CBC filed its application evidence in December, and the next day, the Conservatives retained new counsel. In mid-January 2020, that new counsel requested confirmation from counsel for the CBC that Ms. Barton and Mr. Tasker had authorized counsel to bring the originating application in their names. The request was refused, and the Conservatives brought a motion to the Federal Court seeking that confirmation, asserting that the “gap” rule applied and that an Ontario court rule applied justifying the motion being granted.
The Court Carefully Minds the Gap
The Conservatives argued that the information they were seeking was necessary to address the issue of costs, because if the proceeding was improperly initiated, it was an abuse of process that should entitle them to a higher award of costs. The CBC argued that the request was tactical, and that there is no “gap” in the Federal Courts Rules that would allow the Court to grant the request based on the Ontario rule, and that the request was not made in a timely manner, was moot because the amendment to remove the journalists and the related allegations had been made, and that the costs issue was minimal because CBC undertook to pay all of the costs associated with the proceeding prior to the amendment.
The Court carefully reviewed the gap rule, observing that it has been described as a “rule of last resort” that should only be applied when all other avenues are exhausted, and that if the absence of a Federal Court Rule can be explained by the scheme of the Federal Courts Rules, the absence must be considered intentional.
The Ontario court rule the Conservatives sought to rely upon stipulates that if a lawyer has commenced a proceeding without the authorization of the client, the Court may stay or dismiss the proceeding on a motion, and order the lawyer to pay the costs of the proceeding. The Federal Courts Rules does not have the same rule. After considering the only Federal Court decision that discusses the Ontario court rule, in which the Court had taken no position on whether the gap rule could be used as a basis to apply the Ontario court rule, the Court concluded that because there are other means to challenge the authority of a lawyer to start a proceeding on behalf of a client in the Federal Courts Rules scheme, the omission of the Ontario court rule was deliberate.
Moreover, the Ontario court rule was designed to terminate proceedings where a named plaintiff had not authorized commencement; here, the Conservatives were not seeking the dismiss the application, and already knew that the journalists were not intending to participate in the proceeding as of October 2019 when the application was amended to remove them. The issue of authorization was no longer material to the remedies available under the Ontario court rule, and there was no authority where the rule was used collaterally to establish facts to support the issue of costs.
Accordingly, the Court held there was “no substantive basis to invoke the rare remedy of applying the gap rule”, particularly where its purpose was not designated in the provincial rule and had not been applied in Ontario. The Conservatives’ motion was dismissed.
Mind the gap [rule] – it is only to be cited in specific and special circumstances.