Blacklock’s Reporter v. Attorney General of Canada, 2026 FCA 56

Why this Decision Matters

The Federal Court of Appeal (“FCA”) confirmed that declaratory relief cannot survive without a live controversy between the parties directly before the Court. After the plaintiff, Blacklock’s Reporter (“Blacklock’s”), discontinued its claims for copyright infringement and circumvention of technological protection measures (“TPMs”), the Attorney General of Canada (“AGC”), on behalf of Parks Canada, forcefully pursued a counterclaim that consisted of declarations relating to non-infringement and non-circumvention in the absence of any dispute to resolve between the parties. The fact that the requested declarations might still carry strategic or precedential value in related proceedings involving other federal government departments represented by the same defendant — the Crown — was not enough. The FCA made clear that courts will not issue declarations in the abstract simply because they may assist parallel litigation or prove useful to other parties facing similar claims.

Summary

The Plaintiff, Blacklock’s, is a small, independently owned publication known for investigative reporting that is often sharply critical of government activity and public administration. Its articles are distributed through a subscription paywall, with subscriptions available both to individual readers and to institutions seeking broader internal access and distribution rights.

Through access to information requests, Blacklock’s discovered that various federal government departments had purchased individual-level subscriptions while seemingly sharing articles and login credentials internally, allegedly beyond the scope of those subscriptions. Blacklock’s subsequently commenced multiple actions against different federal departments alleging copyright infringement and circumvention of  TPMs.

In 2020, the actions were case-managed to determine which matter would proceed as the lead case. Although Blacklock’s, as plaintiff, sought to advance its action against Health Canada, the AGC pressed for the Parks Canada action to proceed instead. After the Case Management Judge directed that the Parks Canada matter move forward, Blacklock’s advised the Court on a Friday that it would discontinue that action, rather than being compelled to proceed with a test case it did not wish to advance. On the Sunday before Blacklock’s formally filed its Notice of Discontinuance on Monday morning, the AGC served and filed a counterclaim on behalf of Parks Canada seeking declarations of non-infringement, among others, effectively attempting to keep the dispute alive despite knowing that the discontinuance would be filed and being aware of the resulting expiry of the limitation period for any copyright infringement or TPM claims against Parks Canada.

Blacklock’s opposed the filing of the counterclaim on the basis that the Attorney General had not sought the requisite leave for filing and, in any event, that no live controversy remained between the parties capable of supporting declaratory relief. Those objections were rejected both at first instance and on appeal within the Federal Court, leaving Blacklock’s compelled to continue litigating the Parks Canada matter despite maintaining that no justiciable dispute remained. Blacklock’s was ultimately forced to defend against the AGC’s motion for summary judgment, which resulted in two declarations, in part:

1. That Parks Canada’s use of the password in the circumstances of the case constituted fair dealing under section 29 of the Copyright Act; and
2. That the use of the password did not constitute circumvention of the alleged technological protection measure.

Because those declarations carried potential prejudicial implications for Blacklock’s position in its related actions against other federal departments, Blacklock’s had little choice but to appeal to the FCA.

Blacklock’s (represented by MBM Intellectual Property Law), the Attorney General of Canada (on behalf of Parks Canada), and the intervener, the Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic, all filed fulsome submissions addressing the substantive copyright and TPM issues underlying the declarations.

Nearly six years after Blacklock’s first advised that it intended to discontinue the Parks Canada action, and the AGC filed its counterclaim, the FCA ultimately confirmed what Blacklock’s had argued throughout: absent a live controversy between the parties, declaratory relief should never have been pursued in the first place.

FCA Findings

The FCA emphasized that an appeal lies from the judgment, not the reasons, and reframed the analysis around a single determinative question:

Did the declarations resolve a “live controversy” between the parties?

Answering that question in the negative, the FCA accepted the position originally advanced by Blacklock’s immediately following the filing of its discontinuance. Once the copyright action had been discontinued, the requested declarations of non‑infringement and non‑circumvention could no longer affect the rights or obligations of the parties and therefore had no practical utility. As a result, the Federal Court erred in issuing them.

Key Takeaways

• The FCA set aside the declarations on procedural grounds, not on the merits.
• The Court deliberately left unresolved whether password sharing constitutes circumvention of a TPM and how fair dealing interacts with Canada’s digital‑lock regime.
• The Federal Court’s analysis of fair dealing and TPMs in the decision below remains non‑binding.
• Blacklock’s has indicated that it intends to continue advancing, in a separate proceeding, its position that fair dealing should not form part of the legal analysis applicable to the circumvention of TPMs. Those issues, however, will now have to be determined in a case involving an actual live controversy between the relevant parties, rather than through declaratory relief pursued in the abstract.
• What remains to be seen is the quantum of costs payable to Blacklock’s following nearly six years of litigation over a dispute that the FCA ultimately concluded should never have proceeded in the absence of a live controversy.