Ruling says plaintiff based cause of action on infringement theory that amendment could not cure
The Federal Court entirely struck a statement of claim that failed to disclose a reasonable cause of action for copyright infringement relating to a former territorial government employee’s website detailing the events involving his termination.
In MacDougall v. Northwest Territories, 2025 FC 1062, the plaintiff was an employee of the Government of Northwest Territories (GNWT). In December 2018, he set up his website, where he posted variations of literary works he authored.
The plaintiff registered copyright in the literary works. He alleged that he published those works to inform the public of the GNWT’s failure to respect the privacy of its employees.
In October 2024, the plaintiff brought a claim against the GNWT and the Northwest Territories Legislative Assembly (NTLA), the two defendants in this case.
The plaintiff sought relief such as a declaration that he solely owned the copyright in the website, a permanent injunction relating to his literary works, damages under s. 2(b) of the Canadian Charter of Rights and Freedoms, and punitive damages.
The defendants moved to strike the plaintiff’s claim. They argued that the claim failed to plead an identifiable cause of action and material facts entitling the plaintiff to the relief sought or triggering their liability.
The NTLA wanted to dismiss the plaintiff’s action summarily. It counterclaimed for relief under the Trademarks Act, 1985, in connection with the plaintiff’s use of two domain names.
Claim struck
The Federal Court granted the defendants’ motions to strike and refused to grant the plaintiff leave to amend his statement of claim. The court deemed it plain and obvious that the plaintiff’s pleading
was entirely deficient and included a wholly unclear cause of action.
The court noted that the relief sought suggested a cause of action for copyright infringement and a Charter breach, given that it alleged that the defendants censored the plaintiff and interfered with his ability to reproduce his works, cited ss. 3(1) and 53(2) of the Copyright Act and ss. 2(b) and 24 of the Charter, and claimed Charter damages.
The court found that the claim failed to plead facts in the sections titled “Copyright Act” and “Charter of Rights and Freedoms” and cited statutory provisions without any facts in the sections called “The Northwest Territories’ Access to Information and Protection of Privacy Act (ATIPP),” “The Northwest Territories’ Department of Justice Act,” and “The Federal Northwest Territories Act.”
The court called the claim confusing. The court said that the claim left the defendants to guess and deduce what cause of action the plaintiff was pleading.
“The defendants are simply flying blind in answering the Statement of Claim which serves no one,” wrote Justice Allyson Whyte Nowak for the court.
Next, the court found it appropriate to strike the claim without leave to amend since it was plain and obvious that it should fail. The court said the plaintiff based his claim on a theory of infringement that could not succeed and that an amendment could not cure, given that he fundamentally misunderstood the rights the Copyright Act conferred to a literary work’s author.
The court saw two misconceptions on the plaintiff’s part. First, the court said he misunderstood the extent of his rights under s. 3(1) of the Copyright Act, which recognized an author’s rights rather than giving them rights not already possessed.
The court added that the plaintiff could publish his works on online platforms, which could engage contractual rights and a complaint process, but had no absolute right to require the publication of his works on any website.
Second, the court ruled that the plaintiff should have pleaded facts establishing that the challenged conduct fell under s. 27(1) of the Copyright Act and met the definition of “infringing” in s. 2(a).
The court found that the plaintiff did not allege that the defendants made a copy of his works, apart from the GNWT’s reproduction when it filed a January 2019 action against him before an Alberta court to request an injunction over the website.
The court held that the defendants’ challenged conduct did not involve the plaintiff’s original content or constitute unauthorized dealing with that content, so it could not support a cause of action for copyright infringement.
Instead, the court found that the NTLA was trying to prevent any misuse of its domain names and disruption to its business, while the GWNT was attempting to avoid the disclosure of emails with its employees’ personal and confidential information on the plaintiff’s website.
The court concluded that it had no jurisdiction over the plaintiff’s claim for Charter damages, absent a cause of action supported by federal legislation such as the Copyright Act.
