JOHN WINKLER v. THE ESTATE OF THERESIA WINKLER, 2021 FC 498

Date: 20210527 Docket: T-1656-16 Citation: 2021 FC 498 Ottawa, Ontario, May 27, 2021 PRESENT: Mr. Justice McHaffie BETWEEN: JOHN WINKLER AND THE ESTATE OF THERESIA WINKLER BY HER ESTATE TRUSTEE, JOHN WINKLER Plaintiffs and NATE HENDLEY AND JAMES LORIMER & COMPANY LTD. Defendants JUDGMENT AND REASONS TABLE OF CONTENTS Para. I. Overview [1] II. Issues [7] III. Analysis [9] A. This is an Appropriate Case for

Summary Judgment [9] B. The Record and Evidentiary Issues [13]

(1) The podcast transcript should not be admitted [19]

(2) Mr. Fazakas’ evidence is admissible [31] C. The Plaintiffs Have not Established Infringement of Copyright [53]

(1) General principles: fact, fiction, and copyright protection [53]

(2) The current context: fact vs fiction [64]

(3) Originality, facts, and assertions of truth [90]

(4) Substantial taking: The Black Donnellys [112]

(5) Substantial Taking: Vengeance of the Black Donnellys [155] D. Remedy and Costs [162] IV. Conclusion [164] I. Overview [ 1 ] In the early morning of August 24, 1875, eight members of the notorious Donnelly family of Lucan, Ontario, armed with nothing more than clubs, won a pitched street battle against eighteen townspeople intent on revenge. Or did they? This and similar questions arise in this copyright infringement action because the plaintiffs assert the battle was the fictional creation of Thomas P. Kelley in his 1954 book The Black Donnellys .

They claim Nate Hendley’s 2004 book The Black Donnellys: The Outrageous Tale of Canada’s Deadliest Feud infringes copyright in The Black Donnellys and its sequel, Vengeance of The Black Donnellys , including by copying Mr. Kelley’s fictional events, his creative embellishments of historical events, and his cinematic story-telling style. [ 2 ] Mr. Hendley and his publisher, James Lorimer & Company Ltd, admit Mr. Hendley used Mr. Kelley’s books, among other sources, in doing research for his own book. But they argue Mr. Hendley’s book is an original literary work not copied from Mr.

Kelley’s books or any other source. They also say Mr. Kelley’s The Black Donnellys is factual and argue that having represented it as a work of

historical nonfiction, Mr. Kelley and his successors cannot now claim copyright in the persons and events described. [ 3 ] I conclude there has been no copyright infringement. [ 4 ] I agree with the defendants that an author who publishes what is said to be a nonfiction historical account cannot later claim the account is actually fictional to avoid the principle that there is no copyright in facts. Having presented the Donnellys’ street battle and other facts and events as a true historical account based on " “unimpeachable sources,” " Mr. Kelley could not later assert that he was not to be taken at his word.

His successors in title are in no better position and similarly cannot argue the facts were actually fictions and therefore subject to copyright protection. The passages in question are not excluded from the assessment of whether there has been copying of a substantial part of Mr. Kelley’s books, but substantiality must be determined in relation to the originality of the work that warrants copyright protection. Considering the works, their originality, and the asserted similarities holistically, I conclude Mr. Hendley did not copy a substantial part of either of Mr.

Kelley’s works. [ 5 ] In reaching this conclusion, I have accepted as admissible the plaintiffs’ expert evidence about the history of the Donnelly family, even though it comes from the father of counsel for the plaintiffs. The defendants’ concerns about independence due to this familial relationship have considerable merit. However, I find that the low standard established by the Supreme Court of Canada for admissibility and expert independence is met by the plaintiffs’ expert report. That said, given my conclusion that the plaintiffs cannot disavow the factual nature of Mr.

Kelley’s account, this evidence is ultimately of limited impact in the matter. [ 6 ] The plaintiffs’ motion for

summary judgment is therefore dismissed, the defendants’ motion for

summary judgment is granted, and the action is dismissed. The parties may file submissions on costs in accordance with the

schedule set out at the conclusion of these reasons. II. Issues [ 7 ] The plaintiffs’ Statement of Claim includes claims in copyright infringement, moral rights infringement, passing off, and unfair competition. However, when bringing their motion for

summary judgment in respect of the copyright infringement claims, the plaintiffs expressly abandoned the other causes of action. After the parties’ materials on the plaintiffs’

summary judgment motion had been filed, the defendants brought their own motion for

summary judgment seeking dismissal of the action, to be argued on the same materials. No objection was taken to this approach and the parties agree the matter should be fully decided on these motions. [ 8 ] The parties’ motions for

summary judgment therefore raise the following issues: A . Is this matter suitable for

summary judgment? B . Should the Court admit into evidence on the motions: 1) the transcript of a podcast written by Mr. Hendley; and/or 2) the expert reports of Raymond Leslie Fazakas? C . Have the plaintiffs established the defendants infringed their copyright? D . If so, what remedies are appropriate? III. Analysis A. This is an Appropriate Case for

Summary Judgment [ 9 ] The Court shall grant

summary judgment where there is " “no genuine issue for trial with respect to a claim or defence” " : Federal Courts Rules , SOR/98-106, Rule 215(1) . In Hryniak v Mauldin , 2014 SCC 7 , Justice Karakatsanis described concisely the " “no genuine issue for trial” " standard: There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact , (2) allows the judge to apply the law to the facts , and (3) is a proportionate, more expeditious and less expensive means to achieve a just result . [Emphasis added; Hryniak at para 49 .] [ 10 ] Hryniak was decided in the context of the

summary judgment rule in Ontario’s Rules of Civil Procedure , RRO 1990, Reg 194 . However, the Federal Court of Appeal has confirmed its relevance to

summary judgment motions brought under the Federal Courts Rules , while cautioning that its pronouncements should not be imported uncritically so as to amend Rule 215 : Manitoba v Canada , 2015 FCA 57 at paras 11–17 ; Badawy v Igras , 2019 FCA 153 at para 7 . The relevant principles governing

summary judgment motions in the Federal Court were helpfully summarized by Justice Fuhrer in Rallysport Direct LLC v 2424508 Ontario Ltd , 2019 FC 1524 at para 42 , drawing on the decision of Justice Mactavish, then of this Court, in Milano Pizza Ltd v 6034799 Canada Inc , 2018 FC 1112 at paras 24– 41 . [ 11 ] In the present case, both parties brought motions for

summary judgment and both ask the Court to determine the matter on these motions. Neither party argues there is a genuine issue requiring a trial. To the contrary, by letter to the Court the parties agreed the proceeding could be finally resolved through

summary proceedings. While such agreement and submissions are not binding on the

Court, they are persuasive, particularly in assessing whether

summary judgment is a "“proportionate, more expeditious and lessexpensive means to achieve a just result”": Hryniak at para 49; Federal Courts Rules, Rule 3. [12] There are some evidentiary and factual complexities in this matter, notably with respect to the events described in the books aboutthe Donnellys, whether they are true, and the extent to which that matters in the analysis. However, these complexities do not prevent afair and just determination of this case on its merits. I am satisfied the materials before me permit me to make the necessary findings offact and apply the law to them.

I am also satisfied, given the issues and amounts at stake, the evidence filed, and the parties’ mutualsubmission that there are no issues requiring trial, that

summary judgment is an appropriate method to secure the just, most expeditious,and least expensive determination of the proceeding on its merits: Federal Courts Rules, Rule 3. B. The Record and Evidentiary Issues [13] This action centres around three books: Thomas P. Kelley, The Black Donnellys (Richmond Hill: Firefly Books, 1993), firstpublished in 1954; Thomas P. Kelley, Vengeance of the Black Donnellys (Richmond Hill: Firefly Books, 1995), first published in 1962;and Nate Hendley, The Black Donnellys: The Outrageous Tale of Canada’s Deadliest Feud (Toronto: Lorimer, 2009), first published in2004.

For ease of reference and to avoid confusion, I will refer to Mr. Kelley’s books as The Black Donnellys and Vengeance, and to Mr.Hendley’s as The Outrageous Tale.

Both The Black Donnellys and The Outrageous Tale are presented as telling the true story of theinfamous Donnelly family, five of whom were killed by a mob in February 1880 after decades of criminal conduct and feuding.Vengeance is a more fanciful story, whose predominantly fictional nature can be seen from its subtitle: Canada’s Most Feared FamilyStrikes Back From the Grave. [14] It is undisputed that the plaintiffs now own copyright in The Black Donnellys and Vengeance. John Winkler is the son and heir ofTheresia Winkler, who died in 2016. Ms. Winkler was the sole beneficiary of Mr. Kelley, who died in 1982.

Although Mr. Kelleyassigned copyright in the books to a third party during his lifetime, this Court confirmed in 2002 that Ms. Winkler would become ownerof the copyright in 2007 by operation of

section 14 of the Copyright Act, RSC 1985, c C-42, known as the "“Dickens”" provision:Winkler v Roy, 2002 FCT 950 at paras 6–7, 57–59, 63. [15] Neither party filed copies of the complete works in their motion materials, relying instead on excerpts. At the hearing, I questionedmy ability to assess whether there had been a substantial taking of The Black Donnellys or Vengeance by The Outrageous Tale withouthaving full copies of the works.

With the consent of the defendants, I granted the plaintiffs leave to file a further affidavit attaching thecomplete books for the Court’s review, which was done shortly after the hearing. [16] In addition to the works themselves, the plaintiffs filed the affidavit of John Winkler, owner of copyright in Mr. Kelley’s books; andthe affidavit of Raymond Leslie Fazakas, attaching an expert report and a supplementary expert report. Mr. Fazakas’ reports provide,among other things, his opinion that The Black Donnellys is "“almost two-thirds fiction,”" and that Mr.

Kelley fabricated a number ofthe facts and events about the Donnellys that appear in the book. [17] The defendants responded with affidavits from Nate Hendley, author of The Outrageous Tale; James Lorimer, President of Lorimer,the current publisher of The Outrageous Tale; and Louise McLean, a law clerk with counsel for the defendants. Mr. Hendley and Mr.Lorimer both described, among other things, their understanding that The Black Donnellys was a factual telling of the Donnellys’ story.Mr. Winkler filed a reply affidavit addressing matters in Mr. Hendley’s affidavit. Mr. Winkler, Mr. Fazakas, and Mr.

Hendley werecross-examined on their affidavits. [18] Two days before the hearing of the

summary judgment motions, the plaintiffs filed a motion seeking leave to file the transcript of anepisode of a podcast about the Donnellys written by Mr. Hendley. The defendants object to the filing of the podcast transcript. They alsoargue Mr. Fazakas’ evidence should be ruled inadmissible. For the reasons below, I conclude that the podcast transcript should not beaccepted, and that Mr. Fazakas’ reports are admissible.

(1) The podcast transcript should not be admitted [19] In February 2020, the podcast "“Canadian True Crime”" aired an episode about the Donnelly family that was written by Mr.Hendley. The plaintiffs arranged for a transcript of the episode to be prepared and sought leave to tender it at the hearing of the

summaryjudgment motions. They argue the podcast "“conspicuously leaves out”" events they allege in this action Mr. Kelley invented orembellished, such as the street battle described at the outset of these reasons. They seek to use the transcript to undermine Mr. Hendley’sassertion that he believes the events recounted in Mr. Kelley’s book to be factual. [20] Mr. Winkler swore an affidavit in support of the motion, attaching the transcript as well as some surrounding information andcorrespondence. Although the motion only seeks leave to tender the transcript, to be receivable evidence on the

summary judgmentmotion, the transcript would have to be presented through an affidavit: Rule 363. I therefore consider the plaintiffs’ motion as effectivelya request to file Mr. Winkler’s affidavit with the transcript attached as an exhibit. [21] The affidavit and transcript were put forward after the date for filing evidence set out in the relevant scheduling order for thesemotions, after all cross-examinations had been conducted, and after the parties had filed their memoranda of fact and law.

In essence,therefore, the plaintiffs seek both an extension of time to file the affidavit and transcript under Rule 8(1) and leave to file further evidenceafter cross-examinations under Rule 84(2). [22] In assessing whether to extend the time for filing an affidavit, the Court will consider (

i) the reasons for the delay, and (ii) the"“intrinsic worth”" of the affidavit, judged by its relevance, admissibility, and potential use to the Court: Altana Pharma Inc vNovopharm Limited, 2007 FC 1183 at paras 13–22, applying Mapei Inc v Flextile Ltd, [1995] FCJ No 180, 59 CPR (3d) 211 (TD) andStrykiwsky v Stony Mountain, (FC) at paras 7–9. The ultimate question for the Court is "“how justice may best bedone between the parties”": Altana at para 22.

[23] In assessing whether to admit evidence after the conduct of cross-examination, the Court will consider (

i) the relevance of theproposed affidavit; (ii) the existence of prejudice to the opposing party; (iii) whether the affidavit will assist the Court; and (iv) theoverall interests of justice including whether the evidence was available or could have been anticipated earlier: Canmar Foods Ltd v TAFoods Ltd, 2019 FC 1229 at paras 11–12, applying Pfizer Canada Inc v Rhoxalpharma Inc, 2004 FC 1685 at para 16. [24] There is clear overlap between these factors. Considering them jointly and cumulatively, I deny the request to file Mr.

Winkler’sfurther affidavit and the attached transcript. [25] The podcast in question was aired in February 2020, before affidavits were filed and cross-examinations conducted. The plaintiffs’only explanation for not putting the transcript forward earlier is that Mr. Winkler first became aware of the podcast when reviewing Mr.Hendley’s Facebook page in December 2020, a week before the hearing. There was no suggestion the podcast was hidden or otherwiseunavailable earlier. Rather, Mr.

Winkler had simply not conducted the investigation that resulted in him becoming aware of the podcastuntil after all materials had been filed. As is often said, parties to a

summary judgment motion have an obligation to put their "“best footforward”": Miller v Canada, 2019 FCA 61 at paras 17, 40. In my view, this includes conducting whatever factual investigations theyconsider necessary to pursue or defend the motion in a timely manner to permit the facts to be put forward. [26] More importantly, I consider the proposed evidence to be of little relevance or assistance. This action is about whether Mr.Hendley’s book infringes copyright in Mr. Kelley’s books under sections 3 and 27 of the Copyright Act. How Mr.

Hendley may havewritten about the Donnellys in a different forum, 16 years after his book was first published, has no bearing on that question. The podcastin question tells a shortened version of the Donnellys’ story, in narrative form. The evidence does not indicate how long the podcast was,but the relevant portion of the transcript is 18 pages, considerably shorter than both The Outrageous Tale and The Black Donnellys. Asthe plaintiffs concede, the podcast does not purport to be an exhaustive account of what is known about the Donnellys or recounted inMr. Hendley’s book.

The plaintiffs argue they could have cross-examined Mr. Hendley about why important events were not included,or were recounted differently, in the podcast. However, it is difficult to see how the editorial selections made in preparing the podcastwould be particularly probative even of the tangential question of Mr. Hendley’s continued belief in the accuracy of Mr. Kelley’s book. [27] Nor do I consider the writing or contents of the podcast to be relevant to, or of assistance to the Court in deciding, the issue ofdamages.

The plaintiffs argue the defendants’ good or bad faith, and their conduct during the proceedings, are relevant to their claim forstatutory damages: Copyright Act, ss 38.1(5)(a)–(b). However, even if Mr.

Hendley deliberately omitted from the podcast narrativeevents that are the subject of this dispute, the plaintiffs were unable to clearly articulate whether or why this would be an exacerbating ormitigating factor in assessing damages. [28] My conclusions on the relevance of the podcast transcript also serve to answer the plaintiffs’ argument that the defendants had apositive obligation to produce the podcast as part of their discovery obligations under Rules 222 and 226. [29] In terms of the interests of justice and the prejudice to the parties, I take into account that the plaintiffs should generally be allowedto try to prove their case in the manner they consider appropriate.

Conversely, admitting the affidavit and podcast transcript would leavethe defendants unable to respond with their own evidence. The plaintiffs did not seek an adjournment of the motions, nor an opportunityto cross-examine Mr. Hendley on the transcript.

They simply sought to tender the transcript at the hearing and make argument thereon.In the circumstances of a motion that took months to prepare—all while the podcast was apparently available online—this would not befair to the defendants. [30] Considering all of these factors together, I conclude the interests of justice speak against admission of the podcast transcript.

Theevidence has little intrinsic worth, would be of little assistance to the Court in determining the central issues on these motions, the reasonsfor its delayed appearance are not convincing, and the defendants should not be required to argue evidence they have not had the chanceto respond to. The plaintiffs’ motion to tender the podcast transcript and related affidavit is therefore dismissed.

(2) Mr. Fazakas’ evidence is admissible [31] Much of the plaintiffs’ case relies on the expert evidence of Mr. Fazakas. Mr. Fazakas is an author, researcher, and retired lawyer.He has a particular interest in and knowledge of the Donnellys, having spent over fifty years as an "“avocational researcher”" of thefamily, and having written several books, articles and television documentaries about them. These include The Donnelly Album(Willowdale: Firefly Books, 1995), first published in 1977 and written under the name Ray Fazakas. Mr.

Hendley referred to TheDonnelly Album as a source in researching The Outrageous Tale and listed it in his bibliography, alongside The Black Donnellys,Vengeance, and two other books on the Donnellys. [32] Mr. Fazakas prepared two reports. In the first, he summarized the books referred to in Mr. Hendley’s bibliography (other than hisown), attached and listed other writings on the Donnellys and on Mr. Kelley’s books, and gave his opinion that some 45 passages in TheBlack Donnellys were fictional.

This included a side-by-side listing of the passages juxtaposed against passages in The Outrageous Tale,often with commentary comparing the two. In his second report, Mr. Fazakas provided further opinion on Mr. Kelley’s books and thedegree to which they were fictional, the origin of the name "“The Black Donnellys,”" as well as other sources, both fictional andhistorical, about the Donnellys. [33] The defendants argue Mr. Fazakas’ evidence should not be admitted. They submit Mr. Fazakas is not impartial, independent, andunbiased, and that he has effectively acted as an advocate for the plaintiffs.

They therefore argue he is not a properly qualified expert,and his evidence does not meet the requirements for admissibility set out by the Supreme Court of Canada in R v Mohan, (SCC), [1994] 2 SCR 9 at p 20 and White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 at para 19. They point inparticular to the fact that Mr. Fazakas is the father of counsel for the plaintiffs, that he effectively initiated this proceeding by drawing theexistence of Mr. Hendley’s book to the attention of Mr. Winkler and noting similarities with Mr.

Kelley’s books, and that he wasresponsible for identifying the allegedly infringing passages in The Black Donnellys the plaintiffs now rely on. [34] As a preliminary matter, the plaintiffs argue the defendants should not be permitted to object to Mr. Fazakas’ evidence, since theydid not raise the issue until their memorandum of fact and law on these motions despite having received the reports years earlier. I

disagree. Regardless of any prior disclosure, the plaintiffs’ reliance on Mr. Fazakas’ reports for the purposes of their

summary judgment motion did not occur until it filed them with its record. It was appropriate for the defendants to object to such evidence in response. Early notice of any such objection is certainly to be encouraged: R v Docherty , 2010 ONSC 3628 at para 12 . However, I cannot conclude in these circumstances that the defendants waived any right to object by not expressly raising the issue earlier.

Nor can the plaintiffs claim to be taken by surprise by the objection, as the family relationship was clearly a potential issue from the outset, and the defendants asked pointed questions about the relationship and Mr. Fazakas’ role in the litigation on cross-examination, confirming and expanding their grounds for objection. [ 35 ] Turning to the merits of the objection, Justice Cromwell for the Supreme Court in White Burgess set out a two-step inquiry for determining the admissibility of expert evidence.

First, the proponent must establish the threshold admissibility of the evidence based on the four factors set out in Mohan : relevance, necessity, the absence of an exclusionary rule, and a properly qualified expert: White Burgess at para 23; Mohan at p 20. Second, as a discretionary matter, the Court balances the potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the risks: White Burgess at para 24; Mohan at p 21.

These criteria apply to copyright infringement cases as in other intellectual property cases: Cinar Corporation v Robinson , 2013 SCC 73 at para 49 . (

a) Step 1 of the White Burgess Analysis: Admissibility [ 36 ] The defendants argue that Mr. Fazakas does not meet the " “qualified expert” " requirement of Mohan , which engages the expert’s independence and duty to the Court: White Burgess at paras 52–53.

In discussing this duty, Justice Cromwell adopted the language of Justice Cresswell in The Ikarian Reefer , underscoring the importance of expert evidence being, and being seen to be, the " “independent product of the expert uninfluenced as to form or content by the exigencies of litigation” " and " “objective unbiased opinion” " : White Burgess at para 27, adopting National Justice Compania Naviera SA v Prudential Assurance Co Ltd ( " “The Ikarian Reefer” " ) , [1993] 2 Lloyd’s Rep 68 (QB) at p 81, aff’d [1995] 1 Lloyd’s Rep 455 (CA) at p 496 . [ 37 ] At the same time, the Supreme Court reaffirmed that a mere appearance of bias is not enough to render expert testimony inadmissible, and that the standard is not " “whether a reasonable person would consider that the expert is not independent” " : Mouvement laïque québécois v Saguenay (City) 2015 SCC 16 at para 106 .

Rather, an expert’s evidence will be inadmissible where their lack of independence renders them " “incapable of giving an impartial opinion in the specific circumstances of the case” " : White Burgess at para 36, quoting Mouvement laïque québécois at para 106 . This will be a rare circumstance: White Burgess at para 49.

Ultimately, the question is whether the expert is able and willing to carry out their primary duty to the Court to be fair, objective, and non-partisan: White Burgess at paras 46, 50. [ 38 ] In making this assessment, the Court is to consider the particular circumstances, the nature of the proposed evidence, and the nature and extent of any connection between the expert and the litigation or a party: White Burgess at para 49. The defendants rely in particular on the following passage from the Supreme Court’s description of these concerns, noting Mr.

Fazakas’ familial relationship with counsel and his advocacy on behalf of the plaintiffs: For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern.

The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court. Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court .

I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence. [Emphasis added; White Burgess at para 49.] [ 39 ] The defendants also point to the 2010 decision of the Ontario Superior Court of Justice in Docherty .

There, Justice Wein found inadmissible a psychiatric report prepared by the father of defence counsel: Docherty at paras 1–4, 14 . She noted the public perception of the introduction of such evidence, particularly in a case of manslaughter sentencing, stating that " “[t]he apprehension of bias as well as the possibility of a subconscious bias precludes its admissibility” " : Docherty at para 14 .

Justice Wein also expressed particular concern over the fact that the psychiatrist’s report did not disclose the relationship with his son: Docherty at para 15 . [ 40 ] I believe the defendants have satisfied their burden to show there is a " “realistic concern” " that Mr. Fazakas’ evidence should not be received: White Burgess at para 48. The burden is therefore on the plaintiffs to establish on a balance of probabilities that the admissibility threshold is met: White Burgess at para 48. [ 41 ] The plaintiffs argue that despite the familial relationship, the evidence shows Mr.

Fazakas is aware of his primary duty to the Court, and is able and willing to carry it out. They point to a number of circumstances they say support this conclusion and distinguish the situation from that in Docherty . In particular, they argue Mr. Fazakas’ evidence is consistent with his prior writings on Mr. Kelley’s books, even prior to the litigation, indicating that the “acid test” referred to by the Supreme Court of Canada—whether the evidence would be the same regardless of which party retained him—is met: White Burgess at para 32. They note that unlike the psychiatrist in Docherty , Mr.

Fazakas’ report openly discloses that he is the father of plaintiffs’ counsel. The plaintiffs further argue Mr. Fazakas was involved in the matter before his son, who was not the plaintiffs’ original counsel, so the issue should be considered a “choice of counsel” issue rather than a “choice of expert” issue. Finally, the plaintiffs argue the Court can infer there are no other living experts who could provide the evidence Mr.

Fazakas provided. [ 42 ] With respect to the last of these points, in the absence of any evidence the plaintiffs tried and failed to retain another expert, I cannot place reliance on the supposed necessity of having Mr. Fazakas as an expert. Nor do I consider it particularly material whether counsel

or the expert was involved first, as the concern over potential bias and an inability to be objective remains the same. [43] Nonetheless, I am satisfied on balance that Mr. Fazakas’ evidence meets the “not particularly onerous” threshold of admissibility:White Burgess at para 49. I am satisfied based on my review of Mr.

Fazakas’ evidence, including the transcript of his cross-examination,that despite his relationship with counsel and his connection with the subject-matter, he was aware of his primary duty to the Court, andwas able and willing to carry it out: White Burgess: at para 49. [44] I share the concerns raised by Justice Wein in Docherty regarding the appearance of having the father of counsel give opinionevidence. However, subsequent to Docherty, the Supreme Court in White Burgess confirmed the applicable standard is not that of the“reasonable observer”: White Burgess at paras 36, 50.

While the public perception of the administration of justice remains a relevantconsideration, the standard for admissibility is that described above. In addition, the context of this proceeding, in which private partiesare disputing copyright infringement, is different than the sentencing at issue in Docherty, where public interest considerations take on aheightened importance: Docherty at para 14.

While it will be rare that evidence from a relative of counsel will be tendered, and may berare that it is admitted, I conclude it is not automatically a bar to admissibility in all cases or circumstances. [45] With respect to the allegation that Mr. Fazakas’ reports engage in advocacy, I agree there are aspects of the reports that go beyondMr. Fazakas’ expertise regarding the history of the Donnelly family. I have particular concern with Mr.

Fazakas’ efforts to address notonly what is fact and fiction in The Black Donnellys but the degree to which passages in The Outrageous Tale are similar to those in TheBlack Donnellys. Mr. Fazakas is not an expert on this issue and the Court does not need expert assistance on it.

This included Mr.Fazakas making comparisons between excerpts of the two texts in which he had deleted passages to magnify the apparent similarity.However, while I believe these aspects of his evidence do not assist the Court, I do not believe they disqualify his evidence as a whole orrender his reports inadmissible. [46] The familial relationship is a matter of concern and is a situation that ought be avoided.

Overall, however, I conclude that this is notone of the “very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisanevidence” given the particular circumstances of this matter and Mr. Fazakas’ evidence: White Burgess at para 49. I conclude that Mr.Fazakas’ evidence meets the Mohan threshold of admissibility. (

b) Step 2 of the White Burgess Analysis: Gatekeeping [47] Even where expert evidence meets this basic threshold for presumptive admissibility, concerns about impartiality continue to play arole at the second discretionary "“gatekeeping”" stage, where the helpfulness of the evidence is weighed against the potential dangersassociated with expert evidence: White Burgess at paras 16, 19, 24, 54; Mohan at p 21. Justice Cromwell sounded a note of caution inrespect of this second stage in jurisdictions where the rules do not permit the weighing of evidence on

summary judgment motions: WhiteBurgess at para 55. Justice Fuhrer recently concluded that these concerns apply on

summary judgment motions brought in the FederalCourt under Rule 215: Rallysport Direct LLC v 2424508 Ontario Ltd, 2020 FC 794 at para 20. If weighing of expert evidence is entirelyprecluded under Rule 215, this would suggest that Mr. Fazakas’ evidence should be admitted based exclusively on the first step of theWhite Burgess analysis. [48] The question of weighing the expert evidence also arises given the defendants’ arguments that, even if admitted, the reports shouldbe given little or no weight both because of the independence issue and because of the limited probative value of the evidence.

I need notdecide these issues since the outcome on these motions is not ultimately affected by the weight given to Mr. Fazakas’ evidence.However, I make the following observations. [49] First, it is clear that issues of credibility, which can be a central factor in ascribing weight to evidence, should not be decided on amotion for

summary judgment: Rallysport (2019) at para 42(F); Newman v Canada, 2016 FCA 213 at para 57; Magonza v Canada(Citizenship and Immigration), 2019 FC 14 at paras 24, 29. In the present case, there are no credibility issues to resolve. Nor is there anycontrary expert evidence tendered by the defendants. [50] Second, despite the general caution against weighing of evidence on a

summary judgment motion, the Federal Court of Appeal hasrecognized that at least some weighing and assessing of evidence can occur. In Canada v 100193 PEI Inc, the Court of Appeal upheldthis Court’s decision granting in part a

summary judgment motion, finding that there was no basis to interfere with the weight the Courtplaced on the evidence: Canada v 100193 PEI Inc, 2016 FCA 280 at para 32, aff’g 2015 FC 932, lv app ref’d(SCC). Similarly, in Badawy v Igras, Justice Manson found he did not need to assess credibility since the evidence, even on its face, wasnot probative of the material facts and issues, a finding upheld by the Court of Appeal: Badawy v Igras, 2017 FC 619 at paras 44–47,aff’d 2019 FCA 153 at paras 3, 7, 10–15. Since probative value can be considered an element of weight, this suggests that at least someform of weighing is permissible on a

summary judgment motion: Magonza at para 29. [51] Had I needed to, and to the extent Rule 215 permits me to, weigh Mr. Fazakas’ reports to assess their admissibility, I wouldconclude that such a balancing supports their admission. As outlined above, there are aspects of the reports that are unhelpful, such asMr. Fazakas’ comparisons of the similarity of passages. However, the primary aspect of Mr. Fazakas’ opinion on whether information inThe Black Donnellys is fact or fiction is helpful, although ultimately not determinative, in assessing the issues relevant to whether therehas been substantial copying.

On the other side of the balance, there are no significant concerns in this case regarding the "“risks”"identified in White Burgess regarding confusion, attornment to opinion, prejudice, junk science, or a contest of experts: White Burgess atparas 16–18. [52] I conclude Mr. Fazakas’ evidence should be admitted. In doing so, I need not invariably accept his opinions. But I shall considerthose opinions as given, and do not need to assess either their credibility or competing expert opinion. C. The Plaintiffs Have not Established Infringement of Copyright

(1) General principles: fact, fiction, and copyright protection

[53] Copyright subsists in Canada in every original literary work of which the author is a citizen or resident of a treaty country:Copyright Act, ss 2 ("“every original literary, dramatic, musical and artistic work”", "“treaty country”"), 5(1)(a); CCH Canada Ltd v LawSociety of Upper Canada, 2004 SCC 13 at paras 8, 14. An "“original”" work is one that involves the exercise of skill and judgment andis not simply copied from another work: CCH at paras 16, 23, 25, 28. [54] Copyright subsists whether an original literary work is one of fiction or nonfiction. The Copyright Act makes no distinction betweenthe two.

That said, copyright protection does not extend to "“facts or ideas”" but to the original "“expression of ideas”": CCH at paras 8,14–15, 22; Hager v ECW Press Ltd, (FC), [1999] 2 FC 287 (TD) at para 44; Maltz v Witterick, 2016 FC 524 at paras29–32. This does not mean that literary works on historical or factual subjects are less worthy of copyright protection. It simply meansthat copyright subsists in the "“particular means, method, and manner”" in which those facts are presented in the work, rather than in theunderlying facts themselves: Maltz at para 31; Hager at paras 45–46.

This originality may include the "“structure, tone, theme,atmosphere and dialogue”" used in presenting the facts: Maltz at para 33. [55] The principle that there is no copyright in facts is one of long standing. It was affirmed by the Ontario Court of Appeal in Deeks vWells, [1931] OR 818, (CA), aff’d [1933] 1 DLR 353, (UK JCPC). There, Ms. Deeks alleged thatMr.

Wells infringed copyright in her unpublished historical book titled "“The Web”" by obtaining the manuscript from the publisher andusing it to write his book "“The Outline of History,”" adopting her general plan and ideas. [56] The Court of Appeal’s rejection of this claim was based primarily on its conclusion that Ms. Deeks had not established Mr. Wellshad access to her unpublished manuscript. However, in concurring reasons Justice Orde noted that even if the work had been publishedand accessible, Mr.

Wells would have been entitled to refer to it in writing his own work: If the plaintiff’s work “The Web” had already been published and distributed throughout the world as widely, say, as “TheEncyclopaedia Britannica,” could an action for an infringement of the plaintiff’s copyright by reason of anything appearingin “The Outline of History” have possibly succeeded, even if it were proved that the defendant Wells had made use of apublished copy of “The Web” in writing his book? There can be no copyright in the facts of history or in their chronologicalsequence.

Had “The Web” been published, the defendant Wells was as free to consult and use it in the preparation of hiswork as the plaintiff was to consult and use “The Encyclopaedia Britannica” or any other publication as a source ofinformation. Infringement of copyright in such cases must, as a general rule, consist of the copying of the words of anotherin the order in which he has used them.

The use of the same historical facts or of the same ideas is not enough. [Emphasis added.] [57] The principle that there is no copyright in facts is relevant to the assessment of whether there has been a substantial taking of a work.As copyright means the sole right to "“produce or reproduce the work or any substantial part thereof,”" any work that reproduces a"“substantial part”" of a work in which copyright subsists infringes that sole right: Copyright Act, ss 2 ("“infringing”"), 3(1), 27; Cinar atparas 1, 25.

In Cinar, Chief Justice McLachlin described the notion of "“substantial part”" in terms that relate it directly to the originalityof the work: A substantial part of a work is a flexible notion. It is a matter of fact and degree. “Whether a

part is substantial must bedecided by its quality rather than its quantity[.]” […] What constitutes a substantial

part is determined in relation to theoriginality of the work that warrants the protection of the Copyright Act. As a general proposition, a substantial part of awork is a part of the work that represents a substantial portion of the author’s skill and judgment expressed therein. [Emphasis added; citation omitted; Cinar at para 26.] [58] In Maltz, Justice Boswell considered the relationship between this description of substantiality and the principle that there is nocopyright in facts. He concluded that since facts are not protected by copyright, they are not part of a work’s originality.

As a result, anyfacts that may be copied or taken from a copyright work by a defendant should not form part of the assessment of whether a substantialpart of the work was taken: Maltz at paras 35–36. [59] As Justice Boswell pointed out, this approach accords with that taken to "“historical fiction”" by the United States District Court forthe Southern District of New York in Effie Film, LLC v Pomerance, 909 F Supp 2d 273 (SDNY, Dec 18, 2012) at pp 297–298.

It is alsoconsistent with that taken by the England and Wales Court of Appeal (Civil Division) in Baigent & Anor v The Random House GroupLtd, [2007] EWCA Civ 247.

There, Lord Justice Mummery recognized that while original expression may include not only language butselection, arrangement, and compilation of research material, it "“does not […] extend to clothing information, facts, ideas, theories andthemes with exclusive property rights, so as to enable the Claimants to monopolise historical research or knowledge and prevent thelegitimate use of historical and biographical material, theories propounded, general arguments deployed, or general hypotheses suggested(whether they are sound or not) or general themes written about”": Baigent at para 156. [60] At the same time, Cinar cautions that undertaking the substantiality analysis by excluding non-protectable elements at the outset caninterfere with the necessary holistic analysis: Cinar at paras 34–36.

As Justice Phelan phrased it, "“a trial judge should not eliminate thenon-protected elements of the works and compare the leftover similarities”": Pyrrha Design Inc v Plum and Posey Inc, 2019 FC 129 atpara 127.

Such non-original elements may "“form part of the substantial part of an author’s skill and judgment where the specificcombination of these elements has been copied by the alleged infringer”": Pyrrha Design at para 128. [61] Cinar also sets out a number of other important guiding principles to assess whether a work copies a substantial part of a copyrightwork: While copyright protects expression rather than facts or ideas, the protection is not limited to the specific words used.

Rather, theCopyright Act protects against both "“literal and non-literal”" copying, so long as the copied material forms a substantial part of theinfringed work: Cinar at para 27. A "“qualitative and holistic”" approach to the assessment should be taken, in which the Court looks at the two works as a whole,

rather than a " “piecemeal” " approach based on isolated passages, to determine whether the defendant has unduly interfered with the plaintiff’s copyright: Cinar at paras 35–36. The assessment is whether the copying constitutes a substantial part of the plaintiff’s work, rather than the defendant’s work. Thus, the addition of elements in a defendant’s work may be less relevant to the analysis. However, differences may be so great that the work viewed as a whole is not an imitation but a new and original work: Cinar at paras 39–40; see also Maltz at para 37 .

Ultimately, the assessment is " “a matter of nuance, degree, and context” " : Cinar at para 40, adopting France Animation, sa c Robinson , 2011 QCCA 1361 at para 66 ; see also Lainco Inc v Commission scolaire des Bois-Francs , 2017 FC 825 at paras 171– 172 . [ 62 ] In performing this task, the Court will typically consider a number of factors, including the importance and originality of the material, whether the infringement has diminished the value of copyright, the scope of the copyright protection, whether the defendant intentionally took the material to save time and effort, and whether the material was used in the same or similar fashion: U & R Tax Services Ltd v H & R Block Canada Inc , [1995] FCJ No 962 (TD) at para 35 ; Maltz at para 38 ; Wiseau Studio, LLC et al v Harper et al , 2020 ONSC 2504 at paras 161–162 .

While U & R Tax and Maltz refer to the " “quality and quantity of the material taken” " as a factor, the Supreme Court underscored in Cinar that the analysis is focused on quality rather than quantity: Cinar at para 26. [ 63 ] Before turning to the application of these principles, I will address the unusual context of this action, in which the parties disagree over whether elements of The Black Donnellys are historical facts or fictional and original features of Mr. Kelley’s story telling.

(2) The current context: fact vs fiction [ 64 ] James and Johannah Donnelly came to Canada from Tipperary, Ireland with two young sons. They settled in Biddulph Township in 1847, where they had five more sons and a daughter. After a land dispute developed into a long-running feud, James Donnelly killed his neighbour, Patrick Farrell, in a fight in 1857. He was convicted of murder and served a prison sentence. Some of the Donnelly sons later established a stagecoach line in 1873, which competed with another line run by a man named Flanagan (or Flannigan).

The Donnelly sons, as well as James upon his release from prison, had ongoing trouble with the law and their neighbours. In the early hours of February 4, 1880, James, Johannah, their sons John and Tom, and their niece Bridget were murdered by a mob. Their violent end and the trial of their suspected killers were reported widely in Canadian newspapers of the day. After one was acquitted, however, the remaining charges were dropped and no one was ever convicted of the Donnelly murders. [ 65 ] These broad facts are accepted as being part of nineteenth century Ontario history.

They are recounted in contemporaneous reports and in a number of books about the Donnellys, of various degrees of scholarship, including The Black Donnellys and The Outrageous Tale . The plaintiffs take no issue with the inclusion of these facts in The Outrageous Tale , and do not argue their inclusion itself shows or contributes to a finding of copyright infringement. [ 66 ] Rather, relying on Mr. Fazakas’ reports, the plaintiffs identify a series of 45 passages in The Outrageous Tale they say contain facts and events not drawn from the real history of the Donnelly family, but from The Black Donnellys .

One of these (numbered Item 27 in Mr. Fazakas’ first report) is the phrase " “The Black Donnellys” " itself, which the plaintiffs allege was a creation of Mr. Kelley. The plaintiffs describe the remaining passages as falling into three categories: (

i) events they allege were purely invented by Mr. Kelley; (ii) events that would no doubt have happened but of which there is no historical record, such that the details were invented by Mr. Kelley; and (iii) events that are known to have happened, but to which Mr. Kelley added " “embellishments” " and style. [ 67 ] Into the first category of allegedly fictional events fall nine passages (Items 2 to 10) that relate to the street battle described in the opening paragraph of these reasons; three passages (Items 17 to 19) about early encounters between James Donnelly and Patrick Farrell (who Mr.

Kelley calls John and who I will therefore just call Farrell); two passages (Items 22 and 23) about the Donnellys maiming Flanagan’s horses; two passages (Items 43 and 44) in which the Donnellys visit a Biddulph fortune teller known as " “Grandma” " Bell; and a number of individual passages about other Donnelly crimes (Items 20, 21, and 37 to 40). [ 68 ] The plaintiffs’ second category—events that would have happened but of which there is no historical record—covers two passages (Items 13 and 14) about how James and Johannah met; a passage related to James Donnelly’s return from prison (Item 29); and a passage about the opening of the Donnelly stagecoach line (Item 30). [ 69 ] The third category, covering real events that Mr.

Kelley allegedly embellished, include five passages (Items 11, 12, 24, 25, and 35) about an incident in which the Donnellys fought with Lucan constables at a wedding; two passages (Items 28 and 36) about a mob visiting the Donnellys in search of a cow; one passage (Item 26) about a constable being shot at; and three passages (Items 31 to 33) relating to the fight in which James Donnelly killed Farrell. Seven further passages in this category relate to individual facts the plaintiffs say are untrue or invented by Mr.

Kelley: the height of James Donnelly Jr. (Item 1); the availability of land grants (Item 15); Farrell’s former occupation (Item 16); the attitude of William Donnelly’s in-laws (Item 34); where Bridget Donnelly slept the night of the murders (Item 41); that those charged for the murders were " “ringleaders” " (Item 42); and whether a Constable Everett resigned or was fired (Item 45).

I note as an aside that this is not a case where identification of small but striking similarities, such as the copying of errors, may provide evidence a defendant had access to and drew from a plaintiff’s work: see, e.g. , Deeks v Wells (CA) per Riddell, JA. Mr. Hendley cited Mr. Kelley’s works in his bibliography and confirms they were among the sources he drew from. [ 70 ] The plaintiffs contend that Mr. Hendley’s inclusion of these fictional events and fictional aspects of real events amounts to copyright infringement.

As they state, " “it is Hendley’s colourable imitation of the fictional elements of Kelley’s work – Kelley’s creative embellishments – that form the basis of this action.” " [ 71 ] The plaintiffs argue, in essence, that The Black Donnellys is a work of historical fiction or biographical fiction: it tells a fictional tale against the backdrop of real world events and individuals, adding characters, events, and details to enliven the story for the reader. They argue the taking of these fictional elements is an important part of the substantial taking of The Black Donnellys and Vengeance by Mr.

Hendley in The Outrageous Tale . They also allege The Outrageous Tale copies Mr. Kelley’s " “cinematic” " style of telling aspects of the

story, including through the choice of certain perspectives, the sequence of events, and in some cases particular language. (

a) Mr. Kelley’s representations regarding the truth of his story [ 72 ] What makes this case unusual is that The Black Donnellys is not presented as a work of historical or biographical fiction. To the contrary, it is presented as a " “true crime” " story, as The True Story of Canada’s Most Barbaric Feud . This phrase appears as a description or subtitle on the cover of most of the editions of The Black Donnellys shown in the evidence.

In the edition of the book filed with the Court, it is not on the cover but is the title of the Introduction. [ 73 ] This assertion of truth is backed up by a number of statements made by the author in the book. At the conclusion of the Introduction, dated April 1953, Mr. Kelley states: The material for the following pages was gathered from old newspapers, police and court records, as well as other unimpeachable sources and by several trips to the Lucan area. [ 74 ] In various places throughout the book, Mr. Kelley identifies the source of the information he recounts.

He refers to personal discussions with descendants and area locals; says that certain events (such as the Donnellys having cut the tongues of Flanagan’s horses) remain the subject of debate among those old enough to have known the Donnellys; quotes personal testimony and contemporaneous news articles; and refers to the many historical records he reviewed. [ 75 ] In a number of cases, Mr. Kelley refers to the source of his information being individuals with direct knowledge. For example, Mr. Kelley begins his recounting of the street battle, which Mr.

Fazakas opines is " “a fictional fantasy conjured up by Kelley from his imagination,” " with the following paragraph: Inside the coach and ready to be off, were three passengers, a farm implements salesman and two women. One of the latter was destined to live to an unusual age. In later life she settled in British Columbia and before her death related the story of that wild morning to some scribe, who eventually wrote an

article on it . [Emphasis added; The Black Donnellys at p 84.] [ 76 ] Similarly, Mr. Kelley provides an eyewitness for the Donnellys’ visit to " “Grandma” " Bell, which Mr. Fazakas opines is " “a fiction made up by Kelley” " in its entirety. Mr. Kelley states that his recounting of the story was given by Ms. Bell herself to a reporter: " “The old woman, who later told and retold the story to any who would listen, related it to a reporter” " : The Black Donnellys at p 143. The remainder of the scene is presented in Ms. Bell’s own words, as recounted to that reporter. [ 77 ] Toward the end of the book, Mr.

Kelley refers to the " “scoop” " of having spoken directly to an anonymous " “elderly Biddulph inhabitant” " who was alive at the time of the murders and whose father was a member of the mob who had killed the Donnellys and relayed his story. He describes this as " “[t]he story of a man who was there! ” " [emphasis in original], and one which Mr. Kelley believed " “to be absolutely true in every detail” " : The Black Donnellys at p 155. [ 78 ] This is not to say these incidents necessarily happened, either as Mr. Kelley described, or at all. Rather, it is to note that Mr.

Kelley himself indicates that the events and information he describes are not his original creations but facts obtained from reliable sources. [ 79 ] As the defendants emphasize, The Black Donnellys has been sold as a work of nonfiction for 65 years. It is published with a Dewey Decimal Classification number that shows it in the " “Criminology” " category (364) of the " “Social sciences” " classification (300).

It similarly bears a Library of Congress (LC) Classification System number again showing it being in the " “Criminology” " category (HV6001-7220.5) within " “Social Sciences” " (H), and in particular in the " “Crimes and criminal classes” " category (HV6774–7220.5). (

b) The plaintiffs’ arguments that the identified passages are not " “facts” " [ 80 ] Despite the classification of The Black Donnellys as nonfiction and Mr. Kelley’s statements about his sources and the truth of the story, the plaintiffs rely on Mr. Fazakas’ opinion to assert that much of it is either mistaken or fictional. They therefore argue that the principle that there is no copyright in facts does not apply. [ 81 ] To his credit, Mr.

Fazakas frankly acknowledges that his opinion about the truth of the events in The Black Donnellys is generally given " “in the negative.” " That is, his opinion is based on there being no mention of certain events or individuals referred to by Mr. Kelley in the available historical primary sources. Given the depth of his familiarity with those sources, he concludes it is " “fair and reasonable to assume” " the events or individuals (

i) did not occur or exist, and (ii) Mr. Kelley invented them out of his own imagination. [ 82 ] The defendants dispute that the facts in the identified passages are untrue. In making their arguments regarding the factual or fictional nature of the events and details, both parties pointed to certain primary sources (contemporaneous newspapers and reports), pre- Kelley secondary sources (accounts of the Donnelly story before Mr. Kelley’s works), and post-Kelley secondary sources (accounts after Mr. Kelley’s works, which range from plays and novels to websites, essays, and historical works).

The plaintiffs point to these to show that the relevant events and details are described in writing for the first time in The Black Donnellys . The defendants point to them to show that the principal events are seen in multiple works, including those Mr. Hendley used in his research. With respect to the post- Kelley secondary sources, Mr. Fazakas gives his view that where they include incidents that appear for the first time in The Black Donnellys , the later authors copied them from Mr. Kelley’s book. [ 83 ] In some cases, Mr. Fazakas’ own reports recognize Mr.

Kelley is not the source of the alleged fiction or error. In particular, Mr. Fazakas refers to W. Stewart Wallace’s Murders and Mysteries, a Canadian Series (Toronto: Macmillan, 1931), a pre-Kelley work with a

chapter on the Donnelly murders entitled The Lucan Murders . Mr. Fazakas identifies a number of factual errors in that chapter, including three that also appear in The Black Donnellys . Mr. Fazakas gives his opinion that " “Kelley copied these errors into his 1954 book.” " Despite recognizing that they did not originate with Mr. Kelley, Mr. Fazakas nonetheless lists some of these details as areas

where Mr. Hendley copied Mr. Kelley (Items 33, 36). Whether these "“facts”" are true, or were the creations of Mr. Wallace, isultimately irrelevant in this action, as Mr. Fazakas’ evidence indicates that they were not the original work of Mr. Kelley. [84] Similarly, Mr. Fazakas asserts that the fact that Bridget Donnelly was sleeping upstairs on the night of the murders (Item 41) was"“an invention by Kelley.”" However, he also states that the first journalist on the scene of the murders, J. Lambert Payne, reported in1926 that Bridget and Donnelly’s son Tom slept upstairs that night. As Mr.

Fazakas admitted on cross-examination, Mr. Kelley couldhave obtained this fact from Mr. Payne or from another source. Again, whether Bridget Donnelly actually slept upstairs on the night ofFebruary 3–4, 1880 or not, there is no evidence this detail was an original "“invention by Kelley.”" [85] In some cases, it is clear Mr. Kelley is wrong. For example, Mr. Kelley states that William Haskett testified at James Donnelly’smurder trial (Item 21). Mr. Fazakas confirms, having reviewed archival records including the bench notes of the presiding judge, thatMr.

Haskett did not testify at the trial, and I am prepared to accept this. However, one would only know this by consulting the primarysources Mr. Fazakas consulted. Anyone reading The Black Donnellys and Mr. Kelley’s statements that he had reviewed "“police andcourt records”" would understand that Mr. Haskett had testified. [86] Conversely, in some cases, Mr. Fazakas has overstated what The Outrageous Tale says. For example, he suggests Mr. Hendleycopied Mr. Kelley’s assertion that government land was available in Biddulph in 1847 (Item 15). In fact, Mr.

Hendley says nothingabout the availability of government land, simply that the tract on which James Donnelly settled was "“called ‘Government Lot #18’.”"That phrase does not appear in The Black Donnellys, but does appear in a post-Kelley source. Similarly, Mr. Fazakas suggests that Mr.Hendley repeats Mr. Kelley’s fiction that William Donnelly served his full nine month sentence for his fight with the police at thewedding (Item 35).

However, The Outrageous Tale simply states that William was sentenced to nine months in jail, which is agreed tobe true, and then described his actions after his release without discussing in detail how long he was in prison. [87] In most cases, however, the situation is less clear. Mr. Fazakas says that based on his knowledge of the available sources, there is nohistorical confirmation of the incidents or facts described in Mr. Kelley’s book, while Mr.

Kelley himself says the incidents wereconfirmed in documentary records or through oral accounts that might not appear in other sources. [88] Whether these events or details in The Black Donnellys are considered "“facts”" affects the assessment of whether there has beencopyright infringement, since there is no copyright in facts. It is not disputed that The Black Donnellys and Vengeance are, as a whole,original works.

However, as discussed, the assessment of whether there has been copying of a "“substantial part”" of either book isdetermined in relation to the originality of the work that warrants the protection of the Copyright Act: Cinar at para 26. Facts, or othermaterial not original to the author, are not part of the work’s originality: Maltz at paras 35–36; CCH at paras 8, 22. In this case, theplaintiffs’ case of substantial copying is built on portions of The Black Donnellys they identify as being fictional creations of Mr.

Kelley.If those passages are treated as entirely original, the very inclusion of the events in The Outrageous Tale might be considered a "“non-literal copying”" of these passages. If they are considered to relay "“facts,”" then copyright resides only in the specific expression ofthem: Maltz at paras 30–32; Hager at paras 45–46. [89] I conclude that I need not try to determine whether each of the asserted facts and events identified by Mr. Fazakas is historically"“untrue,”" whether they are directly contradicted by the historical record, or whether they might have been derived from sources knownonly to Mr. Kelley.

As I discuss in the next section, I conclude that Mr. Kelley’s plausible assertions that the facts and events in questionare true is sufficient to find that they are not protected by copyright.

(3) Originality, facts, and assertions of truth [90] The parties were unable to point to, and the Court is not aware of, any Canadian cases dealing with a situation in which a work ispresented as nonfiction, but the owner of copyright asserts in litigation that much of it is actually fictional and thus original.

The situationmust therefore be considered based on the Copyright Act and the basic principles reflected in it. [91] As the plaintiffs point out, copyright in Canada is purely statutory law, with rights and remedies exhaustively set out in theCopyright Act: CCH at para 9; Théberge v Galerie d’Art du Petit Champlain inc, 2002 SCC 34 at para 5; Bishop v Stevens, (SCC), [1990] 2 SCR 467 at p 477. Here, it is the statutory terms "“original”" and "“substantial part”" that are at issue in particular:Copyright Act, ss 2 ("“every original literary, dramatic, musical and artistic work”"), 3(1), 5(1).

These terms must be considered in theirgrammatical and ordinary sense, harmoniously with the scheme and object of the Copyright Act, and the intention of Parliament: Re:Sound v Motion Picture Theatre Associations of Canada, 2012 SCC 38 at para 32.

Part of this statutory context is the basic principle thatcopyright protection does not extend to facts: CCH at para 22; Cinar at para 26. [92] The Supreme Court has noted on numerous occasions that the Act seeks to achieve an "“appropriate balance between creators’ rightsand users’ rights”": Keatley Surveying Ltd v Teranet Inc, 2019 SCC 43 at paras 43–44, citing Théberge at paras 30–31; CCH at para 48.All provisions of the Copyright Act must be interpreted with this balance in mind: Keatley at para 46.

In my view, this balance requiresthat the rule that copyright does not extend to "“facts”" must include those matters that are plausibly represented to be facts, even if theymay subsequently be shown to be untrue. Put another way, permitting a creator to represent something as fact, and thus not subject tocopyright, but then sue a subsequent user for infringement by claiming it was not fact, would not respect the needed balance betweencreators and users. [93] Looking at the creator’s side of the balance, there is a need to obtain a "“just reward”" for a creator: Théberge at para 30; CCH atpara 23.

Rewarding a creator for holding a work out as nonfiction—presumably to make it more attractive to the purchasing public—andthen withdrawing that representation after another author has produced their own work goes beyond a "“just reward”" for the creativeefforts of an author.

It would also be an unusual outcome if the extent to which a historical work is protected by copyright, and theresulting reward to its creator, were inversely proportional to its accuracy. [94] On the user’s side of the balance is "“the public interest in promoting the encouragement and dissemination of works”": CCH atpara 23; Théberge at para 30. The encouragement of the creation of works includes the notion expressed by Justice Orde in Deeks vWells (CA) that writers should generally be permitted to consult and rely on prior nonfiction works as a source of information. There

would be an adverse impact on the ability to do so if an author could not rely on those works without independently verifying their truth, or if a copyright infringement claim could be brought by an earlier author who reverses their position on the truth of the facts. [ 95 ] Not every work of history depends solely on research confirmed through primary sources, nor should it have to. The Outrageous Tale is a case in point.

It was prepared to be part of the " “Amazing Stories” " series presented originally by a publisher known as Altitude Publishing Canada Ltd, which presented nonfiction stories that " “appeal to our sense of drama and human interest.” " Based on Altitude’s Author Guidelines for the series, the book was not designed to be an academic treatise, but a brief, gripping, and readable account of a true Canadian tale.

There is value in the " “encouragement and dissemination” " of such works that would be hindered if the authors of such works were required to effectively confirm the veracity from primary sources of every fact presented in a nonfiction narrative before being able to rely on the author’s statement that it is true. Mr. Hendley was entitled to consult The Black Donnellys and use the information contained in it in preparation of his work, on the understanding that the information was presented as a version of history, even if there may be other versions of history, and even if Mr.

Kelley’s version of history may be less historically accurate than other versions. [ 96 ] The foregoing conclusion is also supported by the difficulties inherent in using copyright law as a forum to attempt to dictate which version of history is " “true.” " As the defendants note, copyright is about the rights associated with the creation of works and " “is not a tool to ensure accuracy in research or to resolve historical debate.” " While the Court is frequently called upon to determine which competing version of events has been established in accordance with the rules of evidence, copyright law and notions of originality are ill suited to deciding which of two or more historical accounts based on different sources is " “accurate” " or " “true” " from a historical perspective.

This concern is highlighted in the circumstances in which this action arises, as the plaintiffs proffered no information regarding Mr. Kelley’s research methods or records, and he could not be subject to examination regarding his stated sources. [ 97 ] I therefore conclude that where an author presents a work as historically factual, they cannot complain in a copyright infringement action that a subsequent author has taken them at their word and relied on the facts they presented as being true.

In other words, an author cannot seek to disprove their own historical account and thereby purport to claim copyright over the " “facts” " contained in it on the basis that those facts are not true. [ 98 ] While I come to this conclusion independently, I note that it accords with views expressed by Professor Teresa Scassa in an

article discussing the notion of " “facts” " in copyright: T. Scassa, Original Facts: Skill, Judgment, and the Public Domain (2006) 51 McGill LJ 253, 2006 CanLIIDocs 98 . Written in the wake of the Supreme Court’s decision in CCH , the

article considers the scope of the " “no copyright in facts” " principle affirmed in that case. [ 99 ] Professor Scassa addresses three types of " “facts” " (or information): (

i) information knowable only through the exercise of considerable skill and judgment (such as scientific facts); (ii) information that is valuable only because of how it is selected or arranged; and (iii) " “[i]nformation that is not necessarily ‘true’” " : Scassa at pp 264–268.

This third " “not necessarily true” " category includes " “filtered or mediated” " facts such as news, biographies, and histories that are " “put forth as truth but are coloured by perspective.” " Referring to the United States Supreme Court’s decision in International News Service v Associated Press , 248 US 215, 39 S Ct 68 (1918) and two more recent American cases, Nash v CBS Inc , 899 F.2d 1537 (7th Cir 1990) and Hoehling v Universal City Studios Inc , 618 F.2d 972 at p 978 (2s Cir 1980), Professor Scassa makes the following observations: In this statement [from International News Service ], Justice Pitney seems to accept that it is not essential that the information excluded from copyright protection be objectively true.

Objective truth is not the basis for excluding the information from copyright protection . It is certainly the case that some information reported from the front lines would be verifiable and true, but it is also likely that some information might actually be erroneous , some might be presented in a highly selective manner, which gives a less than accurate overall picture of events, and some might be downright false-produced as part of the inevitable propaganda machinery of war.

Yet it fits the definition of “information presented as having objective reality,” regardless of whether it actually has objective reality.

This approach to facts is pragmatic, as it would likely be too difficult to engage in an analysis of what bits of information are fact, which are fiction, and which aggregates of fact amount to fiction or partial fiction because they are so selective. […] This American case law recognizes that “facts” do not have to be true or even verifiable to be excluded from copyright protection . [Emphasis added; Scassa at pp 267–268.] [ 100 ] From the Canadian perspective, Professor Scassa refers to the reasons of Justice Orde in Deeks v Wells (CA) , and to the decision of the Judicial Committee of the Privy Council affirming the Court of Appeal’s decision.

Although that case did not deal with the truth of facts, Professor Scassa concludes that the decisions " “take the position that in fact-based works of writing, copyright infringement can arise only through the copying of the writing, but not the underlying facts” " : Scassa at p 276; see also Maltz at paras 29, 39 . She argues that the reason for not protecting facts, even where there has been authorial effort to gather them, is that there is a public good in having them in the public domain.

She concludes that when information is " “put forward as ‘having objective reality,’ it should fall into the public domain so it can be tested, challenged, verified, or disproved” " : Scassa at p 277. [ 101 ] I also note that while I reach the foregoing conclusion based on the Canadian approach to the balance inherent in the Copyright Act , the result is consistent with the approach taken in the United States. There, the rule is that an author who holds out a work as nonfiction cannot later claim that aspects of it were actually made up.

This rule, formerly known as " “copyright estoppel,” " was recently reaffirmed and renamed the " “asserted truths” " doctrine: Corbello v Valli , 974 F.3d 965 (9 th Cir 2020) at pp 979–985 citing, among others, Nash and Hoehling . [ 102 ] The plaintiffs effectively argue it was not open to Mr. Hendley to take Mr. Kelley’s assertions regarding the factual nature of his account at face value. They say this for two reasons.

[ 103 ] First, they point to commentary on The Black Donnellys that questioned its accuracy, arguing that it was unreasonable, and even disingenuous, for Mr. Hendley to nonetheless continue to rely on the assertions of truth made in the Introduction to and text of The Black Donnellys . [ 104 ] I find that this does not affect the situation. Other authors certainly questioned the reliability of Mr. Kelley’s account and presented other versions of the family’s history. This included Mr. Fazakas in publications written prior to this litigation.

However, this does not change the fact that the author himself held the work out as nonfiction and as a historically accurate version of events. This was done clearly and with specific reference to the reasons that the reader could rely on the information, including reference to unimpeachable sources and first- and second-hand eyewitness accounts. I do not believe an author who has represented their work as nonfiction can point to other authors’ refutations of the accuracy of their work to justify later protecting their work as fictional.

Their successors in title are in no better position. [ 105 ] The Black Donnellys has been continuously published as nonfiction throughout its 67-year publication history. This includes after others criticized its accuracy. It also includes the period during which copyright has been owned by the plaintiffs and during which Mr. Hendley wrote his book. Indeed, Mr.

Hendley’s affidavit indicates that he downloaded an e-book version of The Black Donnellys in July 2020, and it remains identified as a " “true story” " with the author’s introduction identifying his " “unimpeachable sources.” " Again, a copyright claim is not the place to assess or attempt to resolve criticisms of the quality of historical research or writing. The fact that others have pointed out flaws in the accuracy of Mr.

Kelley’s work does not entitle him, or his successors, to copyright protection over the matters he represented as factual. [ 106 ] Second, the plaintiffs note that claims of truth may themselves be used as a literary device. They point to Jonathan Swift’s Gulliver’s Travels , which was presented as the true experiences of Lemuel Gulliver, and The Blair Witch Project , a horror film that purported to show real footage of supernatural events.

The plaintiffs argue the claims in The Black Donnellys are of this nature and would be understood as such by the reasonable reader. [ 107 ] I do not believe this assists the plaintiffs in this case. There may be cases where a claim of truth is simply implausible. Clearly, in the case of Mr. Gulliver, the assertion of truth is a literary device whose plausibility falls rapidly with the appearance of the Lilliputians. In the case of Blair Witch , the plaintiffs concede that filmgoers did not really believe it was true.

In any case, even accepting that such a literary device may be used in a fictional work, this is very different from claims of factual accuracy in a work plausibly presented as nonfiction. The existence of such fictional rhetorical claims does not result in all works of nonfiction, or all claims of factual accuracy, being inherently suspect. [ 108 ] Nor is The Black Donnellys presented in such a way that it cannot be reasonably believed as a work of history.

As the plaintiffs note, the Donnelly family are certainly presented as being " “larger than life,” " and the story-telling style is certainly dramatic and engaging. But there is nothing in the described events that beggars belief to the extent it must be presumed to be historical fiction. Indeed, other subsequent authors apparently concluded that the same incidents now described by the plaintiffs as fictional were part of the Donnellys’ history, while publishers and libraries continue to catalog the book as nonfiction.

This belies the plaintiffs’ claim that the book on its face shows that it would be unreasonable to rely on Mr. Kelley’s assertion of accuracy. [ 109 ] In assessing the claim of infringement, I will therefore consider The Black Donnellys as it is presented: as a work of nonfiction. Since what constitutes a " “substantial part” " is determined in relation to the originality of the work warranting protection of the Copyright Act , this will affect the substantiality assessment: Cinar at para 26; Maltz at paras 35–36 .

This is not to say that the passages in question, or even the underlying facts, are excluded at the outset: Cinar at para 36; Pyrrha Design at para 127. It is simply to recognize that in making the assessment, the originality in the work, and the scope of copyright protection, are central to the exercise. [ 110 ] For clarity, the foregoing does not apply to Vengeance , which is clearly a work of fiction set against the backdrop of the Donnelly murders. In the Introduction, after referring to The Black Donnellys , Mr.

Kelley describes the work in the following terms: This book, Vengeance of the Black Donnellys , is not a factual account, nor does the writer claim it to be. Instead, it is fiction written around a series of actual happenings; some of which give proof to the old saying that “truth is stranger than fiction.” Along with some self-created characters, it has been necessary for the writer to change certain dates and give fictitious names to a number of people to avoid embarrassment to relatives, near and distant, who still enjoy the warmth of old sol. This I have tried most faithfully to do.

Vengeance of the Black Donnellys is fiction and meant to be fiction. However, the real truth is that this book is based on so much fact – so many of the occurrences mentioned in it actually did happen – that despite all changes and efforts to fictionalize them, it is possible that a few old-timers around Lucan – who are familiar with the strange aftermath of the Donnelly feud, will be able, in the following pages, by putting two and two together, to read between the lines. [ 111 ] While making the fictional nature of Vengeance clear, Mr. Kelley underscores the factual nature of The Black Donnellys .

Vengeance is presented as a ghost tale told in the Lucan graveyard where the Donnellys’ real tombstone is. The tale is told by an old man (whose identity I will not spoil) to an American couple who are visiting the site because they read The Black Donnellys . In a number of places, the fictional ghost story is juxtaposed against elements of the true story of the Donnellys, including incidents described in The Black Donnellys .

(4) Substantial taking: The Black Donnellys [ 112 ] While the plaintiffs’ case relies principally on the fictional nature of the identified events in The Black Donnellys , they also argue that The Outrageous Tale copies the manner in which many of the scenes are depicted, including particular turns of phrase, and the " “cinematic” " story-telling style used by Mr. Kelley. [ 113 ] As noted above, the assessment of substantiality is a holistic one, and not one that should be undertaken " “piecemeal” " based on isolated passages: Cinar at paras 35–36. However, given the manner in which the plaintiffs have presented their case, it is necessary to

review the passages they put forward to consider whether, in cumulative effect, they amount to a substantial copying. (

a) Passages limited to the copying of the allegedly fictional facts [ 114 ] With respect to some of the identified passages in The Black Donnellys , the only concern raised by the plaintiffs is that Mr. Hendley repeated in The Outrageous Tale a fact that appears in The Black Donnellys . While the plaintiffs did not categorize their argumen

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