SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT FILE NOs.: 417/15 and 420/15

DATE: 20151125

RE: Shaw Satellite G.P c.o.b. as Shaw Direct™ v. Pieckenhagen et al.

Bell ExpressVu Limited Partnership v. Pieckenhagen et al.

BEFORE: Swinton J.

COUNSEL: Christopher D. Bredt and Maureen Doherty for the Plaintiffs/Responding Parties

Peter C. Wardle for the Moving Defendants/Moving Parties

HEARD at Toronto: in writing

ENDORSEMENT

[1] The moving defendants in two separate actions seek leave to appeal from orders of Wilton-Siegel J. dated July 23, 2015. In those orders, the motion judge allowed in part appeals from the orders of a master who had dismissed motions for production of further and better affidavits of documents. He refused to order disclosure of agreements between the plaintiffs and their content providers that would disclose costs of purchasing programming. The moving defendants now seek leave to appeal the refusal to order production of these documents related to “flow-through” costs that they argue are relevant to the plaintiffs’ claims for damages for lost profits.

[2] In order to obtain leave to appeal, the moving party must satisfy one of the two tests set out in r. 62.02(4) of the Rules of Civil Procedure. I have considered both tests in coming to my conclusion, and I am satisfied that leave to appeal ought to be denied for the following reasons.

[3] On the first test, I am not satisfied that there is a conflict between the present decisions and a Quebec decision, Vidéotron, s.e.n.c. c. Bell ExpressVu, l.p., 2015 QCCA 422. That decision dealt with the appeal of judgments in two proceedings brought against Bell ExpressVu by content providers. It does not apply principles applicable in the present cases, as it deals with the merits of a case in which a content provider sued Bell ExpressVu for damages arising from a failure to prevent piracy of signals. It does not address the issue before the motion judge – namely, the obligation of the plaintiffs to make flow-through payments to their content providers if they receive damages from the defendants. The uncontradicted evidence from the plaintiffs’ affiants was that the plaintiffs would comply with their agreements with content providers and remit monies to them and/or to SOCAN from any amounts recovered from the defendants.

[4] On the second test, I do not have reason to doubt the correctness of the orders. The uncontradicted evidence before the motion judge was that recovered costs would flow through to the content providers and/or to SOCAN. Therefore, the documents related to flow-through costs are not relevant to the calculation of the plaintiffs’ damages and need not be produced.

[5] In any event, the issues in these proposed appeals are not matters of sufficient importance that leave to appeal ought to be granted. The motion judge decided only whether the documents sought were relevant in this proceeding, a determination that is limited to the facts of these cases. While the scope of production is of importance to the immediate parties, the proposed appeals do not raise an issue of general importance that warrants the attention of an appellate court.

[6] The motions for leave to appeal are dismissed. The costs for the two motions for leave to appeal are fixed at a total amount of $7,500.00, inclusive of disbursements and HST, payable by the moving defendants to the plaintiffs.

Swinton J.

Released: November 25, 2015