COURT FILE NO.: CV-21-661011

DATE: 2022 01 14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MEDIATUBE CORP., Plaintiff

- and -

BELL CANADA, Defendant

BEFORE: Associate Justice Todd Robinson

COUNSEL: J. Holtom, counsel for the defendant (moving party)

R. Chapman, counsel for the plaintiff (responding party)

HEARD: October 13, 2021 (by videoconference)

REASONS FOR DECISION

[1] MediaTube Corp. (“MediaTube”) and Bell Canada (“Bell”) have been embroiled in litigation over alleged infringement of a patent claimed by MediaTube since 2013. A prior action by MediaTube in the Federal Court proceeded to trial, at which MediaTube’s claim was dismissed. That dismissal was upheld at the Federal Court of Appeal, with leave to appeal to the Supreme Court of Canada being refused. MediaTube has now commenced this action claiming various relief against Bell for further alleged patent infringement.

[2] Bell had not yet defended. Bell has instead brought a motion to strike MediaTube’s statement of claim, without leave to amend, on the basis that the issues in the action are res judicata and that the action is an abuse of process. MediaTube is opposing that motion, taking the position that this action deals with separate infringements of its patent than those at issue in the prior Federal Court proceedings. Motion materials have been exchanged, at least in part, although a hearing date remains to be scheduled. It was previously scheduled, but adjourned so this motion could be brought.

[3] On this motion, Bell seeks an order effectively extending confidentiality and sealing orders made in the Federal Court proceedings over various documents and trial transcripts, some of which Bell intends to file in support of its pending motion to strike. Bell wants to ensure that documents subject to the prior confidentiality and sealing orders will remain confidential and sealed if filed in this proceeding. It appears that both Bell and MediaTube have each already included some of those documents in their respective motion records for Bell’s motion to strike.

[4] A number of issues were before me at the hearing. Although different than how the parties framed them, the issues to be decided are as follows:

(a) Should the motion be adjourned for MediaTube to examine a Bell executive and cross-examine one of Bell’s affiants?

(b) Is the issue of confidentiality and sealing of the documents and trial transcripts res judicata?

(c) If not, should I order that the same confidentiality of documents and transcripts in the Federal Court proceedings be effectively extended into this action?

(d) If a confidentiality and sealing order is granted, what is the appropriate scope of the order? In particular:

(i) Are documents that would be subject to confidentiality sufficiently identifiable?

(ii) Does the age or relevance of the information and documents over which Bell seeks confidentiality have any impact on whether they are included in the order?

(iii) Is any of the information over which Bell seeks confidentiality already in the public domain, and thereby no longer confidential?

[5] After hearing argument on MediaTube’s opposed adjournment request, I denied the adjournment for reasons to follow. I provide those reasons below.

[6] On the substantive motion, I find that issue estoppel does not apply to whether documents and transcripts in the Federal Court proceeding are confidential and should be sealed. However, I am nevertheless satisfied that a confidentiality and sealing order should issue, and that MediaTube’s arguments do not support different treatment in this action of any of the documents and transcripts already subject to confidentiality and sealing orders in the Federal Court proceedings. I am thereby granting Bell’s motion and ordering that any documents filed by either party that were and remain subject to confidentiality and sealing in the Federal Court proceedings shall also be subject to confidentiality and sealing in this proceeding. However, redacted versions of all motion materials and other records containing such documents must also be filed and available in the public court file.

Analysis

(a) Should the motion be adjourned for examinations to proceed?

[7] MediaTube’s requested adjournment was to conduct examinations of two Bell employees: Shannon Peacocke, Bell’s Director of Video Technology (the deponent of one of Bell’s supporting affidavits on this motion), and Shawn Omstead, a Vice President with Bell. Bell had agreed to produce both individuals for examination, but availability restrictions led to a dispute about the order of examinations, exacerbated by a subsequent miscommunication about examination dates.

[8] The parties’ dispute before me was essentially over whether MediaTube had exercised reasonable diligence in pursuing the two examinations. I denied the adjournment request for two primary reasons. First, I was satisfied that, in the particular circumstances of this case, MediaTube had not exercised its examination rights with reasonable diligence. Second, MediaTube’s proposed examinations were unlikely to have any material relevance in determining this motion. The examinations were thereby neither proportionate nor necessary to disposition of the motion, such that adjournment to conduct them was not warranted.

[9] MediaTube’s entitlement to cross-examine Shannon Peacocke, who affirmed a two-page affidavit in support of Bell’s motion, is outlined in Rule 39.02(1) of the Rules of Civil Procedure, RRO 1990, Reg 194. That rule provides MediaTube with discretion to cross-examine the deponent of any affidavit served by Bell once MediaTube has served every affidavit on which it intends to rely and has completed all examinations under Rule 39.03. Since Shawn Omstead was not one of Bell’s deponents for this motion, MediaTube’s right to examine him is found in Rule 39.03(1). That rule permits examination of a witness before the hearing of a pending motion for the purpose of having a transcript of that person’s evidence for use at the hearing.

[10] Operation of Rule 39.02(2) was one source of the parties’ dispute. It provides that, once a party has cross-examined the deponent of an adverse party, leave of the court or consent is required to conduct a subsequent examination under Rule 39.03. MediaTube points to operation of Rule 39.02(2) as a reason for wanting to examine Mr. Omstead first. Although Bell submitted that MediaTube had no right to cross-examine in the order it wished, MediaTube’s position was consistent with the language of Rule 39.02.

[11] Ultimately, though, a party’s “right” to examine a deponent or witness on a pending motion is not absolute. Both Rule 39.02(3) and Rule 39.03(3) impose a common requirement on examinations: a party’s right to examine must be exercised with reasonable diligence, failing which the court may refuse an adjournment for the purpose of an examination. Also relevant in assessing MediaTube’s adjournment request is Rule 1.04. Rule 1.04(1) provides that the rules are to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Rule 1.04(1.1) provides that court orders and directions must be proportionate to the importance and complexity of the issues.

[12] MediaTube insisted on examining Shawn Omstead first, which Bell ultimately agreed to accommodate. The emails filed demonstrate unnecessary aggression between counsel on both sides. However, I am satisfied that the ultimate scheduling dispute arose from an honest miscommunication about Mr. Omstead’s availability. After agreeing that Mr. Omstead could be examined first, Bell’s counsel erroneously confirmed a different date for the examination (September 29) than the availability previously provided (September 28). I accept that it was a typographical mistake that was not caught until five days later when MediaTube’s counsel emailed to confirm the examinations of both Mr. Omstead and Ms. Peacock. Bell’s counsel promptly raised the error within ten minutes of receiving the email.

[13] Shawn Omstead was not available on September 29. His actual availability on September 28 could not be accommodated by MediaTube’s counsel. Since MediaTube maintained its position on the order of examinations, the dispute came to a head and neither Mr. Omstead’s examination nor the scheduled cross-examination of Shannon Peacocke proceeded.

[14] MediaTube has put forward no explanation or reason for why it was necessary to complete Mr. Omstead’s examination first (other than citing operation of Rule 39.02(2)). Nothing before me supports that any evidence from Mr. Omstead would impact or change a cross-examination of Ms. Peacocke. This is significant for two reasons.

[15] First, Bell’s counsel had previously confirmed that Bell was agreeable to Shawn Omstead being examined after Shannon Peacocke was cross-examined. Since Bell was consenting to Mr. Omstead’s examination under Rule 39.03 following cross-examination of Ms. Peacocke, any technical concern with operation of Rule 39.02(2) was vitiated.

[16] Second, Bell’s counsel expressly agreed not to discuss any of Ms. Peacocke’s evidence with Mr. Omstead. Nothing before me suggests that MediaTube had any specific concerns, but if there were any concerns about Mr. Omstead’s answers being influenced by knowledge of Ms. Peacocke’s answers on similar questions, that agreement by Bell’s counsel should have been sufficient to assuage them.

[17] Sometimes, proportionality in litigation requires that parties prioritize the practical over the technical. Mistakes happen. There was a genuine miscommunication about Mr. Omstead’s availability. When that miscommunication came to light, MediaTube could have proceeded with cross-examination of Ms. Peacocke as scheduled and requested that Mr. Omstead be examined on another date. In the circumstances of Bell’s agreements, and absent any submissions or evidence supporting a need for Mr. Omstead to be examined first, there would have been no prejudice to MediaTube. Nevertheless, MediaTube elected to insist on its “right” to dictate the order of examination on a technical basis, without any substantive or practical reason for doing so (or at least none that it was prepared to disclose to me). Doing so was at MediaTube’s risk that it may lose the right to examine at all.

[18] In the particular circumstances of the miscommunication and given Bell’s prior agreements, I find that MediaTube was not exercising its rights with reasonable diligence when it chose to insist on its preferred order of examinations without any disclosed reason for needing it.

[19] Even if I am wrong in that, principles of proportionality support that the relevance of examination evidence to deciding the motion should be considered in considering MediaTube’s adjournment request. I was (and remain) satisfied that evidence from the proposed examination of Shawn Omstead and cross-examination of Shannon Peacocke, while potentially relevant on Bell’s motion to strike, would have no material relevance to the confidentiality and sealing order sought. Adjourning the motion for examinations would only have served to add unnecessary expense that, in my view, was not proportionate to the issues on this motion.

[20] During oral submissions, I specifically asked why the examinations were necessary before the motion could be argued. In response, MediaTube’s counsel was guarded. He indicated that he preferred not to disclose anticipated questions and made general submissions about principles of justice and providing MediaTube with an opportunity to defend itself fully. The only substantive response provided was that Ms. Peacocke and Mr. Omstead were both involved in Bell’s operation in the patent area at issue and that their examinations would entail exploring Bell’s use of MediaTube’s patent since the first trial. I note also that MediaTube’s supplementary factum states that cross-examination of Ms. Peacocke would deal with continued relevance of documents over which Bell asserts confidentiality.

[21] Whether or not Bell has infringed MediaTube’s patent since the first trial is an issue in the litigation, not on this motion. In my view, evidence that may or may not support a finding in favour of MediaTube on that issue is immaterial to whether documents previously subject to a confidentiality and sealing order in the Federal Court should be similarly treated in this litigation. Also, demonstrating relevance is not required for a confidentiality and sealing order to be made over a document. A confidential and commercially sensitive document being filed with the court may well be irrelevant to issues in the action, but still bear on disposition of a motion. Such a document is no less entitled to protection than a similar, relevant document. It follows that determining whether particular documents are or may be relevant to MediaTube’s claim or Bell’s defences in this action is beyond the scope of this motion. Those arguments are more appropriately raised and addressed during Bell’s motion to strike, if not at a later date.

[22] For the above reasons, I denied MediaTube‘s adjournment request.

(b) Is confidentiality and sealing of Bell’s documents res judicata?

[23] Bell submits that every issue on this motion has already been decided in the Federal Court twice: once at trial and again in a post-trial motion brought by MediaTube to declare that confidential exhibits and transcripts should no longer be treated as confidential. Bell argues that the issues are thereby res judicata by issue estoppel. I disagree with Bell that issue estoppel arises from the prior determinations on confidentiality and sealing of documents and trial transcripts in the Federal Court proceedings between the parties.

[24] As set out in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at paras. 25 and 33, assessing issue estoppel is a two-step analysis. At the first step, the court must determine if the three preconditions to issue estoppel have been made out, namely (i) the same question has been decided in a prior proceeding; (ii) the decision that is said to create the estoppel was final; and (iii) the parties to the prior decision (or their privies) are the same parties to the proceedings in which estoppel is raised. If those preconditions are established, a second step requires the court to determine whether, as a matter of discretion, issue estoppel ought to be applied. In performing the analysis, the court must balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case.

[25] No case law has been provided in which a confidentiality order in a prior proceeding was held to support a finding of res judicata on disputed confidentiality in a subsequent one. In my view, Bell fails in its argument for issue estoppel at the first step. In deciding MediaTube’s motion to declare that confidential exhibits and transcripts from the Federal Court trial were no longer be treated as such, Locke J. held that “the issue of confidentiality was duly raised, considered and decided at trial”: MediaTube Corp. v. Bell Canada, 2018 FC 355 at para. 20. I do not disagree with that holding. Locke J. clearly decided the issue of confidentiality, but the confidential treatment of Bell’s evidence and documents was not a question that the Federal Court had to decide to dispose of MediaTube’s claim.

[26] Issue estoppel prevents re-litigation by an unsuccessful party of a disputed material fact or issue that has already been finally decided in another proceeding involving the same parties (or their privies). The target is material facts or issues relevant to the cause of action that was before the court in the prior proceeding. Locke J.’s (unopposed) decision at trial that certain exhibits and transcripts be treated as confidential was not necessary, and certainly not material, to determining the infringement alleged by MediaTube. Rather, confidentiality was a procedural issue implicated by and raised in the proceeding. In my view, issue estoppel thereby does not arise in respect of that decision.

[27] I do note that, in his decision on MediaTube’s post-trial motion, Locke J. refers briefly to the lack of a formal confidentiality order not impeding application of the principles of res judicata, However, Locke J. did not engage in an analysis of res judicata or its application. It was not necessary given his determination that even if he had discretion to revisit the confidentiality issue, he would not have changed his view: MediaTube Corp. v. Bell Canada, 2018 FC 355 at para. 21. It is unclear if, on a fulsome analysis, Locke J. would have accepted Bell’s arguments that the issue of confidentiality was res judicata.

(c) Is a confidentiality and sealing order appropriate?

[28] Although I have found that the confidentiality issue is not res judicata as between the parties, I am nevertheless satisfied that a confidentiality and sealing order should issue.

[29] As set out in ss. 135 and 137 of the Courts of Justice Act, RSO 1990, c C.43, unless otherwise ordered, all civil court proceedings are open to the public and all documents filed in those proceedings are accessible to the public. I have authority under s. 137(2) of the Courts of Justice Act to order that documents filed in this proceeding be treated as confidential, sealed, and not form part of the public record. However, that discretion is only properly exercised in certain circumstances.

[30] The requisite two-step analysis and relevant considerations for obtaining a confidentiality order was previously set out in Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41 at paras. 53-57. That analysis has now been recast by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25, focusing the test for granting discretionary limits on presumptive court openness around the three core prerequisites in the Sierra Club analysis.

[31] A person asking a court to exercise its discretion in a way that limits the open court principle must establish each of the following three prerequisites: (i) court openness poses a serious risk to an important public interest; (ii) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (iii) as a matter of proportionality, the benefits of the order outweigh its negative effects: Sherman Estate, supra at para. 38.

[32] As already discussed, MediaTube sought to have trial transcripts and exhibits that were treated as confidential in the Federal Court proceedings declared part of the public domain and made publicly available. Locke J. considered the test for a confidentiality order set out in Sierra Club and, in MediaTube Corp. v. Bell Canada, 2018 FC 355 at para. 22, held as follows:

[22] Here, I am satisfied that, where a party that finds itself involved in litigation (especially as a defendant in an action that is without merit) and is compelled by the rules of discovery to divulge sensitive and confidential information, there is a strong public interest in that party being able to maintain the confidentiality of that information. Otherwise, no confidential information is safe. I am satisfied that the salutary effects of maintaining the confidentiality of the information in question in the present motion, outweigh its deleterious effects on the right to free expression, including the public interest in open and accessible court proceedings.

[33] I agree with Locke J.’s view.

[34] On the first prerequisite, there is an important public interest in ensuring that parties who are brought into litigation are able to maintain confidentiality over commercially sensitive and confidential information that they are compelled to divulge in order to defend themselves or comply with discovery obligations. The Rules of Civil Procedure require that parties disclose all relevant documents that are or were in their possession, control or power (Rule 30.02) and answer all proper and relevant questions during an examination for discovery (Rule 31.06). The result is that a defendant may be compelled to divulge commercially sensitive and confidential information or produce confidential documents in order to comply with discovery obligations, even though a plaintiff would otherwise have no access to such information and documents. Proprietary information and trade secrets are hallmarks of business competition in the open commercial market. In my view, court openness is in direct conflict to the public interest in maintaining confidentiality in such information, and poses a serious risk to that public interest.

[35] On the second prerequisite, no alternative measures have been proposed to protect commercially sensitive or confidential information without a confidentiality and sealing order. I am satisfied that a confidentiality and sealing order is an appropriate means to protect such information that a party is only obliged to disclose by reason of their obligations in civil litigation or in order to defend themselves in such litigation.

[36] On the third prerequisite, I am satisfied that the benefits of ensuring confidentiality is maintained over the information and documents treated as confidential in the Federal Court proceedings, which evidently will be relied upon in at least the pending motion to strike, outweighs the negative effects on the principle of court openness. I do not accept MediaTube’s arguments that Bell has not demonstrated any prejudice if a confidentiality order is not granted, or that MediaTube will be prejudiced if it is granted.

[37] MediaTube submits that Bell has failed to establish it would suffer any prejudice from public disclosure of the information and documents. I am not satisfied that Bell is required to demonstrate specific prejudice where the information and documents have been demonstrated to be confidential or commercially sensitive. The two Federal Court cases cited by MediaTube, one of which was decided on lack of demonstrated harm or prejudice, both deal with confidentiality orders under the Federal Court Rules, SOR/98-106. Neither decision is binding on me.

[38] More significantly, though, while I have found that confidentiality is not res judicata, Locke J. has already determined that the information and documents were confidential and commercially sensitive to Bell and should be protected. That determination is, in my view, entitled to significant deference. Locke J. was in a far better position than I could ever be on a paper-based motion to assess whether the information and documents should be treated as confidential and sealed. He presided over the prior trial between the parties and heard their evidence on the information and documents in question. In the course of trial, he considered those documents. Having done so, he granted and then subsequently affirmed that the information and documents were entitled to protection. MediaTube has not convinced me that I should take a different view or otherwise treat the same information and documents differently.

[39] MediaTube also takes the position that it will be prejudiced by a confidentiality order in this proceeding. Various submissions were made on its concerns about being “hamstrung” if a confidentiality order is issued, specifically using the example of experts retained to opine on infringement and damages issues being unfairly restricted. MediaTube wants to be able to use the documents “fully and freely” in advancing its claim.

[40] MediaTube’s argument is without merit. Ignoring that MediaTube’s position on being prejudiced by a confidentiality order seems to conflict with its own position that the documents are irrelevant in this proceeding (discussed below), I fail to see how MediaTube or any litigation expert it may retain will be “hamstrung” by a confidentiality and sealing order. The purpose of such orders is to restrict public access to information or documents, not access by the parties. Bell has not sought an order that prohibits MediaTube from using or relying on the documents in proving its claim.

[41] No authority was placed before me supporting that a party’s litigation expert is somehow disentitled from accessing and considering documents and evidence that may be tendered at trial. The proposition is frankly illogical. The purpose of an expert is to assist the trier of fact. If an expert is prohibited from accessing information or documents that impact the expert’s opinion and bear on deciding the case, what usefulness would an expert’s opinion be? It follows that experts must have access to the same evidence that would be available to the trier of fact in deciding the issues for which their opinion is tendered, albeit that their access to confidential documents may necessarily be subject to confidentiality terms.

[42] For the above reasons, I am satisfied that a confidentiality and sealing order should issue subject to assessing an appropriate scope for the order.

What is the appropriate scope of a confidentiality and sealing order?

[43] Bell seeks a general confidentiality order entitling the parties to file as confidential in this action, under seal, those materials and information previously filed confidentially under seal in the Federal Court, Federal Court of Appeal, and Supreme Court of Canada. The requested order also provides that a public version of the document be filed with confidential information redacted or removed.

[44] MediaTube advances three primary arguments in opposing the breadth of the confidentiality order sought by Bell. First, MediaTube argues that the nature of a confidentiality order requires specificity over its subject matter, but that nowhere in Bell’s materials is there a listing of the documents over which confidentiality is asserted nor have they been provided for my review and consideration. Second, MediaTube argues that the material subject to confidentiality in the Federal Court proceedings is stale-dated and irrelevant to MediaTube’s current claim. Third, MediaTube argues that the “confidential” information is already in the public domain, so no order should issue.

Are the documents sufficiently identifiable?

[45] I agree with MediaTube that, generally, a confidentiality order must have specificity of subject matter. However, this is not a case where the target documents are vague or abstract, as MediaTube suggests. Bell seeks to effectively extend the confidentiality of documents already treated as confidential in the Federal Court proceedings to the extent that any of them are relied upon in this proceeding. In the Federal Court proceedings, several confidentiality orders were made, as follows:

(a) a formal protective order of Prothonotary Milczyski dated October 2, 2014, issued on consent, setting out the process by which documents may be designated as confidential by the parties, who had authorized access to such documents, how such documents may be filed under court seal, and how a confidentiality designation may be challenged;

(b) Locke J.’s direction in the trial before him that certain documents and testimony be treated as confidential, as requested by Bell and unopposed by MediaTube or its co-plaintiff, which was given effect by specific exhibits and trial transcripts identified by Bell being excluded from the public record (as explained by Locke J. in MediaTube Corp. v. Bell Canada, 2018 FC 355 at paras. 2 and 4);

(c) a fresh formal protective order of Locke J. dated February 20, 2018, made following dismissal of MediaTube’s prior action, which restated the prior order and added MediaTube’s new counsel of record as having authority to access documents;

(d) Locke J.’s already-discussed decision on March 29, 2018, in which MediaTube’s motion to declare that trial transcripts and exhibits no longer be treated as confidential was dismissed, and which affirmed that the evidence should continue to be treated as confidential: MediaTube Corp. v. Bell Canada, 2018 FC 355; and

(e) directions in the Federal Court of Appeal that the prior protective order would continue to apply in MediaTube’s appeal from Locke J.’s trial judgment and its motion to admit fresh evidence.

[46] Both Bell and MediaTube were parties to the Federal Court proceedings. They ought reasonably to know (or be able to prove to the other party) which documents were designated as confidential under the protective orders or held to be confidential by the court, and remain subject to those orders. I thereby need not delve into MediaTube’s argument that the documents have not been properly identified, which in any event is contradicted by the various lists included in Bell’s materials. The documents subject to confidentiality are readily identifiable as between the parties.

Does age or relevance of the information and documents matter?

[47] I have already addressed my view that relevance of documents to this action is not a prerequisite to granting a confidentiality and sealing order over them.

[48] I am also unable to find on the evidence before me that the documents are “stale-dated”. MediaTube has tendered no evidence supporting that conclusion. I am not prepared to infer it simply because the documents were produced in a proceeding commenced in 2013, which was tried in 2017. I do not agree that Bell must specifically demonstrate that information previously accepted by a court to be confidential is still being used today in order for it to be treated as confidential in a subsequent proceeding.

Is any of the confidential information already in the public domain?

[49] All of the documents and information at issue appear to relate to the technical operation of its FibeTV service. Bell’s position is that its FibeTV network information has remained confidential and is not publicly available. In support of that position, Bell has tendered Shannon Peacocke’s affidavit, which states unequivocally that she is familiar with the network information that the court held was confidential, that network security was and remains a concern for Bell, and that all the information that was held to be confidential “remains confidential and has not been publicly disclosed by Bell.”

[50] MediaTube’s position is that the workings of Bell’s FibeTV service are already in the public domain. It has sought to challenge Ms. Peacocke’s evidence by advancing four arguments, as follows:

(a) Operation of Bell’s FibeTV network was the subject matter of Shawn Omstead’s trial testimony in Roni Guides Inc. v. Bell Canada, Federal Court Case T-113-18, on which a significant portion of MediaTube’s current claim is purportedly based and which is argued to conflict with Bell’s materials submissions in the prior Federal Court case between Bell and MediaTube;

(b) A document entitled, “Architecture of Microsoft Mediaroom”, which is purportedly fundamental to MediaTube’s claim, was made available to the public in January 2019, with at least 370 public views;

(c) Since MediaTube’s patent has now expired, anyone can obtain a copy of the documents arising from trial; and

(d) The public had access to the prior Federal Court trial proceedings before Locke J. and members of the public were in attendance when evidence on “confidential” information and documents was given.

[51] I reject all of these arguments.

[52] On the first argument, MediaTube has tendered no substantiating evidence of any inconsistency between Bell’s position in the prior proceeding and testimony that Shawn Omstead is said to have given in Roni Guides Inc. v. Bell Canada. Only bald statements to that effect have been made by MediaTube’s primary affiant, Douglas Lloyd, the President and CEO of MediaTube. Mr. Lloyd’s affidavit is rife with improper argument and opinion. Absent substantiating evidence, I am not prepared to find on the record before me that any of the information contained in the documents previously held to be confidential in the Federal Court proceedings is now in the public domain by way of Mr. Omstead’s testimony.

[53] Mr. Lloyd submits in his affidavit that Mr. Omstead’s testimony and the fact that it contradicts Bell’s material submissions in the prior case should not be withheld from the public. I am not being asked to do anything more than extend the prior confidentiality order. Admissibility of Mr. Omstead’s testimony from the Roni Guides Inc. v. Bell Canada case and whether any confidentiality over Bell’s submissions at trial in the prior Federal Court proceedings should be maintained are, in my view, matters to be argued at trial, or possibly on the motion to strike. In my view, they have no bearing on whether confidential treatment of documents in the prior litigation between the parties should be maintained in this litigation.

[54] On the second argument, I am unclear on the relevance of Mr. Lloyd’s assertions about accessibility of the “Architecture of Microsoft Mediaroom” document. It is not in the materials, is not asserted to be one of the documents subject to confidentiality, and does not appear to be in the list of confidential documents included in Bell’s motion materials. No correlation has been established between that document and any information contained in the transcripts or documents held to be confidential in the Federal Court proceedings.

[55] On the third argument, MediaTube advanced no case law or legal basis for its position that all trial documents are now accessible because its patent has expired. I was directed to nothing in the protective order or confidentiality orders supporting that confidentiality over the information and documents expires concurrently with expiry of MediaTube’s patent.

[56] On the fourth argument, to support its position that the public was in attendance at the prior Federal Court trial, MediaTube relies on Douglas Lloyd’s affidavit and the affidavit of James Peterson, a lawyer with Fasken in Toronto. I put little weight on their evidence.

[57] Mr. Lloyd’s affidavit, in substance, goes no further than to state that the hearings were open to the public. He states that he “can produce affidavits from many individuals in attendance”, but MediaTube has not done so. The only other affidavit is from James Peterson. Mr. Peterson has sworn that he attended “throughout much of the Trial as a member of the public”, observed many members of the public coming and going during trial, and attended during testimony about Bell’s “How It Works” document (one of the confidential documents). However, Bell directed me to evidence given at the Federal Court trial by Douglas Lloyd confirming that James Peterson sat on MediaTube’s board of directors at the time of trial. MediaTube has not disputed that fact, although Mr. Peterson’s affidavit is silent on that material point. I am thereby satisfied that Mr. Peterson was not a “member of the public”, as he states. The omission of his direct involvement and interest in MediaTube is, in my view, significant.

[58] The same argument advanced by MediaTube before me was previously argued before Locke J. when MediaTube sought the declaration that confidential documents were in the public domain. Based on Locke J.’s decision in MediaTube Corp. v. Bell Canada, 2018 FC 355, it appears that MediaTube’s motion was brought without any supporting evidence akin to the affidavit of James Peterson. Locke J. expressly noted in his decision that he did not recall the presence of members of the public. He stated and held, at para. 23, as follows (emphasis added):

[23] It is common ground between the parties that there is no evidence as to whether members of the public (those not subject to the Protective Order) ever had access to the confidential information in question, either by being present in the courtroom during the trial or otherwise. I do not recall the presence of such members of the public while confidential information was discussed at trial, and I find it unlikely that such a situation would have gone unnoticed and unchallenged by Bell’s counsel. Despite the absence of direct evidence on the point, I am of the view that it is more likely than not that no member of the public has ever had access to the documents and testimony that MediaTube seeks to have unsealed.

[59] Douglas Lloyd’s affidavit characterizes Locke J.’s recollection as being “faulty”. However, MediaTube has not produced an affidavit from anyone other than James Peterson, whose interest and involvement in MediaTube was not disclosed in his affidavit. I find no basis to view Locke J.’s recollection as anything other than reliable.

[60] For the above reasons, I do not accept MediaTube’s self-serving evidence that the public had or has access to Bell’s “confidential” information on the FibeTV network. Nothing before me supports a finding that Shawn Omstead gave any testimony in the Roni Guides Inc. v. Bell Canada case on the same information held to be confidential in the Federal Court proceedings or a finding that there was significant (if any) public attendance at the prior trial.

Disposition

[61] For the foregoing reasons, Bell’s motion is granted. I accordingly order as follows:

(a) Documents filed by either party that were and remain subject to confidentiality and sealing in Federal Court Case T-705-13 shall also be subject to confidentiality and sealing in this proceeding.

(b) The following process shall apply to service and filing of motion materials or other records containing documents referenced in subparagraph (a) above:

(i) Both a redacted and unredacted version of all motion materials or other records shall be prepared and served on the other party.

(ii) The unredacted version shall be filed with the court in hard copy by enclosing it in a sealed envelope, appending this order to the envelope, and filing at the court office for inclusion in the court file.

(iii) The redacted version shall also be filed for inclusion in the public court file, but not until it has been reviewed by the other party and confirmation is provided that the other party does not require additional redactions in any of the unredacted portions. Unless otherwise agreed by the parties, the other party shall be deemed not to require any further redactions if a position has not been provided within one (1) business day following valid and proper service of the record.

(iv) If the other party requests additional redactions, then a revised version of the redacted record shall be prepared by the party serving the record that includes the additional redactions, which shall thereafter be re-served and then filed.

(v) Any disputes over the propriety of redactions may be addressed by motion or, subject to the discretion of the presiding judge or associate judge, at the relevant court hearing for which the record has been filed.

(vi) Parties shall not upload to CaseLines any unredacted materials or records containing documents referenced in subparagraph (a) above. Electronic copies of unredacted records shall be submitted for review by the presiding judge or associate judge as directed by civil intake staff, the Trial Coordinator’s Office, or as the court may otherwise direct.

(c) This order is effective without further formality.

[62] Any issues or concerns arising from the above order and directions may be addressed directly with me by a case conference arranged through my Assistant Trial Coordinator. However, I am not seized of further disputes within the jurisdiction of an associate judge over the confidentiality or sealing of information or documents in this proceeding.

Costs

[63] Costs outlines have been exchanged and filed. I encourage the parties to settle costs. If they cannot, then written costs submissions shall be exchanged. Bell shall serve any costs submissions by January 28, 2022. MediaTube shall serve its responding costs submissions by February 11, 2022. There shall be no reply submissions absent leave of the court. Costs submissions shall not exceed four (4) pages, excluding any offers to settle and case law, and shall be filed by email directly with my Assistant Trial Coordinator, with proof of service.

[64] Unless costs submissions are exchanged and filed in accordance with the above, the parties shall be deemed to have agreed on costs.

ASSOCIATE JUSTICE TODD ROBINSON

DATE: January 14, 2022