Corus Entertainment Inc. v. Rogers Communications Inc., 2024 ONSC 6126

Court File No.: CV-24-726486-00CL Date: 2024-11-05 Ontario Superior Court of Justice Commercial List

Between: CORUS ENTERTAINMENT INC. and CORUS MEDIA HOLDINGS INC. Applicants And: ROGERS COMMUNICATIONS INC. and ROGERS COMMUNICATIONS CANADA INC. Respondents

Counsel: Kevin O’Brien & Andrew Rintoul & Sierra Farr, for the Applicants Crawford Smith & Zain Naqi & Xin Lu Crystal Li, for the Respondents

Heard: October 23, 2024

Before: Justice Penny

Reasons for Decision

Overview

[1] Corus brings this application for a declaration that Rogers does not have the right to remove one of Corus’s television channels (the Channel) from existing Rogers’ television packages offered to Rogers’ subscribers. The basis for the requested declaration is said to be:

(a) the terms and conditions of the affiliation agreements between Corus and Rogers; and

(b) a regulatory “standstill” imposed by s. 15.01(1) of the Broadcasting Distribution Regulations, which are enforced by the Canadian Radio-television and Telecommunications Commission.

[2] Further, in Part IV of its factum and in its reply factum, Corus seeks, in the alternative, an interlocutory injunction prohibiting Rogers from removing the Channel from the television packages offered by Rogers to its subscribers until the CRTC has determined whether the standstill in s. 15.01(1) prohibits the removal of the Channel.

[3] Finally, Corus seeks a sealing order in respect of “confidential and commercially sensitive information” contained in various affidavits, transcripts, answers to undertakings and factums filed on this application. This order would extend to these reasons as well.

[4] Time is of the essence in this matter. For that reason, I have kept these reasons as short and as focused as reasonably possible in the circumstances.

[5] For reasons that I will explain below, the application is dismissed. I have concluded:

(a) the relevant affiliation agreement does not prohibit Rogers from unilaterally removing the Channel from its television packages [1];

(b) the interpretation and enforcement, including declaratory relief, of the Broadcasting Distribution Regulations falls within the exclusive jurisdiction of the CRTC and the Federal Court of Appeal (under ss. 18 and 28 of the Federal Courts Act);

(c) because s. 15.01(1) of the Regulations falls within the exclusive jurisdiction of the CRTC, an injunction to compel compliance with s. 15.01(1) is not available from the Superior Court of Justice except perhaps in the most urgent and unusual of circumstances, which do not obtain here; and

(d) the information sought to be sealed is not the confidential information of Corus but, rather, that of Rogers. In any event, the test set down by the Supreme Court of Canada in Sierra Club of Canada v. Canada (Minister of Finance) and Sherman Estate v. Donovan has not been met.

Background

[6] Corus is a leading media and content company that develops and delivers quality brands and content across platforms for audiences around the world. Established in 1999, Corus is Canada’s largest independent programming undertaking, and its portfolio of multimedia offerings encompasses a wide range of specialty television services, conventional television stations, radio stations, digital and streaming platforms, technology and media services and a global content business.

[7] Rogers Communications Inc. is one of Canada’s leading wireless, cable and media companies. Rogers operates Canada’s largest broadcasting distribution market, with approximately three million subscribers, representing nearly half of the English language broadcast distribution market in Canada.

[8] Within the television distribution business, production companies create television content and then license this content to programming undertakings. Corus is both a production company and a programming undertaking. Programming undertakings typically do not have direct relationships with Canadian television subscribers. Instead, they package their content into services (i.e., channels) and license those services to Broadcast Distribution Undertakings (“BDUs”) via affiliation agreements. Canadian viewers then subscribe for television packages containing different services directly from BDUs. Rogers is a BDU.

[9] Parliament has delegated to the CRTC the authority as a specialized body to regulate and monitor Canadian television production companies, programming undertakings and BDUs, through the Broadcasting Act. The CRTC is responsible for:

(a) commercial relationships between Canadian programming undertakings (like Corus) and BDUs (like Rogers);

(b) the resolution of disputes between programming undertakings and BDUs concerning the carriage of programming originated by the programming undertakings;

(c) other responsibilities as set out in a variety of instruments, including the Broadcasting Distribution Regulations and various policy statements.

Analysis

The Affiliation Agreements

Contract Interpretation Principles

[10] It is well established that the overriding concern when interpreting a commercial contract is to determine “the intent of the parties and the scope of their understanding” derived from the language, purpose and commercial context of the agreement. This requires the decision-maker to interpret the contract as a whole, giving the words the parties have chosen their ordinary and grammatical meaning, consistent with the surrounding circumstances reasonably known to the parties at the time of formation of the contract. Surrounding circumstances cannot, however, overwhelm the plain meaning of the words of the contract. The subjective intentions of the parties are not admissible and not relevant. The court should avoid an interpretation that would render one or more of the contract’s terms ineffective. And, the court should interpret the contract in a fashion that accords with sound commercial principles and good business sense, and that avoids a commercial absurdity: Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53, [2014] 2 SCR 633; Salah v. Timothy’s Coffees of the World Inc., 2010 ONCA 673; Ventas, Inc v Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205.

Application to the Present Circumstances

[11] Corus and Rogers are parties to two agreements which govern the distribution of Corus services by Rogers to its subscribers. The first is the eastern Canada agreement between Corus and Rogers. The second is the western Canada agreement, originally between Corus and Shaw. Shaw was acquired by Rogers in 2023, such that the terms and conditions of the western Canada agreement are now binding on Rogers. As will be discussed below, only the eastern Canada agreement is directly in issue regarding the contract interpretation dispute between the parties over whether Rogers can unilaterally remove the Channel from its television packages. Both agreements have been amended from time to time. Rogers has declared that both agreements will come to an end at the end of this year. What happens during the transitional period while Corus and Rogers renegotiate these agreements is governed by CRTC rules and regulations. The question of what terms and conditions obtain when the agreements expire is specifically before the CRTC in applications brought by Corus and Rogers to address this very question. The Corus application to determine the scope of a regulatory “standstill” has been argued but the CRTC has not yet rendered a decision.

[12] On August 21, 2024, Rogers advised Corus that it would be dropping a popular Corus service (the “Channel”) from certain of its television packages. Under the eastern Canada agreement, this would result in the Channel being removed from the packages of over half a million Rogers customers.

[13] The impetus for this notice by Rogers was that Corus lost the right to distribute “Bravo” content which Corus had historically aired on the Channel. Corus lost this right because it was outbid as exclusive licensee of this content in Canada. It was outbid, as it happens, by a different Rogers entity (Rogers entities act both as a competitor to Corus for the content of services (Rogers Media), and a broadcast distribution undertaking to whom Corus must license its content so it can get to television subscribers (Rogers Communications)).

[14] Section 3(a) of the eastern Canada agreement provides that Rogers may, at its sole option, freely create retail product packages and/or bundles that include Corus services. Rogers also agreed in section 3(a) that it will continue to distribute existing services in the packages existing as of the date of execution of the agreement (in September 2018). Section 3(a) states:

Rogers may, at its sole option, freely create retail product packages and/or bundles that include the Services. Notwithstanding the foregoing, Rogers confirms that it will continue to distribute the existing Services in the packages existing as of the date of execution of this Agreement.

[15] Corus argues that both provisos in section 3(a) prohibit Rogers from removing the Channel from its television packages. First, because the power to “freely create” television packages does not include the right to “remove” a channel from a package. Second, because, although the Channel was not offered or included in a television package when the eastern Canada agreement first existed in 2018, ongoing amendments, including the most recent amendments on September 8, 2023, extend the “existing as of the date of the execution of this Agreement” protection to all offerings as of the date the amendment was effective. In this case, the Channel was offered through a Rogers television package before September 8, 2023.

[16] Corus argues that the word “create” does not mean “remove”. Courts, it says, have given the word “create” the meaning in the Shorter Oxford English Dictionary, being “to make, form, constitute, or bring into legal existence”. Corus argues that Rogers, in removing the Channel from its television packages, is not “making” or “constituting” anything new, it is simply deleting something from an existing, otherwise unchanged, television package offered by Rogers to its subscribers.

[17] Corus also relies on the historical dealings between the parties. Rogers, it says, has not identified a single past instance in which Rogers has, during the term of either agreement, removed a Corus service from a customer’s existing package without either Corus’s express consent or without the customers themselves initiating that change.

[18] Corus also relies on section 3(c) of the agreement, arguing that section 3(c) requires Rogers to consult with Corus in good faith prior to the commercial launch of any new programming packages. Section 3(c) provides:

Prior to the commercial launch of any new programming packages, Rogers will make good faith efforts to provide [Corus] with a consultation right regarding such launch and the opportunity for [Corus] to provide feedback regarding such packages and Rogers will provide reasonable consideration regarding such feedback. In all instances where a Service is to be repackaged, migrated or duplicated, Rogers shall be subject to its condition(s) of licence and any and all CRTC decisions, orders or policies pertaining to packaging, migration or duplication.

[19] Corus also relies on section 6 of the eastern Canada agreement. Section 6(a) provides:

[Corus] and Rogers agree that the branding and quality of the Service is an integral part of this Agreement and, accordingly [Corus] represents, warrants and covenants that, throughout the Term the Services will be presented on a 24 hour per day, seven days a week schedule, shall contain programming as described in Schedule I with respect to the genre and key output content (where applicable) that is reasonably similar in terms of quality at the time of execution.

[20] Section 6(b) then provides that if Rogers determines (acting reasonably) that the Channel no longer contains key genre or output content, then Rogers may, in addition to any other remedies it has, seek to renegotiate the terms of the agreement:

If at any time, Rogers, acting reasonably, determines that the Service does not contain key output content (where applicable) or adhere to the genre as set out in Schedule I, or in the event that [Corus] seeks to rebrand the Service (where “rebrand” refers to a material change to the genre of the Service or a change of output content, and not merely a name change), then Rogers may, at its option, in addition to any and all remedies available to Rogers hereunder at law or in equity, seek to renegotiate the terms of this Agreement, which renegotiation Network agrees to participate in good faith.

[21] Corus argues, in the context of all these provisions, that allowing Rogers to unilaterally remove the Channel would produce a commercially unreasonable result, in that it would defeat Corus’s reasonable expectation of revenue predictability which, Corus argues, lies at the heart of the agreements.

[22] Notwithstanding the forceful presentation by counsel for Corus, I am unable to accept these arguments.

[23] I start with the observation that nothing in the agreement expressly prohibits Rogers from removing a Corus channel from one of its television packages. It is a question of interpretation of s. 3(a) whether or not Rogers has this right.

[24] Corus’s interpretation of section 3(a) requires reading the first proviso as applying only to “new packages”, portraying this section as restricted to forward-looking changes rather than retrospective changes to existing packages. But the word “new” does not appear in section 3(a) at all. Where the parties intended to make a right applicable only to “new packages”, they said so. This is evident in section 3(c), which provides that Rogers will make good faith efforts to provide Corus with a consultation right on the “launch of any new programming packages”.

[25] Corus has made selective use of applicable dictionary definitions. First of all, the act of “making” or “forming” something has an expansive meaning; it may involve generating something brand new, but it also embraces the idea of modifying, reducing or expanding something already in existence. Corus also neglects other, even more expansive definitions of the word “create”, e.g., “to produce or bring about by a course of action or behavior”, “to produce through imaginative skill”, and “to cause to happen; bring about; arrange, as by intention or design”. These definitions do not suggest the narrow meaning that Corus seeks to apply to section 3(a). Removing a channel from a television package easily fits within the concept of “making”, “forming”, “bringing about” or “arranging” a package of television offerings.

[26] Corus’s interpretation of Rogers’ right to freely create packages is also difficult to reconcile with the wording that immediately follows the first proviso: “Notwithstanding the foregoing, Rogers confirms that it will continue to distribute the existing Services in the packages existing as of the date of the execution of this Agreement.” This negotiated limitation gives meaning to what precedes it. It establishes an exception to Rogers’ right to freely create packages by carving out a subset of packages that Rogers agreed not to modify for the duration of the agreement, i.e., those packages existing as of the execution date, which was in September 2018.

[27] If the right to “freely create” packages did not include the right to modify existing packages, why was the second proviso in section 3(a) necessary at all? On Corus’s interpretation of section 3(a), Rogers never had that right in the first place, so the limitation in the second proviso would have been unnecessary.

[28] I would also note, by way of context and surrounding circumstances, that Corus is a large and sophisticated player in the Canadian television industry. In 2023, Corus had revenues in excess of $1.5 billion and total assets of over $2.7 billion. It negotiated the east and west Canada agreements with its BDUs (Rogers and Shaw) with the benefit of its own independent legal and other professional advice.

[29] In 2019, in its distribution agreement with Shaw, Shaw reserved to itself rights comparable to those of Rogers in section 3(a). The west Canada agreement provides, in section 2(a) that Shaw had the right to package Corus services “in its absolute discretion”. However, Corus negotiated a limitation of that right to change packages, to require that Shaw provide 120 days prior written notice of any packaging change. During the notice period, the parties committed to work together in good faith to minimize, among other things, any potential impact of the proposed change on Corus’s revenues.

[30] Then, in 2022, Corus negotiated a further limitation on the exercise of Shaw’s “absolute discretion” under section 2(a). In a 2022 amending agreement, section 2(a) was revised to add, as the final sentence: “Notwithstanding the forgoing, during the Term, Shaw will not remove any Service from a package unless Shaw eliminates such package altogether [emphasis added].” [2]

[31] Thus, when Corus wanted to limit the broad powers of the BDUs to unilaterally change packages by, among other things, removing specific channels, it knew how to do so.

[32] Corus’s reliance on past conduct between the contracting parties in this case is unhelpful. Rogers has not unilaterally removed a Corus channel from one of its television packages before because Corus has never lost a significant service like the “Bravo” content before. The use of post-contractual practice in contract interpretation is fraught with difficulties. Resort to it should only be taken in certain narrow, restricted circumstances which have not been established here: Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912.

[33] Even more unhelpful is the claim of Corus’s affiant that “Rogers has absolutely always understood that it is not permitted to remove Corus programming services from packages” and that in multiple conversations he had with Rogers’ representatives “it was always expressly understood that, once a package was launched, Rogers could not remove Corus programming services from the package.”

[34] The law is clear that evidence of subjective intentions or understandings is not admissible to interpret a commercial contract. In addition, the affiant’s evidence also suffers from its expressions of blatant opinion about what was allegedly in the mind of another person. Even if I were to admit and consider this evidence, its weight would be singularly undermined by the fact that the same affiant signed off on regulatory filings with the CRTC in which it was represented by Corus that “Rogers maintains complete control over the packaging and pricing of the Services and all Corus channels. Currently, if a subscriber receives one of the Services that is because the subscriber has either selected the service, or Rogers has decided to package it in a particular way.”

[35] Although Corus referred to section 3(c) as part of the overall context, Corus does not appear to argue that Rogers failed to engage in prior consultations over the introduction of new programming. Taking such a position would, in any event, be completely inconsistent with the main argument made by Corus, which is that the removal of the Channel from Rogers’ existing packages is prohibited precisely because it is not “new programming”.

[36] Section 6 of the agreement simply has no application to the facts of this case. Section 6 expressly deals with Corus’s obligation to make key output content available 24/7. Under section 6(b) it is only where Rogers determines the obligations of Corus are not being met that Rogers may “at its option, in addition to any and all remedies available to Rogers hereunder at law or in equity, seek to renegotiate the terms of this Agreement, which renegotiation Network agrees to participate in good faith.”

[37] Section 6 is for the protection of Rogers, not Corus, and imposes obligations on Corus, not Rogers. Further, whatever the effect of section 6, it is in addition to any and all remedies available to Rogers under the contract, at law or in equity. Section 6 in no way limits or adumbrates the right granted to Rogers in section 3(a) for Rogers, “at its sole option, to freely create retail product packages”.

[38] Corus’s argument that “the date of execution of the Rogers East Agreement” for the purposes of section 3(a) has been “brought forward” from September 21, 2018 to September 8, 2023 (so as to include in those services protected by the second proviso in section 3(a), all channels added to packages from 2018 to 2023), is without merit. This argument derives from section 13 of the 2023 amending agreement which provides:

On and after the Amendment Effective Date, each reference in the Rogers-Corus Agreement and/or the Shaw-Corus Agreement to the “Agreement” and each reference to such documents in any and all other agreements, documents, and instruments delivered by Rogers or Network in accordance with the Rogers-Corus Agreement and/or the Shaw-Corus Agreement shall mean and be a reference to the Rogers-Corus Agreement and/or the Shaw-Corus Agreement as amended by this Amending Agreement.

Corus’s argument ignores the remainder of section 13, which states that:

Except as specifically amended by this Amending Agreement, the [East] Agreement and [West] Agreement shall remain in full force and effect and each is hereby ratified and confirmed [emphasis added].”

[39] There has never been an amendment to section 3(a). Section 3(a) remains as it was when it was agreed upon in 2018. I cannot accept that a technical provision intended to create continuity between past and present arrangements brought about substantive changes to the relevant agreements of the kind Corus is now arguing for.

[40] As noted above, Corus says it would be a “commercially absurd outcome if the Agreements gave Rogers the right to unilaterally remove a Corus service from its subscription packages, at any time” since “Corus would have no revenue predictability.”

[41] Rogers and Corus are arm’s-length commercial parties. They are entitled, indeed expected, to behave in an economically self-interested manner. Rogers has no free-standing, contractual obligation to provide “revenue predictability” to Corus. Corus is a sophisticated industry player and is capable of negotiating agreements that reflect its own assessments of risk and reward. This is exactly what Corus did in connection with Shaw’s rights to change or remove packages in its agreements with Shaw in 2019 and 2022. Further, as all parties agree, it is Rogers, not Corus, which has the direct relationship with customers. It was reasonable for Rogers to bargain for flexibility to respond to evolving market dynamics in content offerings and its customers’ preferences.

[42] In conclusion on this point, I find that Rogers’s right, at its sole option, to freely create retail product packages confers a broad right to package Corus’s channels as Rogers sees fit. The removal of the Channel from Rogers’ television packages falls within the rights conferred on Rogers in section 3(a) of the eastern Canada agreement, subject to the second proviso in section 3(a). It is common ground, however, that to the extent the Channel was included in any Rogers television package in 2018, it will continue to be so until the expiry of the agreement.

The Section 15.01(1) Standstill

[43] Corus’s affiliation agreements with Rogers are regulated by the CRTC. The 2023 amending agreement, which amends both the east and west Canada agreements, provides that the parties’ termination rights are subject to CRTC regulations. The east Canada agreement expressly provides that the parties must comply with the rules, regulations and decisions of the CRTC.

[44] As noted earlier, the Broadcasting Distribution Regulations impose a standstill where terms of carriage or terms of carriage of programming services are in dispute. This standstill rule is embodied in section 15.01(1) of the Regulations and provides:

During any dispute between a licensee and a person licensed to carry on a programming undertaking or the operator of an exempt programming undertaking concerning the carriage or terms of carriage of programming services or concerning any right or obligation under the Act, the licensee shall continue to distribute those programming services at the same rates and on the same terms and conditions as it did before the dispute.

[45] In parallel to this application, Corus applied to the CRTC for confirmation that the standstill applies to prohibit Rogers from removing the Channel. Both Corus and Rogers have made submissions to the CRTC in respect of that complaint. As of the hearing of this application, the CRTC has not yet ruled on Corus’s request.

[46] In the absence of a response from the CRTC, Corus initially requested, in its application and in its factum, declaratory relief from the Ontario Superior Court of Justice as to the applicability of section 15.01(1) of the Regulations to Rogers’s stated intention to remove the Channel from its television packages.

[47] During oral argument, however, Corus agreed that the CRTC has exclusive jurisdiction to deal with the applicability of the Broadcasting Distribution Regulations, including section 15.01(1), the standstill, and Corus’s request for a declaratory order from this court in respect of section 15.01(1) was withdrawn: see Mahar v Rogers Cablesystems Ltd (1995), 25 OR (3d) 690 at para 16 (Ct J Gen Div): Fareau v Bell Canada, 2023 ONCA 303; Bazos v Bell Media Inc, 2018 ONSC 6146 and Iris Technologies Inc, et al v Telus Communications Company, 2019 ONSC 2502.

[48] However, Corus maintains that the standstill rule, in the context of Corus’s as yet undecided pending application before the CRTC, is still highly relevant to its request, in the alternative to the declaratory relief sought on this application, for an interlocutory injunction preventing Rogers from removing the Channel from its television packages until the CRTC has ruled on Corus’s complaint.

[49] I will deal with these arguments in the next section of these reasons.

The Interlocutory Injunction

[50] The issue of an interlocutory injunction came before the court in a peculiar way. The notice of application was only amended to plead injunctive relief on October 4, 2024. This was after the evidentiary record was complete. No mention of injunctive relief is made at all in the Corus initial factum, except by way of a throw-away line in the prayer for relief. The Rogers factum responds to the substance of this relief in one paragraph. It is only in the Corus reply factum that the components of the test for an interlocutory injunction are dealt with for the first time – and then in only three short paragraphs.

[51] The issue of the applicability and scope of the regulatory standstill is squarely before the CRTC. Both parties have completed their submissions to the CRTC on the point. Corus’s concern is that the CTRC has not yet ruled and may not rule on Corus’s complaint before Rogers takes the threatened action of removing the Channel from its television packages. If that happens, Corus argues it will suffer irreparable harm. Corus maintains that the balance of convenience favours prohibiting Rogers from removing the Channel until the CRTC has ruled.

[52] In my view, the motion for an interlocutory injunction from the Superior Court of Justice is misconceived. No case was cited for the proposition that this court may intervene to enjoin conduct that is expressly pending before, and within the exclusive jurisdiction of, the CRTC.

[53] The CRTC has all the powers it needs to deal with the dispute that is currently before it. Section 12 of the Broadcasting Act gives the CRTC the power to enquire into, hear and determine any matter that involves an alleged contravention of the Act or any regulations, licence, decision or order of the CRTC. Section 12(2) provides that the CRTC may make both mandatory and prohibitory orders, requiring a person to do anything it is required to do under, and to forbid the doing of anything which is contrary to, the Act or any regulations, licence, decision or order of the CRTC. Section 13 provides that orders of the CRTC may be enforced by the Federal Court or by any superior court of a province.

[54] Further, Corus’s concern, that the CRTC might not act in a timely manner to prevent the anticipated harm, is without any evidentiary support. In any event, even if the CRTC did not, contrary to its statutory mandate, act in a timely manner, Corus’s remedy is by way of an application for mandamus before the Federal Court of Appeal, which has exclusive powers of judicial review over the CRTC: Federal Courts Act, ss. 18 and 28.

[55] Finally, even if this court had the power, or was otherwise inclined, to intervene in these circumstances, the stringent test for an interlocutory injunction is not met. While there may be a serious issue about whether the standstill provision prohibits Rogers from removing the Channel, there is utterly no evidence to demonstrate irreparable harm (that is, harm that cannot be compensated by an award of money damages). On the record before me, all the inputs and data exist, in the records of Rogers and Corus, from which to determine quite precisely what revenues might be lost by Corus if Rogers unlawfully removed the Channel from its television packages.

[56] The motion for an interlocutory injunction is dismissed.

The Sealing Order

[57] Corus’s motion for a sealing order is made under s. 137 of the Courts of Justice Act.

[58] Court openness is protected by the Charter’s guarantee of freedom of expression. There is “always” a “strong presumption that justice should proceed in public view.” The open court principle promotes the public’s participation in court proceedings and its ability to understand and appreciate the daily work of the courts. This participation goes hand in hand with the media’s ability to report on the administration of justice. “In reporting what has been said and done at a public trial, the media serve as the eyes and ears of a wider public which would be absolutely entitled to attend but for purely practical reasons cannot do so.”

[59] The Supreme Court of Canada has established a three-part test for determining when limits on court openness ought to be granted, such as through a sealing order. The party seeking the sealing order must show that:

(a) court openness poses a serious risk to an important public interest;

(b) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and

(c) as a matter of proportionality, the benefits of the order outweigh its negative effects.

[60] When identifying the interest at the first stage of the test, courts must be “cautious” and “alive to the fundamental importance of the open court rule”. Where a party invokes an “important commercial interest” to justify a sealing order, the interest claimed must be “expressed in terms of a public interest”. The information sought to be sealed “must be of a ‘confidential nature’ in that it has been ‘accumulated with a reasonable expectation of it being kept confidential’ as opposed to ‘facts which a litigant would like to keep confidential by having the courtroom doors closed’.”

[61] In paras. 55 and 56 of the Sierra Club of Canada v. Canada (Minister of Finance) case, the Supreme Court cautioned the courts about what constitutes an “important commercial interest”. Justice Iacobucci wrote:

…the phrase “important commercial interest” is in need of some clarification. In order to qualify as an “important commercial interest”, the interest in question cannot merely be specific to the party requesting the order; the interest must be one which can be expressed in terms of a public interest in confidentiality. For example, a private company could not argue simply that the existence of a particular contract should not be made public because to do so would cause the company to lose business, thus harming its commercial interests. However, if, as in this case, exposure of information would cause a breach of a confidentiality agreement, then the commercial interest affected can be characterized more broadly as the general commercial interest of preserving confidential information. Simply put, if there is no general principle at stake, there can be no “important commercial interest” for the purposes of this test. Or, in the words of Binnie J. in F.N. (Re), [2000] 1 S.C.R. 880, 2000 SCC 35, at para. 10, the open court rule only yields “where the public interest in confidentiality outweighs the public interest in openness”.

In addition to the above requirement, courts must be cautious in determining what constitutes an “important commercial interest”. It must be remembered that a confidentiality order involves an infringement on freedom of expression. Although the balancing of the commercial interest with freedom of expression takes place under the second branch of the test, courts must be alive to the fundamental importance of the open court rule.

[62] A robust evidentiary burden also applies to the first stage of the test. The court will refuse to grant a sealing order where evidence of harm is “speculative, general and lacking in specifics” and where the risk of harm was not “real and substantial or well-grounded in the evidence”. Where the potential damage resulting from disclosure is unpredictable, it will be found “speculative”: Fairview Donut Inc v The TDL Group Corp, 2010 ONSC 789 at para 47 and 48; M.E.H. v. Williams, 2012 ONCA 35 at para. 34 and Out-Of-Home Marketing Association of Canada v. Toronto (City), 2012 ONCA 212 paras.56 to 58.

[63] The information sought to be sealed by Corus in this case includes: (i) the name and particulars of the Channel; (ii) specific provisions and details of the affiliation agreements between the parties, including amendments; (iii) information related to Corus’s business relationship with Rogers and the impact of Rogers’s removal of the Channel on Corus; and (iv) details and documents relating to the parties’ ongoing disputes before the CRTC, unless otherwise already public. This information is said to be contained in the following documents filed in these proceedings:

(a) Aide Memoire of the respondents dated August 29, 2024;

(b) Affidavit of Drew Robinson sworn September 5, 2024 and the exhibits attached thereto, as contained in the Application Record;

(c) Affidavit of Jason Fortino affirmed September 18, 2024 and the exhibits attached thereto, as contained in the Responding Application Record;

(d) Affidavit of Anne Lavigueur affirmed September 18, 2024 and the exhibits attached thereto, as contained in the Responding Application Record;

(e) Reply Affidavit of Drew Robinson sworn September 23, 2024 and the exhibits attached thereto, as contained in the Application Record;

(f) Transcript from the Cross-Examination of Jason Fortino held on October 1, 2024, as contained in the Application Record;

(g) Answers to Under Advisements and Refusals from the Cross-Examination of Jason Fortino held on October 1, 2024, as contained in the Application Record;

(h) Transcript from the Cross-Examination of Drew Robinson held on October 1, 2024, as contained in the Application Record;

(i) Answers to Undertakings from the Cross-Examination of Drew Robinson held on October 1, 2024, as contained in the Application Record;

(j) Factum of the applicants dated October 7, 2024;

(k) Responding Factum of the respondents dated October 17, 2024;

(l) Exhibits Brief of the respondents dated October 17, 2024; and

(m) Reply Factum of the applicants (to be delivered on October 21, 2024).

[64] I am unable to conclude that the requested sealing order meets the first branch of the Sherman Estate v. Donovan test.

[65] Much of the information sought to be sealed is public knowledge. It is public knowledge that:

• the Channel is owned and offered by Corus
• Rogers and Corus have a commercial relationship whereby Rogers distributes the Channel through its television packages
• the Channel was, until recently, a significant source of Bravo content in Canada
• in June 2024, Rogers Media acquired the rights to Bravo content in Canada, and Corus lost those rights
• in September 2024, Rogers Media launched its own Bravo channel based on the rights it acquired and
• Rogers issued a press release announcing its acquisition of Bravo content. Corus issued a press release outlining its plans for the Channel following the loss of Bravo content.

[66] Most of the rest of the information sought to be sealed does not qualify as confidential or proprietary information of Corus. For example, it was Rogers’ business decision to remove the Channel. I agree with para. 28 of Rogers’ factum on the sealing order motion to the effect that:

“Absent some contractual or other legal obligation on Rogers not to disclose its own business decisions—which does not exist here—Rogers is free to communicate those decisions to the public, should it choose to do so. Likewise, Corus has no obligation, contractual or otherwise, to stay silent in the face of Rogers’ business decisions. It is free to communicate its concerns publicly.

[67] Under s. 17(a) of the east Canada agreement, the parties agreed to maintain confidentiality over the provisions of the agreement. However, this agreement is subject to a significant carve out -- where it becomes necessary for the parties “to enforce their respective rights”. That is precisely what Rogers and Corus are doing in this case.

[68] Much of the information sought to be sealed involves subscriber data relating to the “viewership” of the Channel by Rogers’ customers. Under section 17(b) of the same agreement, the parties agreed that Rogers owns all data and information related to Rogers’ subscribers. “All data and information relating to Rogers subscribers” includes data about which subscribers are in which packages and whether they currently have access to the Channel. Rogers has sole ownership over that information. Section 17(b) is a confidentiality obligation that applies only to Corus (to the extent it receives such information in the course of the parties’ relationship). Section 17(b) imposes no restriction on Rogers’ use or disclosure of its own confidential or proprietary information.

[69] I am also not satisfied that the evidence offered by Corus meets the stringent test under Sierra Club of Canada v. Canada (Minister of Finance) and Sherman Estate v. Donovan. Corus’s affiant states:

If Corus’s competitors and counterparties become aware of the particular channel that Rogers purports to repackage, these competitors or counterparties may similarly decide that this Channel is no longer desirable. Similarly, if ad agencies or Corus’s clients perceive that their advertisements will no longer be as widely distributed on the Channel based on Rogers’ purported actions, they may choose to pull their advertisements from the Channel.

There is little detail to support the speculation that competitors “may” decide that the Channel is no longer desirable or that advertisers “may” choose to pull their advertisements from the Channel. This kind of speculative evidence is precisely what the Supreme Court has repeatedly warned against and what the Court of Appeal for Ontario has criticized in cases such as M.E.H. v. Williams and Out-Of-Home Marketing Association of Canada v. Toronto (City). In my view, Corus’s position falls into the “facts which a litigant would like to keep confidential by having the courtroom doors closed” category rather than the “accumulated with a reasonable expectation of it being kept confidential” category of information.

[70] The words of Spence J. in Publow v. Wilson, seem particularly apt in the present circumstances. Spence J., relying on what was then the leading case of Nova Scotia (Attorney General) v. MacIntyre, [1982] 1 S.C.R. 175, stated, at para. 18:

The disclosure of internal corporate information in the course of legal proceedings may almost always have the potential for harm to the company concerned and perhaps to others as well. This consequence of the resort to the courts is not limited to corporate parties in commercial matters; individuals may suffer from the public disclosure which ordinarily accompanies litigation. If the prospect of harm were a sufficient basis for preventing disclosure, a great many litigants might justifiably seek to have their proceedings shielded from public view, whether through a sealing order, an order for in camera proceedings or otherwise. Widespread granting of such orders could tend to diminish public confidence in the administration of justice. These considerations suggest that such orders should be available only in exceptional cases.

[71] It is true that CRTC filings are not generally available to the public. However, Corus has pleaded in its notice of application and disclosed in the public versions of its main factum and reply factum that Rogers and Corus are in “standstill” mode before the CRTC. Corus has also disclosed in those materials the fact that the CRTC has issued letters about the standstill. The existence of a standstill is therefore part of the public record, as are specific dates of communications from the CRTC -- the substance of which Corus has described at a high level.

[72] There is no principled reason, for example, why the fact that Rogers has applied to the CRTC to lift the standstill is confidential, proprietary, or commercially sensitive and must be sealed under the Sherman Estate v. Donovan test, while the fact of the standstill itself and CRTC communications about it are not. Corus’s position is somewhat inconsistent and self-serving on this point. And, in any event, the fact that Rogers has applied to the CRTC to lift the standstill was and remains Rogers’ business decision to communicate as it wishes. Corus has cited no basis for a right to prevent Rogers from disclosing its own business plans, decisions, or information.

[73] Having concluded that the requested sealing order does not meet the first part of the Sherman Estate v. Donovan test, it is unnecessary to consider whether the other parts of the test could be met in this case.

[74] The request for a sealing order is denied.

Conclusion

[75] For the forgoing reasons, the application for a declaration is dismissed. The motions for an interlocutory injunction and a sealing order are also dismissed.

Costs

[76] The parties agreed that all-inclusive costs to the successful party be broken down as follows:

$190,000 to the successful party on the application; and

$35,000 to the successful party on the sealing order motion.

[77] Costs are awarded to Rogers, payable by Corus, in these amounts.

Penny J.

Released: November 5, 2024

Footnotes

[1] I reach this conclusion solely as a matter of commercial contract interpretation. I make no comment on what Rogers is, or is not, entitled to do under applicable CRTC rules, regulations and practices. That question is within the exclusive jurisdiction of the CRTC to decide.

[2] Because Rogers has not eliminated the relevant television package containing the Channel “altogether”, Rogers concedes that it cannot unilaterally remove the Channel in western Canada under the west Canada agreement. It proposes to do so, however, when the west Canada agreement expires at the end of 2024.