YELDA HABER VE GÖRSEL YAYINCILIK A.S. Plaintiff v. GLWIZ INC. AND, 2023 FC 778

Date: 20230606 Docket: T-206-21 Citation: 2023 FC 778 Toronto, Ontario, June 6, 2023 PRESENT: Associate Judge Trent Horne BETWEEN: YELDA HABER VE GÖRSEL YAYINCILIK A.S. Plaintiff and GLWIZ INC. AND GOLD LINE TELEMANAGEMENT INC. Defendants ORDER AND REASONS I. Overview [ 1 ] This is the second discovery motion brought by the defendants, brought after a follow up examination. In the main, it seeks to compel answers to questions that were the subject of an earlier ruling, or could have been asked at the initial examination.

The foundation for the motion is an affidavit that the defendants had in hand (but was not produced) before the initial examination. [ 2 ] The order on the defendants’ first discovery motion was not appealed, and is final. The defendants cannot rely on information they already had to relitigate what has already been decided. II. Background [ 3 ] This is an action for copyright infringement. The plaintiff describes itself as a television broadcasting undertaking and enterprise headquartered in Isanbul, Turkey.

It alleges that it creates, owns, broadcasts and streams original entertainment programs. [ 4 ] The defendants are alleged to operate a Canadian-based global IPTV service that delivers multicultural programming via internet streaming. The plaintiff pleads that the defendants broadcast and distributed the plaintiff’s programs without a license. The defendants deny infringement, and say that they have been given authority to broadcast the works. [ 5 ] The plaintiff’s representative, Mr Kerim Emrah Turna, was examined for discovery on August 11, 2022.

During that discovery, the defendants asked questions about the plaintiff’s licensing practices. Specifically, the defendants asked questions about entities called Digiturk, D-Smart and Teledunya, including questions about the plaintiff’s commercial relationship with them. Some of those questions were refused, and were the subject of a motion that was heard on December 19, 2022. For reasons given during the hearing, I dismissed the defendants’ motion. The order was not appealed. [ 6 ] There was a continued examination of Mr Turna on March 9, 2023.

At that continued examination, the defendants asked further questions about the plaintiff’s licenses with Digiturk, D-Smart and Teledunya. A number of those questions were refused, and are now the subject of a second motion. [ 7 ] Two of the questions, described as Under Advisement 9 and Refusal 11, were resolved before the hearing. There was disagreement as to whether any further discovery on these new documents would be oral or in writing. As indicated during the hearing, any further discovery on these documents will be oral, and is expected to be brief. III.

Substitution of the Plaintiff’s Discovery Witness [ 8 ] In their written representations, the defendants ask that a different witness be made available for examination. Such an order can be made under subrule 237(3) of the Federal Courts Rules SOR/98-106 ( " “ Rules ” " ), but no such relief is requested in the notice of motion. [ 9 ] The defendants rely on their request for " “such further and other relief” in the notice of motion.

" Phrases such as " “such further and other relief as counsel may advise and this Honourable Court deems just” " or other basket clauses have been determined to be insufficient to meet the requirements of Rule 301 ( SC Prodal 94 SRL v Spirits International BV , 2009 FCA 88 at para 11 ), and I see no reason to treat notices of motion (which also require that the relief sought be set out (subrule 359(b)) differently .

See also McCain Foods Limited v JR Simplot Company , 2021 FC 890 at paras 34-40 where a request for substitution of a discovery witness was rejected because it was not raised in the notice of motion. [ 10 ] There was no request in the defendants’ notice of motion for a substitution order, and no such order will be made.

IV. Scope of Follow up Discovery [11] A central issue on this motion is the proper scope of a follow up examination for discovery. [12] Pursuant to the Court’s Case and Trial Management Guidelines for Complex Proceedings and Proceedings under the PM(NOC)Regulations dated October 16, 2020, particularly paragraph 7, examinations for discovery shall be conducted by way of a singlecomprehensive examination.

With leave of the Court, a follow up examination may be conducted, addressing answers to undertakings,questions ordered to be answered and documents ordered to be produced. [13] While there is an ability to conduct a follow up examination on new documents or information received, this ability is not a ticket ofentry to revisit matters that could or should have been addressed in the first instance. On an initial examination, a question must berelevant, proper, and proportionate. The scope of a follow up examination is narrower.

It is not enough to demonstrate relevance alone. [14] The defendants place significant weight on an affidavit sworn on September 7, 2021 by Süleyman Sarilar (before the date of the firstexamination of Mr Turna) ("“Sarilar Affidavit”"). It has the style of cause for this proceeding. Mr Sarilar states he is the former GeneralBroadcasting Manager at a company that was purchased by the plaintiff. His affidavit speaks to the plaintiff’s dealings with Digiturk,D-Smart and Teledunya, and states that the defendants were authorized by the plaintiff to broadcast certain content.

As part of themotions in December 2022, I ordered that the defendants produce this affidavit to the plaintiff. It is apparent from reviewing thetranscript of Mr Turna’s first examination that the information in that affidavit was known to the defendants at the time they examinedMr Turna. The defendants have not introduced evidence on this motion that any facts and information in the Sarilar Affidavit wereunknown to them at the time of the initial examination. I am not persuaded that it discloses any information that was not known to thedefendants at the time of the initial examination. V.

Functus Officio; Issue Estoppel [15] As noted above, the order made on the defendants’ December 2022 discovery motion was not appealed. It is final. If the defendantswere of the view that my decision required correction, the avenue to obtain a different outcome is to exercise rights of appeal, not tocontinue the discovery, ask the same questions, and bring a motion for the same relief based on information they already had. It is afundamental principle that once a Court has decided an issue, it may not be relitigated. [16] When a judge has issued a final order or judgment, they are functus officio.

It means that they have exhausted their jurisdiction overthe subject matter of the litigation and that an order or judgment, once made, cannot be revisited by the court that made it. The principleof functus officio ensures the finality of orders or judgments, and provides that the Court cannot reconsider or alter its decisions oncethey have been rendered (Alsaloussi v Canada (Attorney General), 2021 FC 168 at para 12, citing Janssen Inc v Abbvie Corporation,2014 FCA 176, Halford v Seed Hawk Inc, 2004 FC 455, and Chandler v Alberta Association of Architects, (SCC),[1989] 2 SCR 848).

I see no reason why the orders of a case management judge would be treated differently than orders of a judge.

Alimited exception to this principle is a motion to set aside or vary an order by reason of a matter that was discovered subsequent to themaking of the order (subrule 399(2)(a)), a step the defendants did not take, and does not appear applicable since the content of the SarilarAffidavit was known to the defendants before conducting their discovery of the plaintiff. [17] Specifically in respect of motions, a decision on a motion is binding on the parties, at least with respect to other proceedings in thesame action.

As a general principle, it is not open for the court, in a case of the same question arising between the same parties, to reviewa previous decision not open to appeal (Kendall v Sirard, 2007 ONCA 468 at para 43, citing Ward v Dana G Colson Management Ltd(1994), 24 CPC (3d) 211 (Gen Div) at 218, aff’d [1994] OJ No. 2792 (CA)). [18] The defendants argue that the Sarilar Affidavit is a "“shift in the factual matrix”", and justifies revisiting the questions and issuesthat were already before the Court, and have already been decided.

I disagree. [19] The defendants rely on Toronto (City) v CUPE, Local 79, 2003 SCC 63 (“CUPE”), particularly at paragraph 53. There, the SupremeCourt notes that there are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that ofabuse of process, would create unfairness.

The defendants assert that it would be unfair if the disputed questions are not orderedanswered, and that there may be trial by ambush. [20] As set out in CUPE at para 53, some of the factors to be considered when applying the bar against relitigation include an inadequateincentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process. The existence of thesecircumstances may overcome the interest in maintaining the finality of the original decision.

None of these factors apply here. [21] The defendants had an incentive to, and did, vigorously prosecute their discovery motion that was heard in December 2022. None ofthe evidence now relied on is new; the information in the Sarilar Affidavit was known to the defendants before the first discovery of theplaintiff’s witness. Some of the questions in dispute on this motion were already asked. The rest could have been. There is no allegationthat the December 2022 motion was procedurally unfair to the defendants.

Whether the questions that were the subject of that motionwere relevant, proper and proportionate has been adjudicated. Rights of appeal were not exercised. No motion was brought to set aside orvary the order. [22] I agree with the plaintiff’s submission that relevance is defined by the pleadings, not the productions. The fact that the defendantshave produced a document, with information that was already known to them, cannot justify relitigating discovery questions.

It would beunfair to the plaintiff to permit the defendants to collaterally attack the December 2022 order by production of their own document (evenif production was compelled) or information it had before that motion. [23] Some of the questions now in dispute (e.g. production of any license agreement with Digiturk) were specifically asked during theinitial discovery, and the subject of the order made on the December 19, 2022 motion. Having received a ruling that the plaintiff was not

required to produce that license, it was improper to ask the same question on a follow up examination, and then bring another motion seeking the same relief. [ 24 ] Other questions could have been asked in the initial examination. The defendants were aware of D-Smart and Teledunya at the initial discovery, and asked questions about these entities. The defendants could have asked whatever other questions they wanted relating to licenses with those entities in the first instance. [ 25 ] Refusal 5 relates to production of payment receipts. Payment receipts were the subject of the defendants’ motion in December 2022.

In reply submissions during the earlier motion on that point, counsel stated: " “I can agree that the payment receipts are likely seeking a little bit too much here” " , and continued to make submissions on the propriety of other questions. That submission appeared to withdraw the question with respect to payment receipts. In any event, the motion as it related to this question was dismissed. But on the continued discovery, the defendants further pursued production of payment receipts, and again on this motion.

I cannot accept that disclosure of the Sarilar Affidavit can be used to justify a further change of position on this issue. [ 26 ] I have particular difficulty with Refusal 7, which relates to payments from an entity called GEM. The

summary of the question in the materials for this motion is virtually identical to the question that was before me in December 2022, and I ordered that it not be answered. The Sarilar Affidavit does not mention GEM at all. I have difficulty seeing a second motion for precisely the same relief as anything other than vexatious in the circumstances. [ 27 ] Refusals 1-9 were either the subject of the order made on the December 2022 motion, or were questions that could have been asked during the initial examination. The motion in respect of these questions is dismissed. VI.

Rules 232 and 248 [ 28 ] The defendants also request an order, in the alternative, pursuant to Rules 232 and 248, restraining the plaintiff from subsequently producing and/or using documents that are responsive to questions that were asked and refused during the continued examination for discovery of Mr Turna on March 9, 2023. [ 29 ] The prohibition in these Rules is presumed to apply, and an order is not necessary to engage them. These Rules generally apply to use of documents and information at trial. What evidence is admissible or inadmissible at trial is for the trial judge to decide.

I am not aware of any jurisprudence interpreting these Rules that permits a member of the Court hearing an interlocutory motion to make an advance ruling on trial evidence, and I will not make such an order.

If any documents in the possession, power or control of the plaintiff are revealed for the first time at trial, that is a matter for the trial judge to resolve. [ 30 ] As for the defendants’ request that the plaintiff be prohibited from producing further documents, this must be considered in light of Rule 226, which sets out a positive obligation of continuing disclosure. [ 31 ] In Apotex Inc v Sanofi Aventis , 2010 FC 481 (“ Apotex ”) prothonotary (now associate judge) Tabib made an order that n o supplementary affidavit of documents could served after a fixed date, and that no corrected or completed information in answer to a discovery question could be provided after another fixed date.

I note that in Apotex , unlike this proceeding, trial dates had been fixed. Particularly given the plaintiff’s unwavering position that certain licenses and any documents relating to them are irrelevant, I do not have an immediate concern that the defendants will be ambushed with late disclosure of these materials. [ 32 ] That said, litigation timetables established during the case management process sometimes include a deadline for final production of documents or corrected discovery answers. The parties will be directed to submit a

schedule for the steps leading up to trial. One of those steps will be a deadline, following which documents may not be produced, or corrected discovery answers provided, without leave of the Court. That will give both parties an assurance that discoveries are at an end. VII. Costs [ 33 ] The Court has full discretionary power over the amount and allocation of costs (subrule 400(1)). [ 34 ] Among the factors I can consider in the assessment of costs is whether a step was improper, vexatious or unnecessary (subrule 400(3)(k)(i)). [ 35 ] An award of costs can perform more than one function.

Costs can regulate conduct (e.g. by promoting early settlement), indemnify the successful party, and deter impetuous, frivolous and abusive behaviour ( Sherman v Canada (National Revenue) , 2003 FCA 202 at para 46 ). [ 36 ] The plaintiff requests costs of $3,500.00, payable forthwith. The plaintiff’s submissions did not make reference to the Tariff, however this amount approximates what would be awarded at the high end of Column V.

The defendants submit that, while they were unsuccessful in part, the motion was necessary to obtain further financial information, and that in light of divided success, there should be no award of costs. [ 37 ] While the defendants were partially successful, the majority of the written materials and almost all oral submissions were directed to questions that were or could have been asked in the first round of discovery, and the subject of a final order. Having regard to the issues as a whole, success was in no way equally divided. The motion, as it relates to Refusals 1-9, should not have been brought.

The defendants did not have a reasonable basis to relitigate matters that have already been decided and not appealed. Subrule 401(2) applies, and costs will be payable forthwith. [ 38 ] As for the quantum of costs, I am satisfied that the plaintiff’s request is reasonable, if not at the low end of what should be awarded.

Recovery under the Tariff, particularly Column III, would be inadequate. Even if the amount requested by the plaintiff exceeds what could be awarded under Column V, I am satisfied that a departure from the Tariff is necessary in this case, particularly in light of the relitigation of questions that were the subject of a previous order, and further pursuit of a line of inquiry that was effectively abandoned on the earlier motion. [ 39 ] Costs of the motion will be fixed at $3,500.00, payable by the defendants to the plaintiff forthwith, and in any event of the cause.

This amount recognizes that the defendants obtained some relief on the motion. Had the motion been restricted to Refusals 1-9, the award would have been higher. ORDER in T-206-21 THIS COURT ORDERS that : 1 . The plaintiff shall answer questions identified as Under Advisement 9 and Refusal 11. Any further documents responsive to these questions shall be served by June 23, 2023. 2 .

The defendants are granted leave to conduct a further examination for discovery, limited to documents produced in response to questions identified as Under Advisement 9 and Refusal 11, and any documents or updated discovery answers that may be produced by the plaintiff after the date of this order. 3 . The parties shall write to the Court by July 7, 2023 with a status update, together with a proposed timetable for the remaining steps in the proceeding up to the pre-trial conference.

The timetable shall include a deadline following which documents may not be produced, or corrected discovery answers provided, without leave of the Court. 4 . The defendants’ motion in respect of questions identified as Refusals 1-9 is dismissed. 5 . The defendants’ motion for relief under Rules 232 and 248 is otherwise dismissed. 6 . Costs of the motion are payable by the defendants to the plaintiff, fixed at $3,500.00, payable forthwith and in any event of the cause.

"Trent Horne" Associate Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-206-21 STYLE OF CAUSE: YELDA HABER VE GÖRSEL YAYINCILIK A.S. v GLWIZ INC. AND GOLD LINE TELEMANAGEMENT INC. PLACE OF HEARING: held via video conference DATE OF HEARING: june 2, 2023 ORDER and REASONS: HORNE A.J. DATED: June 6, 2023 APPEARANCES : Jim Holloway Jacqueline Chan For The Plaintiff

Michael Schwartz Michael Adams For The Defendants SOLICITORS OF RECORD : BAKER & MCKENZIE LLP Barristers and Solicitors Toronto, Ontario For The Plaintiff RICHES, MCKENZIE & HERBERT LLP Barristers and Solicitors Toronto, Ontario For The Defendants