2023 FC, 2023 FC 1163

Date: 20230829 Docket: T-374-21 Citation: 2023 FC 1163 [ENGLISH TRANSLATION REVISED BY THE AUTHOR] Ottawa, Ontario, August 29, 2023 PRESENT: Mr. Justice Sébastien Grammond BETWEEN: VIDÉOTRON LTÉE GROUPE TVA INC. TVA PRODUCTIONS II INC. Plaintiffs Defendants by counterclaim and TECHNOLOGIES KONEK INC. COOPÉRATIVE DE CÂBLODISTRIBUTION HILL VALLEY LIBÉO INC.

LOUIS MICHAUD JOÉ BUSSIÈRE JEAN-FRANÇOIS ROUSSEAU Defendants Plaintiffs by counterclaim ORDER AND REASONS (USE OF CONFIDENTIAL DOCUMENTS) [ 1 ] The defendants are seeking permission to use information subject to a confidentiality order issued in this proceeding in support of an application they intend to make to the Canadian Radio-television and Telecommunications Commission [CRTC]. [ 2 ] I dismiss this motion as it lacks a factual basis, regardless of the legal test applicable. [ 3 ] In Novartis Pharmaceuticals Canada Inc v Mylan Pharmaceuticals ULC , 2016 FC 1091 at paragraph 8 , Associate Justice Mireille Tabib stated that a confidentiality order could not be varied or that the use of information covered by such an order could only be authorized in the presence of a " “change in circumstances or a compelling reason not directly considered when the order was given” " . [ 4 ] In this case, the defendants provide no evidence of a change in the circumstances that led to the issuance of the confidentiality order.

That order was the subject of an agreement between the parties and approved by the Court. During the proceeding, the defendants did not challenge the designation of information under that order, even thought they could have done so. Of course, the accidental disclosure of information reserved for lawyers to one of the defendants does not constitute a change in circumstances and does not justify the amendment of the order. [ 5 ] The intention to apply to the CRTC is neither a change in circumstances nor a compelling reason that had not been contemplated.

The CRTC has already dismissed two applications brought by the defendants concerning their dispute with the plaintiffs. The defendants have not explained the basis of the new application they intend to submit, nor how certain documents covered by the confidentiality order would be required to support such an application.

In fact, the defendants do not even identify the documents they wish to use before the CRTC, making it all the more difficult to assess their application. [ 6 ] The result would be the same if I were to use the test set out in Juman v Doucette , 2008 SCC 8 , [2008] 1 SCR 157, for the use of information subject to the implied obligation of confidentiality. The existence of a public interest greater than the interests protected by the confidentiality order must be demonstrated.

According to the Supreme Court, such situations must remain exceptional. [ 7 ] In this case, the defendants have not demonstrated a public interest that would justify setting aside the confidentiality of the documents in question. The mere fact that this is a broadcasting matter is not enough. The dispute is between two private companies. The defendants have also failed to demonstrate how maintaining the confidentiality order will prevent the CRTC from fulfilling its mandate. [ 8 ] Therefore, the defendants’ motion will be dismissed. Normally, I would award costs to the plaintiffs.

However, since I am dismissing another motion brought by the plaintiffs, I will not award costs. ORDER in T-374-21 THIS COURT ORDERS as follows:

1 . The defendants’ motion for leave to use information covered by the confidentiality order of June 22, 2021 is dismissed. 2 .

No costs are awarded. “Sébastien Grammond” Judge FEDERAL COURT SOLICITORS OF RECORD Docket: T-374-21 STYLE OF CAUSE: VIDÉOTRON LTÉE, GROUPE TVA INC., TVA PRODUCTIONS II INC. v TECHNOLOGIES KONEK INC., COOPÉRATIVE DE CÂBLODISTRIBUTION HILL VALLEY, LIBÉO INC., LOUIS MICHAUD, JOÉ BUSSIÈRE, JEAN-FRANÇOIS ROUSSEAU MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO, PURSUANT TO SECTIONS 3, 369 AND 399 OF THE FEDERAL COURTS RULES ORDER AND REASONS: GRAMMOND J DATED: August 29, 2023 APPEARANCES : Jean-Sébastien Dupont François Guay Étienne Lacroix-Couillard Lambert Beaulac For the plaintiffs Joshua Spicer William Audet Abdulkadir Abkey For the defendants SOLICITORS OF RECORD : Smart & Biggar LLP Montréal, Quebec For the plaintiffs Bereskin & Parr LLP Toronto, Ontario Abkey Avocats Inc.

Québec, Quebec For the defendants