2020 FC, 2020 FC 1164

Date: 20201217 Docket: T-1663-19 Citation: 2020 FC 1164 Toronto, Ontario, December 17, 2020 PRESENT: Case Management Judge Angela Furlanetto BETWEEN: CANADIAN BROADCASTING CORPORATION / SOCIÉTÉ RADIO-CANADA Applicant and CONSERVATIVE PARTY OF CANADA AND CONSERVATIVE FUND CANADA Respondents ORDER AND REASONS I.

Background [ 1 ] This is a motion brought by the Respondents under subsection 34(6) of the Copyright Act to convert the herein application to an action. [ 2 ] The underlying application involves allegations of unauthorized use by the Conservative Party of Canada and its agents ( " “CPC” " ) of clips from the Canadian Broadcasting Corporation/Société Radio-Canada’s ( " “CBC” " ) programing on CPC’s Facebook page, YouTube page and website, and from the Federal Leaders Debate in CPC’s online tweets, prior to the 2019 Federal election.

CBC alleges that the clips are a substantial part of copyrighted works owned by the CBC and that the use of the clips is copyright infringement. [ 3 ] The proceeding has been ongoing for over a year and is only months away from a hearing.

This motion is the second time that the Respondents have raised the issue of the conversion of the proceeding to an action. [ 4 ] The issue was first raised one week after the proceeding was commenced, on October 17, 2019, when the Respondents, then represented by Dentons LLP, brought a motion to dismiss the application in its entirety, or in the alternative to convert the application to an action.

On October 25, 2019, the motion was adjourned sine die , on consent of the parties. [ 5 ] On December 18, 2019, the CBC delivered its evidence in the application, including a 25-page, 61 Exhibit, affidavit from Jennifer McGuire, the then Editor-in-Chief and General Manager of CBC News for the CBC, and a shorter 4-page affidavit from Luce Julien, the General Director of Information, French services for the CBC. [ 6 ] On December 20, 2019, the Conservative Fund Canada retained their current counsel, who was subsequently also retained to represent the Conservative Party of Canada on February 20, 2020.

On January 30, 2020, the Respondents’ new counsel confirmed their intention to proceed with the motion to convert the application, together with a motion under Rule 4 of the Federal Courts Rules / Rule 15.02(1) of the Ontario Rules of Civil Procedure , which requested confirmation of authorization in respect of individual applicants whose allegations were dropped from the proceeding shortly after it was commenced . [ 7 ] The motion was set to proceed on July 17, 2020 and was fully briefed by the parties.

The Respondents ultimately abandoned the request for conversion on July 16, 2020, with the Respondents agreeing to pay costs in association with this part of the motion. [ 8 ] On August 24, 2020, a

schedule was set for the remaining steps in the application, including for the hearing of the application on February 11 and 12, 2021. As part of that schedule, the Respondents delivered their evidence on October 16, 2020, which consisted of a 50-page affidavit from the Director of Communications of the CPC, Cory Hann ( " “Hann Affidavit” " ). The Hann Affidavit with exhibits is described as totalling nearly 500 pages. [ 9 ] On November 6, 2020, the Applicant delivered its Reply evidence, which included a short seven-paragraph affidavit from Ms. McGuire. [ 10 ] In accordance with the

schedule for the proceeding, cross-examinations were scheduled to take place on November 16, 2020 (Ms. Julien), November 17, 2020 (Ms. McGuire) and November 18, 2020 (Mr. Hann). [ 11 ] In a letter dated November 6, 2020, the Applicant advised the Respondents that it planned to proceed with the cross-examination of Mr. Hann despite objections to the propriety and admissibility of aspects of his evidence; opting to reserve its right to raise the objections at the hearing of the application.

On November 9, 2020, the Respondents wrote to the Applicant, seeking clarification of the offending portions of the Hann Affidavit and requesting that a case management conference be convened. [ 12 ] On November 10, 2020, the Applicant responded by disagreeing with the request for particulars of its concerns with respect to the Hann Affidavit and delivering a Direction to Attend in respect of the examination. [ 13 ] Discussions between the parties followed, including as to whether, at the Respondents’ request, the cross-examinations should be

adjourned until the issues with respect to the evidence and requests with respect to Mr. Hann’s Direction to Attend were resolved. [ 14 ] A notice of motion for the herein motion was served on November 13, 2020. [ 15 ] On November 16, 2020, a case management conference was convened. The cross-examinations were subsequently rescheduled in view of dates being moved to allow for the hearing of this motion. Directions to Attend with respect to Ms. McGuire and Ms. Julien’s rescheduled cross-examinations were delivered on November 23, 2020. II.

Issues for Determination [ 16 ] There are two issues before the Court on this motion: 1. Should this application be converted to an action? 2. If the application is not converted, should the alternative relief be granted to the Respondents, namely an Order:

a) that the dismissal is without prejudice to a further motion for conversion of the application being brought at a later date;

b) granting leave to adduce additional affidavit evidence under Rule 312 of the Federal Courts Rules ;

c) extending the time to conduct cross-examinations pursuant to Rules 8 and 308 of the Federal Courts Rules , until 30 days following the filing of any additional affidavits; and

d) adjourning the application hearing date to another date? III. Should the Application be Converted to An Action? A. Legal Test for Conversion and Factors Raised by the Parties [ 17 ] Subsection 34(6) of the Copyright Act provides the Court with authority to convert an application to an action where it considers it " “appropriate” " . This provision gives the Court wide latitude and control over its own process and provides no criteria as to when it is " “appropriate” " to convert an application: Havana House Cigar & Tobacco Merchants Ltd . v.

Worldwide Tobacco Distribution Inc ., 2008 CarswellNat 5658 at para 21 ( " “ " " Havana House ” " ) . [ 18 ] Pursuant to subsection 34(4) of the Copyright Act , an initiating party has the right to choose whether a copyright infringement matter will proceed by way of application or by action, and if by application, to have the matter " “heard and determined without delay and in a

summary way” " . [ 19 ] As acknowledged by the Respondents, a copyright infringement matter does not need to proceed by way of action; indeed, many copyright infringement matters have proceeded by application, including complex matters such as Euro-Excellence Inc . v. Kraft Canada Inc ., 2007 SCC 37 , which was heard ultimately by the Supreme Court. The manner of proceeding is a choice and there is a high onus on the party seeking to convert an application to an action to establish why the Court should exercise its discretion to convert the application. [ 20 ] The Court in BBM Canada v.

Research in Motion Ltd ., 2011 FC 960 at para 19 ( " “ BBM ” " ), set out the following list of considerations for determining when to convert an application to an action in the face of opposition from an applicant: - The applicant’s choice of proceeding should not be lightly interfered with - The procedures on an application do not provide sufficient procedural safeguards to ensure fairness to the respondent - There may be steps taken by the applicant which militate against the respondent’s right to fully and fairly defend the application. Such matters may include: ▪ an applicant relying on affidavit(

s) from a person or persons not directly involved in the issues ▪ failure by an applicant to produce relevant documentation ▪ unwarranted interference by the applicant’s counsel by refusing proper and relevant questions on cross-examination - The number of issues - The complexity of the issues - Number of parties - Possible cross-applications or multiplicity of proceedings - Credibility of the parties is central to a determination of the issues [ 21 ] While complexity and novelty of legal issues are reasons which may make it more appropriate that a proceeding by heard as an action, they are not in and of themselves sufficient.

There must be more. ( Havana House at para 21). [ 22 ] The Court must consider the objective set out in Rule 3 of the Federal Courts Rules that the case should be adjudicated in the just, most expeditious and least expensive manner. The party seeking to change the process has the onus of demonstrating that the process chosen will not accomplish this objective. Consideration will be given to the stage of the proceeding when the motion is brought, and if

what is proposed will cause unnecessary delay and additional expense: BBM at para 21; Wildchild Stockholm, Inc. v. Canada (Attorney General), 2019 FC 874 at para 52 ; C.C. Jentsch Cellars Inc . v. O’Rourke Family Vineyards Ltd ., 2018 FC 875 at para 29 . B. The Parties’ Positions [ 23 ] The Respondents contend that the procedural limitations of an application are prejudicial to their ability to mount and frame a proper defence.

They raise three primary arguments in support of their request for conversion: 1) the relief sought has broader application than the dispute between the parties and warrants the procedural safeguards of an action; 2) the issues of copyright ownership, substantial taking and fair dealing are complex in the context of the proceeding and the Applicant has chosen not to adduce all of the relevant evidence in its possession and control on these issues which would otherwise be compellable in an action; and 3) evidentiary limitations have caused the credibility of the affiants to be put squarely in issue, but such credibility cannot properly be tested in the confines of an application, without viva voce evidence. [ 24 ] The Applicant asserts that they have a right to choose the manner of proceeding, that it is too late to convert the application now and that it would be prejudicial to do so.

They note that the Respondents have had the Applicant’s evidence for close to a year and that nothing has changed in the proceeding that would warrant conversion of the application, particularly when the proceeding is so close to a hearing. They contend that the proceeding is not overly complex; that any issues relating to the evidence can be dealt with on cross- examination and that any deficiencies in the evidence will only end up harming the Applicant who has the burden to prove its rights and its case on infringement. [ 25 ] For the reasons set out herein, the request for conversion will be dismissed.

Upon considering all of the relevant factors, the Respondents have not established that it is appropriate or necessary to convert this application to an action at this juncture. C. The Relief Sought [ 26 ] The Respondents argue that the Applicant is seeking a wide injunction.

They point to both the Applicant’s request for a permanent injunction which extends beyond the alleged infringing materials to " “any material that infringes on the applicant’s copyright” " and to para 131 of the Applicant’s written representations, which states: ...The McGuire Affidavit does not state, nor does CBC assert, that the Respondents’ use of the specific CBC material on its own has directly harmed the public perception of CBC’s independence in any measurable way.

Rather, CBC’s chief concern is that – over time – the kind of activity engaged in by the Respondents will lead to more widespread use of CBC material in partisan political advertising by all political parties, and will negatively impact the CBC’s perceived independence and objectivity. [ 27 ] The Respondents contend that a wide injunction (codified under

section 39.1 of the Copyright Act ) is an extraordinary remedy with broad-reaching effects that warrant proceeding by way of action to ensure that the appropriate safeguards for a full and fair defence are in place. They further assert that the Applicant’s evidence does not support the harm claimed or the allegation that CPC " “intentionally and knowingly sought to maximize their improper use.” " [ 28 ] While the Applicant does not deny that it is seeking a permanent injunction, not just to restrain the use of the clips in issue, but with respect to other use by the CPC of the CBC’s copyright, they note that

section 39.1 of the Copyright Act does not form part of the relief requested and assert that it is not engaged in the application. [ 29 ] Irrespective of this debate, whether or not the Applicant is seeking a wide injunction does not mandate the manner of proceeding. Indeed, there is no requirement in the Copyright Act that a wide injunction, even if sought, must only proceed by way of action. The fact that this case may be one of first instance and may hold some precedential value is not sufficient of itself to justify conversion: SODRAC v.

Hotel des encans de Montreal Inc ., 2007 FC 604 at para 19 . [ 30 ] The Respondents’ arguments regarding the state of the evidence is also not persuasive, particularly as further documents will be provided as a result of requests made in the Directions to Attend and cross-examinations have not yet taken place. [ 31 ] The onus is on the Applicant to provide sufficient support for the relief they are seeking. If they cannot make out the grounds that are required for a permanent injunction, they bear the risk of not obtaining the relief requested. D.

The Asserted Complexity of the Issues of Copyright Ownership, Substantiality and Fair Dealing

(1) Copyright Ownership [ 32 ] The Applicant claims copyright ownership in six works that they allege are infringed. The Respondents assert that the issue of ownership is complex because the works are audiovisual and the determination of the author and first owner is complicated as there are a large number of contributors to the work, including screen writers, directors, editors, videographers, and others.

They assert that the relationship between the contributors and the producer must be examined to determine ownership, but that the evidence produced through the application process is insufficient to evaluate this. [ 33 ] The Applicant opposes the suggestion that copyright ownership is complex. It relies on the presumption of copyright and ownership in

section 34.1 of the Copyright Act , which states:

" 34.1

(1) In any civil proceedings taken under this Act in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff to it, " " " " 34.1

(1) Dans toute procédure civile engagée en vertu de la présente loi où le défendeur conteste l’existence du droit d’auteur ou la qualité du demandeur : " " (

a) copyright shall be presumed, unless the contrary is proved, to subsist in the work, performer’s performance, sound recording or communication signal, as the case may be; and " " " "

a) l’oeuvre, la prestation, l’enregistrement sonore ou le signal de communication, selon le cas, est, jusqu’à preuve contraire, présumé être protégé par le droit d’auteur; " " (

b) the author, performer, maker or broadcaster, as the case may be, shall, unless the contrary is proved, be presumed to be the owner of the copyright " " " "

b) l’auteur, l’artiste-interprète, le producteur ou le radiodiffuseur, selon le cas, est, jusqu’à preuve contraire, réputé être titulaire de ce droit d’auteur. " " Where no grant registered " " " " Aucun enregistrement " "

(2) Where any matter referred to in subsection (1) is at issue and no assignment of the copyright, or licence granting an interest in the copyright, has been registered under this Act, " " " "

(2) Dans toute contestation de cette nature, lorsque aucun acte de cession du droit d’auteur ni aucune licence concédant un intérêt dans le droit d’auteur n’a été enregistré sous l’autorité de la présente loi : " " " " ... " " ... " " " " (

b) if " " (

i) no name is so printed or indicated, or if the name so printed or indicated is not the true name of the author, performer, maker or broadcaster or the name by which that person is commonly known, and " " (ii) a name purporting to be that of the publisher or owner of the work, performer’s performance, sound recording or communication signal is printed or otherwise indicated thereon in the usual manner, " " the person whose name is printed or indicated as described in subparagraph (ii) shall, unless the contrary is proved, be presumed to be the owner of the copyright in question; and " " " "

b) si aucun nom n’est imprimé ou indiqué de cette façon, ou si le nom ainsi imprimé ou indiqué n’est pas le véritable nom de l’auteur, de l’artiste-interprète, du producteur ou du radiodiffuseur, selon le cas, ou le nom sous lequel il est généralement connu, et si un nom paraissant être celui de l’éditeur ou du titulaire du droit d’auteur y est imprimé ou autrement indiqué de la manière habituelle, la personne dont le nom est ainsi imprimé ou indiqué est, jusqu’à preuve contraire, présumée être le titulaire du droit d’auteur en question; " " (

c) if, on a cinematographic work, a name purporting to be that of the maker of the cinematographic work appears in the usual manner, the person so named shall, unless the contrary is proved, be presumed to be the maker of the cinematographic work. " " " "

c) si un nom paraissant être celui du producteur d’une oeuvre cinématographique y est indiqué de la manière habituelle, cette personne est présumée, jusqu’à preuve contraire, être le producteur de l’oeuvre. " [ 34 ] The Applicant argues that the presumption is intended to streamline the proceedings. [ 35 ] The Respondents contend that

section 34.1 does not apply to the works in issue and that without proper evidence they will be unfairly limited in their ability to prove that the CBC does not own copyright. [ 36 ] The dispute between the parties turns on the

interpretation to be given to

section 34.1, which is an issue of law better left for the Hearings Judge. The issue before me is one of process, and whether the evidence and procedural mechanisms available through the application process will be sufficient to allow the Respondents to mount a fair defence. [ 37 ] In this case, I am not convinced based on the evidence filed on the motion, the evidence submitted in the application, and the further productions to be forthcoming, that this evidence, together with cross-examination, will be insufficient to allow the Respondents to address the issue of ownership.

[ 38 ] Irrespective of whether

section 34.1 applies, the McGuire Affidavit speaks to the issue of copyright and the creation of the works asserted. While Ms. McGuire indicates that approximately 160 people were involved in the production of the Leaders Debates, she notes that some 130 worked for CBC and attaches various documents relating to the development of the Leaders Debate material. The Applicant will also be producing contracts relating to the development and alleged copyright in the Leaders Debate and further documents on ownership.

The veracity of the statements relating to copyright and the creation of the works, and the details relating to additional documents produced can be tested on cross-examination. [ 39 ] If it is shown after cross-examination that there is insufficient evidence to establish ownership of copyright, this can be raised in the Respondents’ arguments on the merits. Mere speculation as to the possibility that there might be an issue with the chain of title is not a basis to convert the application to an action.

(2) Substantiality [ 40 ] In this application, the CBC claims that the Respondents copied substantial parts of six of its audiovisual works through nine impugned uses. Whether each of these uses is an infringement requires a qualitative assessment: Cinar Corporation v. Robinson , 2013 SCC 73 at para 26 ( " “ Cinar ” " ). [ 41 ] The Respondents’ primary complaint is that the Applicant did not provide a complete copy of its works to allow a qualitative assessment to be conducted to determine if substantial infringement has occurred.

However, in recent correspondence between the parties, the Applicant confirmed its agreement to provide full copies of all works. This agreement answers this evidentiary concern. [ 42 ] The Respondents further argue that even with the full program materials the application process does not allow it to " “meaningfully engage” " with the works to test the Applicant’s evidence as to what skill and judgment was involved in their creation; I disagree.

The McGuire Affidavit speaks directly to the issue of skill and judgment; the Respondents will have an opportunity to test this evidence on cross-examination. [ 43 ] As to the asserted complexity, I agree with the Applicant; the facts relating to substantiality are more straightforward than those in Cinar , which involved an allegation of infringement based on the use of common elements. In this case, the asserted infringement is a reproduction of a portion of the CBC’s alleged work.

An analysis based on direct and literal copying is far simpler than one based on common elements: Canadian Copyright Licensing Agency (Access Copyright) v. Canada , 2018 FCA 58 at paras 124-125 . This is not the first case where a qualitative analysis was done by application on affidavit evidence: Warman v. Fournier , 2012 FC 803 at paras 23-28 ; Maltz v. Witterick , 2016 FC 524 at para 46 . I am not convinced that the issue of substantiality is so complex that the application process would be insufficient.

(3) Fair Dealing [ 44 ] The Respondents raise two concerns relating to the issue of fair dealing, neither of which in my view support conversion of the application. [ 45 ] First, they argue that there is insufficient evidence produced by the Applicant to address the public perception of the dealing and the alleged harm to CBC as relevant to one of the arms of the fair dealing analysis.

They rely on the Corbin Affidavit, filed with their motion materials, for the proposition that CBC is in possession of information that is required to conduct a scientific analysis of the public’s perception, but has not produced such information in its affidavits. [ 46 ] Second, the Respondents argue that the fair dealing exception relies heavily on the evidence contained in the Hann Affidavit. On the basis of the objections made to the Hann Affidavit, they assert that Mr.

Hann must be given the opportunity to testify in order for the Court to properly assess his credibility. [ 47 ] With respect to the Applicant’s evidence, the Respondents will be able to explore questions relating to public perception and damage during cross-examination of Ms. McGuire. The Applicant has agreed to provide further documents on this issue relating to requests made in the Direction to Attend, with other requests to be considered under Rule 94(2). The Applicant has also agreed to treat Ms. McGuire as if she were still an employee for the purposes of any undertakings taken during her examination.

If information is refused on cross-examination and the judge hearing the application determines the information to be relevant, an adverse inference may be drawn. Should there be insufficient information produced by the Applicant, this can be a factor relied upon by the Respondents in their argument on the merits. [ 48 ] The Respondents’ concern with the challenges raised to the Hann Affidavit is also not an appropriate reason to order conversion.

As noted by the Applicant, the objections to the Hann Affidavit relate to admissibility and hearsay issues with parts of his affidavit rather than his credibility as an affiant. The Court is equipped to handle these issues on a paper record. Moreover, it is noted that the nature of the evidence and number of affidavits filed by the Respondents was entirely within the Respondents’ discretion.

If there are admissibility issues with the evidence submitted, the Respondents must suffer the consequences. [ 49 ] The Respondents argue that there has been turnover in personnel at the CPC since the election and that they could not compel individuals who are no longer employees to submit an affidavit, but could issue subpoenas to such witnesses for trial. The problem with this argument is that it is based on speculation. The Respondents have not pointed to any witnesses they could not put forward in the application that they would subpoena for trial. The only additional evidence raised is that of Dr.

Ruth Corbin, an expert, whose evidence submitted on this motion could have been put forward at first instance if the Respondents had chosen to do so. E. The Procedural Safeguards Available [ 50 ] In addition to the issues in the application, the Respondents have not established that the steps already in place within the application process are insufficient.

[ 51 ] In this case, the Applicant has produced an affidavit from Ms. McGuire, the Editor-in-Chief and General Manager of CBC News during the relevant period. Ms. McGuire had oversight responsibilities for the programs from which the clips were taken and had a lead role in the CBC’s involvement in the 2019 Leaders Debate. [ 52 ] The Respondents will have the ability to cross-examine Ms.

McGuire not only on the information set out in her affidavit, but also on matters upon which she can be fairly expected to have knowledge that relate to the issues in the proceeding upon which her affidavit touches: Sierra Club of Canada v. Canada (Minister of Finance) , 1998 CarswellNat 2273 at para 9 ; Stanfield v. Canada (Minister of National Revenue) , 2004 FC 584 at para 24 . Further, the Applicant has confirmed that they are prepared to be bound by any undertakings given at Ms. McGuire’s cross-examination irrespective of the fact that she is no longer a CBC employee.

While cross- examination is limited to the affiant’s personal knowledge ( Autodata Ltd . v. Autodata Solutions Co. Eyeglasses , 2004 FC 1361 at para 2 ), Ms. McGuire is clearly knowledgeable on the works and events in issue. This is not a situation where an uninformed affiant is seeking to hide behind the confines of cross-examination. [ 53 ] The Respondents were also invited to ask for further productions if they considered there to be evidentiary gaps in the evidence; however, they chose not to do so until recently.

The Applicant has indicated that they will provide additional productions based on requests made in the Respondents’ Direction to Attend. Further requests are also pending to be considered under Rule 94(2). [ 54 ] The Respondents have also had full opportunity to provide their own evidence and raised no issue in advance of submitting this evidence of being unable to respond. The Applicant will have the opportunity to test the evidence provided by Mr.

Hann by conducting a cross-examination on his affidavit. [ 55 ] To the extent any party is of the view that credibility remains a key issue after cross-examinations are complete, an application under Rule 316 can be made to introduce viva voce evidence at the hearing: BBM at para 23. [ 56 ] In my opinion, the general scheme of evidence provided under the rules governing an application is sufficient to allow the Respondents to properly defend the application. F.

Timing [ 57 ] In addition to the relief sought, the nature of the issues raised, and the safeguards inherent in the application process, the timing of the proceeding does not favour conversion. [ 58 ] This case has been ongoing for more than a year and is only months away from hearing. The arguments raised by the Respondents stem primarily from the McGuire affidavit, which the Respondents have had in their possession since December 2019, including before abandoning the first motion for conversion.

Had the Respondents wished to pursue its concerns with the McGuire Affidavit they should have done so earlier, not in the remaining few months before hearing. [ 59 ] Subsection 34(4) of the Copyright Act provides that if a party choses to proceed with their copyright infringement proceeding by way of application that such application be " “heard and determined without delay and in a

summary way” " . [ 60 ] In this case, the Respondents’ request would serve to bring the proceeding back to square one, with the filing of a statement of defence to reframe the issues in the proceeding. The harsh delay and costs associated with conversion cannot be justified based on the evidence that has been filed and in view of the additional documents and cross-examination that remains available to the Respondents through the application process. IV.

Alternative Relief [ 61 ] With respect to the alternative relief claimed, for the same reasons set out above with respect to the timing of this request, the request for additional time and for a without prejudice order will not be granted. [ 62 ] The Respondents have also requested leave to file further and other affidavit evidence pursuant to Rule 312 of the Federal Courts Rules. [ 63 ] In order to grant leave under Rule 312, a party must show that the evidence sought to be adduced:

a) will assist the Court;

b) will not cause substantial or serious prejudice to the other party;

c) will serve the interests of justice; and

d) was not available earlier: Atlantic Engraving Ltd . v. LaPointe Rosenstein 2002 FCA 503 ; Pfizer Canada Inc. v. Canada (Minister of Health) , 2006 FC 984 paras 18-21 . [ 64 ] The analysis to be conducted under Rule 312 necessarily turns on consideration of the evidence that is proposed to be filed. [ 65 ] In response to questioning from the Court at the hearing of the motion, the Respondents clarified that the additional evidence sought to be introduced is evidence from Dr. Corbin in line with the analysis she proposed in her evidence on the motion. [ 66 ] At this stage, the full scope of Dr.

Corbin’s proposed evidence is not before the Court. Without greater clarity as to the specifics of that evidence, the Court is unable to properly consider the factors under the Rule 312 analysis, most notably whether the evidence would assist the Court. The request for leave accordingly cannot be granted. V. Costs [ 67 ] The parties each gave submissions on the issue of costs and agreed that costs should be awarded in any event of the cause. Their bills of costs followed the Tariff calculation. The Respondents claimed $4,950 in costs, relying on column IV, while the Applicant

claimed $2,881.50 based on column IV (if they were successful) and $2,203.50 based on column III if the Respondents succeeded. [ 68 ] In view of the outcome of the motion and the submissions made as to costs, I will award $2,881.50 to the Applicant in any event of the cause. ORDER in T-1663-19 THIS COURT ORDERS that : 1 . The motion is dismissed. 2 . Costs are awarded to the Applicant in an amount fixed at $2,881.50, in any event of the cause.

"Angela Furlanetto" Case Management Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1663-19 STYLE OF CAUSE: CANADIAN BROADCASTING CORPORATION / SOCIÉTÉ RADIO-CANADA v CONSERVATIVE PARTY OF CANADA AND CONSERVATIVE FUND CANADA PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE AT Toronto, Ontario DATE OF HEARING: December 7, 2020 ORDER AND REASONS: CASE MANAGEMENT JUDGE FURLANETTO DATED: December 17, 2020 APPEARANCES : Andrea Gonsalves Justin Safayeni For The Applicant Casey Chisick Peter Henein Jessica Zagar For The Respondents SOLICITORS OF RECORD : Stockwoods LLP Barristers Toronto, Ontario For The Applicant

Cassels Brock & Blackwell LLP Barristers and Solicitors Toronto, Ontario For The Respondents