Date: 20120628
Docket: A-152-12
Citation: 2012 FCA 198
Present: MAINVILLE
J.A.
BETWEEN:
BCE INC., BELL CANADA and BELL MOBILITY INC.
Appellants
and
TELUS COMMUNICATIONS
COMPANY
Respondent
REASONS FOR ORDER
MAINVILLE J.A.
[1]
Within
the framework of their appeal of Broadcasting Decision CRTC 2011-765 of the
Canadian Radio-television and Telecommunications Commission (the “CRTC”) dated
December 12, 2011, the appellants (collectively referred to as “Bell”) have
brought a motion for (a) an order granting leave to present new evidence on the
appeal (the “New Evidence Order”); (b) an order protecting and maintaining the
confidentiality of certain documents to be filed by Bell during the course of
this appeal (the “Confidentiality Order”); and (c) an order nunc pro tunc
extending the timelines under Part 6 of the Federal Courts Rules,
SOR/98-106 (the “Extension Order”).
[2]
That
part of the appellant’s motion seeking a New Evidence Order was dismissed by
Sharlow J.A. on June 22, 2012 for reasons cited as 2012 FCA 191. Sharlow J.A.
also required the Registry to refer the other matters set out in the motion to
the duty judge sitting in Ottawa on June 27, 2012.
[3]
The
respondent (“Telus”) consents to the Extension Order. I agree that such an
order should be made. A consequential order is thus issued with these reasons
suspending nunc pro tunc the timelines in Part 6 of the Federal
Courts Rules as of May 25, 2012, the date of the filing of the Notice of
Appeal, to the date of this order, from which time they will resume
running.
[4]
Telus,
however, disagrees with the proposed Confidentiality Order. Its two principal
objections are (a) that the information which Bell seeks to protect is not
confidential; and (b) the proposed order is overbroad in that it restricts
Telus’ “in-house” counsel, who is its solicitor of record in this appeal, from
full access to the information.
The Confidential Nature of the
Information
[5]
Dealing
first with the confidential nature of the information, it is useful to note
that in light of the order of Sharlow J.A. dated June 22, 2012, the only
remaining information Bell is seeking to protect are its confidential Comments
dated February 24, 2011, filed with the CRTC in the proceedings leading to CRTC
Decision 2011-765, as well as its revised confidential Comments dated March 2,
2011, also filed with the CRTC in those proceedings (collectively referred to
as the “Bell Comments”).
[6]
The
Bell Comments contain details of Bell’s own market data and references to the
terms of the agreements (the “Licence Agreements”) Bell entered into with the
National Football League and the National Hockey League by which Bell Mobility
acquired the right to distribute the content from these leagues to its
subscribers, some of it on an exclusive basis. The CRTC treated these details
as confidential. The CRTC permitted Bell to file an abridged version of the
revised Bell Comments, and it only granted Telus access to the abridged
version: see paras. 13 and 14 of the Affidavit of Karen Ng sworn May 23, 2012
reproduced at pp. 13 to 18 of Bell’s motion record (the “Ng Affidavit”).
[7]
Bell consistently treats
its own market data concerning the size and value of the Canadian mobile
content market as highly confidential: Ng Affidavit at para. 10. Bell has also consistently treated the contents of the Licence Agreements as confidential,
and these are subject to non-disclosure provisions: Ng Affidavit at para. 11. Bell has submitted unchallenged affidavit evidence asserting that it would be seriously
prejudiced by the disclosure of such information. Paragraph 12 of the Ng
Affidavit reads in part as follows:
If such information about Bell’s market data and
Licence Agreements were known to other providers like TELUS, they could use
that information to take steps prejudicial to Bell, such as obtaining a
material advantage in future negotiations relating to the licensing of mobile
content. Disclosure of such information could seriously compromise Bell’s ability to compete in the future, and could also cause serious harm to Bell’s commercial relationships with the NFL and NHL…
[8]
Telus
does not challenge directly the affidavit evidence submitted by Bell in support of the Confidentiality Order. Rather, it submits that there is no evidence
that all the material alleged to be confidential concerns the size and value of
the Canadian mobile content market, and that, in any event, this information is
not an important commercial interest. I disagree.
[9]
The
Ng Affidavit clearly states that the Bell Comments contain details of Bell’s market data, and that this data could be used by Telus to obtain a material
advantage in future negotiations relating to the licensing of mobile content.
The Supreme Court of Canada has recently found, albeit in another statutory
context, “that as a matter of principle, the disclosure of information that is
not already in the public domain and that could give competitors a head start
in product development, or which they could use to their competitive advantage,
may be shown to give rise to a reasonable expectation of probable harm or
prejudice to the third party’s competitive position”: Merck Frosst Canada Ltd.
v. Canada (Health), 2012 SCC 3 at para. 220.
[10]
Subsection
39(1) of the Canadian Radio-television and Telecommunications Commission
Rules of Practice and Procedure, SOR/2010-277, adopted under the Broadcasting
Act, S.C. 1991, c. 11, provides that in broadcasting matters, a party may
designate as confidential the information referred to in paragraph 39(1)(c)
of the Telecommunications Act, S.C. 1993, c. 38. That paragraph refers
to information the disclosure of which could reasonably be expected to prejudice
the competitive position of a person or affect its contractual or other
negotiations. It was in this context that the CRTC treated the Bell Comments as
confidential. Though these provisions and the CRTC confidentiality order do not
necessarily bind this Court, they are certainly factors which may be taken into
account in deciding whether to grant a confidentiality order under Rule 151 of
the Federal Courts Rules.
[11]
For
the above reasons, I find that the details of Bell’s own market data and
references to the terms of the Licence Agreements in the Bell Comments which
were the object of the CRTC confidentiality order should also be treated as
confidential information in the appeal to this Court.
Access to the confidential
information by counsel
[12]
Bell proposes that only
the external counsel of Telus be allowed to view the confidential information.
Telus objects on the grounds that it is represented by “in-house” counsel in
this appeal and that it is unaware of any case in which a confidentiality order
extended to bar disclosure to an “in-house” counsel. Telus further agrees to
limit access to such confidential information to two “in-house” counsels.
[13]
Bell has submitted no
evidence to justify its position as to why only external counsel should be
allowed to view the confidential information. It has not stated any ground nor
made any argument as to why the “in-house” counsel of Telus should be precluded
from viewing the confidential information, subject to the terms of a
confidentiality order. Nor has it provided any authorities supporting such an
exclusion.
[14]
In
these circumstances, there is no basis on which this Court could exclude
“in-house” counsel from viewing such information under the terms of a
Confidentiality Order.
Conclusions
[15]
In
conclusion, Bell’s motion is granted in part. Two orders are issued with these
reasons: (a) an order protecting the confidentiality of Bell’s own market data
and references to the terms of the Licensing Agreements contained in the full
version of the Bell Comments, and also providing for confidential access
thereto by Telus’ two “in-house” counsel; and (b) an order suspending nunc
pro tunc the timelines in Part 6 of the Federal Courts Rules as of
May 25, 2012 to June 28, 2012, from which date they resume running.
[16]
Costs
of this motion are costs in the cause.
"Robert
M. Mainville"
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