Bell Media Inc. v. Macciacchera (Smoothstreams.tv)

Bell Media Inc. v. Macciacchera (Smoothstreams.tv)
Court (s) Database
Federal Court Decisions
Date
2023-06-07
Neutral citation
2023 FC 801
File numbers
T-1257-22
Decision Content
Date: 20230607
Docket: T-1257-22
Citation: 2023 FC 801
Ottawa, Ontario, June 7, 2023
PRESENT: Chief Justice Paul Crampton
BETWEEN:
BELL MEDIA INC.
ROGERS MEDIA INC.
COLUMBIA PICTURES INDUSTRIES, INC.
DISNEY ENTERPRISES, INC.
PARAMOUNT PICTURES CORPORATION
UNIVERSAL CITY STUDIOS LLC
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP
WARNER BROS. ENTERTAINMENT INC.
Plaintiffs
and
MARSHALL MACCIACCHERA dba SMOOTHSTREAMS.TV
ANTONIO MACCIACCHERA dba SMOOTHSTREAMS.TV
Arm Hosting Inc.
STAR HOSTING LIMITED (hONG KONG)
ROMA WORKS LIMITED (HONG KONG)
ROMA WORKS SA (pANAMA)
Defendants
REASONS FOR ORDER AND ORDER
I. Introduction [1] Those who decide when and under what circumstances they will comply with a court order essentially take the law into their own hands. That cannot be countenanced in a society governed by the rule of law.
[2] The reasons below explain the basis for my finding that the Defendant, Antonio Macciacchera, is in civil contempt of several provisions of an Anton Piller Order that forms part of a broader order issued by Justice Vanessa Rochester on June 28, 2022 (the “Rochester Interim Order” or “Interim Order”). I also explain why I am unable to conclude, beyond a reasonable doubt, that Mr. Macciacchera is in contempt of certain other provisions of that Order.
[3] Considering the family relationship between the two individual Defendants, and not out of any disrespect, they will be referred to below solely by their first names.
II. Background [4] The following is a short summary of a more detailed background provided by Justice Roger Lafrenière in connection with the Plaintiffs’ Motion to review the execution of the Rochester Interim Order and to show cause for why Marshall and the corporate Defendants should be charged with contempt of Court for breaching the Anton Piller Order: Bell Media Inc v Macciacchera (Smoothstreams.tv), 2022 FC 1139, at para 11 [Macciacchera 1].
[5] On June 17, 2022, the Plaintiffs commenced the underlying action for infringement of their copyright in a large number of entertainment works. In broad terms, the Plaintiffs allege in their Statement of Claim that the Defendants are responsible for developing, launching, operating, maintaining, promoting and selling subscriptions to unlawful Internet services. More specifically, the Plaintiffs claim that Antonio and his son, Marshall, are the key individuals behind the operation of the Smoothstreams.tv Internet Protocol Television [IPTV] service network, including smoothstreams.tv, live247.tv, streamtvnow.tv and starstreams.tv (collectively referred as the “SSTV Services”). The Plaintiffs allege that the SSTV Services provide subscribers with unauthorized access to a large number of motion pictures and live television channels that broadcast television programming for which the copyright in Canada is owned by various rights holders, including the Plaintiffs.
[6] The Plaintiffs further allege that the Defendant Roma Works Limited (Hong Kong) is the payment processor for the StarStreams TV service, and that the Defendant Star Hosting Limited (Hong Kong) is the payment processor for the StreamTVNow service.
[7] Unauthorized IPTV services typically operate on a subscription-based revenue model and usually provide access to hundreds or thousands of television stations for a cost of approximately $USD 10 to $USD 14 per month. The content that they distribute is obtained either from illegitimate sources or from legitimate sources that are then retransmitted without authorization.
[8] On June 28, 2022, Justice Rochester issued the Interim Order, which included the Anton Piller Order and a range of injunctive and other related relief requested by the Plaintiffs.
[9] Among other things, the Anton Piller Order included extensive provisions for the search, seizure and preservation of evidence and equipment related to the SSTV Services. It also required the Defendants to disclose information regarding the SSTV Services, as well as their financial and other assets. In addition, the broader Interim Order required the Plaintiffs to appoint an independent lawyer (the “ISS”) to supervise the service and execution of the Anton Piller Order. Ultimately, the ISS who provided such supervision in respect of the service and execution against Antonio was Mr. Mark Davis, a partner at the firm Cassels Brock and Blackwell LLP.[1]
[10] The Statement of Claim, the Interim Order, and redacted versions of the materials filed in support of the Plaintiffs’ Motion for the Interim Order were served on Antonio July 14, 2022 (the “Attempted Execution Date”), at approximately 8:05 a.m., by Mr. Robert Arnone of Xpera. Mr. Arnone was accompanied by Mr. Davis as well as by counsel to the Plaintiffs, Mr. Guillaume Lavoie Ste-Marie, and a videographer, Ms. Natalie Hansen. At that time, Messrs. Davis and Lavoie-Ste-Marie unsuccessfully attempted to execute the Interim Order.
[11] The following week, on July 21, 2022, Associate Judge Benoit Duchesne[2] issued an Order requiring Antonio to attend a hearing to hear proof of ten acts of contempt with which he was charged, and to present any defence that he may have to those charges (as amended, the “Duchesne Charging Order”). In addition, he ordered the Plaintiffs to file, by no later than August 18, 2022, a copy of all of the documents they intended to adduce into evidence at the contempt hearing, and to serve them upon Antonio on or before August 15, 2022.
[12] On July 28, 2022, Justice Lafrenière issued his decision on part of the Motion mentioned at paragraph 4 above. Among other things, the Order that accompanied that decision charged Marshall and the corporate Defendants with many of the same counts of contempt that were mentioned in the Duchesne Charging Order in relation to Antonio.
[13] On November 22, 2022, Justice Lafrenière issued his decision on the review of the execution of the Interim Order.[3] Ultimately, he found that the executions of the Interim Order at the residences of each of Antonio and Marshall, respectively, were lawful: Bell Media Inc v Macciacchera (Smoothstreams.tv), 2022 FC 1602, at para 106 [Macciacchera 2]. He also found that both of the ISS’s fully complied with the terms of the Interim Order and conducted themselves professionally, in a manner that protected the Defendants’ rights adequately: Macciacchera 2, at para 105.
III. Overview of the Evidence [14] The evidence in the contempt hearing before me consisted of video recordings taken by Ms. Hansen (the “Video Recordings”), testimony by Mr. Davis, and a small number of documents.
[15] The Video Recordings show that after the abovementioned materials were served on Antonio, Mr. Davis read a detailed script that he had prepared to explain the Anton Piller Order to him. They also show Antonio unsuccessfully attempting to reach his principal lawyer (Mr. Yoel Lichtblau) by telephone, and then refusing to permit Mr. Lavoie St.-Marie to explain other provisions of the Interim Order to him. Antonio explained that he did “not want to hear any more about law stuff” that he did not understand, and that he wanted to speak with his lawyer before proceeding any further: Exhibit P-6, Video #3 at 8:35. Antonio maintained that position during his interactions with Mr. Davis that lasted approximately five hours, including the extended periods of time when Mr. Davis was forced to wait outside, off Antonio’s property.
[16] During that five-hour period, the Video Recordings reflect that Antonio was able to speak with two or more lawyers, who advised him that he needed to speak with an intellectual property lawyer. Antonio explained: “They say ‘look, that’s not my field’, so I have to hire an IP lawyer. I have to phone around now and get an IP lawyer to deal with you”: Exhibit P-6, Video #9, at 00:53. Antonio reiterated that until he could find such a lawyer, he would not consent to the execution of the Anton Piller Order, he would not permit Mr. Davis or Mr. Lavoie-Ste. Marie to explain the other provisions of the Interim Order to him, he would not read the box of materials that were served upon him, and he would not consent to Mr. Davis and his colleagues remaining on his property.
[17] After Mr. Davis repeated, at approximately 1:15 p.m., that the Order provided that its execution was not to be delayed by more than two hours, he stated that he understood Antonio’s position. Mr. Davis then requested Antonio to contact him and Mr. Lavoie-Ste. Marie when Antonio had spoken with his lawyer. He then returned to his office.
[18] I will now turn to Mr. Davis’ testimony. As noted above, Mr. Davis is a partner at the firm Cassels Brock and Blackwell LLP, where he practises exclusively in the area of intellectual property law. He is also certified by the Law Society of Ontario as a specialist in patents, trademarks and copyright. He testified with respect to his role as the ISS in relation to the service and execution of the Interim Order against Antonio, including the videotaping of thereof. His testimony also included a brief overview of the coordination of that service and execution against Antonio with the simultaneous service and execution against Marshall, under the leadership of a separate ISS, Mr. Daniel Drapeau. In addition, he addressed the nine time-stamped videos that were adduced as Exhibit P-6 to this proceeding.
[19] I found Mr. Davis to be forthright, candid, succinct, and very credible. I did not have any concerns whatsoever about his testimony.
[20] With respect to the documentary evidence mentioned at paragraph 14 above, it consisted of the Rochester Interim Order, two affidavits by Mr. Davis summarizing the service and execution of that Order, Mr. Davis’ execution script, the handwritten notes Mr. Davis made during the execution, a typed version of those notes, and two e-mail messages sent by Antonio’s legal counsel (Mr. Paul Lomic) to the Plaintiffs’ counsel. As I understand it, the latter two documents were adduced as evidence of an ongoing breach of the Rochester Interim Order. This will be further discussed below.
IV. The Duchesne Charging Order [21] At an ex parte hearing on July 21, 2022, Associate Judge Duchesne heard the Motion made by the Plaintiffs pursuant to Rule 467(1) of the Federal Courts Rules, SOR/98-106 (the “Rules”). In that Motion, the Plaintiffs sought an order requiring Antonio to appear before this Court to hear proof of the acts for which he was charged with contempt and to present any defences he may have had to the charges of contempt. Following that hearing, Associate Judge Duchesne issued the Duchesne Charging Order, which is attached at Appendix 1 hereto.
[22] For the present purposes, the Duchesne Charging Order identified the following ten acts of contempt with which Antonio was charged:
i)on July 14, 2022 and since, disobeying paragraph 20 of the Order which constitutes contempt of Court under Rule 466(b) of the Rules, by refusing to provide to the independent supervising solicitor and/or to the Plaintiffs’ solicitors the technical information related to the SSTV Services and/or any other Unauthorized Subscription Services under his control;
ii)on July 14, 2022 and since, disobeying paragraph 24(a) of the Order, which constitutes contempt of Court under Rule 466(b) of the Rules, by refusing to disclose the assets, revenues, expenses and profits referred to in that paragraph;
iii)on July 14, 2022 and since, disobeying paragraph 24(b) of the Order, which constitutes contempt of Court under Rule 466(b) of the Rules, by refusing to provide all information pertaining to these assets, including by refusing to provide the documents likely to contain that information;
iv)on July 14, 2022 and since, disobeying paragraph 24(c) of the Order, which constitutes contempt of Court under Rule 466(b) of the Rules, by refusing to provide the identity and contact information of the banks, financial institutions or other service providers with which these assets are registered or through which they are controlled;
v)on July 14, 2022 and since, disobeying paragraph 25 of the Order, which constitutes contempt of Court under Rule 466(b) of the Rules, by refusing to provide his written consent to authorise banks, financial institutions or other service providers to disclose information pertaining to his assets to the independent supervising solicitor and to the Plaintiffs’ solicitors;
vi)on July 14, 2022 and since, disobeying paragraph 29 of the Order, which constitutes contempt of Court under Rule 466(b) of the Rules, by refusing to disclose the location of evidence to be preserved under the Order;
vii)on July 14, 2022 and since, disobeying paragraph 30 of the Order, which constitutes contempt of Court under Rule 466(b) of the Rules, by refusing entry to his residence and therefore failing to assist the persons enforcing the Order in accessing the evidence to be preserved under the Order;
viii)on July 14, 2022 and since, disobeying paragraph 31 of the Order, which constitutes contempt of Court under Rule 466(b) of the Rules, by refusing entry to his residence and therefore failing to deliver up the evidence to be preserved under the Order to the persons enforcing the Order;
ix)on July 14, 2022 and since, disobeying paragraph 32 of the Order, which constitutes contempt of Court under Rule 466(b) of the Rules, by refusing entry to his residence and therefore concealing evidence to be preserved under the Order;
x)on July 14, 2022 and since, disobeying paragraph 37 of the Order, which constitutes contempt of Court under Rule 466(b) of the Rules, by refusing entry to his residence and therefore failing to cooperate with the persons enforcing the Order;
V. Analysis [23] The sole issue before me is whether Antonio is in civil contempt of the Rochester Interim Order, and more specifically the ten provisions described immediately above.
[24] If an affirmative finding on this issue is made, the issue of penalty will be addressed in a separate hearing.
A. General Principles [25] The principle objective of the law of civil contempt is to foster compliance with court orders: Carey v Laiken, 2015 SCC 17, at para 30 [Carey]; Bell Canada v Adwokat, 2023 FCA 106, at para 18. This is essential to maintain public confidence in the administration of justice, support the rule of law, and ensure that “social order prevails rather than chaos”: Morasse v Nadeau-Dubois, 2016 SCC 44, at para 81 [Morasse], per Wagner CJC (dissenting on other grounds); Minister of National Revenue v Bjornstad, 2006 FC 818, at para 5; see also Canada (Human Rights Commission) v Canadian Liberty Net (CA), [1996] 1 FC 787, at 796 (CA). This is because contempt of court is “a challenge to the judicial authority whose credibility and efficiency it undermines as well as those of the administration of justice”: 9038-3746 Quebec Inc v Microsoft Corporation, 2010 FCA 151, at para 18 [Microsoft].
[26] To establish civil contempt, three elements must be established. First, the order or judgment that is alleged to have been breached must state clearly and unequivocally what should and should not be done. Where an order contains overly broad language, has an unclear meaning due to external circumstances, or omits an essential detail, the Court may find that this first element has not been established: Carey, above, at para 33. In addition, where there is ambiguity, the alleged contemnor is entitled to the most favourable interpretation of the order. However, this does not mean “that the alleged contemnor is entitled to have the courts contort the language of an order to narrow its ambit. The court will interpret the order in accordance with its ordinary meaning, taking into account its context”: Fraser Health Authority v Schmidt, 2015 BCCA 72, at para 4 [Schmidt]. Moreover, “a defendant cannot hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and of the administration of justice”: Zhang v Chau, 229 DLR (4th) 298 [QCCA], at para 32.
[27] The second element to be established is that the party alleged to be in breach must have actual knowledge of the order or judgment in question. Such knowledge can be inferred from the circumstances, and can be deemed to exist in the presence of wilful blindness: Carey, above, at para 34; Bell Canada et al v Red Rhino Entertainment Inc et al, 2019 FC 1460, at para 17 [Red Rhino 2019]; Canadian Private Copying Collective v Fuzion Technology Corp et al, 2009 FC 800, at paras 58 and 63 [CPCC].
[28] The third element to be established is that the alleged contemnor must have intentionally done the act that the order or judgment prohibits, or intentionally failed to do the act that the order or judgment compels. It is not necessary to establish “contumacious” intent, that is to say, an intention to interfere with the administration of justice or to disobey, in the sense of desiring or knowingly choosing to disobey the order or judgment in question. It will suffice to demonstrate an intentional act or omission that is in fact a breach of a clear order of which the alleged contemnor has had notice: Carey, above, at paras 29, 35, 38 and 47. Stated differently, it will suffice to demonstrate that the defendant knowingly contravened the order or judgment in question: Urus Industrial Corp v Lifegear Inc, 2005 FCA 63, at para 1.
[29] Each of the three elements of civil contempt described above must be established on the evidentiary standard of beyond a reasonable doubt: Rule 469, Federal Courts Rules, SOR/98-106, [the Rules]; Carey, above, at para 32. This standard is more onerous than proof on a balance of probabilities, but is not as high as absolute certainty. If there are alternative explanations or inferences that give rise to a doubt based on reason and common sense that is logically based upon the evidence or lack of evidence, the standard of proof beyond a reasonable doubt will not be met: R v Lifchus, [1997] 3 SCR 320, at paras 30 and 36. However, those alternative explanations or inferences must be reasonable: R v Villaroman, 2016 SCC 33, at 36 [Villaroman]. Doubts that are speculative, imaginary or frivolous in nature will not be reasonable: Villaroman, at 28 and 35-36; R v Cyr-Langlois, 2018 SCC 54, at para 15.
[30] Where the three requisite elements have been established beyond a reasonable doubt, the Court retains the discretion to decline to find an alleged contemnor in contempt.
B. Application of the Test (1) Preliminary issue: Nexus [31] At the outset of Antonio’s oral submissions before me, his counsel raised a threshold issue concerning the nexus between Antonio and several of the ten counts with which he was charged. In brief, counsel maintained that there was no evidence whatsoever tendered in the hearing before me that connected Antonio to the subject matter of the counts in question.
[32] For example, no evidence was adduced in the hearing before me that Antonio had any technical information related to SSTV Services and/or any other Unauthorized Subscription Services under his control, as set forth in charge (i) of the Duchesne Charging Order. Likewise, there was no evidence tendered in the hearing before me to establish that Antonio actually had any undisclosed assets or financial information to be preserved that was specifically required to be disclosed and delivered up, as contemplated by charges (ii), (iv), (vi) and (viii).
[33] In the particular circumstances of this case, I agree that the Plaintiffs failed to provide the evidence required to support a finding of contempt in relation to charges (i), (ii), (iv), (vi) and (viii).
[34] In paragraph 3 of the Duchesne Charging Order, the Plaintiffs were required to serve Antonio with (i) a copy of that order, and (ii) “their materials for the Contempt Hearing by no later than August 8, 2022” [emphasis added]. The latter date was subsequently changed to August 15, 2022.
[35] In the documents that were included in the Plaintiffs’ Amended Document Disclosure, dated August 15, 2022, there was no evidence linking Antonio to the subject matter of charges (i), (ii), (iv), (vi) and (viii). There was also no mention of such evidence in the “Will Say” Statements that were provided to Antonio on that date.
[36] Based on the foregoing, counsel to Antonio submitted:
We made strategic choices and we formulated our defence based on the evidence that was before us, and so in our respectful submission, it would be profoundly unfair to a fair trial to now change and say, “Actually, the evidence before you that you had to meet, the burden that you had to meet was actually something entirely different. It was a box of motion records. That’s what you were supposed to be challenging.
Transcript, at 197.
[37] I agree. Given the terms in paragraph 3 of the Duchesne Charging Order mentioned at paragraph 34 above, and given Antonio’s consequential understanding of the basis upon which the hearing before me would be conducted, it would be procedurally unfair to permit the Plaintiffs to rely on the evidence that was before Justice Rochester to demonstrate that Antonio is in contempt of the Order she issued.
[38] Another reason why it was not open to the Plaintiffs to rely on such evidence is that Rule 470 provides: “Unless the Court directs otherwise, the evidence on a motion for a contempt order, other than an order under subsection 467(1), shall be oral” [emphasis added]. Apart from paragraph 3 of the Duchesne Charging Order, the Court did not direct otherwise prior to the hearing before me.
[39] Antonio maintains that there are two other reasons why the Court, in a contempt hearing, cannot consider evidence that was adduced at the time it issued the Order in respect of which a contempt ruling is sought. Given the conclusions reached immediately above, it is not strictly necessary to address those submissions. However, I will briefly do so for the record.
[40] First, Antonio asserts that a contempt hearing is not a motion, but rather is a distinct proceeding, “akin to a criminal trial”, and separate from the civil proceeding in which the Order in question was issued. However, the only authority that he was able to identify in support of his position is Coca-Cola Ltd. v Pardhan, [1999] FCJ No 1764 [Pardhan], at paragraph 158, where Justice Allan Lutfy, as he then was, reached certain conclusions based on “the record before [him].” In the course of reaching those conclusions, he did not state or suggest that other evidence filed in connection with the underlying trademark infringement proceeding could not be considered in the contempt hearing before him.
[41] I disagree with Antonio’s position that a contempt hearing is not a motion brought within a larger proceeding, but is rather distinct proceeding, separate from the civil proceeding in which the Order that is the subject of the contempt hearing was issued.
[42] Rules 467 and 470 contemplate that contempt proceedings are brought by way of a motion. This implies that they are interlocutory proceedings, brought within the context of a larger action or application. This is confirmed by this Court’s jurisprudence, which holds that (i) contempt proceedings are part of the underlying civil proceedings from which allegations of contempt have arisen, and (ii) evidence from those civil proceedings can be relied upon in a contempt proceeding: see generally ASICS Corporation v 9153-2267 Québec Inc et al, 2017 FC 5, at paras 22–29. However, it bears underscoring that in the contempt hearing contemplated by Rule 470, documentary evidence filed in the underlying or “within” action or application can only be adduced if the Court so directs.
[43] In the present case, the underlying action is the Plaintiffs’ action for infringement of their copyright in a large number of entertainment works. The hearing that took place before Justice Rochester, and the evidence that was filed on that Motion, was “within” that underlying copyright infringement action.
[44] In the typical case, contempt proceedings have two stages, followed by a hearing to address the penalty or sentence, if a finding of contempt is made. The first stage consists of a Motion for an Order under Rule 467(1), which may be made ex parte, pursuant to Rule 467(2). If the plaintiff is successful at that stage, an Order addressing the matters described in paragraphs (a) – (c) of Rule 467(1) will be issued. The second stage is the hearing contemplated by the Order issued under Rule 467(1). The person alleged to be in contempt is required to attend that hearing. As noted above, pursuant to Rule 470, the evidence at such hearing must be oral, unless the Court otherwise directs. If the Court makes a finding of contempt, the Court ordinarily schedules a separate hearing to address the penalty: Winnicki v Canada (Human Rights Commission), 2007 FCA 52, at para 13 [Winnicki]; Bowdy’s Tree Service Ltd v Theriault International Ltd, 2019 FC 1341, at para 35; Canadian Standards Association v PS Knight Co. Ltd, 2021 FC 770, at para 69.[4]
[45] In the case at bar, the first stage of the contempt process consisted of the request for, and the granting of, the Duchesne Charging Order. The second stage comprised the hearing that occurred before me, as stipulated in the Duchesne Charging Order, and the issuance of my Order below. During that hearing, it was understood that if I ultimately found Antonio to be in contempt of any of the provisions of the Rochester Interim Order, a separate sentencing hearing would be scheduled. This process was initiated by way of the Plaintiffs’ Notice of Motion for an Order pursuant to Rule 467, dated July 15, 2022.
[46] I will observe in passing that Antonio had every opportunity to challenge the evidence that provided the basis for the issuance of the Rochester Interim Order. Although that Order was issued after an ex parte hearing, Antonio could have challenged it after it was served on him, on July 14, 2022. Despite the fact that this was explicitly stated at paragraph 18 of the Rochester Interim Order, Antonio did not avail himself of that opportunity. He also could have challenged that evidence in the review motion before Justice Lafrenière, who noted that the Plaintiffs relied on the affidavit evidence that was before Justice Rochester: Macciacchera 1, above, at para 14. A third opportunity to challenge this evidence was during the motion before Associate Judge Duchesne. Once again, Antonio did not to so. Having failed on multiple occasions to challenge the evidence that provided the basis for the issuance of the Rochester Interim Order, Antonio cannot now advance what amounts to a collateral attack on that Order: Manis v Manis, 55 OR (3d) 758, at paras 21-23 and 27 (CA); Blatherwick v Blatherwick, 2016 ONSC 2902, at paras 5-58.
[47] Antonio also submits that the evidence relied upon by the Court in issuing the Rochester Interim Order cannot be relied upon in a contempt hearing because that evidence simply met the civil standard applicable in Anton Piller Order hearings. In such hearings, a Plaintiff is required to establish a strong prima facie case: Celanese Canada Inc v Murray Demolition Corp, 2006 SCC 36, at paras 1 and 35 [“Celanese”]. That standard contemplates “a strong likelihood on the law and the evidence presented that … the applicant will ultimately be successful …”: R v Canadian Broadcasting Corp, 2018 SCC 5, at para 17. Antonio notes that this is a lower standard than the “beyond a reasonable doubt” standard applicable in contempt proceedings. The same is true for the additional requirement at the Anton Piller Order stage that a plaintiff provide “convincing evidence that the defendant has in its possession incriminating documents or things”: Celanese, above.
[48] However, this submission conflates the evidence itself with the standard upon which it is adjudged. Evidence that is relied upon to establish a strong prima facie case, or to “convince” the Court that the defendant has incriminating documents or things in its possession, may well also meet the standard of beyond a reasonable doubt. Such determinations will turn on the facts of each particular case. In the present case, the evidence that provided the basis for the issuance of the Rochester Interim Order led Justice Lafrenière to conclude that there was “an extremely strong prima facie case of copyright infringement against the Defendants”: Macciacchera, above, at para 15.
[49] Insofar as Antonio is concerned, the evidence that provided the basis for Justice Lafrenière’s conclusion was set forth in an affidavit of Andrew McGuigan, sworn on June 2, 2022. That affidavit provided detailed evidence of Antonio’s involvement in the SSTV Services. Had the Court authorized the Plaintiffs to avail themselves of that evidence, upon notice to Antonio, it may very well have assisted the Court to conclude, beyond a reasonable doubt, that Antonio had contravened one or more of the provisions of the Rochester Order that were the subject of contempt charges (i), (ii), (iv), (vi) and (viii). However, the Court provided no such authorization. Indeed, it does not appear that any request for such authorization was made. Therefore, that evidence was not admissible in the hearing before me. I will simply add for the record that no specific reference was made to that evidence in any event.
[50] In summary, for the reasons provided at paragraphs 33-37 above, I agree with Antonio’s position that it would be procedurally unfair to permit the Plaintiffs to rely on the evidence that was before Justice Rochester to demonstrate that he is in contempt of the order she issued. This is because paragraph 3 of the Duchesne Charging Order required the Plaintiffs to serve Antonio with the materials upon which they intended to rely in the contempt hearing, and those materials did not include the evidence that was before Justice Rochester. Antonio’s understanding of the basis upon which the hearing before me would be conducted was premised on the terms of that paragraph.
[51] Moreover, as discussed at paragraph 38 above, the evidence that was before Justice Rochester was documentary in nature, and the Court did not direct that it could be considered in the hearing before me, as required by Rule 470.
[52] In the absence of that evidence, there was no evidence whatsoever before me that Antonio had any of the technical information, undisclosed assets, financial information or other information that was specifically required to be disclosed, provided or delivered up, as contemplated by charges (i), (ii), (iv), (vi) and (viii) of the Duchesne Charging Order. Accordingly, I cannot conclude that those charges have been established, beyond a reasonable doubt.
[53] This is subject to the caveat that Antonio did not disclose a list of certain assets that were within the scope of the paragraph 24(a) of the Interim Order and charge (ii) of the Duchesne Charging Order, for approximately two weeks after the Attempted Execution Date. Specifically, on July 29, 2022, Antonio provided a list of those assets and certain other information falling within the scope of charge (v) (which I will address below), “in compliance with the [Interim] Order …”: Exhibit P-8. I will return to this in discussing the exercise of my discretion, in Part V.C. of these reasons.
[54] The remaining five charges ((iii), (v), (vii), (ix) and (x)) will be addressed sequentially below.
(2) The clarity of the Interim Order (a) Charge (iii) [55] In charge (iii), Antonio was charged with having:
on July 14, 2022 and since, disobey[ed] paragraph 24(b) of the [Interim] Order, which constitutes contempt of Court under Rule 466(b) of the Rules, by refusing to provide all information pertaining to these assets, including by refusing to provide the documents likely to contain that information;
[56] Given that paragraph 24(b) cross references paragraph 24(a), I will reproduce the entire paragraph 24:
24. [The Court] Orders the Defendants to disclose to the independent supervising solicitor and the Plaintiffs’ solicitors:
a)theexistenceofanyassets,revenues,expensesandprofitsderivedfrom the operationoftheSSTVServicesorotherUnauthorizedSubscriptionServices, whether located inCanadaorabroad, includingbut not limitedtobankaccount or account fromanyother institutionsorpersons thatdealin financialmatters;safety deposit boxes; investment accounts; brokerage accounts; financial instruments or otherassetswithinthecontrolofabank,financialorsimilarinstitution; cryptocurrency;andanyotherassetthatisownedby,directlyorindirectly controlled byor registeredtothe Defendants,bythemselvesor throughanyperson orentityrelatedtothemortotheSSTVServicesoranyotherUnauthorized SubscriptionServices;
b)allinformationpertainingtotheassetsidentifiedpursuanttosubparagraph(a), includingtheidentityoftheirowner,accountnumber,type,creationdate, transactionhistory,valueandbalance,includingbyprovidingalldocuments likely tocontainthisinformation,suchasfinancialrecords, bankingstatements,invoices, andother similardocuments [emphasis added];and
c)the identityand contact informationofthe bank(s),financial institution(s)or other serviceprovider(s)with which these assetsare registered or through which they arecontrolled.
[57] Antonio states that paragraphs 24(a) and 24(b) are unclear. I disagree.
[58] In support of his position, Antonio notes that the Plaintiffs and Mr. Davis, the ISS who attempted to execute the Interim Order against him, have very different interpretations of this provision. Specifically, the Plaintiffs maintain that paragraph 24(a) contains “a broad asset disclosure obligation” that was not previously challenged by Antonio: Transcript, at 159. By comparison, on cross-examination, Mr. Davis stated that the words “derived from the operation of the SSTV Services or other Unauthorized Subscription Services”, which appear in the second line of paragraph 24(a), modify everything that follows in that paragraph: Transcript, at 95-96.
[59] I accept that the disagreement between the Plaintiffs and Antonio has some bearing on whether the language of paragraph 24(a), and indirectly paragraph 24(b), is clear and unequivocal about what should and should not be done. However, ultimately, I must interpret the Interim Order “in accordance with its ordinary meaning, taking into account its context”: Schmidt, above.
[60] In my view, the use of a semi-colon to separate the various components of paragraph 24(a), together with the underlined word “or” in the following passage, makes it very clear and unequivocal that the Plaintiffs’ interpretation of that paragraph is correct:
and any other asset that is owned by, directly or indirectly controlled by or registered to the Defendants, by themselves or through any person or entity related to them or to the SSTV Services or any other Unauthorized Subscription Services;
[emphasis added]
[61] I note that Antonio’s counsel shared the Plaintiffs’ view of the broad scope of the foregoing language, when he provided a list of Antonio’s assets to the Plaintiffs, “in compliance with the [Interim Order]”, in an e-mail dated July 29, 2022. Similar language was repeated a second time, later in that e-mail: Exhibit P-8.
[62] Having regard to the foregoing, I am satisfied beyond a reasonable doubt that the language of paragraph 24(a), which is cross-referenced in paragraph 24(b), is clear and unequivocal.
[63] In refusing to comply in any way with paragraph 24(b) at the time the Plaintiffs attempted to execute the Interim Order, it is clear beyond a reasonable doubt that Antonio failed to abide by the clear terms of that provision. Although Antonio subsequently provided, on July 29, 2022, a list of his assets in compliance with that provision, he failed to provide the transaction history of the two bank accounts that he disclosed at that time. There is no evidence before me to indicate that he had provided such transaction history, which was specifically required by paragraph 24(b), before the hearing that took place before me.
[64] I will return to paragraph 24(b) and charge (iii) in my discussion of the exercise of my discretion, in part V.C. of these reasons below.
(b) Charge (v) [65] In charge (v), Antonio was charged with having:
on July 14, 2022 and since, disobey[ed] paragraph 25 of the [Interim] Order, which constitutes contempt of Court under Rule 466(b) of the Rules, by refusing to provide his written consent to authorise banks, financial institutions or other service providers to disclose information pertaining to his assets to the independent supervising solicitor and to the Plaintiffs’ solicitors;
[66] Paragraph 25 of the Interim Order states as follows:
25. [The Court] Orders the Defendants to provide their written consent, in the form of Schedule III of this Order (with the necessary modifications as appropriate), to authorize the bank(s), financial institution(s) or other financial service provider(s) identified pursuant to this Order to disclose to the [ISS] and the Plaintiffs’ solicitors all information pertaining to their assets, including but not limited to the types of information listed at subparagraph 24(b) above.
[67] The language of the foregoing provision is clear and unequivocal, beyond a reasonable doubt. Antonio does not suggest otherwise.
[68] Antonio failed to comply with paragraph 25 at the time the Plaintiffs attempted to execute the Interim Order. Although he provided, on July 29, 2022, partially complete forms of Schedule III for each of his two disclosed bank accounts, those two documents explicitly excluded the transaction history of the accounts in question. It is clear beyond a reasonable doubt that, by failing to provide that information, Antonio was in non-compliance with the clear and unequivocal terms of Paragraph 25 of the Interim Order. As noted at paragraph 63 above, there is no evidence before me that such transaction history had been provided before the time of the hearing that took place before me.
[69] Antonio maintains that I should exercise my discretion to find that he is not in contempt of paragraph 25, because the two bank accounts are shared jointly with his spouse, and there are no provisions in the Interim Order that permit him to withhold personal, non-relevant, information. I will return to this at paragraphs 113-119 below.
(c) Charge (vii) [70] In charge (vii), Antonio was charged with having:
on July 14, 2022 and since, disobeyed] paragraph 30 of the [Interim] Order, which constitutes contempt of Court under Rule 466(b) of the Rules, by refusing entry to his residence and therefore failing to assist the persons enforcing the Order in accessing the evidence to be preserved under the Order; [emphasis added]
[71] Paragraph 30 of the Interim Order states as follows:
30. [The Court] Orders the Defendants and any other person apparently in charge of the Premises to open and make available to the persons enforcing this Order any vehicle, container, safe or storage area within their possession, custody or control; open any locked doors of the Premises behind which the persons enforcing this Order have reasonable grounds to believe there may be any aforementioned property, information, documentation or equipment; provide to the persons enforcing this Order any login credentials necessary to enforce this Order; provide to the persons enforcing this Order the means necessary to decrypt any encrypted device as necessary to enforce the Order; and otherwise assist by any other means the persons enforcing this Order in accessing any aforementioned property, information, documents and equipment.
[72] The language of the foregoing provision is clear and unequivocal, beyond a reasonable doubt. Once again, Antonio does not suggest otherwise. Among other things, paragraph 30 required Antonio to assist the persons