Executive Summary: Key Legal and Evidentiary Issues

• Breach of multiple court confidentiality and protective orders regarding the “How It Works” document and other sensitive materials disclosed in patent litigation.

• Determination of whether MediaTube and Douglas Lloyd intentionally disclosed or threatened to disclose confidential information contrary to clear court orders.

• Consideration of whether the conduct interfered with the orderly administration of justice or impaired the authority or dignity of the Court.

• Evaluation of whether Bell Canada established a prima facie case of contempt under Rule 467 of the Federal Courts Rules.

• Analysis of the public interest in maintaining confidentiality of information disclosed under court compulsion.

• The order is procedural, requiring MediaTube and Lloyd to appear before a judge to address the contempt allegations, without a final finding of contempt or award of costs at this stage.

Facts of the case

In 2013, MediaTube Corp. and NorthVu Inc. commenced a lawsuit against Bell Canada and Bell Aliant Regional Communications, Limited Partnership, alleging that Bell’s Fibe TV service infringed Canadian Patent No. 2,339,477. During discovery, Bell produced a document called the “How It Works” document, which was designated as confidential under a protective order issued by Prothonotary Milczynski on October 2, 2014. This order limited access to confidential information, required designated representatives to be informed of the order, stated that confidential information could only be used for the proceeding, and required destruction of copies upon request, except for a single copy to be kept by outside counsel.

A trial was held in late 2016. A revised version of the “How It Works” document, still marked confidential, was filed as part of an Agreed Statement of Facts. In early 2017, the Federal Court issued Judgment and Reasons dismissing both the Plaintiffs’ claim and Bell’s counterclaim, with both confidential and public reasons issued. On December 29, 2017, MediaTube raised concerns about the confidential treatment of certain exhibits and transcripts. On January 29, 2018, MediaTube filed a motion to have these documents declared part of the public domain. The motion was dismissed, with the trial judge confirming that the documents contained confidential information about Bell’s networks and that confidentiality had been properly raised and decided at trial.

After the trial, MediaTube changed its solicitors of record and, with Bell’s consent, obtained an amended protective order on February 20, 2018. MediaTube appealed the trial decision on February 3, 2017, but the appeal was dismissed by the Federal Court of Appeal on June 11, 2019. MediaTube’s application for leave to appeal to the Supreme Court of Canada was dismissed on March 19, 2020.

On April 22, 2021, MediaTube brought another patent infringement action against Bell in the Ontario Superior Court. This action was dismissed, with the court finding it was an abuse of process to re-litigate the same issues already decided by the Federal Court. The Ontario Superior Court also issued a confidentiality and sealing order on January 14, 2022, ensuring that documents subject to confidentiality in the Federal Court would remain protected in the Ontario proceeding.

Policy terms and confidentiality orders

The proceedings were governed by several protective and confidentiality orders: the original protective order dated October 2, 2014; an amended protective order dated February 20, 2018; and a confidentiality order dated March 29, 2018. These orders specified that confidential information, including the “How It Works” document, could only be used for the litigation, limited access to designated individuals, required destruction of confidential materials upon request, and imposed ongoing confidentiality obligations after the proceeding ended.

Allegations of contempt and procedural developments

Bell Canada alleged that MediaTube and Douglas Lloyd repeatedly threatened to disclose or actually disclosed confidential information in violation of these court orders. Specific incidents cited included threats and disclosures to Bell’s Board of Directors, U.S. and Canadian regulatory agencies, media outlets, and attempts to file confidential materials publicly in court proceedings between April 2021 and June 2025. The court reviewed evidence of these actions, including correspondence and public postings, and considered whether Bell had established a prima facie case of contempt.

The court applied Rule 467 of the Federal Courts Rules, which sets out a two-stage process for contempt proceedings. The first stage requires the moving party to establish a prima facie case that contempt has been committed. The court found that Bell had provided evidence of clear court orders, actual knowledge of those orders by MediaTube and Lloyd, and intentional acts contrary to those orders.

Ruling and outcome

The court ordered that Douglas Lloyd, as representative of MediaTube and in his personal capacity, appear before a presiding judge to hear proof of the acts of contempt with which they are charged, present any defence, and address submissions on an appropriate sentence if found in contempt. The order lists specific acts, including reliance on the “How It Works” document for a new action, threats and disclosures to various parties, and failure to destroy confidential information as required. The issue of costs is reserved for determination at the future hearing of the contempt proceeding. Bell Canada and Bell Aliant Regional Communications, Limited Partnership are the successful parties in this motion, having obtained the order sought. No costs or damages were awarded at this stage; the amount, if any, will be determined at a later hearing.