Judge rejects broadcasters’ request for increased fine in set-top box case

A Federal Court of Appeal judge has dismissed an attempt by BCE Inc., Rogers Communications Inc., and Quebecor Inc. to win a greater damages payout from a seller of pre-loaded set-top boxes. In a judgment delivered on Thursday, Justice Mary Gleason rejected the appeal from the three broadcasters, who sought to increase the fine assessed to Eric Adwokat from $40,000 to $240,000, after a 2019 decision found him in contempt of a 2016 interlocutory injunction alongside his company Red Rhino Entertainment Inc. The trio of broadcasters had also sought to introduce new evidence into the proceeding: banking records from Red Rhino which the broadcasters say show the company continued to sell set-top boxes after the injunction, generating some $600,000 in gross income for the company. Gleason also rejected that request, writing that "the fresh evidence that the appellants seek to tender could have been adduced before the Federal Court had they been more diligent in their quest for it." The broadcasters had pointed to the lavish lifestyle enjoyed by Adwokat, including first class air travel and stays at expensive hotels, but did not introduce his banking records into evidence. After enumerating the ways in which the broadcasters could have obtained and introduced evidence about Adwokat's banking records in the Federal Court, Gleason concluded that the broadcasters "have failed to meet the test for acceptance of the fresh evidence because they have failed to establish the first of the prerequisites for its admission since they were not duly diligent in its pursuit." When it comes to increasing the penalty for Adwokat and Red Rhino, Gleason wrote that the Federal Court of Appeal has a duty to be somewhat deferential to the lower court. As such, Gleason wrote, "an appellate court cannot intervene simply because it might have imposed a different penalty or might have weighed the relevant factors differently." "Instead, absent an extricable error of law, intervention is only warranted where an appellate court is convinced that the penalty is demonstrably unfit or clearly unreasonable," the judgment read. There was also a dissenting opinion from Justice Nathalie Goyette, who wrote that she felt the lower court "either failed to apply the principle of deterrence or did not have, in law, the correct understanding of deterrence." Citing previous cases involving Dish Network and DirecTV, Goyette wrote that Adwokat and Red Rhino's "conduct was evasive, defiant, and egregious." "They continued to act in contempt even after the Federal Court found them guilty. In these circumstances, a fine is meaningless. The only fit sentence is incarceration." — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Paul Park at ppark@thewirereport.ca

Judge rejects broadcasters’ request for increased fine in set-top box case

Broadcast | May 19, 2023

Unlock all the Canadian telecom, broadcasting and digital media news you need.

FREE TRIAL

SUBSCRIBE

Inside The Wire Report

Information

Hill Times Publishing

Get in Touch With Us

Judge rejects broadcasters’ request for increased fine in set-top box case

Broadcast | May 19, 2023

Unlock all the Canadian telecom, broadcasting and digital media news you need.

FREE TRIAL

SUBSCRIBE

Related Stories

Telecoms testing their networks for the future of quantum connectivity

Telus’ arguments for incumbent access to wholesale regime not supported by competitors

Bell won’t participate in subsidized broadband projects if wholesale access for Big Three continues, signs agreement with CNOC

Rogers’ purchase of Bell’s MLSE stake not being challenged by Competition Bureau ‘at this time’

Reuse & Permissions

Inside The Wire Report

Information

Hill Times Publishing

Get in Touch With Us