Rovi Guides Inc v Videotron LTD, 2020 FC 596
Lafrenière J
Sana Halwani, Paul-Erik Veel, and Andrew Parley, Lenczner Slaght, for the plaintiff, Rovi Guides, Inc
Alan Macek, Bruce Stratton, and Michael Kasprowicz, DLA Piper (Canada) LLP, for the defendant, Videotron Ltd.
May 6, 2020
The trial for a patent infringement action brought by Rovi Guides, Inc. against Videotron Ltd began on March 9, 2020. The hearing proceeded as an electronic trial. After four days of evidence, the parties requested that the trial be adjourned given the measures being put in place by public health officials to curb the spread of COVID-19 and the resulting witness availability issues. The trial was adjourned.
Following the adjournment, the parties were canvassed regarding the possibility of resuming the trial in person or remotely by videoconference. The parties advised that both counsel and witnesses were available for trial. However, Videotron objected to the trial being held without the fact witnesses appearing before the judge, as was done with Rovi’s witnesses. Videotron also expressed concern about the security of the Zoom videoconference platform.
The Federal Court examined two issues: 1) whether the court should delay the trial until Videotron’s witnesses were available to attend in person; and 2) whether the trial should resume using Zoom or Microsoft Teams.
On the first issue, the court examined whether denying Videotron’s right to call witnesses in the same way afforded to Rovi was procedurally unfair. The court determined that it had the discretion to conduct a hearing via videoconference under Rule 32 of the Federal Courts Rules. The appropriateness of proceeding by videoconference depends on the circumstances of each case, and the court must weigh any prejudice that may result from videoconferencing against the general principle in Rule 3 of the Rules. The court held that any advantage Rovi may have by having witnesses testify in person was likely lost by the passage of time since the witnesses testified, and videoconferencing still allows a court to assess the credibility of a witness and allows counsel to effectively examine a witness. Given that court facilities will remain closed for the foreseeable future, ultimately the court determined that Videotron’s objection must be rejected since it would result in delaying the trial indefinitely.
On the second issue, the court confirmed that it is important to secure important documents containing sensitive commercial and financial information. The court determined that Zoom is not the perfect platform, but the majority of the issues had been fixed or patched by Zoom, and therefore trial would be conducted over Zoom. The court determined this was appropriate because the security of the platform would continue to be monitored and the protocols used by the parties during the first week of in-person trial when the trial was open to the public would continue to be implemented remotely to ensure sensitive information is protected.
In conclusion, this decision provides support for parties seeking to move forward with hearings. The message from the judge is that while videoconferencing is far from perfect, the situation will be unsatisfactory for the foreseeable future – so parties must go forward where possible and make the best of it.
Katie O’Meara is an Articling Student at Borden Ladner Gervais LLP.