Date: 20220527  
Docket: T-955-21  
Citation: 2022 FC 775  
Ottawa, Ontario, May 27, 2022  
PRESENT: Mr. Justice Pentney  
BETWEEN:  
ROGERS MEDIA INC.  
ROGERS COMMUNICATIONS INC.  
BCE INC.  
BELL MEDIA INC.  
CTV SPECIALTY TELEVISION  
ENTERPRISES INC.  
THE SPORTS NETWORK INC.  
LE RESEAU DES SPORTS (RDS) INC.  
GROUPE TVA INC.  
Plaintiffs  
and  
JOHN DOE 1  
JOHN DOE 2  
OTHER UNIDENTIFIED PERSONS WHO OPERATE UNAUTHORIZED  
STREAMING SERVERS PROVIDING ACCESS TO NHL LIVE GAMES IN CANADA  
Defendants  
and  
BELL CANADA  
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BRAGG COMMUNICATIONS INC. dba EASTLINK  
COGECO CONNEXION INC.  
DISTRIBUTEL COMMUNICATIONS LIMITED  
FIDO SOLUTIONS INC.  
ROGERS COMMUNICATIONS CANADA INC.  
SASKATCHEWAN TELECOMMUNICATIONS  
SHAW COMMUNICATIONS INC.  
TEKSAVYY SOLUTIONS INC.  
TELUS COMMUNICATIONS INC.  
VIDEOTRON LTD.  
Third Party Respondents  
and  
SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY  
AND PUBLIC INTEREST CLINIC  
BEANFIELD TECHNOLOGIES INC.  
Interveners  
ORDER AND REASONS  
PUBLIC VERSION  
(CONFIDENTIAL VERSION ISSUED ON MAY 27, 2022)  
I.  
Introduction  
[1]  
The Plaintiffs own copyright for live broadcasts of National Hockey League (NHL)  
games in Canada. They claim that certain unknown Defendants are unlawfully distributing these  
broadcasts to individuals in Canada, in breach of their copyright.  
[2]  
The Plaintiffs say that despite the steps they have taken thus far, the piracy continues and  
there are not any further remedies that are likely to be effective to stop it. That is because these  
Defendants hide their identities, the vast majority of their activities occur in other countries, and  
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they have adopted business practices, which make it unrealistic to stop them using the traditional  
legal processes intended to deal with copyright infringement. Because of this, the Plaintiffs say  
they cannot realistically enforce their copyright by cutting off the source of the unlawfully  
distributed copyright material.  
[3]  
Instead, the Plaintiffs seek to stop people in Canada from accessing the infringing  
content. In order to do that, they request a site blockingOrder against the named Third Party  
Respondents, who control the vast majority of access to the Internet in Canada. The purpose of  
the Order they seek is to stop Canadian customers from viewing the copyright-infringing  
broadcasts of live NHL games.  
[4]  
This case is about whether such a remedy should be granted, and if so, how to balance the  
interests involved. The relevant interests are those of the Plaintiffs, who own copyright in these  
broadcasts, the legitimate concerns of the innocent Third Party Respondents, the Internet Service  
Providers (ISPs) that will have to implement the order, as well as the interests of their customers,  
whose access to legitimate content might be inadvertently cut off. The remedy here is also of  
interest to the wider public in Canada, because of its potential scope, reach and impact.  
[5]  
The Order the Plaintiffs seek builds upon a recent precedent, in which this Court  
approved a different type of site blocking order against a business that provided access to  
programming content over the internet (Bell Media Inc v GoldTV.Biz, 2019 FC 1432 [GoldTV  
FC]). This Order was upheld on appeal by the Federal Court of Appeal (TekSavvy Solutions Inc v  
Bell Media Inc, 2021 FCA 100 [GoldTV FCA]), and on March 24, 2022, leave to appeal to the  
Supreme Court of Canada was denied (SCC File No. 39876)). The GoldTV FC order can be  
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described as a staticsite blocking order because it listed a specific number of sites to be  
blocked, and provided that new sites could only be added by order of the Court.  
[6]  
In this case, the Plaintiffs have requested a dynamicsite blocking Order, which  
involves trying to follow and block the unlawful streaming as it moves. The Plaintiffs say that  
the type of order issued in GoldTV FC would not work here because the pirates have adopted  
new measures to avoid detection and defeat site blocking, including moving their infringing  
content from site to site on a regular basis. Court approval would be impossible prior to each new  
blocking step because these efforts need to happen in real time in order to be effective.  
[7]  
The Plaintiffs say this is of particular relevance here, because most fans watch hockey  
games live, rather than recording them to watch later. This combination of factors means that  
blocking of unlawful streaming of live NHL broadcasts must happen while the broadcast is  
underway. Based on the evidence they have gathered, and experience in other countries where  
similar site-blocking orders have been issued, the Plaintiffs say that a dynamic site blocking  
Order is needed to keep up with the evolution in how online copyright piracy operates. For  
example, in this case the sites to be blocked could shift during the course of a single hockey  
broadcast. This type of dynamic blocking order has never been granted in Canada or in the  
United States. However, similar orders have been granted in the United Kingdom and Ireland, as  
well as in some European countries.  
[8]  
Some of the Third Party Respondents are prepared to consent to the Order. Others object  
on multiple grounds, opposing the grant of the injunction or objecting to the terms of the Order,  
or both. Although the objecting Third Party Respondents do not adopt identical positions, they  
advance broadly similar arguments. They say the process the Plaintiffs followed has been  
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inappropriate and unfair. They contend that the Plaintiffs have failed to prove their case. They  
argue that the Order sought would impose undue risks, practical difficulties and costs on them,  
noting that they are not accused of any wrongdoing in this matter. Finally, they submit that if any  
Order is to be imposed, the Plaintiffs must be required to indemnify them completely for the  
costs associated with compliance, including (for those that would be required to do so) any cost  
of upgrading their network infrastructure.  
[9]  
I am granting a mandatory interlocutory injunction to the Plaintiffs, although not on the  
terms they had proposed. I am satisfied that they have established a very strong prima facie case  
that the unknown Defendants are engaging in ongoing breach of their copyright in the broadcasts  
of live NHL games. I am also satisfied that the Plaintiffs will suffer irreparable harm if this is  
allowed to continue. Finally, I find that appropriate conditions can be imposed to minimize the  
risk of over-blocking of legitimate content and to reduce the burdens imposed on the innocent  
Third Party Respondents.  
[10] The concerns expressed by the Third Party Respondents and Interveners about the scope,  
reach and implications of the dynamic site blocking order sought here are valid and merit serious  
attention. In the particular circumstances of this case, however, these concerns do not tip the  
balance in favour of denying the Plaintiffs’ the relief they seek. First, by the time this decision is  
issued, the NHL playoffs will be underway, and so the number of games being played and  
broadcast is significantly reduced, and will continue to decline until only two teams are playing  
in the Stanley Cup final. Second, the Third Party Respondents will only have to block to the  
limits of their current technical capacity to do so, and they will be indemnified (to a capped  
amount) by the Plaintiffs for the costs they incur in complying with the Order. Third, the  
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Plaintiffs will retain and pay for an independent expert to verify that the IP addresses identified  
for blocking fit within the strict criteria defined in the Order, and to monitor the Third Party  
Respondent’s implementation to identify any practical difficulties they encounter. This expert  
will provide a confidential report to the Court and the parties, and later a public report will be  
released and posted on the Parties’ websites.  
[11] The dynamic blocking Order granted in this case is unprecedented in Canada. I am  
satisfied that, in the circumstances of this case, it is just and equitable to grant this relief, subject  
to the very specific terms and restrictions set out in the Order.  
[12] This case raises novel and complex legal issues. Adding to the complexity is the fact that  
the parties do not neatly line up on both sides of the question. It will be useful, therefore, to set  
out the background to the case before entering into the analysis.  
II.  
Background  
[13] To put this case into its proper context it is necessary to review several matters: (a) the  
parties and their roles in this case; (b) the NHL broadcasting rights that are the subject of the  
copyright claim; (c) the internet and online piracy; (d) how site blocking works; and (e) the  
GoldTV decisions that set the foundation for this motion.  
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A.  
The parties  
(1)  
The Plaintiffs  
[14] The Plaintiffs are Canadian entities that own and operate a number of television stations  
and online subscription services in Canada. While they broadcast a wide variety of television  
programs, the focus of this case is on live NHL games.  
[15] Rogers Media Inc. (Rogers), a fully owned subsidiary of Rogers Communications Inc.  
(Rogers Communications), owns and operates a number of television stations, which are  
distributed in Canada through broadcasting distribution undertakings (BDUs) such as Rogers’  
affiliate Rogers Communications Canada Inc. (Rogers Cable), to which Canadian customers  
subscribe for a fee.  
[16] BCE Inc. is Canada’s largest communications company. Bell Media Inc. (Bell Media) is  
a wholly owned subsidiary of BCE. Bell Media is a Canadian company that engages in  
broadcasting, among other activities. CTV Specialty Television Enterprises (CTV Television) is  
a subsidiary of Bell Media, while the specialty television stations The Sports Network (TSN) and  
Le Reseau des Sports (RDS) Inc. (RDS) are subsidiaries of CTV Television.  
[17] Bell Media owns and/or operates TSN, RDS and other television stations that it  
distributes through BDUs, such as its parent Bell Canada and its affiliate BellExpressVu (which  
together do business as Bell TV) and others. Some of its stations are also broadcast over the air  
for free.  
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[18] Groupe TVA Inc. (Groupe TVA) is a broadcaster that owns and/or operates numerous  
television stations that it distributes through several BDUs, including Groupe TVA’s affiliate  
Videotron Ltd. (Videotron). Some of its stations are also broadcast over the air for free.  
(2)  
The Third Party Respondents  
[19] The Third Party Respondents are ISPs that have two things in common. First, they  
provide the vast majority of internet access to Canadian households and businesses. Second,  
none of them are accused of any wrongdoing in this case. They are simply conduits through  
which unlawful breach of copyright is occurring.  
[20] In other respects, however, the Third Party Respondents are not a homogenous group,  
and it is important to draw distinctions both in respect of their relationship with the Plaintiffs and  
their positions in regard to this litigation. It will be convenient to distinguish between three  
groups of Third Party Respondents.  
(a)  
TiedISPs  
[21] A number of the Third Party Respondents are affiliates or wholly-owned subsidiaries of  
the Plaintiffs. Another way of describing this is that these ISPs are, or have made arrangements  
to seek to become, integrated vertically with the Plaintiff rights holders. This includes Rogers  
Cable and Fido Solutions Inc., both affiliates of Rogers; Bell Canada, an affiliate of the other  
Bell Plaintiffs; and Videotron Ltd., an affiliate of Groupe TVA Inc. and a wholly-owned  
subsidiary of Quebecor Media Inc..  
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[22] Each of these tiedISPs is also linked with BDUs that distribute the content of their  
respective affiliate Plaintiff corporations. In general terms, this reflects the phenomenon of  
convergencein the Canadian telecommunications industry (Canada Radio-Television  
Communications Commission (CRTC), Navigating Convergence: Charting Canadian  
Communications Change and Regulatory Implications, Feb. 2010).  
[23] As noted above, these ISPs have indicated their consent to the Order sought by the  
Plaintiffs. They need a court order in order to undertake the site blocking, because section 36 of  
the Telecommunications Act, SC 1993, c 38 requires ISPs to obtain the approval of the CRTC  
before taking steps to control the content or influence the meaning or purpose of  
telecommunications carried by it for the public.Absent CRTC approval or a court order, the  
ISPs would contravene section 36 of the Telecommunications Act by engaging in site blocking.  
[24] Shaw Communications Inc. (Shaw) is in a different position than the “tied” ISPs, because  
it has entered into an agreement for Rogers Communications to purchase its shares, but this  
agreement is subject to the approval of regulators. Shaw did not contest the matter at the hearing,  
and it maintains that position, and so for the moment, Shaw is best included in the category of  
“non-contesting ISPs” set out below.  
(b)  
Non-Contesting ISPs  
[25] Several of the ISPs did not actively participate in these proceedings, although some of  
them registered concerns with the terms of the proposed Order that are broadly similar to those  
expressed by the Contesting ISPs. This includes Shaw, Bragg Communications Inc. (Eastlink),  
Saskatchewan Telecommunications, and TekSavvy Solutions Inc.  
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(c)  
Contesting ISPs  
[26] Several of the ISPs contest the Plaintiff’s motion, arguing that:  
1. the procedure followed by the Plaintiffs was unfair;  
2. the Plaintiffs have not established their case, and  
3. the terms of the Order sought do not reflect the appropriate consideration of their interests  
or those of their customers.  
[27] This group of ISPs includes Cogeco Connexion Inc. (Cogeco), Distributel  
Communications Ltd. (Distributel) and Telus Communications Inc. (Telus). Telus did not take a  
position on the procedure followed by the Plaintiffs or whether the Plaintiffs had met their case  
for an injunction. Rather, Telus focused on the difficulty that it would face in implementing the  
Order and the particular form of order. The position advanced by these ISPs will be discussed in  
more detail below. In the discussion that follows, references to the arguments of the Third Party  
Respondents refer to the positions advanced by Cogeco, Distributel and/or Telus (in regard to the  
difficulty implementing the Order and its particular form), unless otherwise specified.  
(3)  
The Interveners  
[28] The Samuelson-Guusko Canadian Internet Policy & Public Interest Clinic (CIPPIC) and  
Beanfield Technologies Inc. (Beanfield) were granted leave to intervene in this proceeding by  
order dated October 13, 2021 (2021 107613). Both received leave to file written  
submissions, although Beanfield was limited to making submissions only in respect of the order.  
CIPPIC also made oral submissions during the hearing of the motion.  
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[29] CIPPIC sought to situate the case in its wider context by highlighting the interests and  
issues associated with site blocking orders within the framework of Canada’s approach to  
regulating the Internet.  
[30] Beanfield is an ISP, but it is different from the Third Party Respondents because it  
delivers its services through an independent, facility-based network. Beanfield’s submissions  
focused on ensuring that any Order granted in this case took into account the fact that not all  
ISPs operate in the same way, and that the order was limited to the situation of the ISPs directly  
subject to it.  
[31] The arguments of the interveners are discussed in more detail below.  
[32] We turn now to the copyright claim that underlies this proceeding. For all of the  
complexities of the case, the copyright claim is rather straightforward. The gravamen of  
copyright protection is control over the right to produce or reproduce the work, here the  
broadcasts of live NHL games. The Plaintiffs assert that the Defendants are infringing their  
rights by arranging for and facilitating the streaming of unauthorized copies of these works to  
viewers in Canada. To set this in its proper context, it is worthwhile examining how NHL  
broadcasting rights are allocated.  
B.  
NHL Broadcasting Rights in Canada  
[33] The NHL is a professional ice hockey league that operates in Canada and the United  
States. It is comprised of 32 teams, including seven teams based in Canada: the Montreal  
Canadiens, the Ottawa Senators, the Toronto Maple Leafs, the Winnipeg Jets, the Calgary  
Flames, the Edmonton Oilers, and the Vancouver Canucks.  
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[34] The NHL season is divided into three phases. These are the pre-season, which usually  
runs over two weeks, involving six to eight exhibition games; the regular season, which typically  
runs from early October to early April, consisting of 82 games per team; and the Stanley Cup  
Playoffs and Final, which usually run from mid-April until mid-June, and can involve between  
60 and 105 games in total. Together, these constitute the NHL season.  
[35] The broadcasters who hold the rights to particular NHL games film and produce them (by  
adding elements such as text, images, videos, and commentaries to the footage). Copyright in the  
live footage and production is then assigned from the broadcaster(s) to the NHL or to the local  
NHL team playing the game; the NHL and the teams in turn licence these rights back to the  
broadcasters.  
[36] The rights to broadcast NHL games depend on whether games are designated National  
Gamesor Regional Games.  
[37] Some NHL games between Canadian teams are designated as National Games, as are the  
Stanley Cup Playoffs and Final as well as select other events such as NHL All-Star games. All  
other games are Regional Games.  
[38] It is not necessary to describe in great detail the specific rights held by the various  
Plaintiffs. The Plaintiffs collectively hold the rights to all National and Regional Games in  
Canada, which they sometimes sublicense to other broadcasters.  
[39] Rogers holds the rights to distribute, through television broadcast and online streaming,  
all live NHL National Games broadcast in the English language in Canada. It also holds the  
rights to distribute all the Regional Games of some Canadian teams. Rogers Media sub-licenses  
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select National Games it produces for broadcast by the Canadian Broadcasting Corporation as  
well as the Aboriginal Peoples Television Network.  
[40] Rogers broadcasts the games to which it holds rights through a number of television  
stations, including the Sportsnet branded stations (Sportsnet East, Sportsnet Ontario, Sportsnet  
West and Sportsnet Pacific), as well as several conventional stations, and NHL Centre Ice (which  
provides access to out-of-market regional games). Rogers provides access to certain broadcasts  
through online services, including Sportsnet NOW and NHL Live, which Rogers operates.  
Rogers also produces several NHL-related programs, generally involving commentary that  
precedes and follows live NHL games, which it broadcasts in a similar manner.  
[41] Bell holds the exclusive rights to distribute all the Regional Games of several Canadian  
teams. It broadcasts live NHL games through its TSN-branded stations (which include TSN1,  
TSN2, TSN3, TSN4 and TSN5), as well as through its RDS-branded stations (including RDS  
and RDS2), and through their corresponding online services (TSN DIRECT and RDS DIRECT).  
Bell also produces and broadcasts several NHL-related programs, in both English and French.  
[42] Groupe TVA holds the exclusive rights to distribute select National Games in the French  
language.  
C.  
The Internet and Online Piracy  
[43] The Internet is a global network that is composed of a collection of nodesthat are  
directly or indirectly connected. Devices, including computers, smart phones and tablets, each  
constitute a separate node. Each node has a unique Internet Protocol (IP) address attached to it,  
expressed in digital form (e.g. 172.217.164.228).  
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[44] Nodes that Internet consumers typically use tend to focus on accessing content on the  
Internet. Other nodes, used by the operators of various Internet services, host and provide access  
to content. Anyone who has used the Internet to find or to share information has engaged with  
the process, but users are generally not aware of the complex routing system that connects their  
device to the source of the information and that manages the traffic between the two. Several  
components of this system, described below, are key to understanding the remedy sought here.  
[45] Users typically do not use the IP address associated with any particular node. Instead,  
they rely on the Domain Name System (DNS) that bridges the gap between IP addresses and  
domains (e.g., www.NHL.com) or subdomains (e.g., www.NHL.com/scores). The DNS system  
is essentially the Internet’s phonebook; it matches each domain name with its corresponding IP  
address. When a user attempts to connect to a recognized domain, the DNS will automatically  
point that request to the appropriate node associated with the relevant IP address. The DNS is not  
hosted on a single repository; instead, ISPs and other entities host DNS servers that store the IP  
addresses used to route the traffic.  
[46] The transfer of data on the Internet always involves two mirror acts: downloading, which  
involves the first node obtaining a copy of the data from a second node connected to the internet,  
and (simultaneously) uploading, which involves the second node transmitting the data to the first  
node connected to the Internet.  
[47] The relevant type of download for this case is streaming: successive portions of a  
temporary copy of a video broadcast are downloaded, played as the download progresses, and  
subsequently or progressively deleted from the device. The Plaintiffs provided an apt analogy:  
streaming is akin to someone reading a book by being handed a few pages at a time, with these  
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being discarded as the next pages are handed to the reader. At the end of the process, the reader  
has finished the book without the actual hard copy of the book taking up space on their  
bookshelf. One of the reasons streamed content can be viewed so quickly on a user’s device is  
that the entire broadcast is not downloaded all at once; instead, the first few segments are  
downloaded, and then the rest follow in sequence.  
[48] Unlawful streaming services require several technological components. First, a source  
feedis needed in this case, the live broadcast is captured and uploaded to be ready for  
streaming. Second, streaming infrastructureis required to distribute the pirated material to  
viewers. This involves both hardware and software components, including one or more  
streaming serversand a streaming platform.  
[49] Many legal streaming services provide subscribers access to copyright material that the  
streaming service has obtained under licence. Netflix is an example. However, many illegal  
streaming sites or platforms provide access to pirated material.  
[50] Two types of illegal streaming platforms are commonly available: (i) open web piracy  
sites that are typically free and publicly available, which derive their revenues from advertising,  
and (ii) unauthorized subscription services that typically provide a higher quality copy of the  
pirated material as well as easier access to subscribers. Subscriptions to unauthorized  
subscription services are generally much cheaper than the fees for the services provided by the  
ISPs, because the pirates do not pay any licencing fees or incur any production costs.  
[51] As discussed above, streaming involves breaking a video (or audio) file down into small  
media files, referred to as segments (the pagesreferred to in the Plaintiffs’ analogy). All of  
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these segments can be located on a single Streaming Server or duplicated and distributed across  
multiple different Streaming Servers within the Streaming Infrastructure. One advantage of  
distributing pirated material in this way is that segments can be provided to the end user in the  
most efficient means possible, to avoid overloading one component which could cause delays or  
interruptions.  
[52] The evidence shows that while a streaming platform can be operated by the same pirate  
as the streaming infrastructure, in most cases they are not. A single streaming infrastructure,  
however, can be accessed by a number of different streaming platforms.  
[53] The end user whether seeking legitimate access or unlawful streaming content - is  
typically unaware of how the information is routed between the source and their device.  
However, a key element in this case is the ISPs’ capacity to identify and block users’ access to  
streaming platforms that are unlawfully streaming copyright-infringing content, and thus a brief  
description of how site-blocking works is in order. This requires, first, a further description of  
how traffic is routed from the customer through the ISP to the Internet.  
[54] ISPs provide access to the Internet over several different types of connections. The  
section of the infrastructure that connects to the residential customer is referred to as the last-  
mileconnection. In Canada, there are generally two types of ISPs: those that own the last-mile  
infrastructure (referred to as facilities-based providersor common carriers), and those that  
lease the last-mile infrastructure (known as resellers).  
[55] At a high level, the infrastructure ISPs use to connect customers to the Internet involves  
four elements:  
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1. Customer equipment often a home router, that connects various devices in the home to  
the network;  
2. Last-mile/access loop the last-mile connection from the customer’s residence to the  
access/transportation network owned or leased by the ISP;  
3. The access/transportation network the system of routers that aggregate and route the  
traffic received from the last-mile/access loops and transport that traffic onwards to the  
core network;  
4. The core network which contains a further set of routers that aggregate and route the  
traffic to and from multiple access/transportation networks. This network includes the  
DNS servers and other high-level service infrastructures that are essential to the  
functioning of the Internet as a system of systems.  
[56] An ISP’s core network then connects to the Internet, which itself is a system comprised  
of a series of other networks through which traffic is routed to enable the simultaneous  
downloading and uploading of information. An ISP’s infrastructure will include both aggregating  
routers and core routers. This is key because these are the focal points of the site blocking  
efforts. Although the technical process is somewhat different as between common carrier ISPs  
and reseller ISPs, the differences are not significant for the purposes of this case, because both  
types of ISPs can and do engage in blocking of certain traffic.  
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D.  
Site Blocking  
[57] As stated above, site blocking is a method used to deter or prevent access to streaming  
platforms that provide access to copyright-infringing and other types of material, and to prevent  
incoming traffic from causing problems for users or affecting the ISPs network. There are three  
main types of site-blocking approaches for ISPs:  
1. DNS blocking which disconnects the link between a domain (or subdomain) and its  
corresponding IP address in the DNS service;  
2. IP address blocking which blocks traffic to and from a specified IP address; and  
3. URL (Uniform Resource Locator) path blocking which prevents traffic to and from  
very specific locations on a website or other Internet service.  
(1)  
DNS Blocking  
[58] The DNS (domain name system) acts as a necessary bridge between a domain name and  
the corresponding IP address, and it is therefore possible for an ISP that hosts DNS servers to  
block its subscribers from accessing a particular website. Canadian common carriers and  
resellers that have DNS servers already possess the capacity to carry out this sort of blocking.  
[59] However, it is important to note that while a domain or subdomain typically points to a  
single IP address at any given time, many domains or subdomains can point to the same IP  
address because a single server can host multiple websites.  
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(2)  
IP Address Blocking  
[60] This technique focuses on the problematic IP address rather than the domain name. This  
method can be implemented at the core outer layer of an ISP’s infrastructure. It involves  
configuring the core router(s) so that they will not route the users’ traffic to a particular IP  
address. Instead, when a subscriber tries to access that address, the router will send the query to  
nowhererather than routing it to its original destination. This is referred to as blackholing”  
because the request is sent into a blackholerather than the IP address. The process also works  
in reverse, to prevent malicious content from reaching a particular subscriber’s IP address.  
[61] The evidence shows that all of the Third Party ISPs regularly use this method to secure  
their network from malicious content or activity linked with particular IP addresses. This can  
involve blocking data transfers and attacks from these IP addresses for periods of up to a few  
hours. All of the ISPs monitor their networks on a continuous basis to detect problematic traffic  
and to try to prevent them from affecting the service to other customers. One typical situation is  
known as a Distributed Denial of Service(DDOS) attack. A DDOS attack involves a  
systematic effort to overwhelm a particular customer’s internet service in order to deny them  
access. ISPs deal with such incoming attacks on a daily basis, and in some cases, this requires  
disabling a customer’s access in order to prevent the DDOS attack from taking down an entire  
node on an ISP’s system.  
[62] As will be discussed in more detail below, ISP core routers can only block a certain  
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(3)  
URL Path Blocking  
[63] URL Path blocking allows for more specific traffic blocking than the other two methods;  
it allows an ISP to deny a specific path within a domain without blocking access to other pages  
within the same domain. To return to an example used earlier, this would allow an ISP to block  
customers’ access to www.NHL.com/scores, without cutting off access to www.NHL.com or any  
other pages within that domain.  
[64] ISPs that are part of Project Cleanfeed Canada use URL blocking to prevent subscribers  
in Canada from accessing non-Canadian websites associated with child pornography. This group  
of ISPs includes Bell, Rogers, Sasktel, Shaw, Telus and Videotron. The evidence shows that Bell  
updates the list of URLs that are blocked as part of Project Cleanfeed on a daily basis.  
[65] At the time of the hearing, not all Third Party ISPs had the capacity to implement URL  
path blocking.  
E.  
The GoldTV decisions  
(1)  
GoldTV FC  
[66] As noted earlier, the Plaintiffs seek to build upon the order granted in the GoldTV FC  
case, and it will be useful to summarize that decision as well as the Court of Appeal’s ruling that  
upheld the order. Both decisions are discussed in more detail below, in the context of the analysis  
of the current parties’ specific arguments.  
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[67] In GoldTV FC, a case involving the same Plaintiffs and Third Party Respondents as the  
present matter, the Plaintiffs sought an interlocutory injunction to force the Third Party  
Respondents to block customers from accessing copyrighted broadcasts of television programs.  
The Plaintiffs filed a statement of claim against two unnamed defendants doing business as  
goldtv.bizand goldtv.ca(GoldTV). In view of the steps taken by these defendants to remain  
anonymous and avoid legal processes, the Plaintiffs also sought an interim injunction for 14  
days, as well as an interlocutory injunction. Both were granted.  
[68] Despite the issuance of these orders, some of the GoldTV services remained in operation.  
The unnamed defendants had not filed any statement of defence or otherwise participated in the  
underlying action. As a result, the Plaintiffs then sought an interlocutory mandatory injunction  
aimed at the Third Party Respondent ISPs, requiring them to block Canadian customers from  
gaining access to the unauthorized broadcasts through the GoldTV services, at a specific list of  
IP addresses and Web domain names.  
[69] Several of the Third Party Respondents consented to the order, but TekSavvy and  
Distributel objected, and both filed records before the Court. Telus also made submissions at the  
hearing. TekSavvy argued that the Court should not exercise its jurisdiction to grant the  
injunction for a number of reasons, including that Parliament had deliberately not adopted a site-  
blocking regime when it amended the Copyright Act, RSC 1985, c C-42 in 2012. It also argued  
that site-blocking fell within the specialized expertise of the CRTC, which had indicated that  
such measures should only be available in extraordinary circumstances.  
[70] TekSavvy noted that in a 2018 decision, the CRTC had rejected a request from the  
FairPlay Coalition to require ISPs to block access to websites and services engaged in copyright  
Page: 22  
piracy (Telecom Decision 2018-384). TekSavvy’s general position was that the Plaintiffs’  
request had to be considered in the broader context of the Canadian debate on site blocking then  
underway both in Parliament and before the CRTC. It urged the Court to leave it to those bodies  
to address the question.  
[71] In addition, TekSavvy argued that the Plaintiffs had not met the test to obtain a  
mandatory interlocutory injunction. A very brief summary of this aspect of the decision will  
suffice here. The Court found that it had jurisdiction to grant the requested injunction, noting that  
orders against third parties were sometimes available in Canadian law. It also noted that courts in  
the UK had granted similar orders based on both a specific legislative provision relating to online  
piracy and their more general jurisdiction to grant interlocutory relief a grant of jurisdiction  
that was broadly similar to that of the Federal Court.  
[72] The Court concluded that the Plaintiffs had met the usual three-part test for an  
interlocutory injunction.  
[73] On the first element, the Court found that the Plaintiffs had demonstrated a strong prima  
facie case of copyright infringement. Turning to the next two elements, whether the Plaintiffs  
had established irreparable harm, and where the balance of convenience lies, the Court applied  
the guidance from the UK jurisprudence in identifying and assessing the relevant considerations.  
[74] The Court found that the Plaintiffs had established irreparable harm. First, the copyright  
infringement had continued even after the interim and interlocutory injunctions were granted,  
and the evidence did not show that less intrusive means of addressing it were likely to be  
effective. Second, there was a strong prima facie case of ongoing copyright infringement and the  
Page: 23  
Defendants were unknown. The Court found that the financial impact on the Plaintiffs therefore  
constituted irreparable harm.  
[75] Turning to the third element, the Court found that the balance of convenience favoured  
the Plaintiffs. Applying the factors set out in the UK jurisprudence, described in more detail  
below, the Court was satisfied that the site-blocking order would be effective without interfering  
in customers’ access to lawful content, and that it would not impose an undue burden on the  
Third Party Respondents. The Court was also satisfied that adequate safeguards could be put in  
place to prevent abuse of the order.  
[76] The Court therefore granted the order, although it made certain amendments to the  
version proposed by the Plaintiffs. In essence, the terms of the order directed the Third Party  
Respondents to take steps to block access to a specific list that included two website domain  
names, ten subdomains and eleven IP addresses. The order could be amended on motion by any  
party, and any individual whose access was blocked could apply to vary it. Other technical  
details included in this order are discussed below in connection with the analysis of the Order  
presently requested.  
[77] Since the initial GoldTV FC decision, the order has been amended three times, by orders  
dated December 20, 2019, July 10, 2020 and November 13, 2020. When the present case was  
argued, the Plaintiffs had brought a motion to seek a further amendment, but the matter had not  
been heard.  
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(2)  
GoldTV FCA  
[78] In a decision issued on May 26, 2021, the Federal Court of Appeal dismissed the appeal  
and affirmed the order granted by Justice Gleeson. The Court of Appeal acknowledged that the  
order was unprecedented in Canada, but found that it was validly issued and should be upheld.  
[79] The Court of Appeal addressed the three main issues TekSavvy raised on the appeal,  
namely that: the Federal Court did not have the jurisdiction to award a site-blocking injunction;  
the decision below failed to grapple with the issue that the order violated freedom of expression;  
and the Federal Court should not have granted the order on the facts of the case.  
[80] On the first point, the Court of Appeal found that sections 4 and 44 of the Federal Courts  
Act, R.S.C. 1985, c. F-7, granted the Federal Court the jurisdiction to award a site-blocking  
injunction, and this was reinforced by subsection 34(1) of the Copyright Act, which includes  
injunctive relief among the panoply of remedies for copyright infringement. In support of this  
conclusion, it cited the following passage from Google Inc v Equustek Solutions Inc, 2017 SCC  
34 [Google] at paragraph 23: “[t]he powers of courts with equitable jurisdiction to grant  
injunctions are, subject to any relevant statutory restrictions, unlimited.”  
[81] The Court of Appeal rejected TekSavvy’s arguments that the rights and remedies under  
the Copyright Act are exhaustive and that Parliament’s choice to adopt a “notice and notice”  
regime instead of the notice and takedownapproach adopted in the United States indicated that  
it did not wish to grant copyright owners the more powerful remedy of site-blocking order  
against ISPs. The Court of Appeal also rejected the claim that such orders were foreclosed by  
section 36 of the Telecommunications Act because that provision guarantees net neutrality and  
Page: 25  
bars ISPs from blocking access to websites without an order from the CRTC. The Court of  
Appeal found that “the general wording of section 36… does not displace the Federal Court’s  
equitable powers of injunction, including the power to impose a site-blocking order(para 36).  
[82] On the second question, the Court of Appeal rejected the argument that the order should  
be set aside because the Federal Court failed to address the freedom of expression issues raised  
by the case. Applying the approach adopted in Google, the Court of Appeal found that it was  
not necessary for the Judge to engage in a detailed Charter rights analysis separate and distinct  
from the balance of convenience analysis that is already to be considered(para 53). The Court  
of Appeal found that the decision under appeal adequately considered the freedom of expression  
considerations.  
[83] Turning to the question of whether it was just and equitable to grant the injunction in the  
circumstances of the case, the Court of Appeal found that that there was no reversible error and  
thus upheld the decision. Once again, the details of this analysis are discussed in the next  
sections, and so it is not necessary to review them here.  
III.  
Issues  
[84] The issues in this case can be distilled to three questions:  
1. Should the interlocutory injunction be refused because the process was unfair to the Third  
Party Respondents?  
2. Have the Plaintiffs met the test to obtain a mandatory interlocutory injunction for a  
dynamic site-blocking order?  
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3. If so, on what terms should the Order be issued?  
[85] A number of other issues are nested within the second and third questions, and these will  
be discussed below.  
IV.  
A.  
Analysis  
The procedure was fair to the Third Party Respondents  
[86] The Third Party Respondents argued that the Plaintiffs pursued a deliberate strategy to  
place them at a disadvantage in responding to the motion, and urged the Court not to reward such  
behaviour. They say that there were several alternatives available to the Plaintiffs, including  
obtaining a consent order that would have applied only to the tiedISPs, or seeking the  
agreement of all of the ISPs to undertake a test of the proposed blocking system in order to  
assess its feasibility and effectiveness. The Third Party Respondents urged the Court to refuse to  
grant the relief in the absence of a good faith pre-litigation effort to pursue a commercially  
reasonable business process before involving innocent third party ISPs in costly, ostensibly  
urgent litigation.  
[87] The discussion of this point begins with a brief review of the procedural history of the  
case, followed by a summary of the arguments and then an analysis of the merits of this claim.  
Page: 27  
(1)  
Procedural History  
[88] The Plaintiffs filed a Notice of Motion seeking an interlocutory injunction that would be  
binding on the Third Party Respondents on July 7, 2021. Their Motion Record was voluminous,  
including public and confidential material, and several affidavits.  
[89] On August 17, 2021, the Court held a Case Management Conference to discuss a  
schedule and timing with the parties. The Plaintiff noted that their materials had been duly served  
on the parties, and that because the NHL season was scheduled to commence on October 2,  
2021, they said the hearing should be convened without delay.  
[90] Several of the Third Party Respondents objected, arguing that the Plaintiffs had chosen a  
strategy of serving a huge motion record during the of summer holidays, and then seeking an  
urgent hearing, because that would prejudice the Third Party Respondents who sought to oppose  
the request. The parties were directed to discuss the issue and to return to the Court with specific  
scheduling proposals. That was done by late August, and following consideration of the parties’  
respective proposals, the Court issued a scheduling order on September 14, 2021, setting out a  
timeline for the motions for leave to intervene, for filing evidence and submissions by the  
parties, and setting the matter down for hearing. The scheduling order was subsequently  
amended and two other Case Management Conferences were convened to address several other  
matters in advance of the hearing.  
[91] The matter was heard over three days commencing on November 23, 2021. At the end of  
the hearing, submissions were received from the Plaintiffs and several of the Third Party  
Respondents regarding the specific terms of a possible Order. The parties were asked to discuss  
Page: 28  
the various proposed changes to determine whether they could reach agreement on some points  
(as had been done in GoldTV FC); failing that, the Third Party ISPs were asked to return with a  
consolidated version of their proposed Order, showing where they agreed and diverged. That was  
done and a continuation of the hearing was held on January 7, 2022, to hear from the parties  
regarding their proposed changes to the Order.  
(2)  
The Parties’ Arguments  
[92] The unfairness arguments involve three related claims, connected to the strategy adopted  
by the Plaintiffs, the fact that the relief they seek will, in reality, be a final remedy, and the  
alternatives that were available to the Plaintiffs.  
[93] First, the Third Party Respondents repeat their arguments made at the August 17, 2021  
Case Management Conference: they assert that the procedure followed by the Plaintiffs was a  
deliberate strategy designed to place the responding parties in an untenable position. They argue  
that the Plaintiffs had taken many months to assemble a significant documentary record, as  
evidenced by the fact that Rogers retained a company which began to monitor for copyright  
infringement as of January 30, 2021. The Plaintiffs’ record was then served and filed in early  
summer, with a request for an urgent hearing. The Third Party Respondents note that this mirrors  
the approach the Plaintiffs followed in the GoldTV FC case, and they urge the Court not to  
sanction it.  
[94] Next, the Third Party Respondents point out that the remedy the Plaintiffs are seeking is,  
in effect, a final Order because it is highly unlikely they will ever pursue the unnamed  
defendants. This is another similarity with the GoldTV FC case, where at the time of the hearing  
Page: 29  
in this matter, the Plaintiffs were seeking to extend and make permanent the interlocutory  
injunction, while at the same time staying the underlying proceedings against the defendants in  
that matter. The Third Party Respondents argue that this reality makes the interlocutory  
injunction process unsuitable, because it denies them the usual discovery rights and other  
procedural safeguards that are part of the regular trial process.  
[95] Related to this, the Third Party Respondents submit that the novel remedy sought by the  
Plaintiffs could have been obtained, on consent, from the tied ISPswho represent  
approximately 70% of the residential retail Internet connection market in Canada. If the Plaintiffs  
had followed this approach, they could have tested the technical systems they now seek to  
impose on the Third Party Respondents, to assess their ease of use and accuracy. This would  
have also enabled the Plaintiffs to gather evidence about the effectiveness of a dynamic site  
blocking order. The Third Party Respondents contend that this would have been a fairer  
procedure that would have diminished the impact on them because it would have allowed for a  
period of testing and refinement of the dynamic blocking procedures.  
[96] Building on the last submission, the Third Party Respondents also say that the Plaintiffs  
should have proposed that the parties work together to identify feasible ways of implementing  
the novel order sought by the Plaintiffs, including by jointly developing technical solutions and  
engaging in a period of testing and validation. This approach would have enabled many of the  
Third Party Respondentsconcerns to be addressed, and would have allowed the parties to  
present a robust evidentiary record to the Court.  
[97] The Third Party Respondents ask the Court to deny the Plaintiffs the relief they seek, to  
discourage their strategy of filing voluminous materials and then pressing for an urgent hearing.  
Page: 30  
They also assert there were effective alternative approaches available that would have enabled to  
Plaintiffs to obtain most of what they seek without imposing such undue burdens on the innocent  
Third Party Respondents.  
[98] In a related but separate submission, Distributel argued that the Plaintiffs had known  
about the problem of copyright piracy for years but it waited until now to bring this motion.  
Distributel argued that this delay should be sufficient to disentitle the Plaintiffs to the  
extraordinary interlocutory relief they seek.  
[99] The Plaintiffs deny that they have followed an unfair procedure. They argue that the  
question must be understood in light of the rapidly evolving context, in particular the changes in  
the way online piracy of copyright content operates in the real world. The fact that the context  
has changed so rapidly has meant that the Plaintiffs’ approach to protecting their copyright must  
evolve to keep pace. In this case, that has meant going from earlier efforts to enforce their rights  
(see, for example: Bell Canada v 1326030, 2016 FC 612, aff’d 2017 FCA 278; Bell Canada v  
Vincent Wesley dba MtlFreeTV.com, 2016 FC 1379, and see also 2018 FC 66, 2018 FC 861; Bell  
Canada v Red Rhino Entertainment Inc., 2019 FC 1460; Bell Canada v Lackman, 2018 FCA 42),  
to seeking and obtaining a static site blocking order in 2019, and now seeking a dynamic site  
blocking order in 2021.  
[100] In response to the Third Party Respondent’s arguments, the Plaintiffs acknowledge that  
the preparation of their motion record took some time, but they say that is appropriate in light of  
the technical nature of the evidence, and the novelty of the remedy they seek. Their record was  
served in early July, and the Third Party Respondents had months to prepare their cases. The  
Plaintiffs note that several of the Third Party Respondents cross-examined the Plaintiff’s  
Page: 31  
witnesses, and that they also filed extensive evidence about their businesses and the difficulties  
associated with implementing the type of order being sought.  
[101] The Plaintiffs also argue that the alternative procedures proposed by the Third Party  
Respondents are not realistic, because an action seeking default judgment against the John Doe  
defendants would have no practical impact on anonymous offshore internet pirates who have  
taken such elaborate steps to hide their identities and evade legal processes. The Plaintiffs submit  
that they have followed the accepted procedure for seeking an interlocutory injunction, which is  
a legal remedy that is undoubtedly available to them in Canadian law.  
(3)  
Discussion  
[102] While I agree with the Third Party ISPs that the Plaintiffs could have followed a different  
approach, in the end I am not persuaded that the process as it actually unfolded was unfair to  
any of the Third Party Respondents or that it impaired their ability to mount a full answer to the  
motion.  
[103] The procedural history outlined above is a full answer to the Third Party ISPs’  
arguments. Whether the Plaintiffs could or should have followed a different, more collaborative,  
approach is not a question for the Court. Rather, the only issue is whether the Plaintiffs should be  
denied a mandatory interlocutory injunction because the process was unfair in the circumstances  
(Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54,  
56).  
[104] In this case, the Plaintiffs filed a substantial record in early July 2021. The matter was not  
heard until late November 2021, and in the intervening period, the Third Party ISPs had the  
Page: 32  
opportunity to gather and present their own evidence, and all parties had the opportunity to  
conduct cross-examination on the affidavits that were filed. All parties subsequently had the  
chance to present their submissions to the Court, and to present further detailed arguments  
regarding their respective positions on the terms of the Order that might be issued. By any  
measure, this meets that standards of procedural fairness.  
[105] It is true that the interlocutory injunction procedure does not entail the full panoply of  
procedural rights that an action followed by a trial allows. On the other hand, that procedure also  
does not involve the delay and cost associated with a full trial of a matter. In addition, none of  
the Third Party Respondents explained how the Plaintiffs could realistically have pursued the  
unnamed Defendants. As noted by Justice Locke in GoldTV FCA at paragraph 42:  
Where, in an action against an anonymous defendant, a court can  
be convinced that said defendant has and will maintain its  
anonymity and ignore an injunction against it, it would seem  
pointless and unfair to require that the plaintiff jump through  
certain hoops and wait a certain time to confirm what it already  
knows, and the court already accepts, before seeking an injunction  
against a third party.  
[106] In my view, on the evidence before the Court, these comments apply to the situation  
facing the Plaintiffs. The additional procedural avenues, and costs and delay associated with  
bringing an action to trial were not needed to ensure the process was fair to the Third Party  
Respondents. The actual proceeding in this case, as it unfolded, allowed them almost six months  
to obtain and present evidence and arguments and to test the Plaintiffs’ evidence.  
[107] Given that this case is about unlawful streaming of live NHL games, it made sense to  
time the matter so that the matter could be heard and decided during the current NHL season.  
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[108] As a final note, I observe that several of the Third Party Respondents commented on the  
terms of the proposed draft Order, and included in these submissions was a request that they be  
given a minimum of three months notice of any motion to extend any order granted. This is an  
indication of the time these parties thought would be needed to mount an adequate reply to such  
a request, and it is further confirmation that they were not unfairly prejudiced by the procedure  
followed in this case.  
[109] For all of these reasons, I cannot accept the argument of the Third Party Respondents that  
the injunction should be refused because the process was unfair to them. We turn next to the  
merits of the Plaintiff’s case.  
B.  
The Plaintiffs have met the test for an interlocutory injunction  
[110] The legal test that applies to this case was confirmed in GoldTV FCA:  
[60] The legal test applicable in a case like this was discussed in  
Google at paragraph 25:  
RJR MacDonald Inc. v. Canada (Attorney  
General), 1994 117 (SCC), [1994] 1 S.C.R.  
311 [RJR MacDonald], sets out a three-part test  
for determining whether a court should exercise its  
discretion to grant an interlocutory injunction: is  
there a serious issue to be tried; would the person  
applying for the injunction suffer irreparable harm  
if the injunction were not granted; and is the  
balance of convenience in favour of granting the  
interlocutory injunction or denying it. The  
fundamental question is whether the granting of an  
injunction is just and equitable in all of the  
circumstances of the case. This will necessarily be  
context-specific.  
[61] It is relevant here to reproduce the following comments from  
the Supreme Court in R. v. Canadian Broadcasting Corp., 2018  
Page: 34  
SCC 5, [2018] 1 S.C.R. 196, at para. 13 [CBC], after it described  
the test in RJR MacDonald:  
This general framework is, however, just that general. (Indeed,  
in RJR MacDonald, the Court identified two exceptions which  
may call for “an extensive review of the merits” at the first stage of  
the analysis.) In this case, the parties have at every level of court  
agreed that, where a mandatory interlocutory injunction is sought,  
the appropriate inquiry at the first stage of the RJR MacDonald  
test is into whether the applicants have shown a strong prima facie  
case. I note that this heightened threshold was not applied by this  
Court in upholding such an injunction in Google Inc. v. Equustek  
Solutions Inc. In Google, however, the appellant did not argue that  
the first stage of the RJR MacDonald test should be modified.  
Rather, the appellant agreed that only a “serious issue to be tried”  
needed to be shown and therefore the Court was not asked to  
consider whether a heightened threshold should apply. By contrast,  
in this case, the application by the courts below of a heightened  
threshold raises for the first time the question of just what  
threshold ought to be applied at the first stage where the applicant  
seeks a mandatory interlocutory injunction.  
[111] The fundamental question is whether it is “just and equitable in all of the circumstances”  
that an injunction should issue. This is necessarily context-specific (Google at para 25).  
[112] In GoldTV FC, the Court accepted that it was appropriate to seek guidance from relevant  
United Kingdom jurisprudence on site-blocking orders, in particular the factors set out in Cartier  
International AG v British Sky Broadcasting Ltd., [2016] EWCA Civ 658 [Cartier]. This was  
endorsed by the Federal Court of Appeal in GoldTV FCA (at paras 76-77), and so I will consider  
these principles in the analysis that follows.  
[113] The following summary of the Cartier factors borrows from GoldTV FC at paragraph 52  
and GoldTV FCA at para 74. The factors to be considered are:  
A. Necessity the extent to which the relief is necessary to  
protect the plaintiff’s rights. The relief need not be  
Page: 35  
indispensable but the court may consider whether  
alternative and less onerous measures are available;  
B. Effectiveness whether the relief sought will make  
infringing activities more difficult to achieve and  
discourage Internet users from accessing the infringing  
service;  
C. Dissuasiveness whether others not currently accessing the  
infringing service will be dissuaded from doing so;  
D. Complexity and Cost the complexity and cost of  
implementing the relief sought;  
E. Barriers to legitimate use or trade whether the relief will  
create barriers to legitimate use by unduly affecting the  
ability of users of ISP services to access information  
lawfully;  
F. Fairness whether the relief strikes a fair balance between  
fundamental rights of the parties, the third parties and the  
general public;  
G. Substitution the extent to which blocked websites may be  
replaced or substituted and whether a blocked website may  
be substituted for another infringing website; and  
H. Safeguards whether the relief sought includes measures  
that safeguard against abuse.  
[114] In the circumstances of this case and in light of the wider public policy issues raised by  
the Order sought, I find that the application of certain of these factors must be adapted to take  
into account the Canadian context regarding the regulation of the Internet.  
[115] Because of the GoldTV decisions, the parties largely agree that this is the legal  
framework that applies. They disagree, however, about whether the test has been met. In  
addition, the Third Party ISPs and CIPPIC urge caution in any reliance on jurisprudence  
developed elsewhere in light of the different legislative and policy contexts and because in  
Page: 36  
several of these other cases the ISPs either consented to, or did not oppose, the granting of the  
order.  
[116] An introductory comment regarding the discussion that follows is necessary. Some of the  
evidence presented by the parties involves highly confidential matters, relating both to the means  
by which the Plaintiffs identified the piracy and determined that blocking could be done, and also  
to the business operations and plans of the Third Party ISPs. Although I have carefully reviewed  
all of the evidence in the record, the discussion that follows will not delve into many of the  
specific details on either point, because it is not necessary to do so. This will protect  
commercially sensitive information and o avoid providing a roadmap for individuals who are  
currently or who may wish to become involved in unauthorized streaming activity.  
[117] I now return to the elements of the test for interlocutory relief.  
(1)  
Serious Issue  
[118] The Plaintiffs bear the onus of demonstrating that they have a strong prima facie case.  
This involves a more extensive review of the merits of the case than is usual in an interlocutory  
injunction proceeding. In the words of the Supreme Court of Canada in CBC: the application  
judge must be satisfied there is a strong likelihood on the law and the evidence presented that, at  
trial, the applicant will be ultimately successful in proving the allegations set out in the  
originating notice(para 17).  
[119] There is substantial evidence regarding the claim by Rogers Media that the unnamed  
Defendants are breaching its copyright in live NHL broadcasts. The Third Party ISPs dispute  
this, however, and submit that even if Rogers is found to meet the test for serious issue, the other  
Page: 37  
Plaintiffs have not filed any evidence to support their claims of copyright infringement. They  
argue that there is no basis to extrapolate from the data demonstrating infringements of Rogers’  
rights to conclude that any of the other Plaintiffs are experiencing similar infringements, and thus  
there is no basis to find that the other Plaintiffs have established a serious issue.  
[120] The Plaintiffs’ evidence shows that they hold copyright in the broadcasts of live NHL  
games, as described in the summary set out earlier. The details of the rights that each of the  
Plaintiffs hold in the live NHL broadcasts is set out in the affidavits and exhibits of their  
corporate representatives, and this issue is not in dispute, so it is not necessary to describe the  
distribution of copyright in the various broadcasts in greater detail. Having reviewed the  
evidence, I find there is no question that the various Plaintiffs hold the copyright in respect of  
virtually all broadcast distribution of live NHL games in Canada, including TV broadcasting and  
online streaming services. With this established, we turn to the evidence of copyright  
infringement.  
[121] Rogers Cable, on behalf of Rogers Communications, retained a company called Friend  
MTS Limited (FMTS) to monitor the Internet and identify sites and services providing  
unauthorized access to live streams of certain NHL live broadcasts. FMTS has provided evidence  
about similar monitoring in previous site-blocking cases in the United Kingdom, Ireland and  
Argentina. FMTS offers various technological solutions to television broadcasters and copyright  
holders to protect and enforce their rights against pirates. Its services include monitoring and  
reporting on unauthorized streams, as well as sending takedown notices and providing site  
blocking solutions.  
Page: 38  
[122] In this case, Rogers Communications asked FMTS to monitor unauthorized streams of  
live broadcasts on four television stations owned by Rogers, namely Sportsnet One, Sportsnet  
Ontario, Sportsnet West and Sportsnet Pacific, starting on or around January 30, 2021.  
[123] FMTS used various proprietary tools to identify, capture and analyze Streaming Servers  
providing unauthorized access to the monitored live NHL broadcasts in Canada in real time.  
Between January 30, 2021 and May 30, 2021, FMTS identified a total of 53,433 instances  
(referred to as incidents) where streaming servers provided unauthorized access to the live  
NHL games broadcast on the stations they monitored. Almost | | | | of these instances originated  
from streaming servers known to be associated with copyright piracy.  
[124] These incidents originated from 3,957 distinct unauthorized streaming servers, with a  
mean of 822 distinct IP addresses per week. The monitoring showed that the IP addresses of the  
unauthorized streaming servers change on average every three and a half weeks, with  
approximately half of the IP addresses appearing for only a single week. Approximately 95% of  
the Streaming Servers were physically located outside of Canada.  
[125] This is persuasive evidence that the unidentified Defendants are engaged in infringement  
of Rogers’ copyright in its broadcast of these live NHL games.  
[126] Bell and TVA filed additional evidence, including the affidavit of Steven Rogers, a  
former police officer who now provides Internet investigation and digital forensic analysis  
services. Mr. Rogers’ affidavit details his efforts to obtain access to pirated broadcasts of live  
NHL games, and to compare these with live broadcasts on one of the Plaintiff’s specialty sports  
channels. Although this evidence does not cover as long a time-frame nor as many incidents of  
Page: 39  
unlawful streaming as that of FMTS in regard to Rogers, it does demonstrate that unlawful  
streaming services are providing access to Bell and TVA (as well as Rogers) content. Mr. Rogers  
confirms that he was able to gain access to streaming services that provided access to  
unauthorized versions of the live broadcasts. He explains how easy it was for him to do this, and  
describes the quality of the pirated content, noting that there was either a very short or no delay  
in the pirated stream (as compared with the legitimate feed) and that some of the content was  
available in the same high definition format as the authorized broadcast.  
[127] In addition, affidavits were filed by senior employees of Rogers, Bell and Videotron that  
confirmed that their respective customers were accessing content on one or more of the  
unauthorized streaming platforms corresponding to the IP addresses identified by FMTS during  
its monitoring of unauthorized streaming of live NHL games. To be clear, the monitoring done  
by the Plaintiffs did not identify specific customers, but rather confirmed that at the relevant  
periods identified by FMTS, thousands of their regular internet customers were accessing  
unauthorized streams of live NHL games. Although the evidence is not entirely clear on this  
point, presumably these customers resorted to the unauthorized streaming services because their  
subscription did not give them access to the game(s) they wanted to watch.  
[128] To give a sense of the scale of the problem, Rogers’ evidence shows that between March  
16 and April 24, 2021, an average of over 20,000 Rogers Cable Internet subscribers accessed  
known illegal IPTV services on a daily basis. Between May 10 and May 23, 2021, over 43,000  
Rogers Internet subscribers accessed the unauthorized IPTV services on a daily basis. Bell  
Canada’s witness reported that during one evening when a playoff game between Montreal and  
Toronto was broadcast (a highly popular event) at least 25,000 Bell Canada Internet subscribers  
Page: 40  
accessed the unauthorized streaming services identified in the FMTS reports. Similarly,  
Videotron reports that its monitoring showed that during the broadcast of NHL live games  
between May 14, 2021 and June 1, 2021, a large number of its subscribers relied on the  
unauthorized streaming servers identified by FMTS, generating a high volume of traffic on their  
system.  
[129] Taken together, this evidence demonstrates each of the respective Plaintiffs are  
experiencing unlawful streaming of their broadcasts of live NHL games. There is no question  
that this amounts to breach of their copyright.  
[130] As noted above, the Plaintiffs hold the exclusive right to communicate to the public all  
live NHL games through TV broadcast and online streaming. Pursuant to section 3 of the  
Copyright Act, the Plaintiffs have the sole right to broadcast this content, or to authorize its  
communication to the public. Under section 27(1) of the Copyright Act, any person who  
communicates this content to the public without the owners’ consent is infringing the Plaintiff’s  
copyright.  
[131] The evidence shows that the unnamed Defendants are responsible for the unauthorized  
communication to the public in Canada of the Plaintiffs’ broadcasts of live NHL games. I agree  
with the Plaintiffs that the Defendants’ actions do not fall within the statutory exception limiting  
the liability of those who only provide the meansof telecommunication, set out in subsection  
2.4(1) of the Copyright Act. The evidence shows that the Defendants are not merely the conduit  
of the transmission of the copyright material; rather, they have pirated it and arranged for  
members of the public in Canada to gain access to it through the infrastructure that the  
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Defendants have set up. This involves deliberate and elaborate efforts involving substantial  
investments – to capture and stream the Plaintiffs’ copyright material.  
[132] In summary on this point, and going back to the governing test, I am satisfied, based on a  
careful and detailed review of the evidence, that the Plaintiffs have demonstrated a very strong  
likelihood that they would be successful at trial in establishing that the Defendants have breached  
their copyright. Indeed, the evidence demonstrates that the Defendants are breaching the  
Plaintiffs’ copyright in an ongoing and flagrant fashion.  
[133] It bears repeating that the Third Party ISPs are mere conduits and are not in any way  
involved in the activities that amount to copyright infringement. Their only involvement is that  
the unlawful streaming flows to viewers in Canada through the services they provide.  
(2)  
Irreparable Harm  
[134] The term irreparable harmrefers to the nature of the harm rather than its scope or  
reach; it is generally described as a harm that cannot adequately be compensated in damages or  
cured (RJR MacDonald at p 341). It has often been stated that this harm cannot be based on  
mere speculation; it must be established through evidence at a convincing level of particularity  
(see Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 31;  
Gateway City Church v Canada (National Revenue), 2013 FCA 126 at paras 15-16; Newbould v  
Canada (Attorney General), 2017 FCA 106 at paras 28-29). In addition, the evidence must  
demonstrate a high likelihood that the harm will occur, not that it is merely possible. This will  
obviously depend on the circumstances of each case (see the discussion in Letnes v Canada  
(Attorney General), 2020 FC 636 at paras 49-58).  
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[135] However, equitable relief must retain its necessary flexibility and it must be admitted that  
some forms of harm do not readily admit of proof, especially in interlocutory proceedings where  
speed is of the essence and the ability to prepare a complete evidentiary record is necessarily  
somewhat limited. What is required, at the end of the day, is a sound evidentiary foundation”  
for the assessment of the harm; mere assertions or speculation by an applicant will never be  
sufficient (see Vancouver Aquarium Marine Science Centre v Charbonneau, 2017 BCCA 395 at  
para 60; Ahousaht First Nation v Canada (Fisheries, Oceans and Coast Guard), 2019 FC 1116  
at paras 87-88).  
[136] In GoldTV FC, Justice Gleeson analyzed the necessity factor from Cartier under this  
branch, and this was not found to be an error by the Federal Court of Appeal. I will therefore  
follow this approach, although I acknowledge there is a degree of overlap between the  
consideration of this element and the broader balance of convenience factors.  
[137] I will review the parties’ submissions on financial harms and necessity, and then discuss  
whether the Plaintiffs have met the test for irreparable harm.  
(a)  
Financial Harm  
[138] The crux of the Plaintiffs’ argument on this ground is that they are losing subscribers and  
potential advertising revenue because of the rampant and egregious ongoing breach of their  
copyright due to the unauthorized streaming of their copyright content in live NHL games. There  
are several inter-related facets to their argument.  
[139] First, NHL hockey is very popular among Canadian viewers. NHL games are the most  
watched live sporting events in Canada, and some games can attract a very large audience. For  
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example, it is estimated that 11 million people watched game seven of the playoff series between  
Montreal and Toronto in the first round of the 2021 playoffs. Each of the Plaintiffs have invested  
significant amounts to obtain the rights to broadcast these games and continue to make ongoing  
investments to maintain the infrastructure needed to meet their customers’ needs. Their evidence  
shows that subscribers to their specialty sports channels are particularly interested in gaining  
access to live broadcasts of sporting events, in particular NHL games.  
[140] Second, because almost all NHL games are watched in real time(as opposed to other  
programming which is often recorded and accessed at different times), the Plaintiffs have had to  
invest in the infrastructure needed to meet spikes in demand for Internet services during live  
broadcasts. In addition, because subscribers cannot fast-forward through a live broadcast,  
advertisers know exactly how many viewers will be seeing their ads during live NHL games,  
making these advertising spots particularly profitable for the Plaintiffs. It also drives revenue for  
their sport-related programming broadcast just before and after NHL games.  
[141] Third, the Plaintiffs claim that ongoing unauthorized streaming of their content is causing  
an ongoing loss of customers and will permanently alter consumers’ behaviour if left unchecked.  
The Plaintiffs acknowledge that it is impossible for them to quantify with precision the number  
of subscribers they have lost (or never gained) as a result of the ongoing piracy of their content,  
but they argue that the evidence shows that piracy is a substantial problem in Canada that has an  
undeniably negative effect on them.  
[142] In addition, the Plaintiffs point to the obvious fact that the harm arises in a context where  
a large number of unidentifiable defendants have taken active steps to remain anonymous, and  
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who could be located anywhere in the world. Their chances of ever recovering any damages  
from these parties is slim, at best (GoldTV FC at para 66; GoldTV FCA, para 71).  
[143] The Plaintiffs point to a number of other decisions where unauthorized communication of  
copyright content by means of the Internet was found to constitute irreparable harm, including:  
Gold TV FC and GoldTV FCA; Bell Canada v 1326030 Ontario Inc, 2016 FC 612; Welsey  
(Mtlfreetv.com) v Bell Canada, 2017 FCA 55 at paras 3-5; and Bell Canada v Lackman, 2017 FC  
634 at para 47.  
[144] For all of these reasons, the Plaintiffs argue that they have established that they will  
suffer financial losses that amount to irreparable harm.  
[145] The Third Party ISPs contend that the Plaintiffs’ evidence falls short because they have  
not demonstrated that any piracy that is occurring is actually causing the Plaintiffs to lose  
customers or other revenue. They point out that the law sets a high bar for establishing  
irreparable harm, and argue that in this case the Plaintiffs have failed to meet it.  
[146] The Third Party Respondents do not dispute that NHL live games are widely watched in  
Canada, or that the Plaintiffs have invested a substantial amount of money to acquire the rights  
and develop the infrastructure to broadcast them. They also do not dispute that piracy is  
undesirable. Several of the Third Party Respondents attest to their collaboration on other efforts  
to stop the distribution of unlawful content on the Internet, including through their participation  
in Project CleanFeed. However, the Third Party Respondents point out that these general  
propositions fall well short of establishing irreparable harm to the standard required by the  
binding jurisprudence.  
Page: 45  
[147] In regard to the claim that the piracy of live NHL games is causing a loss of revenue, the  
Third Party Respondents submit that none of the Plaintiffs have provided any evidence that their  
advertising revenue, subscription payments or other income streams have declined because of  
piracy. They point out that there is no evidence that the advertising that runs on the Plaintiff’s  
stations is not also displayed on the illegal live streams. Therefore there is no evidence that the  
advertisers’ audience for their advertisements is reduced because of the piracy, and thus no basis  
to conclude that the Plaintiffs are losing any revenues because of the unlawful streaming.  
[148] In addition, the Third Party Respondents contend that the Plaintiffs have failed to link  
any decline in their subscriber base to the piracy of live NHL broadcasts. The evidence filed by  
the Plaintiffs is either generic relating to piracy generally, or piracy across North America or  
based on opinions expressed by witnesses that were not properly qualified as experts. The Third  
Party Respondents point out that none of the Plaintiffs conducted any surveys or took other steps  
to gather more specific evidence linking the piracy to their losses. In the absence of such  
evidence, they submit that the Plaintiffs have failed to meet an essential element of the test for a  
mandatory interlocutory injunction.  
(b)  
Necessity  
[149] This Cartier factor focuses on whether a mandatory interlocutory injunction is necessary  
to protect the Plaintiff’s rights. As summarized in GoldTV FCA (at para 52): The relief need not  
be indispensable but the court may consider whether alternative and less onerous measures are  
available.”  
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[150] The Plaintiffs argue that the order is necessary because it is the only effective and  
practical remedy available to them to stop widespread infringement on the Internet of their  
exclusive right in Canada in the NHL Live Games they acquired at the cost of billions of dollars”  
(Plaintiffs’ Factum at para 174). They rely on the evidence establishing the nature and scope of  
the piracy and the fact that the vast majority of the pirates take steps to hide their identities and  
conduct their affairs outside of Canada. They further submit that given the speed with which the  
pirates change the IP addresses associated with the unlawful streaming, it would be impractical  
to take steps to stop them by pursuing actions for copyright infringement.  
[151] The Plaintiffs note that in GoldTV FCA at para 42, the necessity of undertaking such a  
burdensome process was expressly rejected:  
Where, in an action against an anonymous defendant, a court can  
be convinced that said defendant has and will maintain its  
anonymity and ignore an injunction against it, it would seem  
pointless and unfair to require that the plaintiff jump through  
certain hoops and wait a certain time to confirm what it already  
knows, and the court already accepts, before seeking an injunction  
against a third party.  
[152] In addition, the Plaintiffs point to the efforts that they and others have taken to curb  
piracy of live NHL broadcasts.  
[153] The evidence shows since 2019, the NHL has worked with a company to send  
approximately 46,400 takedown notices regarding copyright infringements. For the 2020-2021  
NHL season, over 26,300 takedown notices had been sent, and only approximately 11% of these  
led to a timely removal of the infringing content.  
Page: 47  
[154] Rogers also asked FMTS to send takedown notices, and during the month of May 2021, it  
sent 221 notices to hosting providers, including those hosting John Doe No. 2’s unauthorized  
streaming servers and some of John Doe No. 1’s servers. As of the date of the hearing, FMTS  
had received no response to these notices.  
[155] The evidence shows the Plaintiffs also work with a third party to monitor classified  
advertising services and social media platforms to identify individuals or entities advertising  
unauthorized subscription services, and thousands of takedown requests have been issued in  
regard to such advertisements and posts. They also monitor websites that sell unauthorized  
services through major payment processing service such as PayPal, Visa and MasterCard.  
Finally, Rogers has identified and reported unauthorized streams of live NHL games available on  
social media sites such as YouTube, Facebook and Twitter, as well as links to such streams  
posted on aggregating sites such as Reddit. Hundreds of unauthorized streams have been  
reported to these websites, with limited impact.  
[156] The Plaintiffs submit that while it is difficult to quantify the effectiveness of these  
measures, the evidence before the Court shows that despite all of the enforcement efforts,  
unauthorized streaming servers providing access to high quality streams of live NHL games  
remains widespread and easily available to Canadian viewers. In addition, the Plaintiffs argue  
that the alternative measures proposed by the Third Party Respondents are speculative and  
unproven.  
[157] For all of these reasons, the Plaintiffs say the Order is necessary.  
Page: 48  
[158] The Third Party Respondents advance two arguments on this point. First, they dispute the  
Plaintiffs’ claim that the order is necessary because their earlier enforcement efforts were not  
successful to prevent piracy of their copyright material. They point to the data submitted by the  
Plaintiffs’ witness, Mr. Demetriades, which shows an overall decrease in the number of distinct  
IP addresses linked to unauthorized streaming services during the course of the monitoring  
conducted by FMTS. The Third Party Respondents claim that this evidence shows that the  
Plaintiffs’ efforts were having an effect, and thus the unprecedented order they now seek is not  
warranted.  
[159] Related to this, the Third Party ISPs say that the Plaintiffs did not conduct any assessment  
or investigation as to the security of their broadcast platforms to determine how the pirates  
acquired their streams. Yet the Plaintiffs’ own evidence shows that at least some of the footage  
being pirated is obtained from the Plaintiffslegitimate subscription services. This suggests that  
the Plaintiffs could and should have taken steps to prevent piracy through Digital Rights  
Management (DRM), including through one particular technique (steganography) that could  
have assisted the Plaintiffs in identifying the originating source(s) of the unauthorized material.  
Absent any such evidence, the Third Party ISPs contend that the Plaintiffs have failed to show  
that the Order is necessary.  
[160] Overall, the Third Party ISPs submit that the Plaintiffs have not effectively demonstrated  
that they have done everything they can to prevent piracy of NHL games, whether through  
stronger enforcement efforts using other legal remedies, or by implementing DRM measures to  
prevent unauthorized access or at a minimum to identify its source.  
Page: 49  
[161] CIPPIC did not make specific submissions on this point, but there is one particular  
argument that is worth noting here. CIPPIC submits that in light of the statutory context, the  
nature of the Plaintiffs’ evidence and the interests at stake, there needs to be a strong evidentiary  
foundation in respect of the rights of each Plaintiff.  
(c)  
Discussion  
[162] The Plaintiffs have established irreparable harm. The Plaintiffs’ evidence shows ongoing  
and substantial unlawful streaming of live NHL broadcasts over which they hold copyright.  
While there is some indication that their various previous enforcement efforts may have reduced  
this activity to some extent, there is no basis to conclude that an increased effort to enforce their  
rights through more traditional means is likely to have any substantial impact on the scale and  
scope of unlawful streaming. If anything, the more general evidence presented tends to show that  
piracy is an increasing problem.  
[163] This Court has heard many of the cases involving the Plaintiffs’ earlier efforts to enforce  
their copyright. This includes interlocutory injunctions against various parties, and in some  
instances it has escalated to motions seeking to hold parties in contempt of court for their  
deliberate and repeated flouting of the orders of the Court (see: Warner Bros Entertainment Inc.  
v White (Beast IPTV), 2021 FC 53, aff’d White (Beast IPTV) v Warner Bros, 2022 FCA 34 and  
Warner Bros Entertainment Inc. v White (Beast IPTV), 2021 FC 989). Further, the evidence  
about compliance with notices sent under the Copyright Act indicates that while some companies  
comply, others ignore the notices. In this case, the evidence shows that some of the targeted sites  
advertise to their customers that they will either ignore such notices, or that they do not expect  
any steps to be taken after they convey them to the subscriber.  
Page: 50  
[164] In the circumstances here, the damage resulting from the unauthorized streaming is  
primarily financial, and ordinarily such damages cannot amount to irreparable harm because they  
are recoverable after trial. However, in this case, as in GoldTV FC, the harm to the Plaintiffs  
arises in a context where there is a strong prima facie case of an ongoing infringement of the  
Plaintiffs’ copyright where the defendants are unknown” (para 66). The Court of Appeal found  
that this was an entirely appropriatebasis on which to find irreparable harm (para 71).  
[165] The evidence does not show with precision the number of subscribers that the Plaintiffs  
have lost, or new customers they have not been able to attract, as a direct result of the unlawful  
streaming. However, it is reasonable to infer from the evidence that this is among the reasons  
that people are either choosing to stop their subscriptions or not signing up in the first place. The  
evidence shows that copyright piracy results in harms to the Canadian broadcasting system, and  
similar harms have been recognized in other jurisdictions.  
[166] I agree with the Plaintiffs that the alternative measures proposed by the Third Party  
Respondents are, on the record before me, speculative and unproven. While the issue of DRM,  
including steganography, should be explored by all parties with regard to any future applications  
of a similar nature or any application to extend the Order here, the evidence before me does not  
support a conclusion that such measures are a viable alternative. In particular, the evidence is  
insufficient to show that implementing steganography is a realistic option for the Plaintiffs, nor  
does it demonstrate that this technique is an effective mechanism that would, in practice, allow  
the Plaintiffs to identify the source of the unlawful streams. Finally, even if such identification is  
possible, it is not clear how this would be effective in stopping the piracy.  
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[167] Ultimately, on the record before me, it is not possible to conclude that any of the  
alternatives proposed by the Third Party Respondents would be effective as a means of  
preventing the piracy.  
[168] For these reasons, I am satisfied that the Plaintiffs have established irreparable harm, and  
that the Order is necessary to stop or at least reduce the unlawful streaming of live NHL games  
over which they hold copyright.  
(3)  
Balance of Convenience  
[169] The third stage of the test requires an assessment of the balance of convenience, in order  
to identify the party which would suffer greater harm from the granting or refusal of the  
interlocutory injunction, pending a decision on the merits(CBC at para 12). The expression  
often used is “balance of inconvenience” (RJR-MacDonald at 342). At this stage of the analysis,  
wider public interest considerations arise and as will become clearer below, in my view these  
are an important consideration in this case.  
[170] As in GoldTV FC, it is convenient to organize this part of the discussion with reference to  
the Cartier factors (leaving aside necessity, which has been discussed above). That is how the  
case was argued by the parties, and the factors provide a useful means of addressing the evidence  
and arguments. In doing so, however, I add two caveats. First, I adopt the following words of  
caution from GoldTV FC:  
[54] The remaining factors will be of assistance in assessing  
balance of convenience and determining what is just and equitable  
in considering the legitimate but conflicting interests as between  
the Plaintiffs, the Third Party Respondents, and the broader public.  
I do not view the listed factors as exhaustive, nor do I view any  
Page: 52  
one factor as being determinative of the balance of convenience  
prong of the test. Each of the factors will be considered but they  
will be addressed holistically in my assessment of the balance of  
convenience.  
[171] Second, each of the factors will be considered in the order that is appropriate given the  
parties’ arguments and the circumstances of this case, rather than simply following the order that  
the court in Cartier found to be useful for its purposes. Much of the argument in this case  
revolved around the related questions of complexity and cost, and so this factor will be discussed  
first.  
[172] As will become clear below, a significant amount of the evidence and argument in this  
case focused on the elements to be discussed here, a key difference between this case and  
GoldTV FC, where it was acknowledged that the Third Party Respondents had the capacity to  
implement the order and doing so would not impose a significant burden on them (see GoldTV  
FC at paras 86-87).  
[173] In order to situate the discussion that follows and to better understand the concerns of the  
Third Party Respondents, it will be useful to begin with a description of the Plaintiffs’ proposed  
approach to dynamic site blocking.  
(a)  
Dynamic Site Blocking  
[174] The Plaintiffs propose to retain FMTS to monitor unlawful distribution of the copyright  
broadcasts of live NHL games, focusing on the IP addresses of the streaming servers through  
which the unnamed Defendants are distributing this content.  
Page: 53  
[175] Using proprietary methods described in the affidavits of Mr. Demetriades and Mr. Friend,  
FMTS would monitor a time window starting prior to a live NHL game broadcast and continuing  
through to the end of the game: this is described as the NHL Live Game Window. FMTS  
would identify live streams showing unauthorized versions of the copyrighted footage licensed  
by the Plaintiffs, referred to as NHL Game Footage, through its proprietary technology, which  
seeks to match a portion of the unauthorized stream to the corresponding portion of an  
authorized broadcast. Once this match occurs, FMTS would identify the relevant IP addresses  
associated with the unauthorized distribution, again using the expertise it has gained in  
performing similar monitoring under site blocking orders granted in the United Kingdom and  
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[176] In order to prevent over-blocking(i.e. preventing access to legitimate content), FMTS  
proposes a number of measures, including:  
1. limiting the time when dynamic IP blocking is active;  
2. verifying that other content available on the relevant pirate streaming infrastructure also  
consists of unauthorized content;  
3. verifying that there is no evidence of any substantial legitimate activity (separate from  
video streaming) taking place on the servers to be blocked;  
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5. reporting to the hosting provider whenever one or more of their servers are blocked so  
that the hosting provider is aware of it and can advise their clients.  
[177] The Plaintiffs say these measures would make “under-blocking” (i.e., blocking some, but  
not all, infringing content) more likely to occur than over-blocking, which would protect the  
interests of the Third Party Respondents and of the public in ensuring that access to legitimate  
content is not blocked.  
[178] Once these conditions were satisfied, FMTS would identify a number of IP addresses to  
be blocked to prevent the unauthorized streaming of each live NHL game. This list would be  
stored on a secure server that can be accessed by the ISPs. The list would be updated on a regular  
basis, and the ISPs in turn would be expected to update the IP addresses to be blocked at least  
once every hour during the NHL Live Game Window. This updating could be done either  
manually or by programming their systems to automate the process. Either way, this would  
involve obtaining the list from the secure server and pushing it to the core routers on a regular  
basis during the NHL Live Game Window.  
[179] The routing tables on the ISPs’ core routers would be programmed to blackhole requests  
from any subscribers for access to the listed IP addresses. This is ultimately how the blocking  
would occur; the router would be programmed so that it would not send the request to its  
intended destination, but instead would send it to nowhere, thus denying the customer access to  
the unauthorized stream.  
[180] At the end of the NHL Live Game Window, each ISP would be obligated to reconfigure  
its core routers to end the blocking of the listed IP addresses.  
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[181] The process would then be repeated when the next NHL Live Game Window began, and  
so on. That, in essence, is what dynamic site blocking as proposed by the Plaintiffs would  
involve.  
[182] With this background, we turn to the analysis of balance of convenience.  
(b)  
The Cartier factors  
(i)  
Complexity and Cost  
[183] This factor considers the complexity and cost of implementing the proposed dynamic  
blocking order. A significant portion of the evidence and argument in this case focused on this  
point, including both whether the Third Party Respondents could actually implement the type of  
dynamic site blocking sought by the Plaintiffs, the cost and difficulty they would encounter in  
doing so, and the risks they would incur. Related to this is the question of who pays, which is  
discussed below under the heading Costs of Implementation.  
[184] Under this element, the focus is on the burden imposed on the Third Party Respondents if  
they are required to implement a dynamic site blocking order. The reason is obvious, and the  
point was expressed in this way in Cartier at para 120 (citing Scarlet Extended SA Societe Belge  
des Auters, Compositeurs et Editeurs Scrl (SABM), [2011] ECR I11959 at para 48, which in  
turn references Directive 2004/48/EC of the European Parliament and Council of 29 April 2004  
on the enforcement of intellectual property rights (OJ L 157, 30.4.2004) [EU Directive]:  
[S]uch an injunction would result in a serious infringement of the  
freedom of the ISP to conduct its business since it would require  
that ISP to install a complicated, costly, permanent computer  
system at its own expense, which would also be contrary to the  
Page: 56  
conditions laid down in Article 3(1) of [the EU Directive], which  
requires that measures to ensure the respect of intellectual-property  
rights should not be unnecessarily complicated or costly.  
[185] Although in Cartier this factor was grounded in article 3(1) of the EU Directive which  
has no application in Canada the underlying rationale for the factor has been found to be  
relevant in this country (see GoldTV FC at paras 48-50).  
[186] The Third Party Respondents argue that they are being asked to take on additional  
onerous obligations that will benefit their competitors and that may adversely affect the quality  
and reliability of their service to their own customers. As Cogeco put it. “[t]his would be akin to  
being forced to become business partners with the Plaintiffs(Cogeco Factum at para 57).  
Similarly, Telus said that while it sympathized with the goal of eliminating piracy, it disagreed  
with the proposition that the Plaintiffs are entitled to a court order that imposes obligations,  
burdens and costs on [Telus] as a competitor, for the sole purpose of enhancing the ability of  
their media divisions to make more money when licensing their content for authorized  
distribution(Affidavit of Nazim Benhadid at para 24).  
[187] The Third Party Respondents object to the blanket statements by the Plaintiffs’  
representatives that every ISP can implement the order, noting that none of these individuals  
have any knowledge or experience with their particular network infrastructure. I agree with this  
concern, and the general point was not seriously contested by the Plaintiffs.  
[188] The Third Party Respondents’ evidence shows their situations regarding their network  
infrastructure, internal organization, and plans for upgrading their networks are each unique.  
They therefore submit that it is not appropriate to impose a blanket order that would impose  
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identical obligations on each of them, noting that they would not be in a position to comply with  
any order without diverting significant time, energy and resources (both human and financial) to  
the task.  
[189] Despite the unique situations of each Third Party ISP, their concerns are similar, and  
relate both to the nature and scope of the blocking sought and to the impact it would have on  
their networks and ultimately on their customers. There are several reasons for these concerns.  
[190] First, it is not possible to identify the number of IP addresses that will need to be blocked  
in advance, because the Order is unprecedented, so there is no relevant Canadian experience, and  
the scope of the measures taken under dynamic blocking orders elsewhere remain confidential.  
Noting that during the regular season there are between five and 10 NHL games broadcast each  
night, the anticipated burden of having to block unauthorized streaming of each game, to update  
the IP addresses to be blocked during each game, and then to unblock these sites at each game’s  
conclusion appears daunting.  
[191] Next, the Third Party Respondents have no capacity to verify that the sites to be blocked  
are carrying only unauthorized content and not also legitimate content, and so there is a risk of  
inadvertently blocking benign content (“over-blocking”).  
[192] Finally, the nature, scope and speed of actions that is needed to give effect to dynamic  
blocking imposes undue and unwarranted risks on the Third Party Respondents, who it bears  
repeating are not accused of any wrongdoing.  
[193] For the reasons explained below, I do not find it necessary to discuss much of the  
confidential business information that was filed by the Third Party Respondents. That said, I  
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wish to underline that this type of evidence may be a significant consideration in any future cases  
involving requests for a dynamic site-blocking order, and so the fact that it is not dealt with in  
detail here should not be taken as an indication that it is not relevant. Instead, it is simply a  
consequence of the current circumstances and the limitations on the Order that will issue, as  
explained below.  
[194] The evidence and arguments of the Third Party Respondents dealt with several aspects of  
cost and complexity, starting with whether they can - from a practical perspective - actually  
implement the Order. Several of their witnesses said they simply did not have the current  
capacity to give effect to the Order sought. There are several reasons for this. Some relate to the  
current design limits and management practices they have adopted in the management of their  
current networks. Others relate to the reality that dynamic site blocking of a high number of IP  
addresses on a continuous basis calls for an automated system, which none of the Third Party  
Respondents currently use. In addition, an overarching concern remains the impact on the  
stability, reliability and speed of their networks, and the potential for negative impacts on their  
subscribers as well as their corporate reputation.  
[195] It bears repeating that each of the Third Party Respondents is in a slightly different  
situation. I will therefore briefly discuss the evidence type provided.  
[196] Distributel operates three distinct legal entities: Distributel, Navigata (formed in 2018  
following an acquisition) and Primus (formed following completion of an acquisition in 2021).  
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|||||||||||||||||||||||||||||||||||||||||||||||||| the Plaintiffs clarified that they only sought an Order that would  
require Distributel to block its own subscribers, not those of the other recently-acquired  
companies.  
[197] ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| | ||||||||||  
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[198] ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||  
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[199] Cogeco ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||  
underlined the scrupulous planning and gradual nature of the changes it makes to its network,  
because of its commitment to excellent and reliable service.  
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|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Cogeco says that implementing the order would  
require a similarly cautious, staged approach.  
[200] |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||  
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Page: 60  
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[201] |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||  
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[202] While Cogeco’s witness provided a lengthy and detailed affidavit, I find his credibility  
was diminished by cross-examination. The witness provided evasive or incomplete answers to  
many questions and refused to accept obvious points, before finally conceding several matters  
that are key to the issues in this case. Because of this, I will give this witnesses’ evidence less  
weight in the overall assessment of the cost and complexity question.  
Page: 61  
[203] |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| | | | |  
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[204] Telus pointed to the fact that while it engaged in some site blocking in order to comply  
with the GoldTV FC order, or because of its participation in Project Cleanfeed, |||||||||||||||||||| | | |  
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[205] At bottom, I must first determine whether the Third Party Respondents can, in fact,  
implement the Order. If so, the question arises whether the Order sought would impose an  
inordinate burden on them.  
Page: 62  
[206] Having reviewed the evidence at length, I am satisfied that the Third Party Respondents  
each have the capacity to engage in the type of dynamic site blocking that is sought. While I  
accept that this will impose new obligations on each ISP, and certain additional risks, I am  
satisfied that the ISPs have the technical capability to engage in dynamic IP address site  
blocking.  
[207] As noted above, the Plaintiffs seek an order that would require ISPs to block access to  
unauthorized streaming servers and related infrastructure, identified by their respective IP  
addresses. This involves several basic steps: FMTS would assemble and update the list, for each  
NHL Live Game Window. The ISPs would then be required to access that list, and to configure  
their core routers so that any requests for access to those IP addresses are routed to a blackhole  
instead of their intended destinations. The list would only be activeduring the NHL Live  
Game Window, and it would be updated during each game. The ISPs would be required to  
engage in blocking of different IP addresses during each window, and to then unblock these sites  
after each game. They would have to repeat this process each time that an NHL game is  
broadcast, which can be several times a day, and may include simultaneous broadcasts of  
different games. This could be done manually, or by automating their systems to automatically  
download the list of IP addresses to be blocked and then pushing that information to their core  
routers.  
[208] I will return to the risks associated with the initial assembly of the list of IP addresses,  
and the controls and safeguards that should be put in place to mitigate these in subsequent  
sections. At this stage, the focus is on the cost and complexity imposed on the ISPs by such an  
Order.  
Page: 63  
[209] I am satisfied on the evidence that the networks of each of the ISPs have coreor  
borderrouters that represent the vital point in the chain by which their customers can access  
content on the Internet. Each of the witnesses agree that the function of a router is to route traffic  
either incoming or outgoing. Therefore, a router can be programmed either to forward  
incoming or outgoing requests to their intended destination, or to send them into a blackhole, to  
nowhere; all of the witnesses agree on that point. Indeed, the ISPs currently employ this  
technique for their own purposes, mainly to protect the integrity and stability of their networks.  
[210] For example, the Third Party Respondents protect individual subscribers from DDOS  
attacks by engaging in Remote Triggered Black Hole Filtering, and monitor their systems on a  
continuous basis to detect and respond to such attacks. The evidence shows that ISPs sometimes  
need to take such steps several times per day. Several of the Third Party Respondents do this  
through a combination of automated and manual interventions, and their monitoring is  
continuous.  
[211] However, the evidence is also clear that each of the Third Party Respondents has limits  
on its capacity to block, relating either to the configuration of their network, the limits of the  
routers they currently use, or both. They impose additional limits and restrictions to reduce the  
risk of error, and to maintain a certain reserve capacity to be able to respond to other problems  
that may arise, including DDOS attacks. I fully accept the evidence of the Third Party  
Respondents that their network infrastructure cannot block an unknown and (at this stage)  
unknowable number of IP addresses. The limits are real.  
[212] I do not accept, however, that this translates into an inability on the part of any of the  
Third Party Respondents to engage in dynamic site blocking, within the current parameters of  
Page: 64  
their network infrastructure. They all can and currently do engage in IP address site blocking,  
and so as a practical matter none of them will face an impossible situation as a result of the  
Order. They will face certain risks, however, and it is important to acknowledge and seek to  
mitigate these.  
[213] The concerns expressed by the Third Party Respondents related to the risks they would  
face in implementing the Order largely relate to the quantity and speed of blocking steps they  
would need to undertake. These concerns are valid and must be taken into account. A key  
consideration is that the Order would require the ISPs to alter the configuration of the core  
routers on a regular basis, and under certain time constraints. The reality is that while the core  
routers are key to the blocking that is required, they are equally vital to the operation of the ISPs’  
networks. These routers serve as the key junction point between their customers and the wider  
internet, and so anything that affects their capacity or any error that affects their functioning will  
have a significant impact on their customers. It is relevant that the ISPs operate in a highly  
competitive market, where customers demand quality, speed and reliability of service and can  
move to other providers if they become dissatisfied.  
[214] To mitigate these risks, the Third Party Respondents have implemented a number of  
internal business practices and processes, and it would be entirely appropriate for them to follow  
at least some of these in taking steps to implement the Order here.  
[215] Mr. Friend, one of the Plaintiffs’ witnesses, says that from the router’s perspective it does  
not matter which way the traffic is flowing; the router can either not send the incoming packets  
to their intended destination, or it can block outgoing requests. While that may be true from the  
router’s perspective, I accept the evidence of the Third Party Respondents that there is a  
Page: 65  
significant difference between interrupting the service to one customer to protect them and the  
wider system from a DDOS attack, as compared with denying outgoing requests from many  
subscribers. As |||||||| explained, the risk of continually updating the router tables is that an error  
inputting the address might affect not just a single subscriber or a few IP addresses. If the wrong  
IP address happens to be associated with a network gateway server, the effect would be to take  
an entire portion of their network down, potentially affecting thousands of customers.  
[216] The Order to be granted must take into account these risks and challenges, as well as the  
practical capacity limits that each of the Third Party Respondents face.  
[217] I am satisfied, however, that in light of the situation at the time of the issuance of this  
decision, implementing the Order will not impose undue cost or complexity on any of the Third  
Party Respondents. Several factors lead me to this conclusion.  
[218] First, I can take judicial notice of the fact that at the time these reasons are issued, the  
NHL playoffs are currently underway and thus the number of games being broadcast each day is  
significantly reduced. Of the 32 teams that play in the league, only 16 made the playoffs. The  
NHL playoffs are an elimination tournament of four rounds. Each round consists of a best-of  
seven series, and after each round, the number of teams playing is cut in half. As a practical  
matter, that will sequentially reduce the burden on each of the ISPs, and the blocking will end  
within a short, defined time frame.  
[219] Second, the Order to be issued will require each ISP to engage in blocking only to the  
extent of its current capacity. There are several important elements here. First, all of the parties  
agree that demand for Internet services is constantly growing; there is evidence that some of the  
Page: 66  
ISPs plan for a 10% annual increase. In light of this, each of the ISPs is regularly making  
significant planned investments to increase or enhance its current network capacity, simply to be  
able to continue to serve their customers. The Order in this case will require each ISP to engage  
in blocking to its then-current capacity. So, for example, if between the time of the hearing and  
the release of the decision, one of the ISPs has purchased and installed one or more new core  
routers, and thus increased its capacity to engage in blocking, it will be expected to block as  
many sites as its newly-enhanced capacity allows.  
[220] Third, the Third Party Respondents can implement the Order using either manual or  
automated methods, depending on their particular circumstances. Although they may find it  
preferable to be able to rely on an automated system, it is not a condition of compliance that such  
a system be put in place.  
[221] The costs of implementation will be discussed below.  
[222] Finally, it is relevant to note that the Plaintiffs only requested an Order to run until the  
end of the current NHL season. Given that the playoffs are currently underway, that means that  
the burden on the Third Party Respondents will last for less than two months, following which  
all parties will have an opportunity to examine the costs and benefits of the blocking that has  
been undertaken.  
[223] For all of these reasons, I am not persuaded that the Order will impose undue cost or  
complexity on the Third Party Respondents.  
Page: 67  
(ii)  
Effectiveness  
[224] This factor involves a consideration of whether the relief sought will make infringing  
activities more difficult to achieve and discourage Internet users from accessing the infringing  
service. There is a degree of overlap between this factor, dissuasiveness and substitution,  
although their focus is on either existing or potential users of the pirated streams.  
[225] The Plaintiffs argue that the Order will be effective based on the evidence about how  
unlawful streaming occurs, and on the experience with these kinds of orders in other countries.  
They say that blocking access to streaming servers is essential because they are the source of the  
communication of the unauthorized broadcast. Because one streaming server may be hosting  
multiple unauthorized streaming platforms, blocking access to that server will disable all of the  
streams that rely on that platform.  
[226] The Plaintiffs acknowledge that they cannot bring any empirical evidence of the  
effectiveness of dynamic site blocking orders in Canada since this case is the first of its kind  
here; however, they submit that the effectiveness of dynamic site blocking orders to thwart the  
effects of piracy of live sports content has been recognized in other jurisdictions.  
[227] The Third Party Respondents submit that the Plaintiffs have failed to make their case on  
this point. They note that the Plaintiffs could have undertaken steps prior to launching this  
litigation to test and be able to report on the effectiveness of the requested order. Since the  
Plaintiffs provide over 70% of the Internet services to residential customers in Canada, they  
could have sought the necessary approvals to be able to engage in a test of the impact of dynamic  
site blocking.  
Page: 68  
[228] In addition, the Third Party Respondents contend that the evidence of the Plaintiffs’  
witnesses should be discounted because they are employees of FMTS, the company that Rogers  
hired to conduct the monitoring and that the Plaintiffs propose to rely on to implement the Order.  
Given their financial interest in the outcome of the matter, these witnesses are not independent or  
objective, and they should not be recognized as experts. In light of this, the Third Party  
Respondents submit that the Plaintiffs have failed to demonstrate that the requested Order will be  
effective.  
[229] Starting with this last point, I agree with the Third Party Respondents that Mr.  
Demetriades and Mr. Friend cannot be accepted as expert witnesses, because of their financial  
interest in the matter and the absence of an explanation as to why other, more objective, evidence  
was not available (White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 at  
paras 45, 50). That said, however, I find that much of the evidence of both witnesses was of a  
factual nature, based on their experience with similar blocking orders in other countries, the  
services they have provided to copyright owners in those instances, and the work they performed  
for Rogers here. None of this evidence was contradicted or seriously challenged on cross-  
examination, and I find that it is reliable and persuasive. As will be explained below, I also find  
that independent and objective expert monitoring and reporting is called for in this case, partly  
because of the ongoing contractual relationship between FMTS and the Plaintiffs.  
[230] Turning to the substance of the issue, based on the evidence in the record, and the  
experience in other countries, I am prepared to accept that the Order will be effective in making  
the infringing activities more difficult and it will have the effect of discouraging users from  
Page: 69  
accessing the infringing services. I note that Justice Gleeson reached the same conclusion in  
GoldTV FC, for largely similar reasons (see paras 75, 81).  
[231] The evidence shows that almost | | | | of instances of infringement identified by FMTS  
during its monitoring of the unauthorized streaming of the Rogers broadcasts would be captured  
by the Order sought. This is an indication that the targets of the Order are a substantial source of  
the unauthorized streams being accessed to view live NHL games, and thus cutting off these  
services can be expected to have a significant impact.  
[232] This is consistent with the evidence of the Plaintiffs’ witnesses, who spoke to their  
experience elsewhere as well as the efforts to measure the effectiveness of the orders granted by  
other courts. In particular, Mr. Demetriades stated Based on our experience, [dynamic site  
blocking] proved to be much more effective than any previous anti-piracy methods in terms of  
the ability to have a noticeable impact on the availability of live Premier League matches on  
pirate streaming services(Demetriades Affidavit at para 111).  
[233] In the United Kingdom, a series of cases have accepted evidence of the effectiveness of  
this technique, finding that past experience suggests that blocking access causes a material  
reduction in the number of UK users who access blocked websites(The Football Association  
Premier League Ltd v British Telecommunications Plc, [2017] EWHC 480 [Premier League] at  
para 49; see also: Union des Associations Européens de Football v Eircom Ltd TéA Eir & Ors,  
[2020] IEHC 488 at para 11 and the cases cited therein).  
[234] This conclusion is also bolstered by a recent study of the European Union Intellectual  
Property Office, which found that courts in the UK and in some other countries have concluded  
Page: 70  
that such orders are effective in reducing traffic to unauthorized streaming sites (EUIPO, Study  
on Dynamic Blocking Injunctions in the European Union (2021) at 59).  
[235] Based on all of this, I find that the Plaintiffs have established that the Order they seek will  
be effective.  
(iii)  
Dissuasiveness/substitution  
[236] These factors are largely self-explanatory. Dissuasiveness considers whether others not  
currently accessing the infringing services will be dissuaded from doing so. Substitution  
examines the extent to which the blocked websites may be replaced or substituted by new or  
other infringing sites. Like the other factors, these elements speak to the proportionality of the  
proposed Order. If it will not steer people away from the unauthorized services, or the blocked  
sites can easily be replaced by other illegal streams, then imposing the burden on the innocent  
ISPs who will have to implement it may not be justified.  
[237] The Plaintiffs submit that experience elsewhere shows that the Order will be dissuasive,  
because denying access to unauthorized content “will help to educate… consumers that  
accessing infringing streams is not a lawful or reliable way to access [the] content.” (Premier  
League at para 53). They argue that while there are some circumvention measures that users  
could potentially rely on, such tools have significant costs and it has been recognized that adding  
costs to the unauthorized streaming may bring the user’s total costs of accessing infringing  
content closer to the costs of a legal subscription. In Twentieth Century Fox Film Corp v British  
Telecommunications Plc, [2011] EWHC 1981, at paragraph 196, it was found that “[t]he smaller  
Page: 71  
the cost differential, the more likely it is that at least some users will be prepared to pay a little  
extra to obtain material from a legitimate service.”  
[238] The Plaintiffs say that this is particularly apt in the context of the piracy of sporting  
events such as NHL games, which are best experienced live. Users who repeatedly have their  
access to the unauthorized stream blocked are more likely to consider subscribing to an  
authorized service rather than paying for additional means of continuing to access the illegal  
content. In addition, they claim that this type of order has a dissuasive effect on the operators of  
the unauthorized streaming servers. That is because their operations will be disrupted on an  
ongoing basis, as the lists are updated and new IP addresses are identified for blocking.  
[239] The Plaintiffs further submit that they can identify and block the vast majority of  
unauthorized streaming services, and therefore substitution will be limited. Even though they  
will not succeed in blocking all of the unauthorized streams, the Plaintiffs say that alternatives  
will not be so readily available as to undermine the Order’s utility. They argue that because the  
list of IP addresses to be blocked would be updated on a regular basis, the Order will be as  
comprehensive as it can be and thus there will be a limited ability to substitute other  
unauthorized streams for the ones that are blocked.  
[240] The Third Party Respondents did not address this topic in any detail, other than to note  
that the dissuasive effect of the order would be enhanced by a requirement that specific notices  
be sent to individual customers after their access was blocked. They point out that such notices  
are not required by the terms of the Order proposed by the Plaintiffs; they also note that none of  
them have the current capacity to implement such a practice, and doing so would involve new  
investments in a Deep Packet Inspection (DPI) system, with the associated implementation costs.  
Page: 72  
[241] I am persuaded that the Order is likely to have at least some dissuasive effect and that  
substitution will not undermine its effectiveness. As has been found in similar cases elsewhere  
(cited above) and as Justice Gleeson concluded in GoldTV FC at paragraph 84, blocking access  
to unauthorized content is likely to have an impact on the individuals affected, and they face  
costs and a degree of complexity in seeking to evade the effects of a blocking order. This may  
dissuade them from continuing, and it may persuade others who may be tempted that it is not  
worth the effort.  
[242] Furthermore, I find that substitution will not be so easily done as to defeat the purpose of  
the Order or to render it disproportional to the effort required by the Third Party Respondents.  
The evidence shows that almost | | | | of the unauthorized streaming of live NHL games would be  
captured by the Order, and so a significant proportion of the current access would be cut off. It is  
not clear whether or how these viewers could replace this content simply by switching to the  
sites that remain unblocked; for example, it is not evident that these sites can handle such a  
significant increase in traffic, or that they provide access to a stream of similar quality and  
reliability as the blocked streams. Thus, substitution is not a barrier to the Order.  
[243] On the evidence before me, I accept that while the terms of the Order to be granted will  
result in a degree of under-blocking (so as to avoid affecting benign traffic by innocent  
individuals), the type of blocking order here will nevertheless significantly limit access to the  
unauthorized streaming of live NHL games. That is all that is required under this element of the  
test.  
[244] For these reasons, I find that the Plaintiffs have met the Dissuasiveness and Substitution  
elements of the Cartier factors.