Date: 20220630  
Docket: T-1184-21  
Citation: 2022 FC 979  
Ottawa, Ontario, June 30, 2022  
PRESENT: The Hon Mr. Justice Henry S. Brown  
BETWEEN:  
ROVI GUIDES, INC.  
Plaintiff  
and  
BCE INC., BELL CANADA, BELL MEDIA INC., BELL  
EXPRESSVU LIMITED PARTNERSHIP,  
NORTHERNTEL, L.P., TELEFONAKTIEBOLAGET L M  
ERICSSON, ERICSSON CANADA INC., MK SYSTEMS  
USA INC., AND MK MEDIATECH CANADA INC.  
Defendants  
JUDGMENT AND REASONS  
I.  
Nature of the matter  
[1]  
This is an appeal brought by the Defendants BCE Inc., Bell Canada, Bell Media Inc., Bell  
Expresssvu Limited Partnership, Northerntel, L.P., Telefonaktiebolaget L M Ericsson, Ericsson  
Canada Inc., MK Systems USA Inc., and MK Mediatech Canada Inc. [“Bell Mediakind” or  
Page: 2  
“Defendants”] pursuant to Rule 51 of the Federal Courts Rules, SOR/98-106 [Federal Courts  
Rules] in this patent infringement action [Bell Mediakind Action]. The appeal is from two parts  
of the Order of Case Management Judge Aalto [CMJ], dated March 22, 2022 [Order]. First, the  
appeal is from the CMJ’s dismissal of the Defendants’ motion to strike the Plaintiff’s Statement  
of Claim [SOC] against the Defendants Telefonaktiebolaget L M Ericsson, Ericsson Canada Inc.,  
MK Systems USA Inc., and MK Mediatech Canada Inc. [collectively Mediakind] for alleged  
failure to plead material facts supporting its claims for infringement. The Defendants also appeal  
the Order of the CMJ refusing to strike the Plaintiff’s allegations of infringement by common  
design and agency as disclosing no reasonable cause of action. In the alternative the Defendants  
had sought further particulars from the CMJ, which request was refused, from which refusal the  
Defendants do not appeal.  
II.  
Facts  
[2]  
The underlying action in this appeal is one of two patent infringement actions  
commenced by the Plaintiff [“Rovi Guides Inc.” or “Rovi”]. The two are case managed together.  
The underlying action in the case at bar is against the Bell Mediakind Defendants. The other  
Rovi action is against Videotron Inc. (T-841-21) [Videotron Action].  
[3]  
In each action, four patents are alleged to be infringed, although the patents in each are  
different. The patents in both actions relate to digital entertainment technologies which include  
Interactive Program Guides [IPG] and various features of the IPG. IPGs allow users to find  
programming, navigate from one channel to the next or one source to the next, search for  
content, record content, view content remotely, and more.  
Page: 3  
[4]  
The technologies in the Bell Mediakind Action are described in detail in the SOC and  
relate to Bell subscription-based television through platforms known as Bell Crave TV, Bell Fibe  
TV and Bell Satellite TV. The SOC is 61 pages long, and has attached four schedules containing  
another 207 pages of “non-limiting” particulars of the infringement which cover all asserted  
claims. The Defendants do not have a license from Rovi for Rovi’s asserted patent technology.  
[5]  
The Defendants moved pursuant to Rule 221 of the Federal Courts Rules, seeking to  
strike Rovi’s claim against Mediakind on the ground there are no or insufficient material facts to  
support its allegations of infringement. In addition, Bell Mediakind sought to strike many  
paragraphs of the claim and/or words on various grounds but in essence, on the basis of a lack of  
material facts.  
[6]  
In the alternative, Bell Mediakind sought particulars pursuant to Rule 181 for the  
impugned paragraphs.  
[7]  
The motions to strike or alternatively for particulars brought by Bell Mediakind in this  
Bell Mediakind Action, and by Videotron in the Videotron Action, were heard one after the  
other. The CMJ dismissed both motions although he granted limited relief in the case at bar and  
struck the phrase “at least” from the SOC. Videotron and Bell Mediakind have both appealed to  
this Court. The Court is giving judgment in the Videotron appeal simultaneously with its  
judgment in this Bell Mediakind appeal.  
Page: 4  
A.  
The CMJ’s Order  
[8]  
On March 22, 2022, the CMJ dismissed the Defendants’ motion to strike Mediakind as  
defendants. While the CMJ struck some phrases, and ordered limited particulars for a few  
paragraphs, he dismissed the remainder of both Bell Mediakind’s motion to strike and for  
particulars.  
[9]  
The CMJ Reasons in this case followed those issued in the Videotron Action. The CMJ  
noted the order issued in the Videotron Action canvasses a number of issues common to Bell  
Mediakind’s motion in this action. Importantly and therefore, the CMJ adopted in this case his  
reasons in the Videotron Action, to the extent they canvass the test for particulars and striking  
out causes of action, and therefore did not repeat those Reasons in his Reasons in the case at bar.  
[10] Regarding the striking of Mediakind as defendants, the Defendants submit the SOC  
contains no material facts concerning the conduct of Mediakind that allegedly amounts to  
infringement. They submit that because the Mediakind defendants do not provide television  
services in Canada they cannot infringe the asserted claims directly, by inducement, agency,  
common design or otherwise.  
[11] However, and importantly, at paragraph 51 of the SOC, Rovi pleads as a material fact  
that on January 18, 2018, the Defendant Bell made an announcement that Bell would offer  
“enhanced, personalized and converged multiscreen TV experience” arising from its relationship  
Page: 5  
with various of the Mediakind entities. This pleading must be accepted as true, and there is no  
suggestion otherwise.  
[12] The content of the agreement between Bell and Mediakind has not been disclosed by the  
Defendants. It is common ground Rovi has no knowledge of its provisions. Rovi pleads as much  
which again must be and is accepted as true. Rovi concedes it does not know the precise roles  
each of the Mediakind entities play in the various TV platforms in issue but asserts such  
information is within the knowledge of the Defendants.  
[13] As with the Videotron Action, the CMJ noted that Rovi provided non-limiting particulars  
of infringement in four schedules attached to its SOC. For the reasons in the Videotron Action,  
the CMJ also found the non-limiting schedules of particulars should not be struck nor would  
further particulars be ordered because Rovi pleaded a reasonable cause of action and provided  
sufficient particulars.  
[14] However, the CMJ found some limitations should be placed on Rovi’s SOC in the action  
in the case at bar and held the phrase “at least” should be removed. This phrase is found  
throughout the SOC and is used in connection with Mediakind by referring to (1) “Bell (and/or  
Mediakind for at least Fibe TV)” or (2) “in respect of at least Fibe TV”. The CMJ found the  
phrase “at least Fibe TV” invites a fishing expedition to determine if other television-based  
platforms of Bell about which Rovi has not pleaded any material facts also infringe. Therefore,  
the CMJ struck the phrase “at least” wherever it is found with respect to the two phrases above.  
Otherwise, Bell Mediakind’s motion was dismissed.  
Page: 6  
[15] The CMJ also noted, as he did in the Videotron Order, that this is a case managed action.  
The discovery process would be closely monitored by the Court to ensure it does not devolve  
into an unfocused and overreaching exercise. This was noted in the Reasons of the CMJ, who  
also ruled that a detailed discovery plan will be developed and approved by the Court prior to the  
commencement of the discoveries. Further, to the extent that it may be necessary to control the  
discoveries and limit any refusals, the discoveries may take place when the Court is available to  
make rulings on areas of questioning as the discoveries unfold.  
[16]  
Therefore, the CMJ Ordered:  
A.  
The Statement of Claim shall be amended in accordance  
with his Order.  
B.  
C.  
Costs in the cause.  
A case conference will be convened to discuss next steps.  
[17]  
Bell Mediakind appeals the Order of the CMJ seeking:  
A.  
B.  
An Order setting aside, in part, the Order of March 22,  
2022;  
An Order under Rule 221(1) of the Federal Courts Rules  
striking the Plaintiff’s Statement of Claim against the  
Mediakind Defendants for failing to plead material facts  
disclosing a reasonable cause of action;  
C.  
An Order under Rule 221(1) of the Federal Courts Rules  
striking the allegations of infringement by common design  
and agency;  
D.  
E.  
The Defendants’ costs of this motion; and  
Such further and other relief as this Honourable Court may  
deem just.  
Page: 7  
III.  
Issue  
[18]  
The sole issue on this appeal is whether the CMJ erred in dismissing Bell Mediakind’s  
motion to strike Rovi’s SOC against Mediakind. The Defendants do not challenge the CMJ’s  
dismissal of their alternative claim for particulars.  
IV.  
Standard of Review  
[19]  
On an appeal from a discretionary order of a Prothonotary under Rule 51, the Court  
applies the standards of review established in Hospira Healthcare Corp. v Kennedy Institute of  
Rheumatology, 2016 FCA 215 at paras 68-69 and 79 [Hospira]. There, a five Judge panel of the  
Federal Court of Appeal determined this Court may only interfere with a discretionary decision  
of a Prothonotary where there is a palpable and overriding error on a question of fact or mixed  
fact and law. Correctness is the standard of review for extricable errors of law.  
[20]  
2002 SCC 33 [Housen]:  
1 A proposition that should be unnecessary to state is that a court  
This standard is established by the Supreme Court of Canada in Housen v Nikolaisen,  
of appeal should not interfere with a trial judge's reasons unless  
there is a palpable and overriding error. The same proposition is  
sometimes stated as prohibiting an appellate court from reviewing  
a trial judge's decision if there was some evidence upon which he  
or she could have relied to reach that conclusion.  
[…]  
8 On a pure question of law, the basic rule with respect to the  
review of a trial judge’s findings is that an appellate court is free to  
replace the opinion of the trial judge with its own. Thus the  
standard of review on a question of law is that of correctness:  
Kerans, supra, at p. 90.  
Page: 8  
[…]  
10 The standard of review for findings of fact is that such findings  
are not to be reversed unless it can be established that the trial  
judge made a "palpable and overriding error": Stein v. The Ship  
"Kathy K", 1975 146 (SCC), [1976] 2 S.C.R. 802, at p.  
808; Ingles v. Tutkaluk Construction Ltd., [2000] 1 S.C.R. 298,  
2000 SCC 12, at para. 42; Ryan v. Victoria (City), 1999  
706 (SCC), [1999] 1 S.C.R. 201, at para. 57. While this standard is  
often cited, the principles underlying this high degree of deference  
rarely receive mention. We find it useful, for the purposes of this  
appeal, to review briefly the various policy reasons for employing  
a high level of appellate deference to findings of fact.  
[…]  
36 […] Matters of mixed fact and law lie along a spectrum. Where,  
for instance, an error with respect to a finding of negligence can be  
attributed to the application of an incorrect standard, a failure to  
consider a required element of a legal test, or similar error in  
principle, such an error can be characterized as an error of law,  
subject to a standard of correctness. Appellate courts must be  
cautious, however, in finding that a trial judge erred in law in his  
or her determination of negligence, as it is often difficult to  
extricate the legal questions from the factual. It is for this reason  
that these matters are referred to as questions of "mixed law and  
fact". Where the legal principle is not readily extricable, then the  
matter is one of "mixed law and fact" and is subject to a more  
stringent standard. The general rule, as stated in Jaegli Enterprises,  
supra, is that, where the issue on appeal involves the trial judge's  
interpretation of the evidence as a whole, it should not be  
overturned absent palpable and overriding error.  
[Emphasis added]  
[21]  
Importantly, the Federal Court of Appeal in Hospira specifically ruled that decisions  
of Case Management Judges including Prothonotaries are no longer subject to de novo hearings  
on appeal to the Federal Court:  
[64] These circumstances “fundamentally shift the parameters of  
the debate” regarding the standard applicable to discretionary  
orders of prothonotaries. In my respectful opinion, the supervisory  
role of judges over prothonotaries enunciated in Rule 51 no longer  
Page: 9  
requires that discretionary orders of prothonotaries be subject to de  
novo hearings. That approach, as made clear by Low J. in Zeitoun,  
is one that has been overtaken by the evolution and rationalization  
of standards of review and by the presumption of fitness that both  
judges and masters are capable of carrying out the mandates which  
the legislator has assigned to them. In other words, discretionary  
orders of prothonotaries should only be interfered with when such  
decisions are incorrect in law or are based on a palpable and  
overriding error in regard to the facts.  
[Emphasis added]  
[22]  
Justice Stratas in Canada v South Yukon Forest Corporation, 2012 FCA 165 explains  
what the Applicant must show to establish a palpable and overriding error on appeal:  
[46] Palpable and overriding error is a highly deferential standard  
of review: H.L. v. Canada (Attorney General), 2005 SCC 25,  
[2005] 1 S.C.R. 401; Peart v. Peel Regional Police Services (2006)  
2006 37566 (ON CA), 217 O.A.C. 269 (C.A.) at paragraphs  
158-59; Waxman, supra. “Palpable” means an error that is obvious.  
“Overriding” means an error that goes to the very core of the  
outcome of the case. When arguing palpable and overriding error,  
it is not enough to pull at leaves and branches and leave the tree  
standing. The entire tree must fall.  
[Emphasis added]  
[23]  
Immigration), 2017 FCA 157:  
[61] Palpable and overriding error is a highly deferential standard  
Justice Stratas provides additional guidance in Mahjoub v Canada (Citizenship and  
of review: Benhaim v. St. Germain, 2016 SCC 48, [2016] 2 S.C.R.  
352 at para. 38; H.L. v. Canada (Attorney General), 2005 SCC 25,  
[2005] 1 S.C.R. 401. When arguing palpable and overriding error,  
it is not enough to pull at leaves and branches and leave the tree  
standing. The entire tree must fall. See Canada v. South Yukon  
Forest Corporation, 2012 FCA 165, 431 N.R. 286 at para. 46,  
cited with approval by the Supreme Court in St. Germain, above.  
[62] “Palpable” means an error that is obvious. Many things can  
qualify as “palpable.” Examples include obvious illogic in the  
reasons (such as factual findings that cannot sit together), findings  
made without any admissible evidence or evidence received in  
Page: 10  
accordance with the doctrine of judicial notice, findings based on  
improper inferences or logical error, and the failure to make  
findings due to a complete or near-complete disregard of evidence.  
[63] But even if an error is palpable, the judgment below does not  
necessarily fall. The error must also be overriding.  
[64] “Overriding” means an error that affects the outcome of the  
case. It may be that a particular fact should not have been found  
because there is no evidence to support it. If this palpably wrong  
fact is excluded but the outcome stands without it, the error is not  
“overriding.” The judgment of the first-instance court remains in  
place.  
[65] There may also be situations where a palpable error by itself is  
not overriding but when seen together with other palpable errors,  
the outcome of the case can no longer be left to stand. So to speak,  
the tree is felled not by one decisive chop but by several telling  
ones.  
[Emphasis added]  
[24]  
On an appeal under Rule 51, a case management judge is assumed to be very familiar  
with the particular circumstances and issues in a proceeding and therefore, a case management  
judge’s decision must be afforded deference, especially on factually suffused questions, see  
Hughes v Canada (Human Rights Commission), 2020 FC 986 [per Little J] at para 67 [Hughes];  
Sawridge Band v R, 2001 FCA 338, at para 11; and Merck & Co v Apotex Inc., 2003 FCA 438, at  
para 12.  
[25]  
Bell Mediakind submits the errors committed by the CMJ are errors of law and  
therefore the correctness standard applies to all issues.  
[26]  
Rovi submits the standard of review is palpable and overriding error for an appeal of a  
prothonotary’s discretionary order, absent an error in law or on an extricable legal principle, in  
my view correctly citing to Hospira, supra. As in its submissions in the Videotron Action, Rovi  
Page: 11  
also relies on Elbit Systems Electro-optics Elop Ltd. v Selex ES Ltd., 2016 FC 1129 [Elbit] where  
Justice Martineau states:  
[17]  
The Federal Court of Appeal concluded that the Housen  
standard should be applied in reviewing discretionary decisions of  
judges and prothonotaries. This standard establishes that with  
respect to factual conclusions reached by trial judges, the  
applicable standard is that of palpable and overriding error, and  
with respect to questions of law and questions of mixed fact and  
law, where there was an extricable legal principle at issue, the  
applicable standard is that of correctness: Hospira at para 66,  
citing to paras 19 to 37 of Housen; para 69; para 71, citing to paras  
25 to 29 of Imperial Manufacturing Group Inc v Decor Grates  
Incorporated, 2015 FCA 100, [2016] 1 FCR 246 79; para 74,  
citing to para 12 of Turmel v Canada, 2016 FCA 9, 481 NR 139;  
and para 79.  
[18] In the present case, since the Prothonotary did not make  
any error while describing the applicable test and legal principles  
governing the striking out of a pleading under Rule 221, and since  
the defendant is challenging the Prothonotary’s application of Rule  
221 on the specific facts of the case, the applicable standard of  
review for such question of mixed fact and law should be that of  
palpable and overriding error. No final decision has been made by  
the Prothonotary on the merit of the allegations of infringement  
and induced infringement made by the plaintiff in its statement of  
claim. I doubt very much that the issues raised today by the  
defendant in this appeal truly deal with a pure question of law or  
an extricable legal principle at issue.  
…
[37] The role of the Motions Judge in deciding the merit of an  
appeal of a discretionary order of a prothonotary is limited to  
verify whether a reviewable error has been made by the  
prothonotary (Hospira at paras 64, 69, 78 and 79). In the case at  
bar, it was not plain and obvious for the Prothonotary that the  
impugned paragraphs of the statement of claim should be struck  
out under Rule 221 because they disclosed no reasonable cause of  
action or were otherwise deficient. In the absence of an error on a  
question of law or an extricable legal principle, intervention is  
warranted only in cases of palpable and overriding error by the  
Prothonotary. This is not the case here and I have no reason to  
intervene today in the exercise of the Prothonotary’s discretion to  
refuse to strike a proceeding.  
Page: 12  
Respectfully, given the foregoing jurisprudence including Elbit, and because the  
[27]  
Defendants are challenging the Prothonotary’s discretionary application of Rule 221 to the facts  
of this case, I conclude the applicable standard of review is that for questions of mixed fact and  
law, namely palpable and overriding error.  
V.  
Relevant Provisions  
[28] Rule 51(1) of the Federal Courts Rules:  
Appeal  
Appel  
51 (1) An order of a  
51 (1) L’ordonnance du  
prothonotary may be appealed protonotaire peut être portée  
by a motion to a judge of the  
Federal Court.  
en appel par voie de requête  
présentée à un juge de la Cour  
fédérale.  
[29] Rule 181 of the Federal Courts Rules:  
Particulars  
Précisions  
181 (1) A pleading shall  
contain particulars of every  
allegation contained therein,  
including  
181 (1) L’acte de procédure  
contient des précisions sur  
chaque allégation, notamment:  
(a) particulars of any  
alleged misrepresentation,  
fraud, breach of trust,  
wilful default or undue  
influence; and  
a) des précisions sur les  
fausses déclarations,  
fraudes, abus de confiance,  
manquements délibérés ou  
influences indues  
reprochés;  
(b) particulars of any  
b) des précisions sur toute  
allégation portant sur l’état  
mental d’une personne, tel  
un déséquilibre mental, une  
incapacité mentale ou une  
alleged state of mind of a  
person, including any  
alleged mental disorder or  
Page: 13  
disability, malice or  
fraudulent intention.  
intention malicieuse ou  
frauduleuse.  
Further and better  
particulars  
Précisions supplémentaires  
(2) On motion, the Court may (2) La Cour peut, sur requête,  
order a party to serve and file ordonner à une partie de  
further and better particulars  
of any allegation in its  
pleading.  
signifier et de déposer des  
précisions supplémentaires sur  
toute allégation figurant dans  
l’un de ses actes de procédure.  
[30] Rule 221(1) of the Federal Courts Rules:  
Motion to strike  
Requête en radiation  
221 (1) On motion, the Court 221 (1) À tout moment, la  
may, at any time, order that a Cour peut, sur requête,  
pleading, or anything  
ordonner la radiation de tout  
ou partie d’un acte de  
procédure, avec ou sans  
autorisation de le modifier, au  
motif, selon le cas:  
contained therein, be struck  
out, with or without leave to  
amend, on the ground that it  
(a) discloses no reasonable  
cause of action or defence,  
as the case may be,  
a) qu’il ne révèle aucune  
cause d’action ou de  
défense valable;  
(b) is immaterial or  
b) qu’il n’est pas pertinent  
redundant,  
ou qu’il est redondant;  
(c) is scandalous, frivolous  
c) qu’il est scandaleux,  
or vexatious,  
frivole ou vexatoire;  
(d) may prejudice or delay  
the fair trial of the action,  
d) qu’il risque de nuire à  
l’instruction équitable de  
l’action ou de la retarder;  
(e) constitutes a departure  
from a previous pleading,  
or  
e) qu’il diverge d’un acte  
de procédure antérieur;  
(f) is otherwise an abuse of  
f) qu’il constitue autrement  
the process of the Court,  
un abus de procédure.  
Page: 14  
and may order the action be  
Elle peut aussi ordonner que  
dismissed or judgment entered l’action soit rejetée ou qu’un  
accordingly.  
jugement soit enregistré en  
conséquence.  
Evidence  
Preuve  
(2) No evidence shall be heard (2) Aucune preuve n’est  
on a motion for an order under admissible dans le cadre d’une  
paragraph (1)(a).  
requête invoquant le motif  
visé à l’alinéa (1)a).  
VI.  
A.  
Analysis  
Did the CMJ err in dismissing Bell Mediakind’s motion to strike Rovi’s SOC for failure  
to plead sufficient material facts?  
[31] The CMJ at page 4 of the Order adopted the test for striking out causes of action, as well  
as the test for particulars in his Order in the Videotron Action. Therefore, the CMJ states the test  
“will not be repeated here.”  
[32] I therefore turn to the Reasons in the Videotron Action. There the CMJ cites to the test  
for motions strikes, including La Rose v Canada, 2020 FC 1008 [La Rose] where Justice Manson  
held at para 16: “whether it is plain and obvious that the pleadings disclose no reasonable cause  
of action, or that the claim has no reasonable prospect of success (Hunt v Carey Canada Inc,  
[1990] 2 SCR 959 at 980; R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 17 [Imperial  
Tobacco]). The threshold to strike a claim is high and the matter must proceed to trial where a  
reasonable prospect of success exists.”  
Page: 15  
[33] The following are the CMJ’s statement of the relevant legal principles on the issue of  
striking in more detail as taken from the Order in the Videotron Action:  
Page 3  
….  
Rovi alleges five infringing actions by Videotron as follows: direct  
infringement by Videotron; infringement by common design;  
induced infringement; agency; and direct infringement as a result  
of attribution of Comcast or subscribers’ actions. Of these causes  
of action, Videotron takes issue with infringement by common  
design and infringement by attribution. Videotron argues they are  
not recognized in Canadian law and ought to be struck.  
Page 4  
However, there is ample authority for the proposition that a novel  
cause of action should not be struck at this stage of the proceeding  
[see, for example, Nevsun Resources Ltd v Araya, 2020 SCC 5,  
and La Rose v Canada, 2020 FC 1008]. In the latter case, the  
Honourable Justice Michael Manson set out the general guidelines  
on a motion to strike as follows:  
[16] The test on a motion to strike is whether it is plain and  
obvious that the pleadings disclose no reasonable cause of action,  
or that the claim has no reasonable prospect of success (Hunt v  
Carey Canada Inc, [1990] 2 SCR 959 at 980; R v Imperial  
Tobacco Canada Ltd, 2011 SCC 42 at para 17 [Imperial  
Tobacco]). The threshold to strike a claim is high and the matter  
must proceed to trial where a reasonable prospect of success  
exists.[17] The material facts pleaded in the Statement of Claim  
must be taken as true, unless the allegations are based on  
assumption and speculation (Operation Dismantle v The Queen,  
[1985] 1 SCR 441 at para 27 [Operation Dismantle]). It is  
incumbent on the Plaintiffs to clearly plead the facts in sufficient  
detail to support the claims and the relief sought. The material facts  
form the basis upon which to evaluate the possibility of the success  
of the claim (Imperial Tobacco, above at para 22; Mancuso v  
Canada (National Health and Welfare), 2015 FCA 227 at paras  
16-17, leave to appeal to SCC refused, 36889 (23 June 2016)).[18]  
Further, the pleadings must be read as generously as possible,  
erring on the side of permitting a novel but arguable claim to  
proceed to trial (Imperial Tobacco at para 21; Atlantic Lottery v  
Corp Inc v Babstock, 2020 SCC 19 at para 19 [Atlantic  
Lottery]).[19] The test on a motion to strike considers the context  
Page: 16  
of the law and the litigation process. It “operates on the assumption  
that the claim will proceed through the court system in the usual  
way – in an adversarial system where judges are under a duty to  
apply the law as set out in (and as it may develop from) statutes  
and precedents” (Imperial Tobacco at para 25).These are the  
principles applicable to Videotron’s motion to strike Rovi’s pleas  
of attribution and common design.  
[34]  
There is no dispute and I accept the foregoing extract from La Rose accurately sets out  
the test on a motion to strike.  
[35]  
The CMJ also correctly canvasses the test on a motion for particulars at pages 9-10 of  
his Order. The CMJ holds that when faced with a motion for particulars, the Court asks two  
questions (Throttle Control Tech Inc v Precision Drilling Corporation, 2010 FC 1085 [per Zinn  
J] at para 10):  
1) Are the alleged particulars requested material facts or are they  
evidence? The former may be ordered whereas the latter should  
not.  
2) Are the particulars requested necessary for the purpose of being  
able to respond to the pleading?  
[36]  
Bell Mediakind submits the CMJ erred in declining to strike the claim against  
Mediakind because he applied the legal test applicable to a demand for particulars to their  
motion to strike. Therefore, Bell Mediakind submits the CMJ committed an extricable error of  
law (Housen, supra at para 27; Film City Entertainment Ltd. v Chinatown Electronics Centre  
Ltd., 2008 FC 778 [per Heneghan J] at para 10).  
Page: 17  
[37]  
I have concluded the applicable test is palpable and overriding error, and I do so given  
the jurisprudence, and because the issue raised by Bell Mediakind involves a question of mixed  
fact and law concerning the application of principles to the facts of this particular case. This is  
confirmed by the Order of the CMJ, where he acknowledges at page 4 that the Defendants  
sought two forms of relief: a motion to strike and, in the alternative, particulars.  
[38]  
Bell Mediakind points to the following as instances where they submit the CMJ  
applied considerations regarding a motion for particulars to their submission that Rovi had not  
pleaded sufficient material facts.  
[39] The first instance pointed to by Bell Mediakind is at page 7 of the CMJ’s Order:  
Bell makes much of the fact that neither they nor  
Mediakind know what it is that Mediakind does to infringe  
and that references to “platforms” is vague and imprecise.  
There is no evidence that they do not know. Bell and  
Mediakind are in the business of providing television  
programming of many sorts. It ill befits them to complain  
they cannot understand the patents in suit and the  
voluminous allegations and facts in the claim and the  
examples of infringement in the schedules.  
Save and except for the portions of the claim described  
above, the remaining parts of the motion are dismissed…  
[Emphasis added by the Defendants]  
[40]  
With respect, this is a summary paragraph dealing with both issues, striking and  
particulars. The CMJ addressed Bell Mediakind’s allegation it does not know how it is alleged to  
infringe Rovi’s patents – essentially they do not “know what it is that Mediakind does to  
infringe.” The CMJ then notes if this is the case, there is “no evidence that they do not know”.  
Page: 18  
This is a finding that sufficient facts and particulars are pleaded in the SOC. The CMJ’s reasons  
answer both the motion to strike and the related motion for particulars. I see nothing untoward  
the CMJ’s reasons in this respect. The answer to the motion to strike is found in the CMJ’s  
conclusion Bell Mediakind has sufficient knowledge and particulars of the cause of action  
asserted to proceed to file its Statement of Defence. Therefore, the CMJ’s conclusion is not an  
example of the CMJ applying considerations relevant to a motion for particulars to the motion to  
strike.  
[41]  
where the CMJ states:  
In addition, the defendants seek to strike many paragraphs of the  
The second instance pointed to by Bell Mediakind is at pages 4-5 of the CMJ’s Order  
claim and/or words here and there on various grounds but, in  
essence, on the basis of a lack of material facts. Alternatively, the  
defendants seek particulars of the impugned paragraphs. The  
defendants have not provided any evidence that they do not  
know the case they have to meet or that the particulars sought  
are not within their knowledge.  
[Emphasis added by the Defendants]  
[42]  
In this respect, Rovi correctly submits the bolded portion emphasized by Bell  
Mediakind is preceded by the sentence: “Alternatively, the defendants seek particulars of the  
impugned paragraphs.” The bolded sentence in my view properly highlights the complete  
absence of evidence from Bell Mediakind to support ordering further particulars. This is simply a  
response to the Defendants’ motion for particulars. There is no merit to the proposition it entails  
any misapplication of the well-known test to strike out pleadings set out in detail by the CMJ (by  
incorporation from the Videotron Action which I set out earlier). Considering the paragraph as a  
Page: 19  
whole, this is not an example of the CMJ applying considerations relevant to a motion for  
particulars on the motion to strike.  
[43]  
Given the above, and with respect, there is no basis for Bell Mediakind’s submission  
that the CMJ “applied the legal test applicable to a demand for particulars to the Defendants’  
motion to strike”. With respect these are simply instances of Bell Mediakind attempting to “slice  
and dice” the Order in an unsuccessful effort to manufacture an extricable question of law. I find  
nothing untoward, and certainly no palpable and overriding error in the CMJ’s citing and  
applying the agreed legal tests for both a motion to strike and a motion for particulars as he did  
in this case.  
[44]  
Bell Mediakind also submit a plaintiff is required to plead material facts supporting  
patent infringement and must set out “the constituent elements of each cause of action or legal  
ground raised” (Mancuso v Canada (National Health and Welfare), 2015 FCA 227 at para 19). I  
agree. That said the CMJ found Rovi pleaded sufficient material facts and provided sufficient  
particulars to support its claim. That was the finding of the CMJ, and with respect I am not  
persuaded the CMJ made a palpable and overriding error in respect of either.  
[45]  
In this connection it must be recalled that a motion to strike is a serious remedy – often  
described as a “draconian measure” – that should only be taken in the “clearest and most obvious  
cases” (Apotex Inc v Syntex Pharmaceuticals International Ltd, 2005 FC 1310 [per Blanchard J]  
at paras 31-33). In addition, as Justice Addy explained many years ago, in a case found in the  
Defendants’ own authorities: “[i]f a party is disentitled from obtaining particulars of an  
Page: 20  
opponent’s pleading he is, of course, precluded from requesting that the pleading be struck out  
for lack of particulars” (Caterpillar Tractor Co v Babcock Allatt Ltd, [1983] 1 FC 487, at para 7).  
That indeed is the case here – Bell Mediakind were refused particulars and did not appeal that  
determination, yet rather inconsistently assert the SOC should be struck for lack of material facts.  
[46]  
The CMJ’s findings that sufficient material facts are pleaded and that the Defendants  
are not entitled to additional particulars, are consistent with each other. These findings of the  
Prothonotary are entitled to deference on this appeal under Rule 51, as summarized in Hughes at  
para 67. While the CMJ’s reasons are necessarily brief, the Federal Court of Appeal has ruled  
that “detailed reasons are not required in a prothonotary’s order” (Maximova v Canada (Attorney  
General), 2017 FCA 230 at para 11). This is the case because “Prothonotaries deal with an  
extraordinary volume of procedural issues” (Novopharm Ltd v Nycomed Canada Inc, 2011 FC  
109 [per Mandamin J] at para 22 [Novopharm]). I note “[i]t would be intolerable, and the wheels  
of justice would grind most slowly indeed, if each discretionary order had to be accompanied by  
a full set of motivated reasons in order to discourage the unsuccessful party from appealing and  
inviting the Court to exercise its discretion anew,” (Novopharm, supra).  
[47]  
Respectfully, the heavy burden before the CMJ was on Bell Mediakind to establish  
Rovi’s claim “has no reasonable prospect of success”, and that Bell Mediakind lacked sufficient  
particulars to enable it to move to the next step and file a Statement of Defence. Bell Mediakind  
did not discharge this burden on the facts of this case. While the Defendants did not appeal the  
CMJ’s determination concerning particulars, I am unable to find the CMJ made any palpable and  
overriding error in respect of either determination.  
Page: 21  
It also seems to me Bell Mediakind’s allegations are an attempt to relitigate the  
[48]  
allegations they made before the CMJ, and to do so on a de novo basis contrary to Hospira’s  
determination (cited above at para 21) that appeals under Rule 51 are no longer determined on a  
de novo basis.  
B.  
Has Rovi pleaded sufficient material facts against Mediakind?  
[49] Bell Mediakind also submits “even if one assumes Rovi has pleaded sufficient material  
facts to advance its allegations against Bell, no such material facts are pleaded against Mediakind  
and Ericsson.” Bell Mediakind continues:  
31. Rovi pleads that “Mediakind’s use, manufacturing,  
distributing, offering for sale, selling, supplying and otherwise  
making available Mediaroom and Mediafirst to Bell as part of its  
Fibe TV service” constitutes direct infringement of the Asserted  
Patents. However, these verbs are mere recitations of categories of  
conduct which could amount to infringement in any case, if that  
conduct was tied to the essential elements of the asserted claims.  
Nowhere in the pleading does Rovi plead: (1) what the  
“Mediaroom” and “Mediafirst” platforms are alleged to do; (2)  
what features of Mediaroom and Mediafirst are alleged to infringe  
the Asserted Patents, or (3) how the incorporation of these  
“platforms” into Fibe TV is alleged to infringe the Asserted  
Patents. Accordingly, nothing ties Mediaroom or Mediafirst to the  
essential elements of any of the asserted claims, let alone all 111 of  
them.  
32. Instead, the pleading contains the generic statement that  
“Mediakind’s use, manufacturing, distributing, offering for sale,  
selling, supplying, and otherwise making available Mediaroom and  
Mediafirst to Bell as part of its Fibe TV service constitutes making,  
constructing, using, and/or selling under the terms of the Patent  
Act.” Further “details” provided by Rovi at paragraph 73 are  
identical to the allegations of direct infringement against Bell’s  
television services, despite the fact that the “Mediaroom” and  
“Mediafirst” platforms are different technologies and are not  
alleged to be television services. The pleading contains further  
generic allegations against Mediakind and Ericsson, including  
providing the platforms to others, testing for quality control,  
Page: 22  
demonstrating the platforms in various contexts, possessing the  
software, and executing the software installed on the platforms.  
These allegations are identical to the allegations made against  
Videotron for direct infringement in respect of Illico TV and Helix  
TV, further demonstrating the generic nature of these claims and  
failure of Rovi to provide any material facts specific to Mediakind  
or Ericsson’s activities.  
[50]  
Notably, in the case at bar the SOC is 61 pages in length, and has attached four  
schedules containing 207 pages setting out “non-limiting” particulars of infringement for each of  
the asserted claims of the patents. The CMJ found upon his analysis Rovi pleaded reasonable  
causes of action and provided sufficient particulars.  
[51]  
The Defendant’s argument is dealt with by the CMJ:  
First, with respect to Mediakind, the essence of the argument of the  
defendants is that the claim has no material facts concerning the  
conduct of Mediakind that amounts to infringement as they do not  
provide television services in Canada and therefore they cannot  
infringe the asserted claims directly, by inducement, agency,  
common design or otherwise.  
In particular, the Mediakind entities are described in paragraphs 46  
– 53 of the claim. Specifically, paragraph 51 pleads as a material  
fact that an announcement was made that Bell would offer  
“enhanced personalized and converged multiscreen TV  
experience” arising from a relationship with various of the  
Mediakind entities. Rovi concedes that it does not know the  
precise roles each of Mediakind entities plays in the various TV  
platforms in issue but that such information is within the  
knowledge of the defendants.  
As with the Videotron Action, Rovi has provided non-limiting  
particulars of infringement in four schedules attached to the claim.  
For the reasons in the Videotron Action, the non-limiting schedules  
of particulars will not be struck nor will further particulars be  
ordered. This is not a case where a party makes an open-ended  
pleading in the hope of finding a cause of action through the  
discovery process. Rovi has pleaded a cause of action and has  
provided particulars. However, as detailed below, some limitations  
Page: 23  
should be put on the pleading. The only particulars of infringement  
that are referenced in the schedules are the only particulars to  
which the defendants need respond. It would be beneficial,  
however, for Rovi to stipulate what other functionalities infringe  
without adding hundreds more pages of particulars. Those details  
can be obtained on discovery. The discovery process will not be  
used as a fishing expedition to try and determine if other aspects of  
the patents are infringed apart from what has been pleaded.  
[52] The CMJ found the Mediakind entities are described in paragraphs 46 to 53 of the claim  
and specifically, paragraph 51 pleads as a material fact that an announcement was made that Bell  
would offer “enhanced personalized and converged multiscreen TV experience” arising from a  
relationship with various of the Mediakind entities. This pleading by Rovi must be accepted as  
true under Rule 221(2). With respect, these agreements are pleaded – and must be accepted as  
true - to establish the link between Mediakind and the other Defendants in this patent  
infringement suit.  
[53] The details of the agreement or agreements between the Defendants are not known to  
Rovi or this Court. However, Rovi pleads in relation to “Mediakind’s use, manufacturing,  
distributing, offering for sale, selling, supplying and otherwise making available Mediaroom and  
Mediafirst to Bell as part of its Fibe TV service”. Once again on its motion to strike, the  
Defendants must accept the truth of this pleading as to use, manufacturing and etc.  
[54] The issue before the CMJ was whether the pleadings provided sufficient material facts to  
enable the Defendants to file their Statement(s) of Defence. The CMJ found the pleadings were  
sufficient and dismissed the motion to strike. He also applied the correct test on the alternative  
Page: 24  
motion for particulars and dismissed that as well, finding in effect the Defendants may now  
properly defend.  
[55] Once again, I am asked to come to a different conclusion than the CMJ on the pleadings  
and particulars in this patent action. The findings of the CMJ are heavily factually suffused, and  
as noted above, such determinations by the CMJ are no longer reviewed by judges of this Court  
on a de novo basis. Instead, they are tested on the standard of palpable and overriding error.  
Equally importantly, the CMJ’s findings, are entitled to deference. I will give them such  
deference in this case.  
[56] I should add that here, and generally regarding section VI.A. above, Rovi’s counsel  
submitted the allegedly missing material facts on the “how” and “what” of the infringement are  
in fact pleaded through multiple paragraphs of the SOC: regarding the “what” at paragraphs 9 to  
12, 50 to 53, 57, 69; regarding direct infringement at paragraphs 72 to 74; regarding induced  
infringement at paragraphs 80, 82; and the “how” at paragraph 92. I am of the view they set out  
material facts relating to the claimed infringements.  
[57] Upon this review, given my findings above and the deference owed to the prothonotary in  
a case like this, I reiterate I am not persuaded the CMJ made any error or palpable and overriding  
error in dismissing the Defendants’ challenge to the pleadings. Therefore, the appeal in this  
respect is dismissed as well.  
Page: 25  
C.  
Striking the allegations of infringement by common design and agency  
[58]  
The Defendants also argue the allegations in the Plaintiff’s SOC concerning common  
design and agency should be struck.  
[59]  
With respect to common design, the Defendants ask the Court to strike for the reasons  
advanced by Videotron in Videotron’s related appeal “which are incorporated herein by  
reference”, see Bell Mediakind’s Memorandum at paragraph 37. To recall, in the Videotron file  
T-184-21, I found no merit in its request to strike the allegations of common design. I will repeat  
those Reasons here:  
[44] To start with, here are the CMJ’s actual reasons for not  
striking the common design pleadings as disclosing no reasonable  
cause of action:  
Page 5  
Infringement by common design arises where one  
party is found to be a joint tortfeasor when another  
party commits the tort in furtherance of a common  
plan. An essential element of the common design is  
that the parties must agree on a common action and  
the act of infringement must be in furtherance of  
that agreement. There must be a common design to  
do the act that is alleged to infringe.  
The leading authority on the tort of common design  
emanates from the UK Supreme Court. In Sea  
Shepherd UK v Fish & Fish Ltd, [2015] UKSC 10,  
the UK Supreme Court reviewed the principles of  
joint tortfeasance by common design. The Court  
observed:  
55. It seems to me that, in order for the  
defendant to be liable to the claimant in such  
circumstances, three conditions must be  
satisfied. First, the defendant must have  
assisted the commission of an act by the  
Page: 26  
primary tortfeasor; secondly, the assistance  
must have been pursuant to a common  
design on the part of the defendant and the  
primary tortfeasor that the act be committed;  
and, thirdly, the act must constitute a tort as  
against the claimant. …  
In Canada, this Court has considered common  
design for patent infringement in two cases:  
Packers Plus v Essential Energy, 2017 FC 1111  
[Packers Plus] and Genentech v Celltrion, 2019 FC  
293 [Genentech].  
In Packers Plus, the defendant supplied the system  
which, when used in open hole fracturing, fell  
within the relevant claims of the patent in suit. The  
defendant’s system was used by the company who  
owned and operated the wells for the fracturing  
operation. The defendant was also involved in pre-  
installation planning and design, assembling,  
installing, and operating the equipment, and  
providing an on-site supervisor. The Honourable  
Justice James O’Reilly held the defendant was not  
liable as a participant in a common design. He  
stated:  
Page 6  
48. In terms of liability for acting in concert  
with others, Packers has not pointed to any  
legal support for that theory of liability.  
Packers points to the well-known English  
case of Fabio Perini SPA v. LPC Group  
PLC, [2009] EWHC 1929 (Eng. Patents  
Ct.). There, Justice Floyd found that a  
company that installed a machine on the  
defendant's premises and enabled it to be  
operated according to the patented method  
was jointly liable with the defendant for  
infringement (at para 179). That finding was  
cited, in obiter, by Justice Johanne Gauthier  
in Bauer Hockey Corp. v. Easton Sports  
Canada Inc., 2011 FCA 83 (F.C.A.) at para  
75. However, there is no authority in  
Canadian law for the proposition that a  
person can be found liable for infringement  
on the theory of common design. At  
Page: 27  
common law, however, parties who act in  
concert to commit a tortious act can each be  
found liable if all of the parties involved  
arrived at an agreement to carry out the tort  
(Sea Shepherd UK v. Fish & Fish Ltd.,  
[2015] UKSC 10 (U.K. S.C.) at para 40).  
49. However, there is simply no evidence  
showing any such agreement between  
Essential and the other companies with  
whom it acted — operating companies,  
drilling companies, or fracturing companies.  
Therefore, Essential cannot be found liable  
for infringement based on a common design.  
[Emphasis added.]  
In Genentech, Her Honour Prothonotary Aylen (as  
she then was) found the plea of common design in  
relation to patent infringement to be sufficiently  
pleaded. She noted:  
40. This Court has previously held that  
while the concept of infringement by  
common design has not been applied in the  
context of a patent infringement action, its  
existence under Canadian law has been  
recognized. […]  
41. In Hoffmann-La Roche et al v. Sandoz  
Canada Inc (Order dated November 15,  
2018), I held that the use of the phrase  
“acting in concert” would fall within the  
concept of infringement by common design,  
as conceptually they are no different. As the  
claim was novel, I held that it should not be  
struck on a pleadings motion.  
42. In this case, the Plaintiffs seek to plead  
that CTHC was acting in concert with the  
Additional Defendants toward the common  
goal of bringing HERZUMA to market, with  
each of CTHC and the Additional  
Defendants undertaking various steps in  
furtherance of that common goal, as detailed  
in the pleading and noted, in part, above.  
Page: 28  
Page 7  
43. CTHC takes issue with the sufficiency of  
the material facts pleaded in the proposed  
amended pleadings, arguing that the  
proposed pleadings do not go far enough to  
particularize what acts each of CTHC and  
the Additional Defendants will do or have  
done in furtherance of the common design. I  
reject this assertion. I am satisfied that by  
delineating the roles of each of CTHC and  
the Additional Defendants in bringing  
HERZUMA to market, the Plaintiffs have  
pleaded a minimum level of sufficient  
material facts to support this cause of action  
against CTHC and so as to enable me to  
conclude that the proposed allegation is not  
doomed to fail. In reaching this finding, I am  
mindful that this allegation is premised, in  
large part, on acts that have not yet occurred,  
which is not surprising in an action under  
the Regulations. To require too high of a  
threshold for sufficient material facts in the  
circumstances would, in many  
circumstances, be unfair.  
44. I am also satisfied that the allegation of  
acting in concert should be permitted to  
move forward against CTHC  
notwithstanding that the Additional  
Defendants have not been joined to the  
actions, as there is nothing in the case law  
relied upon by the parties that suggests that  
all potential joint tortfeasors must be  
impleaded to sustain a cause of action  
against one of them. [Emphasis added.]  
In light of these authorities, the door is open to  
plead common design in a patent infringement  
action. That cause of action will not be struck.  
[45] With respect, I see no palpable error, let alone any palpable  
and overriding error, in either the CMJ’s statement of the legal test  
to determine if common design should be struck, or the  
consideration and application of the tests by the CMJ on the facts  
of this case.  
Page: 29  
[46] In citing Justice Manson’s Decision in La Rose at paragraph  
16, the CMJ concluded, correctly in my view, the test on a motion  
to strike for disclosing no reasonable cause of action “is whether it  
is plain and obvious that the pleadings disclose no reasonable  
cause of action, or that the claim has no reasonable prospect of  
success (Hunt v Carey Canada Inc, [1990] 2 SCR 959 at 980; R v  
Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 17 [Imperial  
Tobacco]). The threshold to strike a claim is high and the matter  
must proceed to trial where a reasonable prospect of success  
exists.” The parties agreed on this law.  
[47] It is not disputed that the burden was on Videotron to establish  
Rovi’s claim “has no reasonable prospect of success” per R v  
Imperial Tobacco Canada Ltd., 2011 SCC 42 at para 17 [Imperial  
Tobacco]. In this connection, the Supreme Court confirms there is  
a heavy burden on the moving party, stating “[t]he approach must  
be generous and err on the side of permitting a novel but arguable  
claim to proceed to trial,” per Imperial Tobacco at para 21.  
[48] Videotron agreed – as it must – that infringement by common  
design is recognized by the UK Supreme Court in Fish & Fish Ltd  
v Sea Shepherd UK, [2015] UKSC 10 [Sea Shepherd]. However,  
Videogtron submits common design in the UK only applies where  
a narrow set of defined requirements are met. Indeed, Videotron  
“accepts that, if material facts are provided for each requirement,  
this cause of action may be sustained in Canada at the pleading  
stage” [Emphasis in original], see para 47 of Videotron’s written  
submissions before this Court.  
[49] However, and citing to paragraph 58 of Sea Shepherd,  
Videotron submits a “primary tortfeasor” is a requirement of the  
tort of common design. In this case, Videotron says Rovi has not  
identified a primary tortfeasor directly infringing for the purposes  
of its “common design” allegations. Videotron therefore submitted  
the CMJ erred in allowing the common design cause of action to  
proceed.  
[50] In response, Rovi submits Videotron’s use of the term  
“primary tortfeasor” is not substantiated in the law. I agree. In this  
connection, Rovi points to paragraph 55 of Sea Shepherd where in  
fact Lord Neuberger did not use the term “primary tortfeasor” to  
mean the two parties to the common design each had to be  
independently tortious. Rather, the term “primary tortfeasor” is  
used to identify the party to the common design that joins the  
defendant in the tort (but is not named as a defendant).  
Page: 30  
[51] Notably, as set out at paragraph 38 of Sea Shepherd, Lord  
Sumption approvingly quotes Lord Neuberger from Vestergaard  
Frandsen A/S v Bestnet Europe Ltd, [2013] 1 WLR 1556 at para  
34: “in order for a Defendant to be party to a common design, she  
must share with the other party, or parties, to the design, each of  
the features of the design which make it wrongful. If, and only if,  
all those features are shared, the fact that some parties to the  
common design did only some of the relevant acts, while others  
did only some other relevant acts, will not stop them all from being  
jointly liable.” [Emphasis added]  
[52] Moreover, in Canadian jurisprudence the BC Supreme Court  
in ICBC v Stanley Cup Rioters, 2016 BCSC 1108 [ICBC], relies  
upon the principles set out in Sea Shepherd in considering the joint  
liability of tortfeasors. ICBC was cited approvingly by the  
Supreme Court of Canada, in Montréal (Ville) v Lonardi, 2018  
SCC 29 at paragraph 66, which described the holding as where  
tortfeasors: “had joined forces to flip a car over or had otherwise  
acted in concert with other individuals who were vandalizing a  
vehicle at the same time as them, the Court held them jointly  
liable.”  
[53] I note neither the Supreme Court of Canada nor the BC  
Supreme Court requires a “primary tortfeasor” who performed all  
acts necessary to damage any vehicle.  
[54] Therefore I reject Videotron’s argument that there is a  
requirement in Canadian and UK law for a “primary tortfeasor”,  
and its concomitant argument that a pleading of common design  
requires the identification of a “primary tortfeasor.”  
[55] Respectfully, I also agree with Rovi’s submission that the  
question of whether pleading common design discloses a valid  
cause of action is also not entirely at issue in this appeal. I say this  
because Videotron admitted at paragraph 47 of its memorandum  
“if material facts are provided for each requirement, this cause of  
action may be sustained in Canada at the pleading stage”.  
[56] To conclude on common design, I am unable to find either  
error, or palpable error, or palpable and overriding error in the  
statement of, or in the consideration and application by the CMJ of  
the La Rose principles on striking this pleading as disclosing no  
reasonable cause of action. The CMJ found the allegation of  
common design should not be struck and I agree with that  
determination. Thus, the appeal alleging infringement by common  
design discloses no cause of action is dismissed.  
Page: 31  
[60] As to agency, in fact the Defendants made no detailed submissions in their Memorandum  
or oral argument except as part of their submissions on direct infringement and infringement by  
inducement. It does not appear they dispute that infringement by agency is or may be a  
reasonable cause of action; rather it appears they allege a lack of material facts regarding agency  
in the SOC and schedules of particulars.  
[61] The CMJ dismissed all of the Defendants’ claims regarding the sufficiency of pleadings  
which of course included those related to agency as well as direct infringement and infringement  
by inducement.  
[62] The agency pleading is once again tied to Bell’s announcement of its agreement(s) with  
Mediakind, the contents of which are not known to Rovi. The CMJ was not persuaded to either  
strike or order further particulars with respect to agency any more than he was persuaded to do  
either regarding direct infringement or infringement by inducement. I am not persuaded the  
pleadings of agency in the SOC should be treated differently from those of direct infringement  
and infringement by inducement. Therefore, this aspect of the present appeal is also dismissed.  
VII. Conclusion  
[63]  
Bell Mediakind have failed to establish the CMJ made any error or palpable and  
overriding error in dismissing the motion to strike for lack of material facts, or in dismissing  
their request to remove Mediakind from the SOC, or in relation to the pleadings of common  
design and agency. The Defendants did not appeal the CMJ’s determination concerning  
particulars or otherwise. Therefore, this appeal will be dismissed.  
Page: 32  
VIII. Costs  
[64] The parties agreed at the hearing that the unsuccessful party should pay the successful  
party an all inclusive lump sum cost award of $3,500.00, which in my view is reasonable. I will  
therefore make such a cost award payable by the Defendants to the Plaintiff.  
Page: 33  
JUDGMENT in T-1184-21  
THIS COURT’S JUDGMENT is that:  
1 The Defendants’ appeal is dismissed.  
2 The Defendants shall pay to the Plaintiff an all-inclusive lump sum cost award of  
$3,500.00  
“Henry S. Brown”  
Judge  
FEDERAL COURT  
SOLICITORS OF RECORD  
T-1184-21  
DOCKET:  
ROVI GUIDES, INC. v BCE INC., BELL CANADA,  
BELL MEDIA INC., BELL EXPRESSVU LIMITED  
PARTNERSHIP, NORTHERNTEL., L.P.,  
STYLE OF CAUSE:  
TELEFONAKTIEBOLAGET L M ERICSSON,  
ERICSSON CANADA INC., MK SYSTEMS USA INC.,  
AND MK MEDIATECH CANADA INC.  
HELD BY WAY OF VIDEOCONFERENCE  
MAY 31, 2022  
PLACE OF HEARING:  
DATE OF HEARING:  
JUDGMENT AND REASONS:  
DATED:  
BROWN J.  
JUNE 30, 2022  
APPEARANCES:  
Sana Halwani  
Andrew Parley  
Kaitlin Soye  
Jim Lepore  
FOR THE PLAINTIFF  
Steven G. Mason  
Steven Tanner  
FOR THE DEFENDANTS  
Richard J. Lizius  
SOLICITORS OF RECORD:  
Lenczner Slaght LLP  
Barristers and Solicitors  
Toronto, Ontario  
FOR THE PLAINTIFF  
McCarthy Tétrault LLP  
Barristers and Solicitors  
Toronto, Ontario  
FOR THE DEFENDANTS  


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