Over the years, the parties worked on commercializing the technology, first installing a prototype IPTV system in Ontario in 2004, which was later demonstrated to Bell. NorthVu, then known as Techbanc, acquired the technology and patent and began working alongside the inventor and a company called PureNet (which was acquired by MediaTube in 2009) to commercialize the technology in 2003, according to the complaint. The plaintiffs claim that Bell approached inventor Ross Jeffery in 1998 and signed a deal in 1999 while Jeffery was applying for a patent in the United States. The plaintiffs claim the defendants' "Bell Fibe TV," "Bell Aliant TV" and "FibreOp TV" services infringe upon their "Audio/Visual Signal Redistribution System." and NorthVu Inc., both based in Toronto, sued Bell Canada and Bell Aliant Regional Communications, in Federal Court. If Media Tube succeeded, it could recover from Bereskin (or its insurers) any amounts awarded against Media Tube in the Federal Court action and/or seek to have the Federal Court judgment set aside.(CN) - Two technology firms sued Bell Canada for $350 million in royalties, claiming it violated patent on Internet Protocol television technology.
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He went on to say that Media Tube still had the option of suing Bereskin “for negligence, breach of fiduciary duty, or both in the provincial superior court” where full discovery would be available.
In answer to Media Tube’s complaint that it needed to discover Bereskin in order to get all of the details, the judge observed (not surprisingly) that there is no provision for discovery before an appellate court.
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Justice Stratas was not satisfied that trial counsel knew of this work or that it would have been enough to constitute an actual conflict. Here, Bereskin had filed trademark applications for Microsoft. Media Tube needed to show:(1) the existence of an actual (not “apparent”) conflict and (2) and that the conflict adversely affected counsel’s performance at trial – it is not necessary to show that the outcome would have been different. Ineffective assistance of counsel is sometimes used in a criminal context – it is exceptionally rare to be found in civil cases. The Court of Appeal (Justice Stratas), on June 26, 2018, dismissed Media Tube’s motion. Media Tube also sought discovery of Bereskin & Parr in order to ascertain the full extent of the conflict. This apparent conflict caused Bereskin to “pull its punches” in its representation of Media Tube in order to avoid harming the business interests of Microsoft and advance those of Bereskin (keeping Microsoft happy as a client).
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According to Media Tube, Bereskin was concurrently acting for Microsoft whose software was used in the allegedly infringing system used by Bell. On its appeal, Media Tube (now represented by Aitken Klee) tried to amend its notice of appeal to add “ineffective assistance by trial counsel” as a ground of appeal. Media Tube lost at trial (decision dated January 4, 2017) and appealed. Bell Canada – Federal Court of Appeal – A company called Media Tube sued Bell Canada for patent infringement with respect to technology pertaining to Bell Fibe TV.
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