By Ahmad Hathout
OTTAWA – The Federal Court of Appeal has granted Videotron an appeal that sought to implicate the third player in a case allegedly involving a trio of broadcasting companies that redistributed its channels in hotels without its consent.
Videotron appealed a decision by the Federal Court last April that found only two of three accused companies – Technologies Konek inc. and Coopérative de câblodistribution Hill Valley, but not Libeo – were involved in an illegal scheme that retransmitted a single Videotron signal to multiple hotel rooms over a period before February 2021, when Videotron first filed its $5-million lawsuit.
The Montreal telecom asked the appeal court to also hold liable Libeo, which allegedly provided decoders it rented from Videotron to use for the capture and communication of TVA Sports in the hotel rooms. Libeo was founded in 1996 to provide infrastructure for hosting servers and websites.
In a decision dated Wednesday, the Federal Court of Appeal said the lower court erred in its decision to not implicate Libeo based on insufficient evidence. The appeal court said in its decision that the lower court relied on testimony from Libeo executives who said the decoders were always paid by Konek and that Libeo was unaware of the existence of the decoders.
The appeal court found that the business relationship between Libeo and Konek was strong enough to discredit the basis for which the lower court disregarded Libeo’s involvement. Libeo founder Jean-Francois Rousseau and president Joe Bussiere held “overlapping roles within Libeo and Konek,” the appeal court said, adding Bussiere is a co-founder of Konek and Rousseau is a director and shareholder.
“Following a contract concluded with Konek in 2018, Libéo played an important role in the Konek company and knew when signing this contract that Konek was going to offer its television services using its infrastructure including video capture servers. Encoding,” the court found. “More specifically, following this contract, Libéo participated in the development of several aspects of Konek’s infrastructure, in return allowing Konek’s customers to have access to Konek services.”
“In this context, and given all of the evidence demonstrating the close ties between Libéo and Konek , it seems seriously difficult to me … to conclude that there is ‘no evidence that Libéo was aware of the precise use’ of the decoders [referencing lower court] and that it was therefore not actively involved in the communication of TVA Group Programs by telecommunication,” the appeal court added.
“On the contrary, and all things considered, it appears from all of the evidence that Libéo subscribed to Videotron’s television services through the rental of ILLICO decoders; it therefore receives the signal and retransmits it illegally, including TVA Group stations, on Konek services.”
