7/2/2023 0 Comments Mediatube bell carpenter![]() 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. 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. 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). 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. Mediatube asked the appeal court to making a finding that Bell infringed the patent and award it damages, or grant it a new trial.īell is “confident the court of appeal will uphold the decision of the trial judge,” spokeswoman Michelle Michalak said in an email.Mediatube Corp. It also stated Locke erred in law and fact by permitting testimony and evidence that had been judicially excluded from the trial. In its grounds for appeal, it stated the trial judge made both legal and factual errors regarding the patent and its alleged use in Bell’s operating systems. In what Locke described as an “unusual development,” Mediatube acknowledged the evidence established that Bell didn’t infringe the patent.īut Mediatube believes Locke’s order should be set aside. His judgment noted that Mediatube walked back its most severe allegations throughout the trial.
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