Court File No. 73592/04 ONTARIO SUPERIOR COURT OF JUSTICE MLC/kc B E T W E E N: MORRIS & CLAMAN ASSOCIATES LTD. carrying on business as VINE MAPLE MUSIC and ABSOLUTE PRODUCTIONS INC. carrying on business as COPYRIGHT MUSIC AND VISUALS Plaintiffs - and - THE CANADIAN BROADCASTING CORPORATION Defendant ----------------------- This is the Examination for Discovery of TONY AGOSTINI, produced and examined on behalf of the defendant herein, taken at the offices of VICTORY VERBATIM REPORTING SERVICES, 222 Bay Street, Suite 900, Ernst & Young Tower, Toronto-Dominion Centre, Toronto, Ontario, on the 15th day of March, 2006. ------------------------ A P P E A R A N C E S: KEVIN KEMP, ESQ. -- for the Plaintiffs LYLA SIMON, MS. -- for the Defendant

- i - INDEX OF PROCEEDINGS PAGE NUMBER TONY AGOSTINI, sworn Examination by: Mr. Kemp 1 - 195

- ii - INDEX OF EXHIBITS EXHIBIT PAGE NUMBER DESCRIPTION NUMBER 1 Defendant's Affidavit of Documents (Volume 1 of 2) 53 2 Defendant's Affidavit of Documents (Volume 2 of 2) 53 3 DVD entitled, "The Circus Is In Town, 50 Years of Hockey Night in Canada" (with DVD case) 69

- iii - INDEX OF UNDERTAKINGS REFERENCE PAGE QUESTION NUMBER NUMBER NUMBER 1. 5 23 2. 13 50 3. 14 53 4. 19 78 5. 23 93 6. 26 105 7. 31 129 8. 38 154 9. 41 167 10. 42 175 11. 104 397 12. 135 512 13. 140 533 14. 147 559 15. 149 564 16. 154 589 17. 156 597 18. 159 606 19. 161 616 20. 190 721 21. 190 722

- iv - INDEX OF UNDER ADVISEMENTS REFERENCE PAGE QUESTION NUMBER NUMBER NUMBER 1. 6 24 2. 11 43 3. 12 44 4. 12 45 5. 15 57 6. 16 61 7. 19 80 8. 20 82 9. 30 120 10. 32 135 11. 41 169 12. 41 170 13. 42 176 14. 42 177 15. 43 179 16. 45 191 17. 45 195 18. 46 200 19. 47 201 20. 47 204 21. 47 205 22. 48 210

- v - INDEX OF UNDER ADVISEMENTS REFERENCE PAGE QUESTION NUMBER NUMBER NUMBER 23. 48 211 24. 51 223 25. 144 544 26. 149 565 27. 150 567 28. 150 569 29. 151 570 30. 151 571 31. 151 574 32. 157 599 33. 161 619 34. 162 620 35. 164 629 36. 165 632 37. 191 722 38. 191 724

- vi - INDEX OF REFUSALS REFERENCE PAGE QUESTION NUMBER NUMBER NUMBER 1. 20 82 2. 21 85 3. 67 274 4. 67 275 5. 67 276 6. 77 298 7. 80 307 8. 81 316 9. 86 332 10. 86 334 11. 91 354 12. 94 363 13. 95 369 14. 114 435 15. 146 553 16. 191 723

T. Agostini - 1 1 TONY AGOSTINI, sworn 2 EXAMINATION BY MR. KEMP: 3 1. Q. Would you please state your full 4 name for the record? 5 A. My name is Tony Agostini. 6 2. Q. Mr. Agostini, I understand that you 7 are employed by the Canadian Broadcasting 8 Corporation? 9 A. Yes. 10 3. Q. How long have you been employed by 11 the CBC? 12 A. I have been employed at the CBC 13 since June of 1977, so I will be soon in my 29th 14 year. 15 4. Q. What is your present job title? 16 A. I am the senior director at TV 17 network sports. 18 5. Q. How long have you held that 19 particular position? 20 A. Nine years. 21 6. Q. Is there anyone at the CBC that you 22 report to as part of your duties? 23 A. Yes. 24 7. Q. Who is that? 25 A. Nancy Lee, who is the head of sport.

T. Agostini - 2 1 8. Q. Has that always been the case for 2 the past nine years? 3 A. No. 4 9. Q. Who did you report to prior to Ms. 5 Lee? 6 A. Alan Clark who was the former head 7 of sport. 8 10. Q. When did Mr. Clark depart or no 9 longer hold that position? 10 A. Probably around, I am going from 11 memory, three years ago, four years ago, something 12 like that. Three or four years ago. 13 11. Q. How long had Mr. Clark held that 14 position for? 15 A. He had been the head of sports... 16 again, I don't remember exactly, but probably 10 17 years or so. I mean, we can get you exact dates if 18 you need that. 19 12. Q. So he was the head of sport at the 20 time that the first agreement between CBC and the 21 plaintiffs was entered into? 22 A. Correct. 23 13. Q. In your present position, are you 24 responsible or in a supervisory capacity to any 25 individuals?

T. Agostini - 3 1 A. Yes. 2 14. Q. Perhaps you could outline for me the 3 structure of your department or your 4 responsibilities? 5 A. The department is one of the three 6 program components for CBC Television. Our 7 structure is Nancy Lee is the head of sport, I am 8 the senior director, her deputy. 9 From a management perspective we have, 10 currently, before changes which are coming as of the 11 1st of April, two other directors who are one in 12 charge of program operations and the other one in 13 charge of production resources. 14 And four executive producers who are each 15 responsible for their own program components. And 16 we all report to Nancy Lee. 17 Our structure is very simple. So it is a 18 management structure of Nancy Lee, Tony Agostini, 19 David Masse, Joe Sidoli and executive producers of 20 which there are four who are each in charge of their 21 respective programming components. 22 15. Q. How long has Mr. Masse held his 23 particular position? 24 A. About seven or eight years. 25 16. Q. Did he hold that position at the

T. Agostini - 4 1 time the first agreement between CBC and the 2 plaintiffs was entered into? 3 A. A variation of that position, but he 4 would not have been involved in the negotiations for 5 this agreement. 6 17. Q. I have seen his name in various of 7 the productions that your counsel has produced. Can 8 you describe for me what his involvement would be? 9 A. He does not produce any programming. 10 You may have seen his name in recent correspondence 11 on the MasterCard query. 12 18. Q. What does Mr. Masse do? What are 13 his responsibilities? 14 A. Well, he is taking on some 15 responsibilities that were some of my 16 responsibilities. So that was probably the reason 17 why you would have seen his name most recently. 18 But he will be assuming, as of the 1st of 19 April, the role of senior director of TV sports. 20 19. Q. Now, you mentioned a moment ago four 21 executive producers? 22 A. Yes. 23 20. Q. Who are they? 24 A. Joel Darling, who is the executive 25 producer for Hockey Night in Canada; Terry Ludwick,

T. Agostini - 5 1 who was the executive producer for the Olympics; 2 Trevor Pilling, who is in charge of CFL on CBC; and 3 Chris Erwin, who is in charge of Sports Saturday. 4 Those are our four executive producers. 5 21. MR. KEMP: Counsel, by way of a couple 6 of preliminary matters, I appear to be 7 missing, in Volume 2, those productions 8 from E2003, numbers 14 through 18. I am 9 wondering if you could pull those up and 10 perhaps when we have a break, I can... 11 MS. SIMON: Sorry, could you just say 12 that again? 13 22. MR. KEMP: Volume 2, tab E, which is 14 various communications in 2003, numbers 14 15 through 18. 16 MS. SIMON: Yes, I will look into that 17 as soon as we have a break. 18 23. MR. KEMP: And just in the event that I 19 forget later on, perhaps I could have an 20 undertaking to produce those documents in 21 due course. 22 MS. SIMON: I will have a look and see 23 what they are. If they are listed, of 24 course we will produce them to you. U/T 25

T. Agostini - 6 1 24. MR. KEMP: Thank you. I would also ask 2 for an undertaking to produce a detailed 3 Schedule B. 4 For example, I note that aside from 5 communications involving my client, where 6 Nancy Carrell was copied on, I do not have 7 copies of any internal documents, of 8 communications that might have taken place 9 between Mr. Agostini and Ms. Carrell or Ms. 10 Lee and Ms. Carrell. 11 And to the extent that you are 12 asserting claims of privilege over any such 13 documents, I would ask you for a detailed 14 or particularized Schedule B which outlines 15 the date of the communication, the parties 16 to the communication, the substance of what 17 has been discussed and the reason for any 18 privilege being asserted. 19 MS. SIMON: I will take that under 20 advisement. U/A 21 22 BY MR. KEMP: 23 25. Q. Now, in the course of reviewing your 24 productions, I have identified a number of other 25 individuals that appear to have been copied on

T. Agostini - 7 1 different communications. 2 I am going to say their name and I would 3 ask if you could please identify if you know them, 4 identify whether they are employees of CBC and if 5 so, what position they hold, and I may have 6 follow-up questions arising from that. 7 A. Sure. 8 26. Q. The first is Bill Atkinson? 9 A. Bill Atkinson, I think his current 10 title is executive director of business development 11 for the CBC and he is still an employee of the CBC. 12 27. Q. How long has he held that position 13 for? 14 A. I think probably...I mean, I don't 15 remember exactly... 16 MS. SIMON: If you are not sure, 17 don't... 18 THE DEPONENT: Well, I am not sure. 19 About four years or so, but I am not sure. 20 21 BY MR. KEMP: 22 28. Q. Was he employed by CBC prior to this 23 current position? 24 A. Yes, he is a CBC employee. 25 29. Q. What did he do before his most

T. Agostini - 8 1 recent title? 2 A. He was the director of finance for 3 CBC Television. 4 30. Q. As it relates to the current 5 position, do you have any idea or understanding as 6 to what his job entails and what responsibilities he 7 has? 8 A. Yes. 9 31. Q. Can you explain or describe those? 10 A. Well, generally speaking, Bill would 11 be responsible for...was responsible for, he may not 12 be responsible for it as much in his current 13 portfolio, because of the business development 14 portfolio that he is dealing with now is more 15 corporate than just for English television. 16 But relative to this file, he would have 17 been responsible for some discussions with regards 18 to further use of NHL or Hockey Night in Canada 19 programming. 20 32. Q. Would that, by its very nature, 21 involve the Hockey Night in Canada theme, as well? 22 A. Because the Hockey Night in Canada 23 theme is part of Hockey Night in Canada, and he is 24 involved in that, yes. 25 33. Q. Who would he report to in that

T. Agostini - 9 1 capacity or in that context? 2 MS. SIMON: Sorry, may I interject for a 3 moment? Do you mean currently, in his 4 current position? Because now we have 5 discussed his current and previous 6 positions. 7 34. MR. KEMP: No, I said in the context or 8 in the capacity that Mr. Agostini just 9 referred to, involving Hockey Night in 10 Canada, which I understood to be the 11 previous position. 12 THE DEPONENT: Yes. I think under that 13 scenario he would have reported to the 14 executive vice-president of CBC Television 15 Harold Redekopp. 16 17 BY MR. KEMP: 18 35. Q. Did someone take his old job? 19 A. Yes. 20 36. Q. Who was that? 21 A. Claude Gallipeau. But Claude 22 Gallipeau is no longer with the CBC. 23 37. Q. Did somebody take Mr. Gallipeau's 24 position? 25 A. Yes.

T. Agostini - 10 1 38. Q. Who? 2 A. Krista Harris. She was appointed 3 two weeks ago or so. 4 39. MR. KEMP: Counsel, can I have an 5 undertaking to provide the last known 6 address of each of Mr. Atkinson and Mr. 7 Gallipeau? 8 MS. SIMON: No. 9 40. MR. KEMP: The reason for the refusal? 10 MS. SIMON: The reason for the request? 11 41. MR. KEMP: Well, these individuals, at 12 least in the case of Mr. Atkinson, is 13 clearly involved in some of the matters 14 that relate to the issues in this legal 15 proceeding. He is copied or an active 16 participate in various e-mail 17 communications. 18 As such, he has knowledge, 19 information and belief related to the 20 matters in issue. 21 It may be that he is not always 22 employed by the CBC, and in which case, you 23 would have no power to agree to serve him 24 with a summons on my behalf at the point of 25 trial.

T. Agostini - 11 1 Therefore, I am asking for his last 2 known address so that if that becomes 3 necessary, I will be able to arrange for 4 the service of the summons. 5 MS. SIMON: If that becomes necessary, 6 we will make those arrangements. 7 42. MR. KEMP: What do you mean? What 8 arrangements will you make? You will give 9 me the last known address or you will agree 10 to compel his attendance? 11 MS. SIMON: Well, if it should come to 12 pass that he is no longer with the CBC, in 13 terms of Bill Atkinson. 14 In terms of Claude Gallipeau, we 15 will find a way of making sure he is 16 summonsed for trial, if you wish to call 17 him as a witness. 18 43. MR. KEMP: I believe I am still entitled 19 to have his last known address for that 20 very reason. 21 MS. SIMON: Well, I will take that under 22 advisement in that case. U/A 23 44. MR. KEMP: And similarly, I would ask 24 for the last known address of Mr. Atkinson. 25 MS. SIMON: The same answer, under

T. Agostini - 12 1 advisement. U/A 2 45. MR. KEMP: And to the extent that Mr. 3 Agostini or Ms. Lee are no longer employees 4 of the CBC at the time of trial, I would 5 ask for their last known address. 6 MS. SIMON: You have the same answer 7 from me. U/A 8 9 BY MR. KEMP: 10 46. Q. Now, I have also seen reference to 11 an individual by the name of Karen Bower; do you 12 know who that is? 13 A. Yes. 14 47. Q. Is she an employee of CBC? 15 A. Yes. 16 48. Q. What is the nature of her employment 17 at present? 18 A. She is with the merchandising 19 division. I am not exactly sure what her title is, 20 but she is a manager of development of products for 21 CBC, merchandising division, and I think she is 22 still holding that position or a variation of that 23 position. 24 49. Q. Do you know how long she has held 25 that position?

T. Agostini - 13 1 A. No. 2 50. MR. KEMP: Counsel, may I have an 3 undertaking for those inquiries to be made? 4 MS. SIMON: Yes, you have my undertaking 5 to find out how long Karen Bower has been 6 employed by the CBC or in her current 7 position. U/T 8 51. MR. KEMP: Yes. And if she was employed 9 by the CBC in a different position at any 10 point in time from 1997 to the present 11 time, I would ask for details as to the 12 specific positions she had. 13 MS. SIMON: Why don't you ask the 14 witness that question first? I don't 15 believe he has answered that he doesn't 16 know the answer to that; is that correct? 17 52. MR. KEMP: Well, he indicated that he 18 didn't know how long she has been in her 19 current position. 20 THE DEPONENT: Well, you are asking me 21 exactly. 22 MS. SIMON: Why don't you put the 23 question to him first. 24 53. MR. KEMP: That is why I asked your 25 Counsel instead of you.

T. Agostini - 14 1 MS. SIMON: Why don't you ask him 2 whether he knows what other positions she 3 has held in the past. 4 THE DEPONENT: I actually don't know 5 what other positions she has had in the 6 past. 7 MS. SIMON: That is fine. Then you have 8 our undertaking to find out, first of all, 9 how long she has been employed at the CBC 10 and an undertaking to find out what 11 positions she held prior to her current 12 position. U/T 13 14 BY MR. KEMP: 15 54. Q. Can you tell me what your 16 understanding is as to the nature of her job and her 17 duties and responsibilities? 18 A. I can tell you that, in general 19 terms, part of her responsibilities would be to 20 develop products for the merchandising division. 21 55. Q. Are we talking about things like 22 T-shirts and coffee mugs? 23 A. Yes, it could be that. It could be 24 recordings, it could be DVDs, CDs for radio. I 25 think her background may have been actually in CBC

T. Agostini - 15 1 Radio. 2 That kind of stuff. For the use of program 3 material. She may have actually worked in...but I 4 am speculating, so I am not going to say. That is 5 part of what she does. 6 56. Q. That would be corporation-wide? 7 A. Mainly for English television or for 8 English services. That is, either English radio or 9 English television. I don't think that she would be 10 doing many products for French television or French 11 radio. 12 57. MR. KEMP: May I have an undertaking to 13 have her last known address? 14 MS. SIMON: You have the same answer 15 from me as with the previous parties; 16 under advisement. U/A 17 18 BY MR. KEMP: 19 58. Q. I also saw reference to an 20 individual by the name of David Hainline? 21 A. Yes. 22 59. Q. Do you know who that is? 23 A. I do. 24 60. Q. Was he employed or is he employed by 25 CBC?

T. Agostini - 16 1 A. Was. He is no longer employed by 2 CBC. 3 61. MR. KEMP: I might as well get it out of 4 the way at this juncture. May I have his 5 last known address, please? 6 MS. SIMON: Under advisement. U/A 7 8 BY MR. KEMP: 9 62. Q. When did he cease to be employed by 10 CBC, approximately? 11 A. Approximately two years ago or three 12 years ago. It was two or three years ago. 13 63. Q. And at the time of his departure, do 14 you know what specific job title he held? 15 A. I think he was president of the 16 merchandising division. 17 64. Q. Was that an individual to whom Karen 18 Bower would have likely reported? 19 A. Yes. 20 65. Q. Do you know how long he had held 21 that position? 22 A. Before he left? 23 66. Q. Yes. 24 A. I think approximately two years or 25 so.

T. Agostini - 17 1 67. Q. Had he been employed by CBC prior to 2 that specific position? 3 A. No. 4 68. Q. Can you tell me what you understood 5 as to his job responsibilities? 6 A. Simply, it was a new initiative by 7 the organization to try to look for further use. 8 T-shirts, Hockey Night in Canada sweaters, programs, 9 to try to use some of our products, some of our 10 shows and market them to the public. This was, as I 11 say, a very new initiative. 12 69. Q. Who would he have reported to? 13 A. I think his reporting line was to 14 the vice-president who would have had under his 15 responsibility, business development. I think it 16 was Michele Tremblay. He reported to Michele 17 Tremblay. 18 70. Q. Now, who is Dan Henry? 19 A. I thought everybody knew Dan Henry. 20 71. Q. I saw him on one of your videos, I 21 believe. 22 A. I don't know what videos you watch. 23 Dan Henry is a senior counsel at the CBC. He is a 24 lawyer who works for the CBC as part of the legal 25 department of the CBC.

T. Agostini - 18 1 72. Q. How long has he held that position? 2 A. I don't know. Many, many years, but 3 I can't tell you how many years he has worked at the 4 CBC. 5 73. Q. Did he work in connection with Nancy 6 Carrell or report to Nancy Carrell or did Ms. 7 Carrell report to him? 8 A. My understanding is that Danny 9 reported to Nancy Carrell. She was the assistant 10 general counsel for the corporation. And the 11 Toronto office reported to Nancy. 12 74. Q. He remains employed by CBC? 13 A. Yes. 14 75. MR. KEMP: Counsel, do you have any 15 witness statements with respect to any of 16 the individuals we have mentioned so far 17 today? 18 MS. SIMON: I do not. 19 76. MR. KEMP: Do you have summaries of the 20 knowledge, information and belief of the 21 various individuals with respect to the 22 issues raised in the legal proceeding? 23 MS. SIMON: No. 24 77. MR. KEMP: Do you have any knowledge, 25 and I know it is early at this stage, as to

T. Agostini - 19 1 who you plan on calling as witnesses at 2 trial? 3 MS. SIMON: Not at this time. 4 78. MR. KEMP: Will you advise, when you 5 make that determination and provide a 6 summary of the evidence of the witnesses 7 you intend to call? 8 MS. SIMON: Of course. U/T 9 79. MR. KEMP: And will you agree to do that 10 in a reasonable time in advance of trial, 11 and I will do it mutually, let's say 90 12 days? 13 MS. SIMON: We will comply with the 14 Rules, yes. 15 80. MR. KEMP: As I understand it, there is 16 no longer a Rule requiring that the witness 17 summaries be exchanged in advance of trial. 18 So I hear your answer and I am 19 suggesting that we agree mutually to 20 provide summaries of witnesses that we 21 intend to call at trial 90 days in advance 22 of trial; will you agree? 23 MS. SIMON: I will think about it. U/A 24 25 BY MR. KEMP:

T. Agostini - 20 1 81. Q. Who is Lucy Collin? 2 A. Lucy Collin was...and I am not sure, 3 I think she has left the company...was a person who 4 worked in sales or marketing at CBC. 5 82. MR. KEMP: I would ask for the last 6 known address of each of Ms. Collin and Mr. 7 Henry. 8 MS. SIMON: I refuse with respect to Mr. 9 Henry. He gives us our instructions on /R 10 this file and wouldn't be an appropriate 11 witness. Lucy Collin, I will take under 12 advisement as I have for the others. U/A 13 83. MR. KEMP: Well, was Mr. Henry involved 14 in the negotiations of any of the 15 transactions between the plaintiffs and 16 CBC? 17 MS. SIMON: My understanding is yes. 18 84. MR. KEMP: And in those circumstances, I 19 would like to know...I would like 20 production of his file with respect to the 21 negotiations, not obviously with respect to 22 any instructions that he provides to you, 23 but with respect to the negotiations. 24 MS. SIMON: I believe that we have 25 produced everything to you that is relevant

T. Agostini - 21 1 to the file or to the litigation. 2 85. MR. KEMP: I think we have fundamentally 3 different views in that regard. But let me 4 ask for that undertaking, in any event. 5 I would like production of Mr. 6 Henry's entire file with respect to the 7 negotiation phase of the agreements between 8 CBC and the plaintiffs. 9 MS. SIMON: I refuse. /R 10 86. MR. KEMP: The basis for the refusal? 11 MS. SIMON: I just gave it to you a 12 moment ago. 13 87. MR. KEMP: No, you said that he is 14 presently instructing counsel. That 15 doesn't mean that there is some...are you 16 asserting a privilege claim over his 17 involvement in the negotiations? 18 MS. SIMON: That is not what I am 19 referring to. What I am referring to is 20 the fact that we have produced everything 21 to be viewed as relevant. 22 88. MR. KEMP: Well, then, where is Mr. 23 Henry's file, because I don't have it. 24 MS. SIMON: Well, you have my position. 25 89. MR. KEMP: Except I am not here to

T. Agostini - 22 1 search in the dark for what relevant 2 documents, nor am I expected to accept your 3 position as to what is and is not relevant. 4 So if there are documents, I am entitled to 5 know what they are, even if privilege is 6 being claimed. 7 And the difficulty I have is you 8 refuse to provide me an undertaking to 9 particularize Schedule B. 10 So I can't be expected to ask 11 questions here in the dark, when it is 12 clear that I don't have the files of all of 13 these various individuals. 14 MS. SIMON: What is it that you would be 15 looking for, exactly? 16 90. MR. KEMP: I don't know. 17 MS. SIMON: Well, your client was party 18 to the negotiations. 19 91. MR. KEMP: You indicated to me that Mr. 20 Henry was involved in the negotiations. 21 MS. SIMON: That is my understanding. 22 92. MR. KEMP: I haven't seen any of the 23 contents of his file. It is not 24 necessarily going to be that everything he 25 has is going to be in Mr. Ciccone's file.

T. Agostini - 23 1 MS. SIMON: Well, I think insofar as it 2 is not solicitor/client privileged, it has 3 been produced to you in terms of drafts of 4 the licence agreement, drafts of the sink 5 agreement, that type of thing. 6 93. MR. KEMP: However, if you are asserting 7 that, I am entitled to know that you are 8 asserting a claim of privilege over the 9 contents of his file. So if you could let 10 me know that, I would appreciate it. 11 MS. SIMON: Sure, I will give you our 12 position. U/T 13 94. MR. KEMP: Similarly, I do not appear to 14 have the contents of any of Ms. Carrell's 15 files. Are you asserting privilege over 16 her files? 17 MS. SIMON: I take the same position 18 with respect to hers, that is right. 19 95. MR. KEMP: You are asserting what kind 20 of privilege, solicitor/client? 21 MS. SIMON: Well, as I say, my 22 understanding is that anything that is 23 relevant in terms of the negotiations has 24 been produced to you. And, furthermore, 25 your client was party to those negotiations

T. Agostini - 24 1 at all times. 2 96. MR. KEMP: Have you, as part of the 3 litigation, reviewed files from Ms. 4 Carrell? Does such a thing exist? I guess 5 I should ask that of Mr. Agostini. 6 THE DEPONENT: M'hmm. 7 8 BY MR. KEMP: 9 97. Q. There is a file of Ms. Carrell? 10 A. I assume that Ms. Carrell had a 11 file. 12 98. Q. In fact, that would be consistent 13 with standard CBC practice, as far as you know it? 14 A. Yes. But, in my opinion, anything 15 that had to do, that I recall, having to do with 16 this file, is in the binders that we have provided 17 you and if something is not there, then I am not 18 aware of it. 19 I just wanted to point out for the record 20 that Nancy Carrell has passed away. I think it is 21 important to say that. 22 99. Q. I understand that, and I was sorry 23 to hear that. At some point in time, did Ms. 24 Carrell stop working because of illness? 25 A. Yes.

T. Agostini - 25 1 100. Q. When did she stop active day-to-day 2 employment duties for CBC? 3 A. Well, she really tried to keep her 4 files as long as she could. My recollection is that 5 she got quite ill around the fall of, I think it was 6 2004. 7 And then by January of 2005, she had left, 8 with the hope that she would get better and was 9 seeking treatment. And then she passed away, I 10 think it was in May or so of 2005. 11 So, you know, not to put too fine a point 12 on it...and she was a critical part of this file. 13 She worked very hard to try and resolve this file. 14 101. Q. Well, I agree with your assessment 15 that she was a critical part. Actually, it was she 16 who I wished to examine for discovery, so I 17 certainly recognize that. What was her job title? 18 A. She was assistant general counsel 19 for the CBC. 20 102. Q. Do you know how long she had held 21 that position for? 22 A. Not exactly, approximately. I think 23 she was at the CBC for five years or so, all tolled, 24 in her career at the CBC. 25 Again, I am going from memory, because I

T. Agostini - 26 1 didn't come here with dates of how long people 2 worked at the CBC. 3 103. Q. Fair enough, and I am not looking 4 to... 5 A. But, of course, that is information 6 that is available. 7 104. Q. Can you let me know? 8 MS. SIMON: Her length of service at the 9 CBC? 10 105. MR. KEMP: When she assumed her duties 11 at CBC? 12 MS. SIMON: Yes. U/T 13 14 BY MR. KEMP: 15 106. Q. Did she have a predecessor in that 16 position? 17 A. I am thinking about that and I do 18 not recall that. You know, there was a change...we 19 had a new vice-president in charge of legal affairs, 20 the structure may have changed somewhat. I don't 21 recall who was acting as assistant general counsel 22 before Nancy Carrell. 23 107. MR. KEMP: Again, to the extent that you 24 are asserting a claim of privilege over the 25 contents of Ms. Carrell's files, I would

T. Agostini - 27 1 like to know about it. 2 And to the extent such a claim is 3 being advanced, I would like to know the 4 dates of any correspondence, memos, e-mail 5 communications, the parties to such 6 communications and the subject matter of 7 such communications, as it relates to the 8 matters in issue in the legal proceeding. 9 MS. SIMON: I understand that that is 10 what you would like and I know that that 11 forms the basis of your request for the 12 detailed Schedule B and I have given you my 13 position and I have given you a two-pronged 14 answer, which I am not sure you have 15 repeated just now in your request, which is 16 that the parts that are privileged have not 17 been produced. And otherwise, my 18 understanding is that all the relevant 19 documentation is before you. 20 108. MR. KEMP: That is nice for you say, but 21 I don't accept it and I am entitled to know 22 what is there. With reference to the 23 Affidavit of Documents, it doesn't look 24 like there is any privileged documents, 25 because certainly there is nothing listed.

T. Agostini - 28 1 If you are asserting it, I am 2 entitled to know about it and I would ask 3 for the undertaking on that basis with the 4 kind of detail that I have requested. 5 Because Ms. Carrell was clearly 6 intimately involved in the vast majority of 7 the issues related to the theme. 8 MS. SIMON: Well, you have my answer, so 9 I don't think there is any point in going 10 over it too many times. 11 109. MR. KEMP: That was a new question. So 12 I have to make certain for purposes of my 13 Motion that everything is clear on the 14 record. 15 MS. SIMON: Well, if I am not mistaken, 16 you had already asked moments before 17 regarding both Dan Henry's file and Nancy 18 Carrell's files. So my position remains 19 consistent. 20 110. MR. KEMP: So you are refusing to 21 provide me with that kind of summary? 22 MS. SIMON: I have given you an under 23 advisement. 24 111. MR. KEMP: That is a refusal, you agree? 25 MS. SIMON: You are not here to question

T. Agostini - 29 1 me, you are here to question the witness. 2 112. MR. KEMP: So we are clear on the 3 understanding, under advisement is a 4 refusal; right? It is certainly going to 5 belabour the process if I can't get a 6 single thing that I am entitled to by way 7 of undertaking. In any event, we will 8 carry on. 9 10 BY MR. KEMP: 11 113. Q. Do you know Mr. Shannon? 12 A. John Shannon? 13 114. Q. Yes. 14 A. You do know John Shannon? 15 115. Q. Not personally, I have heard of him, 16 unlike Mr. Henry, who I had not heard of. I 17 understand that he left CBC? 18 A. Yes. 19 116. Q. When did he leave? 20 A. He left about...I don't remember 21 exactly, about four years ago or so. We have to 22 check the dates. 23 117. Q. What was his job title or job 24 description at the time of his departure? 25 A. He was the executive producer of

T. Agostini - 30 1 Hockey Night in Canada. 2 118. Q. Do you know approximately how long 3 he had held that position? 4 A. Depending on when he left, four to 5 five years or so. 6 119. Q. May I have his last known address? 7 MS. SIMON: The same answer. 8 120. MR. KEMP: Well, rather than a Master 9 having to refer back to things, why don't 10 we just say "under advisement"? 11 MS. SIMON: Under advisement. U/A 12 121. MR. KEMP: Thank you. 13 14 BY MR. KEMP: 15 122. Q. Do you know who Cindy Roy is? 16 A. Yes, she works in music clearance at 17 CBC. 18 123. Q. Do you know her formal title or 19 specific... 20 A. No, I don't. 21 124. Q. Do you have any understanding as to 22 what her job or duties would entail? 23 A. Well, generally speaking, without 24 getting into the details of her job description, 25 which I...I know that part of her responsibilities

T. Agostini - 31 1 include clearing music for CBC Television programs. 2 125. Q. Would that include the Hockey Night 3 in Canada theme... 4 A. Yes. 5 126. Q. ...written by Dolores Claman? 6 A. Yes. 7 127. Q. Does she still remain employed by 8 CBC? 9 A. Yes. 10 128. Q. How long has she been employed in 11 the music clearing division? 12 A. I don't know. 13 129. MR. KEMP: Counsel, are you able to 14 advise? 15 MS. SIMON: I do not know. I can give 16 you an undertaking to find out. U/T 17 130. MR. KEMP: Thank you. 18 19 BY MR. KEMP: 20 131. Q. Now, there are also e-mail 21 communications in the file authored by Paul 22 Harrington, who I did see on The Circus Is In Town 23 video, I believe? 24 A. Yes. 25 132. Q. Can you tell me who he is?

T. Agostini - 32 1 A. Paul worked for us as a senior 2 producer, producing documentaries. 3 133. Q. Does he remain employed by CBC? 4 A. No, he has left the corporation, 5 probably a year-and-a-half ago. 6 134. Q. How long had he been employed by the 7 corporation, approximately? 8 A. I would say more than 25 years. 9 135. Q. May I have his last known address? 10 MS. SIMON: Under advisement. U/A 11 12 BY MR. KEMP: 13 136. Q. Tell me about how things would work 14 at CBC, as part of your job, when an issue arose 15 with the Hockey Night in Canada theme? 16 I am speaking specifically, vis-a-vis any 17 communications you might have had with either Ms. 18 Lee or Ms. Carrell. 19 Would you pick up a telephone or would you 20 write memos to one another, would you send e-mails? 21 Was there any kind of structure in place? 22 A. I am not sure I understand what your 23 question is. 24 137. Q. I will give you a hypothetical, 25 then. John Ciccone calls you or sends you an

T. Agostini - 33 1 e-mail, he is upset about a use that he believes is 2 not authorized. 3 A. Yes. 4 138. Q. I get the impression that you would 5 more often than not be one of the first people to 6 hear about that; correct? 7 MS. SIMON: Just a moment. I am not 8 having the witness answer hypotheticals. 9 139. MR. KEMP: I am not asking him a 10 hypothetical. I am asking a hypothetical 11 scenario in an effort to understand how the 12 departments and the communications between 13 those various departments and individuals 14 that were employed by CBC worked. 15 MS. SIMON: Your very wording was that 16 you were presenting the witness with a 17 hypothetical. 18 So I would prefer it if you would be 19 able to direct him either to specific 20 events, specific documents or an instance 21 that you have in mind, so that he can give 22 you a precise answer to the question that 23 you have. 24 Unless you want to ask him about his 25 particular usual practice and then give an

T. Agostini - 34 1 instance, but I don't want him 2 hypothesizing about how things worked, 3 quote, unquote. 4 5 BY MR. KEMP: 6 140. Q. In your usual practice, in your job 7 and when Ms. Carrell was still actively at work, 8 would you speak with her on a daily basis? 9 A. No. 10 141. Q. How often would you speak with her? 11 A. It depended on the file. I mean, we 12 worked together on a number of different things. So 13 our discussions could have been...if we were 14 involved together on a file which had to be 15 resolved, there could be daily discussions and 16 sometimes more than daily discussions. 17 In other times, we could go weeks without 18 talking about business, but just...she would come 19 and visit and we would just talk about, you know, 20 whatever she was involved with at that time. So 21 there is no way that it was daily. 22 142. Q. Is it fair to say that you had many 23 discussions with Ms. Carrell concerning the Hockey 24 Night in Canada theme? 25 A. Yes.

T. Agostini - 35 1 143. Q. Would these conversations or 2 discussions take place...would they be personal 3 meetings, where one of you drops by the other's 4 office, or would there be more formal meetings, 5 would there be telephone calls? 6 A. It was often a telephone 7 conversation. It was meetings, she would come to my 8 office, I would go to her office. 9 There would be exchange of correspondence 10 if required. But, you know, we worked on many, many 11 files. So it is not as if, you know, we were 12 focusing just on one. But that would be the type of 13 exchange that we would have. 14 144. Q. Were you located in the same 15 building, your offices? 16 A. Yes. 17 145. Q. The same floor? 18 A. No. 19 146. Q. Would you make notes of any of these 20 conversations? 21 A. I don't recall making a lot of notes 22 about conversations. I mean, if there were 23 follow-ups that we needed to do, we would do it on 24 e-mail. And I think the correspondence in the files 25 demonstrate that.

T. Agostini - 36 1 147. Q. Except I have seen e-mail between 2 yourself and Mr. Ciccone, where Ms. Carrell is 3 copied and various permutations of that. 4 But I haven't seen any e-mail 5 communications between yourself and Ms. Carrell, 6 just the two of you. 7 MS. SIMON: Those may have been held 8 back as solicitor/client privilege. I am 9 not sure myself. 10 148. MR. KEMP: If that is the case, I am 11 entitled to at least know what they are and 12 what the topic is and what the subject 13 matter is and when they were made. 14 15 BY MR. KEMP: 16 149. Q. What about communications with Ms. 17 Lee? 18 A. Yes. 19 150. Q. Would you communicate with her 20 frequently, related to the Hockey Night in Canada 21 theme and issues that arose with that? 22 A. Well, Nancy and I talk, we talk all 23 the time about a multitude of issues. 24 151. Q. Are you on the same floor? 25 A. We are next door to each other.

T. Agostini - 37 1 When the Hockey Night in Canada theme was something 2 that we are dealing with, we would talk about it. 3 But we deal, we talk about a multitude of 4 things, because our files are...there are many 5 files, we had to do a lot of programming, and so 6 there are a lot of issues to deal with. The Hockey 7 Night in Canada theme was one of those. 8 152. Q. I am going to in a moment continue 9 with more names that I have come across in the file. 10 However, one of the things I did notice in the 11 production, was your counsel provided me with 12 several tapes. 13 The Statement of Claim alleges that there 14 are a variety of curling programs, I believe in 15 2003, where the theme was used. 16 I do not have any tapes of those, and I am 17 wondering if you will undertake to produce copies. 18 MS. SIMON: Can we go off a minute? 19 153. MR. KEMP: Sure. 20 21 --- DISCUSSION OFF THE RECORD 22 23 154. MR. KEMP: I have asked for an 24 undertaking to produce the curling 25 broadcasts that are referenced in the

T. Agostini - 38 1 Statement of Claim, I believe, for the year 2 2003. And I understand, Counsel, that you 3 have agreed to give that undertaking? 4 MS. SIMON: You have my understanding. 5 So long as we have such tapes, absolutely 6 we will provide copies to you. U/T 7 155. MR. KEMP: Or if the Statement of Claim 8 happens to refer to the wrong year and it 9 is 2002, will I have that undertaking? 10 MS. SIMON: Yes. 11 12 BY MR. KEMP: 13 156. Q. Mr. Agostini, just for the purposes 14 of clarity, do I understand correctly that tapes of 15 all CBC programming are preserved for a certain 16 period of time? 17 A. Yes. 18 157. Q. So those tapes for the curling 19 broadcasts will exist? 20 A. Yes. 21 158. Q. Now, are you aware of the Hockey 22 Night in Canada theme having been used as an intro 23 to any of the curling broadcasts in 2003? 24 A. No. If anything, if it was a sports 25 broadcast which was promoting Hockey Night in Canada

T. Agostini - 39 1 coming up tonight, or someone from Hockey Night in 2 Canada appearing on the curling broadcast, that is 3 possible. But it is part of the promotion of Hockey 4 Night in Canada. 5 But to my knowledge, there was no...we 6 would not be using the Hockey Night in Canada theme 7 as part of a theme for curling broadcasts. Curling 8 has its own music. 9 159. Q. So to your knowledge, it was never 10 used for that purpose, for the intro to a curling... 11 A. Listen, I don't know for sure that 12 something...but it would have been themed to Hockey 13 Night in Canada. There is no reason for us to use 14 the Hockey Night in Canada theme as part of the 15 theme to a curling broadcast. 16 160. Q. Is it your position, then, that any 17 such use would not be authorized, pursuant to the 18 terms of the two licence agreements? 19 MS. SIMON: Instead of engaging in 20 hypotheticals, why don't we have... 21 161. MR. KEMP: I am not engaging, I am 22 telling you that I saw it. 23 MS. SIMON: That very well may be, but 24 you are not under oath giving evidence here 25 today. So I am not really interested in

T. Agostini - 40 1 what you saw or didn't see. Why don't 2 we... 3 162. MR. KEMP: No, but you haven't produced 4 it. 5 MS. SIMON: Excuse me. Why don't we 6 fulfil the undertaking, at which time we 7 can ascertain whether there were alleged 8 breaches and then we can have a discussion 9 about that. 10 163. MR. KEMP: Is there a reason I don't 11 have it now? 12 MS. SIMON: Oversight. 13 14 BY MR. KEMP: 15 164. Q. Do you know who Ken Lydfor is? 16 A. I know who he is, yes. He works in 17 sales and marketing. 18 165. Q. Do you know how long he has been in 19 that position? 20 A. I don't. 21 166. Q. Do you have any understanding or 22 knowledge of his duties? 23 A. Generally speaking, he works in 24 sales and marketing and he is involved with sales 25 and marketing initiatives for CBC sales.

T. Agostini - 41 1 167. MR. KEMP: Counsel, could you please 2 provide a description of Mr. Lydfor's job, 3 together with a summary of any knowledge, 4 information and belief he has related to 5 matters in issue? 6 MS. SIMON: I will provide you with the 7 first part. U/T 8 168. MR. KEMP: Does he have any knowledge, 9 information and belief? 10 MS. SIMON: I have no idea. I don't 11 have any witness statements or any 12 summaries, as I told you earlier today. 13 169. MR. KEMP: Will you please make 14 inquiries as to his knowledge, information 15 and belief? 16 MS. SIMON: I will give you an under 17 advisement for that, as I had earlier with 18 the others. U/A 19 170. MR. KEMP: I would also ask for his last 20 known address? 21 MS. SIMON: Under advisement. U/A 22 23 BY MR. KEMP: 24 171. Q. Do you know who Kathy Markou? 25 A. Yes.

T. Agostini - 42 1 172. Q. Who is that? 2 A. She works in music clearance or 3 rights management at the CBC. 4 173. Q. Does she work with Cindy Roy or 5 report to her? 6 A. I think it is the other way around, 7 but I am not sure. I think Cindy reports to Kathy. 8 174. Q. Do you know how long she has held 9 that position? 10 A. I don't know. I think it is many 11 years, but I don't know. 12 175. MR. KEMP: Counsel, may I have an 13 undertaking for you to provide that 14 information? 15 MS. SIMON: Yes. U/T 16 176. MR. KEMP: And I would also ask for her 17 last known address. 18 MS. SIMON: Under advisement. U/A 19 177. MR. KEMP: And I would also ask for you 20 to make inquiries of her knowledge, 21 information and belief related to the 22 matters in issue. 23 MS. SIMON: Under advisement. U/A 24 25 BY MR. KEMP:

T. Agostini - 43 1 178. Q. Now, you previously identified Mr. 2 Masse for me? 3 A. David Masse. 4 179. Q. I don't believe I have yet asked for 5 his last known address. 6 MS. SIMON: No, I don't believe you 7 have. Under advisement. U/A 8 9 BY MR. KEMP: 10 180. Q. Do you ever discuss the Hockey Night 11 in Canada theme with Mr. Masse? 12 A. Yes. 13 181. Q. Do you have any specific memory of 14 any of those communications or conversations? 15 A. Well, I have a recent one. The 16 discussion around the MasterCard request, which 17 happened, I think, a couple of months ago or so. 18 182. Q. How often would you speak with Mr. 19 Masse about the theme? 20 A. Very rarely. 21 183. Q. Do you remember any other 22 conversations with him about the theme? 23 A. Not specific ones. General ones 24 about the theme, but nothing specific. 25 184. Q. What general conversations...

T. Agostini - 44 1 A. That if the request for the theme 2 came up, that we respected the procedure in terms of 3 what we had to do with it. 4 185. Q. Can you explain what you mean when 5 you say that? 6 A. Well, if there was a request for the 7 use of the theme, then we had to advise John and 8 then proceed accordingly. 9 186. Q. How would Mr. Masse fit into that? 10 A. Well, I am saying if it did. But 11 most of the time these things were referred to me. 12 187. Q. Do you know who Laurie Martin is? 13 A. Yes. 14 188. Q. Who is she? 15 A. She is a business manager who worked 16 for us at CBC Sports. 17 189. Q. Is she still employed at CBC? 18 A. I guess, technically speaking, she 19 is, but she is on long-term disability. 20 190. Q. When did she leave? 21 A. Well, she hasn't...I think she has 22 been away from work now for, I will guess, around 23 over a year, anyway, maybe 15 months. And I know 24 that she...well, some of the stuff is confidential 25 in terms of her...

T. Agostini - 45 1 191. Q. May I have her last known address? 2 MS. SIMON: Under advisement. U/A 3 4 BY MR. KEMP: 5 192. Q. How long has she been employed at 6 CBC? 7 A. Many years. I am going to go from 8 memory and say...I think she started around the 9 1980s. In the early eighties. 10 193. Q. Has she always held the same 11 position? 12 A. No, she progressed within the 13 organization. 14 194. Q. Do you know what position she would 15 have held when she had involvement with the theme? 16 A. She would have been helping Paul 17 Harrington. This is probably around the circus... 18 The Circus Is In Town. Yes, she would have been 19 helping Paul on the business side when he was 20 producing that documentary. 21 195. Q. May I ask for an undertaking to make 22 inquiries of Ms. Martin as to her knowledge, 23 information and belief related to the matters in 24 issue? 25 MS. SIMON: Under advisement. U/A

T. Agostini - 46 1 2 3 BY MR. KEMP: 4 196. Q. Do you know who Nancy Cleman is? 5 A. Yes. 6 197. Q. Who is that? 7 A. She was a lawyer who was brought to 8 help Nancy Carrell when Nancy went away, because she 9 was ill. 10 198. Q. That was more recent? 11 A. Well, this was while Nancy...if I 12 remember right, someone was brought in to help her 13 with some of her files when she was ill. So it 14 would have been around the period of time where 15 Nancy left to go and have some medical...to go to 16 the hospital and get medical work done. 17 199. Q. Does Ms. Cleman remain employed by 18 CBC? 19 A. No. 20 200. Q. May I have an undertaking to provide 21 her last known address? 22 MS. SIMON: Under advisement. U/A 23 201. MR. KEMP: I would also ask for 24 inquiries to be made as to Ms. Cleman's 25 knowledge, information and belief with

T. Agostini - 47 1 respect to the matters in issue in the 2 legal proceeding? 3 MS. SIMON: Under advisement. U/A 4 5 BY MR. KEMP: 6 202. Q. Who is Lise Bertrand? 7 A. Lise Bertrand is a lawyer in 8 Montreal. I am going from memory here. She is a 9 lawyer who works in Montreal and I think her 10 responsibilities were...I am not sure if she is 11 still with us. She was an expert in copyright... 12 she had expertise in copyright issues. 13 203. Q. Did you ever consult with her in 14 relation to the theme? 15 A. I can't remember that. 16 204. Q. May I have Ms. Bertrand's last known 17 address? 18 MS. SIMON: Under advisement. U/A 19 205. MR. KEMP: I would also ask that 20 inquiries be made as to her knowledge, 21 information and belief with respect to 22 matters raised in the legal proceeding? 23 MS. SIMON: Under advisement. U/A 24 25 BY MR. KEMP:

T. Agostini - 48 1 206. Q. Did you ever have any conversations 2 with Ms. Bertrand concerning the theme? 3 A. I can't remember. 4 207. Q. Do you know Anita Adams? 5 A. Yes. 6 208. Q. Who is that? 7 A. Anita works with me in the sports 8 department. She is a very sweet, sweet person who 9 works with us and she helps us with a number of 10 files. She is our executive assistant. She works 11 with Nancy and I. 12 209. Q. How long has she been your executive 13 assistant? 14 A. Well, we are colleagues, and since I 15 have been...she has come back from maternity leave 16 and I was here, I think probably seven years or so. 17 210. Q. May I have the last known address of 18 Ms. Adams? 19 MS. SIMON: Under advisement. U/A 20 211. MR. KEMP: I would also ask that 21 inquiries be made of Ms. Adams as to her 22 knowledge, information and belief related 23 to the matters raised in the legal 24 proceeding? 25 MS. SIMON: Under advisement. U/A

T. Agostini - 49 1 2 BY MR. KEMP: 3 212. Q. Have you discussed the theme with 4 Ms. Adams? 5 A. No. 6 213. Q. Is her job more of an administrative 7 or clerical type of position? 8 A. Well, yes. Her responsibilities are 9 not at all involved in the decision-making when it 10 comes to issues like this. 11 214. Q. I understand that she might not be 12 involved or she is definitely not involved in the 13 decision-making. However, would she be familiar 14 with what was going on in various issues in your 15 office? 16 A. Well, she is familiar with what goes 17 on in my office, because, if not, then she couldn't 18 help me. But I am not exactly sure what you mean by 19 that. 20 215. Q. Well, she will be party to many of 21 the communications that you are party to, by virtue 22 of the nature of her position. 23 She won't be participating in them or 24 making decisions, but she will have some knowledge 25 as to what is going on; correct?

T. Agostini - 50 1 A. She will know the files that I am 2 working on on a particular day, just because she 3 needs to know what I am...she can't help me if she 4 doesn't know what I am doing. 5 216. Q. I have also seen reference to a 6 Christos Nikitopoulos. Do you know who that is? 7 A. Yes, I do. 8 217. Q. Who is that? 9 A. He works with us in the sports 10 department. 11 218. Q. How long has he worked there? 12 A. I would say...again, I am going from 13 memory...three years or so. 14 219. Q. Was he employed by CBC prior to that 15 time? 16 A. Yes. 17 220. Q. In which department? 18 A. In the sales and marketing 19 department. 20 221. Q. Who would he have reported to at 21 that juncture? 22 A. I don't remember. I am not going to 23 guess. 24 222. Q. Did you ever have any discussions or 25 conversations with him concerning the theme?

T. Agostini - 51 1 A. In the same way that I would have 2 them with David Masse, as I said earlier. If issues 3 came up around the use of the theme that involved we 4 requesting use of the theme or involving a sales and 5 marketing aspect of it, then we would have 6 discussions. 7 223. MR. KEMP: Now, Counsel, rather than 8 having to refer to each of the various 9 names that I have raised in the past hour 10 and 20 minutes, I know I have asked for 11 inquiries to be made of the knowledge, 12 information and belief for several of them, 13 which have all been taken under advisement. 14 I would also ask for that same 15 undertaking with respect to the other 16 individuals whom I did not specifically ask 17 for those inquiries to be made of. 18 So I am talking about, for example, 19 Mr. Henry, Ms. Collin, Mr. Shannon, Ms. 20 Bower, et cetera. 21 MS. SIMON: You are seeking a global 22 undertaking, basically, for any CBC 23 personnel that you have referred to thus 24 far and I will give you an under advisement 25 in response. U/A

T. Agostini - 52 1 224. MR. KEMP: Thank you. 2 BY MR. KEMP: 3 225. Q. Aside from what you have already 4 told me, do you have any specific memory of any 5 conversations with any of the individuals concerning 6 the Hockey Night in Canada theme and specifically 7 issues raised in the legal proceeding? 8 MS. SIMON: I think you are going to 9 have to narrow that question a little bit 10 more than that. 11 12 BY MR. KEMP: 13 226. Q. I know you have spoken in general 14 terms. If you have specific memories of any 15 particular conversations as we go along, will you 16 tell me about them? 17 MS. SIMON: No, we are not going to do 18 it that way. If you want to ask him about 19 conversations that he has had with certain 20 people that he has specific knowledge of, 21 go ahead and ask him. Or take him to a 22 document, if you would like to jog his 23 memory. 24 227. MR. KEMP: Well, we could have 25 circumvented that, except that you are

T. Agostini - 53 1 refusing to make inquiries of anybody 2 else's knowledge, information and belief, 3 but you are belabouring the process as a 4 result. 5 Now, Counsel, for purposes of 6 clarity, I would propose that we mark 7 Volume 1 of 2, the binder identified as 8 Volume 1 of 2 of the Affidavit of Documents 9 of your client, as Exhibit number 1 for 10 identification purposes. And Volume 2 as 11 Exhibit number 2. Are you agreeable? 12 MS. SIMON: Sure. It seems to me just 13 as easy to mark the entire thing as Exhibit 14 1, but I am happy to do it either way. Or 15 if you prefer to do them each separately, 16 that is fine. If you think that is more 17 clear, that is fine. 18 228. MR. KEMP: Probably 1 and 2 would be 19 easier for my purposes. 20 MS. SIMON: Sure. 21 22 --- EXHIBIT NO. 1: Defendant's Affidavit of Documents 23 (Volume 1 of 2) 24 25 --- EXHIBIT NO. 2: Defendant's Affidavit of Documents

T. Agostini - 54 1 (Volume 2 of 2) 2 MS. SIMON: Can we go off the record? 3 4 --- DISCUSSION OFF THE RECORD 5 6 BY MR. KEMP: 7 229. Q. Mr. Agostini, have you had an 8 opportunity to review the Statement of Defence that 9 has been served on behalf of CBC? 10 A. Yes. 11 230. Q. Do you agree with the contents in 12 the Statement of Defence? 13 A. Yes. 14 231. Q. The allegations or the claims made 15 in the Statement of Defence are true, in your view? 16 A. Say that again? 17 232. Q. Are the statements made in the 18 Statement of Defence that has been served on behalf 19 of CBC, accurate? 20 MS. SIMON: Mr. Agostini is not the 21 drafter of the Statement of Defence. 22 233. MR. KEMP: No, but it is his client's 23 Statement of Defence. I am entitled to 24 know whether he stands by the statements 25 made therein.

T. Agostini - 55 1 MS. SIMON: Do you stand by the 2 statements made in the Statement of 3 Defence? 4 THE DEPONENT: Yes. 5 6 BY MR. KEMP: 7 234. Q. And you believe them to be true? 8 A. Yes. 9 235. Q. Exhibit number 1 has two tabs that 10 contain two separate documents. The first is a 11 television and radio music licence, which agreement 12 was entered into as it appears to be, on the 8th of 13 October, 1998; do you see that document? 14 A. Yes. 15 236. Q. Is that your signature on page 7? 16 A. Yes. 17 237. Q. You signed on behalf of Canadian 18 Broadcasting Corporation? 19 A. Yes. 20 238. Q. Is it your position or belief that 21 this is the document that governed the relationship 22 between the plaintiffs and CBC, as it relates to the 23 Hockey Night in Canada theme? 24 A. Yes. 25 239. Q. Similarly, did you sign the

T. Agostini - 56 1 agreement dated January 23, 2003, between Copyright 2 Music and Visuals, et cetera, and Canadian 3 Broadcasting Corporation? 4 A. Yes. 5 240. Q. You signed that on or about the 23rd 6 of January? 7 A. Yes. 8 241. Q. And this is the document that 9 governs the relationship between the plaintiffs and 10 the CBC, vis-a-vis the theme from, I believe, 11 September 2002 through August 2007? 12 A. Yes. 13 242. Q. Now, at any point in time, did you 14 or any other representatives of the CBC make any 15 inquiries or investigations as to the right or 16 entitlement of Copyright Music and Visuals to enter 17 into this agreement? 18 A. Well, I mean, I think the answer to 19 that question is that is a legal question. Ask me 20 the question again? 21 243. Q. Did you take steps or did any 22 representative of CBC take steps to satisfy yourself 23 or themselves or CBC, that Copyright Music and 24 Visuals was entitled to enter into the arrangement 25 with respect to the composition?

T. Agostini - 57 1 A. Well, I think the answer to that has 2 to be yes. I mean, we are dealing with John, who 3 represents Dolores. No one else has come to tell us 4 that it isn't John who is representing Dolores. 5 We never seemed to have had anyone who has 6 come to us and say, "You shouldn't be speaking to 7 John, you should be speaking to someone else". 8 Dolores, it seemed to me, when we invited 9 her to come to Canada and be on Hockey Night in 10 Canada, she came with John. 11 So I have no reason, and I don't think any 12 of our legal people would have any reason to think 13 that anyone else should be representing Dolores with 14 regard to the Hockey Night in Canada theme. 15 244. Q. So it wasn't an issue from your 16 perspective? 17 A. Well, you know, I don't see on what 18 basis it would be an issue. If there is a reason 19 for it, then you should tell me. I know you are 20 telling me something that he shouldn't be 21 representing, you should be telling me, I don't know 22 that. 23 245. Q. Well, the reason why I ask it is 24 because your Statement of Defence states at 25 paragraph 9 that:

T. Agostini - 58 1 "...[You] put the plaintiffs to the 2 strictest proof thereof to demonstrate that 3 they are the rightful owners of all rights 4 in the composition..." 5 MS. SIMON: That is right, and we will 6 be asking questions of the plaintiffs when 7 it is their turn. 8 9 BY MR. KEMP: 10 246. Q. But at any point in time, the 11 question is, whether CBC took any steps to 12 investigate that they were the rightful owners. You 13 were satisfied that they were; correct? 14 A. Yes, because there was no reason... 15 we were not involved in any legal proceedings which 16 would prompt us to think anything but that. 17 247. Q. And to this point in time, do you 18 have any reason to believe that Copyright Music and 19 Visuals does not have the rights that it purports to 20 have or that Vine Maple Music does not have the 21 rights that it purports to have? 22 MS. SIMON: We are going to ask those 23 questions of your witness when it is his 24 turn. 25 248. MR. KEMP: That is fine, you can ask

T. Agostini - 59 1 those questions. 2 BY MR. KEMP: 3 249. Q. But my question is do you have any 4 reason to believe at this point in time that they do 5 not have those rights? 6 A. I don't have any reason to believe 7 that. But, I mean, my legal counsel is the one who 8 has to guide us with the process that we have to go 9 through in terms of getting to the satisfactory 10 conclusion in this matter. 11 So if there are issues that they need to 12 deal with, I will be very satisfied to let them do 13 it. 14 250. Q. Fair enough. The question is you, 15 for the past 10 years, have been satisfied that Vine 16 Maple Music and Copyright Music and Visuals have the 17 rights that they purport to have? 18 MS. SIMON: The fact that they didn't 19 make additional investigations, which was 20 your original question, does not preclude 21 the fact that perhaps copyright was not 22 properly held. So that is just a question 23 that needs to be asked. 24 251. MR. KEMP: Well, it certainly, then, 25 raises questions as to what CBC was doing,

T. Agostini - 60 1 not making appropriate inquiries if you are 2 now taking the position that they are not 3 copyright owners. 4 So I am simply inquiring whether 5 there is any basis for CBC to believe that 6 they do not have the rights that they 7 purport they have. 8 MS. SIMON: I don't think there is a 9 positive assertion to that fact. I think 10 it is just a question of getting to ask the 11 questions to the appropriate witness, which 12 will be done. 13 252. MR. KEMP: Fine. So at this point in 14 time, you have no facts whatsoever that 15 suggest the plaintiffs do not have the 16 rights that they purport to have? Your 17 counsel can probably answer that just as 18 well. 19 MS. SIMON: No, the witness can go ahead 20 and answer. And I think he has actually 21 answered the question twice now. 22 253. MR. KEMP: It is phrased differently and 23 it is a different question, I beg to 24 differ. 25

T. Agostini - 61 1 BY MR. KEMP: 2 254. Q. You have no facts that would suggest 3 the plaintiffs do not have the rights that they 4 purport to have? 5 A. I do not. 6 255. Q. I am going to show you one of the 7 videos that was produced as part of your 8 productions. And specifically, an excerpt. 9 MS. SIMON: Let's go off the record. 10 11 --- DISCUSSION OFF THE RECORD 12 13 BY MR. KEMP: 14 256. Q. I am going to show you a DVD of one 15 of the productions of CBC, which has been converted 16 from VHS to DVD. 17 It is the VHS tape that was entitled, "The 18 Circus Is In Town, 50 Years of Hockey Night in 19 Canada". 20 I am going to show you an excerpt from what 21 I have marked on here as Title 2, Chapter 2, but it 22 is... 23 MS. SIMON: Did you want to mark it as 24 an exhibit? 25 257. MR. KEMP: I will, momentarily.

T. Agostini - 62 1 MS. SIMON: And I will put on the 2 record, since you are looking to play right 3 now, that I have expressed my concerns off 4 the record about the fact that this was 5 produced to the plaintiffs in a VHS format 6 and has subsequently been converted to a 7 DVD format. 8 And if there should be any 9 discrepancies, we will have to take that up 10 at a later date. 11 258. MR. KEMP: And I am quite prepared for 12 the solicitors for the defendant to do 13 whatever they feel is necessary to satisfy 14 themselves that this is an accurate 15 reproduction of the VHS. 16 MS. SIMON: Who made the reproduction, 17 by the way? 18 259. MR. KEMP: A little shop down the street 19 from my office. Off the record. 20 21 --- DISCUSSION OFF THE RECORD 22 23 MS. SIMON: If need be, we would have to 24 verify the authenticity and whatever else 25 may be the case.

T. Agostini - 63 1 But I am happy to proceed on this 2 basis for the time being, on your good word 3 and your good assurance, that you have 4 given me off the record, that it is an 5 identical reproduction. 6 260. MR. KEMP: I can give it to you on the 7 record. It hasn't been altered and I 8 expect you will be the first to tell me if 9 you believe it has. 10 11 --- DVD BEING PLAYED 12 13 BY MR. KEMP: 14 261. Q. I have shown you an excerpt from the 15 DVD which ran for approximately 30 seconds. Do you 16 believe, after having seen that, that it is an 17 accurate replication of what is actually on the VHS 18 that was delivered by your counsel? 19 A. Yes. 20 262. Q. Is that the Hockey Night in Canada 21 theme that is playing in the background of that 22 excerpt? 23 A. Yes. 24 263. Q. Can you describe for me a bit about 25 what The Circus Is In Town is about and when it was

T. Agostini - 64 1 produced? 2 A. The Circus Is In Town is a 3 documentary about Hockey Night in Canada. And it 4 was to celebrate...I think it was part of the 50th 5 anniversary of CBC Television, and we did a 6 documentary produced by CBC Sports, on Hockey Night 7 in Canada. 8 264. Q. When was the documentary made? 9 A. I am going from memory, so I am not 10 going to say, but it was towards the end of the 11 season, which would have been either the 2002 season 12 or the 2003 season. 13 265. Q. Toward the end of the '02/03 season? 14 A. Yes, it is either that season or the 15 following season. 16 266. Q. Could you please refer me to where 17 in the television and radio music licence, the right 18 or entitlement to use the composition is granted to 19 you for this purpose? 20 A. This piece was about Hockey Night in 21 Canada, it was a journalistic piece on Hockey Night 22 in Canada. As part of fair dealings, we are allowed 23 to us it as part of Hockey Night in Canada. 24 More importantly, it was part of a CBC 25 Sports department production, which uses the theme

T. Agostini - 65 1 all the time, and it was featuring Hockey Night in 2 Canada, under the promotion side of Hockey Night in 3 Canada. 4 267. Q. Perhaps you could refer to the 5 agreement and advise me which specific sections of 6 the relevant agreement you say authorizes you to use 7 the composition in this manner. 8 MS. SIMON: He is not here to give a 9 legal interpretation of the contract. 10 268. MR. KEMP: Counsel, please, I am not 11 asking for his legal interpretation, I am 12 asking for what sections of the agreement, 13 given that he was intimately involved in 14 the negotiation of it, that he says 15 entitled him to use the composition in this 16 manner. 17 MS. SIMON: He just gave you his answer. 18 269. MR. KEMP: I am asking him to refer to 19 the specific sections. 20 MS. SIMON: Well, I am not having him 21 answer... 22 270. MR. KEMP: It is a completely proper 23 question. 24 MS. SIMON: ...to interpret the 25 contract.

T. Agostini - 66 1 271. MR. KEMP: I am not asking him to 2 interpret the contract. That is the 3 furthest thing from my intent. Nobody is 4 asking him to interpret the contract. 5 The question was please advise which 6 section or sections you say entitle you to 7 use the composition in the manner it was 8 used in The Circus Is In Town. 9 MS. SIMON: I understand your question, 10 because you have asked it three times now, 11 but he has given you his response. 12 272. MR. KEMP: What section? 13 MS. SIMON: He responded that his 14 understanding was that it fit under the 15 provisions under the copyright. 16 273. MR. KEMP: In what section is that 17 addressed in the agreement? Take your 18 time. 19 MS. SIMON: I am not having him go 20 further on this line of questioning. 21 274. MR. KEMP: Well, that may be the case, 22 but your refusals are completely 23 inappropriate. 24 I am entitled to know what section 25 you are relying on in support of the

T. Agostini - 67 1 defence that you are entitled to use The 2 Circus Is In Town in this manner. 3 MS. SIMON: You have my position. /R 4 5 BY MR. KEMP: 6 275. Q. Do you know? 7 MS. SIMON: I am not having him answer 8 that. /R 9 10 BY MR. KEMP: 11 276. Q. Did you just decide, I can do it 12 without reference to the agreement? 13 MS. SIMON: That is not an appropriate 14 question. /R 15 277. MR. KEMP: Sure it is. You are refusing 16 to permit this witness to answer the basis 17 upon which they are asserting rights to, we 18 say, breach of copyright. 19 Counsel, let's put it to you, then. 20 What section do you say you are entitled to 21 rely upon to use the composition in this 22 manner? 23 MS. SIMON: I can review the contract if 24 you want to take a break for a few minutes, 25 sure.

T. Agostini - 68 1 278. MR. KEMP: Sure. I am just going to ask 2 your witness again and again whether he 3 agrees with it and whether there are any 4 other sections, just so we are clear where 5 we are going with this. 6 Because I am not going through the 7 central issues in this case and having you 8 refuse to have your client answer 9 completely appropriate questions as to what 10 sections are relied upon for the various 11 breaches of copyright. I am entitled to 12 know. 13 MS. SIMON: Excuse me, if I can speak 14 without you interrupting and without you 15 raising your voice... 16 279. MR. KEMP: No, I am not raising my 17 voice. I would like to know, because it is 18 central to the case. 19 Are you telling me there are no 20 sections, you just decided it yourself, 21 that it is fair dealing? 22 I am entitled to know what sections 23 you say give the right to infringe 24 copyright. 25 MS. SIMON: Well, if you would stop

T. Agostini - 69 1 speaking, we can take a break and I will 2 have a look at the contracts. 3 280. MR. KEMP: Thank you. 4 5 --- A BRIEF RECESS 6 7 TONY AGOSTINI, resumed 8 CONTINUED EXAMINATION BY MR. KEMP: 9 10 281. MR. KEMP: I would propose to mark as 11 Exhibit number 3 the DVD, together with the 12 DVD case, which we have marked internally 13 as "The Circus Is In Town, 50 Years of 14 Hockey Night in Canada". And that is the 15 DVD from which I just played an excerpt for 16 Mr. Agostini. Are you okay with that, 17 Counsel? 18 MS. SIMON: That is fine. 19 20 --- EXHIBIT NO. 3: DVD entitled, "The Circus Is In 21 Town, 50 Years of Hockey Night in 22 Canada" (with DVD case) 23 24 282. MR. KEMP: Now, I believe a moment ago 25 you were going to tell me, Mr. Agostini, or

T. Agostini - 70 1 your counsel, which section of the 2 applicable agreement with the plaintiffs 3 entitles CBC to use the composition in the 4 manner that was used on The Circus Is In 5 Town. 6 MS. SIMON: We are of the view that it 7 falls under the synchronization licence, 8 paragraph 5, subsection (l), subsection... 9 283. MR. KEMP: This is the 2002 licence you 10 are referring to or the 2003 licence? 11 MS. SIMON: I was looking at the 12 synchronization licence, which is dated 13 2003. 14 284. MR. KEMP: I understood Mr. Agostini to 15 say that the broadcast was done in 2002. 16 MS. SIMON: I am content to spend time 17 sitting here on the record looking for it, 18 or we can go off the record, or if your 19 preference is for me to provide you with my 20 undertaking, I can do whichever you like. 21 285. MR. KEMP: No, I want the evidence of 22 the witness. 23 MS. SIMON: Well, insofar as I have 24 already told you that he is not going to be 25 the one answering this question, I would be

T. Agostini - 71 1 quite content to give you my undertaking to 2 fill in this blank... 3 286. MR. KEMP: No, I am not prepared to do 4 that. 5 MS. SIMON: Why don't you hear me out as 6 to what I am providing you with in terms of 7 undertaking before cutting me off and then 8 it may be in your interest that you do want 9 to accept. 10 Because I can certainly get back to 11 you, either later on this afternoon or 12 before we recommence tomorrow, whatever 13 would be your preference. 14 But I am anticipating, and correct 15 me if I am wrong, that you are going to 16 have similar questions with each of the 17 alleged breaches. 18 So in instances where I can answer 19 you right off the bat, I am happy to do so, 20 but it would be a pity to waste the record 21 with me going on and off and looking at the 22 contract in each instance. So it is really 23 up to you. 24 287. MR. KEMP: Yes, and I prefer to proceed 25 in the manner in which I am proceeding.

T. Agostini - 72 1 The difficulty I have with your going on 2 and off the record and pointing to sections 3 that you say entitles the CBC to have used 4 the composition in the manner in which they 5 have, is that these were agreements that 6 were governing the relationship at the time 7 the CBC engaged in the activities that they 8 engaged in. 9 And surely, on that basis, Mr. 10 Agostini, given his role and nature of 11 employment at CBC, ought to be able to 12 direct me to the specific section of the 13 agreement, whichever agreement was in play 14 at the time, that he says entitled the CBC 15 to use the composition in this manner. 16 That is what I am waiting for. 17 MS. SIMON: Well, I think in that case, 18 you would have to ask the underlying 19 question first, which was at every given 20 instance, did you each time open up the 21 contract and do a study of the contract? 22 288. MR. KEMP: Certainly to the extent there 23 was any lack of clarity, I would certainly 24 hope so. 25 MS. SIMON: Well, you can hope away,

T. Agostini - 73 1 but... 2 289. MR. KEMP: Well, goodness knows, the CBC 3 protects its intellectual property. There 4 would be no reason to expect my clients to 5 do otherwise. 6 So I am content to have Mr. Agostini 7 direct me to the section of the agreement 8 that he says entitles CBC to use the 9 composition in the manner that it was used 10 in The Circus Is In Town. 11 MS. SIMON: Well, I am sure you are 12 content. You have made clear that that 13 would make you most content. 14 But as I have already stated quite a 15 number of times now, the witness is not 16 going to be the one doing so. 17 If you would like me to do so, I am 18 prepared to do so, either right now, in 19 which case it will take me a few minutes to 20 have a look each time you require us to do 21 so through the course of your questioning, 22 or I am prepared to do so later in the day, 23 so that I can answer those questions to 24 your satisfaction when we reconvene. 25 290. MR. KEMP: I will wait for you to

T. Agostini - 74 1 provide me with the answer, so I will 2 immediately ask if you...and I want to be 3 clear that Mr. Agostini is not providing me 4 with the answer, it is rather counsel who 5 was not involved at the relevant times who 6 is giving me the answer, I will ask him if 7 he agrees with it and if that was his 8 belief at the time. 9 MS. SIMON: Well, I think the witness 10 understands that he is bound by my answers, 11 so that is not really an issue. 12 291. MR. KEMP: And I think the record will 13 now be clear and the record will show that 14 Mr. Agostini is apparently not able to 15 answer it on his own, without the advice or 16 answer of legal counsel. 17 MS. SIMON: There is no need to make 18 disparaging remarks about the witness' 19 ability or inability to answer the 20 question. 21 The witness is following my lead, 22 which is that he is not going to do legal 23 interpretation of these contracts. If you 24 want to ask him factual questions, that is 25 a different story.

T. Agostini - 75 1 292. MR. KEMP: And I have. The factual 2 question was what section does this witness 3 say entitles CBC to have used the 4 composition in this manner. There is no 5 legal interpretation whatsoever that is 6 being asked of Mr. Agostini. 7 MS. SIMON: Well, in my respectful 8 opinion, the witness answered the question, 9 many, many minutes ago and I have said that 10 to you, I believe, twice now, on the 11 record. 12 The question has been answered. He 13 answered you: (a) that it was fair dealing 14 under the Copyright Act ; and (b) that it 15 was a journalistic use. 16 293. MR. KEMP: My question was what section 17 gives CBC or gave CBC the right to use the 18 composition in the manner it was used on 19 The Circus Is In Town, and that question 20 certainly has not been answered. 21 MS. SIMON: So you want to know what 22 sections provide the right to use the theme 23 under the journalistic provisions or under 24 the fair dealing provisions? 25 294. MR. KEMP: Now you are inserting legal

T. Agostini - 76 1 language, goodness knows why. I am simply 2 asking Mr. Agostini what sections do you 3 say in this agreement gave the CBC the 4 right to use the composition in The Circus 5 Is In Town. What section? 6 MS. SIMON: The witness has answered the 7 question. 8 295. MR. KEMP: No, he hasn't. 9 MS. SIMON: Well, I think we are going 10 to have to agree to disagree on this. I am 11 not going to continue this line of 12 questioning. 13 296. MR. KEMP: No, but this is ridiculous 14 and it is completely inappropriate... 15 MS. SIMON: Yes, I agree it is 16 inappropriate... 17 297. MR. KEMP: ...to conduct an Examination 18 for Discovery... 19 MS. SIMON: ...on your part. 20 298. MR. KEMP: I disagree and I think the 21 refusals are abundantly clear. There is 22 flagrant non-compliance with the Rules 23 here, I am not getting answers and 24 undertakings to questions that clearly I am 25 entitled to. Are you saying you don't know

T. Agostini - 77 1 which sections CBC purports to have relied 2 upon? 3 MS. SIMON: Don't answer that question. /R 4 299. MR. KEMP: Just so we are clear on the 5 record. 6 MS. SIMON: We are entirely clear. I 7 have given you a generous undertaking, 8 which you have declined. 9 300. MR. KEMP: I don't want an undertaking. 10 I am entitled to have this witness' 11 evidence right now. He is the 12 representative of CBC. CBC, we say, has 13 breached copyright, you say you haven't. 14 Okay, where in the agreement does it say 15 you are entitled to use the composition in 16 this manner? It is a very straightforward 17 query. 18 MS. SIMON: I think you should move on. 19 301. MR. KEMP: I know. I indicated or I 20 believe you indicated you were going to 21 give me a section number and I will follow 22 up from there. 23 MS. SIMON: I would be happy to, as soon 24 as you stop speaking. 25 302. MR. KEMP: I have stopped. Do you have

T. Agostini - 78 1 an answer? 2 MS. SIMON: I am doing my best. If the 3 witness' evidence is correct as to the 4 timing, then it looks like it does predate 5 the synchronization licence, which is what 6 I had been looking at previously. 7 So, likely, we need to clarify, 8 first of all, the date of the production. 9 But aside from that, I cannot find a spot 10 at the moment, right now, looking at the 11 contract that I believe governed it, if the 12 timing is correct, as to whether the 13 contract spoke to fair dealing explicitly. 14 So, my best answer is that I will 15 have to get back to you on this. 16 303. MR. KEMP: Are you telling me that CBC 17 cannot look at this agreement right this 18 moment and tell me what section is purports 19 to have relied upon to use the composition 20 in this manner? 21 MS. SIMON: If that is the way you want 22 to phrase it, sure. 23 304. MR. KEMP: I am here, all ears. 24 MS. SIMON: Anyway, as we have already 25 stated, and as the witness has given you

T. Agostini - 79 1 his answer as well, regardless of whether 2 it speaks explicitly to fair dealing under 3 the Copyright Act , that is a statutory 4 provision... 5 305. MR. KEMP: I am not asking for a legal 6 interpretation. 7 MS. SIMON: I am perfectly willing to 8 point your attention to tab 15 of CBC's 9 productions in Volume 2, if you like. 10 There is an exchange of 11 correspondence that is to the exact same 12 effect. 13 306. MR. KEMP: I am looking for the section 14 of the agreement that CBC claims entitled 15 it to use the composition in the manner it 16 did in The Circus Is In Town broadcast, 17 which I understand was done in 2002. 18 MS. SIMON: You have our answer. 19 20 BY MR. KEMP: 21 307. Q. Mr. Agostini, you have had an 22 opportunity to prepare for this Examination for 23 Discovery, you are the individual who was 24 principally involved, it would seem, intimately 25 involved, in the negotiations of both the

T. Agostini - 80 1 agreements. 2 Is it your evidence that you cannot tell me 3 or point me to the specific section of the agreement 4 that you signed that entitles CBC to use the 5 composition in the manner that it was used in The 6 Circus Is In Town broadcast? 7 MS. SIMON: I am not having him answer 8 that question. And if you put it to him 9 again, I am going to consider you being 10 abusive. It is enough. /R 11 308. MR. KEMP: No, what is abusive is not 12 permitting relevant questions to be 13 answered. 14 15 BY MR. KEMP: 16 309. Q. Mr. Agostini, could you please point 17 me to the section that you say entitled the CBC to 18 use the composition in The Circus Is In Town? 19 MS. SIMON: He has already given you 20 answers to that question quite a long time 21 ago now. 22 310. MR. KEMP: No, he did not. I am asking 23 for the section that the defendant relies 24 upon for what we say is a flagrant breach 25 of copyright. What is the section that

T. Agostini - 81 1 entitles CBC to use it? 2 MS. SIMON: You have our answer. 3 311. MR. KEMP: No, that is not an answer, 4 Counsel. What is the section? 5 6 BY MR. KEMP: 7 312. Q. Mr. Agostini, do you not know? 8 MS. SIMON: Counsel... 9 313. MR. KEMP: Yes? 10 MS. SIMON: ...this is not appropriate. 11 314. MR. KEMP: I am entitled to his 12 knowledge, information and belief. I asked 13 if he knew. That is a completely proper 14 question. 15 MS. SIMON: You need to move on. 16 315. MR. KEMP: No, I don't. I am entitled 17 to get an answer to the question. 18 19 BY MR. KEMP: 20 316. Q. Do you know? 21 MS. SIMON: I am not having him answer 22 that question. /R 23 24 BY MR. KEMP: 25 317. Q. What is your knowledge, information

T. Agostini - 82 1 and belief as to the section of the applicable 2 agreement that entitled CBC to use the composition 3 in the manner that it did, in The Circus Is In Town 4 broadcast? 5 MS. SIMON: Counsel, he has given you 6 his answer. 7 318. MR. KEMP: No, he hasn't. 8 MS. SIMON: He answered many, many...I 9 don't know how long ago now, because I 10 haven't been watching the clock... 11 319. MR. KEMP: What section? 12 MS. SIMON: ...he gave you his best 13 answer and that is what you are entitled 14 to. 15 320. MR. KEMP: So there is no section? 16 Because he didn't give me a section and if 17 that is your best answer, I would like to 18 know the section number. 19 MS. SIMON: Excuse me, I think you know 20 what your remedies are if you are not 21 satisfied with the answers that have been 22 provided thus far. And that is as far as 23 we are going with this line of questioning, 24 so I would ask that you move on. 25 321. MR. KEMP: Actually, I beg to differ

T. Agostini - 83 1 because it is my examination and I will 2 determine where we go with the questioning 3 and where we don't. 4 5 BY MR. KEMP: 6 322. Q. Mr. Agostini, what is your 7 knowledge, information and belief as to the section 8 that CBC relies upon as entitling the CBC to use the 9 composition in the manner that it was used in The 10 Circus Is In Town broadcast; do you know? 11 MS. SIMON: I am not having him answer 12 that question, I am not having him give a 13 legal interpretation of the contract. 14 323. MR. KEMP: Nobody has asked him for a 15 legal interpretation, Counsel. I have 16 asked what section he says he was relying 17 upon. 18 MS. SIMON: We have given you our best 19 answer and if this continues I am going to 20 adjourn this examination... 21 324. MR. KEMP: So your best answer is a 22 non-answer? 23 MS. SIMON: Excuse me. 24 325. MR. KEMP: No, it is my examination, 25 Counsel. When I have got counsel who won't

T. Agostini - 84 1 permit a witness to answer completely 2 proper questions that are central to the 3 issues raised in the legal proceeding, I am 4 the one that should have the problem, not 5 you. 6 And I am entitled to continue to ask 7 the questions as I deem appropriate, until 8 I get an answer. 9 And if you are telling me that the 10 best answer is you can't tell me a section 11 number that the CBC says justified it to 12 use the composition in the manner it was 13 used, then have Mr. Agostini confirm that 14 he can't identify a section to me and we 15 will move on. 16 MS. SIMON: I am not having him do that. 17 326. MR. KEMP: Well, then, I am entitled to 18 continue to press. 19 MS. SIMON: Well, press away, because... 20 21 BY MR. KEMP: 22 327. Q. Do you know? 23 MS. SIMON: ...he doesn't have a better 24 answer to that than he has already given 25 you.

T. Agostini - 85 1 He has given you the answer that it 2 was under the journalistic use and fair 3 dealing provisions... 4 328. MR. KEMP: What section is that? 5 MS. SIMON: Of the Copyright Act? 6 329. MR. KEMP: No, what section of the 7 agreement. 8 MS. SIMON: As I said to you, I am not 9 sure whether the agreement specifically and 10 explicitly speaks to it. I know that the 11 subsequent agreement did. 12 330. MR. KEMP: What section of the first 13 agreement, that is the one dated 1998, 14 entitles CBC to use the composition in this 15 manner? 16 MS. SIMON: I am only going to give you 17 the same answers. If you want to spend 18 your money on a transcript of us going back 19 and forth in this manner, that is fine. 20 But at some point I will have to 21 say, and I have already said it once, that 22 this is not an appropriate use of the 23 record and I will adjourn if this 24 continues. 25 331. MR. KEMP: Well, I beg to differ, and it

T. Agostini - 86 1 won't be an adjournment, it will be walking 2 out on the examination. Because I am the 3 one who gets to adjourn it or not. 4 5 BY MR. KEMP: 6 332. Q. Do you know what section? 7 MS. SIMON: I am not having him answer 8 that question. /R 9 10 BY MR. KEMP: 11 333. Q. At the time the CBC...go ahead. Mr. 12 Agostini, I sense you were prepared to answer 13 something? 14 A. I answered the question. 15 334. Q. What section, then, because I missed 16 your reference to any section number. 17 MS. SIMON: I am not having him answer 18 that question. He has given you his best 19 answer and that is what you are entitled to 20 and that is the best he can give you. /R 21 22 BY MR. KEMP: 23 335. Q. Is it common for CBC to use a 24 composition that is protected by copyright at its 25 whim, without reference to any section of an

T. Agostini - 87 1 agreement that entitles CBC to such use? 2 MS. SIMON: Why don't you ask the 3 question in a way that doesn't have 4 assumptions built into it and he will give 5 you his best answer. 6 336. MR. KEMP: That is a proper question. I 7 will decide how I ask them, thanks. 8 MS. SIMON: That is fine, but I will... 9 10 BY MR. KEMP: 11 337. Q. Does CBC do that on its whim? 12 A. Absolutely not. 13 338. Q. What section, then... 14 A. I answered the question. We did a 15 story on Hockey Night in Canada, it was a story 16 about Hockey Night in Canada, produced by the sports 17 department, featuring the Hockey Night in Canada 18 theme. Under fair dealing we are able to use the 19 theme. 20 339. Q. What section gives you that right? 21 A. It is not... 22 340. Q. What section gives you that right? 23 A. I answered the question. 24 341. Q. What section? You don't know? 25 Shall I infer from that answer, that non-answer,

T. Agostini - 88 1 that you did not know at the time, either? 2 MS. SIMON: No, you don't need to infer 3 anything. What is on the record is 4 completely clear. There is no need for 5 inference of any kind. 6 342. MR. KEMP: It is completely clear that 7 apparently CBC hasn't the foggiest notion 8 of what section it relied upon to use the 9 composition in the manner it did, in The 10 Circus Is In Town. 11 MS. SIMON: I am not really interested 12 in your editorial remarks. 13 343. MR. KEMP: It is not an editorial 14 remark. 15 MS. SIMON: Or in your opening 16 submissions for trial. 17 18 BY MR. KEMP: 19 344. Q. Did you have the foggiest notion? 20 A. I answered the question. 21 345. Q. What section? 22 MS. SIMON: Counsel... 23 346. MR. KEMP: Counsel, if you are going to 24 continue to threaten to walk out, why don't 25 you just do it?

T. Agostini - 89 1 MS. SIMON: I have never said that I was 2 going to walk out. 3 347. MR. KEMP: Well, you threatened to 4 adjourn it, which you can't do. The only 5 remedy you have, if you don't like the line 6 of questioning that I am taking, is to walk 7 out. 8 So rather than continue to hear how 9 my questions are objectionable, I don't 10 agree, they are completely appropriate and 11 proper. And I am going to continue to 12 press for the specific sections because I 13 am entitled to know. 14 CBC is using the composition in a 15 manner that is not authorized and infringes 16 copyright of my clients, and CBC is 17 purporting to rely upon the agreement to do 18 so; I am entitled to know what section it 19 purports to rely on. 20 MS. SIMON: We have given you our best 21 answers and, moreover, I have agreed to 22 review the contract in further detail in 23 case there is anything that hasn't come to 24 light right now, and provide you with my 25 undertaking to come back either today or

T. Agostini - 90 1 before we convene tomorrow and give you 2 better answers. 3 I have also pointed you to documents 4 within our productions that speak to this 5 issue, but you are not interested in 6 turning to those. There is nothing more 7 that we can help you with on this issue. 8 348. MR. KEMP: This examination has been set 9 for months, Mr. Agostini has had plenty of 10 time to prepare. I am entitled to his 11 knowledge, information and belief. 12 13 BY MR. KEMP: 14 349. Q. Mr. Agostini, what is your belief as 15 to the section of the agreement that gave CBC the 16 right to use it in the broadcast, The Circus Is In 17 Town? 18 MS. SIMON: I am not having him do 19 contract interpretation, as I... 20 350. MR. KEMP: Nobody is asking him for a 21 contract interpretation. I am asking him 22 for the section that he says entitles the 23 CBC to do that. 24 It is a basic principle, I am 25 entitled to know the position of the

T. Agostini - 91 1 defence and you are bending over backwards 2 to ensure that I don't get it. 3 MS. SIMON: Well, our Statement of 4 Defence speaks for itself and as I have 5 said a number of times now, I am willing to 6 have a further look at the governing 7 contract... 8 351. MR. KEMP: I am entitled to hear from 9 this witness right now. 10 11 BY MR. KEMP: 12 352. Q. What section, Mr. Agostini? 13 MS. SIMON: Well, that is our best 14 answer. 15 353. MR. KEMP: That is your best answer? 16 17 BY MR. KEMP: 18 354. Q. Do you agree with that statement? 19 MS. SIMON: He doesn't need to answer 20 that question. /R 21 22 BY MR. KEMP: 23 355. Q. Do you agree with the remarks of the 24 answer of your counsel? 25 MS. SIMON: He has already affirmed that

T. Agostini - 92 1 he agrees with the answer that he has now 2 given you a number of times on the record. 3 4 BY MR. KEMP: 5 356. Q. And your counsel has not referred me 6 to any single section of the agreement that governed 7 the relationship; are you able to refer me to any 8 section? 9 MS. SIMON: That is his answer. That is 10 our answer. 11 357. MR. KEMP: And that is your best answer? 12 MS. SIMON: That is fine. I wish you 13 would move on. 14 15 BY MR. KEMP: 16 358. Q. Is that your best answer? Do you 17 agree with the remarks of your counsel, do you adopt 18 them as your own? 19 MS. SIMON: He understands that what I 20 say he adopts as well. Our answer is that 21 it was used under the fair dealing 22 provision, it was used under journalistic 23 use provisions. 24 He agrees and I agree that if there 25 is anything further, you have my

T. Agostini - 93 1 undertaking that we will certainly advise 2 you of same. 3 359. MR. KEMP: So today you are incapable of 4 referring me to a specific section in the 5 agreement in support of that position; is 6 that correct? 7 MS. SIMON: I have said to you that I 8 don't see... 9 360. MR. KEMP: I am talking to Mr. Agostini. 10 I don't need you to go back to your office 11 and confer with your IP lawyers saying, 12 "Oh, what defence should be craft here?" I 13 am entitled to Mr. Agostini's evidence as 14 to what section CBC relied on. 15 MS. SIMON: He has answered the 16 question, he has given you his knowledge, 17 information and belief. 18 361. MR. KEMP: What section? He hasn't 19 referred to any section. No, he hasn't, 20 you have refused to permit him. 21 MS. SIMON: I am not having him give 22 contract interpretation. 23 362. MR. KEMP: Nobody has asked him for a 24 contract interpretation. 25

T. Agostini - 94 1 BY MR. KEMP: 2 363. Q. Mr. Agostini, do you have any belief 3 as to the specific section of the agreement with the 4 plaintiffs that entitles you... 5 MS. SIMON: I am not having him answer 6 that question. /R 7 364. MR. KEMP: Now, that is...talking about 8 abuse of the discovery process? This is 9 that. 10 11 BY MR. KEMP: 12 365. Q. Now, you referred a moment ago to 13 the fair dealing provisions? 14 A. I did. 15 366. Q. Are you referring to the fair 16 dealing provisions that are referenced in the 17 Copyright Act of Canada ? 18 A. Yes. 19 367. Q. Is it your belief that the 20 composition created by Dolores Claman is a work 21 pursuant to the provisions of the Copyright Act; is 22 that your belief? 23 MS. SIMON: That is a legal question. 24 368. MR. KEMP: No, it is a belief. He is 25 the one who brought up fair dealing

T. Agostini - 95 1 pursuant to the Copyright Act , in 2 circumstances where he couldn't refer me to 3 a section of the agreement. 4 So I am entitled to know, if he is 5 relying upon the fair dealing provisions of 6 the Copyright Act , whether he has a belief 7 as to whether the composition is a work, as 8 defined therein. That is a belief. 9 10 BY MR. KEMP: 11 369. Q. Is that your belief or no? 12 MS. SIMON: I don't think that is an 13 appropriate question for this witness. /R 14 370. MR. KEMP: Well, that may be the case, 15 but fortunately, you are not asking the 16 question, I am. 17 MS. SIMON: That is right. Why don't 18 you try asking it differently and maybe 19 there will be a way that we can have 20 comfort with him answering the question. 21 371. MR. KEMP: Well, given CBC's inability 22 to refer to a section of the agreement that 23 entitled it to use the composition in The 24 Circus Is In Town, I am now referring to 25 the non-answer, what I characterize as a

T. Agostini - 96 1 non-answer, given by Mr. Agostini, that he 2 is relying on the provisions of the 3 Copyright Act . 4 Given that answer, I am entitled to 5 know if it is Mr. Agostini's belief that 6 the composition, created by Dolores Claman, 7 is a work, as defined in the Copyright Act. 8 MS. SIMON: Are you able to answer that 9 question? 10 THE DEPONENT: Well, I am not answering 11 the question from a legal perspective... 12 13 BY MR. KEMP: 14 372. Q. No, I am just asking for your 15 belief. 16 A. But I believe, as I said earlier, 17 that our use of the theme, under fair dealings, for 18 the production of The Circus Is In Town, which was a 19 documentary about Hockey Night in Canada, was 20 absolutely appropriate and legal. 21 And again, it was done for CBC, within the 22 sports department, about Hockey Night in Canada, it 23 was a story about Hockey Night in Canada. 24 My understanding was there is no 25 requirement for it to be written in any contract.

T. Agostini - 97 1 And, to make it even clearer, we put it in the 2 second contract, just to make sure that if this ever 3 came up again, that we would have dealt with it. 4 But we didn't need to have it in the contract. 5 373. Q. So it wasn't in the first contract, 6 is what you are telling me, the reference to fair 7 dealing? 8 A. I am telling you... 9 MS. SIMON: I had already said to you 10 quite explicitly, that I don't see an 11 explicit reference to it. 12 374. MR. KEMP: I am not interested in 13 arguing the issues. That was another 14 non-answer. 15 16 BY MR. KEMP: 17 375. Q. My question was whether or not it 18 was your belief, given your answer, that the use in 19 The Circus Is In Town was fair dealing, pursuant to 20 the Copyright Act ; do I understand your evidence 21 correctly in that regard? 22 A. I am not answering that as a lawyer, 23 but I am answering it... 24 376. Q. I am not asking you as a lawyer, I 25 am asking as your belief. Because you are the one

T. Agostini - 98 1 who gave that answer. 2 A. I did, yes. The answer is yes. 3 Under fair dealing, it was absolutely appropriate 4 for us, doing a story about Hockey Night in Canada, 5 to use the Hockey Night in Canada...talking about 6 the Hockey Night in Canada theme. 7 377. Q. Now, given your answer, which refers 8 to fair dealing and pursuant to the Copyright Act of 9 Canada , is it your belief that the composition... 10 and just so we are agreed, when I refer to 11 "composition" throughout the course of the 12 examination, can we agree that we are referring to 13 the composition, "Hockey Night in Canada Theme"? 14 MS. SIMON: Yes. 15 378. MR. KEMP: Thank you. 16 MS. SIMON: And alternatively known as 17 "the theme". 18 379. MR. KEMP: Yes, thank you. And any 19 previous references, can we understand them 20 to relate to the theme? 21 THE DEPONENT: Ask me the question 22 again. 23 MS. SIMON: He is just clarifying for 24 the record that when we talk about "the 25 theme" or "the composition", we are all

T. Agostini - 99 1 talking about the same thing, all day long 2 here. We are talking about the theme song. 3 THE DEPONENT: Yes, I understand that. 4 We are talking about the Hockey Night in 5 Canada theme, when we were talking about it 6 in association with Hockey Night in Canada. 7 380. MR. KEMP: Yes, thank you. That was 8 just a bit of housekeeping for clarity. 9 THE DEPONENT: No, but I am answering 10 the question for a specific reason. We are 11 talking about the theme in relation to 12 Hockey Night in Canada. 13 14 BY MR. KEMP: 15 381. Q. No, I am talking about the Hockey 16 Night in Canada theme written by Dolores Claman. 17 A. Right. 18 382. Q. We have referred to it throughout 19 today as either the theme or the composition; 20 correct? 21 A. Correct. 22 383. Q. That is what we both understand and 23 counsel understands we are talking about; correct? 24 A. Correct. We are talking about the 25 Hockey Night in Canada theme, as it is applied at

T. Agostini - 100 1 Hockey Night in Canada. 2 384. Q. No, I am talking about the Hockey 3 Night in Canada theme, written by Dolores Claman. 4 That is just the terminology. 5 MS. SIMON: He is not trying to trick 6 you. 7 8 BY MR. KEMP: 9 385. Q. I am not trying to trick you, I am 10 just trying to clarify. Now I am going to ask the 11 question. 12 Is it your belief that the composition is a 13 work, as defined by the Copyright Act ? 14 MS. SIMON: He already answered yes. 15 386. MR. KEMP: Thank you. 16 MS. SIMON: But that he is not a lawyer, 17 that he is giving you a layperson's answer. 18 387. MR. KEMP: Thank you. 19 20 BY MR. KEMP: 21 388. Q. Now, can you tell me where in 22 Exhibit 3 Ms. Claman was identified as the author of 23 the work? 24 MS. SIMON: Well, I think you are going 25 to have to play the entire DVD if we want

T. Agostini - 101 1 to see that. 2 BY MR. KEMP: 3 389. Q. Well, I can tell you that it is not 4 there. Do you disagree with me? 5 A. Can I answer the question? 6 MS. SIMON: Of course you can, but... 7 390. MR. KEMP: And you will have an 8 opportunity if... 9 MS. SIMON: Is the question to the 10 witness: Was Dolores Claman identified as 11 the author of the work within the body of 12 The Circus Is In Town? 13 391. MR. KEMP: Yes. 14 MS. SIMON: Do you know the answer for 15 sure? 16 THE DEPONENT: The answer is when it 17 aired, the credit, and I think that is the 18 point, the credit was not put in the end 19 credits, that is what you are saying. 20 MS. SIMON: Is that your question? 21 22 BY MR. KEMP: 23 392. Q. It is my understanding that Dolores 24 Claman was not anywhere in The Circus Is In Town 25 identified as the author of the work; is that your

T. Agostini - 102 1 understanding, as well? 2 A. Well... 3 MS. SIMON: I am not comfortable. If he 4 doesn't know, I would rather him have a 5 look at the video, beginning to end, 6 because he is hesitating and I don't want 7 him to answer yes or no if he is not sure. 8 393. MR. KEMP: It is my information that it 9 is not, at any point...Dolores Claman is 10 not at any point in the broadcast 11 identified as the author of the work or the 12 composition. 13 MS. SIMON: If you don't know for sure, 14 we will view it again. I have viewed it, 15 but we will view it again and we will give 16 you our undertaking to answer yes or no. 17 Unless you feel confident that you can give 18 an answer right here and right now. 19 THE DEPONENT: I will answer the 20 question in this manner, and I have to say 21 I do not recall if Dolores' name was used 22 in the piece. The piece featured the theme 23 Hockey Night in Canada. 24 Now, in the binders, there is 25 exchange on this very topic, which Nancy

T. Agostini - 103 1 Carrell responded to John about the issue 2 about The Circus Is In Town and Paul 3 Harrington wrote to John about The Circus 4 Is In Town and he... 5 MS. SIMON: The question is do you know, 6 yes or no, whether she was given credit in 7 the video? 8 THE DEPONENT: I think... 9 MS. SIMON: If you don't know, I would 10 rather you just say you don't know. 11 THE DEPONENT: I don't think she got the 12 end credit, which was the issue. 13 14 BY MR. KEMP: 15 394. Q. And nor was she mentioned at any 16 point in the broadcast? 17 MS. SIMON: Could you rephrase your 18 question and he will answer it? 19 20 BY MR. KEMP: 21 395. Q. It is my understanding that at no 22 point in the broadcast of The Circus Is In Town, was 23 Ms. Claman ever mentioned? 24 MS. SIMON: Do you know, yes or no? 25 THE DEPONENT: I don't know that.

T. Agostini - 104 1 MS. SIMON: Then I think the best thing 2 is we will give you our undertaking to view 3 the video, if that is what you want... 4 396. MR. KEMP: And tell me if I am wrong or 5 my information is wrong? 6 MS. SIMON: Well, why don't we do this? 7 We will review the video, we will answer 8 the question, yes or no, whether she was 9 given credit, and yes or no, whether she 10 was mentioned. Does that satisfy you? 11 397. MR. KEMP: I want to know whether or not 12 Dolores Claman was mentioned as the author 13 of the work, anywhere in that broadcast. 14 Will you give me that undertaking? 15 MS. SIMON: You have my undertaking. U/T 16 398. MR. KEMP: Thank you. 17 18 BY MR. KEMP: 19 399. Q. Now, at any point in time, did you 20 have conversations or discussions with Nancy 21 Carrell, concerning this issue? 22 MS. SIMON: Which issue? 23 24 BY MR. KEMP: 25 400. Q. This issue of alleged fair dealing

T. Agostini - 105 1 being the basis upon which the CBC was entitled to 2 use the composition in the broadcast, The Circus Is 3 In Town? 4 A. You asked me the question, whether I 5 talked to Nancy Carrell about it? 6 401. Q. Yes. 7 MS. SIMON: On this specific point. 8 THE DEPONENT: I am going from memory, 9 but my recollection is yes. 10 11 BY MR. KEMP: 12 402. Q. And going from your memory, what do 13 you remember of that conversation or conversations? 14 A. That it was fair dealing. 15 403. Q. It is my recollection from the 16 documents that your client has produced, and forgive 17 me if I am wrong, but it is my recollection that in 18 one of these documents, Ms. Carrell acknowledges 19 that it was not fair dealing. 20 MS. SIMON: Well, if there is a 21 document, please take him to it. 22 404. MR. KEMP: Well, I guess we will get 23 there in due course. 24 25 BY MR. KEMP:

T. Agostini - 106 1 405. Q. Are you telling me it is your belief 2 that there can be fair dealing in circumstances 3 where the author of the work is not mentioned? 4 A. I think the record shows, clearly in 5 the correspondence, that our producer wrote a note 6 to John saying we were sorry that the credit was not 7 provided and it will be corrected in the next 8 version. 9 406. Q. Does that mean that there was an 10 acknowledged breach of copyright? 11 A. It means that under fair dealing, if 12 we...it is not, in my opinion, a breach of the 13 copyright in terms of our agreement, but in terms of 14 fair dealing, we should have mentioned the name. 15 407. Q. So is it your belief and 16 understanding that in order for there to be fair 17 dealing, there has to be mention of the author of 18 the work? 19 A. That is my understanding. 20 408. Q. And there was no mention of the 21 author of the work or the composition in The Circus 22 Is In Town, was there? 23 MS. SIMON: You have our undertaking in 24 that regard. 25 409. MR. KEMP: That is...

T. Agostini - 107 1 MS. SIMON: Don't cut me off. We are 2 going to... 3 410. MR. KEMP: No, you are cutting me off. 4 MS. SIMON: Well, in fact, you are 5 cutting me off. We are going to review the 6 video to be certain, so that this witness' 7 evidence is accurate. 8 If there are certain documents that 9 you want to take him to in our productions, 10 that is fine, as well. 11 411. MR. KEMP: I just heard him tell me that 12 there was an e-mail from, I believe, 13 Harrington, saying that there was no 14 acknowledgement or mention; correct? 15 MS. SIMON: I am content... 16 THE DEPONENT: Look at the documents. 17 MS. SIMON: Excuse me. 18 412. MR. KEMP: I agree with you, but your 19 counsel wouldn't let you answer. 20 MS. SIMON: I am content to have you 21 take him to the documents in question, you 22 have our undertaking with respect to 23 reviewing the video. 24 If you would prefer that I retract 25 that undertaking, that is fine, as well, if

T. Agostini - 108 1 you want to just pursue the line of 2 questioning in this manner instead. 3 413. MR. KEMP: Mr. Agostini has acknowledged 4 that in order for there to be fair dealing, 5 it is his belief that the author has to be 6 mentioned. 7 MS. SIMON: Correct. 8 414. MR. KEMP: The author of the work has to 9 be mentioned. That is what I just heard 10 him say. 11 MS. SIMON: I heard him say the same 12 thing. 13 415. MR. KEMP: Thank you. 14 15 BY MR. KEMP: 16 416. Q. So we are now acknowledging that 17 there was no mention. Do you have a belief as to 18 whether or not Dolores Claman was mentioned in that 19 broadcast? 20 MS. SIMON: There is no need for him to 21 speculate or give an unfounded belief. We 22 have given you our undertaking, we are 23 going to watch the video and we are going 24 to give you an accurate response to your 25 question.

T. Agostini - 109 1 I don't know why you want an 2 inaccurate response when we have undertaken 3 to give you an accurate response. 4 417. MR. KEMP: Well, I am telling you there 5 was no mention of Dolores Claman. Do you 6 dispute that? 7 MS. SIMON: We have already been through 8 this. You have already put that to him. 9 And that is why we agreed that the most 10 logical way to come to a clear conclusion 11 would be that we would view the video and 12 answer the questions. 13 14 BY MR. KEMP: 15 418. Q. And you will agree with me that if 16 there is no mention of the author of the work, there 17 is no fair dealing, in your belief? 18 MS. SIMON: He has already answered that 19 question and we have already agreed that he 20 has answered the question. 21 419. MR. KEMP: No, we have agreed that... 22 MS. SIMON: We have agreed that that was 23 his answer. So not only has he answered 24 the question and he has agreed that that 25 was his answer, but you and I have

T. Agostini - 110 1 similarly agreed that he agreed that it was 2 his answer. 3 4 BY MR. KEMP: 5 420. Q. Given your answer, in the absence of 6 any evidence that Dolores Claman was mentioned in 7 the broadcast, do you wish to clarify in any way 8 your earlier claim that you believe it was fair 9 dealing? 10 MS. SIMON: I am sorry, I don't 11 understand your question now. 12 421. MR. KEMP: Well, Mr. Agostini previously 13 gave answers. He didn't refer me to a 14 single section that he says CBC was 15 entitled to rely on to use the composition 16 in this broadcast. 17 Instead he said, "We did it because 18 we were allowed to, pursuant to fair 19 dealing". 20 And then he said, "In order for 21 there to be fair dealing, there has to be 22 mention of the author". 23 MS. SIMON: He agreed that that was his 24 view, correct. 25 422. MR. KEMP: And I can tell you there was

T. Agostini - 111 1 no mention of the author, and if that is 2 the case, if I am correct, there can be no 3 fair dealing. 4 And in light of that fact, do you 5 wish to clarify your earlier answer in any 6 way? 7 MS. SIMON: He will answer that question 8 as soon as we view the video. Because I am 9 not having him base it on your supposition 10 and on your view of having watched the 11 video. 12 423. MR. KEMP: I would have thought you 13 would know. 14 MS. SIMON: Just one moment. That is 15 why we are going to watch the video and we 16 will be more than content to provide you 17 with our answer at that time. 18 424. MR. KEMP: Why don't we break there for 19 lunch. 20 21 --- A LUNCHEON RECESS 22 23 TONY AGOSTINI, resumed 24 CONTINUED EXAMINATION BY MR. KEMP: 25 425. Q. I would like to direct your

T. Agostini - 112 1 attention, Mr. Agostini, to Exhibit number 1, and 2 specifically the document located at the very first 3 tab, which is the licence agreement dated October 4 8th, 1998. Is it fair to say you were involved in 5 the negotiation of this document? 6 A. No. 7 426. Q. Who was? 8 A. Alan. 9 427. Q. Can you say the full name again? 10 A. Alan Clark. 11 428. Q. Was anybody else involved? 12 A. I am going to go from memory and I 13 think that Alan got support from Danny Henry. 14 429. Q. Were you involved in any discussions 15 or communications with either Mr. Clark or Mr. Henry 16 in the course of the negotiation? 17 A. If I was, it would have been in a 18 minor role. It may have been in terms of whether we 19 can pay at a particular time. 20 But I don't recall being very actively 21 involved in the negotiation of this agreement. 22 430. Q. Prior to its execution, did you 23 review the terms? 24 A. Of this agreement? 25 431. Q. Yes.

T. Agostini - 113 1 MS. SIMON: Prior to Mr. Agostini's 2 execution? 3 432. MR. KEMP: Yes. 4 THE DEPONENT: Yes, I reviewed the terms 5 because I signed on Alan's behalf because 6 Alan was away. 7 I don't recall the circumstances of 8 Alan not being there, but we functioned 9 under the notion that if something needs to 10 get executed, if he was okay with it, and 11 if legal counsel was okay with it, it is 12 purely an execution of a deal with which we 13 are okay with. 14 So I would have read through it, but 15 I don't recall the...I wouldn't have really 16 ...the whole details, all the details of 17 it. 18 19 BY MR. KEMP: 20 433. Q. Did you have the green light from 21 Mr. Clark, then, for the execution of this agreement 22 and its form? 23 A. Yes. 24 434. MR. KEMP: Counsel, in light of this 25 evidence, I would reiterate my request for

T. Agostini - 114 1 production of the files of Mr. Clark and 2 Mr. Henry. 3 MS. SIMON: I don't recall you ever 4 speaking about the files of Mr. Clark. I 5 do recall some earlier discussion about Mr. 6 Henry, and my position remains consistent 7 with what was said earlier in the day. 8 435. MR. KEMP: As it relates to Mr. Clark's 9 files, as well? 10 MS. SIMON: Correct. /R 11 12 BY MR. KEMP: 13 436. Q. Now, could you read aloud the 14 provisions of section 2 of this agreement located at 15 tab 1? And I will refer to it, if it is agreeable 16 to you, as the 1998 agreement. 17 A. Yes. 18 437. Q. If you could read that aloud? 19 A. Do you want me to read it? 20 438. Q. Yes. 21 A. This section here? 22 439. Q. Section 2. 23 A. "...The broadcast productions for 24 which this agreement is issued is a live 25 television and radio hockey series

T. Agostini - 115 1 entitled, `Hockey Night in Canada, La 2 Soirée du Hockey', hereinafter referred to 3 as the productions..." 4 440. Q. Is this the series that has run for 5 many years on Saturday evenings in Canada? Do the 6 productions refer to the series that has run for 7 many years on Saturday night on CBC? 8 A. Yes. 9 441. Q. Is there some other element or 10 aspect of the productions of which I am not aware? 11 A. Well, you need to understand that 12 Hockey Night in Canada, although it runs most of the 13 time on Saturday nights, doesn't only run on 14 Saturday nights during the playoffs. And sometimes 15 during the regular season there are nights that it 16 isn't Saturday. 17 442. Q. It used to be Wednesday at some 18 point? 19 A. No. There may have been some 20 midweek broadcasts, you may be remembering midweek 21 broadcasts... 22 443. Q. In the seventies? 23 A. ...in the seventies. So Hockey 24 Night in Canada does not run exclusively on Saturday 25 nights.

T. Agostini - 116 1 444. Q. In fact, in the playoffs, generally, 2 or oftentimes they are running every night of the 3 week? 4 A. We hope. 5 445. Q. So it refers to the hockey 6 production of CBC; is that fair? 7 A. It is fair to say that it refers to 8 the programs of hockey. The hockey broadcasts that 9 we do on the game of hockey, which fall under the 10 umbrella of Hockey Night in Canada and La Soirée du 11 Hockey. 12 446. Q. So we are talking about the 13 broadcasts of the games, that is what the... 14 A. The broadcast of the games and the 15 stories and images which are broadcast around our 16 broadcast of the games. 17 447. Q. Well, what are they? 18 A. Well, we start on Saturday nights, 19 our broadcast starts at 6:30. The game happens at 20 7:00. Then, in between the first game and the 21 second game, there are elements of production which 22 are not game, but are elements of games, stories 23 about the game, features about the game, pieces 24 about the game of hockey. And that goes into the 25 second game.

3 Night in Canada.

T. Agostini - 117 1 And then after the second game, we go into 2 our after hours program. All of that is Hockey

4 448. Q. So you are talking not only the game 5 action, which I think I have seen it referred to as 6 whistle to whistle, but part of the programming that 7 both precedes and then comes after the actual game? 8 A. Hockey Night in Canada is a number 9 of pieces and there are a lot of production elements 10 in Hockey Night in Canada. 11 The major part of it is the producing of 12 the game. Our executive producer is in charge of 13 many elements of producing that game. 14 They include the game broadcast and, as I 15 said before, the intermission broadcast, the opening 16 of the game, the show before the game and the show 17 after the game. 18 449. Q. So the productions is referring to 19 that specific broadcast in its entirety, on both 20 sides of the game itself? 21 A. The productions refers to the series 22 of activities that are on Hockey Night in Canada. 23 450. Q. And specifically the broadcast of 24 Hockey Night in Canada? 25 A. Yes.

T. Agostini - 118 1 451. Q. So we might be talking an hour or so 2 before a game and an hour or so after a game? 3 A. Typically, we begin our hockey 4 broadcast on Saturday night at 6:30, the first game 5 is at 7:00, with the puck drop at 7:07 or 7:08, and 6 then we go to the end of the first game, there are 7 intermissions in the first game. 8 Then at the end of the first game we do an 9 in-between games from the Air Canada Centre with Ron 10 and Don and others, and then we go to the second 11 game which starts at 10:00. 12 We go to the end of that game and typically 13 we do Hockey Night in Canada After Hours, Kelly 14 Hrudey and group, and then it goes to the end of 15 that, which normally goes until about 1:30 or so 16 eastern. 17 452. Q. And that is what you are 18 characterizing as part of the productions? 19 A. Absolutely. And during the 20 playoffs, it is versions of that. 21 453. Q. As I understand the 1998 agreement, 22 the use of the composition in the productions, as it 23 is defined in the agreement, was limited to the 24 territory of Canada; is that correct? 25 A. No, not quite.

T. Agostini - 119 1 454. Q. Well, I believe there is an Armed 2 Forces exception? 3 A. Yes. 4 455. Q. Are you referring to anything else? 5 A. I am referring to Canadian Forces 6 Bases outside of Canada, as well as Canadian 7 embassies and consulates. 8 456. Q. Yes, you are referring to section 9 6(c); correct? 10 A. Yes. 11 457. Q. Aside from that, do I understand 12 correctly, that the 1998 agreement limits the use of 13 the composition to Canada and Canada exclusively? 14 A. The intent of the agreement is for 15 Canada. 16 458. Q. And if the composition was used 17 outside of Canada, it is your position, is it, that 18 my clients were entitled to be compensated? 19 A. Yes. If the composition was used 20 outside of what is included in the grant of rights, 21 yes, we would have to look at and determine what 22 additional monies should be paid to Dolores. The 23 intent was not to use it outside of Canada. 24 459. Q. And, in fact, aside from the one 25 exception that you have pointed out, CBC is not

T. Agostini - 120 1 entitled to use it outside of Canada? 2 A. Well, it wasn't our intent to use it 3 outside of Canada. 4 460. Q. Nor do you have the rights without 5 some form of further payment, do you? 6 MS. SIMON: Hasn't he just answered that 7 question? 8 461. MR. KEMP: I don't think so. I am 9 asking him to acknowledge that CBC does not 10 have the right to use the composition 11 outside of Canada, aside from the one 12 exception he has already noted, without 13 some form of further compensation. 14 THE DEPONENT: I think, just for us to 15 be clear, and I am not...I don't want to be 16 difficult. The territory referred to in 17 the agreement says very specifically: 18 "...The territory is all of..." 19 20 BY MR. KEMP: 21 462. Q. Please refer to where you are 22 reading. 23 A. I am reading the agreement. 24 MS. SIMON: Paragraph 5. 25 THE DEPONENT: Paragraph 5, and it

T. Agostini - 121 1 reads: 2 "...The territory for which this agreement 3 is issued is all of Canada and provided 4 that with respect to Internet access to web 5 servers under the content control of 6 licensee in Canada and web servers outside 7 of Canada, provided that such web servers 8 outside of Canada are incidental to the 9 number of web servers in Canada and made in 10 accordance with other provisions of this 11 agreement, the territory shall be expanded 12 to include the rest of the world in terms 13 of Internet..." 14 So I just want to try to be accurate in 15 terms of my answer to you. The intent, 16 though, with regards to the broadcast was 17 Canada, except for Canadian Forces bases 18 and Canadian embassies and consulates. 19 20 BY MR. KEMP: 21 463. Q. Do you agree with me that CBC was 22 not entitled to broadcast the composition or to 23 otherwise licence the composition for broadcast 24 outside of Canada without further compensation being 25 paid to the plaintiffs?

T. Agostini - 122 1 A. I think that would be correct. 2 464. Q. Now, you read from the provisions of 3 section 5 of the... 4 A. Can I add something? 5 MS. SIMON: Sure. 6 THE DEPONENT: Can I add something? 7 8 BY MR. KEMP: 9 465. Q. Sure. 10 A. I just want to point out to you that 11 in "Grant of Rights", in 6(d), can I read it? 12 466. Q. Yes. 13 A. "...In the event, during the term 14 of this agreement or any renewals thereof, 15 licensee is able to broadcast the 16 productions over the air outside of Canada 17 or license such broadcasters, licensor 18 agrees to grant all of the above rights to 19 licensee in that regard, mutatis mutandis, 20 for an additional fee to be negotiated in 21 good faith by the parties hereto as soon as 22 possible, before such broadcasts are to 23 commence..." 24 467. Q. I think that just confirms that you 25 acknowledged to me a moment ago, doesn't it?

T. Agostini - 123 1 A. It does, but it says that we have 2 the right to do it, except that we have to negotiate 3 payment. 4 468. Q. And that is just what you agreed 5 with, as I understood my question. 6 MS. SIMON: I think the clarification is 7 that there does exist a right, but that 8 there needs to be a fee negotiated for that 9 right, in order to exercise the right. 10 THE DEPONENT: We have the right to 11 broadcast outside of Canada, we just need 12 to negotiate a fee. 13 So it is not as if we don't have a 14 right to broadcast outside of Canada. We 15 have a right, but we have to negotiate a 16 fee. 17 18 BY MR. KEMP: 19 469. Q. I understand. And my question was, 20 just so that we are clear, and I think it is 21 consistent with what your answer was a moment ago, 22 the question that I had put to you was that CBC does 23 not have a right to use the composition outside of 24 Canada, unless it compensates my clients or the 25 plaintiffs?

T. Agostini - 124 1 A. I think the correct answer to the 2 question is we have a right to use it outside of 3 Canada and we have an obligation to pay additional 4 money for it. But we have a right to, based on this 5 clause. 6 470. Q. And if you fail to pay for it, that 7 is not authorized pursuant to the agreement? You 8 acknowledge that is a breach? 9 A. We have an obligation to pay 10 additional money if we broadcast outside of Canada. 11 471. Q. And failure to do so, if the 12 composition is broadcast outside of Canada, would be 13 a breach of the agreement; correct? 14 A. I would say if we failed to 15 negotiate an agreement, it would be a breach. But 16 in my view, we have tried very hard to negotiate an 17 agreement with this kind of stuff. 18 472. Q. Well, you have acknowledged, in your 19 own productions, that the composition has been 20 broadcast in a variety of other locations, including 21 the United Kingdom; correct? 22 MS. SIMON: Why don't you take him to 23 the document in question? 24 473. MR. KEMP: Well, he should know off the 25 top of the head, unless he tells me...

T. Agostini - 125 1 MS. SIMON: Well, do you have a document 2 in... 3 474. MR. KEMP: Well, it is in your 4 productions, so I am assuming that you have 5 read them. 6 THE DEPONENT: Can I answer the 7 question? 8 MS. SIMON: Well, the question hasn't 9 actually really been formulated in whole. 10 Let's hear the question first. 11 12 BY MR. KEMP: 13 475. Q. You have acknowledged that the 14 composition has been broadcast in the United 15 Kingdom; haven't you? 16 A. Yes. 17 476. Q. You have acknowledged that the 18 composition has been broadcast in Scandinavia; 19 hasn't it? 20 MS. SIMON: I really think we should go 21 to the document in question. If you are 22 not able to find it... 23 477. MR. KEMP: I can find it, but I am just 24 trying to understand this witness' evidence 25 in general terms.

T. Agostini - 126 1 MS. SIMON: I would be more comfortable 2 with him going to the document, if you have 3 something in mind.

4 5 BY MR. KEMP: 6 478. Q. Do you acknowledge that the 7 composition has been broadcast in, I believe, Japan? 8 A. No. 9 479. Q. It has not?

10 A. Not to my knowledge. 11 480. Q. Has it been broadcast in any other 12 extraterritorial jurisdictions or any jurisdiction 13 outside of Canada? 14 MS. SIMON: To the best of your 15 knowledge. 16 THE DEPONENT: To the best of my 17 knowledge, United Kingdom, as I outlined in 18 my note, and the United States. 19 20 BY MR. KEMP: 21 481. Q. My clients have not been compensated 22 for those broadcasts, have they? 23 A. Your client has received offers from 24 us to address the shortfall in broadcast uses and we 25 have not been able to finalize our agreement with

T. Agostini - 127 1 John on that matter. 2 482. Q. And, hence, there is no agreement? 3 A. Sorry? 4 483. Q. Well, if you haven't been able to 5 finalize the agreement, that means by its very 6 nature that there is no agreement? 7 A. No, I am sorry. There is an 8 agreement which entitles us to use the material 9 outside of Canada. But have we been able to address 10 the detail of the compensation for extraterritorial 11 uses, no. That is what you are asking me, right? 12 484. Q. So the plaintiffs have not been 13 compensated for extraterritorial uses? 14 A. That is correct. 15 485. Q. And they have not been compensated 16 to the knowledge of the Canadian Broadcasting 17 Corporation? 18 MS. SIMON: I am sorry, I don't 19 understand the question. 20 21 BY MR. KEMP: 22 486. Q. CBC is well aware of the fact that 23 they have not compensated the plaintiffs for the 24 extraterritorial uses of the composition? 25 MS. SIMON: Well, it says so in your

T. Agostini - 128 1 Statement of Claim. 2 487. MR. KEMP: Which you have denied. 3 MS. SIMON: But we are aware of the fact 4 that you are making that allegation. 5 488. MR. KEMP: But he has just told me, in 6 fact, there have been extraterritorial uses 7 of the composition for which my clients 8 have not been compensated. 9 10 BY MR. KEMP: 11 489. Q. Did I misunderstand you there? 12 A. If I remember correctly, the 13 document said that we were in breach of the 14 agreement, the Statement of Claim. 15 We can broadcast, we can provide these 16 broadcasts for use outside of the country. What we 17 haven't been able to do, although there has been a 18 lot of, you know, to-ing and fro-ing, is to agree on 19 exactly what the compensation should be for the 20 further use. 21 490. Q. I think you left out a part of the 22 clause there about your entitlement to broadcast 23 outside of Canada; correct? 24 A. Which part? 25 491. Q. Well, that says there is supposed to

T. Agostini - 129 1 be an additional fee negotiated before such 2 broadcasts are to commence. 3 A. Yes. 4 492. Q. That is part of the agreement; 5 right? 6 A. It says that is part of the clause. 7 It says that. 8 493. Q. You haven't done that, have you? 9 CBC did not do that, did they? 10 A. No, we have tried to do that. 11 494. Q. I think we are both in agreement 12 that CBC is entitled to broadcast the composition 13 outside of Canada; correct? 14 A. Correct. 15 495. Q. However, that is not a free rein, is 16 it? You don't have licence to do that, did you? 17 A. Nor did I say we did. 18 496. Q. Now, you can broadcast outside of 19 Canada, provided an appropriate fee is negotiated 20 with the plaintiffs; correct? 21 A. That is correct. 22 497. Q. And you have already acknowledged 23 for me that there have been broadcasts of the 24 composition outside of Canada? 25 A. Yes, I gave you two examples of

T. Agostini - 130 1 that. 2 498. Q. And notwithstanding that 3 extraterritorial broadcast, you have never reached 4 agreement with my clients as to a fee to be paid for 5 that extraterritorial broadcast? 6 A. That is correct. But we have had 7 numerous exchanges on this very topic. 8 499. Q. Well, tell me in the agreement where 9 it says it is sufficient for you to make an offer 10 before you broadcast it outside of the jurisdiction? 11 Because by my reading it says one has to be 12 negotiated before you can use that and that is not 13 something you have done. If I am missing something 14 in the agreement, please take me to it. 15 A. I am not sure if you are missing 16 anything in the agreement, but for us to reach an 17 agreement, there has to be a negotiation. 18 The negotiation has to be in good faith, it 19 has to be between two parties and then we have to be 20 able to agree to a fee. 21 And if we can't agree to the fee, then we 22 end up in the situation that we are in right now. 23 500. Q. Well, if you can't agree to a fee, 24 you have no entitlement to broadcast the composition 25 outside of Canada, do you?

T. Agostini - 131 1 A. Well, I think we do. 2 501. Q. Really? 3 A. I think we have a right to use the 4 agreement. We have a right, based on what is in 5 this contract to make...well, let's read it: 6 "...In the event, during the term of this 7 agreement or any renewals thereof, licensee 8 is able to broadcast the productions over 9 the air outside of Canada or license such 10 broadcasters, licensor agrees to grant all 11 of the above rights to licensee in that 12 regard, mutatis mutandis, for an additional 13 fee to be negotiated in good faith by the 14 parties hereto as soon as possible, before 15 such broadcasts are to commence..." 16 502. Q. You adopt that in its entirety, 17 don't you? That is the term of the agreement? 18 A. I absolutely do. 19 503. Q. Tell me, then, or point to me, 20 please, or show me in your productions, where an 21 additional fee was negotiated between the parties in 22 relation to those extraterritorial broadcasts? I 23 want you to show me where the agreement was reached. 24 A. Well, I said to you we haven't been 25 able to reach an agreement.

T. Agostini - 132 1 504. Q. So you are in breach of the 2 agreement as it relates to extraterritorial use? 3 A. We are in breach of our...we have 4 not been able to negotiate the fees required. 5 505. Q. You have not complied with the terms 6 of the agreement; right? 7 A. I would say that we have done our 8 best efforts to abide by all the terms of the 9 agreement. We have not been able to conclude this 10 particular part of the agreement. 11 And, to be fair, we have exchange of 12 correspondence where we have made offers and the 13 offers have come back to us with questions. 14 We have tried to provide the answers to 15 those questions and I guess we are where we are 16 today. 17 But in good faith, we really have tried. 18 We have tried. I mean, what can I tell you? 19 506. Q. You haven't done what you were 20 supposed to do. 21 MS. SIMON: I think that the witness has 22 answered your questions. 23 507. MR. KEMP: No, he hasn't. 24 MS. SIMON: And some of them have now 25 been asked two or three times.

T. Agostini - 133 1 BY MR. KEMP: 2 508. Q. Where does it say, Mr. Agostini, 3 that trying is good enough to use somebody else's 4 copyright? Where does it say that, "If we tried and 5 we couldn't cut a deal, we are still entitled to use 6 that copyright"; where does the agreement say that? 7 That seems to me a rather cavalier approach 8 that CBC has taken on this issue, because you 9 acknowledge extraterritorial use, you acknowledge an 10 additional agreement for that use not having been 11 made and you somehow suggest to me that that action 12 is in accordance with the terms of the agreement? 13 I am having a little trouble with the CBC 14 logic on that issue. You haven't paid them for that 15 extraterritorial use, have you? 16 MS. SIMON: He has answered that 17 question a number of times, he has agreed 18 with you that there has been no payment. 19 And we have been over the terms of 20 the agreement a number of times now. I 21 think the witness is simply trying to point 22 out that over a long course of negotiation, 23 there has been good faith as has been... 24 509. MR. KEMP: Well, you may try to put 25 whatever words in your client's mouth you

T. Agostini - 134 1 want. 2 The fact of the matter is and the 3 record bears it out, that Mr. Ciccone was 4 asking, repeatedly, for months and months 5 and months and months, "Tell me about the 6 extraterritorial uses", and it took him 7 perhaps a year to get any answers. And 8 there was no negotiation during that period 9 of time. 10 So I am just making certain that I 11 understand the evidence of this witness 12 clearly, and let me go about it by asking a 13 further question. 14 15 BY MR. KEMP: 16 510. Q. Mr. Agostini, the composition 17 continues to be broadcast in the UK to this day, 18 doesn't it? 19 A. No. 20 511. Q. Well, I guess we will get to that. 21 When did it stop? 22 A. I would have to provide...I don't 23 remember off the top of my head. But I understand 24 that it stopped a few years ago. 25 512. Q. I would like an undertaking to

T. Agostini - 135 1 advise specifically when it stopped. 2 MS. SIMON: You have my undertaking. U/T 3 4 513. MR. KEMP: Thank you. 5 6 BY MR. KEMP: 7 514. Q. Now, why did it stop? 8 A. It stopped because we were very 9 concerned about not having been able to work out a 10 deal with John, so we basically stopped using the 11 theme as part of this broadcast. 12 515. Q. Now, when you say "we were very 13 concerned", who are you referring to? 14 A. Well, the CBC. 15 516. Q. You were concerned? 16 A. Well, I was concerned and 17 individuals who take on the further use of 18 productions like that one, were told, "This is 19 complicated, it is not worth the complication, so if 20 you can not use it, don't use it". 21 517. Q. Who were those other individuals? 22 A. Bill Atkinson. 23 518. Q. Do you remember any conversations 24 with him about the issue? 25 A. I remember that before I sent a note

T. Agostini - 136 1 to John about the offer for further use, that I 2 spoke to Bill and I said, "Bill, we are just trying 3 to get this thing resolved because we are dealing 4 with many, many other issues, and John has got some 5 concerns, let's address them". 6 And so we sent an offer to John, suggesting 7 that for the further use, which was described in my 8 note, which is in one of these binders, that we 9 agree to these sums of money for the further use. 10 And that is it. 11 519. Q. I believe a moment ago you said, 12 "we", the CBC, were concerned about this use in the 13 UK; did I hear you right? 14 A. Yes. 15 520. Q. You were concerned about that use 16 because you didn't have an agreement to be using the 17 composition in the UK, did you? 18 A. No. We were concerned about it 19 because we weren't able to come to an agreement with 20 John. 21 521. Q. But you were, as I understand it, 22 using the composition in the UK long before Mr. 23 Ciccone even knew about it? 24 A. I am not sure about that. 25 522. Q. Well, do you remember Mr. Ciccone

T. Agostini - 137 1 asking you about extraterritorial uses? 2 A. Yes. 3 523. Q. And you made him an offer at the 4 time he first made an inquiry of you? 5 A. No. 6 524. Q. So how did somebody in the UK get 7 into a position to use the composition without Mr. 8 Ciccone knowing about it in accordance with the 9 terms of the 1998 agreement; how did that happen? 10 A. Well, I think the first answer to 11 that question is, people may have seen hockey 12 somewhere in UK. But if it was hockey, it doesn't 13 necessarily mean that it was Hockey Night in Canada 14 theme. They just may have seen hockey. 15 They may have seen game action which would 16 have been game action of Hockey Night in Canada. It 17 doesn't mean there was any theme being used there. 18 525. Q. You have told me that the 19 composition has been used in the UK? 20 A. Yes, but what I am saying to you is 21 you are referring to 1998 as the start point for 22 this process. And I guess what I am saying to you 23 is, it was probably years from there that any Hockey 24 Night in Canada full production would have been seen 25 in the UK.

T. Agostini - 138 1 So if someone says...like, if you go to 2 Japan or Scandinavia and you see hockey on 3 television and assume that that is the whole Hockey 4 Night in Canada production, like, you know, maybe 5 you are watching five minutes and you see...and you 6 say, "Oh, I saw that in Scandinavia" or Japan. 7 It doesn't mean that it is the full 8 production, nor does it mean that it includes the 9 Hockey Night in Canada theme. 10 526. Q. Neither my clients nor I have made 11 that presumption. My question to you a moment ago 12 was how did the composition come to be used in the 13 UK? Let's address that first. How did somebody 14 over there acquire the rights? 15 A. The rights were acquired by a small 16 ...it is a digital company, cable outlet, a network, 17 it is called North American Sports Network, and they 18 were looking for properties from North America. 19 And they came to a number of broadcasters, 20 including the CBC. But I think this one came to us 21 through the NHL, but I don't know all the details of 22 it so I am not going to comment any more. 23 But the short of it was basically that they 24 asked for some program content and we worked out a 25 deal, the CBC worked out a deal with them, which

T. Agostini - 139 1 was, I must tell you, for a very small amount of 2 money and that was it. 3 527. Q. Did you say that it was North 4 American Sports Broadcasting? 5 A. No, I said North American Sports 6 Network. 7 528. Q. When did North American Sports 8 Network purport to acquire the rights for the first 9 time from CBC? 10 A. I am going from memory and I would 11 rather not go from memory, but I can get you the 12 date. 13 529. Q. Who from CBC was involved or 14 responsible... 15 MS. SIMON: Just a minute, before you go 16 on, sorry. Are you seeking our undertaking 17 in that regard or are you waiting for him 18 to get this information right now, if he 19 has it? 20 530. MR. KEMP: If you have it right now. 21 MS. SIMON: Do you have something here 22 that is going to help you to know that? 23 THE DEPONENT: Yes. 24 531. MR. KEMP: Off the record. 25

T. Agostini - 140 1 --- DISCUSSION OFF THE RECORD 2 3 532. MR. KEMP: By way of undertaking, I 4 believe my inquiry was to have Mr. Agostini 5 answer when the first transaction or deal 6 with NASN took place where they acquired 7 certain rights from CBC related to, what I 8 am assuming, is Hockey Night in Canada 9 broadcast; is that correct? 10 THE DEPONENT: The broadcast of Hockey 11 Night in Canada, yes. 12 533. MR. KEMP: May I have that undertaking? 13 MS. SIMON: Yes. U/T 14 THE DEPONENT: To be clear, not game 15 action. We are talking Hockey Night in 16 Canada. 17 534. MR. KEMP: Yes. 18 MS. SIMON: That is what he said. 19 535. MR. KEMP: So no restrictions. 20 THE DEPONENT: I don't understand what 21 you mean by that. 22 23 BY MR. KEMP: 24 536. Q. Well, game action, are you saying 25 that NASN negotiated for game action or for Hockey

T. Agostini - 141 1 Night in Canada? 2 A. I am saying for Hockey Night in 3 Canada. Game action is not part of these 4 discussions. 5 537. Q. And "game action", as I understand 6 it, does that mean whistle to whistle? 7 A. It means, yes, whistle to whistle. 8 It means where there would be no concern about use, 9 as contemplated by our discussions. 10 538. Q. So NASN negotiated rights to Hockey 11 Night in Canada, the broadcast? 12 A. Yes. 13 539. Q. And my inquiry, which I believe you 14 have agreed to give me by way of undertaking, 15 related to when that first transaction took place; 16 correct? 17 MS. SIMON: Yes. 18 540. MR. KEMP: I would also ask for 19 production of a copy of that agreement? 20 MS. SIMON: Why don't we go off the 21 record? I can have a brief discussion with 22 you about that and we will see if we can... 23 or if you want stay on the record, since 24 you are looking at me... 25 541. MR. KEMP: Why don't you give me that

T. Agostini - 142 1 and then we can go off the record? Give me 2 your answer and we will go off the record. 3 MS. SIMON: Our position is that that 4 document would contain proprietary and 5 confidential information that we are not 6 comfortable with it being out in the public 7 eye and so, obviously, it is subject to the 8 implied undertaking rule that always 9 governs discoveries and productions and 10 materials that come thereunder. 11 But we would like your undertaking 12 also that it would be the subject of a 13 Sealing Order. So we would want your 14 undertaking that the parties can consent to 15 that in advance. 16 542. MR. KEMP: What if I need it? 17 MS. SIMON: At trial? 18 543. MR. KEMP: Yes. 19 MS. SIMON: Well, it would be the 20 subject of a Sealing Order at trial and 21 leading up to. 22 544. MR. KEMP: Fine. Well, without seeing 23 it, I am not prepared to make that 24 commitment now. Certainly anything I 25 receive from you by way of undertaking is

T. Agostini - 143 1 subject to the implied undertaking Rule. 2 I would be prepared to go even 3 beyond that and say that I would not 4 propose to file such a document as part of 5 any Motion Record for whatever kind of 6 relief, without notifying you or providing 7 you with notice in advance in your 8 identifying to me which portions you 9 regarded as sensitive and could be 10 redacted. 11 But at this juncture, without seeing 12 the document, I am not in a position to 13 agree to any Order that it be sealed, 14 because clearly, it is going to be the 15 position of the plaintiffs that the 16 document is relevant to damages of my 17 client. 18 MS. SIMON: Well, I am not prepared to 19 give you that undertaking unless you will 20 give us that undertaking. And as a result, 21 I guess that might be as far as we can go 22 right now. 23 So I think that in that regard, I 24 will have to take it under advisement and 25 perhaps we can have more discussions around

T. Agostini - 144 1 that. U/A 2 3 BY MR. KEMP: 4 545. Q. How long was the term of the 5 agreement with NASN? 6 A. I think it was a season-and-a-half. 7 546. Q. Were there rights of renewal? 8 A. Meaning what? What do you mean? 9 547. Q. Was there a right to renew the 10 initial season-and-a-half term? 11 MS. SIMON: I am going to say that that 12 is enough for now and we are getting very 13 much into the territory of exactly the 14 nature of things that the CBC considers to 15 be proprietary and confidential. 16 So unless we have your undertaking, 17 I am not going to undertake to provide it 18 and I am not comfortable with him answering 19 any more questions. 20 548. MR. KEMP: You have got the implied 21 undertaking. The issue of whether or not 22 it is sealed at trial can be argued at 23 trial. You don't have to have me commit 24 now. It would be irresponsible for me to 25 commit now.

T. Agostini - 145 1 MS. SIMON: I don't agree that it would 2 be irresponsible at all, but in any event, 3 we are not solely concerned with trial, we 4 are concerned with the period of time 5 between now and trial, as well. 6 549. MR. KEMP: It is an implied undertaking. 7 MS. SIMON: Why don't you put your 8 questions to him... 9 550. MR. KEMP: If I do anything, they will 10 bounce me, the Law Society. 11 MS. SIMON: Counsel, why don't you put 12 your questions to him and if there are 13 questions that we are comfortable with him 14 answering and that we don't consider to be 15 proprietary, that is fine, and otherwise, 16 we will refuse them and we will take it up 17 once we come to an agreement about 18 production. 19 20 BY MR. KEMP: 21 551. Q. I gather the initial term was for a 22 season-and-a-half? 23 A. Yes, that is my understanding. 24 552. Q. Were there entitlements on the part 25 of NASN to renew that term?

T. Agostini - 146 1 A. I really don't know whether in the 2 agreement there was an entitlement to renew. 3 553. Q. How much did they pay? 4 MS. SIMON: We are not prepared to 5 answer that. /R 6 554. MR. KEMP: Reason? 7 MS. SIMON: I already put the reason on 8 the record. It is proprietary and 9 confidential information. 10 555. MR. KEMP: Except, by virtue of the fact 11 that CBC gave them the rights to the Hockey 12 Night in Canada broadcast. By automatic 13 extension, they are giving them the rights 14 to the composition. 15 So it might be proprietary 16 information, but it is information that 17 impacts directly upon the rights of my 18 clients. 19 MS. SIMON: I understand. As long as we 20 have your agreement that it will be subject 21 to a Sealing Order, we are prepared to 22 produce it to you. 23 556. MR. KEMP: Without seeing it... 24 MS. SIMON: We are not concerned about 25 your client seeing it or you seeing it, we

T. Agostini - 147 1 are concerned about it being in the public 2 purview, because of the nature of the 3 information contained therein. 4 557. MR. KEMP: I don't know what is in it, 5 so I can't automatically accept that there 6 is proprietary information that warrants it 7 being sealed. 8 9 BY MR. KEMP: 10 558. Q. In any event, were there any 11 restrictions or limitations on the rights that NASN 12 was acquiring with respect to the Hockey Night in 13 Canada broadcast? 14 A. I can't comment on the details of 15 that. 16 559. Q. I have already sought an undertaking 17 or inquired as to when the agreement was reached. I 18 would also like an undertaking to advise when the 19 negotiations for the agreement were initiated. 20 MS. SIMON: That is fine. U/T 21 560. MR. KEMP: I would like to know who from 22 CBC was involved in the negotiations. 23 MS. SIMON: What is the relevance of 24 that? 25 561. MR. KEMP: Because they have potential

T. Agostini - 148 1 knowledge of the issues raised in the legal 2 proceeding because NASN is acquiring the 3 right to broadcast Hockey Night in Canada 4 and Hockey Night in Canada includes the 5 composition. 6 MS. SIMON: Why don't you ask the 7 witness whether it is anybody in addition 8 to those who have already been discussed? 9 562. MR. KEMP: No, I want to know 10 specifically who. I don't want that list 11 of 20 names to throw darts at, I want to 12 know who. 13 MS. SIMON: No, but I mean, is it 14 anybody who has already been noted today? 15 Because you have undertakings in that 16 regard anyway. 17 563. MR. KEMP: Fair enough. No, I don't, I 18 have under advisements. 19 MS. SIMON: Thank you for that 20 correction. 21 564. MR. KEMP: If we had undertakings, it 22 would be a lot less problematic. I would 23 like to know specific individuals at CBC 24 who were involved in the negotiations with 25 NASN.

T. Agostini - 149 1 MS. SIMON: That is fine, I will give 2 you that undertaking. U/T 3 4 565. MR. KEMP: And I would also like 5 production of the entire files of those 6 individuals related to the negotiations 7 with NASN. 8 MS. SIMON: You can have an under 9 advisement on that. U/A 10 566. MR. KEMP: I would also like your advice 11 as to the individual or individuals at NASN 12 who negotiated on behalf of NASN. 13 MS. SIMON: Sorry, I couldn't hear 14 because of that extraneous noise. 15 16 --- A BRIEF RECESS 17 18 TONY AGOSTINI, resumed 19 CONTINUED EXAMINATION BY MR. KEMP: 20 21 567. MR. KEMP: I would also ask for an 22 undertaking to advise of the identity of 23 the individual or individuals who 24 negotiated the transaction or who were 25 involved in the negotiations of behalf of

T. Agostini - 150 1 NASN. 2 MS. SIMON: Under advisement. U/A 3 568. MR. KEMP: I would ask for inquiries to 4 be made of any individuals at CBC as to 5 whether any of the discussions or 6 negotiations with NASN addressed the issue 7 of the composition. 8 MS. SIMON: I am sorry, I am going to 9 have to ask you to repeat that. 10 569. MR. KEMP: I would ask for an 11 undertaking that inquiries be made of the 12 individuals at CBC who were involved in any 13 discussions or negotiations with 14 representatives of NASN, as to whether or 15 not the issue of the composition was 16 addressed in the course of these 17 discussions or negotiations. 18 MS. SIMON: I will take that under 19 advisement as well. U/A 20 570. MR. KEMP: To the extent that there have 21 been any renewals, I would ask for the 22 identity of any CBC representative who was 23 involved in any discussions or negotiations 24 with respect to any renewals. 25 MS. SIMON: You have an under advisement

T. Agostini - 151 1 for that, as well. U/A 2 571. MR. KEMP: Similarly, to the extent that 3 any renewals involved somebody different at 4 NASN who was involved in the negotiations, 5 somebody other than who was involved in the 6 negotiations of the original deal, I would 7 ask for the identity of those individuals, 8 as well. 9 MS. SIMON: I understand your question. 10 Yes, under advisement. U/A 11 572. MR. KEMP: I would also ask for 12 production of all CBC documents related to 13 renewal agreements entered into and any 14 negotiations related to such renewals. 15 MS. SIMON: The documents surrounding 16 the negotiation of the NASN/CBC deal? 17 573. MR. KEMP: Yes, and any renewals. 18 MS. SIMON: You are distinguishing that 19 from the contract itself? 20 574. MR. KEMP: Yes. 21 MS. SIMON: Under advisement. U/A 22 23 BY MR. KEMP: 24 575. Q. Does there remain an agreement in 25 place between NASN and CBC today?

T. Agostini - 152 1 A. I think we better check with the 2 dates that we have. I think there is one in place 3 right now. 4 576. Q. Because it is my understanding that 5 hockey games continue to be broadcast in the United 6 Kingdom; would that be NASN? 7 A. Yes. 8 577. Q. If it is your evidence that the 9 composition used to be used in the UK, but no longer 10 is used in the UK, I want to know what changed, or I 11 would ask to please tell me what changed. 12 A. What do you mean "what changed"? 13 578. Q. Well, was there some rider written 14 into the agreement or some amendment to the 15 agreement, saying you are not authorized to use the 16 composition? 17 MS. SIMON: I think we are into kind of 18 ambiguous territory here. 19 579. MR. KEMP: Not really. 20 21 BY MR. KEMP: 22 580. Q. Do you know? 23 A. I think that the documentation that 24 we provide will be able to demonstrate clearly what 25 the status is.

T. Agostini - 153 1 581. Q. Except your counsel hasn't agreed to 2 provide it, so I have to continue asking. 3 A. Well, then, I have to take advice 4 from counsel. 5 582. Q. She hasn't interrupted yet, so do 6 you know? 7 MS. SIMON: I am just querying whether 8 now is the appropriate time to answer until 9 we have the documents in front of us. 10 583. MR. KEMP: But I have no comfort that I 11 am ever going to see those documents, short 12 of a Motion. 13 So, so long as I have only 14 advisements instead of undertakings, I am 15 going to continue to pursue that line of 16 questioning. 17 MS. SIMON: I have no objection to that. 18 Why don't you repeat the question? I am 19 not sure I understood it. 20 21 BY MR. KEMP: 22 584. Q. What happened? If NASN was using 23 the composition for a period of time, but it is your 24 evidence that they no longer used the composition, 25 what happened?

T. Agostini - 154 1 A. We told them not to use the 2 composition. 3 585. Q. Who told them? 4 A. The CBC. 5 586. Q. Who at CBC? 6 A. Bill Atkinson is the person who 7 would have negotiated the deal with NASN. 8 587. Q. When did he tell them that? 9 A. I don't know that. 10 588. Q. Did you have any discussions with 11 Mr. Atkinson concerning that issue? 12 A. Yes. 13 589. Q. I would like an undertaking to make 14 inquiries of Mr. Atkinson as to when he told NASN 15 not to do that. 16 MS. SIMON: We will give you that 17 undertaking. U/T 18 590. MR. KEMP: I would like inquiries to be 19 made of Mr. Atkinson as to why he told NASN 20 not to do that. 21 22 BY MR. KEMP: 23 591. Q. Do you know? 24 A. Well, because we didn't have a deal 25 ...we could not negotiate a deal which allowed us

T. Agostini - 155 1 to, without concern, allow them to play the theme. 2 So we said for all of the hardship that it 3 is worth, it isn't worth it. So let's try to deal 4 with the past and going forward, we are not going to 5 do that anymore. 6 592. Q. And without a deal with the 7 plaintiffs, there is a copyright infringement? 8 A. No, because we have, as I said to 9 you earlier, we had provided an offer. The offer 10 was not accepted. 11 I guess that is where we got to where we 12 are right now, that there has been a lot of to-ing 13 and fro-ing with the hope that this would get 14 resolved and I guess we are where we are right now. 15 When it came time to, in that particular 16 instance, and I am not going to say any more than 17 that, because that is really Bill's territory, but I 18 know that he was not...for the headache that it was, 19 it was just...they just stopped it. 20 593. Q. When did the CBC stop it... 21 A. I don't know exactly when. 22 594. Q. ...relative to your "offer"? 23 A. I think since the offer was not 24 accepted, after we made the offer, as soon as the 25 deal expired, we stopped it. But I am going to say

T. Agostini - 156 1 again, we need the detail from Bill on that, because 2 he knows this file better than I do. 3 595. MR. KEMP: And I would like to know 4 specifically when the deal expired; 5 Counsel, may I have that undertaking? 6 MS. SIMON: The original NASN/CBC 7 contract? 8 596. MR. KEMP: Well, I don't know. Mr. 9 Agostini indicated that he believed the 10 original deal went for a season-and-a-half. 11 You have taken subsequent questions 12 related to any extensions or renewals under 13 advisement, so I don't know. 14 MS. SIMON: So what period of time are 15 you referring to? 16 597. MR. KEMP: Well, he said after the offer 17 the CBC, as I understood the evidence, told 18 them not to use it after the deal with NASN 19 that was in place expired. 20 So I want to know what we are 21 talking about, the original deal or some 22 kind of renewal or extension to it. And I 23 want to know the timing of that deal. 24 MS. SIMON: That is fine. U/T 25

T. Agostini - 157 1 BY MR. KEMP: 2 598. Q. Was anybody else involved in those 3 discussions? 4 A. I don't know. 5 599. Q. I would ask for production of Mr. 6 Atkinson's file related to those discussions. 7 MS. SIMON: My understanding is that 8 that is already in our productions, but if 9 that is not the case, I can make inquiries. 10 And my understanding is the contents of his 11 files have been produced. 12 But if that is not the case, I will 13 make inquiries, and I will take it under 14 advisement, if you are looking for the 15 entire production of his file relating to 16 NASN. U/A 17 600. MR. KEMP: Because if they are produced, 18 I can tell you, he keeps fewer documents 19 than any...he is a lawyer right? 20 THE DEPONENT: No. 21 MS. SIMON: No, he is not a lawyer. 22 THE DEPONENT: We don't have that many 23 lawyers at CBC. 24 601. MR. KEMP: I believe I have inquired or 25 sought his file with respect to any

T. Agostini - 158 1 negotiations or discussions with respect to 2 the original deal with NASN. 3 I want everything related to NASN, 4 whether it be the original deal, the 5 renewals, everything up to the present 6 time. 7 MS. SIMON: I have given you an under 8 advisement. I will think about it. 9 10 BY MR. KEMP: 11 602. Q. Do you have any knowledge as to what 12 the response of NASN was when Mr. Atkinson said, 13 "Don't use the composition"? 14 A. No, I don't. 15 603. Q. Can you make inquiries of Mr. 16 Atkinson, please, with respect to that issue? 17 MS. SIMON: Well, I think we know what 18 the response is, because we have already 19 been given the evidence that they stopped; 20 correct? 21 THE DEPONENT: Well, they stopped using 22 it, but they are still carrying the games. 23 604. MR. KEMP: Except I have a video or VHS 24 from February of this year, where the 25 composition is being played. So clearly

T. Agostini - 159 1 they haven't stopped so we don't have any 2 evidence of that. 3 MS. SIMON: Where is that in your 4 productions? 5 605. MR. KEMP: Off the record. 6 7 --- REPORTER READBACK 8 9 606. MR. KEMP: The question was would you 10 please undertake to make inquiries of Mr. 11 Atkinson as to the response of NASN when 12 they were asked to stop using the 13 composition? 14 MS. SIMON: That is fine. You have our 15 undertaking in that regard. U/T 16 17 BY MR. KEMP: 18 607. Q. Is the composition being used in 19 France at all? 20 A. Not to my knowledge, no. 21 608. Q. What about Italy? 22 A. No, not to my knowledge. 23 609. Q. Does NASN, to your knowledge, 24 broadcast outside of the United Kingdom? 25 A. No, not to my knowledge.

T. Agostini - 160 1 610. Q. Do they ever broadcast outside of 2 the United Kingdom? 3 A. I am not an expert in that, but my 4 understanding is no. 5 611. Q. Now, I believe you referred earlier 6 on to the composition having been broadcast in the 7 United States; did I hear you correctly? 8 A. Yes. 9 612. Q. Who has broadcasted it in the United 10 States? 11 A. I think, as I wrote to John, NHL 12 Centre Ice. 13 613. Q. At some point in time did the CBC 14 enter into an agreement with NHL Centre Ice? 15 A. Yes. 16 614. Q. When was that agreement entered into 17 for the first time? When was the first agreement? 18 A. In my notes to John, I think the 19 first time I referred...I understood that we had 20 arrangements with Centre Ice, I am not sure if it 21 was a formal agreement, but it was the 1999/2000 22 hockey season. 23 615. Q. That is the first time? 24 A. The first time. 25 616. Q. Can you make inquiries and just

6 617. Q. Was that Mr. Atkinson who negotiated

T. Agostini - 161 1 confirm that? 2 MS. SIMON: Yes. U/T 3 4 5 BY MR. KEMP:

7 that transaction or arrangement? 8 A. I am not certain if it was Mr. 9 Atkinson, because it may have been someone else, 10 because he may not have had that file at that time, 11 I don't recall. 12 618. Q. I would ask for inquiries to be made 13 as to the identity of the CBC representative who was 14 involved, or any representative who was involved in 15 the discussions or negotiations related to the NHL 16 Centre Ice deal? 17 MS. SIMON: On the CBC side? 18 619. MR. KEMP: Yes. 19 MS. SIMON: I will take that under 20 advisement. U/A 21 620. MR. KEMP: I would also ask for similar 22 inquiries to be made as to the identity of 23 any individuals who were involved in the 24 negotiations or discussions on the NHL 25 side.

T. Agostini - 162 1 MS. SIMON: The same answer. U/A 2 621. MR. KEMP: I would also ask for 3 production of a copy of the agreement. 4 MS. SIMON: The NHL has told us they are 5 willing to be cooperative and produce those 6 materials, subject to basically the exact 7 same thing that we discussed earlier with 8 respect to the NASN materials, which is 9 that if it is the subject of a Sealing 10 Order, due to the nature of it being 11 sensitive, confidential and proprietary, 12 they are prepared to provide certain 13 information, so long as it is relevant to 14 the litigation. 15 622. MR. KEMP: Well, it is also proprietary 16 information of CBC, is it not, to the 17 extent that it is an agreement that CBC has 18 entered into? 19 MS. SIMON: Well, take it either way you 20 like, it is still... 21 623. MR. KEMP: I will take it with the party 22 that is defending the action. So I would 23 ask for production of the CBC documents. 24 MS. SIMON: That is fine, but as far as 25 the NHL is concerned, they are not going to

T. Agostini - 163 1 be cooperative in that regard, unless we 2 have the agreement of the parties to a 3 Sealing Order, such that material is not in 4 the public eye. 5 624. MR. KEMP: I don't know how you deal 6 with that in the context of a jury trial, 7 but this is not the forum to address that 8 issue. Does CBC have a copy of the 9 agreement with NHL Centre Ice? 10 MS. SIMON: I am not prepared to sit 11 here and answer that right now. 12 625. MR. KEMP: Well, if they have a copy of 13 the agreement, I would like production of 14 the copy. 15 MS. SIMON: Of the Centre Ice agreement? 16 626. MR. KEMP: Yes. 17 MS. SIMON: Well, as I say, that is our 18 position, then. As long as there is no 19 issue with the parties consenting to a 20 Sealing Order, we are entirely prepared to 21 produce that to you. 22 627. MR. KEMP: We have been through this 23 before. 24 MS. SIMON: That is right. That is what 25 I have just said, we have been through this

T. Agostini - 164 1 before. 2 628. MR. KEMP: It is subject to the implied 3 undertaking Rule. I am not going to agree 4 to a Sealing Order in circumstances where I 5 don't know what it says. 6 MS. SIMON: I am not really sure why 7 that is your position, but you are entitled 8 to take that position. 9 629. MR. KEMP: I would also ask for 10 production of the entire files of any CBC 11 employee or representative who was involved 12 in any of the negotiations with NHL Centre 13 Ice. 14 MS. SIMON: The same answer, I will take 15 that under advisement. U/A 16 17 BY MR. KEMP: 18 630. Q. What was the term of the Centre Ice 19 agreement? 20 A. Off the top of my head, I don't 21 remember. I mean, I don't know, because I haven't 22 seen the details of that. 23 631. Q. Can I have an undertaking to provide 24 that information, please? 25 MS. SIMON: The term of the agreement?

T. Agostini - 165 1 632. MR. KEMP: Yes, the duration. 2 MS. SIMON: I am going to have to take 3 it under advisement. I think that I have 4 to say, it is in your interest to go ahead 5 and just give us that undertaking and we 6 are more than happy to produce all of that 7 in its entirety. U/A 8 633. MR. KEMP: I fail to see, again, what is 9 so proprietary about the duration of an 10 agreement between the CBC and NHL Centre 11 Ice. 12 MS. SIMON: Well, I am prepared to go 13 back and think about it. I haven't refused 14 it. 15 634. MR. KEMP: Actually, you have. 16 MS. SIMON: Well, that is your 17 interpretation. We are prepared to think 18 about it. But I don't know why you 19 wouldn't go ahead and...I am not sure what 20 your objection would be to consenting to a 21 Sealing Order. 22 635. MR. KEMP: Well, what do you understand 23 the significance of a Sealing Order to be? 24 MS. SIMON: Well, I am not here to 25 explain to you about the rationale for it.

6 confidential and proprietary information

T. Agostini - 166 1 636. MR. KEMP: Well, are you suggesting that 2 it somehow cannot be introduced as an 3 exhibit at trial that a jury gets to see? 4 MS. SIMON: I am suggesting that it 5 these would be materials that contain

7 from our client's perspective, and so long 8 as it is not in the public eye, we are 9 entirely fine with it being produced for 10 the purposes of the litigation. 11 637. MR. KEMP: The jury is the public. Are 12 you suggesting any rights would somehow be 13 limited in terms of... 14 MS. SIMON: You are correct when you 15 said a few moments ago right now is not the 16 forum to discuss the jury and the jury 17 notice. 18 638. MR. KEMP: I am just trying to 19 understand what you are meaning or saying 20 when you want a Sealing Order. 21 MS. SIMON: You want me to explain to 22 you the implications of a Sealing Order 23 when a jury is involved? 24 639. MR. KEMP: Yes. What am I committing 25 to, as you understand it?

T. Agostini - 167 1 MS. SIMON: Well, do you want to open up 2 the Rules and we can review it? It is 3 contained in the Courts of Justice Act , 4 section 137, I believe. 5 If you want to review the contents 6 of how a Sealing Order is issued and works 7 and is sought and what the case law is... 8 640. MR. KEMP: It is not my role to be 9 seeking it. 10 MS. SIMON: Of course not, I am saying 11 that it is something that we would do on 12 consent. And my understanding is that if 13 it was on consent, there should really be 14 no issue. 15 641. MR. KEMP: I am not prepared to do that 16 at this juncture without knowing the 17 contents. 18 MS. SIMON: Well, it is a bit of a 19 catch-22, then, isn't it? 20 642. MR. KEMP: Well, it is going to have to 21 be dealt with by the Court at some point. 22 23 BY MR. KEMP: 24 643. Q. Does the original agreement remain 25 in force or is it now operating pursuant to a

T. Agostini - 168 1 renewal of some sort? 2 MS. SIMON: I think that is really the 3 exact same question. You have asked the 4 term of the agreement, I have said that we 5 are not prepared to disclose that unless 6 you are agreeing to... 7 644. MR. KEMP: No, we are beyond that. You 8 are talking about a Sealing Order with 9 respect to the actual agreement itself. 10 MS. SIMON: Correct. 11 645. MR. KEMP: I am asking for details 12 related to the agreements. 13 MS. SIMON: That is right, you asked him 14 when it commenced, he wasn't certain, you 15 have asked about... 16 646. MR. KEMP: Yes, and that is why I have 17 asked for an undertaking to provide me with 18 that information. 19 MS. SIMON: And I have agreed to give 20 you that undertaking. Now you are asking 21 the term. 22 647. MR. KEMP: Yes. 23 MS. SIMON: And I am thinking that we 24 are now starting to get into the details of 25 it and if that is the case, we might as

T. Agostini - 169 1 well just do it as proposed. 2 648. MR. KEMP: No. You have dealt with the 3 issue with respect to the production of the 4 actual agreement itself. Tell me what the 5 term is. 6 MS. SIMON: I really don't think it is 7 appropriate for him to continue answering 8 those questions and I am not even certain 9 that he has knowledge of it anyway. 10 649. MR. KEMP: Well, I would ask for that to 11 be answered by way of undertaking. 12 MS. SIMON: What the original term was? 13 650. MR. KEMP: Yes. 14 MS. SIMON: Well, as I say, the details 15 of those agreements are proprietary and 16 confidential. 17 And so long as we have your 18 agreement, we are happy to give you all of 19 that. 20 651. MR. KEMP: The moment the defendant 21 infringed the copyright of my client, the 22 details are no longer proprietary and 23 confidential, because they impact upon my 24 clients' rights. They evidently purport to 25 grant something to these other entities,

T. Agostini - 170 1 which they have no entitlement or ability 2 to grant, hence the copyright infringement. 3 4 BY MR. KEMP: 5 652. Q. Were there any terms or provisions 6 that provided for renewal in the agreement with NHL 7 Centre Ice? 8 A. I don't know. 9 653. Q. I would like that by way of 10 undertaking. 11 MS. SIMON: I have the same response for 12 you. 13 14 BY MR. KEMP: 15 654. Q. What did NHL Centre Ice pay to CBC 16 for their rights? 17 MS. SIMON: The same answer. 18 655. MR. KEMP: Which is? 19 MS. SIMON: If the parties are willing 20 to consent to a Sealing Order, we are more 21 than happy to cooperate with producing all 22 the details of the agreement. 23 656. MR. KEMP: We are not talking about 24 production of the agreement itself now, I 25 am talking about the terms.

T. Agostini - 171 1 MS. SIMON: Nor am I talking about 2 production of the agreement, I am talking 3 about the details contained therein that 4 are relevant to the litigation. 5 6 BY MR. KEMP: 7 657. Q. What did the agreement with CBC and 8 NHL Centre Ice entitle NHL Centre Ice to use? 9 A. It entitled Centre Ice to provide, 10 as part of the Centre Ice package, Hockey Night in 11 Canada telecasts. 12 658. Q. And by its very nature, that would 13 include the composition? 14 A. That is right. And I pointed that 15 out in my note to John, when I wrote to him in July 16 of 2003. 17 MS. SIMON: What tab are you referring 18 to? 19 THE DEPONENT: Well, this is tab 6, book 20 2. I pointed out to John the seasons, the 21 amounts of money we were willing to offer 22 and that is about it. 23 24 BY MR. KEMP: 25 659. Q. So you never cut an agreement with

T. Agostini - 172 1 the plaintiffs with respect to that use, did you? 2 A. I will make the same comment I made 3 before. We did our best and we tried to negotiate 4 in good faith and we are where we are. 5 660. Q. What was the date of the e-mail you 6 referred to a moment ago? 7 A. July 2003. 8 661. Q. When in your e-mail do you refer to 9 NHL Centre Ice having used a Hockey Night in Canada 10 broadcast for the first time? 11 A. I said that it began...I think the 12 wording that I used...let me read the note: 13 "...I trust you are having a good summer 14 and that you have received payment..." 15 662. Q. I don't need you to read the note, 16 because it is in the record. 17 A. Can I read the note? 18 MS. SIMON: Yes, you can. 19 663. MR. KEMP: No, he can't. 20 MS. SIMON: Of course he can. 21 664. MR. KEMP: Off the record. 22 MS. SIMON: If he wants to complete an 23 answer, of course he can. 24 665. MR. KEMP: This isn't an answer. I 25 asked when NHL Centre Ice began to use the

T. Agostini - 173 1 HNIC broadcast. I am paying $4.50 a page 2 here, I don't want him reading an entire 3 e-mail. 4 MS. SIMON: I thought that you had a 5 follow-up question after that about where 6 it says in the note a reference to Centre 7 Ice. Isn't that what you asked 8 subsequently? 9 666. MR. KEMP: No, I am still asking the 10 first question. I am saying you sent this 11 e-mail to John in 2003. I am asking when 12 did NHL Centre Ice use the HNIC broadcast 13 for the first time? 14 MS. SIMON: No, that is a question you 15 asked many, many minutes ago, actually. We 16 have given an undertaking... 17 667. MR. KEMP: Well, except that now with 18 this e-mail communication of Mr. Agostini's 19 in front of him, I am assuming he is able 20 to identify when the NHL Centre Ice used 21 the broadcast of Hockey Night in Canada for 22 the first time. 23 24 BY MR. KEMP: 25 668. Q. Does the e-mail assist you in that

T. Agostini - 174 1 regard or no? 2 A. As I said earlier, if you let me... 3 669. Q. I don't want you to read the thing, 4 I just want you to tell me whether it assists you. 5 A. It does. I said earlier... 6 MS. SIMON: He is entitled to give a 7 contextual answer. So if it requires him 8 to read it, it requires him to read it. 9 10 BY MR. KEMP: 11 670. Q. What year? 12 A. I said the 1999/2000 season. And 13 then, as I added, if I may: 14 "...We have reviewed further use issues 15 with regards to the theme. As we have 16 stated to you, these are not significant in 17 our aim in increasing the visibility of 18 Hockey Night in Canada in markets outside 19 of Canada, through the NHL Centre Ice 20 package and through a small satellite 21 distributor in the UK as part of what is 22 called the North American Sports Network. 23 The further use of Centre Ice began 24 modestly in 1999/2000 season..." 25 671. Q. That is the answer to my question.

T. Agostini - 175 1 A. "...and increased in the 2001, et 2 cetera seasons. The further use is 3 anticipated to continue over the next four 4 hockey seasons. The North American Sports 5 Network arrangement began last December. 6 As discussed, we agree that we should be 7 providing further compensation for the use 8 of the theme. As we also discussed, it was 9 acknowledged that this further use was not 10 significant as it compares to the greater 11 use of the theme of Hockey Night in Canada 12 in Canada and to which it goes to an offer 13 for each season, for both NHL Centre Ice, 14 as well as the North American Sports 15 Network..." 16 672. Q. And the date of your e-mail? 17 A. July the 28th, 2003. 18 673. Q. July 28, 2003 is your e-mail to Mr. 19 Ciccone about that? 20 A. Yes. 21 674. Q. And NHL Centre Ice began to use the 22 Hockey Night in Canada broadcast with the 23 composition in 1999? 24 A. Yes. I don't know how many, though. 25 I mean, as I say, modestly.

T. Agostini - 176 1 675. Q. Modestly or immodestly, it doesn't 2 really matter in the grand scheme of things. They 3 began to use it in 1999. 4 A. The 1999 season. 5 676. Q. Which would be 1999, right? 6 MS. SIMON: No, it goes into 2000. 7 THE DEPONENT: No, it depends when it 8 began in the 1999/2000 season. 9 10 BY MR. KEMP: 11 677. Q. So at the very latest, they were 12 using it in the year 2000? 13 A. Somewhere in the year 2000, yes. In 14 that season, yes. 15 678. Q. Where is your agreement with the 16 plaintiffs in 1999 or 2000 that entitles anybody to 17 use the composition outside of Canada; where is that 18 agreement, because I haven't been able to find it. 19 MS. SIMON: Aren't we just zeroing back 20 again to the synchronization licence and 21 all of the questions that were asked about 22 that earlier? 23 679. MR. KEMP: No. 24 25 BY MR. KEMP:

T. Agostini - 177 1 680. Q. There is no agreement, is there? 2 A. It is the same language as we talked 3 about before. 4 681. Q. The CBC did not enter into any 5 agreement with the plaintiffs that would entitle CBC 6 to use the composition, or for the composition to be 7 used in the United States? 8 A. No, we have the right, as is in the 9 agreement, to licence the production outside of 10 Canada. We have the right to do that. What we have 11 not been able to do is to negotiate the term with 12 John. 13 682. Q. It would appear he is learning of 14 the fact that NHL Centre Ice is using the 15 composition three or four years after the fact. Are 16 you suggesting that the plaintiffs knew earlier than 17 this time, earlier than your e-mail? 18 A. Well, he may have, because he asked 19 me about it. 20 683. Q. Yes, did you answer it to him? 21 A. I did. 22 684. Q. When? 23 A. To the best that I could, and as he 24 knows, we asked the NHL as well for some information 25 on that. And that was some of the biggest

T. Agostini - 178 1 challenges, is exactly how much was it used. 2 And the issue, because I have John's 3 response to my e-mail, was John was seeking very, 4 very detailed information and it was difficult for 5 me to provide very, very detailed information. 6 685. Q. Heaven forbid if anybody ever used 7 the CBC trademark in this manner. There is no 8 effort to negotiate with any of the plaintiffs about 9 this use by NHL Centre Ice in 1999 or 2000, was 10 there? 11 A. I can't say, because in 1999/2000, 12 the usage was very small and in terms of how it came 13 up on the radar screen, it may have not been a 14 significant thing at that time. 15 686. Q. In the '99/2000 season, CBC had no 16 entitlement whatsoever to permit NHL Centre Ice to 17 use that composition without negotiating a deal with 18 the plaintiffs, did it? 19 A. We did. 20 687. Q. Well, and the last sentence of that 21 clause, section 6(d), says: 22 "...For an additional fee..." 23 Is that what you are talking about? 24 A. I am, indeed. 25 688. Q. "...to be negotiated in good

T. Agostini - 179 1 faith..." 2 et cetera: 3 "...as soon as possible before such 4 broadcasts are to commence..." 5 Do you see that passage? 6 A. I do. 7 689. Q. Where is your negotiation with the 8 plaintiffs before the broadcasts were commenced in 9 the 1999/2000 season? Where? 10 A. We don't have that. 11 690. Q. And as a result, you did not comply 12 with the terms of the agreement; correct? 13 A. We did not conclude our negotiations 14 with regards to the additional fees to... 15 691. Q. Conclude them? You hadn't even 16 started them. 17 A. Yes. I am telling you, we did not 18 conclude the negotiations. 19 692. Q. You hadn't even initiated any 20 negotiations, did you? In 1999/2000? 21 A. No, in 1999, we didn't. 22 693. Q. Does NHL Centre Ice continue to use 23 the Hockey Night in Canada broadcasts? 24 A. To the best of my knowledge yes. 25 694. Q. And at any point in time, has any

T. Agostini - 180 1 representative of CBC said to representatives of NHL 2 Centre Ice, "Hey, don't use the composition"? 3 A. I think that the NHL is well aware 4 of our concerns with regards to not having been able 5 to finalize the negotiations with John with regards 6 to this issue. 7 695. Q. Am I to infer from that statement 8 that NHL Centre Ice continues to use Hockey Night in 9 Canada broadcasts with the composition? 10 A. NHL Centre Ice continues to take 11 Hockey Night in Canada broadcasts with us right now, 12 yes. I think you asked me the question earlier. 13 696. Q. And by extension, that means they 14 continue to use the composition? 15 A. They take the Hockey Night in Canada 16 feed in its entirety. 17 697. Q. And that includes the composition? 18 A. That includes the composition. 19 698. Q. Has, at any point in time, a 20 representative of CBC said to NHL Centre Ice, "Don't 21 use the composition, because there is no agreement 22 and your use of the composition is copyright 23 infringement"? 24 A. I think that CBC has said to NHL, 25 "This is an issue that we want to resolve as soon as

T. Agostini - 181 1 possible." We have received a question from John 2 with regards to some of the specific uses on NHL 3 Centre Ice and we requested that information from 4 the NHL. 5 699. Q. Did you get it? 6 MS. SIMON: It is the subject of what I 7 have already said to you, they are 8 comfortable with it... 9 700. MR. KEMP: Nonsense. That is a breach 10 of copyright. It is a copyright 11 infringement that is happening on an 12 ongoing basis, that your client is refusing 13 to provide to us. And the failure to do 14 that is absolutely outrageous. I am not 15 giving the undertaking in those 16 circumstances, no way. 17 18 BY MR. KEMP: 19 701. Q. Did you get that information? I 20 didn't ask for production of it yet, I am asking if 21 you got that information? 22 A. I did not get the information. 23 702. Q. Does somebody at CBC have that 24 information? 25 MS. SIMON: This is what I am saying to

T. Agostini - 182 1 you. The NHL is prepared to cooperate and 2 is more than prepared to provide the types 3 of detail that I think you are seeking, 4 provided that it is: (a) relevant to the 5 litigation, and thus far, some of the 6 questions have been; and (b) that we can 7 all agree to it being the subject of a 8 Sealing Order. 9 Perhaps since it is already 3:40 in 10 the afternoon, you might want to give it 11 some thought after we leave today and when 12 we reconvene you can tell me whether you 13 are prepared to give that undertaking, and 14 we are more than happy to provide that to 15 you. 16 703. MR. KEMP: There is no way, on this 17 lovely green earth, I am going to provide a 18 party who is actively involved in copyright 19 infringement, who refuses to disclose 20 particulars of that copyright infringement, 21 with any form of undertaking whatsoever. 22 Period. 23 And I am entitled to know if CBC 24 knows the extent of that infringement. And 25 any claims that that is somehow subject to

T. Agostini - 183 1 proprietary right, I do not accept. 2 If CBC knows the extent of the 3 infringement in the United States, I want 4 to know it. 5 MS. SIMON: Well, we are more than 6 prepared to make that information available 7 to you in the form that I have outlined to 8 you. 9 I would suggest that you give it 10 some thought. I understand what your 11 response is at the moment right now, but I 12 am just suggesting that it may be 13 worthwhile thinking about and perhaps we 14 can come back once you have had an 15 opportunity to think it over. 16 704. MR. KEMP: Under any circumstances, 17 there are no circumstances where you are 18 going to get that undertaking. 19 When there is an ongoing breach of 20 copyright that is acknowledged, there is no 21 deal with my client with respect to 22 broadcast of the composition in the United 23 States, and you are refusing to provide 24 particulars of those details. 25 As far as I am concerned, neither

T. Agostini - 184 1 the NHL nor the defendant is in a position 2 to try and negotiate some terms with 3 respect to disclosure of that information. 4 It is not going to happen. 5 Absent Court Order. If the Court 6 tells me I am wrong, so be it. But no way 7 are you going to get that voluntary 8 concession from me. 9 MS. SIMON: Well, it seems to me that at 10 the outset, when I first proposed it, you 11 seemed at least amenable somewhat, but 12 increasingly you are digging your heels 13 in... 14 705. MR. KEMP: Well, that is before I had 15 confirmed evidence of the ongoing copyright 16 infringement. 17 MS. SIMON: Well, if that is the 18 position you take, I can't really do 19 anything except to say, yet again on the 20 record, that we are...I am here to say that 21 the NHL is prepared to be cooperative and 22 give that information, subject to the terms 23 that I have outlined. 24 706. MR. KEMP: The NHL, on these facts, is 25 not going to dictate any terms vis-a-vis my

T. Agostini - 185 1 clients. 2 MS. SIMON: Well, I don't know, my 3 interpretation is not that there is any 4 dictatorship taking place or any dictation, 5 for that matter, more just that if there is 6 a negotiation that can be reached in terms 7 of an undertaking, then everybody could... 8 the information would be out here. 9 707. MR. KEMP: When there is ongoing 10 copyright infringement, you are not going 11 to get my concession to say, "Oh, yes, we 12 are not going to disclose anything". No. 13 MS. SIMON: Well, I understand your 14 position. 15 16 BY MR. KEMP: 17 708. Q. The question I had asked previously, 18 and I don't believe I got an answer to, is: Has at 19 any point in time the CBC, whether it be you or 20 anybody else at the CBC, said to NHL Centre Ice, 21 "Hey, don't use the composition"? 22 MS. SIMON: You are asking that question 23 for the third time. 24 709. MR. KEMP: And I haven't got an answer. 25 MS. SIMON: I understand that you are

T. Agostini - 186 1 not satisfied with the answer that the 2 witness has given, but I think he has 3 answered the question twice now. 4 710. MR. KEMP: No, I have not got an answer, 5 Counsel, and I would like one. 6 MS. SIMON: Why don't we make this the 7 final time the question will be posed and I 8 would like the witness to give his best 9 answer... 10 711. MR. KEMP: So long as I get an answer, I 11 am fine, I will move on. 12 MS. SIMON: I think he has given his 13 best answer, but, please, go ahead. 14 15 BY MR. KEMP: 16 712. Q. Has anybody said, "Hey"... 17 A. Yes. What we said was after we 18 tried in good faith to negotiate with John the 19 further use for the United States, as is called for 20 in the contract, John sent a note back wanting to 21 know the details of every use. 22 And so we said to the NHL, "We need to know 23 exactly what use exactly you made of it". And we 24 are just in the process of trying to get all that. 25 But we did raise with the NHL our concerns

T. Agostini - 187 1 about not having finalized this, and I think that 2 John was aware that we were doing that, I said to 3 him many times we were doing that. 4 I know that Nancy Carrell told him we were 5 doing that. I think, actually, John had 6 conversations with the NHL exactly on this topic. 7 So, you know, I can't say any more than 8 that. We tried and we tried. 9 713. Q. The question was not what you did or 10 did not say about whether you had a deal with the 11 plaintiffs. The question was has the CBC ever said 12 to NHL Centre Ice, "Stop using the composition. Do 13 not use it"? 14 A. As I said before, we said to the NHL 15 there were some issues that were being raised by 16 John with regards to the use of the composition for 17 Centre Ice and that we had to deal with that. 18 714. Q. Did you tell them to stop as a 19 result of those issues? 20 A. I don't think we told them to stop. 21 We just said that we had very large concerns about 22 trying to redress this matter. 23 And, again, Centre Ice is a very large 24 compilation of hockey games. This is a small 25 component of what Centre Ice does.

T. Agostini - 188 1 So for us to stay stop using this to Centre 2 Ice...our hope was that we were going to resolve the 3 matter, which is what we tried to do. 4 And our focus was on trying to resolve the 5 matter. And that is why I sent a note and that is 6 why I put an offer in, to attempt to resolve the 7 matter, as we are required to do in our contract. 8 715. Q. You are also supposed to negotiate 9 the additional fee before such broadcasts are to 10 commence; right? 11 A. Yes, but you have to have a 12 negotiation at some point in time and acknowledge 13 that, okay, there is something we have to do with 14 regards to the past and let us do something now for 15 the future, which was the intent of my note. 16 Because it didn't refer to just the past, it 17 referred to ongoing seasons. 18 716. Q. I gather, in answer to that 19 question, then, the answer is no, nobody from CBC 20 has ever said to NHL Centre Ice, "Do not use the 21 composition, that is bad, that is copyright 22 infringement"? 23 A. I wouldn't characterize it that way. 24 717. Q. I guess not. That is why we are 25 here. You said, and let me rephrase the question,

T. Agostini - 189 1 nobody from CBC has said, "Hey, NHL Centre Ice, 2 don't use the composition"? 3 A. No, I said, and I am going to repeat 4 again, we said to NHL, "This is a problem that John 5 has raised, we want to resolve it. And we need your 6 help to resolve it". 7 718. Q. So you didn't tell them, no, don't 8 use it? 9 A. Well, as I said to you before... 10 719. Q. You told them, "We have issues with 11 John"? 12 A. "We have to resolve this issue with 13 regards to the copyright on this piece of music". 14 720. Q. So you are implicitly endorsing 15 their ongoing use of it? 16 A. No, because if we had not suggested 17 with them that there was a problem and if I had not 18 responded to John that we were seeking the 19 information from the NHL, and if we had ignored 20 John's queries, then, yes. But, in fact, that is 21 not at all what happened. 22 MS. SIMON: Let me say one thing. In 23 fairness, I am not sure if there may have 24 been other people. I think you have made 25 it known what you are talking about on

T. Agostini - 190 1 behalf of the CBC, but let me just say, if 2 there is anybody else that you don't know 3 of, that is fine, too. We are certainly 4 willing to make inquiries in that regard. 5 721. MR. KEMP: Thank you, and please do. 6 MS. SIMON: Okay. U/T 7 722. MR. KEMP: And in response to those 8 inquiries, if anybody at CBC or a CBC 9 representative has ever advised NHL Centre 10 Ice not to use the composition, I would 11 like to know the date that that advice was 12 relayed, the manner in which it was 13 relayed, whether it be by e-mail, by 14 correspondence, by telephone communication. 15 By whom and to whom it was relayed. And 16 the response to such advice, if any was 17 ever given by NHL Centre Ice. May I have 18 that undertaking? 19 MS. SIMON: I will give you an 20 undertaking to make best efforts to find 21 out whether anyone at CBC advised NHL 22 Centre Ice to stop using the composition 23 and as well, I will give you details of the 24 date of when that was done. U/T 25 And as to the rest of it, I will

T. Agostini - 191 1 take it under advisement, as to the manner 2 in which that correspondence or exchange 3 might have taken place, the by whom and to 4 whom and the response that was received by 5 the NHL. U/A 6 723. MR. KEMP: I would also ask for an 7 undertaking to produce copies of all CBC 8 documents related to communications with 9 NHL Centre Ice concerning this deal and 10 more specifically, related to the 11 composition and these discussions that CBC 12 had issues with the plaintiffs. 13 MS. SIMON: Well, no, I refuse. I am 14 not giving you all CBC communications with 15 respect to the Centre Ice deal. That is 16 just too global. /R 17 724. MR. KEMP: In that case, I want 18 production of every single document between 19 CBC and NHL Centre Ice, where reference to 20 the composition or any of the plaintiffs or 21 John Ciccone is made. 22 MS. SIMON: I may agree to that but I do 23 want to think about that. U/A 24 25 BY MR. KEMP:

T. Agostini - 192 1 725. Q. Have you had discussions or 2 conversations with anybody else at CBC concerning 3 the NHL Centre Ice use of the composition? 4 A. When? 5 726. Q. Well, let's, for starters, talk 6 about in the past year? 7 A. In the past year? Well, in 8 preparation for this, yes. 9 727. Q. Who, your legal counsel or somebody 10 else? 11 A. Legal counsel, Bill Atkinson. 12 728. Q. Tell me about your conversations 13 with Mr. Atkinson in preparation for this. 14 A. Well, basically that this was going 15 forward and that, you know, John had asked for some 16 information that he tried to get, as did Nancy 17 Carrell try to get with regards to some of the 18 details. 19 Because as far as I was concerned, what we 20 were trying to do is provide John with the detail of 21 markets. I mean, his note says it, if you read his 22 note. 23 The note he sent me was with regards to he 24 wanted us to quantify in detail, exactly where this 25 was going in the USA, including...

T. Agostini - 193 1 MS. SIMON: This is John Ciccone's note, 2 right? And at what tab and what date? 3 THE DEPONENT: This is part of my tab, 4 tab 6, Volume 2. 5 MS. SIMON: What is the date of the 6 e-mail? 7 THE DEPONENT: I think he sent it July 8 the 29th. And what he was looking for was 9 were there not uses in Japan, Scandinavia, 10 USA and other territories, was there 11 another satellite distributor in the UK 12 known as Sky, or something similar. 13 But then he wanted to know 14 information regarding viewership and reach 15 and these carriers, broadcasters, 16 subscription membership numbers. 17 And I don't have that information. 18 I don't have it. It is only something that 19 we could get through the NHL, which we have 20 sought. And as counsel has said... 21 MS. SIMON: They are willing to be 22 cooperative. 23 729. MR. KEMP: Hang on. They have been 24 promising...Mr. Agostini and Ms. Carrell 25 were representing to Mr. Ciccone for some

T. Agostini - 194 1 period of time that they were asking for 2 this information and giving Mr. Ciccone 3 every reason to believe that he would get 4 it. And now all of a sudden there are 5 conditions attached? 6 MS. SIMON: That was our understanding, 7 as well. 8 730. MR. KEMP: Do you have this information? 9 Does CBC have this information now? 10 MS. SIMON: I am telling you we can only 11 provide it on the... 12 731. MR. KEMP: You can only provide the 13 extent of somebody's copyright infringement 14 if they agree to keep it secret. Yikes. 15 MS. SIMON: Well, I don't really think 16 there is a need to be sarcastic. 17 732. MR. KEMP: Well, forgive me, but if ever 18 there is a situation that calls for it, it 19 is probably that. 20 Why don't we adjourn there? I have 21 got to take instructions about adding the 22 NHL. 23 MS. SIMON: That is fine. 24 25 26

T. Agostini - 195 1 REPORTER'S NOTE: 2 3 Please be advised that any undertakings, objections, under advisements and 4 refusals are provided as a service to all counsel, for their guidance only, and do not purport 5 to be legally binding or necessarily accurate and are not binding upon Victory Verbatim 6 Reporting Services Inc. 7 8 9 10 I hereby certify the foregoing to be a true and accurate transcription of the above 11 noted proceedings held before me on the 15TH DAY OF MARCH, 2006 and taken to the 12 best of my skill, ability and understanding. 13 14 } 15 } Certified Correct: 16 } 17 } 18 } 19 } 20 } ________________________________ 21 } Michelle L. Cabuga 22 } Verbatim Reporter 23