Court File No. 73592/04 ONTARIO SUPERIOR COURT OF JUSTICE MLC/ld 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 Continued Examination for Discovery of TONY AGOSTINI, produced and examined on behalf of the Corporate Defendant herein, taken at the offices of VICTORY VERBATIM REPORTING SERVICES, Suite 900, Ernst & Young Tower, 222 Bay Street, Toronto, Ontario, on the 16th day of March, 2006. - - - - - - - - - - APPEARANCES : KEVIN E. KEMP, ESQ. -- for the Plaintiffs LYLA SIMON, MS. -- for the Defendant ALSO PRESENT : John Ciccone Nancy Lee

- i - INDEX OF PROCEEDINGS PAGE NUMBER TONY AGOSTINI, resumed Continued Examination by MR. KEMP 196 - 363

- ii - INDEX OF EXHIBITS EXHIBIT PAGE NUMBER DESCRIPTION NUMBER 4 DVD, with three promotional items 238

- iii - INDEX OF UNDERTAKINGS REFERENCE PAGE QUESTION NUMBER NUMBER NUMBER 1 218 802 2 221 812 3 225 829 4 228 839 5 232 852 6 239 881 7 239 882 8 240 884 9 240 886 10 242 891 11 253 936 12 267 1000 13 270 1009 14 270 1010 15 270 1011 16 271 1012 17 271 1014 18 272 1019 19 272 1021 20 273 1025

- iv - INDEX OF UNDERTAKINGS (Cont'd) REFERENCE PAGE QUESTION NUMBER NUMBER NUMBER 21 274 1027 22 275 1032 23 276 1035 24 278 1040 25 285 1069 26 290 1087 27 293 1097 28 313 1160 29 317 1168 30 320 1177 31 321 1179 32 329 1207 33 338 1245 34 339 1252 35 340 1253 36 341 1257 37 345 1267

- v - INDEX OF UNDER ADVISEMENTS REFERENCE PAGE QUESTION NUMBER NUMBER NUMBER 1 223 824 2 247 910 3 254 943 4 256 951 5 319 1173 6 327 1201 7 332 1221 8 335 1231 9 341 1257

- vi - INDEX OF REFUSALS REFERENCE PAGE QUESTION NUMBER NUMBER NUMBER 1 296 1108 2 360 1324

T. Agostini - 196 1 TONY AGOSTINI, resumed 2 CONTINUED EXAMINATION BY MR. KEMP: 3 733. MR. KEMP: I understand that counsel 4 wishes to clarify one of the answers, or 5 has, rather, had details with respect to 6 certain of the questions that were asked in 7 the course of yesterday's examination, with 8 respect to the timing of the broadcast of 9 The Circus Is In Town. 10 MS. SIMON: Sorry, can we take a break? 11 I do apologize. 12 13 --- DISCUSSION OFF THE RECORD 14 15 MS. SIMON: Yesterday, we were 16 discussing The Circus Is In Town, and you 17 had some questions around when it was 18 aired, and what the defendant's 19 justification was within the governing 20 contract. 21 I have information that it was aired 22 September 26, 2002. It subsequently was 23 played on November 9th, 2002. During the 24 second airing, the song was removed from 25 the airing of the program. No, I

T. Agostini - 197 1 apologize. The credits were included for 2 Dolores Claman within the second play. 3 And as far as it fitting into the 4 contract, it does fit into the 5 synchronization license. On further review 6 of the license, we realized that it had 7 been dated to September 1, 2002, therefore, 8 that would govern the airing of the show on 9 September 26th, 2002. So, that should 10 cover off the undertaking that was given in 11 that regard. 12 Now, we just adjourned a moment ago so 13 that I could take a phone call. And the 14 nature of that call is that, as you know, 15 and I think as was obvious from the 16 witness's testimony yesterday, we have been 17 making... 18 734. MR. KEMP: Let's go off the record. I 19 want to hear what you are talking about. 20 21 --- DISCUSSION OFF THE RECORD 22 23 MS. SIMON: So, we were just having some 24 off the record discussions regarding the 25 items and information and documents that

T. Agostini - 198 1 you were seeking yesterday regarding the 2 NHL Centre Ice packages and broadcasts. 3 And I have indicated to you that it appears 4 that the efforts that have been made in the 5 last number of years, on behalf of CBC, 6 have finally come to some fruition... 7 735. MR. KEMP: Well, hang on. That is 8 evidence, and I haven't heard evidence of 9 that. 10 MS. SIMON: Well, I would be happy to 11 have the witness say so, if you prefer, but 12 I... 13 736. MR. KEMP: Okay. But I don't want to 14 hear that kind of posturing exercise... 15 MS. SIMON: It is not posturing. I am 16 simply repeating what Mr. Agostini said 17 yesterday on the record numerous times. 18 737. MR. KEMP: Well, then let me canvass 19 that, because now I hear these statements 20 about how you are going to be cooperative, 21 and I have to take that with a bit of some 22 hesitation because, are you telling me that 23 the CBC was incapable of providing my 24 client with details of the transaction with 25 NHL Centre Ice when it first entered into

T. Agostini - 199 1 the transaction in the 1999-2000 season? 2 MS. SIMON: I really don't care to give 3 evidence. If you want to ask Mr. Agostini 4 those questions, which I think, actually, 5 you already did cover yesterday, I am happy 6 to have you put them to him. But if I may, 7 I will just finish what I was about to say, 8 which is that... 9 738. MR. KEMP: Well, you were 10 editorializing. I don't mind you telling 11 me what you are going to do now... 12 MS. SIMON: I think that was my 13 adjective yesterday. 14 739. MR. KEMP: I learn from instructive 15 counsel. 16 MS. SIMON: In any event, our view, as 17 of yesterday, was that we very much wanted 18 to get this information into your hands, 19 and I am pleased to say that the NHL has 20 agreed that, so long as the information is 21 relevant to the litigation, that we are 22 prepared to disclose to you answers to some 23 of the questions that you were seeking 24 yesterday. 25 Now, off the record, you have given me

T. Agostini - 200 1 some idea of what you will be seeking, and 2 you have indicated that there will be 3 further issues that you will wish to 4 canvass, once you have certain things in 5 hand. 6 740. MR. KEMP: Let me, now, say what I have 7 to say. I am disappointed I have not been 8 provided with adequate documentary 9 disclosure in advance of today, because 10 clearly, the evidence of Mr. Agostini is 11 what was sold to NHL Centre Ice was the 12 entire Hockey Night in Canada broadcast, 13 which includes the composition. That is 14 not authorized because there was never any 15 deal between the CBC and my clients on that 16 issue. 17 MS. SIMON: I understand that you are 18 disappointed. There is really no point in 19 you giving evidence here. 20 741. MR. KEMP: Well, no. What, we are 21 supposed to applaud you for saying, now, 22 that you are going to disclose it? That 23 is...I don't need to get into this debate 24 or discussion with you. I am not limiting, 25 in any way, shape or form, the questions I

T. Agostini - 201 1 have proposed to ask in follow-up. 2 MS. SIMON: Nobody has asked you to. 3 742. MR. KEMP: But it has guaranteed we 4 have, at least, another day or two of 5 examination once I do get documentary 6 disclosure. So, that is... 7 MS. SIMON: Well, to make things fair, I 8 have said that I am prepared to, right now, 9 today, put information into your hands, and 10 you have declined that offer. 11 743. MR. KEMP: No, I haven't. Please 12 provide me with a copy of the original 13 agreement between CBC and NHL Centre Ice. 14 Will you provide that to me today? 15 MS. SIMON: If I can do so, and I am not 16 sure I can, but if I can do so, will that 17 end the discovery today? 18 744. MR. KEMP: No. 19 MS. SIMON: Well, then... 20 745. MR. KEMP: How can you expect me... 21 MS. SIMON: ...you are reserving your 22 right, in any event, aren't you? 23 746. MR. KEMP: ...but you have just finished 24 telling me you are going to try and put it 25 in my hands today.

T. Agostini - 202 1 MS. SIMON: I said if I could. I am not 2 sure if I can. I don't even know if that 3 is something we are prepared or able to 4 disclose. 5 747. MR. KEMP: Please produce copies of any 6 renewals or subsequence license agreements 7 between CBC and NHL Centre Ice, can you do 8 that? 9 MS. SIMON: Same answer. I am prepared 10 to take a break and see what I can get for 11 you. 12 748. MR. KEMP: Sure. How long do you need? 13 MS. SIMON: A couple of minutes. 14 749. MR. KEMP: Okay. Just so we are clear 15 on the record, I want every single piece of 16 paper related to the negotiations and 17 ongoing discussions of every employee 18 and/or representative of CBC related to 19 those deals. 20 MS. SIMON: Well, I mean, you know, all 21 of these items are under advisement until I 22 can go and find out. But what I would like 23 to do and what I have said to you that I 24 would like to do is, I would like to answer 25 as many of your things, at least on an oral

T. Agostini - 203 1 basis, on the record, and see if you can 2 answer some of your questions, or put some 3 of the information to Mr. Agostini, such 4 that you can satisfy yourself of some parts 5 of it. If you are not prepared to do that, 6 then there is nothing more I can do. 7 750. MR. KEMP: No. You have offered to put 8 documentation in my hands related to this 9 issue, which yesterday, you refused, and 10 which my client has been attempting to 11 obtain for many years. I hear you say you 12 will try and put it in my hand, but I 13 haven't seen anything, and certainly, you 14 don't need my permission to put it in my 15 hands. 16 MS. SIMON: I am not seeking your 17 permission, trust me, but... 18 751. MR. KEMP: Do you have anything to give 19 me, now, today, related to that 20 transaction, and all negotiations leading 21 up to it? 22 MS. SIMON: First of all, before I 23 answer your question, I would just like to 24 say that I don't want you to think, and I 25 hope we have made clear thus far, that it

T. Agostini - 204 1 is not us who have been holding back the 2 information... 3 752. MR. KEMP: Nonsense. 4 MS. SIMON: It is not nonsense. That is 5 the case. We were hamstrung until 20 6 minutes ago. 7 753. MR. KEMP: Well, that is very adequate 8 posturing at this juncture. This is the 9 first my client has heard that, "We haven't 10 been able to tell you" because the NHL 11 wouldn't let you. You signed the deal. 12 Your client signed the deal. There is 13 nothing to prevent you from providing Mr. 14 Ciccone with a copy of the deal, so that 15 is... 16 MS. SIMON: Well, on the contrary, it 17 contains confidentiality... 18 754. MR. KEMP: Did you offer to redact 19 portions of the deal for him? Did your 20 client? No. That is...you know, it is 21 fine and dandy for that kind of posturing 22 to happen now, but it is not being 23 accepted. I am looking for documentary 24 disclosure to this point in time. I 25 haven't got it.

T. Agostini - 205 1 MS. SIMON: So, you are not interested 2 in.... 3 755. MR. KEMP: Of course I am interested. I 4 just asked you for a... 5 MS. SIMON: If I can finish my question, 6 then you will know what I am offering to 7 give you right now, which is, if you would 8 like, I am prepared to make a phone call 9 and get as much of the answers provided to 10 you right away, right now. But if you 11 would prefer to just proceed, I can't stop 12 you... 13 756. MR. KEMP: No. You have a positive 14 obligation to provide me with relevant 15 documents on an ongoing basis. I don't 16 have to ask for it. I shouldn't have to 17 ask for it. Of course I want it. If you 18 can get it, let's get it. 19 MS. SIMON: All right. Well, let me see 20 what I can find out. I don't think that I 21 can put any paper in your hands right now, 22 but I am certainly willing to try to give 23 you any of the other answers on an oral 24 basis right now. 25 757. MR. KEMP: Most of my requests for

T. Agostini - 206 1 undertakings related to actual documentary 2 disclosure. 3 MS. SIMON: Agreed. But I think that 4 you have questions, for example, about the 5 frequency of broadcast, the broadcast 6 reach, the markets, the market size, and 7 viewership that I would propose to answer 8 right now. 9 758. MR. KEMP: No. I said, once I see the 10 documents, once I see the frequency of any 11 broadcast by NHL Centre Ice, I would 12 undoubtedly have questions arising from 13 that. And off the record, I identified 14 certain of the things that I would be 15 asking for off the top of my head. 16 You presumably don't have that for me 17 today. I am not prepared to accept any 18 answers to those kinds of questions in the 19 dark without the benefit of making 20 appropriate reference to the actual 21 documents in question. I was just giving 22 some examples. Those aren't formal 23 undertakings or formal requests for 24 undertakings. 25 MS. SIMON: All right.

T. Agostini - 207 1 759. MR. KEMP: I will undoubtedly have 2 questions related to the reach of any 3 broadcast by NHL Centre Ice. But at this 4 juncture, without having been provided the 5 benefit of any documentary disclosure on 6 the issue and given Mr. Ciccone's several 7 years of attempting to get the information, 8 we are completely in the dark here. 9 We know that Dolores Claman's 10 composition is being used by NHL Centre Ice 11 with the permission, apparently, of CBC, 12 and that is not right. That is not 13 allowed. We should have had answers years 14 ago. I asked Mr. Freiman for those answers 15 sometime ago. 16 So, you know, it is fine for you to 17 say, "Oh, we are going to give it to you 18 now". It is a little late, but I suppose 19 better late than never. But, yes, I am all 20 ears. If you have information to give me, 21 please do so. 22 MS. SIMON: Well, now I am a little bit 23 confused about your position. Do you want 24 me to attempt to make a call, or calls, and 25 try to answer those items, or are you

T. Agostini - 208 1 saying that...I am hearing you say that it 2 would be so out of context without... 3 760. MR. KEMP: I told you, hypothetically, 4 what I would likely or possibly be asking 5 for once I saw copies of the relevant 6 documents from CBC. 7 MS. SIMON: I understand. 8 761. MR. KEMP: I can't ask you the questions 9 that you just cited that I referred to as 10 hypothetical questions off the record 11 without the benefit of that documentary 12 disclosure. If you want to provide me 13 answers to questions that I haven't asked, 14 go ahead. 15 What I am looking for is the 16 documentary disclosure. I will undoubtedly 17 have questions arising from those documents 18 related to viewership, and market reach, 19 and that sort of thing. But at this stage, 20 you are asking me to ask questions in a 21 vacuum. I can't do that. 22 MS. SIMON: Nor do I want you to, but I 23 am looking at the clock and it is 10:45, 24 and we have had this back and forth for 25 some time now.

T. Agostini - 209 1 762. MR. KEMP: Do you have anything to give 2 me? 3 MS. SIMON: I do not have any paper to 4 give you, sitting here right now. 5 763. MR. KEMP: Do you have any answers to 6 give me to questions I posed yesterday? 7 MS. SIMON: Are we talking specifically 8 about the Centre Ice, or about other items? 9 764. MR. KEMP: Anything. 10 MS. SIMON: No. I have given you what I 11 have for now, and of course, we will answer 12 our undertakings in due course. 13 14 BY MR. KEMP: 15 765. Q. Mr. Agostini, did you have an 16 opportunity to determine when, specifically, the 17 initial agreement with NHL Centre Ice was made? 18 A. No, not any more than what I gave 19 you yesterday. 20 766. Q. And when that agreement was entered 21 into, which I understood to be the 1999-2000 season, 22 you didn't tell Mr. Ciccone or anyone else who 23 represented the plaintiffs about it, did you? 24 A. I think when...well, first of all, I 25 wasn't the main player in negotiating the Centre Ice

T. Agostini - 210 1 agreement. So, in terms of the details of exactly 2 when it was done, I can't give you those details 3 because I don't have them. 4 767. Q. Did you know about it? 5 A. I knew about it in very general 6 terms, but I didn't know, and I still don't know 7 about it in detailed terms. And I did...and when I 8 did correspond with John when I made that offer in 9 July of... 10 768. Q. 2002? 11 A. Yes, whatever that date was, I said 12 to John that Centre Ice had been using some of our 13 games since the 1999-2000 season. 14 769. Q. And that was the first time you told 15 him? 16 A. I don't know about that. I don't 17 think I can say that, and I am not sure you can say 18 that. 19 770. Q. Well, it is going to be his evidence 20 that... 21 A. Right. So, ask him. So... 22 771. Q. No. But I am putting a question to 23 you. 24 A. No. But I think there may have been 25 verbal discussions about queries around it, and I

T. Agostini - 211 1 may have said to him...I may have said to him, "I 2 have to go and see. I have to get determination." 3 But in terms of formal exchange of information, I 4 don't think, and I would have to look in my files, I 5 am not certain that there was any communication 6 formally between myself and John describing NHL 7 Centre Ice in any detailed way. 8 772. Q. Well, what is in your files that is 9 not part of your documents? 10 A. No, it is all here. 11 773. Q. Okay. And I can tell you, having 12 reviewed those documents in some detail, that prior 13 to July of 2002, or whenever that date of that 14 e-mail is, Mr. Ciccone, nor any of the plaintiffs 15 had been told that... 16 A. No. But he mentioned it to me, so 17 he knew. 18 774. Q. He knew... 19 A. So, he knew more about it than, in 20 some way, than I do. 21 775. Q. Well, he knew that somebody was 22 infringing his client's copyright, and he is asking 23 you, "How did this happen?" 24 A. And, as I said to you yesterday and 25 as I am repeating to you today, we undertook, to the

T. Agostini - 212 1 best of our ability, to provide him with the 2 details. 3 776. Q. And four years later, roughly, we 4 are still waiting, aren't we? 5 A. To be clear, I...when I wrote to 6 John in that note, I said to him, "We have been 7 using the theme in the Centre Ice as of 1999-2000", 8 and I made him an offer with each of those seasons, 9 a monetary offer, to deal with his request with 10 regards to the use of the theme. 11 And he wrote back and asked for the detailed 12 information that I don't have. I don't have now. I 13 did not have then. And you heard counsel today 14 describe the...what we had to go through to get to 15 the point today of providing you with that 16 information. And I still don't have that 17 information. 18 777. Q. Well, did your agreement with NHL 19 Centre Ice identify the extent to which NHL Centre 20 Ice could use the Hockey Night in Canada broadcast? 21 A. I can't answer the question because 22 I haven't read the deal in detail. 23 778. Q. And had you desired to have that 24 information, is it fair to say that it would have 25 been a relatively easy matter for you to pick up the

T. Agostini - 213 1 telephone to whomever had entered into that deal and 2 ask, "How much is Centre Ice entitled to use our 3 broadcast?" 4 MS. SIMON: That is a bit of a 5 complicated question... 6 779. MR. KEMP: No, it is not. 7 MS. SIMON: I didn't understand it. 8 THE DEPONENT: The answer to the 9 question is, no. 10 11 BY MR. KEMP: 12 780. Q. It would not have been difficult for 13 you to do? 14 A. No. It wouldn't have been as simple 15 as you say because the questions that he 16 was...because my note clearly talked about seasons, 17 and in seasons there are broadcasts which are 18 Saturday night, which I detailed yesterday when we 19 broadcast Hockey Night in Canada. 20 It doesn't take a rocket scientist to figure 21 out when we are Saturday night, it is Saturday 22 night. That is when it goes there, when we describe 23 about it in terms of seasons. But I don't have, did 24 not have, still do not have, the detail of even what 25 you are talking about today, viewership and those

T. Agostini - 214 1 kinds of very detailed things which belong to the 2 NHL. They don't belong to us. 3 I don't know to the extent of whether it is one 4 person in Michigan or 100 persons in Michigan who 5 watch Centre Ice. I don't have that information. 6 781. Q. Well, that is not what he was 7 asking. 8 A. No. But when you request... 9 782. Q. No, that is not what he was asking. 10 A. No, it is. I mean, I will read the 11 note to you. 12 783. Q. And just for clarity, you are 13 reading John...let's establish for a moment. 14 A. I will read the note to you. 15 784. Q. John Ciccone immediately wrote to 16 you and said, "What are the details of this 17 extra-territorial use?", didn't he? 18 MS. SIMON: What do you mean by 19 "immediately"? 20 785. MR. KEMP: Well... 21 THE DEPONENT: Let's just look at the 22 note. 23 24 BY MR. KEMP: 25 786. Q. Mr. Agostini, let me just approach

T. Agostini - 215 1 in a different manner. Do you acknowledge Mr. 2 Ciccone e-mailed you on numerous occasions asking 3 you for details of extra-territorial use of the 4 composition? 5 MS. SIMON: That is not a fair question. 6 787. MR. KEMP: It is absolutely a fair 7 question. 8 MS. SIMON: No, "numerous" is very much 9 a subjective term. If you want to take him 10 to the various e-mails, that is fine, or if 11 you want to say, "Did he e-mail you on ten 12 occasions?", or whatever, that is fine. 13 But "numerous" is not a question he is 14 going to answer. 15 16 BY MR. KEMP: 17 788. Q. It has become a farce. You never 18 told him ever, did you? And to this date, you 19 haven't told him. 20 A. No, that is unfair. I answered the 21 question, and I told you, as I told him, this number 22 of seasons that the Hockey Night in Canada was being 23 used. And then, in terms of the detail, there is so 24 much correspondence from John on a whole bunch of 25 different questions. And every time that he wrote

T. Agostini - 216 1 to me, I did my best to try to get him the 2 information. 3 789. Q. Mr. Agostini, I have a very simple 4 question for you: You knew that in order for the 5 composition to be used outside of Canada, you had to 6 have a deal with the plaintiffs, right? 7 A. And that is what I tried to do. 8 790. Q. But you didn't have one, did you? 9 A. No, but I made every effort to try 10 to get the deal. 11 791. Q. Given that you knew, you did not 12 have a deal with the plaintiffs, why did you not 13 stop it? 14 A. Why didn't I not stop what? 15 792. Q. The use of the composition outside 16 of Canada, because you knew you didn't have a deal 17 with Mr. Ciccone. 18 A. Because our intent, all along, was 19 to get a deal. 20 793. Q. But intent isn't good enough. He 21 was telling you that you were breaching copyright, 22 and you never said once, "Stop using the composition 23 outside of Canada", did you? 24 A. No, because there was no reason to 25 stop using it outside of Canada, because we were

T. Agostini - 217 1 trying to work out a deal. 2 794. Q. He told you to stop it. 3 A. Where? 4 795. Q. You are denying he told you to stop 5 it? 6 A. No. I am asking you where did he 7 ask me to stop it? 8 796. Q. I am asking you whether you are 9 telling me... 10 A. Show me where he asked me to stop 11 it. 12 797. Q. We will get there. There are a 13 couple of housekeeping matters. It is alleged in 14 the Statement of Claim that the composition was used 15 in broadcasts of the 2004 World Cup of Hockey. Is 16 that your understanding? 17 MS. SIMON: What paragraph is that? 18 19 BY MR. KEMP: 20 798. Q. Paragraph 34(g). 21 A. Yes. 22 799. Q. Was the composition used in the 2004 23 World Cup of Hockey? 24 A. The World Cup of Hockey was produced 25 by Hockey Night in Canada.

T. Agostini - 218 1 800. Q. Was it used for every game broadcast 2 via CBC? 3 A. It was used for every Hockey Night 4 in Canada broadcast of the World Cup. 5 801. Q. And how many broadcasts were there? 6 A. Off the top of my head, I don't 7 remember. 8 802. Q. I would like production of the 9 broadcast of each and every game, a copy of the 10 broadcast of each and every game. 11 MS. SIMON: I am assuming that that is 12 something we can give him? 13 THE DEPONENT: Yes. It is just tons of 14 tape, that is all. 15 MS. SIMON: You have my undertaking. U/T 16 17 BY MR. KEMP: 18 803. Q. Thank you. It is alleged at 19 paragraph 34(j), the composition was used in a 20 broadcast of Royal Canadian Air Farce, is that 21 correct? 22 MS. SIMON: It actually says: 23 "...Royal Canada..." 24 Is that just a typo? 25 804. MR. KEMP: I am not sure.

T. Agostini - 219 1 THE DEPONENT: It is Royal Canadian Air 2 Farce. 3 MS. SIMON: Canadian. 4 805. MR. KEMP: Royal Canadian? Then it is a 5 typo. 6 MS. SIMON: Okay. 7 8 BY MR. KEMP: 9 806. Q. Was that the case? 10 A. I don't know. It is possible. I 11 don't know. 12 807. MR. KEMP: Counsel, is there a reason I 13 haven't been produced a copy of the 14 broadcast? We have previously identified 15 it in our Response to Demand for 16 Particulars as having been broadcast on 17 October 11, 2002. 18 THE DEPONENT: Okay. Are you saying 19 that...let me ask you the question. Are 20 you saying that it was...that the Hockey 21 Night in Canada theme was used in Royal 22 Canadian Air Farce on October 11, 2002? 23 24 BY MR. KEMP: 25 808. Q. I believe.

T. Agostini - 220 1 A. And it wasn't cleared? 2 809. Q. That is my position. 3 A. We can check that. We can check 4 that, because, as you know, or John knows very well, 5 if it was used by Royal Canadian Air Farce, they 6 would normally clear it, or they deal with the issue 7 of having to clear music. But I am not involved 8 with the production line of Canadian Air Farce. But 9 they...our folks in music clearance are very, very 10 astute and concerned about making sure that they 11 clear this stuff. 12 MS. SIMON: How about if I give you the 13 undertaking to verify if the theme was used 14 on October 11, 2002, and if so, to verify 15 whether a clearance was obtained. 16 810. MR. KEMP: No. I want the tape. 17 MS. SIMON: Of that date? 18 811. MR. KEMP: Of the Royal Canadian Air 19 Farce of that date. 20 THE DEPONENT: Yes. We will have to ask 21 them. 22 MS. SIMON: Is that something we can 23 give him? 24 THE DEPONENT: Yes. 25 MS. SIMON: You just want a copy of the

T. Agostini - 221 1 tape of that date, in that case? 2 812. MR. KEMP: Yes, of that particular 3 broadcast. 4 MS. SIMON: Fine. U/T 5 6 BY MR. KEMP: 7 813. Q. Now, I have previously asked you 8 about the curling. I would ask for tapes of each 9 broadcast of the Nokia Briar, the Karcher Women's 10 Junior, the Karcher Men's Junior... 11 MS. SIMON: Can you slow down? Nokia 12 Briar. 13 814. MR. KEMP: Yes. 14 MS. SIMON: Next? 15 815. MR. KEMP: The Karcher Women's Junior. 16 MS. SIMON: Are these affiliated with 17 years? 18 816. MR. KEMP: 2003, I believe. 19 MS. SIMON: These are all 2003? 20 817. MR. KEMP: Yes. 21 THE DEPONENT: Do you mean Karcher? 22 818. MR. KEMP: Is it Karcher or Cartier? 23 MS. SIMON: How do you spell that? 24 THE DEPONENT: No, it is Karcher. I 25 think it is K-A-R-C-H-E-R. Which years?

T. Agostini - 222 1 BY MR. KEMP: 2 819. Q. 2003. 3 A. 2003? 4 820. Q. I believe so, yes. 5 A. You believe so, or.. 6 821. Q. Yes, 2003, because that is when 7 SOCAN paid my clients money for the use in the 8 curling context, so... 9 A. Okay. 10 MS. SIMON: Sorry, can we just back up. 11 I am not sure I have the list correct. 12 Nokia Briar... 13 822. MR. KEMP: I haven't finished the list. 14 MS. SIMON: ...Karcher... 15 THE DEPONENT: Karcher Men's Juniors and 16 Karcher Women's Juniors. 17 18 BY MR. KEMP: 19 823. Q. The 2003 Women's Canada Cup. 20 A. 2003 Women's Canada Cup. 21 824. Q. 2003 Men's Canada Cup, and the 2003 22 Ford World Curling Championship. May I have 23 production of all of those tapes, please, tapes of 24 every single broadcast? 25 MS. SIMON: I will give you the

T. Agostini - 223 1 undertaking that we will review the tapes, 2 and insofar as any of them are anything in 3 addition to promotion for Hockey Night in 4 Canada, we will provide you a copy. Is 5 there a reason that... U/A 6 7 BY MR. KEMP: 8 825. Q. Yes, because it was used. 9 A. But if it was used, then tell us 10 when it was used. We will pull the tape and if it 11 was there... 12 826. Q. But that is part of the problem, 13 anecdotally. 14 A. Well...but here is...let me...can I 15 ask you a question? 16 827. Q. Sure. 17 A. Or go off the record, if you want. 18 It is possible that you are sitting... 19 828. MR. KEMP: Off the record. 20 21 --- DISCUSSION OFF THE RECORD 22 23 BY MR. KEMP: 24 829. Q. I have made a request for copies of 25 all of the curling broadcasts in 2003 that we were

T. Agostini - 224 1 just referencing. The reason for the inquiry is 2 that it is alleged in the Statement of Claim that 3 the Hockey Night in Canada theme was used in the 4 course of those curling broadcasts, and it was not 5 used in a manner that was promoting the Hockey Night 6 in Canada television broadcast. 7 Aside from anecdotal evidence, which is not 8 going to be addressed on the record, we also have 9 reason to believe that the composition was used in 10 this manner by virtue of reports of SOCAN reflecting 11 a broadcast related to curling broadcasts, 12 specifically, on a variety of dates. 13 And what I would propose to do, at least at 14 this juncture, is to identify those SOCAN records or 15 reports, identify every single day, and there were 16 numerous references to the composition having been 17 used, and asking you specifically for those tapes. 18 MS. SIMON: Once I also have production 19 of those SOCAN reports, because, to the 20 best of my knowledge, they haven't been 21 included in the Affidavit of Documents, 22 thus far, that is fine. Then we can have a 23 discussion, and perhaps we can narrow it 24 down so that we are not sending you over 25 extraneous tapes that have nothing do with

T. Agostini - 225 1 it. U/T 2 830. MR. KEMP: I don't need to be watching 3 endless hours of curling coverage without 4 the composition in them, nor do I 5 particularly want to, but... 6 MS. SIMON: Ditto. 7 831. MR. KEMP: ...that is fair enough. We 8 can do it in that manner. And it might be 9 that the SOCAN statements were not produced 10 because they contain irrelevant information 11 related to other uses of the composition, 12 which is not necessary for CBC to see. 13 If that is the case, what I will do is 14 I will redact the other portions of the 15 SOCAN statements, and provide you with 16 copies of what I am specifically referring 17 to. 18 MS. SIMON: That is fine. Redacted is 19 fine, so long as we can ascertain, from 20 what you have left in there, exactly what 21 it is that your allegation is based on, and 22 so that we can make appropriate inquiries, 23 as far as getting copies of the tapes. 24 25 BY MR. KEMP:

T. Agostini - 226 1 832. Q. Was the composition used in a 2 tribute to Guy Lafleur? 3 A. I...not to my knowledge. We did not 4 do any tribute to Guy Lafleur. 5 833. Q. Would you please produce a copy of 6 the broadcast hours from December 2, 2002 from 7 approximately 7:00 p.m. to 10:00 p.m.? Because that 8 is when it is alleged that the composition was used 9 in a tribute to Guy Lafleur. 10 A. Can I ask a... 11 834. Q. Probably the Hockey Night in Canada 12 broadcast. 13 A. Well, if it was used in Hockey Night 14 in Canada, it is not... 15 835. Q. Not a tribute to Guy Lafleur. 16 A. Well, if it is a Hockey Night in 17 Canada broadcast...if, and I am going to say "if". 18 If there was a tribute done to Guy Lafleur in, and I 19 am saying "if" because I don't remember a tribute to 20 Guy Lafleur, except that if they did something for 21 Guy Lafleur on a Saturday night at the Bell Centre 22 and we were there and the Hockey Night in Canada 23 theme was played, that was fine. 24 But when you say "Guy Lafleur tribute", my 25 understanding is that there was an event that was

T. Agostini - 227 1 produced by an outside company that did something 2 for Guy Lafleur, and that was not something we did. 3 We were not involved in that. 4 836. Q. Was it broadcast on CBC? 5 A. Not to my knowledge, no. I think it 6 was something that was done in Quebec, but I don't 7 know the detail of it. I don't think it was 8 produced by CBC or Radio-Canada. And, as a matter 9 of fact, I think there is documentation in this file 10 that informed John of that. But it is not something 11 that we did. 12 Anything we would do on a Saturday night from 13 the Bell Centre, and if they put Guy Lafleur's 14 jersey up into the rafters, that is perfectly fine. 15 But if they did another tribute, I don't know about 16 that. 17 837. Q. It is our understanding...I am just 18 pulling up a calendar to see the specific day of the 19 week December 2, 2002 was. It is Mr. Ciccone's 20 understanding it was not a Saturday, but that it was 21 broadcast, whatever it was, on SRC. 22 Off the record. 23 24 --- DISCUSSION OFF THE RECORD 25

T. Agostini - 228 1 838. MR. KEMP: Off the record, we have 2 agreed...my client has tracked down the 3 relevant excerpts from a SOCAN statement 4 related to the composition for 2003, which 5 contains some reference to the curling 6 broadcast that had been identified to you 7 more specifically. I am going to provide 8 you with a copy of that. It may or may not 9 be redacted. 10 And you have undertaken, as I 11 understand it, to produce to me copies of 12 the broadcast tapes related to those dates. 13 Fair enough? 14 MS. SIMON: That is the identical 15 undertaking I gave you a few minutes ago, 16 and it is still okay. 17 839. MR. KEMP: Thank you. I don't think I 18 had committed to giving you...or I think I 19 probably did commit to giving you the 20 SOCAN... 21 MS. SIMON: We were on to the SRC 22 broadcast, or alleged broadcast, of 23 December 2, 2002, 7:00 to 10:00 p.m., and 24 we will also provide you with a copy of 25 that. U/T

T. Agostini - 229 1 840. MR. KEMP: Thank you. And December 2, 2 2002 occurred on a Monday. 3 THE DEPONENT: Homage du Guy Lafleur. 4 5 BY MR. KEMP: 6 841. Q. Are you able to assist us, Mr. 7 Agostini? 8 A. Well, I am just reading some 9 information that was sent to John. 10 MS. SIMON: At tab 18. 11 THE DEPONENT: Tab 18 of the binders you 12 provided to us. And I think it just shows 13 that...I think it was produced by a company 14 called...I think it says 30 Video, but in 15 fact, it is probably Cergy Video, 16 and...that there was correspondence to this 17 effect, and I am not sure whether John got 18 satisfaction, in terms of the use of the 19 theme, but it was not something that was 20 produced by CBC. 21 22 BY MR. KEMP: 23 842. Q. Was it broadcast or aired by CBC? 24 A. To the best of my recollection, it 25 was not, absolutely not seen on CBC Television.

T. Agostini - 230 1 Now, Radio-Canada, I can't speak for Radio-Canada. 2 But if it was on Radio-Canada...my understanding is 3 that it is not produced by Radio-Canada. 4 843. MR. KEMP: Counsel, at volume 2, tab 5 E13, there is a five-page e-mail... 6 MS. SIMON: Is that of your Affidavit of 7 Documents, or ours? 8 844. MR. KEMP: No, that is yours. I don't 9 think mine goes that deep. 10 MS. SIMON: I will just ask you to 11 repeat that. Did you say volume 1 or 2? 12 845. MR. KEMP: Volume 2. 13 MS. SIMON: Tab E, and what was the 14 number, 13? 15 846. MR. KEMP: Thirteen. 16 THE DEPONENT: Thirteen, The Circus Is 17 In Town? 18 847. MR. KEMP: I am tracking it down. 19 Please bear with me. Yes, 13. What I have 20 is, the first page is an e-mail from Cindy 21 Roy to Laurie Martin, and then I have page 22 4 and page 5 of...no. My version is 23 different than...let's go off the record. 24 25 --- DISCUSSION OFF THE RECORD

T. Agostini - 231 1 848. MR. KEMP: Off the record, I was just 2 trying to clarify what would appear to be a 3 discrepancy in the productions, and 4 specifically, volume 2 of the productions. 5 My copy is slightly different, somehow. I 6 don't propose to address that in any detail 7 at this juncture. We can work it out 8 later. 9 Why don't we take a short break here? 10 11 --- A BRIEF RECESS 12 13 TONY AGOSTINI, resumed 14 CONTINUED EXAMINATION BY MR. KEMP: 15 849. Q. The Statement of Claim also alleges 16 that the composition was used on a Rick Mercer 17 special, which we believe was broadcast or aired in 18 the second quarter of 2001. May I have a production 19 or a copy of that tape, please? 20 MS. SIMON: Do you know anything about 21 that? 22 THE DEPONENT: No, I don't. 23 MS. SIMON: Is there any way you can be 24 a little bit more specific, or was it 25 just...

T. Agostini - 232 1 BY MR. KEMP: 2 850. Q. I am presuming Rick Mercer does not 3 have broadcasts or specials that often, or at least 4 he didn't in 2001. 5 A. What year did you say, 2001? 6 851. Q. 2001. It is the second quarter, is 7 our information. 8 MS. SIMON: Where was that information 9 from, by the way? Is that a SOCAN letter, 10 as well? 11 852. MR. KEMP: Response to Demand...I have 12 no idea. It is in the Statement of Claim 13 in Response to Demand for Particulars. 14 MS. SIMON: All right. You have our 15 undertaking, in that regard. U/T 16 17 BY MR. KEMP: 18 853. Q. Thank you. I am going to direct 19 your attention back to the agreement, which is 20 located at tab 1 of volume 1, and I believe, when we 21 had left off the other day, we had some discussion 22 with respect to the provisions of section 6 to the 23 agreement. 24 A. Tab 1 of volume 1? 25 854. Q. Yes.

T. Agostini - 233 1 MS. SIMON: Clause 6, did you say? 2 855. MR. KEMP: Yes. I believe we had left 3 off at approximately clause 6, paragraph 6, 4 section 6. 5 MS. SIMON: Is there a question? 6 7 BY MR. KEMP: 8 856. Q. With reference to section 6(c), it 9 is referring to the rights of the licensee during 10 the period of term. And section (c) states: 11 "...The irrevocable limited right, license, 12 privilege and authority to use the 13 composition and the productions, and the 14 right to exhibit the productions by means 15 of television, radio, and all forms of 16 delivery of audio and video signals to 17 residents of Canada are the Canadian 18 Broadcasting Corporation, French 19 equivalent..." 20 Do you see that reference? 21 A. Yes. 22 857. Q. It doesn't say that you had the 23 right to broadcast the composition outside of 24 Canada, in this section, does it? 25 A. Well, we talked about that

T. Agostini - 234 1 yesterday. With the exclusion of the further line 2 which follows it. 3 858. Q. In section 6(d)? 4 A. No, (c): 5 "...Licensee shall have further right to 6 exhibit the productions at Canadian Forces 7 bases outside of Canada, as well as 8 Canadian Embassies and Consulates..." 9 And as well, there is a reference somewhere with 10 regards to the Internet, which, as well, will go 11 outside of Canada. 12 859. Q. Now, it doesn't say, aside from 13 those exceptions, to residents outside of Canada, 14 correct? 15 A. That is correct. 16 860. Q. And notwithstanding that, can you 17 tell me how, for the 1999-2000 season, CBC purported 18 to grant the right to NHL Centre Ice to use the 19 Hockey Night in Canada broadcast with the 20 composition for broadcast outside of Canada? 21 A. I think I have answered that 22 question more than once. 23 861. Q. I don't believe so. 24 A. No. I think we did that yesterday. 25 MS. SIMON: We did spend a goodly amount

T. Agostini - 235 1 of time on it yesterday, but if you would 2 like him to repeat his answers from 3 yesterday, that is fine. 4 5 BY MR. KEMP: 6 862. Q. Why don't I do this. I will reserve 7 my right to ask follow-up questions until I see 8 production of the agreement between CBC and NHL 9 Centre Ice, the first one. And then, I am sure I 10 will have questions arising therefrom. 11 A. I don't mind answering it again. It 12 is just I know I answered it. 13 863. Q. We will wait. 14 MS. SIMON: No. I am not content to 15 proceed on that basis. If there are 16 questions arising out of those contracts, 17 that is fine. But clearly, the witness has 18 given you that answer, and he gave it to 19 you many times yesterday. I mean, I could 20 probably repeat it verbatim almost, at this 21 point. I know he answered it a number of 22 times. 23 24 BY MR. KEMP: 25 864. Q. Very impressive. Have you ever

T. Agostini - 236 1 asked permission of any of the plaintiffs to use the 2 composition to sell merchandise? 3 A. I don't think so. 4 865. Q. Why not? 5 A. Well, I don't know what you mean by 6 "selling merchandise". 7 866. MR. KEMP: In one of the tapes that your 8 client has produced is a videotape that, 9 again, we have converted to DVD, and what I 10 propose to do is play that for you, and 11 then I will have questions arising from it. 12 Counsel, if you have no objection, I 13 would like to move to the other side of the 14 table to watch this at the same time. 15 MS. SIMON: Please, be my guest. 16 17 BY MR. KEMP: 18 867. Q. Thank you. Is that okay with you, 19 Mr. Agostini? 20 A. Yes, on the record, and off the 21 record. 22 MS. SIMON: And I guess, for the 23 purposes of consistency, I will just state 24 ever so briefly the same concerns that I 25 had yesterday about the conversion to DVD.

T. Agostini - 237 1 If anything should arise that...I have 2 noted it that we are not watching the 3 version that I had sent over. 4 868. MR. KEMP: Well, you are watching the 5 version. It is on a different format, 6 though. 7 MS. SIMON: Fair enough, if you want to 8 put it that way. 9 10 --- PLAYING OF DVD 11 12 THE DEPONENT: That was probably part of 13 the Hockey Night in Canada, that part 14 there. Yes. 15 16 BY MR. KEMP: 17 869. Q. It appeared to be the case. I will 18 ask you follow-up questions. 19 A. How did you get it without 20 voice-over? 21 870. Q. Have you had an opportunity to 22 review the DVD? 23 A. Say that again. 24 871. Q. You had an opportunity to review the 25 DVD?

T. Agostini - 238 1 A. I watched the DVD. 2 872. Q. And did you have any issues or 3 concerns that the contents that you just viewed do 4 not represent what was aired or broadcast by CBC in 5 the past? 6 A. No. I am sure that was all on CBC. 7 873. MR. KEMP: And Counsel, I would propose, 8 subject to any qualifiers you may have with 9 respect to establishing the authenticity, 10 that we mark a copy of that DVD, which 11 consists of three promotional items as 12 exhibit number 4. 13 MS. SIMON: That is fine. 14 15 --- EXHIBIT NO. 4 : DVD, with three promotional items 16 17 BY MR. KEMP: 18 874. Q. Now, Mr. Agostini, you had an 19 opportunity to view each of the four promotional 20 items on the DVD? 21 A. I think there were three. 22 875. Q. Three, I am sorry. You have had an 23 opportunity to review them? 24 A. Yes. 25 876. Q. And you acknowledge that the

T. Agostini - 239 1 composition was used in each of the three 2 promotional items? 3 A. Yes. 4 877. Q. Are you able to assist me as to when 5 each of the promotional items was broadcast? 6 A. When? 7 878. Q. Yes. 8 A. Off the top of my head, no. 9 879. Q. Do you have access to that 10 information? 11 A. Yes, but if you could help me with 12 the dates, that would be even better. 13 880. Q. I don't believe I have that 14 information, so... 15 A. I am sure we can find it. 16 881. MR. KEMP: Thank you. Counsel, may I 17 have an undertaking to advise of the dates 18 that each of the three promotions was 19 broadcast? 20 MS. SIMON: You have my undertaking. U/T 21 882. MR. KEMP: And so, to the extent that 22 they were broadcast or aired on numerous 23 occasions, I would like your advice in that 24 regard, as well. 25 MS. SIMON: I will do my best. U/T

T. Agostini - 240 1 BY MR. KEMP: 2 883. Q. Were any of these available on the 3 CBC Internet website, as well as something that was 4 broadcast on television? 5 A. I am not certain of that. 6 884. Q. Are you able to make those 7 investigations or inquiries, as well? 8 A. Yes, we can ask, but I...yes. U/T 9 885. Q. In addition, can you tell me, or you 10 able to assist, as to whether any of these three 11 promotional items were also distributed on another 12 form of media, such as DVD or VHS? 13 A. I am not certain. 14 886. Q. Do you have a way to find that 15 information out? 16 MS. SIMON: We can make that inquiry. 17 That is fine. We will make an inquiry. 18 THE DEPONENT: Yes, because I...okay. I 19 guess, I... 20 MS. SIMON: You have my undertaking. We 21 will make the inquiry to find out if these 22 three promotional items were shown on 23 either a DVD or VHS format. U/T 24 887. MR. KEMP: Well, whether they were 25 converted to that format and distributed.

T. Agostini - 241 1 THE DEPONENT: I would suggest, from 2 memory, that the promotion of the Hockey 3 Night in Canada merchandise may have ended 4 up in a DVD. I don't think the other two 5 items would have ended up in either a DVD 6 or a VHS. But I am going from memory, but 7 I...the notion of the promotion of Hockey 8 Night in Canada merchandise on a...that is 9 possible. 10 888. MR. KEMP: The undertaking, I gather, 11 will clear that up. 12 MS. SIMON: Yes. 13 889. MR. KEMP: To the extent that any of the 14 promotional items were placed on a DVD or 15 some other form of media, and distributed 16 or circulated, I would like to know the 17 number of copies that were distributed or 18 circulated, and to whom they were 19 circulated or distributed. May I have that 20 undertaking? 21 MS. SIMON: I am not quite following. 22 Do you mean if they were for sale? 23 890. MR. KEMP: No. 24 MS. SIMON: Or just given...you are 25 including giving them out for free,

T. Agostini - 242 1 obviously, but how would we know whose 2 hands they ultimately ended up in? 3 891. MR. KEMP: Well, if any of the three 4 promotional items were placed on DVD and 5 distributed, I would like to know to whom 6 were they distributed, to retailers? Were 7 they distributed to members of the public 8 attending a hockey game? I don't know. I 9 want details of that. 10 MS. SIMON: We can make best efforts, 11 but I am not sure that is information we 12 will be able to get for you. U/T 13 THE DEPONENT: Can I ask a question? 14 892. MR. KEMP: Sure. 15 THE DEPONENT: Well, if you have...no, 16 but I will be very clear. If you have an 17 instance where you think that it was, 18 please let us know, because... 19 MS. SIMON: It will help narrow down the 20 search. 21 THE DEPONENT: ...I can tell you, 22 without hesitation, that if it did occur, 23 it did not occur very much. If it did 24 occur...no. I am very serious. 25 MS. SIMON: That is okay. That is not

T. Agostini - 243 1 helpful. We have given the undertaking. 2 We will make best efforts, and let's leave 3 it at that for now. 4 THE DEPONENT: But if you have, let us 5 know. 6 7 BY MR. KEMP: 8 893. Q. Do you have any knowledge or 9 information or belief as to why the merchandise 10 promotional item would have been placed on a DVD? 11 A. My recollection is that we...when we 12 did...there was a... 13 MS. SIMON: Just a minute. He has not 14 even answered that that is the case. He 15 says that he thought it might be the case, 16 and you have our... 17 894. MR. KEMP: That is a belief. 18 MS. SIMON: You have our undertaking to 19 make further inquiries and verify whether 20 that is so. So, I don't really think... 21 895. MR. KEMP: I am entitled to his 22 knowledge, information or belief now, and I 23 have asked, given his belief, that it was 24 placed on a DVD, and he can always correct 25 it if it turns out to be wrong.

T. Agostini - 244 1 I am asking, does he have any 2 knowledge, information or belief as to why 3 the merchandise promotional item would have 4 been placed on a DVD? That is a completely 5 proper question. 6 MS. SIMON: All right. Go ahead. With 7 the caveat that he is not certain, go 8 ahead. 9 896. MR. KEMP: Of course. He is always able 10 to correct something. 11 MS. SIMON: I understand. 12 THE DEPONENT: Well, I think the first 13 thing...sorry, repeat the question, because 14 I am... 15 16 BY MR. KEMP: 17 897. Q. Do you have any knowledge, 18 information or belief as to why the merchandise 19 promotional item would have been placed on a DVD? 20 A. Well, my recollection is that we did 21 a...there was a DVD that we did with the NHL, and 22 that we may have put a merchandise promo on that 23 DVD. But I am not...I do not remember whether the 24 Hockey Night in Canada theme was on it. And our 25 plan would have been not to put it on. I can tell

T. Agostini - 245 1 you that for sure. 2 898. Q. And why was that? 3 A. Because we wouldn't have put a 4 Hockey Night in Canada theme on a DVD if the intent 5 of the DVD was for it to go out for sale. 6 899. Q. Well, I am not talking about... 7 A. No, but you asked me why, and I am 8 telling you... 9 900. Q. Well, my understanding is there was 10 a promotional...it is not for sale. It is promoting 11 another item. 12 A. Correct. And...but to be clear, 13 what you said is correct. There are...you mention 14 the word five times, "promotion", and all the uses 15 that you showed me was promotion of Hockey Night in 16 Canada, and we are entitled to...we have the right 17 to promote Hockey Night in Canada. 18 901. Q. We are going to get into that. 19 A. No, but it is, that it is. 20 902. Q. That is your explanation, and we can 21 get into that in detail. The question I have asked 22 is: Do you have any knowledge, information or 23 belief as to why the promotional merchandise piece 24 that we just viewed would have been placed on DVD? 25 A. To promote the Hockey Night in

T. Agostini - 246 1 Canada merchandise. If this promo was put on a DVD 2 with the Hockey Night in Canada theme...our intent 3 was not to put the Hockey Night in Canada theme, but 4 the reason why this promo for merchandise would be 5 there would be to promote the Hockey Night in Canada 6 merchandise. That is the... 7 903. Q. Who manufactures the merchandise? 8 A. Well, there are a variety of 9 products and a variety of manufacturers. 10 904. Q. And is there a markup on the product 11 from the manufacturers? 12 A. Yes. 13 905. Q. And who profits from the markup? 14 A. There is a...as I told you 15 yesterday, there is a division now, which is called 16 the CBC Merchandise Group, and part of their 17 responsibilities are to identify Hockey Night in 18 Canada merchandise that would be attractive to 19 hockey fans, or Hockey Night in Canada fans. And 20 part of their responsibility is to try to market 21 that. So, in terms of who benefits from that, the 22 proceeds go back to the CBC, or to CBC programming. 23 906. Q. So, the CBC profits from the 24 marketing of Hockey Night in Canada merchandise? 25 A. Well...yes. If we...we hope. We

T. Agostini - 247 1 hope that we do. I can't tell you for a fact that 2 there was a profit on this merchandise because 3 I...it is not part of my responsibilities to run the 4 division that hopefully will sell enough merchandise 5 to make a profit from it. 6 907. Q. When I have answers to the 7 undertakings as to when this promotional piece was 8 produced and when it was used, I would like 9 undertakings to provide me with the gross revenues 10 of Hockey Night in Canada merchandise for the years 11 in question. 12 MS. SIMON: So, 1998... 13 THE DEPONENT: No, I don't think there 14 was any then. 15 908. MR. KEMP: We haven't established when 16 the promotion... 17 MS. SIMON: I am sorry. I thought you 18 meant the years in issue in the litigation. 19 909. MR. KEMP: No. 20 MS. SIMON: So, gross revenues... 21 910. MR. KEMP: For the years that this 22 promotional piece was used. May I have 23 that undertaking? 24 MS. SIMON: I will take it under 25 advisement. U/A

T. Agostini - 248 1 BY MR. KEMP: 2 911. Q. So, the intent of selling Hockey 3 Night in Canada merchandise is to make a buck? 4 A. No. 5 912. Q. No? 6 A. No. 7 913. Q. Then why are you selling at a 8 profit? 9 A. To extend the brand. We would do 10 this to extend... 11 914. Q. Well, if you are looking to extend 12 the brand, why don't you give it out at your cost? 13 A. Well, because there are, you know, 14 there are a number of... 15 915. Q. Is the reach not broader if you give 16 it out at your cost? 17 MS. SIMON: Let him finish his answer. 18 THE DEPONENT: No. The point is that 19 the...we hope that the revenues will be 20 greater than the costs, because if not, we 21 would be silly to do it. But the prime 22 objective is to extend the brand, and the 23 prime reason why we did that Hockey Night 24 in Canada promo was to increase awareness 25 about Hockey Night in Canada merchandise.

T. Agostini - 249 1 It was a...no, no. But I mean, you 2 are asking me. I am answering the 3 question. We...it was an initiative that 4 we started probably in the year 2001 or 5 2002. It was very small. And I think on 6 the first promos we did, we used the Hockey 7 Night in Canada theme, and then we stopped 8 using it. 9 10 BY MR. KEMP: 11 916. Q. Is there more than one promo, aside 12 from the one we have just seen here? 13 A. That is, I believe, the only promo 14 with the Hockey Night in Canada theme on it. 15 917. Q. For merchandise? 16 A. For merchandise, yes. But it is a 17 promo for Hockey Night in Canada merchandise. 18 918. Q. Yes. And if you are looking to 19 extend the brand, why wouldn't you distribute it at 20 your cost, and have a wider circulation, rather than 21 trying to make a profit on it? 22 A. Well, because when you...I mean, we 23 can... 24 MS. SIMON: Maybe the word "profit" is a 25 bit deceiving. I mean, if they made a

T. Agostini - 250 1 cent, they would have made a profit, right? 2 919. MR. KEMP: Yes. 3 MS. SIMON: So, maybe... 4 920. MR. KEMP: Yes, with the benefit of the 5 Hockey Night in Canada theme. 6 THE DEPONENT: And the benefit of the 7 Hockey Night in Canada brand. 8 MS. SIMON: I was a bit lenient, maybe, 9 in allowing him to answer the question 10 about profit, but I don't know if... 11 921. MR. KEMP: Well, no. I am hearing the 12 statement that the objective of the 13 merchandise promotional piece was to extend 14 the brand. But I am not hearing that the 15 brand has been extended by the distribution 16 of merchandise at CBC's cost. But I am 17 hearing that there is a markup involved. 18 So, it, kind of, seems counter-intuitive. 19 MS. SIMON: Well, you haven't asked him 20 what the markup was, so... 21 22 BY MR. KEMP: 23 922. Q. And that is why it is subject to an 24 undertaking, or at least a request for an 25 undertaking. Who was responsible for extending the

T. Agostini - 251 1 brand of the product? Is there somebody who is... 2 A. Well, the people responsible...I 3 would have been one of the persons responsible. And 4 then, depending on who was handling the file, David 5 Hainline, who you mentioned yesterday, would have 6 been responsible because he was heading up the 7 merchandising division. 8 923. Q. Did you ever give instructions that 9 the products or the merchandise should be 10 distributed at CBC's cost? 11 A. That was not my call. 12 924. Q. Whose call was it? 13 A. It was David Hainline's call. 14 925. Q. Did he, to your knowledge, ever give 15 such instructions? 16 A. Instructions...ask your question 17 again. 18 926. Q. To sell the merchandise at your 19 cost? 20 A. You know, I can't answer that 21 question because I did not do the pricing strategy 22 for Hockey Night in Canada merchandising. 23 927. Q. I would like inquiries to be made of 24 Mr. Hainline. 25 MS. SIMON: In what regard?

T. Agostini - 252 1 BY MR. KEMP: 2 928. Q. Well, is he instructing that the 3 merchandise be sold at a profit, or is he 4 instructing that it be sold at his cost, or CBC's 5 cost? 6 A. I think it is important to point out 7 that, when an individual buys a piece of merchandise 8 or extending the brand, they are buying a piece of 9 merchandise that has the Hockey Night in Canada mark 10 on it. 11 929. Q. And it is being sold with the 12 benefit of the composition. 13 A. The product that is being sold is a 14 product that has the Hockey Night in Canada brand on 15 it. 16 930. Q. And it is being advertised with the 17 composition. 18 A. As you said, it was promoted as part 19 of...with the composition, and is a promotion for 20 Hockey Night in Canada. 21 931. Q. The promotional piece that we just 22 looked at, there appeared to be a merchandise store 23 with Hockey Night in Canada merchandise in it. Did 24 I see that correctly? 25 A. You may have. I don't remember

T. Agostini - 253 1 the...I wasn't looking at the store. I was 2 listening to the music. 3 932. Q. Do you know of a store? 4 A. There is a store. 5 933. Q. Where is it? 6 A. It is at CBC. 7 934. Q. Did it ever play the composition? 8 A. Not to my knowledge. 9 935. Q. Who produced each of the three 10 promotional pieces? 11 A. I don't know. 12 936. MR. KEMP: Undertaking to make those 13 inquiries, Counsel? 14 MS. SIMON: That is fine. U/T 15 16 BY MR. KEMP: 17 937. Q. Now, there was also a promotional 18 piece that involved the Bell ExpressVu. Do you 19 remember seeing that? 20 A. Yes. 21 938. Q. And that featured the composition 22 prominently? 23 A. I heard it. 24 939. Q. And can you tell me when that 25 agreement or arrangement or deal was entered into

T. Agostini - 254 1 with Bell ExpressVu? 2 A. My recollection it was about two 3 years ago, two seasons ago. It was either two 4 seasons ago or three seasons ago. 5 940. Q. And has that continued? 6 A. No. 7 941. Q. How long did it run for? 8 A. I think it ran for one season, or 9 part of a season. 10 942. Q. And was that promotion something 11 that was the subject of an agreement between CBC and 12 Bell ExpressVu? 13 A. Yes. 14 943. Q. I would like production of a copy of 15 that agreement. 16 MS. SIMON: Under advisement. U/A 17 944. MR. KEMP: The reason? 18 MS. SIMON: The same as previously 19 discussed. 20 945. MR. KEMP: Why, when the composition of 21 my clients' is being used to promote a Bell 22 ExpressVu product, are you refusing to 23 provide us details or a copy of the 24 agreement? 25 MS. SIMON: We are not refusing. I just

T. Agostini - 255 1 want to think about it. 2 946. MR. KEMP: Well, as you well know, 3 Counsel, an under advisement is a refusal. 4 5 BY MR. KEMP: 6 947. Q. So, I want to know the...well, who 7 was involved in the negotiation of that agreement? 8 A. Bill Atkinson and a number of other 9 folks, including...I was part of it. I think Nancy 10 was part of it, and of course, some folks from Bell. 11 948. Q. Ms. Lee or Ms. Carrell? 12 A. I am trying to remember who legal 13 counsel was on that. I think Nancy Lee was involved 14 in it. But I don't remember who the legal counsel 15 was on it. It may have been Nancy Carrell, but I 16 don't remember that. 17 949. Q. Well, not only do I want the 18 agreement produced, I want copies of all documents 19 of any individual of CBC who was involved in the 20 discussions or negotiations of the agreement, 21 whether it would be correspondence, memos back and 22 forth, personal notes, e-mail communications, or 23 other form of documentation. 24 MS. SIMON: Well, consistent with what 25 we discussed yesterday, I believe most

T. Agostini - 256 1 items that are relevant, or all items, I 2 should say, that are relevant, have been 3 produced, subject to privilege. And 4 otherwise... 5 950. MR. KEMP: Counsel, please, don't make 6 such a statement to me. Is there a single 7 document which refers, in your materials, 8 to the agreement between Bell ExpressVu and 9 CBC, given that the product, specifically 10 Bell ExpressVu, is advertising services 11 with the benefit of the composition? Is 12 there a single thing in here? And if not, 13 I haven't got the relevant documents. 14 MS. SIMON: Well, that is my position. 15 951. MR. KEMP: So, are you refusing to give 16 me the files of all of the individuals who 17 are involved in this arrangement, or this 18 deal, or this contract. 19 MS. SIMON: I said I will have to think 20 about it. U/A 21 22 BY MR. KEMP: 23 952. Q. Where was or how was this 24 promotional item used? 25 A. It was on Hockey Night in Canada.

T. Agostini - 257 1 953. Q. Are you saying that that justifies 2 the sale of services of Bell ExpressVu? 3 A. No. I am saying that the product 4 that we...I am saying that the product that we 5 advertised was Hockey Night in Canada. 6 954. Q. When or where was it aired? Was it 7 consistently... 8 A. Hockey Night in Canada. 9 955. Q. When? 10 A. During Hockey Night in Canada. 11 956. Q. How often? 12 A. I would have to look at the notes. 13 957. MR. KEMP: I would like that 14 undertaking. I would like to know every 15 single broadcast of Hockey Night in Canada 16 where this promotional item was used. 17 Counsel, I do have some concern or 18 objection to your whispering with your 19 client after a question like that. 20 MS. SIMON: I just want to ascertain 21 whether it is something we can even do, or 22 the order of magnitude of what it is that 23 you are asking for. 24 958. MR. KEMP: It doesn't really matter what 25 the order of magnitude is. We say it is...

T. Agostini - 258 1 MS. SIMON: Sure it does, because if we 2 can... 3 959. MR. KEMP: No, no. 4 MS. SIMON: ...boil it down, I would 5 rather do that. 6 960. MR. KEMP: We say it is a breach of 7 copyright. It is selling Bell ExpressVu's 8 services, and we are entitled to know the 9 frequency with which that promotional item 10 aired. And I am going to be asking you for 11 ratings of every single game when it aired. 12 THE DEPONENT: Well, listen, we would... 13 if we...we would love to share that with 14 you because it was an experiment that was, 15 again, promoting Hockey Night in Canada for 16 the viewer in a different way. 17 18 BY MR. KEMP: 19 961. Q. And it happened to also be 20 benefitting Bell ExpressVu, didn't it? 21 A. Well, as I said before, it was an 22 experiment. 23 962. Q. Did you understand it to be part of 24 a promotion that would be designed to sell services 25 of Bell ExpressVu?

T. Agostini - 259 1 A. Really, no. 2 963. Q. No? 3 A. No. It was... 4 964. Q. Then why did you need Bell 5 ExpressVu? 6 A. Because it was distributing the 7 program in a different way, and what we were trying 8 to do is to experiment with providing Hockey Night 9 in Canada to the hockey fan in a different way. 10 965. Q. I would like details of every single 11 broadcast that this promotional item aired. 12 MS. SIMON: What are you thinking of? 13 966. MR. KEMP: I want to know when it aired, 14 every time. And if it involves somebody 15 from CBC having to review every broadcast, 16 so be it. 17 MS. SIMON: I am sure you would love 18 that, but if anything... 19 967. MR. KEMP: I don't really care about any 20 protestations of it being such an onerous 21 task. They should have thought about that 22 before they aired it in promoting Bell 23 ExpressVu. 24 MS. SIMON: Nobody has made 25 protestations, except you.

T. Agostini - 260 1 968. MR. KEMP: No, no. You were saying it 2 was so... 3 MS. SIMON: I am just trying to 4 ascertain it is something we have, and... 5 969. MR. KEMP: Well, you have the Hockey 6 Night in... 7 MS. SIMON: ...the degree to which it is 8 producible, that is all. 9 970. MR. KEMP: Every hour of broadcasting 10 aired on CBC, as I understand it, would be 11 in some archive, so you have it. I want to 12 know when it was aired. I want to know 13 exactly the number of times. I want to 14 know when, and I want to know the markets. 15 And I may have further questions arising, 16 as a result. 17 MS. SIMON: All right. I am going to 18 take that under advisement until I have 19 satisfied myself of certain items, and I 20 will have to get back to you. 21 971. MR. KEMP: What is it that you need to 22 satisfy yourself of, the use of the 23 composition that is in conjunction with 24 Bell ExpressVu? 25 MS. SIMON: Well, I just want to make

T. Agostini - 261 1 sure that it is relevant, and in fact, that 2 it took place, and so forth. And then... 3 972. MR. KEMP: We just heard the evidence. 4 MS. SIMON: ...once I satisfy myself, we 5 will make sure to get you any relevant 6 information. 7 973. MR. KEMP: And will you agree to provide 8 me with an undertaking to advise of every 9 single date that this promotional item 10 aired? 11 MS. SIMON: As I said, I will take that 12 under advisement. 13 14 BY MR. KEMP: 15 974. Q. I gather, Mr. Agostini, nobody from 16 CBC ever bothered to say to Mr. Ciccone or any of 17 the plaintiffs, "Oh, we are going to air the 18 composition with this Bell ExpressVu promotional 19 item"? 20 A. It is Hockey Night in Canada. We 21 are promoting Hockey Night in Canada. 22 975. Q. That wasn't my question, Mr. 23 Agostini. The question was: Did anybody ever ask 24 Mr. Ciccone, "Hey, can we air this in a Bell 25 ExpressVu promotion"?

T. Agostini - 262 1 A. It was Hockey Night in Canada. 2 976. Q. Are you suggesting to me that if you 3 had...no, let me finish. Are you suggesting to me 4 that if you decide to broadcast a commercial for HP 5 computers on Hockey Night in Canada and use the 6 theme, that is allowed? Is that what you are 7 suggesting? 8 A. No. What I am suggesting is that we 9 are promoting Hockey Night in Canada. 10 977. Q. You are also promoting Bell 11 ExpressVu, correct? 12 A. Bell ExpressVu is a distribution... 13 all that is is a distribution of Hockey Night in 14 Canada. 15 978. Q. You are helping Bell ExpressVu sell 16 their services, are you not? 17 A. No. What we are doing is we are 18 promoting a product called Hockey Night in Canada 19 Plus, which is Hockey Night in Canada. 20 979. Q. You are assisting Bell ExpressVu to 21 sell services, no? Is that not the case? 22 A. Well, part of the service is 23 delivered through Bell ExpressVu. They are... 24 980. Q. And Bell ExpressVu potentially 25 enjoys a profit as a result of any such promotions.

T. Agostini - 263 1 A. Well, potentially enjoys a profit. 2 981. Q. And you knew that. 3 A. Your words are "potentially enjoys a 4 profit". 5 982. Q. And you agreed with that? 6 A. Well, what we agreed with was to try 7 this new system, because we thought it might be 8 interesting for the hockey fan. 9 983. Q. What was CBC's cut on that deal? 10 A. Off the top of my head, I can tell 11 you it was not much at all. 12 984. Q. Was it dependent on the number of 13 additional subscriptions that Bell ExpressVu sold? 14 A. It was dependent on our hope that 15 people would like this new way of looking at Hockey 16 Night in Canada. 17 985. Q. Was it dependent upon the number of 18 additional subscriptions that Bell ExpressVu sold? 19 A. Had it been...had this new way of 20 looking at Hockey Night in Canada been successful, 21 potentially it would have been based on people 22 wanting the service. 23 986. Q. So, it was tied to subscriptions? 24 A. It was tied to people wanting the 25 service. They had to...to get the service, you had

T. Agostini - 264 1 to be able to have access to these additional 2 channels where you could see different angles of 3 camera. 4 987. Q. Which means you had to subscribe to 5 Bell ExpressVu. 6 A. Yes. You had to subscribe to the 7 service. 8 988. Q. And do I gather, then, that CBC's 9 compensation or remuneration, pursuant to this deal, 10 was tied to the number of subscriptions that Bell 11 ExpressVu sold? 12 A. I mean, I don't recall the contract 13 in detail, but that would make sense. 14 989. Q. And if that was not the case, you 15 will let me know? 16 MS. SIMON: If it was not the case that 17 remuneration was tied to subscriptions, we 18 will advise the... 19 990. MR. KEMP: Well, Mr. Agostini... 20 MS. SIMON: ...you don't need to repeat 21 it, just yes or no. Is that the 22 undertaking you are seeking? 23 991. MR. KEMP: No. I am talking clarity. 24 Mr. Agostini confirmed for me that, yes, it 25 would make sense that CBC's compensation

T. Agostini - 265 1 would be tied to the number of 2 subscriptions that Bell ExpressVu sold. 3 And I told him if that was not the case, he 4 would let me know. 5 THE DEPONENT: Well, let me clarify that 6 my recollection is that the contributions 7 of both parties would become financially 8 rewarding, once both parties met their cost 9 obligations. And my recollection that, as 10 part of this Hockey Night in Canada issue, 11 neither one of the parties met their cost 12 obligations. 13 14 BY MR. KEMP: 15 992. Q. Well, whether anybody made a big 16 buck isn't really of particular concern to my 17 client. The potential is there. 18 A. Well, I can tell you, no one really 19 had a sense of the potential of it, because it was 20 so new, and that this Hockey Night in Canada 21 initiative was something that we were interested in, 22 more because it could do something potentially 23 different for the fan, at some point in time. 24 993. Q. You will agree with me, the more 25 subscriptions Bell ExpressVu sold, the more money or

T. Agostini - 266 1 potential money CBC would make? 2 A. Would have made. 3 994. Q. That was the plan. 4 A. If we would have been successful... 5 we hoped that, you know, there would have been some, 6 you know, incremental revenues to us. 7 995. Q. And as part of that contractual 8 arrangement with Bell ExpressVu, did you receive 9 reports from Bell ExpressVu as to the number of 10 additional subscriptions, or subscriptions for this 11 service that were sold across the country? 12 A. No, I did not. 13 996. Q. Did somebody at CBC receive that 14 information? 15 A. Yes. 16 997. Q. Who? 17 A. I suspect it would have been Bill 18 Atkinson. 19 998. Q. I would like production of that 20 information. 21 MS. SIMON: I am sorry, did you specify 22 what types of reports? I didn't really... 23 999. MR. KEMP: Reports, because CBC's 24 compensation is tied to the number of 25 subscriptions of this service that are

T. Agostini - 267 1 purchased, I asked, did CBC receive 2 reports, or some form of documentation from 3 Bell ExpressVu as to the number of times 4 the service was purchased. And I asking 5 for those details. 6 MS. SIMON: I will give you that 7 undertaking, but we will redact portions 8 that are confidential. 9 1000. MR. KEMP: And you will let me know what 10 you have redacted? 11 MS. SIMON: Sure, the nature of it, yes. U/T 12 13 BY MR. KEMP: 14 1001. Q. Thank you. Who, at Bell ExpressVu, 15 was involved in this promotion? 16 A. I can't tell you. I don't know. I 17 remember meeting them, but I wasn't their initial... 18 I wasn't the main component in discussions with 19 them, so I don't...I can't give you any names. I 20 don't have any. 21 1002. Q. When did you meet with them? 22 A. I was at a couple of meetings when 23 we were talking about the...how we...how this system 24 would work, and what we would need to do to provide 25 the feeds and the cameras, and so I was involved in

T. Agostini - 268 1 some of the mechanics of that. And I think that 2 would have been on...this is actually fairly late... 3 it was...actually, the discussions happened before 4 actually the Hockey Night in Canada Plus actually 5 went to air. 6 So, I think the discussions I was involved with 7 was the season previous to the Hockey Night in 8 Canada Plus actually taking off. It would have 9 been...I remember being at a meeting in November of 10 a particular season, but I don't remember which 11 season that was. But Hockey Night in Canada Plus, 12 we would have tried it, for a few times, the season 13 after. We just couldn't get it done for that 14 particular season. 15 1003. Q. I don't follow you. You would have 16 tried what for the season after? 17 A. What I am saying is that there were 18 initial discussions with Bell ExpressVu in November 19 or December of the season previous it beginning. 20 That is what I am saying. 21 1004. Q. I see. 22 A. But in terms of who those folks 23 were, I don't recall. But I think Bill was there. 24 He would recall, because Bill did the business deal 25 on it.

T. Agostini - 269 1 1005. Q. Did you make notes of those 2 meetings? 3 A. I don't recall making notes, and if 4 I had made notes, the notes would be more with the 5 mechanics of doing Hockey Night in Canada Plus than 6 anything else. But I don't recall making notes, but 7 it is possible. I would have to look at my files. 8 1006. Q. If you could look at your files and 9 produce copies of anything? 10 A. This was not mentioned in any of 11 the...in your...this issue of Hockey Night in Canada 12 Plus wasn't mentioned anywhere in your concerns. 13 1007. Q. Well, I think what we have alleged 14 is that there were unauthorized uses of the 15 composition, and we are just learning this as a 16 result of documentation that the defendant has 17 produced, so... 18 MS. SIMON: That is fine. We will check 19 and we will see if there are any 20 handwritten notes that the witness has 21 made, and if so, we will produce copies. 22 1008. MR. KEMP: I am asking for more than 23 that. I am asking for any form of 24 documentation in Mr. Agostini's file 25 related to the deal with Bell ExpressVu.

T. Agostini - 270 1 MS. SIMON: That is fine. So long as it 2 is relevant and not privileged, of course 3 we will... 4 1009. MR. KEMP: Apparently we have 5 fundamentally different views as to what is 6 and is not relevant, so you will let me 7 know if you are withholding documents based 8 on privilege or irrelevance, right? 9 MS. SIMON: So, we will have a look for 10 any documents or so forth that are related 11 to the goings on around this issue. U/T 12 1010. MR. KEMP: I would also like for 13 inquiries to be made to identify the 14 individuals of Bell ExpressVu who were 15 involved in the deal. 16 MS. SIMON: That is fine. U/T 17 1011. MR. KEMP: I would also ask for an 18 undertaking that Mr. Atkinson be asked to 19 review all of his files and produce copies 20 of everything that he has in that regard. 21 MS. SIMON: That is fine. U/T 22 1012. MR. KEMP: I would also ask for an 23 undertaking that Ms. Lee review her files 24 and produce copies of all documents that 25 she has in relation to this deal.

T. Agostini - 271 1 MS. SIMON: That is fine. U/T 2 1013. MR. KEMP: You are going to give me 3 that? 4 MS. SIMON: Yes. 5 1014. MR. KEMP: Thank you. And any other 6 individual at CBC who was involved in the 7 transactional deal, as well. 8 MS. SIMON: That is fine. U/T 9 10 BY MR. KEMP: 11 1015. Q. Was it Mr. Atkinson who would 12 receive the reports as to how many subscriptions 13 were sold for the service by Bell ExpressVu? 14 A. I think so. 15 1016. Q. Is there anybody else, to your 16 knowledge, who would receive that information? 17 A. I do not think so. 18 1017. Q. Was the promotion available on the 19 CBC website, as well? 20 A. I don't think so. 21 1018. Q. Are there ways to find that out? 22 A. Probably. We would have to ask the 23 folks at CBC.ca. 24 1019. Q. I would like for those inquiries to 25 be made.

T. Agostini - 272 1 MS. SIMON: That is fine. U/T 2 1020. MR. KEMP: Just so we are clear, when 3 you say, "That is fine", you are agreeing 4 to give me that? 5 MS. SIMON: Exactly. 6 7 BY MR. KEMP: 8 1021. Q. Thank you. And to the extent that 9 the promotional item with Bell ExpressVu was 10 accessible on the website, I would ask for details 11 as to when it was accessible, during what period of 12 time. May I have that undertaking? 13 MS. SIMON: Best efforts. Yes. U/T 14 1022. MR. KEMP: And to the extent the 15 information is available, I would like the 16 number of hits any such link received, 17 meaning Internet or page views. 18 MS. SIMON: I am following your 19 question. The only reason I have a look of 20 query on my face is because, depending on 21 how the website was set up, I am not sure 22 whether that would be available. 23 I mean, just because somebody went to 24 the website, it doesn't mean they 25 necessarily touched on this particular

T. Agostini - 273 1 aspect. I just don't know how the web 2 master has it set up. 3 1023. MR. KEMP: And you can advise me of 4 that. I am assuming that there would be a 5 special link for this particular 6 promotional item. If that is not the case, 7 let me know. If my assumption is correct, 8 I would like to know the number of hits 9 that any such page received during the 10 period of time that it was available on the 11 website. 12 MS. SIMON: If it was. 13 1024. MR. KEMP: If it was. May I have that 14 undertaking? 15 MS. SIMON: Yes. Well, with the proviso 16 that...I mean, we will just have to ask how 17 the website is set up, and whether it 18 indeed did have its own separate open up or 19 link or whatever, such that that is 20 ascertainable. If it is, sure... 21 1025. MR. KEMP: Fair enough. Yes. 22 MS. SIMON: ...and if that information 23 is kept, perhaps more importantly. U/T 24 1026. MR. KEMP: And to the extent the 25 information is available, I would like to

T. Agostini - 274 1 know the number of unique visitors, as I 2 believe the terminology goes. 3 MS. SIMON: To the promotional item? 4 1027. MR. KEMP: For that page, yes. May I 5 have that undertaking? 6 MS. SIMON: Yes. U/T 7 8 BY MR. KEMP: 9 1028. Q. Now, as I understand it, you don't 10 remember the term or duration of this agreement? 11 A. I think it was just one year. 12 1029. Q. Were there any discussions about 13 extending it at all? 14 A. My recollection is there may have 15 been discussions, but the discussions were not 16 fruitful. 17 1030. Q. Do you have any knowledge, 18 information or belief as to why they were not 19 fruitful? 20 A. Because there were no subscribers. 21 1031. Q. As part of this promotion, did CBC 22 require that Bell ExpressVu purchase advertising? 23 A. No, to the best of my knowledge. 24 But the answer to that is, no. 25 1032. Q. Can you make the appropriate

T. Agostini - 275 1 inquiries and advise whether, as part of this 2 transaction, Bell ExpressVu purchased advertising on 3 CBC? 4 MS. SIMON: Yes, we will make that 5 undertaking. U/T 6 THE DEPONENT: As I was going to say, my 7 recollection is no because, as I said 8 earlier, both parties wanted to try this 9 and see how it worked, and both parties 10 brought contributions to the table to try 11 to experiment this. And it was not a 12 successful experiment, not because it 13 wasn't good, just because nobody bought it. 14 And we didn't continue with it. 15 16 BY MR. KEMP: 17 1033. Q. Did CBC receive any payment as part 18 of this transaction, or was it completely dependent 19 upon number of subscribers? 20 A. It was... 21 MS. SIMON: If you know. 22 THE DEPONENT: I am going to defer that 23 Bill Atkinson. 24 1034. MR. KEMP: Well, in that case, I want an 25 undertaking to answer that question.

T. Agostini - 276 1 MS. SIMON: So, you want to know if any 2 monetary payment was contemplated... 3 1035. MR. KEMP: Yes. I am wanting to know 4 what CBC's compensation was. Was it 5 payment of money plus payment depending on 6 number of subscriptions to the service, or 7 was it exclusively...and this will all be 8 answered when the agreement is produced. 9 But to the extent that you are not 10 giving it to me at this stage, I am asking 11 for an undertaking for that information. 12 MS. SIMON: That is fine. Again, 13 subject to any redactions if there is 14 confidential information contained or 15 contemplated by the agreement. I don't 16 know what the agreement says with respect 17 to confidentiality, but I will certainly 18 try to make it as transparent as possible 19 so that you get the information you are 20 looking for. U/T 21 1036. MR. KEMP: Transparency is excellent. 22 Off the record. Why don't we take a quick 23 break? 24 25 --- A BRIEF RECESS

T. Agostini - 277 1 TONY AGOSTINI, resumed 2 CONTINUED EXAMINATION BY MR. KEMP: 3 1037. Q. The promotional item that we had 4 taken a look at on Exhibit 4, as I understand it, 5 there was no voice-over for it. It was just the 6 theme, correct? 7 A. Yes, that is right. 8 1038. Q. And was this promotional item that 9 was broadcast on television, or was this limited to 10 the Internet website of CBC? 11 A. Well, I...it is hard to answer that 12 without having the audio of it. But I think that 13 was promotion of Hockey Day in Canada items that we 14 were auctioning off in support of a Hockey Day in 15 Canada activity as part of Hockey Night in Canada. 16 1039. Q. Now, when you say it is hard for you 17 to say without audio, was there voice-over that we 18 are missing? 19 A. Yes. Well, there is no voice-over 20 on that. I mean, we wouldn't air it just like that. 21 1040. MR. KEMP: Okay. Counsel, can I have an 22 undertaking to produce a copy of the 23 promotion with whatever voice-over there 24 was? 25 MS. SIMON: Sure. That is the form in

T. Agostini - 278 1 which it was produced to me. I didn't 2 realize that there was something more to be 3 on it. U/T 4 THE DEPONENT: Well, the voice-over may 5 have been live. I mean, there may have 6 been a voice-over that was live. 7 1041. MR. KEMP: Okay. Well, I would also 8 like details of whenever it aired, if it 9 aired, or was broadcast on CBC. 10 MS. SIMON: Do you have any knowledge 11 about what it is related to? 12 THE DEPONENT: It is Hockey...that is 13 Hockey Day in Canada. It would have 14 been... 15 MS. SIMON: Do you know what year? 16 THE DEPONENT: Am I on the record? Does 17 it matter? 18 1042. MR. KEMP: Yes. 19 MS. SIMON: You are on the record. 20 THE DEPONENT: Okay. I am on the record 21 to say that it would have been part of 22 Hockey Day in Canada. It probably were 23 pieces that we received in support of an 24 auction for amateur hockey somewhere in 25 this country, as we went towards a Hockey

T. Agostini - 279 1 Day in Canada. So, which one that was, I 2 don't know. We would have to look at the 3 tape to determine what it was. 4 5 BY MR. KEMP: 6 1043. Q. Was there more than one promotion 7 that used the composition in promotion of Hockey Day 8 in Canada? 9 A. Yes. 10 1044. Q. Okay. I would like copies of all of 11 them. 12 A. Promotion of Hockey Day in Canada is 13 part of promoting Hockey Night in Canada. 14 1045. Q. Well, with respect, that is your 15 evidence. It is not something that the plaintiffs 16 necessarily agree with. 17 A. Well, let's not get ridiculous. 18 Hockey Day in Canada is part of Hockey Night in 19 Canada. Let's not get ridiculous. 20 1046. Q. Where does it say in the agreement 21 that Hockey Day in Canada is the same as Hockey 22 Night in Canada? 23 A. Where does it say in the 24 agreement...Hockey Night in Canada produces Hockey 25 Day in Canada. Hockey Day in Canada is three hockey

T. Agostini - 280 1 games in a row, which are all Hockey Night in Canada 2 hockey games. It is a day of Hockey Day...it is a 3 day of hockey called Hockey Day in Canada. 4 1047. Q. There is also more to Hockey Day in 5 Canada than just broadcast of the television NHL 6 games, is there not? 7 A. So, what do you have in mind? 8 1048. Q. Well, if there are events in Red 9 Deer and Toronto, and that kind of thing... 10 A. Yes. 11 1049. Q. ...so Hockey Day in Canada is 12 something distinct from Hockey Night in Canada. 13 A. No. Hockey Day in Canada is a 14 compilation of Hockey Night in Canada, except there 15 is a game in the afternoon, early afternoon, later 16 evening, and late at night. And the whole Hockey 17 Day in Canada umbrella includes a number of hockey 18 features about hockey. 19 1050. Q. But does it relate to...I will 20 approach it in a different way. When was Hockey Day 21 in Canada started? 22 A. That is...we have that in our 23 numbers. 24 MS. SIMON: Well, what is the first tape 25 that I gave you?

T. Agostini - 281 1 THE DEPONENT: We just did the sixth 2 one. 3 MS. SIMON: I think it is 1999. 4 THE DEPONENT: We just did the sixth 5 one, so do the math, get rid of the strike, 6 and it is either 2000 or 2001. 7 8 BY MR. KEMP: 9 1051. Q. Okay. So, at the time that the 10 original agreement with the plaintiffs was entered 11 into, the creature known as Hockey Day in Canada did 12 not exist? 13 A. No, because we signed an agreement 14 in January of 2003. 15 1052. Q. I am talking about 1998, the first 16 agreement with the plaintiffs. 17 A. Yes, but in terms of Hockey Day in 18 Canada, there is no doubt in our minds what Hockey 19 Day in Canada is. And if there is one in yours, I 20 would like you to tell me because I don't know what 21 it is. 22 1053. Q. Well, in 1998, when CBC entered into 23 the first license agreement with the plaintiffs, the 24 creature known as Hockey Day in Canada did not 25 exist, correct? There was no such thing.

T. Agostini - 282 1 A. There was no such thing. Yes. 2 1054. Q. And so, clearly, in 1998, the notion 3 of something called Hockey Day in Canada did not 4 exist? It was not known to parties. 5 A. In 1998, no, it wasn't. We hadn't 6 done a Hockey Day in Canada which was a compilation 7 of three Hockey Night in Canadas. 8 1055. Q. The notion of a Hockey Day in Canada 9 wasn't something that any of the parties had ever 10 heard of in 1998. It wasn't something that they 11 knew about, as far as you knew? 12 MS. SIMON: Some what? If he is saying 13 it is contemplated as part of Hockey Night 14 in Canada, I am not... 15 1056. MR. KEMP: That is part of the 16 glib...that is fine. If you want a glib 17 defiance like that. 18 MS. SIMON: I think that the 19 witness...no. You don't need to accuse 20 anybody of being glib. I am not being 21 glib. I think the witness just really 22 generally does not understand your line of 23 questioning. So, perhaps if there is a way 24 that you can make it more clear to him, he 25 will attempt to give you his best answers.

T. Agostini - 283 1 BY MR. KEMP: 2 1057. Q. In 1998, Hockey Day in Canada did 3 not exist. 4 A. You are correct. 5 1058. Q. It was not something that was 6 contemplated or negotiated by the parties. 7 A. Did Hockey Night in Canada exist in 8 1998? 9 1059. Q. The question was: In 1998, the 10 notion of a broadcast called Hockey Day in Canada 11 did not exist, nor was it in contemplation of the 12 parties? 13 A. We have an agreement for Hockey 14 Night in Canada. 15 1060. Q. It did not exist, did it, Mr. 16 Agostini? 17 A. We... 18 MS. SIMON: Let the witness give his 19 evidence. 20 1061. MR. KEMP: Well, he hasn't answered the 21 question. I am not interested in his 22 argumentive response. I am just interested 23 in saying that it wasn't something that was 24 contemplated as existing, or it wasn't in 25 the contemplation of the parties.

T. Agostini - 284 1 MS. SIMON: He is not being 2 argumentative at all. He is attempting to 3 answer your question, but on a number of 4 occasions now, you have cut him off. So, 5 why don't we hear what he has to say? 6 7 BY MR. KEMP: 8 1062. Q. Did the notion of something called 9 Hockey Day in Canada exist in 1998? 10 A. No. 11 1063. Q. Now... 12 A. Did Hockey Night in Canada exist in 13 1998? 14 1064. Q. ...has CBC taken steps to register a 15 trademark of the words, "Hockey Day in Canada"? 16 A. Yes. 17 1065. Q. When did it do that? 18 A. I don't remember. 19 1066. Q. And CBC has determined that that is 20 something that should be identified as separate and 21 distinct from the trademark "Hockey Night in 22 Canada"? 23 A. No, in addition to Hockey Night in 24 Canada. 25 1067. Q. Does it say that on the trademark

T. Agostini - 285 1 registration? 2 A. I don't remember. 3 1068. Q. Given that evidence, I would like 4 production of the trademark registration 5 documentation. 6 MS. SIMON: For Hockey Day in Canada? 7 1069. MR. KEMP: Yes. 8 MS. SIMON: That is fine. U/T 9 10 BY MR. KEMP: 11 1070. Q. So, CBC certainly, in terms of its 12 practice in relation to intellectual property, has 13 deemed fit to identify a unique trademark for Hockey 14 Day in Canada? 15 A. You are asking me the question, or 16 are you making a statement? 17 1071. Q. Yes. They register a unique 18 trademark. 19 A. Well, we just... 20 MS. SIMON: He has already just said 21 that they have. 22 1072. MR. KEMP: Yes, something quite separate 23 and distinct. 24 MS. SIMON: He has already answered 25 that...

T. Agostini - 286 1 THE DEPONENT: It is an addition to 2 Hockey Night in Canada. 3 MS. SIMON: ...it is an addition to... 4 5 BY MR. KEMP: 6 1073. Q. How does a trademark have something 7 in addition to it? Can you explain that to me? 8 A. Well, we have...I mean, I guess 9 because there are folks like you who want to ask 10 questions like that. There is Hockey Night in 11 Canada... 12 1074. Q. Excuse my ignorance. 13 A. No. But there is Hockey Night in 14 Canada. We have a day where we celebrate all the 15 six teams playing each other, and we do stories 16 about hockey. And we simply determined that it 17 would be a nice touch to call it Hockey Day in 18 Canada. 19 1075. Q. And that... 20 A. And that Hockey Day in Canada is 21 made up of three Hockey Night in Canada telecasts. 22 And every time we promote, whether it be Hockey Day 23 in Canada, we make reference to Hockey Night in 24 Canada, because that is what we are producing. 25 So, you know...because you know what, because

T. Agostini - 287 1 it would be a bit silly if we started a program at 2 noon and called it Hockey Night in Canada. We are 3 celebrating in a different way. 4 1076. Q. A Hockey Day in Canada consists of 5 three broadcasts of NHL games, is that correct? 6 A. Hockey Day in Canada consists of 7 Hockey Night in Canada, three games that we do of 8 Hockey Night in Canada, plus some stories about 9 hockey. 10 1077. Q. Stories about hockey. 11 A. Right. Which are all done under the 12 umbrella of Hockey Night in Canada... 13 1078. Q. No. It is called Hockey Day in 14 Canada. 15 A. They are done all under the umbrella 16 of Hockey Night in Canada. The day is called Hockey 17 Day in Canada because it is a full day of 18 programming. 19 1079. Q. So, what we have for Hockey Day in 20 Canada, then, as I understand it, is three 21 broadcasts of Hockey Night in Canada... 22 A. Yes. 23 1080. Q. ...and some additional programming 24 that never previously existed for Hockey Night in 25 Canada?

T. Agostini - 288 1 A. Well, that is not true. 2 1081. Q. No? 3 A. Well, we have done...our agreement 4 calls for our ability to do other programs around 5 hockey, additional programming, or Hockey Night in 6 Canada classics. And on this particular day, we 7 choose to do additional stories about hockey. And 8 at the same time as we are promoting...we are 9 showing these additional stories about hockey, we 10 are showing...we are doing Hockey Night in Canada. 11 1082. Q. And that is what makes Hockey Day in 12 Canada unique from Hockey Night in Canada. 13 A. No. 14 1083. Q. No? It is the same thing? 15 A. Well, because if you look on a 16 typical Saturday night, there will be stories about 17 hockey. 18 MS. SIMON: Counsel, I don't need you 19 nodding while he is giving his evidence. 20 THE DEPONENT: No, no. I mean, I know 21 Hockey Night in Canada better than counsel, 22 although I know she is a fan. But the 23 point is that you look at any Saturday 24 night at 6:30, and you look at any Saturday 25 night where we are doing features, there

T. Agostini - 289 1 will be features about hockey. And it just 2 doesn't only happen on Hockey Day in 3 Canada. 4 5 BY MR. KEMP: 6 1084. Q. Is there some kind of registration 7 process for a television broadcast that has to be 8 done with CRTC, or any other entity? 9 A. I don't understand the question. 10 1085. Q. Is Hockey Day in Canada, to your 11 knowledge, information and belief, treated or 12 regarded as the same with CRTC as Hockey Night in 13 Canada? 14 A. I think so. I mean, I think it 15 is...from our perspective, and I am...we need some 16 experts from our...the folks that do the, you know, 17 who send information to the CRTC. From our 18 perspective, it is Hockey Night in Canada 19 programming under a promotional umbrella called 20 Hockey Day in Canada. 21 Now, in terms of what it goes to on the CRTC, I 22 actually don't know what it goes to there at the 23 CRTC. But from our perspective, it is all Hockey 24 Night in Canada, except what we have done is we have 25 created a promotional envelope that is called Hockey

T. Agostini - 290 1 Day in Canada. 2 1086. Q. So, I believe, before we got 3 sidetracked, I had asked for copies of all of the 4 different promotions of Hockey Day in Canada that 5 use the composition. 6 MS. SIMON: Well, I had in my notes that 7 you had sought a copy of the promotion with 8 the voice-over, if available. 9 1087. MR. KEMP: Well, I understood Mr. 10 Agostini to say there was more than one 11 promotion in all likelihood. And I have 12 received one promotion with no voice-over. 13 Basically, I want every promotion that was 14 ever made for Hockey Day in Canada which 15 used the composition. 16 MS. SIMON: That is fine. U/T 17 1088. MR. KEMP: And I would like to know 18 details of broadcasts for each and every 19 one of those individual promotions. 20 MS. SIMON: You have my undertaking. 21 22 BY MR. KEMP: 23 1089. Q. Thank you. Now, were these 24 promotions also something that could be found on the 25 CBC website?

T. Agostini - 291 1 A. I don't think so. 2 1090. Q. Was there merchandise for sale on 3 the Hockey Day in Canada website? 4 A. I think we tried...yes. From 5 memory, there would have been some merchandise for 6 sale. 7 1091. Q. Each year with a different 8 promotion? 9 A. No, not every year. 10 1092. MR. KEMP: Counsel, I will have 11 follow-up questions, of course, when I get 12 the actual videotapes of the different 13 promotions for Hockey Day in Canada. 14 However, for each year that a promotion ran 15 for Hockey Day in Canada that specifically 16 referred to the website for Hockey Day in 17 Canada, I would like particulars of the 18 number of hits, and figures related to the 19 merchandise sales of Hockey Day in Canada 20 merchandise. 21 MS. SIMON: I will give you all of these 22 items if we have them. I mean, we will 23 make best efforts, but with the 24 understanding of what the witness has 25 already given evidence to the fact that...

T. Agostini - 292 1 1093. MR. KEMP: The witness can give his 2 evidence. It doesn't mean that the 3 plaintiffs accept the evidence, or that the 4 Court or jury is going to accept the 5 evidence. 6 MS. SIMON: Of course. That is fine. 7 1094. MR. KEMP: Because, in addition, clearly 8 what we have got is a promotion even if, 9 hypothetically, the witness is right, and 10 his interpretation of the agreement, and 11 the ability to use promotion for Hockey Day 12 in Canada, we still have, and I am not 13 accepting that for a moment, but even if we 14 do, we still have a promotion that directs 15 viewers to the Hockey Day in Canada website 16 where merchandise is sold. And so, I am... 17 THE DEPONENT: The Hockey Day in Canada 18 website is part of the Hockey Night in 19 Canada website. 20 1095. MR. KEMP: Where merchandise is sold. 21 MS. SIMON: It is all under one, isn't 22 it? 23 THE DEPONENT: It is all under one. 24 Yes. 25 MS. SIMON: It is part of the same

T. Agostini - 293 1 website. 2 1096. MR. KEMP: Where merchandise is sold. 3 MS. SIMON: So, my understanding is that 4 you actually have that undertaking from 5 earlier. 6 1097. MR. KEMP: No, it is not. It is 7 something different. It is going to be a 8 separate web page. 9 MS. SIMON: Well, you have my 10 undertaking. U/T 11 12 BY MR. KEMP: 13 1098. Q. What is the Heritage Classic? 14 A. Are you a hockey fan? 15 1099. Q. Yes. 16 A. Okay. So, you know what the 17 Heritage Classic is. 18 MS. SIMON: He has the right to ask you 19 the question. Give him a straight answer, 20 please. 21 THE DEPONENT: The Heritage Classic was 22 a game that was held in Edmonton between 23 the Montreal Canadiens and the Edmonton 24 Oilers. It was an outdoor game, and it was 25 held in November of...I am trying to

T. Agostini - 294 1 remember if it was 2003. 2 And basically, it was made up of an 3 alumni game between the old Montreal 4 Canadiens and the old Edmonton Oilers, 5 including Wayne Gretzky and Mark Messier. 6 And it was followed by an outdoor game, 7 which featured the Montreal Canadiens and 8 the Edmonton Oilers. 9 MS. SIMON: The content of which is all 10 contained in one of the videos we have 11 produced to you. 12 THE DEPONENT: As a matter of fact, we 13 sent you the...we sent them the DVDs, 14 didn't we? 15 MS. SIMON: Yes. 16 THE DEPONENT: So, you have the DVDs. 17 18 BY MR. KEMP: 19 1100. Q. The composition was used? 20 A. Yes. 21 1101. Q. And was this a production that was 22 put on in conjunction with any other entity? 23 A. I don't understand your question. 24 1102. Q. Was it co-produced? Was it 25 produced...

T. Agostini - 295 1 A. It was Hockey Night in Canada. 2 1103. Q. Did CBC subsequently sell any rights 3 to the broadcast to any other entities? 4 A. Like, which entities? How do you 5 mean? Like who? 6 1104. Q. Anybody. 7 A. Well, like, give me an example. 8 What are you talking about? 9 1105. Q. Well, no. I am asking the 10 questions. 11 A. I don't know what you are talking 12 about. 13 MS. SIMON: He doesn't understand your 14 question. 15 16 BY MR. KEMP: 17 1106. Q. Did CBC sell the broadcast rights to 18 anybody? 19 A. No. But I...if...are you suggesting 20 Centre Ice? 21 1107. Q. Is that the same thing as the NHL? 22 A. Yes. As you know, it is the same 23 thing as the NHL, because that is what we have been 24 talking about since yesterday. So, the game would 25 have been made available to Centre Ice in the same

T. Agostini - 296 1 way as the other Hockey Night in Canada games were 2 made available to Centre Ice. 3 1108. Q. It was part of the same breach of 4 copyright, then? 5 MS. SIMON: Don't answer that question. /R 6 7 BY MR. KEMP: 8 1109. Q. So, did CBC enter into any sort of 9 separate agreement with NHL Centre Ice related to 10 the Heritage Classic? 11 A. Not to my knowledge. 12 1110. Q. And are you aware whether the 13 Heritage Classic has been broadcast in the United 14 States? 15 A. To my knowledge, in the same way, as 16 part of Centre Ice. 17 1111. Q. So, the composition has been 18 broadcast in the United States, as far as you know, 19 pursuant to, or as part of the Heritage Classic? 20 A. In the same way as Centre Ice, as 21 part of the Centre Ice package. 22 1112. Q. Is that a yes? 23 A. I am answering the question. I am 24 saying as part of Centre Ice. 25 1113. Q. Has this composition been broadcast

T. Agostini - 297 1 outside of Canada as part of the Heritage Classic? 2 A. No. The Heritage Classic was 3 broadcast as part of NHL Centre Ice. 4 1114. Q. And that includes the composition? 5 A. Well, that includes...the Heritage 6 Classic was a Hockey Night in Canada production, 7 which was made available to NHL Centre Ice in the 8 same way that...what we have been talking about 9 since yesterday, that other Hockey Night in Canada 10 broadcasts were made available to NHL Centre Ice. 11 1115. Q. And did you say to NHL Centre Ice, 12 "Hey, guys! The Heritage Classic includes the 13 composition and we have no right or entitlement to 14 have the composition broadcast outside of Canada." 15 Did you say that? 16 A. The Heritage game was made up...was 17 produced by Hockey Night in Canada, was made 18 available to NHL Centre Ice in the same way as other 19 Hockey Night in Canada broadcasts were made 20 available to NHL Centre Ice. 21 1116. Q. That wasn't my question. My 22 question was: Did you say to NHL Centre Ice, "By 23 the way, guys, you are not allowed to broadcast the 24 composition as part of the Heritage Classic outside 25 of Canada." Did you say that? Did anybody at CBC

T. Agostini - 298 1 say that? 2 A. I don't know if I can answer that, 3 because I...why would anyone at CBC say that? 4 1117. Q. Because it would be a breach of 5 copyright if it was broadcast out of Canada. That 6 is why CBC would do it. 7 A. I am going to answer the question in 8 the same way I just answered it, which was, the 9 Heritage game was produced by Hockey Night in 10 Canada. It was made available to NHL Centre Ice in 11 the same way that other Hockey Night in Canada 12 broadcasts were made available to NHL Centre Ice. 13 1118. Q. So, the answer is, no. You never 14 told NHL Centre Ice... 15 A. We did not have...I certainly did 16 not have any discussion with anyone at NHL Centre 17 Ice on the specifics of the Heritage game because, 18 as far I was concerned, there is no difference with 19 the Heritage game or any other Hockey Night in 20 Canada broadcasts. 21 1119. Q. That is part of the problem. You 22 didn't care if the composition was broadcast outside 23 of Canada, did you? 24 A. Those are your words, not mine. 25 1120. Q. Okay. Let me ask you: Did you

T. Agostini - 299 1 care? 2 A. Of course I did. 3 1121. Q. Well then, why didn't you take steps 4 to tell them not to broadcast it? 5 A. And I did. I wrote to John and I 6 told him, as I said to you yesterday, what we were 7 trying to do with regards to providing him with 8 additional money for the provision of the Hockey 9 Night in Canada further use of the music. And we 10 did that. 11 1122. Q. And even though you didn't have a 12 deal, you said, "Oh, don't worry. You can broadcast 13 it outside of Canada." 14 A. No, I am sorry. As I said to you 15 yesterday, there is a provision in the agreement 16 which allows us to license these games outside of 17 Canada, what we were... 18 1123. Q. Only if you have a deal. 19 A. Yes. And what we tried to do is to 20 try to get the deal done. 21 1124. Q. And you didn't have a deal. 22 A. You know that. I told you that 23 yesterday. 24 1125. Q. You didn't have a deal. 25 A. No, we don't. And we still don't

T. Agostini - 300 1 have a deal. 2 1126. Q. Yes. And so, you are not allowed to 3 sell it outside of Canada without a deal. 4 A. Yes. 5 1127. Q. And you continued to do it, and you 6 did it in the Heritage Classic, right? 7 A. The Heritage Classic is exactly the 8 same as the others. 9 1128. Q. Okay. And you haven't told anybody 10 at NHL Centre Ice, "We don't have a deal with the 11 plaintiffs or Mr. Ciccone, so you are not allowed to 12 broadcast the composition in the Heritage Classic." 13 A. No, as I...I have...you know, the 14 correspondence we have had with the NHL, and as 15 counsel said this morning, we have had discussions 16 with the NHL on this matter, and as I said to John, 17 "We have asked them"...to provide them with the 18 details that John wanted. It is not that we did not 19 try... 20 1129. Q. You mean the details that he was 21 asking four years ago? 22 A. No. Let me finish, because you are 23 asking me the questions. Let me answer the 24 question. 25 1130. Q. It would help if you would answer

T. Agostini - 301 1 them. 2 A. Right. I am answering the question. 3 MS. SIMON: There is no need to be 4 sarcastic. Just let him finish what he is 5 saying. 6 THE DEPONENT: Let me answer the 7 question. I was asked the specific 8 question from John. I answered the 9 question to the best of my ability. He 10 asked me another question to which I could 11 not provide the information. And even up 12 to this morning, we are still trying to 13 provide that information. 14 We asked the NHL for the information. 15 I said to him in that further use note that 16 I sent in July of 2003, "We are willing, 17 able to provide you with additional monies 18 for the use of the theme on NHL Centre 19 Ice." And I outlined the years that it was 20 being used for. I outlined some monies 21 that it was being used for. 22 And then, he asked me for details 23 which I did not have. And I could not 24 provide him details that I did not have. 25 And to finish, and in addition to that, we

T. Agostini - 302 1 have done our utmost, in terms of asking 2 the NHL to provide us with the information. 3 So, you know, maybe as a result of 4 today, we will be able to provide that, and 5 maybe we will be able to get this thing 6 concluded. 7 8 BY MR. KEMP: 9 1131. Q. You knew you didn't have a deal, and 10 you knew that NHL Centre Ice continued to broadcast 11 the composition outside of Canada. You knew both 12 those things, didn't you? You knew you didn't have 13 a deal with the plaintiffs, and you knew NHL Centre 14 Ice broadcast the composition. You knew both of 15 those facts, right? 16 MS. SIMON: Actually, he has answered 17 the question numerous times now. I mean, 18 you are asking the same question again. 19 1132. MR. KEMP: No. That is the longest 20 answer to a one-answer question that I have 21 ever heard. But, no, he hasn't, because we 22 haven't asked it in the context of the 23 Heritage Classic yet. 24 MS. SIMON: Haven't you been talking 25 about the Heritage Classic for the last ten

T. Agostini - 303 1 minutes? 2 3 BY MR. KEMP: 4 1133. Q. Not with the questions I was asking 5 yesterday. You knew both of those facts, didn't 6 you? You did not have a deal with John, and that 7 NHL Centre Ice was broadcasting the composition as 8 part of the Heritage Classic outside of Canada. 9 A. I am going to... 10 MS. SIMON: That is exactly what he has 11 been answering for the last ten minutes. 12 THE DEPONENT: I am going to repeat 13 myself again. 14 MS. SIMON: Go ahead, repeat yourself 15 again. 16 17 BY MR. KEMP: 18 1134. Q. How do you say that that is not a 19 breach of copyright? 20 A. Because we have a right to use the 21 composition as it is outlined in the contract... 22 1135. Q. With a deal. 23 A. Yes, but we are trying to do a deal. 24 1136. Q. But it is not good...off the record. 25 Let's break for lunch.

T. Agostini - 304 1 --- A LUNCHEON RECESS 2 3 TONY AGOSTINI, resumed 4 CONTINUED EXAMINATION BY MR. KEMP: 5 6 MS. SIMON: So, we were just having a 7 little bit of an off the record discussion 8 further to what we had talked about this 9 morning. I just want to make clear that we 10 are prepared to cooperate, with respect to 11 the NHL information that, my understanding 12 is that Mr. Ciccone has been seeking for 13 some time. We want to give that. And I 14 have further advised you that the 15 information that you are seeking is not in 16 the contract. 17 So, even if we were in a position to 18 give you the contract, which we are not, 19 because the NHL has not agreed that we are 20 in a position to give it over, that if you 21 decline to take that information from me 22 today, and I am prepared to answer any 23 questions that you have about that, a) we 24 are not returning to discovery on another 25 day on that material, and b) I will be

T. Agostini - 305 1 taking the position that your refusal to 2 take this information today when it is 3 being offered is a defence to any further 4 Motions, in that regard. 5 1137. MR. KEMP: Ms. Simon, I believe I made 6 clear this morning, after you first raised 7 this issue, that I am not, nor have I ever 8 declined to hear any information from you 9 today. You indicated that you would 10 perhaps be able to get some documents or 11 some information if you took a break. 12 We now have had an opportunity to take 13 a lunch recess. I do not believe you have 14 brought me any new documentation. If there 15 is anything you want to relay to me as part 16 of this Examination for Discovery, 17 especially if something has already been 18 asked, and if you want to answer something 19 in response to an undertaking or a question 20 taken under advisement, I invite you to do 21 so. 22 I have not, at any point in time, 23 refused to listen or hear anything from 24 you. I have asked for a multitude of 25 questions to be answered by way of

T. Agostini - 306 1 undertaking. Some of those you have agreed 2 to, others you have taken under advisement. 3 I, of course, am entitled to ask 4 questions properly arising from any answers 5 to undertakings that I ultimately get, and 6 I will do so. And if it requires a new 7 attendance or a reattendance, so be it. I 8 will exercise my rights in that regard. 9 However, I think it should be clear 10 from the record, and I believe the record 11 speaks clearly on this already, I haven't 12 declined to hear anything from you. If you 13 have something you want to say, go to it, 14 especially if it relates to questions I 15 have already asked. 16 MS. SIMON: I am reviewing the questions 17 that you asked this morning. My 18 recollection of this morning is that when I 19 told you, for example, that we had 20 information about broadcast and markets and 21 so forth, that you then declined. And so 22 that is why we didn't go ahead with me 23 getting that information. 24 1138. MR. KEMP: Well, I don't know what 25 broadcasts you are referring to, what

T. Agostini - 307 1 markets you are referring to, for what 2 broadcasts. I did, off the record, outline 3 a couple of hypothetical questions... 4 MS. SIMON: Right. 5 1139. MR. KEMP: ...I anticipated I might 6 have, once I was in possession of certain 7 information. At this point in time, I 8 don't have any information, so there is 9 nothing to ask. 10 MS. SIMON: Well, I think that the issue 11 at that time was that you were saying that 12 you figured the contract was the base line 13 agreement upon which you would then have 14 further questions. 15 But what I am saying to you, what I am 16 undertaking here is that I don't think that 17 the contract...in fact, I know the contract 18 will not assist you in that regard. So, if 19 I can give you some broadcast numbers or... 20 1140. MR. KEMP: Tell me what you feel you 21 have to tell me. 22 MS. SIMON: Well, you were interested in 23 broadcast numbers. You were interested in 24 market size... 25 1141. MR. KEMP: For what?

T. Agostini - 308 1 MS. SIMON: For Centre Ice, right? 2 1142. MR. KEMP: Okay. 3 MS. SIMON: And you also asked about 4 average viewership. I see your client is 5 writing a note. Maybe he has something 6 more, and if you want to put that to me, by 7 all means, I would like to give that to 8 you. 9 1143. MR. KEMP: So, do you have information 10 to tell me about that? 11 MS. SIMON: Yes. I just have to ask if 12 we can break so that I can organize myself 13 and have a look at what I have. 14 15 --- A BRIEF RECESS 16 17 TONY AGOSTINI, resumed 18 CONTINUED EXAMINATION BY MR. KEMP: 19 20 1144. MR. KEMP: I understand that counsel has 21 some information to share with me. Just 22 before you embark on that information, I 23 would ask for any and all documentation 24 that corroborates what you are about to 25 share with me, as well.

T. Agostini - 309 1 MS. SIMON: I will do my best. I 2 mean...yes, of course. 3 1145. MR. KEMP: Thank you. 4 MS. SIMON: So, you had asked about 5 subscriptions. There are... 6 1146. MR. KEMP: Okay. Just for clarity, can 7 you tell me what kind of subscriptions we 8 are talking about? 9 MS. SIMON: These are subscribers to the 10 Centre Ice Package, and I have them broken 11 down by season. 12 1147. MR. KEMP: And just for clarity, and 13 forgive me if I am interrupting... 14 MS. SIMON: That is okay. 15 1148. MR. KEMP: ...I am trying to understand 16 the context in which these numbers are 17 given to me. When you refer to subscribers 18 of the NHL Centre Ice Package, are you 19 talking about third persons, whether they 20 are consumers or whatever, who purchase a 21 package from the NHL, or is there a 22 specific and distinct corporate entity 23 called NHL Centre Ice? 24 MS. SIMON: That, I am not sure of. 25

T. Agostini - 310 1 BY MR. KEMP: 2 1149. Q. Are you able to assist, Mr. 3 Agostini? 4 A. I am not an expert in this matter, 5 but I think NHL Centre Ice is the collectivity of 6 all the games made available on the Centre Ice 7 Package, and the Centre Ice...NHL Centre Ice is then 8 provided through cable distributers to folks who 9 want to buy the NHL Centre Ice Package. But again, 10 I am not an expert in this area. 11 1150. Q. And who is it sold by, is it the 12 National Hockey League? 13 A. I don't think so. I think it is 14 sold by a third party, like, it could be Direct TV 15 or another provider of television services, and you 16 basically buy it either through them directly, or 17 through cable outlets that will have the ability to 18 connect your digital box to this series of games. 19 MS. SIMON: I think the analogy is the 20 way that you would get the movie network or 21 whatever, here, by subscribing to Rogers. 22 That is my understanding. If I am 23 mistaken, I will certainly have that 24 corrected. 25

T. Agostini - 311 1 BY MR. KEMP: 2 1151. Q. So, if I am, hypothetically, sitting 3 in Los Angeles, and I want to see hockey games, I 4 subscribe or make an arrangement with my local cable 5 provider to buy this package, is that how it works? 6 A. I think it is digital, but... 7 1152. Q. Digital? Okay. So, satellite 8 provider? 9 A. Your television service provider. 10 And I think the distribution is done digital, so you 11 need a box to be able to have access to the... 12 1153. Q. And who do these digital providers, 13 or where did these digital providers, in the various 14 jurisdiction, acquire their rights from? 15 A. Well, I am not going to answer that 16 question because I am not enough of an expert on 17 that. 18 1154. Q. Okay. Do you have any knowledge or 19 information or belief? 20 A. You mean, to help you with this 21 particular question? 22 1155. Q. Well, I am just... 23 A. I am going to...I would be 24 speculating because I am not...I don't want to 25 mislead you. I am not an expert in that area, but

T. Agostini - 312 1 my understanding is that the games are collected 2 through something called the NHL Centre Ice Package. 3 And then, they are made available for distribution 4 to distributers like the ones we outlined. 5 And then, people who are interested in buying 6 the NHL Centre Ice Package, they acquire it through 7 the distributer, and the distributer allows them, 8 for a service fee, to have access to the package. 9 1156. Q. So we are clear on the record, what 10 I want to know is how the package...I want to know 11 the chain that somebody, starting with the CBC, deal 12 with NHL Centre Ice, how it funnels down to an 13 ultimate consumer in Florida or Tennessee or Texas, 14 or wherever. So, it is... 15 MS. SIMON: If I look puzzled it is 16 because I am. I am not following the line 17 of your questioning. 18 1157. MR. KEMP: Well, what I gather, and 19 please correct me if I am wrong, because if 20 you are going to throw these numbers at me, 21 I want to make certain I understand how 22 things are working. CBC cut a deal with 23 NHL Centre Ice. NHL Centre Ice then has, 24 presumably, different deals with different 25 digital providers in the United States.

T. Agostini - 313 1 MS. SIMON: I mean, how can we answer 2 questions about what the NHL... 3 1158. MR. KEMP: You are about to give me 4 numbers, so I am assuming you have some 5 knowledge of it. 6 MS. SIMON: Well, you asked me about 7 subscription numbers, and I am going to 8 provide you those. But I can't speculate, 9 nor can I have this witness speculate about 10 what relationships the NHL has to deliver 11 the picture to the consumer. 12 1159. MR. KEMP: I am asking for CBC's 13 knowledge, information and belief as to the 14 manner in which the product is distributed 15 to users. In this case, it would be in the 16 United States, correct? 17 THE DEPONENT: Yes. 18 1160. MR. KEMP: And is the contractual 19 arrangement... 20 MS. SIMON: I will give you that 21 undertaking. I think I understand better 22 now what you are seeking. U/T 23 1161. MR. KEMP: Because it would seem to me 24 to be implicit in the arrangement between 25 CBC and NHL Centre Ice that NHL Centre Ice

T. Agostini - 314 1 then has the authority, at least the 2 authority pursuant to the terms of the 3 agreement with the CBC, to distribute it or 4 sell it to various digital providers in the 5 United States. Is that correct, or... 6 THE DEPONENT: Can I comment? 7 MS. SIMON: Please do. 8 THE DEPONENT: So, I think...just to get 9 into a bit more of my understanding of it, 10 what the NHL does is collect games being 11 broadcast in particular hockey markets. 12 So, for example, on a Saturday night, if we 13 are broadcasting a hockey game while there 14 are a number of hockey games going on that 15 Saturday night...so, Detroit may be doing a 16 game, that has nothing to do with us. 17 Colorado. 18 So, all these games are assembled, 19 because they are fed live through some 20 central place, and I am not exactly sure 21 what...know what the mechanism is. But 22 that central place, when you buy this 23 package, allows you to...they distribute 24 it, and it allows you to have the pick of 25 the game that you want to see.

T. Agostini - 315 1 So, if you were a huge Detroit fan, 2 and if Pittsburgh is playing in Detroit and 3 you live in Los Angeles and you don't have 4 it in your market, you can go to NHL Centre 5 Ice and you can pick that game. 6 So, all it is is really tonnage for 7 hockey fans who are really crazy about 8 trying to follow all the hockey. But it is 9 really tonnage of games, rather than...it 10 doesn't feature any particular game. 11 All it does is it takes...it has the 12 ability to collect the games being played 13 in various markets and make them available 14 to people who like hockey. And then, they 15 are distributed. 16 That is why...it is a little bit 17 like...I think football works the same way 18 here in Canada. If you are a football 19 aficionado, you can buy the football 20 package, and then you can see every game 21 being played. Although, the only markets 22 you can get free over there are football 23 games. But then you can pick...if you are 24 a Green Bay fan, you can see the Green Bay 25 game.

T. Agostini - 316 1 That is, I think, in a nutshell, in 2 its simplest terms, that is my best 3 understanding of it. But as I said before, 4 I am not a...I am just trying to help you 5 understand what these...what I think these 6 numbers...I haven't even seen the numbers, 7 but what the principle of NHL Centre Ice 8 is. 9 10 BY MR. KEMP: 11 1162. Q. And that is appreciated. And so, as 12 I understand it, then, some of that collection of 13 NHL Centre Ice games consists of Hockey Night in 14 Canada productions? 15 A. Yes. A small part of it. 16 1163. Q. Whichever ones you broadcast, I 17 gather? 18 A. Yes, because there could be, on a 19 Saturday night...if there are 30 teams in the NHL, 20 let's say they are all playing, there could be 15 21 games on. We would have two of those. 22 1164. Q. Yes. 23 MS. SIMON: All right. Well, it seems 24 that the witness has answered the question, 25 so I don't think there is any further

T. Agostini - 317 1 undertaking, is there? 2 1165. MR. KEMP: Yes. 3 MS. SIMON: There is? 4 1166. MR. KEMP: Yes. What are your numbers? 5 MS. SIMON: Sorry. But with respect to 6 that question, the undertaking and the 7 answer. 8 1167. MR. KEMP: No, no. It is not answered. 9 MS. SIMON: What part has been left out? 10 1168. MR. KEMP: Okay. I would like 11 confirmation of that. 12 MS. SIMON: Sure. U/T 13 1169. MR. KEMP: I would like confirmation 14 that that is the manner, at the time that 15 CBC entered into its agreement with NHL 16 Centre Ice, that that is its understanding 17 as to how it would work. 18 And does CBC have any knowledge or 19 information or belief as to the number of 20 different distribution agreements that NHL 21 Centre Ice has throughout the United 22 States? 23 THE DEPONENT: I don't. 24 25 BY MR. KEMP:

T. Agostini - 318 1 1170. Q. Would anybody at CBC possess that 2 information? 3 A. I don't know. I don't know. I 4 think it is a question that we have to ask 5 counsel... 6 MS. SIMON: I would be surprised if that 7 is information that wouldn't be covered by 8 the confidentiality agreement, but I could 9 be wrong. 10 1171. MR. KEMP: Well, I would like for those 11 kinds of inquiries to be made, and if you 12 are going to tell me you know it but it is 13 confidential, well, at least I will have 14 that answer. 15 MS. SIMON: No. I will ask the NHL if 16 that is... 17 1172. MR. KEMP: Well, I didn't ask for the 18 NHL. I had asked... 19 MS. SIMON: Well, you want to know what 20 number of distribution agreements are 21 between the NHL and any third parties that 22 it distributes on, is that right? 23 1173. MR. KEMP: Yes...no. I want to know if 24 CBC has that knowledge. 25 MS. SIMON: Well, I can tell you that,

T. Agostini - 319 1 likely if CBC does have that knowledge, it 2 wouldn't be in a position to provide it. 3 But, I mean, why don't we just say, I will 4 take it under advisement. I will make the 5 inquiries, and if we are able to give you 6 that information, and if it is not subject 7 to the NHL resisting us producing it, then 8 we would. U/A 9 10 BY MR. KEMP: 11 1174. Q. When you enter into your agreement 12 with NHL Centre Ice, is that something that would be 13 within the knowledge or something that CBC would be 14 interested in, just how broad a reach NHL Centre Ice 15 has? 16 A. I can't comment on that. I didn't 17 have the arrangement...I didn't do the discussions 18 with them. So, I think that is a question that we 19 have to ask someone else to comment on. 20 1175. Q. Do you know whether the NHL Centre 21 Ice Package is available in all 50 States in Puerto 22 Rico? 23 A. I don't know the answer to that. 24 1176. Q. I would like inquiries to be made of 25 CBC representatives.

T. Agostini - 320 1 MS. SIMON: I am sure I can provide you 2 that information. We can probably look on 3 the Internet and find it out. I bet you. 4 We can probably do that right now. 5 1177. MR. KEMP: That is not necessary. And 6 if it is not available in all 50 states in 7 Puerto Rico, I would ask you to identify 8 the specific states that it is available 9 in. 10 MS. SIMON: I will do that. That is 11 fine. U/T 12 1178. MR. KEMP: And I would also like for 13 inquiries to be made of CBC's knowledge at 14 the time the original agreement was entered 15 into with NHL Centre Ice as to the breadth 16 of reach into the States, at that time. 17 MS. SIMON: Well, I can answer that 18 question right now by telling you what the 19 number of subscribers is, dating back to 20 the 1999-2000 season. 21 1179. MR. KEMP: Well, no. What I want to 22 know is, at the time CBC entered into its 23 deal with NHL Centre Ice, what was the 24 knowledge of CBC as to whether or not the 25 NHL Centre Ice Package was available in

T. Agostini - 321 1 every single U.S. State? Did it have that 2 knowledge? May I have that undertaking? 3 MS. SIMON: Yes. U/T 4 5 BY MR. KEMP: 6 1180. Q. Aside from NHL Centre Ice, was there 7 any other similar kind of deal that CBC entered into 8 with anyone, vis-à-vis the United States? 9 A. Not to my knowledge. 10 1181. MR. KEMP: Okay. You, I believe, were 11 going to give me some numbers. 12 MS. SIMON: All right. So, these are 13 the numbers for the subscribers to the NHL 14 Centre Ice Package. 15 1182. MR. KEMP: So, these are retail 16 subscribers? Are we talking about homes? 17 MS. SIMON: I am afraid I can't qualify 18 it further because I do not know. I 19 believe it is residential subscribers, but 20 I don't want to commit to that 100 percent 21 in case I am mistaken. 22 1183. MR. KEMP: Okay. 23 MS. SIMON: 1999-2000, 76,350. 24 1184. MR. KEMP: That is throughout the United 25 States?

T. Agostini - 322 1 MS. SIMON: Yes. 2000-2001, 97,850. 2 1185. MR. KEMP: Okay. 3 MS. SIMON: 2001-2002, 123,162. 4 1186. MR. KEMP: Yes. 5 MS. SIMON: 2002-2003, 155,340. 6 2003-2004, 174,338. 2005-2006, 189,000. 7 Now, I can also give you...we had some 8 discussion about the number of games shown. 9 1187. MR. KEMP: That were Hockey Night in 10 Canada broadcasts, is that what you are 11 referring to? 12 MS. SIMON: Yes, I believe so. 13 1188. MR. KEMP: Okay. 14 MS. SIMON: I will double-check that if 15 I happen to be wrong, but this is my 16 understanding. I will just show Tony 17 Agostini. That makes sense? 18 THE DEPONENT: Yes. These are Hockey 19 Night in Canada games made available to, my 20 understanding, to NHL Centre Ice, which are 21 being shown concurrently with a number of 22 other games being made available on NHL 23 Centre Ice. 24 25 BY MR. KEMP:

T. Agostini - 323 1 1189. Q. Was the CBC deal with NHL Centre Ice 2 something that provided for Hockey Night in Canada 3 playoff games, as well? 4 A. Yes, I think so. 5 1190. Q. And so, there are more playoff games 6 that Hockey Night in Canada might be broadcasting 7 during the given season than two on a Saturday 8 night, right? 9 MS. SIMON: Well, I can show the witness 10 these numbers, and then, maybe the numbers 11 will help him to know the answer to that 12 question. 13 THE DEPONENT: Well, it is...like, it 14 is... 15 MS. SIMON: Do you want me to put the 16 numbers to you, and then he can fill in 17 some blanks if you have questions that way, 18 or which way do you want to do it? 19 1191. MR. KEMP: I am trying to appreciate 20 whether... 21 MS. SIMON: I am showing him the 22 numbers, and I think he will make sense of 23 them and be able to answer your question. 24 THE DEPONENT: I can tell you, by 25 looking at the numbers, that, at the

T. Agostini - 324 1 beginning...I can't make out whether it was 2 just some regular hockey...regular season 3 games plus some playoffs, but when I look 4 at '01-'02, '02-'03 and '03-'04, for 5 certain, that includes some playoff games, 6 as well as regular season games, just 7 because of the number of games. 8 1192. MR. KEMP: Okay. May I have those 9 numbers, please? 10 MS. SIMON: Yes. 1999-2000, 58. 11 2000-2001, 63. 2001-2002, 85. 12 2002-2003, 92. 2003-2004, 90. 13 And 2005-2006, 56. 14 1193. MR. KEMP: Now, the numbers that you 15 just read to me, for clarity, would be 16 broadcasts produced by CBC, as part of 17 Hockey Night in Canada broadcasts, correct? 18 THE DEPONENT: Yes, that is my 19 understanding of these numbers. 20 21 BY MR. KEMP: 22 1194. Q. And am I incorrect in assuming that 23 each of those broadcasts and those numbers relayed 24 by counsel would include the composition as part of 25 them?

T. Agostini - 325 1 A. Well, to the best of my knowledge, 2 they do. The only reason why I say "to the best of 3 my knowledge" is because there may have been, at 4 some point in time, the desire to try not to put it 5 on, but I don't know if that ever materialized. 6 1195. Q. And when there might have been the 7 desire not to have it put on? 8 A. In our discussions with the NHL, as 9 we were trying to resolve this, the notion of 10 beginning the game at puck drop, which would have 11 been seven minutes after the hour, I think was 12 considered. 13 I think it just got to be just way too 14 complicated to do that, but I think it was...now, I 15 don't know if there...there may have been some 16 games, and I can't say which ones, there may have 17 been some games where it was attempted to just pick 18 up the game at the beginning of the puck drop, and 19 then, you know...but it was complicated, I think, 20 and that is why we ended up not doing that. 21 So, I guess to answer your question, there may 22 be some of those games where an attempt was made 23 just to pick up the game later. But I can't tell 24 you exactly how many of that, if any of that 25 happened, and for how many games it would have

T. Agostini - 326 1 happened. 2 1196. Q. Then, by way of undertaking, I would 3 ask for an undertaking to advise whether any of 4 those broadcasts did not include the composition. 5 And to the extent any of the broadcasts did not 6 include the composition, I would like your advice as 7 to the specific details of the game involved and the 8 date of the game involved. 9 MS. SIMON: You have my undertaking. 10 11 BY MR. KEMP: 12 1197. Q. Thank you. How do these numbers... 13 MS. SIMON: Just a moment, sorry. Maybe 14 I better take that back. Do we have a way 15 of verifying that, as well? I am afraid we 16 may not have a way of verifying that, 17 actually. 18 THE DEPONENT: The only way to verify it 19 is to ask the NHL, and then ask them to 20 confirm for us if there are any of those 21 games where they thought that, what I just 22 described, had occurred. But that is the 23 only way to do it. 24 MS. SIMON: Okay. I am going to have to 25 take my undertaking back, then. I

T. Agostini - 327 1 apologize, but... 2 1198. MR. KEMP: I don't know that that is 3 possible, actually. 4 MS. SIMON: Well, I don't think you had 5 even asked the next question yet. 6 1199. MR. KEMP: But I still think I have an 7 undertaking. 8 MS. SIMON: If it is not something I can 9 do, I can't do it. I can't undertake to do 10 it. 11 1200. MR. KEMP: If you can't do it, you can't 12 do it, and I will have to live with that. 13 MS. SIMON: Well, I am going to take it 14 under advisement. 15 1201. MR. KEMP: But if...well, you have 16 already given me an undertaking. 17 MS. SIMON: Well, I took it back within 18 the next second and before the following 19 question was asked. So, I am going to say 20 that I will take it under advisement. U/A 21 1202. MR. KEMP: I am not going to get 22 involved in that kind of argument. If you 23 are going to take the position at trial 24 that some of those broadcasts did not 25 include the composition, I want to know

T. Agostini - 328 1 about it. 2 MS. SIMON: Well, if we are going to 3 lead evidence, we will have to lead some 4 evidence. 5 1203. MR. KEMP: Well, I want to know about it 6 in advance of trial. I don't want to be 7 hearing it for the first time at trial. 8 So, that is why I am asking for the 9 undertaking, and I have got the 10 undertaking. 11 MS. SIMON: Well, as far as I am 12 concerned, you don't, but... 13 1204. MR. KEMP: Well, if not, we can infer or 14 assume that every single one of those 15 broadcasts included the composition. 16 MS. SIMON: Well, infer what you want to 17 infer. I don't that is the inference to be 18 drawn, but... 19 1205. MR. KEMP: Well, that is your 20 obligation, to give me the evidence, so... 21 22 BY MR. KEMP: 23 1206. Q. Now, how do those numbers compare 24 with the total number of Hockey Night in Canada 25 broadcasts during the same seasons?

T. Agostini - 329 1 A. Well, roughly speaking, it is not 2 all the games for all the seasons. 3 1207. Q. And could you provide me, then, with 4 a breakdown of the actual number of games broadcast 5 by Hockey Night in Canada by itself? 6 A. Yes, sure. Easy. 7 MS. SIMON: Is that in our productions, 8 or no? 9 THE DEPONENT: No. 10 MS. SIMON: Okay. We will undertake to 11 give you that. U/T 12 13 BY MR. KEMP: 14 1208. Q. Do these numbers represent roughly 15 90 percent, or would it be a higher or lower number, 16 or... 17 A. No. I will say... 18 MS. SIMON: Why don't we just fulfil the 19 undertaking, and then we can compare... 20 1209. MR. KEMP: Well, I want to have some 21 degree... 22 MS. SIMON: I mean, unless he has a 23 decent...if he has a sense, that is fine. 24 But I don't want him guessing, either. 25 THE DEPONENT: No. My sense is that in

T. Agostini - 330 1 the early seasons, the first two seasons, 2 it is maybe 50 percent. And in the seasons 3 after that, between...about 80 percent. 4 MS. SIMON: I am not going to have him 5 bound by that answer, though. 6 1210. MR. KEMP: All right. You have 7 undertaken to give it to me. 8 MS. SIMON: That is fine. 9 1211. MR. KEMP: I am just asking the next... 10 MS. SIMON: I just don't want him to be 11 bound by an answer when he is, you know, 12 giving you a guess, basically, here. 13 1212. MR. KEMP: Why would I try and bind him 14 to that when it is subject to an 15 undertaking, and it is subject to 16 clarification. I am just trying to get a 17 sense right now. I am not trying to... 18 MS. SIMON: That is fine. Let's have 19 the next question. 20 THE DEPONENT: I am just trying to be 21 helpful with the numbers. 22 1213. MR. KEMP: No, I appreciate that. 23 MS. SIMON: But not at the cost of being 24 inaccurate, that is what I don't want. 25 THE DEPONENT: Absolutely.

T. Agostini - 331 1 MS. SIMON: Let's go on. 2 3 BY MR. KEMP: 4 1214. Q. Now, if you showed a double-header, 5 as you do in... 6 A. A double-header is two games. 7 1215. Q. Yes, in Canada. 8 MS. SIMON: Let him finish the question. 9 10 BY MR. KEMP: 11 1216. Q. If you show a double-header in 12 Canada, would both of those games be available on 13 the NHL Centre Ice Package, as far as you know? 14 A. Well, they may choose to take it. 15 They may not choose to take it. The reason is that 16 if the game is being seen by...is being broadcast by 17 an American broadcaster, then there would be no need 18 for them to show our game. That is why the numbers 19 may be fluctuating, because, as I said before, on 20 any given Saturday night, there could be 15 hockey 21 games going on. And if we do Detroit at Toronto... 22 if we do Detroit at Toronto, there is a Toronto 23 version of that on Hockey Night in Canada. There is 24 a Detroit version of that in Detroit. 25 1217. Q. Somewhere, yes.

T. Agostini - 332 1 A. And in other...it could be a Fox. 2 It could be whatever. So, they don't always take 3 our games. 4 1218. Q. Regardless of the number of Hockey 5 Night in Canada productions that were used by NHL 6 Centre Ice, setting that number aside that your 7 counsel just provided to me, did NHL Centre Ice have 8 the entitlement, pursuant to your contractual 9 agreement, to use all of them? 10 A. I have to let someone who knows the 11 contract in more detail to answer that. I don't 12 know the answer to that question. 13 1219. Q. May I have that undertaking? 14 MS. SIMON: Well, that forms part of the 15 contract. So, I have told you what the 16 position is, with respect to the contract. 17 If you will agree to a Ceiling Order, we 18 are happy to produce it, otherwise... 19 1220. MR. KEMP: Then answer the question. 20 MS. SIMON: I don't have the answer to 21 that question. 22 1221. MR. KEMP: Okay. Then I would like an 23 undertaking for it to be answered. 24 MS. SIMON: Well, I will take it under 25 advisement, then. U/A

T. Agostini - 333 1 1222. MR. KEMP: It is going to be a long 2 Motion. 3 4 BY MR. KEMP: 5 1223. Q. Do you have any knowledge, 6 information or belief that Leafs TV has ever used a 7 Hockey Night in Canada broadcast? 8 MS. SIMON: Sorry. If you are going to 9 change topics, which it sounds like you are 10 now, is that right? 11 1224. MR. KEMP: I just asked a question. 12 MS. SIMON: Well, I just want to... 13 1225. MR. KEMP: Do you have more information 14 you wanted to tell us? 15 MS. SIMON: Well, yes, because I 16 think... 17 1226. MR. KEMP: Okay. 18 MS. SIMON: ...you had been interested 19 in payments to the CBC. So, I do have 20 information about that, and if you are 21 moving onto another subject matter, I 22 would... 23 1227. MR. KEMP: Okay. I want you to make 24 certain that you are satisfied you have 25 given me absolutely everything you feel you

T. Agostini - 334 1 want to give me. 2 MS. SIMON: This has nothing to do with 3 what I want to give you. It has to do with 4 what you are asking for, or what your 5 client has been seeking. So, the payments 6 to the CBC is the final information that I 7 have at my disposal here. 8 So, 1999-2000, 62,360. 9 2000-2001, 79,247. 2001-2002, 131,190. 10 2002-2003, 178,462. 2003-2004, 202,951. 11 1228. MR. KEMP: '05-'06? 12 MS. SIMON: I don't have that 13 information. 14 1229. MR. KEMP: Is that Canadian or U.S. 15 dollars? 16 MS. SIMON: U.S. 17 1230. MR. KEMP: As part of the agreement, in 18 addition to the monetary payments that you 19 have just referenced, is there any other 20 kind of benefit or cross-promotion that NHL 21 Centre Ice receives as part of the...or 22 that CBC receives as part of the deal? 23 THE DEPONENT: If you are asking me, I 24 don't know the answer to that question. 25 1231. MR. KEMP: I would like an undertaking

T. Agostini - 335 1 for inquiries to be made. 2 MS. SIMON: I will have to take that 3 under advisement, for the same reason. U/A 4 1232. MR. KEMP: Just so I am clear, if, in 5 addition to this money in U.S. dollars, CBC 6 enjoys some other benefit, I want to know 7 about it. If they enjoy some form of 8 commitment to advertising via NHL Centre 9 Ice, I want to know about it. I want to 10 know all of the benefits that CBC enjoys. 11 MS. SIMON: I understand the question. 12 1233. MR. KEMP: May I have the undertaking? 13 MS. SIMON: I have given you an under 14 advisement. 15 1234. MR. KEMP: Whenever that is. Do you 16 have anything else you were going to tell 17 me? 18 MS. SIMON: I think those are the 19 answers to the questions that you have put 20 to me, thus far. 21 22 BY MR. KEMP: 23 1235. Q. Now, to your knowledge, has Leafs TV 24 ever broadcast a Hockey Night in Canada production? 25 A. Do you mean at the same time as it

T. Agostini - 336 1 is being broadcast on CBC? 2 1236. Q. At any time. I am assuming it 3 wouldn't be at the same time as CBC, but tell me if 4 I am wrong. 5 A. Well, it wouldn't. 6 1237. Q. Yes, I wouldn't have thought so. 7 So, I am talking about at any time. 8 A. We have provided to Leafs TV a 9 cut-down version of Hockey Night in Canada, which 10 would focus on game action. 11 1238. Q. What is a "cut-down version"? 12 A. It means it is a game in an hour, 13 basically, where, in late night, after the games are 14 concluded...we are not doing it this year, but we 15 did it the last time of the hockey season, before 16 this one, where, basically, it was Hockey Night...it 17 was basically the Leafs game cut down to an hour. 18 So, every best game...every best highlight of 19 the game is basically seen in its cut-down game in 20 an hour. And that was provided to Leafs TV. It was 21 aired on CBC, and it was provided to Leafs TV, as 22 well. 23 1239. Q. And how many different games have 24 been delivered to Leafs TV? 25 A. From memory, I don't remember. It

T. Agostini - 337 1 wasn't that many. But the theme wouldn't be part of 2 it. 3 1240. Q. Do you know for certain that the 4 theme has never been part of one of the cut-down 5 versions? 6 A. To the best of my knowledge, it has 7 not, to the best of my knowledge. Do you have 8 information to the contrary? 9 1241. Q. Well, I am just trying to figure 10 out...well, I haven't seen any, unlike the curling. 11 I would like inquiries to be made of CBC. 12 MS. SIMON: Whether the theme has ever 13 been broadcast on Leafs TV? 14 1242. MR. KEMP: Whether any of the cut-down 15 versions... 16 THE DEPONENT: Game in an hour. 17 1243. MR. KEMP: ...game in an hour that have 18 been sold...are they sold by CBC to Leafs 19 TV, or what is the arrangement? 20 THE DEPONENT: There is a...we have a 21 sharing arrangement with Leafs TV. 22 23 BY MR. KEMP: 24 1244. Q. What do you share? 25 A. We share some...we provide them with

T. Agostini - 338 1 game...with cut-down versions of the games, and they 2 provide us with some promotional material with the 3 Maple Leafs. 4 1245. Q. I would like inquiries to be made 5 whether any of the cut-down versions have ever 6 included the composition. 7 MS. SIMON: I will give that 8 undertaking. I will make that inquiry. U/T 9 10 BY MR. KEMP: 11 1246. Q. Is that the sole Hockey Night in 12 Canada product that has been broadcast on Leafs TV? 13 A. I am not sure whether there is not 14 some...it is possible, and I would have to check 15 this, that Leafs TV might be carrying some old 16 Hockey Night in Canada games. 17 1247. Q. And how would that entitlement have 18 come about? 19 A. The entitlement would have come 20 about as a result of an old...our ongoing 21 relationship with Molstar who would have the right 22 to archived hockey games, which they could be 23 providing, and I think we better check to be 24 certain, which they could be providing to Leafs TV. 25 1248. Q. I would ask for those inquiries to

T. Agostini - 339 1 be made. 2 MS. SIMON: I don't see how that is 3 relevant. 4 1249. MR. KEMP: Why? 5 MS. SIMON: Well, we are talking about a 6 time when that wouldn't even play into this 7 litigation. 8 1250. MR. KEMP: If they are broadcast 9 currently, it would. 10 MS. SIMON: How? 11 1251. MR. KEMP: Because its use of the 12 composition on a current broadcast on Leafs 13 TV, whether it would be pertinent to the 14 game, or not. 15 MS. SIMON: Okay. Give me that 16 question, sorry? 17 1252. MR. KEMP: I would like to know...well, 18 the question was, whether any other 19 product, Hockey Night in Canada product, 20 has been broadcast by Leafs TV, or rather, 21 sold to Leafs TV? 22 MS. SIMON: You have my undertaking. U/T 23 1253. MR. KEMP: And if so, I would like 24 details of what Hockey Night in Canada 25 products have been sold to Leafs TV.

T. Agostini - 340 1 MS. SIMON: That is fine. U/T 2 1254. MR. KEMP: And whether such products or 3 broadcasts include the composition. 4 MS. SIMON: I will tell you what I will 5 do, I will do it in reverse order, because 6 if none of them contain the composition 7 that are being sold, I don't really think 8 you are interested in the other 9 information, anyway, right? 10 1255. MR. KEMP: Well, we have Mr. Agostini's 11 belief as to the cut-down versions 12 including the composition. However... 13 THE DEPONENT: Not including the 14 composition. 15 1256. MR. KEMP: Yes, I didn't mean to 16 mischaracterize. I was just...kind of, a 17 double negative. We have Mr. Agostini's 18 belief that the cut-down versions do not 19 include the composition, although you are 20 looking into that. I understand that Leafs 21 TV also has broadcast more, what do you 22 call them, archived games, older games? 23 THE DEPONENT: Yes, classics, vintage, 24 whatever. 25 MS. SIMON: I understand what

T. Agostini - 341 1 information you want, and I have given you 2 that undertaking. 3 1257. MR. KEMP: I want to know what rights 4 have been transferred, or licensed by CBC 5 to Leafs TV in that regard. Is there a 6 certain number of years where classic 7 games, rights have been conveyed to Leafs 8 TV? And if so, I want to know details of 9 what rights have been transferred from CBC 10 to Leafs TV, with respect to Hockey Night 11 in Canada television broadcasts. May I 12 have that undertaking? 13 MS. SIMON: That part, I will have to 14 give you an under advisement on, because I 15 am just not sure about that question, so I 16 will give you an under advisement. But the 17 other information, that is no problem. I U/A 18 will get that for you. U/T 19 20 BY MR. KEMP: 21 1258. Q. I don't know if you will know the 22 answer to this, off the top of your head: Do you 23 have any knowledge as to the actual viewership for 24 any of the individual games that were aired by NHL 25 Centre Ice, or is there a means or a way to find

T. Agostini - 342 1 that information out? 2 MS. SIMON: I can advise that we have 3 asked and pressed for that information, and 4 even the NHL itself does not have that 5 information. And my understanding is, 6 further, that they have made those 7 inquiries, and there is not a way to get 8 that information. 9 1259. MR. KEMP: Okay. So, there is not a 10 subtle log-in process that is registered 11 that that number can... 12 MS. SIMON: I will tell you, I was 13 surprised myself, quite frankly. I thought 14 there would be a Nielsen or a something, 15 but they don't appear to have a way that 16 they track that, or that any entity tracks 17 that. Now, if there is such a thing, and 18 if we don't know about it, nor does the 19 NHL. 20 THE DEPONENT: I would add to that. I 21 think it would be very difficult to do 22 that, because... 23 MS. SIMON: That is fine. You don't 24 need to...there is no point. I mean, we 25 have made the inquiries. They have made

T. Agostini - 343 1 the inquiries, and apparently, there is no 2 body that does so. 3 4 BY MR. KEMP: 5 1260. Q. Do you have any kind of similar 6 numbers for what you gave me, as it relates to 7 number of broadcasts in the United Kingdom? 8 A. I don't have it off the top of my 9 head, but we can get you that. 10 1261. Q. Thank you. 11 MS. SIMON: Isn't there something in our 12 productions about them, or no? 13 THE DEPONENT: There might be. 14 MS. SIMON: Why don't you take a moment 15 and look. If there is... 16 THE DEPONENT: I am trying to...didn't 17 we talk about that yesterday? 18 19 BY MR. KEMP: 20 1262. Q. It would be uncharacteristic of me 21 not to ask for those numbers. 22 A. And I think what we had said 23 yesterday was...and I think you asked for the 24 detail, and I think what we had said yesterday was 25 that the contract...a contract was provided for a

T. Agostini - 344 1 season and a half. And then, I think you asked us 2 for numbers, and I said...I thought we had said we 3 would get you some numbers about what that meant. 4 1263. Q. There were certainly questions taken 5 under advisement, with respect to any subsequent 6 deals. But I don't know that...the reason I think I 7 might not have is because, yesterday, I didn't have 8 the benefit of the NHL Centre Ice numbers that 9 counsel just relayed to me. Just for reference 10 purposes... 11 MS. SIMON: I agree. I don't think that 12 you asked that question. Are you asking 13 about subscription, or what are we asking 14 right now? 15 1264. MR. KEMP: I don't know if it is... 16 MS. SIMON: It is not a subscription. 17 18 BY MR. KEMP: 19 1265. Q. It is not a subscription in the 20 U.K., is it? 21 A. I think it is. 22 1266. Q. Is it? Okay. To the extent that it 23 is subscription, then I would ask for inquiries to 24 be made in an effort to obtain those kinds of 25 numbers, similar to those that you have just

T. Agostini - 345 1 provided me, in relation to NHL Centre Ice. 2 A. And without knowing the full detail 3 of it, I think, in the same manner that this...what 4 we have described here as "subscribers", to the best 5 of my knowledge, this describes the whole universe 6 of subscribers for NHL Centre Ice, that is, for all 7 the games being seen in the United States, of which 8 ours are a small portion. 9 And whatever is being seen in the U.K., or 10 North American...I think it is called the North 11 American Sports Network, the subscriber base would 12 be for all of the services that are seen there, 13 including, I assume, and I have never seen it, 14 baseball, football, hockey, basketball, whatever. 15 So, ours would be a small part of that 16 schedule, and the numbers of subscribers interested 17 in hockey would be a portion of that. But I don't 18 have those numbers, except I have a sense of how 19 NASN works, just because of its program content. 20 1267. Q. To the extent you are able to 21 provide me whatever numbers you are able to get, I 22 would appreciate it. 23 MS. SIMON: You have my undertaking. U/T 24 25 BY MR. KEMP:

T. Agostini - 346 1 1268. Q. Now, if I could direct you to your 2 e-mail, which I have identified as being an e-mail 3 at volume 1, year 2002. 4 A. Volume 1. What is the number? 5 1269. Q. The year 2002. There is a series of 6 e-mails from the year 2002. 7 A. Is there a tab, or... 8 1270. Q. Yes. The specific tab is number 8. 9 It is about 55, 60 percent the way through the 10 binder. 11 MS. SIMON: Is it behind section C, 12 then, is that right? 13 1271. MR. KEMP: Yes. 14 MS. SIMON: Okay. I think we have it. 15 August 27, 2002? 16 17 BY MR. KEMP: 18 1272. Q. Yes. And then, page 4 of that 19 e-mail chain, and I believe this is you writing. 20 Sometimes it does because it does become difficult 21 to follow, midway through the page, the paragraph 22 beginning with the words: 23 "...Game action..." 24 A. Yes. 25 1273. Q. Midway through, there is a sentence

T. Agostini - 347 1 that begins: 2 "...The NHL has confirmed that they provide 3 England with two or three games per year. 4 Some games are also provided on a sporadic 5 basis to Japan and Scandinavia..." 6 Do you see that reference? 7 A. Yes. 8 1274. Q. Are those your words? 9 A. Yes. 10 1275. Q. Can you tell me, when you say that 11 "games were provided to Japan", what you are talking 12 about? 13 A. To the best of my knowledge, all it 14 is is game action. 15 1276. Q. Okay. That is to the best of your 16 knowledge? 17 A. Yes. 18 1277. Q. At one point in time, was there not 19 a mistaken belief that that is what NHL Centre Ice 20 was using, as well, just game action? 21 A. Not to my knowledge. 22 1278. Q. Who has the rights to broadcast game 23 action in Japan? 24 A. The NHL provides the rights to game 25 action.

T. Agostini - 348 1 1279. Q. And do you know the entity in Japan 2 with whom they have their arrangement? 3 A. I don't. 4 1280. Q. And the NHL...are we saying NHL is 5 something distinct from NHL Centre Ice, or are we 6 still talking about NHL Centre Ice? 7 A. I think it would be NHL 8 International, and...but I think we would have to 9 double-check that. But I am quite sure it would be 10 NHL International. 11 1281. Q. What is NHL International? 12 A. It is basically a subset of the NHL, 13 which focuses on providing content to hockey fans 14 outside of North America. 15 1282. Q. And where does NHL International 16 acquire their rights to broadcast any Hockey Night 17 in Canada action? 18 A. Through Hockey Night in Canada. 19 1283. Q. And when was the first agreement 20 between CBC and NHL International entered into? 21 A. Well, it is...I don't think there is 22 a specific agreement with NHL International. I 23 think NHL basically acquires the rights to game 24 action. And game action, just so that we are clear, 25 is just the players playing, and those rights

T. Agostini - 349 1 are...that is the game. 2 The game belongs to the NHL, and we are rights 3 holders. But what they want to be able to do is to 4 see the goals, and provide the goals, or the big 5 plays, or whatever, to make those images and provide 6 those images to international hockey fans. 7 1284. Q. Does NHL or NHL International have 8 to enter into any kind of special agreement with 9 Hockey Night in Canada or CBC, with respect to 10 broadcasts of... 11 A. No. 12 1285. Q. ...Hockey Night in Canada? 13 A. Of what, of Hockey Night in Canada? 14 1286. Q. Yes. 15 MS. SIMON: That is why it is important 16 for you to let him finish the question. 17 Wait until he has completely finished the 18 question before you answer, okay? 19 THE DEPONENT: Okay. Ask the question 20 again, then. 21 22 BY MR. KEMP: 23 1287. Q. Well, this e-mail that you have 24 written where you refer to Japan and Scandinavia, as 25 I understand it, it is in the context of Mr. Ciccone

T. Agostini - 350 1 expressing concerns about extra-territorial use, 2 correct? 3 A. Yes. 4 1288. Q. And he doesn't bring up Japan and 5 Scandinavia, you do. And given that it is in the 6 context of Mr. Ciccone's concern that the 7 composition is being used outside of Canada, I am 8 attempting to understand why you referenced Japan 9 and Scandinavia in this e-mail. 10 MS. SIMON: I am going to, actually, 11 have to intervene because my client pointed 12 out something to me in preparation the 13 other night, which is, sometimes in the 14 e-mails, and I think this one is an 15 accurate example, it is hard to tell that 16 there is a give and take. 17 But I think that, in the course of 18 this page, page 4, there is also Mr. 19 Ciccone speaking. For example, isn't that 20 Mr. Ciccone's writing here, isn't it? 21 "...Further, I do not recall..." 22 It is actually very misleading in these 23 e-mails because... 24 1289. MR. KEMP: Well, except we have already 25 established...

T. Agostini - 351 1 MS. SIMON: No, but you pointed out that 2 it was not Mr. Ciccone who raised it first. 3 But I think it looks here as if it is him 4 that raised it first. 5 1290. MR. KEMP: I am pretty certain... 6 MS. SIMON: Do you want to have a look 7 at the e-mail, and you will see... 8 9 BY MR. KEMP: 10 1291. Q. This e-mail exchange, as I 11 understand it, is in the context of Mr. Ciccone 12 making inquiries as to extra-territorial use, and it 13 is my understanding and information that it wasn't 14 Mr. Ciccone that mentioned Japan and Scandinavia. 15 And given in the context that he is making inquiries 16 as they relate to the use of the composition, I am 17 trying to appreciate or understand why you refer to 18 Japan and Scandinavia. 19 MS. SIMON: That is a very convoluted 20 question. Maybe you can break it down a 21 little bit. Do you want to ask him that 22 first part about who raised Scandinavia and 23 Japan? 24 25 BY MR. KEMP:

T. Agostini - 352 1 1292. Q. Did you understand that? I thought 2 I was clear. 3 MS. SIMON: Did you follow that 4 question? I mean, it had a few assumptions 5 built into it, too, so... 6 THE DEPONENT: I think if you are asking 7 me, was my understanding that the theme was 8 being seen in Japan and Scandinavia, my 9 understanding is not. To the best of my 10 knowledge, the theme is not being seen in 11 Japan or Scandinavia. 12 13 BY MR. KEMP: 14 1293. Q. Nor has it ever been? 15 A. To the best of my knowledge. 16 1294. Q. Would there be anyone at CBC who 17 might be able to shed light on that? 18 A. I don't know who could. I mean, the 19 only thing we could do is, again, ask the NHL, and 20 to the best of my knowledge, it has not been...the 21 Hockey Night in Canada theme has not been heard in 22 Japan. That is to the best of my knowledge. 23 And, you know, I haven't been to Scandinavia in 24 the last while, and I haven't been to Japan in the 25 last while, and I have no way of telling, except

T. Agostini - 353 1 that my understanding is game action is...what I was 2 talking about was game action. And I think John 3 even refers to that when he reiterates it. 4 Now, I may have, in my note, just been 5 referring to game action as part of Japan and 6 Scandinavia. But to the best of my knowledge, I 7 have never...no one has ever told me that, you know, 8 the theme was being heard in Japan or in 9 Scandinavia. 10 1295. Q. And aside from the United Kingdom 11 and the United States, do you have any knowledge, 12 information and belief that the composition has been 13 heard in any other foreign territory? 14 A. To the best of my knowledge, no. 15 That is to the best of my knowledge. 16 1296. MR. KEMP: Counsel, do you have any 17 knowledge, information and belief on behalf 18 of any other representatives of CBC? 19 MS. SIMON: I do not. 20 21 BY MR. KEMP: 22 1297. Q. Can you tell me, at some point in 23 time, did you become aware of a desire on the part 24 of Bell Mobility to use the composition as a ring 25 tone?

T. Agostini - 354 1 A. When? Are you asking me when, 2 sorry? 3 1298. Q. Do you have any knowledge of that? 4 A. Of the Bell ring tone? 5 1299. Q. Issue. 6 A. Yes. 7 1300. Q. Yes. Tell me, in your own words, 8 what you remember about that, how it came about, and 9 the series of... 10 MS. SIMON: No, that is too broad. 11 Just... 12 13 BY MR. KEMP: 14 1301. Q. Tell me what you know about it. 15 MS. SIMON: Take him to something, or 16 some point in time, or something, and then 17 he will answer your question. 18 1302. MR. KEMP: No. Don't tell me how to 19 conduct my examination. I asked him what 20 he remembered of it. 21 MS. SIMON: I am telling you to do 22 anything. I am just trying to help the 23 witness... 24 1303. MR. KEMP: Yes, you did. 25 MS. SIMON: ...so that if you want to

T. Agostini - 355 1 narrow it a little bit so that he can 2 answer specific questions, that is fine. 3 1304. MR. KEMP: Well, I might have specific 4 questions once I ascertain this witness's 5 knowledge of it. 6 MS. SIMON: Well, what do you want to 7 know? 8 9 BY MR. KEMP: 10 1305. Q. What do you remember about the 11 issue? 12 MS. SIMON: Well, what do you want to 13 know? 14 1306. MR. KEMP: I am asking him what he 15 remembers. 16 MS. SIMON: When? 17 1307. MR. KEMP: From the beginning. That is 18 the first thing... 19 MS. SIMON: Of the beginning of what? 20 1308. MR. KEMP: Well, Counsel... 21 MS. SIMON: Like, I mean, just narrow it 22 down, and then he will answer your 23 questions. 24 1309. MR. KEMP: I am entitled to conduct the 25 examination in a manner I deem appropriate.

T. Agostini - 356 1 BY MR. KEMP: 2 1310. Q. At some point in time, did you 3 become aware that Bell Mobility wanted to use the 4 composition as a ring tone? 5 A. Yes. 6 1311. Q. How did that come to your attention? 7 A. I think...actually the files...if we 8 follow that, the initial conversations, anyway, 9 quite well, and I remember because I looked at the 10 correspondence in the last few days. I wouldn't 11 have remembered it otherwise in its detail. But I 12 think the file shows that someone had inquired 13 initially, from our executive producer, about 14 someone at Bell being interested to use the theme to 15 do a ring tone for Bell for a cell phone. 16 And by the time...I think Joel responded, via 17 e-mail, and before I even had a chance to send a 18 note to the fellow, the fellow sent a note to me 19 asking about the use of the Hockey Night in Canada 20 theme for a ring tone. And I think I responded to 21 him, and it is in writing, it is in the file, that, 22 first of all, what was he contemplating? 23 And I think he sent me another note, giving a 24 brief synopsis of what he was contemplating. And I 25 suggested to him that he should have a chat with

T. Agostini - 357 1 John, that we might be...I don't even know if I had 2 wrote that we might be interested. But I sent a 3 note to him, basically saying that he should have a 4 chat with John, or he should talk to John, as John 5 was the person who was responsible for 6 administrating the Hockey Night in Canada theme. 7 1312. Q. Did you ever discuss the issue with 8 John? 9 A. Well, I think we did...well, 10 discussing the issue, I think we must have had some 11 conversations about it. I know there are e-mails 12 that, sort of, confirm that there has been 13 conversations...that there were conversations about 14 it. 15 But I think what I remember...I think what I 16 remember most is that I gave the information to the 17 fellow from Bell Mobility. There was some very...if 18 John and I discussed it, it was very much at the 19 100,000 foot level. And then... 20 1313. Q. I am sorry. What does that mean? 21 A. That means at a very theoretical 22 level. And then, months passed, and then I 23 understood that there was a deal in place with Bell 24 Mobility for the ring tone, so... 25 1314. Q. Between whom?

T. Agostini - 358 1 A. Between John and Bell. 2 1315. Q. And did you have any understanding 3 as to the terms of that deal? 4 A. No. 5 1316. Q. Did you have any thoughts or 6 opinions about that deal? 7 A. I would, of course, have thoughts 8 and opinions about that deal. 9 1317. Q. What were they, or what did you 10 think? 11 A. Well, I was very disappointed that 12 these discussions had gone as far as they had gone 13 without our knowledge of them. And that I...I 14 thought it was problematic, and I said to Matt 15 Gillis at the time that when he...I am not sure who 16 wrote first to say that this deal was in place, but 17 the issue was, then, the title, the name "Hockey 18 Night in Canada". 19 And I said that that was very problematic, that 20 we could not allow the theme, the name, that is, the 21 name "Hockey Night in Canada" to be given to a third 22 party like Bell without our approval. 23 1318. Q. You didn't take issue that Mr. 24 Ciccone had entitlement to enter into that kind of 25 deal with Bell Mobility, did you?

T. Agostini - 359 1 A. I think if you look at the 2 correspondence, we agreed that he could do that, but 3 that he could not call it "Hockey Night in Canada". 4 He could not allow a third party to have the name 5 "Hockey Night in Canada". 6 1319. Q. Notwithstanding that is the name of 7 the composition as registered with the copyright... 8 A. It is the name of the composition 9 when it is associated with the program, Hockey Night 10 in Canada. And no one has the right to give that 11 name to any third party. No one has the right to 12 give that name to any third party, because that name 13 belongs to CBC. 14 1320. Q. And that is part of CBC's 15 intellectual property? 16 A. Hockey Night in Canada? 17 1321. Q. Yes, the name, the trademark. 18 A. Absolutely. 19 1322. Q. And in those circumstances, you 20 refused to permit Mr. Ciccone to give the name 21 "Hockey Night in Canada" to Bell Mobility? 22 A. We did not approve the use of 23 "Hockey Night in Canada" to be given by John to 24 Bell, because it is not John's to give. 25 1323. Q. Well, that seems to me, Mr.

T. Agostini - 360 1 Agostini, to be a bit of a double standard there, 2 because you have had, apparently, no hesitation 3 giving the composition to NHL Centre Ice. 4 MS. SIMON: That is not an appropriate 5 question. 6 1324. MR. KEMP: Sure it is. 7 MS. SIMON: Don't answer that question. /R 8 9 BY MR. KEMP: 10 1325. Q. Did you not give NHL Centre Ice the 11 right to use the composition? 12 MS. SIMON: We have already covered this 13 ground. 14 1326. MR. KEMP: Let's adjourn now. 15 MS. SIMON: All right. Before we 16 adjourn, I just want to mention that we had 17 said earlier...I know that you are seeking 18 to continue discovery, and I have already 19 advised you that, as far as I am concerned, 20 you served a Notice of Examination for two 21 days, and so, our intention is not to 22 return. And I have, actually, also offered 23 to you...it is 3:45 currently. I have 24 offered you to stay until later in the day, 25 if that is necessary, but you have advised

T. Agostini - 361 1 me that that... 2 1327. MR. KEMP: No. We can go until 3 midnight. 4 MS. SIMON: ...it would still go until 5 midnight. 6 1328. MR. KEMP: Yes. We can go until 7 midnight, and I will still be asking 8 questions. 9 MS. SIMON: Well, I don't think the 10 reporter would agree to that. 11 1329. MR. KEMP: Of course not. 12 MS. SIMON: And I don't want to speak... 13 1330. MR. KEMP: Nor do I ask that of her. 14 MS. SIMON: I don't want to speak for 15 either of our clients, but that is my 16 position. 17 1331. MR. KEMP: Fine. I am entitled to 18 finish my Examination for Discovery, and I 19 am going to do so. And if necessary, I 20 will serve new Notices of Examination, 21 hopefully with your cooperation. If you 22 are going to take the position that I am 23 somehow precluded from continuing an 24 examination that is not yet complete, you 25 can do so.

T. Agostini - 362 1 It seems to me we are going to have to 2 have a Motion on the multitude of 3 undertakings and refusals, in any event. 4 And I guess if you are going to argue that 5 Motion, or make that argument at the time, 6 so be it. It is the first time I have ever 7 encountered the position, so... 8 MS. SIMON: Okay. Well, as long as you 9 know that that is my view. 10 1332. MR. KEMP: Yes. You can make the 11 argument. I think a unique proposition of 12 law. 13 MS. SIMON: I very much doubt that. 14 15 16 17 18 19 REPORTER'S NOTE: 20 21 Please be advised that any undertakings, objections, under advisements and 22 refusals are provided as a service to all counsel, for their guidance only, and do 23 not purport to be legally binding or necessarily accurate and are not binding upon 24 Victory Verbatim Reporting Services Inc. 25 26 27

T. Agostini - 363 1 I hereby certify the foregoing to be a true and accurate transcription of the 2 above noted proceedings held before me on the 16th DAY OF MARCH, 2006 3 and taken to the best of my skill, ability and understanding. 4 5 } 6 } Certified Correct: 7 } 8 } 9 } 10 } 11 } ___________________________ 12 } Michelle L. Cabuga 13 } Verbatim Reporter 14 } 15