Hannah Arthurs

The applicant, Trader Corporation, operating digital marketplaces for vehicles, alleged copyright infringement by the respondent, CarGurus, Inc., a competitor, for posting photos taken by Trader's photographers on its own website.

Trader sought a declaration of infringement, a permanent injunction, and statutory damages.

The court found that Trader owned copyright in 152,532 photos and that CarGurus infringed them.

The fair dealing defence was rejected, and CarGurus was not considered an "information location tool" exempt from statutory damages.

However, the court found that the minimum statutory damages of $500 per photo would be grossly disproportionate and reduced the award to $2 per photo, totaling $305,064.

Requests for punitive damages and a permanent injunction were dismissed.

Following a successful application compelling production of documents, the applicant sought costs including substantial indemnity costs from the date of a Rule 49 offer to settle.

The court held that the offer contained an element of compromise and that the judgment obtained was more favourable than the offer, justifying substantial indemnity costs from the date of the offer.

The court rejected arguments that senior counsel duplication and hourly rates were unreasonable, noting that outdated cost grid guidelines were unrealistic for complex commercial litigation.

Applying a methodology of awarding 60% of actual time for partial indemnity costs and 90% for substantial indemnity costs after the offer, the court found the claimed costs fair and reasonable.

Costs of $100,000 were ordered payable solely by the general partner respondent and not reimbursable by the limited partnership.

The applicant, a limited partner, brought an application for the production of financial records and forecasts from the respondent limited partnership.

The respondents refused, relying on a confidentiality clause in the limited partnership agreement.

The Superior Court of Justice granted the application, finding that while partners can contract out of the right to information provisions in the Limited Partnerships Act, the specific confidentiality clause did not apply to the broader financial documents sought.

The court also held that a limited partner is not required to provide a reason for seeking information to which they are statutorily entitled.

The defendants brought a motion to compel answers to undertakings and refusals arising from the plaintiff’s examination for discovery in a commercial dispute alleging breach of contract, breach of fiduciary duty, and misuse of proprietary information following the departure of key employees to a competitor.

The court applied the relevance principles under Rules 31.06 and 30.02 of the Rules of Civil Procedure and the governing jurisprudence on discovery scope.

Some questions and undertakings were ordered answered where they were relevant to damages, business dealings, or the alleged misuse of confidential materials, while others were refused as speculative or unrelated to the pleaded issues.

The court also addressed requests for commercially sensitive documents, ordering production of certain manuals and a DVD containing returned documents subject to a confidentiality agreement but rejecting a “counsel eyes only” restriction.

The plaintiff was ordered to provide outstanding undertakings and answers within 45 days and to attend for a further seven hours of discovery.

The defendants brought a motion under r. 21.01(1)(a) of the Rules of Civil Procedure seeking to dismiss the action on the basis that it was statute-barred under the Limitations Act, 2002.

The plaintiff alleged breach of trust under the Construction Lien Act relating to unpaid amounts for labour, materials, and equipment provided on a construction project.

Although the plaintiff had commenced an earlier action for breach of contract concerning the same project, the court held that it was not plain and obvious from the pleadings that the limitation period had expired.

The court found that unresolved factual issues—such as the status of holdback funds and the timing of payments—could affect the limitation analysis.

Accordingly, the motion to strike the claim as statute-barred was dismissed.

Two related applications arose from a commercial arbitration concerning a Liquidity Payment obligation under a financing arrangement between a dairy company and a pension fund.

The moving party sought to set aside a final arbitral award under s. 46(1) of the Arbitration Act, 1991, alleging breaches of procedural fairness and arguing the arbitrator’s contractual interpretation was unreasonable.

The court held the arbitration process was fair, the parties had adequate opportunity to present their cases, and the arbitrator’s interpretation of the Liquidity Payment Agreement was consistent with its plain language.

The application to set aside the award was dismissed.

The responding party’s application to enforce the arbitral award and supplementary costs award was granted, with interest fixed at 3% in accordance with the contract and applicable statutory rates.