Laura M. Wagner

The appellants, Cana International Distributing Inc. and Micheline Ciolli, appealed a trial judgment dismissing their claim for breach of an exclusive distribution agreement with Standard Innovation Corporation for the distribution of the We-Vibe product.

The appellants claimed separate agreements existed for both the mainstream retail market and the adult industry market.

The trial judge found no binding agreements existed.

The Court of Appeal allowed the appeal in part, finding that a binding mainstream agreement was reached when the parties signed a term sheet in counterpart in August-September 2009, and that the trial judge made palpable and overriding errors of fact and an extricable error of law in finding otherwise.

The Court upheld the trial judge's finding that no adult industry agreement was reached.

The Court also dismissed the appellants' arguments regarding quantum meruit and qualified privilege defences.

The plaintiff Ontario corporation sued the defendant Northern Ireland corporation for breach of contract regarding the delivery of a waste recycling facility.

The defendant moved to stay the action, arguing lack of jurisdiction or forum non conveniens based on a forum selection clause in its standard terms and conditions.

The court found it had jurisdiction simpliciter due to a real and substantial connection to Ontario.

However, the court stayed the action, finding that the plaintiff was bound by the forum selection clause and failed to show strong cause why it should not be enforced.

The appellants appealed a summary judgment decision regarding a software licensing dispute.

The motion judge found that the respondent breached the licence agreement and infringed copyright by using the software on operating systems other than AIX, but did not breach the agreement by using it on multiple servers.

The Court of Appeal upheld the motion judge's interpretation of the contract, finding no server restriction but confirming the AIX operating system restriction.

However, the Court allowed the respondent's cross-appeal in part, finding that the motion judge erred in dismissing the estoppel defence regarding the AIX restriction, and directed that the estoppel issue proceed to trial alongside the limitation defence and damages.

In this costs endorsement following a summary judgment ruling on liability in a software licence and copyright dispute, the plaintiffs sought partial indemnity costs of both the motion and the action to date.

The court held it was premature to award costs of the motion because the action had been bifurcated by the plaintiffs and the defendant had an outstanding monetary offer to settle the entire action, engaging the potential costs consequences of Rule 49.10(2).

The court declined to award action costs at this stage and deferred entitlement to motion costs until after the damages trial.

It nevertheless fixed the plaintiffs' partial indemnity costs of the summary judgment motion at $280,000 inclusive, should those costs later be awarded.

On a summary judgment motion in a software licensing dispute, the court interpreted a licence agreement governing enterprise use of document conversion software.

The court held that the agreement did not impose a one-server-per-licence restriction, but it did restrict use to the AIX platform and to association with IBM's CMOD database.

The moving parties obtained declarations that use outside those limits breached the licence and infringed copyright under the Copyright Act.

Estoppel and limitation defences based on technical support knowledge did not raise a genuine issue requiring a trial on liability.

Damages were directed to a trial rather than a reference.