Matthew B. Lerner

The appellant employer appealed a trial judgment that dismissed its copyright claim under s. 13(3) of the Copyright Act over competing software secretly developed by a former employee.

The trial judge found the software was not created "in the course of employment" because the employee's actual responsibilities were limited to developing the employer's existing software, he was not directed to create new products, and the employer did not expend resources on the competing software's development.

The Court of Appeal upheld the decision, holding that the proper test under s. 13(3) focuses on the employee's actual assigned responsibilities, not the class of work the employer could have directed, and found no palpable and overriding error in the trial judge's factual findings.

The applicant employer sought an interlocutory injunction to enforce non-competition and confidentiality clauses against a former employee who resigned and joined a competitor.

The employee had signed an employment agreement and later a shareholder agreement containing broader restrictive covenants.

The court dismissed the motion, finding the applicant failed to establish a strong prima facie case that the restrictive covenants were reasonable or enforceable, as they were overly broad and ambiguous.

The court also found no evidence of irreparable harm, as the applicant's claims of misused confidential information were speculative, and the balance of convenience favoured the employee.

The plaintiff suffered a fractured femur and a pulseless leg following a motorcycle accident.

He was treated in the emergency room by the defendant physician, who failed to urgently transfer him to a trauma centre or communicate the pulseless nature of the limb to the trauma team leader.

Due to the delay in transfer, the plaintiff's leg became unsalvageable and was amputated.

The court found the defendant physician breached the standard of care and that this breach caused the amputation.

The court awarded the agreed-upon damages without deduction for statutory accident benefits or OHIP subrogated claims.

The applicants, a syndicate of lenders and various construction trades, sought declarations that the respondent surety could not rescind performance and payment bonds issued for a hospital redevelopment project.

The surety had discovered alleged fraud and collusion in the procurement process and commenced a separate action for rescission.

The applicants argued they were innocent third parties whose rights under the bonds could not be defeated by the alleged fraud of the principals.

The court dismissed the applications, finding that the applicants' rights were derivative of the principals and that rescission remained a possible equitable remedy that must be determined on a full factual record at trial.

The plaintiff pharmaceutical manufacturer sued the corporate defendants and their sole director, a pharmacist, alleging unauthorized 'vial-splitting' of a specialty ophthalmic drug.

The individual defendant moved to strike the claims against him personally, arguing they duplicated the claims against the corporate defendants.

The court struck the intentional tort claims but allowed the negligence and unjust enrichment claims to proceed, finding it possible the individual acted in his personal capacity as a pharmacist.

The plaintiff also successfully moved to strike a paragraph in the statement of defence that referenced the contents of its complaint to the Ontario College of Pharmacists, as such contents are inadmissible under section 36(3) of the Regulated Health Professions Act.

The applicant sought specific performance of an agreement of purchase and sale for a commercial property needed for a land assembly development.

The respondents repudiated the agreement, arguing that the wife was coerced into signing and did not sign all portions of the document.

The court found that a binding agreement was formed, rejecting the coercion claims as unsupported and finding the signatures sufficient.

The court granted specific performance, holding that the property was unique to the applicant's development plans and damages would be inadequate.

Following the dismissal of the defendant's motion for leave to serve and rely on a late expert report, the parties could not agree on costs.

The plaintiff sought substantial indemnity costs of over $20,000, arguing the defendant's conduct warranted a punitive scale.

The court found the defendant's position on the motion was arguable and did not constitute an intentional breach of a prior order.

Applying the factors in Rule 57, the court awarded the plaintiff partial indemnity costs fixed at $10,000 plus HST.

The defendant brought a motion to impose penalties on the plaintiff for civil contempt regarding a failure to provide access to corporate records.

The plaintiff brought a cross-motion for a declaration that he had purged his contempt.

The court found that the plaintiff had made good faith efforts to comply with the order and had purged his contempt.

The court imposed a fine of $5,000 for the initial contempt and ordered that the previous contempt order be set aside upon payment of the fine.

Following a successful motion for partial summary judgment, the moving party sought costs on a substantial and full indemnity basis, arguing the responding party acted unreasonably and for the purpose of delay.

The responding party denied lengthening the proceeding and argued the costs sought were disproportionate.

The court found the responding party did not act unreasonably solely for delay, but awarded costs on a partial indemnity basis up to the date of the moving party's offers to settle, and on a substantial indemnity basis thereafter.

Costs were fixed at $32,500 inclusive.

The plaintiff recruitment firm brought a motion for partial summary judgment for unpaid invoices relating to executive placements.

The defendant did not oppose the judgment but sought a stay of execution pending the resolution of its counterclaim against the co-plaintiff financial advisory firm.

The court granted the partial summary judgment and dismissed the request for a stay, finding that the co-plaintiffs were separate corporate entities, the underlying transactions were completely unrelated, and the equities favoured allowing the plaintiff to enforce its judgment without delay.

Following dismissal of a trustee’s motion seeking directions to terminate certain condominium purchase agreements, the court addressed costs.

The purchasers sought costs against the trustee or alternatively against mortgagees who supported the trustee’s position.

The court held that although the mortgagees were not formal parties to the motion, they actively participated and had a direct financial interest in the outcome, making it appropriate to hold them responsible for costs.

The court also considered principles governing costs for self-represented litigants and limited recovery to proven disbursements where no foregone remunerative activity was demonstrated.

Costs were awarded to the purchasers and made payable jointly and severally by the mortgagees.

The court-appointed Trustee of an insolvent condominium development brought a motion for advice and directions, seeking permission to terminate pre-sale purchase agreements for buyers who had purchased two parking units, due to a shortage of parking spaces in the building.

The Trustee proposed that these buyers relinquish one parking space for a price reduction, or face termination of their agreements.

The court applied the test of balancing the equitable considerations of all stakeholders.

Finding that the mortgagees had accepted the risk of the parking shortage and that the purchasers would suffer significant financial hardship and loss of equity if their agreements were terminated, the court dismissed the Trustee's motion.

The plaintiff was defrauded by its employee, who used some of the stolen funds to pay criminal restitution to his former employer, whom he had previously defrauded.

The plaintiff sued the former employer and its principal for knowing receipt and unjust enrichment, seeking to trace and recover the funds.

The court dismissed the action, finding that the plaintiff could not reliably trace the funds, the defendants lacked constructive knowledge of the second fraud when they received the payments, and there was a valid juristic reason for the defendants' enrichment.

The plaintiff sought an interlocutory injunction against former key employees and contractors who started a competing business.

The plaintiff alleged breach of fiduciary duty and breach of confidence.

The court found that the plaintiff established a strong prima facie case that the defendants breached their fiduciary duties and duties of confidence by using the plaintiff's confidential information and business opportunities.

The court granted the interlocutory injunction for six months, finding that the plaintiff would suffer irreparable harm and the balance of convenience favoured the plaintiff.