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.
